The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff Danielle Rausa commenced the instant action against Defendants Board of Education of the North Syracuse Central School District (the "District") and Steven Wolf, asserting claims of gender-based discrimination and retaliation under Title VII, the New York State Human Rights Law ("HRL"), and the Fourteenth Amendment; a violation of her Fourteenth Amendment rights to due process of law; a violation of New York Education Law § 3020-a; and prima facie tort and the intentional infliction of emotional distress. Presently before the Court is Defendants' motion to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12.
Plaintiff commenced working for the District in 1997. In April 2000, she was granted tenure in Music Education. Starting in June 2002, she was assigned to the Roxboro Middle School ("Roxboro") as an instrumental and vocal music teacher. Defendant Steven Wolf became principal of Roxboro in January 2008. It is claimed that, since Wolf became president, Plaintiff was the subject of "unprofessional, unproductive, and unwarranted criticisms," including reprimands placed in her personnel file. Am. Compl. at ¶¶ 16-17. Before Wolf became principal, Plaintiff had never received a reprimand.
Plaintiff first received a counseling memorandum dated February 25, 2008 concerning a disagreement she had with a male member of the music department. Plaintiff was disciplined for this incident whereas the male was not. A second incident occurred in June 2008 concerning Plaintiff's tone and statements she made to a male employee. The male employee was not disciplined. On October 20, 2008, a note was placed in Plaintiff's file concerning a meeting Plaintiff had with the administration. An additional memorandum was placed in Plaintiff's file in November 2008 that basically repeated the contents of the October 20, 2008 document.
In June 2009, Plaintiff was served with charges pursuant to New York Education Law § 3020-a. The first charge alleged that Plaintiff failed to properly supervise the Drama Club students during the 2008-09 school year. The allegations concerned an incident whereby a male student committed acts of sexual abuse against several female members of the Drama Club. The other charges alleged that Plaintiff failed to timely submit grades and engaged in misconduct concerning her interactions with various male employees. Commencing on September 8, 2009, Plaintiff was suspended without pay for thirty days. Plaintiff returned in October 2009, at which time she was placed on intensive support with the threat of remediation. Am. Compl. at ¶ 33. The charges were resolved through a settlement agreement executed in June 2010. In exchange for Plaintiff's admission concerning the untimely submission of grades, the remaining charges were dropped and Plaintiff's unpaid suspension was reduced from thirty days to five days.*fn1 Am. Compl. at ¶ 47-48.
In January 2009, Plaintiff was diagnosed with a brain tumor. She was on disability leave from September 2010 through March 14, 2011, at which time she returned to work on a part-time basis. Thereafter, she returned to work on a full-time basis. It is claimed that since that time, Plaintiff was subjected to discriminatory animus and retaliatory behavior including threats of write-ups, multiple meetings with the Administration, unfair and improper evaluations, favoritism in teaching assignments, and favoritism towards male employees.
As a result of the foregoing, Plaintiff commenced the instant action claiming that Defendants: (1) engaged in discrimination in violation of Title VII; (2) permitted a hostile work environment in violation of Title VII; (3) treated Plaintiff disparately from similarly situated male employees in violation of Title VII; (4) retaliated against Plaintiff for engaging in protected activity; (5) discriminated against Plaintiff in violation of 42 U.S.C. § 1983; (6) violated Plaintiff's rights as guaranteed by the Equal Protection Clause of the Fourteenth Amendment; (7) deprived Plaintiff of her rights without due process of law, in violation of the Fifth and Fourteenth Amendments; (8) discriminated against Plaintiff in violation of the New York Human Rights Law; (9) retaliated against Plaintiff in violation of the New York Human Rights Law; (10) Defendant Wolf aided and abetted violations of the Human Rights Law; (11) violated New York State Education Law § 3020-s; (12) intentionally caused emotional distress; and (13) engaged in prima facie tortious conduct.
Presently before the Court is Defendants' motion to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12. Plaintiff opposes the motion.
"Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99 (1957)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65. "Factual allegations must be enough to raise a right to relief above the speculative level. . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965. "'[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.'" Id. at 1965 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A complaint does not suffice "if it tenders naked assertions devoid of further factual enhancement." Ashcroft, 129 S. Ct. at 1949. Legal conclusions must be supported by factual allegations. Iqbal, at 1950. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. 557) (internal quotations omitted).
With this standard in the mind, the Court will address the pending motion to dismiss.
a. Title VII/New York Human Rights Law
Defendants first move to dismiss on the ground that most, if not all, of Plaintiff's discrimination claims are barred by the applicable statute of limitations. Plaintiff counters that her claims are timely because her causes of action accrued on June 28, 2010, the date she entered into a settlement agreement with the District concerning the charges against her.
To be timely, a charge of discrimination must be filed with the EEOC within 300 days of the alleged discriminatory act. 42 U.S.C. § 2000e-5(a); Lore v. City of Syracuse, - F.3d. -, -, 2012 WL 310839, at *31 (2d Cir. 2012). "When, as in this case, a plaintiff's allegations of discrimination extend beyond the 300-day limitations period, the nature of the claim determines what consideration will be given to the earlier conduct." Petrosino v. Bell Atl., 385 F.3d 210, 220 (2d Cir. 2004). "With respect to claims based on termination, failure to promote, denial of transfer, or refusal to hire . . . section 2000e-5(e)(1) precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period, even if other acts of discrimination occurred within the statutory time period." McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir. 2010) (internal quotations and citations omitted); see also National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002); Patterson v. County of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004).
Plaintiff filed her charge of discrimination with the EEOC on April 11, 2011.*fn2
Accordingly, any discrete incidents that occurred more than 300 days prior to April 11, 2011 (i.e. June 15, 2010) are time-barred. This includes the change in teaching assignment in 2008; the February 25, 2008, June 25, 2008, October 20, 2008, and November 11, 2008 reprimands/counseling memoranda; the charges served pursuant to N.Y. Educ. Law § 3020-a on June 16, 2009; and Plaintiff's suspension that commenced on September 8, 2009 and ceased on October 20, 2009. The Court rejects Plaintiff's argument that her claims accrued on June 28, 2010 when she entered into a settlement agreement with the District concerning the charges against her. The cause of action begins to run "at the time the . . . [alleged discriminatory] decision was made and communicated to [the plaintiff]" even though the effects of the allege discriminatory decisions are not felt until a later time. Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S. Ct. 498 (1980). The fact that there was a procedure by which the charges against Plaintiff were to be adjudicated does not alter the result. Id. (rejecting the claim that the statute of limitations should commence after the conclusion of the grievance procedure). "[T]he pendency of a grievance, or some other method of collateral review of an employment decisions, does not toll the running of the limitations period. . . . The existence of careful procedures to assure fairness in the [employment] decision should not obscure the principle that limitations periods normally commence when the employer's decision is made." Id. Here, the change in teaching assignment was effectuated when it was made known to Plaintiff at the time, the reprimands were made when they were placed in Plaintiff's file, and the decision to charge Plaintiff was made when she was served with the notice of the charges (and certainly no later than when the suspension was imposed). All these incidents occurred prior to June 15, 2010 and, therefore, are time-barred. See Woodruff v. National R.R. Passenger Corp., 403 Fed. Appx. 624 (2d Cir. 2010).
Similar reasoning applies to the claims against the District pursuant to the New York State Human Rights Law. New York Education Law § 3813(2-b) requires claims against a school district brought under the Human Rights Law to be commenced within one year. Matter of Amorosi v. South Colonie Ind. Cent. Sch. Dist., 9 N.Y.3d 367, 373 (2007). The instant action was commenced on September 27, 2011 and, accordingly, any events occurring prior to September 27, 2010 are time-barred as against the District.
Plaintiff next claims that she was subjected to a hostile work environment and, therefore, her claims are timely under the continuing violation theory.
"Hostile work environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. The 'unlawful employment practice' therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Morgan, 536 U.S. at 115, 122 S. Ct. 2061 (internal citation omitted). Accordingly, "consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as an act contributing to that hostile environment takes place within the statutory time period."
McGullam, 609 F.3d at 75. Here, it is alleged that when Plaintiff returned to work in 2011 from her leave of absence, she was subjected to threats of write-ups, multiple meetings with the administration; an improper evaluation; favoritism in teaching assignments; and "further favoritism shown toward male staff members the same as occurred prior to Plaintiff's medical leave of absence." Because these allegations reference acts that transpired within the statutory time period, her hostile work environment claim is timely and may include consideration of conduct occurring prior to June 15, 2010. Petrosino v. Bell Atlantic, 385 F.3d 210, 229 (2d Cir. 2004); Patresi v. New York State Unified Court System, 2010 WL 3781961, at *2 (E.D.N.Y. 2010); Urmey v. AT&T Corp., 2006 WL 2819627, at *2 (S.D.N.Y. 2006).
2. Hostile Work Environment
Defendants next move to dismiss the hostile work environment claim on the ground that Plaintiff fails to allege conduct related to her gender and that the conduct is insufficiently severe or pervasive. The standards governing a hostile work environment claim are well-settled. The Second Circuit has explained that: a plaintiff seeking to establish a Title VII hostile work environment claim must show that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. This severe or pervasive standard has objective and subjective elements: the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive. Courts review the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.
McGullam, 609 F.3d at 79 (internal quotations and citations omitted). Of course, the plaintiff also must show that "the conduct at issue occurred 'because of the plaintiff's sex.'" Id. at 79 n.6 (quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)).
Plaintiff's Amended Complaint (and which incorporated her Notice of Claim) alleges that the following instances comprised a hostile work environment:
a. the reprimands discussed above;
b. criticisms concerning Plaintiff's interactions with male employees, Am. ...