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Jennifer Span and Dr. Nichelle Rivers v. Enlarged City School District of Troy

September 6, 2012

JENNIFER SPAN AND DR. NICHELLE RIVERS, PLAINTIFFS,
v.
ENLARGED CITY SCHOOL DISTRICT OF TROY, BOARD OF EDUCATION OF THE TROY SCHOOL DISTRICT, THOMAS MAYO, MARY MARRO-GIROUX, ANNE WAGER-ROUNDS, ILENE CLINTON, JASON SCHOFIELD, MICHAEL TUTTMAN, MARTHA WALSH, AND STEPHANIE SCULLY, EACH IN HIS OR HER INDIVIDUAL CAPACITY, DEFENDANTS,



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Plaintiffs commenced this action pursuant to 42 U.S.C. §§ 1981 & 1983, and the New York State Human Rights Law, asserting claims of race based employment discrimination. Defendants Mayo, Marro-Giroux, Wager-Rounds, Clinton, Schofield, Tuttman, Walsh, and Scully move pursuant to Fed. R. Civ. Pro. 12(b)(6) to dismiss the claims against them. Dkt. # 7. Plaintiffs have opposed the motion, and Defendants have replied.

II. STANDARD OF REVIEW

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.

III. DISCUSSION

a. New York Human Rights Law Claims

Defendants Mayo, Marro-Giroux, Wager-Rounds, Clinton, Schofield, Tuttman, Walsh, and Scully, each individual Board Members of the Board of Education of the Enlarged City School District of Troy ("Individual Board Members"), move to dismiss Plaintiffs' New York Human Rights Law claims as untimely and because Plaintiffs failed to served them with Notices of Claim. See N.Y. Educ. Law § 3813. Plaintiffs respond by indicating that they have withdrawn all New York State Human Rights Law claims against the Individual Board Members. See, Pl. Opp. MOL, p. 13. Accordingly, Defendants' motion is granted in this regard, and all New York State Human Rights Law claims against the Individual Board Members are dismissed.

b. Section 1981 & 1983 Claims against the Individual Board Members

Next, the Individual Board Members move to dismiss Plaintiffs' claims asserting racial discrimination and retaliation pursuant to 42 U.S.C. §§ 1981 and 1983. Defendants contend that the Complaint does not plausibly assert that the Individual Board Members were personally involved in the discrimination and retaliation against Plaintiffs. Plaintiffs argue that their Complaint "clearly makes plausible showings that (1) each of the Individual Board Members voted for adverse employment actions against Span and Rivers, and (2) the Individual Board Members did so for discriminatory and retaliatory reasons, especially given the facts pleaded in the complaint that the school board had a clear pattern of treating black administrators and teachers worse than similarly situated whites, and of firing or not renewing black employees and replacing them with whites." Pl. Opp. MOL, p. 4-5.

In order to establish individual liability under § 1983, a plaintiff must show: (1) that the defendant is a "person" acting "under the color of state law;" and (2) that the defendant caused the plaintiff to be deprived of a federal right. Kentucky v. Graham, 473 U.S. 159, 166 (1985). Additionally, Second Circuit precedent requires "personal involvement of defendants in alleged constitutional deprivations" as a prerequisite to any award of damages under § 1983. Clark v. Levesque, 336 Fed. Appx. 93, 2009 WL 1941191, at *1 (2d Cir. July 8, 2009) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)); Patterson v. County of Oneida, 375 F.3d 206, 229 (2d Cir. 2004); Hernandez v. Keane, 341 F.3d 137, 144-45 (2d Cir. 2003) (personal involvement by the defendant and any alleged constitutional violation is a prerequisite to an award of damages under §1983). A complaint"that fails to allege personal involvement of the defendant is fatally flawed." Wallace v. Conroy, 945 F. Supp. 628, 638 (S.D.N.Y. 1996)(citing Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987)).

To allege personal involvement, Plaintiffs must show some tangible connection between the constitutional violations alleged and each particular defendant. See Gronowski v. Spencer, 424 F.3d 285, 293 (2d Cir. 2005). "[T]his principle applies to causes of action claiming unlawful retaliation." Amaker v. Kelley, 2009 WL 385431, at *17 (N.D.N.Y. February 9, 2009). The same standard also applies to individual liability under 42 U.S.C. §1981. See Patterson v. County of Oneida, 375 F.3d 206, 229 (2d Cir. 2004).

Personal involvement can be demonstrated in a number of ways, see Jamison v. Chapman, 2009 WL 3762348 at *10 (N.D.N.Y. November 9, 2009),*fn1 including direct participation (as is alleged here) by an Individual Board Member. Id. ("Even if the defendant is not a supervisory official, he may nonetheless be personally involved in the violation of plaintiff's civil rights if he directly participated in the unlawful conduct." ). "Direct participation as a basis of liability in this context requires intentional participation in the conduct constituting a violation of the victim's rights by one who knewof the facts rendering it illegal." Gronowski, 424 F.3d at 293 (citing Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001)); see also Pinero v. Casey, 2012 U.S. Dist. LEXIS 33825, *17-18 (S.D.N.Y. March 13, 2012).*fn2 When an allegedly discriminatory action is taken by an entity, such as the Board of Education, a participant in the decision making process may be held liable for that action if the plaintiff can demonstrate that the individual defendant acted with a improper motive and played a "meaningful role" in the decision making process, see Holcomb v. Iona College, 521 F.3d 130, 132 & 143 (2d Cir. 2008);*fn3 Ferrell v. Leake & Watts Services, Inc., 83 Fed. Appx. 342, 346 (2d Cir. 2003)(applying the standard to age discrimination claim); Bickerstaff v. Vassar College, 196 F.3d 435, 450 (2d Cir. 1999);*fn4 Hickey v. Myers, --- F. Supp.2d ----, 2012 WL 431592 (N.D.N.Y. Feb. 10, 2012) (applying the standard to claims made under Title VII and ยง 1981), or was a "moving force" behind the discriminatory treatment. See Jeffries ...

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