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Thomas v. New York City Dep't of Educ.

United States District Court, E.D. New York

March 29, 2013

ANNA-MARIE THOMAS, Ed.D., Plaintiff,
v.
THE NEW YORK CITY DEPARTMENT OF EDUCATION, f/k/a BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF NEW YORK, et al., Defendants

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For Anna-Maria Thomas, Ed. D., Plaintiff: Joy Hochstadt, Joy Hochstadt, P.C., New York, NY.

For New York City Department of Education, formerly known as, Board Of Education of the City School District of the City of New York, Joel I. Klein, Individually and as Chancellor of the City School District of the City of New York, Robert Finley, Individually and in his official capacity as Principal of Brooklyn High School of the Arts, John Reedy, Individually and in his official capacity as Assistant Principal of Brooklyn High School of the Arts, Daniel Paradis, Individually and in his official capacity as Teacher at Brooklyn High of the Arts, Margaret Lacey-Berman, Individually and in her official capacity as Principal of Brooklyn High School of the Arts., Defendants: Maxwell Douglas Leighton, LEAD ATTORNEY, New York City Law Department, New York, NY.

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MEMORANDUM AND ORDER

SANDRA L. TOWNES, United States District Judge.

Plaintiff Anna-Marie Thomas (" Plaintiff" ), a teacher employed by defendant New York City Department of Education (the " DOE" ), brings this action against the DOE; its former Chancellor, Joel I. Klein; and four individuals who, at certain times relevant to this action, worked with Plaintiff at the Brooklyn High School of the Arts (collectively, the " BHSA Defendants" ). Plaintiff's complaint (the " Complaint" ) principally alleges employment discrimination, advancing causes of action under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq . (the " ADEA" ); the Americans with Disabilities Act, 42 U.S.C. § 12112(a) (the " ADA" ); the New York State Human Rights Law, N.Y. Exec. L. § 296 (the " NYSHRL" ); and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq . (the " NYCHRL" ), and alluding to -- but not specifically alleging -- violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . However, the Complaint also includes a claim pursuant to 42 U.S.C. § 1983, alleging violations of the Due Process and Equal Protection Clause of the Fourteenth Amendment, and state-law claims for negligent and intentional infliction of emotional distress.

Defendants -- all six of whom are represented by the Corporation Counsel of the City of New York -- now move to dismiss this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants argue that certain of Plaintiff's employment discrimination claims are time-barred, that most of Plaintiff's six causes of action fail to state a claim, and that Plaintiff's claims under the NYSHRL and NYCHRL must be dismissed because the Complaint does not allege that Plaintiff filed a notice of claim as required by section 3813 of the New York Education Law. For the reasons set forth below, defendants' motion is granted in part and denied in part.

BACKGROUND

Unless otherwise indicated, the following facts are drawn from the Complaint and are assumed to be true for purposes of this motion to dismiss.

Plaintiff was 64 years old and had been employed by defendant DOE for 35 years at the time this action was commenced (Complaint at ¶ ¶ 11, 18). Plaintiff began her career with the DOE in 1973, and became " permanently certified" and unconditionally tenured in 1978 ( id. at ¶ ¶ 22-23). At all times relevant to this action, Plaintiff held New York State and City licenses to teach physical education (including health) and to work as a Secondary School Guidance Counselor ( id. at ¶ ¶ 20-21). In 2002, after working for many years at Boys and Girls High School in Brooklyn,

Plaintiff was " recruited" to work at the newly established Brooklyn High School of the Arts (" BHSA" ) ( id. at ¶ ¶ 24-25).[1] At that time, Plaintiff wanted to work as a guidance counselor -- a job that paid $3,000 more annually than did her job as a physical education teacher ( id. at ¶ 32). However, because BHSA had only ninth- and tenth-grade students when it opened in

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September 2002, BHSA did not yet need guidance counselors ( id.). Accordingly, Plaintiff agreed to work at BHSA on the condition that she " would be appointed as a guidance counselor as the need arose" ( id.).

In each of the next three academic years, BHSA hired one new guidance counselor. In both of the first two years, Plaintiff was " passed over for the Guidance Counselor position" in favor of women in their mid-thirties ( id. at ¶ ¶ 30-31). In September 2005, defendant Robert Finley -- then the principal of BHSA -- appointed Drew Martir, a teacher whom Plaintiff believed to be in his mid-twenties, even though Martir was not certified to work as a guidance counselor ( id. at ¶ 44). According to Plaintiff, Martir nonetheless " did the same work as a guidance counselor," even though he could not receive the $3,000 annual pay differential ( id.).

In October 2006, Plaintiff, who had been teaching health to ninth-graders since 2003, was assigned to replace Dr. Catherine Cabeza, a physical education teacher who had been granted an " extended Health Restoration Leave" ( id. at ¶ ¶ 46-47). This new assignment involved " team-teaching" in that Plaintiff taught the girls while defendant Daniel Paradis, a 30-year-old Spanish teacher who was then working toward a physical education teaching license, taught the boys ( id. at ¶ ¶ 48-49, 70). Plaintiff " sensitively attempted to mentor" Paradis by, inter alia, " politely and cautiously" suggesting to Paradis that " many of his practices created hazards" to the students' safety ( id. at ¶ ¶ 51, 53). Paradis apparently did not welcome this mentoring, but became " more and more reactive and agitated when Plaintiff interacted with him" ( id. at ¶ 53).

Tensions also developed when Plaintiff discontinued a practice, developed prior to Dr. Cabeza's departure, of having two girls attend the boys' class for purposes of taking attendance ( id. at ¶ ¶ 54-55). Believing that the girls' " regular non-attendance at class and . . . performance of a teacher-only duty of making entries on the official attendance records were both highly impermissible," Plaintiff entered Paradis's class to retrieve the two girls ( id. at ¶ 56). When she did so, " Paradis became highly irate and made various utterances to indicate that he believed that plaintiff was overreaching her authority . . ." ( id. at ¶ 57). At some point thereafter, while speaking to Plaintiff, Paradis " threw up to Plaintiff that she was the highest paid teacher in the school" ( id. at ¶ 58). According to Plaintiff, that information " could only have been shared with . . . Paradis by school administration" ( id. at ¶ 60).

Tensions escalated on December 4, 2006, when Plaintiff retrieved gym equipment from " a common-use room to which all Phys. Ed. Faculty had access" ( id. at ¶ ¶ 61-62). At around 1:30 p.m., Paradis approached Plaintiff in a corridor near the students' locker room, calling her " crazy" and otherwise shouting at her for having taken the equipment from " his office" ( id. at ¶ 63). Although Paradis did not actually strike her, Plaintiff alleges that his " menacing tirade would have resulted in aggravated assault" had a third-party not stepped between them ( id. at ¶ 65).

Plaintiff promptly reported the incident to Finley and defendant John Reedy, an Assistant Principal, telling them that she no longer felt safe team-teaching with Paradis and would not conduct her classes in his presence ( id. at ¶ ¶ 69-70). Although Plaintiff specifically requested that they " admonish . . . Paradis for his inappropriate conduct unbecoming a professional," Finley and Reedy took no action whatsoever ( id. at ¶ ¶ 71-72). Indeed, Plaintiff alleges that Finley " encouraged . . . students to whisper behind her back as they went

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around and signed a petition to have her fired." Id. at ¶ 174.

Finley's inaction " emboldened" Paradis, and Plaintiff " experienced an all-encompassing pervasive hostile work environment that she found intolerable" ( id. at ¶ 78). According to Plaintiff, " [t]he acquiescence that BHSA administration displayed . . . made Plaintiff suspect that there came a time when . . . Paradis was being encouraged to create the hostile work environment so as to harass Plaintiff" ( id. at ¶ 74).

Plaintiff's Reassignment to a Teacher Reassignment Center

On November 16, 2007, Finley, in the presence of Reedy, handed Plaintiff a letter informing her that she was being " reassigned, effective immediately, pending investigation" into an allegation made against her ( id. at ¶ ¶ 85-88). Although Finley initially claimed to have " no idea" as to what prompted the reassignment, Plaintiff subsequently learned that Finley himself had requested a psychiatric examination of Plaintiff ( id. at ¶ ¶ 90, 103-04).

On November 19, 2007, Plaintiff was assigned to a Teacher Reassignment Center (" TRC" ), colloquially referred to as a " rubber room" ( id. at ¶ ¶ 95-98). On January 3, 2008, Plaintiff was evaluated by a DOE staff psychiatrist, who " shar[ed]" Finley's request with Plaintiff ( id. at ¶ ¶ 103-04).[2] Appended to Finley's request were statements from six students who asserted that Plaintiff had made inappropriate comments in class on November 1, 2007 ( id. at ¶ ¶ 104-05). Plaintiff, who denies making the inappropriate comments, alleges that two of the statements were made by students who were not enrolled in any of Plaintiff's class, and that the other four statements were made by students who had just received failing grades from Plaintiff on their report cards ( id. at ¶ ¶ 105-06).

Although the psychiatrist found Plaintiff " fit for duty," Plaintiff remained in the TRC and did not even " become aware of the charges against her" until June 18, 2008 ( id. at ¶ ¶ 99, 110). An arbitrator was not appointed to Plaintiff's case until October 21, 2008, and a pre-hearing conference was not held until November 14, 2008 ( id. at ¶ ¶ 153, 157). The hearing itself began on February 10, 2009, but did not conclude until June 24, 2009 ( id. at ¶ ¶ 164-65). During that hearing, Finley produced transcripts to show that the four students whom Plaintiff had failed were passing Plaintiff's class. Plaintiff " alleges that . . . Finley changed their grades to passing, either as a quid pro quo for their statements or simply to demonstrate that they had no motive to retaliate against Plaintiff" ( id. at ¶ ¶ 108-09). Plaintiff was " completely cleared of all charges" on July 13, 2009 ( id. at ¶ 169).

Plaintiff alleges that she suffered both physically and mentally during her time in the TRC. Plaintiff alleges that she had been walking " with a slight limp" for " about a year prior to her entry to the 'TRC,'" but had been able to improve her condition by exercising ( id. at ¶ 136). After her reassignment, Plaintiff " began doing walking exercises . . . to exercise the muscles of her right hip and leg" in the hallway at the TRC, but nonetheless spent much of her work day sitting ( id. at ¶ ¶ 136, 138). According to Plaintiff, " her mobility decreased dramatically once her physical activity in the gymnasium ended" and by January 2008 she was " relegated to using crutches to ambulate" ( id. at ¶ ¶ 137, 139). Plaintiff " remained on crutches until she

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eventually had a right total hip replacement on . . . July 9, 2009" ( id. at ¶ 138).

Plaintiff also alleges that the TRC also took a mental toll. From December 14, 2007 -- when she received a letter directed her to report for the psychiatric exam -- until the January 3, 2008, examination, Plaintiff " endured anxiety, trauma, constant fear, sleeplessness and trepidation" ( id. at ¶ ¶ 100, 112). Plaintiff was so worried that she might be found unfit that she obtained two independent psychiatric evaluations at her own expense ( id. at ¶ 115). Even after she was found fit, Plaintiff remained fearful, unsure of " what was happening or why it was happen[ing] to her," and whether she would be able to exonerate herself ( id. at ¶ ¶ 122, 128). Her fear was shared by the other teachers at the " overcrowded" TRC, rendering them short-tempered and " territorial," and making the TRC and " emotionally charged," " depressing place" ( id. at ¶ ¶ 119-26, 144).

Plaintiff implies that the disciplinary charges resulted from policies introduced by defendant Joel I. Klein, then Chancellor of the DOE. According to Plaintiff, Klein stated that the DOE needed " new blood" and needed to " 'clean house of the old ways' and teachers 'wedded to old methods'" ( id. at ¶ 171). Plaintiff alleges that these statements were " signals to purge the system of veteran tenured teachers at the top of the pay scale," and that Klein " intentionally and unlawfully" undermined Plaintiff's " property right" in her tenured position ( id. at ¶ ¶ 171-72).

Plaintiff's Return to BHSA

On September 8, 2009, Plaintiff was returned to active service at BHSA ( id. at ¶ 178). As the most senior teacher in the school, Plaintiff should have been given her preferred assignment ( id. at ¶ 181). However, defendant Margaret Lacey-Berman, who had replaced Finley as the Principal of BHSA, claimed that she had no positions available ( id. at ¶ 179). Instead, Lacey-Berman had Assistant Principal Reedy " assign [Plaintiff] on a daily basis, as needed ( id. at ¶ 180).

Initially, Reedy assigned Plaintiff to answer telephones as the school's operator ( id. at ¶ 181). After Lacey-Berman stated that she " would not pay Plaintiff to answer the phone," Reedy assigned Plaintiff to teach two yoga classes ( id. at ¶ ¶ 182, 186). Upon learning of this assignment, however, Lacey-Berman questioned whether Plaintiff was ready to engage in gym activities so soon afer her hip surgery and sent Plaintiff to the Medical Bureau for clearance ( id. at ¶ 187). The Medical Bureau " denied her clearance due to the fact that her physician did not want her to have unrestricted activities quite so soon after her . . . surgery" ( id. at ¶ 188).

Plaintiff then applied for a workplace accommodation under Title I of the ADA, asking to teach health for the balance of the Fall semester ( id. at ¶ 191). However, Plaintiff was denied that accommodation because Lacey-Berman claimed to need Plaintiff to teach physical education ( id. at ¶ ¶ 192-94). Thereafter, the Medical Bureau found Plaintiff " unfit for duty" effective November 17, 2009, and Lacey-Berman removed Plaintiff from the payroll until she was fit to teach gym classes again ( id. at ¶ ¶ 195-96). As a result, Plaintiff lost wages from November 19, 2009, to January 8, 2010 ( id. at ¶ 197).

The Instant Action

On February 3, 2010, Plaintiff commenced this action against the DOE, Chancellor Klein, and the BHSA Defendants: Finley, Reedy, Paradis and Lacey-Berman. The six causes of action set forth in Plaintiff's Complaint allege violations of the ADEA, ADA, 42 U.S.C. § 1983 and various New York State and City laws. While the Complaint also mentions Title VII of the Civil Rights Act of 1964 ( id. at ¶ ¶ 1, 8),

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none of the six causes of action allege violations of this statute.

The first cause of action alleges that defendants' actions violated the ADEA in that they were " undertaken to attempt to force plaintiff to resign or retire earlier than she would otherwise wish to" and " because she opposed defendants' illegal acts of age discrimination" ( id. at ¶ 202). This cause of action accuses all defendants of " harassing plaintiff, creating a hostile work environment, and initiating disciplinary charges seeking plaintiff's termination" ( id.). The first cause of action also alleges " retaliation against plaintiff on the basis of her . . . opposition to age discrimination," but does not specify any allegedly retaliatory actions ( id. at ¶ 205).

The second cause of action alleges a violation of the ADA. In this cause of action, Plaintiff asserts that she is physically disabled by virtue of the " hip dysfunction that required a total right hip replacement," that this disability " started before her surgery" and " continued for at least six months post operatively," and that this dysfunction " continues to affect her ability to move about" ( id. at ¶ ¶ 208-09). The second cause of action alleges that all defendants violated the ADA by " harassing plaintiff, creating a hostile work environment, refusing to grant plaintiff accommodations, requiring her to remain at home and lose almost two moths [ sic ] wages, subjecting plaintiff to unfair and abusive tactics, refusing to give her a teaching schedule that accommodated her short term medical needs, [and] not acknowledging that plaintiff was acquitted of all disciplinary charges seeking plaintiff's termination" ( id. at ¶ 211). Plaintiff alleges that all of these actions were " taken to deny Plaintiff her tenure [and to] attempt to force plaintiff to retire earlier than she would otherwise wish to, and . . . because of the plaintiff's disability" ( id.). This cause of action does not specifically allege retaliation, but states that these actions were undertaken because Plaintiff " opposed defendants' illegal acts of disability discrimination" ( id.).

The third and fourth causes of action allege violations of the NYSHRL and NYCHRL, respectively. In contrast to the first two causes of action -- which specifically allege that " Plaintiff has satisfied all the procedural and administrative prerequisites to suit" ( id. at ¶ ¶ 204, 213) -- the third and fourth causes of action do not mention whether Plaintiff ever filed a notice of claim. However, the Complaint does allege that Plaintiff filed an " EEOC Charge" on April 8, 2008 ( id. at ¶ 7).

The fifth cause of action alleges that Klein and the BHSA Defendants violated 42 U.S.C. § 1983 (" section 1983" or " § 1983" ). This cause of action principally alleges that these defendants violated Plaintiff's Fourteenth Amendment rights to due process and equal protection of the laws by instituting " false charges," by creating " a hostile work environment" and otherwise discriminating " in the terms and conditions of public employment on the basis of age [and] disability," and by retaliating against Plaintiff for opposing those discriminatory practices ( id. at ¶ 225). The § 1983 cause of action also implies that some of these defendants are liable for failing " to remedy the violation of plaintiff constitutional rights after being informed of it," for creating or permitting " a policy or custom under which the unconstitutional practices occurred," for " grossly negligent" supervision of subordinates, and for exhibiting " deliberate indifference by failing to act on information indicating that the unconstitutional acts were occurring" ( id. at ¶ 228). In addition, the fifth cause of action implies that the DOE was liable because the " policy or custom of the defendants" was " reviewed by and adopted by" DOE " by virtue of

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their initiation of disciplinary charges" ( id. at ¶ 229).

The sixth cause of action alleges tort claims for " negligent and intentional infliction of emotional distress." This cause of action does not name specific defendants but alleges that " Plaintiff was subjected to public humiliation, false accusations, verbal abuse, harassment, loss of employment, conduct contrary to public policy, defamation, threat of bringing or prosecution of false charges used to coerce or force resignation, improper initiation and conduct of disciplinary actions, which are designed to prevent Plaintiff from the exercise of her rights to pursue vindication through the 3020-a procedures, and forced submission to embarrassing and unnecessary medical examinations" ( id. at ¶ 236). Plaintiff alleges that all of these acts were " part of a pattern through which Defendants sought to force Plaintiff to retire or quit," and were " improper and unlawful" ( id. at ¶ ¶ 237-38).

The body of Plaintiff's Complaint alleges various issues relating to the DOE's disciplinary procedures. Specifically, a section entitled, " The 3020-a Hearings," alleges that certain deadlines set forth in Education Law § 3020-a and in the DOE's collective bargaining agreement were not met and that Education Law § 2590-j, which exempts the DOE from certain requirements of § 3020-a, " should be struck down" as violating due process ( id. at ¶ ¶ 147-48, 152-167). However, these issues are not raised in any of the six causes of action or in the ad damnum clause. Rather, the Complaint requests only a declaration that defendants have violated the ADEA, the ADA, the New York State and City Human Rights Law and Article 1 of the New York State Constitution ( id. at p. 35). The Complaint also seeks back pay, liquidated damages and compensatory and punitive damages ( id. at pp. 35-36).

Defendants' Motion to Dismiss

Defendants now move to dismiss portions of Plaintiff's Complaint. In the first of three points raised in Memorandum of Law in Support of their Motion to Dismiss (" Defendants' Memo" ), defendants -- noting that Plaintiff's Complaint specifically alleges that Plaintiff filed her EEOC charge on April 8, 2008, and that the ADEA, the ADA and Title VII all require a plaintiff to have filed an EEOC charge within 300 days of the alleged acts of discrimination -- argue that (1) the claims that Plaintiff was passed over for the guidance counselor positions in 2003, 2004 and 2005 and (2) the hostile work environment claims arising from the incidents involving Daniel Paradis are time-barred. See Defendants' Memo at 4-5. In addition, defendants argue that because claims brought under 42 U.S.C. ...


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