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Deprima v. City of New York Department of Education

United States District Court, E.D. New York

March 20, 2014

KIM DEPRIMA, Plaintiff,
v.
CITY OF NEW YORK DEPARTMENT OF EDUCATION, Defendant.

MEMORANDUM & ORDER

MARGO K. BRODIE, District Judge.

Plaintiff Kim DePrima, proceeding pro se, commenced the above-captioned action on July 20, 2012, against Defendant City of New York Department of Education alleging violations of her constitutional rights to equal protection, due process and freedom of speech or association, as well as violations of her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the New York State Human Rights Law, N.Y. Exec. Law § 296(16) ("NYSHRL"). Defendant moved to dismiss the Second Amended Complaint. (Docket Entry No. 19.) The Court referred Defendant's motion to Magistrate Judge Lois Bloom for a report and recommendation. On January 15, 2014, Judge Bloom filed a report and recommendation ("R&R") recommending that the Court grant Defendant's motion to dismiss in its entirety. (Docket Entry No. 25.) Plaintiff filed her objections on February 24, 2014.[1] (Docket Entry No. 27.) For the reasons discussed below, the Court adopts Judge Bloom's R&R, as modified, and grants leave to Plaintiff to file an amended complaint within 30 days of the date of this Memorandum and Order as specified below.

I. Background

Plaintiff was a tenured teacher at the Carteret School in Staten Island.[2] (Second Am. Compl. ¶¶ 3, 25.) For various underlying offenses, Defendant City of New York Department of Education attempted to terminate Plaintiff in 2009, 2010 and 2011. ( Id. ¶¶ 36, 40, 47.) In accordance with New York Educational Law, each termination attempt resulted in a hearing before an impartial hearing officer ("IHO"), the procedures for which are outlined in New York Educational Law § 3020-a. See N.Y. Educ. Law §§ 3020 and 3020-a. Each § 3020-a hearing and the underlying events are discussed below.

In 2008 Plaintiff, along with another individual, failed to control dogs under their control. ( See Impartial Hearing Officer Decision and Order dated Nov. 10, 2009 ("2009 IHO Decision and Order") 4, annexed to Second Am. Compl. as Ex. A.). The dogs escaped and caused serious injury to Plaintiff's 90-year-old neighbor, resulting in his death. ( Id. ) Plaintiff pled guilty to manslaughter in the second degree. ( Id. at 5.) Pursuant to New York State Education Law § 3020-a, Defendant sought disciplinary action against Plaintiff for engaging in "criminal conduct, conduct unbecoming her profession and... excessive[] absen[ce]." ( Id. at 1.) The IHO held that "substantial punishment" was necessary but "termination [was] not the appropriate penalty for the neglect of duty and conduct unbecoming a professional that is proven on this record." ( Id. at 23.)

In 2010, Defendant sought disciplinary action against Plaintiff for alleged fraud and deceit in the form of taking paid sick-leave rather than unpaid leave to attend court proceedings in Richmond County. (Impartial Hearing Officer Decision and Order Dec. 3, 2010 ("2010 IHO Decision and Order") 2, annexed to Second Am. Compl. as Ex. B.). The IHO held that Defendant did not "prove[] that [DePrima] had submitted any false documents" and, therefore, denied the termination attempt but did impose a fine of $500.00 for taking an improper day of sick leave. ( Id. at 13; Second Am. Compl. ¶ 45.)

In January 2011, Plaintiff was arrested for taking part in a "domestic dispute." (Second Am. Compl. ¶ 48; see also Aug. 30, 2011 Transcript of County of Richmond Criminal Court Proceedings 2:14-3:12, annexed to Second Am. Compl. as Ex. D.) On the night in question, Plaintiff attended a birthday party at the home of her former neighbor Lakeisha Dennis. (Pl. Article 75 Opp'n Mot., Part I at 1, annexed to the Decl. of Benjamin Welikson as Ex. 2.) At some point, two "associates" of Plaintiff's became involved in a dispute with Plaintiff's exboyfriend Jermaine Gavins. ( Id. ) One "associate, " Shawn Hicks, was intoxicated and, refusing to leave, fired shots at the door of Gavins' home. ( Id. ) Hicks then got into Plaintiff's car, pointed the gun at Plaintiff and told her to drive. ( Id. ) Plaintiff drove to a local bar where she was eventually arrested by police. ( Id. ) On January 9, 2011, Plaintiff was arraigned in criminal court on charges of attempted murder, possession of a weapon and reckless endangerment. ( Id. ) The criminal charges against Plaintiff were eventually dismissed with prejudice on August 30, 2011. (Second Am. Compl. ¶ 50.)

Defendant commenced another proceeding against Plaintiff for engaging in "criminal conduct and conduct unbecoming her profession as a teacher." ( See Impartial Hearing Officer Decision and Order Nov.14, 2011 ("2011 IHO Decision and Order") 1-2, annexed to Second Am. Compl. as Ex. C; Second Am. Compl. ¶ 47.) After eight days of hearings, between June 21, 2011 and September 23, 2011, the IHO found that Plaintiff "engaged in conduct unbecoming her profession, ... that this conduct resulted in negative publicity, ridicule, and notoriety" and that such conduct constituted "just cause for termination." (2011 IHO Decision and Order 31-32.) The 3020-a hearing commenced before Plaintiff's criminal charges were adjudicated in criminal court but concluded after they were dismissed. (Second Am. Compl. ¶ 49.) The IHO found that "the fact that the charges against [DePrima] were dismissed does not mean that the conduct did not occur." ( Id. ¶ 52.)

Plaintiff filed a petition pursuant to Article 75 of the New York Civil Practice Law and Rules seeking to vacate, modify or set aside the 2011 IHO Decision and Order in the County of Richmond Supreme Court of New York. ( See Mar. 21, 2012 Decision and Order ("Article 75 Decision"), annexed to the Decl. of Benjamin Welikson as Ex. 3.) In her Article 75 petition Plaintiff argued that the 2011 IHO Decision and Order violated her due process right by the IHO's use of information specifically prohibited by NYSHRL § 296(16) and New York Criminal Procedure Law ("NYCPL") § 160.50. (Pl. Article 75 Opp'n Mot., Part II at 2-6.) Plaintiff also argued that the IHO violated Plaintiff's equal protection rights in that the IHO denied Plaintiff the benefits of NYSHRL § 296(16) and NYCPL § 160.50, violating state law and thereby "giving rise to the constitutional violations." ( Id. at 6.) Furthermore, Plaintiff argued that the IHO's "actions were not a mistake and she exceeded and abused her power and her decision to terminate petitioner's employment [was] irrational." ( Id. at 7-8.) Plaintiff's Article 75 petition was denied. ( Id. at 3.) The Honorable Philip G. Minardo of the Supreme Court of the State of New York held that there was "no rational basis to overturn the determinations made by the arbitrator with regard to the credibility of the witnesses" and, therefore, Plaintiff had "failed to demonstrate that the [IHO]'s decision was not supported by the evidence and/or that it was arbitrary and capricious." (Article 75 Decision 3.)

Plaintiff filed an administrative complaint with the New York State Division of Human Rights, dated as received on February 15, 2012. (Pl. Admin. Compl., annexed to the Decl. of Benjamin Welikson as Ex. 4.) On May 17, 2012, the administrative complaint was dismissed. ( See New York State Division of Human Rights Determination and Order, annexed to the Decl. of Benjamin Welikson as Ex. 5.)

II. Discussion

a. Standard of Review

A district court reviewing a magistrate judge's recommended ruling "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and recommendation, the district court reviews the parts of the report and recommendation to which the party objected under a de novo standard of review. 28 U.S.C. § 636(b)(1)(C); see also Larocco v. Jackson, No. 10-CV-1651, 2010 WL 5068006, at *2 (E.D.N.Y. Dec. 6, 2010). The district court may adopt those portions of the recommended ruling to which no timely objections have been made, provided no clear error is apparent from the face of the record. 28 U.S.C. § 636(b)(1)(C); see also Larocco, 2010 WL 5068006, at *2. The clearly erroneous standard also applies when a party makes only conclusory or general objections, or simply reiterates its original arguments. See Rahman v. Fischer, No. 10-CV-1496, 2014 WL 688980, at *1 (N.D.N.Y. Feb. 20, 2014) ("If no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error." (citations omitted)); Time Square Foods Imports LLC v. Philbin, No. 12-CV-9101, 2014 WL 521242, at *2 (S.D.N.Y. Feb. 10, 2014) (clearly erroneous standard applies when party reiterates arguments made to the magistrate judge); Black v. Graham, No. 11-CV-1495, 2014 WL 496878, at *1 (S.D.N.Y. Feb. 4, 2014) (same); Fonseca v. Colvin, No. 12-CV-5527, 2014 WL 297488, at *2 (S.D.N.Y. Jan. 28, 2014) (same); Davis v. Campbell, No. 13-CV-0693, 2014 WL 234722, at *1 (N.D.N.Y. Jan. 22, 2014) (same); Ramos v. Superintendent, Sing Sing Corr. Facility, No. 11-CV-4929, 2014 WL 243148, at *1 (S.D.N.Y. Jan. 22, 2014) (same); Bravo v. Unger, No. 10-CV-5659, 2014 WL 201472, at *1 (S.D.N.Y. Jan. 16, 2014) (same); Best v. City of New York, No. 12-CV-7874, 2014 WL 163899, at *3 (S.D.N.Y. Jan. 15, 2014) (same); Vorcom Internet Servs., Inc. v. L&H Eng'g & Design LLC, No. 12-CV-2049, 2014 WL 116130, at *1 (S.D.N.Y. Jan. 13, 2014) (same); Ogunbayo v. City of New York, No. 12-CV-428, 2014 WL 60009, at *3 (E.D.N.Y. Jan. 7, 2014) (same); Jones v. Smith, No. 09-CV-6497, 2012 WL 1592190, at *1 (S.D.N.Y. May 7, 2012) (same) (collecting cases).

b. Plaintiff's Objections

i. Equal Protection

The Second Circuit has recognized equal protection "class of one" claims as well as "selective enforcement" claims. See Martine's Serv. Ctr., Inc. v. Town of Wallkill, ___ F.Appx. ___, ___, 2014 WL 321943, at *2 (2d Cir. Jan. 30, 2014) (identifying and stating the elements of the two equal protection claims). Judge Bloom understood Plaintiff to assert a class of one claim whereas the Plaintiff, ...


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