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Dimitracopoulos v. City of New York

United States District Court, E.D. New York

June 4, 2014

Madelyn Dimitracopoulos, Plaintiff,
THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION, CARL HUDSON, former principal of Flushing High School; MAGDALEN RADOVICH, former principal of Flushing High School; GISELE MORGAN, assistant principal of English of Flushing High School, DR. JAMES BROWN, current principal of Flushing High School, Defendants

Decided: June 2, 2014.

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[Copyrighted Material Omitted]

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For Plaintiff: Bryan D. Glass, Glass Krakower LLP, New York, NY.

For Defendants: Jay Y. Kim, New York City Law Department, New York, NY.

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Jack B. Weinstein, Senior United States District Judge.

I. Introduction

II. Setting of Controversy

III. Facts

A. 2009 Litigation

B. 2011-2012 School Year

C. 2012-2013 School Year

D. 2013-2014 School Year

E. Co-Teaching

IV. Standard of Review

V. Claims Against the City Dismissed

VI. Statute of Limitations

A. Statutes of Limitations


2. Section 1983


4. Continuing Violations Doctrine

B. Plaintiff's Claims Are Partially Time Barred

VII. Federal Age Discrimination Claims

A. Law

B. Application of Law to Facts

1. Limited Adverse Employment Action Adequately Alleged

2. Inference of Discrimination

VIII. State Age Discrimination Claims

IX. City Age Discrimination Claims

X. Retaliation Claims

A. Law

B. Application of Law to Facts

XI. Surviving Claims

XII. Pretrial and Trial Instructions

I. Introduction

Plaintiff Madelyn Dimitracopoulos brings employment discrimination claims for discrimination on the basis of age against the City of New York, New York City Department of Education (" DOE" ), Carl Hudson, Magdalen Radovich, Gisele Morgan, and James Brown. See Age Discrimination in Employment Act of 1967 (" ADEA" ), 29 U.S.C. § 621 et seq.; U.S. Const. Am. XIV, 42 U.S.C. § 1983; New York State Human Rights Law (" NYSHRL" ), New York Executive Law § 290 et seq.; New York City Human Rights Law (" NYCHRL" ), New York City Administrative Code 8-101 et seq.

To avoid excessive denial of jury trials on the basis of pleading inadequacies and

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summary judgments, the court followed its current practice in discrimination cases: plaintiff and a knowledgeable representative of defendants appear for questioning by the judge on argument of motions to dismiss on the pleading or summary judgment. A " mini-trial" is conducted by the court relying on " judicial experience and common sense" as required by In re Amaranth Natural Gas Commodities Litig., 730 F.3d 170, 180 (2d Cir. 2013). Here the conclusion of the court was that a jury might justifiably accept plaintiff's story of discrimination based on her age.

Defendants' motion to dismiss the complaint for failure to state a claim is granted in part and denied in part. See Fed.R.Civ.P. 12(b)(6). The case is set down for trial on November 17, 2014 at 10:00 a.m. on limited issues. After prompt discovery limited by the magistrate judge defendants may move for full or partial summary judgment. See infra Part XII.

II. Setting of Controversy

The controversy illuminates one of the current crises being played out in schools. In this case it takes the form of a legal claim of discrimination against a teacher based on her age. Sitting across a table in the well of the courtroom were two antagonists in the proceeding--plaintiff and a named defendant, Gisele Morgan. Plaintiff is a woman of 72, occidental, fiercely proud of her 52 years of dedicated teaching, who has chosen to try to help economically disadvantaged students in a minority-dominated high school. Defendant is an African American assistant principal at the top of her administrative skills passionately trying to provide a superior education in a school viewed by many as failing; she insists on teachers using currently approved " modem" pedagogical methods, applying present views of appropriate teacher supervision. During the hearing, the following statements were made with deep feeling by these parties:

Plaintiff [Madelyn Dimitracopoulos, English Teacher]:
I would like to continue on as long as I am physically fit and mentally fit. I didn't want to take the buy-out. They said if I leave by June 30th we get all the retroactive pay. But I don't think I want to be lured by money because I love my job and I love my students. . . .
Well, I really didn't want to speak about the money issue, but everybody -- it's clear that I make a top salary with two Masters. . . . And so I do follow all of their directives, all the new rubrics, all the new terminology, and I get no credit for what I'm doing while accolades are heaped on the younger teachers who quite often take their lesson plans from the Internet, but I make my lesson up every day.
I really don't know. I think it's policy because my peers in the schools that are over 55 and 60 are going around crying and taking blood pressure pills because they're experiencing similar ineffective ratings and things that go to the heart of who you are as a person, what you've been doing all your life.
For 52 years I've never been told that I am physically unfit. While I respect Ms. Morgan because she's always spoken with me in a respectful way, to be able to write on a paper that I show favoritism or I'm culturally unaware of my students' background. I have a totally culturally diverse family. I selected Flushing High School because of its diversity.
To be told in writing that I don't know grammar, syntax, and academic vocabulary, strikes at the core of who I am and what I've been doing at Flushing for 52 years. And the students that come back

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to me and thank me, to let me know how successful they are, it doesn't make sense. And it's very hurtful. Hr'g Tr. 32:18-34:11
Defendant [Gisele Morgan, Assistant Principal of English of Flushing]:
What I observed are unsatisfactory practices in the classroom. . . . For example, in reference to what Ms. Dimitracopoulos stated about showing favoritism, that language is taken directly from a teaching rubric that supervisors use. In that instance, she had disciplined certain students and avoids disciplining other students.
So what I observed in my snapshots in the classroom, especially with classroom management and instruction, it's not coherent in her style. I have also noted she is knowledgeable, but inside the classroom there's instructional issues. . . . According to how she lays out her plan, with time management, with time constraint, teaching to a diverse group of students who have [other] disability issues [as well as] . . . . learning disabilities. We are inclusive classroom, inclusive structure. We have general education students. Students of second languages. As well as students with disabilities. And there are issues . . . [plaintiff's] teaching style to attend to those students. . . .
For example, when you are teaching literature to a diverse group of students, you need to have multiple entry points for each student. So a student who is speaking another language, you have to have different manipulatives for that student. As well as the student who had a learning disability, you have to have certain manipulatives. And Ms. Dimitracopoulos teaches to the whole class one method.
Hr'g Tr. 34:15-35:24.
I just want to take exception to the point that Ms. Morgan made about my not being sensitive to the learning issues that my students have. I have been assigned these special inclusion co-teaching classes for three years consecutively. . . . But if I were insensitive, why would I be assigned one year after another? I'm very sensitive to that issue.
Also, YABC [a student assistance program from which I was for a time excluded] is not an after school program. It's an accredited academic program where students that are on the verge of dropping out come back to school and, with my help and the help of the YABC program . . . they are able to graduate when they do the work. I've gotten all S's for eight years straight. I've been there since its inception.
In terms of those three [unsatisfactory ratings], the first two by Mr. Hudson who had to resign from the system . . . . With Ms. Radovich, the U has not been challenged yet because there's a waiver. Because I'm challenging a write-up that Ms. Morgan gave me and we're going to step two with the union.
And this year, I'm trying very hard to get a satisfactory. . . . So I'm hoping we can resolve this matter. And as I say, we're all trying to be very fair, but I do wish to continue my career at Flushing, as I have for the past 52 years, because I'm doing my best to assimilate everything that's being given to me and go to all these . . . meetings and listen to Ms. Morgan's suggestions how to improve my teaching. I hope to go on and not have to stop.
Hr'g Tr. 40:5-41:12
Your Honor, it's my position to support teachers when they receive unsatisfactory ratings. For the past two years,

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three years, we've been working with Ms. Dimitracopoulos, with myself, the help of lead teachers.
We made appointments during her availability at the end of the day to work one-on-one with coaches because we're in an effort to support her in the classroom. Support her with technology issues. Support her in the manner of any issue that she needs. To support her and accommodate her . . . classroom requests.
Ms. Dimitracopoulos is one of the only teachers that teaches all five classes in one classroom. Other teachers teach and they move. Ms. Dimitracopoulos approaches me that she cannot carry or lift heavy test papers. I have [someone] assist her. And [I] accommodate her in every possibility of support because it is our position that if a teacher needs to learn new teaching methods, we're to [give] support. I've done that specifically this year and last year.
So I'd like to just state that it's not a position where we don't want Ms. Dimitracopoulos to receive all that she can. We've been working closely with her in these situations.

III. Facts

The following facts taken from the amended complaint are assumed to be true for the purposes of deciding this motion. See Am. Compl., ECF No. 16.

Plaintiff has been a high school teacher at the DOE's Flushing High School (" Flushing" ) since 1962. Id. ¶ 12, 22. At age 73, she is the oldest, highest paid and most senior member of the English department. Id. ¶ 11, 23.

A. 2009 Litigation

In 2009 plaintiff filed a federal lawsuit against the DOE based on age discrimination and retaliation. See Dimitracopulos v. City of New York, et al., 09-CV-01415, filed Apr. 6, 2009. It was settled in ...

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