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United States v. New York City Department of Education

United States District Court, S.D. New York

March 28, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant. ANTHONY RICCARDO, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, MINERVA ZANCA, Principal of the Pan American International High School, JUAN S. MENDEZ, Superintendent of Queens High Schools, Defendants.

          MEMORANDUM AND ORDER

          JAMES C. FRANCIS IV, UNITED STATES MAGISTRATE JUDGE

         The plaintiff, Anthony Riccardo, brings this action against the New York City Department of Education (the "DOE"), Minerva Zanca, and Juan Mendez pursuant to 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. (the "NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (the “NYCHRL”).[1] By Order dated January 4, 2017, the Honorable Lewis A. Kaplan, U.S.D.J., dismissed the plaintiff's NYSHRL and NYCHRL claims against the DOE and Mr. Mendez because the plaintiff failed to plead that he filed a notice of claim pursuant to New York Education Law § 3813(1). United States v. New York City Department of Education, Nos. 16 Civ. 4291, 16 Civ. 4891, 2017 WL 57854, at *1 (S.D.N.Y. Jan. 4, 2017) (hereinafter Riccardo I). The plaintiff moves for leave to amend his complaint to allege facts showing that he satisfied the notice of claim requirement. For the reasons discussed below, the motion is denied.

         Background

         This case involves allegations that Ms. Zanca, the principal of Pan American International High School (“PAIHS”), discriminated and retaliated against Mr. Riccardo because he refused to assist her in discriminating against the school's African-American teachers. The facts underlying the plaintiff's claims are set forth in my Report and Recommendation on the defendants' motion to dismiss the original complaint. See Riccardo v. New York City Department of Education, No. 16 Civ. 4891, 2016 WL 7106048, at *1-2 (S.D.N.Y. Dec. 2, 2016).

         Mr. Riccardo was the assistant principal of PAIHS during the 2012-13 school year. (Proposed First Amended Complaint (“Proposed FAC”), attached as Exh. 1 to Declaration of Noah A. Kinigstein dated Jan. 25, 2017, ¶¶ 16, 39). Mr. Mendez was the Superintendent of Queens County High Schools. (Proposed FAC, ¶ 8). In February 2013, Mr. Riccardo informed Ms. Zanca that he would no longer comply with her discriminatory conduct. (Proposed FAC, ¶ 33). She responded by “writing him up” with the intention of giving him an unsatisfactory (“U”) rating for the school year. (Proposed FAC, ¶ 33). In April 2013, after Mr. Riccardo gave Heather Hightower, one of the school's African-American teachers, a satisfactory (“S”) rating for one of her lessons, Ms. Zanca “had [Mr.] Riccardo forcibly removed from the school building by school security.” (Proposed FAC, ¶ 35). In late June 2013, Ms. Zanca gave Mr. Riccardo a “U” rating for the 2012-13 school year, which terminated his probationary status as assistant principal. (Proposed FAC, ¶ 39). In September 2013, the plaintiff entered into a “stipulation” with the defendants (Proposed FAC, ¶ 52), though the terms of the stipulation are not set forth in the proposed amended complaint.

         On June 26, 2013, Mr. Riccardo filed a complaint with the DOE's Office of Equal Opportunity (“OEO”). (Proposed FAC, ¶ 36). On July 23, 2013, he was interviewed by Theresa B. Wade, an OEO attorney, about Ms. Zanca's conduct. (Proposed FAC, ¶¶ 44-45). In early August 2013, Mr. Riccardo discussed Ms. Zanca's conduct with Mr. Mendez. (Proposed FAC, ¶ 48). The DOE did not investigate Mr. Riccardo's allegations further. (Proposed FAC, ¶¶ 49-50). On September 20, 2013, Mr. Riccardo filed a complaint with the United States Equal Employment Opportunity Commission (“EEOC”). (Proposed FAC, ¶ 51).

         Discussion

         A. Legal Standard

         Rule 15 of the Federal Rules of Civil Procedure provides that courts should “freely give” leave to amend “when justice so requires.” Fed.R.Civ.P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182 (1962); Aetna Casualty & Surety Co. v. Aniero Concrete Co., 404 F.3d 566, 603 (2d Cir. 2005). “This permissive standard is consistent with [the Second Circuit's] ‘strong preference for resolving disputes on the merits.'” Williams v. Citigroup Inc., 659 F.3d 208, 212-13 (2d Cir. 2011) (quoting New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005)). The court has broad discretion over motions to amend, see McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007), and may deny such a motion for the following reasons: (1) undue prejudice to the non-moving party, (2) futility, (3) bad faith or dilatory motive, (4) repeated failure to cure deficiencies by previous amendments, or (5) undue delay, United States ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 28 (2d Cir. 2016).

         Here, the defendants argue solely that the plaintiff's amendment is futile. Leave to amend should be denied as futile when the amended pleading would not survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. IBEW Local Union No. 58 Pension Trust Fund and Annuity Fund v. Royal Bank of Scotland Group, PLC, 783 F.3d 383, 389 (2d Cir. 2015). Thus, the appropriate legal standard is whether the amended pleading states a claim on which relief can be granted. See Panther Partners Inc. v. Ikanos Communications, Inc., 681 F.3d 114, 119 (2d Cir. 2012). The court should accept all facts pled as true and construe them in the light most favorable to the plaintiff to determine whether the allegations give rise to a plausible claim for relief. Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-80 (2009)). The defendants bear the burden of demonstrating that the proposed amendment is futile. See Allison v. Clos-ette Too, LLC, No. 14 Civ. 1618, 2015 WL 136102, at *2 (S.D.N.Y. Jan. 9, 2015); Ferring B.V. v. Allergan, Inc., 4 F.Supp.3d 612, 618 (S.D.N.Y. 2014).

         B. Analysis

         New York Education Law § 3813(1) provides that no claim involving the rights or interests of a school district may be brought against the district or its officers

unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim.

Thus, in order to bring a claim against the DOE or its officers[2] under the NYSHRL or NYCHRL, a plaintiff must serve a written notice of claim on the governing board of the DOE within three months of the claim arising. See Bacchus v. New York City ...


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