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Lebowitz v. New York City Department of Education

United States District Court, E.D. New York

March 31, 2017

THE NEW YORK CITY DEPARTMENT OF EDUCATION, JOHN O'MAHONEY, and LAURA IZZO individually and in their official capacities, Defendants.



         Plaintiffs Herman Lebowitz, Ekaterina Reznikov, and Keith Black (together, “Plaintiffs”) bring the instant consolidated actions against the New York City Department of Education (“DOE”), John O'Mahoney, and Laura Izzo (the “Individual Defendants”) (together, “Defendants”), alleging violations of Title VII of the Civil Rights Act of 1964, (“Title VII”), the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), the Family and Medical Leave Act (“FMLA”), the New York State Human Rights Law (“NYSHRL”), the New York City Human Rights Law (“NYCHRL”), and New York common law. Defendants move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the Third Amended Complaint (“Complaint”) in its entirety.


         Plaintiffs are former mathematics teachers at Sheepshead Bay High School (“SBHS”) in Brooklyn, New York. (Compl. ¶¶ 13, 52, 99.) SBHS closed at the end of the 2015-2016 school year. (Id. ¶ 49.) During the relevant time period, O'Mahoney was the principal of SBHS, and Izzo was the assistant principal for special education. (Id. ¶¶ 10-11.)

         Shortly after O'Mahoney became principal of SBHS in January 2012, he informed the school staff that the school was over budget by millions of dollars. (Id. ¶¶ 14, 16.) O'Mahoney often asked the older teachers, who typically earned higher salaries than younger, less senior teachers, when they were going to retire. (Id. ¶ 16.) In addition, he threatened to discharge them if they did not retire. (Id.) In or about May 2012, O'Mahoney made all of the teachers at SBHS reapply for their jobs. (Id. ¶ 17.) He then hired back the vast majority of younger teachers. (Id.) Most, if not all, of the teachers that were not rehired, including Lebowitz, were over forty years old. (Id.)

         In response, Plaintiffs' union filed a grievance on the basis that O'Mahoney violated the collective bargaining agreement's seniority provisions by not rehiring the older teachers. (Id. ¶ 18.) In June 2012, an arbitrator ruled in the union's favor, and Lebowitz and the other discharged teachers were reinstated to their positions. (See Id. ¶¶ 18, 105.) O'Mahoney then decided not to discharge any teachers, because under the collective bargaining agreement's seniority provisions, O'Mahoney would have been required to discharge the younger teachers first. (Id.) O'Mahoney made it known that he wanted all of the math teachers-all of whom were over forty years old-to receive a rating of “unsatisfactory” regardless of their performance. (Id. at ¶ 20.) Plaintiffs also allege that O'Mahoney subjected older teachers to “unfounded discipline, baseless ratings, and harassment, and strong-arm[ed] them into retirement, while consistently replacing them with younger teachers.” (Id. ¶ 28.) In addition, O'Mahoney allegedly tampered with the process for administering diagnostic academic tests so that the older teachers could not rely on student test scores to show how they improved their students' performances during the year. (Id. ¶ 107.)

         Plaintiffs allege that Izzo also demonstrated a pattern and practice of discrimination towards teachers over forty years old. (Id. ¶ 55.) Izzo socialized with the younger teachers, and she excluded teachers over forty years old by saying things like “this conversation is not for oldies.” (Id. ¶¶ 55-56.) Izzo told several younger teachers that, in order to keep their tenure, they needed to “be mean to the senior staff.” (Id. ¶ 66.) In or around October 2012, Izzo told the younger teachers that they would keep their jobs because, by the time SBHS shut down, no older teachers would be left. (Id. ¶ 56.) During a staff meeting in December 2013, Izzo stated that she would “take care of” the younger teachers. (Id. ¶ 23.) Izzo made sure that all the younger teachers had keys to her room, which had a Xerox machine and other supplies, but denied the senior teachers access to these resources. (Id.) Izzo gave the younger teachers more time and advance notice to prepare for observations than senior teachers. (Id. ¶¶ 27, 76.) The younger teachers also received “do-overs” of their observations, such that less successful observations did not impact their performance evaluations. (Id. ¶ 26.) These opportunities were not afforded to the older and more senior teachers. (Id. ¶ 26.)

         I. Allegations Specific to Plaintiff Lebowitz

         Plaintiff Lebowitz is fifty-nine years old and began his employment with Defendant DOE in September 1990. (Id. ¶ 12-13.) He began working at SBHS in September 2000. (Id. ¶ 13.) Historically, Lebowitz had received satisfactory annual reviews. (Id. ¶ 14.) After O'Mahoney became principal of SBHS, Lebowitz received negative feedback and poor performance evaluations following classroom observations. (See Id. ¶¶ 22, 26, 29, 30, 37-39, 44, 48.) On several occasions, O'Mahoney allegedly influenced Izzo to change a positive evaluation of Lebowitz to a negative one without any basis for doing so or simply changed the ratings himself. (See Id. ¶¶ 39, 42.) Plaintiffs allege that similarly situated teachers under the age of forty or who did not complain about discrimination did not receive baseless poor evaluations. (Id. ¶ 22.)

         In December 2013, Izzo held a staff meeting during which one younger teacher pointed at the older teachers in the room and said, “You guys are going to get it.” (Id. ¶ 23.) At that time, two other teachers repeated an ongoing joke about Lebowitz in which one teacher said, “I have great news, ” and the other teacher, posing as Lebowitz, stated, “I still have a job.” (Id.) On several occasions, O'Mahoney told Lebowitz that the last years of a teacher's career were the “f**k you years” and “f**k you money.” (Id. ¶¶ 21, 40.) During one such interaction, O'Mahoney told Lebowitz that the union made it “almost impossible” to get rid of senior teachers, and that doing so would “take years.” (Id. ¶ 40.)

         On May 21, 2014, Lebowitz applied and was hired for an integrated co-teaching (“ICT”) position for the upcoming school year. (Id. ¶ 31.) On September 2, 2014, Lebowitz discovered that the position had been reassigned to Dr. Lisa Clark, which violated the collective bargaining agreement's seniority provisions. (Id. ¶ 32.) When O'Mahoney and Izzo refused to give the position back to Lebowitz, Lebowitz filed and won a grievance against O'Mahoney and was allowed to proceed with the ICT position. (Id.)

         At the beginning of the 2014-2015 school year, O'Mahoney sent out an email to the entire staff listing the teachers who were rated as “developing” or “ineffective” and therefore warranted a Teacher Improvement Plan (“TIP”). (Id. ¶¶ 33-34.) This information was supposed to be held confidential. (Id. ¶ 34.) Only older and more senior teachers, including Lebowitz, were listed. (Id. ¶ 33.) Lebowitz was humiliated by the sharing of this information and experienced ridicule from younger teachers. (Id. ¶ 34.)

         On September 12, 2014, Lebowitz applied for the position of cafeteria supervisor. (Id. ¶ 35.) Per union rules, the position was meant for only one teacher, and preference was to be given in order of seniority. (Id.) O'Mahoney divided the position in two between Lebowitz and another, less senior teacher. (Id.) Lebowitz filed and won a grievance and became the sole cafeteria supervisor. (Id.) In March 2015, O'Mahoney assigned Lebowitz to teach an additional geometry class. (Id. ¶ 41.) This additional class resulted in Lebowitz teaching four classes, each in a different area of mathematics, in violation of the collective bargaining agreement. (Id.)

         Plaintiffs allege that, because of the “baseless negative ratings” Lebowitz received, he was prevented from applying to additional positions within the DOE, including after-school jobs, tutoring, or college teaching. (Id. ¶ 49.) Plaintiffs also contend that, given the closing of SBHS, Lebowitz's negative ratings will impede his ability to find another job and will result in him remaining on absent teacher reserve (“ATR”).[2] (Id.)

         II. Allegations as to Plaintiff Reznikov

         Plaintiff Ekaterina Reznikov is fifty-seven years old and is of Russian descent. (Id. ¶¶ 51-52.) She began teaching mathematics at SBHS in 1999. (Id. ¶ 52.) In her years at SBHS, Reznikov historically received “glowing reviews” from her principals. (Id. ¶ 53.)

         In October 2013, Reznikov took four days off to seek treatment for a condition that was suspected to be cancer. (Id.¶ 60.) On November 14, 2013, Izzo informed Reznikov that, at O'Mahoney's directive, Reznikov would receive a disciplinary letter for those absences. (Id. ¶ 63.) When Reznikov began to cry, Izzo stated that she would not issue the disciplinary letter, but Reznikov later found that letter in her file. (Id.) On May 14, 2014, Reznikov needed to leave work early for a biopsy, which conflicted with a scheduled meeting with Izzo. (Id. ¶ 79.) Izzo informed Reznikov, “These meetings are important, please schedule to be sick in the summer. You remind me of my mother, she had cancer, but she never died.” (Id.) Izzo instructed Reznikov to find out for herself what happened at the meeting because Izzo would not repeat herself. (Id.) Reznikov felt harassed and cried. (Id.) On May 23, 2014, Izzo told Reznikov that she would rate Reznikov as ineffective because she “need[ed] to leave the system.” (Id. ¶ 83.) When Reznikov responded that she needed her medical benefits for her cancer, Izzo responded, “Oh, die already!” (Id.)

         Plaintiffs contend that Defendants continued to interfere with Reznikov's medical needs by not allowing her to use the bathroom. (Id. ¶¶ 87-90.) On June 17, 2014, during the Regents exams, Reznikov was assigned to proctor an exam and sit in the library for most of the day. (Id. ¶¶ 86-87.) When Reznikov asked Izzo if she would be able to break for lunch or to use the bathroom, Izzo replied, “I don't believe you need any of those things.” (Id. ¶ 88.) After being further admonished by Izzo, Reznikov felt so bullied that she could not walk home, and she suffered from abdominal pain because she was not given bathroom breaks. (Id. ¶ 89.) On June 20, 2014, Reznikov asked another teacher to relieve her so she could take a bathroom break. (Id. ¶ 90.) The teacher refused, stating that he did not want to get in trouble with Izzo. (Id.) Plaintiffs allege that Reznikov was shaking so badly from not taking bathroom breaks that doctors could not perform a procedure on her later that day. (Id. ¶ 91.)

         Plaintiffs also allege that Defendants made repeated remarks about Reznikov's Russian accent. In February 2014, O'Mahoney and other school administrators asked Reznikov's students questions like, “Do you understand her?” and “Does her accent seem unpleasant to you?” (Id. ¶ 67.) On March 13, 2014, while discussing students who spoke English as a second language, assistant principal Mario Ford stated, “We can improve the kids, but we can't improve the teachers, although we don't want them, there is nothing we can do about it.” (Id. ¶ 73.) Plaintiffs allege that it was clear to Reznikov that Ford was referring to her. (Id.)

         An evaluation dated February 25, 2014, criticized Reznikov for not using her computer or smart board during a lesson, despite the fact that her classroom was not equipped with that technology. (Id. ¶ 65.) At a post-observation conference on March 4, 2014, O'Mahoney leaned over his desk and told Reznikov, “You are the worst teacher in this school. I want you to leave this school and leave this profession. You are a disgrace.” (Id. ¶ 70.) When Reznikov responded that her students were passing their exams, O'Mahoney yelled that she should not talk when he was talking. (Id.) Reznikov was so upset that she could barely walk, and Lebowitz had to help her walk back to her classroom. (Id.) The next day, O'Mahoney gave Reznikov a rating of “ineffective” for his observation of her, which Plaintiffs contend was baseless. (Id. ¶ 71.) In April 2014, the state conducted observations of SBHS. (Id. ¶ 78.) The administration assured the teachers that they would not be subject to simultaneous internal observations by school leadership while the state observations were in progress. (Id.) Izzo observed Reznikov anyway. (Id.) When Reznikov asked Izzo why she had conducted the observation at that time, Izzo responded, “I did that because I want all the senior teachers out of here.” (Id.) In June 2014, Izzo rated Reznikov as “ineffective, ” without having any basis for doing so. (Id. ¶ 85.)

         On June 26, 2014, which Plaintiffs allege was Reznikov's last day at SBHS, Izzo invited Reznikov and her union representative to Izzo's office. (Id. ¶ 93.) Izzo informed Reznikov that she would receive a disciplinary letter for taking an hour for lunch instead of the allotted forty-two minutes. (Id.) When Reznikov stated that the accusation was untrue, Izzo replied, “Fact or no fact, you are going to be rated ineffective, you are going to lose your license.” (Id.) Reznikov remarked, “You just don't want me to be alive, ” to which Izzo responded, “Exactly.” (Id.) Later that day, when Reznikov received a copy of her file, she noticed that all of her letters of commendation were missing. (Id. ¶ 94.) Reznikov received an overall ineffective rating for the 2013-2014 school year at SBHS and was placed on ATR. (Id. ¶ 95.) During the 2014-2015 school year, Reznikov taught at Franklin Delano Roosevelt high school and received a rating of “highly effective.” (Id.) In June 2015, Reznikov was returned to ATR. (Id.)

         III. Allegations as to Plaintiff Black

         Plaintiff Keith Black is a forty-eight-year-old male who has taught mathematics at SBHS since 1999. (Id. ¶¶ 98-99.) In 2012, Black requested FMLA leave to care for his ailing mother. (Id. ¶ 103.) Defendants approved Black's request for leave from February 13, 2012, through June 30, 2012. (Id.) Black returned for the fall 2012 semester. (Id. ¶ 108.) On December 5, 2012, Black received a review of “satisfactory” following a formal observation. (Id. ¶ 110.) On January 3, 2013, Black received a negative evaluation, which Plaintiffs contend was baseless. (Id. ¶ 111.) As a result, Black began to suffer from severe anxiety and panic attacks, which required him to stay out of school for three weeks, using his accrued sick days. (Id. ¶¶ 112-13.) On March 20, 2013, Black received correspondence from O'Mahoney stating that Black must either provide O'Mahoney with medical documentation, return to work immediately, or resign. (Id. ¶ 115.) Plaintiffs allege that, after Black returned to work from this period of sick leave, O'Mahoney “consistently harassed Black and disciplined or attempted to discipline Black for falsified and baseless reasons.” (Id. ¶ 120.) Plaintiffs allege that in May 2013, O'Mahoney told another teacher that he would “get Black the following year” because Black “[knew] how to beat the system.” (Id. ¶ 125.) The next year, O'Mahoney gave Black ten ineffective ratings. (Id. ¶ 131.) Similarly, Izzo gave Black poor ratings, which Plaintiffs contend “had no basis in fact and could not be supported.” (Id. ¶ 139.)

         Plaintiffs allege that O'Mahoney went out of his way to humiliate Black, and that “[s]imilarly situated younger teachers and those teachers who did not take FMLA leave were not humiliated.” (Id. ¶ 133.) Plaintiffs allege that “O'Mahoney's plan to mentally and emotionally break the senior teachers was taking its toll on Black” and that Black was ultimately diagnosed with Post-Traumatic Stress Disorder (“PTSD”). (Id. ¶ 136.) Black and numerous other staff members were “subjected to looks of disdain and disgust from O'Mahoney, who did not show this contempt to similarly situated younger teachers and staff.” (Id. ¶ 141.) In the spring of 2014, Black made several requests to be transferred out of SBHS. (Id. ¶ 145.) Those requests were denied. (Id.) In June 2014, Black was “excessed” out of SBHS, but then was sent back to teach at SBHS for the 2014-2015 school year. (Id. ¶¶ 146, 150.) Black took medical leave beginning in February 2015 to address his anxiety and PTSD. (Id. ¶¶ 150-51.) On May 4, 2015, O'Mahoney allegedly sent an investigator to Black's house to confirm that he was, indeed, ill and not engaging in outside work. (Id. ¶ 155.) The investigation was later dropped. (Id.) Ultimately, in June 2015, Black was informed that he would be excessed from SBHS for the 2015-2016 school year. (Id. ¶ 156.)


         To withstand 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, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the alleged facts allow the court to draw a “reasonable inference” of a defendant's liability for the alleged misconduct. Id. Although this standard requires more than a “sheer possibility” of defendant's liability, id., “[i]t is not the Court's function to weigh the evidence that might be presented at trial” on a motion to dismiss. Morris v. Northrop Grumman Corp., 37 F.Supp.2d 556, 565 (E.D.N.Y. 1999). Instead, “the court must merely determine whether the complaint itself is legally sufficient, and, in doing so, it is well settled that the court must accept the factual allegations of the complaint as true.” Id. (internal citation omitted).


         I. Plaintiffs' Age ...

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