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Weinstein v. New York City Department of Education

United States District Court, E.D. New York

May 26, 2017

NEW YORK CITY DEPARTMENT OF EDUCATION, and DAVID MARMOR, in his Official and Individual capacity, and PATRICK DUNPHY, in his Official and Individual capacity, Defendants.


          GLASSER, Senior United States District Judge

         Plaintiff Eric Weinstein (“Weinstein” or “Plaintiff”) brings this action against the New York City Department of Education (“DOE”), and individual Defendants David Marmor (“Marmor”) and Patrick Dunphy (“Dunphy”). Plaintiff alleges he was unlawfully discriminated against on the basis of age and disability, and subjected to a hostile work environment. He alleges violations of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621, et seq., the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., the Fourteenth Amendment to the U.S. Constitution, 42 U.S.C. § 1983, 42 U.S.C. § 1981, the New York State Executive Law (“SHRL”) and the New York City Human Rights Law (“CHRL”), and common law claims for negligent hiring and supervision. Before the Court is Defendants' motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated herein, the motion is GRANTED.


         The following facts are drawn from the Amended Complaint, ECF 12 (“Am. Compl.”) unless otherwise noted, and are assumed to be true for purposes of this motion. Plaintiff Weinstein is a former teacher with the New York City Department of Education. He was fifty-three years old and had over twenty-four years of experience with the DOE at the time this action was commenced. Id. ¶¶ 1, 2, 16. Specifically, he spent nineteen years assigned to Francis Lewis High School in Fresh Meadows, Queens. Id. ¶ 16. During his tenure, Plaintiff received “predominately positive performance evaluations and numerous accolades.” ¶ 2. In or around 2004, Plaintiff was diagnosed with a heart condition known as Atrial Fibrillation or “A-Fib.” ¶ 15. Due to this condition, he underwent cardiac ablation surgery in November 2010 for which he took time away from work. Id. ¶ 20, 21.

         In or around 2013, Defendant Marmor-who is “in his forties”-was hired as Principal of Francis Lewis High School, where Plaintiff was teaching. Id. ¶¶ 18, 23. Defendant Dunphy- who is approximately thirty-two years old-was appointed Assistant Principal of Social Studies that same year. Id. ¶¶ 18, 24. Both Marmor and Dunphy supervised Weinstein, and both were aware of his A-Fib diagnosis. Id. ¶¶ 17-19, 20-22. Also in 2013, the DOE adopted the “Danielson Rubric” for evaluating teacher performance on a scale of Highly Effective, Effective, Developing, or Ineffective. Id. ¶ 24; ECF 15 at p. 3 n. 2. As part of his regular evaluation, Dunphy observed Weinstein teaching a lesson in October 2013. Id. ¶ 26. During this lesson, Weinstein “utilized the same teaching techniques that the New York State ‘teacher of the year' had used prior.” Id. ¶ 26. Dunphy rated Weinstein “Ineffective” for the lesson, explaining he was “not being cognizant of the ‘cultural heritage of [his] students.'” Id. ¶ 27. Plaintiff filed a rebuttal to this “Ineffective” rating with both Dunphy and Principal Marmor. Id. ¶ 28. Plaintiff alleges that Dunphy used the rebuttal as grounds to charge Plaintiff with “unprofessional conduct, ” and Principal Marmor “signed off” on the charges. Id. ¶¶ 29, 30. After the initial classroom observation, Dunphy and other administrators observed Plaintiff's classroom on several occasions throughout the school year. Id. ¶ 31. Plaintiff received an “Ineffective” rating in his final review for the 2013-2014 year. Id. ¶ 32.

         As a result of the “Ineffective” rating, Plaintiff was placed on a Teacher Improvement Plan (“TIP”) for the 2014-2015 academic year. Id. ¶ 33. Dunphy, who developed the TIP, did not receive input from Plaintiff on the plan, allegedly in contravention of a union contract not presently before the Court. Id. ¶ 34. Plaintiff characterized the TIP as “unnecessarily elaborate.” Id. In January 2015, Dunphy altered the TIP-again without Plaintiff's input-to require Plaintiff to meet directly with Dunphy once a week. Id. ¶ 35. Plaintiff requested to meet with someone other than Dunphy, as meeting with Dunphy exacerbated his A-Fib, and such meetings resulted in his having to leave the building to seek medical attention on several occasions. Id. ¶ 36. Plaintiff submits that Principal Marmor responded to this request by threatening Plaintiff with insubordination charges and stating “your doctor is not my boss.” Id. ¶ 37.

         Plaintiff alleges he was subjected to “heightened scrutiny” from his supervisors at Francis Lewis, including Marmor and Dunphy. Id. ¶ 47. During the 2014-2015 academic year, he was initially scheduled to teach in two classrooms located on separate floors and opposite sides of the building: Rooms 143 and 255A. Id. ¶¶ 38-39. Plaintiff submitted a request to have all of his classes scheduled to Room 143 instead. Id. ¶ 42. The following day, Dunphy informed Plaintiff that three of his classes would now be held in a third room, 344B. Plaintiff characterizes this room as “an unfit environment for teaching, ” “infested with cockroaches” and the “worst” in the school. Id. Plaintiff's performance reviews were largely conducted in this classroom. Id. ¶ 45. In addition, Plaintiff submits that Dunphy did not provide him with the necessary code for distribution of books to students at the outset of the school year. As a result, Plaintiff was inhibited from timely distributing the books. Following this delay, he was issued a “counseling memorandum” for negligence. Id. ¶ 50. Unrelatedly, Plaintiff also alleges he was assaulted by a student in December 2014, and Defendants did not discipline the student, who returned to Plaintiff's class. Id. ¶ 52.

         Over the course of these incidents, Plaintiff's A-fib condition continued to worsen. Id. ¶ 54. On or about March 4, 2015, he was “deemed unfit to teach” and “prescribed two months of medical leave.” Id. ¶ 55. During that two month leave, he underwent a second cardiac ablation surgery on April 28, 2015, and thereafter requested additional leave time for recovery. Id. Principal Marmor delayed over a week in responding to the request, and required Plaintiff to undergo a medical examination on May 22, 2015. Id. ¶ 56.

         Following the 2014-2015 academic year, Defendants initiated termination proceedings against Plaintiff pursuant to N.Y. Educ. Law § 3020a. Hearing officer James Conlon found that the DOE proved by a “preponderance of credible evidence that [Weinstein] has been given the opportunity to improve his teaching performance and that [he] has been unable and/or unwilling to do so.” Id. ¶¶ 57, 58; ECF 14 Exh. 2 at p. 66. As Conlon concluded, terminating Plaintiff from his position, “[t]he Department has just cause to discipline Respondent Eric Weinstein.” ECF 14 Exh. 2 at p. 66. Plaintiff is currently appealing that decision. Id. Following his termination, Plaintiff filed this action alleging that Defendants “callously and viciously targeted [him] with the clear intent to terminate his employment based upon his age and disability.” Id. ¶ 19.


         A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy the rule, Plaintiffs must state a claim that is plausible on its face from which the Court can draw the reasonable inference that the claim has merit; “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.



         a. Claims Pursuant ...

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