United States District Court, E.D. New York
MEMORANDUM & ORDER
GLASSER, Senior United States District Judge
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.
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.
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.
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.
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. ¶
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.
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.
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.
Claims Pursuant ...