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Verdi v. City of New York

United States District Court, S.D. New York

January 22, 2018

MANUELE VERDI, individually and in his official capacity as the Assistant Principal of Publi School 24 “P.S. 24”, a public school under the auspices of the NEW YORK CITY DEPARTMENT OF EDUCATION, Plaintiff,
THE CITY OF NEW YORK; THE NEW YORK CITY DEPARTMENT OF EDUCATION; CARMEN FARIÑA, both individually and in her official capacity as the Schools Chancellor within THE NEW YORK CITY DEPARTMENT OF EDUCATION; MELODIE MASHEL, both individually and within her official capacity as the Superintendent of Bronx School District 10, within the NEW YORK CITY DEPARTMENT OF EDUCATION; ELIZABETH ROSE, both individually and within her official capacity as the Deputy Schools Chancellor within the NEW YORK CITY DEPARTMENT OF EDUCATION; and STEVEN SCHWARTZ, both individually and within his official capacity as the Acting Principal of Public School 24, within the NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants.



         Plaintiff, an Assistant Principal at a New York City public school, brings a range of claims based on alleged retaliation he has endured for his opposition to discriminatory practices at his school. Defendants, which include the city's Department of Education (“DOE”), two DOE officials, and two fellow school administrators, move to dismiss the claims. For the reasons stated below, Defendants' motion is granted in part and denied in part. Plaintiff has sufficiently alleged state law claims under New York's human rights and civil service laws, has insufficiently alleged a § 1983 claim, and has abandoned his negligence claim. His Title VI claim is inadequately pled, but the Court will grant him leave to amend.

         I. BACKGROUND

         Plaintiff's allegations are laid out in a meandering 65-page complaint that asserts there is race discrimination in the placement of children into P.S. 24 in the Bronx. See First Amended Complaint (“FAC”) [Dkt. 26].[1] Although some of the allegations have the faint whiff of an Oliver Stone-style conspiracy, Plaintiff, who is an Assistant Principal at P.S. 24, has publicly complained that efforts have been and are being made to keep poor and minority children who live in the appropriate district out of P.S. 24, and his advocacy for those children has resulted in his getting crosswise with the school power structure. See, e.g., FAC ¶¶ 41-57 [18-24]. The primary players in this drama include the now-retired District 10 Superintendent (Defendant Mashel), the local Assemblyman (Jeffrey Dinowitz), the interim and now-permanent Principal of P.S. 24 (Defendant Schwartz), and the head of the school's Parents' Association (Laura Moukas). The Deputy Schools Chancellor (Defendant Rose) has a cameo appearance. Despite the length of the Complaint, when all is said and done, Plaintiff is complaining about three separate incidents of alleged retaliation.

         The first incident began with a Parents' Association (“P.A.”) meeting on October 21, 2015. During this meeting, Plaintiff and local Assemblyman Jeffrey Dinowitz exchanged angry words over the loss of the lease of the school's annex.[2] The loss of that space was problematic as it led to overcrowding in the school. Superintendent Mashel was present at the meeting and was aware that Verdi and Dinowitz had argued during the meeting. See FAC ¶¶ 27-32 [14-16].

         Plaintiff alleges that, on the following day, Mashel called P.S. 24's then-Principal Donna Connelly and directed her to reprimand Plaintiff for his conduct at the meeting. Connelly refused, and Mashel said, “This isn't over.” Connelly decided to retire shortly thereafter because, according to Plaintiff, she wished to avoid future confrontations with Mashel and other officials. FAC ¶¶ 33-34 [16]. After Mashel's call to Connelly, Mashel met with Dinowitz and others to discuss how to remove Plaintiff from P.S. 24, id. ¶¶ 35-36 [16-17], and, on December 11, 2015, Mashel told the Acting Principal, Andrea Feldman, that she had to find a way to remove Plaintiff if she wanted to remain as Principal. Id. ¶ 37 [17].

         The second incident involves P.S. 24's kindergarten registration. At a public meeting in January 2016, Dinowitz questioned the process that would be used to confirm addresses of P.S. 24 kindergarten enrollees. As a result of asserted concerns that out-of-district children would attempt to register-Verdi asserts that there was no real concern about out of district children and that the articulated concern was a cover for bias against minority and low-income students- Mashel, Feldman, and Rose agreed to allow Dinowitz's chief of staff Randi Martos to be present during the enrollment process. See FAC ¶¶ 41-44 [18-20]. When enrollment actually occurred, Martos and Laura Moukas, president of the P.A., were present to “oversee” kindergarten registration. During the process, they accessed confidential medical and academic records of the prospective enrollees and required parents of minority children to produce three identification documents to register their children, rather than the two that were required of other parents. See id. ¶ 52 [22]. Plaintiff wrote to the Schools Chancellor, Defendant Fariña, and DOE's Special Commissioner of Investigation regarding his concerns about the kindergarten enrollment process. Id. ¶¶ 46-47 [20-21], ¶¶ 49-50 [21-22], ¶ 52 [22]. His complaint to the Special Commissioner of Investigation led to an investigation that validated certain of his allegations.[3]See id. ¶¶ 82-92 [34-37].

         According to the Plaintiff, this second incident led to a meeting between Mashel and Plaintiff. The meeting was initially scheduled for April 6, 2016, but ultimately was held on May 4, 2016. See FAC ¶ 77 [24]. Plaintiff alleges that the meeting was called to discipline him for his opposition to the discriminatory enrollment scheme, but the memorandum that documents the meeting makes no mention of Plaintiff's opposition. See id. ¶¶ 76 [24], 81-83 [26-28]; Counseling Memorandum, May 23, 2016 [Dkt. 30-4].[4] Instead, the meeting focused on a directive that Mashel had given to Plaintiff to have no contact with Moukas's children, who attend P.S. 24, which the Complaint appears to confirm.[5] FAC ¶¶ 77-79 [24-26]. According to the Plaintiff, during this meeting Mashel ordered him to refrain from entering the P.S. 24 annex (the location in which he had encountered the Moukas children). Plaintiff alleges that this directive prevented him from performing his job. Id. ¶ 80 [26]. It is undisputed that Mashel followed up the meeting by placing a memorandum in Plaintiff's file, confirming that he should have no contact with Moukas's children. Id. ¶¶ 81-85 [26-28]; Counseling Memorandum.

         The third incident involves Feldman's successor, current-Principal Steven Schwartz (allegedly Mashel's protégé). According to Plaintiff, in early October 2016, Schwartz radically altered Plaintiff's duties and the resources available to him. Plaintiff complains that Schwartz limited Plaintiff's communication with parents, terminated his role as Special Education District Representative, removed his computer access, removed him from the office from which he had previously worked and reassigned him to a book storage room, removed him from the School Leadership Team, and assigned him to monitoring duty of students without adequate assistance. See FAC ¶¶ 94-101 [37-40]. Plaintiff alleges that these actions were intended to retaliate against him for his complaints about discrimination and his whistleblowing to DOE. Id. ¶ 102 [40-41].

         Plaintiff purports to assert eight convoluted and confusing causes of action. The Court finds that there are, in fact, only five causes of action alleged: retaliation claims under Title VI of the Civil Rights Act based on Plaintiff's complaints about discrimination against prospective students; retaliation claims under the New York City Human Rights Law (NYCHRL); a claim under 42 U.S.C. § 1983 for violation of his First Amendment right to voice opposition to discriminatory practices at the school; whistleblower claims pursuant to New York State Civil Service Law § 75-b(1)(a); and claims for negligent training, supervision, and retention of Mashel, Schwartz, and Feldman.[6] See FAC ¶¶ 105-190 [42-63].


         To survive a motion to dismiss under Rule 12(b)(6), “a complaint must allege sufficient facts, taken as true, to state a plausible claim for relief.” Johnson v., Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). “Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “[T]o survive a motion under Rule 12(b)(6), a complaint does not need to contain detailed or elaborate factual allegations, but only allegations sufficient to raise an entitlement to relief above the speculative level.” Keiler v. Harlequin Enters., Ltd., 751 F.3d 64, 70 (2d Cir. 2014) (citation omitted). When considering a Rule 12(b)(6) motion to dismiss, the Court accepts all factual allegations in the pleadings as true and draws all reasonable inferences in the light most favorable to the plaintiff. See Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir. 2013) (citation omitted).

         A. Plaintiff's Title VI Retaliation Claim is Dismissed Without Prejudice for Failure To Allege Adequately a Connection to Federal Funds

         “Title VI prohibits intentional discrimination based on race in any program that receives federal funding.” DT v. Somers Cent. Sch. Dist., 348 Fed.Appx. 697, 699 (2d Cir. 2009) (citing 42 U.S.C. § 2000d; Alexander v. Sandoval, 532 U.S. 275, 282-83 (2001); Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir. 2001)). Defendants move to dismiss Plaintiff's Title VI claim on the grounds that individuals cannot be liable under Title VI; that Plaintiff has failed to plead sufficient facts to show that he suffered an adverse employment action that was linked to protected activities; and that Plaintiff has not pled that the primary objective of any federal funds provided to the DOE was to benefit employment, which they argue is required for his Title VI retaliation claim. See MTD at 8-11; Reply Memorandum of Law in Further Support of Defendants' Motion to Dismiss (“MTD Reply”) [Dkt. 38] at 2-4.

         1. Title VI Claims May Not be Brought Against Individuals

         Defendants are correct that Title VI does not provide for individual liability. See, e.g., Milione v. City Univ. of New York, 950 F.Supp.2d 704, 708-09 (S.D.N.Y. 2013) (quoting Kelly v. Rice, 375 F.Supp.2d 203, 208 (S.D.N.Y. 2005)), aff'd, 567 Fed.Appx. 38 (2d Cir. 2014). Accordingly, to the extent that Plaintiff intended to assert Title VI claims against the individual Defendants, those claims are dismissed.

         2. Plaintiff Has Sufficiently Alleged Adverse Actions and Causation to State a Title VI Retaliation Claim

         While the Second Circuit has had minimal occasion to address retaliation claims under Title VI, courts in this District have recognized that such a cause of action exists. A Title VI retaliation claim must “plausibly allege (1) participation in a protected activity known to the defendants; (2) adverse action by the defendants against the plaintiff; and (3) a causal connection between the plaintiff's protect[ed] activity and defendants' adverse action.” Diaz v. City Univ. of New York, No. 15CIV1319 PAC MHD, 2016 WL 958684, at *2 (S.D.N.Y. Mar. 8, 2016) (quoting Williams v. CUNY, No. 13 cv 1055 (CBA), 2014 WL 4207112, at *11 (E.D.N.Y. 2014)) (internal quotation marks omitted). See also Koumantaros v. City Univ. of New York, No. 03 CIV10170 GEL, 2007 WL 840115, at *10 (S.D.N.Y. Mar. 19, 2007) (citing Davis v. Halpern, 768 F.Supp. 968, 985 (E.D.N.Y. 1991)). “An ‘adverse action' in the context of a retaliation claim is an action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Williams, 2014 WL 4207112, at *11 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006)) (internal quotation marks omitted). “Plaintiff may show a causal connection either (1) indirectly, by presenting evidence of temporal proximity between the protected activity and adverse action, or through other evidence such as different treatment of similarly situated [individuals], or (2) directly, through evidence of retaliatory animus directed against . . . plaintiff by the defendant.” Koumantaros, 2007 WL 840115, at *10 (internal quotation marks and citation omitted).

         The Court understands Plaintiff's FAC to allege three incidents of retaliation:[7] Mashel's efforts to discipline and fire him after his argument with Dinowitz at the October 2015 meeting; the May 4, 2016 meeting with Mashel and her placement of a memorandum in his file; and Schwartz's alteration of Plaintiff's duties and resources.[8]

         The Court finds that the first incident of retaliation sufficiently states a claim. Plaintiff alleges that Mashel was determined to discipline and dismiss Plaintiff. Causation is sufficiently alleged as Mashel's efforts began immediately after the October 2015 meeting. Although no discipline or dismissal ever occurred, a jury could find that a superintendent's threats to discipline and remove an outspoken dissenter would dissuade a reasonable employee from objecting to discrimination.

         The second incident fails to state a claim. While the FAC makes it difficult to ascertain the timing of the scheduling of the Mashel meeting relative to the allegedly inciting events, the undisputed subject matter of the meeting and the contents of the memorandum documenting the meeting undercut Plaintiff's assertion that any reasonable person would interpret it as having any connection to his protected activities. According to the FAC, the meeting focused not on the issues Plaintiff opposed but on his purported violation of a directive that he not interact with the Moukas children. Although Plaintiff argues that Moukas's close relationship to and alliance with Mashel allows the Court to infer a nefarious purpose (and, as noted supra in note 5, the situation is odd), his assertions read more like a conspiracy theory than a plausible allegation. Although he asserts that during the meeting Mashel forbade him from entering the annex, in effect hindering his ability to do his job, the counseling memorandum that was placed in his file that documented the meeting merely directed him to avoid contact with Moukas's children and said nothing about his authority to enter the annex. See Counseling Memorandum. The counseling memorandum also explicitly says that it “is not disciplinary in any manner and cannot be used in any action against an employee except to prove notice if the employee denies notice.”[9] Id. Counseling memoranda do not constitute adverse employment actions in retaliation claims under Title VII, which, as noted above, are used as precedent when dealing with similar Title VI claims. See, e.g., Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 570 (2d Cir. 2011). As to this particular counseling memorandum, no reasonable worker would be dissuaded from making a charge of discrimination by a counseling meeting and a resulting memorandum that, explicitly on its face, is not disciplinary, cannot be used against the employee beyond proving notice, and appears to be entirely disconnected from Plaintiff's whistleblowing activities. Although Plaintiff contends that this letter has been made part of his personnel file and “constitute[s] retributive action, ” FAC ¶ 83 [27], the Court finds that the meeting and subsequent memorandum do not support a retaliation claim under Title VI.

         In contrast, the Court finds that the third incident does state a claim of retaliation. Plaintiff has alleged that Schwartz radically changed Plaintiff's duties and resources in approximately October 2016. These changes followed the DOE's investigation of the school's kindergarten registration, which Plaintiff's actions initiated, and whose August 29, 2016, report allegedly led to Mashel's retirement and Feldman's transfer. The Court finds that these broad changes to Plaintiff's responsibilities and resources are material to his role and could be viewed as a demotion; a fact finder could easily conclude that demoting an employee who complains about discrimination would dissuade reasonable employees from following suit. Additionally, the Court finds that causation is sufficiently alleged given the relationship alleged between Mashel and Schwartz, and the short time period between the conclusion of the investigation that Plaintiff's reporting spurred and the alterations to his position at P.S. 24.

         3. Plaintiff Fails to Allege the Requisite Connection to Federal Funds

         Section 2000d-3 of Title 42, United States Code, provides: “Nothing contained in [Title VI] shall be construed to authorize action under [Title VI] by any department or agency with respect to any employment practice of any employer . . . except where a primary objective of the Federal financial assistance is to provide employment.” In effect, “[f]or a claimant to recover under Title VI against an employer for discriminatory employment practices, a threshold requirement is that the employer be the recipient of federal funds aimed primarily at providing employment.” Ass'n Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 276 (2d Cir. 1981) (citations omitted). It is unsettled, however, whether retaliation claims affecting employment-in which an individual who voices concerns about discrimination against others is retaliated against with respect to his or her employment-should be treated the same as straight retaliation for employment discrimination claims, in which the underlying protected activity is a complaint that the employee was him- or herself discriminated against.

         Although the Second Circuit has yet to consider this question, a few district courts have. Hickey v. Myers, for example, involved a college dean who had been removed from his position for opposing an allegedly racially-discriminatory admissions policy. No. 09-CV-01307, 2010 WL 786459, at *1-2 (N.D.N.Y. Mar. 2, 2010). The Hickey court rejected the defendant's argument that the plaintiff must prove that a primary objective of the school's federal funding was to provide employment: “Plaintiff does not allege employment discrimination but instead alleges that he was retaliated against because he spoke ...

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