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Hausdorf v. NYC Department of Education

United States District Court, S.D. New York

February 19, 2018



          SARAH NETBURN, United States Magistrate Judge.


         Plaintiff Walter F. Hausdorf, pro se, brings this action alleging that the New York City Department of Education (“DOE”) and administrators at William Cullen Bryant High School (the “High School”) in Queens, New York discriminated and retaliated against him in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”) and the New York City Human Rights Law (“CHRL”). On July 19, 2017, DOE filed a motion to dismiss pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 12. On October 5, 2017, the Honorable Paul A. Engelmayer referred the motion to me for a report and recommendation. ECF No. 20. Plaintiff has since filed a letter indicating that he wishes to dismiss his claims against Defendants Namita Dwarka, Peter Cardone, and Vasilios Manolios. ECF No. 22. For the reasons that follow, I recommend granting in part and denying in part DOE's motion to dismiss. I also recommend dismissing the claims against the individual defendants without prejudice.


         Plaintiff worked for 35 years as a teacher and Girls' Varsity Softball Coach at the High School. ECF No. 2 at 15. In September 2011, Plaintiff told a school administrator that he was interested in a position as Coordinator of Affairs. Id. at 17. According to the complaint, the administrator responded that the High School's principal, Defendant Dwarka, did not want to fill the position with someone who was going to retire in the near future. Id. Plaintiff had never expressed any intention of retiring soon, but nonetheless, he was not hired for the position. Id.

         Plaintiff alleges that over the months and years that followed, school administrators frequently treated him unfairly because of his age. For example, Plaintiff claims that he received satisfactory performance ratings during most of his 35 years of employment at the High School and only began receiving negative performance ratings as he neared retirement age. Id. at 20. In March 2013, a union representative allegedly informed Plaintiff that school administrators had offered to remove an unsatisfactory performance rating from Plaintiff's file if he agreed to retire. Id. at 22. Plaintiff refused the offer. Id. Similarly, in May 2014, an assistant principal purportedly asked Plaintiff whether he was planning to retire, and Plaintiff responded that he had not yet decided. Id. at 16. Immediately thereafter, the principal allegedly placed disciplinary letters in Plaintiff's employment file. Id.

         In addition, Plaintiff claims that the High School often treated him differently than younger teachers and coaches at the school. Plaintiff alleges that the High School denied him the opportunity to teach a sixth class, which would have allowed him to earn more money, while younger teachers were given six classes to teach. Id. at 16. He also asserts that his paychecks were delayed on several occasions, whereas younger employees were paid on time. Id. at 15. In May 2014, Plaintiff filed a complaint with DOE's Office of Equal Opportunity and sent a letter to the Chancellor of DOE claiming that he had been subjected to discrimination based on his age. Id.

         In June 2014, Plaintiff reluctantly retired from his teaching position, while maintaining his responsibilities as a softball coach. Id. at 25. Plaintiff asserts that school administrators continued to discriminate against him after his retirement. He alleges that he was told to move his softball equipment on multiple occasions, his practice times were changed, he was asked to update his concussion certification, his pay was delayed, he received insubordination letters, and the school's athletic director, Defendant Cardone, held a meeting with the softball team without Plaintiff present. Id. at 26-27. On March 10, 2016, school administrators allegedly told Plaintiff that he needed to cancel all of his Saturday games. Id. at 26. Administrators indicated that athletes should not be obligated to play on Saturdays. Id. Plaintiff alleges that at least ten other High School teams with younger coaches continued to play games on Saturdays and were not required to cancel any games. Id. at 16.

         Plaintiff apparently filed a second complaint with DOE's Office of Equal Opportunity in April 2016. Id. at 13. Shortly thereafter, on May 23, 2016, Plaintiff also filed a complaint with the New York State Division of Human Rights (“SDHR”), alleging that Defendants discriminated and retaliated against him because of his age and prior complaints. Id. at 8. The SDHR dismissed Plaintiff's charge of discrimination in its entirety on November 22, 2016, finding that there was no probable cause to believe that Defendants had engaged in the discriminatory practices and retaliation alleged in Plaintiff's complaint. ECF No. 14-3 at 2. In the meantime, however, High School administrators allegedly gave Plaintiff an unsatisfactory rating in his performance review on June 30, 2016. ECF No. 2 at 6. And in September 2016, Defendants decided not to rehire Plaintiff as a softball coach for the 2016-2017 school year. Id.

         On March 23, 2017, Plaintiff filed this case in federal court, raising various claims under the CHRL and the ADEA. ECF No. 2. He was 65 years old at the time. Id. at 2. Plaintiff alleged that Defendants (1) subjected him “to harassment, retaliation, age discrimination and financial hardship”; (2) “denied [him] the chance to teach an extra class”; (3) cancelled all of his Saturday softball games; (4) denied him “additional practice time”; (5) withheld his pay for two months; (6) gave him an unsatisfactory rating on June 30, 2016; and (7) refused to rehire him as softball coach. Id. at 2, 6. In support of his claims, Plaintiff attached the complaint he had previously filed with the SDHR. Id. at 8. On July 19, 2017, DOE filed a motion to dismiss Plaintiffs' claims in their entirety under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 12.


         When it filed its motion to dismiss, DOE did not move on behalf of Defendants Dwarka, Cardone, and Manolios because it believed that they had not been properly served. Id. at 9 n.1. Nevertheless, DOE argued that “the grounds for the motion would apply to all defendants.” Id. On January 10, 2018, the Court ordered Plaintiff to file a letter stating whether he had served the individual defendants. ECF No. 21. In response, Plaintiff filed a letter on January 17, 2018, indicating that he had “decided not to pursue the claims against the individual defendants.” ECF No. 22. Accordingly, I recommend dismissing all claims against Defendants Dwarka, Cardone, and Manolios without prejudice.


         “It is well established that the submissions of a pro se litigant must be construed liberally and interpreted ‘to raise the strongest arguments that they suggest.'” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). Pro se litigants must still establish subject matter jurisdiction, and such “jurisdictional requirements are not relaxed based on a litigant's pro se status.” Escoffier v. MFY Legal Servs., No. 13-CV-8089, 2015 WL 221048, at *1 (S.D.N.Y. Jan. 15, 2015). In addition, a district court generally should not dismiss a pro se complaint “without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). But “a motion for leave to amend a complaint may be denied when amendment would be futile.” Tocker v. Philip Morris Cos., 470 F.3d 481, 491 (2d Cir. 2006).

         I. CHRL Claims[1]

         “[F]ederal courts are courts of limited jurisdiction and lack the power to disregard such limits as have been imposed by the Constitution or Congress.” Durant, Nichols, Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (internal quotation marks omitted) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978)). Therefore, a case must be “dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id.

         A. Election of Remedies

         New York requires parties claiming age discrimination to make a binding choice. They may pursue their state or local claim either directly through the courts or through the administrative agency. If the ...

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