United States District Court, S.D. New York
WALTER F. HAUSDORF, Plaintiff,
NYC DEPARTMENT OF EDUCATION, et al., Defendants.
REPORT AND RECOMMENDATION
NETBURN, United States Magistrate Judge.
HONORABLE PAUL A. ENGELMAYER:
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.
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
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.
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.
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.
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.
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.
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.
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).
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.
Election of Remedies
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 ...