# Xie v. New York City Department of Education

> District Court, E.D. New York · October 17, 2019

URL: https://www.frixlaw.com/law-library/cases/10303355

## Case

- **Court:** District Court, E.D. New York
- **Decided:** October 17, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10303355

## How later opinions describe it (automated extraction)

- noting that after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------
HANNAH XIE,

Plaintiff,

MEMORANDUM & ORDER
v.
19-CV-4097 (MKB)

NEW YORK CITY DEPARTMENT OF
EDUCATION and UNITED FEDERATION OF
TEACHERS QUEENS OFFICE,

Defendants.
---------------------------------------------------------------

MARGO K. BRODIE, United States District Judge:
Plaintiff Hannah Xie, proceeding pro se, commenced the above-captioned action on July
10, 2019 against Defendants New York City Department of Education (the “Department of
Education”) and United Federation of Teachers Queens Office (the “UFT”). (Compl., Docket
Entry No. 1.) Plaintiff alleges that the Department of Education failed to hire, terminated, and
retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. (“Title VII”). (Id. at 4.)1 The Court also construes Plaintiff’s allegations as asserting a
claim for breach of the duty of fair representation against the UFT in violation of the National
Labor Relations Act, 29 U.S.C. § 151 et seq. (“NLRA”). The Court grants Plaintiff’s application
to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) for the purpose of this
Memorandum and Order. For the reasons set forth below, the Court dismisses the Complaint
and grants Plaintiff leave to file an amended complaint within thirty (30) days of this
Memorandum and Order.

1 Because the Complaint is not consecutively paginated, the Court refers to the page
numbers assigned by the Electronic Case Filing (“ECF”) system.
I. Background
The Department of Education hired Plaintiff to work at Cambria Heights Academy
(“CHA”) as a substitute teacher in 2008 and as an “ESL teacher” in September of 2015. (Compl.
10, 29.) In October or November of 2015, Ms. Carleton (“Carleton”), one of Plaintiff’s

colleagues, “showed [Plaintiff] a video [depicting] how badly behaving the students in her . . .
class were.” (Id. at 11.) Plaintiff told Carleton that “New York City teachers are not allowed to
take . . . videos in classrooms according to law.” (Id.) Approximately ten to fourteen days later,
CHA’s assistant principal asked Plaintiff to write a statement about Carleton’s video, but
Plaintiff refused. (Id.) Plaintiff was subsequently “asked to go to the principal’s office and the
door was immediately shut behind [her] and [she] was told that [she] would get fired if they put
[her refusal] into [her] file.” (Id.)
In August of 2017, the Department of Education terminated Plaintiff. (Id. at 5.) On an
unspecified date, Plaintiff “filed an appeal” of her termination with the UFT, but it “did not
help,” and on June 29, 2018, the Department of Education “reconfirmed the discontinuance

decision.” (Id.)
Plaintiff alleges that Melissa Menake, the principal of CHA, “abused her power by firing
[Plaintiff] under the excuse that [she] was not a satisfactory teacher, while the true reason
[Menake] fired [Plaintiff] is because [she did not] write a statement for [Menake] against a co-
worker as [Menake] asked [Plaintiff] to do.” (Id. at 14.)
Plaintiff requests (1) reinstatement of her complaints filed with the New York State
Division of Human Rights and the Equal Employment Opportunity Commission, (2)
reinstatement of her employment, and (3) “compensation for [her] loss due to [her]
unemployment.” (Id.)
II. Discussion
a. Standard of review
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained
in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal,
556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that a plaintiff’s
pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that after Twombly,
the court “remain[s] obligated to construe a pro se complaint liberally”). Nevertheless, the court
is required to dismiss sua sponte an in forma pauperis action if the court determines it “(i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
b. Plaintiff fails to state a claim under Title VII
Title VII discrimination claims are analyzed under the three-stage, burden-shifting
framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See Tillery v. N.Y. State Office of Alcoholism & Substance Abuse Servs., 739 F.
App’x 23, 25 (2d Cir. 2018); Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 136
(2d Cir. 2016). Under this framework, a plaintiff must establish a prima facie case of
discrimination. Tillery, 739 F. App’x at 25. If the plaintiff meets this “minimal” burden,
Holcomb v. Iona College, 521 F.3d 130, 139 (2d Cir. 2008), a “temporary presumption” of
discrimination arises, and the burden shifts to the defendant-employer to articulate a legitimate,
nondiscriminatory reason for the challenged conduct, Vega v. Hempstead Union Free Sch. Dist.,

801 F.3d 72, 84 (2d Cir. 2015) (quoting Littlejohn v. City of N.Y., 795 F.3d 297, 307, 311 (2d
Cir. 2015)). If the defendant-employer articulates such a reason, the burden shifts back to the
plaintiff-employee to show that the defendant-employer’s reason was pretext or otherwise “more
likely than not based in whole or in part on discrimination.” Tillery, 739 F. App’x at 25 (citing
Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009)).
At the pleading stage, however, a plaintiff need not prove discrimination or even allege
facts establishing every element of a McDonnell Douglas prima facie case. Littlejohn, 795 F.3d
at 311; see also Doe v. Columbia Univ., 831 F.3d 46, 55 (2d Cir. 2016) (discussing McDonnell
Douglas burden at the pleading stage in the context of Title VII cases); Williams v. N.Y.C. Hous.
Auth., 458 F.3d 67, 71 (2d Cir. 2006) (“[T]he requirements for establishing a prima facie case

under McDonnell Douglas [do not] apply to the pleading standard that plaintiffs must satisfy in
order to survive a motion to dismiss.” (second alteration in original) (quoting Swierkiewicz v.
Sorema, 534 U.S. 506, 511 (2002))). Instead, a plaintiff need only plead facts sufficient to give
“plausible support” to the plaintiff’s “minimal” initial burden, which is governed by the statute
under which she brings her claims. Vega, 801 F.3d at 84 (quoting Littlejohn, 795 F.3d at 307,
312); see also Javed v. Medgar Evers Coll. of City Univ. of N.Y., 724 F. App’x 73, 74 (2d Cir.
2018). The allegations must “put forward ‘at least minimal support for the proposition’” that the
adverse employment action was “motivated by [the employer’s] discriminatory intent.” Javed,
724 F. App’x at 74 (quoting Vega, 801 F.3d at 85); see also Vega, 801 F.3d at 87 (“[A] plaintiff
must plausibly allege that (1) the employer took adverse action against him, and (2) his race,
color, religion, sex, or national origin was a motivating factor in the employment decision.”).
Title VII retaliation claims are also “evaluate[d] . . . using the three-step framework
outlined in McDonnell Douglas.” Russell v. N.Y. Univ., 739 F. App’x 28, 32 (2d Cir. 2018)

(citing Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018)). Under this framework,
the plaintiff must first establish “a prima facie case of retaliation.” Id. (quoting Hicks v. Baines,
593 F.3d 159, 164 (2d Cir. 2010)). If the plaintiff sustains this initial “de minimis” burden,
Duplan, 888 F.3d at 626, a “presumption of retaliation” arises and the defendant must “articulate
a legitimate, non-retaliatory reason for the adverse employment action,” Saji v. Nassau Univ.
Med. Ctr., 724 F. App’x 11, 14 (2d Cir. 2018) (quoting Hicks, 593 F.3d at 164). “If the
defendant does so, then the burden shifts back to the plaintiff . . . [to] show that the reason
offered by the employer is merely pretext, and that the employer’s ‘desire to retaliate’ was the
actual ‘but-for cause of the challenged employment action.’” Id. (quoting Ya-Chen Chen v. City
Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015)). “‘But-for’ causation does not, however, require

proof that retaliation was the only cause of the employer’s action, but only that the adverse
action would not have occurred in the absence of the retaliatory motive.” Duplan, 888 F.3d at
625 (quoting Vega, 801 F.3d at 90–91).
As with other claims analyzed under the McDonnell Douglas framework, at the pleadings
stage, the allegations need only give “plausible support to the reduced prima facie requirements.”
Id. “Thus, for a retaliation claim to survive a motion for judgment on the pleadings or a motion
to dismiss, the plaintiff must plausibly allege that: (1) [the] defendants discriminated — or took
an adverse employment action — against him, (2) ‘because’ he has opposed any unlawful
employment practice.” Vega, 801 F.3d at 90.
Because Plaintiff fails to allege her race, national origin, color, religion, or gender, and
does not allege any facts to connect an adverse employment action to any protected status, she
has failed to state a claim under Title VII. See Tiffany v. Dzwonczyk, 696 F. App’x 7, 9 (2d Cir.
2017) (“Failure to allege membership in a protected class or a relationship between adverse

actions and protected class status warrants dismissal.”); Vega, 801 F.3d at 87 (“[A] plaintiff must
allege that the employer took adverse action against her at least in part for a discriminatory
reason, and she may do so by alleging facts that directly show discrimination or facts that
indirectly show discrimination by giving rise to a plausible inference of discrimination.” (citing
Littlejohn, 795 F.3d at 310)); Redd v. N.Y. Div. of Parole, 678 F.3d 166, 172–73 (2d Cir. 2012)
(“Abusive conduct in the workplace for reasons other than a plaintiff’s membership in a
protected class is not actionable under Title VII.”). The Court therefore dismisses Plaintiff’s
Title VII discrimination claim.
In addition, the Court dismisses Plaintiff’s Title VII retaliation claim because she fails to
allege that she engaged in any protected activity. See Tepperwien v. Entergy Nuclear Ops., Inc.,

663 F.3d 556, 567 (2d Cir. 2011) (explaining that Title VII “prohibits an employer from taking
‘materially adverse’ action against an employee because the employee opposed conduct that
Title VII forbids or the employee otherwise engaged in protected activity” (citations omitted));
McMenemy v. City of Rochester, 241 F.3d 279, 283 (2d Cir. 2001) (“[Title VII] prohibits
discrimination by an employer against an employee who ‘has opposed any practice made an
unlawful employment practice’ by Title VII or who has ‘participated in any manner in an
investigation, proceeding, or hearing’ under Title VII.” (citations omitted)); Cruz v. Coach
Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000) (“[T]he law is clear that opposition to a Title VII
violation need not rise to the level of a formal complaint in order to receive statutory protection,
this notion of ‘opposition’ includes activities such as ‘making complaints to management,
writing critical letters to customers, protesting against discrimination by industry or by society in
general, and expressing support of co-workers who have filed formal charges.’” (quoting Sumner
v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.1990))).

Accordingly, the Court dismisses Plaintiff’s discrimination and retaliation claims under
Title VII.
c. Plaintiff fails to state a duty of fair representation claim
“The duty of fair representation is a ‘statutory obligation’ under the NLRA, requiring a
union ‘to serve the interests of all members without hostility or discrimination . . . , to exercise its
discretion with complete good faith and honesty, and to avoid arbitrary conduct.’” Fowlkes v.
Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015) (quoting Vaca v. Sipes, 386 U.S. 171,
177 (1967)). “The objective of the duty of fair representation is to provide substantive and
procedural safeguards for minority members of the collective bargaining unit.” Flight
Attendants in Reunion v. Am. Airlines, Inc., 813 F.3d 468, 473 (2d Cir. 2016) (quoting Jones v.

Trans World Airlines, Inc., 495 F.2d 790, 798 (2d Cir. 1974)), cert. denied, 137 S. Ct. 313
(2016). “A union breaches its duty of fair representation if its actions with respect to a member
are arbitrary, discriminatory, or taken in bad faith.” Figueroa v. Foster, 864 F.3d 222, 229 (2d
Cir. 2017) (quoting Fowlkes, 790 F.3d at 388); see also Flight Attendants in Reunion, 813 F.3d
at 473. If a plaintiff shows “that the union’s actions meet this standard, the plaintiff must then
‘demonstrate a causal connection between the union’s wrongful conduct and the plaintiff’s
injuries.’” Pathania v. Metro. Museum of Art, 563 F. App’x 42, 44 (2d Cir. 2014) (alteration
omitted) (quoting Spellacy v. Airline Pilots Ass’n-Int’l, 156 F.3d 120, 126 (2d Cir. 1998)). “A
court’s examination of a union’s representation ‘must be highly deferential, recognizing the wide
latitude that negotiators need for the effective performance of their bargaining responsibilities.’”
Alen v. U.S. Airways, Inc., 526 F. App’x 89, 91 (2d Cir. 2013) (quoting Air Line Pilots Ass’n,
Int’l v. O’Neill, 499 U.S. 65, 78 (1991)). Neither conclusory allegations nor “mere negligence”
by the union in its enforcement of a collective bargaining agreement is sufficient to state a claim.

Mancus v. The Pierre Hotel, 45 F. App’x 76, 77 (2d Cir. 2002) (quoting United Steelworkers of
Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362, 372 (1990)).
While Plaintiff alleges that her “union did not help,” (Compl. 5), she fails to provide any
non-conclusory allegations to support a claim for breach of the duty of fair representation.
Plaintiff has neither alleged that the UFT’s actions were arbitrary, discriminatory, or in bad faith,
nor alleged any facts from which the Court could infer such conduct. See Messina v. 1199 SEIU
United Healthcare Workers E., 453 F. App’x 25, 27 (2d Cir. 2011) (holding that the duty is not
breached “where the union fails to process a meritless grievance, fails to process a grievance due
to error in evaluating its merits, engages in mere negligent conduct or errors in judgment, or
decides not to arbitrate a grievance” (citations omitted)); Barr v. United Parcel Serv., 868 F.2d

36, 43–44 (2d Cir. 1989) (“Tactical errors are insufficient to show a breach of the duty of fair
representation; even negligence on the union’s part does not give rise to a breach.”).
Accordingly, the Court dismisses Plaintiff’s duty of fair representation claim.
d. Leave to amend
In light of Plaintiff’s pro se status, the Court grants Plaintiff leave to file an amended
complaint within thirty (30) days of this Memorandum and Order. Plaintiff’s amended
complaint must (1) identify the protected class to which she belongs, if any, (2) state any
circumstances that she believes give rise to an inference of discrimination, and (3) state any
complaints that she made that might qualify as protected activity. In addition, Plaintiff must set
forth any action taken by the UFT that she believes was arbitrary, discriminatory, or taken in bad
faith. Plaintiff must include any and all allegations that she wishes to pursue in her amended
complaint, as it will completely replace the original Complaint. The amended complaint should
be captioned “Amended Complaint” and bear the same docket number as this Memorandum and

Order.
III. Conclusion
For the reasons set forth above, the Court dismisses Plaintiff’s Complaint and grants
Plaintiff leave to file an amended complaint within thirty (30) days of the date of this
Memorandum and Order. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore denies in forma pauperis status for
the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
Dated: October 17, 2019
Brooklyn, New York
SO ORDERED:

s/ MKB
MARGO K. BRODIE
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303355. Public record. Not legal advice.