Peterson v. New York City Department of Education

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JESSICA PETERSON,

Plaintiff,

MEMORANDUM & ORDER

v.

18-CV-1515 (ILG)

NEW YORK CITY DEPARTMENT OF

EDUCATION

and

JOESPH SCARMATO,

Defendants.

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GLASSER, Senior United States District Judge:

Plaintiff is a Staten Island public school teacher and union chapter president. (Compl.

¶¶ 14–15, 21). Defendants are the City Department of Education (“DOE”) and the principal of

Plaintiff’s former high school. (Id. ¶¶ 6–7). Defendants allegedly: (i) denied and removed

Plaintiff’s disability accommodations; (ii) retaliated against her; (iii) created a hostile

work environment; and (iv) intentionally caused her emotional distress. (Id. ¶¶ 67–102). The

complaint asserts various causes of action under the Americans with Disabilities Act of 1990,

42 U.S.C. § 12101 et seq. (“ADA”); the Civil Rights Act of 1871, 42 U.S.C. § 1983; the New York

State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”); the New York City Human

Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”); Section 75-b of the New York

Civil Service Law (“NYCSL”); and New York common law. (Id.).

Defendants move to dismiss all claims under Fed. R. Civ. Proc. 12(b)(6), for failure to state

a claim upon which relief can be granted. (ECF No. 13). For the reasons stated below, the motion

is GRANTED in part and DENIED in part.

BACKGROUND

I. Initial Facts

Plaintiff taught at Tottenville High School from 1995–1996 and from 2004–2017. (Compl.

¶ 14). In 2007, she suffered injuries to her neck, back and hips, and received a disability

accommodations letter from the DOE. (Id. ¶¶ 16, 20; Def’s. Mem. 3).

Plaintiff believes she was granted six accommodations: assignment of the same classroom

for teaching, freedom from sharing that classroom with other teachers, secured cabinets to avoid

carrying teaching materials, delivery of proctoring materials for exams, exemption from hall

passing1 and elevator access. (Compl. ¶ 20; ECF No. 14-1 at 45). Defendants argue that Plaintiff

was granted only three of these: assignment of the same classroom, secured cabinets and elevator

access.2 (Def’s. Mem. 2–6).

On June 2, 2015, Plaintiff became union chapter leader of the high school. (Compl. ¶ 21).

In that capacity, she filed approximately thirty grievances against the school and achieved a

number of victories. (Id. ¶¶ 26–32, 51).

Tensions escalated over the next few years, which Plaintiff characterizes as retaliation for

her union activity and for complaining about her disability accommodations.3 Defendants

1 A “no hall passing” accommodation is the right to not walk in the hallway when students do so.

(ECF No. 14-1 at 53).

2 As discussed infra, a state investigation of Plaintiff for misconduct determined that her

“six-point” accommodations letter was a forgery. (ECF No. 14-1 at 65). Ordinarily, this Court

would be required to accept Plaintiff’s factual allegations regarding the accommodations letter as

true for the purposes of resolving Defendants’ motion to dismiss. However, Defendants’ motion

hinges in part on whether the findings of the state investigation preclude Plaintiff from alleging

that she was granted six accommodations. (Def’s. Mem. 7–8).

3 On September 9, 2016, Plaintiff met with Defendant Scarmato to complain that her

accommodations were not being met. (Compl. ¶ 34). The following month, she filed a report with

allegedly revoked her existing accommodations,4 denied her requests for new accommodations,5

attacked her “pedagogy and work performance,” opened a New York State Education Law

§ 3020-a investigation against her for misconduct, denied her access to school meetings and school

computers6 and sent her disciplinary letters. (Id. ¶¶ 44–66; Def’s. Mem. 4–5).

II. Plaintiff’s Complaint

Plaintiff filed her complaint in this Court on March 12, 2018.7 She alleges: (1) violation of

the ADA by denying Plaintiff disability accommodations (“Claim I”); (2) violation of the ADA by

retaliating against Plaintiff for making accommodations requests (“Claim II”); (3) violation of

42 U.S.C. § 1983 by retaliating against Plaintiff for exercising her First Amendment rights

(“Claim III”); (4) violation of the NYSHRL by denying Plaintiff disability accommodations and

various administrative agencies regarding the discrimination, harassment and retaliation she

believed she was experiencing. (Id. ¶ 43).

4 The complaint alleges that school officials: (1) informed Plaintiff she would have to leave her

classroom for two periods during the day (“June 11, 2015 Incident”); (2) asked her to resubmit all

medical documentation of her disability (“September 7 and September 9, 2016 Incidents”);

(3) modified her schedule in a way that forced her to carry her belongings back and forth between

rooms (“September 10, 2016 Incident”); and (4) sent her a letter on December 12, 2016 denying

without explanation all of her existing medical accommodations (“December 12, 2016 Incident”).

(Id. ¶¶ 24, 33, 34, 36, 46).

5 The complaint does not specify which new accommodations Plaintiff sought, other than a request

for leave under the Family Medical Leave Act (“FMLA”) after she allegedly suffered a new injury.

(Id. ¶¶ 50, 52).

6 On June 23, 2017, Plaintiff was reassigned out of the school pending the outcome of the 3020-a

investigation. (Compl. ¶ 15; Def’s. Mem. 5). Following her reassignment, Defendants allegedly

refused to let Plaintiff attend school-related meetings and revoked her computer login credentials.

(Compl. ¶ 59–66).

7 Plaintiff also filed a complaint with the New York State Public Employment Relations Board

(“PERB”), served on Defendants a Written Verified Notice of Claim, and received a right to sue

letter from the Equal Employment Opportunity Commission. (Id. ¶¶ 12–13, 62).

by retaliating against her for complaining about her accommodations (“Claim IV”); (5) violation

of the NYCHRL by denying Plaintiff disability accommodations and by retaliating against her for

complaining about her accommodations (“Claim V”); (6) violation of NYCSL § 75-b by retaliating

against Plaintiff for filing reports with various administrative agencies (“Claim VI”); and

(7) intentional infliction of emotional distress (“IIED”) (“Claim VII”). (Compl. ¶¶ 67–102).

Plaintiff also asks this Court to construe the complaint to include unpled claims for hostile work

environment under the ADA, NYSHRL and NYCHRL. (Pl’s Opp’n 14).

Claims I and II are against Defendant DOE only. All other claims are against both

Defendants.

III. New York State Education Law § 3020-a Investigation and Decision

While Plaintiff’s complaint remained pending, the DOE investigated Plaintiff for

misconduct. That investigation culminated in an April 24, 2018 decision.8 (ECF No. 14-1). The

hearing officer found that Plaintiff’s “six-point” accommodations letter was a forgery, submitted

to obtain accommodations to which she was not entitled.9 (Id. at 61–64). Defendants’ three-point

letter was deemed authentic. (Id.). These determinations were based on the following evidence:

1. The three-point letter and six-point letter contained identical signatures,10 indicating

that at least one was doctored.11 (Id. at 63).

8 New York State Education Law § 3020-a provides that a school district cannot terminate a

tenured teacher without a hearing.

9 Specifically, the hearing officer found that Plaintiff in 2016 “intentionally created and/or

possessed and submitted a forged document containing false information” to both Defendant

Scarmato and the Medical Division of the DOE. (ECF No. 14-1 at 4, 64, 66).

10 Plaintiff theorized that the signatory used a rubber stamp to sign the letter. The hearing officer

found this explanation implausible because the signature touched the salutation and typed

signature line in precisely the same places. (Id. at 63).

11 Only photocopies of the letter were available, even though originals are supposed to be sent to

the employee receiving the accommodation. (Id. at 48). Notably, Plaintiff was unable to recall

whether she had received an original copy of the three-point or six-point letter. (Id.).

2. Certain words in the six-point letter were typed in a different font from the rest of the

document. (Id. at 46).

3. The Office of Equal Opportunity and the Medical Division of the DOE, which are

required to keep disability accommodation letters on file, had only the three-point letter

in their records. (Id. at 62).

4. The six-point letter did not include standard language used in accommodation letters.

(Id. at 46).

5. Certain accommodations found only in the six-point letter would not have been feasible

at such a large school. If such accommodations had been granted, email records would

have at least reflected discussion of such concerns, which they did not. (Id. at 61).

6. Plaintiff shared a classroom for at least seven school years during the relevant period,

without protest. This begged the conclusion that a “no classroom sharing”

accommodation, found only in the six-point letter, was never granted. The hearing

officer found Plaintiff’s explanation for this discrepancy to be untruthful. (Id. at 62).

7. Plaintiff never requested that teaching materials be delivered to her during the relevant

period. This begged the conclusion that the “delivery of materials” accommodation,

found only in the six-point letter, was never granted. (Id. at 60).

8. A former principal of the high school testified credibly that accommodations of “no

hall passing” and “no classroom sharing” would not have been feasible at such a large

school. This begged the conclusion that those accommodations, found only in the

six-point letter, were never granted. (Id. at 61).

9. Various third parties testified credibly to having seen the three-point letter on prior

occasions, but not the six-point letter. The hearing officer did not find Plaintiff’s

explanation for this discrepancy plausible. (Id. at 62, 63).

The hearing officer concluded that Plaintiff only ever received three disability accommodations:

assignment of the same classroom for teaching, secured cabinets and elevator access. (Id. at 61–

63). Plaintiff was never entitled to delivery of materials, exemption from hall passing, or freedom

from sharing her classroom. (Id. at 62-63). This finding was based on credible documentary and

testimonial evidence, namely “requests [for accommodations] which the [Plaintiff] made in 2007,

and the manner in which the Medical Division and the school granted those requests in 2007.”

(Id.).

The hearing officer fined Plaintiff $20,000 for her forgery of the six-point letter, noting

that the “falsification of a document calls into question the ability of the employer to trust an

employee.” (Id. at 65). However, she stopped short of terminating the Plaintiff, citing her tenure

and lack of prior disciplinary record. (Id.).

Finally, the hearing officer determined that Plaintiff called a student “bat shit crazy” on

two occasions, and therefore violated a school regulation prohibiting verbal abuse. (Id. at 66). This

was deemed a minor infraction which did not warrant significant punishment. (Id.).

IV. Defendants’ Motion to Dismiss

Following the 3020-a decision, Defendants moved on various grounds to dismiss this case

for failure to state a claim on which relief can be granted. (ECF No. 13; Def’s. Mem. 2). For the

reasons discussed below, Defendants’ motion is:

(1) DENIED as to Defendant DOE with respect to Claims I and II, which were not brought

against Defendant Scarmato;

(2) DENIED as to Defendant Scarmato with respect to Claims IV and V; and

(3) GRANTED with respect to all other claims.

Furthermore, Plaintiff may only rely on the December 12, 2016 Incident, see note 4, supra, as the

basis for the remaining claims.

LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff’s complaint “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the Court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft, 556 U.S. at 678. The Court must accept the non-moving party’s factual

allegations as true and draw all reasonable inferences in its favor. ATSI Commc’ns, Inc. v. Shaar

Fund, LTD., 493 F.3d 87, 98 (2d Cir. 2007).

DISCUSSION

I. Preclusive Effect of the 3020-a Decision

Defendants argue that several issues before this court were already decided by the 3020-a

proceeding. (Def’s. Mem. 7). The Court finds that while the 3020-a decision does not fully

extinguish any particular claim, it does preclude many of the allegations on which Plaintiff relies

to satisfy those claims.

Federal courts apply the rules of collateral estoppel of the state in which the prior decision

was rendered, which in this case is New York. Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir.

2000). In New York, the “doctrine [of collateral estoppel] applies if the issue in the second action

is identical to an issue which was raised, necessarily decided and material in the first action, and

the plaintiff had a full and fair opportunity to litigate the issue in the earlier action.” Giove v. City

of New York, No. 15-CV-02998 (PKC) (VMS), 2018 WL 736008, at *3 (E.D.N.Y. Feb. 5, 2018)

(citing Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349 (1999)). Section 3020-a

proceedings generally satisfy these requirements. Ferraro v. New York City Dep’t of Educ.,

752 F. App’x 70, 73 (2d Cir. 2018).

Several material issues before this Court were actually and necessarily decided by the

3020-a proceeding. Most critically, the hearing officer determined that Plaintiff was only ever

granted three accommodations: assignment of the same classroom, secured cabinets and elevator

access. (ECF No. 14-1 at 60–61). Plaintiff was never granted delivery of materials, exclusion from

classroom sharing or exemption from hall passing. (Id.). The six-point letter was deemed a forgery,

which Plaintiff submitted with the intent to defraud the DOE. (Id. at 64).

These issues were also litigated fairly and fully. The hearing officer based her conclusions

on clear documentary evidence and the testimony of multiple witnesses, including Plaintiff, who

she found at times to be untruthful. (Id. at 59–64).

Accordingly, this Court is precluded from giving any weight to any factual allegations in

the complaint which directly contradict these findings. In particular, Plaintiff alleges that:

On or about June 11, 2015, Principal Scarmato and AP of Organization Clifford

Bloom announced that they would have Plaintiff vacate her room for two periods

at the end of the day since she became the union chapter leader and was not teaching

classes in her room, thereby revoking the accommodation for exclusive use of a

classroom that Plaintiff had been granted.

(Compl. ¶¶ 24) (emphasis added). She further alleges that:

On or about September 10, 2016, Principal Scarmato removed additional existing

accommodations previously granted to Plaintiff, referencing “school

reorganization” as the justification. Specifically, Plaintiff’s schedule was modified

so that her teaching periods and prep periods were no longer consecutive. The result

was that she had to repeatedly vacate her classroom throughout the day, rather

than just the last two periods of the day. . . . Notably, approximately thirty (30)

teachers had exclusive use of their own classrooms during the 2016–2017 school

year.

(Id. ¶¶ 36) (emphasis added). These two allegations are premised on Defendants revoking the “no

classroom sharing” accommodation, which the 3020-a proceeding determined was never granted

in the first place.12 (ECF No. 14-1 at 61). Accordingly, Plaintiff’s federal, state and city law claims

12 In opposing Defendants’ motion, Plaintiff argues that “even though the [hearing officer] found

that [Plaintiff] modified some disability related paperwork, that does not address the question of

whether the [DOE] reasonably accommodated [her] ongoing medical needs and need for

accommodation in general.” (Pl’s Opp’n 13). This is only true to the extent that Plaintiff is arguing

she was entitled to new accommodations. The June 11, 2015 and September 10, 2016 Incidents

allege that certain accommodations were revoked. Furthermore, the hearing officer did not find

that Plaintiff merely “modified some disability related paperwork.” Rather, she concluded that

for disability discrimination and disability retaliation cannot be premised on the June 11, 2015 or

September 10, 2016 Incidents. More generally, Plaintiff may not allege that she was previously

granted any disability accommodations beyond those delineated in the three-point letter:

assignment of the same classroom, secured cabinets and elevator access.

II. Failure to Accommodate Under ADA, NYSHRL and NYCHRL (Claims I, IV and V)

Claims I, IV and V allege failure to accommodate a disability under the ADA, NYSHRL

and NYCHRL. (Compl. ¶¶ 67–77, 86–88, 89–91). Defendants argue that Plaintiff fails to allege

facts which could plausibly establish a prima facie case for each of those claims. (Def’s. Mem. 9).

To establish a prima facie case for failure to accommodate under the ADA, the plaintiff

must show that: (1) she was an individual with a disability under the meaning of the statute; (2) her

employer is covered by the statute and had notice of the disability; (3) she could perform the

essential functions of the job with reasonable accommodation; and (4) the employer failed to

provide reasonable accommodation. Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 184 (2d Cir.

2006). The elements to establish disability discrimination under the NYSHRL and NYCHRL

“generally track the ADA.” Thomson v. Odyssey House, No. 14-CV-3857 (MKB), 2015 WL

5561209, at *18 (E.D.N.Y. Sept. 21, 2015), aff'd, 652 F. App’x 44 (2d Cir. 2016). “However, the

NYSHRL provides broader protection than the ADA, and the NYCHRL is broader still.” Pagan

v. Morrisania Neighborhood Family Health Ctr., No. 12 Civ. 9047(WHP), 2014 WL 464787, at

*6 (S.D.N.Y. Jan. 22, 2014). At issue is whether Plaintiff sufficiently alleges that she was denied

reasonable accommodation. Defendants do not appear to contest that the other requirements are

satisfied.

Plaintiff “intentionally submitted a forged document containing false information” with “the intent

to defraud the Department [of Education] by obtaining medical accommodations to which she was

not entitled.” (ECF No. 14-1 at 64).

According to the complaint, Defendants revoked Plaintiff’s existing accommodations on

July 11, 2015, September 7, 2016, September 9, 2016, September 10, 2016 and December 12,

2016. (Compl. ¶¶ 33, 34, 36, 46). However, Plaintiff is collaterally estopped from relying on the

July 11, 2015 and September 10, 2016 Incidents. See Part I, supra. These are premised on the

revocation of non-existent accommodations in the forged six-point letter. (Id. ¶ 36). Nor may

Plaintiff rely on the September 7 and September 9, 2016 Incidents, in which school administrators

asked Plaintiff to resubmit her medical documentation. (Id. ¶¶ 33, 34). A mere request for

paperwork does not itself constitute failure to provide reasonable accommodation. However,

Plaintiff may rely on the December 12, 2016 Incident to allege that she was denied reasonable

accommodation. According to the complaint, Defendants sent Plaintiff a letter on that date

revoking “all” of her existing medical accommodations. (Id. ¶ 46). This would presumably include

the revocation of genuine accommodations contained in the three-point letter.

Defendants also allegedly denied Plaintiff’s requests for new disability accommodations.

(Id. ¶ 44). With one exception—Plaintiff’s request for FMLA leave—the complaint does not

specify which new accommodations requests were denied. See note 5, supra. The 12(b)(6)

standard of review is not satisfied by “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” Ashcroft, 556 U.S. at 678. Furthermore, FMLA leave

is not a reasonable accommodation under the ADA, but rather “a right enforceable under a separate

statutory provision.” Acker v. Gen. Motors, L.L.C., 853 F.3d 784, 791 (5th Cir. 2017). “An

employee seeking FMLA leave is by nature arguing that he cannot perform the functions of the

job, while an employee requesting a reasonable accommodation communicates that

he can perform the essential functions of the job.” Id. at 792; see also Navarro v. Pfizer Corp., 261

F.3d 90, 101 (1st Cir. 2001) (noting that the “ADA and the FMLA have divergent aims, operate in

different ways, and offer disparate relief”).

Accordingly, only one allegation contained in the complaint—the December 12, 2016

Incident—could plausibly give rise to a failure to accommodate claim.

III. Retaliation Under ADA, NYSHRL and NYCHRL (Claims II, IV and V)

On September 9, 2016, Plaintiff complained to Defendant Scarmato that her disability

accommodations were not being met (“September 2016 Meeting”). (Compl. ¶ 34). During the

week of October 9–15, 2016, she reported the discrimination, harassment and retaliation she

believed she was experiencing to several federal, state and local administrative agencies (“October

2016 Report”). (Id. ¶ 43). Plaintiff alleges that Defendants retaliated against her for taking these

actions. (Id. ¶¶ 79, 87, 90).

To make out a prima facie retaliation case under the ADA and NYSHRL, the plaintiff must

demonstrate that: (1) she engaged in a protected activity; (2) the defendants were aware that she

engaged in that activity; (3) she was subject to an adverse employment action; and (4) there is a

causal nexus between that action and the protected activity. Kemp v. Metro-N. R.R., 316 F. App’x

25, 26 (2d Cir. 2009). Under the NYCHRL, the elements of retaliation are “identical except that

the plaintiff need not prove any ‘adverse’ employment action.” Leon v. Columbia Univ. Med. Ctr.,

No. 11-cv-08559 (NSR), 2013 WL 6669415, at *12 (S.D.N.Y. Dec. 17, 2013), aff’d, 597 F. App’x

30 (2d Cir. 2015). Instead, she need only demonstrate a “negative employment action” which

disadvantaged her “in any manner.” Fattoruso v. Hilton Grand Vacations Co., LLC, 525 F. App’x

26, 27 (2d Cir. 2013). Defendants argue that Plaintiff fails to allege facts which could plausibly

satisfy the third and fourth elements of a prima facie case. (Def’s. Mem. 13-14). They do not

appear to contest that the September 2016 Meeting and October 2016 Report were protected

activities, or that they knew about those protected activities.

The adverse action requirement of the ADA and NYHRL is met by showing that “a

reasonable employee would have found the challenged action materially adverse,” for instance if

it would have “dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Vale v. Great Neck Water Pollution Control Dist., 80 F. Supp. 3d 426, 440

(E.D.N.Y. 2015) (citing Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006)). The NYCHRL’s more lenient standard is met upon a showing “that something happened

that would be reasonably likely to deter a person from engaging in protected activity.” Leon, 2013

WL 6669415, at *12 (internal quotation marks omitted).

The causal nexus requirement is satisfied either through direct evidence of animus, or

“indirectly, by showing that the protected activity was followed closely by discriminatory

treatment, or through other circumstantial evidence such as disparate treatment of fellow

employees who engaged in similar conduct.” Gordon v. New York City Bd. of Educ., 232 F.3d 111,

117 (2d Cir.2000). The plaintiff must “plausibly allege that the retaliation was a ‘but-for’ cause of

the employer’s adverse action.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90

(2d Cir. 2015) (citing Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 339 (2013)). In order

to allege causation based solely on timing, the temporal proximity of the protected acts and the

alleged retaliation must be “very close.” Vaughn v. City of New York, No. 06-CV-6547 (ILG),

2010 WL 2076926, at *10 (E.D.N.Y. May 24, 2010) (quoting Clark County Sch. Dist. v. Breeden,

532 U.S. 268, 273 (2001)). While there is no bright line rule, “district courts in this Circuit have

consistently held that a passage of more than two months . . . does not allow for an inference of

causation.” Vinokur v. Sovereign Bank, 701 F. Supp. 2d 276, 296 (E.D.N.Y. 2010); see also

Gorman–Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d 545, 554 (2d

Cir.2001) (collecting cases).

The complaint alleges that shortly after Plaintiff complained about her disability

accommodations, Defendant Scarmato asked her to resubmit her medical documentation for

review. (Compl. ¶ 34). That mere request could not plausibly amount to retaliation. However, it

might be construed as the beginning of a process which culminated in the December 12, 2016 letter

revoking all of Plaintiff’s existing accommodations. (See Id. ¶ 46). The timing of Principal

Scarmato’s request therefore permits the inference of a causal nexus between the September 2016

Meeting and the December 12, 2016 Incident. Furthermore, the severity of Plaintiff having all her

accommodations revoked in that letter rises to the level of a materially adverse action (and,

necessarily, a negative employment action under the NYCHRL). See Loeffler v. Staten Island

Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009) (noting that the NYCHRL is a “one-way ratchet,”

by which interpretations of state and federal civil rights statutes serve only “as a floor below which

the City's Human Rights law cannot fall”).

The remaining allegations in the complaint, however, could not plausibly satisfy either the

adverse/negative action requirement or the causal nexus requirement. Specifically, Plaintiff alleges

that Defendants sent her disciplinary letters,13 modified her work schedule,14 subjected her to a

13 The December 12, 2016 and February 17, 2017 disciplinary letters (see Compl. ¶¶ 47–49) are

too remote in time to infer a causal nexus with the September 2016 Meeting or the October 2016

Report, and Plaintiff does not allege any facts which could plausibly give rise to but-for causation.

See Vaughn, 2010 WL 2076926, at *10.

14 Defendant Scarmato allegedly modified Plaintiff’s schedule so that her teaching and preparation

periods were no longer consecutive, thereby forcing her to share her classroom and engage in hall

passing. (Compl. ¶ 36) (“The result was that she had to repeatedly vacate her classroom throughout

the day, rather than just the last two periods of the day.”) At most, this amounts to a trivial

inconvenience commonly endured by teachers at the school. (See ECF No. 14-1 at 61) (noting that

3020-a investigation,15 attacked her pedagogy and work performance,16 denied her request for

medical leave17 and denied her access to school meetings and computers.18 She may not argue

disability retaliation on these grounds.

Accordingly, only one allegation—the December 12, 2016 Incident—could plausibly give

rise to retaliation claims under the ADA, NYSHRL and NYCHRL. Plaintiff may rely on Defendant

such a large school “could not have accommodated a request of no hall passing or not sharing a

classroom”). Accordingly, this could not plausibly constitute a materially adverse action, or even

a negative employment action under the NYCHRL. Clarke v. Pacifica Found., No. 07 CV 4605

FB, 2011 WL 4356085, at *18 (E.D.N.Y. Sept. 16, 2011) (noting that “the NYCHRL is not a

general civility code and that petty slights and trivial inconveniences are still non-actionable under

the law”) (internal quotations and alterations omitted).

15 In June and September of 2017, Plaintiff was served with 3020-a charges. (Compl. ¶ 58–60).

Plaintiff cannot plausibly establish a causal nexus between these charges and the September 2016

Meeting or October 2016 Report. The 3020-a investigation culminated in a fairly and fully litigated

proceeding, during which the hearing officer found ample basis for the charges. (ECF No. 14-1 at

61–65). Even if retaliation were somehow an additional motive, “[i]t is not enough that retaliation

was a ‘substantial’ or ‘motivating’ factor in the employer’s decision.” Vega, 801 F.3d at 90–91.

Absent a showing of close temporal proximity (which does not exist here), Plaintiff must

demonstrate but-for causation. Id. at 90; see also Univ. of Texas Sw. Med. Ctr., 570 U.S. at 339.

16 Plaintiff alleges that, in March or April of 2017, Defendants began “suddenly attacking her

pedagogy and work performance.” (Compl. ¶ 52). However, she does not provide specific accounts

or dates of discrete “attacks.” This threadbare and conclusory allegation cannot support a claim

upon which relief could be granted. See Ashcroft, 556 U.S. at 678. Furthermore, allegations dating

from March 2017 would be too remote to infer any causal nexus with the September 2016 Meeting

or October 2016 Report. See Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85–86 (2d Cir.1990)

(finding a three-month gap too distant to infer causation).

17 On March 22, 2017, Defendants allegedly denied Plaintiff’s request for FMLA leave. (Compl.

¶ 52). Plaintiff does not allege facts which might satisfy the but-for causation requirement, and the

timing is far too remote from the September 2016 Meeting or October 2016 Report to infer a causal

nexus. See Hollander, 895 F.2d at 85–86.

18 Beginning in September 2017, Defendants allegedly refused to let Plaintiff attend school-related

meetings and revoked her computer login credentials. (Compl. ¶ 59–66). The timing is too remote

from the September 2016 Meeting or October 2016 Report to infer a causal nexus based solely on

temporal proximity, and Plaintiff does not allege any facts which could plausibly give rise to but-

for causation. See Hollander, 895 F.2d at 85–86.

Scarmato’s September 9, 2016 request for medical documentation as background to establish a

causal nexus, but it is not itself an allegation of retaliation.

IV. Statute of Limitations (Claims IV, V and VI)

No action may be commenced against the DOE “more than one year after the cause of

action arose.” N.Y. Educ. Law § 3813(2-b). Plaintiff commenced this action on March 12, 2018.

Accordingly, all state and city law claims premised solely on incidents prior to March 12, 2017

are time-barred, to the extent brought against the DOE. However, they are not time-barred as to

Defendant Scarmato: while § 3813(2-b) also applies to school officers, “a school principal is not

a school officer, as defined by the Education Law.” Benedith v. Malverne Union Free Sch. Dist.,

38 F. Supp. 3d 286, 312 (E.D.N.Y. 2014) (Spatt, J.).

The December 12, 2016 Incident is the only remaining allegation on which Plaintiff could

rely to prove her discrimination and retaliation claims under the NYSHRL (Claim IV) and

NYCHRL (Claim V). See Parts II and III, supra. Claims IV and V are therefore time-barred as to

Defendant DOE, as is Claim VI for the reasons stated in Part VI, infra.

V. First Amendment Retaliation (Claim III)

The complaint alleges that Defendants retaliated against Plaintiff for engaging in union

activity, thereby violating her First Amendment rights. (Compl. ¶ 82). A public employee alleging

First Amendment retaliation under 42 U.S.C. § 1983 must show that: (1) she engaged in

constitutionally protected speech; (2) she was subjected to an adverse employment action; and

(3) the speech was at least a substantial or motivating factor in the adverse employment action.

Morrison v. Johnson, 429 F.3d 48 (2d Cir. 2005).

Defendants move to dismiss this claim on the basis that Plaintiff’s union activity was not

constitutionally protected speech. (Def’s. Mem. 17). “[W]hile the First Amendment invests public

employees with certain rights, it does not empower them to constitutionalize [their] employee

grievance[s].” Garcetti v. Ceballos, 547 U.S. 410, 420 (2006). Accordingly, a public employee’s

speech is protected only to the extent that it regards matters of actual public concern. See

Weintraub v. Bd. of Educ. of City Sch. Dist. of City of New York, 593 F.3d 196, 201 (2d Cir. 2010)

(affirming this principle in the context of union grievances by public school teachers).

Most of the union activity described in the complaint cannot be characterized as

constitutionally protected speech. For instance, on October 6, 2015, Plaintiff filed a grievance

regarding a violation of teachers’ contractually-mandated professional administrative period.

(Compl. ¶ 26). On October 7, 2015, she filed a grievance regarding the school’s creation of an

administration position that violated the union’s contract. (Id. ¶ 27). On November 13, 2015, she

filed a grievance against the administration regarding an arrangement that resulted in certain

teachers allegedly having to work before their collectively bargained work hours. (Id. ¶ 28). These

are internal employer/employee disputes, not matters of public concern.

On February 28, 2017, Plaintiff filed a report with a city watchdog agency alleging

attendance manipulation, grade changing, and credit manipulation by the school administration

(“February 2017 Report”). (Id. ¶ 51). The public entrusts the city’s schools with the education of

its children, and thus has an overwhelming interest in whether those schools are honest in their

reporting of attendance, student performance, and financial data. The February 2017 Report is

therefore constitutionally protected speech.

However, Plaintiff fails to plausibly allege that she experienced an adverse employment

action motivated by her filing of this grievance. In the First Amendment retaliation context, “[o]nly

retaliatory conduct that would deter a similarly situated individual of ordinary firmness from

exercising his or her constitutional rights constitutes an adverse action.” Zelnik v. Fashion Inst. of

Tech., 464 F.3d 217, 225 (2d Cir. 2006) (internal quotation marks omitted). None of the allegations

described in the complaint as occurring after February 28, 2017 satisfy this high bar. Consider, for

instance, Defendants’ refusal to grant her request for FMLA leave. (Compl. ¶¶ 50, 52). The FMLA

provides its own statutory remedies for leave requests which are wrongly denied. 29 U.S.C.

§ 2615. A person of ordinary firmness would be expected to exercise those remedies, rather than

be chilled from exercising her free speech rights. Furthermore, allegations that Defendants began

“suddenly attacking her pedagogy and work performance” (Compl. ¶¶ 53) are too threadbare and

conclusory to be given any weight. See note 19, supra. All other allegations of retaliation are too

remote in time to warrant any inference of causation, and Plaintiff “provides no direct evidence of

this otherwise missing link to maintain her claim.” Ren Yuan Deng v. New York State Office of

Mental Health, No. 13 Civ. 6801(ALC), 2015 WL 221046, at *15 (S.D.N.Y. Jan. 15, 2015).

Claim III, for First Amendment retaliation, is therefore dismissed.

VI. New York Civil Service Law § 75-b Retaliation (Claim VI)

Plaintiff alleges that Defendants violated NYCSL § 75-b by retaliating against her for filing

the October 2016 and February 2017 Reports. (Compl. ¶¶ 98–102). That law provides, in relevant

part:

A public employer shall not dismiss or take other disciplinary or other adverse

personnel action against a public employee regarding the employee’s employment

because the employee discloses to a governmental body information: (i) regarding

a violation of a law, rule or regulation which violation creates and presents a

substantial and specific danger to the public health or safety; or (ii) which the

employee reasonably believes to be true and reasonably believes constitutes an

improper governmental action.

N.Y. Civ. Serv. Law § 75-b(2).

Accordingly, in order to state a claim under § 75–b, the plaintiff must allege: (1) an

adverse personnel action; (2) the disclosure of applicable information to a governmental body; and

(3) a causal connection between the disclosure and the adverse personnel action. See Portelos v.

City of New York, No. 12-CV-3141(RRM)(VMS), 2013 WL 789460, at *2 (E.D.N.Y. Mar. 1,

2013); Burns v. Cook, 458 F. Supp. 2d 29, 44 (N.D.N.Y. 2006). A “personnel action” is one which

affects the plaintiff’s “compensation, appointment, promotion, transfer, assignment, reassignment,

reinstatement or evaluation of performance.” N.Y. Civ. Serv. Law § 75-b(1)(d).

As an initial matter, “claims under § 75-b cannot be maintained against individual public

employees.” Eyshinskiy v. New York City Dep’t of Educ., No. 15 CIV. 10027 (DLC), 2016 WL

7017414, at *2 (S.D.N.Y. Dec. 1, 2016), aff’d sub nom. Eyshinskiy v. Kendall, 692 F. App’x 677

(2d Cir. 2017). Claim VI is therefore dismissed as to Defendant Scarmato.

Furthermore, any state and city law claims against the DOE are time-barred if premised on

retaliatory acts occurring prior to March 12, 2017. See Part IV, supra. Two of the allegations

occurring after March 12, 2017—Defendants’ denial of FMLA leave and attacks on her pedagogy

and work performance—cannot plausibly be construed as adverse personnel actions.19 (See Compl.

¶¶ 52, 53). The remaining allegations, which date from June 23 through November 17, 2017, are

too remote in time to infer a causal relationship with the October 2016 or February 2017 Reports.

(Id. ¶¶ 58–61, 64). Accordingly, Claim VI is also dismissed as to Defendant DOE, and therefore

in its entirety.

19 Plaintiff insists that she “clearly suffered an adverse personnel action, as she faced an

increasingly hostile work environment from [the] school administration after years of consistently

positive evaluations and praise.” (Pl’s Opp’n 18). This argument overlooks the narrow definition

of “adverse personnel action” set forth in the statute: an act which affects Plaintiff’s

“compensation, appointment, promotion, transfer, assignment, reassignment, reinstatement or

evaluation of performance.” N.Y. Civ. Serv. Law § 75–b(1)(d). Defendants’ alleged denial of

FMLA leave (Compl. ¶ 52) does not fall into this category. Nor does the allegation that Defendants

began “suddenly attacking [Plaintiff’s] pedagogy and work performance.” (Id. ¶ 53). Even if such

attacks could be construed as formal “evaluations,” Plaintiff’s allegation is too vague and

conclusory to be afforded any weight. See Ashcroft, 556 U.S. at 678.

VII. Intentional Infliction of Emotional Distress (Claim VII)

Claim VII alleges intentional infliction of emotional distress, presumably under New York

law. (Id. ¶¶ 98–102). To prevail on such a claim, Plaintiff “must plead four elements: (1) extreme

and outrageous conduct; (2) intent to cause severe emotional distress; (3) a causal connection

between the conduct and the injury; and (4) severe emotional distress.” Bender v. City of New

York, 78 F.3d 787, 790 (2d Cir.1996) (citing Howell v. N.Y. Post Co., 81 N.Y.2d 115, 121, 612

N.E.2d 699 (1993)). This is a very strict pleading standard. Ahmed v. Gelfand, 160 F. Supp. 2d

408, 416 (E.D.N.Y. 2001). Liability is found only for conduct “so outrageous in character and so

extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious,

and utterly intolerable in a civilized community.” Bender, 78 F.3d at 790–91.

The complaint alleges nothing of the sort. Instead, it asserts that “Defendants engaged in

extreme and outrageous conduct with intent to cause severe emotional distress.” (Compl. ¶ 99).

Plaintiff concedes that this fails to meet the “high standard” for pleading an IIED claim.

(Pl’s Opp’n 19). Nonetheless, she “respectfully requests that [the IIED] claim be deferred for

factual development in this matter.” (Id.). Entertaining such a request would be incompatible with

Rule 12(b)(6). In deciding a motion to dismiss, the Court cannot accept such “[t]hreadbare recitals

of the elements of a cause of action, supported by mere conclusory statements.” Ashcroft, 556 U.S.

at 678. Claim VII is therefore dismissed.

VIII. Hostile Work Environment (Unpled Claims)

The complaint does not assert a discrete claim for hostile work environment. However,

Plaintiff asks this Court to construe the complaint as alleging hostile work environment claims

under the ADA, NYSHRL and NYCHRL. (Pl’s Opp’n 14). Such “unpled” claims may survive

12(b)(6) scrutiny if Plaintiff alleges the requisite facts in the complaint. See Lebowitz v. New York

City Dep’t of Educ., 407 F. Supp. 3d 158, 181 (E.D.N.Y. 2017).

The elements of a hostile work environment claim are identical under the ADA and

NYSHRL. Lebowitz, 407 F. Supp. 3d at 181. The plaintiff must show that the workplace is

“permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive working

environment.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014).

The standard is more permissive under the NYCHRL. The plaintiff need not show that the conduct

was “severe or pervasive,” only that she “has been treated less well than other employees because

of [her disability].” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d Cir.

2013).

The complaint does not allege facts showing that Defendants and others at the school

repeatedly permeated her workplace with severe and pervasive intimidation, ridicule and insult.

Nor does it satisfy the more permissive NYCHRL pleading standard. Read in the most favorable

light, the complaint plausibly alleges that Plaintiff was treated less well than other employees (see,

e.g., Compl. ¶¶ 36, 52, 61, 63 64, 65), but not “because of” her disability. See Mihalik, 715 F.3d

at 110. Indeed, Plaintiff clarifies her theory of hostile work environment in her opposition

memorandum: that the school administration “engaged in a campaign to make her life miserable

after she became chapter leader with a series of hostile actions against her[.]” (Pl’s Opp’n 14).

Taken at face value, Plaintiff does not believe she was treated less well because of her disability,

but rather because of her activities as union chapter leader.

Accordingly, the complaint fails to state hostile work environment claims under the ADA,

NYSHRL or NYCHRL for which relief could be granted. These unpled claims are therefore

dismissed.

IX. Notice of Claim Requirements (Claims IV–VII)

Defendants move to dismiss any remaining state and city law claims, for failure to comply

with notice of claim requirements. (Def’s. Mem. 21). N.Y. Educ. Law § 3813(1) requires that

plaintiffs file a notice of claim prior to any action against a school district or its officers, to be

presented within three months of the date when the claim arose. Section 3813(2) of the same

requires the filing of a notice of claim prior to a tort action against the city or its employees, to be

presented within ninety days of the date when the claim arose. The plaintiff must allow thirty days

to elapse after the notice is filed before filing a complaint, and show that in that time period the

defendant has either neglected or refused to satisfy the claim. N.Y. Educ. Law §§ 3813(1), (2).

These requirements are “construed strictly,” and so “failure to abide by their terms mandates

dismissal of the action.” Smith v. New York City Dep’t of Educ., 808 F. Supp. 2d 569, 578

(S.D.N.Y. 2011).

The only remaining state and city law claims are for failure to accommodate and retaliation

under the NYSHRL (Claim IV) and NYCHRL (Claim V). They remain only as to Defendant

Scarmato, and may only be premised on the December 12, 2016 Incident. See Parts II, III and IV,

supra.

Plaintiff’s notice of claim does not comply with § 3813(1) or § 3813(2). It was filed on

February 26, 2018 (ECF No. 14-2), more than a year after the December 12, 2016 Incident, and

over one hundred days after the last allegation contained in the complaint. (See Compl. ¶ 64). It

references claims under the ADA, N.Y. Civ. Serv. Law § 75-b, and 42 U.S.C. § 1983, but makes

no mention of claims under the NYSHRL or NYCHRL. (ECF No. 14-2). Furthermore, Plaintiff

filed her complaint in this Court on March 18, 2018, before the requisite thirty day waiting period

had elapsed.

Given these deficiencies, it might therefore appear that all remaining state and city law

claims should be dismissed. However, a notice of claim is not required to bring a NYSHRL or

NYCHRL cause of action against a school principal. N.Y. Educ. Law § 3813(2) is narrower than

§ 3813(1) “in that it only applies to claims founded upon tort,” but it is broader than § 3813(2) “in

that it is not limited to claims against school districts and their officers.” United States v. New York

City Dep’t of Educ., No. 16-CV-4291 (LAK), 2017 WL 1319695, at *1 (S.D.N.Y. Apr. 4, 2017).

Claims IV and V against Defendant Scarmato fall outside the scope of these imperfectly

overlapping statutes, and are therefore not subject to notice of claim requirements.

Claims IV and V against the DOE, dismissed on other grounds in Part IV, supra, are

dismissed in the alternative for failure to comply with notice of claim requirements.20 They fall

within the scope of § 3813(1), which applies to all claims against a school district or its officers.

20 Courts in the Second Circuit are divided on whether a notice of claim is required for Human

Rights Law claims against the DOE. Compare Caputo v. Copiague Union Free Sch. Dist., 218 F.

Supp. 3d 186, 193 (E.D.N.Y. 2016) (Hurley, J.) (“A notice of claim for a NYSHRL claim against

a school district or its personnel is not required.”) (emphasis added) with New York City Dep’t of

Educ., 2017 WL 1319695, at *2 (Kaplan, J.) (“[E]ven if NYSHRL claims do not require a notice

of claim under [§ 3813(2), this] . . . has no bearing on whether the same is true of [§ 3813(1)].

Thus, I respectfully disagree with Caputo.”). This split arises from conflicting readings of the New

York Court of Appeals’ decision in Margerum v. City of Buffalo, 24 N.Y.3d 721 (2015). However,

a close reading of Margerum and § 3813 confirms Judge Kaplan’s interpretation. Margerum stands

for the proposition that human rights law claims are not “founded upon tort,” and therefore are not

governed by the notice of claim requirements set forth in § 3813(2). Margerum, 24 N.Y.3d at 730.

Caputo overgeneralizes the holding in Margerum, to say that claims under the NYSHRL and

NYCHRL are not subject to any notice of claim requirements, including those found in § 3813(1).

Caputo, 218 F. Supp. at 193.

Also dismissed in the alternative are Plaintiff’s claims for retaliation under NYCSL § 75-b

(Claim VI) and for intentional infliction of emotional distress (Claim VII). These are tort claims,

and are therefore covered by § 3813(2). See Griffin v. City of New York, 880 F. Supp. 2d 384, 406

(E.D.N.Y. 2012).

CONCLUSION

Defendants’ motion to dismiss is DENIED as to Defendant DOE with respect to Claims I

and II,21 and as to Defendant Scarmato with respect to Claims IV and V. The motion is GRANTED

with respect to all other claims.22 Plaintiff may only rely on the December 12, 2016 Incident as the

basis for the remaining claims.

SO ORDERED.

Dated: Brooklyn, New York

May 20, 2020

/s/

I. Leo Glasser U.S.D.J.

21 Claims I and II were brought against Defendant DOE only. (Compl. ¶¶ 67–80). All other claims

were brought against both Defendants. (Id. ¶¶ 81–102).

22 Plaintiff requests permission to amend her complaint upon the Court granting any portion of

Defendants’ motion to dismiss. (Pl’s Opp’n 20). The Court makes no determination at this time as

to whether leave to amend would be proper. A request to amend should be made by motion

pursuant to Fed. R. Civ. P. 15, with the proposed amendment attached. See State Trading Corp. of

India Ltd. v. Assuranceforeningen Skuld, 921 F.2d 409, 418 (2d Cir.1990) (imputing a lack of good

faith to plaintiff in part because plaintiff “did not file a proposed amended complaint” when it

sought leave to amend); Gulley v. Dzurenda, 264 F.R.D. 34, 36 (D. Conn. 2010) (“To obtain leave

of court to amend the complaint, a party should file both a Rule 15 motion and a proposed

amendment or new pleading.”).