Leake v. Garden City Union Free School District Board of Education

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------x

JON LEAKE,

MEMORANDUM AND ORDER

Plaintiff, 23-CV-4243 (RPK) (JMW)

v.

GARDEN CITY UNION FREE SCHOOL

DISTRICT BOARD OF EDUCATION,

Defendant.

---------------------------------------------------------x

RACHEL P. KOVNER, United States District Judge:

Plaintiff Jon Leake brings this action against his employer, defendant Garden City Union

Free School District Board of Education (“the school district”), alleging disability discrimination

in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and

disability discrimination and retaliation in violation of the New York State Human Rights Law

(“NYSHRL”), N.Y. Exec. Law § 290 et seq. The school district has moved to dismiss the

complaint. For the reasons set forth below, plaintiff’s ADA claim is dismissed because it fails to

state a claim, and plaintiff’s NYSHRL claims are dismissed without prejudice with leave to refile

in state court.

BACKGROUND

The following facts are drawn from the amended complaint and are assumed true for the

purposes of this order.

Plaintiff began working as a physical education teacher and athletic coach for the school

district in 1998. Am. Compl. ¶ 10 (Dkt. #15).

In June 2013, plaintiff testified on behalf of another teacher who brought a sexual

harassment and gender discrimination case against Linda Norton, a principal in the school district.

Id. ¶ 14. In August 2013, plaintiff’s principal, Eileen Vota, retaliated against plaintiff for his

participation in the lawsuit. Id. ¶ 16. Soon afterward, plaintiff “was diagnosed with acute panic

disorder with anxiety and agitation.” Id. ¶ 17. In November 2013, plaintiff filed a charge of

discrimination with the Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 18. After

the EEOC provided plaintiff him with a right-to-sue letter, plaintiff filed a lawsuit in federal court

but voluntarily dismissed the action a few months later. Id. ¶¶ 18, 21.

In June 2014, the school district required plaintiff to undergo a psychiatric evaluation. Id.

¶ 19. The psychiatrist who completed the evaluation “did not disagree” that plaintiff “suffered

from acute panic disorder with anxiety and agitation.” Ibid. The psychiatrist also recommended

a “change in schools [with a] new administration and principal to reduce perceived harassment,

stress, and anxiety related symptoms.” Ibid. In August 2014, plaintiff requested a transfer out of

the Stewart School, but the school district denied that request. Id. ¶ 20.

By August 2021, plaintiff was no longer teaching at the Stewart School and was instead

teaching at the Hemlock School and the Locust School. Id. ¶ 24. That same month, Ms. Vota was

“assigned to the Locust School as the new [p]rincipal.” Id. ¶ 25.

In September 2021, Audrey Bellovin, the principal of the Hemlock School, told plaintiff

that “she was going to be the Administrator who gets him fired.” Id. ¶ 26. “Soon after,” the school

district “began taking adverse action against [plaintiff]” during the 2021–22 school year. Id. ¶ 29.

Specifically, plaintiff alleges that:

• He “received his first unsatisfactory [t]eacher’s observation,” id. ¶ 30;

• Ms. Bellovin “enter[ed] [plaintiff’s] classroom on several days, sometimes 7 to 10 times a

day, holding a clipboard and taking notes” because “she knew [plaintiff] suffered from

acute panic disorder with anxiety and agitation” and wanted “to trigger a panic attack,” id.

¶ 31;

• Ms. Bellovin “question[ed] [plaintiff] when he left the building during a break,” id. ¶ 32,

told him that he could not “leave the building after his last class to go coach a [d]istrict

sport,” id. ¶ 37, or “during his prep time,” id. ¶ 38, even though other teachers were not

subjected to the same restrictions, id. ¶¶ 32, 37, 38;

• Ms. Bellovin “submitted a counseling letter to [plaintiff] referring to complaints made by

parents of students in his classroom,” even though the complaints “were without factual

basis,” id. ¶ 33; and

• Ms. Bellovin “videotap[ed] [plaintiff] with her cellphone” and told him “she had been

watching him the whole school year,” id. ¶ 35.

In February 2022, plaintiff told Nanine Mclaughlin, an assistant superintendent, that he

intended to file an ADA claim. Id. ¶ 34. Ms. Mclaughlin told plaintiff “not to file and that she

would transfer him at the end of the year,” but she did not do so. Ibid.

In August 2022, plaintiff requested a transfer as “a reasonable accommodation pursuant to

the ADA.” Id. ¶ 39. His neurologist “prepared an ADA Physician Questionnaire in support of

[plaintiff’s] request,” which “informed the [d]istrict that [plaintiff] was suffering from marked

anxiety, panic attacks and feelings of persecution.” Id. ¶ 40. Ms. Mclaughlin denied plaintiff’s

transfer request. Id. ¶ 41.

In October 2022, the school district fired plaintiff from coaching the eighth-grade

volleyball team, “which he had coached for many years.” Id. ¶ 42. The school district’s athletic

director told plaintiff he was fired for “[b]ad attendance.” Ibid. Plaintiff told the athletic director

“that the majority of his absences were a direct result of his disabilities” and “that even though he

missed part of the day, he was able to fulfill his coaching responsibilities.” Ibid.

Plaintiff filed a complaint with the EEOC, which provided him with a right-to-sue letter.

Id. ¶¶ 43–44. Plaintiff then filed this lawsuit. Id. ¶ 44.

The school district sought a pre-motion conference in anticipation of filing a motion to

dismiss the complaint. See Def.’s July, 7, 2023, Letter (Dkt. #9). At the conference, plaintiff

requested leave to amend his complaint to address the deficiencies identified in the school district’s

letter. See July 25, 2023, Conf. Audio Recording 7:06. After leave was granted, plaintiff filed the

operative amended complaint. See Am. Compl.

The amended complaint alleges that (i) the school district violated the ADA by denying

him a reasonable accommodation for his disability and subjecting him to other adverse

employment actions because of his disability, id. ¶¶ 48–59, and (ii) the school district violated the

NYSHRL by denying him a reasonable accommodation for his disability and retaliating against

him for testifying against Ms. Norton, id. ¶¶ 60–68. The amended complaint does not include a

claim for retaliation under the ADA. See generally id.

The school district has moved to dismiss the amended complaint. See Mot. to Dismiss

(Dkt. #22). It argues that (i) plaintiff has failed to state a failure-to-accommodate claim or any

other disability discrimination claim under the ADA, and (ii) plaintiff has failed to state a

discrimination or retaliation claim under the NYSHRL. See id. at 5–17. In response, plaintiff

argues that he has adequately stated an ADA claim under theories other than a failure to

accommodate, but he does not defend his failure-to-accommodate claim. See generally Pl.’s

Opp’n (Dkt. #23).

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits a defendant to move to dismiss a

complaint for “failure to state a claim upon which relief can be granted.” To avoid dismissal on

that basis, a complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). “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.” Ibid. (discussing Fed. R. Civ. P. 8). The facial “plausibility standard is not akin to a

probability requirement,” but it requires a plaintiff to allege sufficient facts to allow “the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ibid.

(quotation marks omitted) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556–57 (2007)). “A

well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof [of the facts

alleged] is improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S. at

556 (quotation marks omitted).

DISCUSSION

The school district’s motion to dismiss plaintiff’s ADA claims is granted. And because

plaintiff’s federal law claims are dismissed, I decline to exercise supplemental jurisdiction over

plaintiff’s state law claims.

I. Plaintiff’s ADA Claims Are Dismissed.

Plaintiff has failed to adequately plead a claim that the school district discriminated against

him based on his disability, and he has abandoned any claim that the school district failed to

accommodate his disability in violation of the ADA.

A. Plaintiff has failed to plausibly allege that the school district discriminated against

him because of his disability.

Plaintiff has failed to adequately plead a claim for disability discrimination under the ADA

because he has not plausibly alleged that the school district discriminated against him because of

his disability. “To state a claim for discrimination under the ADA, a plaintiff must allege facts

which plausibly suggest, inter alia, that [he] ‘suffered adverse employment action because of his

disability.” Giambattista v. Am. Airlines, Inc., 584 F. App’x 23, 25 (2d Cir. 2014) (alterations

omitted) (quoting Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001)). In other

words, a plaintiff must allege “some minimal evidence supporting an inference that [his] employer

acted with discriminatory motivation.” Dawson v. N.Y.C. Transit Auth., 624 F. App’x 763, 766

(2d Cir. 2015).

Here, plaintiff does not set forth any facts supporting the inference that the employer

actions of which he complains were because of his disability. Plaintiff alleges, for instance, that

the school district required him “to be supervised by [Ms.] Vota” after it assigned her to be the

principal of the Locust School. Am. Compl. ¶ 28; see Pl.’s Opp’n 7. Even assuming Ms. Vota’s

assignment constitutes an adverse employment action, nothing in the amended complaint indicates

that the school district took that action because of plaintiff, let alone because of plaintiff’s

disability. See generally Am. Compl. Plaintiff also alleges that he received an “unsatisfactory

[t]eacher’s observation.” Id. ¶ 30; see Pl.’s Opp’n 7. But, once again, nothing in the amended

complaint indicates that plaintiff received the unsatisfactory observation because of his disability.

Am. Compl. ¶ 30. Indeed, the amended complaint provides no further detail on the topic, other

than the fact that plaintiff had never before received an unsatisfactory observation. See ibid.; see

also, e.g., Berkery v. Archdiocese of Hartford, 352 F. App’x 487, 490 (2d Cir. 2009) (affirming

dismissal of ADA claim where plaintiff “pleaded no facts” that “link[ed] the [defendant’s] decision

to his disability or support an inference of disability discrimination”); Lucas v. Apple Food Serv.

of N.Y., LLC, No. 15-CV-4007 (SJF) (AKT), 2015 WL 6507495, at *3 (E.D.N.Y. Oct. 27, 2015)

(dismissing ADA claim where “the complaint fail[ed] to plead any facts linking defendant’s

conduct . . . to plaintiff’s . . . pregnancy” and collecting similar cases).

Similarly, plaintiff has failed to plausibly allege that the school district was motivated by

plaintiff’s disability in removing plaintiff from his position as coach of the eighth-grade volleyball

team. Plaintiff does not suggest that the school district or its employees made any statements

linking the removal to plaintiff’s disability. To the contrary, plaintiff alleges that the school

district’s athletic director explained that the firing was a result of “[b]ad attendance,” Am. Compl.

¶ 42. And plaintiff does not dispute that he did in fact have absences from his position. See ibid.

While plaintiff himself alleges that he previously received awards for his coaching, and that “he

was able to fulfill his coaching duties” notwithstanding his absences, ibid., those facts do not raise

an inference that the school district’s actual motivation for firing plaintiff was his disability, rather

than his attendance. Nor could plaintiff’s statements after his removal informing the athletic

director that plaintiff’s absences were linked to disability support an inference that the school

district was motivated by plaintiff’s disability in removing him from his position. See Clarke v.

White Plains Hosp., 650 F. App’x 73, 75 (2d Cir. 2016) (holding that a plaintiff who failed “to

allege that [her employer] knew that [her] absences were due to her back injury” and alleged “only

that she attempted, after [her employer] had decided to terminate her employment, to explain that

these absences should not have been considered unexcused,” had “provided no basis to infer any

causal connection between that knowledge and her termination”).

Plaintiff also fails to plead any facts supporting the inference that any of the other adverse

actions he complains of were motivated by discriminatory animus. He alleges that Ms. Bellovin

threatened to fire him, frequently entered his classroom with a clipboard in order to “trigger a panic

attack,” prohibited him from leaving the school building during breaks and after classes when other

teachers were allowed to do so, videotaped him on her cellphone, and “submitted a counseling

letter to [him].” Am. Compl. ¶¶ 31–33, 37–38; see Pl.’s Opp’n 10. And he asserts that Ms.

Bellovin’s conduct, in combination with the actions described above, created a hostile work

environment. See Am. Compl. ¶ 55; see also Pl.’s Opp’n 10. Assuming those actions amounted

to a hostile work environment, the amended complaint is devoid of any facts linking them to his

disability. See generally Am. Compl; see also, e.g., Zabar v. N.Y.C. Dep’t of Educ., No. 18-CV-

6657 (PGG), 2020 WL 2423450, at *6 (S.D.N.Y. May 12, 2020) (dismissing ADA hostile-work-

environment claim where the complaint provided only “a chronology of alleged adverse actions”

without any “facts linking [p]laintiff’s disability to the alleged adverse actions”). In sum, plaintiff

has failed to allege that he suffered any adverse employment actions because of his disability.

Finally, plaintiff cannot avoid dismissal of his ADA claim by advancing a retaliation

theory. The amended complaint contends that the school district violated the ADA only by failing

to provide him with a reasonable accommodation and subjecting him to other adverse actions

because of his disability. See Am. Compl. ¶¶ 48–59. While plaintiff also raises a claim for

retaliation in his amended complaint, that claim is brought only under the NYSHRL. See id. ¶¶ 60–

64. Accordingly, plaintiff cannot avoid dismissal of his ADA claim based on the theory that the

school district retaliated against him for engaging in activity that is protected under the ADA. See

Mathie v. Goord, 267 F. App’x 13, 14 (2d Cir. 2008) (affirming district court’s decision not to

consider new claims raised in opposition to a motion to dismiss).

B. Plaintiff’s failure-to-accommodate claim is dismissed as abandoned.

Though “[t]he ADA . . . require[s] an employer to afford reasonable accommodation of an

employee’s known disability,” Noll v. Int’l Bus. Machs. Corp., 787 F.3d 89, 94 (2d Cir. 2015),

plaintiff has abandoned any claim that the school district failed to do so when it denied his transfer

request. A federal court may deem a claim abandoned when a defendant moves to dismiss that

claim and the plaintiff fails to address in his opposition papers the defendant’s arguments for

dismissal. See, e.g., Malik v. City of New York, 841 F. App’x 281, 284 (2d Cir. 2021); Laface v.

E. Suffolk Boces, 349 F. Supp. 3d 126, 161 (E.D.N.Y. 2018); DoubleLine Cap. LP v. Odebrecht

Fin., Ltd., 323 F. Supp. 3d 393, 449 (S.D.N.Y. 2018). That standard is met here. Plaintiff’s

opposition does not address the school district’s contention that plaintiff has not sufficiently

alleged a failure-to-accommodate claim because plaintiff failed to allege that there was any open

position to which he could be transferred. See generally Pl.’s Opp’n. Plaintiff’s failure-to-

accommodate claim is accordingly dismissed as abandoned.

II. I Decline to Exercise Supplemental Jurisdiction Over Plaintiff’s State Law Claims.

Because I have dismissed all the federal claims in this action, I decline to retain jurisdiction

over plaintiff’s state law claims. Under 28 U.S.C. § 1367(c)(3), “a district court may decline to

exercise supplemental jurisdiction if it has dismissed all claims over which it has original

jurisdiction.” Four factors bear on whether it is appropriate to exercise supplemental jurisdiction:

“judicial economy, convenience, fairness, and comity.” Catzin v. Thank You & Good Luck Corp.,

899 F.3d 77, 81 (2d Cir. 2018). As a general matter, where “a plaintiff’s federal claims are

dismissed before trial, the state claims should be dismissed as well.” Brzak v. United Nations, 597

F.3d 107, 113–14 (2d Cir. 2010); see Pension Benefit Guar. Corp. ex rel. St. Vincent Cath. Med.

Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir. 2013). Plaintiff did

not address supplemental jurisdiction in his briefing, let alone provide a persuasive reason to depart

from the usual practice of declining to exercise supplemental jurisdiction once federal claims are

dismissed. Accordingly, I decline to exercise supplemental jurisdiction over plaintiff’s state law

claims.

CONCLUSION

For the foregoing reasons, the school district’s motion to dismiss plaintiff’s ADA claims

is granted. Since plaintiff’s federal law claims are dismissed, the Court will not exercise

supplemental jurisdiction over plaintiff’s state law claims. Plaintiff’s state law claims are therefore

dismissed without prejudice, so that plaintiff may pursue those claims in state court. Because

plaintiff already amended his complaint to address the deficiencies identified in the school

district’s pre-motion conference letter, plaintiff is denied further leave to amend. The Clerk of

Court is respectfully directed to enter judgment and close this case.

SO ORDERED.

/s/ Rachel Kovner

RACHEL P. KOVNER

United States District Judge

Dated: July 1, 2024

Brooklyn, New York