Petition for Writ of Certiorari — Lillie Leon, Petitioner v. New York City Department of Education, et al.

APPENDIX TABLE OF CONTENTS

Summary Order of the Second Circuit

(October 31, 2018) .............................................. la

Decision and Order of the District Court of

New York (September 29, 2017) ........................4a

Decision and Order of the District Court of

New York (April 29, 2014) ...............................24a

App. la

SUMMARY ORDER OF THE SECOND CIRCUIT

(OCTOBER 31, 2018)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

LILLIE LEON,

Plaintiff-Appellant,

um

NEW YORK CITY DEPARTMENT OF EDUCATION, PAULA CUNNINGHAM, in Her Individual

and Official Capacity,

Defendants-Appellees.

17-3567

Appeal from a judgment of the United States District

Court for the Eastern District of New York (Kuntz,

J.).

Before: Robert A. KATZMANN, Chief Judge,

Amalya L. KEARSE, Denny CHIN, Circuit Judges

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the

judgment of the district court is AFFIRMED.

Appellant Lillie Leon, proceeding pro se, appeals

the judgment of the district court granting summary

judgment in favor of the appellees with respect to her

claims under the Age Discrimination in Employment

App. 2a

Act, the Americans with Disabilities Act, and state

and city human rights laws, and her claim of intentional

infliction of emotional distress. We assume the parties'

familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

We review orders granting summary judgment de

novo and focus on whether the district court properly

concluded that there was no genuine dispute as to

any material fact and the moving party was entitled

to judgment as a matter of law. Sotomayor v. City of

New York, 713 F.3d 163, 164 (2d Cir. 2013) (per curiam).

We note that the record does not reflect that

Leon received the usual warning about the nature and

consequences of a summary judgment motion, including

the need to adduce evidence, and not simply reply on

allegations in the complaint, per Vital v. Interfaith

Medical Center, 168 F.3d 615, 620-21 (2d Cir. 1999).

The absence of such a warning is "ordinarily grounds

for reversal." Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir.

1994) (per curiam). Reversal is not warranted, however,

"where the record otherwise makes clear that the

litigant understood the nature and consequences of

summary judgment." Vital, 168 F.3d at 621. Here,

Leon's papers in opposition to summary judgment cited

to Local Rule 56.1, and she included 60 pages of

exhibits. Accordingly, we do not reverse. See Sawyer

v. Am. Fed'n of Gov't Emps., AFL-CIO, 180 F.3d 31,

34-36 (2d Cir. 1999) (upholding summary judgment

despite absence of proper notice where pro se plaintiff

"knew that he was required to produce evidence supporting the issues of material fact that he needed to

preserve for trial").

App. 3a

Here, an independent review of the record and

relevant case law reveals that the district court

properly granted summary judgment. We affirm for

substantially the reasons stated by the district court

in its thorough September 29, 2017 decision.

We have considered all of Leon's arguments and

find them to be without merit. Accordingly, we AFFIRM

the judgment of the district court.

For the Court:

Is! Catherine O'Hagan Wolfe

Clerk of Court

DECISION AND ORDER OF THE

DISTRICT COURT OF NEW YORK

(SEPTEMBER 29, 2017)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

LILLIE LEON,

Plain tiff

THE DEPARTMENT OF EDUCATION, a/icIa

THE CITY SCHOOL DISTRICT OF THE CITY OF

NEW YORK; and PAULA CUNNINGHAM,

in Her Individual and Official Capacities,

Defendants.

10-CV-2725 (WFK) (ARL)

Before: Hon. William F. KUNTZ, II,

United States District Judge:

WILLIAM F. KUNTZ, II, United States District Judge:

On June 15, 2010, Lillie Leon ("Plaintiff') filed

her pro se Complaint in this action, ECF No. 1, which

she subsequently amended on August 13, 2012, after

having obtained legal counsel, ECF No. 39.1 As relevant

1 Plaintiff first obtained representation by March 10, 2011, see

ECF No. 13, and numerous counsel have represented her over

the course of the litigation, see ECF Nos. 17, 19, 56, 64, 67, 68,

App.5a

to the instant motion, the Amended Complaint sets

forth claims under the Age Discrimination in Employment Act ("AIJEA"), 29 U.S.C. §§ 621-34; the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 1120112213; section 296 of the New York State Executive

Law ("NYSHRL"); and section 8-107 of the New York

City Administrative Law ("NYCHRL"); as well as state

common law claims of intentional infliction of emotional

distress and defamation. Am. Compl. ¶11 81-153.

These claims arise out of events that took place while

Plaintiff was employed by the New York City Department of Education ("DOE") and Paula Cunningham,

the Principal of P.S. 117 (together, "Defendants"). See

generally Id. On February 8, 2013, Defendants filed

their fully briefed motion to dismiss the Amended

Complaint, ECF Nos. 48-50, which this Court granted

on April 29, 2014, ECF No. 52. Plaintiff appealed and,

on May 22, 2015, the Second Circuit issued a Summary Order affirming this Court's Order as to Plaintiffs hostile work environment and First Amendment

retaliation claims and all of her claims relating to

alleged conduct that occurred prior to the 2010-11

school year. ECF No. 57. The Second Circuit reversed

and remanded the claims arising from the 2010-11

school year. Id. On February 21, 2017, Defendants

71. By November 2016, in the middle of the briefing schedule

for the instant motion, Plaintiff informed the Court that she

had terminated the attorney representing her at that time and,

accordingly, she sought an extension of time to file her Opposition. ECF No. 72. The Court granted this request, as well as her

subsequent request for an extension of time so that Plaintiff

could obtain new counsel, which was filed December 21, 2016.

ECF No. 74. Plaintiff never secured counsel, however, and ultimately filed her Opposition pro se. See ECF No. 86. The Court

treats Plaintiff as prose for the purposes of this motion.

am

-

filed their fully briefed motion for summary judgment

as to all remaining claims. ECF Nos. 82-87. For the

reasons discussed below, Defendants' motion is

GRANTED.

Background2

Plaintiff, who was eighty years of age at the time

she filed her Amended Complaint, has worked as a

teacher for Defendant DOE since 1978. Am. Compl

¶J 6, 16. The events that gave rise to this litigation

took place before and during the 2010-11 school year,

when Plaintiff was a tenured teacher at P.S. 117 in

2 Under the Local Rules of this Court, parties to a summary

judgment motion are required to each submit a statement of

material facts. E.D.N.Y. R. 56.1(a) & (b). Rather than

reiterating undisputed facts, the nonmoving party is tasked

with responding to each of the facts offered by the moving

party; each fact that is not "specifically controverted" may be

deemed admitted. Id. at 56.1(b) & W. Plaintiff, the nonmoving

party here, submitted a Rule 56.1 statement that does not

conform to the Court's rules and, perhaps more significantly,

does not admit or deny Defendants' facts. The facts within

Defendant's Rule 56.1 statement are therefore deemed admitted. See Gadsen v. Jones Lang Lasalle 4ms., Inc., 210

F.Supp.2d 430, 438 (S.D.N.Y. 2002) (Motley, J.) (noting "Courts

in this circuit have not hesitated to deem admitted the facts in a

movant's Local Civil Rule 56.1 Statement that have not been

controverted by a Local Civil Rule 56.1 statement from the

nonmoving party" and citing cases). "Pro se litigants are 'not

excused from meeting the requirements of Local Rule 56.1." Lee

v. Starwood Hotels & Resorts Worldwide, Inc., 14-CV-5278,

2016 WL 3542454, at *7 (S.D.N.Y. June 22, 2016) (Failla, J.)

(quoting Wall v. One Source Co., 678 F.Supp.2d 170, 178

(S.D.N.Y. 2009) (Freeman, J.)). The Court is mindful of Plaintiff's pro se status, however, and "conduct[ed] its own independent

review of the record" in determining the facts of the case. Hayes

v. County of Sullivan, 853 F.Supp.2d 400, 406 (S.D.N.Y. 2012)

Maras, J.).

App. 7a

Queens, New York. Defs.' Rule 56.1 Statement ("Defs.'

Facts") IT 1-3, 15, ECF No. 83.

P.S. 117 is a two-wing school building: One wing

was recently renovated, and so all of its classrooms

have air conditioning and their own separate bathrooms; the other wing is eighty-three years old, and

its classrooms are not air conditioned. M. TT 19-20.

In general, classroom location at P.S. 117 is organized

by grade "so that students of similar grades are

grouped together within the building." Id. ¶ 19.

Kindergarten and first-grade classrooms are generally

in the new wing of the building. Id. ¶ 20. The prekindergarten classroom—Room 114—presents something of an exception, as it is in the old wing of the

building, so it is not air-conditioned, but it has its

own bathroom. Ic!. ¶ 24. But Room 114 is also "the

largest room in the school," and because prekindergarten students are each allocated a certain

number of square feet of classroom space, and their

classroom is "supposed to have a bathroom," prekindergarten is held in Room 114. Englander Decl.

Ex. F, at 194:20-95:6, ECF No. 85-6.

Ahead of each school year, including the 2010-11

school year, Plaintiff and the other teachers were

permitted to "submit bid sheets listing their top

three choices" in terms of classes they would teach

during the following academic year. Defs.' Facts ¶f 2529. Plaintiff, who is licensed to teach, and has in fact

taught, pre-kindergarten through sixth grade,

Englander Decl. Ex. E, at 12:6-14:12, ECF No. 83-5,

ranked pre-kindergarten first, kindergarten second,

and first grade third, Defs.' Facts ¶J 28-29. Defendant

Cunningham—who, as P.S. 117's principal, makes

teaching assignments based on a number of factors,

App. 8a

including teachers' seniority, preferences, and evaluations—assigned Plaintiff to kindergarten, her second

choice. Id. ¶J 25-30.

Plaintiff had previously expressed a preference

for non-air-conditioned classrooms because she has

allergies, and so her class for the 2010-11 year was

assigned to Room 113 in the old wing of the school—a

room in which Plaintiff had taught in without issue

25-30. Room

on at least one prior occasion. Id.

113, however, did not have a bathroom, "which required

that [Pilaintiff take her students to the bathroom for

the first two weeks of the school year until they

became familiar with the bathroom locations and could

go on their own." Id. ¶ 36; see also Id. 1 37 (noting

kindergarten classrooms are not required to have

bathrooms). Plaintiff did not want to "bathroom"3 her

students, although she testified that she was physically

able to do so. See Englander Decl. Ex. F, at 323:1027:19. But see Am. Compl. ¶11 87-88 (noting Plaintiff

suffered from severe arthritis in her knees that limited

her ability to walk); Defs.' Facts ¶ 64 (noting Plaintiff

had medical accommodations on file for elevator use

and a special parking space). She also protested that

Room 113 was uncleanly and "did not have age

appropriate furniture"—opinions that she also

communicated to the parents of the children in her

class. Defs.' Facts 11 51-57.

Plaintiffs complaints and complaints from her

students' parents, over both the condition of Room

3 "Bathroom" is used as a verb by both parties in this litigation

to describe the task of escorting students to the restroom during

instructional time.

App.9a

113 and Plaintiffs refusal to bathroom the children,

led to the following sequence of events:

•

Plaintiff and her union representative met with

Principal Cunningham and two assistant principals, who proposed Plaintiff move to Room

133, which had a bathroom. Id. ¶ 43.

•

When Plaintiff refused this option because Room

133 is in the new wing and has air conditioning,

Defendant Cunningham "offered to turn off the

air-conditioning" for Plaintiff. Id. ¶J 44-45

•

When Plaintiff nevertheless continued to refuse

to move, Defendant Cunningham told Plaintiff "she could remain in [R]oom 113, and that

she would be required to bathroom her students,

consistent with her job description," which Plaintiff declined to do, ultimately forcing Defendant

Cunningham "to send other staff members to

bathroom [Pilaintiffs students." Ic!. ¶J 45-49.

• Responding to continued concern about

classroom conditions from parents of children

in Plaintiffs class, Defendant Cunningham

moved the class out of Room 113 into Room 133,

which had, inter alia, more modern furnishings.

Id. ¶J 57-59.

• Defendant Cunningham again offered to turn off

the air conditioning, but Plaintiff instead simply

refused to report to that classroom. Id. ¶J 5960,70.

• Plaintiff also refused an assignment to tutor a

small group of students, either in Room 358,

which was not air conditioned and was acces

sible by elevator, or in the cafeteria, which was

App. 10a

on the first floor of the building and thus

accessible without requiring climbing stairs.

Id. IT 73-89.

In sum, Plaintiff refused four different assignments

throughout the 2010-11 school year and, at the end of

the academic year and after a hearing held pursuant

to section 3020-a of the New York State Education

Law, Plaintiff was terminated. Id. 11 90-101.

According to Plaintiff, her assignment to her

second choice of teaching kindergarten (instead of

pre-kindergarten), her initial assignment to teach in

Room 113, her subsequent assignment to teach in Room

133, and her termination at the end of the 2010-11

school year were discriminatory based on age and

disability, as well as retaliatory; Defendants' attempts

to make accommodations for Plaintiffs limitations

and/or disabilities were insufficient; and she sustained

injuries, including emotional distress, from Defendants'

conduct. See generally Pl.'s Opp'n ("Opposition"),

ECF No. 76. Defendants disagree, and move for summary judgment as to all of Plaintiffs remaining

claims. See generally Defs.' Mem. in Supp. Mot. Summ.

J. ("MSJ"), ECF No. 84. The Court now addresses

Defendants' motion.

Legal Standard

Summary judgment is appropriate where "the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law" by citation to materials in

the record, including depositions, affidavits, declarations, and electronically stored information. Fed. B.

Civ. P. 56(a)—(c). Affidavits and declarations, whether

supporting or opposing a summary judgment motion,

App.11a

"must be made on personal knowledge, set out facts

that would be admissible in evidence, and show that

the affiant or declarant is competent to testify on the

matters stated." Id; see also Patterson v. County of

Oneida, 375 F.3d 206, 219 (2d Cir. 2004).

"In determining whether summary judgment is

appropriate, [the] Court will construe the facts in the

light most favorable to the non-moving party and must

resolve all ambiguities and draw all reasonable

inferences against the movant." Brod t'. Omya, Inc.,

653 F.3d 156, 164 (2d Cir. 2011) (citation and internal

quotation marks omitted). The role of the district

court is not to weigh the evidence and determine the

truth of the matter, but rather to answer "the threshold

inquiry of whether there is the need for a trial."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50

(1986). The Court must therefore consider whether

the record could "lead a rational trier of fact to find

for the non-moving party." Lovejoy-Wilson v. NOCO

Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001)

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986)).

If the moving party carries its preliminary burden,

the burden shifts to the non-movant to raise the

existence of "specific facts showing that there is a

genuine issue for trial." Cityspec, Inc. v. Smith, 617

F.Supp.2d 161, 168 (E.D.N.Y. 2009) (Wexler, J.) (quoting Matsushita, 475 U.S. at 586). "The mere existence

of a scintilla of evidence" in support of the nonmovant will not defeat a summary judgment motion.

.Anderson, 477 U.S. at 252. Nor will conclusory statements, devoid of specifics, defeat a properly supported

motion for summary judgment. See Bickerstaff v.

Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999); Scotto

App.12a

it. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather,

the non-moving party must establish the existence of

each element constituting its case. See Celotex Corp.

it. Catrett, 477 U.S. 317, 322-23 (1986) ("[Al complete

failure of proof concerning an essential element of

the non-moving party's case necessarily renders all

other facts immaterial.").

"When considering a dispositive motion made by or

against a pro se litigant, the court is mindful that a

pro se party's pleadings must be 'liberally construed'

in favor of that party and are held to 'less stringent

standards than formal pleadings drafted by lawyers."

Angulo it. Nassau County, 89 F.Supp.3d 541, 548-49

(E.D.N.Y. 2015) (Bianco, J.) (quoting Hughes it. Rowe,

449 U.S. 5, 9 (1980)). "The Second Circuit 'liberally

construe[s] pleadings and briefs submitted by pro se

litigants, reading such submissions to raise the

strongest arguments they suggest." Id. (quoting Bertin

it. United States, 478 F.3d 489, 491 (2d Cir. 2007)).

Notwithstanding this less rigorous standard, "proceeding pro se does not otherwise relieve a litigant of

the usual requirements of summary judgment, and a

pro se party's bald assertions unsupported by evidence[] are insufficient to overcome a motion for

summary judgment." Parkinson it. Goord, 116

F.Supp.2d 390, 393 (W.D.N.Y. 2000) (Larimer, C.J.).

Discussion

I.

Failure to Accommodate Medical Disability Claims

Plaintiff brings claims for failure to accommodate

a medical disability under three separate statutes:

App.13a

the ADA, the NYSHRL, and the NYCHRL.4 See generally Am. Compl. These claims center around her

status "as an 80 year old teacher with an apparent/

obvious disability," which left her with "no other

choice than to initially refuse" her assignment to

teach kindergarten in Room 113 for the 2010-11 year

because it involved bathrooming her students. Opp'n

at 4-5. Plaintiff similarly asserts she was left with

"no other choice than to refuse" her three subsequent

alternative assignments "in order to prevent unnecessary pain, suffering and repeated sickness" and to avoid

other "safety issue[s]." Id. at 5-10. The Court now

addresses the legal merit of these arguments.

The statutes Plaintiff invokes "require an employer

to afford reasonable accommodation of an employee's

known disability unless the accommodation would

4 "A claim of disability discrimination under the NYSHRL is

governed by the same legal standards as govern federal ADA

claims." Morse v. JetBine Airways Corp., 941 F.Supp.2d 274, 292

(E.D.N.Y. 2013) (Matsumoto, J.). Although "the New York City

Council has rejected" complete equivalence between NYCHRL

and NYSHRL claims, New York state and federal statutes

nevertheless establish the "floor below which the City's Human

Rights law cannot fall." Ic?. (internal quotation marks omitted)

(first quoting Loeffler v. Staten Island Univ. Hosp., 582 F.3d

268, 278 (2d Cir. 2009); then quoting N.Y.C. Local Law No. so).

"Because a motion for summary judgment inquires only as to

whether a 'rational factfinder could find in favor of the nonmoving party,' as opposed to what the ceiling of a claim may be,

the court herein applies an identical analysis to plaintiffs ADA,

NYSHRL, and NYCHRL claims." Id. (quoting Graves v. Finch

Pruyn & Co., Inc., 353 F. App'x 558, 560 (2d Cir. 2009)). Although the analysis itself is the same, the Court "consider[s]

separately whether [Plaintiffs NYCHRL] claim is actionable

under the broader New York City standards." Mihalik v. Credit

Agricole Cheuvreux N Am., Inc., 715 Fad 102, 109 (2d Cir.

2013).

App. 14a

impose an undue hardship on the employer." No]] v.

Intl Bus. Machs. Corp., 787 F.3d 89, 94 (2d Cir. 2015).

To prevail on a failure-to-accommodate claim, a plaintiff

must show that: "(i) [she] is a person with a disability

under the meaning of the ADA; (2) an employer covered

by the statute had notice of [her] disability; (3) with

reasonable accommodation, [the employee] could perform the essential functions of the job at issue; and

(4) the employer has refused to make such accommodations." Id. (quotation marks omitted) (quoting

McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583

F.3d 92, 97 (2d Cir. 2009)). Where an "employer has

already taken (or offered) measures to accommodate

the disability, the employer is entitled to summary

judgment if, on the undisputed record, the existing

accommodation is 'plainly reasonable." Id. (quoting

Wernick v. Fed Reserve Bank ofNY, 91 F.3d 379,

385 (2d Cir. 1996)).

An accommodation is reasonable if it "enable[s]

an individual with a disability who is qualified to

perform the essential functions of that position

[or]

to enjoy equal benefits and privileges of employment

as are enjoyed by its other similarly situated employees

without disabilities." 29 C.F.R. § 1630.2(o)(1)(ii), (iii).

Nevertheless, "employers are not required to provide

a perfect accommodation or the very accommodation

most strongly preferred by the employee." No]], 787

F.3d at 95. 'Reasonable accommodation may take many

forms, but it must be effective." Id. The Court finds

there can be no dispute that Defendants provided

reasonable accommodations here.5

.

.

.

5 On the Court's reading of the record, there may have been no

basis for any accommodation whatsoever, notwithstanding the

medical accommodations Plaintiff had on file, because she

App.15a

The uncontested facts show that Defendants made

three separate attempts—on this record, two more than

were necessary—to accommodate Plaintiffs disabilities,

even including those for which Plaintiff did not have

a medical accommodation from Defendant DOE.6 First,

Defendants moved Plaintiffs kindergarten class to

Room 133, which was on the first floor and had a

bathroom and age-appropriate furniture, and turned

off the air-conditioning in that room, see Defs.' Facts

¶1J 19-20, 43-45, 51, 59-65; second, Defendants assigned

Plaintiff to tutor students in Room 358, which was

accessible by elevator and not air conditioned, see Id.

¶J 72, 75, 77; and third, Defendants assigned Plaintiff

to tutor students in the cafeteria, which "was on the

ground floor of the school, such that [Pillaintiff did

not have to traverse stairs to reach it," Id. ¶IJ 84-85.

Plaintiffs objections that the accommodations

Defendants made were not reasonable are unavailing.

Regarding her reassignment to Room 133, Plaintiff

argues turning the air conditioning off was insufficient

because "there is air that comes under the door."

Englander Decl. Ex. F, at 374:2-14. But Plaintiff does

not have a medical accommodation for a non-airconditioned room and, even if she did, the reasonable

accommodation requirement "does not require the

maintained she was physically able to bathroom students.

Englander Deci. Ex. F, at 323:10-27:19. The Court need not

decide this issue because, in any event, Plaintiff cannot prove

the fourth element of a failure-to-accommodate claim.

6 The parties agree that Plaintiff "had accommodations on file

for elevator use and a special parking space," having successfully

submitted medical accommodation requests to Defendant DOE's

Medical Bureau, but did not have a similar accommodation

request for a non-air-conditioned room. Defs.' Facts If If 63-64.

App. 16a

perfect elimination of all disadvantage that may flow

from the disability," Fink v. NYC Dept of Pers., 53

F.3d 565, 567 (2d Cir. 1995), meaning a classroom

that is allegedly drafty is insufficient to render the

accommodation unreasonable. Plaintiffs concerns about

Room 358's fire safety and whether she would be safe

in the event of a fire are only tangentially related to

her claimed medical accommodations and, more to the

point, are unfounded given that the fire department

inspected the room, the school, and the fire safety

plan—at Plaintiffs request—and did not find any

deficiencies. Englander Decl. Ex. F, at 172:5-73:5; 396:

32-99:14. And Plaintiffs determination that the cafeteria was "life-threatening' and not "educationally

sound" is unsupported by the record, and the latter is

unrelated to any of her claimed medical accommodations.7 Id. at 399:22-402:10. There is thus nothing in

the record that contravenes the reasonableness of

any of the accommodations Defendants offered.

Finally, there is no support for Plaintiffs claim

that "Defendants refused to enter into an interactive

process of negotiation" with her. Am. Compl. ¶ 101;

cf 29 C.F.R. § 1630.2(o)(3) ("To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal,

interactive process with the individual with a disability

7 Further, in light of the reasonable accommodations offered to

Plaintiff, any argument that Defendants violated the law by

failing to assign Plaintiff to teach pre-kindergarten (which was

in Room 114—the only room without air conditioning but that

has a bathroom) or first grade (for which teachers are not required to bathroom students) is plainly foreclosed. Cf Noll, 787

F.3d at 95 (clarifying employers are not required to provide "a

perfect accommodation or the very accommodation most

strongly preferred by the employee").

App.17a

in need of the accommodation."). To the contrary,

there is no dispute that Defendants engaged in

numerous discussions with Plaintiff about where and

what Plaintiff would teach and offered Plaintiff multiple

options that would have addressed concerns Plaintiff

raised during those conversations. And after offering

Plaintiff these various accommodations, there certainly

was no need for Defendants to make further efforts

beyond those conversations because "[tihe point of

engaging in an interactive process is to 'discover[ I a

means by which an employee's disability could have

been accommodated." No]], 787 F.3d at 98 (quoting

McBride, 583 F.3d at ioi). Where, as here, the end

the process "is designed to serve

had already been

achieved," no additional process is required. Id.

.

.

.

Applying the above analysis and "construing the

NYCHRL liberally," the Court again finds that

Defendants "engaged in the required 'interactive

process' with [Plaintiff' and "ultimately offered her a

reasonable accommodation." Martinez v. Mount Sinai

Hosp., 670 F. App'x 735, 736 (2d Cir. 2016). This is

because, no matter how generously the Court construes

Plaintiffs claims, she has "fail[ed] to prove the [challenged] conduct is caused at least in part by discriminatory or retaliatory motives." Mihalik, 715 F.3d at

113. In sum, as there is no genuine dispute that

Defendants afforded Plaintiff reasonable accommodations as contemplated by the ADA, the NYSHRL,

and the NYCHRL, the Court finds for Defendants on

these claims.

II. Discrimination and Retaliation Claims

Plaintiff also brings claims for discrimination

and retaliation under the ADA, ADEA, NYSHRL,

App. 18a

and NYCHRL. See generally Am. Compl. Specifically,

she argues her assignment to teach kindergarten for

the 2010-11 school year, her initial classroom reassignment, her subsequent teaching and classroom reassignments, and her ultimate termination represented discrimination and retaliation based on her age and

disabilities. See generally Opp'n. The Court disagrees.

The burden-shifting framework that the Supreme

Court articulated in McDonnell Douglas Corp. v. Green,

41 U.S. 792, 802-04 (1973), governs both discrimination

and retaliation claims brought under the ADA, the

ADEA, and the NYSHRL. See Gorzynski v. JetBlue

Airways Corp., 596 F.3d 93, 106, 110 (2d Cir. 2010)

(discussing discrimination and retaliation claims under

the ADEM; Schiano v. Quality Payroll Sys., Inc., 445

F.3d 597, 609 (2d Cir. 2006) (discussing retaliation

claims under the NYSHRL); Regional Econ. Cnity.

Action Program, Inc. v. City of Middletown, 294 F.3d

35, 48-49 (2d Cir. 2002) (discussing discrimination

claims under the ADA; Lovejoy- Wilson v. NOCO

Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001)

(discussing retaliation claims under the ADA);

Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 (2d

Cir. 2000) (discussing discrimination claims under

the NYSHRL). Under the McDonnell Douglas framework, (1) the plaintiff must first establish a prima

facie case of discrimination; (2) if the plaintiff

successfully does so, "the burden shifts to the defendant

'to articulate some legitimate, nondiscriminatory

reason" for the challenged conduct; and (3) if the

defendant successfully carries its burden, the plaintiff

must "prove by a preponderance of the evidence that

the legitimate reasons offered by the defendant were

not its true reasons, but were a pretext for discrimi-

App. 19a

nation." Tex. Dep't of Cmty. Affairs V. Burdine, 450

U.S. 248, 252-53 (1981).

The Court assumes Plaintiff has succeeded at the

first step.8 Cf Burdine, 450 U.S. at 253 (explaining

burden of making out a prima facie case is "not

onerous"). At the second step, Defendants have

proffered substantial evidence that each of the actions

Plaintiff challenges was "reasonably attributable to

an honest even though partially subjective evaluation"

of the relevant factors such that "no inference of discrimination can be drawn." Byrnie v. Town of

Cromwell, Br!. of Educ., 243 F.3d 93, 105 (2d Cir.

2001). According to Defendants, Plaintiffs initial

assignment to teach kindergarten in Room 113 was

based on P.S. 117's assignment system—which took into

account not just seniority, but also other teachers'

preferences and teaching evaluations—and on Plaintiffs

previously expressed preference to teach in non-airconditioned classrooms. Defs.' Facts ¶J 26, 33•9 As

discussed extensively, supra, Plaintiffs subsequent

reassignments plausibly represented Defendants'

efforts to make reasonable accommodations for the

8 The Court notes that, while there are minor differences in the

requisite showing for a prima fade case of discrimination from

that of retaliation, and that the basis for the discrimination or

retaliation differs across statutes, such distinctions are not

pertinent to the outcome in the instant case.

9 It is perhaps worth pointing out that, for the 2010-11 school

year, four other teachers in addition to Plaintiff requested prekindergarten as their first choice, and Plaintiff had previously

had the opportunity to teach pre-kindergarten on two separate

occasions: once during the 2007-08 school year, and again

during the 2009-10 school year; she taught kindergarten during

the intervening 2008-09 school year. Defs.' Facts 11 11 18, 28.

App.20a

health issues Plaintiff described. To the extent Plaintiff

argues Defendants' decision not to reassign Plaintiff

to teach first grade—a request Plaintiff made after

the school year began—was discriminatory and retaliatory, Defendants explained switching teachers

during the school year would have been disruptive.

Id. ¶ 69. And Defendants explained they terminated

Plaintiff from her position because Plaintiff had

declined to fulfill her job responsibilities for an entire

school year. Id. ¶J 90-91; see also Ic!. 11 95-101

(summarizing decision of from hearing held pursuant

to section 3020-a of the New York State Education

Law, which determined termination was appropriate

because Plaintiff "repeatedly neglected her duties").

For her part, Plaintiff does not offer any evidence

from which a reasonable factfinder could conclude

that these reasons were mere pretext. This failure—

and indeed, her inability to show even that she was

treated less well than other employees at all, let

alone on the basis of her age or disability—defeats

even the claims brought under the NYCHRL, which

applies a less rigorous standard, but still requires

some evidence that Defendants were motivated by

discrimination or retaliation. See Mlhahk, 715 F.3d

at 109. In the absence of any such evidence, the Court

grants summary judgment for Defendants on all

Plaintiffs discrimination and retaliation claims.

App.21a

III. State Law Tort ClaimsiO

Plaintiff also brings claims of intentional infliction

of emotional distress ("lIED") and defamation under

New York law, arising from the incidents discussed

supra that occurred during the 2010-11 school year

and resulted in her termination. Am. Compl. ¶J 14453. The Court turns lastly to these claims, and grants

Defendants' request for summary judgment as to each.

A. Intentional Infliction of Emotional Distress

To prevail on an lIED claim under New York law,

"a plaintiff must establish that there was 'extreme

and outrageous conduct,' that the conduct was undertaken with 'intent to cause or disregard of a substantial probability of causing, severe emotional distress,'

and that the conduct did in fact cause severe emotional distress." Turley v. ISG Lackawanna, Inc., 774

F.3d 140, 157-58 (2d Cir. 2014). Critically, "[a]cts

which merely constitute harassment, disrespectful or

disparate treatment, a hostile environment, humiliating criticism, intimidation, insults or other indignities

fail to sustain a claim of infliction of emotional distress because the conduct alleged is not sufficiently

outrageous." Lydeatte v. Bronx Overall Econ. Dev.

10 Because the Court grants summary judgment on the merits,

it does not consider whether Plaintiffs state law claims, including

those brought pursuant to the NYSHRL and the NYCHRL, are

time-barred because they were first raised in the Amended

Complaint, which was arguably filed outside of the one-year

statute of limitations that applies to claims against Defendant

DOE, or whether they relate back to the date of the original

Complaint because it adequately (particularly in light of Plaintiffs pro so status) sets forth the relevant "conduct, transaction

or occurrence" from which the new claims arise. Slayton v. Am.

Exp. Co., 460 F.3d 215, 228 (2d Cir. 2006).

App.22 a

Corp., 00-CV-5433, 2001 WL 180055, at *2 (S.D.N.Y.

Feb. 22, 2001) (Daniels, J.). The undisputed facts, as

discussed in this opinion, simply do not meet that

very high bar. The Court thus grants summary judgment in favor of Defendants on Plaintiffs flED claim.

B. Defamation

To prevail on a claim of defamation under New

York law, a plaintiff must establish the following

elements: (i) a written or oral defamatory statement

of fact concerning the plaintiff; (2) publication of that

statement to a third party; (3) fault, which here may

be negligence; (4) that the defamatory statement is

false; and (5) special damages or that the statement

was defamatory on its face. E.g., Celle v. Filipino

Reporter Enters. Inc., 209 F. 3d 163, 176 (2d Cu. 2000).

"New York state courts require a plaintiff to state

defamation claims with particularity, setting forth

'the particular words complained of,' though 'their

application to the plaintiff may be stated generally."

Biro v. Condo Nast, 883 F.Supp.2d 441, 456 (S.D.N.Y.

2012) (Oetken, J.).

Having reviewed the record, the Court finds that

Plaintiff has nowhere stated with any degree of specificity the allegedly defamatory statements Defendants made in connection with the 2010-11 school year.

Plaintiffs allegations that Defendants "falsely

accused Plaintiff of insubordination, neglect of duty,

substantial cause rendering Plaintiff unfit to perform

her obligations properly to the service, violations of

by-laws, rules or regulations of the Chancellor, conduct

unbecoming Plaintiffs position or conduct prejudicial

to the good older [sic], efficiency, or discipline of the

service, and incompetence," Am. Compi. ¶ 64, is insuf-

App.23a

ficiently particular. And even considering every single

one of the statements attributed to Defendants, there

is no indication any was ever published to a third

party or that any statement was false. Accordingly,

the Court grants summary judgment in favor of

Defendants on Plaintiffs defamation claim.

Conclusion

One final undisputed fact is that Plaintiff dedicated

over three decades of her life to educating young

children and endeavoring to make a positive difference

in their lives. This Court does not overlook her efforts.

And while the Court regrets that Plaintiff's tenure

ended under contentious and unpleasant circumstances,

there is nevertheless no remedy at law available to

ameliorate those circumstances or their aftereffects.

Defendants' motion for summary judgment is therefore

GRANTED. The Clerk of Court is respectfully directed

to terminate the motion pending at ECF No. 82, and

close the case.

SO ORDERED.

Is! Hon. William F Kuntz II

United States District Judge

Dated: Brooklyn, New York

September 29, 2017

App. 24a

DECISION AND ORDER OF THE

DISTRICT COURT OF NEW YORK

(APRIL 29, 2014)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

LILLIE LEON,

Plain tiff

I?,

THE DEPARTMENT OF EDUCATION, a/k/a

THE CITY SCHOOL DISTRICT OF THE CITY

OF NEW YORK; PAULA CUNNINGHAM, in her

Individual and Official capacities; NERIDA URBAN,

in her Individual and Official capacities;

and HARVEY KATZ, in his Individual and

Official capacities,,

Defendants.

10-CV-2725

Before: William F. KUNTZ, II,

United States District Judge.

WILLIAM F. KUNTZ, II, United States District Judge:

This action arises out of Plaintiffs allegedly

wrongful termination from Public School 117 ("P.S.

117") in 2011. At the time the Amended Complaint was

filed, Plaintiff Lillie Leon was an 80-year-old tenured

teacher. Plaintiff alleged that Defendants, New York

App.25 a

City Department of Education ("DOE"), and three

former and current school officials, violated a number

of federal, state, and municipal laws by discriminating

against her on the basis of her age and disabilities.

Defendants DOE and Paula Cunningham1 now move

to dismiss Plaintiffs Amended Complaint.

Plaintiff has already litigated the cause of her 2011

termination from P.S. 117 in State Court proceedings

(the "State Proceedings"). The State Proceedings concluded that Plaintiff was dismissed for insubordination and neglect of her duties, not because of unlawful

discrimination. Plaintiffs claims, as they relate to her

2011 termination, are collaterally estopped from re-litigation in this Court. Furthermore, Plaintiffs First

Amendment and pre-2010 discrimination claims fail

as matter of law. Finally, this Court declines to exercise supplemental jurisdiction over Plaintiffs municipal code and state-law tort claims in the absence of a

surviving federal cause of action. Accordingly,

Defendants' motion to dismiss is granted in its entirety.

I.

Factual and Procedural Background

The following facts are taken from the Amended

Complaint (Dkt. 39 ("Compl.")). These facts are not

findings of fact by the Court, but rather are assumed

to be true for the purpose of deciding this motion and

are construed in a light most favorable to Plaintiff,

the non-moving party. See Patane it. Clark, 508 F.3d

106, 111 (2d Cir. 2007). The Court also takes judicial

1 Defendants Nerida Urban and Harvey Katz are no longer

employees of the DOE and are therefore not represented by Corporation Counsel. Urban and Katz have not answered or

otherwise responded to the Amended Complaint.

App.26a

notice of court documents relating to Plaintiffs prior

state and federal court actions in order to describe

the procedural posture of this case. See Swiatkowski

v. Citibank, 745 F.Supp.2d 150, 156 (E.D.N.Y. 2010)

(Bianco, J.).

A. Plaintiffs Pre-2010 Allegations

At the time the Amended Complaint ("Compl.")

was filed, Plaintiff was 80 years old and, at all

relevant times, she was employed by the DOE at P.S.

117. (Compl. ¶ 6). Plaintiff had been employed by the

DOE since 1978. (Id. at ¶ 16). Plaintiff suffered from

severe arthritis in her knees that limited her ability

to walk, as well as allergies that limited her ability to

breathe in cold climates. (Id. at Tj 87-88). Plaintiff

provided Defendants medical documentation in May

and June 2008 concerning her disabilities. (Id. at

¶IJ 38, 40).

Plaintiff previously sued the New York City Board

of Education in June 2003, alleging that the DOE

violated the Age Discrimination in Employment Act

("ADEA") by treating younger employees more favorably. (Id. at ¶ 21). That suit settled in Plaintiffs

favor in July 2006. (Ic! at ¶ 23). Plaintiff now alleges

that Defendants began discriminating and retaliating

against her because she filed the federal lawsuit. (Id.

at ¶ 22).

According to Plaintiff, Defendants began a "campaign to force Plaintiff to retire" during the pendency

of the lawsuit and beyond the settlement. (Dkt. 47,

(Plaintiffs Memorandum in Opposition to the Motion

App .2 7a

to Dismiss ("Pl.'s Br.")) at 7).2 This campaign included

inquires as to when Plaintiff would retire in 2005 and

2008, (Compl. ¶J 27, 41); requests that Plaintiff sign

a statement indicating her intended date of

retirement, (id. at 1 28); the use of profanities and

false accusations against Plaintiff, (id. at ¶ 31); and

"a continuous pattern of severe harassment, hostile

working environment, retaliation, humiliation, and

intimidation." (Id. at ¶ 29).

Additionally, Plaintiff alleges that she was denied

her first choice teaching assignments for the 2008-09

and 2010-11 school years, even though her seniority

should have given her priority. (Id. at ¶J 34, 47, 6667). Furthermore, Plaintiff alleges that unfounded

disciplinary letters were placed in bad faith into her

personnel file in April and May 2008, in an effort to

have Plaintiff terminated. (Compl. ¶ 34). Plaintiff

claims that in response to her complaints about the

disciplinary letters, she was given an unsatisfactory

"U'—for the first time in career—in her 2007-08 Annual

Performance Evaluation. (Id. at Tj 35-37). Plaintiff

alleges that she was required to write out long lesson

plans in September 2008, a task not required of tenured

or younger teachers. (Id at 1 43).

Plaintiff alleges that in October 2008, Defendants

placed two "known severely troublesome students" into

her class as part of the alleged campaign to force her

into retirement. (Id. at 1 46). Plaintiff alleges that

later in the 2008-09 school year, she was not provided

proper testing materials, (Id at 1 49), a letter of dedi2 This document is titled "Plaintiffs Memorandum of Law in

Opposition to Defendant's Motion for Summary Judgment," but

in fact opposes the Motion to Dismiss. (See Dkt. 49).

cation to her students was omitted from a Moving-Up

Ceremony program, and her class was excluded from

a field trip to Barnes & Noble. (Id. at 1 51). On

March 17, 2009, Plaintiff filed a charge of discrimination against the school with the Equal Employment

Opportunity Commission ("EEOC"). (Id. at 1 50).

Plaintiff also alleges that similar conduct occurred

during the 2009-10 school year whereby her class was

excluded from a playground equipment ribbon ceremony

and had a field trip canceled. (Id. at ¶J 52, 55).

B. The 2010-11 School Year

Plaintiff brought her initial complaint in this

action on June 15, 2010, alleging the events discussed

above. (Dkt. 1). In 2011, Plaintiff filed the Amended

Complaint alleging that she was subject to further

discrimination by the Defendants during the 2010-11

school year. The Amended Complaint alleged that

"Defendants intensified their retaliation and discrimination of Plaintiff in order to force her to retire or to

terminate her" during the 2010-11 school year. (Pl.'s

Br. at 3); (Compl. ¶ 56). Plaintiffs allegations of discrimination during that school year began with her

assignment to teach twenty-five Kindergarten students

in a classroom without an in-class bathroom ("Room

113"). (Compl. 1 57). This required Plaintiff to "bathroom"3 her students. (Id. at ¶1f 57, 59). Plaintiff also

alleged that Room 113 lacked age-appropriate furniture. (Idat ¶ 63). In Fall 2010, Plaintiff contacted the

parents of her students and raised accusations that

3 "Bathroom" is used as a verb by both parties in this litigation

to describe the task of escorting students to the restroom during

instructional time.

App.29a

the classroom was filthy, lacked an attached bathroom,

and lacked age-appropriate furniture. (Id at ¶ 64).

In response to Plaintiffs conduct, including her

refusal to accept any of the alternative teaching

assignments offered in lieu of teaching Kindergarten

in Room 113, Defendants brought New York Educ.

Law § 3020-a charges against Plaintiff citing eight

"specifications," or charges of misconduct, arising out

of the events of the 2010-11 school year. (Dkt. 48-1

(Decl. of Shakera Khandakar Exhibit A, Opinion and

Award in New York City Dept of Ed v. Leon, SED File

No. 17, 318 (July 15, 2011)) ("Ex. Al at 34.4 Plaintiff

alleges that these proceedings were initiated by

Defendants as part of their continued attempts to

"retaliate, discriminate, harass and intimidate Plaintiff." (Pl.'s Br. at 4 (citing Compl., ¶ 76)).

C. The 3020-a Proceeding

On July 15, 2011 the Hearing Officer in the 3020a proceeding issued the final Opinion and Award. (Ex.

A at i). After three days of evidentiary hearings, the

record was closed, and all events up to May 15, 2011

were considered. (Id at 2). According to the Opinion,

"[bloth parties were represented by counsel and had

a full and fair opportunity to present evidence and

4 The Court considers Defendants' exhibits in deciding the motion

to dismiss because Plaintiff referred to the documents in the

Amended Complaint, the documents are in Plaintiffs possession,

and they are documents that Plaintiff had knowledge of and

relied upon in filing the Amended Complaint. See Chambers v.

Time Warner, Inc., 282 Fad 147, 153 (2d Cir. 2002) (finding

that plaintiffs reliance on a document in drafting a complaint is

the most significant factor for a court to consider in looking

beyond the four corners of the complaint on a motion to dismiss).

App.30a

argument, to engage in the examination and crossexamination of witnesses, and otherwise to support

their respective positions." (Id. at 2).

The 3020-a proceedings charged Plaintiff with

"insubordination, neglect of duty, [and] conduct

unbecoming her position[.]" (Id. at 3). The eight "specifications" against Plaintiff included:

"Specification 3: Beginning on or about September

13-15, 2010, [Plaintiff] refused to 'bathroom' the

students in her assigned Kindergarten class 113, as

directed.

Specification 4: On or about September 12, 2010,

[Plaintiff] contacted parents of kindergarten class

113, without authorization from the Principal,

regarding [Plaintiffs] claims against the school

and told them in sum and substance that classroom

113 was:

Filthy

Without a bathroom

Unsuitable for children

With furniture that was not age appropriate.

Specification 5: Beginning on or about September

13, 2010, [Plaintiff] informed parents around

dismissal time, in sum and substance, that:

I will not take your children to the bathroom.

I am not a babysitter.

Specification 6: Beginning on or about September

20, 2010, [Plaintiff] refused the Principal's directive

that [Plaintiff] teach newly assigned kindergarten

class 133.

App .31 a

Specification 7: On or about November 22, 2010,

[Plaintiff] refused the Principal's directive that

[Plaintiff] conduct a tutoring teaching assignment

called "Circular 6" in room 358.

Specification 8: [Plaintiff] failed to report to her

designated assignment on or about September 20,

2010 through March 11, 2011, as directed."

(Ex. A at 3-4).

The Hearing Officer ultimately concluded that

there was just cause for Plaintiffs termination as she

was insubordinate, neglected her duties, was unfit to

perform her obligations, violated by-laws, rules, or

regulations of the Chancellor, engaged in conduct

unbecoming a teacher, and was incompetent and

inefficient in her service. (Ex. A at 4).

Among the relevant issues decided by the Hearing

Officer were:

Background

• Plaintiff did not request an accommodation for

air conditioning for the 2010-11 school year.

Plaintiff was informed that she would need to

do more than submit a letter to the principal

and that an accommodation request needed to be

made to the Medical Bureau. (Id at io).

Specification 3

•

Plaintiff ignored numerous written and verbal

directives that she was to bathroom her students. (It!. at 26). Plaintiff was in a classroom

without a bathroom because the administration

had attempted to defer to her health concerns

about air conditioners. (Id. at 23). Plaintiff

App .32 a

was physically able to monitor bathrooming and

was aware that this was part of the responsibilities of a kindergarten teacher. (Id. at 24-25).

Specification 4

•

The manner and substance of the messages left

by Plaintiff to her students' parents were

"alarming" and inappropriate because she did

not advise the administration of her issues

before reaching out to the parents. (Id. at 2627). Those actions were "unprofessional and

unbecoming her position and the [DOE] had just

cause for discipline." (Id. at 27).

Specification 6

• Principal Cunningham moved Plaintiff to airconditioned Room 133 because of Plaintiffs

refusal to bathroom students and her contacting

of the students' parents. (Id. at 28-29). Plaintiff

was to blame for being put in Room 133 and

nonetheless refused to provide instruction in

Room 133, ignored directives to report to that

classroom, and engaged in continuing insubordination. (Id. at 29). There were no safety issues

with the classroom justifying Plaintiffs refusal

to teach. (Id. at 29). "Although [Plaintiff] testified that air conditioning made her hoarse and

that she had previously submitted a doctor's

note to the prior principal, she did not apply

for an accommodation for air conditioning from

the Medical Bureau. Although the Principal

initially deferred to [Plaintiff si preference for

the old wing, she was not prohibited from

assigning [Plaintiff] to the new wing. In an

attempt to appease her, Principal Cunningham

App. 33a

offer to turn off the air conditioning in the

room. Even so, [Plaintiff] still refused to teach

in Room 133[.]" (Id. at 29).

Specification 7

•

When Plaintiff was assigned and then refused a

third teaching assignment in Room 358

during the 2010-11 school, "[t]he totality of the

evidence support[ed] the finding that [Plaintiff]

had no reasonable basis for her belief that

assignment to Room 358 posed a threat to her

health or safety." (Id. at 30). Plaintiff was

given three warnings to report to her assignment in Room 358, and her failure to adhere

to those directives constituted insubordination

and warranted discipline. (Id. at 32-33).

Specification 8

• After being deemed fit for duty, Plaintiff was

given the option to teach a tutoring course

("Circular 6") in the cafeteria. (Id at 33). Plaintiff

refused to teach there for "safety" reasons, even

though there was no reasonable imminent harm.

(Id. at 34). Plaintiff was found guilty of failing

to report to any of her designated assignments

between September 20, 2010 and May 11,

2011. (Id. at 35).

Summary

• Overall, Plaintiff attempted to justify her

numerous insubordinate acts by claiming that

there were health and safety reasons excusing

her non-compliance. However, those Plaintiffs

excuses were "unsubstantiated and did not

justify her refusal to bathroom her students,

App.34a

teach in Room 133[j with or without air conditioning, Room 358[,] and the cafeteria because

the assignments posed a threat of physical

harm to her health or safety is not supported

by the evidence." (Id. at 34).

Penalty

• "From the time she did not get her first choice

of Pre-K, the evidence established that Ms. Leon

embarked on a collision course with the Principal and engaged in outright defiance and

refused, not just [once], but disobeyed four teaching assignments. The terms of the assignments

were clearly communicated to her verbally and,

in writing, and she was repeatedly warned that

her failure to perform her duties was insubordinate and could lead to discipline. Her obstinate

behavior remained unchanged despite the warnings and numerous opportunities to correct her

behavior. With each and every assignment,

[Plaintiff] showed no understanding that the

Principal, and not she, was in charge with

respect to teaching assignments, student welfare

and building safety. However, when [Plaintiff]

voiced concerns, the Principal attempted to

give her options to allay her fears which she

consistently rebuffed. At the end of the day,

Ms. Leon was unable to identify a single

classroom in a 53 room building in which she

would be willing to teach other than in the

Pre-K classroom." (Id. at 35).

The Hearing Officer held that termination was

the appropriate penalty under the facts and circumstances, and that the DOE had established that Plaintiff was unfit to continue in her position. (Id. at 36).

App .35 a

Plaintiffs repeated neglect of her duties, persistent

insubordination, and consecutive refusals to perform

her assigned teaching positions became, in effect, a

refusal to work for six months. (Id. at 36).

Following her dismissal, Plaintiff brought a Notice

of Verified Petition in New York Supreme Court, New

York County, initiating an Article 75 proceeding

challenging the holdings of the 3020-a proceedings.

(Dkt. 48-1 (Decl. of Shakera Khandakar Exhibit B,

Lillie Leon's Notice of Verified Petition (Aug. 1,

2011)) ("Ex. B")). Plaintiff (1) argued that the 3020-a

decision was unenforceable because it was issued more

than thirty days beyond the last date of the hearing

(as directed by statute), (2) disagreed with the Hearing

Officer's conclusions, and (3) asserted that the Hearing

Officer was biased against her because of her age. (Dkt.

48-1 (Decl. of Shakera Khandakar Exhibit C, Leon v.

Dep't of Ed of the City of New York, No. 108822/11

(Sup. Ct. N.Y. Cnty. Apr. 12, 2012) (Huff, J.)) ("Ex.

C") at 2-3).

DOE moved to dismiss the petition. (Id. at 3).

After reviewing the Hearing Officer's findings and

determining that the "penalty [was] not shocking to

one's sense of fairness," the Article 75 court granted

the motion holding that Petitioner had "failed to

demonstrate that the [3020-a proceeding] should be

overturned." (Id. at 3).

D. The Motion to Dismiss the Amended Complaint

Less than two weeks after the adverse, final

decision in the Article 75 proceedings, Plaintiff filed

her Amended Complaint in this case adding her 201011 allegations. (Dkt. 39). Plaintiff alleged that

Defendants' conduct violated the ADEA, the Americans

App. 36a

with Disabilities ("Act"), New York Executive Law

§ 206 ("NYSHRL"), the New York City Administrative

Code, the First Amendment of the Constitution, and

two state-law torts. Defendants DOE and Paul

Cunningham have filed this motion to dismiss, arguing

that Plaintiffs claims are either precluded by collateral

estoppel and res juc/icata or insufficiently pled.

IT Analysis

A. Plaintiffs 2010-11 Claims Are Barred by

Collateral Estoppel

Defendants argue that Plaintiff's claims are barred

by collateral estoppel and res judicata. According to

Defendants, the issue of why Plaintiff was terminated

from P.S. 117 has already been determined in the 3020a and Article 75 proceedings. This Court agrees.

Because the issue at the heart of Plaintiff s 2010-11

claims—whether the cause of her termination was

discrimination—was already decided during prior state

court proceedings, Plaintiff is estopped from now

bringing those claims in this Court.

1. Collateral Estoppel Standard

"A federal court must apply the collateral estoppel

rules of the state that rendered a prior judgment on

the same issues currently before the court[,I" LaFleur

v. Whitman, 300 F.3d 256, 271 (2d Cir. 2002). Collateral

estoppel in New York "precludes a party from relitigating in a subsequent action or proceeding an issue

clearly raised in a prior action or proceeding and

decided against that party .

whether or not the

tribunals or causes of action are the same." Ryan v.

NY Tel Co., 62 N.Y.2d 494, 500 (1984); EI-Shabazz

..

App.3 7a

v. State of New York Comm. on Character & Fitness,

428 F. App'x. 95, 96-97 (2d Cir. 2011) (collateral

estoppel applies in the subsequent action "irrespective

of whether the tribunals or causes of action are the

same"). Under New York law, collateral estoppel applies

when (1) the issue in question was actually and

necessarily decided in a prior proceeding; (2) is

decisive in the current proceeding; and (3) the party

against whom the doctrine is asserted had a full and

fair opportunity to litigate the issue in the first proceeding. See Evans v. Ottimo, 469 F.3d 278, 281 (2d

Cir. 2006). The party asserting preclusion carries the

burden of establishing the first two elements, whereas

the party opposing preclusion must demonstrate that

there was not a full and fair opportunity to litigate.

Id. at 281-82.

"[Flederal courts must give state-court judgments

the same preclusive effect as they would receive in

courts of the same state." Burkybile v. Bd of Ed. of

the Hastings-on-the-Hudson Union Sch. Dist., 411 F.3d

306, 310 (2d Cir. 2005). Findings reached through

section 3020-a hearings, which are quasi-judicial

administrative actions, are entitled to preclusive

effect. Id. at 308, 311-12; Smith v. New York City

Dep't of Educ., 808 F.Supp.2d. 569, 578 (S.D.N.Y.

2011) (Buchwald, J.). Additionally, notwithstanding

the limited judicial review by an Article 75 court of a

3020-a proceedings, "a state court has the authority

to consider claims alleging a violation of due process

with respect to the conduct of the [3020-al proceeding

in an Article 75 proceeding." Saunders v. New York

City Dep't of Ed, No. 07-CV-2725, 2010 WL 2816321,

at *18 (E.D.N.Y. July 15, 2010) (Feuerstein, J.) (citing

Giardina v. Nassau County, No. 08-CV-2007, 2010 WL

App. 38a

1850793, at *4..5 (E.D.N.Y. May 7, 2010) (Bianco, J.)

(holding that the state court had the ability to consider

the plaintiffs' claims regarding a lack of due process

in the arbitration and could examine whether the

procedures used in the arbitration itself complied

with due process)). There is no question that the

3020-a and Article 75 proceedings here are afforded

preclusive effect.

2. ADEA Standard

Plaintiffs first cause of action against Defendants

alleges that she was subjected to an adverse employment action and disparate treatment, a hostile work

environment, and retaliation because of her age in

violation of the ADEA. (Comp]. at IT 81-83). "To

establish a prima facie case of age discrimination

under the ADEA, a plaintiff must show that: (1) he is

a member of a protected class; (2) he was qualified for

his position; (3) he suffered an adverse employment

action; and (4) the adverse employment action occurred

under circumstances giving rise to an inference of

discrimination." Smith, 808 F.Supp.2d at 579; James

v. NY Racing Ass'n, 233 F.3d 149, 153-54 (2d Cir.

2000). If the plaintiff can establish this prima facie

case, the burden of proof is then shifted to the defendants to offer legitimate, nondiscriminatory justifications for their actions. Smith, 808 F.Supp.2d at 579

(citing St. Mary's Honor Or. v. Hicks, 509 U.S. 502,

506-07 (1993); McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-03 (1973)). After the defendant articulates

a legitimate reason for the action, the plaintiff must

demonstrate that the proffered reason is pretextual

by demonstrating that the defendants' reasons are

false and that the adverse action was motivated by

unlawful discrimination. Smith, 808 F.Supp.2d at 579

App.39a

(citing Texas Dep't of Cmty. Affairs v. Burdine, 450

U.S. 248, 255-56 (1981); Kerzer v. Kingly Mfg, 156 F.3d

396, 401 (2d Cir. 1998)). In sum, "a plaintiff bringing

a disparate-treatment claim pursuant to the AIJEA

must prove, by a preponderance of the evidence, that

age was the 'but-for' cause of the challenged adverse

employment action." Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167 (2009); DiGirolamo v. MetLife Grp.,

Inc., 494 F. App'x 120, 122 (2d Cir. 2012).

3. ADA Standard

Plaintiff also alleges that she was discriminated

against because of her arthritis and allergies, and

that Defendants failed to reasonably accommodate

her disabilities. (Compl. ¶J 84-103). To state a claim

for ADA discrimination, the plaintiff must demonstrate

that: "(1) plaintiffs employer is subject to the ADA;

(2) plaintiff was disabled within the meaning of the

ADA; (3) plaintiff was otherwise qualified to perform

the essential functions of her job, with or without

reasonable accommodation; and (4) plaintiff suffered

an adverse employment action because of her disability." Jacques v. DiMarzio, Inc., 386 F.3d 192, 198

(2d Cir. 2004) (citing Cameron v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir. 2003)).

In the same vein, to state a claim for ADA failure

to accommodate, the plaintiff must demonstrate that:

"(1) [she] is a person with a disability under the

meaning of the ADA; (2) an employer covered by the

statute had notice of [her] disability; (3) with reasonable

accommodation, plaintiff could perform the essential

functions of the job at issue; and (4) the employer has

refused to make such accommodations." McBride v. BIC

Consumer Prods. Mfg. Co., 583 F.3d 92, 97 (2d Cir.

2009). "The same burden-shifting framework that

applies to [Plaintiffs] age discrimination claims under

the ADEA applies to

[her] disability discrimination claims under the ADA." Smith, 808 F.Supp.2d at

580 (citing McBride, 583 F.3d at 96).

.

.

.

4. Plaintiffs Discrimination and Retaliation

Claims Are Precluded

Defendants assert that Plaintiffs ADA and AIIEA

claims must be dismissed because "a Hearing Officer

[has] found [Pilaintiff guilty of misconduct, the

parties have already actually litigated and decided

that any adverse employment action was justified,

and therefore, could not have been a pretext for

unlawful discrimination." (Def.'s Br. at 4.)

In nearly identical circumstances, the court in

Smith held that after a 3020-a Hearing Officer found

that the plaintiff was guilty of misconduct, time and

attendance abuse, insubordination, and neglect of

duty, the issue of why the plaintiff was terminated

was precluded from further litigation. Smith, 808

F.Supp.2d at 579-80. The court determined that the

ultimate issue was the same both in the case before

it and the 3020-a proceeding. Ic!. "[I]n both contexts,

it becomes necessary to resolve whether [the plaintiff]

was subjected to adverse employment actions because

of his own conduct or because of other factors, such

as impermissible discrimination by defendants." Id.

at 580. After the 3020-a Hearing Officer found the

plaintiff guilty of misconduct, "the parties [had] actually litigated and the hearing officers actually

decided that any adverse employment action was

justified and not based on impermissible discrimination.

Thus, because the hearing officers concluded that

App .41 a

there existed just cause for the adverse employment

actions, those officers actually decided that [plaintiff]

cannot make out a prima facie case of discrimination

nor can he put forth evidence of pretext." Id. The

court held that the "doctrine of collateral estoppel in

fact bars the federal discrimination claims raised in

[that] action." Id. at 579.

Here, as in Smith, "it is well-settled that the

[hearing], which [was] conducted in accordance with

section 3020-a of the Education Law, may be afforded

preclusive effect." Smith, 808 F.Supp.2d at 580

(citing Burkybile, 411 F.3d at 308). Accordingly,

Plaintiffs ADA and ADEA discrimination and retaliation claims, as far as they relate to the 2010-11

school year, are collaterally estopped.

The question before the Court is whether Plaintiff

was terminated because of improper conduct or

Defendants' discrimination or retaliation against her.

But during the 3020-a proceedings, the parties actually

litigated this very issue, (Ex. A at 2), and the Hearing

Officer actually decided that Plaintiffs termination

was caused by Plaintiffs insubordinate conduct, not

by impermissible discrimination or retaliation. (Id. at

36). The Hearing Officer's determination that there

was cause for Plaintiffs termination precludes Plaintiff

from making a prima facie case of discrimination or

retaliation.

Plaintiff had a full and fair opportunity to litigate

the issue of her termination. Plaintiff was given a

three-day evidentiary hearing in which she was

represented by counsel and was given every opportunity

to present evidence, argue her view of the facts, and

cross-examine witnesses. (Ex. A at 2). Further, the

cause of Plaintiffs termination was necessary to the

App.42a

final judgment in the 3020-a proceeding. The crucial

questions in the proceeding were whether the DOE's

alleged specifications were true and whether they

supported terminating a tenured teacher. The Hearing

Officer unequivocally and validly held that at least

five of the specifications were proven by the DOE and

that the insubordinate acts justified the termination

of Plaintiff. (See Ex. A). These findings were given a

second consideration on appeal in the Article 75 court,

which affirmed the Hearing Officer. Saunders, 2010

WL 2816321, at *18 ("By denying the petition pursuant

to Article 75, the state court actually and necessarily

decided both that [Hearing Officer's] decision was

supported by adequate evidence and that the decision

was in accord with due process.").

Plaintiff argues that the holding in another

Southern District case, Senno v. Elmsford Union Free

Sch. Dist., 812 F.Supp.2d 454 (S.D.N.Y. 2011) (Wood,

J.), dictates a different result. The court in Senna

held that the plaintiffs retaliation claim had not

been considered in the 3020-a proceeding and was

therefore not collaterally estopped from being relitigated in the federal lawsuit. Id. at 471. However,

the retaliation claim in Senno is distinguishable from

Plaintiffs claim here, as the plaintiff in Senno

alleged retaliation based on his disparate treatment

compared to one other school district employee who

engaged in the same conduct as plaintiff, but was not

terminated. See Id. at 461 ("[Plaintiffs retaliation]

claim will turn on whether Plaintiff and [the other

employee] were similarly situated 'in all material

respects,' which, in turn, depends in part upon whether

they engaged in misconduct that was 'of comparable

seriousness."). The court in Senno was unable to give

App. 43a

preclusive effect to the 3020-a proceeding because the

Hearing Officer did not do a comparative evaluation

or decide any issue related to the school district's

treatment of the other employee. Id. at 471. That

issue is not present here as the acts of discrimination

and retaliation that were before Plaintiffs Hearing

Officer are the very same acts of discrimination and

retaliation alleged in the Amended Complaint. Unlike

in Senno, Plaintiffs 3020-a proceeding addressed all

of the same facts relevant to her federal claims in

determining that the cause of Plaintiffs termination

was her own inappropriate conduct.

The Hearing Officer's findings, upheld in a subsequent Article 75 proceeding, foreclose Plaintiffs

ability to make a prima facie case for discrimination

or retaliation concerning her termination during the

2010-11 school year under either the ADA or AJJEA.

Plaintiff cannot allege in this proceeding that she

was terminated because of discrimination or retaliation

when prior State Proceedings have held otherwise.

Plaintiffs First and Second Causes of Action, as far

as they relate to the 2010-11 school year, are therefore

dismissed with prejudice.

5. Plaintiffs Failure to Accommodate

Claims

Plaintiffs Third Cause of Action alleges that

Defendants denied Plaintiffs request for reasonable

accommodations for her allergies. Again, the Hearing

Officer was faced with this very question and decided

the issue in Defendants' favor. In determining that

Plaintiff was guilty of Specification 6, the Hearing

Officer determined that Plaintiff failed to make a

proper request for an allergy accommodation for the

Ins 1UM

3

2010-11 school year. (Ex. A at 28-29). The Hearing

Officer found that Plaintiff "did not apply for an

accommodation for air conditioning from the Medical

Bureau" and that Principal Cunningham "was not

prohibited from assigning [Plaintiff] to the new wing[.]"

(Ex. A at 29). In fact, the Plaintiff herself admitted

during the 3020-a proceeding that she was initially

given a non-air-conditioned room only because the

principal was attempting to appease her despite the

lack of an official request for an accommodation. (Ex.

she did not apply

A at 29) (Plaintiff "testified that

for an accommodation for air conditioning from the

Medical Bureau."). Plaintiff cannot allege that she

was denied a reasonable accommodation when she did

not actually request one. See Thorner—Green v. New

York City Dept. of Corrs., 207 F.Supp.2d 11, 14-15

(E.D.N.Y. 2002) (Gershon, J.) (an "employee cannot

hold an employer liable for failing to provide an

accommodation that the employee has not requested

in the first place"); Falchenberg v. New York City

Dept of Ed, 375 F.Supp.2d 344, 348 (S.D.N.Y. 2005)

(Sweet, J.).

.

.

.

The question of whether Plaintiff requested an

accommodation was actually litigated and decided in

the 3020-a proceedings. The Hearing Officer needed

to determine whether Plaintiff was guilty of Specification 6 (failure to report to her teaching assignment in the air-conditioned Room 133), and if Plaintiff had a health or safety reason for not reporting to

her teaching assignment, she would not have been

insubordinate. (Ex. A at 28-29). Yet, the Hearing

Officer found that Plaintiff did not have such a

justification, i.e. a proper request for an accommodation,

and therefore was insubordinate. (Ex. A at 29). As

App.45a

the Hearing Officer necessarily held that Plaintiff

failed to make such a request, Plaintiff is collaterally

estopped from alleging a necessary element of her

failure to accommodate claim.5

Accordingly, the Defendants' motion to dismiss

the Third Cause of Action, as it applies to the 201011 school year, is granted.

6. Plaintiffs New York Human Rights

Law Claims

Plaintiff alleges violations of New York Executive

Law § 296 ("NYSHRL") for unlawful discrimination,

retaliation, and failure to engage in interactive

negotiation as well as the aiding and abetting of such

violations. (Compl. ¶J 104-22). "New York State

disability discrimination claims are governed by the

same legal standards as federal ADA claims." Rodal

v. Anesthesia Group of Onondaga, 369 F.3d 113, 117

n.1 (2d Cir. 2004) (noting that its decision on ADA

claims "pertain [ed] equally to

parallel state

claim"); Abdu-Brisson v. Delta Air Lines, Inc., 239

.

.

.

S It is also worth noting that Plaintiffs claim that the school officials

"refused to enter into an interactive process of negotiation" is

without merit. The Hearing Officer determined that despite not

having requested an accommodation for her allergies, the P.S.

117 administration nonetheless deferred to Plaintiffs preferences

by first giving her a kindergarten classroom without air conditioning, Room 113, and then offering to turn off the air conditioning in Room 133 when she was re-assigned there (after

insubordinately refusing to bathroom her students in Room

113). (Ex. A at 29). It was Plaintiff who ultimately testified that only

one of the 53 rooms in P.S. 117 was suitable for her to teach in.

(Ex. A at 35). In essence, when Plaintiff was not given the pre-K

teaching assignment that she wanted, she refused to engage in

interactive, reasonable negotiation with the administration.

F.3d 456, 466 (2d Cir. 2001) ("age discrimination

suits brought under the State HRL

are subject to

the same analysis as claims brought under the ADEN').

Accordingly, the Court will evaluate Defendants' motion

to dismiss the Plaintiffs NYSHRL claims using the

same legal standards as her ADA and ADEA claims.

.

As with her federal claims, Plaintiff is estopped

from bringing her § 296 claims by the legal findings

of the 3020-a Hearing Officer, as far as they relate to

the 2010-11 termination. For the same reasoning as

discussed above, the Hearing Officer necessarily decided

that Plaintiffs termination was a result of her insubordination, not the result of any discriminatory or retaliatory Treatment towards her. (Ex. A at 36). Therefore,

Plaintiff is precluded from asserting that she was

terminated because of Defendants' discrimination or

retaliation towards her in violation of the NYSHRL.

Plaintiffs Fourth and Fifth Causes of Action are

dismissed to the extent they concern the 2010-11

school year termination.

B. Plaintiffs First Amendment Claim and Pre2010-11 Allegations of Discrimination, Retaliation, Failure to Accommodate, and Hostile

Work Environment Fail as a Matter of Law

"To survive a motion to dismiss, a 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, 678 (2009) (quoting

Bell At] v. Twombly, 550 U.S. 544, 570 (2007)). A sufficiently pled complaint must provide "more than an

unadorned, the-defendant-unlawfully-harmed-me accusation." Pension Ben. Guar. Corp. v. Morgan Stanley

In v. Mgmt. Inc., 712 F.3d 705, 717 (2d Cir. 2013)

App. 47a

(quoting IqbaI, 556 U.S. at 678). If a complaint merely

offers labels and conclusions, a formulaic recitation of

the elements, or "naked assertions devoid of further

factual enhancement," it will not survive a motion to

dismiss. IqbaI, 556 U.S. at 678 (quoting Twombly, 550

U.S. at 557). The Court must accept all factual allegations in the complaint as true, but is "not bound to

accept as true legal conclusion couched as factual

allegation." IqbaI, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 555). Legal conclusions must be supported by factual allegations. Iqba1, 556 U.S. at 678;

Pension Ben. Guar., 712 F.3d at 717.

1. Plaintiffs First Amendment Claim

Fails as Her Speech was Made as a

DOE Employee

Plaintiffs First Amendment claim rests on her

allegation that the speech in question—Plaintiff s

statements to her students' parents that Room 113

was "deplorable, filthy, and unsafe" and lacked ageappropriate furniture—was made outside of her DOE

employment and as a public citizen. (See Pl.'s Br. at

23). To determine whether or not a plaintiffs speech

is protected by the First Amendment, a court must

begin by asking whether the employee spoke as a citizen

on a matter of public concern. Sousa v. Roque, 578

F.3d 164, 170 (2d Cir. 2009). "If the court determines

that the plaintiff either did not speak as a citizen or

did not speak on a matter of public concern, the

employee has no First Amendment cause of action

based on his or her employer's reaction to the speech."

Id. (internal citations omitted). If the subject of an

employee's speech is a matter of public concern, her

speech is nonetheless unprotected by the First

Amendment if it is made in her capacity as a govern-

ment employee. See id,see also Jackler v. Byrne, 658

F.3d 225, 237 (2d Cir. 2011); Anemone v. Metro.

Transp. Auth., 629 F.3d 97, 115-16 (2d Cir. 2011).

The Supreme Court has recognized that a public

accept certain limiemployee must "by necessity

tations on his or her freedom," because, her speech can

"contravene governmental policies or impair the

proper performance of governmental functions."

Garcetti v. Ceballos, 547 U.S. 410, 418-19 (2006).

Furthermore, an employee's speech can be found to

be made as part of an employee's official duties even

if it is not expressly required, "so long as the speech

is in furtherance of such duties." Weintraub v. Bd. Of

Ed of City 8ch. Dist. of City ofNY, 593 F.3d 196,

202 (2d Cir. 2010). The inquiry is "a practical one" as

"[filormal job descriptions often bear little resemblance

to the duties an employee actually is expected to perform, and the listing of a given task in an employee's

written job description is neither necessary nor sufficient to demonstrate that conducting the task is

within the scope of the employee's professional duties

for First Amendment purposes." Garcetti 547 U.S. at

424-25. Because, the determination of whether a public

employee is speaking pursuant to her official duties

"is not susceptible to a brightline rule," the Second

Circuit has held that "[clourts must examine the nature

of the plaintiffs job responsibilities, the nature of the

speech, and the relationship between the two." Ross

v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012). A teacher's

communication with a student's parents concerning

"what occurred in the classroom" has been held to be

made in the plaintiffs capacity as a teacher. Marchi

v. Ba' of Coop. Ed Servs. ofAlbany, 173 F.3d 469, 476

(2d Cir. 1999).

.

.

.

App.49a

Reading the Amended Complaint in the light most

favorable to Plaintiff, she has failed to sufficiently

allege that she was speaking outside her capacity as

an employee of the DOE when she told the parents that

Room 113 was "deplorable, filthy and unsafe." (Compl.

¶ 113). Here, the practical inquiry set forth in Gareetti

leads to only one conclusion: a teacher discussing

classroom conditions with students' parents is wholly

within the scope of the teacher's core duties. See

Weintraub, 593 F.3d at 202-03 (holding that a teacher's

union grievance "was pursuant to his official duties

because it was part-and-parcel of his concerns about

his ability to properly execute his duties as a public

school teacher") (internal citations omitted); see also

Marchic 173 F.3d at 476 (holding that a note sent to a

parent as a "thank you" for providing religious music

that would calm a special needs student was sent in

the plaintiffs capacity as a teacher). Just as

maintaining classroom discipline "is an indispensable

prerequisite to effective teaching and classroom

learning," Weintraub, 593 F.3d at 203, having a clean

classroom with proper furniture for the students is

equally vital to the educational experience. Plaintiffs

speech to the parents concerning the attributes of

their children's classroom was "undertaken in the

course of performing [her] primary employment responsibility of teaching." Id. (internal citations and

quotations omitted).6

6 Plaintiff's only argument in defense of her claim is that Defendants took the position in the 3020-a hearing that Plaintiff was

"insubordinate" when she contacted the parents and therefore

they conceded that she was acting outside her role as an employee.

(P1's Br. at 23). But even if a finding of insubordination were

dispositive, no such argument or determination was made. Rather,

Defendants argued, and the Hearing Officer found, that Plaintiffs

App.50a

Furthermore, Plaintiff exercised her speech

through means with no relevant civilian analogue.

See Id. at 204 ("[Tlhe lack of a citizen analogue is

not. dispositive [but] it does bear on the perspective

of the speaker—whether the public employee is

speaking as a citizen[.I") (internal citations omitted).

When speech is made in a form and context that is

only available to public employees—and not to members

of the public in general, such as submitting a letter

to the editor of a newspaper or an elected official—it

is indicative that the speech was made in the speaker's

capacity as a public employee. Ic!. Here, Plaintiff

communicated with the parents by calling them at their

homes and speaking with them at the end-of-the-day

student pick up location. Both are circumstances

created solely by her position as the children's schoolteacher and by function of her DOE responsibilities.

Plaintiffs communiques lack "a relevant analogue to

citizen speech" and demonstrate that she was speaking

in her role as a public employee. Id.

.

Because a practical inquiry into the nature of

Plaintiffs professional duties clearly demonstrates

that communications made to her students' parents

about the condition of the children's classroom fall

squarely within the scope of Plaintiffs DOE employment, Plaintiff has failed to state a claim for the

violation of her First Amendment rights. Accordingly,

Plaintiffs First Amendment claim is dismissed,

conduct was "unprofessional and unbecoming her position" when

she contacted the parents without first requesting that the administration deal with her alleged classroom issues. (Ex. A at 27-28).

App.51a

2. Plaintiff Has Failed to State a Claim for

Discrimination or Retaliation

Beyond the facts of the 2010-11 school year, the

Amended Complaint alleges a number of earlier,

discrete events that Plaintiff argues constitute adverse

employment actions under the ADA and ADEA. These

events are not estopped by the 3020-a proceeding and

must be considered separately under the Fed. R. Civ.

P. 12(b)(6) motion to dismiss standard. Specifically,

Plaintiff alleges that over a five-year period Defendants

openly stated that she should retire, attempted to

force her to sign a statement as to when she would

retire, assigned her teaching assignments inconsistent

with her top preference, placed discipline letters in her

files, provided her with an "unsatisfactory" evaluation,

placed troublesome students in her class, made her

write out long lesson plans, "microscopically monitored

and baselessly reprimanded her," excluded her letter

from a ceremony program, cancelled her class's field

trips in 2007 and 2010, and excluded her class from a

ceremony. (Pl.'s Br. at 12-13). Defendants respond that

none of these actions constitute an adverse employment

action under the ADA, ADEA, or NYSHRL and therefore must be dismissed as Plaintiff cannot make out a

prima facie case for discrimination or retaliation.

An essential element under both the federal and

state statutes is that Plaintiff must allege an adverse

employment action. See, supra, Sections II.A.2-3, 6.

"A plaintiff sustains an adverse employment action if

he or she endures a 'materially adverse change' in

the terms and conditions of employment." Galabya v.

New York City Rd of Ed, 202 F.3d 636, 640 (2d Cir.

2000) (abrogated on other grounds). "To be materially

adverse a change in working conditions must be more

App.52a

disruptive than a mere inconvenience or an alteration

of job responsibilities." Id. (internal quotations omitted).

"A materially adverse change might be indicated by a

termination of employment, a demotion evidenced by

a decrease in wage or salary, a less distinguished

title, a material loss of benefits, significantly diminished material responsibilities, or other indices

unique to a particular situation." Ic!.

Plaintiff has not alleged a materially adverse

employment action in the years prior to the 2010-11

school year. Plaintiff argues that deprival of her topchoice teaching assignment, negative performance

evaluations, exclusion from certain extracurricular

school activities, and questioning as to when she

would retire constitute adverse employment actions.

But, none of those acts rises to the level of a materially

adverse change in the terms and conditions of her

employment sufficient to state a claim under the ADA,

ADEA, or NYSHRL. See Mills v. S. Conn. State Univ.,

519 F. App'x 73, 75 (2d Cir. 2013) (finding that various

incidents including intimidating behavior, shunning

by colleagues, refusals to allow plaintiff to teach

upper-level courses, and refusals to accommodate

scheduling requests did not constitute adverse actions

as they did not reflect "a materially adverse change

in the terms and conditions of employment"); Williams

v. R.H. Donnelley Corp., 368 F.3d 123, 128 (2d Cir.

2004) (concluding that the denial of an employee's

request for transfer is not an adverse employment

action unless the denial "created a materially significant

disadvantage in her working conditions"); Weeks v.

N YState Div. of Parole, 273 F.3d 76, 86 (2d Cir.

2001) ("It hardly needs saying that a criticism of an

is not an adverse employment action.")

employee

.

.

.

App. 53a

(abrogated on other grounds); Wanamaker v.

Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997)

(holding that denying an employee the use of an office

or telephone to conduct a job hunt once he had notice

of his termination was not "sufficiently deleterious to

constitute adverse employment action prohibited by

the ADEA"); Hurt v. Donahoe, No. 07-CV-4201, 2011

WL 10526984, at *7..8 (E.D.N.Y. Feb. 24, 2011)

(Vitaliano, J.) affd, 464 F. App'x 40 (2d Cir. 2012)

(holding that a supervisor's comment that if plaintiff

walked through a specific area and injured herself

that she would be left there was "not a change in the

terms and conditions of [plaintiffs] employment" and

therefore was not an adverse employment action);

Mabry v. Neighborhood Defender Serv., 769 F.Supp.2d

381, 393 (S.D.N.Y. 2011) (Castel, J.) ("Negative

evaluations or reviews, without accompanying tangible

harm or consequences, do not constitute materially

adverse action altering the conditions of employment.").

Without a materially adverse employment action,

Plaintiffs discrimination and retaliation claims fail

as a matter of law.

Furthermore, Plaintiff has failed to sufficiently

plead that any of Defendants' actions during the

relevant time period were motivated by discriminatory

or retaliatory animus. Plaintiffs continued allegations

that "younger similarly situated teachers" were treated

differently than she are conclusory and amount to

little "more than an unadorned, the-defendant-unlawfully-harmed-me accusation [s] Iqba1, 556 U.S. at

678. "[Nlaked assertions devoid of further factual

enhancement," will not survive a motion to dismiss.

Id. (quoting Tcvonib1j 550 U.S. at 557). Plaintiffs

Complaint does not include specific factual references

."

App. 54a

to transform her general allegations that these actions

were motivated by discriminatory animus into cognizable claims for discriminatory or retaliatory treatment.

Plaintiffs claims of discrimination and retaliation

for Defendants' alleged conduct prior to the 2010-11

school year fail as a matter of law and are hereby dismissed.

3. Plaintiff Has Failed to State a Claim for

a Hostile Work Environment

Plaintiff alleges that she was subjected to a

hostile work environment at P.S. 117 prior to the

2010-11 school year because of her age and disabilities.

(Compl. at ¶J 83, 117). To state a claim for a hostile

work environment, the Plaintiff must show that "the

workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of the victim's employment." Kassner v. 2nd Ave. Delicatessen, Inc., 496

F.3d 229, 240 (2d Cir. 2007) (citations and quotations

omitted); Fordhain it. Islip Union Free Sch. Dist., 662

F.Supp.2d 261, 271 (E.D.N.Y. 2009) (Hurley, J.).

Further, Plaintiff must prove that: "(i) [sihe was

subjected to harassment, based on [her] age, that

was sufficiently severe or pervasive to alter the conditions of [her] employment and create an abuse

working environment; and (2) that a specific basis exists for imputing the objectionable conduct to the

employer." Alleva it. New York City Dept of Investigation, 696 F.Supp.2d 273, 283 (E.D.N.Y. 2010)

(Block, J.), affd, 413 F. App'x 361 (2d Cir. 2011)

(citing Alfano it. Costello, 294 F.3d 365, 373 (2d Cir.

2001)). For Defendants' conduct to be sufficiently

"severe or pervasive," Plaintiff must show that the

App.55a

conduct was: "(1) objectively severe or pervasive

creating an environment that a reasonable person

would find hostile or abusive, subjectively severe or

pervasive, in that [Plaintiff] must have perceived it

as hostile or abusive, and (3) on account of [Plaintiff

s] age." Id. (quoting Patane v. Clark, 508 F.3d 106,

113 (2d Cir. 2007)) (internal quotations omitted).

"Objective severity is assessed on a 'totality of the circumstances,' which may include: (i) frequency of the

discriminatory conduct; (2) its severity; whether it is

physically threatening and humiliating, or a mere

offensive utterance; and (4) whether it unreasonably

interferes with an employee's work performance.

Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

In light of these principles, Plaintiff has failed to

state a claim for a hostile work environment. Plaintiffs claim fails for a number of reasons, including that

the Amended Complaint does not raise a plausible

inference that Defendants' conduct was related to

Plaintiffs age or disabilities, or that the P.S. 117

work environment was "so severely permeated with

discriminatory intimidation, ridicule, and insult" so

as to alter the conditions of Plaintiffs employment.

Mills, 519 F. App'x at 75-76 (emphasis added); see

also Joseph v. Brooklyn Developmental Disabilities

Servs. Office, 12-CV-4402, 2013 WL 151197, at *10

(E.D.N.Y. Jan. 15, 2013) (Gleeson, J.). Plaintiff has

alleged a series of discrete, unrelated events, spanning

over a number of years, unlinked to any specific

allegations of discriminatory motive, which were neither

severe nor pervasive. See Taylor v. New York City

Dep'tofEduc., No. 11-CV-3582, 2012 WL 3150388, at *8

(E.D.N.Y. Aug. 2, 2012) (Gleeson, J.) (finding teacher's

allegations of being yelled at for not fitting in, being

App.56a

denied a transfer, and receiving negative performance

evaluations at the end of two school years were insufficient to state a hostile work environment claim).

Further, Plaintiffs allegations that she was

asked when she would retire and requested to fill out

a form stating her intended date of retirement are

not indicative of a discriminatory, hostile work

environment. (Compl. at ¶1 27-28, 41). The Second

Circuit's decision in Kassner makes clear that such

conduct does not constitute a hostile work environment.

In Kassner, one plaintiff alleged that she was subjected

to "repeated" and "degrading" comments including

"drop dead," "retire early," "take off all of that makeup," and "take off your wig," while the second plaintiff

merely alleged that she was "pressured" by defendants

to retire from employment. 496 F.3d at 240-41. The

court held that the first plaintiff had stated a hostile

work environment claim, while the second had not.

M. Plaintiffs claim here is analogous to the second

Kassner plaintiff and fails as a matter of law.

Plaintiff has failed to state a claim for a hostile

work environment under either the AIJEA or NYSHRL

and those causes of action are hereby dismissed.

4. Plaintiff Has Failed to State a Claim for

Failure to Accommodate

As discussed in Section II.A.5, supra, a failure to

accommodate claim under the ADA fails as a matter

of law if the Plaintiff has failed to allege that she

made a request for an accommodation. The Amended

Complaint is devoid of any non-conclusory allegation

that, during the pre-2010-11 school year period, Plaintiff

actually requested an accommodation according to DOE

procedures. Plaintiff alleges that she "complained" of

App.57a

the temperatures in the new wing of P.S. 117, (Compi.

at ¶ 19) and "provided" documentation concerning her

arthritis, knee trauma, and allergies. (Id. at 1 38,

40). But notably absent in the record is a request to

the Medical Bureau for an accommodation for these

disabilities or a rejection of such accommodation by

the Defendants. Without a proper request for an

accommodation, Plaintiff has failed to state a claim

for failure to accommodate under the disability laws

and her claims are hereby dismissed. See Faichen berg,

375 F.Supp.2d at 348.

C. The Court Declines to Exercise Jurisdiction

Over Plaintiffs Remaining State Law Claims

Plaintiff also brings claims for intentional infliction

of emotional distress, defamation, and violations of

New York City Administrative Code § 8-107. Prior to

a revision by the New York City Council in 2005, claims

under the Code were analyzed identically to federal

and state law discrimination claims. Mihahk v. Credit

Agricole Cheuvreux N Am., Inc., 715 F.3d 102, 109

(2d Cir. 2013). However, the 2005 Restoration Act

created broader liability than exists under federal

and state law, and the Second Circuit has instructed

that discrimination claims under the Code be construed

"separately and independently from any federal and

state law claims." Id. (citing Restoration Act § 1;

Hernandez v. Kaisman, 103 A.D.3d 106 (1st Dep't

2012)). Therefore this Court cannot apply the same

analysis to Plaintiffs New York Administrative Code

claims as it did to the federal and state discrimination claims.

Accordingly, along with Plaintiffs intentional

infliction of emotional distress and defamation claims,

App. 58a

the Court declines to exercise supplemental jurisdiction over the remaining municipal and state law

claims.

When the federal claims in an action based on

supplemental jurisdiction are dismissed, the state

claims should be dismissed as well. 28 U.S.C.

§ 1367(c)(3); see also United Mine Workers v. Gibbs,

383 U.S. 715, 726 (1966); In re Merrill Lynch Ltd

P'ships Litig., 154 F.3d 56, 61 (2d Cir. 1998). While

the dismissal of supplemental state claims is discretionary at this juncture, the usual case "will point

toward declining jurisdiction over the remaining

state-law claims." In re Merrill Lynch, 154 F.3d at 61

(quoting Carnegie—Mellon Univ. v. Cohill, 484 U.S.

343, 350 n.7 (1988)). Once a district court has dismissed all claims over which it has original jurisdiction,

it still balances the traditional "values of judicial

economy, convenience, fairness, and comity" while

maintaining the guiding directive that "in the usual

case in which all federal-law claims are eliminated

before trial, the balance of factors

will point

toward declining to exercise jurisdiction over the

remaining state-law claims." Kolari v. New YorkPresbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)

(quoting Cohill, 484 U.S. at 350).

.

.

.

In this case, discovery is still pending and there

is no reason that any of the discovery would need to

be repeated if Plaintiffs pendent claims were

brought in state court. Murray v. Visiting Nurse

Servs. of NY, 528 F.Supp.2d 257, 281 (S.D.N.Y.

2007) (Sullivan, J.); see also Kelsey i'. City of New

York, No. 03-CV-5978, 2006 WL 3725543, at *11

(E.D.N.Y. Sept 18, 2006) (Bianco, J.) (declining to

exercise pendent jurisdiction where "it [was] not clear

App.59a

to the [clourt why the discovery would need to be

repeated if the [state law] negligence claim [were to

be] litigated in state court"). Furthermore, a trial

date has not been set in this matter and this is the

first dispositive motion. Cf Nowak tz. Ironworkers

Local 6 Pension Fund, 81 F.3d 1182, 1192 (2d Cir.

1996) (upholding the exercise of jurisdiction over

state claims where federal claim was dismissed only

nine days before trial); Raucci v. Town of Rotterdam,

902 F.2d 1050, 1055 (2d Cir. 1990) (upholding exercise of jurisdiction over state claims where discovery

was completed, three dispositive motions were

decided, and case was ready for trial). Finally, Plaintiffs state and city claims will not be time-barred in

New York state court because of this dismissal, and

Plaintiff will suffer no undue prejudice by this

Court's refusal to exercise supplemental jurisdiction

over her state and municipal law claims. See N.Y.

C.P.L.R. § 205(a) (permitting a plaintiff to bring a

new action upon the same transaction "within six

months after [the prior action's] termination.").7

In accordance with the guiding principle that

district courts will not typically maintain state claims

once the anchoring federal claims are dismissed, this

Court declines to exercise supplemental jurisdiction

over Plaintiffs remaining state and municipal law

claims. See 28 U.S.C. § 1367(c)(3). Those causes of

action are dismissed without prejudice.

7 If a plaintiffs claims are dismissed by "voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant,

a dismissal of the complaint for neglect to prosecute the action,

or a final judgment upon the merits[,]" she cannot avail herself

of § 205(a). N.Y. C.P.L.R. § 205 (a).

ri!n;tIJ!1

III. Conclusion

Defendants DOE and Paula Cunningham's motion

to dismiss the Amended Complaint is GRANTED in

its entirety. The claims related to the 2010-11 school

year are barred by principles of collateral estoppel

and are dismissed with prejudice. The First Amendment and pre-2010-11 school year claims are dismissed

for failure to state a claim under Fed. R. Civ. P.

12(b)(6), and are dismissed without prejudice. Plaintiff's

remaining state and municipal law claims are dismissed for lack of pendent jurisdiction and are dismissed without prejudice.

SO ORDERED

Is! Hon. William F. Kuntz, II

Dated: Brooklyn, New York

April 29, 2014

BLANK PAGE

Ili

SUPREME COURT

PRESS