Bagarozzi v. N.Y.C. Dep't of Educ., 18-CV-4893 (RA)

MARGUERITE BAGAROZZI, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION; SHOMARI SKIL,PRINCIPAL of QUEENS ACADEMY HIGH SCHOOL; NATHIFA MORRIS,ASSISTANT PRINCIPAL of QUEENS ACADEMY HIGH SCHOOL, Defendants.

No. 18-CV-4893 (RA)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 31, 2019

MEMORANDUM OPINION & ORDER

RONNIE ABRAMS, United States District Judge:

Plaintiff Marguerite Bagarozzi, a high school teacher, filed this action alleging that Defendants New York City Department of Education ("DOE"), Queens Academy High School Principal Shomari Akil, and Assistant Principal Nathifa Morris discriminated against her, subjected her to a hostile work environment, and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the New York State Human Rights Law, the New York City Human Rights Law, and the First Amendment to the United States Constitution. The DOE moved to dismiss the Amended Complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure and Section 3813 of the New York State Education Law. For the reasons stated below, the motion is granted and Plaintiff's action is dismissed, albeit without prejudice.

BACKGROUND¹

Plaintiff has been employed as a high school English teacher at Queens Academy High School ("School") since 2007. She is a 68-year-old white woman, and is among the oldest teachers at the School. Defendants Akil and Morris ("Individual Defendants"), who were removed from the School in 2017, are black and significantly younger than Plaintiff. Plaintiff was the surrogate for the union chapter leader for the Jamaica campus of the School since the beginning of the 2016-17 school year. Throughout her teaching career, Plaintiff has generally been rated Satisfactory, Effective and/or Highly Effective.

A series of disputes arose between Plaintiff and the Individual Defendants between 2015 and 2018. Several of these disputes involved Plaintiff—acting as a "union surrogate"—filing grievances against the School administration. On November 15, 2016, after being denied the ability to park closer to the School due to a foot injury and noticing that Principal Akil permitted such parking by younger, non-white teachers, Plaintiff filed a grievance on behalf of the School's faculty and staff regarding parking permits that were not extended to all faculty and staff members. All faculty and staff were thereafter permitted to park near the back of the School. This permission was subsequently rescinded, yet several non-white faculty members allegedly continued to park in the lot.

Next, on December 1, 2016, Plaintiff filed a grievance against the School administration on behalf of students at the School with special needs who were not receiving mandated services, in violation of city and state law. On or about February 1, 2017, Plaintiff, along with union chapter leader Jennifer Squires, filed a grievance relating to the administration's failure to file a reportabout an incident with a student. On May 1, 2017, Plaintiff filed a grievance in response to improper procedures relating to observations, and on May 23, 2017, she filed another grievance relating to a disciplinary letter which was issued to her more than three months after an incident, in violation of certain provisions of her contract. After Plaintiff filed these grievances, she alleges she started receiving more critical evaluations despite having earned a Highly Effective Measure of Teacher Performance ("MOTP") and Effective Advance Overall Rating the year before. Plaintiff ultimately received the lower rating of Developing MOTP during the 2016-17 school year as a result of these evaluations.

Plaintiff contends that Defendants also treated "similarly situated, younger, non-white teachers" better than her on several occasions. First, rather than posting "per session income" opportunities, Defendants gave the majority of them directly to younger, non-white teachers.² Plaintiff was therefore unable to earn certain per session income during the 2015-16 and 2016-17 school years. Although Plaintiff did receive some per session income during these two school years, she alleges she would have applied for more opportunities to earn such income if they had been publicly posted. Second, as noted, younger, non-white teachers were allowed to park closer to the School, while Plaintiff was not. Third, younger, non-white teachers were given advance notice of meetings and observations, which she was not. Fourth, Defendants issued disciplinary letters and held disciplinary conferences "exclusively and only with white teachers" at the School. The Amended Complaint lists numerous disciplinary letters that Plaintiff received, and alleges Defendants issued these letters in contravention of required procedures.

Plaintiff was also involved in several adversarial proceedings against the School administration. First, after Plaintiff fell at the School on December 22, 2016, she filed an incident report, and Principal Akil accused her of attempting to defraud the DOE so as to receive medical leave time. The DOE then commenced a disciplinary proceeding against Plaintiff, pursuant to New York State Education Law § 3020-a, accusing her of attempting to defraud the agency in order to secure a personal benefit and, in connection with a separate alleged incident, refusing to assist a student when he asked for help with revising an essay.³ The hearing officer dismissed the fraud claim but sustained the refusal-to-assist claim, issuing Plaintiff a $2,000 penalty and requiring her to go through training on how to better assist students.

Second, after the DOE commenced this disciplinary proceeding against Plaintiff, she initiated her own proceeding against the DOE and Principal Akil with the Public Employment Relations Board ("PERB").⁴ On August 16, 2018, the PERB judge issued a decision finding that the DOE and Akil had retaliated against Plaintiff due to her union activities by issuing her a disciplinary letter and by pursuing disciplinary charges against her. The DOE was ordered to cease retaliating against Plaintiff, remove from her file the May 18, 2017 disciplinary letter, make her whole for lost per session work and the $2,000 fine she incurred as a result of the disciplinary proceedings, and to post a public notice of the award.

Third, on the same day she commenced her PERB proceedings, Plaintiff filed a complaint with the New York State Division of Human Rights ("SDHR") against Defendants, alleging age and race discrimination as well as retaliation. See Def. Decl. Ex. B. The SDHR dismissedPlaintiff's complaint for administrative convenience, in light of her intention to file the present action in federal court.

Plaintiff alleges that the commencement of disciplinary proceedings against her caused her significant economic and proprietary loss, as well as exclusion from School events. Because the proceedings led to her reassignment from her duties, she says she has been unable to earn per session and summer school pay. She was also denied access to her classroom to collect her personal and professional belongings, and was repeatedly denied access to her personnel file. Plaintiff was only permitted access to the file after she threatened to contact her union. Moreover, according to Plaintiff, she was the only teacher not invited to the School's annual Staff Potluck Luncheon and the School's graduation ceremony.

STANDARD OF REVIEW

"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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. On a motion to dismiss, the Court accepts as true the factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. See Lopez v. Acme Am. Envtl. Co., Inc., No. 12-CV-511, 2012 WL 6062501, at *2 (S.D.N.Y. Dec. 6, 2012). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements" are not accepted as true and "do not suffice" to state a plausible claim. Iqbal, 556 U.S. at 678.

DISCUSSION

I. Claims Against the Individual Defendants are Dismissed for Lack of Service

Defendants Akil and Morris have not appeared in this case, and in the DOE's motion to dismiss, it notes that, "[u]pon information and belief, the putative individual defendants have not been properly served in this action." Mot. at 1 n.1. The Affidavit of Service of Summons and Complaint as to the Individual Defendants states that the documents were delivered to "the respondent's place of Work within the State of New York" at Queens Academy High School, 142-10 Linden Blvd., Jamaica, NY 11426, and left with the current principal and assistant principal. Dkt. 12. Under N.Y. C.P.L.R. § 308, personal service may be made by delivering the summons to a person of suitable age and discretion at the actual place of business of the person to be served. The Amended Complaint, however, acknowledges that neither Individual Defendant has worked at Queens Academy High School since 2017. Am. Compl. ¶¶ 15-16. Under C.P.L.R. § 308, an actual place of business is a "defendant's business address at the time of service, and not when the cause of action arose." Jackson v. Cty. of Nassau, 339 F. Supp. 2d 473, 478 (E.D.N.Y. 2004). Plaintiff offers no explanation for why she attempted service on the Individual Defendants at an address she knew was not their present place of business. Cf. McCord v. Larsen, 18 N.Y.S.3d 458, 460 (N.Y. App. Div. 2015) (permitting service on defendant's former...