Brown v. N.Y.C. Dep't of Educ.

MARY HURD BROWN, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

No. 20-CV-2424 (VEC) (OTW)

United States District Court, S.D. New York

August 31, 2021

VALERIE E. CAPRONI, United States District Judge

REPORT &RECOMMENDATION

ONA T WANG, UNITED STATES MAGISTRATE JUDGE:

Defendant New York City Department of Education (“DOE”) moves to dismiss the complaint (ECF 9, hereinafter known as “Am. Compl.”) by Plaintiff Mary Hurd Brown. (ECF 17, hereinafter known as the “Motion”). Plaintiff alleges age discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 612-34 (“ADEA”); disability discrimination under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-96 and the Americans with Disability Act of 1990, 42 U.S.C. §§ 12101-213 (“ADA”); and hostile work environment and retaliation claims under the ADEA, the Rehabilitation Act, and the ADA. Plaintiff also states analogous claims under the New York State Human Rights Law, N.Y. Exec. Law. §§ 290-97, (“NYSHRL”) and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101-31 (“NYCHRL”). For the reasons stated below, I recommend that the Motion be GRANTED with leave to amend.

I. Background

A. Facts

Plaintiff was born in 1949 and has worked for the DOE since 1988.^[1] Am. Compl. ¶ 1.^[2]Since 2001, Plaintiff has worked as an attendance teacher. Am. Compl. ¶ 2. The attendance teachers are assigned to one school for payroll purposes, i.e. the “payroll school, ” but service multiple schools at any given time. Am. Compl. ¶ 2. The payroll schools' principals review and assess attendance teachers. Am. Compl. ¶ 2.

Plaintiff had a knee replacement surgery in 2013 and is disabled due to that surgery because her “damaged knees [] impair her ability to perform the major life activity of walking, particularly up and down stairs.” Am. Compl. ¶ 3; ECF 25 at 2.^[3] Further, Plaintiff fell in 2015, resulting in a kneecap facture was “initially approved as a line of duty injury ....” (ECF 25 at 3).

1. Academic Year of 2016-17

Beginning in September 2016, Eric Friedman began working at Affinity Field Support Center as Plaintiff's direct supervisor. Am. Compl. ¶ 4. Part of Plaintiff's job as an attendance teacher included making home visits to students. Am. Compl. ¶ 31. At the start of the 20162017 school year, however, Mr. Friedman declined to approve: (1) “her use of a personal vehicle for [her work]” (Am. Compl. ¶ 5); or (2) her “TRAC submission allowing for personal car usage.”^[4] (ECF 25 at 2). Plaintiff states that her personal car use had “been approved for years by previous supervisors, ” and that “younger attendance teachers . . . did not have their car usage privileges revoked.” Am. Compl. ¶ 5. Mr. Friedman “refused to sign TRAC submission allowing for personal car usage for required field work . . . through October 2019.” (ECF 25 at 2). As a result, Plaintiff was “forced to access the subway in order to fulfill home visit requirements.” Am. Compl. ¶ 31. Plaintiff states that she is a beneficiary of Access-A-Ride-an MTA program that provides transportation services to individuals “who are proven to have needs that match the ADA's requirements.” See ECF 25 at 3; “How to Apply or Recertify for Access-A-Ride” at https://new.mta.info/accessibility/paratransit/how-to-apply-or-recertify-for-access-a-ride.

Plaintiff does not address whether she could use Access-A-Ride for home visits.

In December 2016, Plaintiff alleges that Mr. Friedman “verbally assaulted and publicly humiliated” her on multiple occasions. Am. Compl. ¶ 6. These incidents included one in which Mr. Friedman “scream[ed]” that Plaintiff “was old and that he would take away [her] job and [her] license.” Am. Compl. ¶ 7. The interaction was severe enough that a facilitator had to intervene. Id. This particular incident was deeply upsetting to Plaintiff, who went to urgent care, where she was directed to “stay home” because of “extremely high blood pressure.” Am. Compl. ¶ 7. Plaintiff reported the incident to Maria Mysliwy, Mr. Friedman's supervisor, but Defendant did not take remedial action. Am. Compl. ¶ 7.

On June 27, 2017, Plaintiff faced a disciplinary hearing for attending non-DOE conferences on June 5 & 6, 2017, for which Defendant “claim[ed] [she] did not have authorization to go”; and Defendant docked two days' pay from Plaintiff's salary. Am. Compl. ¶¶ 8, 14. At that disciplinary hearing, Plaintiff was also told that she received an “unsatisfactory” rating, which was her second unsatisfactory rating in her many years of working for the DOE. Am. Compl. ¶ 9.^[5] Principal Patricia Mineya provided Plaintiff the rating, but Plaintiff states there were no observations of her work that could justify such a rating. Am. Compl. ¶ 9.

2. Academic Year of 2017-18

In September 2017, Plaintiff filed a discrimination complaint with the DOE's Office of Equal Opportunity (“OEO”). Upon Mr. Friedman learning of the complaint, he began “a long and enduring campaign of retaliation against [Plaintiff] by himself and those closely associated with him.” Am. Compl. ¶ 10. As a result, Plaintiff and “several other senior and older attendance teachers . . . were all removed from their regularly assigned schools and assigned to schools which required an increase in travel time.” Am. Compl. ¶ 11. Further, Defendant placed “additional restrictions and stipulations” on Plaintiff and other senior staff, including “daily payroll reporting, which previously was never required.” Am. Compl. ¶ 12. Mr. Friedman also rejected all of Plaintiff's “TRAC Travel reimbursements” for the 2016-2017 year and some of the requested reimbursements for the 2017-2018 year.^[6] Am. Compl. ¶ 22.

In this year, Plaintiff received two disciplinary letters from Principal Mineya: In September 2017, Plaintiff was explaining to a group of three children why they should not cut class, when “[o]ne student began to raise her voice and use curse words at [Plaintiff].” Am. Compl. ¶ 13. In connection with this interaction, Plaintiff received a disciplinary letter from Principal Mineya for “child abuse.” Am. Compl. ¶ 13. Plaintiff received another disciplinary letter from Principal Mineya after Plaintiff “allegedly referred to her as ‘woman'” in November 2017. Am. Compl. ¶ 15.

In December 2017, Plaintiff had a DOE rating appeal hearing about her “unsatisfactory” rating for the 2016-17 school year. Am. Compl. ¶ 16. Principal Mineya declined to appear at the hearing; instead, Mr. Friedman attended in her absence, claiming that he (Mr. Friedman) was authorized to issue the unsatisfactory rating because “he was [her] rating officer and superior.” Am. Compl. ¶ 16. Plaintiff alleges that such behavior is “not common practice and further illustrated Mr. Friedman's discriminatory and retaliatory intent against [her].” Am. Compl. ¶ 16.

Due to Mr. Friedman's and his unspecified friends' “continual verbal harassment” of Plaintiff, “both professionally and personally, ” she began weekly therapy session through the UFT MAP program to help manage anxiety and suicidal thoughts. Am. Compl. ¶¶ 17, 18. Plaintiff does not state what the “UFT MAP” program is, or any details about it.

On January 31, 2018, Plaintiff began experiencing chest pains “at a conference” and “was sent to the hospital.” Am. Compl. ¶ 19. As a result of this incident, Plaintiff requested a six-month medical sabbatical, and did not go to work from February 1, 2018 until April 25, 2018, when Plaintiff learned that Defendant denied her request. Am. Compl. ¶¶ 19-20. Plaintiff learned in October 2018 that Defendant retroactively withdrew payment for the days she had taken off (from February 1, 2018 to April 25, 2018) related to this incident.^[7] Am. Compl. ¶ 36.

On June 26, 2018, Plaintiff received an “unsatisfactory” rating for the 2017-18 school year, without being provided an “explanation or improvement sheet.” Am. Compl. ¶ 21. The rating was not based on any formal observations. Am. Compl. ¶ 21.

3. Academic Year of 2018-19

The following year, Mr. Friedman assigned Plaintiff to Mathers High School. Am. Compl. ¶ 23. There, Principal Larry Gabbard required Plaintiff to submit a time sheet that must be signed by a “point person at [her] assigned location.” Am. Compl. ¶ 24. This was a break from past practice for Plaintiff; when she asked about the new directive, Principal Gabbard told her that she must comply or she would receive an unsatisfactory rating for the year. Am. Compl. ¶ 24. Principal Gabbard also directed Plaintiff “to sit in the main office all day” and required that she report “any reason I would have leave the office, including going to the bathroom.” Am. Compl. ¶ 25. Presumably, although not pleaded, no other similarly-situated employee was required to do so.

Principal Gabbard also informed Plaintiff she “would not be needed at the East Side School” and that she should not report there unless specifically directed. Am. Compl. ¶ 26. Plaintiff does not state what the East Side School is or how it was connected to Mathers High School. Sometime after September 2018, Mr. Friedman and Principal Gabbard stopped providing Plaintiff a working space at a low-level floor and did not assign her to a location with “working elevator access.” (ECF 25 at 3-4). Plaintiff told Mr. Friedman that she was not able to walk up and down stairs, but Mr Friedman said something like, “that's where Mr. Gabbard is, so that's where you have to be.” (ECF 25 at 4). Each week, Plaintiff was required to attend weekly attendance meetings on either the fourth, fifth or seventh floor. (ECF 25 at 4). In 20182019, Principal Gabbard mandated that all “staff sign [an] attestation section on [their] time sheet, ” and specifically that it be signed by the staff of the school individuals are attending. (...