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

JACQUELINE CLARKE, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Defendants.

18-CV-06783 (AMD) (SJB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

January 13, 2021

MEMORANDUM DECISION AND ORDER

ANN M. DONNELLY, United States District Judge:

On November 29, 2018, the plaintiff, Jacqueline Clarke, brought this action alleging violations of 42 U.S.C. §§ 1981 and 1983, the Age Discrimination in Employment Act of 1967, the Fourteenth Amendment, and First Amendment retaliation against the New York City Department of Education and three DOE employees. (ECF No. 1.)¹ The defendants moved to dismiss the amended complaint on April 22, 2019. (ECF No. 19.) I heard oral argument on March 10, 2020, during which I granted the plaintiff's request to file a second amended complaint; she did so on April 30, 2020. (ECF No. 31.) Now before the Court is the defendant's motion to dismiss the second amended complaint. (ECF No. 32.) For the following reasons, the defendants' motion to dismiss is granted.

BACKGROUND²

The plaintiff is a black woman over 50 years old who was born in Jamaica, West Indies. (ECF No. 31 ¶¶ 6-7.) In 2003, she started working for the DOE as a substitute teacher. (Id.¶ 18.) During her time at the DOE, she became a permanent employee and attained tenure. (Id.) She has worked at multiple schools, and currently works at Frederick Douglas Academy VI High School. (Id. ¶ 20.)

The plaintiff's complaint is based on her time as a teacher at Intermediate School 162—The Willoughby School—in Brooklyn. The plaintiff began teaching at I.S. 162 in 2005, and she claims that she did not receive any "negative job performance evaluations" until Principal Amanda Lazerson's arrival in September of 2015. (Id. ¶¶ 19, 21.)³ According to the plaintiff, Principal Lazerson "singled out older teachers and teachers of color for excessive supervision" in order to jeopardize their careers. (Id. ¶ 23.) The principal and two of her subordinates, Jessica Mazzarelli and Patrick Browne, worked together to write "negative letters to the files of the targeted teachers, giv[e] them unfavorable evaluations and job performance ratings, and pursu[e] bogus . . . proceedings against them." (Id. ¶¶ 23-24.)

While Principal Lazerson was "unwelcoming" towards older teachers and teachers of color immediately upon her arrival, the plaintiff claims that several events in the 2016/2017 school year spawned progressive hostility. (Id. ¶¶ 22, 34.) First, Principal Lazerson invited a friend to sell AFLAC insurance to teachers. (Id. ¶ 35.) The plaintiff told her colleagues that she thought "the AFLAC situation" was inappropriate, but did not raise her concerns to anyone else. (Id. ¶ 39.) Principal Lazerson's supervisors learned of the on-campus AFLAC sales through an anonymous report and reprimanded her. (Id. ¶ 37.) According to the plaintiff, Principal Lazerson complained that "she was 100% certain that a 'senior teacher' reported her[.]" (Id. ¶ 38.)

That same year, Principal Lazerson invited another friend to lead sessions on using state test data to improve performance. (Id. ¶ 41.) Some of the teachers, including the plaintiff, confronted the expert and questioned the utility of the advice. (Id. ¶ 42.) The sessions were subsequently canceled, and Principal Lazerson allegedly "felt affronted." (Id. ¶ 43.) Then, on October 27, 2016, Principal Lazerson scheduled the plaintiff for four teaching periods in a row without a bathroom break—in violation of the union contract. (Id. ¶ 44, 119.) The plaintiff filed a grievance with the union. (Id. ¶ 44.)

Throughout the 2016/2017 school year, the plaintiff claims that she suffered increasing animosity at the hands of Principal Lazerson and her subordinates, Ms. Mazzarelli and Mr. Browne. They forced her to address "minor" issues during her lunch break; they reprimanded her in front of students for not enforcing school rules; they "interrupted" her at her after school job; and they sent her outside "in 45 degree weather" to supervise middle school recess by herself. (Id. ¶¶ 116-18, 126, 128, 132, 134-38.) At one point, Principal Lazerson called the plaintiff into her office to ask her "what [was] wrong with [her] face." (Id. ¶ 109.) She also told the plaintiff that she was not "engaging enough" during professional development meetings, and singled her out for leaving a professional development meeting to use the bathroom. (Id. ¶¶ 111-13, 123-25.) The plaintiff was the subject of unannounced observations, and received several disciplinary letters based on "untrue" allegations. (Id. ¶¶ 47, 123, 133, 142, 146, 150.) She alleges that the defendants took these actions "to give [her] a bad record and set [her] up for further disciplinary action." (Id. ¶ 150.)

The plaintiff's work environment did not improve in the 2017/2018 school year. The plaintiff, five other African American teachers, and about twenty-seven white and hispanic teachers attended a professional development meeting at which Ms. Mazzarelli discussed a paperentitled "The Story of the Five Monkeys: that's the way it has always been done." (Id. ¶¶ 99.) The plaintiff believed that Ms. Mazzarelli's discussion was racist, particularly "[g]iven the historic association of monkeys and African Americans by the dominant American society." (Id. ¶ 101.)

The plaintiff's evaluations fell "drastically" under Principal Lazerson's leadership. (Id. ¶ 47.) In the 2015/2016 school year, the plaintiff received an overall rating of "effective," with 25 "effective" marks and 6 "developing" marks in various components. (Id. ¶ 46.) In the 2016/2017 school year, the plaintiff again received an overall rating of "effective," but lower component marks: 10 "effective" marks, 13 "developing" marks, and 1 "ineffective" mark. (Id. ¶ 47.) By the 2017/2018 school year, the plaintiff's overall rating had dropped to "developing;" she received 14 "ineffective" marks, 10 "developing" marks, and only 1 "effective" mark. (Id. ¶ 30, 48.) In May of 2018, the plaintiff was placed on an "improvement plan," and on September 24, 2018, the defendants commenced a Section 3020-a proceeding against her even though she did not have the required two consecutive years of "ineffective" ratings. (Id. ¶¶ 28-29.)⁴ The Section 3020-a Specifications charged the plaintiff with "incompetent and inefficient service, neglect of duty and unwillingness and/or inability to follow procedures and carry out normal duties" during the past two school years. (ECF No. 34-1 at 2.)

The plaintiff asked for and received a reassignment to her current school effective August 7, 2018. Nevertheless, she claims that Principal Lazerson and her subordinates have worked together to "create the necessary paperwork to support . . . adverse actions against" seniorteachers and teachers of color. (Id. ¶¶ 50, 54, 65.) She claims that the defendants have harassed or forced retirement on numerous teachers over the age of 40 and teachers of color. (Id. ¶ 59.) Meanwhile, "[s]ome of the younger or [w]hite teachers hired under the leadership of [Principal] Lazerson" are secure in their jobs. (Id. ¶ 61.)⁵

The plaintiff filed grievances against Principal Lazerson but to no avail. (ECF No. 31 ¶ 62.) She filed an age discrimination complaint against Principal Lazerson with the New York State Division of Human Rights and United States Equal Employment Opportunity Commission in March of 2018. (Id. ¶ 66.) On September 4, 2018, the NYSDHR found no probable cause to believe that there was age discrimination and dismissed the complaint. (Id. ¶ 67.) The EEOC issued a Notice of Right to Sue letter on October 29, 2018, and the plaintiff served the Department of Education with a Notice of Claim pursuant to Education Law § 3813 on November 2, 2018. (Id. ¶¶ 68-69.) She commenced this action on November 29, 2018, and the defendants withdrew all Section 3020-a claims on April 2, 2019. (ECF No. 34-2 at 2.)

STANDARD OF REVIEW

To survive a motion to dismiss pursuant to Rule 12(b)(6), "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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). The "plausibility standard is not akin to a'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted).

Discrimination complaints are subject to a "lowered standard of review" at the motion to dismiss stage. Ingrassia v. Health & Hosp. Corp., 130 F. Supp. 3d 709, 719 (E.D.N.Y. 2015). A plaintiff need not plead each element of a prima facie case to withstand a motion to dismiss. Vega v. Hempstead Union School Dist., 801 F.3d 72, 84 (2d Cir. 2015). However, she must still provide "a short and plain statement of the claim that shows that [she is] entitled to relief and that gives the defendants fair notice of [her] claims . . . and the grounds upon which those claims rest." Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007).

At the motion to dismiss stage, the court "is generally limited to the facts as presented within the four corners of the complaint, to documents attached to the complaint, or to documents incorporated within the complaint by reference." Williams v. Time Warner Inc., 440 F. App'x 7, 9 (2d Cir. 2011) (quoting Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002)). The court may also consider any "documents attached to the complaint as an exhibit or incorporated in it by reference, . . . matters of which judicial notice may be taken, or . . . documents either in [the] plaintiff['s] possession or of which [the] plaintiff[ ] had knowledge and relied on in bringing suit," as long as the plaintiff...