Fierro v. City of New York

591 F.Supp.2d 431

Joseph FIERRO, Plaintiff, v. The CITY OF NEW YORK, New York City Department of Education, Ronna Bleadon, former Principal, P12X, Special Education District 75, New York City Department of Education, in her individual and official capacities, Sharon Burnett, former Local Instructional Superintendent within Special Education District 75, New York City Department of Education, in her individual and official capacities, Dr. Susan Erber, former Superintendent, Special Education District 75, Citywide Programs, New York City Department of Education, in her individual and official capacities, and Bonnie Brown, former Deputy Superintendent (and current Superintendent), Special Education District 75, Citywide Programs, New York City Department of Education, in her individual and official capacities, Defendants.

No. 07 Civ. 11214(SAS).

United States District Court, S.D. New York.

July 30, 2008.

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Kathy A. Polias, Esq., Ofodile & Associates, P.C., Brooklyn, NY, for Plaintiff.

Kami Z. Barker, Assistant Corporation Counsel, NYC Law Department, Office of the Corporation Counsel, New York, NY, for Defendants.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge:

I. INTRODUCTION

Joseph Fierro brings this action against the City of New York, the New York City Department of Education ("DOE"), and certain individuals for claims arising under the New York City Administrative Code and section 1983 of title 42 of the United States Code ("section 1983"). He alleges that he was subjected to hostile work environment sexual harassment, retaliation, and the violation of his First Amendment right to free speech while employed as an assistant principal for Public School 12X ("P12X") of DOE Special Education District 75 ("District 75"). Defendants have moved to dismiss plaintiffs complaint in its entirety. For the reasons that follow, defendants' motion is granted in part and denied in part.

II. BACKGROUND

A. Facts¹

Plaintiff, a resident of New York, was employed as an assistant principal for P12X beginning in 2002.² P12X is comprised of approximately six school sites located in the Bronx, New York, with its administration primarily based at Lewis & Clark High School ("Lewis & Clark").³ Plaintiff, other assistant principals for P12X, and the Principal—defendant Ronna Bleadon—all had offices at Lewis & Clark.⁴

Plaintiff alleges that from the start of his employment, Bleadon made inappropriate comments about how handsome he looked in a suit and how her husband was jealous of plaintiff because she constantly told him what a good job plaintiff was doing.⁵ During the first two years of his employment, Bleadon also made comments about plaintiffs physical appearance in the presence of co-workers.⁶ For example, when he wore shorts to work during the summer months Bleadon commented that plaintiff had great legs and asked whether he had been working out.⁷ Bleadon also told plaintiff intimate details about her personal life, sharing her past experiences with an ex-husband.⁸

In or about the fall of 2004, Bleadon repeatedly suggested that plaintiff visit her home while her husband was on a business trip so that plaintiff could "keep her company."⁹ Bleadon directed these comments at plaintiff while at work, as well as during phone calls that she initiated after work-hours.¹⁰ Around that same time, Bleadon would "beckon [p]laintiff to her office by saying `Come see mommy' or `Come to Mama Bleadon' in front of other [a]ssistant [p]rincipals."¹¹ According to plaintiff, Bleadon's comments and advances made him feel very uncomfortable and awkward.¹²

Plaintiff alleges that he exercised his First Amendment right to free speech in or about the fall of 2004 when he refused "to participate in or facilitate [] Bleadon's campaigns to ruin the careers" of two teachers whom Bleadon did not like.¹³ Plaintiff witnessed one of the two teachers—Ms. Grey—intercede in an altercation between two students.¹⁴ Bleadon directed plaintiff to lie and state that he had seen Ms. Grey participate in the fight, but plaintiff refused to do so.¹⁵ Bleadon directed plaintiff to enter the second targeted teacher's classroom—that of Mr. Simon—and "find things for which the administration could give [that teacher] a `U' (Unsatisfactory) rating. Plaintiff observed [that teacher's] classroom and did not find anything that warranted a "U" rating. He told Bleadon same."¹⁶

As punishment for resisting her sexual advances and/or exercising his First Amendment rights, plaintiff alleges that Bleadon retaliated against him by:

(1) using profane language towards [p]laintiff in front of staff and students and making abusive and derogatory remarks to him; (2) taking away vacation days from him; (3) directing him to do manual labor and other tasks outside his job description; (4) making derogatory remarks about Italian people ... (5) taunting [p]laintiff over his learning disabilities ... (6) harshly criticizing and ostracizing [p]laintiff ... (7) questioning [his] sexuality and speaking to staff members about whether [he] was gay; (8) threatening [him] that [Bleadon] would transfer him to West Side High School ... and he wouldn't have all the comforts that he had at Lewis & Clark; (9) actually transferring him to West Side High School; and (10) falsifying lateness[ ] on [p]laintiff s attendance record and then charging him with these false latenesses in his 2005 annual evaluation.¹⁷

In the middle of the spring semester of 2005, Bleadon transferred plaintiff against his will to West Side High School ("West Side"), another P12X school site.¹⁸ Due to this transfer, plaintiff no longer had his own office, parking space, computer, and phone.¹⁹ He was separated from the other assistant principals of P12X who all remained at Lewis & Clark.²⁰ Moreover, plaintiff had to travel a greater distance from his home to West Side than to Lewis & Clark.²¹ Following his transfer, Bleadon repeatedly called plaintiff at West Side to ask him how he liked the transfer, commenting to plaintiff that he no longer had the "same comforts that you had here."²² When plaintiff responded that he did not understand why he was transferred and no longer had his own office, Bleadon responded, "Well, you think about it."²³ When plaintiff returned to Lewis & Clark for routine meetings with Bleadon, she would ask him whether he missed her or whether he was "ready to behave."²⁴

In or about August 2005, plaintiff complained to defendant Sharon Burnett, a Local Instructional Superintendent in District 75 who supervised P12X.²⁵ Plaintiff informed Burnett that he had been sexually harassed by Bleadon and felt that he had been retaliated against for rejecting her advances.²⁶ Burnett spoke with defendants Bonnie Brown and Dr. Susan Erber, Deputy Superintendent and Superintendent of District 75, respectively, regarding plaintiffs complaints.²⁷ Burnett then informed plaintiff that he was being transferred to P753X—a District 75 high school located in Brooklyn that was known to be one of the most dangerous schools in New York state.²⁸

Plaintiff protested that he had previously been stabbed twice during earlier placements at dangerous schools and did not want to be transferred.²⁹ Moreover, plaintiff only had two more years until he was eligible for tenure at P12X and a transfer would significantly disrupt his progress. Nevertheless, plaintiff was transferred to P753X "in retaliation for complaining about [ ] Bleadon's sexual harassment of him and about her retaliation against him for rebuffing her advances."³⁰

As a result of Bleadon's sexual harassment and defendants' retaliatory acts, plaintiff alleges that he suffered mental and physical distress, and he incurred costs associated with medical visits and medication.³¹ Additionally, he took a medical leave from work in the spring of 2006, and lost twenty days worth of wages.³² Plaintiff further alleges that, due to his distress, he was unable to undergo training in early 2005 to work with autistic children. This delay prevented him from obtaining employment in this field until very recently.³³

Plaintiff alleges that in retaliation for the filing of the instant suit the City of New York, the DOE, and Brown have pressured the principal of District 75—his current supervisor—to terminate him.³⁴ Specifically, the principal advised plaintiff that he did not think that plaintiff would be retained as a teacher for the next academic year, despite the fact that two teachers with less seniority were not so advised.³⁵

B. Procedural History

Plaintiff filed suit in the Supreme Court of the State of New York. That suit was subsequently removed to this Court by the City of New York on the ground that federal question jurisdiction exists over the section 1983 claims pursuant to 28 U.S.C. § 1331. Defendants now move to dismiss the Complaint in its entirety.

III. APPLICABLE LAW

A. Rule 12(b)(6)—Motion to Dismiss

When deciding a defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must "accept as true all of the factual allegations contained in the complaint"³⁶ and "draw all inferences in the light most favorable to the non-moving party ...."³⁷ Nevertheless, the court need not accord "[l]egal conclusions, deductions or opinions couched as factual allegations ... a presumption of truthfulness."³⁸

In deciding a motion to dismiss, the court is not limited to the face of the complaint, but "may [also] consider any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference, ... and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit."³⁹ However, "before materials outside the record may become the basis for a dismissal ... it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document."⁴⁰

"Federal Rule of Civil Procedure 8(a)(2) requires ... `a...