Kirk v. Mount Vernon City Sch. Dist.

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RYAN KIRK, Plaintiff, v. MOUNT VERNON CITY SCHOOL DISTRICT, Defendant.

No. 23-CV-7441 (CS)

United States District Court, S.D. New York

August 13, 2024

Appearances: Neil M. Block Ingerman Smith LLP Hauppauge, New York Counsel for Defendant

OPINION & ORDER

CATHY SEIBEL, U.S.D.J.

Before the Court is the unopposed motion to dismiss of Defendant Mount Vernon City School District (the “District”). (ECF No. 13.) For the reasons set forth below, Defendant's motion is GRANTED.

I. BACKGROUND

The Court accepts as true the facts, but not the conclusions, set forth in Plaintiff's Second Amended Complaint (“SAC”). (ECF No. 12.)

A. Facts

In September 2017, the District hired pro se Plaintiff Ryan Kirk to teach social studies at the Denzel Washington School of the Arts (“DWSA”). (SAC ¶ 7.) DWSA's principal Evelyn Collins, assistant principals Andrea Thomas and Charles Brown, and humanities department chairperson Kerry MacEntee supervised Plaintiff during his employment. (Id. ¶ 9.) In the District, new teachers serve a four-year probationary period, and at the end of that term, the District either (1) offers tenure, (2) requires an additional probationary year or (3) terminates employment. (Id. ¶ 18.) On all observations conducted by the District over his first three years of probation, Plaintiff earned ratings of Effective or Highly Effective, and his ratings increased consistently over the years. (See id. ¶¶ 10, 13.) Plaintiff also had the highest student state exam pass rate of any social studies teacher in the District; during the 2018-2019 school year, principal Collins nominated Plaintiff to appear in the District's “Teacher Feature,” which recognizes outstanding teachers; and Plaintiff never received a disciplinary letter. (Id. ¶¶ 11-12, 14.)

Collins was responsible for making tenure recommendations to superintendent Kenneth Hamilton, who would make the final recommendation to the District's school board. (Id. ¶ 18.) Plaintiff alleges upon information and belief that the school board “virtually always” makes its decisions based on the superintendent's recommendation, and that superintendent Hamilton always followed Collins's recommendations. (Id.)

On January 15, 2021, Plaintiff was diagnosed with rectal cancer, and he informed Collins of his diagnosis that month. (Id. ¶¶ 15-16.) On or about February 11, 2021, Plaintiff requested an accommodation to work from home, which the District granted on or about February 13, 2021. (See id. ¶ 17.) Plaintiff continued to teach his full courseload while working remotely. (See id. ¶¶ 17, 20.)

Within a month of learning about Plaintiff's diagnosis, Collins observed Plaintiff, despite not having observed him since his first year of teaching at DWSA. (Id. ¶ 19.) Plaintiff alleges upon information and belief that Collins and the District observed him to find a pretextual excuse to deny him tenure. (Id.) On March 4, 2021, Collins called Plaintiff, informing him that she would not recommend him for tenure and instead would recommend him for an additional year of probation. (Id. ¶ 20.) When Plaintiff asked why, Collins responded, “I have been advised not to recommend you for tenure because you will be out until June.” (Id.) During that conversation, Plaintiff complained to Collins that her reasoning was “discriminatory and unfair.” (Id.) Plaintiff alleges upon information and belief that before the phone call, Collins signed a form recommending him for an additional probationary year, and that after the call, she signed a separate form recommending him for termination, purportedly in retaliation for raising concerns about the alleged discriminatory conduct. (Id. ¶ 21.) On both forms, Collins indicated that she did not consider the observation evaluations from Plaintiff's first year, and she included an incomplete observation evaluation - both in violation of District policy. (Id. ¶ 22.)

On March 8, 2021, assistant principal Thomas and humanities chairperson MacEntee contacted Plaintiff and hastily scheduled a Zoom call to discuss the recommendation for another probationary year. (Id. ¶ 23.) They informed Plaintiff that the recommendation was based on concerns regarding Plaintiff's professional responsibilities outside of classroom preparation and teaching, and provided multiple reasons for the decision, none of which had previously been discussed with Plaintiff. (See id. ¶¶ 23-25.) Plaintiff alleges that, despite having signed the form recommending termination days earlier, Collins stated in a sworn affidavit that she decided to recommend that Plaintiff be terminated after he was “confrontational” during the March 8 Zoom call with Thomas and MacEntee. (Id. ¶ 26.)^[1]

On or about March 22, 2021, Plaintiff spoke with Thomas and MacEntee via Zoom, and they informed Plaintiff that his employment was to be terminated. (Id. ¶ 30.) Sometime thereafter, the assistant superintendent for human resources notified Plaintiff that he could resign to “preserve future employment prospects” or be involuntarily terminated. (Id.) Plaintiff chose to resign from his position. (Id.; see ECF No. 15-2 at 19.)

B. Procedural History

Plaintiff filed his initial complaint on August 22, 2023, bringing discrimination and retaliation claims under Title I of the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq. (the “ADA”), and the New York State Human Rights Law, N.Y. Exec. L. § 290 et seq. (the “NYSHRL”). (See ECF No. 1 ¶¶ 1, 33-44.) On September 1, 2023, Plaintiff filed an amended complaint, alleging the same claims and attaching the May 31, 2023 Notice of Right to Sue issued by the EEOC. (See ECF No. 3 ¶¶ 1, 33-44; see ECF No. 3-1.) On October 16, 2023, the District filed a pre-motion letter in anticipation of its motion to dismiss. (ECF No. 10.) At the pre-motion conference, the Court granted Plaintiff leave to file a Second Amended Complaint. (Minute Entry dated Nov. 27, 2023.) On December 21, 2023, Plaintiff filed the SAC, which is the operative complaint, advancing the same four claims. (SAC ¶¶ 33-44.) On January 29, 2024, the District filed the instant motion. (ECF No. 13.) Plaintiff did not file any response. On April 19, 2024, the Court ordered that if Plaintiff did not contact the Court by April 29, 2024, the motion would be deemed fully submitted. (ECF No. 17.) Plaintiff has not contacted the Court or opposed the motion.

II. LEGAL STANDARD

“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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).^[2] “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. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. While Federal Rule of Civil Procedure 8 “marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79.

In considering whether a complaint states a claim upon which relief can be granted, the court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth,” and then determines whether the remaining well-pleaded factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. at 679. Deciding whether a complaint states a plausible claim for relief is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘shown' - ‘that the pleader is entitled to relief.'” Id. (quoting Fed.R.Civ.P. 8(a)(2)).

While Plaintiff is pro se, he informed the Court at the pre-motion conference, upon inquiry, that he has a law degree. He therefore he does not receive any special solicitude. See Bank v. Sirlin, 830 Fed.Appx. 690, 690 (2d Cir. 2020) (summary order) (“Bank is an attorney representing himself and thus he is not entitled to special solicitude.”); Colliton v. Bunt, 709 Fed.Appx. 82, 83 (2d Cir. 2018) (summary order) (pro se litigant, a former lawyer, was not entitled to special solicitude); Aretakis v. Caesars Ent., No. 16-CV-8751, 2018 WL 1069450, at *5 (S.D.N.Y. Feb. 23, 2018) (“Although Plaintiff is proceeding pro se, he was once a practicing lawyer. He therefore is not entitled to the solicitude that courts often afford pro se litigants.”); see also Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (“[A] lawyer representing himself ordinarily receives no [special] solicitude at all.”).^[3]

A plaintiff's failure to oppose a motion to dismiss “does not, without more, justify dismissal.” James v. John Jay Coll. of Crim. Just., 776 Fed.Appx. 723, 724 (2d Cir. 2019) (summary order). “[T]he sufficiency of a complaint is a matter of law that the district court is capable of determining based on its own reading of the pleading and knowledge of the law.” Goldberg v. Danaher, 599 F.3d 181, 184 (2d Cir. 2010).

When deciding a motion to dismiss under Rule 12(b)(6):

a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated

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