Miranda v. S. Country Cent. Sch. Dist.

461 F.Supp.3d 17

Lauren MIRANDA, Plaintiff,

v.SOUTH COUNTRY CENTRAL SCHOOL DISTRICT, Joseph Giani, Nelson Briggs, Tim Hogan, Erika Della Rosa, Cheryl A. Felice, Regina Hunt, Lisa Di Santo, Anthony Griffin, Carol Malin, Jack Nix, Chris Picini, and Christine Flynn, Defendants.

20-cv-104 (BMC)

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

Signed May 20, 2020

Filed May 21, 2020

John W. Ray, John Ray & Associates, Miller Place, NY, for Plaintiff.

Steven C. Stern, Chelsea Ella Weisbord, Sokoloff Stern LLP, Carle Place, NY, for Defendants.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

The question raised in this action is whether a female public-school teacher can be fired because a semi-nude picture of her became available to her employer, the school district. Presently before me is defendants’ motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The motion is granted in part and denied in part.

BACKGROUND

Until the termination of her employment on April 26, 2019, plaintiff was a probationary middle school teacher for the South Country Central School District, a public education provider. In January 2019, defendants came into possession of a semi-nude photo of plaintiff. The photograph was a selfie that plaintiff had taken on her cellphone and sent to a former boyfriend, a male teacher in defendants’ school district who she had been dating. The photograph depicted plaintiff's face and uncovered breasts. When questioned by school officials, she admitted that she had taken the picture several years ago, and that her former boyfriend was the only person to whom she had sent it. Defendants told plaintiff that they believed her when she denied sending the photo to any students and there was nothing suggesting that she had sent the photo to anyone else but her former boyfriend. Nevertheless, plaintiff was immediately suspended from teaching and directed to remain at home while the school district investigated. On January 31, 2019, defendants notified plaintiff that she was being discharged because of the photo depicting her as a "topless female." In addition, defendant Joseph Giani, the school district's Superintendent, commented to plaintiff that she would have received tenure, but that she had to be terminated due to the image portraying her "female breasts." The male teacher involved was never disciplined. Plaintiff claims that the "true reason for the adverse employment action was unlawful discrimination" because of her gender. The complaint contains seven claims for relief. The first is under Title IX, Education Amendments of 1972, 20 U.S.C. § 1681 et seq. , for gender discrimination. The second claim is under 42 U.S.C. § 1983 for the deprivation of plaintiff's unspecified "civil rights". The third alleges a Fourteenth Amendment Equal Protection violation under two theories: gender discrimination in public employment and a "class-of-one" theory. The fourth and fifth raise similar allegations of gender discrimination under New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. , and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, respectively. The sixth claim alleges a conspiracy under 42 U.S.C. § 1985(3) to violate plaintiff's civil rights. The seventh claim is under 42 U.S.C. § 1988 for attorney's fees.¹

DISCUSSION

I. Federal Claims

A. Standard of Review

When determining the complaint's sufficiency, the Court assumes a plaintiff's well-pleaded factual allegations to be true and draws all reasonable inferences in the plaintiff's favor. Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 113 (2d Cir. 2013). The Court remains mindful however that a plaintiff is required to plead enough facts "to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Determining 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. at 679, 129 S.Ct. 1937. Reciting bare legal conclusions is insufficient, and "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.

B. Lack of Comparators

Defendants first contend dismissal is warranted because plaintiff failed to point to specific comparators in her complaint, by which I suppose they mean male teachers who were not fired for taking a shirtless photograph. However, the Second Circuit has noted that an inference of discrimination may be drawn either from (1) direct evidence of discriminatory intent, or (2) a showing by plaintiff that "[she] was subjected to disparate treatment ... [compared to persons] similarly situated in all material respects to herself." Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (internal quotations and citations omitted). In other words, a showing of disparate treatment through comparators, while a common method of establishing an inference of discriminatory intent, is only one way to discharge that burden. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001).

Comments overtly suggesting bias against female employees by individuals involved in the decision to terminate a plaintiff may satisfy the minimal pleading burden for discrimination claims at the motion to dismiss stage. See Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996) ("The circumstances that give rise to an inference of discriminatory motive include actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus."); Conforti v. Sunbelt Rentals, Inc., 201 F. Supp. 3d 278, 298–99 (E.D.N.Y. 2016) (comments by decisionmakers weeks prior to termination suggesting they were biased against female employees sufficient to give rise to an inference of gender discrimination). This is a case where plaintiff has alleged direct evidence of discriminatory intent. No comparators are needed.

C. Validity of Plaintiff's Legal Theory

A plaintiff who claims sex discrimination in public employment in violation of the Fourteenth Amendment's Equal Protection Clause may bring suit pursuant to 42 U.S.C. § 1983. Naumovski v. Norris, 934 F.3d 200, 212 (2d Cir. 2019). The basic pleading elements of such claims, whether brought under Title VII or § 1983, are similar: a plaintiff claiming disparate treatment under either statute must plausibly allege that she suffered an "adverse employment action" taken "because of her sex." Id. ² A § 1983 claim can be brought only against an individual who is personally responsible for the discrimination and thus the statute does not permit vicarious liability. See Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015).

Here, accepting plaintiff's allegations as true, she was fired despite her denial that she had sent the photo to any student and the lack of evidence suggesting she had ever disseminated it to anyone else but the male teacher who she was dating at the time. Before the revelation of the image, there was no reason for defendants to terminate plaintiff's employment.

This raises the question: can a school district treat a female teacher's breasts differently than a male teacher's, at least in a school setting? A law that distinguishes employees on the basis of sex is compatible with the Equal Protection Clause if the classification serves important governmental objectives and the "discriminatory means are substantially related to the achievement of those objectives." United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). It is axiomatic, however, that many gender-based classifications will not pass constitutional muster. See Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) (law giving mandatory preference to males over females, merely to accomplish the elimination of hearings on the merits, was "the very kind of arbitrary legislative choice forbidden" by the Equal Protection Clause); see also U.S. v. Virginia, 518 U.S. at 533, 116 S.Ct. 2264 ("The justification must be genuine, not hypothesized or invented post hoc in response to litigation.").

In Tagami v. City of Chicago, 875 F.3d 375, 379 (7th Cir. 2017), as amended (Dec. 11, 2017), the Seventh Circuit held that dismissal at the pleading stage was appropriate in a challenge to a public indecency ordinance. The Court of Appeals relied upon Barnes v. Glen Theatre, Inc., 501 U.S. 560, 568, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), which had upheld a similar public-nudity ban based on the law's history and tradition:

[T]he statute's purpose of protecting societal order and morality is clear from its text and history. Public indecency statutes of this sort are of ancient origin and presently exist in at least 47 States. Public indecency, including nudity, was a criminal offense at common law.... Public nudity was considered an act malum in se. Public indecency statutes ... reflect moral disapproval of people appearing in the nude among strangers in public places....

This and other public indecency statutes were designed to protect morals and public order. The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation.

Id. (citation omitted). The interest at stake in Barnes was the "societal disapproval of nudity in public places and among strangers," id. at 572, 111 S.Ct. 2456, so the prohibition "[was] not a means to some greater end, but an end in itself ...." Id.

This shows that disparate treatment between the breasts of a man and a woman may survive equal protection challenges. The Second Circuit affirmed such a distinction when it sustained an adult entertainment zoning amendment that applied to topless...