Philbert v. City of New York

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SHAKEMA PHILBERT, Plaintiff, v. CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION, CAMILLE FORBES, and KERIANNE HARRISON, Defendants.

No. 21 Civ. 3119 (PAE)

United States District Court, S.D. New York

January 7, 2022

OPINION & ORDER

PAUL A. ENGELMAYER, DISTRICT JUDGE

This case involves discrimination and retaliation claims by a former New York City elementary school teacher. Shakema Philbert worked for the New York City Department of Education ("DOE") between 2011 and 2019. Philbert sues the City of New York (the "City"), DOE, and two individuals affiliated with DOE who supervised her (together "defendants") under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), New York State Human Rights Law, New York Exec Law § 290 et seq. ("NYSHRL"), New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq. ("NYCHRL"), and common law.

Pending now is defendants' motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).^[1]For the following reasons, the Court grants the motion in part and denies it in part. Philbert's ADA retaliation claim is the sole claim to survive.

I. Background

A. Factual Background^[2]

1. The Parties

Philbert is an African-American woman who lives in New York. She has experienced chronic migraines and, as a result of a 2017 workplace incident described below, an injured left hand. SAC ¶¶ 8, 14, 21. She began working at DOE in September 2011. Id. ¶ 13.

The City is a municipality duly organized and existing under New York State law.^[3] Id. ¶ 9. DOE was and is an entity of the City. Id. ¶ 10. Camille Forbes is the principal at Public School 206 Jose Celso Barbosa ("PS 206"), which DOE runs. Id. ¶ 11. Kerianne Harrison is the principal at Public School 194 Countee Cullen ("PS 194"), also run by DOE. Id. ¶ 12.

2. 2011-2015: Philbert's Early Career at ¶ 206

In September 2011, Philbert began work at ¶ 206, as an elementary school teacher working with special education students for the 2011-2012 school year. Her supervisor was Forbes. Id. ¶ 13.

At this time, Philbert experienced chronic migraines, which would cause "visual and speech impairments, difficulty hearing [and] sleeping, concentration issues, sensitivity to light, nausea, fatigue, and pains associated with throbbing and pulses." Id. ¶ 14. In or about November 2014, Philbert told Forbes about her migraines and her symptoms. Id. ¶ 15. Philbert had several doctor's appointments and asked PS 206 for accommodations. Id. ¶ 16.

On February 13, 2015, Philbert requested leave from PS 206 for surgery to alleviate her migraines. Id. ¶ 17. On February 18, 2015, she "underwent an angiogram and endovascular treatments of the right transverse sigmoid junction and coiling of the diverticula." Id. ¶ 18. On February 23, 2015, Philbert's doctor cleared her to return to work on March 4, 2015. Id. ¶ 19. On both February 13 and February 23, 2015, Philbert emailed Forbes about her condition and leave, and submitted a doctor's note when she returned to work. Id. ¶ 74. On June 9, 2015, Philbert informed Forbes that stress affected her health and disability, namely, by causing her migraines. Id. ¶ 20.

3. 2017-2018: Discrimination and Harassment at ¶ 206

a. Assault on Philbert

On April 7, 2017, a student at ¶ 206 assaulted Philbert. Id. ¶ 21. Her ulnar and radial collateral ligaments in her left thumb were torn, and a muscle in her left hand was strained. Id. The SAC alleges that, as a result of these injuries, Philbert's abilities to grip, hold things, and use her left hand have been negatively affected. Id.

b. Forbes's representations regarding tenure

During the 2017-2018 school year, Forbes allegedly represented, in two ways, that Philbert would be granted tenure. Id. ¶ 23. First, on April 26, 2017, Forbes emailed Philbert about a visit by the deputy superintendent and said that the visit would be "a good opportunity to assist [Philbert] on being granted tenure" for that year. Id. Second, in or around mid-June 2017, Forbes met with Philbert and a "meet and tenure coach," Millicent Goodman, "to discuss the best way for [Philbert] to obtain tenure" in that year. Id. c. Philbert 's requested claims and leave

Although Forbes was notified of the assault and filed a report about the incident, Philbert's own report "was delayed due to an administration failure" to follow protocols by providing or completing a DOE comprehensive injury report. Id. ¶ 22. Those reports are used to determine Line of Duty Injury ("LODI") eligibility. Id. On May 1, 2017, Philbert was given the relevant form. Id. In or about June 2017, Philbert filed a notice of claim against DOE and the City for her hand injuries. Id. ¶ 24. She ultimately chose not to pursue that claim. Id.

Philbert went to physical therapy in the months following her injury. Id. ¶ 25. On or about August 18, 2017, she had surgery, which made her unable to work until October 5, 2017. Id. In or about September 2017, Philbert filed a LODI claim for her hand injuries, which was denied by DOE, allegedly without justification. Id. ¶ 26. As a result of the denial, Philbert could not get her therapy sessions covered by insurance, which prolonged her rehabilitation; she lost wages while on medical leave; her insurance coverage lapsed because she was no longer on the payroll; and she paid out-of-pocket for medical expenses. Id. ¶ 27. After the initial denial, she continued to be denied coverage, and could not access healthcare. Id. ¶ 28. Philbert also requested LODI leave from September 5 to October 4, 2017, which was also denied. Id. ¶ 29.

d. Retaliation by Jimenez and Forbes for claims filed

In or about October 2017, after Philbert filed a notice of claim for the assault and its accompanying injuries, defendants allegedly retaliated against and harassed her. Id. ¶¶ 23, 30. Specifically, in October 2017, and "on several occasions thereafter," PS 206's assistant principal Yaira Jimenez moved the furniture in Philbert's classroom without Philbert's permission and for no reason. Id. ¶ 30. After Jimenez moved the furniture, Philbert had to put the furniture back, but because of her "injuries and disabilities," could do so only with the help of others. Id. The SAC alleges that similarly situated teachers without disabilities "were not treated this way and did not have their furniture moved." Id.

On or about October 8, 2017, Philbert complained to Forbes about the discrimination and harassment she claimed to be experiencing, emailing Forbes to "express[] her frustration" with Jimenez's moving the classroom furniture. Id. ¶ 31. Philbert explained that she needed the classroom set up a certain way to accommodate the injuries to her hand, and that Jimenez's conduct could interfere with Philbert's hand's rehabilitation. Id. Even so, Jimenez continued to move Philbert's classroom furniture, including on November 3 and 14, 2017. Id.

Also on October 8, 2017, Philbert emailed Forbes that Philbert's doctor had extended her medical leave. On October 9, 2017, Philbert went out on medical leave because of "her injuries and disabilities [of] her hand," exacerbated by her moving of the furniture. Id. ¶ 32. On October 20, 2017, Philbert received a letter from Forbes stating that Philbert had "effectively abandoned her teaching position." Id. ¶ 33. She remained out on medical leave until November 2, 2017. Id. ¶ 32.

On November 14, 2017, Philbert met with Forbes and Jimenez. Id. ¶ 34. She reiterated "many of her frustrations from the October 8, 2017 email," including that the furniture movement had impeded her hand's recovery, and asked Forbes and Jimenez to stop harassing her. Id. Philbert was told that she needed to start packing up from her first-floor classroom, in order to move to the third floor. Id. Philbert asked Jimenez to explain why Jimenez kept moving the furniture, and immediately thereafter "left the meeting in tears." Id.

Philbert emailed and complained to her union representative about the alleged discrimination and harassment she was experiencing. Despite Philbert's complaints, "no action was taken to prevent any further discrimination and harassment," and, as described, discriminatory acts therefore were taken "in retaliation for [Philbert] seeking claims and complaining about treatment connected to her hand injury." Such conduct, the SAC alleges, created a hostile work environment. Id.

e. Further discriminatory acts

The SAC alleges several discriminatory acts between late 2017 and early 2018. During this period, Forbes changed the locks on Philbert's classroom and refused to give her keys. Id. ¶ 35. Philbert was also required to cover other classes on five dates between November 3, 2017 and January 8, 2018. In contrast, similarly situated teachers who did not have disabilities "had keys to their classroom and were not forced to 'float' from class to class." Id.

On November 3, 2017, Philbert was threatened with disciplinary action, and Forbes told her that she would have to cover for another teacher. Id. ¶ 41. Because of the discrimination and hostile work environment that Philbert was experiencing, she took an "unpaid restoration of health leave of absence" from November 15 to December 21, 2017. Id. ¶ 36.

On or about January 17, 2018, Philbert got a letter from the school secretary, threatening disciplinary action and requiring her to meet with Forbes in five days. Id.\A\. At the January 22, 2018, meeting, Philbert met with Forbes, Jimenez and the union chapter leader, "Diaz," who all took notes. Id. Philbert was asked about her absences and why she left early on November 14, 2017. Id. Philbert was told she was permanently reassigned to a middle school classroom...