Ruiz v. Armstrong

Attorneys for Plaintiff

The Landau Group

Attorneys for Defendants

The NYC Law Dept., Labor & Employment Div.

Katherine A. Levine, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers/Numbered
Notice of Motion and Motion to Dismiss with Accompanying Memorandum, Affidavits and Exhibits	1
Memorandum of Law in Opposition	2
Memorandum of Law in Reply	3
Supplemental Brief in Support of Defendants' Motion to Dismiss	4

Plaintiff Joseph Ruiz ("plaintiff" or "Ruiz") was terminated from his position as teacher at the Nathaniel Hawthorne Middle School ("Hawthorne") on May 23, 2015. He claims that the various defendants employed by the NYC Department of Education ("DOE") and the DOE itself ^[1] violated the New York State Human Rights Law ("SHRL") and the New York City Human Rights Law ("CHRL") by subjecting him to a hostile work environment and then engaging in discrimination by terminating him because of his national origin race. He also claims that he was subjected to selective enforcement in violation of the due process clause of the 14th amendment to the U.S. Constitution and that the defendants committed various other torts. Defendants now move to dismiss pursuant to CPLR 3211 (a)(7) for failure to state a cause of action.

This case had a number of procedural twists before the court including plaintiff's motion for a default judgment and defendant's subsequent motion to dismiss for statute of limitations which precluded this court from even considering the instant motion to dismiss pursuant to CPLR 3211(a)(7). By decision dated September 28, 2020, this court set forth the procedural history, including the DOE's removal of the case to federal court, the parties stipulation to remand the case back to state court, defendants failure to answer the original or amended complaint which led to plaintiff's motion for a default judgment, and defendant's subsequent motion to dismiss the complaint pursuant to CPLR §3211(a)(5) based upon the statute of limitations and 3211(a)(7). This court ultimately vacated the default judgment based upon its finding that defendants had a reasonable excuse for failing to answer the amended complaint and had set forth potentially meritorious defenses.

The court also found, and defendants conceded that CPLR §3211(e) precluded defendants from bringing a motion to dismiss based upon statute of limitations since such defense had to be brought before or at the time the answer was required to be served and any defense based upon 3211(a)(5) is waived unless raised in a timely motion or in the responsive pleading. The case therefore proceeded solely on the §3211(a)(7) motion.

In support of his hostile work environment claim, Plaintiff asserts that his supervisors constantly harassed him over minor instances that did not warrant discipline, and that they repeatedly called him for counseling regarding performance concerns. He claims that many of these allegations were "absurd and discriminatory" although not once did plaintiff allege that his supervisors mentioned his national origin. On October 2, 2014, plaintiff met with Assistant Principal ("A.P.") Richard Schaefer and defendant A.P. Lisa Perlstein ("Perlstein") concerning his telling his class that he had spent the night with his girlfriend at the hospital after introducing her to fried food, since he was not supposed to share personal information with his students. By letter dated October 7, 2014, A.P. Schaefer memorialized his criticisms of Ruiz and instructed him that he should not share his personal experiences with the class and should maximize his classroom instruction time Schaefer concluded that Ruiz had used poor judgment and that failure to comply with these expectations could be considered an act of insubordination.

On November 14, 2014, Perlstein called Ruiz into a meeting to discuss Ruiz's failure to notify a math teacher two weeks in advance of an IEP meeting and failure to complete and input students progress reports into the ESIS system. Perlstein also told Ruiz that he needed to fill out bi-monthly progress reports and that failure to do so would be considered insubordination. Perstein followed this meeting up with a letter dated November 18th which stated that Ruiz's actions were unacceptable and continued to demonstrate a lack of professional growth, that Ruiz was in danger of receiving an adverse rating as well as a recommendation for discontinuance of his services. On December 19, 2014, plaintiff met with defendant Principal Anthony Armstrong ("Armstrong") regarding a safety concern over allowing a parent into the school building contrary to security protocols, for which Ruiz was subsequently disciplined at the end of January. In January, Armstrong determined that Ruiz had failed to take daily attendance and again threatened Ruiz with discipline and an adverse rating; the principal also retroactively disciplined Ruiz for failing to turn in grades for progress reports in November. On or about January 30, 2015 Armstrong sent a letter t Ruiz memorializing the December 19th meeting and order Ruiz to set up a meeting with the Dean to review safety protocols. Armstrong again warned Ruiz that he was in danger of receiving an adverse rating for the year, being fired, and having his license terminated, It is important to note, that the complaint does not assert that any of the defendants referred to his national origin/race during these meetings.

Ruiz also contends that in December 2014 Armstrong conducted a 15 minute informal observation in lieu of conducting an Annual Professional Performance review ("APPR") and rated Ruiz as "ineffective" in every category and then incorrectly categorized this informal observation as an APPR. The APPR is supposed to be a summative end of year conference consisting of a mandatory face-to-face meeting between a teacher eligible to advance to tenure and the principal and/or other evaluator. The purpose of this collaborative conversation is to review feedback and ratings from being observed, and to identify successes, areas for improvement, and next steps toward the teacher's continued professional growth.

Armstrong rated Ruiz's teaching performance as "ineffective" for the 2014-15 school year and then did not conduct the "sham APPR" until March 2015. Plaintiff claims that defendants unfairly denied him a timely AARP and then violated the collective bargaining agreement by giving him an APPR so late in the game as to destroy his ability to appeal it. the APPR to him so late is a violation of the CBA and destroyed his ability to appeal it. The DOE, however, contends that the AARP could only occur between April 24th and June 2, 2015, but that since it discontinued plaintiff 's employment on May 23, 2015, the conference could not be held.

Ruiz claims that he was eligible for tenure in or about June 2015, However, as a result of the letters in his file, ineffective ratings, and the alleged sham APPR, the DOE discontinued Ruiz's services in May 2015 and denied him tenure. In "stark contrast" to these actions, Ruiz asserts that he was peer evaluated and interviewed on or about 10 occasions, which were "very positive"' and that he always received an effective rating. Peer evaluations are part of the "new rating system" and that the peer evaluators are composed of former principals and vice principals supplied by the DOE and that the evaluations were spaced out every three months.

Plaintiff claims his workplace was "permeated with discriminatory intimidation, ridicule and insult" that was sufficiently severe or pervasive so as to alter his working conditions and create a hostile working environment. His claim for hostile work environment is based on Armstrong's and Perlstein's constant harassment of and singling him out for reprimand over petty incidents, that their actions were "grounded in hate and superiority," and that he was treated less well than one Melissa Zinker, a white female special education probationary teacher. However, he did not point to one comment made by either Armstrong or Perlstein that referred to his nationality or race; i.e. his membership in a protected class.

Although it is somewhat unclear whether plaintiff alleges that actions following his discontinuance sounded in discrimination, hostile work environment, or retaliation or all of them, plaintiff challenges the series of "unfortunate events" which stemmed from the unlawful discontinuance of his employment. His appeal of his ineffective rating and discontinuance resulted in three further adverse employment actions: in November 2015 his nomination to become a substitute teacher was canceled, he was disqualified from becoming a police officer, and he was denied all job opportunities in many school districts. He also claims that Perlstein stymied his ability to become a police officer by making false statements about his work performance to the New York City Police Department ("NYPD"), After his discontinuance he was denied access an online software program and t the DOE did this "fraudulently, and in retaliation for [his] filing an appeal." In addition to his claim of hostile work environment, plaintiff asserts that these actions constituted separate torts of intentional infliction of emotional distress, fraudulent misrepresentation and concealment, defamation, and tortuous interference with business relationship.

Plaintiff claims that the DOE retaliated against him, in violation of the State and City HRLs for appealing his discontinuance and that the DOE decision upholding his discontinuance was...