Washburn v. Kingsborough Cmty. Coll.

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DR. RED WASHBURN, Plaintiff, v. KINGSBOROUGH COMMUNITY COLLEGE, DR. JOANNE RUSSELL, DR. EILEEN FERRETTI, MICKIE DRISCOLL, DR. MICHAEL BARNHART, JAMES CAPOZZI, DELISE CHUNG, ROXANNA THOMAS, and CITY UNIVERSITY OF NEW YORK Defendants.

No. 20-cv-0395(DLI)(MMH)

United States District Court, E.D. New York

March 29, 2023

OPINION AND ORDER

DORA L. IRIZARRY, United States District Judge

Before the Court is Defendants' motion to dismiss the TAC filed in this case. For the reasons set forth below, the motion to dismiss is granted with prejudice as to the federal claims and the Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims, which are dismissed without prejudice.

PROCEDURAL BACKGROUND

On January 24, 2020, Dr. Red Washburn (“Plaintiff”) commenced this action against Kingsborough Community College (“Kingsborough”), Joanne Russell (“Russell”), Eileen Ferretti (“Ferretti”), Mickie Driscoll (“Driscoll”), Michael Barnhart (“Barnhart”), James Capozzi (“Capozzi”), Delise Chung (“Chung”) Roxanna Thomas (“Thomas”), and the City University of New York (“CUNY”) (collectively “Defendants”), alleging discrimination, based on Plaintiff's status as a genderqueer, nonbinary, and gender non-conforming transgender person, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”), Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101, et seq. (“ADA”), the Civil Rights Act of 1871, 42 U.S.C § 1983, the New York State Human Rights Law, N.Y. Exec Law § 290, et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Administrative Code § 8-101, et seq. (“NYCHRL”). See, Third Am. Compl. (“TAC”), Dkt. Entry No. 54.

On June 3, 2020, Defendants moved to dismiss the original complaint on the grounds that it was prolix in violation of Federal Rule of Civil Procedure 8 (“Rule 8”), the claims failed to state a claim upon which relief could be granted under Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”), and the claims were time barred. See, Defs.' Notice of Mot. to Dismiss the Compl., Dkt. Entry No. 24; Defs.' Mem. of Law in Supp. of Mot. to Dismiss the Compl., Dkt. Entry No. 26. On March 31, 2021, the Court granted the motion to dismiss without prejudice and with leave for Plaintiff to amend the complaint consistent with the Court's Memorandum and Order, by no later than May 7, 2021. See, First Memorandum and Order (“First M&O”), Dkt. Entry No. 36. Plaintiff timely filed the Amended Complaint. See, Am. Compl., Dkt. Entry No. 38.

On June 3, 2021, Defendants moved to dismiss the amended complaint on the grounds that it still was prolix in violation of Rule 8, failed to state a claim upon which relief could be granted under Rule 12(b)(6), and the claims were time barred. See, Defs.' Notice of Mot. to Dismiss the Am. Compl., Dkt. Entry No. 40; Defs.' Mem. of Law in Supp. of Mot. to Dismiss the Am. Compl., Dkt. Entry No. 41. Contrary to the Court's Order to file an opposition to the motion to dismiss, and despite having been granted an extension of time to do so, Plaintiff inappropriately filed a Second Amended Complaint without first seeking leave of the Court in violation of Fed.R.Civ.P. 15(a)(2). See, Electronic Order dated July 2, 2021. As Plaintiff no longer was permitted to amend their complaint as of right, the second amended complaint was stricken. Id. On March 22, 2022, the Court granted the motion to dismiss without prejudice and with leave for Plaintiff to amend the complaint consistent with the Court's Memorandum and Order, by no later than April 21, 2022. See, Second Memorandum and Order (“Second M&O”), Dkt. Entry No. 53. Plaintiff timely filed the Third Amended Complaint (“TAC”). See, TAC, Dkt. Entry No. 54.

On June 13, 2022, Defendants moved to dismiss the TAC on the grounds that it failed to provide fair notice in violation of Rule 8, failed to state a claim upon which relief could be granted in violation of Rule 12(b)(6), and the claims were time barred. See, Defs.' Notice of Mot. to Dismiss the TAC, Dkt. Entry No. 56; Defs.' Mem. of Law in Supp. of Mot. to Dismiss the TAC (“Defs.' Mem.”), Dkt. Entry No. 56-1. On June 27, 2022, Plaintiff opposed the motion to dismiss. See, Pl.'s Mem. of Law in Opp'n to Defs.' Mot. to Dismiss the TAC (“Pl.'s Opp.”), Dkt. Entry No. 57. On July 1, 2022, Defendants replied. See, Defs.' Reply Mem. of Law in Further Supp. of Mot. to Dismiss the TAC (“Defs.' Reply”), Dkt. Entry No. 58.

FACTUAL BACKGROUND^[1]

Plaintiff is a tenured Associate Professor of English at Kingsborough, directs the Women's and Gender Studies Concentration (“WGS Program”), and has received awards, grants, and positive performance reviews throughout their employment. TAC at ¶¶ 2, 33. Kingsborough is a community college that is part of the City University of New York (“CUNY”) system. Id. at ¶ 13. CUNY receives federal funding and supervises, manages, and administers Kingsborough and its academic programs and requirements. Id. at ¶¶ 12, 14. At all relevant times, the Individual Defendants were employees of Kingsborough. Id. ¶ 10. Specifically, Russell served as the Kingsborough's Provost; Ferretti served as Chair of the English Department; Driscoll served as Executive Director of Human Resources and Labor Designee; Barnhart served as Chair of the History Department; Thomas served as Kingsborough's Title IX Coordinator; Chung served as a member of Kingsborough's Public Safety Department; and Capozzi served as Director of Public Safety. Id. at ¶¶ 10, 74.

Plaintiff contends that they are disabled because of their “gender dysphoria, and physical limitations due to gender-confirming surgery, and other physical and mental impairments.” Id. at ¶ 16. However, the TAC does not define gender dysphoria, identify any of Plaintiff's physical and mental impairments, or specify how gender dysphoria or these physical and mental impairments impact Plaintiff. Additionally, while Plaintiff also contends that Defendants perceived them as disabled, the TAC provides no information beyond that conclusory assertion. Id. at ¶¶ 178, 210, 242.

Plaintiff began identifying as transgender within the past six years and contends that they were subjected to discrimination and retaliation after publicly acknowledging their gender identity. Id. at ¶¶ 29, 35, 37. However, The TAC does not allege when Plaintiff publicly acknowledged their gender identity, how they publicly acknowledged it, or how each defendant had knowledge of Plaintiff's gender identity. Without specifying exact dates, the TAC alleges that, sometime during the past six years, Russell and Ferretti: (1) rejected Plaintiff's grants;^[2] (2) prohibited Plaintiff from applying for grants; (3) rejected Plaintiff's longstanding teaching arrangement with Hunter College; (4) prevented Plaintiff's transfer to another CUNY college; (5) removed Plaintiff from unknown school committees; (6) switched Plaintiff's courses and course times, which purportedly interfered with unspecified accommodations for an unidentified disability; (7) denied Plaintiff unspecified accommodations for an unidentified disability; (8) reduced benefits to the WGS Program while providing benefits to other programs; (9) denied Plaintiff access to the WGS Program's office and records; (10) eliminated the WGS Program's administrative assistant; and (11) moved Plaintiff's office to a storage closet filled with boxes and contaminated by mold. Id. at ¶ 37.

Plaintiff further alleges that Russell expressed discomfort with Plaintiff's gender and gender identity and with the WGS Program's teachings about transgender, nonbinary, and genderqueer issues on several occasions. Id. at ¶ 36. However, the TAC does not specify when this occurred or allege any facts as to how Russell expressed “discomfort.” Additionally, while the TAC alleges that “no other employee of Defendant Kingsborough similarly situated to Plaintiff has been subjected to the differential treatment and adverse actions Plaintiff received[,]” it fails identify these individuals or provide any specific comparator evidence. Id. at ¶¶ 137, 166.

Plaintiff also alleges that non-parties to this action faced threats and adverse consequences when expressing support for the WGS Program. Id. at ¶¶ 38, 51-58. For example, Capozzi allegedly “summoned students to interrogate them about their actions in posting writings in support of Dr. Washburn's program.” Id. at ¶ 53. Russell allegedly supervised the process where unidentified members of Public Safety interrogated WGS Program students, threatened them with expulsion, and made it harder for them to graduate. Id. at ¶¶ 38, 55-56. Moreover, the office of another professor was relocated after having supported a WGS Program student for a newspaper article the student had written. Id. at ¶ 51.

During the Summer of 2018, and on subsequent occasions, Plaintiff requested that their name and gender be changed on Kingsborough records; however, they were informed that these requests could not be accommodated. Id. at ¶ 42. According to Plaintiff, Driscoll informed Plaintiff that they could not select multiple gender designations on the gender change forms since Kingsborough and the CUNY system only allow one gender designation. Id. at ¶ 43. However, Plaintiff was able to change their name on college records while the College Catalog continued to use Plaintiff's former female name. Id. at ¶ 48. Plaintiff further contends that Defendants misgendered Plaintiff “on many occasions, in person and in writing, despite having clear notice of Plaintiff's proper name, title, and preferred pronouns.” Id. at ¶ 47. However, the TAC does not allege how Defendants had “clear notice”...