Zabar v. N.Y.C. Dep't of Educ.

MAYA ZABAR, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION; MARISOL ROSALES,SUPERINTENDENT OF HIGH SCHOOLS OF DISTRICT 2; MANUEL UREÑA,PRINCIPAL OF HIGH SCHOOL OF ART AND DESIGN; LYNN ROSALES,ASSISTANT PRINCIPAL OF HIGH SCHOOL OF ART AND DESIGN;SARI PEREZ, ASSISTANT PRINCIPAL OF HIGH SCHOOL OF ART AND DESIGN, Defendants.

18 Civ. 6657 (PGG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

May 12, 2020

ORDER

PAUL G. GARDEPHE, U.S.D.J.:

Plaintiff Maya Zabar - a New York City school teacher - brings claims against Defendants New York City Department of Education ("DOE"); Marisol Rosales, Superintendent of High Schools of District 2 ("Superintendent Rosales"); Manuel Ureña, principal of DOE's High School of Art and Design (the "High School"); Lynn Rosales, an assistant principal at the High School; and Sari Perez, also an assistant principal at the High School. Plaintiff alleges that she suffered discrimination and retaliation in her workplace in violation of the Americans with Disabilities Act (the "ADA"); 42 U.S.C. § 1983; the New York State Human Rights Law (the "NYSHRL"); and the New York City Human Rights Law (the "NYCHRL"). Defendants have moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated below, Defendants' motion will be granted in part and denied in part.

BACKGROUND¹

Plaintiff became a teacher for the New York City DOE in September 2008. (Am. Cmplt. (Dkt. No. 37) ¶ 15) In 2011, Plaintiff was diagnosed with "the disabilities of major depression and generalized anxiety." (Id. ¶ 16) In 2012, Plaintiff began teaching English at the High School. (Id. ¶ 17) From the beginning of her DOE career through the 2015-2016 school year, Plaintiff received Satisfactory or Effective ratings for her teaching. (Id. ¶¶ 19-20)

The teachers at the High School are represented by the United Federation of Teachers (the "Union"), and in June 2016, Plaintiff was selected to represent the High School's English department on the Union's executive board. In this capacity, Plaintiff met monthly with the principal and other High School administrators "to resolve issues at the school." Plaintiff was "very outspoken regarding issues pertaining to [the] administration." (Id. ¶¶ 21, 27, 32) She remained in this role through the 2017-2018 school year. (Id. ¶ 41)

In the summer of 2016, Plaintiff asked Principal Urena for a room change because of PTSD symptoms she was experiencing. Plaintiff explained to Urena that she had been "diagnosed with generalized anxiety disorder, and her assigned room was a trigger to her mental health condition." (Id. ¶ 23) Principal Urena granted the request. (Id. ¶ 16)

In September 2016, Plaintiff informed Assistant Principal Rosales that she had been diagnosed with generalized anxiety disorder and major depression. Plaintiff requested that "all instructions, reminders, or updates regarding anything school related" be in writing as an accommodation to her disability. Assistant Principal Rosales "shrugged her shoulders, but did not inform Plaintiff that she needed to submit a formal request for a reasonable medicalaccommodation for this to occur." (Id. ¶ 24) Since that time, Defendants have "refused to put many school-related requests in writing." Plaintiff reiterated her request for this accommodation "throughout the 2016-17 and 2017-18 school years," but was "ignore[d.]" (Id. ¶ 25)

In November 2016, Plaintiff reported to the Union that Assistant Principal Rosales was not "teach[ing] her assigned Advanced Placement [] classes. Additionally, Plaintiff reported that Assistant Principal Rosales was breaching her duties as it pertained to data entry and that she was retaliating against all teachers who expressed any concern about her practices." (Id. ¶ 28) Within a month, Assistant Principal Rosales was removed from her assigned Advanced Placement classes. (Id. ¶ 31)

Plaintiff alleges that "[s]hortly after joining the [U]nion executive board and informing [Assistant Principal] Rosales of her medical conditions in September 2016, Plaintiff began experiencing harassment and retaliation from her school administration." (Id. ¶ 26) The alleged harassment and retaliation included, inter alia: (1) "unwarranted" disciplinary letters dated November 5, 2016, November 17, 2016, February 27, 2017, April 19, 2017, September 6, 2017, March 16, 2018, May 2, 2018, and June 22, 2018² (see id. ¶¶ 29, 30, 39, 42, 51, 54, 56); (2) "unwarranted less-than-effective" written evaluations dated November 22, 2016, February 8, 2017, May 18, 2017, June 7, 2017, June 21, 2017, December 8, 2017, February 5, 2018, May 7, 2018, and May 31, 2018³ (see id. ¶¶ 33-38, 44-45, 47-48, 52-53); (3) "[a]t the conclusion of the 2016-17 school year, Plaintiff['s]. . . first ever Developing rating on her 'Measures of Teachers Performance' ('MOTP'), which is part of a teacher's overall annual rating" (see id. ¶ 40); (4) in late June 2018, "an Ineffective overall rating on her Measures of Teacher Performance . . . forthe 2017-18 school year" (see id. ¶ 58); (5) September 7, 2018 "Section 3020-a disciplinary charges seeking termination of her employment (see id. ¶ 60); and (6) a September 17, 2018 "reassign[ment] from the school without any teaching duties," which makes Plaintiff "no longer eligible for per session work." (Id. ¶ 61)

On March 15, 2018, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") claiming disability discrimination.⁴ (Turetsky Decl. (Dkt. No. 58), Ex. 1) Plaintiff contends that a number of the acts listed above constitute retaliation for her EEOC filing. (Id. ¶ 50). On April 26, 2018, Plaintiff received a right to sue letter from the EEOC. (Id., Ex. A & ¶ 55)

The Complaint was filed on July 24, 2018 (Dkt. No. 1), and the Amended Complaint was filed on October 4, 2018. (Dkt. No. 37) Defendants moved to dismiss on March 18, 2019. (Dkt. No. 57)

DISCUSSION

I. MOTION TO DISMISS 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)). "In considering a motion to dismiss . . . the court is to accept as true all facts alleged in the complaint," Kassner, 496 F.3d at 237 (citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002)), and must "draw all reasonable inferences in favor of the plaintiff." Id. (citing Fernandez v. Chertoff, 471 F.3d 45, 51 (2d Cir. 2006)).

"[A] plaintiff alleging employment discrimination or retaliation is not required to plead facts sufficient to establish a prima facie case," however. Krasner v. HSH Nordbank AG, 680 F. Supp. 2d 502, 512 (S.D.N.Y. 2010) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 515 (2002) (addressing motion to dismiss standard for Title VII discrimination claim); Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 72 (2d Cir. 2006) (per curiam) (applying Swierkiewicz to retaliation claims)). Instead, as the Swierkiewicz court explained, the "ordinary rules for assessing the sufficiency of a complaint" under Fed. R. Civ. P. 8(a)'s notice pleading standard apply. Swierkiewicz, 534 U.S. at 511.

Under this standard, a plaintiff is required only to set forth a "short and plain statement of the claim," Fed. R. Civ. P. 8(a), with sufficient factual "heft 'to sho[w] that the pleader is entitled to relief.'" Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)). Tosurvive a motion to dismiss, plaintiff's "[f]actual allegations must be enough to raise a right of relief above the speculative level," id. at 555, and plaintiff's claims must be "plausible on [their] face." Id. at 570. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678.

"Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 557). Moreover, where "the allegations in a complaint, however true, could not raise a claim of entitlement to relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [his] claims across the line from conceivable to plausible, the[] complaint must be dismissed." Id. at 570. "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

"In considering a motion to dismiss for failure to state a claim pursuant to 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 by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Hayden v. Cty. of Nassau, 180 F.3d 42, 54 (2d Cir. 1999)). "In situations where exhaustion of administrative remedies is a prerequisite to bringing suit, a court may take judicial notice of the records and reports of the relevant administrative bodies, as well as the facts set forth therein." Chidume v. Greenburgh-N. Castle Union Free Sch. Dist., No. 18-CV-01790 (PMH), 2020 WL 2131771, at *2 (S.D.N.Y. May 4, 2020).

II. ADA CLAIMS AGAINST DOE

The Amended Complaint asserts ADA claims against DOE for denial of a reasonable accommodation, hostile work environment, and retaliation. (Am. Cmplt. (Dkt. No. 37) ¶¶ 62-67) Defendants contend that Plaintiff's ADA claims are partially time-barred and, in any event, fail to state a claim under Rule 12(b)(6). (Def. Br. (Dkt. No. 59) at 12, 15-21)⁵

A. Statute of Limitations

"A plaintiff seeking to assert an ADA discrimination claim must first file an administrative charge with the EEOC or an equivalent...