Ferraro v. New York City Department of Education et al

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Upon a careful clear error and de novo review of the record and Judge Orensteins well-reasoned and thorough Report and Recommendation, the court denies defendants objections, and affirms and adopts the Repor t and Recommendation in its entirety as the opinion of the court. Accordingly, the court grants defendants motion to dismiss the individual ADA claims against Mr. Honore and Mr. Slippen, and denies defendants motion made on the following grounds: (1) abstention based on a state action alleging overlapping facts; (2) untimeliness of the claims; and (3) failure to state a claim. Ordered by Judge Kiyo A. Matsumoto on 3/31/2015. (Gong, LiJia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------- X
PAUL FERRARO,
ORDER ADOPTING REPORT
AND RECOMMENDATION
Plaintiff,
-against-

13-CV-5837 (KAM)(JO)

NEW YORK CITY DEPARTMENT OF EDUCATION,
RALPH K. HONORE and MARC SLIPPEN,
Defendants.
-------------------------------------X
MATSUMOTO, United States District Judge:
On October 24, 2013, plaintiff Paul Ferraro
(“plaintiff” or “Mr. Ferraro”) commenced this action against his
employer, defendant New York City Department of Education
(“DOE”), his principal Ralph K. Honore (“Mr. Honore”), and his
assistant principal Marc Slippen (“Mr. Slippen”) (collectively,
“defendants”), alleging employment discrimination on the basis
of his disability, as well as retaliation for his protected
activity when he complained about the alleged discrimination, in
violation of the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12101, et seq.;

the New York State Human

Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 296-97; and the New
York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8107.

(See generally Complaint filed 10/24/13 (“Compl.”), ECF

No. 1.)

On May 2, 2014, defendants moved to dismiss
plaintiff’s Complaint under Federal Rule of Civil Procedure
12(b)(6).

(Notice of Mot. to Dismiss filed 5/2/14, ECF No. 14.)

Defendants asserted the following grounds for dismissal: (1)
abstention based on a state action alleging overlapping facts;
(2) untimeliness of the claims; (3) failure to state a claim;
and (4) no individual liability under the ADA.

(See Mem. of Law

in Supp. of Defs.’ Mot. to Dismiss the Compl. (“Defs.’ Mot.”),
ECF No. 16, at 22; Compl. ¶ 7.)1

On September 16, 2014, the

court referred the defendants’ motion to dismiss to the
Honorable James Orenstein for a Report and Recommendation.

(See

Order Referring Motion 9/16/14.)
On March 16, 2015, Judge Orenstein issued a Report and
Recommendation recommending that the court dismiss the
individual ADA claims against Mr. Honore and Mr. Slippen, but
deny defendants’ motion with respect to the other claims.
(Report and Recommendation dated 3/16/15 (“R&R”), ECF No. 19.)
The R&R made the following recommendations: (1) deny dismissal
pursuant to the Younger abstention doctrine; (2) deny dismissal
of Mr. Ferraro’s claims which include allegedly discriminatory
acts that predate the 300-day limitations period because the
1

In an argument relegated to a footnote, defendants contend that Mr.
Ferraro’s hostile work environment claim should be dismissed because the
Second Circuit has not yet held that such a claim is cognizable under the
ADA. (See Defs.’ Mot. at 18 n.3.)

2

claims are not time-barred; (3) deny dismissal because Mr.
Ferraro has plausibly alleged prima facie cases of
discrimination and retaliation; and (4) grant dismissal of
claims against individual defendants. (See R&R at 7-13.)
The R&R also informed the parties that any objections
to the report must be filed within fourteen days of receipt of
the report, by March 30, 2015.
§ 636(b)(1)).)

(See R&R at 13 (citing 28 U.S.C.

Notice of the R&R was sent electronically to the

parties via the court’s electronic filing system on March 16,
2015.

On March 30, 2015, defendant filed objections to the R&R.

(Def.’s Objection to R&R filed 3/30/15 (“Def. Obj.”), ECF No.
21.)
STANDARD OF REVIEW
In reviewing a Report and Recommendation, the district
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C).

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The district court “shall make a de novo

determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.”

28 U.S.C. § 636(b)(1).

Where “the objecting party makes

only conclusory or general objections, or simply reiterates the
original arguments, the Court will review the report and
recommendation strictly for clear error.”

3

Zaretsky v. Maxi-

Aids, Inc., No. 10-CV-3771, 2012 WL 2345181, at *1 (E.D.N.Y.
June 18, 2012) (internal quotation marks omitted); Mario v. P &
C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Merely
referring the court to previously filed papers or arguments does
not constitute an adequate objection”); see also Soley v.
Wasserman, 823 F. Supp. 2d 221, 228 (S.D.N.Y. 2011).

The

district court is “permitted to adopt those sections of a
magistrate judge’s report to which no specific objection is
made, so long as those sections are not facially erroneous.”
Batista v. Walker, No. 94 Civ. 2826, 1995 WL 453299, at *1
(S.D.N.Y. July 31, 1995) (Sotomayor, J.) (citation and internal
quotation marks and brackets omitted).

Furthermore, even on de

novo review of specific objections, the court “will not consider
‘arguments, case law, and/or evidentiary material which could
have been, but [were] not, presented to the magistrate judge in
the first instance.’”

Brown v. Smith, No. 09-CV-4522, 2012 WL

511581, at *1 (E.D.N.Y. Feb. 15, 2012) (quoting Kennedy v.
Adamo, No. 02-CV-1776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1,
2006)).
DISCUSSION
Defendants object that the R&R did not address their
contention that the timespan between plaintiff’s protected
activity and the adverse employment action was too “temporally

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remote” to allege a causal connection between the protected
activity and the adverse employment action to plausibly state a
retaliation claim.

(Def. Obj. at 9-10.)

In addition,

defendants object to the R&R’s rejection of defendants’
arguments that plaintiff’s claims under the ADA, NYSHRL, and
NYCHRL are time-barred and fail to state a claim for disability
discrimination and retaliation.

(See Def. Obj.)2

The court first conducts a de novo review of the
record regarding the temporal relationship between plaintiff’s
protected activity and the alleged retaliation by defendants.
The parties do not dispute that Mr. Ferraro filed a Charge of
Discrimination with the Equal Employment Opportunity Commission
(“EEOC”) on December 5, 2012.

(See Mem. of Law in Supp. of

Defs.’ Mot. to Dismiss the Compl., ECF No. 16, at 22; Compl. ¶
7.)

Mr. Ferraro alleges that Mr. Honore issued a letter to

plaintiff’s file regarding “intermingling student lunch money
with photograph money” on December 7, 2012, and that plaintiff
was subject to close classroom observations on December 10, 12,
and 17, 2012.

(Compl. ¶¶ 89-92.)

2

Plaintiff also alleges that,

Defendants do not object to the recommended denial of their motion based on
abstention. Defendants also do not object to the R&R’s recommendation that
defendants’ motion to dismiss plaintiff’s hostile work environment claims be
denied, because no circuit court has held that the ADA does not support a
hostile work environment claim and district courts in this circuit “have
likewise uniformly resolved this issue in favor of plaintiffs asserting such
claims.” (R&R at 11 n.6.) The court adopts the R&R’s recommendations denying
defendants’ abstention and hostile work environment motions, finding no clear
error.

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in April 2013, Mr. Honore changed the subject matter of
plaintiff’s formal observation, refused plaintiff’s request to
turn on the air conditioning prior to a classroom observation,
and issued an unsatisfactory rating, among other alleged adverse
actions.

(Compl. ¶¶ 93-98.)

Even if the court did not consider

the alleged incidents in December 2012 to be adverse employment
actions, the Second Circuit has made clear that four months is
not so temporally distant to allege a causal relationship for a
prima facie case of retaliation.

See Gorzynski v. JetBlue

Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (“Though this
Court has not drawn a bright line defining, for the purposes of
a prima facie case, the outer limits beyond which a temporal
relationship is too attenuated to establish causation, we have
previously held that five months is not too long to find the
causal relationship.”).

Consequently, pursuant to a de novo

review of the record, the court finds that plaintiff has
adequately alleged a causal connection between his protected
activity and the adverse employment action, and adopts the R&R’s
recommendation that plaintiff has sufficiently alleged a
retaliation claim.
Because the defendants’ remaining arguments regarding
timeliness of plaintiff’s claims and the sufficiency of his

6

pleading3 merely reiterate those made in defendants’ motion to
dismiss, the court may properly review the R&R for clear error.
See Zaretsky, 2012 WL 2345181, at *1.

The court finds no clear

error and adopts the R&R’s recommendations rejecting defendants’
arguments that plaintiff’s claims are time-barred and fail to
state a claim of discrimination.

With respect to defendants’

argument that plaintiff’s claims are time-barred, the court
agrees with the R&R that defendants’ alleged conduct that
occurred more than 300 days before Mr. Ferraro filed his
complaint with the EEOC on December 5, 2012, including Mr.
Honore and Mr. Slippen’s comments suggesting discriminatory
animus are properly considered “as background evidence” even
though they occurred outside of the applicable limitations
period.

See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

113 (2002) (“Nor does the statute bar an employee from using the
3

The court notes that the district opinions to which the R&R cite, Smalls v.
PetSmart, Inc., No. 09-CV-5347, 2010 WL 5572073 (E.D.N.Y. Nov. 1 2010) and
Morales v. Long Island R.R. Co., No. 09 CV 8714, 2010 WL 1948606 (S.D.N.Y.
May 14, 2010), rely on Boykin v. KeyCorp, 521 F.3d 202 (2d Cir. 2008), which
was decided after the Supreme Court’s decision in Twombly, but before its
decision in Iqbal. In Kajoshaj v. New York City Dep’t of Educ., 543 F. App’x
11, 15 (2d Cir. 2013), the Second Circuit cautioned that “Boykin . . . cannot
be read to conflict with Iqbal’s requirement that pleadings permit a court to
‘infer more than the mere possibility of misconduct’ and its instruction that
the identification of a plausible claim is a ‘context-specific’ inquiry.”
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The R&R’s misplaced
reliance on Boykin, however, does not undermine the R&R’s recommendation that
plaintiff sufficiently alleged a discrimination claim under the ADA when
plaintiff has alleged that defendants were aware of plaintiff’s disability,
defendants made remarks indicating discriminatory animus, and defendants
subjected plaintiff to treatment that not only differed from the treatment of
other teachers, but aggravated Mr. Ferraro’s disability and imposed a greater
burden on plaintiff. (See R&R at 10.)

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prior bad acts as background evidence to support a timely
claim.”)

The court notes, however, that claims based on

discrete acts of discrimination that occurred 300 days before
December 5, 2012 and are unrelated to an identifiable policy or
practice are time-barred.

See Patterson v. Cty. of Oneida, 375

F.3d 206, 220 (2d Cir. 2004) (“[Title VII] precludes recovery
for discrete acts of discrimination or retaliation that occur
outside the statutory time period, even if other acts occurred
within the statutory time period.”) (internal quotations and
citations omitted).

Consequently, as the R&R suggested,

discovery on alleged discrete acts of discrimination 300 days
before December 5, 2012 may be limited, claims based on timebarred acts may be properly dismissed at the summary judgment
stage, and evidence of the time-barred acts may be inadmissible
at trial.

(See R&R at 8.)
DISCUSSION
Upon a careful clear error and de novo review of the

record and Judge Orenstein’s well-reasoned and thorough Report
and Recommendation, the court denies defendants’ objections, and
affirms and adopts the Report and Recommendation in its entirety

8

as the opinion of the court.4

Accordingly, the court grants

defendants’ motion to dismiss the individual ADA claims against
Mr. Honore and Mr. Slippen, and denies defendants’ motion made
on the following grounds: (1) abstention based on a state action
alleging overlapping facts; (2) untimeliness of the claims; and
(3) failure to state a claim.

SO ORDERED.
Dated:

March 31, 2015
Brooklyn, New York
______
/s/
Kiyo A. Matsumoto
United States District Judge

4

Because the court does not find that defendants’ objections have any merit
and plaintiff has filed no objections, the court finds that a response from
the plaintiff is unnecessary and adopts the Report and Recommendation without
awaiting a response from the plaintiff.

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