Torres v. The New York City Department of Education

Filing 23

MEMORANDUM & ORDER, For the foregoing reasons, Defendant's motion for a judgment on the pleadings (Dkt. 17) is GRANTED IN PART and DENIED IN PART. The motion is granted with respect to the following claims, which are dismissed: Plaintiff's § 1983 claim; Plaintiff's ADA Discrimination and Retaliation Claims; and Plaintiff's NYSHRL and NYCHRL claims. The motion is denied with respect to the following claim: Plaintiff's failure to accommodate claim. So Ordered by Judge Nicholas G. Garaufis on 5/14/2019. (Lee, Tiffeny)

OfY

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
-X

SABATO TORRES,

Plaintiff,
MEMORANDUM & ORDER

-against-

18-CV-2156(NGG)
(RER)
NEW YORK CITY DEPARTMENT OF EDUCATION,
Defendant.
X

NICHOLAS G. GARAUFIS,United States District Judge.

Plaintiff Sabato Torres, a teacher at a New York City Department ofEducation("DOE")

school, brings this action against the NYC DOE pursuant to the Americans with Disabilities Act,
42 U.S.C. §§ 12101,etseq.(the "ADA");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. Admin. Code §§ 8-101 etseq.('TSIYCHRL"). (Am. Compl.(Dkt. 14).) Plaintiff claims
that he was denied a medical hardship transfer and denied permission to retum to work from a
leave of absence because of his alleged disability, Post-Traumatic Stress Disorder("PTSD"), and
in retaliation for complaining about discrimination. (Id.)

Before the court is Defendant's motion for ajudgment on the pleadings pursuant to Fed.

R. Civ. P. 12(c). rSee Def. Mot.for a Judgment on the Pleadings("Mot.")(Dkt. 17).) For the
reasons stated below. Defendant's motion is GRANTED IN PART and DENIED IN PART.
L

BACKGROUND

Plaintiff, a Caucasian male, began working for Defendant around April 2002. (Am.

Compl.

7-8.) In August 2014,he was hired to work at P.S./I.S. 295Q as a seventh-and-eighth

grade math teacher. (Id 9.) The school's principal, Deon-Lavigne Jones was African1

American. (Id.

10-11.) Plaintiff alleges that, during his employment at this school, he was

subjected to "severe and pervasive harassment and discrimination" because of his race. (Id.
12.) Plaintiff does not, however, provide any further factual details about the alleged
harassment. Plaintiff contends that he tried complaining to Lenon Murray,the Superintendent of
District 29, about the discrimination in the fall of 2015, but Murray "attempted to suppress

[Plaintiff's] complaint." (Id. ^ 14.)

Allegedly,the discrimination Plaintiff suffered was so intolerable that he was eventually

diagnosed with post-traumatic stress disorder("PTSD")in May 2016. (Id ^ 12.) Plaintiffthen
applied and was approved for a leave of absence due to the anxiety and depression he was

experiencing. (Id H 15.) Around August 1, 2016, Plaintiff applied for a "Hardship Transfer,"
which is a transfer that an employee may seek "in situations where [the] continued employment

within their current assignment presents a medical or financial hardship." (Id K 16.) Around
August 15, 2016, he was advised that his transfer was granted. (Id ^ 17.) However,Plaintiff
alleges that he was told shortly afterward that, because he would not be returning to work by

September 2016 due to his leave ofabsence, his transfer request would not be approved. (Id)
Plaintiff alleges that around August 17,2016, he filed a claim with the United States

Equal Employment Opportunity Commission("EEOC")wherein he complained about the
discrimination and harassment to which he was subjected. (Id 1[ 18.) Defendant received notice
ofthis claim shortly thereafter. (Id) Around April 6,2017, after Plaintiff had informed
Defendant that he would return to work that fall, he submitted a new Hardship Transfer request,
based on the same facts as his previous request. (Id ^ 19.) Defendant denied his request

claiming that the transfer was not medically warranted. (Id ^ 20.) Plaintiff alleges that
Defendant's denial was retaliation for his filing a claim with the EEOC. (Id) As a result of

Defendant's denial of his transfer application. Plaintiff remained assigned to P.S./I.S. 295Q. (Id
21.) Plaintiff continued his medical leave. (Id H 22.)

On June 9, 2017,Plaintiff filed a complaint with the New York State Division of Human

Rights,"complaining about the [] discrimination and retaliation." (Id K 24.)Plaintiff alleges that
following the filing of his complaint, he was subjected to further retaliation. (Id ^ 25.) For
instance, Plaintiff contends that in January 2018, Plaintiff asked to return to work, but Defendant

allegedly refused to allow him to do so, pointing to the medical documentation he had submitted
as evidence for why he should not be allowed to return. (Id

25-26.)

Plaintiff alleges that although he sought to return January 15, 2018, he was not permitted
to return to work until February 8, 2018. (Id H 28.) Upon Plaintiff's return, he was placed in the
Absent Teacher Reserve("ATR")and was assigned to PS118Q,teaching elementary school.
m
n.

PROCEDURAL fflSTORY

Plaintifffiled his initial complaint with this court on April 11,2018. (Compl.(Dkt. 1).)

On November 5, 2018,Plaintifffiled an amended complaint. (Am. Compl.) Defendant
answered Plaintiff's amended complaint on December 17, 2018. (Answer(Dkt 16).) On
January 24, 2019, Defendant filed a motion for a judgment on the pleadings. (Mot.)
in.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(c) provides that "[ajfter the pleadings are closed—^but
early enough not to delay trial—a party may move forjudgment on the pleadings." Fed R. Civ.

P. 12(c). A court applies the same standard to a motion for judgment on the pleadings as that
used for a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

In Re Arab Bank.PLC

Alien Tort Statute Litig., 808 F.3d 144, 151 (2d Ck. 2015), as amended (Dec. 17, 2015).

When considering either, a court should "draw all reasonable inferences in Plaintiff['s]

favor, assume all well-pleaded factual allegations to be true, and determine whether they
plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co.. 648 F.3d 98, 104

(2d Cir. 2011)(internal quotation marks omitted)(quoting Selevan v. N.Y. Thruwav Auth., 584
F.3d 82,88(2d Cir. 2009)). A claim should survive ifthe complaint contains "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. Com, v. Twomblv.550 U.S. 544,570(2007)).
"Threadbare recitals ofthe elements of a cause of action, supported by mere conclusory
statements, do not suffice." Id. at 678.
IV.

DISCUSSION
A.

Section 1983 Claim

In order to state a claim imder § 1983, a plaiutiff must allege that he has been(1)

deprived of a right, privilege or immunity secured by the Constitution or laws ofthe United
States, and that(2)this deprivation was done under color oflaw. 42 U.S.C. § 1983; accord
Pitchell V. Callan. 13 F.3d 545, 547(2d Cir. 1994)(citing Parratt v. Tavlor, 451 U.S. 527, 535

(1981)). It is well established that the "under-color-of-state-law element of § 1983 excludes

from its reach 'merely private conduct, no matter how discrimmatory or wrongful.'" Am. Mfirs.
Mut. Ins. Co. V. Sullivan. 526 U.S. 40, 50(1999)(quoting Blum v. Yaretskv. 457 U.S. 991,1002
(1982)). The Supreme Court has held that an individual acts under the color oflaw when he or
she exercises power"made possible only because Pie or she] is clothed with the authority of
state law." United States v. Classic. 313 U.S. 299, 326 ri94U: see also United States v. Walsh,

194 F.3d 37, 50(2d Cir. 1999)("The Supreme Court has broadly interpreted the color oflaw
/

requirement, concluding that misuse of power, possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority of state law, is action taken
under color of state law."(alteration adopted)(citation and internal quotation marks omitted)).
Here, Defendant seek to dismiss Plaintiff's § 1983 claim for two independent reasons:(1)

"Plaintiff has failed to allege any underlying constitutional violation"; and (2)Plaintiff has failed

to establish that the alleged constitutional deprivation "is the direct result of an official municipal
policy or custom." (Mot. at 7-8). For the reasons provided below,the court fmds that Plaintiff
has failed to establish municipal liability and therefore dismisses Plaintiff's § 1983 claim.

A municipality can only be held liable under 42 U.S.C. § 1983 in the manner set forth in
Monell V. Dep't of Soc. Servs. of N.Y.C.. 436 U.S. 658 (1978), and its progeny, and may not be
held liable under § 1983 on a theory of respondeat superior. Nade v. Marron.663 F.3d 100, 116
(2d Cir. 2011). In order to prevail on a § 1983 claim against a municipality, a plaintiff must
show that the municipality itself caused the alleged constitutional deprivation. Citv of Canton v.

Harris. 489 U.S. 378, 385 (1989). Plaintiff must therefore establish that an identified municipal

policy or practice was the "moving force [behind] the constitutional violation." Monell.436
U.S. at 694. Accordingly, in order to state a Monell claim,"[t]he plaintiff must fust prove the
existence of a municipal policy or custom in order to show that the municipality took some
action that caused his injuries.... Second,the plaintiff must establish a casual connection—^an

'affirmative link'—^between the policy and deprivation of his constitutional rights." Vippolis v.
Vill. of Haverstraw. 768 F.2d 40,44(2d Cir. 1985)(quoting Oklahoma Citv v. Tuttle. 471 U.S.
808, 824 n. 8 (1985)).

A municipal policy or custom for purposes of Monell liability can be established by
alleging:
(1)a formal policy officially endorsed by the municipality;(2) actions
taken by government officials responsible for establishing the municipal

policies that caused the particular deprivation in question;(3)a practice so
consistent and widespread that it constitutes a custom or usage sufficient
to impute constructive knowledge ofthe practice to policymaking
officials; or(4)a failure by policymakers to train or supervise
subordinates to such an extent that it amounts to deliberate indifference to

the rights ofthose who come into contact with the municipal employees.
Bennerson v. Citv ofNew York. No. 03-CV-10182, 2004 WL 9021667241, at *4
(S.D.N.Y. Apr. 28,2004)(intemal citations omitted).

Here, Plaintiff claims that the principal ofthe school is "a fmal policy maker," and thus

municipal liability applies.^ (PI. Opp'n to Mot. at 9("PI. Opp'n")(Dkt. 19).) Defendant notes
that whether or not the principal is a "final policy maker" is of no difference because

"[Plaintiffs] § 1983 claims [are] based on the denial of his transfer request and the alleged delay

in his return to work from medical leave," neither of which Plaintiff attributes to the principal.
(Defs. Reply in Support of Mot.("Defs Rep.")(Dkt. 20)at 5).) Defendant further claims that
Plaintiff has "doom[ed]these claims by asserting that the underlying constitutional violation
imputed against the Defendant^ is a hostile work environment, a claim which he has admittedly
withdrawn." (Defs. Rep. at 4).

Ultimately, the court finds that Plaintiffs complaint contains no factual assertions that
the principal was responsible for either Plaintiffs transfer request or his delayed retum fi-om

medical leave. (See Am. Compl.) In fact, the amended complaint contains zero factual

^ Plaintiff also alleges that the "Defendant has mtentionally committed, condoned or were deliberately indifferent to
the aforementioned violations ofPlaintiff's constitutional rights in that the Defendant's custom or practice of
discriminating and/or retaliating against Plaintiff due to Plaintiff's disability to perpetuate, without abatement, in

violation ofPlaintiffs constitutional and statutory rights pursuant to 42 U.S.C. § 1983." (Am. Comp.^ 32). Such a
conclusory allegation, without any facts suggesting that Defendant had a custom or practice of discrimination, is
simply not enough to establish Monell liability. See, e.g.. Cuevas v. Citv ofNew York. No.07-CV-4169(LAP),
2009 WL 4773033, at *4(S.D.N.Y. Dec. 7,2009)("Baldly asserting that Plaintiffs injuries are the result ofthe
City's policies does not show this Court what the policy is or how that policy subjected Plaintiffto suffer the denial
ofa constitutional right."); Brodeur v. Citv ofNew York. No. 99-CV-651(WHP),2002 WL 424688, at *6

(S.D.N.Y. Mar. 18, 2002)
("The complaint flatly asserts that the City had a policy of stifling, discouraging and
suppressing critics ofthe former Mayor and his administration by arresting them. However, absent from the
complaint are specific factual allegations sufficient to establish that a municipal policy or custom caused Brodeur's
alleged injury.").

allegations pertaining to the principal, other than noting that he was,in fact, the principal at the
time ofthe alleged incidents. (Id at ^ 10.)

Courts in this circuit routinely dismiss Monell claims that lack explicit allegations that

the officials being sued had final policymaking authority. See, e.g., Zherkav. City ofNew York,
N.Y.. No.08-CV-9005(LAP),2010 WL 4537072, at *4(S.D.N.Y. Nov. 9,2010)(dismissing

plaintiff's § 1983 claim for failing to plead "that any official's actions represent official policy")
(internal quotations omitted), affd sub nom.,459 F. App'x 10(2d Cir. 2012)(affirming

dismissal, partly on the basis that the individual official defendants were not themselves officials
ofthe municipal defendants); Canner v. Citv ofLong Beach,No. 12-CV-2611 (DRH),2014 WL
2862791, at *11 (E.D.N.Y. June 23,2014)(dismissing § 1983 claim where "plaintiffs do not
reference any state law supporting their claim that [the defendant] was a final policymaker").

Where similar claims have survived past the pleadings stage,the complaints contained

allegations regarding officials' final policymaking authority. See e.g., Burhans v. Ctv. of
Putnam, No.06-CV-8325(DLC),2011 WL 1157693, at *7(S.D.N.Y. Mar.25, 2011)(denying
the motion to dismiss where the complaint alleged final policymaking authority); Pisano v.

Mancone,No. 08-CV-1045(DC),2009 WL 2337131, at *5(S.D.N.Y. July 30,2009)(denying
motion to dismiss where the complaint alleged that a defendant acted under his authority as
Pohce Chief and where the complaint quoted firom employment termination notices suggesting
that defendant had final rulemaking authority).

With respect to pleading final policy making authority, as stated above, the amended

complaint contains little more than vague assertions the Second Circuit has already deemed
inadequate to trigger a municipality's liabiUty under Monell. See Schwab v. Smalls,435 F.

App'x 37,40(2d Cir. 2011). Therefore, this court cannot find that Plaintiff has adequately

alleged that the principal was a "final policy maker" for purposes of his § 1983 claim. See e.g.,
Moore v. City of New York. No. 08-CV-8879(PGG),2010 WL 742981, at *6(S.D.N.Y. Mar. 2,

2010)("[Plaintiff] cites no authority suggesting that superintendents, principals, or vice

principals have such power, and her conclusory statements to that effect are insufficient to
support her Monell claims."). In light ofthe conclusion that Plaintiff has failed to establish

Monell liability. Plaintiff's § 1983 claim is hereby dismissed.^
B.

ADA Claims

Plaintiff alleges that he has been unlawfully discriminated against due to his "disability

and/or perceived disability in violation ofthe[ADA]by subjecting him to a hostile work
environment, adverse employment actions ... and by failing to accommodate a known

disability." Plaintiff withdrew his hostile work environment claim in his response to Defendant's
motion. (PI. Opp'n at 1 n.l). The court, therefore, will address Plaintiffs discrimination,
retaliation, and failure to accommodate claims below.

1.

Plaintiffs Federal Discrimination and Retaliation Claims

Claims alleging disability discrimination in violation ofthe ADA are subject to the
burden-shifling analysis originally established by the Supreme Court in McDonnell Douglas
Com. V. Green. 411 U.S. 792(1973). See McMillan v. Citv ofNew York,711 F.3d 120,125(2d
Cir. 2013). Under the McDonnell Douglas framework, a plaintiff must first establish a prima

facie case ofemployment discrimination. S^ Tex. Dep't of Cmtv. Affairs v. Burdine,450 U.S.
248,252-53 (1981). To establish a prima facie case, a plaintiff must show that: "(1)she is a
member of a protected class;(2)her job performance was satisfactory;(3)she suffered adverse

^ This court need not address whether Plaintiff has adequately alleged an underlying constitutional violation (Mot. at
6-7)because Plaintiff has failed to establish Monell liability.
8

employment action; and (4)the action occurred under conditions giving rise to an inference of
discrimination." Demoret v. Zegarelli, 451 F.3d 140,151 (2dCir. 2006)(citing McDonnell
Douglas. 411 U.S. at 802). Plaintiff's retaliation claim is also reviewed under the burden-

shifting approach of McDonnell Douglas. See Treglia v. Town of Manlius. 313 F.3d 713,719

(2d Cir. 2002)("Claims for retaliation [under the ADA]are analyzed under the same burden-

shifting framework established for Title VII cases."). To establish a prima facie case of unlawful
retaliation, a plaintiff must show "(1) participation in a protected activity;(2)the defendant's
knowledge ofthe protected activity;(3)an adverse employment action; and(4)a causal
connection between the protected activity and the adverse employment action." S^ Kwan v.
Andalex Grp. LLC,737 F.3d 834, 844(2d Cir. 2013)(internal quotation marks and citation

omitted). Ifthe employer puts forward a non-retaliatory reason for the employment action, the

plaintiff must then put forward evidence that the non-retaliatory reason is a mere pretext for
retaliation. See id. at 845.

Here, Defendant contends that Plaintiff has failed to establish an adverse employment action

for purposes ofPlaintiffs discrirnination and retaliation claims. To prove one's "employer took
adverse action" against him for puiposes of a discrimination claim, a plaintiff must show there

was"a materially adverse change m the terms and conditions ofemployment." Galabava v. New
York Citv Bd. ofEduc.. 202 F.3d 636, 640(2d Cir. 2000)). "Examples of materially adverse

changes include 'termination of employment, a demotion evidenced by a decrease in wage or

salary, a less distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices ... unique to a particular situation.'" Terrv v. Ashcroft. 336
F.3d 128, 138(2d Cir. 2003)(quoting Galabva,202 F.3d at 640). To establish an adverse

employment action for purposes ofa retaliation claim. Plaintiff must allege acts that are "harmful

to the point that they could well dissuade a reasonable worker from making or supporting a
charge ofdiscrimination." Hicks v. Baines. 593 F.3d 159, 165(2d Cir. 2010)(intemal citation
omitted). This definition covers a broader range of conduct than does the adverse-action

standard for claims of discrirnination under Title VII:"[T]he antiretaliation provision, unlike the
substantive [discrirnination] provision, is not limited to discriininatory actions that affect the
terms and conditions of emplo5ment." Vega v. Hempstead Union Free Sch. Dist. 801 F.3d 72,

90(2d Cir. 2015)(citing Burlington N.& Santa Fe Rv. Co. v. White, 548 U.S. 53,57(2006)).
Plaintiff alleges three potential adverse employment actions:(1)the denial of his hardship
transfer;(2)the refusal to return to work early following his medical leave; and(3)the transfer to
the ATR. (See PL Opp'n.) For the reasons discussed below,the court finds that Plaintiff has
failed to plausibly allege an adverse employment action under both the discrimination and
retaliation standards.

a. Denial ofPlaintiff's Transfer Request

The denial of a transfer request may constitute an adverse employment action in certain
circumstances. For example, a transfer has an adverse impact on the terms and conditions of

employment ifthe employee: "(0 has the samejob responsibilities and compensation but an
increase in workload and location-specific stress;(ii) has differentjob responsibilities;(iii) is no

longer ehgible for promotion opportunities; or(iv)experiences a net loss in salary." Pimentel v.
Citv ofNew York. No. OO-CV-326(SAS),2002 WL 977535, at *3(S.D.N.Y. May 14,

2002), afFd. 74 F. App'x 146(2d Cir. 2003). An adverse employment action may also occur

when an employee is transferred "from an 'elite' division .... which provided prestige and
opportunity for advancement,to a less prestigious unit with httle opportunity for professional
growth." de la Cruz v. N.Y.C. Human Res. Admin. Dep't of Soc. Serv., 82 F.3d 16,21 (2d Cir.
1996). Finally, a denial of a transfer request may constitute an adverse employment action
10

where an employee's work environment prior to the request is objectively unfavorable.
See Mecklenberg v. N.Y.C. Off Track Betting. 42 F. Supp. 2d 359, 378 (S.D.N.Y.

1999)(holding that denial of a request to transfer, from a department where working conditions
were objectively unfavorable due to the measurable shortage in staff, to a department where
conditions were more favorable constituted an adverse employment action).

A "pure lateral transfer, that is, a transfer that does not involve a demotion in form or
substance, cannot rise to the level of a materially adverse employment action." Adeniii v.

Admin,for Children Serv.. NYC.43 P. Supp. 2d 407,426(S.D.N.Y. 1999)(intemal citations

omitted). "[T]he mere fact that an employee has been transferred or that his job responsibilities
have changed is not in itself sufficient to show an adverse change in working
conditions." Cooper v. N.Y. State Den't of Human Rights. 986 F. Supp. 825, 828(S.D.N.Y.

1997). Thus,the denial of a request to transfer, where there are no significant change in duties or

opportunities for advancement, does not constitute an adverse employment action.
Here, Plaintiff alleges that his hardship transfer request is a "transfer that an employee is
entitled to seek in situations where there continued employment within their current assignment

presents a medical or financial hardship." (Am. Compl.^ 16). Defendant contends that
"Plaintiff does not allege that he sought a transfer to a position of higher rank, prestige,

compensation, or any other material difference in the terms and conditions of his employment."

(Mot. at 9).^ This court agrees with Defendant that the lateral transfer request, even under the
more liberal retaliation standard, fails to rise to the level of being an adverse employment action

^ Plaintiff fails to address Defendant's motion with regard to whether his transfer denial constitutes an adverse

action. Plaintiffs failure to respond is an independent reason to dismiss his retaliation and discrimiuation claims.
See Martinez v. Sanders. No.02-CV-5624(RCC),2004 WL 1234041, at *3(S.D.N.Y. June 3,2004)(findiug that

the plaintiffs failure to oppose dismissal of certain claims enabled the court to deem them abandoned).

11

for purposes ofPlaintiffs discrimination and retaliation claims. Beyer v. Ctv. of Nassau,524
F.3d 160,164(2d Cir. 2008)("A denial of a transfer may ... constitute an adverse employment

action, but we require a plaintiff to proffer objective indicia of material disadvantage; subjective,
personal disappointment is not enough."(quotation marks omitted)); Williams v. R.H. Donnellev.
Corp.. 368 F.3d 123,128(2d Cir. 2004)(concluding that the denial of an employee's request for
transfer is not an adverse employment action unless the denial "created a materially significant
disadvantage in her working conditions").

h. Plaintiff's requestfor an early returnfrom his leave ofabsence

Defendant contends that "the time it took DOE to process Plaintiffs return to work from
his leave of absence cannot support a discrimination claim."(Mot. at 11). As Defendant's

motion points out. Plaintiff has not alleged that there was a"DOE policy or any law [that]

entitled him to have his request to return early from leave processed immediately or by a date of
his choosing." (Id. at 10.) Plaintiff does not dispute this argument in his reply. (See PI. Opp'n.)
Therefore,the court fmds that Plaintiff has abandoned this argument. See also Bonilla v.
SmithfieldAssocs. LLC. No.09-CV-1549(DC),2009 WL 4457304, at *4(S.D.N.Y. Dec. 4,

2009)(holding that, because the plaintiff"fail[ed] to respond to the remaining two arguments"

for dismissing certain ofthe claims, he had "effectively abandoned" those claims). Even if
Plaintiff had not effectively abandoned this claim, the denial of his early request to retum to the
workplace does not amount to a material adverse action that would dissuade a reasonable

employee from protesting discrimination in the workplace. Cf Burlington Northern. 548 U.S. at
68.

12

c. Plaintiff's transfer to the Absent Teacher Reserve

Plaintiff alleges that his placement in the ATR upon retuming to work constitutes an
adverse employment action for purposes of retaliation claim. (Am. Compl.^ 28). The court

agrees with Defendant that Plaintiff has failed to allege that his transfer to the ATR is an adverse
employment action. (PI. Opp'n at 1 n.l).
Plaintiff alleges that as a result of being placed in the ATR he now teaches elementary

school, as opposed to his previous position as a math teacher. (Am. Compl.^ 28). The mere

placement ofPlaintiff in the ATR does not constitute an adverse employment action for purposes
of a discrimination or retaliation claim. See e.g., Harris v. Bd. of Educ. ofthe Citv Sch. Dist. of

the Citv of N.Y.. 230 F. Supp. 3d 88, 106(E.D.N.Y. 2017)("Becoming a member ofthe ATR []
does not by itself qualify as a materially adverse employment action. Plaintiff did not experience
a change in salary or benefits after she received an appropriate letter of excess, a further
indication that she did not suffer an adverse employment action."); Moschetti v. N.Y.C. DepT of
Educ.. No. 15-CV-3161 (KMK),2018 WL 4759787,at *16(S.D.N.Y. Sept. 28,2018)("Even
assuming Plaintiff was placed on ATR status [], Plaintiff does not explain how ATR status serves
as a demotion or loss of wages."); Pimentel. 2002 WL 977535, at *3 (requiring something more
than an undesirable assignment to prove adverse action).

Because Plaintiff has failed to allege an adverse employment action,the court hereby
dismisses Plaintiffs discrimination and retaliation claims under the ADA."^

* Defendant also contends that Plaintiffs retaliation and discrimination claims do not allege a "causal connection

between the protected activity and the adverse employment action." (Mot. at 17.) Because the court has found that
Plaintiff has failed to plead an adverse employment action, the court need not address whether there was a causal
connection between the purposed adverse actions and the alleged protected activity.
13

C.

Failure to Accommodate Claim

An employer is liable for a failure to accommodate if: "(1)[the] plaintiff is a person with
a disability under the meaning ofthe [applicable statute];(2)an employer covered by the statute
had notice of his disability;(3) with reasonable accommodation, plaintiff could perform the
essential functions ofthe job at issue; and(4)the employer has refused to make such
accommodations." McMillan. 711 F.3dat 125-26.

Defendant argues that the DOE's approval of Plaintiffs medical leave of absence
demonstrates that the DOE did not, in fact, fail to accommodate Plaintiff. Defendant notes that

"an employee who accepts the reasonable accommodation granted by the employer has no claim
under the ADA for failure to accommodate or failure to engage in an interactive process." (Mot.

at 20). Plaintiff does not respond to Defendant's argument regarding Plaintiffs granted medical
leave. Rather,Plaintiff replies that he alleged that he sought a transfer,"and that despite initially
being granted, it was subsequently denied with no legitimate business reason."(PI. Opp'n at 4).
The court declines to decide whether Defendant's denial ofPlaintiffs request to transfer

was reasonable or not for purposes of Plaintiffs accommodation claim. The Second Circuit has
recognized that, in the context of a motions on the pleadings,"[w]hile there may be claims
requesting [accommodation] under the ADA that warrant dismissal as unreasonable as a matter
oflaw," many cases.require "a fact-specific inquiry," and are therefore not properly disposed of
at the pleading stage. Staron v. McDonald's Corp., 51 F.3d 353,356(2d Cir. 1995). See also
Tullv-Boone v. N. Shore-Long Island Jewish Hosp. Svs.. 588 F. Supp. 2d 419,425(E.D.N.Y.

2008); Goonan v. Federal Reserve Bank ofNew York. 916 F. Supp. 2d 470,482(S.D.N.Y.
2013)("At the motion to dismiss stage, the [defendant] bears the weighty burden ofshowing that

the fact-intensive inquiry prerequisite to a finding ofreasonable accommodation falls completely

14

in its favor."). Because the court declines to resolve the factual dispute as to whether Plaintiffs
transfer denial was reasonable the court denies Defendant's motion as to Plaintiffs
accommodation claim under the ADA.
D.

NYSHRL & NYCHRL Retaliation Claims
t

In Plaintiffs response to Defendant's motion, Plaintiff concedes that any allegations

pertaining to his NYSHRL and NYCHRL claims that occurred prior to January 2018 are barred
from review in light ofthe election ofremedies doctrine. (PI. Opp'n. at 2-3). The remaining

allegations that pertain to Plaintiff's NYSHRL and NYCHRL retaliation claims are as follows:
(a)DOE "refused to accommodate him with a transfer to a different school";(b)DOE "refus[ed]
to permit him to [retum]to his prior school"; and (c)DOE placed him in the ATR,when he had
"previously [] been assigned to a permanent position as a math teacher" in retaliation for filing a
complaint with the New York State Division of Human Rights(Am. Compl.
1.

25-28).

NYSHRL Claim

Plaintiffs state law retaliation claim is reviewed under the same burden-shifting

approach of McDonnell Douglas as his federal retaliation claim. S^ Kwan.737 F.3d at 843.
Plaintiff has failed to allege a NYSHRL retaliation claim because, as described above. Plaintiff
has not pled an adverse action. Accordingly, Defendant's motion as to Plaintiffs NYSHRL
claim is granted.
2.

NYCHRL Claim

The NYCHRL's retaliation provision "protect[s] plaintiffs who oppose any practice
forbidden under the law from conduct reasonably likely to deter a person engaging in such
action." Chen v. Citv Univ. ofN.Y., 805 F.3d 59,76(2d Cir. 2015)(alteration adopted)(internal

quotation marks omitted). "[C]ourts must analyze NYCHRL claims separately and
15

independently from any federal and state law claims." Mihalik v. Credit Agricole Cheuvrenx N.
Am.,Inc.. 715 F.3d 102, 109(2d Cir. 2013)(citation omitted). "[T]lie NYCHRL is reviewed ...

more liberally than federal or state discrimination claims, but a plaintiff still must prove 'the
conduct is caused at least in part by discriminatory or retaliatory motives.'" Fenner v. News
Corp.. No.09-CV-9832(LGS),2013 WL 6244156, at *17(S.D.N.Y. Dec. 2,2013)(quoting
Mihalik. 715 F.3d at 113). Still,"the NYCHRL is not a general civility code." Mihalik, 715
F.3d at 113 (quotation marks omitted).

The NYCHRL does not require an adverse employment action and a plaintiff must only
provide evidence she was treated "less well" than other employees based on her protected status.
See, e.g.. Williams v. Regus Mgmt. Grp.. LLC,836 F. Supp. 2d 159,173(S.D.N.Y. 2011);
Zambrano-Lamhaouhi v. N.Y.C. Bd. of Educ.. 866 F. Supp.2d 147,160(E.D.N.Y. 2011).
Otherwise, a pn'ma facie case of retaliation faces the same requirements under NYCHRL as
under NYSHRL or Title VII. Malena v. Victoria's Secret Direct. LLC.886 F. Supp. 2d 349,362
(S.D.N.Y. 2012).

Here, Plaintiff provides no allegations suggesting that he was treated differently or "less
well" because of his alleged disability. Plaintiff alleges that he was "treated in an hostile and

abusive manner to which his similarly situated, non-Caucasian colleagues were not similarly
subjected." (Am. Compl.^ 12). This conclusory allegation alone is not enough to establish that
Plaintiff was treated "less well"than other employees. Tavlor v. Citv of New York.207 F. Supp.

3d 293,308-09(S.D.N.Y. 2016)(noting that "a plaintiff must still plead some facts that her

employers' actions disadvantaged her and that the action was connected to her protected
activity"!: See Feliciano v. Citv of New York. No. 14-CV-6751 (PAE),2015 WL 4393163, at *8
(S.D.N.Y. July 15, 2015)(dismissing NYCHRL retaliation claim where plaintiff did

16

"not plead

facts that would allow an inference that he was disadvantaged by his transfer.")

(emphasis in original). Based on the facts as pled, there is an insufficient basis to find that
Plaintiff has alleged a retaliation claim even under the more lenient NYCHRL standard.

Therefore, Defendant's motion as to Plaintiffs NYCHRL retaliation claim is granted.
V.

CONCLUSION

For the foregoing reasons, t)efendanfs motion for ajudgment on the pleadings(Dkt. 17)
is GRANTED IN PART and DENIED IN PART. The motion is granted with respect to the
following claims, which are dismissed:
• Plaintiffs § 1983 claim;
• Plaintiffs ADA Discrimination and Retaliation Claims; and
•

Plaintiffs NYSHRL and NYCHRL claims.

The motion is denied with respect to the following claim:
• Plaintiffs failure to accommodate claim.

SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyi,New York

NICHOLAS G. GARAUFIt

May n,2019

United States District Judge

17