Rodriguez v. Glen Cove City School District et al

Filing 26

MEMORANDUM & ORDER granting in part and denying in part 19 Motion to Dismiss; For the foregoing reasons, Defendants' motion to dismiss (Docket Entry 19) is GRANTED IN PART and DENIED IN PART. Specifically, Plaintiff's ADA claims and ret aliation claims are DISMISSED. In addition, Plaintiff's claims against Defendants Laria, Zocchia, and McQuair are also DISMISSED and the Clerk of the Court is directed to TERMINATE those parties as Defendants in this action. Defendants' motion is otherwise DENIED. So Ordered by Judge Joanna Seybert on 3/8/2016. C/ECF (Valle, Christine) (Main Document 26 replaced on 3/8/2016) (Valle, Christine).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
SUSAN RODRIGUEZ,
Plaintiff,
MEMORANDUM & ORDER
14-CV-3815(JS)(ARL)

-againstGLEN COVE CITY SCHOOL DISTRICT,
GLEN COVE CITY BOARD OF EDUCATION,
NELSON IOCOLANO, individually and
in his official capacity, JOSEPH
LARIA, individually and in his
official capacity, LOUIS ZOCCHIA,
individually and in his official
capacity, and IDA MCQUAIR,
individually and in her official
capacity,

Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Steven A. Morelli, Esq.
The Law Offices of Steven A. Morelli, P.C.
1461 Franklin Ave.
Garden City, NY 11530
For Defendants:

Adam I. Kleinberg, Esq.
Kevin Levine, Esq.
Sokoloff Stern LLP
179 Westbury Ave.
Carle Place, NY 11514

SEYBERT, District Judge:
Plaintiff Susan Rodriguez (“Plaintiff”) commenced this
action on June 18, 2014, against defendants the Glen Cove City
School District (the “District”), the Glen Cove City Board of
Education (the “Board”), Nelson Iocolano (“Iocolano”), Joseph

Laria (“Laria”), Louis Zocchia (“Zocchia”), Cassandra Shannon
(“Shannon”),

Ida

McQuair

(“McQuair”),

and

(“Larocca” and collectively, “Defendants”).1

Janice

Larocca

On April 24, 2015,

Plaintiff filed a Second Amended Complaint (the “SAC”) alleging
that Defendants discriminated and retaliated against her on the
basis of her race and because of her disability, in violation of
Title VII of the Civil Rights Act of 1964, as amended (“Title
VII”), 29 U.S.C. § 2000e et seq.; the New York State Human Rights
Law (“NYSHRL”); the Americans with Disabilities Act of 1990 (the
“ADA”),

42 U.S.C. § 12101

et

seq.;

Section

504

of

the

Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., N.Y. EXEC. LAW
§ 296 et seq.; 42 U.S.C. § 1981; the Equal Protection Clause of
the Fourteenth Amendment.

(See SAC, Docket Entry 17.)

Pending

before the Court is Defendants’ motion to dismiss the Second
Amended Complaint.

(Docket Entry 19.)

For the following reasons,

Defendants’ motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND2
Plaintiff, an African-American female who suffers from
multiple sclerosis, is employed by the District as a tenured
mathematics teacher in the Finley Middle School (the “School”).

Shannon and Larocca were subsequently terminated as defendants
in this action on April 27, 2015.
1

The following facts are drawn from the Second Amended Complaint
(“SAC”) and are assumed true for the purposes of this Memorandum
and Order.
2

2

(SAC ¶¶ 1, 19.)
(SAC

¶ 19.)

Plaintiff began working at the School in 1998.
Throughout

her

employment,

Plaintiff

received

positive evaluations, some of which credited her with being a
mentor to other teachers within the school.

(SAC ¶ 22.) In 2010,

for example, Shannon began teaching seventh grade math for the
first time.

Upon Shannon’s request, Plaintiff provided Shannon

with lesson plans that Plaintiff created. Shannon found the lesson
plans useful, used them throughout the year, and in the fall of
2011 she passed the lesson plans to a new hire.

(SAC ¶ 23.)

In the spring of 2012, Plaintiff was appointed to teach
the seventh grade honors math class.

(SAC ¶ 25.)

teaching the class in the fall of 2012.
Iocolano

was

hired

as

the

School’s

She began

That fall, Defendant

Principal.

(SAC

¶ 26.)

According to Plaintiff, Iocolano harbored a discriminatory animus
against African Americans, as evidenced by, among other things,
his refusal to hang a portrait of Nelson Mandela in his office.
(SAC ¶ 26.)
In

October

2012,

Plaintiff

students failed her first graded test.

discovered
(SAC ¶ 28.)

that

several

Plaintiff was

concerned, and upon investigating, discovered that some of her
students did not meet the academic requirements to be in the
seventh-grade honors math class.

(SAC ¶ 29.)

Plaintiff alleges,

upon information and belief, that several Caucasian students were
placed in the honors class because their parents wanted the
3

students in a class with predominantly white students.
30-31.)

(SAC ¶¶

Plaintiff voiced her concerns to Iocolano and Israel, and

suggested transferring some students out of her class. (SAC ¶¶ 3334.)

Iocolano and Israel ignored her suggestion and instead

instructed Plaintiff to stop using the pacing guide and curriculum
maps that were created for the course in the summer of 2012.

(SAC

¶ 34, 36.)
At the end of October, a medical emergency required
Plaintiff to take a leave of absence until mid-December.
¶ 38.)

(SAC

During her absence, defendant Shannon taught Plaintiff’s

seventh grade honors math class.
Plaintiff

on

performance

December
had

14,

improved

2012
under

preferred Shannon to Plaintiff.

(SAC ¶ 39.)
and

informed

Shannon,
(SAC ¶ 40.)

and

Iocolano called
her

that

that

class

students

Iocolano also told

Plaintiff that she would need to observe a number of Shannon’s
classes before she could resume teaching the seventh grade honors
math class.

(SAC ¶ 40.)

Plaintiff returned to work on December 17, 2012 and
observed Shannon teaching her class.

Plaintiff claims that, as a

veteran educator, she was embarrassed to be forced to observe
another teacher in front of her students.

(SAC ¶ 41.)

When

Plaintiff eventually began teaching honors math again in January
2013, she was required to send all of her lessons, homework

4

assignments, and other written materials to Shannon for review.
(SAC ¶ 42.)
Following

a

mid-term

exam,

the

School

received

complaints from parents about both the difficulty of the honors
math course and Plaintiff’s teaching abilities.

(SAC ¶¶ 44-46.)

Defendant McQuair, a member of the Board of Education and the
mother of one of Plaintiff’s students, complained directly to
Plaintiff about her performance.

(SAC ¶ 48.)

According to

Plaintiff, she spoke to her “with a demeaning and condescending
tone.”

(SAC ¶ 48.)

On one occasion, McQuair left a message for

Plaintiff, stating that “the honors math class was too difficult.”
(SAC ¶ 49.) When Plaintiff called McQuair back, McQuair threatened
Plaintiff’s job and stated that she was a member of the District
Superintendent’s inner circle.

(SAC ¶¶ 49-50.)

On February 5, 2013, Plaintiff was called to a meeting
at the Superintendent’s office.

There, Plaintiff was removed from

her position as an honors math teacher and replaced by Shannon for
the remainder of the year.

(SAC ¶ 52.)

Plaintiff claims, upon

information and belief, that McQuair was influential in this
decision.

(SAC ¶ 52.)

Iocolano informed Plaintiff during the

meeting that: (1) she would need to be observed for the remainder
of the year in the “regular” seventh-grade math class she was
assigned to teach; (2) she needed to continue to observe Shannon’s

5

classes; and (3) if her performance did not improve, the District
would take measures to relieve her of her duties.

(SAC ¶¶ 55-56.)

On February 25, 2013, Iocolano observed Plaintiff’s
class and assigned her a rating of “developing,” which “indicated
her lesson was less than effective.”

(SAC ¶ 57.)

This was the

first negative performance evaluation that Plaintiff received
during her fourteen-year tenure with the District.

(SAC ¶ 57.)

Although it was a generally accepted practice that teachers who
felt they were observed on a “bad day” could request a second
observation, Plaintiff’s request for a second observation was
denied.
I.

(SAC ¶ 58.)

Saturday Academy
In February 2013, Plaintiff proposed the idea of holding

a “Saturday Academy” program to bring the students up to Statemandated standards.
Saturday
position.

math

(SAC ¶ 60.)

classes,

(SAC ¶ 61.)

When the school began organizing

Plaintiff

applied

for

the

teaching

Plaintiff was previously told she would be

selected for the position because she helped develop the program.
(SAC ¶ 62.)

On March 7, 2013, however, Plaintiff was informed

that another Caucasian teacher had been selected for the position.
(SAC ¶ 63.)
II. Plaintiff’s EEOC Complaint
On March 28, 2013, Plaintiff filed a complaint against
Defendants with the EEOC.

(SAC ¶ 65.)
6

Subsequently, Plaintiff

was informed that she was not scheduled to teach honors math class
during the 2013-2014 school year.
In

May

2013,

(SAC ¶ 66.)

Plaintiff

underwent

another

formal

performance evaluation and received an “Effective” rating. (SAC ¶
68.)

But in September 2013, she was given an overall rating of

“Developing” for her 2012-2013 yearly performance.

(SAC ¶ 68.)

In addition, she was designated as the “teacher of record” for the
entire 2012-2013 school year, even though she was out on medical
leave for a significant portion of the year. (SAC ¶ 69.) Plaintiff
claims that this designation “served to artificially lower [her]
overall performance score.”
Plaintiff

also

(SAC ¶ 69.)
alleges

that

Defendants

temporarily

assigned Plaintiff to a classroom without air conditioning for the
2013 to 2014 school year.

(SAC ¶ 71.)

Because Plaintiff suffers

from multiple sclerosis, hot temperatures trigger her symptoms.
(SAC ¶ 72.)
III.

Procedural History
On March 25, 2015, the Court issued an Order (the “March

2015 Order”) dismissing Plaintiff’s claims for First Amendment
retaliation and for maintaining a hostile work environment. (March
2105 Order, Docket Entry 16, at 24.)
Plaintiff

leave

to

discrimination claims.

amend

to

However, the Court granted

allow

Plaintiff

to

allege

Plaintiff filed the SAC on April 24, 2015,

(Docket Entry 17), and Defendants now move to dismiss the SAC.
7

(Docket Entry 19.)

Defendants principally argue that Plaintiff

(1) does not allege a disability discrimination claim, (2) does
not state a claim for retaliation, and (3) Plaintiff’s state law
claims must be dismissed against certain defendants.

(Defs.’ Br.,

Docket Entry 21, at 9-14, 16-19, 20-24.)
DISCUSSION
I.

Legal Standard
In deciding a Rule 12(b)(6) motion to dismiss, the Court

applies a “plausibility standard,” which is guided by “[t]wo
working principles.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); Harris v. Mills, 572
F.3d 66, 71–72 (2d Cir. 2009).

First, although the Court must

accept all allegations as true, this “tenet” is “inapplicable to
legal conclusions;” thus, “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do
not suffice.”

Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949-50;

Harris, 572 F.3d at 72.

Second, only complaints that state a

“plausible claim for relief” can survive a Rule 12(b)(6) motion to
dismiss.

Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950.

Determining

whether a complaint does so is “a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.”

Id.; Harris, 572 F.3d at 72.

In deciding a motion to dismiss, the Court is confined
to “the allegations contained within the four corners of [the]
8

complaint.”

Pani v. Empire Blue Cross Blue Shield, 152 F. 3d 67,

71 (2d Cir. 1998).

However, this limitation has been interpreted

broadly to include any document attached to the complaint, any
statements

or

documents

incorporated

in

the

complaint

by

reference, any document on which the complaint heavily relies, and
anything of which judicial notice may be taken.

See Chambers v.

Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002) (citations
omitted); Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.
1991).
II.

Adverse Employment Action
Defendants argue that Plaintiff’s race and disability

discrimination claims must be dismissed because the Complaint does
not allege that Plaintiff suffered an adverse employment action,
a required element of both a discrimination claim brought under
either Title VII or the ADA. (Defs.’ Br. at 9-10.)

“To make out

a prima facie discrimination claim, a plaintiff must demonstrate
the following: (1) [s]he was within the protected class; (2) [s]he
was qualified for the position; (3) [s]he was subject to an adverse
employment action; and (4) the adverse action occurred under
circumstances giving rise to an inference of discrimination.”
Chung v. City Univ. of N.Y., 605 F. App’x 20, 21 (2d Cir. 2015)
(internal quotation marks and citation omitted)
A plaintiff “sustains an adverse employment action if he
or she endures a ‘materially adverse change’ in the terms and
9

conditions of employment.”

Galabya v. N.Y. City Bd. of Educ., 202

F.3d

2000)

636,

640

(2d

Cir.

(citations

omitted).

To

be

“materially adverse,” the change must be “more disruptive than a
mere inconvenience or an alteration of job responsibilities.”

Id.

(quoting Crady v. Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d
132, 136 (7th Cir. 1993).

Examples include “termination of

employment, a demotion evidenced by a decrease in wage or salary,
a

less

distinguished

significantly

title,

diminished

a

material

material

loss

of

responsibilities,

benefits,
or

other

indices . . . unique to a particular situation.” Chung, 605 F.
App’x at 22 (quoting Sanders v. N.Y.C. Human Res. Admin., 361 F.3d
749, 755 (2d Cir. 2004) (ellipsis in original).

Here, Plaintiff

claims that she suffered adverse employment actions when she was:
“(1) stripped of her position as an Honors Math teacher [from]
2012-2013; (2) denied the paid position of Saturday Math Academy
teacher; (3) denied the position of Honors Math teacher [from]
2013-2014; and (4) given negative performance evaluations, as well
as being erroneously designated as teacher of record.”
Opp. Br., Docket Entry 23, at 10.)

(Pl.’s

The Court will address each of

Plaintiff’s allegations below.
A.

Saturday Math Academy
The fact that Plaintiff was not chosen for a position as

a Saturday math academy teacher is not an adverse employment
action.

Valenti v. Massapequa Union Free Sch. Dist., No. 09-CV10

977, 2012 WL 1038811, at *14 (E.D.N.Y. Mar. 28, 2012) (“Not
receiving a requested or desired assignment is not an adverse
employment action.”); Ruggieri v. Harrington, 146 F. Supp. 2d 202,
217 (E.D.N.Y. 2001) (Plaintiff “suffered no adverse employment
action as a result of being denied the occasion to serve as
department chair and to teach certain summer courses that she
wanted to teach . . . .”).

Importantly, Defendants’ decision not

to allow Plaintiff to be a Saturday math academy teacher was not
a material change in the terms and conditions of her employment as
a tenured middle school teacher.

Although Plaintiff believed she

would be selected to teach the class, Defendants’ failure to
fulfill her expectation does not create an adverse employment
action.
B.

Plaintiff’s Removal as the teacher of the Honors Math
Class
Plaintiff

also

argues

that

Defendants’

decision

to

remove her as the seventh-grade honors math class teacher was an
adverse employment action.

(Pl.’s Opp. Br. at 10.)

Not all

lateral transfers within an institution rise to the level of an
adverse

employment

action.

Only

internal

transfers

which

“result[] in a change in responsibilities so significant as to
constitute a setback to the plaintiff’s career” are actionable,
while “pure” lateral transfers--those which cannot be classified
as demotion in form or substance--are not.

11

Galabya, 202 F.3d at

640-41 (2d Cir. 2000) (citing Rodriguez v. Board of Educ., 620
F.2d 362 (2d Cir. 1980)).

For example, In Brady v. Wal-Mart

Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008), the court sustained
a jury’s finding that it was an adverse employment action to
transfer a Walmart employee from a job working at the in-store
pharmacy to a position “collecting shopping carts and garbage in
the parking lot.”

Although the employee’s wages and benefits

remained unchanged, the Court found that the transfer resulted in
a

“less

distinguished

title”

material responsibilities.”

and

Id.

“significantly

diminished

(quoting Patrolmen’s Benevolent

Ass’n of N.Y. v. City of N.Y., 310 F.3d 43, 51 (2d Cir. 2002).
Plaintiff alleges that she was removed from her position
teaching an honors math class and relegated to a position teaching
a “regular” math class.

Although one can infer that teaching an

honors math class could be more prestigious than teaching a regular
math class, the Complaint is devoid of facts indicating that
teaching

“regular”

seventh-grade

math

was

materially

less

prestigious, more suited to Plaintiff’s skills, or less conducive
to her career advancement. See Giambattista v. Am. Airlines, Inc.,
5 F. Supp. 3d 284, 294 (E.D.N.Y.) aff’d, 584 F. App’x 23 (2d Cir.
2014).

The Complaint therefore does not plausibly allege that

removing Plaintiff as the teacher of honors math, on its own, was
an adverse employment action.

12

C.

Negative Performance Evaluations
In the disparate treatment context, receiving negative

performance evaluations is not an adverse employment action unless
there is an accompanying negative result.

Valentine v. Standard

& Poor’s, 50 F. Supp. 2d 262, 283 (S.D.N.Y. 1999) aff’d, 205 F.3d
1327 (2d Cir. 2000); Benedith v. Malverne Union Free Sch. Dist.,
38

F.

Supp.

3d

286,

325

(E.D.N.Y.

2014)

(“alleged

unfair

performance evaluations do not constitute an adverse employment
action for purposes of the anti-discrimination statutes”); Kaur v.
N.Y. City Health & Hosps. Corp., 688 F. Supp. 2d 317, 332 (S.D.N.Y.
2010) (explaining that “a negative performance evaluation only
qualifies as an adverse employment action if there are accompanying
adverse consequences affecting the terms of employment”).

Here,

no material negative consequences flowed from the “Developing”
score Plaintiff received on her performance evaluations in either
February or September 2013.

Notably, Defendants removed Plaintiff

from her position teaching the honors math program, required her
to observe Shannon’s classes, and required her to be monitored
before she received her first negative performance evaluation.
See Gordon v. City of N.Y., No 14-CV-6115, 2015 WL 3473500, at *8
(S.D.N.Y. June 2, 2015).

Therefore, Plaintiff cannot rely upon

her negative performance reviews as a basis for discrimination
claims.

13

D.

Atmosphere of Adverse Acts
Plaintiff also alleges that even if each individual

incident described in the Complaint is not an adverse employment,
the incidents collectively amount to an adverse action.
Opp. Br. at 12.)

(Pl.’s

The Second Circuit has held that “a combination

of seemingly minor incidents” may become an adverse employment
action once the incidents “reach a critical mass.”
v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002).

See Phillips

Although there is

still some debate whether the “atmosphere” analysis should be
applied to disparate impact discrimination claims, the Second
Circuit has implicitly recognized the doctrine’s applicability.
See, Moskowitz v. Coscette, 3 F. App’x 1, 5 (2d Cir. 2001) (holding
that

“the

combination

of

the

commencement

of

disciplinary

proceedings against the plaintiff, his assignment to desk duty
with

the

incident

loss

of

potential

overtime,

negative

evaluations, and denial of promotion to sergeant were a sufficient
basis on which the jury could conclude that the plaintiff suffered
adverse employment action.”); Cunningham v. N.Y. Dep’t of Labor,
326 F. App’x 617, 619 (2d Cir. 2009) (a “litany of actions”
including (1) unfounded charges of time abuse, (2) moving the
plaintiff’s office away from his staff; (3) opposition to hiring
plaintiff’s son in a summer job; (4) discontinuing a training
conference organized by plaintiff; and (5) excluding plaintiff
from a conference and a decision to hire a consultant did not
14

create an adverse employment action); see also

Cotterell v.

Gilmore, 64 F. Supp. 3d 406, 431-32 (E.D.N.Y. 2014) (collecting
cases), appeal denied, No. 12-CV-3808, 2015 WL 6550761 (E.D.N.Y.
Oct. 27, 2015).
Assuming that multiple incidents can be aggregated to
form an adverse employment action for purposes of a discrimination
claim, the “key inquiry remains, [ ] whether that combination
changed the terms of a plaintiff’s employment.”

See Mento v.

Potter, No. 08-CV-0074S, 2012 WL 1908920, at *8 (W.D.N.Y. May 25,
2012).

Plaintiff claims the following incidents, taken together,

amount

to

an

adverse

employment

action

discrimination

claims:

(1)

transferred

being

for

purposes
from

a

of

her

position

teaching honors math to one teaching regular math, (2) not being
selected for a post teaching the Saturday math academy, (3) being
subject

to

increased

scrutiny;

(4)

receiving

two

negative

performance evaluations; and (5) being wrongfully designated as
the teacher of record for the 2012-2013 school year.

(Pl.’s Opp.

Br. at 10.) Drawing all favorable inferences in Plaintiff’s favor,
it would be inappropriate at the motion to dismiss stage to hold
that these actions collectively do not amount to an adverse
employment action.

Notably, most of these incidents occurred in

a single month, including Plaintiff’s removal from her position as
an honors math teacher; increased scrutiny brought upon Plaintiff
in the form of monitoring; Plaintiff not being selected as a
15

Saturday academy teacher; and Plaintiff receiving the her first
negative performance evaluation in her fourteen-year tenure with
the District.

Although Plaintiff’s salary, benefits, tenure, and

designation as a seventh-grade math teacher remained unchanged, it
is

conceivable

that

her

opportunities

diminished as a result of these events.
necessary

to

determine

whether,

for

advancement

were

Discovery is therefore

collectively,

these

events

amounted to an adverse employment action.
III. Disability Discrimination
Defendant argues that Plaintiff has not alleged facts
showing Plaintiff suffered an adverse action under circumstances
giving rise to an inference of disability discrimination. (Defs.’s
Br. at 14.)

In its March 2015 Order, the Court found that

Plaintiff’s allegations were “devoid of any allegations that raise
even

a

remote

Plaintiff’s
Complaint

inference

having

plead

that

Multiple

facts

the

Sclerosis,”

showing

that

discrimination because of her illness.
19.)

Defendants
nor

Plaintiff

even

did
was

the

knew

of

Amended

subject

to

(March 2015 Order at 18-

The SAC does not set forth any additional facts showing that

Plaintiff was discriminated against because she was disabled.
Notably, Plaintiff does not even oppose Defendants’ motion to

16

dismiss

her

disability

discrimination

claim.

Therefore,

Plaintiff’s disability discrimination claim is DISMISSED.
IV. Retaliation
Plaintiff alleges that Defendants retaliated against her
for filing a discrimination claim with the U.S. Equal Employment
Opportunity

Commission

(the

“EEOC”)

by:

(1)

denying

her

the

opportunity to teach seventh-grade honors math for the 2013-2014
school year, (2) issuing her negative performance evaluation in
September 2013 for the 2012-2013 academic year, and (3) being
designated as the teacher of record for the 2012-2013 school year,
despite

the

fact

that

approximately two months.

she

was

out

on

medical

(Pl.’s Opp. Br. at 13-15.)

leave

for

To meet the

initial burden of establishing a prima facie case of retaliation,
Plaintiff must show that: “(1) [she] was engaged in protected
activity; (2) [Defendants] w[ere] aware of that activity; (3)
[Plaintiff] suffered an adverse employment action; and (4) there
was a causal connection between the protected activity and the
adverse employment action.”

Reed v. A .W. Lawrence & Co., 95 F.3d

1170, 1178 (2d Cir. 1996) (citation omitted).
Here, Plaintiff has failed to allege a plausible causal
connection

between

her

protected

activity--filing

her

EEOC

complaint--and an adverse employment action. As an initial matter,
Defendants’ failure to assign Plaintiff to teach the honors math
class

cannot

form

the

basis

of
17

a

retaliation

claim

because

Plaintiff was removed from her position as the honors math teacher
in February 2013, before she filed her EEOC complaint on March 28,
2013.

In addition, the only causal connection between Plaintiff’s

protected activity and her negative performance evaluation in
September 2013 is the timing of these events.

However, “[w]here

timing is the only basis for a claim of retaliation, and gradual
adverse job actions began well before the plaintiff had ever
engaged in any protected activity, an inference of retaliation
does not arise.”

Slattery v. Swiss Reinsurance Am. Corp., 248

F.3d 87, 95 (2d Cir. 2001); see also Floyd v. S. Westchester BOCES,
No. 14-CV-5842, 2015 WL 5459992, at *9 (S.D.N.Y. July 31, 2015).
Here, the bulk of the conduct Plaintiff complains of took place
before she filed her EEOC complaint.

Indeed, Plaintiff received

her first negative performance evaluation and was removed from her
position as an honors math teach in February 2013, before filing
her EEOC complaint.

In addition, she received an intervening

“Effective” performance evaluation in May 2013, shortly after her
protected activity.

Therefore, she has not plausibly alleged a

causal connection between her protected activity and any adverse
employment actions.

Plaintiff’s retaliation claim is therefore

DISMISSED.
IV.

Plaintiff’s Aiding and Abetting Claims
Plaintiff

brings

claims

against

Iocolano,

Laria,

Zocchia, and McQuair for aiding and abetting Defendants’ alleged
18

discrimination in violation of the NYSHRL, the Equal Protection
Clause, and 42 U.S.C. § 1981.
VII,

individual

liability

(SAC ¶ 82.)
is

available

42 U.S.C. § 1983, and 42 U.S.C. § 1981.

In contrast to Title
under

the

NYSHRL,

The NYSHRL prohibits

aiding and abetting the “doing of any of the acts forbidden under
this article.”

N.Y. EXEC. LAW § 296(6); Feingold v. N.Y., 366 F.3d

138, 157 (2d Cir. 2004); Ramirez v. Hempstead Union Free Sch. Dist.
Bd. of Educ., 33 F. Supp. 3d 158, 168-69 (E.D.N.Y. 2014).

Thus,

an individual who “actually participates” in the conduct giving
rise to the claim may be held personally liable.

Ramirez, 33 F.

Supp. 3d at 169; Wei Hong Zheng v. Wong, No. 07-CV-4768, 2009 WL
2601313, at *6 (E.D.N.Y. Aug. 24, 2009).
Defendants argue that Plaintiff’s aiding and abetting
claims against Defendants Laria, Zocchia, and McQuair must be
dismissed because Plaintiff did not name them in her notice of
claim, as required by Education Law § 3813(1).
21.)

(Defs.’ Br. at

New York Education Law § 3813 states that no action shall

proceed against a school district or officer of a school unless
“it shall appear by and as an allegation in the complaint or
necessary moving papers that a written verified claim upon which
such action . . . is founded was presented to the governing body
of said district or school within three months after the accrual
of such claim.”

N.Y. EDUC. LAW § 3813(1).

Plaintiff does not

dispute that she did not name Laria, Zocchia, and McQuair in her
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notice of claim, however, she argues that Defendants Laria (the
Superintendent)

and

Zocchia

(the

District’s

Assistant

Superintendent of Human Resources) must remain Defendants in this
action because they are not “school officers.”
19.)

(Pl.’s Opp. Br. at

Under the New York Education Law, the term “school officer”

is defined as follows:
The term “school officer” means a clerk,
collector,
or
treasurer
of
any
school
district; a trustee; a member of a board of
education or other body in control of the
schools by whatever name known in a union free
school district, central school district,
central high school district, or in a city
school district; a superintendent of schools;
a district superintendent; a supervisor of
attendance or attendance officer; or other
elective or appointive officer in a school
district whose duties generally relate to the
administration of affairs connected with the
public school system.
N.Y. EDUC. LAW § 2(13).

Laria, the District Superintendent, is thus

explicitly defined as a school officer by the above Education law
provision.

Moreover, the Court rejects Plaintiff’s argument that

Laria is exempt from the notice requirement because she retired
from her position as the District Superintendent--it is clear that
Plaintiff is suing Laria for acts undertaken in her role as the
District Superintendent. In addition, even if there is some debate
as to whether Zocchia, the District’s Assistant Superintendent of
Human Resources, falls into the definition of a school officer, he
must nevertheless be dismissed from this action because the SAC

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does not allege that he was personally involved in any of the
incidents at issue.

Therefore Laria, Zocchia, and McQuair are

DISMISSED as Defendants in this action.
V.

Leave to Amend
Under Federal Rule of Civil Procedure 15(a), “leave to

amend shall be freely granted when justice so requires.” “Although
the

decision

whether

to

grant

leave

to

amend

is

within

the

discretion of the district court, refusal to grant leave must be
based on a valid ground.’”

Oliver Sch., Inc. v. Foley, 930 F.2d

248, 253 (2d Cir. 1991) (quoting Ronzani v. Sanofi S.A., 899 F.2d
195, 198 (2d Cir. 1990).

Here, Plaintiff was already given leave

to amend the Complaint in the Court’s March 2015 Order and has
filed three separate iterations of her allegations.
leave to amend is DENIED.

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]

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Therefore,

CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss
(Docket

Entry

19)

is

GRANTED

IN

PART

and

DENIED

IN

PART.

Specifically, Plaintiff’s ADA claims and retaliation claims are
DISMISSED.

In addition, Plaintiff’s claims against Defendants

Laria, Zocchia, and McQuair are also DISMISSED and the Clerk of
the Court is directed to TERMINATE those parties as Defendants in
this action.

Defendants’ motion is otherwise DENIED.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March _8_ , 2016
Central Islip, New York

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