Carris v. First Student, Inc.
Filing
34
DECISION AND ORDER granting Deft's 31 Cross-Motion to Dismiss; denying Pltf's 25 Motion to Amend/Correct. Signed by Chief Judge Glenn T. Suddaby on 9/18/15. [Served by cert. mail.] (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________
MARGO CARRIS,
Plaintiff,
5:13-CV-0923
(GTS/ATB)
v.
FIRST STUDENT, INC.,
Defendant.
______________________________________
APPEARANCES:
OF COUNSEL:
MARGO CARRIS
Plaintiff, Pro Se
217 W. Lafayette Ave.
Syracuse, New York 13205
LITTLER MENDELSON, P.C.
Counsel for Defendant
One Newark Center
8th Floor
Newark, New Jersey 07102
IVAN R. NOVICH, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se employment discrimination action filed by
Margo Carris (“Plaintiff”) against First Student, Inc. (“Defendant”) are the following motions:
(1) Plaintiff’s motion for leave to file and serve an Amended Complaint pursuant to Fed. R. Civ.
P. 15(a)(2) (Dkt. No. 25); and (2) Defendant’s cross-motion to dismiss the action for lack of
subject matter-jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and for failure to state a claim
upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 31.) For the
reasons set forth below, Plaintiff’s motion is denied, and Defendant’s cross-motion is granted.
TABLE OF CONTENTS
I.
RELEVANT BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A.
Plaintiff’s Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B.
Plaintiff’s Proposed Amended Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
C.
Parties’ Briefing on Plaintiff’s Motion to Amend Her Complaint and
Defendant’s Cross-Motion to Dismiss Plaintiff’s Complaint. . . . . . . . . . . . . . . . . 5
1.
Plaintiff’s Motion to Amend Her Complaint. . . . . . . . . . . . . . . . . . . . . . . . 5
2.
Defendant’s Memorandum of Law in Opposition to Plaintiff’s Motion and
in Support of Its Own Cross-Motion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.
Plaintiff’s Opposition Memorandum of Law in Opposition to Defendant’s
Cross-Motion and in Reply Regarding Her Own Motion. . . . . . . . . . . . . . 9
II.
RELEVANT LEGAL STANDARDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A.
Legal Standard Governing Motions for Leave to Amend. . . . . . . . . . . . . . . . . . . 10
B.
Legal Standard Governing Dismissal for Failure to State Claim.. . . . . . . . . . . . . 12
C.
Legal Standard Governing Motions to Dismiss for Lack of Subject-Matter
Jurisdiction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
III.
ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
A.
Whether Plaintiff Has Alleged Facts Plausibly Suggesting Fraud.. . . . . . . . . . . . 18
B.
Whether Plaintiff’s Breach of Contract Claim Is Time-Barred by the
Applicable Statute of Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1.
Timeliness of Plaintiff’s Hybrid LMRA § 301 Claim. . . . . . . . . . . . . . . . 23
2.
Timeliness of Plaintiff’s Duty of Fair Representation Claim Under Title
VII Against Local 182. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.
Plaintiff’s Breach-of-Contract Claim Based Upon First Student’s National
Employee Handbook. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
C.
Whether Plaintiff Has Alleged Facts Plausibly Suggesting that Defendant
and/or Local 182 Are State Actors or Private Parties Acting Under
Color of State Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
D.
Whether Plaintiff Has Alleged Facts Plausibly Suggesting a Deprivation
of Her Civil Rights by SCSD and the Proposed Defendants Employed
by SCSD.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
1.
First Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.
Fifth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.
Ninth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.
Thirteenth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.
Fourteenth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.
Municipal Liability Under 42 U.S.C. § 1981.. . . . . . . . . . . . . . . . . . . . . . 40
7.
Individual Liability of the Proposed SCSD Defendants Under
42 U.S.C. § 1981. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.
42 U.S.C. §§ 1983, 1985(2)-(3), and 1986. . . . . . . . . . . . . . . . . . . . . . . . 47
-i-
E.
F.
G.
H.
I.
J.
IV.
Whether Plaintiff Has Alleged Facts Plausibly Suggesting that Defendant, Local
182, and the Remaining Proposed Defendants Not Acting Under Color of State
Law, Conspired to Violate Her Civil Rights Under § 1985(3). . . . . . . . . . . . . . . 48
Whether Plaintiff’s Proposed Claim Under § 1982 Is Futile. . . . . . . . . . . . . . . . . 49
Whether Plaintiff’s Proposed Claim Under § 1988 Is Futile. . . . . . . . . . . . . . . . . 50
Whether Plaintiff’s Discrimination Claim Under the New York State Human
Rights Law, as Alleged in the Original Complaint, Is Barred by the Election-ofRemedies Provision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Whether Plaintiff’s Cause of Action Under 42 U.S.C. § 1981 Against the
Individual Proposed Defendants, Except for SCSD, Is Futile. . . . . . . . . . . . . . . . 53
Whether Plaintiff Has Alleged Facts Plausibly Suggesting a Violation of Her
Rights Under Title VII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
1.
Individuals Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
2.
Requirements to State a Prima Facie Claim Under Title VII. . . . . . . . . . 56
3.
Proposed Title VII Claim Against the Proposed Defendants in Plaintiff’s
PAC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
4.
Title VII Claim Against First Student in Plaintiff’s Original
Complaint.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
-ii-
I.
RELEVANT BACKGROUND
A.
Plaintiff’s Complaint
Generally, liberally construed, Plaintiff’s Complaint alleges as follows. (Dkt. No. 1.) On
October 10, 2012, Plaintiff, an African-American, was employed by Defendant as a school bus
driver when she was transporting students from school to their homes located on the northeast
side of Syracuse, New York. (Id., ¶ 11.) During Plaintiff’s bus route, a male student on the bus
began “kicking, punching, slapping, and spitting” on younger students. (Id.) Plaintiff issued
several verbal warnings to the male student and stated that she would write a behavior referral, to
which the student responded that he “d[idn’t] care.” (Id.) When the bus reached its first stop, the
mother of a female student stepped onto the bus and “began to confront and threaten the male
student by name.” (Id.) Plaintiff instructed the parent that she could not be on the bus and
advised that she would write a referral regarding the student’s behavior and it would be taken
care of through First Student. (Id.) The parent informed Plaintiff that she had reported the male
student to the School District of Syracuse once before and no action had been taken to remedy
the situation. (Id.) Plaintiff continued her bus route until her last stop, when the male student
exited the bus. (Id.) As the male student exited, Plaintiff realized that he was a playmate of her
two grandsons. (Id.)
After finishing her routes, Plaintiff returned to the bus garage and requested a referral
form before leaving work. (Id., ¶ 12.) However, Plaintiff also decided to go the male student’s
house to discuss his behavior with his guardian(s). (Id.) Once there, Plaintiff spoke with a
young woman who answered the door. (Id.) Because the male student’s grandmother was not
home, Plaintiff explained what had occurred on the bus to the young woman and requested that
1
the young woman share the information with the student’s grandmother when she returned. (Id.)
The next day, Plaintiff was on a bus route when she was contacted by dispatch, which
informed her to discontinue her route and that she was being placed on administrative leave due
to the events that had transpired the previous day. (Id., ¶ 13.) Plaintiff was later informed by
Defendant’s assistant manager that the grandmother of the male student had contacted the
Syracuse City School District (“SCSD”) and complained that Plaintiff had come to her house
with another student’s parent and confronted her about her grandson’s behavior. (Id.) Plaintiff
alleges that, on October 15, 2012, she was terminated from her employment with First Student
for going to the male student’s house with another person and disclosing personal and/or
confidential information about the student. (Id.) Finally, Plaintiff describes three cases of
employee misconduct involving white bus drivers employed by First Student, which resulted in
employee discipline but not termination. (Id., ¶ 14-16.)
Based upon the foregoing, Plaintiff asserts two claims: (1) a claim that she was treated in
a disparate manner and subjected to racially based discriminatory employment practices by her
employers, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.;
and (2) a claim that she was treated in a disparate manner and subjected to racially based
discriminatory employment practices by her employers, in violation of N.Y. Executive Law §
296. (Id., ¶ 1.)
B.
Plaintiff’s Proposed Amended Complaint
With certain exceptions, the factual allegations contained in Plaintiff’s proposed
Amended Complaint (“PAC”) are substantially identical to those in her original Complaint.
Therefore, for purposes of brevity, the Court will not restate those allegations here. However,
2
Plaintiff seeks to add numerous parties to this action, including the following three employees of
SCSD: (1) Sharon Contreas, Superintendent; (2) Haine Alica, Chief Operating Officer; and (3)
Patricia Bailey, Director of Transportation. (Dkt. No. 26, at 3 [Pl.’s Am. Compl.].) In addition,
Plaintiff seeks to include the following seven employees of First Student: (1) “John/Jane Doe,”
C.E.O./President; (2) Frank Luciano, Regional Vice President; (3) Matt Conti, General Manager;
(4) Ty Worrell, Manager; (5) Lynea Lemke, Assistant Location Manager; (6) Jimmy James, Bus
Attendant Supervisor Monitor; and (7) “John/Jane Doe,” Investigator. (Id.) Finally, Plaintiff
seeks also to include James LaGrange, Vice President of Teamsters, Chauffeurs, Warehousemen
and Helpers, Local Union No. 182 (“Union” or “Local 182”), and Gary Kirck, Steward of Local
182, as defendants in this lawsuit. (Id.)
Plaintiff sets forth several new claims in her PAC, alleging that the current Defendant,
and the twelve proposed defendants, violated the following: (1) Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq.; (2) N.Y. Executive Law § 296; (3) 42 U.S.C. §§ 1981, 1982,
1983, 1985(2)(3), 1986, and 1988; (6) Title I of the Labor Management Reporting and Disclosure
Act (“LMRDA”); (7) 29 U.S.C. §§ 411-415; and (8) the First, Fifth, Ninth, Thirteenth, and
Fourteenth Amendments to the U.S. Constitution. (Dkt. No. 26, at 1, 4-14.) Plaintiff also sets
forth claims, under New York State law, for fraud and breach of contract in her PAC. (Id.)
Plaintiff’s claims under the Civil Rights Act, N.Y. Executive Law § 296, 42 U.S.C. §§
1981, 1982, 1983, and First, Fifth, Ninth, and Thirteenth Amendments of the U.S. Constitution
relate to the allegations of racial discrimination in employment practices and disparate treatment,
as discussed previously. (Id., ¶ 1, 42.) With respect to Plaintiff’s claims under 42 U.S.C. §§
1985 and 1986, she alleges that Defendant, and the proposed defendants, acted in concert and
3
conspired to terminate her employment by making material misrepresentations and depriving her
of evidence and information that she allegedly needed to adequately defend herself at two
grievance hearings. (Id., 8, 17, 19, 27.)
Regarding Plaintiff’s LMRDA, 29 U.S.C. §§ 411-415, and breach-of-contract claims, she
alleges that Defendant and the proposed defendants violated the Collective Bargaining
Agreement (“CBA”) between First Student and/or SCSD and her Union by failing to enforce its
non-discrimination provision and certain rights allegedly guaranteed to her in First Student’s
National Employee’s Handbook. (Id., ¶ 4, 6, 18.) Moreover, Plaintiff alleges that Local 182
and/or First Student violated her rights under the CBA, and their duty of fair representation, by
refusing to represent her at her grievance hearings. (Id., ¶ 12, 42.)
Finally, with respect to Plaintiff’s fraud claim, she alleges that the letters she received
from Jimmie James and SCSD, and the termination letter from First Student are “false,
fraudulent and highly misleading” because they mistakenly identify her as the person who
threatened the student’s grandmother. (Id., ¶¶ 21, 25, 27, 29, 39.) According to Plaintiff, the
proposed defendants knew that she was not the one who had threatened the student’s
grandmother; rather, it was the mother of another student that had visited the home on the same
day and made threatening statements. (Id., ¶¶ 25, 27-30, 35, 39.) Finally, Plaintiff alleges that
this misrepresentation was racially motivated and led to her termination. (Id., ¶¶ 31, 38-39.)
Familiarity with the factual allegations supporting these claims in Plaintiff’s PAC is
assumed in this Decision and Order, which is intended primarily for review by the parties.
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C.
Parties’ Briefing on Plaintiff’s Motion to Amend Her Complaint and
Defendant’s Cross-Motion to Dismiss Plaintiff’s Complaint
1.
Plaintiff’s Motion to Amend Her Complaint
On February 2, 2014, United States Magistrate Judge Andrew T. Baxter issued a Uniform
Pretrial Scheduling Order that, inter alia, stated that “[a]ny application to amend any pleading in
this action shall be made on or before March 14, 2014.” (Dkt. No. 21, at 1.) On March 14, 2014,
Magistrate Judge Baxter granted Plaintiff’s request for an extension of the deadline for her
motion to amend her Complaint, extending that deadline from March 14, 2014, to April 4, 2014.
(Text Order filed March 14, 2014.)
On March 9, 2014–five days after the motion-filing deadline–Plaintiff filed her motion.
(Dkt. No. 25.) However, rather than containing a memorandum of law explaining why the Court
should grant her leave to amend her Complaint pursuant to Fed. R. Civ. P. 15(a)(2), Plaintiff’s
motion contains an explanation of why the Court should excuse her five-day delay in filing her
motion. (Id.) In addition, Plaintiff filed her proposed Amended Complaint. (Dkt. No. 26.)
Clearly, Plaintiff has misunderstood the need to file a motion to amend, rather than
merely an amended complaint, under the circumstances. However, setting aside the fact that
Plaintiff received adequate notice of the need to file a motion (e.g., through the Uniform Pretrial
Scheduling Order she clearly received, and the courtesy copy of both the District’s Local Rules
of Practice and Pro Se Handbook she received on August 5, 2014), Plaintiff’s pro se status does
not relieve her of the obligation to comply with the Federal Rules of Civil Procedure.
5
2.
Defendant’s Memorandum of Law in Opposition to Plaintiff’s Motion
and in Support of Its Own Cross-Motion
Generally, in its memorandum of law, Defendant argues that Plaintiff has failed to state a
claim upon which relief can be granted regarding her claims in the original Complaint and that
Plaintiff’s request to amend her Complaint should be denied because her proposed amendments
are futile. (Dkt. No. 31, Attach. 1, at 4-14 [Def.’s Mem. of Law].) First, with respect to
Plaintiff’s original Complaint, Defendant argues that Plaintiff’s claim, brought under N.Y.
Executive Law § 296 and Article 15 of the N.Y. Human Rights Law (“HRL”), should be
dismissed due to a lack of subject-matter jurisdiction. (Id. at 12-13.) Specifically, Defendant
argues that the HRL contains an election-of-remedies provision that bars Plaintiff’s suit in federal
court where, as here, she previously filed a complaint with the N.Y. State Division of Human
Rights alleging the same discriminatory conduct by Defendant. (Id.) Defendant argues that,
because the Division issued a no-probable-cause determination, Plaintiff’s claim under the HRL
should be dismissed in its entirety. (Id.) Second, with respect to Plaintiff’s Title VII Claims,
Defendant argues that she cannot establish pretext because she admits in her Complaint that she
engaged in the conduct for which she was terminated, i.e., going to the home of a student on her
bus route while off-duty. (Id. at 13-14.)
Regarding Plaintiff’s PAC, Defendant argues that Plaintiff’s amendments are futile.
First, Defendant argues that Plaintiff cannot state a claim for fraud for the following reasons: (1)
the letter authored by Jimmie James states that “the mother of the child,” not Plaintiff, was the
one who visited the student’s home and made threatening statements; (2) the alleged fraudulent
statements do not set forth material misrepresentations because any inaccuracies contained in the
6
letter were stated by the grandmother and summarized by Mr. James; (3) Plaintiff does not allege
facts plausibly suggesting that fraudulent statements were made by First Student with knowledge
of their falsity or with intent to defraud; and (4) Plaintiff does not allege facts plausibly
suggesting reasonable reliance on her own part that resulted in damages to her. (Id. at 4-5.)
Second, Defendant argues that Plaintiff’s breach-of-contract claim is time-barred because
any breach of the CBA, as against First Student, is a hybrid Labor Management Relations Act,
Section 301/duty of fair representation claim, and is therefore governed by a six-month statute of
limitations period. (Id. at 5.) Defendant argues that, because the grievance filed by Plaintiff with
Local 182 was denied on October 24, 2012, Plaintiff knew, or should have known, of any alleged
violation of the CBA on that date and her breach of contract claim against First Student is now
time-barred. (Id. at 6.) Defendant also notes that any breach-of-contract claim based upon the
Employee Handbook also fails because the handbook does not contain a promise of employment
for any length of time and provides that First Student can skip steps in progressive discipline and
immediately terminate an employee. (Id. at 6, n.4.)
Third, Defendant argues that Plaintiff’s § 1983 and attendant constitutional claims fail for
the following reasons: (1) the First Student defendants are not state actors, nor were they acting
under color of state law when Plaintiff’s employment was terminated; (2) the Ninth Amendment
does not provide independent constitutional protection that can support a § 1983 claim; and (3)
the First, Fifth, and Fourteenth Amendments confer jurisdiction only when “state action” is
involved. (Id. at 6-8.)
Fourth, Defendant argues that Plaintiff’s §§ 1985 and 1986 claims fail for the following
reasons: (1) Plaintiff fails to allege facts plausibly suggesting an overt act by Defendant, or a
7
“meeting of the minds,” which is required to support the conspiracy element of a § 1985 claim;
(2) the fact that First Student, Local 182, and the SCSD were in contact regarding Plaintiff’s
employment status with First Student is insufficient to support a conspiracy claim under § 1985;
(3) Section 1986 is a derivative claim of § 1985 and, because Plaintiff has not set forth sufficient
allegations of a conspiracy against Defendant, she also fails to set forth a claim under § 1986; and
(4) Plaintiff fails to identify any individual with the power to intervene or stop the conspiratorial
conduct who is subject to liability under § 1986. (Id. at 8-10.)
Fifth, Defendant argues that Plaintiff’s Thirteenth Amendment claim fails to state a claim
for the following two reasons: (1) Plaintiff has not alleged facts plausibly suggesting that First
Student forced her into servitude through the use, or threatened use, of physical or legal coercion;
and (2) Plaintiff has not alleged facts plausibly suggesting that she was forced into compulsory
labor. (Id. at 10-11.)
Sixth, Defendant argues that Plaintiff’s § 1988 claim must fail because § 1982 prohibits
private racial discrimination in the sale or rental of real or personal property, and it is well
established that employment claims do not fall within this area because they do not implicate a
protected property interest within the meaning of the statute. (Id. at 11-12.) According to
Defendant, because Plaintiff has not alleged facts plausibly suggesting a protected property
interest, Plaintiff has not stated a claim under § 1982. (Id.)
Seventh, Defendant argues that Plaintiff’s § 1988 claim must fail for the following two
reasons: (1) § 1988 does not create an independent cause of action, nor does it create rights or
confer jurisdiction; and (2) Plaintiff has failed to show that available federal statutes are
inadequate to furnish suitable remedies, which would require the application of state law. (Id. at
12.)
8
Eighth, and finally, Defendant argues that a Title VII claim must fail as against proposed
defendants Frank Luciano, Matt Conti, Ty Worrell, and Lynea Lemke because Title VII does not
provide for individual liability. (Id.)
3.
Plaintiff’s Opposition Memorandum of Law in Opposition to
Defendant’s Cross-Motion and in Reply Regarding Her Own Motion
Generally, in opposition to Defendant’s cross-motion and in reply to Defendant’s
opposition to her own motion, Plaintiff makes the following arguments. First, Plaintiff argues
that the factual allegations contained in her original Complaint (and the exhibits attached thereto)
are sufficient to state a claim upon which relief can be granted under Fed. R. Civ. P. 9(b). (Dkt.
No. 33, at 4-6 [Pl.’s Opp’n Mem. of Law].) Second, Plaintiff argues that her original Complaint,
PAC, and exhibits attached thereto demonstrate that no genuine issue of material fact exists, and
that, because Defendant has failed to submit evidence in the form of an affidavit to refute her
allegations, she is entitled to judgment as a matter of law. (Id. at 6.) Moreover, Plaintiff argues
that, because the evidence submitted by Defendant is nothing more than “merely colorable” and
is not significantly probative, it is insufficient to raise a genuine issue of material fact. (Id. at 1011.)
Third, Plaintiff argues that she has not alleged class-based discrimination under the Equal
Protection Clause of the Fourteenth Amendment; rather, she alleges she has been singled out as a
“class-of-one” by Defendant and the proposed defendants. (Id.) Furthermore, Plaintiff argues
that she has demonstrated Defendant’s disparate treatment through the factual allegations
discussed previously and that such conduct cannot withstand a rational basis level of scrutiny
under the Equal Protection Clause. (Id. at 7.) In addition, Plaintiff argues that claims under 42
U.S.C. §§ 1981 and 1985 extend to private actors. (Id.)
9
Fourth, Plaintiff argues that her claims under 42 U.S.C. § 1983 are not futile for the
following reasons: (1) § 1983 extends to individuals who were personally involved in the alleged
deprivation of rights; (2) employers can be held vicariously liable for the tortuous conduct of
their employees; and (3) municipalities, including school districts, are considered “persons”
within the meaning of § 1983. (Id. at 8.) Plaintiff argues that she has sufficiently pled a claim
under § 1983 because she has alleged that Defendant and the proposed defendants unlawfully
terminated her based upon official policy. (Id.) Moreover, Plaintiff argues that she has
sufficiently alleged that SCSD is liable under a theory of negligent supervision and/or failure to
train (Id. at 8-9.)
Fifth, and finally, Plaintiff argues that her claims, based upon Defendant’s alleged
conspiratorial conduct, are not futile because she has sufficiently pled that Defendant’s
fraudulent conduct constitutes an overt-act, that a conspiracy existed, that the conspiracy was
motivated by racially based discrimination, and that she suffered unlawful harm as a result of that
conspiracy. (Id. at 9-10.) Similarly, Plaintiff argues that Defendant should be equitably estopped
from raising a statute-of-limitations defense because Defendant should not be allowed to take
advantage of its own wrongdoing and concealment. (Id. at 10.)
II.
RELEVANT LEGAL STANDARDS
A.
Legal Standard Governing Motions for Leave to Amend
A motion for leave to amend a complaint is governed by Fed. R. Civ. P. 15, which states
that leave to amend should be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2);
Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227 (1962); Manson v. Stacescu, 11 F.3d 1127,
1133 (2d Cir.1993). Pursuant to Fed. R. Civ. P. 15(a)(2), leave to amend a complaint should be
10
freely given in the absence of any apparent or declared reason to not grant leave to amend, such
as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, or futility of the amendment. See Foman, 371 U.S. at 182; S.S.
Silberblatt, Inc. v. E. Harlem Pilot Block–Bldg. 1 Hous., 608 F.2d 28, 42 (2d Cir.1979); Meyer v.
First Franklin Loan Servs, Inc., 08-CV-1332, 2010 WL 277090, at *1 (N.D.N.Y. Jan. 19, 2010);
Jones v. McMahon, 98-CV-0374, 2007 WL 2027910, at *10 (N.D.N.Y. July 11, 2007).
“An amendment to a pleading is futile if the proposed claim could not withstand a motion
to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).” Annunziato v. Collecto, Inc., 293 F.R.D. 329,
333 (E.D.N.Y. 2013) (citing Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 258 [2d
Cir.2002]). Therefore a proposed amendment is not futile if it states a claim upon which relief
can be granted. See Annunziato, 293 F.R.D. at 333 (citations omitted). As the Second Circuit
has explained, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it
is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir.1993) (citations omitted); accord, Brown v. Peters, 95-CV-1641, 1997 WL
599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) ("[T]he court need not grant leave to amend
where it appears that amendment would prove to be unproductive or futile.”) (citation omitted);
see also Foman v. Davis, 371 U.S. 178, 182 (1962) (denial not abuse of discretion where
amendment would be futile); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) ("The
problem with Cuoco’s causes of action is substantive; better pleading will not cure it.
Repleading would thus be futile. Such a futile request to replead should be denied.") (citation
omitted); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course,
11
where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be
dismissed with prejudice.”) (citation omitted); Health-Chem Corp. v. Baker, 915 F.2d 805, 810
(2d Cir.1990) (“[W]here . . . there is no merit in the proposed amendments, leave to amend
should be denied”).1
This rule applies even to pro se plaintiffs. See, e.g., Cuoco, 222 F.3d at 103; Brown,
1997 WL 599355 at *1. As explained below in Part II.B. of this Decision and Order, while the
special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules
governing the form of pleadings (as the Second Circuit has observed), it does not completely
relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8,
10 and 12; rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the
requirements set forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil
rights plaintiffs must follow.
B.
Legal Standard Governing Dismissal for Failure to State Claim
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a
1
The Court notes that two Second Circuit cases exist reciting the standard as being
that the Court should grant leave to amend "unless the court can rule out any possibility, however
unlikely it might be, that an amended complaint would succeed in stating a claim." Gomez v.
USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999); Abbas v. Dixon, 480 F.3d 636, 639 (2d
Cir. 2007). The problem with these cases is that their "rule out any possibility, however likely it
might be" standard is rooted in the "unless it appears beyond doubt" standard set forth in Conley
v. Gibson, 355 U.S. 41, 45-46 (1957), which was "retire[d]" by the Supreme Court in Bell Atl.
Corp. v. Twombly, 127 S. Ct. 1955 (2007). See Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,
796 (relying on Branum v. Clark, 927 F.2d 698, 705 [2d Cir. 1991], which relied on Conley v.
Gibson, 355 U.S. 41, 45-46 [1957]). Thus, this standard does not appear to be an accurate
recitation of the governing law.
12
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d
204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de
novo review).
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain "a short and plain statement of the claim showing that the pleader is entitled to
relief." Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain” pleading
standard under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F. Supp. 2d at
212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by
requiring the above-described “showing,” the pleading standard under Fed. R. Civ. P. 8(a)(2)
requires that the pleading contain a statement that "give[s] the defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it rests." Jackson, 549 F. Supp. 2d at 212, n.17
(citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
13
notice pleading standard "has its limits." 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atl. Corp. v. Twombly, the Supreme Court reversed an appellate
decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1.
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court "retire[d]" the
famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim,
the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id.
at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in
detail the facts upon which [the claim is based]," it does mean that the pleading must contain at
least "some factual allegation[s]." Id. at 1965. More specifically, the "[f]actual allegations must
be enough to raise a right to relief above the speculative level [to a plausible level]," assuming
(of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
14
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. Similarly,
a pleading that only “tenders naked assertions devoid of further factual enhancement” will not
suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8 “demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citations
omitted).
This pleading standard applies even to pro se litigants. While the special leniency
afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form
of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff
of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.2 Rather, as
both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set
2
See Vega v. Artus, 610 F. Supp. 2d 185, 196 & nn.8-9 (N.D.N.Y. 2009) (Suddaby,
J.) (citing Second Circuit cases); Rusyniak, 629 F. Supp. 2d at 214 & n.34 (citing Second Circuit
cases).
15
forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs
must follow.3 Stated more simply, when a plaintiff is proceeding pro se, "all normal rules of
pleading are not absolutely suspended." Jackson, 549 F. Supp. 2d at 214, n.28 [citations
omitted].4
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
3
See Rosendale v. Brusie, 374 F. App’x 195, 196 (2d Cir. 2010) (“[A]lthough the
courts remain obligated to construe a pro se complaint liberally, . . . the complaint must contain
sufficient factual allegations to meet the plausibility standard.”); Vega, 610 F. Supp. 2d at 196,
n.10 (citing Supreme Court and Second Circuit cases); Rusyniak, 629 F. Supp. 2d at 214 & n.34
(citing Second Circuit cases).
4
It should be emphasized that Fed. R. Civ. P. 8's plausibility standard, explained in
Twombly, was in no way retracted or diminished by the Supreme Court's decision (two weeks
later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated,
"Specific facts are not necessary" to successfully state a claim under Fed. R. Civ. P. 8(a)(2).
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) [emphasis added]. That statement was merely
an abbreviation of the often-repeated point of law–first offered in Conley and repeated in
Twombly–that a pleading need not "set out in detail the facts upon which [the claim is based]" in
order to successfully state a claim. Twombly, 127 S. Ct. 1965, n.3 (citing Conley, 355 U.S. at 47)
[emphasis added]. That statement did not mean that all pleadings may achieve the requirement
of "fair notice" without ever alleging any facts whatsoever. Clearly, there must still be enough
fact set out (however set out, whether in detail or in a generalized fashion) to raise a right to
relief above the speculative level to a plausible level. See Rusyniak, 629 F. Supp. 2d at 214 &
n.35 (explaining holding in Erickson).
16
any matter of which the court can take judicial notice for the factual background of the case.5
Moreover, in the Second Circuit, a pro se plaintiff’s papers in response to a defendant’s motion
to dismiss for failure to state a claim may be considered as effectively amending the allegations
of his complaint–to the extent those papers are consistent with the allegations in the complaint.6
5
See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion
to dismiss for failure to state a claim to a motion for summary judgment is not necessary under
Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached
to the complaint or answer, [2] documents incorporated by reference in the complaint (and
provided by the parties), [3] documents that, although not incorporated by reference, are
“integral” to the complaint, or [4] any matter of which the court can take judicial notice for the
factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6)
“may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint. . . . Where a document is
not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”) [internal
quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d
Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as an
exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant's motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
6
See Drake v. Delta Air Lines, Inc., 147 F.3d 169, 170 n.1 (2d Cir. 1998) (per
curiam) (“[W]e deem Drake's complaint to include the facts contained in his memorandum of
law filed in response to Delta's 1996 motion to dismiss.”); Gill v. Mooney, 824 F.2d 192, 195 (2d
Cir. 1987) (“In his affidavit submitted in opposition to defendants' motion to dismiss, Gill asserts
that Mooney's actions amounted to deliberate and willful indifference. Liberally construed under
pro se pleading standards, Gill's allegations against Mooney involve more than ordinary lack of
due care for the prisoner's interests or safety, . . . and therefore state a colorable claim under the
Eighth and Fourteenth Amendments.”) (internal quotation marks and citation omitted);
Donhauser v.Goord, 314 F. Supp. 2d 119, 212 (N.D.N.Y.) (Sharpe, M.J.) (“[I]n cases where a
17
C.
Legal Standard Governing Motions to Dismiss for Lack of Subject-Matter
Jurisdiction
“It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen
Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S. Cit. 2396 (1978). Generally, a
claim may be properly dismissed for lack of subject-matter jurisdiction where a district court
lacks constitutional or statutory power to adjudicate it. See Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000). A district court may look to evidence outside of the pleadings when
resolving whether to dismiss for lack of subject-matter jurisdiction. Makarova, 201 F.3d at 113.
The plaintiff bears the burden of proving subject-matter jurisdiction by a preponderance of the
evidence. Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.
1996)). When a court evaluates whether to dismiss for lack of subject-matter jurisdiction, all
ambiguities must be resolved and inferences drawn in favor of the plaintiff. Aurecchione v.
Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Makarova, 201 F.3d at
113).
III.
ANALYSIS
A.
Whether Plaintiff Has Alleged Facts Plausibly Suggesting Fraud
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated by Defendant in its memorandum of law. (Dkt. No. 31, Attach. 1, at 4-5
[Def.’s Mem. of Law].) To those reasons, the Court adds the following analysis.
pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider
materials outside of the complaint to the extent they “are consistent with the allegations in the
complaint.”) (collecting district court cases), vacated on other grounds, 317 F. Supp. 2d 160
(N.D.N.Y. 2004) (Hurd, J.).
18
“Under New York law, a plaintiff claiming fraud must show: ‘(1) a material
misrepresentation or omission of fact (2) made by defendant with knowledge of its falsity (3) and
intent to defraud; (4) reasonable reliance on the part of plaintiff; and (5) resulting damage to the
plaintiff.” Hills v. Praxair, Inc., 11-CV-0678, 2012 WL 1935207, at *20 (W.D.N.Y. May 29,
2012) (quoting Crigger v. Fahnestock & Co., 443 F.3d 230, 234 [2d Cir. 2006]). Further, to state
a claim sounding in fraud, Fed. R. Civ. P. 9(b) imposes a heightened pleading standard: “[A]
party must state with particularity the circumstances constituting fraud or mistake.” To plead a
fraud claim with the necessary particularity, the plaintiff must at a minimum: “(1) specify the
statements that . . . were fraudulent, (2) identify the speaker, (3) state where and when the
statements were made, and (4) explain why the statements were fraudulent.” Stevelman v. Alias
Research, Inc., 174 F.3d 79, 84 (2d Cir. 1999); accord, Lerner v. Fleet Bank, N.A., 459 F.3d 273,
290 (2d Cir. 2006); Naples v. Stefanelli, 972 F. Supp. 2d 373, 387 (E.D.N.Y. 2013).
“[C]onclusory allegations that defendant’s conduct was fraudulent or deceptive are not enough.”
Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 114 (2d Cir. 1982). However, “a plaintiff need
not plead dates, time and places with absolute precision, so long as the complaint gives fair and
reasonable notice to defendants of the claim and the grounds upon which it is based.” Int’l Motor
Sports Grp., Inc. v. Gordon, 98-CV-5611, 1999 WL 619633, at *3 (S.D.N.Y. Aug. 16, 1999).
In establishing scienter, a plaintiff must allege facts that give rise to a strong inference of
fraudulent intent, which can be accomplished in two ways: “either (a) by alleging facts to show
that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that
constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Shields v.
Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994); Rikhy v. AMC Computer Corp., 01CV-7007, 2002 WL 1424596, at *2 (S.D.N.Y. July 2, 2002).
19
As discussed in Part I.A. of this Decision and Order, the main thrust of Plaintiff’s fraud
claim is that the letters she received from Jimmie James and SCSD, and the termination letter
from First Student, are “false, fraudulent and highly misleading” because they mistakenly
identify her as the person who threatened the male student’s grandmother. (Dkt. No. 26, ¶¶ 21,
25, 27, 29-34, 37, 39 [Pl.’s Am. Compl.].) According to Plaintiff, Defendant, as well as the
proposed defendants, knew that she was not the one who had threatened the student’s
grandmother; rather, it was the mother of another student who had visited the home the same day
and made threatening statements. (Id., ¶¶ 25, 27-30, 35, 39.)
First, Plaintiff has attached all three of the subject letters to her PAC, which the Court
will consider for purposes of this motion as both integral to the Complaint and incorporated by
reference. (Id. at P/D-7 through P/D-9.) The letter authored by Mr. James states that he spoke
with the student’s grandmother regarding two adults that allegedly came to the grandmother’s
home to complain about her grandson’s behavior. (Id. at P/D-7.) According to Mr. James’ letter,
the adults included Plaintiff and one other person. (Id.) The letter further states that
the other adult threatened her grandson and said, “if you touch my
daughter again, I will break your neck.” Grandma stated that she
didn’t want a confrontation with the adults at her home and
admitted that her grandson can be difficult. However, she felt that
the driver had no right to bring another parent to her home and
threaten her grandson.
(Id.) Mr. James concludes the letter by stating that “I spoke with Lynea Lemke, Assistant
Manager, requesting that First Student West check to see if the allegation that the driver did
return to the grandmother’s home with another adult was true. It was found to be true, and the
matter was turned over to my Director on Oct. 14th.” (Id.)
20
Significantly, Plaintiff admits, in both her Complaint and PAC, that she returned to the
student’s home while off-duty. (Dkt. No. 1, ¶ 12; Dkt. No. 26, at 2.) Plaintiff has also attached
an affidavit to her PAC from her daughter, which states that the daughter accompanied Plaintiff
to the student’s home. (Dkt. No. 26, at Ex. P-6.) Thus, Plaintiff admits that she went to the
student’s home, off-duty, accompanied by another adult.7 Moreover, the letter specifically states
that, according to the grandmother, it was “the other adult,”8 not Plaintiff, who made threatening
statements while at the student’s home.
Second, although Plaintiff appears to allege that this mistake in identity was the basis for
her unlawful termination, her pleadings suggest otherwise. Specifically, in the Complaint,
Plaintiff alleges that, on “October 15th 2012, I was terminated for going to the males [sic]
students [sic] home with another person and disclosing personal and or confidential information
about that student.” (Dkt. No. 1, ¶ 13.) Based upon the pleadings, Plaintiff admits that she did in
fact go to the student’s home (the grandmother’s home) with another person (her daughter) and
disclosed personal and/or confidential information about the student (the student’s behavior on
the bus). Therefore, the Court cannot find a basis to sustain a fraud claim because Plaintiff has
failed to allege facts plausibly suggesting that Mr. James made material misrepresentations about
Plaintiff, with knowledge of their falsity, and with intent to defraud.
7
Although the exact age of Plaintiff’s daughter is unknown, the affidavit mentions
that the daughter can drive and is a mother herself. Therefore, it is plausible that Plaintiff’s
daughter is not a minor.
8
Plaintiff has attached a second affidavit to her PAC from a parent, Quintina
Wilson, who states that she went to the grandmother’s home, without Plaintiff, to complain about
the male student’s abusive behavior towards her daughter while on the bus. (Dkt. No. 26, at Ex.
P-5.) The affidavit explains that Ms. Wilson was the one who made threatening statements while
at the student’s home because she was upset about the way her daughter was treated.
21
Similarly, the remaining two letters do not support Plaintiff’s claim. The letter from
Lynea Lemke, Assistant Location Manager at First Student, states that
[o]n 10-11-2012 you were placed on administrative leave pending
investigation of an incident that involved you going to the home of
a student on the route you were covering after hours. The
investigation has now been completed. Due to the findings of the
investigation, your employment with First Student is terminated,
effective immediately.
(Dkt. No. 26, at Ex. P/D-8.) With respect to Ms. Lemke’s letter, Plaintiff has failed to meet the
heightened pleading requirements of Fed. R. Civ. P. 9(b). Specifically, Plaintiff alleges in her
PAC that Ms. Lemke
placed Plaintiff in a false light when she then, unlawfully, filed a
blatantly false, fraudulent, malicious, and highly misleading letter
terminating Plaintiff solely based on the false complaint and
mistaken identification, by a white person, whereby said “white”
person arbitrarily mistook the Plaintiff for looking like (i.e.,
similar) to another African American (i.e., the black) woman that
actually harassed the “white” female witness in these matters.
(Dkt. No. 26, ¶ 25.)
First, Plaintiff has failed to allege what statements contained in Ms. Lemke’s letter are
fraudulent and why they are fraudulent. See Stevelman, 174 F.3d at 84. Notwithstanding this
failure, Plaintiff, as discussed above, admits she went to the home of a student on her bus route
while off-duty, which, as explained in Ms. Lemke’s letter, was the basis for Plaintiff’s
termination. Second, Plaintiff’s allegation that Ms. Lemke terminated her employment, based
solely on the allegation that she was the one who made threatening statements, is at odds with
other allegations in Plaintiff’s Complaint. Specifically, Plaintiff alleges that “I was informed by
the assistant manager of First Student that the reasoning behind this decision was because the
22
Grandmother of the male student placed a phone call to the [SCSD] stating that I came to her
home with another parent that her grandson had a [sic] altercation with earlier on the bus and that
the parent proceeded to threatened [sic] her and her grandson.” (Dkt. No. 1, ¶ 13) (emphasis
added). According to this factual allegation, Plaintiff acknowledges that Ms. Lemke knew
Plaintiff was not the one who made threatening statements, and that the reasoning for her
termination was that Plaintiff went to the student’s home with another person.
Finally, the contents of the third letter, authored by Patricia Bailey of SCSD, simply state
that, “[d]ue to an incident on October 10, 2012, the above-named bus driver is removed from all
SCSD bus routes effective immediately.” (Dkt. No. 26, at Ex. P/D-9.) For the reasons discussed
above with regard to the other letters, Plaintiff has failed to allege facts plausibly suggesting a
fraud claim based upon Ms. Bailey’s letter. (Dkt. No. 26, ¶¶ 27, 29, 30-33.)
B.
Whether Plaintiff’s Breach of Contract Claim Is Time-Barred by the
Applicable Statute of Limitations
After carefully considering the matter, the Court answers this question in the affirmative
to the extent that Plaintiff alleges a breach of contract based upon a Labor Management Relations
Act § 301/duty of fair representation claim (i.e., a hybrid LMRA § 301 claim) and a breach of the
policies contained in First Student’s National Employee Handbook, for the reasons discussed
below. However, the Court answers this question in the negative to the extent that Plaintiff
alleges Local 182 breached its duty of fair representation under a Title VII theory of liability.
1.
Timeliness of Plaintiff’s Hybrid LMRA § 301 Claim
“[T]he appropriate statute of limitations for ‘hybrid’ actions, i.e., cases involving both
claims against the employer under Section 301 and claims against the union for breach of the
duty of fair representation, is six months.” McLeod v. Verizon N.Y., Inc., 995 F. Supp. 2d 134,
23
142 (E.D.N.Y. 2014) (quoting Civardi v. Gen. Dynamics Corp., 603 F. Supp. 2d 393, 397 [D.
Conn. 2009]); Korthas v. Ne. Foods, Inc., 03-CV-0552, 2006 WL 519401, at *11 (N.D.N.Y. Feb.
27, 2006) (Munson, J.). “The six-month clock begins to run from ‘the time when the union
member knew or reasonably should have known that a breach of the duty of fair representation
has occurred.” McLeod 995 F. Supp. 2d at 142 (quoting Rosario v. Local 1106 Transp. Works of
Am., 29 F. Supp. 3d 153, 159 [E.D.N.Y. 2014]).
Plaintiff argues that Defendant should be equitably estopped from asserting a statute-oflimitations defense. “‘Unlike equitable tolling, which is invoked in cases where the plaintiff is
ignorant of his cause of action because of the defendant’s fraudulent concealment, equitable
estoppel is invoked in cases where the plaintiff knew of the existence of his cause of action but
the defendant’s conduct caused him to delay bringing his lawsuit.’” Ellul v. Congregation of
Christian Bros., 774 F.3d 791, 802 (2d Cir. 2014) (quoting Cerbone v. Int’l Ladies’ Garment
Workers’ Union, 768 F.2d 45, 49-50 [2d Cir 1985]). “Equitable estoppel applies in cases where,
for example, the defendant lulls the plaintiff into not filing suit with assurances that she will
settle the case.” Ellul, 774 F.3d at 802. “To trigger the doctrine of equitable estoppel, a plaintiff
must show that: (1) the defendant made a definite misrepresentation of fact, and had reason to
believe that the plaintiff would rely on it; and (2) the plaintiff reasonably relied on that
misrepresentation to his detriment.” Id.
In Ellul, plaintiffs argued that defendants should be equitably estopped from asserting a
statute-of-limitations defense because defendants deceived them and then fraudulently concealed
information by withholding and/or destroying documents related to their claims. Id. at 801-02.
The Second Circuit, however, focused on whether the defendants “made any misrepresentations
24
that caused [plaintiffs] to delay bringing this lawsuit once the facts became or should have
become known to them.” Id. at 802. The court determined that plaintiffs had the necessary
information to commence a lawsuit during the statutory period. Id. 801-02. As a result, the court
“perceive[d] no basis in the record for applying equitable estoppel.” Id. at 802.
In the present case, Plaintiff sets forth a similar argument, arguing that Defendant and/or
the proposed defendants should not be allowed to benefit from their own wrongdoing and
fraudulent concealment. (Dkt. No. 33, at 10 [Pl.’s Opp’n Mem. of Law].) However, Plaintiff has
failed to allege facts plausibly suggesting any misrepresentations that caused her to delay
bringing this claim. To the contrary, Plaintiff’s grievance was denied on October 24, 2012,9 after
two formal hearings were held. (Dkt. No. 26, ¶ 22 [Pl.’s Am. Compl.]; Dkt. No. 31, Attach. 2, at
Ex. A [Novich Decl.].) Furthermore, Plaintiff objected to the hearings being held because she
had requested representation from Local 182, which Mr. LaGrange allegedly refused to provide.
(Dkt. No. 26, ¶ 22.) Therefore, Plaintiff knew, or should have known, of any alleged violation of
the CBA as of October 24, 2012, when her grievance was denied. See Ghartey v. St. John’s
Queens Hosp., 869 F.2d 160, 165 (2d Cir. 1989) (“[A] breach of duty by the union is apparent to
the member at the time she learns of the union action or inaction about which she complains.”).
Plaintiff did not file her Complaint until August 5, 2013, and her PAC was filed on April 9,
2014. Accordingly, Plaintiff’s hybrid LMRA § 301 claim is futile because it is barred by the
applicable statute of limitations. See McLeod 995 F. Supp. 2d at 143 (“Where . . . a plaintiff
9
Defendant has attached a signed document from Plaintiff’s Union, dated October
24, 2012, notifying Plaintiff that her grievance was denied. The Court will consider this
document as it is integral to Plaintiff’s PAC and is incorporated by Plaintiff’s reference to the
grievance proceeding. See Hemans v. Long Island Jewish Med. Ctr., 2010 WL 4386692, at *4
(E.D.N.Y. Oct. 28, 2010); Rosario, 29 F. Supp. 3d at 158.
25
alleging a hybrid LMRA § 301 claim has not set forth any viable equitable reason for tolling a
statute of limitations, courts in this circuit have dismissed such claims for untimeliness.”).
2.
Timeliness of Plaintiff’s Duty of Fair Representation Claim Under
Title VII Against Local 182
To the extent Plaintiff alleges that Local 182 breached its duty of fair representation under
a Title VII theory of liability (Dkt. No. 26, ¶¶ 13, 26), that claim is not time-barred at this time.
“It is well established that a duty of fair representation claim can fall within Title VII if a union
allowed the breach to go unrepaired and Plaintiff can show that the Union’s actions were
motivated by discriminatory animus.” Blaizin v. Caldor Store #38, 97-CV-1604, 1998 WL
420775, at *2 (S.D.N.Y. July 27, 1998). With respect to such claims, “the statute of limitations
under Title VII–not the six-month statute of limitations for breach of duty of fair
representation–controls.” Nweke v. Prudential Ins. Co. of Am., 25 F. Supp. 2d 203, 219
(S.D.N.Y. 1998). A complaint alleging discrimination under Title VII must be filed with the
EEOC “within 180 days of the alleged unlawful employment action or, if the claimant has
already filed the charge with a state or local equal employment agency, within 300 days of the
alleged discriminatory action.” Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir.
1996); see also Cooper v. Wyeth Ayerst Lederie, 106 F. Supp. 2d 479, 500 (S.D.N.Y. 2000)
(“The appropriate statute of limitations for a fair representation claim under Title VII is 300
days.”).
As discussed above, Plaintiff was denied representation from Local 182 on or about
October 11, 2012 (Dkt. No. 26, ¶¶ 22-23), and Plaintiff’s PAC was filed on April 9, 2014.
Plaintiff has alleged only that she filed a complaint with the New York State Division of Human
26
Rights and that, on May 11, 2013, she received a “Right to Sue” letter. (Dkt. No. 26, at 3.)
Therefore, Plaintiff’s claim is timely, assuming she filed a complaint with the EEOC during the
requisite time period. Unfortunately, Plaintiff has not alleged whether this occurred or not.
However, because it is plausible that she did file a complaint with the EEOC within the
applicable time period, the Court is unable to find, at this time, that Plaintiff’s claim is futile on
the basis that it is time-barred.
3.
Plaintiff’s Breach-of-Contract Claim Based Upon First Student’s
National Employee Handbook
Finally, the Court finds that a breach-of-contract claim premised on a violation of
Defendant’s employee handbook is futile. Plaintiff has attached selected pages of the employee
handbook to her PAC. (See Dkt. No. 26, Ex. P-1 through P-4.) She alleges in her PAC that
similarly situated white employees were treated differently by Defendant when they were
afforded progressive disciplinary procedures after being accused of misconduct and allowed to
remain employed. (Id., ¶ 34.) However, one of the pages of the employee handbook states that
First Student reserves the right to bypass progressive steps of discipline. Specifically, the
handbook states, in relevant part, that “Depending on the severity of the rule infraction . . .
disciplinary action could bypass the progressive steps and result in suspension or termination.”
(Id. at P-2) (emphasis added). Moreover, the pages from the handbook do not contain any
promises of employment for any duration, nor does Plaintiff allege that she was anything more
than an at-will employee. Accordingly, there is no merit to Plaintiff’s argument that Defendant
violated the provisions of its handbook when it terminated her employment.
27
Next, Plaintiff alleges that Defendant’s use of authority deprived her of her rights not to
be discriminated and/or retaliated against in violation of the rights guaranteed to her by the
handbook. (Id., ¶¶ 18, 6.) First, the handbook pages provided by Plaintiff do not contain antidiscrimination or retaliation clauses. Nonetheless, it is “well-established that an employer’s antidiscrimination policies and manuals cannot serve as the basis for a breach of contract claim.”
Davis v. Oyster Bay-E., 03-CV-1372, 2006 WL 657038, at *15 (E.D.N.Y. Mar. 9, 2006); see
also Abdi v. Brookhaven Sci. Assocs., LLC, 447 F. Supp. 2d 221, 229 (E.D.N.Y. 2006).
Therefore, Plaintiff’s breach-of-contract claim premised on a violation of Defendant’s employee
handbook is futile.
C.
Whether Plaintiff Has Alleged Facts Plausibly Suggesting that Defendant
and/or Local 182 Are State Actors or Private Parties Acting Under Color of
State Law
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated by Defendant in its memorandum of law. (Dkt. No. 31, Attach. 1, at 6-8
[Def.’s Mem. of Law].) To those reasons the Court adds the following analysis.
“In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege that he was
injured by either a state actor or a private party acting under color of state law.” Ciambriello v.
Cty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). “‘Because the United States Constitution
regulates only the Government, not private parties, a litigant claiming that his constitutional
rights have been violated must first establish that the challenged conduct constitutes state
action.’” Ciambriello, 292 F.3d at 323 (quoting United States v. Int’l Bd. of Teamsters,
Chauffeurs, Warehousemen & Helpers of Am., 941 F.2d 1292, 1295-96 [2d Cir. 1991]).
28
Defendant argues that First Student is a private entity that was not acting under color of
state law when it terminated Plaintiff’s employment. (Dkt. No. 31, Attach. 1, at 7 [Def.’s Mem.
of Law]). Plaintiff alleges in conclusory fashion that Defendant, and the proposed defendants,
are state employees. (Dkt. No. 26, ¶ 3 [Pl.’s Am. Compl.].) Plaintiff also alleges, upon
information and belief, that “First Student is a corporation or similar business entity organized
and existing under the laws of the State of Ohio.” (Dkt. No. 1, ¶ 3 [Pl.’s Compl.].) Plaintiff does
not, however, allege any facts plausibly suggesting that First Student is indeed a state actor or
otherwise respond to Defendant’s argument on this issue. With respect to Local 182, it has been
held that labor unions generally are not state actors. See Ciambriello, 292 F.3d at 323 (“Labor
unions such as CSEA generally are not state actors”); Dorcely v. Wyandanch Union Free Sch.
Dist., 06-CV-1265, 2007 WL 2815809, at *4 (E.D.N.Y. Sept. 25, 2007) (“[L]abor unions
generally are not state actors . . . the fact that the Union represents public employees does not
make it a state actor.”); Marrero v. City of N.Y., 02-CV-6634, 2003 WL 1621921, at *4
(S.D.N.Y. Mar. 28, 2003). Therefore, Plaintiff must allege facts plausibly suggesting that First
Student and Local 182 were acting under color of state when she allegedly suffered a deprivation
of her constitutional rights.
“A private actor may be considered to be acting under the color of state law for purposes
of Section 1983 if the private actor was ‘a willful participant in joint activity with the State or its
agents.’” Young v. Suffolk Cty., 922 F. Supp. 2d 368, 385 (E.D.N.Y. 2013) (quoting Ciambriello,
292 F.3d at 324). “This potential liability under Section 1983 also applies to a private party who
‘conspires with a state official to violate the plaintiff’s constitutional rights . . . .’” Young, 922 F.
Supp. 2d at 385 (quoting Fisk v. Letterman, 401 F. Supp. 2d 362, 378 [S.D.N.Y. 2005]). “Thus,
29
in order to prove that a private actor was acting under the color of state law when he engaged in
allegedly unconstitutional conduct, a plaintiff must point to evidence tending to show either (1)
the existence of joint activity between the private actor and the state or its agents, or (2) a
conspiracy between the state or its agents and the private actor.” Id.
“The concepts of acting ‘jointly’ or in ‘conspiracy with’ state actors are intertwined . . . .
Even if considered as conceptually separate theories, both require the pleading of facts sufficient
to show something more than conclusory allegations.” Stewart v. Victoria’s Secret Stores, LLC,
851 F. Supp. 2d 442, 445 (E.D.N.Y. 2012). “Joint action with a state official can be found only
if it is shown that the private individual acted in ‘willful collaboration’ with a state actor to
deprive the plaintiff of a federal right.” Stewart, 851 F. Supp. 2d at 445 (citing Bacquie v. City of
New York, 99-CV-10951, 2000 WL 1051904, at *1 [S.D.N.Y. July 1, 2000]). “Such
collaboration is stated only if a plaintiff can plead more than ‘conclusory allegations’ or ‘naked
assertions.’” Id. “Thus, pleadings asserting joint activity must allege ‘specific facts tending to
show agreement and concerted action.’” Id. (quoting Bacquie, 2000 WL 1051904, at *1).
“Similarly, stating a Section 1983 conspiracy claim against a private individual requires
more than pleading simply, and in conclusory fashion that the defendant ‘conspired’ with state
actors.” Id. (citing Ciambriello, 292 F.3d at 323). “Instead, the plaintiff must allege: ‘(1) the
agreement between a state actor and a private party; (2) to act in concert to inflict an
unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.’”
Id. (quoting Pacicca v. Stead, 456 F. App’x 9, 12 [2d Cir. 2011]). “Complaints alleging nothing
more than vague and general allegations of conspiracy are properly dismissed . . . . While places
and dates of meetings need not be pled with particularity, pleadings must set forth a plausible
30
theory of agreement and concerted action.” Id. (citing McIntyre v. Longwood Cent. Sch. Dist.,
07-CV-1337, 2008 WL 850263, at *11 [E.D.N.Y. Mar. 27, 2008]). “[I]f this court were to allow
a plaintiff to go beyond the pleading stage of litigation upon setting forth nothing more than
conclusory allegations of conspiracy with state actors, ‘private actors–including lawyers and
witnesses–would be subjected to the substantial cost and disruption incurred by litigants in the
discovery phase of these lawsuits, without any indication whatsoever that the plaintiff has a
‘plausible’ conspiracy claim.’” Id. (quoting Flores v. Levy, 07-CV-3753, 2008 WL 4394681, at
*8 [E.D.N.Y. Sept. 23, 2008]).
Here, Plaintiff alleges that from October 4, 2012,10 through October 15, 2012, Defendant,
as well as the proposed defendants, “agreed with each other and with others to engage in and
cause Plaintiff to be denied her rights, privileges, and/or immunities as mandated in Defendants
[sic] First Student[’]s National Employee Handbook.” (Dkt. No. 26, ¶ 6.) Plaintiff further alleges
that Ms. Lemke and Mr. LaGrange “agreed to deny and/or stultify . . . Plaintiff’s CBA rights on
the above dates.” (Id., ¶ 7.) Plaintiff then alleges that the proposed defendants acted together in
suppressing and/or depriving Plaintiff of evidence and information that she allegedly needed to
effectively defend herself at her two grievance hearings. (Id., ¶ 14.) Similarly vague allegations
are made throughout her PAC. (See, e.g., id., ¶¶ 8, 12-13, 16, 19.) Finally, Plaintiff also alleges
10
There appears to be some confusion surrounding the date of the incident. Mr.
James’ letter states that Plaintiff allegedly went to the student’s home on October 4, 2012, and he
received the complaint from the student’s grandmother the same day. (Dkt. No. 26, at Ex. P/D7.) However, Plaintiff alleges in both her Complaint and PAC that the subject incident occurred
on October 10, 2012. (Dkt. No. 1, ¶ 11; Dkt. No. 26, at 2.) Furthermore, the letter from Patricia
Bailey, Director at SCSD, stated that Plaintiff was being removed from all SCSD bus routes due
to an incident that occurred on October 10, 2012. (Dkt. No. 26, at Ex. P/D-9.) Accepting
Plaintiff’s allegations as true, the Court will use October 10th as the date of the incident.
31
that Defendant and the proposed defendants conspired with each other when they made “material
misrepresentations” against Plaintiff, “via three separate fraudulent letters,” which were
described previously in Part III.A. of this Decision and Order. (Id., ¶ 27.)
Having carefully read and liberally construed these allegations, the Court finds that
Plaintiff has failed to allege facts plausibly suggesting that Defendant and Local 182 willfully
collaborated with a state actor to deprive Plaintiff of a civil right. Nor has Plaintiff alleged facts,
beyond “conclusory allegations” and “naked assertions,” tending to show agreement and
concerted action to suggest joint collaboration between the parties and a state actor. Similarly,
Plaintiff’s Complaint and PAC are devoid of any allegations of instances of conduct plausibly
suggesting a conspiracy or any “meeting of the minds.” See Gyadu v. Hartford Ins. Co., 197
F.3d 590, 591 (2d Cir. 1999) (holding that vague references to some conspiracy and hints at some
tenuous link between a conspiracy and the fact that plaintiff was of a certain race are insufficient
to state a claim for conspiracy to deprive plaintiff of his civil rights). As discussed above, such
facts must be alleged in the Complaint in order to survive a motion to dismiss.
Although Plaintiff alleges, in general terms, that Defendant and the proposed defendants
were in communication with each other with respect to Plaintiff’s case, it is well established that,
“[c]ommunications between a private and a state actor, without facts supporting a concerted
effort or plan between the parties, are insufficient to make the private party a state actor.” Fisk v.
Letterman, 401 F. Supp. 2d 362, 377 (S.D.N.Y. 2005); see also Hills v. Praxair, Inc., 2012 WL
1935207, at *8 (“[M]ere fact that defendants were in contact with each other concerning
Plaintiff’s case . . . cannot support a claim of conspiracy.”); Cox v. Onondaga Cty. Sheriff’s
Dep’t, 08-CV-0387, 2012 WL 1069053, at *10 (N.D.N.Y. Mar. 29, 2012) (holding statement by
32
one defendant to another that he should “squash” plaintiff’s complaint insufficient to establish
meeting of the minds).
Therefore, because Plaintiff has failed to allege facts plausibly suggesting that Defendant
and Local 182 are state actors, or were acting under color of state law when her employment was
terminated, Plaintiff has not stated a claim against these parties under § 1983. Similarly,
Plaintiff’s proposed claims against these parties, which allege a deprivation of rights under the
First, Fifth, Ninth, and Fourteenth Amendments, also fail to state a claim due to her failure to
sufficiently allege state action. See McPartland v. Am. Broad. Companies, Inc., 623 F. Supp.
1334, 1341 (S.D.N.Y. 1985) (“The First, Fifth and Fourteenth Amendments to the United States
Constitution confer jurisdiction only when ‘state action’ is involved.”); Cooper v. U.S. Postal
Serv., 577 F.3d 479, 491 (2d Cir. 2009) (“The Fourteenth Amendment . . . incorporates the First
Amendment, so ‘[t]he Fourteenth Amendment, and, through it, the First . . . Amendment[ ], do
not apply to private parties unless those parties are engaged in activity deemed to be ‘state
action.’”) (citations omitted); Rini v. Zwirn, 886 F. Supp. 270, 289 (E.D.N.Y. 1995) (“The Ninth
Amendment is recognized as a rule of construction, not one that protects any specific right . . . .
No independent constitutional protection is recognized which derives from the Ninth
Amendment and which may support a § 1983 cause of action.”).11
11
Plaintiff’s PAC references violations of Article, 1 §§ 6, 11, 17 of the New York
State Constitution. (Dkt. No. 26, at 14 n.1.) However, these alleged violations also require state
action in order to be cognizable. See DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 350
(S.D.N.Y. 2009) (“Regarding the article 1, section 11 equal protection claim, plaintiff has not
alleged or supplied any facts indicating that defendants . . . are state actors. Thus, plaintiff has
failed to meet the ‘state action’ requirement of her claim.”); Rohan v. Am. Bar Ass’n, 93-CV1338, 1995 WL 347035, at *9 (E.D.N.Y. May 31, 1995) (dismissing plaintiff’s due process claim
under N.Y. Const., art. 1, § 6, because it does not apply to private conduct); McGovern v. Local
456, Int’l Bhd. of Teamsters, Chauffeurs & Warehousemen & Helpers of Am., AFL-CIO, 107 F.
Supp. 2d 311, 318 (S.D.N.Y. 2000) (“On its face, section 17 does not create a cause of action for
damages.”).
33
D.
Whether Plaintiff Has Alleged Facts Plausibly Suggesting a Deprivation of
Her Civil Rights by SCSD and the Proposed Defendants Employed by SCSD
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated below.
1.
First Amendment
In order to state a First Amendment retaliation claim, plaintiff must allege the following:
(1) she engaged in speech that was constitutionally protected; (2) she suffered an adverse
employment action; and (3) there existed a causal connection between the protected speech and
the adverse employment action, such that it could be inferred that the speech was a “motivating
factor” in the employment action. Spencer v. Holley Cent. Sch. Dist., 734 F. Supp. 2d 316, 319
(W.D.N.Y. 2010) (citing Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d 147, 152 [2d Cir.
2006]). “Speech that is ‘constitutionally protected’ is that which takes place when one speaks, in
the capacity of a citizen, about a matter of public concern–that is, a matter of political, social or
other concern to the community at large, as opposed to a personal matter.” Spencer, 734 F. Supp.
2d at 319. “In making its determination, the court should focus on the motive of the speaker, and
attempt to discern whether the speech was calculated to redress personal grievances or whether it
had a broader public purpose.” Hanig v. Yorktown Cent. Sch. Dist., 384 F. Supp. 2d 710, 722
(S.D.N.Y. 2005) (citing Lewis v. Cowen, 165 F.3d 154, 163-64 [2d Cir. 1999]). “The key inquiry
is whether the statements were made by plaintiff in her role as a disgruntled employee or her role
as a concerned citizen.” Hanig, 384 F. Supp. 2d at 722. If it is determined that Plaintiff did not
engage in constitutionally protected speech, “the employee has no First Amendment cause of
action based on his or her employer’s reaction to the speech.” Garcetti v. Ceballos, 547 U.S. 410,
418 (2006).
34
Here, Plaintiff alleges her rights under the First Amendment were violated in the
following ways:
Each and every Defendants[’] conduct herein, all, was predicated
on an invidious discriminatory animus, class based, against
Plaintiff because of her ability, courage, and/or willingness to
exercise her first amendment constitutional rights to speak “Truth
to power” when she chose (rightly or wrongly) and fortunately for
her, to ignore Defendants[’] requests that she NOT get any
affidavits from potential witnesses.
(Dkt. No. 26, ¶ 8.) In addition, Plaintiff alleges her rights were violated
due to Plaintiff’s then[–]willingness to speak “Truth to Power”
when she informed Defendant Lynea Lemke, on October 15, 2012,
that her Defendants First Students and the Union’s racially
motivated decision . . . to unlawfully terminate her, all, was based
on a mistaken identification [of] her (i.e., based on historical
stereotypes that “all blacks look alike”) and or based entirely on the
false, fraudulent, highly misleading, and uncorroborated allegations
of a “white” woman.
(Id., ¶ 19.)
Having carefully reviewed and liberally construed these allegations, the Court finds that
Plaintiff has failed to allege facts plausibly suggesting that SCSD infringed upon constitutionally
protected speech. Specifically, Plaintiff’s allegations relate to her disciplinary proceedings,
which are matters of personal interest and not ones of public concern. See Wetzel v. Town of
Orangetown, 308 F. App’x 474, 477 (2d Cir. 2009) (affirming dismissal of police officer’s First
Amendment claim alleging she was prohibited from speaking with Town officials about
disciplinary proceedings against her because “those proceedings are a matter of personal interest,
not a matter of public concern”). In other words, “it is clear that plaintiff’s speech related
primarily if not exclusively to her desire to protect her job and/or her reputation as a [bus driver].
35
Any motivation to advance a public interest was tenuous and incidental. Hanig, 384 F. Supp. 2d
at 722 (citing Ezekwo v. N.Y. City Health & Hosps. Corp., 940 F.2d 775, 781 [2d Cir. 1991]
[noting that the fact that plaintiff’s speech could be broadly construed to implicate matters of
potential public concern did not alter the general nature of her statements which were personally
motivated]).
Accordingly, Plaintiff has failed to allege facts plausibly suggesting a violation of her
First Amendment rights, and her proposed claim is therefore futile.
2.
Fifth Amendment
As an initial matter, Plaintiff does not assert allegations in the body of her Complaints
specifically referencing violations of her Fifth Amendment rights. However, at the conclusion of
Plaintiff’s PAC, she alleges, in a footnote, that Defendant(s)
failed and/or refused to show me, and/or provide to me, the
original and/or copy of the alleged complaining individual’s sworn
statement in these matters (i.e., the “grandmother” of the male
child) proving that the [SCSD] had, in fact (1) received a
complaint call from the “grandmother,” (2) that the identity of the
alleged person that called (said grandmother) was confirmed by the
[SCSD] person that received said call and, finally, (3) that the
receiving School district official then reduced said complaint call,
in writing, and then, thereby, filed and/or preserved said telephone
complaint form in the School district’s official complaint files
and/or (via fax, or mailed) filed said written complaint with
Defendant First Student.
(Dkt. No. 26, at 14.) Plaintiff alleges that these failures constitute several violations of her
constitutional rights, including the Fifth Amendment. (Id.) The Court liberally construes these
allegations as violations of Plaintiff’s due process rights under the Fifth and Fourteenth
Amendments. However, Plaintiff’s allegations fail to plausibly suggest a violation of her due
36
process rights. “While the filing of grievances is constitutionally protected, the manner in which
grievance investigations are conducted do not create a protected liberty interest.” Odom v.
Poirier, 99-CV-4933, 2004 WL 2884409, at *10 (S.D.N.Y. Dec. 10, 2004); Hamzik v. Office for
People with Developmental Disabilities, 859 F. Supp. 2d 265, 280 (N.D.N.Y. 2012) (holding that
“an employment grievance process is not a fundamental liberty interest protected by the due
process clause”); Smith v. Hogan, 10-CV-1025, 2011 WL 4433879, at *8 (D. Conn. Sept. 22,
2011). “Similarly, to the extent Plaintiff claims a property, rather than liberty interest[,] in the
grievance hearing or his employment, [she] does not allege a property interest cognizable under
the due process clause.” Smith, 2011 WL 4455879, at *8; see also McPherson v. New York City
Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (“An interest that can be terminated ‘at the
whim of another person’ is not protected by the Due Process clause.”); Rivera v. Cty. Sch. Dist.
Nine, 145 F. Supp. 2d 302, 306-07 (S.D.N.Y. 2001) (“Where there is no property interest in the
employment, there can be no property interest in the procedures that follow from the
employment.”).
Therefore, Plaintiff has failed to allege facts plausibly suggesting a violation of her
constitutional rights under the Fifth Amendment.
3.
Ninth Amendment
Plaintiff has failed to allege facts plausibly suggesting a violation of her Ninth
Amendment rights. The Ninth Amendment provides that “[t]he enumeration in the Constitution,
of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S.
Const. amend. IX. The Ninth Amendment, however, is “a rule of construction” and does not
give rise to “individual rights.” Jenkins v. C.I.R., 483 F.3d 90, 92 (2d Cir. 2007) (“The Ninth
37
Amendment is not an independent source of individual rights; rather, it provides a rule of
construction that [courts] apply in certain cases.”). “Therefore, although the Ninth Amendment
may provide the basis for recognition of un-enumerated rights, which themselves may be
enforceable against a State under the Due Process Clause of the Fourteenth Amendment, the
Ninth Amendment itself provides no substantive right.” Palmieri v. Town of Babylon, 06-CV0968, 2008 WL 3155153, at *17 (E.D.N.Y. Aug. 4, 2008); see also Williams v. Perry, 960 F.
Supp. 534, 540 (D. Conn. 1996) (holding that “a § 1983 claim based upon rights derived from
the Ninth Amendment in and of itself, fails to state a claim upon which relief can be granted”);
accord, Jendrzejczak v. Williams, 13-CV-1239, 2014 WL 2533041, at *13 (N.D.N.Y. June 5,
2014) (Suddaby, J.). Thus, to the extent that Plaintiff is alleging an independent violation of the
Ninth Amendment, she has failed to state claim upon which relief can be granted.
4.
Thirteenth Amendment
The Court agrees with Defendant for the reasons stated by Defendant in its memorandum
of law (Dkt. No. 31, Attach. 1, at 10-11 [Def.’s Mem. of Law]), that Plaintiff’s Thirteenth
Amendment claim is futile. “To sustain a claim under the Thirteenth Amendment, a plaintiff
must ‘demonstrate he has been subjected to compulsory labor akin to African slavery which in
practical operation would tend to produce like undesirable results.’” Jones v. City Sch. Dist. of
New Rochelle, 695 F. Supp. 2d 136, 148 (S.D.N.Y. 2010) (quoting Ford v. Nassau Cty. Exec., 41
F. Supp. 2d 392, 400-01 [E.D.N.Y. 1999]). Because Plaintiff has failed to allege facts plausibly
suggesting that she was forced into labor, she has failed to state a claim upon which relief can be
granted.
38
5.
Fourteenth Amendment
To set forth a claim for violation of her Fourteenth Amendment right to equal protection,
a plaintiff must allege the following: (1) that she was treated differently from others who were
similarly situated; and (2) that the differential treatment was motivated by discriminatory animus,
to punish or inhibit her exercise of constitutional rights, or with malicious and bad faith intent to
cause injury. Spencer, 734 F. Supp. 2d at 318 (citing Freedom Holdings, Inc. v. Spitzer, 357
F.3d 205, 234 [2d Cir. 2004]); Dorcely v. Wyandanch Union Free Sch. Dist., 665 F. Supp. 2d
178, 194 (E.D.N.Y. 2009).
Here, Plaintiff does not allege instances in her PAC where similarly situated employees
were treated differently than her. (Dkt. No. 26, ¶¶ 34, 16.) As an initial matter, Plaintiff appears
to allege that the Equal Protection claim in her PAC is premised on a “class of one.” (Dkt. No.
33, at 6-7 [Dkt. No. 26, ¶ 19; Pl.’s Opp’n Mem. of Law].) This claim fails as a matter of law
because “[t]he Supreme Court recently held that the Equal Protection Clause does not apply to a
public employee asserting a violation of the Clause based on a ‘class of one’ theory of liability.”
Appel v. Spiridon, 531 F.3d 138, 139 (2d Cir. 2008) (citing Engquist v. Or. Dep’t of Agric., 553
U.S. 591 [2008]); Fierro v. New York City Dept. of Educ., 994 F. Supp. 2d 581, 591 (S.D.N.Y.
2014).
Moreover, with respect to Plaintiff’s allegation that she was treated differently from other
white bus drivers, she alleges that she suffered injury by “finding out recently that she, as a black
female . . . was intentionally, and/or purposefully, treated differently by Defendants from other
similarly situated accused ‘white’ school bus drivers whereby the difference in treatment amount
to ‘white’ school bus drivers accused of misconduct, all, are able to by-pass being discharged.”
39
(Dkt. No. 26, ¶ 34.) Plaintiff is required to plead “more than a bare allegation that other
[individuals] were treated differently” to survive a motion to dismiss. Mosdos Chofetz Chaim,
Inc. v. Vill. of Wesley Hills, 701 F. Supp. 2d 568, 604 (S.D.N.Y. 2010) (citations omitted).
Plaintiff has failed to meet this requirement by neglecting to provide any relevant details, such as
specifics regarding the other bus drivers’ positions, the nature of the alleged misconduct
involved, the extent to which they were at fault, and what findings and/or discipline resulted, if
any. See Colandrea v. Town of Orangetown, 490 F. Supp. 2d 342, 349 (S.D.N.Y. 2007)
(“Plaintiff’s equal protection claim here fails because the complaint fails to allege any similarly
situated class of persons with respect to whom she was treated differently.”); O’Bradovich v. Vill.
of Tuckahoe, 325 F. Supp. 2d 413, 431 (S.D.N.Y. 2004) (dismissing equal protection claim
where “complaint does not allege that Plaintiffs were similarly situated compared to the other
citizens who were” treated differently); Ruston v. Town Bd. for the Town of Skaneateles, 06-CV927, 2008 WL 5423038, at *6 (N.D.N.Y. Dec. 24, 2008) (Scullin, J.) (dismissing an action for
failure to state a claim where plaintiff included only a bare allegation of selective enforcement,
noting that “[t]his single allegation is insufficient to state a claim that Defendant Village treated
others, with a high degree of similarity to Plaintiffs, differently”).
Accordingly, Plaintiff has failed to plead facts plausibly suggesting a claim under the
Fourteenth Amendment with respect to the SCSD defendants.
6.
Municipal Liability Under 42 U.S.C. § 1981
“When the defendant is a state actor, Section 1983 is the exclusive remedy for violations
of rights guaranteed under Section 1981.” Bermudez v. City of New York, 783 F. Supp. 2d 560,
576 (S.D.N.Y. 2011); accord, Greene v. Brentwood Union Free Sch. Dist., 966 F. Supp. 2d 131,
40
166 (E.D.N.Y. 2013). “For purposes of § 1983, school districts are considered to be local
governments and are subject to similar liability as local governments under Monell.” DzugasSmith v. Southold Union Free Sch. Dist., 08-CV-1319, 2012 WL 1655540, at *20 (E.D.N.Y. May
9, 2012). “A school district’s liability under Monell may be premised on any of three theories:
(1) that a district employee was acting pursuant to an expressly adopted official policy; (2) that a
district employee was acting pursuant to a longstanding practice or custom; or (3) that a district
employee was acting as a ‘final policymaker.’” Hurdle v. Bd. of Educ. of City of New York, 113
F. App’x 423, 424-25 (2d Cir. 2004) (quoting Lytle v. Carl, 382 F.3d 978, 982 [9th Cir. 2004]).
“Official policy traditionally takes the form of an ‘ordinance, regulation, or decision
officially adopted and promulgated by [the municipality’s] officers.’” Chin v. New York City
Hous. Auth., 575 F. Supp. 2d 554, 561 (S.D.N.Y. 2008) (quoting Monell v. Dep’t of Soc. Servs.
of City of N.Y., 436 U.S. 658, 690 [1978]). “[A] qualifying custom consists of a ‘longstanding
practice’ that ‘constitutes the ‘standard operating procedure’ of the local governmental entity.’”
Chin, 575 F. Supp. 2d at 561 (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 [1989]).
However, “[t]o show a policy, custom, or practice, the plaintiff need not identify an express rule
or regulation . . . [i]t is sufficient to show, for example, that a discriminatory practice of
municipal officials was so ‘persistent or widespread’ as to constitute ‘a custom or usage with the
force of law . . . or that a discriminatory practice of subordinate employees was ‘so manifest as to
imply the constructive acquiescence of senior policy-making officials.’” Patterson v. Cty. of
Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004) (quotations omitted). “A policy, custom, or
practice may also be inferred where ‘the municipality so failed to train its employees as to display
a deliberate indifference to the constitutional rights of those within its jurisdiction.’” Patterson,
41
375 F.3d at 226 (quoting Kern v. City of Rochester, 93 F.3d 38, 44 [2d Cir. 1996]). “Liability of
a municipal defendant or an individual sued in his official capacity under § 1981 and § 1983
cannot, however, be premised on a theory of respondeat superior.” Id.
In the present case, Plaintiff alleges in her PAC that SCSD, and the proposed defendants
employed by SCSD, acted “under the direction of his/her superior(s), via an official policy and/or
custom . . . to engage in and cause Plaintiff to be denied her rights, privileges, and/or immunities
as mandated in Defendants [sic] First Student[’]s National Employee Handbook.” (Dkt. No. 26, ¶
6.) This allegation, as well as the remaining allegations in Plaintiff’s PAC, are generalized and
insufficient to show discriminatory policies or customs. As discussed above in Part III.D.5. of
this Decision and Order, Plaintiff has made only conclusory allegations regarding disparate
treatment in her PAC and has failed to allege other instances of discriminatory conduct tending to
show that a discriminatory practice of SCSD officials was so “persistent or widespread” as to
constitute “a custom or usage with the force of law.” See Littlejohn v. City of New York, 14-CV1395, 2015 WL 4604250, at *11 (2d Cir. 2015) (holding that “[plaintiff] does not allege a
persistent or widespread municipal policy or ‘custom . . . with the force of law’ that enabled the
discrimination against her–i.e., her demotion–other than general and conclusory allegation that
there was such a policy”); Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411, 427 (S.D.N.Y.
2002) (“A single incident by itself is generally insufficient to establish the affirmative link
between the municipal policy or custom and the alleged unconstitutional violation.”); City of
Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985) (“Proof of a single incident of unconstitutional
activity is not sufficient to impose liability under Monell, unless proof of incident includes proof
that it was caused by an existing, unconstitutional municipal policy, which policy can be
attributed to a municipal policymaker.”) (plurality opinion).
42
Moreover, Plaintiff’s PAC fails to allege that an employee with final decision-making
authority engaged in racial discrimination. Rather, Plaintiff has asserted only conclusory
allegations with respect to possible involvement by a policymaker. Similarly, Plaintiff’s bare
assertion “[t]hat Defendants failed to properly train each and/or every agent and/or subordinate
employee of Defendants” (Dkt. No. 26, ¶ 10) falls well short of pleading facts plausibly
suggesting deliberate indifference to constitutional rights. See Triano v. Town of Harrison, NY,
895 F. Supp. 2d 526, 540 (S.D.N.Y. 2012) (collecting cases); Johnson v. City of New York, 06CV-9426, 2011 WL 666161, at *4 (S.D.N.Y. Feb. 15, 2011) (holding that complaint that
“contain[ed] only an unsupported conclusory allegation that the City failed to train the individual
Defendants” could not withstand a motion to dismiss because plaintiff did not plead any facts
that “plausibly allege[d] a specific deficiency in the training or supervision program”).
7.
Individual Liability of the Proposed SCSD Defendants Under 42
U.S.C. § 1981
“An individual may be held liable under §§ 1981 and 1983 only if that individual is
‘personally involved in the alleged deprivation.’” Littlejohn, 2015 WL 4604250, at *10 (quoting
Back v. Hasting on Hudson Union Free Sch. Dist., 365 F.3d 107, 127 [2d Cir. 2004]). Personal
involvement can be established by showing that
(1) the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy of
custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the
defendant exhibited deliberate indifference . . . by failing to act on
information indicating that unconstitutional acts were occurring.
43
Id. (citing Back, 365 F.3d at 127). “The plaintiff is required to make this showing for each
particular defendant’s personal involvement in the alleged violation.” Tardd v. Brookhaven Nat’l
Lab., 407 F. Supp. 2d 404, 412 (E.D.N.Y. 2006); Stevens v. New York, 691 F. Supp. 2d 392, 401
(S.D.N.Y. 2009) (noting that plaintiff “must assert personal involvement of each of the
individual defendants in order to proceed with claims based on § 1981”). “In addition to
satisfying one of these requirements, a plaintiff must also establish that the supervisor’s actions
were the proximate cause of the plaintiff’s constitutional deprivation. Finally, as with individual
liability, in the § 1983 context, a plaintiff must establish that a supervisor’s behavior constituted
intentional discrimination on the basis of a protected characteristic . . . .” Raspardo v. Carlone,
770 F.3d 97, 116 (2d Cir. 2014) (citations omitted).
Here, the PAC does not allege facts plausibly suggesting the necessary personal
involvement or direct participation of proposed defendants Sharon Contreas and Haine Alica.
Specifically, Plaintiff fails to allege what conduct, if any, they engaged in that resulted in a
deprivation of Plaintiff’s rights. Ms. Contreas and Ms. Alica are referenced in the PAC only
when Plaintiff groups them together with other proposed defendants that allegedly violated her
rights. Plaintiff does not allege facts plausibly suggesting that Ms. Contreas and/or Ms. Alica
directly participated in unconstitutional conduct, that they were aware of it but failed to remedy
the misconduct, that they created a policy or custom that led to this conduct, or that they were
grossly negligent or exhibited deliberate indifference. (Dkt. No. 26, ¶¶ 14, 20, 27.) Because
Plaintiff has not alleged the specific personal involvement of these proposed defendants, her
claim as to them cannot withstand a motion to dismiss. See Alfaro Motors, Inc. v. Ward, 814
F.2d 883, 886 (2d Cir. 1987) (dismissing claims against defendants where “the complaint [w]as
44
entirely devoid of any allegations of their personal involvement in” the alleged deprivations of
rights and plaintiff had “failed to allege . . . that the defendants were directly and personally
responsible for the purported unlawful conduct.”); Davis v. Cty. of Nassau, 355 F. Supp. 2d 668,
677 (E.D.N.Y. 2005) (“A complaint that essentially regurgitates the relevant ‘personal
involvement’ standard, without offering any facts indicating that, or how, an individual defendant
in a supervisory role was personally involved in a constitutional violation, cannot withstand
dismissal.”); Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002)
(“[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.”) (internal quotations omitted).
Plaintiff’s allegations regarding Patricia Bailey are a closer call. Specifically, Plaintiff
alleges that Ms. Bailey met and spoke with the proposed defendants before deciding to remove
Plaintiff from all SCSD bus routes and placing her on administrative leave. (Dkt. No. 26, ¶.) As
discussed above in Part III.A. of this Decision and Order, Ms. Bailey also signed Plaintiff’s
termination letter. Courts in this Circuit have found personal involvement to exist under similar
circumstances. See, e.g., Pinero v. Long Island State Veterans Home, 375 F. Supp. 2d 162, 169
(E.D.N.Y. 2005) (finding defendant was personally involved where the complaint alleged that
“[defendant] was the individual that signed the letter that informed [plaintiff] that she would not
be reinstated. The complaint also generally alleges that [defendant] was personally involved in
the decision to terminate the Plaintiff”); Duse v. IBM Corp., 748 F. Supp. 956, 968 (D. Conn.
1990) (finding genuine issue of fact where a dispute existed regarding whether supervisor did
more than just sign a termination letter). On the other hand, courts have also held that
“[i]nvolvement in discussions that lead to a decision is not personal involvement under § 1983.”
45
Conklin v. Cty. of Suffolk, 859 F. Supp. 2d 415, 441 (E.D.N.Y. 2012) (quoting Zdziebloski v.
Town of E. Greenbush, N.Y., 336 F. Supp. 2d 194, 202 [N.D.N.Y. 2004]).
Notwithstanding the close issue of personal involvement, Plaintiff has failed to allege
facts plausibly suggesting Ms. Bailey’s intent to discriminate against Plaintiff on the basis of her
race. “To survive a motion to dismiss [under § 1981], the plaintiff must specifically allege
events claimed to constitute intentional discrimination as well as circumstances giving rise to a
plausible inference of racially discriminatory intent.” Williams v. New York City Hous. Auth., 05CV-2750, 2007 WL 4215876, at *4 (S.D.N.Y. Nov. 30 2007) (internal quotations omitted).
“Naked assertions of race discrimination, without any supporting facts, are insufficient to state a
Section 1981 claim.” Fouche v. St. Charles Hosp., 65 F. Supp. 3d 452, 457 (E.D.N.Y. 2014). As
discussed above in Part III.A. of this Decision and Order, Plaintiff’s employment was terminated
when it was found that she had gone to a student’s home on her bus route while off-duty, which
Plaintiff has admitted to doing in her pleadings. Plaintiff alleges that the true basis for her
termination was because of her race and being mistaken for another African-American female
who also went to the home and made threatening statements. Plaintiff, however, has not pled any
facts plausibly suggesting that Ms. Bailey terminated her employment on this basis. See Albert v.
Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (finding the “naked allegation that [the defendants]
‘selectively enforced the College rules against plaintiffs because they are black or Latin’ to be
“too conclusory to survive a motion to dismiss”); Hines v. F.J.C. Sec. Co., 96-CV-0263, 1998
WL 60967, at *3 (S.D.N.Y. Feb. 13, 1998) (concluding that “[t]he bare assertion that [the]
[d]efendants denied [the] [p]laintiff access to the government building” because of the plaintiff’s
skin color, “without any specific allegation of a casual link between the [d]efendants’ conduct
46
and the [p]laintiff’s race, too conclusory to withstand a motion to dismiss”).
As stated in Fouche, supra, “the Plaintiff’s bald assertions of discrimination–unsupported
by any meaningful comments, actions, or examples of similarly–situated persons outside of
Plaintiff’s protected class being treated differently–are insufficient to survive a motion to
dismiss.” Fouche, 64 F. Supp. 3d at 457. Accordingly, Plaintiff’s proposed claims against the
proposed SCSD defendants under § 1981 cannot withstand a motion to dismiss and are therefore
futile.
8.
42 U.S.C. §§ 1983, 1985(2)-(3), and 1986
“Section 1983 is not itself a source of substantive rights[,] but merely provides a method
for vindicating federal rights elsewhere conferred[.]” Patterson v. Cty. of Oneida, 375 F.3d 206,
225 (2d Cir. 2004) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689 [1979]).
A plaintiff asserting a § 1983 conspiracy claim must first successfully allege a violation of the
underlying constitutional right. See Clark v. City of Oswego, 03-CV-0202, 2007 WL 925724, at
*7 (N.D.N.Y. Mar. 26, 2007) (citing Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 [2d Cir.
1995]).
As discussed above, Plaintiff has failed to allege facts plausibly suggesting that the
proposed SCSD defendants violated her constitutional rights. As such, Plaintiff cannot state a
claim under § 1983 because she has not successfully alleged a violation of an underlying
constitutional right. Furthermore, because Plaintiff cannot state a conspiracy claim under § 1983,
Plaintiff cannot state a conspiracy claim under § 1985(2)-(3). See Nasca v. Cty. of Suffolk, 05CV-1717, 2008 WL 53247, at *8 n.8 (E.D.N.Y. Jan. 2, 2008) (holding that “Plaintiff’s
conspiracy claim under 42 U.S.C. § 1985 must also fail because there is no underlying Section
47
1983 violation”). Finally, “[h]aving failed to state a cause of action under § 1985, plaintiff has
also failed to state a claim under § 1986.” Dacey v. Dorsey, 568 F.2d 275, 277 (2d Cir. 1978);
see also Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d Cir. 1994) (“A claim under section
1986 . . . lies only if there is a viable conspiracy claim under 1985.”).
Therefore, Plaintiff has failed to state a claim against the SCSD defendants under 42
U.S.C. §§ 1983, 1985(2)-(3), and 1986 upon which relief can be granted.
E.
Whether Plaintiff Has Alleged Facts Plausibly Suggesting that Defendant,
Local 182, and the Remaining Proposed Defendants Not Acting Under Color
of State Law, Conspired to Violate Her Civil Rights Under § 1985(3)
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated by Defendant in its memorandum of law. (Dkt. No. 31, Attach. 1, at 8-10
[Def.’s Mem. of Law].) To those reasons, the Court adds the following analysis.
To survive a motion to dismiss a conspiracy claim under § 1985(3), a plaintiff must allege
facts plausibly suggesting the following four elements: “(1) a conspiracy; (2) for the purpose of
depriving, either directly or indirectly, any person or class of persons of the equal protection of
the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of
the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any
right or privilege of a citizen of the United States.” Thomas v. City of New York, 12-CV-5061,
2013 WL 3810217, at *5 (E.D.N.Y. July 23, 2013) (quoting United Bhd. of Carpenters v. Scott,
463 U.S. 825, 828-29 [1983]); Turkmen v. Hasty, 789 F.3d 218, 262 (2d Cir. 2015). In addition,
a plaintiff must allege that the conspiracy is “motivated by some racial or perhaps otherwise
class-based, invidious discriminatory animus behind the conspirators’ action.” Thomas, 2013 WL
3810217, at *5 (quoting Britt v. Garcia, 457 F.3d 264, 270, n.4 [2d Cir. 2006] [internal quotation
48
marks omitted]). Because § 1985 has no state action requirement, a claim of conspiracy may be
viable against private entities or individuals. Thomas, 2013 WL 3810217, at *5 n.5. Finally,
“section 1985 conspiracy claims are held to a heightened pleading standard.” Van Dunk v. St.
Lawrence, 604 F. Supp. 2d 654, 663 (S.D.N.Y. 2009) (citing Leon v. Murphy, 988 F.2d 303, 311
[2d Cir. 1993]).
For the reasons discussed above in Part III.C. of this Decision and Order, Plaintiff has
failed to allege facts plausibly suggesting a conspiracy. Once again, Plaintiff’s Complaint and
PAC are devoid of any allegations of instances of conduct plausibly suggesting any “meeting of
the minds” beyond the proposed defendants communicating about Plaintiff’s case and/or the
complaint lodged against Plaintiff by the student’s grandmother. As discussed above, these
communications, in and of themselves, and without alleging specific facts supporting a concerted
effort or plan between the parties, are insufficient to plausibly suggest conspiratorial conduct.
For these reasons, Plaintiff’s conspiracy claims against Defendant, Local 182, and the remaining
proposed defendants employed by these parties are dismissed. Furthermore, as discussed above
in Part III.D.6. of this Decision and Order, because Plaintiff has failed to state a claim under §
1985, Plaintiff cannot state a claim under § 1986 upon which relief can be granted.
F.
Whether Plaintiff’s Proposed Claim Under § 1982 Is Futile
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated by Defendant in its memorandum of law. (Dkt. No. 31, Attach. 1, at 11-12
[Def.’s Mem. of Law].) To those reasons, the Court adds the following analysis.
“Courts have consistently held that Section 1982, which by its terms governs property
rights, does not create an employment discrimination cause of action.” Bailey v. New York City
49
Dept. of Transp., 93-CV-1121, 1997 WL 26290, at *3 (S.D.N.Y. Jan. 22, 1997). Instead,
“section 1982 has been held to apply only to real and personal property rights.” Bailey, 1997 WL
26290, at *3 (citing Abel v. Bonfanti, 625 F. Supp. 263, 269 [S.D.N.Y. 1985]). “As such,
Section 1982 has no application to claims of employment discrimination ‘where [p]laintiff’s job
did not constitute real or personal property.’” Crodell v. Unisys Corp., 66 F. Supp. 3d 363, 364
(W.D.N.Y. 2014) (quoting Faulkner v. Niagara Mohawk Power Corp., 05-CV-0974, 2006 WL
3207815, at *8 [N.D.N.Y. Nov. 3, 2006]).
Here, Plaintiff has not identified any real or personal property interests in her pleadings.
Rather, she references injury to her property interests generally and as it relates to her
employment discrimination claims. (Dkt. No. 26, ¶ 11, 16 [Pl.’s Am. Compl.].) Therefore,
Plaintiff’s proposed claims alleging violations under Section 1982 are futile.
G.
Whether Plaintiff’s Proposed Claim Under § 1988 Is Futile
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated by Defendant in its memorandum of law. (Dkt. No. 31, Attach. 1, at 12
[Def.’s Mem. of Law].) To those reasons, the Court adds the following analysis.
“Section 1988 allows a prevailing party, in certain cases, to seek reimbursement for
reasonable attorney’s fees.” Whitehurst v. 230 Fifth, Inc., 11-CV-0767, 2011 WL 3163495, at *7
(S.D.N.Y. July 26, 2011) (citing 42 U.S.C. § 1988[b]). “Section 1988 also provides that where
there are gaps in federal law with respect to the availability of suitable remedies for civil rights
violations, the courts should look to state law insofar as it is not inconsistent with federal law.”
Valley Disposal, Inc. v. Cent. Vt. Solid Waste Mgmt. Dist., 113 F.3d 357, 362 (2d Cir. 1997)
(citing 42 U.S.C. § 1988[a]). However, “§ 1988 does not provide an independent cause of
50
action.” Weiss v. Violet Realty, Inc., 160 F. App’x 119, 120 (2d Cir. 2005); Alston v. Sebelius,
13-CV-4537, 2014 WL 4374644, at *19 (E.D.N.Y. Sept. 2, 2014). In other words, Ҥ 1988
defines procedures under which remedies may be sought in civil rights actions, but it does not
create independent causes of action.” Brown v. Reardon, 770 F.2d 896, 907 (10th Cir. 1985); see
also Valley Disposal, Inc. v. Cent. Vt. Solid Waste Mgmt. Dist., 71 F.3d 1053, 1057 (2d Cir.
1995) (“[A] request for attorney’s fees under § 1988 raises legal issues collateral to the main
cause of action.”).
In the present case, Plaintiff has failed to allege facts plausibly suggesting that available
federal statutes are inadequate to remedy the alleged violations of her civil rights. Moreover,
Plaintiff cannot maintain an independent cause of action under § 1988 even if she prevails in any
part of this action, which would entitle her to attorneys’ fees. See Whitehurst, 2011 WL
3163495, at *7. Accordingly, Plaintiff’s proposed cause of action under § 1988 is futile.
H.
Whether Plaintiff’s Discrimination Claim Under the New York State Human
Rights Law, as Alleged in the Original Complaint, Is Barred by the Electionof-Remedies Provision
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated by Defendant in its memorandum of law. (Dkt. No. 31, Attach. 1, at 12-13
[Def.’s Mem. of Law].) To those reasons, the Court adds the following analysis.
Section 297(9) of the New York Human Rights Law provides that “[a]ny person claiming
to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court
of appropriate jurisdiction.” However, “[a]fter the [State Division of Human Rights] renders a
decision on a charge of discrimination, a plaintiff’s only recourse is to ‘appeal that decision to the
Supreme Court of the State of New York.’” Russell v. Aid to Developmentally Disabled, Inc., 1251
CV-0389, 2013 WL 633573, at *13 (E.D.N.Y. Feb. 20, 2013) (quoting Ganthier v. N. ShoreLong Island Jewish Health Sys., Inc., 345 F. Supp. 2d 271, 282 [E.D.N.Y. 2004]). The statute
provides an exception to the election-of-remedies rule when the charge filed with the State
Division of Human Rights (“SDHR”) is dismissed for the following reasons: “(1) the agency has
dismissed the complaint for administrative convenience; (2) there is untimeliness on the part of
the agency; or (3) the claimant’s election of an administrative remedy is annulled.” Brown v. New
York State Dept. of Corr. Servs., 583 F. Supp. 2d 404, 414 (W.D.N.Y. 2008). Otherwise, the
HRL “require[s] dismissal of a suit in court if the complainant lodges a complaint with . . .
[SDHR]. This bar applies in federal as well as state court.” Higgins v. NYP Holdings, Inc., 836
F. Supp. 2d 182, 187 (S.D.N.Y. 2011) (citing York v. Ass’n of the Bar of City of N.Y., 286 F.3d
122, 127 [2d Cir. 2002]).
Here, Plaintiff filed an administrative complaint with the SDHR on October 31, 2012.
(Dkt. No. 31, Attach. 2, at Ex. B [Novich Decl.].) Defendant has attached the determination of
the SDHR to its memorandum of law, of which the Court may take judicial notice on the current
motion. See Evans v. New York Botanical Garden, 02-CV-3591, 2002 WL 31002814, at *4
(S.D.N.Y. Sept. 4, 2002) (“A court may take judicial notice of the records of state administrative
procedures, as these are public records, without converting a motion to dismiss to one for
summary judgment.”) (collecting cases).12 Following an investigation, the SDHR determined
that there was no probable cause “to believe that [First Student] has engaged in or is engaging in
the unlawful discriminatory practice complained of.” (Dkt. No. 31, Attach. 2, at Ex. B.)
12
In addition, Plaintiff references the fact that she filed an administrative complaint
in her PAC (Dkt. No. 26, at 3) and here original Complaint (Dkt. No. 1, ¶ 8). Therefore, the
Court may review the SDHR’s determination because it has been incorporated by reference.
52
Therefore, because Plaintiff’s administrative claim was not dismissed under any of the
exceptions to the election-of-remedies provision, Plaintiff’s discrimination claim under the HRL
is barred, pursuant to New York Executive Law § 279(9). See Janneh v. Regal Entm’t Grp., 07CV-0079, 2007 WL 2292981, at *1 (N.D.N.Y. Aug. 6, 2007) (McAvoy, J.); Guardino v. Vill. of
Scarsdale Police Dep’t, 09-CV-8599, 2011 WL 4000999, at *2 (S.D.N.Y. Sept. 6, 2011) (“When
the [SDHR] has issued a finding of no probable cause . . . plaintiff’s claims . . . are barred by the
law[’s] election of remedies provisions because [plaintiff] has already litigated the claims before
the [SDHR].”).
Finally, although Plaintiff alleges in her PAC that she received a right-to-sue letter from
the SDHR (Dkt. No. 26, at 3), “[t]hat has nothing to do with the election-of-remedies provision,
which bars plaintiff’s HRL claims in this action.” Brown, 583 F. Supp. 2d at 414 (citing Janneh,
2007 WL 2292981, at *1). Accordingly, Plaintiff’s discrimination claim under the HRL against
Defendant is dismissed for lack of subject-matter jurisdiction.
I.
Whether Plaintiff’s Cause of Action Under 42 U.S.C. § 1981 Against the
Individual Proposed Defendants, Except for SCSD, Is Futile
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons discussed below.
Contrary to employment discrimination claims brought under Title VII, which may be
brought only against the employer, “individuals may be held liable under § 1981.” Whidbee v.
Garzarelli Food Specialities, Inc., 223 F.3d 62, 74-75 (2d Cir. 2000). Furthermore, § 1981
“covers racially, discriminatory acts of private individuals and corporations because there is no
‘state action’ requirement.” Harvey v. NYRAC, Inc., 813 F. Supp. 206, 209 (E.D.N.Y. 1993).
53
However, “in order to make out a claim for individual liability under § 1981, a plaintiff must
demonstrate some affirmative link to causally connect the actor with the discriminatory action.”
Whidbee, 223 F.3d at 75 (internal quotations omitted). Therefore, “[a] claim seeking personal
liability under section 1981 must be predicated on the actor’s personal involvement.” Id.
“A § 1981 claim requires plaintiff to allege: (1) that he is a member of a racial minority;
(2) that defendants had an intent to discriminate against him on the basis of race; and (3) that the
discrimination concerned one or more of the activities enumerated in the statute, namely make
and enforce contracts, sue and be sued, give evidence, etc.” Williams v. City of Mount Vernon,
428 F. Supp. 2d 146, 159 (S.D.N.Y. 2006). “In order to survive a motion to dismiss a section
1981 claim, a ‘plaintiff must specifically allege the events claimed to constitute intentional
discrimination as well as circumstances giving rise to a plausible inference of racially
discriminatory intent.’” Odom v. Columbia Univ., 906 F. Supp. 188, 194 (S.D.N.Y. 1995)
(quoting Yusuf v. Vassar Coll., 35 F.3d 709, 713 [2d Cir. 1994]).
Here, Plaintiff’s claims against proposed defendants Frank Luciano, Matt Conti, Ty
Worrell, John/Jane Doe (C.E.O./President of First Student), John/Jane Doe (Investigator), and
Jimmie James fail for the same reasons discussed above in Part III.D.7. of this Decision and
Order. Specifically, Plaintiff has failed to sufficiently allege the personal involvement of these
proposed defendants and facts plausibly suggesting their intent to discriminate against Plaintiff
on the basis of her race. Although Mr. James was the one who received the complaint from the
student’s grandmother, he referred investigation of the matter to First Student. (Dkt. No. 26, at
Ex. P/D/-7.) Once the investigation was complete, he then turned the matter over to his Director.
(Id.) These allegations fail to plausibly suggest that Mr. James’ was personally involved and
54
intended to discriminate against Plaintiff. See Vega v. Artus, 610 F. Supp. 2d 185, 199
(N.D.N.Y. 2009) (stating that facility superintendent’s act of “referring [plaintiff’s] letters to staff
for investigation is not sufficient to establish [his] personal involvement”).
With respect to proposed defendants Lynea Lemke, James LaGrange, and Gary Krick,
Plaintiff has sufficiently alleged facts regarding their personal involvement but has not alleged
facts plausibly suggesting their intent to discriminate against Plaintiff. Plaintiff has merely
alleged that her employment was terminated on the basis that she is African American without
offering any additional support. Indeed, as discussed above in Part III.A. of this Decision and
Order, Ms. Lemke told Plaintiff that she was being terminated following investigation of an
incident that involved Plaintiff going to a student’s home while off-duty, an act to which Plaintiff
admits.
Furthermore, Plaintiff has failed to allege facts plausibly suggesting circumstances giving
rise to a plausible inference of racially discriminatory intent. For example, Plaintiff alleges that
Mr. LaGrange refused to represent her at her grievance hearings after being told that she never
submitted a written request that he do so. (Dkt. No. 26, ¶¶ 7, 23.) After being told that Plaintiff
requested his representation, Mr. LaGrange allegedly stated “I don’t give a damn about [Plaintiff]
if you don’t put it in writing, it never happened.” (Id.) These allegations do not raise an inference
that Mr. LaGrange refused to represent Plaintiff on the basis of her race. If anything, one could
infer that Mr. LaGrange refused to represent Plaintiff because she did not submit a formal written
request that he do so, presumably because that is Local 182's policy.
Accordingly, the Court finds that Plaintiff has failed to state a claim under § 1981 upon
which relief can be granted.
55
J.
Whether Plaintiff Has Alleged Facts Plausibly Suggesting a Violation of Her
Rights Under Title VII
After carefully considering the matter, the Court answers this question in the negative
with respect to Defendant, Local 182, and SCSD in Plaintiff’s PAC. However, for the reasons
discussed below, the Court answers this question in the affirmative with respect to Plaintiff’s
Title VII claim against Defendant in her original Complaint.
1.
Individuals Defendants
It is well established that “[e]mployers, not individuals, are liable under Title VII.”
Reynolds v. Barrett, 685 F.3d 193, 292 (2d Cir. 2012); see also Raspardo,770 F.3d at 113
(holding that Title VII “does not create liability in individual supervisors and co-workers who are
not the plaintiffs’ actual employers”); Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010)
(“[T]he remedial provisions of Title VII . . . do not provide for individual liability.”).
Accordingly, Plaintiff cannot state a claim under Title VII against the individual proposed
defendants that were employed by Defendant, SCSD, and/or Local 182.
2.
Requirements to State a Prima Facie Claim Under Title VII
“The substantive standards applicable to claims of employment discrimination under Title
VII . . . are also generally applicable to claims of employment discrimination under § 1981 . . . .”
Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010).13
13
“The primary doctrinal differences between Title VII claims and employment
discrimination claims pursuant to Section 1981 and 1983 regard (1) the statute of limitations, (2)
the requirement that Section 1981 or 1983 plaintiffs must show employment discrimination
pursuant to an official policy or custom, (3) that individuals may be held liable under Sections
1981 and 1983, but not under Title VII, and (4) a Title VII claim may be established through
proof of negligence, whereas Section 1981 and 1983 claims must be supported by evidence of
intentional discrimination.” Jackson v. City of New York, 29 F. Supp. 3d 161, 170 n.10 (E.D.N.Y.
2014).
56
In Littlejohn, the Second Circuit recently stated that
while the plaintiff ultimately will need evidence sufficient to prove
discriminatory motivation of the part of the employer-defendant, at
the initial stage of the litigation–prior to the employer’s coming
forward with the claimed reason for its action–the plaintiff does
not need substantial evidence of discriminatory intent. If she
makes a showing (1) that she is a member of a protected class, (2)
that she was qualified for the position she sought, (3) that she
suffered an adverse employment action, and (4) can sustain a
minimal burden of showing facts suggesting an inference of
discriminatory motivation, then she has satisfied the prima facie
requirements and a presumption of discriminatory intent arises in
her favor, at which point the burden of production shifts to the
employer, requiring that the employer furnish evidence of reasons
for the adverse action.
Littlejohn, 2015 WL 4604250, at *7. The Court further stated that “[t]he facts alleged must give
plausible support to the reduced requirements that arise under McDonnell Douglas in the initial
phase of a Title VII litigation. The facts required by Iqbal to be alleged in the complaint need not
give plausible support to the ultimate question of whether the adverse employment action was
attributable to discrimination. They need only give plausible support to a minimal inference of
discriminatory motivation.” Id. at *8.
“An inference of discrimination can arise from circumstances including, but not limited
to, ‘the employer’s criticism of the plaintiff’s performance in ethnically degrading terms; or its
invidious comments about others in the employee’s protected group; or the more favorable
treatment of employees not in the protected group; or the sequence of events leading to the
plaintiff’s discharge.’” Id. (quoting Leibowitz v. Cornell Univ., 584 F.3d 487, 502 [2d Cir.
2009]).
57
3.
Proposed Title VII Claim Against the Proposed Defendants in
Plaintiff’s PAC
Despite the low threshold for stating a claim under Title VII, the Court finds that Plaintiff
has not alleged facts plausibly suggesting a minimal inference of discriminatory motivation. As
discussed throughout this Decision and Order, Plaintiff has made only bare and naked allegations
that she was subjected to racial discrimination. Accordingly, Plaintiff has failed to state a Title
VII claim against the proposed defendants.
4.
Title VII Claim Against First Student in Plaintiff’s Original
Complaint14
Notwithstanding the failure of Plaintiff’s Title VII claim in her PAC, Plaintiff has alleged
facts in her original Complaint, which plausibly suggest a minimal inference of discriminatory
motivation. Plaintiff has done so through her description of three cases involving white school
bus drivers that allegedly received favorable treatment after being investigated for employee
misconduct. (Dkt. No. 1, ¶¶ 14-16 [Pl.’s Compl.].) It bears noting that these allegations were
absent from Plaintiff’s PAC; rather, Plaintiff alleged that she was discriminated against under a
“class of one” theory of liability. See, supra, Part III.D.5. of this Decision and Order.
“[A] showing of disparate treatment ‘is a recognized method of raising an inference of
discrimination for the purposes of making out a prima facie case [under McDonnell Douglas].’”
Raspardo, 770 F.3d at 126 (quoting Ruiz v. Cty. of Rockland, 609 F.3d 486, 493 [2d Cir. 2010]).
“Raising such an inference, however, requires the plaintiff to show that the employer treated him
or her ‘less favorably than a similarly situated employee’ outside of the protected group.” Id.
14
The Court notes that the allegation in the original Complaint that there were
similarly situated white bus drivers is in no way incorporated in the PAC, because the PAC (if
accepted) would supersede the original Complaint in all respects, pursuant to N.D.N.Y.
L.R.7.1(a)(4).
58
“To be ‘similarly situated,’ the individuals with whom [plaintiff] attempts to compare
herself must be similarly situated in all material respects.” Spencer, 734 F. Supp. 2d at 318-19
(quoting Shumway v. United Parcel Serv., 118 F.3d 60, 64 [2d Cir. 1997]). “Specifically,
plaintiff must demonstrate that her ‘similar’ coworkers were subject to the same performance
evaluation and discipline standards, and that they engaged in comparable conduct.” Id. at 319
(citing Graham v. Long Island R.R., 230 F.3d 34, 39-40 [2d Cir. 2000]). “‘[T]he standard for
comparing conduct requires a reasonably close resemblance of the facts and circumstances of
plaintiff’s and comparator’s cases, rather than a showing that both cases are identical.’” Ruiz v.
Cty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010) (quoting Graham, 230 F.3d at 40).
“Ordinarily, ‘[w]hether two employees are similarly situated . . . presents a question of fact,’
rather than a legal question to be resolved on a motion to dismiss.” Brown v. Daikin Am. Inc.,
756 F.3d 219, 230 (2d Cir. 2014) (quoting Graham, 230 F.3d at 39). However, “the court ‘still
must determine whether, based on a plaintiff’s allegations in the complaint, it is plausible that a
jury could ultimately determine that the comparators are similarly situated.’” Vaher v. Town of
Orangetown, N.Y., 916 F. Supp. 2d 404, 434 (S.D.N.Y. 2013) (quoting Mosdos Chofetz Chaim,
Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 697-98 [S.D.N.Y. 2011]).
In the first case involving employee misconduct by a white school bus driver, Plaintiff
alleges that the driver was disciplined after dropping a student off at an unauthorized stop
approximately six minutes away by foot. (Dkt. No. 1, ¶ 14.) As a result, the bus driver was
“placed on administrative leave for several weeks but then allowed to return to work.” (Id.)
59
Regarding the second white school bus driver, Plaintiff alleges the second bus driver was
operating her school bus with her bus monitor when the bus broke down. (Id., ¶ 15.) The
students on the bus were evacuated to a rescue bus that arrived to take them home. (Id.) The
second bus driver and bus monitor were required to check the bus to ensure that no students
remained on the disabled bus before the bus driver drove the disabled bus back to base. (Id.)
The rescue bus driver was also required to check the disabled bus for students before departing
but did not do so because the second bus driver and the bus monitor had not found any students
during their sweep of the disabled bus. (Id.) Upon returning to base, the rescue bus driver found
a sleeping child in the back of the disabled bus. (Id.) Plaintiff alleges that the original driver of
the disabled bus “was placed on administrative leave, but her monitor a [sic] African American
male was terminated immediately.” (Id.)
Finally, Plaintiff alleges that the third bus driver failed to perform her “sleeping child
procedure” and brought two sleeping children back to the bus yard. (Id., ¶ 16.) When the third
bus driver discovered that the children were still on the bus, the driver allegedly drove the bus
out of the yard without reporting the situation to “safety.” (Id.) A witness saw the two children
on the bus in the bus yard and reported it to management. (Id.) According to Plaintiff, the third
bus driver “was placed on administrative leave but then allowed to return to work a short period
after.” (Id.)
Plaintiff appears to allege that, in all three cases, the white bus drivers were subject to the
same disciplinary policies contained in First Student’s National Employee Handbook. (Id.) To
be sure, Plaintiff’s allegations are sparse and lacking certain relevant details, such as the
disciplinary proceedings the drivers and the monitor were subjected to and to what extent they
60
were at fault. However, more importantly, Plaintiff’s allegations that these white bus drivers
engaged in comparable conduct is questionable. Even affording Plaintiff’s Complaint the most
liberal of constructions, the Court is unable to find that it has pled a prima face claim of disparate
treatment based on Plaintiff’s race under Title VII, specifically the fourth element of that claim,
which requires an allegation of facts plausibly suggesting that Plaintiff “has at least minimal
support for the proposition that [Defendant] was motivated by discriminatory intent.” Littlejohn
v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). Assuming the factual allegations of
Plaintiff’s Complaint to be true, this is not a case in which Plaintiff points to a white co-worker
who was not fired after engaging in conduct that, while unknown, reasonably appears to have
been comparable to the conduct in which Plaintiff engaged. Rather, this is a case in which
Plaintiff points to three white co-workers who were not fired after engaging in specifically
identified conduct that clearly was of less seriousness than that of Plaintiff. Simply stated, the
Court cannot find that a bus driver who accidentally dropped a child off at an unauthorized stop
(a mere six-minute walk from the child’s authorized stop) while on-duty or accidentally fails to
sufficiently check a school bus for sleeping children while on-duty (offenses of omission) is
comparable to a bus driver who deliberately goes to a student’s home while off-duty (an offense
of commission), or at least sufficiently comparable to indicate discriminatory intent by Defendant
as a result of disparate treatment. See Raspardo, 770 F.3d at 126 (noting that “[i]n the context of
employee discipline . . . the plaintiff and the similarly situated employee must have engaged in
comparable conduct, that is, conduct of comparable seriousness”). Accordingly, Defendant’s
cross-motion to dismiss Plaintiff’s Title VII claim in her original Complaint is granted.
61
IV.
CONCLUSION
For the reasons stated above, Plaintiff’s motion seeking leave to file and serve an
Amended Complaint is denied in its entirety. The Court notes that, in addition to the reasons
stated above, Plaintiff has failed to comply with Local Rule 7.1(a)(4), which governs motions to
amend pleadings.15 The Court notes also that, on August 5, 2013, Plaintiff was provided with a
courtesy copy of both the District’s Local Rules of Practice and Pro Se Handbook. (Dkt. No. 4.)
In addition, for the reasons stated above, Defendant’s cross-motion seeking to dismiss Plaintiff’s
Complaint is granted.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for leave to file and serve an Amended Complaint
(Dkt. No. 25) is DENIED; it is further
ORDERED that Defendant’s cross-motion to dismiss Plaintiff’s Complaint (Dkt. No. 31)
is GRANTED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED in its entirety with
prejudice; and it is further
ORDERED that the Clerk of the Court shall enter judgment in favor of Defendant and
close this case.
Dated:
September 18, 2015
Syracuse, New York
_________________________________
Hon. Glenn T. Suddaby
Chief, U.S. District Judge
15
Specifically, Local Rule 7.1(a)(4) states that a motion to amend “must set forth
specifically the proposed amendments and identify the amendments in the proposed pleading,
either through the submission of a red-lined version of the original pleading or other equivalent
means.” N.D.N.Y. L.R.7.1(a)(4). Plaintiff failed to identify her proposed amendments through
either means.
62
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