Shein v. New York City Department of Education et al

Filing 28

OPINION AND ORDER.....The defendants October 1, 2015 motion to dismiss is granted in part. All of Sheins claims are dismissed except for her retaliation claim under the NYCHRL based on her January 2014 letter. The Court declines to exercise supplemental jurisdiction over this remaining claim. The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 2/18/2016) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
MAVIS SHEIN,
:
:
Plaintiff,
:
:
-v:
:
NEW YORK CITY DEPARTMENT OF EDUCATION :
and PATRICK BURNS, Individually and in :
his Official Capacity,
:
:
Defendants.
:
:
-------------------------------------- X

15cv4236 (DLC)
OPINION AND ORDER

APPEARANCES:
For the plaintiff:
Steven Anthony Morelli
The Law Office of Steven A. Morelli
990 Franklin Ave
Garden City, NY 11530
For the defendants:
Sean Robert Renaghan
New York City Law Department
100 Church Street
New York, NY 10007
DENISE COTE, District Judge:
This dispute arises out of disciplinary actions that
Patrick Burns (“Burns”) and the New York City Department of
Education (“NYCDOE”) took against Mavis Shein (“Shein”) when she
was a middle school teacher.

Shein alleges primarily that she

was subject to discriminatory treatment because of her religion
and retaliatory treatment after allegedly complaining of age
discrimination.

The defendants moved to dismiss on several

grounds, including failure to state a claim, the applicable
statutes of limitations, and collateral estoppel.

For the

reasons that follow, the motion to dismiss is granted with
respect to every claim except Shein’s retaliation claim under
city law.

The Court declines to exercise supplemental

jurisdiction over that claim.
Background
These facts are taken from the complaint and documents
integral to the complaint.

Shein is a Jewish woman in her mid-

fifties who has been a New York City public school teacher for
approximately 30 years.

She had tenure.

From 2000 to 2014,

Shein taught at the Robert A. Van Wyck Middle School.

Burns is

the principal at that school and was Shein’s supervisor; he is
also Irish Catholic.
Three Complaints Regarding Shein: January 2012 to April 2013
Burns received three complaints about Shein between January
2012 and April 2013.

Around January 24, 2012, Burns received a

complaint that Shein had called an assistant principal a “dumb
Catholic teacher.”

Burns conducted an allegedly deficient

investigation into this accusation.

Burns then removed Shein

from her English teaching assignment and made her a computer
literacy teacher in a basement classroom.
A second complaint against Shein was filed on March 5,
2013.

That complaint included allegations that Shein threw a
2

book at a student, said the student was not smart, told the
student he had no common sense, and injured the student by
taking a bracelet off his wrist.

Shein told Burns that the

complaints against her were falsified by students who sought to
get her fired.

As a result of the second complaint against her,

Shein received her first “U” rating of her career.
On April 16, 2013, Burns accused Shein of acting
unprofessionally towards a parent during a meeting.

Shein

claims she was surprised when a supervisor brought the parent in
for a meeting with her because she had requested that the parent
deal directly with her supervisor regarding her son’s conduct
issues.

Burns allegedly ignored her subsequent request to

resolve the situation amicably with the parent involved and told
Shein that she was an “embarrassment” to the school.
January 20, 2014 Letter
On January 20, 2014, Shein’s counsel wrote to Burns to
notify him of Shein’s allegations involving two instances of an
unsafe work environment.

The letter describes two instances in

which Shein was accused of physically harming students.

One was

the incident described above where she was accused of throwing a
book at a student, and the other involved a claim that she
slammed a door in a student’s face on May 24, 2013.

The letter

references the “U” rating she received at the end of the 20122013 academic year and indicates that she has filed several
3

grievances related to these events.

The letter accuses Burns of

setting Shein up “for failure” when he assigned her too many
students in connection with a computer teaching initiative.

The

letter further discusses an incident where a student “became
physically abusive” and expresses Shein’s concerns that Burns
did not follow proper procedures to ensure her safety.
Finally, the letter briefly addresses Burns’s treatment of
Shein personally.

It alleges that Burns has made “plainly

inappropriate statements,” including “references to [Shein’s]
age and other decisions based on financial considerations and
not safety first.”

Ultimately, the letter accuses Burns of

having an “unabashed disdain” for Shein.

There is no reference

in the letter to religion or religious discrimination.
After receiving this letter, the defendants allegedly began
a “concerted attack” against Shein in retaliation.

For example,

on February 11, 2014, an assistant principal was supposed to
attend a pre-observation conference with Shein.

Shein claims

that Burns lied when he said that his colleague had been in a
car accident in order to conduct the evaluation himself and
intimidate her.

Two weeks later, Burns conducted Shein’s yearly

formal observation.

After that observation, Shein was rated as

“ineffective.”

4

First Set of Disciplinary Charges
On February 28, 2014, Burns lodged a set of formal
administrative charges and specifications against Shein.

These

charges were based on the three complaints about Shein described
above that were made to Burns between January 24, 2012 and April
16, 2013.
On March 11, 2014, Burns removed Shein from her classroom
and reassigned her to administrative duties in an allegedly
dirty basement room.

Shein claims that the new office was full

of insects and vermin; it also had no outside telephone line,
wi-fi, or cell phone reception.

After Shein complained about

the office, she was placed in a staff office, where she claims
she was forced to sit at a children’s desk and face the wall
with her back to the door.

Burns also allegedly ordered Shein

not to talk with students.

Shein was then transferred a third

time to a lounge that was close enough to the men’s bathroom
that she could hear men relieving themselves.
Second Set of Disciplinary Charges
In June of 2014, a second set of charges was filed against
Shein. 1

Those charges included allegations that Shein was

ineffective during a formal observation on February 25, 2014.

This set of charges was consolidated with the first set and
adjudicated in the same formal disciplinary hearing.
1

5

Specifically, she was accused of failing to use Common Core
standards and neglecting to give feedback to students, among
other errors.

The second set of charges also included

allegations that she made inappropriate comments about students
to Burns during the post-observation conference of February 28.
Finally, the second set of charges accused Shein of interacting
with students between March 10 and May 22, 2014, when Burns had
instructed her to limit her duties to administrative work that
did not involve students.
Third Set of Disciplinary Charges
On December 19, 2014, Shein was served with a third set of
disciplinary charges; Shein believes that she was intentionally
targeted during Hanukkah because of her religion.

These charges

stemmed from incidents that occurred on May 24, 2013 and October
1, 2014.

The May 24 incident involved Shein allegedly slamming

a door in a student’s face and grabbing that student’s shirt.
The October 1 incident involved another teacher who accused
Shein of speaking inappropriately to her and calling her names
in Hebrew.

Shein does not speak Hebrew.

On October 17, 2014,

Shein was again removed from her placement and sent to a
regional office because of the allegations about inappropriate
comments to her colleague.

6

Two Formal Disciplinary Hearings
Two formal disciplinary hearings, conducted pursuant to NY
Educ. Law § 3020-a, resulted from these events.

On March 31,

2015, after hearing many days of testimony, a hearing officer
issued a decision on the first and second set of charges
discussed above.

The hearing officer found that Shein was

guilty of conduct underlying the March 5 and April 16, 2013
complaints against her.

Specifically, Shein was found guilty of

throwing a book at a student, ripping a bracelet off a student’s
wrist, making inappropriate comments in front of a parent, and
other more minor misconduct.

She was also found guilty of

ineffective teaching during a formal observation of February 25,
2014, and making some inappropriate comments during a postobservation conference of February 28, 2014.

The hearing

officer found that Shein was not guilty of making the January
2012 “dumb Catholic teacher” comment and that she did not have
impermissible contact with students between March 10 and May 22,
2014.
Shein was issued a $7,500 fine, which was garnished from
her paychecks for the remainder of the school year.

She was

given only a few months to pay the fine because she was expected
to retire by the end of the academic year.

According to the

complaint, this shows that Shein was subject to age
discrimination when she was asked to pay her fine faster than
7

younger teachers who were not eligible for retirement.

This

short garnishment schedule based on Shein’s anticipated
retirement is the only claimed instance of age discrimination in
her complaint.
On April 27, 2015, a second hearing officer issued his
decision on the third set of disciplinary charges.

He found

Shein guilty of making inappropriate comments to another teacher
on October 1, 2014, and wrote that the appropriate penalty was a
written reprimand.

He found that Shein was not guilty of

slamming a door in a student’s face, making inappropriate
comments to students, and other misconduct associated with the
alleged incident of May 24, 2013.
Shein claims that employees who she believes are Christian
received more favorable treatment than she did during
investigations that Burns conducted for misconduct and corporal
punishment.

She names five teachers who were not removed from

their classrooms during Burns’s investigations.

She asserts

that Burns did not reassign those teachers to other classrooms
during their investigations and that the teachers continued to
receive satisfactory performance evaluations.

Shein further

contends that a Christian colleague who was removed from her
classroom during a pending investigation was placed in a more
appropriate reassignment.

Shein does not allege that the

complaints against those teachers were substantiated, that
8

formal charges were filed against them, that they were subject
to disciplinary hearings, or that they were found guilty of
misconduct.
Shein brings several causes of action based on these
events.

They include: (1) religious discrimination under the

Fourteenth Amendment, 42 U.S.C. § 1983, and Title VII, and in
violation of New York State Human Rights Law (“NYSHRL”) § 290
and the New York City Human Rights Law (“NYCHRL”); (2)
retaliation in violation of the First and Fourteenth Amendments
and pursuant to § 1983, Title VII, the NYSHRL, and the NYCHRL;
(3) age discrimination under the Fourteenth Amendment and §
1983; and (4) deprivation of procedural due process under the
Fourteenth Amendment and § 1983.
Shein filed the original complaint on June 2, 2015.
filed an amended complaint on August 7.

Shein

The August 7 amended

complaint did not contain any specific, concrete allegations
that similarly situated, non-Jewish teachers were treated more
favorably than Shein.
dismiss the complaint.

On August 21, the defendants moved to
One of the arguments in that motion was

that Shein had not identified any similarly situated, non-Jewish
colleagues who were treated more favorably than Shein.

This

failure, the defendants claimed, rendered her contention that
her treatment was motivated by discriminatory animus
implausible.
9

The plaintiff was given an opportunity to respond to the
August 21 motion to dismiss by amending her complaint a second
time.

On September 17, the plaintiff filed a second amended

complaint.

Shein added the few paragraphs discussed above that

identify purportedly similarly situated, Christian colleagues
who were treated more favorably than Shein during the
investigations into their misconduct.

The defendants moved to

dismiss the second amended complaint on October 1.

The motion

to dismiss became fully submitted on November 13.
Discussion
When deciding a motion to dismiss under Rule 12(b), Fed. R.
Civ. P., a court must “accept all allegations in the complaint
as true and draw all inferences in the non-moving party’s
favor.”

LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d

471, 475 (2d Cir. 2009).

“To survive a motion to dismiss under

Rule 12(b)(6), a complaint must allege sufficient facts which,
taken as true, state a plausible claim for relief.”

Keiler v.

Harlequin Enters. Ltd., 751 F.3d 64, 68 (2d Cir. 2014); Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint must contain
sufficient factual matter, accepted as true, to state a claim
for relief that is plausible on its face.”).

“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.”
10

Parkcentral

Global Hub Ltd. v. Porsche Auto. Holdings SE, 763 F.3d 198, 208
(2d Cir. 2014) (citation omitted).
In deciding a motion to dismiss, documents outside the
pleadings may be considered in certain circumstances.

For

example, documents “that the plaintiffs either possessed or knew
about and upon which they relied in bringing suit” may be
considered.

Smith v. Hogan, 794 F.3d 249, 254 (2d Cir. 2015)

(citation omitted).

Moreover, “a court may consider an

‘integral’ document where the complaint relies heavily upon its
terms and effect.”

Id. (citation omitted).

Shein’s January 20,

2014 letter and the decisions of the hearing officers, which
were attached to the defendants’ motion to dismiss, are
appropriate to consider at this stage.

Shein makes allegations

integrally related to each document, including representations
about their contents.

Since her attorney composed the January

20, 2014 letter, she was on notice about its contents, and the
letter is the basis for her retaliation claim.
I.

Religious Discrimination Claims under Title VII and 42
U.S.C. § 1983
Title VII requires “a plaintiff asserting a discrimination

claim to allege two elements: (1) the employer discriminated
against him (2) because of his race, color, religion, sex, or
national origin.”

Vega v. Hempstead Union Free Sch. Dist., 801

11

F.3d 72, 85 (2d Cir. 2015). 2

In other words, at the pleadings

stage a plaintiff “must plausibly allege that (1) the employer
took adverse action against him and (2) his race, color,
religion, sex, or national origin was a motivating factor in the
employment decision.”

Id. at 86.

An adverse employment action exists if an employee “endures
a materially adverse change in the terms and conditions of
employment.”

Id. at 85 (citation omitted).

This must be “more

disruptive than a mere inconvenience or an alteration of job
responsibilities,” but it can include “significantly diminished
material responsibilities, or other indices unique to a
particular situation.”

Id. (citation omitted).

“As to the

second element, an action is ‘because of’ a plaintiff’s . . .
religion . . . where it was a ‘substantial’ or ‘motivating’
factor contributing to the employer’s decision to take the
action.”

Id. (citation omitted).

Title VII discrimination

claims do not require but-for causation.

Id. at 86.

In order

to survive a motion to dismiss, a plaintiff must “only plausibly

To survive a motion to dismiss, a plaintiff alleging
discrimination does not need to plead a prima facie case
satisfying all four elements of the McDonnell Douglas framework,
which include: “(1) she is a member of a protected class; (2)
she is qualified for her position; (3) she suffered an adverse
employment action; and (4) the circumstances give rise to an
inference of discrimination.” Vega, 801 F.3d at 83 (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
2

12

allege facts that provide at least minimal support for the
proposition that the employer was motivated by discriminatory
intent.”

Id. at 86-87 (citation omitted).

A plaintiff may do

so by “alleging facts that directly show discrimination or facts
that indirectly show discrimination by giving rise to a
plausible inference of discrimination.”

Id. at 87.

While

“detailed factual allegations are not required,” and the factual
allegations in the complaint must be assumed to be true, a
formulaic recitation does not suffice.

Id. at 86 (citation

omitted).
Section 1983 provides a cause of action for damages against
“[e]very person who, under color of any statute . . . of any
State . . . subjects, or causes to be subjected, any citizen . .
. to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws.”

“[P]ublic employees

aggrieved by discrimination in the terms of their employment may
bring suit under 42 U.S.C. § 1983 against any responsible
persons acting under color of state law.”

Vega, 801 F.3d at 87.

Once the plaintiff meets the “color of law” requirement, her
“equal protection claim parallels [her] Title VII claim.”
at 88 (citation omitted).

Id.

The only difference is that a § 1983

claim “can be brought against an individual.”

Id.

Shein appears to assert that Burns discriminated against
her based on her religion in three ways.
13

Because of her

religion, Burns filed three sets of formal disciplinary charges
against her between February and December of 2014; gave her a
negative performance review in February of 2014; and
involuntarily removed her from teaching and assigned her to
unsuitable locations beginning in March of 2014.
Shein has not pled sufficient facts to support her claims
of religious discrimination under Title VII and § 1983.

This is

true even though Shein has identified acts taken against her
which are sufficiently severe to constitute adverse actions.
These include removing her from teaching, assigning her to spend
time in unsanitary locations, and filing formal disciplinary
charges against her.

She has failed, however, to plead a

plausible claim that Burns acted with religious animus when
taking these steps.
Shein has not pointed to any direct evidence that Burns
harbored a discriminatory bias.

There is no allegation here

that Burns ever uttered a slur or derogatory statement regarding
Shein’s religion or the Jewish faith.

Each of the complaints

brought against Shein in 2012 and early 2013 was initiated by a
third party.

In ruling on the formal administrative charges

filed against Shein in 2014, two independent hearing officers
found Shein guilty of serious misconduct associated with
incidents spanning from March 5, 2013 through October 1, 2014.
Shein’s January 2014 letter of complaint made no assertion of
14

religious discrimination.

To support a claim of discriminatory

bias, Shein relies exclusively on her identification of five
individual comparators who she contends were treated more
favorably by Burns in two ways: they were not removed from their
classrooms pending disciplinary investigations and they
continued to receive satisfactory performance evaluations.
Shein identifies a sixth Christian colleague who was removed
from her classroom pending her investigation but, according to
Shein, was placed in a more appropriate assignment than she was.
Where a plaintiff relies on evidence of disparate treatment
to support her discrimination claim, she must “give plausible
support to a minimal inference of discriminatory motivation.”
Vega, 801 F.3d at 84 (citation omitted).

“[A]dverse actions

taken against employees who are not similarly situated cannot
establish an inference of discrimination.”

Littlejohn v. City

of New York, 795 F.3d 297, 312 (2d Cir. 2015).

“A similarly

situated employee is one similarly situated in all material
respects to the plaintiff.”

Raspardo v. Carlone, 770 F.3d 97,

126 (2d Cir. 2014) (citation omitted).

“In the context of

employee discipline . . . the plaintiff and the similarly
situated employee must have engaged in comparable conduct, that
is, conduct of comparable seriousness.”

Id. (citation omitted).

Ultimately, “the plaintiff’s and comparator’s circumstances must
bear a reasonably close resemblance, but need not be identical.”
15

Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014)
(citation omitted).
Shein’s allegations are insufficient to find a plausible
claim of discriminatory bias under these standards.

Although

she names coworkers, she has not plausibly alleged that they
were similarly situated to her in terms of either her removal
from the classroom or her 2014 negative performance evaluation.
While Burns removed Shein from the classroom after formal
disciplinary charges were lodged against her, Shein does not
assert that such charges were ever filed against any of the
comparators, much less that any charges against them resulted in
findings of misconduct and the imposition of penalties.
Conversely, like her comparators, Shein was not removed from the
classroom while the complaints about her conduct made by
parents, students, and fellow teachers were investigated.
Similarly, Shein has not shown that the experience of the
comparators in terms of their evaluations differed in any
meaningful way from Shein’s.

Shein complains about her February

2014 evaluation, but the hearing officer found her guilty in
connection with that evaluation of both ineffective teaching and
of making inappropriate comments in the post-observation
conference.

Shein has not pled any facts to suggest that her

comparators had any relevant experience in this regard.
Although she need not plead a prima facie case of religious
16

discrimination, Shein must plausibly plead discriminatory
animus.
II.

This she has not done.
Age Discrimination

Shein brings a cause of action for age discrimination in
violation of the Equal Protection Clause of the Fourteenth
Amendment and pursuant to 42 U.S.C. § 1983.

She does not plead

her cause of action under the Age Discrimination in Employment
Act (“ADEA”).

“To state a claim for an equal protection

violation, [Shein] must allege that a government actor
intentionally discriminated against [her] on the basis of race,
national origin or gender.”
42, 48 (2d Cir. 1999).

Hayden v. Cty. of Nassau, 180 F.3d

Age is not a protected class under the

Fourteenth Amendment’s Equal Protection Clause.

See Kimel v.

Florida Bd. of Regents, 528 U.S. 62, 83 (2000) (holding that the
ADEA does not abrogate state sovereign immunity because it is
broader than the rational basis test that applies to claimed age
discrimination).
Shein’s age discrimination claim is dismissed.

The

imposition of a compressed schedule for the payment of a penalty
is the only claimed instance of age discrimination in Shein’s
complaint.

A compressed schedule for garnishing Shein’s

paycheck -- imposed because of her anticipated retirement -- is
not sufficient to plead a claim of age discrimination against

17

the defendants. 3

Apart from any other deficiencies in the

pleading of this claim, it was the hearing officer, not the
defendants, who set the compressed garnishment schedule for her
fine.
III. Federal Retaliation Claims
Shein brings retaliation claims under both the First
Amendment and Title VII.

To state a First Amendment retaliation

claim, a plaintiff must allege “(1) that the speech or conduct
at issue was protected, (2) that the defendant took adverse
action against the plaintiff, and (3) that there was a causal
connection between the protected speech and the adverse action.”
Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015) (citation
omitted).

“As relevant here, the First Amendment protects

speech uttered by an employee in his or her capacity as a
citizen regarding a matter of public concern.”
Suffolk, 776 F.3d 114, 118 (2d Cir. 2015).

Smith v. Cty. of

“[W]hether an

employee’s speech addresses a matter of public concern must be
Indeed, it is an open question whether a § 1983 cause of action
is available at all for age discrimination claims. The vast
majority of circuits that have considered this question have
found that the ADEA’s remedial scheme evinces a Congressional
intent to displace § 1983 as a cause of action for age
discrimination. See Levin v. Madigan, 692 F.3d 607, 617 (7th
Cir. 2012) (holding that the ADEA does not preclude a § 1983
action for age discrimination, but recognizing that it is the
only circuit to so find); Hildebrand v. Allegheny Cty., 757 F.3d
99, 108 (3d Cir. 2014), cert. denied sub nom. Hildebrand v.
Allegheny Cty., Pa., 135 S. Ct. 1398 (2015) (finding that the
ADEA precludes a remedy under § 1983).
3

18

determined by the content, form, and context of a given
statement, as revealed by the whole record.”

Golodner v.

Berliner, 770 F.3d 196, 202 (2d Cir. 2014) (citation omitted).
“The Supreme Court has defined a matter of public concern as one
that relates to any matter of political, social, or other
concern to the community.”

Sousa v. Roque, 578 F.3d 164, 170

(2d Cir. 2009) (citation omitted).

“[S]peech on a purely

private matter, such as an employee’s dissatisfaction with the
conditions of his employment, does not pertain to a matter of
public concern.”

Id. at 174 (citation omitted).

To state a claim for retaliation under Title VII, “the
plaintiff must plausibly allege that: (1) defendants
discriminated -- or took an adverse employment action -- against
[her], (2) because [s]he has opposed any unlawful employment
practice.”

Vega, 801 F.3d at 89-90 (citation omitted).

The

retaliation must be in response to a complaint about “any
practice made an unlawful employment practice by this
subchapter.”

42 U.S.C. § 2000e-3(a) (emphasis added).

In other

words, “Title VII forbids an employer to retaliate against an
employee for . . . complaining of employment discrimination
prohibited by Title VII.”

Kessler v. Westchester Cty. Dep't of

Soc. Servs., 461 F.3d 199, 205 (2d Cir. 2006).

Title VII

protects against discrimination by employers based on “race,

19

color, religion, sex, or national origin.”

42 U.S.C. § 2000e-

2(a)(1)-(2).
An adverse employment action for a retaliation claim is one
that “could well dissuade a reasonable worker from making or
supporting a charge of discrimination.”
(citation omitted).

Vega, 801 F.3d at 90

“As for causation, a plaintiff must

plausibly plead a connection between the act and his engagement
in protected activity.”

Id.

A plaintiff can show “retaliatory

purpose . . . indirectly by timing.”

Id. (collecting cases).

Unlike discrimination claims under Title VII, “the plaintiff
must plausibly allege that the retaliation was a but-for cause
of the employer’s adverse action.”

Id.; Univ. of Texas Sw. Med.

Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013).

The elements are

the same for a retaliation claim under § 1983, except that §
1983 requires state action.

Vega, 801 F.3d at 90.

Shein’s First Amendment retaliation claim fails because she
did not speak as a citizen on a matter of public concern.
Rather, the letter was written in her private capacity to
complain of her treatment in the workplace.

The plaintiff’s

argument that it was public speech with a personal motivation is
unavailing.

The letter only addressed Shein’s personal issues

with her employment.
Shein’s Title VII retaliation claim also fails because the
only discrimination to which the January 2014 letter arguably
20

refers is age discrimination.

Age discrimination is not

prohibited by Title VII, and therefore Shein cannot allege
retaliation under Title VII based on her complaints about
possible age discrimination.

The rest of the letter concerns

workplace safety and other issues related to Shein’s
supervision; it does not reference discrimination based on her
religion or another characteristic protected under Title VII.
Shein does not plead a cause of action for retaliation under the
ADEA.
IV.

Procedural Due Process Claim Under 42 U.S.C. § 1983

The Due Process Clause of the Fourteenth Amendment provides
that a State shall not “deprive any person of life, liberty, or
property, without due process of law.”

“A Fourteenth Amendment

due process claim entails a two-part inquiry to first determine
whether plaintiff was deprived of a protected interest, and, if
so, what process was his due.”

Rosu v. City of New York, 742

F.3d 523, 526 (2d Cir. 2014) (citation omitted).

“[A] tenured

public employee is entitled to a hearing prior to being
terminated.”

Ciambriello v. Cty. of Nassau, 292 F.3d 307, 319

(2d Cir. 2002) (citation omitted).

Due process also requires

notice and the opportunity to be heard before demotion.

Id. at

321.
The plaintiff’s procedural due process claim is dismissed.
She does not allege that the procedures at the § 3020-a
21

disciplinary hearings themselves deprived her of due process
before being subject to discipline.

Instead, she claims that

Burns and the NYCDOE conducted inadequate investigations and
served Shein with charges that the defendants knew or should
have known were meritless.

Indeed, the plaintiff agrees that

“generally speaking, the disciplinary procedures outlined in
Education Law § 3020-a satisfy the requirements under the Due
Process Clause.”
V.

State Law Claims
Shein brings the following state law claims under the

NYSHRL and NYCHRL: (1) religious discrimination; and (2)
retaliation for the January 2014 letter arguably referring to
age discrimination.

As discussed below, the state and city law

claim for religious discrimination are dismissed.

Shein’s

retaliation claim under the NYSHRL is also dismissed.

The Court

declines to exercise supplemental jurisdiction over NYCHRL
retaliation claim because it is the only claim that remains in
this suit.
Supplemental jurisdiction exists over state law claims
“that are so related to claims in the action within [the
Court’s] original jurisdiction that they form part of the same
case or controversy under Article III of the United States
Constitution,” 28 U.S.C. § 1367(a).

In other words, federal

courts may assert supplemental jurisdiction over claims that
22

“derive from a common nucleus of operative fact.”

Delaney v.

Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014) (citation
omitted).

To decide whether to exercise supplemental

jurisdiction, the court must weigh “the traditional ‘values of
judicial economy, convenience, fairness, and comity.’”

Kolari

v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)
(quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
(1988)).

Here, convenience and judicial economy weigh heavily

in favor of resolving the straightforward claims that can be
resolved as part of this motion to dismiss.
Discrimination and retaliation claims under the NYSHRL and
NYCHRL are analyzed under different frameworks.

NYSHRL claims

are analyzed under the same rubric as their federal
counterparts.

See Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491

(2d Cir. 2010) (race discrimination); Mandell v. Cnty. of
Suffolk, 316 F.3d 368, 377 (2d Cir. 2003) (religious
discrimination).

NYCHRL claims are analyzed under broader

standards.
The NYSHRL prohibits an employer from discriminating
against an employee “because of an individual’s age [or] creed.”
N.Y. Exec. Law § 296(1)(a).

Moreover, the NYSHRL provides that

it is unlawful for an employer “to retaliate or discriminate
against any person because he or she has opposed any practices
forbidden under this article.”

Id. § 296(7).
23

Because the basis

of Shein’s retaliation claim is a letter referencing her age,
the appropriate federal statute to which to compare Shein’s
cause of action for retaliation under the NYSHRL is the ADEA.
The framework for analyzing a claim of retaliation under Title
VII and the ADEA is the same.

Bucalo v. Shelter Island Union

Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012).

As discussed

above, an employee alleging retaliation under the NYSHRL
therefore must plausibly plead that participation in a protected
activity (opposing discrimination) was a but-for cause of an
adverse employment action.
Ct. at 2523.

Vega, 801 F.3d at 90; Nassar, 133 S.

This requires a plaintiff to plead that “the

adverse action would not have occurred in the absence of the
retaliatory motive.”

Vega, 801 F.3d at 91 (citation omitted).

NYCHRL discrimination and retaliation claims must be
analyzed “separately and independently from any federal and
state law claims, construing [the NYCHRL's] provisions broadly
in favor of discrimination plaintiffs, to the extent that such a
construction is reasonably possible.”

Ya-Chen Chen v. City

Univ. of New York, 805 F.3d 59, 75 (2d Cir. 2015) (citation
omitted).

“[I]nterpretations of state and federal civil rights

statutes can serve only as a floor below which the NYCHRL cannot
fall.”

Id. (citation omitted); Williams v. New York Hous. Auth.

872 N.Y.S.2d 27, 33 (1st Dep’t 2009) (emphasizing that the
NYCHRL’s standard for a successful retaliation claim is broader
24

than Title VII and therefore renders a greater range of
retaliatory conduct actionable than federal law).

“[E]ven if

the challenged conduct is not actionable under federal and state
law, federal courts must consider separately whether it is
actionable under the broader New York City standards.”

Velazco

v. Columbus Citizens Found., 778 F.3d 409, 411 (2d Cir. 2015)
(citation omitted).
Although the standard for pleading and proving
discrimination under the NYCHRL is more permissive, a plaintiff
still must adequately allege that “the conduct is caused at
least in part by discriminatory . . . motive.”

Mihalik v.

Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 113 (2d
Cir. 2013); see Llanos v. City of New York, 10 N.Y.S.3d 870 (1st
Dep’t 2015) (a “plaintiff’s failure to adequately plead
discriminatory animus is fatal to her claim of” discrimination
under the NYCHRL).

Courts consider the “totality of the

circumstances” and the “overall context in which the challenged
conduct occurs” in order to discern whether a cause of action is
available under the NYCHRL.

Mihalik, 715 F.3d at 113.

Shein’s Title VII religious discrimination claim is
dismissed.

Therefore, her NYSHRL claim for religious

discrimination is also dismissed because it parallels the
federal law claim.

Moreover, her NYCHRL claim for religious

discrimination must be dismissed.
25

To plead the existence of

discriminatory animus, Shein relies solely on her descriptions
of the experiences of her identified comparators.

From her list

of comparators, Shein asserts there is a basis from which to
infer that she was treated in a discriminatory manner when given
an ineffective rating in February 2014, and when removed from
the classroom in March 2014.

But, Shein has not pleaded that

these coworkers had any similar experiences that were relevant
to Shein’s.

Asserting that each of these comparators was also

investigated for misconduct and not removed from the classroom
while being investigated is simply not enough.

Like her

comparators, Shein was not removed from the classroom while the
various charges against her were being investigated; Shein was
only removed after formal disciplinary charges were filed.
Shein has not pointed to any comparator who was allowed to
remain in the classroom after formal disciplinary charges were
filed against the teacher.

As for the negative performance

evaluation, an independent hearing officer found Shein guilty of
deficient teaching in connection with the February 2014
observation; Shein makes no assertion that a hearing officer
found any of her coworkers guilty of any instance of ineffective
teaching.

Although the standard of the NYCHRL is broader than

the state and federal law standards, and therefore must be
analyzed separately, Shein has not pled a plausible claim of

26

discriminatory intent based on her religion even under that more
remedial statute.
Shein has also not pled sufficient facts to make her NYSHRL
retaliation claim plausible.

She has not plausibly pleaded that

her arguable complaint of age discrimination in the January 2014
letter was a but-for cause of the defendants’ adverse actions
against her.

The Supreme Court recently held that a traditional

application of but-for causation governs retaliation claims
under Title VII and the ADEA.

Thus, Shein would have to plead

plausibly that “the harm would not have occurred in the absence
of” her January 2014 letter.

Nassar, 133 S. Ct. at 2525

(citation omitted).
The retaliatory actions of which she complains are the
assignment of an ineffective rating in February 2014, the filing
of formal disciplinary charges in February 2014, and her removal
from the classroom in March 2014.

Shein relies on the timing of

each of these actions, coming as they do on the heels of her
January 2014 letter, as the sole basis from which to infer
retaliatory intent and but-for causation.
This she cannot do for several reasons.

First, Shein

admits in her complaint that the investigation of her conduct
that led to the filing of the formal disciplinary charges
against her in February and her removal from the classroom after
that filing began months before her attorney sent the January
27

2014 letter making its passing reference to remarks about her
age.

Indeed, the complaint alleges that Burns began his

attempts to fire Shein as early as January 2012.

Thus, where,

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

Slattery v. Swiss Reinsurance Am.

Corp., 248 F.3d 87, 95 (2d Cir. 2001), as amended (June 6,
2001).
That leaves the ineffective rating, given in February 2014,
as the sole basis from which to infer that the defendants
retaliated against Shein because she had purportedly complained
of age discrimination in the January 2014 letter.

Because a

hearing officer concluded that Shein had indeed engaged in
ineffective teaching in February and that the rating was
warranted, Shein has also failed to plead a plausible claim of
but-for causation in this regard.
That leaves just one claim in this lawsuit.

It is the

claim brought under the NYCHRL for retaliation based on the
alleged complaint about age discrimination in the January 2014
letter.

The Court declines to exercise supplemental

jurisdiction over the NYCHRL retaliation claim, which must be
analyzed under the broader standards required by the NYCHRL.

28

Conclusion
The defendants’ October 1, 2015 motion to dismiss is
granted in part.

All of Shein’s claims are dismissed except for

her retaliation claim under the NYCHRL based on her January 2014
letter.

The Court declines to exercise supplemental

jurisdiction over this remaining claim.

The Clerk of Court

shall close the case.

Dated:

New York, New York
February 18, 2016
____________________________
DENISE COTE
United States District Judge

29