United States Of America v. New York City Department Of Education

Filing 37

REPORT AND RECOMMENDATION re: (23 in 1:16-cv-04844-LAK-JCF) MOTION to Dismiss . filed by Minerva Zanca, New York City Department of Education, Juan Mendez, (17 in 1:16-cv-04844-LAK-JCF) Amended Complaint, filed by Lisa-Erika James, Heather Hightower. The defendants move to dismiss the Amended Complaint in part. (As further set forth in this Order.) For the reasons discussed above, the defendants' motion to dismiss the Amended Complaint, in part, should be granted in the following respects: (1) the plaintiffs' claim against the DOE under 42 U.S.C. § 1981 should be dismissed; (2) the plaintiffs' Title VII claims should be barred to the extent that they are based on conduct that occurred more than 300 da ys before they filed their EEOC charges; (3) the plaintiffs' NYSHRL and NYCHRL claims against the DOE and Mr. Mendez should be dismissed; and (4) Ms. James' constructive discharge claim should be dismissed without prejudice to replead a cla im of constructive involuntary transfer. The defendants' motion should be denied in all other respects. Objections to R&R due by 2/14/2017 (Signed by Magistrate Judge James C. Francis on 1/31/2017) Copies Sent By Chambers Filed In Associated Cases: 1:16-cv-04291-LAK-JCF, 1:16-cv-04844-LAK-JCF(cf)

the below, I recommend that their motion be granted in part and
denied in part.
Background
This

case

involves

allegations

that

Minerva

Zanca,

the

principal of Pan American International High School (“PAIHS”),
discriminated against African-American teachers at the school.
(Amended Complaint (“Amend. Compl.”), ¶¶ 13, 24).
hired as the principal of PAIHS in August 2012.
¶ 22).

Ms. Zanca was
(Amend. Compl.,

Ms. James and Ms. Hightower were two of three African-

American teachers employed at PAIHS during the 2012-2013 school
year.

(Amend. Compl., ¶¶ 9, 19, 23, 47-48).

Mr. Mendez was the

Superintendent of High Schools for District 28, which gave him
supervisory authority over Ms. James and Ms. Hightower.

(Amend.

Compl., ¶ 15-16).
Ms. Hightower was hired as a science teacher at PAIHS in the
fall of 2010.
satisfactory

(Amend. Compl., ¶ 19).
performance

ratings

She consistently received

before

Ms.

Zanca

was

hired.

(Amend. Compl., ¶ 21). During the 2012-2013 school year, Ms. Zanca
and Anthony Riccardo, the assistant principal at PAIHS, gave Ms.
Hightower several unsatisfactory lesson ratings.
¶¶ 28, 40).

(Amend. Compl.,

Before observing their lessons, Ms. Zanca told Mr.

Riccardo that she planned to give Ms. Hightower and John Flanagan,
another African-American teacher at PAIHS, unsatisfactory ratings.
(Amend. Compl., ¶ 29).

Ms. Hightower and Mr. Flanagan were both
2

untenured, meaning an unsatisfactory rating for the academic year
could justify terminating their employment with the DOE.
Compl., ¶¶ 23, 27).

(Amend.

Ms. Zanca told Mr. Riccardo that four

unsatisfactory lesson ratings was “the magic number” to have a
teacher fired.

(Amend. Compl., ¶ 29).

In a November 13, 2012, meeting with Ms. Zanca and Mr.
Riccardo, Ms. Hightower was told that she would be required to
meet with Mr. Riccardo to improve her teaching skills.
Compl., ¶ 35).

(Amend.

After Ms. Hightower left the meeting, Ms. Zanca

told Mr. Riccardo, “You better not make her a better teacher.”
(Amend. Compl., ¶ 35).

Ms. Zanca also made racially insensitive

comments about Ms. Hightower and Mr. Flanagan.

She told Mr.

Riccardo that Ms. Hightower “looked like a gorilla in a sweater,”
and asked, “What is with [her] fucking nappy hair?”
Compl., ¶¶ 36, 38).

(Amend.

She also made multiple comments about the

appearance of Mr. Flanagan’s lips.

(Amend. Compl., ¶¶ 37, 39).

Ms. Zanca and Mr. Riccardo continued to issue Ms. Hightower
unsatisfactory lesson ratings through the winter and spring of
2013.

(Amend. Compl., ¶ 40).

In April 2013, Mr. Riccardo gave

Ms. Hightower a satisfactory lesson rating, after which Ms. Zanca
accused Mr. Riccardo of “sabotaging her plan” and instructed school
safety officers to remove him from the building.
¶ 41).

(Amend. Compl.,

In June 2013, Ms. Zanca gave Ms. Hightower and Mr. Flanagan

unsatisfactory ratings for the 2012-2013 academic year.
3

(Amend.

Compl., ¶ 42).

They were the only two teachers out of twenty-

seven at PAIHS to receive an unsatisfactory rating for the year.
(Amend. Compl., ¶¶ 23, 42).

In July 2013, Ms. Hightower and Mr.

Flanagan were discontinued from their employment with the DOE
because of those ratings.

(Amend. Compl., ¶ 43).

Ms. James began working as a teacher for the DOE in the fall
of 2003.

(Amend. Compl., ¶ 44).

She was hired by PAIHS in August

2011 to establish a theater program at the school. (Amend. Compl.,
¶ 47).

In addition to teaching daily theater classes, her job

duties included producing and directing two plays and four inhouse class presentations each year.

(Amend. Compl., ¶ 48).

Unlike Ms. Hightower and Mr. Flanagan, Ms. James had tenure,
meaning she could not be terminated for unsatisfactory ratings
alone.

(Amend.

Compl.,

¶

51).

Rather

than

giving

her

unsatisfactory ratings, Ms. Zanca sought to undermine her theater
program.
On February 12, 2013, PAIHS students were scheduled to perform
their

first

College.

theater

production

of

(Amend. Compl., ¶ 53).

the

academic

year

at

Bard

Hours before they were scheduled

to go on stage, Ms. Zanca’s secretary informed Ms. James that the
school

would

not

pay

for

“vital

costs”

associated

with

the

production, including compensation for the light board operator,
sound board operator, and photographer.

(Amend. Compl., ¶ 53).

Ms. Zanca refused to speak with Ms. James directly about the
4

refusal to pay, and Ms. James decided to pay the costs herself to
avoid canceling the show.

(Amend. Compl., ¶ 53).

After the

February production, Ms. Zanca informed Ms. James that the school
could not pay the overtime hours needed to hold after-school
rehearsals for the spring production even though the funds were
already allocated.

(Amend. Compl., ¶ 57).

was canceled as a result.

The spring production

(Amend. Compl., ¶ 57).

In March 2013,

a PAIHS parent informed Ms. James that Ms. Zanca had disparaged
Ms. James’ theater program at a School Leadership Team meeting and
accused her of spending funds without authorization (Ms. Zanca had
in fact authorized the spending).

(Amend. Compl., ¶ 56).

In June 2013, Ms. Hightower, Ms. James, and Mr. Flanagan filed
complaints

against

Ms.

Opportunity (“OEO”).

Zanca

with

the

DOE’s

(Amend. Compl., ¶ 62).

Office

of

Equal

In retaliation for

the complaints, Ms. Zanca instructed school safety officers to bar
them from school premises during the summer of 2013, even though
Ms. James was still employed by PAIHS.

(Amend. Compl., ¶ 63).

Ms. James was advised by her physician to take a two-week
leave of absence because of stress caused by Ms. Zanca’s conduct.
(Amend. Compl., ¶ 71).

After her leave of absence, she sought a

transfer to a different school within the DOE.
74).

(Amend. Compl., ¶

In the fall of 2013, she found a position at the Manhattan

Theatre Lab High School (“Manhattan Lab”), a school that was
scheduled to close in 2015.

(Amend. Compl., ¶ 76).
5

This led her

to be designated as an “excess employee” when Manhattan Lab was
closed.

(Amend. Compl., ¶ 76).

Ms. James no longer works for the

DOE but “may still be” on their payroll.

(Amend. Compl., ¶ 77).

No African-American teachers remained at PAIHS after Ms. James’
transfer

and

Ms.

Hightower’s

and

Mr.

Flanagan’s

termination.

(Amend. Compl., ¶ 68).
The plaintiffs filed charges with the United States Equal
Opportunity Employment (the “EEOC”) in or around August 2013.
(Amend. Compl., ¶ 5).

The EEOC found probable cause to believe

that the DOE engaged in discriminatory conduct and referred the
charges to the United States Department of Justice (the “DOJ”).
(Amend. Compl., ¶ 6).

On June 9, 2016, the DOJ filed a lawsuit

against the DOE in connection with the discriminatory conduct
alleged by the plaintiffs.

(Amend. Compl., ¶ 7).

The plaintiffs

filed this action on June 22, 2016, and on October 13, 2016, it
was

consolidated

with

the

DOJ’s

lawsuit

along

lawsuits filed by Mr. Flanagan and Mr. Riccardo.

with

separate

(Order dated

Oct. 13, 2016, at 2).
On September 9, 2016, the defendants moved to dismiss the
Complaint in part, and on September 26, 2016, the plaintiffs filed
an Amended Complaint. On October 24, 2016, the defendants answered
and moved to dismiss the Amended Complaint in part on the following

6

grounds: 1 (1) the plaintiffs’ claim against the DOE under 42 U.S.C.
§ 1981 fails to state a claim for municipal liability; (2) The
plaintiffs’

Title

VII

claims

are

barred

by

the

statute

of

limitations to the extent that they are based on conduct that
occurred more than 300 days before the plaintiffs filed their EEOC
charges; (3) the plaintiffs’ NYSHRL and NYCHRL claims against the
DOE and Mr. Mendez are barred by their failure to file a notice of
claim and by a one-year statute of limitations; (4) the plaintiffs’
NYSHRL and NYCHRL claims against Ms. Zanca that are based on
conduct that occurred before June 22, 2013, are barred by a threeyear statute of limitations; and (5) Ms. James’ constructive
discharge claim should be dismissed because she remains employed
with the DOE.

(Defendants’ Memorandum of Law in Support of Motion

1

The Amended Complaint appears to be responsive to two of
the defendants’ claims in their September 9 motion to dismiss the
original Complaint. First, the defendants had moved to dismiss
the plaintiffs’ Title VII claims against the DOE and Mr. Mendez on
the ground that Title VII claims may not be brought against
individuals. (Defendants’ Memorandum of Law in Support of Motion
to Dismiss the Complaint, in Part dated Sept. 9, 2016 (“Def. 9/9/16
Memo.”), at 10).
The Amended Complaint withdrew those claims.
(Amend. Compl., ¶¶ 90-95; Complaint, ¶¶ 84-89).
Second, the
defendants had moved to dismiss the plaintiffs’ Title VII claims
because they had failed to obtain right-to-sue letters.
(Def.
9/9/16 Memo. at 10).
The Amended Complaint explained that the
plaintiffs could not obtain right-to-sue letters because of the
DOJ’s investigation and lawsuit.
(Amend. Compl., ¶ 8).
The
defendants withdrew both of those grounds for dismissal in their
October 24 motion to dismiss the Amended Complaint. The grounds
for dismissal raised in the September 9 motion and October 24
motion are otherwise the same.
7

to Dismiss the Complaint, in Part dated Oct. 24, 2016, (“Def.
10/24/16 Memo.”) at 3).
Discussion
A.
To

Legal Standard
survive

a

motion

to

dismiss

under

Rule

12(b)(6),

“a

complaint must contain sufficient factual matter . . . to ‘state
a claim to relief that is plausible on its face.’”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

The court’s charge in ruling

on a 12(b)(6) motion to dismiss “is merely to assess the legal
feasibility of the complaint, not to assay the weight of the
evidence which might be offered in support thereof.”

GVA Market

Neutral Master Ltd. v. Veras Capital Partners Offshore Fund, Ltd.,
580 F. Supp. 2d 321, 327 (S.D.N.Y. 2008) (quoting Eternity Global
Master Fund Ltd. v. Morgan Guaranty Trust Co. of New York, 375
F.3d 168, 176 (2d Cir. 2004)).

The court must construe the

complaint in the light most favorable to the plaintiff, “taking
its factual allegations to be true and drawing all reasonable
inferences in the plaintiff’s favor.”

Harris v. Mills, 572 F.3d

66, 71 (2d Cir. 2009).
B.

Municipal Liability Under 42 U.S.C. § 1981

When a defendant sues a municipality for discrimination under
42 U.S.C. § 1981, “the plaintiff is required to show that the
challenged acts were performed pursuant to a municipal ‘policy or
8

custom.’”

Patterson v. County of Oneida, 375 F.3d 206, 226 (2d

Cir. 2004); see also Chin v. New York City Housing Authority, 575
F. Supp. 2d 554, 561 (S.D.N.Y. 2008) (“A municipality can be liable
for violating Section 1981 only if the injury at issue resulted
from

the

execution

of

a

racially

custom.’” (footnote omitted)).

discriminatory

‘policy

or

A “policy or custom” exists where

a practice is “so widespread as to have the force of law, even
though it has ‘not received formal approval through the body’s
official decision-making channels.’”

Vaher v. Town of Orangetown,

133 F. Supp. 3d 574, 594 (S.D.N.Y. 2015) (quoting Monell v.
Department of Social Services, 436 U.S. 658, 691 (1978)).

“[A]

single incident alleged in a complaint, especially if it involved
only actors below the policy-making level, does not suffice to
show a municipal policy.”

DeCarlo v. Fry, 141 F.3d 56, 61 (2d

Cir. 1998) (quoting Ricciuti v. New York City Transit Authority,
941 F.2d 119, 123 (2d Cir. 1991)).

At the same time, “the acts

and pronouncements of a single official may constitute policy for
which the municipality is liable if that official is the ‘final
policymaker’ in the area at issue.”

Chin, 575 F. Supp. 2d at 561;

see also Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986)
(“[M]unicipal liability may be imposed for a single decision by
municipal policymakers under appropriate circumstances.”).
The plaintiffs argue that Ms. Zanca’s conduct constitutes a
municipal

custom

because

it

reflects
9

“a

widespread

practice,

against all the African-American teache[r]s[] throughout PAIHS.”
(Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion
to Dismiss the Amended Complaint in Part (“Pl. Memo.”) at 3).
argument is without merit.
DOE

had

a

policy

or

This

The plaintiffs do not allege that “the

widespread

and

discriminating against employees.”

well-settled

practice

of

Batista v. DeGennaro, No. 13

Civ. 1099, 2015 WL 1566733, at *3 (S.D.N.Y. March 31, 2015).
Rather, the plaintiffs’ allegations are confined to the actions of
a single principal at one school.

Even if pervasive at that

school, the discriminatory practices of a single principal do not
constitute a policy or custom of the DOE.

See Dressler v. New

York City Department of Education, No. 10 Civ. 3769, 2012 WL
1038600, at *17 (S.D.N.Y. March 29, 2012) (principal’s issuance of
unsatisfactory

ratings

is

not

a

policy

or

custom

where

the

“[p]laintiff adduces no evidence of practices or policies at a
level higher than [the] principal who issued [the] ratings”).

Nor

is a school principal a “final policymaker” with respect to teacher
evaluations and terminating employees.

See Batista, 2015 WL

1566733, at *3 (“[S]chool [p]rincipals . . . do not have the
authority to make employment decisions that are binding vis-à-vis
the DOE.” (footnote omitted)); Fierro v. New York City Department
of Education, 994 F. Supp. 2d 581, 589 (S.D.N.Y. 2014) (“[W]ith
respect to termination of teachers’ employment, principals do not
have final decisional authority; their decisions are subject to
10

appeal to the Chancellor and the DOE.”); Dressler, 2012 WL 1038600,
at *17 (“A principal’s teacher evaluation deviating from the
chancellor’s

regulations

principal’s

evaluations

is
are

subject

to

neither

reversal;
policy

as

such,

nor

a

final.”).

Therefore, Ms. Zanca’s conduct does not constitute a policy or
custom of the DOE.
The plaintiffs also argue that the DOE can be held liable for
failure to train Ms. Zanca.

(Pl. Memo. at 6-7).

“In limited

circumstances, a local government’s decision not to train certain
employees about their legal duty to avoid violating citizens’
rights may rise to the level of an official government policy
. . . .”

Connick v. Thompson, 563 U.S. 51, 61 (2011).

To hold a

defendant liable under the failure to train theory, a plaintiff
must show that the defendant’s failure to train “amount[s] to
‘deliberate indifference to the rights of persons with whom the
[untrained employees] come into contact.’”

Id. (alteration in

original) (quoting City of Canton v. Harris, 489 U.S. 378, 388
(1989)).

Deliberate indifference is a “stringent standard of

fault, requiring proof that a municipal actor disregarded a known
or obvious consequence of [her] action.”

Id. (quoting Board of

County Commissioners of Bryan County v. Brown, 520 U.S. 397, 410
(1997)).

The plaintiff must also “identify a specific deficiency

in the city’s training program and establish that the deficiency
. . . ‘actually caused’ the constitutional deprivation.”
11

Amnesty

America v. Town of West Hartford, 361 F.3d 113, 130 (2d Cir. 2004)
(quoting City of Canton, 489 U.S. at 391).

To “ensure that a

failure to train theory does not collapse into respondeat superior
liability,” the constitutional deprivation must “occur[] as a
result of a municipal policy rather than as a result of isolated
conduct by a single actor.”

Id.

The plaintiffs’ failure to train claim is based solely on the
conduct of Ms. Zanca -- a single actor.

Moreover, the plaintiffs

do not allege a causal nexus between a specific training program
(or lack thereof) and the constitutional violations alleged in the
Amended Complaint.

Even if they had, they fail to allege that

“city policymakers [were] on actual or constructive notice that a
particular omission in their training program cause[d] [Ms. Zanca]
to violate citizens’ constitutional rights.”
61.

Connick, 563 U.S. at

Though the plaintiffs allege that Mr. Mendez was aware of Ms.

Zanca’s conduct (Amend. Compl., ¶¶ 65-66, 72), he was not a
municipal

policymaker

with

respect

to

the

conduct

at

issue.

Flanagan v. New York City Department of Education, 13 Civ. 8456,
2015 WL 11142630, at *14 (S.D.N.Y. Aug. 21, 2015), report and
recommendation adopted, 2016 WL 7156765 (S.D.N.Y. Dec. 7, 2016).
Thus, the plaintiffs’ failure to train claim lacks merit. 2

2

Absent

To the extent that the plaintiffs also assert failure to
supervise as a basis to impose municipal liability, that claim
fails for the same reason.
They do not allege that a city
policymaker was on notice of Ms. Zanca’s conduct such that a
12

a theory to support the imposition of municipal liability, their
claim against the DOE under 42 U.S.C. § 1981 should be dismissed.
C.

Title VII Statute of Limitations

“As a precondition to filing an action in federal court under
Title VII, a litigant must first have filed a timely charge of
discrimination with the [EEOC].”

Odom v. Doar, 497 F. App’x 88,

89 (2d Cir. 2012); see 42 U.S.C. § 2000e-5(e)(1).

“In New York,

the statute of limitations for filing a charge with the EEOC is
300 days.”
University,

Odom, 497 F. App’x at 89; see also Tsai v. Rockefeller
137

F.

Supp.

2d

276,

280

(S.D.N.Y.

2001).

The

defendants argue that the plaintiffs’ Title VII claims are barred
to the extent that they are based on conduct that occurred more
than 300 days prior to the filing of their EEOC charges.

(Def.

10/24/16 Memo. at 10). The plaintiffs counter that the “continuing
violation doctrine” saves those claims.
“Under

Title

VII’s

continuing

(Pl. Memo. at 7-9).

violation

doctrine,

‘if

a

plaintiff has experienced a continuous practice and policy of
discrimination,

.

.

.

the

commencement

of

the

statute

of

limitations period may be delayed until the last discriminatory
act in furtherance of it.’”

Washington v. County of Rockland, 373

F.3d 310, 317 (2d Cir. 2004) (alteration in original) (quoting

failure to properly supervise her amounted to deliberate
indifference to the occurrence of known or obvious constitutional
violations.
13

Fitzgerald v. Henderson, 251 F.3d 345, 349 (2d Cir. 2001)).

The

doctrine applies to claims “composed of a series of acts that
collectively constitute one unlawful [] practice.”

Gonzalez v.

Hasty, 802 F.3d 212, 220 (2d Cir. 2015) (alteration in original)
(quoting Washington, 373 F.3d at 318).

To trigger the continuing

violation doctrine, the plaintiff “must allege both the existence
of an ongoing policy of discrimination and some non-time-barred
acts taken in furtherance of that policy.”
York, 186 F.3d 243, 250.

Harris v. City of New

(2d Cir. 1999).

“The doctrine has

generally been limited to situations where there are specific
policies or mechanisms, such as discriminatory seniority lists or
employment tests.”

Crosland v. City of New York, 140 F. Supp. 2d

300, 307 (S.D.N.Y 2001).

Accordingly, “discrete discriminatory

acts are not actionable if time barred, even when they are related
to acts alleged in timely filed charges.”

National Railroad

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
The plaintiffs argue that the continuing violation doctrine
applies to their claims because they alleged “an ongoing pattern,
practice[,] and policy of racial discrimination.”
8).
it

(Pl. Memo. at

Though all of Ms. Zanca’s alleged conduct was related in that
was

designed

to

target

African-American

teachers,

the

unsatisfactory ratings she gave to Ms. Hightower, her efforts to
undermine Ms. James’ theater program, and her instructing school
safety officers not to allow the plaintiffs on school premises
14

were discrete acts of discrimination and retaliation. See Valtchev
v.

City

of

(“[D]iscrete

New

York,

400

instances

of

F.

App’x

586,

589

[discriminatory]

(2d

Cir.

action,

2010)

such

as

negative evaluations, [] do not trigger the continuing violation
exception.”).

The plaintiffs do not allege that those actions

were carried out pursuant to a specific policy or mechanism beyond
Ms. Zanca’s individual racial animus.

Therefore, the continuing

violation doctrine does not apply to the plaintiffs’ Title VII
claims.

Those claims should be barred to the extent that they are

based on conduct that occurred more than 300 days prior to the
filing of the plaintiffs’ EEOC charges.
It is worth noting, however, that much of the discriminatory
conduct alleged in the Amended Complaint falls within 300 days of
the

plaintiffs’

EEOC

filings.

Ms.

Hightower

was

issued

unsatisfactory lesson ratings through the spring of 2013, received
an unsatisfactory rating for the school year in June 2013, and had
her employment with the DOE terminated in July 2013 (Amend. Compl.,
¶¶ 40, 42-43); Ms. Zanca’s efforts to undermine Ms. James’ theater
program occurred in February and March of 2013.

(Amend. Compl.,

¶¶ 53-57); and Ms. Zanca’s exclusion of Ms. James and Ms. Hightower
from the school’s premises occurred in the summer of 2013. (Amend.
Compl., ¶ 63).

Accordingly, the statute of limitations does not

bar the plaintiffs’ Title VII claims entirely.

15

D.

NYSHRL and NYCHRL Claims Against the DOE and Mr. Mendez

The defendants’ argue that the plaintiffs’ NYSHRL and NYCHRL
claims against the DOE and Mr. Mendez are barred by their failure
to plead that they filed a notice of claim and by the one-year
statute of limitations governing claims against school districts
and

their

officers.

(Def.

10/24/16

Memo.

at

11-13).

The

plaintiffs concede that they did not file a notice of claim but
argue that they were not required to do so.

(Pl. Memo. at 9-10).

They rely on section 3813(2) of the New York Education Law, which
requires a notice of claim to be filed in any lawsuit “founded
upon tort” against a school district, its officers, or “any teacher
or member of the supervisory or administrative staff or employee”
of the district.

N.Y. Educ. Law § 3813(2).

Because employment

discrimination claims under the NYSHRL and NYCHRL are not “founded
upon tort,” see Margerum v. City of Buffalo, 24 N.Y.3d 721, 730,
5 N.Y.S.3d 336, 340 (2015) (holding that the notice of claim
requirement under sections 50-e of the New York General Municipal
Law does not apply to employment discrimination claims under the
NYSHRL because “[h]uman rights claims are not tort actions under
section 50-e”), the plaintiffs argue that they were not required
to file a notice of claim pursuant to section 3813(2).
That argument has merit with respect to the notice of claim
requirement in section 3813(2).

However, the plaintiffs ignore

section 3813(1) of the Education Law, which requires a notice of
16

claim to be filed to bring a lawsuit against a school district or
its officers for “any cause whatever . . . involving the rights or
interests of any district or any such school.”
3813(1).

N.Y. Educ. Law §

Section 3813(1) is narrower than section 3813(2) in that

it only applies to claims against school districts and their
officers, but broader than section 3813(2) in that it is not
limited to claims founded upon tort.
claim

requirement

applies

to

As a result, its notice of

employment

discrimination

claims

against school districts and their officers under the NYSHRL and
NYCHRL. See, e.g., Smith v. New York City Department of Education,
808 F. Supp. 2d 569, 578 (S.D.N.Y. 2012)

(“Section 3813 of New

York’s Education law requires the filing of a notice of claim prior
to the commencement of an action against the DOE or its officers.
. . . [T]he requirements apply to causes of action sounding in
discrimination . . . .”); Santiago v. Newburgh Enlarged City School
District,

434

F.

Supp.

2d

193,

196

(S.D.N.Y.

2006)

(“Section 3813(1) of the State Education Law makes the filing of
a notice of claim within three months after the accrual of a claim
an absolute condition precedent to the filing of a lawsuit . . . .
The

notice

of

claim

requirement

applies

to

claims

for

discrimination under the New York State Human Rights Law.”).

The

filing of a notice of claim must “appear by and as an allegation
in the complaint or necessary moving papers.”
3813(1).

N.Y. Educ. Law §

The plaintiffs did not plead that they filed a notice of
17

claim

in

the

Amended

Complaint

or

their

moving

papers.

Accordingly, their NYSHRL and NYCHRL claims against the DOE and
Mr. Mendez should be dismissed. 3
E.

NYSHRL and NYCHRL Claims Against Ms. Zanca

Claims under the NYSHRL and NYCHRL are generally governed by
a three-year statute of limitations.

CPLR § 214(2); N.Y.C. Admin.

Code § 8-502(d); Taylor v. City of New York, __ F. Supp. 3d __,
__, 2016 WL 4768829, at *5 (S.D.N.Y. 2016). The defendants contend
that the plaintiffs’ NYSHRL and NYCHRL claims against Ms. Zanca
should be dismissed to the extent that they are based on conduct
that occurred before June 22, 2013, three years before this action
was commenced.
without merit.

(Def. 10/24/16 Memo. at 13).

This argument is

Filings with the New York State Division of Human

Rights (“NYSDHR”) toll the statute of limitations under the NYSHRL
and NYCHRL, Penman v. Pan American Airways, 69 N.Y.2d 989, 990,

3

Because those claims should be dismissed based on the
plaintiffs’ failure to plead that they filed a notice of claim,
the defendants’ statute of limitations argument need not be
addressed.
However, the issue was already resolved in Mr.
Riccardo’s lawsuit, which is consolidated with this action. For
the reasons discussed in Riccardo v. New York City Department of
Education, No. 16 Civ. 4891, 2016 WL 7106048, at *6-8 (S.D.N.Y.
Dec. 2, 2016), report and recommendation adopted sub nom. United
States v. New York City Department of Education, Nos. 16 Civ. 4291,
16 Civ. 4891, 2017 WL 57854 (S.D.N.Y. Jan. 4 2017), the one-year
statute of limitations on claims against the DOE and its officers
is tolled during the pendency of an EEOC complaint. Accordingly,
if the plaintiffs had satisfied the notice of claim requirement,
the statute of limitations would have been tolled during the
pendency of their EEOC complaints.
18

517 N.Y.S.2d 719, 719 (1987), and a timely EEOC filing is deemed
filed with the NYSDHR for tolling purposes, see Siddiqi v. New
York City Health & Hospitals Corp., 572 F. Supp. 2d 353, 373
(S.D.N.Y. 2008); Martinez-Tolentino v. Buffalo State College, 277
A.D.2d

899,

899,

715

N.Y.S.2d

554,

555

(4th

Dep’t

2000).

Accordingly, numerous district courts have held that the threeyear statute of limitations under the NYSHRL and NYCHRL is tolled
during the period in which a complaint is pending before the EEOC.
See, e.g., Taylor, __ F. Supp. 3d at __, 2016 WL 4768829, at *5;
Esposito v. Deutsche Bank AG, No. 07 Civ. 6722, 2008 WL 5233590,
at

*5

(S.D.N.Y.

Dec.

16,

2008).

Therefore,

the

statute

of

limitations on the plaintiffs’ NYSHRL and NYCHRL claims against
Ms. Zanca was tolled from the date of their respective EEOC filings
in 2013 through June 9, 2016, the date the Justice Department filed
its lawsuit.

Since all of the discriminatory conduct alleged by

the plaintiffs occurred in 2012 and 2013, the three-year statute
of limitations does not bar their NYSHRL and NYCHRL claims against
Ms. Zanca.
F.

Constructive Discharge

Ms. James alleges that she was constructively discharged from
the DOE in violation of Title VII, the NYSHRL, and the NYCHRL
because Ms. Zanca’s conduct left her no choice but to leave PAIHS.
(Amend. Compl., ¶¶ 75-76, 92, 98, 108; Pl. Memo. at 12-14).

The

defendants contend that this claim should be dismissed because Ms.
19

James does not allege that she ever stopped working at the DOE.
(Def. 10/24/16 Memo. at 14).

“An employee is constructively

discharged when [her] employer, rather than discharging [her]
directly, intentionally creates a work atmosphere so intolerable
that [s]he is forced to quit involuntarily.”
336

F.3d

128,

151-52

(2d

Cir.

2003);

Terry v. Ashcroft,

see

also

Shultz

v.

Congregation Shearith Israel of the City of New York, __ F. Supp.
3d __, __, 2016 WL 4367974, at *6 (S.D.N.Y. 2016).
Court

recently

explained

that

a

constructive

The Supreme

discharge

claim

consists of “two basic elements.”

Green v. Brennan, __ U.S. __,

__, 136 S. Ct. 1769, 1777 (2016).

First, a plaintiff must prove

“that [s]he was discriminated against by [her] employer to the
point where a reasonable person in [her] position would have felt
compelled to resign.”

Id.; accord Terry, 336 F.3d at 152.

she “must [] show that [s]he actually resigned.”

Second,

Green, __ U.S.

at __, 136 S. Ct. at 1777; cf. Brown v. New York State Department
of Correctional Services, 583 F. Supp. 2d 404, 413 (W.D.N.Y. 2008)
(“As the term ‘constructive discharge’ implies, a sine qua non of
such a claim is that the plaintiff’s employment with the defendant
has ended.”).
Here, the Amended Complaint indicates that Ms. James did not
resign from the DOE in response to Ms. Zanca’s conduct.

Rather,

she transferred to a job at Manhattan Lab, a different school
within the DOE.

(Amend. Compl., ¶ 76).
20

The school was scheduled

to close two years after she transferred there.
¶ 76).

(Amend. Compl.,

Though the Amended Complaint states that “she has not been

working for the Defendants,” presumably because of Manhattan Lab’s
closing, it also states that she “may still be on [the] DOE’s
payroll.”

(Amend. Compl., ¶¶ 76-77).

Her current employment

status with the DOE is therefore unclear.

Absent an allegation

that Ms. James actually resigned from the DOE because of Ms.
Zanca’s conduct, the Amended Complaint does not state a claim for
constructive discharge.

Accordingly, her constructive discharge

claim should be dismissed.
Dismissal

of

the

constructive

discharge

claim

does

not,

however, bar Ms. James from bringing a claim under Title VII or
the

human

rights

laws

based

on

her

decision

to

transfer

to

Manhattan Lab. Several district courts in this Circuit and several
United States courts of appeals have applied the constructive
discharge doctrine to situations where an employee voluntarily
transfers to a different position with the same employer.

See,

e.g., Sharp v. City of Houston, 164 F.3d 923, 934 (5th Cir. 1999)
(reversing grant of summary judgment where “[t]he jury could have
found that the transfer, albeit at [the plaintiff’s] request, was
a constructive demotion, the involuntary result of conditions so
intolerable that a reasonable person would feel compelled to
leave”); Claes v. Boyce Thompson Institute for Plant Research, 88
F. Supp. 3d 121, 126 (N.D.N.Y. 2015) (“The Second Circuit has not
21

explicitly recognized and applied the doctrine of constructive
discharge to scenarios in which an employee accepts a transfer of
employment.
several

However, various district courts in this circuit and

other

reasoning

circuit

behind

courts

such

have

persuasively

application.”);

explained

Sebold

v.

City

the
of

Middletown, No. 05 CV 1205, 2007 WL 2782527, at *13 (D. Conn. Sept.
21,

2007)

(“A

voluntary

transfer

can

constitute

an

adverse

employment action if it amounts to a constructive discharge.”
(footnote omitted)); De Chanval Pellier v. British Airways, PLC,
No. 02 CV 4195, 2006 WL 132073, at *4 (E.D.N.Y. Jan. 17, 2006)
(collecting cases from the Fifth, Seventh, and Eighth Circuits
applying constructive discharge analysis to voluntary employment
transfers).
Applying the constructive discharge doctrine to voluntary
transfers is rooted in the principle that an involuntary transfer
constitutes
‘show[s]

an

that

adverse

employment

action

if

“the

the

transfer

created

a

disadvantage’

with

respect

to

terms

employment.” 4

Williams v. R.H. Donnelly, Corp., 368 F.3d 123, 128

the

materially

plaintiff

and

significant

conditions

of

(2d Cir. 2004) (alteration in original) (quoting Galabya v. New

4

An “adverse employment action” is measured by the same
standard under Title VII, the NYSHRL, and the NYCHRL. Bermudez v.
City of New York, 783 F. Supp. 2d 560, 576-77 (S.D.N.Y. 2011);
Knight v. City of New York, 303 F. Supp. 2d 485, 495 (S.D.N.Y
2004).
22

York City Board of Education, 202 F.3d 636, 641 (2d Cir. 2000)).
Just

as

a

voluntary

resignation

becomes

actionable

as

a

constructive discharge when an employer creates working conditions
so intolerable that a reasonable person would feel compelled to
resign, a voluntary transfer to a materially inferior position
becomes actionable as a constructive involuntary transfer 5 when an
employer “create[s] conditions so difficult or unpleasant that a
reasonable person in her shoes would have been compelled to request
and accept the transfer.”

Claes, 88 F. Supp. 3d at 126; see also

De Chanval Pellier, 2006 WL 132073, at *5.

Accordingly, Ms. James

may bring a constructive involuntary transfer claim under Title
VII and the human rights laws if (1) she was discriminated against
to the point that working conditions were so intolerable that a
reasonable person in her shoes would feel compelled to transfer;

5

Some of the courts that have applied the constructive
discharge doctrine to voluntary transfers call the claim a
“constructive demotion.” See Fenney v. Dakota, Minnesota & Eastern
Railroad Co., 327 F.3d 707, 717 (8th Cir. 2003); Sharp, 164 F.3d
at 934; Claes, 88 F. Supp. 3d at 126. Other courts do not give
the claim a name at all. See Sebold, 2007 WL 2782527, at *13; De
Chanval Pellier, 2006 WL 132073, at *5. The term “constructive
demotion” has been used by courts in this district for a different
type of claim. See, e.g., Tse v. UBS Financial Services, Inc.,
568 F. Supp. 2d 274, 290 (S.D.N.Y. 2008) (“When an employer imposes
new conditions of employment and combines those conditions with a
threat of termination for non-compliance, such a combination may
give rise to a constructive demotion, thereby creating an adverse
employment action.”). Accordingly, I adopt the term “constructive
involuntary transfer” to describe the application of the
constructive discharge doctrine to voluntary employment transfers.
23

and (2) her transfer created a materially significant disadvantage
in the terms and conditions of her employment.
Although

establishing

that

working

conditions

are

so

intolerable that a reasonable person would feel compelled to leave
is “a ‘demanding’ standard,” Pryor v. Jaffe & Asher, LLP, 992 F.
Supp. 2d 252, 262 (S.D.N.Y. 2014) (quoting Miller v. Praxair, Inc.,
408 F. App’x 408, 410 (2d Cir. 2010)), the allegations here are
extreme.

Ms. Zanca engaged in repeated efforts to undermine Ms.

James’ theater program -- the program she was hired to run -- by
withdrawing previously allocated funds on multiple occasions and
disparaging Ms. James to the students’ parents.
¶¶ 53-54, 56-57).

(Amend. Compl.,

When Ms. James filed a complaint with the OEO,

Ms. Zanca responded by ordering school safety officers not to allow
her on school premises even though she was still employed at PAIHS.
(Amend. Compl., ¶ 63).

Moreover, Ms. Zanca’s treatment of Ms.

Hightower and Mr. Flanagan indicated that her treatment of Ms.
James was racially motivated and designed to force her out of the
school.

Under these circumstances, a reasonable person in Ms.

James’ position might feel compelled to transfer away from PAIHS.
A “materially significant disadvantage” in working conditions
includes “a decrease in wage or salary, a less distinguished title,
a material loss of benefits, or other indices . . . unique to the
particular situation.”

Williams, 368 F.3d at 128 (alteration in

original) (quoting Galabya, 202 F.3d at 640).
24

It “must be more

disruptive

than

a

responsibilities.”

mere

inconvenience

or

alteration

of

Id. (quoting Galabya, 202 F.3d at 640).

job
In

this case, Ms. James’ position at Manhattan Lab was temporary,
ending when the school was closed, as scheduled, two years after
her transfer.

(Amend. Compl., ¶ 76).

the other hand, had no set end date.

Her position at PAIHS, on

The transfer also led her to

be marked as an “excess employee” when Manhattan Lab closed (Amend.
Compl., ¶ 76), though the Amended Complaint does not explain the
implications of this designation.

Although Ms. James does not

allege a decrease in salary, a reduction in pay is not required
for a transfer to be an adverse employment action.

De la Cruz v.

New York City Human Resources Administration Department of Social
Services, 82 F.3d 16, 21 (2d Cir. 1996) (transfer from job in
“‘elite’

division”

to

“less

prestigious

unit

with

little

opportunity for professional growth” but identical pay was adverse
employment action for purposes of prima facie case); Leichter v.
St. Vincent’s Hospital and Medical Center of New York, No. 94 Civ.
7537, 2001 WL 1160748, at *9 (S.D.N.Y. Sept. 28, 2001) (“[A]dverse
employment actions exist even where an employee has experienced no
change in salary.”).

Therefore, Ms. James’ transfer was more than

a mere inconvenience or change in responsibilities.

It put an

expiration date on her position with the DOE where none existed
before and left her with a possibly disadvantageous designation
when that position ended.

These allegations could constitute
25