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

Filing 44

MEMORANDUM AND ORDER re: (47 in 1:16-cv-04891-LAK-JCF) FIRST MOTION to Amend/Correct Complaint filed by Anthony Riccardo. For the reasons discussed above, the plaintiff's motion for leave to amend (Docket no. 47 in 16 Civ. 4891) is denied. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 3/28/2017) Copies Transmitted this Date By Chambers. (anc)

Code § 8-101 et seq. (the “NYCHRL”). 1

By Order dated January 4,

2017, the Honorable Lewis A. Kaplan, U.S.D.J., dismissed the
plaintiff’s NYSHRL and NYCHRL claims against the DOE and Mr. Mendez
because the plaintiff failed to plead that he filed a notice of
claim pursuant to New York Education Law § 3813(1).

United States

v. New York City Department of Education, Nos. 16 Civ. 4291, 16
Civ.

4891,

2017

WL

57854,

(hereinafter Riccardo I).

at

*1

(S.D.N.Y.

Jan.

4,

2017)

The plaintiff moves for leave to amend

his complaint to allege facts showing that he satisfied the notice
of claim requirement.

For the reasons discussed below, the motion

is denied.
Background
This case involves allegations that Ms. Zanca, the principal
of Pan American International High School (“PAIHS”), discriminated
and retaliated against Mr. Riccardo because he refused to assist
her

in

teachers.

discriminating

against

the

school’s

African-American

The facts underlying the plaintiff’s claims are set

forth in my Report and Recommendation on the defendants’ motion to
dismiss the original complaint.

See Riccardo v. New York City

Department of Education, No. 16 Civ. 4891, 2016 WL 7106048, at *12 (S.D.N.Y. Dec. 2, 2016).

1

Mr. Riccardo’s action has been consolidated with the abovecaptioned action brought by the United States. (Order dated Oct.
13, 2016).
2

Mr. Riccardo was the assistant principal of PAIHS during the
2012-13 school year.

(Proposed First Amended Complaint (“Proposed

FAC”), attached as Exh. 1 to Declaration of Noah A. Kinigstein
dated Jan. 25, 2017, ¶¶ 16, 39).
of Queens County High Schools.

Mr. Mendez was the Superintendent
(Proposed FAC, ¶ 8).

In February

2013, Mr. Riccardo informed Ms. Zanca that he would no longer
comply with her discriminatory conduct.

(Proposed FAC, ¶ 33).

She responded by “writing him up” with the intention of giving him
an unsatisfactory (“U”) rating for the school year.
FAC, ¶ 33).
Hightower,

(Proposed

In April 2013, after Mr. Riccardo gave Heather

one

of

the

school’s

African-American

teachers,

a

satisfactory (“S”) rating for one of her lessons, Ms. Zanca “had
[Mr.] Riccardo forcibly removed from the school building by school
security.”

(Proposed FAC, ¶ 35).

In late June 2013, Ms. Zanca

gave Mr. Riccardo a “U” rating for the 2012-13 school year, which
terminated

his

probationary

(Proposed FAC, ¶ 39).

status

as

assistant

principal.

In September 2013, the plaintiff entered

into a “stipulation” with the defendants (Proposed FAC, ¶ 52),
though the terms of the stipulation are not set forth in the
proposed amended complaint.
On June 26, 2013, Mr. Riccardo filed a complaint with the
DOE’s Office of Equal Opportunity (“OEO”).

(Proposed FAC, ¶ 36).

On July 23, 2013, he was interviewed by Theresa B. Wade, an OEO
attorney, about Ms. Zanca’s conduct.
3

(Proposed FAC, ¶¶ 44-45).

In early August 2013, Mr. Riccardo discussed Ms. Zanca’s conduct
with Mr. Mendez. (Proposed FAC, ¶ 48). The DOE did not investigate
Mr. Riccardo’s allegations further.

(Proposed FAC, ¶¶ 49-50).

On

September 20, 2013, Mr. Riccardo filed a complaint with the United
States

Equal

Employment

Opportunity

Commission

(“EEOC”).

(Proposed FAC, ¶ 51).
Discussion
A.

Legal Standard

Rule 15 of the Federal Rules of Civil Procedure provides that
courts

should

requires.”

“freely

give”

leave

to

amend

“when

justice

so

Fed. R. Civ. P. 15(a)(2); see also Foman v. Davis, 371

U.S. 178, 182 (1962); Aetna Casualty & Surety Co. v. Aniero
Concrete Co., 404 F.3d 566, 603 (2d Cir. 2005).
standard

is

consistent

with

[the

Second

“This permissive

Circuit’s]

preference for resolving disputes on the merits.’”

‘strong

Williams v.

Citigroup Inc., 659 F.3d 208, 212–13 (2d Cir. 2011) (quoting New
York v. Green, 420 F.3d 99, 104 (2d Cir. 2005)).

The court has

broad discretion over motions to amend, see McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007), and may deny
such a motion for the following reasons: (1) undue prejudice to
the non-moving party, (2) futility, (3) bad faith or dilatory
motive, (4) repeated failure to cure deficiencies by previous
amendments, or (5) undue delay, United States ex rel. Ladas v.
Exelis, Inc., 824 F.3d 16, 28 (2d Cir. 2016).
4

Here,

the

defendants

amendment is futile.

argue

solely

that

the

plaintiff’s

Leave to amend should be denied as futile

when the amended pleading would not survive a motion to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

IBEW

Local Union No. 58 Pension Trust Fund and Annuity Fund v. Royal
Bank of Scotland Group, PLC, 783 F.3d 383, 389 (2d Cir. 2015).
Thus,

the

appropriate

legal

standard

is

whether

the

amended

pleading states a claim on which relief can be granted.

See

Panther Partners Inc. v. Ikanos Communications, Inc., 681 F.3d
114, 119 (2d Cir. 2012).

The court should accept all facts pled

as true and construe them in the light most favorable to the
plaintiff to determine whether the allegations give rise to a
plausible claim for relief.

Id. (citing Ashcroft v. Iqbal, 556

U.S. 662, 678-80 (2009)).

The defendants bear the burden of

demonstrating that the proposed amendment is futile.

See Allison

v. Clos-ette Too, LLC, No. 14 Civ. 1618, 2015 WL 136102, at *2
(S.D.N.Y. Jan. 9, 2015); Ferring B.V. v. Allergan, Inc., 4 F. Supp.
3d 612, 618 (S.D.N.Y. 2014).
B.

Analysis

New York Education Law § 3813(1) provides that no claim
involving the rights or interests of a school district may be
brought against the district or its officers
unless it shall appear by and as an allegation in the
complaint or necessary moving papers that a written
verified claim upon which such action or special
5

proceeding is founded was presented to the governing
body of said district or school within three months after
the accrual of such claim.
Thus, in order to bring a claim against the DOE or its officers 2
under the NYSHRL or NYCHRL, a plaintiff must serve a written notice
of claim on the governing board of the DOE within three months of
the claim arising.

See Bacchus v. New York City Department of

Education, 137 F. Supp. 3d 214, 234 (E.D.N.Y. 2015)
Here, it is undisputed that the plaintiff did not file a
formal notice of claim.

He asserts, however, that his EEOC and

OEO complaints may serve as substitutes for the filing of a notice
of claim.

(Plaintiff’s Memorandum of Law in Support of Leave to

File an Amended Complaint at 3).

Separately, he argues that the

defendants waived the defense based on the lack of a notice of
claim

because

they

negotiated

a

“settlement”

with

him.

(Plaintiff’s Memorandum of Law in Response to Defendants’ Reply
and Opposition to Plaintiff’s Motion for Leave to File an Amended
Complaint (“Reply”) at 3-7).
1.

These arguments are without merit.

Notice of Claim Substitutes

The New York Court of Appeals has “repeatedly rejected . . .
proposals to compromise the strict statutory notice of claim
requirement

because

to

do

so

would

2

lead

to

uncertainty

and

As a school superintendent, Mr. Mendez is an “officer” under
Section 3813. See Collins v. City of New York, 156 F. Supp. 3d
448, 460 (S.D.N.Y. 2016).
6

vexatious disputes.”

Varsity Transit, Inc. v. Board of Education

of the City of New York, 5 N.Y.3d 532, 536, 806 N.Y.S.2d 457, 459
(2005).

“Despite this clear language of strict construction, both

Federal and New York State courts have considered whether documents
other than a notice of claim can be deemed sufficient to satisfy
the Section 3813 notice of claim requirement.”

Brtalik v. South

Huntington Union Free School District, No. 10 CV 10, 2010 WL
3958430, at *4 (E.D.N.Y. Oct. 6, 2010) (collecting cases). Several
courts in this Circuit have held that certain administrative
filings, like an EEOC complaint, may satisfy the notice of claim
requirement “in limited circumstances where ‘the charge puts the
school district on notice of the precise claims alleged, is served
on the governing board of the district (and not a different arm of
the district), and is served within the statutory time period.’”
Legrá v. Board of Education of the City School District of the
City of New York, No. 14 Civ. 9245, 2016 WL 6102369, at *3 (S.D.N.Y.
Oct. 19, 2016) (quoting Brtalik, 2010 WL 3958430, at *5); see
Bacchus, 137 F. Supp. 3d at 234; Grenzig v. Sachem School District,
13 CV 7278, 2014 WL 11191093, at *3 (E.D.N.Y. Feb. 11, 2014).
Here, the plaintiff does not allege that he served the EEOC
complaint or the OEO complaint on the governing board of the DOE.
Rather, he alleges that he served the EEOC complaint only on the

7

EEOC 3 and that he served the OEO complaint only on the OEO.
(Proposed FAC, ¶¶ 4, 36, 51).

The OEO complaint was subsequently

“transferred to the DOE’s Office of Legal Services.”
FAC, ¶ 36).

(Proposed

However, neither the OEO nor the DOE’s Office of Legal

Services constitute the governing board of the DOE.

See Bacchus,

137 F. Supp. 3d at 234 (service of New York State Division of Human
Rights complaint on DOE’s legal department did not constitute
service on DOE’s governing board); cf. Gear v. Department of
Education, No. 07 Civ. 11102, 2009 WL 484424, at *5 (S.D.N.Y. Feb.
24,

2009)

(OEO

complaint

does

not

satisfy

notice

of

claim

requirement). Thus, the plaintiff’s EEOC and OEO complaints cannot
serve as substitutes for a formal notice of claim.
2.

Waiver and Estoppel

In the alternative, the plaintiff asserts that the defendants
waived the notice of claim defense because they entered into a

3

The defendants attached a copy of the plaintiff’s EEOC
complaint to their opposition brief. (EEOC Complaint, attached as
Exh. A to Declaration of Jessica Wisniewski dated Feb. 15, 2017).
A stamp on the EEOC complaint indicates that the DOE’s Office of
the General Counsel received a copy of it on November 14, 2013.
(EEOC Complaint). This does not change the analysis. First, the
General Counsel’s Office is not the governing board of the DOE.
See Bacchus, 137 F. Supp. 3d at 234.
Second, the only adverse
action against Mr. Riccardo raised with specificity in the EEOC
complaint is Ms. Zanca’s order to have him removed from school
premises in April 2013, which issued seven months before the
General Counsel’s Office received the complaint. Therefore, even
if service on the General Counsel’s Office were sufficient, the
EEOC complaint would not have put the DOE on notice of any of the
plaintiff’s claims within the statutory time period such that it
could serve as a substitute for a formal notice of claim.
8

“settlement” with him.

(Reply at 3-7).

He relies on a single,

sixty-year-old case, Teresta v. City of New York, 304 N.Y. 440
(1952), to support this argument. In Teresta, the plaintiff timely
served a notice of claim on the comptroller -- the proper party to
serve under the applicable statute 4 -- by regular mail.
442.

Id. at

However, that statute required the notice of claim to be

served either in person or by registered mail: service by regular
mail was not permitted.

Id.

Despite the plaintiff’s failure to

comply with the procedural rule, the comptroller responded to the
notice

of

claim

by

asking

the

plaintiff

to

appear

“for

examination,” which the plaintiff subsequently did. Id. The Court
of Appeals held that because “the city neither returned the notice,
nor at any time objected to the manner in which it had been served
until

after

the

commencement

of

the

trial,

the

statutory

requirement of personal service or notification by registered
letter must be deemed to have been fully and effectively waived.”
Id. at 442-43.
The circumstances in this case are quite different.

In

Teresta, the Court of Appeals relied on the fact that “an executive
officer of the city actually informed plaintiff that his notice
had been received and then proceeded to hold an examination in
connection with the claim.”

Id. at 443.

4

Here, there is no

The case involved the notice of claim requirement in Section
50-e of the General Municipal Law.
9

allegation that the governing board of the DOE received a notice
of claim, much less that it led the plaintiff to believe that he
had satisfied the notice of claim requirement.

Moreover, the

defendants did not delay in raising the notice of claim issue.
Rather, they raised it in their motion to dismiss the original
complaint

filed

less

initiated this action.

than

three

months

after

the

plaintiff

Thus, the plaintiff’s argument that the

defendants waived the notice of claim defense is without merit.
Recent

case

law

supports

the

proposition

that

equitable

estoppel may bar a municipal defendant from raising a defense based
on the lack of a notice of claim where the defendant “acts or
comports itself wrongfully or negligently, inducing reliance by a
party who is entitled to rely and who changes his position to his
detriment

or

prejudice.”

East

Coast

Resources

v.

Town

of

Hempstead, 707 F. Supp. 2d 401, 407 (E.D.N.Y. 2010) (quoting Bender
v. New York City Health & Hospitals Corp., 38 N.Y.2d 662, 667, 382
N.Y.S.2d 18, 20-21 (1976)); accord Allocco Recycling, Ltd. v.
Doherty, 378 F. Supp. 2d 348, 375 (S.D.N.Y. 2005).

The plaintiff

here has not alleged any facts to support such a finding.

The

proposed

the

amended

complaint

makes

a

passing

reference

“stipulation” solely to highlight the EEOC’s determination that
the plaintiff signed it under pressure to have his “U” rating
changed.

(Proposed FAC, § 52).

The plaintiff’s reply brief makes

only opaque statements that the parties reached a “settlement” or
10

“resolution” that was “signed by the NYCDOE.”

(Reply at 3-4, 6).

Thus, the plaintiff does not allege that he relied to his detriment
on conduct by the governing board of the DOE indicating that he
did not need to file a notice of claim.

Accordingly, equitable

estoppel does not preclude the defendants from raising the notice
of claim defense.
In sum, the plaintiff fails to plead that he satisfied the
notice of claim requirement, and neither waiver nor estoppel bars
the

defendants

from

raising

the

notice

of

claim

defense.

Therefore, the proposed amended complaint would not survive a
motion to dismiss the NYSHRL and NYCHRL claims against the DOE and
Mr. Mendez, and leave to amend is denied as futile.
3.

Leave to Replead

Leave to replead may be denied where a court has previously
identified deficiencies in the pleadings and the deficiencies
remain uncorrected in subsequent pleadings.

Official Committee of

Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP,
322 F.3d 147, 168 (2d Cir. 2003); see also Foman, 371 U.S. at 182.
Judge Kaplan’s January 4, 2017 Order identified the plaintiff’s
failure to plead that he filed a notice of claim.
2017 WL 57854, at *1.
plaintiff’s

proposed

See Riccardo I,

That defect remains unremedied in the

amended

complaint.

replead is denied.

11

Therefore,

leave

to