Williams v. New York City Department of Education et al

Filing 50

MEMORANDUM OPINION AND ORDER re: 41 MOTION to Dismiss the Amended Complaint. filed by New York City Department of Education, Teri Stinson. For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part. The motion to dismiss is granted with respect to (a) all of Plaintiffs race discrimination claims under Title VII, the NYSHRL, and the NYCHRL; (b) Plaintiffs ADEA claims against Ms. Stinson; (c) Plaintiffs NYSHRL and NYCHRL claims against t he DOE; (d) all of Plaintiffs retaliation claims under Title VII, the NYSHRL, and the NYCHRL; and (e) any of Plaintiffs claims accruing prior to March 7, 2014 or predicated on allegations regarding her pay, performance evaluation, or harassment. Acc ordingly, all such claims are hereby DISMISSED. Because Plaintiff was previously afforded the opportunity to amend her complaint, these claims are dismissed with prejudice. However, the motion to dismiss is denied with respect to Plaintiffs remaining claims: that the DOE demoted or terminated her from employment at PS 30M for the 2014-2015 school year because of her age in violation of the ADEA, and that Ms. Stinson demoted or terminated her from employment because of her age in violation of the NYCHRL and NYSHRL. The parties are reminded that this matter remains referred to Magistrate Judge Debra Freeman for general pretrial. See Dkt. No. 7. By separate order, Judge Freeman may schedule a case management conference. As a final matter, the Court wishes to inform Plaintiff that a legal clinic operates in this District to assist people who are parties in civil cases and do not have lawyers. The Clinic is run by a private organization called the New York Legal Assistance Group; it is not part of, or run by, the Court (and, among other things, therefore cannot accept filings on behalf of the Court, which must still be made by any unrepresented party through the Pro Se Intake Unit). The Clinic is located in the Thurgood Marshall Unite d States Courthouse, 40 Centre Street, New York, New York, in Room LL22, which is just inside the Pearl Street entrance to that Courthouse. The Clinic is open on weekdays from 10 a.m. to 4 p.m., except on days when the Court is closed. An unrepresent ed party can make an appointment in person or by calling 212-659-6190. Chambers will mail a copy of this order to the pro se Plaintiff and note its mailing on the public docket. This resolves Dkt. No. 41. SO ORDERED. (Signed by Judge Alison J. Nathan on 9/29/2018) Copies Mailed By Chambers. (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Wanda Williams,
Plaintiff,
17-cv-1996 (AJN)

-vMEMORANDUM
OPINION AND ORDER

New York City Department of Education and
Principal Teri Stinson,
Defendants.

ALISON J. NATHAN, District Judge:
Plaintiff Wanda Williams, proceeding prose, filed this action under Title VII of the Civil
Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Age Discrimination in
Employment Act ("ADEA''), 29 U.S.C. § 621 et seq., the New York State Human Rights Law
("NYSHRL"), N.Y. Exec. Law§§ 290-97, and the New York City Human Rights Law
("NYCHRL"), N.Y. City Admin. Code§§ 8-101-31. Ms. Williams alleges that Defendants New
York City Department of Education ("DOE") and Principal Teri Stinson discriminated against
her on the basis of age and race and subsequently retaliated against her. Currently before the
Court is Defendants' motion to dismiss Plaintiffs First Amended Complaint ("F AC") under
Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 41.
For the following reasons, Defendants' motion to dismiss as to Plaintiffs Title VII and
ADEA claims is GRANTED in part and DENIED in part.
I.

Background
The Court first provides the factual and procedural background leading to this motion to

dismiss. For the purpose of evaluating this motion to dismiss, all plausible allegations in the
1

amended complaint are accepted as true, and all reasonable inferences are drawn in Plaintiffs
favor. See Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). Further, in
this prose case, the Court reads Ms. Williams's papers "liberally" and "interpret[s] them to raise
the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).

A.

Factual Background

This action arises out of Plaintiffs employment with the DOE. Plaintiff is a 58-year-old
woman who worked as a per diem substitute teacher for the DOE from 2011 through the
circumstances leading to this case. Dkt. No. 35, FAC il 6 & Exhibits at 3 (listing birth date as
September 6, 1959). 1 Plaintiff possesses a New York State teaching certification for birth
through second grade and, after obtaining a Master's Degree, began substitute-teaching and
applying for full-time teaching positions. FAC il 3.
The facts resulting in Plaintiffs alleged discriminatory treatment are as follows. On or
about January 13, 2014, when she was 54 years old, Plaintiff accepted a weeklong teaching
assignment with DOE's Hernandez-Hughes School ("PS 30M"). FAC il 23. After Plaintiff
reported to work, the principal, Defendant Teri Stinson, reportedly asked her to remain in the
position for the remainder of the school year in order to offer the students of Kindergarten class
229 ("K-229") "educational stability." FAC ilil 1, 24. Plaintiff agreed. FAC il 24. Accordingly,
from January through March 2014, each week, administrators at PS 30M asked Plaintiff to return
to teach the following week. FAC

il 26.

They also informed her that the former teacher, whose

1

Plaintiffs race is not apparent from the FAC or any other judicially noticeable materials. Although it
appears from Plaintiffs "Motion Opposing Defendant's Request to Dismiss Amended Complaint" that Plaintiff may
be Black, see Dkt. No. 46 at 4 (discussing the DOE's alleged practice of"recruiting lesser qualified, younger, nonBlack candidates"), the Court may not consider matters outside the pleadings, including factual assertions stated in
briefs or memoranda, in evaluating a 12(b)(6) motion. See Fonte v. Board ofManagers of Continental Towers
Condo., 848 F.2d 24, 25 (2d Cir. 1988).

2

classroom she was evidently covering, would not be returning to work for health reasons. FAC

if 26.

Plaintiff agreed to this arrangement. FAC if 26.
Plaintiff alleges that she was effective in this position, performing tasks including

completing report cards, attending parent/teacher conferences, lesson planning, and classroom
management, and receiving approval from parents, the teacher assistant, the assistant principal,
and the principal herself. FAC ifif 27-28, 34. According to Plaintiff, in addition to the parties'
verbal agreement that she could remain in this position for the remainder of the 2013-2014
school year, DOE contract rules and United Federation of Teachers ("UFT") regulations gave her
the right to remain in this position for the subsequent school year as well. FAC ifif 1, 27.
Instead, according to the amended complaint, school administrators engaged in a series of
acts designed to harm Plaintiff and prevent her from working at PS 30M-or, eventually,
obtaining any further employment through the DOE. First, Principal Stinson directed a clerical
agent to tamper with the title of the assigned teaching position to make it appear as if Plaintiff
was not working in K-229. FAC if 29. Second, school administrators failed to offer her
adequate pay. Specifically, because Plaintiff had worked 30 consecutive days, she claims
agreements with the UFT and the DOE entitled her to a higher permanent salary or "Status Z"
pay. FAC iii! 29-30. Despite Plaintiffs repeated requests to revise her assignment or increase
her pay, Defendants declined. FAC ifif 30-32. Plaintiff was also not paid for working through
preps and lunches. FAC if 39. Though they claimed these decisions were based on budgetary
shortfalls, Defendants were able to hire a new full-time Kindergarten teacher around the same
time. FAC if 31.
In March 2014, Plaintiffs treatment worsened. According to Plaintiff, administrators
began to harass and bully her, "trying to force Plaintiff to cause tension with other staff." FAC

3

if 35.

Then they replaced Plaintiff in her position in K-229: the payroll secretary informed

Plaintiff that she was required to take a day off, and Ms. Stinson hired friends to work the
remainder of the 2014 term in K-229. FAC ifif 38-40. As a result, Plaintiff claims she was
forced back onto the per diem list, where she could only obtain lower-paying substitute teaching
positions. FAC if 41. Finally, administrators gave the New York City Department of Education
a memo assigning Plaintiff a "U" rating, indicating that she was unqualified for a teaching
position. FAC if 36. Though the memo was dated around June 9, 2014, Plaintiff alleges that it
was either filed secretly or back-dated because it did not appear in the DOE's system until
September. FAC ifif 36, 48. When September arrived, administrators hired a much younger
teacher who was less qualified than Plaintiff to take over K-229. FAC if 42. And because of the
"U" rating, Plaintiff was informed that she was terminated from any employment with DOE.
FAC if 48. Plaintiff claims that she then was unable to obtain employment anywhere in the
educational system, including with community-based organizations, day care centers, and other
vendors, and experienced irreparable damage and mental anguish. FAC ifif 1, 15.
In addition to the incidents at PS 30M, both before and after her employment there,
Plaintiff claims that she was repeatedly passed over for full-time teaching responsibilities at
different New York public schools. FAC if 4. Despite receiving praise from coworkers and
administrators, she contends that school administrators repeatedly, and allegedly falsely, told her
that she could not be hired for budgetary reasons. FAC ifif 4, 6. Plaintiff nonetheless observed
other teachers who were younger and possessed fewer credentials receiving positions. FAC ifif 4,
6.

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On the basis of these facts, Plaintiff claims that Defendants denied her employment
because of age and race and retaliated against her in violation of Title VII, the ADEA, the
NYSHRL, and the NYCHRL.

B.

Procedural Background

At some point after the above-described facts occurred, but on her representation "not
over the 300-day deadline," Ms. Williams filed an Equal Employment Opportunity Commission
("EEOC") complaint. PAC ilil 9, 11. The EEOC then issued a right-to-sue letter noting that it
had investigated Plaintiffs charge of age discrimination against the DOE and was unable to
conclude that the DOE's conduct violated federal antidiscrimination laws. Id. & Exhibits at 5.
Though the letter was dated November 29, 2016, id., Plaintiff claims that the EEOC notice "had
an EEOC company meter strip on it dated around December 5, 2016" and "arrived at Plaintiffs
residence on or around December 19, 2016." PAC ii 9. Plaintiff claims the delay was caused by
holiday mail volume. PAC ii 9.
Plaintiff filed her original complaint on March 17, 2017, see Dkt. No. 2, and on August 1,
2017, Defendants filed their initial motion to dismiss. See Dkt. No. 17. On September 22, 2017,
Plaintiff filed her amended complaint, and on November 6, 2017 Defendants filed the motion to
dismiss presently before this Court. Dkt. Nos. 35, 41.

II.

Discussion
Plaintiff asserts disparate treatment and retaliation claims under Title VII, the ADEA, the

NYCHRL, and the NYSHRL.

A.

Procedural Hurdles to Plaintiff's Federal Claims

The Court turns first to procedural hurdles facing Plaintiffs federal claims. Defendants
argue that Plaintiffs Title VII and ADEA claims should be dismissed because the statutes do not

5

allow for individual liability and because the claims are untimely and not administratively
exhausted.
Evaluating these arguments, the Court concludes that Plaintiffs Title VII claims against
both Defendants and her ADEA claims against Ms. Stinson must be dismissed. But the Court
declines to dismiss Plaintiffs ADEA discrimination or retaliation claims against the DOE.
1.

Administrative Exhaustion under Title VII and the ADEA

Exhaustion of administrative remedies is a "precondition to suit" under Title VII or the
ADEA. Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 82-83 (2d Cir. 2001). Courts will deem
administrative remedies sufficiently exhausted for claims brought before the EEOC as well as
additional claims that are "reasonably related to those that were filed with the agency." Deravin
v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003). To determine whether claims are reasonably related,
the court must examine "the factual allegations made in the EEOC charge itself." Id. at 201.
Particularly in a case brought by a pro se plaintiff, "it is the substance of the charge and not the
label that controls" the court's determination whether a given charge was properly presented to
the EEOC. Wallace v. Seacrest Linen, No. 04-CV-6035 (GBD), 2006 WL 2192777, at *2
(S.D.N.Y. Aug. 2, 2006) (quoting Alonzo v. Chase Manhattan Bank, NA., 25 F. Supp. 2d 455,
458 (S.D.N.Y. 1998)). But even given this liberal standard, failing to check a box alleging a
particular type of discrimination, or alleging one type of discrimination and not another, is
generally not sufficient to meet the administrative exhaustion requirement with respect to the
omitted allegation. See, e.g., id.; Moultrie v. VIP Health Care Servs., No. 08-CV-0457 (DLI),
2009 WL 750219, at *3 (E.D.N.Y. Mar. 19, 2009), aff'd 412 F. App'x 382 (2d Cir. 2011)
(summary order).

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In this case, Defendants argue that Ms. Williams failed to exhaust administrative
remedies regarding her Title VII and ADEA retaliation claims by failing to include those claims
in her EEOC charge. Dkt. No. 42, Def. Br. at 2, 11-12.
As neither party filed Plaintiffs EEOC charge with its submission, the Court can only
draw on the complaint and the EEOC' s notice of dismissal in evaluating this argument. These
materials do not indicate that Plaintiff exhausted her administrative remedies with respect to her
Title VII claim. As Defendants point out, the EEOC notice refers only to its investigation of
Plaintiffs claims of "discrimination ... on the basis of ... age," Def. Br. at 12 (citing FAC if
21 ), suggesting that Plaintiff may not have included race discrimination in her charge. Plaintiffs
complaint does not plead otherwise; indeed, it does not specify Plaintiffs race at all, and only
mentions race discrimination in passing. See FAC if 3 (stating that "Plaintiff has
documentation/records of being ... passed over for ... persons of other ethnicities/nationalities
... due to age and not excluding race"); FAC if 13 (referring to videos referencing racism at the
EEOC); FAC if 14 ("Plaintiff ... was wrongfully denied employment based on age, (but not
excluding race, under Title VII)."). Even construing the Plaintiffs prose pleading liberally,
taking these statements as true, and drawing all reasonable inferences in her favor, the Court
cannot find these minimal references sufficient to plead that Plaintiff raised her race
discrimination claims with the EEOC. Nor are her race discrimination claims reasonably related
to her properly exhausted age discrimination claims.
It is not clear whether this logic extends to dismissal of Plaintiffs ADEA retaliation

claim. It is true that the EEOC notice refers only to "discrimination" on the basis of age, and not
retaliation. But Plaintiff might argue that, in the absence of the charge or EEOC file, this is an
insufficient basis for concluding that Plaintiff failed to raise retaliation claims with the EEOC-

7

particularly when Plaintiffs complaint repeatedly alleges retaliation, and does so with some
specificity. See FAC ifif 1, 2, 14, 19, 36. The Court need not address the merits of this argument
because the Court concludes infra that Plaintiffs retaliation claims must be dismissed for failure
to state a claim.
Accordingly, Plaintiffs Title VII claims against the DOE and Ms. Stinson are
DISMISSED.

2.

Individual Liability under the ADEA

The Court next turns to Defendants' arguments for dismissing Plaintiffs ADEA claims.
In this circuit, it is long settled that individual defendants may not be subject to liability under
Title VII. Patterson v. Cnty. of Oneida, 375 F.3d 206, 221 (2d Cir. 2004). As the Second
Circuit explained in Tomka v. Seiler Corp., Title VII's statutory scheme of protecting small
employers and awarding remedies like backpay and reinstatement is incompatible with treating
agents as statutory employers. 66 F.3d 1295, 1313-17 (2d Cir. 1995), abrogated on other

grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).
The same logic applies to the ADEA. Although the ADEA is a "hybrid statute" created
from remedies provided under both Title VII and FLSA, "[a]s far as the term 'employer' is
concerned, the ADEA was modeled after Title VIL"' Wray v. Edward Blank Assocs., Inc., 924
F. Supp. 498, 503 (S.D.N.Y. 1996). Compare 42 U.S.C. § 2000e(b) with 29 U.S.C. § 623(a)(l).
Courts in this circuit have therefore consistently found that the ADEA, like Title VII, does not
impose liability on individuals. Wang v. Palmisano, 51 F. Supp. 3d 521, 537 (S.D.N.Y. 2014)
(collecting cases); Sulehria v. New York, No. 13-CV-6990 (AJN), 2014 WL 4716084, at *4 n.3
(S.D.N.Y. Sept. 19, 2014); see also Guerra v. Jones, 421 F. App'x 15, 17 (2d Cir. 2011)

8

(summary order) (noting that the ADEA does not "subject[] individuals, even those with
supervisory authority over the plaintiff, to personal liability").
Accordingly, Plaintiff's ADEA claims against Ms. Stinson are DISMISSED.

3.

Timeliness of ADEA Claims Against DOE

The ADEA imposes two timing requirements on complainants. In a deferral state like
New York, which possesses its own age discrimination laws and enforcement authorities,
individuals aggrieved by acts of discrimination have "3 00 days [from the alleged discriminatory
action] to file an ADEA charge with the EEOC, whether or not the charge is initially filed with
the deferral-state agency." Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 328 (2d Cir. 1999)
(citing 26 U.S.C. §§ 626(d)(2), 633(b)). Second, "a claim under ... the ADEA must be filed
within 90 days of the claimant's receipt of a right-to-sue letter." Sherlock v. Montefiore Medical

Ctr., 84 F .3d 522, 525 (2d Cir. 1996).
Defendants contend that Ms. Williams missed both deadlines: they claim she failed to
commence her action within 90 days of receiving her right-to-sue letter from the EEOC and she
failed to file an EEOC charge within 180-or even 300-days of any alleged discriminatory
acts. Def. Br. at 2; Reply, Dkt. No. 47 at 4. The Court rejects both arguments.

a.

Timely EEOC Charge Filing

The operative EEOC filing window in this deferral-state ADEA case is 300 days from
each alleged discriminatory act. Tewksbury, 192 F.3d at 328. Defendants' contention that a 180day statute of limitations applies is incorrect. Defendants base this filing window on (a) the
contention that Tewksbury applied the Title VII statute of limitations to the ADEA and (b) the
assumption that only a 180-day window would apply to a Title VII case, despite the fact that
deferral agency worksharing agreements typically circumvent the shorter timeline. Tewksbury,

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192 F.3d at 326-27; Fitzgerald v. Ford Marrin Esposito Witmeyer & Gieser, L.L.P., 37 F. Supp.
2d 621, 624-25 (S.D.N.Y. 1999) (collecting cases); see also 29 C.F.R. § 1626.lO(c) ("When a
worksharing agreement with a state agency is in effect ... "[c]harges received by one agency
under the agreement shall be deemed received by the other agency for [timeliness] purposes.").
As Tewksbury makes clear, both positions are erroneous.
With respect to the 300-day filing window, "the burden of pleading and proving Title VII
exhaustion lies with defendants and operates as an affirmative defense." Hardaway v. Hartford

Pub. Works Dep 't, 879 F.3d 486, 490 (2d Cir. 2018); see also Kane v. St. Raymond's Roman
Catholic Church, No. 14-CV-7028 (AJN), 2015 WL 4270757, at *5 (July 13, 2015 S.D.N.Y.)
(noting that "a court will not usually dismiss a claim for failure to timely file an EEOC charge
unless such failure is apparent from the face of the complaint"). Because "the administrative
exhaustion requirement is the same under the ADEA as it is under Title II," the same burden
allocation applies to ADEA cases. See Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003)
What events trigger the running of the filing period depends upon the type of act alleged
by the plaintiff. When the plaintiff alleges a "discrete act" of employment discrimination,
including termination, failure to promote, denial of transfer, or refusal to hire, each act triggers
the running of the limitations period. Anyanwu v. City ofNew York, No. 10-CV-8498 (AJN),
2013 WL 5193990, at *9 (S.D.N.Y. Sept. 16, 2018) (citing Nat'! R.R. Passenger Corp. v.

Morgan, 526 U.S. 101, 114 (2002)). When, by contrast, the plaintiff alleges a continuing
violation like hostile work environment, she "need only show that part of the violation took place
within the limitations period." Id.
Plaintiffs complaint, even read generously, alleges only discrete acts, and not a
continuing violation. Specifically, it appears to allege age discrimination based on failure to

10

promote or refusal to hire the plaintiff as a full-time kindergarten teacher, or termination or
demotion from either full-time or per diem employment, which events apparently occurred on
March 20, 2014; June 9, 2014; and "on or around September 2014." FAC ifif 36, 38, 42. These
are quintessentially discrete acts that each must be measured against the statute of limitations.
Chin v. Port Authority ofNY. & NJ., 685 F.3d 135, 156 (2d Cir. 2012). It is true that Plaintiff
marshals some allegations about bullying, which sometimes gives rise to hostile work
environment claims. But her conclusory statements-without any accompanying allegations the
bullying remarks were connected to her age-are an insufficient factual basis for the Court to
infer her work environment was "permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently pervasive to alter the conditions of the victim's employment." Kassner, 496
F.3d at 240--41; see also De la Cruz v. City ofNew York, 783 F. Supp. 2d 622, 639 (S.D.N.Y.
2011) ("Mere 'workplace bullying,' ... is not enough to give rise to an actionable hostile work
environment claim. Rather, there must be a showing that the conduct occurred because of the
employee's membership in a protected class.").
Apart from misstating the statute of limitations, Defendants argue that Plaintiffs EEOC
charge was not filed in a timely manner because she failed to allege when she filed it. Def. Br. at
3, 10. This is true as far as it goes: Plaintiff omitted her charge and merely pled that she was
"not over the 300-day deadline." FAC if 11. The only other information in the amended
complaint going to Plaintiffs filing date is the fact that the EEOC charge has a charge number
dated to 2015. See FAC at 21. But under the obligation to take Plaintiffs allegations as true and
to construe them liberally, and in light of the burden on Defendants to prove that the claim was
not timely filed, the Court cannot conclude that discrete acts of discrimination occurring fewer

11

than 300 days prior to the beginning of 2015-that is, after than March 7, 2014-are timebarred.
This window permits the primary discrete employment decisions at issue in the amended
complaint. To the extent the amended complaint alleges discrimination based on DOE's actions
outside that window-that is (a) tampering with Plaintiffs title, FAC if 29, (b) failing to pay
Plaintiff permanent salary or status Z pay, FAC ifif 29-30, (c) failing to pay Plaintiff for working
preps and lunches, FAC if 39, and (d) incidents of alleged discrimination in hiring at other DOE
schools, FAC if 4-claims with respect to those actions are untimely and are DISMISSED.

b.

Timely Federal Complaint Filing

"There is a presumption that notice provided by a government agency was mailed on the
date shown on the notice" and "received three days after its mailing." Tiberio v. Allergy Asthma

Immunology of Rochester, 664 F.3d 35, 37 (2d Cir. 2011); see also Fed. R. Civ. P. 6(d). The
receipt presumption may be rebutted or rendered not dispositive by "sworn testimony or other
admissible evidence from which it could reasonably be inferred either that the notice was mailed
later than its typewritten date or that it took longer than three days to reach [the recipient] by
mail." Sherlock, 84 F.3d at 526. A "self-serving date of notation" or other "unsupported
allegation" that a document was received outside the three-day window may not constitute
sufficient rebuttal. Id. at 526; Johnson v. St. Barnabas Nursing Home, 368 F. App'x 246, 248
(2d Cir. 2010) (summary order). But because courts must accept as true all allegations in the
complaint and draw allegations in the light most favorable to the plaintiff, "courts in this circuit
have repeatedly held that an allegation of the date of receipt of a right-to-sue letter must be
credited as true on a motion to dismiss." Avillan v. Brennan, No. 16-CV-5611 (AJN), Dkt. No.
19, at 9 (S.D.N.Y. Sept. 15, 2017) (quoting Williams v. City ofNew York, No. 12-CV-8518

12

(RJS), 2014 WL 1383661, at *10 (S.D.N.Y. Mar. 26, 2014)); see also Williams, 2014 WL
1383661, at *10 (collecting cases), aff'd, 602 F. App'x 28 (2d Cir. 2015) (summary order). But
see Martinez v. Riverbay Corp., No. 16-CV-0547 (KPF), 2016 WL 5818594, at *4 (Oct. 4, 2016)

(requiring "firm substantiation when a plaintiff contends that he received the right to sue letter
more than three days after its mailing).
In this case, Plaintiff provides barely more than an unsupported allegation of late receipt
by pointing to the date on the meter strip and the holiday season to explain why she received her
right-to-sue letter "on or about December 19, 2016"-several weeks after the date on the EEOC
papers and 88 days prior to the filing of her federal complaint. See FAC if 9. Nonetheless, in the
motion to dismiss posture, and in light of the dictate to construe the pleadings in a pro se case
liberally, the Court finds these allegations sufficient-for now-to forestall dismissal.
B.

Procedural Hurdles to Plaintiff's State Law Claims

Defendants next argue that Plaintiffs NYCHRL and NYSHRL claims should be
dismissed because she failed to file the requisite notice of claim and because her federal filing as
to these claims was untimely. On the basis of the notice of claim argument, the Court grants
Defendants' motion to dismiss with respect to the DOE. But because Ms. Stinson is not covered
by the relevant statutes, the Court denies the motion to dismiss as to all claims against her.
1.

Failure to File Notice of Claim

Under New York Education Law, no action or claim may be maintained against the DOE,
a school, or any officer thereof "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
proceeding is founded was presented to the governing body of said district or school within three
months after the accrual of such claim." N.Y. EDUC. LAW§ 3813(1). "Compliance with Section

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3813(1) is a prerequisite for a suit naming a school district or its officers, and a plaintiffs failure
to plead compliance with New York's notice of claim requirements mandates dismissal," and
must be ascertained by federal as well as state courts. Lewinter v. NY. C. Dep 't ofEduc., No. 13CV-3253 (NSR), 2010 WL 2746334, at *2 (S.D.N.Y. July 9, 2010). This provision applies to
claims brought under either city or state law. Thomas v. NY. C. Dep 't of Educ., 93 8 F. Supp. 2d
334, 360 (E.D.N.Y. 2013). It does not, however, apply to school principals, who are not officers
within the scope of§ 3813(1).
Here, Plaintiffs amended complaint neither pleads nor proves that she filed the requisite
notice of claim. Although some courts have held that filing an EEOC complaint may
substantially comply with the notice of claim requirement, see, e.g., Donlon v. Bd. ofEduc. of

Greece Cent. Sch. Dist., No. 06-CV-6027T, 2007 WL 108470 at *2-3 (W.D.N.Y. Jan 12, 2007),
such notice presumably must occur within the three-month time window. As there is no basis for
the Court to conclude that Plaintiffs EEOC complaint was filed prior to January 1, 2015, the
Court cannot find Plaintiff gave the District timely notice of her claims against it and its agents.
Accordingly, the§ 3813(1) bar applies, and her claims under the NYCHRL and NYSHRL are
hereby DISMISSED.

2.

Failure to Timely File Complaint

Defendants further contend that Plaintiffs federal filing of her NYCHRL and NYSHRL
claims was untimely under New York Education Law. Def. Br. at 7. As applied to Plaintiffs
remaining claims against Principal Stinson, the Court rejects this argument.
It is true that New York Education Law provides a one-year statute of limitations for

filing any action or special proceeding against "officers of a school district, board of education,
board of cooperative educational services, or school." Edwards v. Jericho Union Free Sch. Dist.,

14

904 F. Supp. 2d 294, 303 (E.D.N.Y. Nov. 16, 2012) (citing N.Y. Educ. Law§ 3813(2-b)). But
as with the notice of claim filing requirement, "it is well-settled that school principals ... are not
'officers' of the District or Board within the meaning of the statute." Id. (citing cases).
Therefore, the Court declines to dismiss claims against Ms. Stinson on this basis.

C.

Facial Plausibility of Plaintiff's Remaining Claims

The Court finally turns to Defendants' contention that Plaintiffs remaining claims are
facially implausible. To survive a motion to dismiss, a plaintiff must plead "sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks omitted). A claim is facially plausible
"when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Id. Although pro se complaints must be
construed liberally and interpreted to raise the strongest argument they suggest, "threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (quotations and citation
omitted).
The Court concludes that Plaintiffs age discrimination claim, construed as a termination
or demotion claim, meets this standard. However, her retaliation claims do not. As a further
preliminary matter, the Court concludes that Plaintiffs amended complaint fails to state a claim
of race discrimination against Ms. Stinson under the NYCHRL and NYSHRL because Plaintiff
neglects to plead any facts from which the Court could infer her race or that race was a factor in
any of the timely conduct alleged in her complaint. See supra n.1 and Part II.A.1. Accordingly,
Plaintiffs ADEA, NYCHRL, and NYSHRL retaliation claims and Plaintiffs NYCHRL and
NYSHRL race discrimination claims against Ms. Stinson are DISMISSED.

15

1.

Claims Based on Age

"For the most part, age discrimination claims under the ADEA, NYSHRL, and NYCHRL
are analyzed under the same standard." Delville v. Firmenich Inc., 920 F. Supp. 2d 446, 458 n.7
(S.D.N.Y. 2013). Accordingly, unless otherwise noticed, the following discussion extends to
Plaintiffs remaining state law claims against Principal Stinson.

a.

Discrimination Claims

To state an age discrimination claim, "a plaintiff must plead facts that, if true, lead to a
plausible inference that the plaintiff suffered an adverse employment action because she
possesses the protected characteristic alleged in the lawsuit"-here, age. Kane v. St. Raymond's

Roman Catholic Church, No. 14-CV-7028 (AJN), 2015 WL 4270757 at *6 (S.D.N.Y. July 13,
2015) (citing Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007); see also Brown v. Henderson,
257 F.3d 246, 252 (2d Cir. 2001) ("It is axiomatic that mistreatment at work ... is actionable
under Title VII [or the ADEA] only when it occurs because of an employee's ... protected
characteristic"). At the pleading stage, a Plaintiff "must provide 'at least minimal support for the
proposition that the employer was motivated by discriminatory intent."' Vega v. Hempstead

Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015) (quoting Littlejohn v. City ofNew York,
795 F.3d 297, 311 (2d Cir.)). And, in an ADEA case, the Plaintiff must allege that age was the
but-for cause of the employer's action. Id at 86. 2
"An inference of discrimination can arise from circumstances including, but not limited
to, 'the employer's criticism of the plaintiff's performance in [age-related] degrading terms; or

2

Courts disagree as to whether the but-for causation standard applies to NYCHRL and NYSHRL as well as
federal age discrimination claims. Compare Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105 n.6 (2d Cir.
2010) (assuming, without deciding, that the but-for standard so extends) with De/ville, 920 F. Supp. 2d at 458 n.8
(citing New York state cases reaching the opposite conclusion). Because Plaintiffs claims survive the more
stringent federal standard, any differences are not relevant to the outcome of this motion to dismiss.

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its invidious comments about others in the employee's protected group; or the more favorable
treatment of employees not in the protected group; or the sequence of events leading to the
plaintiffs discharge." Littlejohn, 795 F.3d at 312 (2d Cir. 2015) (quoting Leibowitz v. Cornell

Univ., 584 F.3d 487, 502 (2d Cir. 2009)). Or it can arise "when an employer replaces a
terminated or demoted employee with an individual outside the employee's protected class."

Littlejohn, 795 F.3d at 312-13 (citing Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir.
2000)); Franchino v. Terence Cardinal Cook Health Care Ctr., 692 F. App'x 39, 41-42 (2d Cir.
2017) (summary order) (applying this principle to an ADEA case). At the pleading stage, "the
evidence necessary to satisfy th[is] initial burden ... is minimal." Littlejohn, 795 F.3d at 313
(quoting Zimmermann v. Assocs. First Capital Corp., 251F.3d376, 381 (2d Cir. 2001)). This
minimal burden is satisfied with respect to Plaintiffs allegations that she was terminated or
demoted from the 2014-2015 position.
Plaintiffs surviving allegations point to a series of possible adverse employment actions:
(a) failing to pay Plaintiff permanent salary or status Z pay from the period of March 7 to March
20, FAC ifif 29-30, (b) failing to pay Plaintiff for working preps and lunches for the period from
March 7 to March 20, F AC if 39, (c) harassing and bullying Plaintiff, FAC if 35, (d) forcing
Plaintiff to depart her position in K-229 in March 2014, FAC if 39 (e) failing to hire or promote
Plaintiff to a permanent Kindergarten position for the 2014-2015 school year, see FAC if 42, and
(f) giving Plaintiff a "U" rating, F AC if 36.
To attempt to connect these allegations of mistreatment at work to her protected class,
Plaintiff identifies four pieces of age-specific information: (a) that in September 2014, a younger
teacher was ultimately hired for the 2014-2015 school year position, FAC if 42; (b) the fact of her
own age; (c) that in January or February 2014, when Plaintiff was told there was no money in the

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budget to give her status Z pay, a younger teacher was hired, FAC if 31; and (d) that younger,
less qualified individuals were hired at other schools, FAC if 6. Only the first is pertinent. That
plaintiff is over 40 and experienced mistreatment at work is not, without more, enough to state a
claim of age discrimination. See Henderson, 257 F .3d at 252. And comparators who were hired
prior to any plausible complaint-filing window cannot support an inference of discrimination
with respect to any of Plaintiffs remaining claims. Similarly, without more, a comparator who
was hired into a position to which Plaintiff does not allege she applied is insufficiently similarly
situated to raise an inference of discrimination. See Brown v. Daikin Am. Inc., 756 F.3d 219, 230
(2d Cir. 2014) ("To establish an inference of discrimination, a plaintiff must allege that she was
similarly situated in all material respects to the individuals with whom she seeks to compare
herself.") (internal quotation marks omitted).
Standing alone, the 2014-2015 hire is a thin basis for the Court to infer that
discriminatory intent-rather than personal dislike, frustration with Plaintiffs frequent questions
about pay, or an effort to save money-was a but-for cause of her treatment, particularly as far as
pay policy decisions are concerned. But if the Court accepts as true Plaintiffs contention that
she was entitled to return for the subsequent school year, Defendants' decision to ask her to leave
in March appears to be a demotion or termination decision. It is settled law in this circuit that
replacement of a terminated or demoted employee by a less qualified member outside the
protected class is all of the basis necessary, at this stage, to raise a plausible inference of
discrimination. See Littlejohn, 795 F.3d at 312-13.
The remaining question is whether either the delay in Plaintiffs replacement or the fact
that Plaintiff was replaced on a temporary basis with persons she has not pled were younger than
her are sufficient to undercut the ordinary inference. Under the obligation to draw inferences in

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Plaintiffs favor, the Court cannot conclude that they are. A delay of several months generally is
not sufficient to excuse an employer's replacement of a terminated employee with a new hire
outside her protected class, see Wolfe v. Time, Inc., 702 F. Supp. 1045, 1048 (S.D.N.Y. 1989)
(finding ten months between firing and replacement hire sufficient to preclude summary
judgment)--especially if, as here, Plaintiff alleges that the new hire was less qualified than she
was, and ifthe delay is explained by the school year calendar. And courts may look to the age of
either a temporary or a permanent replacement in evaluating whether an inference of
discrimination is appropriate. See Hollander v. Am. Cynamid Co., 172 F .3d 192, 199 n.3 (2d Cir.
19) (noting plaintiff established prima facie case of age discrimination despite the fact that
temporary replacement was not sufficiently younger to raise inference of age discrimination),
abrogated on other grounds by Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000); Lewis

v. St. Cloud Univ., 467 F.3d 1133, 1136 (8th Cir. 2006); Mercer v. Capitol Mgmt. & Realty, Inc.,
242 F. App'x 162, 163 (5th Cir. 2007).
Defendants make two arguments to the contrary. First, they contend that Plaintiff does
not plead that she applied for the September position. This conclusion requires ignoring
Plaintiffs evident claim that she did not have to apply and ungenerously reading Plaintiffs pro
se complaint. The Court declines to do either.

Second, Defendants argue that "younger employees being hired for positions is not a
discriminatory act and cannot be sufficient grounds alone for age discrimination," and that
Plaintiffs claims accordingly should be dismissed. Def. Br. at 15. The cases Defendants cite do
not warrant this conclusion. Hollander noted only that hiring insignificantly younger workers
could not support an inference of age discrimination. 172 F.3d at 199 n.3. Yet even so, the court
concluded that the plaintiff could state a prima facie case based only on her replacement by (a) a

19

barely younger employee and (b) an employee hired several years later. Id. The allowance that
a replacement hire need not be much younger than the plaintiff-and need not immediately be
hired-supports the sufficiency of Plaintiffs claims more than it undercuts them. And the
Second Circuit's unpublished disposition in Feldman v. Looms concluded only that, at summary
judgment, replacement by a younger employee did not prove age discrimination. No. 98-9680,
1999 WL 973518, at *2 (2d Cir. Oct. 4, 1999) (summary order). That conclusion is not
sufficient to reject Plaintiffs claims at the motion to dismiss stage, particularly in light of the
Second Circuit's repeated admonitions that alleging replacement by or reassignment of duties to
employees outside the protected class raises an inference of discrimination. See Littlejohn, 795
F.3d at 312-13; Carlton, 202 F.3d at 135-36 (2d Cir. 2000).
This theory cannot, however, carry Plaintiff any further. Although Plaintiffs complaint
attributes several additional aspects of her employment with DOE to age discriminationharassment, PS 30M's pay practices, the "U" rating-it contains no factual allegations
suggesting that any of the foregoing were related to age.
Accordingly, Plaintiffs claim that she was discriminated against in her
termination/demotion from the PS 30M K-229 position, when she was entitled to return for the
2014-2015 school year-and this claim alone-survives this motion to dismiss. The claim is
adequately stated against the DOE under the ADEA and against Ms. Stinson under the NYSHRL
andNYCHRL.

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b.

Retaliation Claims

As a final matter, Plaintiff fails to adequately plead a retaliation claim under either the
ADEA or state and local law. 3
A prima facie case of retaliation under the ADEA has four elements: (1) the employee
engaged in protected activity, (2) the employer was aware of this activity, (3) the employer took
adverse action against the employee, and (4) a causal connection exists between the protected
activity and the adverse action. Cerni v. J.P. Morgan Secs. LLC, 208 F. Supp. 3d 533, 538
(S.D.N.Y. 2016) (citing Kessler v. Westchester Cty. Dep 't ofSoc. Servs., 461F.3d199, 205-06
(2d Cir. 2006)). "Protected activity" consists of opposing any practice made unlawful by the
ADEA or "participat[ing] in any manner in an investigation, proceeding, or litigation under this
chapter." 29 U.S.C. § 623(d). Opposing an unlawful practice includes a broad range of
activities, including letter-writing, picketing, or making public statements. Grant v. Hazelett
Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir. 1989) (citing cases). But raising complaints
that do not relate to the relevant statutorily protected discrimination does not qualify. Aspilaire
v. Wyeth Pharm., Inc., 612 F. Supp. 2d 289, 308-09 (S.D.N.Y. 2009); Benedith v. Malverne
Union Free Sch. Dist., 38 F. Supp. 3d 286, 322-23 (E.D.N.Y. 2014) (noting that informal
complaints to management are only sufficient to allege protected activity if they "make it clear
that the employee is complaining about conduct prohibited by [anti-discrimination] law").
Plaintiffs complaint fails to state a prima facie case at the first element, and does not
otherwise raise an inference of retaliatory action. Plaintiff supports her retaliation claim by
alleging that the DOE engaged in adverse actions against her in assigning her a "U" rating on

3

While the NYCHRL retaliation standard is more generous than the federal standard in some respects, it
maintains the same protected activity requirement that disposes of Plaintiffs federal retaliation claim. See Fincher
v. Depository Trust & Clearing Corp., 604 F.3d 712, 723 (2d Cir. 2010).

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June 9 and/or in September 2014 "in retaliation for speaking up as an older employee and
requesting proper pay and status to fulfill the kindergarten position." FAC if 36. Even construed
liberally, these facts fail to support any inference that Plaintiff was engaged in protected activity.
There is no suggestion in the amended complaint that the matters Plaintiff spoke up in regards to,
or PS 30M's pay policies, related in any way to age or to conduct made unlawful by the ADEA.
Though the range of protected activities is broad, it does not stretch this far.
Accordingly, Plaintiffs ADEA retaliation claims against the DOE and her NYSHRL and
NYCHRL retaliation claims against Ms. Stinson are DISMISSED.

III.

Conclusion
For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part and

DENIED in part. The motion to dismiss is granted with respect to (a) all of Plaintiffs race
discrimination claims under Title VII, the NYSHRL, and the NYCHRL; (b) Plaintiffs ADEA
claims against Ms. Stinson; (c) Plaintiffs NYSHRL and NYCHRL claims against the DOE;
(d) all of Plaintiffs retaliation claims under Title VII, the NYSHRL, and the NYCHRL; and (e)
any of Plaintiffs claims accruing prior to March 7, 2014 or predicated on allegations regarding
her pay, performance evaluation, or harassment. Accordingly, all such claims are hereby
DISMISSED. Because Plaintiff was previously afforded the opportunity to amend her
complaint, these claims are dismissed with prejudice.
However, the motion to dismiss is denied with respect to Plaintiffs remaining claims:
that the DOE demoted or terminated her from employment at PS 30M for the 2014-2015 school
year because of her age in violation of the ADEA, and that Ms. Stinson demoted or terminated
her from employment because of her age in violation of the NYCHRL and NYSHRL.

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The parties are reminded that this matter remains referred to Magistrate Judge Debra
Freeman for general pretrial. See Dkt. No. 7. By separate order, Judge Freeman may schedule a
case management conference.
As a final matter, the Court wishes to inform Plaintiff that a legal clinic operates in this
District to assist people who are parties in civil cases and do not have lawyers. The Clinic is run
by a private organization called the New York Legal Assistance Group; it is not part of, or run
by, the Court (and, among other things, therefore cannot accept filings on behalf of the Court,
which must still be made by any unrepresented party through the Pro Se Intake Unit). The Clinic
is located in the Thurgood Marshall United States Courthouse, 40 Centre Street, New York, New
York, in Room LL22, which is just inside the Pearl Street entrance to that Courthouse. The
Clinic is open on weekdays from 10 a.m. to 4 p.m., except on days when the Court is closed. An
unrepresented party can make an appointment in person or by calling 212-659-6190.
Chambers will mail a copy of this order to the pro se Plaintiff and note its mailing on the
public docket.
This resolves Dkt. No. 41.
SO ORDERED.
Dated: September _ _, 2018
New York, New York

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