Rivera v. Board of Education of the City School District of the City of New York
OPINION AND ORDER re: 29 MOTION to Dismiss . filed by Board of Education of the City. For the foregoing reasons, Defendant's motion to dismiss the Amended Complaint is granted. Plaintiff has not requested leave to file a Second Amended Complaint. And in light of the guidance this Court provided in Rivera I regarding the filing of amended pleadings, the Court does not believe further amendment would remedy the pleading deficiencies outlined in this Opinion. See Binn v. Ber nstein, No. 19 Civ. 6122 (GHW) (SLC), 2020 WL 4550312, at *34 (S.D.N.Y. July 13, 2020) ("To grant Plaintiffs leave to amend would be allowing them a 'third bite at the apple,' which courts in this district routinely deny." (collec ting cases)), report and recommendation adopted, 2020 WL 4547167 (S.D.N.Y. Aug. 6, 2020); see generally Gorman v. Covidien Sales, LLC, No. 13 Civ. 6486 (KPF), 2014 WL 7404071, at *2 (S.D.N.Y. Dec. 31, 2014) (noting that "it remains 'proper to deny leave to replead where... amendment would be futile'" (citing Hunt v. Alliance N. Am. Gov't Income Trust, Inc., 159 F.3d 723, 728 (2d Cir. 1998))). Accordingly, Plaintiff's claims against the DOE are dismissed with prejudi ce. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. SO ORDERED. (Signed by Judge Katherine Polk Failla on 11/18/2021) (rro) Transmission to Orders and Judgments Clerk for processing.
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 1 of 24
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
19 Civ. 11624 (KPF)
BOARD OF EDUCATION OF THE CITY SCHOOL
DISTRICT OF THE CITY OF NEW YORK, a/k/a
THE NEW YORK CITY DEPARTMENT OF
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
Plaintiff Victor Rivera, a public school teacher, brings suit against his
employer, Defendant New York City Department of Education (the “DOE”),
pursuant to 42 U.S.C. § 1983, for race- and national origin-based
discrimination and retaliation at his school. In this second round of motion
practice, Defendant seeks to dismiss Plaintiff’s Amended Complaint for his
failure to plausibly allege: (i) the existence of a discriminatory policy or practice
that can be attributed to the DOE or (ii) sufficiently severe or pervasive conduct
to sustain a hostile work environment claim. For the reasons set forth in the
remainder of this Opinion, the Court grants Defendant’s motion.
Plaintiff identifies as an Hispanic man of Latino-Puerto Rican heritage.
(Am. Compl. ¶ 9). He began working as a history teacher at A.P. Randolph
The facts in this Opinion are drawn from Plaintiff’s Amended Complaint (“Am. Compl.”
(Dkt. #23)), the well-pleaded allegations of which are taken as true for purposes of this
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 2 of 24
High School (the “School”) in or around 2010. (Id. at ¶ 14). Approximately one
year after Plaintiff began teaching at the School, David Fanning was named the
School’s principal. (Id. at ¶ 18). Around the same time in 2011, Plaintiff was
elevated to a School dean position. (Id. at ¶¶ 15, 18). During Plaintiff’s tenure
as dean, his direct supervisor was the School’s Head of Security, Rhonda
Pekow. (Id. at ¶ 15). Plaintiff’s deanship ended following the 2015-2016
academic year, but he has continued to teach at the School. (Id. at ¶¶ 35-36).
From the 2018-2019 academic year through the present, Plaintiff’s immediate
supervisor has been the School’s Assistant Principal of the Humanities
Department, Kierra Foster-Ba. (Id. at ¶¶ 42, 76). 2 Plaintiff alleges that he has
experienced a hostile work environment throughout his tenure at the School.
Allegations of Discrimination from 2011 to 2016 3
Plaintiff asserts that since Fanning became principal in 2011, he
“condoned and, in fact, fostered an environment replete with racial bias.” (Am.
motion. See Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008); see
also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Court also relies on the exhibits
attached to the Declaration of Christin M. Nierman submitted in support of Defendant’s
motion to dismiss (“Nierman Decl., Ex. [ ]” (Dkt. #30)), as they consist of pertinent court
filings of which the Court may take judicial notice. See In re Enron Corp., 379 B.R. 425,
431 n.18 (S.D.N.Y. 2007); see generally Fed. R. Evid. 201.
For ease of reference, the Court refers to Defendant’s memorandum of law in support of
its motion to dismiss as “Def. Br.” (Dkt. #31); Plaintiff’s opposition to Defendant’s
motion to dismiss as “Pl. Opp.” (Dkt. #34); and Defendant’s reply brief as “Def. Reply”
The Court was unable to locate Foster-Ba’s first name in the record on this motion, but
obtained it from the School’s webpage. See https://www.aprandolph.com/apps/staff/
(last visited Nov. 15, 2021).
In its Order of December 21, 2020, the Court granted Defendant’s first motion to
dismiss based on the untimeliness of Plaintiff’s claims that accrued prior to
December 19, 2016, or three years prior to the filing of the Complaint. (Dkt. #21). In
that same Order, the Court granted Plaintiff leave to amend his pleadings to include
timely allegations in support of his hostile work environment claims. (Id. at 26).
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 3 of 24
Compl. ¶ 21). Plaintiff alleges that Fanning has engaged in several different
forms of discrimination directed at Plaintiff and others at the School. For one,
Plaintiff claims that Fanning has repeatedly stereotyped minority students,
including by referring to them as “ghetto” and pronouncing that such students
would “never amount to anything positive.” (Id. at ¶ 22). Plaintiff also notes
that he has been a target of Fanning’s discriminatory ire on numerous
occasions, one manifestation of which was Fanning’s singling Plaintiff out for
heightened scrutiny and surveillance. (Id. at ¶¶ 26-27). According to Plaintiff,
Fanning “instructed many of the administrators at the School to follow and
stalk [Plaintiff] during work hours in an effort to watch over [him].” (Id. at
¶ 28). Plaintiff further alleges that Fanning has often treated him differently
than his non-Hispanic colleagues, for example, by affording others “better
professional opportunities and equipment to fulfill their job duties.” (Id. at
¶ 30). Throughout this period, Plaintiff states that he lodged verbal complaints
to his superiors about Fanning’s discriminatory conduct, but that no action
was ever taken against Fanning. (Id. at ¶¶ 31, 33-34).
Allegations of Discrimination from 2017 to the Present
After completing his service as a School dean, Plaintiff continued to teach
during the 2016-2017 academic year, but the situation at the School did not
improve. (Am. Compl. ¶ 36). Confronted with what he describes as a “caustic
and unlivable work environment,” Plaintiff opted to go on sabbatical for the
2017-2018 school year. (Id. at ¶ 38). On or about September 25, 2017, while
on sabbatical, Plaintiff served a Notice of Claim upon Defendant and Fanning,
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 4 of 24
alleging discrimination based on Plaintiff’s race and national origin and
retaliation in response to Plaintiff’s complaints against Fanning’s
discriminatory conduct. (Id. at ¶¶ 4, 40). On or about December 21, 2018,
Plaintiff commenced an action in the New York State Supreme Court, New York
County, alleging race discrimination and retaliation against Defendant and
Fanning. (Id. at ¶¶ 6, 41). 4
Upon his return from sabbatical at the beginning of the 2018-2019
academic year, Plaintiff continued to feel that he was being “treated as a
second-class citizen in the workplace.” (Am. Compl. ¶¶ 42-44). As discussed
in greater depth below, Plaintiff alleges that Fanning continued to discriminate
against him in several ways, including by: (i) making derogatory comments
about Plaintiff; (ii) personally escalating his surveillance of Plaintiff; (iii) exerting
pressure on others to lower Plaintiff’s job performance ratings; (iv) assigning
Plaintiff an inordinate number of undesirable work assignments; (v) denying
Plaintiff access to School resources that he afforded to others; and (vi) rejecting
Plaintiff’s application to serve a second term as a School dean.
First, Plaintiff alleges that Fanning and Pekow made multiple derogatory
and racist comments about him, both in and out of Plaintiff’s presence. For
instance, Plaintiff alleges that Fanning remarked to School colleagues that
Plaintiff did not “have the balls” to return to the School after his sabbatical.
On October 21, 2019, after nearly a year of litigation that included motion practice,
Plaintiff’s state court case was terminated with the filing of a stipulation of dismissal.
(See Nierman Decl., Ex. B; see also Am Compl. ¶ 7). This stipulation dismissed
Plaintiff’s claims against Fanning with prejudice and those against the DOE without
prejudice. (See Nierman Decl., Ex. B).
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 5 of 24
(Am. Compl. ¶ 43). As another example, in or around September 2019, Plaintiff
sustained injuries to his head and face after breaking up a fight between two
students. (Id. at ¶¶ 55-56). Despite the School principal’s usual practice of
lending support to staff involved in such an altercation, Fanning declined to do
the same for Plaintiff, stating, “I have no time to console that Black Puerto
Rican, he is tough.” (Id. at ¶¶ 57-58). And in or around September 2019,
Plaintiff learned of several disapproving comments made by Pekow about
Plaintiff’s interracial relationship, including: “[Plaintiff] has no business dating
such a beautiful woman, he is too black for her”; “can you imagine if they have
babies?”; and it was “disgusting to see them walking together.” (Id. at ¶¶ 7071). After Plaintiff reported these comments to Fanning and Foster-Ba,
Fanning said he would investigate the incident; but, according to Plaintiff,
Fanning never did anything to investigate the incident. (Id. at ¶¶ 72-73). By
way of a more recent example, in or around June 2020, Plaintiff alleges that
Fanning responded to Plaintiff’s and others’ urging for the return of senior dues
to students at the School by saying, “[t]hese Black people, all they know is how
to complain!” (Id. at ¶ 88).
Second, Plaintiff alleges that Fanning escalated his surveillance of
Plaintiff at the School. According to Plaintiff, upon his return from sabbatical,
Fanning personally began to “lurk outside of [his] classroom” and “eavesdrop
on [his] lessons,” in what Plaintiff interpreted as an attempt to intimidate him.
(Am. Compl. ¶¶ 45-46). Plaintiff alleges that Fanning’s scrutiny of Plaintiff
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 6 of 24
prompted some students to comment “on how weird they found Fanning’s
behavior.” (Id. at ¶ 45).
Third, despite customarily receiving ratings of “highly effective” prior to
going on sabbatical, Plaintiff received “lower than average” ratings on his
classroom observation reports throughout the 2018-2019 school year, which
negatively impacted the grade on his overall yearly evaluation. (Am. Compl.
¶ 47). When Plaintiff inquired of Foster-Ba about his surprisingly poor ratings,
she admitted they were due to pressure from Fanning, who was “vehemently
opposed to issuing Plaintiff effective and/or satisfactory ratings, even when
such ratings were earned and warranted.” (Id. at ¶¶ 48-50).
Fourth, Plaintiff alleges that Fanning tasked him with an excessive
number of undesirable work assignments. Teachers at the School considered
serving as a scorer for the annual Regents exam to be a “loathsome job” for its
tediousness, logistical complexity, and travel requirements. (Am. Compl. ¶ 52).
Plaintiff alleges that in recognition of the nature of the job, Fanning’s usual
practice was to rotate teachers off the assignment. (Id. at ¶ 53). According to
Plaintiff, however, during the 2018-2019 school year, Fanning refused to rotate
Plaintiff off the job, and selected him twice a year for Regents grading. (Id. at
Fifth, Plaintiff avers that Fanning ignored or dismissed multiple of his
proposals to institute student extracurriculars or initiatives aimed at teaching
and celebrating diversity, despite being willing to support programs proposed
by other faculty. (Am. Compl. ¶¶ 59-67). More specifically, in or around
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 7 of 24
December 2019, Plaintiff raised the possibility of restarting the School’s
previously successful Law Team, which request Fanning ignored. (Id. at ¶¶ 5962). Fanning also refused to fund or support Plaintiff’s proposed anti-racist
curriculum, as well as the APTALKS program, which Plaintiff designed to train
students to conduct research and give presentations. (Id. at ¶¶ 64, 75-78).
Foster-Ba told Plaintiff that “under no circumstances would [Fanning] support
any endeavor of Plaintiff’s, and would not allow Plaintiff to rise in the ranks at
the school,” because “Plaintiff spoke out against [Fanning].” (Id. at ¶ 65).
Finally, Plaintiff alleges that Fanning denied him promotional
opportunities. Upon learning of Plaintiff’s interest in applying for a second
deanship for the 2019-2020 academic year, Fanning announced at a meeting
with other assistant principals that Plaintiff would “never be able to sit at that
table with him,” and that Plaintiff — along with others who had spoken out
against Fanning — “did not have a chance” at being promoted. (Am. Compl.
¶¶ 81-83). When Plaintiff applied for dean this second time, his application
was not considered and the position went to someone whom Plaintiff believes to
be Caucasian woman. (Id. at ¶ 85).
Plaintiff contends that Fanning continues to display hostility toward
minorities, especially those who have complained about him. (Am. Compl.
¶¶ 86-87). Plaintiff notes that in addition to his own complaints about
Fanning, at least four of Plaintiff’s current or former colleagues have also
complained about discrimination and retaliation at the School, and that
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 8 of 24
Fanning’s conduct has been the impetus for “multiple lawsuits” against the
DOE brought by School employees. (Id. at ¶¶ 94-95).
Plaintiff filed the initial Complaint in this action on December 19, 2019,
asserting Section 1983 claims against Defendant DOE based on theories of
race and national origin discrimination, retaliation, and failure to hire. (Dkt.
#1). On March 12, 2020, Defendant moved to dismiss the original Complaint
on the grounds that many of Plaintiff’s claims were time-barred. (Dkt. #12-14).
By Opinion and Order dated December 21, 2020, the Court granted
Defendant’s motion to dismiss, but permitted Plaintiff leave to file an amended
complaint with timely allegations supporting his hostile work environment
claims. (Dkt. #21). See Rivera v. Bd. of Educ. of City Sch. Dist. of City of N.Y.,
No. 19 Civ. 11624 (KPF), 2020 WL 7496282 (S.D.N.Y. Dec. 21, 2020) (“Rivera
On January 15, 2021, Plaintiff filed the Amended Complaint, which
asserts three claims of hostile work environment, predicated on race
discrimination, national origin discrimination, and retaliation. (Dkt. #22, 23). 5
On April 4, 2021, Defendant filed its motion to dismiss the Amended
Complaint, along with its supporting papers. (Dkt. #29-31). On June 21,
2021, Plaintiff filed his opposition papers. (Dkt. #34). On July 6, 2021,
Due to a docketing error, the Amended Complaint was re-filed on January 19, 2021.
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 9 of 24
Defendant filed its reply brief. (Dkt. #35). Accordingly, Defendant’s motion to
dismiss the Amended Complaint is fully briefed and ripe for consideration.
Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)
Under Rule 12(b)(6), a defendant may seek dismissal of a plaintiff’s
action for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). When considering a motion to dismiss under Rule 12(b)(6), a
court must “draw all reasonable inferences in Plaintiff[’s] favor, ‘assume all
well-pleaded factual allegations to be true, and determine whether they
plausibly give rise to an entitlement to relief.’” Faber v. Metro. Life Ins. Co., 648
F.3d 98, 104 (2d Cir. 2011) (quoting Selevan v. N.Y. Thruway Auth., 584 F.3d
82, 88 (2d Cir. 2009)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A plaintiff will survive a motion to dismiss if the complaint contains
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also In re Elevator Antitrust
Litig., 502 F.3d 47, 50 (2d Cir. 2007) (“While Twombly does not require
heightened fact pleading of specifics, it does require enough facts to ‘nudge
[plaintiff’s] claims across the line from conceivable to plausible.’” (quoting
Twombly, 550 U.S. at 570)). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557). “[A]lthough a court must accept as true
all of the allegations contained in a complaint, that tenet is inapplicable to legal
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 10 of 24
conclusions, and threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (internal quotation marks, alterations, and citation
omitted); see also Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008)
(explaining that a court is not bound to accept “conclusory allegations or legal
conclusions masquerading as factual conclusions” (citation omitted)).
A court adjudicating a motion to dismiss under Rule 12(b)(6) “may review
only a narrow universe of materials.” Goel v. Bunge, Ltd., 820 F.3d 554, 559
(2d Cir. 2016). This narrow universe includes “the facts alleged in the
complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 111 (2d Cir. 2010) (citations omitted).
Plaintiff Has Failed to State a Claim for Municipal Liability Under
Plaintiff brings three claims against the DOE, all pursuant to Section
1983, for deprivation of his rights under the Equal Protection Clause of the
Fourteenth Amendment. “To state a claim under [Section] 1983, a plaintiff
must allege two elements: [i] the violation of a right secured by the Constitution
and laws of the United States; and [ii] the alleged deprivation was committed by
a person acting under color of state law.” Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 87-88 (2d Cir. 2015) (internal quotation marks and citation
Where, as here, a plaintiff brings a Section 1983 claim against a
municipal agency — otherwise known as a Monell claim — he must also allege
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 11 of 24
that “a violation of rights resulted from the ‘government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy.’” Nagle v. Marron, 663 F.3d 100, 116 (2d Cir.
2011) (quoting Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978)).
In this case, Plaintiff’s claims rest on the theory that the DOE established
and maintained a hostile work environment based on Plaintiff’s race and
national origin, and in retaliation for Plaintiff’s complaints about such
discrimination. The Court will first address the threshold issue of whether
Plaintiff has adequately alleged that the DOE may be liable for the asserted
violations of his federal constitutional rights. For the reasons that follow, the
Court concludes that Plaintiff has failed to establish a basis for municipal
liability. Given that the DOE is the only named defendant in this case, this
finding is determinative of this motion.
The Monell Standard for Municipal Liability
The DOE is a municipal agency for the purposes of Section 1983. See
Hurdle v. Bd. of Educ. of City of N.Y., 113 F. App’x 423, 424-25 (2d Cir. 2004)
(summary order). Under Monell, the DOE cannot be held vicariously liable for
its employees’ actions; instead a plaintiff must demonstrate that “through its
deliberate conduct, the municipality was the ‘moving force’ behind the alleged
injury.” Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (emphasis
added) (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997)).
“[T]o hold a city liable under [Section] 1983 for the unconstitutional
actions of its employees, a plaintiff is required to plead and prove three
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 12 of 24
elements: [i] an official policy or custom that [ii] causes the plaintiff to be
subjected to [iii] a denial of a constitutional right.” Biehner v. City of New York,
No. 19 Civ. 9646 (JGK), 2021 WL 878476, at *5 (S.D.N.Y. Mar. 9, 2021)
(quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)); accord Harper
v. City of New York, 424 F. App’x 36, 38 (2d Cir. 2011) (summary order). As to
the first prong of this analysis, a plaintiff may plead the existence of a
municipal policy or custom by alleging:
[i] an express policy or custom; [ii] an authorization of a
policymaker of the unconstitutional practice; [iii] failure
of the municipality to train its employees, which
exhibits a “deliberate indifference” to the rights of its
citizens; or [iv] a practice of the municipal employees
that is “so permanent and well settled as to imply the
constructive acquiescence of senior policymaking
Biswas v. City of New York, 973 F. Supp. 2d 504, 536 (S.D.N.Y. 2013) (quoting
Pangburn v. Culbertson, 200 F.3d 65, 71-72 (2d Cir. 1999)); accord Jones v.
Bloomberg, No. 14 Civ. 6402 (KPF), 2014 WL 4652669, at *2 (S.D.N.Y. Sept. 17,
2014) (dismissing Section 1983 claim against the City of New York where the
“complaint lack[ed] any factual allegations suggesting the existence of an
officially-adopted policy or custom that caused Plaintiff[’s] injury” (internal
quotation marks and alterations omitted)). A “general and conclusory
allegation” of a municipal policy or custom fails to state a Monell claim. See
Littlejohn v. City of New York, 795 F.3d 297, 315 (2d Cir. 2015).
Plaintiff asserts that the DOE should be held liable for the alleged
violations of his constitutional rights under two possible theories: (i) Fanning,
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 13 of 24
as School principal, was a final policymaker “regarding all employee decisions,
hirings, promotions, funding, and school activities,” whose discriminatory
conduct may be imputed to the DOE for purposes of Section 1983 (Am. Compl.
¶ 92; see also Pl. Opp. 8-10); and (ii) the discrimination was so “persistent and
widespread” as to constitute the “constructive acquiescence of [DOE]
policymakers” (Am. Compl. ¶ 91; see also Pl. Opp. 10-11). Defendant argues
that Plaintiff has asserted only boilerplate allegations of a municipal policy or
custom of discrimination and that Fanning cannot be considered a final
policymaker under Monell. (Def. Br. 6-8; Def. Reply 3-4). The Court finds that
the allegations in the Amended Complaint fail to support either of Plaintiff’s
Fanning Is Not a Final Policymaker for Monell Purposes
Plaintiff argues that Fanning’s status as a final policymaker flows from
his status as School principal. (Pl. Opp. 9-10). 6 In Plaintiff’s telling of events,
Fanning possessed “complete control, oversight, and decision-making authority
at the [S]chool,” which power he used to subject Plaintiff to discriminatory
comments, heightened scrutiny of his performance, undesirable duties, an
unjustified denial of a promotion, and an overall hostile work environment
based on his race and national origin. (Id. at 10). Plaintiff contends that it
Plaintiff concedes that his discrimination and retaliation claims are “premised
predominantly on the actions of his principal, Fanning.” (Pl. Opp. 9). As such, the
Court focuses its analysis of Plaintiff’s “final policymaker” argument on the allegations
that pertain to Fanning.
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 14 of 24
necessarily follows from these facts that the DOE may be held liable for the
hostile work environment that Fanning propagated. (Id. at 10-11).
Defendant counters that “the mere fact that … Principal Fanning is
alleged to be a final decision maker at the [S]chool does not somehow make
him a final policymaker for Monell purposes.” (Def. Br. 8 (emphasis in original);
see also Def. Reply 3-4 (collecting cases within the Second Circuit finding
school principals not to be final policymakers)). Rather, Defendant urges that
the hallmark of a final policymaker is “whether the municipal official has the
authority to formulate the rules governing personnel decisions rather than the
authority to make decisions pursuant to those rules — e.g., the hiring and
firing of subordinates.” (Def. Br. 8 (citing Chin v. N.Y.C. Hous. Auth., 575 F.
Supp. 2d 554, 562 (S.D.N.Y. 2008))).
The Court finds Defendant’s position to accord with the Second Circuit’s
approach to determining final policymaker status. Under Monell, “a
municipality may be liable for the acts of a single official — but only if that
official is someone ‘whose edicts or acts may fairly be said to represent official
policy’ for the entire municipality.” Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d
86, 98 (2d Cir. 2020) (quoting Monell, 436 U.S. at 694); see also Santos v. New
York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012) (“[T]he single act of a
municipal policymaker, i.e., a person with the authority to set municipal policy,
can constitute official policy, and thus, can give rise to municipal liability.”
(citing Pembaur v. Cincinnati, 475 U.S. 469, 480 (1986))). Authority to set
municipal policy resides in “the official or officials responsible for establishing
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 15 of 24
final policy with respect to the subject matter in question.” Pembaur, 475 U.S.
at 483 (emphasis added) (citation omitted); see also Jeffes v. Barnes, 208 F.3d
49, 57 (2d Cir. 2000) (“[O]nly those municipal officials who have ‘final
policymaking authority’ may by their actions subject the government to
[Section] 1983 liability.” (citation omitted)). Final policymaking authority
requires that the official be vested with responsibility under state law for
making policy in that area of the municipality’s business, which entails more
than just the power to make an unreviewable decision. See Agosto, 982 F.3d at
98 (citing Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992), and
Anthony v. City of New York, 339 F.3d 129, 139 (2d Cir. 2003)). “Whether the
official in question possessed final policymaking authority is a legal question,
which is to be answered on the basis of state law[.]” Jeffes, 208 F.3d at 57
In reaching the conclusion that Fanning is not a final policymaker, the
Court is guided by the Second Circuit’s recent decision in Agosto v. New York
City Department of Education, which rejected the theory that “a public school
principal acts as a final policymaker to the extent that the ultimate harm that
befell the plaintiff was under the principal's control.” 982 F.3d at 100-01. In
eschewing this theory, the Agosto panel cautioned against “erroneously
equating a principal’s final decisions with a municipality’s final policies[.]” Id.
The application of that principle here demonstrates that Fanning is not a final
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 16 of 24
Plaintiff fails to point to any legal authority to suggest that Fanning, as
principal of A.P. Randolph High School, had the power to set DOE policy in any
relevant respect. Contrary to Plaintiff’s contention that Fanning “had complete
control, oversight, and decision-making authority at the school” (Pl. Opp. 10),
New York law establishes that the authority of New York City school principals
over “the day to day operation of the school” is “[s]ubject to the regulations of
the chancellor[.]” N.Y. Educ. Law § 2590-i. And with respect to such
regulations, New York law vests the chancellor with expansive authority to set
policy for and to “[c]ontrol and operate … academic and vocational senior high
schools[.]” Id. § 2590-h(1); see also Agosto, 982 F.3d at 98-99 (explaining that
“[b]ecause state law invests the chancellor with such authority, New York’s
highest court has held that ‘the city board [of education] and the Chancellor
are responsible for policy having city-wide impact’” (quoting N.Y.C. Sch. Bds.
Ass’n v. Bd. of Educ. of City Sch. Dist., 39 N.Y.2d 111,119 (1976)). Without any
support in state law for his claim that Fanning’s discriminatory comments,
excessive surveillance, or employment decisions were performed pursuant to a
municipal policy, Plaintiff’s claim that Fanning was a final policymaker must
fail. See Agosto, 982 F.3d at 99 (“Because the chancellor appears to be the
final policymaker for the [DOE] with respect to teacher discipline and school
administration, [plaintiff] has difficulty articulating precisely how a school
principal … could have established municipal policy.”); see also Kuperman v.
City of New York, No. 20 Civ. 6834 (LTS) (DCF), 2021 WL 4442855, at *5
(S.D.N.Y. Sept. 28, 2021) (citing Agosto for the proposition that “school
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 17 of 24
principals are as a matter of law not ‘final policymaker[s]’ for the New York City
Department of Education for purposes of Monell”).
Plaintiff attempts to save his claim by pointing to both his contention
that Fanning’s actions as principal “were not reviewable by any higher
authority” (Pl. Opp. 9), and a line of district court cases within the Second
Circuit that found school principals to have a sufficient degree of decisional
authority in a public school’s day-to-day operations to confer final
policymaking status under Monell (id. at 9-10 (collecting cases)). But, as
Agosto clarified, this argument erroneously conflates a final decisionmaker with
a final policymaker. See Agosto, 982 F.3d at 100 (“[B]y equating a final
decisionmaker with a final policymaker, [plaintiff’s] approach would effectively
impose respondeat superior liability — making the municipality liable for the
conduct of its employees — in violation of Monell itself.”); cf. Buchanan v. City of
New York, No. 21 Civ. 660 (SHS), — F. Supp. 3d —, 2021 WL 3726963, at *11
(S.D.N.Y. Aug. 23, 2021) (finding the actions of an executive director of the New
York City Civilian Complaint Review Board (“CCRB”), who possessed final
decisionmaking authority over CCRB employment matters, to be insufficient to
confer Monell liability because his “personnel decisions cannot be considered to
‘represent official policy’ for the municipality” (citing Monell, 436 U.S. at 694)).
Furthermore, the Second Circuit explicitly declined to adopt the approach
taken in Plaintiff’s cited cases — indeed, the panel specifically disavowed eight
of the eleven cases Plaintiff cited for this proposition (see Pl. Opp. 9-10). See
Agosto, 982 F.3d at 100 n.7, 100-01. In finding these cases to be inconsistent
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 18 of 24
with Monell, the Agosto panel reasoned that deeming a principal to be a final
policymaker “to the extent that the ultimate harm that befell the plaintiff was
under the principal’s control” runs the untenable risk of “imposing Monell
liability for almost every action a principal takes.” Id. at 100-01.
Thus, the Court finds that Plaintiff has failed to allege that Fanning was
a final policymaker for purposes of Monell liability.
The DOE Has Not “Constructively Acquiesced” in a
Municipal Policy or Custom of Discrimination
Plaintiff separately argues that even if Fanning were not a final
policymaker, the DOE may be held liable on the basis of its “constructive
acquiescence” in the discriminatory conduct of its subordinate employees. (See
Pl. Opp. 9). Focusing on Fanning’s behavior, Plaintiff alleges that despite
knowledge of the discrimination endured by Plaintiff and other minority
faculty, the DOE “has permitted Fanning to continue as Principal at the School
with[out] reprisal for his actions, thereby tacitly condoning the discrimination,
harassment, and retaliation experienced by Plaintiff and other minority
employees.” (Am. Compl. ¶ 96; see also Pl. Opp. 10-11 (“[T]he DOE has been
aware of such behaviors … but has done nothing to remedy the issue thereby
permitting Fanning to institute discriminatory rule over the School.”)).
As support for the DOE’s awareness of Fanning’s pattern of
discrimination, Plaintiff points to Fanning’s “noted and public history of
discriminating against Black and other minority personnel at the school,”
which has generated “multiple lawsuits” against the DOE. (Am. Compl. ¶ 94).
Plaintiff further asserts that he is “at least the fifth employee at the School to
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 19 of 24
complain that he had been discriminated and/or retaliated against at the
School and/or directly by Fanning[.]” (Pl. Opp. 11 (emphasis in original); see
also Am. Compl. ¶ 95). Defendant does not concede the point and argues that
Plaintiff has not pleaded facts to support the theory that “Principal Fanning or
Supervisor Pekow acted ‘pursuant to a longstanding practice or custom’ of
DOE[.]” (Def. Reply 4).
“While ‘isolated acts by non-policymaking municipal employees are
generally not sufficient to demonstrate a municipal custom, policy, or usage
that would justify liability,’ [the Second Circuit has] recognized that ‘they can
be the basis of liability if they ... were sufficiently widespread and persistent to
support a finding that they constituted a custom, policy, or usage of which
supervisors must have been aware.’” Hu v. City of New York, 927 F.3d 81, 10506 (2d Cir. 2019) (quoting Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 62
(2d Cir. 2014)). To prevail on such a theory, the unconstitutional conduct
must be “so manifest as to imply the constructive acquiescence of senior
policy-making officials.” Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297-98 (2d
Cir. 2020) (quoting Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 870-71 (2d
Cir. 1992)). “[T]here must be ‘sufficient instances of tolerant awareness by
supervisors of abusive conduct to support an inference that they had a policy,
custom or usage of acquiescence in such abuse.’” Id. at 298 (quoting Jones v.
Town of E. Haven, 691 F.3d 72, 82 (2d Cir. 2012)). “It is only at that point
that, although not expressly authorized, the unconstitutional conduct is so
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 20 of 24
persistent and widespread that it can constitute a custom or usage of which a
supervising policymaker must have been aware.” Id. (citation omitted).
Here, the Court finds that Plaintiff’s allegations are neither sufficiently
widespread nor manifest to plausibly allege that the DOE constructively
acquiesced in an official policy or custom of discrimination and retaliation at
the School. First, although the Amended Complaint alleges that Fanning
engaged in several forms of discriminatory behavior vis-à-vis Plaintiff, it fails to
allege a basis to infer that any senior policymaking official at the DOE had
knowledge of the conduct complained of by Plaintiff. For instance, Plaintiff
does not explain how conduct such as “lurk[ing] outside of Plaintiff’s classroom
and tr[ying] to eavesdrop on [Plaintiff’s] lessons” (Am. Compl. ¶ 45); unfairly
“continu[ing] to choose [Plaintiff] twice a year to handle grading the Regents
exams” (id. at ¶ 54); or “refus[ing] to reach out to [Plaintiff] out of disdain” after
Plaintiff had intervened in a violent altercation between students (id. at ¶ 58)
can plausibly constitute discrimination or retaliation “so manifest as to imply
the constructive acquiescence of senior policymaking officials.” Lucente, 980
F.3d at 297-98.
Second, Plaintiff’s allegations of Fanning’s discrimination against others
are too generalized to support Plaintiff’s constructive acquiescence theory. In
his most specific allegation to this effect, Plaintiff asserts that “multiple faculty
members, including Chantise Hogue and Mr. Westbrook [both of whom are
African-American] … have paid dire consequences” as a result of speaking “out
against Fanning’s discriminatory behavior in various ways.” (Am. Compl.
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 21 of 24
¶ 87). But without any elaboration whatsoever on the “various ways” these
aggrieved faculty members complained, the individuals to whom they
complained, or the “dire consequences” they faced for complaining, the
allegation is far too general and conclusory to permit the inference of a
municipal policy of discrimination or retaliation based on inaction by the DOE.
See Green v. Dep’t of Educ. of City of N.Y., No. 20-3785, — F.4th —, 2021 WL
5022654, at *4 (2d Cir. Oct. 29, 2021) (citing Littlejohn, 795 F.3d at 315, in
affirming dismissal of complaint); cf. Jones v. Town of E. Haven, 691 F.3d at 85
(reversing denial of motion for judgment as a matter of law where the “evidence
fell far short of showing a policy, custom or usage of officers to abuse the rights
of black people, and far short of showing abusive conduct among officers so
persistent that it must have been known to supervisory authorities”).
Finally, the Court finds Plaintiff’s allegations concerning other colleagues’
complaints about Fanning’s conduct to be too vague to permit a plausible
inference that the DOE constructively acquiesced in a policy of discrimination
at the School. Plaintiff claims that he is at least the fifth employee who has
complained about discrimination and retaliation at the School, but the Court
refused to credit virtually identical allegations made in Plaintiff’s original
Complaint for his failure to “actually plead any facts to support the allegation
that these individuals were in fact subject to any discrimination, or that their
treatment was similar to Plaintiff’s complained-of discrimination in any way”
Rivera I, 2020 WL 7496282, at *8 n.4. The Amended Complaint suffers from
this same defect, as Plaintiff again “simply lists four names and makes a
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 22 of 24
conclusory allegation that they ‘complained about’ discrimination of some kind
at an unspecified time.” Id. This is not sufficient to suggest that the DOE,
itself, tolerated, as a matter of policy or custom, violations of the constitutional
rights of School employees.
Along similar lines, Plaintiff claims that Fanning’s conduct “has been the
impetus for multiple lawsuits against [the DOE].” (Am. Compl. ¶ 94). But this
mere gesture at the “multiple lawsuits” generated by Fanning’s conduct does
not plausibly suggest that the alleged discrimination at the School
“represent[ed] the conscious choices of the municipality itself.” Amnesty Am. v.
Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004). Notably, Plaintiff does
not provide any indication as to whether any of these suits “resulted in an
adjudication of liability,” as the unsubstantiated allegations in a lawsuit does
not necessarily indicate the actual existence of a widespread municipal policy
or practice. Tieman v. City of Newburgh, No. 13 Civ. 4178 (KMK), 2015 WL
1379652, at *17 (S.D.N.Y. Mar. 26, 2015) (citing Walker v. City of New York,
No. 12 Civ. 5902 (PAC), 2014 WL 1259618, at *3 (S.D.N.Y. Mar. 18, 2014)).
Without any context for whether these nameless suits brought by unspecified
plaintiffs actually put the DOE on notice of Fanning’s conduct at the School,
the Court finds they cannot support Plaintiff’s theory that the DOE
constructively acquiesced in a constitutionally infirm policy. See id. at *17
(finding the existence of nine suits, filed over the course of five years, even
when combined with other allegations, to be “insufficient to plausibly support
an inference of a widespread custom”); cf. Collins v. City of New York, 923 F.
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 23 of 24
Supp. 2d 462, 479 (E.D.N.Y. 2013) (finding a “litany of other police-misconduct
cases” cited by Plaintiff to be “insufficient to make a plausible case for Monell
liability,” because they either differed from the misconduct alleged in the
complaint, post-dated the misconduct alleged by plaintiff, or “involve[d]
something less (settlements without admissions of liability and unproven
allegations) than evidence of misconduct”).
In sum, the Amended Complaint fails to plausibly allege that the DOE
“acquiesced in or tacitly authorized its subordinates’ unlawful actions.”
Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (citation omitted). At
base, Plaintiff seeks to hold the DOE liable for the unconstitutional behavior of
a subordinate employee under an impermissible vicarious liability theory. See
Jallow v. City of New York, No. 21-1267, 2021 WL 5121130, at *2 (2d Cir.
Nov. 4, 2021) (summary order) (“[G]overnment officials may not be held liable
for the unconstitutional conduct of their subordinates under a theory of
respondeat superior, which is, at bottom, [plaintiff’s] theory of municipal
liability.” (internal quotation marks and citation omitted)). 7
For the foregoing reasons, Defendant’s motion to dismiss the Amended
Complaint is granted. Plaintiff has not requested leave to file a Second
Amended Complaint. And in light of the guidance this Court provided in Rivera
Because the Court has determined that Plaintiff has failed to plead a basis for Monell
liability, Plaintiff’s Section 1983 claims against the DOE cannot go forward, even if he
has adequately alleged a deprivation of his constitutional rights. As such, the Court
need not address whether Plaintiff has satisfied the pleading standard for his hostile
work environment claims.
Case 1:19-cv-11624-KPF Document 36 Filed 11/18/21 Page 24 of 24
I regarding the filing of amended pleadings, the Court does not believe further
amendment would remedy the pleading deficiencies outlined in this Opinion.
See Binn v. Bernstein, No. 19 Civ. 6122 (GHW) (SLC), 2020 WL 4550312, at *34
(S.D.N.Y. July 13, 2020) (“To grant Plaintiffs leave to amend would be allowing
them a ‘third bite at the apple,’ which courts in this district routinely deny.”
(collecting cases)), report and recommendation adopted, 2020 WL 4547167
(S.D.N.Y. Aug. 6, 2020); see generally Gorman v. Covidien Sales, LLC, No. 13
Civ. 6486 (KPF), 2014 WL 7404071, at *2 (S.D.N.Y. Dec. 31, 2014) (noting that
“it remains ‘proper to deny leave to replead where ... amendment would be
futile’” (citing Hunt v. Alliance N. Am. Gov’t Income Trust, Inc., 159 F.3d 723,
728 (2d Cir. 1998))). Accordingly, Plaintiff’s claims against the DOE are
dismissed with prejudice.
The Clerk of Court is directed to terminate all pending motions, adjourn
all remaining dates, and close this case.
November 18, 2021
New York, New York
KATHERINE POLK FAILLA
United States District Judge
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