Nelson v. Mount Vernon City School District et al

Filing 26

OPINION & ORDER re: 16 FIRST MOTION to Dismiss , filed by Hasna Muhammad, Mount Vernon City School District. Defendants' Motion is granted in part and denied in part. The NYSHRL claim asserted against the School District is dismi ssed with prejudice, but the claim asserted against Muhammad is dismissed without prejudice. The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No. 16), and to dismiss Dr. Muhammad from the case. SO ORDERED., (Hasna Muhammad (Individually) and Hasna Muhammad (As Assistant Superintendent of Human Resources) terminated.) (Signed by Judge Kenneth M. Karas on 3/22/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

LOVETTA S. NELSON,
Plaintiff,
No. 15-CV-8276 (KMK)
-vOPINION & ORDER
MOUNT VERNON CITY SCHOOL DISTRICT and
DR. HASNA MUHAMMAD, as Assistant
Superintendent of Human Resources and individually,
Defendants.

Appearances:
Paula J. Kelly, Esq.
Law Offices of Paula Johnson Kelly
New Rochelle, NY
Counsel for Plaintiff
Gerald S. Smith, Jr., Esq.
Karen C. Rudnicki, Esq.
Silverman & Associates
White Plains, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiff Lovetta S. Nelson (“Plaintiff”) brings this Action against the Mount Vernon City
School District (“School District” or “District”) and Dr. Hasna Muhammad (“Dr. Muhammad”
and collectively, “Defendants”), alleging that Defendants unlawfully retaliated against her for
making complaints about sexual harassment in violation of Title VII of the Civil Rights Act
(“Title VII”), 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. Law § 290 et seq. (See generally Am. Compl. (Dkt. No. 15).)
Defendants have filed a Partial Motion To Dismiss the Amended Complaint pursuant to Federal

Rule of Civil Procedure 12(b)(1) (the “Motion”), seeking to dismiss Plaintiff’s NYSHRL claims.
(Dkt. No. 16.) For the reasons stated below, the Motion is granted in part and denied in part.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Amended Complaint and the documents
appended thereto, and are taken as true for the purpose of resolving the Motion. Only the facts
necessary to the resolution of the Motion are recounted below.
Plaintiff began working for the School District in 2007 as a per diem substitute teacher.
(Am. Compl. ¶ 14.) Plaintiff continued in that position until 2013. (Id. ¶ 15.) In January 2013,
the School District hired Dr. Muhammad to serve as the Assistant Superintendent of Human
Resources. (Id. ¶ 23.) On February 28, 2013, Plaintiff was summoned to a meeting with Dr.
Muhammad, during which Dr. Muhammad questioned Plaintiff about a sexual misconduct
complaint Plaintiff made in January 2011 against a fellow teacher. (Id. ¶¶ 24, 67.) Dr.
Muhammad stated she was going to be “looking into” the incident, (id. ¶ 24 (internal quotation
marks omitted)), and informed Plaintiff that Plaintiff’s name was going to be removed from the
“active” substitute teacher list for the duration of the investigation, (id. ¶ 25 (internal quotation
marks omitted)).
Before this initial meeting with Dr. Muhammad, Plaintiff had been assigned to work as a
substitute teacher at the Longfellow Elementary School in March 2013. (Id. ¶ 29.) Plaintiff
continued to appear as assigned despite Dr. Muhammad’s indication that Plaintiff was being
removed from the substitute teaching list. (Id.) On March 11, 2013, Plaintiff was removed from
a classroom at Longfellow and directed to appear again before Dr. Muhammad. (Id. ¶ 30.) Dr.
Muhammad stated that she was still looking into the sexual harassment complaint and told

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Plaintiff that she was suspended until Dr. Muhammad told her otherwise. (Id.) Plaintiff
nonetheless accepted other substitute teaching assignments in the District in April and May 2013.
(Id. ¶ 43.)
On September 24, 2013, Dr. Muhammad sent Plaintiff a memorandum stating that
Plaintiff had been insubordinate by accepting substitute teaching positions in the District and
informed Plaintiff that she could no longer serve as a substitute teacher. (Id. ¶¶ 44–47; see also
id. Ex. 4.) Plaintiff thereafter submitted a letter to the School District’s Superintendent, dated
October 1, 2013, stating that Dr. Muhammad’s actions were discriminatory. (Id. ¶ 50; see also
id. Ex. 3-A.) The Superintendent did not respond to the letter. (Id. ¶ 50.)
Throughout November and December 2013, Plaintiff’s counsel communicated with the
Superintendent and counsel for the School District. First, on November 8, 2013, Plaintiff’s
counsel sent a letter to the Superintendent in an attempt to resolve the matter. (Id. ¶ 51; see also
id. Ex. 3-B.) Plaintiff did not receive a response from the Superintendent. Plaintiff’s counsel
was thereafter contacted by a lawyer for the School District, who represented that he was
“authorized to discuss the . . . matter with [Plaintiff’s counsel] in all respects.” (Id. Ex. 3-C.) On
November 29, 2013, Plaintiff’s counsel submitted a settlement demand letter to the School
District’s counsel. (Id. Ex. 3-D.) The letter noted that Plaintiff understood that counsel for the
School District had to present the settlement proposal to the Board of Directors for the School
District before a settlement could be reached. (Id. Ex. 3-D, at 2.) After failing to hear from
counsel for the School District for several weeks, Plaintiff’s counsel sent an email to the School
District’s counsel asking him whether he presented the settlement proposal to the Board of
Directors, and informing the School District of Plaintiff’s intention to file a charge of retaliation
with the Equal Employment Opportunity Commission (“EEOC”). (Id. Ex. 3-E.) Plaintiff did not

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receive a response to these communications. (Id. ¶ 53.) In January 2014, Plaintiff filed a charge
with the EEOC, alleging Defendants violated Title VII. (Id. ¶ 54.)1
In August 2014, Plaintiff applied to be a substitute teacher for the School District, the
same position she held before Dr. Muhammad fired her. Plaintiff was advised by a District
representative that the District was not hiring. (Id. ¶ 58.) Plaintiff alleges that the School
District hired other substitute teachers for the 2014−2015 school year. (Id. ¶ 59.) After Plaintiff
learned that the School District was in fact hiring, Plaintiff attempted to apply a second time.
(Id. ¶ 60.) A different School District employee informed Plaintiff that Plaintiff could not be
given an application “because of what Dr. Muhammad said.” (Id. (internal quotation marks
omitted).)
Plaintiff again attempted in August or September 2015 to apply for substitute teaching
positions with the School District. (Id. ¶ 62.) School District employees did not return
Plaintiff’s calls inquiring about being re-hired by the School District. (Id.)
Plaintiff alleges that Defendants’ decision to suspend and terminate her employment with
the School District was in retaliation for complaining about sexual harassment in 2011. (Id.
¶¶ 67–69.) The School District’s retaliatory conduct allegedly continues to this day because it
will not allow Plaintiff to resume her employment as a substitute teacher. (Id. ¶ 64.)
B. Procedural Background
Plaintiff filed the Complaint on October 20, 2015. (Dkt. No. 1.) Defendants filed a premotion letter on December 8, 2015, seeking leave to file a motion to dismiss the Complaint on
the grounds, among others, that Plaintiff’s NYSHRL claims were barred because Plaintiff did not
timely file a notice of claim and, in any event, the claims were barred by the applicable statute of
1

Plaintiff amended the EEOC charge in April 2015. (Am. Compl. ¶ 61; see also id. Ex.

1-A.)
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limitations. (Dkt. No. 11.) Following a pre-motion conference, Plaintiff filed an Amended
Complaint on March 18, 2016. (Dkt. No. 15.) Defendants filed the Motion and accompanying
papers on April 29, 2016. (Dkt. Nos. 16–19.) Plaintiff filed her papers in opposition to the
Motion on June 3, 2016. (Dkt. Nos. 22–23.) Defendants filed their reply brief in further support
of the Motion on June 17, 2016. (Dkt. No. 24.)
II. Discussion
Defendants argue that Plaintiff’s state-law claims must be dismissed because Plaintiff did
not timely file this Action. Even if Plaintiff’s NYSHRL claims are not barred by the applicable
statute of limitations, Defendants contend that the Court lacks subject matter jurisdiction over the
claims because Plaintiff did not file a notice of claim with the School District’s governing
body—the Board of Directors. Because the Court finds persuasive Defendants’ second
argument, the Court declines to address the statute of limitations issue.
A. Standard of Review
“A federal court has subject matter jurisdiction over a cause of action only when it has
authority to adjudicate the cause pressed in the complaint.” Bryant v. Steele, 25 F. Supp. 3d 233,
241 (E.D.N.Y. 2014) (internal quotation marks omitted). “Determining the existence of subject
matter jurisdiction is a threshold inquiry[,] and a claim is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d
Cir. 2008) (internal quotation marks omitted), aff’d, 561 U.S. 247 (2010). While a district court
resolving a motion to dismiss under Rule 12(b)(1) “must take all uncontroverted facts in the
complaint . . . as true, and draw all reasonable inferences in favor of the party asserting
jurisdiction,” “where jurisdictional facts are placed in dispute, the court has the power and

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obligation to decide issues of fact by reference to evidence outside the pleadings, such as
affidavits,” in which case “the party asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists.” Tandon v. Captain’s Cove Marina of
Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (alteration and internal quotation marks
omitted); see also Ray Legal Consulting Grp. v. Gray, 37 F. Supp. 3d 689, 696 (S.D.N.Y. 2014)
(“[W]here subject matter jurisdiction is contested a district court is permitted to consider
evidence outside the pleadings, such as affidavits and exhibits.”).
B. Plaintiff’s NYSHRL Claim Against the School District
NYSHRL claims that “are brought against a school district, board of education, or school
officer are subject to the notice of claim requirements contained in [New York] Education Law
§ 3813(1).” Benedith v. Malverne Union Free Sch. Dist., 38 F. Supp. 3d 286, 311 (E.D.N.Y.
2014). As relevant here, Education Law § 3813(1) provides:
No action or special proceeding, for any cause whatever, . . . shall be prosecuted
or maintained against any school district, board of education, . . . or any officer of
a school district, [or] board of education . . . 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); see also Marino v. Chester Union Free Sch. Dist., 859 F. Supp. 2d
566, 570 (S.D.N.Y. 2012) (“Section 3813(1) of [the] New York State Education Law provides
that no action may be maintained against a school district unless notice of claim was served
within three months of the date on which the claim accrued.”). “Th[is] statutory prerequisite is
not satisfied by presentment to any other individual or body, and, moreover, the statute permits
no exception regardless of whether the [governing body] had actual knowledge of the claim or

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failed to demonstrate actual prejudice.” Parochial Bus Sys., Inc. v. Bd. of Educ. of City of N.Y.,
458 N.E.2d 1241, 1245 (N.Y. 1983).
It is well settled in the Second Circuit “that Education Law § 3813(1) is a statutory
condition precedent to a [plaintiff’s] bringing of a proceeding against a school district or board of
education, and a [plaintiff’s] failure to comply is a fatal defect mandating dismissal of the
action.” Carlson v. Geneva City Sch. Dist., 679 F. Supp. 2d 355, 366 (W.D.N.Y. 2010) (internal
quotation marks omitted). Moreover, plaintiffs must plead compliance with § 3813(1)’s
requirements. See Thomas v. N.Y.C. Dep’t of Educ., 938 F. Supp. 2d 334, 360 (E.D.N.Y. 2013)
(“[Section 3813(1)] specifically requires a plaintiff to plead compliance with § 3813(1)’s notice
of claim requirements.”).
Plaintiff argues that she satisfied § 3813(1)’s notice of claim requirement in two different
ways. First, Plaintiff contends that the letters she sent to the School District’s Superintendent in
October and November 2013 constitute service upon the governing body. (See Am. Compl. Exs.
3-A, 3-B.) This argument is unavailing because courts have consistently held that service of a
notice of claim upon a superintendent does not satisfy § 3813(1)’s requirements. See Spoleta
Constr. & Dev. Corp. v. Bd. of Educ. of Byron-Bergen Cent. Sch. Dist., 634 N.Y.S.2d 300, 301
(App. Div. 1995) (“[The] plaintiff’s delivery of the letter to the [s]uperintendent of [s]chools
does not constitute service upon the [b]oard.”); Ricketson v. Cambridge Cent. Sch. Dist., 611
N.Y.S.2d 49, 50 (App. Div. 1994) (holding that providing notice to the yearbook advisor, the
principal, and the superintendent did not satisfy § 3813(1)); Jackson v. Bd. of Educ., ColtonPierpoint Cent. Sch. Dist., 598 N.Y.S.2d 842, 844 (App. Div. 1993) (holding that the plaintiff
failed to satisfy the notice of claim requirement because the plaintiff “served the notice of claim
solely on the [s]uperintendent, who [was] not a member of the governing body or the clerk of the

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governing body”); see also Meyer v. William Floyd Union Free Sch. Dist., No. 07-CV-2524,
2008 WL 4415271, at *9 (E.D.N.Y. Sept. 24, 2008) (holding that complaints made to a
superintendent and an assistant superintendent of personnel did not satisfy § 3813’s
requirements).
Second, Plaintiff contends that her counsel’s communications with the lawyer
representing the School District constitute service on the governing body. This argument is also
unavailing because Plaintiff has not cited a single case to support her position. The New York
Court of Appeals is clear that service upon a person or entity that is not the governing body is
insufficient to satisfy the notice of claim requirement. See Parochial Bus, 458 N.E.2d at 1245
(holding that § 3813(1)’s notice of claim requirement “is not satisfied by presentment to any
other individual or body”). As Chief Judge Cardozo long ago explained, where the “[l]egislature
has said that a particular form of notice, conveyed with particular details to particular public
officers, shall be a prerequisite to the right to sue[,] [t]he courts are without power to substitute
something else.” Thomann v. City of Rochester, 176 N.E. 129, 131 (N.Y. 1931). And, Chief
Judge Cardozo further explained, what satisfies such a statute (like § 3813) “is not knowledge of
the wrong . . . [but] notice of the ‘claim.’” Id. Moreover, and contrary to Plaintiff’s arguments,
(see Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. To Dismiss (“Pl.’s Opp’n”) 15 (Dkt. No. 23)
(arguing that “presentation by defense counsel satisfied . . . § 3813(1))), the facts alleged in the
Amended Complaint and in the documents attached to it do not support the fact that the lawyer
ever presented Plaintiff’s claims to the Board of Directors. At some point during their
communications, the School District’s lawyer represented that he was going to or had to present
Plaintiff’s demands to the Board of Directors in December 2013. (Am. Compl. Ex. 3-E.)
Plaintiff does not, however, allege that the School District’s lawyer did in fact present Plaintiff’s

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demands to the Board. Therefore, Plaintiff’s NYSHRL claim fails for much the same reasons as
discussed above—she did not timely serve a notice of claim on the governing body.2
Accordingly, Plaintiff’s NYSHRL claim against the School District is dismissed with
prejudice.
C. Plaintiff’s NYSHRL Claim Against Muhammad
In opposition to Defendants’ Motion, Plaintiff agreed to withdraw without prejudice the
NYSHRL claim she asserted against Muhammad. (Pl.’s Opp’n 16.) The Court assumes that
Plaintiff intended to withdraw this claim pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(i). See Youssef v. Tishman Constr. Corp., 744 F.3d 821, 823 (2d Cir. 2014)
(“Subject to any applicable federal statute, a plaintiff may voluntarily dismiss an action by filing
a notice of dismissal before the opposing party serves either an answer or a motion for summary
judgment.”). Accordingly, Defendants’ Motion, to the extent that it seeks to dismiss the
NYSHRL claim asserted against Muhammad, is denied as moot. The NYSHRL claim asserted
against Muhammad is dismissed without prejudice pursuant to Rule 41(a)(1)(A)(i). Because the
only claim asserted against Muhammad is the NYSHRL claim, Muhammad shall be dismissed
from the case.3

Plaintiff’s counsel has submitted an affirmation in opposition to Defendants’ Motion
containing facts not alleged in the Amended Complaint. (See Dkt. No. 22.) The affirmation’s
factual representations, however, do not alter the fact that Plaintiff has not demonstrated
compliance with § 3813(1)’s requirements.
2

Plaintiff’s Amended Complaint is not the model of clarity. It is possible Plaintiff sought
to assert a Title VII claim against Muhammad. That claim, however, fails as a matter of law
because “Title VII does not impose liability on individuals.” Lore v. City of Syracuse, 670 F.3d
127, 169 (2d Cir. 2012). Thus, all of the claims asserted against Muhammad have been
dismissed.
3

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III. Conclusion
For the foregoing reasons, Defendants' Motion is granted in part and denied in part. The
NYSHRL claim asserted against the School District is dismissed with prejudice, but the claim
asserted against Muhammad is dismissed without prejudice. 4 The Clerk of Court is respectfully
directed to terminate the pending Motion, (Dkt. No. 16), and to dismiss Dr. Muhammad from the
case.
SO ORDERED.
DATED:

March ad.,_2017 .
White Plains, New York

4

As this Court' s ruling is grounded on Plaintiffs failure to plead compliance with
§ 3813, and Plaintiff has already been provided with a second opportunity to do so, Plaintiffs
NYSHRL claim asserted against the School District is dismissed with prejudice. See Denny v.
Barber, 576 F.2d 465, 471 (2d Cir. 1978) (holding that the plaintiff was not entitled to "a third
go-around"); Melvin v. County of Westchester, No. 14-CV -2995, 2016 WL 1254394, at *24 n. l9
(S.D.N.Y. Mar. 29, 2016) (granting motion to dismiss with prejudice where " [the] [p]laintiffhas
already had two bites at the apple, and they have proven fruitless" (alteration and internal
quotation marks omitted)).

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