Ahmad v. White Plains City School District et al

Filing 58

OPINION AND ORDER: For the foregoing reasons, the Union Defendants' Motion is granted, and the White Plains Defendants' Motion is granted in part and denied in part. All of Plaintiff's claims except for his procedural due process cl aim based on his termination without a prior hearing are dismissed. However, because this is the first adjudication of Plaintiff's claims on the merits, the dismissal is without prejudice. See Terry v. Inc. Vil/. of Patchogue, 826 F.3d 631, 63 3 (2d Cir. 2016) (explaining that "district judges should, as a general matter, liberally permit pro se litigants to amend their pleadings" unless "amendment would be futile"). Should Plaintiff choose to file a third amended com plaint, he must do so within 30 days of this Opinion, addressing the deficiencies identified herein. The third amended complaint will replace, not supplement, the Second Amended Complaint currently before the Court. It therefore must contain all o f the claims and factual allegations Plaintiff wishes the Court to consider. The Court will not consider factual allegations raised in supplemental declarations, affidavits, or letters. If Plaintiff fails to abide by the 30-day deadline, this actio n will proceed solely on Plaintiff's procedural due process claim. The Clerk of Court is respectfully requested to terminate the pending Motions, (see Dkt. Nos. 42, 43), and mail a copy of this Opinion to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 7/15/2019) (jca) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MUSHTAQ AHMAD,
Plaintiff,
18-CV-3416 (KMK)

v.
WHITE PLAINS CITY SCHOOL DISTRICT,
et. al.,

OPINION & ORDER

Defendants.

Appearances:
Mushtaq Ahmad
New City, NY
Pro se Plaintiff
Gerald Stephen Smith, Jr., Esq.
Silverman and Associates
White Plains, NY
Counsel for White Plains Defendants
Michael James Del Piano, Esq.
New York State United Teachers Office of General Counsel
New York, NY
Counsel for Union Defendants
KENNETH M. KARAS, United States District Judge:
Pro se Plaintiff Mushtaq Ahmad (“Plaintiff”) brings this Action against the White Plains
Teachers Association (“WPTA”), the New York State United Teachers (“NYSUT”), Cairenn
Broderick (“Broderick”), John Hughes (“Hughes”), and Carol Ann Tito (“Tito”) (together, the
“Union Defendants”), and the White Plains City School District (“WPCSD”), Howard W. Smith
(“Smith”), Dr. Corey Reynolds (“Reynolds”), Ellen Doherty (“Doherty”), John Orcutt
(“Orcutt”), Dr. Margaret Doty (“Doty”), Jeffrey Hirsch (“Hirsch”), Mark Wolstencroft
(“Wolstencroft”), Vincent Dougherty (“Dougherty”), and Akiva Friedman (“Friedman”)

(together, the “White Plains Defendants”) (collectively, “Defendants”), under Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17; the Age Discrimination
in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634; 42 U.S.C. §§ 1981, 1983, and
1985; the Due Process Clause of the Fourteenth Amendment; the First Amendment; the New
York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290 to 297; and the
Westchester County Human Rights Law (“WCHRL”), along with common law claims, alleging
that his employer, the White Plains City School District, discriminated against him based on his
religion, race, color, nationality, and age. (Second Am. Compl. (“SAC”) (Dkt. No. 31).) Before
the Court is Defendants’ Motions To Dismiss the Second Amended Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). (See Union Defs.’ Not. of Mot. (Dkt. No. 42); White
Plains Defs.’ Not. of Mot. (Dkt. No. 43).) For the reasons to follow, the Union Defendants’
Motion is granted, and the White Plains Defendants’ Motion is granted in part and denied in part.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Second Amended Complaint and are
assumed true for the purpose of deciding the instant Motion.
Plaintiff is a 60-year-old male; he is a naturalized U.S. citizen originally from Pakistan,
and a practicing Muslim. (SAC ¶¶ 4, 22.) Defendant WPCSD hired Plaintiff as a “leave
replacement chemistry teacher against a permanent vacancy” at White Plains High School
(“WPHS”), which had opened due to the death of the prior chemistry teacher. (Id. ¶ 23.)
Although Plaintiff was originally scheduled to begin his employment on September 13, 2016,
Defendant Reynolds, who was the Assistant Superintendent of WPCSD, (id. ¶ 9), contacted
Plaintiff on September 6, 2016 and asked him to start work the next morning, on September 7,

2

2016, (id. ¶ 25). Plaintiff’s students “performed great on the quarterly exams,” and Plaintiff
received praise “by his immediate supervisor” after she reviewed the students’ exams. (Id. ¶ 27.)
At some point, lab equipment was removed from Plaintiff’s classroom; Plaintiff asserts “[u]pon
information and belief” that this was done to “create hardship on Plaintiff and to make [him] fail
due to unequal access to the lab equipment.” (Id. ¶ 29.) Plaintiff asked Defendant Dougherty, a
chemistry teacher at WPHS, (id. ¶ 18), about the lab equipment, and Dougherty told Plaintiff that
“Mr. Braswell,” an African-American chemistry teacher, stole it from Plaintiff’s lab, (id. ¶ 30).
However, a few days later when asked again, Dougherty said that Defendant Friedman, a
Caucasian chemistry teacher, took the equipment. (Id. ¶¶ 30, 33.) Plaintiff alleges that
Dougherty “numerous times made fun of Plaintiff’s clothes, shoes, tie, sweaters, shirts, coats[,]
and lab coat,” and “called him a hotel waiter based on his facial features, race, skin color[,] and
national origin,” saying that “when he goes to [a] hotel he sees so many people from [the] Indian
Subcontinent working as hotel waiters.” (Id. ¶ 35.)
Separately, Plaintiff alleges that Defendant Hirsch, a guidance counselor at WPHS, (id.
¶ 13), held numerous meetings with one of Plaintiff’s students to discuss concerns the student
had about Plaintiff, (id. ¶ 37). At some point, Hirsch, Plaintiff, the student, and Defendant Doty,
the Coordinator of Science and Engineering at WPHS, (id. ¶ 12), met to discuss the student’s
concerns and her desire to “bring more students to Dr. Doty’s office in support of her allegation
against Plaintiff,” and Dr. Doty “said to [the student] . . . that it will provide proof that you . . .
are involved in organizing students’ protests against Plaintiff.” (Id. ¶ 39.) Plaintiff alleges that
he informed Doty “that he was forced to ask for help in finding out who was behind” the student
protests. (Id. ¶ 40.)

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On an unspecified date, Defendant Wolstencroft, a fellow teacher and mentor assigned to
Plaintiff by “WPCSD and/or WPTA,” told Plaintiff, “we don’t like colored people in the
department,” and disclosed that he was once the subject of an investigation because of charges of
racism brought “against him and the whole school staff.” (Id. ¶ 46.) The “whole school staff had
to go through some type of training because of his actions,” but no other disciplinary actions
were taken against Wolstencroft. (Id.) Wolstencroft also told Plaintiff that he knew about
Plaintiff’s lawsuit against the East Ramapo Central School District and that he “knows
everything about East Ramapo.” (Id. ¶ 47.) Wolstencroft then said to Plaintiff, “you are a dumb
ass; you did not do your homework.” (Id. ¶ 48.)
One day, Wolstencroft told Plaintiff to paste WPCSD’s “Discipline Guidelines” on each
lab station in his classroom “and enforce them in their totality or get fired.” (Id. ¶ 50.) In
December 2016, Plaintiff complied with this directive, posting the Discipline Guidelines on each
lab station and informing his students that the rules will be enforced. (Id. ¶ 51.) The Guidelines
included a rule indicating that use of electronic devices is an infraction, and that “possible
consequences” include confiscation of the electronic device. (Id. ¶ 58.) On December 20, 2016,
two students sat next to each other in Plaintiff’s class and sent text messages to others on their
cell phones. (Id. ¶¶ 43, 53.) Plaintiff attempted to confiscate the students’ phones pursuant to the
Discipline Guidelines. (Id. ¶ 54.) One student complied, but the other put her phone in her bag,
and told Plaintiff, “shut up and teach the class.” (Id. ¶¶ 54–55.) Plaintiff attempted to retrieve
the student’s phone from her bag; when he did so, the student picked up her bag, and the bag’s
strap got tangled around Plaintiff’s wrist. (Id. ¶ 56.) The student pulled on the bag, and Plaintiff
“did not release” the strap right away in order to prevent the student from falling backwards in
her chair. (Id. ¶¶ 56–57.)

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The next day, Defendant Doherty, Principal of WPHS, (id. ¶ 10), told Plaintiff that he
would be reassigned to the “science teachers work area,” and that he was not allowed to interact
with students. (Id. ¶ 61.) On December 22, 2016, Doty brought Plaintiff to “a small room inside
the main office,” and ordered him to sit in isolation “without providing any reason or
explanation.” (Id. ¶ 63.) The room was guarded by a police officer, who was directed “not to let
Plaintiff go out of the room wherein he was detained against his will.” (Id. ¶ 66.) Eventually,
Defendant Broderick, President of WPTA, and Defendant Hughes, Chairperson of the WPTA
Grievance Committee, arrived and “tried to force Plaintiff to sign a waiver” indicating he would
not sue WPCSD. (Id. ¶ 67.) When Plaintiff refused to sign, Broderick and Hughes “demanded
the school keys back from Plaintiff” and “told him that the Superintendent of school had told . . .
Broderick the previous night that he was going to terminate Plaintiff,” and that he would not be
allowed to enter the school building. (Id. ¶ 68.) Broderick and Hughes then “paraded” Plaintiff,
accompanied by a police officer, through the hallways in the presence of students and other
school staff, forced him to remove his belongings from his classroom, and took his school keys.
(Id. ¶ 69.) Plaintiff received a letter dated December 23, 2016 from Reynolds directing Plaintiff
not to enter any WPCSD property without prior permission, and to refrain from contacting or
communicating with any WPCSD employees. (Id. ¶ 74.)
At a meeting on January 18, 2017, which Broderick and Reynolds attended, Plaintiff
fainted “due to the injuries caused or aggravated by the actions of the Defendants.” (Id. ¶ 75.)
Plaintiff alleges that “WPCSD and WPTA failed in transporting [him] to [a] nearby hospital.”
(Id. ¶ 76.)
On February 3, 2017, Defendant Smith, Superintendent of WPCSD, (id. ¶ 8), “reiterated
. . . that he would recommend Plaintiff’s termination,” (id. ¶ 77). On February 13, 2017, Smith

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recommended to the School Board that they should “retroactively convert Plaintiff’s leavereplacement appointment to a probationary appointment,” which the Board approved. (Id. ¶ 78.)
Plaintiff was not allowed to return to work, and Smith again recommended Plaintiff for
termination on February 17, 2017. (Id. ¶¶ 79–80.) Plaintiff was ultimately terminated on April
19, 2017. (Id. ¶ 81.) Plaintiff was replaced by “a very young female teacher of a different race.”
(Id. ¶ 84.)
Plaintiff alleges that WPTA and NYSUT “refused to file a requested grievance” on his
behalf, and that he was effectively barred from going to the WPTA office because it is located on
WPCSD property. (Id. ¶¶ 85–86.) Plaintiff also asserts that Reynolds promised to investigate
Plaintiff’s claims of discrimination, harassment, and hostile work environment, but that he has
never “been provided a copy of the investigation report.” (Id. ¶ 90.)
B. Procedural History
Plaintiff filed the original Complaint on April 18, 2018. (Compl. (Dkt. No. 2).) On April
19, 2018, Plaintiff was granted permission to proceed in forma pauperis. (Dkt. No. 3.) The
Court issued an Order of Service on April 27, 2018, in which it ordered Plaintiff to show cause
why his claims against Defendants Hirsch, Dougherty, and Friedman, as well as three students
named in the Complaint, should not be dismissed for failure to state a claim, and directed service
on the remaining Defendants. (See Order of Service (Dkt. No. 5).) Plaintiff responded to the
Order on May 25, 2018. (Dkt. No. 10.) Also on May 25, 2018, Plaintiff sought leave to file an
amended complaint, (Dkt. No. 7), which the Court granted on May 31, 2018, (Dkt. No. 11).
Plaintiff filed the First Amended Complaint on June 22, 2018. (First Am. Compl.
(“FAC”) (Dkt. No. 15).) The Court directed service on Hirsch, Dougherty, and Friedman on July
13, 2018, (Dkt. No. 16), but dismissed Plaintiff’s claims against the three students without

6

prejudice for failure to state a claim, (Dkt. No. 18). On August 13, 2018, Plaintiff filed the
operative Second Amended Complaint. (SAC.) On October 24, 2018, the Court dismissed
Plaintiff’s claims against the three students with prejudice for failure to state a claim. (Dkt. No.
41.)
On November 5, 2018, with leave of the Court, Defendants filed the instant Motions To
Dismiss. (Union Defs.’ Not. of Mot.; Union Defs.’ Not. of Mot. Ex. 6 (Union Defs.’ Mem. of
Law in Supp. of Mot.) (“Union Defs.’ Mem.”); White Plains Defs.’ Not. of Mot.; White Plains
Defs.’ Mem. of Law in Supp. of Mot. (“White Plains Defs.’ Mem.”) (Dkt. No. 45); White Plains
Defs.’ Decl. in Supp. of Mot. (“White Plains Defs.’ Decl.”) (Dkt. No. 44).) 1 Plaintiff filed a
letter on December 3, 2018, seeking a stay of this Action due to illness and requesting he be
appointed pro bono counsel. (Dkt. No. 49.) The Court directed Plaintiff to submit his medical
records under seal in order to have his application considered, (Dkt. No. 50), which Plaintiff did
on January 7, 2019, (Dkt. No. 55). On January 9, 2019, the Court denied Plaintiff’s Motion for a
stay and for appointment of counsel. (Dkt. No. 57.) Plaintiff never filed a response to the
Motions, and the Motions are hereby deemed fully submitted.
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a Motion To Dismiss, “a plaintiff’s obligation to provide the grounds of
his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of

1

Because the Union Defendants improperly filed their Motion papers as a single
document with several attachments, and only assigned exhibit letters to certain documents, the
Court will cite each document as an exhibit to the Notice of Motion, and assign exhibit numbers
based on the order in which each document was attached.
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the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). “Nor does a complaint
suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (alteration and
quotation marks omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim
has been stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a
claim to relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her]
claims across the line from conceivable to plausible, the[] complaint must be dismissed,” id.; see
also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” (citation omitted) (second alteration in
original) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous
departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the
doors of discovery for a plaintiff armed with nothing more than conclusions.”).
In considering Defendants’ Motions, the Court is required to “accept as true all of the
factual allegations contained in the [C]omplaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the Court
must “draw[] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc.,

8

992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141,
145 (2d Cir. 2012)). Where, as here, a plaintiff proceeds pro se, the Court must “construe[] [his
complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].”
Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted).
However, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from
compliance with relevant rules of procedure and substantive law.” Bell v. Jendell, 980 F. Supp.
2d 555, 559 (S.D.N.Y. 2013) (quotation marks omitted).
B. Analysis
Plaintiff asserts that Defendants’ conduct violated his rights under Title VII, the ADEA,
42 U.S.C. §§ 1981, 1983, and 1985, the First and Fourteenth Amendments; the First Amendment;
the NYSHRL, and the WCHRL. Plaintiff also brings claims against WPCSD for breach of the
Teachers’ Collective Bargaining Agreement (“CBA”) and defamation, and claims against WPTA
and NYSUT for breach of the Duty of Fair Representation. (See SAC ¶¶ 92–129; see also White
Plains Defs.’ Decl. Ex. 2 (“CBA”).) 2
1. Discrimination Claims
Plaintiff asserts that his treatment by Defendants, culminating in his termination,
constitutes discrimination based on race, religion, national origin, age, and gender under Title

2

Although not attached to the Second Amended Complaint, Plaintiff asserts a claim
based on breach of the CBA and quotes specific provisions of the CBA in crafting his claim.
(See SAC ¶¶ 62, 64, 89, 116–117.) The CBA is therefore incorporated by reference, and the
Court will consider it in deciding Defendants’ Motions. See Hutson v. Notorious B.I.G., LLC,
No. 14-CV-2307, 2015 WL 9450623, at *3 (S.D.N.Y. Dec. 22, 2015) (considering contract not
attached to the complaint in copyright ownership dispute “because it is incorporated by
reference”); Onanuga v. Pfizer, Inc., No. 03-CV-5405, 2003 WL 22670842, at *4 (S.D.N.Y. Nov.
7, 2003) (holding the court could consider a contract provided by the defendants but not attached
to the complaint “because this contract was referenced in and relied upon in the drafting the
[c]omplaint, and forms the basis for the [breach of contract] allegations”).
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VII, the ADEA, 42 U.S.C. §§ 1981 and 1985, §§ 102 and 103 of the Civil Rights Act of 1991,
the NYSHRL, and the WCHRL. Each of these claims, excluding Plaintiff’s claims under
§ 1985, the Civil Rights Act, and the WCHRL, is analyzed under the same standard. See Vill. of
Freeport v. Barrella, 814 F.3d 594, 607 (2d Cir. 2016) (noting that “claims of racial
discrimination [are analyzed] identically under Title VII and § 1981”); Pucino v. Verizon
Wireless Commc’ns, Inc., 618 F.3d 112, 117 n.2 (2d Cir. 2010) (“We review discrimination
claims brought under the NYSHRL according to the same standards that we apply to Title VII
discrimination claims.”); Maines v. Last Chance Funding, Inc., No. 17-CV-5453, 2018 WL
4558408, at *14 (E.D.N.Y. Sept. 21, 2018) (“The analytical frameworks for adjudicating
wrongful termination claims under Title VII, [§] 1981, and the NYSHRL are identical.”), as
amended, 2018 WL 4610898 (E.D.N.Y. Sept. 25, 2018); Barbosa v. Continuum Health Partners,
Inc., 716 F. Supp. 2d 210, 217 (S.D.N.Y. 2010) (“[C]laims brought under [§] 1981 [and New
York law] are generally analyzed under the same evidentiary framework that applies to Title VII
and ADEA claims.”). 3

3

Because there is no private right of action under the WCHRL, see Garcia v. Yonkers Bd.
of Educ., 188 F. Supp. 3d 353, 364 (S.D.N.Y. 2016), that claim is dismissed. See Tuman v. VL
GEM LLC, No. 15-CV-7801, 2017 WL 781486, at *1 n.1 (S.D.N.Y. Feb. 27, 2017) (noting that,
unlike Westchester County’s Fair Housing Law, the Westchester County Human Rights Law
does not “provide[] for a private right of action”). Additionally, §§ 102 and 103 of the Civil
Rights Act of 1991 merely provide for a jury trial and compensatory damages for violations of
Title VII respectively. See Landgraf v. USI Film Prod., 511 U.S. 244, 247 (1994) (“The Civil
Rights Act of 1991 . . . creates a right to recover compensatory and punitive damages for certain
violations of Title VII of the Civil Rights Act of 1964.”); Postema v. Nat’l League of Prof’l
Baseball Clubs, 998 F.2d 60, 61 (2d Cir. 1993) (noting that the Civil Rights Act of 1991 granted
“certain plaintiffs asserting claims under the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
the right to request trials by jury and to seek compensatory and punitive damages”). Therefore,
Plaintiff may not assert an independent claim based on these provisions, and these claims are
dismissed. Finally, the Court notes that although Plaintiff construes his § 1983 claim as based on
violation of Title VII, a § 1983 claim is precluded by a Title VII claim unless “the former is
based on substantive rights distinct from Title VII.” Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d
134, 143 (2d Cir. 1993) (emphasis added) (citation and quotation marks omitted); see also id.
10

a. Wrongful Termination
“To state a prima facie claim for employment discrimination under § 1981, Title VII,
ADEA, or New York law, a plaintiff must show (1) that he is a member of a protected class; (2)
that he was qualified for the position in question; (3) that defendants took an adverse
employment action against him; and (4) that the circumstances support an inference of
discrimination on the basis of his membership in a protected class.” Williams v. N.Y.C. Transit
Auth., No. 10-CV-882, 2014 WL 11474810, at *2 (E.D.N.Y. Sept. 16, 2014) (citation and italics
omitted), aff’d, 620 F. App’x 63 (2d Cir. 2015). “Employment discrimination claims need not
contain specific facts establishing a prima facie case of discrimination.” See Drew v. Plaza
Constr. Corp., 688 F. Supp. 2d 270, 275 (S.D.N.Y. 2010) (citation omitted). “Rather, an
employment discrimination complaint ‘must include only a short and plain statement of the
claim that gives the defendant fair notice of what the plaintiff’s claim is and the grounds upon
which it rests.’” Id. (alterations omitted) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506,
512 (2002)). The Second Circuit has explained that “what must be plausibly supported by facts
alleged in the complaint is that the plaintiff is a member of a protected class, was qualified,
suffered an adverse employment action, and has at least minimal support for the proposition that
the employer was motivated by discriminatory intent.” Littlejohn v. City of New York, 795 F.3d
297, 311 (2d Cir. 2015). “The facts required . . . to be alleged in the complaint need not give
plausible support to the ultimate question of whether the adverse employment action was
attributable to discrimination,” but rather the alleged facts “need only give plausible support to a

(“A plaintiff cannot use [§] 1983 to gain perceived advantages not available to a Title VII
claimant, but a plaintiff can assert a claim under [§] 1983 if some law other than Title VII is the
source of the right alleged to have been denied.” (citation omitted)). The Court will therefore
construe Plaintiff’s § 1983 claim as relating only to his constitutional claims.
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minimal inference of discriminatory motivation.” Id.; see also Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) (“[A] plaintiff must allege that the employer took
adverse action against [him or] her at least in part for a discriminatory reason, and [he or] she
may do so by alleging facts that directly show discrimination or facts that indirectly show
discrimination by giving rise to a plausible inference of discrimination.”). Thus, to survive a
motion to dismiss, a plaintiff need “not plead a prima facie case of discrimination,” Swierkiewicz,
534 U.S. at 515, but “must plead enough facts to state a discrimination claim that is plausible on
its face,” Roman-Malone v. City of New York, No. 11-CV-8560, 2013 WL 3835117, at *4
(S.D.N.Y. July 25, 2013) (citation omitted). Courts making the plausibility determination “must
be mindful of the elusive nature of intentional discrimination,” and the concomitant frequency by
which plaintiffs must “rely on bits and pieces of information to support an inference of
discrimination, i.e., a ‘mosaic’ of intentional discrimination.” Vega, 803 F.3d at 86 (citation,
italics, and some quotation marks omitted).
With respect to Plaintiff’s claims of discrimination based on race, religion, gender, and
national origin, there are only three allegations that can be construed as arguably supporting an
inference of discrimination with respect to Plaintiff’s termination. The first is that Dougherty
“called [Plaintiff] a hotel waiter based on his facial features, race, skin color[,] and national
origin,” saying that “when he goes to [a] hotel he sees so many people from [the] Indian
Subcontinent working as hotel waiters.” (SAC ¶ 35.) The second is that Wolstencroft told
Plaintiff, “we don’t like colored people in the department,” and disclosed that he was once
subject of an investigation because of charges of racism brought “against him and the whole
school staff,” and that he was ultimately not disciplined for the unspecified underlying conduct.

12

(Id. ¶ 46.) The third is that Plaintiff was ultimately replaced by “a very young female teacher of
a different race.” (Id. ¶ 84.)
“[S]tray remarks alone do not support a discrimination suit.” Danzer v. Norden Sys.,
Inc., 151 F.3d 50, 56 (2d Cir. 1998) (quotation marks omitted); see also Brown v. County of Erie,
No. 12-CV-251, 2013 WL 885993, at *7 (W.D.N.Y. Mar. 8, 2013) (“Courts have routinely held
that stray remarks by non-decision makers are insufficient, without other evidence, to raise an
inference of discrimination.” (citation and quotation marks omitted)). “In determining whether a
remark is probative [of discriminatory intent], [courts] have considered four factors: (1) who
made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the
remark was made in relation to the employment decision at issue; (3) the content of the remark
(i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in
which the remark was made (i.e., whether it was related to the decision-making process).”
Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010). “Isolated comments, while
potentially offensive, do not lead to an inference of discriminatory intent.” Luka v. Bard Coll.,
263 F. Supp. 3d 478, 487 (S.D.N.Y. 2017).
Dougherty and Wolstenscroft, like Plaintiff, are teachers at WPHS, and Plaintiff alleges
no facts indicating that either one had decision-making authority with respect to personnel
decisions, or were otherwise involved with Plaintiff’s termination. There are no allegations from
which the Court could infer that anyone involved in the decision to terminate Plaintiff’s
employment was even aware of these comments. Courts in the Second Circuit routinely dismiss
discrimination claims where the only allegations made in support are stray remarks by nondecisionmakers wholly unconnected to the adverse employment action underlying the claim.
See, e.g., Lebowitz v. New York City Dep’t of Educ., No. 15-CV-2890, 2017 WL 1232472, at *10

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(E.D.N.Y. Mar. 31, 2017) (granting motion to dismiss Title VII claim where the plaintiff alleged
school administrators made several derogatory comments about the plaintiff’s national origin
because “[s]uch stray remarks, . . . even if made by a decisionmaker, without more, cannot get a
discrimination suit to a jury.” (citation and quotation marks omitted)); Luka, 263 F. Supp. 3d at
487 (granting motion to dismiss where “the alleged [discriminatory] remark was neither made
close in time to the decision nor in relation to the specific employment decision challenged”);
Soloviev v. Goldstein, 104 F. Supp. 3d 232, 249 (E.D.N.Y. 2015) (granting motion to dismiss
where the plaintiffs “fail[ed] to allege that any of the named [i]ndividual . . . [d]efendants or
anyone with control over the decision to fire [the plaintiff] made [the alleged discriminatory]
comments”); Paul v. Postgraduate Ctr. for Mental Health, 97 F. Supp. 3d 141, 167–68 (E.D.N.Y.
2015) (holding that “two remarks referencing [the] Plaintiff’s national origin and age” are “the
very definition of what constitutes ‘stray remarks’ under employment discrimination law”
(citations and some quotation marks omitted)).
Further, Plaintiff himself indicates that he was “terminated . . . for following the Rules
and Code of Conduct,” (SAC ¶ 82), a reference to his interaction with two students while
attempting to confiscate their cell phones on December 20, 2016, the day before he was removed
from his classroom, (id. ¶¶ 58–59). Plaintiff thus alludes to the fact that his conduct on
December 20, 2016, rightly or wrongly, was the basis for his termination. The fact that Plaintiff
identifies a non-discriminatory basis for his termination undermines any potential inference that
he was terminated based on his race, national origin, or religion. See Powell v. Merrick Acad.
Charter Sch., No. 16-CV-5315, 2018 WL 1135551, at *7 (E.D.N.Y. Feb. 28, 2018) (dismissing
Title VII claims where the complaint included “allegations that actually undermine the inference
that she was fired for discriminatory reasons”); Frederick v. United Bhd. of Carpenters & Joiners

14

of Am. (UBCJA) Local 926, No. 12-CV-2387, 2014 WL 5783045, at *3 (E.D.N.Y. Nov. 6, 2014)
(dismissing Title VII claims where “[the] [p]laintiff’s own allegations suggest that she was
terminated” for race-neutral reasons (citations omitted)); Hussey v. N.Y.S. Dep’t of Law/Office of
Att’y Gen., 933 F. Supp. 2d 399, 407 (E.D.N.Y. 2013) (“Though [the] plaintiff insists that [the
defendant’s stated justification] was ‘a pretext to cover up racial discrimination,’ she offers no
facts in support of that claim and therefore fails to allege sufficiently that the failure to promote
her . . . was based on her race.” (citation omitted)). In light of the fact that the only allegations
reflecting discriminatory intent are stray comments by non-decisionmakers, the mere fact that
Plaintiff was ultimately replaced by someone of a different race does not nudge Plaintiff’s
discrimination claims across the line “from conceivable to plausible.” Twombly, 550 U.S. at 570;
see also Williams v. Calderoni, No. 11-CV-3020, 2012 WL 691832, at *7 (S.D.N.Y. Mar. 1,
2012) (“[I]t is hornbook law that the mere fact that something bad happens to a member of a
particular racial group does not, without more, establish that it happened because the person is a
member of that racial group.”), aff’d, 529 F. App’x 89 (2d Cir. 2013).
Similarly, Plaintiff’s only allegation with respect to gender discrimination is that the
WPHS Principal and Science Department Supervisor “are females,” and that he was terminated
and replaced with a female teacher. This is insufficient to state a claim for gender
discrimination. See Moore v. City of New York, No. 15-CV-6600, 2017 WL 35450, at *12
(S.D.N.Y. Jan. 3, 2017) (“Beyond merely identifying himself as an African American male and
noting that a number of [the] [d]efendants involved in the alleged adverse actions suffered by
[the plaintiff] are ‘white’ and/or ‘female,’ [the plaintiff] proffers no other facts to support his
claim that [the] [d]efendants took action against him because of his membership in a protected
class.”), adopted by 2017 WL 1064714 (S.D.N.Y. Mar. 20, 2017); Alvarez v. Rosa, No. 11-CV-

15

3818, 2012 WL 651630, at *4 (S.D.N.Y. Feb. 28, 2012) (holding that “[w]hile [the] plaintiff
identifies the age range, race[,] and national origin of the woman who was ultimately hired for
the . . . position” for which she was not hired, the plaintiff “does not allege facts from which the
[c]ourt might reasonably infer that such woman was promoted because of her race, national
origin[,] or age (as compared to [the] plaintiff’s)”); Kouakou v. Fideliscare New York, 920 F.
Supp. 2d 391, 398 (S.D.N.Y. 2012) (holding the fact that the plaintiff was of a different race than
all the members of the department into which he was denied transfer, together with a single stray
remark about the plaintiff’s race, “do not create an inference that the denial of [the] [p]laintiff’s
requested transfer [was] motivated by his race or national origin, particularly where [the]
[p]laintiff has not alleged that his employer granted the transfer requests of other similarly
situated employees outside of [the] [p]laintiff’s racial group” (citation, alterations, and quotation
marks omitted)).
Regarding Plaintiff’s age discrimination claim, the only allegation made in support is that
Plaintiff was replaced by “a very young female teacher.” (SAC ¶ 84.) “[A]n employer’s
decision to replace an older worker with a significantly younger one can support an inference of
intentional age discrimination . . . .” Woodman v. WWOR-TV, Inc., 411 F.3d 69, 78–79 (2d Cir.
2005). However, “an allegation that plaintiff was replaced by a younger employee is not
sufficient, without more, to survive a motion to dismiss.” Nance v. City of New York, No. 09-CV2786, 2011 WL 2837491, at *4 (E.D.N.Y. July 14, 2011); see also Marcus v. Leviton Mfg. Co.,
Inc., 661 F. App’x 29, 33 (2d Cir. 2016) (“Without more, the mere fact that an older employee
was replaced by a younger one does not plausibly indicate discriminatory motive.”); Maines,
2018 WL 4558408, at *16 (granting motion to dismiss ADEA claim where “[t]he only support
provided is that [the plaintiffs] were replaced by younger employees,” because “this allegation,

16

without more, cannot establish ‘but for’ causation”). Plaintiff does not allege that anyone ever
commented on his age or insinuated that he was too old to perform his job. Additionally, based
on his allegations, Plaintiff was hired when he was approximately 58, and thus already a member
of the class protected by the ADEA, further undermining any possible inference of age
discrimination relating to his termination. See Snowden v. Trs. of Columbia Univ., No. 12-CV3095, 2014 WL 1274514, at *8 (S.D.N.Y. Mar. 26, 2014) (“Where, as here, an employee is
already a member of the protected class when hired, any inference of age discrimination when
[the plaintiff’s] employment is terminated is undermined.”); Baguer v. Spanish Broad. Sys., No.
04-CV-8393, 2010 WL 2813632, at *14 (S.D.N.Y. July 12, 2010) (“Being in the protected class
when hired undermines any inference of age discrimination.”); Elfenbein v. Bronx Lebanon
Hosp. Ctr., No. 08-CV-5382, 2009 WL 3459215, at *7 (S.D.N.Y. Oct. 27, 2009) (noting that
because “[the] [p]laintiff was 68 and already a member of the protected class [when he was
hired],” “any finding of pretext” was “undermine[d]” (citations and quotation marks omitted)).
Finally, Plaintiff does not specify the age of the individual who was hired to replace him.
“Absent any indication of the younger individual’s age, any inference of discrimination on the
basis of this allegation would be purely speculative.” Shlafer v. Wackenhut Corp., 837 F. Supp.
2d 20, 26 (D. Conn. 2011) (citing Iqbal, 556 U.S. at 678); Payne v. Malemathew, No. 09-CV1634, 2011 WL 3043920, at *2 n.3 (S.D.N.Y. July 22, 2011) (noting that “allegations that [the]
plaintiff performed satisfactorily and was replaced with a younger person merely allow for the
possibility that age discrimination was at work but do not raise that possibility above a
speculative level”). Plaintiff therefore fails to create an inference of discriminatory intent with
respect to his age. See Williams v. Victoria’s Secret, No. 15-CV-4715, 2017 WL 384787, at *10
(S.D.N.Y. Jan. 27, 2017) (dismissing claim because the plaintiff’s “bare assertion that he was

17

replaced by a younger person is insufficient to create an inference of discriminatory intent”),
adopted by 2017 WL 1162908 (S.D.N.Y. Mar. 28, 2017), appeal dismissed, No. 17-1311, 2017
WL 5041006 (2d Cir. Sept. 13, 2017); Adams v. New York State Educ. Dep’t, 752 F. Supp. 2d
420, 465 (S.D.N.Y. 2010) (finding the plaintiffs’ age discrimination claim “insufficient as a
matter of law” where “[t]he claim merely alleges that [the] plaintiffs are over 40 years of age and
were replaced by younger teachers,” and therefore “merely repeats the statutory elements,
without setting out any facts from which age discrimination can be inferred”), aff’d, 460 F.
App’x 67 (2d Cir. 2012).
Because each of Plaintiff’s causes of action based on race, religion, age, gender, or
national origin discrimination requires that Plaintiff allege at least enough facts to “give plausible
support to a minimal inference of discriminatory motivation,” Luka, 263 F. Supp. 3d at 487, and
Plaintiff failed to do so, his claims based on his termination under Title VII, the ADEA, 42
U.S.C. § 1981, and the NYSHRL are all dismissed.
b. Hostile Work Environment
“Title VII prohibits an employer from discriminating in ‘compensation, terms, conditions,
or privileges of employment, because of [an] individual’s . . . race . . . or national origin.’”
Littlejohn, 795 F.3d at 320 (quoting 42 U.S.C. § 2000e–2(a)(1)). The phrase “terms, conditions,
or privileges of employment,” 42 U.S.C. § 2000e–2(a)(1), “evinces a congressional intent to
strike at the entire spectrum of disparate treatment, which includes requiring people to work in a
discriminatorily hostile or abusive environment.” Littlejohn, 795 F.3d at 320 (alterations and
quotation marks omitted). To establish a hostile work environment claim, “a plaintiff must show
that the ‘workplace is permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

18

abusive working environment.’” Id. at 320–21 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993)). At the motion-to-dismiss stage, “a plaintiff need only plead facts sufficient to
support the conclusion that []he was faced with ‘harassment of such quality or quantity that a
reasonable employee would find the conditions of [his] employment altered for the worse.’”
Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (alterations omitted) (quoting Terry v. Ashcroft,
336 F.3d 128, 148 (2d Cir. 2003)); see also Gonzalez v. City of New York, No. 15-CV-3158, 2015
WL 9450599, at *4 (E.D.N.Y. Dec. 22, 2015) (same).
“[A] work environment’s hostility should be assessed based on the totality of the
circumstances.” Patane, 508 F.3d at 113 (citation and quotation marks omitted); see also
Humphries v. City Univ. of N.Y., No. 13-CV-2641, 2013 WL 6196561, at *10 (S.D.N.Y. Nov. 26,
2013) (same). Relevant circumstances include: “(1) the frequency of the discriminatory conduct;
(2) its severity; (3) whether it is threatening and humiliating, or a mere offensive utterance; and
(4) whether it unreasonably interferes with an employee’s work performance.” Humphries, 2013
WL 6196561, at *10 (citing Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir.
2010)); see also Rivera v. Rochester Genesee Regional Trans. Auth., 743 F.3d 11, 20 (2d Cir.
2012) (same). “[W]hether a particular work environment is objectively hostile is necessarily a
fact-intensive inquiry,” and accordingly, the Second Circuit has “repeatedly cautioned against
setting the bar too high” in the context of a motion to dismiss. Patane, 508 F.3d at 113–14
(citation and quotation marks omitted); see also Humphries, 2013 WL 6196561, at *10 (same).
Nevertheless, the incidents of harassment, generally, “must be more than episodic; they
must be sufficiently continuous and concerted in order to be deemed pervasive.” Raspardo v.
Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (quoting Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.
2002)). “Isolated acts, unless very serious, do not meet the threshold of severity or

19

pervasiveness.” Keaton v. Conn. Dep’t of Rehab. Servs., No. 16-CV-1810, 2018 WL 1245728, at
*10 (D. Conn. Mar. 9, 2018) (quoting Alfano, 294 F.3d at 374). However, “even a single act can
meet the threshold if, by itself, it can and does work a transformation of the plaintiff’s
workplace.” Alfano, 294 F.3d at 374; see also Camarda v. City of New York, No. 11-CV-2629,
2015 WL 5458000, at *7 (E.D.N.Y. Sept. 16, 2015) (same), aff’d, 673 F. App’x 26 (2d Cir. Dec.
14, 2016).
Even liberally construed, the conduct alleged here is “quintessentially episodic.”
Harrison v. State Univ. of N.Y. Downstate Med. Ctr., No. 16-CV-1101, 2018 WL 4055278, at *11
(E.D.N.Y. July 6, 2018), adopted by 2018 WL 4054868 (E.D.N.Y. Aug. 24, 2018). Plaintiff
alleges that (1) Dougherty “numerous times made fun of Plaintiff’s clothes, shoes, tie, sweaters,
shirts, coats[,] and lab coat,” and “called him a hotel waiter based on his facial features, race,
skin color[,] and national origin,” saying that “when he goes to [a] hotel he sees so many people
from [the] Indian Subcontinent working as hotel waiters,” (id. ¶ 35), but includes no further
detail about the frequency or severity of such incidents; that Wolstencroft told Plaintiff, “we
don’t like colored people in the department,” and disclosed that he was once the subject of an
investigation because of charges of racism brought “against him and the whole school staff,” and
that he was ultimately not disciplined for the unspecified underlying conduct, (id. ¶ 46); that
students met with school administrators, including Hirsch, Doty, and Dougherty and made “false
allegations” against Plaintiff, including that he was not teaching chemistry sufficiently, and that
the students will not be prepared for the Regents Exam in June, (id. ¶¶ 38–41 & n.1); and that
students violated the school’s code of conduct in his class by, among other things, using their cell
phones, and were not disciplined, (id. ¶¶ 42–45). These isolated incidents, each of which
involves entirely different actors and only some of which plausibly suggest a discriminatory

20

motive, are insufficient to withstand a motion to dismiss. See Duplan v. City of New York, 888
F.3d 612, 627 (2d Cir. 2018) (affirming dismissal of complaint because allegations that the
plaintiff was ostracized by supervisors over three years and was suspended without pay for ten
days were insufficient to meet the “high bar” required to state a claim for a hostile work
environment); Harrison, 2018 WL 4055278, at *11–12 (dismissing hostile work environment
claims where the plaintiff “complain[ed] of five extremely unpleasant interactions” and
uncertainty about requested sick leave “over the course of several weeks”); Johnson v. Conn.
Dep’t of Admin. Servs. Bureau of Enter. Sys. & Tech., No. 17-CV-901, 2018 WL 306697, at *8
(D. Conn. Jan. 5, 2018) (allegations that a defendant “cited [the] plaintiff for an unauthorized
absence, gave him a negative evaluation, and denied him mentoring[,] do not rise to the level of
severe or pervasive and cannot be said to have altered the conditions of [the] plaintiff’s
employment for the worse”); Williams v. N.Y. State Unified Court Sys. Office of Court Admin.,
No. 16-CV-2061, 2017 WL 4402562, at *7 (S.D.N.Y. Sept. 30, 2017) (dismissing hostile work
environment claim based on allegations the plaintiff “was unjustly subjected to poor performance
reviews and was given additional duties above and beyond his regular assignments,” and
explaining that “[e]ven assuming that this conduct was motivated by discriminatory animus,” the
incidents were not sufficiently “severe or pervasive”); Guy v. MTA N.Y.C. Transit, No. 15-CV2017, 2016 WL 8711080, at *8 (E.D.N.Y. Sept. 23, 2016) (dismissing hostile work environment
claims where the plaintiff “simply identifies a series of incidents in his complaint,” but “fails to
allege any facts that would show that the conduct of which he complains is objectively severe
and pervasive”); Davis-Molinia v. Port Auth. of N.Y. & N.J., No. 08-CV-7584, 2011 WL
4000997, at *11 (S.D.N.Y. Aug. 19, 2011) (dismissing the plaintiffs’ hostile work environment
claims because “[t]he gravamen of their claims is rooted in conduct that amounts to nothing

21

more than workplace dynamics—that is, personal enmity or personality conflicts”), aff’d, 488 F.
App’x 530 (2d Cir. 2012).
Although “[f]acially neutral incidents,” such as Plaintiff’s allegations that students
misbehaved in his class and were not disciplined by the administration, “may be included, of
course, among the ‘totality of the circumstances’ that courts consider in any hostile work
environment claim,” this is only the case “so long as a reasonable fact-finder could conclude that
they were, in fact, based on” Plaintiff’s membership in a protected class. Alfano, 294 F.3d at
378; see also Lucio v. N.Y.C. Dep’t of Educ., 575 F. App’x 3, 5 (2d Cir. 2014) (affirming
dismissal of hostile work environment claim where the complaint pleaded no facts “that would
allow a court to draw a reasonable inference that [the plaintiff] was subjected to any
mistreatment or adverse action because of her race”); Dechberry v. N.Y.C. Fire Dep’t, 124 F.
Supp. 3d 131, 158 (E.D.N.Y. 2015) (holding that, “even construing all of the allegations as true
and drawing inferences liberally and in favor of the pro se plaintiff, there is no factual basis upon
which to conclude that any of [the] defendant’s actions were taken because of [the] plaintiff’s”
membership in a protected class). Here, Plaintiff has pled no facts that, even if true, could
support an inference that the facially neutral incidents he alleges reflect a discriminatory motive,
particularly in light of the fact that they involve different actors than the two individuals who
allegedly made remarks about Plaintiff’s race and national origin.
Finally, with respect to Plaintiff’s termination, as discussed above, Plaintiff has pled
insufficient facts to enable the Court to infer that his termination was discriminatory, and his
termination therefore does not bolster his hostile work environment claim. See Alfano, 294 F.3d
at 377 (“It is . . . important in hostile work environment cases to exclude from consideration
personnel decisions that lack a linkage or correlation to the claimed ground of discrimination.”).

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Thus, Plaintiff’s allegations, even if true, do not adequately plead that his workplace was
“permeated with discriminatory intimidation, ridicule, and insult, that [was] sufficiently severe or
pervasive to alter the conditions of [his] employment.” Mullins v. Consol. Edison Co. of N.Y.,
Inc., No. 13-CV-6800, 2015 WL 4503648, at *12 (S.D.N.Y. July 22, 2015) (quoting Aulicino v.
N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 82 (2d Cir. 2009)). “Simply stated, while Plaintiff
asserts facts suggesting that he may have suffered various unpleasant incidents at the workplace,
considering the allegations individually and in their totality, the factual allegations of the
[Amended Complaint] do not plausibly suggest sufficient severity, pervasiveness, or a race-based
motive.” Payne, 2011 WL 3043920, at *4 (citation omitted). Therefore, Plaintiff’s hostile work
environment claims are dismissed.
c. Retaliation
Title VII also prohibits discrimination against an employee “because he [or she] has
opposed any practice made an unlawful employment practice.” 42 U.S.C. § 2000e-3(a). Courts
analyze claims for retaliation pursuant to Title VII under the familiar framework set forth by the
Supreme Court in McDonnell Douglas. See Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843
(2d Cir. 2013) (“Federal and state law retaliation claims are reviewed under the burden-shifting
approach of McDonnell Douglas.”). “Under the first step of the McDonnell Douglas framework,
the plaintiff must establish a prima facie case of retaliation.” Id. at 844 (citation omitted). Once
the plaintiff has done so, “the burden shifts to the employer to articulate some legitimate, nonretaliatory reason for the employment action.” Id. at 845 (citation omitted). “The employee at
all times bears the burden of persuasion to show retaliatory motive.” Cox v. Onondaga Cty.
Sheriff’s Dep’t, 760 F.3d 139, 145 (2d Cir. 2014).

23

To establish a prima facie case of retaliation, the plaintiff must show that: “(1) []he was
engaged in an activity protected under Title VII; (2) [his] employer was aware of [his]
participation in the protected activity; (3) the employer took adverse action against [him]; and
(4) a causal connection existed between the protected activity and the adverse action.” Kwan,
737 F.3d at 850 (citation omitted). Accordingly, “for a retaliation claim to survive . . . a motion
to dismiss, the plaintiff must plausibly allege that: (1) defendants discriminated—or took an
adverse employment action—against him, (2) ‘because’ [he] has opposed any unlawful
employment practice.” Vega, 801 F.3d at 90; see also Shein v. N.Y.C. Dep’t of Educ., No. 15-CV4236, 2016 WL 676458, at *7 (S.D.N.Y. Feb. 18, 2016) (noting that unlike “discrimination
claims under Title VII, the plaintiff must plausibly allege that the retaliation was a but-for cause
of the employer’s adverse action” (citation and quotation marks omitted)); Goodine v. Suffolk
Cty. Water Auth., No. 14-CV-4514, 2016 WL 375049, at *6 (E.D.N.Y. Jan. 29, 2016) (same).
“The Supreme Court has held that in the context of a Title VII retaliation claim, an adverse
employment action is any action that ‘could well dissuade a reasonable worker from making or
supporting a charge of discrimination.’” Vega, 801 F.3d at 90 (quoting Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 57 (2006)); see also Hicks v. Baines, 593 F.3d 159, 162 (2d Cir.
2010) (“[R]etaliation is unlawful when the retaliatory acts were harmful to the point that they
could well dissuade a reasonable worker from making or supporting a charge of discrimination.”
(citation and quotation marks omitted)).
Plaintiff asserts that during his employment with WPCSD, Reynolds “promised Plaintiff
that a full investigation into his complaints of discrimination, harassment, [and] hostile and
unsafe work environment would be conducted.” (SAC ¶ 90.) Plaintiff alleges that “[t]hereafter,
[he] was informed by Dr. Reynolds that the school attorneys would conduct the investigation into

24

Plaintiff’s complaints.” (Id.) Plaintiff then conclusorily asserts that this fact “leads to [the]
reasonable conclusion that WPCSD attorneys attempted to create a cover-up to WPCSD’s wrong
done to Plaintiff,” and states that he was never “provided a copy of the investigation report.”
(Id.) Plaintiff then alleges that WPCSD and its employees retaliated against him “for his
complaints of discrimination.” (Id. ¶ 91.)
Construing Plaintiff’s allegations liberally, he alleges that he complained to Reynolds
about discriminatory treatment but that no investigation was ever performed. However, he
pleads no facts that could support an inference that he was terminated in response to those
complaints. “A plaintiff must plausibly plead a connection between the act and his engagement
in protected activity” in order to state a retaliation claim. Wilson v. New York, No. 15-CV-23,
2017 WL 9674497, at *14 (E.D.N.Y. Jan. 24, 2017) (citing 42 U.S.C. § 2000e-3(a)); Thior v.
JetBlue Airways, Inc., No. 13-CV-6211, 2016 WL 5092567, at *6 (E.D.N.Y. Sept. 19, 2016)
(dismissing retaliation claim where the complaint “does not allege facts which plausibly support
a causal connection, let alone the but-for causation required by federal law, between the
protected activity and the adverse employment action”). “In order to establish [the requisite]
causal connection, a plaintiff must allege (1) direct proof of retaliatory animus directed against
the plaintiff; (2) disparate treatment of similarly situated employees; or (3) that the retaliatory
action occurred close in time to the protected activities.” McNair v. NYC Health & Hosp. Co.,
160 F. Supp. 2d 601, 604 (S.D.N.Y. 2001) (citing DeCintio v. Westchester Cty. Med. Ctr., 821
F.2d 111, 115 (2d Cir. 1987)). Although Plaintiff alleges that Reynolds was aware of Plaintiff’s
complaints, (SAC ¶ 90), and that Reynolds was at least arguably involved in the disciplinary
process that led to Plaintiff’s termination (although not necessarily the ultimate decisionmaker),
(id. ¶¶ 74–75), there are no other facts from which the Court could infer that Plaintiff was

25

terminated because of his complaints. See Grimes-Jenkins v. Consol. Edison Co. of N.Y., Inc.,
No. 16-CV-4897, 2017 WL 2258374, at *11 (S.D.N.Y. May 22, 2017) (dismissing retaliation
claim because “the plaintiff does not tie the [adverse employment action] to the reporting of any
act of discrimination or harassment”), adopted by 2017 WL 2709747 (S.D.N.Y. June 22, 2017);
Harris v. NYU Langone Med. Ctr., No. 12-CV-454, 2013 WL 3487032, at *19 (S.D.N.Y. July 9,
2013) (dismissing retaliation claim because the complaint “alleges no facts to suggest that [the
plaintiff’s] activities, protected or not, motivated [the defendant’s] decision not to promote or
terminate her”), adopted as modified by 2013 WL 5425336 (S.D.N.Y. Sept. 27, 2013). At most,
Plaintiff may have intended to rely on temporal proximity between his complaints and his
termination to demonstrate a causal connection; however, Plaintiff did not specify when the
complaints were made, preventing the Court from inferring retaliation based on temporal
proximity alone. See Henry v. NYC Health & Hosp. Corp., 18 F. Supp. 3d 396, 412 (S.D.N.Y.
2014) (dismissing retaliation claim where the complaint “fails to state with even a modicum of
specificity when the relevant events occurred”); Williams v. City of New York, No. 11-CV-9679,
2012 WL 3245448, at *11 (S.D.N.Y. Aug. 8, 2012) (declining to infer causation based on
temporal proximity where the plaintiff did not specify when he engaged in the protected
conduct). Because Plaintiff “does not provide the date” he engaged in protected activity, it is
“impossible for the Court to determine the temporal proximity of the alleged retaliatory acts to
the protected conduct.” Feliciano v. City of New York, No. 14-CV-6751, 2015 WL 4393163, at
*9 (S.D.N.Y. July 15, 2015). Therefore, Plaintiff’s retaliation claims are dismissed.
2. Duty of Fair Representation
Plaintiff asserts that “WPTA failed to fulfill its obligation of duty of fair representation”
when it “tried to push Plaintiff to sign stipulations for the benefit of [his] employer,” and that

26

WPTA and NYSUT “failed in providing proper representation and processing grievances due to
prejudice, hostility, collusion[,] and conspiracy.” (SAC ¶ 117.) The Union Defendants argue that
the Court lacks subject matter jurisdiction over this claim. (Union Defs.’ Mem. 6–7.)
“It is well settled that this Court lacks subject matter jurisdiction over duty of fair
representation claims brought by employees of political subdivisions.” Gear v. Dep’t of Educ.,
No. 07-CV-11102, 2010 WL 5297850, at *3 (S.D.N.Y. Dec. 21, 2010) (citation omitted), aff’d,
472 F. App’x 67 (2d Cir. 2012); see also Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188
(2d Cir. 2009) (per curiam) (holding federal courts lack subject matter jurisdiction over duty of
fair representation claims brought by public employees, and noting that “[w]e deem it
appropriate to issue a published opinion and thereby make clear beyond peradventure that this is
the law of our Circuit”)). This conclusion “turns on the fact that both the Labor Management
Relations Act (‘LMRA’) and the National Labor Relations Act (‘NLRA’), the federal statutes
under which duty of fair representation claims arise, exclude ‘political subdivisions’ of the state
from their scope.” Gear, 2010 WL 5297850, at *3 (citations omitted). Plaintiff’s duty of fair
representation claims against WPTA and NYSUT are therefore dismissed for lack of subject
matter jurisdiction. See Majied v. New York City Dep’t of Educ., No. 16-CV-5731, 2018 WL
333519, at *4 (S.D.N.Y. Jan. 8, 2018) (holding claims for breach of duty of fair representation
against teachers union under LMRA were “without merit, as it is well established that ‘public
employees are not covered by that statute’” (quoting Ford, 579 F.3d at 188)); Pinkard v. New
York City Dep’t of Educ., No. 11-CV-5540, 2012 WL 1592520, at *9 n.7 (S.D.N.Y. May 2, 2012)
(“To the extent [the plaintiff] seeks to assert a ‘hybrid’ claim against the [teacher’s union] for
breaching its duty of fair representation under the Labor Management Relations Act (LMRA),
that claim also must fail because federal courts lack ‘subject matter jurisdiction over duty of fair

27

representation claims brought by employees of political subdivisions’” (citations omitted));
Rodriguez-Rivera v. City of New York, No. 05-CV-10897, 2007 WL 766195, at *3 (S.D.N.Y. Mar.
12, 2007) (“Several of [the] [p]laintiff’s claims are predicated on an alleged breach by the
[Teachers’ Union] of its duty of fair representation. The question of whether the [Union]
breached its duty of fair representation is beyond the subject matter jurisdiction of this [c]ourt.”).
To the extent Plaintiff seeks to assert state law claims for breach of the duty of fair
representation, see N.Y. Civ. Serv. Law § 209-a, any such claim is barred by the four-month
statute of limitations, see N.Y. C.P.L.R. § 217(2)(a) (“Any action or proceeding against an
employee organization . . . which complains that such employee organization has breached its
duty of fair representation . . . shall be commenced within four months of the date the employee
or former employee knew or should have known that the breach has occurred, or within four
months of the date the employee or former employee suffers actual harm, whichever is later.”);
see also Williams v. New York City Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (“Under New
York state law, a claim against a union for violating the duty of fair representation is subject to a
four-month statute of limitations.” (citing N.Y. C.P.L.R. § 217(2)(a))); Sales v. Clark, No. 14-CV8091, 2015 WL 7731441, at *6 n.6 (S.D.N.Y. Sept. 16, 2015) (“The state-law equivalent of the
federal fair-representation claim is limited by a still shorter, four-month, statute of limitations.”),
adopted by 2015 WL 7736548 (S.D.N.Y. Nov. 30, 2015), appeal dismissed, No. 17-1016 (2d Cir.
June 15, 2017).
The latest date attributable to any allegation in the Second Amended Complaint is April
19, 2017, when Plaintiff’s termination became effective. (SAC ¶ 81.) Therefore, his claim
accrued, at the latest, on that date. See Sanders v. New York City Dep’t of Hous. Pres. & Dev., 8
N.Y.S.3d 45, 46 (App. Div. 2015) (“The [trial] court correctly dismissed the proceeding as time-

28

barred. [The plaintiff] failed to commence this proceeding within four months of receiving
notice of her termination.”); Mateo v. Bd. of Educ. of City of New York, 728 N.Y.S.2d 71, 72
(App. Div. 2001) (holding claim challenging termination of school principal “barred by the fourmonth Statute of Limitations because this determination became final on the effective date of the
[the plaintiff]’s discharge”). Plaintiff commenced this action on April 18, 2018, almost exactly
one year after his termination. See Sales, 2017 WL 892609, at *5 (dismissing the plaintiff’s state
law claims for breach of the duty of fair representation as time-barred because “he did not file a
complaint against the [u]nion [d]efendants until nearly a year” after his claim accrued); Vill. of
Northport v. Krumholz, 93 N.Y.S.3d 419, 421 (App. Div. 2019) (dismissing counterclaim based
on wrongful termination of public employee as time-barred “because it was subject to the fourmonth statute of limitations,” and finding the claim accrued when the employee “was effectively
terminated”). Therefore, Plaintiff’s state law duty of fair representation claims are dismissed as
time-barred.
3. Violation of the Collective Bargaining Agreement
Plaintiff asserts a claim against all Defendants for violating the CBA “numerous times.”
(SAC ¶ 115.) Specifically, Plaintiff alleges that the CBA entitled him to a written explanation of
the reason for his reassignment, (id. ¶¶ 62, 64), and the right to compensation when he was
allegedly absent due to injury resulting from his employment, (id. ¶ 89).
“Section 301 of the LMRA, among other things, ‘governs actions by an employee against
an employer for breach of a collective bargaining agreement.’” Tand v. Solomon Schechter Day
Sch. of Nassau Cty. (Tand I), 324 F. Supp. 2d 379, 382 (E.D.N.Y. 2004) (quoting Dougherty v.
Am. Tel. & Tel. Co., 902 F.2d 201, 203 (2d Cir. 1990)). “Suits arising under section 301 include
‘those seeking to vindicate uniquely personal rights of employees such as wages, hours, overtime

29

pay, and wrongful discharge.’” Id. (some quotation marks omitted) (quoting Hines v. Anchor
Motor Freight, 424 U.S. 554, 562 (1976)). In a “pure § 301 action,” the six-year statute of
limitations for breach of contract actions applies. Id. (citing O’Hare v. General Marine
Transport Corp., 740 F.2d 160, 167 (2d Cir. 1984)). However, “[a] hybrid action is one . . .
which contains allegations against both the employer and the union.” Tand v. Solomon Schechter
Day Sch. of Nassau Cty. (Tand II), 378 F. Supp. 2d 120, 121 (E.D.N.Y. 2005) (citing DelCostello
v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 164 (1983)). “Such claims have two elements:
‘(1) that the employer breached a collective bargaining agreement and (2) that the union
breached its duty of fair representation in redressing [a] grievance against the employer.’”
Perkins v. 199 SEIU United Healthcare Workers E., 73 F. Supp. 3d 278, 288 (S.D.N.Y. 2014)
(quoting White v. White Rose Food, 128 F.3d 110, 113 (2d Cir. 1997)). Because Plaintiff alleges
that WPTA and NYSUT’s “wrongdoing prevented [him] from filing a formal grievance pursuant
to the CBA,” in addition to alleging that Defendants violated the CBA, “this action is most
properly characterized as a hybrid action.” Tand II, 378 F. Supp. 2d at 121. (See SAC ¶ 117.)
“[I]t is now well-settled in the Second Circuit that, since political subdivisions of the States are
not considered to be ‘employers’ under either the LMRA or the NLRA, the federal courts lack
subject matter jurisdiction over hybrid breach of collective bargaining agreement/duty of fair
representation claims brought by their employees.” Richardson v. City of Niagara Falls, No. 09CV-824, 2012 WL 75771, at *7 (W.D.N.Y. Jan. 10, 2012) (citing Ford, 579 F.3d at 188); see also
Cunningham v. Local 30, Int’l Union of Operating Engineers, 234 F. Supp. 2d 383, 395
(S.D.N.Y. 2002) (“Courts have held that they lack subject matter jurisdiction over hybrid claims
by public employees because a public employer is not an ‘employer’ within the meaning of the
LMRA.”).

30

However, even if the Court had subject matter jurisdiction, the claim is time-barred.
Because Plaintiff brings a hybrid claim, a six-month statute of limitations applies. See McLeod v.
Verizon New York, Inc., 995 F. Supp. 2d 134, 142 (E.D.N.Y. 2014) (“[T]he appropriate statute of
limitations for ‘hybrid’ actions, i.e., cases involving both claims against the employer under
Section 301 and claims against the union for breach of the duty of fair representation, is six
months.” (ultimately citing DelCostello, 462 U.S. at 163–71)). “The six-month clock begins to
run from ‘the time when the union member knew or reasonably should have known that a breach
of the duty of fair representation had occurred.’” McLeod, 995 F. Supp. 2d at 142 (ultimately
quoting Kavowras v. N.Y. Times Co., 328 F.3d 50, 55 (2d Cir. 2003)).
As discussed, the latest date attributable to any allegation in the Second Amended
Complaint is April 19, 2017, when Plaintiff’s termination became effective. Because Plaintiff
did not initiate this action until April 18, 2018, almost one year later, his claim for violation of
the CBA is time-barred. See Rosario v. Local 1106 Transp. Works of Am., 29 F. Supp. 3d 153,
161 (E.D.N.Y. 2014) (“[T]his Court dismisses with prejudice [the] [p]laintiff’s Hybrid § 301
LMRA claim against both [the employer] and [the union] based on the applicable six-month
statute of limitations.”); McLeod, 995 F. Supp. 2d at 143 (“[S]ince the [plaintiff] commenced this
action on March 10, 2013, more than one year after [his claim accrued], his hybrid claim is timebarred and must be dismissed with prejudice.”). Therefore, this claim is dismissed.
4. Defamation
Plaintiff asserts that Defendants “made false allegations against Plaintiff, defamed his
character, [and] harassed Plaintiff” in violation of anti-defamation laws. (SAC ¶ 119.)
Specifically, Plaintiff alleges that Dougherty “caused defamation to Plaintiff’s character” when
he made fun of him “numerous times,” including calling him a “hotel waiter based on his facial

31

features, race, skin color[,] and national origin.” (Id. ¶ 35.) He also alleges that Dougherty
“defamed Plaintiff’s character” when he made “false allegations” against him in meetings with
Doty and some of his students, although he nowhere explains what the “false allegations” were.
(Id. ¶ 32.) Plaintiff next alleges that Hirsch “defamed Plaintiff’s character” in meetings with
students, but does not explain how. (Id. ¶ 37.) Finally, Plaintiff alleges that Broderick and
Hughes “defamed” his character by “parad[ing]” him through the hallways escorted by a police
officer when he was removed from his classroom. (Id. ¶ 70.)
A plaintiff must plead four elements to state a defamation claim: “(1) a false and
defamatory statement concerning the plaintiff; (2) publication by the defendant of such a
statement to a third party; (3) fault on the part of the defendant; and (4) injury to the plaintiff.”
Tucker v. Wyckoff Heights Med. Ctr., 52 F. Supp. 3d 583, 597 (S.D.N.Y. 2014). The statute of
limitations in New York for defamation is one year from the date of the publication of the
statement. N.Y. C.P.L.R. § 215(3). Construing the allegations in the Second Amended
Complaint liberally, the latest date on which any arguably defamatory statement was published to
a third party was December 22, 2016, when Plaintiff was “paraded” through the hallways of
WPHS, accompanied by a police officer, in front of students and other school staff. (SAC ¶ 69.) 4
The Second Amended Complaint includes no subsequent allegations of statements, defamatory
or otherwise, published to any third party. Because Plaintiff did not initiate this Action until
April 18, 2018, his defamation claims are time-barred. See Cinevert v. Varsity Bus Co., No. 12CV-1223, 2014 WL 4699674, at *4 (E.D.N.Y. Sept. 22, 2014) (dismissing defamation claim as

4

Plaintiff provides no dates for his other defamation allegations. Furthermore, Plaintiff’s
allegation that Dougherty insulted him fails to state a defamation claim as there is no allegation
the insults were published to a third party, and none of Plaintiff’s other allegations explains the
purported defamatory statements with sufficient specificity to state a claim.
32

time barred where, “construing his complaint liberally, the latest alleged . . . action to which [the
plaintiff’s] defamation claim could conceivably apply was on October 19, 2010,” and the
plaintiff “did not file his complaint in state court until more than fifteen months later”); Biomed
Pharm., Inc. v. Oxford Health Plans (N.Y.), Inc., 775 F. Supp. 2d 730, 738 (S.D.N.Y. 2011)
(dismissing defamation claim as time-barred where the plaintiff “identifie[d] only one date . . .
on which [the defendant] allegedly made defamatory statements, a date more than one year prior
to the commencement of this action” (citation omitted)).
To the extent Plaintiff seeks to establish a defamation claim based on his termination
date, which would fall within the statute of limitations, he has not pled a defamatory statement
published to a third party relating to his termination with sufficient specificity. “While a
complaint for defamation need not be absolutely specific with regard to the statements at issue, it
must give a defendant sufficient notice of the communications complained of to enable it to
defend itself.” Biomed Pharm., 775 F. Supp. 2d at 738 (citation, alterations and quotation marks
omitted). “Specifically, a pleading is only sufficient if it adequately identifies the purported
communication and provides an indication of who made the communication, when it was made,
and to whom it was communicated.” Id. at 739 (citation and quotation marks omitted). Because
Plaintiff failed to specify any defamatory communication made to a third party in connection
with his effective termination date, Plaintiff cannot rely on that date to bring his defamation
claims within the statute of limitations. See Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253,
271 (2d Cir. 1999) (“While plaintiffs are not required to plead defamation in haec verba, [the
plaintiff’s] unsupported claim that [a co-worker] said ‘something bad’ about him to a client failed
to afford [the defendant company] sufficient notice of the communications complained of to
enable it to defend itself.” (citation, alterations, italics, and some quotation marks omitted));

33

Camp Summit of Summitville, Inc. v. Visinski, No. 06-CV-4994, 2007 WL 1152894, at *12
(S.D.N.Y. Apr. 16, 2007) (dismissing defamation claim where the plaintiff “neither alleges who
at [the defendant company] made the defamatory remarks, nor to whom the comments were
made”). For these reasons, Plaintiff’s defamation claims are dismissed.
5. 42 U.S.C. § 1985
“The elements of a claim under § 1985(3) are: (1) a conspiracy; (2) for the purpose of
depriving, either directly or indirectly, any person or class of persons of equal protection of the
laws, . . . ; (3) an act in furtherance of the conspiracy; (4) whereby a person is . . . deprived of
any right of a citizen of the United States.” Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir.
1999) (citation and quotation marks omitted).
Plaintiff’s § 1985 claims against the three student Defendants have already been
dismissed. (Dkt. No. 18.) Plaintiff asserts one other claim under § 1985, namely that
Defendants “intentionally conspired and colluded against Plaintiff and created hostile work
environment in the terms, conditions and privileges of employment in violation of 42 U.S.C.
§ 1985.” (SAC ¶ 99.) To satisfy the first element of his claim, Plaintiff must allege “a meeting
of the minds, such that . . . [D]efendants entered into an agreement, express or tacit, to achieve
the unlawful end.” Williams v. Long Beach Mortg. Co., No. 15-CV-5952, 2016 WL 5720810, at
*7 (S.D.N.Y. Sept. 30, 2016) (citation and quotation marks omitted), aff’d, 709 F. App’x 92 (2d
Cir. 2018). The Second Amended Complaint is devoid of allegations that the remaining
Defendants conspired with each other to create a hostile work environment. Plaintiff alleges a
number of isolated incidents of discriminatory or otherwise hostile conduct, and then
conclusorily asserts that such incidents are evidence of a conspiracy. (See, e.g., SAC ¶ 36
(alleging that Dougherty told Plaintiff that Friedman took his laboratory equipment and was also

34

the person who later informed Plaintiff he was being terminated, “which leads to a reasonable
conclusion that Akiva Friedman was part of the conspiracy against Plaintiff and knew
beforehand the administration’s decision”), ¶ 37 (alleging that Hirsch met with students to
discuss Plaintiff, and thereby “conspired” with the students and others to “defame[] Plaintiff’s
character”), ¶ 38 (alleging that students and administrators “had numerous meetings” where they
“reached meeting of the minds and made false allegations” against Plaintiff), ¶ 52 (alleging that
two students arrived late to his class and began sending text messages on their cell phones,
“which leads to reasonable conclusion of preplanning and conspiracy”).) These conclusory
allegations of a conspiracy against Plaintiff, largely involving Defendants who have already been
dismissed from this Action, are insufficient to state a claim under § 1985. See Ciambriello v.
County of Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (“[C]omplaints containing only conclusory,
vague, or general allegations that the defendants have engaged in a conspiracy to deprive the
plaintiff of his constitutional rights are properly dismissed.” (citation and quotation marks
omitted); Fernandes v. Moran, No. 17-CV-03430, 2018 WL 2103206, at *11 (E.D.N.Y. May 7,
2018) (dismissing § 1985(3) claim because the plaintiff’s “conclusory allegations of a
conspiracy” were insufficient); Williams, 2016 WL 5720810, at *7 (“Claims of conspiracy that
are vague and provide no basis in fact must be dismissed.” (alteration and quotation marks
omitted)); see also Kalderon v. Finkelstein, 495 F. App’x 103, 108 (2d Cir. 2012) (noting that a
plaintiff must plead “some factual basis supporting a meeting of the minds, such that [the]
defendants entered into an agreement, express or tacit, to achieve the unlawful end” (citation and
quotation marks omitted)). Plaintiff’s remaining § 1985 claim is therefore dismissed.

35

6. 42 U.S.C. § 1983
Section § 1983 provides a mechanism “for redress for the deprivation of rights.” Corley
v. City of New York, No. 14-CV-3202, 2017 WL 4357662, at *5 (S.D.N.Y. Sept. 28, 2017)
(quoting Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999)); see also Pagan v. New York State
Div. of Parole, No. 98-CV-5840, 2001 WL 262611, at *8 (S.D.N.Y. Mar. 15, 2001) (holding that
the plaintiff’s “due process claims . . . can only be brought under [§ 1983]” because the
defendant was acting under color of state law). Through § 1983, Plaintiff brings claims under
the First and Fourteenth Amendments.
a. Union Defendants
The Union Defendants argue that Plaintiff cannot assert constitutional claims against
them because he has failed to plead that they are state actors. The Court agrees.
“Section 1983 provides a cause of action against any person who deprives an individual
of federally guaranteed rights ‘under color’ of state law.” Filarsky v. Delia, 566 U.S. 377, 383
(2012). Thus, to state a claim pursuant to § 1983, a plaintiff must allege (1) that the challenged
conduct was “committed by a person acting under color of state law,” and (2) that such conduct
“deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws
of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quotation marks
omitted).
“Labor unions . . . generally are not state actors.” Ciambriello, 292 F.3d at 323; see also
Dimps v. Dist. Council 37, AFSCME, No. 01-CV-1735, 2002 WL 206992, at *3 (S.D.N.Y. Feb. 8,
2002) (same). More specifically, courts in the Second Circuit have repeatedly held that teachers’
unions are not state actors. See Guttilla v. City of New York, No. 14-CV-156, 2015 WL 437405,
at *5 (S.D.N.Y. Feb. 3, 2015) (dismissing § 1983 claim against union defendants because “[t]he

36

complaint does not allege that [the union defendants], as employees of UFT or NYSUT, are state
employees,” and “labor unions generally are not state actors” (citation, alterations, and quotation
marks omitted)); Boyle v. DeWolf, No. 13-CV-104, 2013 WL 1751145, at *5 (N.D.N.Y. Feb. 4,
2013) (“To the extent that plaintiff is attempting to name the NYSUT itself, the union is not a
state actor, regardless of whether the union represents public employees.” (citing Ciambriello,
292 F.3d at 324)), adopted by 2013 WL 1749933 (N.D.N.Y. Apr. 23, 2013), appeal dismissed,
No. 13-1945 (2d Cir. July 29, 2013); Malcolm v. Honeoye Falls-Lima Educ. Ass’n, 678 F. Supp.
2d 100, 107 (W.D.N.Y. 2010) (dismissing § 1983 claims against NYSUT and a local affiliate
because they were not state actors); see also Jacobs v. Mostow, 271 F. App’x 85, 88 (2d Cir.
2008) (affirming dismissal of § 1983 claims against NYSUT because the “complaint fails to
identify any state actor”).
Although Plaintiff makes several allegations that Defendants conspired with each other,
the Court has already held that those allegations are too conclusory to establish a conspiracy. See
Ciambriello, 292 F.3d at 324 (“A merely conclusory allegation that a private entity acted in
concert with a state actor does not suffice to state a § 1983 claim against the private entity.”);
Guttilla, 2015 WL 437405, at *6 (dismissing § 1983 claim against union defendants where “the
complaint makes only conclusory allegations that these defendants conspired with a state actor”);
Dimps, 2002 WL 206992, at *3 (dismissing § 1983 claim against union defendant because the
plaintiff failed to “allege that [the union] defendant conspired with a state official”); McGovern v.
Local 456, Int’l Bhd. of Teamsters, Chauffeurs & Warehousemen & Helpers of Am., 107 F. Supp.
2d 311, 317 (S.D.N.Y. 2000) (granting summary judgment on § 1983 claim against a labor union
where the complaint “fail[ed] to allege the existence of a conspiracy between the County and

37

defendant Union”). Therefore, Plaintiff’s constitutional claims brought against the Union
Defendants pursuant to 42 U.S.C. § 1983 are dismissed.
b. White Plains Defendants
With respect to the White Plains Defendants, Plaintiff alleges that his employment was
terminated “without a hearing in violation of [the] Due Process Clause of the Fourteenth
Amendment of the U.S. Constitution.” (SAC ¶ 111.) He also alleges that WPCSD’s bar on
contacting any WPCSD administrator or employee, other than those working at the Central
Office, violates his rights under the First Amendment. (Id. ¶ 113.)
i. Fourteenth Amendment
“In New York, a tenured public school teacher is entitled to a hearing prior to
termination.” Gipson v. Hempstead Union Free Sch. Dist., No. 09-CV-5466, 2010 WL 4942650,
at *4 (E.D.N.Y. Nov. 18, 2010); see also Vassilev v. City of New York, No. 13-CV-5385, 2014 WL
3928783, at *3 (S.D.N.Y. Aug. 12, 2014) (“If [the [p]laintiff was in fact a tenured employee, he
was entitled to a pre-termination hearing and other process prior to termination.”). However,
“[i]t is well settled under New York law that the services of a probationary teacher may be
discontinued at any time during the probationary period,” and probationary teachers therefore
“ha[ve] no property interest in [their] employment.” Federico v. Bd. of Educ. of Pub. Sch. of
Tarrytowns, 955 F. Supp. 194, 199 n.1 (S.D.N.Y. 1997); Segal v. City of New York, 368 F. Supp.
2d 360, 362 n.1 (S.D.N.Y. 2005) (noting that the plaintiff “ha[d] no due process claim based on
any property interest, since she was a probationary employee with no constitutionally protected
property interest in her employment”), aff’d, 459 F.3d 207 (2d Cir. 2006).
Plaintiff alleges that he was hired “as a leave replacement chemistry teacher against a
permanent vacancy opened due to the death of one of WPCSD’s chemistry teachers.” (SAC

38

¶ 23.) He then alleges that after the decision was made to terminate his employment, but before
the termination became effective, the WPCSD Superintendent “recommended to the Board to
retroactively convert Plaintiff’s leave-replacement appointment to a probationary appointment
and the Board approved it . . . .” (Id. ¶ 78.) The White Plains Defendants argue that “Plaintiff
does not contend, nor can he, that as a leave replacement teacher he was granted tenure,” and
therefore he had no property interest in continued employment. (White Plains Defs.’ Mem. 17
n.9.)
“Due process does not, in all cases, require a hearing before the state interferes with a
protected interest, so long as ‘some form of hearing is [provided] before an individual is finally
deprived of [the] property interest.’” Broomer v. Huntington Union Free Sch. Dist., No. 12-CV574, 2013 WL 4094924, at *4 (E.D.N.Y. Aug. 13, 2013) (quoting Nnebe v. Daus, 644 F.3d 147,
158 (2d Cir. 2011)), aff’d, 566 F. App’x 91 (2d Cir. 2014). Nevertheless, “[t]he Supreme Court
instructs that if a property interest is extinguished pursuant to ‘established state procedure’ that
requires a pre-deprivation constitutional safeguard, that a post-deprivation remedy such as a state
Article 78 proceeding does not satisfy due process.” Storman v. Klein, No. 09-CV-338, 2009 WL
1035964, at *18 (S.D.N.Y. Apr. 20, 2009) (ultimately quoting Logan v. Zimmerman Brush Co.,
455 U.S. 422, 435–36 (1983)); see also Romano v. Harrington, 664 F. Supp. 675, 682 (E.D.N.Y.
1987) (“If [the] plaintiff’s . . . job is probationary, [the] plaintiff’s post-deprivation hearing was
adequate. However, if [the] plaintiff’s job . . . constitutes a property interest protected by the due
process clause, plaintiff may have been entitled to a pre-termination proceeding, including the
right to retain counsel, prior to his discharge.” (citing Goetz v. Windsor Cent. Sch. Dist., 698 F.2d
606, 609 (2d Cir. 1983), and Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 570–71 n.8
(1972))).

39

Here, the Court cannot definitively determine from Plaintiff’s allegations whether he had
a property interest in his employment such that he was entitled to a pre-termination hearing.
However, Plaintiff’s allegation that his status was retroactively changed before he was
terminated suggests that as a leave replacement teacher, he would have been entitled to different
protections than as a probationary teacher. Although the White Plains Defendants assert that
neither status entitles Plaintiff to a pre-deprivation hearing, (White Plains Defs.’ Mem. 17 n.10),
“any analysis regarding whether and when [D]efendants owed [Plaintiff] a hearing prior to
depriving him of his alleged property interest . . . turns on facts not before this Court on this
[M]otion.” Storman, 2009 WL 1035964, at *18. Because the Court cannot determine from the
pleadings that Plaintiff was not entitled to a pre-deprivation hearing as a matter of law, and in
light of Plaintiff’s pro se status, White Plains Defendants’ Motion To Dismiss Plaintiff’s
Procedural Due Process claim is denied. 5
ii. First Amendment
Plaintiff asserts that “WPSCD’s continued ban . . . barring Plaintiff from contacting any
WPCSD[] administrator or employee other than the individuals working at the Education House
(Central Office) is a violation of Plaintiff’s rights guaranteed in the First Amendment to the U.S.
Constitution.” (SAC ¶ 113.) Plaintiff also asserts that because WPTA’s office is on WPCSD
property and he was barred from entering that property, he was effectively barred from going to

5

Although Plaintiff’s Procedural Due Process claim survives, if Defendants ultimately
prove that Plaintiff’s termination was justified, i.e., that they would have made the same
determination even if Plaintiff had received a pre-deprivation hearing, Plaintiff may be entitled
only to nominal damages. See Carey v. Piphus, 435 U.S. 247, 267 (1978) (explaining that if a
court determines that an adverse action that violated procedural was “justified,” the plaintiff is
“entitled to recover nominal damages not to exceed one dollar”); Rentas v. Ruffin, 816 F.3d 214,
223 (2d Cir. 2016) (“When a defendant has deprived the plaintiff of liberty, but the adverse
action would have been taken even in the absence of the wrongful conduct, the plaintiff is
entitled only to nominal damages.” (citation, alterations, and quotation marks omitted)).
40

the WPTA office. (Id. ¶ 86.) 6 The Court construes Plaintiff as asserting a violation of his right to
freedom of association, an unlawful prior restraint on speech, and an unconstitutional ban from
public property.
“[A] public employee bringing a First Amendment freedom of association claim must
persuade a court that the associational conduct at issue touches on a matter of public concern.”
Cobb v. Pozzi, 363 F.3d 89, 102–03 (2d Cir. 2004) (citations omitted); see also Rutherford v.
Katonah-Lewisboro Sch. Dist., 670 F. Supp. 2d 230, 246 (S.D.N.Y. 2009) (holding that “in order
to state a viable First Amendment free association claim, Plaintiff must allege that the
associational activity at issue touches upon a matter of public concern”). The same is true for
claims based on prior restraints of speech. See Rutherford, 670 F. Supp. 2d at 244 (“It is wellestablished that a public employee who brings a First Amendment claim alleging a prior restraint
on her freedom of speech must show that the speech touches on a matter of public concern.”
(citing United States v. Nat’l Treasury Employees Union (NTEU), 513 U.S. 454, 465–66 (1995)).
Here, Plaintiff has included no allegations about what specific communications were precluded
by his inability to communicate with employees of the school district other than the Central
Office. Indeed, Plaintiff alleges that he was not banned from communicating with the school
district’s Central Office or with union representatives, thereby permitting him to continue to
discuss his termination and any grievances he might have with administrators and WPTA.
Because Plaintiff does not allege anything about the barred communication, other than the fact
that it prevented him from speaking with WPCSD employees through anything other than the
Central Office, Plaintiff’s freedom of speech claim fails. See Spring v. County of Monroe, 103 F.

6

The Second Amended Complaint indicates that Plaintiff was not barred from
communicating with his union representatives. (SAC ¶ 74.)
41

Supp. 3d 361, 365 (W.D.N.Y. 2015) (granting motion to dismiss First Amendment claim because
the plaintiff “failed to plausibly allege that it related to a matter of public concern”); Dorcely v.
Wyandanch Union Free Sch. Dist., 665 F. Supp. 2d 178, 204 (E.D.N.Y. 2009) (dismissing First
Amendment claim where the plaintiff was barred from speaking to school district employees
during administrative leave because “there is no evidence that [the plaintiff] wished to speak to
his colleagues, his counsel or a union representative on a matter of public concern”); see also
Wetzel v. Town of Orangetown, 308 F. App’x 474, 477 (2d Cir. 2009) (holding the plaintiff failed
to state a claim where she was “prohibited from addressing . . . [t]own officials on the matter of
the disciplinary proceedings against her,” because “those proceedings are a matter of personal
interest, not a matter of public concern”).
“[T]o the extent that Plaintiff is claiming a violation of his right to freedom of
association,” based on Defendants preventing him from socializing with former co-workers, “his
claim is barred[,] as there is no generalized right of ‘social association.’” Dorcely, 665 F. Supp.
2d at 204 (citing City of Dallas v. Stanglin, 490 U.S. 19, 23 (1989)); see also Gallagher v. Bd. of
Educ. of E. Hampton Union Free Sch. Dist., No. 16-CV-473, 2017 WL 8813134, at *7 (E.D.N.Y.
Dec. 21, 2017) (“[T]he Constitution does not recognize a generalized right of social association,
and courts in the Second Circuit have not accepted intimate association claims based on
friendships, however close.” (citation and quotation marks omitted)), adopted by 2018 WL
798882 (E.D.N.Y. Feb. 9, 2018).
To the extent Plaintiff’s First Amendment claim is predicated on being banned from
WPCSD property, it still fails. “Schools possess the right to exercise ultimate authority for
access to students, school buildings and school property.” Gallagher, 2017 WL 8813134, at *7;
see also Jones v. Bay Shore Union Free Sch. Dist., 170 F. Supp. 3d 420, 433 (E.D.N.Y. 2016)

42

(same), aff’d, 666 F. App’x 92 (2d Cir. 2016). Plaintiff “has not cited, nor has the court found,
any case law supporting the proposition that the First Amendment guarantees access to school
grounds.” Kadri v. Groton Bd. of Educ., No. 13-CV-1165, 2014 WL 1612492, at *5 (D. Conn.
Apr. 22, 2014); see also Roth v. Farmingdale Pub. Sch. Dist., No. 14-CV-6668, 2016 WL
767986, at *10 (E.D.N.Y. Feb. 26, 2016) (“[U]nder New York law, a plaintiff does not have a
constitutionally protected liberty interest in accessing school property.”). Plaintiff makes no
“specific allegations relating to unconstitutional time, place, and manner restrictions,” such as
restrictions based on his beliefs or viewpoints, and does not allege that his ban from school
property impacts his “ability to speak, assemble, or associate in alternative fora.” Gallagher,
2017 WL 8813134, at *7. Plaintiff therefore fails to state a First Amendment claim based on
being barred from entering WCPSD property. See id. (granting motion to dismiss First
Amendment claim based on “no trespass” order barring the plaintiff from entering school
property during suspension because it “is content-neutral as it targets employees based on their
current employment status, and not their beliefs or views”); Kadri, 2014 WL 1612492, at *5
(dismissing First Amendment claim where the plaintiff “fails to plausibly allege that his ban from
school property was not reasonable or viewpoint neutral”); Nowacki v. Town of New Canaan, No.
12-CV-1296, 2013 WL 785355, at *5–6 (D. Conn. Mar. 1, 2013) (noting that “[a] school is
generally considered a non-public forum” and dismissing First Amendment claim based on
restriction of access to school property because, inter alia, “there is no indication or allegation
that any restriction on his ability to speak to school officials on school property was intended to
restrict the content of his speech rather than to preserve order and tranquility on school
property”). Plaintiff’s First Amendment claim is therefore dismissed.

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III. Conclusion
For the foregoing reasons, the Union Defendants' Motion is granted, and the White Plains
Defendants' Motion is granted in part and denied in part. All of Plaintiff's claims except for his
procedural due process claim based on his termination without a prior hearing are dismissed.
However, because this is the first adjudication of Plaintiff's claims on the merits, the dismissal is
without prejudice. See Terry v. Inc. Vil/. of Patchogue, 826 F.3d 631, 633 (2d Cir. 2016)
(explaining that "district judges should, as a general matter, liberally permit pro se litigants to
amend their pleadings" unless "amendment would be futile"). Should Plaintiff choose to file a
third amended complaint, he must do so within 30 days of this Opinion, addressing the
deficiencies identified herein. The third amended complaint will replace, not supplement, the
Second Amended Complaint currently before the Court. It therefore must contain all of the
claims and factual allegations Plaintiff wishes the Court to consider. The Court will not consider
factual allegations raised in supplemental declarations, affidavits, or letters. If Plaintiff fails to
abide by the 30-day deadline, this action will proceed solely on Plaintiff's procedural due process
claim.
The Clerk of Court is respectfully requested to terminate the pending Motions, (see Dkt.
Nos. 42, 43), and mail a copy of this Opinion to Plaintiff.
SO ORDERED.
Dated:

July /£ , 2019
White Plains, New York
United States District Judge

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