Wingfield v. Rochester City School For the Deaf

Filing 18

ORDER granting in part and denying in part 7 Motion to Dismiss; denying 14 Motion to Strike ; denying 14 Motion. Signed by Hon. Michael A. Telesca on September 30, 2013. (MES)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
BARBARA WINGFIELD
Plaintiff,
v.

13-CV-6321
DECISION AND ORDER

ROCHESTER SCHOOL FOR THE DEAF
Defendant,
________________________________________
INTRODUCTION
Plaintiff,

Barbara

Wingfield

(“Plaintiff”),

brings

this

lawsuit pro se pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), alleging that her
former employer, Rochester School for the Deaf (“Defendant” or
“RSD”)1,

discriminated

against

her

on

the

basis

of

her

sex.

Defendant moves to dismiss Plaintiff’s complaint contending that
she has not stated a plausible claim for relief. Plaintiff filed an
untimely opposition to the instant motion, however, in view of the
Plaintiff’s pro se status, the Court will consider Plaintiff’s
opposition and the Defendant’s reply.2

For the reasons discussed

herein, the Court grants in part and denies in part Defendant’s
motion to dismiss Plaintiff’s complaint.

1

In a separate motion, Plaintiff seeks to add Howard Mowl as a defendant. However,
because individuals may not be sued under Title VII, Plaintiff’s request is denied. See Spiegel v.
Schulmann, 604 F.3d 72, 79 (2d Cir. 2010).
2

Because the Court has determined that it will consider Plaintiff’s opposition, Plaintiff’s
cross-motion to strike Defendant’s arguments regarding the timeliness of her opposition is denied
as moot.
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BACKGROUND
The following facts are taken from the Plaintiff’s complaint.3
(Docket No. 1.) Plaintiff was employed by RSD as an ASL/English
Bilingual Specialist from 1992 until she resigned on April 16,
2012.

Plaintiff is deaf and her children are deaf and attend RSD.

Plaintiff’s ex-husband is deaf and is employed by RSD as the
Director of Business Operations and, during the relevant time
period, the head of security.
Order of Protection
In early September 2011, Plaintiff had an altercation with her
ex-husband that resulted in a temporary order of protection being
issued in her favor on September 6, 2011 by the Monroe County
Family Court. The order provided that her ex-husband remain at
least 25 feet away from the Plaintiff on the RSD campus.

To comply

with the order, the Superintendent of RSD, Harold Mowl (“Mowl”),
issued a letter to Plaintiff “severely restricting [her] presence
and movement” at RSD.

She alleges that Mowl did not discuss the

3

In addition to the factual allegations in the complaint, the Court may also consider “‘any
written instrument attached to it as an exhibit or any statements or documents incorporated in it
by reference,’” as well as any document not attached or incorporated by reference if “the
complaint ‘relies heavily upon its terms and effect,’ [rendering] the document ‘integral’ to the
complaint.” See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002) (internal
citations omitted) (quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995)). Here, the Court will consider the complaint, an order of protection issued in
Plaintiff’s favor by Monroe County Family Court, and the Last Chance Agreement issued to
Plaintiff by RSD, which were submitted by the Defendant, but which are incorporated into the
complaint by reference. (Docket No. 7.)

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restrictions with her before issuing the letter and that her exhusband was not similarly restricted.
Later, on September 24, while attempting to attend a sports
event for her children at RSD, Plaintiff and a security guard had
an altercation which resulted in Plaintiff feeling threatened. She
alleges that the security guard “misunderstood” Mowl’s instructions
and he “used intimidating tactics” to force her to leave campus.
Plaintiff contacted her supervisor and Mowl and expressed her
belief that she was the victim of discrimination. She alleges that
“Mowl tried to stop me from talking with others about alleged
discrimination”

in

an

e-mail

communication

she

had

with

him

following this altercation.
On September 29, 2011, the order of protection was modified to
remove the restriction that Plaintiff’s ex-husband remain 25 feet
away from her on the RSD campus.

Rather, he was directed to

refrain from offensive conduct towards Plaintiff while on campus.
Plaintiff alleges that she was “subjected to a hostile work
environment, harassed, and treated unfairly throughout the school
year.” She also alleges that she was “denied training opportunities
and resources” for two months during the Fall of 2011.
Last Chance Agreement
Later, in April 2012, Plaintiff was presented with a “Last
Chance Agreement”, which outlined certain out-of-school behaviors
of the Plaintiff including, inter alia, “inappropriate Facebook

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postings” and an instance where RSD believed Plaintiff lied about
being sick. The Last Chance Agreement required that Plaintiff,
inter alia, refrain from these alleged behaviors, make public and
private apologies for certain behaviors, remove Facebook posts,
attend counseling provided by the school, and that she agree to
waive

her

right

to

file

a

lawsuit

based

on

RSD’s

behavior,

including any potential lawsuit under Title VII. The Last Chance
Agreement states: “Teacher acknowledges that she understands the
terms of this final Last Chance Agreement and that she agrees to
waive all rights she may have pursuant to any other provision of
constitution, statute, regulation, rule, contract or from any other
source,

in

connection

with

any

action

taken

by

the

School....Teacher further agrees to irrevocably and unconditionally
release and discharge the School....from any an all charges,
complaints, and any other causes of action...including but not
limited to any and all claims...arising out of Title VII...” If
Plaintiff refused to sign the Last Chance Agreement, she would be
fired.

Plaintiff did not sign the Last Chance Agreement and

instead resigned from her position at RSD. Plaintiff claims that
other male employees who violated school policy were not subjected
to similar disciplinary actions.
DISCUSSION
To survive a Rule 12(b)(6) motion to dismiss, a complaint must
plead “enough facts to state a claim to relief that is plausible on

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its face.” See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d
Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In considering a Rule 12(b)(6) motion to dismiss, the
Court “‘must accept as true all allegations in the complaint and
draw all reasonable inferences in favor of the non-moving party.’”
See Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517
F.3d 104, 115 (2d Cir.2008) (quoting Gorman v. Consol. Edison
Corp., 488 F.3d 586, 591-92 (2d Cir.2007)).

Further, the Court

must construe a pro se complaint liberally. See Erickson v. Pardus,
551 U.S. 89 (2007). However, the court may disregard a plaintiff’s
“legal conclusions, deductions or opinions couched as factual
allegations.” See, e.g., In re NYSE Specialists Sec. Litig., 503
F.3d 89, 95 (2d Cir.2007) (citation omitted). The court is also not
required to credit conclusory statements unsupported by factual
allegations. See, e.g., Otor, S.A. v. Credit Lyonnais, S.A., 2006
WL 2613775, at *2 (S.D.N.Y.2006); see also Davey v. Jones, 2007 WL
1378428, at *2 (S.D.N.Y.2007) (citation omitted).
Reading the Plaintiff’s complaint liberally, she alleges that
she was subjected to discrimination and a hostile work environment
on the basis of her sex and that she was also subjected to
retaliation for complaining of discrimination. Plaintiff bases her
discrimination and hostile work environment claims the Defendant’s
conduct following the issuance of the order of protection against
her ex-husband in September 2011. She alleges that she was treated

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differently than her ex-husband in the execution of the order and
that a security guard at the school intimidated her and forced her
to leave her child’s sporting event in an attempt to enforce the
order.

She alleges that her ex-husband was not subjected to the

same restrictions at the school during the time period that the
order was effective.
The

Court

also

construes

her

complaint

to

allege

discrimination and retaliation in connection with the Last Chance
Agreement issued in April 2012. Plaintiff alleges that other
employees were not subjected to the same disciplinary actions for
violations

of

school

policy

and

that

she

was

the

victim

of

retaliation for her complaints of discrimination following the
issuance of the order of protection.
A. Discrimination
To state a prima facie case of sex discrimination under Title
VII,

a

plaintiff

must

allege

that:

“(1)

she

was

within

the

protected class; (2) she was qualified for her position; (3) she
was subject to an adverse employment action; and (4) the adverse
action occurred under circumstances giving rise to an inference of
unlawful discrimination.” See Leibowitz v. Cornell Univ., 584 F.3d
487, 498 (2d Cir.2009). “[A] complaint need not contain specific
facts establishing a prima facie case of employment discrimination
to overcome a Rule 12(b)(6) motion, [but] the claim must be
facially plausible, and must give fair notice to the defendants of

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the basis for the claim.” Fowler v. Scores Holding Co., Inc., 677
F.Supp.2d 673, 679 (S.D.N.Y. 2009)(citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 547 (2007)(“a complaint in an employment
discrimination

lawsuit

[need]

not

contain

specific

facts

establishing a prima facie case of discrimination.”)).
Order of Protection
The Court finds that Plaintiff has not plausibly alleged that
she

was

subjected

to

an

adverse

employment

action

under

circumstances giving rise to an inference of discrimination in
connection with the order of protection.

First, even liberally

construing the complaint, the Court cannot characterize the RSD’s
response to the order of protection as an adverse employment
action.

According to the complaint, the order of protection

required that Plaintiff’s ex-husband, also an employee at RSD,
remain 25 feet away from the Plaintiff while the order was in
effect.
“presence

RSD effectuated the order by restricting Plaintiff’s
and

movement

on

the

school

campus.”

An

adverse

employment action is a “materially adverse change in the terms and
conditions of employment” that “is more disruptive than a mere
inconvenience

or

an

alteration

of

job

responsibilities.”

Fairbrother v. Morrison, 412 F.3d 39, 56 (2d Cir.2005)(emphasis
added).

RSD’s effectuation of an order of protection, which

Plaintiff sought against her ex-husband, is not an action taken in
connection with Plaintiff’s employment. While the restrictions may

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have affected her at work, the RSD’s actions were the result of the
order of protection relating to a domestic dispute, they do not
represent a change in the terms and conditions of Plaintiff’s
employment. Further, the temporary restriction of her presence and
movement on the campus to comply with the order is not “more
disruptive than a mere inconvenience.” Id.

The order was lifted

within a few weeks, as were the restrictions of her movement on
campus.
Additionally, the fact that Plaintiff and her husband were
treated differently with respect to the Order does not, under these
circumstances, plausibly give rise to an inference of gender
discrimination. Plaintiff and her ex-husband worked in different
capacities at RSD and it is not plausible that they were similarly
situated in all material respects, as is required for an inference
of discrimination based on disparate treatment. See Graham v. Long
Island R.R., 230 F.3d 34, 39-40 (2d Cir. 2000).
Lastly, the alleged threatening behavior of a security guard
towards Plaintiff while she was attending a sporting event at RSD
in her capacity as a parent of a student is unrelated to her
employment at RSD. Under these circumstances, the Court finds that
the security guard’s actions towards a parent cannot be considered
an adverse employment action.

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Last Chance Agreement
With respect to the Last Chance Agreement, the Court finds
that Plaintiff has plausibly alleged a claim for discrimination.
Plaintiff alleges that “male employees at RSD who had violated the
school policies were not given similar disciplinary actions or
termination.”

Further, the Last Chance Agreement requires that

Plaintiff waive her right to bring a discrimination lawsuit based
on RSD’s actions.

The Court finds that these allegations are

sufficient to plausibly allege a claim for gender discrimination.
“The issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the
claims.” See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Accordingly,

Defendant’s

motion

to

dismiss

Plaintiff’s

discrimination claim based on RSD’s actions in response to the
order of protection is granted and Plaintiff’s complaint with
respect to those allegations is dismissed.

However, Defendant’s

motion to dismiss Plaintiff’s discrimination claim based on the
Last Chance Agreement is denied.
B. Hostile Work Environment
To state a claim of discrimination based on a hostile work
environment,

a

plaintiff

must

establish

the

existence

of

a

workplace that is “permeated with discriminatory intimidation,
ridicule and insult, that is sufficiently severe or pervasive to
alter the conditions of the victim's employment.” Torres v. Pisano,

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116 F.3d 625, 630–631 (2d. Cir.1997) (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993)). “Conduct that is merely
offensive

and

not

severe

or

pervasive

enough

to

create

an

objectively hostile or abusive work environment” will not establish
a Title VII discrimination claim. Torres, 116 F.3d at 631 (2d Cir.)
(internal quotes omitted); Gallagher v. Delaney, 139 F.3d 338, 346
(2d

Cir.1998)

environment

(“A

hostile

reasonable
or

person

abusive,

and

would
the

have

to

victim

find
must

the
have

subjectively so perceived it.”). “Evaluating a hostile environment
[claim] involves reviewing the totality of the circumstances,
including

‘the

frequency

of

the

discriminatory

conduct;

its

severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes
with an employee's work performance.’” Miller v. McHugh, 814
F.Supp.2d 299, 2011 WL 4091466, *8 (S.D.N.Y., September 14, 2011)
(quoting Harris, 510 U.S. at 23).
Plaintiff alleges that she “was subjected to a hostile work
environment, harassed, and treated unfairly throughout the school
year.”

She states that she was “denied training opportunities and

resources including not having an appropriate, safe classroom
environment for 35 elementary students for two months in the fall
of 2011.”

Even read liberally, these allegations and the school’s

conduct following the order of protection and in connection with
the Last Chance Agreement, do not constitute a workplace that is

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“permeated with discriminatory intimidation, ridicule and insult,
that is sufficiently severe or pervasive to alter the conditions of
the victim's employment.” See Harris 510 U.S. at 21. Plaintiff
alleges two or three instances in which she felt that she was
treated

unfairly

and

she

conclusively

states

that

she

“was

subjected to a hostile work environment, harassed, and treated
unfairly throughout

the

school

year.”

The Court

finds

that

Plaintiff has not plausibly alleged the requisite severe and
pervasive

conduct

environment.

which

might

constitute

a

hostile

work

Accordingly, Plaintiff’s hostile work environment

claim is dismissed.
C. Retaliation
Defendants do not specifically address whether Plaintiff’s
complaint plausibly alleges a claim for retaliation.

To establish

a prima facie retaliation claim, Plaintiff must show that: (1) she
participated in a protected activity; (2) Defendant was aware of
Plaintiff's protected activity; (3) she suffered a materially
adverse employment action; and (4) there was a causal connection
between the protected activity and the adverse action. Tepperwien
v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 fn. 6 (2d
Cir.2011).

Here,

Plaintiff

alleges

that

she

complained

of

discrimination to her supervisor and Mowl relating to RSD’s role in
enforcing the restrictions contained in the order of protection.
She alleges that “Mowl tried to stop [her] from talking with others

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about alleged discrimination” and that the Last Chance Agreement,
contains a waiver of her rights to file a discrimination lawsuit
against RSD. While not commenting on the strength of Plaintiff’s
case, the Court finds that Plaintiff has plausibly alleged a claim
for retaliation because a reasonable jury could conclude that a
waiver of her rights to file a discrimination lawsuit in a document
that she was required to sign to continue her employment after she
complained of discrimination to her employer was retaliatory.
Scheuer

v.

Rhodes,

416

U.S.

232,

236

(1974).

See

Accordingly,

Plaintiff may proceed with her claim for retaliation.
CONCLUSION
For the reasons discussed herein, the Defendant’s motion to
dismiss is granted in part and denied in part.

Plaintiff’s claim

for discrimination based on the Defendant’s actions in connection
with the order of protection and her claim for a hostile work
environment

are

dismissed.

Defendant’s

motions

to

dismiss

Plaintiff’s claims for discrimination and retaliation based on the
Last Chance Agreement are denied.

Lastly, Plaintiff’s request for

permission to file documents electronically is denied. Plaintiff is
directed to consult the Court’s Pro Se Office for assistance with
filing documents.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HON. MICHAEL A. TELESCA
United States District Judge

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Dated:

Rochester, New York
September 30, 2013

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