Malcolm v. Rochester City School District et al
Filing
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DECISION AND ORDER I find that Plaintiff has failed to exhaust her administrative remedies and failed to state a claim against any defendant with respect to her Title VII, ADEA, NYSDHR and Equal Protection claims. Accordingly, defendants' motio n to dismiss the complaint 6 is granted, and the complaint is dismissed, with prejudice. Copy of this Decision and Order sent by First Class Mail to plaintiff Bernice C. Malcolm on 7/11/2019 to her address of record. Signed by Hon. David G. Larimer on 7/11/2019. (KAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________________
BERNICE C MALCOLM,
Plaintiff,
DECISION AND ORDER1
(Malcolm II)
17-CV-6873-DGL
v.
ROCHESTER CITY SCHOOL DISTRICT, BARBARA
DEANE-WILLIAMS, Superintendent of Schools,
Individually, SANDRA SIMPSON, Chief of Specialized
Services and Former Interim Director of Specialized
Services, Individually, MARY PAULY, Executive Director
of Specialized Services, Individually, and THERESA
(“TERESA”) ROOT, Zone Director of Specialized
Services, Individually,
Defendants.
________________________________________________
INTRODUCTION: MALCOLM II
Plaintiff Bernice C. Malcolm (“plaintiff”), proceeding pro se, brings this action against
defendants Rochester City School District (“RCSD”), its superintendent, Barbara Deane-Williams
(“Deane-Williams”), Chief of Specialized Services and Former Interim Director of Specialized
Services, Sandra Simpson (“Simpson”), Executive Director of Specialized Services, Mary Pauly
(“Pauly”), and Zone Director of Specialized Services, Theresa Root (“Root”). This action was
commenced on virtually the same day as Malcolm I (17-CV-6878). The complaint is virtually
identical to Malcolm’s complaint in Malcolm I.
Plaintiff is a 61-year-old African-American woman who has been employed with the
RCSD starting in April of 2015.
1
Plaintiff was hired as a Central Office Coordinating
Two other decisions filed by the same plaintiff (17-CV-6878 and 18-CV-6450) have been filed this date.
Administrator of Special Education (“CASE”). Not long after she was hired, Plaintiff began to
have difficulties with her supervisor, Root, and made complaints to her supervisors at the RCSD.
Plaintiff alleges that Root, among other things, “sabotaged her career” by giving her a developing
performance evaluation without notifying her.
In March 2017, the RCSD, faced with budgetary concerns, conducted an audit that led
them to restructure the special education administrators. This included laying off twenty-two
CASE positions. Plaintiff was one of the affected employees. Those employees were then
placed on a preferred eligibility list for seven years, meaning they could be recalled and resume
employment if a position was open. Plaintiff was recalled from the preferred eligibility list and
rehired by the RCSD on November 20, 2017 in her same position, about a month before
commencing this lawsuit.
As mentioned in Malcom I, plaintiff then filed five charges within the New York State
Department of Human Rights (“NYSDHR”). In the first two charges against the RCSD, the
NYSDHR determined there was probable cause, and the case is pending and is still unresolved.
These two charges were dually filed in the EEOC. The third, fourth and fifth charges against
plaintiff’s union and RCSD were dismissed with the NYSDHR finding no probable cause, with
the EEOC adopting the same findings as the NYSDHR for her federal claims. Upon receipt of
her right to sue letter from the EEOC in her fourth charge, plaintiff then filed the present lawsuit,
and two other actions in this district regarding similar claims.2 The second action, filed the day
after the present lawsuit was filed, has been dismissed for various reasons, including a failure to
exhaust administrative remedies and failure to state a claim.
2
See Malcolm v. Ass’n of Supervisors and Adm’rs of Rochester, 17-CV-6878 (W.D.N.Y. 2017); Malcolm v. Rochester
City School District, 18-CV-6450 (W.D.N.Y. 2018).
2
In the present lawsuit, plaintiff alleges defendants discriminated against her with respect to
her employment in violation of the Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967 (“ADEA”), 42 U.S.C.
§ 1988; New York Human Rights Law (“NYHRL”), N.Y. Exec. Law § 290 et seq.; 42 U.S.C. §
1983; and the New York Constitution’s Equal Protection clause, N.Y. Const. Art. I, § 11.
Plaintiff also alleges a state law breach of contract claim against defendants.
In lieu of an answer, defendants moved to dismiss the complaint pursuant to Fed. R. Civ.
Proc. 12(b)(1), 12(b)(2), 12(b)(4), 12(b)(5) and 12(b)(6). Plaintiff, in her complaint and in her
reply papers, requested a stay in the proceedings, and as she did in Malcolm I, moved to amend
her complaint.
For the reasons set forth below, defendant’s motion to dismiss (Dkt. #6) is granted, and the
Complaint is dismissed. Plaintiff’s motion to amend the complaint (Dkt. #11) is denied, and
plaintiff’s request to stay proceedings (Dkt. #1) is denied.
DISCUSSION: MALCOLM II
Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed for
failure to state a claim upon which relief can be granted. Fed. R. Civ. Proc. 12(b)(6). In
deciding a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6), the court’s review is limited to the
complaint, and those documents attached to the complaint or incorporated therein by reference.
See Tellabs, Inc. v. Makor Issues & Rights, Ltd.., 551 U.S. 308, 322-23, 127 S. Ct. 2499, 168 L.
Ed.2d 179 (2007). A court must “accept the allegations contained in the complaint as true and
draw all reasonable inferences in favor of the non-movant.” Sheppard v. Beerman, 18 F.3d 147,
150 (2d Cir. 1994), citing Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass’n v. Bernard
M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987).
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However, “bald assertions and
conclusions of law will not suffice” to defeat a motion to dismiss. See Reddington v. Staten
Island Univ. Hosp., 511 F.3d 126, 126 (2d Cir. 2007). “A plaintiff’s obligation . . . requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Where
a plaintiff “ha[s] not nudged [her] claims across the line from conceivable to plausible, [plaintiff’s]
complaint must be dismissed.” Ashcroft v. Iqbal, 556 U.S. 662, 680, 129 S. Ct. 1937, 173 L. Ed.2d
868 (2009).
I.
Plaintiff’s claims against the RCSD and Deane-Williams
“A district court may stay or dismiss a suit that is duplicative of another federal court suit.”
Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000). A suit is duplicative if the parties,
claims against the parties, and the relief sought do not differ significantly from one action to the
other. Morency v. Village of Lynbrook, 1 F. Supp. 3d 58, 61 (E.D.N.Y. 2014).
Plaintiff’s claims against the RCSD and Deane-Williams are identical to the lawsuit filed
against RCSD and Deane-Williams in Malcolm I. Plaintiff’s entire complaint is repeated in her
second lawsuit, as she has copied word-for-word the same factual claims from one suit to the next.
Additionally, the factual allegations as pleaded in both Malcolm I and the present action are
identical, particularly pertaining to allegations regarding RCSD and Deane-Williams. Paragraphs
22 through 79 of Malcolm I are identical to paragraphs 22 through 79 of the present action. The
only differences between the two complaints pertain to allegations pleaded against ASAR
defendants. Plaintiff’s first through ninth causes of actions are identical to causes five through
twelve as pleaded in Malcolm I. The Court therefore dismisses causes of action one through nine
against Defendants RCSD and Deane-Williams for the same reasons it dismissed the claims in
Malcolm I.
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II.
Plaintiff’s ADEA, Title VII, and NYSHRL claims against individual defendants
Pauly, Simpson and Root
The ADEA and Title VII do not provide for personal liability against individuals. See
Guerra v. Jones, 421 F. App’x 15, 17 (2d Cir. 2011); Sassaman v. Gamache, 566 F.3d 307, 315
(2d Cir. 2009). The NYSHRL provides for personal liability as long as the conduct that gave rise
to the claim involved direct participation from the individual defendant. See Malcolm v. Honeoye
Falls-Lima Educ. Ass’n, 678 F. Supp. 2d 100, 106 (W.D.N.Y. 2010); see also Bickerstaff v. Vassar
Coll., 160 F. App’x 61, 63 n. 2 (2d Cir. 2005).
I find that plaintiff’s Title VII and ADEA claims against the individual defendants are
dismissed, as both statutes do not provide liability for individuals. As for plaintiff’s NYSHRL
individual claims against Pauly and Simpson, plaintiff did not allege direct participation in conduct
that gave rise to her discrimination claim anywhere in her complaint. Pauly and Simpson are
mentioned fewer than five times in the complaint, the only factual allegations being that plaintiff
complained to Pauly and Simpson along with several other supervisors of her issues with Root.
Compl. ¶ 61. The fact that plaintiff made a complaint alone does not suggest that any individual
defendant furthered, or directly participated in, a discriminatory employment action. Because
plaintiff essentially pleads no facts regarding Pauly’s and Simpson’s actions, plaintiff has pled no
cause of action and plaintiff’s remaining NYSDHR claims against Pauly and Simpson are
dismissed.
Similarly, nowhere in plaintiff’s complaint does she sufficiently plead how Root is
personally involved with the alleged discrimination. Plaintiff does not allege that Root played an
individual role in the elimination of plaintiff’s position, let alone that she did so with discriminatory
animus. Plaintiff merely makes conclusory and speculative statements saying she was treated
disparately by Root, without detailed factual contentions as to how Root was personally involved.
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Some of the things that plaintiff claims rise to the level of discrimination include giving plaintiff
a developing performance evaluation and failing to warn plaintiff she would receive such a rating.
However, plaintiff does not say how this performance rating is connected in any way to plaintiff’s
race, age or gender. Instead, plaintiff repeatedly makes speculative and conclusory allegations
against Root, claiming she sabotaged plaintiff’s career and harassed plaintiff without any
underlying factual basis. For these reasons, Plaintiff’s remaining NYSHRL claims against Root
are dismissed.
III.
Plaintiff’s Equal Protection Claims under 42 U.S.C. § 1983 and the N.Y.
Constitution
Plaintiff also alleges that she was deprived of her constitutional rights while the defendants
were acting “under color of law,” in violation of 42 U.S.C. § 1983 and the New York State
Constitution, NYS Cons. Art I, Sec. 11. Liability under § 1983 extends only to state actors. See
Williams v. N.Y.C. Hous. Auth., 335 F. App’x 108, 110 (2d Cir. 2009). To establish liability
under § 1983, a defendant must be (1) acting under color of state law and (2) defendant’s actions
resulted in a deprivation of constitutional rights. Washington v. County of Rockland, 373 F.3d
310, 315 (2d Cir. 2004). Merely stating that a party is acting “in color of law” is not enough to
show the nexus required to state a claim under § 1983 or the New York Constitution. Establishing
a defendant’s personal involvement in the alleged constitutional deprivations is a prerequisite to
damages under § 1983. Brown v. City of Syracuse, 197 F. App’x 22, 25 (2d Cir. 2006). For an
individual defendant to be liable, an official must be personally involved by, (1) directly
participating in the constitutional violation, (2) failing to remedy the constitutional violation after
being informed of the violation, (3) creating a policy that allowed for unconstitutional violations
or allowing for unconstitutional violations under the policy, (4) supervising employees who
committed wrongful acts with gross negligence, or (5) exhibiting deliberate indifference towards
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the rights of others. 42 U.S.C. § 1983; Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246,
254 (2d Cir. 2001). The same framework applies to a New York state constitutional violation.
Town of Southold v. Town of East Hampton, 477 F.3d 38, 53 n. 3 (2d Cir. 2007); Weber v. City of
New York, 973 F. Supp. 2d 227, 274 (E.D.N.Y. 2013). An equal protection claim is then analyzed
under the same framework as a Title VII employment discrimination claim. Id., see Feingold v.
New York, 366 F.3d 138, 159 (2d Cir. 2004).
As discussed above, plaintiff has not pled facts sufficient to state a claim that any of the
individual defendants personally violated any of plaintiff’s constitutional rights, just as she had
not done enough to plead that the individual defendants had individually discriminated against
plaintiff under NYSHRL. Because plaintiff has failed to allege that Pauly, Simpson or Rowe’s
actions deprived plaintiff of any constitutional right, plaintiff’s seventh and eighth claims against
Pauly, Simpson and Rowe are dismissed.
IV.
Plaintiff’s Breach of Contract claims
In order to have a breach of contract claim, plaintiff must have been operating under some
contract. Any collective bargaining agreement that RCSD and plaintiff’s union were under
would not be covered by a breach of contract action. See Ifill v. New York State Court Officers
Ass'n, 655 F. Supp. 2d 382, 393 (S.D.N.Y. 2009). Plaintiff does not plead that she and RCSD,
nor any of the individual defendants, were bound by any employment contract, what contract was
supposedly breached, or how even a collective bargaining agreement would have been breached.
Because plaintiff’s complaint is utterly devoid of any semblance of a plausibly pled breach of
contract claim, her breach of contract cause of action is therefore dismissed.
V.
Plaintiff’s Request to Stay Proceedings
Plaintiff requested, as part of her complaint, to stay the current proceedings until her
unexhausted claims are resolved within the NYSDHR and EEOC. Compl. ¶¶ 20-21. When
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considering a request for a stay of proceedings, the court should consider whether (1) plaintiff is
likely to prevail on the merits, (2) the plaintiff will suffer irreparable harm if no stay is granted, (3)
other parties will suffer substantial harm if no stay is granted; and (4) public interest supports a
stay.
Rochester-Genesee Reg’l Transp. Auth. v. Hynes-Cherin, 506 F. Supp. 2d 207, 213
(W.D.N.Y. 2007).
Plaintiff argues that a stay is warranted because of the ongoing NYSDHR proceedings and
that a stay is legally and economically necessary to avoid injustice. Plaintiff admits that the
NYSDHR has jurisdiction over the claims, but instead is seeking additional relief here in federal
court before completing the hearing process in the NYSDHR. As defendants suggest in their
motion to dismiss, public interest instead calls for a denial of plaintiff’s request to stay, as plaintiff
should be required to exhaust her administrative remedies just like every other litigant who files a
claim with the NYSDHR and the EEOC. Dkt. #6-10, p. 9. Because I conclude that the causes
of action should be dismissed above for failure to exhaust administrative remedies upon which
plaintiff bases her request to stay, and plaintiff’s complaint is dismissed for failure to state a claim,
her request to stay proceedings is denied.
VI.
Plaintiff’s Motion to Amend the Complaint
Plaintiff also has moved to amend the complaint (Dkt. #12). Leave to amend, while it
should be freely granted, may be denied where amendment would be futile. Malcolm, 678 F.
Supp. 2d at 109. The Federal Rules of Civil Procedure detail the baseline for what is necessary
in order to request leave to amend, including a notice of motion and a statement “with particularity
the grounds for seeking the order” which may include a proposed amended complaint. Fed. R.
Civ. P. 15(a), 6(c)(1), 7(b)(1)(B). Failing to attach a proposed amended complaint may warrant
dismissal. L. R. Civ. P. 15; Murray v. New York, 604 F. Supp. 2d 581, 588 (W.D.N.Y. 2009).
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Plaintiff has not submitted a proposed amendment to her complaint that would warrant
leave to amend.
While plaintiff has asserted additional factual contentions in her later
declarations and memoranda (see Dkt. #11, 12), none are presented in the form of a proposed
amended complaint, and none indicate plaintiff has exhausted her administrative remedies or
suggest any additional claims of discrimination. Because I conclude that the complaint must be
dismissed, and plaintiff has not suggested any proposed amendments that address any of
defendants’ arguments, amendment of the complaint would be futile. Plaintiff’s motion for leave
to amend is denied.
CONCLUSION: MALCOLM II
For the foregoing reasons, I find that Plaintiff has failed to exhaust her administrative
remedies and failed to state a claim against any defendant with respect to her Title VII, ADEA,
NYSDHR and Equal Protection claims.
Accordingly, defendants’ motion to dismiss the
complaint (Dkt. #6) is granted, and the complaint is dismissed, with prejudice.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
July 11, 2019.
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