Curry-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 2 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 CURRY-MALCOLM,
Plaintiff,
DECISION AND ORDER1
(Malcolm III)
18-CV-6450L
v.
ROCHESTER CITY SCHOOL DISTRICT, and
BARBARA DEANE-WILLIAMS, Superintendent of
Schools, Individually,
Defendants.
________________________________________________
INTRODUCTION: MALCOLM III
Plaintiff Bernice Curry-Malcolm (“plaintiff”), proceeding pro se, brings this action against
defendants Rochester City School District (“RCSD”) and its superintendent, Barbara DeaneWilliams (“Deane-Williams”). Plaintiff is a 61-year-old African-American woman who was
employed with the RCSD starting in April of 2015 as a Central Office Coordinating Administrator
of Special Education (“CASE”) as a probationary employee. Plaintiff’s position was terminated
in March 2017 along with twenty-two other CASE employees as a result of budgetary concerns.
Plaintiff was then placed on a preferred eligibility list for seven years, meaning she could be
recalled and resume employment if a position were open, just as the other CASE employees could.
Plaintiff was offered another probationary appointment on June 14, 2017 as a “TCOSE”
with a decreased salary after she lost her initial CASE position. Plaintiff declined this offer and
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Two other decisions filed by the same plaintiff (17-CV-6873 and 17-CV-6878) have been filed this date.
was eventually recalled from the preferred eligibility list and rehired by the RCSD on November
20, 2017 as a probationary CASE employee.
In addition to her multiple complaints filed in the NYSDHR, two of which have been
dismissed with prejudice, plaintiff has now filed a total of three lawsuits in federal court against
the RCSD and Deane-Williams. See Malcolm v. Rochester City School Dist., et al., 17-CV-6873
(W.D.N.Y. 2017) (action alleging discrimination by the RCSD and an assortment of district
employees); Malcolm v. Assoc. of Supervisors and Administrators of Rochester, 17-CV-6878
(W.D.N.Y. 2017) (action alleging discrimination by the RCSD, Deane-Williams, and plaintiff’s
union). Upon receipt of her right to sue letter from the EEOC in her fifth charge filed in the
NYSDHR, plaintiff then filed the present lawsuit (Malcolm III).
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, § 8 and 11, as
well as a state law breach of contract and breach of collective bargaining agreement claim against
defendants. In addition to asserting similar claims to those made in her prior two lawsuits,
plaintiff also pleads facts alleging retaliation following her recall to the RCSD. Plaintiff alleges
that the RCSD has been retaliating against her by, among other things, allegedly recording their
conversations, changing her marital status on tax forms, and hacking into her personal cell phone.
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 to amend her complaint.
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For the reasons set forth below, defendant’s motion to dismiss (Dkt. #2) is granted, and the
Complaint is dismissed. Plaintiff’s motion to amend the complaint (Dkt. #12) is denied, and
plaintiff’s request to stay proceedings (Dkt. #1) is denied.
DISCUSSION: MALCOLM III
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). 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). For employment discrimination claims, a plaintiff need not establish a prima facie
case, but instead must only make a short and plain statement of the claim, giving notice of what
the claim is and the grounds for the claim. See Morales v. Long Island R.R. Co., No. 09 CV 8714,
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2010 WL 1948606, at *2-3, 2010 U.S. Dist. LEXIS 47926, at *7-8 (S.D.N.Y. May 14, 2010),
citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S. Ct. 992, 152 L. Ed.2d 1 (2002).
I.
Plaintiff’s claims involving events prior to plaintiff’s recall
A district court is afforded “a great deal of latitude and discretion” when determining if
one lawsuit is duplicative of another. Morency v. Village of Lynbrook, 1 F. Supp. 3d 58, 61
(E.D.N.Y. 2014) (quoting Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7t Cir. 1993). “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,
1 F. Supp. 3d at 61. A party seeking to enforce a claim is not “at liberty to split up his demand,
and prosecute it by piecemeal, or present only a portion of the grounds upon which special relief
is sought.” United States v. Haytian Republic, 154 U.S. 118, 125, 14 S. Ct. 992, 38 L. Ed. 983
(1894) (quoting Stark v. Starr, 94 U.S. 477, 485, 24 L. Ed. 276 (1876)).
Before the resolution of her prior two lawsuits, plaintiff filed the current action alleging
similar, if not the same claims as outlined in her other two complaints. Instead of waiting for a
ruling on her motion to amend the complaint in both lawsuits, plaintiff instead filed the present
lawsuit adding additional factual contentions to the ones she had made in her prior filings. In
fact, plaintiff does not attempt to distinguish this case from her other two, noting that the current
action should be stayed pending the same NYSDHR proceedings.
While plaintiff does not necessarily copy the same exact text from her prior complaint as
she did in the two prior cases, here she details many of the same instances and events that she has
pled in suits in the past. Her complaint rests on the same nucleus of operative facts: whether or
not plaintiff was discriminated against during the course of her employment at the RCSD.
Because of this, all of plaintiff’s claims that are repeated or repled with additional facts regarding
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her layoff in March 2017 are dismissed. The Court will now consider plaintiff’s claims that she
makes after her recall in November 2017.
II.
Plaintiff’s ADEA, Title VII, and NYSHRL claims against RCSD
A claimant must exhaust administrative remedies through the EEOC before bringing
ADEA and Title VII claims to federal court. Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274
F.3d 683, 686 (2d Cir. 2001). Additionally, plaintiff may not file suit in a federal court if any
administrative proceedings are still ongoing.
See Malachi v. Postgraduate Ctr. for Mental
Health, No. 10-CV-3527, 2013 WL 782614, at *2, 2013 U.S. Dist. LEXIS 30221, at *4-5
(E.D.N.Y. Mar. 1, 2013).
If plaintiff has elected to pursue her remedies in the NYSDHR, she
also cannot seek the same remedies in federal court. See id.
There are still proceedings pending in the NYSDHR and EEOC regarding plaintiff’s claims
against the RCSD. In the dismissal letter that plaintiff received from the NYSDHR that she
attached to her complaint, plaintiff is notified her claims have already been addressed in her other
NYSDHR charges. While plaintiff claims that she has been issued a right to sue letter in her other
NYSDHR claims and therefore has properly filed suit, plaintiff’s claims are indistinguishable from
case to case and many of the claims plaintiff alleges in the current complaint are clearly the same
as alleged in her first NYSDHR charge which is still pending. Plaintiff even details proceedings
with the NYSDHR in her current complaint.
As for the claims occurring after plaintiff was recalled, plaintiff does not detail if, when or
how she followed any grievance procedure as required. She failed to allege filing a complaint
with the proper administrative authority, or even that she made an informal complaint to any of
her supervisors regarding the alleged discriminatory and retaliatory conduct now raised in this
complaint. Plaintiff continues to make bald assertions that she has “exhausted her administrative
remedies” yet she does not detail how she did so. Plaintiff’s NYSDHR complaint that she is
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appealing in this action was filed before she was recalled to her position and did not include any
claims regarding any alleged retaliation after she was recalled. Due to plaintiff’s failure to
exhaust her administrative remedies against the RCSD and her ongoing administrative
proceedings, plaintiff’s ADEA, Title VII, and NYSHRL claims against RCSD are dismissed.
III.
Plaintiff’s ADEA, Title VII, and NYSHRL claims against Deane-Williams
individually
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, on the other hand, 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 Deane-Williams must be
dismissed, as both statutes do not provide liability against individuals.
As for plaintiff’s
NYSHRL individual claims against Deane-Williams, plaintiff did not allege direct participation in
conduct that gave rise to her discrimination claim anywhere in her complaint. Deane-Williams is
only mentioned five times in the complaint. Those five references set forth no actions or events
taken by Deane-Williams, and merely speculate as to Deane-Williams’ reasons for discriminating
against plaintiff. Compl. ¶¶ 8, 58, 156, 321, 328. Because plaintiff essentially pleads no facts
detailing Deane-William’s actions, plaintiff has failed to plead any individual NYSHRL cause of
action against Deane-Williams and those claims are dismissed.
IV.
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 in violation of 42
U.S.C. § 1983 and the New York State Constitution, NYS Cons. Art I, Sec. 8 and 11. To establish
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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). 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 the rights of others. 42 U.S.C. § 1983; Johnson v. Newburgh
Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001).
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). 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).
Plaintiff failed to plead facts sufficient to state a claim that Deane-Williams personally
violated any of plaintiff’s constitutional rights, just as she had not done enough to plead that DeaneWilliams had individually discriminated against plaintiff under NYSHRL. Because plaintiff has
failed to allege any new facts that Deane-Williams’ actions deprived plaintiff of any constitutional
right, plaintiff’s fourth and sixth causes of action against Deane-Williams are dismissed.
While RCSD could be deemed to act under color of state law as a public school district,
plaintiff does not detail how the RCSD’s actions deprived plaintiff of any constitutional rights
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based on her new allegations. Plaintiff claims that the RCSD subjected her to disparate treatment
but does not provide any factual basis for such claims. Instead of pleading specific instances of
retaliatory conduct or disparate treatment, plaintiff details computer and email issues she was
having, a time she was locked out of a bathroom, police presence at her job, and payroll errors that
plaintiff attributes to a conspiracy to discriminate by RCSD employees against plaintiff. Plaintiff
even makes multiple accusations of tax fraud against the defendants and her former employer, the
Honeoye Falls-Lima Central School District, all without providing any factual basis or tying it to
any of her causes of action.
Plaintiff continues to assert vague and speculative accusations without any factual support
and fails to link any of her allegations to any form of discriminatory or retaliatory animus. For
these reasons, I find that plaintiff has failed to state an equal protection claim against the RCSD
and her fourth and sixth causes of action are therefore dismissed.
Plaintiff also makes a claim under the New York Constitution, Article I § 8. The provision
protects freedom of speech.
In order to allege a violation under Section 8 and the First
Amendment, the plaintiff must allege that (1) she engaged in a protected First Amendment activity,
(2) suffered an adverse action, and (3) there was a causal connection between the protected activity
and the adverse action. See Lee-Walker v. N.Y.C. Dep’t of Educ., 220 F. Supp. 3d 484, 490
(S.D.N.Y. 2016) aff’d sub nom. Lee-Walker v. N.Y.C. Dept of Educ., 712 F. App’x 43 (2d Cir.
2017). An employee “has no… cause of action based on his or her employer’s reaction to the
speech.” Garcetti v. Ceballos, 547 U.S. 410, 419, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006).
Plaintiff does not plead any protected first amendment activity, nor does she make any argument
as to how the defendant’s actions of alleged discrimination, harassment and retaliation limited her
freedom of speech. For this reason, plaintiff’s Article I § 8 claims are also dismissed.
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V.
Plaintiff’s Breach of Contract, Breach of Collective Bargaining Agreement, and New
York Education Law § 3020-a claims
In order to have a breach of contract claim, plaintiff must have been operating under some
contract. Plaintiff does not plead that she and RCSD were bound by any employment contract or
that there was some contract that was actually breached. See Ifill v. New York State Court Officers
Ass'n, 655 F. Supp. 2d 382, 393 (S.D.N.Y. 2009). Plaintiff alleges that the RCSD failed to adhere
to the collective bargaining agreement by failing to provide her notice of termination but does not
allege what portion of the agreement was breached, nor does she assert how such a failure to notify
plaintiff would amount to a breach. Because plaintiff has not alleged any actual breach of contract
or any collective bargaining agreement, such claims are dismissed.
Plaintiff also claims the RCSD breached its collective bargaining agreement and
wrongfully terminated plaintiff with respect to New York Education Law § 3020-a. However,
this statute covers tenured teachers, and plaintiff, by her own admission, was a probationary
employee and had not received tenure. See Murphy v. City of Rochester, 986 F. Supp. 2d 257,
272 (W.D.N.Y. 2013); Watkins v. Board of Educ. Of Port Jefferson Union Free School. Dist., 26
A.D.3d 336, 337 (N.Y. App. Div. 2006). Plaintiff’s § 3020-a claim is therefore dismissed.
VI.
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. ¶¶ 13-15. When
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).
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Plaintiff argues that a stay is warranted because she is confident she will prevail on the
merits. Plaintiff admits that the NYSDHR has jurisdiction over the claims and that a hearing is
still pending, 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. #2. 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.
VII.
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).
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. #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. Plaintiff also continues to clarify her other complaints as she
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files new lawsuits, all while failing to plead actual factual allegations. 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 III
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. #2) 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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