Bernheim v. N.Y. City Dep't of Educ.
| Decision Date | 25 June 2021 |
| Docket Number | 19-CV-9723 (VEC) (JLC) |
| Parties | LAURA BERNHEIM, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION; ANNELISE FALZONE, Field Supervisor; JAMES QUAIL, Field Supervisor, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Laura Bernheim, proceeding pro se, brings this action against the New York City Department of Education (“DOE”) and two of her DOE supervisors, Annelise Falzone and James Quail.[1] She alleges that she suffered discrimination, retaliation, and a hostile work environment in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), the Rehabilitation Act of 1973 (“Rehab Act”), the Americans with Disabilities Act of 1990 (“ADA”), the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). She also alleges interference and retaliation under the Family and Medical Leave Act of 1993 (“FMLA”). The DOE has moved to dismiss the amended complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, I recommend that the motion be granted except as to the ADA retaliation claim, but that Bernheim be given leave to file a second amended complaint.
The following facts are taken from the amended complaint and are accepted as true for the purposes of this motion. Because Bernheim is proceeding pro se, the Court also considers allegations made for the first time in her opposition brief. See, e.g., Saudagar v. Walgreens Co., No. 18-CV-437 (KPF), 2019 WL 498349, at *1 n.1 (S.D.N.Y. Feb. 8, 2019) (“A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion.” (quoting Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013)).
Bernheim is 51 years old and has been employed as an elementary school teacher with the DOE since September 1999. Dkt. No. 34, (“Amended Compl.”) at ¶¶ 1-2. Since 2014, she has been assigned to the Absent Teacher Reserve (“ATR”) pool, which rotates its teachers to different schools on a monthly basis. Id. ¶ 4. Bernheim has been assigned to P.S. 134 in the Bronx since September 2020. Id.
Bernheim suffers from severe Irritable Bowel Syndrome (“IBS”). Id. ¶ 3. As a result of her condition, she took a “six month medical sabbatical, ” which was approved by the DOE's doctors. Id. ¶ 3. In June and August of 2018, she requested FMLA leave for her severe IBS. Id. ¶ 5. Both requests were denied, but she took numerous intermittent absences due to her IBS. Id. In response to her absences, the DOE issued multiple discipline letters to her beginning in March 2018. Id. On December 19, 2019, Bernheim was served with New York Education Law Section 3020-a charges, seeking termination of her employment, which Bernheim alleges was in retaliation for requesting leave. Id. ¶ 6; see also N.Y. Educ. Law § 3020-a. Bernheim additionally alleges that “other senior teachers in the ATR pool [have] also been targeted with disciplinary letters and Section 3020-a charges.” Id. ¶ 7. In June 2020, a decision was rendered on the Section 3020-a charges, “resulting in a fine equivalent to a 90-day suspension without pay.” Id. ¶ 6.
Bernheim filed a charge of discrimination with the EEOC “[o]n or about” January 10, 2019. Dkt. No. 2, at 6. On September 18, 2019, the EEOC issued a right to sue notice to Bernheim and she received the notice on September 20, 2019. Id. On October 18, 2019, using the Southern District's form complaint for pro se litigants raising employment discrimination claims, Bernheim commenced this suit against the DOE and Field Supervisors Annelise Falzone and James Quail. Id. at 1-3. In her original complaint, Bernheim alleged that she has been discriminated against on the basis of her age and disability, “severe IBS with diarrhea, ” in violation of the ADEA; the Rehab Act; the ADA; the FMLA; NYSHRL; and NYCHRL. Id. at 4.
On February 3, 2020, the DOE and Quail moved for partial dismissal of the complaint. Dkt. No. 12. On February 5, 2020, this case was referred to me for general pre-trial supervision and for a report and recommendation on Defendants' motion. Dkt. No. 17. On April 23, 2020, Falzone moved to dismiss the complaint as against her. Dkt. No. 25.
On July 9, 2020, I issued a report and recommendation on both motions, which was subsequently adopted in full on July 31, 2020. Dkt. Nos. 30-31. At that time, the Court dismissed: (1) the ADA, ADEA, and Rehab Act claims against Quail and Falzone without leave to amend; (2) the NYSHRL and NYCHRL claims against all Defendants with leave to amend; and (3) the FMLA claim against Quail and Falzone with leave to amend. Dkt. No. 31. The Court instructed Bernheim to file a notice of claim for her NYSHRL and NYCHRL claims based on her medical issues- but not on her age-no later than August 14, 2020 as well as an amended complaint no later than September 25, 2020. Id. The Court further instructed that the amended complaint “must allege whether [Bernheim] served a notice of claim on [the DOE] and whether [the DOE] provided her the requested relief within 30 days of such service.” Id. Bernheim filed a notice of the claim on or about August 12, 2020. Amended Compl. ¶ 8.
On October 23, 2020, Bernheim filed an amended complaint. See Dkt. No. 34. On October 29, 2020, the Court dismissed all remaining claims against Quail and Falzone with prejudice and declined to grant Bernheim further leave to amend her claims against them. Dkt. No. 35. As a result, the DOE is the only remaining defendant.
On November 6, 2020, the DOE moved to dismiss the amended complaint in its entirety. Defendant's Motion to Dismiss Amended Complaint, Dkt. No. 37; Defendant's Memorandum of Law in Support of its Motion to Dismiss (“Def. Mem.”), Dkt. No. 28. Bernheim submitted her opposition on December 29, 2020, and sought leave, if necessary, to file a second amended complaint. Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss (“Pl. Mem.”), Dkt. No. 43. Briefing was completed on January 12, 2021 with the DOE's reply. Defendant's Reply Memorandum of Law (“Def. Reply”). Dkt. No. 44.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a plaintiff must plead facts in her complaint that “state a claim to relief that is plausible on its face” and that satisfy Federal Rule of Civil Procedure 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Id. (quoting Fed.R.Civ.P. 8(a)(2)). A claim is facially plausible when the plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 663 (citing Twombly, 550 U.S. at 556). Nevertheless, this standard still requires a plaintiff's pleadings to sufficiently “nudge[ ] [its] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Furthermore, “[a] plaintiff's obligation to provide the grounds of [her] entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. Therefore, “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) ().
Because Bernheim is proceeding pro se, “the Court must construe [her] pleadings liberally and ‘interpret them to raise the strongest arguments that they suggest.'” Wang v. Palmisano, 157 F.Supp.3d 306, 317 (S.D.N.Y. 2016) (quoting Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 347 (S.D.N.Y. 2009)); Henriquez-Ford v. Council of Sch. Sup'rs & Adm'rs, No. 14-CV-2496 (JPO), 2015 WL 3867565, at *4 (S.D.N.Y. June 23, 2015) (“[T]he Court interprets the pro se Amended Complaint in this action with ‘special solicitude,' to raise the ‘strongest [claims] that [it] suggest[s].'” (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006)). “However, the liberal treatment afforded to pro se litigants does not excuse a pro se party ‘from compliance with relevant rules of procedural and substantive law.'” Wang, 157 F.Supp.3d at 317 (quoting Maisonet, 640 F.Supp.2d at 348). In other words, “while the Court must draw the most favorable inferences that a plaintiff's complaint supports, it cannot invent factual allegations that a plaintiff has not pled.” Daly v. Westchester Cty. Bd. of Legislators, No. 19-CV-4642 (PMH), 2021 WL 229672, at *4 (S.D.N.Y. Jan. 22, 2021) (alterations and quotations omitted) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)).
The Court broadly interprets Bernheim's amended complaint as alleging nine causes of action under four federal statutes the FMLA, the ADEA, the ADA, and the Rehab Act. Under the FMLA, she alleges interference and retaliation. Under the ADEA, she alleges age discrimination based on an adverse employment action, retaliation, and a hostile work environment. Under the ADA and Rehab Act, she alleges disability discrimination based on an adverse...
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