Illiano v. Mineola Union Free School Dist.
| Decision Date | 07 November 2008 |
| Docket Number | No. 08CV529 (ADS)(MLO).,08CV529 (ADS)(MLO). |
| Citation | 585 F.Supp.2d 341 |
| Parties | Ulana ILLIANO, Plaintiff, v. The MINEOLA UNION FREE SCHOOL DISTRICT, Lorenzo Licopoli, individually and in his capacity as Superintendent of the Mineola Union Free School District, and Michael Nagler, individually and in his capacity as Deputy Superintendent of the Mineola Union Free School District, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Law Offices of Harry Weinberg by Harry Mark Weinberg, Esq., of Counsel, New York, NY, for Plaintiff.
Devitt Spellman Barrett, L.L.P. by Jeltje DeJong, Esq., of Counsel, Smithtown, NY, for Defendant Mineola Union Free School District.
Miranda & Sokoloff, LLP by Brian S. Sokoloff, Esq., of Counsel, Mineola, NY, Leeds Morelli & Brown by Rick Ostrove, Esq. of Counsel, Carle Place, NY, for Defendant Lorenzo Licopoli.
Callan, Regenstreich, Koster & Brady by Paul F. Callan, Esq., of Counsel, New York, NY, for Defendant Michael Nagler.
On February 8, 2008, Ulana Illiano ("the Plaintiff") initiated this action against the Mineola Union Free School District ("the School District"), District Superintendent Lorenzo Licopoli ("Licopoli"), and Deputy District Superintendent Michael Nagler ("Nagler") (collectively "the Defendants"). Thereafter, each of the Defendants filed a motion to dismiss the Complaint. On May 8, 2008, the Plaintiff filed an Amended Complaint seeking reinstatement to her former position and asserting: (i) a religion-based hostile work environment claim under N.Y. Executive Law § 296 ("New York Human Rights law" or "NYHRL") against Licopoli and the School District; (ii) a gender-based hostile work environment claim under NYHRL; (iii) retaliation claims under NYHRL; (iv) violations of N.Y. Civil Rights Law § 40 and N.Y. Civil Service Law § 75; (v) constitutional violations under 42 U.S.C. § 1983; and (vi) a defamation claim against Nagler and Licopoli ("the individual Defendants").
On June 9, 2008, Nagler filed a motion to dismiss the Amended Complaint, however, neither the School District nor Licopoli renewed their motions to dismiss. Nonetheless, all of the Defendants' motions will be considered in light of the Amended Complaint. Presently before the Court are the Defendants' motions to: (i) dismiss under FED.R.Civ.P. 12(b)(6); and (ii) strike certain paragraphs of the Amended Complaint under FED.R.Civ.P. 12(f).
The Plaintiff worked for the School District for eight years between September of 1999 and June of 2007. She started out as a substitute clerical worker and eventually became an administrative assistant to the District Superintendent. In the latter position, the Plaintiff reported to Licopoli but also received direction from and was managed by Nagler. The Plaintiff alleges that between 2005 and 2007, the individual Defendants created a hostile work environment by, among other things, making sexually offensive and anti-Semitic comments.
The Plaintiff avers that Nagler told her that she "could be one of his girls," and that he "could have [her] anytime he wanted to." The Plaintiff further alleges that Nagler maintained an inappropriate relationship with his other administrative assistant by "constantly placing his hands on [her] body" and speaking to her with profane and sexually suggestive language. The Plaintiff also contends that, at a meeting, Nagler referred to former District Assistant Superintendent Shari Camhi ("Camhi") as a "cunt".
The Plaintiff contends that Licopoli also referred to Camhi as a "cunt" and on at least one occasion called Camhi a "Jewish cunt". The Plaintiff alleges that Licopoli made a number of other anti-Semitic comments including: a remark that an unnamed Jewish employee had a "fucking real Jew attitude"; disparaging remarks about the Jewish holidays; telling the Plaintiff that one Jewish employee was "okay" because she wasn't "a practicing Jew" while another Jewish employee was not "okay" because she "strut[ted] around ... with her Jewish star"; telling the Plaintiff that he wasn't used to "all th[e] Jew holidays" because there were no Jews in upstate New York where he was raised.
Although the Plaintiff is not Jewish, she claims that she found these comments to be offensive and repeatedly so informed Licopoli. According to the Plaintiff, after she told Licopoli that she intended to complain to the Board of Education about his and Nagler's offensive comments, Licopoli threatened that if she did so he would not write her a positive reference when she was terminated or forced to resign. The Plaintiff also alleges that the individual Defendants reminded her that it would not be in the best interests of her daughter, a student in the district, for the Plaintiff to continue voicing complaints about their behavior.
Nonetheless, the Plaintiff eventually complained about the individual Defendants in an email to Camhi, who was by then no longer employed by the School District. In the email, the Plaintiff told Camhi about the alleged offensive behavior by the individual Defendants and noted to Camhi that she believed Nagler was giving preferential treatment to the other administrative assistant because she and Nagler were carrying on a flirtatious relationship. The Plaintiff contends that Licopoli managed to obtain a copy of this email despite the fact that she sent it to Camhi from home using her personal email account. The Plaintiff alleges that Licopoli must have obtained the email by maintaining access to the School District email account that Camhi used when she was the Assistant District Superintendent. On April 9, 2008, Nagler filed a lawsuit against the Plaintiff in New York State Supreme Court, Nassau County, alleging that the Plaintiff defamed him in this email.
The Plaintiff maintains that, after Licopoli intercepted her email, he advised the Plaintiff she would likely be fired for having breached her confidential status as a School District employee. According to the Plaintiff, Licopoli used the email as a pretext for seeking her termination when in fact he actually sought to fire her because of her complaints about his and Nagler's offensive behavior. The Plaintiff contends that in May of 2007, Licopoli gave the Plaintiff three options: apologize to Nagler for her statements about him; resign; or be fired. According to the Plaintiff, when she refused to do any of the above, Licopoli instructed the Plaintiff to type and sign a resignation letter he had prepared for her. Although the Plaintiff signed the letter, she maintains that she was constructively discharged because she was coerced into resigning.
The Plaintiff alleges that after she tendered her resignation, she spoke to School District Board of Education members Lawrence Carroll, Larraine Salvatore, John McGrath, Mary Ellen Williams, and Stephen Siniski, who each informed her that Licopoli told them she was fired because she breached her confidential status as a School District employee. The Plaintiff also avers that Nagler told his administrative assistant, Virginia Schepis, and District Assistant Superintendent for Business and Finance, Maureen Judge, that the Plaintiff was terminated for having sent personal emails from her work account. The Plaintiff contends that the individual Defendants defamed her in making these statements.
The Plaintiff also maintains that, following her alleged constructive discharge, the School District warned her that she would be sued if she filed a lawsuit against the School District, Licopoli, or Nagler.
In considering a 12(b)(6) motion to dismiss, "`[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir.2001) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). In this regard, the Court must "accept all of the plaintiff's factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Starr v. Georgeson S'holder, Inc., 412 F.3d 103, 109 (2d Cir.2005); Desiderio v. Nat'l Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.1999).
A complaint should be dismissed only if it does not contain enough allegations of fact to state a claim for relief that is "plausible on its face." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The Second Circuit has interpreted Twombly to require that a complaint "allege facts that are not merely consistent with the conclusion that the defendant violated the law, but which actively and plausibly suggest that conclusion." Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir.2007).
"When a plaintiff amends its complaint while a motion to dismiss is pending" the court may "den[y] the motion as moot [or] consider[] the merits of the motion in light of the amended complaint." Roller Bearing Co. of America, Inc. v. American Software, Inc., 570 F.Supp.2d 376, 384 (D.Conn.2008). Here, although Licopoli and the School District did not renew their motions to dismiss after the filing of the Plaintiff's Amended Complaint, the Court chooses to analyze each of the Defendants' 12(b)(6) motions in light of the Amended Complaint.
The Plaintiff's hostile work environment claim is predicated upon NYHRL § 296 which provides, in pertinent part, that "it shall be unlawful discriminatory practice for an employer ... because of creed ... [or] sex ... to discharge from employment such individual in compensation or in terms, conditions or privileges of employment." "A supervisor is an `employer' for purposes of establishing...
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