Linder v. City of New York

• Decision Date: 13 March 2003
• Docket Number: No. 01 CV 8245ILG.,01 CV 8245ILG.
• Parties: Wendy LINDER, Plaintiff, v. THE CITY OF NEW YORK, et. al. Defendants.
• Court: U.S. District Court — Eastern District of New York

263 F.Supp.2d 585

Wendy LINDER, Plaintiff, v. THE CITY OF NEW YORK, et. al. Defendants.

No. 01 CV 8245ILG.

United States District Court, E.D. New York.

March 13, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David Craig Nevins, Leeds, Morelli & Brown, Carle Place, NY, for Wendy Lindner.

Jane R. Goldberg, Office of the Corporation Counsel, New York, NY, for City of New York, New York City Dept. of Educ.

George Shebitz, Shebitz Berman & Cohen, Inc, New York, NY, for Brian Dalton.

MEMORANDUM & ORDER

GLASSER, District Judge.

FACTS

Plaintiff was a teacher at a New York City public school. On December 18, 2000, she was attending a school-sponsored party held at a local establishment when fellow teacher Brian Dalton ("Dalton") emerged from the women's restroom and collided with her. Compl. ¶ 12. He wrapped his arms around her, ignoring her requests to be let go, and said to her "I want you, I want you now, fuck my girlfriend, I want you." Compl. ¶ 13. Two other women rushed out of the women's restroom at about the same time, shouting that Dalton had followed them in to the restroom and thrown one of them into a bathroom stall. Compl. ¶ 14. Dalton continued his sexually suggestive comments and off-color language while grabbing plaintiff by the hair and throat. He touched her breast and then pressed his face into her pelvis, saying he wanted to have oral sex with her. He rubbed his fingers, through her clothes, into her vagina and anus, and then pulled the front of her shirt off. Compl. ¶ 15. Plaintiff was finally able to escape when a coworker pulled Dalton off of her. Compl. ¶ 16.

The next day, plaintiff filed a complaint with the school, and informed the school's principal, Steven Callari ("Callari") of the incident. Callari told her that two other women had complained about Dalton's behavior the night before, and that Dalton would be disciplined and removed from the school. Compl. ¶ 18. Callari also informed the school's superintendent, Matthew Bromme ("Bromme"), of the incident. Compl. ¶ 19.

The following day, plaintiff called Callari before school to tell him that she intended to file a police report of the incident. Callari responded angrily, saying that he had thought she was not going to file a police report and instead keep the matter within the school. Compl. ¶ 20.

Around January, 2001, the School's Office of Equal Opportunity investigated plaintiffs complaint. That investigation resulted in a finding, dated January 21, that Dalton had sexually assaulted the plaintiff. Compl. ¶ 21. Nevertheless, Dalton resumed his teaching position at the school just a short time later. Compl. ¶ 22. About that same time, Callari told plaintiff that the two other women who had complained about Dalton's behavior that night had withdrawn their complaints. Shortly thereafter, both women were promoted. Compl. ¶ 23. Plaintiff, meanwhile, found herself ostracized by her colleagues. Compl. ¶ 24. She was written up for minor infractions of rules which were not being enforced against the women who had withdrawn their complaints. Compl. ¶ 25. The school refused to pay her medical expenses incurred as a result of the incident with Dalton. Compl. ¶ 26. She was transferred from a class where she was teaching gifted children to one comprised of children in the lower percentages of the grade. Compl. ¶ 27. Around June of that year, plaintiff was informed that her assigned classroom was to be changed from one in the main school building to one in the satellite school building, in an area close to where Dalton worked when not teaching. Compl. ¶ 28. Plaintiff complained about her treatment to the school's assistant principal, Dino Biannconotti ("Biannconotti"), who told her that he would speak to Callari, and not to worry. Compl. ¶ 30.

The day after making this complaint, the plaintiff was notified by Callari that she was scheduled for a disciplinary hearing. She again complained to Biannconotti, who again informed her that he would speak to Callari. Compl. ¶ 31. When she attended this hearing, she was shown a letter purportedly from Biannconotti, claiming that she had threatened him with going to the press and having Dalton arrested. Compl. ¶ 32.

By August of that year, plaintiff decided that her working conditions were intolerable, and tendered her resignation. Compl. ¶ 33. The following month. Dalton was promoted to the position of guidance counselor. Compl. ¶ 34.

PROCEDURAL POSTURE

Prior to filing this complaint, plaintiff filed a charge of discrimination with the EEOC on either November 8 or November 18, 2001.¹ In December of 2001, plaintiff brought this action alleging assault and battery against Dalton, and violations of 42 U.S.C. §§ 1981, 1983, 1985 and 1986 and the Equal Protection Clause as well as a claim for negligent retention against the other defendants. She named as defendants New York City, The NYC Board of Education, Bromme, Callari, Biannconotti (collectively the "individual defendants") and Dalton. All defendants (absent Dalton) moved to dismiss the complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). On May 21, 2002, plaintiff received a right-to sue letter from the EEOC. Plaintiff now moves for leave to amend the complaint under Fed.R.Civ.P. 15(a), to include claims under Title VII, 42 U.S.C. §§ 2000e et seq., Title IX, 20 U.S.C. §§ 1681 et seq., New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. and N.Y.C. Admin. Code Title 8-101 et seq. For the following reasons, some of the motions to dismiss are granted, while others are denied, and the motion to amend is granted in part.

DISCUSSION

Motion to dismiss

1. Standard of Review

On a Rule 12(b)(6) motion, the Court must accept as true the factual allegations of the complaint, and view the complaint in the light most favorable to the non-moving party. Bolt Elec. Inc. v. City of N.Y., 53 F.3d 465, 469 (2d Cir.1995). Dismissal is warranted only if "it appears beyond doubt that plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Walker v. City of N. Y., 974 F.2d 293, 298 (2d Cir.1992) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

2. Plaintiff's claims against the City of New York

These claims must be dismissed, since the Board of Education is an entity separate from the City itself, see, e.g., Campbell v. City of New York, 203 A.D.2d 504, 611 N.Y.S.2d 248, 249 (2d Dept.1994), and the City is not liable for torts committed by that Board. Titusville Iron Co. v City of New York, 207 N.Y. 203, 100 N.E. 806 (1912). Plaintiff does not dispute this point in her memorandum of law.

3. Plaintiffs § 1981 claims

These claims must be dismissed, since this statute applies only to allegations of racial discrimination, and plaintiff does not allege that she is a member of a racial minority. Plaintiff does not dispute this point in her memorandum of law either.

4. Plaintiffs § 1985 and § 1986 claims

42 U.S.C. § 1985 prohibits two or more people from conspiring to interfere with the exercise of another's civil rights based on a discriminatory animus. See Greene v. Hawes, 913 F.Supp. 136, 143 (N.D.N.Y.1996). Conspiracy is an essential element of such a claim. Id. Here, however, the remaining parties are the Board of Education and several of its employees, all members of a single entity. Plaintiffs claims are therefore barred by the intra-corporate (or intraenterprise) conspiracy doctrine, according to which members of a single entity cannot be found to have conspired together with such entity or with each other in their capacity as members of the entity. See, e.g., Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir.1978). The defendants cannot, as a matter of law, be found to have conspired together.

The failure of this claim also requires dismissal of plaintiffs section 1986 claim, since a prerequisite for such a claim is a valid claim under section 1985. Mian v. Donaldson, Lufkin & Jenrette Sees. Corp., 7 F.3d 1085,1088 (2d Cir.1993).

5. Plaintiff's negligent retention claim

Under the New York law of negligent retention, an employer has a duty to use reasonable care and refrain from knowingly retaining a person with known dangerous propensities. Haddock v. City of New York, 140 A.D.2d 91, 532 N.Y.S.2d 379, 380 (1988), aff'd 75 N.Y.2d 478, 554 N.Y.S.2d 439, 553 N.E.2d 987 (1990). A necessary element of such a claim is that the employer knew or should have known of the employee's propensity for the conduct that caused the injury. Brannon v. Tarlov, 986 F.Supp. 146, 150 (E.D.N.Y. 1997). Here, the complaint asserts, albeit on information and belief, that similar incidents of inappropriate conduct of a sexual nature by Dalton had been reported to the school prior to the assault on plaintiff. Compl. ¶ 18. It is therefore arguable that the Board of Education failed to use reasonable care in knowingly retaining Dalton, and the complaint states a claim for negligent retention. Further, despite case law to the contrary, see Torres v. Pisano, 116 F.3d 625, 640 (2d Cir.1997), this Court is of the view that the New York Worker's Compensation Law does not bar such a claim, see Chen v. Street Beat Sportswear, Inc., 226 F.Supp.2d 355 (E.D.N.Y.2002).

6. Plaintiffs § 1983 claim

There are two elements necessary to state a claim under 42 U.S.C. § 1983. The first is that plaintiff has been deprived of a federally protected right, and the second is that such deprivation was committed under color of state law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980).

(a) Federally protected right

i) First Amendment

To the extent that the allegations in the complaint can be construed to suggest that plaintiff was punished for the exercise of her First Amendment rights, this claim must fail. The facts pleaded in the complaint do not support a finding that the speech in question (her complaints) was on a matter of public...