Massaro v. Dep't of Educ. of N.Y., 114214/11, 13273A, 13273.

• Decision Date: 23 October 2014
• Docket Number: 114214/11, 13273A, 13273.
• Citation: 993 N.Y.S.2d 905 (Mem),2014 N.Y. Slip Op. 07270,121 A.D.3d 569
• Parties: Yvonne Hanratty MASSARO, Plaintiff–Appellant, v. The DEPARTMENT OF EDUCATION OF the CITY OF NEW YORK, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 569

993 N.Y.S.2d 905 (Mem)

2014 N.Y. Slip Op. 07270

Yvonne Hanratty MASSARO, Plaintiff–Appellant

v.The DEPARTMENT OF EDUCATION OF the CITY OF NEW YORK, et al., Defendants–Respondents.

114214/11, 13273A, 13273.

Supreme Court, Appellate Division, First Department, New York.

Oct. 23, 2014.

Law Offices of Stewart Lee Karlin, P.C., New York (Stewart Lee Karlin of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondent.

Opinion

Judgment, Supreme Court, New York County (Anil C. Singh, J.), entered August 1, 2013, dismissing the complaint, and bringing up for review an order, same court and Justice, entered May 10, 2013, which granted defendants' motion to dismiss the second amended complaint, unanimously affirmed, without costs. Appeal from aforesaid order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Supreme Court correctly determined that plaintiff has no viable retaliation claim. Plaintiff's prior lawsuit against defendant the Department of Education and her statements to the media in 2010 do not constitute protected speech under the First Amendment or article I, §§ 8 and 9 of the New York Constitution, as they primarily concern personal grievances, rather than matters of public concern (Ruotolo v. City of New York, 514 F.3d 184, 188 [2d Cir.2008] ). Further, plaintiff does not allege that her single “U” rating, unaccompanied by any material negative employment consequences, would “deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights” (Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225 [2d Cir.2006], cert. denied 549 U.S. 1342, 127 S.Ct. 2062, 167 L.Ed.2d 769 [2007] [internal quotation marks omitted] ). In addition, plaintiff's allegations regarding causation are conclusory (cf. Morris v. Lindau, 196 F.3d 102, 110–111 [2d Cir.1999] ), and there is insufficient temporal proximity between the speech and the supposedly adverse action so as to create an inference of causation (see Clark County School Dist. v. Breeden, 532 U.S. 268, 273–274, 121 S.Ct. 1508, 149 L.Ed.2d 509 [2001] [per curiam] ).

Plaintiff failed to adequately plead discriminatory animus, which is fatal to both her age discrimination and hostile work environment claims under the State and City Human Rights Laws (HRL) (Executive Law § 290 et seq.; Administrative Code of City of N.Y. § 8–101 et seq. ). Indeed, her allegations that she was 51 years old and was treated less well than younger teachers are insufficient to support her claims (see Askin v. Department of Educ. of the City of N.Y., 110 A.D.3d 621, 622, 973 N.Y.S.2d 629...