Reed v. Garden City Union Free Sch. Dist.

• Citation: 987 F.Supp.2d 260
• Decision Date: 16 December 2013
• Docket Number: No. CV 12–4195.,CV 12–4195.
• Parties: Theresa REED, Plaintiff, v. GARDEN CITY UNION FREE SCHOOL DISTRICT, David Perrotta, Nanine Cuttitta, and Kevin Steingruebner, (in Their Official and Individual capacities pursuant to NYEL §§ 290 et seq.), Defendants.
• Court: U.S. District Court — Eastern District of New York

987 F.Supp.2d 260

Theresa REED, Plaintiff,

v.GARDEN CITY UNION FREE SCHOOL DISTRICT, David Perrotta, Nanine Cuttitta, and Kevin Steingruebner, (in Their Official and Individual capacities pursuant to NYEL §§ 290 et seq.), Defendants.

No. CV 12–4195.

United States District Court,

E.D. New York.

Dec. 16, 2013.

Scott Michael Mishkin, P.C., By: Kyle T. Pulis, Esq., Islandia, NY, for Plaintiff.

Sokoloff Stern, LLP, By: Aam I. Kleinberg, Esq., Melissa L. Hotlzer, Esq., Carle Place, NY, for Defendants.

MEMORANDUM AND ORDER

WEXLER, District Judge:

Plaintiff Theresa Reed (“Reed” or “Plaintiff”) brings this action claiming that she was discriminated as s result of her age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., (“ADEA”), 42 U.S.C. § 1983, and the New York State Human Rights Law–New York Executive Law § 290 et seq., (“N.Y. Exec. Law”). Defendants Garden City Union Free School District (“Garden City” or “District”), David Perrotta (“Perrotta”), Nanine Cuttitta (“Cuttitta”), and Kevin Steingruebner (“Steingruebner”) (collectively “Defendants”) move to dismiss Plaintiff's complaint pursuant to Federal Rules of Civil Procedure (“Fed.R.Civ.P.”), Rule 12(b)(6). For the reasons that follow, Defendants' motion is denied in part and granted in part.

BACKGROUND

I. Factual Background

According to the facts alleged in Plaintiff's complaint, Plaintiff, born July 6, 1946, was hired by the Defendant Garden City School District in August 2006 as an indoor hall monitor at the Garden City High School. To take this position, she resigned her position of twelve (12) years as an outside monitor with another school district because she wanted an indoor position. From her first day in September 2006, Plaintiff was assigned to monitor the outdoor parking lot every day, while younger hall monitors were assigned to posts inside the building. She repeatedly complained to Defendant Perotta, who was the Assistant Principal that she was treated differently from the younger hall monitors but was ignored. Plaintiff further alleges that Defendant Perotta was hostile and verbally abusive to Plaintiff on various occasions.

On December 21, 2006, she filed a formal letter of complaint to the then-Acting Principal, Dr. Frank Banta, but nothing in her work assignment changed. In August 2007, she met with Dr. Banta concerning her assignment for the upcoming school year, and was told that despite her complaints, her work assignment would remain the same and she should “Take it or leave it.”

Defendant Cuttitta was hired as the Principal for the 2008–2009 school year. Plaintiff suggested to Cuttitta that all the monitors rotate out to the parking lot. Plaintiff alleges that in response, one younger monitor berated her and subjected her to hostile and abusive language because of her request that all monitors be rotated outside. Plaintiff alleges this was in retaliation for her complaints that she was being treated differently. When Plaintiff complained to Defendant Perotta of the younger worker's treatment of her, nothing was done.

During the 2009–2010 and 2010–2011 school years, Plaintiff was assigned to assist various special needs students her younger co-workers were not assigned to, was denied breaks and overtime opportunities that were not denied to her younger co-workers, and treated differently from her younger co-workers.

On May 12, 2011, Defendant Steingruebner, another Assistant Principal at the school, called Plaintiff into his office stating that a teacher in the building reported hearing Plaintiff say “Fuck you David Perotta” while walking the hallways. Plaintiff denied these allegations, yet Steingruebner failed to investigate or take any other action concerning the accusation, and would not identify the teacher. Steingruebner asked Plaintiff how many years she had left to work and how old she was, to which she answered that she had no plans on retiring.

That weekend, Plaintiff prepared and filed a formal complaint against Steingruebner. The following week, Plaintiff received her first negative performance evaluation. On June 26, 2011, Plaintiff received a letter indicating her that her employment was terminated.

Thereafter, Plaintiff filed a timely notice of claim against the District and a written charge of age discrimination with the Equal Employment Opportunity Commission (“EEOC”). This action was filed within ninety (90) days of receiving a right to sue letter from the EEOC.

II. Plaintiff's Complaint and the Motion to Dismiss

As stated above, Plaintiff claims that Defendants have violated the ADEA by discriminating against Plaintiff due to her age, by retaliating against her for complaining of the discrimination, and by creating a hostile work environment. Plaintiff also claims this discrimination violates equal protection under of 42 U.S.C. § 1983 and New York Exec. Law § 290 et seq.

In their motion to dismiss, Defendants argue that Plaintiff cannot seek recovery under both the ADEA and § 1983, and therefore Plaintiff's claim under § 1983 should be dismissed. Defendants further argue that the individual defendants should be entitled to qualified immunity. Finally, Defendants argue that the N.Y. Exec Law claims fail because the claim against the District is untimely, and the complaint fails to demonstrate that the individual defendants are “employers” subject to liability, or that Defendant Cuttitta “aided and abetted” the alleged discrimination. Defendants do not move against Plaintiff's ADEA claims.

DISCUSSION

I. Standards on Motions to Dismiss

In considering a motion to dismiss made pursuant to Rule 12(b)(6), the court must accept the factual allegations in the complaints as true, and draw all reasonable inferences in favor of plaintiffs. Bold Electric, Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir.1995). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court rejected the standard set forth in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that a complaint should not be dismissed, “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” id. at 45–46, 78 S.Ct. 99. The Supreme Court discarded the “no set of facts” language in favor of the requirement that plaintiff plead enough facts “to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955;see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009). Although heightened factual pleading is not the new standard, Twombly holds that a “formulaic recitation of cause of action's elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1959. Further, a pleading that does nothing more than recite bare legal conclusions is insufficient to “unlock the doors of discovery.” Iqbal, 129 S.Ct. at 1950.

II. The Present MotionA. Plaintiff's 42 U.S.C. § 1983 Claims

1. ADEA Preemption

Defendants argue that the ADEA preempts claims for age discrimination under 42 U.S.C. § 1983, and therefore Plaintiff's § 1983 claims should be dismissed. Both parties recognize that the Second Circuit has not yet ruled on this issue. See Defendants' Memorandum of Law, at 6–7; Defendants' Reply Memorandum of Law, at 4–5; Plaintiff's Memorandum of Law, at 5–7. See also Butts v. NYC Housing Preservation and Development, 307 Fed.Appx. 596, 598, n. 1 (2d Cir.2009) (acknowledging “no opinion of this court” that the ADEA preempts age discrimination claims under the equal protection clause of 42 U.S.C. § 1983); Piccone v. Town of Webster, 511 Fed.Appx. 63, 64, n. 1 (2d Cir.2013) (“It is an open question in our circuit whether the ADEA preempts age discrimination claims under Section 1983.”); Weinstein v. Garden City Union Free School District, 2013 WL 5507153, *20, n. 3 (E.D.N.Y.2013) (Second Circuit has not ruled in favor of preemption and “overwhelmingly” holds that § 1983 claims with ADEA claims are cognizable) (string citation omitted). Nevertheless, Defendants urge the Court to follow the lead of other circuits that have ruled that § 1983 claims are preempted by the comprehensive scheme created by the ADEA. See Defendants' Memorandum of Law, at 6–7; Defendants' Reply Memorandum of Law, at 4–5; citing Zombro v. Baltimore City Police Dept., 868 F.2d 1364, 1367–1369 (4th Cir.1989) (the comprehensive scheme of the ADEA reflects congressional intent to foreclose age discrimination claims under § 1983); other citations omitted.¹

The Second Circuit has consistently found that a plaintiff may bring a claim under § 1983—not to enforce rights conferred only by statute, but for distinct violations of a constitutional right. Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir.2004), citing Gierlinger v. New York State Police, 15 F.3d 32, 34 (2d Cir.1994); see, e.g., Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 143 (2d Cir.1993). See also Weinstein v. Garden City Union Free School District, 2013 WL 5507153, at *20.

The Court is guided by the precedent of the Second Circuit, and rejects Defendants' argument that the § 1983 claim is preempted by Plaintiff's ADEA claim. Plaintiff's complaint alleges that she was treated differently from her younger co-workers in that she was assigned to monitor the outside parking lot, was given different assignments, and denied break and overtime opportunities that were allegedly given to her younger workers. Furthermore, she alleges that when she complained she was being treated differently, she was dismissed by her superiors and harassed by her co-workers. Plaintiff further alleges that she was accused of behaving inappropriately without a proper investigation and was questioned about her age. Finally, she alleges that when she formally complained, she was given a negative performance review for the first time, and ultimately terminated.

The Court notes...