Rubin v. N.Y.C. Bd. of Educ.
| Decision Date | 06 January 2023 |
| Docket Number | 20-CV-10208 (LGS) (KHP) |
| Parties | LISE RUBIN, Plaintiff, v. NEW YORK CITY BOARD OF EDUCATION, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION ON MOTION TO DISMISS
Before the Court for a Report and Recommendation is Defendants' Motion to Dismiss the Second Amended Complaint (“SAC”).[1] The SAC names the following entities and individuals as Defendants: The New York City Board of Education (“BOE”);[2] The Special Commissioner of Investigation for the New York City School District (“SCI”) (collectively, the “Municipal Defendants); Susan Epstein, Director of Compliance and Contracts at the DOE Office of Related Services (“ORS”); Michael van Biema, Executive Director at ORS; Alexis Lantzounis, DOE's Supervisor of Occupational Therapy (“OT”) for Manhattan District 3; Katherine Witzke, Principal of P.S. M009 Sarah Anderson School (“PS 9”); Geraldine A. Cullen, teacher at PS 9; Anastasia Coleman, Special Commissioner at SCI; Daniel Schlachet, First Deputy Commissioner at SCI; Ilene Lees Director of the DOE's Office of Special Investigations (“OSI”); Henry Bluestone Smith, former Chief of Staff at the DOE's Office of General Counsel (“OGC”); Joseph A. Baranello, Deputy Counsel and Chief Privacy Officer at OGC; Julia Busetti, OGC Agency Attorney; and Katherine G. Rodi, Executive Director at DOE's Office of Employee Relations (collectively, “Individual Defendants”).[3]
The SAC alleges violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq; Titles II and V of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; Sections 504 and 505(a)(2) of the Rehabilitation Act of 1974 (“Rehabilitation Act”), 29 U.S.C. § 794; New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296 et seq.; New York City Human Rights Law (“NYCHRL”), N.Y.C. Administrative Code § 8-101 et seq; the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.; the New York State Labor Law (“NYLL”) §§ 740, 741, and 215 and Art. 19, § 650 et seq.; and New York State Civil Service Law (“CSL”) § 75-b. It also asserts state common law claims for defamation and fraud.
Defendants moved to dismiss the SAC in its entirety pursuant to Federal Rules of Civil Procedure 8(a), 12(b)(5), and 12(b)(6). For the reasons stated below, I respectfully recommend the Motion to Dismiss be GRANTED.
Plaintiff Lise Rubin (“Plaintiff”) is an occupational therapist and special educator. (SAC ¶ 13.) From 2012 to 2018, Plaintiff worked as an “Independent Provider” for the DOE. Through this arrangement, Plaintiff provided OT services to special needs students at various public and private schools in New York City. (Id. ¶¶ 12, 17, 239.) Plaintiff worked under Related Services Agreements (“RSAs”), which are vouchers issued by the DOE that allow parents of special needs students to select a qualified Independent Provider to provide services to the child at no cost to the parent. (Id. ¶¶ 27, 345.) The DOE contracts with vendors pursuant to Related Services Contracts, and the vendors supply the Independent Providers. (Id. ¶ 1506.)
Schools seeking the services of an Independent Provider may refer to a registry of qualified providers maintained by the ORS. (Id. ¶ 1493.) Providers who wish to appear on this registry must apply for eligibility to work with RSAs or vendors, and this requires, among other things, obtaining security clearance through “PETS.” (Id. ¶¶ 1502-04.) At some point during or prior to 2012, Plaintiff was placed on the registry. She was then selected from the registry on separate occasions to work as a provider at schools during the period from 2012 to 2018. As discussed below, Plaintiff's services were terminated in 2018.
During the time Plaintiff worked as an Independent Provider for the DOE, she was classified as an independent contractor. Plaintiff alleges she should have instead been classified as an employee based on the high degree of control the DOE maintained over her work. (Id. ¶¶ 20-28, 342.) In particular, Plaintiff alleges that Defendant Lantzounis, the school district's OT Supervisor, micromanaged her work, including by preventing her from providing services after school hours. (Id. ¶¶ 476, 966.) Plaintiff alleges that by virtue of being misclassified as an independent contractor, she was denied numerous rights, including the rights to join a union, file a grievance, and receive overtime pay and other benefits granted to employees. (Id. ¶¶ 267-68; 274-83.)
As a result of Plaintiff's alleged misclassification as an independent contractor and the DOE's failure to provide her with adequate pay and benefits, the SAC alleges that all Defendants violated Plaintiff's rights under the FLSA and the NYLL minimum wage law.
In 2014, Plaintiff was providing services at Public School M293, City College Academy of the Arts (“M293”). In August 2014, Plaintiff advocated on behalf of students with disabilities by making a formal complaint against M293 to the New York State Education Department (“NYSED”) regarding the provision of special education services at ¶ 293 (“2014 NYSED Complaint”). (Id. ¶¶ 471-72.) Shortly thereafter, in retaliation for Plaintiff's advocacy, DOE staff made formal complaints against Plaintiff. (Id.) The complaints resulted in Plaintiff receiving what the SAC refers to as a “problem code” on her record, which impacted how or whether she appeared on the ORS registry, and Plaintiff was required to reapply for security clearance from PETS. (Id. ¶¶ 1504-05.)
The SAC asserts that this problematic coding of Plaintiff constituted retaliation for her advocacy on behalf of students with disabilities in violation of the ADA, the Rehabilitation Act, NYSHRL, and NYCHRL. Plaintiff also contends the retaliation violated Title VII.
On November 17, 2017, Plaintiff began working as an Independent Provider at ¶ 9. (Id. ¶¶ 437-40.) While at ¶ 9, Plaintiff was required to spend numerous hours on uncompensated tasks, including coordinating Medicaid Physician Compliance Visits and screening students to determine whether they needed OT services. (Id. ¶¶ 284-87, 452, 489-95, 547-87, 891, 899.) Plaintiff also was not compensated for the time she spent “start[ing] the OT program” at ¶ 9 “from the bottom up.” (Id. ¶ 946.) Instead, Plaintiff only received pay for time spent providing direct OT services to students. (Id. ¶ 898.) Plaintiff also alleges that her hourly rate had not been raised since at least 2012, and therefore she was underpaid. (Id. ¶ 270.)
Additionally, Plaintiff alleges that the environment at ¶ 9 was “hostile” as retaliation for her advocacy on behalf of students. She contends her supervisors, Defendants Lantzounis and Witzke, created this hostile work environment by requiring her to work on uncompensated tasks, to work with more students than Plaintiff's capacity allowed, and to adopt certain “substandard and illegal practices” in her work with the students, such as treating students in groups and modifying students' Individualized Education Programs (“IEPs”). (Id. ¶¶ 476, 626-28, 632-58, 929-37, 992-93.) While not entirely clear from the SAC, Plaintiff may be contending that this conduct was retaliation for the 2014 NYSED Complaint or other NYSED complaints she filed in October 2014 and January 2015 in connection with her work at another school.
Although the Court understands these allegations to be part of the alleged retaliation in violation of the ADA, the Rehabilitation Act, NYSHRL, and NYCHRL, Plaintiff also mentions that this hostile work environment violated Title VII and that Defendants violated the FLSA and the NYLL by underpaying her for work performed and/or requiring her to perform tasks for which she received no compensation.
On June 21, 2018, Plaintiff gave her PS 9 students a letter for their parents (“2018 Letter”). (Id. ¶ 38.) The 2018 Letter stated that because there had been a late start in acquiring OT services at ¶ 9 that year, students were eligible for “Compensatory Services,” and although the school year was ending, Plaintiff was “available to make home visits for sessions” during the summer. (SAC Exh. 2, ECF No. 180-2.) The letter advised parents on how to obtain RSA vouchers that would enable them to use Plaintiff's services during the summer. (Id.) The SAC asserts that in handing out this letter, Plaintiff was advocating on behalf of disabled students by ensuring they were aware of the services available to them, and that she was opposing the DOE's practice of not informing parents of their children's rights to obtain compensatory services.
Defendant Cullen, a teacher at ¶ 9, observed Plaintiff placing the 2018 Letter in students' backpacks and reported the incident to Defendant Witzke. (SAC ¶¶ 165, 167 190.) On June 22, 2018, Defendant Witzke reported the incident to OSI, which is DOE's internal investigative unit, and to SCI, which is an independent agency that acts as a watchdog for the New York City School District. (Id. ¶¶ 777, 783-88, 1662, 1309.) That same day, DOE removed Plaintiff's security clearance, removed Plaintiff from the ORS registry, and placed a problem code on her record. (Id. ¶¶ 38, 189, 302-04.) The problem code was entered by Defendant Rodi. (Id. ¶ 1115.) These actions effectively terminated Plaintiff's services. (Id. ¶¶ 311, 315.) The DOE refused to tell Plaintiff why it had taken these...
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