Safyan v. The Dep't of Educ. of N.Y.
| Docket Number | Index No. 500312/2023,Motion Seq. Nos. 1,2 |
| Decision Date | 08 September 2023 |
| Parties | DIANA SAFYAN, Plaintiff, v. THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK AND THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Defendants. |
| Court | New York Supreme Court |
1
2023 NY Slip Op 33176(U)
DIANA SAFYAN, Plaintiff,
v.
THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK AND THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Defendants.
Index No. 500312/2023, Motion Seq. Nos. 1, 2
Supreme Court, Kings County
September 8, 2023
Unpublished Opinion
PRESENT: HON. GINA ABADI, J.S.C.
DECISION/ORDER
HON. GINA ABADI, J.S.C.
Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of these motions:
Papers NYSCEF Numbered Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed............................. 4-12; 20-22, 24-26
Opposing Affidavits (Affirmations) Annexed....................... 17-18; 27
Reply Affidavits (Affirmations).................................. 19; 28
Other....................................................... .....
Upon the foregoing cited papers and after oral argument, the Decision/Order on these motions is as follows:
In Seq. No. 1, defendants The Department of Education of The City of New York and The Board of Education of The City School District of The City of New York (collectively, "defendant") move, pre-answer, for an order, pursuant to CPLR § 3211 (a) (1), (a) (7), and, in effect, (a) (5), dismissing, with prejudice, the original complaint of
plaintiff Diana Safyan ("plaintiff'), dated January 4, 2023 (the "original complaint") (NYSCEF Doc. No. 1).
In Seq. No. 2, plaintiff moves, by amended notice of motion, dated June 21, 2023 (NYSCEF Doc. No. 24), for leave, pursuant to CPLR § 3025(b), to file and serve her corrected proposed amended complaint, dated June 15, 2023 (the "proposed amended complaint" or "PAC") (NYSCEF Doc. No. 26).
Facts and Allegations [1]
Plaintiff is Caucasian of Ukrainian-Jewish heritage (PAC, ¶ 4). She has been a licensed mental health counselor since 2006,[2] with a Master of Business Administration degree from Touro College and a Master of Arts in Psychology degree from St John's University (¶ 5). In November 2003, plaintiff started her employment with defendant as a school psychologist at the district level (¶ 6). From 2012 to present, plaintiff has been working for defendant either as an Administrator of Special Education or as an Educational Administrator (collectively, an "EA") (¶¶ 6, 10). Since July 2015, plaintiff has been stationed at the Queens South Borough Office located at 82-01 Rockaway Boulevard in Ozone Park, New York (the "Queens South BO") (¶¶ 6-7). Part of her job responsibilities were to visit schools covered by the Queens South BO to ensure that the Special Education Students in those schools were receiving their services (¶ 7). "Plaintiffs work has been
exemplary and she had only satisfactory ratings until 2015" (¶ 8). Plaintiff is a union member of the Council of School Supervisors and Administrators (the "union").
September 2015 - December 2016
Beginning in September 2015, plaintiff was the only Caucasian EA of Ukrainian-Jewish heritage of the total of seven-to-eight EAs assigned to the Queens South BO (¶ 10). Seven of the EAs assigned to the Queens South BO were African Americans (¶¶ 11, 46, 49, 53, 57,67, 79, 96, 100). In October 2015, Michelle Singleton ("Singleton") (an African American) became plaintiffs supervisor at the Queens South BO (¶ 12). In addition to plaintiff, Singleton supervised other EAs at the Queens South BO, including the seven specifically named African American EAs (¶¶ 10-11, 46, 49).[3] Singleton reported to I Marlene Wilks ("Wilks") (also an African American), an executive at the Queens South BO (¶¶ 12, 28). "Wilks supervised employees such as [p]laintiff[,] and the majority were African American employees (approximately 85 percent)" (¶ 28).
By November 2015, Wilks instructed Singleton "to call in an investigation against [p]laintiff and [Wilks] called in one as well. This was ... done in retaliation for [p]laintiff s [unspecified] complaints" (¶ 12). The investigation was "frivolous" (¶ 13). It appears that Singleton and Wilks's alleged focus of investigation was on plaintiffs time-keeping practices. "Beginning [at the] end of 2015 [and continuing] into [the] end of 2016, . . . Singleton continuously called other EA[s]... to find out plaintiffs whereabouts and asked questions about when she arrived and left certain locations" (¶ 15). Next, plaintiff "was
asked to show proof that she had consistently taken those days off in previous years ... in order to take her traditional Jewish Holidays from work[,] such as the Sukkot" (¶ 16). Sometime between November 2015 and December 2016, plaintiff "received a letter to file for [her] alleged misconduct, [which was] the improper keeping of [her] time records" (¶ 17). "As a result, [p]laintiff was given a timecard that she had to always carry and punch in at every location" (¶ 17). In September 2016, she attended a disciplinary, time-keeping meeting with Singleton to discuss her September 2016 time sheet (¶ 19). In contrast to plaintiff, however, none of the seven African American EAs at the Queens South BO had "their attendance and arrival times ... supervised" (¶ 22). What's more, "Wilks improperly recorded [p]laintiff [s] time" (¶ 28). "Plaintiff was being spied on by other staff members and they were asked [albeit, unclear by whom] to record her time of arrival" (¶ 29). "Plaintiffs file was papered [again, unclear by whom] with improper time sheets" (¶ 29).
Starting in September 2016, plaintiff lodged a number of complaints. On September 22, 2016, plaintiff complained of religious discrimination, apparently to the Office of Equal Opportunity & Diversity Management ("OEO") (¶ 18). Three days later on September 25, 2016, she followed up her religious-discrimination complaint by letter to the Deputy Chancellor's Office to the same effect (¶ 19). Sometime thereafter (but unclear when), she filed a complaint with the Special Commissioner of Investigation for the New York City School District ("SCI")[4] "challenging the bad faith investigation against
her" (¶ 20). Although "the SCI ruled in [p]laintiff s favor," the SCI's ruling had no practical effect (¶ 20) on the continuation of "a biased investigation against her" (¶ 29).
The work-related stress allegedly harmed plaintiffs mental and physical health, By January 2016, she saw a medical provider (in an unspecified medical field) for work-related stress (¶ 14). At some time unspecified in the PAC, plaintiff started seeing separately a psychiatrist, a psychotherapist, and a neurologist (¶ 14). She was prescribed several medications, including a muscle relaxant and a medication for migraine/cervical headaches (¶ 14). Nothing in the PAC indicates that plaintiff communicated to defendant (or that defendant otherwise should have known) about her mental/physical problems and/or her treatment.
In December 2016, plaintiff was assigned to work in a "rubber room" (¶¶ 13, 21, 23).[5] The reasons for the investigation and the underlying allegations are not disclosed in the PAC.
December 2016 -August 2018
While plaintiffs work was confined to the rubber room, Singleton remained her outside supervisor (¶ 26). In the course of plaintiffs work-confinement to the rubber room, Singleton placed a letter to plaintiffs file as a discipline for apparently a single instance of misconduct within the school district of the City of New York" (Matter of Watkins v New York City Dept of Educ., 2016 WL 8466655 [Sup Ct, NY County 2016]).
plaintiffs arrival at the rubber room "at a time that could be perceived [as] a minute late" (¶ 26).
As the only EA assigned to the rubber room, plaintiff was required to scan in upon her arrival and departure (¶ 27). "Plaintiff received timekeeping information and approval from the Director of the Re-[A]ssignment office[,] which stated that she [was] allowed to flex her time [i.e., to alter the starting and/or end time of her workday] throughout the week" (¶ 27). For reasons that are unexplained in the PAC, however, "[p]laintiff s time was not properly recorded, and her timekeeping [was] not . . . resolved" (¶ 27). "During 2017 and 2018 .. . [plaintiff] continued to be subjected to frivolous investigations [albeit unclear by whom] about her time[keeping][,] which was never properly recorded on purpose" (¶ 30).
At some point unspecified in the PAC, plaintiff asked her union to update her on the status of the then-pending investigation against her. She was informed (unclear by whom) that "the statute of limitations [underlying the investigation of her] had expired" (¶ 31). Defendant, thus, "had no choice [but] to assign [her] to a Central Borough Office" (¶ 31), which was located in the Bay Ridge section of Brooklyn, New York (the "Bay Ridge BO") (¶ 32).
August 2018 - September 2019
Upon her return to the active workforce, plaintiff was assigned to the Bay Ridge BO from August 2018 to January 2019 (¶ 32). During that period, she continued to report to Singleton (¶ 32). Although plaintiff had a different time schedule (and was working late)
at the Bay Ridge BO, Singleton held disciplinary meetings with plaintiff "about [the latter's] improperly recorded time" (¶ 32) and "to discuss her time sheets" (¶ 33).
During plaintiffs stay with the Bay Ridge BO, defendant's Office of Special Investigations ("OSI") commenced an investigation, the subject of which is not described in the PAC, but which apparently concerned plaintiff (¶ 34). Ultimately (but unclear when), the OSI investigation found the underlying allegations to have been "unsubstantiated" (¶ 34).
On January 14, 2019, plaintiff was reassigned to her original place of work - the Queens South BO (¶ 35). On plaintiffs first workday at the Queens South BO, she "received an email from . . . Wilks on time and attendance[] alleging that [p]laintiff had arrived late and took too much time to return to the [Queens South BO] office...
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