Trachtenberg v. Dep't of Educ. of N.Y.

• Decision Date: 03 April 2013
• Docket Number: No. 12 Civ. 7964(PAE).,12 Civ. 7964(PAE).
• Citation: 937 F.Supp.2d 460
• Parties: Carol TRACHTENBERG, Plaintiff, v. The DEPARTMENT OF EDUCATION OF the CITY OF NEW YORK, The City School District of the City of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

937 F.Supp.2d 460

Carol TRACHTENBERG, Plaintiff,

v.The DEPARTMENT OF EDUCATION OF the CITY OF NEW YORK, The City School District of the City of New York, Defendants.

No. 12 Civ. 7964(PAE).

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

April 3, 2013.

Stewart Lee Karlin, Stewart Lee Karlin, Attorney–At–Law, New York, NY, for Plaintiff.

Laura C. Rowntree, New York City Law Department, New York, NY, for Defendants.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge.

Plaintiff Carol Trachtenberg brings this action against the Department of Education of the City of New York and the City School District of the City of New York (the “BOE”),¹ claiming that BOE employees subjected her to disparate treatment and a hostile work environment on account of her age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (“ADEA”). The BOE moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). That motion is granted in part and denied in part.

I. BackgroundA. Factual Background²

Trachtenberg is 65 years old. Am. Compl. ¶ 2. Before her retirement in 2011, she had been employed by the BOE as a teacher—specifically, a speech therapist—for 29 years. Id. ¶¶ 10, 23, 24. She had obtained tenure. Id. ¶ 12. According to Trachtenberg, she had always performed her job in a satisfactory manner and, beforethe 2009–10 school year, had never received an unsatisfactory performance evaluation. Id. ¶¶ 10, 14.

During the 2009–10 and 2010–11 school years, Trachtenberg alleges, she was “subjected to a continuing, deliberate, and intentional pattern of age discrimination.” Id. ¶ 13. The alleged discrimination took several forms. Trachtenberg received unsatisfactory year-end performance reviews for both 2009–10 and 2010–11. Id. ¶ 14. These negative reviews, Trachtenberg alleges, were the product of “biased informal and formal observations” and coincided with “an avalanche of biased letters from the Principal.” Id. ¶¶ 15–18. Trachtenberg claims that these negative reviews typically resulted in collateral consequences, such as teacher removal proceedings and ineligibility for certain types of work. Id. ¶¶ 14, 28.

Trachtenberg also alleges that the school's principal, Katy Rosen, mistreated her. She alleges that the school had a problem with chemicals, such that staff members had been advised to keep their windows open to increase ventilation. Id. ¶ 19. Trachtenberg alleges that, in an effort to harass her and force her to retire, Rosen “deliberately changed [Trachtenberg's] classroom and placed her in a room that had no windows and subject[ed] her to the PCB problem.” Id.³ Rosen also, allegedly, “would frequently stand in the area and stare at [Trachtenberg] in an effort to intimidate [her] and watched over [her] without any feedback whatsoever.” Id. One colleague allegedly told Trachtenberg that Rosen was “out to get [her].” Id. ¶ 25.

Trachtenberg further alleges she “has been bullied and intimidated and her reputation damaged by scurrilous charges such as repeatedly falling asleep, ... lacking social skills, ... being angry and hostile ... not doing work ... not servicing children, ... [and] having time management problems.” Id. ¶ 20. Additionally, someone “forc[ed] teachers to write statement[s] against [Trachtenberg], and humiliate[ed] [her] by publicly scolding her in front of her students and coworkers.” Id. Although the Amended Complaint does not specify who did these things, the Court infers that it thereby refers to Rosen and other administrators.⁴

These allegations, Trachtenberg claims, reflected “a pattern and practice of selecting and targeting the oldest teachers for discipline and negative observations in an attempt to force them to retire.” Id. ¶ 21. Trachtenberg alleges that at least five other teachers were targeted because of their advanced age, whereas at least four younger teachers did not “face the same scrutiny.” Id. ¶¶ 21, 23. On one occasion, Trachtenberg was compared unfavorably to a younger speech teacher, id. ¶ 18; Trachtenberg also allegedly did not receive the same professional training opportunities as younger teachers, id. ¶ 26.

As a result of the actions outlined above, Trachtenberg alleges, she was “compelled to retire (constructively terminated).” Id. ¶ 22.⁵ Had she not retired, Trachtenberg alleges, “teacher removal proceeding [sic] would have commenced.” Id.

B. Procedural History

On December 13, 2011, the U.S. Equal Employment Opportunity Commission (“EEOC”) received a charge of discrimination from Trachtenberg, dated December 9, 2011. Rowntree Decl. Ex. A. On July 20, 2012, the EEOC issued a notice of Trachtenberg's right to sue. Id. Ex. B.

On October 17, 2012, Trachtenberg filed this lawsuit in the Supreme Court of the State of New York, County of New York. Dkt. 1, Ex. A. On October 25, 2012, the BOE removed the action to this Court. Dkt. 1. On December 21, 2012, the BOE moved to dismiss the Complaint. Dkt. 4.

On January 24, 2013, Trachtenberg filed an Amended Complaint. Dkt. 9. On February 14, 2013, the BOE moved to dismiss the Amended Complaint. Dkt. 12 (“BOE Br.”). On March 13, 2013, Trachtenberg opposed that motion. Dkt. 16 (“Pl. Br.”). On March 21, 2013, the BOE replied. Dkt. 17 (“BOE Reply Br.”).

II. Applicable Legal Standard

In resolving a motion to dismiss, the Court must “construe the Complaint liberally, accepting all factual allegations in the Complaint as true, and drawing all reasonable inferences in plaintiff['s] favor.” Galiano v. Fid. Nat'l Title Ins. Co., 684 F.3d 309, 311 (2d Cir.2012). Nevertheless, the “[f]actual allegations must be enough to raise a right of relief above the speculative level,” and the complaint must plead “enough fact [s] to raise a reasonable expectation that discovery will reveal evidence of [plaintiff's claim].” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Put differently, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

Before Twombly and Iqbal, the Supreme Court had held that “under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case” of employment discrimination under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), because “the ordinary rules for assessing the sufficiency of a complaint apply.” Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 508, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); see also id. at 506, 122 S.Ct. 992 (“Moreover, the McDonnell Douglas framework does not apply where, for example, a plaintiff is able to produce direct evidence of discrimination.... It seems incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered [during discovery].” (citations omitted)).

At the time Swierkiewicz was decided, however, the “ordinary rules” were different: The adequacy of pleadings was governed by the no-set-of-facts test articulated in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See Swier kiewicz, 534 U.S. at 512, 514, 122 S.Ct. 992 (citing Conley ). But Twombly and Iqbal have since “retired” the Conley formulation. See Iqbal, 556 U.S. at 670, 129 S.Ct. 1937. Notwithstanding that doctrinal shift, the Supreme Court, in Twombly, reaffirmed its statement from Swierkiewicz that an employment discrimination plaintiff need not establish a prima facie case at the pleading stage. Twombly, 550 U.S. at 570, 127 S.Ct. 1955. As the Supreme Court held in Swierkiewicz, it had been error for the Second Circuit to require the plaintiff to allege facts required to make out a prima facie case at the pleading stage in the absence of direct evidence of discrimination, when direct evidence might be found during discovery. Swierkiewicz, 534 U.S. at 506, 122 S.Ct. 992.

In light of these developments, the Second Circuit has recently stated that “[t]he pleading standard for employment discrimination complaints is somewhat of an open question in our circuit.” Hedges v. Town of Madison, 456 Fed.Appx. 22, 23 (2d Cir.2012) (summary order); see also Jackson v. Cnty. of Rockland, 450 Fed.Appx. 15, 19 (2d Cir.2011) (summary order); Schwab v. Smalls, 435 Fed.Appx. 37, 39–40 (2d Cir.2011) (summary order). Although it has declined to resolve the apparent tension between these precedents, the Second Circuit has suggested that “at a minimum, employment discrimination claims must meet the standard of pleading set forth in Twombly and Iqbal, even if pleading a prima facie case is not required.” Hedges, 456 Fed.Appx. at 23.

Accordingly, although the elements of a prima facie case under McDonnell Douglas need not be established at the pleading stage, these elements nevertheless “provide an outline of what is necessary to render a plaintiff's employment discrimination claims for relief plausible.” Kassman v. KPMG LLP, 925 F.Supp.2d 453, 461, No. 11 Civ. 3743(JMF), 2013 WL 452913, at *4 (S.D.N.Y. Feb. 7, 2013) (quoting Sommersett v. City of N.Y., No. 09 Civ. 5916(LTS)(KNF), 2011 WL 2565301, at *5 (S.D.N.Y. June 28, 2011) (alterations omitted)). Courts therefore consider the McDonnell Douglas elements “in determining whether there is sufficient factual matter in the complaint which, if true, gives Defendant a fair notice of Plaintiff's claim and the grounds on which it rests.” Id. (citation omitted). That is, “[i]n the absence of a facially plausible discrimination claim that gives fair notice to a defendant of the acts that form the basis of the claim, dismissal at the pleading stage is warranted.” Williams v. Addie Mae Collins Cmty. Serv., No. 11 Civ. 2256(...