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Pinkard v NYC DOE, United Federation of Teachers (2012) Federal Complaint
Below is the decision in the case Eugenia Pinkard v United Federation for Teachers, filed in 2012 in Federal Court. The case was dismissed because Ms. Pinkard sued on the basis of age and sex, instead of on the basis of race or color.
EUGENIA
PINKARD, Plaintiff, - against - NEW YORK CITY DEPARTMENT OF EDUCATION, UNITED FEDERATION OF TEACHERS, and ERIC CHEN,
Defendants.
11 Civ. 5540 (FM) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 2012 U.S. Dist. LEXIS 64207 May 2, 2012, Decided May 2, 2012, Filed
CASE
SUMMARY
CORE TERMS: retaliation,
discrimination claims, termination, administrative remedies, terminated,
grievance, color, discontinuance, discriminatory, secretary, exhaust, nysut,
reinstated, fair representation, conclusory, disability, sex, email, pro se,
time barred, subject matter jurisdiction, national origin, protected
activity, untimely, notice, woman, superintendent, probationary, employment
discrimination, exercise of jurisdiction
LexisNexis® Headnotes Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss Evidence > Procedural Considerations > Burdens of Proof > Preponderance of Evidence
Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss
Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims Civil Procedure > Parties > Self-Representation > Pleading Standards Evidence > Judicial Notice > General Overview
Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > Coverage & Definitions > General Overview
Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims Civil Procedure > Pleading & Practice > Pleadings > Complaints > Requirements Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof
Labor & Employment Law > Discrimination > Retaliation > Burdens of Proof Labor & Employment Law > Discrimination > Retaliation > Elements > General Overview Labor & Employment Law > Discrimination > Retaliation > Statutory Application > Title VII of the Civil Rights Act of 1964 > General Overview
Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > Coverage & Definitions > Labor Organizations
Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss Labor & Employment Law > U.S. Equal Employment Opportunity Commission > Exhaustion of Remedies > General Overview
Labor & Employment Law > U.S. Equal Employment Opportunity Commission > Exhaustion of Remedies > Filing of Charges
COUNSEL: [*1] Eugenia Pinkard, Plaintiff, Pro se, Brooklyn, NY. For NYC Department of Education, Defendant: Asad Rizvi, LEAD ATTORNEY, New York City Law Department, New York, NY. For UFT, Defendant: Stuart Lloyd Lichten, Lichten & Bright, P.C., New York, NY. JUDGES: FRANK MAAS, United States Magistrate Judge. OPINION BY: FRANK MAAS OPINION
DECISION
AND ORDER
FRANK
MAAS,
United States Magistrate Judge.
In this employment
discrimination action, pro se plaintiff Eugenia Pinkard
("Pinkard"), an African-American woman, contends that the New York
City Department of Education ("DOE") unlawfully terminated her
employment as a school secretary because of her race. Pinkard further
contends that her union, the United Federation of Teachers ("UFT"),
and her UFT attorney, Eric Chen ("Chen"), unlawfully discriminated
against her. In her complaint, (ECF No. 2 ("Compl." or
"Complaint")), Pinkard expressly seeks relief only under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title
VII"). The parties have consented to my exercise of jurisdiction over
this case for all purposes pursuant to 28 U.S.C. § 636(c). (ECF
No. 15).
The DOE, UFT, and
Chen (collectively, the "Defendants") have moved to dismiss the Complaint
pursuant to [*2] Rules 12(b)(1) and12(b)(6) of the Federal Rules of
Civil Procedure. (ECF Nos. 22, 33). For the following reasons, the
Defendants' motions are granted and the Complaint is dismissed.
I.
Background
A.
Facts
Unless otherwise
indicated, the following facts are either undisputed or set forth in the
light most favorable to Pinkard.
In September 2004,
Pinkard began working as a school secretary at the High School for Civil
Rights in Brooklyn. (ECF No. 39 ("Pl.'s Opp'n") Ex. 9). In October
2004, Pinkard was involved in an altercation instigated by a school aide. The
school's principal concluded, however, that Pinkard's behavior
"constitute[d] insubordination" and placed a letter to that effect
in Pinkard's file. (Id. Ex. 4 at 3). At the conclusion of the school year, the
principal recommended that the DOE discontinue Pinkard's probationary
service. (Id. at 2). Thereafter, on June 23, 2005, the Local Instructional
Superintendent ("LIS") acted upon that recommendation by denying
Pinkard a certification that she had completed her probationary period.
Pinkard's employment consequently was terminated effective August 29, 2005.
(Id. Ex. 5 at 1).
On June 29, 2006,
Pinkard went to the office of LIS Varleton [*3] McDonald
("McDonald"), the successor to the LIS who had terminated Pinkard.
(Pl.'s Opp'n at 4). Although that day was his last as the school's LIS,
McDonald issued a letter reversing the discontinuance and instructing Pinkard
to report to the Regional Operation Center ("ROC") for assignment.
(Id. Ex. 6). Pinkard subsequently went to the ROC, where she presented the
letter from McDonald, but was not given an assignment. (Id. at 4). Pinkard
later learned that the ROC administrator with whom she spoke thought that
McDonald was no longer an LIS at the time he issued the letter, rendering it
ineffective. (Id.; see also id. Ex. 7 (email suggesting "McDonald was
not the LIS of record on the date he affixed his signature to [his June 29
letter])).
On December 11,
2006, Pinkard filed a grievance with the DOE. In that grievance, Pinkard
stated that:
(1)
My discontinuance dated 7/23/05 [actually 6/23/05] was overturned by the
superintendent on 6/29/06. I am asking for compensation for the time I was
out of work and to be made whole in all ways. (2) I am owed 20 peak load
hours from June 2005.
The above is in violation of Articles
3, 7 and 15 of the Agreement. As a remedy, I request to be made whole [*4] by
being paid monies owed to me in addition to 6% interest pursuant to State
law.
(Id.
Ex. 5 at 2).
On January 10,
2007, the District held a hearing to consider Pinkard's grievance, at which
Pinkard evidently was represented by a UFT representative. (Pl.'s Opp'n at 4
& Ex. 5 at 3). Thereafter, in May 2008, Pinkard contacted the UFT because
she had not received a decision regarding her grievance. (Id. Ex. 12). The
UFT subsequently arranged for Chen, an attorney with the New York State
United Teachers ("NYSUT"), to represent Pinkard.1 Chen then contacted
McDonald, who confirmed that he was, in fact, still a LIS when he wrote the
letter reversing Pinkard's discontinuance. (Id. Exs. 1 at 1, 11 ("Pl.'s
Art. 78 Mem.") at 4). On September 8, 2008, Chen filed an Article 78
petition on Pinkard's behalf in Supreme Court, New York County, which
contended that the DOE had "failed to perform a ministerial act required
by law" by not reversing the discontinuance of Pinkard's employment.
(See Pl.'s Art 78 Mem. at 1).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
1 The
NYSUT is a federation of 1,200 unions, the largest of which is the UFT. See http://www.nysut.org/cps/rde/xchg/nysut/hs.xsl/about.htm (last
visited on Apr. 24, 2012).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
At some point after [*5] Chen
filed the Article 78 petition, the DOE proposed a settlement, pursuant to
which Pinkard would receive back pay in the amount of $91,067 and be
reinstated as a school secretary at the highest pay scale contractually
permissible for her position. (See Pl.'s Opp'n Ex. 1 (emails between Pickard
and Chen discussing settlement offer)). Chen conveyed the offer to Pinkard,
who rejected it because, among other things, she wanted the DOE to restore
her to her position with tenure, pay her at an even higher rate, and add
interest to the amount she recovered. (Id.; see Compl. at 11).
On March 26, 2009,
the DOE hand delivered a letter to Pinkard instructing her "to report to
the Brooklyn Integrated Service Center for an assignment in order to be
reinstated to the position of School Secretary." (Pl.'s Opp'n Ex. 3).
The letter further instructed Pinkard to "go to 65 Court Street to . . .
pick up your check for back pay." (Id.). Pinkard then sent Chen an email
informing him of the letter and requesting guidance. Specifically, Pinkard
wanted to know (1) why she was told to pick up a check when she had not
signed any settlement papers, (2) whether she would receive a separate check
for "per session" [*6] pay
and other back pay to which she believed she was entitled, and (3) whether a
decision ever had been issued regarding her grievance. (Compl. at 50).
Chen replied to
Pinkard's email the same day, informing her that:
It appears that
rather than asking you to settle or sign anything, the DOE has unilaterally
reinstated you to work and is just going to pay you the same money you were
offered before. . . . They are arguing that since you are being offered back
pay and your job back, that you have been given everything you seek and there
is nothing left to ask the Court. But I don't see anything in the papers
regarding the per session money, or the money you would have received since
February.
(Id.
at 49).
Chen further
advised Pinkard to report for her work assignment as instructed in the letter
because he feared that, if she failed to do so, the DOE would argue that she
had refused to return to work and thus had abandoned her position. (Id.).
Chen also recommended that Pinkard retrieve and deposit the check because
"it may not be available to [her] later." (Id.).
Pinkard emailed
Chen that evening, stating that:
I still want to
make it clear that I want to proceed with the lawsuit[] if they [*7] are not going to reinstate me wholly.
I want to be reinstated wholly, I am not settling. If [] taking this money
and returning to work is settling, I don't want it.
(Pl.'s
Opp'n Ex. 2). The next day, Chen sent Pinkard an email stating, "I don't
believe taking the money and returning to work would be settling."
(Id.).
On or about March
27, 2009, Pinkard picked up a check in the amount of $91,067.88 and reported
to work. (Id. at 5). Instead of being assigned to a permanent position,
however, Pinkard was sent to a "[r]ubber room," where, according to
Pinkard, "people are sent for further investigation."2 (Id. at 3).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
2 "[R]ubber
rooms, [also] known as reassignment centers," were notorious facilities
where school employees accused of incompetence or misconduct would "show
up every school day, sometimes for years, doing no work and drawing full
salaries." Jennifer Medina, Deal Reached to Fix Teacher Discipline
Process, N.Y. Times, Apr. 17, 2010, at Al. The UFT and City of New York
agreed to discontinue the use of rubber rooms in the fall of 2010. Id.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Thereafter, on
August 25, 2009, Justice Marcy S. Friedman granted a motion to dismiss
Pinkard's Article 78 petition as moot since Pinkard had been [*8] reinstated
to her position as a school secretary and awarded back pay. See Pinkard v.
Bd. of Ed. of the City Sch. Dist. of the City of N.Y., Index No. 112198 (Sup.
Ct. N.Y. County), Order dated Aug. 25, 2009. Although Pinkard opposed the
motion, Justice Friedman found that it was "unclear why [Pinkard]
contend[ed] that the amount of back pay was insufficient."3 Id. Justice
Friedman therefore dismissed the petition "without prejudice to proper
proceedings if still timely." Id.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
3 In
her opposition brief, Pinkard maintained that she was entitled to an
additional $13,209.12 in back pay and should have been reinstated at a higher
pay rate. (See Pl.'s Opp'n Ex. 11 (Chen Affirm, in Opp'n to Resp'ts'
Cross-Mot. to Dismiss)).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
On March 5, 2009,
while her Article 78 petition was pending, Pinkard filed an "improper
practice charge" with the New York Public Employment Relations Board
("PERB"). See In re Pinkard, No. U-28996, 43 P.E.R.B. ¶ 4623 (Dec.
21, 2010), available at 2010 WL 6771342. In that charge, Pinkard alleged that
the UFT had violated "§ 209-a.2(c) of the Public
Employees' Fair Employment Act . . . [because] the
UFT attorney representing Pinkard did not advise her why a decision following [*9] her
grievance hearing had not been rendered." Id. By order dated December
21, 2010, after a hearing at which both Pinkard and Chen testified and the
submission of post-hearing briefs, PERB found that Pinkard failed to
establish that the UFT "acted arbitrarily, discriminatorily or in bad
faith in representing [her]." Id. PERB also declined to address
additional claims that were either untimely or raised for the first time in
Pinkard's post-hearing brief. Id.
Pinkard was
terminated again following the 2009-2010 school year. On August 16, 2010, the
Superintendent of Brooklyn High Schools affirmed Pinkard's
"Discontinuance of Probationary Service and Termination of
License." (Pl.'s Opp'n Ex. 9 at 1). Following a hearing on January 5,
2011, before the Office of Appeals and Review, the District Superintendent
reaffirmed Pinkard's discontinuance on February 7, 2011. (Id. at 3-4).
Pinkard contends
that her second termination was in retaliation "for standing up to [her]
Union, the New York City Department of Education and NYSUT." (Pl.'s
Opp'n at 2). Specifically, Pinkard alleges that the UFT failed to vindicate
her rights in retaliation for Pinkard having filed a charge with PERB.
Pinkard further [*10] maintains
that the discontinuance of her probationary service was impermissible because
her reinstatement should have resulted in her obtaining tenure, thereby
causing her to be a non-probationary employee. (See id. at 5).
Although Pinkard
brings this action pursuant to Title VII, the only reference to racial
discrimination is found in the statement of facts section of her form
Complaint, in which she states:
I was terminated by
the [DOE] for being insubordinate to a school aide in 2005. The union never
filed any charges against the [DOE]. When the union finally assigned me an
attorney[,] the attorney coer[c]ed me into taking monies[,] which was not in
my best interest regarding my case. I feel because I am a black woman neither
of my representatives handled my case properly.
(Compl.
at 3). The Complaint also mentions "wages [] being withheld as
retaliation," but does not elaborate on that claim. (Id.).
B.
Procedural History
After Pinkard filed
a charge with the federal Equal Employment Opportunity Commission
("EEOC") on April 14, 2011 (see ECF No. 37 (Decl. of Ass't Corp.
Counsel Asad Rizvi, dated Nov. 28, 2011 ("Rizvi Decl."), Ex. C)),
the EEOC issued her three right-to-sue letters on [*11] May
11, 2011, authorizing her to sue the DOE, UFT, and NYSUT (see Compl. at 5-7).
Pinkard then commenced this suit in forma pauperis on July 29. 2011. (ECF.
Nos. 1, 2). On November 3, 2011, the parties consented to my exercise of
jurisdiction over this case for all purposes pursuant to 28 U.S.C. § 636(c). (ECF
No. 15).
On November 7,
2011, the Court ordered that the Complaint and caption be deemed amended to
add Chen as an individual defendant. (See ECF No. 14) On November 17,
2011, Pinkard apparently served the DOE with an amended complaint. (See EFC
No. 25 ("Am. Compl." or "Amended Complaint"); DOE Mem.
Ex. B). It is unclear whether the Amended Complaint ever was served on the
UFT or Chen. The only difference between the Complaint and the Amended
Complaint is the inclusion of the following underlined words in the statement
of facts:
Originally I was
terminated for being insubordinate to a school aide in 2005. The union never
filed any charges against the [DOE]. The union finally assigned me an
attorney. The attorney coer[c]ed me intl taking monies[,] which was not in my
best interest regarding my case. I feel because I am a black woman and
secretary neither of my representatives [*12] handled
my case properly[,] which resulted in me being terminated again Aug[ust]
2011.
(Am.
Compl. at 3). The Court need not decide whether
Pinkard properly served and filed the Amended Complaint because, even if she
did, it would be subject to dismissal for the reasons set forth below.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
4 The
original Complaint listed "NYC Dept of Ed Attorney" in the caption,
but referred to an unnamed union attorney in the statement of facts. (See
Compl. at 1, 3). The November 7 order incorrectly spelled Chen's last name as
"Chin." (See ECF No. 36 ("DOE Mem.") at 3 n.1). The
Complaint and caption therefore are deemed amended again to reflect the
correct spelling of Chen's last name.5 Pinkard
has the date wrong. Her second termination took place on August 16, 2010, and
was effective that day.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
On November 22,
2011, the UFT filed a motion to dismiss, and, on November 29, 2011, the DOE
did the same. (ECF Nos. 22, 33). Pinkard filed her opposition to both motions
on December 27, 2011, (ECF No. 38), after which the DOE filed a reply on
January 6, 2012 (ECF No. 39). The motions therefore are fully submitted.
II.
Discussion
A.
Standard of Review
1. Rule 12(b)(1)
HN1Under Rule 12(b)(1), a
complaint must be dismissed [*13] if
a court lacks subject matter jurisdiction over the action. In deciding a Rule 12(b)(1) motion, a court is
not limited to the face of the complaint and may consider evidence outside
the pleadings to resolve disputed factual issues. State Emp. Bargaining Agent Coal.
v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007); Phifer v. City of N.Y., 289 F.3d
49, 55 (2d Cir. 2002). The plaintiff has the burden of proving by
a preponderance of the evidence that subject matter jurisdiction exists. Phifer, 289 F.3d at 55 (citing Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000)).
HN2When
faced with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6), a court should
"decide the 'jurisdictional question [under Rule 12(b)(1)] first
because a disposition of a Rule 12(b)(6) motion is a
decision on the merits, and therefore, an exercise of jurisdiction.'" Tirone v. N.Y. Stock Exch., Inc.,
No. 05 Civ. 8703 (WHP), 2007 U.S. Dist. LEXIS 54255, 2007 WL 2164064, at *3
(S.D.N.Y. July 27, 2007) (quoting Magee v. Nassau Cnty. Med. Ctr., 27
F. Supp. 2d 154, 158 (E.D.N.Y. 1998)).
2. Rule 12(b)(6)
HN3A Rule 12(b)(6) motion to dismiss
for failure to state a claim tests the legal sufficiency of a plaintiff's
claims for relief. Krasner v. HSH Nordbank AG, 680 F.
Supp. 2d 502, 511 (S.D.N.Y. 2010) [*14] (Lynch,
D.J.). In deciding the motion, a court must accept as true all factual
allegations made in the complaint and draw all reasonable inferences in favor
of the plaintiff. Allaire Corp. v. Okumus, 433 F.3d
248, 249-50 (2d Cir. 2006). The complaint need not contain
"detailed factual allegations." Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).
Nonetheless, "[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice." Id.
(citing Twombly, 550 U.S. at 555).
HN4To
survive a Rule 12(b)(6) motion, a complaint
"must contain sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570).
Determining whether the allegations of a complaint nudge a plaintiff's claims
across the line from merely "conceivable to plausible" requires a
court to "draw on its judicial experience and common sense." Id. at 679-80. In making
its assessment, a court may consider, in addition to the plaintiff's factual
averments, any written instrument upon which the plaintiff necessarily
relies, regardless of whether it is attached [*15] to
the complaint or incorporated therein by reference. See Chambers v. Time Warner, Inc., 282
F.3d 147, 152-53 (2d Cir. 2002).
When a plaintiff is
proceeding pro se, a court also may rely on any opposition papers in
assessing the legal sufficiency of the plaintiff's claims. See Crum v. Dodrill, 562 F. Supp. 2d
366, 373 n.13 (N.D.N.Y. 2008) (citing Gadson v. Goord, No. 96 Civ. 7544
(SS), 1997 U.S. Dist. LEXIS 18131, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov.
17, 1997)). Furthermore, a court may take judicial notice of
indisputable facts. See Fed. R. Evid. 201. Legal
conclusions masquerading as factual averments, however, may not be taken into
account. Smith v. Local 819 I.B.T. Pension
Plan, 291 F.3d 236, 240 (2d Cir. 2002) (citing Gebhardt v. Allspect, Inc., 96 F.
Supp. 2d 331, 333 (S.D.N.Y. 2000)).
HN5Because
Pinkard is proceeding pro se, the Court must read her pleadings "liberally"
and interpret them "to raise the strongest arguments" that they may
suggest. Chavis v. Chappius, 618 F.3d 162,
170 (2d Cir. 2010) (citing Harris v. City of N.Y., 607 F.3d
18, 24 (2d Cir. 2010)). "Dismissal of a pro se complaint is
nevertheless appropriate where a plaintiff has clearly failed to meet minimum
pleading requirements." Carvel v. Ross, No. 09 Civ. 722
(LAK) (JCF), 2011 U.S. Dist. LEXIS 25203, 2011 WL 856283, at *8 (S.D.N.Y.
Feb. 16, 2011). [*16]
B.
Applicable Law
1.
Wrongful Termination
HN6Title
VII makes it unlawful for an employer "to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
HN7To
establish a claim of employment discrimination under Title VII, Pinkard must
show that: (a) she was a member of a class protected by the statute; (b) she
was qualified for the position; (c) she suffered an adverse employment
action; and (d) the adverse employment action occurred under circumstances
that give rise to an inference of discrimination. See Farias v. Instructional Sys., Inc.,
259 F.3d 91. 98 (2d Cir. 2001). At the pleading stage, even if
Pinkard is not required to establish a prima facie case of employment
discrimination to survive a motion to dismiss, see Swierkiewicz v. Sorema N.A., 534
U.S. 506, 510-11, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002); Barbosa v. Continuum Health
Partners, Inc., 716 F. Supp. 2d 210, 214-15 (S.D.N.Y. 2010) (reconciling
Twombly, Iqbal, and Swierkiewicz), [*17] her
"claim must be facially plausible and must give fair notice to the
defendant[] of the basis for the claim,"Barbosa, 716 F. Supp. 2d at 215 (citing Fowler v. Scores Holding Co., Inc.,
677 F. Supp. 2d 673, 679 (S.D.N.Y. 2009)).
2.
Retaliation
HN8Title
VII also makes it unlawful for an employer to retaliate against an employee
who has exercised her statutory right to complain about conduct that she
considers discriminatory. 29 U.S.C. § 623(d); 42 U.S.C. §§ 2000e-3(a), 12203(a). A retaliation
claim is "not dependent on the merits of the underlying discrimination
complaint." Davis v. State Univ. of N.Y., 802
F.2d 638, 642 (2d Cir. 1986). Consequently, to establish a prima
facie case of retaliation, an employee need only show that: (a) she engaged in
a protected activity; (b) the employer knew of this activity; (c) the
employer took adverse action against the employee; and (d) there was a causal
relation between the adverse action and the employee's protected activity. Cifra v. Gen. Elec. Co., 252 F.3d
205, 216 (2d Cir. 2001); Holt v. KMI-Cont'l, Inc., 95 F.3d
123, 130 (2d Cir. 1996). "[P]roof of causation can be shown
either: [a] indirectly, by showing that the protected activity was followed [*18] closely
by discriminatory treatment, or through other circumstantial evidence such as
disparate treatment of fellow employees who engaged in similar conduct; or
[b] directly, through evidence of retaliatory animus directed against the
plaintiff by the defendant." Gordon v. N.Y.C. Bd. of Educ., 232
F.3d 111, 117 (2d Cir. 2000). Furthermore, mere temporal proximity
between a plaintiff's protected activity and an adverse employment action
may, by itself, be sufficient to create an inference of retaliation for
purposes of proving a prima facie case. El Sayed v. Hilton Hotels Corp.,
627 F.3d 931, 932 (2d Cir. 2010).
3.
Title VII Claim Against a Union
HN9Discrimination
by unions is prohibited by Title VII, which makes it "an unlawful
employment practice for a labor organization . . . to exclude or to expel
from its membership, or otherwise discriminate against, any individual
because of his race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(c)(1);
see Yerdon v. Henry, 91 F.3d 370, 375
(2d Cir. 1996) (labor union liable under Title VII).
A Title VII claim brought against a union, however, is evaluated differently
than such a claim against an employer. To succeed on her claim, [*19] Pinkard
first must show that "the [u]nion breached its duty of fair
representation to [her]." Oparji v. United Fed. of Teachers,
418 F. Supp. 2d 139, 147 (E.D.N.Y. 2006). A union breaches its
duty of fair representation when (a) "its conduct toward a member . . .
is arbitrary, discriminatory, or in bad faith," Marquez v. Screen Actors Guild,
Inc., 525 U.S. 33, 44, 119 S. Ct. 292, 142 L. Ed. 2d 242 (1998),
and (b) the alleged misconduct injures the plaintiff, Spellacy v. Airline Pilots
Assoc.-Int'l, 156 F.3d 120, 130 (2d Cir. 1998). If Pinkard establishes
a breach of the duty of fair representation, she then "must show some
indication that the union's actions were motivated by unlawful discrimination
or retaliation." Oparji, 418 F. Supp. 2d at 146.
C.
Application of Law to Facts
1.
Exhaustion of Administrative Remedies
The DOE contends
that the Complaint must be dismissed pursuant to Rule 12(b)(1) on the ground that
the Court lacks subject matter jurisdiction because Pinkard failed to allege
discrimination based on race or color in her EEOC Charge. (See DOE Mem. at
7-8). Indeed, in her charge, Pinkard selected only "sex" and
"age" as the "circumstances of alleged discrimination,"
omitting "race" or "color." (See Rivzi Decl. [*20] Ex.
C).
HN10Since
the exhaustion of administrative remedies "is a precondition to bringing
a Title VII claim in federal court, rather than a jurisdictional
requirement," Francis v. City of N.Y., 235 F.3d
763, 768 (2d Cir. 2000) (quotation marks
omitted), Rule 12(b)(6) — rather than Rule 12(b)(1) — is the
appropriate vehicle to evaluate the sufficiency of a plaintiff's efforts to
exhaust her remedies, see Holowecki v. Fed. Express Corp.,
440 F.3d 558, 565 (2d Cir. 2006) (reviewing motion
to dismiss complaint for failure to exhaust administrative remedies under Rule 12(b)(6)); Fernandez v. Chertoff, 471 F.3d 45,
51-52 (2d Cir. 2005) (same).
HN11Generally,
a plaintiff may bring a Title VII claim in federal court only after filing a
timely charge with the EEOC or with "a State or local agency with
authority to grant or seek relief from such practice." 42 U.S.C. § 2000e-5(e); 42 U.S.C. § 12117(a).
Although exhaustion thus is "ordinarily an essential element of a Title
VII claim, . . . [c]laims not raised in an EEOC complaint . . . may be
brought in federal court if they are 'reasonably related' to the claim filed
with the agency." Williams v. N.Y.C. Hous. Auth., 458
F.3d 67, 70 (2d Cir. 2006) (quoting [*21] Legnani v. Alitalia Linee Aeree
Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001), and Butts v. City of N.Y. Dep't of
Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)).
"A claim raised
for the first time in the district court is 'reasonably related' to
allegations in an EEOC charge 'where the conduct complained of would fall
within the scope of the EEOC investigation which can reasonably be expected
to grow out of the charge of discrimination.'" Holtz v. Rockefeller & Co., 258
F.3d 62, 83 (2d Cir. 2001) (quoting Butts, 990 F.2d at 1402).
"The central question is whether the complaint filed with the EEOC gave
that agency adequate notice to investigate discrimination [of the type
alleged in the civil complaint]." Williams, 458 F.3d at 70 (internal quotation
marks omitted).
Here, Pinkard has
failed to exhaust her administrative remedies because her charge did not put
the EEOC on notice to investigate discrimination based on Pinkard's race or
color. Instead, Pinkard's EEOC charge was based solely on her age and sex.
(Rivzi Decl. Ex. C). Courts have consistently held that discrimination claims
based on age, sex, or disability are not reasonably related to claims based
on race or color, [*22] and
vice versa. See, e.g., Joseph v. Am. Works, Inc., No. 01
Civ. 8287 (DC), 2002 U.S. Dist. LEXIS 9075, 2002 WL 1033833, at *5-6(S.D.N.Y.
May 21, 2002) (disability claim dismissed for
failure to exhaust because plaintiff asserted only Title VII race
discrimination claims in her EEOC complaint); Coleman v. Bd. of Educ., No. 96
Civ. 4293 (GBD), 2002 U.S. Dist. LEXIS 619, 2002 WL 63555, at *3 (S.D.N.Y.
Jan. 16, 2002) (gender discrimination claim not
reasonably related to national origin, race, or color discrimination claims); McNealy v. N.Y. Pub. Library, No.
96 Civ. 3023 (DAB), 1997 U.S. Dist. LEXIS 15014, 1997 WL 607548, at *4
(S.D.N.Y. Oct. 1, 1997) (disability claim
not reasonably related to race discrimination claim raised in EEOC charge); DiProjetto v. Morris Protective
Serv., 489 F. Supp. 2d 305, 308 (W.D.N.Y. 2007) (race, gender, and
disability discrimination claims not reasonably related to discrimination
claim based on national origin); James v. Fed. Reserve Bank of N.Y.,
No. 01-CV-1106 (RJD) (WP), 2005 U.S. Dist. LEXIS 43493, 2005 WL 1889859, at
*5 (E.D.N.Y. Aug. 8, 2005) (race
discrimination claim not reasonably related to disability, age, and gender
discrimination charges raised before the EEOC).
Pinkard's claims
against both the DOE and UFT therefore must be dismissed pursuant to Rule 12(b)(6) [*23] for
failure to exhaust her administrative remedies.
2.
Timeliness
Even if Pinkard had
exhausted her administrative remedies, most of her claims would have to be
dismissed on the independent ground that they are untimely.
"Title VII . .
. require[s] claimants to file a charge of discrimination with the EEOC . . .
within 300 days of the alleged discriminatory employment action; claims for
acts that occurred more than 300 days before the filing are time-barred in
federal court." Adams v. N.Y.S. Educ. Dep't., 752
F. Supp. 2d 420, 465 n.52 (S.D.N.Y. 2010) (citing 29 U.S.C. § 626(d)(1)(B); 42 U.S.C. §§ 12117(a), 2000e-5(e)(1)). There
are, however, several possible ways to overcome the limitations period.
First, the Second Circuit has held that the 300-day limitations period is
"subject to waiver, estoppel, and equitable tolling." Downey v. Runyon, 160 F.3d 139,
145-46 (2d Cir. 1998) (quotingZipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982)).
Additionally, a plaintiff may rely on the "continuing violation
exception." See Patterson v. Cnty. of Oneida, N.Y.,
375 F.3d 206, 220 (2d Cir. 2004). Under that exception, if a
plaintiff "files an EEOC charge that is timely as to any incident [*24] of
discrimination in furtherance of an ongoing policy of discrimination, all
claims of acts of discrimination under that policy will be timely even if
they would be untimely standing alone."Nghiem v. U.S. Dep't of Veterans
Affairs, 323 F. App'x 16, 17 (2d Cir. 2009) (quoting Patterson, 375 F.3d at 220).
Nevertheless, "discrete discriminatory acts," such as termination,
failure to promote, or refusal to hire, "are not actionable if time
barred, even when they are related to acts alleged in timely filed
charges." Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 113-14, 122 S. Ct. 2061, 153 L. Ed. 2d 106(2002).
Thus, each "discrete act" of discrimination or retaliation
"constitutes a separate actionable unlawful employment practice." Id. at 114. (internal
quotation marks omitted).
In this case,
Pinkard's EEOC charges against the DOE and UFT evidently were filed no
earlier than April 8, 2011. (See Compl. at 5-6; ECF No. 23 (Decl. of Stuart
Lichten, Esq., dated Nov. 18, 2011), ¶¶ 4-5). Any claims related to DOE or
UFT actions that occurred more than 300 days before April 8, 2011 — i.e.,
before June 12, 2010 — therefore are time barred. Consequently, Pinkard's
claims relating to her termination in 2005, her grievance in [*25] 2006,
any shortcomings in her union representation in 2008-2009, and her
reinstatement in 2009 are untimely. Furthermore, Pinkard has failed to allege
any facts that suggest that the Defendants had an "ongoing policy of
discrimination" that would warrant application of the continuing
violation exception, see Nghiem, 323 F. App'x at 17,
or any of the three other exceptions set forth in Downey, 160 F.3d at 145-46.
Pinkard's claims
relating to events occurring before June 12, 2010 therefore are dismissed as
time barred.6
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
6 This
includes all of Pinkard's claims against Chen. Even if those claims were not
time barred, her Title VII claims against Chen would have to be dismissed
because individuals cannot be held liable under Title VII. See Mandell v. Cnty. of Suffolk, 316 F.3d 368, 377 (2d Cir.
2003); Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per
curiam)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
3.
Failure to State a Claim
a.
Wrongful Termination
To the extent
Pinkard brings a Title VII claim arising out of her termination on August 16,
2010, and the UFT's subsequent failure to represent her, her claim would have
to be dismissed even if it had been properly exhausted, for failure to allege
facts giving rise to an inference [*26] of
racial discrimination. Pinkard's single, conclusory statement with respect to
discriminatory intent — that she "feels" that neither the DOE nor
the UFT "handled [her] case properly" "because [she] is a
black woman" — clearly is insufficient to state a racial discrimination
claim under Title VII. See, e.g., Reid v. Hebrew Home for the Age,
No. 11 Civ. 1408 (GBD) (GWG), 2012 U.S. Dist. LEXIS 29013, 2012 WL 698135, at
*2 (S.D.N.Y. Mar. 05, 2012) (plaintiff's
conclusory statement that "defendant's acts were taken 'because of [her]
race' . . . without more is insufficient to support a race discrimination
claim") (brackets in original); Alvarez v. Rosa, No. 11 Civ. 3818
(KBF), 2012 U.S. Dist. LEXIS 25693, 2012 WL 651630, at *4 (S.D.N.Y. Feb. 28,
2012) (discrimination claim dismissed
because "[p]laintiff provide[d] only speculations, labels and
conclusions in support of her claims"); Mitchell v. Project Renewal, No. 09
Civ.1958 (CM), 2010 U.S. Dist. LEXIS 8323, 2010 WL 481348, at *3 (S.D.N.Y.
Jan. 29, 2010) (plaintiff's conclusory statement,
that "because I was African American, [plaintiff's supervisor] felt like
I wasn't good enough to be a supervisor," insufficient to state a
discrimination claim under Title VII). This shortcoming, of course, applies
to any Title VII claim [*27] that
Pinkard might be able to assert with respect to earlier events.
Accordingly, all of
Pinkard's Title VII claims are subject to dismissal for failure to state a
claim. See Fed. R. Civ. P. 12(b)(6).
b.
Retaliation
Pinkard also has
failed to state a retaliation claim against the UFT based on its alleged
failure to represent her following her August 2010 termination. Indeed,
Pinkard has failed to demonstrate any "indication that the union's
actions were motivated by unlawful discrimination or retaliation." Oparji, 418 F. Supp. 2d at 146.
Pinkard similarly has set forth no facts substantiating her conclusory
allegation that her "wages are being withheld as retaliation." Her
retaliation claim consequently also must be dismissed.7
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
7 To
the extent Pinkard seeks to assert a "hybrid" claim against the UFT
for breaching its duty of fair representation under the Labor Management
Relations Act (LMRA), see DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151,
164, 103 S. Ct. 2281, 76 L. Ed. 2d 476, (1983), that claim also
must fail because federal courts lack "subject matter jurisdiction over
duty of fair representation claims brought by employees of political
subdivisions." Gear v. Dep't of Ed., No. 07 Civ. 11102 (NRB), 2010 U.S.
Dist. LEXIS 137153, 2010 WL 5297850, at *3-4 (S.D.N.Y. Dec. 21, 2010) [*28] (citing Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d
Cir. 2009)).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
III.
Conclusion
For the reasons set
forth above, the Defendants' motions to dismiss, (ECF Nos. 22, 33), are
granted. Moreover, because Pinkard failed to exhaust her administrative
remedies and could not timely do so now, that dismissal is with prejudice. The
Clerk of the Court accordingly is requested to close this case. The Court
further certifies that any appeal from this Decision and Order would not be
taken in good faith because it would be frivolous. See 28 U.S.C. § 1915: Coppedge v. United States, 369 U.S.
438. 445, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
Dated: New York,
New York
May 2, 2012
/s/ Frank Maas
FRANK MAAS
United States
Magistrate Judge
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