WALL, United States Magistrate Judge:
Before the court, on consent of the parties, are three motions: (1) a motion for summary judgment by defendant Darnel C. Powell (DE[47] & [49]); (2) a motion for summary judgment by defendants School District, Board of Education, Root, Clark-Snead and Spencer ("the District Defendants") (DE[55] & [57]); and (3) plaintiff's motion to amend the complaint (DE[50-52]). The motions for summary judgment are opposed by the plaintiff (DE[48] & [56]), and the motion to amend is opposed by the defendants (DE[51] & [53-54]). For the reasons set forth herein, Powell's motion for summary judgment is granted in part and denied in part; the District defendants' motion for summary judgment is granted; and the plaintiff's motion to amend is denied. All claims are dismissed except those against Darnel Powell in his individual capacity pursuant to New York State Humans Rights Law § 296(1) and intentional infliction of emotional distress. The court will not exercise supplemental jurisdiction over those state law claims, but Alexander may pursue them in state court if she chooses to do so. The Clerk of the Court shall enter judgment accordingly.
Plaintiff Ann Alexander filed the Complaint in this action in February 2010, asserting claims based on alleged employment discrimination. She alleges (1) sexual harassment; (2) intentional infliction of emotional distress; (3) negligent infliction of emotional distress; (4) hostile work environment; and (5) respondeat superior as her causes of action. Complaint, DE[1]. Although she does not specify the statutory bases for her causes of action in those sections, aside from a reference to Title VII in her first cause of action, she does allege that the action is brought pursuant to Title VII, section 1981, the Fourteenth Amendment, and the New York Human Rights Law § 296. Complaint, DE[1], ¶ 1. She bases subject matter jurisdiction on Title VII. Id. ¶ 2.
Alexander began working for the Westbury School District at the middle school in 1993, and was granted tenure in 1995. She is still employed by the District at the middle school. The District adopted a sexual harassment policy in 1997, and Alexander received a copy of it in 1997 and 2002. Alexander Dep., Ex. D at 21-22, Ex. G
The defendants assert that Alexander had some disciplinary problems prior to the alleged harassment, but those details are irrelevant to the resolution of these motions and need not be repeated here.
The District Defendants' 56.1 Statement next moves on to the incidents of alleged harassment in 2005. Alexander denies almost all of the factual allegations, despite the fact that they are supported by her own deposition testimony, and she offers no evidentiary support at all for her denials. The facts set forth and evidenced by the defendants and deemed admitted
Alexander claims that during the 2005/06 school year Powell tried to transfer her to the MARS program, which assisted students needing extra care, for the following year. Powell helped to found the MARS program and testified that he did not view asking someone to join it as an insult, although Alexander viewed it as punishment. Alexander told him she did not want to work in the MARS program, but he told her they needed "heavy hitters" like her. Toward the end of the 2005-06 school year, Alexander went to defendant Robert Root to complain about the proposed MARS assignment. Root indicated he would take care of the situation, as the proposed assignment would have required Alexander to teach a number of seventh grade classes, which she was not certified for. Alexander is certified to teach grades K-6. Alexander says that Root handled the situation to her satisfaction. At the time she went to Root about the MARS issue, Alexander did not mention any incidents of harassment by Powell. Powell issued an unsatisfactory review at the end of the 2005-06 year (incorrectly pleaded as the 2006-07 school year in the Complaint), but the union got involved and the review was amended to satisfactory.
The District hired defendant Spencer as an assistant principal at the middle school for the 2006-07 school year, after Powell had sought Alexander's participation in the MARS program. During the year, Alexander once referred to her students as "acting like a bunch of crack babies," which she admitted was an inappropriate remark that came from her frustration with students who had serious disciplinary problems. At the end of the 2006-07 school year, Spencer gave Alexander a satisfactory summative evaluation. Ex. R.
In September 2007, Alexander was in the middle school's crowded main office talking to a colleague when Powell interrupted and said "I'm going to get my sugar." Powell then leaned over the counter and kissed Alexander on the cheek. In Spring 2008, Alexander was leaving the building when Powell, who was outside the building, motioned for her to wait for him. He asked her why she was in a hurry and she said she was on her way to class. Powell then allegedly put his hands on Alexander's shoulders, looked at her, and said "You are going to give me some." Alexander asked, "some of what?" and he answered "You know what." He then walked away and said they would discuss it another time.
In August 2008 Alexander saw Powell in the school parking lot and he asked her if she had ever hear of or been to "Hedonism." She had not heard of Hedonism at the time, but now believes it to be "a place in Jamaica where you go for free sex." Powell told her he had been there and if she ever went she should think of him. As Alexander walked to her car, Powell followed her and asked if he could drive her
Alexander was observed in her classroom in November 2008 by Christie Thiel, a new Department Chairperson. The parties disagree on details of whether Powell had directed Michelle Peterson, the new English Language Arts Director to whom Thiel reported, to observe Alexander and give her a bad evaluation, whether Powell had told Thiel to do the observation, and whether Thiel had orally reported to Alexander that her performance was satisfactory. Thiel has submitted an affidavit in support of the District Defendants' motion, and she swears that she was never directed to give Alexander a negative performance evaluation, that she was asked by Peterson to observe Alexander, that she observed Alexander in November 2008 and had "various concerns with Ms. Alexander's performance" at that time. Ex. T, Thiel Aff., ¶¶ 3-7. Saying that she was not "anxious to have a confrontation with Ms. Alexander," she went to Powell when she considered giving an unsatisfactory rating. She reports that Powell told her not to write up the report, as he wanted to give Alexander another chance. Thiel believes that Powell then asked Peterson to do the evaluation. Alexander continually asked Thiel for a written report of the observation, and Thiel completed the report in response to Alexander's demands. See Ex. U. Thiel checked the satisfactory box, based upon her "understanding that Ms. Alexander would be getting reviewed again." Id. ¶¶ 8-12. She concludes by saying that she is "unaware of any directive from anyone to issue a negative performance evaluation to Ms. Alexander" and that she never told anyone that there had been such a directive. Id. ¶ 13. Although Alexander disputes a number of these details, she has pointed to no sworn testimony or other evidence that supports her position. I do note, however, that Alexander states that Thiel finally wrote up the report because Alexander went to the union president, who phoned defendant Root, who phoned Powell and told him the report had to be in writing. DE[56-15], ¶ 124.
Michelle Peterson has also submitted an affidavit. Ex. S. She states that Powell never told her to give Alexander a negative performance evaluation. She did ask Thiel to conduct the Alexander evaluation. Peterson was later told by Powell to conduct another observation of Alexander. Powell told her that Thiel had some concerns about Alexander's performance, but he wanted to give her a second chance. Peterson observed Alexander in January 2009 and issued a satisfactory performance rating. See Ex. V. She states that she is unaware of any directive from anyone to issue a negative performance evaluation to
In November 2008, District guidance counselor Lisa Maldonado told her union representative that she had been sexually harassed by Powell. The union rep reported the allegation to Root, who was the District's Title IX officer from 2003 to 2010. Root met with Maldonado and investigated. Powell denied the allegations. Root issued a memo on December 2, 2008 that concluded that both sides seemed credible and that an outside investigator should be retained. Ex. Y. Root's memo also recommended that Maldonado be assigned to report to the assistant principals and Powell be directed to avoid direct contact with Maldonado. Id. The defendants say that by the time the union asked for an outside investigator, defendant Clark-Snead had already decided to retain one. After Maldonado's complaint, Alexander told union president Michael Burger that she too had been sexually harassed by Powell. Burger asked Alexander why she had not come forward sooner and, as noted earlier, Burger reports that Alexander said that she did not want to see an African-American male (Powell) have his name tarnished. Alexander says that she was also afraid of being transferred.
The District hired attorney Bronwyn Black to conduct an investigation. Black interviewed a number of people, including Alexander and Powell, and concluded that Maldonado's and Alexander's allegations were more credible than Powell's denials. The defendants say that she recommended that the District follow the proper procedures for matters in which there is a finding of sexual harassment. See Black memo, Ex. Z at 36. Alexander sets forth a lengthy denial of this in her 56.1 counter-statement, but without any evidentiary notation or support. The gist of her "denial" is that Black found Powell to be guilty of sexual harassment. See DE[156-15], ¶ 144.
In February 2009, the District suspended Powell and brought disciplinary charges against him pursuant to New York Education Law § 3020-a. While Powell was suspended, a supplemental investigation was conducted and a supplemental memo issued by Black. Ex. AA. The outcome was the same. Powell never returned to work for the District, and the 3020-a hearing officer ultimately believed that Powell had committed the acts alleged. The District adopted the hearing officer's findings and terminated Powell's employment. Alexander has testified that she has not been sexually harassed by anyone in the District since Powell left.
Before the 2006-07 school year, Alexander had asked Powell if she could start teaching Academic Intervention Services ("AIS") classes, which involved the provision of additional services to students needing extra help in math or reading. Powell granted the request and Alexander began teaching AIS classes. Alexander continued to teach AIS classes in the 2007-08 and 2008-09 school years. In or about March or April of 2009, the District Defendants report, there arose a need to transfer a teacher named Michael Marrin. Defendant Root believed that a three-way transfer, which would involve a teacher named Carol Clark moving from an elementary school to the middle school, Marrin moving from one elementary school to another, and Alexander replacing Marrin at the elementary school he would be leaving, was indicated. Root and Clark-Snead both say that they thought Alexander would be a good fit at the elementary school and deny that the transfer was related
Alexander testified that the transfer was part of a plot by defendant Clark-Snead to set her up for failure. She also testified that Clark-Snead explained her transfer by saying that Alexander was one of the best teachers the school had, and that if she taught the younger children, they would not need AIS services by the time they got to middle school. Alexander received a satisfactory evaluation from then acting-principal Dennis Hinson and Christie Thiel in June 2009.
Alexander contends that defendant Spencer told a group of high school girls in June 2009 that Alexander was transferred because she lied abut Powell. Alexander says she and Maldonado heard this from a parent. At her deposition, Spencer denied making such a comment. During the course of the 2009-10 school year, Spencer sent memos to Alexander which she did not consider harassing, but that Alexander "took issue with." Alexander Dep., Ex. D, 190.
During the 2009-10 school year, a situation arose involving a student identified as R.S. At her deposition, Alexander testified that she had given R.S. an assignment that he had not handed in, so she gave him a zero on it. She reports that the child's parent spoke with Alexander at open school night, and was very frustrated with her child and very upset, and that Alexander did not want to speak with her when she was in that frame of mind. Alexander and the parent met with Spencer on December 11, 2009 and a plan was devised to monitor what R.S. handed in to Alexander. On December 17, Spencer sent a memo to Alexander regarding the meeting, noting that the parent had complained that Alexander had not previously advised her about the missed homework and poor grades. Ex. EE. The memo also indicated that Alexander had said that it was "impossible to maintain paperwork." Alexander denies this and refers to a letter she wrote to Spencer, but she does not cite to any exhibit or any testimony to support her denial. Alexander says that Spencer mischaracterized the meeting and the memo caused Alexander to have heart palpitations for which she went to the nurse's office. Alexander received a satisfactory summative evaluation at the end of the school year, and the R.S. incident was not mentioned in it. Alexander says that is because she had filed the lawsuit.
Another incident occurred in the 2009-10 school year, involving a student called A.M., whose parent complained to Spencer that Alexander had intimidated A.M. in the classroom. Spencer, Alexander and A.M.'s parent met on December 9, 2009. In a memo issued by Spencer on December 14,
On March 23, 2010, Alexander wore jeans to works and was told by Principal Hinton to go home and change. Alexander told Hinton that she could not get into her house because the garage door was broken so she was allowed to remain at school. Alexander maintained at her deposition that many other teachers wore jeans and were not humiliated as she was. That same day, Spencer issued a memo to Alexander reminding her of proper procedures for sending students out of the classroom. Ex. HH. Alexander wrote on the memo that she was upset at the time from the jeans incident.
Alexander asserts a few other incidents that occurred after she filed her Notice of Claim and the complaint in this lawsuit. Alexander alleges that her students were improperly excluded from participation in a spelling bee. On May 21, 2010, Alexander wrote to Thiel asking why she had not been informed about the spelling bee. Ex. II. Thiel responded by email on May 24, 2010 that the spelling bee coordinator had distributed the list of spelling words to the ELA teachers and that he had not given a list to Alexander initially because he mistakenly believed that Alexander taught only AIS and not ELA classes. Id. The spelling bee coordinator put a list of the words into Alexander's mailbox.
Another complaint involves Powell's § 3020-a proceeding. Root told Alexander that she would have to testify at it, but Alexander said that her attorney was away at that time. Root told her that if she did not appear, she would be subpoenaed. The District did serve a subpoena and Alexander had her own attorney present when she testified at the hearing.
Alexander contends that the District ignored previous incidents involving Powell, notably an incident in 2005 involving a District teacher named Sheila Scott-Powell
Scott-Powell had already met with Clark-Snead and complained about her unsatisfactory evaluation and about Powell's treatment of her. According to Clark-Snead, the emphasis by Scott-Powell at the discussion was that Powell had not treated her fairly in the end of the year evaluation, but Scott-Powell had also
Another incident involving Powell that Alexander says the District mishandled involved a teacher named Josephine Hall. In 2006, a student was accused of taking photographs up Ms. Hall's skirt when she stood in front of a class. Powell suspended the student for 2 days. Hall did not like the way Powell handled the situation, but made no accusations that Powell sexually harassed her. The student left the country and never returned to the District.
Pursuant to Federal Rule of Civil Procedure 56(c), courts may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). At this stage, the burden of proof is on the moving party to show that there is no genuine issue of material fact. Gallo v. Prudential Residential Services, L.P., 22 F.3d 1219, 1223 (2d Cir.1994) (citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975)). A genuine issue of fact exists if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making this determination, the court must view all of the evidence "in the light most favorable" to the non-movant. Breland-Starling v. Disney Publishing Worldwide, 166 F.Supp.2d 826, 829 (S.D.N.Y.2001) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505). In addition, the court must resolve all ambiguities and draw all inferences in favor of the party opposing the motion. Ackerman v. National Financial Systems, 81 F.Supp.2d 434 (E.D.N.Y.2000). Once the moving party has met its initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56; see Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505.
The Second Circuit has indicated that trial courts should be wary of granting summary judgment in discrimination cases since intent and state of mind are typically at issue and direct evidence of discriminatory intent is rare. Tarshis v. The Riese Organization, 195 F.Supp.2d 518, 523-24 (S.D.N.Y.2002); see also Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001). Nonetheless, cases involving allegations of workplace discrimination and harassment are still subject to summary judgment, and where the nonmovant fails to demonstrate a genuine issue of material fact, relief may be granted against such claims. Holtz, 258 F.3d at 69.
As is routine in this Circuit, the court will treat plaintiff's claims under Title VII and the New York State Human Rights Law "as analytically identical, applying the same standard of proof to both claims." Dauer v. Verizon Communications, Inc., 613 F.Supp.2d 446 (S.D.N.Y.2009) (quoting Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 n. 9 (2d Cir.2008) (considering sex discrimination claims)); see also Schiano v. Quality Payroll Sys., 445 F.3d 597, 609 (2d Cir.2006) (hostile work environment and retaliation claims subject to same standards under federal and New York state law). With these standards in mind, I turn to the District Defendants' motion, noting that all findings in regard to the Title VII claims apply equally to the New York Human Rights Law claims.
As noted earlier, the plaintiff has not met her obligations under Local Civil Rule 56. She has simply denied most of the defendants' factual allegations, without explanation or support. Where she does attempt to assert some explanation for her denial, she makes factual statements unsupported by any citation to the record, including her own deposition transcript. As the defendants have noted, the result of this failure is that the defendants' 56.1 statements are by and large deemed admitted. See, e.g., Holtz, 258 F.3d at 74; Bank of America v. Commack Properties, LLC, 2010 WL 5139219, *6 n. 2 (E.D.N.Y. Dec. 10, 2010); Global Vision Products, Inc. v. Pfizer, Inc., 2006 WL 344757, *2 (S.D.N.Y. Feb. 14, 2006). Where the plaintiff's own deposition testimony supports her version of the facts, it will be noted and considered. Otherwise, the defendants' facts are deemed admitted.
The defendants also argue that the affidavit testimony by Lisa Maldonado and Michael Burger submitted by Alexander in opposition to this motion is inconsistent with their deposition testimony and must be disregarded on this motion for summary judgment
Aside from the defendants' claim that the statements contradict earlier sworn testimony, parts of the statements merely report hearsay and are not based on personal knowledge. Thus, even if such statements are consistent with prior sworn statements, they cannot be considered on this motion for summary judgment. "An affidavit or a declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R.Civ.P. 56(c)(4). These standards will be applied to the documents when they are discussed infra.
It is well settled that individuals are not subject to liability under Title VII and that Alexander's Title VII claims against the individual defendants must be dismissed as a matter of law. See Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir.2004); Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir.2003). The plaintiff has noted her withdrawal of her Title VII claims against the individual defendants and that claim is deemed dismissed.
The District next argues that Alexander cannot establish liability for her Title VII hostile work environment claim against it. An employer will not be vicariously liable for a hostile work environment where it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and where "the plaintiff employee ... unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm ..." Faragher v. City of Boca Raton, 524 U.S. 775, 806-07, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Here, they say, they satisfy both prongs of the Faragher test and are not liable.
Reasonable Care: Whether an employer has a sexual harassment policy is an "important consideration in determining whether an employer has satisfied" the first prong of the Faragher defense. Duviella v. Counseling Service of Eastern Dist. of NY, 52 Fed.Appx. 152, 153 (2d Cir.2002). Some courts have found that where an employer has implemented a sexual harassment policy and has advised its employees of the policy, the first Faragher prong will be satisfied. Wahlstrom v. Metro-North Commuter Railroad Co., 89 F.Supp.2d 506, 523 (S.D.N.Y.2000). Here, the District has established that it adopted a sexual harassment policy and distributed it to its employees in 1997 and 2002. See Ex. F. Both Alexander and Powell acknowledged receipt of the policy. See Exs. G & H. The policy provided that employees should make complaints of sexual harassment to the Title IX officer and to their immediate supervisor, but where the immediate supervisor is the harasser,
The plaintiff also argues that the policy was ineffectual because it would have required her to report the harassment to the harasser. But, as noted, the policy itself provided for that eventuality. In any event, Alexander made her complaint to her union president, who relayed it to Root, who had hired the outside investigator for the Maldonado claim, who then also investigated Alexander's claim.
Alexander further argues that the District did not exercise reasonable care to prevent and correct harassing behavior because "once an employer has notice of a hostile work environment it has a duty to take reasonable steps to eradicate it," and the District here was on notice and did nothing. DE[56-14] at 6 (citing Murray v. New York University College of Dentistry, 57 F.3d 243, 249 (2d Cir.1995)). The gravamen of the plaintiff's argument in this regard-that is, that the District could have prevented Powell's harassment of Alexander and did not — is her claim that the District was on notice of a hostile work environment as early as 2005 from the complaints of Sheila Scott-Powell, and in 2006 from the complaints of Josephine Hall, but did nothing to prevent and correct those situations. Indeed, the plaintiff argues, the District covered up Powell's wrongdoing and thus encouraged him to continue harassing his subordinates, creating an atmosphere of fear and intimidation. DE[56-14] at 6. She also alleges that the District "sanitized" Powell's file and that both Scott-Powell and Hall were transferred in retaliation for complaining. Id. These allegations are, however, based to a marked extent on the plaintiff's beliefs about what happened or why and not on evidence in the record. The facts as alleged by the defendants and supported by evidence in the record, facts that have been deemed admitted as explained supra, reflect that Clark-Snead followed up on Scott-Powell's complaints, transferred Scott-Powell to protect her seniority and privacy, and that Scott-Powell was satisfied with the way the situation was handled.
In her report, Bronwyn Black found that Scott-Powell had complained to Michael Burger about Powell harassing her, but never made a formal complaint "because the matter was resolved when she was transferred to the High School with her consent. She stated that she just needed to get away from the Principal and she knew that she could not bear to be near him in any way." Although she lost her chairmanship and its attendant financial benefits, Black reports, Scott-Powell "is happy at the High School and has no problems since she has been there." Ex. Z at 14-15.
The plaintiff has not submitted statements from either Scott-Powell or Hall to contradict the facts asserted by the District or found by Ms. Black, facts that do not lead to material issue of fact as to whether the District exercised reasonable care in light of the Scott-Powell and Hall
As to the complaints by the plaintiff herself and Lisa Maldonado, a plaintiff in a separate lawsuit, the District promptly hired an independent investigator, brought § 3020-a claims against Powell and fired him. Alexander appears to argue that the District itself did not do enough, but its hiring of the outside investigator and subsequent termination of Powell amounted to "reasonable care to prevent and correct promptly [Powell's] sexually harassing behavior." "The reasonableness of an employer's response must be assessed based on the totality of the circumstances," and summary judgment is proper where an employer has taken "prompt and appropriate corrective action" with regard to an employee's complaint. Wahlstrom, 89 F.Supp.2d at 525. Here, the totality of the circumstances boils down to the following established and material facts: (1) Alexander first complained about Powell to her union president, Michael Burger, in November 2008 after Maldonado had come forward with her complaint earlier that same month; (2) defendant Root concluded, in a memo dated December 2, 2008 regarding the Maldonado situation, that both Maldonado and Powell appeared credible and that an outside investigator should be retained; (3) the District hired attorney Black to investigate the Maldonado claim and, because at that point Alexander had also come forward with her complaint, Black investigated the Alexander claim as well; (4) Black completed her investigation on February 9, 2009 and submitted her report, finding the women's complaints to be more credible than Powell's denials and recommending that the District follow the appropriate proceedings in a matter in which there is a finding of sexual harassment; (5) after receiving the Black report, the District suspended Powell, who never returned to work after February 2009, and began § 3020-a proceedings; (6) Black submitted a supplemental report in May 2009, based on Powell's claim that there were additional witnesses, and reached the same conclusions as in the earlier report; (7) the § 3020-a hearing officer ultimately found that Powell committed the acts complained of, and Powell was terminated. The bottom line is that Alexander complained about Powell in November 2008 and by February 2009 he was out of the school. The District exercised reasonable care, and the plaintiff has not raised any issue of material fact regarding that issue.
As set forth supra, Alexander alleges that Powell's harassing acts began in 2005 and continued until August 2008, but she did not complain until November 2008,
To the extent that fear of transfer kept Alexander from taking advantage of the sexual harassment policy and procedures sooner, the Second Circuit has held that general apprehension is insufficient to establish that a plaintiff's failure to take timely advantage of such a policy was reasonable. See Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2d Cir.2001). Further, while Alexander might have believed that Scott-Powell and Hall were transferred as punishment for raising sexual harassment issues, there is no evidence to support that conclusion. Indeed, the admitted facts show that Scott-Powell asked for and was pleased with her transfer. As to Hall, as noted earlier, there is no evidence that she ever complained that Powell sexually harassed her, only that a student had done so and she was not pleased with the way Powell handled the situation. Hall also apparently agreed to be reassigned and has since received tenure in her new position. The Second Circuit has also found that a general claim that a co-worker's complaint of sexual harassment was not taken seriously was insufficient as a matter of law to establish that the plaintiff's fear was reasonable. Id. at 246. a "credible fear must be based on more than the employee's subjective belief." Id.
As noted earlier, Alexander also states that she delayed reporting the alleged harassment because she was reluctant to see an African American man's reputation tarnished. Such reluctance, however well-intentioned, does not, however, avoid the finding that Alexander unreasonably delayed. She chose not to take advantage of the "preventive or corrective opportunities provided by the employer to avoid harm" and the District cannot be held liable under that circumstance.
I find that the District has established both prongs of the Faragher test and that the plaintiff has not raised any issues of material fact to prevent entry of summary judgment on the hostile work environment claim. Thus, that claim is dismissed as against the District pursuant to the plaintiff's Title VII claim and pursuant to the implied claim
The Faragher defense applies to both Title VII and the state law claim. See,
Alexander also makes a claim of quid pro quo sexual harassment under Title VII and the New York Human Rights Law. Quid pro quo sexual harassment occurs "when submission to or rejection of improper or unwelcome sexual conduct by an individual is used as the basis for employment decisions affecting such individual." Clarke v. Pacifica Foundation, WBAI, 2011 WL 4356085, *9 (E.D.N.Y. Sept. 16, 2011) (citations and internal punctuation marks omitted). "In addition to showing that she was subjected to unwelcome sexual advances, a plaintiff seeking to state a claim of quid pro quo sexual harassment must also demonstrate a tangible employment action, i.e., that an explicit... alteration[] in the terms or conditions of employment resulted from her refusal to submit to ... sexual advances." Id. "Tangible employment actions" include "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. (citing Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 604 (2d Cir.2006)).
Alexander appears to assert that Powell's attempts to kiss her, coupled with a suggestion that they could "work out" a complaint against her, his attempt to place her in the MARS program, and the District's planned transfer of her amount to "tangible employment actions." See DE[56-14] at 12-15. They do not. If a quid pro quo claim "involves only unfulfilled threats, it should be classified as a hostile work environment claim ... For a plaintiff to succeed on a quid pro quo claim, she must not only show that a threat was made but also that a tangible employment action, i.e., an explicit alteration in the terms or conditions of employment, resulted from her refusal to submit to the employer's sexual advances." Brown v. City of New York, 2011 WL 2693677, *6 (S.D.N.Y. July 11, 2011) (citations and internal punctuation omitted). Here, neither the placement in the MARS program nor the transfer ever actually occurred, and those incidents do not rise to the level of tangible employment actions in Alexander's quid pro quo claim against the District Defendants. The same is true of the proposed transfer, which was never effectuated. Further, there is no evidence whatsoever that the threat of transfer was in any way causally connected to anything Powell did or said. He was on suspension when the transfer was proposed and played no role in it.
The plaintiff argues that "Powell linked tangible job benefits to the acceptance or rejection of sexual advances, in that he made sexual advances to her, then said he could "work out" the adverse employment action." DE[56-14] at 15. But it is entirely
As a threshold matter, I note that the Complaint does not set forth a retaliation claim under either federal or state law. I will, however, address such a claim, since it is addressed by the movants and because, even if the plaintiff had expressly made such a claim, it would be dismissed on the record before the court, in that she did not suffer an adverse employment action. To demonstrate a prima facie Title VII retaliation claim, a plaintiff must show that: (1) she participated in a protected activity; (2) she suffered an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action. Holt, 95 F.3d at 130. Here, the protected activity is Alexander's complaint in November 2008. Alexander argues that after her complaint to the District, she was retaliated against "in that she was excluded from meetings, unfairly given write ups, her evaluations were being manipulated, and she was unfairly reprimanded for various other acts." DE[56-14] at 15-16. These events, assuming they happened, do not rise to the level of adverse employment actions for Title VII retaliation purposes.
An "adverse employment action" for Title VII claim purposes is a "materially adverse change in the terms and conditions of employment." Galabya v. New York City Bd. of Ed., 202 F.3d 636, 640 (2d Cir.2000). A change in working conditions is materially adverse if it is "more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. Examples are "a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation." Id. The employment action must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. The Supreme Court has included "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Notably, "not everything that makes an employee unhappy is an actionable adverse action." Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir.2002).
The proposed transfer does not qualify as an adverse action, because the mere threat of a transfer is not enough, and, even if it were, many courts have found that a lateral transfer without loss of salary or benefits does not support a Title VII claim. See, e.g., Gentile v. Potter, 509 F.Supp.2d 221, 242 (E.D.N.Y. 2007); Dillon v. Morano, 497 F.3d 247, 254 (2d Cir.2007). Further, reprimands that do not lead to materially adverse employment consequences are not actionable forms of retaliation. Gentile, 509 F.Supp.2d at 242; Regis v. Metropolitan Jewish Geriatric Ctr., 2000 WL 264336, *8 (E.D.N.Y. Jan. 11, 2000) (disciplinary memoranda and evaluations do not constitute adverse employment actions unless they affect "ultimate employment decisions such as promotion, wages, or termination"); Lucenti v. Potter, 432 F.Supp.2d 347, 364 (S.D.N.Y.2006) ("Reprimands, threats of disciplinary action, and excessive scrutiny do not constitute adverse employment actions ...").
Because the record shows that the plaintiff did not lose any seniority, salary or benefits because of the proposed transfer
The District Defendants next argue that Alexander's Notice of Claim was insufficient as to the pleaded state law claims and that those claims-for intentional infliction of emotional distress, negligent infliction of emotional distress and "respondeat superior" — must thus be dismissed.
As a threshold issue, the state law claims against the three individual District Defendants-Root, Clark-Snead and Spencer — must be dismissed as a matter of law because they are not named in the Notice of Claim. See Ex. NN. The only individual who is named is Darnel Powell. "`General Municipal Law § 50-e makes unauthorized an action against individuals who have not been named in a notice of claim ...'" Rateau v. City of New York, 2009 WL 3148765, *15 (E.D.N.Y. Sept. 29, 2009) (quoting Tannenbaum v. City of New York, 30 A.D.3d 357, 358, 819 N.Y.S.2d 4 (1st Dep't 2006)). To the extent the plaintiff intended a § 296 claim against the individual District defendants, that claim must also fail because they were not named in the Notice of Claim, and claims pursuant to the HRL, including § 296 claims, are subject to the Notice of Claim requirement. See Kushner v. Valenti, 285 F.Supp.2d 314, 316 (E.D.N.Y.2003); Scaggs v. New York Dep't of Educ., 2007 WL 1456221, *20 (E.D.N.Y. May 16, 2007) (also stating exceptions that are inapplicable here). The state law claims against the individual district defendants, to the extent they are set forth in the Second, Third and Fifth
The claims as against the District, however, are sufficient to satisfy the requirements of New York Municipal Law § 50-e, albeit barely. New York Education Law § 3813 mandates that no action may be brought against a school district unless its board of education has first been served with a notice of claim that complies with 50-e. The purpose of the notice of claim requirement is to afford the municipal entity or school district an "adequate opportunity to investigate the claim in a timely and efficient manner and, where appropriate, to settle claims without the expense and risks of litigation." Fincher v. County of Westchester, 979 F.Supp. 989, 1002 (S.D.N.Y.1997) (citing Brown v. New York City Transit Auth., 172 A.D.2d 178, 180, 568 N.Y.S.2d 54 (1st Dep't 1991)). The notice of claim requirements apply to tort claims brought as pendent claims in a federal civil rights action. Id. (citations omitted). Generally, the test of a notice of claim's sufficiency is "whether it includes enough information to enable the municipality to investigate the claim adequately... [and] [m]erely providing notice of the occurrence is not adequate to constitute notice of a particular claim." Id. (citations omitted) "The fact that a cause of action not mentioned in a notice of claim arises out of the same incident as enumerated claims `is not pivotal; rather the nature of the claim and the theory of liability are determinative.'" Id. at 1002-03 (quoting Wanczowski v. City of New York, 186 A.D.2d 397, 397, 588 N.Y.S.2d 1011 (1st Dep't 1992) (additional citations omitted)). "Any cause of action not directly or indirectly
I turn to a consideration of whether Alexander's Notice of Claim "indirectly mentioned" the infliction of emotional harm causes of action so as to give the District notice to investigate such claims. Alexander states in her Notice that by "virtue of the sexual harassment by the principal of the school in the School District where the Claimant works, and the retaliation of the principal and the School District, the Claimant has suffered loss of self esteem and emotional stress, has been subjected to a hostile work environment, retaliation ... and was involuntarily transferred from her position as a sixth grade teacher in the Westbury Middle School to an undesired position as a first or second grade teacher in an elementary school." Ex. NN, at ¶ 5. I find that her reference to "a loss of self esteem and emotional stress" indirectly suggests the negligent and intentional infliction of emotional distress causes of action as against the District, and those causes of action are not dismissed on the ground of insufficiency in the Notice of Claim although they are dismissed on other grounds.
The District argues that the claim for Intentional Infliction of Emotional Distress should be dismissed on other grounds, as well. I agree. To prevail on this claim, Alexander must prove that the defendants (1) engaged in extreme and outrageous conduct; (2) with the intent to cause severe emotional distress; (3) with a causal connection between the conduct and the injury; and (4) severe emotional distress. Perks v. Town of Huntington, 96 F.Supp.2d 222, 230 (E.D.N.Y.2000). There is no liability unless the conduct complained of "`has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.'" Id. at 230 (quoting Howell v. New York Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993)). Courts have "rarely recognized" a claim for intentional infliction of emotional distress in an employment context, and when they have, the claim also included a claim of sexual battery. Id. at 231 (citations omitted). Claims of sexual harassment and retaliatory conduct do not meet this stringent standard. Burrell v. City University of New York, 995 F.Supp. 398, 416 (S.D.N.Y.1998). The factual claims against the District Defendants do not even come close to the level needed to make out a claim of intentional infliction. Their behavior was not, as a matter of law, extreme or outrageous.
And, assuming for purposes of the District's motion that the allegations regarding Powell can be read to imply an allegation of sexual battery and that the claim for intentional infliction of emotional distress presents issue of material fact that must go to the jury, the claim could only stand against the District if it might be liable on a theory of respondeat superior. But it could not be found liable on that theory. As the plaintiff herself argues, an employer can be held liable for an employee's intentional torts if the employee was acting within the scope of his employment when he committed the tort. See DE[56-14] at 21 (citing Girden v. Sandals Int'l, 262 F.3d 195, 205 (2d Cir.2001)). Whether an employee was acting within that scope
The defendants next argue that the claim for negligent infliction of emotional distress should be dismissed. A cause of action for negligent infliction of emotional distress may only lie where a defendant owes a "special duty" to the plaintiff, and an employer does not owe a special duty to an individual employee, because it has an obligation to treat all employees in the same manner. Cucchi v. New York City Off-Track Betting Corp., 818 F.Supp. 647, 656 (S.D.N.Y.1993). The claim should be dismissed on that ground, and also because the plaintiff has abandoned the claim by her failure to oppose the District Defendant's argument that it should be dismissed
The District argues that the cause of action for respondeat superior should be dismissed as abandoned, which is true, but another ground also exists for its dismissal as a cause of action. Respondeat superior is not an independent cause of action, but a theory that must attach to an underlying claim. See Rateau, 2009 WL 3148765 at *15; Farb v. Baldwin Free School District, CV 05-596, DE[37] (E.D.N.Y. Mar. 3, 2006) (citing Harsco Corp. v. Segui, 91 F.3d 337 (2d Cir.1996)). Thus, to the extent that "respondeat superior" is set forth as an independent cause of action, it is dismissed.
The District argues that claims against the Board of Education must be dismissed as duplicative, because there is no legal distinction between the District and the Board under New York law. Although the District cites to definitions in state law that appear to support this argument, and the plaintiff relies on inadmissible hearsay in opposition to it, I will not dismiss on this ground. The District has presented no
Because all of the claims against the District Defendants are dismissed on separate grounds, I decline to consider their arguments in favor of qualified immunity.
I turn next to the motion for summary judgment by defendant Darnel Powell.
Individual defendant Darnel Powell also moves for summary judgment on all claims against him. DE[47]. In his citations to evidence, Powell relies on the exhibits submitted by the District Defendants. The plaintiff relies on her exhibits submitted in opposition to the District defendants' motion.
Alexander's counterstatement to Powell's 56.1 Statement contains unsupported denials similar to those in her counter-statement to the District Defendants' motion. Where evidence in opposition to Powell's statements is indicated, it is noted. The issue of whether Powell actually did or said the things Alexander accuses him of, allegedly amounting to sexual harassment and/or creating a hostile work environment is not at issue on this motion, although Powell does deny the allegations.
Powell correctly argues that, as an individual, he cannot be liable under Title VII. DE[47-5] at 2 (citing Sassaman v. Gamache, 566 F.3d 307, 315 (2d Cir.2009)). The plaintiff notes that she has withdrawn her Title VII claim against Powell and that claim is deemed dismissed.
With the Title VII claim abandoned, the remaining claims against Powell set forth in the Complaint are all based on state law. Powell argues that this court should decline to exercise supplemental jurisdiction over those claims. I will exercise that jurisdiction for purposes of deciding this motion for summary judgment, but decline to exercise it in regard to the remaining state law claims against Powell based on HRL § 296(1) and intentional infliction of emotional harm, as explained infra.
"Discrimination and retaliation claims brought under The New York Human Rights Law ("HRL") are evaluated identically to claims brought under Title VII, except in one notable respect." Maher v. Alliance Mortgage Banking Corp., 650 F.Supp.2d 249, 259 (citations omitted). While there can be no individual liability under Title VII, the HRL recognizes claims for individual liability brought against: (1) employers (N.Y. Exec. Law § 296.1) or (2) persons who aid, abet, incite, compel or coerce the commission of a violation by an employer (N.Y. Exec. Law § 296.6). Alexander appears to argue that Powell is potentially liable under either provision. I note as a threshold issue the unsettled state of the interpretation of § 296 in the state and federal courts, especially as to the applicability of aiding and abetting liability under § 296.6. I discuss those issues as they arise, infra.
The New York Court of Appeals has held that an individual may not be subject to suit as an employer under § 296.1 if he or she "is not shown to have any ownership interest or any power to do
Powell argues that, to the extent he is being sued under the HRL as Alexander's employer, the claim must be dismissed because he was not her employer. He argues that he did not have sole authority to hire and fire but could only make recommendations to the Superintendent; that the District, not he, controlled employee work schedules and conditions of employment; and that he did not determine the rate of pay for any employee. DE[46-5] at 4. In his main brief, he does not deny maintaining employee records, but says in his reply brief that he did not personally maintain any employment records. See DE[49] at 5. In opposition to these assertions, Alexander makes the factually inaccurate claims that "defendant Powell hired plaintiff and had the power to get her fired" and that he "had the power to control whether or not plaintiff received tenure and ultimately if she would be granted her coaching job." DE[48-3] at 4-5. Alexander was hired in 1993 and received tenure in 1995. Powell was hired in 2003, and clearly did not hire Alexander or control her tenure. Nor is there any indication that Alexander sought a coaching position. I assume those factual references pertain to Lisa Maldonado. They do not apply to Alexander, and Alexander does not point to any evidence that raises issues of material fact as to the economic reality issues pertaining to her.
Even assuming that her allegations about Maldonado-that Powell had the power to hire and fire and to control schedules and conditions of employment (and Powell himself does not comment on the factual inaccuracy of Alexander's argument)-apply equally to Alexander, she does not point to evidentiary support for those factual allegations. Powell, however, argues only that he did not have the "sole" authority to fire Alexander. See DE[47-5] at 4; DE[49] at 4. Rather, Powell maintains, he could only make a recommendation to the Superintendent, and the District made the final determination as to personnel actions. DE DE[47-3], Powell Decl., ¶ 12. This leaves open the possibility that he could have played some role in whether she was fired. Further, it is difficult to accept the bare allegation that the principal of a middle school did not have significant control over "conditions of employment." These allegations, based only on Powell's own
Alexander argues further that Powell is liable under section 296(6) of the Human Rights Law, which imposes liability on individuals who "aid, abet, incite, compel or coerce the doing of any of the acts forbidden" under that law, without the requirement that the individual be an employer. Construing that provision, the Second Circuit has found that a "defendant who actually participates in the conduct giving rise to a discrimination claim may be held personally liable." Tomka, 66 F.3d at 1317. Other courts, including the Second Department, have disagreed with Tomka, while the First Department does agree. Compare Trovato v. Air Express International, 238 A.D.2d 333, 655 N.Y.S.2d 656 (2d Dep't 1997) (no aiding and abetting liability); with Steadman v. Sinclair, 223 A.D.2d 392, 636 N.Y.S.2d 325 (1st Dep't 1996) (finding individual aiding and abetting liability). The majority of federal courts to consider the issue have found that Tomka is controlling law and have followed its holding, and the Second Circuit has adhered to its holding in later decisions. See Feingold v. New York, 366 F.3d 138, 161 n. 19 (2d Cir.2004) (recognizing disagreement in state courts and noting that "majority of courts that have considered the issue have affirmed the existence of a cause of action against individual defendants under the aid-or-abet provision of the NYSHRL" and citing cases).
I recognize that Tomka is controlling law in this District, and that courts in this District must read § 296(6) to allow for individual liability on the basis of aiding and abetting, a finding which I not only must follow, but with which I agree. This case, however, presents a situation not considered by Tomka — one in which the only individual defendant against whom the claim can be brought is the alleged primary harasser, and in which the employer, the District, is not liable pursuant to the Faragher defense. Thus, the issues presented are whether, under § 296: (1) an individual can aid and abet his own conduct, and (2) an individual can be liable under § 296(6) in the absence of the liability of an employer. Some courts have found that an individual can aid and abet his own behavior. See, e.g., Tully-Boone v. North Shore-Long Island Jewish Hosp. Sys., 588 F.Supp.2d 419, 427 (E.D.N.Y. 2008); Maher v. Alliance Mortgage Banking Corp., 650 F.Supp.2d 249, 262-263 (E.D.N.Y.2009). Other courts have ruled in the negative. See Hicks v. IBM, 44 F.Supp.2d 593, 600 (S.D.N.Y.1999). I am not inclined to agree that an individual can aid and abet himself, nor do I read Tomka to require or even suggest such a conclusion. Several individuals were involved in the Tomka matter, not one, and the court had no reason to consider the issue of whether an individual can aid and abet himself. I need not rule on the issue in order to dismiss Alexander's putative aiding and abetting claim, however, because the absence of any employer liability demands that result.
Like Title VII, § 296 is, in essence, an employment discrimination statute, not an individual liability statute, even though individuals can, as noted, be liable under some circumstances. "Importantly, since it is the employer's participation in the discriminatory practice which serves as the predicate for the imposition of liability on others for aiding and abetting, a plaintiff cannot prevail against an individual on her state claims unless she can first establish the liability of her employer." Pellegrini v. Sovereign Hotels, Inc., 740 F.Supp.2d 344,
Powell argues that deficiencies in Alexander's notice of claim require dismissal of her additional state law claims for negligent and intentional infliction of emotional distress. Plaintiff has withdrawn her negligent infliction of emotional distress claim. To the extent that Alexander has brought an intentional infliction of emotional distress claim against Powell in his official capacity as former principal, that claim need not be dismissed based on insufficiency of the Notice of Claim. Powell is expressly named in the notice, as is Alexander's emotional distress, and although she did not specify a cause of action for intentional infliction, I find that the Notice of Claim suffices, albeit barely, for that claim to survive
Powell's motion for summary judgment is granted as to all of the claims except the claims pursuant to § 296(1) and intentional infliction of emotional distress.
I will not exercise supplemental jurisdiction to consider the HRL § 296(1) claim against Powell, or the claim for intentional infliction of emotional harm against Powell in his individual capacity, both of which survive this motion. Under 28 U.S.C. § 1367(c), a district court "may decline to exercise supplemental jurisdiction over a claim ... if (1) the claim raises a novel or complex issue of State law ... or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." As discussed supra, the law regarding § 296 is far from settled. Although much of the controversy goes to § 296(6), I find that there is sufficient complexity in the application and interpretation of § 296(1) to make it more prudent for the claim to be decided by the state court. See Fiacco v. Christie's Inc., 2002 WL 257693, *3 (N.D.N.Y. Feb. 21, 2002) (declining to exercise supplemental jurisdiction over § 296(6) claim and citing strict holding in Patrowich that individuals are liable only if they have ownership interest or supervisory authority over plaintiff). Inasmuch as the § 296(1) claim must go to the state court, the additional state law claim must go as well.
The plaintiff moves to amend the complaint to "include a cause of action for Article 15 of the New York State Executive
"Rule 16(b)'s `good cause' standard governs motions to amend filed after the deadline the court has set for amending pleadings, rather than the more liberal standard set forth in Rule 15(a) for motions to amend generally." Bizouati v. City of New York, 2008 WL 753886, at *1 (E.D.N.Y. Mar. 19, 2008) (citing Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.2000)); see also Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003) (after entry of a scheduling order, "the lenient standard under Rule 15(a), which provides leave to amend `shall be freely given,' must be balanced against the requirement under Rule 16(b) that the court's scheduling order `shall not be modified except upon a showing of good cause'"). Here, the deadline was first 12/1/10, later extended to 1/12/11, and the motion was made on 3/11/11
The plaintiff argues that a change in the language of Rule 16(b)(4) in 2007 from the mandatory "shall not be modified except upon ... good cause" to "may be modified only for good cause and with the judge's consent" is "arguably more permissive." See DE[50-5] at 7. Prior to that change, given the mandatory language of Rule 16 that a scheduling order "shall not be modified," courts held that a motion must be denied unless the plaintiff demonstrated good cause for not making his motion to amend before the deadline. See, e.g., Lincoln v. Potter, 418 F.Supp.2d 443, 454 (S.D.N.Y.2006). The standard was that a "finding of good cause depends on the diligence of the moving party." Parker, 204 F.3d at 340; see also Grochowski, 318 F.3d at 86; Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 244 (2d Cir.2007) (noting that the primary consideration is whether the movant can demonstrate diligence). Good cause has been measured against the diligence of the party seeking to amend the pleading and has required the movant to establish that the deadline to amend the pleading could not be met despite due diligence. Grochowski, 318 F.3d at 86. The plaintiff, as noted, argues that these standards may have loosened, arguing that in Kassner, the Second Circuit required district courts to consider factors other than the plaintiff's diligence and "left open the possibility that amendments could be permitted even where a plaintiff has not been diligent in seeking an amendment." DE[50-5] at 7. But courts have always been free to consider factors other than diligence, for example, prejudice, even where they emphasized diligence,
Here, although the plaintiff recognizes the good cause standard in her moving brief and discusses at length the application of Rule 16 to motions to amend, she makes no effort in that brief to establish or identify any cause for her delay in moving to amend, let alone good cause. She does make some effort in her reply brief to provide an explanation for the delay, but I decline to consider arguments raised for the first time on a reply brief. See Harvey v. Bennett, 2009 WL 2568551, *4, n. 1 (E.D.N.Y. Aug. 19, 2009) (arguments raised for first time in reply brief need not be considered) (citing cases); Rowley v. City of New York, 2005 WL 2429514, *5 (S.D.N.Y. Sept. 30, 2005) (same). And, even taking the factual allegations about a change of counsel and difficult discovery deadlines into consideration, the result is the same. Parties are bound by actions of prior counsel, even in the unfortunate circumstance here regarding the prior counsel's health. To find good cause simply on the basis of new counsel would be "to allow a party to manufacture `good cause at any time simply by switching counsel.'" Glover v. Jones, 2006 WL 3207506, *4 (W.D.N.Y. Nov. 3, 2006); see also Holland v. Goord, 2010 WL 3946297, *3 (W.D.N.Y. Aug. 17, 2010); Davidowitz v. Patridge, 2010 WL 1779279, *4 (S.D.N.Y. Apr. 23, 2010). The plaintiff did not diligently pursue the amendment and has not shown good cause. Significantly, good cause may not be established where the facts underlying the claim were known to the plaintiff at the time the action was filed. See Parker, 204 F.3d at 341; Rush Indus., Inc. v. Garnier, LLC, 2006 WL 4122091, at *1 (E.D.N.Y. Dec. 15, 2006); Lincoln, 418 F.Supp.2d at 454. Here, the plaintiff knew all of the relevant facts and still delayed making the motion. Further, at this stage in the proceedings, where discovery is finished and summary judgment motions have been made and now decided largely in the defendants' favor, allowing amendments would be prejudicial. See Cahill v. O'Donnell, 75 F.Supp.2d 264, 279 (S.D.N.Y.1999). Finally, even if Alexander had established good cause and there would be no prejudice, the amendments she proposes would be futile, as discussed infra.
Rule 15(a) of the Federal Rules of Civil Procedure provides, in pertinent part, that "a party may amend [its] pleading ... by leave of court," and that "leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); see also Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir.1999) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). In making its determination, the court considers factors such as undue delay, prejudice to the defendants, and futility of the proposed amendments. See Foman, 371 U.S. at 182, 83 S.Ct. 227; MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 157 F.3d 956, 962 (2d Cir.1998); Harrison v. NBD, Inc., 990 F.Supp. 179, 185 (E.D.N.Y.1998). Although amendments are generally favored because "they tend to facilitate a proper decision on the merits," Blaskiewicz v. County of Suffolk, 29 F.Supp.2d 134,
Here, both of Alexander's proposed amendments are futile. The Proposed Amended Complaint adds, as a second cause of action against all defendants, a claim for "constitutional violations and redress under 42 U.S.C. Section 1983 Retaliation and Hostile Work Environment." DE[50], Ex. B, ¶¶ 60-77. As the District Defendants note, section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred." DE[53] (citing Baker v. McCollan, 443 U.S. 137, 156 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). Here, the text of the section 1983 cause of action does not specify the constitutional violation or other federal right allegedly suffered by the plaintiff. Alexander describes her new claims, stating that the proposed amended complaint would add a "State Cause of Action [under] Executive Law Section 296 and [a] 42 U.S.C. 1983 claim, for sexual harassment, hostile work environment, and retaliation." DE[50-6] at 6. But that language describes a Title VII claim, and a violation of Title VII cannot serve as the predicate constitutional or federal right for a section 1983 claim. A plaintiff may only concurrently assert a Title VII cause of action with a section 1983 cause of action "if some other law than Title VII is the source of the right alleged to have been denied." Saulpaugh v. Monroe Comm. Hosp., 4 F.3d 134, 143 (2d Cir.1993); Gierlinger v. New York State Police, 15 F.3d 32, 34 (2d Cir.1994) ("A Title VII plaintiff is not precluded from bringing a concurrent § 1983 cause of action, so long as the § 1983 cause of action is based on a distinct violation of a constitutional right.") Although the same factual allegations might, in some cases, support claims for violations of both Title VII and an independent constitutional right, that is not the case here. In her reply brief, the plaintiff states that she is making an equal protection claim, but raising that argument in the reply brief only is, as noted supra, not acceptable. And, even considering that claim, the proposed amended complaint is bare of the factual allegations regarding similarly situated individuals and membership in a protected class that are essential to an equal protection claim and such a claim would thus fail as futile. See, e.g., Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir.2000). Further, the necessity of proving the similarly situated individuals aspect of an equal protection claim would certainly require additional discovery, despite the plaintiff's claim that no "additional or different discovery" would be needed. DE[50-6] at 5. The need to start discovery again at this stage of the litigation would be prejudicial to the defendants in that it would cause them to expend significant
Alexander also seeks to add facts in support a section 296 claim. As the plaintiff notes, she is not attempting to add a new § 296 claim, since one was "already articulated," but to "strengthen" that claim. DE[52-1] at 1. I have interpreted the existing Complaint to contain section 296 claims against all defendants, as discussed at length supra, and find that the new facts would not change the dismissal of those claims, save for the § 296(1) claim against Powell, as a matter of law. The claim against the District defendants is futile as a result of their successful assertion of the Faragher defense and Alexander's failure to name the individual District Defendants in her Notice of Claim. A § 296(6) claim against Powell cannot stand because an individual cannot aid and abet himself and there is no employee liability on the part of the District. No new facts will change those findings and the claims are thus futile despite the newly alleged facts. If the plaintiff chooses to pursue her § 296(1) claim against Powell in state court, she can seek permission there to amend the complaint if need be.
To the extent, if any, that the plaintiff's proposed amended complaint seeks to bolster claims for retaliation or quid pro quo discrimination, they too would be futile, for the reasons set forth supra.
The plaintiff's motion to amend is denied for failure to show good cause and because the proposed new claims would be futile.
The Clerk of the Court is directed to enter judgment accordingly.
