Lopez v. New York City Department of Education

Background

Perry Lopez, proceeding without a lawyer, sued the New York City Department of Education (DOE), P.S. 46 Principal Jennifer Ade, and Assistant Principal Nitza Bellamy. The opinion identifies the individual defendants as Jennifer Alexander-Adé and Nitza Gonzalez. Lopez alleged age discrimination and retaliation under the Age Discrimination in Employment Act (ADEA), and retaliation under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973.

Lopez alleged that younger teachers received lead-teacher opportunities even though he believed he was more experienced and qualified, and that he received more difficult student assignments. He also alleged that he was investigated and disciplined after removing a student from his classroom during an October 2016 incident. He received disciplinary charges under New York Education Law § 3020-a, was suspended for 15 days without pay, and was removed from P.S. 46 and assigned to the Absent Teacher Reserve pool. Lopez also alleged that he repeatedly complained about special-education requirements, student safety, and related school conditions.

Timeliness and exhaustion

The court rejected the defendants’ arguments that the claims were untimely or improperly brought without completing required administrative procedures. The court concluded that the ADEA claims were not time-barred for purposes of the motion because the alleged retaliatory conduct and potentially relevant promotion events could have occurred within the applicable period. It also concluded that the ADA and Rehabilitation Act claims were not time-barred and were not barred by a failure to exhaust administrative remedies.

ADEA age-discrimination claim

The court treated Lopez’s allegations as asserting both a failure-to-promote theory and a disparate-treatment theory. The failure-to-promote claim failed because Lopez did not identify particular lead-teacher positions for which he applied, explain how he applied, or allege that he was rejected from specific positions. The court stated that any amended claim should identify the positions, when they were available, when Lopez sought them, whom he contacted, and what responses he received.

The court found that Lopez plausibly alleged some adverse employment actions, including the investigation, disciplinary charges, and unpaid suspension. But it concluded that he did not plausibly allege that age was the “but-for” cause of those actions. His allegations about younger teachers did not show that those employees were similarly situated in all important respects, and the complaint and attached emails did not provide facts suggesting age-based intent. The court therefore dismissed the ADEA discrimination claim.

ADEA retaliation claim

The court dismissed Lopez’s ADEA retaliation claim because his complaints concerned student treatment and safety, special-education requirements, and alleged misconduct—not opposition to age discrimination. The court explained that the ADEA protects complaints about age discrimination and is not a general whistleblower law.

ADA and Rehabilitation Act retaliation claims

The court concluded that some of Lopez’s complaints about the safety and treatment of special-education students, special-education compliance, individualized education plans, and student placement qualified as protected activity under the ADA and Rehabilitation Act. Protected activity means conduct opposing discrimination or violations covered by those statutes.

Nevertheless, the court dismissed the retaliation claims because Lopez did not plausibly allege that the defendants knew about many of the complaints or that the complaints caused the adverse employment actions. Some complaints were sent to the teachers’ union with a statement that the information would not be shared with DOE personnel without approval. The court also found that the disciplinary process had begun before several of Lopez’s complaints, weakening any inference that the complaints caused the discipline. The court separately stated that the ADA and Rehabilitation Act claims against the individual defendants were barred because individuals cannot be held personally liable under those statutes, and those claims were redundant of the claims against the DOE.

Disposition

Judge Ronnie Abrams granted the defendants’ motion to dismiss. The court dismissed Lopez’s claims against the individual defendants with prejudice. Because Lopez was proceeding without a lawyer, the court allowed him one final opportunity to amend his claims against the DOE. Any amended ADEA claim had to provide specific promotion details and facts supporting an inference of age discrimination. Any amended ADA or Rehabilitation Act claim had to provide facts supporting a causal connection between Lopez’s advocacy for special-education students and the alleged adverse employment actions. The court set September 28, 2020, as the deadline for a second amended complaint.