Rettino v. New York City Department of Education

Background

Robert L. Rettino, proceeding without a lawyer, sued the New York City Department of Education (DOE), Darlene Teron, and Steven Nyarady. He alleged age discrimination, retaliation, and a hostile work environment under the federal Age Discrimination in Employment Act (ADEA), the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL).

Rettino alleged that he worked for the DOE beginning in 2005 and worked at P.S. 97 from 2006 to 2017. He claimed that Principal Katheleen Bornkamp violated evaluation procedures because of his age, ignored complaints, filed false disciplinary and criminal charges, and engaged in other harassment. After he became a substitute teacher in the Absent Teacher Reserve in 2017, he alleged that school administrators created additional false charges, which prevented him from returning to P.S. 97 or being hired at P.S. 481. He also alleged that he was denied an interview for a teaching position in June 2018 because of his age.

Rettino further alleged that he was retaliated against after filing a complaint with the New York State Division of Human Rights in August 2018. He claimed that he was falsely accused of using corporal punishment in February 2019 and received disciplinary charges in April 2019 seeking to terminate his employment. He filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) on August 3, 2018, received a notice allowing him to sue on May 17, 2019, and filed this action on June 6, 2019.

Rule 12(b)(6) standard

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. The court accepted the complaint’s factual allegations as true, drew reasonable inferences for Rettino, and read his self-represented complaint liberally. But the court explained that it could not treat legal conclusions as facts or invent allegations that Rettino had not pleaded.

ADEA claims

The court dismissed the ADEA claims against Teron and Nyarady because individuals cannot be held personally liable under the ADEA.

The ADEA generally required Rettino to file his EEOC charge within 300 days of the alleged discriminatory conduct. Because he filed the charge on August 3, 2018, the court held that alleged conduct before October 7, 2017, was time-barred. Rettino’s employment at P.S. 97 ended in May 2017, so his claims based on conduct there were dismissed.

The court held that Rettino’s ADEA claims based on events after October 7, 2017, were timely, but did not contain enough facts to proceed. The court dismissed his age-discrimination claim concerning the DOE’s failure to interview him for a June 2018 position because the complaint did not plausibly connect his age to the lack of an interview.

The court also dismissed his retaliation claim. Rettino alleged that the DOE’s accusation of corporal punishment and later disciplinary charges were retaliation for his August 2018 state human-rights complaint. However, he did not expressly allege a causal connection between the complaint and those actions. The alleged events occurred six and eight months after the complaint, which the court held was too long to establish causation based only on timing.

The court dismissed the hostile-work-environment claim. It held that the timely allegations involved only the failure to grant an interview and the alleged retaliation, and that Rettino did not provide facts showing discriminatory comments or other conduct sufficiently frequent, severe, threatening, or humiliating to create a hostile work environment. Because he did not allege a continuing discriminatory practice after October 7, 2017, the court also declined to apply the continuing-violation doctrine to revive earlier allegations.

NYSHRL and NYCHRL claims against the individual defendants

The court dismissed the claims against Teron and Nyarady under the NYSHRL and NYCHRL without prejudice. Those laws can impose individual liability when an individual participates in discriminatory conduct or aids and abets it. The court held that Rettino did not allege that Nyarady participated in the alleged charges involving deleted photographs. It also held that he did not allege that Teron took action concerning the corporal-punishment accusation, which the complaint said had been backdated by Assistant Principal Candice Pantano. The complaint also did not connect Teron or Nyarady to Bornkamp’s earlier alleged conduct. Because Rettino had not adequately alleged an underlying discrimination, retaliation, or hostile-work-environment claim, he also had not established aiding-and-abetting liability.

NYSHRL and NYCHRL claims against the DOE

The court dismissed all NYSHRL and NYCHRL claims against the DOE because Rettino did not allege compliance with New York’s notice-of-claim requirement. That requirement generally calls for a written, verified claim to be presented to the school district’s governing body within three months after the claim arises. Although Rettino alleged that he filed an EEOC charge, he did not allege that he served it on the district’s governing body. The court therefore held that the EEOC charge did not substitute for the required notice of claim.

Disposition

Judge John G. Koeltl granted the motion to dismiss. The complaint was dismissed without prejudice to Rettino’s ability to file a second amended complaint. The court granted him leave to replead claims alleging age discrimination, retaliation, and a hostile work environment by the DOE under the ADEA and by the individual defendants under the NYSHRL and NYCHRL. The deadline for filing the second amended complaint was September 18, 2020.