Silva-Markus v. New York City Department Of Education

Background

Patricia Silva-Markus, a former high school guidance counselor, sued the New York City Department of Education and Tilsa Rodriguez-Gonzalez, identified as the principal of the High School for Contemporary Arts, in her official and individual capacities. Silva-Markus alleged discrimination and retaliation under the federal Age Discrimination in Employment Act (ADEA), the New York State Human Rights Law, and the New York City Human Rights Law.

According to the complaint, Rodriguez-Gonzalez asked Silva-Markus about her age and retirement plans in December 2014. Silva-Markus then alleged that Rodriguez-Gonzalez mistreated her in various ways, including moving her office, changing her job classification, removing her computer, requiring her to attend a workshop without reimbursement, convening disciplinary meetings, restricting her work activities, issuing an unsatisfactory rating, and causing her to be placed in an absent-teacher reserve assignment. Silva-Markus also alleged that she lost supplemental income, retired in June 2016, and received lower pension payments as a result.

Silva-Markus filed an age-discrimination charge with the Equal Employment Opportunity Commission on April 26, 2016, and filed this lawsuit on May 13, 2019. The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that most claims were outside the ADEA’s 300-day filing period and that the remaining allegations did not state a valid claim.

Statute of Limitations

The court held that ADEA claims based on acts occurring before July 1, 2015—300 days before Silva-Markus filed her administrative charge—were outside the applicable period. The court rejected Silva-Markus’s argument that earlier events were part of a continuing violation. It treated the alleged excessing, absent-teacher reserve placement, and unsatisfactory rating as separate acts rather than a continuing practice.

The court assumed, for purposes of the motion, that Silva-Markus did not learn of the unsatisfactory rating until February 2016, making a claim based on that rating timely for purposes of the court’s analysis. The court nevertheless concluded that the rating, standing alone, was not an adverse employment action for an ADEA discrimination claim. It also concluded that the absent-teacher reserve placement, standing alone, was not an adverse employment action. Any claim based on lost supplemental income accrued when Silva-Markus stopped participating in the programs in December 2014 and was therefore time-barred.

ADEA Discrimination Claim

The court dismissed the ADEA discrimination claim because Silva-Markus did not allege a timely adverse employment action. The court also rejected her hostile-work-environment and constructive-discharge theories. The pre-July 2015 conduct was outside the statutory period, and the complaint did not allege that her later work environment was sufficiently abusive or that her working conditions forced her to resign.

ADEA Retaliation Claim

The court concluded that Silva-Markus’s December 2014 complaints did not clearly communicate an objection to age discrimination and therefore did not qualify as protected activity under the ADEA. The court assumed that her June 2015 complaint to the Department of Education’s Office of Equal Opportunity qualified as protected activity because the defendants did not challenge that point.

The court held that the absent-teacher reserve placement was not an adverse action under the circumstances. It treated the unsatisfactory rating as potentially adverse for a retaliation claim, even though it was not adverse for the discrimination claim. The retaliation claim nevertheless failed because the complaint indicated that the alleged plan to force Silva-Markus out and issue an unsatisfactory rating began before her June 2015 complaint. The court therefore found no required causal connection between the protected activity and the challenged action.

Ruling

Judge Gardephe granted the defendants’ motion to dismiss. The court declined to exercise supplemental jurisdiction, meaning authority to hear related state-law claims, over the New York State Human Rights Law and New York City Human Rights Law claims. Those claims were dismissed without prejudice to refiling in state court. The court stated that any motion for leave to amend had to be filed by October 14, 2020.