Herz v. City Of New York

Background

Alan Herz, a tenured teacher employed by the Board of Education of the City School District of the City of New York, sued the City of New York, the Board of Education, the New York City Office of Special Investigations, the New York City Office of Equal Opportunity and Diversity Management, and several individuals. He asserted defamation, age discrimination under the New York State Human Rights Law, negligence, negligent and intentional infliction of emotional distress, fraud, and due-process claims under 42 U.S.C. § 1983 and the New York Constitution.

The complaint concerned statements Herz allegedly made to students in 2013 and 2014, an investigation by the Office of Equal Opportunity and Diversity Management, disciplinary charges, Herz’s reassignment in 2017, and newspaper articles published in May 2017 that included statements substantiated by that office. Herz alleged that Defendants reported the statements to the media and failed to return him to the classroom. He filed notices of claim in March 2019 and sued in New York state court in February 2020. Defendants removed the case to federal court and moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint adequately states a legal claim.

Rulings on the Claims

Claims against the City of New York. The court dismissed all claims against the City because the City and the Board of Education are separate legal entities, and Herz did not allege that any defendant was employed by the City or that the City itself took the challenged actions.

Claims against Board of Education subdivisions. The court dismissed all claims against the New York City Office of Special Investigations and the Office of Equal Opportunity and Diversity Management because, under New York law, subdivisions of the Board of Education lack the capacity to be sued separately from the Board.

Age-discrimination claim against the Board of Education. The court dismissed Herz’s New York State Human Rights Law claim against the Board because he did not timely serve the required notice of claim. The court determined that the alleged discriminatory act was his reassignment in March 2017, while he did not file a notice of claim until March 2019. It rejected his argument that his continued placement in a reassignment center extended the accrual date or created a continuing violation, and it found no basis to waive the notice requirement based on a public interest.

Tort and fraud claims. The court dismissed Herz’s negligence, negligent and intentional infliction of emotional distress, and fraud claims against the remaining defendants because he did not timely file the required notice of claim. The court determined that these claims arose, at the latest, when he was reassigned or when the statements were published.

Defamation. The court dismissed the defamation claim as barred by New York’s one-year limitations period. It rejected Herz’s argument that a three-year period applied because he characterized the claim as arising under § 1983. The court also stated that, even if timely, the claim would fail because Herz did not allege facts showing that the statements reported to the media were fabricated; the underlying charges had been substantiated and later dismissed for untimeliness, not falsity.

Federal and New York constitutional claims. Herz alleged due-process violations under § 1983 and the New York Constitution, including a claim that the Board had a policy or practice of removing tenured education employees. The court dismissed these claims because New York procedures under Civil Practice Law and Rules Articles 75 and 78 provided an adequate post-deprivation remedy. The court also found that Herz had not adequately pleaded a municipal policy or practice, or the different treatment based on a protected characteristic needed for an equal-protection claim.

Age-discrimination claim against individual defendants. The court dismissed Herz’s New York State Human Rights Law claim against the individual defendants. It found that he had not pleaded his age or proximity to retirement, age-related comments, younger employees receiving better treatment, older employees facing similar treatment, or other facts supporting a plausible inference that age motivated the challenged actions.

Claims against Howard Friedman. Although counsel for Friedman had not appeared and the court did not resolve the service dispute, it dismissed the claims against Friedman for failure to state a claim because the same reasoning applied to the claims against the other individual defendants.

Disposition

Judge J. Paul Oetken granted Defendants’ motion to dismiss. The Clerk was directed to close the motion at Docket Number 7 and close the case. The opinion does not state whether the dismissals were with or without prejudice.