Fierro v. The City of New York, Department of Education

Background

Joseph Fierro, a teacher employed by the New York City Department of Education, alleged that the Department retaliated against him for reporting student-safety issues and for filing earlier lawsuits alleging age and disability discrimination. He also alleged that school employees sexually harassed him, that school officials failed to respond adequately to his complaints, and that the Department repeatedly denied him assistant-principal and principal positions.

The amended complaint asserted First Amendment and Fourteenth Amendment retaliation claims, a Section 1983 gender-discrimination claim against the Department of Education, claims under the New York State Human Rights Law and New York City Human Rights Law, and aiding-and-abetting claims against Tasha Ferguson. Fierro had withdrawn his Title VII claim before the motion was decided. Defendants moved under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal for failure to state a legally sufficient claim, of all claims except the sexual-harassment and hostile-work-environment claims against Ferguson.

First Amendment Retaliation

The court granted defendants’ motion to dismiss Fierro’s First Amendment retaliation claim. A public employee generally speaks as a citizen, rather than as part of the employee’s official duties, only when the speech is outside the employee’s job responsibilities. The court concluded that Fierro’s reports about student abuse, endangerment, violence, and other school-safety issues were made within the duties of his work as an assistant principal. Because those reports were not protected First Amendment speech under that rule, the retaliation claim could not proceed.

Fourteenth Amendment Retaliation

The court denied dismissal of Fierro’s Fourteenth Amendment retaliation claim to the extent it was based on his earlier lawsuits alleging age and disability discrimination. Under binding Second Circuit precedent, retaliation claims based on complaints of discrimination may be brought under the Equal Protection Clause through Section 1983. The court interpreted that precedent as allowing complaints about discrimination even when the discrimination involves age or disability, which are not treated as suspect or quasi-suspect classifications under the Equal Protection Clause.

Fierro adequately alleged the other required parts of the claim at the pleading stage. He alleged that the Department repeatedly denied him promotions and that an interviewer’s reference to his “history at District 75” could plausibly refer to his earlier discrimination lawsuits. The court treated that allegation as sufficient to plead a causal connection between the lawsuits and later employment actions. The court rejected, however, a Fourteenth Amendment retaliation theory based on Fierro’s student-safety complaints because it would duplicate the dismissed First Amendment claim.

Section 1983 Gender-Discrimination Claim

The court granted dismissal of Fierro’s Section 1983 gender-discrimination claim against the Department of Education. A municipality may be liable under Section 1983 only when an official policy or custom caused the constitutional violation. Fierro relied on a failure-to-train or failure-to-supervise theory, but the court found his allegations conclusory. He did not provide sufficient factual detail identifying a training deficiency or showing deliberate indifference by municipal policymakers.

The court did not dismiss the individual sexual-harassment or hostile-work-environment claims against Ferguson because defendants had not moved to dismiss those claims.

New York Claims and Aiding-and-Abetting Claims

The court declined to decide at that stage whether Fierro’s New York State and New York City Human Rights Law claims were timely or adequately pleaded. The court noted the parties’ arguments concerning the one-year limitations period and the requirement that a notice of claim be filed within 90 days for claims against the Department of Education. It declined to consider the notices of claim attached to defendants’ motion because they were not referenced in or integral to the amended complaint, and the court could not take judicial notice of them based on the record presented.

Because defendants had presented material outside the pleadings, the court converted the timeliness portion of the motion into a motion for summary judgment and gave the parties 21 days to submit materials concerning those limited issues. The court likewise deferred consideration of Fierro’s aiding-and-abetting claims against Ferguson because those claims depended on whether the Department could be held liable under the state and city human-rights laws.

Disposition

The court granted in part and denied in part defendants’ motion to dismiss. It granted dismissal of the First Amendment retaliation claim and the Section 1983 gender-discrimination claim. It denied dismissal of the Fourteenth Amendment retaliation claim. The court granted Fierro leave to replead the dismissed claims and stated that it would set a filing deadline in the order resolving the timeliness of the state and city claims.