Silva-Markus v. New York City Department Of Education

Background

Patricia Silva-Markus, a former high school guidance counselor, asserted claims against the New York City Department of Education and Tilsa Rodriguez-Gonzalez under the Age Discrimination and Employment Act (ADEA), the New York State Human Rights Law, and the New York City Human Rights Law. She alleged that Rodriguez-Gonzalez questioned her about her age and retirement plans, harassed her, reassigned her duties, issued disciplinary notices, gave her an unsatisfactory annual rating, and contributed to her placement in the absent-teacher pool. Silva-Markus also alleged that these events caused her to lose work opportunities, incur parking expenses, retire earlier than planned, and receive lower pension payments.

The court had previously granted defendants’ motion to dismiss. Silva-Markus then moved to amend her complaint. The proposed amended complaint added allegations about the consequences of the unsatisfactory rating, her placement in the absent-teacher pool, her work assignments, parking costs, and her inability to obtain certain later work. Magistrate Judge Sarah L. Cave recommended denying the motion to amend, and Silva-Markus objected.

Court’s analysis

The court reviewed the challenged portions of Judge Cave’s report and recommendation and otherwise reviewed the report for clear error. It explained that amendment may be denied when it would be futile—meaning the proposed claims could not survive a motion to dismiss.

Timeliness. The court concluded that the proposed amended complaint did not add new discriminatory or retaliatory events within the applicable 300-day period before Silva-Markus filed her charge with the Equal Employment Opportunity Commission. The court therefore considered only the alleged unsatisfactory rating, excessing, placement in the absent-teacher pool, and constructive discharge. The court treated the rating as timely because Silva-Markus alleged that she did not learn about it until later.

ADEA discrimination. The court held that the proposed complaint did not allege a materially adverse employment action for purposes of age discrimination. It found the alleged consequences of the unsatisfactory rating too speculative because Silva-Markus did not allege that she sought and was denied per-session, summer, permanent, or per-diem work after learning of the rating. The court also found that parking expenses and changed assignments in the absent-teacher pool, without an alleged reduction in pay, loss of benefits, or another significant material harm, did not qualify as adverse employment actions for this claim.

Hostile work environment and constructive discharge. The court found that the proposed complaint did not allege hostile conduct occurring on or after July 1, 2015, and did not allege facts showing that Silva-Markus experienced a hostile work environment in the absent-teacher pool that forced her to retire. Because the proposed complaint did not adequately allege a hostile work environment, the related constructive-discharge claim also remained deficient.

ADEA retaliation. The court found that the proposed complaint did not indicate that Silva-Markus’s December 2014 complaint to Rodriguez-Gonzalez concerned age discrimination. It therefore treated her June 2015 complaint to the Department of Education’s Office of Equal Opportunity as the only alleged protected activity. The court recognized that the unsatisfactory rating could qualify as an adverse action under the less demanding retaliation standard, but found no causal connection between that rating and the June complaint. The disciplinary notices preceding the complaint instead supported the inference that Rodriguez-Gonzalez had already intended to remove Silva-Markus and give her an unsatisfactory rating. The court also found that the loss of free parking was too minor to qualify as a materially adverse retaliation.

State-law claims. Because the proposed complaint did not plausibly state a federal claim, the court declined to exercise supplemental jurisdiction over the New York State and New York City claims.

Disposition

Judge Paul G. Gardephe adopted the report and recommendation and denied Silva-Markus’s motion to amend. The clerk was directed to terminate the motion and close the case. The order does not state that the motion was denied with or without prejudice.

Date note

The opinion is dated March 10, 2022, while the supplied case metadata lists March 11, 2022 as the filing date.