Freud v. The New York City Department of Education

Background

Abraham Freud, initially represented by counsel and later proceeding without a lawyer, alleged that the New York City Department of Education and defendants Dorothy Collins, Rudy Giuliani, and Marjorie Dalrymple discriminated against him because he is an Orthodox Jewish man. He also alleged retaliation after he complained about alleged antisemitic treatment of him and alleged unequal treatment of his special-education students.

The amended complaint described events from 2015 through 2021, including comments about Jewish employees leaving early for religious observances, allegedly unfavorable evaluations and assignments, a disciplinary letter, classroom and equipment problems, denial of or exclusion from certain school resources and meetings, summer-school relocations, and assignments involving challenging classes and limited paraprofessional support. Freud also alleged that he complained in letters, filed a complaint with the Department of Education’s Office of Civil Rights, filed a charge with the Equal Employment Opportunity Commission, and brought this lawsuit.

Freud asserted claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983, the New York State Human Rights Law, the New York City Human Rights Law, and the First Amendment. The defendants moved to dismiss the amended complaint under the rule allowing dismissal when a complaint does not state a legally sufficient claim.

Timeliness and notice-of-claim ruling

The court held that Freud’s New York State and New York City Human Rights Law claims against the Department were barred because he did not timely file the notice of claim required by New York Education Law. The court assumed, without deciding, that pandemic-related executive orders extended the filing period through November 3, 2020. Even under that assumption, the court concluded that Freud’s June 9, 2021 notice was late.

The court also held that several claims were time-barred. Title VII claims based on acts occurring before April 12, 2019 were outside the 300-day period preceding Freud’s Equal Employment Opportunity Commission charge. Claims under Section 1983 and the state and city human-rights laws based on events before March 16, 2018 were outside the applicable three-year period. The court rejected Freud’s argument that the alleged events formed one continuing violation, finding that the complaint mainly described separate, discrete events rather than one continuing practice.

The court treated hostile-work-environment claims differently for timing purposes because those claims concern repeated conduct. It nevertheless considered the hostile-work-environment allegations insufficient on the merits.

Selective-enforcement and discrimination claims

The court dismissed the selective-enforcement claim because Freud did not adequately identify a similarly situated employee who received more favorable treatment. The court also found that he did not plausibly connect the alleged actions to his religion merely by identifying himself as Jewish or alleging that he was treated differently.

The court dismissed the religious-discrimination claims under Title VII, Section 1983, the New York State Human Rights Law, and the New York City Human Rights Law. It concluded that most of the alleged actions were not materially adverse employment actions—that is, actions causing a significant change in the terms or conditions of employment. The court viewed the alleged unfavorable assignments, disciplinary letter, exclusion from meetings, lack of equipment or passwords, and similar incidents as inconveniences or ordinary job-related assignments rather than sufficiently serious employment actions.

The court also found that Freud did not plead enough facts to support an inference that the defendants acted because of his religion. For the New York City law claims, which use a broader standard, the court still found that Freud had not shown that he was treated less well, at least partly for a discriminatory reason.

Hostile-work-environment claims

The court dismissed the hostile-work-environment claims under Title VII, Section 1983, and the state and city human-rights laws. It identified four potentially antisemitic comments by Collins over approximately four years, including statements that Jews “have it made” and a question about whether all Jewish employees left work early on Fridays.

The court held that these comments were infrequent and episodic and were not severe or pervasive enough to alter the conditions of Freud’s employment. It also found that the other alleged workplace problems did not plausibly show that the conduct changed his working conditions or interfered with his work performance. The court concluded that the allegations failed even under the more permissive standard applied to city-law claims.

Retaliation claims

The court dismissed Freud’s First Amendment retaliation claim. It held that his complaint about services and resources for his special-education students was made as part of his job as a special-education teacher, rather than as a citizen speaking on a matter of public concern. The court separately found that Freud did not plausibly connect any adverse employment action to that complaint.

The court also dismissed the retaliation claims under Title VII, Section 1983, the New York State Human Rights Law, and the New York City Human Rights Law. Freud identified letters, his Office of Civil Rights complaint, his Equal Employment Opportunity Commission charge, and this lawsuit as protected activities. The court found no sufficiently plausible retaliatory act following those activities. It also held that Giuliani could not be liable for retaliation because Freud alleged that Giuliani had left the school before the protected activities occurred.

The court found that the alleged delays, difficult class assignments, report-card tampering, work-from-home events, and other actions either were not materially adverse, were too distant in time from the protected activity, or were not plausibly connected to Freud’s complaints. For the city-law retaliation claims, the court also found that the alleged conduct did not appear likely to deter a reasonable worker from making a discrimination complaint, particularly because Freud continued to send complaints, filed agency charges, and brought the lawsuit.

Disposition

The court did not allow another amendment. It noted that Freud had already amended the complaint after receiving notice of the defendants’ arguments and had been told that the amendment would be his last opportunity to amend in response to those arguments.

Judge Mary Kay Vyskocil granted the defendants’ motion to dismiss. The court dismissed Freud’s amended complaint with prejudice and directed the clerk to terminate the motion and close the case.