Witcher v. New York City Department of Education

Background

Selena Witcher, proceeding without a lawyer, sued the New York City Department of Education, Collin Wolfe, Lorena Moreno, and Victoria Walters. Witcher was a former New York City public school teacher. She alleged that Wolfe and Moreno, school administrators, discriminated against her and retaliated against her after she requested and received permission to work remotely because of obesity during the COVID-19 pandemic. She also alleged that Walters, a union representative, failed to represent her properly.

Witcher asserted claims under Title I of the Americans with Disabilities Act, the New York State Human Rights Law, the New York City Human Rights Law, and theories of intentional or negligent infliction of emotional distress. Her allegations included disciplinary write-ups, reassignment to a first-grade special-education position, denial of tenure, discontinuation of her probationary employment, and later allegations concerning accusations of student abuse.

The DOE Defendants and Walters each moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not plead enough facts to state a legally plausible claim. Magistrate Judge Sarah Netburn recommended granting both motions. No party objected to the recommendation concerning Walters. Witcher objected to the recommendations concerning the DOE Defendants and asked for another opportunity to amend.

Claims Against Walters

The court adopted the recommendation to grant Walters’s motion to dismiss. The court explained that Walters was a union representative who had no ability to hire, fire, or direct Witcher. Witcher therefore did not plead facts showing that Walters qualified as an employer under the ADA or had power over her employment, evaluations, or assignments sufficient to support liability under state or city law.

To the extent Witcher intended to assert a claim that Walters breached a union representative’s duty of fair representation, the court adopted the recommendation that federal courts lack subject-matter jurisdiction over such claims brought by public employees against their unions and that individual union representatives are immune from personal liability for acts performed on the union’s behalf. Witcher stated that she voluntarily dropped Walters as a defendant.

ADA Discrimination

The court granted the DOE Defendants’ motion as to Witcher’s ADA discrimination claim. To state such a claim, a plaintiff must plausibly allege, among other things, that an adverse employment action was taken because of a disability. The court agreed with Judge Netburn that Witcher described a series of alleged criticisms, disciplinary actions, and employment consequences after she received a remote-work accommodation, but did not plead facts supporting an inference that those actions were motivated by her disability.

Witcher relied in part on a purported statement by Wolfe telling her to “watch out.” The court declined to consider the expanded versions of that allegation raised in her opposition brief and objections, including that Wolfe said he would come after her job. The court found that these allegations were raised late, were inconsistent with her earlier pleadings, and were not presented to Judge Netburn. It found no clear error in the recommendation that the discrimination claim be dismissed.

Failure to Accommodate

The court also granted the DOE Defendants’ motion as to the failure-to-accommodate claim. Witcher’s complaint identified a remote-work accommodation based on obesity, and the court noted that the Department of Education granted that accommodation. The court rejected Witcher’s attempt to base the claim on later requests to transfer because of anxiety and depression. The complaint did not adequately allege that those conditions were disabilities under the ADA, that the Department of Education knew they were disabilities, or that a transfer would have been a reasonable accommodation.

ADA Retaliation

The court granted the DOE Defendants’ motion as to the ADA retaliation claim. A retaliation claim requires a plaintiff to plausibly allege protected activity, the defendant’s knowledge of that activity, an adverse action, and a causal connection between the two. The court determined that Witcher’s general complaints about harassment, misconduct, and retaliation did not identify disability discrimination and therefore were not protected activity under the ADA. Her statements about anxiety and depression and her transfer requests likewise did not adequately allege either disability discrimination or a request for an ADA accommodation.

The court recognized that Witcher’s initial request for a remote-work accommodation was protected activity. But the complaint did not state when she made that request. Because the alleged adverse actions occurred at various times after the accommodation was approved, the court could not infer retaliation from timing alone. The court therefore adopted the recommendation to grant dismissal of the retaliation claim.

State and City Claims

After dismissing the federal claims, the court declined to exercise supplemental jurisdiction over Witcher’s remaining claims under New York State and New York City law. Supplemental jurisdiction is a court’s authority to hear related state-law claims alongside federal claims. The court followed the general practice of declining that jurisdiction when the federal claims are dismissed before trial.

Leave to Amend and Disposition

The court denied Witcher leave to amend again. It noted that she had filed four complaints, including the Third Amended Complaint, and had also offered new factual allegations in her opposition brief and objections. The court adopted Judge Netburn’s conclusion that further amendment would likely be futile and would cause undue delay and prejudice to the defendants. The court stated that the record showed Witcher had not acted in good faith in adding significant allegations only after the defendants and the magistrate judge identified pleading deficiencies.

The court adopted the Report and Recommendation, granted Walters’s motion to dismiss, granted the DOE Defendants’ motion to dismiss as to the ADA discrimination and retaliation claims, declined supplemental jurisdiction over the state and city claims, and denied leave to amend. The Clerk was directed to terminate the motions, close the case, and mail the order to Witcher.