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United States District Court, D. New Jersey
May 5, 2005.
ROBERT LENOX, Plaintiff,
SCOTTSDALE INSURANCE CO., Defendant.
THIS MATTER comes before the Court on cross-motions by
Plaintiff and Defendant for Summary Judgment (docket items 10 and
11). The Court having considered the papers submitted by the
parties, and for good cause shown, grants Defendant's Motion and
denies Plaintiff's Motion for the reasons set forth below.
On or about March 8, 2004, Plaintiff Robert Lenox filed a
declaratory judgment action in the Superior Court of New Jersey,
Law Division, Ocean County, New Jersey. Defendant Scottsdale
Insurance Company filed a Notice of Removal in the United States
District Court for the District of New Jersey on or about May 12,
2004, on diversity jurisdiction grounds. On or about March 23,
2005, both Plaintiff and Defendant filed Motions for Summary
Judgment, which the Court now considers. II. UNDISPUTED FACTS
Plaintiff Lenox owns a home in Brick, New Jersey. Purchasers of
homes in lots at Nejecho Beach are eligible to become members of
the Nejecho Beach Club ("Club"), (Nejecho Beach Club Cert. of
Incorp., at 4), and at the time Plaintiff purchased his home in
2000, he joined the Club. (Pl.'s Dep. at 12, lines 16-20.) At the
time, club membership dues included an initiation fee of $125.00
and annual dues of approximately $75. (Id. at 13, lines 10-18.)
Annual dues are currently approximately $125.00 per member, and
the club membership includes 52 households. (Sullivan Dep. at 16,
lines 8-18.) Member dues are used to pay Club operating expenses,
including taxes, office supplies, and the insurance policy
described below. (Id. at 15, lines 10-24.)
Nejecho Beach Club holds a "Commercial General Liability
Coverage" insurance policy ("Policy") issued by Scottsdale
Insurance Company. (Id. at 15, lines 21-24; Def.'s Ex. D & E.)
The Club is the only named insured and additional coverage is
provided to officers and directors of the Club while acting in
their official duties. (Ins. Policy, located at Def.'s Ex. E.)
The Policy includes an additional insured endorsement entitled
"Additional Insured Club Members." (Policy, Pl.'s Ex. J, at 7.)
The provision "modifies insurance" provided under the general
liability coverage of the Policy. (Id.). It reads as follows:
"WHO IS AN INSURED (Section II) is amended to include as an
insured any of your members, but only with respect to their
liability for your activities or activities they perform on your
behalf." (Id.) The terms of this provision are not defined.
On June 30, 2001, Plaintiff went to the Club with his
girlfriend and other friends, including Andrew Veloce, to "enjoy
the beach, to drink some beer and have a good time and play some
horse shoes and swim." (Pl.'s Dep. at 62, lines 6-16.) While at
the Club, Plaintiff jumped in the water off of a bulkhead. (Id., at 81, lines 21-25.) When
Plaintiff jumped, he made contact with Mr. Veloce's body, which
resulted in Mr. Veloce falling into the water. (Id., at 88,
lines 10-19; 91, lines 11-21.) Mr. Veloce landed headfirst in the
water, and suffered a fracture of his C3 vertebrae. (Veloce Dep.
at 36, lines 12-14; 43, lines 6-8.)
Subsequently, on or about June 30, 2003, Mr. Veloce initiated a
personal injury lawsuit against Plaintiff Lenox and the Nejecho
Beach Club in the Superior Court of New Jersey, Law Division,
Ocean County. Following questions as to indemnification for any
resulting liability in the underlying personal injury lawsuit,
the instant action was filed by Plaintiff Lenox against the
Club's insurance carrier, Scottsdale, in Superior Court of New
Jersey. The action was then removed by Defendant to this Court.
Both parties have filed Motions for Summary Judgment, which the
Court now considers.
A party seeking summary judgment must "show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366
(3d Cir. 1996). In deciding whether there is a disputed issue of
material fact, the Court must view the underlying facts and draw
all reasonable inferences in favor of the non-moving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Pennsylvania Coal Ass'n v. Babbitt,
63 F.3d 231, 236 (3d Cir. 1995). The threshold inquiry is whether
there are "any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be
resolved in favor of either party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). Once the moving party has properly supported its showing of no
triable issue of fact and of an entitlement to judgment as a
matter of law, the non-moving party "must do more than simply
show that there is some metaphysical doubt as to material facts."
Matsushita, 475 U.S. at 586; see also Anderson,
477 U.S. at 247-48. The non-moving party must "go beyond the pleadings and
by [its] own affidavits, or by the `depositions, answers to
interrogatories, and admissions on file,' designate `specific
facts showing that there is a genuine issue for trial.'"
Celotex, 477 U.S. at 324; Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) ("to raise a
genuine issue of material fact . . . the [non-moving party] need
not match, item for item, each piece of evidence proffered by the
movant," but rather "must exceed the `mere scintilla'
threshold"), cert. denied, 507 U.S. 912 (1993).
At issue in this case is to what extent Nejecho Beach Club
members are covered under the Policy held by the Club, and more
specifically, whether the Policy covers any liability attributed
to Plaintiff Lenox for the injuries sustained by Andrew Veloce on
June 30, 2001. The primary argument between the parties focuses
on the Additional Insured Endorsement of the Club's Policy and
its terms. Plaintiff argues that the terms of this provision
include his activities at the Club on June 30, 2001, and as such
cover any liability for Mr. Veloce's injuries. Defendant,
however, asserts the provision is more limited and does not
encompass the breadth of activities suggested by Plaintiff. For
the reasons discussed below, the Court finds the terms of the
endorsement unambiguous and declines to read the provision to
include Plaintiff's activities and actions on the day in
question. A. Ambiguity of the Endorsement
This Court is asked to interpret the terms of the additional
insured endorsement, which sets forth coverage under the
Scottsdale Policy, and is the center of the dispute between the
parties. The "Additional Insured Club Members" provision reads
as follows:
WHO IS AN INSURED (Section II) is amended to include
as an insured any of your members, but only with
respect to their liability for your activities or
activities they perform on your behalf.
Plaintiff acknowledges that the additional insurance coverage
provided to Club members is limited to Club "activities" or
activities performed "on behalf of" the Club. However, Plaintiff
argues that without definition, these phrases are unclear and
ambiguous such that the limitations of coverage under the Policy
for members is uncertain and requires interpretation. Further,
Plaintiff notes that when an insurance policy is ambiguous, the
ambiguity is resolved against the insurer. Morag v. Continental
Ins. Co., 375 N.J. Super. 56, 61 (App.Div. 2005); see also
Fed. Home Loan Mortg. Corp. v. Scottsdale Ins. Co.,
316 F.3d 431, 444 (3d Cir. 2003) ("New Jersey Courts apply principles of
liberal construction in examining insurance policy language . . .
tak[ing] a broad and liberal view so that the policy is construed
in favor of the insured.") Therefore, Plaintiff urges this Court
to read the provision as ambiguous and then suggests various
avenues for interpretation, including the Club Constitution and
By-Laws, and his own expectations as a due-paying member. Using
these means for interpretation, Plaintiff argues that the
provision reads in favor of coverage for liability stemming from
Mr. Veloce's accident. Defendant argues that the plain language of this provision is
clear and unambiguous, demonstrating that the Club and its
insurer did not intend to extend unlimited coverage to members.
As such, Defendant asks the Court to apply the plain and ordinary
meaning of the words. Defendant insists that the endorsement
grants only limited coverage under narrow circumstances of
activities of the Club or on the Club's behalf, and as such, this
Court only need determine whether Plaintiff's activities on June
30, 2001, fall within these limitations.
In New Jersey, "ambiguity exists in an insurance contract where
the phrasing of the policy is so confusing that the average
policyholder cannot make out the boundaries of coverage."
Resolution Trust Corp. v. Fidelity & Deposit Co., 205 F.3d 615,
643 (3d Cir. 2001). (citation and internal quotation marks
omitted); see also Weedo v. Stone-E-Brick, Inc.,
81 N.J. 233, 247 (1979). In the present case, this Court sees nothing so
confusing about the terms used in the additional insured
endorsement. The actual words in question "your activities" and
"activities they perform on your behalf" are simple and easy to
understand in their own right and easily understood within the
context of the Policy. The Court declines Plaintiff's invitation
to "torture the language" of this Policy such to "create
ambiguity where none exists." Resolution Trust Corp.,
205 F.3d at 643.
B. Activities under the Endorsement
Finding no ambiguity, the Court turns to the endorsement to
determine its meaning and scope using the plain and ordinary
language of the provision. The limiting terms of the provision,
"only with respect to," make clear that the Policy is not
intended to cover every member pursuit at the Club. Exclusions in
insurance contracts are to be "narrowly construed," but if that
exclusion is "specific, plain, clear, prominent, and not contrary
to public policy," it should be enforced as written. Nav-Its, Inc. v. Selective Ins.
Co., 869 A.2d 929 (N.J. 2005) (pinpoint not yet available). The
provision does not say "all" activities, "member" activities, or
activities "on Club property." Indeed substituting the word
"Club" for "your" and the word "members" for "they," the
provision reads: "any of the Club's members, but only with
respect to members' liability for Club activities or activities
members perform on the Club's behalf." Plaintiff essentially asks
the Court to interpret this provision in such a way that the
limiting language is irrelevant. Plaintiff argues that his
presence at the Club, "fostering a sense of community with other
members, in furtherance of the . . . Club's purpose" is
sufficient to be a Club activity. Plaintiff asserts that if the
insurer wanted to make the scope of coverage clear, it could have
defined the activities. Neither of these arguments is compelling.
Indeed, the Court does consider the limiting language in this
provision sufficient to define the scope of coverage, and also
finds that the words within the provision articulate specific
situations where coverage would be invoked. Moreover, Plaintiff's
argument that "fostering a sense of community" and "good-will"
are activities intended to be covered under this provision is
simply absurd.
Two possibilities for member coverage exist under this
provision. First, the Court reads "on behalf of" the Club to
include a member activity done for the benefit of the Club at its
request, such as a membership drive. Despite Plaintiff's poor
attempt to suggest that his fellowship and goodwill with friends
was in furtherance of the Club's mission, the Court sees nothing
in the facts before it that would suggest that Plaintiff's outing
on the day in question to fall within the simple and plain
meaning of "on behalf of." The second possibility of coverage
arises under a type of vicarious liability. To explain, realize
that the Club is a corporate entity and as such, it can enter
into contracts, it can be sued, it can be held liable for torts
and breach of contract, and so forth. Considering this status, the words "your
activities," must refer to activities undertaken by the corporate
entity, such as when the Club enters into a service contract with
a vendor. Therefore, when the endorsement provision indicates
that it will cover member liability, it follows that the intended
coverage would be invoked when a member is held vicariously
liable for some activity undertaken by the Club as a corporate
Defendant appears to concede a third alternative, specifically
that "Club activities" in this provision would at most include
events organized and run by the Club itself, such as the Club
annual picnic. The Court sees no reason to analyze this assertion
as even if it were true, the simple fact is that Plaintiff was
not attending any Club sponsored event when the accident
occurred. In short, this Court finds the type of activities
covered under the additional insured endorsement are those
pursuits performed on behalf of the Club or situations where a
member is held vicariously liable for an action by the Club.
C. Plaintiff's Activities
Having found the additional insured endorsement to be
unambiguous and to encompass only two specific situations, the
Court now turns to whether Plaintiff Lenox's activities at the
Club on June 30, 2001, are covered by the Policy. The Court will
mention Plaintiff's arguments regarding interpretation briefly,
but dismisses them in turn as they are only applicable in the
case of ambiguity.
First, Plaintiff asks the Court to consider his own
expectations with regard to the insurance coverage. However, only
in cases of genuine ambiguity will the court apply a test of
objectively reasonable expectations. Zacarias v. Allstate Ins.
Co., 168 N.J. 590, 598 (N.J. 2001); see also DiOrio v. New
Jersey Mfrs. Ins. Co., 79 N.J. 257, 269 (1979) (finding the
reasonable expectations tests inappropriate where contract was unambiguous).
The instant case does not involve an ambiguous contract. Second,
Plaintiff points to the Club Constitution and By-Laws to direct
the Court's interpretation. Again, in New Jersey, words of an
insurance policy are given "their plain, ordinary meaning" absent
ambiguity, Zacarias, 168 N.J. at 595, and "the interpretation
of [the] insurance policy must focus upon the terms of the
agreement itself rather than extrinsic evidence." Jacobs
Constructors, Inc. v. NPS Energy Servs., 264 F.3d 365, 377 (3d
Cir. 2001). The insurance contract itself makes no reference to
the Club Constitution or By-Laws, therefore, the Court sees no
reason to refer to these documents in its interpretation.
Therefore, turning to the two specific situations the Court
described above under which a member would enjoy coverage, this
Court finds neither applicable to Plaintiff. On June 30, 2001,
Plaintiff Lenox went to the Club to enjoy a private and personal
outing with friends. He was not attending a Club function nor was
he engaged in activity directed by the Club in anyway. Indeed,
Plaintiff was simply taking advantage of his privilege to access
Club property for his own pleasure. Unfortunately, the afternoon
resulted in a tragic accident, but the Court has no evidence
before it that indicates that Plaintiff's liability stems from a
theory of vicarious liability.
The Court sees no reason to grant coverage to Plaintiff under
the Club's Policy simply because an accident between two
individuals visiting the Club on their own accord for their own
enjoyment occurred on Club property. Reading the language of the
endorsement in this way would lead to blanket coverage for any
member stepping foot on club property for any reason. This
interpretation would provide insurance coverage where none was
ever intended by the contracting parties, and would certainly be
in conflict with the plain and ordinary meaning of the
endorsement provision. The Court fails to see how any reasonable
and plain reading of the terms utilized in this provision would cover Plaintiff's own private
actions. This Court finds that the language of the additional
insured endorsement is limited such that the activities
undertaken by Plaintiff on June 30, 2001, do not qualify for
coverage under the Scottsdale Insurance Policy.
For the reasons set forth above, Plaintiff's Motion for Summary
Judgment is denied, and Defendant's Motion for Summary Judgment
is granted. This case is closed. An appropriate form of order
will be filed herewith.
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Cooked Corned Beef Brisket
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Serving size: Complete recipe
Calories 3302 Calories from Fat 1805
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Total Fat 201 g308.7%
Saturated Fat 80.2 g400.9%
Trans Fat 0 g
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Sodium 2346.1 mg97.8%
Total Carbohydrates 63 g21.1%
Dietary Fiber 6.2 g24.7%
Sugars 8.8 g
Protein 303 g607%
Vitamin A 16.9% Vitamin C 31.7%
Calcium 12.7% Iron 9.5%
*Based on a 2000 Calorie diet


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United States District Court, E.D. New York
November 16, 2012
Lisa EDWARDS, Plaintiff,v.JERICHO UNION FREE SCHOOL DISTRICT, Jericho Union Free School District Board of Education, Henry L. Grishman, in his official capacity as Superintendent and individually, Benjamin Ciuffo, in his official capacity as Assistant Superintendent and individually, Barbara Bauer, in her official capacity as Assistant Superintendent and individually, Joseph Prisinzano, in his official capacity as Principal and Individually, and Antony Sinanis, in his official capacity as Principal and individually, Defendants.
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[Copyrighted Material Omitted]
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Dandeneau & Lott by: Dawn A. Lott, Esq., Melville, NY, for Plaintiff.
Ingerman Smith, L.L.P. by: David F. Kwee, Esq., Hauppauge, NY, for Defendants.
HURLEY, Senior District Judge.
Plaintiff Lisa Edwards (" plaintiff" ) commenced this action against Jericho Union Free School District (the " District" ), Jericho Union Free School District Board of Education (the " Board" ), Henry L. Grishman, Benjamin Ciuffo, Barbara Bauer, Joseph Prisinzano, and Antony Sinanis, (collectively, " defendants" ) asserting causes of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (" Title VII" ), 42 U.S.C. §§ 1981 and 1983, and the New York Human Rights Law, N.Y. Exec. Law § 296 (" NYHRL" ), which stemmed from the termination of plaintiff's employment with the District. Presently before the Court is defendants' motion for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure (" Rule" ) 12(c) and plaintiff's cross-motion to amend her Complaint, made pursuant to Rule 15. For the reasons set forth below, both motions are granted in part and denied in part.
The following facts are drawn from the allegations contained in the proposed Amended Complaint (" Am. Compl." ).
I. The Parties
Plaintiff is an African-American female who resides in Suffolk County, New York. The District is an educational body organized under and governed by the laws of the State of New York, and is comprised of all public schools within the Public School System of Jericho, New York. The Board is " a duly constituted administrative body" that has the power to, inter alia, appoint and hire employees of the District. (Am. Compl. ¶ 7.)
Grishman was employed by the District at all relevant times as the Superintendent
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of the District. Ciuffo worked as the District's Assistant Superintendent of Personnel and Educational Operations, and Bauer worked as the Assistant Superintendent of Curriculum and Instruction for the District. Prisinzano was the Principal of Jericho High School (" Jericho High School" ), and Sinanis worked as the Principal of Cantiague Elementary School (" Cantiague" ).
II. Plaintiff's Employment Between 2006 and 2009
In January 2006, plaintiff was hired as a part-time reading teacher, part-time tutor, and per diem substitute teacher in the District. ( Id. ¶ 17.) In July 2006, plaintiff was appointed to a three-year probationary position as a Reading and ELA Support Teacher at Jericho High School. ( Id. ¶ 20.) During her three-year probationary period, plaintiff was observed and evaluated by Prisinzano as well as other non-party " Curriculum Associates" employed by the District. ( Id. ¶ 21.) These observations and evaluations were generally positive. ( Id. ¶¶ 22, 23.) Toward the end of her probationary period, however, Ciuffo informed plaintiff that " he would not be recommending her for a tenured position." ( Id. ¶ 24.) Ciuffo was " unable to provide [p]laintiff with an explanation for this decision." ( Id. ¶ 25.) Customarily, the Jericho Teachers' Association (the " Union" ) received advanced notice from the District when a probationary teacher, such as plaintiff, was in jeopardy of not receiving tenure. ( Id. ¶ 28.) In this case, however, the Union did not receive any advanced notice that plaintiff " was at risk of being denied tenure or that her performance was unsatisfactory." ( Id. ¶ 29.)
At plaintiff's request, a meeting regarding this decision was held in March 2009 and was attended by plaintiff, Bauer, Ciuffo, Prisinzano, other unnamed District employees, and a Union representative. ( Id. ¶ 30.) For the first time, plaintiff was advised " that those present at this meeting ... had ' serious' concerns about Plaintiff's job performance," although no specific examples of such concerns were given. ( Id. ¶¶ 32, 33.) Plaintiff and her Union representative " voiced their concern that the Defendants' conduct was unsubstantiated, unprecedented and racially motivated." ( Id. ¶ 34.) During a subsequent meeting between plaintiff, her Union representative, and Bauer, plaintiff was given " a list of ' goals' to be implemented for the remaining 2008-2009 school year." ( Id. ¶ 36.) Plaintiff informed Bauer that she believed these stated goal " contradicted the evaluations, observations, and feedback that Plaintiff recently received." ( Id. ) Plaintiff's final observations and evaluations for the school year were positive in nature. ( Id. ¶ 39.)
III. Plaintiff's Transfer
Subsequently, plaintiff was offered a fourth probationary year. Bauer and Ciuffo informed plaintiff that she " would receive a mentor and additional guidance to ensure her success" in the District. ( Id. ¶ 37.) Plaintiff accepted the offer. ( Id. ¶ 38.) Plaintiff learned, however, that she was to be transferred from Jericho High School to Cantiague. Both plaintiff and her Union representative " objected to this reassignment[,] stating that such a decision was unprecedented, discriminatory and implemented to sabotage the Plaintiff's chances of receiving tenure." ( Id. ¶ 41.) Throughout plaintiff's probationary employment period with the District, she had worked only at the middle school or high school level— never in elementary schools. At the time of plaintiff's transfer, " there was at least one other teacher within the school district who had more experience with elementary children and who was available for reassignment." ( Id.
¶ 43.)
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Plaintiff's position at Jericho High School was filled by a " part-time Caucasian teacher who had less experience than the Plaintiff." ( Id. ¶ 44.)
IV. Plaintiff's Fourth Probationary Year at Cantiague
Plaintiff commenced work at Cantiague in August 2009 under the supervision of Sinanis. Plaintiff contends that her " work environment became stressful and hostile" and that she was " subjected to unscheduled and unannounced classroom observations which caused her to feel anxious and intimidated." ( Id. ¶ 46.) Sinanis would " enter the Plaintiff's classroom unexpectedly" and " stare at her from the back of the class and leave," in an effort to " harass and intimidate" her. ( Id. ¶ 47.) Plaintiff was " repeatedly asked to document every step," although Caucasian teachers were not required to do so. ( Id. ¶ 49.)
Between November 14, 2009 and December 11, 2009, plaintiff was out of work on medical leave, which was " due [to] stress related symptoms caused by the treatment she was receiving while at work." ( Id. ¶ 50.) During her leave, plaintiff " received multiple harassing phone calls from District administrators questioning her intentions to return to work," even though she had already supplied the District with the appropriate paperwork. ( Id. ) When plaintiff returned to work, her " need for medical leave was held against her and she was accused of not completing assignments while absent." ( Id. ¶ 52.)
According to plaintiff, defendants continued to engage in " discriminatory intimidation" against her after her return from medical leave. ( Id. ¶ 53.) Defendants alleged that she had failed to administer tests and provide student services, even though these allegations " were contradicted by the Plaintiff's records." ( Id. ¶ 54.) Although plaintiff " worked with a team of Caucasian teachers, she was singled-out when an issue arose." ( Id. ¶ 55.) Plaintiff learned that certain documents in her personnel file had been " falsified to cover up the discriminatory and disparate treatment to which she was subjected." ( Id. ¶ 56.) On a separate occasion, plaintiff " was directed to provide false information to a parent thereby jeopardizing her job and relationship with her student." ( Id. ¶ 57.)
V. Plaintiff's Employment is Terminated
In January 2010, plaintiff and her Union representative met with Sinanis and Ciuffo, and plaintiff learned that she was to be terminated effective April 30, 2010. Ciuffo offered to write plaintiff a recommendation letter if she voluntarily resigned immediately. Plaintiff was told that if she did not resign, Ciuffo " had a lot of connections to other school districts." ( Id. ¶ 59.) Plaintiff refused to resign effective immediately. Subsequently, the Board " accepted the recommendation" that plaintiff's employment be terminated, and her last day of work was April 30, 2010. ( Id. ¶ 67.) Plaintiff alleges that she " is unaware of any instance where a fourth year teacher was not granted tenure." ( Id. ¶ 66.)
I. Legal Standard
A. Motion to Dismiss
" ' In deciding a Rule 12(c) motion, [a court] appl[ies] the same standard [regarding the sufficiency of a pleading] as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.' "
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Desiano v. Warner-Lambert & Co., 467 F.3d 85, 89 (2d Cir.2006) (quoting Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999)). Rule 8(a) provides that a pleading shall contain " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The Supreme Court has clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6).
First, in Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) that " a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Twombly, 550 U.S. at 561, 127 S.Ct. 1955 (quoting Conley, 355 U.S. at 45-46, 78 S.Ct. 99) (internal quotation marks omitted). Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege " only enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955.
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Id. at 555, 127 S.Ct. 1955 (citations and internal quotation marks omitted).
More recently, in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court provided further guidance, setting forth a two-pronged approach for courts deciding a motion to dismiss. First, a court should " begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679, 129 S.Ct. 1937. " While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Thus, " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
Second, " [w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937. The Court defined plausibility as follows:
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a " probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are " merely consistent with" a defendant's liability, it " stops short of the line between possibility and plausibility of ' entitlement to relief.' "
Id. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955) (internal citations omitted); see also Ortiz v. City of New York, 755 F.Supp.2d 399, 401 (E.D.N.Y.2010) (" [A] complaint must contain factual allegations to support the legal conclusions and the factual allegations must plausibly give rise to an entitlement of relief." ) (internal quotation marks omitted).
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B. Motion to Amend
Under Rule 15(a), the Court " should freely give leave [to amend a pleading] when justice so requires." Fed.R.Civ.P. 15(a); see also AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 725 (2d Cir.2010). A motion to amend may be denied, however, upon a showing of the futility of the proposed amendment. Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.2008). " [T]he standard for futility with respect to a motion to amend under Rule 15 is identical to the standard for a Rule 12(b)(6) motion to dismiss— namely, the court must determine whether the allegations in the complaint state a claim upon which relief can be granted." Crippen v. Town of Hempstead, 2009 WL 803117, at *1 n. 1 (E.D.N.Y. Mar. 25, 2009).
II. Plaintiff's Title VII Claims
In a Stipulation, which was " So Ordered" by the Court on November 7, 2011, plaintiff clarified that she is asserting her Title VII claims only against the District and the Board. ( See Docket No. 12.) Plaintiff has moved to amend her Complaint to make clear that she is asserting not only Title VII discrimination claims, but also Title VII claims of retaliation and hostile work environment. (Pl.'s Mot. to Amend at 4-5.) Defendants do not appear to oppose this portion of plaintiff's motion to amend. Accordingly, the Court grants plaintiff's motion to amend to the extent that she seeks to amplify her Title VII causes of action to include claims of discrimination, retaliation, and hostile work environment.
III. Plaintiff's NYHRL Claims
Plaintiff also asserts discrimination, hostile work environment, and retaliation claims under the NYHRL. Defendants assert that plaintiff's NYHRL claims must be dismissed because (1) plaintiff's claims are time-barred, as they are outside the one-year statute of limitations set forth in New York Education Law § 3813(1), and (2) plaintiff failed to comply with the notice of claim requirements set forth in New York Education Law § 3813(2-b). (Defs.' Mot. to Dismiss at 7-12.)
" New York law requires that a plaintiff plead and prove compliance with Education Law § 3813's notice of claim and statute of limitations requirements." Moore v. City of New York, 2010 WL 742981, at *9 (S.D.N.Y. Mar. 2, 2010) (citing Amorosi v. S. Colonie Ind. Cent. Sch. Dist., 9 N.Y.3d 367, 849 N.Y.S.2d 485, 880 N.E.2d 6 (2007)). Section 3813(1) provides that " [n]o action or special proceeding, for any cause whatever" may be brought against a " school district, board of education, ... or any officer of a school district [or] board of education" unless the plaintiff presented " a written verified claim" to " the governing body of said district or school within three months after the accrual of such claim." N.Y. Educ. Law § 3813(1). Section 3813(2-b) provides a one-year statute of limitations for any action brought against a school district, board of education, or officer thereof, other than actions sounding in tort.[1]N.Y. Educ. Law § 3813(2-b).
A. Statute of Limitations
Defendants argue that because plaintiff's Complaint was not filed until July 7, 2011— more than one year after the termination of her employment on April 30, 2010— her NYHRL claims are time-
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barred. (Defs.' Mot. to Dismiss at 8.) Plaintiff appears to concede that her NYHRL claims against the District, the Board, Grishman, Ciuffo, and Bauer are time-barred. ( See Pl.'s Opp'n to Mot. to Dismiss at 5-6.) Plaintiff argues, however, that the one-year statute of limitations set forth in Section 3813(2-b) applies only to school districts, boards of education, and " officers" thereof, and that Prisinzano and Sinanis, as school principals, are not " officers" within the meaning of the statute. ( Id. at 5-6.)
Section 3813(2-b) makes clear that its one-year statute of limitations does not apply to every employee of a school district or board of education, but only those individuals referenced in Section 3813(1), i.e., " officer[s] of a school district, board of education, board of cooperative educational services, or school provided for in article eighty-five of this chapter or chapter ten hundred sixty of the laws of nineteen hundred seventy-four...." N.Y. Educ. Law § 3813(1), (2-b). It is well-settled that school principals, such as Prisinzano and Sinanis, are not " officers" of the District or Board within the meaning of the statute.[2] See Rosenberg v. City of New York, 2011 WL 4592803, at *16 (E.D.N.Y. Sept. 30, 2011) (principal and assistant principal are not officers under Section 3813(1)); Lewinter v. N.Y. City Dep't of Educ., 2010 WL 2746334, at *7 (S.D.N.Y. July 9, 2010) (same); Spencer v. City of New York, 2007 WL 1573871, at *3 (S.D.N.Y. May 30, 2007) (same). Accordingly, plaintiff's NYHRL claims against Prisinzano and Sinanis are not subject to the one-year statute of limitations set forth in Section 3813(2-b), but to the three year statute of limitations that normally governs State law claims of discrimination. See Rosenberg, 2011 WL 4592803 at *17.
Thus, plaintiff's NYHRL claims against the District, Board, Grishman, Ciuffo, and Bauer are dismissed as time-barred. Plaintiff's NYHRL claims against Prisinzano and Sinanis, however, are not dismissed on statute of limitations grounds.
B. Notice of Claim Requirements
Defendants also move for the dismissal of plaintiff's NYHRL claims on the grounds that plaintiff failed to adequately plead that she served a proper notice of claim, as required by Section 3813(1) of the Education Law. (Defs.' Mot. to Dismiss at 11.) Plaintiff has moved to amend her Complaint for the purpose of clarifying that she has, in fact, complied with this procedural requirement. ( See Pl.'s Mot. to Amend 4; Am. Compl. ¶ 15.) Ultimately, however, the adequacy of plaintiff's pleading on this point is irrelevant because the only NYHRL claims remaining are those asserted against Prisinzano and Sinanis, and the notice requirements set forth in Section 3813(1) apply only to " officers" of a school district or board of education. As set forth above, school principals do not constitute " officers" within the meaning of Section 3813(1), and, thus, the notice of claim requirements set forth in that statute do not apply to claims asserted against Prisinzano and Sinanis. See Lewinter, 2010 WL 2746334 at *7; Spencer, 2007 WL 1573871 at *3.
C. The Merits of Plaintiff's NYHRL Discrimination Claims Against Prisinzano and Sinanis
For the first time in their reply brief submitted in further support of their motion
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to dismiss, defendants argue that plaintiff has failed to allege that Prisinzano or Sinanis engaged in any conduct that would give rise to individual liability pursuant to the NYHRL. While the Court would normally decline to address arguments raised for the first time in a reply brief, it will do so in this case given that defendants raised similar arguments as part of their opposition to plaintiff's motion to amend, and plaintiff had an opportunity to address the alleged conduct of Prisinzano and Sinanis in her reply brief submitted in further support of her motion to amend.
An individual may be liable for discrimination in violation of the NYHRL as either an employer, N.Y. Exec. Law § 296(1), or as an " aider and abettor," id. § 296(6). Section 296(1) of the New York Executive Law prohibits an " employer" from discriminating based upon the " race, creed, [or] color" of an employee or job applicant. N.Y. Exec. Law § 296(1)(a). Individuals are liable as employers under Section 296(1) only if they have " an ownership interest," or if they " themselves, have the authority to ' hire and fire' employees." Gentile v. Town of Huntington, 288 F.Supp.2d 316, 321 (E.D.N.Y.2003) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)); see also Patrowich v. Chem. Bank, 63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 473 N.E.2d 11 (1984) (per curium) (holding that an individual is not liable under the NYHRL as an employer unless he is " shown to have any ownership interest or any power to do more than carry out personnel decisions made by others" ).
Here, the Amended Complaint does not contain allegations sufficient to maintain a claim against either Prisinzano or Sinanis as an " employer" under Section 296(1). Plaintiff does not allege that either school principal had the power or authority to hire or fire plaintiff, or that they had the ability to do anything more than " carry out personnel decisions" made by the Board and/or District. See Patrowich, 63 N.Y.2d at 542, 483 N.Y.S.2d 659, 473 N.E.2d 11. Accordingly, defendants' motion to dismiss any claims against Prisinzano and Sinanis pursuant to Section 296(1) of the NYHRL is granted.
Section 296(6), however, " provides a broader sense of personal liability" under the NYHRL. Gentile, 288 F.Supp.2d at 321. That provision makes it unlawful " for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so." N.Y. Exec. Law § 296(6). An individual can be liable under Section 296(6) so long as he " actually participates in the conduct giving rise to a discrimination claim." Tomka, 66 F.3d at 1317.
With respect to Prisinzano, the Principal of Jericho High School, plaintiff argues that he " directly participated in the violation, by contributing to erroneous evaluations of the Plaintiff which were later used as a basis for her discharge, as well as failing to advise the Union of alleged performance issues, which notice was provided for white teachers." (Pl.'s Reply in Supp. of Mot. to Amend at 6.) The allegations actually pled in the Amended Complaint, however, do not dovetail with the above-quoted statement of counsel. In the Amended Complaint, plaintiff alleges that although Prisinzano's written evaluations were generally positive in nature and commended plaintiff's work performance, (Am. Compl. ¶¶ 21-23, 26), he was, nonetheless, one of those present during the March 2009 meeting who expressed " serious concerns" about plaintiff's work performance ( id. ¶ 32.) Other than her conclusory assertion that this opinion, apparently shared by others present at the
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March 2009 meeting, was " racially motivated," ( id. ¶ 34), she does not allege or otherwise articulate why Prisinzano's statement made during the March 2009 meeting— which conflicted with his prior written evaluations— was discriminatory. Moreover, although plaintiff has alleged that the Union was not given advanced notice of the possibility that she, as a probationary teacher, would not receive tenure, ( id. ¶ 28), she does not allege that Prisinzano was responsible for this alleged lapse in communication. In short, plaintiff has failed to sufficiently allege that Prisinzano actually participated in any discrimination so as to give rise to liability under Section 296(6).
By contrast, plaintiff has sufficiently alleged that Sinanis actually participated in the alleged discriminatory conduct at issue. Plaintiff asserts that, upon her transfer to Cantiague, her work environment " became stressful and hostile," in large part due to Sinanis's actions. ( Id. ¶¶ 45, 46.) Specifically, plaintiff alleges that Sinanis " would enter [her] classroom unexpectedly[,] stare at her from the back of the class and then leave," and she asserts that he engaged in such conduct with the purpose of " harass[ing] and intimidat[ing]" her. ( Id. ¶ 47.) The Court finds these allegations sufficiently allege Sinanis's actual participation in the alleged hostile work environment so as to make dismissal of plaintiff's Section 296(6) claim against him inappropriate.
D. Merits of Plaintiff's NYHRL Retaliation Claims Against Prisinzano and Sinanis
As discussed above, plaintiff's NYHRL retaliation claims are time-barred except as they are asserted against Prisinzano and Sinanis. Section 296(7) of the NYHRL prohibits " any person engaged in any activity to which this section applies to retaliate or discriminate against any person because he or she has opposed any practices forbidden under this article...." N.Y. Exec. Law § 296(7). In support of her retaliation claim, plaintiff alleges that she and her Union representatives " [informally and verbally] charged the Defendants with disparate treatment and racial discriminatory practices in denying her tenure" and that plaintiff " refused to sign her final evaluation and her termination letter," on the grounds that these documents reflected defendants' racial discrimination. (Am. Compl. ¶¶ 106, 107.) As a result, plaintiff alleges, she was subjected to the following retaliatory conduct: (1) she was transferred from Jericho High School to Cantiague, (2) she was " subjected to unwarranted and unfounded charges relating to services she provided to her students," (3) she was " improperly reprimanded for medical-related absences from work," (4) she was " forced to sign documents which she knew were inaccurate and [was] threatened with immediate termination [if she refused]," and (5) she was " denied the opportunity to finish the 2009-2010 school year." ( Id. ¶¶ 108-113.)
Of the five instances of alleged retaliatory conduct set forth above, the only one that occurred while plaintiff was working at Jericho High School, where Prisinzano was the Principal, was the decision to transfer her to Cantiague. Plaintiff does not, however, allege that Prisinzano made or played any role in that transfer decision. (Am. Compl. ¶ 40.) Indeed, plaintiff alleges that her final observations and evaluations for the 2008-2009 school year were positive, but " [d]espite these observations, ... the Defendants decided to transfer the Plaintiff from the High School to Cantiague...." ( Id. (emphasis added).) Moreover, plaintiff does not allege that Prisinzano had any involvement in the allegedly retaliatory conduct
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that occurred at Cantiague. Accordingly, plaintiff's NYHRL retaliation claim is dismissed as to Prisinzano.
Defendants' motion to dismiss plaintiff's NYHRL retaliation claim as against Sinanis, however, is denied. Although the majority of the allegedly retaliatory conduct that occurred during plaintiff's employment at Cantiague is not directly attributed to Sinanis, ( see Am. Compl. ¶ 54 (alleging that plaintiff was subjected to unwarranted " [a]llegations that [she] had not administered tests and failed to provide student services" ), ¶ 51 (alleging that she received " multiple harassing phone calls from District administrators" while on medical leave)), the Amended Complaint can plausibly be read as asserting that Sinanis threatened plaintiff with immediate termination if she did not sign her final evaluation form, which plaintiff contended was " filled with inaccurate statements" ( id. ¶¶ 63, 64). Because defendants' motion to dismiss focuses only on the question of whether plaintiff adequately alleged Sinanis's actual involvement in the alleged conduct (as opposed to the legal sufficiency of the claims themselves), and given the present procedural posture of the case, the Court declines to dismiss plaintiff's NYHRL retaliation claim as against Sinanis at this time.
IV. Plaintiff's State Law Tort Claims
Although plaintiff's third and fourth causes of action have headings indicating that they are brought pursuant to the NYHRL, they are actually common law causes of action for intentional infliction and negligent infliction of emotional distress.[3] Defendants' only argument as to these claims is that they must be dismissed as against Bauer, because she is not named in the Notice of Claim. (Defs.' Reply in Supp. of Mot. to Dismiss at 1-3.)
Section 3813(2) of the Education Law provides that any tort claim against a school district, board of education, or school district employee is subject to the notice of claim requirements set forth in New York General Municipal Law Sections 50-e and 50-i. N.Y. Educ. Law § 3813(2). It is well-settled within both New York state courts and this Circuit that Section 50-e of the General Municipal Law requires a plaintiff to name each defendant in the Notice of Claim in order to maintain a cause of action against that defendant. See DC v. Valley Cent. Sch. Dist., 2011 WL 3480389, at *1 (S.D.N.Y. June 29, 2011) (" ' General Municipal Law § 50-e makes unauthorized an action against individuals who have not been named in a notice of claim.' " ) (quoting Tannenbaum v. City of New York, 30 A.D.3d 357, 358, 819 N.Y.S.2d 4 (1st Dep't 2006)); Schafer v. Hicksville Union Free Sch. Dist., 2011 WL 1322903, at *11 (E.D.N.Y. Mar. 31, 2011). Here, plaintiff has failed to name Bauer in the Notice of Claim. ( See Decl. of Dawn A. Lott, Esq., dated Dec. 5, 2011 (" Lott Decl." ), Ex. 1.) [4]
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Accordingly, plaintiff's causes of action for intentional and negligent infliction of emotional distress are dismissed as against Bauer. See Alexander v. Westbury Union Free Sch. Dist., 829 F.Supp.2d 89, 110 (E.D.N.Y.2011); DC, 2011 WL 3480389 at *2; Schafer, 2011 WL 1322903 at *11.
V. Plaintiff's Section 1983 Claims
A. Concurrent Title VII and Section 1983 Claims
Plaintiff has moved to amend her Complaint to add a Section 1983 cause of action based upon defendants' alleged violation of her Fourteenth Amendment equal protection rights. (Am. Compl. ¶¶ 117-18.) Defendant argues that this portion of plaintiff's motion to amend should be denied as futile and assert that " [w]here both causes of action are based upon the same underlying facts, a Title VII action forecloses a claim under § 1983." (Defs.' Opp'n to Mot. to Amend at 9.)
A plaintiff may not bring a Section 1983 action " to vindicate rights conferred only by a statute that contains its own structure for private enforcement, such as Title VII." Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir.2004). However, " [a] Title VII plaintiff is not precluded from bringing a concurrent § 1983 cause of action, such as a claim for denial of equal protection, so long as the § 1983 claim is based on a distinct violation of a constitutional right." Id. (quoting Gierlinger v. N.Y. State Police, 15 F.3d 32, 34 (2d Cir.1994)) (internal quotation marks omitted); see also Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir.1993) (" A plaintiff cannot use Section 1983 to gain perceived advantages not available to a Title VII claimant, but a plaintiff can assert a claim under Section 1983 if some law other than Title VII is the source of the right alleged to have been denied." ) (internal citation omitted).
Defendants contend that plaintiff " has failed to sufficiently distinguish her [claim] for relief under Title VII from her [claim] for relief under [Section] 1983." ( See Defs.' Opp'n to Mot. to Amend at 10.) To the contrary, however, the Proposed Amended Complaint explicitly states that plaintiff's Section 1983 claim is based upon alleged violations of her Fourteenth Amendment equal protection rights. Therefore, if plaintiff has " asserted cognizable violations" of the Equal Protection clause, she may properly maintain a Section 1983 claim concurrently with her Title VII claim. See Saulpaugh, 4 F.3d at 143.
B. Sufficiency of Plaintiff's Section 1983 Claims
Defendants make only two arguments as to the sufficiency of plaintiff's Section 1983 equal protection claim. First, defendants assert that plaintiff has failed to allege facts sufficient to give rise to municipal liability on the part of the District. (Defs.' Opp'n to Mot. to Amend at 12.) Specifically, defendants contend that plaintiff has failed to " specify[ ] or particulariz[e] whether it is the DISTRICT's policy or practice, as a municipal entity, to allegedly deny equal protection based on race." ( Id. ) Second, defendants argue that plaintiff has failed to sufficiently allege the personal involvement of each individual defendant in the alleged constitutional violation. ( Id. at 13-17.)
1. Municipal Liability
A municipality may be held liable under Section 1983 for its employees' alleged constitutional violations only if the alleged conduct was undertaken pursuant to " a policy statement, ordinance, regulation, or decision officially adopted and promulgated
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by [its] officers" or a " governmental ' custom' even though such a custom has not received formal approval through [ ] official decisionmaking channels." Monell v. N.Y. City Dep't of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). " To show a policy, custom, or practice, the plaintiff need not identify an express rule or regulation." Patterson, 375 F.3d at 226. Rather, it is " sufficient to show ... that a discriminatory practice of municipal official was so ' persistent or widespread' as to constitute ' a custom or usage with the force of law,' or that a discriminatory practice of subordinate employees was ' so manifest as to imply the constructive acquiescence of senior policy-making officials.' " Id. (internal citations omitted).
Here, plaintiff alleges that District employees' unconstitutional conduct was undertaken as part of the District's " custom or practice of denying equal protection to Plaintiff and others based on their race," that " these practices were so persistent and widespread that they constitute the constructive acquiescence of policymakers," and " the individual policymakers directly participated in and/or tacitly condoned the discrimination." (Am. Compl. ¶ 118.) [5] The Court finds these allegations are merely " [t]hreadbare recitals of the elements of a [ Monell ] cause of action" and are " supported by mere conclusory statements." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). As the Supreme Court has made clear, legal conclusions alone— unsupported by factual allegations— cannot survive a Rule 12(b)(6) motion to dismiss. See id. at 679, 129 S.Ct. 1937. Accordingly, plaintiff's motion to amend her Complaint to assert a Section 1983 claim against the District and Board is denied as futile.
2. Personal Involvement
Second, defendants argue that plaintiff has failed to sufficiently allege the personal involvement of Grishman, Ciuffo, Bauer, Prisinzano, or Sinanis, as is required to maintain a Section 1983 claim against them. (Defs.' Opp'n to Mot. to Amend at 13-17.) " It is well-settled in [the Second Circuit] that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Middleton v. City of New York, 2006 WL 1720400, at *13 (E.D.N.Y. June 19, 2006) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994)) (internal quotation marks omitted, alteration in the original). Additionally, if the individual defendant holds a " supervisory position," he may be held liable under Section 1983 if he (1) " failed to remedy the wrong" " after learning of the violation through a report or appeal," (2) " created a policy of custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue," or (3) was " grossly negligent in managing subordinates who caused the unlawful condition or event." Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (quoting Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986)); see also Tekula v. Bayport-Blue Point Sch. Dist., 295 F.Supp.2d 224, 233 (E.D.N.Y.2003) (applying these liability principles to school superintendent and administrator).
Here, plaintiff has failed to adequately allege the personal involvement of Grishman or Prisinzano. With respect to Grishman, his position as Superintendent of the District, standing alone, is " an insufficient basis for the imposition of personal
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liability." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977); see also Wright, 21 F.3d at 501 (" Nor can [Commissioner] Coughlin be held personally responsible simply because he was in a high position of authority in the prison system." ). Other than an allegation that Grishman served as the Superintendent, the proposed Amended Complaint is devoid of any allegations detailing Grishman's role in the alleged discrimination or retaliation against plaintiff. Plaintiff argues that Grishman " made the recommendation not to grant Plaintiff tenure despite the union representative's repeated charges of racial discrimination." (Pl.'s Reply in Supp. of Mot. to Amend at 6.) The paragraphs of the proposed Amended Complaint cited by plaintiff, however, do not contain this allegation. ( See id. (citing Am. Compl. ¶¶ 34, 41).) With respect to Prisinzano, for the reasons stated above in connection with plaintiff's failure to allege NYHRL discrimination or retaliation claims against this individual defendant, the Court concludes that plaintiff has failed to adequately allege Prisinzano's personal involvement in any alleged constitutional violation.
Plaintiff has, however, sufficiently alleged the personal involvement of Ciuffo, Bauer, and Sinanis. Ciuffo made the allegedly discriminatory recommendation that plaintiff not receive tenure. (Am. Compl. ¶ 24.) With respect to Bauer, plaintiff alleges that after Bauer heard plaintiff's allegations that the recommendation not to award her tenure was discriminatory, Bauer asked for time to formulate a list of reasons supporting that decision, and subsequently provided plaintiff with a list of pretextual criticisms that contradicted prior positive evaluations. ( Id. ¶¶ 34-36.) Finally, the Court finds that plaintiff has sufficiently alleged Sinanis's personal involvement for the reasons discussed in connection with plaintiff's NYHRL claim against him.
Accordingly, plaintiff's motion to amend her Complaint to add a Section 1983 claim is granted as to Ciuffo, Bauer, and Sinanis, and is denied as futile as to Grishman and Prisinzano.
VI. Plaintiff's Section 1981 Claim
Defendants argue that if plaintiff is permitted leave to amend her Complaint to add a Section 1983 claim, her request for leave to add a Section 1981 claim should be denied as futile because " a § 1981 cause of action is dismissable as of right, and could not survive a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) where Plaintiff has already asserted a § 1983 cause of action against the Defendants." (Defs.' Opp'n to Mot. to Amend at 8.)
Defendants support their argument with a citation to the Supreme Court's decision in Jett v. Dallas Independent School District, 491 U.S. 701, 705, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). ( See id. ) In Jett, the Supreme Court examined " whether 42 U.S.C. § 1981 provides an independent federal cause of action for damages against local governmental entities, and whether that cause of action is broader than the damages remedy available under 42 U.S.C. § 1983, such that a municipality may be held liable for its employees' violations of § 1981 under a theory of respondeat superior. " Jett, 491 U.S. at 705, 109 S.Ct. 2702. In answering that question, the Supreme Court held as follows:
We hold that the express " action at law" provided by § 1983 for the " deprivation of any rights, privileges, or immunities secured by the Constitution and laws," provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor. Thus to
Page 310
prevail on his claim for damages against the school district, petitioner must show that the violation of his " right to make contracts" protected by § 1981 was caused by a custom or policy within the meaning of Monell and subsequent cases.
Id. at 735-36, 109 S.Ct. 2702. Contrary to defendants' assertion, this holding does not stand for the proposition that a plaintiff may not simultaneously maintain claims against state actors under Sections 1981 and 1983. ( See Defs.' Opp'n to Mot. to Amend at 7-9.) Rather, it makes clear that a municipality cannot be liable for a violation of a plaintiff's rights enumerated in Section 1981 solely under the doctrine of respondeat superior. Instead, to establish municipal liability for a Section 1981 claim, a plaintiff must meet the standards articulated by Monell and its progeny. See Jett, 491 U.S. at 735-36, 109 S.Ct. 2702; see also Patterson, 375 F.3d at 226 (" [W]hen a defendant is sued for discrimination under § 1981 or § 1983 is a municipality ... the plaintiff is required to show that the challenged acts were performed pursuant to a municipal policy or custom." ) (citing Jett, 491 U.S. at 733-36, 109 S.Ct. 2702).
Defendants make no other arguments as to the sufficiency of plaintiff's Section 1981 claim. Accordingly, plaintiff's motion to amend its Complaint to assert a cause of action pursuant to Section 1981 is granted.
For the reasons set forth above, defendants' motion to dismiss the Complaint is granted in part and denied in part, and plaintiff's motion to amend the Complaint is granted in part and denied in part. Defendants' motion to dismiss is granted as to plaintiff's NYHRL claims against the District, Board, Grishman, Ciuffo, Bauer and Prisinzano, but is denied as to plaintiff's NYHRL claims against Sinanis. Further, defendants' motion to dismiss plaintiff's intentional and negligent infliction of emotional distress claims is granted as to Bauer, but is denied as to the remaining defendants.
Plaintiff's motion to amend the Complaint is granted to the extent that she will be permitted to amplify her Title VII causes of action to include claims of discrimination, retaliation, and hostile work environment. Further, plaintiff's motion to amend the Complaint to add Section 1983 claims against Ciuffo, Bauer, and Sinanis is granted, but that portion of the motion is denied as to her proposed Section 1983 claims against the Board, the District, Grishman, and Prisinzano. Finally, plaintiff's motion to amend her Complaint to add a Section 1981 claim is granted. Plaintiff shall file and serve an Amended Complaint that conforms to these rulings within thirty (30) days of the date of this Order.
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Rye Hunt was loving, loyal: family
Rye Hunt's family say he was loyal, loving and an "infuriating!" brother after his body was found on a Brazilian beach.
Clinical tests confirmed the body washed ashore at Marica was that of Mr Hunt, an Australian who went missing in Rio on May 21. Mr Hunt's family on his father's side are New Zealanders.
"We are understandably heart-broken," Mr Hunt's sister Romany Brodribb said.
"Rye was the youngest member of our family and was known for being loyal, loving, generous, cheeky, and as a brother, totally infuriating!
"Thinking about life without him is unfathomable. He will be very missed by us all."
His partner Bonnie Cuthbert, who went to Rio to join the search for him, said she felt blessed to have shared her past five years with her "beautiful Big Bear".
"We have been so lucky to have found and loved each other so deeply. The love Rye and I shared will remain within both of us, forever."
The 25-year-old backpacker went missing on May 21 after he separated from his travelling companion Mitchell Sheppard at the Rio airport.
They had an argument after the two took what is suspected to be a highly potent hallucinogen known as NBOMe.
The family said on Facebook they were disappointed they weren't given the opportunity to share the sad news before it was announced to the media.
"We are understandably grief-stricken as we come to terms with the events of the past two weeks and will not be available for comment," a statement said, adding the family asked for their privacy to be respected.
Foreign Affairs Minister Julie Bishop said on Twitter the family was told immediately after the Brazilian authorities confirmed the test results overnight, and she answered a question from the media at midday.
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text: Diana Shipping Inc. has entered into a time charter contract with China National Chartering Corp., or Sinochart, Beijing for one of its Panamax dry bulk carriers, the Thetis, at a gross rate of $60,250 per day for a minimum 11 to a maximum 13 month period. This employment is anticipated to generate approximately US$19.9 million of gross revenues for the minimum scheduled period of the charter. The charter is expected to commence in early October, 2007.


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Right Tool, Right Problem, Right Thinking
Leading Lean (Jamie Flinchbaugh)
Here is the first installment of a new column that appears in Assembly Magazine, written by Jamie Flinchbaugh. Jamie writes about the importance of "lean thinking" and the power of that, as compared to and in addition to "lean tools."
Jamie also has a new book out, co-written with Andy Carlino, The Hitchhiker's Guide to Lean. I'm about halfway through the book and will post a review and a Q&A with Jamie in the near future.
Please check out my main blog page at www.leanblog.org
The RSS feed content you are reading is copyrighted by the author, Mark Graban.
, , , on the author's copyright.
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Now Available – The updated, expanded, and revised 3rd Edition of Mark Graban's Shingo Research Award-Winning Book Lean Hospitals: Improving Quality, Patient Safety, and Employee Engagement. You can buy the book today, including signed copies from the author.


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Event: Aarti Chabbria and Manoj Bajpai were present at the first look launch of DUS TOLA.
Guest List: Manoj Bajpai, Aarti Chhabria
Venue: Gitanjali store, Atria Mall, Mumbai
Date: 23-Sep-2010
Bollywood actress Aishwarya Rai Bachchan was snapped at the unveiling of 49th World Congress Dance Resarch.
Bollywood celebs Amitabh Bachchan, Tiger Shroff, Swapnil Joshi, Sayaji Shinde, Richa Inamdar, Ganesh Acharya, Pooja Sawant, Manoj Joshi were seen at the mahurat of Marathi film BHIKARI.
Bollywood celebs Farhan Akhtar, Boney Kapoor, Sridevi among others were snapped at the airport.
Bollywood celebs Sunny Deol, Shreyas Talpade and Bobby Deol celebrated Ali Asgar's birthday at The Kapil Sharma Show.
Bollywood celebs Deepshika, Hrishita Bhatt, Subhash Ghai, Hard Kaur, Gurmeet Choudhary, Debina Bonnerjee, Jyoti Saxena among others were seen at launch of lounge Drinking Kulture.


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In the former home of the great John Jameson of whiskey fame, and one of the leading Dublin restaurants, Chapter One was our Restaurant of the Year way back in 2001 when everybody thought southside was the place to be. Since then many others have discovered that ...
Sad as Dubliners were to see the 2012 closure of one of the city's most iconic businesses, the Dublin Woollen Mills (where James Joyce, no less, once worked), it is cheering to see Elaine Murphy and the team from the equally iconic Winding Stair next door serving u ...
This northside quays branch of Stefano Crescenzi and Davide Izzo's popular Dublin restaurants chain Bar Italia bears all the hallmarks of this talented team: sassy Italian waiters offer attentive service, quickly seating new arrivals, and the banter lends a relaxed atmos ...
A discreet Hollywood style facelift has injected new life into Rhona Teehan's theatrical grande dame of a restaurant, now in its 57th year. Designer smokey gold walls replace the scarlet flock but the black and white photos of visiting stage and screen stars remain, alo ...
Good value speedy cooking with lots of flavour is the secret of Yamamori's success - and atmosphere too. This Dublin restaurants just the kind of buzzy place that young people of all ages like to hang about in - a cool place for family outings. Specialities include Ya ...
Number 41 St Stephen's Green is as elegant an address as you'll find on this fashionable city square. The creeper-clad Georgian townhouse boasts a handsome and impressive facade that hints at glamorous goings-on inside. Home to Residence, a private members cl ...


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1978 MMA Serpentine Snake Design Coiled Matte Gold Tone Finish Earrings are clip back. The color is so rich, that as I went to pay for them, the previous owner decided to test them for gold. Alas they were just base metal. The snake head center coils around outward in a very Etruscan looking design. They measure approximately 1 1/2 inch in each direction.
We offer the best in all things Vintage, We now offer payment via the SQUARE.
We are starting my Summer Sale Season, all reasonable offers are considered on older items. Come see us if you are in NYC.


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Lord of Misrule
By (author) Rachel Caine
Format: Paperback / softback
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Lord of Misrule by Rachel Caine
Book DescriptionIn the college town of Morganville, vampires and humans coexist in (relatively) bloodless harmony. Then comes Bishop, the master vampire who threatens to abolish all order, revive the forces of the evil dead, and let chaos rule. But Bishop isn t the only threat. Violent black cyclone clouds hover, promising a storm of devastating proportions as student Claire Danvers and her friends prepare to defend Morganville against elements both natural and unnatural. Watch a Windows Media trailer for this book. "
Buy Lord of Misrule book by Rachel Caine from Australia's Online Bookstore, Boomerang Books.
Book DetailsISBN: 9780451225726
(173mm x 106mm x 17mm)
Imprint: Signet
Publisher: Penguin Putnam Inc
Country of Publication: United States
Other Editions...
Books By Author Rachel Caine
Paper and Fire, Paperback (July 2016)
Jess Brightwell has survived his training at the Great Library of Alexandria, but all is not well. Lies and secrets will be revealed; walls will break. And it may mark the beginning of the end for the Library's iron grip on humanity.
Out of Tune - Book II, Paperback / softback (May 2016)
"A brand new collection of original stories by some of today's top authors of horror, dark fantasy, and science fiction. Each tale draws strange inspiration from classic folk songs and murder ballads from around the world"--Back cover.
Ink and Bone, Paperback / softback (April 2016)
Originally published in hardcover in 2015 by New American Library.
Midnight Bites - Tales of Morganville, Paperback (March 2016)» View all books by Rachel Caine
Bringing together everything Rachel Caine has written in short form about Morganville, this collection is carefully organised into a timeline from the earliest adventures to those post-Daylighters. Midnight Bites includes more than 50,000 words of brand-new content, alongside stories compiled from the author's website and anthologies.
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Author Biography - Rachel Caine
Rachel Caine is the author of more than twenty novels, including the "Weather Warden" series. She was born at White Sands Missile Range, which people who know her say explains a lot. She has been an accountant, a professional musician, and an insurance investigator, and still carries on a secret identity in the corporate world. She and her husband, fantasy artist R. Cat Conrad, live in Texas with their iguanas, Popeye and Darwin; a mali uromastyx named (appropriately) O Malley; and a leopard tortoise named Shelley (for the poet, of course)."
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text: VideosFilm Making Making of Wagah Movie By Studio Flicks - 05/08/2016 Making of Wagah Movie Advertisement shares Facebook Twitter Google+ FlipboardFollow Watch the Making of Wagah Movie. Story, Screenplay and Directed by GNR Kumaravelan featuring Vikram Prabhu, Ranya, Saaji choudhry, Karunas, Sathyan in lead role. Music is composed by D Imman. Advertisement


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Leg tubes are in 6X carbon fibre with Gitzo's efficient G-locks. The GT4552GTS is a Gitzo Series 4 tripod designed for strength and torsional rigidity under loads of up to 25kg (55lb) and with lenses up to 600mm. It reaches overhead-height with its 5-section legs fully extended, but it remains relatively compact when folded.
We have introduced a new Anti Leg Rotation system, which means the tripod can be opened in less than 15 seconds. Simply loosen all the twist locks on each leg at the same time, then pull the leg down and tighten the locks individually.
G-Lock is the new Gitzo leg locking system. The locking mechanism has been completely redesigned in order to achieve a 20% increase in rigidity, faster operation and stronger, safer locking. G-Lock's special design also provides a 'gravity lock' effect: the higher the load applied vertically to the leg, the stronger the lock.
This built-in accessory allows you to hang a stabilizing weight (e.g. a full camera bag or a sand/water bag) from the bottom of the tripod centre column. Useful with long/heavy lenses, on uneven ground or in windy conditions.
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The biggest plus side to being on the Today Show? My day job is no longer a secret. Not that I intentionally kept quiet about it before – but it just doesn't come up on the playground/at the school fundraiser/at the ice hockey game. It turns out that if you appear on national television, people […]READ MORE >>
Sunday Summary: 38/2016
There are few things in life that give me more joy than helping families find names for their children. Back in 2007, I found myself spending all of my free time hanging out in baby naming forums, doling out opinions and advice to any and all who would listen. In early 2008, I started a […]READ MORE >>
Sunday Summary: 37/2016
On Saturday afternoon, we made the trek to the local American Girl store. My daughter and my nephew both picked out Bitty Babies, which look something like newborns. My daughter carefully planned her doll choice, as well as the name: Hazel, chosen after listing possible names on her whiteboard and leading a discussion with her other dozen […]READ MORE >>
Sunday Summary: First of September 2016
My daughter and I settled in to watch Cheaper by the Dozen – the original movie about a big family from 1950 – the other night. In one of the early scenes, the dozen Gilbreth children assemble and give their names. My daughter immediately shouted, "Wait, mommy, go back! I need to hear all of their names!" […]READ MORE >>
Sunday Summary: 35/2016
Hello from New York! I'm spending the end of August here in the big city. I'm working on something special that I hope I'll be able to share in a few days. In the meantime, though, let's talk names! I walked through Saks Fifth Avenue earlier today. Irrelevant observation: my goodness, Jil Sander dresses? Cost […]READ MORE >>
Sunday Summary: 34/2016
I have been naming Pokemon. My son is taking the "gotta catch 'em all" line literally. Instead of desperately trying to get out of running errands with me, he's suddenly by my side, asking if he can come along. Because he has to hatch a so-many-kilometers egg, and how far is it to and from […]READ MORE >>
Sunday Summary: 33/2016
I'm a planner by nature, but for years I didn't recognize it. My assumption was that everyone made a spreadsheet about possible summer camps for their kids to attend right around the holidays, and brainstormed Christmas gift ideas before Labor Day. And maybe we all do this at least sometimes, because the pace of life demands it. But me? I love […]READ MORE >>
Sunday Summary: First of August 2016 edition!
I am having SO much fun with the New Names Showdown! Thank you all for your enthusiastic votes. But may I confess my surprise? I was certain Alaia would run away with the whole thing. It's an A name – among the most popular of letters at the moment – and it reminds me of Aria and […]READ MORE >>
Sunday Summary: 31/2016
Let's start out with a public service announcement to all name bloggers, big and small: I'm delighted to share your work. Or, even better, I'm happy to have you post links to your posts on my Facebook page. Names offer a lens from which to see everything – history, pop culture, language. There's never a […]READ MORE >>
Sunday Summary: Heat Wave edition
It is so July in Washington DC! I'm hiding inside, organizing drawers and binge-watching The Gilmore Girls. And, of course, thinking about baby names. How amazing is this list of no-frills feminine choices ending in d and t? Clothilde, Odette, Evolet, Harriet, Amoret, Scout, Maybritt. Wait – what are the odds that Maibritt – in all of its many […]READ MORE >>
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Borscht With Meat
|Salt pork
|1⁄4 Pound, diced
|1 Large, thinly sliced
|1 Medium, sliced
|Celery root/Parsley root
|6 Ounce, peeled and cut in thin strips (1 Root)
|1⁄2 Pound, peeled and shredded (3 Beets)
|1⁄2 Pound, thinly sliced (1/2 Head)
|2 Quart
|Cooked meat
|1 1⁄2 Pound, diced (Such As Kietbasa / Polish Sausage, Ham, Beef, Or Pork)
|Canned whole tomatoes
|8 Ounce (1 Can)
|Rye flour kvas
|1 Cup (16 tbs)
|2 Tablespoon (At Room Temperature)
|2 Tablespoon
|1 Teaspoon
|1⁄2 Teaspoon
|Lemon juice/Vinegar
|1 1⁄2 Tablespoon
|Whipping cream/Dairy sour cream
|1 Cup (16 tbs)
Fry salt pork until golden in a 5 quart kettle.
Add leek and onion.
Fry until onion is transparent.
Add celery root, beets, cabbage, water, and meat.
Cook until celery root is crisp tender; about 25 minutes.
Add tomatoes and kvas; mix.
Cook over medium heat 30 minutes.
Make a smooth paste of butter and flour; stir into the simmering soup.
Cook and stir until soup thickens.
Add salt, pepper, and lemon juice; mix.
To serve, spoon a small amount of cream and horseradish into each bowl.
Ladle hot soup into bowl and stir to blend with the cream and horseradish.
Rate It
Nutrition Rank
Nutrition Facts
Serving size: Complete recipe
Calories 4446 Calories from Fat 2239
% Daily Value*
Total Fat 250 g384.1%
Saturated Fat 115.4 g576.9%
Trans Fat 0 g
Cholesterol 1003.7 mg334.6%
Sodium 4889.2 mg203.7%
Total Carbohydrates 315 g105%
Dietary Fiber 81.4 g325.4%
Sugars 57.5 g
Protein 231 g461.8%
Vitamin A 118.9% Vitamin C 293%
Calcium 80.1% Iron 204.8%
*Based on a 2000 Calorie diet


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Chronicle Forums
Discussion Forums
> cross country vest question
View Full Version :
cross country vest question
Oct. 15, 2009, 09:34 PM
I am looking for my first xc vest and I was wondering what the differance was between the Tipperary vest, and the Intec? If any? Which one would you perfer? Thanks!
Oct. 15, 2009, 11:45 PM
The foam pieces are placed slightly differently, but to my eye they look about the same. I also noticed that right under the zipper the Intec just has a flap while the Tipperary has a thicker piece of foam that holds the vest out from your body a bit.
If you want custom colors you have to go with Tipperary, as far as I know Intec only comes in black. (Unless you want burgundy, in which case you're out of luck as Tipperary switched suppliers and now only has "wine" which is *red*.)


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How To Price for a Wedding BusinessTuesday, May 24, 2016
A few months ago, I shared a video conversation between Xochitl Gonzalez and Brooke Keegan on pricing for wedding planners. Today, I want to share video that Susan Stripling taught for Creative Live a few years ago on pricing for a wedding photography business. In it, Susan goes beyond the theoretical and breaks down the nuts and bolts of how she prices her business. While the videos are targeted to planners and photographers, wedding professionals in any segment of the industry can glean a lot of practical info from them that they can then apply to their own businesses.
(If you can't see the video, click here to view on YouTube.)


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I am very pleased my husband and I chose to use Moussa to complete our bathroom as I felt very comfortable with him in the house and his workmanship is second to none. He did a fantastic job on our bathroom always giving as much information as possible and opportunities to chan..
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The first thing that will strike you about this superb parc is the wonderful space and openness of the grounds. There are simply acres and acres for you to relax in and for the children to explore. The facilities are excellent too, including an impressive pool complex with waterslides and a separate pool for youngsters, not to mention the superb play area.
The family proprietors are your hosts in the attractive bar and restaurant, and their personal approach is much in evidence throughout.
Regional airports at Poitiers and Tours make fly drive an easy option. Alternatively, ferries to St Malo, Caen, Cherbourg and Roscoff are available.
The location is ideal for exploring, with lEtang de la Breche nearby as well as many outstanding chateaux also within easy reach. While you're here we would particularly recommend visits to mighty Chinon and the very beautiful Azay-le-Rideau.
From the fast to the folkloric, Le Mans is synonymous with the 24 hour race that takes place in June. While gentler souls may prefer the Loire Valley Festival also in June at Amboise. Then there is the International Garden Festival in April, in the idyllic grounds of Chaumont sur Loire chateau.
Service Charges
Service Charge £7 per unit per night
Facilities Passes FREE
PAY ONLY £9.50 Oct 14, 17


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My husband and I have a dark purple truck. Someone lost a bucket of white paint on the road and of course we drove through it. How do I get the white paint off the truck without ruining the paint job?
By Angie from Dallas, TX
My X used to do cosmetic scratches on cars for a living. He took it off with paint thinner.
I've heard WD 40, I think I read it in this newsletter in the past.
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