Freud v. N.Y.C. Dep't of Educ. ( 2023 )

22-879
Freud v. N.Y.C. Dep’t of Educ.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 27th day of April, two thousand twenty-three.
PRESENT:
BARRINGTON D. PARKER,
RICHARD J. SULLIVAN,
Circuit Judges,
JOHN L. SINATRA, JR.,
District Judge. *
________________________________________
ABRAHAM FREUD,
Plaintiff-Appellant,
v. No. 22-879
NEW YORK CITY DEPARTMENT OF EDUCATION,
DOROTHY COLLINS, individually and in her
official capacity, RUDY E. GIULIANI,
individually and in his official capacity,
MARJORIE DALRYMPLE, individually and in
her official capacity,
Defendants-Appellees. †
________________________________________
*Judge John L. Sinatra, Jr., of the United States District Court for the Western District of New
York, sitting by designation.
† The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
For Plaintiff-Appellant: STEWART LEE KARLIN (Natalia
Kapitonova, on the brief), Stewart
Lee Karlin Law Group, PC, New
York, NY.
For Defendants-Appellees: DIANA LAWLESS (Richard
Dearing, Claude S. Platton, on the
brief), for Sylvia O. Hinds-Radix,
Corporation Counsel of the City
of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Mary Kay Vyskocil, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Abraham Freud – a special-education teacher – appeals from the district
court’s dismissal of his complaint against the New York City Department of
Education and three of its administrators (collectively, “Defendants”), alleging
violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq., as well as other federal, state, and local laws. 1 In a nutshell, Freud alleged
that Defendants discriminated against him based on his Orthodox Jewish religion,
1Freud does not challenge the dismissal of his other claims under federal, state, and local laws,
nor the dismissal of the individual defendants.
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retaliated against him when he complained of the disparate treatment to federal
and local agencies, and subjected him to a hostile work environment. On
Defendants’ motion, the district court dismissed Freud’s complaint for failure to
state a claim.
“We review de novo a district court’s dismissal of a complaint pursuant to
Rule 12(b)(6)” of the Federal Rules of Civil Procedure, “accepting all factual
allegations in the complaint as true[] and drawing all reasonable inferences in the
plaintiff’s favor.” Dolan v. Connolly, 794 F.3d 290, 293 (2d Cir. 2015). We assume
the parties’ familiarity with the underlying facts, procedural history, and issues on
appeal.
The district court properly concluded that most of Freud’s allegations of
discrimination and retaliation were untimely. A Title VII claim is time-barred if
it is not filed “with the [Equal Employment Opportunity Commission (“EEOC”)]
within 180 [days] or, in states like New York that have local administrative
mechanisms for pursuing discrimination claims, 300 days ‘after the alleged
unlawful employment practice occurred.’” Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 79 (2d Cir. 2015) (quoting 42 U.S.C. § 2000e-5(e)(1)). Because
Freud – who resided and worked in New York – filed his charges with the EEOC
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on February 6, 2020, his discrimination and retaliation claims that occurred prior
to April 12, 2019 are barred by Title VII’s statute of limitation. 2
Freud nonetheless argues that his claims are timely under the
continuing-violation doctrine, which “applies to claims composed of a series of
separate acts that collectively constitute one unlawful practice,” Gonzalez v. Hasty,
802 F.3d 212, 220 (2d Cir. 2015) (alterations and internal quotation marks omitted),
and “functions to delay the commencement of the statute[-]of[-]limitations period
until the last discriminatory act in furtherance of that broader unlawful practice,”
Tassy v. Buttigieg, 51 F.4th 521, 532 (2d Cir. 2022) (internal quotation marks
omitted). But the Supreme Court has made clear that “discrete discriminatory
acts are not [themselves] actionable if time[-]barred, even when they are related to
acts alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113–14 (2002) (explaining that “acts such as termination, failure to promote,
denial of transfer, or refusal to hire” are clearly discrete adverse actions). To toll
Title VII’s statute of limitation, a plaintiff must instead “allege both the existence
of an ongoing policy . . . and some non-time-barred acts taken in furtherance of
2 Because “hostile work[-]environment claims are different in kind from discrete acts” and
“cannot be said to occur on any particular day,” the district court properly considered “the entire
scope of [Freud’s] hostile work[-]environment claim, including behavior alleged outside the
statutory time period.” McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir. 2010).
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that policy.” Lucente v. County of Suffolk, 980 F.3d 284, 309 (2d Cir. 2020).
Indeed, “[t]o hold otherwise would render meaningless the time limitations
imposed on discrimination actions.” Lightfoot v. Union Carbide Corp., 110 F.3d 898,
907–08 (2d Cir. 1997).
Here, the district court correctly observed that the complaint “parades a
laundry list of discrete acts, untethered from any relation to each other.”
Sp. App’x at 13. For instance, Freud alleges that Defendants failed to timely
replace his computer after a student accidentally damaged it, see App’x at 71;
“confiscated [his] students’ group worktable,” id. at 74; dropped off a “brand-new
student” to his classroom “without any prior notification,” id. at 78; and placed
him in a summer-school program at a location where he had “difficulty [with]
parking,” id. at 77. These allegations, even if viewed in the aggregate, simply do
not suggest the existence of any “ongoing discriminatory policy” that extends into
the limitations period. Tassy, 51 F.4th at 532; see Patterson v. County of Oneida, 375
F.3d 206, 220 (2d Cir. 2004). The district court therefore did not err by
“consider[ing] only those claims that are not time-barred” with respect to Freud’s
discrimination and retaliation claims. Sp. App’x at 13.
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Based on the timely allegations, the district court properly dismissed
Freud’s discrimination and retaliation claims, both of which require Freud to
plausibly allege that his “employer took [an] adverse action against him.” Vega,
801 F.3d at 87 (Title VII discrimination claim); see also Hicks v. Baines, 593 F.3d 159,
166 (2d Cir. 2010) (Title VII retaliation claim). For purposes of a discrimination
claim under Title VII, “an adverse employment action” is one that “materially . . .
change[s] . . . the terms and conditions of employment” and “is more disruptive
than a mere inconvenience or an alteration of job responsibilities.” Vega, 801 F.3d
at 85. We have identified several “[e]xamples of materially adverse changes,”
which “include termination of employment, a demotion evidenced by a decrease
in wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities,” and “the assignment of a disproportionately
heavy workload.” Id. (internal quotation marks omitted).
Freud alleges no such changes; instead, he protests, among other things, that
Defendants assigned him to “a very difficult class for summer school,” App’x
at 84; placed him in a classroom on a floor without a restroom, see id. at 86; and
required him to work with – in his view – “very low[-]functioning and
high[-]maintenance students,” id. But these alleged actions constituted “mere
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inconvenience[s] or . . . alteration[s] of job responsibilities,” and did not materially
alter “the terms and conditions of [Freud’s] employment.” Vega, 801 F.3d at 85.
Although Freud argues on appeal that he had a “disproportionately heavy
workload,” Freud Br. at 35, the complaint only alleges that he was assigned
responsibilities within his role as a special-education teacher and states nothing to
suggest that his workload was distinctively onerous compared to those of his
colleagues. Because Freud has failed to plausibly allege an adverse employment
action, the district court properly dismissed his discrimination claims.
Freud’s retaliation claims fare no better. Although the definition of an
adverse employment action for claims of retaliation “covers a broader range of
conduct than . . . for claims of discrimination,” Vega, 801 F.3d at 90, a plaintiff must
still plausibly assert that the adverse employment action is “harmful to the point
that it could well dissuade a reasonable worker from making or supporting a
charge of discrimination,” Duplan v. City of New York, 888 F.3d 612, 626–27 (2d Cir.
2018); see also Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 57 (2006). “Petty
slights or minor annoyances that often take place at work,” on the other hand, “do
not constitute actionable retaliation.” Hicks, 593 F.3d at 165 (alteration omitted).
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In this case, Freud alleges that Defendants retaliated against him by failing
to inform him about an upcoming field trip, by requiring him to “go directly
[through]” an assistant principal for the classroom supplies he needed, by
delaying the delivery of iPads for his students, and by assigning him to teach a
remote class during the COVID-19 pandemic “inside the school building rather
than from home.” App’x at 83, 88. Because none of the alleged employment
actions amounted to more than minor annoyances that would not “dissuade a
reasonable worker from making or supporting a charge of discrimination,” the
district court did not err in dismissing Freud’s retaliation claims. Duplan, 888
F.3d at 627.
Freud has also failed to state a claim for hostile work environment, which
requires him to plausibly allege that “the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of [his] employment.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (internal quotation marks omitted). In determining
whether a work environment is hostile, we consider the totality of the
circumstances, which includes “(1) the frequency of the discriminatory conduct;
(2) its severity; (3) whether it is threatening and humiliating, or a mere offensive
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utterance; and (4) whether it unreasonably interferes with an employee’s work
performance.” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotation
marks omitted).
Freud’s allegations – even when considered in the aggregate – do not
suggest that Freud worked in a school that was “permeated with discriminatory
intimidation, ridicule, and insult.” Harris, 510 U.S. at 21 (internal quotation
marks omitted). At most, Freud has identified an assistant principal’s episodic
remarks allegedly expressing ignorance and dislike of his religious observance.
See App’x at 83–84 (asking Freud whether all Jews “leave early from [their] job[s]
on Fridays” and commenting that “Jews have it made” when Freud left school
early). But the case law is clear that “[s]imple teasing, offhand comments, and
isolated incidents . . . [do] not amount to discriminatory changes in the terms and
conditions of employment.” Holtz v. Rockefeller & Co., 258 F.3d 62, 75 (2d Cir.
2001) (alteration omitted) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998)). Even though Freud’s allegations may reflect that his superiors were at
times “harsh, unjust, and rude,” Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002),
he has failed to allege sufficient facts to show that “the complained of conduct . . .
create[d] an environment that a reasonable person would find hostile or abusive,”
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Patane, 508 F.3d at 113. We therefore conclude that the district court properly
dismissed Freud’s hostile work-environment claim.
We have considered Freud’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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