Curry-Malcolm v. Rochester City Sch. Dist.

389 F. Supp. 3d 189
CourtDistrict Court, W.D. New York
DecidedJuly 11, 2019
Docket18-CV-6450L
StatusPublished
Cited by5 cases

This text of 389 F. Supp. 3d 189 (Curry-Malcolm v. Rochester City Sch. Dist.) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Curry-Malcolm v. Rochester City Sch. Dist., 389 F. Supp. 3d 189 (W.D.N.Y. 2019).

Opinion

DAVID G. LARIMER, United States District Judge

INTRODUCTION: MALCOLM III

Plaintiff Bernice Curry-Malcolm ("plaintiff"), proceeding pro se , brings this action *194against defendants Rochester City School District ("RCSD") and its superintendent, Barbara Deane-Williams ("Deane-Williams"). Plaintiff is a 61-year-old African-American woman who was employed with the RCSD starting in April of 2015 as a Central Office Coordinating Administrator of Special Education ("CASE") as a probationary employee. Plaintiff's position was terminated in March 2017 along with twenty-two other CASE employees as a result of budgetary concerns. Plaintiff was then placed on a preferred eligibility list for seven years, meaning she could be recalled and resume employment if a position were open, just as the other CASE employees could.

Plaintiff was offered another probationary appointment on June 14, 2017 as a "TCOSE" with a decreased salary after she lost her initial CASE position. Plaintiff declined this offer and was eventually recalled from the preferred eligibility list and rehired by the RCSD on November 20, 2017 as a probationary CASE employee.

In addition to her multiple complaints filed in the NYSDHR, two of which have been dismissed with prejudice, plaintiff has now filed a total of three lawsuits in federal court against the RCSD and Deane-Williams. See Malcolm v. Rochester City School Dist., et al. , 17-CV-6873 (W.D.N.Y. 2017) (action alleging discrimination by the RCSD and an assortment of district employees); Malcolm v. Assoc. of Supervisors and Administrators of Rochester , 17-CV-6878 (W.D.N.Y. 2017) (action alleging discrimination by the RCSD, Deane-Williams, and plaintiff's union). Upon receipt of her right to sue letter from the EEOC in her fifth charge filed in the NYSDHR, plaintiff then filed the present lawsuit (Malcolm III ).

In the present lawsuit, plaintiff alleges defendants discriminated against her with respect to her employment in violation of the Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. ; the Age Discrimination in Employment Act of 1967 ("ADEA"), 42 U.S.C. § 1988 ; New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq. ; 42 U.S.C. § 1983 ; and the New York Constitution's Equal Protection clause, N.Y. Const. Art. I, § 8 and 11, as well as a state law breach of contract and breach of collective bargaining agreement claim against defendants. In addition to asserting similar claims to those made in her prior two lawsuits, plaintiff also pleads facts alleging retaliation following her recall to the RCSD. Plaintiff alleges that the RCSD has been retaliating against her by, among other things, allegedly recording their conversations, changing her marital status on tax forms, and hacking into her personal cell phone.

In lieu of an answer, defendants moved to dismiss the complaint pursuant to Fed. R. Civ. Proc. 12(b)(1), 12(b)(2), 12(b)(4), 12(b)(5) and 12(b)(6). Plaintiff, in her complaint and in her reply papers, requested a stay in the proceedings and to amend her complaint.

For the reasons set forth below, defendant's motion to dismiss (Dkt. #2) is granted, and the Complaint is dismissed. Plaintiff's motion to amend the complaint (Dkt. #12) is denied, and plaintiff's request to stay proceedings (Dkt. #1) is denied.

DISCUSSION: MALCOLM III

Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed for failure to state a claim upon which relief can be granted. Fed. R. Civ. Proc. 12(b)(6). In deciding a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6), *195the court's review is limited to the complaint, and those documents attached to the complaint or incorporated therein by reference. See Tellabs, Inc. v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 322-23, 127 S. Ct. 2499, 168 L. Ed.2d 179 (2007). A court must "accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman , 18 F.3d 147, 150 (2d Cir. 1994), citing Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch College , 835 F.2d 980, 982 (2d Cir. 1987). However, "bald assertions and conclusions of law will not suffice" to defeat a motion to dismiss. See Reddington v. Staten Island Univ. Hosp. , 511 F.3d 126, 126 (2d Cir. 2007). "A plaintiff's obligation ... 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." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Where a plaintiff "ha[s] not nudged [her] claims across the line from conceivable to plausible, [plaintiff's] complaint must be dismissed." Ashcroft v. Iqbal , 556 U.S. 662, 680, 129 S.

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389 F. Supp. 3d 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curry-malcolm-v-rochester-city-sch-dist-nywd-2019.