Montano v Department of Educ. of City of N.Y.

Annotate this Case

Download PDF

Montano v Department of Educ. of City of N.Y. 2012 NY Slip Op 32283(U) August 30, 2012 Supreme Court, New York County Docket Number: 100238/2012 Judge: Geoffrey D. Wright Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 91512012 [* 1] SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY Justice Index Number : 100238/2012 MONTANO. GUILLERMINA vs. NYC DEPARTMENT OF EDUCATION SEQUENCE NUMBER : 001 INDEX NO. MOTION DATE MOTION SEQ. NO. DISMISS , J.S.C. Dated: 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... h4-CASE DISPOSED MOTION I : 0GRANTED S ................................................ DENIED 0 NON-FINAL DISPOSITION ORANTED IN PART 0OTHER SUBMIT ORDER 0SETTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] P 1ainti ff, Index # 100238/12 DECISION -against- THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YOKK, F CITY SCHOOL DISTRICT r m OF THE CITY OF NEW YORK and THE CITY OF NEW YORK. Defendants. Present: Hon. Geoffrey D. Wright RECITATION , AS REQUIRED BY CPLR 22 19(A), of the papers considered in the review of this Motion to dismiss. PAPERS Notice of Motion and Affidavits Annexed...... Order to Show Cause and Affidavits Annexed Answering Affidavits ....................................... Replying Affidavits. ........................................ Exhibits ............................................................. Other..................cross-motion........................... NUMBERED 1 -- 2 -3, 4 Upon the foregoing cited papers, the DecisiodOrder on this Motion is as follows: Defendants, The Department of Education of the City of New York, and the City School District of the City of New York' ("Defendants") move to dismiss the Plaintiff's complaint in its entirety on the grounds that the complaint fails to state a cause of action. Specifically, Defendant's claim that Plaintiff fails to state facts supporting her allegations of gender discrimination and that Plaintiff has not alleged that she suffered an adverse employment action. The motion to dismiss is granted. This is a civil action based upon Defendant's violations of the Executive Law $296, and New York City Administrative Code 8-107 and alleges discrimination against 'Plaintiff withdrew her claims against the City of New York only. [* 3] Plaintiff due to her gender and a violation of equal protection. Plaintiff, Guillerinina Montana, currently employed by the Department of Education as a probationary Assistant Principal ( AP ) commenced this action pursuant to New York State Executive Law 8296 ( SHRL ) and New York City Administrative Code 5 8- 107 ( CHRL ), alleging that Defendants discriminated against her due to her gender. Plaintiff received satisfactory evaluations for the 2007-2008, 2008-2009,2009-2010,2@ 10-20 1 1 school years and has successfully completed the first four years of her probation. Plaintiff claims the Defendants subjected her to defamatory charges, disparate treatment, a hostile work environment, and discriminatory treatment due to her gender. The crux of Plaintiff s claims involve the Principal, Ms. Zigelman ( Zigelman ) who is also a woman. Specifically, Plaintiff accuses Zigelman of speaking to her in a hostile tone, increasing her workload while ignoring the other APs, repeatedly harassing her with letters summoning her to meetings that may result in disciplinary action and favoring and accommodating the males in her school to the detriment of the females. In particular, Plaintiff claims Zigelman, accused Plaintiff of being solely responsible for the NYS Ed., Dept., sanctioning the school for not properly storing state exams even though two inale APs had keys and access to the testing closet. In addition, Plaintiff alleges that when new directives are given she is the only one held accountable and that she was Testing Coordinator for two consecutive years at which time the Zigelman did everything to sabotage her perf ormance. Plaintiff contends she has been excluded from meetings, not invited to lunch and had to perform a greater amount of formal and informal observations. Moreover, Plaintiff argues that she was late once or twice and was forced to punch in, while her inale counterparts were repeatedly late and were not required to punch in. As a result of these actions, Plaintiff alleges that Defendants violated Executive Law $296 and thus, she has been damaged. Defendants argue that Plaintiff s complaint fails to provide Defendant s with fair notice of the nature and grounds of her gender discrimination claims and that instead Plaintiff provides conclusory statements. Defendants argue Plaintiff s complaint is devoid of any factual allegations that suggest she suffered an adverse employment action or that the alleged adverse action, being issued a single letter to her file and a warning was motivated by discriminatory animus based on her gender. Moreover, Defendants poiqt out that Plaintiff accuses the Principal, Zigelman of trying to sabotage her perforinaiice and that Zigelman, like the Plaintiff is also a woman. In considering a motion to dismiss for failure to state a cause of action under (CPLK 32 11 [a] [ 7 ] ) ,the Court is required to accept as true the facts as alleged in the complaint, accord the Plaintiff the benefit of every favorable inference and strive to determine only whether the facts alleged fit within any cognizable legal theory (S&oloff v. Harriinan Estates Dev. Corp., 96 NY2d 409, 414 [2001]. In addition, employment discrimination cases arc themselves generally reviewed under a notice pleading standard. [* 4] .- Under thc standard, Plaintiff need not plead specific facts establishing a prima facie case of discrimination, but need only give a fair notice of the nature of the claim and its grounds (Vig v. New York Hairspray Co., 67 A.D.3d 140, 145 ( lStDept. 2009) citing Swierkiewicz v Soreina N.A., 534 U.S. 506, 5 14-5 15 [2002]). The standards for recovery under SHRL is reviewed using the McDonnell DoudaS (4 1 1 US 792 [I 19731) burden-shifting approach which requires that the Plaintiff establish (1) she is a ineinber of a protected class; (2) she is qualified for the position; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Once that minimal showing is made, the burden shifts to the defendant to articulate through competent evidence nondiscriminatory reasons that actually motivated defendant at the time of its action (id.At 802). The standard under the (CHRL) is required to be liberally construcd independently from its state and federal counterparts in order to accomplish the statute s uniquely broad and remedial purposes the broader purposes. However the liberal construction does not connote an intention that the law operates as a general civility code. Rather, it allows for defendants to avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences (Williams v, New York City Housing Authority, 61 A.D.3d 62, 872 N.Y.S.2d 27 (1 Dept. 2009)). To determine whether an actionable hostile work environment claim exists, the court must examine the totality of the c circumstances including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee s work performance (Khalil v. State, 17 Misc.3d 777, 847 N.Y.S.2d 390, N.Y. Sup., [2007]) citing (Harris v. ForkliA Systems. Inc., 5 10 U S . 17,21, [ 19931). Isolated, minor acts or accessional episodes are generally insufficient to meet the threshold required of a hostile work environment. However, a single act can meet the threshold if it is extraordinary severe or it can and does work a transformation of the plaintiff s work place (Id.at 784). In this case, Plaintiff s opposition papers are rife with conclusory assertions, contradictions and devoid of any evidence she was discriminated based on her gender or subjected to a hostile work environment. Moreover, Plaintiff fails to make out a prima facie case of gender discrimination because she cannot establish she suffered an adverse employment action or that the adverse action occurred under Circumstances giving rise to an inference of gender discrimination. It is unclear how the facts as alleged by Plaintiff fit within any cognizable legal theory nor has Plaintiff demonstrated her workplace was permeated with discriminatory intimidation, ridicule and insult that was sufficiently severe or pervasive to alter the tenns or conditions of employment so as to make out a claim ¬or hostile work ciivironlnent (Ferrer v. New York State Div. Of Human Rights, 82 [* 5] a A.D.3d 43 1, 9 1 8 N.Y. S.2d 405 [20 1 11, quoting Harris v. forklift Sys.. Inc., 5 10 U.S. 17, 21, [1993]). Notably, Plaintiffs contends that she was the target of unfounded letters but only references the letter to file dated November 1,201 1.Jt appears that the letter was given to Plaintiff as a result of the disappearance of state exams. The State Department of Education sanctioned the school for not storing the exaim properly. Plaintiff claims Zigelman was completely responsible for, yet blamed the Plaintiff, even though the male APs had keys to the closet. The fact that Plaintiff received a letter to file and a warning of the possibility of being rated unsatisfactory and terinivated from her probationary AP position docs not constitute an adverse employment action. Indeed, none of these actions actually occurred. Plaintiff does not allege that she received an unsatisfactory rating on her evaluation, her probation was discontinued, or that she suffered some type of demotion to include financial, or job title. Notably, Plaintiff contends she was given additional responsibility. Plaintiff fails to demonstrate how receiving the letter was motivated by gender discrimination. Furthermore, Plaintiffs assertions that she had to perform a greater amount of formal and inforinal observations, was subjected to hostile tones, excluded from meetings, not invited to lunch and threatened with discipline is not evidence of an adverse employment action or do they prove that these alleged actions were based on her gender. These are all conclusory assertions that are unsupported by Plaintiffs factual allegations and are insufficient to state a cause of action for gender discrimhation. For the reasons discussed, Defendant s motion to dismiss the complaint is granted. FILED mV CLERK$ OFFICE w r Dated: August 30, 201- N ¬W YORK AJSC JUDGE GEOFFREY D. WRIGHT -.-.... Ading Justice of the Supreme Court

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.