18‐2980‐cv
Massaro v. The Department of Education



                            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 21st day of May, two thousand nineteen.

PRESENT:
           JON O. NEWMAN,
           DENNIS JACOBS,
           CHRISTOPHER F. DRONEY,
                      Circuit Judges.
_________________________________________

YVONNE MASSARO,

                  Plaintiff‐Appellant,

                           v.                                   No. 18‐2980‐cv

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT
OF THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT
OF EDUCATION,


           Defendants‐Appellees.
_________________________________________
FOR PLAINTIFF‐APPELLANT:                     NATALIA KAPITONOVA, (Stewart Lee
                                             Karlin, on the brief), Stewart Lee
                                             Karlin Law Group, P.C., New York,
                                             NY

FOR DEFENDANTS‐APPELLEES:                    JULIE STEINER, Asst. Corp. Counsel,
                                             (Richard P. Dearing, Scott Shorr,
                                             Asst. Corp. Counsel, on the brief), for
                                             Zachary W. Carter, Corp. Counsel of
                                             the City of New York, New York, NY

      Appeal from a judgment of the District Court for the Southern District of

New York (Lorna G. Schofield, District Judge), dismissing a complaint alleging

age discrimination and retaliation.

      UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment is affirmed in part, reversed in

part, and remanded.

       Yvonne Massaro, a former public school teacher, appeals from a judgment
of the District Court for the Southern District of New York (Lorna G. Schofield,
District Judge) dismissing under Fed. R. Civ. P. 12(b)(6) her complaint against the
New York City Department of Education (“DOE”). She alleged that school
personnel violated the Age Discrimination in Employment Act (“ADEA”) by
discriminating against her on the basis of her age and retaliating against her for
bringing an earlier age‐discrimination lawsuit. The District Court ruled that
Massaro had failed to exhaust her age‐discrimination claim and that the
allegedly retaliatory actions were not temporally proximate enough to the earlier
lawsuit to permit an inference of a causal connection. We assume the parties’
familiarity with the facts and procedures of this litigation and recount only
matters necessary for disposition of this appeal.
       On DOE’s motion to dismiss, “all factual allegations in the complaint are
accepted as true and all inferences are drawn in [Massaro’s] favor.” Littlejohn v.
City of New York, 795 F.3d 297, 306 (2d Cir. 2015).

                                         2
       Massaro was a teacher at the Edward R. Murrow High School, a New York
City public school, from 1993 until her retirement in 2016, teaching photography
there starting in 2009. After her first suit against DOE was dismissed, Massaro v.
Department of Education of City of New York, No. 08 CIV. 10678 LTS FM, 2011 WL
2207556 (S.D.N.Y. June 3, 2011), aff’d, 481 F. App’x 653 (2d Cir. 2012), she filed a
second lawsuit against DOE on December 19, 2011 (“2011 lawsuit”), which is the
suit underlying the retaliation claim at issue on this appeal.1 The 2011 lawsuit,
after amendment of the complaint, alleged, among other things, age
discrimination and retaliation for filing the first lawsuit. A state court dismissed
that second lawsuit, and the Appellate Division affirmed. Massaro v. Department
of Education of City of New York, 993 N.Y.S.2d 905 (N.Y. App. Div., 1st Dep’t 2014).
      In the pending lawsuit, Massaro alleges that, beginning in 2012, while the
2011 lawsuit was pending, she was the subject of a campaign of harassment by
the head of her school’s fine arts program, and the school’s new principal. She
alleges the following conditions and actions to which she, but not other teachers,
was subjected:
        ● her classes were overcrowded;
      ● she was assigned a disproportionately high number of students with
serious behavioral and developmental problems;
      ● she was assigned to classrooms with no temperature control, which were
excessively cold in winter and extremely hot in summer;
       ● beginning in 2014, she was assigned a teaching schedule of four
consecutive one‐hour classes, leaving her no time between periods to prepare for
class or use the bathroom;
       ● two infractions were recorded in Massaro’s file that were not attributable
to her, and she was improperly deemed to have been “excessively absent” based
on absences she incurred while she was serving on grand jury duty.

       Massaro named several teachers who were not subjected to each of the
negative conditions listed above, along with their ages, which ranged from late
20s to about 50.


        1 The District Court dates the initiation of the 2011 lawsuit to October 2011, but according to the
state court docket it was filed in December. See Complaint, Massaro v. Department of Education, No.
0114214/2011 (N.Y. Sup. Ct. Dec. 19, 2011).
                                                      3
      Massaro filed a charge of discrimination with the EEOC in August 2016.
The EEOC charge consisted of a one‐page completed form and a seven‐page
narrative addendum. On the form, Massaro checked a box indicating that her
claim was based on “retaliation”; another box marked “age” was left blank.
       In the pending action, removed to federal court, Massaro claims that she
was subjected to age discrimination and that she was retaliated against for
pursuing the 2011 lawsuit. The District Court granted DOE’s motion to dismiss.
Massaro v. Department of Education of City of New York, No. 17 CIV. 8191 (LGS),
2018 WL 4333989 (S.D.N.Y. Sept. 11, 2018). The District Court concluded that
Massaro had failed to exhaust her age‐discrimination claim because it was not
asserted in the EEOC charge nor was it reasonably related to the allegations of
retaliation that were asserted in the charge, including the addendum. Id. at *3. On
the retaliation claim, the District Court concluded that Massaro was precluded
by res judicata from claiming retaliation on the basis of any adverse actions that
occurred prior to the dismissal of the 2011 lawsuit in May of 2013, and that the
adverse actions alleged to have taken place after the dismissal were too
temporally remote from the initiation of that lawsuit in 2011 to show a
cognizable retaliatory motive. Id.
      This Court conducts a de novo review of a dismissal for failure to state a
claim. See Littlejohn, 795 F.3d at 306.
       1. Age discrimination. In her EEOC charge, Massaro checked a box
indicating that the alleged discrimination was based on “retaliation”; a separate
box for indicating discrimination based on “age” was left blank. However, no
party contends, and the District Court did not find, that this omission is
dispositive. It is not. See Williams v. New York City Housing Authority, 458 F.3d 67,
70‐71 (2d Cir. 2006). What Massaro relies on are the facts alleged in her
addendum to the EEOC charge. However, the addendum makes no reference to
age discrimination; it merely states Massaro’s age. This did not give the EEOC
adequate notice that Massaro had made a claim of age discrimination. See
Williams, 458 F.3d at 70. Because Massaro failed to exhaust her age‐
discrimination claim, the District Court’s ruling dismissing it is affirmed.
      2. Retaliation. “[F]or a retaliation claim to survive a . . . motion to dismiss,
the plaintiff must plausibly allege that: (1) defendants discriminated — or took
an adverse employment action — against [her], (2) ‘because’ [s]he has opposed
any unlawful employment practice.” Vega v. Hempstead Union Free School District,

                                          4
801 F.3d 72, 90 (2d Cir. 2015) (Title VII context).2 In deciding whether an
allegation is plausible, “judges [are] to rely on their ‘experience and common
sense,’ and to consider the context in which a claim is made.” Irrera v.
Humpherys, 859 F.3d 196, 198 (2d Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009)). As with all retaliation claims, a plaintiff must show that adverse
action was taken because of protected activity. See Lovejoy‐Wilson v. NOCO Motor
Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001) (retaliation claim under Americans
With Disabilities Act) (“ADA”).
       An employee engages in protected activity that might give rise to a
retaliation claim when she “participate[s] in any manner in . . . litigation under
[the ADEA].” 29 U.S.C. § 623(d).
       An adverse employment action, in the context of a retaliation claim, “is
any action that ‘could well dissuade a reasonable worker from making or
supporting a charge of discrimination.’” Vega, 801 F.3d at 90 (quoting Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006)). “Context
matters” in this analysis: something might be a “petty slight” to one person but
“matter enormously” to another, such that it could “deter a reasonable employee
from complaining about discrimination.” Id. (quoting Burlington Northern, 548
U.S. at 69). “This . . . covers a broader range of conduct than does the adverse‐
action standard for claims of [substantive] discrimination,” id., which are limited
to “discriminatory actions that affect the terms and conditions of employment,”
id. (quoting Burlington Northern, 548 U.S. at 64).
      As for causation, a causal connection can be shown “indirectly, by
showing that the protected activity was followed closely by discriminatory
treatment.” Littlejohn, 795 F.3d at 319 (quoting Gordon v. New York City Board of
Education, 232 F.3d 111, 117 (2d Cir. 2000)).
       The District Court deemed Massaro’s protected activity to have occurred
only when her second lawsuit was filed in December 2011 and declined to
consider any litigation events that occurred during the pendency of that lawsuit,
prior to its dismissal in May 2013. However, this Court has previously measured
the occurrence of a protected activity from mid‐litigation events, such as
notifications to appear for a deposition or as a witness. See Richardson v. New York
        2 ADEA claims are analyzed under the same framework as claims under Title VII and the ADA.
See Kopchik v. Town of East Fishkill, New York, 759 F. App’x 31, 35 (2d Cir. 2018) (applying Title VII) (citing
Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000)); Palumbo v. St. Vincent’s Medical Center, 4 F. App’x 99,
102 (2d Cir. 2001) (applying ADA).
                                                       5
State Department of Correctional Service, 180 F.3d 426, 446‐47 (2d Cir. 1999),
abrogated on other grounds by Burlington Northern, 548 U.S. at 53; Treglia v. Town of
Manlius, 313 F.3d 713, 720‐21 (2d Cir. 2002) (in ADA context, specifically rejecting
employer’s argument that the protected activity occurred only upon employee’s
filing of administrative charges); see also Infantolino v. Joint Industry Board of
Electrical Industry, 582 F. Supp.2d 351, 359 (E.D.N.Y. 2008).
       As for retaliation, Massaro alleged several actions that “could well dissuade
a reasonable worker from making or supporting a charge of discrimination.”
Vega, 801 F.3d at 91 (quoting Burlington Northern, 548 U.S. at 57) (emphasis in
Vega). Although some of the conditions she complains of, considered
individually, might reasonably be tolerated by many teachers, the allegation of
their combination, alleged to have been imposed only on her, suffices to survive
a motion to dismiss.
       With respect to causation, the District Court erred in applying res judicata
to preclude consideration of the adverse actions that occurred during the
pendency of the 2011 lawsuit. “[W]hen the second action concerns a transaction
occurring after the commencement of the prior litigation, claim preclusion
generally does not come into play.” Legnani v. Alitalia Linee Aeree Italiane, S.P.A.,
400 F.3d 139, 141 (2d Cir. 2005) (holding that res judicata does not bar employee’s
Title VII retaliatory discharge action) (internal quotation marks omitted).
       Although DOE correctly notes that Massaro’s EEOC charge sets August
2013 as the “earliest” “date[] discrimination to[ok] place,” the three‐month gap
between May 2013, when the 2011 lawsuit was dismissed, and August 2013
would not preclude temporal proximity. In the context of a school calendar,
judicial “experience and common sense,” Irrera, 859 F.3d at 198 (quoting Iqbal,
556 U.S. at 679), permit the Court to recognize that May to August is summer
break. In that context, it is plausible that August 2013, the start of a new
semester, was the school personnel’s earliest opportunity to retaliate against
Massaro following the dismissal of her 2011 lawsuit.
       Whether Massaro’s allegations can survive a motion for summary
judgment or a trial remains to be determined upon remand. We rule only that the
retaliation allegations, taken together, are sufficiently plausible to survive a
motion to dismiss.



                                          6
     Affirmed as to dismissal of age discrimination claim, reversed and
remanded as to retaliation claim.
                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk




                                       7
