Full opinion text
DECISION AND ORDER VICTOR MARRERO, District Judge. I. BACKGROUND Plaintiffs Twana Adams (“Adams”) and Josephina Cruz (“Cruz”), and Michael Ebewo (“Ebewo”), Joanne Hart (“Hart”), Julianne Polito (“Polito”), Thomasina Robinson (“Robinson”), and Brandi Schemer (“Schemer”) (collectively, “Plaintiffs”) brought this action against the New York State Education Department (“NYSED”) and certain NYSED officials (collectively, the “State Defendants”), and the City of New York (the “City”), the City’s Department of Education (“DOE”) and certain City and DOE officials (collectively, the “City Defendants”). In their Fourth Amended Complaint, Plaintiffs assert claims alleging various deprivations by the State and City Defendants of Plaintiffs’ rights arising under the United States Constitution, specifically procedural due process of law, equal protection of the laws, freedom of speech, and involuntary servitude, as well as violations of federal statutes prohibiting discrimination on the basis of race, gender, age, disability and national origin. Plaintiffs’ claims arise from their placement in Temporary Reassignment Centers (“TRCs”), so-called “Rubber Rooms,” pending NYSED’s adjudication of disciplinary proceedings brought against Plaintiffs by DOE. By Order dated August 23, 2010, Magistrate Judge Andrew Peck, to whom this matter had been referred for supervision of pretrial proceedings, issued a Report and Recommendation (the “Report”), a copy of which is attached and incorporated herein, recommending that the motions of DOE and NYSED to dismiss Plaintiffs’ Fourth Amended Complaint be granted. The Report further recommends that the Court deny leave to replead, and directed Plaintiffs to show cause why sanctions against them or their counsel under Federal Rule of Civil Procedure 11 should not be imposed. Plaintiffs filed timely objections to the Report. For the reasons stated below, the Court adopts the recommendations of the Report in their entirety. II. STANDARD OF REVIEW A district court evaluating a Magistrate Judge’s report may adopt those portions of the report to which no “specific, written objection” is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law. Fed.R.Civ.P. 72(b); see also Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997). “Where a party makes a ‘specific written objection ... after being served with a copy of the [magistrate judge’s] recommended disposition,’ however, the district court is required to make a de novo determination regarding those parts of the report.” Cespedes v. Coughlin, 956 F.Supp. 454, 463 (S.D.N.Y. 1997) (citing United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)); Fed.R.Civ.P. 72(b). The Court is not required to review any portion of a Magistrate Judge’s report that is not the subject of an objection. See Thomas, 474 U.S. at 149, 106 S.Ct. 466. A district judge may accept, set aside, or modify, in whole or in part, the findings and recommendations of the Magistrate Judge as to such matters. See Fed.R.Civ.P. 72(b); De-Luca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y.1994). III. DISCUSSION Upon de novo review of the full factual record in this litigation, including the pleadings and the parties’ respective papers submitted in connection with the underlying motions to dismiss in this proceeding, as well as the Report and applicable legal authorities, the Court concludes that dismissal of Plaintiffs’ Fourth Amended Complaint is warranted. A summary of earlier proceedings in this litigation may help as backdrop for the Court’s ruling which follows. By Decision and Order dated April 6, 2010, this Court adopted the previous Report and Recommendation of Magistrate Judge Peck dated February 23, 2010, which recommended dismissal of Plaintiffs’ pro se Second Amended Complaint. However, the Court did not accept the recommendation that leave to replead should be denied. At that time, Plaintiffs sought an opportunity to retain counsel to assist them in preparing a revised complaint, and, aided by counsel, Plaintiffs filed a Third Amended Complaint, which Magistrate Judge Peck reviewed and still found deficient in substantial respects. By Order dated May 13, 2010, Magistrate Judge Peck not only granted Plaintiffs leave to file a Fourth Amended Complaint, he also offered detailed guidance regarding the relevant pleading standards as well as analysis of substantive law, and specified how the pleadings could be restated to address the deficiencies he had identified. In that same Order, Magistrate Judge Peck put Plaintiffs on notice of the prospect of sanctions pursuant to Federal Rule of Civil Procedure 11 in the event their amended pleadings, without stating new facts or law, merely retreaded claims previously dismissed, thus doing nothing more than reargue matters that had already been resolved against them. Largely ignoring the law primer Magistrate Judge Peck had provided, and despite the Magistrate Judge’s strong warnings of the potential for sanctions, Plaintiffs, in their Fourth Amended Complaint, substantially failed to heed the Magistrate Judge’s guidance. Had Plaintiffs paid closer attention to the critiques of their earlier pleadings laid out by Magistrate Judge Peck and this Court in previous rulings, they could have avoided at least some of the more grievous flaws embodied in the Fourth Amended Complaint. It is not necessary for the Court to belabor those defects here because they are already sufficiently detailed in the lengthy Report, the factual content and legal analysis of which the Court has adopted as its own, and because those shortcomings were borne out in the Court’s own de novo review of the Fourth Amended Complaint, motion papers and other relevant documents on the record. Here, the Court highlights some of the deficiencies in general terms to offer an overview of its findings of proper grounds for dismissal. By way of some salient examples, the Fourth Amended Complaint reasserts claims that: continue to misstate or omit necessary elements to sufficiently plead certain of its causes of action; are time-barred by applicable statutes of limitations; name as defendants State agencies or officials whose public duties are protected by constitutional immunity, or City officials who clearly had no direct personal involvement in the wrongs Plaintiffs allege; challenge the constitutionality of a provision of the New York Education Law on the basis of a decidedly incorrect standard of review; allege unlawful employment discrimination claims based on race, age, gender or national origin without adequately specifying what role race, age, gender or national origin played in the conduct Plaintiffs assail, or filed against State agencies or officials not qualifying as their employer, and invoke rights under constitutional provisions, such as the Thirteenth Amendment’s prohibition against involuntary servitude, or under other federal statutory law, such as hostile work environment discrimination, that on their face have no application to the facts presented, and that thus assert claims palpably frivolous. Moreover, as the Report also notes with particularity, the Court finds numerous instances of fatal errors and omissions in the briefs both groups of Plaintiffs filed in response to Defendants’ motions. Repeatedly, their papers fail to address substantive grounds raised by Defendants’ motions, thereby supporting a finding that the underlying claims have been abandoned. Plaintiffs’ opposition briefs also impermissibly introduce into the litigation for the first time substantial factual allegations, legal theories and claims not stated in the Fourth Amended Complaint. Indicative of these failings, Hochstadt’s brief consists primarily of a polemic that fills 50 pages swelled with accusations attacking New York school politics and policies while only collaterally and rhetorically touching upon legal points germane to Plaintiffs’ claims. Plaintiffs’ objections to the Report raise two issues that do merit more particular consideration because they contend that Magistrate Judge Peck engaged in impermissible fact-finding. As regards their claims alleging First Amendment violations, Plaintiffs assert that in determining that the speech in question related to internal school matters, rather than to issues of more general public concern, the Report failed to assume facts as Plaintiffs alleged them. Specifically, Adams’s allegations of retaliation are based on her complaining to her principal that a predominantly white school occupying the same building as her predominantly African-American school had better facilities than those available in her school. Polito alleged that she suffered retaliation when she complained to DOE’s Office of Special Investigations charging that her principal had falsified her school’s students’ attendance and grade records. Robinson alleged that she challenged an instruction by her principal directing her to make improper changes of her students’ grades. Polito and Robinson contend that it was not part of their job description to make such complaints, and argue that when they did report their principals’ misconduct on those occasions they were not speaking on their own behalf, but on behalf of their students. Thus, they argue that these allegations should not be dismissed absent discovery needed to develop a fuller record documenting the scope of their job duties as teachers. These Plaintiffs’ conclusory statements that making the complaints in question did not fall within the scope of their job descriptions does not end the inquiry so as to automatically defeat a motion to dismiss and entitle them to discovery on this issue. Reviewing such First Amendment retaliation claims brought by public employees, the Supreme Court and the Second Circuit have recently provided clear instructions articulating the standards that govern a court’s determination of whether a particular public employee’s speech is expressed as a private citizen addressing a matter of general public concern and thus shielded by the First Amendment, or else made pursuant to his official job duties and consequently beyond the ambit of constitutional protection. This guidance is relevant in the Court’s evaluation pursuant to the Twombly/Iqbal plausibility rule to test the sufficiency of a cause of action alleging unlawful retaliation under the First Amendment. See Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In Garcetti v. Ceballos, the Supreme Court reaffirmed that “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (emphasis added). Elaborating on the scope of that protection, the Court narrowed its bounds; it held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 421, 126 S.Ct. 1951. The Garcetti Court further defined speech made “pursuant to” a public employee’s job duties as “speech that owes its existence to a public employee’s professional responsibilities.” Id. Though the Court declined to “articulate a comprehensive framework” for this assessment, it counseled that the applicable test is a “practical one,” and explained that: [fjormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes. Id. at 424-25,126 S.Ct. 1951. Applying Garcetti the Second Circuit has declared that “speech can be made ‘pursuant to’ a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer.” Weintraub v. Board of Ed., 593 F.3d 196, 203 (2d Cir.2010). In Weintraub, the Circuit Court held that the plaintiff, a public school teacher who had filed a union grievance against his supervisor for failure to discipline a student in Weintraub’s classroom, was speaking “pursuant to” his official duties and thus not as a private citizen. Id. at 203. Like Plaintiffs here, Weintraub asserted that he did not file his complaint pursuant to his official duties because his responsibilities as a school teacher did not require him to lodge such complaints, and because nothing in his job description or the Board of Education’s rules unequivocally stated that the speech for which he claimed retaliation was made pursuant to his duties as a public school teacher. The Second Circuit rejected those arguments, finding that Weintraub’s grievance constituted ‘“part- and-parcel of his concerns about his ability to properly perform his duties.’ ” Id. (citation omitted). To distinguish unprotected speech from some expressions related to a speaker’s public job that may be safeguarded by the First Amendment, the Weintraub Court pointed to Garcetti’s observation that “ ‘[w]hen a public employee speaks pursuant to employment responsibilities ... there is no relevant analogue to speech by citizens who are not government employees,’ ” Id. at 203 (quoting Garcetti 547 U.S. at 424, 126 S.Ct. 1951). Under this test, the Second Circuit found that Weintraub’s lodging of his grievance was “not a form or channel of discourse available to non-employee citizens,” and that, rather than voicing his complaint through public means available to citizens generally, what Weintraub had expressed, primarily as a public school teacher rather than as a private citizen, was “an internal communication” governed in the first instance by employer policy. Id. at 204. Significant for a resolution of the instant motions, the Circuit Court characterized the issue of whether a public employee has spoken pursuant to official duties as an “objective inquiry.” Id. at 202. To this Court, this guidance means that the Court is permitted to resolve a motion to dismiss a First Amendment retaliation claim as a matter of law under the Twombly/Iqbal plausibility analysis by making an objective, practical and common sense appraisal of a public employee’s official duties, and not relying solely on the factual or conelusory allegations contained in Plaintiffs’ pleadings about what their job description includes or does not provide for as part of them official duties. In determining whether a claim is plausible, the Court must evaluate the substantive elements plaintiffs must plead to sufficiently state a prima facie cause of action, an examination which is contextually grounded on applicable case law. See Iqbal, 129 S.Ct. at 1947. Here, Garcetti prescribes the substantive “pursuant to” element that governs the content of a properly stated First Amendment retaliation claim, and that, along with Weintraub, elaborates further case law context to guide the Court’s plausibility assessment. In the light of the unequivocal and controlling instructions Garcetti and Weintraub provide to direct the Court’s “objective inquiry,” Weintraub, 593 F.3d at 202, the on the issue before it, the Court is not persuaded by Plaintiffs’ contention that it must accept as decisive fact their assertion that their job description as teachers did not provide for Plaintiffs’ making the complaints at issue, and that discovery and further proceedings are necessary to create a fuller factual record for the Court to properly consider this point. In this Court’s view, when the substantive elements embodied in Plaintiffs’ retaliation claim are weighed against the applicable case law, the facts as pled in the Fourth Amended Complaint are insufficient “to raise a reasonable expectation that discovery will reveal evidence of illegality].” Twombly, 550 U.S. at 556, 127 S.Ct. 1955. As a starting point, for the purposes of this analysis the Court accepts as true Plaintiffs’ factual allegations as now described in the Fourth Amended Complaint concerning the expressions for which they suffered retaliation. Under the Twombly/Iqbal standard Plaintiffs may be entitled to seek relief under the First Amendment if they can state a claim “plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. To do so they must sufficiently show that in connection with the speech at issue, they were speaking as private citizens rather than as public employees and that their statements were not made “pursuant to” their job duties. In other words, Plaintiffs must show that their professional responsibilities as public school teachers did not encompass calling to their supervisors’ attention the misconduct of them principals pertaining to student records for which Plaintiffs alleged retaliation. In the Court’s analysis, Plaintiffs’ First Amendment claim as pled is not plausible on its face because it does not comport with a practical test of objective experience nor with common sense — the controlling guidance that applicable case law prescribes. See Iqbal, 129 S.Ct. at 1950 (declaring that in determining the plausibility of a claim under the Twombly/Iqbal rule, courts may view the plaintiffs factual allegations in the light of the court’s “judicial experience and common sense.”). Two major considerations compel the Court’s conclusion. First, under Iqbal, and when viewed within the legal framework provided by Garcetti and Weintraub, Plaintiffs’ conclusory allegation that it was not part of their job description to complain to supervisors within the chain of command or pursuant to employer policy about their principals’ improper conduct in question “[is] not entitled to an assumption of truth.” Iqbal, 129 S.Ct. at 1950. Garcetti expressly counsels that formal job descriptions “often bear little resemblance the duties an employee actually is expected to perform,” and that the listing of a specific task in a job description “is neither necessary nor sufficient” to demonstrate that performing the particular task at issue falls within the scope of the employees official duties for First Amendment purposes. 547 U.S. at 424-25, 126 S.Ct. 1951 (emphasis added). Just as explicitly, Weintraub instructs that speech can be made “pursuant to” a public employee’s official duties even if “not required by, or included in,” the employee’s job description. 598 F.3d at 203. Accordingly, in passing upon the sufficiency of Plaintiffs’ First Amendment retaliation claim, it is not the case that the Report, or the Court on this occasion, has impermissibly engaged in fact-finding or failed to assume as true Plaintiffs’ factual allegations as pled. Rather, the Court expresses a determination that, for the reasons stated, it cannot assume the truth of particular facts as alleged by Plaintiffs. Second, even if the Court did accept all of Plaintiffs’ factual allegations as pled, it nonetheless finds their First Amendment claim as a whole implausible for other reasons. Analogous to swallowing a poison pill, for the purposes of this analysis assuming the truth of a fallacy embodied in a supposed factual allegation actually works to invalidate the entire claim by rendering it implausible, if not bizarre. To elaborate further, Plaintiffs cannot plausibly show, as was the case in Weintraub as well, that the complaints they filed with school authorities alleging that their principals were “falsifying attendance records and raising students’ grades to grades that the students had not legitimately earned,” did not relate to Plaintiffs’ responsibilities as public school teachers. (Plaintiffs’ Objections to Magistrate’s Report and Recommendations Dated August 23, 2010, dated September 29, 2010, at 16, 17). In this connection, the Court notes that in voicing those complaints, Plaintiffs assert that they spoke to their principals or administrators, not to sources external to the public school system. To that extent, what they expressed in each instance constituted an “internal communication” conveyed through a channel of discourse not available to non-employee citizens. Weintraub, 593 F.3d at 204. This circumstance further undercuts the plausibility of Plaintiffs’ showing that they uttered the speech at issue as private citizens rather than as public school teachers. Accordingly, the Court concludes that, based on the objective inquiry Weintraub instructs, it cannot find plausibility in Plaintiffs’ First Amendment claim based on their allegations about the scope of their professional duties as teachers. Only in an odd Wonderland world could a court of law find it plausible that a public school principal’s explicit order to a teacher directing her to falsify her own students’ grades “has no bearing” on the teacher’s official responsibilities as a teacher, or that in such a case the teacher’s “job duties were to obey the principal or face insubordination charges” (Id. at 17.) Arguably, on objective consideration Plaintiffs’ contention regarding the scope of their professional duties might have plausible bearing as applied to a complaint about falsification of student records lodged with the principal by a school custodian or crossing guard, or to a teacher’s report to school officials alleging that a principal beat his spouse at home. But for the purposes of reviewing the instant motions, this Court cannot find plausible the necessary implications of Plaintiffs’ First Amendment claim as it pertains to a teacher speaking within the practical domain of what reason and common sense would classify as the proper scope of a teacher’s duties: that a public school principal’s direction to a teacher to falsify her students’ grades and attendance records is none of that teacher’s business. Thus, here closer to home, Plaintiffs’ argument would suggest that New York’s public school system operates akin to a military regime, with principals as martinets and the teachers as obedient good soldiers, their official duties encompassing only those responsibilities minutely spelled out in a written code, and demanding mechanical compliance with all orders of the principal except as they relate to any tasks specifically excluded by the job description as beyond the scope of the teacher’s official roles. Under Iqbal’s “common sense” counsel, as well as under Garcetti’s “practical” test, that proposition cannot hold. Plaintiffs’ cannot plausibly establish that their complaining about a principal’s falsification of student grades or attendance records is not “part-and-parcel” of their concerns as school teachers. Weintraub, 593 F.3d at 203. The second of Plaintiffs’ objections to the Report that the Court will address more specifically relates to their Fourteenth Amendment due process claim. In reviewing this cause of action as stated in the Fourth Amended Complaint, the Report, relying on O’Connor v. Pierson, 426 F.3d 187 (2d Cir.2005), found no deprivation of property rights as regards to Plaintiffs’ employment as tenured teachers because Plaintiffs were not terminated prior to the conclusion of their disciplinary hearings, but instead were relieved of their job duties and transferred to the TRC’s while maintained on fully paid leave. In O’Con-nor, the Second Circuit stated that “no court has held that an employee on fully paid leave has been deprived of a property right merely by virtue of being relieved of his job duties.” Id. at 199. Plaintiffs’ objections to the Report point to a footnote in O’Connor in which the Circuit Court noted that a teacher suspended with pay but who resigns may have grounds to bring a procedural due process claim as if actually fired from his job if he can state a claim of constructive discharge. See id. at 200 n. 5 (citing Parrett v. City of Connersville, 737 F.2d 690, 694 (7th Cir.1984)). But, though in opposition to dismissal of their due process claim Plaintiffs now rely on language from Parrett to support their proposition that they were unconstitutionally deprived of a property interest in their positions as tenured teachers while suspended with pay, the Court finds no provision in the Fourth Amended Complaint in which Plaintiffs expressly assert constructive discharge either as a distinct claim or as a theory of liability. Nonetheless, even if any of their allegations could be fairly construed to state such a claim, the Court is not persuaded that the circumstances alleged here would come remotely close to those presented in Parrett to satisfy the rigorous test of sufficient deliberate, abusive or otherwise intolerable working conditions that must exist to justify an involuntary resignation, thus warranting an application of the constructive discharge doctrine. See Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 89 (2d Cir.1996); Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir.1993). The Court notes that except for Robinson and Schemer, none of the Plaintiffs actually resigned involuntarily from their positions prior to the resolution of their disciplinary hearings. Rather, they remained on fully paid leave at all times. Moreover, even if any of the Plaintiffs could establish a deprivation of property by means of constructive discharge for the purposes of Fourteenth Amendment analysis, they nonetheless could not sufficiently state such a claim if they received all the process of law that was due under the circumstances. See O’Connor, 426 F.3d at 198-200; Parrett, 737 F.2d at 695-96. Here, the Court is persuaded that Plaintiffs could not make out a sufficient claim of denial of due process, for either pre- or post-deprivation loss of property, in view of their having received all the process that was due through the availability of adequate remedies provided under Article 78 of the New York State Civil Procedure Law and Rules, both to challenge as unreasonable the pre-deprivation delays they experienced, or to attack their resignations as coerced. See New York State Nat’l Org. for Women v. Pataki, 261 F.3d 156, 168 (2001), Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir.), cert. denied, 469 U.S. 932, 105 S.Ct. 328, 83 L.Ed.2d 265 (1984). Accordingly, for substantially the reasons set forth in the Report, the Court grants the motions of DOE and NYSED to dismiss Plaintiffs’ Fourth Amended Complaint herein. IV. ORDER For the reasons discussed above, it is hereby ORDERED that substantially for the reasons stated in the Report and Recommendation of Magistrate Judge Andrew Peck dated August 23, 2010 (the “Report,” Docket No. 237), the motions of defendants New York State Education Department, Richard P. Mills, David Steiner and Deborah Marriott (Docket No. 217), and of defendants New York City Department of Education, Michael Bloomberg, and Joel Klein (Docket No. 214), to dismiss the Fourth Amended Complaint of plaintiffs Twana Adams, Josephina Cruz, Michael Ebewo, Joanne Hart, Julianne Polito, Thomasina Robinson, and Brandi Schemer (collectively, “Plaintiffs”) without leave to replead are GRANTED; and it is further ORDERED that Plaintiffs’ objections to the Report (Docket Nos. 251 and 252) are DENIED; and it is finally ORDERED that the Clerk of Court is directed to dismiss Plaintiffs’ Fourth Amended Complaint with prejudice. SO ORDERED. REPORT AND RECOMMENDATION ANDREW J. PECK, United States Magistrate Judge: To the Honorable Victor Marrero, United States District Judge: This Court dismissed plaintiffs’ prior complaint against the City Department of Education and other City and State defendants, but plaintiffs were given leave to file a further amended complaint. See Adams v. N.Y. State Educ. Dep’t, 08 Civ. 5996, 2010 WL 624020 (S.D.N.Y. Feb. 23, 2010) (Peek, M.J.), report & ree. adopted, 705 F.Supp.2d 298 (S.D.N.Y.2010) (Marrero, D.J.), familiarity with which is assumed. In their fourth amended complaint, plaintiffs, who are New York City teachers, challenge their placement in the Temporary Reassignment Centers (“TRC”), which plaintiffs refer to as the “Rubber Rooms”; challenge the administrative hearings and state court review processes for their disciplinary hearings; and assert additional claims for First Amendment retaliation and employment discrimination. Presently before the Court are the City and State defendants’ motions to dismiss plaintiffs’ fourth amended complaint. Plaintiffs Twana Adams, Josephina Cruz, Michael Ebewo, Joann Hart, Julianne Polito, Thomasina Robinson and Brandi Dawn Schemer bring their fourth amended complaint against the New York State Education Department (“NYSED”), former State Commissioner of Education Richard Mills, current State Commissioner of Education David M. Steiner, the Teacher Tenure Hearing Unit (“TTHU”), and TTHU Manager Deborah A. Marriot (collectively, the “State Defendants”), and the City of New York, Mayor Michael Bloom-berg, the New York City Department of Education (“DOE”) and DOE Chancellor Joel Klein (collectively, the “City Defendants”), alleging that defendants violated: (1) plaintiffs’ procedural due process rights; (2) plaintiffs’ equal protection rights by treating them differently than teachers outside New York City; (3) Polito’s, Adams’ and Robinson’s First Amendment rights by retaliating against them after they spoke out about improper DOE conduct; (4) Title VII, the ADEA, the ADA, the Thirteenth Amendment and 42 U.S.C. §§ 1981 and 1983 by discriminating against plaintiffs based on age, disability, race, gender and national origin. (4th Am. Compl.; see pages 26-29 below.) Plaintiffs also allege that defendants retaliated against plaintiffs for filing Teachers4Action v. Bloomberg, 08 Civ. 548, and subjected plaintiffs to a hostile work environment by confining them in the Temporary Reassignment Centers (“TRCs”), also known as the rubber rooms. (4th Am. Compl.; see page 29 below.) Presently before the Court are the City Defendants’ and State Defendants’ motions to dismiss the fourth amended complaint pursuant to Rules 12(b)(1) and 12(b)(6). (Dkt. No. 214: City Defs. Notice of Motion; Dkt. No. 217: State Defs. Notice of Motion; see also Dkt. No. 216: City Defs. Br.; Dkt. No. 218: State Defs. Br.) For the reasons set forth below, defendants’ motions to dismiss (Dkt. Nos. 214 & 217) should be GRANTED, and the fourth amended complaint should be dismissed in its entirety, without further leave to re-plead. In addition, plaintiffs’ counsel shall show cause why they should not be sanctioned pursuant to Rule 11 for their conduct as specified in this Report and Recommendation, on the schedule set out on pages 84-85 below. FACTS The facts alleged in plaintiffs’ fourth amended complaint are assumed to be true for purposes of this motion, and will be set forth herein without use of the preamble “plaintiffs allege.” Allegations in the Fourth Amended Complaint Common to All Plaintiffs Plaintiffs are tenured teachers, who have “been removed from their teaching assignments” without receiving charges and hearings within a reasonable time frame. (Dkt. No. 207: 4th Am. Compl. ¶ 2.) The termination of plaintiffs is “part of defendants’ malicious and discriminatory scheme to purge the New York City Public School system of older, minority and ably disabled teachers.” (4th Am. Compl. ¶ 96.) Each plaintiff has been replaced by a “younger,” “less qualified” teacher. (4th Am. Compl. ¶ 515.) All plaintiffs spent time confined in the Temporary Reassignment Centers (“TRCs”), also known as the rubber rooms. (4th Am. Compl. ¶¶ 2, 623.) Plaintiffs had no duties in the TRCs except “to report and sit during school hours.” (4th Am. Compl. ¶¶ 2, 623.) The “vast majority” of teachers assigned to the TRC were black. (4th Am. Compl. ¶ 550.) The TRCs “almost always” confined double the room’s capacity. (4th Am. Compl. ¶ 622.) On October 5, 2007, “contracted uniformed guards” began monitoring the TRCs’ exits, and security cameras began recording the teachers confined in the TRCs. (4th Am. Compl. ¶¶ 623, 627.) The DOE required teachers confined in the TRCs to sign a contract promising that they would not shut the TRCs’ doors, turn the TRCs’ lights out or use electronic devices while in the TRCs. (4th Am. Compl. ¶ 627.) The DOE deducted time from teachers’ lunch hours and docked teachers’ pay when teachers had to move their cars due to parking regulations. (4th Am. Compl. ¶ 628.) TRC staff also “harassed” teachers when teachers used the lunchroom and the elevators. (4th Am. Compl. ¶ 627.) With respect to the § 3020-a hearings, defendants only employ “23 or fewer” hearing officers. (4th Am. Compl. ¶¶ 89-90.) Defendants “remove” hearing officers who do not “discharge or fine teachers.” (4th Am. Compl. ¶ 93.) When plaintiffs sued the United Federation of Teachers union (“UFT”) in the related case of Teachers4Action v. Bloomberg, the UFT “retaliated” by instructing its lawyers to withdraw from representing plaintiffs at the § 3020-a hearings. (4th Am. Compl. ¶ 611.) “During the sessions when the assigned lawyers were actually withdrawing,” the DOE was considering adjourning plaintiffs’ hearings until the “assigned counsel matter was resolved.” (4th Am. Compl. ¶ 612.) “By the next day,” however, the DOE and arbitrators refused to adjourn plaintiffs’ hearings to allow plaintiffs to find counsel. (4th Am. Compl. ¶¶ 613, 615.) During the fifteen weeks following counsels’ withdrawal, more than a dozen Teachers4Action plaintiffs were “summarily fired after ex parte 3020-A’s.” (4th Am. Compl. ¶ 617.) Allegations in the Fourth Amended Complaint Specific to Each Plaintiff Twana Adams Twana Adams is an African-American woman who is more than forty years old. (Dkt. No. 207: 4th Am. Compl. ¶ 10.) Adams is a tenured DOE classroom teacher at Middle School 44 and has worked for the DOE since 1986. (4th Am. Compl. ¶¶ 11, 26, 401, 434-35.) Until 2006, Adams enjoyed an “unblemished” reputation and received the “highest” performance ratings. (4th Am. Compl. ¶¶ 403-05, 423.) At a 2006 meeting and in 2006 memos to Middle School 44 principal Lisa Ortiz and the District Superintendent, Adams complained that the other “predominantly White” school housed in the same building as her school had better facilities than her “predominantly African-American” school and that her school’s environment degraded students and set them up for failure. (4th Am. Compl. ¶¶ 436-37.) “It was not part of Adams’s job description to advise the principal that [her] Middle School was part of a two-tiered educational system that disadvantages African-American and Hispanic children.” (4th Am. Compl. ¶ 439.) As a result of Adams’ complaints, Ortiz was “openly disrespectful” to Adams. (4th Am. Compl. ¶ 437.) During June 2006, a student knocked Adams to the ground, and Adams took “pain killers” to relieve her pain. (4th Am. Compl. ¶¶ 404, 440). While on the pain killers, Adams “block printed” principal Ortiz’s name on the “Incident Report[’s]” designated line for the principal’s signature and placed the form on Ortiz’s secretary’s desk. (4th Am. Compl. ¶¶ 404, 440.) Principal Ortiz accused Adams of forging Ortiz’s signature even though Ortiz knew that Adams only had block printed Ortiz’s name. (4th Am. Compl. ¶¶ 404-05, 437, 441.) The DOE’s Office of Special Investigations (“OSI”) investigated, and the DOE suspended Adams from her teaching position and reassigned her to sit on a bench outside the principal’s office every day. (4th Am. Compl. ¶¶ 406-07, 442.) During October 2006, the DOE reassigned Adams to a TRC and placed her on the “ Tneligible/Inquiry’ List,” making her ineligible to work as a teacher in the State of New York. (4th Am. Compl. ¶¶ 407, 442.) In March 2007, the DOE “through NYSED” filed “formal charges” against Adams, and Adams requested a hearing, which began in September 2008. (4th Am. Compl. ¶¶ 409-10.) During Adams’ hearing, she overheard DOE Chief Counsel Theresa Europe and Adams’ hearing officer discuss how “they could now ‘go after’ the [TeachersIfAction ] plaintiffs with a vengeance” because the Teachers^Action plaintiffs did not have lawyers. (4th Am. Compl. ¶ 614.) On November 10, 2009, the hearing officer issued a decision finding that Adams had not committed forgery, that her actions were “inadvertent” and that her pain and the medication “mitigat[ed]” against her guilt. (4th Am. Compl. ¶ 411.) Nevertheless, the hearing officer fined Adams $10,000 because Adams had filled out the form on a prior occasion and should have known the “proper method” for filling out the form. (4th Am. Compl. ¶ 411.) During January 2010, the DOE transferred Adams from a TRC to a position teaching at a school for students suspended from other schools due to truancy and misconduct. (4th Am. Compl. ¶ 412.) On November 19, 2007, the EEOC issued Adams a right to sue letter adopting the NYSDHR’s findings. (4th Am. Compl. ¶ 490 & Ex. A: Adams 11/19/07 EEOC Right to Sue Letter.) Adams has not provided this Court with a copy of her NYSDHR complaint or the NYSDHR’s decision and has not stated what claims she raised in her NYSDHR complaint. Josephina Cruz Josephina Cruz is a “dark-skinned” Dominican born woman who is more than forty years old. (Dkt. No. 207: 4th Am. Compl. ¶¶ 12, 584.) Cruz speaks English “eloquently]” and without any “detectable accent.” (4th Am. Compl. ¶ 585.) Cruz was a tenured DOE teacher and taught Spanish for the DOE from 1994 until 2008. (4th Am. Compl. ¶¶ 13, 451.) Cruz “enjoyed an unblemished” career and received the “highest” performance ratings. (4th Am. Compl. ¶ 477.) During the 2005-2006 school year, Cruz worked at Graphic Community Arts High School (“GCAHS”). (4th Am. Compl. ¶¶ 451, 454 & Ex. B: 9/5/08 Cruz EEOC Charge at 2.) During late 2005 or early 2006, GCAHS Assistant Principal Silver-man failed to provide Cruz with the necessary forms and instructions to administer the oral portion of the Spanish Regents Exam. (9/5/08 Cruz EEOC Charge at 2.) When Cruz “was unable to administer [the Spanish Regents Exam] oral component,” GCAHS Principal Resnick accused her of “improper administration of a Regents exam,” “[v]erbal [a]buse,” insubordination, “neglect of duty” and incompetence even though her principal knew these allegations were false. (4th Am. Compl. ¶¶ 454-55; 9/5/08 Cruz EEOC Charge at 2.) Res-nick gave Cruz unsatisfactory ratings in “Observation Reports” and end of the school-year “Performance Review[s]” and “put letters” in Cruz’s personnel file. (4th Am. Compl. ¶ 454 & Ex. B: 9/5/08 Cruz EEOC Charge at 2.) During the three previous years that Cruz taught at GCAHS Cruz had never “faced ... these issues.” (4th Am. Compl. ¶ 454.) The DOE began an OSI investigation, suspended Cruz, assigned her to a TRC and placed her on the “ Tneligibility/Inquiry’ List.” (4th Am. Compl. ¶ 457.) The TRC in which Cruz was placed had poor ventilation because eighty teachers were assigned to the TRC even though the room was intended to hold only twenty-six people. (4th Am. Compl. ¶ 600.) Twenty-five percent of the teachers confined in the TRC suffered from bronchitis and other respiratory diseases. (4th Am. Compl. ¶ 600.) When the DOE assigned Cruz to the TRC, she had “multilevel degenerative disc disease, stenosis, arthropathy and radioculopathy ... but was otherwise in good health.” (4th Am. Compl. ¶ 598.) Cruz developed Chronic Obstructive Pulmonary Disease while she was confined in the TRC and used a respirator during her last year in the TRC. (4th Am. Compl. ¶¶ 600-01.) Because TRC staff did not allow her to leave the respirator in the TRC overnight, Cruz had to carry it to and from the TRC every day. (4th Am. Compl. ¶ 601.) Cruz also developed diabetes and hypertension. (4th Am. Compl. ¶602.) The TRC’s “physical and psychic environment” made Cruz “physically and mentally unable to function.” (4th Am. Compl. ¶¶ 599, 603.) In June 2006, the DOE filed charges against Cruz, and Cruz requested a hearing, which began in May 2008. (4th Am. Compl. ¶¶ 459-60.) Cruz’s hearing counsel “was directed to withdraw” because the UFT was a defendant at the beginning of “this action,” i.e., the prior Teachers4Action case. (4th Am. Compl. ¶ 461.) Cruz requested a stay to “resolve the counsel issue,” which the Hearing Officer “deliberately” denied. (4th Am. Compl. ¶ 464.) Based on the hearing officer’s denial, Cruz requested that the Hearing Officer recuse himself. (4th Am. Compl. ¶ 464.) The Hearing Officer failed to disclose that he was a DOE principal for twenty years even though he had disclosed that fact at other teachers’ § 3020-a hearings. (4th Am. Compl. ¶ 463.) Cruz did not attend “any of the hearings” besides the “pre-hearing” because the UFT refused to provide her with counsel and she could not endure the “pain” of the hearings. (4th Am. Compl. ¶¶ 462, 603.) Cruz’s hearing ended during June 2008, and in December 2008 Cruz received a decision terminating her employment. (4th Am. Compl. ¶¶ 462, 465.) On September 5, 2008, Cruz filed an EEOC charge asserting an Americans with Disabilities Act (“ADA”) claim alleging that: (1) the DOE refused to accommodate her request for a schedule that did not bother her legs; (2) the DOE retaliated against her for “griev[ing]” her schedule; and (3) the TRC’s “health hazards[,] dangerous conditions ... [and] Domino Steelcase plastic, unpadded chairs” caused her to suffer “sacral, lumbar, coccyx and gluteal pain and circulation problems (akin to bedsores).” (9/5/08 Cruz EEOC Charge 1-3.) On November 15, 2008, the EEOC issued a right to sue letter, stating that Cruz’s “charge was not timely filed with EEOC; in other words, [Cruz] waited too long after the date(s) of the alleged discrimination to file [her] charge.” (4th Am. Compl. Ex. B: 11/15/08 Cruz EEOC Right to Sue Letter.) Michael Ebewo Michael Ebewo is a fifty-five year old black man who was born in Nigeria. (Dkt. No. 207: 4th Am. Compl. ¶ 14 & Ex. C: 4/16/10 Ebewo NYSDHR Compl. ¶ 1.) Although Ebewo has a “Nigerian accent,” he is fluent in English, and his speech and diction are clear. (4th Am. Compl. ¶¶ 573-74.) Ebewo is a tenured DOE “Special Education” teacher. (4th Am. Compl. ¶ 15.) From 1990 until 1992 and from 1996 until 2007, Ebewo taught middle school math and science to special education students. (4th Am. Compl. ¶¶ 15, 119, 120.) Prior to the 2004-2005 school year, Ebewo only had “received the highest ratings on his Annual Performance Reviews.” (4th Am. Compl. ¶¶ 121,127.) In 2003, Ebewo began working at Isaac Newton Middle School (“INMS”). (4/16/10 Ebewo NYSDHR Compl. ¶ 2.) During September 2004, Ebewo’s principal started making “false, spurious and unfounded allegations” that Ebewo was incompetent and unable to control his classroom. (4th Am. Compl. ¶ 122.) Between 2005 and October 2007, INMS principal Lisa Nelson gave Ebewo five or six “negative Observation Reports.” (4/16/10 Ebewo NYSDHR Compl. ¶¶ 2-6.) While the “Observation Reports” and “Annual Performance Evaluations” never mentioned Ebewo’s accent or any difficulty in understanding him, Principal Nelson discussed Ebewo’s ‘“deep Nigerian accent’ ” during every “Post Observation Conference.” (4th Am. Compl. ¶¶ 575-76; 4/16/10 Ebewo NYSDHR Compl. ¶ 4.) From 2004 until 2007, Principal Nelson waged a “campaign of harassment” against Ebewo in an effort to “remove him from his tenured teaching position.” (4th Am. Compl. ¶¶ 122-23.) Nelson refused to assist Ebewo in disciplining students, encouraged students to misbehave, rewarded students’ poor behavior and informed students that she intended to fire Ebewo. (4th Am. Compl. ¶ 122.) On one occasion, Nelson refused to assist Ebewo or call the police after a student beat and robbed Ebewo. (4th Am. Compl. ¶ 122.) Principal Nelson prepared and enlisted other DOE employees to prepare “untruthful Observation Reports” after observing Ebewo teach. (4th Am. Compl. ¶¶ 123-24, 126.) Ebewo’s principal used the “untruthful Observation Reports” as the basis for rating Ebewo unsatisfactory at the end of the 2004-2005 and 2006-2007 school years even though this rating did not reflect Ebewo’s teaching or “classroom management abilities.” (4th Am. Compl. ¶ 125.) Between September and October 2007, “as a result of the false, spurious, and unfounded Observation Reports and Annual Performance Reviews,” the DOE reassigned Ebewo from his permanent classroom to a “day-to-day substitute teaching position,” replaced him with a younger, non-Nigerian, female teacher and “commenced an investigation of him.” (4th Am. Compl. ¶¶ 129-30; 4/16/10 Ebewo NYSDHR Compl. ¶¶ 7-8.) During October 2007, the DOE suspended Ebewo, assigned him to a TRC and placed him “perpetually” on the “ ‘Ineligible/Inquiry’ List.” (4th Am. Compl. ¶ 131.) In March 2008, the DOE “through NYSED” filed “formal charges” against Ebewo, and Ebewo requested a hearing on the charges. (4th Am. Compl. ¶ 133.) Ebewo’s hearing began in December 2009. (4th Am. Compl. ¶ 134.) Ebewo still was confined in a TRC when plaintiffs filed the Fourth Amendment Complaint in June 2010. (4th Am. Compl. ¶ 135.) On April 16, 2010, Ebewo filed a NYSDHR complaint, claiming that the DOE violated Title VII and the ADEA by giving him Negative Observation Reports due to his accent, sending him to the TRC based upon the Negative Observation Reports and replacing him with a younger, Caucasian, non-Nigerian teacher. (4th Am. Compl. ¶ 491; 4/16/10 Ebewo NYSDHR Compl. ¶¶ 3-4, 6-7.) The NYSDHR dismissed Ebewo’s complaint for “administrative convenience” so that Ebewo could file this action. (4th Am. Compl. ¶ 491 & Ex. C: 5/27/10 NYSDHR Order.) Ebewo is awaiting an EEOC right to sue letter. (4th Am. Compl. ¶ 491.) Joann Hart Joann Hart is a white woman who is more than forty years old. (Dkt. No. 207: 4th Am. Compl. ¶ 16.) She has been a DOE “Special Education classroom teacher” since March 1977. (4th Am. Compl. ¶ 17.) Hart is a tenured DOE “Special Education classroom teacher,” who has “enjoyed an unblemished teaching career” and has received the “highest” performance ratings. (4th Am. Compl. ¶¶ 17, 179.) Until 2006, Hart served as a “Special Education Individualized Education Plan” teacher, which entailed determining which students needed “academic intervention services.” (4th Am. Compl. ¶ 157.) In 2006, the majority of the “management” team at Hart’s school was Hispanic. (4th Am. Compl. ¶ 541.) In May 2006, the DOE “alleged that Hart committed corporal punishment upon a child in the school,” even though the DOE “knew or should have known” that the allegations were “false” and “unfounded.” (4th Am. Compl. ¶¶ 160-61.) The DOE investigated the allegations, suspended Hart, assigned her to a TRC and placed her on the “ ‘Ineligible/Inquiry’ List.” (4th Am. Compl. ¶¶ 162-63,182.) In November 2006, the DOE “through NYSED” filed “formal charges” against Hart based on the “unfounded” and “false” allegations. (4th Am. Compl. ¶ 165.) Hart requested a hearing, which began in April 2007. (4th Am. Compl. ¶¶ 165-66.) Although Hart “was exonerated of the charges against her,” the Hearing Officer “preclude[d] her from returning to her tenured teaching position” and fined her in order to “ ‘send a message.’ ” (4th Am. Compl. ¶ 167.) Hart remained in a TRC until April 2008, when she was placed on the Absent Teacher Reserve, which required her to seek a new DOE teaching position. (4th Am. Compl. ¶ 168.) On February 26, 2010, Hart filed a NYSDHR complaint, claiming that the DOE discriminated against her due to her age, national origin, race/color and because she opposed discrimination. (4th Am. Compl. ¶ 491 & Ex. D: 5/28/10 NYSDHR Order.) The NYSDHR dismissed her complaint for “administrative convenience” so that she could file this action. (4th Am. Compl. ¶ 491; 5/28/10 NYSDHR Order.) Hart is awaiting an EEOC right to sue letter. (4th Am. Compl. ¶ 491.) Julianne Polito Julianne Polito is a white woman who is more than forty years old. (4th Am. Compl. ¶ 18.) Polito, who has worked for the DOE since 1993, was a tenured DOE “Special Education classroom teacher” and administrator. (4th Am. Compl. ¶¶ 19, 190— 91, 232, 291.) Polito “developed a reputation as an innovative and collaborative administrator” and received the highest performance ratings during her teaching and administrative career. (4th Am. Compl. ¶¶ 194, 221, 280.) During September 2005, Polito “founded and opened” the DOE Technology Arts & Sciences Studios Middle School (“TASS”), becoming its “Interim Acting Principal.” (4th Am. Compl. ¶¶ 195-97.) As “Interim Acting Principal,” Polito was “entitled]” to seek to be permanently appointed as principal. (4th Am. Compl. ¶ 198.) DOE “District l’s” Local Instructional Superintendent Alexis Penzel wanted to remove Polito as TASS Acting Interim Principal so that Polito would be unable to apply for the TASS permanent principal position. (4th Am. Compl. ¶ 206.) Consequently, during January 2006, Penzel knowingly falsely accused Polito of: (1) failing to follow proper procedure in addressing an assault upon a student even though Polito worked with DOE’s Head of Safety to ensure that she followed the proper procedure; (2) being a “ ‘racist’ ” for organizing a meeting about TASS’ gang related activity; (3) “committing ‘corporal punishment’ ” by requiring students to write in their journals about why they hit each other; and (4) “committing other acts of misconduct and impropriety” including violating standard operating procedures and failing to implement the non-mandatory District Two teacher attendance policies. (4th Am. Compl. ¶¶ 199-200, 202.) Penzel knew the allegations were false. (4th Am. Compl. ¶ 203.) Penzel threatened to suspend or terminate TASS employees if they did not help Penzel support the false allegations. (4th Am. Compl. ¶ 200.) Penzel also “enlisted” parents and students to “support” the allegations. (4th Am. Compl. ¶ 201.) Based on Penzel’s accusations, the DOE commenced an investigation, suspended Polito from her Interim Acting Principal position, reassigned Polito to a position in the district offices and placed her on the “ ‘Ineligible/Inquiry’ List.” (4th Am. Compl. ¶¶ 204-05.) In February 2006, Polito was removed from her position as Interim Acting Principal and lost “her established right to seek appointment as TASS’s principal and continued employment as an administrator.” (4th Am. Compl. ¶ 207.) Polito never received a hearing on these charges. (4th Am. Compl. ¶ 209.) Upon concluding its investigation in May 2006, the DOE assigned Polito to a teaching position. (4th Am. Compl. ¶ 210.) In September 2006, Polito “received” an appointment to a sixth grade English teacher position in a new DOE middle school. (4th Am. Compl. ¶ 234.) In October 2006, Polito’s principal falsely accused Polito of corporally punishing a student. (4th Am. Compl. ¶¶ 235-37.) The DOE investigated the allegations, suspended Polito in October 2006, reassigned her to a TRC and placed her on the “ ‘Ineligible/Inquiry’ List.” (4th Am. Compl. ¶ 239.) Polito never received charges or a hearing based on these allegations. (4th Am. Compl. ¶¶ 241-42.) In June 2007, the DOE assigned Polito to a “combined 6th through 7th grade Self Contained Special Education Class.” (4th Am. Compl. ¶ 243.) In October 2007, Polito’s principal falsely accused Polito of corporally punishing a student. (4th Am. Compl. ¶¶ 245-47.) The DOE investigated the allegations, suspended Polito in October 2007, reassigned her to a TRC and placed her on the “ ‘Ineligible/Inquiry’ List.” (4th Am. Compl. ¶¶ 248-49.) The DOE’s investigation “failed to result in charges” or a hearing. (4th Am. Compl. ¶¶ 251-52.) In May 2008, the DOE assigned Polito to teach “troubled 8th grade students” at the Academy of Collaborative Education (“ACE”), even though such position was “outside of her experience.” (4th Am. Compl. ¶¶252, 265.) The DOE also overloaded her schedule. (4th Am. Compl. ¶ 265.) In the fall of 2008, a student physically assaulted Polito, and Polito filed a report with the NYPD. (4th Am. Compl. ¶ 265 & Ex. E: 3/1/10 Polito NYSDHR Compl. at 12.) In October 2008, Polito’s new principal falsely accused Polito of “committ[ing] corporal punishment of a student.” (4th Am. Compl. ¶¶ 253-55; 3/1/10 Polito NYSDHR Compl. at 12.) The DOE investigated the allegations, suspended Polito in October 2008, reassigned her to a TRC and placed her name on the “ ‘Ineligible/Inquiry’ ” List. (4th Am. Compl. ¶ 257.) The DOE did not file charges against Polito, and Polito did not receive a hearing based on the accusation. (4th Am. Compl. ¶ 259.) In June 2009, the DOE “returned” Polito to a position teaching the same students who made the Fall 2008 allegations against her. (4th Am. Compl. ¶¶ 260, 265.) Polito learned that her principal was “falsifying attendance records by marking ‘absent’ students ‘present’ and raising students’ grades to grades that the students had not legitimately earned.” (4th Am. Compl. ¶ 293.) Although it was not “part of [her] job description,” Polito sent OSI a letter about her principals’ misconduct. (4th Am. Compl. ¶¶ 294, 296.) OSI investigated by speaking with ACE’s administrators and the principal but did not contact Polito. (4th Am. Compl. ¶ 297.) In October 2009, Polito’s principal falsely accused Polito of “committing] numerous acts of misconduct and impropriety including corporal punishment of a student.” (4th Am. Compl. ¶¶ 261-63, 298, 300.) The DOE investigated the allegations, suspended Polito, reassigned her to a TRC and placed her on the “Tneligible/Inquiry’ List.” (4th Am. Compl. ¶¶ 266, 301.) Between 2007 and 2010, Polito’s students routinely called her “‘white bitch’ and ‘white whore’ ” and defendants failed to discipline the students for such behavior. (4th Am. Compl. ¶¶ 542, 568.) Defendants also failed to discipline students who brought weapons to Polito’s classroom, “refused to remove disruptive students from [Polito’s] classroom,” demoted Polito, gave “her worse job duties than others with lesser titles!,] • • • forged performance reviews[,] ... denied her access to her employee records and personnel file and falsified personnel records including charging her with unauthorized absences ... and other false and trumped charges of malfeasance.” (4th Am. Compl. ¶¶ 542, 568.) Polito remains in the TRC and has not received charges or a hearing. (4th Am. Compl. ¶¶ 268-69.) On March 1, 2010, Polito filed an NYSDHR complaint, alleging that the DOE and NYSED discriminated against her on the basis of her age, national origin, white color, sex, and sexual orientation by “demot[ing]” her, “suspend[ing]” her, “sexually harassing]” her, “harass[ing] or intimidating]” her, “den[ying her] training!,] ... a promotion or pay raise ... [and] leave time or other benefits,” giving her “different or worse job duties than other workers in [her] same title,” giving her a “disciplinary notice or negative performance evaluation,” creating a “[bjostile work [e]nvironment” and “defam[ing her] character.” (3/1/10 Polito NYSDHR Compl. at 4-5; 4th Am. Compl. Ex. E: 5/14/10 NYSDHR Order.) Specifically, Polito alleged that the DOE “ke[pt] required documents out of [her] file,” “repeatedly charged [her] with unauthorized absence[s]” even though many of her “absences [were] permitted by contracts,” and refused to discipline the students who called her “ ‘white bitch’ and ‘white whore.’ ” (3/1/10 Polito NYSDHR Compl. at 7.) Polito also alleged that her principal refused to remove a disruptive student, prohibited her from attending a hearing and called a “level 3 safety officer” to remove Polito from the “office” while Polito was waiting for a copy of her “HR letter of return.” (3/1/10 Polito NYSDHR Compl. at 7.) On May 14, 2010, the NYSDHR dismissed Polito’s complaint for “administrative convenience” so that she could file this action. (4th Am. Compl. ¶ 491; 5/14/10 NYSDHR Order.) Polito received an EEOC right to sue letter (4th Am. Compl. ¶ 490), but has not provided this Court with a copy of the letter or stated when the EEOC issued the letter. Thomasina Robinson Thomasina Robinson is an African-American woman who is more than forty years old. (Dkt. No. 207: 4th Am. Compl. ¶ 20.) Robinson was a tenured DOE teacher, who worked for the DOE as a classroom teacher, athletic director and interscholastic athletic coach between 1990 and 2009. (4th Am. Compl. ¶¶ 21, 310.) Robinson “enjoyed an unblemished teaching career” and received the “highest” performance ratings. (4th Am. Compl. ¶ 33 1.) In 2006, Robinson was a physical education teacher, athletic director and coach at the High School of Fashion Industries. (4th Am. Compl. ¶ 343 & Ex. F: 2/26/10 Robinson NYSDHR Compl. at 7.) In October 2006, Principal Hilda Nieto, pursuant to DOE policy, instructed Robinson to change the grades of the students in Robinson’s physical education class whom Robinson had failed due to excessive absences even though New York law requires failing students with excessive absences. (4th Am. Compl. ¶¶ 344-45; 2/26/10 Robinson NYSDHR Compl. at 7.) After contacting the UFT “Chapter Chair” for “clarification,” Robinson “expressed her viewpoint to the principal,” which was that the DOE policy violated the law. (4th Am. Compl. ¶ 345.) Robinson’s UFT “Chapter Chair” wrote to NYSED on Robinson’s behalf to “seek clarification” of the DOE’s policy. (4th Am. Compl. ¶ 351.) Robinson “ultimately” changed the students’ grades to avoid insubordination charges. (4th Am. Compl. ¶ 348.) In December 2006, Robinson’s principal informed Robinson that certain students in Robinson’s class alleged that Robinson had “pulled a student’s ponytail,” called a student a ‘“white b-ch’” and acted in an “aggressive and threatening manner” to her students. (4th Am. Compl. ¶¶ 313, 349.) The principal knew the allegations were false because she convinced the students to make the allegations by promising not to discipline them for other misconduct. (4th Am. Compl. ¶¶ 314, 350-51.) The DOE investigated the allegations, suspended Robinson, reassigned her to a TRC and placed her on the “‘Ineligibility/Inquiry’ List.” (4th Am. Compl. ¶¶ 315-16, 352.) The TRC was a “crowded windowless ... room that lacked adequate ventilation and space for all of the employees in the room.” (2/26/10 Robinson NYSDHR Compl. at 7.) TRC supervisors “mocked” Robinson, “called [her] de[ ]grading names” and “controlled” her movements. (Id.) In May 2007, the DOE “through NYSED” filed “formal charges” against Robinson, and Robinson requested a hearing. (4th Am. Compl. ¶ 318.) Robinson’s hearing began in February 2009. (4th Am. Compl. ¶ 319.) “After Robinson and her counsel unsuccessfully attempted to negotiate a settlement of the charges, Robinson decided to retire in October 2009 because of her age, and physical and emotional exhaustion resulting from continued confinement in a TRC.” (4th Am. Compl. ¶ 320.) On February 26, 2010, Robinson filed an NYSDHR complaint alleging that the DOE and NYSED discriminated against her on the basis of her age and race/color (“African American”) by firing or laying her off, “demot[ing]” her, “suspendfing]” her, “harass[ing] or intimidat[ing]” her, “den[ying her] training,” giving her “different or worse job duties than other workers in [her] same title,” creating a “[h]ostile work [e]nvironment,” “defamfing her] character,” and “constructively] terminating]” her by “forcing her] to retire.” (2/26/10 Robinson NYSDHR Compl. at 4-5; 4th Am. Compl. Ex. F: 5/24/10 NYSDHR Order.) Specifically, Robinson alleged that her principal forced her to change the grades of the students whom she had failed due to excessive absences. (2/26/10 Robinson NYSDHR Compl. at 7.) When Robinson refused to change the grades, she “was suspended and removed from [