Hostile Work Environment / Sexual Harassment Claim Dismissed Against NYC Dept. of Education; Notice of Claim Requirement Not Satisfied

In Diaz v. New York City Dept. of Educ., No. 154597/2019, 2020 NY Slip Op 30341(U), 2020 WL 587339 (N.Y. Sup Ct, New York County Feb. 06, 2020), the court, inter alia,  dismissed plaintiffs’ claims of employment discrimination (including hostile work environment sexual harassment).

Among other things, the court held that the Education Law’s Notice of Claim requirement applied to plaintiffs’ claims, and rejected plaintiffs’ argument that they came under the “public interest” exception to that rule:

In general, pursuant to Education Law § 3813 (1), prior to maintaining an action against the DOE, a plaintiff must file a notice of claim within three months of the accrual of the claim. See e.g. Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 547 [1983] (“Satisfaction of these [notice of claim] requirements is a condition precedent to bringing an action against a school district or a board of education …”); see also Munro v Ossining Union Free School Dist., 55 AD3d 697, 698 [2d Dept 2008] (claimant seeking to commence an action against a school district for violations of the Human Rights Law must file a notice of claim within three months of the claim’s accrual).

There are exceptions to the notice of claim requirement when the relief sought is equitable in nature or when the litigant “commences a proceeding to vindicate a public interest.” Matter of Fotopoulos v Board of Fire Commrs. of the Hicksville Fire Dist., 161 AD3d 733, 734 [2d Dept 2018]. Here, plaintiffs argue that the notice of claim requirement should be waived as they initiated litigation to vindicate a public interest. According to plaintiffs, the DOE’s policies and practices failed to protect them from sexual harassment occurring during the course of their employment. Plaintiffs believe that the outcome of the litigation would affect most other DOE employees and that it serves a significant public interest.

However, courts have found that employment discrimination actions alleged against the DOE, like the one asserted by plaintiffs, seek to enforce private rights and require compliance with the notice of claim requirement.

Plaintiffs did not, as they were required to do, allege in their complaint compliance with the notice of claim condition precedents to suit. The court further noted that “[a] complaint which fails to allege compliance with Education Law 3813 is fatally defective”. Plaintiffs did not move pursuant to Education Law § 3813 (2-a) to file a late notice of claim for any claims occurring after their December 6, 2018 notice of claim; therefore, the court dismissed claims that post-date that notice of claim for failure to satisfy a condition precedent to suit.

In sum, the court granted defendants’ motion pursuant to CPLR 3211(a)(5) for an order dismissing their claims for failure to timely file a notice of claim in compliance with Education Law § 3813.