Pekowsky v. Yonkers Bd. of Educ. & Jane Wermuth

DENISE COTE

Motions denied.

Christopher D. Watkins, Sussman & Watkins, Goshen, NY, for plaintiff. Vincent P. D'Andrea, Thomas, Drohan, Waxman, Petigrow & Mayle LLP, Scarsdale, NY, for defendant Yonkers Board of Education. Michael A. Miranda, Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, NY, for defendant Jane Wermuth.

DENISE COTE, District Judge:

Plaintiff Marc Pekowsky (“Pekowsky”), a music teacher in the Yonkers School District, brought this action against the Yonkers Board of Education (“BOE”) and his former principal, Jane Wermuth (“Wermuth”), alleging that defendants retaliated against him for exercising his First Amendment right to advocate on behalf of the teachers' union and his fellow union members as his school building's elected union representative. Defendants each moved for summary judgment on February 7, 2014. For the reasons set forth below, defendants' motions are denied.

Here, Pekowsky's advocacy on behalf of the teachers' union, and on behalf of other teachers in his capacity as representative of the union, is protected speech. It is undisputed that when Pekowsky met with Wermuth regarding teacher supervision of extracurricular activities, and when he ultimately opposed Wermuth's proposal, he did so as a union representative. Likewise, when Pekowsky confronted Wermuth about counseling teachers not to use Pekowsky, their union representative, and had the union contact Wermuth's superiors about her conduct, he was acting as union representative. And when Pekowsky advocated on behalf of fellow union members in meetings with the administration, he spoke as a union representative, not as a teacher. “Given the inherent institutional conflict of interest between an employer and its employees' union,” Pekowsky acted as a private citizen, not in furtherance of his public duties, “when speaking as a representative of the [teachers'] union.” Ellins v. City of Sierra Madre, 710 F.3d 1049, 1060 (9th Cir.2013); accord Fuerst v. Clarke, 454 F.3d 770, 774 (7th Cir.2006).

Pekowsky has adduced evidence that he was championing teachers' due process rights, insisting on union representation for teachers, and opposing Wermuth's compensation proposal regarding extracurricular supervision. Union representation of teachers is a matter of importance to the functioning of our public education system. It is a feature of contemporary public debates. Consequently, Pekowsky's speech was on a matter of public concern and is protected. Accordingly, Pekowsky's speech was protected. Cf. Clue v. Johnson, 179 F.3d 57, 60 (2d Cir.1999) (“There is no doubt that retaliation against public employees solely for their union activities violates the First Amendment.”).

Defendants argue that Pekowsky's union activity is not protected speech because it was “directed at redressing personal workplace grievances,” citing cases in which employees complained about their own circumstances. These cases are inapposite. Pekowsky's advocacy on behalf of fellow teachers was not aimed at redressing his own grievances, but was undertaken as a representative of the teachers' union.

Defendants also contend that Pekowsky's activity was not a matter of public concern because “[a]ny difficulties between [Wermuth] and [Pekowsky] were the result of their inability to get along and not plaintiff's union advocacy.” The motivation for Wermuth's actions is a question of causation. It does not affect whether Pekowsky's advocacy was on a matter of public concern.

To prove a First Amendment retaliation claim, a plaintiff must establish an adverse employment action that would “deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Wrobel v. Cnty. of Erie, 692 F.3d 22, 31 (2d Cir.2012) (citation omitted). Although “ ‘petty slights, minor annoyances, and simple lack of good manners will not’ give rise to actionable retaliation claims,” Millea v. Metro–N. R. Co., 658 F.3d 154, 165 (2d Cir.2011) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)), the standard is “broad” and adverse actions may “take a wide variety of forms,” Anemone v. Metro. Transp. Auth., 629 F.3d 97, 120 n. 14 (2d Cir.2011) (citation omitted). In addition to “harsh measures” like discharge, pay cuts, and reprimands, “[t]he list of [recognized] adverse actions has included ... some lesser sanctions, such as failure to process a teacher's insurance form, demotion, reassignment to a place that aggravated physical disabilities, and express accusations of lying.” Wrobel, 692 F.3d at 31. “Context matters, as some actions may take on more or less significance depending on the context.” Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 25 (2d Cir.2012) (citation omitted). “[A]lleged acts of retaliation must be evaluated separately and in the aggregate, as even trivial acts may take on greater significance when they are viewed as part of a larger course of conduct.” Id. (citation omitted).

Here, Pekowsky was involuntarily transferred out of YMHS in 2012, a school in which he had taught since 2004. Pekowsky's new assignment required that he split his time between two schools, and to move between the two one day each week. At YMHS, Pekowsky earned additional pay for work with extracurricular activities; no such opportunities existed at his two new schools, and as a consequence Pekowsky's pay is less than it was. A reasonable jury could find that Pekowsky's transfer constituted an adverse employment action. Cf. Kessler v. Westchester Cnty. Dep't of Soc. Servs., 461 F.3d 199, 205, 209–10 (2d Cir.2006) (holding a lateral transfer may be an adverse action even when the transfer did not affect the employee's salary, benefits, or hours).

The same is true of the Wermuth Letter. That letter, which was placed in Pekowsky's personnel file, “direct[s Pekowsky] to desist from ever deploying any manner of corporal punishment.” The Wermuth Letter also states that Pekowsky's “shouting in the hallways ... is insubordinate and rises to the level of conduct unbecoming a teacher” and concludes by advising that a repeat of such behavior may result in Pekowsky's discharge. Such a letter may well “lead [an] employee to believe (correctly or not) that his job is in jeopardy,” and accordingly might dissuade a similarly situated teacher from union advocacy. Millea, 658 F.3d at 165 (holding that a letter of reprimand may constitute an adverse action “even when ... the letter does not directly or immediately result in any loss of wages or benefits, and does not remain in the employment file permanently”).

Defendants point out that Pekowsky filed a grievance with the union about his transfer and subsequently settled it, in return for the DOE's agreement to assign Pekowsky to a single school. Defendants claim that Pekowsky is now “contented with this assignment,” but that does not change the above analysis.

To establish a causal connection between the protected activity and the adverse action, a plaintiff need only show that the activity was “at least a substantial or motivating factor in the adverse employment action.” Garcia, 706 F.3d at 130 (citation omitted). A retaliation claim will lie even where “the measures taken by defendants were otherwise justified,” so long as plaintiff can prove that retaliation was a “motivating factor.” Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir.2014) (citation omitted). Similarly, “the fact that [a defendant] had other legitimate reasons [for the action] is irrelevant.” Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 107 (2d Cir.2006), overruled in unrelated part by Appel v. Spiridon, 531 F.3d 138 (2d Cir.2008).

Here, a reasonable jury could find that Pekowsky's protected union activity was a motivating factor in the decision to transfer Pekowsky and to place the Wermuth Letter in his file. There is evidence, including purported statements from Wermuth herself, that Wermuth's hostility toward Pekowsky was a reaction to his advocacy on behalf of the union. Wermuth played a critical role in both of the adverse actions at issue here.

Wermuth's connection to the Wermuth Letter is obvious. A reasonable jury could find that Wermuth also played a role in Pekowsky's transfer. Constantino has said he understood that Wermuth was asking him to hold an investigation, and he launched Piccirella's investigation with an e-mail to Piccirella that forwarded Wermuth's e-mail to Constantino about the incident. Wermuth's e-mail evidences her animosity to Pekowsky and suggests Wermuth's personal investment in the outcome of the investigation—in particular, her statement that “Pekowsky push[ed] the boy. I have witnesses.” She calls the “whole situation” with Pekowsky “reprehensible” and seems to suggest that Pekowsky be removed from his job, writing that “People who hate children should not work with them,” and that “I need support from the District. I have very little leverage with these tenured personnel.” Notably, Wermuth's e-mail begins with a reference to the fact that Pekowsky was present at the fifth period teachers meeting to represent the teachers' union.

Constantino forwarded this e-mail to Piccirella with the request that he “give this [investigation] priority # 1 Monday morning” and a note that Constantino would be “speak[ing] to Jane [Wermuth] over the weekend for more details related to the incident.” That Sunday, Constantino sent a follow-up e-mail, on which Piccirella was copied, noting that he had spoken with Wermuth and advising that “Mark lost control of himself and caused a major scene in the main office with a student and again in [a teacher]'s classroom with other students.”

While defendants claim Pekowsky was transferred to safeguard students' safety, the DOE offers no persuasive reason why a safety concern arising from an incident with a sixth- or seventh-grade student would be properly addressed by transferring Pekowsky to work in two other schools with sixth- and seventh-graders. Given this evidence, a reasonable jury could find that the Wermuth Letter and Pekowsky's involuntary transfer were motivated, at least in part, by Wermuth's reaction to Pekowsky's union activity.

Defendants argue that Pekowsky has failed to create a material issue of fact as to causation because there is a gap between “the first time [Pekowsky's] union advocacy came into direct conflict with Defendant Wermuth” in September 2010 and the date Pekowsky was involuntary transferred, February 17, 2012. The cases the BOE cites concern a causal inference drawn solely on the basis of timing. Here, there is evidence of a continuing conflict between Pekowsky and Wermuth based on Pekowsky's union activity that reached a head at the end of 2011, and Pekowsky proffers evidence apart from timing that suggests a retaliatory motive.

Finally, Wermuth erroneously contends that “there is no proof that the District Administrators who decided to transfer plaintiff had any knowledge of his union activity.” Yet, Wermuth's January 27 e-mail to Constantino about the Pekowsky “incident” notes in the first paragraph that Pekowsky was present at Wermuth's fifth-period teacher meetings “to represent the YTS”—an apparent reference to the YFT, the teachers' union—and Constantino admitted that Wermuth had complained to him previously about Pekowsky in connection with TIC meetings, which Pekowsky headed as union representative.

Defendants may escape liability, pursuant to Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), if they can prove that they would have taken the same adverse actions in the absence of the protected activity. Anemone, 629 F.3d at 114. But, “if there are significant questions as to whether an employer would have [taken the same action against] an employee but for his/her speech, summary judgment is precluded.” Hale v. Mann, 219 F.3d 61, 70 (2d Cir.2000). On the record here, a reasonable jury could find that Pekowsky would not have been transferred, and the Wermuth Letter would not have been written, had Wermuth not borne animus against Pekowsky because of his union activities.

Qualified immunity “protects public officials performing discretionary functions from personal liability in a civil suit for damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir.2013) (citation omitted). A right is “clearly established” where “the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. (citation omitted). Courts expect “a reasonably competent public official [to] know the law governing his conduct.” Id. (citation omitted). And where, as here, “specific intent is actually an element of the plaintiff's claim as defined by clearly established law, it can never be objectively reasonable for a government official to act with the intent that is prohibited by law.” Reuland v. Hynes, 460 F.3d 409, 419 (2d Cir.2006) (citation omitted).

It was clearly established, well before 2012, that “governmental entities may not inflict an adverse employment decision upon an employee in retaliation for the employee's exercise of his First Amendment rights,” and “no reasonable [government] officer could hold a contrary belief.” Skehan, 465 F.3d at 107 (citation omitted). And it has long been clearly established that union activity like Pekowsky's here is protected by the First Amendment. See, e.g., Clue, 179 F.3d at 60. A reasonable official would have known that it is illegal to retaliate against a union representative for zealously advocating on behalf of the union by involuntarily transferring that representative or by drafting a letter of reprimand containing baseless charges concerning corporal punishment and placing that letter in the representative's personnel file.

In addition to disputing the above, Wermuth contends that she “was not involved in” and “did [not] influence [Constantino's] decision” to transfer Pekowsky. A reasonable jury could find otherwise. Wermuth does not dispute that she is responsible for the charges leveled in the Wermuth Letter, which she authored. Accordingly, Wermuth is not entitled to qualified immunity.

Defendants' February 7 motions for summary judgment are denied.

SO ORDERED. -------- Notes: