Giscombe v.

ANALISA TORRES

Motion denied.

Joshua Sam Beldner, Steven Anthony Morelli, The Law Office of Steven A. Morelli, P.C., Garden City, NY, for Plaintiff. Adam Edward Collyer, Damion Kenneth Lee Stodola, City of new York Law Department, New York, NY, for Defendant.

ANALISA TORRES, District Judge.

In this action, Plaintiff, Delroy Giscombe, alleges claims of retaliation for engaging in protected activities in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and 42 U.S.C. § 1983 against Defendant, the New York City Department of Education (“DOE”). Defendant moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, the motion is DENIED.

Second, Defendant also appears to concede, for the purposes of this motion, that Defendant was aware of Plaintiff's protected activity and that Plaintiff was subjected to adverse employment action. Under Title VII, “[a] plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of his or her employment.” Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir.2006) (citation and internal quotation marks omitted). “An ‘adverse employment action’ for purposes of a retaliation claim is one that ‘a reasonable employee would have found ... materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Senno v. Elmsford Union Free School Dist., 812 F.Supp.2d 454, 472 (S.D.N.Y. July 28, 2011) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67–69, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). Plaintiff was subjected to adverse employment action when he was suspended for six months without pay and when he was subjected to disciplinary charges. Lovejoy–Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223–24 (2d Cir.2001) (suspension without pay constitutes adverse employment action); Monclova v. City of New York, No. 05 Civ. 3164, 2008 WL 822117, at *7 (E.D.N.Y. Mar. 26, 2008) (“disciplinary charges against plaintiffs are an adverse employment action for the purpose of making out a prima facie case of retaliation”).

Defendant disputes that Plaintiff can satisfy the fourth element-a causal connection between the protected activity and the adverse employment action. Courts recognize that most retaliation “is not carried out so openly as to provide direct proof of it.” Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir.2004). Therefore, “the causal connection needed for proof of a retaliation claim can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.” Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir.2001) (citation and internal quotation marks omitted). The Second Circuit “has not established a specific delay between the protected activity and adverse employment action that defeats an inference of causation.” Burkybile v. Bd. of Educ. of Hastings–On–Hudson Union Free School Dist., 411 F.3d 306, 314 (2d Cir.2005). Relatively brief time spans between the protected activity and the adverse employment action have been found on numerous occasions to support an inference of causation. See Nagle v. Marron, 663 F.3d 100, 111 (2d Cir.2011) (citation omitted) (“While we have not ‘drawn a bright line’ defining the maximum time period that can give rise to an inference of causation, six weeks fits comfortably within any line we might draw.”); Lovejoy–Wilson, 263 F.3d at 224 (one month time span between the protected activity and suspension was “short enough to permit a jury to infer a causal connection”).

Plaintiff complained about discrimination to Fanning in December of 2011, filed this lawsuit on January 19, 2012, and filed the EEOC complaint on February 6, 2012. On March 1, 2012, approximately three weeks after filing a charge of discrimination with the EEOC, six weeks after commencing this lawsuit, and less than twelve weeks after complaining about discrimination informally, Plaintiff was “ ‘reassigned from [his] normal duties as teacher,’ ” and was thereafter served with disciplinary charges. Def. 56.1 ¶¶ 30, 36; Def. 56.1 ¶¶ 30, 36.

Although Defendant conceded the second element—that Plaintiff's employer was aware of the protected activity—Defendant then proceeds to argue that Walcott, the “decision-maker,” never saw the complaint in this lawsuit; therefore, Plaintiff cannot establish causation. Def. Mem. 10. “[E]vidence that the specific decision-makers responsible for the adverse action were not aware of a plaintiff's protected activity is ... relevant ‘as some evidence of a lack of a causal connection, countering plaintiff's circumstantial evidence of proximity....’ ” Barney v. Consol. Edison Co. of New York, No. 99 Civ. 823, 2009 WL 6551494, at *13 (E.D.N.Y. Oct. 1, 2009), aff'd sub nom., 391 Fed.Appx. 993 (2d Cir.2010) (citation omitted). “However, even if the decision-makers deny direct knowledge of a plaintiff's protected activity, a plaintiff can still establish a prima facie case where there is circumstantial evidence that the decision-makers were aware of the protected activity.” Id. Here, circumstantial evidence exists that Walcott had knowledge of Plaintiff's lawsuit against Defendant. Walcott testified that Plaintiff's case was initially recommend to him for further disciplinary action by his “team,” which included the Office of General Counsel. Walcott Dep. 23:5–17; 24:12–25, Dec. 13, 2013. Walcott further testified that the General Counsel determines which lawyers handle the various lawsuits brought against the DOE and that Walcott spoke with his General Counsel on a daily basis and his General Counsel notified him of lawsuits brought against the DOE at weekly meetings. Id. at 11:24—13:24; 16:7–17:4. Lastly, Walcott testified that prior to recommending that disciplinary charges be brought against Plaintiff, he spoke to individuals at the Office of General Counsel about Plaintiff specifically. Id. at 31:18–32:16; 59:13–60:4.

Additionally, Fanning, who signed-off on the charges, was aware of the lawsuit, although Fanning did not remember when he was informed of it. Fanning Dep. 34:4–36:7, Dec. 13, 2013. Plaintiff also testified to raising an informal complaint with Fanning that Plaintiff was experiencing discrimination, although Fanning did not remember that conversation taking place. Id. at 38:23–39:6.

Accordingly, because the interval of time between the protected activities and the initiation of the disciplinary hearings fall within the range that can give rise to an inference of causation and because evidence exists that the decision-makers were aware of the protected activities, Plaintiff has established a prima facie case of retaliation.

Turning to the second step in the burden shifting framework, Defendant has articulated a legitimate, non-retaliatory reason for its actions. Defendant has stated that in early 2012, several DOE employees were arrested and charged with inappropriate sexual conduct with students. After being made aware of these incidents, Walcott ordered a review of all cases where DOE employees had been previously found to have committed sexual misconduct by SCI. In February 2012, Walcott's management team conducted such a review, and he ultimately decided to seek the termination of eight employees who had not been appropriately disciplined for their sexual misconduct. According to Defendant, Plaintiff was one of these eight employees.

Accordingly, Defendant has met its burden of articulating a legitimate, non-retaliatory reason for taking adverse employment action against Plaintiff. C. Pretext

Turning to the third step, “after the defendant has articulated a non-retaliatory reason for the employment action, the presumption of retaliation arising from the establishment of the prima facie case drops from the picture.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir.2013). “The plaintiff must then come forward with [evidence that the] non-retaliatory reason is a mere pretext for retaliation.” Id. In El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.2010), the Second Circuit held that “temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII, but without more, such temporal proximity is insufficient to satisfy [a plaintiff's] burden to bring forward some evidence of pretext.” “However, a plaintiff may rely on evidence comprising her prima facie case, including temporal proximity, together with other evidence such as inconsistent employer explanations, to defeat summary judgment at that stage.” Zann Kwan, 737 F.3d at 847. “A plaintiff may show pretext by illuminating such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered reasons that would raise doubt in the factfinder's mind that the employer did not act for those reasons.” Clarke v. Pacifica Found., No. 07 Civ. 4605, 2011 WL 4356085, at *9 (E.D.N.Y. Sept. 16, 2011) (citation and internal quotation marks omitted); see also Williams v. Regus Mgmt. Grp. LLC, 836 F.Supp.2d 159, 174 (S.D.N.Y.2011) (“The factfinder may disbelieve the defendant's explanation either because the facts underlying the explanation are false or because the explanation is weakened by inconsistencies or logical flaws.”).

Plaintiff has carried his burden of providing sufficient evidence that Defendant's legitimate, non-retaliatory reason for taking adverse employment action against him is a mere pretext for retaliation. In combination with the evidence of temporal proximity discussed above, Plaintiff has produced evidence that Defendant may have known that the allegations against Plaintiff were fabricated and statements in the SCI report were false, but chose to ignore the exonerating evidence. One of the six students wrote a letter admitting that she and the other students who had complained about Plaintiff had concocted their stories in order to get Plaintiff fired because they did not like him and thought he wanted to “fail them on purpose.” Bender Decl. Ex. D. The letter was written in the presence of the assistant principal, who testified that she spoke to Fanning about the statement. Id. Ex. E at 19. However, Fanning testified that he never saw the statement and never spoke to anyone about it, and even if he had received the statement, he would not have turned it over to the SCI. Fanning Dep. 62:14–63:21, Dec. 13, 2013. The retroactive disciplinary charges were forwarded for Fanning's review and sign-off in March of 2012. Id. at 56:20–57:25; 80:16–24. Plaintiff's evidence that Fanning signed-off on charges that were based on statements that he may have known were fabricated, together with the temporal proximity between Plaintiff's protected activities (the informal complaint of discrimination, the filing of this lawsuit, and the EEOC complaint) and his subsequent removal from the classroom, create an inference of pretext sufficient to survive summary judgment.

Accordingly, Defendant's motion for summary judgment on Plaintiff's Title VII retaliation claim is DENIED. III. Section 1983 Retaliation

Defendant argues that Plaintiff's § 1983 retaliation claim must be dismissed for three reasons: (1) Plaintiff's “ § 1983 claim cannot be used to replicate Title VII retaliation;” (2) Plaintiff's § 1983 retaliation is governed by the same analysis as his Title VII retaliation (and thus should fail along with his Title VII claim); and (3) Plaintiff's claim must fail because “[p]roof of a single incident of unconstitutional activity is insufficient to demonstrate the existence of a policy.” Def. Mem. 14–15. A. Replication

As to Defendant's first argument, Defendant is correct that “[a] § 1983 action may not ... be brought to vindicate rights conferred only by a statute that contains its own structure for private enforcement, such as Title VII.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir.2004). However, Plaintiff is not attempting to vindicate rights conferred by Title VII, but is instead vindicating rights conferred by the Equal Protection Clause of the Fourteenth Amendment. See Third Am. Compl. ¶ 48. However, courts have questioned whether § 1983 retaliation claims are cognizable under the Equal Protection Clause. In Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir.1996), the Second Circuit stated that “[a]lthough claims of retaliation are commonly brought under the First Amendment ... we know of no court that has recognized a claim under the equal protection clause for retaliation following complaints of racial discrimination.” After Bernheim, district courts routinely dismissed such claims. See, e.g., Kwentoh v. Connecticut Dep't of Children & Families Juvenile Training Sch., 588 F.Supp.2d 292, 305 (D.Conn.2008) (“[A] § 1983 retaliation claim is not actionable under the equal protection clause because allowing such a complaint would allow the complainant to bypass the administrative process that plays a crucial role in the scheme established by Congress in Title VII.”); Worthington v. Cnty. of Suffolk, No. 02 Civ. 723, 2007 WL 2115038, at *2 (E.D.N.Y. July 20, 2007) (“To the extent that [the plaintiff] argues that she may assert a § 1983 claim for retaliation in violation of the Equal Protection Clause of the Fourteenth Amendment, she is incorrect.”); Lange v. Town of Monroe, 213 F.Supp.2d 411, 419 (S.D.N.Y.2002) (alleged retaliation in response to Plaintiff's sexual harassment complaints is not cognizable as an equal protection violation).

Although the Second Circuit declined to “break new constitutional ground” in Bernheim, 79 F.3d at 323, in 2010 it allowed a § 1983 retaliation claim to proceed on an equal protection theory. See Hicks v. Baines, 593 F.3d 159, 171 (2d Cir.2010) (“The premise of this lawsuit is that plaintiffs were treated differently—that is, they suffered retaliation—on the basis of their participation in discrimination investigations and proceedings. That participation obviously constitutes an ‘impermissible’ reason to treat an employee differently.”). “ Hicks did not cite to or discuss Bernheim, and district courts within the Circuit have since noted that the viability of a § 1983 retaliation claim based on an equal protection theory remains unclear.” Siani v. State Univ. of New York at Farmingdale, 7 F.Supp.3d 304, 319, No. 09 Civ. 407, 2014 WL 1260718, at *9 (E.D.N.Y. Mar. 28, 2014).

This discrepancy in the Second Circuit's case law remains unresolved, as the courts that have confronted this issue have dismissed plaintiffs' claims under the doctrine of qualified immunity, see id., or on the merits, see, e.g., Bowen–Hooks v. City of New York, 13 F.Supp.3d 179, 218–20 n. 23, No. Civ. 5947, 2014 WL 1330941, at *24 n. 23 (E.D.N.Y. Mar. 31, 2014); Vaughn v. City of New York, No. 06 Civ. 6547, 2010 WL 2076926, at *10 n. 4 (E.D.N.Y. May 24, 2010). Other courts have not followed Hicks and continued to summarily deny § 1983 retaliation claims under the Equal Protection Clause. See Awad v. City of New York, No. 13 Civ. 5753, 2014 WL 1814114, at *8 (E.D.N.Y. May 7, 2014); McNutt v. Nasca, No. 10 Civ. 1301, 2013 WL 209469, at *24 (N.D.N.Y. Jan. 17, 2013). The Second Circuit recently cited Hicks in a summary order, stating that “[w]e have held that a plaintiff may bring a § 1983 claim alleging a violation of the Fourteenth Amendment,” again without discussing Bernheim or the prior practice of district courts not recognizing such claims. Lewis v. City of Norwalk, 562 Fed.Appx. 25, 29 n. 5 (2d Cir.2014). However, in Lewis, the conflicting precedents were presented to the Second Circuit in the parties' appellate briefs. The defendants-appellees argued that Bernheim should apply, while the plaintiff-appellant argued that Hicks, the more recent opinion, was binding. Brief, ECF No. 47, Dec. 27, 2013; Reply Brief, ECF No. 52, Jan. 10, 2014. Assuming that the Second Circuit consciously chose to follow Hicks over Bernheim, this Court will allow Plaintiff's § 1983 retaliation claim under the Equal Protection Clause to proceed.

Because the standards for evaluating Title VII and § 1983 retaliation claims are identical and because this Court has held the Plaintiff's Title VII claim survives summary judgment, Defendant's second argument is unavailing. See Conklin v. County of Suffolk, 859 F.Supp.2d 415, 424 (E.D.N.Y.2012).

Lastly, Defendant argues that Plaintiff's § 1983 claim must fail because proof of a single incident of unconstitutional activity is insufficient to demonstrate the existence of a municipal policy. To prevail against a municipal entity like Defendant, the evidence must show an official policy or custom caused the plaintiff to be subjected to a denial of a constitutional right. See Augustin v. Enlarged City School Dist. of Newburgh, 616 F.Supp.2d 422, 445 (S.D.N.Y.2009).

The Supreme Court has held that “[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). However, a “policy which ordered or authorized an unconstitutional act can be established by a single decision by proper municipal policymakers.” Pembaur v. City of Cincinnati, 475 U.S. 469, 484 n. 11, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (emphasis added). The Supreme Court in Pembaur “clarified that Tuttle should not be taken to mean that a single act could never be the basis of municipal liability. So long as the single challenged act was the decision of a municipal policymaker, the municipality c[an] be held liable.” Walker v. City of New York, 974 F.2d 293, 296 (2d Cir.1992).

It is well-settled that the Chancellor of the DOE is a “policymaker” for purposes of § 1983. See Moore v. City of New York, No. 08 Civ. 8879, 2010 WL 742981, at *6 (S.D.N.Y. Mar. 2, 2010) (noting that N.Y. Education Law § 2590–g and—h “grant policy making authority over New York City schools to the Chancellor”). Additionally, “[d]istrict courts in the Second Circuit have found that a public school principal acts as a final policymaker to the extent that the ultimate harm that befell the plaintiff was under the principal's control.” Zambrano–Lamhaouhi v. New York City Bd. of Educ., 866 F.Supp.2d 147, 175 (E.D.N.Y.2011).

Walcott, as DOE Chancellor, was a policymaker under § 1983. Fanning, the school's principal, was also a policymaker, as he signed-off on the disciplinary charges. Accordingly, Defendant's motion for summary judgment on Plaintiff's § 1983 retaliation claim is DENIED.

For the reasons stated above, Defendant's motion for summary judgment is DENIED. The joint pre-trial order is due November 14, 2014. The joint pre-trial order and related submissions are to be sent as follows:

In accordance with Paragraph V.B of the Court's Individual Rules and Practices for Civil Cases, the parties shall submit a proposed joint pre-trial order to the Court by PDF attachment to an e-mail by November 14, 2014, at

In accordance with Paragraphs V.C and V.D of the Court's Individual Practices, each party shall file and serve along with the joint pre-trial order all required pre-trial filings, including motions addressing any evidentiary issues or other matters that should be resolved in limine, joint requests to charge, joint proposed verdict forms, and joint proposed voir dire questions.

In accordance with Paragraph V.C(v) of the Court's Individual Practices, the parties shall deliver to the Court by November 14, 2014, one copy of each documentary exhibit sought to be admitted, pre-marked ( i.e., labeled with exhibit stickers) and assembled sequentially in a looseleaf binder or in separate manila folders labeled with the exhibit numbers and placed in a suitable container for ready reference.

In accordance with Paragraph V.F of the Court's Individual Practices, by December 5, 2014, at 12:00 p.m., the parties shall file, if necessary, any opposition to any motion in limine, and any opposition to any legal argument in a pre-trial memorandum.

Counsel for all parties shall appear for a final pre-trial conference on January 22, 2015, at

in Courtroom 15D of the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007.

Trial shall commence at 9:00 a.m. on

In accordance with Paragraph V.H of the Court's Individual Practices in Civil Cases, trial will be conducted from 9:00 a.m. to 2:15 p.m. with a break from 11:15 to 11:45 a.m.

Prior to the final pre-trial conference, counsel for both parties, along with the parties themselves, shall meet in person for at least one hour to discuss settlement of this matter. Additionally, counsel shall submit a joint letter by October 10, 2014, informing the Court whether they would like to be referred to a magistrate judge for settlement discussions.

The Clerk of Court is directed to terminate the motion at ECF No. 43.

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