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Herbert v. City of New York

October 8, 2010

DANIELLE HERBERT, PLAINTIFF,
v.
THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION, NEW YORK CITY DEPARTMENT OF EDUCATION, AND SHANIQUIA L. DIXON, DEFENDANTS.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.

MEMORANDUM OPINION AND ORDER

In this action, Plaintiff Danielle Herbert claims that while she was employed as an assistant principal at New York City Public School 149, she was discriminated against on the basis of her gender and her pregnancy, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Executive Law § 290 et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq. ("NYCHRL"). Herbert contends that Defendant Shaniquia Dixon, the principal of Public School 149, terminated her probationary position as an assistant principal because of her pregnancy. The Complaint also alleges that, in demoting Herbert, Dixon was retaliating against her for reporting Dixon's alleged embezzlement, in violation of N.Y. Civil Service Law § 75-b and N.Y. Education Law § 3028-d.

Defendants have moved for summary judgment on all of Herbert's remaining claims, arguing that she was demoted because of poor performance, and contending -- as to the retaliation claim -- that there is no evidence that Dixon was aware that Herbert had reported her alleged misconduct. Defendants' motion for summary judgment (Docket No. 18) will be DENIED as to Herbert's discrimination claims, because there are material issues of fact as to whether Dixon's decision to demote Herbert was motivated in whole or in part by Herbert's pregnancy. Defendants' motion will be GRANTED as to the whistleblower retaliation claim, however, because there is no evidence that Dixon was aware -- prior to demoting Herbert -- that Herbert had reported her alleged misconduct to school district authorities.

BACKGROUND

Herbert began her teaching career in 1999, serving as a special education teacher at New York City Intermediate School 162. (Def. 56.1 Stmt. ¶ 2)*fn1 In 2000, she transferred to Public School 161, where she worked as a general education teacher. (Def. 56.1 Stmt. ¶ 3) During the 2003-04 school year, Defendant Dixon supervised Herbert while serving as assistant principal at P.S. 161. (Def. 56.1 Stmt. ¶ 4)

After Dixon was hired as the principal of P.S. 149 for the 2004-05 school year, she asked Herbert to join her at that school. The two agreed that Herbert would serve as a literacy coach and administrative intern at P.S. 149 while pursuing training in educational administration. (Def. 56.1 Stmt. ¶¶ 6-8) Upon completion of that training, Dixon promised that she would arrange for Herbert to be promoted to assistant principal. (Def. 56.1 Stmt. ¶ 8) Plaintiff obtained her certificate in educational administration and was appointed assistant principal of P.S. 149 for the 2005-06 school year on a "probationary" or non-tenured basis. (Def. 56.1 Stmt. ¶ 9) Plaintiff remained in the assistant principal position for the 2006-07 school year.

I. HERBERT'S 2006-07 JOB PERFORMANCE

In early December 2006, the Special Commissioner of Investigation for the New York City School District ("SCI") received a complaint from the parent of a P.S. 149 student. As to Dixon, the parent complained that students in the June 2006 graduating class had not yet received their yearbooks and class rings. The parent went on to state, however, that "there is a female assistant principal at the school (name unknown) who is having an affair with a janitor named Earl (surname unknown) and that they are 'touchy feely,' especially in front of students. The principal does nothing and merely allows it to happen."*fn2 (Def. 56.1 Stmt. ¶ 14; Leighton Decl., Ex. W) After Dixon learned of this complaint, she scheduled a meeting with Herbert to "discuss the allegations of [her] 'fraternizing with a member of the custodial staff.'" (Def. 56.1 Stmt. ¶ 15; Dixon Decl., Ex. G) In discussing the complaint, Dixon told Herbert that "people . . . were talking about [her] and [Errol] Garvey," a member of the school's custodial staff. (Leighton Decl., Ex. B (Herbert Dep.) at 74) Herbert denied any inappropriate relationship with Garvey. (Id. at 78; Pltf. 56.1 Counter-Stmt. ¶ 15)

Later during the 2006-07 school year, Dixon issued two disciplinary letters to Herbert. In a January 30, 2007 letter, Dixon reprimanded Herbert for her failure to ensure that the teachers she supervised were properly maintaining student work portfolios in math and writing.*fn3 (Def. 56.1 Stmt. ¶ 12; Dixon Decl., Ex. E) In an April 12, 2007 letter, Dixon reprimanded Herbert as a result of a complaint from the parent of a special education student. The parent complained that Herbert had scolded the student for not wearing his uniform, telling him that "the Principal did him a favor by letting the child into the school." (Def. 56.1 Stmt. ¶ 20; Dixon Decl., Ex. H)*fn4 Dixon's letter acknowledges that Herbert's "concerns about [the student's] lack of uniform and his refusal to follow school rules are valid," and she suggests that Herbert speak to the middle school dean "to ensure that [the student] receives the appropriate disciplinary action regarding his misconduct." (Dixon Decl., Ex. H) Dixon further states, however, that Herbert's "did him a favor" remark was "unprofessional and inappropriate and . . . showed poor judgment." (Id.) Dixon notes that all students "are entitled to education under the law" and that, "[a]s educators[,] we cannot deprive them of that right." Dixon also emphasizes that Herbert is expected to treat all students with respect, and to impose discipline in such a manner that "this type of incident will not occur in the future." Dixon also warns that "[a]nother occurrence of this nature may result in an unsatisfactory rating for the 2006-2007 school year." (Id.) Herbert received no further disciplinary letters that year, however, and Dixon rated her "satisfactory" for the 2006-07 school year. (Def. 56.1 Stmt. ¶ 23; Leighton Decl., Ex. C (Dixon Dep.) at 213)

II. HERBERT'S PREGNANCY

Herbert became pregnant in September 2007, early in the 2007-08 school year, and informed Dixon of her condition in October 2007. (Def. 56.1 Stmt. ¶ 59) In November 2007, Dixon questioned Herbert about the identity of the father. (Def. 56.1 Stmt. ¶ 62) Herbert told Dixon that the father was a former junior high school classmate, with whom she had "had a summer fling." (Leighton Decl., Ex. B (Herbert Dep.) at 79, 80)

During the late fall and winter of 2007, Dixon received a series of letters from parents -- including the vice president, secretary, and former president of the Parent-Teacher Association -- expressing concern about Herbert's pregnancy, which they assumed was the product of an affair with Garvey. (Def. 56.1 Stmt. ¶ 28-30; Dixon Decl., Exs. Q, R, S) The letters all stated that Herbert was not setting an appropriate example for the children at the school. (Dixon Decl., Exs. Q, R, S) For example, in a November 8, 2007 letter, the PTA secretary wrote: "The reason why I am writing this letter now is because Ms. Herbert is now with child and showing. . . . My concern with that is, 'What kind of example is she setting to the babies of our school?' Are we not supposed to lead by example? How do we teach our children morals and values [if] what we do is immoral?" (Dixon Decl., Ex. R) On November 30, 2007, the former PTA president wrote: "Ms. Herbert is now pregnant. Students and parents alike are now talking about Errol being the child's father. Although no one knows for sure, that is the logical assumption since everyone knew they were an item. My question to you now is , 'What type of example are we setting for our students and what is going to be done about it?'" (Dixon Decl., Ex. S) (emphasis in original) The PTA vice president wrote that "many parents and students are talking about her pregnancy and our school's Fireman (Errol) being the child's father. . . . My concern is she is the leader of the primary academy. What examples do we set for our children?" (Dixon Decl., Ex. Q)

At her deposition, Dixon testified that she was concerned about the effects of Herbert's pregnancy on the school environment, and noted that after Plaintiff became pregnant, allegedly with Garvey's child, "people were so concerned, over-consumed with this that we could barely get work done. There was just so much gossiping, so much whispering in corners . . . . it was affecting Ms. Herbert, she was coming in disgusted and it was just a bad situation." (Pltf. 56.1 Counter-Stmt. ¶ 102)

On November 29, 2007, Dixon reported the parents' concerns about Herbert and Errol Garvey to SCI. (Leighton Decl., Ex. C (Dixon Dep.) at 194-97). Dixon also forwarded the parents' letters to SCI. (Def. 56.1 Stmt. ¶ 31) In a January 9, 2008 letter to SCI, Dixon addressed the allegations against Herbert and the effect of her conduct on the school:

As a result of my investigation of the above complaint . . . I cannot fully substantiate the allegation made by parent Audrey Santos. . . .

Ms. Santos stated that during her conversation with Ms. Herbert, Ms. Herbert did acknowledge that Mr. Garvey is her child's father and yes, they are both married. However, I have not seen any unprofessional behavior or misconduct between . . . Ms. Herbert and Mr. Garvey. . . .

I can however attest to the fact that this entire matter has been detrimental to the morale of the school. As a result[,] I requested [that] Mr. Garvey be transferred, and that has occurred. Ms. Herbert still remains in the building. (Dixon Decl., Ex. O)

In addition to her interactions with SCI, Dixon took several steps at P.S. 149 to address issues she believed had been created by Herbert's pregnancy. Dixon contacted Scott Spring, who supervised Errol Garvey, to discuss the alleged affair between Herbert and Garvey, and Herbert's pregnancy. Dixon demanded that Spring transfer Garvey to another school. Spring refused. (Deutsch Decl., Ex. 12 (Spring Dep.) at 11, 20)

Dixon then scheduled a meeting with Spring and his supervisor, Bob Dreyer. Dixon opened that meeting by saying: "If you gentlemen are wondering what this matter is in reference to . . . Errol Garvey has impregnated or gotten my assistant principal pregnant, and now the entire school is talking about it." (Pltf. 56.1 Counter-Stmt. ¶ 112-13; Deutsch Decl., Ex. 12 (Spring Dep.) at 19) Dixon demanded that Garvey be transferred to another school:

Q: Did Principal [Dixon] ask for Mr. Garvey to be transferred at that time?

A: Yes, she, did, for the good of the building because of all the rumors going around in the school.

Q: By rumors, you mean Ms. Herbert being pregnant?

A: By the fireman, Errol, yes. (Deutsch Decl., Ex. 12 (Spring Dep.) at 19; see also Deutsch Decl., Ex. 9 (Dixon Dep.) at 198-99) At her deposition, Dixon explained that she demanded that Garvey be transferred because there was too much . . . water cooler talk that was interrupting the overall tone of the school. People were so focused on these two, and I say these two, I mean Ms. Herbert and Mr. Garvey, that people weren't functioning. . . . (Id., Ex. 9 (Dixon Dep.) at 198-99) Ultimately, Garvey agreed to a voluntary transfer, and left P.S. 149 on December 11, 2007. (Id. Ex. 12 (Spring Dep.) at 19, 20, 25)

III. HERBERT'S ANONYMOUS REPORT TO SCI

At the beginning of December 2007, while standing with Dixon outside the office of P.S. 149's business manager, Katina Williams, Herbert overheard a "40 second" telephone conversation in which Williams was "talking about a check that [Dixon] had made out to cash for a thousand dollars [for school related expenses], and she in turn had the check cashed and used the thousand dollars for a down-payment on one of her cars." (Deutsch Decl., Ex. 8 (Herbert Dep.) at 93-96; see also Def. 56.1 Stmt. ¶ 64) At her deposition, Herbert conceded that she could not "say for certain" that Dixon overheard the conversation. Moreover, Herbert and Dixon never discussed what Herbert overheard. (Deutsch Decl., Ex. 8 (Herbert Dep.) at 95-96; Def. 56.1 Stmt. ¶ 65) Herbert subsequently discussed Dixon's alleged misconduct with Williams, however, who told Herbert that Dixon had misappropriated school and student funds on several occasions. (Pltf. 56.1 Counter-Stmt. ¶ 91)

On December 12, 2007, Herbert sent a letter to SCI alleging that Dixon "lack[ed] integrity, was "dishonest," and had stolen school funds. (Def. 56.1 Stmt. ¶ 66; Leighton Decl., Ex. B (Herbert Dep.) at 99-100) Herbert signed the letter "Anonymous," and took other steps to conceal her identity. For example, she made the letter "sound like it was from a teacher and not from [her]," and referred to herself in the third person as "the one that [Dixon] brought with her from 149." (Def. 56.1 Stmt. ¶ 67; Leighton Decl., Ex. B (Herbert Dep.) at 99, 102)

Dixon testified that she first became aware of this complaint and the identity of the complainant in April 2008, when she met with SCI investigators. (Def. 56.1 Stmt. ΒΆ 69; (Leighton Decl., Ex. C ...


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