Sandiford v City of New York Dept. of Educ.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 24, 2012
Tom, J.P., Saxe, Catterson, Moskowitz, Manzanet-Daniels, JJ.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered on or about February 18, 2010, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment insofar as it sought dismissal of plaintiff's retaliation claim under the New York City and the New York State Human Rights Law and denied the motion insofar as it sought dismissal of her discrimination claims, modified, on the law, to deny the motion as to plaintiff's retaliation claim, and otherwise affirmed, without costs.
In this action alleging discrimination based on sexual orientation, plaintiff is a lesbian and has been employed as a school aide by defendant Department of Education (DOE) since May 2001. During the 2004/2005 school year, plaintiff was assigned to P.S. 181, in Brooklyn, where defendant Coleman was principal. According to plaintiff, Coleman repeatedly made derogatory remarks regarding gays and lesbians in front of plaintiff, the students and the teachers. Plaintiff stated that Coleman had commented that "two men should not be behind closed doors," "whatever two men is [sic] doing behind closed door[s], God would judge them for himself." Plaintiff also stated that Coleman had said that "his church can change people like us for the better" and, while acting out an obscene walk, "this is how faggots walk." On another occasion, Coleman allegedly admonished students for using the word "lesbian." Plaintiff claimed that she complained about certain staff members who had teased her, taunted her with notes in her locker and made lewd comments to her.
In March 2005, plaintiff was advised that she was being suspended without pay pending an investigation by defendant DOE's Office of Special Investigation (OSI) regarding an allegation of sexual misconduct pertaining to an incident which occurred on or about February 11, 2005 involving two co-workers at P.S. 181, a college student, age 18, and a DOE student, age 16. Plaintiff allegedly asked the DOE student to "hook her up" with the college student. When the DOE student refused and advised plaintiff to "leave it alone," plaintiff allegedly persisted and contacted the college student directly. Her alleged attempts to establish a personal relationship were purportedly rejected. Plaintiff denies the incident occurred.
Thereafter, plaintiff allegedly complained about Coleman's conduct to various DOE offices to no avail. In late June 2005, plaintiff again met with Coleman and was allegedly "berated, belittled and reprimanded" for complaining about his treatment of her. Plaintiff was then advised that, an investigation by OSI had substantiated the allegations of misconduct and recommended termination of her employment, and that Coleman had decided to terminate plaintiff's employment.
Plaintiff filed a grievance with the DOE challenging her termination and was reinstated with back pay, less two weeks, and a letter placed in her file warning her not to engage in inappropriate conduct or conversation with any DOE student. Thereafter, plaintiff commenced the instant action alleging claims for discrimination and retaliation under the New York State and New York City Human Rights Laws.
Defendants' argument that the claims are precluded by the doctrine of collateral estoppel based on implicit findings by the DOE is improperly raised for the first time on appeal (see Gavin v Catron, 35 AD3d 354 ). In any event, the argument is without merit. The record shows that plaintiff did not have a full and fair opportunity to litigate her claims of discrimination in the grievance process. Indeed, her testimony suggests that she had little involvement in the proceedings. Thus, the record does not allow us to conclude that the facts asserted were "adequately tested, and that the issue was fully aired" (Jeffreys v Griffin, 1 NY3d 34, 40-41  [internal quotation marks omitted]). Here, the record merely reflects plaintiff's request for a review by the Grievance Panel, and the panel's subsequent decision. Moreover, plaintiff did not have an opportunity to appeal the grievance decision, as it was the Union's decision whether to proceed further (cf. Hickey v Hempstead Union Free School Dist., 36 AD3d 760 ).
Plaintiff's testimony regarding Coleman's repeated derogatory remarks regarding gays and lesbians was sufficient to raise a question of fact as to plaintiff's claim alleging unlawful discriminatory practices under the New York City Human Rights Law (Administrative Code of City of NY § 8-101; § 8-107 [a] and [b]), the uniquely broad and remedial provisions of which are liberally construed to provide expansive protections not afforded by their state and federal counterparts (Williams v New York City Hous. Auth., 61 AD3d 62, 66 , lv denied 13 NY3d 702 ; Administrative Code § 8-130). This Court has made clear that where a plaintiff "responds with some evidence that at least one of the reasons proffered by defendant is false, misleading or incomplete, a host of determinations properly made only by a jury come into play, and thus such evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied" (Bennett v Health Mgmt. Sys., Inc., 92 AD3d 29  [emphasis added]).
Moreover, in light of plaintiff's testimony regarding Coleman's comments and conduct, the record did not conclusively establish that defendants would have made the same decision to terminate plaintiff's employment had they not considered plaintiff's sexual orientation. Thus, there being triable issues of fact, summary judgment was precluded insofar as the complaint alleged unlawful discrimination under the New York State Human Rights Law (Executive Law § 296[a]; see McKennon v Nashville Banner Publ. Co., 513 US 352, 360 ; Chertkova v Connecticut Gen. Life Ins. Co., 92 F3d 81, 91 [2d Cir 1996]).
Regarding plaintiff's claim of retaliation, to the extent the claim is based upon the New York City Human Rights Law (Administrative Code § 8-107), summary judgment is precluded by triable issues of fact as to whether, within the context of this matter and the workplace realities as demonstrated by the record, plaintiff's termination from employment would be reasonably likely to deter other persons in defendants' employ from engaging in protected activity (see Williams, 61 AD3d at 70-71).
To the extent the claim is based upon the New York State Human Rights Law (Executive Law § 296[e]), summary judgment is precluded by triable issues of fact as to whether, in response to plaintiff's prima facie showing that her termination was the direct result of retaliatory animus, defendants offered a pretextual explanation (see Sukram v Anjost Corp., 72 AD3d 491 ; Pace v Ogden Servs. Corp., 257 AD2d 101, 104-05 ; Gordon v New York City Bd. of Educ., 232 F3d 111, 117 [2d Cir 2000]).
We have considered the parties' remaining arguments and find them unavailing. All concur except Saxe and Catterson, JJ. who dissent in a memorandum by Catterson, ...