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Eugenia Spencer v. the City of New York (Including the Board of Education of the City of

July 12, 2012


The opinion of the court was delivered by: Wood, U.S.D.J.:

Opinion and Order

After a five-day trial, a jury found James Philemy and Ilyssa Mandell (collectively "Defendants") liable for violating Eugenia Spencer's First Amendment rights by giving her unsatisfactory employment ratings in retaliation for speech that Spencer made as a citizen on matters of public concern. Pursuant to Federal Rule of Civil Procedure 50 ("Rule 50"), Defendants move for judgment as a matter of law, on the grounds that they are entitled to qualified immunity. Pursuant to Federal Rule of Civil Procedure 59(a) ("Rule 59(a)"), Spencer moves for a new trial on damages, on the grounds that the damages verdict was against the weight of the evidence. For the reasons stated below, both Defendants' motion for judgment as a matter of law and Spencer's motion for a new trial are DENIED. Spencer's requests for equitable relief and an award of prejudgment interest are GRANTED.


I.Factual Background

In the summer of 2003, the regional DOE superintendent appointed Philemy to be Interim Acting Principal of PS/IS 208 ("the School"), a new school in Queens County, New York. Philemy chose Mandell to be one of the School's two Interim Acting Assistant Principals. Beginning in October of 2003, Spencer worked as a substitute teacher at the School. On November 18, 2003, Philemy nominated Spencer to become a "permanent substitute" teacher of seventh-grade math.

In December of 2003, one of Spencer's male students (the "Student") began to sexually harass her. The Student's behavior towards his classmates and towards staff led Spencer to worry about her own safety, as well as the safety of other students and teachers. Spencer reported the foregoing concerns to her supervisors and to her union. Spencer also filed a complaint with the New York Police Department and ultimately turned to the New York City Law Department for assistance. The Student was arrested at school and ultimately found guilty of sexual harassment and sexual abuse.

Until these events commenced, Spencer had always received "satisfactory" performance evaluations from her supervisors in the DOE. Beginning the day after Defendants learned that Spencer had filed her first police report, Defendants began a series of informal and formal observations that culminated in an "unsatisfactory" performance rating for the year.

II.Procedural History

On April 12, 2006, Spencer filed a complaint against Philemy, Mandell, the City of New York, and the Department of Education ("DOE") alleging violations of 42 U.S.C. § 1983, as well as breach of contract, negligence, and intentional infliction of emotional distress. (Dkt. No. 1.) On May 30, 2007, this Court granted Defendants' motion to dismiss the breach of contract claim, the negligence and intentional infliction of emotional distress claims against the DOE, and all claims against the City of New York. Spencer v. City of New York, No. 06 Civ. 2852, 2007 WL 1573871 (S.D.N.Y. May 30, 2007).

At the summary judgment stage, the Court dismissed the remaining negligence and intentional infliction of emotional distress claims but denied Defendants' motion to dismiss the First Amendment retaliation claim brought against Philemy, Mandell, and the DOE. (Dkt. No. 67.) The Court found that Spencer's communications with the Defendants and with her union did not constitute speech protected by the First Amendment because she was not speaking as a citizen but instead as an employee, in furtherance of her professional responsibilities. Id. at 8-11. The Court found that Spencer's communications to the police and to the New York City Law Department did merit First Amendment protection because that speech was made as citizen and because it addressed matters of public concern. Id. at 11-16. Whether there was a causal connection between Spencer's speech and the Defendants' adverse employment decisions was a factual issue that had to be decided at trial. Id. at 16-18. The Court also found that there were factual issues as to the Defendants' retaliatory motive or intent and that these factual questions had to be resolved by a jury before the Court could determine whether the Defendants were entitled to qualified immunity. Id. at 21-22.

III.Trial and Jury Verdict

Trial began on July 18, 2011. Spencer, Philemy, and Mandell all testified, as did Crystal Bonds, a teacher who worked as an instructional coach for math teachers in PS/IS 208.

Spencer testified that, on December 1, 2003, the Student began to sexually harass her. Spencer's uncontradicted testimony established that this Student on different occasions called her his "wife," snuck up behind her and rubbed his genitals against her, and fell onto her and groped her breasts. (Trial Tr. at 426-34 July 20, 2011.) Spencer reported the Student's sexual harassment and abuse to Mandell and filled out three incident report forms describing the harassment. (Id. at 366-67; Pl.'s Ex. 52, 53, 54.)

Spencer also testified that the Student repeatedly disrupted class and threw objects at other students. (Trial Tr. at 457-60 July 20, 2011.) A number of other teachers brought to the attention of the Defendants the behavioral problems of this particular Student, which they felt disrupted the learning environment at the school. (Id. at 362-63.) Teachers also organized a meeting and shared with Philemy their concerns about safety issues relating to this Student. (Id. at 457:1-3.)

On December 22, 2003, Spencer discovered that her wallet was missing and suspected that the Student had stolen it. The Student eventually led Spencer to a location on school property where the wallet had been hidden. Spencer filed a police report and also filled out one of the School's incident report forms. (Pl.'s Ex. 55, 57.) The Student was suspended, but when he returned to her class, Spencer testified that "he became more belligerent than ever, getting up out of his seat, cursing out loud, throwing objects at other students." (Trial Tr. 456:8-10 July 20, 2011.)

Spencer called the police again, she said, "because his behavior had become more intimidating and I was fearful." (Id. 460:15-16.) Spencer testified that she "was concerned about the students' safety as well as the teachers', and his behavior issues had now become the focus of the class and it was interrupting the learning process." (Id. at 460:19-22.)

As a result of Spencer's call to the police, the Student was subsequently arrested at the school. After the Student's arrest, the Defendants permitted the Student to return to Spencer's classroom where the Student continued his disruptive and harassing behavior. Spencer continued to seek support from the Defendants by filling out student removal forms describing the Student's behavior. (Pl.'s Ex. 61, 62.)

Spencer then turned to an Assistant Corporation Counsel in the New York City Law Department for help. The Law Department brought an action against the Student in New York State Family Court. On April 8, 2004, an order of protection was issued in favor of Spencer and against the Student. (Pl.'s Ex. 41.) The Student was subsequently removed from Spencer's class. After a fact-finding hearing, the Family Court found the Student guilty of one count of harassment in the first degree and three counts of sexual abuse in the third degree. (Pl.'s Ex. 48.)

Spencer had taught in DOE schools from 2000 to 2003 and had received "satisfactory" performance evaluations from all of her supervisors. (Trial Tr. at 399-405 July 20, 2011.) The day after Philemy first learned that Spencer had filed a police report, Philemy conducted an informal observation of Spencer's class and rated Spencer's employment performance "unsatisfactory." (Trial Tr. 84:18-25 July 18, 2011.) On April 19, 2004 Philemy conducted a formal observation of Spencer's class. He did not write up the report of that April observation until June 30, 2004, at which point he concluded that it too was "unsatisfactory." (Id. at 110:1-8.) OnJune 17, 2004, Philemy gave Spencer an overall evaluation of "unsatisfactory for the 2003-2004 school year. (Pl.'s Ex. 23.) Philemy did not attach any supporting documents to substantiate the rating. (Trial Tr. 142:17-143:10 July 19, 2011.)

Spencer also testified to a motive for the retaliation that she alleged, specifically concern by Philemy and Mandell that Spencer's complaints were giving the school, and the Defendants' management of it, a bad reputation. Spencer testified that at one point when another teacher called 911 with regard to a student, Mandell was upset because "[s]he did not want it to be known that the school is a crime school, that events like this was happening, and that Mr. Philemy would not be happy to hear that." (Trial Tr. 420:5-7 July 20, 2011.) With regard to another incident in which school police were called to respond to the Student's disruption, Spencer testified that Mandell reiterated "that Mr. Philemy did not want the school to be known as a crime school." (Id. at 475:19-20.)

Defendants' testimony primarily sought to establish reasons for which it could have been reasonable to have given Spencer an unsatisfactory rating. (e.g., Trial Tr. at 202-07 July 19, 2011.) Philemy testified that he believed Spencer displayed a lack of professionalism in her interactions with parents and supervisors and also that he saw Spencer's responses to the theft of her wallet and to the actions of the Student as inappropriate for the school context. (Id. at 215.) Philemy testified that if all of Spencer's interactions with the Student were removed and her contact with the police and the Law Department were ignored, "I think she still would have gotten a U" because "she wasn't in compliance [with DOE expectations] and she wasn't improving." (Id. 216:23-24; 217:3-4.) Mandell testified regarding her efforts to improve Spencer's teaching and also her impression of Spencer's inappropriate interactions with Philemy and with parents. (Trial Tr. at 371-75 July 20, 2011.)

After Spencer rested her case on July 21, 2012, Defendants moved for a judgment as a matter of law pursuant to Rule 50, and the Court reserved judgment. The jury found that Spencer's protected speech was a substantial or motivating factor in Philemy and Mandell's "unsatisfactory" rating of Spencer for the 2003-04 school year. The jury also found that the Defendants would not have given Spencer an "unsatisfactory" rating in the absence of Spencer's protected speech. Finding that the "unsatisfactory" rating for the 2003-04 school year interfered with Spencer's ability to obtain full-time employment with the DOE, the jury awarded Spencer $25,000 in damages. The jury did not find that the "unsatisfactory" rating prevented plaintiff from obtaining other employment and did not award punitive damages or damages for emotional pain or distress.

IV.The Current Motions

Defendants now move for a judgment as a matter of law, on the grounds that Philemy and Mandell are entitled to qualified immunity. Defendants argue that it was not clearly established that Spencer's actions constituted protected speech and that it was objectively reasonable for Mandell and Philemy to believe that their actions did not violate Spencer's rights. Spencer moves for a new trial ...

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