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Bray v. New York City Department of Education

United States District Court, Second Circuit

July 10, 2013

FELICIA BRAY, Plaintiff,

Elliot B. Pasik, Law Office of Gerald P. Gross, Cedarhurst, NY, for the Plaintiff.

Daniel Chui, Assistant Corporation Counsel of the City of New York, New York, NY, for the Defendant.


DENISE COTE, District Judge.

Felicia Bray ("Bray") filed this action on November 4, 2011, alleging that the City of New York Department of Education ("DOE") subjected her to a hostile work environment and retaliated against her for complaining about that discriminatory conduct in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), New York State Human Rights Law ("NYSHRL"), N.Y. Exec. § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. After a ten year career as a school aide and teacher, Bray worked as an Assistant Principal for one and a half years. In this action she asserts that her complaints against the school principal for his sexually harassing conduct led to the loss of her appointment as an Assistant Principal and required her to return to working as a teacher. Following the completion of discovery, the defendant moved for summary judgment. For the reasons that follow, the defendant's motion for summary judgment is granted in part.


Unless otherwise noted, the following facts are undisputed, or taken in the light most favorable to the plaintiff. Bray was hired by the DOE in September 1998. Ten years later, in September 2008, she began work at the Manhattan Center for Science and Math High School (the "School") as an interim-acting Assistant Principal ("AP") of Operations. Her duties included managing school funds and budgets, and supervising teachers and the secretarial staff. Under the DOE's policies, Bray's position could be terminated at any time.

During her time at the School, Bray's supervisor was Principal Jose David Jimenez ("Jimenez"). Bray asserts that over the course of the year that followed, Jimenez sexually assaulted and harassed her in the six incidents described below.

The first instance of sexual harassment occurred on October 15. Bray and Jimenez were at the School after normal school hours to attend a School Leadership Team Meeting. After the meeting, Jimenez and Bray walked to a restaurant near the School. At the restaurant, Jimenez touched Bray's hand and told her he really liked her. Bray responded that she felt uncomfortable and wanted to leave. When they returned to the School's parking lot, Jimenez asked Bray to reenter the School. Bray followed Jimenez to his office, where Jimenez grabbed her breasts from behind for two to five minutes. Bray screamed so loudly that a School custodian came to the office door. She hid inside Jimenez's bathroom while Jimenez spoke to the custodian.

Less than a week later, on October 20, Bray participated in a process known as "C-30." Jimenez and a review panel interviewed her for the position of probationary AP. Jimenez told Bray of her appointment as a probationary AP the next day. As a probationary AP, Bray received union representation and the protection of additional DOE protocols before she could be fired.

A second incident occurred on November 26. Bray was driving out of the School's parking lot when Jimenez drove up beside her, began honking his horn, and yelling for her to follow him "right now." Bray ignored him and drove away.

The next incident took place in the spring of 2009. Bray was in her office with a colleague Dan Albetta ("Albetta") when she received a call from Jimenez requesting that she meet him in the health office. When Bray and Albetta arrived at the health office, Jimenez asked Bray to open a desk drawer. The drawer contained a dildo, and Jimenez asked Bray if the dildo was supposed to be in the office and began laughing. Bray responded that the item was frequently used in sex education classes.

Next, Jimenez invited Bray and Assistant Principal Arleen Milton ("Milton") to attend a formal networking event in Queens on May 8. Jimenez had asked if he could accompany Bray to her house so that they could drive to the event together and Bray had refused. At the close of the event, as Bray was entering an elevator, a belligerent Jimenez began screaming at her and demanding that she go home with him.

Around the same time, Jimenez also asked Bray to attend the Senior Prom with him in May. When she declined, Jimenez reassigned Bray from AP of Operations to AP of Physical Education, a position for which she was purportedly not qualified. When the plaintiff declined to attend the Senior Prom with Jimenez, Milton attended the Prom with Jimenez instead. The plaintiff claims that following the Prom, Milton, with whom she had previously had a positive relationship, began to harass and or retaliate against her by, for instance, agreeing to take over Bray's AP of Operations position when Bray was reassigned to be AP of Physical Education.

On June 18, the Coordinator of Student Activities, Margaret Warner ("Warner"), told Jimenez that Bray had delayed depositing School funds in a bank. Warner told Jimenez that there was $37, 391 (the "Cash") in the School safe. The Cash had been collected as early as May 9 by the School's senior class to pay for activities related to graduation and for the class yearbook, but Bray had not yet deposited the Cash in a bank account. Bray explained to Jimenez and Warner that she had not had time to drive to the bank. Jimenez instructed her to deposit the funds in a bank promptly. Despite this incident, on July 1, 2009, Bray received a "Satisfactory" rating for her work during the period of September 2008 through June 2009.

Sometime in July of 2009, Jimenez asked Bray to bring a binder with financial documents to his office. Jimenez met Bray in the hallway, "leaned in" toward her, "sniffed" her neck and laughed.

In July of 2009, Bray began to complain about Jimenez's sexual harassment. In addition to informing her Union representative Juanita Bass ("Bass"), and the Deputy Director for Human Resources with the DOE Judith Rivera ("Rivera"), Bray reported Jimenez's sexual advances to investigator Michael Humphreys of the Special Commissioner's Office of Investigation. In September 2009, Bray filed a complaint with DOE's Office of Equal Opportunity ("OEO") alleging that Jimenez had sexually harassed her.[1] On September 4, OEO sent an email to Jimenez notifying him that the OEO was in receipt of Bray's sexual harassment complaint against him. The plaintiff claims that this notice precipitated retaliation against her by Jimenez, Milton, and Mayo Pepein, the AP of Technology. Milton had moved into the office Bray had when Bray was AP of Operations. Milton began sending emails to Bray seeking information needed for the position and pointing out errors Bray had made. Bray felt this conduct was retaliatory.

On September 3, 2009, the day before Jimenez received notice of the plaintiff's OEO complaint, Jimenez met with Bray and Bass her union representative, to discuss the Cash that Bray had failed to deposit. Afterwards, Jimenez sent Bray a memorandum describing the meeting, noting that Bray had violated a Chancellor's Regulation, which required her to deposit money promptly, and warning Bray that she might receive an unsatisfactory rating for the school year and be fired.

On September 6, Bray met with Superintendent Pena to discuss Jimenez's harassment. A month later, on October 5, Jimenez met with Bray and Bass to review allegations against Bray of professional misconduct and insubordination. That same day, Jimenez placed a letter in Bray's file indicating that Bray had disrupted an administrative meeting on September 24 in Jimenez's office. Sometime in October, in an effort to avoid receiving an unsatisfactory rating, Bray applied to enter a supervisory support program. In December, however, Jimenez refused to allow Bray to participate in the program.

On October 13, Bray served a notice of claim on the DOE, alleging claims against the DOE for negligent hiring and creation of a hostile work environment. The notice of claim provides the following description of the "time when, the place where and the manner in which the claim arose:"

On or about July 15, 2009... Jose David Jimenez, sexually assaulted Claimant by inappropriately touching, getting to [sic] close, and sniffing Claimant. Respondents' employees were negligent in failing to supervise their employee, Mr. Jimenez....

On December 1, Jimenez placed a second letter in Bray's file indicating that Bray had failed to provide updated balance sheets for School accounts, to secure School funds, and to monitor health compliance mandates for students' tuberculosis vaccinations.

On December 11, Jimenez filed a Pedagogical Supervisory Personnel Report in which he recommended a "discontinuance" of Bray's "Probationary service, " which translated into Bray being removed from her position as AP, and transferred to another school. Afterwards, Pena, the school district's outgoing superintendant, sent Bray a memorandum giving her notice that her position as an AP with the School would be "discontinued" starting January 11, 2010. That same day, Pepein asked Bray to vacate the School building because it would be closed for the weekend. A building safety agent escorted Bray and her male companion from the building. On January 27, Bray ...

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