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Pekowsky v. Yonkers Bd. of Educ.

United States District Court, S.D. New York

May 29, 2014


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For plaintiff: Christopher D. Watkins, SUSSMAN & WATKINS, Goshen, NY.

For Yonkers Board of Education, Defendant: Vincent P. D'Andrea, THOMAS, DROHAN, WAXMAN, PETIGROW & MAYLE LLP, Scarsdale, NY.

For Jane Wermuth, Defendant: Michael A. Miranda, MIRANDA SAMBURSKY SLONE SKLARIN VERVENIOTIS LLP, Mineola, NY.

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DENISE COTE, United States District Judge.

Plaintiff Marc Pekowsky (" Pekowsky" ), a music teacher in the Yonkers School District, brought this action against the Yonkers Board of Education (" BOE" ) and his former principal, Jane Wermuth (" Wermuth" ), alleging that defendants retaliated against him for exercising his First Amendment right to advocate on behalf of the teachers' union and his fellow union members as his school building's elected union representative. Defendants each moved for summary judgment on February 7, 2014. For the reasons set forth below, defendants' motions are denied.


The following facts are undisputed or, where factual disputes exist, the evidence is construed in the light most favorable to plaintiff and all reasonable inferences are drawn in his favor. Pekowsky has worked as an instrumental music teacher in the Yonkers School District since 1996 and at Yonkers Middle High School (" YMHS" ) since 2004. Pekowsky served as a representative for the teachers' union, the Yonkers Federation of Teachers (" YFT" ), since 2008.

As a union representative, Pekowsky frequently dealt with YMHS's principal, Wermuth, since 2010, when she was appointed to YMHS. Wermuth has admitted that she felt that Pekowsky was " difficult [to deal with] as a union rep." Pekowsky recalls " numerous conversations" with Wermuth about " the impact of union rules . . . and how they were . . . 'handcuffing' [Wermuth] from doing things that she felt should be done and in a [manner] that she thought they should be done."

In the fall of 2011, Wermuth and Pekowsky butted heads about teacher compensation. The Yonkers School District cut money allocated to extracurricular activities, which teachers had been paid to supervise. Wermuth asked YMHS teachers to continue to supervise those activities for a certain hourly fee, but the YFT believed that this violated a provision of the collective bargaining agreement. Pekowsky toed the union line and opposed Wermuth's proposal. Pekowsky recounts that in his meetings with Wermuth on the subject, " there were raised voices and angry tones of voice and flippant remarks about teachers and unions."

In October 2011, a teacher at YMHS, Nicole Roura (" Roura" ), was faced with a parent complaint regarding a lesson in her classroom. Wermuth advised Roura to use the YFT's alternate representative, Andrew Seligman (" Seligman" ), instead of Pekowsky. Pekowsky, accompanied by Seligman, confronted Wermuth about her advice to Roura. Wermuth confirms that she told Pekowsky she did not wish to deal with him, accused him of lying, and told Seligman she would be " very happy" to deal with him instead.

The issue was raised with Wermuth again at the October 24, 2011 meeting of the Teachers' Interest Committee (" TIC" ), which Pekowsky headed as YFT's representative. Wermuth was informed that the YFT had been notified and that YFT had " brought it to the attention of Central School Administrators." According to minutes from the meeting, Wermuth responded: " Became frustrated with Mr. Pekowsky always elevating everything to emergency status. Was trying to protect the teacher. Will not happen again."

On Friday, January 27, 2012, Wermuth scheduled meetings with two teachers during

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fifth period to discuss concerns about teaching methods and excessive absences. Wermuth informed Seligman of the meetings, who in turn told Pekowsky. Pekowsky asked Wermuth to arrange coverage of his fifth-period class so that he might attend the meeting and represent the teachers; Wermuth told him, if he " c[ould]n't find coverage, [Pekowsky] shouldn't be there." Pekowsky arranged for a fellow music teacher to cover his class and attended the meetings. Wermuth was upset that Pekowsky had " excused himself from his own class . . . without administrative approval" and " made a mental note to revisit the issue" later.

Later that day, Pekowsky came upon two students in the hallway. One, E.C., was a sixth- or seventh-grade student with a history of assaulting school staff. Pekowsky asked what they were doing; E.C. told him to " fuck off" and ran away. Pekowsky went to the main office to report the boys and found E.C. there. According to a report by the school district's investigator, Pekowsky told E.C. to sit down and then stood in the doorway to prevent E.C. from running off. When E.C. attempted to push past him, Pekowsky blocked him with his chest, " chest bumping and nudging" him. E.C. then threatened Pekowsky, telling him he would " fuck [him] up." Pekowsky raised his voice to tell others in the main office that such threats could not be tolerated. A secretary called Wermuth from her office; Wermuth then spoke with E.C. and Pekowsky left the main office. The month before, E.C. had " kicked, punched, and spit on safety officers and also attempted to bite [a] safety officer" and " threatened to shoot [a] safety officer and blow up the school." Wermuth and others were already " working [to arrange] . . . hospitalization for him."

Upon leaving the main office, Pekowsky encountered two students and a student aide in the hallway. Pekowsky, " in an agitated state," asked if the ...

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