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Giscombe v. New York City Dep't of Educ.

United States District Court, S.D. New York

August 12, 2014


Page 397

For Delroy Giscombe, Plaintiff: Joshua Sam Beldner, The Law Office of Steven A. Morelli, P.C, Garden City, NY; Steven Anthony Morelli, The Law Office of Steven A. Morelli, Garden City, NY.

For New York City Department of Education, Defendant: Adam Edward Collyer, LEAD ATTORNEY, New York City Law Department, New York, NY.

Page 398


ANALISA TORRES, United States District Judge.

In this action, Plaintiff, Delroy Giscombe, alleges claims of retaliation for engaging in protected activities in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (" Title VII" ) and 42 U.S.C. § 1983 against Defendant, the New York City Department of Education (" DOE" ). Defendant moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, the motion is DENIED.


Plaintiff, a physical education teacher employed by Defendant, has taught at A. Philip Randolph Campus High School in Manhattan since 2002. See Def. 56.1 ¶ ¶ 9, 10; Pl. 56.1 ¶ ¶ 9, 10. Plaintiff prides himself on being a disciplinarian and ensuring that rules and regulations are followed. Pl. 56.1 ¶ 10.3. Plaintiff's strict enforcement of the rules made him unpopular with students, and many complained that Plaintiff was too strict. Id. ¶ 10.5. In March 2010, six female students accused Plaintiff of staring at them and making inappropriate sexual comments towards them. Def. 56.1 ¶ 11; Pl. 56.1 ¶ 11. The assistant principal reported the allegations to the Office of the Special Commissioner of Investigation (the " SCI" ), which has broad authority to investigate fraud, misconduct, and other wrongdoing within the DOE. Def. 56.1 ¶ ¶ 6, 7, 12; Pl. 56.1 ¶ ¶ 6, 7, 12. After completing the investigation, the SCI substantiated the allegations against Plaintiff and recommended that Defendant take " appropriate disciplinary action" against him. Def. 56.1 ¶ 20; Pl. 56.1 ¶ 20. However, at that time, no disciplinary action was taken against Plaintiff and only a letter of reprimand was recommended. See Pl. 56.1 ¶ ¶ 21.2, 22.4.

In December 2011, Plaintiff complained to the school's principal, David Fanning, that he had experienced discrimination. Giscombe Dep. 74:24 - 75:7, Dec. 13, 2013. A few weeks later on January 19, 2012, Plaintiff initiated this lawsuit against Defendant, asserting claims of discrimination. See Compl., ECF No. 1. On February 6, 2012, Plaintiff initiated a charge of discrimination with the U.S. Equal Employment Opportunity Commission (" EEOC" ). Collyer Decl. Ex. I.

Also in early 2012, several DOE employees were arrested for sexual misconduct with students. Def. 56.1 ¶ 23; Pl. 56.1 ¶ 23. In February 2012, in response to the rash of sexual misconduct arrests, Dennis M. Walcott, DOE Chancellor, " pledged to take a retrospective look" at all cases where allegations of sexual misconduct against DOE employees had been substantiated by the SCI. Def. 56.1 ¶ 24; Pl. 56.1 ¶ 24. At Walcott's direction, his management team, including the DOE's General Counsel, Chief Academic Officer, Chief Operating Officer, and Deputy Chancellor of Human Resources, conducted a review

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of over 200 cases of allegations of sexual misconduct that had been substantiated by the SCI. Def. 56.1 ¶ 25; Pl. 56.1 ¶ 25. The purpose of the review was to determine whether there was more the DOE could have done to discipline a staff member who had committed sexual misconduct. Def. 56.1 ¶ 26; Pl. 56.1 ¶ 26.

As a result of this review, four non-tenured teachers had their employment discontinued, and four tenured teachers, including Plaintiff, were reassigned pending the outcome of disciplinary hearings pursuant to Education Law § 3020-a. Def. 56.1 ¶ 30; Pl. 56.1 ¶ 30. The retroactive disciplinary charges were forwarded for Fanning's review and " sign-off." Fanning Dep. 56:20 - 57:25; 80:16-24, Dec. 13, 2013. Plaintiff was removed from the school and reassigned on March 1, 2012. Pl. 56.1 ¶ 45.1. Based on the evidence presented at Plaintiff's disciplinary hearings, Plaintiff was suspended without pay for six months. See Def. 56.1 ¶ 44; Pl. 56.1 ¶ 44.

Before Fanning " signed-off" on the charges, one of the six female students who had accused Plaintiff of sexual misconduct wrote a letter admitting that she and the other students who had complained about Plaintiff had fabricated their stories in order to get Plaintiff fired because they did not like him and thought he wanted to " fail them on purpose." See Bender Decl. Ex. D. The letter was written in the presence of the school's assistant principal, Foster Ba, who testified that she spoke to Fanning about the statement. Id. Ex. E at 19. However, Fanning testified that he never saw the statement and never spoke to anyone about it, and even if he had received the statement, he would not have turned it over to the SCI. Fanning Dep. 62:14-63:21, Dec. 13, 2013.

Plaintiff believes the DOE re-opened his case as a means to retaliate against Plaintiff for his good faith opposition to the DOE's discriminatory practices. See Pl. 56.1 ¶ 28.1. Defendant insists that Plaintiff's case called for further disciplinary action based on the best interests of the students. See Def. 56.1 ¶ 28.


I. Standard of Review

Summary judgment may be granted only if the court concludes that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). A dispute is genuine when there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Material facts are those which may affect the outcome of a case. Id.

The moving party initially bears the burden of informing the court of the absence of a genuine dispute of material fact by citing to particulars in the record. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. 317 at 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265; Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002). The movant may satisfy his burden by " showing that the materials cited do not establish the absence or presence of a genuine dispute." Fed.R.Civ.P. 56(c)(1)(B). If the non-moving party has the burden of proof on specific issues, the movant may also satisfy his own initial burden by demonstrating that the adverse party cannot produce admissible evidence to support an issue of fact. Celotex, 477 U.S. at 322-23; PepsiCo Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002). In deciding the motion, the

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court views the record in the light most favorable to the non-moving party. Hunter v. Bryant, 502 U.S. 224, 233, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991); O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 61 (2d Cir. 2002).

If the moving party meets his initial burden, the burden then shifts to the opposing party to establish a genuine issue of fact. Beard v. Banks, 548 U.S. 521, 529, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006); Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). The opposing party may not avoid summary judgment by relying solely on conclusory allegations or denials that are unsupported by factual data. Fed.R.Civ.P. 56(c); Amaker v. Foley, 274 F.3d 677, 680-81 (2d Cir. 2001). Instead, the opposing party must set forth " specific facts showing there is a genuine issue for trial." Celotex, 477 U.S. at 324 (internal quotation marks omitted). A nonmoving party demonstrates a " genuine ...

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