United States District Court, S.D. New York
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
Janusz Krzesaj brings this action against New York City
Department of Education (“DOE”), and Principal
Judy Henry and Assistant Principal Luis Santiago, in their
official and individual capacities (together,
“Defendants”), alleging employment discrimination
and retaliation, intentional or negligent infliction of
emotional distress, and defamation. Before the Court is
Defendants' motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6).
reasons stated below, Defendants' motion is GRANTED in
part and DENIED in part.
is a forty-nine year old Polish man. Amended Complaint ¶
9. He has numerous master's degrees, including in
education, physical education and sports psychology, exercise
science, and sports management, and previously taught
physical education at a primary school in Poland.
Id. at ¶ 17. In addition to playing
professional soccer in Europe, Plaintiff has also coached a
number of different sports and has several coaching licenses.
February 2004, Plaintiff, a member of the United Federation
of Teachers (“UFT”), was hired as a full time
physical education teacher at the Queens Gateway to Health
Sciences Secondary School
(“Gateway”). Id. at ¶ 12. At Gateway,
Plaintiff started a number of athletic and educational
programs. For example, he helped Gateway join the Public
School Athletic League (“PSAL”) by creating
eligible rugby, cross country, volleyball, track and field,
and basketball teams. He also helped Gateway join the CHAMPS
School Sports and Fitness League for its junior high school
students. Id. at ¶ 16. From 2004 to 2013,
Plaintiff received year-end ratings of
“satisfactory.” Approximately eight years after
he joined Gateway, in May 2012, Defendant Judy Henry became
the Principal. One month later, on June 2, 2012, Plaintiff
emailed her to report dangerous conditions in the school gym.
Id. at ¶ 18. Later that month, he applied to
coach the school's PSAL soccer team. Id. at
¶ 22. Plaintiff claims that shortly after his complaint
about the conditions in the gym, Henry called him in for a
disciplinary conference and placed a disciplinary letter in
his personnel file claiming that he had been insubordinate.
Id. at ¶ 20. He also alleges that despite his
qualifications and seniority rights pursuant to the
collective bargaining agreement (“CBA”) between
the DOE and UFT, Henry rejected his application to coach the
soccer team, causing the PSAL to shut the program down at the
school. Id. at ¶ 22.
asserts that Henry's “campaign of harassment
against him” then continued for four academic years
(2012-2016). Id. at ¶ 21. Specifically, he
claims that Henry subjected him to numerous unjust
disciplinary conferences and placed unfounded disciplinary
letters in his personnel file. Id. She also wrote
allegedly false evaluations after observing Plaintiff's
classes and denied his applications for per-session coaching
positions. Id. Plaintiff further argues that Henry
failed to provide reasonable accommodations for him despite
knowing of his multiple knee surgeries, cancer diagnosis, and
other physical ailments. Id. Finally, Plaintiff
claims that despite having successfully grieved numerous
disciplinary actions and unfounded teacher ratings issued
against him, those actions and ratings are still reflected in
his personnel file.
claims that Henry began harassing him at the very beginning
of the 2012-2013 academic year, by delaying the start of the
CHAMPS sports programs for three weeks. Id. at
¶ 23. Henry also made rude comments about
Plaintiff's physical appearance and in response to
Plaintiff's questions regarding the appropriateness of
his class assignments for the year. Id. at ¶¶
24-25. Plaintiff claims that in May 2013, Henry called
Plaintiff to a meeting to inform him that he could not sit
down during his classes. Id. at ¶ 26. Although
Plaintiff explained that he sat because he had undergone
three surgeries on his knee and suffered from back pain,
Henry refused to accommodate him. Id. at ¶ 26.
Plaintiff filed at least three union grievances against Henry
during the academic year, none of which Henry addressed.
Id. at ¶ 27.
Academic School Year
alleges that the following academic year, he was selected by
Gateway's staff to be on the School Leadership Team
(“SLT”). Id. at ¶ 27. He claims
that Henry was very hostile to him during SLT meetings and
that he reported her alleged misconduct to the Special
Commissioner of Investigation (“SCI”).
Id. at ¶ 28. Plaintiff also claims that Henry
denied his applications for coaching positions for both the
CHAMPS and PSAL programs. Specifically, in September,
Plaintiff was denied the CHAMPS fall coaching position,
though he had retention rights pursuant to the UFT contract.
Id. at ¶ 29. In November, Plaintiff was denied
the PSAL varsity girls basketball coaching position, and the
head and assistant coaching positions for the varsity
indoor/outdoor track team. Id. at ¶ 32.
Instead, Henry hired unlicensed and unqualified teachers and
paraprofessionals. Id. at ¶ 43. Plaintiff filed
a union grievance contesting Henry's denial of his CHAMPS
fall coaching application. Id. at ¶ 29.
Plaintiff was also subsequently denied the CHAMPS coaching
position for the winter season - again, despite his
contractual rights. Id. at ¶ 36. However, on
March 18, 2014, after a grievance hearing, a representative
from the Chancellor's Office of the DOE found that
Henry's denial of Plaintiff's application for the
CHAMPS coaching position was “illegal, ” and
ordered Henry to allow Plaintiff to recover lost wages.
Plaintiff was not paid until over a year later, in May 2015.
Id. at ¶ 37.
further alleges that later that year, in October 2013, Henry
scheduled a disciplinary conference in which she accused him
of improperly organizing practices for the rugby team during
the offseason and issued a disciplinary letter based on the
accusation. Id. at ¶ 30. Plaintiff asserts that
during the 2013-2014 academic year, Henry made numerous false
accusations against Plaintiff resulting in at least thirteen
disciplinary conferences and two disciplinary letters added
to his file. Id. at ¶ 31. On December 16, 2013,
Plaintiff filed a grievance against Henry for harassment.
Id. at ¶ 33. Shortly thereafter, Plaintiff
received three disciplinary letters. Id. at ¶ 34.
Henry also gave Plaintiff a rating of
“ineffective” after a purported class observation
in April, though Plaintiff claims that Henry did not actually
observe his class. Id. at ¶ 39.
19, 2014, during one of his classes, Plaintiff tripped on the
gym floor, which was in a state of disrepair, and dislocated
his toe. Id. at ¶ 40. He was immediately taken
to the hospital and soon after, filed the paperwork for a
line of duty injury. He alleges that he was not granted this
status until approximately one month later. Id.
end of the school year, Henry gave Plaintiff an overall
rating of “ineffective” for the 2013-2014
academic year. Id. at ¶ 41. Plaintiff appealed
Henry's rating, but the DOE agreed to remove it before
the appeal could be heard. The DOE also ordered Henry to
remove the allegedly false observations of Plaintiff's
class that she had filed in April. Id. at ¶ 63.
Though the rating was removed the following school year,
Plaintiff asserts that the false observations have yet to be
removed. Id. at ¶ 41.
September 3, 2014, Plaintiff was assigned a schedule that
included a majority of classes outside of the areas in which
was licensed to teach. Id. at ¶ 42. The classes
also required Plaintiff to travel to five different
classrooms, despite his physical limitations. Consequently,
Plaintiff filed a reorganization grievance, which resulted in
an order requiring Henry to change Plaintiff's schedule.
Id. On November 17, Henry issued Plaintiff a
memorandum stating that he was not permitted to sit during
his lessons. Id. at ¶ 48. In response,
Plaintiff gave Henry a doctor's note explaining that he
could not stand for more than thirty minutes at a time due to
his physical ailments. Id. During the school year,
Plaintiff sent an email to Henry requesting an elevator key
to facilitate his access to the various classrooms. He claims
that Henry delayed granting his request for over a year.
Id. at ¶ 57.
December 9, 2014, Henry transferred all of the special
education students from another physical education
teacher's class to Plaintiff's class without giving
Plaintiff the students' Individualized Education Plans
(“IEP”). Id. at ¶ 50. Though
Plaintiff requested the IEPs several times, his requests were
ignored. Id. Plaintiff claims that Henry transferred
the students to lower his Measure of Student Learning
(“MOSL”) rating score for the 2014-2015 school
year. Id. at ¶¶ 50, 54. That
same day, Henry observed Plaintiff's class. Though
Plaintiff's lesson for the class required strict
adherence to the DOE protocol for “fitnessgram testing,
” and he alleges that he followed the protocol, Henry
rated his lesson as ineffective. Henry also reproached
Plaintiff for sitting during the class. Id. at
¶ 51. Plaintiff successfully grieved the rating
resulting in an order from the DOE directing Henry to remove
the evaluation from Plaintiff's teaching file.
Id. However, the evaluation still remains in
Plaintiff's file. Id. On December 22, Plaintiff
also filed a complaint with the New York State Education
Department Office of Special Education (“NYSED”)
reporting Henry's violation of Special Education laws by
failing to provide him with copies of the students' IEPs.
The NYSED substantiated all of Plaintiff's allegations.
Id. at ¶ 53.
also claims that he had to attend numerous disciplinary
conferences that year. As a result of his ineffective rating
for 2013-2014, Plaintiff was placed on a “teacher
improvement plan” or TIP for the 2014-2015 academic
year. Though he attempted to gather more information about
what was expected of him under the plan, Plaintiff claims
that Henry refused to answer his questions and instead
scheduled him for a disciplinary conference accusing him of
“conduct unbecoming a professional.” Id.
at ¶ 44. Plaintiff attended additional disciplinary
meetings for purported acts of insubordination and theft of
services, id. at ¶¶ 47, 60, and for
allegedly verbally abusing a student. Id. at ¶ 61.
Plaintiff was also allegedly forced to attend three
disciplinary meetings as a result of an action plan he
instituted in response to a reported gun threat. Plaintiff
asserts that a student reported the threat at a meeting and
though multiple attempts were made to contact Henry, she
could not be reached at the time. Id. at ¶ 62.
In addition to the disciplinary meetings, Henry also reported
Plaintiff to the Office of Special Investigations for his
29, 2015, Defendant Assistant Principal Luis Santiago
assigned Plaintiff to cover classes for absent colleagues
during Plaintiff's “prep periods.”
Id. at ¶ 64. Plaintiff claims that he needed
the periods to prepare for his difficult teaching schedule,
but was directed to cover the classes on a daily basis
nonetheless. Because Plaintiff was having difficulty
preparing for his classes without the prep period, Santiago
summoned Plaintiff to a disciplinary meeting. Id.
The next month, Henry observed one of Plaintiff's classes
and once again rated his lesson as ineffective. Id.
at ¶ 65. Plaintiff filed complaints concerning the
ratings, which were later substantiated through arbitration.
Id. at ¶ 75. As a result, Henry was ordered to
remove the observations and change Plaintiff's rating.
Plaintiff claims Henry has not complied with the
arbitrator's order and that the observation and rating
are still in his file. Id.
had the previous academic year, Henry again denied
Plaintiff's coaching applications for the year. On
October 15, 2014, Plaintiff was denied the coaching position
for the soccer program. He was also denied coaching positions
for the PSAL basketball team. Id. at ¶ 49. In
March, Henry denied Plaintiff's application to coach the
rugby team (the program he created), preventing the
students' participation in the first set of games.
Id. at ¶ 59. Plaintiff filed a grievance with
Henry challenging her denial of his PSAL coaching
applications, but Henry never responded. Id. at
also rated Plaintiff ineffective for the 2014-2015 academic
year. Id. at ¶ 66. Plaintiff filed complaints
about his rating and improper observations, and asserts that
the rating will most likely be deemed unjustified because he
was given overall ratings of effective by a neutral peer
validator. Id. at ¶¶ 66, 104.
alleges he was disciplined or retaliated against on an almost
monthly basis during the 2015-2016 academic year. Starting in
September, Plaintiff was once again placed on a TIP due to
his poor rating. Id. at ¶ 69. After asking
questions about the TIP - which was identical to the one he
had received the previous year - a disciplinary letter was
added to his file. Id. at ¶ 73. Approximately
two weeks later, Henry displaced the physical education
teachers from their office by allowing an outside
vendor's after school program to use the space. Plaintiff
claims that the two other physical education teachers were
given separate offices, however, he was never assigned
another office. Id. at ¶ 67. Henry also denied
Plaintiff's applications for six coaching positions for
the year, citing his ineffective rating as the reason for the
denials. Id. at ¶ 68.
October 8, 2015, Henry prohibited students from participating
in “crossfire, ” a fitness program created by
Plaintiff involving intramural competitions, which Henry had
approved and even participated in during the 2012-2013
academic year. Henry also placed restrictions on
Plaintiff's and his students' use of Gateway's
outside facilities, though she did not place the same
restrictions on the other physical education teachers or
their students. Id. at ¶ 70.
November 3, 2015, Plaintiff received a letter threatening
disciplinary action as a result of his absences, despite his
having submitted a doctor's note explaining the reason
for his absences. Id. at ¶ 72. Later that
month, Plaintiff was diagnosed with cancer and was scheduled
for surgery on December 18, 2015. Id. at ¶ 74.
Though Henry was well aware of Plaintiff's diagnosis and
the date of his surgery, she nonetheless scheduled a TIP
meeting on the very day of Plaintiff's surgery.
Id. at ¶ 77. Plaintiff claims that Henry
repeatedly scheduled meetings on days that she knew he would
January 27, 2016, Henry scheduled Plaintiff for two
disciplinary meetings to address alleged accusations of
misconduct. Id. at ¶ 78. In early February,
Plaintiff filed complaints against the school administration
with SCI. Id. at ¶ 80. He claims that in
retaliation for filing the complaints, Plaintiff was assigned
to a desk behind a pile of boxes, garbage, dirty clothes, and
commercial printers. Id. He and his students were
also denied access to the fitness center. Id.
March, Plaintiff filed complaints with the New York
State's Public Employment Safety and Health Bureau
(“PESH”) and the United States Occupation and
Health Administration (“OSHA”), reporting that
two tons of loose metal shelves were piled up in the locker
room used by the students and physical education teachers,
and that the gym floor (on which he had previously tripped)
was damaged. Id. at ¶ 83. Just one month later,
in April, after a hearing on his improper rating, Plaintiff
found that the administration had installed a partition
around his desk in the former physical education office.
Id. at ¶ 82. The partition had a strong toxic
odor which caused Plaintiff nausea, headaches and burned his
eyes and throat. Thereafter, Plaintiff filed another safety
hazard complaint with PESH. Id. PESH responded to
Plaintiff's complaint on April 25, ordering Henry to
eliminate the source of the odor from Plaintiff's office
and provide a report of the completed task. Plaintiff claims
that Henry did not comply with PESH's order. Id.
at ¶ 86.
the end of the school year, both Henry and Santiago conducted
observations of Plaintiff's class. Henry gave Plaintiff a
rating of ineffective for the lesson she observed, which
Plaintiff contested by filing numerous complaints. Plaintiff
claims that Henry did not address any of his filings,
id. at ¶ 84, but instead scheduled him for
three separate disciplinary hearings concerning “petty
accusations” against him, id. at ¶ 85.
Henry also gave Plaintiff a memorandum prohibiting the use of
Plaintiff's particular “teaching methods, ”
which Henry had previously approved. Id. at ¶
89. On May 11 and June 6, Santiago observed Plaintiff's
class, and like Henry, rated Plaintiff's lessons
ineffective. Id. at ¶¶ 91, 93. He
claims that during the observation on June 6, Santiago
insisted that Plaintiff force Muslim students, who were
fasting for Ramadan, to participate in strenuous physical
activities. Id. at ¶ 97. Plaintiff filed
several complaints about Santiago and his improper
observations and ratings. Id. at ¶¶
101-02. On June 27, 2016, he also filed two complaints with
the United States Attorneys' Office (“USAO”)
regarding Santiago's treatment of Muslim students and his
punishment of Plaintiff for accommodating them. Id.
at ¶ 101.
23, Plaintiff received his schedule for the 2016-2017
academic year. Fifty percent of his classes were located on
the fourth floor. Id. at ¶ 99. Since Henry
refused to give Plaintiff an elevator key, Plaintiff would be
forced to walk up and down four flights of stairs, despite
Henry's knowledge of Plaintiff's physical
limitations. Id. at ¶ 99. The next day, on June
24, the day of the junior high school graduation, Plaintiff
was ordered to attend morning meetings, which prevented him
from presenting awards at the graduation, as he was scheduled
to do. Plaintiff claims that Henry and Santiago purposefully
scheduled these meetings so that he could not attend the
ceremony. Id. at ¶ 100. Four days later, on
June 28, during the final faculty meeting, Plaintiff claims
that he was “humiliated and demeaned” when it was
announced in front of the entire staff that he would be
issued two disciplinary letters, an ineffective MOTP rating,
and an ineffective rating for a class evaluation.
Id. at ¶ 103. The entire faculty was also told
that Plaintiff would be placed on a TIP. That same day, in
contrast to Henry's and Santiago's ratings, Plaintiff
again received an overall rating of “effective”
from the neutral peer validator. Id. at ¶ 104.
Plaintiff does not allege that he was terminated, he claims
that Gateway has a history of forcing retirement or
transferring teachers over the age of forty, like Plaintiff.
He also claims that the administration specifically targets
teachers who, like him, are of foreign origin and have
accents. Id. at ¶ 105. As of the date of the
filing of the Complaint, Plaintiff was still employed at
filed a complaint with the Equal Employment Opportunity
Commission on January 16, 2015. Id. at ¶ 106.
On May 9, 2015, he received a right-to-sue letter. Plaintiff
brought the instant suit on April 20, 2016 against the DOE
and Henry alleging retaliation under 42 U.S.C. § 1983
and New York Civil Service Law § 75-b, intentional or
negligent infliction of emotional distress, and defamation.
(Doc. 1) On July 20, 2016, Plaintiff filed the Amended
Complaint adding Santiago as a defendant and asserting
employment discrimination and retaliation claims pursuant to
The Age Discrimination in Employment Act of 1967
(“ADEA”), Title VII, Americans with Disabilities
Act (“ADA”), and state and city laws. (Doc. 22)
The DOE and Henry filed the instant ...