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Krzesaj v. New York City Department of Education

United States District Court, S.D. New York

March 15, 2017

JANUSZ KRZESAJ, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, JUDY HENRY, in her official and individual capacity, and LUIS SANTIAGO, in his official and individual capacity, Defendants.

          OPINION AND ORDER

          Edgardo Ramos, U.S.D.J.

         Plaintiff 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).

         For the reasons stated below, Defendants' motion is GRANTED in part and DENIED in part.

         I. Factual Background[1]

         Plaintiff 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. Id.

         In 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”).[2] 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.

         Plaintiff 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.

         2012-2013 Academic Year

         Plaintiff 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[3] and in response to Plaintiff's questions regarding the appropriateness of his class assignments for the year.[4] 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.

         2013-2014 Academic School Year

         Plaintiff 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.

         Plaintiff 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.[5] 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.

         On May 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.

         At the 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.[6] 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.

         2014-2015 Academic Year

         On 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.

         On 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.[7] 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.

         Plaintiff 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.[8] 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 actions. Id.

         On May 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.

         As she 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 ¶ 43.

         Henry 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.[9] Id. at ¶¶ 66, 104.

         2015-2016 Academic Year

         Plaintiff 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.

         On 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.

         On 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 be unavailable.

         On 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.

         In 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.

         Towards 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.[10] 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.[11] Id. at ¶ 101.

         On June 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.

         Though 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 Gateway.

         II. Procedural History

         Plaintiff 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 ...


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