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Collins v. Indart-Etienne

Supreme Court, Kings County

February 5, 2018

Latyana Collins, Plaintiff,
Joan Indart-Etienne, Defendant.

          Attorney for Petitioner Taubman, Kimelman & Soroka

          Attorney for Defendant Zachary W. Carter Corporation Counsel of the City of New York

          Of Counsel: Michael F. Fleming, Esq.


         Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:


         Defendant's Notice of Motion to Dismiss with Accompanying Affidavits and Exhibits 1

         Memorandum of Law in Support of Defendant's Motion to Dismiss the Complaint 2

         Plaintiff's Affirmation in Opposition with Accompanying Affidavits and Exhibits 3

         Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss 4

         Reply Memorandum of Law in Further Support of Defendant's Motion to Dismiss 5

         Sur-Reply Affirmation 6

         This case addresses the labyrinth of which preclusion doctrines apply when a federal district court rules upon both a federal cause of action and a state cause of action and then issues an order dismissing the state cause of action without prejudice. The district court ruled that: 1) a plaintiff need not file a notice of claim when suing a principal employed by the NYC Department of Education ("DOE") for allegedly violating the State and City Human Rights Laws ("NYSHRL" and "City HRL"), since the principal is not an officer of the DOE, and 2) denied the defendants motion to dismiss the State and City HRL claims against the principal for retaliating against plaintiff in response to her opposing the principal's campaign of age discrimination. As will be set forth below, the doctrines of collateral estoppel and law of the case apply to most of the federal court's rulings.

         Background Facts

         Plaintiff Latyana Collins ("plaintiff" or "Collins") was first hired by the DOE as a teacher in 2004 and received tenure in 2007. She then obtained a master's degree and subsequently took an examination for and obtained a license as an Assistant Principal ("AP"). After serving as a Citywide Master Teacher in Special Education for a year, plaintiff was promoted to the title of AP for District 79 - "Alternate Schools & Programs" - and was assigned to be one of three assistant principals in the Restart Academy. As a newly appointed AP, plaintiff had to serve a five year probationary period. At all relevant times, the principal of Restart Program was defendant Joan Indart-Etienne ("defendant" or "Etienne" or "principal"). Plaintiff's primary physical placement was at the Euphrasian Residence where her duties included ensuring students were receiving instruction, supervising and aiding the staff and observing and evaluating teacher performance.

         Although plaintiff opposed many of the practices employed by Etienne at Euphrasian Residences, believing them to be unlawful [1], of pertinence to the instant matter, plaintiff alleged that Etienne referred to tenured teachers of 60 years of age and over as "rubber room teachers" and repeatedly stated that "they had to go." (State Compl. at ¶24, Fed. Compl. at ¶50) [2] Etienne directed plaintiff to change from satisfactory to unsatisfactory the ratings that plaintiff had given said teachers as part of her evaluation duties, and told her that she ([plaintiff) needed to see what Etienne was seeing and that they "must get a U (unsatisfactory rating) (State Compl. ¶24, Fed Compl. ¶ 50). Etienne also repeatedly edited plaintiff's teacher observations reports and instructed plaintiff to focus on these older teachers and visit their classroom multiple times of days and harass them (State Compl. ¶26; Fed. Compl. ¶52.) In her state complaint, plaintiff specifically avers that the DOE "launched a campaign and engaged in a pattern and practice of terminating teachers nearing the age of 60 and or pressing or coercing them" to resign (State Compl. ¶27).

         In or around May and June 2012, when plaintiff refused to participate in the DOE and or Etienne's "discriminatory campaign to rid the schools of tenured teachers" 60 years and older, Etienne started to harass plaintiff, "openly criticizing and demeaning her" in front of the staff and "yelling and shouting at her, " and telling her that "this district is not a good fit for you." (State Compl. ¶28, Fed. Comp. ¶¶53-54) Plaintiff further alleges that Etienne threatened to give her, as a probationary administrator, an unsatisfactory rating on her end of the year annual performance evaluation unless she agreed to resign (State Compl. ¶29, Fed. Compl ¶54). In contrast, in or about the end of January 2012, prior to plaintiff's refusal to discriminate against older teachers, Etienne gave her written commendations for her excellent work. (State Comp. ¶33; Fed. Compl ¶58). During a meeting between Etienne and plaintiff's union representative, Collins heard Etienne say "I want her out.") (State Compl.¶ 30, Fed. Compl. ¶55).

         Following her resignation, plaintiff alleges that the DOE failed to follow its own rules and regulations and or its collective bargaining agreement, which mandated that plaintiff revert to her to her former position as a tenured "Master teacher" within District 28 and be assigned a permanent position (State Compl.¶34, Fed. Compl. ¶59. Instead, plaintiff " was assigned" to District 28's Absent Teacher Reserve ("ATR") where she acted as a substitute teacher on an as needed basis, with no permanent assignment, at a lower salary (State Comp.¶¶ 34, 35, Fed. Compl. ¶¶59, 60, 65).The ATR pool is usually reserved for teachers who have been excessed from failed or closed schools or who have been laid off (State Compl. ¶35, Fed. Compl. ¶60).Being in the ATR stigmatized plaintiff from receiving permanent job offers since teachers in the ATRs "are generally viewed negatively as poor teachers" who come from failing schools (State Compl. 39, Fed. Compl. ¶60). Plaintiff claims that during the 2012-2013 school year, she "constantly interviewed" for permanent positions but never received any job offers, " and states "Upon information and belief" that defendant gave her a poor reference, which precluded her from getting any job offer (State Compl. ¶38, Fed. Compl. ¶ 61-62). She specifically avers that during a meeting in September, 2012, Etienne made "false, negative and disparaging remarks about her" to former colleagues (State Compl. ¶37; Fed Compl. ¶62). She also avers that some unnamed DOE Human Resources person "conceded" that she should have reverted to her previous title of Master Teacher but failed to offer any explanation as to why that did not occur and stated "that she was lucky to be employed at all." (State Compl. ¶40, Fed. Compl. ¶65).

         Plaintiff also avers that in September 2013, she contacted the DOE and was told that a position was created for her in the Restart Program "i.e. Indart - Etienne" - and that she had been taken off of the ATR list (State Compl. ¶41, Fed. Compl. ¶66). She was sent to work at an alternative program in District 79 located in the Bronx which was far from her home in Queens and which constituted a "burdensome travel" (State Comp. ¶43, Fed. Compl. ¶68). Plaintiff claims that the principal of the GED Plus in the Bronx conceded that he had no need for but took her in based upon a call from a human resource person of District 79 who stated that a colleague of hers was "out to get Plaintiff due to no fault of her own." (State Compl. ¶44, Fed. Compl. ¶69) Plaintiff alleges that from September 2013 until February 2016 she did not receive a regular paycheck. Plaintiff then summarized a number of provisional positions she held, none of which permitted her to complete the requisites for her license as an Assistant Principal.

         In sum, plaintiff alleges that defendant Etienne retaliated against her for her complaints regarding age discrimination against teachers of the age 60 and "abused her authority in order to harass and unduly burden Plaintiff and negatively impact her career." (State Comp. ¶ 46, Fed Comp. ¶71 She also asserts that Etienne "orchestrated unduly influenced and/ or played a part in all the adverse actions" taken against her (State Compl. ¶66, . See also Fed. Compl. ¶ 71).

         Federal District Court Action

         Plaintiff originally commenced an action in the U.S. District Court for the Southern District of New York ("federal court") on June 26, 2015, against the DOE, the City of New York, and three individuals - the Superintendent and the Deputy Superintendent of District 79 and defendant Etienne, in both their individual and employee capacities, alleging that she was subject to adverse employment actions (threats of negative ratings, constructive discharge, poor reference, demotion and retaliatory job assignments) because she refused to discriminate against older teachers and because she complained about discrimination against disabled and minority students. Plaintiff initially brought eleven causes of action against the defendants.

         In a lengthy decision dated January 11, 2016, Collins v. City of NY, 156 F.Supp.3d 448 (S.D.NY 2016) Judge Valerie Caproni ("federal court") first noted that in response to defendants motion to dismiss, plaintiff dropped all of her claims against the City of New York and many other federal causes of action. As such the remaining claims subject to defendants motion to dismiss pursuant to Rule 12(b)(6) were based upon: The Equal Educational Opportunities Act of 1974 ("EEOA"), 20 U.S.C. §1701 et seq; the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §1400 et seq; § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. ("RHA"or §504"); the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.§621 et seq, and both the NYS HRL and the City HRL. as contained, respectively, in Executive Law § 290 et seq ("NYSHRL") and the Administrative Code of the City of New York § 8-101 et seq ("City HRL").

         Defendants asserted that Collins did not have standing to sue under the ADA, EEOA or IDEA; her claims were partially time barred under the applicable statute of limitations; her state claims were barred because she did not file a notice of claim as required by the Education Law; and her allegations failed to state a plausible claim for retaliation. 156 F.Supp.3d at 454. The federal court granted the motion to dismiss the EEOA, IDEA and ADEA on multiple of grounds, [3] thus leaving only the RHA claim extant, and also dismissed the state and municipal law claims against all defendants except for Indart-Etienne.

         With respect to the §504 claim, the court noted that plaintiff had conceded that any of her claims arising prior to June 26, 2012 were time barred pursuant to the three year state of limitations in New York. 156 F.Supp.3d at 458. The federal court rejected plaintiff's argument that it should still consider those time barred acts as admissible evidence in support of her timely retaliation claims under the continuing violation doctrine. The federal court found that "each incident of discrimination and each retaliatory adverse employment action constituted a separate 'unlawful employment practice.' " that started a "new clock" for filing charges . Id. citing to National RR Passenger Corp. V. Morgan, 536 U.S. 101, 113-14, 153 L.Ed.2d 106 (2002). Therefore, Collins' claims that she was constructively discharged and threatened with negative evaluations prior to June 26, 2012, were discrete actions that were time barred under the statute of limitations. Id. [4]

         The federal court then found that Collins had pleaded sufficient facts to establish that she engaged in protected activity under Section 504 and that there was a causal connection between the protected activity and the adverse action "albeit minimally" (Id.) [5] 156 F.Supp.3d at 458-59. The federal court found that accepting the Collins allegations as true and drawing all inferences in her favor, as it had to do at this stage of the proceeding, plaintiff had alleged a sufficient causal nexus between the protected activity and the adverse action to survive a motion to dismiss based on proximity in time combined with retaliatory animus." Id. at 459. The court found there was approximately six months between Collins alleged overt opposition to Etienne's alleged discriminatory actions against disabled students (protected activity), which seems to have occurred after Etienne gave her a positive evaluation in January 2012, and Collins alleged retaliatory assignment to the ATR (discriminatory treatment) which seems to have occurred in the summer of 2012, and that six months did not cross the outer limits to negate a sufficient causal nexus (Id. at 459). Finally the Court found that Collins had alleged retaliatory animus - Etienne's statement at a union meeting in June 2012 that "I want her out" and the District 79 HR representative's statement that District 79 should hire Collins "because a colleague of [hers] was out to get [Collins] due to no fault of her own." Id. at 459 citing to Fed. Comp. At 69. [6]

         Federal Decision on Collin's State and Municipal Claims

         Defendants moved to dismiss Collins' multiple state and municipal law claims that Etienne retaliated against her for refusing to discriminate against teachers on the basis of their age based upon Collins' failure to file a notice of claim re required by Education Law §3813. The federal court first noted that Education Law §3813 mandated that a notice of claim is be filed prior to commencing an action against a school, school district, board of education, or education officer, and that failure to present a claim within the statutory time limitation was a "fatal defect." 156 F.Supp.3d at 460. The court then ruled that while superintendents qualified as "officers" upon whom a notice of claim must be filed, principals did not. Id at 460 citing to Educ. Law §2(13) ; Benedith v. Malverne U.F.S.D., 38 F.Supp.3d 286, 312 (E.D.NY 2014); Lawson v. NYC Board of Educ., 2011 U.S. Dist. LEXIS 1277789 (S.D.NY 8/30/09). Since ...

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