Grosz v. N.Y.C. Dep't of Educ.
| Decision Date | 15 May 2023 |
| Docket Number | Index No. 102035/2011,Motion Seq. No. 005 |
| Citation | 2023 NY Slip Op 31636 (U) |
| Parties | CINDY B. GROSZ, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, NOREEN LITTLE, SHEILA JACKSON, EDNA LOCKE, and KATHLEEN D. COLE, Defendants. |
| Court | New York Supreme Court |
MOTION DATE 07/11/2022
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 005) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 were read on this motion to/for DISMISS LACK OF PROSECUTION .
Plaintiff Cindy B. Grosz brings this action against defendants New York City Department of Education ("DOE"), Noreen Little ("Little"), Sheila Jackson ("Jackson"), Edna Loncke[1]("Loncke") and Kathleen D. Cole ("Cole") (collectively, "the Individual Defendants") (together with DOE, defendants), for alleged employment discrimination, disparate treatment, and hostile work environment based on race and religion and retaliation in violation of New York State Human Rights Law (Executive Law § 290 et seq.) (NYSHRL) and New York City Hu man Rights Law (Administrative Code of City of NY § 8-101 et seq.) (NYCHRL) and for alleged retaliation in violation of Civil Service Law § 75-b, Labor Law § 740 and Administrative Code of the City of New York § 12-113 (3). Defendants now move, pursuant to CPLR 3211(a)(5) and (a)(7), 3126 and 3216, to dismiss the third amended verified complaint.
The following facts are taken from the third amended verified complaint ("the complaint") unless otherwise noted and are assumed to be true for purposes of this decision.
Plaintiff identifies as a "Caucasian, observant Jew" (NY St Cts Elec Filing [NYSCEF] Doc No. 7, Elisheva Rosen [Rosen] affirmation, exhibit A, complaint ¶ 134). She was employed by DOE as a fully tenured teacher at P.S. 156 (the School) from September 2001 until July 30, 2013, when she was terminated after a disciplinary hearing held under Education Law § 3020-a (id., ¶¶ 8-9 and 129). Plaintiff reported to Little, the principal, and Jackson Loncke and Cole, the assistant principals, all of whom are "non-Jewish, African-Americans" (id., ¶¶ 5-6 and 134).
It is alleged that beginning in March 2007, the Individual Defendants engaged in actions plaintiff believed constituted improper governmental action or conduct which constituted a violation of law and presented a substantial danger to the health, safety and educational welfare of children (id., ¶ 13). Plaintiff alleges that Little and Loncke falsified documents and testimony before the DOE and to representatives of the United Federation of Teachers ("UFT") in the spring and fall of 2007, improperly promoted students and mishandled an incident involving a student with a weapon (id., ¶¶ 14-16).
In the fall of 2009, plaintiff contacted DOE's Special Commissioner for Investigation ("SCI") and sought whistleblower protection (id., ¶ 17). Plaintiff complained that Little had failed to report weapons found in the school and cases of suspected child abuse, among other complaints (id., ¶ 18 and 24). Plaintiff made similar complaints about Jackson (id., ¶¶ 21-23).
After Little learned of the disclosures, she and the other Individual Defendants allegedly embarked on a campaign of unjustified retaliation against plaintiff during the 2009-2010 school year (id, ¶¶ 26-27). Plaintiff complains they wrote "letters to file" and memoranda about plaintiffs behavior management system; insubordination in failing to follow protocols for reporting suspected child abuse or neglect to the Administration for Children's Services ("ACS"), and other issues (id, ¶¶ 29-44). They refused to assist with unruly students (id, ¶¶ 54-55); made unspecified false statements to parents about plaintiff (id, ¶ 57); reprimanded plaintiff (id, ¶ 58); and issued two "unsatisfactory" observations or performance reviews (id, ¶¶ 46-49). During the 2010-2011 school year, defendants wrote letters to file about plaintiffs "unsubstantiated" reports of suspected child abuse or neglect to ACS and other issues (id, ¶¶ 62-64 and 68-72, 84-86, 88, 90-91, 101); reprimanded plaintiff (id, ¶¶ 60, 61, 87, 103); refused to provide equipment and tools for the classroom (id., ¶¶ 66, 73, 120); refused to assist with unruly students (id., ¶¶ 75-77 and 93); issued unsatisfactory observations or performance reviews (id, ¶¶ 67 and 82-83, 122); refused to consider plaintiffs application for an afterschool position (id, ¶ 81); and talked about plaintiff with others (id, ¶ 104). By letter dated September 10, 2010, SCI informed plaintiff that her "claim does not constitute a violation of whistleblowing statutes or regulation" (id, ¶ 127).
Plaintiff alleges that she was subjected to discrimination based on race and religion, disparate treatment, a hostile work environment and retaliation. Plaintiff claims that Little has not hired a Jewish teacher in years, terminated a disproportionate number of Caucasian teachers and chose to discipline only Caucasian and Jewish staff for misconduct (id, ¶¶ 149 and 155). In October 2010, Little asked staff if they were Jewish, telling them she had to "equalize the staff" (id., ¶ 151). Plaintiff alleges that Little made numerous public remarks about Jews (id., ¶¶ 139, 145 and 148); commented on plaintiff's religious-based attire (id., ¶ 141); wrote unjustified letters to file (id., ¶ 144); rolled her eyes when discussing the Jewish holidays (id., ¶ 146); asked teachers to make an effort to work during the Jewish holidays (id., ¶ 147); scheduled a "Meet the Teacher" night during two Jewish holidays (id., ¶¶ 148 and 150); failed to observe Hanukkah but observed Christmas and Kwanza (id., ¶ 152); announced that Women's History Month for March 2011 should focus on the study of black women (id., ¶ 153); and caused anti-Semitic misinformation about Jewish history to be taught to an African studies extracurricular study group (id., ¶ 155). Plaintiff also claims that race and religion were motivating factors in the decision Little and Jackson made to terminate her from an afterschool program on the day she told them she would be visiting Israel for her son's Bar Mitzvah[2] (id., ¶¶ 142-143).
Plaintiff alleges that she was treated differently from other, similarly situated teachers. For instance, other teachers were not inundated with letters to file or memoranda (id., ¶ 45) and given letters to file after the 2009-2010 school year ended (id., ¶¶ 50-52), or because of classroom behavior issues (id., ¶ 92). Plaintiff also complains that she was the only teacher who was required to make copies of a summer reading log (id., ¶ 74); not provided with certain education tools and materials (id., ¶ 78); directed to provide conferring notes (id., ¶ 80); not allowed to attend a class trip (id., ¶102); told that she would never receive a satisfactory rating (id., ¶ 141); and required to reschedule a voluntary "Meet the Teacher" night (id., ¶ 150).
By letter dated May 10, 2011, SCI's First Deputy Commissioner notified DOE's Chancellor of the results of an investigation into a complaint SCI had received from the Queens County District Attorney (NYSCEF Doc No. 9, Rosen affirmation, exhibit C at 1). The Queens County District Attorney had earlier received a complaint from a guidance counselor at the school that plaintiff had made false reports of suspected child abuse to ACS (id.). The letter indicated that ACS determined 11 of the reports made between February 3 and November 23, 2010 were unfounded, and that one parent had filed a complaint with SCI about plaintiff (id. at 4). SCI recommended terminating plaintiff's employment and referred its findings to the Queens County District Attorney "for whatever action he deems appropriate" (id. at 5).
Shortly thereafter, Little wrote two letters to file concluding that plaintiff had engaged in professional misconduct by filing false reports with ACS between February 3 and November 23, 2010 and advising plaintiff that she was in danger of receiving an unsatisfactory rating (complaint, ¶¶ 100-101). Plaintiff alleges that Little and her allies at the school gave SCI false information to initiate SCI's report and caused others to give false statements to ACS and the Queens County District Attorney (id., ¶¶ 96-99).
In a separate memorandum dated May 11, 2011, DOE's Office of Special Investigation ("OSI") concluded that plaintiff had tampered with an ongoing investigation by, among other actions, failing to report an incident of corporal punishment involving Jackson (id., ¶ 94).
On June 3, 2011, plaintiff was served with a Notice of Charges pursuant to Education Law § 3020-a; the New York State Commissioner of Education was also served (id., ¶¶ 105-106). At Little's request, plaintiff was suspended with pay on June 8, 2011 pending a hearing and determination on the charges (id., ¶¶ 110-111), and plaintiff was listed as "pending" in an organization sheet for the 2011-2012 school year (id., ¶ 121). In March 2012, plaintiff was reassigned to the Children's First Network where, plaintiff claims, Charles Geier, Director of Human Resources, annoyed and harassed her for no justifiable reason (id., ¶¶ 124-126).
Hearing Officer Earl R. Pfeffer, Esq. ("Hearing Officer Pfeffer") held a hearing over 37 days, took testimony from numerous witnesses, including plaintiff, and received numerous exhibits (NYSCEF Doc No. 8, Rosen affirmation exhibit B at 2). The 24 specifications, some with...
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