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

• Decision Date: 24 April 2012
• Citation: 94 A.D.3d 593,2012 N.Y. Slip Op. 03081,114 Fair Empl.Prac.Cas. (BNA) 1615,279 Ed. Law Rep. 325,943 N.Y.S.2d 48
• Parties: Ayodele SANDIFORD, Plaintiff–Appellant–Respondent, v. CITY OF NEW YORK DEPARTMENT OF EDUCATION, et al., Defendants–Respondents–Appellants,The Research Foundation, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

114 Fair Empl.Prac.Cas. (BNA) 1615

2012 N.Y. Slip Op. 03081

279 Ed. Law Rep. 325

94 A.D.3d 593

943 N.Y.S.2d 48

Ayodele SANDIFORD, Plaintiff–Appellant–Respondent,

v.CITY OF NEW YORK DEPARTMENT OF EDUCATION, et al., Defendants–Respondents–Appellants,The Research Foundation, et al., Defendants.

Supreme Court, Appellate Division, First Department, New York.

April 24, 2012.

Meenan & Associates, LLC, New York (Colleen M. Meenan of counsel), for appellant-respondent.

Michael A. Cardozo, CorporationCounsel, New York (Mordecai Newman of counsel), for respondents-appellants.TOM, J.P., SAXE, CATTERSON, MOSKOWITZ, MANZANET–DANIELS, JJ.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered on or about February 18, 2010, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment insofar as it sought dismissal of plaintiff's retaliation claim under the New York City and the New York State Human Rights Law and denied the motion insofar as it sought dismissal of her discrimination claims, modified, on the law, to deny the motion as to plaintiff's retaliation claim, and otherwise affirmed, without costs.

In this action alleging discrimination based on sexual orientation, plaintiff is a lesbian and has been employed as a school aide by defendantDepartment of Education(DOE) since May 2001.During the 2004/2005 school year, plaintiff was assigned to P.S. 181, in Brooklyn, where defendant Coleman was principal.According to plaintiff, Coleman repeatedly made derogatory remarks regarding gays and lesbians in front of plaintiff, the students and the teachers.Plaintiff stated that Coleman had commented that “two men should not be behind closed doors,”“whatever two men is [ sic ] doing behind closed door[s], God would judge them for himself.”Plaintiff also stated that Coleman had said that “his church can change people like us for the better” and, while acting out an obscene walk, “this is how faggots walk.”On another occasion, Coleman allegedly admonished students for using the word “lesbian.”Plaintiff claimed that she complained about certain staff members who had teased her, taunted her with notes in her locker and made lewd comments to her.

In March 2005, plaintiff was advised that she was being suspended without pay pending an investigation by defendant DOE's Office of Special Investigation(OSI) regarding an allegation of sexual misconduct pertaining to an incident which occurred on or about February 11, 2005 involving two coworkers at P.S. 181, a college student, age 18, and a DOE student, age 16.Plaintiff allegedly asked the DOE student to “hook her up” with the college student.When the DOE student refused and advised plaintiff to “leave it alone,”plaintiff allegedly persisted and contacted the college student directly.Her alleged attempts to establish a personal relationship were purportedly rejected.Plaintiff denies the incident occurred.

Thereafter, plaintiff allegedly complained about Coleman's conduct to various DOE offices to no avail.In late June 2005, plaintiff again met with Coleman and was allegedly “berated, belittled and reprimanded” for complaining about his treatment of her.Plaintiff was then advised that, an investigation by OSI had substantiated the allegations of misconduct and recommended termination of her employment, and that Coleman had decided to terminate plaintiff's employment.

Plaintiff filed a grievance with the DOE challenging her termination and was reinstated with back pay, less two weeks, and a letter placed in her file warning her not to engage in inappropriate conduct or conversation with any DOE student.Thereafter, plaintiff commenced the instant action alleging claims for discrimination and retaliation under the New York State and New York City Human Rights Laws.

Defendants' argument that the claims are precluded by the doctrine of collateral estoppel based on implicit findings by the DOE is improperly raised for the first time on appeal ( seeGavin v. Catron,35 A.D.3d 354, 824 N.Y.S.2d 733[2006] ).In any event, the argument is without merit.The record shows that plaintiff did not have a full and fair opportunity to litigate her claims of discrimination in the grievance process.Indeed, her testimony suggests that she had little involvement in the proceedings.Thus, the record does not allow us to conclude that the facts asserted were “adequately tested, and that the issue was fully aired”( Jeffreys v. Griffin,1 N.Y.3d 34, 40–41, 769 N.Y.S.2d 184, 801 N.E.2d 404[2003][internal quotation marks omitted] ).Here, the record merely reflects plaintiff's request for a review by the Grievance Panel, and the panel's subsequent decision.Moreover, plaintiff did not have an opportunity to appeal the grievance decision, as it was the Union's decision whether to proceed further ( cf.Hickey v. Hempstead Union Free School Dist.,36 A.D.3d 760, 829 N.Y.S.2d 163[2007] ).

Plaintiff's testimony regarding Coleman's repeated derogatory remarks regarding gays and lesbians was sufficient to raise a question of fact as to plaintiff's claim alleging unlawful discriminatory practices under the New York City Human Rights Law(Administrative Code of City ofN.Y. § 8–101;§ 8–107[13][a] and [b] ), the uniquely broad and remedial provisions of which are liberally construed to provide expansive protections not afforded by their state and federal counterparts ( Williams v. New York City Hous. Auth.,61 A.D.3d 62, 66, 872 N.Y.S.2d 27[2009], lv. denied13 N.Y.3d 702, 2009 WL 2622097[2009];Administrative Code § 8–130).This Court has made clear that where a plaintiff“responds with some evidence that at least one of the reasons proffered by defendant is false, misleading or incomplete, a host of determinations properly made only by a jury come into play, and thus such evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied ”( Bennett v. Health Mgmt. Sys., Inc.,92 A.D.3d 29, 936 N.Y.S.2d 112[2011][emphasis added] ).

Moreover, in light of plaintiff's testimony regarding Coleman's comments and conduct, the record did not conclusively establish that defendants would have made the same decision to terminate plaintiff's employment had they not considered plaintiff's sexual orientation.Thus, there being triable issues of fact, summary judgment was precluded insofar as the complaint alleged unlawful discrimination under the New York State Human Rights Law(Executive Law § 296[1][a];seeMcKennon v. Nashville Banner Publ. Co.,513 U.S. 352, 360, 115 S.Ct. 879, 130 L.Ed.2d 852[1995];Chertkova v. Connecticut Gen. Life Ins. Co.,92 F.3d 81, 91[2d Cir.1996] ).

Regarding plaintiff's claim of retaliation, to the extent the claim is based upon the New York City Human Rights Law(Administrative Code § 8–107 [7] ), summary judgment is precluded by triable issues of fact as to whether, within the context of this matter and the workplace realities as demonstrated by the record, plaintiff's termination from employment would be reasonably likely to deter other persons in defendants' employ from engaging in protected activity ( seeWilliams,61 A.D.3d at 70–71, 872 N.Y.S.2d 27).

To the extent the claim is based upon the New York State Human Rights Law(Executive Law § 296[1][e] ), summary judgment is precluded by triable issues of fact as to whether, in response to plaintiff's prima facie showing that her termination was the direct result of retaliatory animus, defendants offered a pretextual explanation ( seeSukram v. Anjost Corp.,72 A.D.3d 491, 897 N.Y.S.2d 714[2010];Pace v. Ogden Servs. Corp.,257 A.D.2d 101, 104–05, 692 N.Y.S.2d 220[1999];Gordon v. New York City Bd. of Educ.,232 F.3d 111, 117[2d Cir.2000] ).

We have considered the parties' remaining arguments and find them unavailing.

All concur except SAXE and CATTERSON, JJ. who dissent in a memorandum by CATTERSON, J. as follows:

CATTERSON, J. (dissenting).

I must respectfully dissent.The plaintiff school aide did not challenge a grievance decision which concluded that she had engaged in inappropriate conduct with a 16–year–old female student, yet now argues that her termination was based on her sexual orientation and so was discriminatory and retaliatory.In my opinion, the plaintiff's attempt to inoculate herself against the consequences of her inappropriate conduct must be rejected: as set forth more fully below, well-established precedent upholds termination of educators for sexually inappropriate behavior towards a student—regardless of their sexual orientation.

In focusing on the principal's alleged derogatory remarks, the majority gives no weight to the fact that the misconduct charges against the plaintiff were investigated and substantiated by the New York City Department of Education(hereinafter referred to as “DOE”), and that the DOE then recommended that the principal terminate plaintiff.Regardless of any remarks made by the principal, it was the plaintiff's burden to “respond[ ] with some evidence that at least one of the reasons proffered by defendant is false, misleading or incomplete,” and the plaintiff entirely failed to do so.The substantiated charges were affirmed by the DOE at the conclusion of her appeal, and she failed to challenge them.

The record reflects the following: The plaintiff, a lesbian, is an employee of the DOE working as a school aide in a Brooklyn public school.The plaintiff also worked at an after-school program at the public school operated by a private not-for-profit corporation.

On February 10, 2005, a 16–year–old student employee and an 18–year–old coworker complained to the defendant principal of the public school where the plaintiff worked that plaintiff had engaged in inappropriate behavior.In written statements, they explained that the plaintiff called the student on a classroom telephone and asked the student to “hook her up” with the coworker....