Opinion
104190/06.
Decided February 9, 2010.
Colleen M. Meenan, Meenan Associates, LLC, New York, NY, For the plaintiff.
Michael A. Cardozo, Corporation Counsel of the City of New York, Daniel Chiu, Assistant Corporation Counsel, New York, NY, For the defendants.
Plaintiff commenced the instant action against defendants asserting a claim for discrimination on the basis of sexual orientation and a defamation claim. Plaintiff's causes of action were dismissed against the Research Foundation and Paul Shorter on May 29, 2008. The remaining defendants, the New York City Department of Education ("DOE") and Lowell R. Coleman, now move for summary judgment dismissing plaintiff's claims. Plaintiff also requests sanctions for spoliation of evidence. For the reasons set forth below, defendants' motion is granted in part and denied in part and plaintiff's request for sanctions is denied.
The relevant facts are as follows. At the time of the alleged incidents, plaintiff was a school aide at P.S. 181 in Brooklyn employed by the DOE. She also worked at an after-school program at P.S. 181 run by the Research Foundation. Plaintiff is a lesbian. On February 10, 2005, plaintiff allegedly told Minerva Riche, a sixteen-year old DOE student who worked at the after-school program that she wanted to take her out on a date but that she was too young for her, and instead asked Ms. Riche to "hook her up" with Alexandra Cadle, an 18-year-old community college student and another employee at the after-school program. Ms. Riche reported back to plaintiff that Ms. Cadle was not interested. Plaintiff then allegedly contacted Ms. Cadle directly, who also told plaintiff she was not interested. Ms. Cadle then told Coleman, the principal of P.S. 181, about the incident. Ms. Cadle testified that she did not think Coleman would take the incident so seriously and told him not to report it, but he said it was his duty as principal to do so. He then reported the alleged incident to the Office of Special Investigations ("OSI").
On March 11, 2005, plaintiff was suspended without pay pending an investigation of the allegations. OSI investigated the allegations, which it termed corporal punishment/inappropriate conduct, found that they were substantiated and, in a memo dated June 20, 2005 stated that plaintiff's employment "should" be terminated. An undated Memo Notification (which plaintiff seems to identify as being dated September 22, 2005) confirmed that the allegations had been substantiated but stated that "the principal/supervisor is ultimately responsible for either accepting or rejecting the findings and conclusions in substantiated matters." On June 22, 2005, Coleman terminated plaintiff, effective June 20, 2005. On August 3, 2005, pursuant to the OSI memo, he requested she be placed on the DOE's "Invalid Inquiry List" which barred her from employment with the DOE. After plaintiff was terminated, she submitted a grievance through her union. In the Grievance Decision, dated September 15, 2006, the DOE concluded that plaintiff acted inappropriately but that her conduct did not warrant discharge. The DOE reinstated plaintiff with back pay, less two weeks, and submitted a warning letter to her file. Plaintiff is currently employed by the DOE and works at P.S. 167. She returned to work in September 2007.
Plaintiff denies that she ever asked Ms. Cadle out or that she had Ms. Riche do so on her behalf, although she acknowledges that she told Ms. Cadle she was attractive and had her life together. She claims she then apologized to Ms. Cadle for making her uncomfortable. Plaintiff testified that Coleman never asked her about her side of the story and that OSI never interviewed her about the incident, which the investigator denies.
Plaintiff testified that Coleman repeatedly made derogatory comments about gays and lesbians in front of her, students, and other employees, taunted her because of her sexual orientation and made it publicly clear that, because of his personal and religious beliefs, he believed that gays and lesbians were engaging in immoral behavior. She stated that she reported these comments to her supervisor, Theresa Marsch, and later, to the OSI investigator during the investigation, but that they were never investigated further. She also testified that at the June 2005 meeting at which she was terminated, Coleman chastised her for making complaints about him. In addition, plaintiff testified that Ms. Riche and other staffers made anti-gay comments to her and that she reported these comments to then-principal Dolores Theobald and Paul Shorter, the director of the after-school program.
Plaintiff brings her claims under the New York City Human Rights Law. In 2005, the New York City Council enacted the Local Civil Rights Restoration Act, which specifically stated that "the provisions of New York City's Human Rights Law are to be construed independently from similar or identical provision of New York state or federal statutes." The Council went on to say that those provisions should be viewed as "a floor below which the City's Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise." In Williams v New York City Housing Authority, the First Department addressed discrimination and retaliation claims in light of the Restoration Act, emphasizing that the City HRL must be construed more broadly than analogous state or federal laws. 61 AD3d 62 (1st Dept 2009).
A plaintiff may choose to proceed under either a "mixed motives" analysis or a "pretext" framework or under both. See Raskin v The Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997). As plaintiff in this case argues her claims under both standards, the court will address each in turn.
Under a mixed motives framework, plaintiff must establish that a prohibited discriminatory factor was a motivating or substantial factor in the challenged employment decisions. See Raskin, 125 F.3d at 60 (2d Cir. 1997). If plaintiff does so, "the burden shifts to the employer to prove by a preponderance of the evidence that it would have made the same decision anyway." Id. A plaintiff may meet her initial burden in a mixed motives case by showing "evidence of statements or actions by decisionmakers that may be viewed as directly reflecting the alleged discriminatory attitude.'" Id. at 60-61 (citations omitted). Such statements can constitute the "smoking gun' or at least a thick cloud of smoke'" required to make out a prima facie case under a mixed motives analysis. See id. (citations omitted). In a mixed motives case, the plaintiff's initial burden is heavier than that required to make out a prima facie case under the pretext analysis. See Raskin, 125 F.3d at 60.
Plaintiff makes out a prima facie case under the mixed motives framework. Her testimony that Coleman repeatedly made derogatory comments about gays and lesbians and taunted her because of her sexual orientation is sufficient to meet the heavier burden set out by the mixed motives framework. See id. In fact, this testimony is precisely the "smoking gun" required to make out a prima facie case under the mixed motives framework. See id.
Defendants are unable to meet their burden under the mixed motives analysis to prove that they would have made the same decision had they not considered plaintiff's sexual orientation. Whether they would have done so is a question of fact that cannot be determined as a matter of law on a summary judgment motion. Accordingly, defendants are not entitled to summary judgment dismissing her discrimination claim.
Although the court need not reach the issue, the court now analyzes plaintiff's claim under the pretext framework since plaintiff does argue her claim using this framework as well. This standard requires plaintiff to demonstrate (1) membership in a protected class, (2) qualification for the employment, (3) an adverse employment action and (4) circumstances that give rise to an inference of discrimination. See McDonnell Douglas Corp. v Green, 411 U.S. 792, 802 (1973). If the plaintiff establishes her prima facie case using this analysis, the burden then shifts to defendant to articulate a legitimate, non-discriminatory reason for the challenged action. See id. at 802-04. If the defendant does so, the burden shifts back to plaintiff to show that defendant's stated reason was merely a pretext for discrimination. See id.
Defendants are not entitled to summary judgment under this framework either. The first two elements of the pretext analysis, membership in a protected class and qualification for employment, are not at issue here. The court therefore turns to whether plaintiff experienced an "adverse employment action." In order to constitute an adverse employment action on a discrimination (but not a retaliation) claim, the federal courts have required a "materially adverse change" in the terms and conditions of employment, including, but not limited to, termination, demotion, material loss of benefits or a significant diminution of responsibilities. See Galabya v NYC Board of Education, 202 F.3d 636, 640 (2d Cir. 2000) (citations omitted). While the courts are split as to whether a termination followed by reinstatement with full back pay, or suspension without pay that is subsequently reimbursed, constitutes an adverse employment action ( see DuBois v Brookdale University Hospital and Medical Center, 29 AD3d 731 (2nd Dept 2006) (termination did not constitute adverse employment action when plaintiff was subsequently reinstated with full back pay); Amna v Montefiore Medical Center, 189 F.3d 460 (2d Cir. 1999) (same); Washington v County of Rockland, 211 F.Supp.2d 507, 514 (S.D.NY 2002) (same); but see Lovejoy-Wilson v Noco Motor Fuel, 263 F.3d 208, 223-24 (2d Cir. 2001) (suspension without pay is an adverse employment action even when pay is eventually reimbursed because plaintiff suffers loss of use of his wages for a period of time); Cunningham v Consolidated Edison Inc., 2006 WL 842914 (E.D.NY March 28, 2006) (same)), it is well-settled that a suspension without pay or termination followed by reinstatement that does not include reimbursement of lost wages does constitute an adverse employment action. See McPhatter v New York City, 2009 WL 2412980 at *5 (E.D.NY July 30, 2009) ("Suspension without pay is, indeed, ordinarily an adverse employment action.") (citations omitted); see also Cronin v St. Lawrence, 2009 WL 2391861 at *4 (S.D.NY Aug. 5, 2009); Bush v Fordham University, 452 F.Supp.2d 394, 416 (S.D.NY 2006). The courts are also divided on whether and when disciplinary letters may constitute adverse employment actions. Some courts have held that written warnings alone may constitute adverse employment actions, ( see Little v Nat'l Broadcasting Co., 210 F.Supp.2d 330, 387 (S.D.NY 2002)), while others have held that they only constitute an adverse employment action if they lead to a change in the terms and conditions of employment, such as termination or demotion ( see Weeks v NYS Div. of Parole, 273 F.3d 76, 86 (2d Cir. 2001)); Perez v The New York and Presbyterian Hospital, 2009 WL 3634038 (S.D.NY 2009) (same)).
Plaintiff has established that she suffered an adverse employment action. Although she was ultimately reinstated after her termination, she was not reimbursed her full back pay but rather lost two weeks of wages. In addition, a warning letter was put in her employment file. These actions clearly constitute an adverse employment action, particularly under the expansive interpretation of the City HRL mandated by the Restoration Act.
The court now turns to the last element of a prima facie case under thepretext framework, circumstances that give rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802. Such circumstances include "actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus" and "preferential treatment given to employees outside the protected class." Chertkova v Conn. Gen. Life Ins. Co., 92 F.3d 81 (2d Cir 1996). In the instant case, plaintiff's testimony that Coleman repeatedly made comments evincing a discriminatory attitude toward gays and lesbians is sufficient to give rise to an inference of discrimination. Because the principal's remarks clearly reflect a discriminatory animus, the court need not reach plaintiff's arguments that the other employees were treated differently and that this differential treatment gives rise to an inference of discrimination.
Since plaintiff has established her prima facie case under the pretext framework, the burden now shifts to defendants to articulate a non-discriminatory reason for their actions. The court finds that defendants have met this burden. Coleman states that the allegations regarding plaintiff's conduct with respect to Ms. Riche and Ms. Cadle, if substantiated, constituted sexual misconduct and that he had a duty to report these allegations, whether Ms. Cadle wanted to make a formal complaint or not. He reported the allegations to OSI, which conducted an investigation, substantiated them, and recommended termination. Coleman then terminated plaintiff pursuant to that recommendation. This is sufficient to meet defendants' burden.
Under the pretext analysis, plaintiff must now show that defendants' non-discriminatory reason for their action is merely a pretext. "To meet this burden, the plaintiff may rely on evidence presented to establish his prima facie case as well as additional evidence." Hamilton v City of New York, 2009 WL 2973007 at *9-10 (S.D.NY Sept. 18, 2009). In order to meet this burden, the plaintiff must produce sufficient evidence to support a rational jury verdict in his favor. Van Zant v KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996). While plaintiff's prima facie case plus evidence of pretext may not necessarily support a jury verdict in his favor, there are times when it may. See James v New York Racing Association, 233 F.3d 149, 154-55 (2d Cir. 2000). A case-by-case analysis is required. See id.
In the instant case, plaintiff has produced sufficient evidence to support a rational jury verdict in her favor. Van Zant v KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996). Here, plaintiff's prima facie case, along with evidence of her supervisor's anti-gay, anti-lesbian statements and beliefs is sufficient for this case to reach the jury. Plaintiff's testimony that Coleman openly and repeatedly made anti-gay and anti-lesbian remarks and taunted her because of her sexual orientation is sufficient, if found credible by a jury, to support a jury finding that plaintiff was terminated because of her sexual orientation and not for any legitimate reasons. Accordingly, under the pretext analysis, defendants' motion for summary judgment must be denied as well.
Plaintiff also alleges that her termination was in retaliation for her complaints about Coleman's discriminatory remarks. In order to make out a prima facie case of retaliation under the City HRL, plaintiff must prove that (1) she engaged in a "protected activity" (that is, opposed or complained about unlawful discrimination); (2) the protected activity was known to defendant; (3) defendant took an adverse employment action and; (4) there is a causal connection between the protected activity and the adverse employment action. See Forrest v Jewish Guild for the Blind , 3 NY3d 295 (2004). If plaintiff makes out a prime face case, the burden shifts to defendant to show that it had legitimate, non-retaliatory reasons for the adverse employment action. See Williams v The City of New York , 38 AD3d 238 (1st Dept 2007). The burden then shifts back to the plaintiff to show that the non-retaliatory reasons were pretextual. See id.
Plaintiff fails to make out a prima facie case of retaliation. Although she submits sufficient evidence that she complained about Coleman, that he knew about such complaints, and that an adverse employment action was taken against her, she does not adduce any evidence that she was terminated because of her complaints. Instead, the evidence shows that plaintiff was either terminated because of her sexual orientation or because of the incident involving Ms. Riche and Ms. Cadle. Plaintiff fails to sufficiently establish a causal connection between her complaints and her termination.
The court now turns to plaintiff's claim for libel. As an initial matter, plaintiff's libel claim is not barred by the statute of limitations. Libel claims against municipal defendants "are governed by the one-year and ninety day statute of limitations set forth in General Municipal Law Section 50-i, which takes precedence over the one-year period of limitations provided for in CPLR 215'" which otherwise governs libel claims. Wright v City of Newburgh, 259 AD2d 485, 486 (2nd Dept 1999) (applying 50-i statute of limitation to a cause of action for malicious prosecution). Therefore, to the extent that plaintiff's claims are based on letters dated March 11, 2005 and March 15, 2005 and she commenced this action on March 28, 2006, more than one year but less than one year and ninety days after those dates, those claims are timely. Libel claims based on the undated Memo Notification which was apparently issued sometime between June 20, 2005 and September 22, 2005 and the placement of plaintiff's name on a DOE "Invalid Inquiry List" in August 2005 are also timely.
The elements of libel are a "false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se." Dillon v City of New York, 261 AD2d 34, 37-38 (1st Dept 1999). In order to state a cause of action for libel, "the particular words complained of" must be "set forth in the complaint." Id.
In the instant case, plaintiff fails to establish a prima facie claim for libel. In her complaint, plaintiff only cites to the "September 22, 2005 Memo Notification" from Thomas Hyland, Deputy Director of the DOE to Coleman and to the placement of her name on the DOE Invalid Inquiry List. As an initial matter, a claim for libel can only be asserted against the person who spoke or wrote the allegedly libelous or defamatory words. However, plaintiff does not assert any claims against Mr. Hyland, the author of the memo. As to the placement of her name on the DOE Invalid Inquiry List, no specific words are cited as defamatory. Moreover, any statement in the memo or the request that plaintiff be placed on the Invalid Inquiry List is subject to a qualified privilege. See Phelan v Huntington Tri-Village Little League, Inc. , 57 AD3d 503 , 504-05 (2nd Dept 2008) (where both parties privy to the communication have an interest in the subject of that communication and that communication was made in good faith, it is protected by a qualified privilege). Finally, plaintiff also fails to make the required showing that she sustained special damages, as required for a libel cause of action. See Matherson v Marchello, 100 AD2d 233 (2nd Dept 1984). Special damages "consist of the loss of something having economic or pecuniary value' which must flow directly from the injury to reputation caused by the defamation . . ." See id.; see also Ferraro v Seamen's Church Inst. of New York and New Jersey, 18 Misc 3d 1108(A) (NY Sup. 2007). Plaintiff fails to plead any economic damages resulting from the libel alleged in her complaint and therefore she fails to make out a prima facie case for libel.
To the extent that plaintiff is claiming that the March 11, 2005 and March 15, 2005 letters are libelous, she is unable to make out a prima facie case because these words are not set out in plaintiff's complaint. Moreover, the letters do not contain false statements. Both letters merely state that allegations of sexual misconduct were being investigated, which was true. In addition, these letters are protected by the qualified privilege described above. See Phelan, 57 AD3d at 504-05.
Finally, the court addresses plaintiff's request for sanctions for spoliation. Plaintiff failed to make this request by a notice of cross-motion and, instead, only mentions the request in her papers. Accordingly, her request for sanctions is denied.
Accordingly, defendant's motion for summary judgment is granted in part and denied in part. Plaintiff's claims for retaliation and libel are dismissed. Plaintiff's request for sanctions for spoliation is denied. This constitutes the decision and order of the court.