Opinion
Index No. 60352/2021
12-07-2023
Wilkin Santana, Plaintiff, v. Yonkers City School District, and EDWARD DECHENT, individually, Defendants.
FOR PLAINTIFF ERICA BRANT, ESQ. PHILLIPS & ASSOCIATES, ATTORNEYS AT LAW, PLLC FOR DEFENDANTS WILLIAM V. COLEMAN, ESQ. ABRAMS FENSTERMAN, LLP
FOR PLAINTIFF ERICA BRANT, ESQ. PHILLIPS & ASSOCIATES, ATTORNEYS AT LAW, PLLC
FOR DEFENDANTS WILLIAM V. COLEMAN, ESQ. ABRAMS FENSTERMAN, LLP
Damaris E. Torrent, J.
The following papers were read on the motion by defendants for an order pursuant to CPLR 3212 granting summary judgment and dismissing the complaint, and for such other and further relief as this Court deems just and proper.
PAPERS NUMBERED
Amended Notice of Motion / Coleman Affirmation in Support / Exhibits /
Quezada Affidavit / Exhibits / DeChent Affidavit / Exhibits / Statement of Material Facts / Memorandum of Law in Support 1-31
Memorandum of Law in Opposition / Brant Affirmation in Opposition / Exhibits 32-56
Memorandum of Law in Reply 57
Plaintiff asserts claims against all defendants for employment discrimination and unlawful retaliation in violation of the New York State Human Rights Law (Executive Law § 290 et seq). Plaintiff, a nontenured Afro-Latino teacher, alleges that following his complaint of discrimination based on race, defendants retaliated in not offering him a renewed contract to teach Spanish at Roosevelt High School (Defendants' Exhibit A, p. 1-2). It is alleged that defendant Edward DeChent was the principal at Roosevelt High School. Plaintiff asserts an additional cause of action against Mr. DeChent for aiding and abetting discriminatory conduct (Id. at 14-15). It is alleged that in response to plaintiff's complaint of discrimination, Mr. DeChent disregarded the complaint, failed to investigate the complaint, and began a campaign of retaliation against plaintiff. Plaintiff alleges that Mr. DeChent began to observe and directed others to observe plaintiff's classroom with greater frequency with the intent of documenting support for a retaliatory termination. It is alleged that plaintiff was subjected to critical performance evaluations, which were authored in retaliation (Defendants' Exhibit A, p. 8, 9). Plaintiff seeks compensatory and punitive damages, as well as a declaratory judgment declaring that defendants engaged in unlawful employment practices (id. at 16).
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985][internal citations omitted]). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidence in admissible form sufficient to establish the existence of a triable issue of fact (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]). The evidence must be viewed in a light most favorable to the nonmoving party and it should be given the benefit of all favorable inferences (Gonzalez v. Metropolitan Life Ins. Co., 269 A.D.2d 495 [2d Dept 2000]). "A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Ruiz v. Griffin, 71 A.D.3d 1112, 1115 [2d Dept 2020][internal quotations and citation omitted]).
New York State Human Rights Law provides that it is unlawful for an employer to discriminate against an individual on the basis of race, and it is unlawful to retaliate against an employee for opposing discriminatory practices (Executive Law § 296[1][a] and [7]). To establish a prima facie case of discrimination in employment, a plaintiff must plead and prove that he is a member of a protected class; he was qualified to hold the position; he was actively or constructively discharged; and the discharge occurred under circumstances giving rise to an inference of discrimination (Averbeck v. Culinary Inst. of Am., 180 A.D.3d 862 [2d Dept 2020]; Chiara v. Town of New Castle, 126 A.D.3d 111 [2d Dept 2015]). To establish a prima facie case of retaliation under Executive Law § 296, a plaintiff must demonstrate that he was engaged in a protected activity; the claimant's employer was aware that he participated in such activity; plaintiff suffered an adverse employment action based upon this activity; and there was a causal connection between the protected activity and the adverse action (Adeniran v. State of New York, 106 A.D.3d 844 [2d Dept 2013]). A probationary employee may be dismissed for almost any reason or for no reason at all, as long the dismissal is not in bad faith, for a constitutionally impermissible or illegal purpose, or in violation of statutory or decisional law (Matter of Gagedeen v. Ponte, 170 A.D.3d 1013 [2d Dept 2019]).
Yonkers City School District
To establish entitlement to summary judgment dismissing a cause of action for discrimination or retaliation, "the defendant must demonstrate that the plaintiff cannot make out a prima facie claim or, having offered legitimate, nondiscriminatory, or nonretaliatory reasons for the challenged actions, the absence of a material issue of fact as to whether the explanations were pretextual" (Ellison v. Chartis Claims, Inc., 178 A.D.3d 665, 667 [2d Dept 2019]; see also Nelson v. HSBC Bank USA, 41 A.D.3d 445 [2d Dept 2007]). A plaintiff may defeat a motion for summary judgment by raising a triable issue of fact "as to whether the reasons proffered by defendant were merely a pretext for discrimination or retaliation" (Ellison, 178 A.D.3d at 667-668).
In support of the motion, Yonkers City School District submits, inter alia, pleadings, party deposition transcripts, an affidavit by Principal Edward DeChent, and an affidavit by Superintendent Dr. Edwin Quezada. Dr. Quezada states that on June 30, 2017 he made an offer to plaintiff for a four year probationary period of employment commencing on September 5, 2017 (Plaintiff's Exhibit Y). Defendants submit a January 15, 2020 email from plaintiff to Mr. DeChent stating the basketball coach told him off in front of a student and he requested a meeting (Defendants' Exhibit Q). Plaintiff testified that in January 2020 a teacher and coach, Mr. Dawson, entered plaintiff's classroom, and berated him and shouted at him in front of his students (Defendants' Exhibit D, p. 52-54; Defendants' Exhibit E, p. 39-40, 42). Plaintiff testified that in a meeting after this incident, he told the principal that Mr. Dawson discriminated against him, harassed him, and threatened to get him fired. Plaintiff testified that up to that point his evaluations were great, he had effective ratings and an impeccable record in Yorkers Public Schools (Defendants' Exhibit D, p. 55, 56; Defendants' Exhibit E, p. 48). Plaintiff testified that in the meeting, the principal did not address the discrimination complaint and stated both teachers were wrong. Plaintiff stated that this would not have happened if he had been a white teacher. Plaintiff testified the principal started harassing and retaliating against him, and his evaluations went "from great to getting a memo" (Defendants' Exhibit D, p. 57-58; Defendants' Exhibit E, p. 49).
Plaintiff submits observation and evaluation sheets from January 2017 through November 2019, which show he was rated as effective and highly effective during this time period (Plaintiff's Exhibit 4).
Yonkers City School District submits documentation related to meetings held between January 15, 2020 and March 3, 2020, noting plaintiff's negative interactions with students, parents and staff (Defendants' Exhibits O, P, R, S, T, U, V). On May 21, 2020, Mr. DeChent issued a probationary teacher review report stating he did not recommend plaintiff for continued employment and outlining the reasons, including that plaintiff exhibited difficulty in his relationships with students, parents and staff (Defendants' Exhibit M, p. 3). In a letter dated July 1, 2020, Dr. Quezada notified plaintiff that he would be recommending that his employment be terminated effective October 16, 2020, and the board of education would act on the recommendation at a September 16, 2020 meeting (Defendants' Exhibit I). Defendants submit a letter from plaintiff to Dr. Quezada, dated July 17, 2020, requesting a hearing and designating a union representative (Defendants' Exhibit J). On or about July 26, 2020, plaintiff notified the district that he resigned.
On August 6, 2020, Dr. Quezada responded to a letter from Yonkers Federation of Teachers on behalf of Mr. Santana, providing the reasons for recommending termination, including culturally insensitive remarks to students and parents, inflexible responses to student/family requests to review grades and student work, classroom management issues noted on observations, arguing with a colleague in front of students, and an extensive list of students requesting to drop/transfer from his class (Defendants' Exhibit L). Dr. Quezada's affidavit states that the recommendation for termination was in accordance with Education Law § 2573, which provides that teachers shall be appointed for a four year probationary period and the services of any person appointed to a probationary period may be discontinued at any time on recommendation of the superintendent and by a majority vote of the board of education. Dr. Quezada states that all actions by the district and its employees were taken for legitimate non-discriminatory and non-retaliatory reasons (Quezada Affidavit, p. 3-4).
As to plaintiff's first cause of action for discrimination under Executive Law § 296(1), Yonkers City School District contends that plaintiff cannot establish an inference of discrimination, arguing plaintiff's claims are speculative and unsupported by admissible evidence (Memorandum of Law in Support, p. 23). Contrary to this contention, plaintiff's testimony provides factual specificity as to his complaint of discrimination and the alleged adverse employment action. Plaintiff testified that following his complaint of discrimination, the principal went into his classroom almost ten times to intimidate him and make him feel that he was being watched. He testified it was unheard of for a principal to go into a teacher's classroom almost ten times (Defendants' Exhibit D, p. 115-116, 118). Plaintiff testified that the principal and assistant principal made appointments with parents on his behalf without letting him know, which did not happen to his white colleagues (Id. at 122-123). Plaintiff testified that students were transferred out of his class without letting him know, and the assistant principal was entertaining complaints from students without giving him an opportunity to be present, neither of which happened to white teachers (Id. at 125-126). Plaintiff's testimony raises a triable issue of fact as to whether he can establish an inference of discrimination.
Yonkers City School District argues that plaintiff cannot establish a prima facie case of discrimination because he was not discharged. Plaintiff resigned before a hearing, before the board acted on the superintendent's recommendation, and before the effective termination date (Memorandum of Law in Support, p. 22-23). Plaintiff argues he was effectively discharged. He argues that if he waited for the meeting and a determination by the board of education in September 2020, it would have significantly limited him in obtaining employment in his field elsewhere prior to the start of the next school year (Defendants' Exhibit A, p. 12).
An employee is constructively discharged when an employer, instead of directly discharging the employee, deliberately creates working conditions "so intolerable that a reasonable person in plaintiff's position would have felt compelled to resign" (Golston-Green v. City of New York, 184 A.D.3d 24, 44 [2d Dept 2020]; see also Bond v. New York City Health & Hosps. Corp., 215 A.D.3d 469 [1st Dept 2023]). The analysis requires consideration of the cumulative effect of defendant's conduct and a determination as to whether, based on the totality of the circumstances, the defendant created working conditions so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign (Lambert v. Macy's E., Inc., 34 Misc.3d 1228 [A], 2010 NY Slip Op 52434[U] (Sup Ct, Kings County 2010). Here, plaintiff's testimony indicates that following his complaint of discrimination, he was allegedly subjected to increased scrutiny and harassment, which his white colleagues did not experience. Dr. Quezada's July 1, 2020 letter notified plaintiff that Dr. Quezada would recommend plaintiff be terminated and indicated the board of education would act on this recommendation after the start of the next school year (Defendants' Exhibit I). Plaintiff's testimony together with Dr. Quezada's letter raise a triable issue of fact as to whether plaintiff was constructively discharged.
As to plaintiff's second cause of action, Yonkers City School District fails to demonstrate, prima facie, that plaintiff cannot make out a claim of retaliation under Executive Law § 296. Plaintiff alleges that following his complaint of discrimination, he was subjected to a hostile work environment. Plaintiff alleges that as compared to similarly situated employees, he was not treated well on the basis of his race (Memorandum of Law in Opposition, p. 18). Previously, to establish a prima facie case of a hostile work environment, a plaintiff had to demonstrate that the workplace was permeated with discriminatory intimidation, ridicule and insult that was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment (Golston-Green, 184 A.D.3d at 41). In 2019, the New York State Human Rights Law was amended to state that harassment is actionable "regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims. Such harassment is an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual's membership in one or more of these protected categories" (Executive Law § 296[1][h]). The amendment applies here because plaintiff's claims accrued after the amendment's effective date of October 11, 2019 (see Executive Law § 296[1][h], as added by L 2019, ch 160, § 16[b], [d]; Golston-Green, 184 A.D.3d at 41 n 3).
Plaintiff's testimony indicates that following his complaint of discrimination, he was allegedly subjected to increased scrutiny and harassment. Plaintiff's testified that the principal repeatedly went into his classroom to intimidate him, students were transferred out of his class without letting him know, and the assistant principal entertained complaints from students without giving him an opportunity to be present. He testified that his white colleagues did not have these experiences (Defendants' Exhibit D, p. 115-116, 118, 122-123, 125-126). Approximately six months after plaintiff complained of discrimination, Dr. Quezada issued the letter notifying plaintiff he would recommend plaintiff be terminated (Defendants' Exhibit I). Where the alleged adverse action occurs six months after the protected activity, it cannot be determined as a matter of law that there is no causal connection between the two (see Matter of Copiague Union Free Sch. Dist. v. Foster, 185 A.D.3d 1023 [2d Dept 2020]; cf. Averbeck, 180 A.D.3d at 862). Plaintiff's testimony raises a triable issue of fact as to whether he was subjected to inferior terms and conditions of employment because of his race (see Executive Law § 296[1][h]).
Viewing the evidence in a light most favorable to plaintiff and affording him the benefit of every favorable inference, Yonkers City School District fails to demonstrate that plaintiff cannot make out prima facie claims of discrimination and retaliation under Executive Law § 296. Although Yonkers City School District offers legitimate, nonretaliatory reasons for recommending that plaintiff be discharged, plaintiff's testimony raises a triable issue of fact as to whether the documented reasons for the adverse action were merely pretextual and whether the adverse action was motivated, at least in part, by discrimination (see Chiara, 126 A.D.3d at 111 [2d Dept 2015]; Nelson, 41 A.D.3d at 445). Yonkers City School District's failure to make a prima facie showing of entitlement of judgment as a matter of law requires a denial of the motion, regardless of the sufficiency of the opposition papers (see Chiara, 126 A.D.3d at 111).
Edward DeChent
Defendants argue that summary judgment should be granted in favor of Mr. DeChent. The second cause of action against Mr. DeChent alleges retaliation under Executive Law § 296(7), which states it is an unlawful discriminatory practice for any person to retaliate against an individual because he has filed a complaint. The third cause of action against Mr. DeChent alleges aiding and abetting discrimination under Executive Law § 296(6). Plaintiff alleges Mr. DeChent actively aided and abetted the employer, Yonkers City School District, in acts prohibited under Executive Law § 296. Under the circumstances alleged, it is the employer's participation in discrimination that "serves as the predicate for the imposition of liability on others for aiding and abetting" a discriminatory practice (Murphy v. ERA United Realty, 251 A.D.2d 469, 472 [2d Dept 1998]). Defendants contend that an individual cannot be held liable for aiding and abetting under Executive Law § 296(6). However, Executive Law § 296(6) and (7) both explicitly prohibit "any person" from engaging in a discriminatory practice (see Mitchell v. TAM Equities, Inc., 27 A.D.3d 703 [2d Dept 2006][imposing liability on individuals who aid and abet an employer in committing employment discrimination]).
Defendants, relying on Trovato v Air Express Intl., 238 A.D.2d 333 [2d Dept 1997], contend that a coemployee cannot be liable as an aider and abettor under Executive Law § 296(6). Defendants' reliance on Trovato is misplaced, as the Second Department in that case recognized that there are factual circumstances which support the aiding and abetting theory. In Murphy, the Second Department explained that the record in Trovato revealed that the coemployees did not join the employer in a course of alleged discriminatory conduct. The Second Department noted that the broad language in Trovato "should not be read to rule out a cause of action pursuant to Executive Law § 296(6) against a coemployee who is alleged to have actively aided and abetted the employer in [prohibited] acts" (251 A.D.2d at 472).
Viewing the evidence in a light most favorable to plaintiff and affording him the benefit of every favorable inference, defendants fail to demonstrate prima facie entitlement to judgment as a matter of law on the second and third causes of action against Mr. DeChent. Plaintiff's testimony raises triable issues of fact as to whether Mr. DeChent engaged in retaliation, and aided and abetted a discriminatory practice in response to plaintiff's complaint against Mr. Dawson (Defendants' Exhibit D, p. 115-116, 118, 122-123, 125-126). The branches of the motion seeking to dismiss the second and third causes of action as against Mr. DeChent are denied (see Murphy, 251 A.D.2d at 469; Steadman v. Sinclair, 223 A.D.2d 392 [1st Dept 1996]).
As principal of Roosevelt High School, Mr. DeChent was not an employer within the meaning of Executive Law § 292(5), and cannot be held personally liable for violation of Executive Law § 296(1). This statutory section specifically limits liability to employers and other specific entities (see Mitchell, 27 A.D.3d at 703). As such, plaintiff's first cause of action for discrimination under Executive Law § 296(1) is dismissed as against Mr. DeChent.
Accordingly, it is hereby
ORDERED that defendant Yonkers City School District's motion for summary judgment is denied; and it is further
ORDERED that the branch of the motion seeking summary judgment on behalf of defendant Edward DeChent is granted to the extent that the first cause of action is dismissed as against Mr. DeChent, and the motion is otherwise denied; and it is further
ORDERED that all parties are directed to appear in person for a Settlement Conference in Courtroom 1601 on January 11, 2024 at 11:30 a.m.; and it is further
ORDERED that within ten (10) days of the date hereof, plaintiff shall serve a copy of this Decision and Order with notice of entry upon all parties, and file proof of service on NYSCEF.
The foregoing constitutes the Decision and Order of the Court.