Denicolo v. Bd. of Educ. of N.Y.
Denicolo v. Bd. of Educ. of N.Y.
Opinion of the Court
The plaintiff, Anna Denicolo, brings this action against the Board of Education of the City of New York ("BOE") and four individual BOE employees: Unal Karakas, Xiomara Fernandez, Jeffrey Eason, and Desiree LaFontainein their individual and official capacities (collectively, "defendants"). The plaintiff alleges retaliation in violation of Title II of the Americans with Disabilities Act of 1990 ("ADA"), § 504 of the Rehabilitation Act of 1973 ("RA"), the New York State Human Rights Law ("NYSHRL"), the New York City Human Rights Law ("NYCHRL"), the First Amendment of the United States Constitution, and Article 1 § 8 of the New York State Constitution.
The defendants move to dismiss all of the plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). The defendants *209argue that the claims are barred by the doctrine of collateral estoppel and that the allegations otherwise fail to state a claim. The defendants also move to dismiss the plaintiff's RA and ADA claims against the individual defendants. For the reasons explained below, the defendants' motion is granted in part and denied in part.
I.
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp.,
A court may also consider documents incorporated by reference in the complaint as well as documents the plaintiff either had in the plaintiff's possession or had knowledge of and upon which the plaintiff relied in bringing suit. See Cortec Indus., Inc. v. Sum Holding L.P.,
II.
The following facts are taken from the plaintiff's Complaint and are accepted as true for the purposes of this motion to dismiss.
The plaintiff was a tenured school teacher who was a BOE employee for over twenty-five years. (Compl. ¶¶ 1, 8.) She was fired on August 15, 2016. (Id. ¶ 1.) Two years before her termination, on September 24, 2014, the plaintiff filed a complaint with the Office of Civil Rights for the United States Department of Education ("OCR").
*210Eleven days after the plaintiff's second refusal to mediate, on September 29, 2015, she began receiving letters of reprimand from her school. (Id. ¶ 42.) The letters alleged misconduct and unprofessional behavior for a variety of reasons, including neglect of her professional duties, unprofessional conduct, general misconduct, unsatisfactory lesson plans, and insubordination. (Id. ¶ 45.) Within a month of her decision not to mediate, she also received a negative performance evaluation. (Id. ¶ 45(d).) In her entire career, she had never before received a reprimand letter or a negative evaluation.
Approximately five months after receiving her first letter of reprimand, on February 18, 2016, the plaintiff received a letter from the BOE informing her that she was being brought up on disciplinary charges under New York State Education Law § 3020-a. (Id. ¶ 45(s).) The letter informed her that she was banned from all BOE schools during the pendency of the action. (Id. ) This letter came only a few days before OCR was scheduled to visit P.S. 195 to investigate the plaintiff's complaint. (Id. ¶ 48.) Because she was barred from the school, she was not present during OCR's investigation. (Id. )
The plaintiff's § 3020-a proceeding took place over four days in April 2016. (J.W. Reiter Decl. Ex. A, at 1 [hereinafter § 3020-a Opinion].) The charges brought against the plaintiff were all based on the plaintiff's interactions with one student and that student's family. (Id.; Compl. ¶ 45.) The allegations were: (1) the plaintiff failed to follow school protocol when the student would not enter the classroom and the plaintiff contacted a school aide to take care of the student; (2) the plaintiff repeatedly called the student's parent; (3) the plaintiff told the student's mother, "[y]our daughter has mental problems"; (4) the plaintiff spoke inappropriately to and antagonistically towards the student's mother; and (5) the plaintiff had her students write get well cards to the student and sent the letters and an application for home school instruction to the student's home. ( § 3020-a Opinion at 2-3.) These charges were based on only three of the sixteen reprimands the plaintiff received between 2014 and 2016. (See Compl. ¶ 45(c), (f), (p).) During the hearing, the plaintiff noted that she believed she had been targeted by the school because she had lodged complaints against it. ( § 3020-a Opinion at 11.) She argued that her complaints caused the administration to view her as a "meddler" and "someone who stuck her nose where it didn't belong." (Id. )
On August 15, 2016, the plaintiff's § 3020-a hearing concluded. (Compl. ¶ 45(u).) The hearing officer found that the plaintiff was guilty of dealing with the student at issue inappropriately, harassing that student's parents, and sending unwelcome packages to the student's home. ( § 3020-a Opinion at 19-30.) Based on the finding of misconduct, the plaintiff's employment was terminated. (Id. at 30.) The hearing officer made no specific finding on whether the school had retaliated against the plaintiff.
*211The plaintiff then filed a proceeding in the New York State Supreme Court pursuant to Article 75 of the New York Civil Practice Law and Rules, seeking to vacate the hearing officer's decision. (Compl. ¶ 57.) The Supreme Court denied the petition. (J.W. Reiter Decl. Ex. C, at 23.) The plaintiff then appealed that ruling to the Appellate Division of the Supreme Court where that appeal is still pending. (See A. Fuchs berg Decl. Ex. 6.)
III.
The defendants move to dismiss the Complaint on three grounds. First, they argue that the plaintiff is collaterally estopped from bringing her retaliation claim because it was already litigated during the § 3020-a proceeding. Second, they claim that the plaintiff has not pleaded sufficient facts to succeed on her retaliation claims. And third, they assert that there is no individual liability for violation of the RA and ADA.
A.
The defendants argue that all of the plaintiff's claims should be dismissed under the doctrine of collateral estoppel. They contend that the plaintiff is attempting to relitigate claims that she lost after a full and fair § 3020-a hearing. The plaintiff responds that her retaliation claim was "neither actually nor necessarily decided" at the § 3020-a hearing and, therefore, collateral estoppel does not apply.
The doctrine of collateral estoppel precludes a party from relitigating an issue that the party previously litigated and lost. Parklane Hosiery Co. v. Shore,
Section 3020-a decisions are not generic or interchangeable - they vary in their determinations of fact and law and, therefore, in their preclusive effect. Whether a § 3020-a determination has preclusive effect depends on the precise issue determined as compared to the issue in the subsequent litigation. Compare, e.g., Mazur v. N.Y.C. Dep't of Educ.,
In this case, the defendants cite to several instances where the plaintiff argued retaliation at her § 3020-a hearing. (See Defs.' Mem. at 11-13.) And the defendants also argue that the hearing officer determined that the plaintiff's termination was warranted.
At the § 3020-a hearing, what the hearing officer did decide was that the plaintiff acted improperly, ( § 3020-a Opinion at 25), that she had committed misconduct, (id. at 26), and that her actions warranted termination, (id. at 30). But the hearing officer did not decide whether the plaintiff was subjected to retaliatory actions by the defendants. (See id. at 26-31.) There is no indication that the hearing officer addressed, much less decided, whether the charges leading to the plaintiff's termination were driven, even in part, by retaliatory intent. Thus, the defendants' collateral estoppel argument fails. See Leon v. N.Y.C. Dep't of Educ.,
Moreover, there is another basis for rejecting the defendants' collateral estoppel argument. The plaintiff's § 3020-a hearing involved only a small fraction of the reprimands and none of the negative evaluations that the plaintiff received. Indeed, the hearing only produced evidence of the plaintiff's interactions with one child resulting in three of her sixteen reprimands. (See Compl. ¶ 45(c), (f), (p).) Therefore, the hearing officer had no occasion to consider whether the thirteen additional reprimands and the three negative evaluations were retaliatory. Those incidents of alleged retaliation could not be precluded by collateral estoppel.
Accordingly, the defendants' motion to dismiss based on collateral estoppel is denied .
B.
The defendants also argue that the plaintiff has not pleaded sufficient facts to state a claim under the ADA, the RA, the NYSHRL, the NYCHRL, the First Amendment of the United States Constitution, or Article 1 § 8 of the New York State Constitution.
*2131.
The plaintiff has withdrawn her claim under the ADA. Therefore, the defendants' motion to dismiss that claim is granted with prejudice .
2.
The defendants argue that the plaintiff has failed to state a claim for retaliation under the RA and the NYSHRL. To establish a prima facie case of retaliation under the RA and NYSHRL, the plaintiff must show that (1) she engaged in a protected activity, (2) her employer was aware of this activity, (3) the employer took an action disadvantaging the plaintiff, and (4) a causal connection exists between the alleged adverse action and the protected activity. Treglia v. Town of Manlius,
The defendants do not contest the first element; that is, they admit the plaintiff engaged in a protected activity by complaining to OCR and by declining to mediate her claim.
With respect to the second element, the plaintiff has pleaded sufficient facts to show that the defendants were aware of her complaints. The plaintiff alleges exactly that. (Compl. ¶ 41 ("Plaintiff's election to pursue her [OCR] complaint was known to Defendants.").) That allegation is wholly plausible. The BOE was the object of the ongoing investigation and was presumably aware of those proceedings. Moreover, the plaintiff declined two offers to mediate and it is plausible that the BOE - the other party of the mediation - would have also been asked to participate in the mediations. Thus, the plaintiff has pleaded sufficient facts to show that the defendants knew about her complaint to OCR and her decision not to mediate.
With respect to the third element, the plaintiff has sufficiently pleaded that adverse actions were taken against her. The defendants contend that the only adverse actions against the plaintiff were (1) the § 3020-a charges and hearing, and (2) the termination of the plaintiff's employment. The defendants' assertion ignores the deluge of reprimand letters and negative evaluations that the plaintiff received after declining to mediate her OCR claim, all of which constitute adverse actions. See Burlington N. & Santa Fe Ry. Co. v. White,
Here, the plaintiff alleges she received sixteen letters of reprimand between September 29, 2015, and February 18, 2016. (Compl. ¶ 45.) These letters alleged a range of misconduct, including neglect of her professional duties, unprofessional conduct, general misconduct, unsatisfactory lesson plans, and insubordination. (Id. ) She also claims that she received three negative evaluations. (Id. ¶ 45(d).) These reprimands and negative performance evaluations qualify as adverse actions under the RA and NYSHRL.
*214The plaintiff has also sufficiently pleaded the fourth element, causation. Causation may be shown "directly, through evidence of retaliatory animus by the person who initiated the adverse action against the plaintiff," or "indirectly, by showing that the retaliatory or discriminatory action was taken shortly after the protected activity." Smith v. City of New York, No. 16cv9244,
In this case, the plaintiff declined the second offer to mediate her complaint with OCR on September 18, 2015, and this was followed eleven days later with the first letter of reprimand. She also received her first negative performance evaluation within a month of declining to mediate. This stunningly short temporal proximity is sufficient to state a causal connection.
Thus, the plaintiff has stated a claim for retaliation under the RA and the NYSHRL. Accordingly, the defendants' motion to dismiss the RA and the NYSHRL retaliation claims is denied .
3.
The defendants argue that the plaintiff has failed to state a claim for retaliation under the NYCHRL. The Second Circuit Court of Appeals has held that "courts must analyze NYCHRL claims separately and independently from any federal and state law claims." Mihalik v. Credit Agricole Cheuvreux N. Am. Inc.,
Accordingly, the defendants' motion to dismiss the retaliation claim against them pursuant to the NYCHRL is denied .
4.
The defendants argue that the plaintiff has not alleged a retaliation claim under the First Amendment to the U.S. Constitution
*215The analysis under the First Amendment and New York's Article I § 8 are the same. Brinn v. Syosset Pub. Library,
The Supreme Court in Garcetti v. Ceballos clarified that in order to bring a claim for violation of the First Amendment a public employee must first establish that the employee spoke "as a citizen" on "a matter of public concern."
When a public employee airs a complaint pursuant to a clear duty to report imposed by law or employer policy, the employee is speaking as an employee and not as a citizen.
In this case, the Court cannot yet determine simply from the allegations in the Complaint that the plaintiff's protests were made pursuant to a clear duty to report, and were thus made as an employee rather than a citizen. See, e.g., Kelly,
*216The defendants also argue that the plaintiff's complaints were not protected by the First Amendment because they did not involve a matter of public concern. "The Supreme Court has defined 'a matter of public concern' as one that 'relat[es] to any matter of political, social, or other concern to the community.' " Sousa v. Roque,
Here, the plaintiff complained about her school's failure to provide required services to special-needs students. (Compl. ¶¶ 33-34.) Speech that touches on the quality of public education-and, more specifically, on the quality of education provided to special-needs children -may be a matter of public concern. See McGuire v. Warren,
Accordingly, the defendants' motion to dismiss the retaliation claim against them pursuant to the First Amendment and New York Constitution Article I § 8 is denied .
C.
Finally, the defendants argue that the RA and ADA do not provide for individual liability. In her opposition papers, the plaintiff withdrew all of her ADA claims as well as her RA claims against the individual defendants for individual liability. At oral argument, the plaintiff also agreed to withdraw her RA and ADA claims against the individual defendants in their official capacities.
Therefore, the defendants' motion to dismiss the plaintiff's RA and ADA claims against the individual defendants is granted with prejudice .
CONCLUSION
The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. As explained above, the defendants' motion to *217dismiss is granted in part and denied in part .
SO ORDERED.
This was the second complaint the plaintiff filed with OCR about her school. (Compl. ¶ 31.)
The plaintiff had "never [previously] received a letter of reprimand or discipline and ha[d] never been rated below satisfactory or effective." (Compl. ¶ 44.)
In the Complaint, the plaintiff alleged that she had received twenty letters of reprimand. (Compl. ¶ 42.) However, at oral argument counsel for the plaintiff informed the Court that there had only been sixteen letters, three of which were the basis for a § 3020-a hearing described in the subsequent paragraphs in the text.
Whether the plaintiff's termination was warranted would not preclude her action here. A finding that a plaintiff's termination was warranted does not "preclude the possibility of termination motivated by unlawful animus," such that a jury could find for the plaintiff on the retaliation claim. Garcia v. Yonkers Bd. of Educ.,
Although Burlington involved Title VII claims, courts have applied the definition of adverse action from that case to RA and NYSHRL retaliation claims. See Rivera v. Rochester Genesee Reg'l Transp. Auth.,
At oral argument defense counsel asserted that negative letters to an employee's file should not be considered adverse actions. As support, defense counsel cited Sotomayor v. City of New York,
A violation of the First Amendment to the United States Constitution by state officials is actionable under
Reference
- Full Case Name
- Anna DENICOLO v. The BOARD OF EDUCATION OF the CITY OF NEW YORK
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- Published