306 F. Supp. 3d 532
S.D. Ill.2018Background
- Plaintiff, an Assistant Principal at P.S. 24 in the Bronx, alleges he was retaliated against after complaining about discriminatory kindergarten enrollment practices that disadvantaged low‑income and minority students.
- Alleged retaliatory incidents: (1) immediate efforts by District Superintendent Mashel after an October 2015 PA meeting to discipline/remove plaintiff; (2) a May 2016 meeting and counseling memorandum directing plaintiff to avoid contact with certain students; (3) in October 2016 Principal Schwartz substantially reduced plaintiff’s duties and resources.
- Plaintiff complained to DOE officials and to the DOE Special Commissioner of Investigation; that investigation substantiated some allegations and precipitated administrative changes at the school.
- Claims asserted: Title VI retaliation; New York City Human Rights Law (NYCHRL) retaliation; 42 U.S.C. § 1983 First Amendment retaliation; NY Civil Service Law § 75‑b whistleblower; and negligence.
- Defendants moved to dismiss. The Court: dismissed the § 1983 and negligence claims with prejudice; allowed some NYCHRL and § 75‑b claims to proceed against DOE and certain individuals; dismissed Title VI without prejudice for inadequate pleading of federal funding and individual liability; dismissed individual liability under § 75‑b.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can Title VI retaliation be pleaded and against whom? | Verdi: Title VI protects retaliation for opposing racial discrimination; sued DOE and individuals. | Defs: Individuals not liable under Title VI; plaintiff fails to allege link to federal funding or adverse employment action. | Court: Individuals cannot be sued under Title VI; Title VI claim dismissed without prejudice for failure to plead DOE’s relevant federal funding and beneficiary nexus (may replead against DOE only). |
| Do NYCHRL retaliation claims survive? | Verdi: Mashel and Schwartz retaliated such that a reasonable employee would be deterred. | Defs: Actions not sufficiently adverse. | Court: NYCHRL claims survive as to Mashel (and DOE) for threats and as to Schwartz (and DOE) for substantial duty/resource changes; other NYCHRL claims dismissed. |
| Is plaintiff’s § 1983 First Amendment claim actionable? | Verdi: Speech on discriminatory enrollment and registration was public‑concern speech protected from retaliation. | Defs: Speech was made pursuant to official duties (employee speech), so not protected. | Court: Speech was part‑and‑parcel of job duties as Assistant Principal (advocacy for students); § 1983 claim dismissed with prejudice. |
| Does NY Civil Service Law § 75‑b provide relief and against whom? | Verdi: § 75‑b protects whistleblowing disclosure to governmental bodies; retaliation alleged. | Defs: § 75‑b does not permit individual liability; plaintiff failed to exhaust contractual remedies and did not allege an enumerated adverse personnel action. | Court: Individuals not liable under § 75‑b; plaintiff not required to exhaust CBA remedies here; § 75‑b claim survives only as to DOE for Schwartz’s reassignment/reduction of duties (other § 75‑b allegations dismissed). |
Key Cases Cited
- Garcetti v. Ceballos, 547 U.S. 410 (public‑employee speech made pursuant to official duties is not protected by the First Amendment)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (definition of adverse action in retaliation context)
- Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102 (NYCHRL retaliation standard — conduct reasonably likely to deter)
- Weintraub v. Bd. of Educ., 593 F.3d 196 (practical test for whether employee speech is pursuant to official duties)
- Ass'n Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256 (Title VI employment‑discrimination funding limitation analysis)
- Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556 (counseling memoranda generally not adverse employment actions in retaliation claims)