DAWN CALHOUN, Aрpellant, v COUNTY OF HERKIMER et al., Respondents, et al., Defendants.
Supreme Court, Appellate Division, Fourth Department, New York
980 N.Y.S.2d 664
It is herеby ordered that the order and judgment so appealed from is unanimously modified on the law by denying that part of the motion seeking to dismiss the retaliation claims and reinstating thosе claims, and as modified the order and judgment is affirmed without costs.
Memorandum: This retaliation action arises from plaintiff‘s employment with defendant Herkimer County Office of Employment and Training Administration (Employment and Training Office) pursuant to a contract between the Employment and Training Office and a nonprofit service agency. Plaintiff worked for defеndant County of Herkimer (County) in the Employment and Training Office for approximately six years. Defendant Steven Billings, who was then the County‘s Director of Employment and Training, was plaintiff‘s supervisor. In 2005, Billings‘s wife (Mrs. Billings), a special education teacher, was assigned to work with plaintiff‘s son, who had been classified as learning disabled. Beginning in October 2005, plaintiff expressed dissatisfаction with the special education services provided to her son by the school district generally and Mrs. Billings in particular. In March 2006, plaintiff and her husband attended a contentious meeting at the school with various parties, including Mrs. Billings. According to plaintiff, less than a week after that meeting, Billings advised plaintiff that her contract might not be renewed upon its expiration in April 2006 because of impending federal funding cuts. In a follow-up email to the school principal and a subsequent telephone conference with thе principal and Mrs. Billings, plaintiff continued to object to the alleged failure of Mrs. Billings to provide services to plaintiff‘s son in accordance with his individualized education plan. Shortly thereafter, Billings notified plaintiff that her contract would not be renewed.
Plaintiff subsequently commenced this action alleging, inter alia, that defendants subjected her to unlawful retaliation based upon her advocacy on behalf of her son, alleging violations of, inter alia, the Americans with Disabilities Act (
In оrder to make out a claim for unlawful retaliation under state or federal law, a plaintiff must show that “(1) she has engaged in protected activity, (2) her employer was awаre that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection betwеen the protected activity and the adverse action” (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 313 [2004]; see Adeniran v State of New York, 106 AD3d 844, 844-845 [2013]; see also Treglia v Town of Manlius, 313 F3d 713, 719 [2002]).
In order to establish entitlement to summary judgment in a retaliation case, a defendant may “demonstrate that thе plaintiff cannot make out a prima facie claim of retaliation” or, alternatively, a defendant may “offer[ ] legitimate, nonretaliatory reasons for the challenged actions,” and show that there are “no triable issue[s] of fact . . . whether the . . . [reasons are] pretextual” (Delrio v City of New York, 91 AD3d 900, 901 [2012]; see generally Forrest, 3 NY3d at 305). Here, although we agree with the court that defendаnts met their initial burden on the motion under the first of the two tests set forth in Delrio by submitting evidence that they were not aware of plaintiff‘s protected activity and that, in any event, there was no causal connection between her protected activity and the failure to renew her contract (see Brightman v Prison Health Serv., Inc., 108 AD3d 739, 741 [2013]), we conclude that plaintiff raised an issue of fact with respect to each of those two elements of her prima facie case (cf. id. at 742).
With respect to the element of defendants’ awareness of plаintiff‘s protected activity, plaintiff submitted Billings‘s deposition testimony, in which Billings acknowledged that, during the course of plaintiff‘s employment, he became aware that plaintiff‘s son wаs a student of his wife and that plaintiff was “not happy with things that were happening at the school.” Billings further acknowledged that, at some point, he specifically learned that “there was an issue” between plaintiff and his wife concerning plaintiff‘s son. Plaintiff also submitted her own deposition testimony, in which she testified that, after the dispute with the school esсalated, “all of a sudden [Billings] started making little comments” to her that suggested that he had discussed plaintiff‘s son with his wife. On one occasion, for
With respect to the element of a causal connection, we note that such element “may be established either ‘indirectly by showing that the protected activity was fоllowed closely by [retaliatory] treatment, . . . or directly through evidence of retaliatory animus directed against a plaintiff by the defendant‘” (Johnson v Palma, 931 F2d 203, 207 [1991], quoting DeCintio v Westchester County Med. Ctr., 821 F2d 111, 115 [1987], cert denied 484 US 965 [1987]; see Gordon, 232 F3d at 117; Sumner v United States Postal Serv., 899 F2d 203, 209 [1990]). Here, plaintiff‘s submissions raise an issuе of fact relative to causal connection both indirectly and directly. Plaintiff established a causal connection indirectly by submitting evidence that her protectеd activity was followed closely, i.e., within a few days or weeks, by Billings‘s decision to terminate her contract, thus raising an issue of fact based upon temporal proximity (see Cioffi v Averill Park Cent. School Dist. Bd. of Ed., 444 F3d 158, 168 [2006], cert denied 549 US 953 [2006]; cf. Matter of Pace Univ. v New York City Commn. on Human Rights, 85 NY2d 125, 129 [1995]). In аddition, plaintiff established a causal connection directly by submitting evidence of retaliatory animus on the part of Billings through her own testimony and that of her husband (see DeCintio, 821 F2d at 115).
Defendаnts also established their entitlement to summary judgment under the second of the two tests set forth in Delrio, by articulating legitimate, nonretaliatory reasons for the challenged employment action. The burden thereby shifted to plaintiff to produce evidence that the reasons put forth by defendants were merely pretextual or that, “regardless of any legitimate motivations the defendant may have had, the defendant was motivated at least in part by an impermissible motive” (Brightman, 108 AD3d at 741; see Treglia, 313 F3d at 721; Johnson, 931 F2d at 207; see generally Gordon, 232 F3d at 118; Sumner, 899 F2d at 208-209). Viewing the evidence in the light