MEMORANDUM, ORDER & JUDGMENT
Table of Contents
I.Introduction .'.180
II. Procedural History.180
III. Facts.181
IV. Summary Judgment Standard.183
V. Law.184
A. Statutes.184
B. Exhaustion of Administrative Remedies Standard.184
C. Retaliation Claim Standard under Section 1983 of Title 42 (Free Speech Rights).184
D. Retaliation Claim Standard under Section 1981 of Title 42 (Racial Discrimination).185
2. Plaintiffs Burden: Prima Facie Case. i — i OO as
3. Employer’s Burden: Articulate Non-Retaliatory Reason for Employment Action.. oo oo
4. Plaintiffs Renewed Burden: Establish Pretext for Employment Action oo oo
VI. ■ Application of Law to Facts.189
A. Retaliation Claim under Section 1983 of Title 42 (Free Speech Rights).189
B. Retaliation Claim under Section 1981 of Title 42 (Racial Discrimination).189
VII. Conclusion. .191
I. Introduction
In a case of apparent first impression, the court finds that ordering a subordinate to discriminate against fellow employees on the basis of their race, then retaliating against her when she refuses, is a violation of Sectiоn 1981 of Title 42 of the United States Code. Sufficient evidence supports a finding for plaintiff on that theory. Defendant’s motion for summary judgment is denied.
In September 2008, Christina Villavicen-cio, a Latina female, had been employed by the New York City Department of Education (“DOE”) for fifteen years. During the 2008-2009 school year, under the supervision of Principal Elif Gure-Perez, Vil-lavicencio served as an assistant principal at P.S. 316. Her status was probationary.
Villavicencio allegedly refused to follow the orders of Gure-Perez and file false reports against African American teachers at P.S. 316. Because of this refusal, it is contended, Gure-Perez fired her as assistant principal, resulting in a salary reduction and reassignment to another school.
A claim under Section 1983 of Title 42 for violation of free speech rights is denied because the speech related to internal school administration.
The claim under Section 1981 of Title 42 for retaliation survives. A reasonable juror could find that Gure-Perez retaliated against Villavicencio because of her refusal to participate in a program of discrimination. Plaintiff is in the same legal and factual position as if she had herself been discriminated against on the basis of race.
II. Procedural History
On November 12, 2010, Carolyn Lovejoy and Elizabeth Butler, former teachers at P.S. 316, and Christina Villаvicencio, a former assistant principal at the same school, served a joint complaint in state court against the DOE and Gure-Perez, their former principal. Defs.’ Rule 56.1 Statement ¶¶ 1, 5, 11, 30, No. 10-CV-5748, Dec. 24, 2013, ECF No. 31. They claimed race—and age-based discrimination and retaliation. Compl. ¶¶ 75-89, No. 10-CV-5748, Dec. 10, 2010, ECF No. 1.
A notice of removal was served transferring the case to this court. Notice of Removal, No. 10-CV-5748, Dec. 10, 2010, ECF No. 1; Mem., No. 10-CV-5748, Dec. 17, 2010, ECF No. 2.
Severed from Lovejoy’s case were Butler’s and Villavicencio’s claims. Summ. J. Hr’g Tr. 4:17-18, No. 10-CV-5748, Jan. 31, 2014, ECF No. 77. Without the need for further service, these claims were then incorporated in new separate actions. The court stated: “If, within thе next ten days, [Butler and Villavicencio] separately file[ ], ... the[ir] [cases] will be treated as if they had been filed with Ms. Lovejoy’s case....
Defendants moved for summary judgment in the cases brought by Lovejoy, Butler, and Villavicencio. Id. at 5:13-25:16 (Lovejoy); 25:17-38:2 (Butler); 38:3-45:15 (Villavicencio). Summary judgment was denied in Lovejoy; decision was reserved on these mQtions in Butler and Villavicencio. Id. at 25:13, 47:2-3. The parties stipulated that the hearing record of January 31, 2014 “applies] to all three cases.” Id. at 45:16-21. In all three cases, counsel for plaintiffs conceded that Monell liability did not apply. Id. at 8:10-9:3. The court dismissed all 42 U.S.C. §§ 1983 and 1981 claims against defendant DOE in Lovejoy. Order, No. 10-CV-5748, Feb. 21, 2014, ECF No. 68.
After the court denied summary judgment in Lovejoy, the case was tried. Order, No. 10-CV-5748, May 21, 2014, ECF No. 90. The jury found Gure-Perez liable for creating а hostile race-based work environment. Id. It returned a $110,000 verdict. Minute Entry, No. 10-CV-5748, May 21, 2014, ECF No. 80.
On February 10, 2014, Butler and Villav-icencio filed independent complaints. Deck of K.C. Okoli ¶ 6, Nos. 14-CV-0777 and 14-CV-0889, Sept. 8, 2014, ECF Nos. 11-1.
Denied were Gure-Perez’s motions to dismiss on the ground of improper service in Butler and Villavicencio. Order, Nos. 10-CV-0777 and 10-CV-0889, Oct. 7, 2014, ECF Nos. 16. Both complaints were treated as having been filed on December 10, 2010, the date on which a notice of removal transferring the case to the United States District Court for the Eastern District of New York was served. Id. DOE was dismissed as a defendant. Id. New York City Human Rights Law claims against Gure-Perez were dismissed. Id. Butler was allowed to proceed. Order, No. 14-CV-0777, Oct. 7, 2014, ECF No. 16. It is set for trial in January 2015. Id.
Villavicencio was dismissed on defendant’s motion for summary judgment. Hr’g Tr., Oct. 2, 2014, No. 14-CV-0889. Dismissаl was withdrawn on October 8, 2014. Order, No. 14-CV-0889, Oct. 8, 2014, ECF No. 17. The case was set down for re-argument on the motion for summary judgment. Id. Further research revealed “grounds for distinguishing the decision in Leibovitz [v. N.Y.C. Transit Auth.,
III. Facts
The “facts” stated below are based on allegations of plaintiff supported by admissible evidence.
Villavicencio started working as a DOE employee in 1994. Compl. ¶29, No. 10-CV-0777, Feb. 10, 2014, ECF No. 1. From 2008 to 2009, she was employed at P.S. 316 as an assistant principal on probationary status. Id. ¶¶ 10, 32. She worked under the supervision of defendant, Principal Elif Gure-Perez. Id. ¶ 12.
Gure-Perez’s racism against African Americans became known to Villavicencio before Gure-Perez became principal of P.S. 316. In April or May 2008, Gure-Perez asked Villavicencio: “How is Shining?” Id. ¶45. This was an uncomplimentary reference to African American teacher Tracy Collins. Id. ¶¶ 46, 48.
As principal of P.S. 316, Gure-Perez’s racism became more blatant. At the first faculty conference, on August 28, 2008, Gure-Perez made references to, and read, “Old Black Joe.” Id. ¶¶ 49, 50. Most of the teachers present took offense to the reading of the story, but “[concerned about
In January or February 2009, defendant directed Villavicencio to re-observe two African American teachers Villavicencio had rated “Satisfactory”; Gure-Perez “wanted these teachers to be rated Unsatisfactory ... because they were ‘old’ and African Americans.” Id. ¶¶ 14-15. She instructed Villavicencio to use “fear” and “intimidation” against a third minority teacher in order to “make her retire.” Id. ¶ 16. When Villavicencio suggested to Gure-Perez that “it would be fair to give these [minority] staff members ... a little time before they were formally observed and/or evaluated[,] [Gure-]Perez [responded]: ‘So you think these teaсhers are entitled to work in this building?’ ” Id. ¶ 20.
Villavicencio claims she “refused to be [Gure-Perez’s] tool for the discriminatory treatment of African Americans and older staff at PS 316,” toward whom Gure-Perez showed “blatant disrespect ... in the presence of students and others, using intimidating language, threats of arrest and/or dismissal, excessive write-ups, and forceful suggestions of retirement.” Id. ¶¶ 15, 17, 21, 22, 58. In Villavicencio’s presence, Gure-Perez “never ... address[ed] the three or four Caucasian staff at PS 316 with disrespect or [the] insulting tone and language which she showed toward African Americans.” Id. ¶ 59.
Plaintiff did not provide older African American teachers with unwarranted “Unsatisfactory”' ratings as ordered around January or February 2009. Id. ¶ 14. She refused to follow Gure-Perez’s “instructions to use intimidation, fear, excessive false write-ups, and other foul tactics” on older African American teachers “so [Gure-Perez] could get rid of those individuals from PS 316.” Id. ¶ 15, 57-58.
The complaint charges that once Gure-Perez realized plaintiff would not take part in “her plan to use trumped-up write-ups, fraudulent evaluations and false pretenses to get rid of older African American staff at PS 316,” the principal “began to nitpick and find non-existent fault with Villavicencio’s work.” Id. ¶¶21, 57. On or about January 21, 2009, Gure-Perez “informed Villavicencio of an allegation of ‘theft of services’ .... [that she] later told Villаvi-cencio ... was unsubstantiated.” Id. ¶ 25. Gure-Perez told Villavicencio that her investigation showed that Villavicencio did not clock in for the month of November. Id. ¶ 26. On or about February 6, 2009, Gure-Perez accused Villavicencio of having “ Very poor supervisory skills” ’ and told her that she did not have the “ ‘backbone to write up teachers.” ’ Id. ¶ 27. Three days later, Gure-Perez placed Villavicen-cio’s first disciplinary letter in her file. Id. ¶ 29. On or about February 13, 2009, Gure-Perez told Villavicencio to start looking for another job. Id. ¶ 30.
Villavicencio was reassigned to P.S. 191 on April 1, 2009, effective April 2, 2009, under the supervision of Principal Elsi Capolongo. Id. ¶¶ 35, 37. Capolongo, a friend of Gure-Perez, told Villavicencio on multiple occasions: “ ‘I’m not Ms. [Gure-]Perez and not one to mess around with.’ ” Id. ¶ 38. The complaint indicates that Gure-Perez encouraged Capolongo to give Villavicencio a “hard time.” Id. ¶ 44. A few days after Villavicencio started working at P.S. 191, Capolongo told Villav-icencio to come to her office with a United Federation of Teachers (“UFT”) representative because the meeting could lead to disciplinary action. Id. ¶40. The UFT chapter leader advised Villavicencio to leave the school because “[Capolongo and her friends] are after you.” Id. ¶ 41.
It is claimed that, in May 2009, the experiences with Gure-Perez and Capolon-go led Villavicencio to take medical leave because of anxiety and depression. Id. ¶ 43. Villavicencio was prescribed medication and therapy. Id.
IV. Summary Judgment Standard
Summary judgment will be granted when it is shown that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). See also Sledge v. Kooi
If the movant meets this burden, the non-moving party must provide “specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
The Court of Appeals for the Second Circuit has “repeatedly expressed the need for caution about granting summary judgment to an employer in a discrimination case where ... the merits turn on a dispute as to the employer’s intent.” Holcomb v. Iona Coll.,
V. Law
A. Statutes
Plaintiff sues under Sections 1983 and 1981 of Title 42 of the United States Code. Section 1983 protects the right to free speech of government employees, see e.g., Connick v. Myers,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.
42 U.S.C. § 1983.
Section 1981 protects against a deprivation of contract rights as a result of illegal discrimination. CBOCS W., Inc. v. Humphries,
B. Exhaustion of Administrative Remedies Standard
Claims brought under Sections 1983 and 1981 of Title 42 do not require exhaustion of administrative remedies before suing in fedеral court. See e.g., Johnson v. Cnty. of Nassau,
C.Retaliation Claim Standard under Section 1983 of Title 42 (Free Speech Rights)
“[A] public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment.” Connick,
To establish a prima facie retaliation claim for violation of a public employee’s First Amendment right to free speech, a plaintiff must show that: “(1) [the] speech addressed a matter of public concern, (2) [the speaker] suffered an adverse employment decision, and,(3) a causal connection exists between [the] speech and that adverse employment decision.” Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ.,
Two inquiries are central in determining if a public employee’s speech is entitled to constitutional protection: (1) “whether,the employee spoke as a citizen on a matter of public concern,” and, if so, (2) “whether the relevant government entity [or supervisor] had an adequate justification for treating the employee differently from any other member of the general public.” Garcetti v. Ceballos,
First Amendment rights of public employees have been sharply restricted by
If the answer to the first inquiry is “yes,” the court moves to the second part of the test — questioning whether “an adequate justification [exists] for treating the employee differently from any other member of the general public.” Garcetti,
D. Retaliation Claim Standard under Section 1981 of Title 42 (Racial Discrimination)
1. Standing
Cases in the Supreme Court and the Court of Appeals for the Second Circuit support the rule that a plaintiff has a cause of action under Section 1981 of Title 42 against a specific superior for retaliation based upon a refusal to discriminate at the direction of the superior. See Thompson v. N. Am. Stainless, LP,
According to the Court of Appeals for the Second Circuit, plaintiff does not have a cause of action for discrimination that she did not herself observe or participate in. Leibovitz v. N.Y.C. Transit Auth.,
This court’s Leibovitz v. N.Y.C. Transit Auth. opinion ruled that an employee was discriminated against if her coworkers were being discriminated against on invidious grounds.
As a matter of judicial notice for рurposes of determining public policy and substantive law, the court finds that most responsible persons in the United States would be distressed at observing others’ suffering and being asked to participate in further causative abuse. The Supreme Court recognizes that Civil Rights statutes afford employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. Retaliation for refusing an order to assist in a program of discrimination is impermissible.
Compare to language in
If it were clear law that an employee who reported discrimination ... could be penalized with no remedy, prudent employees would have a good reason to keep quiet about [discrimination] offеnses against themselves or against others. This is no imaginary horrible given the documented indications that fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination. ... Nothing in the [Civil Rights] statute’s text or our precedent supports this catch-22.
2. Plaintiffs Burden: Prima Facie Case
Retaliation under Section 1981 is analyzed under the same standards as a Title YII retaliation claim. See, e.g., Little v. N.E. Util. Serv. Co.,
a. First Prong: Engagement in Protected Activity
“The term ‘protected activity’ refers to action taken to protest or oppose statutorily prohibited discrimination.” Cruz v. Coach Stores, Inc.,
b. Second Prong: Employer’s Awareness of Protected Activity
'“[I]nformal complaints must be sufficiently specific to make it clear that the employee is complaining about conduct prohibited by federal law.” Id. “[IJmplicit in the requirement that the employer [was] aware of the protected activity is the requirement that [the employer] understood, or could reasonably have understood, that the plaintiffs opposition was directed at [prohibited] conduct.” Galdieri-Ambrosini v. Nat. Realty & Dev. Corp.,
The Supreme Court recognizes that opposition can be manifested subtly and without uttering a firm “no”:
“Oppose” goes beyond “active, consistent” behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. Countless people were known to “oppose” slavery before Emancipation, or are said to “oppose” capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we wоuld call it “opposition” if an employee took a stand against an employer’s discriminatory practices not by “instigating” action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons.
Crawford,
The Court of Appeals for the Second Circuit has held that when “indicia of discrimination are properly presented, the remarks can no longer be deemed ‘stray,’ and the jury has a right to conclude that they bear ominous significance.” Danzer v. Norden Sys., Inc.,
c. Third Prong: Materially Adverse Employment Action
The term “materially adverse action” refers to one or more actions that change the terms and conditions of an individual’s employment. See, e.g., Joseph v. Leavitt,
d. Fourth Prong: Causal Connection between Adverse Action and Protected Activity
“Proof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defеndant.” Gordon v. N.Y.C. Bd. of Educ.,
3. Employer’s Burden: Articulate Non-Retaliatory Reason for Employment Action
“Once the plaintiff hаs established a pri-ma facie showing of retaliation, the burden shifts to the employer to articulate some legitimate, non-retaliatory reason for the employment action.” Kwan v. Andalex Grp. LLC,
4. Plaintiffs Renewed Burden: Establish Pretext for Employment Action
In order to successfully rebut an employer’s purported non-discriminatory reason for the employment action, the plaintiff must establish pretext. Id. Retaliation must be shown as the “but-for” cause of the adverse action. The standard for es
The Supreme Court recently held that a plaintiff alleging retaliation in violation of Title VII must show that retaliation was ■ a “but-for” cause of the adverse action, and not simply a “substantial” or “motivating” factor in the employer’s decision. However, “but-for” causation does not require proof that retaliation was the only cause of the employer’s action, but only that the adverse action would not have occurred in the absence of the retaliatory motive.
A plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate, nonretaliatory reasons for its action.
The determination of whether retaliation was a “but-for” cause, rather than just a motivating factor, is particularly poorly suited to disposition by summary judgment, because it requires weighing of the disputed facts, rather than a determination that there is no genuine dispute as to any material fact.
Kwan,
VI. Application of Law to Facts
A. Retaliation Claim under Section 1983 of Title 42 (Free Speech Rights)
Villavicencio cannot establish a pri-ma facie retaliation claim under Section 1983. The speech at issue involves her refusal to rate teachers “Unsatisfactory” and a statement she made to Gure-Perez about providing teachers with more time before formal observations and evaluations. Villavicencio’s speech was made pursuant to her official state duties. Compl. ¶¶ 14-15, 17, 20, No. 10-CV-0889, Feb. 10, 2014, ECF No. 1. Even if this language related to racism, a “matter of public concern,” it is not protected under the First Amendment. See supra Part V.C. Villavicencio was not engaging in the speech as a citizеn. Her speech was pursuant to her role as assistant principal and was directed only to her supervisor as part of the internal work involving the operation of the school.
Because Villavicencio cannot satisfy the first prong of the free speech inquiry, the second prong need not be addressed.
Villavicencio’s Section 1983 claim is dismissed.
B. Retaliation Claim under Section 1981 of Title 42 (Racial Discrimination)
There is a question of material fact regarding whether Villavicencio was retaliated against because she refused to engage in racial discrimination. Construing the facts in the light most favorable to plaintiff, Villavicencio can make out a prima faciе case of retaliation under the Section 1981 retaliation test and sufficiently establish pretext. See supra V.D.2-4.
First, Villavicencio’s refusal to promote racial discrimination is protected activity. See supra Part V.D.2.a. By (1) refusing to provide older African American teachers with unjustified “Unsatisfactory” ratings and (2) suggesting to Gure-Perez that she provide these teachers with more lead time before formal observations and evaluations, Villavicencio informally protested discriminating against her colleagues. See Compl. ¶¶ 14-15,17, 20.
Second, these actions were sufficiently specific to make it clear to Gure-Perez that Villavicencio was complaining about race-based discrimination. See su-
In the instant case, Gure-Perez’s behavior at P.S. 316 with respect to African Americans strongly suggests that racism played a role in the manner in which she ran the school and that her order to Vil-laviceneio to re-observe two older African American teachers was not race-neutral. See Compl. ¶¶ 45^6, 49-51, 54, 56. Given the relationship of an assistant principal who is on tenuous probation, coupled with the fact that the principal had already aggressively retaliated against another assistant principal&emdash;by reassigning him to the “Rubber Room” for complaining about Gure-Perez’s proclivity for racist thinking, Compl. ¶ 51&emdash;plaintiff has satisfied the burden of establishing Gure-Perez’s awareness of a protest. She appropriately brought to the defendant’s notice her objection to discriminate on the basis of race. Cf. Stoler v. Inst. for Integrative Nutrition, No. 13-CV-1275,
Third, Gure-Perez ultimately succeeded in materially and adversely changing the terms and conditions of Villavicen-cio’s employment. See supra Part V.D.2.C. The transfer to P.S. 191, Compl. ¶¶ 35-36, was “more 'disruptive than a mere inconvenience or an alteration of job responsibilities.” Joseph,
Fourth, Villavieencio has sufficiently alleged a causal connection between her protected activity and her dismissal as assistant principal. See supra Part V.D.2.d. She was dismissed within less than two months of refusing to re-observe two African American teachers whom she had rated “Satisfactory.” Compl. ¶¶ 14, 35. From the moment Villavieencio refused to file false reports on these African American teachers, Gure-Perez started a campaign to terminate Villavicencio’s employment as assistant principal. See Compl. ¶¶ 21, 23-27, 29-32.
Fifth, Villavieencio has sufficiently established pretext. See supra Part V.D.4. A rational jury could find that “but-for” Villavicencio’s refusal to discriminate, Gure-Perez-would not have demoted her and had her transferred to another school. While dismissal due to poor performance would be a legitimate non-discriminatory reason for terminating an employee’s position, a genuine issue of material fact exists as to whether retaliation was the “but-for” cause of Villavicencio’s dismissal. , This is
Defendant’s motion for summary judgment regarding Villavicencio’s Section 1981 claim is denied.
VII. Conclusion
Defendants’ motion for summary judgment is granted on Villavicencio’s Section 1988 claim. It is denied on her Section 1981 claim.
Trial is set for January 27, 2015. A jury will be selected before a magistrate judge at 9:30 a.m. on January 26, 2015.
In limine motions will be heard on January 20, 2015 at 10:00 a.m.
By January 13, 2015, the parties shall submit to the court proposed jury charges and verdict sheets, in limine motions, and any supporting briefs; they shall exchange and file with the court: (1) lists of pre-marked exhibits proposed for use at trial, together with copies of all exhibits; (2) lists of proposed witnesses together with brief summaries of their proposed testimony; and (3) stipulations with respect to all undisputed facts.
Disputes related to briefing schedules or discovery are respectfully referred to the magistrate judge. Either party may seek further discovery from the magistrate judge in view of the issues to be tried pursuant to this order.
SO ORDERED.