NYC Gym Teacher’s Retaliation Claims, Following (Retracted) Allegations of Inappropriate Sexual Conduct Towards Students, Continues

In Giscombe v. New York City Dept. of Education, the Southern District of New York denied defendant’s motion for summary judgment on plaintiff’s retaliation claim under Title VII of the Civil Rights Act of 1964. Here’s plaintiff’s amended complaint.

Plaintiff, a physical education teacher, claimed that the DOE re-opened an investigation into claims that he engaged in inappropriate sexual conduct towards students – after the students making the allegations admitted to fabricating their stories – to retaliate against him for opposing the DOE’s discriminatory practices.

The court found that the close interval of time between plaintiff’s protected activities and plaintiff’s reassignment and initiation of disciplinary charges (at most, about 12 weeks), coupled with evidence that the decision-makers were aware of those protected activities, plaintiff established a prima facie case of retaliation.

After determining that defendant met its burden of articulating a legitimate, non-retaliatory reason for its actions, the court turned to the third step of the retaliation analysis, namely, determining whether plaintiff came forward with evidence that the non-retaliatory reason is a “mere pretext” for retaliation.

It concluded that plaintiff did so:

Plaintiff has carried his burden of providing sufficient evidence that Defendant’s legitimate, non-retaliatory reason for taking adverse employment action against him is a mere pretext for retaliation. In combination with the evidence of temporal proximity discussed above, Plaintiff has produced evidence that Defendant may have known that the allegations against Plaintiff were fabricated and statements in the SCI report were false, but chose to ignore the exonerating evidence. One of the six students wrote a letter admitting that she and the other students who had complained about Plaintiff had concocted their stories in order to get Plaintiff fired because they did not like him and thought he wanted to “fail them on purpose.” The letter was written in the presence of the assistant principal, who testified that she spoke to [principal] Fanning about the statement. However, Fanning testified that he never saw the statement and never spoke to anyone about it, and even if he had received the statement, he would not have turned it over to the SCI. The retroactive disciplinary charges were forwarded for Fanning’s review and sign-off in March of 2012. Plaintiff’s evidence that Fanning signed-off on charges that were based on statements that he may have known were fabricated, together with the temporal proximity between Plaintiff’s protected activities (the informal complaint of discrimination, the filing of this lawsuit, and the EEOC complaint) and his subsequent removal from the classroom, create an inference of pretext sufficient to survive summary judgment.

The court also denied defendant’s motion for summary judgment on plaintiff’s retaliation claim under 42 U.S.C. § 1983, noting that both principal David Fanning and DOE Chancellor Dennis M. Walcott were both “policymakers” for purposes of that statute.

Share This: