Retaliation Claim Sufficiently Alleged; Suspension Closely Followed Complaint of Sexual Harassment

In Eustache v. Bd. of Educ. of the City School Dist. of the City of New York, No. 153619/2019, 2023 WL 2307500 (N.Y. Sup Ct, New York County March 1, 2023), the court granted plaintiff’s motion for reconsideration, finding that the court previously erred in dismissing plaintiff’s cause of action for retaliation under the New York State and City Human Rights Laws.

From the decision:

After reviewing plaintiff’s moving papers, the Court is persuaded that he has sufficiently pled a retaliation cause of action under both the NYSHRL and the NYCHRL against the DOE. The facts, as pled, indicate that (1) plaintiff complained to Principal Mota of Lafia’s ongoing sexual harassment and simultaneously filed a complaint against her with OEO, (2) the very next day, plaintiff was informed he was being suspended for unexplained reasons, reasons that were not made clear for approximately ten more days; (3) the DOE affirmed his suspension even after the timing of his alleged misconduct had been inexplicably changed to a date that placed him in the classroom, as opposed to on a field to trip, to match the allegations against him; (4) Lafia was never reprimanded and the OEO has not, as of when plaintiff moved herein, investigated her for her misconduct, and (5) employees of the DOE–specifically, the school’s Assistant Principals Conlon and Griffith–demeaned and mocked plaintiff, and generally treated him worse than his co-workers upon his return after the suspension.

Based on these facts, it can readily be inferred that the “bogus claim” against plaintiff, as the Court previously put it, was in fact made in retaliation for the complaint to Mota and the OEO. The temporal proximity alone supports the inference of retaliation. (See Russell v New York Univ., 204 AD3d 577, 588 [1st Dept 2022] [holding the five weeks between the protected activity and plaintiff’s termination were sufficient to support retaliation claim]; Cook v EmblemHealth Servs. Co., LLC, 167 AD3d 459, 460 [1st Dept 2018] [temporal proximity by itself may support inference of causal nexus]; Krebaum v Capital One, N.A., 138 AD3d 528, 528-529 [“The temporal proximity of plaintiff’s complaint and the termination of his employment one month later indirectly shows the requisite causal connection].) Here, the protected activity was almost immediately followed by the suspension. Such a short intervening period of time, a mere day, between the two events supports an inference of retaliation.

From the Court’s perspective, the degree to which there is a causal connection between plaintiff’s complaint to Mota and his suspension is perhaps greater than the causal connection in similar cases where the First Department has held that a plaintiff has stated a cause of action for retaliation. In Thomas v Mintz, the First Department held that the plaintiff sufficiently pled a retaliation cause of action where defendant charged him with departmental misconduct (for actions that allegedly occurred more than a year earlier) six months after plaintiff complained of defendant’s discriminatory conduct. (182 AD3d at 490.) In Petit v Department of Educ. of the City of N.Y., the Court determined that the plaintiff sufficiently pled a retaliation cause of action where he alleged the defendant–another school principal–falsely accused him of misconduct, then assigned him to a worse office and demoted him. (17 AD3d at 403.) And in Cook v EmblemHealth Servs., the First Department affirmed the lower court’s denial of defendant’s motion to dismiss. According to the court, the fact that the “defendants never investigated, or even acknowledged” plaintiff’s complaint–similar to how the OEO has not invested plaintiff’s allegations against Lafia– “provides additional support for an inference of retaliation.” (Id.) Lastly, the inference of retaliation is only strengthened by the fact that plaintiff suffered what appears to be unduly harsh punishment relative to the inconsequential misconduct charge. As Conlon stated, in her experience, she had never witnessed a suspension for misconduct that did not endanger students or result from an arrest. (See Russell v New York Univ., 204 AD3d at 588 [“This inference [of retaliation] is only buttressed by the arbitrator’s finding that her termination was an unduly harsh remedy for her conduct”].)

As the Court’s recitation of the facts indicates, the complaint has pled (1) a temporal proximity as in Krebaum, (2) an arbitrary disciplinary proceeding as in Mintz and Petit, (3) the defendant’s failure to investigate the discriminatory conduct as in EmblemHealth, and (4) an unduly harsh punishment as in Russell. Defendant merely argues, without citation, that plaintiff cannot plead a claim for retaliation through implication. (NYSCEF doc. no. 56 at 4, def. memo of law.) However, the foregoing discussion demonstrates that a plaintiff can plead a cause of action through indirect evidence. (See Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 204 [1st Dept 2015].) Accordingly, plaintiff’s motion for leave to reargue is granted and his cause of action for retaliation is reinstated against the DOE.

Having reached this conclusion as to the DOE, the court further granted plaintiff’s motion as to his retaliation claim against individual defendant Lafia on an “aiding and abetting” theory.

Share This: