In Elgalad v. New York City Department of Education, et al., 2024 WL 621617 (S.D.N.Y. Feb. 14, 2024), the court, inter alia, denied defendants’ motion for summary judgment on his retaliation claims asserted under the New York State and City Human Rights Laws.
After summarizing the “black letter” law as to this claim, the court applied it to the facts as follows:
Plaintiff meets his prima facie case of retaliation under the NYSHRL against Rochon and Mbuyi.
He engaged in protected activity as early as October 27, 2014, when he told Rochon that Mbuyi discriminated against him, and on November 19, 2014, when he wrote an email to Rochon saying Mbuyi had been discriminating against him. (Elgalad Exs. Q, R.) The record suggests Mbuyi knew of Plaintiff’s complaints of discrimination at least as early as December 16, 2014, since that was the day Mbuyi responded to the email Plaintiff sent to Rochon mentioning the “discrimination issue” Plaintiff was having that led him not to “want to be alone with Mr. Mbuyi.” (Mildner Decl. Ex. U.)With regard to the adverse action element, Plaintiff satisfies this element because, starting immediately with Mbuyi’s December 16, 2014 email, Plaintiff was subjected to a string of disciplinary meetings and a medical evaluation. Furthermore, around the same time that Mbuyi was interviewed by OEO investigators regarding Plaintiff’s formal discrimination complaint against him in early March of 2015, (Elgalad Ex. DD), Rochon and Mbuyi began exchanging emails that resulted, ultimately, in the June 1, 2015 disciplinary letter added to Plaintiff’s employment file that Plaintiff subsequently had expunged, see supra Pt. I.C. There were also a string of disciplinary letters added to Plaintiff’s employment file in 2016 shortly after Hilaire told Plaintiff to cease his pursuit of his discrimination charges against Mbuyi and Rochon, (Mildner Decl. Ex. B, at 22:4– 23:14; see supra Pt. I.D), a statement that could be viewed as a not so subtle warning to stop or else. Reviewing the record in the light most favorable to Plaintiff, as I must, Coughlin, 64 F.3d at 79, I find that the record could reasonably support the inference that Mbuyi and Rochon acted in a manner designed to “dissuade a reasonable worker from making or supporting a charge of discrimination.” Schaper, 408 F. Supp. 3d at 391 (citation omitted). After all, even if one were to consider any particular action taken against Plaintiff as minor, the sheer volume of them appears to have taken substantial amounts of time for Plaintiff to deal with almost daily and thus may be fairly said to have transformed the nature of his employment.
Defendants argue that “[m]any of Plaintiff’s alleged adverse actions are temporally far removed from any protected activity,” (MSJ 18.) I disagree. See Summa, 708 F.3d at 128 (explaining there is no “bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship.”). Here, there are multiple instances in the record where, after some event would have brought Plaintiff’s discrimination allegations to the forefront of Mbuyi’s and Rochon’s minds, Mbuyi and Rochon took further action against Plaintiff, and usually within a month or two of when they had reason to think about Plaintiff’s allegations. This apparent tit for tat response by Mbuyi and Rochon is in stark contrast to cases where an employee “suffered” acts that “were part of an extensive campaign of discipline already underway when she made her first complaint” of discrimination. Cf. Bacchus v. N.Y.C. Dep’t of Educ., 137 F. Supp. 3d 214, 243 (E.D.N.Y. 2015). For example, Rochon scheduled Plaintiff for a medical examination less than two months after the December 2014 emails about Plaintiff’s discrimination concerns with Mbuyi. (Mildner Decl. Ex. U; Elgalad Ex. V.) In mid-February and early March of 2015, OEO investigators interviewed Mbuyi and Rochon about Plaintiff’s formal discrimination complaint against Mbuyi. (Elgalad Exs. BB, DD.) In early March 2015, Rochon directed Mbuyi to close out the 2013 verbal abuse charge against Plaintiff. (Elgalad Ex. F.)15 I will not elaborate further on the other temporally-proximate examples of actions taken against Plaintiff, as these alone are enough to meet Plaintiff’s burden on this first step of the analysis.
Defendants have met their burden of production at step two of the analysis: they “proffered” evidence amounting to Plaintiff’s “poor work performance” and “bad behavior” as underlying the various actions to which Plaintiff was subjected. Kwan, 737 F.3d at 845. This is enough to shift the burden back to Plaintiff. Id.
Plaintiff has met his burden at step three of the analysis for the purposes of opposing summary judgment, as the record demonstrates “shifting and somewhat inconsistent explanations” for Defendants’ actions towards Plaintiff. See id. at 846. For example, it is not clear why Mbuyi decided to issue the June 1, 2015 letter to Plaintiff’s file and check the box on the OSI form stating that the charge was substantiated despite Mbuyi’s own conclusion in another document that the underlying charge was unsubstantiated. See supra Pt. I.C. Defendants do not even attempt to explain why Rochon drafted two separate letters—dated months apart—ordering Plaintiff to undergo a medical examination.16 Moreover, Mbuyi himself went out of his way to call a student to his office in 2016 and have her “write a statement” about Plaintiff. (Elgalad Ex. AF, at 265:4–24.) This statement served as the basis for many of the charges Plaintiff faced in 2016.
Accordingly, although a jury may conclude that much of the discipline Plaintiff faced was for legitimate reasons, a jury could also reasonably find that the discipline was “pretextual.” See Kwan, 737 F.3d at 847. A jury could conclude that, because Rochon and Mbuyi did not like that Plaintiff was complaining about discrimination, they waged a campaign to build a record against him that could “lead to termination of [his] employment,” (See Elgalad Ex. OO (collecting several of the 2016 disciplinary letters added to Plaintiff’s employment file)), a campaign that in fact ended with Plaintiff’s reassignment to ATR.
Having reached this conclusion as to plaintiff’s claims under the New York State Human Rights Law, it necessarily reached the same conclusion as to his claims under the comparatively lenient New York City Human Rights Law.