Lopez v. East Hampton Union Free School District

Filing 35

MEMORANDUM OF DECISION AND ORDER - Accordingly, for the reasons stated above, the Defendants 28 motion for summary judgment dismissing the Plaintiffs claims is granted in part and denied in part. It is granted to the extentthat the Plaintiffs Sect ion 1983 procedural due process claim is dismissed. It is denied with regard to the following claims made by the Plaintiff: the Title VII discrimination claim; the Title VII retaliation claim; the Section 1983 First Amendment retaliation claim; and t he Section 1983 equal protection claim, as each of these claims have triable issues of fact. As directed by United States Magistrate Judge Steven I. Locke, the parties are to notify Judge Locke of this Courts decision within ten days of the entry of the Order. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 5/20/2017. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LUZ PIEDAD LOPEZ,
Plaintiff,
-againstEAST HAMPTON UNION FREE SCHOOL
DISTRICT,

MEMORANDUM OF
DECISION AND ORDER
14-cv-1999 (ADS)(SIL)

Defendant.
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APPEARANCES:
The Law Office of Lawrence E. Kelly
Attorney for the Plaintiff
11 Cedar Bay Court
Bayport, NY 11705
By:
Lawrence E. Kelly, Esq., Of Counsel
Devitt Spellman Barrett, LLP
Attorneys for the Defendants
50 Route 111
Smithtown, NY 11787
By:
David H. Arntsen, Esq.,
Jeltje DeJong, Esq.,
Joshua S Shteierman, Esq.,
Kelly E Wright, Esq., Of Counsel
SPATT, District Judge:
The Plaintiff Luz Piedad Lopez (the “Plaintiff”) brought this employment discrimination
action against the Defendant East Hampton Union Free School District (the “Defendant” or the
“District”) pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title
VII”); and 42 U.S.C. § 1983 (“Section 1983”).
Presently before the Court a motion by the Defendant for summary judgment pursuant to
Federal Rule of Civil Procedure (“FED. R. CIV. P.” or “Rule”) 56. For the following reasons, the
Defendant’s motion is granted in part, and denied in part.

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I. BACKGROUND
A. The Relevant Facts
The following facts are drawn from the Defendant’s 56.1 Statement, and the Plaintiff’s
56.1 Counterstatement (together, the “Joint 56.1 Statement”).
The Plaintiff worked for the Defendant from 2003 until June of 2012. The Defendant hired
the Plaintiff in 2003 to work as a lunch monitor at an elementary school in the district, but
sometimes, during the 2003 school year, the Plaintiff also worked as a substitute custodian when
custodians were out sick or on vacation. Her lunch monitor shift started at 11:00 a.m., and ended
at 2:30 p.m.; and when she worked as a substitute custodian, she worked from 3:00 p.m. until
11:00 p.m..
Before she worked as a substitute custodian for the District, the Plaintiff’s only custodial
experience consisted of assisting a person named “Ms. Ross” at the Ross School in 1996.
Although the Joint 56.1 Statement does not state whether the Plaintiff worked as a
substitute custodian in 2004 or 2005, it does relate that she did not work as a substitute in 2006,
2007, or 2008. The Plaintiff first inquired into why she had not been asked to work as a substitute
in 2008, when the Defendant informed her that she needed to submit a new application every year.
The Plaintiff submitted an application to work as a substitute custodian on March 13, 2009.
She began work as a substitute custodian on September 4, 2009, and worked between two and
three times per month.
When the District remodeled its high school in the 2010 school year, the Plaintiff was asked
to substitute more frequently. The Plaintiff testified in her deposition that she worked about five
days a week in 2010. That same year, the head custodian of the District’s high school, LC Nelson
(“Nelson”) asked the Plaintiff to work as a substitute for eight straight months. During those eight

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months, the Plaintiff worked the 6:00 a.m. to 3:00 p.m. shift, which was considered a desirable
shift.
The Plaintiff admitted that it was sometimes difficult to finish her assignments because of
the size of the assignments. Later she said that she always finished on time. The Plaintiff testified
that she thought that a male co-worker, Michael Rivas, was assigned a larger area to clean.
On May 9, 2011, the Plaintiff applied for a full-time custodial position. Five individuals,
including the Plaintiff, were interviewed for the position. Three of those five, including the
Plaintiff, were invited back for a second interview. The Plaintiff and one other individual returned
for a third-round interview. The other individual, whose name was Sam Fulford, ultimately
received the position.
The District relies on the affidavit of Adam Fine (“Fine”), who was the principal of the
District’s high school, to support the statement that “Sam Fulford was selected for his position
because of his superior prior work experience and because he was the better overall candidate[,]
[and] [t]he candidates’ race and gender played no role in this decision.” (Def.’s 56.1 Statement at
¶ 17 (citing Def.’s Ex. I, Aff. of Adam Fine)). The Plaintiff contends that Fine’s statements are
subjective opinions, and that there is a question of fact as to whether gender or race played a role
in the decision.
On June 20, 2011, the Plaintiff sent a letter to two members of the District’s administration,
expressing concern that she was not hired for the full time position, and calling into question the
District’s reasons. In the letter she attributed the following statement to Nelson: “The section in
the building is [] one of the two biggest in the school and you won’t have help and you have to set
up for sports and you have to clean the section again after night English/Spanish classes and [] the

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current person in the position sometimes doesn’t have time to take lunch.” (Def.’s Ex. J). The
Plaintiff interpreted Nelson’s statements to mean that she, as a woman, could not handle the job.
Approximately one month later, on August 22, 2011, the Plaintiff filed a complaint with
the Equal Employment Opportunity Commission (the “EEOC”), alleging that the District
discriminated against her based on her gender. The EEOC complaint did not allege racial
discrimination.
On October 3, 2011, the Plaintiff applied for a custodial position at the District’s middle
school. The Plaintiff received the position, and began working as a Custodial Worker I at the
middle school on November 15, 2011. The District did not condition her employment on her
withdrawal of her EEOC complaint. The Plaintiff worked with six other custodians at the middle
school. Three of those custodians were women.
The Defendant states that the District had to make nearly $3 million in cuts to comply with
the State’s 2% tax cap. The Plaintiff contends that this is in dispute, citing generally to “New York
State law,” for the proposition that the cap could have been bypassed with “voter approval.”
On June 22, 2012, the Plaintiff was terminated from her position at the middle school. The
Plaintiff was aware that two males, Angel Jimenez and Michael Rivas, were also terminated at that
time. The Plaintiff contends that the fact that three Hispanics were terminated is further evidence
of racial discrimination.

The Plaintiff has maintained that the District affords preferential

treatment to black men. In support of that contention, the Plaintiff cites to her own interrogatory
responses, which are replete with hearsay. The Court does not consider these responses, because
they are not admissible evidence. See Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) (“[O]nly
admissible evidence need be considered by the trial court in ruling on a motion for summary
judgment.”); see also FED. R. CIV. P. 56(e) (stating that documents submitted in support of and

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against summary judgment “shall set forth such facts as would be admissible in evidence.”
(emphasis added)). The Court also notes that, as discussed below, the Plaintiff’s complaint makes
no mention of racial discrimination.
After the 2011–2012 school year, Edwin R. Rowe, Eric Wolhoff, Frank Sokolowski,
Steven P. Cohen, Patrick T. St. John, Michael Ritsi, and Lawrence Roberts, all males, were also
terminated due to budgetary constraints. However, according to the Defendant’s Exhibit P, none
of those males worked as custodians. They worked as mail couriers, directors of facilities,
classroom teachers, and paraprofessionals. Daniel Hartnett, also a male, had his workload reduced
from full-time to half-time. Daniel Hartnett worked as a speech therapist. The District states that
Sam Fulford was also terminated. The Plaintiff disputes that Fulford was terminated, but the
evidence to which she cites does not support her contention that he was permitted to continue
working after the 2011–2012 school year.
During her employment with the District, the Plaintiff worked with female custodians.
They included Bernarda Beltre, Carmen R. Rodrigo, Martha C. Salazar, Alba Isaza, and Bonnie P.
Hayes.
The Defendant states that “[n]o District administrator gave race as a reason for the
District’s employment decisions. [] Nelson never made any comments about the Plaintiff’s
gender.” (Def.’s 56.1 Statement at ¶ 30 (internal citations omitted)). The Plaintiff again cites to
her own responses to the Defendant’s interrogatories, and broadly to “Plaintiff[’s] deposition
transcripts” to seemingly dispute this claim, though what the Plaintiff is attempting to contend is
unclear.
On September 26, 2012, the District offered an open custodial position to the Plaintiff. The
Defendant states that the position was instead offered to Fulford when the Plaintiff did not agree

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to the terms of the position. The Plaintiff contends that the offer was withdrawn when counsel for
the Plaintiff contacted Kevin Seaman (“Seaman”), counsel to the Defendant. The Plaintiff again
cites broadly to “the Complaint and Interrogatory Responses and Deposition transcripts.” (Pl.’s
56.1 Counterstatement at ¶ 31). The Court notes that the Plaintiff’s deposition transcript only
indicates that she did not speak with the District about the offer, and that her attorney instead spoke
with the District. However, a letter from Seaman to the EEOC states that while the District was
prepared to offer the Plaintiff a new position, it expected that the Plaintiff’s EEOC complaint
would be withdrawn upon acceptance of that offer. (Def.’s Ex. Q).
On December 30, 2013, the EEOC issued a right to sue letter to the Plaintiff. The EEOC
stated that it was “unable to conclude that the information obtained establishes violation of the
statutes.” (Def.’s Ex. R).
B. Relevant Procedural History
The Plaintiff filed her complaint on March 28, 2014. The complaint alleged five causes of
action: Title VII discrimination based on the Plaintiff’s gender; Title VII retaliation; first
amendment retaliation pursuant to Section 1983; deprivation of equal protection pursuant to
Section 1983; and violation of procedural due process pursuant to Section 1983.
The Defendant filed its motion for summary judgment on February 11, 2016.
II. DISCUSSION
A. The Standard of Review
Under FED. R. CIV. P. 56(a), “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” When deciding a motion for summary judgment, “[t]he Court ‘must draw all
reasonable inferences and resolve all ambiguities in favor of the non–moving party.’” Castle Rock

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Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 137 (2d Cir. 1998) (quoting Garza v. Marine
Transp. Lines, Inc., 861 F.2d 23, 26 (2d Cir. 1998)).
“[A]t the summary judgment stage the judge’s function is not [] to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.” Redd
v. N.Y. State Div. of Parole, 678 F.3d 166, 173–74 (2d Cir. 2012) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986) (internal quotation
marks omitted)). In other words, “[c]redibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”
Barrows v. Seneca Foods Corp., 512 F. App’x 115, 117 (2d Cir. 2013) (quoting Redd, 678 F.3d at
174 (internal quotation marks omitted)). The Court should not attempt to resolve issues of fact,
but rather “assess whether there are any factual issues to be tried.” Cuff ex rel. B.C. v. Valley Cent.
Sch. Dist., 677 F.3d 109, 119 (2d Cir. 2012).
The movant has the burden of demonstrating the absence of genuine issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). If a
nonmoving party fails to make a sufficient showing on an essential element of their case where
they will have the burden of proof, then summary judgment is appropriate. Id. at 323. If the
nonmoving party submits evidence which is “merely colorable,” legally sufficient opposition to
the motion for summary judgment is not met. Liberty Lobby, 477 U.S. at 249. The mere existence
of a scintilla of evidence in support of the nonmoving party’s position is insufficient; there must
be evidence on which the jury could reasonably find for that party. See Dawson v. Cty. of
Westchester, 373 F.3d 265, 272 (2d Cir. 2004).

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B. As to the Plaintiff’s Title VII Discrimination Claim
Title VII prohibits various forms of employment discrimination on the basis of race, color,
religion, sex, or national origin. Title VII prohibits both intentional discrimination—known as
disparate treatment—and unintentional discrimination practices which have a disproportionately
adverse effect on a protected class—known as disparate impact. See Ricci v. DeStefano, 557 U.S.
557, 576, 129 S. Ct. 2658, 2672, 174 L. Ed. 2d 490 (2009).
The arguments from each party illustrate a possible misunderstanding of Title VII law. The
Plaintiff’s complaint explicitly states that her Title VII claim is for “disparate impact.” (Complaint
at ¶ 70). The Plaintiff lists several statistics in her complaint, which are often used in support of
charges of disparate impact. The Plaintiff only uses the word “intentional” once in her entire
complaint—and it is used in reference to her First Amendment retaliation claim. The analysis for
a disparate impact claim is distinct from that of intentional discrimination.
A claim of disparate impact focuses on the hiring policies and practices of an employer.
Ricci, 557 U.S. at 578 (“[A] plaintiff establishes a prima facie violation by showing that an
employer uses ‘a particular employment practice that causes a disparate impact on the basis of
race, color, religion, sex, or national origin.’ ” (quoting 42 U.S.C. § 2000e–2(k)(1)(A)(i)); see also
Malave v. Potter, 320 F.3d 321, 325 (2d Cir. 2003) (“To make out a prima facie case of disparate
impact, a plaintiff must (1) identify a policy or practice, (2) demonstrate that a disparity exists, and
(3) establish a causal relationship between the two.” (internal citations omitted)).
A claim of discriminatory failure-to-hire focuses on the acts against the individual plaintiff.
See Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010) (stating that a prima facie case
of discriminatory failure-to-hire is established by showing that (1) [she] is a member of a protected
class, (2) [she] was qualified for the job for which [she] applied, (3) [she] was denied the job, and

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(4) the denial occurred under circumstances that give rise to an inference of invidious
discrimination.”)
Despite the fact that the Plaintiff’s complaint alleges disparate impact, both the Plaintiff
and the Defendant analyzed the Plaintiff’s Title VII discrimination claim as one of intentional
discrimination. Neither of the 56.1 Statements mention any policy or practice. The Court will
therefore analyze the Plaintiff’s Title VII discrimination claim as one for intentional discrimination
or disparate treatment.
Discriminatory failure-to-hire claims (as well as disparate impact claims) are analyzed
under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973), burden shifting framework. Under that test:
a plaintiff complaining of a discriminatory failure to hire must first make out a
prima facie case of discrimination by showing that (1) [she] is a member of a
protected class, (2) [she] was qualified for the job for which [she] applied, (3) [she]
was denied the job, and (4) the denial occurred under circumstances that give rise
to an inference of invidious discrimination. Once the plaintiff has made such a
prima facie showing, the burden shifts to the employer to come forward with a
nondiscriminatory reason for the decision not to hire the plaintiff. If the employer
articulates such a reason, the plaintiff is given an opportunity to adduce admissible
evidence that would be sufficient to permit a rational finder of fact to infer that the
employer's proffered reason is pretext for an impermissible motivation.
Vivenzio, 611 F.3d at 106.
By its silence on the element, the Defendant does not dispute that the Plaintiff, as a female,
is a member of a protected class. Females are a protected class. Leibovitz v. N.Y. City Transit
Auth., 252 F.3d 179, 186 (2d Cir. 2001). The Defendant explicitly “does not dispute that Ms.
Lopez was qualified and performed well at the interviews” for the job. (Def.’s Mem. of Law at
11). It is undisputed that the Plaintiff did not receive the job. Therefore, the Court need only
analyze whether the denial occurred under circumstances giving rise to an inference of
discrimination.
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1. As to whether the denial occurred under circumstances giving rise to an inference
of discrimination
The Plaintiff’s burden at this stage is to prove that “the evidence, taken as a whole, is
sufficient to support a reasonable inference that prohibited discrimination occurred.” James v.
New York Racing Ass’n., 233 F.3d 149, 156 (2d Cir. 2000); see also Schnabel v. Abramson, 232
F.3d 83, 90 (2d Cir. 2000) (courts should examine the entire record to determine whether the
plaintiff could satisfy his “ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff”) (internal citations and quotation marks omitted)).
To defeat the motion for summary judgment the Plaintiff “must present evidence sufficient to
allow a rational factfinder to infer that the employer was actually motivated in whole or in part
by . . . discrimination.” Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997).
“[T]rial courts must be especially chary in handing out summary judgment in
discrimination cases, because in such cases the employer’s intent is ordinarily at issue.” Chertkova
v. Conn. Gen. Life. Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996) (internal citations omitted). “Since it is
rare indeed to find in an employer’s records proof that a personnel decision was made for a
discriminatory reason, whatever other relevant . . . materials are before the district court must be
carefully scrutinized for circumstantial evidence that could support an inference of
discrimination.” Id.
To raise an inference of discrimination, a plaintiff must show that her employer “treated
h[er] less favorably than a similarly situated employee outside h[er] protected group.” Graham v.
Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000); Norville v. Staten Island Univ. Hosp., 196 F.3d
89, 95 (2d Cir. 1999); Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997). The
comparable employee(s) “must be similarly situated in all material respects—not in all respects.”

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McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001) (citing and quoting Shumway, 118
F.3d at 64) (internal quotation marks and emphasis omitted).
Here, the evidence shows that Fulford received the full-time job for which the Plaintiff was
turned down in May 2011. Fulford is a male, and the Plaintiff is a female.
The Defendant argues that Fulford was more qualified than the Plaintiff. First on that point,
the Court notes that there is nothing objective in the Defendant’s 56.1 Statement that lends that
statement credence. The Defendant cites to the affidavit of Fine, who makes a blanket claim that
“Fulford was selected for the position because of his extensive and superior prior work experience
and because the interview committee felt he was the better candidate.” (Def.’s Ex. I at ¶ 10 (italics
added)). The Defendant does not provide evidence for the Court to compare Fulford’s experience
or qualifications with that of the Plaintiff.
As “[t]he movant has the burden of demonstrating the absence of genuine issues of material
fact,” Celotex, 477 U.S. at 323, the Court cannot say that the Defendant has met its burden here.
It is not clear to the Court that there does not exist a question of material fact as to whether the
Plaintiff was similarly situated in all material aspects to Fulford. With the minimal information
before the Court, it appears that they were similar in that they both had custodial experience.
Accordingly, the Court finds a triable issue regarding the discriminatory inference element
of Plaintiff’s prima facie case.
2. As to the Defendant’s Proffered Legitimate Non–discriminatory Reasons
The Defendant argues that it is nevertheless entitled to summary judgment because it has
articulated legitimate, non-discriminatory reasons for not hiring the Plaintiff. In support of this
argument, the District merely restates its conclusory statement that Fulford was more qualified.
The Defendant dedicates an entire page explaining why the Plaintiff’s 56.1 Statement is improper,

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and that the Court must focus on the 56.1 Statements. However, nowhere in the Joint 56.1
Statements does it explain how or even if Fulford was more qualified. The Defendant’s 56.1
Statement merely comments that he had “superior work experience.” This is conclusory and
insufficient.
Therefore, the Court finds that a question of fact exists as to whether the Defendant had
legitimate and non-discriminatory reasons for not hiring the Plaintiff. Accordingly, the Court
denies the Defendant’s motion for summary judgment pursuant to Rule 56 on the Plaintiff’s Title
VII discrimination claim.
3. As to Claims Regarding Racial Discrimination Under Title VII
The Defendant argues that the Plaintiff should not be permitted to bring any claims of racial
discrimination because she did not raise them in her EEOC complaint. The Plaintiff did not
respond to these arguments in any meaningful way, and the Court notes that the Plaintiff did not
allege racial discrimination in her complaint. As the Plaintiff has not alleged racial discrimination
under Title VII, the Court need not address this argument.
4. As to Whether the Plaintiff Can Include Allegations Relating to Her Termination
In Her Discrimination Claim
The Defendant argues that the Plaintiff should not be permitted to include allegations
related to her termination in her discrimination claim because those allegations are not reasonably
related to the charges in her EEOC complaint. It is unclear to the Court why the Defendant felt
compelled to argue this point, because just as the Plaintiff did not allege racial discrimination in
her complaint, the Plaintiff did not allege in her complaint that her termination was the result of
discrimination. However, she has alleged that it was the result of retaliation. As discussed below,
allegations of retaliation that relate to the original charges of discrimination are, by their very
nature, reasonably related. It is not clear from the Defendant’s arguments whether the Defendant
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seeks to foreclose the Plaintiff from making any arguments about her termination, or whether it
seeks to solely foreclose those arguments in relation to charges of discrimination. However,
evidence of the Plaintiff’s termination will be introduced at trial to support her retaliation claim,
and therefore the Court will consider whether those same facts can be used to support her
discrimination claim.
It is well-settled that prior to bringing suit under Title VII, an “employee must timely
exhaust the administrative remedies at h[er] disposal.” Belgrave v. Pena, 254 F.3d 384, 386 (2d
Cir. 2001) (per curiam). In order to exhaust administrative remedies for a Title VII claim, a
plaintiff must raise the claim in a written EEOC complaint in compliance with regulations
promulgated by the EEOC. Id.
Claims not raised in an EEOC complaint, however, may still be brought in federal court if
they are “reasonably related” to the claims asserted in the EEOC complaint. Mathirampuzha v.
Potter, 548 F.3d 70, 76–77 (2d Cir. 2008).
A claim is “reasonably related” to conduct alleged in an EEOC complaint if: (1) “the
conduct complained of would fall within the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of discrimination,” (2) the claim alleges
“retaliation by an employer against an employee for filing an EEOC charge,” or (3) the claim
alleges “further incidents of discrimination carried out in precisely the same manner alleged in the
EEOC charge.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 83 n.6 (2d Cir. 2001) (quoting Butts
v. City of New York Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1402–03 (2d Cir. 1993)).
Here, the Court finds that the Plaintiff’s termination was reasonably related to her EEOC
complaint. Certainly, if the EEOC came to investigate whether the District failed to hire her for
reasons of her gender, the EEOC would also look into whether the District fired her because of her

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gender. See, e.g, Holtz, 258 F.3d at 84 (“[I]t would have been “reasonable to suspect that the
EEOC, in investigating [the plaintiff’s] complaint of failure to train because of age, would have
assessed [the defendant’s] promotion and transfer policies.” (internal citations and quotation marks
omitted)). Furthermore, it is related to her charge of retaliation, and a continuing violation of the
discrimination that she alleged in her complaint. While a plaintiff may not rely on the continuing
violation theory unless she asserted that theory in her administrative proceedings, Fitzgerald v.
Henderson, 251 F.3d 345, 360 (2d Cir. 2001) (citing Miller v. International Telephone &
Telegraph Corp., 755 F.2d at 25), the Plaintiff did that here. In her EEOC complaint, the Plaintiff
said that over the course of a year, four males had been selected for full-time positions over her,
and that the specific instance detailed in her complaint was an example of the District’s continued
practice of affording men preferential treatment.
Accordingly, the Court finds that the Plaintiff’s termination is reasonably related to her
EEOC complaint, and can therefore be used to support her gender discrimination claim.
i. As to whether the Plaintiff has Presented a Prima Facie Case of Gender
Discrimination Related to Her 2012 termination
Again, the Defendant has not met its burden in demonstrating that no issue of material fact
exists as to whether the Plaintiff was terminated under circumstances giving rise to an inference
of discrimination. As stated above, a plaintiff can show that a termination occurred under
circumstances giving rose to an inference of discrimination by showing that similarly situated
individuals outside of the plaintiff’s protected class were treated differently. There is evidence
that male custodians were not terminated. There are no facts before the Court as to whether these
male custodians were similarly situated. Although it is the Plaintiff’s burden to prove a prima
facie case, it is the Defendant’s burden here to show that there is no issue of material fact as to

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whether they were similarly situated. As the Court cannot say that there is no issue of material
fact, the Court denies the Defendant’s motion on that basis.
The Defendant argues that the gender discrimination allegations should be disregarded
nevertheless because the District had legitimate non-discriminatory reasons for terminating the
Plaintiff—namely, that the Disttrict had to make up for a budget shortfall. Assuming that the
District had to make up the difference in the budget shortfall, the Court is unable to conduct any
analysis about the terminations. The Defendant does not provide evidence as to how many
custodians had been on the staff prior to the reduction in force; how many were terminated; and
whether those who were terminated were similarly situated in all material aspects.
Accordingly, the Defendant’s motion for summary judgment on the Plaintiff’s gender
discrimination claim as it relates to her termination is denied.
C. As to the Plaintiff’s Title VII Retaliation Claim
Retaliation claims under Title VII are also assessed using the burden-shifting framework
laid out in McDonell Douglas, 411 U.S. 792. See Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d
Cir. 2013) (“The burden-shifting framework laid out in McDonnell Douglas . . . governs
retaliation claims under [] Title VII”) (citing Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597,
609 (2d Cir. 2006)).
In order to establish a prima facie case of retaliation, a plaintiff must establish “(1) she
engaged in protected activity; (2) the employer was aware of this activity; (3) the employee
suffered a materially adverse employment action; and (4) there was a causal connection between
the alleged adverse action and the protected activity.” Kelly v. Howard I. Shapiro & Assocs.
Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (per curiam) (quoting Lore v. City of
Syracuse, 670 F.3d 127, 157 (2d Cir. 2012)); see also Summa, 708 F.3d at 125; Schiano, 445 F.3d

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at 608. In order to establish this causal connection, a plaintiff must allege (1) direct proof of
retaliatory animus directed against the plaintiff; (2) disparate treatment of similarly situated
employees; or (3) that the retaliatory action occurred close in time to the protected activities.
DeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir. 1987).
“The burden at the summary judgment stage for Plaintiff is minimal and de minimis, and
the court’s role in evaluating a summary judgment request is to determine only whether proffered
admissible evidence would be sufficient to permit a rational finder of fact to infer a retaliatory
motive.” Bowen-Hooks v. City of N.Y., 13 F. Supp. 3d 179, 221 (E.D.N.Y. 2014) (quoting Zann
Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013) (quoting Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005))).
Protected activities under Title VII include both “opposing discrimination proscribed by
the statute and . . . participating in Title VII proceedings.” Jute, 420 F.3d at 173; see also
Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 567 (2d Cir. 2011); Hicks v.
Baines, 593 F.3d 159, 161–62 (2d Cir. 2010).
The District concedes the first three elements, but argues that they are entitled to summary
judgment because there is no question of material fact as to whether there was a causal connection.
Primarily, the District points to the fact that the Plaintiff was hired for a new position after she
filed her EEOC complaint, and was not asked to withdraw it.
However, the Defendant ignores direct proof of retaliatory animus. After the Plaintiff was
terminated, the District sent a letter to the New York EEOC office stating that the Plaintiff could
return to the District in a full-time position if she withdrew her EEOC complaint. (See Def.’s Ex.
Q). While the letter did not make it an explicit requirement, it did say that if the Plaintiff received
a job, the District expected that the EEOC complaint would be withdrawn. Conversely, the letter

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stated that if the resolution was not satisfactory to the Plaintiff, “the pending matter will, of course,
survive.” (Id.). In the Court’s view, this communicated to the Plaintiff and any other employees
seeking to file EEOC complaints that filing such complaints would jeopardize their positions, and
withdrawing such complaints would be rewarded. The Court finds that this is sufficient evidence
of retaliation for a jury to consider. The fact that the Plaintiff received a job after she filed her
EEOC complaint does not defeat the Plaintiff’s Title VII retaliation claim as a matter of law. The
fact that the District fired her and then offered her a new job with the expectation that the complaint
would be withdrawn makes this an unclear issue.
Accordingly, the Defendant’s motion for summary judgment pursuant to Rule 56
dismissing the Plaintiff’s Title VII retaliation claim is denied.
D. As to the Plaintiff’s Section 1983 Claims
1.

Section 1983 Generally

42 U.S.C. § 1983 provides, in relevant part, that “any person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory . . . 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, is liable
to the injured party for damages.”
To state a § 1983 claim, a plaintiff must allege: (1) that the challenged conduct was
“committed by a person acting under color of state law”; and (2) that such conduct “deprived [the
plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United
States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d
545, 547 (2d Cir. 1994)). Section 1983 does not create any independent substantive right, but
rather

is

a

vehicle

to

“redress . . . the

deprivation

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of

[federal]

rights

established

elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999); see also Rosa R. v. Connelly, 889
F.2d 435, 440 (2d Cir. 1989).
2. 1983 Claims Against Municipalities, namely, “Monell Claims”
Here, the sole Defendant is a municipal organization. It is well-established that neither a
municipal organization nor “a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2037, 56 L.
Ed. 2d 611 (1978).

However, section 1983 “extends liability to a municipal organization

where . . . the policies or customs it has sanctioned, led to an independent constitutional violation.”
Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006). “Municipal liability may also be
premised on a failure to train employees when inadequate training ‘reflects deliberate indifference
to . . . constitutional rights.’ ” Okin v. Village of Cornwall–On–Hudson Police Dept., 577 F.3d
415, 440 (2d Cir. 2009) (quoting City of Canton v. Harris, 489 U.S. 378, 392, 109 S. Ct. 1197,
1206, 103 L. Ed. 2d 412 (1989)).
To prevail on a Section 1983 claim against a municipality, a plaintiff must show “that
‘action pursuant to official municipal policy’ caused the alleged constitutional injury.” Cash v.
Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting Connick v. Thompson, 563 U.S. 51, 60,
131 S. Ct. 1350, 1359, 179 L. Ed. 2d 417 (2011)); see also Monell, 436 U.S. at 690–91 (“[L]ocal
governments . . . may be sued for constitutional deprivations visited pursuant to governmental
‘custom’ even though such a custom has not received formal approval through the body’s official
decisionmaking channels”).
A plaintiff can establish the existence of a municipal policy or custom by showing:
(1) the existence of a formal policy which is officially endorsed by the municipality;
(2) actions taken or decisions made by municipal officials with final decisionmaking authority, which caused the alleged violation of plaintiff’s civil rights; (3)
a practice so persistent and widespread that it constitutes a custom of which
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constructive knowledge and acquiescence can be implied on the part of the policy
making officials; or (4) a failure by policymakers to properly train or supervise their
subordinates, amounting to deliberate indifference to the rights of those who come
in contact with the municipal employees.
Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996) (citations omitted).
Therefore, in order to plead any of the following Section 1983 claims, the Plaintiff must
show that there are sufficient facts to support submitting them as Monell claims to a jury.
a. As to the Plaintiff’s First Amendment Retaliation Claim
The Defendant argues that there are no remaining questions of material fact regarding the
Plaintiff’s First Amendment retaliation claim because she did not speak on a matter of public
concern; there was no connection between her EEOC charge and her termination; and the Plaintiff
was hired for a full time position after her EEOC complaint. The Defendant cites no case law in
support of any of these contentions, and the Court does not agree.
The Second Circuit has “described the elements of a First Amendment retaliation claim in
several ways, depending on the factual context.” Williams v. Town of Greenburgh, 535 F.3d 71,
76 (2d Cir. 2008). Where, as here, a public employee brings retaliation claims based on the First
Amendment, the Plaintiff must prove that: “(1) [she] engaged in constitutionally protected speech
because [she] spoke as [a] citizen on a matter of public concern; (2) [she] suffered an adverse
employment action; and (3) the speech was a ‘motivating factor’ in the adverse employment
decision.” Skehan v. Village of Mamaroneck, 465 F.3d 96, 106 (2d Cir. 2006), overruled on other
grounds by Appel v. Spiridon, 531 F.3d 138, 140 (2d Cir. 2008).
However, the Defendant may still “escape liability if [it] can demonstrate that either (1) the
[D]efendant would have taken the same adverse action against the [P]laintiff regardless of the
[P]laintiff’s speech; or (2) the [P]laintiff’s expression was likely to disrupt the government’s
activities and that the harm caused by the disruption outweighs the value of the plaintiff's
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expression.” Skehan, 465 F.3d at 106. The latter is known as the “Pickering balancing test” and
is a question of law for the Court. See Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir. 2004) (referring
to Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S .Ct. 1731, 20 L. Ed. 2d 811 (1968)). Even if
the government prevails on the Pickering test, plaintiff may still succeed by showing that the
adverse action was in fact motivated by retaliation and not by any fear of a resultant disruption.
See Reuland v. Hynes, 460 F.3d 409, 415 (2d Cir. 2006). The Defendant did not argue that it was
entitled to summary judgment based on the Pickering test.
Here, the Plaintiff was clearly engaged in constitutionally protected speech by complaining
about gender discrimination. See Konits v. Valley Stream Cent. High School Dist., 394 F.3d 121,
125 (2d Cir. 2005) (“Gender discrimination in employment is without doubt a matter of public
concern. Indeed, we have held repeatedly that when a public employee’s speech regards the
existence of discrimination in the workplace, such speech is a matter of public concern.”) (citing
Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144, 150 (2d Cir. 2000) (“Gender discrimination
is a problem of constitutional dimension, and the efforts ... to combat it clearly relate to a matter
of public concern.”)); Brown v. City of Syracuse, No. 5:01–CV–1523 (FJS/DEP), 2008 WL
5451020, at *3 (N.D.N.Y. Dec. 31, 2008) (“The Second Circuit has permitted a First Amendment
retaliation claim based on the filing of discrimination complaints.” (citing Washington v. Cty. of
Rockland, 373 F.3d 310, 320 (2d Cir. 2004)).
Furthermore, as discussed above, the Court believes there is an issue of fact as to whether
the Plaintiff’s EEOC complaint was a motivating factor in her termination. The Plaintiff has
presented more than a mere scintilla of evidence by providing the Court with the letter from the
District offering the Plaintiff a new job on the condition that she withdraw her complaint.

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As the Court already found that the Defendant has not sufficiently demonstrated that there
is no issue of material fact as to whether it terminated the Plaintiff for legitimate, nondiscriminatory reasons, the Court similarly finds that there are issues of material fact as to whether
the District would have terminated the Plaintiff regardless of her EEOC complaint.
Furthermore, the Court disagrees with the Defendant’s contention that the Plaintiff has not
presented any facts to support a Monell violation. As stated above, a plaintiff can establish a
custom or policy by showing that a policymaker with final decision-making authority took action
that lead to the deprivation of the Plaintiff’s rights. The undisputed facts state that the District
terminated the Plaintiff; and the Superintendent of Schools of the District sent the Plaintiff the
letter that informed her of her termination. It is not clear from the facts before the Court who is
the final decision-maker in the District. “[The Plaintiff’s] [S]ection 1983 claim against the School
District may stand if it is determined that [] [] the superintendent[] has final policy making activity
attributable to the School District.” Tekula v. Bayport-Blue Point Sch. Dist., 295 F. Supp. 2d 224,
234 (E.D.N.Y. 2003) (Spatt, J.); see also Solomon v. Southampton U.F.S.D., No. CV 08-4822 SJF
ARL, 2010 WL 3780696, at *5 (E.D.N.Y. June 24, 2010) (stating that superintendent may be final
decision maker of school district), report and recommendation adopted, No. 08-CV-4822 SJF
ARL, 2010 WL 3780976 (E.D.N.Y. Sept. 17, 2010).
Even if the Court were to find that the superintendent is not the final decision maker in the
District, the undisputed facts impute the decision to terminate the Plaintiff to the District itself. A
decision made by an administrative body of a municipality would qualify as official policy. “Even
one episode of illegal retaliation may establish municipal liability under § 1983 if ordered by a
person whose edicts or acts represent official city policy.” Gronowski v. Spencer, 424 F.3d 285,
296 (2d Cir. 2005).

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b. As to the Plaintiff’s Procedural Due Process Claim
The Defendant argues that the Plaintiff cannot prove a Section 1983 procedural due process
claim because she has not presented any evidence that she had a property interest in her position.
On this point, the Court agrees.
In order to “plead a violation of procedural due process, . . . a plaintiff must first identify a
property right, second show that the government has deprived him of that right, and third show
that the deprivation was effected without due process.” J.S. v. T’Kach, 714 F.3d 99, 105 (2d
Cir. 2013) (internal alteration, emphasis, and internal citations omitted); see also Chrebet v. Cty.
of Nassau, 24 F. Supp. 3d 236, 244 (E.D.N.Y. 2014) (same), aff’d, 606 F. App’x 15 (2d Cir. 2015).
The Second Circuit teaches that “[t]he threshold issue is always whether the plaintiff has a
property . . . interest protected by the Constitution.” Morales v. New York, 22 F. Supp. 3d 256, 276
(S.D.N.Y. 2014) (quoting Narumanchi v. Bd. of Trs., 850 F.2d 70, 72 (2d Cir. 1988)). “Such
property interests cannot be found on the face of the Constitution, but rather ‘are created, and their
dimensions are defined by, existing rules or understandings that stem from an independent source
such as state law-rules or understandings that secure certain benefits.’” Looney v. Black, 702 F.3d
701, 706 (2d Cir. 2012) (internal alterations omitted) (quoting Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)).
“An employee has a property interest in his or her position only where he or she cannot be
discharged in the absence of good cause.” Roche v. O'Meara, 175 F. Supp. 2d 276, 283 (D. Conn.
2001) (citing Moffit v. Town of Brookfield, 950 F.2d 880 (2d Cir. 1991); Stein v. Bd. of the City of
N.Y., 792 F.2d 13 (2d Cir. 1986)).
The Plaintiff has not presented any evidence that she had a property interest in her custodial
position, “e.g., a collective bargaining agreement, a contract, or an engagement letter which would

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vest a right or interest that requires due process protection.” Bryant v. S. Country Cent. Sch. Dist.,
No. 214CV5621(DRH)(ARL), 2017 WL 1216553, at *18 (E.D.N.Y. Mar. 31, 2017); see also
Perry v. Sindermann, 408 U.S. 593, 599, 92 S. Ct. 2694, 2698–99, 33 L. Ed. 2d 570 (1972) (stating
that a lack of formal contractual or tenure security in continued employment as a teacher is “highly
relevant” to procedural due process claim). “[A]n at-will government employee . . . generally has
no [procedural due process] claim based on the Constitution at all.” Waters v. Churchill, 511 U.S.
661, 679, 114 S. Ct. 1878, 1890, 128 L. Ed. 2d 686 (1994); see also Luck v. Mazzone, 52 F.3d 475,
477 (2d Cir. 1995). The Plaintiff has not presented any legal authority to support her contention
that she had a property interest in her custodial position, nor has the Court found any. Therefore,
no rational fact-finder could find in the Plaintiff’s favor on her procedural due process claim.
Accordingly, the Defendant’s motion for summary judgment dismissing the Plaintiff’s
Section 1983 procedural due process claim pursuant to Rule 56 is granted.
c. As to the Plaintiff’s Equal Protection Claim
The Defendant contends that the Plaintiff’s equal protection claim fails for the same
reasons that it argued that her Title VII discrimination claim failed. The Court finds that the
Plaintiff’s equal protection claim survives the Defendant’s motion for the same reasons that her
Title VII discrimination claim also has survived.
“A § 1983 claim has two essential elements: (1) the defendant acted under color of state
law; and (2) as a result of the defendant's actions, the plaintiff suffered a denial of h[is] federal
statutory rights, or h[is] constitutional rights or privileges.” Annis v. Cty. of Westchester, 136 F.3d
239, 245 (2d Cir. 1998). “ Most of the core substantive standards that apply to claims of
discriminatory conduct in violation of Title VII are also applicable to claims of discrimination in
employment in violation of [] [] the Equal Protection Clause . . . .” Patterson v. Cty. of Oneida,

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N.Y., 375 F.3d 206, 225 (2d Cir. 2004) (citing Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir. 1996)
(“[W]hen § 1983 is used as a parallel remedy with Title VII in a discrimination suit, as it is here,
the elements of the substantive cause of action are the same under both statutes.”); Sorlucco v.
New York City Police Department, 888 F.2d 4, 6–7 (2d Cir. 1989) (same) (further internal citations
omitted)).
“Title VII claims for disparate treatment parallel the equal protection claims brought under
§ 1983. The elements of one are generally the same as the elements of the other and the two must
stand or fall together.” Demoret v. Zegarelli, 451 F.3d 140, 153 (2d Cir. 2006) (quoting Feingold
v. New York, 366 F.3d 138, 159 (2d Cir. 2004) (internal quotation marks omitted)). “[T]he
difference being that a § 1983 claim, unlike a Title VII claim, can be brought against individuals.”
Id. at 149
For the same reasons that the Court finds that there are triable issues of fact relating to the
Plaintiff’s Title VII discrimination claim, the Court finds that there are triable issues of fact relating
to the Plaintiff’s Section 1983 Equal Protection claim. See, e.g, Demoret, 451 at 153 (dismissing
Title VII claims based on the Court’s analysis of the plaintiff’s Section 1983 claims). The Court
finds that as the undisputed facts show that the Plaintiff was terminated by the District, and
informed of that decision by the superintendent of the district, the Plaintiff has presented sufficient
evidence to survive a motion for summary judgment on her Monell claim.
Accordingly, the Defendant’s motion for summary judgment dismissing the Plaintiff’s
Section 1983 equal protection claim is denied.
III. CONCLUSION
Accordingly, for the reasons stated above, the Defendant’s motion for summary judgment
dismissing the Plaintiff’s claims is granted in part and denied in part. It is granted to the extent

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that the Plaintiff’s Section 1983 procedural due process claim is dismissed. It is denied with regard
to the following claims made by the Plaintiff: the Title VII discrimination claim; the Title VII
retaliation claim; the Section 1983 First Amendment retaliation claim; and the Section 1983 equal
protection claim, as each of these claims have triable issues of fact.
As directed by United States Magistrate Judge Steven I. Locke, the parties are to notify
Judge Locke of this Court’s decision within ten days of the entry of the Order.

It is SO ORDERED:
Dated: Central Islip, New York
May 20, 2017
______/s/ Arthur D. Spatt________
ARTHUR D. SPATT
United States District Judge

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