Bell v. Wyandanch Union Free School District et al

Filing 64

MEMORANDUM & ORDER granting in part and denying in part 48 Motion for Summary Judgment. SO ORDERED that Defendants' motion for summary judgment is denied as to Plaintiffs retaliation claim, and granted as to the constructive discharge claim. The parties are directed to confer and to, by July 7, 2017, electronically file a letter proposing trial dates in November and December 2017. Ordered by Judge Leonard D. Wexler on 6/20/2017. (Florio, Lisa)

FILED
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JESSIE BELL,

Plaintiff,

JUN 2 0 2017

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LONG ISLAND OFFICE
MEMORANDUM AND ORDER

15-CV-0772
(Wexler, J.)

-againstWYANDANCH UNION FREE SCHOOL
DISTRICT, WYANDANCH UNION FREE
SCHOOL DISTRICT BOARD OF EDUCATION,
and DR. MARY JONES, individually and in her
official capacity,
Defendants.

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APPEARANCES:

JONATHAN A. TAND & ASSOCIATES, P.C.
By:
Jonathan A. Tand, Esq.
990 Stewart Avenue, Suite 225
Garden City, New York 11530
Attorney for Plaintiff
MORRIS DUFFY ALONSO & FALEY
By:
Kenneth E. Pitcoff, Esq. and Courtney F. Chenette, Esq.
2 Rector Street, 22"d floor
New York, New York 10006
Attorneys for Defendants
WE){LER, District Judge:
Plaintiff Jessie Bell commenced this action against defendants Wyandanch Union Free
School District (the "District"), Wyandanch Union Free School District Board of Education (the
"Board"), and Dr. Mary Jones, the District Superintendent, alleging that because of his
participation in legal proceedings, he was retaliated against and constructively discharged from
his employment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"),
42 U.S.C. § 2000e et seq. and the First Amendment of the U.S. Constitution. Currently before

the Court is Defendants' motion for summary judgment. See Motion, Docket Entry ("DE") [48].
For the reasons set forth herein, the motion is granted in part and denied in part.

I. BACKGROUND
Plaintiff was employed by the District as a Junior ROTC ("JROTC") instructor at
Wyandanch High School. JROTC instructors were not members of the teachers' union, but
rather were contract employees retained on year-to-year agreements. The Board, consistent with
New York State Law, passed annual resolutions setting Plaintiffs compensation. Neither the
Superintendent nor an individual member of the Board has the authority to set plaintiffs salary
absent a resolution by the Board. These resolutions were then reflected in salary letters sent to
Plaintiff, who signed the letters below the statement "I accept the above salary and conditions of
employment." After the Board's resolution each year, an employment contract was executed.
For the 2011-12 school year, the Board resolved to pay plaintiff$105,000. For the 201213 school year, plaintiff's salary was reduced to $80,000. The reduction was based upon student
allegations of misconduct by Plaintiff. The $25,000 salary decrease from the 2011-12 to the
2012-13 school years does not form the basis of this lawsuit.
For the 2013-14 school year, the Board voted to raise plaintiffs salary to $90,000. A
salary letter dated July 1, 2013 and signed by then-Superintendent Pless Dickerson reflected the
Board's resolution to pay him $90,000, and Plaintiff signed this letter on September 16, 2013.
In November 2013, Plaintiff executed an Employment Agreement that, inconsistent with the
earlier Board resolution and the salary letter, set his salary for the 2013-14 school year at
$105,000. 1 The words "BOARD OF EDUCATION WYANDANCH UNION FREE SCHOOL

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The parties generally refer to the contractual salary as $105,000 despite the fact that the amount in the
Employment Agreement was $105,353. To avoid confusion, the Court adopts the parties'
characterization of his salary amount as $105,000.
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DISTRICT" appear below the agreement's clauses and above the signatures. The Employment
Agreement was signed by Plaintiff, Superintendent Dickerson, and Board President Nancy
Holliday, and countersigned and attested by Stephanie Howard, the District Clerk. Despite the
fact that no second resolution was passed regarding Plaintiffs salary for the 2013-14 school
year, he was paid at the contractual rate of$105,000.
In January 2014, Dr. Jones testified that she became Acting Superintendent for the
District. By letter dated April 24, 2014, Plaintiff requested review and renewal of his contract
earlier than usual, asking that it be renewed before the expiration of his current contract on June
30, 2014. Sometime between April and June 2014, Dr. Jones learned that Plaintiff was being
compensated in excess of the $90,000 amount set by Board resolution.
On or about June 3, 2014, Plaintiff testified in a civil action on behalf of Larry McCord, a
former Wyandanch UFSD employee who was suing the District. Defendant Jones also attended
that deposition. The next day, June 4, 2014, Plaintiff met with Jones. The parties dispute
whether Jones called the meeting or Plaintiff requested it earlier that day. During this meeting,
Jones informed Plaintiff of the discrepancy between the salary amounts in the Board resolution,
salary letter, and employment agreement. By vote on June 27, 2014, the Board resolved to
compensate plaintiff$90,000 for the 2014-15 school year. Although Jones testified that she had
no role in Plaintiff's contract or salary for that year, the resolution states that the Board's
decision was made "upon the recommendation of the Acting Superintendent of Schools."
Defendants took no steps to demand repayment by Plaintiffofthe $15,000 discrepancy
between the Board's resolution and the employment agreement for the 2013-14 school year.
In March 2015, notified his employer in writing that he intended to resign effective June
30, 2015. Using a standard form that lists reasons for resignation, he selected "Retire" and

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"Medical" as reasons. He did not select the reason "Contract not renewed/Adverse Action" and
none of the additional documents submitted by Plaintiffto the District's Human Resource
Department referenced a reason for his retirement. Prior to retiring, he did not ask what his
compensation would be for the following 2015-16 school year.

II. DISCUSSION
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
appropriate only 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." FED. R. CIV. P. 56(a); see Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505 (1986). In determining a motion for
summary judgment, the court "is not to weigh the evidence but is instead required to view the
evidence in the light most favorable to the party opposing summary judgment, to draw all
reasonable inferences favor of that party, and to eschew credibility assessments." Amnesty Am. v.

Town ofW Hartford, 361 F.3d 113, 122 (2d Cir. 2004). After the moving party has met its
burden, the opposing party "'must do more than simply show that there is some metaphysical
doubt as to the material facts .... [T]he nonmoving party must come forward with specific facts
showing that there is a genuine issue for trial."' Caldarola v. Calabrese, 298 F.3d 156, 160 (2d
Cir.2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 415 U.S. 574,586-87,
106 S.Ct. 1348 (1986)).
The Court has reviewed the parties' submissions and concludes that issues of fact exist
that preclude summary on the retaliation claim. The issues include, inter alia, whether the
setting ofPlaintiffs salary for the 2014-15 school year constituted an adverse employment
action, whether the Board had a non-retaliatory reason for setting his compensation for that

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school year, and whether retaliation for Plaintiffs testimony was the cause of the Board's
decision. Accordingly, Defendants' motion to dismiss the retaliation claim is denied.
Plaintiff also claims that his resignation amounted to a constructive discharge. "An
employee is constructively discharged when his employer, rather than discharging him directly,
intentionally creates a work atmosphere so intolerable that he is forced to quit involuntarily."
Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d Cir. 2003). Whether the work environment is

intolerable is assessed objectively from the viewpoint of a reasonable person in plaintiffs shoes.
See Serricchio v. Wachovia Sec. LLC, 658 F.3d 169, 185 (2d Cir. 2011) (noting that "[w]orking

conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the
employee's shoes would have felt compelled to resign."). Here, Plaintiff argues that he was
forced to resign because "Defendants created intolerable working conditions by way of a
reduction in Plaintiffs salary, contrary to Plaintiffs reasonable expectations of a pay raise."
Pl.'s Memorandum ofLaw in Opposition at 10. Plaintiff does not, however, cite any conduct
occurring between the Board's resolution setting his salary in June 2014 and his submission of
retirement papers in March 2015. "[W]hen a plaintiff remains in a position after conduct which
is allegedly designed to force him or her to resign, it undermines any claim of intolerable
working conditions." Butts v. N.Y. City Dep't of Hous. Pres. and Dev., No. 00 CV 6307,2007
WL 259937, at *20 (S.D.N. Y. Jan. 29, 2007), affd, 307 F. App'x 596 (2d Cir. 2009). In short,
Plaintiff has pointed to no evidence that would allow a reasonable jury to conclude that his
retirement over eight months after the Board's decision was tantamount to a constructive
discharge. Cf Scott v. Harris Interactive, Inc., 512 F. App'x 25, 28 (2d Cir. 2013) (issue of
material fact existed where salary reduction of almost 32% was coupled with changes in title and
responsibilities, and there was evidence of repeated comments suggesting plaintiff resign).

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Accordingly, Defendants' motion to dismiss this claim is granted.

IV. CONCLUSION
Defendants' motion for summary judgment is denied as to Plaintiffs retaliation claim,
and granted as to the constructive discharge claim. The parties are directed to confer and to, by

July 7, 2017, electronically file a letter proposing trial dates in November and December 2017.

SO ORDERED.

//; /~ t/ ~EONARD D. WEXLER

I JUDGE
UNITED STATES DISTRICT

Dated: Central Islip, New York
June 20, 2017

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