A divided panel of New York's Appellate Division, First Department, voted 3-2 to allow a lesbian who was employed as a school aide at P.S. 181 in Brooklyn to pursue her retaliation and sexual orientation discrimination claims against the New York City Department of Education (DOE) and school principal Lowell Coleman. The trial judge, New York County Superme Court Justice Cynthia S. Kern, had granted summary judgment to the defendants on the retaliation claim but had denied summary judgment on the discrimination claim. The plaintiff seeks $2 million in damages for defamation, retaliation and discrimination. Sandiford v. City of New York Department of Education, 2012 Westlaw 1392947 (April 24, 2012).
According to the opinion for the majority of the Appellate Division panel, the plaintiff, Ayodele Sandiford, has been a school aide since May 2001. During the 2004/2005 school year, she was assigned to P.S. 181 (grades K-8), where Lowell Coleman is the Principal. Sandiford claims that Coleman made frequent derogatory remarks about gays and lesbians in her presence, and in the presence of students and teachers.
According to Sandiford, Coleman said that "two men should not be behind closed doors," and "whatever two men is [sic] doing behind closed door[s], God would judge them for Himself." She also alleged that Coleman had said that "his church can change people like us for the better," and that "while acting out an obscene walk, 'this is how faggots walk.'" Coleman also reportedly "admonished students for using the word 'lesbian'." Sandiford also alleged that she had complained about certain staff members "who had teased her, taunted her with notes in her locker and made lewd comments to her."
In March 2005, Sandiford was suspended without pay pending an investigation by the Department of Education's Office of Special Investigation (OSI). Colemand had submitted a complaint from an 18-year-old college student, who claimed that Sandiford, a co-worker in the after-school program, had tried to date her, even though Sandiford had been informed that the student was not a lesbian. According to the allegations against Sandiford, she had phoned a 16-year-old high school student who worked in the after-school program, and asked the student to "hook her up" with the college student. When the 16-year-old student allegedly told Sandiford to "leave it alone" because the college student was not a lesbian, Sandiford ended the call and then called the college student, who rebuffed her.
After being placed on suspension, Sandiford met with her union representative and an OSI investigator, and complained about Coleman's treatment of her. She also lodged a complaint with the Chancellor's office in April 2005. These complaints apparently drew no response. The OSI investigation, which involved interviewing both students and Sandiford (in the presence of her union representative), substantiated the allegations against her, concluding that she "had used her position as an employee of the NYC Department of Education in an attempt to engage in a personal relationship. [She] utilized a sixteen year old Department of Education student to assist her in doing so. [She] engaged a sixteen year old Department of Education Student in inappropriate conversation." The OSI report recommended terminating her and putting her on a list that would preclude her from being hired in the future by DOE.
In late June 2005, Sandiford met with Coleman, who allegedly "berated, belittled and reprimanded" her for complaining to DOE about his treatment of her. Coleman told her that the OSI report had substantiated the allegations against her and recommended her termination, and that he had decided to terminate her. Sandiford claims that during that meeting, Coleman told her that she "caused this upon yourself" for complaining about him. At that meeting, Sandiford denied having done anything inappropriate with the high school student or the college student co-worker.
Sandiford appealed her termination to the Chancellor's office, which issued a grievance decision on December 15, 2006, finding that the incident happened as described in the OSI report, but concluding, "although inappropriate, the grievant's conduct in this matter did not warrant discharge." DOE reinstated Sandiford with back-pay less two weeks, and put a warning letter in her file. Sandiford did not appeal the Chancellor's decision that she had engaged in inappropriate conduct, instead filing this lawsuit. In addition to her claim that she had been defamed and discriminated against in violation of the City and State human rights laws, she also asserted a state constitutional claim.
The appeal before the Appellate Division concerned Justice Kern's ruling granting summary judgment to the defendants on the retaliation claim and denying summary judgment on the discrimination claims. The defendants argued on appeal that the Chancellor's ruling on the grievance, which she did not directly apepal, was a final judgment that Sandiford engaged in inappropriate conduct. Consequently, she should be barred from relitigating that issue in the context of a discrimination claim, which would mean that they would prevail in defense of their initial decision to terminate her. In her own appeal, Sandiford argued that there remained contested issues of fact concerning the motivation for her termination, precluding a grant of summary judgment.
The majority of the Appellate Division panel seemed to be very impressed by the evidence of Coleman's anti-gay statements, finding that Sandiford's deposition testimony about these statements "was sufficient to raise a question of fact as to plaintiff's claim alleging unlawful discriminatory practices under the New York City Human Rights Law…, the uniquely broad and remedial provisions of which are liberally construed to provide expansive protections not afforded by their state and federal counterparts."
The court continued, "This Court has made clear that where a plaintiff 'responds with some evidence that at least one of the reasons proffered by defendant is false, misleading or incomplete, a host of determinations properly made only by a jury come into play, and thus such evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied. Moreover, in light of plaintiff's testimony regarding Coleman's comments and conduct, the record did not conclusively establish that defendants would have made the same decision to terminate plaintiff's employment had they not considered plaintiff's sexual orientation. Thus, there being triable issues of fact, summary judgment was precluded insofar as the complaint alleged unlawful discrimination under the New York State Human Rights Law."
On the retaliation claim, the court asserted that "summary judgment is precluded by triable issues of fact as to whether, within the context of this matter and the workplace realities as demonstrated by the record, plaintiff's termination from employment would be reasonably likely to deter other persons in defendants' employ from engaging in protected activity." The court also said that Sandiford had made a "prima facie showing that her termination was the direct result of retaliatory animus," and thus there remained a jury question whether defendants' explanation — essentially, implementation of OSI's recommendation — was "pretextual."
Justice James Catterson wrote a lengthy, detailed dissenting opinion, joined by Justice Dave Saxe. Catterson argued that Justice Kern's decision to grant summary judgment on the retaliation claim should have been affirmed, and that her denial of summary judgment on the discrimination claims should have been reversed.
Catterson pointed out that by not appealing the Chancellor's grievance decision, Sandiford had conceded that the charges against her were true. "In focusing on the principal's alleged derogatory remarks, the majority gives no weight to the fact that the misconduct charges against the plaintiff were investigated and substantiated…, and that the DOE then recommended that the principal terminate plaintiff. Regardless of any remarks made by the principal, it was the plaintiff's burden to 'respond with some evidence that at least one of the reasons proffered by defendant is false, misleading or incomplete,' and the plaintiff entirely failed to do so."
Catterson emphasized the nature of the charges against Sandiford. "As a threshold matter," he wrote, "the plaintiff's claims should be viewed in the context of overriding public policy that seeks to protect children from predatory teachers regardless of whether the teacher is heterosexual or homosexual." He cited a long string of rulings upholding discipline, including terminations, of DOE employees who had made sexual comments, either in person or through emails, to students, and noted in particular a recent ruling by the state's highest court, upholding a 90-day suspension of a teacher who engaged in "inappropriate communication" with a 15-year-old student in her class. "The court acknowledged that the state has a broad public policy of protecting children," he observed.
In light of that, and the OSI report substantiating the allegations against Sandiford, which were upheld by the Chancellor and not appealed further, Catterson argued that Sandiford had failed to allege a valid claim of discrimination or retaliation. Catterson invoked a legal doctrine called "collateral estoppel," under which a matter that has been determined in a prior legal proceeding cannot be relitigated in a new legal proceeding.
The majority had claimed that Sandiford never had an opportunity in the grievance process for a full airing of her discrimination claim, so she should not be barred from raising it in this case. The termination grievance focused entirely on her conduct, as it was about the decision to discipline her based on the telephone incidents with the students. Catterson argued that there was no indication that Sandiford was denied an opportunity to defend herself in that proceeding. "As such," he wrote, "the plaintiff cannot argue that the principal's reason for terminating her, her inappropriate conduct with a 16-year-old student, is false. Therefore, under a pretext analysis, her discrimination claim must fail."
To Catterson, the majority's focus on Coleman's anti-gay comments was misplaced, because "the record reflects that the principal followed DOE policy in reporting the allegations. More significantly, at the time the principal made his decision to terminate the plaintiff, he was in receipt of a DOE report that substantiated her misconducted and recommended her termination. In my view, it is clear that this documentation induced the principal to terminate the plaintiff, and he would have done so no matter what her sexual orientation."
In other words, the issue isn't whether Coleman was loudly anti-gay; the issue is whether his actions against Sandiford were justified.
Catterson also invoked a frequently-made argument in cases where biased comments by a decision-maker are discounted by the court because they were not made close in time to the challenged decision. Here, the comments attributed to Coleman were not closely associated in time with his decision to report the allegations, suspend Sandiford, and ultimately terminate her so, Catterson argued, they should be discounted.
Catterson also differed with the majority on their revival of the retaliation claim, noting that Coleman had denied making the comments attributed to him in Sandiford's account of the termination interview, and that, in any event, it was clear that the reason for terminating her, the OSI report and recommendation, was not pretextual. He also noted that Coleman suspended her before she complained to her union and DOE about his anti-gay comments, so the suspension could not have been in retaliation for her complaints. "As with her termination claim," wrote Catterson, "she does not raise a triable issue of fact that the reasons for her termination were false and/or that the principal would not have made the same decision regardless of her complaints."
Given the sharply divided decision by the Appellate Division, the defendants, represented by the Corporation Counsel's office, are likely to seek review in the Court of Appeals. Colleen M. Meenan represents Sandiford, and Mordecai Newman from the Corporation Counsel's Office represents the defendants.