Oliver

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

AKEEM OLIVER,

Plaintiff,

MEMORANDUM

- against - OPINION & ORDER

CITY OF NEW YORK, JOSEPH GONZALEZ, in his 19 Civ. 11219 (PGG)

personal and official capacity as a Sergeant of the New York

City Police Department, KENNETH J. TAYLOR in his

personal and official capacity as an Officer of the New York

City Police Department, KEVIN MCLEOD, in his personal

and official capacity as an Officer of the New York City

Police Department, TONG JIANG, in his personal and

official capacity as an Officer of the New York City Police

Department, BOARD OF EDUCATION OF THE CITY

SCHOOL DISTRICT OF THE CITY OF NEW YORK,

CARRY CHAN, in her personal and official capacity as

Superintendent of School District 1, KRISTINE

MUSTILLO, in her personal and official capacity as Deputy

Community Superintendent of School District 1 and

SONHANDO ESTWICK, in his personal and official

capacity as principal of Tompkins Square Middle School,

Defendants.

PAUL G. GARDEPHE, U.S.D.J::

Plaintiff Akeem Oliver — a New York City public school teacher — brings claims

against officers of the New York City Police Department (the “NYPD”) for false arrest in

violation of 42 U.S.C. § 1983 and New York law. (Fourth Am. Complaint (“FAC”) (Dkt. No.

195) 169-74, 179-84) He also asserts claims for discrimination, hostile work environment,

retaliation, and violation of his due process rights against the New York City Department of

Education (the “DOE”) and certain of its employees. (Id. {J 175-78, 190-282)

The parties have cross-moved for summary judgment. Oliver seeks summary

judgment on his false arrest claims (FAC (Dkt. No. 195) Counts One and Three), and his

retaliation claims (id., Counts Seven, Ten, Eleven, Sixteen, Nineteen, Twenty, and Twenty-One).

(Pltf. Mot. (Dkt. No. 241)) Defendants seek summary judgment on all of Oliver’s claims. (Def.

Mot. (Dkt. No. 235)) For the reasons stated below, Oliver’s motion for summary judgment will

be denied, and Defendants’ motion for summary judgment will be granted as to Oliver’s (1) due

process claim (Count Two); (2) discrimination claims (Counts Five, Eight, Fourteen, and

Seventeen); (3) hostile work environment claims (Counts Six, Nine, Fifteen, and Eighteen); (4)

claims against Defendants Chan and Mustillo (Counts Eleven, Thirteen, and Twenty); (5) Monell

claim against the DOE (Count Twelve); (6) compensatory damages claims to the extent they are

premised on lost per-session wages; and (7) punitive damages claims as against the DOE, Chan,

and Mustillo, and any punitive damages claim against Estwick under Title VII. Defendants’

motion will otherwise be denied.

BACKGROUND

I THE PARTIES

Plaintiff Oliver is a Black, male, special education teacher at Tompkins Square

Middle School “Tompkins” or the “School”), where he began teaching in 2011. (Pltf. R. 56.1

Stmt. (Dkt. No. 243) § 1; Def. R. 56.1 Resp. (Dkt. No. 252) {fj 109, 111)!

! To the extent that this Court relies on facts drawn from a party’s Local Rule 56.1 statement, it

has done so because the opposing party has either not disputed those facts or has not done so

with citations to admissible evidence. See Giannullo v. City of New York, 322 F.3d 139, 140

(2d Cir. 2003) (“If the opposing party . . . fails to controvert a fact so set forth in the moving

party’s Rule 56.1 statement, that fact will be deemed admitted.”) (citations omitted).

Where a party disputes a movant’s characterization of cited evidence and has presented an

evidentiary basis for doing so, the Court relies on the non-movant’s characterization of the

evidence for purposes of resolving the motion. See Cifra v. Gen. Elec. Co., 252 F.3d 205, 216

(2d Cir. 2001) (court must draw all rational factual inferences in non-movant’s favor in deciding

summary judgment motion). Unless otherwise indicated, the facts cited by the Court are

undisputed or deemed undisputed for the reasons discussed above.

Defendant DOE is a municipal corporation organized under the laws of the State

of New York.2 The DOE operates all public schools in New York City. (Pltf. R. 56.1 Stmt.

(Dkt. No. 243) 4)?

Defendant Joseph Gonzalez is a sergeant in the NYPD (Pltf. R. 56.1 Stmt. (Dkt.

No. 243) 9 51; see Def. R. 56.1 Stmt. (Dkt. No. 237) 92), while Defendants Kenneth J. Taylor,

Kevin McLeod, and Tong Jiang are all NYPD officers. (See Def. R. 56.1 Stmt. (Dkt. No. 237)

Defendant Carry Chan is the Superintendent of DOE District 1 public schools,

including Tompkins (Pltf. R. 56.1 Stmt. (Dkt. No. 243) { 6), while Defendant Kristine Mustillo

is the Deputy Community Superintendent of District 1 schools. (Id. { 8) Defendant Sonhando

Estwick is Tompkins’ principal. (Id. § 11)

II. FACTS

A. Pre-Arrest Events

Oliver began his teaching career at DOE in 2007 (Pltf. R. 56.1 Stmt. (Dkt. No.

243) § 1), and he joined the faculty at Tompkins in 2011. (Id. § 16) That same year, the DOE

awarded Oliver tenure. (Id. { 15)

Oliver has brought multiple legal proceedings against Principal Estwick and the

DOE. In 2014, he filed a complaint with the DOE’s Office of Equal Opportunity against

Estwick, alleging racial discrimination. (Id. § 23) The record does not disclose whether or how

that complaint was resolved.

2 Although the FAC names the City of New York as a defendant, it does not assert any claims

against the City. Accordingly, the City is dismissed as a defendant in this action.

3 Except for deposition transcripts, the page numbers of documents referenced in this opinion

correspond to the page numbers designated by this District’s Electronic Case Files (“ECF”)

system. Deposition page numbers refer to the pagination assigned by the court reporter.

In 2014, Oliver brought an arbitration proceeding against the DOE concerning an

“ineffective” rating he received from Estwick for the 2013-14 academic year at Tompkins. (Def.

R. 56.1 Resp. (Dkt. No. 252) § 24; Def. R. 56.1 Stmt. (Dkt. No. 237) J 8) In 2015, the arbitrators

concluded that Oliver’s ineffective rating was the result of “harassment or other reasons not

related to job performance.” (Def. R. 56.1 Resp. (Dkt. No. 252) § 25)

In 2017, Oliver was “temporarily administratively reassigned” from the

classroom. (Id. Oliver challenged the 2017 reassignment in a discrimination lawsuit filed

in this District (the “2017 Discrimination Lawsuit”). (Id. §32) Oliver’s complaint names

Estwick and other DOE employees as defendants, and alleges discrimination, hostile work

environment, and retaliation. (Id.) The 2017 Discrimination Lawsuit was settled on December

27, 2018. (Pltf. R. 56.1 Stmt. (Dkt. No. 243) § 33) In connection with the settlement, Oliver

signed a “General Release” in which he

release[s] and forever discharge[s] the [the City, the DOE, Estwick, and the other

defendants] from any and all claims, liabilities, and/or causes of action which I

have or may have against any or all of the Released Parties based on any act,

omission, event or occurrence of any kind whatsoever occurring from the

beginning of the world up though and including the date of the execution of this

release, including, without limitation, any and all claims which were or could

have been alleged by me in the action arising out of the events alleged in the

Complaint, including all claims for attorneys’ fees and costs.

(Def. R. 56.1 Stmt. (Dkt. No. 237) § 12 (citing Arko Decl., Ex. E (General Release) (Dkt. No.

236-5) at 1))

4 In his Rule 56.1 Statement, Oliver cites the arbitrators’ decision as evidence that he suffered

harassment and unfair treatment at Tompkins. (See Plitf. R. 56.1 Stmt. (Dkt. No. 243) 4 18, 20,

22, 24, 25, 26) Defendants argue that the arbitration decision constitutes inadmissible hearsay.

(Def. Sum. J. Br. (Dkt. No. 238) at 27 (citing, inter alia, Park W Radiology v. CareCore Nat’l

LLC, 675 F. Supp. 2d 314, 329-30 (S.D.N.Y. 2009) (excluding arbitration decision as hearsay

and as inadmissible under F.R.E. 403))) Oliver has not responded to Defendants’ hearsay

argument. Accordingly, this Court will not rely on the arbitration decision as evidence that

Oliver suffered harassment or other unfair treatment at Tompkins prior to 2014.

B. The March 22, 2019 Arrest

During the 2018-19 school year, Oliver and his co-teacher, Ramona Demme,

taught a seventh-grade humanities class at Tompkins. (Pltf. R. 56.1 Stmt. (Dkt. No. 243) 437)

“G.C.” was a 13-year-old female student in Oliver’s class. (Id. 36) On March 21, 2019, G.C.

reported to the School’s guidance counselor, Paola Melendez, that Oliver touched G.C.’s arm

and said to her, “you know you love me.” (Def. R. 56.1 Resp. (Dkt. No. 252) 34-35)

Later that day, G.C. completed a “Dean’s Office Statement” that describes the

alleged incident as follows:

In Humanities everyone was in the meeting area and I was sitting at my table

because that’s where I sit. And [Oliver] came out of no where saying “I know

you love me” and I was confused and I looked at Erica and she was looking

confused. And he kept on rubbing my shoulder and I told him “can you please

stop touching me?” and he walked away[.]

(Foti Decl., Ex. 11 (Dean’s Office Statement) (Dkt. No. 244-11); see Pltf. R. 56.1 Stmt. (DKt.

No. 243) § 40)

That same day, Defendant Estwick and other staff members informed

Superintendent Chan of G.C.’s allegations. (Pltf. R. 56.1 Stmt. (Dkt. No. 243) 43) At Chan’s

direction, Guidance Counselor Melendez reported G.C.’s allegations to New York City’s Office

of the Special Commissioner of Investigations (“SCI”).° (Id. § 44) Defendants did not inform

Oliver of G.C.’s allegations at that time. (Id. { 46)

> SCI generated a report summarizing the call with Melendez. (See Foti Decl., Ex. 13 (Dkt. No,

244-13)) The SCI report states that Melendez said that Oliver had touched G.C. on her head.

(Id.) According to Melendez, however, G.C. did not state that Oliver touched her on her head,

and Melendez does not recall reporting any such allegation to SCI. (Arko Decl., Ex. J (Melendez

Dep.) (Dkt. No. 253-10) at 47:14-21) The SCI report also says that Oliver told G.C., “I know

you love me” (Id. at 47-48), whereas Melendez says that she told SCI that G.C. had stated that

Oliver said, “you know you love me.” (Id.)

On March 22, 2019 — the day after G.C. reported the incident to Melendez —

Principal Estwick spoke to Olga Urena, G.C.’s mother. (Id. {49) After her conversation with

Estwick, Urena called 911 to report her daughter’s allegations. (Id. 53) Urena testified that she

contacted the NYPD because she “felt like the school was not doing what they were supposed to

do.” (Foti Decl., Ex. 14 (Urena Dep.) (Dkt. No. 244-14) at 74)

After Urena’s call to 911, Defendant NYPD officers Gonzalez, Taylor, Jiang, and

McLeod (the “Arresting Officers”) arrived at Tompkins. (See Def. R. 56.1 Stmt. (Dkt. No. 237)

92; Pltf. R. 56.1 Stmt. (Dkt. No. 243) 55) “[T]he Arresting Officers interviewed G.C. at

[Tompkins] in the presence of Urena, Estwick, and a representative of the Superintendent’s

Office.” (Pltf. R. 56.1 Stmt. (Dkt. No. 243) 56)

During the interview, Officer Mcleod asked G.C. to describe the incident. Using

her right hand, G.C. showed how Oliver had stroked her left arm from the top of her shoulder to

her elbow three times. (See Foti Decl., Ex. 21 (McLeod-G.C. Interview Video Part 1) (Dkt. No.

244-21)) While stroking her arm, Oliver said, “I know you love me.” (Id.) G.C. told Oliver to

stop touching her, and he walked away. (Id.) When Officer Gonzalez asked G.C. whether

Oliver’s actions had made her feel uncomfortable, G.C. nodded yes. (Id.) G.C. further stated

that she had tried to report the incident to Guidance Counselor Melendez “for like a whole week

straight,” but Melendez was always busy with other students. (Id.) After G.C. reported the

incident to Melendez on March 21, 2019, Melendez instructed G.C. to write a statement

describing the incident. (Id.)

The Arresting Officers also interviewed Olga Urena, G.C.’s mother. (Id.) Urena

said that at about 4:10 p.m. on March 21, 2019, she received a text message from her nineteen-

year old daughter — G.C.’s older sister — regarding an incident involving G.C. at the School.

(Id.) In a subsequent phone call, the older sister told Urena that “something happened to [G.C]

in school with a teacher.” (Id.) At about the same time, Urena’s husband arrived at the School

to pick up the couple’s eleven-year-old daughter — G.C.’s younger sister. (Id.) The School’s

assistant principal told Urena’s husband that “something happened with [G.C.] in school with a

teacher,” but did not provide any further information. (Id.) After communicating with her oldest

daughter and husband, Urena drove to the School and spoke with the assistant principal and an

after-school teacher, both of whom said they were not aware of the details of any incident

involving G.C. and a teacher, (Id.) Urena then spoke with Principal Estwick by telephone, and

the two agreed to meet the following morning at the School. (Id.)

In speaking with the Arresting Officers, Urena repeatedly expressed irritation that

School officials had not contacted her about the Oliver/G.C. incident. (Id.) Urena also stated

that her youngest daughter had heard rumors about Oliver “touching kids” at the School. (Id.)

The Arresting Officers also interviewed Principal Estwick. Estwick told the

officers that on March 21, 2019, at the end of the school day, Melendez had reported G.C.’s

complaint to the assistant principal, and the assistant principal relayed G.C.’s allegations to

Estwick. (See Foti Decl., Ex. 17 (McLeod-G.C. Interview Video Part 2) (Dkt. No, 244-17))

Later that afternoon, Estwick informed Superintendent Chan of the incident. (Id.) The

Superintendent instructed Estwick to report G.C.’s allegations to SCI. (Id.) Accordingly,

Melendez — with Estwick on the phone — called SCI to submit a formal complaint. (Id.) Estwick

did not call 911 to report G.C.’s allegations. (Id.)°

6 The Court relies on the March 22, 2019 statements of G.C., Urena, and Estwick not for the

truth of the matters asserted, but for the effect the statements had on the state of mind and actions

of the Arresting Officers.

At the conclusion of the Estwick interview, the Arresting Officers “told Estwick

they wanted him to get [Oliver].” (Def. R. 56.1 Stmt. (Dkt. No. 237) 498) Accordingly,

Estwick went to Oliver’s classroom, told Oliver that Superintendent Chan wanted to see him, and

led Oliver to the School’s entrance, where he was arrested at approximately 10:12 a.m. (Id.

99-102; Foti Decl., Ex. 23 (Taylor Logbook) (Dkt. No. 244-23) at 3; id., Ex. 27 (Taylor Dep.)

(Dkt. No. 244-27) at 74) Oliver “was handcuffed, placed in the back of a police car, and

transported to the Ninth Precinct.” (Pltf. R. 56.1 Stmt. (Dkt. No. 243) § 65)

After placing Oliver in a cell at the Ninth Precinct, the Arresting Officers returned

to the School to interview students who were in the classroom when the alleged incident

involving Oliver and G.C. took place. (Id. § 66)

After these student interviews, the NYPD voided Oliver’s arrest, and at

approximately 12:30 p.m. on March 22, 2019, Oliver was released from custody. (Id. { 68)!

Cc. Post-Arrest Events

After his release from custody, Oliver returned to the School. (Id. | 69) That

afternoon, Defendant Estwick sent an email to the parents of Tompkins students stating that

“‘Oliver ha[d] been reassigned away from the school pending the results of an investigation.”

(Id. 70 (quoting Foti Decl., Ex. 28 (Reassignment Email) (Dkt. No. 244-28))

Later that day, “Defendant Estwick held an all-staff meeting.” (PItf R. 56.1 Stmt.

(Dkt. No. 243) | 71) When Oliver appeared for the meeting, Estwick instructed him to leave.

(Def. R. 56.1 Resp. (Dkt. No. 252) § 72; Arko Decl., Ex. H (Estwick Dep.) (Dkt. No. 253-8) at

341)

7 Oliver was thus in custody for approximately two hours and eighteen minutes.

That same day, the DOE Reassigned Staff Tracking Team sent an email to

Estwick stating that Oliver had been “administratively reassigned pending an investigation into

allegations of employee misconduct.” (Arlo Decl., Ex. T. (Staff Tracking Team Email) (DKt.

No. 236-20)) Attached to the email is a letter to Oliver informing him that he has been

reassigned. (Id.) The email directs Estwick to “give Mr. Oliver the attached letter and have him

report to this office on Monday, March 25, 2019.8 (Id.)

Estwick delivered the letter of reassignment to Oliver in his classroom, and told

him to leave the School. (Def. R. 56.1 Stmt. (Dkt. No. 237) 4 115) Oliver gathered his things

and left. (id. 116)

Between Oliver’s March 22, 2019 arrest and June 10, 2019, he reported to DOE’s

reassignment center. (Id. § 117) During this period, Oliver’s “per session” work,’ after-school

activities, and coaching responsibilities were suspended (Pltf. R. 56.1 Stmt. (Dkt. No. 243) { 73),

but he continued to receive his regular salary. (Def. R. 56.1 Stmt. (Dkt. No. 237) 163)

D. The Office of Equal Opportunity Investigation

On March 27, 2019, SCI referred the investigation into Oliver’s conduct to DOE’s

Office of Special Investigations, which in turn referred the matter to DOE’s Office of Equal

Opportunity. (Arko Decl., Ex. V (Bisogna Ltr.) (Dkt. No. 253-22))

In a June 3, 2019 email to Superintendent Chan, Esther Hutchinson — an Equal

Opportunity Investigator — states that

[a]fter a careful review of the allegations [against Oliver], [the Office of Equal

Opportunity] determined that the allegations do not articulate sexual harassment

under Chancellor’s Regulation A-830, but [the Office of Equal Opportunity] is

referring the inappropriate nature of the physical contact and comments to your

The letter to Oliver referenced in the email has not been provided to the Court.

9 “Per session work is similar to overtime work for teachers.” (Def. R. 56.1 Stmt. (Dkt. No.

237) ¥ 176)

office for you to handle as deemed fit and appropriate. Accordingly, [the Office

of Equal Opportunity] will take no further investigative action regarding these

matters.

(Arko Decl., Ex. X (Hutchinson Email) (Dkt. No. 253-24)) In a June 6, 2019 memorandum,

Hutchinson “administratively close[d] the case.” (Arko Decl., Ex. Y (Hutchinson Memo.) (Dkt.

No. 253-25) at 2)

In a June 6, 2019 letter to Oliver, the DOE Office of Personnel Investigation

notified Oliver that he was authorized to return to his teaching position at Tompkins (Pltf. R.

56.1 Stmt. (Dkt. No. 243) 4 78), and Oliver returned to his position at the School on June 10,

2019. (Def. R. 56.1 Stmt. (Dkt. No. 237) § 161) Between June 11, 2019 and the end of the

2018-19 school year, however, Oliver was on medical leave. (See Arko Decl., Ex. F (Oliver

Dep.) (Dkt. No. 236-6) at 354-55; Foti Decl., Ex. X (Dr. Polite Ltr.) (Dkt. No. 247-31))

E. Defendant Mustillo’s Investigation

After the Office of Equal Opportunity closed its investigation of the Oliver/G.C.

incident, Superintendent Chan referred the matter to Deputy Superintendent Kristine Mustillo for

further investigation. (Def. R. 56.1 Resp. (Dkt. No. 252) ] 77) At deposition, Mustillo testified

that she received — either from the DOE’s Office of Equal Opportunity or their “legal counsel” —

an email stating “that a student made an allegation that a teacher had touched her shoulder in a

way that made her uncomfortable, so we were being asked to investigate.” (Arko Decl., Ex. L

(Mustillo Dep.) (Dkt. No. 236-12) at 67-69)

As part of her investigation, Defendant Mustillo interviewed “students near [G.C.]

at the time [of the Oliver/G.C. incident and] other students that [G.C.] discussed her concerns

with,” questioning them about G.C.’s complaint and unrelated allegations of misconduct that had

10

been made against Oliver. (Id. at 74; Arko Decl., Ex. Z (Mustillo Notes) (Dkt. No. 236-26) at 1-

2)

Mustillo also interviewed Ramona Demme — Oliver’s humanities co-teacher —

who said that she had not observedd the events giving rise to G.C.’s complaint. (Arko Decl., Ex.

10 Mustillo interviewed five students during her investigation. In her notes summarizing each

interview, Mustillo refers to the students she interviewed as “Student[s] A” through “E.” (Arko

Decl., Ex. Z (Mustillo Notes) (Dkt. No. 236-26) at 1-2) Student A is G.C., and Students B

through E are other female students in the seventh grade. (See id.) The Court relies on

Mustillo’s notes, including the students’ statements contained therein, not for the truth of the

matters asserted, but for the effect the statements had on Mustillo’s state of mind.

According to Mustillo’s notes, Student B was in the classroom at the time of the Oliver/G.C.

incident. (Id. at 2) Although Student B did not observe the incident, she saw Oliver walk away

from G.C.’s desk. (Id.) According to Student B, “[i]t looked like something happened.” (Id.)

G.C. later told Student B that Oliver “touched her in a way that made her feel uncomfortable,”

that she “didn’t want the cops called,” and that G.C. was “scared and felt it was serious.” (Id. at

1) Student B also said that Oliver “does scare me because he comes from behind and touches my

shoulders. I know he is looking at my work but it’s surprising.” (Id. at 2) And when Oliver

“says “You know you love me[,]’ [Student B] just walk[s] away.” (Id.) Student B also said, “T

don’t really feel safe.” (Id.)

Student C reported that she and G.C. “were talking near the meeting area” when Oliver “touched

[G.C.] in a weird way.” (Id.) G.C. became upset. (Id.) Student C also stated that Oliver “lifted

up my friend’s (Student D) shirt one time. Just a little.” (Id.) Oliver had also “touched [Student

C’s] face and [her] [waist]. [Student C] was uncomfortable but [she] felt like [Oliver] was

joking.” (Id.) Student C also stated that “[s]ometimes when [Oliver] asks me for a conference

after school and it’s just the two of us, he never did anything, but it’s uncomfortable.” (1d.)

Student D reported that Oliver “is not a bad teacher. You wouldn’t think negative about him.

He’s bright. He’s supportive.” (Id.) Student D also stated that she “know[s] [G.C.] is

uncomfortable because [Oliver] is coming back [to the School]. [Oliver] has touched [Student

D] but it doesn’t make [her] uncomfortable.” (Id.) Student D also stated, “[Oliver] asks me if I

need a hug. He wouldn’t touch me without my permission.” (Id.) Lastly, Student D stated that

Oliver “lifted [her] shirt” after she “told him [she] needed to change and [she] didn’t have a shirt

on underneath [her] shirt.” (Id.) According to Student D, “[i]t was uncomfortable but I realized

he was doing it to see if I really needed to change or if I was just trying to get out of class.” (Id.)

Student E reported that she did not know that G.C. “was the cause of what happened to [Oliver]

until [Student E] was questioned by the police.” (Id.) She stated that Oliver “is [her] favorite

teacher. He is very open minded.” (Id.) She also stated that Oliver “has touched me and he

touches other people. It’s more of a friendly touch. It doesn’t make me uncomfortable.” (Id.)

11

L (Mustillo Dep.) (Dkt. No. 236-12) at 73-74) She also interviewed Guidance Counselor

Melendez. (Id. at 73)

On June 7, 2019 — the day after Oliver received a letter informing him that he was

authorized to return to the classroom — Estwick and Mustillo exchanged text messages regarding

Oliver’s return. (See Foti Decl., Ex. J (Dkt. No. 247-14) at 31-32) Mustillo asked Estwick for

Oliver’s email address, explaining that she “need[ed] to send him a notice to meet with me[.]

Currently they will not extend the reassignment as [the Office of Equal Opportunity] referred it

back[.]” Cd. at 31)

Later that day, Oliver received a letter from Mustillo requesting a meeting “‘to

discuss an allegation of professional misconduct.’” (Pltf. R. 56.1 Stmt. (Dkt. No. 243) 79

(quoting Foti Decl., Ex. 31 (Mustillo Ltr.) (Dkt. No. 244-31)) On June 11, 2019, Oliver and his

United Federation of Teachers representative met with Mustillo. (Id. | 80) Oliver’s “union

representative gave a brief statement ‘that essentially said [that G.C.’s and the other students’ □

allegations were false.” (Def. R. 56.1 Resp. (Dkt. No. 252) 247 (quoting Arko Decl., Ex. L

(Mustillo Dep.) (Dkt. No. 253-12) at 123))

In a June 12, 2019 email to Mustillo bearing the subject line “Akeem Incidents

Timeline” (Pltf. R. 56.1 Stmt. (Dkt. No. 243) § 83), Estwick listed fifteen allegations of

misconduct against Oliver, including G.C.’s allegation. These alleged incidents took place

between 2011 and 2019. (Foti Decl., Ex. 33 (“Akeem Incidents Timeline” Email) (Dkt. No. 244-

33) at 1-3) Mustillo asks Estwick to “note which of these incidents have been documented and

how.”!! (id. at 1)

The record does not reveal whether Estwick responded to Mustillo’s request for

documentation.

12

On June 17, 2019, Mustillo issued a disciplinary letter to Oliver describing her

investigation into G.C.’s “allegation of unwanted physical contact.” (Foti Decl., Ex. 32

(Disciplinary Ltr.) (Dkt. No. 244-32) at 1; see Pltf. R. 56.1 Stmt. (Dkt. No. 243) 85) In the

letter, Mustillo states that she has interviewed G.C. and several “other students named during the

interview process,” and that the “student statements refer to not only the physical interaction

which was the source of the initial complaint but ongoing physical interactions that have resulted

in some students feeling uncomfortable.” (Foti Decl., Ex. 32 (Disciplinary Ltr.) (Dkt. No. 244-

32) at 1) Mustillo states that, based on the student interviews, she has concluded that Oliver

engaged in “professional misconduct.” (Id.) The letter further states that the G.C. “incident may

lead to further disciplinary action, including charges that can lead to your termination.” (Id.)

On June 19, 2019, Mustillo and Estwick met to discuss the allegations of

professional misconduct against Oliver. (Def. R. 56.1 Resp. (Dkt. No. 252) { 84)

Il. OLIVER’S CLAIMS

The FAC alleges twenty-one causes of action. The First Cause of Action is

brought under Section 1983 against the Arresting Officers and alleges that they

acted under color of state law to deprive Mr. Oliver of his right to be free from

unreasonable searches and seizures and arrests without reasonable suspicion or

probable cause as required by the Fourth and Fourteenth Amendments, and in

violation of 42 U.S.C. § 1983.

(FAC (Dkt. No. 195) § 170)

The Second Cause of Action is brought under the Fourteenth Amendment against

DOE, and alleges that “DOE deprived Mr. Oliver of his ability to work as a teacher and his

interest in and right to work as a teacher without due process of law.” (Id. § 176)

The Third Cause of Action is brought against the Arresting Officers (Defendants

Gonzalez, Taylor, McLeod, and Jiang) for false arrest under New York law. (Id. {| 179-84)

13

The Fourth Cause of Action is a Section 1983 supervisory liability claim against

Defendant Gonzalez. (Id. {J 185-89)

The Fifth, Sixth, and Seventh Causes of Action assert Title VII claims against

DOE for race discrimination (id. {J 190-93), hostile work environment (id. {{ 194-97), and

retaliation (id. J] 198-204).

The Eighth, Ninth, and Tenth Causes of Action are Section 1983 claims against

Estwick alleging race discrimination (id. J 205-08), hostile work environment (id. {J 209-212),

and retaliation (id. J 213-19).

The Eleventh Cause of Action is brought under Section 1983 against Chan and

Mustillo for aiding and abetting retaliation. (Id. {J 220-23)

The Twelfth Cause of Action is a Monell claim against the DOE. (Id. ff] 224-29)

The Thirteenth Cause of Action is a Section 1983 supervisory liability claim

against Chan and Mustillo. (Id. J] 230-34)

The Fourteenth, Fifteenth, and Sixteenth Causes of Action are brought against

DOE and Estwick under the New York State Human Rights Law (““NYSHRL”) and allege race

discrimination (id. {9 235-40), hostile work environment (id. § 241-46), and retaliation (id.

247-54).

The Seventeenth, Eighteenth, and Nineteenth Causes of Action are brought

against DOE and Estwick under the New York City Human Rights Law (“NYCHRL”) and

allege race discrimination (id. {§ 255-60), hostile work environment (id. {J 261-66), and

retaliation (id. {J 267-75).

The Twentieth Cause of Action is brought under the NYSHRL and the NYCHRL

against Chan and Mustillo and alleges that they aided and abetted retaliation. (Id. {{] 276-79)

14

The Twenty-First Cause of Action is a respondeat superior claim against DOE.

(Id. {{] 280-82)

IV. PROCEDURAL HISTORY

The Complaint was filed on December 6, 2019 (Dkt. No. 1); the First Amended

Complaint was filed on June 4, 2020 (Dkt. No. 33); and the Second Amended Complaint

(“SAC”) was filed on August 13, 2020. (Dkt. No. 41)

On November 11, 2020, Defendants moved to dismiss the SAC. (Dkt. No. 63)

This Court referred Defendants’ motion to Magistrate Judge Cott for a Report and

Recommendation (“R&R”). (Order of Reference (Dkt. No. 71))

On February 15, 2022, Judge Cott issued an R&R recommending that

Defendants’ motion to dismiss be granted in part and denied in part.'? Oliver v. City of New

York, et al., 19-CV-11219 (PGG) (JLC), 2022 WL 455851 (S.D.N.Y. Feb. 15, 2022). (Dkt. No.

97) Oliver filed objections to the R&R on March 7, 2022 (Dkt. No. 103); Defendants filed a

response to Oliver’s objections on March 28, 2022 (Dkt. No. 109); and Plaintiff filed a reply on

April 8, 2022 (Dkt. No. 112).

On September 23, 2022, Oliver filed the Third Amended Complaint (“TAC”).

(Dkt. No. 139) That same day, the parties filed a joint letter stating “that the substance of the

12 As relevant here, Judge Cott recommended that Defendants’ motion to dismiss be granted as

to Oliver’s

* Section 1983 and state law false arrest claims against Gonzalez;

New York State Constitution claims against Gonzalez and Taylor;

* race discrimination, hostile work environment, and retaliation claims against the DOE,

Chan, and Mustillo;

* supervisory liability claims against Chan and Mustillo under Section 1983; and

* the federal respondeat superior claims against the DOE, and otherwise denied.

Oliver, 2022 WL 455851, at *18, *32.

15

pending [motion to dismiss] is not changed by the TAC, except that new defendants were

added.” (Dkt. No. 140) “The newly added defendants simply replaced officers that were named

as John Does in the [SAC].” (id. at 1 n.2)

On February 22, 2023, this Court issued an order adopting the R&R in part,

granting Defendants’ motion to dismiss in part, and denying Defendants’ motion to dismiss in

part. Oliver v. City of New York, 19 Civ. 11219 (PGG)(JLC), 2023 WL 2160062 (S.D.N.Y.

Feb. 22, 2023). As relevant here, this Court granted Defendants’ motion to dismiss as to

Plaintiff's New York State Constitution claims; his direct false arrest claim against Gonzalez;

the respondeat superior claim against the City for officers’ conduct pursuant to Section 1983; the

Monell claims against the City; the respondeat superior claim against the DOE pursuant to

Section 1983; and the claims against Chan and Mustillo. Defendants’ motion was otherwise

denied.

On June 7, 2023, Oliver filed the Fourth Amended Complaint. (Dkt. No. 195)

On February 26, 2024, the parties filed cross-motions for summary judgment.

Mot. (Dkt. No. 241); Def Mot. (Dkt. No. 235))

DISCUSSION

I. LEGAL STANDARD

Summary judgment is warranted where the moving party “shows that there is no

genuine dispute as to any material fact” and that it “is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A dispute about a ‘genuine issue’ exists for summary judgment purposes

where the evidence is such that a reasonable jury could decide in the non-movant’s favor.”

Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (quoting Guilbert v. Gardner, 480

F.3d 140, 145 (2d Cir. 2007)). “When no rational jury could find in favor of the nonmoving

party because the evidence to support its case is so slight, there is no genuine issue of material

16

fact and a grant of summary judgment is proper.” Gallo v. Prudential Residential Servs., Ltd.

P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Cont’l Grp., Inc., 859 F.2d 1108,

1114 (2d Cir. 1988)). “‘[T]hat opposing parties assert competing versions of the same event is

not in itself sufficient to preclude summary judgment,’ in that contradictory testimony only

establishes a ‘genuine’ issue for trial if it ‘lead[s] to a different legal outcome.” Yi Fu Chen v.

Spring Tailor, L.L.C., 14 Civ. 218 (PAE), 2015 WL 3953532, at *4 (S.D.N.Y. June 29, 2015)

(alterations in original) (quoting Krynski v. Chase, 707 F. Supp. 2d 318, 322 (E.D.N.Y. 2009)).

In deciding a summary judgment motion, the Court “‘resolve[s] all ambiguities,

and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing

summary judgment.’” Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (quoting

Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001)). However, “‘[a] party may not rely on

mere speculation or conjecture as to the true nature of the facts to overcome a motion for

summary judgment. ... [M]ere conclusory allegations or denials . . . cannot by themselves create

a genuine issue of material fact where none would otherwise exist.’”” Hicks v. Baines, 593 F.3d

159, 166 (2d Cir. 2010) (second alteration and omissions in original) (quoting Fletcher v. Atex,

Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)). Moreover, “‘[t]he principles governing admissibility of

evidence do not change on a motion for summary judgment[,]’ and district courts need only

consider admissible evidence in ruling on a motion for summary judgment.” I.M. v. United

States, 362 F. Supp. 3d 161, 174 n.9 (S.D.N.Y. 2019) (quoting Raskin v. Wyatt Co., 125 F.3d 55,

66 (2d Cir. 1997)).

“Where, as here, the burden of persuasion at trial would be on the non-moving

party[,]... the party moving for summary judgment may satisfy [its] burden of production under

Rule 56 in either of two ways: (1) by submitting evidence that negates an essential element of

17

the non-moving party’s claim, or (2) by demonstrating that the non-moving party’s evidence is

insufficient to establish an essential element of the non-moving party’s claim.’” Nick’s Garage,

Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017) (quoting Farid v. Smith, 850

F.2d 917, 924 (2d Cir. 1988)). In ruling on a summary judgment motion, a court “may not make

credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prod., Inc.,

530 U.S. 133, 150 (2000). “Credibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions, not those of a judge. . ..”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

“In cases that involve claims of discrimination, courts must use ‘an extra measure

of caution’ in determining whether to grant summary judgment ‘because direct evidence of

discriminatory intent is rare and such intent often must be inferred from circumstantial evidence

found in affidavits and depositions.’” Fitchett v. City of New York, 18 Civ. 8144 (PAE), 2021

WL 964972, *8 (S.D.N.Y. Mar. 15, 2021) (quoting Schiano v. Quality Payroll Sys., Inc., 445

F.3d 597, 603 (2d Cir. 2006)). However, “‘the salutary purposes of summary judgment —

avoiding protracted, expensive and harassing trials — apply no less to discrimination [and

retaliation] cases than to . . . other areas of litigation.”” Abdu-Brisson v. Delta Air Lines, Inc.,

239 F.3d 456, 466 (2d Cir. 2001) (omission in original) (quoting Meiri v. Dacon, 759 F.2d 989,

998 (2d Cir. 1985)). As in any other case, a plaintiff in a discrimination or retaliation case “must

‘do more than simply show that there is some metaphysical doubt as to the material facts[.]’...

must come forth with evidence sufficient to allow a reasonable jury to find in [his] favor.”

Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “Mere conclusory statements, conjecture or

speculation cannot by themselves create a genuine issue of material fact.” Gross v. Nat’! Broad.

12

Co., Inc., 232 F. Supp. 2d 58, 67 (S.D.N.Y. 2002); see also Risco v. McHugh, 868 F. Supp. 2d

75, 98 (S.D.N.Y, 2012) (““[E]ven in the discrimination context, [ ] a plaintiff must provide more

than conclusory allegations to resist a motion for summary judgment’ . .. [and the] ‘nonmoving

party must offer some hard evidence showing that [his] version of the events is not wholly

fanciful.’”) (quoting Holcomb vy. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) and Jeffreys, 426

F.3d at 554).

“The same standard[s] appl[y] where, as here, the parties file[] cross-motions for

summary judgment... .” Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001).

“[W]hen both parties move for summary judgment, asserting the absence of any genuine issues

of material fact, a court need not enter judgment for either party. Rather, each party’s motion

must be examined on its own merits, and in each case all reasonable inferences must be drawn

against the party whose motion is under consideration.” Id. (internal citations omitted).

II. FALSE ARREST

The parties have cross-moved for summary judgment on Oliver’s false arrest

claims under Section 1983 and New York law. (Pltf. Sum. J. Br. (Dkt. No. 242) at 13-18; Def.

Sum. J. Br. (Dkt. No. 238) at 65-69)

As discussed above, on March 22, 2019, the Arresting Officers took Oliver into

custody at the School’s entrance. (Def. R. 56.1 Stmt. (Dkt. No. 237) J 102)

A. Applicable Law

1. Probable Cause

“A [S]ection 1983 claim for false arrest is substantially the same as a claim for

false arrest under New York law.” Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007)

(citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)); see also Parrish v. Orange Cnty. L.

Enf't Agency-M.P.D., 25-CV-1674 (LLS), 2025 WL 2977797, at *5 (S.D.N.Y. Oct. 20, 2025)

19

(“A claim for false arrest under Section 1983 incorporates the elements of a false arrest claim

under state law.”) (citing Boyd v. City of New York, 336 F.3d 72, 75 (2d Cir. 2003)). To state a

claim for false arrest, a plaintiff must show that: “‘(1) the defendant intended to confine [the

plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to

the confinement and (4) the confinement was not otherwise privileged.’” Liranzo v. United

States, 690 F.3d 78, 95 (2d Cir. 2012) (emphasis omitted) (quoting Caban v. United States, 728

F.2d 68, 71 (2d Cir. 1984)).

“<The existence of probable cause to arrest constitutes justification and is a

complete defense to an action for false arrest, whether that action is brought under state law or

under § 1983.” Jenkins, 478 F.3d at 84 (quoting Weyant, 101 F.3d at 852) (further quotation

marks omitted). “When determining whether probable cause exists courts must consider those

facts available to the officer at the time of the arrest and immediately before it, as [p]robable

cause does not require absolute certainty.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.

2006) (emphasis in original) (internal quotations and citations omitted); Gonzalez v. City of

Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (“The inquiry is limited to ‘whether the facts

known by the arresting officer at the time of the arrest objectively provided probable cause to

arrest.’” (quoting Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. 2006))).

“Probable cause to arrest exists when the arresting officer has knowledge or

reasonably trustworthy information of facts and circumstances that are sufficient to warrant a

person of reasonable caution in the belief that the person to be arrested has committed or is

committing a crime.’” Figueroa v. Mazza, 825 F.3d 89, 99 (2d Cir. 2016) (quoting Escalera v.

Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal quotation marks omitted)). “Probable cause is

a ‘fluid’ standard that ‘does not demand hard certainties or mechanistic inquiries’; nor does it

20

‘demand that an officer’s good-faith belief that a suspect has committed or is committing a crime

be correct or more likely true than false.’” Id. (quoting Zalaski v. City of Hartford, 723 F.3d

382, 389, 390 (2d Cir. 2013) (citations and internal quotation marks omitted)). “Rather, it

requires only facts establishing ‘the kind of fair probability’ on which a ‘reasonable and prudent’

person, as opposed to a ‘legal technician[ ],’ would rely.” Id. (quoting Florida v. Harris, 568

U.S. 237, 243-44 (2013) (internal quotation marks omitted)).

“An arresting officer advised of a crime by a person who claims to be the victim

has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s

veracity.” Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (citations omitted); see

also Betts v. Shearman, 751 F.3d 78, 81 (2d Cir. 2014) (“[P]robable cause exists ifa law

enforcement officer ‘received [ ] information from some person, normally the putative victim or

eyewitness, unless the circumstances raise doubt as to the person’s veracity.” (quoting

Panetta, 460 F.3d at 395 (internal quotation marks and citations omitted in original))).

Where there are circumstances that raise questions about the victim’s veracity,

“the officer may need to investigate further.’” Hart v. City of New York, No. 11 Civ. 4678

(RA), 2013 WL 6139648, at *5 (S.D.N.Y. Nov. 18, 2013) (quoting Sankar v. City of New York,

867 F. Supp. 2d 297, 306 (E.D.N.Y. 2012)). Even in such circumstances, however, an officer’s

“further inquiry and corroboration of the facts” will be “sufficient to dispel concerns about [the

victim’s] veracity.” Id. Moreover, “the probable cause standard does not require that the

arresting officer affirmatively seek out reasons to doubt the victim or witness where none are

apparent.” Parisi v. Suffolk Cty., No. 04 Civ. 2187 (ENV) (ETB), 2009 WL 4405488, at *7

(E.D.N.Y. Nov. 30, 2009).

21

2. Elements of Endangering the Welfare of Child

Under N.Y. Penal Law § 260.10(1), a person “is guilty of endangering the welfare

of child when . . . [h]e or she knowingly acts in a manner likely to be injurious to the physical,

mental or moral welfare of a child less than seventeen years old.”

“The scope of this statute is quite broad.” Bate v. City of New York, 15 Civ.

2631 (PGG), 2018 WL 4757940, at *17 (S.D.N.Y. Sept. 30, 2018). “As an initial matter,

‘[a]ctual harm to the child need not result for criminal liability; it is “sufficient that the defendant

act in a manner which is likely to result in harm to the child.”’” Id. (quoting People v. Johnson,

95 N.Y.2d 368, 371 (2000) (emphasis in original)); see also Figueroa, 825 F.3d at 103 (an officer

may conclude that a suspect “created a serious risk to [a] child’s welfare in violation of

§ 260.10(1) .. . even if the risk did not materialize into actual harm”) (citing People v. Simmons,

92 N.Y.2d 829 (1998)). And “[tJhe harm to which the statute refers [may be] ‘physical, mental

or moral.’” Doe by & through Doe v. E. Irondequoit Cent. Sch. Dist., No. 16 Civ. 6594 (CJS),

2018 WL 2100605, at *2 (W.D.N.Y. May 7, 2018) (alterations in original) (quoting People v.

Noce, 24 Misc. 3d 1202(A), *5 (Nassau Cty. Dist. Ct. 2009)).

Given the broad scope of the statute, a wide variety of conduct has been found to

constitute “endangering the welfare of a child.” For example,

the provision applies to the assault of a mother in front of her children, J ohnson,

95 N.Y.2d 368, 718 N.Y.S.2d 1, 740 N.E.2d 1075; and also to the possession ofa

large number of firearms and ammunition in easy reach of a child known to have

played with the guns, People v. Hitchcock, 98 N.Y.2d 586, 750 N.Y.S.2d 580,

780 N.E.2d 181 (2002). Lower courts in New York have found actual or

attempted violations of § 260.10 where a defendant smoked marijuana in his

home in the presence of children, People v. Alvarez, 20 Misc.3d 606, 860

N.Y.S.2d 745 (N.Y. Crim. Ct. 2008); where a defendant sold fireworks to a child,

People v. Suguisupa, 167 Misc.2d 109, 637 N.Y.S.2d 302 (N.Y. Sup. Ct. 1996);

where a defendant left a seven-year-old alone in a locked apartment for two-and-

one-half hours, People v. Watson, 182 Misc.2d 644, 700 N.Y.S.2d 651 (N.Y.

Crim. Ct. 1999); where a school bus attendant failed to awaken a child who had

fallen asleep and remove him from the bus when it reached the school, People v.

99

Afia, 17 Misc.3d 734, 843 N.Y.S.2d 906 (N.Y. Crim. Ct 2007); where a father

drove drunk with his son in the vehicle, People v. D’Ambrosia, 192 Misc.2d 560,

746 N.Y.S.2d 556 (N.Y. Just. Ct. 2002); where defendants lived with their

children in filthy, garbage-filled households, People v. Manon, 226 A.D.2d 774,

640 N.Y.S.2d 318 (N.Y. App. Div. 1996); People v. Ambers, 17 Misc.3d 278, 840

N.Y.S.2d 533 (N.Y. Crim. Ct. 2007); and where a mother left her two young

children unsupervised in an automobile for over two hours, People v. Cenat, 176

Misc.2d 39, 671 N.Y.S.2d 578 (N.Y. Crim. Ct. 1997).

Guzman v. Holder, 340 F. App’x 679, 681 (2d Cir. 2009).

The statute also applies to “inappropriate physical contact” with a child. See, e.g.,

People v. Toft, 156 A.D.3d 1234, 1235 (3d Dept. 2017) (upholding conviction for endangering

the welfare of a child based on “inappropriate physical contact” notwithstanding defendant’s

acquittal on sex crimes); People v. Strickland, 78 A.D.3d 1210, 1211 (3d Dept. 2010) (upholding

conviction for endangering the welfare of a child; noting that jury could have concluded that

“some impermissible conduct occurred between defendant and the victim,” even though

defendant was acquitted of sex abuse charges); People v. Sanderson, 68 A.D.3d 1716, 1717 (4th

Dept. 2009) (“[A] rational jury could have found that defendant ‘knowingly act[ed] in a manner

likely to be injurious to the physical, mental or moral welfare of [the] child’ (Penal Law § 260.10

[1]), based on testimony that, inter alia, defendant attempted to kiss the victim while he was

alone with her.”).

B. Defendants’ Motion for Summary Judgment on Oliver’s False Arrest Claims

Defendants argue that the Arresting Officers had probable cause to arrest Oliver

for endangering the welfare of a child based on the Arresting Officers’ interview of G.C. (Def.

Sum. J. Br. (Dkt. No. 238) at 68-69) According to Defendants, “the objectively inappropriate

actions of [Oliver] fit within [the] broad definition [of endangering the welfare of a child]” under

N.Y. Penal Law § 260.10. (Id. at 69)

In opposition, Oliver argues that

23

[n]o reasonable officer could have found probable cause for the crime of

endangering the welfare of a child [based on] (1) the facts (or lack thereof) that

were available to the officers at the time of the arrest, (2) the trustworthiness of

the testimony on which the officers’ relied, and (3) the officers’ failure to conduct

further inquiry prior to Mr. Oliver’s arrest. ...

(Pltf. Opp. Br. (Dkt. No. 245) at 39)

The Arresting Officers interviewed G.C. before taking Oliver into custody. (Pltf.

R. 56.1 Stmt. (Dkt. No. 243) §] 56-57) During that interview, G.C. told the officers that Oliver

repeatedly stroked her arm and said, “I know you love me.” (See Foti Decl., Ex. 21 (McLeod-

G.C. Interview Video Part 1) (Dkt. No. 244-21) at 02:17-3:15) G.C. showed the officers how

Oliver had touched her, using her right hand to stroke her left arm, from the top of her shoulder

to just above her elbow. (Id.) G.C. told the officers that she told Oliver to stop touching her, and

he walked away. (Id.) When Officer Gonzalez asked G.C. whether Oliver’s conduct had made

her feel uncomfortable, G.C. nodded her head yes. (Id. at 6:04-6:11) The Arresting Officers did

not interview any other witnesses before arresting Oliver.? (See Def. R. 56.1 Stmt. (Dkt. No.

237) 97-98)

1. Whether G.C. Described Conduct that Constitutes a Crime

Defendants argue that the Arresting Officers had probable cause to arrest Oliver

for endangering the welfare of a child in violation of N.Y. Penal Law § 260.10. “[T]he

13 When Olga Urena, G.C.’s mother, called 911, she reported that a male teacher had touched

her daughter “sexually.” (Foti Decl., Ex. 15 (911 call) (Dkt. No. 244-15)) Defendants have not

argued that the Arresting Officers were aware of the substance of Urena’s 911 call.

During the Arresting Officers’ interview of G.C. at the School, Urena stated that — according to

her younger daughter, also a student at the School — Oliver had touched other children in the

past. (Foti Decl., Ex. 21 (McLeod-G.C. Interview Video) (Dkt. No. 244-21) at 02:45-3:15)

Defendants have not argued that the Arresting Officers relied on this statement in making their

probable cause determination.

24

interpretation of what violates § 260.10 is broad, and certainly, the obj ectively inappropriate

actions of [Oliver] fit within that broad definition.” (Def. Sum. J. Br. (Dkt. No. 238) at 69)

None of the cases cited by Defendants suggest that Oliver’s alleged conduct

constitutes behavior “likely to be injurious to the physical, mental or moral welfare of a child,”

however. (See id. at 66-67, 72 (citing Guzman, 340 F. App’x at 681; People v. Johnson, 95

N.Y.2d 368 (2000); Pehush v. Town of Wallkill, 15 Civ. 2500 (LMS), 2017 WL 6729716

(S.D.N.Y. Nov. 8, 2017); Peterson-Hagendorf v. City of New York, 146 F. Supp. 3d 483, 487

(E.D.N.Y. 2015); Blythe v. City of New York, 963 F. Supp. 2d 158, 182 (E.D.N.Y. 2013);

People v. Simmons, 92 N.Y.2d 829, 831 (1998); People v. Valentin, 17 Misc.3d 1132(A) (Kings

Co. Crim. Ct. 2007); People v. Ostrin, 8 Misc.3d 1020(A) (Crim. Ct. Kings Co, 2005); Bate,

2018 WL 4757940; Smith v. Lanati, 271 F. App’x 65 (2d Cir. 2008); Villa v. City of New York,

No. 11 Civ. 1669 (RJS) (AJP), 2013 WL 1385207 (S.D.N.Y. Mar. 14, 2013); Betts v. Shearman,

No. 12 Civ. 3195 (JPO), 2013 WL 311124 (S.D.N.Y. Jan. 24, 2013)).

As an initial matter, Smith, Villa, and Betts are of no assistance to Defendants,

because none of these cases involves allegations that the defendant endangered the welfare of a

child in violation of N.Y. Penal Law § 260.10.

In Guzman, as discussed above, the Second Circuit listed a series of cases in

which courts have found violations of N.Y. Penal Law § 260.10. These cases involved the

following conduct: assaulting a mother in front of her children; leaving a large number of

firearms and ammunition within easy reach of a child known to have played with the guns;

smoking marijuana in a home in the presence of children; selling fireworks to a child; leaving a

seven-year-old alone in a locked apartment for two-and-one-half hours, failing to awaken a child

who had fallen asleep on the school bus when it reached the school; driving drunk with a child in

95

the vehicle; living with children in filthy, garbage-filled households; and leaving children

unsupervised in an automobile for more than two hours. Guzman, 340 F. App’x at 681 (citations

omitted), None of the conduct discussed in Guzman is similar to the conduct at issue here.

In Bate, the Court found that there was probable cause to arrest where the

defendant had “touched [one child’s] breast and rubbed [another child’s] thigh,” and

“massag[ed] and rub[bed] [six] girls’ backs, shoulders, neck, and feet without their consent.”

Bate, 2018 WL 4757940, at *18-*19. This conduct is likewise more extreme than that at issue

here.

Peterson-Hagendorf and Blythe both involve physical injury. In the former case,

the court found probable cause to arrest where the plaintiff “physically interacted with” a first-

grade student, resulting in a “red, swollen welt on [the child’s] neck.” Peterson-Hagendorf, 146

F. Supp. 3d at 485-87. And in Blythe, the court found probable cause to arrest where a teacher

put her hands on [a student] and forced [the student] back into her seat numerous

times. After the officers arrived, they corroborated the information contained in

the 911 call: the child complained of “a little bit of pain,” and the officers

observed “a little bit of redness.”

963 F. Supp. 2d at 182.

In Johnson, the New York Court of Appeals upheld a conviction for endangering

the welfare of a child where

the children saw defendant approach their mother and strike her down in the

street, whereupon they immediately started crying. In their immediate presence,

the defendant then threatened to kill their mother. For over 10 hours they hid in

their bedroom, listening to defendant’s yelling and cursing, their mother’s

screams and the sounds of breaking glass.

95 N.Y.2d at 373. No such conduct is at issue here.

Similarly, in Simmons, the New York Court of Appeals upheld convictions for

endangering the welfare of a child where the defendant had “repeatedly direct[ed] vulgar

96

remarks of a sexual nature to a child aged 23 months” “over a period of nearly six weeks.” 92

N.Y.2d 829, 830-31.

And in Valentin, the court found a criminal complaint charging endangering the

welfare of a child legally sufficient where the complaint alleged that the defendant had “kiss[ed]

on the mouth the then 15 year old Complaining Witness, a member of the baseball team the

Defendant coached.” 17 Misc. 3d 1132(A), at *1-*3.

Finally, in Ostrin, the court found a criminal complaint charging endangering the

welfare of a child legally sufficient where the People alleged that the defendant had made

“several statements of a sexual nature” to a fifteen-year-old female student, including “a request

for the [student] to be the Defendant’s ‘little sex slave,’ and a request for a ‘strip tease.””

8 Misc.3d 1020(A), at *1-*2. The complaint also alleged that the defendant “placed his hands on

the [student], kissed and hugged her, and asked her to quantify her love for [him].” Id.

Oliver’s alleged conduct — stroking G.C.’s arm and saying “I know you love me”

— is not comparable to the allegations in any of the cases cited by Defendants.

In resolving Defendants’ motion, the Court must consider the evidence in the light

most favorable to Oliver. Spinelli, 579 F.3d at 166. Pursuant to this standard, the Court

concludes that Defendants have not shown as a matter of law that G.C.’s allegations constitute

conduct “likely to be injurious to the physical, mental or moral welfare of a child.” See N.Y.

Penal Law § 260.10(1). There are material issues of fact as to whether G.C.’s allegations — as

she reported them to the Arresting Officers — were sufficient to establish probable cause to arrest

Oliver for the crime of endangering the welfare of a child.

2. Qualified Immunity

“Tn the context of § 1983 actions predicated on allegations of false arrest, [the

Second Circuit has] held that an arresting officer is entitled to qualified immunity so long as

97

‘arguable probable cause’ was present when the arrest was made.” Figueroa v. Mazza, 825 F.3d

89, 100 (2d Cir. 2016) (quoting Zalaski v. City of Hartford, 723 F.3d 382, 389, 390 (2d Cir.

2013) (internal quotation marks omitted)).

A police officer has arguable probable cause “if either (a) it was objectively

reasonable for the officer to believe that probable cause existed, or (b) officers of

reasonable competence could disagree on whether the probable cause test was

met.” Put another way, an arresting officer will find protection under the defense

of qualified immunity unless “no reasonably competent officer” could have

concluded, based on the facts known at the time of arrest, that probable cause

existed.

Id. (quoting Zalaski, 723 F.3d at 390; Malley v. Briggs, 475 U.S. 335, 341 (1986)) (internal

citations omitted).

Here, Defendants assert that the Arresting Officers are entitled to qualified

immunity because — even if there was not probable cause to arrest Oliver — “there was arguable

probable cause for plaintiff's arrest.” (Def. Sum. J. Br. (Dkt. No. 238) at 72 (emphasis in

original) (citing Bate, 2018 WL 4757940; Smith, 271 F. App’x at 66, Villa, 2013 WL 1385207,

at *16, n.5; Betts, 2013 WL 311124)) In making this argument, Defendants merely reiterate that

G.C.’s account provided sufficient grounds for Oliver’s arrest: “(Faced with the allegation that

a teacher caressed a young student’s arm while making inappropriate statements of love and

affection, there was probable cause to arrest plaintiff for endangering the welfare of a minor.”

(id. at 71-72)

As discussed above, Bate, Smith, Villa, Betts, and the other cases cited by

Defendants are not persuasive here, because the facts of those cases are dissimilar to those here.

In Bate, for example, the court found a detective entitled to qualified immunity

given the absence of proof showing that [the detective] was aware of a “bitter

relationship” between Plaintiff and the [six] girls, and the girls’ consistent and

detailed complaints — which were corroborated, at least in part, by [two of the

girls’] mothers as well as several adult mentors in the Big Brothers Big Sisters

program.

Ig

Bate, 2018 WL 4757940, at *24. Here, the Arresting Officers did not rely on multiple, detailed,

and corroborated complaints. They instead relied solely on G.C.’s account. And, as noted

above, Smith, Villa, and Betts do not involve allegations that the individual taken into custody

had endangered the welfare of a child in violation of N.Y. Penal Law § 260.10.

Here, the Court has determined that there are genuine issues of material fact as to

whether G.C.’s allegations — as she reported them to the Arresting Officers — were sufficient to

establish probable cause to arrest Oliver for endangering the welfare of a child. Whether officers

of reasonable competence could disagree as to whether the probable cause test was met presents

a close question that must be resolved by a jury. See Pace v. Town of Southampton, 678 F.

Supp. 2d 79, 85-87 (E.D.N.Y. 2010) (finding that “a jury should determine whether reasonably

competent officers could disagree about whether probable cause existed” where the court had

determined that there was a “material triable issue concerning whether . . . [the officer could]

reasonably believe that the [p]laintiff had committed the ‘family offenses’ of stalking or

harassment”). Accordingly, Defendants’ motion for summary judgment on Oliver’s false arrest

claims (Counts One and Three) will be denied.

C. Oliver’s Motion for Summary Judgment on his False Arrest Claims

Oliver moves for summary judgment on the grounds that

[nJo reasonable officer could have found probable cause for the crime of

endangering the welfare of a child or harassment considering (1) the facts (or lack

thereof) that were available to the officers at the time of the arrest, (2) the

trustworthiness of the testimony on which the officers’ relied, and (3) the officers’

failure to conduct further inquiry prior to Mr. Oliver’s arrest when a reasonable

officer would have done so.

29

(Pltf. Sum. J. Br. (Dkt. No. 242) at 14)'* According to Oliver, in making their probable cause

determination, the Arresting Officers did not, but should have, considered (1) that the incident

“occurred in a very public setting, including where students and another teacher were present at

the time of the alleged incident”; (2) that Oliver “continued to teach the student for at least a

week following the alleged incident without complaints from G.C. or another student”; (3) that

“the school itself had taken no steps to remove the teacher from the classroom”; (4) “the overall

dynamics of a middle-school classroom”; (5) “whether there was a corroborating witness[]”; (6)

“the age and trustworthiness of the complaining witness”; and (7) “if there were other motivating

factors underlying the reason for the complaint.” (Pltf. Sum. J. Br. (Dkt. No. 242) at 16-17)

As discussed above, where a law enforcement officer receives information from a

putative victim that a crime has been committed, probable cause exists “unless the circumstances

raise doubt as to the [victim’s] veracity.” Betts, 751 F.3d at 82. Where there is doubt as to the

victim’s veracity, “the officer may need to investigate further.” Hart, 2013 WL 6139648, at *5

(citation omitted).

Here, Oliver argues that G.C.’s delay in reporting the incident should have raised

doubts as to her veracity. (Pltf. Reply Br. (Dkt. No. 248) at 6) Although courts have held that a

victim’s delay in reporting a crime may undermine the victim’s credibility, courts have excused

the delay “where there is some reasonable explanation for the delay.” Douglas v. City of

Peekskill, No.21-CV-10644(KMK), 2025 WL 965018, at *9 (S.D.N.Y. Mar. 31, 2025)

14 Oliver further argues that Sergeant Gonzalez determined that probable cause existed to arrest

Oliver “only after Mr. Oliver had been arrested,” based on conversations he had with the NYPD

Legal Bureau or the Special Victims Unit. (Id. (emphasis in original)) But Gonzalez’s

communications with the Legal Bureau or the Special Victims Unit have no bearing on “whether

the facts known by the arresting officer at the time of the arrest objectively provided probable

cause to arrest.” See Gonzalez, 728 F.3d at 155 (2d Cir. 2013).

30

(collecting cases), Here, G.C. told the Arresting Officers that Oliver’s alleged misconduct took

place about a week earlier, and that she had reported it to Guidance Counselor Melendez the day

before she met with the officers. G.C. explained that she had gone to Melendez’s office on

multiple occasions during that week to report the incident, but every time she went to

Melendez’s office other students were there. (See Foti Decl., Ex. 21 (McLeod-G.C. Interview

Video Part 1) (Dkt. No. 244-21))

At summary judgment, a court “may not make credibility determinations or weigh

the evidence.” Khan v. City of New York, 19-cv-104 (JGK), 2022 WL 3100941 (S.D.N.Y. Aug.

4, 2022) (quoting Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017)) (citing Simpson v. City

of New York, 793 F.3d 259, 265 (2d Cir. 2015) (“Assessments of credibility . . . are matters for

the jury, not for the court on summary judgment.”)), Whether G.C.’s delay in reporting Oliver’s

alleged misconduct was reasonable under the circumstances is a question for the jury.

Accordingly, Oliver’s motion for summary judgment on his false arrest claims will be denied.

Ill. SECTION 1983 SUPERVISORY LIABILITY CLAIM AGAINST GONZALEZ

The FAC asserts a supervisory liability claim against Gonzalez under Section

1983, alleging that, while

Oliver also argues that “G.C.’s prior description of the events [to Melendez] was different

than that reported to the officers.” (Pltf. Reply Br. (Dkt. No. 248) at 6) Oliver does not explain

how the account G.C. gave to Melendez differs from what she said to the Arresting Officers,

however, nor does he contend that the Arresting Officers were aware of any such discrepancy.

Similarly, Oliver asserts that “the individual [that G.C.] claimed witnessed the alleged interaction

[between her and Oliver] had already been interviewed by the guidance counselor and did not

corroborate G.C.’s account.” (Id.) But Oliver does not contend that the Arresting Officers were

aware of any witness account that conflicted with G.C.’s allegations.

Finally, Oliver suggests that G.C.’s age undermines her credibility. (See Pltf. Sum. J. Br. (Dkt.

No. 242) at 17) But Oliver does not explain why the Arresting Officers should have doubted

G.C.’s account based merely on her age.

3]

acting under color of state law and in the course and scope of [his] official duties

and functions, [Gonzalez] devised, implemented, enforced, encouraged, and

sanctioned policies, practices and customs that were a direct and proximate cause

of constitutional violations suffered by Mr. Oliver, including by failing to

adequately investigate and substantiate citizen complaints of bias-based policing

by officers under [his] command and discipline any officers under [his] command

involved in bias-based policing.

(FAC (Dkt. No. 195) ¥ 186)

Defendants have moved for summary judgment on this claim, arguing that Oliver

cannot sustain a claim for supervisory liability because he has not established an underlying

constitutional violation. (Def. Sum. J. Br. (Dkt. No. 238) at 73 (citing Bastuk v. Cnty. of

Monroe, 628 F. App’x 4 (2d Cir. 2015); Elek v. Incorp. Vill. of Monroe, 815 F.Supp. 2d 801,

807-08 (S.D.N.Y. 2011))) According to Defendants, “[t]here was probable cause for the arrest

of plaintiff, and Sergeant Gonzalez made the decision to arrest plaintiff based on that probable

cause.” (Id. at 74)

In opposition, Oliver argues that he “has more than adequately pled his false

arrest claim under federal and state law, and Sergeant Gonzalez is directly liable for his direct

participation, in his role as a supervising officer, in Plaintiff's false arrest.” (Pitf. Opp. Br. (Dkt.

No. 245) at 42 (citing Pitf. R. 56.1 Resp. (Dkt. No. 246) § 213 (‘Sergeant Gonzalez was the

supervising officer responsible for making a probable cause determination on the day of Mr.

Oliver’s arrest.”))

A. Applicable Law

“It is well established that general respondeat superior liability does not exist

under Section 1983.” Carpenter v. City of New York, 984 F.Supp.2d 255, 268 (S.D.N.Y. 2013)

(citing Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004)).

establish individual liability under § 1983, a plaintiff must show (a) that the defendant is a

‘person’ acting ‘under the color of state law,’ and (b) that the defendant caused the plaintiff to be

32

deprived of a federal right.” Back, 365 F.3d at 122. “An individual cannot be held liable for

damages under § 1983 ‘merely because he held a high position of authority,’ but can be held

liable if he was personally involved in the alleged deprivation.” Id. at 127 (quoting Black v.

Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)). A plaintiff can establish “personal involvement” by

offering evidence that

“(1) the defendant participated directly in the alleged constitutional violation, (2)

the defendant, after being informed of the violation through a report or appeal,

failed to remedy the wrong, (3) the defendant created a policy or custom under

which unconstitutional practices occurred, or allowed the continuance of such a

policy or custom, (4) the defendant was grossly negligent in supervising

subordinates who committed the wrongful acts, or (5) the defendant exhibited

deliberate indifference .. . by failing to act on information indicating that

unconstitutional acts were occurring.”

Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015) (quoting Back, 365 F.3d at

127).

Where evidence of personal involvement is proffered, “a plaintiff must also

establish that the supervisor’s actions were the proximate cause of the plaintiff’s constitutional

deprivation’ and, ‘in the § 1983 context, a plaintiff must establish that a supervisor’s behavior

constituted intentional discrimination on the basis of a protected characteristic.”” Lewis v.

Roosevelt Island Operating Corp., 246 F.Supp.3d 979, 992 (S.D.N.Y. 2017) (quoting Raspardo

v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014)); see also Littlejohn, 795 F.3d at 314.

B. Analysis

Here, Oliver has proffered sufficient evidence to show that Gonzalez was

personally involved in Oliver’s arrest. Indeed, Gonzalez participated in G.C.’s interview and

was present for Oliver’s arrest. (Def. R. 56.1 Resp. (Dkt. No. 252) { 56-57)

In seeking summary judgment on Oliver’s supervisory liability claim against

Gonzalez, Defendants assert that — because there was probable cause to arrest Oliver — he cannot

33

show that Gonzalez violated his constitutional rights. (Def. Sum. J. Br. (Dkt. No. 238) at 73-74)

For the reasons set forth above, however, there are material issues of fact as to whether the

Arresting Officers had probable cause to arrest Oliver for the crime of endangering the welfare

of achild. Accordingly, Defendants are not entitled to summary judgment on Oliver’s Section

1983 supervisory liability claim on the grounds that there was probable cause to arrest Oliver,

and their motion for summary judgment on this claim (Count Four) will be denied.

IV. RACE DISCRIMINATION CLAIMS

Oliver asserts claims of “racial discrimination” in violation of Title VII, the

NYSHRL, and the NYCHRL against the DOE. (FAC (Dkt. No. 195) §f 190-93, 235-40) He

also asserts claims of “racial discrimination” in violation of Section 1983, the NYSHRL, and the

NYCHRL against Estwick. (Id. [J] 205-08, 235-40, 255-60)

Defendants contend that they are entitled to summary judgment on Oliver’s

discrimination claims because (1) “he was not subjected to an adverse employment action”; (2)

“the record does not support an inference of discrimination”; and (3) “defendants had legitimate

non-discriminatory reasons for their actions.” (Def. Sum. J. Br. (Dkt. No. 238) at 22)

In response, Oliver argues “(1) that his reassignment . . . was, in fact, an adverse

employment action that (2) resulted from Defendant Estwick’s discriminatory animus for Mr.

Oliver.” (Pltf. Opp. Br. (Dkt. No. 245) at 15)

34

A. Applicable Law

1. Discrimination Claims Under Section 1983,

Title VII, and the NYSHRL

The McDonnell Douglas burden-shifting framework applies to discrimination

claims under Section 1983, Title VII, and the NYSHRL.!® See McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973); Augustin v. Enlarged City Sch. Dist. of Newburgh, 616 F.Supp.2d

422, 439 (S.D.N.Y. 2009) (McDonnell Douglas applies to Section 1983 discrimination claims),

Carr v. N.Y.C. Transit Authority, 76 F.4th 172, 177 (2d Cir. 2023) (McDonnell Douglas applies

to Title VII discrimination claims); Rosen v. N.Y.C. Dep’t of Educ., 18 Civ. 6670 (AT), 2023

WL 2647532, *6 (S.D.N.Y. Mar. 27, 2023) (McDonnell Douglas applies to NYSHRL

discrimination claims).

Under the McDonnell Douglas framework,

plaintiff bears the initial burden of establishing a prima facie case of

discrimination. If the plaintiff does so, the burden shifts to the defendant to

articulate “some legitimate, non-discriminatory reason” for its action. If such a

reason is provided, plaintiff may no longer rely on the presumption raised by the

prima facie case, but may still prevail by showing, without the benefit of the

presumption, that the employer’s determination was in fact the result of . . .

discrimination. “The ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff remains at all times

with the plaintiff.”

Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir. 2008) (quoting Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981)) (internal citations omitted). The Second Circuit

16 The NYSHRL, which “‘historically utilized the same standard as Title VII, . was amended

in 2019 to align with the NYCHRL’s more liberal pleading standard.’” Edelman v. NYU

Langone Health System, 141 F. 4th 28, 45 n.9 (2d Cir. 2025) (quoting Qorrolli v. Metro. Dental

Assocs., 124 F.4th 114, 122-23 (2d Cir. 2024)). The amendment took effect on August 12, 2019,

however, after Oliver’s claims arose. See id. (citing 2019 N.Y. Laws 6 (A. 8421)). Because

(1) the August 12, 2019 amendment to the NYSHRL “does not have retroactive effect,”

McHenry v. Fox News Network, LLC, 510 F.Supp.3d 51, 69 (S.D.N.Y. 2020); and (2) Oliver’s

claims are premised on events that took place before August 12, 2019, Oliver’s Section, 1983,

Title VII, and NYSHRL claims are governed by the same standard.

35

has “consistently applied McDonnell Douglas at the summary judgment stage.” Bart v. Golub

Corp., 96 F.4th 566, 573 (2d Cir. 2024).

To make out a prima facie case of discrimination under Section 1983, Title VII,

and the NYSHRL, a plaintiff “must demonstrate the following: (1) [he] was within the protected

class; (2) [he] was qualified for the position; (3) [he] was subject to an adverse employment

action; and (4) the adverse action occurred under circumstances giving rise to an inference of

discrimination.” United States v. Brennan, 650 F.3d 65, 93 (2d Cir. 2011) (citation omitted).

“The burden of establishing a prima facie case is not onerous, and has been frequently described

as minimal.” Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 75 (2d Cir. 2016) (quoting Norton v.

Sam’s Club, 145 F.3d 114, 118 (2d Cir. 1998) (internal quotation marks omitted)). Although the

standard for a prima facie case is low, “a plaintiffs case must fail if []he cannot carry this

preliminary burden.” Beyer v. The Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008).

“lOJnce a plaintiff has established a prima facie case of discrimination, the burden

shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employer’s

action against the employee.” Carr, 76 F.4th at 177 (quoting Truitt v. Salisbury Bank & Tr. Co.,

52 F.4th 80, 86-87 (2d Cir. 2022) (internal quotation marks and alterations omitted)).

If the employer presents a “legitimate, nondiscriminatory reason” for its actions,

the burden “shifts back to the employee to show that the employer’s articulated reason is pretext

for discrimination.” Id. (quoting Truitt, 52 F.4th at 86-87). “The plaintiff bears ‘the ultimate

burden of persuading the court that she has been the victim of intentional discrimination.” Id.

(quoting Burdine, 450 U.S. at 256).

For discrimination claims brought under Title VII and the NYSHRL, a plaintiff

need only “show that unlawful discrimination was a ‘motivating factor’ in the employment

36

action.” Delville v. Firmenich Inc., 920 F.Supp.2d 446, 458 n.8 (S.D.N.Y. Jan. 31, 2013); see

also Jackson v. Am. C.L. Union, Inc., 21-CV-5037 (JPO), 2024 WL 4766983, *11 n.6 (S.D.N.Y.

Nov. 13, 2024) (“[U]nder the NYSHRL and the NYCHRL, Plaintiff can prevail on his claims by

merely establishing that discrimination was a ‘motivating factor’ for Defendants’ decision.”

(citation omitted)).

“CA] § 1983 plaintiff’s burden at the third stage of the McDonnell

Douglas analysis” is higher, however. Naumovski v. Norris, 934 F.3d 200, 217 (2d Cir. 2019).

To show unlawful discrimination under Section 1983, a plaintiff “must establish that the

employer’s stated reason would not, alone, constitute a sufficient basis for pursuing an adverse

action.” Id. at 214-15 (emphasis in original). In other words, a Section 1983 plaintiff must offer

evidence that “the defendant’s discriminatory intent was a ‘but-for’ cause of the adverse

employment action.” Id. at 214.

In determining whether a defendant’s stated reasons are pretextual, courts are

“decidedly not interested in the truth of the allegations against plaintiff,” but in “‘what motivated

the employer.’” McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (quoting

U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)) (emphasis in

McPherson); see also Moore v. Kingsbrook Jewish Med. Ctr., No. 11 Civ. 3625 (MKB), 2013

WL 3968748, at *13 (E.D.N.Y. July 30, 2013) (“[T]hat an employee ‘disagrees with an

employer’s evaluation of that employee’s misconduct or deficient performance, or even has

evidence that the decision was objectively incorrect, does not necessarily demonstrate, by itself,

that the employer’s proffered reasons are pretext.’”) (quoting Grant v. Roche Diagnostics Corp.,

No. 09-CV—1540, 2011 WL 3040913, at *11 (E.D.N.Y. July 20, 2011)).

37

2. Discrimination Claims Under the NYCHRL

“The Second Circuit has instructed that ‘[c]ourts must analyze NYCHRL claims

separately and independently from any federal and state law claims.’” Baker v. City of New

York, Fire Department, 22-CV-3868 (JGLC), 2025 WL 2774181, at *17 (S.D.N.Y. Sept. 29,

2025) (quoting Luo v. AIK Renovation Inc., No. 23-CV-5878 (LJL), 2024 WL 4444283, at *15

(S.D.N.Y. Oct. 8, 2024) (cleaned up) (citing Mihalik v. Credit Agricole Cheuvreux N. Am.., Inc.,

715 F.3d 102, 109 (2d Cir. 2013))).

Although discrimination claims under the NYCHRL are also subject to the

McDonnell Douglas burden-shifting framework, see Rosen v. N.Y.C. Dep’t of Educ., 18 Civ.

6670 (AT), 2023 WL 2647532, *6 (S.D.N.Y. Mar. 27, 2023) (McDonnell Douglas applies to

NYCHRL discrimination claims), “[t]o establish a prima facie case of discrimination under the

NYCHRL, a plaintiff is not required to show an adverse employment action and need only ‘show

differential treatment — that [he] was treated “less well” — because of a discriminatory intent.”

Livingston v. City of New York, 563 F.Supp.3d 201, 234 (S.D.N.Y. 2021) (quoting Mihalik, 715

F.3d at 110) (citing Kops v. PPM Am.., Inc., No. 15 Civ. 1584 (GBD), 2016 WL 7188793, at *5

(S.D.N.Y. Dec. 5, 2016)). “An employer may present a legitimate, non-discriminatory reason

for its actions, but it is entitled to summary judgment ‘only if the record establishe[s] as a matter

of law that discrimination played no role in its actions.’” Id. (quoting Kops, 2016 WL 7188793,

at *5 (citation omitted) (emphasis in Livingston and Kops).

Courts ruling on NYCHRL claims must consider “the totality of the

circumstances[,] . . . because ‘the overall context in which [the challenged conduct occurs]

cannot be ignored.’” Mihalik, 715 F.3d at 112 (quoting Hernandez v. Kaisman, 103 A.D.3d 106

(1st Dep’t 2012) (alteration in Mihalik)). “When applying this standard, however, district courts

must be mindful that the NYCHRL is not a ‘general civility code.’” Id. at 110 (quoting Williams

38

v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 79 (1st Dept. 2009)). “{W]here a plaintiff fails to

demonstrate that the defendant’s conduct was caused ‘at least in part by discriminatory or

retaliatory motive,’ or the defendant demonstrates that the alleged conduct did not exceed ‘petty

slights or trivial inconveniences,’ plaintiffs claim must fail.” Livingston, 563 F.Supp.3d at 234

(quoting Ramirez v. Michael Cetta Inc., No. 19 Civ. 986 (VEC), 2020 WL 5819551, at *18

(S.D.N.Y. Sept. 30, 2020) (quoting Mihalik, 715 F.3d at 113)).

B. Analysis

1, Prima Facie Case

The parties do not dispute that Oliver is a member of a protected class or that he

was qualified for his teaching position at the School. (Def. Sum. J. Br. (Dkt. No. 23 8) at 22)

What is in dispute is whether Oliver suffered an adverse employment action,!” and whether that

action occurred under circumstances giving rise to an inference of discrimination.

a. Adverse Employment Action

For purposes of discrimination claims, the Second Circuit “define[s] an adverse

employment action as a ‘materially adverse change’ in the terms and conditions of employment.”

Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (quoting Richardson v.

N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999)). “To be materially adverse, a

change in working conditions must be ‘more disruptive than a mere inconvenience or an

alteration of job responsibilities.” Id. (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.

17 Although Defendants concede that Oliver’s reassignment constitutes an adverse employment

action for purposes of his retaliation claims (Def. Opp. Br. (Dkt. No. 251) at 16), they make no

such concession for purposes of his discrimination claims. See Hayes v. GRE Real Estate

Mgnt. Servs., 24-cv-01459 (ER), 2025 WL 769162, at *12 (S.D.N.Y. Mar. 11, 2025) (“An

adverse employment action in the retaliation context is different from the discrimination context.

The standards for retaliation and discrimination are not ‘coterminous’ and consequently the

scope of adverse actions covered by a retaliation claim may be broader than a discrimination

claim.” (internal citations omitted)).

290

2003)). “Materially adverse” changes include “termination of employment, a demotion

evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits,

significantly diminished material responsibilities, or other indices . . . unique to a particular

situation.” Id. “Changes in assignments or responsibilities that do not ‘radical[ly] change’ the

nature of work are not typically adverse employment actions.” Potash v. Florida Union Free

Sch. Dist., 972 F.Supp.2d 557, 584 (S.D.N.Y. 2013) (quoting Galabya v. N.Y.C. Bd. of Ed., 202

F.3d 636, 640 (2d Cir. 2000). “Moreover, a plaintiff must set forth objective proof that the

alleged action was materially adverse.” Id. (citing Beyer v. Cnty. of Nassau, 524 F.3d 160, 163

(2d Cir. 2008)) (emphasis in original).

In arguing that Oliver’s administrative reassignment does not amount to an

adverse employment action for purposes of his discrimination claims, Defendants argue that

terms and conditions of employment ordinarily include the possibility that an employee

will be subject to an employer’s disciplinary policies.’” (Def. Sum. J. Br. (Dkt. No. 238) at 23

(quoting Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006)) (citing Brown v. City of Syracuse,

673 F.3d 141, 150 (2d Cir. 2012))) And Defendants further argue that “there is no evidence

DOE exceeded reasonable disciplinary procedures in reassigning plaintiff” (Id.)

Oliver responds that Defendants “ignore[] the plethora of Second Circuit case

law” holding that “disciplinary actions, demotions, reassignments, and other changes to the

terms, duties, or privileges of employment” can constitute adverse employment actions.'® (Pltf.

Opp. Br. (Dkt. No. 245) at 15 (citing de la Cruz v. N.Y.C. Hum. Res. Admin. Dep’t of Soc.

18 Oliver does not address Defendants’ arguments regarding other alleged adverse actions,

stating that “many of these acts are alleged only as part of Mr. Oliver’s retaliation claim(s)

against the DOE Defendants.” (PItf. Opp. Br. (Dkt. No. 245) at 15 n.2) Accordingly, in

connection with Oliver’s discrimination claims, the Court considers only whether his

reassignment constitutes an “adverse employment action.”

AON

Servs., 82 F.3d 16, 21 (2d Cir. 1996); Lore v. City of Syracuse, 670 F.3d 127, 170 (2d Cir.

2012); Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008))) Oliver also argues

that Defendants’ reliance on Joseph and Brown is misplaced because those cases “involved

temporary suspensions of employees due to their pending criminal charges,” whereas “at no time

during his reassignment did Mr. Oliver face criminal charges.” (Id. at 16-17)

The cases cited by Oliver are inapposite. In both de la Cruz and Brady, the

plaintiffs’ discrimination claims were premised on their transfers to different departments or

roles within their organizations. See de la Cruz, 82 F.3d at 18-19 (New York City Human

Resources Administration caseworker transferred from the Adoption Unit to the Foster Care

Unit); Brady, 531 F.3d at 132 (Wal-Mart employee’s transfer from the pharmacy to the parking

lot, and from the parking lot to the food department). These cases do not involve the temporary

reassignment of an employee pending the results of an internal investigation. And in Lore,

plaintiff was suspended for 10 days without pay, Lore, 670 F.3d at 170, whereas here Oliver was

administratively reassigned — not suspended — with pay.

By contrast, the cases cited by Defendants are directly on point, and indicate that

Oliver’s temporary reassignment with pay does not constitute an adverse employment action for

purposes of his discrimination claims under Section 1983, Title VII, and the NYSHRL.

In Joseph, for example, plaintiffs employment discrimination claim was

premised, in part, on his employer’s decision to place him on administrative leave, with pay —

first during a criminal investigation — and then during a subsequent internal investigation

conducted by the employer. Joseph, 465 F.3d at 89. The Second Circuit held that plaintiff's

“placement on administrative leave pending the criminal charges against him did not constitute

an adverse employment action,” because “[t]he terms and conditions of [his] employment did not

Al

include a right to expect that he would be allowed to continue his responsibilities while he was

facing serious criminal charges.” Id. at 91. As to “[t]he continued administrative leave

following the dismissal of the criminal charges,” the Second Circuit concluded that

“administrative leave with pay during the pendency of an investigation does not, without more,

constitute an adverse employment action.” Id.!°

Similarly, in Brown, plaintiff — a Syracuse police officer — brought a

discrimination claim based on the police department’s decision to suspend him, with pay,

pending a criminal investigation concerning his alleged involvement with a fifteen-year-old girl.

Brown, 673 F.3d at 150. Brown also disobeyed a direct order “to have no further contact with

the girl” and withheld from fellow officers information concerning the girl’s location. Id, at 145,

150-51. Under department regulations, an officer was subject to suspension where, inter alia, he

had disobeyed a direct order or where there was “substantial evidence to believe the . . . [officer]

ha[d] committed an act or omission of such flagrant nature as to render his/her continued

presence in [the] department a source of embarrassment.” Id. (internal citations and quotation

marks omitted). Given that it was undisputed that plaintiff had disobeyed a direct order and

deliberately misled fellow officers regarding the girl’s whereabouts, “[t]here [was] no contention

that [the Syracuse Police Department] took an action to suspend Brown with pay that [the

department’s] regulations did not permit.” Id. at 151. Given these circumstances, the Second

Circuit concluded that Brown’s suspension did not amount to an adverse employment action,

19 The Second Circuit noted that “[a]n exceptionally dilatory investigation might constitute a

material change in the terms and conditions of employment,” and thus amount to an adverse

employment action. Id. at 92. Here, Plaintiff has not argued that DOE’s internal investigation

was “exceptionally dilatory.”

4?

eee nee OT ee ee ee ee ee en ee ee nn eee ee een ie eNO od TIE ERE

manner.” Id. at 150-51.

As the Second Circuit explained in Joseph and reiterated in Brown, where an

employer has suspended or placed on administrative leave an employee,

[t]he relevant question [in determining whether the employee has suffered an

adverse employment action] is [] whether the employer has simply applied

reasonable disciplinary procedures to an employee or if the employer has

exceeded those procedures and thereby changed the terms and conditions of

employment. Paid suspension during an investigation could thus potentially be

adverse if the employer takes actions beyond an employee’s normal exposure to

disciplinary policies.

Brown, 673 F.3d at 150 (quoting Joseph, 465 F.3d at 92 n.1).

Accordingly, the question here is whether Defendants “applied reasonable

disciplinary procedures” when they reassigned Oliver for approximately two-and-a-half months

while the Office of Equal Opportunity and later Deputy Superintendent Mustillo conducted their

investigations into the allegations made against Oliver by G.C. and other students.

Oliver contends that “Defendants have never identified any DOE policy or

disciplinary procedures that would permit, or require, the DOE to reassign a teacher pending an

investigation by the [Office of Equal Opportunity] which, unlike [the SCI], investigates less-

serious claims of employee misconduct.” (Pltf. Opp. Br. (Dkt. No. 245) at 17 (emphasis in

original))

In response, Defendants cite Article 21(4) of the Collective Bargaining

Agreement between the DOE and Oliver’s union — the United Federation of Teachers — entitled

“Investigations and Reassignments.””° (See Def. Reply Br. (Dkt. No. 240) at 15) Article 21(4)

20 In his opposition brief, Oliver argues — without explanation — that Article 21(4) is

“inapplicable” to him. (PItf. Opp. Br. (Dkt. No. 245) at 20-21 n.3) Later in his brief, however,

Oliver relies on Article 21(4) to argue that his nearly seventy-day suspension exceeded the sixty-

43

provides that “[p]ending an investigation of possible misconduct and completion of [an

Education Law] §3020-a hearing, the Board (‘DOE’) may reassign any employee [] to... an

administrative assignment within his or her school... □□ (Foti Decl., Ex. Q (Collective

Bargaining Agreement) (Dkt. No. 247-23) at 5) Article 21(4) further provides that “(t]he DOE

shall prefer charges pursuant to Education Law §3020-a within sixty (60) days of an employee

being reassigned. ...” (Id.) “[S]hould the DOE not prefer §3020-a charges within sixty (60)

days, the employee shall be returned to his/her prior assignment.” (Id. at 6)

Here, Oliver was reassigned on March 22, 2019, and his reassignment ran through

June 5, 2019. (See Def. R. 56.1 Stmt. (Dkt. No. 237) ff 110) The reassignment was rescinded

on June 6, 2019. (Pltf. R. 56.1 Stmt. (Dkt. No. 243) 478) The period of his reassignment was

thus 75 calendar days. No formal disciplinary charges were ever brought against Oliver. Oliver

argues that the 75-day period that the Office of Equal Opportunity and Deputy Superintendent

Mustillo investigated his alleged misconduct was unreasonably long and violated the Collective

Bargaining Agreement’s 60-day limit. (Pltf, Opp. Br. (Dkt. No. 245) at 12, 20-21) But the

record does not bear out this assertion.

Under the “Investigations and Reassignments” section of the Collective

Bargaining Agreement, “all timelines shall be measured in calendar days, but shall not include

the summer break, all recess periods and holidays.” (Foti Decl., Ex. Q (Collective Bargaining

Agreement) (Dkt. No. 247-23) at 5) The DOE school calendar for the 2018-2019 school year

day limit contemplated by the agreement. (Id. at 21) Oliver cannot have it both ways, and it is

plain that Article 21(4) governs the DOE’s ability to “reassign an employee” “[p]ending

investigation of possible misconduct.” (Foti Decl., Ex. Q (Collective Bargaining Agreement)

(Dkt. No. 247-23) at 5) Nothing in the text suggests that Article 21(4) does not cover the

investigation conducted by the DOE’s Office of Equal Opportunity.

44

shows that New York City schools were in spring recess from April 19, 2019 through April 26,

2019, and were not in session on Memorial Day (May 27, 2019) or on Eid al-Fitr (June 4, 2019).

2018-19 School Calendar Year, N.Y.C. Dep’t of Educ. (Apr. 10, 2018),

https://www.ps42m.org/wp-content/uploads/2019/06/201819SchoolYearCalendar.pdf.”!

Accordingly, ten days within the 75-day period running from March 22, 2019 through June 5,

2019 are not counted.

Moreover, the 60-day period set forth in the Collective Bargaining Agreement

does not apply “in cases where the reassignment . . . was caused by (i) an allegation of sexual

misconduct defined in section 6 below that is being investigated by the Special Commissioner of

Investigation for the New York City School District (‘SCI’).” (Foti Decl., Ex. Q (Collective

Bargaining Agreement) (Dkt. No. 247-23) at 5) In Section 6 of the Collective Bargaining

Agreement, “sexual misconduct” is defined as

behavior that is intended to initiate, create, foster or advance a romantic or sexual

relationship by an employee with a student, whether physical, verbal, in writing or by

electronic means, regardless of location. It includes:

(1) Any sexual physical contact, or touching, without a legitimate purpose. . .

[and]

(3) ... making sexual or romantic comments or discussing sexual acts with a

student, for the purpose of initiating, creating, fostering or advancing a

romantic or sexual relationship.

(Id. at 11) The definition of “sexual misconduct” set forth in the Collective Bargaining

Agreement is broad enough to include Oliver’s alleged stroking of G.C.’s arm and his comment

“T know you love me.”

1 The Court takes judicial notice of the New York City Public School Calendar for the 2018-

2019 school year. See Gonzales v. Nat’] Westminster Bank PLC, 847 F. Supp. 2d 567, 569 n.2

(S.D.N.Y. 2012) (a court may “take judicial notice of publicly available information including

newspaper articles and other public disclosures”).

45

The record indicates that SCI’s investigation of Oliver’s alleged misconduct

began on March 22, 2019 — after Guidance Counselor Melendez reported G.C.’s allegations to

SCI on March 21, 2019 (PItf. R. 56.1 Stmt. (Dkt. No. 243) 4 44; see Def. R. 56.1 Stmt. (Dkt. No.

237) at 110) — and continued until March 27, 2019, when SCI referred the investigation into

Oliver’s alleged misconduct to DOE’s Office of Special Investigations. (Arko Decl., Ex. V

(Bisogna Ltr.) (Dkt. No. 253-22)) Under the Collective Bargaining Agreement, the five-day

period between March 22, 2019 and March 27, 2019 would be excluded from the 60-day period,

because investigations of sexual misconduct by SCI are not subject to the 60-day period.

In sum, the evidence shows that once the excluded time periods set forth in the

Collective Bargaining Agreement are applied — whether school recess, holidays, or days in which

sexual misconduct allegations were under investigation by SCI - DOE did not violate the 60-day

limit set forth in the Collective Bargaining Agreement for preferring charges or returning Oliver

to his previous assignment. Because DOE did no more than apply its reasonable disciplinary

procedures — as set forth in the Collective Bargaining Agreement — Oliver has not proffered

evidence sufficient to create a material issue of fact as to whether he suffered an adverse

employment action for purposes of his Section 1983, Title VII, and NYSHRL discrimination

claims. See Brown, 673 F.3d at 150; Joseph, 465 F.3d at 92 n.1. Accordingly, Defendants are

entitled to summary judgment on these claims.

b. Inference of Discrimination

In seeking summary judgment on Plaintiff's Section 1983, Title VII, and

NYSHRL discrimination claims, Defendants also argue that Oliver has not proffered either direct

46

or circumstantial evidence supporting an inference of racial discrimination.” (Def. Sum. J. Br.

(Dkt. No. 238) at 26-30) In response, Oliver contends that discriminatory intent can be inferred

because certain “similarly situated” White male teachers “received more favorable treatment.”

(Pitf. Opp. Br. (Dkt. No. 245) at 18)

For Oliver’s Section 1983, Title VII, and NYSHRL discrimination claims to

survive summary judgment, he must show that he suffered an adverse employment action in

circumstances giving rise to an inference of discrimination. As discussed above, Oliver has not

offered evidence sufficient to demonstrate that he suffered an adverse employment action. But

even if Oliver had proffered such evidence, these claims would still fail, because Oliver has not

shown that any such adverse employment action took place in circumstances giving rise to an

inference of discriminatory intent.

A discrimination plaintiff may demonstrate discriminatory intent by “showing

that the employer treated plaintiff ‘less favorably than a similarly situated employee outside his

protected group.’” Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). “To

22 Tn asserting that “[t]here is no direct evidence supporting an inference of race discrimination,”

Defendants address (1) “Estwick’s alleged comment in early 2012 that plaintiff was an

‘affirmative action hire’” (Def. Sum. J. Br. (Dkt. No. 238) at 26; FAC (Dkt. No. 195) 4 53); (2)

the panel’s findings in the 2015 arbitration decision (id. at 27); and (3) Oliver’s claim in the FAC

that Defendants were “motivated by ‘stereotyping of Black men as predators.’” (Id. at 28

(quoting FAC (Dkt. No. 195) 9 59)).

In his opposition brief, Oliver does not respond to Defendants’ argument that there is no direct

evidence of discriminatory intent. Accordingly, any argument that the above matters constitute

direct evidence of discriminatory intent is deemed abandoned. See Senno v. Elmsford Union

Free School Dist., 812 F.Supp.2d 454 (S.D.N.Y. 2011) (“Plaintiff did not address this argument

in his opposition papers, which operates as an abandonment of the argument.”).

Moreover, for the reasons set forth above, the Court will not rely on the arbitration decision as

evidence that Oliver suffered harassment or other unfair treatment at Tompkins prior to 2014.

See Park W Radiology v. CareCore Nat’] LLC, 675 F. Supp. 2d 314, 329-30 (S.D.N.Y. 2009).

47

establish an inference of discriminatory intent through disparate treatment, a plaintiff must allege

that ‘[he] was similarly situated in all material respects to the individuals with whom [he] seeks

to compare [himself].” Kunik v. N.Y.C. Dep’t of Educ., 436 F.Supp.3d 684, 697 (S.D.N.Y.

2020) (quoting Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014) (quoting Graham v.

Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000))). “‘An employee is similarly situated to co-

employees if they were (1) subject to the same performance evaluation and discipline standards

and (2) engaged in comparable conduct.’” (Id. (quoting Abdul-Hakeem v. Parkinson, 523 F.

App’x 19, 21 (2d. Cir 2013) (summary order) (quoting Ruiz v. Cnty. of Rockland, 609 F.3d 486,

493-94 (2d Cir. 2010))).

“Ordinarily, the question whether two employees are similarly situated is a

question of fact for the jury.” Mandell, 316 F.3d at 379. “This rule is not absolute, however, and

a court can properly grant summary judgment where it is clear that no reasonable jury could find

the similarly situated prong met.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n.2

(2d Cir. 2001). To survive summary judgment, plaintiff must at least “provide ‘an objectively

identifiable basis for comparability’ between h[im]self and other employees.” Goldman v.

Admin. for Children’s Serv., No. 04 Civ. 7890 (GEL), 2007 WL 1552397, at *7 (S.D.N.Y. May

29, 2007) (citation omitted).

Here, the FAC alleges that “Oliver was subject to disparate treatment compared to

[three White male teachers],” which the FAC refers to as “White Teacher Nos. 1, 2, and 3.”

(FAC (Dkt. No. 195) §§] 143-56)) The record before this Court indicates that White Teacher No.

48

2 and White Teacher No. 3 are the same person.”? Accordingly, the Court addresses only White

Teacher No. 1 and White Teacher No. 2 as comparators.

i. White Teacher No. 1

According to an Office of Special Investigations (“OSI”) report dated November

6, 2017, that office “received referrals from the Special Commissioner of Investigations SCI’)

concerning the conduct of [Estwick and White Teacher No. 1].” (Arko Decl., Ex. DD (OSI

Report) (Dkt. No. 236-30) at 11) “An anonymous complainant” reported that

e Onan unknown date, in either April or May 2017, [White Teacher No. 1]

put tape on Student A’s mouth during class and told her to shut up.

e [White Teacher No. 1] grabbed Students B, C, and an unidentified female

student and told them that they “need to gain weight.”

e [White Teacher No. 1] was verbally abusive to students, especially

Student D; no further details were provided.

e Principal Estwick was aware of the foregoing incidents and failed to report

[White Teacher No. 1’s] actions.

(Id.) An OSI investigator later interviewed Student C, who said that White Teacher No. 1 had

instructed her to move chairs in the classroom, and had remarked that doing so “would give her

muscles ‘on those things you call arms.’” (Id. at 11-12) Student C denied that White Teacher

No. | had ever “grabbed” her. (Id. at 12)

The FAC alleges that during the 2017-2018 school year G.C. made accusations of misconduct

against White Teacher No. 2. (FAC (Dkt. No. 195) § 149) At deposition, G.C. identified White

Teacher No. 2 as Ulysses Soto. (Foti Decl., Ex. 9 (G.C. Dep.) (Dkt. No. 244-9) at 16-17) With

respect to White Teacher No. 3, the FAC alleges that he “inappropriately touched [a] student and

made the student feel uncomfortable.” (FAC (Dkt. No. 195) ¥ 153) In support of this allegation,

Oliver cites a complaint filed with the Office of Equal Opportunity, which names Soto as the

offending teacher. (Pltf. R. 56.1 Resp. (Dkt. No. 246) J 166; Foti Decl., Ex. Y (Comparator

Discovery) (Dkt. No. 247-32) at 118) Accordingly, White Teacher No. 2 and White Teacher No.

3 are the same person.

49

On October 5, 2017, the OSI investigator interviewed Principal Estwick regarding

the anonymous complaints regarding White Teacher No. 1.

Principal Estwick stated that he had heard of [Student A’s] allegation “through the

grapevine” and so he questioned [White Teacher No. 1] about it. [White Teacher

No. 1] explained to him that he was just joking with Student A and that the

student was not upset about it. Principal Estwick then contacted [Student A’s

mother], who had already been informed of the matter by Student A. [Student

A’s mother] stated that Student A informed her that [White Teacher No. 1] was

simply joking and added that her family has a close, friendly relationship with

[White Teacher No. 1]. Principal Estwick stated that he had informed [White

Teacher No. 1] that his actions were “inappropriate”; however, he did not

discipline [White Teacher No. 1] or report the incident because [Student A’s]

mother stated that she did not wish to pursue the matter. The principal stated that,

in retrospect, he should have filed an Online Occurrence Reporting System

(“OORS”) entry for the incident.

(Id. at 13)

Principal Estwick also recalled speaking to [Student B’s mother] about [White

Teacher No. 1] being “too aggressive in his manner” and for his inappropriate

comments to Student B, however, Principal Estwick could not recall [Student B’s

mother] alleging that [White Teacher No. 1]’s comments concerned Student B’s

weight or appearance. Principal Estwick further stated that he did not believe that

the comments reported to him constituted any misconduct, and so he did not

believe that the information had to be reported or documented.

(Id.)

Principal Estwick stated that he spoke to [Student C’s mother] about [White

Teacher No. 1] instructing Student C to remain after class to stack chairs and

making a “muscle” comment to Student C, but the principal could not recall the

exact works that [Student C’s mother] used to described the comment. Principal

Estwick further stated he mediated a meeting between [White Teacher No. 1] and

Student C, during which [White Teacher No. 1] apologized to Student C for

upsetting her.

(Id.) Lastly, Estwick was “unaware of any verbal abuse allegation against [White Teacher No. 1]

concerning Student D.” (id.)

Two “letters to file for professional misconduct” were issued against White

Teacher No. 1 on May 26, 2017, and December 11, 2017, for having inappropriate interactions

50

with students. Neither incident involved sexual misconduct. (Def. R. 56.1 Stmt. (Dkt. No. 237)

{ 175 (citing Arko Decl., Ex. DD (OSI Report) (Dkt. No. 236-30) at 9-10, 22-23, 25-26))

White Teacher No. | was not administratively reassigned pending an

investigation into his conduct. (See Def. R. 56.1 Stmt. (Dkt. No. 237) 164-75)

ii. White Teacher No. 2

The FAC alleges that “[d]uring the 2017-2018 academic year, the year before

G.C. made false accusations about Mr. Oliver, G.C. made almost the exact same allegation about

[White Teacher No. 2,] who was G.C.’s advisor.” (FAC (Dkt. No. 195) 149) According to the

FAG, “G.C. claimed that White Teacher No. 2 inappropriately rubbed against her.” (Id.) “G.C.

subsequently complained to [the School], requesting that White Teacher No. 2 no longer serve as

her advisor.” (Id.)

G.C. was asked at deposition whether White Teacher No. 2 “ever ma[d]e [her]

uncomfortable,” however, and she answered, “[n]o.” (Foti Decl., Ex. 9 (G.C. Dep.) (Dkt. No.

244-9) at 16) When asked whether it was true that G.C. “complained about [White Teacher No.

2] making [her] uncomfortable in sixth grade and that’s why [G.C.’s] advisory was changed,”

G.C. explained that “[she] just didn’t like [White Teacher No. 2] so [she] just switched”; that she

“found [White Teacher No. 2] annoying”; and that she generally preferred her new advisor. (Id.

at 16-17) When asked whether White Teacher No. 2 ever “[did] anything to you that you would

describe as perverted,” G.C. answered, “[n]o.” (Id. at 132)

On March 5, 2018, OSI referred a complaint of sexual harassment regarding

White Teacher No. 2 — which had been filed on behalf of an eighth-grade student — to the Office

of Equal Opportunity. (Foti Decl., Ex. Y (Comparator Discovery) (Dkt. No. 247-32) at 117-18)

This student alleged that, in approximately February 2018, White Teacher No. 2 made the

student feel “uncomfortable” because he was “staring” and “looking at her weird” during a

4]

school dance. (Id. at 118) According to an Office of Equal Opportunity report, the investigation

was closed on September 25, 2018. (Id.)

White Teacher No. 2 was not administratively reassigned pending an

investigation into his conduct. (See Def. R. 56.1 Stmt. (Dkt. No. 237) {J 164-75)

iii. Analysis

Oliver is not similarly situated to either White Teacher No. 1 or White Teacher

No. 2.

Oliver was arrested at Tompkins in view of students and faculty (Def. R. 56.1

Stmt. (Dkt. No. 237) § 102) after (1) G.C. reported his conduct to her mother; (2) G.C.’s mother

called 911; (3) police officers responding to the 911 call interviewed G.C. and her mother at the

School; and (4) police officers concluded that G.C.’s allegations against Oliver provided grounds

to arrest him. Testagrose v. N.Y.C Hous. Auth., 369 F. App’x 231, 232 (2d Cir. 2010) (summary

order)) indicates that an arrest of this sort can be an important factor in conducting the “similarly

situated” analysis.

In Testagrose, plaintiff was terminated by the New York City Housing Authority

after her arrest for weapons possession, drug possession, and criminal mischief. Plaintiff brought

a Section 1983 claim against the New York City Housing Authority alleging that her termination

was the result of discriminatory animus. “To show discriminatory animus, Testagrose primarily

relied on evidence” “that she was disciplined more harshly than other similarly situated male

caretakers.” Testagrose, 369 F. App’x at 231. The Second Circuit affirmed the district court’s

ruling that the alleged comparators were not “similarly situated,” finding that “[t]he individuals

Testagrose identifies as comparators either were not arrested or were arrested for less serious

offenses.” Id, at 232. Given that Oliver was arrested at the School — prior to the DOE’s decision

to reassign and investigate him — Oliver was not “similarly situated in all material respects” to

52

White Teacher No. 1 and White Teacher No. 2, who were never arrested. See Kunik, 436

F.Supp.3d at 697; Testagrose, 369 F. App’x at 231.74

Rubert v. King, No. 19-CV-2781 (KMK), 2020 WL 5751513 (S.D.N.Y. Sept. 25,

2020) is instructive here. In that case, plaintiff—a Puerto Rican Walmart employee — “engaged

in a ‘confrontation’” with another Walmart employee in the store’s parking lot. Id. at *2. “The

altercation and arrest led to [p]laintiff's termination by Walmart and his conviction in [state

court].” Id. Plaintiff then brought Section 1981, Title VII, and NYSHRL claims against

Walmart alleging that his termination was the result of discriminatory animus. In concluding

that the alleged comparator — a White Walmart employee — was not similarly situated, the court

noted that

while the [ ] confrontation [in the parking lot] led to Plaintiff’s arrest and

conviction, Plaintiff has alleged nothing remotely similar with respect to [the

White employee]. An employee who has been arrested for and convicted of

assault on or near the workplace premises is not similarly situated to an employee

who was not arrested or convicted for assault.

Id. at *8 (internal citation omitted).

24 There are other distinctions between Oliver and the alleged comparators. As to White

Teacher No. 1, the allegations against him or her were premised on an anonymous complaint

(Arko Decl., Ex. DD (OSI Report) (Dkt. No. 236-30) at 11), whereas here Estwick and other

DOE employees heard directly from G.C. Moreover, none of the allegations against White

Teacher No. | involved inappropriate touching with sexual or romantic overtones. (See id.)

Finally, Estwick was not able to substantiate most of the anonymous complainant’s allegations.

(See id, at 13) For example, Student A’s mother stated that White Teacher No. 1 was a family

friend and viewed White Teacher No. 1’s conduct as “simply joking.” She asked Estwick not to

pursue the matter. (See id. at 12) By contrast, G.C.’s mother contacted 911. Similarly, Student

C denied the anonymous complainant’s allegation that White Teacher No. 1 had “grabbed” her.

(See id.) In sum, Estwick’s investigation of White Teacher No. | did not indicate that

reassignment or other discipline was appropriate.

As to White Teacher No. 2, G.C.’s allegations against this teacher did not include comments of a

sexual or romantic nature. And the March 5, 2018 complaint against White Teacher No. 2 — that

he or she stared at the student at a school dance (Foti Decl., Ex. Y (Comparator Discovery) (Dkt.

No. 247-32) at 117-18) — is not comparable to the misconduct Oliver allegedly engaged in.

53

In sum, Oliver has not shown that his “employer treated [him] ‘less favorably than

a similarly situated employee outside his protected group,’” and therefore he has not established

a prima facie case of discrimination under Section 1983, Title VII, or the NYSHRL. See

Mandell, 316 F.3d at 379.

2. Oliver’s NYCHRL Discrimination Claim

To establish a prima facie case of discrimination under the NYCHRL, Oliver

“need only ‘show differential treatment — that [he] was treated “less well” — because of a

discriminatory intent.’” Livingston, 563 F.Supp.3d at 234. As under federal and state law,

however, “[t]o allege disparate treatment pursuant to the ... NYCHRL|] a plaintiff has to show

that the coworker comparators are similarly situated to the plaintiff in all material respects.”

Moukdad v. NYU Langone Health Sys., 2026 WL 774270, at *6 (S.D.N.Y. Mar. 18, 2026). For

the reasons stated above, Oliver has not proffered evidence sufficient to demonstrate that there is

a material issue of fact as to whether the alleged comparators are similarly situated to him in all

material respects. Accordingly, Oliver has not established an inference of discrimination under

the NYCHRL.

* # * *

Because Oliver has not proffered evidence sufficient to establish an inference of

discrimination under Section 1983, Title VII, the NYSHRL, and the NYCHRL, Defendants are

entitled to summary judgment on his race discrimination claims brought under these statutes

(FAC (Dkt. No. 195) Counts Five, Eight, Fourteen, and Seventeen).

HOSTILE WORK ENVIRONMENT CLAIMS

Oliver contends that the DOE subjected him to a hostile work environment in

violation of Title VII, the NYSHRL, and the NYCHRL. (FAC (Dkt. No. 195) {J 194-97, 241-

54

46, 261-66) Oliver further contends that Estwick subjected him to a hostile work environment in

violation of Section 1983, the NYSHRL, and the NYCHRL. (Id. Ff 209-12, 241-46, 261-66)

Defendants have moved for summary judgment on Oliver’s hostile work

environment claims on the grounds that (1) Oliver “is barred from relying on any purportedly

hostile acts predating the General Release as constituting part [of] his hostile work environment

claims in this action”; (2) “[t]o the extent [P]laintiff claims his arrest was part of a hostile work

environment, it is undisputed that no one from DOE caused that event”; and (3) “[t]o the extent

[Plaintiff alleges other acts that occurred after he signed the General Release constitute a hostile

work environment... [Oliver] has not developed any evidence that they were motivated by

discriminatory animus aside from Estwick’s alleged 2012 stray comment.” (Def. Sum. J. Br.

(Dkt. No, 238) at 36, 38)

Oliver responds that “[t]o the extent that [he] refers to acts that occurred before

2019, or that were the basis for his 2017 action, it is to provide an historical context for the

current action and to demonstrate how these acts created the overall environment in which he

worked at the time of G.C.’s allegations in 2019.” (Pltf. Opp. Br. (Dkt. No. 245) at 26) As

evidence of a hostile work environment, Oliver cites the following:

(1) an unlawful and humiliating public arrest at [Tompkins]; (2) being the subject

of an unwarranted investigation; (3) being reassigned to the Rubber Room to sit

and idle there for two and a half months; (4) being unable to transfer to a different

DOE school or participate in per session activities due to his reassignment, which

resulted in a loss of additional income; (5) having an email sent to [Tompkins]

parents regarding reassignment to the Rubber Room, (6) receiving a disciplinary

letter, which prevented Mr. Oliver from transferring to a different DOE school;

(7) having his reassignment to the Rubber Room permanently listed on his DOE

employment records; and (8) refusal from Defendant Estwick to remove outdated

counseling and disciplinary letters from his file.

(Id, at 26-27) As with his discrimination claims, Oliver argues “the record clearly establishes

that Mr. Oliver was treated less-well than his White peers.” (Id. at 27)

55

A. Applicable Law

1. Hostile Work Environment Claims Under

Section 1983, Title VII, and the NYSHRL

custom or policy of harassment and other discriminatory acts giving rise to

hostile work environment claims can form the basis of [S]ection 1983 claims.’” Chislett v.

N.Y.C. Dep’t of Educ., 157 F.4th 172, 187 (2d Cir. 2025) (quoting Matusick v. Erie Cnty. Water

Auth., 757 F.3d 31, 62 (2d Cir. 2014)). Similarly, under Title VII and the NYSHRL a plaintiff

may bring an action for “discriminatory conduct that manifests itself in a hostile working

environment.” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 151 n.6 (2d Cir. 2014) (“Claims

under the New York Human Rights Law are ‘generally governed by the same standards as

federal claims under Title VII.’”) (quoting Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597,

609 (2d Cir. 2006)).

To establish a hostile work environment claim under Section 1983, Title VI, and

the NYSHRL, “a plaintiff must demonstrate that ‘the workplace is permeated with

discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter

the conditions of [his] employment and create an abusive working environment.” Guzman v.

City of N.Y, 93 F.Supp.3d 248, 263 (S.D.N.Y. 2015) (quoting Demoret v. Zegarelli, 451 F.3d

140, 149 (2d Cir. 2006) (internal quotation marks omitted)). ““This standard has both objective

and subjective components: the conduct complained of must be severe or pervasive enough that

a reasonable person would find it hostile or abusive, and the victim must subjectively perceive

the work environment to be abusive.’” Bentley v. AutoZoners, LLC, 935 F.3d 76, 90 (2d Cir.

2019) (quoting Raspardo, 770 F.3d at 114).

“Additionally, the plaintiff must establish that the hostile work environment was

due to [his] protected characteristic.” Chislett, 157 F.4th at 187; see also Guzman 93 F.Supp.3d

56

at 263 (“a plaintiff bringing a hostile work environment claim must demonstrate that the hostile

conduct at issue was carried out because of [his] membership in a protected class”) (emphasis in

original). An inference of such discriminatory intent “may be derived from a variety of

circumstances, including, ‘invidious comments about others in the employee’s protected group,’

or ‘the more favorable treatment of employees not in the protected group.’” Dodd v. My Sisters’

Place, Inc., No. 21 CV 10987 (VB), 2024 WL 3028474, at *11 (S.D.N.Y. June 17, 2024)

(quoting Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994)). At summary

judgment, “a plaintiff must introduce evidence of hostile conduct that a reasonable juror could

find was a result of the plaintiffs membership in a protected class.” Gore v. RBA Grp., Inc., No.

03-CV-9442 (KMK) JCF, 2008 WL 857530, at *6 (S.D.N.Y. Mar. 31, 2008) (citing Brennan v.

Metro. Opera Ass’n, 192 F.3d 310, 318 (2d Cir. 1999)).

“As a general rule, [allegedly hostile] incidents must be more than “episodic; they

must be sufficiently continuous and concerted in order to be deemed pervasive.” Tolbert v.

Smith, 790 F.3d 427, 439 (2d Cir. 2015) (quoting Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.

2002)). “[A] plaintiff alleging a hostile work environment ‘must demonstrate either that a single

incident was extraordinarily severe, or that a series of incidents were “sufficiently continuous

and concerted” to have altered the conditions of her working environment.’” Alfano, 294 F.3d at

374 (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) and Perry v. Ethan

Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). “‘The fact that the law requires harassment to be

severe or pervasive before it can be actionable does not mean[, however,] that employers are free

from liability in all but the most egregious of cases,’” Whidbee v. Garzarelli Food Specialties,

Inc., 223 F.3d 62, 70 (2d Cir. 2000) (quoting Torres v. Pisano, 116 F.3d 625, 631 (2d Cir.

57

1997)), and the Second Circuit has “cautioned against setting the bar too high.” Terry, 336 F.3d

at 148,

“In assessing whether a plaintiff has met [his] burden, ‘courts should examin[e]

the totality of the circumstances, including: the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with the victim’s [job] performance.” Belton v. City of New

York, No. 12 Civ. 6346 (JPO), 2014 WL 4798919, at *8 (S.D.N.Y. Sept. 26, 2014) (alterations

in original) (quoting Rivera v. Rochester Genesee Reg’| Transp. Auth., 743 F.3d 11, 20 (2d Cir.

2014)).

2. Hostile Work Environment Claims Under the NYCHRL

“Under the NYCHRL, there are not separate standards for ‘discrimination’ and

‘harassment’ claims; rather, ‘there is only the provision of the law that proscribes imposing

different terms, conditions and privileges of employment based [on a protected characteristic].’”

Clarke v. InterContinental Hotels Grp., PLC, No. 12 Civ. 2671 (JPO), 2013 WL 2358596, at *11

(S.D.N.Y. May 30, 2013) (quoting Sotomayor v. City of New York, 862 F. Supp. 2d 226, 261

(E.D.N.Y. 2012)). In order to prevail on a hostile work environment claim under the NYCHRL,

a plaintiff “‘need only demonstrate by a preponderance of the evidence that [he] has been treated

less well than other employees’ because of a protected trait.” Johnson v. Strive E. Harlem Emp.

Grp., 990 F. Supp. 2d 435, 445 (S.D.N.Y. 2014) (quoting Mihalik, 715 F.3d at 110). That is,

“the plaintiff need only show differential treatment — that [he] is treated ‘less well’ — because of a

discriminatory intent.” Mihalik, 715 F.3d at 110. Moreover, “[t]he NYCHRL imposes liability

for harassing conduct that does not qualify as ‘severe or pervasive,’ and ‘questions of “severity”

and “pervasiveness” are applicable to consideration of the scope of permissible damages, but not

to the question of underlying liability.” Bermudez v. City of New York, 783 F. Supp. 2d 560,

58

579 (S.D.N.Y. 2011) (quoting Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 76 (1st Dept.

2009)). As noted above, however, “[w]hen applying this standard . . . district courts must be

mindful that the NYCHRL is not a ‘general civility code.”” Mihalik, 715 F.3d at 110 (quoting

Williams, 61 A.D.3d at 79).

B. Analysis

To establish a prima facie case of hostile work environment, Oliver must proffer

evidence supporting an inference of discriminatory intent. In seeking to demonstrate

discriminatory intent, Oliver contends that he “was treated less-well than his White peers.” (PItf.

Opp. Br. (Dkt. No. 245) at 27) As discussed above in connection with Oliver’s discrimination

claims, however, he was not “similarly situated in all material respects” to White Teacher No. 1

and White Teacher No. 2 because, inter alia, White Teacher No. 1 and White Teacher No. 2 were

not the subject of a 911 call by a child’s parent and were not arrested on School property by the

NYPD. See Kunik, 436 F.Supp.3d at 697; Testagrose, 369 F. App’x at 231; Rubert, 2020 WL

5751513, at *8. Because Oliver has not proffered sufficient evidence to establish an inference of

discrimination, he cannot sustain a hostile work environment claim under Section 1983, Title

VIL the NYSHRL, or the NYCHRL. See Mihalik, 715 F.3d at 110.

Accordingly, Defendants are entitled to summary judgment on Oliver’s hostile

work environment claims under Section 1983, Title VII, the NYSHRL, and the NYCHRL (FAC

(Dkt. No. 195) Counts Six, Nine, Fifteen, and Eighteen).

VI. RETALIATION CLAIMS

Oliver asserts Title VII, NYSHRL, and NYCHRL retaliation claims against the

DOE (FAC (Dkt. No. 195) 99 198-204, 247-54, 267-75), and Section 1983, NYSHRL, and

NYCHRL retaliation claims against Estwick. (Id. J] 213-19, 247-54, 267-75)

59

The parties have cross-moved for summary judgment on Oliver’s retaliation

claims under Title VIL, the NYSHRL, and the NYCHRL.”> (Pltf. Sum. J. Br. (Dkt. No. 242) at

18-24; Def. Sum. J. Br. (Dkt. No. 238) at 40-48) Defendants have also moved for summary

judgment on Oliver’s Section 1983 retaliation claim against Estwick. (Def. Sum. J. Br. (Dkt. No.

238) at 48-49)

A. Applicable Law

1. Retaliation Claims Under Section 1983, Title VII, and the NYSHRL

“Federal and state law retaliation claims are reviewed under the burden-shifting

approach of McDonnell Douglas.” Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir.

2013). To establish a prima facie case of retaliation under Section 1983, Title VII, and the

NYSHRL, a plaintiff must show “1) ‘participation in a protected activity’; 2) the defendant’s

knowledge of the protected activity; 3) ‘an adverse employment action’; and 4) ‘a causal

connection between the protected activity and the adverse employment action.’” Kwan, 737

F.3d at 844 (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)); see

also Owens v. City of New York Dep’t of Educ., 17-Cv-519 (SHS), 2021 WL 3862974, at *15

(S.D.N.Y. Aug. 30, 2021) (“[T]he elements of a prima facie case of retaliation [under Section

1983, the ADA, Title VII, the NYSHRL, and the NYCHRL] are essentially the same”); Emanuel

v. City of New York, 23-CV-2980 (JMF), 2024 WL 3638328, at *6 (S.D.N.Y. Aug. 2, 2024)

(“[T]he elements required for a prima facie case of retaliation under Section 1983 are the same as

those required under Title VII.”) (citing Littlejohn,795 F.3d at 312).

For purposes of a retaliation claim, a “protected activity” is an “action taken to

protest or oppose statutorily prohibited discrimination.” Garrison v. Am. Sugar Refin., Inc., 789

25 Oliver does not substantively address his Section 1983 retaliation claim in his moving brief.

(See Pitf. Sum. J. Br. (Dkt. No. 242) at 18-24)

60

F.Supp.3d 291, 309 (S.D.N.Y. 2025) (quoting Jarrell v. Hosp. for Special Care, 626 F. App’x

308, 311 (2d Cir. 2015) (summary order)). “[C]omplaints of unfair treatment or ‘generalized

grievances about an unpleasant or even harsh work environment, without more[,] . . . fail to rise

to the level of protected activity.’” Id. (quoting Green v. Mount Sinai Health Sys., Inc., 826 F.

App’x 124, 125 (2d Cir. 2020) (summary order)). “[P]rotected activity” includes “[formal] ...

as well [as] informal protests of discriminatory employment practices, including making

complaints to management, writing critical letters to customers, protesting against discrimination

by industry or by society in general, and expressing support of co-workers who have filed formal

charges.” Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990); see also Knox v. CRC

Memt. Co., LLC, 134 F.4th 39, 49 (2d Cir. 2025) (“‘[M]aking complaints to management’ about

workplace discrimination qualifies as protected activity”) (citation omitted)).

For purposes of a Section 1983, Title VII, or NYSHRL retaliation claim, an

“adverse employment action” is an act that “well might have dissuaded a reasonable worker from

making or supporting a charge of discrimination.” Burlington N. & Santa Fe R.R. Co. v. White,

548 U.S. 53, 68 (2006) (quotations omitted). The adverse action at issue “need not affect the

terms and conditions of a plaintiffs employment.” Fincher v. Depository Tr. & Clearing Corp.,

604 F.3d 712, 720 n.6 (2d Cir. 2010).

A causal connection between the protected activity and the adverse employment

action must be shown. Causation at the prima facie case stage “can be established either (1)

‘directly, through evidence of retaliatory animus’ toward the plaintiff, or (2) ‘indirectly,’ through

‘circumstantial evidence.’” Moll v. Telesector Res. Grp., Inc., 94 F.4th 218, 239 (2d Cir. 2024)

(quoting Hicks, 593 F.3d at 170). For purposes of establishing a prima facie case, it is sufficient

for plaintiff to “‘show[] that the protected activity was closely followed in time by the adverse

61

employment action.’” Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 131 (2d Cir.

2012) (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010)).

In determining whether the necessary temporal proximity is present, “courts in

this circuit have typically measured that gap as a matter of months, not years.” Id. at 131.

Indeed, “most courts in the Second Circuit have held that a lapse of time beyond two or three

months will break the causal inference,” James v. N. Y.C. Health + Hosps. Corp. Off. of Legal

Affs. Claims Div., 23 Civ. 1206 (PGG) (OTW), 2025 WL 959093, at *19 (S.D.N.Y. Mar. 31,

2025) (quoting De Figueroa v. New York, 403 F. Supp. 3d 133, 157 (E.D.N.Y. 2019) (citing

Walder v. White Plains Bd. of Educ., 738 F. Supp. 2d 483, 503-04 (S.D.N.Y. 2010) (collecting

cases)). However, the Second Circuit has stated on multiple occasions “‘that five months is not

too long to find the causal relationship.’” Rasmy v. Marriott Int’l, 952 F.3d 379, 391, 391 n.59

(2d Cir. 2020) (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010)).

Where a plaintiff has established a prima facie case of retaliation, “the burden

shifts to the employer to put forth evidence of a non-retaliatory rationale.” Cox v. Onondaga

Cnty, Sheriffs Dep’t, 760 F.3d 139, 145 (2d Cir. 2014) (citing Holt v. KMI-Continental, 95 F.3d

123, 130 (2d Cir. 1996)). Where the employer does so, “‘the presumption of retaliation

dissipates’ . . . and the plaintiff must prove ‘that the desire to retaliate was the but-for cause of

the challenged employment action.’”” Ya-Chen Chen v. City Univ. of New York, 805 F.3d 59,

70 (2d Cir. 2015) (quoting Jute, 420 F.3d at 173 and Univ. of Texas Sw. Med. Ctr. v. Nassar, 570

USS. 338, 352 (2013)).

“Ordinarily, plaintiffs evidence establishing a prima facie case and defendant’s

production of a nondiscriminatory reason for the employment action raise a question of fact to be

resolved by the factfinder after a trial.” Colon v. N.Y.C. Hous. Auth., No. 16-CV-4540 (VSB),

62

2021 WL 2159758, at *13 (S.D.N.Y. May 26, 2021) (quoting Carlton v. Mystic Transp., Inc.,

202 F.3d 129, 135 (2d Cir. 2000)); see also Dortz v. City of New York, 904 F. Supp. 127, 148

(S.D.N.Y. 1995) (“Where a Title VII defendant’s intent is at issue, summary judgment is

generally inappropriate.”); MacMillan v. Millennium Broadway Hotel, 873 F. Supp. 2d 546, 557

(S.D.N.Y. 2012) (“The issue of intent in a discrimination case presents a classic jury question.”).

The Second Circuit has, however, made “clear that temporal proximity ‘alone is

insufficient to defeat summary judgment at the pretext stage.’” Carr v. N.Y.C. Transit Auth., 76

F.4th 172, 182 (2d Cir. 2023) (affirming grant of summary judgment on Title VII, ADEA, and

Section 1981 retaliation claims) (quoting Kwan, 737 F.3d at 847; see also Fletcher v. ABM Bldg.

Value, 775 F. App’x 8, 14 (2d Cir. 2019) (summary order) (“Although the termination came

close in time to [plaintiffs] protected activity, ‘[t]emporal proximity alone is insufficient to

defeat summary judgment at the pretext stage.””) (quoting Kwan, 737 F.3d at 847). To show

pretext at the summary judgment stage, a plaintiff must supplement temporal proximity with

“other evidence.” Kwan, 737 F.3d at 847. “Absent other evidence, no factfinder could

reasonably determine that [plaintiff's] protected activities were the but-for cause of [the adverse

employment action].” Carr, 76 F.4th at 182. Evidence of pretext can include “weaknesses,

implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate,

nonretaliatory reasons for its action,” such that “a reasonable juror could conclude that the

explanations were a pretext for a prohibited reason.” Kwan, 737 F.3d at 846.

Consistent with this precedent, district courts in this Circuit considering a pretext

argument in connection with a retaliation claim routinely grant defendants summary judgment

where plaintiff has alleged nothing more than temporal proximity. See, ¢.g., Hahn v. Bank of

Am. Inc., No. 12 Civ. 4151(DF), 2014 WL 1285421, at *21 (S.D.N.Y. Mar. 31, 2014) (granting

63

summary judgment on retaliation claim where plaintiff did not “point to any weaknesses,

implausibilities, inconsistencies, or contradictions in [d]efendant’s proffered reasons for her

termination”); Carr v. N.Y.C. Transit Auth., No. 16-CV-9957 (VSB), 2022 WL 824367, at *11

(S.D.N.Y. Mar. 18, 2022), aff'd, 76 F.4th 172 (2d Cir. 2023) (granting defendant summary

judgment on retaliation claim where alleged inconsistencies were “not actually inconsistencies,

much less ones suggesting that [d]efendants ever considered race or gender or age in not

promoting [p]laintiff’); Hongmian Gong v. City Univ. of New York, No. 18 CIV. 3027 (LGS),

2020 WL 1467353, at *4 (S.D.N.Y. Mar. 25, 2020), aff'd sub nom. Gong v. City Univ. of New

York, 846 F. App’x 6 (2d Cir. 2021) (same); Kunzler v. McDonough, No. 19-CV-

07181(JS)(ARL), 2024 WL 197927, at *14 (E.D.N.Y. Jan. 18, 2024) (granting defendant

summary judgment on retaliation claim where plaintiff provided “no other circumstantial or

direct evidence” for pretext “other than temporal proximity”); Turner v. NYU Hosps. Ctr., 784 F.

Supp. 2d 266, 277-78 (S.D.N.Y. 2011), aff-d, 470 F. App’x 20 (2d Cir. 2012) (same; noting that

plaintiff “ha[d] not identified an inconsistency” suggesting pretext); Naemit v. Vill. of Spring

Valley, No. 20 CIV. 1882 (JCM), 2022 WL 1443675, at *12 (S.D.N.Y. May 6, 2022) (same;

“plaintiff has not produced any evidence suggesting that this stated reason for the role’s

discontinuance was false”’).

2. Retaliation Claims Under the NYCHRL

“A retaliation claim under the NYCHRL must be analyzed ‘separately and

independently’ from state and federal discrimination claims, as the NYCHRL’s provisions are

‘uniquely broad,’” Stanley v. Mount Sinai Health Sys., Inc., 21-CV-4619 (VEC), 2023 WL

8355393, at *13 (S.D.N.Y. Dec. 1, 2023) (quoting Mihalik, 715 F.3d at 110); see also McHenry

v. Fox News Network, LLC, 510 F.Supp.3d 51, 67 (S.D.N.Y. 2020) (“Retaliation claims under

the NYCHRL are subject to a broader standard than under the NYSHRL and Title VII.” (citing

64

Dodd v. City Univ. of N.Y., 489 F.Supp.3d 219, 268 (S.D.N.Y. 2020))). “Otherwise, a prima

facie case of retaliation faces the same requirements under the NYCHRL as under the

NYSHRL.” Malena v. Victoria’s Secret Direct, LLC, 886 F. Supp. 2d 349, 362 (S.D.N.Y. 2012)

(citing Rozenfeld v. Dep’t of Design & Constr. of City of New York, 875 F. Supp. 2d 189, 208

(E.D.N.Y. 2012)).

In contrast to federal anti-discrimination statutes, “the NYCHRL does not require

a plaintiff to show but-for causation.” Enechi v. City of New York, 20 Civ. 8911 (AT), 2023

WL 6293941, at *9 (S.D.N.Y. Sept. 27, 2023) “Instead, ‘summary judgment is appropriate only

if the plaintiff cannot show that retaliation played any part in the employer’s decision.” Id.

(citing Mihalik, 715 F.3d at 116 (2d Cir. 2013)).

B. Oliver’s Motion for Summary Judgment on His Retaliation Claims

In moving for summary judgment, Oliver contends that he has demonstrated as a

matter of law that the DOE and Estwick retaliated against him for filing the 2017 Discrimination

Lawsuit. (PItf. Sum. J. Br. (Dkt. No. 242) at 20)

1. Prima Facie Case

a. Protected Activity

Although the parties do not dispute that Oliver engaged in protected activity when

he filed the 2017 Discrimination Lawsuit (Def. Opp. Br. (Dkt. No. 251) at 15), they disagree as

to whether his protected activity includes the entirety of that litigation and the December 27,

2018 settlement. Oliver contends that his protected activity includes the entirety of that litigation

and the resulting settlement (PItf, Sum. J. Br. (Dkt. No. 242) at 20),”° while Defendants — in

26 Although Defendants assert that “Plaintiff alleges he engaged in four protected activities:

[plursuing an arbitration proceeding in 2014; making an [Office of Equal Opportunity] complaint

in 2014; making an EEOC complaint on June 1, 2018; and pursuing his 2017 lawsuit” (Def.

65

asserting that there is no temporal proximity between Oliver’s protected activity and the adverse

employment actions he cites — argue that Oliver’s only protected activity occurred in 2017 when

he filed his discrimination lawsuit. (Def. Opp. Br. (Dkt. No. 251) at 15-16)

In opposing Defendants’ motion to dismiss, Oliver argued “that litigating,

including settling, his previous legal action is protected activity for the purposes of a retaliation

claim.” Oliver v. City of New York, 19-CV-11219 (PGG) (JLC), 2022 WL 455851, at *25

(S.D.N.Y. Feb. 15, 2022), report and recommendation adopted in part by, Oliver I, 2023 WL

2160062. This Court found no clear error in Magistrate Judge Cott’s conclusion that the

“settlement of a previous claim can constitute a protected activity for the purposes of a retaliation

claim,” and that “Oliver therefore participated in protected activity when he settled the [2017

Discrimination Lawsuit] on December 27, 2018.” Oliver I, 2023 WL 2160062, at *22 (quoting

Oliver, 2022 WL 455851, at *26). Because the parties had a full and fair opportunity to litigate

the scope of protected activity at the motion to dismiss stage, and because this Court expressly

resolved the issue in Oliver I, Defendants’ argument that Oliver’s only protected activity

occurred in 2017 is barred by the law of the case doctrine.”’ See Pure Power Boot Camp, Inc. v.

Sum. J. Br. (Dkt. No. 238) at 41 (internal citations omitted)), Oliver discusses only one alleged

“protected activity” in his briefing: the 2017 Discrimination Lawsuit. (Pltf. Sum. J. Br. (Dkt.

No. 242) at 20; Pltf. Opp. Br. (Dkt. No. 245) at 31-32)

27 “The doctrine of the law of the case posits that if a court decides a rule of law, that

decision should continue to govern in subsequent stages of the same case.” Aramony

v. United Way of Am., 254 F.3d 403, 410 (2d Cir. 2001); accord Novick v. AXA

Network, LLC, 714 Fed. App’x 22, 25 (2d Cir. 2017). “Courts apply the law of the

case doctrine when their prior decisions in an ongoing case either expressly resolved

an issue or necessarily resolved it by implication.” Aramony, 254 F.3d at 410; accord

In re Terrestar Corp., 16 Civ. 1421, 2017 WL 1040448, at *4 (S.D.N.Y. Mar. 16,

2017). “Although not binding, the doctrine ‘counsels a court against revisiting its

prior rulings in subsequent stages of the same case absent cogent and compelling

reasons such as an intervening change of controlling law, the availability of new

66

Warrior Fitness Boot Camp, LLC, 759 F.Supp.2d 417, 424 n.5 (S.D.N.Y. 2010) (“A Report and

Recommendation prepared by a magistrate judge and adopted by a district judge, constitutes the

law of the case for all issues addressed in the report.”) (collecting cases). Accordingly, Oliver’s

protected activity continued through the December 27, 2018 settlement.

b. Knowledge of the Protected Activity

The parties do not dispute that the DOE and Estwick had knowledge of the 2017

Discrimination Lawsuit and the December 27, 2018 settlement. (See Pltf. R. 56.1 Resp. (Dkt.

No. 246) § 6)

Cc. Alleged Adverse Employment Actions

The FAC alleges that Oliver suffered the following “adverse employment actions”

as a result of the protected activity in which he engaged:

(1)... an unlawful and humiliating public arrest at [Tompkins]; (2) being the

subject of an unwarranted investigation; (3) being reassigned to the Rubber Room

to sit and idle there between March 22 and June 7, 2019; (4) due to his

reassignment to the Rubber Room, being unable to transfer to a different DOE

school or participate in per session activities, which resulted in a loss of additional

income; (5) having an email sent to [Tompkins] parents regarding reassignment to

the Rubber Room; (6) receiving a disciplinary letter, which prevented Mr. Oliver

from transferring to a different DOE school; (7) having his reassignment to the

evidence, or the need to correct a clear error or prevent manifest injustice.’”

Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 736 F.3d 198, 208 (2d Cir. 2013)

(quoting Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008)); accord Reches v.

Morgan Stanley & Co. LLC, 736 Fed. App’x 306, 307 (2d Cir. 2018) (summary

order). “The doctrine is properly applied only when the parties had a full and fair

opportunity to litigate the initial determination.” Hamlen v. Gateway Energy Servs.

Corp., No. 16 Civ. 3526, 2018 WL 1568761, at *1 (S.D.N.Y. Mar. 29, 2018) (citing

Westerbeke Corp, v. Daihatsu Motor Co., 304 F.3d 200, 219 (2d Cir. 2002)). The

law of the case doctrine is “driven by considerations of fairness to the parties, judicial

economy, and the societal interest in finality.” United States v. Carr, 557 F.3d 93,

102 (2d Cir. 2009); accord Tomasino v. Estee Lauder Companies, Inc., No. 13 Civ.

4692, 2015 WL 1470177, at *1 (E.D.N.Y. Mar. 31, 2015).

Esposito v. Gary, 18 Civ. 11245 (PGG) (OTW), 2025 WL 1786243, at *11 (S.D.N.Y. June 26,

2025) (quoting Chan Ah Wah v. HSBC N. Am. Holdings Inc., 15 Civ. 8974 (LGS), 2019 WL

859042, at *4 (S.D.N.Y. Feb. 22, 2019)).

67

Rubber Room permanently listed on his DOE employment records; and (8)

subjecting him to irreparable reputational damage.

(FAC (Dkt. No. 195) 202, 217, 250, 271)

In moving for summary judgment on his retaliation claims, Oliver cites a

somewhat different assortment of alleged adverse employment actions:

Estwick (1) encouraged multiple DOE investigations of Mr. Oliver, despite not

conducting any investigation (or interviews) himself regarding G.C’s allegations,

(2) removed Mr. Oliver from his classroom and directed the NYPD to arrest Mr.

Oliver in the main hallway, (3) emailed the entire [Tompkins] community about

Mr. Oliver’s reassignment, despite this being highly unprofessional, (4) sent a list

of unsubstantiated allegations (dating as far back as 2011) to [Estwick’s]

supervisor, Defendant Mustillo, and (5) ultimately encouraged Mustillo to file a

disciplinary letter in Mr. Oliver’s file. Finally, despite multiple requests from Mr.

Oliver per the UFT Collective Bargaining Agreement, Estwick refused to remove

disciplinary letters from Mr. Oliver’s file and caused counseling letters to be

placed in his file contrary to the [Collective Bargaining Agreement].

(Pltf. Sum. J. Br. (Dkt. No. 242) at 24) Oliver also complains about “Estwick’s inaction” prior

to Oliver’s arrest, including his (1) “refus[al] to meet with [G.C.’s mother] after she learned

about [G.C.’s] complaint”; (2) “refus[al] to reassure [G.C.’s mother] that the school was taking

action to investigate the complaint”; (3) failure to “inform the police officers about the actions

the school had and had not taken to investigate the incident”; and (4) failure to “provid[e] any

contextual details.” (Id. at 21-22 (emphasis in original))

i. Adverse Actions Not Pled in FAC

In moving for summary judgment, Oliver cites a number of alleged adverse

employment actions not pled in the FAC, including Estwick’s aforementioned “inaction” prior to

Oliver’s arrest; Estwick’s transmission of “unsubstantiated allegations” to Deputy

Superintendent Mustillo; Estwick’s encouraging Mustillo to issue a disciplinary letter to Oliver;

and Estwick’s refusal to remove disciplinary and counseling letters from Oliver’s DOE personnel

file. (PItf. Sum. J. Br. (Dkt. No. 242) at 21-22, 24)

68

As to Estwick’s “inaction,” the FAC pleads that Estwick played an active role in

connection with the investigation and arrest of Oliver, including by “immediately reporting the

Alleged Incident to G.C.’s parents and/or the NYPD, encouraging G.C. and her parents to report

the Alleged Incident to the NYPD, and/or by encouraging the NYPD to arrest Mr. Oliver.”

(FAC (Dkt. No. 195) 78) The FAC makes no mention of Estwick’s alleged transmission of

“unsubstantiated allegations” to Mustillo, of his alleged encouragement to Mustillo to issue a

disciplinary letter to Oliver, or of Estwick’s alleged refusal to remove disciplinary and

counseling letters from Oliver’s personnel file.

It is “well settled that a Court should not on summary judgment consider factual

allegations and legal theories not raised in the complaint.’” Lopez v. Gap, Inc., 883 F.Supp.2d

400, 413 (S.D.N.Y. 2012) (quoting Brown v. Magistro, No. 10-CV-3705 (CS)(PED), 2011 WL

6399514, at *3 (S.D.N.Y. Dec. 20, 2011); see also Cardwell v. Davis Polk & Wardwell LLP,

1:19-cv-10256-GHW, 2023 WL 2049800, at *33 (S.D.N.Y. Feb. 16, 2023) (declining to consider

an alleged adverse employment action in a retaliation case because the plaintiff “failed to raise it

in his complaint”) (citing, inter alia, Scott v. City of New York Dep’t of Corr., 641 F. Supp. 2d

211, 229 (S.D.N.Y. 2009), aff'd sub nom. 445 F. App’x 389 (2d Cir. 2011)); Lee v. HealthFirst,

Inc., No. 04 Civ. 8787 (THK), 2006 WL 177175, at *5 (S.D.N.Y. Jan. 25, 2006) (“It must be

clear from a discrimination complaint ‘what adverse employment action or actions serve as the

basis for [a plaintiff's] .. . discrimination claim [thereby] giv[ing] fair notice in her complaint of

the grounds upon which her claim that those actions were discriminatory rests.””) (quoting

Galvez v. New York Mortg. Co., LLC, No. 05 Civ. 2365 (DLC), 2005 WL 2124112, at *2

(S.D.N.Y. Sept. 1, 2005)); Wolde-Meskel v. Argus Community, Inc., No. 99 Civ. 10112 (LMM),

2001 WL 883648, at *5 n.3 (S.D.N.Y. Aug. 7, 2001) (“Plaintiff alleges for the first time in his

69

[opposition to plaintiffs motion for summary judgment] that [defendant’s] inaction in repairing

or upgrading his computer in a timely fashion was an additional instance of discriminatory

treatment. Because no such allegation was contained in plaintiffs complaint, the Court need not

consider this alleged adverse employment action.”) (internal citation omitted). Because Oliver

did not allege in the FAC that the above conduct constitutes adverse employment actions, he may

not do so now.

ii. Adverse Employment Actions Pled in the FAC

“For [Title VII] retaliation claims, the definition of adverse employment action is

broader than for employment discrimination claims.” Accely v. Con. Ed. Co. of N.Y., Inc., 19

Civ. 5984 (AT), 2022 WL 973415, at *12 (S.D.N.Y. Mar. 31, 2022) (quoting Hicks, 593 F.3d at

165). “The ‘employer’s action[ ] must be harmful to the point that [it] could well dissuade a

reasonable worker from making or supporting a charge of discrimination.” Id.

(quoting Burlington N. & Santa Fe Ry. Co., 548 U.S. at 57)). “Further, for retaliation claims,

adverse employment actions must be ‘considered both separately and in the aggregate, as even

minor acts of retaliation can be sufficiently substantial in gross as to be actionable.’” Id.

(quoting Hicks, 593 F.3d at 165 (quotation marks omitted). “The standard is the same under

[the] NYSHRL.” Id. (citing Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716

F.3d 10, 14 (2d Cir. 2013).

Defendants concede in their opposition brief that Oliver’s administrative

reassignment constitutes an adverse employment action for purposes of his retaliation claims.

(See Def. Opp. Br. (Dkt. No. 251) at 16 (“Plaintiff’s attempt to show that adverse actions were

taken against him after his arrest (other than his administrative reassignment) fails.”)) Where —

as here — a work reassignment involves significantly diminished responsibilities, the employee

has suffered an adverse employment action for purposes of a retaliation claim. See Dinkins v.

70

Mayorkas, 2024 WL 1806174, at *10 (S.D.N.Y. Apr. 25, 2024) (“The reassignment of Plaintiff's

work constitutes an adverse employment action for purposes of the retaliation claim.”); New

York ex rel. Khurana v. Spherion Corp., 511 F.Supp.3d 455, 478 (S.D.N.Y. 2021) (“To be sure,

reassignment to a position with ‘significantly diminished responsibilities’ can constitute adverse

employment action for purposes of a retaliation claim”) (citation omitted).

As to Estwick, however, Plaintiff has not proffered evidence demonstrating that

he played any role in the decision to reassign Oliver. To the contrary, the evidence shows that

after Oliver’s arrest the DOE Reassigned Staff Tracking Team sent an email to Estwick

informing him that Oliver had been “administratively reassigned pending an investigation into

allegations of employee misconduct.” (Arlo Decl., Ex. T (Dkt. No. 236-20) Attached to the

email is a letter to Oliver informing him that he has been reassigned. (Id.) The email directs

Estwick to “give Mr. Oliver the attached letter and have him report to this office on Monday,

March 25, 2019.” (Id.) In sum, Oliver has not proffered evidence demonstrating that Estwick

played any role in the decision to reassign Oliver.

As to the alleged “humiliating public arrest” (FAC (Dkt. No. 195) 4 202, 217,

250, 271), Oliver argues that Estwick “direct[ed] the NYPD to arrest Mr. Oliver in the main

entryway of the school in front of teachers, parents, staff, and students.” (Pltf. Sum. J. Br. (Dkt.

No. 242) at 22) Defendants concede that “Estwick suggested a discrete location where police

could effectuate their arrest of plaintiff.” (Def. Opp. Br. (Dkt. No. 251) at 17) Indeed, Officer

McLeod testified that the Arresting Officers “met [Oliver] in the front of the building .. . by the

guidance of the principal.” (Foti Decl., Ex. 24 (McLeod Dep.) (Dkt. No. 244-24) at 47)

Defendants argue that Estwick’s suggestion that the police arrest Oliver at the main entrance of

the School does not amount to an adverse employment action. (Def. Opp. Br. (Dkt. No. 251) at

71

17) A reasonable jury could find, however, that Estwick’s suggestion that the police arrest

Oliver at the front entrance of the School — in front of teachers, parents, staff, and students —

would “dissuade a reasonable worker from making or supporting a charge of discrimination.”

See Burlington N. & Santa Fe Ry. Co., 548 U.S. at 57.

Oliver also argues that he suffered an adverse employment action when he was

subjected to an “unwarranted investigation.” (FAC (Dkt. No. 195) 4 202, 217, 250, 271; see also

Pitf. Sum. J. Br. (Dkt. No. 242) at 24) The investigations conducted by the Office of Equal

Opportunity and Deputy Superintendent Mustillo did not result in any disciplinary sanction, and

courts in this Circuit “have disagreed as to whether an investigation into disciplinary charges that

does not result in any discipline may be sufficient [to] constitute an adverse action in the

retaliation context.” Olaechea v. City of New York, No. 17-CV-4797 (RA), 2019 WL 4805846,

at *9 (S.D.N.Y. Sept. 30, 2019) (citing Burgos v. City of New York, 18-CV-1150 JJPO), 2019

WL 1299461, at *8 (S.D.N.Y. Mar. 21, 2019)). “Some courts have found that the

commencement of an investigation, even without attendant negative consequences, is sufficient

to establish an adverse employment action.” Chidume v. Greenburgh-North Castle Union Free

Sch. Dist., 18-cv-01790 (PMH), 2020 WL 2131771, at *7 (S.D.N.Y. May 4, 2020) (citing Weber

v. City of New York, 973 F. Supp. 2d 227, 269-70 (E.D.N.Y. 2013) (collecting cases). Here, a

reasonable juror could conclude that these investigations and Oliver’s suspension from teaching

over a two-month period — actions that continued after the NYPD had voided Oliver’s arrest

(Pltf. R. 56.1 Stmt. (Dkt. No. 243) § 68) — would dissuade a reasonable employee from making

complaints about discrimination.

After Oliver was released from the Ninth Precinct and returned to Tompkins,

Estwick sent an email to parents stating, “Teacher Akeem Oliver has been reassigned away from

72

the school pending the results of an investigation.” (Foti Decl., Ex. 28 (Reassignment Email)

(Dkt. No. 244-28); see Def. R. 56.1 Resp. (Dkt. No. 252) § 70) Courts in this Circuit have

acknowledged that conduct resulting in reputational harm may constitute an adverse employment

action for purposes of a retaliation claim. See Frontline Comms. Intern., Inc. v. Sprint Comms.

Co., 374 F.Supp.2d 368, 371 (S.D.N.Y. 2005) (“[a]llegations of fraud” may constitute an adverse

employment action because they “may diminish future employment prospects by damaging

one’s reputation”) (citing Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997)

(where former employer “sullies the plaintiff's reputation” plaintiff may have suffered an

adverse employment action for purposes of a retaliation claim))

In a June 17, 2019 letter, Defendant Mustillo informed Oliver that he had engaged

in “professional misconduct.” The letter also states that “‘this incident [involving inappropriate

touching of G.C.] may lead to further disciplinary action, including charges that can lead to your

termination.’” (PItf. R. 56.1 Stmt. (Dkt. No. 243) § 85 (quoting Foti Decl., Ex. 32 (Disciplinary

Ltr.) (Dkt. No. 244-32) at 1)) “[A] disciplinary warning letter may constitute an adverse action

in the retaliation context.” Burgos, 2019 WL 1299461, at *8 (citing Davis v. Goodwill Indus. of

Greater New York & New Jersey, Inc., No. 15 Civ. 7710, 2017 WL 1194686, at *9 (S.D.N.Y.

Mar. 30, 2017) (quoting Thomson v. Odyssey House, No. 14 Civ. 3857, 2015 WL 5561209, at

*21 (E.D.N.Y. Sept. 21, 2015)); Vega v. Hempstead Union Free School Dist., 801 F.3d 72, 92

(2d Cir. 2015) (“[A] poor performance evaluation could very well deter a reasonable worker

from complaining.”).

The Court concludes that Oliver has proffered evidence from which a reasonable

jury could find that he suffered adverse employment actions for purposes of his retaliation

claims.

73

d. Causal Connection

The parties dispute whether Oliver has proffered evidence sufficient to establish

the fourth element of his prima facie case — “a causal connection between the protected activity

and the adverse employment action.” Kwan, 737 F.3d at 844. Defendants contend that the less

than three-month gap between the December 27, 2018 settlement of the 2017 Discrimination

Lawsuit and Oliver’s March 22, 2019 arrest is too long to establish temporal proximity. (Def.

Opp. Br. (Dkt. No. 251) at 20-21)

As discussed above, for purposes of makin

This text is long and has been trimmed here. Open the source document for the complete record.