# Oliver

> District Court, S.D. New York · August 6, 2026

URL: https://www.frixlaw.com/law-library/cases/11439455

## Case

- **Full name:** Akeem Oliver v. City of New York, Joseph Gonzalez, Kenneth J. Taylor, Kevin McLeod, Tong Jiang, Board of Education of the City School District of the City of New York, Carry Chan, Kristine Mustillo, Sonhando Estwick
- **Court:** District Court, S.D. New York
- **Decided:** August 6, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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)).
“ (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),

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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)).

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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)

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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

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[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.

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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

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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

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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.

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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 making out a prima facie case of retaliation,
“TcJausation can be sufficiently established through temporal proximity.” Craven, 2023 WL
3097434, at *5. “‘There is no firm outer limit to the temporal proximity required.’” As
discussed above, although “‘most courts in the Second Circuit have held that a lapse of time
beyond two or three months will break the causal inference,’” James, 2025 WL 959093, at *19
(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)), the
Second Circuit has noted in at least two decisions “‘that five months is not too long to find the
causal relationship.’” Rasmy, 952 F.3d at 391, 391 n.59 (quoting Gorzynski, 596 F.3d at 110).
Here, the Court concludes that the less-than-three-month gap between the
December 27, 2018 settlement and Oliver’s March 22, 2019 arrest is sufficient to establish a
causal connection for purposes of making out a prima facie case. See Babcock v. N.Y.S. Off. of
Mental Health, No. 04 Civ. 2261, 2009 WL 1598796 (PGG), at *23 (S.D.N.Y. June 8, 2009)
(“This Court declines to rule as a matter of law that the three-month gap between the [protected
activity] and the [adverse employment action] is insufficient to establish ‘that the protected
activity was closely followed in time by the adverse action.””) (quoting Feingold v. New York,
366 F.3d 138, 157 (2d Cir. 2004)).

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2. Alleged Legitimate Non-Retaliatory Reason
Because the Court concludes that Oliver has established a prima facie case of
retaliation, the burden shifts to Defendants to articulate legitimate, non-retaliatory reasons for the
alleged adverse employment actions. With respect to the decisions to reassign and investigate
Oliver, Defendants assert that — after learning of G.C.’s allegations and Oliver’s arrest — the DOE
needed to “determine the facts, and ensure the safety of [Tompkins] students.” (Def. Opp. Br.
(Dkt. No. 251) at 18)) With respect to Estwick’s March 22, 2019 email to School parents
reporting Oliver’s reassignment pending an investigation, Defendants argue that — because
Oliver’s arrest was “widely known” — it was “not unreasonable to simply inform [School]
parents by email that [Oliver] had been reassigned pending an investigation of the incident.”
(Id.)
Given G.C.’s allegations regarding Oliver and the highly public nature of his
arrest, the Court finds that Defendants’ interest in protecting students, in investigating G.C.’s
allegations, and in reassuring parents that Tompkins provides a safe environment for its students
constitute legitimate, non-retaliatory reasons for Defendants’ actions. See Jones v. Bay Shore
Union Free Sch. Dist., 666 F. App’x 92, 94-95 (2d Cir. 2016) (summary order) (concern for
student safety was a legitimate, non-retaliatory reason for barring defendant from school
property following allegations of sexual misconduct).
3. — Pretext
Where, as here, a “defendant articulates a non-retaliatory rationale for its
employment decision, the burden shifts back to the plaintiff to show that the defendant’s
proffered explanation is a pretext for unlawful retaliation.”” White v. Pacifica Found., 973
F.Supp.2d 363, 383-84 (S.D.N.Y. 2013) (quoting Mayers v. Emigrant Bancorp, Inc., 796
F.Supp.2d 434, 447 (S.D.N.Y. 2011)). “‘At this stage of the inquiry, merely disproving the

75

defendant’s legitimate explanation is insufficient; the plaintiff must produce competent evidence
that “the employer’s decision was motivated, at least in part, by an intent to retaliate against
him.” Id, (quoting Mayers, 796 F. Supp. 2d at 446 (quoting El Sayed v. Hilton Hotels
Corp., 627 F.3d 931, 933 (2d Cir. 2010)).
Defendants argue that Oliver has not established pretext because he “relies
exclusively” on “the temporal proximity between his protected activity and the alleged adverse
actions.” (Def. Opp. Br. (Dkt. No. 251) at 19 (citing Russell v. N.Y. Univ., 739 F. App’x 28, 34
(2d Cir. 2018) (“[I]t is well-settled in our Circuit that ‘temporal proximity alone is not enough to
establish pretext.’” (quoting Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 254 (2d Cir.
2014)))))
But Oliver relies on more than temporal proximity in arguing that Defendants’
stated reasons for his reassignment are pretextual. For example, Oliver points to the following
text message exchange between Estwick and Mustillo on June 7, 2019 — the day after Oliver was
notified that the DOE Office of Personnel Investigation had authorized his return to his teaching
position:
Estwick: Please call me when you have a moment
Mustillo: Akeem is tenured?
Estwick: Yes
Mustillo: File number please
Estwick: 841467
Mustillo: Is there a tsms email in addition to his doe
Estwick: His TSMS email is aoliver@tsmsonline.org
Estwick: Why do you ask?

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Mustillo: Because I need 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
Estwick: His personal email is AOliverO7@gmail.com
Mustillo: I’m sending it to his doe and copying to tsms...T’II stick to
work emails
Estwick: Yup
(Foti Decl., Ex. J (Dkt. No. 247-14) at 31-32)
According to Oliver, these text messages “clearly demonstrate that [Estwick and
Mustillo] wanted to extend Mr. Oliver’s reassignment, even though he had been cleared many
times over of wrongdoing.” (Pltf. Reply Br. (Dkt. No. 248) at 12)
On June 12, 2019 — five days later — Estwick emailed Mustillo the “Akeem
Incidents Timeline,” which “contain[ed] 15 other incidents allegedly involving Mr. Oliver[,]...
only one of [which] pertained to Plaintiffs conduct towards G.C.” (Pitf. R. 56.1 Stmt. (Dkt. No.
243) 83 (citing Foti Decl., Ex. 33 (Akeem Incidents Timeline email) (Dkt. No. 244-33)) And
on June 17, 2019, Defendant Mustillo issued a disciplinary letter to Oliver stating that he had
engaged in “professional misconduct” in connection with G.C., and informing him that “‘this
incident may lead to further disciplinary action, including charges that can lead to your
termination.’” (Id. J 85 (quoting Foti Decl., Ex. 32 (Disciplinary Ltr.) (Dkt. No. 244-32) at 1))
While these text messages could be read to indicate that Estwick and Mustillo
wanted to pursue further action against Oliver, Oliver is not entitled to judgment as a matter of
law on his retaliation claims. Neither the NYPD’s voiding of Oliver’s arrest nor the Office of
Equal Opportunity’s closure of its investigation establishes that Oliver was “cleared . . . of
wrongdoing.” The NYPD’s decision not to pursue criminal charges against Oliver does not
demonstrate that his alleged conduct vis a vis G.C. was appropriate for the classroom, And

77

while the Office of Equal Opportunity concluded that G.C.’s “allegations do not articulate sexual
harassment under Chancellor’s Regulation A-830,””* the Office of Equal Opportunity referred
“the inappropriate nature of the physical contact and comments to [Superintendent Chan] . . . to
handle as deemed fit and appropriate.” (Arko Decl., Ex. X (Hutchinson email) (Dkt. No. 253-
24))
Because there are material issues of fact as to whether Estwick and Mustillo were
motivated by retaliatory animus, Oliver’s motion for summary judgment on his retaliation claims
under Title VII, the NYSHRL, and the NYCHRL will be denied.
C. Defendants’ Motion for Summary Judgment on Oliver’s Retaliation Claims
1, Title VII, NYVHSRL, and NYCHRL Retaliation Claims
In moving for summary judgment on Oliver’s Title VII, NYSHRL, and NYCHRL
retaliation claims, Defendants rely on the same arguments they made in opposing Oliver’s

summary judgment motion. (See Def. Sum. J. Br. (Dkt. No. 238) at 40-48) For example,
Defendants argue that Oliver has not established a prima facie case of retaliation because he has
not shown a sufficient causal connection between his protected activity — Oliver’s 2017

28 Chancellor’s Regulation A-830 prohibits the sexual harassment of students by DOE
employees:
Sexual conduct between an adult and a student can never be considered welcome
or appropriate. Sexual harassment of a student by an employee consists of sexual
advances, requests for sexual favors and other verbal and physical conduct of a
sexual nature. ...
Sexual harassment may take different forms, including explicit sexual
propositions or threats, sexual innuendos, sexually suggestive comments, sexually
oriented jokes, obscene gestures, displays of pornographic or obscene visual or
printed material, and physical contact, such as touching, patting, pinching or
brushing against another’s body.
(Foti Decl., Ex. Q (Chancellor Regulations) (Dkt. No. 247-21) at 17 (emphasis in original))

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Discrimination Lawsuit — and the “only arguably qualifying adverse action” — Oliver’s March
2019 administrative reassignment. (Def. Sum. J. Br. (Dkt. No. 238) at 42-47) Defendants
further argue that “there are legitimate, non-retaliatory reasons for plaintiffs administrative
reassignment,” and that there is “no evidence that this legitimate reason was a pretext to mask
retaliation.” (Id. at 48)
For the reasons discussed above in connection with Oliver’s motion for summary
judgment, there are material issues of fact as to whether the following constitute adverse
employment actions for purposes of Oliver’s retaliation claims: (1) Estwick’s suggestion to the
Arresting Officers that they arrest Oliver at the front entrance of the School; (2) Oliver’s
administrative reassignment; (3) Estwick’s email to School parents announcing Oliver’s
reassignment and the investigation into his conduct; (4) Defendants’ multiple investigations of
Oliver’s conduct; and (5) Mustillo’s issuance of a disciplinary letter to Oliver stating that he had
engaged in “professional misconduct” and might face termination. And for reasons also stated
above, material issues of fact exist as to whether Defendants Estwick and Mustillo were
motivated by retaliatory animus.
Accordingly, Defendants’ motion for summary judgment on Oliver’s Title VI,
NYSHRL, and NYCHRL retaliation claims will be denied.
2. Section 1983 Claim Against Estwick
Defendants contend that they are entitled to summary judgment on Oliver’s
Section 1983 retaliation claim against Estwick, because Estwick is entitled to qualified
immunity. (Def. Sum. J. Br. (Dkt. No. 238) at 48-49)
a. Individual Liability under Section 1983
“IT]o 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

79

plaintiff to be 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.
A Section 1983 plaintiff can establish a defendant’s “personal involvement” in a
constitutional deprivation by showing 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, 795 F.3d at 314 (quoting Back, 365 F.3d at 127). Where a supervisor’s personal
involvement is shown, a Section 1983 “‘plaintiff must also establish that the supervisor’s actions

were the proximate cause of the plaintiffs constitutional deprivation’ and . . . ‘that [the]
supervisor’s behavior constituted intentional discrimination on the basis of a protected
characteristic.’” Lewis, 246 F.Supp.3d at 992 (quoting Raspardo, 770 F.3d at 116); see also
Littlejohn, 795 F.3d at 314.
There is no dispute here as to the “acting under color of law” element or with
respect to Estwick’s personal involvement in certain of the alleged constitutional deprivations,
including the suggestion to arrest Oliver at the front entrance of the School, and the email to
parents concerning Oliver’s reassignment and the investigation into his conduct.
b. Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan,

80

555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “A right is
clearly established if its contours are ‘sufficiently clear that a reasonable official would
understand that what he is doing violates that right.’” Spang v. Katonah-Lewisboro Union Free
School Dist., 626 F.Supp.2d 389, 399 (S.D.N.Y. 2009) (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)) (citing Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (“A right is
clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the
Second Circuit has recognized the right, and (3) ‘a reasonable defendant [would] have
understood from the existing law that [his] conduct was unlawful.’”) (quoting Young v. County
of Fulton, 160 F.3d 899, 903 (2d Cir. 1998))).
Defendants contend that,
should the Court find Estwick could potentially be liable for reassigning plaintiff,
which defendants dispute, Estwick acted objectively reasonably given G.C.’s
complaint and the ensuing arrest of plaintiff. To the extent the Court finds
Estwick potentially liable based on disparate treatment of White Teacher No. 1,
Estwick reasonably believed, even if mistaken, that the nature of G.C.’s
complaint, coupled with plaintiff's arrest, rendered plaintiff and White Teacher
No. 1 not similarly situated.
(Def. Sum. J. Br. (Dkt. No. 238) at 49)
As discussed above, there is no evidence that Estwick made the decision to
reassign Oliver. (See Pltf. R. 56.1 Stmt. (Dkt. No. 243) § 73) Moreover, Oliver’s disparate
treatment arguments regarding White Teacher No. 1 and White Teacher No. 2 are not persuasive,
because these alleged comparators were not similarly situated to Oliver. Defendants do not
address, however, whether Estwick acted reasonably in (1) suggesting to officers that they arrest
Oliver at the front entrance of the School, or (2) sending an email to School parents on March 22,
2019 announcing Oliver’s reassignment and the fact that he was under investigation.
Accordingly, Defendants have not shown as a matter of law that Estwick is entitled to qualified
immunity with respect to Oliver’s Section 1983 retaliation claim. See Mosby v. City of New

gj

York, 20 Civ. 1485 (AT), 2022 WL 4095931 n.5 (S.D.N.Y. Sept. 7, 2022) (“Defendants, having
raised qualified immunity as to other claims but not as to this claim[,] have waived a qualified
immunity argument for this claim.”) (citing McCardle v. Haddad, 131 F.3d 43, 51-52 (2d Cir.
1997) (“The qualified immunity defense can be waived .. . by failure to raise it with sufficient
particularity”).
Accordingly, Defendants’ motion for summary judgment on Oliver’s Section
1983 retaliation claim will be denied.
VII. MONELL LIABILITY
The FAC alleges that the DOE is subject to Section 1983 liability under the
Monell doctrine based on the “DOE’s failure to supervise and discipline Defendant Estwick.”
(FAC (Dkt. No. 195) § 225) Defendants have moved for summary judgment on this claim.
(Def. Sum. J. Br. (Dkt. No. 238) at 56-62)
A. Applicable Law
Monell v. New York City Department of Social Services, 436 U.S. 658
(1978) “provides that a municipality or municipal agency may be liable under § 1983 when its
policy or custom causes a constitutional violation.” Chislett, 157 F.4th at 184. “The DOE isa
municipal organization and is only subject to liability under § 1983 if the Monell requirements
are satisfied.” Cohen v. Walcott, 13-cv-9181 (JGK), 2017 WL 2729091, at *4.n.1 (S.D.N.Y.
June 23, 2017) (citing Fierro v. N.Y.C. Dep’t of Educ., 994 F. Supp. 2d 581, 588 (S.D.N.Y.
2014).
“*The elements of a Monell claim are (1) a municipal policy or custom that (2)
causes the plaintiff to be subjected to (3) the deprivation of a constitutional right.’” Chislett, 157
F.4th at 184 (quoting Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 97 (2d Cir. 2020). “A
municipality cannot be held liable on the theory of respondeat superior; the plaintiff must

82

establish that the municipality’s policy or custom itself was a ‘moving force of the constitutional
violation.’” Id. (citing Monell, 436 U.S. at 691) (emphasis in Chislett).
“The Supreme Court has explained that ‘[a] municipality’s culpability for a
deprivation of rights is at its most tenuous where a claim turns on a failure to train.”” Breton v.
City of New York, 404 F.Supp.3d 799, 818 (S.D.N.Y. 2019) (quoting Connick v. Thompson,
563 U.S. 51, 61 (2011). A failure to train claim under Monell is actionable “‘only where a
[p]laintiff can demonstrate that a municipality’s failure to train amounts to deliberate
indifference to the rights of those with whom municipal employees will come into contact.” Id.
(quoting Peterec v. Hilliard, No. 12cv3944, 2013 WL 5178328, at *11 (S.D.N.Y. Sept. 16,
2013) (internal quotation marks omitted)). “[A] jury may infer deliberate indifference ‘where the
need for more or better supervision to protect against constitutional violations was obvious, but
the policymaker failed to make meaningful efforts to address the risk of harm to plaintiffs.”
Cowan v. City of Mount Vernon, 95 F.Supp.3d 624, 638 (S.D.N.Y. 2015) (quoting Cash v.
County of Erie, 654 F.3d 324, 334 (2d Cir. 2011) (citations, alterations, and internal quotation
marks omitted)).
To establish that a “failure to train or supervise constitutes deliberate
indifference,” a plaintiff must show
“(1)] that [the] policymaker knows to a moral certainty that her employees will
confront a given situation . . . [;] [(2)] that the situation either presents the
employee with a difficult choice of the sort that training or supervision will make
less difficult or that there is a history of employees mishandling the situation ...
[;] [and] [(3)] that the wrong choice by the city employee will frequently cause the
deprivation of a citizen’s constitutional rights.”
Cowan, 95 F.Supp.3d at 638 (quoting Jenkins v. City of New York, 478 F.3d 76, 94 (2d Cir.
2007)). “Moreover, ‘at the summary judgment stage, plaintiffs must identify a specific
deficiency in the city’s training program and establish that the deficiency is closely related to the

83

ultimate injury, such that it actually caused the constitutional deprivation.’” Id. (quoting
Jenkins, 478 F.3d at 94 (internal quotation marks omitted)).
B. Analysis
Defendants argue that Oliver’s Monell claim “fails as a matter of law as plaintiff
cannot establish deliberate indifference on the part of the DOE.” (Def. Sum. J. Br. (Dkt. No.
238) at 56) According to Defendants, “the record is utterly devoid of any evidence concerning
municipal policies, patterns, practices, or customs that caused any alleged constitutional
violation.” (Id. at 57) In the alternative, Defendants argue that Oliver’s Monell claim is “barred
by the 2018 General Release.” (Id. at 61)
In response, Oliver argues that the DOE is subject to Monell liability because it
“failed to oversee those responsible for correctly implementing the reassignment procedures
when it failed to prevent Mr. Oliver from being reassigned beyond the 60-day limit.” (Pltf. Opp.
Br. (Dkt. No. 245) at 21 n.5)
As discussed above, Oliver was reassigned from March 22 to June 5, 2019 (see
Def. R. 56.1 Stmt. (Dkt. No. 237) §§ 110), and the reassignment was rescinded on June 6, 2019.
(Pltf. R. 56.1 Stmt. (Dkt. No. 243) § 78) According to the Collective Bargaining Agreement
between the DOE and the United Federation of Teachers, the duration of any investigation or
reassignment “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) Moreover, the 60-day period set forth in the Collective Bargaining Agreement
does not apply where, as here, the Special Commissioner of Investigation for the New York City
School District is investigating an allegation of sexual misconduct. (Id.)
As discussed above, after accounting for school recess periods, holidays, and days
in which sexual misconduct allegations were under investigation by SCI, the record shows that

84

Oliver’s reassignment did not exceed the 60-day limit imposed by the Collective Bargaining
Agreement. Accordingly, the duration of Oliver’s reassignment does not provide a basis for
Monell liability.
Even if DOE had violated the Collective Bargaining Agreement’s 60-day limit for
reassignments, Oliver has not offered evidence of an agency-wide policy or custom of doing so.
Nor has he offered evidence that the DOE’s failure to train Estwick led to any violation of the
Collective Bargaining Agreement’s 60-day limit provision.
Oliver also argues that the “DOE’s policy and practices directly caused Mr.
Oliver to be subjected to discriminatory and retaliatory acts by its employees,” and that the
“DOE’s policy and practices ... were inadequate to prevent a constitutional violation.” (Pltf.
Opp. Br. (Dkt. No. 245) at 21 n.5) Oliver does not “‘identify a specific deficiency in the city’s
training program,’” however, nor does he offer evidence “‘establish[ing] that the deficiency is
closely related to the ultimate injury, such that it actually caused the constitutional deprivation.”
Cowan, 95 F.Supp.3d at 638 (quoting Tenkins, 478 F.3d at 94). Oliver’s conclusory allegations
that the DOE had policies and practices that caused its employees to engage in discrimination
and retaliation are insufficient to survive summary judgment. Watts v. N.Y.C. Police Dep’t, 100
F. Supp. 3d 314, 330 (S.D.N.Y. 2015) (“A plaintiffs ‘[c]onclusory allegations of municipal
liability will not defeat a motion for summary judgment on a Monell claim.’” (quoting Jouthe v.
City of New York, 2009 WL 701110, at *8 (E.D.N.Y. Mar. 10, 2009)) (alteration in Watts)); see
also Lugo v. City of New York, 2025 WL 1952029, 19-CV-6086 (VSB) (S.D.N.Y. July 16,
2025) (same). Accordingly, Defendants are entitled to summary judgment on Oliver’s Monell
claim (Count Twelve).

85

VII. OLIVER’S CLAIMS AGAINST CHAN AND MUSTILLO
The FAC asserts three claims against Superintendent Chan and Deputy
Superintendent Mustillo: aiding and abetting retaliation under NYSHRL § 296 and NYCHRL
§ 8-107; aiding and abetting retaliation in violation of Section 1983; and “supervisory
liability.” (FAC (Dkt. No. 195) § 220-23, 230-34, 276-79)
The parties have cross-moved for summary judgment on Oliver’s aiding and
abetting retaliation claims under the NYSHRL and the NYCHRL. (Def. Sum. J. Br. (Dkt. No.
238) at 49-53; Pltf. Sum. J. Br. (Dkt. No. 242) at 25-28) Defendants have also moved for
summary judgment on Oliver’s aiding and abetting retaliation claim under Section 1983, as well
as his supervisory liability claim against Chan and Mustillo. (Def. Sum. J. Br. (Dkt. No. 238) at
53-56)

2° The FAC does not specify whether Oliver’s “supervisory liability” claim is asserted under
Section 1983, the NYSHRL, or the NYCHRL. In moving for summary judgment, Defendants
construe the supervisory liability claim as brought under Section 1983, because Plaintiff alleges
that Chan and Mustillo were “acting under color of state law.” (Def. Sum. J. Br. (Dkt. No. 238)
at 54 n.8; see FAC (Dkt. No. 195) §§ 231, 233) In response, Oliver states that “Chan and
Mustillo should be held individually liable as supervisors under §1983, [the] NYSHRL, and [the]
NYCHRL.” (Pitf. Opp. Br. (Dkt. No. 245) at 36) Because Oliver’s supervisory liability claim —
as pled in the FAC — repeatedly alleges that Chan and Mustillo were “acting under color of state
law” (see FAC (Dkt. No. 195) 231, 233), the Court concludes that the supervisory liability
claim alleged in the FAC is premised on Section 1983.
The FAC also does not specify whether Oliver seeks to impose supervisory liability on Chan and
Mustillo in connection with Oliver’s claims for discrimination, hostile work environment or
retaliation. For the reasons explained above, Oliver’s discrimination and hostile work
environment claims fail as a matter of law. Given these circumstances, Oliver’s supervisory
liability discrimination and hostile work environment claims against Chan and Mustillo likewise
fail. See Williams v. N.Y.C. Dep’t of Educ., 1:19-cv-01353(MKYV), 2021 WL 1178118, at *12
(“Plaintiffs failure to sustain a primary civil rights violation claim precludes her claims for
supervisory liability under Section 1983.”); Stryker v. HSBC Securities (USA), 16-cv-
9424(JGK), 2020 WL 5127461, at *16 (S.D.N.Y. Aug. 31, 2020) (supervisors could not be held
liable for failure to accommodate or for creating a hostile work environment where plaintiff had
not established a prima facie case as to these claims). Accordingly, this Court’s analysis of
Oliver’s supervisory liability claim against Chan and Mustillo focusses solely on whether they
can be held liable in connection with Oliver’s retaliation claim under Section 1983.

86

A. Aiding and Abetting Liability Under the NYSHRL and NYCHRL
To establish an aiding and abetting claim under the NYSHRL and the NYCHRL,
a plaintiff must show “(A) proof of an underlying violation, that is, that the employer or an
individual with some supervisory authority violated the NYSHRL and (B) proof that the
defendant aided and abetted that conduct by ‘actually participat[ing] in the conduct giving rise to

a discrimination claim.’” Beniquez v. N.Y.S. Unified Ct. Sys., 23cv7735 (DLC), 2025 WL
861299 (S.D.N.Y. Mar. 18, 2025) (quoting Feingold, 366 F.3d at 158). “The same standards of
analysis” apply to aiding and abetting claims under the NYSHRL and the NYCHRL “because
the language of the two laws is ‘virtually identical.’” Lee v. Riverbay Corp., 751 F.Supp.3d 259,
291 (S.D.N.Y. 2024) (quoting Feingold, 366 F.3d at 158-59).
For an individual defendant to be liable for retaliation under the NYCHRL [and
the NYSHRL], he must have “actually participated in the conduct giving rise to
the plaintiff's” claims. Such participation requires retaliatory “intent,” — and
therefore necessarily requires an individual’s knowledge of the protected activity
at the time of his participation. To show knowledge of protected activity, “it is
not sufficient that an employer could or even should have known about an
employee’s complaint.”
Olaechea, 2022 WL 3211424, at *5 (internal citations omitted) (quoting Malena, 886 F. Supp. 2d
at 366); see also Fay v. City of Newburgh, No. 21 Civ. 3140 (NSR), 2024 WL 4169552, at *11
(S.D.N.Y. Sept. 12, 2024) (“[I]t is axiomatic that a defendant ‘must have “knowledge” of the
protected activity to be able to “engage in retaliation.”””) (quoting Little v. Nat’ Broad. Co., 210
F. Supp. 2d 330, 384 (S.D.N.Y. 2002)).
There is no evidence here, however, that either Chan or Mustillo were aware of
Oliver’s alleged protected activity —i.e., the 2017 Discrimination Lawsuit and the December 27,
2018 settlement — prior to the alleged adverse employment actions about which Oliver

87

complains.*° To the extent that Oliver contends that “Mustillo clearly knew about the allegations
underlying the 2017 [Discrimination] [L]awsuit” because Estwick listed them in the “Akeem
Incidents Timeline,” this argument is unavailing. (See Pltf. Reply Br. (Dkt. No. 248) at 13 n.8)
Whether Mustillo was aware — at the time of her investigation — of prior allegations of
misconduct brought against Oliver has no bearing on whether she was aware of Oliver’s
protected activity — that being the 2017 Discrimination Lawsuit and the December 27, 2018
settlement. Because Oliver has not proffered evidence that either Chan or Mustillo were aware
of his alleged protected activity, Oliver’s motion for summary judgment on his NYSHRL and
NYCHRL aiding and abetting claims against Chan and Mustillo will be denied, and Defendants’
motion for summary judgment on these claims (Count Twenty) will be granted.
B. Aiding and Abetting Liability Under Section 1983
In moving for summary judgment on Oliver’s Section 1983 aiding and abetting
retaliation claim against Chan and Mustillo, Defendants argue that this claim
fails as a matter of law because no such cause of action exists. “There is no civil
aiding and abetting liability under 42 U.S.C. § 1983. The plain text of 42 U.S.C.
§ 1983 does not provide for aiding and abetting liability. Congress knows how to
impose aiding abetting liability when it chooses to do so.”
(Def. Sum. J. Br. (Dkt. No. 238) at 53 (quoting W. Daniels Land Ass’n v. Wasatch Cnty., No.
2:10-cv-558, 2011 WL 1584822, at *2 (D. Utah Apr. 26, 2011) (citing Theriot v. Woods, No.
2:09-cv-199, 2010 WL 623684 (W.D. Mich. 2010))))

30 Oliver also argues that Chan was aware of his 2015 arbitration claim. (PItf. Opp. Br. (Dkt.
No. 245) at 34) But the alleged protected activity here is Oliver’s 2017 Discrimination Lawsuit
and the subsequent settlement. In any event, Chan testified that she learned of the 2015
arbitration only in connection with the instant lawsuit (Foti Decl., Ex. 4 (Chan Dep.) (Dkt. No.
244-4) at 10-11), and there is no contrary evidence.

88

In response, Oliver concedes that it is “technically accurate” that “[Section] 1983
does not provide for aiding and abetting liability.” (Pltf. Opp. Br. (Dkt. No. 245) at 33 n.8) He

goes on to state that
to the extent Plaintiff's claim against Chan and Mustillo is stylized as “aiding and
abetting,” that language should be applied to his NYSHRL and NYCHRL claims
and the claim under §1983 should be characterize[d] as [a] direct liability claim[].
(Id.) Oliver already asserts a separate Section 1983 supervisory liability claim against Chan and
Mustillo, however. (See FAC (Dkt. No. 195) ff 230-34)
Because Section 1983 does not provide for aiding and abetting liability, see
Maddix v. City of New York, 25-CV-1909 (HG), 2026 WL 948287, at *7 n.10 (E.D.N.Y. Apr. 8,
2026) (“The Court need not, and does not, address Plaintiff's aiding and abetting liability
argument given ‘§ 1983 does not support aiding and abetting liability.’”) (quoting Woods v.
Chadwick, No, 21-cv-0662, 2021 WL 12318012, at *3 n.4 (N.D.N.Y. July 19, 2021) (citing Yi
Tai Shao v. Roberts, No.: 18-1233 (RC), 2019 WL 249855, at *17 (D.D.C. Jan. 17,
2019) (collecting cases))), Defendants’ motion for summary judgment on Oliver’s aiding and
abetting claim under Section 1983 (Count Eleven) will be granted.
C. Supervisory Liability Under Section 1983
As discussed above, “to 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 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.
“In a retaliation action based on the filing of a prior discrimination complaint, the
plaintiff must establish that each defendant was personally aware of the prior complaint at the

89

time he engaged in the alleged retaliatory conduct at issue.” Alali v. DeBara, No.07-CV-2916
(CS), 2008 WL 4700431 (S.D.N.Y. Oct. 24, 2008) (citation omitted). “Unsubstantiated
speculation that an individual with awareness of a prior complaint ‘must have’ informed a
defendant of the prior complaint based merely on their relationship with one another is
insufficient to establish awareness.” Id. (quoting Montanile v. NBC, 211 F.Supp.2d. 481, 488
(S.D.N.Y. 2002)).
As discussed above, there is no evidence that either Chan or Mustillo had
knowledge of Oliver’s protected activity — the 2017 Discrimination Lawsuit and the December
27, 2018 settlement — prior to the alleged retaliatory acts. As a result, Oliver’s Section 1983
supervisory liability claim against them premised on retaliation fails. See Springs v. City of
N.Y., 17-cv-451 (AJN), 2019 WL 1429567, at *10 (S.D.N.Y. Mar. 29, 2019) (granting
defendants summary judgment where plaintiff “pointed to no evidence to suggest that [the]
[iJndividual [d]efendants were actually aware of [plaintiffs protected activity]”) (citing Jute v.
Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)); Carmody v. New York Univ., 21
Civ. 8186 (LGS), 2023 WL 5803432, at *10 (S.D.N.Y. Sept. 7, 2023) (granting defendants

summary judgment on retaliation claim against dean of medical school where “Tp|laintiff [did]
not provide[] evidence that ithe dean] was aware of her complaints about discrimination”; to
succeed on a retaliation claim against an individual defendant, “[p]laintiff must show the
individual [d]efendants ‘had personal knowledge of [her] protected activity’” (quoting Cardwell

v. Davis Polk & Wardwell LLP, No. 19 Civ. 10256, 2023 WL 2049800, at *26 (S.D.N.Y. Feb.
16, 2023) (collecting cases))); Brown v. N.Y. City Transit Auth., 22-cv-02949 (ALC), 2024 WL
1347283, at *8 (S.D.N.Y. Mar. 29, 2024) (dismissing supervisory liability claim; “[supervisor’s]

90

lack of knowledge about the protected activity demonstrates she was not personally involved in
allegedly retaliating against Plaintiff’)
Defendants’ motion for summary judgment on Oliver’s Section 1983 supervisory
liability claim against Chan and Mustillo (Count Thirteen) will be granted.
IX. RESPONDEAT SUPERIOR
Pursuant to the doctrine of respondeat superior, Oliver moves for summary
judgment against DOE on his discrimination, hostile work environment, and retaliation claims
under the NYSHRL and the NYCHRL. (Pltf. Sum. J. Br. (Dkt. No. 242) at 28)
Defendants cross-move for summary judgment on Oliver’s respondeat superior
claims, arguing that because Estwick, Chan, and Mustillo are not liable for discrimination,
hostile work environment, or retaliation under the NYSHRL and the NYCHRL, the DOE cannot
be held vicariously liable under these statutes. (Def. Sum. J. Br. (Dkt. No. 238) at 56 n.9)
A. Applicable Law
Although a municipality cannot be held liable for a Section 1983 violation on a
respondeat superior theory, see Monell, 436 U.S. at 691, such liability is permissible under New
York law. Bonds v. City of New York, No. 12 Civ. 1772 (ARR) (MDG), 2014 WL 2440542, at
*10 n.5 (E.D.N.Y. May 30, 2014) (citing Anderson v. City of New York, 817 F. Supp.2d 77, 98
(E.D.N.Y. 2011); see also Chimurenga v. City of New York, 45 F. Supp. 2d 337, 344 (S.D.N.Y.
1999) (“Under the common law . . . a municipality may be held liable for . . . malicious
prosecution on a theory of respondeat superior.”) (citation omitted). Municipal liability is,
however, contingent on proof of an underlying violation. See, ¢.g., Clarke v. City of New York,
No. 96 Civ. 5762 (ERK), 1999 WL 608857, at *14 (E.D.N.Y. July 22, 1999) (“If plaintiff can
establish any of her pendent state law claims, she can recover against the City of New York
under the common law doctrine of respondeat superior.”).

9]

B. Analysis
Because Defendants are entitled to summary judgment on (1) Oliver’s
discrimination and hostile work environment claims against Estwick; and (2) aiding and abetting
and supervisory liability claims against Chan and Mustillo, Defendants are also entitled to

summary judgment on Oliver’s respondeat superior claim against the DOE to the extent that
claim is premised on the conduct of Chan and Mustillo, and on the conduct of Estwick as it
relates to alleged discrimination and hostile work environment.
Oliver’s respondeat superior claim against the DOE survives, however, to the
extent that it is premised on Oliver’s NYSHRL and NYCHRL retaliation claims against Estwick.
See Brathwaite v. City of New York, 19-cv-09235 (JLR) (BCM), 2023 WL 5713189, at *8
(S.D.N.Y. Sept. 5, 2023) (“Because the false arrest claim against [the individual defendant]
remains, the respondeat superior claim against the City Defendant also survives.”). The cross-
motions are denied as to these claims because of the material issues of fact discussed above.
X. DUE PROCESS
The FAC alleges that the DOE violated the Due Process Clause of the Fourteenth
Amendment when it “wrongfully re-assign[ed] Mr. Oliver . . . without conducting a thorough
investigation,” thereby “depriv[ing] Mr. Oliver of his ability to work as a teacher and his interest
in and right to work as a teacher.” (FAC (Dkt. No. 195) 176)
Defendants have moved for summary judgment on Oliver’s due process claim,
arguing that to the extent Oliver pleads that he was deprived of a property interest without due

process, a DOE employee who is administratively reassigned — but continues to be paid —

“<cannot “sustain a claim for deprivation of property without due process” even if relieved from
job duties.” (Def. Sum. J. Br. (Dkt. No. 238) at 20 (quoting Adams v. N.Y. State Educ. Dep’t,
752 F. Supp. 2d 420, 453 (S.D.N.Y. Aug. 23, 2010) (quoting Ramberran v. Dellacona, No. 07-

9?

CV-304, 2008 WL 905217, at *1-2, *4 (E.D.N.Y. Mar. 31, 2008) (collecting cases), report and
recommendation adopted, 752 F. Supp. 2d 420 (S.D.N.Y. Nov. 18, 2010))))
To the extent Oliver pleads that he was deprived of a liberty interest without due

process, Defendants contend that his “interest in his [] good reputation alone, apart from a more
tangible interest, is not a liberty or property interest sufficient’” to sustain a due process claim.
(Def. Sum. J. Br. (Dkt. No. 238) at 21 (quoting Patterson v. City of Utica, 370 F.3d 322, 330 (2d
Cir. 2004))) According to Defendants, a loss of reputation must be “coupled with the
deprivation of a more tangible interest, such as government employment,” in order to sustain a
deprivation of liberty due process claim. (Id. (quoting Patterson, 370 F.3d at 330))
Finally, Defendants argue that Oliver’s due process claim fails because he did not
file a N.Y. C.P.L.R. Article 78 action challenging his temporary reassignment. (Id. (“[P]laintiff
cannot show that any deprivation was without due process of law because he ‘could [- but did
not —] avail himself of an Article 78 proceeding to challenge any deprivation he suffered.’”
(quoting Dolcine v. Hanson, 17-CV-4835 (VEC), 2021 WL 949748, at *9-10 (S.D.N.Y. Mar. 12,
2021) and citing Johnston v. Town of Orangetown, 562 F. App’x 39, 40-41 (2d Cir. 2014)))
In response, Oliver states that his due process claim is premised on “a loss of his
reputation” and the “deprivation of a more tangible interest” — namely, being reassigned “past
the 60 days permitted under [the Collective Bargaining Agreement].” (Pitf. Opp. Br. (Dkt. No.
245) at 24 (citing Patterson, 370 F.3d at 330) Oliver further contends that he was not required to
bring an Article 78 proceeding because there was no “final and binding” agency determination.
(Id. at 23-24 (citing N.Y. C.P.L.R. § 217(1) and (2)))
A. Applicable Law
“A procedural due process claim is composed of two elements: (1) the existence
of a property or liberty interest that was deprived and (2) deprivation of that interest without due

93

process.” Bryant v. New York State Educ. Dep’t, 692 F.3d 202, 218 (2d Cir. 2012)
(citing Narumanchi v. Bd. of Trustees, 850 F.2d 70, 72 (2d Cir. 1988)).
“The Due Process Clause of the Fourteenth Amendment requires that, generally, a
person must be afforded the opportunity for a hearing prior to being deprived of a
constitutionally protected liberty or property interest.” Patterson, 370 F.3d at 329. “Due process
does not, in all cases, require a hearing before the state interferes with a protected interest,
[however,] so long as ‘some form of hearing is [provided] before an individual is finally
deprived of [the] property interest.’” Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011) (quoting
Brody v. Vill. of Port Chester, 434 F.3d 121, 134 (2d Cir. 2005)) (emphasis in Nnebe)); see
Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir. 1984) (“Where a pre-deprivation hearing is
impractical and a post-deprivation hearing is meaningful, the State satisfies its constitutional
obligations by providing the latter.”). “[D]ue process is flexible and calls for such procedural
protections as the particular situation demands.” Nnebe, 644 F.3d at 158 (citation omitted).
The appropriate process depends on the balancing of three factors: (1) “the
private interest that will be affected by the official action;” (2) “the risk of
erroneous deprivation of such interest through the procedures used;” and (3) “the
Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.”
Panzella v. Sposato, 863 F.3d 210, 218 (2d Cir. 2017) (quoting Mathews v. Eldridge, 424 U.S.
319, 335 (1976)).
The liberty guaranteed by the Fourteenth Amendment includes the “‘freedom
from bodily restraint[,] . . . the right of the individual to contract, to engage in any of the

common occupations of life, to acquire useful knowledge, to marry, establish a home and bring
up children, to worship God according to the dictates of his own conscience, and generally to
enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free

94

men.’” Bd. of Regents v. Roth, 408 U.S. 564, 572 (1972) (quoting Meyer v. Nebraska, 262 U.S.
390, 399 (1923)). Although “[a] person’s interest in his or her good reputation alone, apart from

a more tangible interest, is not a liberty or property interest sufficient to invoke the procedural
protections of the Due Process Clause,” the “[l]oss of one’s reputation can [] invoke the
protections of the Due Process Clause if that loss is coupled with the deprivation of a more
tangible interest, such as government employment.” Patterson, 370 F.3d at 330-31 (citing Bd. of
Regents, 408 U.S. at 569-70 & n.7; Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994)). A
claim premised on such a hybrid injury “is commonly referred to as a ‘stigma-plus’ claim.”
Brown v. Town of Clarkstown, No. 7:24-cv-04761-NSR, 2025 WL 1939293, at *7 (S.D.N.Y.
July 15, 2025) (citing Patterson, 370 F.3d at 330); see also Greenwood v. New York, 163 F.3d
119, 124 (2d Cir. 1998) (holding the “deprivation of a property interest satisfies the ‘plus’ prong
of stigma plus.”).
To establish a “stigma-plus” claim, a plaintiff must offer evidence of “(1) “the
utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of
being proved false, and that he or she claims is false,’ and (2) ‘a material state-imposed burden

or state-imposed alteration of the plaintiff's status or rights.”” Brown, 2025 WL 1939293, at *7
(quoting Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010) (citation omitted). “[T]Jhe statement must
[also have been] ‘publicized.’” Id. (quoting Filteau, 161 F. Supp. 3d at 291 (citation omitted)).
Where a plaintiff alleges the deprivation of a stigma-plus liberty interest, the
“‘stioma’ and ‘plus’” must be “‘sufficiently proximate.” Id. (quoting Velez v. Levy, 401 F.3d
75, 89 (2d Cir. 2005)). “*This requirement will be satisfied where (1) the stigma and plus would,
to a reasonable observer, appear connected — for example, due to their order of occurrence or
their origin — and (2) the actor imposing the plus adopted (explicitly or implicitly) those

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statements in doing so.’” Id. (quoting Velez, 401 F.3d at 89)). “‘There is no rigid requirement

that both the “stigma” and the “plus” must issue from the same government actor or at the
same time.’” Id. (quoting Velez, 401 F.3d at 89).
B. Analysis
As an initial matter, Oliver does not respond to Defendants’ argument that his
temporary administrative reassignment with pay does not amount to a deprivation of property for
purposes of a due process claim. Oliver’s failure to address Defendants’ argument “operates as
an abandonment of [his due process claim to that extent].”?! Senno v. Elmsford Union Free Sch.
Dist., 812 F. Supp. 2d 454, 468 (S.D.N.Y. 2011); see also Duarte v. St. Barnabas Hosp., 265 F.
Supp. 3d 325, 352-53 (S.D.N.Y. 2017) (“‘Federal courts may deem a claim abandoned when a
party moves for summary judgment on one ground and the party opposing summary judgment
fails to address the argument in any way.’”) (quoting Taylor v. City of New York, 269 F. Supp.
2d 68, 75 (E.D.N.Y. 2003)); Plahutnik v. Daikin Am., Inc., 912 F. Supp. 2d 96, 104 (S.D.N.Y.
2012) (“[A]rguments not made in opposition to a motion for summary judgment are deemed
abandoned.”); Menes v. City Univ. of N.Y. Hunter Coll., 578 F.Supp.2d 598, 612 n.14 (S.D.N.Y.

31 In any event, any such claim would fail. “An employee who continues to be paid cannot
‘sustain a claim for deprivation of property without due process’ even if relieved from job
duties.” Adams, 752 F.Supp.2d. at 453-54 (holding that DOE had not deprived tenured teachers
of a property interest when it reassigned them with pay, even though the teachers were
“prohibit[ted] from teaching and [from] ‘associating with teaching colleagues who [were]
performing classroom duties’”) (collecting cases); see also Farooq v. N.Y.C. Health & Hosps.
Corp., No. 19 Civ. 6294, 2020 WL 5018387, at *4 (S.D.N.Y. Aug. 25, 2020), aff’'d sub nom.
Farooq v. City of New York, No. 20-3185, 2022 WL 793117, at *4 (2d Cir. Mar. 16, 2022)
(“The Second Circuit has intimated, and courts in this district routinely hold, that no property
interest is implicated when a public employee is suspended with pay.”).

06

2008) (“Because Plaintiff has not addressed this claim in his opposition papers, it is deemed
abandoned.”).°?
As to Oliver’s “stigma-plus” deprivation of liberty claim, he argues that “he
suffered a loss of his reputation coupled with the ‘deprivation of a more tangible interest’” when
his reassignment continued ten days beyond the sixty-day limit imposed by the Collective
Bargaining Agreement between the DOE and the United Federation of Teachers. (Pltf. Opp. Br.
(Dkt. No. 245) at 24; see Foti Decl., Ex. Q (Collective Bargaining Agreement) (Dkt. No. 247-23)
at 5)
As discussed above, to establish a “stigma-plus” claim, Oliver “must first show
that the [DOE] made stigmatizing statements about him — statements that call into question [his]
‘good name, reputation, honor, or integrity.” Patterson, 370 F.3d at 330-31 (quoting Quinn v.
Syracuse Model Neighborhood Corp., 613 F.2d 438, 446 (2d Cir. 1980)). In his opposition brief,
Oliver does not identify any such public statement made by the DOE or a DOE employee. To
the extent Oliver’s stigma-plus claim is premised on Estwick’s email to School parents
announcing his reassignment and the DOE investigation, “[cJourts have consistently held that
statements announcing personnel decisions, even when leaked to the press, and even when a

32 Defendants have similarly abandoned their argument that Oliver’s due process claim is barred
by his failure to bring an Article 78 action. They have not responded to Oliver’s argument that
he was not required to pursue an Article 78 proceeding because there was no “final and binding”
agency determination. (See Def. Reply Br. (Dkt. No. 240) at 11-12) As a general matter, a
person challenging agency action in New York must bring an Article 78 action “within four
months after the determination to be reviewed becomes final and binding.” N.Y. C.P.L.R.
§ 217(1). Given that Defendants have not disputed Oliver’s claim that there was no “final and
binding” agency determination here, Defendants’ assertion that Oliver was obligated to pursue
an Article 78 proceeding is not persuasive. See Jeanty v. City of New York, 18 Civ. 5920
(KPF), 2019 WL 2343008, at *6 (S.D.N.Y. June 3, 2019) (plaintiff was not required to file an
Article 78 proceeding because his state agency employer never issued a “final and binding”
determination),

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reader might infer something unfavorable about the employee, are not actionable.” Weise v.
Kelley, No. 08-CV-6348 (CS), 2009 WL 2902513, at *4 (S.D.N.Y. Sept. 10, 2009) (citing
O’Connor v. Pierson, 426 F.3d 187, 195 (2d Cir. 2005); Pisani v. Westchester Cnty. Health Care
Corp., 424 F.Supp.2d 710, 717 (S.D.N.Y. 2006); Esposito v. Metro-North Commuter R.R.
Co., 856 F.Supp. 799, 805 (S.D.N.Y. 1994); Kelly Kare, Ltd. v. O’Rourke, 930 F.2d 170, 177
(2d Cir. 1991); Flood v. Cnty. of Suffolk, 820 F.Supp. 709, 715 (E.D.N.Y. 1993). “Nor are true
public statements that’a party is under investigation stigmatizing.” Id. at *5.
Given that Oliver has not identified a statement made by Defendants that (1)
injured his reputation; (2) “is capable of being proved false”; and (3) is claimed by Oliver to be
false, see Brown, 2025 WL 1939293, at *7, he has not proffered sufficient evidence to create a
material issue of fact as to his due process claim.?
Accordingly, Defendants’ motion for summary judgment will be granted as to
Plaintiff's due process claim (Count Two).
XI. DAMAGES STEMMING FROM LOSS OF “PER SESSION” WAGES
The FAC alleges that, “due to his reassignment, Mr. Oliver was unable to
participate in per session activities . . . , resulting in a loss of additional income that Mr. Oliver
would have received and on which he relied.” (FAC (Dkt. No. 195) § 67) “Per session work is
similar to overtime work for teachers.” (Def. R. 56.1 Stmt. (Dkt. No. 237) { 176)

33 Oliver’s “stigma-plus” deprivation of liberty claim also fails because he has not offered
evidence of a “a material state-imposed burden or state-imposed alteration of [his] status or
rights.” Brown, 2025 WL 1939293, at *7. To the extent Oliver argues that he suffered a state-
imposed burden or state-imposed alteration of his rights because the DOE’s investigations
exceeded the 60-day limit imposed by Article 21(4) of the Collective Bargaining Agreement (see
Foti Decl., Ex. Q (Collective Bargaining Agreement) (Dkt. No. 247-23) at 5), for the reasons
explained above, the DOE’s investigations into Oliver’s alleged misconduct did not violate the
60-day limit.

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Defendants have moved for summary judgment “[t]o the extent plaintiff seeks
damages for per session wages,” arguing that Oliver “did not apply for per session work after
[his] March 2019 [arrest and reassignment].” (Def. Sum. J. Br. (Dkt. No. 238) at 62-63) Oliver
contends that his claim for lost per session wages should survive because he “was barred from

even applying for per-session [work] as soon as he was reassigned on March 22, 2019.” (Pltf.
Opp. Br. (Dkt. No. 245)) at 38)
Oliver has not proffered evidence that he sought per-session work after his March
2019 reassignment, nor has he proffered evidence that he regularly performed per-session work
prior to his reassignment. Given the absence of such evidence, Oliver’s damage claim premised
on the notion that he lost out on per-session work is speculative. See Shaheen v. Gonzales, No.
05 Civ. 8400 (LBS), 2006 WL 3164763, at *8 (S.D.N.Y. Nov. 1, 2006) (granting defendant

summary judgment on plaintiffs lost wages claim based on employer’s failure to promote him to

a higher paying position where plaintiff had not offered evidence that he would have accepted
the position); see also Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 22 (2d Cir. 1996)
(finding that “district court abused its discretion in permitting [plaintiff's damages expert] to
testify regarding [p

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11439455. Public record. Not legal advice.