Lebowitz v. N.Y.C. Dep't of Educ.

1

2022 NY Slip Op 33166(U)

HERMAN LEBOWITZ, EKATERINA REZNIKOV, and KEITH BLACK, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, JOHN O'MAHONEY and LAURA IZZO (individually and in their official capacities), Defendants.

Index No. 526062/20

Supreme Court, Kings County

September 1, 2022

Unpublished Opinion

PRESENT: HON. GINA ABADI, JUSTICE.

DECISION/ORDER

GINA ABADI, JUDGE

The following e-filed papers read herein:

NYSCEF Doc Nos.:

Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed.......

11, 13, 33

Opposing Affidavits (Affirmations)........

40, 62

Affidavits/ Affirmations in Reply.........

Upon the foregoing papers, defendants New York City Department of Education (DOE), John O'Mahoney (O'Mahoney), and Laura Izzo-Iannelli s/h/a Laura Izzo (Izzo-Iannelli) move motion sequence 1, for an order pursuant to CPLR § 3212 granting them summary judgment dismissing the complaint.

The motion sequence 1 is granted to the extent that (1) the complaint, with respect to plaintiff Herman Lebowitz, is dismissed, and (2) plaintiffs Ekaterina Reznikov and Keith Black's claims against the DOE (but not those against Izzo-Iannelli and O'Mahoney) are dismissed with respect to acts occurring after June 25, 2014, the date on which the notice of claim was served on the DOE. All other relief requested is denied.

BACKGROUND

Plaintiffs Herman Lebowitz, Ekaterina Reznikov, and Keith Black commenced this action on December 29, 2020 with the filing of the summons and complaint.^[1] In the complaint, plaintiffs allege that defendants discriminated against them based on their age in violation of the New York City Human Rights Law (City HRL) (Administrative Code City of N.Y. § 8-107 [7]) by subjecting plaintiffs to a hostile work environment while they were teachers at Sheepshead Bay High School (Sheepshead Bay). Plaintiffs are DOE teachers each of whom, as of the 2011-2012 school year, were tenured, over 40 years of age and working at Sheepshead Bay. O'Mahoney became principal of Sheepshead Bay in January 2012 and Izzo-Iannelli became an assistant principal in or around February 2012 along with being a supervisor of plaintiffs.

At some point before the end of the 2011-2012 school year, the New York State Education Department designated Sheepshead Bay as a failing school. In view of this designation, the DOE labeled Sheepshead Bay a "turnaround" school resulting in the entire teaching staff being discharged with the opportunity to reapply for their former jobs. On June 29, 2012, an arbitrator sustained a union grievance brought challenging this action at Sheepshead Bay and other failing schools as a violation of collective bargaining agreements. In sustaining the grievance, the arbitrator required, pursuant to a stipulation between the unions and the DOE, that the teachers who had been working at such schools would be allowed to continue working at their schools as if there had been no interruption in their employment, including their reinstatement to their rightful place in seniority order. Given that Sheepshead Bay had already hired some replacement teachers for the 2012-2013 school year at the time of the arbitrator's ruling, Sheepshead Bay ended up being overstaffed at the commencement of the 2012-2013 school year. Since school funding is tied to the number of students at a school, and because Sheepshead Bay lost students for the 2012-2013 school year, this overstaffmg compounded budget issues caused by Sheepshead Bay's loss of students.

In Spring of 2013, the DOE formally decided to phaseout Sheepshead Bay through a multi-year process in which it would not accept incoming ninth graders in the 2013-2014, 2014-2015, and 2015-2016 school years and would graduate its last class at the end of the 2015-2016 school year. This loss of students caused budgetary issues for each of those years and required that teachers be excessed each of those years. Teacher tenure and seniority rules required that teachers be excessed based on seniority (see Education Law §§ 2585 and 2588) and precluded the discharge of more senior teachers except for just cause (see Education Law §§ 3020 and 3020-a).

Plaintiffs generally allege that the DOE, through the acts of O'Mahoney and Izzo-Ianelli, began a campaign of harassment and discrimination of plaintiffs and other tenured senior teachers who made more money than younger, less experienced teachers with the goal of pushing them to leave Sheepshead Bay or obtaining "just cause" dismissals in order to reduce the average teacher salary. According to Lebowitz, O'Mahoney stated, in January 2012, that Sheepshead Bay was overbudget and that some teachers were paid more simply because they had more years in the system rather than because they contributed to the school. Each of the plaintiffs was present at a staff meeting held during the 2013-2014 school year at which O'Mahoney allegedly stated that the older teachers were in their "fuck you years" earning their "fuck you money" and that he wanted them out of the school. When Lebowitz asked O'Mahoney what he meant by his comments, O'Mahoney purportedly stated, in substance, that "I tried to get rid of senior teachers, but I couldn't" because "[e]ither it takes too long or the union steps in" (Complaint, at ¶¶ 23-26). Black and Lebowitz each testified at their depositions that O'Mahoney allegedly repeated his "fuck you years" and "fuck you money" comments at a staff meeting during the 2014-2015 school year (Black Dep. Trans, at 33, Ins. 6-7 & Ins. 16-17; Lebowitz Dep. Trans, at 53, Ins 14-18).

In the complaint, plaintiffs allege that the observation reports for plaintiffs, who had each received positive reports throughout their careers, were negative for the 2012-2013 and 2013-2014 school years, that the reports were negative for the 2014-2015 school year with respect to Lebowitz and Black (Reznikov had left the school during that year) and were negative with respect to Lebowitz for the 2015-2016 school year (Black was excessed prior to that school year) (Complaint ¶¶ 41-44).^[2] Plaintiffs also assert that differential treatment with respect to the reports is borne out by DOE records showing that for the 2013-2014 school year, which was also the first year the evaluations were performed using the "Advance," "Danielson" or HEDI (i.e. "highly effective," "effective," "developing, and "ineffective") rating system/scale, 16 teachers received negative ratings of developing or ineffective, and of these 16, 15 were over the age of 40 (the one under 40 was 39 years old) (Complaint at ¶ 119; Defendants Statement of Material Facts at ¶¶ 29-36; Plaintiffs' Counterstatement of Material Facts at ¶ 29-36).^[3] In addition, each of the 10 teachers placed on the teacher improvement plan (which is only done if the teacher received a developing or ineffective rating in the previous year) for the 2014-2015 school year was an older, senior teacher (Complaint at ¶ 120). The complaint alleges that for the 2014-2015 school year all 6 of the teachers given developing ratings were over the age of 40 and that for the 2015-2016 school year the 2 teachers given developing ratings were over 40 years old (Complaint at ¶¶ 121-123).

With respect to teacher ratings, defendants note that the records relied upon by plaintiffs also show that, of the 60 teachers evaluated for the 2013-2014 school year, 44 received effective ratings, with 21 of those teachers being over 40, that for the 2014-2015 school year, of the 36 teachers evaluated, 29 received effective ratings, with 17 of those teachers being over 40, and that for the 2015-2016 school year, of the 24 teachers evaluated, 21 received effective ratings, with 16 of them being over 40.

Specifically with respect to Lebowitz, plaintiffs allege in the complaint that he was one of the teachers who did not get his job back after the 2012 school year when teachers were initially forced to reapply for their positions at Sheepshead Bay, and that he only was able to get his position back for the 2012-2013 school year following the arbitrator's ruling (Complaint at ¶¶ 27-33). During the 2014-2015 school year, O'Mahoney denied Lebowitz's request to be an ICT teacher and cafeteria supervisor despite Lebowitz's entitlement to the position due to his seniority,^[4] and Lebowitz ultimately only obtained the position after filing a grievance (Complaint at ¶¶ 55-56). Regarding the 2014-2015 school year rating, Izzo-Ianelli allegedly told Lebowitz mat she had rated Lebowitz in two previous reports, and that she had to give him a low rating in the third report and that O'Mahoney was going to give him low rating in another report so as to bring down his year-end rating. These improperly low observation ratings continued during the 2015-2016 school year and were used by O'Mahoney to bring charges against Lebowitz under Education Law § 3020-a in order to discharge him (Complaint at ¶¶ 42-53).

With respect to Reznikov, plaintiffs allege in the complaint that Izzo-Ianelli, at a meeting held in a computer room in September 2012, told the older teachers that they were "yesterday" while younger teachers were "tomorrow," "that teachers needed to work with technology," and that she was "not going to tolerate stale teaching methods of older teachers." When Reznikov tried to contribute during this meeting Izzo-Ianelli told Reznikov that "nobody needs your stale methods" and "we don't want your experience" (Complaint at ¶¶ 61-62). In September 2013, when Reznikov was dealing with damage to her home caused by Hurricane Sandy, Izzo-Ianelli allegedly told Reznikov that, at her age, she could not handle both teaching and fixing her home, and that she should think about retirement (Complaint at ¶ 64). When Reznikov responded by...