Trial News

The Second Circuit reversed summary judgment in favor of a school district that allegedly took adverse employment action against a teacher in retaliation for engaging in protected activity under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and §504 of the Rehabilitation Act. The court ruled that the plaintiff had proffered enough evidence for a jury to reasonably conclude that the school district retaliated after she complained about failures to comply with special education requirements and sexual harassment. (Pistello v. Bd. of Ed. of the Canastota Cent. Sch. Dist., 2020 WL 1817481 (2d Cir. Apr. 10, 2020).)

Michele Pistello was a high school special education teacher for the Canastota Central School District in upstate New York. At the beginning of the 2014–2015 school year, three of Pistello’s grade 11 students were assigned a schedule that had them leave her class after just 10 minutes of instruction to catch a bus to another program—meaning that those students were not receiving the mandated amount of instruction under their individualized education programs (IEP). Pistello and another teacher tried to resolve the issue with various school officials and find another way for the students to meet their IEP requirements, but several months passed before any action was taken.

Separately, Pistello was discussing with the school’s assistant principal an incident involving her attempt to discipline an unruly student who then made a crude remark to her when the assistant principal commented that he found it hard to believe she had never had a student say that to her before. Pistello later filed a complaint for retaliation, among other claims.

The district court granted summary judgment to the defendant, finding that the plaintiff had not offered sufficient evidence to prove that the defendant’s reasons for taking disciplinary action against her were pretext and not legitimate. The plaintiff appealed to the Second Circuit, which reversed the lower court’s decision as to her statutory claims but affirmed dismissal of additional hostile work environment and constructive discharge claims.

To demonstrate a prima facie case for retaliation, a plaintiff must show that he or she engaged in protected activity under the statute, that the employer knew about this activity, that the employer took an adverse employment action, and that this action is causally connected to the protected activity. Once a plaintiff establishes a prima facie case, the defendant must provide “a legitimate, non-retaliatory reason for the challenged employment decision.” If the defendant meets this bar, the burden shifts back to the plaintiff to submit evidence that could support a reasonable fact-finder’s determination that the employer’s reasons are simply pretext.

The court concluded that there was sufficient evidence for a jury to find that the school district’s treatment of the plaintiff after she complained about what was going on in the special education program was retaliatory. For example, in just a six-month period, the plaintiff was reprimanded multiple times, including for failing to notify the school’s special education director about the IEP compliance issue—even though she had done so with other school officials and believed based on conversations with another teacher that he had made the director aware of the problem. The court also cited the memos about her professional conduct—all received within a six-week period—and the meetings with school officials regarding those professional conduct memos, as well as the inaccurate performance report and how the school district flip-flopped on decisions about the plaintiff’s reassignments and professional conduct discipline depending on whether her attorney was involved in the discussions.

The Second Circuit also determined that the lower court erred when it construed ambiguous evidence in the record in favor of the defendant. It specifically pointed to the district court’s downplaying of the plaintiff’s reassignment to teach a different subject and at a lower grade level as necessary for the district’s needs when no other teacher received the same type of reassignment. The court noted that “in light of, among other things, the considerable number of reprimands against [the plaintiff] occurring in a relatively short period of time after her protected conduct and that the School District consistently changed its mind about its actions towards [her] after she retained counsel . . . a reasonable juror could construe these actions as materially adverse, as well as unfounded and retaliatory in nature.”

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