Teacher’s Retaliation Claim Proceeds Under Americans With Disabilities Act and Related Statutes

In Modica v. N.Y.C. Dept. of Education et al, 20-CV-4834, 2021 WL 3408587 (S.D.N.Y. Aug. 4, 2021), the court, inter alia, held that the plaintiff, a teacher, sufficiently alleged retaliation claims under the Americans with Disabilities Act, the Rehabilitation Act, the New York State Human Rights Law, and the New York City Human Rights Law.

The court summarized the law as follows:

To state a prima facie claim for retaliation under the first three statutes, Modica must allege that (1) she engaged in an activity protected by the relevant statutes; (2) her employer was aware of this activity; (3) her employer took adverse employment action against her; and (4) a causal connection exists between the alleged adverse action and the protected activity. Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). “The elements of a prima facie case of retaliation under the NYCHRL are identical, except that the plaintiff need not prove any ‘adverse’ employment action; instead, [she] must prove that something happened that would be reasonably likely to deter a person from engaging in protected activity.” Nieblas-Love v. N.Y.C. Hous. Auth., 165 F. Supp. 3d 51, 70 (S.D.N.Y. 2016) (internal quotation marks omitted).

Applying the law, the court explained:

Here, Modica adequately alleges that she engaged in a protected activity — namely, the filing of her OEO complaint on February 14, 2019 — and that she suffered a “barrage” of adverse actions in retaliation for that activity. See Am. Compl. ¶¶ 11, 24; Richard v. N.Y.C. Dep’t of Educ., No. 16-CV-957 (MKB), 2017 WL 1232498, at *17 (E.D.N.Y. Mar. 31, 2017) (“[F]ormal complaints to the OEO … constitute protected activity.”). She further alleges that Christie was aware of her intention to file the complaint the day before she actually filed it; that Christie explicitly referenced her intention to file it as a perceived “threat[ ]”; and that she started suffering a chain of adverse actions — including an investigation, disciplinary letters, counseling memos, negative evaluations, the loss of proctoring duties, and eventually termination — almost immediately thereafter. Am. Compl. ¶¶ 13-20. Defendants argue that the disciplinary letters and counseling memos are legally insufficient to constitute adverse actions and that, without those actions, the passage of more than four months between Modica’s protected activity and her loss of proctoring responsibilities and eventual termination forecloses any inference of retaliatory intent. Defs.’ Br. 15-17. But Defendants make no mention of the investigation, of which Modica was allegedly given notice soon after she filed her OEO complaint. Am. Compl. ¶ 13. Moreover, even if (for the reasons discussed above) the letters and memos did not themselves qualify as adverse employment actions, the “intervening pattern of antagonism between” Modica and her employers is sufficient to “bridge[ ]” the temporal gap between Modica’s filing of her OEO complaint in February 2019 and the indisputable adverse employment actions that occurred in June 2019. Burgos v. City of New York, No. 18-CV-1150 (JPO), 2019 WL 1299461, at *10 (S.D.N.Y. Mar. 21, 2019) (internal quotation marks omitted). In short, Modica sufficiently pleads retaliation claims under all four statutes.

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