Supreme Court, Kings County, February 5, 2018

Taubman Kimelman & Soroka, LLP, New York City, for plaintiff.

Zachary W. Carter, Corporation Counsel, New York City (Michael F. Fleming of counsel), for defendant.

This case addresses the labyrinth of which preclusion doctrines apply when a federal district court rules upon both a federal cause of action and a state cause of action and then issues an order dismissing the state cause of action without prejudice. The district court (1) ruled that a plaintiff need not file a notice of claim when suing a principal employed by the NYC Department of Education (DOE) for allegedly violating the State and City Human Rights Laws (NYSHRL and City HRL), since the principal is not an officer of the DOE, and (2) denied the defendant's motion to dismiss the State and City HRL claims against the principal for retaliating against plaintiff in response to her opposing the principal's campaign of age discrimination. As will be set forth below, the doctrines of collateral estoppel and law of the case apply to most of the federal court's rulings.

Background Facts

Plaintiff Latyana Collins was first hired by the DOE as a teacher in 2004 and received tenure in 2007. She then obtained a Master's degree and subsequently took an examination for and obtained a license as an assistant principal (AP). After serving as a citywide master teacher in special education for a year, plaintiff was promoted to the title of AP for District 79—"Alternate Schools & Programs"—and was assigned to be one of three assistant principals in the ReStart Academy. As a newly appointed AP, plaintiff had to serve a five year probationary period. At all relevant times, the principal of ReStart Academy was defendant Joan Indart-Etienne. Plaintiff's primary physical placement was at the Euphrasian Residence where her duties included ensuring students were receiving instruction, supervising and aiding the staff and observing and evaluating teacher performance.{**59 Misc 3d at 1029}

Although plaintiff opposed many of the practices employed by Etienne at Euphrasian Residence, believing them to be unlawful,^[FN1] of pertinence to the instant matter, plaintiff alleged that Etienne referred to tenured teachers of 60 years of age and over as "rubber room teachers" and repeatedly stated that "they had to go." (State complaint ¶ 24; federal complaint ¶ 50.)^[FN2] Etienne directed plaintiff to change from satisfactory to unsatisfactory the ratings that plaintiff had given said teachers as part of her evaluation duties, and told her that she (plaintiff) needed to see what Etienne was seeing and that they "must get a U" (unsatisfactory rating) (state complaint ¶ 24; federal complaint ¶ 50). Etienne also repeatedly edited plaintiff's teacher observation reports and instructed plaintiff to focus on these older teachers and visit their classroom multiple times a day and harass them. (State complaint ¶ 26; federal complaint ¶ 52.) In her state complaint, plaintiff specifically avers that the DOE "launched a campaign and engaged in a pattern and practice of terminating teachers nearing the age of 60 and or pressing or coercing them" to resign (state [*2]complaint ¶ 27).

In or around May and June 2012, when plaintiff refused to participate in the DOE and/or Etienne's "discriminatory campaign to rid the schools of tenured teachers" 60 years and older, Etienne started to harass plaintiff, "openly criticizing and demeaning her" in front of the staff and "yelling and shouting at her," and telling her that "this district is not a good fit for you." (State complaint ¶ 28; federal complaint ¶¶ 53-54.) Plaintiff further alleges that Etienne threatened to give her, as a probationary administrator, an unsatisfactory rating on her end of the year annual performance evaluation unless she agreed to resign (state complaint ¶ 29; federal complaint ¶ 54). In contrast, in or about the end of January 2012, prior to plaintiff's refusal to discriminate against older teachers, Etienne gave her written commendations for her excellent work. (State complaint ¶ 33; federal complaint ¶ 58.) During a meeting between Etienne and plaintiff's union representative, Collins{**59 Misc 3d at 1030} heard Etienne say "I want her out." (State complaint ¶ 30; federal complaint ¶ 55.)

Following her resignation, plaintiff alleges that the DOE failed to follow its own rules and regulations and/or its collective bargaining agreement, which mandated that plaintiff revert to her former position as a tenured "master teacher" within District 28 and be assigned a permanent position (state complaint ¶ 34; federal complaint ¶ 59). Instead, plaintiff "was assigned" to District 28's absent teacher reserve (ATR) where she acted as a substitute teacher on an as needed basis, with no permanent assignment, at a lower salary (state complaint ¶¶ 34, 35; federal complaint ¶¶ 59, 60, 65). The ATR pool is usually reserved for teachers who have been excessed from failed or closed schools or who have been laid off (state complaint ¶ 35; federal complaint ¶ 60). Being in the ATR stigmatized plaintiff from receiving permanent job offers since teachers in the ATR "are generally viewed negatively as poor teachers" who come from failing schools (state complaint ¶ 39; federal complaint ¶ 60). Plaintiff claims that during the 2012-2013 school year, she "constantly interviewed" for permanent positions but never received any job offers," and states "[u]pon information and belief" that defendant gave her a poor reference, which precluded her from getting any job offer (state complaint ¶ 38; federal complaint ¶¶ 61-62). She specifically avers that during a meeting in September 2012, Etienne made "false, negative and disparaging remarks about her" to former colleagues (state complaint ¶ 37; federal complaint ¶ 62). She also avers that some unnamed DOE human resources (HR) person "conceded" that she should have reverted to her previous title of master teacher but failed to offer any explanation as to why that did not occur and stated "that she was lucky to be employed at all." (State complaint ¶ 40; federal complaint ¶ 65.)

Plaintiff also avers that in September 2013, she contacted the DOE and was told that a position was created for her in the ReStart Academy—"i.e. Indart-Etienne"—and that she had been taken off of the ATR list (state complaint ¶ 41; federal complaint ¶ 66). She was sent to work at an alternative program in District 79 located in the Bronx which was far from her home in Queens and which constituted a "burdensome travel" (state complaint ¶ 43; federal complaint ¶ 68). Plaintiff claims that the principal of the GED Plus in the Bronx conceded that he had no need for her but took her in based{**59 Misc 3d at 1031} upon a call from a human resource person at District 79 who stated that a colleague of hers was "out to get Plaintiff due to no fault of her own." (State complaint ¶ 44; federal complaint ¶ 69.) Plaintiff alleges that from September 2013 until February 2016 she did not receive a regular paycheck. Plaintiff then summarized a number of provisional positions she held, none of which permitted her to complete the requisites for her license as an assistant principal.

In sum, plaintiff alleges that defendant Etienne retaliated against her for her complaints [*3]regarding age discrimination against teachers over the age of 60 and "abused her authority in order to harass and unduly burden Plaintiff and negatively impact her career." (State complaint ¶ 46; federal complaint ¶ 71.) She also asserts that Etienne "orchestrated, unduly influenced and/or played a part in all the adverse actions" taken against her (state complaint ¶ 66; see also federal complaint ¶ 71).

Federal District Court Action

Plaintiff originally commenced an action in the U.S. District Court for the Southern District of New York (federal court) on June 26, 2015, against the DOE, the City of New York, and three individuals—the Superintendent and the Deputy Superintendent of District 79 and defendant Etienne, in both their individual and employee capacities—alleging that she was subject to adverse employment actions (threats of negative ratings, constructive discharge, poor reference, demotion and retaliatory job assignments) because she refused to discriminate against older teachers and because she complained about discrimination against disabled and minority students. Plaintiff initially brought 11 causes of action against the defendants.

In a lengthy decision dated January 11, 2016 (Collins v City of New York, 156 F Supp 3d 448 [SD NY 2016]), Judge Valerie Caproni (federal court) first noted that in response to defendants' motion to dismiss, plaintiff dropped all of her claims against the City of New York and many other federal causes of action. As such the remaining claims subject to defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure rule 12 (b) (6) were based upon: the Equal Educational Opportunities Act of 1974 (EEOA) (20 USC § 1701 et seq.); the Individuals with Disabilities Education Act (IDEA) (20 USC § 1400 et seq.); section 504 of the Rehabilitation Act of 1973 (29 USC § 794 et seq. [RHA or section 504]); the Age Discrimination{**59 Misc 3d at 1032} in Employment Act of 1967 (ADEA) (29 USC § 621 et seq.); and both the NYSHRL and the City HRL as contained, respectively, in Executive Law § 290 et seq. and Administrative Code of the City of New York § 8-101 et seq.

Defendants asserted that Collins did not have standing to sue under the ADEA, EEOA or IDEA; her claims were partially time-barred under the applicable statute of limitations; her state claims were barred because she did not file a notice of claim as required by the Education Law; and her allegations failed to state a plausible claim for retaliation. (156 F Supp 3d at 454.) The federal court granted the motion to dismiss the EEOA, IDEA and ADEA claims on multiple grounds,^[FN3] thus leaving only the RHA claim extant, and also dismissed the state and municipal law claims against all defendants except for Indart-Etienne.

With respect to the section 504 claim, the court noted that plaintiff had conceded that any of her claims arising prior to June 26, 2012, were time-barred pursuant to the three year statute of limitations in New York. (156 F Supp 3d at 458.) The federal court rejected plaintiff's argument that it should still consider those time-barred acts as admissible evidence in support of her timely retaliation claims under the continuing violation doctrine. The federal court found that "[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate 'unlawful employment practice' " that started a "new clock" for filing charges. (Id., citing [*4]National Railroad Passenger Corporation v Morgan, 536 US 101, 113-114 [2002].) Therefore, Collins' claims that she was constructively discharged and threatened with negative evaluations prior to June 26, 2012, were discrete actions that were time-barred under the statute of limitations. (Id.)^[FN4]

The federal court then found that Collins had pleaded sufficient facts to establish that she engaged in protected activity under section 504 and that there was a causal connection between the protected activity and the adverse action "albeit {**59 Misc 3d at 1033}minimally" (156 F Supp 3d at 458-459).^[FN5] The federal court found that accepting the Collins allegations as true and drawing all inferences in her favor, as it had to do at this stage of the proceeding, plaintiff had alleged a "sufficient causal nexus between the protected activity and the adverse action to survive a motion to dismiss based on proximity in time combined with retaliatory animus." (Id. at 459.) The court found there was approximately six months between Collins' alleged overt opposition to Etienne's alleged discriminatory actions against disabled students (protected activity), which seems to have occurred after Etienne gave her a positive evaluation in January 2012, and Collins' alleged retaliatory assignment to the ATR (discriminatory treatment), which seems to have occurred in the summer of 2012, and that six months did not cross the outer limits to negate a sufficient causal nexus (id. at 459). Finally the court found that Collins had alleged retaliatory animus—Etienne's statement at a union meeting in June 2012 that "I want her out" and the District 79 HR representative's statement that District 79 should hire Collins "because a colleague of [hers] was out to get [Collins] due to no fault of her own." (Id. at 459, citing federal complaint ¶ 69.)^[FN6]

Federal Decision on Collins' State and Municipal Claims

Defendants moved to dismiss Collins' multiple state and municipal law claims that Etienne retaliated against her for refusing to discriminate against teachers on the basis of their age based upon Collins' failure to file a notice of claim required by Education Law § 3813. The federal court first noted that Education Law § 3813 mandated that a notice of claim is to be filed prior to commencing an action against a school, school district, board of education, or education [*5]officer, and that failure to present a claim within the statutory time limitation was a "fatal defect." (156 F Supp 3d at 460.) The court then ruled that while superintendents qualified as "officers" upon whom a notice of claim must be filed, principals did not. (Id. at 460, citing Education Law § 2 [13], Benedith v Malverne Union Free Sch. Dist., 38 F Supp 3d 286, 312 [ED NY 2014], and Lawson v New York City Bd. of Educ., 2011 WL 5346091, 2011 US Dist {**59 Misc 3d at 1034}LEXIS 127789 [SD NY, Aug. 30, 2011, No. 09 Civ. 1335(JSR)(HBP)].) Since Collins failed to file a notice of claim, the federal court dismissed the state and city claims as against the DOE and the superintendent and deputy superintendent but left the claims against Etienne standing. (Id. at 460.)

The federal court also denied defendants' rule 12 (b) (6) motion to dismiss Collins' State and City HRL claims against Etienne for retaliation in response to Collins' opposing age discrimination. Specifically, defendants asserted that Collins failed to allege that she had engaged in a protected activity. (156 F Supp 3d at 460-461.) After finding that the elements for a retaliation case under both the ADEA and the State and City HRLs are the same^[FN7] (156 F Supp 3d at 460-461), the federal court found that both the State and City HRLs prohibit retaliation against individuals who oppose any discriminatory practice that the statute makes illegal. (Id., citing Executive Law § 296 [7], and City HRL [Administrative Code of City of NY] § 8-107 [7].) The federal court also noted that both laws prohibit employers from discriminating on the basis of age. (Executive Law § 296 [1]; City HRL § 8-107 [1].) The federal court then found that "[b]y openly refusing to participate in . . . Etienne's alleged discriminatory practices against teachers over the age of sixty, Collins had engaged in an activity protected" by both the State and City HRLs. (156 F Supp 3d at 461.) Collins set forth the elements of retaliation because she asserted that she openly expressed to Etienne her opposition to Etienne's requests that she change her satisfactory observations of the older teachers to unsatisfactory and that Etienne thus knew of her protected activity. (Id.)

The court then postulated that it might no longer have subject matter jurisdiction over the state and municipal law claims unless these claims were so related to the federal claims such that they were part of the "same case or controversy"; i.e., that they "derive[d] from a common nucleus of operative fact." (156 F Supp 3d at 461, citing Achtman v Kirby, McInerney & Squire, LLP, 464 F3d 328, 335 [2d Cir 2006].) The court noted that the remaining federal claim under the RHA and the state and municipal claims were based upon different allegations of discrimination—the former concerning disabled students while the latter concerned senior aged teachers. While the alleged retaliatory{**59 Misc 3d at 1035} acts were the same with respect to Collins' opposition to both types of discrimination, the protected activity was different for each claim. (Id. at 461.) Thus, "despite some overlap," the court was not clear as to whether the two sets of claims actually arose from a common nucleus of operative fact so as to permit it to invoke supplemental jurisdiction. (Id. at 461-462.) This decision was "So Ordered" on January 11, 2016. Neither defendants nor plaintiff appealed this decision.

Plaintiff, by letter dated February 16, 2016, requested that the federal court dismiss with prejudice her claim under section 504 of the RHA pursuant to Federal Rules of Civil Procedure rule 41 (a) (2), which governs voluntary dismissal of actions by order of the court. This request would divest the court of its original jurisdiction and, as a result, supplemental jurisdiction over the city and state law claims. [*6]The federal court "So Ordered" this request on the same date, resulting in the court dismissing the remaining federal law claim with prejudice, and municipal and state law claims without prejudice, and providing plaintiff with the opportunity to renew them in state court.

The Instant Action before the Court

On April 28, 2016, plaintiff commenced the current action where she raised the identical State and City HRL claims that she had raised in the federal action; namely, that Etienne retaliated against her for complaining about and/or refusing to engage in Etienne's demands that she discriminate against teachers because of their age, in violation of Executive Law § 296 (7) and Administrative Code of the City of New York § 8-107 (7) which make it an unlawful discriminatory practice for an employer to discriminate against an individual because she has opposed a discriminatory practice of her employer. In her state complaint, plaintiff again sets forth the panoply of retaliatory acts that Etienne allegedly directly or indirectly caused.^[FN8] She summarizes that "Etienne, in retaliation for plaintiff's complaint regarding age discrimination against teachers around the age of 60, abused her authority in order to harass and unduly burden plaintiff and negatively impact her career" (state complaint ¶ 46). Plaintiff claims that as a result of defendant's retaliatory conduct, she suffered emotional distress and loss of employment and income.{**59 Misc 3d at 1036}

Defendant Etienne again moved to dismiss on the grounds that plaintiff failed to comply with the notice of claim provisions required by Education Law § 3813 and because her "alleged constructive discharge," which culminated in her tendering a resignation letter on May 12, 2012, was barred by the statute of limitations. Defendant also moved to dismiss because Collins' "one singular" timely allegation against Etienne—that she gave Collins a negative recommendation to unidentified prospective employers during the 2012-2013 school year—failed to state a cause of action for retaliation under the law.

Plaintiff countered that defendant is collaterally estopped from making these arguments since the standards of review under CPLR 3211 (a) (7) and Federal Rules of Civil Procedure rule 12 (b) (6) are essentially the same. She argued that the federal court had already addressed these issues and denied the motion to dismiss, ruling (1) that a notice of claim was not required in an action against a principal, (2) that the three year statute of limitations applied, and (3) that Collins had engaged in protected activity recognized by the State and City HRLs by refusing to participate in Etienne's alleged discriminatory practices against older teachers. Plaintiff specifically pointed to the federal court's finding that plaintiff had stated a claim against Etienne for retaliation under the RHA since she had sufficiently pleaded both an adverse action and causality—only six months had passed between her engaging in the protected activity of complaining to Etienne about her treatment of minority and disabled students and her retaliatory assignment to the ATR in the summer of 2012.

Plaintiff also argues that she adequately stated a cause of action for retaliation, since the federal court found that Etienne had "orchestrated a series of adverse actions," the first of which was [*7]Collins' placement in the ATR in the summer of 2012. As this act fell within three months of plaintiff's informing Etienne in May 2012 that she refused to discriminate against older teachers, plaintiff contends that she pleaded temporal proximity causally linking her protected conduct and Etienne's retaliatory acts. Of greater import, plaintiff contends that she pleaded facts indicating direct retaliatory animus on the part of Etienne, including Etienne's statement that "she wants her [Collins] out" and an admission by an HR director in defendant's district that plaintiff received a "bogus assignment" just because a colleague of hers was out to get her.{**59 Misc 3d at 1037}

Collateral Estoppel and Law of the Case

The doctrine of collateral estoppel precludes a party from relitigating in a subsequent proceeding an issue raised and decided against that party in a prior proceeding "where the party to be precluded had a full and fair opportunity to contest the prior determination." (Weiss v Manfredi, 83 NY2d 974, 976 [1994]; Kaufman v Eli Lilly & Co., 65 NY2d 449, 455-456 [1985]; see Johnson v Watkins, 101 F3d 792, 794-795 [2d Cir 1996]; Sinni v Forest Hills Hosp., 2014 NY Slip Op 32186[U] [Sup Ct, Queens County 2014].) The policy underlying its application is the avoidance of relitigating decided issues and the possibility of an inconsistent result. (Buechel v Bain, 97 NY2d 295, 304 [2001]; D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990].) In order for this doctrine to apply there must be (1) an identity of issue that was necessarily decided in the prior action and is decisive of the present action, and (2) a full and fair opportunity to contest the issue in the prior action now said to be controlling. (Buechel, 97 NY2d at 303-304; see In re Hyman, 502 F3d 61, 65 [2d Cir 2007], citing Kaufman, 65 NY2d at 455-456; Linden Airport Mgt. Corp. v New York City Economic. Dev. Corp., 2011 WL 2226625, 2011 US Dist LEXIS 60283 [SD NY, June 1, 2011, No. 08 Civ. 3810(RJS)].) While the party seeking to invoke collateral estoppel has the burden of demonstrating the identity of issues, the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue. (Evans v Ottimo, 469 F3d 278, 281-282 [2d Cir 2006], citing Kaufman, 65 NY2d at 456.)

An issue need not have been "actually litigated" in that evidence was offered on the point in order to satisfy the identity of issues requirement. (Linden, 2011 WL 2226625, *6, 2011 US Dist LEXIS 60283, *17; see Schuh v Druckman & Sinel, L.L.P., 602 F Supp 2d 454, 468 [SD NY 2009].) Rather, the issue must have been properly raised by the pleadings or otherwise placed in issue and actually determined in the prior proceeding. (Evans, 469 F3d at 283, citing D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 666-667 [1990].) Collateral estoppel applies to a prior court's determination, on a motion to dismiss, that a complaint adequately states a cause of action, where the causes of action in the two cases were largely identical in substance. (Westchester County Correction Officers Benevolent Assn., Inc. v County of Westchester, 65 AD3d 1226 [2d Dept 2009]; see generally Franklin Dev. Co., Inc. v Atlantic Mut. Ins.{**59 Misc 3d at 1038} Co., 60 AD3d 897 [2d Dept 2009].) An issue can also be actually litigated even if a determination was made without cross-examination or the opportunity to call witnesses and only on the papers. (Matter of Dunn, 24 NY3d 699 [2015].) On the other hand, an issue is not actually litigated if, for example, "there has been a default, a confession of liability," or failure to place a matter in issue by proper pleading. (Kaufman, 65 NY2d at 456-457.)

[1] Plaintiff has "actually litigated" the issue of whether she engaged in protected activity under the State and City HRLs by refusing to comply with Etienne's directives that she discriminate against aged teachers. Both parties engaged in extensive motion practice and submitted briefs to the federal court for its consideration of this issue. The complaints in both the federal and state actions are virtually identical on this issue and the standard for assessing a motion to dismiss under both Federal Rules of Civil Procedure rule 12 (b) (6) and CPLR 3211 (a) (7) are virtually the same. (See Blackrock Allocation Target Shares: Series S. Portfolio v Wells Fargo Bank, N.A., 247 F Supp 3d 377, 392 [SD NY 2017]; Egiazaryan v Zalmayev, 2013 WL 6486258, 2013 US Dist LEXIS 173459 [SD NY, Dec. 11, 2013, 11 Civ 2670(PKC)(GWG)]; Utility Metal Research, Inc. v Generac Power Sys., 2004 WL 2613993, *3 n 1, 2004 US Dist LEXIS 23314, *8 n 1 [ED NY, Nov. 18, 2004, No. 02-CV-6205 (FB) (RML)] [dismissal under CPLR 3211 (a) (7) rather than under rule 12 (b) (6) is "a distinction without a difference"]; Cabrera v City of New York, 2014 NY Slip Op 30533[U] [Sup Ct, Bronx County 2014].) As such, plaintiff has met its burden of demonstrating that there was an identity of issues in the two actions.

Defendant, who opposes the application of collateral estoppel, has not met its burden of establishing the absence of a full and fair opportunity to litigate these issues. This prong requires that the adverse party must have had the right to appeal that determination. (Johnson v Watkins, 101 F3d 792, 795 [2d Cir 1996]; Aviall, Inc. v Ryder Sys., Inc., 110 F3d 892, 897 [2d Cir 1997] [applying New York law].) Since the doctrine of collateral estoppel "places termination of litigation ahead of the correct result," its application has been "narrowly tailored" to ensure that the issue being estopped from further litigation was "thoroughly explored" in the prior proceeding and that the judgment has some indicia of "correctness" (Watkins, 101 F3d at 795, citing Gelb v Royal Globe Ins. Co., 798 F2d 38, 44 [2d{**59 Misc 3d at 1039} Cir 1986]). Although the failure to appeal does not prevent preclusion, the inability to obtain appellate review, or the lack of such review once an appeal is taken, does prevent preclusion. (Gelb, 798 F2d at 44.) Here there is no evidence that defendant undertook to appeal the federal court's January 11, 2016, decision within 30 days, which occurred before the federal court, upon the request of plaintiff, ultimately dismissed the one remaining federal claim under the RHA with prejudice, and the state and city claims without prejudice.

The Supreme Court has enunciated at least two conditions for a federal court's decision to have a preclusive effect upon a state court. The issue that the federal court decided must be the same as the one presented in state court and the party to be bound must have been a party to the federal suit. (Wyly v Weiss, 697 F3d 131, 141 [2d Cir 2012], citing Smith v Bayer Corp., 564 US 299, 307 [2011], and Taylor v Sturgell, 553 US 880, 892 [2008]). Where a federal court refuses to exercise supplemental jurisdiction over a plaintiff's state law claims, collateral estoppel may still bar those claims in state court provided that "the federal court decided issues identical to those raised by the plaintiff's state claims" (Milione v City Univ. of N.Y., 153 AD3d 807, 808-809 [2d Dept 2017]) or where the federal court determines "fact[s] or mixed questions of law and fact." (Forrester v Corizon Health, Inc., 278 F Supp 3d 618, 629 [ED NY 2017].) In Simmons-Grant v Quinn Emanuel Urquhart & Sullivan, LLP (116 AD3d 134, 139-140 [1st Dept 2014], citing Simmons-Grant v Quinn Emanuel Urquhart & Sullivan, LLP, 915 F Supp 3d 498, 507 [SD NY 2013]), the state court applied collateral estoppel to bar plaintiff from "relitigating" the issue of whether an immediate reassignment was possible, since the federal court had already dismissed her title VII claim after finding that the defendant had not subjected [*9]the plaintiff to an intolerable work condition or failed to reassign her in retaliation for her engaging in protected activity. Collateral estoppel applied since the issue of defendant's purported failure to reassign comprised the entirety of plaintiff's City HRL claim. (See Hudson v Merrill Lynch & Co., Inc., 138 AD3d 511, 515 [1st Dept 2016] [federal court dismissed plaintiff's gender discrimination claims under title VII and the NYSHRL, after making factual findings that there was no evidence of gender discrimination and that plaintiff was laid off based upon poor performance, and declined to exercise supplemental jurisdiction over the City HRL claim. The state court applied{**59 Misc 3d at 1040} collateral estoppel to the City HRL claim of gender discrimination after finding that plaintiff was precluded from "relitigating . . . discrete factual issues"]; Ji Sun Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18 [1st Dept 2014].)

Where a federal court resolves an essential element of a claim, rather than actually decides the claim, such resolution may still be used by a state court to preclude litigation of the claim. (Cf. Wyly v Weiss [where federal court resolves one element of a malpractice claim—namely whether counsel's performance was deficient—and finds that said performance was not deficient, defendants can show that issue preclusion prevents a future court from finding that this element was satisfied, and that therefore, any malpractice claim under that theory is deficient and precluded]; Milione v City Univ. of N.Y., 153 AD3d 807 [2d Dept 2017] [federal district court's determination on summary judgment that defendants had legitimate nondiscriminatory reasons for their employment actions that were not motivated by retaliatory animus under title VII dispositive of state court claims under the State and City HRLs]; see Forrester v Corizon Health, Inc., 278 F Supp 3d 618, 629 [ED NY 2017] [plaintiff may not relitigate mixed questions of law and fact in state court on City HRL claim, since issue of whether her demotion, suspension and termination were motivated by retaliatory animus were already raised and litigated and were necessary to federal court's decision on Americans with Disabilities Act (ADA) claim].)

Here, the federal court found that both the State and City HRLs prohibit retaliation against individuals who oppose any discriminatory practice that the statute makes illegal. (Collins, 156 F Supp 3d 448, citing Executive Law § 296 [7], and City HRL § 8-107 [7].) The federal court also noted that both laws prohibit employers from discriminating on the basis of age. (Executive Law § 296 [1]; City HRL § 8-107 [1].) The federal court then found that "[b]y openly refusing to participate in . . . Etienne's alleged discriminatory practices against teachers over the age of sixty, Collins had engaged in an activity" covered by both the State and City HRLs. (156 F Supp 3d at 461.) Collins set forth the elements of retaliation because she asserted that she openly expressed to Etienne her opposition to Etienne's requests that she change her satisfactory observations of the older teachers to unsatisfactory and that Etienne thus knew of her protected activity. (Id.) Based upon these{**59 Misc 3d at 1041} findings, the federal court reached the inexorable conclusion that Collins engaged in a protected activity under both the State and City HRLs. Since the federal court ruled upon the precise facts and elements of a retaliation case raised in the instant proceeding, defendant is collaterally estopped from attacking these factual findings or the federal court's ruling that Collins engaged in protected activity—opposing age discrimination against older teachers. (See Forrester v Corizon Health, Inc., 278 F Supp 3d at 629.)

Collateral estoppel also applies to so much of the federal court's finding that defendant Etienne exhibited "retaliatory animus" and subjected Collins to an adverse employment action. (156 F Supp 3d at 459.) The federal court first found that the elements necessary to plead a [*10]retaliation case under the ADEA and the State and City HRLs are the same. (156 F Supp 3d at 460, citing Sotomayor v City of New York, 862 F Supp 2d 226, 261-262 [ED NY 2012].) However, the federal court then dismissed the ADEA and other federal claims, and proceeded to evaluate Collins' retaliation case under section 504 of the RHA.^[FN9] The court ultimately found that although it was a "close case," due to Collins' amorphous allegations of protected activity under the RHA, Collins had pleaded sufficient facts for a retaliation claim under the RHA. The federal court found that Collins had been subjected to a retaliatory action—assignment to the ATR (discriminatory treatment)—and had alleged retaliatory animus under the RHA, namely Etienne's statement, "I want her out" (complaint ¶ 55), and the District 79 human resources representative's statement that District 79 should hire Collins "because a colleague of [hers] was out to get [Collins] due to no fault of her own." (Complaint ¶ 65.)

The elements of a retaliation case are the same under section 504 of the RHA and the Americans with Disabilities Act and the State and City HRLs.^[FN10] (Sutherland v New York State Dept. of Law, 216 F3d 1073 [2d Cir 2000] [table; text at 2000 {**59 Misc 3d at 1042}WL 730413, *3, 2000 US App LEXIS 1248, *7 (2d Cir 2000)]; Sacay v Research Found. of City Univ. of N.Y., 193 F Supp 2d 611, 630 [ED NY 2002] ["New York courts apply the same analysis for retaliation claims under state laws as under federal law"]; see Weissman v Dawn Joy Fashions, Inc., 214 F3d 224, 234 [2d Cir 2000] [the anti-retaliation provisions of the state (Executive Law § 296 [7]) and city (Administrative Code § 8-107 [7]) HRLs are "substantially similar"to the ADA provisions]; see Hendler v Intelecom USA, Inc., 963 F Supp 200, 211 [ED NY 1997].) To state a prima facie case of retaliation under either the ADA or the RHA, a plaintiff must demonstrate that "(1) he engaged in an activity protected by the [Act]; (2) the employer was aware of this activity; (3) the employer took adverse employment action against him; and (4) a causal connection exists between the alleged adverse action and the protected activity." (Treglia v Town of Manlius, 313 F3d 713, 719 [2d Cir 2002] [citation omitted]; Muller v Costello, 187 F3d 298, 311 [2d Cir 1999]; see Miller v McHugh, 814 F Supp 2d 299, 313 [SD NY 2011]; Smith v State Univ. of N.Y., 2003 WL 1937208, 2003 US Dist LEXIS 6835 [ND NY, Apr. 23, 2003, 1:00-CV-1454(FJS/RFT)].)

Given the above, collateral estoppel applies to the federal court's findings that Collins suffered an adverse employment action (placement in the ATR) as a result of her opposing alleged discriminatory actions against disabled students (protected activity). However, the federal court did not rule upon, and collateral estoppel does not apply to the issue of whether [*11]there was a causal connection between Collins having engaged in the protected activity of opposing age discrimination against older teachers and the retaliatory action—placement in the ATR. In fact, the federal court specifically noted that while the retaliatory acts were allegedly the same with respect to Collins' opposition to Etienne's discrimination against both disabled students and aged teachers, the protected activity in each claim was different and, "despite some overlap," may not have arisen from the same common nucleus of operative facts. (See Sacay v Research Found. of City Univ. of N.Y., 193 F Supp 2d 611, 636 [ED NY 2002] [federal court will exercise supplemental jurisdiction over state law retaliation claims but not over the state law discrimination claims which, unlike state retaliation claims, are not "part of the same case or controversy" as the sole remaining federal claims].)

{**59 Misc 3d at 1043}Collateral estoppel also does not apply to the federal court's ruling that a notice of claim need not be filed against a principal of a school or that the three year statute of limitations applied since these are strictly legal findings. However, the federal court's rulings on these issues constitute the law of the case and will be followed by this court.

Law of the Case

In both state and federal court, a judicial decision concerning an issue of law made at one stage of the litigation becomes the "law of the case," i.e., "binding precedent, to be followed in subsequent stages of the same litigation." (Firestone v Berrios, 42 F Supp 3d 403, 411 [ED NY 2013], citing Scottish Air Intl., Inc. v British Caledonian Group, PLC., 152 FRD 18, 24 [SD NY 1993]; Leber-Krebs, Inc. v Capitol Records, 1985 WL 326, *3, 1985 US Dist LEXIS 22325, *10 [SD NY, Feb. 25, 1985, No. 83 Civ. 1340 (GLG)].) Despite colloquial meanings given to this doctrine over the years, it is now recognized as a "concept regulating pre-judgment rulings made by courts of coordinate jurisdiction in a single litigation." (People v Evans, 94 NY2d 499, 503 [2000]; 10-5011 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 5011.09.) As compared to res judicata (claim preclusion) and collateral estoppel (issue preclusion), which generally deal with preclusion after judgment, the law of the case addresses the potentially preclusive effect of judicial decisions made in the course of single litigation "before final judgment." (People v Evans, 94 NY2d at 502 [emphasis omitted], citing Matter of McGrath v Gold, 36 NY2d 406, 413 [1975]; see 18 Wright, Miller & Cooper, Federal Practice & Procedure § 4478 at 788 [1981].) The underpinning of this doctrine is to maintain consistency, foster respect for decisions of coordinate courts, and protect against repeated reconsideration of settled issues. (Devilla v Schriver, 245 F3d 192, 197 [2d Cir 2001]; Leber-Krebs, Inc., 1985 WL 326, *3, 1985 US Dist LEXIS 22325, *11.)

Application of the law of the case is discretionary. (Brentwood Pain & Rehabilitation Servs., P.C. v Allstate Ins. Co., 508 F Supp 2d 278, 288 [SD NY 2007].) Absent "cogent" or "compelling reasons, a court should continue to adhere to previously made decisions in the same case. (United States v Uccio, 940 F2d 753, 758 [2d Cir 1991]; Bedasie v Mr. Z Towing Inc., 2017 WL 1135727, *15, 2017 US Dist LEXIS 43973, *44 [ED NY, Mar. 24, 2017, 13 CV 5453 (CLP)].) Compelling or cogent reasons include an "intervening change of controlling law, the availability of new evidence or the need to correct a clear error{**59 Misc 3d at 1044} or prevent manifest injustice." (DiLaura v Power Auth. of State of N.Y., 982 F2d 73, 76 [2d Cir 1992]; Bedasie.)

It is well settled that the law of the case doctrine applies when a state court case is removed to federal court. (Firestone v Berrios, 42 F Supp 3d at 412; Torah Soft Ltd. v Drosnin, 224 F Supp 2d 704, 710 [SD NY 2002].) This is because orders entered by state court are treated as though they had been entered by the federal court prior to removal. (Nasso v Seagal, 263 F Supp 2d 596, 608 [ED NY 2003].) In the apparently one reported case, the converse is also true. In Hess v Wojcik-Hess (86 AD3d 847 [3d Dept 2011]), the Third Department found that the State Supreme Court did not err in deferring to and relying on the prior ruling of Federal District Court denying defendant's motion to dismiss plaintiff's claim as being preempted under ERISA. The state court found that by denying defendant's motion to dismiss, the federal court necessarily rejected her federal law counterclaim that ERISA preempted plaintiff's state law claims. Since the defendant had the opportunity to fully address the preemption argument in federal court, she was bound by the law of the case established on that issue in the federal court's decision. (86 AD3d at 848-849.)

[2] Similarly, here defendant had a full and fair opportunity to address the issue in federal court as to whether Collins was required to file a notice of claim pursuant to Education Law § 3813 against principal Etienne. Judge Caproni engaged in a thorough analysis of precedent in finding that a principal is not deemed to be an officer of a school district and, therefore, a notice of claim is not required as a condition precedent to filing a non-tort action against a principal individually (Collins, 156 F Supp 3d at 460). As this identical issue is raised again herein, this court adheres to Judge Caproni's finding.

Furthermore, both the plain language of the statute and ample precedent support the federal court's decision. Education Law § 3813 (1) prohibits the maintenance of an action or special proceeding for "any cause whatever" against "any school district, board of education, . . . or any officer of a school district, board of education, . . . or school" unless a written notice of claim is filed within three months after the accrual of such claim. Education Law § 2 (13) defines the term "school officer" as

"a . . . trustee; a member of a board of education or other body in control of the schools by whatever name known in a . . . city school district; a superintendent {**59 Misc 3d at 1045}of schools; a district superintendent; a supervisor of attendance or attendance officer; or other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system."

In addition to Judge Caproni's finding, a number of other federal district courts have found that principals and other school administrators and or employees are not officers of a board of education within the meaning of section 2 (13). (Sotomayor v City of New York, 862 F Supp 2d 226, 249 [ED NY 2012]; Benedith v Malverne Union Free Sch. Dist., 38 F Supp 3d 286, 312 [ED NY 2014]; Dimitracopoulos v City of New York, 26 F Supp 3d 200, 210 [ED NY 2014]; Carlson v Geneva City Sch. Dist., 679 F Supp 2d 355, 367 [WD NY 2010]; Fierro v City of New York, 591 F Supp 2d 431, 447 [SD NY 2008]; Spencer v City of New York, 2007 WL 1573871, 2007 US Dist LEXIS 39101 [SD NY, May 30, 2007, No. 06 Civ. 2852(KMW)]; Richards v Calvet, 2005 WL 743251, 2005 US Dist LEXIS 5365 [SD NY, Mar. 31, 2005, No. 99 Civ.12172RJHMHD] [notice of claim under section 3813 (1) was not required before suing school principal, who was not a school officer within the meaning of section 3813 (1)].) In Carlson (679 F Supp 2d at 367), the court reasoned that although a principal is the administrative head of a particular school, such position is not a district-wide office and that the principal therefore was not an officer of a board of education. In further support of its finding the court pointed to the statutory text of section 3813 (2) which indicates that "[n]otwithstanding anything to the contrary hereinbefore contained in this section, no action or special proceeding founded upon tort shall be [*12]prosecuted or maintained against any of the parties named in this section or against any teacher or member of the supervisory or administrative staff or employee . . . ." (Emphasis added.) The Carlson court found that such wording indicated that administrators and teachers were not included within the scope of section 3813 (1). (See also Benedith v Malverne Union Free Sch. Dist., 38 F Supp 3d at 313.) Accordingly, plaintiff was not required to file a notice of claim as a condition precedent to filing her action against principal Indart-Etienne individually, and her case may not be dismissed on the basis that she failed to file a notice of claim.

Similarly, since principal Etienne is not an officer of a school board or a district, the one year statute of limitations contained{**59 Misc 3d at 1046} in Education Law § 3813 (2-b) for actions or special proceedings against "any entity specified in subdivision one" is inapplicable. Rather, State and City HRL claims against principals are governed by the three year statute of limitations prescribed by CPLR 214 (2) which is generally applicable to Human Rights Law violations. (Koerner v State of N.Y., Pilgrim Psychiatric Ctr, 62 NY2d 442, 446 [1984]; Stembridge v New York City Dept. of Educ., 88 AD3d 611 [1st Dept 2011]; see Herling v New York City Dept. of Educ., 2014 WL 1621966, 2014 US Dist LEXIS 56442 [ED NY, Apr. 23, 2014, No. 13-cv-5287]; Sotomayor v City of New York, 862 F Supp 2d 226 [ED NY 2012]; Rosenberg v City of New York, 2011 WL 4592803, 2011 US Dist LEXIS 112818 [ED NY, Sept. 30, 2011, No. 09-CV-4016 (CBA)(LB)]; Lawson v New York City Bd. of Educ., 2011 WL 5346091, 2011 US Dist LEXIS 127789 [SD NY, Aug. 30 2011, No. 09 Civ. 1335(JSR)(HBP)]; Estatico v Department of Educ. of City of N.Y., 2014 NY Slip Op 33611[U] [Sup Ct, NY County 2014]; Goldman v City of New York, Sup Ct, NY County, index No. 151073/2014 [2014].)

Collins states a cause of action under both the State and City HRLs.

The function of a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." (Ryder Energy Distrib. Corp. v Merrill Lynch Commodities Inc., 748 F2d 774, 779 [2d Cir 1984].) On a motion to dismiss pursuant to CPLR 3211, the court must accept all the facts alleged in the complaint submitted by the plaintiff as true, accord the plaintiff "the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory." (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; see Carlson v American Intl. Group, Inc., 30 NY3d 288, 297-298 [2017]; Matter of Oddone v Suffolk County Police Dept., 96 AD3d 758, 760 [2d Dept 2012].) Whether the plaintiff can ultimately establish her allegations at trial is not part of the "calculus in determining a motion to dismiss." (Carlson at 298, citing EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; cf. Cabrera v City of New York, 2014 NY Slip Op 30533[U], *2 [Sup Ct, Bronx County 2014] [a complaint may not be dismissed unless it appears "beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief"].)

{**59 Misc 3d at 1047}As set forth previously, New York courts apply the same analysis for retaliation cases under the State and City HRLs as federal courts apply under the ADA.^[FN11] (See Fleury v New York [*13]City Tr. Auth., 160 Fed Appx 34 [2d Cir 2005]; Treglia v Town of Manlius, 313 F3d 713, 719 [2d Cir 2002]; Forrest v Jewish Guild for the Blind, 3 NY3d 295, 312-313 [2004]; Matter of New York State Off. of Mental Retardation & Dev. Disabilities [Staten Is. Dev. Ctr.] v New York State Div. of Human Rights, 164 AD2d 208, 210 [3d Dept 1990].) In order to state a prima facie case of retaliation under the ADA, as well as the State and City HRLs,^[FN12] a plaintiff must show that (1) she engaged in a "protected activity," (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action. (Forrest v Jewish Guild for the Blind, 3 NY3d at 312-313; Langton v Warwick Val. Cent. Sch. Dist., 144 AD3d 867, 868-869 [2d Dept 2016]; see also Treglia v Town of Manlius, 313 F3d 713, 719 [2d Cir 2002]; Muller v Costello, 187 F3d 298, 311 [2d Cir 1999]; Miller v McHugh, 814 F Supp 2d 299, 313 [SD NY 2011]; Smith v State Univ. of N.Y., 2003 WL 1937208, 2003 US Dist LEXIS 6835 [ND NY, Apr. 23, 2003, 1:00-CV-1454(FJS/RFT)]; Sacay v Research Found. of City Univ. of N.Y., 193 F Supp 2d 611 [ED NY 2002]; Matter of New York State Off. of Mental Retardation & Dev. Disabilities [Staten Is. Dev. Ctr.].) "Protected activity" is defined as conduct "opposing or complaining about unlawful discrimination." (Forrest, 3 NY3d at 314; see Emmer v Trustees of Columbia Univ. in the City of N.Y., 2014 NY Slip Op 31200[U], *17 [Sup Ct, NY County 2014] [an action "taken to protest or oppose statutorily prohibited discrimination"].)

[3] For the reasons stated above, collateral estoppel applies to the federal court's ruling that Collins had sufficiently pleaded that Etienne made discriminatory statements against{**59 Misc 3d at 1048} older teachers and repeatedly directed Collins to change her evaluations of the older teachers to unsatisfactory, increase the frequency of her classroom observations of the older teachers, and record them on her iPhone. (Collins, 156 F Supp 3d at 452-453.) Collateral estoppel also applies to the federal court's findings that Collins refused to follow Etienne's directions and "openly refus[ed] to participate in . . . Etienne's alleged discriminatory practices against teachers over the age of 60, . . . [and that] Collins adequately [pleaded] that . . . Etienne knew Collins was engaging in that protected activity because Collins assert[ed in her complaint] that she openly expressed her opposition to . . . Etienne." (Id. at 461.) These factual findings inexorably lead to the conclusion that Collins has sufficiently pleaded the first two prongs of a cause of action for retaliation under the both the State and City HRLs—that she engaged in the protected activity of opposing age discrimination and that Etienne was aware Etienne engaged in age discrimination under the State and City HRLs.^[FN13]

As to the third prong of a retaliation case, the federal court found, within the context of Collins' ADA claim, that Collins suffered an adverse employment action (placement in the ATR) as a result of her opposing alleged discriminatory actions against disabled students (protected activity). Since, as set forth above, the elements of a retaliation case are the same under section 504 and the State and City HRLs, collateral estoppel also applies to the federal court's ruling that placement in the ATR constituted an adverse employment action.

An adverse employment action typically means a "materially adverse change" in the terms and conditions of employment. (Galabya v New York City Bd. of Educ., 202 F3d 636, 640 [2d Cir 2000]; Richardson v New York State Dept. of Corr. Servs., 180 F3d 426, 446 [2d Cir 1999].) To be "materially adverse," the change in working conditions must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." (Galabya, 202 F3d at 640.) It can be evidenced by termination of employment, a demotion with a less distinguished{**59 Misc 3d at 1049} title or decrease in wage or salary, or significantly diminished material responsibilities, etc. (Galabya [denial of available transfer or delay in reassignment which harmed plaintiff's career could qualify as material adverse change]; Schiano v Quality Payroll Sys., Inc., 445 F3d at 609; see Wanamaker v Columbian Rope Co., 108 F3d 462, 466 [2d Cir 1997]; Ferrante v American Lung Assn., 90 NY2d 623 [1997].) A transfer, with a revised job description, so that the employee is no longer supervising other employees, as was the case under an old job, can constitute an adverse employment action. (Sacay v Research Found. of City Univ. of N.Y., 193 F Supp 2d 611, 634 [ED NY 2002].) Poor recommendations, refusals to furnish recommendations, or threats to future employers may be actionable if done in direct retaliation to a former employee's opposition to an unlawful employment practice. (Beckett v Prudential Ins. Co. of Am., 893 F Supp 234, 240 [SD NY 1995].) Negative employment evaluation letters may be considered adverse if they trigger other negative consequences to the terms and conditions of a plaintiff's employment (Treglia v Town of Manlius, 313 F3d 713, 720 [2d Cir 2002]; Dimitracopoulos v City of New York, 26 F Supp 3d at 214), such as a diminution of wages or demotion or change in job title (Dillon v Morano, 497 F3d 247, 251 [2d Cir 2007]; Sotomayor v City of New York, 862 F Supp 2d at 254). On the other hand, reprimands, threats of disciplinary action, demeaning comments and routine ridicule do not, without more, constitute an adverse employment action for purposes of a retaliation claim. (Rivers v New York City Hous. Auth., 176 F Supp 3d 229, 251-252 [ED NY 2016]; Murray v Town of N. Hempstead, 853 F Supp 2d 247, 266 [ED NY 2012].) Verbal abuse may at times be sufficiently severe and chronic to constitute an adverse employment action if coupled with other behavior. (Brennan v City of White Plains, 67 F Supp 2d 362, 374 [SD NY 1999].)

The definition of adverse employment action under the City HRL is even broader. (See Gorokhovsky v New York City Hous. Auth., 552 Fed Appx 100, 102 [2d Cir 2014]; Boonmalert v City of New York, 2017 WL 1378274, 2017 US Dist LEXIS 56409 [SD NY, Apr. 12, 2017, 16 Civ. 4171 (KMW) (KNF)].) Under the City HRL, the employer's conduct need not be materially adverse to the plaintiff, but merely "reasonably likely to deter a person from engaging [*14]in protected activity." (Administrative Code § 8-107 [7]; Fincher v Depository Trust & Clearing Corp., 604 F3d 712, 723 [2d Cir 2010]; Kolja v R.A. Cohen & Assoc.,{**59 Misc 3d at 1050} Inc., 2017 NY Slip Op 30873[U], *22 [Sup Ct, NY County 2017] [to prevail on retaliation claim under City HRL, a plaintiff need only show that he took an action to oppose his employer's discrimination and that the employer subsequently engaged in conduct that was "reasonably likely to deter a person from engaging in such action"]; Sotomayor, 862 F Supp 2d at 258; see Williams v New York City Hous. Auth., 61 AD3d 62 [1st Dept 2009] [being assigned duties outside or beneath one's normal work tasks may deter someone from making a complaint]; Kolja v R.A. Cohen & Assoc., Inc., 2017 NY Slip Op 30873[U] [Sup Ct, NY County 2017] [retaliatory acts of threatening plaintiff with termination, change in job responsibilities and work schedule, and issuing warning letter were materially adverse].)

The aforementioned confirms that the federal court properly found that Collins suffered a materially adverse change in the terms and conditions of her employment by being placed in the ATR. The complaint alleges that the DOE did not allow plaintiff to revert to her former position as a tenured "master teacher" within District 28 and failed to give her a permanent position but placed her in the ATR where she acted as a substitute teacher on an as needed basis, at a lower salary. (State complaint ¶¶ 34, 35.) The ATR pool is usually reserved for teachers who have been excessed from failed or closed schools or who have been laid off. Being in the ATR stigmatized plaintiff from receiving permanent job offers since teachers in the ATRs "are generally viewed negatively as poor teachers" who had come from failing schools (state complaint ¶ 39). Therefore, Collins established that under this revised job title, she no longer supervised other employees as she did as assistant principal, and thus had diminished job duties and status.

Plaintiff also avers that during a meeting in September 2012, Etienne made "false, negative and disparaging remarks about her" to former colleagues and "believes" that Etienne gave her an unjustifiably unfavorable job reference. (State complaint ¶¶ 2-63.) While this singular instance, without more, does not constitute a materially adverse action, Collins alleges that during the 2012-2013 school year, she constantly interviewed for a permanent position but never received any job offers, which Collins attributes to Etienne giving her an "unjustifiable poor reference" (state complaint ¶ 38). Thus, were Collins able to prove at trial that this one demeaning remark was part of Etienne's attempt to blacklist her, it could be actionable. In the{**59 Misc 3d at 1051} post-employment context, impermissible adverse actions may be found where, for example, an employer "blacklists" or otherwise speaks ill of a former employee with retaliatory motive, or restricts an ex-employee's access to former coworkers in such a way as to hamstring future job prospects. (Thompson v Morris Hgts. Health Ctr., 2012 WL 1145964, 2012 US Dist LEXIS 49165 [SD NY, Apr. 6, 2012, No. 09 Civ. 7239(PAE)(THK)]; see e.g. Silver v Mohasco Corp., 602 F2d 1083, 1090 [2d Cir 1979].)

However, collateral estoppel cannot apply to the fourth prong: whether a causal connection exists between the alleged adverse actions and Collins' protected activity of opposing age discrimination against older teachers. The federal court specifically noted that while the retaliatory acts were allegedly the same with respect to Collins' opposition to Etienne's discrimination against both disabled students and aged teachers, the protected activity in each claim was different and, "despite some overlap," may not have arisen from the same "common nucleus of operative fact[s]." (156 F Supp 3d at 461.)

To adequately plead a causal connection, the "allegations must be sufficient to support the inference that the [protected activity] played a substantial part in the adverse action." (Davis v Goord, 320 F3d 346, 354 [2d Cir 2003] [internal quotation marks omitted]; Smith v City of New York, 2016 WL 4574924, 2016 US Dist LEXIS 118281 [SD NY, Sept. 1, 2016, No. 15-cv-4493 (RJS)].) A "plaintiff's pleading need not clearly establish that the defendant harbored retaliatory intent. It is sufficient to allege facts which could reasonably support an inference to that effect." (Posr v Court Officer Shield No. 207, 180 F3d 409, 418 [2d Cir 1999]; Smith v City of New York, 2016 WL 4574924, *10, 2016 US Dist LEXIS 118281, *35.) A plaintiff can prove a "causal connection between the protected activity and the adverse employment action" either directly through evidence of retaliatory animus or disparate treatment (Hicks v Baines, 593 F3d 159, 164, 170 [2d Cir 2010] [defendants told plaintiffs they would "retaliate against them"]; Gordon v New York City Bd. of Educ., 232 F3d 111, 117 [2d Cir 2000]; Messer v Board of Educ. of City of N.Y., 2007 WL 136027, 2007 US Dist LEXIS 3055 [ED NY, Jan. 16, 2007, No. 01-CV-6129 (JFB)(CLP)] [need more than "stray" comments by supervisor to find discriminatory motive]), or indirectly by showing "that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence." (Gordon, 232 F3d at 117; Cifra{**59 Misc 3d at 1052} v General Elec. Co., 252 F3d 205, 217 [2d Cir 2001]; Messer v Board of Educ. of City of N.Y.; Lambert v Macy's E., Inc., 34 Misc 3d 1228[A], 2010 NY Slip Op 52434[U], *17 [Sup Ct, Kings County 2010].)

Where a plaintiff cannot plausibly allege disparate treatment or retaliatory animus, he must rely on temporal proximity to plead causation. (Petyan v New York City Law Dept., 2015 WL 1855961, 2015 US Dist LEXIS 53380 [SD NY, Apr. 23, 2015, No. 14-CV-1434 (GBD)(JLC)].) The Second Circuit has "not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action" (Summa v Hofstra Univ., 708 F3d 115, 128 [2d Cir 2013]). However, "the longer the interval between the protected activity and the adverse employment action, the more attenuated the evidence of the requisite causation." (Petyan, 2015 WL 1855961, *14, 2015 US Dist LEXIS 53380, *40.) The Second Circuit has thus "drawn different inferences about the causal connection between protected activities and adverse employment actions based upon the facts regarding temporal proximity that exist in a particular case." (Jackson v New York State Off. of Mental Health, 2012 WL 3457961, *10-11, 2012 US Dist LEXIS 114531, *30-32 [SD NY, Aug. 13, 2012, No. 11 Civ. 7832 (GBD)(KNF)]; accord Espinal v Goord, 558 F3d 119, 129 [2d Cir 2009]; Petyan v New York City Law Dept., 2015 WL 1855961, *14-15, 2015 US Dist LEXIS 53380, *43-44; see also Cayemittes v City of N.Y. Dept. of Hous. Preserv. & Dev., 2012 WL 406915, *4, 2012 US Dist LEXIS 16438, *15-16 [SD NY, Feb. 9, 2012, No. 10 Civ. 8486 (GBD)(THK)].)

The courts have found up to eight months between the last protected activity and retaliatory action to be close enough in proximity to establish causation. (See Summa v Hofstra Univ., 708 F3d at 128 [seven month gap between filing of lawsuit and decision to terminate employment privileges "not prohibitively remote"]; Gorman-Bakos v Cornell Coop. Extension of Schenectady County, 252 F3d 545, 555 [2d Cir 2001] [five months]; Monsour v New York State Off. for People with Dev. Disabilities, 2017 WL 3972044, 2017 US Dist LEXIS 151059 [ND NY, July 7, 2017, 1:13-CV-0336 (BKS/CFH)] [approximately seven months between plaintiff's protected activity of contacting the NY Times and employer's email which accused him of psychological abuse and his placement on list of staff who were found{**59 Misc 3d at 1053} to have substantiated charges of abuse one month later]; Lyman v City of New York, 2003 WL 22171518, 2003 US Dist LEXIS 16471 [SD NY, Sept. 19, 2003, No. 01 Civ. 3789(RWS)].) In Grant v Bethlehem Steel Corp. (622 F2d 43, 45-46 [2d Cir 1980]), the court found that a lapse of eight months between when the union found out about [*16]plaintiffs' Equal Employment Opportunity Commission (EEOC) complaint and its alleged retaliatory acts against plaintiffs indicated a causal connection. There, the union received notice of the EEOC complaint in November 1975. From July 1976, after plaintiff returned from an eight month job, through March 1977, when the retaliation suit hearings were about to commence, Grant constantly appeared before the union hiring hall and only received three short term referrals. (See also Petyan v New York City Law Dept., 2015 WL 1855961, *14, 2015 US Dist LEXIS 53380, *41 [four months sufficient temporal proximity between protected activity of filing EEOC complaint and the unsatisfactory performance evaluation to raise an inference of retaliation, but 10 month interval between the protected activity and the revocation of plaintiff's compressed time schedule on Mar. 25, 2013, was too attenuated and plaintiff's allegation that in early 2013 he had to start documenting his time in quarter-hour increments was too attenuated as plaintiff failed to state "with even a modicum of specificity when the relevant events occurred"].)

Defendant moves to dismiss on the ground that Collins' "one singular" timely allegation against Etienne—that she gave Collins a negative recommendation to an unidentified prospective employer during the 2012-2013 school year—failed to state a cause of action for retaliation under the law. Defendant thus claims that Collins' placement in the ATR, which both the federal court and this court finds to be a materially adverse action, are not attributable to Etienne.

As set forth previously, the federal court's refusal to dismiss Collins' claim that Etienne caused her to be placed in the ATR and that such action was materially adverse is binding on this court under collateral estoppel. The federal court found that Collins has alleged retaliatory animus—Etienne's statement "I want her out"—within the context of a union meeting about Collins in June 2012, which Collins overheard, and the District 79 HR representative's statement that District 79 should hire Collins "because a colleague of [hers] was out to get [Collins] due to no fault of her own." (156 F Supp 3d at 459.) This court{**59 Misc 3d at 1054} finds only the first comment to be indicative of retaliatory animus. The second comment is too amorphous, constitutes double hearsay, and is too attenuated—as it was made to Collins by the Bronx principal over a year after she was first placed in the ATR—to constitute allegation of retaliatory animus. However, this court finds that Collins' allegation that during a meeting in September 2012 Etienne made "false, negative and disparaging remarks about her" to former colleagues is indicative of retaliatory animus.

Furthermore, there is a sufficient causal connection, as at most four months transpired between the time Collins refused to engage in discriminatory acts against older teachers and her placement in the ATR. In fact, the courts have recognized that the school calendar imposes forced shutdowns, such as semester breaks or summer vacation,^[FN14] which prolong the time in which the employer can even make an adverse employment decision. Therefore the temporal proximity is even closer where the adverse action occurs at the first actual opportunity to retaliate—when school reopens. (See Summa v Hofstra Univ. [sufficient temporal proximity exists where plaintiff complained about events that occurred on last day of fall season, and start of the spring season was the first time that football coaching staff could have retaliated against Summa].) The courts also have recognized that employers may have "waited to exact their [*17]retaliation at an opportune time." (Espinal v Goord, 558 F3d 119, 129 [2d Cir 2009]; Monsour v New York State Off. for People with Dev. Disabilities, 2017 WL 3972044, *9, 2017 US Dist LEXIS 151059, *26.)

Finally, the fact that Collins did not plead that Etienne directly placed her in the ATR does not negate Etienne's involvement in that placement, given the allegation that Etienne "orchestrated, unduly influenced, and/or played a part" in the adverse actions taken against plaintiff (state complaint ¶¶ 46, 66). The law is clear that in order to prove causation a plaintiff need not show that the corporate agents who carried out the adverse action actually knew of the plaintiff's protected activity. (Henry v Wyeth Pharms., Inc., 616 F3d 134, 147-158 [2d Cir 2010]; Gordon, 232 F3d at 117.) First, if a plaintiff seeks to prove causation, indirectly by showing that the protected activity was followed closely by discriminatory treatment, then the issue of actual knowledge by the decision-maker{**59 Misc 3d at 1055} is not even pertinent, other than for defendant to counter plaintiff's evidence of proximity. (Gordon at 117; see Summa v Hofstra Univ., 708 F3d at 127; Alston v New York City Tr. Auth., 14 F Supp 2d 308, 312-313 [SD NY 1998].) Furthermore, to the extent that the decision-maker's knowledge is relevant in establishing causality, that knowledge may be satisfied by demonstrating that "the agent who decides to impose the adverse action but is ignorant of the plaintiff's protected activity acts pursuant to encouragement by a superior (who has knowledge) to disfavor the plaintiff." (Summa at 127 [emphasis omitted], citing Henry, 616 F3d at 148.)

Based upon the allegations in the complaint, a jury could find that Etienne, who was the principal of the Euphrasian Residence, played a role in ensuring that Collins did not revert back to her position as master teacher in District 28 but rather was placed in the ATR. Plaintiff correctly argues that the court may consider adverse employment actions that predate the statute of limitations as background evidence to support the actionable claims. (Jute v Hamilton Sundstrand Corp., 420 F3d 166, 176-178 [2d Cir 2005]; Petrosino v Bell Atl., 385 F3d 210, 220 [2d Cir 2004].) Therefore, "relevant background evidence, such as statements by a decisionmaker or earlier decisions typifying the retaliation involved, may be considered to assess liability on the timely alleged act." (Jute, 420 F3d at 176-177; Petrosino, 385 F3d at 220.) Furthermore, a plaintiff may rely on events prior to a three year statute of limitations to provide background evidence of defendants' unlawful motives and intent. (Shub v Westchester Community Coll., 556 F Supp 2d 227, 243 [SD NY 2008].) Therefore, the panoply of acts and statements that Etienne made, which are outside of the statute of limitations, including harassing and demeaning plaintiff in front of the staff, telling her that the district was "not a good fit for you" (state complaint ¶ 28), and threatening to give her, as a probationary administrator, an unsatisfactory rating on her end of the year annual performance evaluation unless she agreed to resign (¶ 29) can be used as background evidence in considering retaliatory animus on the part of Etienne.

Accepting Collins' allegations as true, and drawing all inferences in her favor, as the court must do at this stage of the proceeding, plaintiff has alleged a sufficient causal nexus between the protected activity and the retaliatory acts, especially in light of the intervening summer vacation. There is both evidence{**59 Misc 3d at 1056} of direct retaliatory animus on the part of Etienne and sufficient temporal proximity between Collins' protected activity in May 2012 of refusing to engage in age discrimination and the retaliatory actions of placing Collins in the ATR (sometime over the summer of 2012) and Etienne's giving her a negative job reference during the 2012-2013 [*18]school year to survive a motion to dismiss. However, all of Collins' allegations concerning purported retaliatory actions occurring in September 2013 and thereafter are too distant in time to be causally linked to her May 12, 2012, activity and are therefore dismissed. (See Birch v City of New York, 675 Fed Appx 43 [2d Cir 2017]; Burkybile v Board of Educ. of Hastings-On-Hudson Union Free Sch. Dist., 411 F3d 306, 314 [2d Cir 2005] [one year between protected activity and retaliation too long].)

In conclusion, plaintiff's claims of retaliation, as limited by the aforementioned findings, may proceed to trial.