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Sept. 2 — Claims alleging that a public employee was retaliated against because he or she made a discrimination complaint may now be brought against government officials and supervisors under the Civil Rights Act of 1871 (42 U.S.C. § 1983), the U.S. Court of Appeals for the Second Circuit ruled Sept. 2.
The court revived race bias and retaliation claims brought by Carlos Vega under Title VII of the 1964 Civil Rights Act and Section 1983. Vega, a Puerto Rican teacher, alleged that his principal and Hempstead Union Free School District in New York tried to force him to teach only the Hispanic student population and retaliated against him when he complained that this was discriminatory.
Section 1983 is the vehicle for enforcement of certain rights guaranteed under the 14th Amendment's equal protection clause. It provides for actions against government officials, in contrast to Title VII, which allows for claims against employers.
“We acknowledge that there has been considerable confusion surrounding the viability of retaliation claims under § 1983, and we now clarify that retaliation claims alleging an adverse action because of a complaint of discrimination are actionable under § 1983,” Judge Denny Chin wrote for the court. He concluded it was error to dismiss Vega's retaliation claims against his principal, and found that he pleaded sufficient facts to proceed with his race discrimination claim against the school district.
Judges Robert Katzmann and John Walker joined the opinion.
Vega, who is fluent in English and Spanish, has taught math in the school district for at least 24 years, the last 16 years at the district's high school, according to the opinion.
He alleged that he never received a negative performance evaluation since he started teaching at the high school. Chy Davidson was principal from 2006-2011, and Dagoberto Artiles succeeded him.
• he was assigned an increased percentage of Spanish-speaking students who didn't speak English, which meant the students needed translation services and Vega had to do twice the work, without extra compensation;
• he was prevented from using his regular classroom on one occasion and was forced to teach in a noisy media center with no blackboard;
• he was “assigned a classroom with a ‘University of Puerto Rico' banner above the door”;
• Davidson attempted to transfer him, but later rescinded the action after Vega objected and informed the assistant superintendent that he had a higher percentage of passing students than most of his colleagues;
• the district granted Vega a transfer to the Academy of Math and Sciences, whose principal was Hispanic, even though he never requested the transfer.
Vega also alleged that district officials took retaliatory actions after he filed a formal discrimination complaint.
Vega also claimed that the district purposely assigned him during the 2011-2012 school year students with very poor attendance records, causing his rate of excessively absent students to jump from 20 percent to 75 percent.
Vega sued in December 2012. He received his first negative review in 16 years in early 2013.
The court acknowledged that it has “sent conflicting signals” with respect to the viability of retaliation claims under Section 1983.
It explicitly denied such a claim in Bernheim v. Litt, 79 F.3d 318 (2d Cir. 1996), saying it wouldn't break new constitutional ground. Lower courts, including the one in the current case, relied on Bernheim to dismiss these claims, Chin noted.
The court's subsequent decision in Hicks v. Baines, 593 F.3d 159, 108 FEP Cases 577 (2d Cir. 2010), however, “squarely recognized that an employer's retaliatory action in response to an employee's participation in discrimination investigations and proceedings constituted an ‘impermissible' reason to treat an employee differently” under the equal protection clause, Chin wrote.
Additionally, the U.S. Supreme Court ruled that “retaliation is a form of discrimination” in Jackson v. Birmingham Bd. of Education, 544 U.S. 167, 95 FEP Cases 669 (2005), a case brought under Title IX of the Education Amendments of 1972. That “reasoning applies with equal force to the employment context,” Chin said.
He found that the lower court applied an erroneous standard to Vega's pleadings on his bias claim. “At the pleadings stage of the litigation, Vega was not required to plead a prima facie case of discrimination.” Rather, he only had to meet the “minimal” burden of plausibly alleging facts that provide some support for the proposition that the employer was motivated by discriminatory intent, the court held.
Scott Michael Mishkin, PC represented Vega. Ingerman Smith, LLP represented the school district parties.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/CARLOS_VEGA_PlaintiffAppellant_v_HEMPSTEAD_UNION_FREE_SCHOOL_DIST.
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