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Teacher can bring retaliation claim vs. school district

Defense: plaintiff wasn’t fired, demoted, transferred

hudson-jr_ozellA public school teacher who claimed her principal withdrew his approval for her to participate in an alternative licensure program and gave her negative evaluations after she complained of harassment by a male student could bring a retaliation claim against the district, a Superior Court in Massachusetts judge has decided.

The teacher, plaintiff Danielle Youngblood, also alleged that when she made her initial complaint, the principal accused her of inviting the harassment and told her that her identity as a woman was “secondary” to her identity as a teacher.

Defendant Boston Public Schools argued that the plaintiff — who had not been fired, demoted or transferred — failed to allege any adverse treatment. BPS also maintained that she could not demonstrate that her complaints caused the alleged mistreatment.

Judge Peter M. Lauriat disagreed, finding that any “material disadvantage” to her working conditions sufficed to satisfy the adverse action requirement under the retaliation statute.

He also pointed to the Supreme Judicial Court’s finding last spring in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., et al. that evidence of gender stereotyping could support an inference that an adverse employment action was based on impermissible grounds.

In Verdrager, the employer allegedly told the employee that she was less concerned about her professional development than pursuing a sex discrimination claim.

“[This] is reminiscent of [the principal’s] alleged reminder to Youngblood … that her identity as a woman was ‘secondary’ to her identity as a teacher,” Lauriat wrote, denying the defendants’ motion to dismiss.

The 19-page decision is Youngblood v. City of Boston Public Schools, et al.

No ‘big bang’

Plaintiff’s counsel Ozell Hudson Jr. said the decision indicates that the SJC’s 2016 decision in Bulwer v. Mount Auburn Hospital, et al. will have an “enormous impact” in Massachusetts employment cases going forward.

“In essence, there will be no need to show additional evidence of discrimination once pretext is shown,” the Boston lawyer said.

Hudson added that Lauriat’s decision reaffirms Massachusetts law in other aspects as well. For example, it reinforces that when a plaintiff takes leave to amend his or her complaint, the amended complaint will relate back to the date of the original complaint and will not be barred by a limitations period.

Ellen J. Messing, a Boston attorney who represents plaintiffs in retaliation cases and who submitted an amicus brief in Verdrager on behalf of the Massachusetts Employment Lawyers Association, said Lauriat’s ruling shows that Verdrager, too, is having reverberations in the lower courts.

The SJC in Verdrager found that a female associate at Mintz Levin, who claimed she experienced adverse employment actions after complaining of allegedly inappropriate comments by a male partner, had presented enough evidence that the firm’s proffered reasons for demoting her were pretextual to bring sex discrimination and retaliation claims.

“[Bulwer and Verdrager] are cited in close proximity in this ruling because they both really changed the landscape and showed a very sophisticated understanding by the court of pretext and stereotyping,” she said. “In this case, the stereotyping is cloaked behind a supposed concern for students, with the principal saying, ‘I care about the students here and you need to be supportive of your students, because that’s a teacher’s first loyalty.’ The judge is seeing through that, recognizing that the supposed concern for students is cloaking an inability to recognize that this employee is being humiliated and debased by gender-based harassment.”

In Youngblood, Messing said, the judge seems to focus on how the employer does not need a “big bang” like a firing or demotion to destroy someone in the workplace.

“Here, they say, ‘Well, she wasn’t fired or demoted and didn’t lose any money.’ But she got a bad evaluation, got bad observation reports, and she was excluded from the [licensure] program,” Messing said. “The court said that is enough [to bring a retaliation claim], and that’s a really important takeaway from this case. There are lots of adverse employment actions that are significant to people’s work lives; it’s not just the end-of-the-line employment actions that are important.”

Christina L. Lewis, a management-side employment lawyer in Boston who was not involved in the case, said the ruling could be very significant going forward in cases in which, aside from evidence of gender stereotyping, evidence of animus is either subtle or non-existent.

For example, if a female employee alleges she was cautioned about or evaluated negatively for her “tone” or for being “overly assertive” or “not a team player,” in the eyes of some courts it could be evidence of gender stereotyping, Lewis said.

“If the same employee later faces an adverse employment action after engaging in protected activity, the alleged stereotyping may be enough to establish a causal link between the protected activity and the adverse employment action, giving rise to a viable claim for retaliation,” she said.

Evan M. Fray-Witzer of Boston said he has been advising his employer clients for more than a decade that their reaction to a harassment complaint is more likely to get them in trouble than the original underlying actions. Yet that message often does not stick, he said.

“There are two reefs we try to steer our clients away from: adverse actions that are so close in temporal proximity that the timing alone makes the action suspect, and comments that seem to evince hostility against the employee because he or she raised a complaint,” Fray-Witzer said. “Somehow the defendant here managed to run aground on both reefs at the same time.”

A spokesperson for the BPS declined to comment on behalf of the defendants.

“There are lots of adverse employment actions that are significant to people’s work lives; it’s not just the end-of-the-line employment actions that are important.”

— Ellen J. Messing, Boston

Alleged animus

In 2010, the plaintiff was assigned to teach English language arts at the McKay School in East Boston.

That December, she informed her principal, Marco Curnen, that a male student was sexually harassing her. She apparently told Curnen that the school should offer “gender-based learning” to teach students how to avoid sexual harassment situations.

Curnen allegedly responded that the problem probably stemmed from how she interacted with her male students.

On April 29, 2011, Curnen issued the plaintiff a written warning for an undisclosed disciplinary infraction, which the plaintiff said was part of an orchestrated retaliatory campaign following her complaint about the student.

In June, the plaintiff reported to Curnen that a second male student had written her a letter threatening physical harm. She allegedly was told to handle the situation herself.

Later that month, the plaintiff received a negative evaluation. All prior evaluations apparently had stated that she “met or exceeded” BPS expectations.

Meanwhile, the plaintiff was trying to get into the Performance Review Program for Initial Licensure, an alternative path to moving from her preliminary to initial teaching license for which she needed Curnen’s approval. He initially agreed to give his approval, but the plaintiff allegedly was unable to schedule follow-up meetings.

Nonetheless, Curnen continued to initiate meetings regarding performance observations, and in December 2011 gave her a poor evaluation for the fall.

During a January 2012 post-observation meeting, the plaintiff told Curnen of a 2011 incident in which the first male student made “hurtful and violating” comments to her in a letter. The principal allegedly agreed that the conduct was inappropriate but did not constitute harassment, and that her primary identity in the classroom was a teacher and her identity of “womanhood” was secondary.

That month the plaintiff complained about further offensive behavior by the same student. Meanwhile, she said, she was still unable to set up a meeting with Curnen about her PRPIL application.

On Feb. 6, 2012, he told her he had withdrawn his signature from her application.

Two days later, Curnen held a disciplinary meeting with the plaintiff at which he allegedly accused her of using inappropriate language in the classroom.

A week later, the plaintiff filed a complaint against Curnen with the BPS Equity Office alleging sex discrimination, student sexual harassment and retaliation.

On March 16, 2012, the plaintiff received an incomplete but negative interim evaluation. She filed a retaliation complaint with the Massachusetts Commission Against Discrimination and removed the case to Superior Court in 2015.

The defendants moved to dismiss.

Sufficient pleadings

Lauriat rejected the defendants’ argument that the plaintiff suffered no adverse action as required for a retaliation claim under Chapter 151B.

Any material disadvantage to the plaintiff’s employment — or “real harm” — sufficed as an adverse action, and Curnen’s withdrawal of his support for her PRPIL application counted, Lauriat found.

“Though the defendants characterize the PRPIL program as ‘optional’ and contend that it is merely a ‘privilege,’ at this stage the court is required to take as true Youngblood’s assertion that participation in the program is a job requirement,” Lauriat said. “If the program is required, it is reasonable to infer that Youngblood’s inability to participate materially disadvantaged her employment.”

The judge also found that the disciplinary actions Curnen took against the plaintiff as well as the negative interim evaluation constituted adverse actions.

On the question of causation, Lauriat, alluding to Verdrager, said that based on the plaintiff’s allegations, Curnen may have judged her “through the lens of a stereotype” in telling her that her own conduct probably invited the harassment by the student in question.

Under Verdrager, the judge said, criticisms that reflect such thinking can support an inference that an adverse employment action was made on an illegal basis.

The judge also noted the close proximity in time between the plaintiff’s complaints of harassment and the adverse treatment she allegedly received.

“For these reasons, the court concludes that Youngblood has alleged sufficient facts to establish a prima facie case for retaliation and the defendants’ motion to dismiss must be denied,” Lauriat said.

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