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A plaintiff has a 42 U.S.C. §1981 cause of action for retaliation against a superior if she or he wa

Both the Plaintiff and two former teachers at their school sued the New York City Department of Education. The case was removed, separated whereby Plaintiff, Villavicencio, filed her own action which, eventually, was dismissed. The Court recited the facts as follows: “Throughout a portion of the 2008-2009 school year, plaintiff, a Latina female, worked on probationary status as an assistant principal at P.S. 316, under the supervision of defendant, her principal.” “After Gure-Perez was appointed principal of P.S. 316, she instructed Villavicencio to "aggressively supervise 'older staff members' at PS 316 to shake them up." All of these staff members were minorities, and all but one was African-American.” Plaintiff “alleged that she had been ordered by Gure-Perez to file false reports against African American teachers at P.S. 316, and that, in retaliation for her refusal to do so, defendant discharged her as assistant principal.”

Eventually, Plaintiff refused to comply and then became the target of nitpicking, unsatisfactory ratings, nitpicking and false accusations leading up to Plaintiff being subscribed medication and being forced to go on medical leave. Although not cited by either party, Judge Jack B. Weinstein cited a line of cases which

“suggest that a plaintiff has a 42 U.S.C. §1981 cause of action for retaliation against a superior if she or he was retaliated against for attempting to prevent discrimination at the direction of a superior.” Specifically, Judge Weinstein cited:

Law: Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863, 868 (2011) (finding that third-party reprisals are not categorically excluded from operation of Title VII's antiretaliation provision); CBOCS W., Inc. v. Humphries, 553 U.S. 442, 452-54 (2008) (holding that a cognizable Section 1981 retaliation claim includes a claim by an individual who suffers retaliation for having tried to help a person allegedly discriminated against); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 179-81 (2005) (finding that a school coach could assert a retaliation claim even though he was not a victim of the discrimination that was the subject of his original complaints); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969) (holding that a person has standing to bring suit under the Civil Rights Act if she or he can show that she or he was "punished for trying to vindicate the rights of minorities"); Albert v. Carovano, 851 F.2d 561, 572-73 (2d Cir. 1988) (explaining that, under the case law, "non-minority plaintiffs may bring an action under Section 1981 against one who has retaliated against them because they did not engage in purposeful racial discrimination") (emphasis in original); Hudson Valley Freedom Theater, Inc. v. Heimbach, 671 F.2d 702, 706-7 (2d Cir. 1982) (holding that a corporation had standing to challenge discriminatory practices that led to the cutting off of its grant funding); and DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 311-12 (2d Cir.), modified on other grounds, 520 F.2d 409 (1975) (finding that a white employee had standing under the Civil Rights Act to sue his employer for allegedly forcing him into premature retirement solely because he had sold his house in a neighborhood inhabited primarily by white employees to a black fellow employee).

Conclusion: “Relying principally on Leibovitz v. N.Y.C. Transit Auth., summary judgment was granted. 252 F.3d 179 (2d. Cir. 2001). The theory of the Court of Appeals for the Second Circuit in Leibovitz was that a plaintiff has no cause of action for discrimination that she did not herself observe.” The Court here found cases that fall into sharp contrast with that decision – reargument was ordered.

The case is Villavicencio v. Gure-Perez, 14-CV-0889, NYLJ 1202673013322, at *1 (EDNY, Decided October 8, 2014)

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