        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1303
CA 13-00348
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


DAWN CALHOUN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF HERKIMER, HERKIMER COUNTY DEPARTMENT
OF SOCIAL SERVICES, HERKIMER COUNTY OFFICE OF
EMPLOYMENT AND TRAINING ADMINISTRATION, KARIN
ZIPKO, IN HER INDIVIDUAL AND OFFICIAL CAPACITY,
JEFF WHITTEMORE, IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY, STEVEN BILLINGS, IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY, DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.


BOSMAN LAW FIRM, L.L.C., ROME (A.J. BOSMAN OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LEMIRE JOHNSON, LLC, MALTA (GREGG T. JOHNSON OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Herkimer County (Erin P. Gall, J.), entered October 30, 2012.
The order and judgment, among other things, granted the motion of
defendants for summary judgment dismissing the amended complaint.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously modified on the law by denying that part of the motion
seeking to dismiss the retaliation claims and reinstating those
claims, and as modified the order and judgment is affirmed without
costs.

     Memorandum: This retaliation action arises from plaintiff’s
employment with defendant Herkimer County Office of Employment and
Training Administration (Employment and Training Office) pursuant to a
contract between the Employment and Training Office and a nonprofit
service agency. Plaintiff worked for defendant County of Herkimer
(County) in the Employment and Training Office for approximately six
years. Defendant Steven Billings, who was then the County’s Director
of Employment and Training, was plaintiff’s supervisor. In 2005,
Billings’s wife (Mrs. Billings), a special education teacher, was
assigned to work with plaintiff’s son, who had been classified as
learning disabled. Beginning in October 2005, plaintiff expressed
dissatisfaction with the special education services provided to her
son by the school district generally and Mrs. Billings in particular.
In March 2006, plaintiff and her husband attended a contentious
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                                                         CA 13-00348

meeting at the school with various parties, including Mrs. Billings.
According to plaintiff, less than a week after that meeting, Billings
advised plaintiff that her contract might not be renewed upon its
expiration in April 2006 because of impending federal funding cuts.
In a follow-up email to the school principal and a subsequent
telephone conference with the principal and Mrs. Billings, plaintiff
continued to object to the alleged failure of Mrs. Billings to provide
services to plaintiff’s son in accordance with his individualized
education plan. Shortly thereafter, Billings notified plaintiff that
her contract would not be renewed.

     Plaintiff subsequently commenced this action alleging, inter
alia, that defendants subjected her to unlawful retaliation based upon
her advocacy on behalf of her son, alleging violations of, inter alia,
the Americans with Disabilities Act (42 USC § 12101 et seq.) and the
Human Rights Law (Executive Law § 290 et seq.). Defendants moved for
summary judgment dismissing the amended complaint, and Supreme Court
granted the motion. We note at the outset that plaintiff abandoned
any claims not related to retaliation by failing to advance any
contentions with respect to the merits thereof in her brief on appeal
(see Inter-Community Mem. Hosp. of Newfane v Hamilton Wharton Group,
Inc., 93 AD3d 1176, 1177; Davis v School Dist. of City of Niagara
Falls, 4 AD3d 866, 867). We conclude, however, that the court erred
in granting that part of the motion with respect to plaintiff’s
retaliation claims, and we therefore modify the order and judgment
accordingly.

     In order to make out a claim for unlawful retaliation under state
or federal law, a plaintiff must show that “(1) she has engaged in
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 295, 313; see Adeniran v State of New York, 106 AD3d
844, 844-845; see also Treglia v Town of Manlius, 313 F3d 713, 719).

     In order to establish entitlement to summary judgment in a
retaliation case, a defendant may “demonstrate that the plaintiff
cannot make out a prima facie claim of retaliation” or, alternatively,
a defendant may “offer legitimate, nonretaliatory reasons for the
challenged actions,” and show that there are “no triable issue[s] of
fact . . . whether the . . . [reasons are] pretextual” (Delrio v City
of New York, 91 AD3d 900, 901; see generally Forrest, 3 NY3d at 305).
Here, although we agree with the court that defendants met their
initial burden on the motion under the first of the two tests set
forth in Delrio by submitting evidence that they were not aware of
plaintiff’s protected activity and that, in any event, there was no
causal connection between her protected activity and the failure to
renew her contract (see Brightman v Prison Health Serv., Inc., 108
AD3d 739, 741), we conclude that plaintiff raised an issue of fact
with respect to each of those two elements of her prima facie case
(cf. id. at 742).
                                 -3-                          1303
                                                         CA 13-00348

     With respect to the element of defendants’ awareness of
plaintiff’s protected activity, plaintiff submitted Billings’s
deposition testimony, in which Billings acknowledged that, during the
course of plaintiff’s employment, he became aware that plaintiff’s son
was a student of his wife and that plaintiff was “not happy with
things that were happening at the school.” Billings further
acknowledged that, at some point, he specifically learned that “there
was an issue” between plaintiff and his wife concerning plaintiff’s
son. Plaintiff also submitted her own deposition testimony, in which
she testified that, after the dispute with the school escalated, “all
of a sudden [Billings] started making little comments” to her that
suggested that he had discussed plaintiff’s son with his wife. On one
occasion, for example, plaintiff told Billings that she had a meeting
at the school, and Billings made a comment to the effect of “going up
to fight with the school again[?]” or “[g]o get them.” Plaintiff’s
husband similarly testified at his deposition that, after the March
2006 meeting at the school, Billings became “very hostile” toward him
and told him that, “by pursuing this, [plaintiff] made it really
uncomfortable for [Billings’s] wife.” We thus conclude that plaintiff
set forth sufficient circumstantial evidence from which a trier of
fact could reasonably infer that Billings was aware of plaintiff’s
advocacy on behalf of her son (see generally Gordon v New York City
Bd. of Educ., 232 F3d 111, 117).

     With respect to the element of a causal connection, we note that
such element “may be established either ‘indirectly by showing that
the protected activity was followed closely by [retaliatory]
treatment, . . . or directly through evidence of retaliatory animus
directed against a plaintiff by the defendant’ ” (Johnson v Palma, 931
F2d 203, 207, quoting DeCintio v Westchester County Med. Ctr., 821 F2d
111, 115, cert denied 484 US 965; see Gordon, 232 F3d at 117; Sumner v
U.S. Postal Serv., 899 F2d 203, 209). Here, plaintiff’s submissions
raise an issue of fact relative to causal connection both indirectly
and directly. Plaintiff established a causal connection indirectly by
submitting evidence that her protected activity was followed closely,
i.e., within a few days or weeks, by Billings’s decision to terminate
her contract, thus raising an issue of fact based upon temporal
proximity (see Cioffi v Averill Park Cent. Sch. Dist. Bd. of Ed., 444
F3d 158, 168, cert denied 549 US 953; cf. Matter of Pace Univ. v New
York City Commn. on Human Rights, 85 NY2d 125, 129). In addition,
plaintiff established a causal connection directly by submitting
evidence of retaliatory animus on the part of Billings through her own
testimony and that of her husband (see DeCintio, 821 F2d at 115).

     Defendants also established their entitlement to summary judgment
under the second of the two tests set forth in Delrio, by articulating
legitimate, nonretaliatory reasons for the challenged employment
action. The burden thereby shifted to plaintiff to produce evidence
that the reasons put forth by defendants were merely pretextual or
that, “regardless of any legitimate motivations the defendant may have
had, the defendant was motivated at least in part by an impermissible
motive” (Brightman, 108 AD3d at 741; see Treglia, 313 F3d at 721;
Johnson, 931 F2d at 207; see generally Gordon, 232 F3d at 118; Sumner,
                                 -4-                          1303
                                                         CA 13-00348

899 F2d at 208-209). Viewing the evidence in the light most favorable
to the plaintiff, as we must, we conclude that “a reasonable jury
could find that the [nonretaliatory] reasons given by [defendants]
were pretextual explanations meant to hide [their] unlawful motive”
(Treglia, 313 F3d at 721; see Cioffi, 444 F3d at 168). Although
defendants assert that they did not renew plaintiff’s contract for
financial reasons, i.e., anticipated federal budget cuts, plaintiff
presented evidence that her position was funded in substantial part by
defendant Herkimer County Department of Social Services, which did not
reduce its funding for the position; that the actual funding cuts were
much lower than anticipated, i.e., 14% compared to 28%; and that she
was the only person affected by the funding cuts. Even if the loss of
federal funding were one of the reasons for the decision not to renew
plaintiff’s contract, we conclude that the timing and circumstances of
the nonrenewal suggest that impermissible retaliation may have played
a part in the decision (see Gordon, 232 F3d at 117-118; Sumner, 899
F2d at 208-209; Brightman, 108 AD3d at 741). Although the possibility
of federal funding cuts loomed as early as January 2006, plaintiff
testified that Billings had always assured her that, if funding were
lost, the County would find a place for her. It was not until shortly
after the situation at the school escalated in March 2006 that
Billings informed plaintiff that her contract might not be renewed.
Billings ultimately advised plaintiff that her contract had been
terminated shortly after she participated in a tense telephone
conference with Mrs. Billings and the school principal. We thus
conclude that plaintiff set forth sufficient evidence of pretext or
mixed motives to survive defendants’ motion for summary judgment (see
Sandiford v City of N.Y. Dept. of Educ., 22 NY3d 914, 916), and that
“[i]t is the province of a jury to weigh the evidence, assess
credibility, and ultimately determine whether defendants’ actions were
retaliatory” (Asabor v Archdiocese of N.Y., 102 AD3d 524, 529).




Entered:   February 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
