Labor & Employment Law Daily Teacher’s firing for ex-boyfriend’s semi-nude photo of her actionable as gender-based bias
Monday, June 1, 2020

Teacher’s firing for ex-boyfriend’s semi-nude photo of her actionable as gender-based bias

By Joy P. Waltemath, J.D.

The superintendent who fired her said he had to because the picture showed her female breasts.

Allowing much of a fired teacher’s complaint to proceed against her former school district employer, a federal district court in New York found that allegations the school fired her because of a semi-nude selfie she had earlier given to her now ex-boyfriend (which the school district somehow had received) were enough to state a Section 1983 equal protection sex discrimination claim as well as Title VII, Title IX, and NYSHRL gender discrimination claims. The superintendent specifically told her that she had to be fired because the photo showed her “female breasts.” However, her equal protection “class of one” and Section 1985 conspiracy claims were inadequate (Miranda v. South Country Central School District, May 21, 2020, Cogan, B.).

In January 2019, authorities in the South Country Central School District “came into possession” of a semi-nude photo of a female middle school probationary teacher, a selfie she had taken and sent to a former boyfriend, a male teacher in the school district who she had been dating. It showed her face and uncovered breasts. When questioned by school officials, she admitted she had taken the picture years ago and that she had sent it only to her former boyfriend. Although the officials told her they believed her when she denied sending the photo to any students, and nothing suggested that she had sent the photo to anyone else but her former boyfriend, she was immediately suspended from teaching. After the district’s investigation, she was fired because of the photo depicting her as a “topless female.” The school district’s superintendent told her that she would have received tenure, but that she had to be terminated due to the picture showing her “female breasts.”

Lack of comparators. The male teacher involved (her ex-boyfriend) was never disciplined. She filed suit, claiming that the “true reason for the adverse employment action was unlawful discrimination” because of her gender. The employer moved to dismiss her multi-count complaint contending, among other things, that she failed to identify specific comparators, by which, the court quipped, “I suppose they mean male teachers who were not fired for taking a shirtless photograph.” However, the court pointed out that here the teacher had alleged direct evidence of discriminatory intent, and lack of comparators was not fatal.

Sex discrimination in public employment under equal protection. The teacher alleged she was fired despite denying she had sent the photo to anyone other than her ex-boyfriend, and nothing suggested it had been disseminated to anyone else. Before the image was brought to the school district’s attention, there was no reason for it to have fired her. Could the district treat female breasts differently than male breasts in a school setting? Disparate treatment of the breasts of men and women has survived equal protection challenges based on societal “disapproval of people appearing in the nude among strangers in public.”

Revenge porn? But this was different, said the court. The teacher’s act of sending an intimate image of herself to a romantic partner (who was not a minor), not intended to be viewed by anyone but him, was a “practice has become so common in our society that over forty-six states, including New York, have enacted legislation to address the related issue of the nonconsensual publication of these images for vengeful purposes (”revenge porn”). As such, the employer had not established that her firing termination was necessarily consistent with the Equal Protection Clause.

“Disruption.” The district contended that it had to fire her for an important government interest, namely, to “prevent[] the disruption [at] the school caused by students having a naked photo of their teacher.” But her complaint did not allege that any student had obtained or would likely have obtained the photo, or that there was any “disruption” at the school. At the motion to dismiss stage, the mere existence of her picture and the employer’s “procurement” of it did not establish it was necessary to fire her to maintain order at the school.

Moreover, the superintendent personally told the teacher that she had to be fired because of the photo depicting her “female breasts.” This was direct evidence specifically tethering her termination to her gender. Notably, the district offered no further justification for terminating her, and thus her equal protection gender discrimination claim survived dismissal.

Class of one equal protection, conspiracy claims. Equal protection also “protect[s] individuals against purely arbitrary government classifications,” knowns as the “class-of-one” theory, but it has no application in the public employment context, so this claim was dismissed, as was her § 1985(3) conspiracy claim. Under the intra-corporate conspiracy doctrine, “there is no conspiracy if the conspiratorial conduct challenged is essentially a ‘single act by a single corporation acting exclusively through its own directors, officers, and employees, each acting within the scope of his employment.’” As the school district’s agents, the trustees, whom she claimed were implicated in the conspiracy, were acting within the scope of their official capacity as officers and directors of the corporate entity throughout the process and were legally incapable of conspiring with the other defendants.

Other arguments. Because the individual defendants raised qualified immunity for the first time in their reply brief, the court would not consider it. Nor was the school district successful in arguing a lack of exhaustion of the teacher’s Title VII claims, since she had obtained a right to sue letter from the New York State Division of Human Rights, which satisfies Title VII’s exhaustion requirement.

Title VII, Title IX discrimination. For the same reasons that the § 1983 claim survived against the superintendent, the Title VII and Title IX claims survived against the school district, reasoned the court. The complaint alleges that the superintendent, a decisionmaker who “effectuated” the teacher’s firing, said she had to be fired because of her photo depicting her “female breasts,” not due to any gender-neutral factor. His remark makes it plausible that the teacher’s firing was because of her gender.

Monell claim. As far as the school district’s liability for the superintendent’s actions was concerned, it depended on whether he acted pursuant to official municipal policy in firing the teacher. She claimed the superintendent was a final policymaker as the district’s superintendent, but it was unclear whether his decision was merely a recommendation or that he needed to obtain the school board’s approval before terminating a probationary teacher. Nonetheless, her allegations were sufficient to avoid dismissal of a Monell claim against the school district.

NYSHRL claims. Although the school district claimed the teacher’s Notice of Claim was inadequate under state law because it did not specifically reference N.Y. Exec. Law, the Second Circuit has held that notice need not be “stated with literal nicety or exactness,” and the question is simply whether the notice includes “information sufficient to enable the city to investigate.” Here, the teacher’s notice contained abundant information from which defendants could adequately investigate and understand plaintiff’s legal theory of gender discrimination, concluded the court, listing out the elements of notice she included.

And, for the same reasons the court found the teacher had pleaded a prima facie case of Title VII discrimination against the school district, it would not dismiss her claims of discrimination under NYSHRL as to the school district. But while NYSHRL also permits individual liability, her complaint lumped defendants together in each claim and provided no factual basis to distinguish their conduct, so it failed to satisfy the minimum pleading standard except as to the superintendent. The remaining individual defendants’ motion to dismiss the NYSHRL claim was granted.

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