LEWIS A. KAPLAN, United States District Judge.
This matter is before the Court on the defendants' motion for partial summary judgment. Magistrate Judge Robert W. Lehrburger has rendered a report and recommendation, dated August 7, 2018 (the "R&R"), which recommends that the motion be granted in part and denied in part. Defendants object to so much of the R&R as recommends denial of the motion insofar as it seeks summary judgment dismissing (1) plaintiff Hightower's Title VII, 42 U.S.C. § 1981, and New York State Human Rights Law ("SHRL") claims of constructive discharge; (2) plaintiff James Title VII, 42 U.S.C. § 1981, and SHRL disparate treatment claims; (3) plaintiff Riccardo's retaliation claims under the Fourteenth Amendment, Title VII, the SHRL, and the New York City Human Rights Law; (4) the claim of the United States based on an alleged pattern and practice of retaliation.
The Court has considered the objections as well as the government's response to them with care. It finds no error of fact or of law in the R&R's treatment of the claims placed in issue by defendants' objections.
Accordingly, defendants' motion for partial summary judgment [DI 66, docket no. 16-cv-4291 (LAK)] is granted to the extent that (1) the retaliation claims of plaintiffs James and Hightower; (2) all aiding and abetting claims; and (3) plaintiff Riccardo's Section 1983 claims against the New York City Department of Education all are dismissed. The motion is denied in all other respects.
SO ORDERED.
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE
Procedural History...379
Facts...380
A. Pan American...380
B. Riccardo's Employment at Pan American...381
C. Hightower's Employment at Pan American...386
D. James' Employment at Pan American...387
E. The OEO Investigations...389
Legal Framework...390
A. Summary Judgment Standard...390
B. Admissibility of Evidence...391
Discussion...392
B. James' Hostile Work Environment Claims...399
C. NYSHRL and NYCHRL Aiding and Abetting Claims...401
D. Retaliation Claims...402
E. Enforcement of Riccardo's Stipulated Release...413
F. Pattern or Practice of Discrimination in Violation of Title VII...417
Conclusion...421
TO THE HONORABLE LEWIS A. KAPLAN, U.S.D.J.:
Plaintiffs, Anthony Riccardo, Lisa-Erika James, Heather Hightower, John Flanagan, and the United States of America ("United States"), bring these consolidated actions against the New York City Department of Education ("DOE"), Juan Mendez, and Minerva Zanca alleging employment discrimination and retaliation in violation of 42 U.S.C. § 1981; 42 U.S.C. § 1983; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"); the New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq. ("NYSHRL"); and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq. ("NYCHRL").
Defendants move for summary judgment against (1) James' and Hightower's disparate treatment claims brought pursuant to Title VII, § 1981, and the NYSHRL; (2) James' hostile work environment claims; (3) all of James' and Hightower's retaliation claims; (4) all of Riccardo's claims; (5) all aiding and abetting claims brought pursuant to the NYSHRL and the NYCHRL; and (6) all of the United States' claims except for its Title VII claims that the DOE discriminated against and retaliated against Flanagan. For the reasons that follow, the Court recommends that Defendants' motion be GRANTED in part and DENIED in part.
These related cases each involve allegations that Minerva Zanca, the Principal of Pan American International High School ("Pan American"), discriminated and retaliated against the school's three African-American teachers, Lisa-Erika James, Heather Hightower, and John Flanagan, as well as Assistant Principal Anthony Riccardo.
Hightower filed charges of race discrimination with the United States Equal Opportunity Employment Commission ("EEOC") on August 16, 2013. (Def. 56.1 ¶ 338.
The EEOC found probable cause to believe that the DOE engaged in discriminatory conduct and referred the charges to the United States Department of Justice. On June 9, 2016, the United States filed its lawsuit against the DOE. Riccardo filed his action on June 12, 2016, and Hightower and James filed their action on June 22, 2016. On October 13, 2016, all three cases were consolidated along with a lawsuit filed by Flanagan.
Pan American is part of the DOE's International Network, a network of fourteen schools operating under a specific English-as-a-Second-Language model. (Def. 56.1 ¶ 1.) Ninety-nine percent of the student body at Pan American is composed of non-native English speakers. (Def. 56.1 ¶ 1.) Pan American is also part of the Children's First Network, a support group for twenty-five schools. (Def. 56.1 ¶¶ 1-2.) In 2011, the DOE identified Pan American as a "focus school", meaning it was performing at the bottom fifteen percent of all schools in the state. (Def. 56.1 ¶ 1.)
Principal Zanca was promoted to Principal at Pan American for the 2012-13 school year, and her tenure there lasted through the 2014-15 school year. (Def. 56.1 ¶ 6.) Prior to joining Pan American, Zanca worked as an assistant principal for two years, a guidance counselor and teacher for a combined total of ten tears, and a Spanish language teacher for twelve years. (Def. 56.1 ¶ 13.) Zanca testified that when she was appointed Principal, she was tasked with raising the graduation rate at Pan American. (Deposition of Minerva Zanca dated June 5, 2017 ("Zanca Dep."), attached as Ex. G to Declaration of Danielle M. Dandridge dated Oct. 6, 2017 ("Dandridge Decl."), at 22.
From 2011 to 2014, Juan Mendez served as the Queens High School Superintendent
During the 2012-2013 academic year, probationary teachers, without tenure or prior service, were subject to a three-year probationary period. (Def. 56.1 ¶ 27.) Teachers were evaluated through both informal and formal observations, for which they received either "satisfactory" or "unsatisfactory" ratings from school administrators. (Def. 56.1 ¶¶ 32, 35-36.) At the end of the school year, in accordance with DOE policy, all Pan American teachers received either a "satisfactory" or an "unsatisfactory" annual performance rating, based on those observations, as well as disciplinary letters, goals met, attendance records, and, in certain cases, "logs of support."
From 2006 through 2011, Riccardo taught at various schools within the DOE network. (Def. 56.1 ¶¶ 228-31.) In 2011, he was promoted to Assistant Principal of Pan American by Marcella Barros, who held the position of Principal at Pan American from 2010 until 2012. (Def. 56.1 ¶¶ 229-31, 234.) As Assistant Principal, Riccardo's responsibilities included scheduling, programming, payroll, lunch duty, and participating in teacher observations. (Def. 56.1 ¶¶ 233, 235.)
On June 24, 2013, Riccardo wrote a statement recounting Principal Zanca's treatment of the three African-American teachers at Pan American over the course of the 2012-13 school year. (Statement of Anthony Riccardo dated June 24, 2013 ("Riccardo Statement"), attached as Ex. 17 to Declaration of Caleb Hayes-Deats dated
Riccardo also claims that since Principal Zanca could not terminate James due to tenure, Zanca schemed to eliminate James' theater program by reducing its funding. Despite the fact that money was already earmarked for the spring theater performance, Principal Zanca "pulled the funds" and instead purchased smart boards with the allocated funds. (Riccardo Statement at 2.)
Riccardo states that many teachers received unsatisfactory ratings during Zanca's tenure, but alleges that no teachers were "so ruthlessly" targeted as Flanagan and Hightower. (Riccardo Statement at 1.) Riccardo claims that Principal Zanca informed him that four unsatisfactory lessons was the "magic number" to get a teacher removed from the school. (Riccardo Statement at 1.) As early as November, Principal Zanca decided to fire Flanagan and Hightower, and, each time she and Riccardo observed their classroom lessons, she had already predetermined the rating for those lessons. (Riccardo Statement at 1.) Riccardo also asserts that when he was assigned the task of meeting with Hightower to improve her teaching, Principal Zanca warned him, "You better not make her a better teacher." (Riccardo Statement at 1). When Riccardo refused to rate one of Hightower's lessons as unsatisfactory, Principal Zanca was furious and, the following day, conducted an additional review of Hightower's classroom lesson, which she deemed unsatisfactory. (Riccardo Statement at 1-2.) Riccardo claims that after Principal Zanca realized he would "no longer [] support her unethical behavior, she began to oust" him in the same manner as Flanagan and Hightower. (Riccardo Statement at 2.) At the end of the school year, Principal Zanca recommended that Hightower, Flanagan, and Riccardo should be terminated. (Def. 56.1 ¶¶ 78, 154, 283.)
In his statement, Riccardo also alleges that Principal Zanca made a series of remarks to him that had a "racial tone" concerning Hightower and Flanagan. (Riccardo Statement at 1.) The first such remark, made after an observation of Hightower's class on December 14, 2012, was that she "looked like a gorilla in a sweater." (Riccardo Statement at 1.) On December 18, 2012, following a meeting with Flanagan, Principal Zanca asked, "[D]id you see his big lips quivering?" (Riccardo Statement at 1.). Riccardo states that at a later date, when they were discussing Flanagan, Principal Zanca said that "she has a hard time not laughing in his face" because every time she sees his face, "it reminds her of a Tropicana commercial where this guy `with those same lips' is dancing down a supermarket aisle." (Riccardo Statement at 2.) According to Riccardo, Principal Zanca also remarked on Hightower's hair, stating, "What is with her fucking nappy hair? I could never have hair like that." (Riccardo Statement at 2.) Principal Zanca denies having made any racist statements regarding any of the Plaintiffs. (Def. 56.1 ¶ 299.)
After hearing Principal Zanca's purported comments, Riccardo began to suspect that Principal Zanca's treatment of the African-American teachers at Pan American was motivated by racial animus. (Riccardo Statement at 1-2.) Riccardo claims
Riccardo testified that his relationship with Principal Zanca began to "deteriorate" in January 2013 after she learned about certain course programming and transcript errors, which resulted in students' transcripts not accurately reflecting their fulfillment of graduation requirements. (Def. 56.1 ¶ 251.) Soon after, Principal Zanca switched Riccardo to the role of Assistant Principal of Security, which removed his responsibilities over tasks such as programming and payroll, although Plaintiffs argue that even in his new position he continued to observe and evaluate teachers. (Pl. 56.1 Responses ¶ 254.) On April 30, 2013, Principal Zanca held a disciplinary conference with Riccardo and his union representative to discuss the programming and transcript errors. (Def. 56.1 ¶ 257.) On May 2, 2013, Principal Zanca issued two disciplinary letters to Riccardo's file, one concerning the student transcripts and the other concerning course programming. (Def. 56.1 ¶ 258.)
In February 2013, Principal Zanca and the Children First Network Deputy Director, Randall Iserman, conducted a review of "per-session" timesheets and, in the course of that review, determined that for a period of time Riccardo had been approving his own per-session timesheets.
As late as April 2013, however, two months after her complaint to OSI, Principal Zanca was still actively recommending Riccardo for other pedagogical positions. (See Exs. 33-35 attached to Hayes-Deats Decl.) For instance, on April 17, 2013, she wrote to another school administrator that "[Riccardo] is an AP everything, and is responsible for budget, testing, compliance issues, security and also does observations and professional development.... Although, I wouldn't want to lose him, I also do not want to prevent him from reaching
Riccardo took a medical leave of absence from Pan American for the majority of May through the first week of June 2013. (Letter to File dated June 18, 2013 ("Disciplinary Letter for Absenteeism"), attached as part of Ex. 37 to Hayes-Deats Decl., at USA002487; Memorandum of Flora Rodriguez dated June 17, 2013, attached as Ex. EEEE to Dandridge Decl., at 1-2.) His doctor recommended that he take this extended leave of absence for health reasons. (New York State Prescription, attached as Ex. 39 to Hayes-Deats Decl.) The DOE's medical examiner found that these absences were medically justified. (Employee Medical Review dated June 12, 2013, attached as part of Ex. 37 to Hayes-Deats Decl., at USA002489.)
On April 18, 2013, Riccardo observed Hightower's lesson. Riccardo did not sign the formal observation report rating the lesson "satisfactory" until he returned from his medical absence on June 6, 2013. (April 18 Formal Observation Report, attached as Ex. XX to Dandridge Decl.) That same day, Principal Zanca and Riccardo had an altercation that concluded with Riccardo being escorted from campus.
The parties offer conflicting versions of this encounter. Principal Zanca reported that she asked Riccardo why he had rated Hightower's lesson "satisfactory" when he had previously informed her that the lesson "sucked, as usual." (Letter to File dated June 18, 2013 ("Insubordination Disciplinary Letter"), attached as part of Ex. 37 to Hayes-Deats Decl., at USA002484-85; Zanca Dep., Ex. G at 74-75.) Riccardo raised his voice and asked, "Do you want it to be unsatisfactory?" (Insubordination Disciplinary Letter at USA002484.) When Principal Zanca told Riccardo to stop texting and to get back to work, he yelled, "[G]o to your office and leave me alone." (Insubordination Disciplinary Letter at USA002484.) Principal Zanca told him that his conduct was unprofessional and amounted to insubordination; Riccardo responded stating, "[I]t's by example set by you." (Insubordination Disciplinary Letter at USA002484.) Feeling threatened, Principal Zanca called security, and, after security arrived, Riccardo left the school premises. (Insubordination Disciplinary Letter at USA002485.)
According to Riccardo's recitation of the incident, Principal Zanca confronted him about whether he would give Hightower an "unsatisfactory" rating, and when he refused, she accused him of "sabotaging her plan." (Pl. 56.1 Responses ¶ 277.) Zanca instructed Riccardo to get off his phone, and he asked her to leave his office. (Deposition of Anthony Riccardo dated May 3, 2017 ("Riccardo Dep."), attached as Ex. 30 to Hayes-Deats Decl., at 177.) Riccardo testified that Principal Zanca said she felt threatened so he left the building. (Riccardo Dep., Ex. 30 at 177.) That same day, she also appears to have created a log of support for Riccardo. (Anthony Riccardo Log of Assistance 2012/2013 ("Riccardo Log"), attached as Ex. BBBB to Dandridge Decl.) In an email written a few days later, Principal Zanca characterized Riccardo's "satisfactory" rating of Hightower's lesson as "an attempt to sabotage the work [she had] done on this matter." (Email of Minerva Zanca dated June 10, 2013, attached as part of Ex. 40 to Hayes-Deats Decl.)
In connection with this incident, Principal Zanca held a disciplinary conference on June 18, 2013, and issued a disciplinary letter for insubordination to Riccardo's file.
At the close of the 2012-13 school year, Principal Zanca rated Riccardo's annual performance as "unsatisfactory" and recommended discontinuance of his probationary employment. She signed the evaluation on June 25, 2013, and checked a box recommending discontinuance. (Pedagogical Supervisory Personnel Report dated June 26, 2018 ("Personnel Report"), attached as Ex. HHHH to Dandridge Decl.) Superintendent Mendez signed it on June 26, 2013, but did not check the same box recommending discontinuance. (Personnel Report.) On June 27, 2013, Superintendent Mendez wrote Riccardo that Mendez would consider whether to discontinue Riccardo's probationary service by July 29, 2013 and invited Riccardo to submit a written response. (Def. 56.1 ¶ 300.) In a July 3 email, however, Superintendent Mendez informed other DOE administrators that "the discontinuance was approved by me." (Email of Juan Mendez dated July 3, 2013, attached as part of Ex. 53 to Hayes-Deats Decl.)
Also late in June, Riccardo contacted Bob Reich and Mercedes Quails from his union and discussed the possibility of signing a stipulation to resign. (Def. 56.1 ¶ 302.) He received a draft stipulation from Reich containing largely the same terms as the stipulation that he would ultimately sign and execute. (Def. 56.1 ¶ 302.) On July 26, 2013, Riccardo submitted a letter to Superintendent Mendez contesting his termination and alleging that the evidence submitted by Principal Zanca was "embellished and inaccurate" and that she had "been nothing short of an unethical tyrant in her short time a[t] the school. This has been brought to the attention of both the network and yourself to no avail." (Def. 56.1 ¶ 303; Letter of Anthony Riccardo dated July 26, 2013 ("7/26/13 Riccardo Letter"), attached as Ex. LLLL to Dandridge Decl.) Riccardo also noted in the letter that he had attempted to contact the Superintendent several times but had not received a response, and Riccardo further wrote that if he did not hear from Mendez soon, he would "consider all of [his] legal options." (Def. 56.1 ¶ 293; 7/26/13 Riccardo Letter.) In August, Riccardo and Superintendent Mendez met regarding his discontinuance. (Def. 56.1 ¶ 304.) Mendez testified that they discussed Riccardo's allegations against Principal Zanca, Riccardo's delay in reporting her discriminatory comments, and the possibility of a stipulation to achieve a satisfactory rating. (Mendez Dep., Ex. I at 269-73.)
In an email dated August 16, 2013, Riccardo described the essential terms of the stipulation to Superintendent Mendez. (Email of Anthony Riccardo dated Aug. 21, 2013, attached as part of Ex. MMMM to Dandridge Decl.) The stipulation provided that Principal Zanca would issue Riccardo a "satisfactory" rating for his performance during the 2012-13 school year and in exchange, Riccardo would agree to irrevocably resign from the DOE effective August 25, 2013. (Stipulation, attached as Ex. NNNN to Dandridge Decl. ¶ 1.) The stipulation also stated that Riccardo "waives all claims against the Chancellor, the Principal, the Department of Education or any of its agents or employees in any administrative, judicial or other form arising out of the unique and particular facts of this matter." (Stipulation ¶ 6.) Riccardo signed the stipulation on August 28, 2013. It was eventually signed by Superintendent Mendez,
Beginning in late June 2013, media out-lets began to cover Riccardo's allegations concerning Principal Zanca's alleged remarks and her treatment of the African-American teachers at Pan American. (See Clarke Gail Baines, Black Teachers Fired By NYC Principal Who Said They Had "Big Lips" And Looked Like "A Gorilla In A Sweater With Nappy Hair," Madame Noire (June 28, 2013), attached as part of Ex. U to Affirmation of Noah A. Kinigstein dated June 30, 2015 ("Kinigstein Aff.").
On or about July 26, 2013, Principal Zanca reported to the Office of the Special Commissioner of Investigation ("SCI") that Riccardo had brought marijuana to Pan American to give to the school's Payroll Secretary, Flora Rodriguez, who was a cancer survivor. (Excerpts from the Special Commissioner of Investigation ("SCI Investigation Report"), attached as Ex. 47 to Hayes-Deats Deck, at SDNY_01029.) During her interview with the SCI investigator, Principal Zanca also alleged that Riccardo was a recovering drug addict and a former member of the Hell's Angel gang.
Hightower worked at Pan American as a science teacher from 2010 through the end of the 2012-13 school year. (Def. 56.1 ¶¶ 115, 122.) Her probationary status was scheduled to be up for review at the end of the 2012-2013 academic year. (Def. 56.1 ¶ 119.) She received "satisfactory" ratings for her performance prior to Principal Zanca's arrival. (Annual Professional Performance Reviews, attached as Ex. 4 to Hayes-Deats Decl.)
As described above, Principal Zanca and Riccardo conducted joint formal observation reports of Hightower's classroom lessons on November 13, 2012, and December 10, 2012, both of which were rated "unsatisfactory." (Def. 56.1 ¶¶ 132, 135.) In conjunction
Following these evaluations, Principal Zanca asked Hightower to work with a coach to assist her with subject matter and requested that Riccardo meet with Hightower regularly to review her curriculum planning and content. (Def. 56.1 ¶¶ 128-29.) Riccardo stated, however, that Principal Zanca privately warned him that he "better not make [Hightower] a better teacher." (Riccardo Statement at 1.) As a result of feeling anxious and isolated at work, Hightower started exploring alternative career options. (Deposition of Heather Hightower dated May 10, 2017 ("Hightower Dep."), attached as Ex. B to Dandridge Decl., at 49.) In April 2013, she submitted a deposit to attend nursing school the following year. (Hightower Dep., Ex. B at 46-47.) At some point during the Spring semester, Hightower met with Principal Zanca, Riccardo, and her union representative, Peter Lamphere, to discuss her performance; they informed her that she would not be receiving tenure. (Hightower Dep., Ex. B at 159-60.)
On April 18, 2013, Riccardo observed Hightower's lesson and on June 6, 2013 more than six weeks later — he signed a formal observation report rating the lesson "satisfactory." (April 18 Formal Observation Report.) Defendants allege that Principal Zanca was suspicious of the validity of this "satisfactory" rating as Riccardo had verbally conveyed to her in April that the lesson had been unsatisfactory, while Plaintiffs argue that this rating was consistent with the post-observation conference Riccardo held with Hightower on April 26, 2013. (Compare Zanca Dep., Ex. G at 73-74, with Pl. 56.1 ¶ 385.) The following day, on June 7, 2013, Principal Zanca observed Hightower's lesson and signed an informal observation report rating the lesson "unsatisfactory." (Informal Observation Report, attached as Ex. WW to Dandridge Decl.) Plaintiffs argue that this observation was undertaken for the sole purpose of assigning Hightower her fourth "unsatisfactory" rating, as Principal Zanca had previously told Riccardo that "the magic number" for firing a teacher was four "unsatisfactory" ratings. (Pl. 56.1 ¶ 367.)
On June 13, 2013, Hightower received an "unsatisfactory" rating for her annual performance, and Principal Zanca recommended that her probationary service be discontinued. (Def. 56.1 ¶ 154.) Superintendent Mendez initially agreed with Zanca's recommendation, but on June 14, 2013, he sent a letter to Hightower indicating that he would determine whether her probationary status would be discontinued by July 17, 2013. (Def. 56.1 ¶¶ 156, 397.) On August 21, 2013, weeks after his self-imposed July deadline, the Superintendent determined that Hightower's services should not be discontinued because she was teaching a subject matter outside of her licensed subject area, which was English as a Second Language. (Letter of Juan Mendez dated August 21, 2013, attached as Ex. AAA to Dandridge Deck; Mendez Dep., Ex. I at 241-42.) Plaintiffs claim that this change was only made because Hightower filed complaints with the DOE's Office of Equal Opportunity ("OEO") and the EEOC on June 24, 2013, and August 16, 2013, respectively. (See Pl. 56.1 Responses ¶¶ 329, 338.) The parties dispute the precise date when Hightower's discontinuance was actually reversed. (Pl. 56.1 Responses ¶¶ 158-59.)
In 2011, James was hired as a tenured teacher to develop the Pan American theater program and provide a creative outlet for English language learners. (Def. 56.1
Plaintiffs contend that Principal Zanca engaged in a calculated effort to sabotage the theater program, while Defendants claim her actions were motivated by a concern over the excessive costs associated with James' theater program. (Def. 56.1 ¶ 184-85; Pl. 56.1 Responses ¶ 193; Zanca Dep., Ex. 9 at 54-56.)
James testified that Principal Zanca generally expressed "[e]ffusive warmth" and was "very congenial [and] engaged" with members of the staff who were not African American, but that James was treated antagonistically and dismissively. (James Dep., Ex. 24 at 26-29, 40, 53, 143-44.) For instance, James testified that on multiple occasions Principal Zanca said "[o]kay, okay, okay" when James attempted to discuss the theater program, which James interpreted as disinterest in her work. (Def. 56.1 ¶¶ 180, 182.) James also testified that Principal Zanca berated her for taking a pre-approved day off. (Pl. 56.1 Responses ¶ 204.) As a result of the work environment at Pan American, James suffered from depression and anxiety and sought psychiatric treatment. (Treatment Notes, attached as part of Ex. 117 to Hayes-Deats Decl.)
Plaintiffs also allege that Principal Zanca tried to sabotage the first theater production of the school year. James testified that on the day of the February 2013 Winter theater production, Pan American's school secretary, Vivian Fonseca, informed James that the school would not pay for the production's sound, lighting, and photography vendors. (Def. 56.1 ¶ 184.) Fonseca testified that Principal Zanca instructed her to inform James that they could not pay these consultants. (Deposition of Vivian Fonseca dated Sept. 12, 2017 ("Fonseca Dep."), attached as Ex. 26 to Hayes-Deats Deck., at 44-45.) James claims that the performance only went forward because she agreed to pay the consultants out of her own pocket, although the school did ultimately pay the costs. (Def. 56.1 ¶ 187; James Dep., Ex. 24 at 56.)
In March 2013, Principal Zanca sent a memo to James, stating that the theater program would have to serve students out-side of James' class, that the budget would have to be approved by the administration, and that the number of rehearsal hours would be reduced. (Def. 56.1 ¶ 193.) Around this time, Principal Zanca informed Iserman that she had not approved the spring theater program because of the investigation into James' "excessive" per session time. (Email of Minerva Zanca dated March 15, 2013, attached as part of Ex. QQQ to Dandridge Decl.) On April 3, 2012, Principal Zanca, Riccardo, and James met to discuss the future of the Pan American theater program. (Def. 56.1 ¶ 194.) James expressed concern that it would be very difficult, if not impossible, for children who were still learning English to memorize their lines and their blockings with such limited rehearsal preparation. (James Dep., Ex. 24 at 170-71.)
James also testified that during the April 3, 2013 meeting, she informed Principal Zanca that she had heard from a parent that Zanca had disparaged James for spending too much money on the theater production. (James Dep., Ex. 24 at 107-08.) When confronted with this, Principal Zanca told James that "[i]t looks like that parent needs to be removed from the SLT committee." (James Dep., Ex. 24 at 106-08.)
On June 26, 2013, James was interviewed by an investigator from the OSI in connection with their investigation into possible misconduct by Riccardo. (Def. 56.1 ¶ 209.) The parties dispute whether Riccardo was the sole target of the OSI's investigation or whether James was also a target. (Pl. 56.1 Responses ¶ 209.)
In June 2013, for the first time, James learned of Principal Zanca's alleged racist remarks. (Def. 56.1 ¶ 286.) In the Fall of the 2013-14 school year, James transferred to the Manhattan Teacher Lab High School ("MTLHS") as a theater teacher. (Def. 56.1 ¶ 213.) James testified that she transferred due to the tense atmosphere at Pan American and out of fear of working with Principal Zanca. (James Dep., Ex. 24 at 123, 139-43.) James worked at MTLHS until the school closed in June 2015, at which point she transferred to Cascade High School, where she worked for a month before going out on medical leave. (Def. 56.1 ¶ 215.) James is still currently employed with the DOE. (James Dep., attached as Ex. C to Dandridge Decl., at 16-17.)
Formal administrative investigations of discrimination by DOE employees are conducted by the OEO and the OSI. (Def. 56.1 ¶ 327.) Flanagan filed a complaint with the OEO on June 3, 2013, and James and Hightower filed complaints on June 24, 2013. (Def. 56.1 ¶¶ 328-30.)
On July 3, 2013, Superintendent Mendez forwarded press coverage related to Riccardo's allegations to other DOE employees and stated that the "allegations are unfounded. AP Riccardo is attempting to retaliate for receiving an unsatisfactory rating and discontinuance . . . The principal deserves our support." (Email of Juan Mendez dated July 3, 2013, attached as part of Ex. 53 to Hayes-Deats Decl.) Five
On July 9, 2013, after learning that Plaintiffs were considering filing external complaints, Flanagan, Hightower, and James were advised that an external filing would result in the administrative closure of their OEO reports, per DOE policy. (Def. 56.1 ¶ 331; Deposition of Theresa Wade dated June 1, 2017 ("Wade Dep."), attached as Ex. 55 to Hayes-Deats Decl., at 51-52.) Plaintiffs were informed that if they did not advise the OEO by July 26, 2013, whether they intended to proceed with the OEO investigation, their OEO cases would be administratively closed. (Memorandum of Theresa B. Wade dated Aug. 13, 2013 ("OEO Investigation Memo"), attached as Ex. VVVV to Dandridge Decl., at USA0487-88.) On July 22, 2013, James and Flanagan each separately informed the OEO that they intended to file a complaint with an external agency. (OEO Investigation Memo at USA0487-88.) Hightower failed to respond to the OEO's inquiries regarding the status of her complaint. (OEO Investigation Memo at USA0488.)
On July 23, 2013, the OEO interviewed Riccardo as a witness to the complaints of discrimination, and that same day the OEO initiated a complaint on Riccardo's behalf. (Def. 56.1 ¶¶ 332-33.) On August 13, 2013, the OEO administratively closed its investigation into the discrimination complaints filed by Flanagan, Hightower, and James. (Def. 56.1 ¶ 334.)
Under Rule 56 of the Federal Rules of Civil Procedure, a court will "grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); accord Celotex Corp v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of identifying "the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The opposing party must then come forward with specific materials establishing the existence of a genuine dispute. Id. Where the nonmoving party fails to make "a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment must be granted. Id. at 322, 106 S.Ct. 2548.
In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Smith v. Barnesandnoble.com, LLC, 839 F.3d 163, 166 (2d Cir. 2016). However, the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," and summary judgment may be granted where the nonmovant's evidence is conclusory, speculative, or not significantly probative. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. Courts should be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question,"
Defendants argue that Plaintiffs improperly rely on hearsay statements to defeat their summary judgment motion. Specifically, Defendants argue that portions of the following exhibits, each of were attached to the Hayes-Deats Declaration, should be disregarded by the Court: 13, 14, 17, 23, 29, 46, 47, 48, 50, 51, 52, 56, 76, 77, 78, 79, and 117. (Defendants' Reply Memorandum of Law in Response to Plaintiff USA's Opposition and in Further Support of Their Omnibus Motion for Partial Summary Judgment ("Def. Reply USA Mem.") at 1-2.
Hearsay is a statement that "(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Fed. R. Evid. 801(c). To raise an issue of fact, evidence submitted in connection with a summary judgment motion must be admissible or contain evidence that will be presented in a form admissible at trial. Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). "[A] court will not entertain inadmissible hearsay unsubstantiated by any other evidence in ruling on a summary judgment motion." Mattera v. JPMorgan Chase Corp., 740 F.Supp.2d 561, 566 n.2 (S.D.N.Y. 2010) (citing H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991)). However, "material relied on at summary judgment need not be admissible in the form presented to the district court. Rather, so long as the evidence in question will be presented in admissible form at trial, it may be considered at summary judgment." Smith v. City of New York, 697 F. App'x 88, 89 (2d Cir. 2017) (internal quotation marks omitted) (quoting Santos, 243 F.3d at 683).
Of the exhibits identified by Defendants, the Court has relied on facts drawn from only the following exhibits: Ex. 17 (Riccardo Statement), Ex. 29 (Deposition of Lourdes Gonzalez dated May 18, 2017), Ex. 47 (SCI Investigation Report), Ex. 48 (Memorandum of Theresa Wade dated Feb. 10, 2014 ("OEO Mem."), and Ex. 117 (Treatment Notes). Accordingly, the remaining exhibits need not be addressed.
The portions cited to and relied upon in this opinion are properly relied upon because the relevant factual contents of those exhibits may be testified to at trial by Riccardo, Gonzalez, Zanca, and James. See Smith, 697 F. App'x at 89 (documents containing hearsay evidence could be relied upon because they could be "reduced to admissible form at trial through [] testimony"). Accordingly, at this time, the Court need not resolve whether any of the documents in question fall within any of the potentially applicable hearsay exceptions.
Hightower and James allege that they were discriminated against on the basis of their race in violation of Title VII; 42 U.S.C. § 1981; the NYSHRL, N.Y. Exec. Law § 290, et seq.; and the NYCHRL, N.Y.C. Admin. Code § 8-80.7. Defendants argue that the following claims should be dismissed: James and Hightower's Title VII claims against the DOE, their § 1981 and NYSHRL claims against Principal Zanca, and their § 1981 claims against Superintendent Mendez.
In cases where there is no evidence of direct discrimination, claims of disparate treatment in violation of federal and state laws are analyzed in accordance with the three-part framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Dawson v. Bumble & Bumble, 398 F.3d 211, 216-17 (2d Cir. 2005), overruled on other grounds by Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc) (overruling Dawson in part and holding that sexual orientation discrimination is a subset of sex discrimination for purposes of Title VII). Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005). To establish a prima facie case of discrimination, a plaintiff must show that "(1) [she] is a member of a protected class; (2) [she] is competent to perform the job or is performing [her] duties satisfactorily; (3) [she] suffered an adverse employment decision or action; and (4) the decision or action occurred under circumstances giving rise to an inference of discrimination based on [her] membership in the protected class." McAllister v. Quik Park, 661 F. App'x. 61, 63 (2d Cir. 2016) (quoting Dawson, 398 F.3d at 216). The Second Circuit has characterized plaintiff's prima facie burden as "minimal" and "de minimis." Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005) (quoting Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001)).
Once the plaintiff has established a prima facie case, the burden shifts to the defendant to produce evidence "that the adverse employment actions were taken `for a legitimate, nondiscriminatory reason.'" St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). If the defendant articulates a non-discriminatory rationale for its employment decision, the burden shifts back to the plaintiff to show that the defendant's proffered explanation is a pretext for unlawful discrimination by a preponderance of the evidence. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); St. Mary's Honor Center, 509 U.S. at 508, 113 S.Ct. 2742. Discrimination claims under the NYSHRL are analyzed under the same framework. See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010).
Defendants do not deny, for purposes of summary judgment, that Hightower and James are members of a protected class or
A plaintiff sustains an adverse employment action if she endures a "materially adverse change" in the terms or conditions of employment. Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2d Cir. 2000). "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Id. (alteration in original) (quoting Crady v. Liberty National Bank and Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993)). An adverse employment action is measured by the same standard under Title VII and the NYSHRL. See United States v. New York City Department of Education (DOE I), No. 16 Civ. 4291, 2017 WL 435940, at *8 (S.D.N.Y. Jan. 31, 2017), report and recommendation adopted, 2017 WL 1319695 (S.D.N.Y. April 4, 2017).
As noted above, the only element of Hightower's prima facie case disputed by Defendants is whether she suffered an adverse employment action. Plaintiffs contend that the DOE's decision to discontinue Hightower's employment constituted an adverse employment action, even though that discontinuance was later reversed. (Memorandum of Law in Opposition to Defendants' Omnibus Motion for Partial Summary Judgment ("Pl. USA Mem.") at 44-45; Plaintiffs' Memorandum of Law in Opposition to Defendants' Omnibus Motion for Partial Summary Judgment ("Pl. James & Hightower Mem.") at 14-15.)
Plaintiffs argue that the DOE's discontinuance of Hightower and belated reversal constitute a notice of termination, qualifying as an adverse employment action. Defendants argue there was no adverse employment action because Hightower was only recommended for discontinuance and the decision was ultimately reversed. This is a material issue of dispositive fact precluding summary judgment.
First, the circumstances surrounding Hightower's purported "discontinuance" and reversal of that action could be reasonably interpreted to give rise to actionable conduct. In Hightower's annual performance review on June 13, 2013, Principal Zanca rated her as unsatisfactory and recommended that her service be discontinued. (Annual Professional Performance Review and Report on Probationary Service of Pedagogical Employee
The DOE human resources director testified that discontinuances were typically entered by the end of the school year, approximately around June 30. (Deposition of Tene Williams dated Aug. 9, 2017 ("Williams Dep."), attached as Ex. 102 to Hayes-Deats Decl., at 153-54.) Meanwhile, it was not until October 30, 2013, well after the school year began, that Principal Zanca informed human resources that Hightower's rating "will be" reversed from "unsatisfactory" to "satisfactory" and that "her discontinuance will be reversed." (Email of Minerva Zanca dated Oct. 30, 2013, attached as Ex. BBB to Dandridge Decl.) This language suggests that Hightower in fact had been discontinued, and Defendants are unable to point to any evidence in the record indicating that the reversal was actually effected before October. A DOE administrator testified that Hightower's status within the DOE's system, at the time he changed her rating for the year, was marked as "DPD," indicating probationary discontinuance. (Williams Dep. at 154-56.) Hightower appealed her discontinuance, but never followed up with the DOE to see if her rating was changed. (Def. 56.1 ¶ 159; Hightower Dep. at 165.)
A juror could reasonably interpret from these facts that Hightower was either discontinued or that Defendants' actions constituted a notice of termination. The parties do not dispute that a discontinuance would qualify as an adverse action. The issuance of a notice of termination may also "constitute[ ] an adverse employment action." Shultz v. Congregation Shearith Israel of City of New York, 867 F.3d 298, 305 (2d Cir. 2017). Rescission of a termination does not negate the claim for relief, although it can impact the calculation of damages. Id. at 306-07. While the Second Circuit has noted that "in some circumstances the period of time between a notice of firing and its rescission may be so short as to render the termination de minimis," that is not the case here. Id. at 306. The period of time between July and October was more than sufficient for Hightower to experience the "bad feelings and anxiety" associated with termination of employment. Id. at 307. And, as noted above, the school year had already started in September.
Plaintiffs also argue that Hightower was constructively discharged from Pan American and therefore suffered an adverse employment action. The Court agrees that there is sufficient evidence by which a reasonable juror could find that Hightower was constructively discharged.
"To succeed on a constructive discharge claim, an employee must `show both (1) that there is evidence of the employer's intent to create an intolerable environment that forces the employee to resign, and (2) that ... a reasonable person would have found the work conditions so intolerable that he would have felt compelled to resign.'" Makinen v. City of New York, 722 F. App'x 50, 52 (2d Cir. 2018) (alteration in original) (quoting Shultz, 867 F.3d at 308). To demonstrate intent, a plaintiff may show that the employer "acted with specific intent to prompt employees' resignations" or simply that the employer acted deliberately, rather than negligently. Petrosino v. Bell Atlantic, 385 F.3d 210, 229-30 (2d Cir. 2004). Turning to the second prong, working conditions qualify as intolerable when, viewed as a whole, they are "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Terry v. Ashcroft, 336 F.3d 128, 152 (2d Cir. 2003) (quoting Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 89 (2d Cir. 1996)); accord Makinen, 722 F. App'x at 52. The Second Circuit has held that the constructive discharge "standard is higher than the standard for establishing a hostile work environment." Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 725 (2d Cir. 2010).
As to the first element, Plaintiffs put forth evidence indicating that Principal Zanca was intentionally building a record of unsatisfactory observation reports in order to oust Hightower and Flanagan. (Riccardo Statement at 1.) It is undisputed that of the eight probationary teachers evaluated by Principal Zanca at the end of the 2012-13 school year, only Flanagan and Hightower were discontinued, while the non-African American teachers either were granted tenure or had their probationary status extended. (Def. 56.1 ¶¶ 131-33, 135; Riccardo Dep., Ex. E at 42-43.) Indeed, Principal Zanca never gave an unsatisfactory lesson rating to any probationary, untenured teachers other than Flanagan and Hightower. (Declaration of Minerva Zanca dated April 27, 2018 ("Zanca Decl."), attached as Ex. LL to Dandridge Decl., ¶¶ 5-14.) Riccardo testified that Principal Zanca explicitly told him not to provide Hightower with any support or make her a better teacher. (Riccardo Statement at 1; Riccardo Dep., Ex. E at 33, 43-44.) A second Pan American employee corroborated Riccardo's version of the facts, testifying that Principal Zanca only provided Hightower with coaching in order to "cover[] her tracks" when she fired her. (Deposition of Lourdes Gonzalez dated May 18, 2017 ("Gonzalez Dep."), attached as Ex. 29 to Hayes-Deats Decl., at 12, 30-31.) Additionally, as discussed above, Zanca and Superintendent Mendez ultimately recommended Hightower's dismissal. This evidence could reasonably be interpreted as proof of deliberate intent. Hightower therefore meets the requirements for establishing the first prong of a constructive discharge claim.
Hightower testified that the atmosphere at Pan American was ultimately the motivating factor behind her decision to switch career tracks. (Hightower Dep., Ex. B at 49.) While it is true that Hightower never directly heard Principal Zanca say anything discriminatory, she nonetheless sensed "coldness" from Principal Zanca and "[c]ouldn't understand why [she] was receiving the ratings that [she] was." (Hightower Dep., Ex. B at 167-70, 193.) The inference that the conditions were intolerable is strengthened by the fact that James also chose to transfer from Pan American, even though she was tenured and therefore could not be terminated.
A reasonable factfinder could therefore conclude that an individual in Hightower's position would feel she was receiving poor ratings regardless of her actual performance, that she was being pushed out from her position, and in response, be compelled to find alternative employment. See Chertkova, 92 F.3d at 90 (finding that "a reasonable person in [plaintiff's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of immediate termination, that she was compelled to leave"). Accordingly, Defendants are not entitled to summary judgment with respect to Hightower's discrimination claims.
As with Hightower, there is no dispute that James meets the requirements for the first two prongs of her prima facie case. Plaintiffs argue that the adverse employment action requirement is met on two grounds: first, that James' per-session pay was reduced, and second, that she was constructively transferred because Principal Zanca's conduct left with her no reasonable choice but to leave Pan American. As with Hightower, James has presented sufficient evidence to survive summary judgment on her discrimination claims.
Plaintiffs contend that the reduction in the number of approved rehearsal
In April 2013, Principal Zanca informed James that due to budgetary restraints, the rehearsal time for the theater program would be reduced to four hours per week. (4/8/13 Zanca Letter.) Plaintiffs claim that the prior year, James received between twelve and eighteen hours of per-session work each week. (Pl. 56.1 ¶ 347.) This weekly reduction constituted a decrease in James' per-session hours and therefore her compensation for the school year.
In her testimony, James acknowledged that neither former Principal Barros nor Principal Zanca guaranteed she would be able to work the same amount of per session hours in the 2012-13 school year that she had worked during the prior year. (James Dep., Ex. C at 69-73.) Riccardo testified, however, that there was money in the budget specifically earmarked for the theater program, which Principal Zanca redirected to other programs. (Riccardo Statement at 2.) Plaintiffs have also put forth some evidence that Pan American had funds to roll over into the following school year. (Email of Minerva Zanca dated April 16, 2013, attached as part of Ex. 28 to Hayes-Deats Decl.)
Defendants argue that the reduction in James' pay was caused by her own refusal to apply for the reduced per-session hours that were available (Def. Reply James & Hightower Mem. at 3), while Plaintiffs contend that Principal Zanca reduced the rehearsal hours in order to sabotage James' theater program (Pl. 56.1 Responses ¶ 193). While it is true that James did not apply for the limited per-session hours that were available, doing so would still have resulted in reduction of her pay, and applying would have required her to put on a compromised theater production that she did not believe students would want to participate in. (James Dep., Ex. 24 at 170-71.) This claim is also distinguishable from cases where courts have found that loss of opportunities for per-session time do not qualify as adverse actions unless the plaintiff actually applies and is denied, because James was clearly qualified for the position and unequivocally expressed her interest in the work to her supervisors. See, e.g., Sotomayor v. City of New York, 862 F.Supp.2d 226, 256 (E.D.N.Y. 2012) (no adverse employment action where plaintiff did not apply for per-session work and nothing in the record indicated she would have gotten the job); Spaulding v. New York City Department of Education, No. 12 CV 3041, 2015 WL 12645530, at *36 (E.D.N.Y. Feb. 19, 2015), report and recommendation adopted, 2015 WL 5560286 (E.D.N.Y. Sept. 21, 2015) (same).
Plaintiffs' argument is further bolstered by the fact that during the 2013-14 school year, after James departed Pan American, Principal Zanca approved 300 per-session hours for the theater program. (Zanca Dep., Ex. 9 at 204.) Plaintiffs claim this funding is equal to approximately ten hours of rehearsal per week — six hours more per week than Principal Zanca provided for during the spring semester of the prior year when James was still employed at Pan American. (Pl. 56.1 Responses ¶ 219.) In short, there is evidence by which a reasonable juror could find that an adverse employment action was taken against James.
Plaintiffs also argue that James' transfer from Pan American to MTLHS, another school within the DOE network, constituted an involuntary transfer and qualified as an adverse employment action. In his decision on Defendants' earlier motion to dismiss, the Honorable James C. Francis IV, United States Magistrate Judge, held, "Although establishing that working conditions are so intolerable that a reasonable person would feel compelled to leave is a demanding standard, the allegations here are extreme [and] a reasonable person in Ms. James' position might feel compelled to transfer. . . ." DOE I, 2017 WL 435940, at *8 (internal quotation marks and citations omitted) (quoting Pryor v. Jaffe & Asher, LLP, 992 F.Supp.2d 252, 262 (S.D.N.Y. 2014)). Accordingly, it is law of the case that James may bring a constructive involuntary transfer claim if (1) she was discriminated against to the point that working conditions were so intolerable that a reasonable person in her shoes would feel compelled to transfer; and (2) her transfer created a materially significant disadvantage in her working conditions. DOE I, 2017 WL 435940, at *8.
As to the working conditions at Pan American, Plaintiffs argue that Principal Zanca "ruthlessly targeted" James by, among other things, attempting to cancel the February 2013 production at the last minute, reducing her rehearsal hours and thereby effectively cancelling the Spring performance, reducing James' per-session pay, disparaging James to the parents of her students, initiating an OSI investigation into James' per-session hours, berating James for taking a pre-approved day off, and speaking to her in a dismissive and condescending manner. (Pl. James & Hightower Mem. at 5.) Plaintiffs claim that these efforts were part of a larger scheme to rid Pan American of all of its African-American teachers. During this same period, multiple Pan American employees also reported that Principal Zanca made racially derogatory remarks about the other Pan American African-American teachers.
James testified that she was "devastated and heartbroken" over the environment at Pan American, that it was "very uncomfortable" to work with a supervisor who described African Americans as gorillas, and as a result, she decided it would be "unbearable" to return to the school. (James Dep., Ex. 24 at 123-24.) A jury could reasonably find that Principal Zanca's purported efforts to eliminate, or at least diminish the theater program operated by James, coupled with her offensive remarks, would reasonably compel a person to transfer to a different school.
The remaining issue then is whether James' transfer led to a materially significant disadvantage in the terms and circumstances of her employment. A disadvantage can include "a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation." Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004) (alteration in original) (quoting Galabya, 202 F.3d at 640); see also Lore v. City of Syracuse, 670 F.3d 127, 170 (2d Cir. 2012) ("[T]he transfer of an employee from an elite position to one that is less prestigious . . . with little opportunity for professional growth is sufficient to permit a jury to infer that the transfer was a materially adverse employment action." (internal quotation marks omitted) (alteration in original) (quoting de la Cruz v. New York City Human Resources Administration, 82 F.3d 16, 21 (2d Cir. 1996))). Plaintiffs argue that MTLHS was a smaller school that was scheduled to close the following year, and consequently, James' new position there had a lower
Those arguments, however, are only partially supported by the record. James testified that at MTHLS, she had the opportunity to work with a "fantastic" administrator to revitalize the school's theater program. (James Dep., Ex. Cat 122-23, 131.) And while it is true that MTHLS was scheduled to close, and did indeed close, James was able to transfer again to another school within the DOE system. (Def. 56.1 ¶¶ 213-15.) James has therefore not put forth any facts indicating that she experienced professional stagnation as a result of her transfer.
James' other argument fares a little bit better. She argues that she was materially disadvantaged because she received fewer per-session hours and thus a lower salary at MTHLS. When asked whether she was "allowed to spend the same amount of money [at MTHLS compared to] when you were at Pan American," James testified, "It was less, it was like two or three hundred hours." (James Dep., Ex. C at 122-23.) During that same year, Principal Zanca approved 300 per-session hours for the Pan American theater program. (Zanca Dep., Ex. 9 at 204.) James' assertion that she worked only "two or three hundred hours" after transferring from Pan American is vague. If she worked three hundred per-session hours at MTHLS, then her per-session was not reduced. But if James worked less than three hundred hours, a reasonable juror could conclude, depending on the extent of the reduction, that James incurred a decrease in her compensation.
It is a close call as to whether James has met her burden of presenting an adequate prima facie showing of a constructive discharge, but at the summary judgment stage the Court is required to "draw all permissible factual inferences" in plaintiffs favor. See Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012). Accordingly, Defendants' motion for summary judgment on James' discrimination claims, including constructive discharge, should be denied.
Defendants have also moved for summary judgment on James' hostile work environment claims. This portion of Defendants' motion should be denied as well.
To survive a motion for summary judgment, a plaintiff claiming that she was the victim of an unlawful hostile work environment in violation of Title VII, § 1981, and the NYSHRL must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Littlejohn v. City of New York, 795 F.3d 297, 320-21 (2d Cir. 2015) (quoting Harris v. Forklift System, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)); accord Armstrong v. Metropolitan Transportation Authority, No. 07 Civ. 3561, 2015 WL 992737, at *2 (S.D.N.Y. March 3, 2015).
Making a "hostility" determination entails examining the totality of the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the victim's performance. Hayut v. State University of New York, 352 F.3d 733, 745 (2d Cir. 2003) (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). Plaintiff is not required to demonstrate that her race was the only motivating factor; rather she need only show that "a reasonable fact-finder
If the harassing employee is a supervisor and no "tangible employment action is taken," then the employer may escape liability by establishing as an affirmative defense "that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided." Vance v. Ball State University, 570 U.S. 421, 424, 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013).
Here, the harassing employee, Principal Zanca, was James' supervisor, and Defendants have not argued that the DOE either exercised reasonable care to prevent the harassing behavior or that James failed to take advantage of any corrective opportunities. Defendants instead argue that summary judgment must be granted on James' hostile work environment claims because the alleged acts are neither severe nor pervasive enough to constitute an objectively hostile work environment. (Def. Mem. at 34.)
With respect to the requisite subjective component, James clearly believed herself to be working in a hostile environment. She testified that while Principal Zanca was very friendly and professional with other staff members, with James she was "very abrasive and dismissive." (James Dep., Ex. 24 at 23.) Even before James was aware of the Principal's racist remarks, James sought mental health treatment in connection with anxiety over her work, and after she became aware of those remarks, she felt compelled to leave behind a theater program she had built and nurtured from inception. (See James Dep., Ex. 24 at 123-24; Treatment Notes at 1.)
As to the objective component, "[f]or racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity." Schwapp, 118 F.3d at 110 (quoting Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986)). Overall, "the quantity, frequency, and severity of th[e] slurs" at issue are to be "considered cumulatively in order to obtain a realistic view of the work environment." Id. at 110-11 (internal quotation marks omitted) (first quoting Vore v. Indiana Bell Telephone Co., 32 F.3d 1161, 1164 (7th Cir.1994), then quoting Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 444 (7th Cir. 1994)). All of Principal Zanca's comments were alleged to have taken place during the same school year. The nature of these comments is also quite severe. As the Fourth Circuit Court of Appeals has found, the use of the word "monkey" to describe a human being's physical appearance, as Principal Zanca allegedly did, "goes far beyond the merely unflattering; it is degrading and humiliating in the extreme." Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001). Defendants emphasize that James did not actually overhear any racist comments and that none were directed at her. But racist comments heard secondhand rather than directly are still probative of a hostile work environment and should not be ignored for the purposes of the Court's analysis. See Schwapp, 118 F.3d.at 111 ("The mere fact
Defendants also argue that in ascertaining evidence of a hostile work environment, the Court should not consider the facially race-neutral incidents relied upon by Plaintiffs, such as Principal Zanca's decision to reduce the budget for the theater program. The Court finds that argument unpersuasive and is unable to conclude as a matter of law that these incidents should not be considered. See Raniola v. Bratton, 243 F.3d 610, 621-22 (2d Cir. 2001) (facially neutral incidents may be considered as part of the totality of circumstances if circumstantial evidence indicates that the adverse treatment was suffered as a result of a protected characteristic). Principal Zanca's racially charged statements combined with her treatment of all three African-American teachers at Pan American permit an inference that her facially neutral acts were racially motivated.
The record does contain evidence that conflicts with James' claim. For instance, James received a "satisfactory" annual performance rating and two "satisfactory" observation reports. (Def. 56.1 ¶¶ 170-77.) Unlike both Flanagan and Hightower, however, James was a tenured teacher, and therefore was not subject to the same evaluation process as probationary teachers. (Def. 56.1 ¶ 26.)
Reasonable jurors may disagree about whether the facts above constitute a hostile work environment, therefore rendering summary judgment inappropriate. See Spence v. Bukofzer, No. 15 Civ. 6167, 2017 WL 1194478, at *8 (S.D.N.Y. March 30, 2017) (denying defendant's motion for summary judgment against an African-American plaintiff's hostile work environment claim where acts included unfavorable evaluations, accusations of lying, unfavorable assignments, demotions and salary decreases, and derogatory remarks, including the supervisor referring to black employees as "monkeys" and "slaves"); Fisher v. Mermaid Manor Home for Adults, LLC, 192 F.Supp.3d 323, 329 (E.D.N.Y. 2016) (denying defendant's motion for summary judgment against an African-American plaintiff's hostile work environment claim where a co-worker posted social media comparing plaintiff to a fictional chimpanzee). Accordingly, James' hostile work environment claims should not be dismissed.
Defendants have moved for summary judgment on the aiding and abetting claims of Riccardo, Hightower, and James. Section 296(6) of the NYSHRL provides that "[i]t shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article or to attempt to do so." The NYCHRL contains a similar liability provision. See NYCHRL § 8-107(6). The same standards of analysis used to evaluate aiding and abetting claims applies to claims brought under both the NYCHRL and the NYSHRL "because the language of the two laws is `virtually identical.'" Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004) (quoting Dunson v. Tri-Maintenance & Contractors, Inc., 171 F.Supp.2d 103, 113-14 (E.D.N.Y. 2001)).
Under these provisions, individual defendants who "actually participate[ ] in the conduct giving rise to a discrimination claim may be held personally liable." Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995). But without an
All NYCHRL and the NYSHRL claims brought by Riccardo, Hightower, and James against Superintendent Mendez and the DOE were dismissed in prior orders for failure to file a notice of claim.
Defendants have moved for summary judgment on Hightower's, James', and Riccardo's retaliation claims. Hightower's and James' retaliation claims should be dismissed for failure to identify an adverse action that post-dates the Plaintiffs' protected activity. Riccardo's claims, however, survive this motion.
Retaliation claims under Title VII, the NYSHRL, and the NYCHRL, like disparate treatment claims, are analyzed using the three-part test outlined in McDonnell Douglas.
In order to make out a prima facie case of retaliation, the plaintiff must show: "(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse action; and (4) a causal connection between the protected activity and the adverse employment action." Id. at 164; see also Mayers v. Emigrant Bancorp, Inc., 796 F.Supp.2d 434, 445 (S.D.N.Y. 2011). "The plaintiff's burden in this regard is `de minimis,' and `the court's role in evaluating a summary judgment request is to determine only whether proffered admissible evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive.'" Hicks, 593 F.3d at 164 (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)). "It is a burden of production, not persuasion, and involves no credibility assessments." Whethers v. Nassau Health Care Corp., 956 F.Supp.2d 364, 375 (E.D.N.Y. 2013) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
"The term `protected activity' refers to action taken to protest or oppose
To satisfy the fourth prong of a prima facie case, the plaintiff must show that the retaliation was a "but-for" cause of the adverse action, and not simply a substantial or motivating factor in the employer's decision. University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 360, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013). This showing of "`but-for' causation does not require proof that retaliation was the only cause of the employer's action, but only that the adverse action would not have occurred in the absence of the retaliatory motive." Zann Kwan v. Andalex Group LLC, 737 F.3d 834, 846 (2d Cir. 2013). "Proof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon v. New York City Board of Education, 232 F.3d 111, 117 (2d Cir. 2000).
"Once the plaintiff has established a prima facie showing of retaliation, the burden shifts to the employer to articulate some legitimate, non-retaliatory reason for the employment action." Zann Kwan, 737 F.3d at 845. "After the defendant has articulated a non-retaliatory reason for the employment action, the presumption of retaliation arising from the establishment of the prima facie case drops from the picture." Id. If the defendant establishes a non-retaliatory motive, the plaintiff may still prevail by demonstrating that the stated rationale is pretextual. Jute, 420 F.3d at 173, 179-80. "The plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action." Weinstock v. Columbia University, 224 F.3d 33, 42 (2d Cir. 2000) (internal quotation and alteration marks omitted) (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996)). A plaintiff may prove a retaliatory motive by "demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action." Zann Kwan, 737 F.3d at 846.
The parties agree that Hightower and James both participated in protected
Defendants argue that Hightower's retaliation claims must be dismissed, however, because no adverse employment action took place after June 24, 2013. Plaintiffs have not responded to this portion of Defendants' argument. Based upon a review of the record, the Court agrees with Defendants.
Principal Zanca's recommendation of Hightower's discontinuance took place on June 13, 2013, eleven days prior to Hightower's protected activity. It is axiomatic that an adverse employment action cannot serve as the basis for a retaliation claim if the retaliatory action took place prior to the protected activity. Cayemittes v. City of New York Department of Housing Preservation & Development, 974 F.Supp.2d 240, 262 (S.D.N.Y. 2013), aff'd, 641 F. App'x 60 (2d Cir. 2016). Without a causal connection between the filing of her OEO complaint and an adverse employment action, Hightower is unable to satisfy the final prong of her prima facie case, even under the more liberal NYCHRL standard. See Melman v. Montefiore Medical Center, 98 A.D.3d 107, 128-29, 946 N.Y.S.2d 27, 42-43 (1st Dep't 2012) (granting summary judgment on NYCHRL retaliation claim because the alleged adverse action was a continuation of Defendants' course of conduct before the protected activity took place). Accordingly, Defendants' motion for summary judgment dismissing Hightower's retaliation claims should be granted.
Defendants argue that James' retaliation claims, like Hightower's, warrant dismissal because no adverse actions were taken after she filed her OEO complaint on June 24, 2013. James contends that in retaliation for her OEO complaint, Principal Zanca took two separate adverse and material actions against her. The Court finds that neither of these alleged acts qualifies as an adverse action.
First, James claims that as a means of forcing James' resignation from Pan American, Principal Zanca lied that she witnessed James inform the press that she had resigned. (Pl. 56.1 Responses ¶ 208.) To support this claim, James relies solely on a series of emails Principal Zanca wrote to DOE officials in July 2013. There, Principal Zanca claimed that James had said on the news that she had resigned, but noted that Principal Zanca had "not received a letter of resignation" and that she "would like to fill her position if she is indeed resigning." (Email of Minerva Zanca dated July 31, 2013, attached as part of Ex. 111 to Hayes-Deats Decl.; see also Email of Minerva Zanca dated July 10, 2013, attached as Ex. 112 to Hayes-Deats Decl.) Plaintiffs argue that these "false statements" clearly create the inference of retaliation. However, even a reading of these emails in the light most favorable to Plaintiffs does not support their interpretation of the facts. Principal Zanca appears to be simply seeking confirmation of whether or not James is returning to Pan American. This cannot reasonably be construed as a retaliatory act, especially when it is not supported by any additional evidence. See Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) ("At the summary judgment stage, a nonmoving party `must offer some hard evidence showing that its version of the events is not wholly fanciful.'" (quoting D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998)).
Plaintiffs have not provided any other factual support for this claim. Deposition testimony must be treated as true for purposes of summary judgment. Daley v. McNeil Consumer Products Co., a division of McNeil-PPC, 164 F.Supp.2d 367, 376 (S.D.N.Y. 2001). But James' testimony about an unidentified document that is not in evidence and which purportedly refers to what someone else said contains multiple levels of inadmissible hearsay. The Court may not consider evidence that would not be admissible at trial. Davis-Bell v. Columbia University, 851 F.Supp.2d 650, 675-76 (S.D.N.Y. 2012) (collecting cases). For instance, "if a deponent states that he overheard another person make a statement, and the deponent would not be allowed to testify at trial as to what the other person said because of the rule against hearsay, the deponent's statement may not be considered on a motion for summary judgment." Id. at 676 (quoting Donovan v. Diplomat Envelope Corp., 587 F.Supp. 1417, 1426 (E.D.N.Y. 1984), aff'd, 760 F.2d 253 (2d Cir. 1985)). James' inadmissible testimony does not raise a triable issue of fact, and cannot sustain her retaliation claims.
This Court previously dismissed Riccardo's NYSHRL and NYCHRL retaliation claims against Mendez and the DOE for failure to file a timely notice of claim. DOE II, 2017 WL 57854, at *1. Riccardo's only remaining retaliation claims are his (1) § 1983 retaliation claims against the DOE, Principal Zanca, and Superintendent Mendez, (2) Title VII retaliation claim against the DOE, and (3) NYSHRL and NYCHRL retaliation claims against Principal Zanca.
To make out the first two elements of his prima facie case, Riccardo must demonstrate that he engaged in protected activity and that Defendants were aware of that activity prior to any adverse action.
Riccardo's July 23, 2013 testimony before the OEO detailing Principal Zanca's conduct unquestionably qualifies as protected activity. See Cruz, 202 F.3d at 566 ("The term `protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination."). Plaintiffs also argue that two additional acts constituted
Plaintiffs claim that Riccardo's decision to award Hightower a "satisfactory" rating constituted a protest of Principal Zanca's discriminatory efforts.
Plaintiffs rely upon Villavicencio v. Gure-Perez, 56 F.Supp.3d 178 (E.D.N.Y. 2014), for the proposition that refusing to follow a supervisor's order to engage in discriminatory conduct can qualify as protected activity. (Plaintiffs' Sur-Reply Memorandum of Law in Further Opposition to Defendants' Omnibus Motion for Partial Summary Judgment ("Pl. Sur-Reply") at 3-4.) Here, as in Villavicencio, there was evidence that racism "played a role in the manner in which [the principal] ran the school," 56 F. Supp. 3d at 189-90, and therefore by refusing to provide African-American teachers with an unjustified "unsatisfactory" rating, Riccardo may have been informally protesting discrimination against his colleagues. Indeed, Principal Zanca referred to Riccardo's action as "sabotage." (Email of Minerva Zanca dated June 10, 2013, attached as Ex. 40 to Hayes-Deats Decl.) Construing the evidence in the light most favorable to Plaintiffs, Principal Zanca could "reasonably have understood[ ] that the plaintiff's opposition was directed at conduct prohibited by Title VII." Galdieri-Ambrosini, 136 F.3d at 292; see also Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2d Cir. 1990) (Title VII protects informal protests of discriminatory employment practices); Krasner v. HSH Nordbank AG, 680 F.Supp.2d 502, 521-22 (S.D.N.Y. 2010) (where the conduct complained lends itself to a reasonable inference of unlawful discrimination, plaintiff does not need to explicitly use "magic words" such as "discrimination"). Accordingly, a reasonable juror could find that Riccardo engaged in protected activity when he rated Hightower's lesson "satisfactory."
Riccardo's June 24, 2013 statement describing Principal Zanca's alleged
As to the third element of Riccardo's prima facie case of retaliation, Plaintiffs identify the following ostensible adverse employment actions: (1) Principal Zanca's recommendation that Riccardo be discontinued; (2) the disciplinary letters Principal Zanca wrote to Riccardo's file on June 18, 2013, and (3) Principal Zanca's marijuana allegations and the subsequent SCI investigation. (Pl. Mem. at 35-36.) To be considered retaliatory, any adverse action would need to have taken place after April 26, 2013 — the earliest date that any Defendants became aware of Riccardo's protected activity.
Plaintiffs claim that Principal Zanca's June 25, 2013 evaluation recommending Riccardo's termination, the two disciplinary letters she issued to his file on June 18, 2013, regarding his insubordination and absenteeism, and the two disciplinary letters Principal Zanca issued to Riccardo's file on May 2, 2013,
Defendants concede that Riccardo's poor performance and absenteeism contributed to the decision to discontinue him. (Def. Reply USA Mem. at 11.) The disciplinary letters and evaluations relating to Riccardo's absences and performances clearly "had a deleterious effect" on Riccardo's employment and constituted an adverse action. Digilov, 2015 WL 685178, at *17.
Defendants argue that Principal Zanca's July 26, 2013 report to the SCI that Riccardo provided marijuana to another employee at Pan American and the resulting SCI investigation do not qualify as an adverse employment action because the investigation had no negative impact on Riccardo's employment with the DOE. (Def. Omnibus Reply Mem. at 12-13.)
The Second Circuit has held that "an employer's investigation may constitute a cognizable retaliatory action ... if
Here, Principal Zanca not only reported that Riccardo brought drugs to school, but during the subsequent investigation, she also alleged that Riccardo was a recovering drug addict and a former member of the Hell's Angels gang. (SCI Investigation Report at SDNY_01047.) A juror could reasonably find that the prospect of derogatory allegations would deter an individual of ordinary firmness from the exercise of his constitutional rights.
Finally, the Court must also consider Defendants' actions in the aggregate, "as even minor acts of retaliation can be sufficiently substantial in gross." Hicks, 593 F.3d at 165 (internal quotation marks omitted) (quoting Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 227 (2d Cir. 2006)). Weighed together, Riccardo's discontinuance recommendation, the disciplinary letters, and the SCI investigation are sufficiently significant to be actionable, materially adverse retaliatory actions.
To make out a prima facie case of retaliation, a plaintiff must provide proof "that the adverse action would not have occurred in the absence of the retaliatory motive." Zann Kwan, 737 F.3d at 846. That is, plaintiff must put forward a triable issue on the question of whether the action was motivated by a desire to retaliate for specific protected activities. He can do so either by direct proof of defendant's retaliatory animus or by indirect circumstantial proof, such as a close temporal connection between the protected activity and the allegedly retaliatory act. Littlejohn, 795 F.3d at 319.
A plaintiff may rely solely on temporal proximity if the protected activity and alleged retaliation occurred "very close" in time. Clark County School District v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (quoting O'Neal v. Ferguson Construction Co., 237 F.3d 1248, 1253 (10th Cir. 2001)). Generally, periods greater than two months are too long to support the inference of causation. Flanagan, 2015 WL 11142630, at *12. In this case, nearly all the protected and adverse actions all took place within a two-month window between June and July. This temporal proximity alone is sufficient to support the inference of causation for the purposes of Riccardo's prima facie case.
Because Riccardo has put forth evidence supporting a prima facie case of retaliation, "[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason" for Defendants' actions. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817.
Defendants claim that their actions were justified due to Riccardo's performance issues, namely: (1) the transcript errors that led to rescission of diplomas for five Pan American seniors; (2) the programming errors that impacted scheduling of students' courses; (3) missing more than 34 days of
As to the SCI investigation, Principal Zanca testified that she was informed of Riccardo's intent to bring drugs to school by another Pan American employee and that as a mandated reporter, she was required to make the report. (Zanca Dep., Ex. G at 262-64.) These are potentially legitimate justifications for the adverse actions taken against Riccardo. See Joseph v. Owens & Minor Distribution, Inc., 5 F.Supp.3d 295, 313 (E.D.N.Y. 2014); Butler v. New York Health & Racquet Club, 768 F.Supp.2d 516, 533-34 (S.D.N.Y. 2011).
Because Defendants have proffered evidence of legitimate, nondiscriminatory reasons for their actions, the burden shifts back to Plaintiffs to show that Defendants' reasons are actually pretext. "A plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action. From such discrepancy, a reasonable juror could conclude that the explanations were a pretext for a prohibited reason." Zann Kwan, 737 F.3d at 845.
As evidence that Principal Zanca's discontinuance recommendation was pretextual, Plaintiffs argue that Zanca "did not raise any of these purposed concerns" until after Riccardo took action against her. (Pl. Mem. at 39.) Plaintiffs point to the fact that the types of transcript and programming errors identified by Principal Zanca in her evaluation were found at "a number of schools [and] had never resulted in discipline, much less discontinuation." (Pl. Mem. at 39 (internal quotation marks omitted).) Also suggestive is the fact that those performance issues were identified in January, but disciplinary measures were not taken against Riccardo until late April. (Def. 56.1 ¶ 257.) And, as late as April 17, Principal Zanca was still writing glowing reviews and recommendations regarding Riccardo's performance. (Email of Minerva Zanca dated April 17, 2013, attached as Ex. 35 to Hayes-Deats Decl.)
Furthermore, Principal Zanca testified that she would initiate a log of support when a teacher was unable to meet their goals. (Zanca Dep., Ex. 9 at 58-59.) Riccardo's log of support is dated June 6, 2013 ¶ the same date that he signed Hightower's "satisfactory" observation. (Riccardo Log.) This raises a strong inference that Principal Zanca's disciplinary measures were retaliatory. Lourdes Gonzalez, a history teacher at Pan American, also testified that Principal Zanca initially liked Riccardo, but that changed after he refused to give Hightower an "unsatisfactory" rating, when "everything just went crazy." (Gonzalez Dep. at 24.) Finally, the disparaging nature of Principal Zanca's statements to the SCI investigator regarding Riccardo's past cast a cloud on her motivation.
The Court finds that these facts constitute evidence from which a reasonable juror could find that Defendants' articulated reasons were a pretext for retaliation. The weaknesses and inconsistencies in Defendants' explanations constitute evidence from which a reasonable juror could find that, but for their desire to retaliate against Riccardo, Defendants would not
These disputed facts, if proven, are sufficient to give rise to the inference that Defendants' actions were retaliatory. The issue should be left for the jury to decide at trial.
Riccardo has also brought a claim for retaliation in violation of his First Amendment rights. Defendants have moved for summary judgment, citing many of the same arguments articulated above.
First Amendment claims are analyzed under the same burden shifting analysis described above. To make out his prima facie case, a "plaintiff asserting a First Amendment retaliation claim must establish that: (1) his speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him; and (3) there was a causal connection between this adverse action and the protected speech." Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015) (internal quotation marks omitted) (quoting Cox v. Warwick Valley Center School District, 654 F.3d 267, 272 (2d Cir. 2011)). Riccardo has set forth evidence to support each of these elements.
For purposes of this motion, Defendants concede that the June 27, 2013 news media coverage, which was based in part on Riccardo's June 24, 2013 statement, constitutes speech protected by the First Amendment. (Def. Mem. at 15.) Defendants argue that Riccardo's claim nonetheless fails because, as with his other retaliation claims, he cannot provide evidence of an adverse employment action or establish a causal connection between any alleged adverse employment action and his protected activity.
An adverse action for the purposes of a First Amendment retaliation case is "conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." Zelnik, 464 F.3d at 225 (internal quotation marks omitted) (quoting Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir. 2004)). Under this "objective" standard, an adverse action must be more than "de minimis" to support a First Amendment retaliation claim. Id. at 226.
The only identified adverse action against Riccardo that post-dates June 27, 2013, is Principal Zanca's July 26, 2013 report and the resulting SCI investigation. As set forth previously, Plaintiffs have raised a triable issue of fact as to whether the investigation qualified as an adverse action. Regardless of whether Riccardo actually experienced negative consequences, a report portraying him as a drug addict who brought drugs in to school "may have resulted in substantial damage to [his] career." Kiernan v. Town of Southampton, 734 F. App'x 37, 42 (2d Cir. 2018) (summary judgment not granted on First Amendment retaliation claim where retaliatory conduct "materially surpassed empty threats" and included drafting of a criminal complaint); see also Zelnik, 464 F.3d at 225-26 ("adverse employment action" has a different meaning in the context of a First Amendment retaliation claim than it does in cases brought under Title VII" and
Evidence of the requisite causal connection is also present. "To demonstrate a causal connection a plaintiff must show that the protected speech [or conduct] was a substantial motivating factor in the adverse [ ] action." Smith v. County of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015) (internal quotation marks omitted) (quoting Cioffi v. Averill Park Central School District Board of Education, 444 F.3d 158, 167 (2d Cir. 2006)). As described above, Riccardo has already met the more onerous causation standard under Title VII. Plaintiffs have therefore raised a triable issue of fact as to whether Riccardo's exercise of his First Amendment rights resulted in retaliation.
Defendants move for summary judgment on all of Riccardo's § 1983 retaliation claims asserted against DOE on the grounds that Plaintiffs cannot establish municipal liability. When a plaintiff seeks to recover against a municipality under § 1983, the plaintiff "must show that the violation of his constitutional rights resulted from a municipal policy or custom." Davis v. City of New York, 75 F. App'x 827, 829 (2d Cir. 2003); see also Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (a municipality may not be sued under § 1983 unless "execution of [the] government's policy or custom. . . inflicts the injury").
The Second Circuit has established a two-pronged test for claims brought against a municipality. First, the plaintiff must prove "the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving [official]."
Defendants have denied the existence of any relevant policy or custom. (Def. Mem. at 12-13.) Meanwhile, Plaintiffs have put forth no facts demonstrating the existence of a documented policy or a custom by the DOE, let alone sufficient facts to establish the existence of a causal connection between the policy and the alleged constitutional deprivations at issue. Accordingly, summary judgment dismissing the § 1983
Defendants argue that Riccardo's § 1983 claims against Superintendent Mendez should be dismissed because the undisputed evidence demonstrates that the Superintendent was not personally involved in the alleged retaliation against Riccardo. Plaintiffs did not address Defendants' arguments. Despite Plaintiffs' inattention to this issue, the Court finds that the claims against Superintendent Mendez should not be dismissed.
"In order to overcome a government official's claim to qualified immunity and establish individual liability under § 1983, a plaintiff must show . . . that the defendant . . . personally violated a plaintiff's constitutional rights . . . ." Raspardo, 770 F.3d at 115 (internal quotation marks omitted) (first alteration in original) (quoting Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 117 (2d Cir. 2004)). Personal involvement can be established by showing any one of several scenarios: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference by failing to act on information indicating that unconstitutional acts were occurring. Littlejohn, 795 F.3d at 314.
Plaintiffs provide supporting evidence of the second scenario described above. Specifically, there is record evidence that Superintendent Mendez, after being informed of Principal Zanca's discriminatory behavior prior to Riccardo's termination, failed to take adequate remedial steps.
The Superintendent testified that after receiving Riccardo's June 24, 2013 statement, he did his "due diligence" and asked three individuals who had worked with Principal Zanca in the past whether she had ever made discriminatory remarks in their presence.
But without even inquiring into Riccardo's allegations with any Pan American teachers or administrators, Mendez reached out to OEO's Executive Director,
Based on these facts, a reasonable juror could find that Superintendent Mendez conducted a cursory investigation, sought to influence the outcome of the investigation, and therefore was personally involved in the violation of Riccardo's constitutional rights. See Lewis v. Roosevelt Island Operating Corp., 246 F.Supp.3d 979, 993 (S.D.N.Y. 2017) (board members' failure to take any steps to remedy discriminatory behavior qualified as personal involvement).
E.
Defendants argue that Riccardo's claims are barred in full by the stipulation he signed agreeing to resign from the DOE effective August 25, 2013. (Def. 56.1 312; Stipulation ¶ 1.) The stipulation provided that Riccardo would irrevocably resign from his position as Assistant Principal and would not pursue another position with the DOE. In exchange, Principal Zanca would issue him a "satisfactory" rating for the 2012-13 school year. (Stipulation ¶¶ 1-3.) The stipulation also stated that Riccardo "waives all claims against the Chancellor, the Principal, the Department of Education or any of its agents or employers in any administrative, judicial or other forum arising out of the unique and particular facts of this matter . . . [and] shall have no precedential force or effect"." (Stipulation ¶¶ 5-6.) It was signed by Riccardo on August 28, 2013, Superintendent Mendez on October 7, 2013, Principal Zanca on October 18, 2013, and CSA Grievance Director Robert Reich on October 18, 2013. The Court finds that there are genuine disputes of material fact as to whether Riccardo's waiver of his claims here was knowing and voluntary, and as to whether the waiver even applies to these claims.
"The essential inquiry in determining the validity of a release of a claim brought pursuant to the federal civil rights statutes ... is whether, considering the `totality of the circumstances,' the individual's waiver of his or her right can be characterized as `knowing and voluntary.'" Laramee v. Jewish Guild for the Blind, 72 F.Supp.2d 357, 359 (S.D.N.Y.1999) (quoting Bormann v. AT & T Communications, Inc., 875 F.2d 399, 402-03 (2d Cir. 1989)). Among the factors to be considered are:
Bormann, 875 F.2d at 403. This seven-factor-totality of the circumstances analysis demands a "peculiarly fact-sensitive inquiry." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437-38 (2d Cir. 1998). None of the factors is individually dispositive, nor must all the factors be satisfied. See Laramee, 72 F. Supp. 2d at 360.
Defendants correctly point to evidence that supports a finding of knowing and voluntary waiver. For instance, Riccardo's education and business experience, a bachelor's degree and seven years of employment for the DOE, in the capacity as teacher and assistant principal (Riccardo Dep., attached as Ex. E at 16-17; Riccardo Dep. attached as Ex. D to Dandridge Decl., at 5-6), supports the proposition that he was fully capable of understanding the stipulation's terms. See, e.g., Williams v. Department of Education, No. 16 Civ. 980, 2016 WL 4574928, at *4 (S.D.N.Y. 2016) (tenured teacher with substantial experience who worked as a teacher for more than twenty years knowingly and voluntarily released claims); Kramer v. Vendome Group LLC, No. 11 Civ. 5245, 2012 WL 4841310, at *3 (S.D.N.Y. Oct. 4, 2012) (plaintiff had "sufficient intelligence, ability, and experience to be capable of understanding the [r]elease" where she had worked as an editor at a publication company for four years); Bachiller v. Turn On Products, Inc., No. 00 Civ. 8701, 2003 WL 1878416, at *4 (S.D.N.Y. April 14, 2003), aff'd, 86 F. App'x 465 (2d Cir. 2004) (plaintiff with high school equivalency diploma who served as accounts payable clerk knowingly and voluntarily released claims).
Similarly, there is evidence that Riccardo had sufficient time to review the agreement, as he reviewed a draft agreement containing essentially identical terms more than two weeks before he signed the stipulation. (Def. 56.1 ¶ 302; Riccardo Dep., Ex. E at 203-07.) Courts in this district have found shorter periods of time were sufficient to weigh in favor of an agreement's validity. See Mandavia v. Columbia University, No. 12 Civ. 2188, 2013 WL 2391695, at *7 (S.D.N.Y. June 3, 2013) ("Plaintiff's sporadic opportunities to review the terms of the Agreement during the two-week negotiation period, and the several hours afforded to him the day that he signed, are sufficient...."); Cordoba v. Beau Dietl & Associates, No. 02 Civ. 4951, 2003 WL 22902266, at *5 (S.D.N.Y. Dec. 8, 2003) (four days was "sufficient for [plaintiff] to acquaint herself with the [r]elease's terms and make a considered decision").
There is disputed evidence, however, as to the third Bormann factor — the role of Riccardo in deciding the terms of the agreement. Riccardo claims that the terms of the stipulation were "dictated by his union" (Plaintiff's Memorandum in Opposition to Motion for Summary Judgment ("Pl. Riccardo Mem.") at 8
The parties have devoted substantial argument as to whether the fourth Bormann factor, the clarity of the agreement, weighs in favor of waiver. (Def. Mem. at 9-13; Pl. Mem. at 32-34.) Plaintiffs argue that the language of the stipulation is ambiguous and vague, and that the contemporaneous behavior of the signatories does not support the DOE's claim that the stipulation "clearly relate[s]" to Riccardo's claims of race discrimination and retaliation. (Pl. Mem. at 33.) There is evidence in the record supporting both contentions.
Courts will uphold general releases that expressly and clearly release all legal claims. For instance, in Smith v. JPMorgan Chase, the court enforced a release that explicitly released "all existing claims, whether known or unknown, including, but not limited to, claims for age discrimination" under the federal discrimination statute. No. 15 Civ. 808, 2016 WL 5339548, at *7 (S.D.N.Y. 2016); see also Charlery v. Department of Education of City of New York, No. 15 Civ. 7994, 2017 WL 2124447, at *3 (S.D.N.Y. May 15, 2017) (enforcing release where plaintiff released the City of New York and its agencies "from any and all claims, causes of actions, suits," and other liability that "occurred through the date" of the release); Kramer, 2012 WL 4841310, at *4 (release was clear and unambiguous where it stated that plaintiff would "waive and release all claims or charges that plaintiff has or might have against defendant, including claims for discrimination arising under the ADA" (alteration marks omitted)).
By comparison, in Reidy v. Runyon, the court denied summary judgment where the release applied to "all issues germane to this case" but was also "non-precedent setting," finding that the plaintiff could reasonably have believed that the release did not apply to the claims raised in her federal action. 971 F.Supp. 760, 765-66 (E.D.N.Y. 1997); see also Beebe v. New York Times Co., 666 F.Supp.2d 321 (E.D.N.Y. 2009) (denying summary judgment where release stated that the settlement was "without precedent to any other claim or grievance of a similar nature"). The stipulation here is similar to the waiver at issue in Reidy. The stipulation only waives those claims "arising out of the unique and particular facts of this matter" and is described as having "no precedential force or effect." (Stipulation ¶¶ 5-6.) This language injects a "level of ambiguity as to the scope of the waiver[ ]," Beebe, 666 F. Supp. 2d at 321, suggesting that it may be limited to the circumstances of Riccardo's rating and not any federal claims.
Defendants rely upon Miller v. New York City Department of Education to support their interpretation of the waiver. In that case, plaintiff signed a stipulation waiving all "rights to make any legal or equitable claims . . . relating to or arising out of this matter." 71 F.Supp.3d 376, 380 (S.D.N.Y. 2014), aff'd, 622 F. App'x 38 (2d Cir. 2015). The court found that the scope of the waiver encompassed plaintiff's claims, which were his complaints, protests, and insubordination, that arose as a response to, and prompted, discrimination
The parties' contemporaneous behavior also does not support a definitive reading of the release. Superintendent Mendez testified that it was his understanding that the stipulation applied to all litigation with the DOE and its officers, while Principal Zanca testified that she was not sure what the disputed provision referred to. (Mendez Dep., Ex. 16 at 285-90; Zanca Dep., Ex. 9 at 220-21.) Meanwhile, Riccardo continued to pursue his retaliation claims even after he signed the stipulation, suggesting he understood the stipulation as being limited. As a result, a reasonable jury could find that Riccardo's claims are outside the scope of the release.
The fifth factor focuses on whether Riccardo was represented by or consulted with an attorney prior to signing the stipulation. "[T]he general rule is that union representation satisfies the fifth Bormann factor." Mandavia v. Columbia University, No. 12 Civ. 2188, 2013 WL 2391695, at *9 (S.D.N.Y. June 3, 2013) (internal quotation and alternation marks omitted) (quoting Khadaroo v. New York Presbyterian Hospital, No. 10 Civ. 1237, 2012 WL 893180, at *5 (S.D.N.Y. March 15, 2012)). Defendants argue that Riccardo was adequately represented because he was in contact with two union representatives and had the opportunity to seek additional legal representation. (Def. Mem. at 10.) The stipulation is vague on this matter, stating only that Riccardo "has been fully and fairly represented by the Union and/or had the opportunity to seek legal counsel throughout this process, and that [he] enters into this Stipulation of his own free will." (Stipulation ¶ 7.) Furthermore, Riccardo claims that the union was conflicted by its representation of him and Principal Zanca, and in reality, was not truly representing him. (Riccardo Dep., Ex. E at 205-06.) Riccardo also testified that he contacted a lawyer around the time that the stipulation was signed but stated that the attorney "didn't want to take my case or anything. He didn't want to have anything to do with it." (Riccardo Dep., Ex. E at 206.) Riccardo did not testify that the substance of the stipulation was discussed. There are therefore genuine disputes at issue regarding the fifth Bormann factor.
Finally, a genuine dispute of fact concerning the sixth factor — whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law — weighs against finding a waiver on summary judgment. While Defendants point to the change in Riccardo's "unsatisfactory" rating and his ability to rescind his discontinuance without going through an appeals process, Riccardo argues that both his "unsatisfactory" rating and his discontinuance were not actually reversed and, regardless, if they were reversed, they were not changed in a timely fashion and therefore do not qualify as consideration.
Defendants have not provided any evidence demonstrating that Riccardo's annual rating was reversed contemporaneously with the stipulation's execution. They refer solely to an exhibit submitted by a DOE Human Resources employee, but that exhibit shows only that Riccardo now has an S rating for the 2012-13 school year. (Rating History for Instructional Staff, attached as Ex. A to Declaration of Charles Peeples dated Aug. 31, 2016.)
In sum, while there is evidence supporting Defendants' argument as to the scope and validity of the release, there is also evidence to the contrary, not the least of which is the stipulation's ambiguous wording. Accordingly, a reasonable juror could find that Riccardo did not knowingly and voluntarily waive his federal claims.
Under New York law, "a release that is clear and unambiguous on its face and which is knowingly and voluntarily entered into" may bar employment discrimination claims arising under New York state and local anti-discrimination laws. Johnston v. Carnegie Corp. of New York, No. 10 Civ. 1681, 2011 WL 1085033, at *7 (S.D.N.Y. Feb. 24, 2011) (quoting Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 463 (2d Cir. 1998)). For the reasons articulated above, the plain language of the stipulation is ambiguous as to its scope. Accordingly, Defendants' motion for summary judgment on Riccardo's state and city law claims based upon an enforceable release should be denied.
The United States claims that the DOE engaged in a pattern or practice of discrimination and retaliation based on race in the hiring, retention, and employment conditions of teachers at Pan American in violation of Title VII. (Complaint ¶¶ 51-52.) Defendants argue that this claim must be dismissed on summary judgment because the United States cannot meet their prima facie burden. The record shows otherwise.
To succeed on a pattern-or-practice claim, plaintiffs must "prove more than sporadic acts of discrimination; rather they must establish that intentional discrimination was the defendant's `standard operating procedure.'" Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir. 2001) (quoting International Brotherhood of Teamsters v. United States (Teamsters), 431 U.S. 324, 336, 97 S.Ct. 1843,
If the plaintiffs satisfy the prima facie requirement, "[t]he burden [of production] then shifts to the employer to defeat [it] ... by demonstrating that the [plaintiffs'] proof is either inaccurate or insignificant." Id. at 159 (alterations in original) (quoting Teamsters, 431 U.S. at 360, 97 S.Ct. 1843). "Once the defendant introduces evidence satisfying this burden of production, the trier of fact then must consider the evidence introduced by both sides to determine whether the plaintiffs have established by a preponderance of the evidence that the defendant engaged in a pattern or practice of intentional discrimination." Id. If the plaintiff successfully establishes the existence of a "pattern or practice" of discrimination, a court may, at a later date, fashion class wide injunctive relief. Id. The evidence before the Court raises genuine issues of material fact as to whether Defendants engaged in a pattern or practice of discrimination and retaliation.
2.
First, the United States presents evidence that Principal Zanca took adverse actions against every African-American teacher at Pan American and retaliated against Riccardo when he opposed her treatment of them.
Of the eight probationary teachers evaluated by Principal Zanca at the end of the 2012-13 school year, only Flanagan and Hightower were discontinued, while the non-African-American teachers either were given tenure or had their probationary period extended. (Def. 56.1 ¶¶ 131-133, 135.) After facing hostility and budget cuts, James transferred to another school. Therefore, as a result of Principal Zanca's purported actions, there were no African-American teachers at Pan American at the end of the 2012-13 school year.
The United States argues that this so-called "inexorable zero" constitutes relevant statistical evidence. The "inexorable
Second, the United States relies upon the anecdotal evidence of discrimination described and discussed earlier at length. Multiple witnesses testified that Principal Zanca made derogatory racial remarks, which included references to "dark-skinned individuals" as "gorillas" or "monkeys." (Riccardo Statement at 1-2; Fonseca Dep. at 73-74; Gonzalez Dep. at 14, 19-21, 40, 98.) Likewise, the United States points to evidence that Principal Zanca campaigned to terminate Flanagan and Hightower through predetermined and pretextual "unsatisfactory" ratings and worked to diminish James' prestigious theater program. (Riccardo Statement at 1-2.) And when Riccardo sought to oppose her tactics, there is evidence that Principal Zanca retaliated against him through disciplinary measures, termination, and criminal allegations. (Riccardo Statement at 1-2.)
There is also some evidence that the safeguards intended to identify and correct discriminatory actions failed. For example, as explained previously, there is evidence that Superintendent Mendez ignored credible allegations from Pan American faculty members and worked to undermine the OEO's investigation, and that the OEO investigators failed to follow their own internal policies or conduct a robust investigation. (Emails attached as Ex. 53 to Hayes-Deats Decl.; Wade Dep. at 51-52.) The United States depicts the OEO investigation as being intentionally designed to discredit Riccardo while avoiding questions that would further implicate Principal Zanca. For instance, the United States points to the fact that during his OEO interview, Riccardo stated that Principal Zanca had made derogatory remarks about students who were from the Dominican Republic and instructed him to limit their enrollment. (OEO Mem. at USA0737-38.) The OEO did not investigate these allegations or refer them to the SCI, even though the OEO investigator testified that it was OEO's policy to do so. (Wade Dep. at 51-52.)
In light of the United States' extensive anecdotal evidence and the fact that this evidence concerns every single African-American teacher at Pan American during the 2012-13 school year, a reasonable jury could find that the United States has met its prima facie burden to show a pattern or practice of discrimination.
3.
Because the United States has met its burden of producing evidence to support its prima facie case, Defendants
Defendants argue primarily that the United States failed to proffer the required statistical evidence. They point to the fact that Hightower was replaced as an Earth Science teacher for the 2013-14 school year by Rax-Anne Miller, an African American, who was rated "effective" for that year.
As to the anecdotal evidence, Defendants argue that the testimony showed that Principal Zanca "made disparaging comments about persons of many races as well as overweight people" and therefore any derogatory remarks were simply "isolated discriminatory comments about persons of several races." (Def. Reply USA Mem. at 5.) This argument is unavailing. Discriminatory animus should not be excused merely because an individual's statements target multiple protected groups. Defendants' argument that Principal Zanca's treatment of James was not discriminatory because James did not receive "unsatisfactory" ratings is also unavailing, for the reasons articulated above.
Despite the weakness of certain of Defendants' arguments, the fact that the overall number of African-American teachers at Pan American only decreased from three to two from 2012-2013 to 2013-2014 is evidence supporting Defendants' rebuttal and is sufficient to next consider the final step of the analysis.
Since both sides have provided evidence to meet their burdens of production, the Court must evaluate the totality of evidence to determine whether there is a dispute of material fact as to a pattern or practice of discrimination. See Robinson, 267 F.3d at 159.
At oral argument, Defendants argued that the time period at issue — a single school year — was not sufficient to meet the requirements of a pattern and practice claim. Defendants, however, have not cited to any statute or provided any case law to support this argument. While the Court acknowledges that the relevant time period in this case is shorter than time periods in other similar cases, this is not sufficient grounds for summary judgment. Plaintiffs are correct that here, unlike in many comparable cases, the individual plaintiffs were quick to bring suit, thereby potentially limiting the window of time in which Pan American operated in a discriminatory manner.
Plaintiffs' cases alleging a pattern or practice of discrimination are typically characterized by a "heavy reliance on statistical evidence." Reynolds v. Barrett, 685 F.3d 193, 203 (2d Cir. 2012) (quoting Robinson, 267 F.3d at 158 n.5); see also E.E.O.C. v. Bloomberg L.P., 778 F.Supp.2d 458, 470 (S.D.N.Y. 2011) ("The case law is weighty in favor of defendants in pattern
Courts have recognized, however, that in certain cases, statistical evidence may be either unavailable or meaningless. See City of New York, 713 F. Supp. 2d at 317 ("While most pattern-or-practice claims are proven through the use of statistics, `when there is a small number of employees, anecdotal evidence alone can suffice.'") (quoting Sidor v. Reno, No. 95 Civ. 9588, 1997 WL 582846, at *10 (S.D.N.Y. Sept. 19, 1997)); Robinson, 267 F.3d at 158 (testimony detailing "specific instances of discrimination" may be sufficient to establish the existence of a policy, pattern, or practice of intentional discrimination). Here, neither party has conducted a statistical analysis of Pan American's employees — presumably because of the relatively small number of total employees.
Accordingly, the United States' case rests on the strength of its anecdotal evidence. They offer evidence that Pan American subjected all three of its African-American teachers to discriminatory treatment. They also put forth evidence that Flanagan and Hightower were assessed using predetermined, pretextual evaluations, the result being that they were the only probationary teachers to receive recommendations for discontinuance. (Def. 56.1 ¶ 135.) As a tenured teacher, James was not subject to the same review system, but there is evidence that under. Principal Zanca's leadership, Pan American essentially gutted her theater program, compelling her transfer from the school. (Def. 56.1 ¶ 26; 4/8/13 Zanca Letter; James Dep., Ex. 24 at 170-71.)
The fact that Principal Zanca hired two African-American teachers for the following school year may reasonably be interpreted as evidence that she was never motivated by discriminatory animus. It could also reasonably be interpreted as an attempt to cover up prior, discriminatory behavior. Regardless, it does not foreclose a claim of school-wide pattern or practice based on Defendants' actions in the 2012-13 school year.
As described throughout this opinion, the evidence underlying the United States' pattern or practice claim implicates varied questions of material fact, making summary judgment on this claim inappropriate.
Conclusion
For the foregoing reasons, I recommend that Defendants' motion for summary judgment should be DENIED with respect to Hightower's and James' disparate treatment claims pursuant to Title VII, 42 U.S.C. § 1981, and the NYSHRL; James' hostile work environment claims; Riccardo's Title VII retaliation claims against the Department of Education; Riccardo's NYSHRL and NYCHRL retaliation claims against Principal Zanca; Riccardo's § 1983 claims against Principal Zanca and Superintendent Mendez; and the United States' pattern and practice claims and Title VII claims brought on behalf of Riccardo, Hightower and James. Defendants' motion for summary judgment should be GRANTED with respect to: James' and Hightower's retaliation claims; all aiding and abetting claims; and Riccardo's § 1983 claims against the Department of Education. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have
Dated: August 7, 2018
