MARGO K. BRODIE, District Judge:
Plaintiff Edward Weber brought the above-captioned action against Defendants City4 of New York (the "City"), the New York City Department of Education ("DOE"), Principal Lashawn Robinson ("Robinson") and Assistant Principals Lana Phillips ("Phillips") and Katwona Warren ("Warren") of Brownsville Academy High School ("Brownsville Academy"), alleging claims of age discrimination, religious discrimination and retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 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 § 290 et seq. ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"). Plaintiff also alleges equal protection claims in violation of the Fourteenth Amendment of the United States Constitution pursuant to 42 U.S.C. § 1983 and in violation of the New York State Constitution. Defendants moved for summary judgment on all claims. The Court heard oral argument on July 26, 2013, and, at oral argument, dismissed Plaintiff's age discrimination claims pursuant to the ADEA, NYSHRL and NYCHRL as to all Defendants, and equal protection claims in violation of the Fourteenth Amendment and the New York State Constitution as to the City. For the reasons set forth below, the Court grants Defendants' motion for summary judgment as to all other claims.
Plaintiff, a high school teacher, has been employed by DOE since 2001. (Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1.)
Plaintiff identifies himself as "an observant Hasidic ultraorthodox Jew" and was 56 years old at the time he commenced this action. (Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2.) Brownsville Academy made a number of accommodations of Plaintiff's religious practice. Throughout Plaintiff's employment at Brownsville Academy, Plaintiff was excused from school for religious observances several times, including six absences in the 2007-2008 school year, five absences in the 2008-2009 school year, two absences in the 2009-2010 school year, and five in September and October 2010 during the Fall 2010 semester. (Def. 56.1 ¶ 199 (citing McNally Decl. Ex. III).) Plaintiff acknowledges that Brownsville Academy has never prohibited him from taking a day off for religious observance of a Jewish holiday on which he was not permitted to work according to Jewish law. (Weber Day 1 Tr. 130:15-19.)
Plaintiff alleges that during his employment at Brownsville Academy, Defendants "did not accommodate his request for time off for at least one religious day to bake matzahs for Passover in 2010."
Plaintiff admits that during his employment at Brownsville Academy, he never heard any of his co-workers or supervisors use any negative religion-related or derogatory terms about his religion. (Def. 56.1 ¶ 211, 213 (citing Weber Day 1 Tr. 183:1-184:5).) Plaintiff alleges, however, Guidance Counselor Kevin Rank joked that things were "[k]osher because he blessed it" and although Plaintiff knew Rank was joking when he made these remarks about things being "kosher," Plaintiff asserts that "it is not a funny joke after the 100th time." (Weber Day 1 Tr. 147:11-25.) Plaintiff admits that he never complained to Rank and never told the administration about Rank's comments. (Oral Arg. Tr. 55:2-56:1.)
Plaintiff was regularly observed and evaluated by his superiors. (See, e.g., McNally Decl. Exs. R, S, V, AA, KK, LL, QQ, SS, UU, XX, BBB.) Plaintiff's superiors prepared performance evaluations following their observations of Plaintiff's class-room performance, as well as year-end performance evaluations. (See, e.g., McNally Decl. Exs. R, S, V, AA, KK, LL, QQ, SS, UU, XX, BBB.) Plaintiff's performance evaluations demonstrate that he was subject to increasing criticism during his tenure at Brownsville Academy. (See, e.g., McNally Decl. Exs. R, S, V, KK, LL, QQ, SS, UU, XX.)
Plaintiff received a satisfactory rating on his year-end performance evaluations for the four consecutive school years between 2005 and 2009. (Def. 56.1 ¶¶ 13, 18, 24, 33; Pl. 56.1 ¶¶ 13, 18, 24, 33.) During this time, however, Plaintiff's teaching performance was subject to criticism. (See Def. 56.1 ¶¶ 14-17, 25-27 (citing McNally Decl. Exs. F, G, H, L).
Plaintiff received his first unsatisfactory performance evaluation during the 2009-2010 school year, in February 2010. (Id. ¶¶ 37-41 (citing McNally Decl. Ex. Q).) Plaintiff was criticized for, among other things, having a vague lesson objective resulting in a failure to achieve a well-planned and executed lesson, allowing students to spend more than a half-hour on an assignment that should have taken no
Plaintiff received another satisfactory rating during the 2009-2010 school year followed by additional unsatisfactory ratings for the remainder of the 2009-2010 and 2010-2011 school years for issues such as failing to address the objective for the day, failing to assess the students' understanding at the end of lessons, accepting incorrect answers as correct, failing to wrap-up lessons, allowing students to arrive late without comment, moving on when students were clearly confused, and failing to provide students with clear directions.
In a June 2010 performance evaluation, Robinson noted that "Phillips [had] worked diligently with [Plaintiff] ... to no avail." (McNally Decl. Ex. V.) Robinson informed Plaintiff that his colleagues would continue to support him, but noted that Plaintiff needed to accept constructive feedback in order to improve. (Id.; see also McNally Decl. Exs. BB, LL.) In April 2011 Plaintiff was given an Action plan and recommendations for achieving a satisfactory rating. (Def. 56.1 ¶ 126 (citing McNally Decl. Ex. TT).) According to the Action Plan, Brownsville Academy's Lead Teacher, Diana Ramsawak, as well as Phillips, Robinson and Warren, would continue to work with Plaintiff on various aspects of the plan. (Id.) Plaintiff was warned that "unsatisfactory observations may lead to further disciplinary action including an unsatisfactory rating and charges that may lead to the termination of your license." (Id. ¶ 128 (quoting McNally Decl. Ex. TT).) In Plaintiff's last performance evaluation of the 2010-2011 school year, Robinson reviewed all of the support Plaintiff had been
Defendants assert that Plaintiff reacted unprofessionally on many occasions when he was notified of various performance issues. For example, according to Nabors, at a meeting with Nabors and Robinson during the 2005-2006 school year, when Nabors attempted to discuss Plaintiff's lesson plan with him he "became very agitated and abrupt," asking if he needed his union representative present. (McNally Decl. Ex. G.) When Nabors and Robinson attempted to address the format of Plaintiff's lesson plan, he "became very belligerent" and told Nabors to "be quiet," at which point she asked him to leave her office. (Id.) On another occasion during the 2007-2008 school year, after Phillips criticized Plaintiff for failing to execute his lesson plan, Plaintiff started shouting in front of his class that he was being harassed. (Def. 56.1 ¶ 26 (quoting McNally Decl. Ex. L).) After that incident, Plaintiff complained to Nabors that he was being harassed by Phillips, and Nabors investigated his complaint of harassment. (Def. 56.1 ¶¶ 28-29 (citing McNally Decl. Ex. M).) At the conclusion of her investigation of Plaintiff's complaint, Nabors found that Plaintiff's conduct was "unprofessional [and] unacceptable," and she directed Phillips to assist Plaintiff "in an effort to improve the quality of instruction and implement the very best chemistry course that Brownsville Academy High School can offer." (Id. ¶ 30 (quoting McNally Decl. Ex. M).) After Phillips observed and critiqued Plaintiff's performance in class on February 25, 2010, Plaintiff again accused Phillips of harassing him and filed a grievance against her. (McNally Decl. Ex. Q; Def. 56.1 ¶ 50 (citing McNally Dec. Exs. T, U); Pl. 56.1 ¶ 50.) Robinson denied Plaintiff's grievance on the grounds that he had failed to demonstrate that he had been harassed or that Phillips's performance evaluation was unfair or inaccurate. (McNally Dec. Ex. T.)
Plaintiff was also found to be insubordinate on several occasions. During two of the Plaintiff's classes in 2010-2011 he made inappropriate comments to Robinson and Warren while they were observing him. Robinson and Warren observed Plaintiff's class on April 15, 2011. (McNally Decl. Ex. SS.) During class, Plaintiff repeatedly directed his comments and questions at Robinson and Warren, rather than the class, with statements like, "Ms. Warren, feel free to chime in since this is an easy lesson," "Ms. Warren and Ms. Phillips ... are teachers[,] I am sure they would like to learn a little chemistry," "Ms. Warren, you should know this. Ms Warren, do you know the answer?," and "Are you learning chemistry Ms. Warren?" (Id.) Robinson told Plaintiff that his behavior during the class towards his superiors who were observing "was unprofessional and unacceptable," and had a "negative impact" on the students. (Id.) After investigating the matter further, including meeting with Plaintiff and his union representative, Robinson concluded that Plaintiff's behavior during the class "constitute[d] conduct unbecoming of a professional educator and insubordination."
On July 2, 2010, Plaintiff appealed his first unsatisfactory year-end performance evaluation, for the 2009-2010 school year, to the DOE's Office of Appeals and Reviews. (Id. ¶ 71 (citing McNally Decl. Ex. CC).) A hearing was held before Ron Gerstman, the Chancellor's Committee Chairperson, on November 12, 2010. (Id. ¶ 72.) Plaintiff, his union representative, Robinson, Phillips and Warren all participated in the hearing. (Id. ¶ 72.) In challenging his unsatisfactory rating, Plaintiff claimed that he was "continually harassed." (McNally Decl. Ex. DD at 2.) Plaintiff did not claim that he was harassed or discriminated against based on his religion or age. Gerstman recommended that Plaintiff's unsatisfactory rating for the 2009-2010 school year be sustained. The Chancellor Committee found that "[b]oth the verbal testimony and the documentation submitted" supported the evaluation. (Id.) The Committee concluded that "[t]here was clearly a failure to align curriculum, instruction and assessment, and [Plaintiff's] `Unsatisfactory' teaching resulted in none of his students passing their Regents examinations." (Def. 56.1 ¶ 73 (quoting McNally Decl. Ex. DD); see also McNally Decl. Ex. EE.)
On July 7, 2011, Plaintiff commenced an Article 78 proceeding against the City, DOE, and the Chancellor in the Supreme Court of the State of New York, challenging the Chancellor's determination. (Id. ¶ 75 (citing McNally Decl. Ex. GG); Pl. 56.1 ¶ 75.) Plaintiff sought a declaration annulling the Chancellor's decision to uphold the 2009-2010 unsatisfactory rating "as arbitrary, capricious, unreasonable, an abuse of discretion, lacking a rational basis, in violation of lawful procedure, and in bad faith." (Id.) Plaintiff alleged that beginning in 2009-2010 he was "suddenly and without any genuine professional basis, targeted for firing by Principal Robinson and her assistant principals, and, in building a bogus paper trail to justify that termination, [they] issued an unbroken string of negative observation reports seeking to establish his impotence." (Id.) Plaintiff called the Chancellor's review of the unsatisfactory rating a "sham." (Id. at 4-5.) Plaintiff also referenced his 2010-2011 unsatisfactory annual rating, which he had recently received and accused Robinson of "ill-motives and bad faith," "harassment" and "assault," and a "desire to damage" him." (Id. at 5-6.) Plaintiff
On June 25, 2012, the Honorable Paul G. Feinman of New York Supreme Court issued a decision denying Plaintiff's Article 78 Petition and finding that Plaintiff "failed to show that the U[nsatisfactory]-rating was arbitrary and capricious or made in bad faith." (Def. 56.1 ¶ 77 (quoting McNally Decl. Ex. HH).) Judge Feinman reviewed the detailed reports of Plaintiff's classroom observations and other letters in his file and concluded that, "[t]aken together, these documents and the testimony presented at the [DOE Office of Appeals and Reviews] hearing were sufficient to support the Chancellor's Committee's determination to deny [Plaintiff's] internal appeal of his U-rating from the 2009-2010 school year." (Id. ¶ 78 (quoting McNally Decl. Ex. HH).) Judge Feinman also concluded that Plaintiff's "contention that the principal and assistant principals are biased against him was `speculative and insufficient to establish bad faith,'" and "unsupported by competent proof." (Id. ¶ 79 (quoting McNally Decl. Ex. HH).) Judge Feinman noted that "[t]o establish bad faith, the burden falls squarely on the petitioner to demonstrate, by competent proof, that a substantial issue of bad faith exists, and mere speculation, or bald, conclusory allegations are insufficient," and "mere personality conflicts must not be mistaken for unlawful discrimination." (McNally Decl. Ex. ¶¶ at 11 (alteration, citations and internal quotations omitted).) Plaintiff alleged in the Article 78 Petition that Robinson stated at the Office of Appeals and Reviews hearing that Plaintiff would never again receive a satisfactory rating, but Judge Feinman held that he did "not find a statement of this nature in the audio recording of the hearing or its written transcription."
During the 2010-2011 school year Plaintiff was invited to participate in a voluntary program jointly developed by DOE and the United Federation of Teachers and designed for teachers who needed to work on improving their performance. (Def. 56.1 ¶ 115 (citing McNally Decl. Ex. RR).) The Peer Observation and Evaluation program, known as "PIP Plus," was "designed for tenured teachers who have been identified as in continuing need of assistance for significant instructional improvement, and who are in danger of 3020a
On April 13, 2010, Plaintiff covered a class for a teacher who was absent. (Def. 56.1 ¶ 57 (citing McNally Decl. Ex. W).) Five of the students present in the classroom were not on the class roster and were in Plaintiff's classroom because they failed to attend their assigned classes. (Id.) Plaintiff claims that he did not have a roster of students and did not ask for a roster of students who were assigned to the class.
Following an investigation, Robinson determined that the incident may have been avoided if Plaintiff had not allowed students to avoid attending their assigned classes by attending his class, and she concluded that Plaintiff did not take appropriate action to ensure that the students who did not belong in his class were removed from his classroom. (Id. ¶ 61 (citing McNally Decl. Ex. W).) Robinson informed Plaintiff that "allowing scholars to cut in your classroom is a very serious infraction," and notified Plaintiff that the incident could lead to further disciplinary action, including "an unsatisfactory rating and charges that may lead to your termination."
On December 3, 2010, two students, C.G. and D.S., informed Brownsville Academy's Guidance Counselor Rank that they were upset about inappropriate racial comments they alleged were made by Plaintiff in class that day about African Americans. (Def. 56.1 ¶ 81.) Rank documented the information from the students in a letter to Robinson dated December 3, 2010 which states:
(McNally Decl. Ex. II.) On December 6, 2010, three students provided handwritten statements about the incident.
After receiving the parent's email, Robinson reported the complaints from the students and the parent to DOE's Online Occurrence Reporting System. (Def. 56.1 ¶ 87.) As a result of Robinson's report, the DOE Office of Employment Opportunity ("OEO") was assigned to investigate the
On May 26, 2011, a student complained that Plaintiff improperly left her alone in the classroom. (Def. 56.1 ¶ 135 (citing McNally Decl. Ex. WW).) The student also complained about comments Plaintiff made to her. The student stated that, on or about May 24, 2011, "I told [Plaintiff] I wanted to practice for the chemistry 2 Regent and so he told me that he didn't think I was going to pass it because it was very hard. For some reason Mr. Weber is always downgrading me and making me feel like I can't make it. Out of all teachers and staff members in the building he is the only person who thinks I can't do it or that I'm not smart enough." (Id. ¶ 136 (quoting McNally Decl. Ex. WW).) Brownsville Academy investigated the complaint and received statements from other students complaining about other comments made by Plaintiff.
On Friday, June 3, 2011, Robinson and Phillips met with Plaintiff and his union representative to discuss the students' complaints. (Def. 56.1 ¶ 142 (citing McNally Decl. Ex. WW).) Plaintiff stated that he "could not recall any of these incidents," but he "could [not] think of a reason why these scholars would lie about these incidents." (Id.) Robinson offered Plaintiff the remainder of the day and the following Monday to produce witnesses who could substantiate that the complaints were untrue, but Plaintiff did not provide any contrary evidence. (Id.) Robinson notified Plaintiff in a June 7, 2011 letter that she had concluded that Plaintiff made several inappropriate comments to students, and that those comments constituted conduct unbecoming of a professional educator.
On May 26, 2011, the parent of a student, Ms. C., wrote to Robinson that she had written a letter to Plaintiff requesting a change in her son's grade. (Def. 56.1 ¶ 166 (citing McNally Decl. Ex. DDD).) She complained that Plaintiff had not responded even though he previously stated that he would change the grade. (Id.) Ms. C. further stated that Plaintiff "didn't have any records in his grade book for [her son]" and told Ms. C. "to go to Administration." (Id.) Ms. C. wrote that Plaintiff "was yelling and screaming at me. He blame [sic] on the administration because he stated that they keep changing his program all the time." (Id.) Robinson and Phillips met with Plaintiff and his union representative to discuss the complaint. (Id. ¶ 166 (citing McNally Decl. Ex. DDD).) Phillips asked Plaintiff whether he had the student's records and whether the student was in his class. (Id. ¶ 167 (citing McNally Decl. Ex. DDD).) Plaintiff told Phillips that he would "have to get back to [her]." (Id. ¶ 167 (citing McNally Decl. Ex. DDD).) When asked whether he yelled and screamed at the parent and blamed the administration, Plaintiff did not respond. (Id.)
Robinson concluded that "the conduct [Plaintiff] exhibited when [he] did not have records available for [the student] when requested by the parent," which included yelling and screaming, and blaming the administration, "constitute[d] conduct unbecoming a professional educator." (Id. ¶ 168 (citing McNally Decl. Ex. DDD).) Robinson informed Plaintiff that he was obligated to address all parents in a professional manner and maintain good relationships with them, and that the student's records should have been available to his mother during the parent-teacher conference. (Id.)
Lead Teacher Diana Ramsawak alleged that Plaintiff "raved" to her about the administration, complaining that he "did not deserve an unsatisfactory" rating, became "frustrated and angry," felt that the students were not "working hard enough" and stated that they "acted like animals." (Def. 56.1 ¶¶ 152-53 (quoting McNally Decl. Ex YY).) Ramsawak reported Plaintiff's comments to Robinson, and Robinson confronted Plaintiff with Ramsawak's report which Plaintiff denied. (Id. ¶ 152, 154.) Plaintiff acknowledged that he did not know of any reason why Ramsawak would have lied about Plaintiff making these statements. (Id. ¶ 154 (citing McNally Decl. Ex. YY).) Robinson concluded that Plaintiff had made the statements and exhibited conduct that was unbecoming of a professional educator, and reminded Plaintiff of his obligation to address staff members in a professional manner and not to discuss students in a derogatory
Melissa Ingrati, Brownsville Academy's secretary, reported to Robinson that in May 2011, Plaintiff told her he was "sick of" receiving letters from Robinson, and that "If she doesn't stop harassing me, I'm going to put a curse on her. I told my Rebbi about what they're doing to me and he even told me to curse her.... I mean it, I'll do it and she'll be sorry." (Id. ¶ 156 (quoting McNally Decl. Ex. ZZ).) Robinson confronted Plaintiff about this "curse" statement. (Id. ¶ 152.) Plaintiff did not recall making the statements but acknowledged that he did not know of any reason why Ingrati would have lied. (Id. ¶ 157 (citing McNally Decl. Ex. ZZ).) Robinson concluded that Plaintiff had made the statements, that they constituted conduct unbecoming of a professional educator, and warned Plaintiff that they may lead to further disciplinary action, including an unsatisfactory rating and disciplinary charges. (Id. ¶ 158 (citing McNally Decl. Ex. ZZ).) Plaintiff later admitted that he did mention putting a curse on Robinson, but asserts that he was "joking" when he made the statement. (Def. 56.1 ¶ 159 (citing McNally Decl. Ex. AAA).) According to Plaintiff, "We were sort of joking at about how I was always getting letters, and I said, just jokingly, that I could put a curse on her, but this is not something that any sane person would take seriously." (Id.)
On or about November 9, 2010, Plaintiff filed a complaint alleging age and religious discrimination with the State Division of Human Rights and the United States Equal Employment Opportunity Commission ("EEOC"). (Def. 56.1 ¶¶ 104-105 (citing McNally Decl. Ex. MM); Pl. 56.1 ¶ 104-105.) The State Division of Human Rights sent the complaint to the legal department of DOE sometime in November 2010. (See Glass Decl. ¶ 3 (citing Glass Decl. Ex. 1); see generally Def. Reply.) According to Defendants, Robinson first learned of the complaint on December 22, 2010 when she received an email from Christina Graves of the DOE's Office of Legal Services. (Def. 56.1 ¶ 106 (citing McNally Decl. Ex. NN).)
On July 6, 2011, the State Division of Human Rights dismissed Plaintiff's complaint for administrative convenience after Plaintiff notified the State Division of Human Rights that he intended to pursue his complaint in federal court. (Def. 56.1 ¶ 107 (citing McNally Decl. Ex. OO); Pl. 56.1 ¶ 107.) The EEOC issued a Dismissal and Notice of Rights to Plaintiff on July 21, 2011. (Def. 56.1 ¶ 108 (citing Cmplt. Ex. A); Pl. 56.1 ¶ 108.) Plaintiff filed this action on October 19, 2011. (Dkt. Entry No. 1.)
Plaintiff was served with 3020-a disciplinary charges in October 2011. DOE attorney Sherine Cummings signed the DOE's disciplinary charges on September 27, 2011. (Id. ¶ 172.) By letter dated October 3, 2011, Robinson notified Plaintiff of the charges. (Id. ¶ 173; Pl. 56.1 ¶ 173.) The letter and charges were served on Plaintiff by mail on October 4, 2011, and by personal service on October 5, 2011. (Def. 56.1 ¶ 173; Pl. 56.1 ¶ 173.) Plaintiff asserts that as an "ultraorthodox Jew," he was "observing the highest holy days of the year at that time (Rosh Hashanah fell on September 28, 2011, and Yom Kippur fell on October 7, 2011 that year)" when he
After the DOE served Plaintiff with 3020-a charges, Plaintiff was removed from his teaching duties at Brownsville Academy and assigned to non-classroom duties. (Def. 56.1 ¶ 179; Pl. 56.1 ¶ 179.) Shortly thereafter, DOE transferred Plaintiff from Brownsville Academy to another school. (Def. 56.1 ¶ 182.) Robinson requested Plaintiff's transfer because during the time Plaintiff was assigned to an administrative position at Brownsville Academy, he continued to make unsolicited negative comments to students about Robinson and the Assistant Principals, and Robinson believed Plaintiff's conduct was disruptive. (Def. 56.1 ¶ 182.)
In February and March 2012, Plaintiff had a hearing on the 3020-a disciplinary charges before hearing officer John L. Woods, Jr. (Def. 56.1 ¶ 187; Pl. 56.1 ¶ 187.) On June 14, 2012, the hearing officer issued a 46-page Opinion and Award. (Def.
The hearing officer found Plaintiff "guilty" of failing to properly, adequately, and/or effectively plan and execute lessons during the 2009-2010 and 2010-2011 school years. With regard to these charges, the hearing officer found that the unsatisfactory observations that were conducted and the reports that were prepared on February 25, 2010, April 19, 2010, June 1, 2010, December 6, 2010, December 20, 2010, February 15, 2011, April 15, 2011, and June 10, 2011, were all "constructive" towards the goals of improving Plaintiff's performance. (Def. 56.1 ¶ 189; Pl. 56.1 ¶ 189.) The hearing officer concluded that "[b]ased on the totality of evidence" which included "[Plaintiff's] consistent failure to deliver satisfactory lessons," Plaintiff was guilty of the charges. (Def. 56.1 ¶ 189 (quoting 3020-a Opinion and Award 32-35); Pl. 56.1 ¶ 189.)
The hearing officer also found Plaintiff "guilty" of poor judgment and unprofessional behavior on April 15 and May 17, 2011. (Def. 56.1 ¶ 192 (citing 3020-a Opinion and Award 37-38); Pl. 56.1 ¶ 192.) The hearing officer found that Plaintiff's "comments to the administration in the presence of students, were distasteful, evidence of poor judgment, unprofessional, undermined the administration[']s leadership authority as well as the academic environment, and more importantly, lacked any pedagogical significance." (Def. 56.1 ¶ 192 (quoting 3020-a Opinion and Award 37-38); Pl. 56.1 ¶ 192.)
The hearing officer also found Plaintiff "guilty" of failing to attend assistance meetings or accept professional development throughout the 2009-2010 and 2010-2011 school years. (Def. 56.1 ¶ 196 (quoting 3020-a Opinion and Award 41-42); Pl. 56.1 ¶ 196.) The hearing officer explained that "[a]s an employee that has demonstrated performance deficiencies, [Plaintiff] has forfeited the right to unilaterally select and avail himself to [sic] professional development opportunities solely of his choosing" and "does not have the option to disregard instruction made by and within the scope of his supervisor's supervisory and/or administrative authority." (Def. 56.1 ¶ 196 (quoting 3020-a Opinion and Award 41-42); Pl. 56.1 ¶ 196.) While recognizing Plaintiff's right to "challenge any perceived or actual injustices that he feels that he was subjected to by the administration," the hearing officer made clear that Plaintiff's decision to exercise such rights "does not absolve him of his duties and responsibilities as an employee," including "being professional, subordinate, and compliant with directives pertaining to professional development issued by his superiors at Brownsville Academy."
Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Kwong v. Bloomberg, 723 F.3d 160, 165 (2d Cir.2013); Redd v. N.Y. Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012). The role of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir.2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue of fact exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S.
Plaintiff alleges that Defendants discriminated against him by treating him differently because of his religion and failing to provide him with religious accommodations. Title VII makes it unlawful for an employer "to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual ... because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). An individual's "religion" includes not just religious beliefs, but "all aspects of religious observance and practice," unless the employer demonstrates that it is unable to reasonably accommodate that observance or practice "without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j); see also Cosme v. Henderson, 287 F.3d 152 (2d Cir.2002) (stating that "Congress delineated the scope of an employer's duties... by defining `religion' in a substantively significant way"); Siddiqi v. N.Y. Health & Hospitals Corp., 572 F.Supp.2d 353, 369 (S.D.N.Y.2008) ("Courts interpret [42 U.S.C. § 2000e(j)] to mean that an employer cannot discriminate against any employee on the basis of the employee's religious beliefs unless the employer shows that he cannot reasonably accommodate the employee's religious needs without undue hardship on the conduct of the employer's business." (citations and internal quotation marks omitted)). Thus, "[a] plaintiff may claim a violation of religious discrimination under Title VII under theories of either disparate treatment or denial of reasonable accommodation." Bind v. City of New York, No. 08-CV-11105, 2011 WL 4542897, at *9 (S.D.N.Y. Sept. 30, 2011) (citing Feingold v. New York, 366 F.3d 138, 149 (2d Cir.2004) (disparate treatment) and Cosme, 287 F.3d at 158 (denial of reasonable accommodation)).
To establish a disparate treatment discrimination claim under Title VII, Plaintiff can either (1) "show[] that he has suffered an adverse job action under circumstances giving rise to an inference of discrimination on the basis of race, color, religion, sex, or national origin," or (2) "demonstrate[e] that harassment on one or more of these bases amounted to a hostile work environment." Feingold, 366 F.3d at 149; see also Bind, 2011 WL 4542897, at *9 ("A disparate treatment claim ... may be established by showing either (1) adverse job action under circumstances giving rise to an inference of discrimination on the basis of religion, or (2) harassment on the basis of religion that amounts to a hostile work environment." (citing Feingold, 366 F.3d at 149)); see also Marmulszteyn v. Napolitano, 523 Fed.Appx. 13, 15 (2d Cir.2013) (to make out a disparate treatment claim a plaintiff must "show that he suffered an adverse employment action" and present "evidence giving rise
Title VII disparate treatment religious discrimination claims are assessed using the burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
To establish a prima facie case of religious discrimination based on disparate treatment, a plaintiff must show "that: `(1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to the inference of discrimination.'" Marmulszteyn, 523 Fed.Appx. at 15 (quoting Ruiz, 609 F.3d at 492); see also Yoselovsky v. Associated Press, 917 F.Supp.2d 262, 273 (S.D.N.Y. 2013) (citing Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.2012) and Stratton v. Dep't for the Aging, 132 F.3d 869, 879 (2d Cir. 1997)). Plaintiff can satisfy the first three elements of his prima facie case.
Plaintiff asserts that he is a "Hasidic ultraorthodox Jew." (Pl. 56.1 ¶ 2.) Defendants concede that Plaintiff, as a Hasidic Jew, is a member of a protected class, satisfying the first element of his prima facie case. (See Def. Mem. 4 (Plaintiff "is a member of protected classes in the categories of age and religion").) See also Weiss v. Dep't of Educ. of City of N.Y., No. 09-CV-1689, 2012 WL 1059676, at *7 (S.D.N.Y. Mar. 29, 2012) ("Being Jewish, he is a member of a protected class...."); Pesok v. Hebrew Union Coll.-Jewish Inst. of Religion, 235 F.Supp.2d 281, 285 (S.D.N.Y.2002) ("As a Jew, [plaintiff] is a member of a protected class on the basis of his religion." (citing Meiri v. Dacon, 759 F.2d 989 (2d Cir.1985))). Therefore this element is satisfied.
Plaintiff asserts that he suffered several adverse employment actions. Although not clearly stated in the Complaint or his opposition to the motion for summary judgment, at oral argument Plaintiff listed his alleged adverse employment actions as: (1) the unsatisfactory performance evaluations which led to the initiation of 3020-a charges, culminating in a 60-day suspension of Plaintiff; (2) the denial of time off for religious observance; (3) being disturbed at home on a Jewish holiday; and (4) the investigation by OEO of alleged biased conduct by Plaintiff against some of his students. (Oral Arg. Tr. at 7:10-16:23.) In order to establish an adverse action, Plaintiff must demonstrate that he suffered "a materially adverse change in h[is] employment status or in the terms and conditions of his employment." Kessler v. Westchester Cnty. Dep't of Soc. Servs., 461 F.3d 199, 207 (2d Cir. 2006).
Plaintiff's unsatisfactory performance evaluations which led to the initiation of 3020-a charges culminating in the suspension of Plaintiff qualify as adverse employment actions since Plaintiff suffered a "materially adverse change in the terms and conditions of employment ... [that was] more disruptive than a mere inconvenience or an alteration of job responsibilities." Bowles v. N.Y.C. Transit Auth., 285 Fed.Appx. 812, 814 (2d Cir.2008) (citations and internal quotation marks omitted); see also Farina v. Branford Bd. of Educ., 458 Fed.Appx. 13, 17 (2d Cir.2011) ("While negative employment evaluation letters[] or reprimands may be considered adverse employment actions," that is not the case where there is "no proof that [the] evaluation had any effect on the terms and conditions of [the plaintiff's] employment." (citations and internal quotation marks omitted)); Taylor v. N.Y.C. Dep't of Educ., No. 11-CV-3582, 2012 WL 5989874, at *7 (E.D.N.Y. Nov. 30, 2012) (negative performance evaluation that triggers negative consequences to the conditions
Plaintiff's additional adverse employment action claims — denial of time off for a religious observance on a non-holiday, being disturbed at home during a religious holiday,
Although Defendants argue otherwise, Plaintiff is qualified for the position and satisfies this element. "To show `qualification' sufficiently to shift the burden... to the employer, the plaintiff need not show perfect performance or even average performance." Gregory v. Daly, 243 F.3d 687, 696 (2d Cir.2001). "Instead, she need only make the minimal showing that she possesses the basic skills necessary for performance of [the] job." Id. (alteration in original) (citation and internal quotation marks omitted); see also Kaboggozamusoke v. Rye Town Hilton Hotel, 370 Fed. Appx. 246, 248 n. 1 (2d Cir.2010) ("[A]ll that is required is that the plaintiff establish basic eligibility for the position at issue." (alteration in original) (citation omitted)); Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir.2001) ("As we have repeatedly held, the qualification necessary to shift the burden to defendant for an explanation of the adverse job action is minimal; plaintiff must show only that he possesses the basic skills necessary for performance of the job. As a result, especially where discharge is at issue and the employer has already hired the employee, the inference of minimal qualification is not difficult to draw." (alteration, citations and internal quotation marks omitted)); Hird-Moorhouse v. Belgian Mission to United Nations, No. 03-CV-9688, 2010 WL 3910742, at *4 (S.D.N.Y. Oct. 5, 2010) ("Plaintiff need show only that he `possesses the basic skills necessary for performance of [the] job.'" (quoting Slattery, 248 F.3d at 92 (alteration in original))). However, a trail of negative performance reviews can serve as evidence that a plaintiff is not qualified for his position. See, e.g., Grant v. Rochester City Sch. Dist., No. 10-CV-6384, 2013 WL 3105536, at *5 (W.D.N.Y. June 18, 2013) (finding negative mid-year report and year-end evaluation to be evidence of Plaintiff's lack of qualification); Bailey v. Frederick Goldman, Inc., No. 02-CV-2429, 2006 WL 738435, at *4 (S.D.N.Y. Mar. 23, 2006) (finding trail of performance reviews and improvement plans that documented plaintiff's deteriorating performance to be evidence of plaintiff's lack of qualification).
Here, Plaintiff received several unsatisfactory performance evaluations during the 2009-2010 and 2010-2011 school years, and Defendants sought his termination in part because of these evaluations. (See generally 3020-a Opinion and Award.) However, after a 3020-a hearing, the hearing officer declined to terminate Plaintiff. (Id. at 43.) The hearing officer concluded that DOE's assessment of Plaintiff's performance as "mediocre" was accurate but determined that being "mediocre is not incompetent."
Inference of discrimination "is a `flexible [standard] that can be satisfied differently in differing factual scenarios.'" Howard v. MTA Metro-N. Commuter R.R., 866 F.Supp.2d 196 (S.D.N.Y.2011) (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir.1996)). "No one particular type of proof is required to show that Plaintiff's termination occurred under circumstances giving rise to an inference of discrimination." Ofoedu v. St. Francis Hosp. & Med. Ctr., No. 04-CV-1707, 2006 WL 2642415, at *14 (D.Conn. Sept. 13, 2006). An inference of discrimination can be drawn from circumstances such as "the employer's continuing, after discharging the plaintiff, to seek applicants from persons of the plaintiff's qualifications to fill that position"; "the employer's criticism of the plaintiff's performance in ethnically degrading terms"; "its invidious comments about others in the employee's protected group"; "the more favorable treatment of employees not in the protected group"; or "the sequence of events leading to the plaintiff's discharge." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir.2001) (quoting Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.1994)). However, a plaintiff's own subjective belief that he was discriminated against because of his religion is insufficient to sustain a religious discrimination claim. See Saqib v. Stein deVisser & Mintz, PC, ___ Fed.Appx. ___, ___, 2010 WL 2382253, at *1 (2d Cir. June 15, 2010) (holding that in order "[t]o defeat summary judgment" on plaintiff's claim for religion, race, color, and national origin discrimination plaintiff "may not rely on conclusory allegations or unsubstantiated speculation"); Boyar v. City of New York, No. 10-CV-65, 2010 WL 4345737, at *4 (S.D.N.Y. Oct. 28, 2010) (finding that "[w]hile [plaintiff] states his belief that his [Jewish] religion played a role in these decisions, personal belief is insufficient to defeat defendants' summary judgment motion" on plaintiff's discrimination claim (citation and internal quotation marks omitted)); Sicular v. N.Y.C. Dep't of Homeless Servs., No. 09-CV-0981, 2010 WL 423013, at *19 (S.D.N.Y. Feb. 4, 2010) ("[The plaintiff's] personal belief ... that his being Jewish played into the prejudices of the individual defendants and reinforced their animosity against him is insufficient to defeat defendants' summary judgment motion."), report and recommendation adopted, No. 09-CV-0981, 2010 WL 2179962 (S.D.N.Y. May 28, 2010), aff'd, 455 Fed.Appx. 129 (2d Cir.2012); see also Meiri, 759 F.2d at 998 (holding that "conclusory allegations of [religious] discrimination are insufficient" to defeat summary judgment, and "[t]o allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of [religious] discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases").
Plaintiff alleges that Defendants took certain actions against him and knew of certain remarks that were made about his religion which they did not address, all of which demonstrate that the adverse employment actions occurred under circumstances which give rise to an inference of discrimination. The actions and comments Plaintiff alleges give rise to an inference of discrimination include: (1) the campaign by DOE administrator to paint him as angry and racially prejudiced against the African-American students; (2) accusing him of putting a "curse" on Robinson; (3)
Assuming, without deciding, that Plaintiff can show an inference of discrimination, Plaintiff's religious discrimination claim nevertheless fails because Plaintiff cannot show that Defendants' legitimate, nondiscriminatory explanation for Defendants' unsatisfactory ratings or the 3020-a charges which resulted in the 60-day suspension of Plaintiff is pretextual and the actions taken with regard to Plaintiff were motivated at least in part by religious discrimination.
Defendants have articulated a legitimate, non-discriminatory reason for the unsatisfactory performance ratings and the 3020-a charges which resulted in the 60-day suspension of Plaintiff. See Broich v. Inc. Vill. of Southampton, 462 Fed. Appx. 39, 42 (2d Cir.2012) ("If a plaintiff successfully establishes a prima facie case of discrimination, the defendant may rebut that showing by articulating a legitimate, non-discriminatory reason for the employment action." (citation and internal quotation marks omitted)). Defendants have presented evidence that the unsatisfactory ratings and the 3020-a charges which resulted in the 60-day suspension of Plaintiff were a result of Plaintiff's unsatisfactory teaching performance, lack of receptivity to constructive criticism and professional development opportunities, and unprofessional conduct towards students. (3020-a Opinion and Award 32-35, 37-38, 41-42.) See Gregory, 243 F.3d at 696 ("An employer's dissatisfaction with even a qualified employee's performance may, of course, ultimately provide a legitimate, non-discriminatory reason for the employer's adverse action."); see also Viola v. Philips Med. Sys. of N.A., 42 F.3d 712, 718 (2d Cir. 1994) (explaining that an employee's disagreement with an employer's negative performance evaluation is not enough to support a discrimination claim); Yoselovsky, 917 F.Supp.2d at 275-76 (finding that the plaintiff's failure to improve to an acceptable level was sufficient to meet the defendant's burden); E.E.O.C. v. Town of Huntington, No. 05-CV-4559, 2008 WL 361136, at *7 (E.D.N.Y. Feb. 8, 2008) ("Because poor job performance constitutes a legitimate, nondiscriminatory reason, [d]efendants have satisfied their burden of production."). Defendants have met their burden.
To avoid summary judgment, Plaintiff must offer evidence from which a reasonable jury could conclude by a preponderance of the evidence that religious discrimination played a role in the adverse actions taken against Plaintiff. See Israel v. Napolitano, No. 08-CV-1112, 2010 WL 3338638, at *3 (N.D.N.Y. Aug. 24, 2010) ("[T]o avoid summary judgment, the plaintiff is not required to show that the employer's proffered reasons were false or
Plaintiff argues that the unsatisfactory ratings and the 3020-a hearing which resulted in his 60-day suspension without pay were pretext for religious animus because "Plaintiff never received an unsatisfactory annual rating at [Brownsville Academy] before Principal Robinson arrived at the school," (Pl. Opp'n 11), implying personal bias on the part of Robinson.
Defendants repeatedly met with Plaintiff, commended him on his strengths, noted areas in need of improvement, and offered assistance to help Plaintiff achieve satisfactory performance ratings, further undermining Plaintiff's argument that Defendants' actions were pretext. (See, e.g., McNally Decl. Exs. P, Q, R, S, V, BB, KK, LL, PP, QQ, SS, TT, UU, XX, CCC.) For example, Plaintiff was commended for his "good rapport" with his students, (McNally Decl. Ex Q), his neat and well decorated classroom, (McNally Decl. Ex. S), his efforts to infuse technology into his curriculum, (McNally Decl. Exs. V, LL), and his "real world" examples during lessons, (McNally Decl. Ex. LL). Defendants offered specific suggestions to Plaintiff to address areas in need of improvement, such as Plaintiff's need to "encourag[e] scholars to reflect on the concept of the day," "include a wrap up of the lesson," "check for understanding by asking probing questions, observing and reviewing scholars work, and [then] make changes as necessary to ensure that teaching and learning is taking place," having the students "share out by having them transcribe their work on to the chalkboard, present their answers to the class and have their peers review and comment on
Viewing the evidence in the light most favorable to Plaintiff, the Court finds that no reasonable jury could conclude that religious discrimination played any role in Plaintiff's unsatisfactory performance evaluations or the initiation of 3020-a charges, which charges resulted in the suspension of Plaintiff for 60-days without pay. Plaintiff has failed to meet his burden to prove that Defendants' justification for Plaintiff's unsatisfactory ratings and the 3020-a charges which resulted in the 60-day suspension of Plaintiff without pay were pretextual for religious discrimination. Plaintiff's claims of religious discrimination based on disparate treatment pursuant to Title VII and NYSHRL are without merit and are dismissed. Nassar, 570 U.S. at ___, 133 S.Ct. at 2522-23; see also Gumbiner v. Williams-Sonoma, Inc., No. 05-CV-2569, 2006 WL 870445, at *7 (S.D.N.Y. Mar. 30, 2006) ("Plaintiff has not provided any evidence to rebut the assertion that Ms. Murtha recommended Plaintiff's termination because of unacceptable job performance." (citing Garvin v. Potter, 367 F.Supp.2d 548, 565-66 (S.D.N.Y. 2005))); Garvin, 367 F.Supp.2d at 565-66 ("Each of the disciplines was for a reason, such as failure to follow instructions, that was unrelated to the failure to work on Saturdays or Jewish holidays.... The plaintiff's suspicions of [religious] discrimination in the absence of any supporting evidence cannot defeat a motion for summary judgment.").
To establish a prima facie case of religious discrimination based on failure to accommodate, a plaintiff must prove that: "(1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; [and] (3) he or she was disciplined for failure to comply with the conflicting employment requirement." Bowles, 285 Fed.Appx. at 813 (citations and internal quotation marks omitted); see also Baker v. Home Depot, 445 F.3d 541, 546 (2d Cir.2006); Muktadir v. Bevacco Inc., No. 12-CV-2184, 2013 WL 4095411, at *2 (E.D.N.Y. Aug. 13, 2013); Chukwueze v. NYCERS, 891 F.Supp.2d 443, 453 (S.D.N.Y.2012).
To satisfy the first element, "whether a plaintiff has a `bona fide religious belief,' the Court's analysis is limited to whether the beliefs professed by the plaintiff are sincerely held and whether they are, in his own scheme of things, religious." Hickey v. State Univ. of N.Y. at Stony Brook Hosp., No. 10-CV-1282, 2012 WL 3064170, at *6 (E.D.N.Y. July 27,
"To satisfy the second element, a plaintiff must properly notify the employer of the plaintiff's conflicting religious belief." Hickey, 2012 WL 3064170, at *7; Massie v. Ikon Office Solutions, Inc., 381 F.Supp.2d 91, 100 (N.D.N.Y.2005) (collecting cases). Knowledge that an employee has strong religious beliefs does not place an employer on notice that the employee might engage in any religious activity. See Knight v. Conn. Dep't of Public Health, 275 F.3d 156, 167 (2d Cir.2001) (holding that an employer's knowledge that employees had particular religious beliefs was insufficient to put their employers on notice of their need to engage in particular religious activity because "[t]o hold otherwise would place a heavy burden on employers, making them responsible for being aware of every aspect of every employees' religion which could require an accommodation" (citing Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1020 (4th Cir. 1996) ("Knowledge that an employee has strong religious beliefs does not place an employer on notice that she might engage in any religious activity...."))); Hickey, 2012 WL 3064170, at *7 ("[T]he Court recognizes that knowledge that an employee has strong religious beliefs does not place an employer on notice that he might engage in any religious activity...." (alteration, citation and internal quotation marks omitted)); Massie, 381 F.Supp.2d at 99 (same).
To satisfy the third element, a plaintiff must show that he suffered an adverse employment action for failing to comply with the employment requirement that conflicted with his religious belief. See Edwards v. Elmhurst Hosp. Ctr., No. 11-CV-4693, 2013 WL 839535, at *4 (E.D.N.Y. Feb. 15, 2013) ("The third prong requires some adverse employment action — typically, discipline, demotion, transfer or termination — for refusing to comply with the conflicting employment requirement." (alterations and citation omitted)), report and recommendation adopted, No. 11-CV-4693, 2013 WL 828667 (E.D.N.Y. Mar. 6, 2013).
If the employee establishes a prima facie case, "the employer must offer him or her a reasonable accommodation, unless doing so would cause the employer to suffer an undue hardship." Baker, 445 F.3d at 546 (alteration, citation and internal quotation marks omitted). "[T]o avoid Title VII liability, the employer need not offer the accommodation the employee prefers. Instead, when any reasonable accommodation is provided, the statutory inquiry ends." Cosme, 287 F.3d at 158; see also Baker, 445 F.3d at 548 ("We do note that employees are not entitled to hold out for the most beneficial accommodation." (citation and internal quotations omitted)); Vallejo v. Four Seasons Solar Products, Inc., No. 07-CV-2991, 2011 WL 1153812, at *6 (E.D.N.Y. Mar. 28, 2011) (holding that the employer need not offer the accommodation the employee prefers).
Defendants were aware that Plaintiff is an observant Hasidic ultraorthodox Jew and observes Jewish holidays and kosher dietary restrictions. Because Plaintiff cannot demonstrate that his religious belief or practice conflicted with any employment requirement or that he was disciplined for failing to comply with any conflicting employment requirement, Plaintiff cannot establish religious discrimination based on a failure to accommodate.
Plaintiff has failed to identify any employment requirement that has conflicted with his religious beliefs or practice. Plaintiff asserts that Defendants have failed to accommodate his religious practice by denying him kosher food at school meetings, denying his request for time off to bake matzahs for a religious holiday in 2010, and calling Plaintiff at home on a Sukkot holiday in 2010. (Pl. Opp'n 9-10; Weber Day 1 Tr. 125:21-23.)
Plaintiff was never prevented through any action or policy of Defendants from complying with his religious dietary restrictions. Plaintiff could, and the record demonstrates that Plaintiff did, purchase kosher food for himself. Defendants accommodated Plaintiff's dietary restrictions by reimbursing Plaintiff for his purchase of kosher food. Plaintiff complains that while he was sometimes reimbursed for purchasing his own kosher meals, on one occasion he was not. (Pl. Opp'n 10; Weber Day 1 Tr. 176:21-25.) However, at no time was Plaintiff prevented from complying with his religious dietary restrictions. Plaintiff has not shown that the denial of kosher food or the denial of reimbursement on one occasion conflicts with any employment requirement.
Plaintiff complains that he was denied permission to take off a day to bake matzahs for Passover in 2010. (Pl. Opp'n 9; Weber Day 1 Tr. 130:15-131:17.) Plaintiff was not required to work on Jewish holidays and Plaintiff admits that every request to take off a Jewish holiday where he was not permitted to work by Jewish law was accommodated by Defendants. (Weber Day 1 Tr. 130:15-19, 131:13-17.) Plaintiff admits that although the day he sought to take off to bake matzahs was "important to [him]," it was not a Jewish holiday and he was not prevented from working because of his religious beliefs. (Id. at 131:13-17.) Plaintiff does not assert that he needed to take the day off because of a "bona fide" religious belief. Plaintiff therefore cannot show that denying him the day off to bake matzahs was a conflict with his religious beliefs or practice. See Leifer v. New York State Div. of Parole, 391 Fed.Appx. 32, 34 (2d Cir.2010) (allowing Jewish employee to miss work obligations "on account of the Jewish holidays... satisf[ied] the requirement that [defendant] provide reasonable accommodations for religious observances").
Plaintiff complains that as a result of Defendants not knowing that Plaintiff was off for the Sukkot holiday, he was disturbed at home. (Pl. Opp'n 9; Weber Day 1 Tr. 125:11-126:26.) Plaintiff was called at home on the Sukkot holiday in 2010 because Defendants did not have a record that Plaintiff would be taking the day off. (Weber Day 1 Tr. 126:6, 21-25.) Plaintiff does not identify any employment requirement that conflicted with the exercise of his religious beliefs and practice to take off from work for this holiday. The fact that Plaintiff was required to provide Defendants with notice in advance of taking the day off is not in conflict with Plaintiff's religious beliefs. See Douglas v. Eastman Kodak Co., 373 F.Supp.2d 218, 224 (W.D.N.Y.2005) (holding that requiring plaintiff to comply with vacation notice call-in policy, where plaintiff took off Fridays to observe his Sabbath and plaintiff's supervisor knew he would not be coming in, was insufficient evidence of discrimination and did not make the accommodation unreasonable, and noting that "[n]othing about plaintiff's religious beliefs prevented him from adhering to the 24-hour advance vacation notice policy").
Plaintiff cannot make out a religious discrimination case based on failure of Defendants
Plaintiff has not shown that denying him kosher food, denying him time off to bake matzahs, or calling him at home on Sukkot resulted in any discipline for failure to comply with any conflicting employment requirement. The only alleged disciplinary action was a letter to Plaintiff's file after Plaintiff took the day off for Sukkot and Defendants advised him that they did not have a record of any request to be absent for the day. (See Weber Day 1 Tr. 126:21-25.) Plaintiff has not presented any evidence that he received a letter in his file because he took the day off for the Sukkot holiday. In addition, even assuming a letter was placed in Plaintiff's file, Plaintiff has not shown that the alleged note in his file resulted in any adverse action and the note is therefore insufficient to show that he was disciplined for the purposes of satisfying the elements of a reasonable accommodation discrimination claim. See Leifer, 391 Fed.Appx. at 33-34 ("[The plaintiff's] claim of discrimination based upon defendants' failure to accommodate his religious practices fails because there is insufficient evidence showing that [the plaintiff] suffered an adverse employment action." (citations omitted)); Baker, 445 F.3d at 546 (stating that plaintiffs who allege discrimination for failure to accommodate must show, inter alia, that they suffered an adverse employment action for failure to comply with the employment requirement that conflicted with their religious belief); Gueye v. Gutierrez, 277 Fed. Appx. 70, 71 (2d Cir.2008) ("We agree with the District Court that [the plaintiff] did not assert a prima facie claim for religious discrimination because he did not allege that he was disciplined for failing to comply with an employment demand that conflicted with his religious beliefs."); Farina, 458 Fed.Appx. at 17 (finding that "[w]hile negative employment evaluation letters[] or reprimands may be considered adverse employment actions" for purposes of an employment discrimination claim, that is not the case "[w]here there is no proof that [the] evaluation had any effect on the terms and conditions of [the plaintiff's] employment" (citations and internal quotation marks omitted)); see also Taylor, 2012 WL 5989874, at *7 (noting that to qualify as an adverse employment action, a
The NYCHRL does not differentiate between discrimination and hostile work environment claims; rather, both are governed by N.Y.C. Admin. Code § 8-107(1)(a). Sotomayor v. City of New York, 862 F.Supp.2d 226, 261 (E.D.N.Y. 2012) ("Hostile work environment claims are analyzed under the same provision of the NYCHRL as discrimination claims."), aff'd, 713 F.3d 163 (2d Cir.2013) (per curiam). The NYCHRL provides that it is unlawful for an employer "to refuse to hire or employ or to bar or to discharge from employment" an individual or "to discriminate against such person in compensation or in terms, conditions or privileges of employment" "because of the actual or perceived ... creed ... of any person." N.Y.C. Admin. Code § 8-107(1)(a). The NYCHRL further provides that it is unlawful for an employer "to impose upon a person as a condition of... retaining employment any terms or conditions, compliance with which would require such person to violate, or forego a practice of, his or her creed or religion." N.Y.C. Admin. Code § 8-107(3). Though for many years the Second Circuit "construed the NYCHRL to be coextensive with its federal and state counterparts," the New York City Council amended the NYCHRL in 2005 and "[a]s amended, the NYCHRL requires an independent analysis." Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 108-09 (2d Cir.2013). The NYCHRL requires that "its provisions `be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws ... have been so construed.'" Id. at 109 (quoting N.Y.C. Admin. Code § 8-130); see also Russo v. N.Y. Presbyterian Hosp., 972 F.Supp.2d 429, 450, 2013 WL 5346427, at *14 (E.D.N.Y. Sept.23, 2013) (same); Kerman-Mastour v. Fin. Indus. Regulatory Auth., Inc., 814 F.Supp.2d 355, 365-66 (S.D.N.Y.2011) ("[T]he Second Circuit has directed the district courts to conduct an analysis of the NYCHRL claims that is separate from that undertaken for Title VII and New York State Human Rights Law claims." (citing Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278-79 (2d Cir.2009))).
"To establish a ... discrimination claim under the NYCHRL, the plaintiff need only demonstrate by a preponderance of the evidence that []he has been treated less well than other employees because of [his protected status]." Mihalik, 715 F.3d at 110; see also Russo, 972 F.Supp.2d at 450, 2013 WL 5346427, at *15 ("Under the NYCHRL, a plaintiff need ... only [establish] that []he has been treated less well than other employees because of [his protected status]." (citation and internal quotation marks omitted)); Teasdale v. City of
Since clarifying the inquiry for NYCHRL disparate treatment discrimination claims in Mihalik, the Second Circuit has not had occasion to address the standard applicable to reasonable accommodation discrimination claims. Prior to Mihalik, courts in this Circuit required a plaintiff asserting a NYCHRL religious accommodation claim to "show that (1) they held a bona fide religious belief conflicting with an employment requirement; (2) they informed their employers of this belief; and (3) they were disciplined for failure to comply with the conflicting employment requirement." Stavis v. GFK Holding, Inc., 769 F.Supp.2d 330, 335 (S.D.N.Y.2011) (finding that the plaintiff could not make out a NYCHRL or NYSHRL religious accommodation claim where he was never denied a religious holiday and never told that he could not take a religious day off); Price v. Cushman & Wakefield, Inc., 829 F.Supp.2d 201, 222 (S.D.N.Y.2011) (holding that a plaintiff bringing a NYCHRL religious accommodation claim "must show: (1) he has a bona fide religious belief that conflicts with an employment requirement; (2) he informed the employer of his belief; and (3) he was disciplined for failure to comply with the conflicting employment requirement"); see also Muktadir, 2013 WL 4095411, at *2 (holding, even after Mihalik, that the same standard governs Title VII and NYCHRL religious accommodation claims). Plaintiff cannot meet this test, for the reasons set forth in the discussion of his Title VII and NYSHRL religious accommodation claims, nor can he show even under the liberal construction of the NYCHRL required by Mihalik that he was discriminated against based on a failure to accommodate his religious
Viewing the evidence in the light most favorable to Plaintiff, Plaintiff has not shown that religious discrimination played any role in Defendants' treatment of him. Plaintiff has not put forth evidence from which a reasonable jury could conclude that he was treated less well because of his religion. Nor has Plaintiff put forth any evidence that he was subjected to any employment condition requiring him to violate or forego a practice of his religion. Defendants' motion for summary judgment as to Plaintiff's claim for religious discrimination pursuant to the NYCHRL is granted. See Lugo v. City of New York, 518 Fed.Appx. 28, 30 (2d Cir.2013) ("While the NYCHRL is indeed reviewed independently from and more liberally than federal or state discrimination claims, it still requires a showing of some evidence from which discrimination can be inferred." (citation and internal quotation marks omitted)).
Plaintiff claims that Defendants retaliated against him for filing a complaint with the State Division of Human Rights alleging age and religious discrimination.
"To make out a prima facie case of retaliation, a plaintiff must demonstrate that `(1) [he] engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.'" Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C., 716 F.3d 10, 14 (2d Cir.2013) (per curiam) (quoting Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir.2012)); see also Summa, 708 F.3d at 125; Schiano, 445 F.3d at 608. The burden at the summary judgment stage for Plaintiff is "`minimal' and `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." Jute, 420 F.3d at 173 (citations omitted). Plaintiff satisfies the first, second and third elements because he filed a complaint with the State Division of Human Rights alleging age and religious discrimination, DOE was notified that he filed a complaint with the State Division of Human Rights and thereafter Plaintiff was subject to negative performance evaluations, the OEO investigation and, ultimately, 3020-a charges. However,
Plaintiff's filing of a complaint alleging age and religious discrimination with the State Division of Human Rights was protected activity. See Brooks, 2013 WL 3328044, at *4 ("Plaintiff engaged in protected activity when he filed a charge of discrimination with the NYSDHR."); Lovell v. Maimonides Medical Center, No. 11-CV-4119, 2013 WL 4775611, at *16 (E.D.N.Y. Sept. 6, 2013) (noting that the plaintiff's filing of a complaint with NYSDHR did constitute protected activity).
Plaintiff filed a complaint with the State Division of Human Rights on November 9, 2010, alleging age and religious discrimination, (Def. 56.1 ¶ 104; Pl. 56.1 ¶ 104), and that complaint was subsequently served on DOE in November 2010, (see Glass Decl. ¶ 3; Def. Reply), satisfying the second element. "To make out a prima facie case of retaliation, a plaintiff must demonstrate that ... the employer was aware of [the protected] activity...." Kelly, 716 F.3d at 14. "Plaintiff can satisfy the `knowledge' element of the prima facie case by demonstrating that his employer had general corporate knowledge of his protected acts at the time of the alleged retaliation." Stella v. Brandywine Sr. Living, Inc., No. 11-CV-1094, 2012 WL 3764505, at *6 (E.D.N.Y. July 9, 2012), report and recommendation adopted, No. 11-CV-1094, 2012 WL 3764500 (E.D.N.Y. Aug. 27, 2012); see also Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 92 (2d Cir.2011) ("Even if the [corporate defendant's] agents who carried out the adverse action did not know about the plaintiff's protected activity, the `knowledge' requirement is met if the legal entity was on notice."); Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 148 (2d Cir. 2010) ("[A] jury may `find retaliation even if the agent denies direct knowledge of a plaintiff's protected activities, for example, so long as the jury finds that the circumstances evidence knowledge of the protected activities or the jury concludes that an agent is acting explicitly or implicit[ly] upon the orders of a superior who has the requisite knowledge.'" (alteration in original) (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir.2000))); Dall, 966 F.Supp.2d at 194, 2013 WL 4432354, at *21 ("It is not necessary that Plaintiff prove that the specific actors knew of the protected activity as long as Plaintiff can demonstrate general corporate knowledge." (citations omitted)).
Defendants argue that Plaintiff cannot prove the knowledge element because Robinson did not know that Plaintiff had filed his complaint with the State Division of Human Rights until after the commencement of the OEO investigation. (Def. Mem. 25.) However, Plaintiff is only required to show general corporate knowledge. See Trivedi v. N.Y.S. Unified Court Sys. Office of Court Admin., 818 F.Supp.2d 712, 736 (S.D.N.Y.2011) ("A plaintiff need not prove that the specific actors within an organization were aware that the plaintiff made allegations of retaliation to make out a prima facie retaliation claim; rather, general corporate knowledge that the plaintiff has engaged in a protected activity is sufficient." (citations and internal quotation marks omitted)); Adams v. City of New York, 837 F.Supp.2d 108, 121 (E.D.N.Y.2011) (holding that "[t]o satisfy the knowledge requirement, nothing more is necessary than general corporate knowledge that the plaintiff has engaged
Plaintiff has sufficiently alleged that he suffered multiple adverse employment actions after he filed his complaint with the State Division of Human Rights alleging age and religious discrimination.
The institution of a 3020-a proceeding is an adverse employment action. See Huntington Union, 2012 WL 1077677, at *16 n. 21 ("[T]he 3020-a charges are clearly an adverse employment action because `the institution of disciplinary proceedings is sufficient in this circuit to constitute an adverse employment decision.'" (quoting Skehan v. Village of Mamaroneck, 465 F.3d 96, 106 (2d Cir.2006))). A suspension without pay also qualifies as an adverse employment action and here, Plaintiff was suspended for 60 days without pay at the conclusion of the 3020-a proceeding. See Lovejoy-Wilson, 263 F.3d at 223 ("[S]uspension without pay is sufficient to constitute an adverse employment action."); Satterfield v. United Parcel Serv., Inc., No. 00-CV-7190, 2003 WL 22251314, at *13 (S.D.N.Y. Sept. 30, 2003) ("[T]he one-day suspension ... arguably meets the `materially adverse' standard outlined by the Second Circuit....").
Plaintiff's unsatisfactory performance evaluations received after he filed his complaint with the State Division of Human Rights, the subsequent 3020-a charges filed against him and his 60-day suspension also qualify as adverse employment actions for retaliation purposes.
District courts in this Circuit have disagreed as to whether, in the retaliation context, an investigation may suffice to establish an adverse employment action, even where such investigation does not result in any discipline. Some courts have found that the commencement of an investigation, even without attendant negative consequences, is sufficient to establish an adverse employment action. See, e.g., O'Neal v. State Univ. of N.Y., No. 01-CV-7802, 2006 WL 3246935, at * 13 (E.D.N.Y. Nov. 8, 2006) (finding that a letter informing the plaintiff "that she had to submit to a disciplinary interview and that she was the subject of a disciplinary investigation" rendering "the prospect of [the plaintiff] being disciplined ... imminent" and "underscore[ing] the serious and formal nature of the disciplinary interview" by inviting the plaintiff to bring a union representative or attorney was "sufficient to constitute a `materially adverse' action" for purposes of Title VII retaliation claim (citation omitted)); cf. Eldridge v. Rochester City Sch. Dist., 968 F.Supp.2d 546, 560, No. 12-CV-6365L, 2013 WL 5104279, at *11 (W.D.N.Y. Sept. 13, 2013) ("I conclude that the pressure of an internal investigation, coupled with a veiled threat of an involuntary transfer, could dissuade a reasonable employee from engaging in protected activity, and thus adequately alleges an adverse employment action for the purposes of the Section 1983 retaliation claim."). Other courts have held that commencement of an investigation alone is not sufficient to establish an adverse employment actions. See, e.g., Wright v. Monroe Cmty. Hosp., No. 09-CV-6593, 2011 WL 3236224, at *7 (W.D.N.Y. July 28, 2011) ("Employee investigations, unwanted scrutiny from supervisors,
Plaintiff has satisfied this element by showing that he has suffered several adverse employment actions since the filing of his complaint with the State Human Rights Division.
Plaintiff can prove a causal connection between the filing of his complaint with the State Division of Human Rights and the initiation of the OEO investigation through temporal proximity. "[P]roof 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, 232 F.3d at 117; see also Dawson v. City of New York, No. 09-CV-5348, 2013 WL 4504620, at *16 (S.D.N.Y. Aug. 19, 2013) (same); Brooks, 2013 WL 3328044, at *4 (same). "[A] plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action." Gorzynski, 596 F.3d at 110 (citing Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir.2001)); see also El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) ("The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation...."); Feingold, 366 F.3d at 156 ("[T]he requirement that [Plaintiff] show a causal connection between his complaints and his termination is satisfied by the temporal proximity between the two."); Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir.2002) ("We have held that a close temporal relationship between a plaintiff's participation in protected activity and an employer's adverse actions can be sufficient to establish causation."). There is no brightline rule for how long after a plaintiff has engaged in the protected activity that the adverse action must have occurred to benefit from the inference, but the Second Circuit has held that periods as long as five months are not too long. Gorzynski, 596 F.3d at 110-11 ("Though [the Second Circuit] has not drawn a bright line defining, for the purposes of a prima facie case, the outer limits beyond which a temporal relationship is too attenuated to establish causation, [it has] previously held that five
Although it is unclear when the OEO investigation into comments made by Plaintiff was commenced, the statements from the students who complained about Plaintiff's comments are dated December 6, 2010, suggesting that the OEO investigation was commenced shortly after Plaintiff filed his complaint with the State Division of Human Rights on November 9, 2010. In addition, Plaintiff received unsatisfactory performance evaluations on December 6 and 20, 2010, February 15, April 15, and June 10, 2011, all of which were used as a basis for the 3020-a charges against Plaintiff, resulting in a 60-day suspension. Drawing all inferences in favor of Plaintiff, Plaintiff has met his minimum burden of demonstrating a causal connection between his protected activity and at least some adverse employment actions.
As discussed in the context of Plaintiff's discrimination claim, Defendants have articulated a legitimate reason for the unsatisfactory ratings which led to the commencement of the 3020-a proceeding, resulting in the 60-day suspension of Plaintiff. Defendants have shown that Plaintiff's teaching performance was unsatisfactory, that he refused to accept constructive criticism and professional development opportunities and that he was unprofessional towards the students. (See Part II.b.i.2.) Defendants have also shown that the OEO investigation was commenced in response to complaints by two students and a parent. Defendants have satisfied their burden.
Plaintiff cannot prove that but for his filing of the complaint with the State Division of Human Rights, he would not have received the additional unsatisfactory performance ratings or been subjected to the 3020-a charges or the OEO investigation. Under the recent Supreme Court decision in Nassar, "Title VII retaliation claims must be proved according to traditional principles of but-for causation.... This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." 570 U.S. at _____, 133 S.Ct. at 2533. Therefore, the plaintiff must show that retaliation was a but-for cause of the adverse employment action. See Russo, 972 F.Supp.2d at 454, 2013 WL 5346427, at *18 ("Title VII retaliation claims must be proved according to traditional principles of but-for causation ...." (alteration in original) (citation omitted)); Leacock v. Nassau Health Care Corp., No. 08-CV-2401, 2013 WL 4899723, at *11 (E.D.N.Y. Sept. 11, 2013) ("[D]uring the final stage of the burden shifting frame-work, the plaintiff must show that retaliation was a but-for cause of the adverse employment action." (citation and internal quotation marks omitted)); Dall, 966 F.Supp.2d at 192, 2013 WL 4432354, at *19 ("If the employer succeeds at the second stage, then the presumption of retaliation dissipates, and the plaintiff must show that, but for the protected activity, he would not have been terminated."); Moore, 2013 WL 3968748, at *14 (same); Brooks, 2013 WL 3328044, at *4 (S.D.N.Y. July 2, 2013) (stating that "but for" causation must be proved if the defendant articulates a legitimate, non-retaliatory reason for the adverse employment action).
In order to establish but-for causation, Plaintiff would have to prove that the adverse employment actions would not have occurred in the absence of a retaliatory motive. Plaintiff has provided no evidence that the additional unsatisfactory performance reviews, the 3020-a charges
Even under the "motivating factor" standard that was in use in the Second Circuit prior to the Supreme Court's recent decision in Nassar, 570 U.S. _____, 133 S.Ct. 2517, "temporal proximity — while enough to support a prima facie case — was insufficient to establish pretext." Ben-Levy v. Bloomberg, L.P., 518 Fed.Appx. 17, 19 (2d Cir.2013); see also Govori v. Goat Fifty, L.L.C., 519 Fed.Appx. 732, 734 (2d Cir.2013) ("[W]hile temporal proximity between events may give rise to a prima facie case of discrimination, `such temporal proximity is insufficient to satisfy [plaintiff's] burden to bring forward some evidence of pretext.'" (quoting El Sayed, 627 F.3d at 933)); Moore, 2013 WL 3968748, at *20 n. 13 (same). Thus, Plaintiff's claim cannot satisfy the prior more relaxed mixed-motive standard or Nassar's but-for standard. Moreover, based on the detailed record of Plaintiff's unsatisfactory performance, including the numerous unsatisfactory reviews prior to the filing of Plaintiff's complaint, as well as the complaints by the two students and the parent that resulted in the OEO investigation
Plaintiff's NYCHRL retaliation claim is also dismissed. "[T]o prevail on a retaliation claim under the NYCHRL, the plaintiff must show that []he took an action opposing [his] employer's discrimination, and that, as a result, the employer
Plaintiff also brings a § 1983 claim for violation of his constitutional right to equal protection pursuant to the Fourteenth Amendment as well as a claim for violation of his right to equal protection under the New York constitution. "[Section] 1983 and the Equal Protection Clause protect public employees from various forms of discrimination, including hostile work environment and disparate treatment" claims.
For the foregoing reasons, the Court grants Defendants' motion for summary judgment and the Complaint is dismissed in its entirety.
SO ORDERED.
