MEMORANDUM AND ORDER

GARAUFIS, United States District Judge.

Plaintiff Barbara A. Johnson, a former teacher with the New York City Board of Education ("Defendant"), brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981, the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"), New York Executive Law § 296 et seq., ("Executive Law"), and Article 8 of the New York City Administrative Code ("Administrative Code") against Defendant for race and age discrimination during her employment with Defendant.

On May 19, 2000, Defendant moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(c) on multiple grounds. For the reasons given below, the motion is granted.

I. Summary Judgment Standard

On a Rule 56(c) motion, summary judgment must be entered "against a party who fails to make a [factual] 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining whether a genuine issue of material fact exists, "the court must draw all reasonable inferences in favor of the nonmoving party." Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110 (2000). Where the moving party is the defendant, "[t]he district court should grant such a motion only if, after viewing the plaintiffs allegations in this favorable light, `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief.'" Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119 (2d Cir. 1991)), cert. denied, 113 S.Ct. 1387 (1993).

"[W]here the nonmoving party bears the burden of proof as to a particular issue, the moving party may satisfy his burden under Rule 56 by demonstrating an absence of evidence to support an essential element of the nonmovin art's claim." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991) (citingCelotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Then, "the burden shifts to the nonmoving party to come forward with persuasive evidence that his claim is not `implausible.'" Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988).

In employment discrimination cases, district courts must be "especially chary in handing out summary judgment . . . because in such cases the employer's intent is ordinarily at issue."Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996). Direct evidence of discrimination is not necessary, "since an employer who discriminates against its employee is unlikely to leave a well-marked trail." See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir. 2000). However, as a general rule, "the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829 (1985). Even in the employment discrimination context, "[w]hen no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994).

II. Facts

The following facts, viewed in the light most favorable to Plaintiff, are relevant to the instant motion. Plaintiff, an African-American woman born in 1933, was a teacher for Defendant from around 1964 until her retirement, effective August 22, 1995.See Plaintiff s Deposition 8, 9, 15, 450 (hereinafter "Pl. Dep."). Prior to her retirement, she held a master's degree in special education, was licensed to teach special education classes, and had tenure. See Plaintiffs Declaration ¶ 10 (hereinafter "Pl. Dec."). From 1981 until her retirement, Plaintiff taught special education for Defendant. See Pl. Dep. 14-15. Specifically, until the summer of 1993, she taught as an art cluster teacher at the P. 396 site, which served physically and mentally impaired children, in the Brooklyn P.S. 23 location.See Plaintiffs Amended Complaint ¶ 8 (hereinafter "Pl. Amend. Compl.").

While at P. 396, Plaintiffs performance was generally good. In the 29 years prior to the summer of 1993, Plaintiff received a total of six negative evaluations. See Pl. Dec. ¶ 7. She received a rating of "unsatisfactory" in 1985 and 1989 classroom observations and she was admonished in written reprimands in 1989 and 1990 for unprofessional conduct, including failure to complete Individualized Educational Plans for the students, excessive lateness, erratic attendance, refusing to cover a co-worker's class, sleeping during class, and failure to supervise her students. See Undisputed Facts ¶¶ 8-14.

In September of 1993, P. 396 moved out of the P.S. 23 location and was replaced by P. 771, which serves special education students with intensive social and emotional needs. See Pl. Amend. Compl. ¶ 9. Principal Sharon Izzo and Assistant Principal Rudy Giuliani discouraged her from teaching at P. 771 because the students were dangerous, hard to handle, and different than those in P. 396. See id. ¶ 11. The school officials ultimately left her with the decision of staying with P. 396 students at a different location or changing to P. 771 students at the P.S. 23 location. See Pl. Dec. ¶ 13-14. Neither Ms. Izzo nor Mr. Giuliani approached other P. 396 teachers about leaving P.S. 23.See id. ¶ 17.

Plaintiff opted to remain at the P.S. 23 location, mostly for reasons of personal convenience. See id. ¶ 13. During the 1993-94 school year, her first year at P. 771, she had seven recorded latenesses and seven recorded absences. See Undisputed Facts ¶ 21. Mr. Giuliani observed Plaintiff in the classroom and rated her lesson "unsatisfactory," then asked a teacher-trainer, Ms. Friedlander, to offer suggestions on instruction to Plaintiff.See Pl. Dec. ¶ 40. She received other ratings of "unsatisfactory" throughout the year. She was reprimanded for failing to properly supervise the children in her classroom, and she was reprimanded for failing to be prepared for class. See Undisputed Facts ¶¶ 22-27. Plaintiff disputed the assessments of her performance as factually disingenuous or unfairly "picayune," signing most of the evaluations under protest. See Pl. Dec. ¶¶ 25-42. She also claims that other teachers were not treated with the same criticism as she. See id. ¶¶ 58-59.

During the 1994-95 school year, Plaintiff was assigned to the position of classroom teacher. See id. ¶ 43. She was told that she was being replaced as art cluster teacher because she did not have a license in art. See id. ¶ 44. Her replacement as art cluster teacher was a white woman in her twenties or thirties. In her new position, Plaintiff continued to receive admonishments for lateness and absences, reprimands, and unsatisfactory ratings from classroom observations. She was admonished by Mr. Giuliani for failing to prepare her lesson plans and failing to decorate the classroom. She was reprimanded by Assistant Principal Oswaldo Roman for absences and latenesses. In addition, Plaintiffs class was formally observed on four different occasions during the school year by four different evaluators. In each, Plaintiffs performance was rated "unsatisfactory." See Undisputed Facts ¶¶ 30-34. For the period September 1994 through June 1995, Plaintiff received an overall performance rating of "unsatisfactory," the only teacher to receive such a rating. See Pl. Dec. ¶ 57. All the other teachers at the school, at least half of whom were African-American, received "satisfactory" ratings for that period. See Undisputed Facts ¶¶ 41-42. Plaintiff again disputed the negative evaluations from this year as unfair, inaccurate, and without factual basis.See Pl. Dec. ¶¶ 46-52. She asserts that the administration singled her out for unjustified criticisms. See id. ¶ 58-59. She admits that she had absences but explains them as the result of stress and deteriorating health caused by the negative treatment she received at school. See id. ¶ 66.

Before her retirement, Plaintiff filed collective bargaining grievances regarding her treatment. See NYCCHR Determination. She also wrote numerous letters to the Chancellor of the Board of Education, some of which were then filed with Defendant's Equal Employment Office. See Pl. Dec. ¶ 71. Supervisory Liaison Martin Groveman investigated Plaintiffs complaints that she was being treated unfairly and determined that Plaintiff had not been treated unfairly. See Undisputed Facts ¶¶ 36-37. She was informed that she could file a formal complaint with Defendant's EEO. She did not do so. See id. ¶¶ 38-39. Instead, around August 11, 1995, Plaintiff submitted an application for Service Retirement, participated in an Early Retirement Incentive package, and formally retired from Defendant on August 22, 1995, at the age of 61. See Service Retirement Application; Final Settlement Document. She claims to have retired because her working conditions became intolerable. See Pl. Dec. ¶ 69.

On July 11, 1995, Plaintiff filed a complaint with the New York City Commission of Human Rights ("NYCCHR"), on behalf of the Equal Employment Opportunity Commission ("EEOC"). See NYCCHR Determination and Order. She claimed disparate treatment, continual harassment, hostile work environment, and denial of equal terms and conditions of employment from July 1, 1993 to July 11, 1995 based on unlawful race, age, and color discrimination under the Administrative Code of the City of New York and Title VII. See id. The NYCCHR, finding no probable cause of unlawful discrimination, dismissed the complaint on March 29, 1996. See id. Plaintiff requested review, and, upon review, the NYCCHR again dismissed the complaint, on July 30, 1996. See NYCCHR Determination and Order After Review. The EEOC reviewed the complaint as well, concurred in the NYCCHR's findings and dismissal, and issued a right to sue on August 13, 1996. See EEOC Determination Letter.

On September 11, 1996, Plaintiff commenced her action in this Court. See Plaintiffs Original Complaint. She amended her complaint on July 13, 1999. See Pl. Amend. Compl. She claims that her performance ratings were pretextual, that she was subjected to hyperscrutiny and excessive observation, and that she was singled out for criticism and negative evaluations because of her age and race. See id. ¶ 15. Defendant has moved for summary judgment on the following grounds: Plaintiffs failure to exhaust administrative remedies; the applicability of a statute of limitations; Plaintiffs failure to sustain her prima facie case; and Plaintiffs failure to rebut Defendant's legitimate reason for her adverse employment circumstances.

III. Exhaustion of Administrative Remedies

Defendant asserts that this Court lacks jurisdiction over Plaintiffs Title VII and ADEA claims to the extent that they are based on constructive discharge and reassignment because those allegations were not included in Plaintiffs charge to the NYCCHR. Plaintiff counters that the claims are "reasonably related" to the allegations made in the NYCCHR charge.

Before a plaintiff can bring Title VII and ADEA claims in federal court, the EEOC must have an opportunity to review them.See 42 U.S.C. § 2000e-5(e) (Title VII); 29 U.S.C. § 626(d) (ADEA). This filing requirement puts the employer on notice of alleged discriminatory practices and encourages mediation and remedial action. See Shah v. New York St. Dep't of Civil Serv., 168 F.3d 610, 614 (2d Cir. 1999). A plaintiff may bring claims not specifically included in the EEOC charge only by demonstrating that the new claims are "reasonably related" to those reviewed by the EEOC. See Shah, 168 F.3d at 614; Malarkey v. Texaco. Inc., 983 F.2d 1204, 1208 (2d Cir. 1993). One rationale for this rule is grounded in notions of leniency and fairness to the plaintiff. See Butts v. City of New York Dep't of Hous. Preservation Dev., 990 F.2d 1397, 1402 (2d Cir. 1993) ("[r]ecognizing that EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff believes she is suffering"). Thus, courts may allow "claims not raised in the charge to be brought in a civil action where the conduct complained of would fall within the `scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Butts, 990 F.2d at 1402 (quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n. 10 (2d Cir. 1978)).

Here, Plaintiffs claims of constructive discharge and reassignment are sufficiently related to the NYCCHR charge to deem them investigated by the agency. The agency investigated incidents which occurred between July 1, 1993 and July 11, 1995. Those dates encompass Plaintiffs reassignment and constructive discharge. Moreover, the NYCCHR scrutinized Defendant's actions during this time for evidence of unlawful discrimination, on the basis of Plaintiffs race and age, amounting to disparate treatment, hostile work environment, continuous harassment, or unequal treatment in terms or conditions of employment. Evidence of constructive discharge encompasses and is related to the same facts charged in the complaint to the NYCCHR. Hence, this Court is not barred by the exhaustion requirement from entertaining Plaintiffs claims.

IV. The Statute of Limitations and the Continuous Violation Doctrine

Defendant submits that actions prior to September 14, 1994 are barred from this Court's consideration because Plaintiff failed to file her charge with the NYCCHR within 300 days of those actions. Plaintiff contends that the complained-of acts prior to and subsequent to September 14, 1994 are part of a single course of discriminatory conduct and thus part of a continuing violation.

Both Title VII and the ADEA require that a charge be brought before the EEOC within 300 days of the occurrence of the alleged discriminatory practice. See 42 U.S.C. § 2000e-5(e) (Title VII); 29 U.S.C. § 626(d) (ADEA). The running of this limitations period is tolled until the last discriminatory act in furtherance of a continuous practice and policy of discrimination. See Miller v. International Tel. Tel. Corp., 755 F.2d 20, 25 (2d Cir.), cert. denied, 474 U.S. 851 (1985). The Second Circuit has recognized this "continuing violation" exception in both Title VII and ADEA cases. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997). A continuing violation, however, may not be based upon a completed act of discrimination. See Blesedell v. Mobile Oil Co., 708 F. Supp. 1408, 1412, 1414 (S.D.N.Y. 1989) (citingDelaware St. College v. Ricks, 449 U.S. 250, 257 (1980)). Instead, a continuing violation comprises a series of related acts or the maintenance of a discriminatory system. See Blesedell, 708 F. Supp. at 1415. In other words, the violation must be "accomplished through a specific official policy or mechanism." Butts, 990 F.2d at 1404. "Discrete incidences of discrimination that are unrelated to an identifiable policy or practice . . . `will not ordinarily amount to a continuing violation,' unless such incidents are specifically related and are allowed to continue unremedied for `so long as to amount to a discriminatory policy or practice.'" Lightfoot, 110 F.3d at 907 (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996)).

The facts, with all reasonable inferences drawn in Plaintiffs favor, cannot dispel the possibility that Defendant's acts comprise a continuing pattern. Most of the acts were at the direction of management officials at the school. Presumably, the principal and assistant principal set and direct policy and practice of observation, criticism, and discipline. As stipulated, the actions taken against Plaintiff are certainly related and are not discrete incidences. Thus, Plaintiff has sufficiently demonstrated that the disciplinary and monitoring procedures are part of a system or mechanism of management and review of teachers. The question is whether, in Plaintiffs case, the system comprises a practice of pernicious discrimination or a legitimate procedure to ensure proper teaching standards are met. Consequently, this Court will consider whether any or all the incidents affecting Plaintiffs employment rise to the level of impermissible discrimination on the basis of race or age.

V. Title VII and ADEA Claims

Title VII states: "It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a).

In a similar vein, the ADEA states: "It shall be unlawful for an employer-( 1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment because of such individual's age." 29 U.S.C. § 623(a). The protections of the ADEA are limited to those older than forty. See id. § 631(a).

The settled practice in the Second Circuit is to analyze ADEA claims under the familiar Title VII burden-shifting paradigm articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), see Galabya v. New York City Bd. of Educ., 202 F.3d 636, 639 (2d Cir. 2000), and the parties do not dispute Title VII's application. Consequently, this Court will analyze the two discrimination claims under the same Title VII standard.

A. The Prima Facie Case

A prima facie case of discrimination under Title VII and the ADEA entails the plaintiff showing (1) she was a member of a protected class at the time of the alleged discrimination, (2) she was qualified for the position, (3) she was subject to an adverse employment action, and (4) the action occurred under circumstances giving rise to an inference of impermissible discrimination. See McDonnell Douglas, 411 U.S. at 802; Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000). The burden of establishing a prima facie case is minimal. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (asserting that the Title VII prima facie burden this infinitely less than what a directed verdict demands"); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000).

Plaintiff, a woman of African-American descent who was over 40 years of age at the time all of the alleged acts occurred, satisfies the first prong of the framework: she is a member of the classes protected by both statutes. Defendant disputes the latter three.

Plaintiff was clearly qualified to be a special education teacher. She was licensed for that specialty, was a tenured teacher, and had many years of satisfactory employment with Defendant. While Defendant is correct in asserting that supervisors' assessments may be used to show that a plaintiff is unqualified for the position, the negative assessments do not rise to that level in this case. Although they may show that Defendant was displeased with what it considered to be Plaintiffs unprofessional and unsatisfactory conduct, they do not show that she was unqualified for the job.

With all reasonable inferences drawn in favor of Plaintiff, she also succeeds in showing that she was subject to adverse employment action. "Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily." Chertkova, 92 F.3d at 89. A hostile work environment rises to the level of impermissible discrimination if, looking at the totality of the circumstances, it is sufficiently severe or pervasive to alter the conditions and terms of the job and create an abusive working environment.See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-23 (1993). Plaintiff complains of micromanagement and excessive scrutiny of her performance and teaching style. She also alleges that her supervisors' conclusions from their observations were unfounded and hypercritical. As a result, she suffered stress and stress-related health problems. A rational factfinder could conclude that Plaintiffs work environment was so intolerable or hostile as to affect her working terms and conditions or cause her to quit involuntarily. Thus, under either a constructive discharge or a hostile work environment foundation, she satisfies her minimal burden of showing an adverse employment action.

Plaintiff also succeeds on the fourth prong. Circumstances contributing to a permissible inference of discriminatory intent may include those on the following nonexhaustive list: the employer continues to seek applicants after the plaintiffs discharge, the employer criticizes the plaintiffs performance in ethnically degrading terms, the employer makes invidious comments about the plaintiffs protected class, the employer more favorably treats similarly-situated employees who are not members of the plaintiffs protected group, or the sequence or timing of the adverse employment action is suspicious. See. e.g., Chambers v. TRIM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). "The question is whether [the plaintiff] met his de minimis burden of showing circumstances that would permit a rational finder of fact to infer invidious discrimination." Id. at 38.

Plaintiff contends that Principal Izzo's animus towards her could only be motivated by race or age discrimination because the principal had no access to Plaintiffs files and therefore could only differentiate Plaintiff from other teachers by readily observable characteristics, i.e., her race and age. Ms. Izzo did not try to dissuade any other teachers from staying on at P.S. 23 to teach the new P. 771 class. These other teachers were all younger than Plaintiff. In addition, Plaintiffs replacement for the art cluster teacher position for the 1994-95 year was a younger white woman. Furthermore, it is uncontested that Plaintiff was the subject of more criticism and scrutiny than any other teacher. Therefore, Plaintiff has satisfied her burden of making out a prima facie case.

B. Rebuttal and Pretext

Once a plaintiff has established a prima facie case, a rebuttable presumption of unlawful discrimination arises, and the defendant has the burden of producing evidence of a legitimate, nondiscriminatory reason for the employment action. See Hicks, 509 U.S. at 506-07; Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997). "Any stated reason is sufficient; the employer need not persuade the court that the proffered reason was the actual reason for the decision." Tarshis v. Riese Org., 211 F.3d 30, 36 (2d Cir. 2000); see also Hicks, 509 U.S. at 510. The presumption of discrimination then drops out of the picture, and the plaintiff suddenly has a higher burden before her: "in order to defeat summary judgment, [she] must present evidence sufficient to allow a rational factfinder to infer that the employer was actually motivated in whole or in part by [impermissible] discrimination." Grady, 130 F.3d at 560; see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 255 n. 10 (1981).

Defendant Board of Education has offered the reason of substandard performance as the legitimate, nondiscriminatory rationale for its actions. Plaintiff does not dispute that the reason proffered suffices to rebut Plaintiffs prima facie case of discrimination. See Pl. Opp. 12. Consequently, the inference of discrimination established by Plaintiffs prima facie case drops out. Now, Plaintiff must show that Defendant's stated reason is a pretext for unlawful discrimination.

Showing that the employer's proffered reason is merely pretextual may not be sufficient to withstand summary judgment; the evidence on the whole must still "permit a rational factfinder to infer that the discharge was actually motivated, in whole or in part, by discrimination on the basis of a protected class]." Grady, 130 F.3d at 561; Reeves v. Sanderson Plumbing Pdts., Inc., 120 S.Ct. 2097, 2108 (2000) ("[T]he factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff"). This is because "the reasons why an employer may give pretextual reasons to explain an adverse personnel action can be so numerous that the mere fact of a pretextual explanation, without circumstances suggesting that the true motivation was what the plaintiff claims, does little to support plaintiffs case."McCarthy v. New York City Tech. College of City Univ. of New York, 202 F.3d 161, 166 (2d Cir. 2000). In other words, the plaintiff must do more than show the existence of a "crusade" to terminate her. She must show that the crusade was impermissibly motivated. See Hicks, 509 U.S. at 508.

In sum, even through all the McDonnell Douglas evidentiary burden-shifting, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253; Gallo, 22 F.3d at 1224. Thus, to defeat a properly supported motion for summary judgment at this stage, the plaintiff "must show that there is a material issue of fact as to whether (1) the employer's asserted reason for discharge is false or unworthy of belief and (2) more likely than not the [discrimination] was the real reason for the discharge." Woroski v. Nashua Corp., 31 F.3d 105, 108-09 (2d Cir. 1994).

It is in meeting this burden of persuading a rational trier of fact that her treatment was motivated by discrimination that Plaintiff stumbles. In her affidavit, Plaintiff details an abundance of self-serving and unsupported accusations that Principal Izzo's and Assistant Principal Giuliani's treatment of her was in fact motivated by race or age discrimination. She also alleges multiple occasions of unwarranted hostility by Ms. Izzo. Without question, Plaintiff was the subject of scrutiny and observation. Considering all the facts in her favor, she may even persuade a rational trier of fact that she was the subject of a "crusade" against her. What she fails to raise, however, is a factual issue that any such crusade was, more likely than not, motivated by illegal discrimination.

Plaintiff does not point to a single instance of clearly racial or age-related animosity by any of Defendant's agents. None made remarks, gestures, or innuendoes based on race or age. Plaintiff has little to no concrete evidence to support her allegations that Defendant's agents treated African-Americans, persons nearing retirement age, or African-American persons nearing retirement age differently from other similarly-situated persons. The racial demographics of the teacher population at the school does not imply discrimination. All other African-American teachers at the school received satisfactory evaluations. Although Plaintiff was the oldest teacher at the school and thus there is no basis for comparing how the Defendant would treat other persons of Plaintiffs age, Plaintiff cannot find a similarly-situated younger teacher to isolate age as the determining factor. Plaintiffs negative performance evaluations distinguish her from all the other teachers. The overriding inference which results from the facts is that Plaintiff was subjected to an excessively monitored environment not because of her age or race, but because of her inability to perform consistently up to the school's standards. Accord Cruz v. Coach Stores, Inc., 202 F.3d 560, 567-58 n. 3 (2d Cir. 2000). It is logical, proper, and natural to infer that the reason for Defendant's heightened scrutiny of Plaintiffs performance is that Defendant was concerned about its students and Plaintiffs ability to teach them satisfactorily, especially in light of Plaintiffs performance problems and her new position teaching students with different learning disabilities at P. 771. In sum, even when taken in a light most favorable to Plaintiff, it is apparent that no rational trier of fact could infer that Defendant's actions through its agents were motivated by any impermissible factor.

The facts of this case are strikingly similar to Ralkin v. New York City Trans. Auth., 62 F. Supp.2d 989 (E.D.N.Y. 1999),Soleyn v. Board of Educ. of the City of New York, No. 98-Civ.-5348 (AGS), 1999 WL 983872 (S.D.N.Y. Oct. 28, 1999), andCastro v. New York City Bd. of Educ. Personnel Dir., No. 96-CV-6314 (MBM), 1998 WL 108004 (S.D.N.Y. Mar. 12, 1998). InRalkin, an employee brought Title VII and ADEA claims against her employer. The employer offered the legitimate, nondiscriminatory reason that her performance was substandard. In support of its contention, the defendant cited numerous evaluations of the plaintiffs performance rating her unsatisfactory. The plaintiff contended that these negative ratings were false and motivated by discriminatory intent. See Ralkin, 62 F. Supp.2d at 991-93 n. 4. The Court granted summary judgment for the employer because, "other than her own general and unsubstantiated accusations, plaintiff has presented no evidence that would allow a rational finder-of-fact to infer discrimination on the basis of plaintiffs race, religion, or age." Id. at 1001.

Likewise, in Soleyn, the plaintiff teacher sued his employer, the Board of Education, under Title VII for race discrimination. The evidence showed that the plaintiff constantly received negative performance evaluations, yet he asserted that the negative ratings were pretexts for racial animus. See Soleyn, 1999 WL 983872, at *p. 3 The court granted summary judgment for the Board because "plaintiff has failed to produce sufficient evidence to raise a permissible inference that defendants' proffered reason for his firing was a mere pretext for discrimination." Id. at *7. Aside from his conclusory allegations, the court found "no evidence that [the defendant] was motivated by racial considerations in terminating plaintiff."Id. at *8.

Similarly, in Castro, the plaintiff also sued under Title VII and the ADEA. A public school teacher, the plaintiff received a number of unsatisfactory performance ratings by employees of the New York City Board of Education. She contested their accuracy and validity. See Castro, 1998 WL 108004, at * 1-4. The court found held her allegations insufficient as a matter of law to sustain an inference of impermissible discrimination. See id. at *7.

Although these district court cases hold no authority over this Court, their factual similarity and sound reasoning are persuasive. Moreover, they parallel, and therefore support, this Court's own inferences, reasoning, and conclusions.

VI. Executive Law and Administrative Code Claims

Plaintiff has withdrawn her claims under the New York Executive Law and the New York City Administrative Code. See Pl. Opp. 4. Therefore, Defendant's motion to dismiss these claims is denied as moot.

VII. Section 1981 Claim

Section 1981(a) states: "All persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . . ." 42 U.S.C. § 1981(a) (1996). Section 1981(b) defines the scope as including "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Id. § 1981(b).

Section 1981 deals with discrimination only in the making and enforcement of contracts. "Where an alleged act of discrimination does not involve the impairment of one of these specific rights, 1981 provides no relief." Patterson v. McLean Credit Union, 491 U.S. 164, 176 (1989). Moreover, "the right to make contracts does not extend . . . to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions."Patterson v. McLean Credit Union, 491 U.S. 164, 177 (1989). Thus, racial harassment claims are not actionable under § 1981. See Patterson v. McLean Credit Union, 491 U.S. 164, 178 (1989).

Plaintiffs invocation of § 1981 appears to play no more than the minimal role of giving this Court jurisdiction in Plaintiffs Complaint. Plaintiff fails to brief the merits of the issue or state a claim for relief based on § 1981. Further, with the other claims disposed, this claim, to the extent it is advanced by Plaintiff, cannot stand. Plaintiff shows no contractual provision impaired by Defendant's actions. Accordingly, she fails to maintain her burden under § 1981.

VIII. Conclusion

Plaintiff has failed to produce sufficient evidence to withstand Defendant's motion for summary judgment. For the reasons stated above, Defendant's motion is hereby DENIED as moot with respect to the withdrawn state law claims and GRANTED as to all other claims.

SO ORDERED.