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finding evidence of intent to constructively discharge teachers where school principal was "intentionally building a record of unsatisfactory observation reports in order to oust" them
Summary of this case from Clarke v. N.Y.C. Dep't of Educ.Opinion
16-cv-4291 (LAK) 13-cv-8456 (LAK) 16-cv-4844 (LAK) 16-cv-4891 (LAK)
09-18-2018
UNITED STATES of America, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant. John Flanagan, Plaintiff, v. New York City Department of Education, et al., Defendants. Lisa-Erika James, et ano., Plaintiffs, v. New York City Department of Education, et al., Defendants. Anthony Riccardo, Plaintiffs, v. New York City Department of Education, et al., Defendants.
ORDER
This matter is before the Court on the defendants' motion for partial summary judgment. Magistrate Judge Robert W. Lehrburger has rendered a report and recommendation, dated August 7, 2018 (the "R&R"), which recommends that the motion be granted in part and denied in part. Defendants object to so much of the R&R as recommends denial of the motion insofar as it seeks summary judgment dismissing (1) plaintiff Hightower's Title VII, 42 U.S.C. § 1981, and New York State Human Rights Law ("SHRL") claims of constructive discharge; (2) plaintiff James Title VII, 42 U.S.C. § 1981, and SHRL disparate treatment claims; (3) plaintiff Riccardo's retaliation claims under the Fourteenth Amendment, Title VII, the SHRL, and the New York City Human Rights Law; (4) the claim of the United States based on an alleged pattern and practice of retaliation.
The Court has considered the objections as well as the government's response to them with care. It finds no error of fact or of law in the R&R's treatment of the claims placed in issue by defendants' objections.
Accordingly, defendants' motion for partial summary judgment [DI 66, docket no. 16-cv-4291 (LAK) ] is granted to the extent that (1) the retaliation claims of plaintiffs James and Hightower; (2) all aiding and abetting claims; and (3) plaintiff Riccardo's Section 1983 claims against the New York City Department of Education all are dismissed. The motion is denied in all other respects.
SO ORDERED.
REPORT AND RECOMMENDATION
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE
Contents
Procedural History...379
Facts...380
A. Pan American...380
B. Riccardo's Employment at Pan American...381
C. Hightower's Employment at Pan American...386
D. James' Employment at Pan American...387
E. The OEO Investigations...389
Legal Framework...390
A. Summary Judgment Standard...390
B. Admissibility of Evidence...391
Discussion...392 A. Discrimination and Disparate Treatment Claims of Hightower and James...392
1. Hightower's Prima Facie Case of Disparate Treatment...393
2. James' Prima Facie Case of Disparate Treatment...396
B. James' Hostile Work Environment Claims...399
C. NYSHRL and NYCHRL Aiding and Abetting Claims...401
D. Retaliation Claims...402
1. Legal Standard for Retaliation Claims...402
2. Hightower's Retaliation Claims...403
3. James' Retaliation Claims...404
4. Riccardo's Retaliation Claims...405
5. Riccardo's First Amendment Retaliation Claims...410
6. Riccardo's § 1983 Claims...411
E. Enforcement of Riccardo's Stipulated Release...413
F. Pattern or Practice of Discrimination in Violation of Title VII...417
1. Legal Standard...417
2. Government's Proof of Discrimination...418
3. Legitimate Non-Discriminatory Reasons...419
4. Totality of the Evidence...420
Conclusion...421
TO THE HONORABLE LEWIS A. KAPLAN, U.S.D.J.:
Plaintiffs, Anthony Riccardo, Lisa-Erika James, Heather Hightower, John Flanagan, and the United States of America ("United States"), bring these consolidated actions against the New York City Department of Education ("DOE"), Juan Mendez, and Minerva Zanca alleging employment discrimination and retaliation in violation of 42 U.S.C. § 1981 ; 42 U.S.C. § 1983 ; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"); the New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq. ("NYSHRL"); and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq. ("NYCHRL").
Defendants move for summary judgment against (1) James' and Hightower's disparate treatment claims brought pursuant to Title VII, § 1981, and the NYSHRL; (2) James' hostile work environment claims; (3) all of James' and Hightower's retaliation claims; (4) all of Riccardo's claims; (5) all aiding and abetting claims brought pursuant to the NYSHRL and the NYCHRL; and (6) all of the United States' claims except for its Title VII claims that the DOE discriminated against and retaliated against Flanagan. For the reasons that follow, the Court recommends that Defendants' motion be GRANTED in part and DENIED in part.
Procedural History
These related cases each involve allegations that Minerva Zanca, the Principal of Pan American International High School ("Pan American"), discriminated and retaliated against the school's three African-American teachers, Lisa-Erika James, Heather Hightower, and John Flanagan, as well as Assistant Principal Anthony Riccardo.
Hightower filed charges of race discrimination with the United States Equal Opportunity Employment Commission ("EEOC") on August 16, 2013. (Def. 56.1 ¶ 338. ) Riccardo filed charges of retaliation with the EEOC around August 2013. (Pl. 56.1 Responses ¶ 339.) James filed charges of discrimination with the EEOC in August or September 2013. (Pl. 56.1 Responses ¶ 340.)
"Def. 56.1" refers to Defendants' Local Rule 56.1 Statement of Undisputed Material Facts filed at Dkt. 72, United States v. New York City Department of Education , No. 16 Civ. 4291. "Pl. 56.1 Responses" refers to the first section of Plaintiffs' Response and Counter-Statement of Material Facts Under Local Civil Rule 56.1(b), filed at Dkt. 79., pp. 1-124. "Pl. 56.1" refers to the second section of that document, titled "Plaintiffs' Counter-Statement of Material Facts," pp. 125-146. Unless otherwise noted, a stand-alone citation to Def. 56.1 or Pl. 56.1 denotes that the factual allegation is undisputed.
Defendants allege that this charge was filed on September 13, 2013, while Plaintiffs claim it was filed as early as July 23, 2013. (Pl. 56.1 Responses ¶ 339.) This discrepancy is not material to the disposition of the instant motions.
The EEOC found probable cause to believe that the DOE engaged in discriminatory conduct and referred the charges to the United States Department of Justice. On June 9, 2016, the United States filed its lawsuit against the DOE. Riccardo filed his action on June 12, 2016, and Hightower and James filed their action on June 22, 2016. On October 13, 2016, all three cases were consolidated along with a lawsuit filed by Flanagan. (Order dated Oct. 13, 2016, at 2.)
In the Flanagan case, the Defendants' motion for summary judgment was decided in a prior opinion. The motion was denied as to Flanagan's claims under Title VII, the NYHRL, the NYCHRL; denied as to the claims asserted against individual defendants under 42 U.S.C. § 1983 ; and granted as to the negligence, due process, Article 78 claims, and the § 1983 claims brought against the DOE. See Flanagan v. New York City Department of Education , No. 13 Civ. 8456, 2015 WL 11142630, at *17 (S.D.N.Y. Aug. 21, 2015). Accordingly, this Report and Recommendation addresses Defendants' summary judgment motions only with respect to the three other cases.
Unless otherwise noted, all citations to the docket are to the action entitled United States v. New York City Department of Education , No. 16 Civ. 4291.
Facts
A. Pan American
Pan American is part of the DOE's International Network, a network of fourteen schools operating under a specific English-as-a-Second-Language model. (Def. 56.1 ¶ 1.) Ninety-nine percent of the student body at Pan American is composed of non-native English speakers. (Def. 56.1 ¶ 1.) Pan American is also part of the Children's First Network, a support group for twenty-five schools. (Def. 56.1 ¶¶ 1-2.) In 2011, the DOE identified Pan American as a "focus school", meaning it was performing at the bottom fifteen percent of all schools in the state. (Def. 56.1 ¶ 1.)
Principal Zanca was promoted to Principal at Pan American for the 2012-13 school year, and her tenure there lasted through the 2014-15 school year. (Def. 56.1 ¶ 6.) Prior to joining Pan American, Zanca worked as an assistant principal for two years, a guidance counselor and teacher for a combined total of ten tears, and a Spanish language teacher for twelve years. (Def. 56.1 ¶ 13.) Zanca testified that when she was appointed Principal, she was tasked with raising the graduation rate at Pan American. (Deposition of Minerva Zanca dated June 5, 2017 ("Zanca Dep."), attached as Ex. G to Declaration of Danielle M. Dandridge dated Oct. 6, 2017 ("Dandridge Decl."), at 22. )
In submitting deposition testimony, the parties attached only the pages cited by that party. The Court's opinion refers to both sets of papers. To aid in locating referenced deposition testimony, the Court generally will cite to the exhibit number of the deposition excerpt. (Defendants' exhibits are referred to by letters, Plaintiffs' exhibits by numerals).
From 2011 to 2014, Juan Mendez served as the Queens High School Superintendent overseeing eighty-nine schools in Queens County, including Pan American. (Def. 56.1 ¶¶ 20-22.) During the relevant time period, Superintendent Mendez's responsibilities included supervising Principal Zanca and determining whether to grant tenure or discontinue probationary teachers and administrators. (Def. 56.1 ¶¶ 21-22.) Superintendent Mendez testified that he visited Pan American at least five times during the 2012-13 school year. (Deposition of Juan Mendez dated Aug. 3, 2017 ("Mendez Dep."), attached as Ex. I to Dandridge Decl., at 34.)
During the 2012-2013 academic year, probationary teachers, without tenure or prior service, were subject to a three-year probationary period. (Def. 56.1 ¶ 27.) Teachers were evaluated through both informal and formal observations, for which they received either "satisfactory" or "unsatisfactory" ratings from school administrators. (Def. 56.1 ¶¶ 32, 35-36.) At the end of the school year, in accordance with DOE policy, all Pan American teachers received either a "satisfactory" or an "unsatisfactory" annual performance rating, based on those observations, as well as disciplinary letters, goals met, attendance records, and, in certain cases, "logs of support." (Def. 56.1 ¶¶ 39-40.) Assistant principals were subjected to a similar process, including an annual evaluation and a five-year probationary period. (Def. 56.1 ¶¶ 46-47.) Any pedagogue could grieve or appeal any unsatisfactory annual performance rating or discontinuance. (Def. 56.1 ¶ 44.) Principal Zanca had responsibility for recommending whether an assistant principal or teacher received tenure, an extension of probation, or discontinuance. (Def. 56.1 ¶¶ 27, 47-49.) At the end of the 2012-13 school year, there were eight probationary teachers being evaluated by Principal Zanca, of which two—Flanagan and Hightower—were African-American. (Def. 56.1 ¶¶ 131, 136.) Five of these probationary teachers received satisfactory annual ratings, but were not granted tenure; instead, their probationary periods were extended by one year. (Def. 56.1 ¶ 132.) One probationary teacher received tenure. (Def. 56.1 ¶ 133.) Hightower and Flanagan were the only probationary teachers who were either rated "unsatisfactory" for the year or received recommendations for discontinuance, that is, termination of employment. (Def. 56.1 ¶ 135.)
Logs of support provide sources of feedback and professional development and were implemented when there were indications a teacher was struggling. (Def. 56.1 ¶ 38.) Riccardo testified that any teacher or assistant principal who received an "unsatisfactory" rating also received a log of support. (Def. 56.1 ¶ 253.)
B. Riccardo's Employment at Pan American
From 2006 through 2011, Riccardo taught at various schools within the DOE network. (Def. 56.1 ¶¶ 228-31.) In 2011, he was promoted to Assistant Principal of Pan American by Marcella Barros, who held the position of Principal at Pan American from 2010 until 2012. (Def. 56.1 ¶¶ 229-31, 234.) As Assistant Principal, Riccardo's responsibilities included scheduling, programming, payroll, lunch duty, and participating in teacher observations. (Def. 56.1 ¶¶ 233, 235.)
1. Riccardo's Allegations Concerning Principal Zanca
On June 24, 2013, Riccardo wrote a statement recounting Principal Zanca's treatment of the three African-American teachers at Pan American over the course of the 2012-13 school year. (Statement of Anthony Riccardo dated June 24, 2013 ("Riccardo Statement"), attached as Ex. 17 to Declaration of Caleb Hayes-Deats dated Oct. 27, 2017 ("Hayes-Deats Decl.").) His allegations portray an intentional campaign to terminate Flanagan and Hightower through pretextual "unsatisfactory" evaluations as well as lack of support from the school. (Riccardo Statement at 1.)
Additional facts related to Flanagan's claims are set forth in Flanagan , 2015 WL 11142630, at *1-5.
Riccardo also claims that since Principal Zanca could not terminate James due to tenure, Zanca schemed to eliminate James' theater program by reducing its funding. Despite the fact that money was already earmarked for the spring theater performance, Principal Zanca "pulled the funds" and instead purchased smart boards with the allocated funds. (Riccardo Statement at 2.)
Riccardo states that many teachers received unsatisfactory ratings during Zanca's tenure, but alleges that no teachers were "so ruthlessly" targeted as Flanagan and Hightower. (Riccardo Statement at 1.) Riccardo claims that Principal Zanca informed him that four unsatisfactory lessons was the "magic number" to get a teacher removed from the school. (Riccardo Statement at 1.) As early as November, Principal Zanca decided to fire Flanagan and Hightower, and, each time she and Riccardo observed their classroom lessons, she had already predetermined the rating for those lessons. (Riccardo Statement at 1.) Riccardo also asserts that when he was assigned the task of meeting with Hightower to improve her teaching, Principal Zanca warned him, "You better not make her a better teacher." (Riccardo Statement at 1). When Riccardo refused to rate one of Hightower's lessons as unsatisfactory, Principal Zanca was furious and, the following day, conducted an additional review of Hightower's classroom lesson, which she deemed unsatisfactory. (Riccardo Statement at 1-2.) Riccardo claims that after Principal Zanca realized he would "no longer [ ] support her unethical behavior, she began to oust" him in the same manner as Flanagan and Hightower. (Riccardo Statement at 2.) At the end of the school year, Principal Zanca recommended that Hightower, Flanagan, and Riccardo should be terminated. (Def. 56.1 ¶¶ 78, 154, 283.)
In his statement, Riccardo also alleges that Principal Zanca made a series of remarks to him that had a "racial tone" concerning Hightower and Flanagan. (Riccardo Statement at 1.) The first such remark, made after an observation of Hightower's class on December 14, 2012, was that she "looked like a gorilla in a sweater." (Riccardo Statement at 1.) On December 18, 2012, following a meeting with Flanagan, Principal Zanca asked, "[D]id you see his big lips quivering?" (Riccardo Statement at 1.). Riccardo states that at a later date, when they were discussing Flanagan, Principal Zanca said that "she has a hard time not laughing in his face" because every time she sees his face, "it reminds her of a Tropicana commercial where this guy ‘with those same lips’ is dancing down a supermarket aisle." (Riccardo Statement at 2.) According to Riccardo, Principal Zanca also remarked on Hightower's hair, stating, "What is with her fucking nappy hair? I could never have hair like that." (Riccardo Statement at 2.) Principal Zanca denies having made any racist statements regarding any of the Plaintiffs. (Def. 56.1 ¶ 299.)
After hearing Principal Zanca's purported comments, Riccardo began to suspect that Principal Zanca's treatment of the African-American teachers at Pan American was motivated by racial animus. (Riccardo Statement at 1-2.) Riccardo claims that he initially followed Principal Zanca's direction because he feared for his "professional safety," but he eventually decided to oppose her discriminatory treatment. (Riccardo Statement at 1). In June 2013, for the first time, Riccardo informed Flanagan, James, and Hightower of the Principal's derogatory remarks. (Def. 56.1 ¶ 286.)
2. Riccardo's Performance
Riccardo testified that his relationship with Principal Zanca began to "deteriorate" in January 2013 after she learned about certain course programming and transcript errors, which resulted in students' transcripts not accurately reflecting their fulfillment of graduation requirements. (Def. 56.1 ¶ 251.) Soon after, Principal Zanca switched Riccardo to the role of Assistant Principal of Security, which removed his responsibilities over tasks such as programming and payroll, although Plaintiffs argue that even in his new position he continued to observe and evaluate teachers. (Pl. 56.1 Responses ¶ 254.) On April 30, 2013, Principal Zanca held a disciplinary conference with Riccardo and his union representative to discuss the programming and transcript errors. (Def. 56.1 ¶ 257.) On May 2, 2013, Principal Zanca issued two disciplinary letters to Riccardo's file, one concerning the student transcripts and the other concerning course programming. (Def. 56.1 ¶ 258.)
3. The OSI Investigation
In February 2013, Principal Zanca and the Children First Network Deputy Director, Randall Iserman, conducted a review of "per-session" timesheets and, in the course of that review, determined that for a period of time Riccardo had been approving his own per-session timesheets. (Def. 56.1 ¶ 267.) Principal Zanca, either alone or in conjunction with Iserman, filed a complaint with the DOE's Office of Special Investigations ("OSI") alleging that Riccardo (1) approved his own per-session time; (2) gave a disproportionate amount of per-session assignments to James; (3) failed to post the listings for those per-session opportunities; and (4) did not obtain the proper building permits or student sign-in sheets required when students were at the school after regular school hours. (Def. 56.1 ¶ 269; Oct. 25, 2013 Memo from Jared Feirstein ("OSI Memo"), attached as Ex. UUU to Dandridge Deck, at 1.) As part of the investigation into these allegations, OSI investigators interviewed Principal Zanca; Riccardo; James; the Pan American payroll secretary, Flora Rodriguez; and the Pan American safety coordinator, Lissette Burgos. (OSI Memo at 2-3.) The OSI found that the allegations that Riccardo granted James a disproportionate amount of per-session time and failed to obtain the proper permits or sign-in sheets were unsubstantiated, but concluded that Riccardo had committed employee misconduct by signing and approving his own per-session time reports and that he exercised poor judgment by failing to post the per-session job listings. (OSI Memo at 4.)
"Per-session" refers to extra payment to teachers who run after-school or Saturday programs. Teachers must submit applications for these positions. (Def. 56.1 ¶ 192.)
As late as April 2013, however, two months after her complaint to OSI, Principal Zanca was still actively recommending Riccardo for other pedagogical positions. (See Exs. 33-35 attached to Hayes-Deats Decl.) For instance, on April 17, 2013, she wrote to another school administrator that "[Riccardo] is an AP everything, and is responsible for budget, testing, compliance issues, security and also does observations and professional development.... Although, I wouldn't want to lose him, I also do not want to prevent him from reaching his full potential." (Email of Zanca Minerva dated April 17, 2013, attached as part of Ex. 35 to Hayes-Deats Decl.)
4. Riccardo's Medical Absences
Riccardo took a medical leave of absence from Pan American for the majority of May through the first week of June 2013. (Letter to File dated June 18, 2013 ("Disciplinary Letter for Absenteeism"), attached as part of Ex. 37 to Hayes-Deats Decl., at USA002487; Memorandum of Flora Rodriguez dated June 17, 2013, attached as Ex. EEEE to Dandridge Decl., at 1-2.) His doctor recommended that he take this extended leave of absence for health reasons. (New York State Prescription, attached as Ex. 39 to Hayes-Deats Decl.) The DOE's medical examiner found that these absences were medically justified. (Employee Medical Review dated June 12, 2013, attached as part of Ex. 37 to Hayes-Deats Decl., at USA002489.)
5. The June 6, 2013 Incident
On April 18, 2013, Riccardo observed Hightower's lesson. Riccardo did not sign the formal observation report rating the lesson "satisfactory" until he returned from his medical absence on June 6, 2013. (April 18 Formal Observation Report, attached as Ex. XX to Dandridge Decl.) That same day, Principal Zanca and Riccardo had an altercation that concluded with Riccardo being escorted from campus.
The parties offer conflicting versions of this encounter. Principal Zanca reported that she asked Riccardo why he had rated Hightower's lesson "satisfactory" when he had previously informed her that the lesson "sucked, as usual." (Letter to File dated June 18, 2013 ("Insubordination Disciplinary Letter"), attached as part of Ex. 37 to Hayes-Deats Decl., at USA002484-85; Zanca Dep., Ex. G at 74-75.) Riccardo raised his voice and asked, "Do you want it to be unsatisfactory?" (Insubordination Disciplinary Letter at USA002484.) When Principal Zanca told Riccardo to stop texting and to get back to work, he yelled, "[G]o to your office and leave me alone." (Insubordination Disciplinary Letter at USA002484.) Principal Zanca told him that his conduct was unprofessional and amounted to insubordination; Riccardo responded stating, "[I]t's by example set by you." (Insubordination Disciplinary Letter at USA002484.) Feeling threatened, Principal Zanca called security, and, after security arrived, Riccardo left the school premises. (Insubordination Disciplinary Letter at USA002485.)
According to Riccardo's recitation of the incident, Principal Zanca confronted him about whether he would give Hightower an "unsatisfactory" rating, and when he refused, she accused him of "sabotaging her plan." (Pl. 56.1 Responses ¶ 277.) Zanca instructed Riccardo to get off his phone, and he asked her to leave his office. (Deposition of Anthony Riccardo dated May 3, 2017 ("Riccardo Dep."), attached as Ex. 30 to Hayes-Deats Decl., at 177.) Riccardo testified that Principal Zanca said she felt threatened so he left the building. (Riccardo Dep., Ex. 30 at 177.) That same day, she also appears to have created a log of support for Riccardo. (Anthony Riccardo Log of Assistance 2012/2013 ("Riccardo Log"), attached as Ex. BBBB to Dandridge Decl.) In an email written a few days later, Principal Zanca characterized Riccardo's "satisfactory" rating of Hightower's lesson as "an attempt to sabotage the work [she had] done on this matter." (Email of Minerva Zanca dated June 10, 2013, attached as part of Ex. 40 to Hayes-Deats Decl.)
In connection with this incident, Principal Zanca held a disciplinary conference on June 18, 2013, and issued a disciplinary letter for insubordination to Riccardo's file. (Insubordination Disciplinary Letter at USA002484-85.) That same day, Zanca also issued a disciplinary letter for his excessive absences. (Disciplinary Letter for Absenteeism at USA002487-88.)
6. Recommendation For Discontinuance and Stipulation of Settlement
At the close of the 2012-13 school year, Principal Zanca rated Riccardo's annual performance as "unsatisfactory" and recommended discontinuance of his probationary employment. She signed the evaluation on June 25, 2013, and checked a box recommending discontinuance. (Pedagogical Supervisory Personnel Report dated June 26, 2018 ("Personnel Report"), attached as Ex. HHHH to Dandridge Decl.) Superintendent Mendez signed it on June 26, 2013, but did not check the same box recommending discontinuance. (Personnel Report.) On June 27, 2013, Superintendent Mendez wrote Riccardo that Mendez would consider whether to discontinue Riccardo's probationary service by July 29, 2013 and invited Riccardo to submit a written response. (Def. 56.1 ¶ 300.) In a July 3 email, however, Superintendent Mendez informed other DOE administrators that "the discontinuance was approved by me." (Email of Juan Mendez dated July 3, 2013, attached as part of Ex. 53 to Hayes-Deats Decl.)
Also late in June, Riccardo contacted Bob Reich and Mercedes Quails from his union and discussed the possibility of signing a stipulation to resign. (Def. 56.1 ¶ 302.) He received a draft stipulation from Reich containing largely the same terms as the stipulation that he would ultimately sign and execute. (Def. 56.1 ¶ 302.) On July 26, 2013, Riccardo submitted a letter to Superintendent Mendez contesting his termination and alleging that the evidence submitted by Principal Zanca was "embellished and inaccurate" and that she had "been nothing short of an unethical tyrant in her short time a[t] the school. This has been brought to the attention of both the network and yourself to no avail." (Def. 56.1 ¶ 303; Letter of Anthony Riccardo dated July 26, 2013 ("7/26/13 Riccardo Letter"), attached as Ex. LLLL to Dandridge Decl.) Riccardo also noted in the letter that he had attempted to contact the Superintendent several times but had not received a response, and Riccardo further wrote that if he did not hear from Mendez soon, he would "consider all of [his] legal options." (Def. 56.1 ¶ 293; 7/26/13 Riccardo Letter.) In August, Riccardo and Superintendent Mendez met regarding his discontinuance. (Def. 56.1 ¶ 304.) Mendez testified that they discussed Riccardo's allegations against Principal Zanca, Riccardo's delay in reporting her discriminatory comments, and the possibility of a stipulation to achieve a satisfactory rating. (Mendez Dep., Ex. I at 269-73.)
In an email dated August 16, 2013, Riccardo described the essential terms of the stipulation to Superintendent Mendez. (Email of Anthony Riccardo dated Aug. 21, 2013, attached as part of Ex. MMMM to Dandridge Decl.) The stipulation provided that Principal Zanca would issue Riccardo a "satisfactory" rating for his performance during the 2012-13 school year and in exchange, Riccardo would agree to irrevocably resign from the DOE effective August 25, 2013. (Stipulation, attached as Ex. NNNN to Dandridge Decl. ¶ 1.) The stipulation also stated that Riccardo "waives all claims against the Chancellor, the Principal, the Department of Education or any of its agents or employees in any administrative, judicial or other form arising out of the unique and particular facts of this matter." (Stipulation ¶ 6.) Riccardo signed the stipulation on August 28, 2013. It was eventually signed by Superintendent Mendez, Principal Zanca, and Reich in October 2013.
7. Media Coverage and Public Awareness of Riccardo's Allegations
Beginning in late June 2013, media outlets began to cover Riccardo's allegations concerning Principal Zanca's alleged remarks and her treatment of the African-American teachers at Pan American. (See Clarke Gail Baines, Black Teachers Fired By NYC Principal Who Said They Had "Big Lips" And Looked Like "A Gorilla In A Sweater With Nappy Hair," Madame Noire (June 28, 2013), attached as part of Ex. U to Affirmation of Noah A. Kinigstein dated June 30, 2015 ("Kinigstein Aff."). ) On July 8, 2013, a public rally took place in response to the allegations. (See Angy Altamirano, Three file racial discrimination claim against Elmhurst principal , Queens Courier (July 16, 2013), attached as part of Ex. U to Kinigstein Aff.). Between July 3 and July 8, 2013, Superintendent Mendez and other DOE personnel exchanged emails regarding the accusations and the upcoming rally. (Emails attached as Ex. 53 to Hayes-Deats Decl.)
This affidavit was filed only in Flanagan v. New York City Department of Education , No. 13 Civ. 8456.
8. SCI Investigation
On or about July 26, 2013, Principal Zanca reported to the Office of the Special Commissioner of Investigation ("SCI") that Riccardo had brought marijuana to Pan American to give to the school's Payroll Secretary, Flora Rodriguez, who was a cancer survivor. (Excerpts from the Special Commissioner of Investigation ("SCI Investigation Report"), attached as Ex. 47 to Hayes-Deats Deck, at SDNY_01029.) During her interview with the SCI investigator, Principal Zanca also alleged that Riccardo was a recovering drug addict and a former member of the Hell's Angel gang. (SCI Investigation Report at SDNY_01047; Zanca Dep., attached as Ex. 9 to Hayes-Deats Decl., at 285-88.) Over the course of SCI's investigation, two Pan American employees confirmed that they had heard Riccardo offer to obtain marijuana for Rodriguez. (SCI Investigation Report at SDNY_01029-31.) Riccardo, however, denied the allegation, and it ultimately was found to be unsubstantiated. (SCI Investigation Report at SDNY_01029.)
During her deposition, Zanca stated that she had informed the Director of Children First Network, Cyndi Kerr, Mendez, and "probably" Iserman about Riccardo's alleged former gang membership. (Zanca Dep., Ex. 9 at 285-88.) Kerr, Mendez, and Iserman, however, all denied that she had done so. (See Deposition of Cyndi Kerr dated July 27, 2017, attached as Ex. 49 to Hayes-Deats Decl., at 109; Mendez Dep., Ex. 16 at 141-42; Deposition of Randall Iserman dated Aug. 8, 2017, attached as Ex. 45 to Hayes-Deats Decl., at 161.)
C. Hightower's Employment at Pan American
Hightower worked at Pan American as a science teacher from 2010 through the end of the 2012-13 school year. (Def. 56.1 ¶¶ 115, 122.) Her probationary status was scheduled to be up for review at the end of the 2012-2013 academic year. (Def. 56.1 ¶ 119.) She received "satisfactory" ratings for her performance prior to Principal Zanca's arrival. (Annual Professional Performance Reviews, attached as Ex. 4 to Hayes-Deats Decl.)
As described above, Principal Zanca and Riccardo conducted joint formal observation reports of Hightower's classroom lessons on November 13, 2012, and December 10, 2012, both of which were rated "unsatisfactory." (Def. 56.1 ¶¶ 132, 135.) In conjunction with each observation, Hightower received written feedback from the administrators on the lesson, including recommendations for improvement.
Following these evaluations, Principal Zanca asked Hightower to work with a coach to assist her with subject matter and requested that Riccardo meet with Hightower regularly to review her curriculum planning and content. (Def. 56.1 ¶¶ 128-29.) Riccardo stated, however, that Principal Zanca privately warned him that he "better not make [Hightower] a better teacher." (Riccardo Statement at 1.) As a result of feeling anxious and isolated at work, Hightower started exploring alternative career options. (Deposition of Heather Hightower dated May 10, 2017 ("Hightower Dep."), attached as Ex. B to Dandridge Decl., at 49.) In April 2013, she submitted a deposit to attend nursing school the following year. (Hightower Dep., Ex. B at 46-47.) At some point during the Spring semester, Hightower met with Principal Zanca, Riccardo, and her union representative, Peter Lamphere, to discuss her performance; they informed her that she would not be receiving tenure. (Hightower Dep., Ex. B at 159-60.)
On April 18, 2013, Riccardo observed Hightower's lesson and on June 6, 2013 – more than six weeks later – he signed a formal observation report rating the lesson "satisfactory." (April 18 Formal Observation Report.) Defendants allege that Principal Zanca was suspicious of the validity of this "satisfactory" rating as Riccardo had verbally conveyed to her in April that the lesson had been unsatisfactory, while Plaintiffs argue that this rating was consistent with the post-observation conference Riccardo held with Hightower on April 26, 2013. (Compare Zanca Dep., Ex. G at 73-74, with Pl. 56.1 ¶ 385.) The following day, on June 7, 2013, Principal Zanca observed Hightower's lesson and signed an informal observation report rating the lesson "unsatisfactory." (Informal Observation Report, attached as Ex. WW to Dandridge Decl.) Plaintiffs argue that this observation was undertaken for the sole purpose of assigning Hightower her fourth "unsatisfactory" rating, as Principal Zanca had previously told Riccardo that "the magic number" for firing a teacher was four "unsatisfactory" ratings. (Pl. 56.1 ¶ 367.)
On June 13, 2013, Hightower received an "unsatisfactory" rating for her annual performance, and Principal Zanca recommended that her probationary service be discontinued. (Def. 56.1 ¶ 154.) Superintendent Mendez initially agreed with Zanca's recommendation, but on June 14, 2013, he sent a letter to Hightower indicating that he would determine whether her probationary status would be discontinued by July 17, 2013. (Def. 56.1 ¶¶ 156, 397.) On August 21, 2013, weeks after his self-imposed July deadline, the Superintendent determined that Hightower's services should not be discontinued because she was teaching a subject matter outside of her licensed subject area, which was English as a Second Language. (Letter of Juan Mendez dated August 21, 2013, attached as Ex. AAA to Dandridge Deck; Mendez Dep., Ex. I at 241-42.) Plaintiffs claim that this change was only made because Hightower filed complaints with the DOE's Office of Equal Opportunity ("OEO") and the EEOC on June 24, 2013, and August 16, 2013, respectively. (See Pl. 56.1 Responses ¶¶ 329, 338.) The parties dispute the precise date when Hightower's discontinuance was actually reversed. (Pl. 56.1 Responses ¶¶ 158-59.)
D. James' Employment at Pan American
In 2011, James was hired as a tenured teacher to develop the Pan American theater program and provide a creative outlet for English language learners. (Def. 56.1 ¶¶ 167-68; Pl. 56.1 Responses ¶ 168; Deposition of Marcella Barros dated May 31, 2017, attached as Ex. 5 to Hayes-Deats Decl., at 69-72.) During James' time at Pan American, the theater program was highlighted in the local and national press and featured in a PBS documentary. (Deposition of Lisa-Erika James dated May 19, 2017 ("James Dep."), attached as Ex. 24 to Hayes-Deats Decl., at 50-51.) Principal Zanca gave James a "satisfactory" annual performance rating for the 2012-13 school year. (Def. 56.1 ¶ 177.) Over the course of the school year, James also received "satisfactory" classroom ratings from observations conducted by Principal Zanca and Riccardo jointly on November 8, 2012, and from Riccardo individually on April 15, 2013. (Def. 56.1 ¶¶ 170, 172, 174.)
Plaintiffs contend that Principal Zanca engaged in a calculated effort to sabotage the theater program, while Defendants claim her actions were motivated by a concern over the excessive costs associated with James' theater program. (Def. 56.1 ¶ 184-85; Pl. 56.1 Responses ¶ 193; Zanca Dep., Ex. 9 at 54-56.)
James testified that Principal Zanca generally expressed "[e]ffusive warmth" and was "very congenial [and] engaged" with members of the staff who were not African American, but that James was treated antagonistically and dismissively. (James Dep., Ex. 24 at 26-29, 40, 53, 143-44.) For instance, James testified that on multiple occasions Principal Zanca said "[o]kay, okay, okay" when James attempted to discuss the theater program, which James interpreted as disinterest in her work. (Def. 56.1 ¶¶ 180, 182.) James also testified that Principal Zanca berated her for taking a pre-approved day off. (Pl. 56.1 Responses ¶ 204.) As a result of the work environment at Pan American, James suffered from depression and anxiety and sought psychiatric treatment. (Treatment Notes, attached as part of Ex. 117 to Hayes-Deats Decl.)
Plaintiffs also allege that Principal Zanca tried to sabotage the first theater production of the school year. James testified that on the day of the February 2013 Winter theater production, Pan American's school secretary, Vivian Fonseca, informed James that the school would not pay for the production's sound, lighting, and photography vendors. (Def. 56.1 ¶ 184.) Fonseca testified that Principal Zanca instructed her to inform James that they could not pay these consultants. (Deposition of Vivian Fonseca dated Sept. 12, 2017 ("Fonseca Dep."), attached as Ex. 26 to Hayes-Deats Deck, at 44-45.) James claims that the performance only went forward because she agreed to pay the consultants out of her own pocket, although the school did ultimately pay the costs. (Def. 56.1 ¶ 187; James Dep., Ex. 24 at 56.)
In March 2013, Principal Zanca sent a memo to James, stating that the theater program would have to serve students outside of James' class, that the budget would have to be approved by the administration, and that the number of rehearsal hours would be reduced. (Def. 56.1 ¶ 193.) Around this time, Principal Zanca informed Iserman that she had not approved the spring theater program because of the investigation into James' "excessive" per session time. (Email of Minerva Zanca dated March 15, 2013, attached as part of Ex. QQQ to Dandridge Decl.) On April 3, 2012, Principal Zanca, Riccardo, and James met to discuss the future of the Pan American theater program. (Def. 56.1 ¶ 194.) James expressed concern that it would be very difficult, if not impossible, for children who were still learning English to memorize their lines and their blockings with such limited rehearsal preparation. (James Dep., Ex. 24 at 170-71.) In an April 8, 2013 memorandum, Principal Zanca summarized the events of the meeting, noting that the theater program could continue, but that due to budgetary constraints, the rehearsal time for the theater program would be reduced from an average of twelve to eighteen hours per week to four hours per week, and that future performances would take place in the school's multi-purpose room rather than the theater. (Letter of Minerva Zanca dated April 8, 2013 ("4/8/13 Zanca Letter"), attached as Ex. OOO to Dandridge Decl.) Principal Zanca's memorandum also reflected that she and James discussed the possibility of having students take charge of lighting, sound, and photography but that James felt those tasks were too dangerous and complex. (4/8/13 Zanca Letter.) James suggested that private donors could cover the program's budget shortfall, but Principal Zanca ultimately determined that those funds could not be used to cover the costs of per-session rehearsal time. (4/8/13 Zanca Letter.) As a result of the cuts to the rehearsal time, James did not put on a Spring semester performance. (James Dep., Ex. 24 at 140-42.) The reduction in the number of rehearsal hours saved Pan American the cost of the associated per-session teaching hours and extra pay. For instance, during the 2011-12 school year, James was paid for approximately 400 per-session hours. (Def. 56.1 ¶ 200.)
James also testified that during the April 3, 2013 meeting, she informed Principal Zanca that she had heard from a parent that Zanca had disparaged James for spending too much money on the theater production. (James Dep., Ex. 24 at 107-08.) When confronted with this, Principal Zanca told James that "[i]t looks like that parent needs to be removed from the SLT committee." (James Dep., Ex. 24 at 106-08.)
On June 26, 2013, James was interviewed by an investigator from the OSI in connection with their investigation into possible misconduct by Riccardo. (Def. 56.1 ¶ 209.) The parties dispute whether Riccardo was the sole target of the OSI's investigation or whether James was also a target. (Pl. 56.1 Responses ¶ 209.)
In June 2013, for the first time, James learned of Principal Zanca's alleged racist remarks. (Def. 56.1 ¶ 286.) In the Fall of the 2013-14 school year, James transferred to the Manhattan Teacher Lab High School ("MTLHS") as a theater teacher. (Def. 56.1 ¶ 213.) James testified that she transferred due to the tense atmosphere at Pan American and out of fear of working with Principal Zanca. (James Dep., Ex. 24 at 123, 139-43.) James worked at MTLHS until the school closed in June 2015, at which point she transferred to Cascade High School, where she worked for a month before going out on medical leave. (Def. 56.1 ¶ 215.) James is still currently employed with the DOE. (James Dep., attached as Ex. C to Dandridge Decl., at 16-17.)
E. The OEO Investigations
Formal administrative investigations of discrimination by DOE employees are conducted by the OEO and the OSI. (Def. 56.1 ¶ 327.) Flanagan filed a complaint with the OEO on June 3, 2013, and James and Hightower filed complaints on June 24, 2013. (Def. 56.1 ¶¶ 328-30.)
On July 3, 2013, Superintendent Mendez forwarded press coverage related to Riccardo's allegations to other DOE employees and stated that the "allegations are unfounded. AP Riccardo is attempting to retaliate for receiving an unsatisfactory rating and discontinuance ... The principal deserves our support." (Email of Juan Mendez dated July 3, 2013, attached as part of Ex. 53 to Hayes-Deats Decl.) Five days later, Superintendent Mendez forwarded the same information to Mecca Santana, the executive Director of the OEO, and stated, "[T]hese allegations are manufactured and untrue. Principal Zanca is being characterized as a racist which she is not." (Email of Juan Mendez dated July 8, 2013, attached as part of Ex. 53 to Hayes-Deats Decl.) Santana responded and stated that he would "pass this information on to the assigned investigator." (Email of Mecca Santana dated July 8, 2013, attached as part of Ex. 53 to Hayes-Deats Decl.)
On July 9, 2013, after learning that Plaintiffs were considering filing external complaints, Flanagan, Hightower, and James were advised that an external filing would result in the administrative closure of their OEO reports, per DOE policy. (Def. 56.1 ¶ 331; Deposition of Theresa Wade dated June 1, 2017 ("Wade Dep."), attached as Ex. 55 to Hayes-Deats Decl., at 51-52.) Plaintiffs were informed that if they did not advise the OEO by July 26, 2013, whether they intended to proceed with the OEO investigation, their OEO cases would be administratively closed. (Memorandum of Theresa B. Wade dated Aug. 13, 2013 ("OEO Investigation Memo"), attached as Ex. VVVV to Dandridge Decl., at USA0487-88.) On July 22, 2013, James and Flanagan each separately informed the OEO that they intended to file a complaint with an external agency. (OEO Investigation Memo at USA0487-88.) Hightower failed to respond to the OEO's inquiries regarding the status of her complaint. (OEO Investigation Memo at USA0488.)
On July 23, 2013, the OEO interviewed Riccardo as a witness to the complaints of discrimination, and that same day the OEO initiated a complaint on Riccardo's behalf. (Def. 56.1 ¶¶ 332-33.) On August 13, 2013, the OEO administratively closed its investigation into the discrimination complaints filed by Flanagan, Hightower, and James. (Def. 56.1 ¶ 334.)
Legal Framework
A. Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, a court will "grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; accord Celotex Corp v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of identifying "the absence of a genuine issue of material fact." Celotex , 477 U.S. at 323, 106 S.Ct. 2548. The opposing party must then come forward with specific materials establishing the existence of a genuine dispute. Id. Where the nonmoving party fails to make "a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment must be granted. Id. at 322, 106 S.Ct. 2548.
In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Smith v. Barnesandnoble.com, LLC , 839 F.3d 163, 166 (2d Cir. 2016). However, the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," and summary judgment may be granted where the nonmovant's evidence is conclusory, speculative, or not significantly probative. Anderson , 477 U.S. at 249-50, 106 S.Ct. 2505. Courts should be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question," because "direct evidence of an employer's discriminatory intent will rarely be found." Schwapp v. Town of Avon , 118 F.3d 106, 110 (2d Cir. 1997).
B. Admissibility of Evidence
Defendants argue that Plaintiffs improperly rely on hearsay statements to defeat their summary judgment motion. Specifically, Defendants argue that portions of the following exhibits, each of were attached to the Hayes-Deats Declaration, should be disregarded by the Court: 13, 14, 17, 23, 29, 46, 47, 48, 50, 51, 52, 56, 76, 77, 78, 79, and 117. (Defendants' Reply Memorandum of Law in Response to Plaintiff USA's Opposition and in Further Support of Their Omnibus Motion for Partial Summary Judgment ("Def. Reply USA Mem.") at 1-2. ) Defendants do not identify the portions of these exhibits to which they object.
See also Defendants' Reply Memorandum of Law in Response to Plaintiff Riccardo's Opposition and in Further Support of Their Omnibus Motion for Partial Summary Judgment at 1; Defendants' Reply Memorandum of Law in Response to Plaintiffs James' and Hightower's Opposition and in Further Support of Their Omnibus Motion for Partial Summary Judgment ("Def. Reply James & Hightower Mem.") at 1. Defendants also argue that the United States' Exhibit 80 should be disregarded as it seeks to introduce in the record prior settlement negotiations, which is improper under FRCP Rule 408. (Def. Reply USA Mem. at 2.) The Court has not relied upon Exhibit 80 in making its determination and therefore will not address Defendants' argument.
Hearsay is a statement that "(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Fed. R. Evid. 801(c). To raise an issue of fact, evidence submitted in connection with a summary judgment motion must be admissible or contain evidence that will be presented in a form admissible at trial. Santos v. Murdock , 243 F.3d 681, 683 (2d Cir. 2001). "[A] court will not entertain inadmissible hearsay unsubstantiated by any other evidence in ruling on a summary judgment motion." Mattera v. JPMorgan Chase Corp. , 740 F. Supp. 2d 561, 566 n.2 (S.D.N.Y. 2010) (citing H. Sand & Co. v. Airtemp Corp. , 934 F.2d 450, 454-55 (2d Cir. 1991) ). However, "material relied on at summary judgment need not be admissible in the form presented to the district court. Rather, so long as the evidence in question will be presented in admissible form at trial, it may be considered at summary judgment." Smith v. City of New York , 697 F. App'x 88, 89 (2d Cir. 2017) (internal quotation marks omitted) (quoting Santos , 243 F.3d at 683 ).
Of the exhibits identified by Defendants, the Court has relied on facts drawn from only the following exhibits: Ex. 17 (Riccardo Statement), Ex. 29 (Deposition of Lourdes Gonzalez dated May 18, 2017), Ex. 47 (SCI Investigation Report), Ex. 48 (Memorandum of Theresa Wade dated Feb. 10, 2014 ("OEO Mem."), and Ex. 117 (Treatment Notes). Accordingly, the remaining exhibits need not be addressed.
The portions cited to and relied upon in this opinion are properly relied upon because the relevant factual contents of those exhibits may be testified to at trial by Riccardo, Gonzalez, Zanca, and James. See Smith , 697 F. App'x at 89 (documents containing hearsay evidence could be relied upon because they could be "reduced to admissible form at trial through [ ] testimony"). Accordingly, at this time, the Court need not resolve whether any of the documents in question fall within any of the potentially applicable hearsay exceptions. Discussion
A. Discrimination and Disparate Treatment Claims of Hightower and James
Hightower and James allege that they were discriminated against on the basis of their race in violation of Title VII; 42 U.S.C. § 1981 ; the NYSHRL, N.Y. Exec. Law § 290, et seq. ; and the NYCHRL, N.Y.C. Admin. Code § 8-80.7. Defendants argue that the following claims should be dismissed: James and Hightower's Title VII claims against the DOE, their § 1981 and NYSHRL claims against Principal Zanca, and their § 1981 claims against Superintendent Mendez. The existence of disputed material facts warrants denial of Defendants' motion as to these claims.
Defendants have not moved for summary judgment on Plaintiffs' NYCHRL claims against Principal Zanca.
In cases where there is no evidence of direct discrimination, claims of disparate treatment in violation of federal and state laws are analyzed in accordance with the three-part framework established by the Supreme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Dawson v. Bumble & Bumble , 398 F.3d 211, 216-17 (2d Cir. 2005), overruled on other grounds by Zarda v. Altitude Express, Inc. , 883 F.3d 100 (2d Cir. 2018) (en banc) (overruling Dawson in part and holding that sexual orientation discrimination is a subset of sex discrimination for purposes of Title VII). Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas , 411 U.S. at 802, 93 S.Ct. 1817 ; Woodman v. WWOR-TV, Inc. , 411 F.3d 69, 76 (2d Cir. 2005). To establish a prima facie case of discrimination, a plaintiff must show that "(1) [she] is a member of a protected class; (2) [she] is competent to perform the job or is performing [her] duties satisfactorily; (3) [she] suffered an adverse employment decision or action; and (4) the decision or action occurred under circumstances giving rise to an inference of discrimination based on [her] membership in the protected class." McAllister v. Quik Park , 661 F. App'x. 61, 63 (2d Cir. 2016) (quoting Dawson , 398 F.3d at 216 ). The Second Circuit has characterized plaintiff's prima facie burden as "minimal" and "de minimis." Woodman v. WWOR-TV, Inc. , 411 F.3d 69, 76 (2d Cir. 2005) (quoting Zimmermann v. Associates First Capital Corp. , 251 F.3d 376, 381 (2d Cir. 2001) ).
Once the plaintiff has established a prima facie case, the burden shifts to the defendant to produce evidence "that the adverse employment actions were taken ‘for a legitimate, nondiscriminatory reason.’ " St. Mary's Honor Center v. Hicks , 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (quoting Texas Department of Community Affairs v. Burdine , 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ). If the defendant articulates a non-discriminatory rationale for its employment decision, the burden shifts back to the plaintiff to show that the defendant's proffered explanation is a pretext for unlawful discrimination by a preponderance of the evidence. Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ; St. Mary's Honor Center , 509 U.S. at 508, 113 S.Ct. 2742. Discrimination claims under the NYSHRL are analyzed under the same framework. See Hicks v. Baines , 593 F.3d 159, 164 (2d Cir. 2010).
Defendants do not deny, for purposes of summary judgment, that Hightower and James are members of a protected class or that they satisfactorily performed their job duties and they do not offer a non-discriminatory explanation for their actions. (Defendants' Memorandum of Law in Support of Their Omnibus Motion for Partial Summary Judgment ("Def. Mem.") at 20-33.) Instead, Defendants argue solely that the Plaintiffs are unable to satisfy the third requirement of a prima facie case, that is, that they suffered an adverse employment action.
A plaintiff sustains an adverse employment action if she endures a "materially adverse change" in the terms or conditions of employment. Galabya v. New York City Board of Education , 202 F.3d 636, 640 (2d Cir. 2000). "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation." Id. (alteration in original) (quoting Crady v. Liberty National Bank and Trust Co. of Indiana , 993 F.2d 132, 136 (7th Cir. 1993) ). An adverse employment action is measured by the same standard under Title VII and the NYSHRL. See United States v. New York City Department of Education (DOE I ), No. 16 Civ. 4291, 2017 WL 435940, at *8 (S.D.N.Y. Jan. 31, 2017), report and recommendation adopted , 2017 WL 1319695 (S.D.N.Y. April 4, 2017).
1. Hightower's Prima Facie Case of Disparate Treatment
As noted above, the only element of Hightower's prima facie case disputed by Defendants is whether she suffered an adverse employment action. Plaintiffs contend that the DOE's decision to discontinue Hightower's employment constituted an adverse employment action, even though that discontinuance was later reversed. (Memorandum of Law in Opposition to Defendants' Omnibus Motion for Partial Summary Judgment ("Pl. USA Mem.") at 44-45; Plaintiffs' Memorandum of Law in Opposition to Defendants' Omnibus Motion for Partial Summary Judgment ("Pl. James & Hightower Mem.") at 14-15.) In the alternative, Hightower argues that she experienced an adverse employment action when she was constructively discharged from her position at Pan American. (Pl. James & Hightower Mem. at 15.) The Court finds that Hightower has put forth sufficient evidence of both arguments to survive summary judgment.
The James and Hightower brief was filed in the action entitled James v. New York City Department of Education , 16 Civ. 4844.
a. Hightower's Discontinuance and Subsequent Notifications
Plaintiffs argue that the DOE's discontinuance of Hightower and belated reversal constitute a notice of termination, qualifying as an adverse employment action. Defendants argue there was no adverse employment action because Hightower was only recommended for discontinuance and the decision was ultimately reversed. This is a material issue of dispositive fact precluding summary judgment.
First, the circumstances surrounding Hightower's purported "discontinuance" and reversal of that action could be reasonably interpreted to give rise to actionable conduct. In Hightower's annual performance review on June 13, 2013, Principal Zanca rated her as unsatisfactory and recommended that her service be discontinued. (Annual Professional Performance Review and Report on Probationary Service of Pedagogical Employee ("Hightower Review"), attached as Ex. YY to Dandridge Deck, at 2) In that same performance review, Superintendent Mendez also recommended discontinuance of Hightower's probationary service. (Hightower Review at 2.) The following day, Superintendent Mendez wrote to Hightower and informed her that on July 17, 2013, he would determine whether her services would be discontinued. (Letter of Juan Mendez dated June 14, 2013, attached as Ex. 62 to Hayes-Deats Decl.) Mendez's letter was returned unopened and marked "return to sender." (Email of Minerva Zanca dated July 23, 2013, attached as part of Ex. 71 to Hayes-Deats Decl.) On August 21, 2013, shortly before the new school year commenced and more than a month after the indicated deadline, Superintendent Mendez wrote to Hightower that after reviewing her record he had "determined that [her] services should not be Discontinued." (Letter of Juan Mendez dated Aug. 21, 2013, attached as Ex. AAA to Dandridge Decl.) Despite the fact that his June correspondence to Hightower had been returned unopened, Plaintiffs' point out that Mendez sent his August notice to the same address. (Pl. 56.1 ¶ 402.) Plaintiffs thus argue that Hightower never received the notice. (Pl. 56.1 ¶ 402.)
While the address in the first letter is redacted, Plaintiffs' contend in their 56.1 statement that the addresses are the same, and Defendants' do not dispute that contention.
The DOE human resources director testified that discontinuances were typically entered by the end of the school year, approximately around June 30. (Deposition of Tene Williams dated Aug. 9, 2017 ("Williams Dep."), attached as Ex. 102 to Hayes-Deats Decl., at 153-54.) Meanwhile, it was not until October 30, 2013, well after the school year began, that Principal Zanca informed human resources that Hightower's rating "will be" reversed from "unsatisfactory" to "satisfactory" and that "her discontinuance will be reversed." (Email of Minerva Zanca dated Oct. 30, 2013, attached as Ex. BBB to Dandridge Decl.) This language suggests that Hightower in fact had been discontinued, and Defendants are unable to point to any evidence in the record indicating that the reversal was actually effected before October. A DOE administrator testified that Hightower's status within the DOE's system, at the time he changed her rating for the year, was marked as "DPD," indicating probationary discontinuance. (Williams Dep. at 154-56.) Hightower appealed her discontinuance, but never followed up with the DOE to see if her rating was changed. (Def. 56.1 ¶ 159; Hightower Dep. at 165.)
A juror could reasonably interpret from these facts that Hightower was either discontinued or that Defendants' actions constituted a notice of termination. The parties do not dispute that a discontinuance would qualify as an adverse action. The issuance of a notice of termination may also "constitute[ ] an adverse employment action." Shultz v. Congregation Shearith Israel of City of New York , 867 F.3d 298, 305 (2d Cir. 2017). Rescission of a termination does not negate the claim for relief, although it can impact the calculation of damages. Id. at 306-07. While the Second Circuit has noted that "in some circumstances the period of time between a notice of firing and its rescission may be so short as to render the termination de minimis," that is not the case here. Id. at 306. The period of time between July and October was more than sufficient for Hightower to experience the "bad feelings and anxiety" associated with termination of employment. Id. at 307. And, as noted above, the school year had already started in September. In light of the evidence concerning whether Hightower was actually discontinued, when she actually received notice of the reversal of her discontinuance, and when the reversal actually took place, Hightower has raised a triable issue of fact as to whether she experienced an adverse employment action.
b. Constructive Discharge
Plaintiffs also argue that Hightower was constructively discharged from Pan American and therefore suffered an adverse employment action. The Court agrees that there is sufficient evidence by which a reasonable juror could find that Hightower was constructively discharged.
"To succeed on a constructive discharge claim, an employee must ‘show both (1) that there is evidence of the employer's intent to create an intolerable environment that forces the employee to resign, and (2) that ... a reasonable person would have found the work conditions so intolerable that he would have felt compelled to resign.’ " Makinen v. City of New York , 722 F. App'x 50, 52 (2d Cir. 2018) (alteration in original) (quoting Shultz , 867 F.3d at 308 ). To demonstrate intent, a plaintiff may show that the employer "acted with specific intent to prompt employees' resignations" or simply that the employer acted deliberately, rather than negligently. Petrosino v. Bell Atlantic , 385 F.3d 210, 229-30 (2d Cir. 2004). Turning to the second prong, working conditions qualify as intolerable when, viewed as a whole, they are "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Terry v. Ashcroft , 336 F.3d 128, 152 (2d Cir. 2003) (quoting Chertkova v. Connecticut General Life Insurance Co. , 92 F.3d 81, 89 (2d Cir. 1996) ); accord Makinen , 722 F. App'x at 52. The Second Circuit has held that the constructive discharge "standard is higher than the standard for establishing a hostile work environment." Fincher v. Depository Trust & Clearing Corp. , 604 F.3d 712, 725 (2d Cir. 2010).
As to the first element, Plaintiffs put forth evidence indicating that Principal Zanca was intentionally building a record of unsatisfactory observation reports in order to oust Hightower and Flanagan. (Riccardo Statement at 1.) It is undisputed that of the eight probationary teachers evaluated by Principal Zanca at the end of the 2012-13 school year, only Flanagan and Hightower were discontinued, while the non-African American teachers either were granted tenure or had their probationary status extended. (Def. 56.1 ¶¶ 131-33, 135; Riccardo Dep., Ex. E at 42-43.) Indeed, Principal Zanca never gave an unsatisfactory lesson rating to any probationary, untenured teachers other than Flanagan and Hightower. (Declaration of Minerva Zanca dated April 27, 2018 ("Zanca Decl."), attached as Ex. LL to Dandridge Decl., ¶¶ 5-14.) Riccardo testified that Principal Zanca explicitly told him not to provide Hightower with any support or make her a better teacher. (Riccardo Statement at 1; Riccardo Dep., Ex. E at 33, 43-44.) A second Pan American employee corroborated Riccardo's version of the facts, testifying that Principal Zanca only provided Hightower with coaching in order to "cover[ ] her tracks" when she fired her. (Deposition of Lourdes Gonzalez dated May 18, 2017 ("Gonzalez Dep."), attached as Ex. 29 to Hayes-Deats Decl., at 12, 30-31.) Additionally, as discussed above, Zanca and Superintendent Mendez ultimately recommended Hightower's dismissal. This evidence could reasonably be interpreted as proof of deliberate intent. Hightower therefore meets the requirements for establishing the first prong of a constructive discharge claim. As to the second prong – intolerable conditions – a mere "disagreement with management over the quality of an employee's performance will not suffice to establish a constructive discharge." Chertkova , 92 F.3d at 89. The charge here, however, is much more serious. Plaintiffs allege that Principal Zanca engaged in a campaign to terminate the only two probationary African-American teachers at Pan American, while defunding the program of the only tenured African-American teacher. During this same time period, Principal Zanca allegedly made a number of racist remarks to Riccardo about Hightower and the other African-American teachers. Riccardo's testimony was corroborated by two other Pan American employees: Fonseca testified that the Principal remarked that Flanagan's "lips reminded her of the man in the Chiquita Banana commercial" (Fonseca Dep. at 73-74), and Gonzalez testified that she heard the Principal describe Hightower's hair as "nappy," that she would make fun of Flanagan's "big" lips, refer to "dark-skinned persons" as "gorillas" or "monkeys," and that in general, she "had a lot of bias against a lot of people" (Gonzalez Dep. at 14, 19-21, 40, 98). Gonzalez also testified that she believed Principal Zanca liked her and was more open with her because they were both Puerto Rican. (Gonzalez Dep. at 10-11.)
Hightower testified that the atmosphere at Pan American was ultimately the motivating factor behind her decision to switch career tracks. (Hightower Dep., Ex. B at 49.) While it is true that Hightower never directly heard Principal Zanca say anything discriminatory, she nonetheless sensed "coldness" from Principal Zanca and "[c]ouldn't understand why [she] was receiving the ratings that [she] was." (Hightower Dep., Ex. B at 167-70, 193.) The inference that the conditions were intolerable is strengthened by the fact that James also chose to transfer from Pan American, even though she was tenured and therefore could not be terminated.
A reasonable factfinder could therefore conclude that an individual in Hightower's position would feel she was receiving poor ratings regardless of her actual performance, that she was being pushed out from her position, and in response, be compelled to find alternative employment. See Chertkova , 92 F.3d at 90 (finding that "a reasonable person in [plaintiff's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of immediate termination, that she was compelled to leave"). Accordingly, Defendants are not entitled to summary judgment with respect to Hightower's discrimination claims.
As noted above, Defendants did not make an argument addressing their burden under the McDonnell Douglas standard. Having found that Hightower has met the requirements of her prima facie case, the Court need not address the next step.
2. James' Prima Facie Case of Disparate Treatment
As with Hightower, there is no dispute that James meets the requirements for the first two prongs of her prima facie case. Plaintiffs argue that the adverse employment action requirement is met on two grounds: first, that James' per-session pay was reduced, and second, that she was constructively transferred because Principal Zanca's conduct left with her no reasonable choice but to leave Pan American. As with Hightower, James has presented sufficient evidence to survive summary judgment on her discrimination claims.
a. Reduction in After School Per-Session Hours
Plaintiffs contend that the reduction in the number of approved rehearsal hours for James' theater program from an average of fifteen to four hours per week, which resulted in a decrease of her per-session pay, satisfies the third prong of her prima facie case. (Pl. Mem. at 47-48.) Denial or loss of extra hours resulting in loss of actual income can constitute an adverse employment action. Mazyck v. Metropolitan Transportation Authority , 893 F. Supp. 2d 574, 589 (S.D.N.Y. 2012) ; Little v. National Broadcasting Co., Inc. , 210 F. Supp. 2d 330, 379 (S.D.N.Y. 2002).
In April 2013, Principal Zanca informed James that due to budgetary restraints, the rehearsal time for the theater program would be reduced to four hours per week. (4/8/13 Zanca Letter.) Plaintiffs claim that the prior year, James received between twelve and eighteen hours of per-session work each week. (Pl. 56.1 ¶ 347.) This weekly reduction constituted a decrease in James' per-session hours and therefore her compensation for the school year.
In her testimony, James acknowledged that neither former Principal Barros nor Principal Zanca guaranteed she would be able to work the same amount of per session hours in the 2012-13 school year that she had worked during the prior year. (James Dep., Ex. C at 69-73.) Riccardo testified, however, that there was money in the budget specifically earmarked for the theater program, which Principal Zanca redirected to other programs. (Riccardo Statement at 2.) Plaintiffs have also put forth some evidence that Pan American had funds to roll over into the following school year. (Email of Minerva Zanca dated April 16, 2013, attached as part of Ex. 28 to Hayes-Deats Decl.)
Defendants argue that the reduction in James' pay was caused by her own refusal to apply for the reduced per-session hours that were available (Def. Reply James & Hightower Mem. at 3), while Plaintiffs contend that Principal Zanca reduced the rehearsal hours in order to sabotage James' theater program (Pl. 56.1 Responses ¶ 193). While it is true that James did not apply for the limited per-session hours that were available, doing so would still have resulted in reduction of her pay, and applying would have required her to put on a compromised theater production that she did not believe students would want to participate in. (James Dep., Ex. 24 at 170-71.) This claim is also distinguishable from cases where courts have found that loss of opportunities for per-session time do not qualify as adverse actions unless the plaintiff actually applies and is denied, because James was clearly qualified for the position and unequivocally expressed her interest in the work to her supervisors. See, e.g. , Sotomayor v. City of New York , 862 F.Supp.2d 226, 256 (E.D.N.Y. 2012) (no adverse employment action where plaintiff did not apply for per-session work and nothing in the record indicated she would have gotten the job); Spaulding v. New York City Department of Education , No. 12 CV 3041, 2015 WL 12645530, at *36 (E.D.N.Y. Feb. 19, 2015), report and recommendation adopted , 2015 WL 5560286 (E.D.N.Y. Sept. 21, 2015) (same).
Plaintiffs' argument is further bolstered by the fact that during the 2013-14 school year, after James departed Pan American, Principal Zanca approved 300 per-session hours for the theater program. (Zanca Dep., Ex. 9 at 204.) Plaintiffs claim this funding is equal to approximately ten hours of rehearsal per week – six hours more per week than Principal Zanca provided for during the spring semester of the prior year when James was still employed at Pan American. (Pl. 56.1 Responses ¶ 219.) In short, there is evidence by which a reasonable juror could find that an adverse employment action was taken against James. b. Constructive Involuntary Transfer
Plaintiffs also argue that James' transfer from Pan American to MTLHS, another school within the DOE network, constituted an involuntary transfer and qualified as an adverse employment action. In his decision on Defendants' earlier motion to dismiss, the Honorable James C. Francis IV, United States Magistrate Judge, held, "Although establishing that working conditions are so intolerable that a reasonable person would feel compelled to leave is a demanding standard, the allegations here are extreme [and] a reasonable person in Ms. James' position might feel compelled to transfer ...." DOE I , 2017 WL 435940, at *8 (internal quotation marks and citations omitted) (quoting Pryor v. Jaffe & Asher, LLP , 992 F. Supp. 2d 252, 262 (S.D.N.Y. 2014) ). Accordingly, it is law of the case that James may bring a constructive involuntary transfer claim if (1) she was discriminated against to the point that working conditions were so intolerable that a reasonable person in her shoes would feel compelled to transfer; and (2) her transfer created a materially significant disadvantage in her working conditions. DOE I , 2017 WL 435940, at *8.
As to the working conditions at Pan American, Plaintiffs argue that Principal Zanca "ruthlessly targeted" James by, among other things, attempting to cancel the February 2013 production at the last minute, reducing her rehearsal hours and thereby effectively cancelling the Spring performance, reducing James' per-session pay, disparaging James to the parents of her students, initiating an OSI investigation into James' per-session hours, berating James for taking a pre-approved day off, and speaking to her in a dismissive and condescending manner. (Pl. James & Hightower Mem. at 5.) Plaintiffs claim that these efforts were part of a larger scheme to rid Pan American of all of its African-American teachers. During this same period, multiple Pan American employees also reported that Principal Zanca made racially derogatory remarks about the other Pan American African-American teachers.
James testified that she was "devastated and heartbroken" over the environment at Pan American, that it was "very uncomfortable" to work with a supervisor who described African Americans as gorillas, and as a result, she decided it would be "unbearable" to return to the school. (James Dep., Ex. 24 at 123-24.) A jury could reasonably find that Principal Zanca's purported efforts to eliminate, or at least diminish the theater program operated by James, coupled with her offensive remarks, would reasonably compel a person to transfer to a different school.
The remaining issue then is whether James' transfer led to a materially significant disadvantage in the terms and circumstances of her employment. A disadvantage can include "a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation." Williams v. R.H. Donnelley, Corp. , 368 F.3d 123, 128 (2d Cir. 2004) (alteration in original) (quoting Galabya , 202 F.3d at 640 ); see also Lore v. City of Syracuse , 670 F.3d 127, 170 (2d Cir. 2012) ("[T]he transfer of an employee from an elite position to one that is less prestigious ... with little opportunity for professional growth is sufficient to permit a jury to infer that the transfer was a materially adverse employment action." (internal quotation marks omitted) (alteration in original) (quoting de la Cruz v. New York City Human Resources Administration , 82 F.3d 16, 21 (2d Cir. 1996) )). Plaintiffs argue that MTLHS was a smaller school that was scheduled to close the following year, and consequently, James' new position there had a lower salary and less room for professional growth. (Pl. James & Hightower Mem. at 13-14.)
Those arguments, however, are only partially supported by the record. James testified that at MTHLS, she had the opportunity to work with a "fantastic" administrator to revitalize the school's theater program. (James Dep., Ex. Cat 122-23, 131.) And while it is true that MTHLS was scheduled to close, and did indeed close, James was able to transfer again to another school within the DOE system. (Def. 56.1 ¶¶ 213-15.) James has therefore not put forth any facts indicating that she experienced professional stagnation as a result of her transfer.
James' other argument fares a little bit better. She argues that she was materially disadvantaged because she received fewer per-session hours and thus a lower salary at MTHLS. When asked whether she was "allowed to spend the same amount of money [at MTHLS compared to] when you were at Pan American," James testified, "It was less, it was like two or three hundred hours." (James Dep., Ex. C at 122-23.) During that same year, Principal Zanca approved 300 per-session hours for the Pan American theater program. (Zanca Dep., Ex. 9 at 204.) James' assertion that she worked only "two or three hundred hours" after transferring from Pan American is vague. If she worked three hundred per-session hours at MTHLS, then her per-session was not reduced. But if James worked less than three hundred hours, a reasonable juror could conclude, depending on the extent of the reduction, that James incurred a decrease in her compensation.
It is a close call as to whether James has met her burden of presenting an adequate prima facie showing of a constructive discharge, but at the summary judgment stage the Court is required to "draw all permissible factual inferences" in plaintiff's favor. See Johnson v. Killian , 680 F.3d 234, 236 (2d Cir. 2012). Accordingly, Defendants' motion for summary judgment on James' discrimination claims, including constructive discharge, should be denied.
B. James' Hostile Work Environment Claims
Defendants have also moved for summary judgment on James' hostile work environment claims. This portion of Defendants' motion should be denied as well.
To survive a motion for summary judgment, a plaintiff claiming that she was the victim of an unlawful hostile work environment in violation of Title VII, § 1981, and the NYSHRL must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Littlejohn v. City of New York , 795 F.3d 297, 320-21 (2d Cir. 2015) (quoting Harris v. Forklift System, Inc. , 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ); accord Armstrong v. Metropolitan Transportation Authority , No. 07 Civ. 3561, 2015 WL 992737, at *2 (S.D.N.Y. March 3, 2015).
Making a "hostility" determination entails examining the totality of the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the victim's performance. Hayut v. State University of New York , 352 F.3d 733, 745 (2d Cir. 2003) (quoting Harris , 510 U.S. at 23, 114 S.Ct. 367 ). Plaintiff is not required to demonstrate that her race was the only motivating factor; rather she need only show that "a reasonable fact-finder could conclude that race [ ] was a motivating factor in the harassment." Rivera v. Rochester Genesee Regional Transportation Authority , 743 F.3d 11, 23 (2d Cir. 2014) (emphasis in original) (quoting Terry , 336 F.3d at 150 ). "This standard has both objective and subjective components: the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive." Raspardo v. Carlone , 770 F.3d 97, 114 (2d Cir. 2014).
If the harassing employee is a supervisor and no "tangible employment action is taken," then the employer may escape liability by establishing as an affirmative defense "that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided." Vance v. Ball State University , 570 U.S. 421, 424, 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013).
Here, the harassing employee, Principal Zanca, was James' supervisor, and Defendants have not argued that the DOE either exercised reasonable care to prevent the harassing behavior or that James failed to take advantage of any corrective opportunities. Defendants instead argue that summary judgment must be granted on James' hostile work environment claims because the alleged acts are neither severe nor pervasive enough to constitute an objectively hostile work environment. (Def. Mem. at 34.)
With respect to the requisite subjective component, James clearly believed herself to be working in a hostile environment. She testified that while Principal Zanca was very friendly and professional with other staff members, with James she was "very abrasive and dismissive." (James Dep., Ex. 24 at 23.) Even before James was aware of the Principal's racist remarks, James sought mental health treatment in connection with anxiety over her work, and after she became aware of those remarks, she felt compelled to leave behind a theater program she had built and nurtured from inception. (See James Dep., Ex. 24 at 123-24; Treatment Notes at 1.)
As to the objective component, "[f]or racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity." Schwapp , 118 F.3d at 110 (quoting Snell v. Suffolk County , 782 F.2d 1094, 1103 (2d Cir. 1986) ). Overall, "the quantity, frequency, and severity of th[e] slurs" at issue are to be "considered cumulatively in order to obtain a realistic view of the work environment." Id. at 110-11 (internal quotation marks omitted) (first quoting Vore v. Indiana Bell Telephone Co. , 32 F.3d 1161, 1164 (7th Cir.1994), then quoting Doe v. R.R. Donnelley & Sons Co. , 42 F.3d 439, 444 (7th Cir. 1994) ). All of Principal Zanca's comments were alleged to have taken place during the same school year. The nature of these comments is also quite severe. As the Fourth Circuit Court of Appeals has found, the use of the word "monkey" to describe a human being's physical appearance, as Principal Zanca allegedly did, "goes far beyond the merely unflattering; it is degrading and humiliating in the extreme." Spriggs v. Diamond Auto Glass , 242 F.3d 179, 185 (4th Cir. 2001). Defendants emphasize that James did not actually overhear any racist comments and that none were directed at her. But racist comments heard secondhand rather than directly are still probative of a hostile work environment and should not be ignored for the purposes of the Court's analysis. See Schwapp , 118 F.3d.at 111 ("The mere fact that [plaintiff] was not present when a racially derogatory comment was made will not render that comment irrelevant to his hostile work environment claim."); Whidbee v. Garzarelli Food Specialties, Inc. , 223 F.3d 62, 71 (2d Cir. 2000) (holding that the district court erred in ruling that statements uttered outside plaintiff's presence had no probative value).
Defendants also argue that in ascertaining evidence of a hostile work environment, the Court should not consider the facially race-neutral incidents relied upon by Plaintiffs, such as Principal Zanca's decision to reduce the budget for the theater program. The Court finds that argument unpersuasive and is unable to conclude as a matter of law that these incidents should not be considered. See Raniola v. Bratton , 243 F.3d 610, 621-22 (2d Cir. 2001) (facially neutral incidents may be considered as part of the totality of circumstances if circumstantial evidence indicates that the adverse treatment was suffered as a result of a protected characteristic). Principal Zanca's racially charged statements combined with her treatment of all three African-American teachers at Pan American permit an inference that her facially neutral acts were racially motivated.
The record does contain evidence that conflicts with James' claim. For instance, James received a "satisfactory" annual performance rating and two "satisfactory" observation reports. (Def. 56.1 ¶¶ 170-77.) Unlike both Flanagan and Hightower, however, James was a tenured teacher, and therefore was not subject to the same evaluation process as probationary teachers. (Def. 56.1 ¶ 26.)
Reasonable jurors may disagree about whether the facts above constitute a hostile work environment, therefore rendering summary judgment inappropriate. See Spence v. Bukofzer , No. 15 Civ. 6167, 2017 WL 1194478, at *8 (S.D.N.Y. March 30, 2017) (denying defendant's motion for summary judgment against an African-American plaintiff's hostile work environment claim where acts included unfavorable evaluations, accusations of lying, unfavorable assignments, demotions and salary decreases, and derogatory remarks, including the supervisor referring to black employees as "monkeys" and "slaves"); Fisher v. Mermaid Manor Home for Adults, LLC , 192 F. Supp. 3d 323, 329 (E.D.N.Y. 2016) (denying defendant's motion for summary judgment against an African-American plaintiff's hostile work environment claim where a co-worker posted social media comparing plaintiff to a fictional chimpanzee). Accordingly, James' hostile work environment claims should not be dismissed.
C. NYSHRL and NYCHRL Aiding and Abetting Claims
Defendants have moved for summary judgment on the aiding and abetting claims of Riccardo, Hightower, and James. Section 296(6) of the NYSHRL provides that "[i]t shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article or to attempt to do so." The NYCHRL contains a similar liability provision. See NYCHRL § 8-107(6). The same standards of analysis used to evaluate aiding and abetting claims applies to claims brought under both the NYCHRL and the NYSHRL "because the language of the two laws is ‘virtually identical.’ " Feingold v. New York , 366 F.3d 138, 158 (2d Cir. 2004) (quoting Dunson v. Tri–Maintenance & Contractors, Inc. , 171 F. Supp. 2d 103, 113-14 (E.D.N.Y. 2001) ).
Under these provisions, individual defendants who "actually participate[ ] in the conduct giving rise to a discrimination claim may be held personally liable." Tomka v. Seiler Corp. , 66 F.3d 1295, 1317 (2d Cir. 1995). But without an underlying NYSHRL or NYCHRL violation there can be no aiding or abetting of acts forbidden under those laws. Boonmalert v. City of New York , 721 F. App'x 29, 34 (2d Cir. 2018). Additionally, an "individual cannot aid and abet their own discriminatory conduct." Id.
All NYCHRL and the NYSHRL claims brought by Riccardo, Hightower, and James against Superintendent Mendez and the DOE were dismissed in prior orders for failure to file a notice of claim. Principal Zanca is therefore the only Defendant against whom Plaintiffs still have any viable state and municipal claims. Since there is no underlying violation by an individual other than Principal Zanca, the aiding and abetting claims against her must also be dismissed.
See DOE I , 2017 WL 435940, at *9 ; United States v. New York City Department of Education (DOE II ), Nos. 16 Civ. 4291, 16 Civ. 4891, 2017 WL 57854, at *1 (S.D.N.Y. Jan. 4, 2017).
D. Retaliation Claims
Defendants have moved for summary judgment on Hightower's, James', and Riccardo's retaliation claims. Hightower's and James' retaliation claims should be dismissed for failure to identify an adverse action that post-dates the Plaintiffs' protected activity. Riccardo's claims, however, survive this motion.
1. Legal Standard for Retaliation Claims
Retaliation claims under Title VII, the NYSHRL, and the NYCHRL, like disparate treatment claims, are analyzed using the three-part test outlined in McDonnell Douglas . See Hicks , 593 F.3d at 164.
Courts apply the McDonnell Douglas framework analysis to all the claims here, though the plaintiff's burden is generally reduced under the NYCHRL. Loeffler v. Staten Island University Hospital , 582 F.3d 268, 278 (2d Cir. 2009) (claims of retaliation brought under the NYCHRL must be evaluated with an eye towards the statute's "uniquely broad and remedial purpose.") At the first step, retaliation claims under the NYCHRL cover a broader range of conduct, requiring only that "the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity." N.Y.C. Admin. Code § 8-107(7). Under the NYCHRL, the plaintiff is also not required to meet the "but-for" causation standard; instead, "plaintiff need establish only that the protected activity was a motivating factor behind the defendant's retaliatory action." Philip v. Gtech Corp. , No. 14 Civ. 9261, 2016 WL 3959729, at *11 (S.D.N.Y. July 20, 2016).
In order to make out a prima facie case of retaliation, the plaintiff must show: "(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse action; and (4) a causal connection between the protected activity and the adverse employment action." Id. at 164 ; see also Mayers v. Emigrant Bancorp, Inc. , 796 F. Supp. 2d 434, 445 (S.D.N.Y. 2011). "The plaintiff's burden in this regard is ‘de minimis,’ and ‘the court's role in evaluating a summary judgment request is to determine only whether proffered admissible evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive.’ " Hicks , 593 F.3d at 164 (quoting Jute v. Hamilton Sundstrand Corp. , 420 F.3d 166, 173 (2d Cir. 2005) ). "It is a burden of production, not persuasion, and involves no credibility assessments." Whethers v. Nassau Health Care Corp. , 956 F. Supp. 2d 364, 375 (E.D.N.Y. 2013) (citing Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ).
"The term ‘protected activity’ refers to action taken to protest or oppose statutorily prohibited discrimination." Cruz v. Coach Stores, Inc. , 202 F.3d 560, 566 (2d Cir. 2000). "An employee engages in a protected activity when she complains of an employment practice that she reasonably believes violates the law." Mayers v. Emigrant Bancorp, Inc. , 796 F. Supp. 2d 434, 448 (S.D.N.Y. 2011). "[I]mplicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff's opposition was directed at [prohibited] conduct ...." Galdieri-Ambrosini v. National Realty & Development Corp. , 136 F.3d 276, 292 (2d Cir. 1998). In the retaliation context, the Second Circuit defines "adverse employment action" more broadly than in the discrimination context. See Hicks , 593 F.3d at 165. Materially adverse actions for the purposes of a prima facie retaliation case are those that are "harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." Id. (quoting Burlington Northern and Santa Fe Railway Co. v. White , 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ).
To satisfy the fourth prong of a prima facie case, the plaintiff must show that the retaliation was a "but-for" cause of the adverse action, and not simply a substantial or motivating factor in the employer's decision. University of Texas Southwestern Medical Center v. Nassar , 570 U.S. 338, 360, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013). This showing of " ‘but-for’ causation does not require proof that retaliation was the only cause of the employer's action, but only that the adverse action would not have occurred in the absence of the retaliatory motive." Zann Kwan v. Andalex Group LLC , 737 F.3d 834, 846 (2d Cir. 2013). "Proof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon v. New York City Board of Education , 232 F.3d 111, 117 (2d Cir. 2000).
"Once the plaintiff has established a prima facie showing of retaliation, the burden shifts to the employer to articulate some legitimate, non-retaliatory reason for the employment action." Zann Kwan , 737 F.3d at 845. "After the defendant has articulated a non-retaliatory reason for the employment action, the presumption of retaliation arising from the establishment of the prima facie case drops from the picture." Id. If the defendant establishes a non-retaliatory motive, the plaintiff may still prevail by demonstrating that the stated rationale is pretextual. Jute , 420 F.3d at 173, 179-80. "The plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action." Weinstock v. Columbia University , 224 F.3d 33, 42 (2d Cir. 2000) (internal quotation and alteration marks omitted) (quoting Van Zant v. KLM Royal Dutch Airlines , 80 F.3d 708, 714 (2d Cir. 1996) ). A plaintiff may prove a retaliatory motive by "demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action." Zann Kwan , 737 F.3d at 846.
2. Hightower's Retaliation Claims
The parties agree that Hightower and James both participated in protected activity for the first time on June 24, 2013, when they filed their respective OEO complaints. There is also no dispute that the DOE was aware of the complaints. The first and second elements of Hightower's prima facie case are therefore satisfied.
Defendants argue that Hightower's retaliation claims must be dismissed, however, because no adverse employment action took place after June 24, 2013. Plaintiffs have not responded to this portion of Defendants' argument. Based upon a review of the record, the Court agrees with Defendants.
Principal Zanca's recommendation of Hightower's discontinuance took place on June 13, 2013, eleven days prior to Hightower's protected activity. It is axiomatic that an adverse employment action cannot serve as the basis for a retaliation claim if the retaliatory action took place prior to the protected activity. Cayemittes v. City of New York Department of Housing Preservation & Development , 974 F. Supp. 2d 240, 262 (S.D.N.Y. 2013), aff'd , 641 F. App'x 60 (2d Cir. 2016). Without a causal connection between the filing of her OEO complaint and an adverse employment action, Hightower is unable to satisfy the final prong of her prima facie case, even under the more liberal NYCHRL standard. See Melman v. Montefiore Medical Center , 98 A.D.3d 107, 128-29, 946 N.Y.S.2d 27, 42-43 (1st Dep't 2012) (granting summary judgment on NYCHRL retaliation claim because the alleged adverse action was a continuation of Defendants' course of conduct before the protected activity took place). Accordingly, Defendants' motion for summary judgment dismissing Hightower's retaliation claims should be granted.
3. James' Retaliation Claims
Defendants argue that James' retaliation claims, like Hightower's, warrant dismissal because no adverse actions were taken after she filed her OEO complaint on June 24, 2013. James contends that in retaliation for her OEO complaint, Principal Zanca took two separate adverse and material actions against her. The Court finds that neither of these alleged acts qualifies as an adverse action.
First, James claims that as a means of forcing James' resignation from Pan American, Principal Zanca lied that she witnessed James inform the press that she had resigned. (Pl. 56.1 Responses ¶ 208.) To support this claim, James relies solely on a series of emails Principal Zanca wrote to DOE officials in July 2013. There, Principal Zanca claimed that James had said on the news that she had resigned, but noted that Principal Zanca had "not received a letter of resignation" and that she "would like to fill her position if she is indeed resigning." (Email of Minerva Zanca dated July 31, 2013, attached as part of Ex. 111 to Hayes-Deats Decl.; see also Email of Minerva Zanca dated July 10, 2013, attached as Ex. 112 to Hayes-Deats Decl.) Plaintiffs argue that these "false statements" clearly create the inference of retaliation. However, even a reading of these emails in the light most favorable to Plaintiffs does not support their interpretation of the facts. Principal Zanca appears to be simply seeking confirmation of whether or not James is returning to Pan American. This cannot reasonably be construed as a retaliatory act, especially when it is not supported by any additional evidence. See Jeffreys v. City of New York , 426 F.3d 549, 554 (2d Cir. 2005) ("At the summary judgment stage, a nonmoving party ‘must offer some hard evidence showing that its version of the events is not wholly fanciful.’ " (quoting D'Amico v. City of N.Y. , 132 F.3d 145, 149 (2d Cir. 1998) ). Second, Plaintiffs claim that Principal Zanca retaliated by sabotaging James' efforts to obtain a teaching position over the summer of 2013. James testified that she applied for a summer school position at a different school within the DOE network and that the hiring principal was initially enthusiastic about appointing her to fill the position, but after speaking with Principal Zanca, the hiring principal decided to hire somebody with more relevant experience. (James Dep., Ex. 24 at 196-98.) The only basis for James' belief that Principal Zanca even spoke with the principal of the hiring school is a document she claims to have read, but has not identified, let alone produced, and which she vaguely describes as indicating that Principal Zanca reached out to the hiring principal. (James Dep., Ex. 24 at 196-97.)
Plaintiffs have not provided any other factual support for this claim. Deposition testimony must be treated as true for purposes of summary judgment. Daley v. McNeil Consumer Products Co., a division of McNeil-PPC , 164 F. Supp. 2d 367, 376 (S.D.N.Y. 2001). But James' testimony about an unidentified document that is not in evidence and which purportedly refers to what someone else said contains multiple levels of inadmissible hearsay. The Court may not consider evidence that would not be admissible at trial. Davis-Bell v. Columbia University , 851 F. Supp. 2d 650, 675-76 (S.D.N.Y. 2012) (collecting cases). For instance, "if a deponent states that he overheard another person make a statement, and the deponent would not be allowed to testify at trial as to what the other person said because of the rule against hearsay, the deponent's statement may not be considered on a motion for summary judgment." Id. at 676 (quoting Donovan v. Diplomat Envelope Corp. , 587 F. Supp. 1417, 1426 (E.D.N.Y. 1984), aff'd , 760 F.2d 253 (2d Cir. 1985) ). James' inadmissible testimony does not raise a triable issue of fact, and cannot sustain her retaliation claims.
4. Riccardo's Retaliation Claims
This Court previously dismissed Riccardo's NYSHRL and NYCHRL retaliation claims against Mendez and the DOE for failure to file a timely notice of claim. DOE II , 2017 WL 57854, at *1. Riccardo's only remaining retaliation claims are his (1) § 1983 retaliation claims against the DOE, Principal Zanca, and Superintendent Mendez, (2) Title VII retaliation claim against the DOE, and (3) NYSHRL and NYCHRL retaliation claims against Principal Zanca. Defendants contest each element of Riccardo's prima facie case. The Court finds that there are questions of material fact regarding whether Riccardo was retaliated against because he refused to engage in racial discrimination. Accordingly, Riccardo's retaliation claims may proceed.
Riccardo's § 1983 claims based on retaliatory conduct on or prior to June 23, 2013 were also previously dismissed on statute of limitations grounds. See United States v. New York City Department of Education , Nos. 16 Civ. 4291, 16 Civ. 4844, 2017 WL 57854 (S.D.N.Y. April 4, 2017).
a. Riccardo's Engagement in Protected Activity
To make out the first two elements of his prima facie case, Riccardo must demonstrate that he engaged in protected activity and that Defendants were aware of that activity prior to any adverse action.
Riccardo's July 23, 2013 testimony before the OEO detailing Principal Zanca's conduct unquestionably qualifies as protected activity. See Cruz , 202 F.3d at 566 ("The term ‘protected activity’ refers to action taken to protest or oppose statutorily prohibited discrimination."). Plaintiffs also argue that two additional acts constituted protected activity: (1) Riccardo's refusal to give Hightower an "unsatisfactory" rating for her lesson and (2) his June 24, 2013 statement describing Principal Zanca's conduct. (Pl. Mem. at 35.)
i. Hightower's "Satisfactory" Rating
Plaintiffs claim that Riccardo's decision to award Hightower a "satisfactory" rating constituted a protest of Principal Zanca's discriminatory efforts. Defendants argue that Riccardo never specifically articulated that this rating was in opposition to Principal Zanca's alleged discriminatory conduct and that such vague, ambiguous "protest" cannot qualify as protected activity. In his June 24 statement, Riccardo stated that Principal Zanca's decision was motivated by "emotion, race, and retaliation" and when Zanca realized that Riccardo had decided to cease his support for her "unethical" behavior, she "oust[ed]" him. (Riccardo Statement at 2.) As explained previously, Riccardo's written statement may be considered on this motion because the speaker, Riccardo, has given testimony and will testify at trial.
The parties dispute the precise date that Defendants became aware of Riccardo's decision to rate Hightower's lesson as "satisfactory." Although Riccardo's observation of Hightower took place on April 18, 2013, and a post-observation conference was held on April 26, Riccardo did not sign the formal report until June 6, 2013. (April 18 Formal Observation Report.) Plaintiffs argue however, that Principal Zanca became aware of the rating during the post-observation conference. To support this contention, they point to Riccardo's written statement, asserting that Principal Zanca found out about his decision on April 26, 2013, was "hysterically upset," and had Riccardo escorted from Pan American by security. (Riccardo Statement at 2.) Plaintiffs also point to Riccardo's testimony to the OEO that Zanca found out in or about April 2013. (OEO Mem. at USA0735.) Giving Plaintiffs the benefit of every possible reasonable inference, the Court assumes, for purposes of this motion that Principal Zanca found out about Riccardo's alleged protected activity on April 26, 2013.
Plaintiffs rely upon Villavicencio v. Gure-Perez , 56 F. Supp. 3d 178 (E.D.N.Y. 2014), for the proposition that refusing to follow a supervisor's order to engage in discriminatory conduct can qualify as protected activity. (Plaintiffs' Sur-Reply Memorandum of Law in Further Opposition to Defendants' Omnibus Motion for Partial Summary Judgment ("Pl. Sur-Reply") at 3-4.) Here, as in Villavicencio , there was evidence that racism "played a role in the manner in which [the principal] ran the school," 56 F. Supp. 3d at 189-90, and therefore by refusing to provide African-American teachers with an unjustified "unsatisfactory" rating, Riccardo may have been informally protesting discrimination against his colleagues. Indeed, Principal Zanca referred to Riccardo's action as "sabotage." (Email of Minerva Zanca dated June 10, 2013, attached as Ex. 40 to Hayes-Deats Decl.) Construing the evidence in the light most favorable to Plaintiffs, Principal Zanca could "reasonably have understood[ ] that the plaintiff's opposition was directed at conduct prohibited by Title VII." Galdieri-Ambrosini , 136 F.3d at 292 ; see also Sumner v. U.S. Postal Service , 899 F.2d 203, 209 (2d Cir. 1990) (Title VII protects informal protests of discriminatory employment practices); Krasner v. HSH Nordbank AG , 680 F. Supp. 2d 502, 521–22 (S.D.N.Y. 2010) (where the conduct complained lends itself to a reasonable inference of unlawful discrimination, plaintiff does not need to explicitly use "magic words" such as "discrimination"). Accordingly, a reasonable juror could find that Riccardo engaged in protected activity when he rated Hightower's lesson "satisfactory."
ii. June 24, 2013 Statement
Riccardo's June 24, 2013 statement describing Principal Zanca's alleged discriminatory conduct also qualifies as protected activity. There is no indication in the record, however, that any Defendants or DOE officials were aware of the statement prior to the press coverage of Riccardo's allegations. For purposes of this motion, Defendants concede that the June 27, 2013 news media coverage, which was based, in part, on Riccardo's June 24 statement, constitutes protected activity. (Def. Mem. at 15.)
b. Materially Adverse Actions
As to the third element of Riccardo's prima facie case of retaliation, Plaintiffs identify the following ostensible adverse employment actions: (1) Principal Zanca's recommendation that Riccardo be discontinued; (2) the disciplinary letters Principal Zanca wrote to Riccardo's file on June 18, 2013, and (3) Principal Zanca's marijuana allegations and the subsequent SCI investigation. (Pl. Mem. at 35-36.) To be considered retaliatory, any adverse action would need to have taken place after April 26, 2013 – the earliest date that any Defendants became aware of Riccardo's protected activity.
i. Recommendation of Discontinuance and Disciplinary Letters
Plaintiffs claim that Principal Zanca's June 25, 2013 evaluation recommending Riccardo's termination, the two disciplinary letters she issued to his file on June 18, 2013, regarding his insubordination and absenteeism, and the two disciplinary letters Principal Zanca issued to Riccardo's file on May 2, 2013, qualify as adverse employment actions. (Def. 56.1 ¶ 258; Disciplinary Letter for Insubordination; Disciplinary Letter for Absenteeism.) Negative evaluations may be considered adverse where the evaluation negatively impacted plaintiff's employment, although "[w]hether they do is typically a question of fact for the jury." Digilov v. JPMorgan Chase Bank, N.A. , No. 13 Civ. 975, 2015 WL 685178, at *17 (S.D.N.Y. Feb. 18, 2015) (quoting Lawrence v. Mehlman , 389 F. App'x 54, 56 (2d Cir.2010) ); see Flanagan , 2015 WL 11142630, at *9 ("The unsatisfactory ratings Principal Zanca gave [Flanagan] in his observation reports and annual performance review constituted employment actions" since they were accompanied by an adverse result); Regis v. Metro. Jewish Geriatric Center , No. 97 Civ. 906, 2000 WL 264336, at *8 (S.D.N.Y. Jan. 11, 2000) (disciplinary memoranda and evaluations qualify as adverse if they affect ultimate employment decisions such as termination).
These allegedly retaliatory acts are outside the relevant limitations periods for Riccardo's § 1983 claims.
Defendants concede that Riccardo's poor performance and absenteeism contributed to the decision to discontinue him. (Def. Reply USA Mem. at 11.) The disciplinary letters and evaluations relating to Riccardo's absences and performances clearly "had a deleterious effect" on Riccardo's employment and constituted an adverse action. Digilov , 2015 WL 685178, at *17.
ii. SCI Report and Investigation
Defendants argue that Principal Zanca's July 26, 2013 report to the SCI that Riccardo provided marijuana to another employee at Pan American and the resulting SCI investigation do not qualify as an adverse employment action because the investigation had no negative impact on Riccardo's employment with the DOE. (Def. Omnibus Reply Mem. at 12-13.)
The Second Circuit has held that "an employer's investigation may constitute a cognizable retaliatory action ... if conducted in such an egregious manner as to dissuade a reasonable worker from making or supporting a charge of discrimination." Cox v. Onondaga County Sheriff's Department , 760 F.3d 139, 147 (2d Cir. 2014) (quoting White , 548 U.S. at 57, 126 S.Ct. 2405 ). For discrimination claims, investigations are not sufficient to plead an adverse employment action where the "charges at issue did not result in subsequent employment consequences," Anemone v. Metropolitan Transportation Authority , 410 F. Supp. 2d 255, 266 (S.D.N.Y. 2006), but the standard for retaliation claims are broader, White , 548 U.S. at 67-68, 126 S.Ct. 2405.
Here, Principal Zanca not only reported that Riccardo brought drugs to school, but during the subsequent investigation, she also alleged that Riccardo was a recovering drug addict and a former member of the Hell's Angels gang. (SCI Investigation Report at SDNY_01047.) A juror could reasonably find that the prospect of derogatory allegations would deter an individual of ordinary firmness from the exercise of his constitutional rights.
Finally, the Court must also consider Defendants' actions in the aggregate, "as even minor acts of retaliation can be sufficiently substantial in gross." Hicks , 593 F.3d at 165 (internal quotation marks omitted) (quoting Zelnik v. Fashion Institute of Technology , 464 F.3d 217, 227 (2d Cir. 2006) ). Weighed together, Riccardo's discontinuance recommendation, the disciplinary letters, and the SCI investigation are sufficiently significant to be actionable, materially adverse retaliatory actions.
c. Causal Connection
To make out a prima facie case of retaliation, a plaintiff must provide proof "that the adverse action would not have occurred in the absence of the retaliatory motive." Zann Kwan , 737 F.3d at 846. That is, plaintiff must put forward a triable issue on the question of whether the action was motivated by a desire to retaliate for specific protected activities. He can do so either by direct proof of defendant's retaliatory animus or by indirect circumstantial proof, such as a close temporal connection between the protected activity and the allegedly retaliatory act. Littlejohn , 795 F.3d at 319.
A plaintiff may rely solely on temporal proximity if the protected activity and alleged retaliation occurred "very close" in time. Clark County School District v. Breeden , 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (quoting O'Neal v. Ferguson Construction Co. , 237 F.3d 1248, 1253 (10th Cir. 2001) ). Generally, periods greater than two months are too long to support the inference of causation. Flanagan , 2015 WL 11142630, at *12. In this case, nearly all the protected and adverse actions all took place within a two-month window between June and July. This temporal proximity alone is sufficient to support the inference of causation for the purposes of Riccardo's prima facie case.
d. Defendant's Nondiscriminatory Justification
Because Riccardo has put forth evidence supporting a prima facie case of retaliation, "[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason" for Defendants' actions. McDonnell Douglas , 411 U.S. at 802, 93 S.Ct. 1817.
Defendants claim that their actions were justified due to Riccardo's performance issues, namely: (1) the transcript errors that led to rescission of diplomas for five Pan American seniors; (2) the programming errors that impacted scheduling of students' courses; (3) missing more than 34 days of school in a six month period; (4) the change in his duties from supervision to security; (5) the disciplinary letters he received for insubordination; and (6) his negative evaluation. (Riccardo Log at USA002561-67.) The record contains evidence of Riccardo's performance issues and absences starting long before any alleged protected activity took place. Indeed, Riccardo himself testified that his relationship with Principal Zanca began to "deteriorate" as early as January 2013. (Pl. 56.1 Responses ¶ 251.)
As to the SCI investigation, Principal Zanca testified that she was informed of Riccardo's intent to bring drugs to school by another Pan American employee and that as a mandated reporter, she was required to make the report. (Zanca Dep., Ex. G at 262-64.) These are potentially legitimate justifications for the adverse actions taken against Riccardo. See Joseph v. Owens & Minor Distribution, Inc. , 5 F. Supp. 3d 295, 313 (E.D.N.Y. 2014) ; Butler v. New York Health & Racquet Club , 768 F. Supp. 2d 516, 533-34 (S.D.N.Y. 2011).
e. Pretext for Retaliation
Because Defendants have proffered evidence of legitimate, nondiscriminatory reasons for their actions, the burden shifts back to Plaintiffs to show that Defendants' reasons are actually pretext. "A plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action. From such discrepancy, a reasonable juror could conclude that the explanations were a pretext for a prohibited reason." Zann Kwan , 737 F.3d at 845.
As evidence that Principal Zanca's discontinuance recommendation was pretextual, Plaintiffs argue that Zanca "did not raise any of these purposed concerns" until after Riccardo took action against her. (Pl. Mem. at 39.) Plaintiffs point to the fact that the types of transcript and programming errors identified by Principal Zanca in her evaluation were found at "a number of schools [and] had never resulted in discipline, much less discontinuation." (Pl. Mem. at 39 (internal quotation marks omitted).) Also suggestive is the fact that those performance issues were identified in January, but disciplinary measures were not taken against Riccardo until late April. (Def. 56.1 ¶ 257.) And, as late as April 17, Principal Zanca was still writing glowing reviews and recommendations regarding Riccardo's performance. (Email of Minerva Zanca dated April 17, 2013, attached as Ex. 35 to Hayes-Deats Decl.)
Furthermore, Principal Zanca testified that she would initiate a log of support when a teacher was unable to meet their goals. (Zanca Dep., Ex. 9 at 58-59.) Riccardo's log of support is dated June 6, 2013 – the same date that he signed Hightower's "satisfactory" observation. (Riccardo Log.) This raises a strong inference that Principal Zanca's disciplinary measures were retaliatory. Lourdes Gonzalez, a history teacher at Pan American, also testified that Principal Zanca initially liked Riccardo, but that changed after he refused to give Hightower an "unsatisfactory" rating, when "everything just went crazy." (Gonzalez Dep. at 24.) Finally, the disparaging nature of Principal Zanca's statements to the SCI investigator regarding Riccardo's past cast a cloud on her motivation.
The Court finds that these facts constitute evidence from which a reasonable juror could find that Defendants' articulated reasons were a pretext for retaliation. The weaknesses and inconsistencies in Defendants' explanations constitute evidence from which a reasonable juror could find that, but for their desire to retaliate against Riccardo, Defendants would not have taken disciplinary measures against Riccardo or recommended his discontinuance. The fact that Defendants' adverse actions were in close temporal proximity to Riccardo's protected activity is additional evidence to support the inference of pretext. See Zann Kwan , 737 F.3d at 847 ("[A] plaintiff may rely on evidence comprising her prima facie case, including temporal proximity, together with other evidence such as inconsistent employer explanations, to defeat summary judgment at [the pretext] stage.").
These disputed facts, if proven, are sufficient to give rise to the inference that Defendants' actions were retaliatory. The issue should be left for the jury to decide at trial.
5. Riccardo's First Amendment Retaliation Claims
Riccardo has also brought a claim for retaliation in violation of his First Amendment rights. Defendants have moved for summary judgment, citing many of the same arguments articulated above.
First Amendment claims are analyzed under the same burden shifting analysis described above. To make out his prima facie case, a "plaintiff asserting a First Amendment retaliation claim must establish that: (1) his speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him; and (3) there was a causal connection between this adverse action and the protected speech." Matthews v. City of New York , 779 F.3d 167, 172 (2d Cir. 2015) (internal quotation marks omitted) (quoting Cox v. Warwick Valley Center School District , 654 F.3d 267, 272 (2d Cir. 2011) ). Riccardo has set forth evidence to support each of these elements.
For purposes of this motion, Defendants concede that the June 27, 2013 news media coverage, which was based in part on Riccardo's June 24, 2013 statement, constitutes speech protected by the First Amendment. (Def. Mem. at 15.) Defendants argue that Riccardo's claim nonetheless fails because, as with his other retaliation claims, he cannot provide evidence of an adverse employment action or establish a causal connection between any alleged adverse employment action and his protected activity.
An adverse action for the purposes of a First Amendment retaliation case is "conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." Zelnik , 464 F.3d at 225 (internal quotation marks omitted) (quoting Washington v. County of Rockland , 373 F.3d 310, 320 (2d Cir. 2004) ). Under this "objective" standard, an adverse action must be more than "de minimis" to support a First Amendment retaliation claim. Id. at 226.
The only identified adverse action against Riccardo that post-dates June 27, 2013, is Principal Zanca's July 26, 2013 report and the resulting SCI investigation. As set forth previously, Plaintiffs have raised a triable issue of fact as to whether the investigation qualified as an adverse action. Regardless of whether Riccardo actually experienced negative consequences, a report portraying him as a drug addict who brought drugs in to school "may have resulted in substantial damage to [his] career." Kiernan v. Town of Southampton , 734 F. App'x 37, 42 (2d Cir. 2018) (summary judgment not granted on First Amendment retaliation claim where retaliatory conduct "materially surpassed empty threats" and included drafting of a criminal complaint); see also Zelnik , 464 F.3d at 225-26 ("adverse employment action" has a different meaning in the context of a First Amendment retaliation claim than it does in cases brought under Title VII" and a plaintiff need only show that that the retaliatory conduct would "deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights"). And, even if there were no such consequences, a reasonable juror could find that Principal Zanca's disparaging statements, if false, would reasonably deter an employee in Riccardo's situation from exercising his First Amendment rights.
Evidence of the requisite causal connection is also present. "To demonstrate a causal connection a plaintiff must show that the protected speech [or conduct] was a substantial motivating factor in the adverse [ ] action." Smith v. County of Suffolk , 776 F.3d 114, 118 (2d Cir. 2015) (internal quotation marks omitted) (quoting Cioffi v. Averill Park Central School District Board of Education , 444 F.3d 158, 167 (2d Cir. 2006) ). As described above, Riccardo has already met the more onerous causation standard under Title VII. Plaintiffs have therefore raised a triable issue of fact as to whether Riccardo's exercise of his First Amendment rights resulted in retaliation.
6. Riccardo's § 1983 Claims
a. The DOE's Liability Under § 1983
Defendants move for summary judgment on all of Riccardo's § 1983 retaliation claims asserted against DOE on the grounds that Plaintiffs cannot establish municipal liability. When a plaintiff seeks to recover against a municipality under § 1983, the plaintiff "must show that the violation of his constitutional rights resulted from a municipal policy or custom." Davis v. City of New York , 75 F. App'x 827, 829 (2d Cir. 2003) ; see also Monell v. Department of Social Services of the City of New York , 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (a municipality may not be sued under § 1983 unless "execution of [the] government's policy or custom ... inflicts the injury").
The Second Circuit has established a two-pronged test for claims brought against a municipality. First, the plaintiff must prove "the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving [official]." Johnson v. City of New York , No. 06 Civ. 9426, 2011 WL 666161, at *3 (S.D.N.Y. Feb. 15, 2011) (quoting Vippolis v. Village of Haverstraw , 768 F.2d 40, 44 (2d Cir. 1985) ). Second, the plaintiff must establish a causal connection between the policy or custom and the alleged deprivation of his constitutional rights. Id.
Municipal liability may also be found in situations where a municipal employee acted as "a final policymaker." Hurdle v. Board of Education of City of New York , 113 F. App'x 423, 425 (2d Cir. 2004). An official acts as a final policymaker if her decisions, "at the time they are made, for practical or legal reasons constitute the municipality's final decisions." Flanagan , 2015 WL 11142630, at *14 (quoting Rookard v. Health and Hospitals Corp. , 710 F.2d 41, 45 (2d Cir. 1983) ). This Court has already held that Principal Zanca was not the ultimate policymaker as to the decisions at issue in this case. See id. (holding that the Chancellor of the New York City Schools was the final policymaker as to the decision to terminate a teacher's probationary status). Neither party has argued that the Flanagan holding should not apply here.
Defendants have denied the existence of any relevant policy or custom. (Def. Mem. at 12-13.) Meanwhile, Plaintiffs have put forth no facts demonstrating the existence of a documented policy or a custom by the DOE, let alone sufficient facts to establish the existence of a causal connection between the policy and the alleged constitutional deprivations at issue. Accordingly, summary judgment dismissing the § 1983 claims should be granted because Plaintiffs have not offered evidentiary support for the Monell elements.
b. Superintendent Mendez's Liability Under § 1983
Defendants argue that Riccardo's § 1983 claims against Superintendent Mendez should be dismissed because the undisputed evidence demonstrates that the Superintendent was not personally involved in the alleged retaliation against Riccardo. Plaintiffs did not address Defendants' arguments. Despite Plaintiffs' inattention to this issue, the Court finds that the claims against Superintendent Mendez should not be dismissed.
"In order to overcome a government official's claim to qualified immunity and establish individual liability under § 1983, a plaintiff must show ... that the defendant ... personally violated a plaintiff's constitutional rights ...." Raspardo , 770 F.3d at 115 (internal quotation marks omitted) (first alteration in original) (quoting Back v. Hastings on Hudson Union Free School District , 365 F.3d 107, 117 (2d Cir. 2004) ). Personal involvement can be established by showing any one of several scenarios: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference by failing to act on information indicating that unconstitutional acts were occurring. Littlejohn , 795 F.3d at 314.
Plaintiffs provide supporting evidence of the second scenario described above. Specifically, there is record evidence that Superintendent Mendez, after being informed of Principal Zanca's discriminatory behavior prior to Riccardo's termination, failed to take adequate remedial steps.
The Superintendent testified that after receiving Riccardo's June 24, 2013 statement, he did his "due diligence" and asked three individuals who had worked with Principal Zanca in the past whether she had ever made discriminatory remarks in their presence. (Mendez Dep., Ex. I at 196-201.) They denied that she had. (Mendez Dep., Ex. I at 196-201.) The Superintendent also stated that when Principal Zanca was initially appointed, the DOE reviewed her history to see if there had been any complaints related to her and there had been none. (Mendez Dep., Ex. I at 196-97.)
Prior to receiving Riccardo's June 24, 2013 statement, the Superintendent testified that he received two complaints related to Principal Zanca. In the spring of 2013, Mendez received an oral complaint that Principal Zanca "was being too abrasive and inappropriate with the teachers." (Mendez Dep., Ex. I at 203-04.) And on June 14, 2013, Superintendent Mendez received a letter from some of the Pan American faculty expressing concern about turnover at the school. (Letter of the Faculty of Pan American International High School, Elmhurst, dated June 14, 2013, attached as Ex. 65 to Hayes-Deats Decl.) The letter claimed Principal Zanca had created an "abusive environment and culture of fear" at Pan American in which teachers were "punished, humiliated or belittled," and "arbitrary and financially unnecessary cuts" were made to the budget. Superintendent Mendez admitted that he did not investigate either of these claims. (Mendez Dep., Ex. I at 164-65.) Neither complaint, however, contained allegations of discrimination.
But without even inquiring into Riccardo's allegations with any Pan American teachers or administrators, Mendez reached out to OEO's Executive Director, Santana, with an email stating that Riccardo's "allegations are manufactured and untrue[ ] [and] Principal Zanca is being characterized as a racist which she is not," and that Zanca "deserves our support." (Emails of Juan Mendez dated July 8, 2013, attached as part of Ex. 53 to Hayes-Deats Decl.) Further, there is evidence that Superintendent Mendez signed off on Riccardo's discontinuance before he had the opportunity to receive Riccardo's written response. (Email of Juan Mendez dated July 3, 2013, attached as part of Ex. 53 to Hayes-Deats Decl.)
Based on these facts, a reasonable juror could find that Superintendent Mendez conducted a cursory investigation, sought to influence the outcome of the investigation, and therefore was personally involved in the violation of Riccardo's constitutional rights. See Lewis v. Roosevelt Island Operating Corp. , 246 F. Supp. 3d 979, 993 (S.D.N.Y. 2017) (board members' failure to take any steps to remedy discriminatory behavior qualified as personal involvement).
E. Enforcement of Riccardo's Stipulated Release
Defendants argue that Riccardo's claims are barred in full by the stipulation he signed agreeing to resign from the DOE effective August 25, 2013. (Def. 56.1 ¶ 312; Stipulation ¶ 1.) The stipulation provided that Riccardo would irrevocably resign from his position as Assistant Principal and would not pursue another position with the DOE. In exchange, Principal Zanca would issue him a "satisfactory" rating for the 2012-13 school year. (Stipulation ¶¶ 1-3.) The stipulation also stated that Riccardo "waives all claims against the Chancellor, the Principal, the Department of Education or any of its agents or employers in any administrative, judicial or other forum arising out of the unique and particular facts of this matter ... [and] shall have no precedential force or effect"." (Stipulation ¶¶ 5-6.) It was signed by Riccardo on August 28, 2013, Superintendent Mendez on October 7, 2013, Principal Zanca on October 18, 2013, and CSA Grievance Director Robert Reich on October 18, 2013. The Court finds that there are genuine disputes of material fact as to whether Riccardo's waiver of his claims here was knowing and voluntary, and as to whether the waiver even applies to these claims.
Riccardo also appears to argue that the stipulation was void on the grounds of duress. Since Defendants' motion is being denied, it is not necessary for the Court to address these remaining arguments. And because the Court finds disputed material facts regarding validity and applicability of waiver, however, it is not necessary for the Court to determine whether the stipulation released the claims the United States brings against Defendants on Riccardo's behalf.
1. Release of Riccardo's Federal Claims
"The essential inquiry in determining the validity of a release of a claim brought pursuant to the federal civil rights statutes ... is whether, considering the ‘totality of the circumstances,’ the individual's waiver of his or her right can be characterized as ‘knowing and voluntary.’ " Laramee v. Jewish Guild for the Blind , 72 F. Supp. 2d 357, 359 (S.D.N.Y. 1999) (quoting Bormann v. AT & T Communications, Inc. , 875 F.2d 399, 402-03 (2d Cir. 1989) ). Among the factors to be considered are:
(1) the plaintiff's education and business experience, (2) the amount of time the plaintiff had possession of or access to the agreement before signing it, (3) the role of plaintiff in deciding the terms of the agreement, (4) the clarity of the agreement, (5) whether the plaintiff was
represented by or consulted with an attorney, [ ] (6) whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law ..., [and] (7) whether an employer encourages or discourages an employee to consult an attorney.
Bormann , 875 F.2d at 403. This seven-factor-totality of the circumstances analysis demands a "peculiarly fact-sensitive inquiry." Livingston v. Adirondack Beverage Co. , 141 F.3d 434, 437-38 (2d Cir. 1998). None of the factors is individually dispositive, nor must all the factors be satisfied. See Laramee , 72 F. Supp. 2d at 360.
Defendants correctly point to evidence that supports a finding of knowing and voluntary waiver. For instance, Riccardo's education and business experience, a bachelor's degree and seven years of employment for the DOE, in the capacity as teacher and assistant principal (Riccardo Dep., attached as Ex. E at 16-17; Riccardo Dep. attached as Ex. D to Dandridge Decl., at 5-6), supports the proposition that he was fully capable of understanding the stipulation's terms. See, e.g., Williams v. Department of Education , No. 16 Civ. 980, 2016 WL 4574928, at *4 (S.D.N.Y. 2016) (tenured teacher with substantial experience who worked as a teacher for more than twenty years knowingly and voluntarily released claims); Kramer v. Vendome Group LLC , No. 11 Civ. 5245, 2012 WL 4841310, at *3 (S.D.N.Y. Oct. 4, 2012) (plaintiff had "sufficient intelligence, ability, and experience to be capable of understanding the [r]elease" where she had worked as an editor at a publication company for four years); Bachiller v. Turn On Products, Inc. , No. 00 Civ. 8701, 2003 WL 1878416, at *4 (S.D.N.Y. April 14, 2003), aff'd , 86 F. App'x 465 (2d Cir. 2004) (plaintiff with high school equivalency diploma who served as accounts payable clerk knowingly and voluntarily released claims).
Similarly, there is evidence that Riccardo had sufficient time to review the agreement, as he reviewed a draft agreement containing essentially identical terms more than two weeks before he signed the stipulation. (Def. 56.1 ¶ 302; Riccardo Dep., Ex. E at 203-07.) Courts in this district have found shorter periods of time were sufficient to weigh in favor of an agreement's validity. See Mandavia v. Columbia University , No. 12 Civ. 2188, 2013 WL 2391695, at *7 (S.D.N.Y. June 3, 2013) ("Plaintiff's sporadic opportunities to review the terms of the Agreement during the two-week negotiation period, and the several hours afforded to him the day that he signed, are sufficient ...."); Cordoba v. Beau Dietl & Associates , No. 02 Civ. 4951, 2003 WL 22902266, at *5 (S.D.N.Y. Dec. 8, 2003) (four days was "sufficient for [plaintiff] to acquaint herself with the [r]elease's terms and make a considered decision").
There is disputed evidence, however, as to the third Bormann factor – the role of Riccardo in deciding the terms of the agreement. Riccardo claims that the terms of the stipulation were "dictated by his union" (Plaintiff's Memorandum in Opposition to Motion for Summary Judgment ("Pl. Riccardo Mem.") at 8 ), while Defendants argue that Riccardo played an "instrumental" role in "deciding the terms of the agreement" (Def. Mem. at 9). Riccardo testified that he was "on an island" because he felt the union supported Principal Zanca and that he "basically went with what they gave [him]." (Riccardo Dep., attached as Ex. E at 206.) On the other hand, the record shows that Riccardo provided the draft of the release to Superintendent Mendez and subsequently amended one of the stipulation's terms, thereby demonstrating his active role in the negotiation process. See, e.g., Miller v. New York City Department of Education , 71 F. Supp. 3d 376, 382 (S.D.N.Y. 2014) (factor satisfied where plaintiff was able to alter the otherwise standard language of the waiver); Russomanno v. Murphy , Nos. 09 Civ. 8804, 09 Civ. 8806, 2011 WL 609878, at *4 (S.D.N.Y. Feb. 16, 2011) (plaintiff had "significant role" in deciding the terms of a release where he negotiated for higher severance pay).
This memorandum was filed in the action entitled Riccardo v. New York City Department of Education , 16 Civ. 4891.
The parties have devoted substantial argument as to whether the fourth Bormann factor, the clarity of the agreement, weighs in favor of waiver. (Def. Mem. at 9-13; Pl. Mem. at 32-34.) Plaintiffs argue that the language of the stipulation is ambiguous and vague, and that the contemporaneous behavior of the signatories does not support the DOE's claim that the stipulation "clearly relate[s]" to Riccardo's claims of race discrimination and retaliation. (Pl. Mem. at 33.) There is evidence in the record supporting both contentions.
Courts will uphold general releases that expressly and clearly release all legal claims. For instance, in Smith v. JPMorgan Chase , the court enforced a release that explicitly released "all existing claims, whether known or unknown, including, but not limited to, claims for age discrimination" under the federal discrimination statute. No. 15 Civ. 808, 2016 WL 5339548, at *7 (S.D.N.Y. 2016) ; see also Charlery v. Department of Education of City of New York , No. 15 Civ. 7994, 2017 WL 2124447, at *3 (S.D.N.Y. May 15, 2017) (enforcing release where plaintiff released the City of New York and its agencies "from any and all claims, causes of actions, suits," and other liability that "occurred through the date" of the release); Kramer , 2012 WL 4841310, at *4 (release was clear and unambiguous where it stated that plaintiff would "waive and release all claims or charges that plaintiff has or might have against defendant, including claims for discrimination arising under the ADA" (alteration marks omitted)).
By comparison, in Reidy v. Runyon , the court denied summary judgment where the release applied to "all issues germane to this case" but was also "non-precedent setting," finding that the plaintiff could reasonably have believed that the release did not apply to the claims raised in her federal action. 971 F. Supp. 760, 765-66 (E.D.N.Y. 1997) ; see also Beebe v. New York Times Co. , 666 F. Supp. 2d 321 (E.D.N.Y. 2009) (denying summary judgment where release stated that the settlement was "without precedent to any other claim or grievance of a similar nature"). The stipulation here is similar to the waiver at issue in Reidy. The stipulation only waives those claims "arising out of the unique and particular facts of this matter" and is described as having "no precedential force or effect." (Stipulation ¶¶ 5-6.) This language injects a "level of ambiguity as to the scope of the waiver[ ]," Beebe , 666 F. Supp. 2d at 321, suggesting that it may be limited to the circumstances of Riccardo's rating and not any federal claims.
Defendants rely upon Miller v. New York City Department of Education to support their interpretation of the waiver. In that case, plaintiff signed a stipulation waiving all "rights to make any legal or equitable claims ... relating to or arising out of this matter." 71 F. Supp. 3d 376, 380 (S.D.N.Y. 2014), aff'd , 622 F. App'x 38 (2d Cir. 2015). The court found that the scope of the waiver encompassed plaintiff's claims, which were his complaints, protests, and insubordination, that arose as a response to, and prompted, discrimination and retaliation. Id. The release in Miller , however, is couched in terms more like the cases finding a release to be generally and widely applicable. It did not contain qualifying language such as the release in Reidy or the stipulation here, about being "non-precedential" and being limited to the "unique and particular facts."
The parties' contemporaneous behavior also does not support a definitive reading of the release. Superintendent Mendez testified that it was his understanding that the stipulation applied to all litigation with the DOE and its officers, while Principal Zanca testified that she was not sure what the disputed provision referred to. (Mendez Dep., Ex. 16 at 285-90; Zanca Dep., Ex. 9 at 220-21.) Meanwhile, Riccardo continued to pursue his retaliation claims even after he signed the stipulation, suggesting he understood the stipulation as being limited. As a result, a reasonable jury could find that Riccardo's claims are outside the scope of the release.
The fifth factor focuses on whether Riccardo was represented by or consulted with an attorney prior to signing the stipulation. "[T]he general rule is that union representation satisfies the fifth Bormann factor." Mandavia v. Columbia University , No. 12 Civ. 2188, 2013 WL 2391695, at *9 (S.D.N.Y. June 3, 2013) (internal quotation and alternation marks omitted) (quoting Khadaroo v. New York Presbyterian Hospital , No. 10 Civ. 1237, 2012 WL 893180, at *5 (S.D.N.Y. March 15, 2012) ). Defendants argue that Riccardo was adequately represented because he was in contact with two union representatives and had the opportunity to seek additional legal representation. (Def. Mem. at 10.) The stipulation is vague on this matter, stating only that Riccardo "has been fully and fairly represented by the Union and/or had the opportunity to seek legal counsel throughout this process, and that [he] enters into this Stipulation of his own free will." (Stipulation ¶ 7.) Furthermore, Riccardo claims that the union was conflicted by its representation of him and Principal Zanca, and in reality, was not truly representing him. (Riccardo Dep., Ex. E at 205-06.) Riccardo also testified that he contacted a lawyer around the time that the stipulation was signed but stated that the attorney "didn't want to take my case or anything. He didn't want to have anything to do with it." (Riccardo Dep., Ex. E at 206.) Riccardo did not testify that the substance of the stipulation was discussed. There are therefore genuine disputes at issue regarding the fifth Bormann factor.
Finally, a genuine dispute of fact concerning the sixth factor – whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law – weighs against finding a waiver on summary judgment. While Defendants point to the change in Riccardo's "unsatisfactory" rating and his ability to rescind his discontinuance without going through an appeals process, Riccardo argues that both his "unsatisfactory" rating and his discontinuance were not actually reversed and, regardless, if they were reversed, they were not changed in a timely fashion and therefore do not qualify as consideration. (See Stipulation ¶ 3; Mendez Dep., Ex. 16 at 281-83; Riccardo Dep., Ex. E. at 210-11.) Notably, Riccardo signed the stipulation on August 28, 2013, but the remaining signatories did not sign the stipulation until months later, so the document was not fully executed until October 30, 2013, well after the school year began, thereby potentially impacting Riccardo's ability to find a position within another school district. (Stipulation at 2.) Riccardo testified that he was not "even sure it was in effect" and when he signed it he "thought it would be something that would happen relatively quickly." (Riccardo Dep., Ex. E. at 210-11.)
Plaintiffs also argue that the Defendants' failure to fulfill their obligations under the stipulation constituted a material breach of the agreement and therefore qualified as grounds for rescission or release from its obligations. (Pl. Riccardo Mem. at 8-9; Pl. Sur-Reply at 4-5.) Since Defendants' motion is being denied on the basis of disputed facts concerning the applicability of the stipulation to Riccardo's claims, it is not necessary at this juncture for the Court to consider whether Defendants breached the stipulation.
Defendants have not provided any evidence demonstrating that Riccardo's annual rating was reversed contemporaneously with the stipulation's execution. They refer solely to an exhibit submitted by a DOE Human Resources employee, but that exhibit shows only that Riccardo now has an S rating for the 2012-13 school year. (Rating History for Instructional Staff, attached as Ex. A to Declaration of Charles Peeples dated Aug. 31, 2016.) That exhibit appears to show that the "FINAL APRV DTE" was June 30, 2013, but, as noted above, there is a host of evidence showing that Riccardo's rating was not "satisfactory" at the time the stipulation was executed. It is therefore not clear whether the exhibit's date shows a retroactive change. There is a genuine dispute as to the sixth factor, further militating against summary judgment.
This exhibit was submitted in Riccardo v. New York City Department of Education , 16 Civ. 4891 in conjunction with a motion to dismiss.
In sum, while there is evidence supporting Defendants' argument as to the scope and validity of the release, there is also evidence to the contrary, not the least of which is the stipulation's ambiguous wording. Accordingly, a reasonable juror could find that Riccardo did not knowingly and voluntarily waive his federal claims.
2. Release of Riccardo's State and Local Law Claims
Under New York law, "a release that is clear and unambiguous on its face and which is knowingly and voluntarily entered into" may bar employment discrimination claims arising under New York state and local anti-discrimination laws. Johnston v. Carnegie Corp. of New York , No. 10 Civ. 1681, 2011 WL 1085033, at *7 (S.D.N.Y. Feb. 24, 2011) (quoting Pampillonia v. RJR Nabisco, Inc. , 138 F.3d 459, 463 (2d Cir. 1998) ). For the reasons articulated above, the plain language of the stipulation is ambiguous as to its scope. Accordingly, Defendants' motion for summary judgment on Riccardo's state and city law claims based upon an enforceable release should be denied.
F. Pattern or Practice of Discrimination in Violation of Title VII
The United States claims that the DOE engaged in a pattern or practice of discrimination and retaliation based on race in the hiring, retention, and employment conditions of teachers at Pan American in violation of Title VII. (Complaint ¶¶ 51-52.) Defendants argue that this claim must be dismissed on summary judgment because the United States cannot meet their prima facie burden. The record shows otherwise.
1. Legal Standard
To succeed on a pattern-or-practice claim, plaintiffs must "prove more than sporadic acts of discrimination; rather they must establish that intentional discrimination was the defendant's ‘standard operating procedure.’ " Robinson v. Metro-North Commuter R.R. Co. , 267 F.3d 147, 158 (2d Cir. 2001) (quoting International Brotherhood of Teamsters v. United States (Teamsters) , 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) ), abrogated on other grounds by Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). In disparate treatment cases such as this one, plaintiffs must present sufficient evidence to meet their prima facie burden by showing that defendants had a policy, pattern, or practice of intentionally discriminating against a protected group. Id. Plaintiffs typically rely on two types of evidence: "(1) statistical evidence aimed at establishing the defendant's past treatment of the protected group, and (2) testimony from protected class members detailing specific instances of discrimination." Id. (quoting 1 Arthur Larson et al., Employment Discrimination , § 9.03[1], at 9-18 (2d ed. 2001)).
If the plaintiffs satisfy the prima facie requirement, "[t]he burden [of production] then shifts to the employer to defeat [it] ... by demonstrating that the [plaintiffs'] proof is either inaccurate or insignificant." Id. at 159 (alterations in original) (quoting Teamsters , 431 U.S. at 360, 97 S.Ct. 1843 ). "Once the defendant introduces evidence satisfying this burden of production, the trier of fact then must consider the evidence introduced by both sides to determine whether the plaintiffs have established by a preponderance of the evidence that the defendant engaged in a pattern or practice of intentional discrimination." Id. If the plaintiff successfully establishes the existence of a "pattern or practice" of discrimination, a court may, at a later date, fashion class wide injunctive relief. Id. The evidence before the Court raises genuine issues of material fact as to whether Defendants engaged in a pattern or practice of discrimination and retaliation.
2. Government's Proof of Discrimination
First, the United States presents evidence that Principal Zanca took adverse actions against every African-American teacher at Pan American and retaliated against Riccardo when he opposed her treatment of them. The United States claims that afterwards, the DOE failed to meaningfully investigate the charges levied against Principal Zanca, while Supervisor Mendez actually interfered with OEO's investigation on Principal Zanca's behalf, thereby ratifying her misconduct. (Pl. Mem. at 28.) Defendants argue that the acts alleged here are only sporadic or isolated acts of discrimination and do not demonstrate a pattern or practice of discrimination and retaliation. (Def. Reply USA Mem. at 2.)
Defendants initially argued that in order to bring this claim, the United States was required to provide statistical evidence relating to the DOE's employment practices throughout all thirty-two districts. At oral argument, however, Defendants abandoned this argument. In any event, the United States is correct that suits may be brought against subsets of organizations. See, e.g., United States v. City of New York , 713 F. Supp. 2d 300, 322-24 (S.D.N.Y. 2010) (claims successfully brought against the Department of Transportation in connection with their discriminatory hiring practices within the Bridge Painter Section).
Of the eight probationary teachers evaluated by Principal Zanca at the end of the 2012-13 school year, only Flanagan and Hightower were discontinued, while the non-African-American teachers either were given tenure or had their probationary period extended. (Def. 56.1 ¶¶ 131-133, 135.) After facing hostility and budget cuts, James transferred to another school. Therefore, as a result of Principal Zanca's purported actions, there were no African-American teachers at Pan American at the end of the 2012-13 school year.
The United States argues that this so-called "inexorable zero" constitutes relevant statistical evidence. The "inexorable zero" is used to infer discrimination when there are zero employees of the protected class in the workplace. See, e.g., City of New York , 713 F. Supp. 2d at 317-18 ("inexorable zero" raised inference of discrimination where no women had ever been employed by the DOT's bricklayer unit); Loyd v. Phillips Bros., Inc. , 25 F.3d 518, 524 n.4 (7th Cir. 1994) ("For instance, the 100% sex-segregated workforce is highly suspicious and is sometimes alone sufficient to support judgment for the plaintiff."). The term is properly used in scenarios where no members of the protected class were employed in the relevant time period. See, e.g., E.E.O.C. v. Mavis Discount Tire, Inc. , 129 F. Supp. 3d 90, 111-12 (S.D.N.Y. 2015) (finding that the requirements of a prima facie case were met, but declining to apply the "inexorable zero" where defendants hired one member of the protected class). That is not the case, here however, because Pan American employed African-American employees during the relevant class period. That said, the fact that Principal Zanca's approach led to the termination or transfer of all the African-American teachers at Pan American is still highly relevant.
Second, the United States relies upon the anecdotal evidence of discrimination described and discussed earlier at length. Multiple witnesses testified that Principal Zanca made derogatory racial remarks, which included references to "dark-skinned individuals" as "gorillas" or "monkeys." (Riccardo Statement at 1-2; Fonseca Dep. at 73-74; Gonzalez Dep. at 14, 19-21, 40, 98.) Likewise, the United States points to evidence that Principal Zanca campaigned to terminate Flanagan and Hightower through predetermined and pretextual "unsatisfactory" ratings and worked to diminish James' prestigious theater program. (Riccardo Statement at 1-2.) And when Riccardo sought to oppose her tactics, there is evidence that Principal Zanca retaliated against him through disciplinary measures, termination, and criminal allegations. (Riccardo Statement at 1-2.)
There is also some evidence that the safeguards intended to identify and correct discriminatory actions failed. For example, as explained previously, there is evidence that Superintendent Mendez ignored credible allegations from Pan American faculty members and worked to undermine the OEO's investigation, and that the OEO investigators failed to follow their own internal policies or conduct a robust investigation. (Emails attached as Ex. 53 to Hayes-Deats Decl.; Wade Dep. at 51-52.) The United States depicts the OEO investigation as being intentionally designed to discredit Riccardo while avoiding questions that would further implicate Principal Zanca. For instance, the United States points to the fact that during his OEO interview, Riccardo stated that Principal Zanca had made derogatory remarks about students who were from the Dominican Republic and instructed him to limit their enrollment. (OEO Mem. at USA0737-38.) The OEO did not investigate these allegations or refer them to the SCI, even though the OEO investigator testified that it was OEO's policy to do so. (Wade Dep. at 51-52.)
In light of the United States' extensive anecdotal evidence and the fact that this evidence concerns every single African-American teacher at Pan American during the 2012-13 school year, a reasonable jury could find that the United States has met its prima facie burden to show a pattern or practice of discrimination.
3. Legitimate Non-Discriminatory Reasons
Because the United States has met its burden of producing evidence to support its prima facie case, Defendants must put forth evidence demonstrating that Plaintiffs' proof is either inaccurate or insignificant. Robinson , 267 F.3d at 159.
Defendants argue primarily that the United States failed to proffer the required statistical evidence. They point to the fact that Hightower was replaced as an Earth Science teacher for the 2013-14 school year by Rax-Anne Miller, an African American, who was rated "effective" for that year. (Zanca Decl. ¶ 28.) Principal Zanca also hired Earl Johnson III, who is African American, for the position of Global History teacher. (Zanca Decl. ¶¶ 29-30.) Both teachers remained at Pan American for the duration of Principal Zanca's tenure. (Zanca Decl. ¶¶ 28-30.) This evidence supports Defendants' rebuttal to the United States' prima facie case.
The DOE switched to the "Danielson" rating system in 2014, which does not have "unsatisfactory" and "satisfactory" ratings. (Zanca Decl. ¶ 27.)
As to the anecdotal evidence, Defendants argue that the testimony showed that Principal Zanca "made disparaging comments about persons of many races as well as overweight people" and therefore any derogatory remarks were simply "isolated discriminatory comments about persons of several races." (Def. Reply USA Mem. at 5.) This argument is unavailing. Discriminatory animus should not be excused merely because an individual's statements target multiple protected groups. Defendants' argument that Principal Zanca's treatment of James was not discriminatory because James did not receive "unsatisfactory" ratings is also unavailing, for the reasons articulated above.
Defendants also appear to mistakenly argue that James' per-session hours were only reduced from eighteen to twelve, as opposed to four. (Def. 56.1 ¶ 196.)
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Despite the weakness of certain of Defendants' arguments, the fact that the overall number of African-American teachers at Pan American only decreased from three to two from 2012-2013 to 2013-2014 is evidence supporting Defendants' rebuttal and is sufficient to next consider the final step of the analysis.
4. Totality of the Evidence
Since both sides have provided evidence to meet their burdens of production, the Court must evaluate the totality of evidence to determine whether there is a dispute of material fact as to a pattern or practice of discrimination. See Robinson , 267 F.3d at 159.
i. The Relevant Time Period
At oral argument, Defendants argued that the time period at issue – a single school year – was not sufficient to meet the requirements of a pattern and practice claim. Defendants, however, have not cited to any statute or provided any case law to support this argument. While the Court acknowledges that the relevant time period in this case is shorter than time periods in other similar cases, this is not sufficient grounds for summary judgment. Plaintiffs are correct that here, unlike in many comparable cases, the individual plaintiffs were quick to bring suit, thereby potentially limiting the window of time in which Pan American operated in a discriminatory manner.
ii. Statistical and Anecdotal Evidence
Plaintiffs' cases alleging a pattern or practice of discrimination are typically characterized by a "heavy reliance on statistical evidence." Reynolds v. Barrett , 685 F.3d 193, 203 (2d Cir. 2012) (quoting Robinson , 267 F.3d at 158 n.5 ); see also E.E.O.C. v. Bloomberg L.P. , 778 F. Supp. 2d 458, 470 (S.D.N.Y. 2011) ("The case law is weighty in favor of defendants in pattern or practice cases where plaintiffs present only anecdotal evidence and no statistical evidence.") (collecting cases), but see E.E.O.C. , 778 F. Supp. 2d at 471 ("[F]ailure to present any statistical evidence [in a pattern or practice case] means that the [plaintiff]'s anecdotal and other evidence ‘must be correspondingly stronger ... to meet [its] burden.’ ") (fourth and fifth alterations in original) (quoting In re Xerox , 850 F. Supp. 1079, 1085 (W.D.N.Y. 1994) ).
Courts have recognized, however, that in certain cases, statistical evidence may be either unavailable or meaningless. See City of New York , 713 F. Supp. 2d at 317 ("While most pattern-or-practice claims are proven through the use of statistics, ‘when there is a small number of employees, anecdotal evidence alone can suffice.’ ") (quoting Sidor v. Reno , No. 95 Civ. 9588, 1997 WL 582846, at *10 (S.D.N.Y. Sept. 19, 1997) ); Robinson , 267 F.3d at 158 (testimony detailing "specific instances of discrimination" may be sufficient to establish the existence of a policy, pattern, or practice of intentional discrimination). Here, neither party has conducted a statistical analysis of Pan American's employees – presumably because of the relatively small number of total employees.
Accordingly, the United States' case rests on the strength of its anecdotal evidence. They offer evidence that Pan American subjected all three of its African-American teachers to discriminatory treatment. They also put forth evidence that Flanagan and Hightower were assessed using predetermined, pretextual evaluations, the result being that they were the only probationary teachers to receive recommendations for discontinuance. (Def. 56.1 ¶ 135.) As a tenured teacher, James was not subject to the same review system, but there is evidence that under Principal Zanca's leadership, Pan American essentially gutted her theater program, compelling her transfer from the school. (Def. 56.1 ¶ 26; 4/8/13 Zanca Letter; James Dep., Ex. 24 at 170-71.)
The fact that Principal Zanca hired two African-American teachers for the following school year may reasonably be interpreted as evidence that she was never motivated by discriminatory animus. It could also reasonably be interpreted as an attempt to cover up prior, discriminatory behavior. Regardless, it does not foreclose a claim of school-wide pattern or practice based on Defendants' actions in the 2012-13 school year.
As described throughout this opinion, the evidence underlying the United States' pattern or practice claim implicates varied questions of material fact, making summary judgment on this claim inappropriate.
Conclusion
For the foregoing reasons, I recommend that Defendants' motion for summary judgment should be DENIED with respect to Hightower's and James' disparate treatment claims pursuant to Title VII, 42 U.S.C. § 1981, and the NYSHRL; James' hostile work environment claims; Riccardo's Title VII retaliation claims against the Department of Education; Riccardo's NYSHRL and NYCHRL retaliation claims against Principal Zanca; Riccardo's § 1983 claims against Principal Zanca and Superintendent Mendez; and the United States' pattern and practice claims and Title VII claims brought on behalf of Riccardo, Hightower and James. Defendants' motion for summary judgment should be GRANTED with respect to: James' and Hightower's retaliation claims; all aiding and abetting claims; and Riccardo's § 1983 claims against the Department of Education. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
Dated: August 7, 2018