Opinion
05 Civ. 2803 (RLC).
March 28, 2007
Gary Stuart Fish, New York, NY.
Issac Klepfish, NYC Law Dept. Off. of the Corporation Counsel (Bklyn), Brooklyn, NY.
OPINION
Plaintiff Charles Heyer ("Plaintiff"), an African American male of Dominican origin and a former Family Assistant employed by the New York City Department of Education ("DOE"), filed a complaint on March 11, 2005 pursuant to 42 U.S.C. § 1983 alleging that defendants DOE, The City of New York, Principal Edward DeMeo ("DeMeo") and Assistant Principal Luis Landivar ("Landivar") of Jacqueline Kennedy Onassis High School ("JKOHS") (collectively the "Defendants") discriminated against him and subjected him to a hostile work environment and wrongfully terminated him based on his race and country of national origin. In addition, Plaintiff alleges that evidence exists that defendant DOE implemented a "punch out" policy in 2003, also known as Progressive Discipline, that had a disparate impact on Dominican employees. On July 6, 2006, Defendants filed a motion for summary judgment on the Plaintiff's claims.
As a Family Assistant, Plaintiff's job required him to make home visits to address truancy problems at JKOHS. Plaintiff alleges that he was asked to perform tasks, outside of his job description, because of his race and ethnicity. Plaintiff also alleges that his workspace was confiscated by defendant DeMeo and garbage dumped on Plaintiff's desk, leaving him without his own desk and computer to perform his assignments. This change in Heyer's workspace occurred shortly after DeMeo purportedly stated that he was Italian and that he should not be "messed with" to Plaintiff. Heyer took this comment to mean that anyone of a different ethnicity from DeMeo was subservient to him.
Plaintiff is referred to as a Family Assistant in Defendants' papers and a Family Worker in the Plaintiff's papers. The job description pertaining to Family Worker is as follows:
Under the supervision of the teacher or Project Coordinator, visits homes of, meets with, and encourages parents to participate in school life, identifies special family needs, consults with Social Worker regarding referrals of family, and accompanies family on visits to public and private agencies, assists with recruitment and registration of children; checks on absentees by visiting homes; escorts children to and from school; assists teacher in classroom when necessary; performs related work. (Defs.' Ex. I).
The job description pertaining to Family Assistant is as follows:
Under the supervision of the teacher or Project Coordinator, works as liason between family, public agencies, and school; assists families with special problems or emergency needs in housing, income, health, and education; consults with special problems; maintains a list of local agencies that can offer assistance to families and individuals; performs related work. (Defs.' Ex. I).
In addition, in September 2003, Heyer was told to "punch out," meaning that he would not get paid for a full-day of work, because he would not assist in fixing up classrooms. Heyer asserts that the school administrators had applied the "punch out policy" to three Dominican staff members, Plaintiff, Nilda Baez and Kenny Reyes. Plaintiff further asserts he had his work on a bulletin board criticized as being too "African" by defendant Landivar. Heyer alleges that Landivar made a statement that all blacks are the same. Plaintiff further alleges that defendant Landivar harassed students and staff at JKOHS based on their race. Lastly, that these acts were committed by these individual defendants within the scope of their agency, employment and/or authority on behalf of defendant DOE and the City of New York.
According to Defendants, Plaintiff was terminated because he engaged in numerous acts of misconduct, including insubordination, failing to follow the directives of supervisors and engaging in several acts of threatening behavior towards his supervisors. Also that Plaintiff did not need his own computer, phone and office because his primary task was to perform home visits. Heyer was assigned a cubicle and had access to a phone and computer.
Specifically, Defendants allege, on September 20, 2004, that Plaintiff engaged in unacceptable conduct by being insubordinate to Landivar. Plaintiff received a letter dated September 20, 2004 noting the insubordinate conduct. (Defs.' Ex. F). According to the letter, Heyer was asked to recover seven lost boxes from the Guidance office. He responded "I am not a trash picker." Heyer said he would only do what his contract required of him. Despite his comments, Heyer says that he did look for the boxes. Again, according to the letter, he returned to Landivar fifteen minutes later very agitated and screamed "These are $200 pants! You will pay for these! I get paint on my pants. These are $200 pants!" Heyer stated to Landivar, "I will never do anything beyond my contract. Do not ask . . ." Heyer denies being insubordinate. Plaintiff viewed looking through garbage for lost boxes as custodial work and not a part of his job as a Family Assistant. Heyer admits that he was upset when he did look for the boxes and damaged his pants. Plaintiff asserts that Landivar asked Heyer and Nilda Baez, another Dominican worker to help locate the boxes, without asking on-staff custodians to look for the boxes.
In a letter dated September 30, 2004, Principal DeMeo advised Plaintiff that he was summoned to a disciplinary on October 4, 2004 in connection with the incident involving Landivar. (Defs.' Ex. H). At the disciplinary hearing Heyer's alleged misconduct was discussed. Plaintiff denies the claims of misconduct and that he did not properly perform his duties. In a letter dated October 12, 2004, Mary-Anne Garcia, Assistant Principal of Pupil Personnel Services, reiterated to plaintiff the instructions as to the proper performance of his duties. (Defs.' Ex. J). In a letter dated November 15, 2004 Assistant Principal Garcia stated that Plaintiff improperly performed and continued to be disrespectful and acting inappropriately towards his supervisors. (Defs.' Ex. K).
Defendants claim that on January 13, 2005, Heyer refused to translate a parent's statement from Spanish to English when asked to do so by Assistant Principal Garcia. Heyer said he did not feel comfortable translating because he was not a professional translator and that he did not see translation as being part of his duties as Family Assistant. In addition, according to Heyer, there is no written document requiring a Family Assistant to be bilingual.
In mid January 2005, Plaintiff admits that he did identify himself as a truant officer to parents in order to get them to open their doors to speak with him. He claims that he was provided with a truant-officer identification card by the DOE. In addition to the issues of Heyer misidentifying himself, on January 15, 2005, Defendants also allege that Heyer was assigned to do four home visits in Staten Island but only performed one home visit. As a result of the failure to properly perform home visits and his refusal to translate a parental statement for Assistant Principal Garcia, Plaintiff was summoned to a meeting with Landivar on January 21, 2005.
According to a letter dated January 21, 2005 describing the contents of the meeting, Heyer at the meeting refused to meet with Landivar without his DC-37 Representative. (Defs.' Ex. N). In the letter, Heyer is quoted as stating that he did not stop in Staten Island to eat during his home visit because, "there is a racist problem there" and "It is a strange place." Heyer stated, according to the letter, that "I do not have the skills to make translations and it is not my job!" Landivar also states in the letter that he was interrupted several times by Heyer, who was agitated and irate during the meeting.
On January 21, 2005, Iris Nunez, the parent coordinator at JKOHS, reported that Plaintiff threatened DeMeo and Landivar in that he told her: "One of these days I am going to come in with a bat and beat them!!! They are playing with fire and they are going to get burned. You watch and see . . . I feel that Charles Heyer was serious when he said this . . ." (Defs.' Ex. M).
On January 24, 2005 DeMeo told Plaintiff he was being summoned to a disciplinary conference "to discuss allegations of insubordination and verbal threats." On January 31, 2005, the disciplinary conference was held with Plaintiff. Heyer is quoted in a letter dated February 15, 2005 as saying at the conference, "I am not fully bilingual and I cannot express myself in a way you can understand me. I want to take this to another level. The only purpose of this meeting is to find charges. I don't have the verbal skills to be understood." (Defs.' Ex. S).
Finally, on February 9, 2005, Assistant Principal Garcia noted another outburst by Plaintiff and on February 28, 2005, Plaintiff was summoned by Principal DeMeo to a disciplinary conference to "discuss allegations of inappropriate behavior and slander of Assistant Principal in the presence of school personnel and students." (Defs.' Ex. T). Upon reading DeMeo's February 28, 2005 letter, Plaintiff came into DeMeo's office but disputes that he engaged in serious misconduct and threatening behavior. DeMeo's February 28, 2005 Incident Report, (Defs.' Ex. U), states that Heyer said to DeMeo "You are a liar in what you say in this letter; you are a pig!" According to DeMeo, Heyer demanded to be terminated, "Fire me, terminate me, that is what you want all along anyway! Just give me a letter now; fire me!" Heyer denies making these statements. DeMeo asked Heyer to wait outside his office so he could compose a letter of termination. According to DeMeo, Heyer lunged at him over his desk and would not leave DeMeo's office saying, "No I don't leave, and you will have to call the police for me to leave; go ahead call the police." The police came and Heyer was informed that he was not to return to the school under any circumstances and if he did he would be arrested. DeMeo filed a complaint with the police over the incident. (Defs.' Ex. Y)
In a letter dated February 28, 2005, DeMeo advised Heyer of his termination from the job. (Defs.' Ex. Z).
II. The Standard for Summary Judgment
Summary judgment is appropriate where the parties' submissions demonstrate "that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." In addition, the "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." In evaluating a summary judgment motion, the court must resolve all ambiguities and draw all inferences in favor of the non-moving party. The party seeking summary judgment bears the initial burden of showing that no genuine issue of fact exists. Once such a showing is made, the opposing party must present "specific facts showing there is a genuine issue for trial." However, the non-moving party "may not rely on conclusory allegations or unsubstantiated speculation."
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id. at 255.
Celotex, 477 U.S. at 324.
Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
It is often difficult to apply summary judgment analysis in employment discrimination cases because they necessarily turn on the intent of the alleged discriminator, and plaintiffs will rarely uncover direct evidence of discriminatory intent. Nonetheless, a plaintiff must produce some evidence from which a reasonable inference of discrimination can be drawn. For a plaintiff to survive a motion for summary judgment in a discrimination case, he must do more than present "`conclusory allegations of discrimination,'" "he must offer `concrete particulars' to substantiate [his] claim."
Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-65 (2d Cir. 1989).
McLee v. Chrysler Corp., 109 F.3d 130, 134-35 (2d Cir. 1997).
Duprey v. Prudential Insur. Co. of America, 910 F. Supp. 879, 883 (N.D.N.Y. 1996) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)).
Id.
III. Discrimination Claims
Title VII prohibits an employer from discharging any individual "with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin." In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court set forth the burden-shifting framework under which Title VII discrimination claims are analyzed. Plaintiff's § 1983 claims are subject to the same burden-shifting analysis given the lack of direct evidence of discrimination.
Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir. 2000) (explaining state and city discrimination claims are subject to Title VII analysis). See Rumala v. New York City Transit Auth., No. 02 Civ. 3828, 2005 WL 2076596 *11 (E.D.N.Y. Aug. 26, 2005); Jessamy v. City of New Rochelle, 292 F. Supp. 2d 498, 511 n. 15 (stating Title VII and 1983 claims are analyzed under same standard) (citing Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) and Sorlucco v. N.Y. City Police Dep't, 888 F.2d 4, 7 (2d Cir. 1989)), those frameworks are cited and applied here.
Plaintiff has the initial burden of proving a prima facie case of discrimination. To do so, Plaintiff must demonstrate that: (1) they are a member of a protected class; (2) satisfactorily performed the duties of her position; (3) were subjected to an adverse employment action; and (4) the adverse action occurred in circumstances giving rise to an inference of discrimination.
McDonnell Douglas, 411 U.S. at 802.
Id.
If Plaintiff establishes a prima facie case, the burden shifts to Defendants and requires them to articulate a legitimate, non-discriminatory reason for the adverse employment action. Any non-discriminatory reason is sufficient. If Defendants succeed on their burden, the presumption of animus "drops out of the picture." Plaintiff then would have to show that Defendants' reason is mere pretext and that discrimination was the true motivating factor for the adverse employment action. The ultimate question is whether the record supports the rational inference that "more likely than not discrimination was the real reason" for the adverse action of which plaintiff complains.
Id. at 802-03.
Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir. 1997).
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993).
Id. at 507-08.
Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996).
IV. Prima Facie Case of Discrimination
Here, even if Heyer is able to make a prima facie case of discrimination, Heyer has not shown that Defendants' legitimate non-discriminatory reason for his termination was pretextual. Defendants have presented evidence that Heyer was volatile and threatening towards supervisors. Plaintiff's actions have gone beyond alleged day-to-day verbal confrontations between himself and his supervisors. They include the alleged verbal threat reported by Iris Nunez in which Heyer told her, "One of these days I am going to come in with a bat and beat them!!! They are playing with fire and they are going to get burned. You watch and see." There is also the incident between DeMeo and Heyer, prior to Heyer's termination, where police officers had to be called to the school in order to remove Heyer from DeMeo's office. The burden is now on Plaintiff to present evidence sufficient for a trier of fact to conclude that the employer's explanation for the employment decision is pretextual.
See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Demonstrating that the employer's proffered reason is unpersuasive, contrived, or false does not, in and of itself, prove that the reason was a pretext for discrimination. In addition, "[p]roof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Thus, the plaintiff's burden at this stage is to prove that "the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred." To determine the sufficiency of the plaintiff's evidence, the court should consider "`the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports [or undermines] the employer's case.'"
See Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133, 146-47 (2000).
Id. at 147 (citing St. Mary's Honor Center, 509 U.S. at 517).
James v. New York Racing Assoc., 233 F.3d 149, 156 (2d Cir. 2000); see also Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (holding that a court should examine the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff") (quotingReeves, 530 U.S. at 143).
James, 233 F.3d at 156 (quoting Reeves, 530 U.S. at 148-49).
In addition, on a summary judgment motion, Plaintiff must "come forward with at least some credible evidence that the actions of [Defendants] were motivated by racial animus or ill-will." Plaintiff's claim, however, is not supported by the evidence. The incident involving DeMeo where the police were summoned appears to be a major contributing factor to the cause of his termination. Additionally, there were a series of disciplinary actions taken on facially neutral grounds prior to his termination.
See Grillo v. N.Y. City Transit Auth., 291 F.3d 231, 234 (2d Cir. 2002).
Since Defendants have articulated a legitimate nondiscriminatory reason why Plaintiff was terminated, the burden then shifts back to Plaintiff to demonstrate that this reason was prextextual. Heyer argues that the non pretextual reasons given for his termination are undermined by racial and ethnic bias he alleges and has experienced at the hands of the Defendants. Plaintiff's argument is not supported by a review of the entire record. Accordingly, since Plaintiff has failed to raise a genuine issue of material fact as to whether his termination was actually a pretext for racial discrimination or discrimination based on his country of national origin, Defendants' motion for summary judgment on Plaintiff's discriminatory termination claim is granted.
V. Plaintiff's Discrimination Claims 1. Liability
Section 1983 furnishes a cause of action against a state actor for the violation of federal rights created by federal statutory rights. However, "to bring a successful claim under Section 1983, a plaintiff must show in the first instance that: `(1) the defendant acted under color of state law; and (2) as a result of the defendant's actions, the plaintiff suffered a denial of his federal statutory rights, or his constitutional rights or privileges.'"
Since the DOE and the City of New York is a governmental entity or subdivision, it can be sued under Section 1983, see New York Magazine v. Metropolitan Transit Auth., 987 F. Supp. 254, 260 (S.D.N.Y. 1997) (Scheindlin, J.) (citing Monell v. Dep't of Social Servs. of the City of New York, 436 U.S. 658, 690 (1978)).See also Dean v. New York Transit Auth., 297 F. Supp. 2d 549, 554 (E.D.N.Y. 2004) (citing Annis v. County of Westchester, 36 F.3d 251, 254 (2d Cir. 1994)).
Mack v. Port Auth., 225 F. Supp. 2d 376, 382 (S.D.N.Y. 2002) (Swain, J.) (quoting Emblen v. The Port Auth. of New York/New Jersey, No. 00 Civ. 8877(AGS), 2002 WL 498634, at *3 (S.D.N.Y. Mar. 29, 2002) (Schwartz, J.)).
Section 1983 does not provide a cause of action on the basis of respondeat superior. Thus, a municipal entity can only be held liable where the alleged constitutional violation against the Plaintiff "resulted from either a government custom, policy, pattern, or practice." Here, the "policy or custom used to anchor liability need not be contained in an explicitly adopted rule or regulation. So long as the discriminatory practices of city officials are persistent and widespread they could be so permanent and well settled as to constitute a custom or usage with the force of law, and thereby generate municipal liability." Nevertheless, "[a]n individual official's acts can rise to the level of `policy' when `senior personnel' knowingly `acquiesce' in their subordinates' behavior." Also, where an official who has final authority commits a discrete act, that act can be considered "policy" for the purposes of governmental liability.
See Monell, 436 U.S. 658 (§ 1983).
Dean, 297 F. Supp. 2d at 554 (citing Monell, 436 U.S. at 690-691).
Sorlucco, 971 F.2d 864, 870-71 (2d Cir. 1992) (internal quotation marks omitted).
Krulik v. Bd. of Educ. of New York City, 781 F.2d 15, 23 (2d Cir. 1986) (citing Turpin v. Mailet, 619 F.2d 196, 203 (2d Cir. 1980)).
Id.
Plaintiff has presented evidence that a "punch out" policy was implemented by Landivar that was applied to individuals of Dominican origin from which a reasonable trier of fact could conclude that the DOE or the City of New York had a policy or custom of discriminating against individuals of Dominican origin. The policy allows school administrators to order hourly employees to "punch out" if they refuse to conduct an assignment. Plaintiff argues that the punch out policy at JKOHS was used specifically against Dominican employees to force them to do custodial work (i.e. moving tables, setting up classrooms and searching through garbage) as well as other tasks outside of their contracted duties. Therefore, since Plaintiff has presented evidence of a potential discriminatory policy or custom, summary judgment is denied to the Defendants with respect to Plaintiff's municipal liability claim.
See, e.g., Mack, 225 F. Supp. 2d at 384 (holding that where the plaintiffs made only vague and conclusory allegations as to whether the defendant municipal agency had a policy or custom of discrimination, the agency was entitled to summary judgment on plaintiff's Section 1983 claims as a matter of law).
2. Hostile Work Environment
In order to survive a motion for summary judgment, "a plaintiff claiming he or she was the victim of an unlawful hostile work environment must elicit evidence from which a reasonable trier of fact could conclude `(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [his] work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer.'" However, "[s]imple teasing, offhand comments, or isolated incidents of offensive conduct (unless extremely serious) will not support a claim of discriminatory harassment." In fact, "[f]or racist comments, slurs, and jokes to constitute a hostile work environment, there must be . . . a steady barrage of opprobrious racial comments."
Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003) (quoting Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir. 1999)); see Harris v. Forklift Systems, 510 U.S. 17 (1993).
Petrosino v. Bell Atlantic, 385 F.3d 210, 223 (2d Cir. 2004);see also Rizzo-Puccio v. College Auxillary Services, et. al., No. 99 Civ. 9272, 2000 WL 777955 at *3 (2d Cir. Jun. 14, 2000) ("As a general matter . . . . . . isolated remarks or occasional episodes of harassment do not constitute a hostile work environment within the meaning of Title VII").
Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).
Taking the evidence in the light mostfavorable to Plaintiff, Heyer identifies several incidents to support his hostile work environment claim. They include, among other things, DeMeo's purported comment that he was not to be "messed with" as an Italian, the confiscation of Heyer's workspace shortly after DeMeo allegedly made this comment to him, Landivar's criticism of Heyer's work on a bulletin board as being too "African," as well as other alleged discriminatory remarks made against blacks in Heyer's presence. These alleged incidences sufficiently support Plaintiff's claim of hostile work environment, as these incidents reference Plaintiff's race or national origin, a rational trier of fact could conclude that these comments and actions were both individually and collectively sufficiently severe to have altered the conditions of, or that discrimination was pervasive in, his working environment. Accordingly, Defendants' motion for summary judgment on Plaintiff's hostile work environment claim is denied.
See Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002) ("Facially neutral incidents may be included, of course, among the `totality of the circumstances' that courts consider in any hostile work environment claim, so long as a reasonable fact-finder could conclude that they were, in fact, based on [protected category]."); Manessis v. New York City Dep't of Transp., No. 02 Civ. 359 (SAS), 2003 WL 289969, at *7 (S.D.N.Y. Feb. 10, 2003) (Scheindlin, J.), aff'd, 86 Fed. Appx. 464 (2d Cir. 2004) (finding that where the plaintiff was told, inter alia, in the midst of a renovation he conld "go any where, even the street," he failed to demonstrate discriminatory animus). See Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2000) (holding that the plaintiff "must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were `sufficiently continnons and concerted' to have altered the conditions of her working environment") (quotingPerry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997));Brennan v. Metropolitan Opera Association, Inc., 192 F.3d 310, 318 (2d Cir. 1999) ("Isolated, minor acts or occasional episodes do not warrant relief [on motion for snmmary judgment on a hostile work environment claim].").
VI. Conclusion
For the aforementioned reasons, defendants' motion for summary judgment is denied-in-part and granted-in-part. Plaintiff's claims against Defendants on the grounds of municipal liability and hostile work environment may proceed. However, Plaintiff's discriminatory termination claims are dismissed, as Plaintiff has failed to demonstrate that Defendants' reasons for firing him were pretextual.
IT IS SO ORDERED.