"Plaintiff has put forward sufficient evidence to establish a prima facie case of discrimination for her claim of discriminatory observations, evaluations, and letters to file. While these actions do not rise to the level of a materially adverse employment action, they are more than merely "trivial, insubstantial, or petty......plaintiff cannot show that a hostile work environment was created "because of her race, age, or national origin. Her hostile work environment claims are dismissed....Since neither the more frequent observations nor the negative reviews of the plaintiff's work had any material consequences on the terms and conditions of Sotomayor's employment, they are not adverse employment actions......The actions taken were not materially adverse to her, even under the more liberal standard applied to retaliation claims......
In view of the facts of this case, no reasonable juror could conclude that Sotomayor was a victim or discrimination."
862 F.Supp.2d 226 (2012)
Gladys SOTOMAYOR, Plaintiff,
v.
CITY OF NEW YORK, New York City Department of Education, Fred Walsh, and Jeanette Smith, Defendants.
v.
CITY OF NEW YORK, New York City Department of Education, Fred Walsh, and Jeanette Smith, Defendants.
United States District
Court, E.D. New York.
May
24, 2012.
Cindy E. Switzer, City of New York Law Department, New York, NY,
for defendants.
MEMORANDUM, ORDER, & JUDGMENT
JACK B. WEINSTEIN, Senior District Judge:
I.
Introduction
..............................................................234
II.
Facts
..............................................................235
A.
Parties
...............................................................235
B.
Sotomayor's Initial Employment with the DOE .......235
C.
Initial Tenure at the School of International
Studies ......................................................236
Studies ......................................................236
D.
2007-2008 School Year..........................................................237
1.
SLT Meeting....................................237
2.
SAVE Room Incident.............................237
3.
Classroom Observations.........................238
4.
Tentative Class Assignments for 2008-2009
School Year ..................................................238
School Year ..................................................238
5.
First FMLA Leave ..............................238
E.
2008-2009 School Year .............................239
1.
Change in Class Assignment.....................239
2.
Classroom Observations ........................239
3.
Concerns About Record Keeping..................241
4.
Unsatisfactory Rating .........................241
5.
Second FMLA Leave .............................242
F.
2009-2010 School Year .............................242
G.
2010-2011 School Year .............................242
1.
Class Assignment ..............................242
2. Classroom Observations.........................242
3.
Failure to Pay for Prep Period ................243
H.
2011-2012 School Year..............................244
1.
Initial Class Assignment.......................244
2.
Plaintiff Initially Excessed ..................244
3.
Plaintiffs Assignments for the 2011-2012 Year..244
4.
Loss of "Per Session" Position.................245
I.
Current Employment.................................245
J.
Evidence of Animus.................................245
1.
School Composition.............................245
2.
Differential Treatment of Plaintiff ...........245
3.
Discriminatory Comments .......................245
4.
Differential Treatment of Others...............246
III.
Procedural History.....................................248
IV.
Summary Judgment Standard..............................248
V.
Claims Against City Are Dismissed .....................248
VI.
Statute of Limitations for NYSHRL and NYCHRL Claims....248
A.
One Year Statute of Limitations Applies to Claims Against the DOE
..............................................248
B.
Time Bar Only Applies to NYSHRL Claims Against DOE.249
1.
NYSHRL Discrimination Claims Against DOE Time Barred .......................................................250
2.
NYCHRL Claims Against DOE Timely ..............250
3.
NYSHRL Harassment Claim Against DOE Timely ....251
VII.
All Discrimination and Retaliation Claims Apply McDonnell Douglas Burden Shifting Framework ............................251
VIII. Federal Discrimination Claims Meritless ...............252
A.
Requirements of a Prima Facie Case ................253
1.
Protected Class ...............................253
2.
Adverse Employment Action .....................253
3.
Satisfactory Performance ......................253
4.
Inference of Discrimination ...................254
B.
No Prima Facie Case ...............................254
1.
Classroom Observations and Unsatisfactory Evaluations ..................................................254
2.
Letters to File................................255
3.
Teaching Preferences...........................255
4.
Teaching Load .................................255
5.
Room Assignment................................256
6.
Excessing......................................256
7.
"Per Session" Employment and Failure to Pay for Test Administration...........................................256
8.
Claims Dismissed ..............................257
IX.
State Discrimination Law...............................257
X. City
Discrimination Law ...............................257
A.
More Liberal Standard Applies......................257
B.
Plaintiff Can Establish a Prima Facie Case Under City Law as to Observations, Evaluations, and
Letters to File......258
C.
Legitimate, Non-Discriminatory Reasons.............258
D.
No Evidence of Pretext.............................259
XI.
Hostile Work Environment Claims Are Meritless..........260
A.
Federal and State Law..............................260
B.
City Law...........................................261
C.
Plaintiff Cannot Show Discrimination ..............261
XII. No
Prima Facie Case of Retaliation Under Title VII, ADEA, NYSHRL, or NYCHRL.............................................261
XIII. FMLA Retaliation Claim Fails...........................262
XIV.
Conclusion....................................................263
I. Introduction
This is one of a growing number of cases where teachers are
subject to more frequent and intense classroom observation, checks, directions,
and suggestions in an attempt to raise the quality of teaching. 235*235 Whether the effect
here was improvement of teaching quality — or, as plaintiff claims, unnecessary
discriminatory and counterproductive stress on a devoted teacher — is not
decided. The educational policy involved and its execution have not violated
this teacher's rights under federal, New York state, or New York City law.
Beginning in the 2007-2008 school year, plaintiff Gladys
Sotomayor, a New York City public school teacher, among other allegedly adverse
actions, received increasingly frequent classroom observations, and was given
negative performance evaluations and adverse letters in her file, by her
supervisors, Principal Fred Walsh ("Walsh") and Assistant Principal
Jeanette Smith ("Smith"). Defendants insist that Sotomayor was an
underperforming teacher who needed this help, critique, and extra supervision.
Sotomayor, a Hispanic-American woman over fifty, claims that these actions were
the product of age, race, and national origin discrimination.
Plaintiff sues Walsh and Smith, as well as her employer, the New
York City Department of Education ("DOE") and the City of New York
("City"), alleging discrimination, retaliation, and hostile work
environment claims under Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. § 2000e et seq.; the Age Discrimination
in Employment Act ("ADEA"), 29 U.S.C. 621 et seq.; Section
1983 of the Civil Rights Act of 1866 ("Section 1983"), 42 U.S.C. §
1983; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law
§ 290 et seq., and the New York City Human Rights Law
("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. See Compl.
¶¶ 42-118, Doc. Entry 1, July 26, 2010 ("Compl."). She also claims
that defendants retaliated against her for exercising her rights under the
Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. See Compl.
¶¶ 119-123.
Defendants move for summary judgment on various grounds. Their
motion is granted. The City is dismissed as an improper party. Sotomayor's
claims under federal, state, and city law against the remaining defendants are dismissed
as without legal basis. She was not treated differently from similarly situated
employees because of her age, race, or national origin.
II. Facts
A. Parties
Plaintiff, who identifies herself as a non-Caucasian Hispanic,
was born on September 6, 1957. See Compl. ¶ 22. She is a
resident of Brooklyn. Id. ¶ 15.
Defendant Fred Walsh was born on April 20, 1967. Defs.'
Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. C 31:11-12 (Dep.
of Fred Walsh), Doc. Entry 36, Feb. 29, 2012 ("Walsh Dep.").
Beginning in the fall of 2004, Walsh was the principal at the School of
International Studies in Brooklyn. Compl. ¶ 18.
Jeanette Smith was born on June 16, 1969. Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. D 12:24 (Dep. of Jeanette
Smith), Doc. Entry 36, Feb. 29, 2012 ("Smith Dep."). During the
relevant period, she was an Assistant Principal at the School of International
Studies. Compl. ¶ 19.
Both Walsh and Smith are Caucasian. Id. ¶ 19.
All three individuals are employees of the DOE, an agency of the
City of New York. See Compl. ¶ 17.
B. Sotomayor's Initial Employment with the DOE
Plaintiff began working for the DOE in August 1999. Defs.'
Statement of Undisputed 236*236 Facts Pursuant to
Local Rule 56.1 Ex. B 43:23 (Dep. of Gladys Sotomayor), Doc. Entry 36, Feb. 29,
2012 ("Pl.'s Dep."). She was initially hired as a substitute second
grade teacher at P.S. 67. Id. 46:4-24.
In September 2002, Sotomayor transferred to the Secondary School
for Law, Research and Journalism, where she was assigned to teach sixth through
eighth grade Spanish. Id. 49:13-16, 51:3-5. An Observation
Report dated April 19, 2002 rated her lesson satisfactory overall, but
highlighted as areas of improvement the "timing and pacing" of the
lesson and the failure to "provide a multitude of varied activities so that
student may explore the concept in question," to "maintain a clean
area for students to work," and to display student work in the classroom.
Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. F (April
19, 2002 Observation Report), Doc. Entry 36, Feb. 29, 2012.
Plaintiff was "excessed" in the summer of 2003,
requiring her to find a new position in another school. Id. 52:19-53:10.
It is unclear from the record why she was excessed.
C. Initial Tenure at the School of
International Studies
In the fall of 2003, she began working at the School of
International Studies, teaching sixth grade students in an inclusion bridge
program. Id. 55:2-25. Sixth-to twelfth-grade students attend
the School of International Studies. Walsh Dep. 6:20-22.
When the bridge program was discontinued the following year,
Sotomayor was hired to teach middle school and high school Spanish beginning in
2004. Pl.'s Dep. 63:7-64:5. The interview team that hired her included
defendant Walsh, who was then an assistant principal. Id.
From the 2004-2005 to the 2006-2007 school year, Sotomayor
taught middle school and high school Spanish. Id. at 63:2-4;
70:10-12; 74:24-75:2. In the 2006-2007 school year, plaintiff was also assigned
to the SAVE room, the designated classroom for students who have been removed
from their classrooms for disciplinary infractions or given an in-school
suspension. Pl.'s Dep. 74:24-75:2.
In this period, Walsh observed the plaintiff approximately once
per year, and took the following actions:
• In April 2005, Walsh rated her lesson as
overall satisfactory, but recommended that plaintiff needed to "take a
more pro-active approach to classroom and time management" and to
"work to create a more structured and productive classroom culture."
Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. I (Apr.
11, 2005 Report on Observation), Doc. Entry 36, Feb. 29, 2012.
• In November 2006, Walsh noted that the
plaintiff was "inconsistent" in ensuring that the lesson's objective
was "explicitly stated or referred to by the teacher" and in
maintaining the classroom environment in proper fashion. He also noted that her
lesson did not have closure and did not take into account students' varied
learning styles, and that no student work was on display. Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. L (Nov. 21, 2006 Report on
Observation), Doc. Entry 36, Feb. 29, 2012.
Walsh nevertheless wrote Sotomayor a letter recommending her for
participation in the DOE's Aspiring Leadership Cohort Program. Defs.' Statement
of Undisputed Facts Pursuant to Local Rule 56.1 Ex. H 237*237 (March 23, 2005
Letter), Doc. Entry 36, Feb. 29, 2012.
Sotomayor also received feedback from other administrators
regarding the need to submit substitute lesson plans:
• In November 2004, Assistant Principal
Caroline Garrett, who was then plaintiff's supervisor, advised Sotomayor that
she had not yet submitted substitute lesson plans as she was required to do.
Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. G (Nov.
29, 2004 Letter), Doc. Entry 36, Feb. 29, 2012. Plaintiff argues that the
letter was factually incorrect. Pl.'s Dep. 143:15-144:16.
• In January 2006, Assistant Principal Judith
Willoughby advised Sotomayor that her lesson plans were overdue despite two
verbal reminders. Defs.' Statement of Undisputed Facts Pursuant to Local Rule
56.1 Ex. K (Jan. 13, 2006 Letter), Doc. Entry 36, Feb. 29, 2012.
D. 2007-2008 School Year
For the 2007-2008 school year, Sotomayor was assigned to teach
middle school and high school Spanish and to monitor the SAVE room. She
indicates that the problems with Walsh and Smith began that year. See Pl.'s
Dep. 135:5-7.
1. SLT Meeting
On November 1, 2007, plaintiff attended a meeting of the School
Leadership Team (SLT) as a substitute for her union leader; there, she became
upset and distraught. Pl.'s Dep. 116:8, 119:3-12. In a letter to file dated
November 16, 2007, Walsh observed that she had "arrived late with a strong
odor of alcohol on [her] breath; [she] frequently interrupted the meeting with
unrelated issues; [her] words were slurred and [she] had an antagonistic and
confrontational ma[nn]er." Defs.' Statement of Undisputed Facts Pursuant
to Local Rule 56.1 Ex. Q (Nov. 16, 2007 Letter), Doc. Entry 36, Feb. 29, 2012.
He noted that these observations were echoed by letters he received from all of
the adult members of the SLT, and he concluded that her conduct was
inappropriate and unprofessional. Id.
In her written response, Sotomayor explained that she was
stressed at the time of the SLT meeting. Defs.' Statement of Undisputed Facts
Pursuant to Local Rule 56.1 Ex. O (Dec. 12, 2007 Letter), Doc. Entry 36, Feb.
29, 2012, She denied being under the influence of any substance. Id.
While Walsh wrote a letter to file regarding plaintiff's
behavior at the SLT meeting, he allegedly resolved similar issues with younger
Caucasian teachers informally, without such letters. Id. 124:13-125:25;
130:2-131:6. These issues involved infractions such as "being late, taking
the day off if you party too much on Saint Patty's day, or if you decide to
take a trip somewhere." Id. 125:18:21.
2. SAVE Room Incident
On December 12, 2007, plaintiff was supervising four students in
the SAVE room who had been involved in a fight between Arab and
African-American students. When Walsh entered the room, he noticed that several
students were listening to their iPods through headphones in violation of
school policy. Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1
Ex. R (Dec. 17, 2007 Letter), Doc. Entry 36, Feb. 29, 2012. Some were not
engaged in academic activities as required by SAVE room procedures. Id. Walsh
intervened, removing several students from the room, confiscating their iPods,
and talking to them about school rules. Id. Plaintiff
testified that defendant Walsh was "very ... menacing towards the
boys" during the incident. Pl.'s Dep. 113:10.
238*238 Sotomayor reacted
in a January 18, 2008 letter, explaining that she had told students not to
listen to their iPods and that students were not engaged in academic work
because they were airing their feelings about the fight. Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. S (Jan. 18, 2008 Letter), Doc.
Entry 36, Feb. 29, 2012.
Plaintiff believes that Walsh's actions were discriminatory
because "if I was a white male, I don't think he would have gone in there
and barged right in." Pl.'s Dep. 115:9-10.
When other white teachers have covered the
SAVE room, he is more warm, convivial. He doesn't get into the faces of the
students. It's just a different demeanor and approach.
Id. 115:16-19. She
identified specific Caucasian teachers, including Sara Davis and Christian
Bowen, who had been treated differently. Pl.'s Dep. 115:22-23.
3. Classroom Observations
Beginning in the 2007-2008 school year, Sotomayor began
receiving more frequent classroom observations from Walsh, as well as
unsatisfactory ratings following those observations.
• In December 2007, Walsh noted that, although
plaintiff had a "pleasant rapport with students" and "the
majority of students worked on the packet for the duration of the period,"
the quality of her instruction needed improvement. He also stated that she
needed to hold students accountable to a higher standard, and to greet them as
they entered the classroom. Defs.' Statement of Undisputed Facts Pursuant to
Local Rule 56.1 Ex. N (Dec. 21, 2007 Report on Observation), Doc. Entry 36,
Feb. 29, 2012.
• In the spring of 2008, Walsh conducted
several informal observations of plaintiff's classroom. Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. T (Apr. 9, 2008 Letter), Doc.
Entry 36, Feb. 29, 2012. After discussing his observations with Sotomayor, he
memorialized them in an April 9, 2008 letter. He noted that Sotomayor was late
to class on two occasions; that she was unable to provide lesson plans; that
she did not acknowledge or record student tardiness; and that she did not
ensure that students were on task during the classroom period. Id. He
particularly faulted her "failure to plan meaningful, rigorous, and paced
lessons." Id. He reminded plaintiff that she should
"arrive to class before the first bell rings, to set up [her] materials,
greet [her] students at the door and set a positive tone and high
expectation[s] for the class." Id.
4. Tentative Class Assignments for 2008-2009
School Year
In April 2008, teachers at the School for International Studies
were asked to rank three choices of which subjects they wished to teach in the
upcoming school year. On her preference sheet, plaintiff listed only her top
choice, high school Spanish. Defs.' Statement of Undisputed Facts Pursuant to
Local Rule 56.1 Ex. V (2008-2009 Preference Sheet), Doc. Entry 36, Feb. 29,
2012. She was tentatively assigned to the classes she requested. Defs.'
Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. W (Tentative
Assignment), Doc. Entry 36, Feb. 29, 2012.
5. First FMLA Leave
In June 2008, Sotomayor learned that her father had been
diagnosed with cancer. Pl.'s Dep. 196:1-9, 197:21-24. She requested 239*239 family medical
leave in order to care for her father. Id. 197:5-7. It was
granted. Id. 200:23-201:1.
E. 2008-2009 School Year
1. Change in Class Assignment
On June 25, 2008, approximately one week after Sotomayor
requested FMLA leave, Walsh changed her tentative class assignment for the
2008-2009 school year. Rather than teaching high school Spanish exclusively,
plaintiff was assigned to teach high school Spanish 1, eight grade Spanish, and
sixth grade International Studies, and to preside at the SAVE room. Defs.'
Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. X (June 25, 2008
Emails), Doc. Entry 36, Feb. 29, 2012. When plaintiff asked why her preference
had been changes, Walsh explained that it was required by the needs of the
school. Id. Defendants claim the change was made due to
budgetary constraints and the licenses which plaintiff held. See id.; Walsh
Dep. 171:22-172:12.
Plaintiff filed a grievance, claiming that her new schedule was
onerous. Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. Y
(Step 1 Grievance), Doc. Entry 36, Feb. 29, 2012. Following a hearing on August
28, 2008, Walsh denied her grievance. Defs.' Statement of Undisputed Facts
Pursuant to Local Rule 56.1 Ex. Z (Step 1 Grievance Determination), Doc. Entry
36, Feb. 29, 2012. At plaintiff's request, a hearing before an independent
arbitrator was provided; the arbitrator denied the grievance. Defs.' Statement
of Undisputed Facts Pursuant to Local Rule 56.1 Ex. AA (Sept. 24, 2008
Arbitration Decision), Doc. Entry 36, Feb. 29, 2012.
2. Classroom Observations
Plaintiff returned to work at the beginning of the new school
year in September 2008. Pl.'s Dep. 201:2-5. In the year that followed,
plaintiff continued to be observed more frequently than in years past.
Defendant Smith, Sotomayor's supervisor, conducted several
informal and formal observations of plaintiff's classes:
• Plaintiff was observed informally on
September 8th and 11th Smith provided suggestions for using instructional time
more effectively and recommended that plaintiff: 1) work on student engagement,
and 2) hold students accountable for their actions. Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. BB (Emails RE: Sept. 8, 2008
Informal Observation), Doc. Entry 36, Feb. 29, 2012; Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. CC (Emails RE: Sept. 11, 2008
Informal Observation), Doc. Entry 36, Feb. 29, 2012.
• At her request, plaintiff was formally
observed on November 17. The lesson was rated satisfactory, although Smith
noted several areas for improvement, including improving the pacing of her
lesson and better utilizing class time. Defs.' Statement of Undisputed Facts
Pursuant to Local Rule 56.1 Ex. DD (Dec. 1, 2008 Observation Report), Doc.
Entry 36, Feb. 29, 2012.
As a result of these observations, Smith arranged to meet with
plaintiff weekly to go over her lesson plans and unit outlines. Id. Sotomayor
also met with Marci Mann, an Instructional Specialist from the Community
Learning Support Organization, on several occasions. Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. EE (Dec. 20, 2008 Letter),
Doc. Entry 36, Feb. 29, 2012; Defs.' Statement of Undisputed Facts Pursuant to
Local Rule 56.1 Ex. FF (Log of Assistance), Doc. Entry 36, Feb. 29, 2012.
Plaintiff does not 240*240 consider her
meetings with the Instructional Specialist to constitute professional
development, since many other teachers were present during the sessions. Pl.'s
Dep. 293-94.
Sotomayor and Smith had several additional discussions regarding
the absence of substitute lesson plans.
• On March 19th, Sotomayor was absent and had
not left copies of substitute lesson plans for her International Studies class,
as required by the faculty handbook. Defs.' Statement of Undisputed Facts
Pursuant to Local Rule 56.1 Ex. JJ (Mar. 23 and Mar. 31 Letters RE: Substitute
Work), Doc. Entry 36, Feb. 29, 2012. Smith advised plaintiff that she had
scheduled a meeting for March 25th to discuss this deficiency, and that,
because the meeting could lead to disciplinary action, plaintiff could bring a
union representative. Id. Plaintiff responded by letter that
"there was plenty of work available for my students on top of a desk next
to the computers. In addition, there's additional work that subs can draw from
in the event more is needed." Id. She disputed whether
leaving substitute work was part of her contract or could subject her to
disciplinary action. Id.
Following the meeting, Smith "conclude[d]
that [plaintiff] failed to follow the established procedure for submitting 3
substitute lesson plans ... as outlined in the faculty handbook." Id. Sotomayor
agreed to submit plans no later than April 3rd. Id. On April
2nd, Sotomayor submitted a letter disputing Smith's characterization of events,
stating that they had established at the meeting that Smith "had
additional plans (6th grade work) on file and that you found other plans
available in my classroom pursuant to school policy." Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. KK (Apr. 2, 2009 Letter), Doc.
Entry 36, Feb. 29, 2012. She asked that Smith's letter memorializing the April
25, 2009 meeting be withdrawn from her file. See also Pl.'s
Dep. 147:14-149:2.
• On May 8th, Smith notified plaintiff that
all of the lesson plans that were on file had been used by previous absences
and the stock needed to be replenished. Defs.' Statement of Undisputed Facts
Pursuant to Local Rule 56.1 Ex. LL (May 8, 2009 Email), Doc. Entry 36, Feb. 29,
2012.
Plaintiff believes that Smith was discriminating against her by
raising this issue, since she has substituted for other teachers who had not
left lesson plans and she is not aware of other teachers who received similar
letters. Pl.'s Dep. 149:18-152:11.
Plaintiff was also formally and informally observed by Walsh:
• On February 3rd, the first day of the new
semester, Walsh walked through the school briefly observing all of his high
school classes. Defs.' Statement of Undisputed Facts Pursuant to Local Rule
56.1 Ex. HH (Emails RE: Spring Term), Doc. Entry 36, Feb. 29, 2012. When he
dropped by plaintiff's classroom twenty minutes into the period, he saw
students still wearing their coats with their book bags on their backs. Id. None
of these students were actively participating in classwork. Id.
• On March 5th, Walsh formally observed the
plaintiff. He met with her the following day to discuss the lesson, which he
considered to be unsatisfactory. Defs.' Statement of Undisputed Facts Pursuant
to Local Rule 56.1 Ex. II (Mar. 9, 2009 Observation 241*241 Report), Doc. Entry
36, Feb. 29, 2012. His criticisms were similar to previous observations, citing
her failure to properly pace the lesson and failure to engage her students. Id. He
suggested techniques for improvement. Id.
• On April 29th, Smith again formally observed
the plaintiff and concluded that her lesson was unsatisfactory. Defs.'
Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. MM (May 8, 2009
Observation Report), Doc. Entry 36, Feb. 29, 2012. Many of the criticisms and
recommendations were similar to those from past observations. Id.
By a letter dated Friday, May 15th, Sotomayor was advised that
Instructional Specialist Mann would conduct a formal observation of her fifth
period class. Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1
Ex. OO (May 15, 2009 Letter), Doc. Entry 36, Feb. 29, 2012. A pre-observation
conference would be conducted the same day during second period. Id. While
there is no required notice period prior to conducting a formal observation, it
is said by defendants to be unusual to have a pre-observation meeting on the
same day as the observation itself. Walsh Dep. 125:4-19, 186:22-187:5.
According to Walsh, Mann was brought in as the Superintendent's designee and
outsider to observe the plaintiff with a neutral set of eyes because Walsh had
reported that Sotomayor was at risk of an unsatisfactory rating. Id. 191:3-11;
195:13-25. Sotomayor did not see the letter until she arrived at work on
Monday, May 18th. Pl.'s Dep. 205:7-14.
After observing plaintiff's lesson, Mann noted that, while there
were some improvements compared to previous lessons she had observed Sotomayor
teach, the lesson was overall unsatisfactory. Defs.' Statement of Undisputed
Facts Pursuant to Local Rule 56.1 Ex. PP (May 18, 2009 Observation Report),
Doc. Entry 36, Feb. 29, 2012. Mann's report echoed many of Walsh and Smith's
previous criticisms and suggestions for improvement, including that she needed
to work on her pacing and improve the learning environment by using visual aids
to engage the students. Id.
3. Concerns About Record Keeping
In a Friday, May 15th letter, Walsh asked Sotomayor to meet with
him the following Tuesday, May 19th, to discuss grading and record keeping for
her students. Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1
Ex. NN (May 15, 2009 Letter), Doc. Entry 36, Feb. 29, 2012. In particular, he
was concerned that one of her students had failed all classes except for
plaintiff's class, despite poor attendance. Walsh Dep. 197:24-198:14. This meeting
never took place due to Sotomayor's FMLA leave of absence, which is discussed
below. Pl.'s Dep. 205:5-7. Plaintiff believes that Walsh's inquiry was another
form of intimidation. Id. 211.
4. Unsatisfactory Rating
Plaintiff received a "U" (unsatisfactory) rating on
her Annual Performance Review for the 2008-2009 school year. Defs.' Statement
of Undisputed Facts Pursuant to Local Rule 56.1 Ex. QQ (2008-2009 Annual
Evaluation), Doc. Entry 36, Feb. 29, 2012. She appealed the rating before the
DOE's Office
of Appeals and Reviews.
Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. SS (Notice
of Appellant), Doc. Entry 36, Feb. 29, 2012. Her appeal was eventually denied
following a hearing. Defs.' Statement of Undisputed Facts Pursuant to Local
Rule 56.1 Ex. TT (June 8, 2010 Letter), Doc. Entry 36, Feb. 29, 2012.
On Saturday, May 16th, Sotomayor notified Walsh by email that
she was taking a second FMLA leave effective May 19th. Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. KKK (May 16, 2009 Email), Doc.
Entry 36, Feb. 29, 2012. Walsh approved her request with reservations:
Ms. Sotomayor was absent for the last 6 days
of the school year 2007-2008 regarding her father's illness. The total of her
absences result in 11 days.
On May 18th she informed me that as of May
19th, she had to take a leave of absence to take care of her terminally ill
father. She would be returning for the start of the school year 2009.
Ms. Sotomayor is at risk of an Unsatisfactory rating
due to instructional incompetence. It is my understanding that by taking a LOA,
her "U" rating is automatically changed to a "C" rating.
Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1
Ex. RR (May 28, 2009 Letter), Doc. Entry 36, Feb. 29, 2012. Plaintiff disputes
that this is the "real" version of the letter, because another
version of the letter which omits the reference to her rating was uncovered in
discovery. Pl.'s Decl. in Opp. Ex. 6 (May 28, 2009 Letter), Doc. Entry 44, Apr.
20, 2012.
F. 2009-2010 School Year
When plaintiff returned to work in September 2009, she initially
taught high school Spanish and middle school English as a Second Language (ESL).
Pl.'s Dep. 78:6-18. Although she was supposed to begin teaching a Regents'
preparation class in the second semester, at the last minute, her class was
changed to Essay Writing for middle school ESL Learners. Id. 78:15-80:15.
At least two other teachers — one a Caucasian male, the other a Haitian female
— were similarly assigned classes with little notice. Id. 81:12-83:4.
Plaintiff does not know the ages of either of these teachers.
Other than receiving teaching assignments that were not her
preference, Sotomayor does not allege that she was discriminated or retaliated
against during the 2009-2010 school year. She received a satisfactory rating on
her Annual Performance Evaluation that year. Id. 263:16-18.
G. 2010-2011 School Year
1. Class Assignment
During the 2010-2011 school year, plaintiff was assigned to
teach high school Spanish, middle school ESL, and ESL test coordination. Pl.'s
Dep. 83:14-19.
2. Classroom Observations
Defendant Walsh again conducted several formal and informal
observations of the plaintiff:
• On December 2nd, Walsh determined that
plaintiff's performance was unsatisfactory following an observation of her
second and third period classes. Defs.' Statement of Undisputed Facts Pursuant
to Local Rule 56.1 Ex. XX (Dec. 2, 2010 Observation Report), Doc. Entry 36,
Feb. 29, 2012. He criticized the lack of structure in her lesson, as well as
her failure to manage the classroom effectively.
Plaintiff alleges that the "observation
was unfair and factually false and occurred on the day after a possible bedbug
infestation was discovered in plaintiff's classroom and during a time that the
students were emotionally upset as a result of preparing for midterms."
Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. UU (Pl.'s
Resp. to Defs.' Interrogatories), Doc. Entry 36, Feb. 29, 2012 ("Pl.'s
Resp. to Defs.' Interrogatories"); Defs.' 243*243 Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. YY (Dec. 6, 2010 Email), Doc.
Entry 36, Feb. 29, 2012.
• On December 21st following a formal
observation, Walsh again concluded that plaintiff's lesson was unsatisfactory:
the lesson was poorly planned, and she had failed to implement his suggestions
following his previous observation. Defs.' Statement of Undisputed Facts
Pursuant to Local Rule 56.1 Ex. ZZ (Jan. 3, 2011 Observation Report), Doc.
Entry 36, Feb. 29, 2012.
Plaintiff initially claimed that, during the
observation, Walsh "was very confrontational towards [her] and the
students displayed shock that defendant Walsh would, in their presence, treat
plaintiff in such a menacing and threatening manner." Pl.'s Resp. to
Defs.' Interrogatories. She later clarified that "it wasn't so much as he
got into my face, it was surprising that he came in on that day [December 21,
2010], because it was a day the kids would probably have been agitated. We had
a random scanning conducted that week, right before the holiday. Oddly enough,
one of the kids was screaming in the halls, they felt violated because they had
all of their electronic devices taken." Pl.'s Dep. 190:10-20.
• On February 17th, after escorting two late
students to Sotomayor's class, Walsh conducted another informal observation.
Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. AAA (Feb.
18, 2011 Observation Report), Doc. Entry 36, Feb. 29, 2012. He observed that
approximately half of her students were not engaged in any work and that she
was not keeping records of lateness or attendance. Id. She
could not provide him with a lesson plan when asked. Id. He
concluded that her lesson was unsatisfactory.
Id.
Plaintiff claims that, during the observation,
Walsh was "disruptive, abusive, and acted in a way to undermine the
learning process." Pl.'s Resp. to Defs.' Interrogatories 8.
Assistant Principal Judith Willoughby, who is not a party to
this action, also negatively critiqued plaintiff's performance:
• In an October 29 email, Willoughby
criticized the condition and appearance of plaintiff's classroom during the
prior evening's Parent-Teacher conferences and scheduled a meeting to address
the issue. Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex.
WW (Oct. 29, 2010 Email), Doc. Entry 36, Feb. 29, 2012.
• On March 30th, Willoughby conducted a formal
observation of Sotomayor. Although she rated the lesson as satisfactory, she
listed several areas of improvement, such as keeping her classroom and
materials cleaner and better organized. Defs.' Statement of Undisputed Facts
Pursuant to Local Rule 56.1 Ex. BBB (Mar. 30, 2011 Observation Report), Doc.
Entry 36, Feb. 29, 2012.
Plaintiff received a satisfactory rating on her Annual
Performance Evaluation for the year. Defs.' Statement of Undisputed Facts
Pursuant to Local Rule 56.1 Ex. EEE (2010-2011 Annual Evaluation), Doc. Entry
36, Feb. 29, 2012.
3. Failure to Pay for Prep Period
Plaintiff alleges that she was not paid for preparation periods
on two occasions in the spring of 2011. Pl.'s Resp. to Defs.' Interrogatories
8. During that semester, 244*244 plaintiff chose to
use the period scheduled as her professional period for ESL Administration,
Period 1, as her preparation period, and to use her scheduled preparation
period, Period 4, as her professional period. Pl. Dep. 240:9-243:4. After she
was assigned to conduct practice test administration for ESL students on two
occasions during Period 1, Sotomayor filed a grievance, alleging she was
"not being paid for prep periods." Id. The grievance
was denied because the period during which she was assigned to administer the
tests was her scheduled professional period, not a prep period. Id. Her
UFT representative agreed with Walsh that plaintiff was not entitled to be paid
for administering practice tests during her scheduled professional period. Id.
H. 2011-2012 School Year
1. Initial Class Assignment
By a memorandum dated June 24th, 2011, Sotomayor was initially
advised that her tentative assignment for the 2011-2012 school year would be
teaching sixth grade science and seventh grade social studies. Defs.' Statement
of Undisputed Facts Pursuant to Local Rule 56.1 Ex. FFF (June 24, 2011 Mem.),
Doc. Entry 36, Feb. 29, 2012.
On June 27th, she filed a grievance on the grounds that her
assignment required "excessive preparation." Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. GGG (June 27, 2011 Step I
Grievance), Doc. Entry 36, Feb. 29, 2012.
2. Plaintiff Initially Excessed
On June 28th, plaintiff was notified that she was being excessed
from the school. Defs.' Statement of Undisputed Facts Pursuant to Local Rule
56.1 Ex. HHH (June 28, 2011 Excess Letter), Doc. Entry 36, Feb. 29, 2012.
According to defendant Walsh, teachers are excessed when a budgetary shortfall
requires a principal to go through the school's table of organization to look
for positions which lack funding. Walsh Dep. 249:12-16. Sotomayor was set to be
excessed because he believed that there was insufficient money to pay all of
the teachers on his staff. Id. 249:12-253:13. Sotomayor in
particular was chosen, Walsh contends, because of the needs of the school.
While plaintiff has a Common Branch License to teach pre-kindergarten to sixth
grade and an Initial Spanish License, she has never received a permanent Spanish
license. Pl.'s Dep. 19:17-22:11. Walsh believed that he needed to replace a
common branch licensed teacher with a licensed ESL teacher. Walsh Dep.
249:12-253:13. She was the only teacher scheduled to be excessed that year. Id. 250:6-7.
In late June 2011, Walsh was informed by the human resources
person in the school's network that it was not necessary to excess a teacher. Id. 249:20-251:20.
He immediately called Sotomayor to let her know that she could return to the
School for International Studies for the 2011-2012 school year. Id.
3. Plaintiff's Assignments for the 2011-2012
Year
When Sotomayor returned to the school in the fall of 2011, she
was assigned to teach sixth and seventh grade Social Studies and Advanced High
School ESL. Pl. Dep. 109:5-8. She has not filed a grievance regarding this
assignment.
Plaintiff was assigned to teach in Room 117. Id. 265:16-18.
She complains that this room assignment is undesirable because it had
"become a dumping ground for faculty who were getting rid of their stuff
and the classroom contained old or broken desks. Id. 265:19-266:16.
Although defendant Smith said that she would remove these objects from
plaintiff's 245*245 classroom, she
apparently never did. Id. 226:17-22.
4. Loss of "Per Session" Position
She also claims that she lost an opportunity for a "per
session" position, which is a job performed by teachers before or after
school hours, such as supervising or leading extracurricular activities or
offering extra academic help. Id. 243:19-251:7. Plaintiff held
per session positions continuously from the 2006-2007 school year to the
2010-2011 school year. Id. Most of these positions were for
conducting an afterschool ESL program. Id. At the time of
Sotomayor's deposition, she did not have a "per session" position for
the 2011-2012 school year, because the ESL afterschool program had not yet
started. Id. 247:16-25. Other extracurricular activities, such
as sports programs, had begun. Id. Plaintiff believes that the
delay in the launch of the ESL afterschool program is the result of
discrimination. Id. 249:17-25.
On January 9, 2012 — after plaintiff's deposition in this case
was taken — a "per session" vacancy notice was posted for a teacher
to conduct an afterschool program for English Language Learners. Decl. of Fred
Walsh ¶ 12, Doc. Entry 47, May 11, 2012 ("Walsh Decl."). Sotomayor
did not apply for the position. Id. ¶ 13. She has never been
denied the opportunity to work a "per session" job that she has
applied for. Pl. Dep. 251:4-7.
I. Current Employment
At the time of the hearing, Sotomayor was still employed at the
School of International Studies. See Tr. of Hr'g, May 15,
2012.
J. Evidence of Animus
1. School Composition
Since Walsh became principal, the number of teachers at the
school fluctuated between thirty-two and forty. Walsh Dep. Id. 66:18-16.
Most of the teachers at the school are Caucasian. Id. 74:19-23.
During his tenure, there have been at least nine faculty members of Hispanic
national origin and at least seven African-American faculty members. Id. 69-72;
69:24-70:20. Most of the teachers are between thirty and forty years old. Id. 79:21-23.
Six or seven teachers are more than forty years old. Id. 77:24-25.
2. Differential Treatment of Plaintiff
In addition to the facts outlined above, plaintiff alleges that
she was discriminated against because:
• Her room assignments were changed
frequently, and "that did not happen with the white staff." Pl. Dep.
136:14-16.
• She has historically received a
disproportionate number of at-risk students with special needs compared to the
other Spanish teacher. Id. 85:21-86:5. The other teacher is in
her early 30s. Id. 89:12-13.
• She was subjected to multiple observations
each school year. Most tenured teachers received only two formal observations
during an average school year. Walsh Dep. 124:22-24.
Walsh admits that underperforming teachers
receive more frequent observations, and that he considered Sotomayor to be
underperforming. Id. 117:9-15.
• She received undesirable classroom
assignments. No other teachers shared classrooms for two consecutive years. Pl.
Dep. 106:16-23.
No other teacher has applied for FMLA leave. Walsh Dep.
216:6:22.
3. Discriminatory Comments
Plaintiff admits that Walsh never made any discriminatory or
derogatory statements to her or other staff. She contends, 246*246 however, that he
has made such statements regarding students, "particularly about the type
of clientele they wanted to attract." Pl.'s Dep. 138:3-7. These comments
included:
• Walsh wanted to attract "higher
performing students. Students that not necessarily are English language
learners." Id. 138:9-11. According to plaintiff, the
"types of students he wishes to attract are from middle class and upper
middle class not necessarily the students that are from other ethnicities who
reside in the community, primarily the Arabic-speaking community and the
children who come from the various housing projects." Id. 273:1-7.
Sotomayor also claims that she observed Walsh reject minority students who
attempted to register at the school, even though it was under capacity. Id. 274:9-275:3.
• Following a bedbug infestation, Walsh
"implied the kids don't clean up after themselves, they're not washing,
they're wearing their clothes more than once. The students themselves felt they
were being discriminated against, that he was being prejudicial that they
wouldn't wash." Id. 276:12-17.
Plaintiff believes these statements are discriminatory because
the current student population is "predominately Hispanic, predominately
African American, and a huge percentage of the English language learners are
from the community who are Arab speaking." Id. 138:21-139:1.
While Smith never made any discriminatory or derogatory
statements towards her or other staff, Sotomayor claims that Smith has made
such statements regarding students. Id. 165:1-3. Specifically,
in reference to "a couple of newly arrived Arab girls" who had been
roaming the halls without being sanctioned, Smith said, "You know how
these girls are. They think they can do whatever they want." Id. 165:14-19.
Plaintiff also claims that Smith spoke to her differently than Smith spoke to
other teachers. Smith allegedly addressed Sotomayor in a condescending tone. Id. 169:5-6.
[Her] communication style is not warm and
professional. It is stern, adversarial and curt. I would see her engage with
the other faculty members in the school and that was a totally different
response.
Id. 160:25-161:3.
Smith is claimed to be warmer and more professional towards men. Id. 163:16-18.
4. Differential Treatment of Others
Plaintiff claims that other older and/or non-Caucasian tenured
teachers were treated similarly to plaintiff, while Caucasian and younger
teachers were treated more favorably. She alleges:
• Walsh and Smith "targeted" other
"faculty of color" by making a series of "surprise, drop by
observations." Id. 140:14-141:18. Plaintiff claims that
Walsh did not make similar informal observations of younger Caucasian teachers. Id. 135:1-4.
She admits, however, that only one of the other Hispanic faculty members that
she could remember being on staff since Walsh became principle was subject to
the same "administrative strategies" of informal observations and
negative write-ups. Id. 253:9-258:23.
• Walsh only documented informal observations
of underperforming teachers. Walsh Dep. 159:3-18.
• Other than the plaintiff, he issued
unsatisfactory formal observation reports only on underperforming teachers. Id. 162:25-163:15.
All of 247*247 the tenured
teachers who received these reports were older and/or non-Caucasian. Id.
• Walsh has given six tenured teachers
unsatisfactory year end ratings during his tenure, all of whom were older
and/or non-Caucasian. Id. 226:16-227:2.
• Walsh identified two tenured teachers other
than the plaintiff who have been underperforming at one time or another. Id. 120:8-122:23.
One is an African-American woman who is approximately thirty years old. Id. The
other is a Middle Eastern man in his mid-fifties or sixties. Id. He
did not identify any tenured younger Caucasian teachers as underperforming. Id.
Walsh has since stated that he was mistaken at
his deposition, and that the male teacher identified was not given an
unsatisfactory rating. Walsh Decl. ¶¶ 10-11.
• In addition to plaintiff, only older and/or
non-Caucasian teachers are listed in the log of assistance, which
"documents any professional development meetings" with "teachers
who have a demonstrated pattern of incompetence." Walsh Dep.
227:12-229:15.
• Other than the plaintiff, Walsh could recall
only two other tenured teachers who received at least two letters to file. Both
were African-American women he considered to be underperforming. Id. 144.
• Walsh sought to dismiss Clarissa Clay, an
African-American teacher, after rating Walsh found that two tenured teachers
who were approximately sixty-five years old had consistently underperformed for
two years in a row. Id. 96:5-25. One teacher retired; the
other was assigned elsewhere. Id.
• her performance unsatisfactory for two
consecutive years. Walsh Dep. 33:98-34:2. At a formal termination proceeding,
seventeen of the nineteen charges of incompetence against Clay were sustained. Id. 33:16-19.
Clay was required to pay a fine and attend remedial coursework. Id.
• Walsh terminated a sixty year-old
African-American teacher during her probationary period. Id. 37:14-38:7.
• Walsh "tends to hire white men, young
women, young white women." Pl. Dep. 75:4-6. She did not point to any
specific instances in which an older or non-Caucasian teacher was replaced by a
younger and/or white teacher.
Defendants note several instances in which teachers who were
Caucasian were treated similarly to the plaintiff:
• A Caucasian female teacher under 40 years
old received multiple disciplinary letters to file in the course of a school
year. Walsh Dep. 149:7-17.
• A Caucasian male teacher under 40 years old
received a "U" (unsatisfactory) rating on his Annual Performance
Evaluation for the 2009-2010 school year. Walsh Decl. ¶ 9.
• For the 2008-2009 school year, plaintiff was
the only pedagogical employee who received a "U" rating. See Walsh
Decl. Ex. A (Chart of Ratings for 2008-2009 School Year). All sixteen of the
other non-Caucasians and all fourteen of the other "older" pedagogues
received satisfactory ratings that year. Id.
• For 2009-2010 school year, two pedagogical
employees received "U" ratings: a Caucasian teacher under 248*248 40 years and a
Caucasian teacher over 40 years old. See Walsh Decl. Ex. B
(Chart of Ratings for 2009-2010 School Year). All fourteen non-Caucasians and
fifteen of the sixteen "older" pedagogues (including plaintiff)
received satisfactory ratings that year.
• For the 2010-2011 school year, two pedagogical
employees received "U" ratings: an Arabic teacher over 40 years old
and a Caucasian teacher over 40 years old. Walsh Decl. Ex. C (Chart of Ratings
for 2010-2011 School Year). Twelve of the thirteen non-Caucasians and fifteen
of the seventeen "older" pedagogues (including plaintiff) received
satisfactory year end ratings for the 2010-2011 school year.
III. Procedural History
On September 8, 2009, plaintiff filed a written charge of
discrimination with the United States Equal Employment Opportunity Commission
("EEOC"). Compl. ¶ 9. She commenced the instant action on July 26,
2010.
IV. Summary Judgment Standard
Summary judgment is appropriate if "there is no genuine
issue as to any material fact and if the moving party is entitled to a judgment
as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986); see also Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir.1999). In ruling
on a motion for summary judgment, the evidence must be construed in the light
most favorable to the non-moving party and all reasonable inferences drawn in
her favor. Fed.R.Civ.P. 56(c); see Anderson, 477
U.S. at 247-50, 255, 106 S.Ct. 2505; Sledge v. Kooi, 564
F.3d 105, 108 (2d Cir.2009). The burden rests on the moving party to
demonstrate the absence of a genuine issue of material fact. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). If the moving party appears to have met this burden, the
opposing party must produce evidence that raises a question of material fact to
defeat the motion. See Fed.R.Civ.P. 56(e). This evidence may
not consist of "mere conclusory allegations, speculation or
conjecture." Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir.1996); see
also Delaware & Hudson Ry. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir.1990) ("Conclusory
allegations will not suffice to create a genuine issue.").
V. Claims Against City Are Dismissed
All claims against the City of New York are dismissed. The City
and the DOE are separate legal entities, and the City cannot be held liable for
the alleged torts of DOE employees. E.g. Perez v. City of New York, 41 A.D.3d 378, 837 N.Y.S.2d 571, 572 (1st Dep't
2007) ("The City cannot be held liable for [torts
allegedly committed by the DOE and its employees]."); Falchenberg v. New York Dep't of Educ., 375 F.Supp.2d 344, 347 (S.D.N.Y.2005) ("[T]he
City and DOE are separate and distinct entities.... In the absence of any
allegations demonstrating participation by the City, the complaint fails to
state a cause of action against it."). Because plaintiff alleges acts
committed by the DOE and its employees, the City of New York is not a proper party.
VI. Statute of Limitations for NYSHRL and
NYCHRL Claims
A. One Year Statute of Limitations Applies to
Claims Against the DOE
In general, the statute of limitations under the NYSHRL and the 249*249 NYCHRL is three
years. N.Y. C.P.L.R. 214(2); N.Y.C. Admin. Code § 8-502(d); Koerner v. State of New York, 62 N.Y.2d 442, 478 N.Y.S.2d 584, 467 N.E.2d 232,
233-34 (1984) (holding that the three year statute of
limitations applies to discrimination claims under the NYSHRL).
New York law provides for a shorter statute of limitations for
claims against schools, school districts, and boards of education. N.Y. Educ.
Law § 3813(2-b) ("[N]o action or special proceeding shall be commenced
against any [school, school district, board of education, or an `officer of a
school district, board of education, board of cooperative educational services,
or school provided for in article eighty-five of this chapter or chapter ten
hundred sixty of the laws of nineteen hundred seventy-four'] more than one year
after the cause of action arose."). The shorter statute of limitations
also applies to an "officer of a school district, board of education,
board of cooperative educational services, or school provided for in article
eighty-five of this chapter or chapter ten hundred sixty of the laws of
nineteen hundred seventy-four." N.Y. Educ. Law § 3813(1). "Article 85
schools are statutorily designated `special schools,' including schools for the
instruction of the deaf and blind, as are schools governed by Chapter 1060
under the 1974 laws." Richards v. Calvet, No.
99 Civ. 12172, 2005 WL 743251, at *13 (S.D.N.Y. Mar. 31, 2005) (holding
that section 3813(1) does not apply to those claims against school principal
because he is not an "officer" within the meaning of the statute).
Principals and other school administrators are not officers of a
board of education; unless these administrators are employed at the special
schools specified by the statute, claims against them are not subject to the
one year statute of limitations. Id.; see also Fierro v. City of New York, 591 F.Supp.2d 431, 447 (S.D.N.Y. 2008) (holding
that plaintiff's claims against the school principal are not barred by one-year
statute of limitations because the principal "is not an officer within the
meaning of section 3813"), rev'd on other grounds, 341 Fed.Appx. 696 (2d Cir.2009).
Plaintiff's claims against the DOE under the NYSHRL and the
NYCHRL are subject to the one year statute of limitations. Id.; Amorosi v. South Colonie Ind. Cent. Sch. Dist., 9 N.Y.3d 367, 849 N.Y.S.2d 485, 880 N.E.2d 6, 10
(2007) ("[T]he one-year limitation prescribed in Education
Law § 3813(2-b) should govern discrimination claims against a school
district.").
The shorter statute of limitations does not apply to plaintiff's
claims against Smith or Walsh. Defendants, as the moving party, have the burden
of coming forward with evidence demonstrating that Smith and Walsh are
"officers" of a board of education or special school as defined by
section 3813. They have failed to do so.
B. Time Bar Only Applies to NYSHRL Claims
Against DOE
Since the instant action was filed on July 26, 2010, under a
strict application of the statute of limitations, claims against the DOE for
discriminatory acts that occurred before July 26, 2009 would be time barred.
Plaintiff urges that actions that occurred prior to this date can nevertheless
be considered under the continuing violations doctrine. Under this doctrine,
when a plaintiff experienced a "continuous practice and policy of
discrimination, ... the commencement of the statute of limitations period may
be delayed until the last discriminatory act in furtherance of it." Gomes v. Avco Corp., 964
F.2d 1330, 1333 (2d Cir.1992); see also Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001).
250*250 In 2002, the
Supreme Court limited this long-standing rule as it applies federal employment
discrimination claims, holding that the continuing violation exception did not
apply to discrete, time-barred incidents, even where those incidents were
related to actionable ones:
[A] Title VII plaintiff raising claims of
discrete discriminatory or retaliatory acts must file his charge within the
appropriate time period.... A charge alleging a hostile work environment claim,
however, will not be time barred so long as all acts which constitute the claim
are part of the same unlawful employment practice and at least one act falls
within the time period.
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122, 122 S.Ct. 2061, 153 L.Ed.2d 106
(2002). It defined a "discrete act" as an action such as
"termination, failure to promote, denial of transfer, or refusal to
hire" that "constitutes a separate actionable `unlawful employment
practice.'" Id. at 114, 122 S.Ct. 2061. The continuing violations
doctrine was available in harassment claims, by contrast, because "[t]he
`unlawful employment practice' ... cannot be said to occur on any particular
day. It occurs over a series of days or perhaps years and, in direct contrast
to discrete acts, a single act of harassment may not be actionable on its
own." Id. at 115, 122 S.Ct. 2061.
1. NYSHRL Discrimination Claims Against DOE
Time Barred
The narrower definition of the continuing violations doctrine
under Morgan applies to plaintiff's discrimination claims
under state law. E.g. Milani v. International Business Machines Corp., Inc., 322 F.Supp.2d 434, 452 n. 32 (S.D.N.Y.2004) (holding
that Morgan applies to NYSHRL claims). Her claims pertaining
to acts which occurred prior to July 26, 2009, including disciplinary letters
issued to plaintiff during the 2007-2008 and 2008-2009 school years; formal and
informal observations of plaintiff during the 2007-2008 and 2008-2009 school
years; plaintiff's assignments for the 2008-2009 school year, and the June 18,
2009 "U" rating, are time barred and are dismissed.
2. NYCHRL Claims Against DOE Timely
Although earlier decisions applied Morgan to
NYCHRL claims, e.g. Milani, 322
F.Supp.2d at 452 n. 32, New York state courts have since held
that the prior, more generous, continuing violations doctrine continues to
apply to claims under that statute, Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 872 N.Y.S.2d 27, 35 (1st Dep't 2009).
Otherwise time-barred discrete acts can be considered timely "where
specific and related instances of discrimination are permitted by the employer
to continue unremedied for so long as to amount to a discriminatory policy or
practice." Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir.2001) (internal
citations and quotations omitted).
In the instant case, the allegedly discriminatory observations,
negative performance ratings, and letters to file occurring before July 26,
2009 are discrete acts. See, e.g., Valtchev v. City of New York, 400 Fed.Appx. 586, 589 (2d Cir.2010) (holding
that negative evaluations are discrete acts which do not trigger the continuing
violation exception); Siddiqi v. N.Y.C. Health & Hosps. Corp., 572 F.Supp.2d 353, 366 (S.D.N.Y.2008) ("Each
negative performance evaluation is a discrete act."); Smith v. N.Y.C. Dep't of Educ., 09 Civ. 9256, 2011 WL 5118797, at *5 (S.D.N.Y.2011)
(Cote, J.) (holding that "an unsatisfactory rating
following a classroom observation" is a discrete act for the purposes of
the continuing violations doctrine).
251*251 Construing the
record in the light most favorable to the plaintiff, these discrete acts could
be considered part of a single, continuing policy of discrimination against
Sotomayor by defendant Walsh. He is alleged to have discriminated against
plaintiff by subjecting her to an inordinate number of formal and informal
observations, and by giving her negative ratings following those observations.
This pattern of activity could be found to have begun in the 2007-2008 school
year and continued into the 2010-2011 school year. The discriminatory conduct
is sufficiently similar to be considered part of a single policy. Compare Donlon v. Bd. of Educ. of Greece Cent. Sch. Dist., No. 06-CV-6027, 2007 WL 108470, at *4 (W.D.N.Y. Jan. 12,
2007) (holding that the continuing violation doctrine was
inapplicable where plaintiff "asserts that she was subject to a number of separate evaluations
and classroom observations during a four-year period made by distinct individuals, each
of whom is alleged to have discriminated against her," since each
event constituted a discrete act (emphasis added)).
Claims based upon Walsh's pre-July 26, 2009 acts are timely for
the purposes of plaintiff's NYCHRL discrimination claim. The DOE does not
dispute that it can be held liable for such conduct of Walsh for the purpose of
these claims.
3. NYSHRL Harassment Claim Against DOE Timely
To the extent that these discrete acts cumulatively create a
hostile work environment, the continuing violations doctrine may save these
claims under the NYSHRL. Because some of the allegedly discriminatory conduct
occurred after July 26, 2009, all of the discriminatory acts alleged may be
considered timely for the purpose of plaintiff's state law hostile work
environment claim against the DOE. See Morgan, 536
U.S. at 122, 122 S.Ct. 2061.
VII. All Discrimination and Retaliation Claims
Apply McDonnell Douglas Burden Shifting Framework
To survive a motion for summary judgment, a plaintiff claiming
discrimination under Title VII, the NYSHRL, and § 1983 must satisfy the
tripartite burden-shifting test enumerated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). E.g. Spiegel v. Schulmann, 604
F.3d 72, 80 (2d Cir.2010) (applying McDonnell Douglas to
employment discrimination claims under the NYSHRL); Leibowitz v. Cornell Univ., 584 F.3d 487, 498 n. 1 (2d Cir.2009) ("Age
discrimination claims brought pursuant to the NYSHRL ... are analyzed under the
ADEA framework, ... just as gender discrimination claims brought pursuant to
the NYSHRL ... are analyzed under the Title VII framework."); Feingold v. New York, 366
F.3d 138, 159 & n. 20 (2d Cir.2004) (reasoning that § 1983
equal protection claims parallel Title VII claims); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir.2004) (applying McDonnell
Douglas framework to § 1983 case). Retaliation claims under these
statutes are analyzed under a modified version of the same test. E.g. Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 n. 6 (2d Cir.2011) ("Retaliation
claims under Title VII are generally analyzed under a modified version of the McDonnell
Douglas test."). ADEA claims and FMLA retaliation claims are also
analyzed using the McDonnell Douglas framework. See,
e.g., Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir.2004) (applying McDonnell
Douglas framework to FMLA retaliation claim); Schnabel v. Abramson, 232
F.3d 83, 87 (2d Cir.2000) (applying McDonnell Douglas framework
to ADEA claim); see 252*252 also Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir.2010) (holding
that, even after the Supreme Court's decision in Gross v. FBL Fin. Servs., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119
(2009), the McDonnell Douglas burden-shifting
framework continues to apply to ADEA claims).
Until recently, the right to recover under the NYCHRL was
treated as congruent with the standard for similar claims under state and
federal law. See, e.g., Ferraro v. Kellwood Co., 440 F.3d 96, 99 (2d Cir.2006) ("The
standards for liability under these [state and city] laws are the same as those
under the equivalent federal antidiscrimination laws."). In 2005, the New
York City Council passed the Local Civil Rights Restoration Act of 2005, N.Y.C.
Local Law No. 85 (2005), amending the NYCHRL to "abolish parallelism
between the [NYCHRL] and federal and state anti-discrimination law." Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir.2009).
"Nonetheless, as the NYCHRL and federal Title VII address the same type of
discrimination, are textually similar, and employ the same standards of
recovery, New York courts ... resolve federal, state, and city employment
discrimination claims consistently with McDonnell Douglas Corp." Hanna v. New York Hotel
Trades Council, 18 Misc.3d 436, 851
N.Y.S.2d 818, 822 (N.Y.Cnty.Sup.Ct.2007); see also Spiegel, 604
F.3d at 80.
Pursuant to the McDonnell Douglas framework,
the plaintiff must first establish a prima facie case of
discrimination or retaliation. E.g. Leibowitz, 584
F.3d at 498. The burden shifts to the employer to articulate a
legitimate, nonretaliatory reason for the adverse employment action. Id. If
the employer can do so, the "burden shifts back to the plaintiff to
demonstrate by competent evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for
discrimination." Id. (internal quotation marks and
citation omitted). The plaintiff can sustain her burden by proving that
"the evidence in plaintiff's favor, when viewed in the light most
favorable to the plaintiff, is sufficient to sustain a reasonable finding that
[the adverse employment decision] was motivated at least in part by ...
discrimination." Tomassi v. Insignia Fin. Group, 478 F.3d 111, 114 (2d Cir.2007).
VIII. Federal Discrimination Claims Merit less
Plaintiff claims that the defendants discriminated against her
by: 1) subjecting her to more frequent classroom observations, and giving her
unsatisfactory evaluations following those observations, including unsatisfactory
year-end rating for the 2008-2009 school year; 2) writing letters to her file
regarding her behavior at an School Leadership Team meeting and the lack of
substitute lesson plans; 3) assigning her to teach classes that were not in
accord with her preference; 4) giving her an excessive teaching load; 5) giving
her a subpar room assignment for the 2011-2012 school year; 6) initially
excessing plaintiff from the school for the 2011-2012 school year, although she
was later reinstated; 7) failing to pay her for two test administration
periods; and 8) preventing her from performing "per session" work.
Sotomayor concedes that she cannot hold Smith and Walsh
individually liable for these acts under Title VII or the ADEA. Pl.'s Mem. 2.
These claims are dismissed.
Plaintiff cannot make out a prima facie case of
discrimination under federal law. The only actions allegedly taken by
defendants which were "materially adverse" to her are her inability
to procure "per session" 253*253 employment and
failure to pay her for two periods in which she was administering tests. These
incidents do not give rise to an inference of discrimination.
A. Requirements of a Prima Facie Case
Under Title VII, the ADEA, and § 1983, the plaintiff can
establish a prima facie case of discrimination by showing
that: (1) she is a member of a protected class; (2) she is qualified for her
position and was satisfactorily performing her duties; (3) she suffered an
adverse employment action; and (4) the circumstances give rise to an inference
of discrimination. E.g. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.2000); Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000). A
claimant bringing suit under the ADEA must further demonstrate that age was not
just a motivating factor behind the adverse action, but the "but-for"
cause of it. Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 2350-51, 174 L.Ed.2d
119 (2009). The plaintiff's burden of proof at this stage is
minimal. See Graham, 230
F.3d at 39.
1. Protected Class
Sotomayor is a non-Caucasian woman over fifty of Hispanic
national origin. Defendants do not dispute that plaintiff is a member of a
protected class under the relevant statutes. See, e.g., 29
U.S.C. § 631(a) (protecting "individuals who are at least 40 years of
age"); 42 U.S.C. § 2000e-2(a)(1) ("It shall be an unlawful employment
practice for an employer ... to ... discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's race ... or national origin."); 42 U.S.C. §
1983; N.Y. Exec. Law § 296(1)(a) ("It shall be an unlawful discriminatory
practice ... [f]or an employer ..., because of an individual's age, race, ...
[or] national origin, ... to discriminate against such individual in
compensation or in terms, conditions or privileges of employment.");
N.Y.C. Admin. Code § 8-107(a) (same).
2. Adverse Employment Action
In order to constitute an adverse employment action, defendants
must effect a "materially adverse change" in the terms and conditions
of employment. See Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000); Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir.1999). Such a
change must be "more disruptive than a mere inconvenience or an alteration
of job responsibilities." Terry v. Ashcroft, 336
F.3d 128, 138 (2d Cir.2003) (internal citations and quotations
omitted). Adverse employment actions include "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.
3. Satisfactory Performance
"Whether job performance was satisfactory depends on the
employer's criteria for the performance of the job — not the standards that may
seem reasonable to the jury or judge." Thornley v. Penton Pub., Inc., 104 F.3d 26, 29 (2d Cir.1997). Negative
performance evaluations can indicate that the plaintiff was not satisfactorily
performing her duties. Compare Gladwin v. Pozzi, 403
Fed.Appx. 603, 606 (2d Cir.2010) ("[Plaintiff] was never
given a negative performance evaluation, and the record shows she was deemed by
co-workers as `very effective,' `committed' and `very efficient,' thus
satisfying the second prong in demonstrating she was performing 254*254 her duties
satisfactorily."); with Mastrolillo v. Connecticut, 352 Fed.Appx. 472, 473-74 (2d Cir.2009) ("[Plaintiff]
did not establish that she performed her job satisfactorily, given the negative
performance evaluations and her admitted lack of interest in teaching certain
advanced level courses.").
4. Inference of Discrimination
"A showing of disparate treatment — that is, a showing that
the employer treated plaintiff `less favorably than a similarly situated
employee outside his protected group' — is a recognized method of raising an
inference of discrimination for purposes of making out a prima facie case." Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir.2003). A
plaintiff relying on disparate treatment evidence "must show she was
similarly situated in all material respects to the individuals with whom she
seeks to compare herself." Graham, 230
F.3d at 39.
B. No Prima Facie Case
1. Classroom Observations and Unsatisfactory
Evaluations
Criticism of an employee in the course of evaluating and correcting
her work is not an adverse employment action. Weeks v. N.Y. State Div. of Parole, 273 F.3d 76, 86 (2d Cir.2001) (holding
that notice of discipline and counseling memo insufficient to constitute
adverse employment action). While "actions such as negative employment
evaluation letters may... be considered adverse," e.g., Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir.2002), such
appraisals must generally trigger other negative consequences to the terms and
conditions of the plaintiff's employment in order to qualify as a materially
adverse change, e.g. Browne v. City Univ. of N.Y., 419 F.Supp.2d 315, 333-34 (E.D.N.Y.2005) ("A
negative evaluation alone, absent some accompanying adverse result such as
demotion, diminution of wages, or other tangible loss, does not constitute an
adverse employment action."); see also, e.g., Fairbrother v. Morrison, 412 F.3d 39, 56-57 (2d Cir.2005) (holding
that an unsatisfactory evaluation did not constitute an adverse employment
action where plaintiff did not assert that evaluation negatively altered her
compensation, benefits, or job title); Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 756 (2d Cir.2004) (holding
that the jury could reasonably find that performance evaluation and its critical
addendum did not constitute an adverse employment action where plaintiff
"offered no proof that this evaluation had any effect on the terms and
conditions of her employment" in holding that plaintiff was not entitled
to judgment as a matter of law); Solomon v. Southampton Union Free Sch. Dist., No. 08-CVI822, 2011 WL 3877078, at *9 (E.D.N.Y. Sept. 1,
2011)(holding that teacher failed to make out a prima facie case
under Title VII as she "failed to provide any evidence
that her negative evaluation affected her employment in any way, and therefore
it is not an adverse employment action"); Holder v. City of Yonkers, No. 04 CIV. 10314, 2006 WL 1582081, *6
(S.D.N.Y. June 7, 2006) (holding that teacher's "negative formal observation
evaluations and the negative annual evaluation for the 2004-05 academic
year" did not constitute adverse employment actions in violation of Title
VII).
Nor do more frequent performance evaluations qualify as an
adverse employment action. See, e.g., Hall v. N.Y.C. Dep't of Transp., 701 F.Supp.2d 318, 335-36 (E.D.N.Y.2010) ("Even
assuming that plaintiff was subjected to excessive scrutiny,... criticism and
reprimands, where, as here, such conduct did not lead to materially adverse
employment consequences, 255*255 it is not
considered actionable disparate treatment."); Castro v. N.Y.C. Bd. of Educ. Pers., No. 96 Civ. 6314, 1998 WL 108004, at *7 (S.D.N.Y. Mar.
12, 1998) ("[A]lthough ... close monitoring may cause an
employee embarrassment or anxiety, such intangible consequences are not
materially adverse alterations of employment conditions.").
Since neither the more frequent observations nor the negative
reviews of the plaintiff's work had any material consequences on the terms and
conditions of Sotomayor's employment, they are not adverse employment actions.
2. Letters to File
Like other negative performance evaluations, letters to file do
not rise to the level of an adverse employment action where, as here, they do
not trigger other adverse consequences, such as loss of pay. See Part
VIII(B)(1).
3. Teaching Preferences
In order to constitute an adverse employment action, it is not
enough that defendants' gave plaintiff a subjectively less preferred teaching
assignment; the assignment must be "materially less prestigious,
materially less suited to h[er] skills and expertise, or materially less
conducive to career advancement." Galabya, 202
F.3d at 641 (holding that plaintiff's transfer from teaching
junior high school keyboarding to special education students at one school to
teaching high school keyboarding to mainstream students at another did not
constitute an adverse employment action). Compare Rodriguez v. Bd. of Educ., 620 F.2d 362, 366 (2d Cir.1980) (holding
that plaintiff's proffered evidence that she had tailored her master's and
doctoral coursework to prepare her for teaching junior high students so that
her reassignment from teaching junior high art classes to elementary school art
classes rendered her twenty years of experience useless was sufficient to
establish an adverse employment action); with, e.g., Missick v. City of New York, 707 F.Supp.2d 336, 349 n. 5 (E.D.N.Y.2010) (refusing
to recognize plaintiff's objection to having been reassigned from teaching
younger children to teaching sixth grade as an adverse employment actions); Ticali v. Roman Catholic Diocese of Brooklyn, 41 F.Supp.2d 249, 265 (E.D.N.Y.1999) (holding
that teacher's transfer to pre-kindergarten class from first grade class was
not an adverse employment action because teacher produced "no material
evidence that her transfer obliged her to perform tasks that were less
appropriate for her skills than her prior position or adverse to her in any
other legally cognizable way").
While defendants failed to scrupulously honor each of
Sotomayor's teaching preferences, there is no evidence that her assignments
were "materially less prestigious, materially less suited to h[er] skills
and expertise, or materially less conducive to career advancement" such
that they constituted an adverse employment action. See Galabya, 202
F.3d at 641.
4. Teaching Load
"The assignment of a heavier teaching load to plaintiff for
[a given] semester does not constitute an adverse employment action." Browne, 419
F.Supp.2d at 333-34; see also, e.g., DelaPaz v. N.Y.C. Police Dep't, No. 01 Civ. 5416, 2003 WL 21878780, at *4 (S.D.N.Y. Aug.
8, 2003) (finding that the assignment of extra work to
plaintiff did not qualify as an adverse employment action); Fridia v. Henderson,No.
99 Civ. 10749, 2000 WL 1772779, at *7 (S.D.N.Y. Nov. 30, 2000) (finding
that the plaintiff's allegations of excessive work did not amount to an adverse
employment action). The reasonable work load assigned to the plaintiff does not
trigger a finding of discrimination in this case.
Mere undesirable classroom assignments generally do not rise to
the level of an adverse employment action. See, e.g., Galabya, 202
F.3d at 640 (holding that "[a]s a matter of law, the
disparity in working conditions — which reduces to the fact that teachers at
[one school] rotate through classrooms whereas teachers at [another] have their
own classrooms — may be characterized as minor" and is insufficient to
establish an adverse employment action); Klein v. New York Univ., 786 F.Supp.2d 830, 847 (S.D.N.Y.2011) ("Undesired
office assignments are not adverse employment actions.") (citing Cunningham v. N.Y.S. Dep't of Labor, 326 Fed.Appx. 617, 619-20 (2d Cir.2009); Stoddard v. Eastman Kodak Co., 309 Fed.Appx. 475, 479 (2d Cir.2009)); but
see Ximines v. N.Y.C. Dept. of Educ., Nos. 05-CV-1214, 07-CV-4390,
2011 WL 2607935, at *3-4 (E.D.N.Y. July 1, 2011) (holding, in case where
plaintiff alleged that she was assigned to a "remote dingy classroom"
for discriminatory and retaliatory reasons, that "[b]eing subjected to a
teaching environment, which was so cold that Plaintiff's ear would become
`numb,' ... rises above the level of minor annoyances' to the level of a
material adverse change in her employment conditions"). An unattractive
room in which to teach is not actionable.
6. Excessing
Had plaintiff actually been excessed, forcing her to find
employment at a new school, this could constitute an adverse employment action.
Yet she was reinstated as soon as Walsh received word that it was not necessary
to excess any of the teachers at the school. The mere potentiality that she
would be excessed is insufficient to constitute an adverse employment action,
as the terms and conditions of her employment were not impacted.
7. "Per Session" Employment and
Failure to Pay for Test Administration
While the loss of Sotomayor's opportunities for "per
session" employment, as well as the defendants' failure to pay her for
test administration, could both constitute adverse actions, nothing in the
record indicates that these actions are the result of discrimination.
Plaintiff has never been denied the opportunity to work a
"per session" job that she has applied for, nor has she been replaced
as the leader of the ESL afterschool program which she formerly led. The
starting date for the ESL program during the 2011-2012 school year was delayed.
When a vacancy notice for the position was posted in January 2012, Sotomayor
did not apply for the position. Nothing in the record indicates that the delay
was the result of discrimination, nor that Sotomayor would not have gotten the
job had she applied for it.
Her allegation that she was improperly denied pay is also
without merit. Plaintiff herself chose to use the period scheduled as her
professional period for ESL Administration as her preparation period, and to
use her scheduled preparation period as her professional period. Her grievance
was denied because the period during which she was assigned to administer the
tests was her scheduled professional period, not a preparation period.
Defendants were simply asking Sotomayor to perform the normal duties required
of her position: to administer tests during her professional period for ESL
Administration. No inference of discrimination arises from this request.
Because plaintiff cannot establish a prima facie case
of discrimination under federal law, these claims are dismissed.
IX. State Discrimination Law
Claims under the NYSHRL are analyzed under the same standards as
federal discrimination claims. E.g. Leibowitz, 584
F.3d at 498 n. 1. As noted in Part VI(B)(1), supra, only
those acts which occurred after July 26, 2009 are timely as to the DOE. The
only alleged discriminatory acts that occurred after this date are the
observations during the 2010-2011 school year; the failure to pay for
preparation periods; plaintiff's initial excessing for the 2011-2012 school
year; her unfavorable classroom assignment that year; and the "loss"
of her "per session" position. For the reasons discussed above, see Part
VIII, supra, these claims fail to make out a prima
facie case of discrimination.
None of the claims raised against Smith and Walsh are time
barred. See Part VI(A). They may be held individually liable
under state law. Pl.'s Mem. 2; see also, e.g., Tomka v. Seiler Corp., 66
F.3d 1295, 1317 (2d Cir.1995) ("[A] defendant who actually
participates in the conduct giving rise to a discrimination claim may be held
personally liable under the [NYS]HRL."). Yet for the reasons stated above, see Part
VIII(B), plaintiff has failed to make out a prima facie case
of discrimination under the NYSHRL against these defendants.
X. City Discrimination Law
A. More Liberal Standard Applies
As noted in Part VII, supra, following the 2005
amendments, the NYCHRL requires that courts give the statute an independent and
more liberal construction than its federal and state counterparts. Restoration
Act § 7 ("The provisions of this [] title shall be construed liberally for
the accomplishment of the uniquely broad and remedial purposes thereof,
regardless of whether federal or New York State civil and human rights laws,
including those laws with provisions comparably-worded to provisions of this
title, have been so construed."); see also Loeffler, 582
F.3d at 278 ("[C]laims under the City HRL must be reviewed
independently from and "more liberally" than their federal and state
counterparts."); Albunio v. City of New York, 16 N.Y.3d 472, 922 N.Y.S.2d 244, 947 N.E.2d 135,
137 (2011) (holding that the NYCHRL must be construed
"broadly in favor of discrimination plaintiff's, to the extent that such a
construction is reasonably possible"); Williams, 872
N.Y.S.2d at 30-31 ("[C]ourts [must] be sensitive to the
distinctive language, purposes, and method of analysis required by the
[NYCHRL], requiring an analysis more stringent than that called for under
either Title VII or the [NYSHRL]."). "Interpretations of New York
state or federal statutes with similar wording [only] may be used to aid in
interpretation of New York City Human Rights Law, viewing similarly worded
provisions of federal and state civil rights laws as a floor below
which the City's Human Rights law cannot fall." Id. § 1
(emphasis added).
The task of a court applying the NYCHRL is to "first
identify the provision of the City HRL [it is] interpreting and then ask, as
required by the City Council: What interpretation `would fulfill the broad and
remedial purposes of the City's Human Rights Law'?" Williams, 872
N.Y.S.2d at 37. The NYCHRL forbids:
[A]n employer or an employee or agent thereof,
because of the actual or perceived age, race, ... [or] national origin... to
discriminate against such person 258*258 in compensation or
in terms, conditions or privileges of employment.
N.Y.C. Admin. Code, § 8-107.
In light of the broad purpose of the NYCHRL, unlike under state
and federal law, plaintiff need not show that an employment action was
materially adverse. E.g. Williams, 872
N.Y.S.2d at 34 (holding there is no material adversity
requirement for a retaliation claim under the NYCHRL); Margherita v.
FedEx Exp., No. 07 CV 4826, 2011 WL 5024577, at *8 (E.D.N.Y. Oct. 20,
2011) (no material adversity requirement for a discrimination claim under the
NYCHRL). "In order to make out the [adverse action] prong of a prima facie
case of discrimination under the NYCHRL, a plaintiff must simply show that she was
treated differently from others in a way that was more than trivial,
insubstantial, or petty". See, e.g., Williams v. Regus Mgmt. Group, LLC, 836 F.Supp.2d 159, 173 (S.D.N.Y.2011) (describing
development of NYCHRL case law since 2005). Similarly, "[t]he [inference
of discrimination prong] of the prima facie case is satisfied if a member of a
protected class was treated differently than a worker who was not a member of
that protected class." Id.
Nevertheless, a plaintiff must still link the adverse employment
action to a discriminatory motivation. See Williams, 872
N.Y.S.2d at 34-35. Where a plaintiff cannot do so, her claims fail. Id.
B. Plaintiff Can Establish a Prima
Facie Case Under City Law as to Observations, Evaluations, and Letters
to File
Many of defendants' activities fall short of actionable
discrimination even under the more liberal standard of the NYCHRL because
plaintiff cannot show that she was treated differently than members of a
non-protected class. As noted in Part VIII(B)(7), above, there is no evidence
that plaintiff's "per session" employment opportunities were
diminished, or that she was denied pay for two test administration periods,
because of her race, national origin, or age. There is similarly no proof that
younger Caucasian teachers were given lighter teaching loads, or that their
teaching preferences were honored more frequently. Nor is there any indication
that Sotomayor's classroom assignments were influenced by her race, national
origin, or age. She does not claim that younger, Caucasian teachers were given
preferred classroom assignments, while the older, non-Caucasian teachers at the
school received less favorable assignments. Rather, she claims that she was
uniquely disfavored, since no other teachers were forced to share classrooms
for two consecutive years, or assigned to classrooms full of extraneous
materials and broken desks. No other evidence is cited indicating that these
actions were motivated by improper considerations.
Similarly, the mere possible excessing is too insubstantial to
constitute a change in the terms and conditions of her employment. She was not
excessed.
Plaintiff has put forward sufficient evidence to establish a prima
facie case of discrimination for her claim of discriminatory
observations, evaluations, and letters to file. While these actions do not rise
to the level of a materially adverse employment action, they are more than
merely "trivial, insubstantial, or petty." The circumstances of these
acts give rise to an inference of discrimination. It is disputed whether
non-Caucasian and/or older teachers were disproportionately subjected to
similar treatment. Plaintiff claims that she was performing her job
satisfactorily.
C. Legitimate, Non-Discriminatory Reasons
Defendants' argument is simple: "namely [that] plaintiff
deserved the review[s] 259*259[s]he got." Hunter v. St. Francis Hosp., 281 F.Supp.2d 534, 544 (E.D.N.Y. 2003).
They claim that Sotomayor was — in their legitimate, professional view — an
objectively underperforming teacher. This led her to be evaluated more
frequently and more negatively than other teachers, and caused the defendants
to issue her letters to file. This legitimate reason is sufficient to shift the
burden back to Sotomayor to show evidence of pretext.
D. No Evidence of Pretext
Plaintiff cannot show that the defendants' proffered reason is a
pretext for discrimination. While plaintiff disagrees with her performance
ratings, a "plaintiff's subjective disagreement with [his performance]
reviews is not a viable basis for a discrimination claim." Valentine v. Standard & Poor's, 50 F.Supp.2d 262, 284 (S.D.N.Y.1999).
That an evaluation is tainted by discriminatory motives can be shown if she can
point to similarly situated employee who was evaluated differently. For
example, in a Title VII case, the Court of Appeals for the Second Circuit found
that an "evaluation occurred under circumstances suggesting discriminatory
motives" where:
[Plaintiff's supervisor], who is accused of
being responsible for much of the discrimination, conducted [plaintiff]'s
evaluation after having supervised her for only a week. Despite the fact that
she had no disciplinary write-ups, he gave her a score of two out of five. A
contemporary, anonymous crewmember evaluation, instead, gave her a score of four
out of five. Moreover, at the same time [plaintiff's supervisor] evaluated
[another employee not within the protected class] ... and gave him an overall
rating of four out of five even though [that employee] was written up and
verbally counseled on numerous occasions throughout the preceding year. And
[that employee] was then promoted.
Gorzynski, 596
F.3d at 108. A discriminatory inference can be rebutted when
multiple evaluators all express dissatisfaction with the plaintiff's
performance. Baluta v. Hicksville Union Free Sch. Dist., No. 94-CV-1871, 2000 WL 335770, at *5 (E.D.N.Y. Mar. 15,
2000) (finding that use of multiple evaluators undercuts
discriminatory inference); Ralkin v. N.Y.C. Transit Auth., 62 F.Supp.2d 989, 998 (E.D.N.Y. 1999) (same); see
also Missick v. City of New York, 707 F.Supp.2d 336, 349 (E.D.N.Y.2010).
While the plaintiff has presented facts showing that
non-Caucasian and older teachers were treated as underperforming, she has not
shown that white teachers who were thought to be underperforming were treated
more favorably. The record reflects that Caucasian and younger teachers did
receive unsatisfactory ratings. See Part II(J)(4).
The evidence shows that plaintiff's unsatisfactory ratings were
based on defendants' (and others') legitimate perception of her teaching
abilities. Beginning in 2002, plaintiff was censured — including by individuals
other than the defendants — for her failure to adequately time and pace here
lessons and for the arrangement of her classroom. In the same years plaintiff
was negatively evaluated by the defendants, she also received negative
assessments from other individuals who are not accused of discrimination —
including Mann, an objective outsider. She received disciplinary letters to
file from other administrators at the school. Nor were plaintiff's performance
ratings consistently negative: She received satisfactory reviews from Walsh
prior to 2007, and was rated "satisfactory" (presumably by Walsh
and/or Smith) for her performance during 260*260the 2009-2010 and
2010-2011 school years. The observations and performance evaluations were not
used as a pretext for termination, but as a sign that Sotomayor needed further
professional assistance. Defendants provided this to her, partly by arranging for
her to meet with Ms. Mann.
Plaintiff seeks to show pretext by pointing to other facts that
allegedly show bias. Neither Walsh nor Smith made any derogatory comments to
the plaintiff or any other teacher. Walsh was on the team that initially hired
her; he wrote a letter recommending her for leadership training. She
nevertheless seeks to impute racial animus based on statements the defendants
made regarding students. Defendants argue that these statements are neutral
because they do not explicitly implicate race or national origin.
Evidence of discriminatory statements directed at others in the
presence of the plaintiff, under some circumstances, can be used to support an
inference of bias. Cf. Leibovitz v. N.Y.C. Transit Auth., 4 F.Supp.2d 144, 152 (E.D.N.Y. 1998) ("There
was sufficient evidence of widespread gender-based harassment for the jury to
find a hostile work environment to which the Authority was deliberately
indifferent" where "[p]laintiff testified that she was told of the
harassment of other women repeatedly."), rev'd 252 F.3d 179, 190 (2d Cir.2001) (noting
that "evidence of harassment directed at other co-workers can be relevant
to an employee's own claim of hostile work environment discrimination" but
holding that plaintiff "who was not herself a target of the alleged
harassment, was not present when the harassment supposedly occurred, and did
not even know of the harassment while it was ongoing [] failed to prove that an
environment existed at work that was hostile to her because of her sex").
A facially neutral remark may be derogatory in the context in which it is made.
Yet "stray remarks are insufficient to show pretext." Phillip v. City of New York, No. 09 Civ. 442, 2012 WL 1356604, at *9 (E.D.N.Y. Apr.
19, 2012); see also Lee v. N.Y. State Dept. of Health, No.
99 Civ. 4859, 2001 WL 34031217, *19 (S.D.N.Y. Apr. 23, 2001) (finding that
remarks by an employer cannot establish pretext when they are remote in time
and are unrelated to the challenged adverse employment decision).
No reasonable jury could find that Sotomayor was subjected to
more frequent classroom observations, and received negative evaluations and
letters to file, because of her race, national origin, or age. Her NYCHRL claim
must be dismissed.
XI. Hostile Work Environment Claims Are Merit
less
A. Federal and State Law
To establish a hostile work environment claim under Title VII,
ADEA, and § 1983, a plaintiff must "show that the complained of conduct:
(1) is objectively severe or pervasive — that is, creates an environment that a
reasonable person would find hostile or abusive; (2) creates an environment
that the plaintiff subjectively perceives as hostile or abusive; and (3)
creates such an environment because of the plaintiff's [race, national origin,
or age]." Patane v. Clark, 508
F.3d 106, 113 (2d Cir.2007); see also, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295
(1993); Alfano v. Costello, 294
F.3d 365, 374 (2d Cir.2002). In determining whether the conduct was
sufficiently severe or pervasive, courts look at "(1) the frequency of the
discriminatory conduct; (2) its severity; (3) whether the conduct was
physically threatening or humiliating, or a mere offensive utterance; (4)
whether the conduct unreasonably interfered with plaintiff's work; and (5) what
psychological harm, if any, resulted." Aulicino 261*261 v. N.Y.C. Dep't of Homeless Servs., 580
F.3d 73, 82 (2d Cir.2009) (internal citations and quotations
omitted). Claims under the NYSHRL are analyzed under the same standards as
similar claims under federal law. See, e.g., Patane, 508
F.3d at 115 (treating hostile work environment claims under
state law using the federal standard).
As a general rule, to constitute a hostile work environment,
"incidents must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive." Alfano, 294
F.3d at 374 (internal citations and quotations omitted).
"Isolated acts, unless very serious, do not meet the threshold of severity
or pervasiveness." Id.; see Petrosino v. Bell Atlantic, 385 F.3d 210, 224 (2d Cir.2004) ("isolated
incidents of offensive conduct (unless extremely serious) will not support a
claim of discriminatory harassment").
B. City Law
Hostile work environment claims are analyzed under the same
provision of the NYCHRL as discrimination claims. See Williams, 872
N.Y.S.2d at 37 ("There is no `sexual harassment provision'
of the law ...; there is only the provision of the law that proscribes imposing
different terms, conditions and privileges of employment based, inter alia, on
gender (Administrative Code § 8-107[l][a])."). Under the NYCHRL,
defendants' discriminatory conduct need not be "severe or pervasive"
to create an actionable hostile work environment. Id. at
39-41. "[Q]uestions of `severity' and `pervasiveness' are applicable to
consideration of the scope of permissible damages, but not to the question of
underlying liability." Id. at 38. The law is designed to
ensure "that discrimination plays no role" in the
workplace. Id. (emphasis in original). The relevant
consideration is whether there is a triable issue of fact as to whether the
plaintiff "has been treated less well than other employees" because
of her race, national origin, or age. Id. at 39.
"[D]efendants can still avoid liability if they prove [as an affirmative
defense] that the conduct complained of consists of nothing more than what a
reasonable victim of discrimination would consider `petty slights and trivial
inconveniences.'" Id. at 41. See also Nelson v. HSBC Bank USA, 87 A.D.3d 995, 929 N.Y.S.2d 259, 264 (2d Dep't
2011) (adopting the standard set forth by the First Department
in Williams).
C. Plaintiff Cannot Show Discrimination
As discussed in Parts X(C)-(D), plaintiff cannot show that a
hostile work environment was created "because of her race, age, or
national origin. Her hostile work environment claims are dismissed."
XII. No Prima Facie Case of
Retaliation Under Title VII, ADEA, NYSHRL, or NYCHRL
In order to establish a prima facie case of
retaliation under Title VII, the ADEA, the NYSHRL, and § 1983, "an
employee must show (1) participation in a protected activity known to the
defendant; (2) an employment action disadvantaging the plaintiff; and (3) a
causal connection between the protected activity and the adverse employment
action." Feingold v. New York, 366
F.3d 138, 156 (2d Cir.2004); see also Gorzynski, 596
F.3d at 110. Unlike in discrimination claims, an adverse employment
action "need not affect the terms and conditions of a plaintiff's
employment for purposes of a retaliation claim." Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712, 720 n. 1 (2d Cir.2010).
Rather,
262*262 [A] plaintiff must
show that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination. We
speak of material adversity because we believe it is important
to separate significant from trivial harms.
The essential elements of a retaliation claim under the NYCHRL
are the same, E.g. Pilgrim v. McGraw-Hill Companies, Inc., 599 F.Supp.2d 462, 469 (S.D.N.Y.2009) ("To
prevail on a NYCHRL retaliation claim, a plaintiff must show: 1) he engaged in
a protected activity; 2) his employer was aware of that activity; 3) he
suffered an action that would be reasonably likely to deter a person from
engaging in a protected activity; and 4) that there was a causal connection
between the protected activity and the action."); see also Dixon v. Int'l Fed. of Accountants, 416 Fed.Appx. 107, 110 n. 1 (2d Cir.2011) (same).
Yet the employer's conduct need not be as severe to trigger liability. Unlike
under federal and state law, the employer's actions need not be
"materially adverse" to the plaintiff, but merely "reasonably
likely to deter a person from engaging in protected activity." N.Y.C.
Admin. Code § 8-107(7); Fincher, 604
F.3d at 723; Williams, 872
N.Y.S.2d at 34 & n. 12. A decision on whether an action was
"reasonably likely to deter" the plaintiff must be made in light of
the City Council's goal of "meld[ing] the broadest vision of social
justice with the strongest law enforcement deterrent." Williams, 872
N.Y.S.2d at 32 n. 7 (internal citations and quotations
omitted).
Plaintiff has failed to show that she engaged in any
"protected activity" as defined by federal, state, or city
discrimination law. While she alleges that she was retaliated against for taking
FMLA leave, this is not a "protected activity" under Title VII, the
ADEA, the NYSHRL, or the NYCHRL. See 42 U.S.C. § 2000e-3
(making it unlawful under Title VII to discriminate against any individual
because he has opposed any practice made an unlawful employment practice
"by this subchapter" or participated in an investigation, proceeding
or hearing "under this subchapter"); 29 U.S.C. § 623(d) (making it
unlawful under the ADEA to discriminate against any individual who has made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or litigation "under this chapter"); N.Y. Exec. L. §
296(7) (making it an unlawful discriminatory practice for any person to
retaliate or discriminate against any person because she has opposed any
practices forbidden the New York State Human Rights Law); NYCHRL § 8-107(7)
("It shall be an unlawful discriminatory practice for any person engaged
in any activity to which this chapter applies to retaliate or discriminate in
any manner against any person because such person has (i) opposed any practice
forbidden under this chapter, (ii) filed a complaint, testified or assisted in
any proceeding under this chapter, (iii) commenced a civil action alleging the
commission of an act which would be an unlawful discriminatory practice under
this chapter, (iv) assisted the commission or the corporation counsel in an
investigation commenced pursuant to this title, or (v) provided any information
to the commission pursuant to the terms of a conciliation agreement made
pursuant to section 8-115 of this chapter.").
XIII. FMLA Retaliation Claim Fails
Retaliation claims under the FMLA are analyzed under the McDonnell 263*263Douglas framework. Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir.2004). In
order to make out a prima facie case, plaintiff must establish that: 1) she
exercised rights protected under the FMLA; 2) she was qualified for her
position; 3) she suffered an adverse employment action; and 4) the adverse
employment action occurred under circumstances giving rise to an inference of
retaliatory intent. Id.
Plaintiff has failed to establish a prima facie case
of FMLA retaliation. The actions taken were not materially adverse to her, even
under the more liberal standard applied to retaliation claims, since no
reasonable factfinder would conclude that they would have dissuaded a
reasonable worker from taking FMLA leave. See Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68, 126 S.Ct. 2405. Nor do
the facts give rise to an inference of discriminatory intent, as plaintiff
began receiving negative evaluations and letters to file prior to her
application for her first FMLA leave.
XIV. Conclusion
In view of the facts of this case, no reasonable juror could
conclude that Sotomayor was a victim or discrimination. The case is dismissed.
No costs or disbursements are ordered.
SO ORDERED.
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials
