05 Civ. 9353 (DLC) (S.D.N.Y. May. 10, 2007)
For Plaintiff: Rahul Manchanda, Manchanda Law Offices PLLC, New York, NY.
For Defendant: Michael A. Cardozo, Jennaydra D. Clunis, Corporation Counsel of the City of New York, New York, NY.
OPINION AND ORDER
DENISE COTE, District Judge
Plaintiff John Paulose ("Paulose"), a self-described "Asian of East Indian national origin," brings this Title VII employment discrimination action against his employer, the New York City Department of Education ("DOE"). A middle school math teacher, Paulose claims that he was given unsatisfactory performance ratings, sent racist articles, demoted to doing non-teaching work, forced to resign, and blacklisted from teaching for the DOE on the basis of his race and national origin. He also contends that he experienced retaliation for reporting incidents of sexual misconduct and discrimination. Finally, while Paulose did not separately allege in his complaint that he was subjected to a hostile work environment on the basis of race or national origin, he now presses such a claim as related to the allegations in the complaint and it is properly considered on the instant motion. The plaintiff brings these claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e- 2 to 2000e-3 ("Title VII"); the New York State Human Rights Law, N.Y. Exec. Law § 296 ("State HRL"), and the New York City Human Rights Law, N.Y.C. Code § 8-107 ("City HRL"). For the following reasons, DOE's motion for summary judgment is granted.
Although plaintiff's complaint does not allege discrimination based on national origin, the parties' submissions on this motion consider plaintiff to have made this allegation.
The defendant argues that Paulose is prohibited from bringing a hostile work environment claim because he did not bring such a claim in his complaint before the New York State Division of Human Rights ("NYSDHR") or the complaint in the instant action. Claims that were not asserted before an administrative agency "may be pursued in a subsequent federal court action if they are reasonably related to those that were filed with the agency."Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 177 (2d Cir. 2005) (citation omitted). "Reasonably related conduct is that which would fall within the scope of the [administrative] investigation which can reasonably be expected to grow out of the charge that was made." Id. (citation omitted). Paulose's complaint before the NYSDHR asserted that he suffered from "harassment," that he was a "constant target for racial threats from other teachers/co-workers," and that one teacher in particular subjected him to "constant verbal threats." A hostile work environment claim is reasonably related to such allegations. While Paulose did not separately plead a hostile work environment claim in his complaint, its allegations generally put the defendant on notice of the claim and the defendant has not shown that it has been prejudiced by the plaintiff's failure to plead it more formally.
The plaintiff's complaint states at one point that N.Y.C. Code § 8-101 ("Section 101") is the relevant provision of the code, and later that N.Y.C. Code § 8-107 ("Section 107") is the applicable provision. Section 101 sets forth a policy against "prejudice, intolerance, bigotry, and discrimination, bias-related violence or harassment and disorder" and establishes the New York City Commission on Human Rights. Section 107 prohibits employers and their agents from engaging in "[u]nlawful discriminatory practices," such as "to refuse to hire, or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment." N.Y.C. Code § 8-107(a). Section 107 is the relevant section of the code.
The following facts, drawn from the record the parties have presented on summary judgment, are undisputed or taken in the light most favorable to the plaintiff, unless otherwise indicated. Paulose is a United States citizen born in Teekoy, India. Prior to joining the teaching staff of Community Intermediate School 339 ("CIS 339"), a middle school in the Bronx and in District Nine and Region One of the DOE, he earned both a bachelor of science degree in economics with a minor in mathematics and a master's degree in economics from the State University of New York Albany. Paulose subsequently worked in the financial services industry.
The defendant argues that the plaintiff's Local Civil Rule 56.1 Statement of Undisputed Facts ("56.1 Statement") is improper and should be rejected because it does not provide numbered paragraphs that admit or deny the facts set forth in the corresponding paragraphs of the movant's 56.1 Statement. In the alternative, the defendant urges the Court to accept its reply to the plaintiff's 56.1 Statement. Following briefing on the instant motion, the plaintiff requested the opportunity to submit an Amended 56.1 Statement to correct any deficiencies. While the plaintiff's 56.1 Statement does not specifically state "admit" or "deny" in each numbered paragraph, it sets forth the plaintiff's understanding of the facts of this case in numbered paragraphs that correspond to those in the defendant's 56.1 Statement. Although it is cumbersome, the plaintiff's submission fulfills the function of a 56.1 Statement and is deemed admitted, as is the defendant's Reply 56.1 Statement. Plaintiff's request to submit an Amended 56.1 Statement is therefore denied as moot.
In July 2003, the plaintiff applied for the master's program in education at Mercy College. That same month, Charles Randina ("Randina"), the principal of CIS 339, nominated Paulose for a probationary position as a math teacher in the school. Paulose worked with a math teacher at CIS 339 on a voluntary basis over the summer to learn how to teach. Soon thereafter, Paulose secured a two-year "conditional" license from the DOE to teach math in New York City junior high schools, effective starting on September 2. The plaintiff assumed the position of a probationary math teacher for the sixth grade in September 2003.
A. 2003 Evaluations of Plaintiff's Teaching
In October 2003, Randina conducted the first evaluation of the plaintiff's teaching by observing him during a lesson. In his written report of the observation, he rated the plaintiff's performance unsatisfactory. While Paulose did not formally contest this rating, he indicated to Randina that it was unfair to observe him without giving him prior notice and reported this concern to his union representative. Paulose testified that Randina responded, "I'm the one in charge, I'm allowed to do as being pleased [sic] to do surprised inspection." Two months later, in December 2003, assistant principal James Williamson ("Williamson"), Paulose's immediate supervisor, gave the plaintiff a satisfactory review after observing his class.
The parties dispute the date on which Randina conducted his first observation of plaintiff's teaching, but agree that it took place in October 2003.
In the plaintiff's deposition, defense counsel inquired whether Paulose complained to Randina and his union representative about the lack of a pre-observation report in October 2005. The plaintiff responded in the affirmative to these questions and did not correct the date. In light of the fact that the observation at issue took place in October 2003 and that Paulose left CIS 339 in April 2004, it appears that both plaintiff and defense counsel mischaracterized the date of this report.
B. Purported Misconduct at CIS 339
In January 2004, Paulose became aware of alleged acts of misconduct at CIS 339, including sexual misconduct and racial discrimination, through conversations with two students, Williamson, and another teacher at the school. In mid-January, two female students asked Paulose if it was "normal for a teacher to have sex with students," and whether he would "do something like that." Paulose was shocked by their questions. He responded that such acts were "sick" and "disturbing" and indicated that these actions should be "severely punished."
The plaintiff expressed his concerns to several teachers and in January 2004 to Williamson. Williamson told Paulose that at CIS 339 "there were teachers who would verbally threaten other students, threaten administration" and that one teacher "allowed a student to be molested" by a fellow student. Williamson also stated that this particular student's abuse of another student was allegedly "covered up" by Randina, who removed the victim from the school, but did not take any disciplinary action against the offending student. In his January 2004 conversation with Williamson, Paulose also learned that Principal Randina systematically targeted African-American teachers for removal from the school.
While the defendant denies that Williamson made these statements, it has not provided any evidence to controvert these facts, which are drawn from plaintiff's deposition testimony.
C. 2004 Unsatisfactory Evaluations
On January 29, Randina made a third observation of Paulose's teaching and subsequently issued a second written report deeming his lesson unsatisfactory. The next day, on January 30, Daisy Altreche ("Altreche"), the assistant principal of CIS 339, conducted a final observation of Paulose's teaching that resulted in a third unsatisfactory rating.
While this written observation is dated January 28, 2004, both the plaintiff and defendant agree that Randina observed Paulose on January 29.
Plaintiff's deposition and affidavit are contradictory as to whether the events described as taking place on January 30 transpired on that date, February 1, or February 2.
That same day, the plaintiff was taken out of his classroom and called into Randina's office in the presence of Altreche and his union chapter leader, Robert Levine ("Levine"). Levine told Paulose that it was in his best interest to resign. At the request of Randina, Altreche and Levine, the plaintiff signed a resignation letter, which was backdated to January 22. The letter indicated that Paulose was resigning due to "unforeseen family problems" and that his resignation would be effective as of January 30. Later that day, Paulose visited the office of his union in the Bronx where Mr. Katz, a United Federation of Teachers representative, told him to return to work the following school day. The plaintiff rescinded his resignation in writing, indicating that the resignation letter had been presented to him "[u]nder duress," and without proper counsel or due process.
While the plaintiff stated in his affidavit that he rescinded his resignation on February 2, his rescission letter is dated January 30.
On February 2, Randina issued a letter indicating that Paulose's position as a probationary math teacher was jeopardized by his receipt of three unsatisfactory observation reports. Randina reassigned Paulose to a non-teaching position in the main office of the school.
Defendant's initial Rule 56.1 Statement states that Randina reassigned Paulose on February 1, while Randina's letter of reassignment is dated February 2.
D. Alleged Racial Discrimination at CIS 339
After he rescinded his resignation letter, Paulose spoke with Williamson, who told him that Randina, Altreche and Levine had sought to convince him to sign the resignation letter in an effort to remove him because he was not white. Williamson also indicated that Randina sought to replace Paulose with an inexperienced, unlicensed teacher whom he preferred and wanted to assist in securing a teaching license and other requirements.
Paulose noticed that after his rescission of the letter of resignation, "most teachers avoided him when they saw [him]." During the first two weeks following his reassignment to the main office, Paulose was confronted by two unnamed white eighth grade teachers. In two separate incidents, these teachers stated in front of Paulose, "Indians should not be here," "that guy didn't resign," "he cannot teach, he should not be here," and "you should not be here teaching, what the hell is wrong with you?" Paulose did not respond, but felt intimated. As a result, he kept a distance from other staff members and worked "in a room or closet all by [him]self" when completing his work.
Paulose has not identified the teachers who made these statements.
A teacher by the name of "Mr. Schwartz" ("Schwartz") replaced Paulose in his former classroom. After Schwartz began teaching the class, the number of students was reduced from 30 to 19. In his first four months of teaching, Schwartz was observed twice and received one unsatisfactory rating. Schwartz was offered a sample math lesson plan by Patricia Fusco, the school's math coach, in case he did not already have one.
Neither party has submitted evidence as to Schwartz' race, ethnicity, national origin, or current employment status.
The parties have not submitted any other information as to Schwartz' qualifications for the sixth grade math teacher position.
In February, Paulose spoke with a CIS 339 teacher who told him that Randina directed the students of an African-American teacher to write letters reporting that she cursed in class, and then supposedly used these letters to remove the teacher from the school. Paulose later contacted this teacher directly to discuss the circumstances of the termination of her employment.
E. Plaintiff's Complaints to DOE Officials
During this time, Paulose wrote to DOE officials regarding his grievances. On February 12, Paulose complained to the Region One Superintendent in charge of CIS 339, Irma Zardoya ("Zardoya"), about the unsatisfactory observations of his teaching and the events surrounding his reassignment from teaching to office work. In letters he handed to Randina's secretary and Levine on February 22, Paulose contested the unsatisfactory observation reports dated January 28 and 30, emphasizing the positive aspects of his performance during both lessons, objecting that he was not given a math mentor or provided pre-observation conferences, and arguing that his last two observations were administered back to back.
During the week of February 22, union representative Levine sent Paulose a New York Times article entitled, "The Newest Road to the American Dream: The Heir to the Chinese laundry, the Greek diner and the Korean deli? The South Asian cellphone store." The article discussed the entrance of Indian immigrants into the New York City cellphone industry.
Almost four weeks after his reassignment to office work, Paulose notified DOE for the first time of his concerns regarding student sexual misconduct at the school and the administration's failure to report or address it. On February 27, Paulose emailed Zardoya and Chancellor Joel Klein ("Chancellor") to seek an "Internal Independent Investigation at CIS 339" of "instances of sexual molestation of students by students being swept under the table." In these emails, Paulose also complained that he was not given "unmentionable administrative support" extended to other teachers. Making his first reference to race discrimination, he noted that a source informed him that the true motivations behind his reassignment were that "the principal's relative needed a job" and that Randina "does the same thing to people of minority origin every year." There is no evidence that these officials responded to these emails.
Plaintiff states in his 56.1 Statement that he first alerted Zardoya and the Chancellor to "improper conduct" at CIS 339 on February 2 through "letters which are undated and an email to the Region One Superintendent." To support this fact, Paulose submits an undated letter that he wrote to Zardoya, which refers to the termination of his employment from CIS 339 on April 2 in the past tense. Not only could this letter not have been written on February 2, it does not report any purported cover up of sexual misconduct at CIS 339. It is focused solely on Paulose's complaints about the circumstances surrounding his negative performance ratings, the termination of his employment, and an allegation that the transfer of "disruptive" students out of his former class is indicative of race discrimination. The letter, moreover, is identical (save the absence of any date) to an April 14 letter from the plaintiff to Zardoya, which was submitted by both parties.
The defendant contests this fact, but has not provided any evidence that these or any other DOE officials responded to Paulose's emails.
F. Plaintiff Leaves CIS 339
On March 3, Randina completed an annual performance review of Paulose in which he recommended the discontinuance of the plaintiff's probationary employment. That same day, Yvonne Torres, the Superintendent of District Nine, issued a letter indicating that she would review Paulose's record for consideration of whether his probationary employment should be terminated on April 5.
This review reported the three unsatisfactory observations of plaintiff's teaching in October 2003 and January 2004, but did not report the satisfactory review by Williamson in December 2003.
Shortly thereafter, Levine sent plaintiff a March 14 New York Times article entitled, "Corporate America Sending More Legal Work to Bombay." Paulose felt that Levine's action was inappropriate and a way of "telling [him] not to be a teacher in New York City or not to even be in this country."
Sometime in March 2004, at a meeting between Paulose, Levine, Randina, and Kathy Tuttle, the Superintendent of District Nine, Tuttle permitted Randina to read the plaintiff's emails and letters to Zardoya. On March 25, Torres notified Paulose that his probationary employment would be discontinued as of the close of business on April 5, and granted him fifteen days to appeal the decision. Her letter advised the plaintiff that he would be placed on the "Inquiry List." On March 25, Paulose wrote to Torres, emphasizing his qualifications for teaching and criticizing the circumstances surrounding his reassignment and the negative evaluations of his teaching.
The plaintiff has submitted contradictory evidence as to the precise date of this meeting. At one point during his deposition, he testified that he was uncertain of the date of the meeting, but believed it took place in March 2004. Later, he testified that it was held on March 25. Paulose has also submitted a June 16, 2004 letter of complaint to the Office of Special Commissioner of Investigations in which he wrote that the meeting took place on March 9.
The DOE Inquiry List is maintained by the Office of Personnel Investigation ("OPI") in the DOE Division of Human Resources. It is "a list of names of individuals who should be closely investigated and carefully considered before hiring." Various offices throughout DOE submit "names and reasons for placement on the list" to a Monitoring Unit. The OPI administrator regularly reviews the Inquiry List to determine whether a particular DOE teaching applicant can be hired and whether the application "should receive more intensive scrutiny."
Paulose appealed his termination to the Office of Appeals and Review on April 14. There is no indication that the office responded to his letter. That same day, Paulose sent identical letters to Superintendent Zarodya and the Chancellor, emphasizing that Altreche, not his immediate supervisor, Williamson, conducted the final observation which led to his firing, that he did not receive support in implementing the "workshop model" in his teaching, and that his requests for an independent investigation were ignored. Paulose also suggested that Randina showed preference on the basis of race by favoring Paulose's successor, namely through the transfer of "disruptive and troublesome students" out of his former class. On June 16, Paulose also wrote to the Office of Special Commissioner of Investigations, requesting an independent investigation of his case. In this letter, Paulose again emphasized that at least two of the observations of his performance were not prefaced by pre-observation conferences and that he felt pressured to resign. Paulose communicated that his removal from CIS 339 "appear[ed] to be a set up," that he believed he was the victim of discrimination and unlawful termination, and that his chapter leader and union representatives were not "looking out for [his] best interest." Paulose contends that he received no response.
The defendant contests this fact but has not submitted evidence to demonstrate that the Office of Appeals and Review responded to Paulose.
During the third week of August, Levine sent Paulose a letter with a copy of an August 18 New York Times article entitled, "Financial Firms Hasten Their Move to Outsourcing." Levine wrote the plaintiff, "I hope you are having a nice summer. I thought you might be interested in this article from today's New York Times. Mr. Randina retired on August 11, 2004."
The parties disagree as to the precise date when Levine sent this article and note to the plaintiff.
G. Application for Position at Beach Channel High School
In September 2004, the plaintiff sought a position as a math teacher in Beach Channel High School ("Beach Channel"), a school in DOE Region Five. That month, he was interviewed by the assistant principal of the school and was formally nominated for a position by the principal on September 30. At the time, Paulose held an "initial" teaching certificate issued by the University of the State of New York Education Department, which permitted him to teach math to students in grades seven through twelve effective as of September 1, 2004.
Prior to receiving his "initial" teaching certificate, the plaintiff held an "intern" certificate issued by the University of the State of New York Education Department, effective on February 1, 2004.
In that very same month, September 2004, Beach Channel was designated a "school in need of improvement" ("SINI") under the federal No Child Left Behind Act ("NCLB Act"), which at the time required the school to employ only teachers who were designated "highly qualified." 20 U.S.C. § 6319(a)(1) (2003). A "highly qualified" teacher under the NCLB Act in New York is a teacher with a permanent certification. No teacher lacking a permanent certification was hired at Beach Channel in September 2004.
The plaintiff contends that to be considered "highly qualified," a teacher is obligated only to have "an acceptable credential." As support, he provides a printout from the website of the University of the State of New York, State Education Department setting forth "Definitions of `Highly Qualified' Teachers." The printout, however, does not address what is required of a New York teacher under the NCLB Act to be "highly qualified." It does not indicate that only "an acceptable credential" is necessary. The printout merely states that one way for a teacher to be "deemed `certified' for a teaching assignment in a core academic subject" is to secure an "acceptable credential" for that teaching assignment.
Acceptable credentials for a teaching assignment are
• licenses issued by the City School District of the City of New York for employment in that district; or
. . .
• currently valid teaching credentials issued by SED except for the following two credentials:
— a modified temporary license; and
— an internship certificate held by an individual who has not passed all applicable examinations.
Paulose was ultimately not extended an offer to work as a probationary teacher at the school. Based on a review conducted on September 1, 2006, Carmela Cuddy, the OPI Administrator, reviewed Paulose's records and reported that Paulose was never placed on the Inquiry List and is therefore "not prohibited from obtaining employment with the DOE if he meets other employment requirements." Cuddy also attested that there is "no indication in the records that Mr. Paulose's name has ever appeared on the Inquiry List."
Paulose speculates that he was not extended an offer by Beach Channel because he was "blacklisted" by DOE, which prevented the school from locating his record.
H. Current Work and Status
After the rejection of his application for the Beach Channel teaching position, the plaintiff worked as a real estate investment consultant in Great Neck, New York. Paulose resigned from this position because his daily commute was too long. Since June 2005, Paulose has worked as a math teacher in two schools that are not run by the DOE, Rockland Children's Psychiatric Center and Museum Middle School. At both schools, he has received satisfactory performance evaluations. In his current position at Museum Middle School, Paulose received a satisfactory annual evaluation.
Rockland Children's Psychiatric Center is a branch of the New York State Office of Mental Health.
Museum Middle School is a public middle school in the Yonkers' school system.
56Celotex Corp. v. Catrett477 U.S. 317323Sista v. CDC Ixis N. Am., Inc.445 F.3d 161169 56Sista445 F.3d at 169Anderson v. Liberty Lobby, Inc. 477 U.S. 242 248
After the completion of briefing on the instant motion, the plaintiff requested, by letter, the opportunity to file a sur-reply on the grounds that the defendant raised in reply a new issue regarding whether plaintiff challenged Randina's actions through the grievance procedure set forth in the United Federation of Teacher's collective bargaining agreement. The defendant opposed the request, noting that the issue was not first raised in reply, but in response to plaintiff's argument in opposition that Randina conducted observations of the plaintiff without due process. This issue is irrelevant to the analysis that follows. Plaintiff's request for a sur-reply is denied.
Paulose brings claims under Title VII, 42 U.S.C. §§ 2000e- 2 to 2000e-3; the State HRL, N.Y. Exec. Law § 296, and the City HRL, N.Y.C. Code § 8-107. Since the standards under these statutes are identical in all respects that are material to this motion, only the Title VII claims will be addressed below.
The standards for liability under the State and City HRL are the same as those under equivalent federal antidiscrimination statutes. Ferraro v. Kellwood Co., 440 F.3d 96, 99 (2d Cir. 2006).
I. Discrimination on the Basis of Race and National Origin
In his complaint, Paulose identifies four adverse employment actions taken against him as a result of racial discrimination. He received negative observation reports in violation of established policies, was sent "racist articles," was demoted from teaching to performing "janitorial tasks such as cleaning out and dusting closets and arranging files in the front office," and was forced to resign from teaching, as a result of discrimination on the basis of race. The defendant's submissions on the instant motion interpret the plaintiff also to allege that he suffered two additional adverse employment actions: the DOE's termination of his probationary service and its rejection of the plaintiff for the teaching position at Beach Channel. In his opposition, the plaintiff has in turn multiplied his allegations to include six more alleged adverse employment actions suffered on the basis of race and national origin.
The plaintiff's opposition alleges that the following six actions are also acts of either discrimination or retaliation: 1) the failure of the DOE to provide him a mentor as required by the New York State Education Department, 2) teaching evaluations without pre-observation hearings, 3) four observations of his teaching in the first four months of his employment, 4) racist comments toward him by "most teachers," 5) the placement of his name on the Inquiry List, and 6) his blacklisting from future DOE employment. The first three relate to his receipt of negative evaluations. The last two relate to his failure to obtain the position at Beach Channel. The racist remarks by teachers are discussed in connection with the hostile work environment claim.
An adverse employment action is a "materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities."Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (citation omitted). Such changes 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. (citation omitted).
Paulose's forced resignation does not constitute an adverse employment action because he was able to retract it shortly after it was tendered. The attempt by Randina, Altreche and Levine to secure Paulose's resignation is therefore better considered as evidence of discriminatory intent and as part of the plaintiff's hostile work environment claim, as are Levine's acts in sending the plaintiff articles on India and South Asians.
Plaintiff's disparate treatment claim will therefore be construed to allege four adverse employment actions: the negative observation reports, demotion from teaching, the termination of plaintiff's probation, and Beach Channel's failure to hire him. This section will first treat the adverse employment actions that took place while the plaintiff was employed at CIS 339 and will separately address the plaintiff's contention that he was rejected from the Beach Channel position on account of discrimination on the basis of race or national origin.
Claims of disparate treatment under Title VII are analyzed with the burden-shifting approach set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). The plaintiff bears the initial burden of establishing a prima facie case of discrimination. Williams v. R.H. Donnelley Corp., 368 F.3d 123, 126 (2d Cir. 2004). If the plaintiff succeeds, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006). The defendant's burden is "one of production, not persuasion." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). If the employer meets its burden, "the burden shifts back to the plaintiff to prove discrimination, for example, by showing that the employer's proffered reason is pretextual." Demoret, 451 F.3d at 151.
A plaintiff's burden in presenting prima facie evidence of discriminatory treatment is de minimis, Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001), but the plaintiff must nonetheless establish that
(1) he is a member of a protected class; (2) he is competent to perform the job or is performing his duties satisfactorily; (3) he suffered an adverse employment decision or action; and (4) the decision or action occurred under circumstances giving rise to an inference of discrimination based on his membership in the protected class.
Dawson v. Bumble Bumble, 398 F.3d 211, 216 (2d Cir. 2005) (citation omitted). With respect to the fourth element of theprima facie case, a plaintiff may meet her burden of establishing an inference of discriminatory intent through a number of means, including
the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge.
Abdu-Brisson, 239 F.3d at 468 (citation omitted). If the plaintiff seeks to carry this burden by "showing that the employer treated plaintiff less favorably than a similarly situated employee outside [her] protected group, . . . [she] must show she was similarly situated in all material respects to the individuals with whom she seeks to compare herself." Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (citation omitted). "A plaintiff is not obligated to show disparate treatment of an identically situated employee" when presentingprima facie evidence of discrimination, but the object of comparison "must have a situation sufficiently similar to plaintiff's to support at least a minimal inference that the difference of treatment may be attributable to discrimination."McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001).
A. Disparate Treatment at CIS 339: Negative Evaluations, Demotion, and End of Probation
Paulose has not established a prima facie case that the negative evaluations of his teaching, his demotion to work in the CIS 339 main office, or the termination of his probationary employment at CIS 339 constituted acts of discrimination. There is no dispute that he is a member of a protected class or that he suffered these three adverse employment actions. Nor is there any real dispute that Paulose met the de minimis showing that he was qualified for his position as a sixth grade math teacher at CIS 339. Paulose had college-level training in mathematics, a bachelor of science degree, two masters degrees, one of which was in education, and was hired by Randina to work at CIS 339. Despite the defendant's attempts to demonstrate that Paulose was not satisfactorily performing his job when he received unsatisfactory reviews, was demoted, and was subsequently discontinued as a probationary employee, the plaintiff has met the de minimis burden required at this stage for the first three prongs of the prima facie test.
Paulose fails, however, to prove that the three alleged adverse employment actions occurred under circumstances giving rise to an inference of discrimination on the basis of his race or national origin. Paulose has not pointed to any stray remarks by Randina, Altreche, or Torres — the administrators who were involved in evaluating his performance, reassigning him to non-teaching work, and deciding to discontinue his probationary employment at CIS 339 — that indicate that the plaintiff's race or national origin played a role in their decisions. Nor has Paulose identified any statements by these actors "critici[zing] [his] performance in ethnically degrading terms" or making "invidious comments" about "Asians of East Indian origin" as a whole.
While Paulose has pointed out that two unnamed white eighth grade teachers at CIS 339 made racist remarks towards him, these remarks cannot be imputed to the decisionmakers in Paulose's case, even if they are considered to be ethnically degrading or to constitute invidious comments about his protected group, which is far from clear. He has not presented any evidence that the decisionmakers were aware of or condoned the remarks. Nor do Paulose's general contentions that "most teachers" made racist comments toward him establish an inference of discrimination. "It is not sufficient merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc., 77 F.3d 603, 615 (2d Cir. 1996) (citation omitted).
Paulose's attempt to establish an inference of discrimination by identifying the more favorable treatment of Schwartz similarly fails. The plaintiff has submitted evidence in the form of his own testimony that Schwartz was given only two observation reports during his first four months in contrast to the four that Paulose received, and that one of the two evaluations returned a negative rating. The plaintiff also argues that after Schwartz assumed the position, the size of the class was dramatically reduced and disruptive students were removed. Paulose has failed, however, to submit any evidence on Schwartz's professional qualifications, racial background, national origin, or his current employment status with the DOE. Without such minimal evidence, the plaintiff has not met the de minimis burden of demonstrating that a similarly situated individual who is not a member of his protected group was treated more favorably by, for example, remaining employed at CIS 339 despite receiving a negative performance rating.
Paulose has not explained how he learned these facts or offered admissible evidence of them. Since the DOE does not dispute the accuracy of these assertions, however, they have been accepted as true for this Opinion.
Even if plaintiff had met the requirements of the prima facie case with respect to his negative evaluations, demotion, and firing, the defendant would still be entitled to summary judgment on these claims. The defendant has shown a non-discriminatory reason for its actions, to wit, the plaintiff's deficient performance. For the reasons already discussed, the plaintiff has failed to offer evidence to raise a question of fact as to whether the defendant took these actions due to an invidious motive.
The defendant raises the "same actor inference" to argue that the plaintiff has not established an inference of discrimination because the same person — Randina — hired the plaintiff and subsequently gave him negative performance ratings, demoted him, and recommended the discontinuance of his probationary employment. When the same person hires and later fires an individual who is a member of a protected class, "it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire. . . . [W]here the termination occurs within a relatively short time after the hiring there is a strong inference that discrimination was not a motivating factor in the employment decision." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir. 2000) (citation omitted) (collecting cases). It is unnecessary to address the application of the same actor inference because the plaintiff has failed to offer evidence supporting an inference of discrimination through the identification of a similarly situated person who was treated differently or any other means.
Paulose's evidence that Williamson said to him that Randina had targeted African-American teachers is unsupported by either testimony from Williamson or any evidence of the events giving rise to that charge. Similarly, Williamson's later comments to Paulose about Randina's motives for removing Paulose from his teaching position are unsupported by any evidence from Williamson that would explain the basis for concluding that Randina had a discriminatory purpose. In these and other instances, Paulose has tried to fill an evidentiary gap through a proffer of inadmissible hearsay.
B. Disparate Treatment After CIS 339: Blacklisting and Rejection from Beach Channel High School
There is no dispute that Paulose is a member of a protected class or that he was rejected from the Beach Channel position. At issue in this claim is whether plaintiff has made the second showing necessary to establish a prima facie case of discrimination: that Paulose was qualified for the position at Beach Channel. Once Beach Channel became a SINI, it was only permitted to hire and only hired teachers who had permanent certification. It is undisputed that Paulose did not have that certification at the time he applied to Beach Channel. This claim must also be dismissed.
Paulose speculates that his placement on the Inquiry List influenced Beach Channel's decision not to offer him a job. He has failed to offer evidence that his name ever appeared on the list. Even if he could produce such evidence, however, that would not alter the conclusion that this prong of his discrimination claim must be dismissed. Without evidence to raise a question of fact that he qualified for a job at Beach Channel, this dispute over the Inquiry List is immaterial.
II. Title VII Retaliation
In his complaint, Paulose alleges that he suffered the following adverse employment actions as a result of retaliation for opposing sexual misconduct and discrimination on the basis of race and national origin at CIS 339: 1) negative performance evaluations, 2) harassment, 3) demotion from teaching to clerical and janitorial work in the main office, 4) racial insults, 5) DOE inaction in response to his complaints of discrimination and retaliation, and 6) blacklisting from future DOE employment. The defendant's brief on the motion assumes arguendo that the retaliatory conduct was solely the demotion, the discontinuance of Paulose's probationary employment, and rejection for the Beach Channel position. As described above, the plaintiff's opposition brief expanded his retaliation claim to include more adverse employment actions.
Unlike a disparate treatment claim, an adverse employment action in the context of a retaliation claim is not limited to actions that affect the terms and conditions of employment. To succeed on a retaliation claim, the plaintiff must show that the action "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Kessler v. Westchester County Dept. of Soc. Servs., 461 F.3d 199, 207 (2d Cir. 2006) (citation omitted). This discussion will assume that the retaliation claim includes the following adverse employment actions: 1) the negative performance evaluations, 2) the forced resignation, 3) the demotion, 4) the placement on the Inquiry List, 5) the discontinuance of probationary employment, and g) the rejection from the Beach Channel position. The first part of this section will address the allegations that plaintiff experienced retaliation at CIS 339. The second part will highlight alleged retaliation after plaintiff left the school.
Title VII forbids retaliation against an employee for opposing any practice made unlawful by the statute. 42 U.S.C. § 2000e-3(a). Title VII provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [such employee] has opposed any practice made an unlawful employment practice by this subchapter. . . ." 42 U.S.C. § 2000e-3(a).
Retaliation claims, like other Title VII claims, are evaluated under the three-step burden-shifting analysis. Jute, 420 F.3d at 173. First, the plaintiff must make out a prima facie case; second, the defendant must articulate a non-retaliatory reason for the action; third, if the defendant meets its burden, the "plaintiff must demonstrate that there is sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764 n. 5 (2d Cir. 1998) (citation omitted). In the third step, "the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action. Jute, 420 F.3d at 173.
In order to establish a prima facie case of retaliation, an employee must show "(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action." Id. (citation omitted). With respect to the second prong of the prima facie case, "[n]either [the Second Circuit] nor any other circuit has ever held that, to satisfy the knowledge requirement, anything more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity." Kessler, 461 F.3d at 210 (citation omitted). The plaintiff is similarly required to make only a minimal showing to meet the fourth prong of the prima facie case. "The plaintiff's burden at the beginning of the case is a light one, usually demanding only that the protected activity preceded the adverse action in order to satisfy the causation requirement." Raniola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001).
A. Retaliation at CIS 339
Paulose is unable to establish the first prong of the prima facie case with respect to his claim that he experienced retaliation for reporting the cover up of student-on-student sexual misconduct at CIS 339, which he first did on February 27. Such speech does not constitute opposition to a "practice made an unlawful employment practice" by Title VII, 42 U.S.C. § 2000e-3(a). The defendant is therefore granted summary judgment on this aspect of Paulose' retaliation claim.
Paulose could only contest retaliation for challenging student-on-student sexual misconduct at CIS 339 by bringing a First Amendment retaliation claim, which would have required pleading a violation of rights protected by the First Amendment, 42 U.S.C § 1983. Skehan v. Village of Mamaroneck, 465 F.3d 96, 106 (2d Cir. 2006). The plaintiff conceded this issue in his opposition on the instant motion.
Even when reading Paulose's claim to be that he faced retaliation for reporting incidents of racial or national origin-based discrimination at CIS 339, practices deemed unlawful by Title VII itself, the plaintiff has failed to establish the second and fourth prongs of the prima facie case for three of the adverse employment actions taken against him at CIS 339 — the negative evaluations of his performance, his forced resignation, and his demotion. Paulose made his first report of racial discrimination on February 27, months after his first negative evaluation, and almost one month after his second and third negative evaluations, forced resignation, and demotion to non-teaching work in the main office. He has failed to demonstrate causation because these adverse employment actions preceded his earliest report of discrimination. The plaintiff has also failed to establish the third prong of the prima facie case for the fourth adverse employment action allegedly taken against him at CIS 339 — his placement on the Inquiry List — because he has not provided sufficient evidence that he was indeed placed on this list. While Torres' March 3 letter indicated that Paulose's name would be placed on the list, the OPI Administrator has confirmed that this action was not carried out. Summary judgment is granted to the defendant on Paulose's claim that he was given negative performance evaluations, forced to resign, demoted, and placed on the Inquiry List in retaliation for reporting discrimination on the basis of race and national origin.
Paulose's October 2003 complaints to Randina and his union representative about the lack of notice prior to his October 2003 performance evaluation were not complaints of any action made illegal by Title VII. While the plaintiff contends in his brief on the instant motion that he first complained in October 2003 about Randina's discrimination against him, the plaintiff has not submitted any evidence that would raise a question of fact on this issue.
With respect to Paulose's termination as a probationary employee, the fourth adverse action at CIS 339, the plaintiff has established a prima facie case of retaliation. In this case, his February 27 letter to Zardoya and Chancellor Klein reporting that "people of minority origin" faced discrimination at CIS 339 preceded the adverse action — Torres's March 25 decision to discontinue Paulose's probationary employment at CIS 339 — thereby establishing the first, third and fourth prongs of the prima facie case. While the parties dispute whether Randina — and presumably Torres — had personal knowledge of the plaintiff's complaints of discrimination, this dispute is immaterial to an evaluation of plaintiff's prima facie evidence. To satisfy the second prong, Paulose must only demonstrate "general corporate knowledge that [he] has engaged in a protected activity." Kessler, 461 F.3d at 210. His February 27 letter to DOE officials Zardoya and Chancellor Klein constitutes evidence that the DOE had general corporate knowledge as of that date that Paulose had reported racial and national-origin-based discrimination at CIS 339. Moreover, the DOE — not Randina or Torres — is the defendant on the retaliation claim. Plaintiff's showing of general corporate knowledge, therefore, satisfies his burden to establish a prima facie case of retaliation with respect to the sole issue of the termination of his probationary employment at CIS 339. See id. (finding that plaintiff is not required to demonstrate knowledge of the corporate agent who made the decision to terminate him to establish prima facie case of retaliation); see also Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (finding erroneous a jury instruction requiring plaintiff to demonstrate knowledge on the part of corporate agents to establish a prima facie case of retaliation).
The defendant concedes that Randina first became aware of Paulose's report as early as March 25, as the plaintiff testified in his deposition. The plaintiff contends in his brief opposing the instant motion that Randina was aware of his reports of discrimination as early as October 2003, but has failed to submit evidence to support this allegation.
Since Paulose has established a prima facie case of retaliation as to this one adverse employment action, the burden shifts to the defendant to articulate a legitimate non-retaliatory reason for its decision. The defendant has pointed to the "plaintiff's poor work performance, poor classroom management, inferior instruction, and lack of qualifications." Its argument boils down to the claim that plaintiff's work did not meet expectations at CIS 339, as supported by Randina and Altreche's negative evaluations of the plaintiff's teaching.
The plaintiff has preferred evidence attempting to show that the decision to discontinue his employment at CIS 339 was a pretext for discrimination, rather than the result of poor performance. The strongest evidence in his favor is the temporal connection between his first report of racial discrimination to Zardoya and Chancellor Klein on February 27 and Torres' March 3 letter indicating her imminent review of Paulose's file, as well as her March 25 decision to terminate his probation.
At this stage, the plaintiff may survive summary judgment only if there is a "sufficient basis for a trier of fact to doubt the persuasiveness of [the defendant's] proffered evidence and ultimately to find that the [legitimate, non-retaliatory] reasons offered by [the defendant] . . . were pretextual." Jute, 420 F.3d at 180. While a court must "construe the record in the light most favorable to [the non-moving party]," id. at 180, the plaintiff's evidence does not meet the threshold required to withstand summary judgment.
Torres' March 3 decision to review Paulose's record and her March 25 decision to terminate his probation were the predictable and direct result of the plaintiff's three negative performance evaluations and Randina's decision to remove him from teaching duties and assign him to do office work, all of which happened weeks before his complaint of discrimination. Given the weight of this historical record, a jury would be unable to conclude that the decision to terminate Paulose's probationary employment was substantially motivated by the February 27 emails to Zardoya and Chancellor Klein with their vague accusation that Randina "does the same thing to people of minority origin every year." The plaintiff has failed to proffer sufficient evidence to raise a question of fact that the DOE's legitimate, non-retaliatory reason for terminating his employment — Paulose's poor performance as a junior high math teacher — was a pretext for retaliation. Summary judgment is therefore also granted on Paulose's claim that he was discontinued from his employment at CIS 339 in retaliation for reporting discrimination prohibited by Title VII.
Torres' March 3 letter stated that her decision whether to terminate Paulose's probationary employment would be based on review of his annual performance evaluation and its supporting documentation. Randina submitted this annual evaluation on the same date and included as supporting documentation the three negative evaluations of the plaintiff issued between October 2003 and January 2004. He did not, however, include Williamson's December 2003 positive evaluation of the plaintiff's performance. While the plaintiff argues that this omission constitutes evidence of Randina's discriminatory intent, he has not argued that this omission supports the conclusion that Torres' March 25 decision to discontinue Paulose's employment was a retaliatory act.
B. Retaliation After CIS 339 — Beach Channel
For the reasons already discussed, the defendant has demonstrated that there is no question of material fact as to whether Beach Channel's decision not to hire Paulose related to the emails he sent Zardoya and the Chancellor on February 27, 2004. As a SINI, Beach Channel was not allowed to hire Paulose because he did not have a permanent teaching certification.
III. Hostile Work Environment
While Paulose does not separately allege that he was subjected to a hostile work environment on the basis of race or national origin in his complaint, this claim is related to his allegations that he was forced to resign, sent racist articles, and confronted by racist comments by other teachers in CIS 339. Unlike claims of discrimination based on disparate treatment or retaliation, a hostile work environment claim is "based on the cumulative effect of individual acts." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). Title VII is violated "when the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. at 116 (citation omitted).
Hostile work environment claims must meet both an objective and a subjective standard. Not only must the victim herself "subjectively perceive [the] environment to be abusive," but the misconduct of which a plaintiff complains also must be "severe or pervasive enough to create an objectively hostile or abusive work environment." Petrosino v. Bell Atlantic, 385 F.3d 210, 221 (2d Cir. 2004) (citation omitted). As a general matter, the conduct of which a plaintiff complains "must be sufficiently continuous and concerted in order to be deemed pervasive." Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004). "Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness." Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002).
The defendant has demonstrated that Paulose has failed to raise any triable question of fact as to whether he suffered from "severe or pervasive" misconduct at CIS 339. The January 30 meeting in which officials obtained plaintiff's forced resignation was no doubt a difficult experience. Paulose, however, has not identified any objectively unreasonable behavior toward him by any participant. Nor has he attributed racist or discriminatory comments to anyone with whom he spoke on that day. The meeting was a one-time occurrence and the plaintiff was able to withdraw his resignation immediately.
Levine's acts of mailing two articles to the plaintiff while he was still employed at CIS 339 in a non-teaching position and one four months after his discontinuance, may be interpreted as insulting or insensitive. They are not, however, sufficiently "continuous or concerted" to rise to the level of severe and pervasive abuse. Although it may have been insensitive of Levine to mail these articles to the plaintiff, "Title VII is not a general civility code." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999) (citation omitted). There are other defects to this claim as well. It is not clear that Levine's actions may be imputed to the DOE. Levine was Paulose's union chapter leader. While Paulose argues that Levine's actions also reflect Randina's sentiments, he points to no evidence to support his argument. He has not shown, for instance, that Randina even knew that Levine had sent the articles.
Paulose's effort to point to discriminatory remarks by other teachers at CIS 339 is similarly flawed. The claim that other teachers in CIS 339 made racist comments about persons of East Indian descent are devoid of any specifics other than Paulose's testimony that on two separate incidents, two white eighth grade teachers stated in his presence that "Indians should not be here," "you should not be here teaching, what the hell is wrong with you?" "that guy didn't resign," and "he cannot teach, he should not be here." He fails, however, to identify the names of the teachers who threatened or harassed him, the dates of these incidents, or any witnesses to the actions. Statements that are devoid of specifics are insufficient to defeat a properly supported motion for summary judgment. Id. "It is not sufficient merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., 77 F.3d at 615 (citation omitted). The defendant is granted summary judgment on Paulose's hostile work environment claim.
Defendant's motion for summary judgment is granted with respect to plaintiff's disparate treatment, retaliation, and hostile work environment claims. The Clerk of Court shall close this case.