Gray v. City of New York et al

Filing 55

MEMORANDUM and ORDER granting 46 Motion for Summary Judgment. The Clerk of Court is respectfully directed to close the case. Ordered by Magistrate Judge Joan M. Azrack on 12/12/2011. (Terranova, Robert).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOSEPH GRAY,
Plaintiff,
-againstCITY OF NEW YORK, THE CITY OF NEW
YORK DEPARTMENT OF EDUCATION, and
JEROD RESNICK, individually,

MEMORANDUM AND
ORDER
08-CV-2840 (NGG) (JMA)

Defendants.
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APPEARANCES:
Ambrose W. Wotorson, Jr.
Law Offices of Ambrose Wotorson
26 Court Street
Suite 1811
Brooklyn, NY 11242
Attorney for Plaintiff
Daniel Chiu
Corporation Counsel of the City of New York
100 Church Street, Room 2-170
New York, NY 10007
Attorney for Defendants
AZRACK, United States Magistrate Judge:
On July 16, 2008, plaintiff Joseph Gray filed this action against the City of New York
(“City”), the City of New York Department of Education (“DOE”), and Jerod Resnick, in his
individual capacity (collectively “defendants”). Compl., ECF No. 1. Plaintiff alleges race
discrimination and retaliation in violation of 42 U.S.C. § 1981 and the Equal Protection Clause
of the Fourteenth Amendment. Second Am. Compl., ECF No. 27. Defendants have filed a
motion for summary judgment and the parties have consented to have me rule on the motion.
ECF Nos. 35, 46, 54. For the reasons explained below, the motion is granted.

Plaintiff’s primary discrimination and retaliation claims concern the termination of his
employment as a teacher after he allegedly attended a school dance while intoxicated and
attempted to dance with a student. Those claims are utterly meritless. As discussed below,
plaintiff’s misconduct at the dance was reported by multiple sources and was substantiated after
an independent investigation.
I.
A.

BACKGROUND

Plaintiff’s Employment with the DOE
Plaintiff was employed as a teacher by the DOE from 2001 through August 2005. Defs.’

Rule 56.1 Statement (“Defs.’ 56.1”) ¶ 3, ECF No. 471; Exs. to Aff. of Ambrose Wotorson in
Opp. to Defs.’ Mot. for Summ. J. (“Pl.’s Ex.”), Aff. of Joseph Gray (“Gray Aff.”) ¶ 1, Pl.’s Ex.
30, ECF No. 43. Plaintiff, who is African-American, began working as a substitute teacher in
2001 and became a full-time probationary teacher in September 2003.2 Defs.’ 56.1 ¶¶ 2-3.
Plaintiff worked at the High School of Graphic Communication Arts (“HSGCA”) for the entire
period of his employment with the DOE. Id. ¶ 4. Resnick became the principal of HSGCA in
February 2003. Id. ¶ 7. Plaintiff was eventually terminated in the summer of 2005, prior to
receiving tenure. Dep. of Joseph Gray (“Gray Dep.”) 15, Pl.’s Ex. 29.
Plaintiff had a “Performing Arts Radio” license pursuant to which he was licensed to
teach video production. Pl.’s Ex. 31; Gray Aff. ¶ 2. After plaintiff was hired as a substitute, he
taught photography, which he was teaching when Resnick began working at HSGCA in February
2003. Defs.’ 56.1 ¶ 8(b); Gray Dep. 26-28; Pl.’s Exs. 1-4. Plaintiff maintains that when he
1

All citations to defendants’ 56.1 statement refer to facts that plaintiff does not dispute. Plaintiff does not contest
26 of the 34 paragraphs in defendants’ 56.1 statement. Pl.’s Rule 56.1 Statement (“Pl.’s 56.1”), ECF No. 53.
2

Although plaintiff testified that he became a full-time probationary teacher in September 2002, multiple DOE
records indicate that he did not become a full-time probationary teacher until September 2003. Exs. to Decl. of
Daniel Chiu (“Defs.’ Ex.”), Defs.’ Ex. D, ECF No. 49; Exs. to Reply Decl. of Daniel Chiu in Further Supp. of Mot.
for Summ. J. (“Defs.’ Reply Ex.”), Defs.’ Reply Ex. C, ECF No. 51.

2

became a full-time probationary teacher, he was hired to fill the photography position left vacant
by a retiring teacher. Gray Dep. 28. However, at some point during 2003-2004 school year
(most likely at the beginning of the year), plaintiff was assigned to teach health and hygiene.
Defs.’ 56.1 ¶ 8(b); Gray Dep. 26-27. Plaintiff taught health and hygiene during the first semester
of the 2003-2004 school year and then taught at least one photography class during the second
half of that school year.3 Pl.’s Exs. 7-9; see also Second Am. Compl. ¶ 9(f) (alleging that
plaintiff taught “a Photography class” in Spring 2004 after a regular teacher went out sick).
From the beginning of his employment through the end of the 2003-2004 school year,
plaintiff received satisfactory evaluations and observation reports, including a satisfactory annual
evaluation in June 2004 signed by Resnick. Pl.’s Ex. 10; Gray Aff. ¶ 3. In 2003, Resnick also
sent two letters to plaintiff thanking him for participating in after-school activities such as the
school dance. Pl.’s Exs. 5-6. In April 2004, plaintiff was accused of corporal punishment for
calling a student “stupid.”

Defs.’ Ex. O.

Resnick, however, found the charge to be

unsubstantiated. Id.
B.

Placement in the Absent Teacher Reserve for the 2004-2005 School Year
For the 2004-2005 school year, Nancy Opitz, a white female who had been a student

teacher at HSGCA the prior year, was hired by Resnick and assigned to teach photography
classes. Defs.’ Reply Ex. B; Dep. of Jerod Resnick (“Resnick Dep.”) 34, Pl.’s Ex. 28; Gray Aff.
¶ 6; Gray Dep. 18. Unlike plaintiff, Opitz had a photography license. Resnick Dep. 34.
According to Resnick, it is “preferable” that teachers be licensed for the specific classes that they
teach. Resnick Dep. 37. Both New York State and New York City “push[ed] principals” to
ensure that all teachers possessed licenses for the classes they taught. Id. Resnick, however,

3

Although plaintiff testified that he taught photography classes every day during one semester, plaintiff does not
identify whether this occurred during the 2002-2003 school year or the 2003-2004 school year. Gray Dep. 28.

3

concedes that in 2004 and 2005 he likely had some teachers teaching courses for which they
were not licensed. Id. at 37-38.
The same year that Opitz was hired, plaintiff was “excessed” and placed in the Absent
Teacher Reserve (“ATR”).4 Defs.’ 56.1 ¶ 8(c); Gray Dep. 16, 18; Resnick Dep. 41; Defs.’ Reply
Ex. C.
Teachers are usually placed in the ATR when a school has excess staff due to reductions
in enrollment or funding. Resnick Dep. 48. Both tenured and probationary teachers can be
placed in the ATR. Id. A teacher can challenge an ATR placement by establishing that someone
with the same license and less seniority was not excessed. Id. at 49.
Placement in the ATR relegated plaintiff to serving as a full-time substitute. Resnick
Dep. 28; Gray Aff. ¶ 7. Once he was placed in the ATR, plaintiff was assigned to different
classes, Pl.’s Ex. 12, and no longer taught any photography classes full-time. Being placed in the
ATR did not decrease plaintiff’s salary or benefits. Gray Dep. 20. Plaintiff, however, maintains
that the ATR placement “took [him] off the tenure track.” Gray Aff. ¶ 7.
According to Resnick, plaintiff was excessed and placed in the ATR because there were
not enough video production classes to warrant hiring plaintiff as a full-time teacher. Resnick
Dep. 41, 44, 46. At the time, the school only had two video classes; those classes were assigned
to Elizabeth Torres, who is not African-American. Id.; Gray Aff. ¶ 8. The record does not

4

In his deposition testimony, Resnick appears to use the term “excessed” interchangeably with the concept of a
teacher being placed in the ATR. See Resnick Dep. 48-49. There is evidence indicating that plaintiff was placed in
the ATR at the beginning of the 2004-2005 school year. See, e.g., Pl.’s Ex. 12 (Nov. 8, 2004, letter from Resnick
noting that plaintiff was in the ATR at the time). However, a January 24, 2005, letter from Resnick to plaintiff states
that due to staffing reductions, plaintiff would be “declared in excess effective February 1, 2005.” Pl.’s Ex. 15.
Neither party attempts to explain this apparent discrepancy.

4

indicate which other classes Torres taught at the time. Torres, who was tenured and a full-time
teacher since 1995, had the same photography license as Opitz.5 Defs.’ Reply Ex. F.
There is a factual dispute as to whether Torres’ photography license covered the video
classes that she taught. At his deposition, Resnick testified that Torres was teaching in her
license area. Resnick Dep. 39. However, his testimony was somewhat equivocal when he was
directly asked if video classes were within Torres’ license area. Id. at 40. Also, in addition to
Resnick’s testimony, plaintiff’s affidavit asserts that Torres was teaching outside of her license
area. Gray Aff. ¶ 8.
At some point after Opitz was hired, plaintiff asked Resnick why the photography classes
were given to a white and inexperienced teacher. Gray Dep. 31; Gray Aff. ¶ 9. Plaintiff,
however, does not identify when he raised this issue with Resnick.
C.

Corporal Punishment Incidents
After an allegation of corporal punishment was raised against plaintiff stemming from an

incident on October 27, 2004, plaintiff submitted a statement detailing his version of the events.
Pl.’s Ex. 11; see also Gray Aff. ¶ 11. According to plaintiff, during class, two students had
moved their chairs out of the row and were playing cards. Pl.’s Ex. 11. When plaintiff told them
to stop and attempted to move the chairs back, one of the students held on to the chair to prevent
plaintiff from moving it. Id. The student then got “up in [plaintiff’s] face,” bumping plaintiff’s
chest and arguing with him. Id. During this confrontation, an unexpected cough struck plaintiff
and he did not have time to turn away or cover his mouth before coughing in the student’s face.
Id.

The student then became more confrontational and threatened to “get [plaintiff] after

school.” Id. Plaintiff responded, “let’s settle it now.” Id. Plaintiff followed the student towards
5

The record does not explain why Resnick hired Opitz to teach photography when Torres, who also had a
photography license, was already working at the school and was teaching at least some classes outside of her license
area. Plaintiff, however, does not raise any arguments regarding this point.

5

the classroom door; however, when the student stepped outside of the classroom, plaintiff shut
the door behind him. Id. Security then took the student away. Id. Later that day, the police
came to the school and asked plaintiff if he wanted to press charges against the student; plaintiff
declined. Gray Dep. 42. That same day, Assistant Principal Peter Mercado spoke to plaintiff
about the incident and threatened to send plaintiff to the “rubber room.”6 Gray Dep. 42-44.
Resnick also interviewed plaintiff about the allegations. Resnick Dep. 31.
On November 8, 2004, Resnick issued plaintiff a letter criticizing plaintiff’s conduct and
sustaining the allegation of corporal punishment against him. Pl.’s Ex. 12. The letter’s factual
account of the incident largely tracks plaintiff’s version of events. Id. Resnick stressed that a
teacher’s responsibility is to “de-escalate incidents” and outlined a number of ways plaintiff
could have accomplished this, including “stepping back from the student,” “turning your head or
covering your mouth when coughing,” and not using inflammatory words that indicate a
willingness to fight a student. Id.; see also Resnick Dep. 25-26 (discussing how plaintiff could
have reacted differently and the dangers inherent in the approach taken by plaintiff). Resnick’s
letter did acknowledge the difficulties that plaintiff faced as an ATR teacher who had to cover
different classes. Pl.’s Ex. 12. Nonetheless, the letter warned plaintiff that if he engaged in this
type of behavior again, he may receive an unsatisfactory rating and be terminated.

Id.

Subsequently, plaintiff sent Resnick a letter seeking to clarify that the student was aggressive and
confrontational prior to plaintiff coughing on him and that plaintiff was unable to cover his

6

During Gray’s tenure at the DOE, teachers accused of misconduct could be taken out of their schools and
reassigned to Temporary Reassignment Centers, known informally as "rubber rooms." See Steven Brill, The
Rubber Room: The Battle over New York City’s Worst Teachers, The New Yorker, Aug. 31, 2009, available at
http://www.newyorker.com/reporting/2009/08/31/090831fa_fact_brill (last visited Dec. 12, 2011); Jennifer Medina,
Last Day of ‘Rubber Rooms’ for Teachers, N.Y. Times, June 29, 2010, at A24, available at
http://www.nytimes.com/2010/06/29/education/29rubber.html (discussing elimination of “rubber rooms” in 2010)
(last visited Dec. 12, 2011).

6

mouth when he coughed because he feared that he would touch the student given their close
proximity. Pl.’s Ex. 13.
On March 18, 2005, plaintiff was involved in another incident with a student during
school hours that resulted in a sustained charge of corporal punishment. Defs.’ Ex. M (March
28, 2005, letter from Resnick to plaintiff). When plaintiff attempted to discipline a disruptive
student, the student challenged him to a fight. Id. Other students in the class reported that
plaintiff responded that he would fight the student later. Id. Plaintiff, however, insisted that he
had jokingly told the disruptive student, “I can’t fight right now.” Id. In criticizing plaintiff’s
conduct, Resnick, who interviewed plaintiff about the allegations, Resnick Dep. 31, noted that he
had previously criticized plaintiff’s use of inflammatory words during the fall 2004 incident,
Defs.’ Ex. M.
Other than noting that the student became aggressive and violent towards him, plaintiff
does not dispute the underlying facts outlined in Resnick’s March 28, 2005, letter. Gray Aff.
¶ 19. Plaintiff simply insists that he tried to defuse the situation by making a joke. Id.; Pl.’s Ex.
20.
D.

March 18, 2005, School Dance and Plaintiff’s Termination
The school held a dance on the night of Friday March 18, 2005. Although Resnick did

not attend the dance, on Monday, Resnick was informed by either Mercado or Dean Sandra
Calderon that plaintiff showed up at the dance drunk. Resnick Dep. 9-10. Resnick also learned
that a student (“Student A”) had complained that plaintiff had asked her to dance and then took
pictures of her. Id. at 10. Resnick had one of his employees report the incident to the Special
Commissioner of Investigation for the New York City School District (“SCI”). Id. SCI, which
operates independently of the DOE, is responsible for investigating corruption, conflicts of

7

interest, unethical conduct, and other misconduct in the New York City school system. See Bd.
of Ed. of the City of New York v. Hershkowitz, 308 A.D.2d 334, 337-38 (1st Dep’t 2003)
(explaining background of SCI), appeal dismissed, 2 N.Y.3d 759 (2004); SCI – NYC,
http://nycsci.org (“SCI . . . operates independently of the Chancellor and the Department of
Education.”) (last visited Dec. 12, 2011).
Within a few days of the dance, Student A, Calderon, and Michael Harmon, a school
aide, all submitted written statements. Calderon’s statement indicates that at the dance she
observed plaintiff “stumbling across the lobby.” Pl.’s Ex. 16; see also Resnick Dep. 81. Harmon
reported that during the dance students came up to him and told him that plaintiff was drunk.
Defs.’ Ex. K. When Harmon spoke to plaintiff at the dance, he noticed a strong smell of alcohol
on plaintiff’s breath. Id. Student A’s statement confirmed that plaintiff had “tried to dance with
[her].” Defs.’ Ex. J. After she told plaintiff that she did not want to dance with him, he said,
“come on [Student A] let’s dance.” Id. When she walked away, plaintiff followed her and took
pictures of her. Id.; see also Resnick Dep. 68. This made her “feel very uncomfortable.” Defs.’
Ex. J.
On March 24, 2005, Santiago Taveras, the Superintendent responsible for HSGCA,
sought to remove plaintiff from HSGCA and to have him reassigned to a regional office after
SCI investigators informed Taveras that they had substantiated the allegations against plaintiff.
Pl.’s Ex. 19 (e-mail from Taveras to Resnick and other school officials). As discussed infra, SCI
would eventually issue a formal report on June 15, 2005. Pl.’s Ex. 22. Plaintiff appears to have
been reassigned on March 28, 2005. See Defs.’ Reply Ex. D; Gray Dep. 16.

8

On May 6, 2005, plaintiff’s attorney sent a letter to an SCI investigator asserting, inter
alia, that plaintiff had a claim of “racially discriminatory treatment.” Pl.’s Ex. 21. Plaintiff’s
attorney requested that a copy of the letter be placed in “the case file.” Id.
On June 15, 2005, SCI issued a report summarizing its investigation into the March 18,
2005, dance.

Pl.’s Ex. 22.

During the investigation, SCI either interviewed or received

statements from Mercado, Calderon, Harmon, and Student A. Id. Those witnesses confirmed
the accounts that had been previously provided to Resnick. Id. Notably, Mercado reported that
plaintiff appeared to have been under the influence of alcohol at the dance and that he had
smelled alcohol on plaintiff’s breath. Id. at 2. When Mercado confronted plaintiff at the dance,
he admitted that he had been drinking, but maintained that he was not intoxicated. Id. After
Mercado instructed plaintiff to leave, plaintiff did so, but returned to the school building about
ten minutes later. Id. After Mercado again ordered him to go home, plaintiff complied. Id.
When investigators interviewed plaintiff, he admitted that, after the school day had
ended, he went to a bar/restaurant near the school and had food, a beer, and “a couple” of
margaritas.7 Id. at 3. Plaintiff left the restaurant around 9:00 p.m. and came to the school dance
in order to take pictures for the school newspaper. Id.; see also Gray Aff. ¶ 17 (stating that the
teacher in charge of the school newspaper asked him to take pictures of the dance). Plaintiff
maintained that he was not intoxicated at the time. Pl.’s Ex. 22 at 3. Plaintiff admitted taking
pictures at the dance, but could not recall asking Student A to dance or taking pictures of her.
Id.; see also Gray Dep. 61-62. At some point during the dance, plaintiff gave his camera to
another student (“Student B”). Pl.’s Ex. 22 at 3. Student B informed investigators that plaintiff
deleted some pictures from the camera in order to free up memory. Id. When investigators
7

At his deposition, plaintiff testified that he did not go the bar/restaurant immediately after school, but first attended
a union protest outside the school. Gray Dep. 58-59. There is, however, no evidence that plaintiff ever mentioned
this protest to either SCI investigators or to Resnick.

9

reviewed the pictures from the camera, they discovered three photos of Student A on the camera,
none of which were inappropriate. Id.
The SCI report only summarized the results of the investigation and did not contain any
disciplinary recommendations.
On June 16, 2005, Theresa Europe, a lawyer for the DOE, forwarded the SCI report to
Resnick.

Pl.’s Ex. 23; Resnick Dep. 52.

Europe recommended that, if Resnick believed

plaintiff was intoxicated, he should offer plaintiff the opportunity to settle the matter by
admitting that he acted inappropriately and paying a monetary fine. Pl.’s Ex. 23. Europe
believed that no further action would be necessary if plaintiff accepted this offer. Id. If plaintiff
refused the offer, Europe recommended that plaintiff be given a strong letter of reprimand
advising him that this misconduct may lead to further disciplinary action, including an
unsatisfactory rating and termination. Id. Resnick never presented plaintiff with Europe’s
suggested settlement offer. Resnick Dep. 51-52, 79.
After meeting with plaintiff on June 21, 2005, Resnick issued plaintiff a letter on June 27,
2005, indicating that plaintiff’s misconduct at the dance was “inappropriate and inexcusable,”
and could lead to an unsatisfactory rating and termination. Pl.’s Exs. 24, 26. In addition to
reviewing the SCI report, Resnick also conducted his own investigation into the matter,
interviewing Mercado, Calderon, Harmon, and Student A. Resnick Dep. 16. According to the
letter, Resnick’s investigation revealed that plaintiff was intoxicated, asked Student A to dance,
and then followed her onto the dance floor and took pictures of her. Pl.’s Ex. 26; see also
Resnick Dep. 18 (discussing Student A’s account to him).
Resnick’s June 27 letter also states that, during his meeting with plaintiff, plaintiff denied
that he was intoxicated and insisted that he only had two drinks. Pl.’s Ex. 26; see also Resnick

10

Dep. 20, 55; Gray Dep. 51. Plaintiff also denied asking Student A to dance. Pl.’s Ex. 26; Gray
Dep. 51-52; see also Gray Aff. ¶ 18. Plaintiff, however, did admit that Mercado told him that he
smelled of alcohol. Pl.’s Ex. 26. The Court notes that plaintiff’s deposition testimony regarding
his conversation with Resnick largely tracks the account of the events memorialized in the June
27 letter.8 Gray Dep. 50-52; see also Gray Aff. ¶ 17-18.
On June 29, Resnick completed plaintiff’s annual review and gave plaintiff an
unsatisfactory rating. Pl.’s Ex. 25. In justifying that rating, Resnick cited to the two corporal
punishment incidents as well as the SCI report and his own investigation into plaintiff’s conduct
at the March 18 dance. Id.; Resnick Dep. 8-9, 54.
On August 9, 2005, Taveras affirmed Resnick’s recommendation to terminate plaintiff’s
probationary employment.9 Pl.’s Ex. 27; Resnick Dep. 8, 80. According to plaintiff’s complaint,
plaintiff appealed Taveras’ decision and a review hearing was held. Second Am. Compl. ¶¶ 9(s),
(x). At the hearing, the DOE relied on Resnick’s testimony and the documentary evidence in
plaintiff’s file. Id. Based on that evidence, Deputy Chancellor Carmen Farina affirmed Taveras’
decision. Id. ¶ 9(s). Plaintiff’s unsatisfactory rating also resulted in him being placed on an
ineligible list that prevented him from teaching elsewhere. Gray Aff. ¶ 21.
E.

Procedural History
Plaintiff filed the instant suit on July 16, 2008, alleging that: (1) defendants subjected

him to race discrimination and retaliation in violation of the Equal Protection Clause and 42

8

In an affidavit submitted in opposition to summary judgment, plaintiff asserts that, at the dance, several security
guards approached him and told him that management was trying to get them to say that they had seen plaintiff
intoxicated when, in fact, they had not seen him intoxicated. Gray Aff. ¶ 16. Nothing in the record indicates that
plaintiff ever informed SCI or Resnick of this allegation.

9

The record does not clearly indicate whether Resnick’s recommendation to end plaintiff’s probation was a
separate decision or simply the inevitable consequence of Resnick’s unsatisfactory rating. Resnick’s testimony
suggests the latter. See Resnick Dep. 8 (stating that unsatisfactory evaluation was the written justification for why
plaintiff’s probation was terminated).

11

U.S.C. § 1981; and (2) that his placement on the ineligible list violated the Due Process Clause
of the Fourteenth Amendment. Defendants moved to dismiss plaintiff’s equal protection and due
process claims brought under 42 U.S.C. § 1983, but did not seek to dismiss plaintiff’s § 1981
claims. In an opinion dated September 24, 2009, Judge Nicholas G. Garaufis granted the motion
in part and denied it in part. ECF No. 25 (“Opinion”). Judge Garaufis held, inter alia, that: (1)
plaintiff failed to allege sufficient facts to state a due process claim; (2) plaintiff’s retaliation
claims were not cognizable under the Equal Protection Clause; and (3) with the exception of
plaintiff’s claims related to the two corporal punishment letters, all of plaintiff’s equal protection
claims regarding incidents that occurred prior to July 16, 2005, were barred by the three-year
statute of limitations applicable to § 1983 claims brought in New York.10 Id.
Plaintiff’s most recent complaint abandons the due process claim and the equal protection
retaliation claims. Second Am. Compl. Plaintiff, however, continues to pursue discrimination
claims under both § 1981 and § 1983 (equal protection) as well as a retaliation claim under
§ 1981. Id. Defendants now move for summary judgment.
The Court notes that plaintiff does not contend that anyone other than Resnick and
Mercado discriminated against him. Gray Dep. 17. In addition, plaintiff’s papers suggest that
Resnick is the only individual who retaliated against him.
II.
A.

DISCUSSION

Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “An issue of fact is ‘material’ for these purposes if it ‘might affect the outcome

10

In his complaint, plaintiff had alleged that he did not learn of the existence of the two letters until after July 16,
2005. Id. at 8.

12

of the suit under the governing law,’” while “[a]n issue of fact is ‘genuine’ if ‘the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.’” Konikoff v.
Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). “When ruling on a summary judgment motion, [the court] must
construe the facts in the light most favorable to the non-moving party and must resolve all
ambiguities and draw all reasonable inferences against the movant.” Dallas Aerospace, Inc. v.
CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003).
B.

Claims against the City
Defendants argue that the City is not a proper party because the DOE and the City are

separate entities and plaintiff was employed by the DOE, not the City. Plaintiff does not respond
to this argument and has, thus, abandoned all of his claims against the City. Therefore, summary
judgment is granted as to all of plaintiff’s claims against the City. Plaintiff’s only remaining
claims are his discrimination and retaliation claims against the DOE and Resnick.
C.

Timeliness
Defendants argue that the only timely claims raised by plaintiff concern plaintiff’s

termination and placement on the ineligible list. Plaintiff does not respond to defendants’ statute
of limitations argument.
As Judge Garaufis previously held, plaintiff’s equal protection claims brought under
§ 1983 are subject to a three-year statute of limitations. Opinion at 6; see also Patterson v. Cnty.
of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). Therefore, with the exception of plaintiff’s claims

13

concerning his termination and placement on the ineligible list, all of plaintiff’s equal protection
claims must be dismissed as untimely.11
Citing Patterson, defendants contend that plaintiff’s § 1981 claims are also subject to a
three-year statute of limitations. Although it appears that plaintiff’s § 1981 claims are, in fact,
governed by a four-year statute of limitations, it is unnecessary to resolve this question because,
as explained infra, all of plaintiff’s claims, even if timely, fail on the merits.12
D.

Standard Governing Equal Protection and § 1981 Claims
The parties agree that plaintiff’s equal protection and § 1981 claims are governed by the

same substantive standards and burden-shifting framework employed in cases under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). See Patterson, 375 F.3d at
225; Gertskis v. NYC D.O.H.M.H., 375 F. App’x 138, 138 (2d Cir. 2010), cert. denied, 131 S.
Ct. 2932 (2011). The only relevant exception is that, unlike under Title VII, Resnick could be
held liable in his individual capacity under both § 1981 and § 1983. Patterson, 375 F.3d at 226.
11

The dismissal of these claims on statute of limitations grounds does not ultimately affect the substantive analysis
of plaintiff’s discrimination claims set out below. As discussed infra, all of plaintiff’s § 1981 claims appear to be
timely and the substantive analyses for plaintiff’s equal protection and § 1981 discrimination claims are identical.
Moreover, although a number of plaintiff’s equal protection claims are untimely, the facts related to all of those
incidents could potentially still be considered as “background evidence” in analyzing plaintiff’s timely equal
protection claims, such as his termination. Cf. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 102 (2002)
(interpreting Title VII’s statutory scheme and permitting use of untimely “prior acts as background evidence in
support of a timely claim”). However, because the evidence plaintiff relies on is insufficient to warrant trial on his
§ 1981 discrimination claims, it is ultimately unnecessary for the Court to determine how the “background
evidence” related to plaintiff’s untimely equal protection claims should be considered in evaluating his timely equal
protection claims.
12

Although the Second Circuit stated in Patterson that there is a three-year statute of limitations for § 1981 claims
in New York, 375 F.3d at 225, Patterson did not discuss Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 373
(2004). Jones, which was decided a few months before Patterson, held that § 1981 claims based on certain actions
that occur after the formation of an employment contract, such as hostile work environments, wrongful discharges,
and refusals to transfer, are subject to a four-year statute of limitations. The applicability of Jones to the instant case
is, however, not straightforward because Jones involved a private defendant, whereas here plaintiff has brought suit
against municipal defendants and a municipal employee. See Ortiz v. City of New York, 755 F. Supp. 2d 399
(E.D.N.Y. 2010) (holding that although § 1983 provides the exclusive remedy against state actors for § 1981
violations, four-year statute of limitations is, nonetheless, still applicable to certain § 1981 claims pursued through
the “remedial vehicle” of § 1983). But see Lawson v. Rochester City Sch. Dist., --- F. App’x ----, 2011 WL
5110203, at *1 (2d Cir. Oct. 28, 2011) (citing Jones and stating, without any discussion, that the “statute of
limitations for a § 1981 claim is four years”).

14

Title VII discrimination and retaliation claims are analyzed under the three-step burdenshifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
First, plaintiff must establish a prima facie case of discrimination or retaliation.

Terry v.

Ashcroft, 336 F.3d 128, 138, 141 (2d Cir. 2003). Once plaintiff establishes a prima facie case,
the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the
adverse action taken against the plaintiff. Id. “The plaintiff then has the opportunity to prove
‘by a preponderance of the evidence that the legitimate reasons offered by the defendant were
not its true reasons, but were a pretext for discrimination’” or retaliation. Back v. Hastings on
Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir. 2004) (quoting Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981)). “At all times, the ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated against the plaintiff remains with
the plaintiff.” Westbrook v. City Univ. of New York, 591 F. Supp. 2d 207, 226 (E.D.N.Y. 2008)
(citing Burdine, 450 U.S. at 253).

“[A] reason cannot be proved to be a ‘pretext for

discrimination’ unless it is shown both that the reason was false, and that discrimination was the
real reason” for the employer’s decision. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515
(1993).
To establish a prima facie case of discrimination, plaintiff must show that he:
(1) belonged to a protected class; (2) was qualified for the position; (3) suffered an adverse
employment action; and (4) the adverse employment action occurred under circumstances giving
rise to an inference of discriminatory intent. Terry, 336 F.3d at 138.
In order to establish a prima facie case of retaliation, plaintiff must show: (1) that he
participated in a protected activity that was known to the defendant; (2) he suffered an adverse

15

employment action; and (3) that a causal connection exists between the protected activity and the
adverse employment action. Id. at 141.
E.

Discrimination Claims
Plaintiff’s discrimination claims, which turn on his attempts to compare himself to Opitz

and Torres, cannot survive summary judgment because plaintiff had neither Opitz’s photography
license nor Torres’ seniority.
1.

Prima Facie Case

Only the third and fourth elements of plaintiff’s prima facie case are in dispute.
a.

Adverse Action

“A plaintiff sustains an adverse employment action if he or she endures a ‘materially
adverse change’ in the terms and conditions of employment.” Galabya v. New York City Bd. of
Educ., 202 F.3d 636, 640 (2d Cir. 2000). “To be ‘materially adverse’ a change in working
conditions must be ‘more disruptive than a mere inconvenience or an alteration of job
responsibilities.’” Galabya, 202 F.3d at 640 (quoting Crady v. Liberty Nat. Bank and Trust Co.
of Indiana, 993 F.2d 132, 136 (7th Cir. 1993)). “A materially adverse change might be indicated
by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material responsibilities,
or other indices . . . unique to a particular situation.” Id.
The parties do not dispute that the termination of plaintiff’s employment and his
placement on the ineligible list are adverse actions. Defendants, however, contend that all of the
other actions mentioned in plaintiff’s complaint, ranging from plaintiff’s placement in the ATR
to the two findings of corporal punishment, fail to qualify as adverse actions. Plaintiff’s only
response is that his placement in the ATR qualifies as an adverse action because this “t[ook] him

16

off the tenure track” and involved a “diminution of status.” Pl.’s Mem. in Opp. to Defs.’ Mot.
for Summ. J. (“Pl.’s Br.”) at 9, ECF No. 52. As such, plaintiff concedes that the other actions in
dispute do not rise to the level of adverse actions.
For the purposes of deciding the instant motion, the Court assumes that plaintiff’s
placement in the ATR qualifies as an adverse action.

Although it appears that the ATR

placement did not, in fact, remove plaintiff from "the tenure track," see Defs.’ Reply Ex. C, the
ATR placement apparently did relegate plaintiff to being a substitute teacher without any fulltime classes. In any event, as explained infra, even assuming that the ATR placement was an
adverse action, plaintiff has failed to establish that the ATR placement or the other adverse
actions at issue were discriminatory.
b.

Inference of Discriminatory Intent

Plaintiff suggests that an inference of discriminatory intent arises because Resnick:
(1) treated him differently than Torres, who plaintiff contends was similarly situated; and
(2) replaced plaintiff with Opitz, a white teacher with less experience. However, as explained
below, plaintiff has failed to establish that the ATR placement occurred under circumstances
giving rise to an inference of discrimination. As such, plaintiff cannot establish a prima facie
case, or, for that matter, meet his ultimate burden of establishing that the actions at issue were
motivated by his race.
Plaintiff contends that he has established a prima face case based on the fact that Torres,
who was also teaching outside of her license, was not placed in the ATR. Pl.’s Br. at 11-12. “A
plaintiff may raise . . . an inference [of discrimination] by showing that the employer subjected
him to disparate treatment, that is, treated him less favorably than a similarly situated employee
outside his protected group.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). To

17

do so, a “plaintiff must show she was ‘similarly situated in all material respects’ to the
individuals with whom she seeks to compare herself.” Id. (quoting Shumway v. United Parcel
Serv., 118 F.3d 60, 64 (2d Cir. 1997)). As explained infra, plaintiff has failed to establish that
Torres was similarly situated.
The Court also notes that the fact that a “plaintiff was replaced by someone outside the
protected class will suffice for the required inference of discrimination at the prima facie stage of
the Title VII analysis.” Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir.
2001). Plaintiff, however, does not advance this specific argument and, even if he had, it does
not appear that Opitz “replaced” him when she was assigned photography classes. Although
plaintiff taught photography during the 2002-2003 school year, plaintiff was a substitute teacher
that year. Moreover, plaintiff taught health and hygiene during the first half of the 2003-2004
school year and appears to have only taught some photography classes during the second half of
the year after another teacher went out sick. In light of this evidence, it is doubtful that plaintiff
can rely on the assignment of photography classes to Opitz in order to establish the fourth
element of his prima facie case. Even assuming that plaintiff could establish a prima facie case,
as explained below, plaintiff cannot meet his ultimate burden of establishing that the ATR
placement and the other actions taken against him were discriminatory.
2.

Resnick’s Non-Discriminatory Reason

According to Resnick, plaintiff was placed in the ATR because there were not enough
video production classes to warrant hiring plaintiff as a full-time teacher.
3.

Pretext

Plaintiff cannot show that Resnick’s proffered reason for placing plaintiff in the ATR was
a pretext for discrimination.

18

As an initial matter, the Court assumes arguendo that Resnick’s hiring of Opitz and
assignment of photography classes to her were linked to Resnick’s decision to place plaintiff in
the ATR. However, plaintiff’s argument that Opitz was less experienced than plaintiff fails to
show that Resnick’s reason for placing plaintiff in the ATR was pretextual or that Resnick’s
actions were discriminatory. Opitz had a photography license and Resnick testified that New
York State and New York City “push[ed] principals” to have teachers teaching within their
license areas. Thus, because only Opitz had a photography license, the fact that she had less
experience than plaintiff teaching photography classes does not, as plaintiff suggests, establish
that he was more qualified than her to teach those classes.
Plaintiff also maintains that the fact that Torres was not also placed in the ATR is
evidence of discrimination because she and plaintiff were both teaching classes outside of their
licenses and were, therefore, similarly situated.13 However, placement in the ATR is not directly
analogous to situations such as discipline where failure to enforce a disciplinary standard equally
across employees can give rise to an inference of discrimination. Under plaintiff’s implicit logic,
either he and Torres both had to be placed in the ATR or they both had to be retained and
permitted to teach outside of their licenses. However, as Resnick explained, teachers are usually
placed in the ATR when a school has excess staff due to decreases in enrollment or funding, and
there is no evidence that HSGCA’s enrollment or finances required Resnick to place two
teachers in the ATR. As such, it is not surprising that Resnick retained Torres, who had more
seniority than plaintiff.
Ultimately, plaintiff has failed to establish that Torres was similarly situated to him in
“all material respects.” Admittedly, defendants have not clearly identified the role seniority
13

Plaintiff has not argued that because he was licensed to teach video classes and Torres was not, he should have
been retained instead of her. Rather, plaintiff’s only argument regarding Torres is that she was similarly situated to
him because she was also teaching outside of her license area.

19

plays in ATR placement decisions. Resnick, however, did testify that a teacher can challenge
placement in the ATR by establishing that someone with the same license and less seniority was
not excessed. Resnick Dep. 49. Although this testimony is not directly applicable to the instant
case given that plaintiff and Torres did not have the same license, Resnick’s testimony indicates
that seniority is a material factor in determining ATR placements. More importantly, plaintiff
bears: (1) the burden of showing that he and Torres were similarly situated; and (2) the ultimate
burden of proving discrimination. It is therefore not enough for plaintiff to point to the bare fact
that Torres was also teaching outside of her license area and was not placed in the ATR.
Plaintiff must offer evidence indicating that, for the purposes of ATR placement, Torres was
similarly situated to plaintiff in all material respects. It is plaintiff’s burden to establish that
Torres was similarly situated despite her seniority; he has failed to do so.
Plaintiff also argues that Resnick’s justification for the ATR placement—that there were
not enough video production classes to warrant hiring plaintiff as a full-time teacher—is
“flimsy” because plaintiff had been teaching photography classes, not video classes. Pl.’s Br. at
11. However, the fact that plaintiff had previously taught photography classes outside of his
license area does not undermine Resnick’s reason for the ATR placement because only the video
classes discussed by Resnick were within plaintiff’s license area.
Other than the evidence discussed above relating to the assignment of photography
classes and plaintiff’s placement in the ATR, plaintiff does not offer any additional support for
his claims that the other actions taken against him, including his termination, were
discriminatory. Therefore, given that plaintiff’s discrimination claims concerning the assignment

20

of photography classes and the ATR placement cannot survive summary judgment, all of
plaintiff’s other discrimination claims also necessarily fail.14
F.

Retaliation under § 1981
Plaintiff’s retaliation claims fail because there is no evidence undermining the reasons for

the two corporal punishment letters or for plaintiff’s termination. Plaintiff’s suggestion that
Resnick’s decisions concerning those actions were unreasonable in light of the evidence before
him is meritless. Moreover, plaintiff cannot even establish a prima facie case of retaliation based
on the May 6, 2005, letter because Resnick, the alleged retaliator, was not even aware of the
letter.
1.

Prima Facie Case
a.

Protected Activity

“In addition to protecting the filing of formal charges of discrimination, [Title VII]
protects as well informal protests of discriminatory employment practices, including making
complaints to management, writing critical letters to customers, protesting against discrimination
by industry or by society in general, and expressing support of co-workers who have filed formal
charges.” Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). However, “implicit in
the requirement that the employer have been aware of the protected activity is the requirement
that it understood, or could reasonably have understood, that the plaintiff’s opposition was
directed at conduct prohibited by Title VII.” Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp.,
136 F.3d 276, 292 (2d Cir. 1998).

14

Even if Opitz did “replace” plaintiff, that bare fact, while relevant to plaintiff’s prima facie case, has little, if any,
probative value on the ultimate question of whether plaintiff was discriminated against. See James v. N.Y. Racing
Ass’n, 233 F.3d 149, 154, 155 n.1 (2d Cir. 2000) (stating that the “[t]he requirements of the McDonnell Douglas
prima facie case are so minimal that they do not necessarily support any inference of discrimination” and using
hypothetical to illustrate that a fact-finder could not find discrimination based solely on pretext and the fact that a
plaintiff was replaced by someone outside of the plaintiff’s protected class).

21

Although defendants do not dispute that the May 6, 2005, letter from plaintiff’s counsel
to the SCI investigator meets this standard, defendants do challenge plaintiff’s questioning of
Resnick as to why the photography classes were given to a white and inexperienced teacher.
According to defendants, plaintiff’s comment does not qualify as protected activity because he
never complained that he was denied the classes because of his race. However, the Court
assumes that, viewed in the light most favorable to plaintiff, a jury could conclude that Resnick
“understood, or could reasonably have understood” plaintiff’s inquiry to be a complaint of racial
discrimination given plaintiff’s explicit reference to Opitz’s race.
b.

Adverse Action

In the retaliation context, an action constitutes an adverse employment action if the action
“could well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).
Plaintiff argues that, in addition to his termination and placement on the ineligible list, the
2004 corporal punishment letters also constitute adverse actions. Defendants do not argue to the
contrary. See Defs.’ Mem. in Supp. of Mot. for Summ. J. at 16 (“Defs.’ Br.”), ECF No. 48. As
such, the Court assumes that these letters qualify as adverse actions.15
c.

Causal Connection

The final element of a prima facie case of retaliation is a causal link between the
protected activity and the adverse action. Terry, 336 F.3d at 141. This can be demonstrated
“‘either: (1) indirectly, by showing that the protected activity was followed closely by
discriminatory treatment, or through other circumstantial evidence such as disparate treatment of

15

Although defendants argued that these letters did not qualify as adverse actions for the purposes of plaintiff’s
discrimination claims, defendants did not raise this argument with regard to plaintiff’s retaliation claims, which have
a lower standard for an adverse action than discrimination claims, Early v. Wyeth Pharm., Inc., 603 F. Supp. 2d 556,
577 (S.D.N.Y. 2009).

22

fellow employees who engaged in similar conduct; or (2) directly, through evidence of
retaliatory animus directed against the plaintiff by the defendant.’” Hicks v. Baines, 593 F.3d
159, 170 (2d Cir. 2010) (quoting Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 117 (2d Cir.
2000)).
The Second Circuit has “not drawn a bright line to define the outer limits beyond which a
temporal relationship is too attenuated to establish a [causal connection].” Espinal v. Goord, 558
F.3d 119, 129 (2d Cir. 2009) (quoting Gorman-Bakos v. Cornell Co-op Extension of
Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001)). Courts must focus on “the permissible
inferences that can be drawn from temporal proximity in the context of particular cases.”
Espinal, 558 F.3d at 129-30. Nonetheless, “district courts within the Second Circuit have
consistently held that the passage of two to three months between the protected activity and the
adverse employment action does not allow for an inference of causation.” Murray v. Visiting
Nurse Servs. of N.Y., 528 F. Supp. 2d 257, 275 (S.D.N.Y. 2007) (collecting cases).
As an initial matter, the Court notes that plaintiff does not indicate when he questioned
Resnick regarding Opitz. The Court, however, assumes that this took place sometime during
September or October 2004. See Defs.’ Br. at 17 (stating that this inquiry occurred in the fall of
2004). Because plaintiff’s complaint about Opitz (“2004 complaint”) appears to have occurred
less than two months before the November 8, 2004, corporal punishment letter, for the purposes
of plaintiff’s prima facie case, plaintiff has established a causal connection between those two
events.
Defendants, however, contend that the negative consequences stemming from plaintiff’s
conduct at the March 18, 2005, dance, including his March 28, 2005, reassignment to the
regional office and June 27, 2005, unsatisfactory review, were too temporally remote from the

23

2004 complaint to create a causal connection. Although the gap of over four months between the
2004 complaint and the above actions would, absent other evidence, preclude any causal
connection, defendants ignore the November 8, 2004, corporal punishment letter. As noted
above, there is a close temporal proximity between that letter and the 2004 complaint. If plaintiff
could establish that Resnick issued the November 8 letter in retaliation for the 2004 complaint, it
may be possible for a jury to infer a causal connection between the 2004 complaint and the
actions taken against plaintiff in the spring and summer of 2005. As such, for the purposes of
plaintiff’s prima facie case, the Court assumes that there is a causal connection between the 2004
complaint and the actions taken against plaintiff in 2005.
Before moving to the next stage of the McDonnell Douglas framework, the Court notes
that, in addition to relying on the 2004 complaint, plaintiff also contends that there is a causal
connection between the May 6, 2005, letter to the SCI investigator and the subsequent actions
taken against plaintiff in June and August of 2005. Plaintiff, however, cannot establish any
causal connection between those actions and the May 6 letter.
Critically, there is no evidence in the record from which it could be inferred that Resnick,
the relevant decision-maker, had any knowledge of the May 6, 2005, letter. Thus, Resnick could
not have possibly retaliated against plaintiff for complaining of discrimination in the May 6
letter. See Ragin v. East Ramapo Cent. Sch. Dist., No. 05-CV-6496, 2010 WL 1326779, at *25
(S.D.N.Y. Mar. 31, 2010) (holding that plaintiff’s failure to offer evidence that decision-maker
was aware of her protected activity at the time of promotion denial necessitated summary
judgment on that retaliation claim), aff’d, 417 F. App’x. 8 (2d Cir. 2011); cf. Gordon, 232 F.3d
at 117 (explaining that although corporate knowledge of a plaintiff’s complaint is sufficient to
satisfy the “knowledge” prong of a plaintiff’s prima facie case, evidence that the specific

24

decision-makers responsible for the adverse action were not aware of the plaintiff’s protected
activity is still relevant “as some evidence of a lack of a causal connection, countering plaintiff’s
circumstantial evidence of proximity or disparate treatment.”). The May 6 letter was addressed
to the SCI investigator, not Resnick. And, contrary to plaintiff’s assertion, there is no evidence
indicating that the May 6 letter was included in the documents that Resnick reviewed in
preparing the June 27, 2005, letter and unsatisfactory evaluation. Although Resnick clearly
relied on the SCI report, which was forwarded to him by Europe, there is no evidence suggesting
that Resnick ever viewed the entire SCI case file, which presumably contained the May 6 letter.
In addition, the temporal proximity between the May 6 letter and the subsequent actions
taken against plaintiff is insufficient to suggest retaliation because those actions were merely the
culmination of a logical sequence of disciplinary measures that began prior to the May 6 letter.
Cf. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001) (“Where timing is
the only basis for a claim of retaliation, and gradual adverse job actions began well before the
plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.”).
Although SCI had not yet issued its final report at the time of the May 6 letter, Taveras and
Resnick had already been informed that the SCI investigators were going to substantiate the
allegations against plaintiff and, based on that information, Taveras removed plaintiff from the
school on March 28, 2005, and transferred him to the regional office.
Finally, plaintiff argues that the May 6 letter was the “only ‘event’ that occurred between
the ‘investigation’ and Resnick’s eventual decision to terminate plaintiff.” Pl.’s Br. at 13. That
argument, however, makes little sense given that the formal SCI report was issued during this
period.

25

Plaintiff is simply unable to establish a causal connection between the May 6 letter and
any of the subsequent actions taken against him.
2.

Resnick’s Non-Discriminatory Reasons

According to Resnick, plaintiff’s conduct warranted the two corporal punishment letters.
In addition, Resnick maintains that he gave plaintiff an unsatisfactory rating based on the SCI
report, Resnick’s own investigation into the dance, and the two corporal punishment letters.
3.

Pretext

After a defendant offers its non-discriminatory reason for an adverse action, a plaintiff
“may attempt to establish that he was the victim of intentional discrimination ‘by showing that
the employer’s proffered explanation is unworthy of credence.’” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 256). “[A plaintiff] may
show pretext by demonstrating such weaknesses, implausibilities, inconsistencies, incoherences,
or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them unworthy of credence and hence infer that the employer did
not act for the asserted nondiscriminatory reasons.” Taylor v. Family Residences and Essential
Enters., Inc., No. 03-CV-6122, 2008 WL 268801, at *8 (E.D.N.Y. Jan. 30, 2008) (citations and
internal quotation marks omitted)).
It must be stressed that in discrimination and retaliation cases, “we are decidedly not
interested in the truth of the allegations against plaintiff. We are interested in what ‘motivated
the employer,’. . . the factual validity of the underlying imputation against the employee is not at
issue.” McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (internal
citation omitted). Thus, for example, “[w]here a plaintiff has been terminated for misconduct,
the question is not whether the employer reached a correct conclusion in attributing fault [to the

26

plaintiff] . . ., but whether the employer made a good-faith business determination.” Kolesnikow
v. Hudson Valley Hosp. Ctr., 622 F. Supp. 2d 98, 111 (S.D.N.Y. 2009) (citations and internal
quotation marks omitted). “[I]n the absence of evidence undermining [the employer’s] assertion
that it believed in good faith that [plaintiff’s] conduct merited discipline and termination, or of
any other evidence of pretext or discriminatory intent, [the employer] is entitled to summary
judgment.” Id.
“Evidence that an employer made a poor business judgment in discharging an employee
generally is insufficient to establish a genuine issue of fact as to the credibility of the employer’s
reasons.” Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988). However, “facts
may exist from which a reasonable jury could conclude that the employer’s ‘business decision’
was so lacking in merit as to call into question its genuineness.” Id.; see also DeMarco v. Holy
Cross High Sch., 4 F.3d 166, 171 (2d Cir. 1993) (“[I]n an ADEA or Title VII case, a plaintiff
may be able to put into question the genuineness of the employer’s putative non-discriminatory
purpose by arguing that the stated purpose is implausible, absurd or unwise.”). As discussed
infra, a number of plaintiff’s pretext arguments are premised on the notion that Resnick’s
decisions regarding plaintiff were, based on the evidence before Resnick, so unreasonable as to
suggest pretext.
Finally, it must be noted that although temporal proximity alone may be sufficient to
establish a prima facie case of retaliation, the Second Circuit has recently held that “without
more, such temporal proximity is insufficient to satisfy [plaintiff’s] burden to bring forward
some evidence of pretext.” El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010)
(per curiam).

27

a.

Corporal Punishment Letters

Plaintiff argues that he was unfairly disciplined for the incidents underlying the two
corporal punishment letters. Plaintiff, however, has not shown that Resnick’s rationales for the
letters were a pretext for retaliation. Plaintiff’s disagreement with Resnick’s evaluation of
plaintiff’s conduct is insufficient to show pretext. No reasonable jury could conclude that
Resnick’s conclusions were even unreasonable under the circumstances. The Court recognizes
that teachers have the difficult task of maintaining order in a classroom while, at the same time,
avoiding confrontations with disruptive and aggressive students.

Although, in some

circumstances, the line between inappropriate teacher conduct and effective classroom
management may not be clear, no reasonable jury could conclude that Resnick acted
unreasonably in criticizing plaintiff’s actions, including his use of potentially inflammatory
words and failure to de-escalate the situations that he faced.
b.

Other Actions Taken Against Plaintiff in the Spring and Summer of 2005

Because plaintiff has failed to establish that the November 8, 2004, corporal punishment
letter was retaliatory, there is no longer any potential causal connection between the 2004
complaint and the actions taken against plaintiff in the spring and summer of 2005.16 In any
event, even assuming that the temporal proximity between plaintiff’s protected activities (i.e., the
2004 complaint and the May 6, 2005, letter) and the actions taken against plaintiff in the spring
and summer of 2005 is sufficient to suggest some causal connection between those events,
plaintiff’s retaliation claim still fails because plaintiff has failed to establish pretext. See El
Sayed, 627 F.3d at 933.
16

In addition to relying on the November 8 letter, plaintiff also maintains that there was “an obvious change in tone
towards plaintiff after his protected activity.” Pl.’s Br. at 12. However, other than the corporal punishment letters
discussed above, plaintiff has no evidence to support this contention. For example, contrary to plaintiff’s assertion,
nothing in the record indicates that his classroom “observations became tense and fraught with criticism” after the
2004 complaint. Id. In fact, there is no evidence in the record regarding any of plaintiff’s observations during the
2004-2005 school year.

28

Plaintiff raises a number of unsuccessful arguments in attempting to establish that
Resnick’s reliance on plaintiff’s conduct at the dance was a pretext for retaliation.
First, plaintiff insists that he credibly testified that he: (1) did not ask any of the students
to dance; and (2) was not intoxicated. However, that testimony does not create a factual dispute
on the issue of pretext because the relevant question is not whether plaintiff, in fact, engaged in
the conduct at issue, but whether Resnick believed that plaintiff did and issued him an
unsatisfactory rating for non-discriminatory reasons. Given the evidence against plaintiff, which
included an independent investigation conducted by SCI, no jury could conclude that Resnick
acted unreasonably in rejecting plaintiff’s self-serving version of events and determining that
plaintiff engaged in inappropriate conduct.

Evidence from numerous sources contradicted

plaintiff’s account. And, with the exception of Mercado, plaintiff has not even alleged that those
sources discriminated or retaliated against him.
Second, plaintiff relies on the assertion in his affidavit that, at the dance, several security
guards approached him and told him that management was trying to get them to say that they had
seen plaintiff intoxicated when, in fact, they had not. Gray Aff. ¶ 16. That assertion, however, is
inadmissible hearsay.
Third, contrary to plaintiff’s argument, the evidence of student complaints to Harmon is
not hearsay. Harmon’s written statement reported that students came up to him and told him that
plaintiff was drunk. Defs.’ Ex. K. Although this evidence would not be admissible to establish
that the students’ comments were, in fact, made, it is admissible for the “non-hearsay” purpose of
establishing that Resnick, who appears to have relied on Harmon’s statement, “legitimately
believed [that plaintiff] had acted improperly.” Vahos v. Gen. Motors Corp., No. 06-cv-6783,
2008 WL 2439643, at *4 (E.D.N.Y. June 16, 2008) (holding that investigative report was

29

admissible for the “non-hearsay” purpose of proving that the decision-makers who discharged
plaintiff believed that he acted improperly); see also Wolff v. Brown, 128 F.3d 682, 685 (8th Cir.
1997) (“In employment discrimination cases, internal documents relied upon by the employer in
making an employment decision are not hearsay as that term is defined in Fed. R. Evid. 801(c) . .
. . Rather, such documents are relevant and admissible because they help explain (or may help
explain) the employer’s conduct.”).

Even assuming arguendo that Harmon’s report of the

students’ comments is inadmissible, plaintiff has not challenged the admissibility of the critical
SCI report, which contains substantial support for Resnick’s conclusion that plaintiff was
intoxicated at the dance.17
Finally, plaintiff contends, unconvincingly, that Resnick’s failure to follow Europe’s
disciplinary recommendation is evidence of pretext. Specifically, plaintiff’s brief asserts that
although Resnick initially followed Europe’s suggestion when he issued plaintiff a strongly
worded reprimand and warning, a month later, Resnick “suddenly decided” to terminate plaintiff.
Pl.’s Br. at 13.
The record evidence, however, does not support the timeline and characterization of
events set out in plaintiff’s brief. Resnick completed plaintiff’s unsatisfactory evaluation only
two days after issuing plaintiff a letter informing him that his “misconduct [at the March 18
dance] may lead to . . . an unsatisfactory rating for the year and charges . . . which may lead to
[his] termination.” Pl.’s Ex. 26. The letter of reprimand proposed in Europe’s e-mail and
Resnick’s actual June 27 letter both indicate that plaintiff’s misconduct at the dance may lead to
an unsatisfactory rating and plaintiff’s termination. As such, Resnick’s decision to give plaintiff
an unsatisfactory rating and to recommend the termination of his probation does not evidence

17

Even if plaintiff had challenged the admissibility of the SCI report, it would be admitted for the same purpose as
Harmon’s statement.

30

any sudden departure by Resnick from his prior course of action or any disregard of Europe’s
suggestion regarding the letter of reprimand.
Moreover, even if Resnick did disregard Europe’s suggestions regarding appropriate
discipline, that bare fact is insufficient under the circumstances to create a factual question on the
issue of pretext. See Ashton v. City of Indianapolis, No. IP 01–273–C H/K, 2003 WL 1562724,
at *13 (S.D. Ind. Feb. 4, 2003) (holding that supervisor’s decision to disregard lower penalty
recommended by discretionary “disciplinary matrix” did not show pretext), aff’d, 88 F. App’x
948 (7th Cir. 2004); Gilliam v. Lee Cnty. Sch. Bd., 2:01CV0008301, 2002 WL 31906274, at *4
(W.D. Va. Dec. 30, 2002) (granting summary judgment and explaining that school board’s
disagreement with superintendent’s recommendation was only “weak evidence of pretext” where
the record did not indicate the frequency with which the superintendent’s personnel
recommendations were disregarded by the board.). But see Schallop v. New York State Dep’t of
Law, 20 F. Supp. 2d 384, 400-01 (N.D.N.Y. 1998) (concluding that plaintiff established pretext
based on, inter alia, fact that her termination was contrary to recommendation of two members of
review committee, but granting summary judgment because plaintiff failed to establish that
proffered reasons were a pretext for discrimination).
Notably, plaintiff has not raised any argument regarding Resnick’s failure to follow
Europe’s suggestion that plaintiff be offered an opportunity to settle the matter by admitting fault
and paying a monetary fine. In any event, Resnick’s decision on that point is insufficient to
establish a factual question on pretext, particularly when his decision is viewed in light of all of
the surrounding circumstances. The fact that Europe was a DOE attorney weakens any probative
value that her disregarded recommendation could have on the question of pretext. Lawyers and
administrators may often have differing goals, incentives, and motivations concerning employee

31

discipline. Whereas administrators are tasked with running a school, DOE lawyers may be more
focused on avoiding litigation and union grievances.
None of plaintiff’s arguments raise triable issues of fact on the question of pretext.
Therefore, summary judgment is warranted on all of plaintiff’s retaliation claims.
G.

Qualified Immunity and Monell Liability
Because plaintiff’s discrimination and retaliation claims fail, it is unnecessary to reach

defendants’ arguments regarding qualified immunity and liability under Monell v. New York
City Dep’t of Soc. Servs., 436 U.S. 658 (1978).
III.

CONCLUSION

For the reasons outlined above, defendants’ motion for summary judgment is granted.
The Clerk of Court is respectfully directed to close the case.
SO ORDERED.
Dated: December 12, 2011
Brooklyn, New York

/s/
JOAN M. AZRACK
UNITED STATES MAGISTRATE JUDGE

32