Johnson v. The New York City Department of Education et al
Filing
59
DECISION AND ORDER: Defendants' Motion for Summary Judgment is hereby GRANTED. Accordingly, Plaintiff's Complaint is DISMISSED in its entirety. Ordered by Judge William F. Kuntz, II on 8/19/2014. (Fwd'd for judgment) (Brucella, Michelle)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------)(
DECISION AND ORDER
1O-CV-2604 (WFK)
A WAD JOHNSON,
Plaintiff,
-againstTHE NEW YORK CITY DEPARTMENT OF
EDUCATION; JOEL I. KLEIN, as Chancellor
for the New York City Department of Education;
MARIANNE T. FERRARA, individually and
in her capacity as Superintendent of Community
School District No. 22; PHYLLIS F. MARINO,
individually and in her capacity as Principal at
LS. 78,
Defendants.
-----------------------------------------------------------)(
WILLIAM F. KUNTZ, II, UNITED STATES DISTRICT JUDGE:
Plaintiff A wad Johnson brings this action after being denied tenure as an intermediary school
principal in the New York City public school system. Alleging that his tenure was denied
because of his race, Plaintiff asserts claims for violations of Title VII of the Civil Rights Act; the
Equal Protection Clause of the United States Constitution pursuant to 42 U.S.C. § 1983; and 42
U.S.C. § 1981. Before the Court is Defendants' Motion for Summary Judgment. Defendants
contend that Plaintiff has failed to establish a prima facie case of racial discrimination.
Additionally, they offer non-discriminatory reasons for denying Plaintiff tenure. As the
undisputed facts fail to establish that Plaintiff was denied tenure under circumstances giving rise
to an inference of discrimination, the Court holds that Plaintiff cannot state a prima facie case for
discrimination and, accordingly, grants Defendants' Motion for Summary Judgment.
FACTUAL BACKGROUND
I.
Events Leading to Denial of Plaintiff's Tenure
Plaintiff has been employed by Defendant New York City Department of Education
("DOE") since October 1986.
Dkt. 52 (Pl.' s Deel. in Opp. to Mot. for Summary Judgment
-1-
("Pl.' s Deel.")),
ii
3.
Plaintiff first worked as a school aide and para-professional before
becoming a teacher in September 1991. Id.
iii! 3-4.
In March of 2003, Plaintiff was appointed
Assistant Principal ("AP") at Roy H. Mann Intermediate School ("LS. 78") for a five-year
probationary period. Id.
ii 5.
At the completion of the five-year period, Plaintiff was eligible for
tenure. Id.
Plaintiff served as an AP under five different principals at LS. 78. Dkt. 47 (Defs.' R. 56.1
Statement of Undisputed Facts ("Defs.' St.")),
i!
5. From April 2006 to September 2007, non-
party William Woods served as principal of LS. 78 and supervised Plaintiff. Id. In March and
April 2006, after two incidents involving a student bringing a loaded .45 caliber semi-automatic
pistol to the school, LS. 78 was placed on the State of New York's Persistently Dangerous
School List ("the List").
Designee. Id.
Id.
i!
7.
During this time, Plaintiff was LS. 78's School Safety
i! 6.
In June 2006, Woods gave Plaintiff an "S" (or "satisfactory") rating. Id.
i!
9. Woods
stated in his deposition that he gave Plaintiff an "S" because Woods had only been at LS. 78 for
a few months. Id.
1
In June 2007, LS. 78 was removed from the List and Plaintiff again received
a satisfactory rating from Woods. Defs.' St.
i! 10.
Woods testified at his deposition that he gave
Plaintiff a satisfactory rating because of Plaintiffs work as School Safety Designee and role in
removing I.S. 78 from the List. Id.
i!
11. 2 Woods also testified that despite giving Plaintiff an
1
Plaintiff disputes this reasoning, arguing that Woods had a duty to consult with the prior
principal but did not, and that Woods also had a duty to conduct an independent investigation of
Plaintiffs file. Pl.'s St. i! 8. Plaintiff also notes that Woods did not indicate any "reservations"
on the requisite section of the DOE form. Id. ii 9.
2
Plaintiff disputes this reasoning too. He argues that his review should have been based upon all
of his goals and objectives for that school year and that Woods tailored his depositions to be
consistent with those of the individual defendants. Pl.' s St. iii! 10-11; Pl.' s Deel. ii 36.
-2-
"S," he believed that Plaintiff could improve his instructional leadership, which includes
supervising and observing teachers, and controlling classrooms. Defs.' St. ii 12.
3
Defendant Phyllis Reggio (formerly known as and referred to in the Complaint and
Plaintiff's papers as Phyllis "Marino") took over as principal at the beginning of the 2007-08
school year. Id.
Designee. Id.
ii
5. Upon arrival, she asked Plaintiff to remain in the role of School Safety
iiii 22, 24;
Pl.'s Deel.
iiii 60, 68.
And while there is some disagreement as to how
many times and the exact nature of this request, 4 it is undisputed that Plaintiff declined to
continue in this position, citing his 2007-08 school year responsibilities with the 8th grade
students. Pl.'s St. ii 24; Pl.'s Deel. ii 61; Defs.' St. ii 22.
II.
Denial of Tenure
On January 2, 2008, Reggio verbally informed Plaintiff that he would not be granted
tenure.
Pl.' s Deel.
ii
7.
The next day, Defendant Marianne T. Ferrara, Superintendent of
Community School District No. 22, formally denied Plaintiff tenure in a written letter. Id.
ii 8.
In support of the denial of tenure, Defendants cited Plaintiff's refusal to stay on as School
Safety Designee; his failure to implement instructional initiatives, particularly with teacher
evaluations; and his failure to order student textbooks. Defs.' St.
ii 24.
Defendants allege that
Plaintiff gave every teacher that he observed a satisfactory rating, even when Woods or Reggio
would have given the teacher an unsatisfactory rating. Id.
3
iiii
13, 21. At her deposition, Reggio
Plaintiff believes this criticism was unwarranted, improper, and never articulated to him. Pl.' s St.
iiii 10-12; Pl.'s Deel. iiii 36-37.
4
Plaintiff readily admits that Reggio told Plaintiff "it would be nice" if he continued to serve as
the School Safety Designee. Pl.' s St. ii 24; Pl.' s Deel. ii 60. However, Plaintiff also states that
Reggio "never 'asked' or 'requested' or 'assigned' or 'directed' or 'ordered' plaintiff to serve as
school safety designee." Pl.'s St. ii 24. Plaintiff's rhetorical flourishes aside, Reggio's statement
to her subordinate employee that "it would be nice" for him to continue in a position is at the
very least "asking" and the Court finds no genuine dispute between the parties as to that point.
-3-
testified that Plaintiff was requested to order 500 student textbooks in September 2007, but failed
to do so and then lied when asked about the incident. Id
not a factor in the decision to deny Plaintiff tenure. Id
if 23. Reggio also testified that race was
if 24.
During their tenures, both individual Defendants appointed African-American APs. Id
27.
if
Reggio appointed an African-American AP, Gwendolyn Wiggins-Walcott, as one of
Plaintiff's replacements. Id Ferrera appointed at least six African-American APs. Id. Ferrera
granted tenure to at least three African-American APs.
Id.
During Ferrara's time as
superintendent, the only two individuals to whom she denied tenure were Plaintiff and a
Caucasian. Id. Furthermore, while AP Cusumano covered Plaintiff's duties for the remainder of
the 2007-08 school year following Plaintiff's tenure denial, one of the ultimate replacements for
Plaintiff, namely Wiggins-Walcott, was African-American. Id.
Plaintiff opposes Defendants' factual allegations. He provides two teacher review reports
from 2006 in which he gave teachers unsatisfactory ratings. Pl.'s Deel.
if 34; Dkt. 57-1 (Deel. of
Etta Ibok ("Pl.' s Ex.")), Ex. 13. 5 Plaintiff also requests that the Court strike Reggio' s testimony
because Reggio did not identify the teachers that she believed deserved unsatisfactory ratings. 6
Pl. 's St.
if 23; Pl. 's Deel. iii! 32-33. With regards to book ordering, Plaintiff denies that he failed
to fulfill the book order and characterizes Reggio's testimony as a fabrication to cover up her
discriminatory animus. Pl.' s St.
if 26. Citing to his own declaration, Plaintiff alleges that Anthony
5
These reviews were responsive to Defendants' documents requests, yet Plaintiff failed to
produce them until attaching them in support of his summary judgment opposition. Dkt. 40
(Defs.' Reply Br. ("Reply")), at 3. Despite Plaintiff's failure to produce these documents, the
Court has taken all of Plaintiff's exhibits into consideration in deciding this motion. As the
Court holds below that Plaintiff has failed to state a prima facie case for discrimination, even
considering the unproduced documents, Plaintiff's improper discovery practices will not
prejudice Defendants.
6
However, Plaintiff offers no evidence to undermine Reggio's statement that there were teachers
that Plaintiff rated as satisfactory that Reggio believed were unsatisfactory.
-4-
Cusumano, another AP for the 2007-08 school year and a Caucasian male, volunteered to purchase
the books, but then failed to obtain authorization for the payments to the vendor. Id.; see also PI.'s
Deel.
ifil 72-76. Plaintiff testified that as soon as he was informed that the books had not been
delivered, he resolved the situation within one hour. Pl.'s Deel. if 75.
The parties present mixed evidence regarding Plaintiffs discrimination claims. At his
deposition, Plaintiff testified that he liked working with Reggio and noted that she awarded him a
letter of accommodation in November, prior to denying him tenure. Defs.' St.
if 26; see also Dkt.
49 (Deel. of Daniel Chiu ("Defs.' Ex.")), Ex. B (Deposition of Awad Johnson) at 58:12-13.
Plaintiff further testified that he never heard either individual Defendant-neither Superintendent
Ferrara nor Principal Reggio (together the "individual Defendants")-make a derogatory
statement about his race.
Defs.' St.
if 26; see also Defs.' Ex. B. at 47:8-10. When asked,
Plaintiff could provide no example of Reggio harboring a discriminatory animus towards him
prior to the denial of his tenure. Defs.' Ex. B at 58:14-24. Plaintiff does not dispute these facts.
See Dkt. 53 ("Pl. 's Sur-Reply"), at 4-5. 7
Nonetheless, Plaintiff points to one statement as the basis of his discrimination allegation.
When Reggio verbally informed Plaintiff that he was being dismissed, Reggio allegedly told
7
Plaintiff's Rule 56.1 Statement failed to comply with the Local Rules of this Court requiring
that such counterstatements "include correspondingly numbered paragraph[ s] responding to each
numbered paragraph in the statement of the moving party." Local Rules of the United States
District Courts for the Southern and Eastern Districts of New York ("Local Rules") 56.l(b). The
Court could have deemed all of Defendants' statements that were not "specifically controverted
by a correspondingly numbered paragraph" as admitted. See Local Rule 56.1 (c). However,
Plaintiff attempted to remedy his failure to comply with the Local Rules by including a chart in
his sur-reply brief identifying which paragraphs in Pl. 's R. 56.1 St. correspond to the paragraphs
in Defs.' R. 56.1 St. See Pl.'s Sur-Reply at 4-5. The Court has reviewed this chart to identify
disputed statements instead of deeming all of the Defendants' statements as admitted. See Holtz
v. Rockerfeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001), abrogated on other grounds by Gross
v. FBL Fin. Servs., 557 U.S. 167 (2009), ("A district court has broad discretion to determine
whether to overlook a party's failure to comply with local court rules.").
-5-
Plaintiff that "he did not 'fit in' as an administrator at the school." Pl.'s
St.~
31. This statement
was made in connection with Reggio's unsatisfactory review following Plaintiffs alleged failure
to continue serving as School Safety Designee, failure to order textbooks, and failure to provide
adequate teacher reviews. See Defs.' St.
~
24.
Plaintiff speculates that when Reggio said he did not "fit in," she meant that Plaintiff "did
not 'fit in' as an administrator in a school with a predominantly African-American student
population, but which was located in a predominantly white neighborhood whose residents were
overtly hostile to the minority students bused into their neighborhood from the outside, had been
hostile to the African-American principal [previously running] the school, and the outdoor greeting
billboard on the school premises had been used on more than one occasion to openly express racist
sentiments." Pl.' s Deel.
~
79. According to Plaintiff, this racial dynamic has caused tension
between the residents and the "bused in" minority students. Id.~ 42; Pl.'s St.~ 35. 8
In support of his interpretation, Plaintiff recounts that, during an April 2006 region-wide
parents' meeting (prior to Reggio joining the school) some of the residents stated that black children
were not welcome at I.S. 78. Pl.'s Deel.
~
43. That same month, a large sign was placed on I.S.
78's marquee, stating: "DIE RAT NIGGER GO HOME." Id. In 2007, another sign was put on the
same marquee, stating: "DIE GOONS." Id.
Plaintiff also claims that Reggio "acknowledged in
informal conversations that the Black students were not welcomed in the neighborhood and in the
school [by members of the community] and that she herself did not really want some of them in the
school either. Reggio also stated that Black students were the ones bringing down the grades in the
school." Id.
~
45. Plaintiff admits that no racial innuendo was expressed toward him, but, rather,
8
According to Plaintiff, while he was at I.S. 78, approximately 68 to 71 percent of students at the
school were African-Americans. Pl. 's Deel. n. 86.
-6-
these past comments contributed to his "interpret[ation]" of Reggio' s statement at the time he was
denied tenure. Id.
if 41.
Additionally, Plaintiff points out that he was the only African-American administrator at
I.S. 78 at the time he was denied tenure. Pl.'s St.
if 35. The only previous black principal ofl.S.
78, Jennifer Canton, was forced to resign in April 2006 because of the racial animosity at the
school. Id.
if 35; Pl.'s Deel. if 46; see also Defs.' St. if 5. Following Canton's departure, I.S. 78
was identified as a "racial incident" school. Pl.' s Deel.
if 46. Accordingly, Reggio was directed
to have a meeting with community members to discuss and examine the most efficient way to
resolve the racial issues at the school. Id.
a meeting and never held one. Id.
if 46. Plaintiff maintains that Reggio was against such
if 48. Plaintiff further claims that after he prodded Reggio to
hold the meeting, she "responded that she did not want to bring Al Sharpton and his rabblerousers into her building and added that she already knows that there is a problem and that the
community does not want the Black students in the school."
Id.
if 49. However, in his
deposition, Plaintiff affirmed that Reggio never made a derogatory statement about his race.
Defs.' St. if 26; see also Defs.' Ex. B. at 47:8-10.
PROCEDURAL BACKGROUND
After being denied tenure, Plaintiff appealed to the Chancellor's Committee. Defs.' St.
25. Plaintiff, who was not represented at the hearing, see Pl.' s St.
if
if 41, lost that appeal as the
Committee unanimously concurred with Reggio and Ferrara's decision to deny Plaintiff tenure as
an AP. Defs.' St.
if 25. The Committee's report, effective as of March 1, 2008, concluded that
Plaintiff "did not fulfill the professional responsibilities expected of him ... did not implement
the instructional directives from [Reggio] which were meant to respond to the deficiencies noted
in the previous year's School Quality Review ... did not implement [Reggio's] administrative
-7-
mandate that every pupil be issued a textbook for every subject ... refused to remain as the
School's Supervisor of Safety - a position he had held during the previous administration - had
a negative impact on this crucial element for the school community." Id. Plaintiff alleges that
the Committee "simply rubber-stamped the decision" to deny his tenure. Pl.' s St. ~ 37.
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity
Commission ("EEOC") on June 16, 2008. Dkt. 57-15 (Pl.'s Ex. 50). After an investigation, the
Commission determined that "there [was] reason to believe" Plaintiff had been discriminated
against when he was denied tenure. Id. at 55. On March 22, 2010, the EEOC informed Plaintiff
that the United States Department of Justice would not be filing a suit based on his allegations
and that he was free to bring an action under Title VII of the Civil Rights Act of 1964 within 90
days. Id. at 56. This action promptly followed.
Plaintiff filed a Complaint in the United States District Court for the Eastern District of
New York on June 8, 2010 and the case was assigned to the Hon. United States District Judge
Allyne R. Ross. Dkt. 1 ("Compl."). The Complaint alleges three causes of action related to the
denial of Plaintiffs tenure and seeks declaratory, injunctive, and monetary relief.
Plaintiff
named Principal Reggio and Superintendent Ferrara as Defendants in both their individual and
official capacities. Plaintiff also sued the DOE and DOE Chancellor Joel I. Klein in his official
capacity. Plaintiff asserted claims for violations of Title VII of the Civil Rights Act, the Equal
Protection clause of the federal Constitution pursuant to 42 U.S.C. § 1983, and 42 U.S.C. § 1981.
Compl.
~~
34--42. Defendants answered the Complaint on September 13, 2010. Dkt. 7.
On October 17, 2011, the case was reassigned to this Court. Dkt. 37. On March 16,
2012, Defendants sought a pre-motion conference for leave to file a motion for summary
judgment.
At the pre-motion conference, the Court granted Defendants leave to bring their
-8-
motion and re-opened discovery. Minute Entry of 4/27/12. The Court twice granted extensions
of time for Plaintiff to file his papers and allowed Plaintiff to file a sur-reply over the objection
of Defendants. Dkts. 38, 39, 42. The motion was fully briefed and submitted to the Court on
April 5, 2013. Dkts. 46-54.
On March 28, 2013, Plaintiff requested a pre-motion conference to brief the admissibility
of the transcript from the Office of Appeal and Review proceeding and the final decision of the
Chancellor's Committee. Dkt. 44. Plaintiff contended that both documents were inadmissible
hearsay and should be stricken from the record. Id. This Court referred the issue to the Hon.
United States Magistrate Judge Victor Pohorelsky. See Dkt. Entry of 3/28/2013. During a
hearing before Judge Pohorelsky, the parties agreed that "instead of making a separate motion,
the letter submitted by the [P]laintiff [Dkt. 44] and the letter submitted by the [D]efendants in
response [Dkt. 45] shall be considered part of the record on summary judgment such that the
arguments made in the letters will be deemed to be before the court and considered by the court
in rendering its decision." Dkt. 56. This Court has taken the parties' letters under consideration
in deciding this motion.
Having set the stage for Defendants' motion, we turn to the merits.
DISCUSSION
A. Summary Judgment Standard
A court appropriately grants 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). No genuine issue of material fact exists "where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party." Lovejoy-Wilson v. NOCO
Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). The moving party must meet its burden by pointing to
-9-
evidence in the record, including depositions, documents, affidavits, or other materials which it
believes demonstrates the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(2);
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "In determining whether summary judgment
is appropriate, [the] Court will 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."
Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal quotation marks and citations
omitted). The role of the district court is not to weigh the evidence and determine the truth of the
matter, but rather to perform "the threshold inquiry of whether there is the need for a trial[.]"
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
If the moving party fulfills its preliminary burden, the burden shifts to the non-movant to
raise the existence of a genuine issue of material fact. Fed. R. Civ. P. 56( c)(1 ). The non-moving
party must make a showing sufficient to establish the existence of each element constituting its
case. See Celotex, 477 U.S. at 322-23 ("[A] complete failure of proof concerning an essential
element of the non-moving party's case necessarily renders all other facts immaterial.").
Statements that are devoid of specifics and evidence that is "merely colorable" are insufficient to
defeat a properly supported motion for summary judgment. See Bickerstajfv. Vassar Coll., 196
F.3d 435, 452 (2d Cir. 1999); Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). "A dispute
about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a
reasonable jury could decide in the non-movant's favor." Beyer v. Cnty. of Nassau, 524 F.3d
160, 163 (2d Cir. 2008) (citing Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007)).
B. McDonnell Douglas Standard
Title VII makes it unlawful for an employer "to discharge any individual, or otherwise to
discriminate against any individual ... because of such individual's race [or] color[.]" 42 U.S.C. §
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2000e-2(a)(l). Section 1983 provides plaintiffs with the power to bring a suit if they have been
subjected, "under color of any statute, ordinance, regulation, custom, or usage, of any State ... to
the deprivation of any rights, privileges, or immunities secured by the Constitution and laws[.]"
42 U.S.C. § 1983. Section 1981 provides that "[a]ll persons within the jurisdiction of the United
States shall have the same right in every State and Territory to make and enforce contracts, to
sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed by white citizens[.]" 42 U.S.C. § 1981(a).
In the seminal case McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), the
Supreme Court set forth a three-step burden-shifting analysis for courts to apply when analyzing
claims of discrimination under Title VII. Courts employ the same burden-shifting analysis when
evaluating disparate treatment claims brought under § 1983 and § 1981. See Garcia v. Hartford
Police Dep 't, 706 F.3d 120, 127 (2d Cir. 2013) ("For a claim of employment discrimination under
42 U.S.C. §§ 1981 and 1983, we apply the familiar burden-shifting framework set forth by the
Supreme Court in McDonnell Douglas Corp. v. Green."); see also Bowen-Hooks v. City of NY,
10-CV-5947, 2014 WL 1330941, at *16 (E.D.N.Y. Mar. 31, 2014) (Brodie, J.) (same). First, a
plaintiff must establish a prima facie case of discrimination, see McDonnell Douglas Corp., 411
U.S. at 802, by demonstrating: (1) "membership in a protected class;" (2) "qualification for the
position;" (3) "adverse employment action;" and (4) "circumstances giving rise to an inference of
discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 567 (2d Cir. 2000). "Although the
burden of establishing a prima facie case is not onerous, and has been frequently described as
minimal, the Second Circuit has also noted that a jury cannot infer discrimination from thin air."
Staffordv. NY Presbyterian Hosp., No. 06-CV-2150, 2011WL1131104, at *5 (E.D.N.Y. Mar.
-11-
28, 2011) (Vitaliano, J.) (internal citations omitted) (citing Norton v. Sam's Club, 145 F.3d 114,
119 (2d Cir. 1998)).
If a plaintiff establishes a prima facie case of discrimination, the burden "then must shift
to the employer to articulate some legitimate, nondiscriminatory reason" for its actions.
McDonnell Douglas, 411 U.S. at 802; accord Tex. Dep 't of Cmty. Affairs v. Burdine, 450 U.S.
248, 254 ( 1981 ). "This burden is one of production, not persuasion; it can involve no credibility
assessment." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (internal
citations omitted). Once the employer satisfies this burden, "the presumption of discrimination
drops out of the picture,'' and the plaintiff bears the burden of demonstrating "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." Id. at 143 (internal quotations and citations
omitted).
C. Plaintiff has Failed to State a Prima Facie Case of Discrimination
"As the McDonnell Douglas framework requires, Plaintiff first must satisfy his burden of
establishing a prima facie case of discrimination" before the Court will consider whether the
reasons for denying his tenure were legitimate. Rozenfeld v. Dep 't of Design & Const. of City of
New York, 875 F. Supp. 2d 189, 202-03 (E.D.N.Y. 2012) (Kuntz, J.) ajf'd, 522 F. App'x 46 (2d
Cir. 2013). The fourth requirement for Plaintiff to state a prima facie case of discrimination
requires that he allege "circumstances giving rise to an inference of discrimination." Cruz, 202
F.3d at 567.
present
"[l]n presenting a prima facie case of discriminatory discharge (P]laintiff must
proof
that
[his]
discharge
occurred
m
circumstance
giving rise to
an inference of discrimination on the basis of [his] membership in [a protected] class."
Chertkova v. Conn. Gen. Life Ins. Co., 92 F .3d 81, 91 (2d Cir. 1996). The only relevant inquiry
is whether Plaintiff has come forward with enough evidence "from which a rational fact finder
-12-
could infer unlawful discriminatory animus on the part of [Defendants]." Henry v. Daytop Vill.,
Inc., 42 F.3d 89, 96 (2d Cir. 1994); see also Randolph v. CJBC World Markets, 01-CV-11589,
2005 WL 704804, at* 12 (S.D.N.Y. Mar. 29, 2005) (Sweet, J.). When a plaintiff fails to present
"evidence to establish any such causal link between his termination and his race" summary
judgment is appropriate. Randolph, 2005 WL 704804, at* 12.
Defendants contend that Plaintiff has presented no such proof.
They argue that the
undisputed facts provide no indication that Plaintiff's denial of tenure was based upon his race.
The Court agrees with Defendants.
The fact that Plaintiff, by his own admission, was never
subjected to discriminatory comments or animus by either of the individual Defendants, that
Reggio awarded him a commendation in November 2007, and that both individual Defendants
hired other African-American APs-including Plaintiff's replacement-after denying Plaintiff
tenure, all weigh heavily against establishing a prima facie case of discrimination. Plaintiff has
attempted to manufacture circumstances giving rise to an inference of discrimination by generally
referring to unrelated racial tensions between the local community and LS. 78's students and stray
remarks. This will not suffice.
The most significant undisputed fact is Plaintiff's admission that neither individual
Defendant ever made a derogatory statement to him about his race. Defs.' St.
~
26; see also Defs.'
Ex. B. at 47:8-10. This admission is illustrative of Plaintiff's failure to present even minimal proof
that his tenure denial was driven by discrimination. Furthermore, at his deposition, Plaintiff could
provide no example of an occasion when Reggio exhibited discriminatory animus towards Plaintiff
prior to the denial of his tenure.
Defs.' Ex. B at 58:14-24.
Plaintiff "was afforded ample
opportunity to present evidence that [D]efendants acted with discriminatory animus and [has]
failed to adduce such evidence." Chamber/ant v. A & P, et al., 247 F. App'x 237, 238 (2d Cir.
-13-
2007). A plaintiff who admits that he was never subjected to discrimiµatory comments and never
had occasion to complain about discriminatory treatment, absent facts indicating otherwise, cannot
make out a prima facie case for discrimination under either Title VII, § 1983, or § 1981. See
Boyce v. Bank ofN Y, 226 F. App 'x 17, 19 (2d Cir. 2006).
The parties do not dispute that Plaintiff received a commendation from Reggio in
November 2007. See Pl.'s St.
~
27; Dkt. 51 (Pl.'s Br. in Opp. ("Pl.'s Br.")), at 8. They do,
however, dispute its relevance to the question at hand. See Reply at 7-8. The Court agrees with
Defendants that "the receipt of the commendation [actually] undermines [P]laintiff s claim that
Principal Reggio was motivated by discriminatory animus." Reply at 8. "It is difficult to impute
bias against a plaintiff in a protected class where the person making the adverse employment
decision also made a recent favorable employment decision regarding the plaintiff." Chuang v.
T W Wang Inc., 647 F. Supp. 2d 221, 233 (E.D.N.Y. 2009) (Glasser, J.).
Further crippling to Plaintiffs effort to establish a prima facie case of discrimination is
that after denying Plaintiff tenure, both individual Defendants appointed African-American APs.
Defs.' St.
~
27. Defendant Ferrara also granted tenure to at least three African-Americans. Id.
Additionally, one of the "replacement" APs that took over for Plaintiff was African-American. 9
Here, Plaintiff attempts to create a factual dispute where none exists. See Pl.' s St. ~ 40; Pl.' s
Deel. ~ 78. Plaintiff points to the fact that individual Defendants appointed African-American
APs only after Plaintiff commenced this discrimination action. Pl.'s St. ~ 40. This does not
create a factual dispute. And Plaintiff cites no cases to this Court in which the chronology of the
replacement hiring changes the analysis.
9
Furthermore, Plaintiff argues that Defendant was not replaced by Wiggins-Walcott, an AfricanAmerican, but by Margaret Graves or Anthony Cucumano, both Caucasians. See Pl.'s Sur-Reply
at 8-9 (citing Pl.' s Ex. 51, Interrogatory 8, at 6). However, Plaintiff selectively cites to the
Interrogatory, which objects to the question "on the grounds it is vague and ambiguous with
respect to the term 'replaced' and assumes facts that have not been established." (Ex. 51 at 6).
Additionally, in her declaration, Reggio stated that Wiggins-Walcott replaced Plaintiff. Defs.'
Ex. M ~ 3. Lastly, Plaintiff does not dispute that Reggio appointed Wiggins-Walcott as one of
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Id.; Defs.' Ex. M, Deel. of Phyllis Reggio, ii 3; see also Pl.' s Deel. ii 78 ("[Reggio] appointed
Gwendolyn Wiggins-Walcott as Assistant Principal after she denied me tenure and after I had
commenced this discrimination action."). "Where no [other] evidence giving rise to an inference
of discrimination has been presented, the fact that a plaintiff is replaced with an individual within
his protected class undermines his attempt to establish a prima facie case of discrimination."
Morris v. N. Y City Dep 't of Sanitation, 99-CV-4376, 2003 WL 1739009, at *5 (S.D.N.Y. Apr. 2,
2003) (Knapp, J.); see also Randolph, 2005 WL 704804, at *12 (collecting cases).
Here,
Plaintiffs discrimination claim is diminished in light of the individual Defendants' subsequent
hiring of and granting of tenure to African-American APs as well as hiring a member of
Defendant's protected class as one of his replacements.
Plaintiff also argues that the satisfactory ratings that he received from the prior I.S. 78
principals is evidence that Reggio's unsatisfactory rating was driven by discriminatory animus.
See Pl.'s Br. at 11. However, courts in this Circuit have found that a change in performance
reviews, without more, does not lead to an inference of discriminatory motive. See Viola v.
Philips Med. Sys. of N. Am., 42 F.3d 712, 717-18 (2d Cir. 1994) (rejecting inference of
discrimination or pretext merely from negative performance review following positive reviews);
see also Gambello v. Time Warner Commc'ns, Inc., 186 F. Supp. 2d 209, 222 (E.D.N.Y. 2002)
(Gershon, J.) (finding no inference of pretext when new management placed greater emphasis on
employee's sales numbers resulting in worse evaluations of plaintiff); Brown v. Time, Inc., 95CV-1008, 1997 WL 231143, at *12 (S.D.N.Y. May 7, 1997) (Mukasey, J.) ("a change in
management's evaluation of an employee's performance cannot by itself raise an inference of
the APs at LS. 78 following his departure. Pl.'s Deel. ii 78. In sum, reading all of the evidence
together, at a school with multiple APs, there is no genuine dispute that Wiggins-Walcott was
one of the APs hired to replace Plaintiff for the next school year.
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pretext); Beers v. NYNEX Material Enters. Co., 88-CV-305, 1992 WL 8299, at * 11 (S.D.N. Y.
Jan. 13, 1992) (Mukasey, J.) (same). Inferring discrimination is "even less permissible when a
new supervisor is appointed, who is entitled to set his own standards and agenda .... even if
those expectations are contrary to a prior manager's expectations." Gambello, 186 F. Supp. 2d at
222 (quoting Beers, 1992 WL 8299, at* 11 and Brown, 1997 WL 231143, at* 12). That Plaintiff
received better ratings from Principal Woods, under different circumstances, cannot result in an
inference of discrimination against Principal Reggio. See Davis v. Oyster Bay-East, 03-CV1372, 2006 WL 657038, at* 11 (E.D.N.Y. Mar. 9, 2006) (Feuerstein, J.) (finding the "mere fact
that Plaintiff had a better relationship with or received better evaluations from previous
supervisors does not, on its own, raise an inference of discrimination" especially where
defendant's "criticisms were race-neutral, and based on specific, and often documented instances
of Plaintiff's poor performance"), aff'd, 220 F. App'x 59. In light of the specific reasons Reggio
articulated for denying Plaintiff tenure 10 and the changes between her administration and prior
principals, there is no basis on which to infer a discriminatory basis for Reggio's unsatisfactory
review of Plaintiff.
The last of Plaintiff's contentions that merits discussion is his attempt to convert LS. 78's
history of racial tensions into evidence of discriminatory animus on the part of Reggio. One of
the unofficial, verbal reasons that Plaintiff was denied tenure at LS. 78 was that Reggio believed
that Plaintiff "did not 'fit in' as an administrator at the school." Pl.'s St.
~
31. This reason was
given in addition to denying Plaintiff tenure because of his alleged failure to properly administer
10
Whether Reggio's evaluations were accurate is not the question at hand. The question for the
Court is whether those stated reasons were the motivation for Defendants' decision to deny
Plaintiff tenure. See McPherson v. NY City Dep't of Educ., 457 F.3d 211, 216 (2d Cir. 2006)
("In a discrimination case ... 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.") (internal citations omitted).
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teacher evaluations, refusal to serve as School Safety Designee, and alleged failure to order
textbooks. See Defs.' St.
ii 24. Plaintiff, however, relies on a series of events, most of which
occurred before Reggio became principal, to explain the "significan[ce]" of Reggio's comment.
Pl. 's Br. at 9.
Specifically, Plaintiff lists unrelated incidents-individuals in the community
posting signs on the school marquee, the school's status as a "racial incident" school, and
Reggio's alleged refusal to host a meeting regarding racial issues between LS. 78's students and
the local community-without providing any indication of how these events were linked to the
staffing decision regarding Plaintiff. Plaintiff asks this Court to make an inferential leap, one
that goes well beyond reading the undisputed facts in Plaintiff's favor, to find that LS. 78's racial
tensions were imbedded in Reggio's comment, which lacked any objective indicia of racial
motive. In fact, Plaintiff readily admits that Reggio never made a derogatory remark to him at
any prior point during their working relationship. Defs.' St.
ii 26; see also Defs.' Ex. B. at 47:8-
10. This admission further undermines the alleged "significance" Plaintiff reads into Reggio' s
comment regarding Plaintiff "fitting in" as an administrator at LS. 78. Ultimately, Plaintiff asks
this Court to rely on his own speculation as the basis for finding an inference of discrimination.
However, to do so would be inappropriate and the Court declines Plaintiff's request.
See
Bickerstaff, 196 F.3d at 448, 452 (instructing that district courts must "carefully distinguish
between evidence that allows for a reasonable inference of discrimination and evidence that
gives rise to mere speculation and conjecture" and finding that plaintiff's counsel merely
attributing racial reasons to a statement lacking any hint of racial motivation is "insufficient to
defeat a properly supported motion for summary judgment").
Plaintiff also highlights Reggio's informal statements, made in discussions about the
community-student tensions, in which she said that she also did not want some of the bused-in
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African-American students at LS. 78 and blamed those students for bringing down the school's
grades. See Pl. 's Deel.
ii
45. However, Plaintiff did not identify the statements as reflecting a
discriminatory animus towards him during his deposition. See Defs.' St.
ii 26; see also
Defs.'
Ex. B. at 47:8-10; 58:14-24. Furthermore, the statements were made as part of a discussion of
the school-community issues, and Plaintiff offers no link between those statements and the
decision regarding his tenure review.
"[S]tray comments . . . without some demonstrable
connection to plaintiffs discharge, are insufficient to give rise to an inference of discrimination."
Bailey v. Frederick Goldman, Inc., 02-CV-2429, 2006 WL 738435, at *4 (S.D.N.Y. Mar. 23,
2006) (Griesa, J.); cf Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001)
(finding stray remarks supported an inference of discrimination when directly targeted at the
members of the protected class whom defendant took adverse employment action against). Here,
Reggio's comments lack any discernible connection to the denial of Plaintiff's tenure or
employment decisions in general. And even if Reggio's statements were discriminatory, they
were too few and temporally isolated from the decision regarding Plaintiff to establish an
inference of discrimination. See Gobin v. New York City Health & Hospitals Corp., 04-CV3207, 2006 WL 2038621, at *6 (S.D.N.Y. July 19, 2006) (Pauley, J.) (holding a "few and
isolated" discriminatory statements were insufficient to establish an inference of discrimination,
absent further indicia of discrimination).
"Although the burden of establishing a prima facie case is not onerous, and has been
frequently described as minimal, the Second Circuit has also noted that a jury cannot infer
discrimination from thin air." Stafford, 2011 WL 1131104, at * 5. Furthermore, a trial court
shall not permit the non-moving party on a motion for summary judgment to rely upon
unsubstantiated speculation in opposing such a motion. See Forsyth v. Fed'n Empl. & Guidance
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Serv., 409 F.3d 565, 573 (2d Cir. 2005), abrogated on other grounds by Ledbetter v. Goodyear
Tire & Rubber Co., Inc., 550 U.S. 618 (2007), ("On a motion for summary judgment in a
discrimination case the plaintiff must provide the trial court with more than his own conclusory
allegations declaring discrimination was present.").
Plaintiff's unfounded allegations and conjecture, here, do not establish aprimafacie case
of discrimination. Plaintiff has failed to produce evidence that would lead a reasonable factfinder to conclude that his termination occurred because of his race or that his race was a
consideration in the decision to deny him tenure.
Therefore, Plaintiff has failed to raise an
inference of discrimination sufficient to satisfy the fourth element required to state a prima facie
claim of discrimination.
See Randolph, 2005 WL 704804, at *12 (finding no inference of
discrimination where plaintiff could not identify anyone at the Defendant-business who had
discriminated against him, was replaced by a member of his protected class, and there was no
evidence of discriminatory animus towards plaintiff).
D. Defendants Are Entitled to Summary Judgment as a Matter of Law
Plaintiff's failure to allege a prima facie case for discrimination under the McDonnell
Douglas framework vitiates his claims under § 1981, § 1983, and Title VII. See Mcintyre v.
Longwood Cent. Sch. Dist., 380 F. App'x 44, 49 (2d Cir. 2010) (failure to set forth aprimafacie
case of discrimination, specifically the failure to allege an inference of discrimination,
necessarily eliminates plaintiff's ability to assert a claim under §§ 1981, 1983). Accordingly, the
Court need not consider Plaintiff's arguments regarding the alleged pre-textual nature of
Defendants' reasons for denying him tenure nor his arguments regarding Monell liability for the
City ofNew York under§ 1983.
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s/WFK
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