Sicular v. N.Y.C. Department of Education et al

Filing 30

MEMORANDUM, ORDER, & JUDGMENT granting 11 Motion for Summary Judgment: Summary judgment is granted to the defendants on all of plaintiff's claims. The case is dismissed. No costs or disbursements are awarded. Ordered by Judge Jack B. Weinstein, on 1/30/2014. Copies mailed by Chambers. (Barrett, C)

* JAN 3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ROY SICULAR,

MEMORANDUM,
ORDER, & JUDGMENT
Plaintiff,
13-CV-3616

-againstN.Y.C. DEPARTMENT OF
EDUCATION, MECCA SANTANA, and
VICTORIA AJIBADE,
Defendants.

JACK B. WEINSTEIN, Senior United States District Judge:

Appearances
For Petitioner:
Roy Sicular
P.O. Box 33
Flushing, NY 11367
PROSE

For Defendants:
Shawn Matthew Clark
New York City Law Department
Office of the Corporation Counsel
100 Church St.
Room 2-318
New York, NY 10007

1

2014 :~r

.,

Table of Contents

I.

Introduction ............................................................................................................................. 2

II.

Facts and Procedural History ................................................................................................... 3

III.

Law ....................................................................................................................................... 4

A.

Construal of a ProSe Filing .............................................................................................. 4

B.

Summary Judgment Standard ........................................................................................... 4

C.

Discrimination................................................................................................................... 4

D.

Retaliation ......................................................................................................................... 5

IV.

Application of Facts to Law ................................................................................................. 6

A.

Discrimination................................................................................................................... 6
1.
2.

V.

I.

Closing of OEO's Investigation .................................................................................... 7

3.
B.

Placement on Ineligible List .......................................................................................... 7

Termination by DOE ..................................................................................................... 8
Retaliation ......................................................................................................................... 8

Conclusion ............................................................................................................................... 9

Introduction

PlaintiffRoy Sicular, appearing prose, sues the New York City Department of Education
("DOE"), Mecca Santa, and Victoria Ajibade, alleging race, gender, and religious discrimination
under Title VII ofthe Civil Rights Act of 1964,42 U.S.C. §§ 2000e et seq., age discrimination
under the Age Discrimination Employment Act, 29 U.S.C. §§ 621 et seq, and arrest record
discrimination under the New York State Human Rights Law, N.Y. Exec. Law§ 290 et seq.
Sicular claims that the Department of Education (1) discriminated against him based on
race, gender, religion, and arrest record, and (2) retaliated against him for complaining to the
Office of Equal Opportunity and Diversity Management ("OEO").

2

Defendants move for summary judgment on the grounds that plaintiff has failed to
establish a prima facie case or rebut defendants' legitimate, non-discriminatory motives.
For the reasons set forth below, defendants' motion is granted.

II.

Facts and Procedural History
Sicular was employed by DOE as a substitute teacher from 1998-2009. Because of an

arrest, on June 16, 2009, he was placed on the Ineligible/Inquiry List. See Compl. at 36, Attach.
17, Letter from DOE to Sicular (June 16, 2009). He was notified on September 8, 2011 that his
teaching licenses/certificates were terminated effective June 16,2009. See Pl.'s Rebuttal at 8,
Attach. 3, Letter from DOE to Sicular (Sept. 8, 2011). A subsequent letter from DOE dated
October 14, 2011 stated that this letter "supersedes and clarifies" the previous letter and that
"another appeal is necessary." See id at 9, Attach. 4, Letter from DOE to Sicular (Oct. 14,
2011).
While waiting for a decision from DOE, plaintiff filed a complaint with OEO on May 30,
2012 and with the New York State Division of Human Rights ("SDHR") on July 11, 2012. See
Compl. at 2, 7, Attach. 1, Email copy of Compl. from Sicular to OEO (May 30, 20 12). OEO
closed its investigation of the complaint without making any findings. See Compl. at 22, Attach.
5, Letter from Ajibade to Sicular (June 29, 2012). On September 24, 2012, DOE notified
plaintiffthat his teaching licenses/certificates were terminated effective June 16,2009. See Pl.'s
Rebuttal at 10, Attach. 5, Letter from DOE to Sicular (Sept. 24, 20 12).
On May 23, 2013, plaintiff commenced an article 78 proceeding in the New York State
Supreme Court. He had a full opportunity to pursue his case. This action was dismissed as
untimely. See Def. 's Rule 56.1 Statement, Ex. N.

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Plaintiff alleges that: (1) his placement on the ineligible list by DOE constitutes arrest
record discrimination; (2) the closing of the investigation by OEO constitutes religious
discrimination; (3) his termination by DOE constitutes race, gender, religious, and arrest record
discrimination; and (4) his termination by DOE constitutes retaliation for filing a complaint with
OEO and SDHR.

III.

Law
A.

Construal of a Pro Se Filing

Allegations of a pro se complaint or petition are held to less stringent standards than
formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Elliot

v. Bronson, 872 F .2d 20 (2d Cir. 1989). The court attempted to level the playing field for this
pro se litigant by construing the facts as favorably to his position as is practicable and fair to the
defendant.

B.

Summary Judgment Standard

Summary judgment is appropriate if, after construing the facts in the light most favorable
to the non-moving party, there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter oflaw. Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir.
2009); Sledge v. Kooi, 564 F.3d 105, 108 (2nd Cir. 2009); Fed.R.Civ.P. 56(c).

C.

Discrimination

Employment discrimination claims based on race or gender brought under Title VII,
ADEA, and NYCHRL are analyzed under the McDonnell Douglas, 411 U.S. 792, 802-804
(1973), framework. See Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005);

Weinstock v. Columbia Univ., 244 F.3d 33, 42 n.1 (2d Cir. 2000). A plaintiff must establish a
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prima facie case of discrimination, which is "satisfied by a showing of membership in a
protected class, qualification for the position, an adverse employment action, and preference for
a person not of the protected class." James v. New York Racing Ass 'n, 233 F.3d 149, 153-154
(2d Cir. 2000) (internal citations omitted).
With regard to disciplinary actions, "an employee does not suffer a materially adverse
change in the terms and conditions of employment where the employer merely enforces its
preexisting disciplinary policies in a reasonable manner." Joseph v. Leavitt, 465 F.3d 87, 91 (2d
Cir. 2006).
The Court of Appeals for the Second Circuit has not categorically defined what
circumstances permit an inference of discrimination. A "plaintiff must come forward with some
evidence, beyond merely stating that he is a member of a protected class that suffered an adverse
employment decision." Williams v. Palladia, Inc., 2009 U.S. Dist. Lexis 15516,21-22 (S.D.N.Y.
Feb. 10, 2009).
If the employer can articulate a "legitimate, nondiscriminatory reason" for the
termination, the "burden shifts back to the plaintiff to demonstrate by competent evidence that
the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for
discrimination." Leibowitz, 584 F.3d at 499 (internal quotation marks and citation omitted).

D.

Retaliation

A prima facie case of retaliation requires that the plaintiff show: (1) participation in a
protected activity; (2) that the defendant knew of the protected activity; (3) an adverse
employment action; and (4) a causal connection between the protected activity and the adverse
employment action." Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (internal quotation
marks omitted).

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•,

•.

A plaintiff may prove causation 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 fellow employees who engaged in similar conduct; or (2)
directly, through evidence of retaliatory animus directed against the plaintiff by the defendant."

Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000.) Causation may also be
demonstrated through a showing that plaintiff was subject to more severe penalties than other
employees who had engaged in similarly unsatisfactory conduct. DeCintio v. Westchester

County Me d. Ctr., 821 F. 2d 111 (2d Cir. 1987).
The defendant may then rebut the plaintiffs prima face case by demonstrating that the
facts of the prima facie case are not true or by demonstrating that it had a legitimate nonretaliatory reason for sanctioning the employee as it did. The plaintiff must then show that
"retaliation was a substantial reason for the adverse employment action." Hicks, 593 at 164.

IV.

Application of Facts to Law
A.

Discrimination

Under Title VII and ADEA, individuals are not liable in their individual capacities. See

Patterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir. 2004). All claims against individual
defendants are dismissed on the merits.
For the reasons stated below, plaintiff cannot establish a prima facie case of
discrimination for any of his claims. Even if plaintiff could establish a prima facie case for any
of his claims, he has failed to rebut defendants' legitimate, nondiscriminatory reasons for their
actions.

6

..

1.

Placement on Ineligible List

Plaintiff argues that his arrest should not have prompted DOE to place him on the
Ineligible/Inquiry List or terminate him because the matter did not involve children. While DOE
is particularly concerned with arrests for matters involving children, it is also "concerned with all
arrests .... " See DOE Regulation of the Chancellor C-1 05, § 9(b). In addition, termination
could result from behavior that "includes but is not limited to allegations of criminal wrongdoing
... which would pose a threat to the safety of students and staff, and conduct which brings
disrepute to the district, school or school system." See Regulation of the Chancellor C-31.
There is no indication that DOE improperly applied these regulations. In addition, plaintiff
presents exhibits demonstrating that his termination hearing included consideration of multiple
factors aside from his arrest, including complaints about his classroom management, filings of
false complaints, and untimely report of his arrest. See Compl. at 5, 8, 25, 29, 32, 33. Plaintiffs
disagreement with DOE's conclusion is insufficient to demonstrate discrimination against him
due to his arrest record.
2.

Closing of OEO's Investigation

Plaintiff alleges that the handling of his complaint by OEO investigator Ajibade gives
rise to an inference of discrimination. He claims that shortly after he mentioned that he had lived
in Israel, Ajibade ended the in-person interview with plaintiff and did not pursue an investigation
of his complaint. See Compl. at 26, Attach. 9, Letter from Sicular to Santana (Aug. 9, 2012).
Israel is a nation of many cultures and religions; terminating a full interview after mention of
Israel is insufficient causal evidence of religious discrimination.
Even if plaintiff could establish a prima facie case, he has failed to rebut defendants'
legitimate, nondiscriminatory reasons for its actions. Ajibade explained that she terminated the
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meeting due to "belligerent, argumentative and openly hostile" behavior during a June 5, 2012
phone conversation and "threatening and combative behavior" during the June 29, 2012 inperson meeting. See Compl. at 22, Attach.5, Letter from Ajibade to Roy Sicular (June 29,
2012). Plaintiff has provided no evidence to demonstrate that this concern was pretextual.

3.

Termination by DOE

Plaintiff alleges that his teaching license/certificate was revoked but that other teachers of
a different age, race, religion, or gender were not similarly disciplined. See Compl. at 21,
Attach. 4, Letter from Sicular to Peel (Sept. 30, 2012). A plaintiff relying on disparate treatment
evidence "must show she was similarly situated in all material respects to the individuals with
whom she seeks to compare herself." See Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.
2000). In support of this claim, he has provided a list of teachers who "are not to return to the
school." See Compl. at 23, Attach. 6, Letter from Barbara Sanders to DOE (June 26, 2007). The
list does not demonstrate that they are similarly situated. It contains no information about
whether these individuals were placed on an ineligible list due to an arrest, had their teaching
license/certificates terminated, or are of a different age, race, religion, or gender than plaintiff.
His claim is based solely upon speculation.

B.

Retaliation

Plaintiff does not make a prima facie case of retaliation. He alleges that his termination
was retaliation for filing a complaint with OEO and SDHR. See Compl. at 2. Unsupported by
any evidence is a causal connection between this protected activity and his termination. He was
notified of his initial termination on September 8, 2011. See Pl.'s Rebuttal at 8, Attach. 2, Letter
from DOE to Sicular. While awaiting appeal of this decision, he filed a complaint with OEO on
May 30, 2012 and with SDHR on July 11, 2012. See Compl. at 2, 7. Finally, on September 24,
8

.. . . ,.
2012, he received a letter notifying him of his termination. See Pl.'s Rebuttal at 10, Attach. 5,
Letter from DOE to Sicular (Sept. 24, 2012). This letter had the exact same content as the
previous termination notification from over a year prior. See Pl.'s Rebuttal at 8. DOE's Office
of Appeals and Reviews reached the same conclusion to terminate plaintiffs licenses and
certificates both before and after plaintiff filed his complaints with OEO and SDHR.
Even if plaintiff could establish a prima facie case of retaliation, he has not rebutted the
defendant's legitimate, non-retaliatory reasons for its disciplinary actions. There is no indication
that DOE had insufficient cause to terminate plaintiffs employment after he had been noted for
having a class management problem, placed on the Ineligible/Inquiry List for an arrest, and h~d
his case twice considered by DOE's Office of Appeals and Reviews.

V.

Conclusion
Summary judgment is grantedto the defendants on all of plaintiffs claims. The case is

dismissed. No costs or disbursements are awarded.

SO ORDERED.

tdk

Jack B. Weinstein
Senior United States District Judge
Date: January 30, 2014
Brooklyn, New York

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A,

1