Jones et al v. New York City Department of Education et al
MEMORANDUM and ORDER: Defendants motion 45 for summary judgment is denied. The Court will re-schedule a pre-trial conference to discuss a jury trial date once the health crisis with COVID-19 has improved. Ordered by Judge Frederic Block on 2/16/2021. (Innelli, Michael)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
Case No. 1:16-cv-1149 (FB) (RML)
-againstNEW YORK CITY DEPARTMENT OF
EDUCATION, ET AL.,
For the Plaintiff:
RUDY DERMESROPIAN, ESQ.
260 Madison Avenue, 15th Floor
New York, NY 10016
For the Defendant:
JAMES E. JOHNSON
Corporation Counsel for the City of
By: CHRISTOPHER COYNE, ESQ.
100 Church Street, Room 2-117
New York, NY 10007
BLOCK, Senior District Judge:
Plaintiff Anthony Jones brings claims against the New York City Department
of Education (“DOE”), Bernard Gassaway, and unidentified defendants alleging
discrimination and retaliation in violation of the Age Discrimination in Employment
Act (“ADEA”). Defendant New York City Department of Education has moved for
The facts of this case were summarized in the Memorandum and Order
issued on February 21, 2018 granting in part and denying in part the defendant’s
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motion to dismiss. See ECF No. 21. For the reasons that follow, defendant’s
motion for summary judgment is denied.
Summary judgment is appropriate when “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining
whether summary judgment is appropriate, we must resolve all ambiguities and draw
all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Tolbert v. Smith, 790 F.3d 427,
434 (2d Cir. 2015).
II. Plaintiff's Title VII Age Discrimination Claim
Employment discrimination cases are analyzed using the McDonnell Douglas
Corp. v. Green burden shifting framework. 411 U.S. 792 (1973). Under the test, “a
plaintiff must first establish a prima facie case of discrimination by showing that:
‘(1) she is a member of a protected class; (2) she is qualified for her position; (3) she
suffered an adverse employment action; and (4) the circumstances give rise to an
inference of discrimination.’” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d
72, 83 (2d Cir. 2015) (quoting Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d
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After a plaintiff has established a prima facie case, “a presumption arises that
more likely than not the adverse conduct was based on the consideration of
impermissible factors.” Id. (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S.
248, 253-54 (1981)). At that point, the burden “shifts to the employer to ‘articulate
some legitimate, nondiscriminatory reason’ for the disparate treatment.” Id. (citing
McDonnell Douglas, 411 U.S. at 802). “If the employer articulates such a reason,
the burden shifts back to the plaintiff to prove that the employer's reason ‘was in fact
pretext’ for discrimination.” Id. (citing McDonnell Douglas, 411 U.S. at 804).
The purpose of the McDonnell Douglas burden-shifting framework is to
“progressively ... sharpen the inquiry into the elusive factual question of intentional
discrimination.” Texas Dep't of Cmty. Affairs, 450 U.S. at 255 n.8.
The Court is mindful of the Second Circuit’s warning that it “must be
especially cautious in deciding whether to grant th[e] drastic provisional remedy [of
summary judgment] in a discrimination case, because the employer's intent is often
at issue and careful scrutiny may reveal circumstantial evidence supporting an
inference of discrimination.” Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999);
see also Mandell v. Cty. of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003).
A. Member of a Protected Class
The parties do not dispute that plaintiff was 61 at the time he was terminated,
which places him within a protected class. See 29 U.S.C. § 631(a) (providing that
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the ADEA applies to individuals who are at least 40 years of age). The defendant
argues the plaintiff fails to establish that age was the “but-for” cause of his
termination because of an incident where he allegedly swore at a group of students
from the track team (“the swearing incident”). See ECF No. 45-1 at 4. In the
defendant’s view, the swearing incident was the cause of plaintiff’s firing.
In response, the plaintiff alleges that the swearing incident was fabricated and
contends that he was fired on pretextual grounds. Plaintiff points to the fact that the
purported recording of the incident has not been produced, the investigation was
conducted by the subject of plaintiff’s complaints, which arguably poses a conflict
of interest, and the student who allegedly complained does not even report plaintiff
as making the statements in question. Since there are factual disputes regarding
material aspects of the swearing incident, the defendant’s arguments do not
extinguish plaintiff’s prima facie case on this element.
B. Qualified for Position
Plaintiff contends he had an “extensive, long and very successful career as a
track coach” and “was involved with the track team at Boys and Girls High School
(“BGHS”) for approximately 42 years without any complaints or write-ups.” ECF
No. 46 at 7. Although he was not a certified teacher, plaintiff held a master’s degree
in secondary education, and his students performed well on the Regents exams.
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The defendant notes plaintiff was not a licensed teacher and that his substitute
teaching certificate did not entitle him to be designated as a long-term substitute.
These contentions do not undermine plaintiff’s ability to establish this element of
his prima facie case. See Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 45
(2d Cir. 2015) (“[a]t the summary judgment stage, a plaintiff may satisfy this burden
by showing that she ‘possesses the basic skills necessary for performance of [the]
job’”) (quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir.
C. Adverse Employment Action
An adverse employment action occurred when plaintiff was terminated in the
summer of 2014. See, e.g., Green v. Town of E. Haven, 952 F.3d 394, 404 (2d Cir.
2020) (“[p]lainly an employee's ‘discharge,’ 29 U.S.C. § 623(a)(1), is an adverse
D. Inference of Discrimination
Plaintiff asserts that he has raised an inference of discrimination because the
defendant treated him differently than a similarly situated, younger employee who
engaged in similar conduct. The defendant asserts that plaintiff cannot raise an
inference of discrimination because (1) plaintiff failed to present evidence that
similarly situated younger workers were treated more favorably, (2) plaintiff was
hired and fired by the same person, who was also in the same protected group as
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plaintiff, and (3) plaintiff was replaced by a person who was a part of the protected
As to the first argument, plaintiff presented evidence that a substantially
younger and less experienced coach – who had worked as the head coach of the
female track team at BGHS – was treated more favorably than plaintiff.
Although the principal who fired plaintiff is also a member of the same
protected class, this fact is not dispositive. The Supreme Court has rejected the idea
that one member of a protected class cannot discriminate against another member of
that same class. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78
(1998) (“Because of the many facets of human motivation, it would be unwise to
presume as a matter of law that human beings of one definable group will not
discriminate against other members of their group”). Moreover, the plaintiff points
out that he was a teacher at BGHS for many years before defendant Gassaway
Finally, though the defendant correctly notes plaintiff was initially replaced
by a member of the same age group, that was apparently a temporary change. The
permanent replacement was “significantly younger.” ECF No. 46 at 19.
The burden to establish a prima facie case is “neither onerous nor intended to
be rigid, mechanized or ritualistic.” Tolbert v. Smith, 790 F.3d 427, 435 (2d Cir.
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2015) (internal citations and quotation marks omitted). The Court finds that plaintiff
has established a prima facie case.
E. Burden Shift to Defendant: Legitimate, Nondiscriminatory Reasons for
the Disparate Treatment
The defendant contends plaintiff was terminated because of the swearing
incident. Specifically, three students approached Principal Gassaway and reported
that plaintiff had yelled and cursed at them. According to the defendant, Principal
Gassaway heard an audio recording of what appeared to be plaintiff screaming and
cursing at a student. While the nature of this incident is disputed by plaintiff, the
defendant has “clearly set forth, through the introduction of admissible evidence, the
reasons for” the disparate treatment. Burdine, 450 U.S. at 255; see also Bucalo v.
Shelter Island Union Free Sch. Dist., 691 F.3d 119, 132 (2d Cir. 2012). This is
sufficient to satisfy the burden of establishing legitimate, non-discriminatory reasons
for the termination of plaintiff.
F. Burden Shift to Plaintiff: Employer’s Reasons Were Pretext for
Where an employer articulates a non-discriminatory reason for firing the
plaintiff, the burden shifts back to the plaintiff to “prove that the employer's
proffered reason was a pretext for discrimination.” Delaney v. Bank of America
Corp., 766 F.3d 163, 168 (2d Cir. 2014) (quoting McPherson v. N.Y.C. Dep't of
Educ., 457 F.3d 211, 215 (2d Cir. 2006)). To establish the employer’s reason was in
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fact a pretext for discrimination, the plaintiff must establish the employer was more
likely than not motivated by a discriminatory reason or that the employer's reason is
unworthy of belief. See McDonnell Douglas, 411 U.S. at 804-05; Burdine, 450 U.S.
at 256. Although “direct evidence of an employer’s discriminatory intent will rarely
be found,” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997), “[e]ven in
the discrimination context ... a plaintiff must provide more than conclusory
allegations to resist a motion for summary judgment,” Delaney, 766 F.3d at 170.
Plaintiff contends he has put forward more than conclusory allegations and that
triable issues of fact exist that should be decided by a jury.
Although plaintiff did not possess a full-time teaching certificate, there is
evidence that he was effectively fulfilling the responsibilities of a regular teacher at
BGHS by teaching five math classes and acting as the track coach. EFC No. 46 at
20. Moreover, there is a well-documented history of plaintiff filing successful
grievances arguing that he was coded improperly. This meant that the school was
treating him as a substitute teacher for purposes of pay and benefits, although he was
working full time. In his deposition, plaintiff conveyed that the principal who fired
him made numerous age-related comments – including “I was 12 when he started
coaching” and “you old timers, if you don’t know how to do [certain things] I’m
going to get rid of you.” See ECF No. 46 at 12-13 (collecting statements). And, of
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course, plaintiff disputes the swearing incident that serves as the primary basis of
With this history in mind, plaintiff principally argues that another teacher,
Jamaal Harvey, was treated more favorably than he was. Mr. Harvey was allegedly
also involved in “heated conversations” like plaintiff. ECF No. 46 at 7. Specifically,
Harvey allegedly “curse[d] at Principal Hall from the Marcy Avenue campus, which
was confirmed by the signed statement of Assistant Coach Cassandra Clark.” ECF
No. 46-1 at 79. However, this did not lead to Mr. Harvey’s termination; rather he
was promoted and ultimately permitted to replace plaintiff as the boy’s track coach.
The Court is persuaded that a reasonable juror could find the defendant’s
reasons for terminating the plaintiff were related to a discriminatory motive. Thus,
there are genuine issues of material fact concerning plaintiff’s age discrimination
claim. The defendant’s motion for summary judgment is denied as to that claim.
III. ADEA Retaliation
The ADEA forbids an employer from retaliating against an employee for
complaining of employment discrimination on the basis of age. Kessler v.
Westchester Cty. Dep't of Soc. Servs., 461 F.3d 199, 205 (2d Cir. 2006). ADEA
retaliation is also “analyzed under the McDonnell Douglas burden-shifting test.”
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010).
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To establish a prima facie case, Jones “must show (1) that he participated in
a protected activity, (2) that he suffered an adverse employment action, and (3) that
there was a causal connection between h[is] engaging in the protected activity and
the adverse employment action.” Gorzynski, 596 F.3d at 110. In deciding whether
an allegation is plausible, “judges [are] to rely on their ‘experience and common
sense,’ and to consider the context in which a claim is made.” Irrera v. Humpherys,
859 F.3d 196, 198 (2d Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679
Plaintiff has provided evidence that he successfully filed at least four
grievances seeking pay and benefits consistent with his work – the protected activity.
Plaintiff also provided evidence that Principal Gassaway was unfavorably disposed
toward him because of his filing of the grievances. See ECF No. 46 at 23. As
discussed above, this meant the school was treating plaintiff as a substitute teacher
even though he was working full-time, negatively impacting his pay and benefits.
There is evidence that a condition of plaintiff’s employment was that he stop filing
such grievances. A causal connection can be established “indirectly by showing that
the protected activity was closely followed in time by the adverse employment
action.” Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 131 (2d Cir.
2012) (internal citations omitted). “[C]ourts in this circuit have typically measured
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that gap as a matter of months, not years.” Bucalo, 691 F.3d at 131. Plaintiff’s last
grievance was filed in 2014, and he was fired in July of 2014.
Plaintiff adequately alleges that the adverse employment action of termination
was motivated by his filing of grievances, and a reasonable juror could conclude the
elements of ADEA retaliation have been established.
For the foregoing reasons, defendant’s motion for summary judgment is
_/S/ Frederic Block _______
Senior United States District Judge
Brooklyn, New York
February _16_, 2021
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