Altman v. New Rochelle Public School District et al

Filing 97

OPINION AND ORDER re: 80 MOTION for Summary Judgment filed by New Rochelle Public School District. For the foregoing reasons, the District's motion for summary judgment is DENIED. The Court respectfully directs the Clerk to ter minate the motion at ECF No. 80. The parties are directed to appear for an in-person pretrial conference at 12:30 p.m. on July 8, 2016. SO ORDERED. (Pretrial Conference set for 7/8/2016 at 12:30 PM before Judge Nelson Stephen Roman.) (Signed by Judge Nelson Stephen Roman on 6/2/2016) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----------------------------------------------------------------){
HUI ALTMAN,
Plaintiff,
-against-

13-cv-3253 (NSR)
OPINION AND ORDER

NEW ROCHELLE PUBLIC SCHOOL DISTRICT,
MR. KOLAHIFAR, MR. ORGANISCIAK,
and MR. MENDEZ,
Defendants.

----------------------------------------------------------------){
NELSONS. ROMAN, United States District Judge:
On June 19, 2014, the Court conve1ted Defendants' motion to dismiss into a motion for
summary judgment, and granted Defendants summary judgment with respect to Plaintiffs age
discrimination claim. (See Docket No. 44 (the "June 19 Opinion").) Defendants Mendez,
Kolahifar, and Organisciak were subsequently dismissed from this action. (See Docket Nos. 51,
72.) Now before the Court is Defendant New Rochelle Public School District's (the "District")
motion for summary judgment on Plaintiffs remaining claim for national origin discrimination
brought pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e
to 2000e- l 7.
The Court presumes the parties' familiarity with the facts previously summarized in its
Opinion and Order on Defendants' first motion for summary judgment and will not restate them
here. In reaching its decision on the pending motion, the Court has taken into consideration the
parties' submissions in connection with this motion, including their respective Local Civil Rule
56.1 Statements and accompanying declarations and affidavits.
f'f:=:::~::=:====F=o~r~th~e=:::£~o;ll~o;;w~ing reasons, the District's motion for summary judgment is DENIED.

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#1
DA TE r-.
1-LE_D_:_G._,_f l-.,f,.....'to_i_<,.._.
"'
1

STANDARD ON A MOTION FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides: “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). The moving
party bears the initial burden of pointing to evidence in the record, “including depositions,
documents [and] affidavits or declarations,” id. at 56(c)(1)(A), “which it believes demonstrate[s]
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The moving party may also support an assertion that there is no genuine dispute by
“showing . . . that [the] adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(B). If the moving party fulfills its preliminary burden, the onus shifts to
the non-moving party to identify “specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal citation and quotation marks
omitted). A genuine dispute of material fact exists when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. at 248; accord Benn v. Kissane, 510 F.
App’x 34, 36 (2d Cir. 2013) (summary order). Courts must “constru[e] the evidence in the light
most favorable to the non-moving party and draw[ ] all reasonable inferences in its favor.”
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal
quotation marks omitted). In reviewing the record, “the judge’s function is not himself to weigh
the evidence and determine the truth of the matter,” nor is it to determine a witness’s credibility.
Anderson, 477 U.S. at 249. Rather, “[t]he inquiry performed is the threshold inquiry of
determining whether there is the need for a trial.” Id. at 250.
Summary judgment should be granted when a party “fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
2

bear the burden of proof at trial.” Celotex, 477 U.S. at 322. The party asserting that a fact is
genuinely disputed must support their assertion by “citing to particular parts of materials in the
record” or “showing that the materials cited do not establish the absence . . . of a genuine
dispute.” Fed. R. Civ. P. 56(c)(1). “Statements that are devoid of any specifics, but replete with
conclusions, are insufficient to defeat a properly supported motion for summary judgment.”
Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999). The nonmoving party “may not
rely on conclusory allegations or unsubstantiated speculation.” FDIC v. Great Am. Ins. Co., 607
F.3d 288, 292 (2d Cir. 2010) (internal citation and quotation marks omitted). Moreover, “[a nonmoving party’s] self-serving statement, without direct or circumstantial evidence to support the
charge, is insufficient to defeat a motion for summary judgment.” Fincher v. Depository Trust &
Clearing Corp., No. 06 Cv. 9959 (WHP), 2008 WL 4308126, at *3 (S.D.N.Y. Sept. 17, 2008)
aff’d, 604 F.3d 712 (2d Cir. 2010) (citing Gonzales v. Beth Israel Med. Ctr., 262 F. Supp. 2d
342, 353 (S.D.N.Y. 2003)).
DISCUSSION
Plaintiff’s only remaining claim is one for national origin discrimination under Title VII.
The Court previously denied the District summary judgment on Plaintiff’s claim, finding that
Plaintiff established a prima facie case of discrimination, and, in response to the District
proffering a nondiscriminatory rationale for Plaintiff’s termination, also established a genuine
issue of material fact with respect to the existence of pretext. (See June 19 Opinion at 18-25.)
The District now argues, once again, that Plaintiff cannot make out a prima facie case of
discrimination or establish pretext. The Court will address each argument in turn.

3

I.

Plaintiff’s Prima Facie Case
“In order to establish a prima facie case of discriminatory termination of employment

[under Title VII], the plaintiff must show that she belongs to a protected class, that she was
performing her duties satisfactorily, and that she was discharged under circumstances giving rise
to an inference of discrimination on the basis of her membership in the protected class.” Gomez
v. Pellicone, 986 F. Supp. 220, 227 (S.D.N.Y. 1997) (citing McLee v. Chrysler Corp., 109 F.3d
130, 134 (2d Cir. 1997)). “[T]he level of proof a plaintiff is required to present in order to
establish a prima facie case of discrimination is low.” De la Cruz v. N.Y.C. Human Res. Admin.
Dep’t of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996) (internal citation omitted). The District
asserts that Plaintiff cannot establish a prima facie case because she was not performing her job
satisfactorily and because the circumstances of her termination do not give rise to an inference of
discrimination based on national origin.
A. Plaintiff’s Job Performance
As the Court previously explained, Plaintiff “need not demonstrate that h[er] performance
was flawless or superior. Rather, [s]he need only demonstrate that [s]he ‘possesses the basic
skills necessary for performance of [the] job.’” (June 19 Opinion at 19 (quoting De la Cruz, 82
F.3d at 20 (quoting Powell v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir.), cert. denied, 439
U.S. 984 (1978)).) Relying on Mendez’s performance evaluations of Plaintiff during her tenure
with the District, the District argues that Plaintiff was not performing her duties in a satisfactory
manner and therefore cannot establish a prima facie case of discrimination. (Def.’s Mot. at 411.)
In connection with the District’s first motion for summary judgment, the Court found that
Mendez’s “performance reviews contained both positive and negative comments,” with the
4

positive comments including that Plaintiff “demonstrates knowledge of the target language” and
that “classroom routines and procedures are clear and function smoothly.” (Id. at 19 (citing
Affidavit of Juan Mendez, Docket Nos. 31, 84, (“Mendez Aff.”), Ex. G. at 3).) When combined
with Plaintiff’s qualifications as a native Mandarin speaker and her teaching experience and
training, the Court found that Plaintiff demonstrated that she “‘possesse[d] the basic skills
necessary’ to perform the job,” (id. (citing De la Cruz, 82 F.3d at 20)), and denied the District
summary judgment on this issue.
Nothing proffered by the District in connection with this motion changes the Court’s
initial determination that Plaintiff possessed the basic skills necessary for the performance of her
job. The District’s presentation of cherry-picked negative comments from Plaintiff’s
performance reviews – the same reviews proffered in connection with the first summary
judgment motion (compare Docket Nos. 17, 31 to Docket No. 84) – fails to undermine or refute
the positive comments on which the Court relied in concluding that Plaintiff met her initial
burden. Without more, the Court will not upset its previous determination. Summary judgment
is therefore denied.
B. Inference of Discrimination
The District asserts that the statements alleged to have been made regarding Plaintiff’s
national origin – that she should work in Chinatown and that it might be better that she work for
her own people (see Plaintiff’s Reply to Defendant’s Local Rule 56.1 Statement of Material
Facts and Counterstatement of Material Facts (“Pl.’s 56.1”) ¶ 177) – do not give rise to an
inference of discrimination, precluding Plaintiff from establishing her prima facie case of
discrimination. The District essentially recycles its arguments from its first motion for summary
judgment, arguing that Organisciak and Kolahifar were not decision makers and any statements
5

purportedly made by them cannot be used to infer discrimination, as well as that the same actor
defense requires dismissal of the claim. The District also argues that there is no temporal
proximity between the decision to terminate Plaintiff and the alleged discriminatory remarks.
First, although the District attempts to downplay the involvement of Organisciak and
Kolahifar in the decision to terminate Plaintiff, there is ample evidence on which a rational fact
finder could rely to find that both individuals played a meaningful role in the decision to
terminate Plaintiff. Despite the District’s assertion that the decision to terminate Plaintiff was
made solely by Mendez, Organisciak affirmed that he and Kolahifar, as well as other
administrators, participated in the January 2012 meeting at which the decision was purportedly
made to recommend to the Board of Education that Plaintiff be terminated. (Affidavit of Richard
E. Organisciak, Docket No. 86, (“Organisciak Aff.”), ¶¶ 4-9.) Specifically, Organisciak stated
that “[w]hen the administrators met to review Ms. Altman’s probationary employment, it was
decided that a recommendation would be made to the Board of Education to terminate her . . . .”
(Id. ¶ 8.) The fact that the decision was purportedly made based on Mendez’s recommendation
is of no consequence, (id. ¶ 9), as a rational fact finder could conclude from Organisciack’s
affidavit that he and Kolahifar were a part of the decision making process concerning the
termination of Plaintiff’s employment. Mendez’s testimony supports this notion, as he testified
that he was only permitted to make a recommendation for termination and that the final decision
to terminate an employee was not his to make. (See Declaration of Dennis D. Kitt, Docket No.
96, (“Kitt Decl.”), Ex. F at 113-116.) Moreover, the Court initially concluded that when viewing
the evidence in the light most favorable to Plaintiff, the evidence did support the conclusion that
Mendez was the sole decision maker, as Organisciak wrote the notice recommending Plaintiff’s
termination and Kolahifar participated in the meeting at which Plaintiff was terminated. (See
6

June 19 Opinion at 20.) Again, nothing uncovered in discovery alters that conclusion.
Second, the District renews its same actor defense, which the Court previously explained
may be relevant in this case. (Id. at 23.) Nevertheless, the District has not overcome the Court’s
concerns with respect to Organisciak’s purported “Chinatown” statement, as there is evidence on
which a rational fact finder could rely to conclude that Organisciak was involved in the decision
to terminate Plaintiff, negating the District’s argument that Mendez was the sole decision maker
involved in Plaintiff’s hiring and firing. Further, although Organisciak now denies having made
the “Chinatown” statement, (Organisciak Aff. ¶ 21), at best this creates a material dispute of fact
between Plaintiff and Organisciak, and the Court is decidedly not permitted to weigh the
credibility of Organisciak’s denial against Plaintiff’s allegations. 1
Third, there are genuine questions of fact with respect to the timing of Mendez’s decision
to recommend Plaintiff’s termination and the discriminatory statements purportedly made by
Organisciak and Kolahifar. Although the District argues that Mendez communicated his
recommendation to terminate Plaintiff in January 2012, Mendez’s own testimony contradicts this
assertion and must therefore be evaluated by a jury. Mendez testified that leading up to his final
review of Plaintiff on March 22, 2012, (Mendez Aff., Ex. G), he had not decided whether to
terminate Plaintiff: “I could have been thinking about it. It was in my head. But the decision,
per se, if you asked me if I had said she’s not coming back, no. It was back and forth.” (Kitt
Decl. at 106:15-20.) If such was the case, then the time between the decision to terminate
Plaintiff and the purported discriminatory statements would only have been a few days, rather
than the nearly three months that the District suggests as the basis for its argument that no
1

The District asks the Court to “discredit” Plaintiff’s allegations, essentially arguing that there is ample evidence to
demonstrate that Plaintiff fabricated her allegations. (See Def.’s Mot. at 15-16.) It is well-settled, however, that
such credibility determinations are not appropriate on a motion for summary judgment. Anderson, 477 U.S. at 249.

7

temporal proximity existed. (See Def.’s Mot. at 13-14.) Such a short period of time is sufficient
to support an inference of discrimination.
Ultimately, the District has not adduced evidence following discovery that would
undermine or refute the facts upon which the Court previously determined that Plaintiff
established an inference of discrimination, and thus a prima facie case of discrimination. The
District’s motion for summary judgment on this point is denied.
II.

Legitimate, Nondiscriminatory Reasons for Termination and Pretext
Having determined that Plaintiff established her prima facie case, the Court now turns to

whether the District has proffered legitimate, nondiscriminatory reasons for Plaintiff’s
termination. “An employer may fire an employee for a good reason, a bad reason, a reason
based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory
reason.” DeLuca v. Allied Domecq Quick Serv. Rests., No. 03 Cv. 5142 (JFB) (AKT), 2006 WL
1662611, at *9 (E.D.N.Y. June 13, 2006) (internal citation and quotation marks omitted).
Nevertheless, “an employer’s explanation of its reasons must be clear and specific in order to
afford the employee a full and fair opportunity to demonstrate pretext. Where an employer’s
explanation, offered in clear and specific terms, is reasonably attributable to an honest even
though partially subjective [belief], no inference of discrimination can be drawn.” Byrnie v.
Town of Cromwell, Bd. of Educ., 243 F.3d 93, 105 (2d Cir. 2001) (internal citations and
quotation marks omitted).
The Court previously held that the District proffered sufficient evidence to satisfy their
burden of demonstrating a legitimate, nondiscriminatory reason for Plaintiff’s termination. (See
June 19 Opinion at 23.) Following discovery, Plaintiff does not challenge the District on this
issue. The burden therefore shifts back to Plaintiff to “show that the proffered reason was
8

merely a pretext for discrimination, which may be demonstrated either by the presentation of
additional evidence showing that the employer’s proffered explanation is unworthy of credence,
or by reliance on the evidence comprising the prima facie case, without more.” Heyman v.
Queens Vill. Comm. for Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d
68, 72 (2d Cir. 1999) (internal citation and quotation marks omitted). “Of course, [t]o defeat
summary judgment within the McDonnell Douglas framework . . . the plaintiff is not required to
show that the employer’s proffered reasons were false or played no role in the employment
decision, but only that they were not the only reasons and that the prohibited factor was at least
one of the ‘motivating’ factors.” Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d
107, 123 (2d Cir. 2004) (internal citation and quotation marks omitted). See also Ya-Chen Chen
v. City Univ. of New York, 805 F.3d 59, 76 n.13 (2d Cir. 2015) (citing Holcomb v. Iona Coll.,
521 F.3d 130, 141-42 (2d Cir. 2008)).
The Court previously determined that the temporal proximity between the “Chinatown”
comments and Plaintiff’s notification of her termination provided an inference by which a
rational fact finder could conclude that the “comments were related to or informative of the
decisional process which resulted in Plaintiff’s termination.” (June 19 Opinion at 24.) Nothing
uncovered in discovery and proffered in connection with this motion undermines the Court’s
prior determination. 2
The District also argues that collateral estoppel bars reconsideration of the issue of
pretext because a jury in Plaintiff’s state court defamation case determined that the stated reason
for her termination – poor teaching performance – was not false. The District’s argument glosses
2

The District renews its argument that Organisciak and Kolahifar were not decision makers in order to defeat any
inference of pretext. (Def.’s Mot. at 20.) The Court previously found this argument unpersuasive in its June 19
Opinion. (June 19 Opinion at 23-24.) Nothing presented in the instant motion changes the Court’s opinion.

9

over the fact that Plaintiff may prove her Title VII claim by demonstrating that the
“impermissible factor was a motivating factor, without proving that the employer’s proffered
explanation was not some part of the employer’s motivation.” Holcomb, 521 F.3d at 142 (citing
Fields v. N.Y. State Office of Mental Retardation & Developmental Disabilities, 115 F.3d 116,
120 (2d Cir. 1997)). See also Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir.
2000) (“It is therefore now settled that a plaintiff in a Title VII action need not disprove a
defendant’s proffered rationale for its adverse actions in order to prevail.”) In other words, the
state court jury did not conclude that Plaintiff’s poor performance was the only reason for her
termination, therefore permitting Plaintiff to pursue her Title VII claim in this action.
In short, Plaintiff may prevail on her Title VII claim by proving that the decision to
terminate her was based in part on her national origin. Although there is sufficient evidence for a
jury to conclude that the District terminated Plaintiff solely based on her performance, there is
enough evidence to the contrary that the Court cannot remove this case from the jury and decide
it as a matter of law. Based on the evidence presented in this motion, a rational fact finder could
conclude that: 1) Organisciak and Kolahifar made discriminatory statements to Plaintiff; 2)
Organisciak and Kolahifar played a meaningful role in the decision to terminate Plaintiff; and 3)
based on the proximity of the discriminatory statements to Plaintiff’s termination, Plaintiff’s
national origin was a motivating factor in the District’s termination decision. The District’s
motion for summary judgment is therefore denied.

10

CONCLUSION
For the foregoing reasons, the District's motion for summary judgment is DENIED. The
Court respectfully directs the Clerk to terminate the motion at ECF No. 80. The parties are
directed to appear for an in-person pretrial conference at 12:30 p.m. on July 8, 2016.

Dated:

June~, 2016
White Plains, New York

11