Phillip v. The City of New York et al, No. 1:2009cv00442 - Document 46 (E.D.N.Y. 2012)
Court Description: ORDER granting in part and denying in part 31 Defendants' Motion for Summary Judgment. Plaintiff is ordered to show cause on or before May 3, 2012 why all claims against defendant Martha Rodriguez-Torres should not be dismissed. Ordered by Senior Judge I. Leo Glasser on 4/19/2012. (Green, Dana)
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Phillip v. The City of New York et al Doc. 46 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x CASEY PHILLIP, Plaintiff, Mem orandum an d Order 0 9 Civ. 442 - against THE CITY OF NEW YORK, et al. Defendants. ------------------------------------------------------x GLASSER, United States District J udge: Plaintiff Casey Phillip (“plaintiff” or “Phillip”), a form er teacher with the New York City Departm ent of Education (“DOE”), filed this action against the City of New York (“NYC”), the DOE, and form er supervisors, Principal Daysi Garcia and Local Instructional Superintendent, Martha Rodriguez-Torres, in their in dividual capacities (collectively, “defendants”). Plaintiff alleges that, based on his race or national origin as a Black m an of Caribbean descent and Antiguan citizenship, defendants subjected him to discrim ination, a hostile work environm ent, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 20 0 e, et seq. (“Title VII”); the Civil Rights Act of 18 66, 42 U.S.C. § 1981 (“Section 1981”); the New York State Hum an Rights Law (“NYSHRL”), N.Y. Exec. Law § 296, et seq. (McKinney 20 10 ); and the New York City Hum an Rights Law (“NYCHRL”), N.Y.C. Adm in. Code § 8 -50 2. Before the Court is the defendants’ Motion for Sum m ary J udgm ent. For the following reasons, defendants’ m otion is granted in part and denied in part. 1 Dockets.Justia.com BACKGROU N D The following facts are undisputed, unless otherwise noted. From 20 0 3 to 20 0 7, plaintiff was em ployed as a teacher at Public School 65 (“P.S. 65”) in Brooklyn, New York. Defendants’ Local Rule 56.1 Statem ent (“Defs.’ R. 56.1”) ¶¶ 3-5. Plaintiff selfidentifies as Black, of Caribbean descent, and is a citizen of Antigua. Id. ¶ 2. Daysi Garcia (“Principal Garcia”) was appointed Principal of P.S. 65 in August, 20 0 4. Id. ¶ 6. Principal Garcia self-identifies as Hispanic of Caribbean (Dom inican) descent. Id. ¶ 7. Superintendent Martha Rodriguez-Torres (“Superintendent Rodriguez-Torres”) selfidentifies as Hispanic. Declaration of J ane E. Andersen dated J uly 21, 20 10 (“Andersen Decl.”), Ex. V, at 10 . I. Pla in tiff’s Alle ge d D is crim in atio n an d H o s tile W o rk En viro n m e n t Plaintiff alleges that beginning in Novem ber 20 0 4 and for several years thereafter, defendants discrim inated against him on the basis of his race, color, and national origin, creatin g a hostile work environm ent, and then retaliated against him when he com plained of this discrim ination. In support of his claim s, plaintiff alleges the following acts. A. 2 0 0 4 -2 0 0 5 Sch o o l Ye ar In Novem ber, 20 0 4, Principal Garcia visited plaintiff’s classroom and observed him teaching. During the observation, Principal Garcia positioned her chair so that she had her back to him , facing the children. Am . Com pl. ¶ 17; Defs.’ R. 56.1 ¶¶ 10 7-10 8. Plaintiff alleges that in his ten years of teachin g, no observer ever sat with their back to him an d that non-Black and non-Caribbean colleagues told him Principal Garcia did not sit this way during their observations. Am . Com pl. ¶ 17. 2 In the fall of 20 0 4, a parent com plained to Principal Garcia about com m ents plaintiff m ade to his students. Id. ¶ 18. Plain tiff alleges that Principal Garcia failed to follow protocol when she did not call him into her office im m ediately, to give him an opportunity to respond to the parent’s com plaint. Id. Plaintiff alleges that, in contrast, “she did follow protocol in handling com plaints about his non-Black, non-Caribbean colleagues.” Id. Plaintiff alleges that on J une 28, 20 0 5—the last day of the school year—Principal Garcia m ade a “racist com m ent” when she told plaintiff, “When you return in Septem ber, I’ll be a slave driver.” Id. ¶ 20 . Plaintiff was form ally observed by Principal Garcia twice during the school year: a Literacy class on October 21, 20 0 4 and a Math class on February 18, 20 0 5. Andersen Decl. Ex. E & F. Both tim es, Garcia ranked plaintiff “satisfactory.” Id. Plaintiff also received an overall rating of “satisfactory” from Principal Garcia on his 20 0 4-20 0 5 annual professional perform ance review. Affirm ation of Anthony Ofodile dated October 26, 20 10 (“Ofodile Aff.”), Ex. 1. B. 2 0 0 5 -2 0 0 6 Sch o o l Ye ar Plaintiff alleges that in October or Novem ber of 20 0 5, Principal Garcia treated him an d another Black, Caribbean teacher, Lucienne Moham m ed (“Ms. Moham m ed”), differently from two Hispanic teachers. Plaintiff alleges that Principal Garcia gave the Black, Caribbean teachers only one weeken d to prepare a lesson plan and required them to adhere to a ten-page guideline docum ent while the Hispanic teachers were given two weeks to prepare and were not given the ten-page docum ent. Am . Com pl. ¶ 21 3 Plaintiff alleges that in the spring of 20 0 6, Principal Garcia also discrim inated between him and three fem ale teachers, two of whom were White and one of whom was Hispanic. Id. ¶ 22. All four teachers were studying to be school adm inistrators and perform ed internships under Garcia’s m entorship to fulfill certain skill requirem ents, known as “com petencies.” Id. Plaintiff alleges that Principal Garcia attem pted to rescin d her agreem ent to m entor him but did not rescind her agreem ent with the other three teachers. Id. Plaintiff also alleges that during the internship Garcia discrim inated against him by assigning him “duties that had nothing to do with the requirem ents of his internship and that were actually the duties of an aide, not a teacher or an adm in istrator.” Id. In contrast, the three fem ale teachers were given tasks “that allowed them to actually m eet the requirem ents of their internships.” Id. Consequently, plaintiff alleges he was forced to seek m entoring from Assistant Prin cipal Yvette Mendez (“AP Mendez”) instead. Id. ¶ 23. Plaintiff alleges that on March 2, 20 0 6 and then several tim es thereafter, Principal Garcia “beckoned to Plaintiff with a dem eaning hand gesture,” using her index and m iddle finger, rather than calling him by his nam e. Id. ¶ 24. Sim ilarly, plaintiff alleges that Garcia em barrassed him one day when she inserted “her index finger into her open m outh” as though vom iting when plaintiff sang off-key while leading students in the national anthem . Id. ¶ 32. Plaintiff alleges she did not m ake these kinds of gestures to his non-Black, non-Caribbean colleagues. Id. ¶¶ 24, 32. Plaintiff was form ally observed by AP Mendez twice during the 20 0 5-20 0 6 school year: a Math class on February 13, 20 0 6 and a Science class on April 11, 20 0 6. Andersen Decl. Ex. H & I. AP Mendez ranked plaintiff “satisfactory.” Id. Principal Garcia gave 4 plaintiff an overall rating of “satisfactory” on his 20 0 5-20 0 6 annual professional perform ance review. Id. Ex. J . C. 2 0 0 6 -2 0 0 7 Sch o o l Ye ar In Septem ber 20 0 6, plaintiff obtained tenure. Id. Ex. XX. Plaintiff alleges that during the 20 0 6-20 0 7 school year, Principal Garcia discrim inated between him and a White teacher, J am es Caulfield (“Caulfield”), in the assignm ent of students. Am . Com pl. ¶ 25. Plaintiff alleges that Caulfield was given a class of 14-16 fourth grade students, m any with behavior and learning problem s, and a teaching assistant two full days per week. Id. In contrast, when those students advanced to plaintiff’s fifth grade class, he was assigned 25 students with behavior and learning problem s and was not given a teaching assistant, despite requests for one by plaintiff, AP Mendez, and plaintiff’s union representative. Id.; Ofodile Aff. Ex. 31, at 147-57. On October 24, 20 0 6, Principal Garcia m et with plaintiff and his union representative, Alan Weinstein, to discuss an occasion when plaintiff left students unsupervised. Andersen Decl. Ex. W. Plaintiff denies he left the students unsupervised. Am . Com pl. ¶ 26. Plaintiff alleges that “Garcia was trying to sabotage Plaintiff’s career and did not try to reprim and non-Black, non-Caribbean teachers who had actually left their students unsupervised.” Id. On Novem ber 7, 20 0 6, plaintiff attended a Staff Developm ent Day. Id. ¶ 27. During one training session utilizing the book The Cay, 1 Ilene Brodsky, a literacy coach, asked the plaintiff to read the part of Tim othy, a Black West Indian m an, because he had 1 Plaintiff m istakenly refers to this book as “The Cays.” See Am . Com pl. ¶ 27. Based on Plaintiff’s description and quotations from the book, it is clear he is referrin g to “The Cay,” a young-adult novel about a friendship between a shipwrecked White boy and an older West Indian m an who rescues him . See Theodore Taylor, The Cay (1969). 5 “the right accent.” Id. The plaintiff found the author’s description of Tim othy (referred to in the book as “the Negro”) and the dialogue, written in a phonetic vernacular, to be “insensitive, dem eaning, and hum iliating” and refused to read the passage. Id. Plaintiff alleges that, Principal Garcia “m ust have approved and condoned” the use of the book. Id. Plaintiff also alleges that he saw Principal Garcia sitting in the back of the room with another teacher, sm iling, at the tim e he was asked to do the readin g. Id. ¶ 28. Sim ilarly, plaintiff alleges that he was the only teacher required to read with his class the youngadult novel, Roll of Thunder, Hear My Cry, a book that repeatedly uses the word “nigger.” Id. ¶ 29. Plaintiff alleges that for the 20 0 6-20 0 7 school year, Principal Garcia created a segregated lunchroom . Id. ¶ 30 . Plaintiff and the only other Black, Caribbean teacher were scheduled to a separate lunch period from their two fifth grade colleagues, who were Hispanic an d Indian/ Guyanese, respectively. The teachers in third grade and fourth grade, all of whom were White or Hispanic, shared the sam e lunch periods. On Decem ber 22, 20 0 6, the staff had a luncheon in the school library. Plaintiff alleges that of the four fifth grade teachers, Principal Garcia only inform ed Rosa Ruiz, who is Hispanic, about the lunch. Id. ¶ 31. The other three teachers, who were Black or dark-skinned, were excluded. On Decem ber 14, 20 0 6, plaintiff requested som e docum ents from his personnel file. Id. ¶ 34. On Decem ber 22, 20 0 6, his union representative was inform ed that Principal Garcia shredded various docum ents from his personnel file, including “[p]laintiff’s internship docum ents and letters of recom m endation and com m endation.” Id. Plaintiff alleges that Garcia did not shred the docum ents of an y other teachers. Id. 6 Finally, plaintiff alleges that when his class perform ed at a cultural day on J une 14, 20 0 6, Principal Garcia, along with four other colleagues, walked out of the perform ance. Id. ¶ 33. Plaintiff alleges that they watched all the other classes perform and returned to the room as soon as his class finished. During the 20 0 6-20 0 7 school year plaintiff was observed by Dionne J aggon (“J aggon”), the school’s m ath coach. 2 Andersen Decl. Ex. L, at 16, 18 -23. On October 18 , 20 0 6, Decem ber 19, 20 0 6, and J anuary 16, 20 0 7, J aggon observed plaintiff teaching m ath classes. Id. Ex. N-P. J aggon was critical of plaintiff’s teaching, finding a num ber of deficiencies. Id. AP Mendez also form ally observed Plaintiff teaching a Literacy/ Social Studies class on October 3, 20 0 6 and a Math class on J anuary 25, 20 0 7. Id. Ex. Q & R. AP Men dez ranked plaintiff “satisfactory.” Principal Garcia form ally observed plaintiff teaching a Math class on March 19, 20 0 7. Id. Ex. S. Principal Garcia deem ed the lesson “unsatisfactory.” On April 16, 20 0 7, Superinten dent RodriguezTorres observed plaintiff and was critical of plaintiff’s planning and teaching. Id. Ex. T & U. Plaintiff received an overall rating of “unsatisfactory” on his 20 0 6-20 0 7 annual professional perform ance review. Id. Ex. TT. II. Pla in tiff’s Co m p lain ts A. Th e Office o f Equ al Op p o rtu n ity On Decem ber 27, 20 0 6, plaintiff filed a com plaint with the Office of Equal Opportunity (“OEO”) in the DOE, alleging Principal Garcia discrim inated against him on the basis of his color, race, and n ational origin. Id. Ex. YY. In a report dated 2 In March 20 0 7, Principal Garcia hired J aggon , who is Black and of Caribbean descent, to be an Assistant Principal at P.S. 65. Defs.’ R. 56.1 ¶¶ 28 , 192, Andersen Decl. Ex. L at 12; Ofodile Aff. Ex. 31 at 191. Therefore, the Court refers to J aggon as “AP J aggon ” for those events occurrin g after her prom otion. 7 February 20 , 20 0 7, the OEO found that “the com plainant presented no credible eviden ce that he was discrim inated against because of his race” an d Principal Garcia “provided credible responses to each of the allegations.” Id. Ex. ZZ. Plaintiff’s appeal was den ied in a decision dated May 4, 20 0 7. Id. Ex. BBB. B. Th e Equ al Em p lo ym e n t Op p o rtu n ity Co m m is s io n On J anuary 4, 20 0 7, plaintiff subm itted an Intake Questionnaire to the Equal Em ploym ent Opportunity Com m ission (“EEOC”). Id. Ex. GGG. On February 7, 20 0 7, plaintiff filed a Charge of Discrim in ation with the New York State Division of Hum an Rights and the EEOC against the DOE and NYC, alleging discrim in ation on the basis of color, race, and national origin. Id. Ex. HHH. Plaintiff subm itted an am ended charge on October 22, 20 0 7. Id. Ex. III. On Decem ber 18, 20 0 8, the EEOC issued a right-tosue letter to the plaintiff. Id. Ex J J J . Prior to the com m en cem ent of this action, the EEOC did not file any action or enter into any conciliation agreem ent regarding Phillip’s com plaint. Am . Com pl. ¶ 14. III. Pla in tiff’s Re taliatio n Claim Plaintiff alleges defendants retaliated against him after he filed his OEO and EEOC com plaints. This retaliation in cluded m ore than twenty negative perform ance evaluations; 3 referring plaintiff for psychological evaluation, Andersen Decl. Ex. CC & 3 See, Andersen Decl. Ex. X (letter from AP Mendez dated J an 2, 20 0 7 regarding failure to use Kaplan books); id. Ex Z (letter from Principal Garcia dated March 8 , 20 0 7 regarding plaintiff’s J anuary 8, 20 0 7 grievance); id. Ex AA (m em orandum from Principal Garcia dated March 16, 20 0 7 regardin g disorderly dism issal of students); id. Ex. S (report of March 19, 20 0 7 observation by Principal Garcia); id. Ex BB (letter from Principal Garcia dated March 30 , 20 0 7 regarding unsupervised students and unprofessional behavior); id. Ex. CC (letter from Principal Garcia dated April 13, 20 0 7 regarding March 30 , 20 0 7 incident of un professional behavior and directing Phillips to subm it to psychiatric evaluation); id. Ex. T (report of April 16, 20 0 7 observation by Superintenden t Rodriguez-Torres); id. Ex. DD (letter from AP J aggon dated April 19, 20 0 7 regardin g harassm ent of other teachers); id. Ex. EE (letter from AP J aggon dated April 20 , 20 0 7 regarding m ultiple instances of unprofessional conduct); id. Ex. FF (letter from AP J aggon dated April 27, 20 0 7 regardin g student discipline and un professional conduct); id. Ex. GG (letter 8 PPP; using “derogatory term s” in reference to plaintiff, Am . Com pl. ¶ 35; an d the instigation of disciplinary charges, Andersen Decl. Ex. UU & VV. On October 26, 20 0 7, plaintiff was suspended with pay. Id. Ex. UU. Approxim ately one year later, by a letter dated October 7, 20 0 8, plaintiff’s H-1B visa was revoked on the grounds that he had been suspen ded. 4 Id. Ex. WW. Without the visa, plaintiff was ineligible to work in the United States and his em ploym ent was term in ated. Defs.’ R. 56.1 ¶ 76. Plaintiff filed additional com plaints with the OEO on April 18, 20 0 7, and with the EEOC on October 22, 20 0 7, alleging he was retaliated against for his first OEO and EEOC com plaints. Andersen Decl. Ex. CCC & III. In a report dated May 30 , 20 0 7, the OEO found that the evidence did not substantiate plaintiff’s retaliation claim s. Id., Ex. DDD. Plaintiff also filed a com plaint with the DOE on J une 1, 20 0 7 against Principal Garcia and another teacher, J am es Caulfield (“Caulfield”), alleging he was harassed and threatened. Id. Ex. FFF. The Office of Special Investigations (“OSI”) referred the investigation to the regional superintendent. Id. In a decision dated J uly 9, 20 0 7, Superintendent Rodriguez-Torres found plaintiff’s com plaint to be unfounded. Id. from AP J aggon dated April 27, 20 0 7 regardin g in subordination); id. Ex. LL (letter from Principal Garcia dated May 4, 20 0 7 requirin g plaintiff to subm it lesson plans each Monday for review); id. Ex. MM (letter from Principal Garcia dated May 7, 20 0 7 giving feedback on lesson plans); id, Ex. NN (letter from Principal Garcia dated May 15, 20 0 7 regarding lesson plans, requiring resubm ission); id. Ex. HH (letter from Principal Garcia dated May 15, 20 0 7 regardin g un excused absence); id. Ex. II (m em orandum from AP J aggon dated May 16, 20 0 7 regarding classroom observations and plaintiff’s inappropriate racial com m ents); id. Ex. OO (letter from Principal Garcia dated May 25, 20 0 7 regarding perform ance deficiencies and failure to subm it lesson plans); id. Ex. PP (letter from Principal Garcia dated May 29, 20 0 7 regardin g perform ance deficiencies and lesson plans); id. Ex. J J (letter from Principal Garcia dated J une 1, 20 0 7 regardin g inappropriate social studies class m aterial); id. Ex. QQ (letter from Principal Garcia dated J une 4, 20 0 7 regardin g deficiencies in lesson plans); id. Ex. RR (letter from Principal Garcia dated J une 11, 20 0 7 regarding lesson plans and failure to resubm it); id. Ex. SS (letter from Principal Garcia dated J une 18, 20 0 7 regarding lesson plans); id. Ex. KK (letter from AP J aggon dated J une 27, 20 0 7 regardin g insubordin ation and failure to follow portfolio regulations). 4 Although hearings were held before an arbitrator, see Andersen Decl. Ex. VV, at 2, the arbitrator did not render a decision on plaintiff’s disciplinary charges prior to the revocation of plain tiff’s visa. Once plaintiff’s visa was revoked, the arbitration becam e m oot and no final decision was rendered on the m erits. See id. at 4. 9 JU RISD ICTION This Court has original jurisdiction over plain tiff’s Title VII and § 1981 claim s, claim s arising under federal law. The Court also has supplem ental jurisdiction over plaintiff’s state law discrim ination claim s. Federal courts have supplem ental jurisdiction over “all other claim s that are so related to claim s in the action within such original jurisdiction that they form part of the sam e case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). A state law claim form s part of the sam e controversy if the state and federal claim “derive from a com m on nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130 , 16 L. Ed. 2d 218 (1966). Here, the parties and alleged events and injuries that form the basis of plaintiff’s federal claim s are identical to those that form the basis of plaintiff’s state law claim s. D ISCU SSION I. Su m m ary Ju d gm e n t Sta n d ard Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to an y m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). As an initial m atter, the m oving party has the burden of dem onstrating that no genuine dispute of m aterial fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 10 6 S. Ct. 1348, 8 9 L. Ed. 2d 538 (1986). “A party asserting that a fact cannot be or is genuinely disputed m ust support the assertion by: (A) citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, 10 stipulations (including those m ade for purposes of the m otion only), adm issions, interrogatory answers, or other m aterials; or (B) showing that the m aterials cited do not establish the absen ce or presence of a genuine dispute, or that an adverse party cannot produce adm issible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Once the m oving party has m et this burden, the opposing party “‘m ust do m ore than sim ply show that there is som e m etaphysical doubt as to the m aterial facts. . . . [T]he nonm oving party m ust com e forward with specific facts showing that there is a genuine issue for trial.’” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 20 0 2) (quoting Matsushita, 475 U.S. at 58 6– 87 (emphasis in original)). “If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court m ay . . . grant sum m ary judgm ent if the m otion and supporting m aterials — including the facts considered undisputed — show that the m ovant is entitled to it.” Fed. R. Civ. P. 56(e). The Court is com pelled to draw all reasonable inferences in favor of the nonm oving party, Matsushita, 475 U.S. at 586, and a genuine dispute exists if a reasonable jury could find in favor of the non-m oving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 10 6 S. Ct. 250 5, 2510 , 91 L. Ed. 2d 20 2 (1986). However, “[i]f the eviden ce is m erely colorable, or is not significantly probative, sum m ary judgm ent m ay be granted.” Anderson, 477 U.S. at 249– 50 (citations om itted). “[T]he m ere existen ce of som e alleged factual dispute between the parties” alone will not defeat a properly supported m otion for sum m ary judgm ent. Id. at 247– 48 . “Thus, the nonm oving party m ay not rest upon m ere conclusory allegations or denials but m ust set forth ‘concrete particulars’ showing that a trial is needed.” R.G. Grp., Inc. v. Horn & 11 Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting S.E.C. v. Res. Autom ation Corp., 58 5 F.2d 31, 33 (2d Cir. 1978)). II. Sta tu te o f Lim itatio n s In seeking sum m ary judgm ent, defendants first argue som e of plaintiff’s discrim ination claim s are barred by the applicable statute of lim itations. These argum ents are without m erit. For the reasons discussed below, the m ajority of the alleged discrim inatory acts are not actionable because they were not “adverse em ploym ent actions.” The only actionable act of alleged discrim ination is plaintiff’s suspension from teaching on October 26, 20 0 7 and subsequent term ination. This act clearly falls within the applicable statutes of lim itation, as do all alleged acts of retaliation. 5 The other alleged discrim inatory acts (e.g., derogatory gestures and disparate treatm ent) though not actionable in them selves, m ay nevertheless be cited as eviden ce in support of plaintiff’s tim ely claim (for exam ple, as eviden ce of pretext) even if they fall outside the statute of lim itations. See Flynn v. N.Y. State Div. of Parole, 620 F. Supp. 2d 463, 483 (S.D.N.Y. 20 0 9) (fem ale parole officer could only recover for discreet acts of discrim ination falling within the statute of lim itations but tim e-barred discrim inatory acts were still adm issible as “background evidence.”) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 10 1, 113, 112 S. Ct. 20 61, 153 L. Ed. 2d (20 0 2); Glynn v. Cnty. of Suffolk, 50 F. App’x 58, 58 -59 (2d Cir. 20 0 2)). 5 The statute of lim itations for plaintiff’s Section 1981 discrim ination claim s is four years, 28 U.S.C. § 1658(a); J ones v. R.R. Don nelley & Sons Co., 541 U.S. 369, 124 S. Ct. 1836, 158 L. Ed. 2d (20 0 4). The statute of lim itations for plaintiff’s NYSHRL and NYCHRL claim s is three years. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 20 0 7). To be tim ely, plaintiff m ust file a charge of discrim ination with the EEOC (or state or local equivalent agency) within 30 0 days of the alleged discrim inatory act. See 42 U.S.C. § 20 0 0 e– 5(e)(1); Hill v. Citiban k Corp., 312 F. Supp. 2d 464, 472 (S.D.N.Y. 20 0 4). This requirem ent effectively acts as a statute of lim itations and therefore plaintiff could not recover under Title VII for acts of discrim ination occurring prior to April 11, 20 0 6. 12 Plaintiff’s hostile work environm ent claim s are not subject to these statutes of lim itations because “[t]heir very nature involves repeated conduct. . . . The ‘unlawful em ploym ent practice’ therefore cannot be said to occur on any particular day. . . . Such claim s are based on the cum ulative effect of individual acts. Morgan, 536 U.S. at 115 (citation om itted). For plaintiff’s hostile work environm ent claim s, “[p]rovided that an act contributing to the claim occurs within the filing period, the entire tim e period of the hostile environm ent m ay be considered by a court for the purposes of determ ining liability.” Id. at 117. III. Pla in tiff’s D is crim in atio n Claim s Pu rs u a n t to Title VII, § 19 8 1 an d th e N YSH RL Plaintiff alleges defendants subjected him to discrim ination based on his race, color, and national origin pursuant to Title VII and the NYSHRL, and to discrim ination based on his race an d color pursuant to § 1981. 6 These claim s are an alyzed under the burden-shifting fram ework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Vivenzio v. City of Syracuse, 611 F.3d 98, 10 6 (2d Cir. 20 10 ) (noting the basic analytical fram ework for claim s under Title VII, § 198 1, and the NYSHRL is the sam e). Under the McDonnell Douglas fram ework, plaintiff m ust first establish a prim a facie case of discrim in ation by dem onstratin g: (1) he is a m em ber of a protected class; (2) he was qualified for his position or was perform ing his duties satisfactorily; (3) he suffered an adverse em ploym ent action; and (4) there is som e evidence of a causal connection between his m em bership in a protected class and the adverse em ploym ent 6 Section 1981 does not protect against discrim ination based on national origin. An derson v. Con boy, 156 F.3d 167, 170 (2d Cir. 1998). 13 action. St. Mary’s Hon or Ctr. v. Hicks, 50 9 U.S. 50 2, 50 6, 113 S. Ct. 2742, 125 L. Ed. 2d 40 7 (1993). The dem onstration of a prim a facie case “in effect creates a presum ption that the em ployer unlawfully discrim in ated against the em ployee.” Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997). Although the standard to establish a prim a facie case is not high, conclusory allegations alone are insufficient to support an inference of discrim ination. Sharif v. Buck, 152 F. App’x 43, 44 (2d Cir. 20 0 5). After the plaintiff has satisfied this initial burden, the burden shifts to the em ployer to provide a legitim ate, non-discrim inatory reason for the adverse em ploym ent action. Patterson v. Cnty. of Oneida, 375 F.3d 20 6, 221 (2d Cir. 20 0 4). This showing m ust be supported by adm issible eviden ce that, if believed by the trier of fact, would support a finding that unlawful discrim ination was not the cause of the em ploym ent action. The em ployer’s burden of production also is n ot a dem anding on e; they need only offer a non-discrim inatory explanation for the em ploym ent decision. Bickerstaff v. Vassar Coll., 196 F.3d 435, 446 (2d Cir. 1999) (citation om itted). If the em ployer carries this burden, the burden shifts back to the plaintiff to dem onstrate that the legitim ate reasons offered by the em ployer were not its true reasons, but were a pretext for discrim ination. Patterson, 375 F.3d at 222 (citation om itted). Throughout this analysis, “[t]he ultim ate burden of persuading the trier of fact that the defendant intentionally discrim inated against the plaintiff rem ains at all tim es with the plaintiff.” Texas Dep’t of Com m . Affairs v. Burdine, 450 U.S. 248, 253, 10 1 S. Ct. 10 89, 67 L. Ed. 2d 20 7 (1981). 14 A. Plain tiff’s Prim a Facie Cas e It is undisputed that plaintiff has established the first two elem ents of a prim a facie claim : he is a m em ber of a protected class because he is a Black m an of Caribbean descent and he was qualified, based on his education, past perform ance, and experience, for his position as a teacher. Regarding the third elem ent, defendants argue that plaintiff was not subject to an adverse em ploym ent action until October 7, 20 0 8 when his work visa was revoked, resulting in the autom atic term ination of his em ploym ent. Defendants argue that because the work visa was autom atically revoked and “Principal Garcia or other adm inistrators at P.S. 65 did not have any input in or knowledge of the decision to revoke plaintiff’s visa,” Defs.’ Mem . at 5-6, there can be no inference of discrim inatory intent and plaintiff cannot m eet the fourth elem ent of a prim a facie case. Defendants’ argum ents are m eritless. An adverse em ploym ent action is one that results in a m aterially adverse change in the term s and conditions of em ploym ent, such as term ination, dem otion, wage reduction, loss of benefits, or significantly reduced m aterial responsibilities. Sanders v. N.Y.C. Hum an Res. Adm in., 361 F.3d 749, 755 (2d Cir. 20 0 4). Defendants subjected plaintiff to disciplinary action and suspended him from teaching on October 26, 20 0 7. Plaintiff’s suspension from teaching clearly qualifies as a m aterially adverse em ploym ent action. In support of the inference that his suspension was m otivated by anim us, plaintiff alleges specific inciden ts where Principal Garcia m ade discrim inatory com m ents and gestures toward him and treated him differently from White and Hispanic colleagues. Plaintiff argues that these discrim in atory acts lead to the inferen ce that his suspension was m otivated by his race, color, or national origin. The requirem ents for establishing a 15 prim a facie case are m inim al an d these specific allegations are sufficient to satisfy the standard. B. D e fe n d an ts H ave Articu late d a Le gitim ate N o n -D is crim in ato ry Re as o n fo r Su s p e n d in g Plain tiff Defendants have articulated legitim ate, non-discrim inatory reason for suspending plaintiff from teaching, supported by adm issible eviden ce. Defen dants claim disciplinary charges were brought and plaintiff was suspended because he “rendered incom petent and in efficient service, was insubordinate, engaged in m isconduct and neglected his duties . . . .” Andersen Decl. Ex. UU. In support, defendants subm it records docum enting plaintiff’s deficiencies as a teacher during the 20 0 6-20 0 7 school year. These included: regularly teaching lessons far below grade-level, Ex. NN, PP, RR, SS; preparing in adequate or no lesson plans, Ex. OO; failing to follow the regional pacing calendar or New York City Curriculum Planning Guide, Ex. RR, UU; refusing to attend m andatory teacher m eetings, Ex. UU, at 2; and failing to respond to constructive criticism , Ex. RR, SS. Defendants also provided detailed exam ples of plaintiff’s insubordination and unprofessional behavior towards Principal Garcia and AP J aggon during the 20 0 6-20 0 7 school year including, am ong other things, disrespectful com m ents and letters, refusal to follow instructions, and failure to subm it lesson plans when requested. See Andersen Decl. Ex. Z, CC, EE, FF, GG, & UU. C. Plain tiff H as Faile d to Sh o w th at D e fe n d an ts ’ Pro ffe re d Re as o n s are Pre te xtu a l Because Defendants have proffered a legitim ate reason for the em ploym ent action, any presum ption of discrim ination ends an d plaintiff bears the burden of showing defendants’ legitim ate reasons were a pretext for discrim in ation. In order to 16 m eet this burden, plaintiff has alleged a num ber of instances in which Principal Garcia treated him in a derogatory m anner or discrim inated between Black, Caribbean teachers and White or Hispanic teachers. See Pl.’s Mem . at 33. For the reasons set forth below, the Court finds plaintiff has failed to “produce evidence such that a rational finder of fact could conclude that the adverse action taken against [him ] was m ore likely than not a product of discrim inatory anim us.” Leibowitz v. Cornell Univ., 584 F.3d 487, 50 4 (2d Cir. 20 0 9). 1. Derogatory Com m ents & Gestures Plaintiff alleges that prior to his suspension he was subject to a num ber of derogatory gestures an d com m ents. These included: a com m ent by Principal Garcia in J une, 20 0 5 that she would be “a slave driver” the next school year; using her index finger to sum m on him , in a m anner he found insulting; putting her finger in her m outh as though vom iting when plaintiff was singing the national anthem off-key in early 20 0 6; walking out of a perform ance by plaintiff’s students on J une 14, 20 0 6; and using “derogatory term s” in her letters to his personnel file. Plaintiff also alleges that he was hum iliated at a staff developm ent day in Novem ber, 20 0 6 when he was asked to read the part of Tim othy in The Cay. The Court is not persuaded that a reasonable jury could find that these com m ents and gestures dem onstrate the defendants’ proffered reasons are a pretext for discrim ination. Principal Garcia’s “slave driver” com m ent was a stray rem ark m ade two years before plaintiff was suspen ded. Such stray rem arks are insufficient to show pretext. See Lee v. N. Y. State Dept. of Health, No. 99 Civ. 4859 (RMB) (HBP), 20 0 1 WL 340 31217, *19 (S.D.N.Y. Apr. 23, 20 0 1) (Rem arks by em ployer cannot establish pretext 17 when they are rem ote in tim e and unrelated to the challenged adverse em ploym ent decision). Although plaintiff alleged in his com plaint that Principal Garcia did not use her index finger to sum m on non-Black, non-Caribbean teachers, at deposition plaintiff conceded that he did not know if this was true because he never asked other teachers if she gestured to them in this way. Andersen Decl. Ex. B, at 178. As for gesturing while he was singing, plaintiff conceded that he was singing very loudly and off-key and that he assum ed this was the reason Principal Garcia m ade the gesture. Id. at 189. Plaintiff presents no eviden ce the gesture was related to his protected class. Sim ilarly, plaintiff presents no eviden ce Principal Garcia left the school perform ance for any discrim inatory reason. Plaintiff never asked her why she left and she watched the perform ance of Ms. Moham m ed’s class, another Black, Caribbean teacher. Ofodile Aff. Ex. 31, at 173-74. The only “derogatory term s” alleged by plaintiff are term s such as “loud, aggressive, threatening, scary” in letters Principal Garcia wrote to his personnel file. Ofodile Aff. Ex. 31, at 190 . There is no eviden ce these were coded or derogatory references to plaintiff’s race. Rather, they appear to be reports of the com plaints m ade by plaintiff’s fellow teachers. Finally, it is undisputed that Ilene Brodsky, a literacy coach, oversaw the training session and asked plaintiff to do the reading from The Cay, not Principal Garcia. Plaintiff provides no eviden ce to support his assertion that Principal Garcia “m ust have approved and condoned” the use of the book. Am . Com . ¶ 28. Both Principal Garcia and AP J aggon testified that the reading m aterial was decided on at the regional level; 18 Principal Garcia was uninvolved in the selection and was unaware what book would be used. See Andersen Decl. Ex. C, at 171-72; Ex. M, at 86. 2. Disparate treatm ent a. Novem ber, 20 0 4 Observation Plaintiff alleges that on a single occasion during a classroom observation, Principal Garcia positioned her chair so that she had her back to plaintiff, som ething he had n ever experienced before. Principal Garcia stated she sat this way because she wanted to see the students’ faces and observe the way they reacted to plaintiff’s teaching. Ofodile Aff. Ex. 31, at 60 . Other than plaintiff’s speculation, there is nothing in the record to in dicate Prin cipal Garcia inten ded her seating to be disrespectful or that she treated non-Black or non-Caribbean teachers differently: her explanation for her seating was reasonable; she gave plaintiff a positive review of his teaching; and during subsequent observations of plaintiff, she did not sit this way. See id. at 61-67. b. 20 0 4 Parent Com plaint Plaintiff alleges that Principal Garcia failed to follow protocol when she did not call him into her office to give him an opportunity to respond im m ediately to a parent com plaint. However, plaintiff did not produce an y written policy that required Principal Garcia to do so, nor did he establish an unwritten policy existed because he was unable to recall any occasion when Principal Garcia followed this purported protocol. See Ofodile Aff. Ex. 31, at 70 -72. c. Novem ber 20 0 5 Observation Plaintiff alleges that in Novem ber 20 0 5 Principal Garcia gave plaintiff four days’ notice of a classroom observation while two Hispanic teachers were given two weeks’ 19 notice. Plaintiff also alleged he was required to “adhere” to a ten page docum ent for an observation, but that the Hispanic teachers were not. However, plaintiff was unable to produce the docum ent or even recall what it required because he “didn’t bother to read all of it.” Ofodile Aff. Ex. 31, at 10 0 . It is undisputed that school policy required teachers to plan lessons at least five days in advance. Andersen Decl. Ex. C, at 136; Ex. D, at 10 6; see also Ex. K. Principal Garcia testified that because teachers are expected to be prepared in advance, she plans observations based on her schedule and does not always give advance notice. Id. at 137. Plaintiff presented no evidence that he was disadvantaged by four days’ notice or by his failure to follow the ten page docum ent. He testified that he had, in fact, planned his lessons a week in advance, Ofodile Aff. Ex. 31, at 10 1, and it is undisputed that plaintiff received a “satisfactory” rating from the observation. d. Internships Plaintiff alleges that Principal Garcia underm ined his ability to com plete an adm in istrative internship and assigned him less im portant duties than White or Hispanic interns. It is undisputed, however, that Principal Garcia recom m ended plaintiff for the internship, a n ecessary prerequisite to his participation, Andersen Decl. Ex. C, at 144; Ofodile Aff. Ex. 31, at 80 , and that plaintiff successfully com pleted the internship under the supervision of AP Mendez. Andersen Decl. at 161; Ofodile Aff. at 92. Plaintiff conceded at deposition that it was entirely appropriate for an assistant principal to m entor him . Ofodile Aff. Ex 31, at 97-98. Moreover, when asked why he thought Principal Garcia was reluctant to allow him to do the internship at first, plaintiff testified, “I think it m ight have all resulted 20 from m e having talked to m y colleagues about her turning her back on m e, telling m e she was going to be a slave driver, m y going to the union m eeting and sim ply asking a question and other things that m ight have transpired. . . . I m ention ed them to m y colleagues and it’s a sm all school and words get around.” Ofodile Aff. at 8 4. While relevant to plaintiff’s retaliation claim , none of these reasons are related to plaintiff’s race, color, or national origin. e. At-risk Student Assignm ents In 20 0 6, plaintiff requested assistance to help with low-perform ing students in his class. Prin cipal Garcia denied the request. Plaintiff alleges this denial was an act of discrim ination because a White teacher, J am es Caulfield (“Caulfield”), received a teaching assistant even though he had fewer low-perform ing studen ts in his class. Principal Garcia testified that a teacher receives an assistant under two circum stances: if the num ber of students in the class reaches 35-40 ; or if the Individualized Education Plans (“IEPs”) of individual students call for one. Andersen Decl. Ex. C, at 163-66. It is undisputed that neither circum stance applied to plaintiff. See Ofodile Aff. Ex. 5. f. Warnings and Letters to File Plaintiff alleged he was warned on J anuary 2, 20 0 7 regarding the Kaplan pacing calendar an d other non-Black, non-Caribbean teachers were not. Defendants have subm itted copies of letters, dated J anuary 2, 20 0 7, to all of the fifth grade teachers, instructing them to use the Kaplan pacing calendar. See Andersen Decl. Ex. X. g. Roll of Thunder Hear My Cry Plaintiff alleges he alone was required to use Roll of Thunder Hear My Cry, a book that repeatedly uses the racial epithet “nigger,” and that this was done to hum iliate 21 him . Prin cipal Garcia testified books were selected and purchased at the regional level and she had no role in deciding which books would be used by teachers. Andersen Decl. Ex. C, at 182. In his deposition plaintiff adm itted that it was the district that selected the book for use, not Principal Garcia, that he n ever m ade a com plaint about the book, and that he never asked other teachers if they were required to use the book. Ofodile Aff. Ex. 31, at 179, 180 -81. Plaintiff also testified that he did not use another assigned book, Sounder, after he was warned by another fifth grade teacher, Sam nath Narine that it also contained racial epithets and “wasn’t the book for us to read,” dem onstrating plaintiff exercised discretion in the use of assigned books. See Ofodile Aff. Ex. 31, at 18 2-8 3. h. Lunchroom Segregation Plaintiff alleges that during the 20 0 6-20 0 7 school year Principal Garcia created a segregated lunchroom by scheduling plaintiff and the only other Black, Caribbean teacher, Ms. Moham m ed, to a separate lunch period from their two fifth grade colleagues, who were not Black. 7 Principal Garcia testified that she scheduled classes for lunch based on the lunch room ’s m axim um capacity and the num ber of students in other grades. Andersen Ex. C, at 18 4-85. AP J aggon testified that the fifth grade, com prised of four classes, was divided in half: two fifth grade classes lunched with the third grade an d two lunched with the fourth grade. Andersen Decl. Ex. M, at 8 3. 7 The Court notes that one of the fifth grade colleagues from whom plaintiff was separated, Mr. Narin e, was by plaintiff’s own description , “a dark-skin ned Guyanese/ Indian .” Am . Com pl. ¶ 31. Here, to create an inference of discrim ination, plaintiff places Mr. Narine in the sam e category as White or Hispanic teachers. At other tim es when it supports his claim s, plaintiff identifies Mr. Narine as a teacher of color. See, e.g., Id. (arguin g Mr. Narine’s exclusion from the staff luncheon was evidence “all of the dark-skinned teachers in the fifth grade were excluded”). These self-serving variations underm ine plaintiff’s claim s. 22 Therefore, plaintiff an d Ms. Moham m ed would have been assigned to lunch with White or Hispanic teachers from a lower grade and were not segregated. Plaintiff was unable to rebut this testim ony: at his deposition, plaintiff could not recall whether other classes were assigned to the sam e lunch period as he and Ms. Moham m ed. See Ofodile Aff. Ex. 31, at 18 6-87. i. Staff Luncheon Plaintiff alleges Principal Garcia discrim inated by excluding fifth grade teachers of color from a staff luncheon in Decem ber 20 0 6. No rational trier of fact could find this incident was anything other than an adm in istrative oversight. AP J aggon testified that the school secretary put a flier in every teacher’s m ailbox, announcin g the lunch. Andersen Decl. Ex. M, at 83. AP J aggon also included the lunch ann ouncem ent in a weekly bulletin she prepared and delivered by hand to each teacher, including plaintiff. Andersen Decl. Ex. M, at 84-85. Plaintiff testified that all other teachers in the school attended, Ofodile Aff. Ex. 31, at 111, which would have included teachers of color. Plaintiff also testified that he was invited to and attended other staff luncheons prior to this incident an d after this incident. Id. j. Treatm ent of Other Teachers As evidence of pretext, plaintiff also points to the disparate treatm ent of other m em bers of staff. Plaintiff alleges Principal Garcia caused eight Black or Caribbean teachers to be rem oved or leave between 20 0 3 and 20 0 7. 8 However, plaintiff’s 8 These teachers were: (1) Ms. Bell Farm er, an Assistant Principal identified as Black and Panam anian; (2) Ms. Lacey, an Assistant Principal of color; (3) Ms. Ferron, a Guidance Counselor, identified as of color and J am aican; (4) Ms. Roy, a Guidance Counselor identified as J am aican; (5) Ms. Khan, a teacher identified as Indian and Guyan ese; (6) Ms. Marerro, identified as Indian and Trinidadian; (7) Ms. Moham m ed, identified as Black and Caribbean; and (8) plaintiff. Ofodile Aff. Ex. 31 at 190 -95; Andersen Decl. Ex. RRR, at 139. 23 allegations are underm ined by a partially hand-written staffing chart he subm itted. See Ofodile Ex. 28. As far as the Court can discern, plaintiff shows 25 White or Hispanic teachers also were rem oved or left during the sam e period. Plaintiff’s allegations are also underm ined by Principal Garcia’s hiring and prom otion of AP J aggon, who was Black and Caribbean, Assistant Principal Leatrice J ohnson, who was Black, see Andersen Decl. Ex. C, at 82; Declaration of Robert Parlato dated J uly 19, 20 10 (“Parlato Decl.”) at 2, and two Black substitute teachers. See Parlato Decl. at 2; Pl.’s Mem . at 32 n.3. Plaintiff also subm itted as eviden ce OEO com plaints against Principal Garcia from Ms. Moham m ed, who was Black an d Caribbean, and Asher Marrero, who was Indian and Caribbean. See id. Ex 29, 30 , & 31, at 194. These unsworn statem ents are inadm issible in opposition to a sum m ary judgm ent m otion and Ms. Marrero’s com plaint does not support plaintiff’s claim , consisting, as it does, of a single page that fails to specify the nature of her com plaint. Although the Court m ay take judicial notice of the fact Ms. Moham m ed m ade a com plaint of racial discrim ination, this fact alone is not sufficient to dem onstrate that defendants’ reasons for suspending plaintiff from teaching are pretextual. Having reviewed the evidence in the light m ost favorable to the plaintiff, the Court finds that defendants have successfully rebutted plaintiff’s prim a facie case and provided legitim ate, non-discrim inatory reasons for plaintiff’s suspension. Plaintiff has failed to present evidence that his suspension was m otivated by his race, color, or national origin. Because there is no genuin e issue for trial, sum m ary judgm ent m ust be 24 granted to all defendants on plaintiff’s Title VII, § 1981, and NYSHRL discrim in ation claim s. IV. Pla in tiff’s D is crim in atio n Claim Pu rs u an t to N YCH RL NYCHRL claim s m ust be considered separately from federal and state law discrim ination claim s. Vargas v. Morgan Stanley, 438 F. App’x 7, 10 (2d Cir. 20 11). Previously, courts interpreted the NYCHRL as coexten sive with Title VII and the NYSHRL. The New York City Council rejected such equivalents by passing the Local Civil Rights Restoration Act of 20 0 5. Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268 , 277– 79 (2d Cir. 20 0 9) (explaining the 20 0 5 Act “abolish[ed] ‘parallelism ’ between the [NYCHRL] and federal and state anti-discrim ination law”). To state a discrim ination claim under NYCHRL, plaintiff need not show that an em ploym ent action was m aterially adverse; any m anner of discrim ination is prohibited. See Margherita v. FedEx Exp., No. 0 7 Civ. 48 26 (NG) (RER), 20 11 WL 50 24577, at *8 (E.D.N.Y. Oct, 20 , 20 11). Nevertheless, a plaintiff m ust still link the adverse em ploym ent action to a discrim inatory m otivation and where a plaintiff fails to do so, his claim s fail. Id. For the reasons discussed above, plaintiff has failed to m ake such a link and plaintiff’s NYCHRL claim m ust also be dism issed. V. H o s tile W o rk En viro n m e n t A. Le gal Stan d ard fo r a H o s tile W o rk En viro n m e n t Claim u n d e r Title VII, § 19 8 1 an d N YSH RL To survive a sum m ary judgm ent m otion on a hostile work environm ent claim , “[p]laintiff m ust introduce evidence showing that his workplace was perm eated with discrim inatory intim idation, ridicule, and insult, which was sufficiently severe or 25 pervasive to alter the conditions of the victim ’s em ploym ent and create an abusive work environm ent.” Davis-Bell v. Colum bia Univ., No. 10 Civ. 4362 (CM), 20 12 WL 94668 0 , at *14 (S.D.N.Y. Mar. 19, 20 12) (em phasis in original) (quotation and citations om itted). Hostile work environm ent claim s under Title VII, § 1981, and NYSHRL are all analyzed using the sam e standard. See Citroner v. Progressive Cas. Ins. Co., 20 8 F. Supp. 2d 328, 339 (E.D.N.Y. 20 0 2) (citations om itted). In order to prove that a workplace is “hostile,” a plaintiff m ust dem onstrate that: “(1) he subjectively perceive[d] the environm ent to be abusive; (2) the conduct alleged objectively created an environm ent that a reasonable person would find hostile or abusive; and (3) that the work environm ent was abusive to em ployees because of their race, gender, religion, or national origin.” Cunningham v. N.Y.S. Dep’t of Labor, 326 F. App’x 617, 620 (2d Cir. 20 0 9) (quotation and citation om itted). A work environm ent’s hostility is assessed based on the totality of the circum stances. Harris, 510 U.S. at 23. B. Le gal Stan d ard fo r a H o s tile W o rk En viro n m e n t Claim U n d e r th e N YCH RL For the reasons discussed above, NYCHRL claim s m ust be considered separately and have a m ore liberal pleading standard. A NYCHRL hostile work environm ent claim need not m eet the “severe or pervasive” threshold to be actionable. William s v. N. Y. City Hous. Auth., 61 A.D.3d 62, 75-80 , 8 72 N.Y.S.2d 27 (1st Dep’t 200 9). Instead, the relevant consideration is whether there is a triable issue of fact as to whether the plaintiff “has been treated less well than other em ployees,” because of his race or national origin. Id. at 78. 26 C. Plain tiff’s H o s tile W o rk En viro n m e n t Claim Fails Plaintiff’s claim s fail because he has not shown he suffered any m istreatm ent because of his race or national origin, a necessary elem ent under both standards. Plaintiff’s hostile work environm ent claim s are prem ised on the sam e allegations as his discrim ination claim s. For the reasons discussed previously, defendants have presented legitim ate reasons for each act of alleged discrim ination. Plaintiff has failed to present any evidence that would perm it a rational jury to find these legitim ate reasons were a pretext for discrim ination based on plaintiff’s race, color, or national origin. Moreover— even if true—the disparaging com m ents and gestures allegedly m ade by Principal Garcia and others were neither severe nor pervasive enough to constitute a hostile work environm ent. “For ‘racist com m ents, slurs, and jokes’ to be actionable as a hostile work environm ent, there generally ‘m ust be m ore than a few isolated incidents of racial enm ity.’” Davis-Bell, 20 12 WL 946680 , at *19 (quoting Schwapp v. Town of Avon, 118 F.3d 10 6, 110 (2d Cir. 1997)). The NYCHRL, like Title VII and the NYSHRL, is not a “‘general civility code,”’ and “petty slights and trivial inconveniences” are not actionable. Cam pbell v. Cellco P’ship, 10 Civ. 9168 (SAS), 20 12 WL 40 0 959, *8 (S.D.N.Y. Feb. 7, 20 12) (quoting William s, 8 72 N.Y.S.2d at 38, 40 ). VI. Re taliatio n Plaintiff has also alleged that defendants retaliated against him in violation of Title VII, § 1981, the NYSHRL, and NYCHRL after plaintiff com plained of discrim ination and a hostile work environm ent. 9 The Court’s grant of sum m ary 9 Retaliation claim s under Title VII, § 1981, and the NYSHRL are governed by the sam e standards. See Carm ody v. Vill. of Rockville Ctr., 661 F. Supp. 2d 299, 324 (E.D.N.Y. 20 0 9) (citations om itted). The 27 judgm ent on plaintiff’s discrim in ation claim is not dispositive of plaintiff’s retaliation claim . “It is well-established that a ‘plaintiff m ay prevail on a claim for retaliation even when the underlying conduct com plained of was not in fact unlawful so long as he can establish that he possessed a good faith, reasonable belief that the underlying challenged actions of the em ployer violated [the] law.’” La Grande v. De Crescente Dist. Co., Inc., 370 F. App’x 20 6, 212 (2d Cir. 20 10 ) (quoting Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.20 0 2)). Although plaintiff has not carried his burden of proof on his discrim ination claim s at sum m ary judgm ent, defendants present no eviden ce that his OEO or EEOC com plaints were m ade in bad faith. Retaliation claim s, like discrim ination claim s, are subject to the McDonnell Douglas burden-shifting analysis. To m ake out a prim a facie case of retaliation, a plaintiff m ust show: “(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse em ploym ent action; and (4) a causal connection between the protected activity and the adverse em ploym ent action.” J ute v. Ham ilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 20 0 5) (quotation om itted). Plaintiff has sufficiently dem onstrated the first three elem ents of a prim a facie case: OEO and EEOC com plaints are protected activity, see Russel v. Cnty. Of Nassau, 696 F. Supp. 2d 213, 236-37 (E.D.N.Y. 20 10 ) (discussing activities that qualify as “protected activity”); it is undisputed that defendants knew of plaintiff’s com plaints; and plaintiff’s suspension was an adverse em ploym ent action. Plaintiff has also sufficiently shown a causal connection between his com plaints and his suspension. Am ong other things, causation m ay be proved “indirectly, by showing that the protected activity was NYCHRL is broader than Title VII in som e respects but because sum m ary judgm ent is denied under the m ore strin gent Title VII standard, it is unnecessary to independently review plaintiff’s NYCH RL claim . 28 followed closely by discrim in atory treatm ent, or through other circum stantial eviden ce . . . .” Raniola v. Bratton, 243 F.3d 610 , 625 (2d Cir. 20 0 1) (quotation om itted). Here, plaintiff filed com plaints with the OEO and EEOC on Decem ber 27, 20 0 6 and February 7, 20 0 7, respectively. Prior to those com plaints, plain tiff received uniform ly satisfactory teaching observation reviews and positive annual perform ance reviews at P.S. 65 and at the schools where he previously worked. See Ofodile Aff. Ex. 31, at 34-37, 39-41, 48. Following his com plaints, plaintiff received what can only be considered a barrage of negative perform ance reviews and disciplinary letters to his personnel file: between J anuary 20 0 7 and his suspension on J une 27, 20 0 7, plaintiff received m ore than twenty negative perform ance evaluations and disciplinary letters, som etim es as m any as two per day. See infra note 3. Am ong other things, plaintiff received the first “unsatisfactory” review of his teaching only two weeks after filing his EEOC com plaint. The closeness in tim e between plaintiff’s protected activities and the initiation of negative reviews and letters that form ed the basis for disciplinary action is suggestive of retaliatory m otive and sufficient to m eet the de m inim is threshold for a prim a facie case. See, e.g., Cayem ittes v. City of New York Dep’t of Hous. Pres. and Dev., No. 10 Civ. 8 486 (GBD) (THK), 20 12 WL 40 6915, at*4-5 (S.D.N.Y. 20 12) (retaliation inferred where one m onth after protected activity, em ployer began filing negative docum ents to support dem otion two m onths later); Fowler v. N.Y. Transit Auth., No. 96 Civ. 6796 (J GK), 20 0 1 WL 8 3228, *7 (S.D.N.Y. J an. 31, 20 0 1) (retaliation strongly inferred where the day after plaintiff com plained of discrim ination, em ployer initiated a series of m inor actions which in the aggregate constituted an adverse em ploym ent action”); see also Flood v. UBS Global Asset Mgm t., Inc., No. 10 Civ. 374 (RJ H), 20 12 29 WL 28 8 0 41, at *17 (S.D.N.Y. Feb. 1, 20 12) (collecting cases and nothing although there is no “bright line” rule, courts in this Circuit generally consider a delay between the plaintiff's protected action and the em ployer's adverse em ploym ent action of six weeks or less to perm it an inference of retaliation and a delay of two m onths or m ore to counsel against one). Defendants’ proffered legitim ate justification is the sam e as that given for plaintiff’s discrim ination claim : disciplinary charges were brought and plaintiff was suspended because he “rendered in com peten t and inefficient service, was insubordinate, engaged in m isconduct and neglected his duties . . . .” Andersen Decl. Ex. UU. Defendants argue that “discussions and letters concerning plaintiff’s unsatisfactory perform ance began well in advance of his first discrim ination com plaint filed on Decem ber 27, 20 0 6.” Defs.’ Reply at 7. Defendants also contend that “negative assessm ents of plaintiff’s perform ance that occurred after he com plained of discrim ination were in fact consistent with previously expressed concerns about his teaching,” negating any inference of retaliation. Defs.’ Mem . at 15. In support of this argum ent, defendants cite to Slattery v. Swiss Reinsurance Am . Corp., 248 F.3d 8 7 (2d Cir. 20 0 1). There, the court affirm ed dism issal of a retaliation claim where the plaintiff had been subjected to “an exten sive period of progressive discipline” prior to his protected activity, including dim inished job responsibilities five m onths prior. The court concluded that “[w]here tim ing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Id. at 95. 30 Contrary to defendants’ argum ents, plaintiff was not subject to a com parable “extensive period of progressive discipline.” Prior to his com plaints, plaintiff had received two warnings in three years of teaching: one March 1, 20 0 6 regarding a single inadequate lesson plan and one October 24, 20 0 6 regarding a single instance of leaving students unsupervised. See Andersen Decl. Ex. L & W. He had also received som e constructive criticism regarding his m ath teaching from the Math Coach, J aggon. See id. Ex. M & O. After his first com plaint both the quantity and tenor of warnings an d disciplinary letters changed significantly. Plaintiff was reprim anded for repeatedly teaching below grade level, failing to follow the regional pacing calendar an d the assigned curriculum , refusing to respond to directives, was required to subm it all of his lesson plans in advance each week for review, and was frequently warned he was in danger of being ranked “unsatisfactory.” These accusations were considerably m ore critical and serious than the prior isolated incidents. Prior to plaintiff’s com plaint, in February 20 0 5, Principal Garcia wrote a glowing recom m en dation for plaintiff, praising him as “open and congen ial,” “a bright, com petent and caring teacher” who “sets a positive tone which m akes learning enjoyable to his students.” She wrote he, “openly accepts constructive feedback and is a joy to supervise.” Ofodile Aff. Ex. 3; see also Ex. 33, at 19 (testim ony of Principal Garcia affirm ing the truth of her recom m endation). Following his com plaint, plaintiff was repeatedly warned for failing to respond to constructive criticism , for insubordination, failure to follow instructions, and unprofessional and harassing behavior. Prior to plaintiff’s com plaint during the 20 0 4-20 0 5 school year, Principal Garcia ranked plaintiff “satisfactory” or “up to standards” in every category, providing positive 31 feedback and advice. See Andersen Decl. Ex E, F, & G. In 20 0 5-20 0 6, AP Mendez’s reviews were sim ilarly positive. See id. Ex. H, I, & J . And in the first half of the 20 0 620 0 7 school year, AP Mendez and AP J aggon’s observations were satisfactory, providing m inim al recom m endations for im provem ent. See Ex. Q & R. Principal Garcia signed and approved both observations. But after plaintiff’s com plaints, Principal Garcia personally conducted a third observation on March 23, 20 0 7, findin g plaintiff unsatisfactory in m ultiple respects and exten sively criticizing his teaching. See Andersen Ex. S. At his 20 0 7 annual review, plaintiff was found “unsatisfactory” in every category other than personal appearance and the cleanliness of his classroom . Id. Ex. TT. Although plaintiff m issed only 5 days of school—less than the prior year and the sam e num ber as in his first year of teaching—his attendance was now ranked “unsatisfactory.” Ex. TT. Finally, in Decem ber 20 0 6, plaintiff and his union representative reviewed his personnel file and requested copies of a num ber of docum ents. Ofodile Aff. Ex. 31, at 10 6. When he received the copies, a letter of recom m en dation and other docum ents related to plaintiff’s internship were m issing and Principal Garcia told his union representative she had shredded them . See Ofodile Aff. Ex. 8 ; Ex. 31, at 10 7-0 8. Principal Garcia testified that plaintiff’s letter of recom m endation did not belong in his personnel file. Andersen Decl. Ex. C, at 189. Regardless of whether it belonged in his official file, the Court can think of no legitim ate reason Principal Garcia would destroy a docum ent, knowing plaintiff had requested a copy. A jury m ight reasonably infer that she either wished to conceal her prior positive recom m endation of plaintiff’s teaching 32 or, as plaintiff alleges, that she wished to underm ine plaintiff’s ability to pursue an adm in istrative position. Plaintiff has presented sufficient evidence to raise a m aterial issue of fact: whether, as plaintiff alleges, trivial oversights were excessively punished and disciplinary incidents fabricated in order to retaliate again st him for his com plaints, or, as defendants contend, plaintiff becam e increasingly erratic, insubordinate, and unsatisfactory in his teaching, n ecessitating his suspension. In light of the foregoing, sum m ary judgm ent is not appropriate on plaintiff’s Title VII, § 1981, NYSHRL, and NYCHRL retaliation claim s. VII. Pla in tiff’s Re m ain in g Claim s Again s t th e City o f N e w Yo rk Mu s t be D is m is s e d Defendants m ove to dism iss NYC as a defendant because NYC and DOE are distinct legal entities and NYC cannot be held liable for the actions of the DOE or its em ployees. The DOE is “for all purposes, the governm ent or public em ployer of all persons appointed or assigned by the city board or the com m unity districts.” N.Y. Educ. Law. § 2590 – g(2) (McKinney 20 0 3). It is well-established that as a result of Education Law § 2590 – g(2), the Board and the City are considered “separate and distinct entities.” Cam pbell v. City of New York, 611 N.Y.S.2d 248, 249 (2d Dep’t 1994) (citation om itted); see also Marrero v. City of New York, No. 0 2 Civ. 6634 (DLC), 20 0 4 WL 444548, at *2 (S.D.N.Y. Mar. 10 , 20 0 4) (collecting cases). NYC, therefore, is not liable for torts com m itted by the DOE. Accordingly, plaintiff’s rem aining claim s against NYC are dism issed with prejudice. 33 VIII. Pla in tiff’s Re m ain in g Title VII Claim s Again s t th e In d ivid u al D e fe n d an ts Mu s t be D is m is s e d Plaintiff seeks to hold Principal Garcia and Superintendent Rodriguez-Torres individually liable for discrim ination, a hostile work environm ent, and retaliation under Title VII. It is well-settled that there is no individual liability under Title VII. Lore v. City of Syracuse, 670 F.3d 127, 20 12 (2d Cir. 20 12) (“Title VII does not im pose liability on individuals.”) (citations om itted). Therefore, plaintiff’s Title VII claim s against Principal Garcia and Superintendent Rodriguez-Torres m ust be dism issed with prejudice. IX. Pla in tiff’s § 19 8 1 Claim Again s t D OE is D is m is s e d W ith Pre ju d ice Defendants argue plaintiff’s § 1981 claim s against the DOE m ust be dism issed because plaintiff has n ot pleaded or proved that his constitutional rights were violated as the result of an official policy, custom , or practice of the m unicipal defendant. Defs.’ Mem . at 27. Instead, plaintiff seeks to hold DOE accountable “under the com m on law principal agent / respondeat superior rule.” Am . Com pl. ¶ 11. In m aking this argum ent, defendants apparently assum e that plaintiff m ay bring a § 198 1 claim against the DOE. In fact, it is well-established in the Second Circuit that § 198 1 claim s cannot be brought against m unicipalities or m unicipal agencies. See J ett v. Dallas Indep. Sch. Dist., 491 U.S. 70 1, 10 9 S. Ct. 270 2, 10 5 L. Ed. 2d 598 (1989). “Section 1981 does not and cannot, within constitutional bounds, im pose vicarious liability on m unicipalities; as such, Section 1981 liability against such entities can be asserted only pursuant to 42 U.S.C. § 1983 (“Section 1983”), and even then only in accordance with the well-established requirem ents prom ulgated in Monell v. N.Y.C. 34 Dep’t of Soc. Services, 436 U.S. 658, 694, 98 S. Ct. 20 18, 56 L. Ed. 2d 611 (1978).” Payne v. N.Y. City Police Dep’t, No. 0 8 Civ. o3993 (RMM) (RLM), 20 12 WL 10 39455, at *16 (E.D.N.Y. Mar. 28, 20 12) (citations om itted); see also Philippeaux v. N. Central Bronx Hosp., 8 71 F. Supp. 640 , 654-56 (S.D.N.Y. 1994) (discussing J ett and its continuing validity after the Civil Rights Act of 1991). Plaintiff’s Am ended Com plaint asserts the elem ents of a § 1981 claim and fails to assert an express cause of action under § 1983 or plead the relevant elem ents under Monell. For the reasons set forth above, his § 1981 claim against DOE m ust be dism issed with prejudice. X. Prin cip al Garcia is N o t En title d to Qu alifie d Im m u n ity Defendants argue that Principal Garcia is entitled to qualified im m unity under § 198 1. See Defs.’ Mem . at 29. Governm ent officers are entitled to qualified im m unity if their “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 8 0 0 , 8 18 , 10 2 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). On the other hand, as described by J udge Learned Hand, “It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal m otive not connected with the public good, should not escape liability for the injuries he m ay so cause . . . .” Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949). “The com prom ise between rem edy and im m unity . . . turns critically upon notice. Public officials sued in their individual capacity are entitled to qualified im m unity from suit unless the contours of the right are sufficiently clear that a reasonable official would understand that what 35 he is doing violates that right.” Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 10 7, 129 (2d Cir. 20 0 4). When m aking this determ ination, the Court considers two questions: first, whether, construing the facts in favor of the n on-m oving party, there is a violation of a constitutionally protected right; an d second, whether, considering the facts of the case before it, that right was clearly established at the tim e of the incident. See Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 8 0 8, 8 13, 815– 16 (20 0 9) (setting forth qualified im m unity test and holding that a court need not consider the questions in that order). To evaluate whether a right is clearly established, the Court m ust determ ine whether it would be clear to a reasonable prin cipal that her conduct in these circum stances was unlawful. See Saucier v. Katz, 533 U.S. 194, 20 2, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (20 0 1). There can be no doubt that it was well-established prior to 20 0 7 that suspending an em ployee in response to a good-faith com plaint of discrim ination is unlawful and “it can never be objectively reasonable for a governm ental official to act with the intent that is prohibited by law.” Back, 365 F.3d at 128-30 . For the reasons set forth above, a reasonable jury could find that defen dants suspended Phillip in retaliation for his OEO and EEOC com plaints. Therefore qualified im m unity does not shield the alleged actions of Principal Garcia an d sum m ary judgm ent on this basis is den ied. XI. Fa ilu re to Se rve Su p e rin te n d e n t Ro d rigu e z-To rre s In their m em orandum of law, defendants request the Court dism iss sua sponte all claim s against Superin tendent Rodriguez-Torres for failure of service pursuant to Federal Rule of Civil Procedure Rule 4(m ). A review of the record in this case indicates 36 that Superintendent Rodriguez-Torres never responded to the Com plaint or Am ended Com plaint, although she has been deposed. Before dism issing an action sua sponte for failure to tim ely serve a defendant, the Court m ust provide notice to the plaintiff, Nagy v. Dwyer, 50 7 F.3d 161, 164 (2d Cir. 20 0 7), and plaintiff bears the burden of proving service was valid and tim ely, Moultry v. City of Poughkeepsie, 154 F. Supp. 2d 8 0 9, 8 12 (S.D.N.Y. 20 0 1). Plaintiff is therefore ordered to show cause why all claim s against Superintendent Rodriguez-Torres should not be dism issed. CON CLU SION For the foregoing reasons, defendants’ m otion for sum m ary judgm ent is granted as to plaintiff’s discrim ination an d hostile workplace claim s against all defendants. As to plaintiff’s rem aining retaliation claim s: (1) all retaliation claim s against NYC are dism issed with prejudice; (2) plaintiff’s Title VII retaliation claim against Principal Garcia and Superintendent Rodriguez-Torres is dism issed with prejudice; (3) plaintiff’s § 198 1 Claim against DOE is dism issed with prejudice; and (4) plaintiff is ordered to show cause on or before May 3, 20 12 why all claim s against Superintendent RodriguezTorres should not be dism issed. SO ORD ERED . Dated: Brooklyn, New York April 19, 20 12 _ _ / s/ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I. Leo Glasser United States District J udge 37
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