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March 9, 1999


The opinion of the court was delivered by: Leisure, District Judge.


This case concerns allegations that a principal at Lincoln Academy, a local middle school, has systematically forced out the school's black male teachers. Plaintiff, one of those teachers, brings this action against the principal and the City of New York Board of Education (the "Board"), alleging the principal discriminated against him on the basis of his race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendants move for summary judgment in their favor. For the reasons stated in this Opinion, defendants' motion is GRANTED in part and DENIED in part.

I. Standard for Summary Judgment

A moving party is entitled to summary judgment if the Court determines no genuine issue of material fact exists to be tried and the party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; see also Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996), cert. denied, 520 U.S. 1228, 117 S.Ct. 1819, 137 L.Ed.2d 1027 (1997); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of showing no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citation omitted); see also Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1231 (2d Cir. 1996).

The Court's function in adjudicating summary judgment motions is not to try issues of fact, but instead to determine whether there are such issues. See Sutera v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir. 1995). In determining whether genuine issues of material fact exist, the Court must resolve all ambiguities and draw all justifiable inferences in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Holt, 95 F.3d at 129.

Because this case involves allegations of discrimination, an additional consideration applies. The Court "must be cautious about granting summary judgment to an employer when, as here, its intent is at issue." Gallo v. Prudential Residential Serv. Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994) (citations omitted); see also Maresco v. Evans Chemetics, 964 F.2d 106, 113 (2d Cir. 1992).

Applying these principles, the facts of the instant case are as set forth below.

II. Facts of the Case

Lincoln Academy ("Lincoln") is a middle school located on the upper west side of Manhattan. The school is one of a few small, semi-autonomous "alternative" public schools in the city formed to provide a specialized curriculum focused on a particular subject. The subject of focus at Lincoln is science. Like other "alternative" public schools in the city, Lincoln's attendees are selected through a formal application process.

During the relevant school term, 1992-93, the racial composition of Lincoln's student body was approximately 60% black and 40% hispanic. The racial makeup of the school's faculty was quite different. Of the fifteen teachers, twelve were white and the remainder — consisting of plaintiff, a male, Pamela Profit, a female, and Roy Yarbrough, a male — were black.

In 1993, Rosen dismissed both of the black male teachers at Lincoln. The first to go was Yarbrough, a seasoned teacher and university lecturer who Rosen had hired. See id. 1; Affidavit of Cheryl Rosen, dated July 15, 1998 [hereinafter "Rosen Reply Aff."], ¶ 3. By notice dated January 11, 1993, Rosen terminated Yarbrough without explanation. See Yarbrough Aff. ¶¶ 5, 8, 15; see also Declaration of Joan Franklin Mosley, Esq., dated June 21, 1998 [hereinafter "Mosley Decl."], Ex. 8. Yarbrough had not received any criticisms of his teaching, he had been rated satisfactory in his most recent in-class evaluation and was allegedly liked by students. See Yarbrough Aff. ¶¶ 5, 8, 12, 15; Mosley Decl., Ex. 5. Many students and parents were upset by the termination and protested unsuccessfully for his reinstatement. See Mosley Decl., Ex. 5. Yarbrough believes he was terminated by Rosen because he is a black male. See id. ¶ 18. Rosen replaced Yarbrough with Kaye Kerr, a black female. See Affidavit of Brian Copeland, dated June 15, 1998 [hereinafter "Copeland Aff."], ¶ 3.

The axe fell next on plaintiff. By letter dated July 20, 1993, Rosen informed plaintiff that he had been terminated effective as of the previous month. See Mosley Decl., Ex. 7. During the school term prior to his termination, it is alleged that Rosen held plaintiff to a different standard of performance than white teachers and made false accusations against him. For example, Rosen chastised plaintiff on the few occasions he turned in his attendance sheets in the afternoon; many white faculty members routinely followed that same course and were not reprimanded. See Copeland Aff. ¶¶ 6, 21; Affidavit of Eric Mahoney, dated June 15, 1998 [hereinafter "Mahoney Aff."], ¶ 4. Rosen further accused plaintiff of having an untidy classroom, even though his room was neat and clean. See Copeland Aff. ¶ 6; Mahoney Aff. ¶ 5; Yarbrough Aff. ¶ 9. White teachers with cluttered and dirty classrooms were not criticized. See Copeland Aff. ¶ 6. In addition, plaintiff was wrongly accused of not displaying student work and other items of interest. See id. ¶ 19. In contrast, white teachers, such as Eric Mahoney, did not always display student work and yet were not reprimanded in regard thereto. See Mahoney Aff. ¶ 5. Plaintiff was also observed more frequently than other teachers and Rosen requested to review his lesson plans at a similarly disparate rate. See Copeland Aff. ¶¶ 6, 13, 17, 19, 22, 28-29.

Three final suspect incidents preceded plaintiff's termination. In February 1993, Rosen threatened to fire plaintiff for participating in an off-campus meeting with students and parents concerned about the termination of Yarbrough, even though apparently no prohibition against such meetings exist. See Copeland Aff. ¶ 25; Rosen Aff., Ex. I. The next month, Rosen accused plaintiff of keeping a toy gun and razor blade in a desk drawer in one of the school rooms. See Copeland Aff. ¶ 27. Rosen made the accusation without first asking plaintiff whether the items were his and without inquiring of a white female teacher who used the classroom as to whether the objects were hers. See id. ¶¶ 6, 12, 27. Plaintiff denies having placed either item in the drawer. See id.

Finally, at the end of the 1992-93 school term, Rosen gave plaintiff an "unsatisfactory" rating. This rating was given despite the fact that plaintiff's students had the highest standardized test scores in the school for math and despite plaintiff's alleged outstanding rapport with students and successful supervision of various extra-curricular student activities, such as the school yearbook and the boys' and girls' basketball teams. See Copeland Aff. ¶¶ 2, 4, 9; Mosley Decl., Ex. 9.

Following negotiations occurring through plaintiff's union representative, plaintiff's performance rating was changed to "satisfactory" and, in lieu of termination, plaintiff was permitted to request a transfer to another school. See Copeland Aff. ¶¶ 31-32.

In succeeding years, Rosen has terminated only one other teacher, Gerald Sterlin, also a black male. Rosen, who hired Sterlin, has asserted that he was discharged because of his unsatisfactory performance. See id. ¶ 8; Rosen Aff. ¶ 39; Rosen Reply Aff. ¶¶ 3-5.

On August 20, 1996, following his unsuccessful pursuit of remedies before the United States Equal Employment Opportunity Commission and the New York State Division of Human Rights, plaintiff filed the instant case pro se, alleging race and sex discrimination in violation of Title VII. By Order dated May 16, 1997, Magistrate Judge Katz, the magistrate assigned to this case for general pre-trial case management, directed that pro bono counsel be sought to represent plaintiff. Joan Franklin & Associates, by Joan Franklin Mosley, Esq., subsequently made an appearance and continues to represent plaintiff in this action.

III. Discussion

Defendants contend plaintiff has failed to establish a genuine issue of material fact that plaintiff was discriminated against on the basis of his race and/or sex in violation of Title VII. Before addressing that contention, the Court pauses to decide a lingering issue as to the capacities in which defendant Rosen may be sued under that statute.

A. Claims Against Rosen in Her Personal Capacity

Plaintiff asserts his Title VII claim applies to Rosen in both her individual and official capacities. Plaintiff is wrong; the United States Court of Appeals for the Second Circuit has held that Title VII "limit[s] liability to employer-entities". Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995); see also Pell v. Trustees of Columbia Univ. in the City of New York, No. 97 Civ. 0193, 1998 WL 19989, at *9 (S.D.N.Y. Jan.21, 1998). Thus, individual employees may not be held personally liable under Title VII, even if they are supervisory personnel with the power to hire and fire other employees. See Tomka, 66 F.3d at 1314-15. Accordingly, a Title VII claim against an individual employee is treated as one for vicarious ...

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