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
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.
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.
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.
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 ...