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Simon v. N.Y.C. Board of Education

May 2, 2006


The opinion of the court was delivered by: Trager, J


Plaintiff Jay Simon ("plaintiff"), acting pro se, brings this action against his former employer, New York City Board of Education ("BOE" or "defendant"), pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"). Plaintiff alleges he suffered discrimination based on his gender, male, and retaliation for engaging in a protected activity. Defendant moves for summary judgment pursuant to Fed. R. Civ. P. 56(c) on both claims.


Plaintiff Jay Simon was a school aide employed on and off by defendant at various New York City public schools since January 1989. See (Def.'s Mot. Summ. J. Ex. A, Deposition of Jay Simon, conducted May 15, 2002 ("Pl. May 15 Dep.") at 16).

In September 1999, plaintiff was transferred to P.S. 16. Plaintiff began at P.S. 16 as a supervisory school aide, supervising 17 female school aides. (Pl. May 15 Dep. at 15, 45-46.) At P.S. 16, plaintiff initially reported to Principal Audrey Murphy ("Principal Murphy") and Assistant Principal Elizabeth Upton ("Assistant Principal Upton"), but in May 2000, Assistant Principal Upton was replaced by Assistant Principal Elaine Iodice ("Assistant Principal Iodice"). Id. at 46-48.

On January 12, 2001, plaintiff filed a charge of gender discrimination with the Equal Employment Opportunity Commissioner ("EEOC") claiming that individuals had placed disciplinary letters in his file with the intent to discriminate against him because he was a man. (Def.'s Ex. HH.) On April 24, 2001 plaintiff filed another charge with the EEOC claiming that defendant was retaliating against him by excluding him from meetings and suspending him from work. (Def.'s Ex. TT.) Then, on September 5, 2001, plaintiff filed the present complaint in federal court. (Def.'s Statement of Undisputed Facts at ¶ 76.)

Plaintiff remained in the position of supervisory school aide until October 2001, when he was terminated. Id. at 88-90. In November 2001, plaintiff filed another charge with the EEOC claiming that defendant retaliated against him by terminating his employment. (Def.'s Ex. YY.) Thereafter, in March 2002 plaintiff filed an amended complaint in the present matter, adding a claim for retaliation in connection with his termination. (Def.'s Ex. BBB.)

In this motion defendant seeks summary judgment on both plaintiff's discrimination and retaliation claims. Defendant alleges that plaintiff cannot show a prima face case for either claim and, even if he could, defendant argues that its actions were in fact legitimate and non-discriminatory in nature. In support of these claims, defendant submitted numerous exhibits, but in reply, plaintiff only submitted a handwritten letter accompanied by his markings on several other letters.

First, the reasons for plaintiff's termination, organized thematically, will be reviewed in section (1) of this background. Thereafter, in section (2), the facts underlying plaintiff's allegations and termination are organized chronologically. Unless otherwise noted, plaintiff in his deposition and submissions does not specifically contest defendant's accounts.

(1) Alleged Reasons for Plaintiff's Termination

Plaintiff's October 2001 termination letter, written by Deputy Superintendent August Saccoccio("Deputy Superintendent Saccoccio"), alleged that plaintiff was terminated based on his verbal abuse toward students and staff, insubordination, unsatisfactory performance, excessive absenteeism, and refusal to submit to a medical examination by the BOE's medical bureau.

(Def.'s Ex. XX.) According to defendant, plaintiff's termination was justified because they had received numerous complaints concerning plaintiff's work and had issued several written warnings to him. Plaintiff disputes the BOE's stated rationale for terminating him, arguing that he never did any of the acts that defendants claim he did. Instead he asserts that he was initially discriminated against because he was a man and then terminated as retaliation against him for filing a gender discrimination lawsuit. (Pl.'s Reply at 1.)

A. Verbal Abuse Toward Students

The first reason cited by the BOE for terminating plaintiff was plaintiff's alleged verbal abuse toward students. (Def.'s Ex. XX.) In May 2000, shortly after Assistant Principal Iodice began working at P.S. 16, she observed plaintiff line up approximately twenty children in the hallway, scream at them and deprive them of lunch. (Def.'s Ex. C, Deposition of Elaine Iodice, ("Iodice Dep.") at 37, 83.) Assistant Principal Iodice met with plaintiff on May 18, 2000 to discuss this incident and sent him a letter dated May 26, 2000 memorializing the discussion. (Def.'s Ex. J.)

In addition to this incident, Assistant Principal Iodice observed on another occasion plaintiff using foul language in front of the children, banging his hand on the table, and yelling into a bullhorn very close to the children's faces. (Iodice Dep. at 42-43.) Plaintiff, at his deposition in connection with this case, denied having screamed at the children, but admitted to raising his voice. (Def.'s Ex. B, Deposition of Jay Simon, conducted Oct. 18, 2002 ("Pl. Oct. 18 Dep.") at 49.) Plaintiff also denied using foul language around the children, though he did state that he occasionally slammed a book on a table in the cafeteria in order to "bring the children in line." (Pl. Oct. 18 Dep. at 51, 56.) Plaintiff testified he did this "[b]ecause the [other] school aides weren't doing their job and Ms. Iodice wasn't doing her job." Id. at 59. Plaintiff admitted in his deposition to using the bullhorn two to three feet away from a child, but then denied it later in the deposition. Id. at 51-54.

In the month of June 2000, P.S. 16's administration received ten letters from school aides complaining about plaintiff's treatment of the students. (Def.'s Ex. L.) The letters reported that plaintiff: screamed at children for talking; used foul language in front of children; removed children from their seats while their lunches remained uneaten; closed the bathrooms while 10-15 minutes of lunch remained, causing children to urinate on themselves; and made children sweep floors and clean tables with buckets of water and bleach. Id. Furthermore, one school aide saw children crying because they were afraid of plaintiff. Id.

In that same month, P.S. 16's administration also received twenty-six letters from fifth grade students complaining about plaintiff. (Def.'s Ex. K.) The letters from the students alleged that plaintiff: cursed in a low voice; screamed at them with the bullhorn; and told a misbehaving student that plaintiff would break his arm. Id.

B. Verbal Abuse Toward Staff

In addition to verbally abusing students, the BOE also alleged that plaintiff verbally abused various members of the staff at P.S. 16, particularly the other school aides. (Def.'s Ex. L.) The complaint letters from school aides alleged that plaintiff used profanity when referring to certain school aides, screamed at them and called them derogatory names like "imbecile" or "idiot." Id. On occasion he told the school aides to "move their asses" and that if they went "over his head" there would be "problems." Id. Plaintiff also threatened to fire all the school aides if they didn't do things "his way." Id. Plaintiff never denied these statements and contended at his deposition that the other school aides stood around "doing nothing" while he did their jobs and that when he complained to Assistant Principal Iodice about this she would "laugh in his face." (Pl. May 15 Dep. at 75.)

On June 27, 2000, Principal Murphy and Assistant Principal Iodice met with plaintiff, and wrote a letter to be placed in his file memorializing the meeting. (Def.'s Ex. M.) Among the issues documented in the letter were plaintiff's use of foul language, verbal abuse toward students and staff, and his speaking in a condescending manner, as well as threatening to write up or terminate school staff. Id. Plaintiff, in his deposition, said he did not speak at the meeting, but signed the letter on June 28, 2000, and attached a hand-written letter in which he denied or attempted to justify each allegation. (Id.; Def.'s Ex. N.)

C. Insubordination

The third reason cited by the BOE for plaintiff's termination was insubordination. (Def.'s Ex. XX.) According to Assistant Principal Maria Mannetta ("Assistant Principal Mannetta"), plaintiff took an unauthorized lunch, refused to stay late when asked and left the building without punching out. (Def.'s Ex. O.) After one incident, Principal Murphy wrote a letter to plaintiff alerting him that he had failed to pick up attendance cards. (Def.'s Ex. Z.) In response, plaintiff called Assistant Principal Mannetta and told her that she was not going to ruin his holiday. He said: "You'll see I'll take care of you. You'll hear from my lawyer." (Def.'s Ex. DD.)

Furthermore, on March 9, 2001, Assistant Principal Mannetta reprimanded plaintiff because he was writing notes at the cafeteria table during a lunch period instead of standing at the cafeteria exit to ensure safety. (Def.'s Ex. MM.) On both March 16, 2001 and March 28, 2001, plaintiff left the school without permission during his shift. (Def.'s Ex. NN.) On March 20, 2001 ...

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