The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
Plaintiff pro se Hui Zhang Altman ("Plaintiff" or "Altman") filed a complaint against Defendant New York City Board of Education ("BOE") and four individual Defendants, David Kroun, Claralee Irobunda, Steven Chernigoff, and Olivia Ifill-Lynch. Plaintiff alleged that she was discriminated and retaliated against on the basis of her national origin, in violation of Title VII of the Civil Rights Act of 1964, see 42 U.S.C. §§ 2000e -- 2000e-17 (2007), and age, in violation of the Age Discrimination in Employment Act ("ADEA"), see 29 U.S.C. §§ 621 -- 634 (2007). On March 23, 2007, I dismissed Plaintiff's claims against the individual Defendants in their individual capacities. See Altman v. N.Y. City of Dep't of Educ., 2007 U.S. Dist. LEXIS 20418, at *5-7 (S.D.N.Y. Mar. 23, 2007).
Defendants then filed a motion for summary judgment. On May 3, 2007, I denied Defendants' motion for summary judgment on the Title VII claims because, using the more liberal test allowed to a party that proceeds pro se, I determined that issues of material fact remained. However, I granted Defendants' motion for summary judgment on the ADEA claim, because Plaintiff did not state facts sufficient to support those claims. The Bench Trial began on July 30, 2007 and concluded on July 31, 2007.
Plaintiff pro se Hui Zhang Altman ("Altman" or "Plaintiff") is a 48-year old woman of Chinese national origin. See Pl. Compl. at 3, 5. Altman was hired to teach at Morris High School ("Morris"), where her claims arose, in September 1998. Tr. at 158. At the time of her hiring Plaintiff was licensed in English but not in English as a Second Language ("ESL"), Plaintiff nonetheless began teaching both classes.*fn1
At the time of Plaintiff's arrival, Morris was one of the lowest-performing high schools in the Bronx, with meager attendance and graduation rates and conversely high dropout rates.*fn2 Tr. at 229-30. One of the ways that the administration at Morris sought to address these concerns was to regularly observe teachers in their classroom environment in order to identify areas for improvement in how the school might more effectively fulfill its educational mission. This evaluation policy was in place even before Plaintiff's arrival at Morris and continued throughout her tenure there. Thus, soon after her arrival in 1998, Plaintiff's supervisors began visiting her classes and providing evaluations based on their observations.
Iris Zucker ("Zucker"), who from 1997 to 2002 was the assistant principal for foreign languages and ESL at Morris, visited Plaintiff's class at least five times between November 13, 1998 and May 25, 1999; after each visit, Zucker rated Plaintiff "Satisfactory." Def. Ex. A, B, C, D, and E. On May 5, 2000, the assistant principal for English, Michael Nemoytin, observed Plaintiff in her class and likewise gave her a rating of "Satisfactory." Def. Ex. F. Later, on October 23, 2000, Plaintiff received another "Satisfactory" rating, this time from Joseph Sherman, another assistant principal.
At the beginning of the 2001 academic year, Morris brought in several new people to join the administration: Steven Chernigoff ("Chernigoff") was hired as the assistant principal for English, Tr. at 98; Jose Ruiz ("Ruiz") was hired as the principal, Tr. at 174; and Claralee Irobunda ("Irobunda") was hired as assistant principal for guidance, Tr. at 202. As with their predecessors, these three continued the policy of observing Morris teachers-including Plaintiff-in the classroom.
In September 2001, then-Assistant Principal Chernigoff identified Plaintiff as one of the teachers in need of extra support and observation. Tr. at 98. Chernigoff testified that "there were many times in which I went in to observe her formally and to give her an evaluation and the lesson was not strong enough in order to get a satisfactory observation." Tr. at 100. He states he "worked with Ms. Altman in order not to give her an unsatisfactory, but in order to work with her and support her and help her in getting a satisfactory observation." Id. It appears, though, that these efforts were not successful. In December 2002, Chernigoff rated Plaintiff's lesson "unsatisfactory," explaining that "[Altman] did not achieve her objectives for the lesson." Def. Ex. M. Chernigoff also observed that Plaintiff displayed poor classroom management skills and pedagogical techniques, and did not engage the students or solicit adequate class participation during her lesson. See, e.g., id.
In response to this rating, Plaintiff wrote a complaint letter to Principal Ruiz on January 3, 2003, stating that she had never before received a rating of "Unsatisfactory," and opining that for Chernigoff to give her an unsatisfactory rating "he has to have so much hatred and prejudice against me in his heart." Def. Ex. CCC.
Later in 2003, Plaintiff left Morris to teach ESL at the High School of Violin and Dance. Tr. at 171. Plaintiff did not remain in her new position for very long and returned to Morris after only one semester.*fn3 Tr. at 173. Once back at Morris, Plaintiff resumed teaching ESL. On March 10, 2004, Chernigoff again observed Plaintiff's class and again rated Plaintiff "Unsatisfactory." In his review, Chernigoff stated: "[a]s a teacher of language and literature, you must model appropriate language usage for your students. The . . . handout sheet [you prepared] was littered with incorrect spellings, inconsistencies, and grammatical errors . . ." Def. Ex. II. Chernigoff also noted that the lesson Plaintiff assigned to her students did not comport with the book that Plaintiff was assigned to teach. Id.
Once again, Plaintiff wrote a letter of complaint, this time addressed to Principal Claralee Irobunda and dated March 18, 2004. Def. Ex. DDD. In that letter, Plaintiff recounted how well she felt the class that Chernigoff observed had been conducted, and declared that "Mr. Chernigoff knows that I will be getting tenured by the end of this semeseter. By giving my [an Unsatisfactory] rating, he is abusing his power and damaging my future! He is using the power to fulfill his personal revenge against me." Subsequently, Plaintiff's superiors agreed to her request to hold a meeting with Plaintiff, her union representative, Chernigoff, and Irobunda on April 15, 2004 to discuss a "helping plan" for the Plaintiff. Def. Ex. LL.
Despite these accommodations, Plaintiff continued to receive unsatisfactory ratings. On April 30, 2004, Principal Irobunda rated Plaintiff "unsatisfactory," stating that Plaintiff "did not model language appropriately," and, for example, mispronounced the words "ornament," "foamy," "wreckage," and "hasten." Def. Ex. NN. Irobunda also noted that "[s]tudents did not produce enough oral language for an ESL class . . . . the implementation of the lesson was flawed . . . . [Altman had] low expectation of [her] students . . . [Altman's] cell phone went off . . . and [Altman] answered it." Id.
Once again May 24, 2004, Principal Irobunda observed Plaintiff's class and rated her "unsatisfactory" because of her inability to "model properly." Def. Ex. QQ. Thereafter, Irobunda apparently notified Olivia Ifill-Lynch ("Ifill-Lynch"), the superintendent, that Irobunda "would like to rate [Plaintiff] unsatisfactory and would like the superintendent to deny her completion of probation" for her ESL license. Tr. at 246. As a result, Ifill-Lynch sent David Kroun ("Kroun"), an administrator in the New York school system, to observe Plaintiff and provide an evaluation.*fn4 Kroun visited Plaintiff's class on June 15, 2004, and his evaluation matched Irobunda's rating of unsatisfactory. Included in some two-dozen areas of concern that Kroun identified in his detailed report were Plaintiff's failure to have a lesson plan, to properly prepare students, to give an appropriate assignment on written exercises, to give appropriate guidelines for completing class work, to give clear expectations regarding assignments, and to provide students with feedback on their writing. Def. Ex. RR. Kroun recommended to the Superintendent that Plaintiff be denied completion of probation. Id. Superintendent Olivia Ifill-Lynch denied Plaintiff her completion of probation, stating that Plaintiff's employment would terminate effective August 20, 2004. Id.
Plaintiff appealed this decision to the to the Chancellor's Committee, who also denied. See Ex. KK. Plaintiff filed a complaint with the New York State Division of Human Rights on December 14, 2004 and was dismissed on April 20, 2004. The EEOC mailed Plaintiff a "right-to-sue" letter on June 7, 2006. On July 12, 2006, Plaintiff filed this complaint alleging she was discriminated and retaliated against on the basis of her national origin, in violation of Title VII of the Civil Rights Act of 1964, see 42 U.S.C. §§ 2000e -- 2000e-17 (2007), and age, in violation of the Age Discrimination in Employment Act ("ADEA"), see 29 U.S.C. §§ 621 -- 634 (2007).
A. Plaintiff's Discrimination Claim Based on National Origin
To establish a prima facie case of discrimination with respect to Title VII, a plaintiff must show that (1) she is a member of a protected class; (2) she was qualified for the job; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discriminatory intent. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004). If plaintiff establishes these elements, the burden of going forward shifts to the employer to "articulate some legitimate, non-discriminatory reason for the employer's rejection." McDonnell Douglas, 411 U.S. 792, 802. If the employer is able to do so, then the plaintiff, who has the burden of proof throughout, must show that the stated reason is pretextual.
Defendants concede that Plaintiff has made out the first three elements of her prima facie case leaving opposition only to the fourth element-that the material adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.
Plaintiff alleges that "[t]hey fired me by blaming [sic] not to be able to pronounce English correctly because I have a Chinese accent." Pl. Comp. at 6. As courts have recognized, "comments about a person's accent may be probative of discriminatory intent." See Thelusma v. New York City Bd. of Educ., 2006 U.S. Dist. LEXIS 64855, at *6 (E.D.N.Y. Sept. 26, 2006) citing Rivera v. Baccarat, Inc., 10 F. Supp. 2d 318, 324 (S.D.N.Y. 1998) ("Accent and national origin are obviously inextricably intertwined in many cases"); see also Fragante v. City and County of Honolulu, 888 F.2d 591, 596 (2d Cir. 1989). "[A]n adverse employment decision may be predicated upon an individual's accent when --but only when-it interferes materially with job performance." Meng v. Ipanema Shoe Corp., 73 F. Supp. 2d 392, 399 (S.D.N.Y. 1999) (Scheindlin, J.), quoting Fragante v. City and County of Honolulu, 888 F.2d 591, ...