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Bastian v. New York City Dep't of Education

July 29, 2008


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge


Plaintiff Barry Bastian brings claims of gender, age, and race discrimination and retaliation, pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. ("Title IX"), the Equal Pay Act, 29 U.S.C. § 206(d) ("EPA"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. ("ADEA"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), as well as a state common law contract claim, against Defendants New York City Department of Education ("DOE") and Joel I. Klein, Chancellor ("Defendants").*fn1

Plaintiff, a tenured educator and former head coach of the boys' track and field program at Port Richmond High School ("PRHS") in Staten Island, New York, alleges disparate treatment and disparate impact arising from: (1) his allegedly inferior compensation as compared to female coaches; (2) the allegedly inferior funding of the boys' track team in comparison to other girls' sports teams; and (3) adverse actions taken against him by school management, including his termination as the boys' track coach. He also alleges retaliation within the meaning of Title VII and Title IX based on: (1) his termination as the boys' track coach, ostensibly for complaining about unequal funding; and (2) his reassignment to a non-teaching position and the filing of disciplinary charges, purportedly as retribution for his initiation of this lawsuit. Finally, he claims that, by taking such actions, Defendants breached the implied covenant of good faith and fair dealing.

Defendants now move for summary judgment on all claims, contending that: (1) the various non-retaliation Title VII and ADEA claims are time-barred; (2) the equal pay claim is unsupported and frivolous; (3) Plaintiff's Title IX discrimination and retaliation claims relating to his termination as track coach are not supported by credible evidence; (4) Plaintiff fails to establish a causal connection sufficient to support his Title VII and Title IX retaliation claims based on his reassignment; and (5) Plaintiff failed to satisfy the notice of claim requirements applicable to state common law claims brought against the DOE. Defendants maintain throughout that Plaintiff was not subjected to any form of discriminatory treatment and that any subsequent actions taken against Plaintiff were for legitimate, non-discriminatory reasons.

For the reasons set forth below, Defendants' motion is granted and Plaintiff's claims are hereby dismissed.


Plaintiff is a 58-year-old African-American male. Prior to his reassignment in January 2006, Plaintiff taught health and physical education courses at PRHS for approximately thirty-one years. Plaintiff also served as the boys' track and cross-country coach from 1977 until his removal from that position on February 27, 2003.

A. Funding of Athletics Program at PRHS

Much of the present controversy is tied either directly or indirectly to the compensation of coaches and the funding of the various athletic programs at PRHS. Plaintiff concedes that all coaches at PRHS are paid at the same hourly rate, irrespective of experience, race, age, gender, or sport. That amount is set per the terms of the Collective Bargaining Agreement ("CBA") between Plaintiff's Union-the United Federation of Teachers-and the DOE. (See Declaration of Ivan A. Mendez, Jr. ("Mendez Decl."), Ex. B, CBA Article 15A; Ex. C, Miscellaneous UFT Rates 2003-2007 Contract.) The maximum number of compensable sessions for each sport is set forth in Article 15A of the CBA. (Mendez Decl., Ex. B.) Plaintiff contends, however, that his overall pay was lower than that of other coaches because PRHS Athletic Director, Susan Rossi, allocated the track and cross-country teams comparatively fewer sessions. Rossi, who also serves as Assistant Principal of Health and Physical Education, was hired in 1997. Plaintiff's allegations coincide with Rossi's tenure as his superior.

It is clear that many of the coaches at PRHS were dissatisfied with the funding for their respective teams. Rossi testified at her deposition that Plaintiff and his fellow coaches complained to her about funding from "day one." (Mendez Decl., Ex. D, 54:25-55:3.) Principal Robert J. Graham, who also played a role in formulating the school's athletic budget, testified that Plaintiff brought similar complaints to him on a number of occasions. Plaintiff confirmed that he had complained about insufficient funding throughout his twenty-six years of coaching at PRHS.

Between 2000 and 2004, PRHS maintained 30 to 32 athletic teams per year. Both Assistant Principal Rossi and Principal Graham testified that they allocated funds to PRHS's teams based on: (1) the number of students on each team, and (2) the team's needs and requirements. During that time, only budgets for football and baseball, which have both varsity and junior varsity squads and significantly more participants, ever exceeded the boys' track team budget. The budget for the boys' track team equaled or exceeded the budget of each girls' team, irrespective of sport, for those years. The boys' and girls' track team budgets were identical. The gymnastics team, which Plaintiff uses for Title IX comparative purposes, received $2,250 less than the boys' track team per year.

B. Plaintiff's Misconduct and Termination as Boys' Track and Field Coach

Plaintiff accumulated eight letters of reprimand for various transgressions in the six years preceding his removal from the coaching position in 2003. Plaintiff was counseled on several occasions regarding his repeated failure to supervise track students in the gymnasium, the school hallways, the classroom, and at a nearby park. He had a verbal altercation with the father of a runner in which he told the father to "go to hell." Plaintiff violated Public Schools Athletic League ("PSAL") rules by entering an academically ineligible student in a track meet, entering a student in a track meet under another student's name, and permitting a student to run without eligibility verification. He also conceded that, in contravention of school policy, he had approached at least two teachers and suggested that they alter student athletes' grades to preserve their eligibility for competition.

On February 27, 2003, Principal Graham terminated Plaintiff's position as track coach citing a "pattern of disregard" for the Athletic Department rules and regulations.*fn3

Plaintiff was fifty-three years old at the time. His permanent replacement as PRHS boys' track and field coach was an African-American female over the age of 40.

On June 7, 2004, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Only the boxes for "age," "race," and "retaliation" are checked in Plaintiff's EEOC charge. On June 17, 2004, the EEOC closed the complaint file because it was not timely filed. (Reply Declaration of Ivan A. Mendez, Jr. ("Mendez Reply Decl."), Ex. GG.) On September 20, 2004, Plaintiff commenced this action.

C. Disciplinary Charges and Reassignment

On or about December 13, 2005, several female students in Plaintiff's health class came forward with allegations that Plaintiff: (1) made inappropriate physical contact with one student; and (2) made sexually suggestive statements and other inappropriate comments concerning other students' weight, family, and religion. On December 14, 2005, two of the students brought their concerns to Assistant Principal Joan DiDomenico, who instructed the students to write their complaints and forwarded them to Assistant Principal Rossi. At the time, Rossi, as the senior Assistant Principal, was filling in for Principal Timothy Gannon who was away from school. DiDomenico notified Gannon of the situation by telephone. Gannon testified that, during that phone conversation, he instructed Rossi to remove herself from the investigation due to what he considered the "negative" history between her and Plaintiff and to ensure that the investigation was carried out in an objective, impartial manner. (Mendez Decl., Ex. X, Gannon Dep. 17:23-18:5.) Assistant Principal Andrew Greenfield immediately referred the matter to the DOE's Office of Special Investigations ("OSI"), a neutral investigator with the power of subpoena that is unaffiliated with a specific high school.

Pursuant to the recommendation of OSI Investigator Dennis Boyles, Plaintiff was removed from the classroom on January 3, 2006 as a precautionary measure pending the investigation and transferred to the DOE's Staten Island reassignment center (a.k.a. the "Rubber Room"). Boyles interviewed or received statements from approximately ten students in Plaintiff's class. He also met with PRHS administrators and interviewed the Plaintiff. At the conclusion of his two-month investigation, Boyles concluded in a February 28, 2006 memorandum that the allegations against the Plaintiff were substantiated. (See Mendez Decl., Ex. R, May 5, 2006 Letter from Gannon to Plaintiff, Attachment A.) He recommended that Plaintiff's case be referred to the DOE in order to determine whether disciplinary charges should be filed against Plaintiff.

On his 2005-2006 annual performance review, Plaintiff received an overall unsatisfactory rating. (Pl.'s Opp'n to Def.'s Mot. for Summ. J., Ex. II.) On June 21, 2006, he was served with disciplinary charges. The record is silent as to whether these charges are still pending and whether Plaintiff has ever instituted proceedings to challenge or rebut the OSI's findings. Plaintiff amended his ...

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