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George Lawson v. Report and New York City Board of Recommendation Education

February 25, 2011

GEORGE LAWSON, PLAINTIFF,
v.
REPORT AND NEW YORK CITY BOARD OF RECOMMENDATION EDUCATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge

TO THE HONORABLE JED S. RAKOFF, United States District Judge,

I. Introduction

This is, in principal part, an employment discrimination action. Plaintiff, a former teacher employed by the New York City Department of Education, alleges that he was discriminated against on the basis of his national origin by being (1) subjected to a hostile working environment, (2) subjected to unequal terms and conditions of employment and (3) wrongfully terminated (Amended Complaint ("Am. Compl.") ¶¶ 52-53), all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Plaintiff also alleges (1) parallel discrimination claims under the New York State Executive Law § 290 et seq. and the New York City Administrative Code §§ 8-107(1)(a) et seq. (Am. Compl. ¶¶ 54-57), (2) claims for violations of his First Amendment right to free speech and his Fourteenth Amendment rights to due process and equal protection of the law (Am. Compl. ¶¶ 60-64), (3) parallel constitutional claims under the New York State constitution (Am. Cpt. ¶¶ 65-68), (4) a claim for retaliation in violation of 42 U.S.C. § 1981 (Am. Compl. ¶¶ 75-77) and (5) parallel retaliation claims under New York State Executive Law §§ 290 et seq. and the New York City Administrative Code §§ 8-107(1)(a) et seq. (Am. Compl. ¶¶ 75-80).

By defendants' notice of motion dated August 30, 2010 (Docket Item 50), defendants move for summary judgment dismissing all claims. Despite the fact that plaintiff's time to respond to the motion was never extended and despite the passage of almost six full months since defendants made their motion, as of 5:00 p.m. on February 24, 2011, all that plaintiff has filed is a fourteen-page memorandum of law (Docket Item 58) ("Plaintiff's Memo") that was filed on February 23, 2011.*fn1 I have considered plaintiff's memorandum of law in resolving defendants' motion. For the reasons set forth below, I respectfully recommend that defendants' motion be granted.

II. Facts

A. Facts Alleged in the Amended Complaint

Plaintiff's Amended Complaint (Docket Item 9) alleges the following facts.

In the fall of 2000, plaintiff began working as a full time Social Studies and Science teacher in Middle School 113 in the Bronx ("MS 113") (Am. Compl. ¶ 5). According to plaintiff, the student body of MS 113 is predominantly black and of West Indian national origin; a "much smaller" proportion of the teachers and administration are of West Indian national origin (Am. Compl. ¶ 7). When plaintiff commenced teaching at MS 113, the school had a Carribean Focus Team ("CFT") which plaintiff describes as being comprised of students who had immigrated from the West Indies within the last three years and teachers of West Indian National origin assigned to teach them and assist them with assimilation issues (Am. Compl. ¶ 7).

The events giving rise to plaintiff's claims allegedly began in September 2002 when a new acting principal, Cleveland Person, who is not of West Indian ancestry, was assigned to MS 113 (Am. Compl. ¶ 8). In December of that year, in a faculty meeting, defendant Person was discussing the behavior of a student who allegedly defecated on the floor. He called this a "cultural behavior." Many of the students in the school are West Indian immigrants or African immigrants. The West Indian teachers viewed this statement as an insensitive statement toward persons of other national origins and several objected to Mr. Person's characterization. Defendant Person defended his statement by listing cultures where he believed that defecating on the floor was in fact a cultural behavior, naming as examples the West Indian countries of Haiti and the Dominican Republic. . . . (Am. Compl. ¶ 9). Several teachers at MS 113 complained about Person's comments to both the United Federation of Teachers, a local community leader and others (Am. Compl. ¶ 9). As a result of the negative response to Person's comments, he subsequently apologized for the remarks to the faculty at MS 113 (Am. Compl. ¶ 10). The Amended Complaint does not detail any complaints made by plaintiff.

Despite the apology, however, plaintiff alleges that the teachers who complained about Person's comments, including plaintiff, were subsequently subjected to both discrimination and retaliation (Am. Compl. ¶ 11). In January 2003, plaintiff received an anonymous letter at school allegedly describing those who had complained about Person's statements as "'evil forces'" (Am. Compl. ¶ 12). Person allegedly removed the work of plain-tiff's students, who were mostly West Indian, and work of the West Indian students of other West Indian teachers from school bulletin boards, claiming that the removed work contained errors and did not merit being displayed as exemplary work. The works of non-West-Indian students, however, was not subjected to the same standard (Am. Compl. ¶ 13). In 2003, West Indian faculty were allegedly excluded from training opportunities and were denied access to books, equipment and other resources (Am. Compl. ¶ 14). Plaintiff alleges that he was given only 19 social studies textbooks to share among 150 students (Am. Compl. ¶ 15) while non-West Indian teachers were given two copies of the same textbooks for each of their students so that the students could keep one copy in school and one at home (Am. Compl. ¶ 16). Plaintiff also alleges that he was not given a copy of the teacher's edition of the social studies textbook while non-West Indian teachers were provided with the teacher's edition (Am. Compl. ¶ 17). Plaintiff claims that his students were given very limited access to the school library, while non-West Indian students were granted greater access*fn2 (Am. Compl. ¶ 18).

Plaintiff also alleges that most of the computers provided to his classes were broken and not repaired despite requests for repairs and despite the presence in the school of a cache of unused, operational computers (Am. Compl. ¶ 19). Plaintiff goes on to allege that the computers provided to non-West Indian students were in good order and that non-west Indian students were permitted to vandalize the computers in plaintiff's classroom (Am. Compl. ¶ 19). Plaintiff alleges that he and other West Indian faculty members were denied access to overhead projectors while other, non-West Indian faculty members were issued such projectors for use in their classrooms (Am. Compl. ¶ 20). Plaintiff also alleges that he was denied access to school facilities to provide extra help to students with their writing while white, non-West Indian faculty were granted access to the school's gym for student basketball practice (Am. Compl. ¶ 22). Plaintiff also alleges that West Indian students were denied access to after-school enrichment programs (Am. Compl. ¶ 23), were denied treatment by the school's nurse on terms equal to the treatment provided to non-West Indian students (Am. Compl. ¶ 24) and were admonished more harshly than non-West Indian students (Am. Compl. ¶ 25).

Plaintiff claims that he complained of the disparate treatment afforded to him and other West Indian faculty members but that no remedial action was taken (Am. Compl. ¶ 21).

Plaintiff further alleges that as a result of his complaints of discrimination and "his comments on various other matters of public concern involving the education of the children and the treatment of the teachers" he was subjected to a pattern of retaliation (Am. Compl. ¶ 27). Specifically, he claims that he was subjected to unjustified "write ups" concerning his performance while non-West Indian teachers were not written up for engaging in identical conduct and that he was written up for lateness while non-West Indian teachers who arrived at school at the same time as plaintiff were not written up (Am. Compl. ¶ 27). He also alleges that he was subjected to more frequent monitoring than other teachers (Am. Compl. ¶ 28). Finally in May and June 2003, plaintiff and other West Indian teachers were advised that they would receive unsatisfactory performance reviews for the year which would result in their termination and were given a choice of either resigning or being terminated (Am. Compl. ¶ 29).

Plaintiff refused to resign and was terminated on or about June 13, 2003 (Am. Compl. ¶¶ 30-31).

Plaintiff appealed his unsatisfactory rating and his termination (Am. Compl. ¶¶ 30-31).

Plaintiff claims that four days after his termination, a student found copies of an anonymous letter in plaintiff's class room. "It was addressed, 'To all the Barbarians and Banana Boat Niggers in MS 113' and it named various West Indian teachers, including plaintiff Lawson . . . . The letter contained obscene and racially offensive language and stated that the named teachers would all be removed from the school" (Am. Compl. ¶ 32). Plaintiff claims that the school's administration did not report the letter to either the New York City Board of Education or the police (Am. Compl. ¶ 32). After receiving numerous complaints about the letter, acting principal Person promised to make an effort to investigate the letter but took no action (Am. Compl. ¶ 33). The Amended Complaint contains no allegations connecting the anonymous letters to defendants.

Plaintiff claims that he complained of discrimination and retaliation to the New York City Board of Education's Office of Educational Opportunity at some unspecified time, but that the complaint was rejected on July 16, 2003 (Am. Compl. ¶ 34).

No West Indian teachers were hired to replace the West Indian teachers who were terminated from MS 113 in June 2003, and the West Indian teachers who did remain at MS 113 lost their home room assignments and were required to "float" (Am. Compl. ¶ 35). It is not clear from the Amended Complaint whether "floating" or having an assigned home room was more desirable or what the demands of each assignment were.

Because the appeal from his rating for the 2002-03 school year was still pending, plaintiff was rehired to teach at CIS 22 in the fall of 2003 (Am. Compl. ¶ 36). However, he was only compensated at the lower rate paid to substitute teachers and did not received any of the fringe benefits provided to full time teachers (Am. Compl. ¶ 36). Plaintiff was instructed to stop coming to work at CIS 22 in October 2003, and he was terminated from his position in January 2004. Plaintiff alleges that he was terminated because Person had intervened with the principal of CIS 22 and advised him not to hire plaintiff back (Am. Compl. ¶ 36).

In January 2004, the New York City Board of Education formally denied plaintiff a license to teach due to the unsatisfactory rating he had received at MS 113. Plaintiff had previously been granted a license that was valid through August 2005 (Am. Compl. ¶ 37).

The United Federation of Teachers subsequently filed a grievance on plaintiff's behalf which resulted in the reversal of plaintiff's unsatisfactory rating and his reinstatement at a middle school in September 2004; he was not, however, awarded back pay or seniority credit for the portion of the 2003-04 year that he did not work (Am. Compl. ¶ 38).

In September 2004, the Deputy Superintendent Jose Ruiz of Region 2 in the Bronx directed plaintiff to report for work as a social studies teacher at Middle School 135 (Am. Compl. ¶¶ 43-44). However, when plaintiff reported for work the principal gave plaintiff a letter from Ruiz informing him that the position to which plaintiff had been assigned was no longer available and that the only position available was a substitute/per diem position (Am. Compl. ¶¶ 45-47). Plaintiff refused to accept this position (Am. Compl. ¶ 47).

Despite the Amended Complaint's clear allegation that plaintiff refused the position he was offered at Middle School 135, it inexplicably goes to allege that plaintiff was mistreated in a number of ways that suggest plaintiff did accept the position. For example, plaintiff alleges that the principal at MS 135 commented that plaintiff was not tenured, implying that he could be easily fired (Am. Compl. ¶ 49(c)), a student was arrested for punching a white non-Caribbean teacher while physical attacks on plaintiff were either ignored or treated more lightly (Am. Compl. ¶ 49(d-e)), white non-Carribean faculty members were warned of impending negative performance reviews while plaintiff received no such warnings (Am. Compl. ¶ 49(f)), the issuance of an unsatisfactory rating to plaintiff did not comply with the operative of provisions of the parties' collective bargaining agreement (Am. Compl. ¶ 49(g)), plaintiff was singled out for observation (Am. Compl. ¶ 49(i)), after receiving an unsatisfactory rating, plaintiff was not given the same opportunity to transfer that was given to other teachers (Am. Compl. ¶ 49(j)) and plaintiff was falsely accused of inflicting capital punishment on a student while similar allegations against white faculty members were not reported to the Office of Special Investigations (Am. Compl. ¶ 49).

B. Facts Defendants Claim

Are Established by Discovery

In their unrebutted statement pursuant to Local Civil Rule 56.1, defendants contend that the following facts have been established either through discovery or by affidavits submitted in connection with the pending motion. As set forth in more detail below, the picture painted by defendants depicts plaintiff as a faculty member with persistent performance problems.

Plaintiff was an uncertified provisional preparatory teacher at MS 113 from September 2000 through June 2003 (Defendants' Rule 56.1 Statement in Support of Motion for Summary Judgment (Docket Item 55) ("Rule 56.1 Statement") ¶ 12; Affidavit of Philip Crowe, sworn to August 24, 2010 (Docket Item 51)("Crowe Aff.") ¶¶ 3-4). Many of the teachers at MS 113 were African American and/or of Carribean descent; plaintiff does not know if the number of teachers of Carribean descent changed during his tenure there (56.1 Statement ¶ 14; Declaration of Lawrence J. Profeta, dated August 30, 2010 (Docket Item 53)("Profeta Decl.") Ex. 33 at 66-69). MS 113's Assistant Principal during the 2002-03 school year, Leia McKinley is of West Indian descent (56.1 Statement ¶ 22; Ex. 36 to Profeta Decl. at 113, 116-17).

Marlene Filewich was District Superintendent of Community School District 11 from 2000 through 2003 and oversaw MS 113 and its principal (56.1 Statement ¶ 15; Ex. 37 to Profeta Decl. at 6-9).

Plaintiff testified that both Caribbean and non-Caribbean teachers taught CFT classes and that, notwithstanding its name, CFT classes were comprised of Caribbean, American, African and Asian students (56.1 Statement ¶ 20; Ex. 33 to Profeta Decl. 88-89, 97). The funds for the CFT were greatly restricted in the 2002-03 school year as a result of budget cuts resulting from the 2002 New York City budget crises (56.1 Statement ¶ 21; Ex. 37 to Profeta Decl. at 46-50).

Filewich participated in the selection of Person to serve as interim principal of MS 113 (56.1 Statement ¶ 16; Ex. 37 to Profeta Decl. at 15-16). At the time Person was appointed as interim principal, there was concern that classroom instruction at MS 113 was deficient, and Person was instructed to focus on attendance and suspension rates (56.1 Statement ¶ 17; Ex. 37 Profeta Decl. at 51-52, 121).

When Person started at MS 113, he found that teachers had not been required to have proper lesson plans; Person instructed the teachers at the school that he would insist in teachers being punctual, having proper lesson plans and would prohibit the posting of error-ridden student work as examples for other students (56.1 Statement ¶ 18, Ex. 35 to Profeta Decl. at 61-62, 72-73).

Assistant Principal McKinley observed plaintiff's social studies class on October 15, 2002, noted that students were not engaged in the lesson, that one student was sleeping and rated plaintiff's performance as unsatisfactory (56.1 Statement ¶ 23; Ex. 7 to Profeta Decl.). McKinley made the following recommendations:

Although the Social Studies textbook is titled "The American Journey" this particular lesson dealt with the Renaissance Period of European history and the opening up of trade routes between Europe and Asia. The N.Y. State Social Studies Standard for this lesson should have been given to the Students as Standard #2 -- World History.

The Aim of this lesson as stated in your lesson plan and on the large chart was related to "Europeans Investing in Overseas Exploration." However, this actual lesson presented to the students said nothing about "European Overseas Exploration." Also, in the lesson plan that you presented to me, you did not specify the exact homework assignment. . . .

* * * All students in the class should have the opportunity to participate in the lesson. By actively involving students in the lessons, you will prevent inattentiveness. . . . You should attempt to teach with more enthusiasm, which is essential for students to perform willingly and to their fullest capacity. Try to use other methods of teaching besides lecturing.

Mr. Lawson, I observed that your students were completing the tasks that you had assigned to them. However, there was confusion as to the written "Aim" and the actual lesson. Moreover, in the attached lesson plan that you handed me, in the "Aim" you misused the word "led", which should have been "lead." It is important that you strive to bring out the best potential from every student. Every good lesson plan should keep the students engaged for the entire period, and bring out in them an eagerness for learning. I am available to help you achieve these goals, and I will revisit your classroom to observe how well you have implemented the suggested recommendations. . . (56.1 Statement ¶ 23; Ex. 7 to Profeta Decl.). Plaintiff filed an unsuccessful grievance concerning McKinley's unsatisfactory rating (56.1 Statement ¶ 24; Ex. 33 to Profeta Decl. at 120, 128) 2002-03 was plaintiff's first year teaching social studies to an eighth-grade class, and McKinley recommended that plaintiff "buddy-up" with another, more experienced social studies teacher, Mr. Cassidy, who was the social studies consultant and the lead teacher in MS 113's Social Studies Department (56.1 Statement ¶ 25; Ex. 36 to Profeta Decl. at 75-78; see also Exs. 8, 9 to Profeta Decl.). Plaintiff did not follow up with Mr. Cassidy, and plainitff claimed to be unavailable when Mr. Cassidy tried to meet with plaintiff (56.1 Statement ¶ 26; Ex. 36 to Profeta Decl. at 77).

McKinley visited plaintiff's classroom again on November 12, 2002. When she asked to review the lesson plan, plaintiff gave her a lesson plan that was different from what he was actually teaching, which McKinley took to mean that he did not actually have a lesson plan for the class. McKinley directed plaintiff in writing to have a written lesson plan for all future classes (56.1 Statement ¶ 27; see Ex. 10 to Profeta Decl.). Plaintiff objected to McKinley's written admonition, considered it harassment and also filed a grievance as to it; this grievance was also unsuccessful (56.1 Statement ¶ 28; Ex. 33 to Profeta Decl. at 125-28).

McKinley visited plaintiff's classroom a third time on December 6, 2002 and noted that plaintiff did not have an "Aim," a "Do Now" assignment or homework written on the blackboard. When McKinley asked plaintiff for his lesson plan, he stated that he had "forgot it in the car" (56.1 Statement ¶ 29; Ex. 11 to Profeta Decl.). Plaintiff believed that McKinley's repeated visits to his classroom were excessive and constituted harassment (56.1 Statement ¶ 30; Ex. 33 to Profeta Decl. at 109-14). McKinley testified at her deposition she was following procedures for the observation of non-tenured or probationary teachers who were observed more frequently than tenured teachers (56.1 Statement ¶ 31); Ex. 36 to Profeta Decl. at 111-12).

Defendants admit that in December 2002, Person met with MS 113's staff, discussed that there was a problem with someone defecating in the halls and stated that it could be reflective of cultural behavior. Defendants note, however, that Person made his comments after consulting with a guidance counselor and that the guidance counselor had advised Person that the conduct could be reflective of cultural behavior by students of Asian, African or Middle Eastern backgrounds (56.1 Statement ¶ 34; Ex. 35 to Profeta Decl. at 26-28). After then meeting with the school's staff, Person met with Filewich (56.1 Statement ¶ 35; Ex. 37 to Profeta Decl. at 20-22). Filewich directed Person to conduct another meeting with the school's staff to apologize for his remarks and to send a letter to the staff apologizing for the remarks in writing (56.1 Statement ¶ 35; Ex. 37 to Profeta Decl. at 32-34). Person complied with these directions (56.1 Statement ¶ 35; Ex. 12 to Profeta Decl.; Ex. 35 to Profeta Decl. at 34-35).

Person also met with the Executive Board of the MS 113's Parents' Association concerning his comments after which the Parents' Association issued a letter a stating that it "ha[d] concluded that the allegations [about Person's comment] were misconstrued and the words taken out of context," and that the Parents' Association "stands firmly behind Mr. Person's objective to serve [the school's] children by improving the guidelines and standards of the school" (56.1 Statement ¶ 36; Ex. 13 to Profeta Decl.).

Plaintiff testified that after Person's apology, he and all the school's other teachers received a letter in support of Person which plaintiff considered to be "'hate mail'" (56.1 Statement ¶ 37; Ex. 37 to Profeta Decl. at 195-97). In the weeks after Person's December 2002 comment, plaintiff alleges that "those teachers who had complained about defendant Person's statement, including plaintiff, began facing an onslaught of further discrimination and retaliation" (56.1 Statement ¶ 38; Am. Compl. ¶ 11).

With respect to plaintiff's allegations that Person began removing the work of Caribbean students from bulletin boards after his December 2002 comments (Am. Compl. ¶ 13), Person testified that he would mark the errors on the posted work and would remove the work only if the errors were not corrected (56.1 Statement ¶ 40; Ex. 35 to Person Decl. at 150-53). Filewich testified that on one occasion she directed Person to remove a piece of student work from a bulletin board outside of plain-tiff's classroom because the item contained spelling and grammatical errors and was not, therefore, appropriately posted as a model; plaintiff subsequently complained to Filewich about the piece's removal (56.1 Statement ¶ 41; Ex. 37 to Profeta Decl. at 57-59).

Plaintiff also testified that after Person's December 2002 comments, the quality of the textbooks he received changed for the worse and that he was only given 22 textbooks while some non-Caribbean teachers received double sets of textbooks (56.1 Statement ¶ 42; Ex. 33 to Profeta Decl. at 153-56; Am. Compl. ¶¶ 15-16, 21). Defendants, however, have submitted evidence that all teachers at MS 113 were issued textbooks based on the number of students in the teacher's class and that the textbooks were used primarily as classroom resources because only a small percentage of MS 113 students could read at grade level (56.1 Statement ¶ 43; Ex. 38 to Profeta Decl. at 55-57). Assistant Principal McKinley testified that all the teachers on plaintiff's floor received the same allocation of textbooks (56.1 Statement ¶ 44; Ex. 36 to Profeta Decl. at 98-99). When Filewich went to MS 113 to observe plaintiff informally in the 2002-03 school year, she saw books strewn on the floor in plaintiff's classroom (56.1 Statement ¶ 45; Ex. 37 to Profeta Decl. at 121-24, 144-45). Person testified that when he learned that the textbooks issued to plaintiff were torn and dirty, he directed Assistant Principal McKinley to issue replacements for them (56.1 Statement ¶ 49; Ex. 35 to Profeta Decl. at 94-95, 156).

In response to plaintiff's allegation that he was not issued a teacher's edition of a Social Studies textbook, defendants offer evidence that each social studies teacher was issued a teacher's edition at the start of the school year and that additional copies would be made available upon request from Assistant Principal McKinley (Declaration of Leia McKinley, dated August 24, 2010 (Docket Item 52) ("McKinley Decl.") ¶ 3).

In response to plaintiff's allegations that he was issued non-functioning computers and denied an overhead projector (Am. Compl. ¶¶ 19-20), defendants offer evidence that there was an overhead projector in plaintiff's classroom at the start of the 2002-03 school year, but admits that overhead projectors that were severely damaged during the course of the school year may not have been replaced (McKinley Decl. ¶ 6). Contemporaneous documentary evidence indicates that plaintiff complained to school officials about damage to the computers in his classroom resulting from the student conduct (56.1 Statement ¶ 54; McKinley Decl. ¶ 6). Person testified, however, that plaintiff was not the only faculty member who complained about computers being broken and in disrepair (56.1 Statement ¶ 55; Ex. 35 to Profeta Decl. at 211-13).

In response to plaintiff's claims that students of Caribbean ancestry were not given the same access to school facilities that other students enjoyed (Am. Compl. ¶ 22), defendants offer evidence that during the 2002-03 school year, Person initiated a policy providing that any person seeking to use the school's premises for after school activities was required to obtain written permission and identify all the students participating in the activity (56.1 Statement ¶ 57; Ex. 35 to Profeta Decl. at 66-69). Plaintiff testified that he was never aware of this procedure (56.1 Statement ¶ 58; Ex. 34 to Profeta Decl. 22-25).

Assistant Principal McKinley observed plaintiff's class for a fourth time on February 24, 2003 and again rated plain-tiff's performance as unsatisfactory. The memorandum of her visit contained the following comments:

As I entered the classroom, the teacher was in the process of writing the Aim on the board. . . . The teacher also wrote, "Do Now: Lincoln's Gettysburg Address". There was no direction as to a "Do Now task" in which the students were to be engaged. The teacher concluded by writing the homework assignment which consisted of an article and several sentences to be written by the students. This writing process took 5 minutes, the students were not focused, and the classroom was noisy. . . . The teacher . . . produced one rexographed paper and asked the students to pass it around for the entire class to view. The teacher did not reveal the purpose of this paper, and there was no tie-in regarding the paper with the lesson. While the teacher's lesson plan, which was given to me when I entered the room, mentioned "Materials: Copies of Gettysburg Address" this is not what was on the rexographed paper. There were no copies of the Gettysburg Address distributed to the students during this lesson. . . . [T]he students defined "score" as settling a score in battle. The teacher did not explain that Lincoln used "score" to mean 20 years. Also, the teacher misspelled the word "consecrate", writing it as "consccrate" and did not correct this error. . . .

When the bell rang to signal the end of the learning period, the teacher then tried to quickly ask key pivotal questions. There was no time for the students to listen or respond, as they were packing up to leave. There was no summary of this lesson. Attendance was not taken, and the previous day's homework was not checked or collected.

* * * Mr. Lawson, I observed that the students in your class were not totally engaged in learning. . . . You have been assigned to work with a lead teacher, and a Social Studies consultant, to assist you in establishing classroom management routines to help you bring out the best potential from each student. I would advise that you visit with this teacher and observe how better structure can be established. I have offered my help to you on several occasions, and will continue to do so. . ..

(56.1 Statement ¶ 59; Ex. 17 to Profeta Decl.).

Plaintiff wrote to the Department of Education's Chancellor, Joel Klein, on May 27, 2003 (56.1 Statement ¶ 61). In his letter he claimed that there was a crisis at MS 113 that started when Person was assigned as acting Principal. Plaintiff complained of doorstops being "illegally" attached to doors, private entities soliciting business on school property during school hours and Person's December 2002 comments concerning "cultural behavior." Plaintiff claimed in the letter that the faculty members who were critical of Person's cultural behavior comment were "lambasted by UFT Chapter Leader, Paul Egan, who warned us of the backlash that could follow, for taking the stand we took." Plaintiff went on to claim that retaliatory conduct had already taken place:

The fact that many of us either openly or quietly disagreed with Mr. Persons's concept about our culture did not go down too well with at least one administrator. . . . That administrator has unleashed a pattern of harassment on us . . . She has targeted us and the students in our home room to the point where at least two of us (teachers and students) have been denied materials that we should be provided with, to teach our students. We have not been provided with copy papers, laptop computers, textbooks, teachers' [sic] edition of textbook . . . overhead projectors . . . among other basic essential teaching aids we have been denied, while our contemporaries have been provided with these and more materials. . . .

* * * Since then I have been subjected to some abuses from several quarters here in the school. On one occasion in the presence of one of my co-worker[s] I was called "slime" by one of my supervisor[s], Ms. Leia McKinley . . . . She has been constantly harassing my homeroom class, fellow West Indians, and African teachers, all of whom have stood our ground, that we are not "barbarians". . . . Another example is the destruction of a computer keyboard by some student, in the presence of Ms. McKinley, who did nothing about it. Her refusal to do anything to address other violent actions on the part of students from Class 838 who have exhibited violent behavior in my class. . . . In one instance some violent students from Class 838 were throwing heavy textbooks at each other . . . .

My problem with Ms. McKinley began early in the school year, when I reported a serious sexual harassment incident [by students] to her. . . . Since then I have been denied enough Social Studies Textbooks for my students, despite the fact that our contemporaries have been provided with these materials, which are in abundance at the school. . . . . . . We are told to make sure that all students [sic] work that goes upon [sic] the bulletin board are [sic] exemplary work, no spelling or grammatical errors, yet those who are issuing such directives are themselves sending around memos and letters home to parents and teachers with spelling errors (please see attach [sic] letters).

(56.1 Statement ¶ 61; Ex. 19 to Profeta Decl.).

Plaintiff received an unsatisfactory rating on his annual performance review on June 10, 2003 on the basis of McKinley's classroom observations (56.1 Statement ¶ 62; Ex. 35 to Profeta Decl. at 103; Ex. 20 to Profeta Decl.). On June 13, 2003, plaintiff was informed that his services at MS 113 were no longer needed (56.1 Statement ¶ 63; Ex. 21 to Profeta Decl.).

Plaintiff testified that four days later, while sweeping out plaintiff's classroom, a student found a number of envelopes, all containing the identical anonymous letter. The letter was addressed to "all the Barbarians and Banana Boat Niggers in MS 113, named various West Indian teachers including plaintiff and stated that all the named teachers wold be removed from the school (56.1 Statement ¶ 64; Ex. 33 to Profeta Decl. at 183-86). After seeing the letters, plaintiff called two other members of the Caribbean Focus Team to his classroom and they began opening the letters (56.1 Statement ¶ 65; Ex. 33 to Profeta Decl. at 186-88). Plaintiff did not immediately notify Person of the letters; plaintiff disseminated them to other teachers instead (56.1 Statement ¶ 66; Ex. 35 to Profeta Decl. at 170-74). After one of the other teachers who received a copy of the letter reported the incident to the UFT, the UFT accused plaintiff of writing the letter (56.1 Statement ¶ 67; Ex. 33 to Profeta Decl. at 190-91). Person subsequently received a copy of the letter, and it was reported to Filewich, the Department of Education's Equal Employment Office, the Department of Education's Office of Investigation (56.1 Statement ¶ 68; Ex. 23 to Profeta Decl.).

The subsequent investigation by these entities and by the New York City Police Department was unable to determine who was responsible for the letter (56.1 Statement ¶ 70; Ex. 23 to Profeta Decl.; Ex. 35 to Profeta Decl. at 174-76).

Sometime after June 17, 2003, plaintiff filed a form entitled "Complaint of Alleged Discrimination Form" with the Department of Education (Ex. 25 to Profeta Decl.). Although the form itself is undated, it claims that acts of discrimination occurred on June 17, 2003 and must, therefore, have been submitted after that date. The Department of Education subsequently ...


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