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Paul Desir v. Board of Cooperative Educational Services (Boces) Nassau County

March 29, 2011


The opinion of the court was delivered by: Mauskopf, United States District Judge.


Plaintiff Paul Desir ("Plaintiff") brings this action against his former employer, Nassau County Board of Cooperative Educational Services ("BOCES"), as well as certain school board officials and school administrators in their official and individual capacities, including: District Superintendent James Mapes, Deputy Superintendent John Gangemi, Principal Robert Lombardi, and Assistant Principal Sandra Tedesco. Plaintiff alleges discrimination on the basis of race and color in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), New York State Executive Law § 296, and the federal constitution under 42 U.S.C. § 1983. Currently before the Court is Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, Defendant's motion for summary judgment is GRANTED in its entirety. *fn1


The following facts are either undisputed or described in the light most favorable to the Plaintiff. See Capobianco v. City of N.Y., 422 F.3d 47, 50 n.1 (2d Cir. 2001). Plaintiff, an African-American male, was hired as a Special Education teacher at Eagle Avenue Middle School in West Hempstead, New York, effective on or about September 1, 2005. (Def. 56.1 Stmt. (Doc. No. 37) ¶ 9.) As a first-year teacher, Plaintiff was subject to a probationary period and to the terms and conditions of a Collective Bargaining Agreement ("CBA") between BOCES and the Teachers' Union. Principal Robert Lombardi and Vice Principal Sandra Tedesco interviewed Plaintiff for the teaching position at issue, and recommended him for the probationary position.*fn3 (See id. ¶¶ 3-5.) Robert Mapes testified that he thought that he was the Superintendent at the time Plaintiff was hired. (See id. ¶¶ 6-7.) The Board, exercising its ultimate hiring authority, hired Plaintiff on a probationary basis. (See id. ¶¶ 8-9.) At the time Plaintiff was hired, a Caucasian teacher also applied for the job in question; the Caucasian applicant was instead hired for the position of "temporary teacher," a non-tenure-track position. (Pl. 56.1 Cntrstmt. (Doc. No. 41) ¶ 118.)

On September 24, 2006, Plaintiff attended an orientation and signed a form acknowledging receipt of school policies and regulations. (Def. 56.1 Stmt. ¶ 10.)*fn4 In November 2005, Tedesco wrote Plaintiff a memo following an informal classroom observation, offering various recommendations for improvement, directing Defendant to consult with his mentor, and asking for a meeting at his convenience. (Id. ¶ 17.)*fn5 Also in November, a memo was sent to Plaintiff arranging for him to visit classrooms to view lessons. (Id. ¶ 18; Def. Decl. re: Mot. for Summ. J. (Doc. No. 38) ("Def. Decl."), Ex P.)*fn6 In December 2005, Plaintiff was admonished via memorandum by Lombardi for failing to leave plans for a substitute teacher in case of absence.*fn7

(Def. 56.1 Stmt. ¶ 19.)In January 2006, Tedesco again wrote Plaintiff a memo voicing concerns about his lesson plan and offering assistance. (Id. ¶ 20; Def. Decl. Ex R.)*fn8 On March 21, Lombardi issued a memo to Plaintiff regarding scoring errors in his standardized achievement test for Plaintiff's class. (Id. ¶ 25; Def. Decl. Ex. V.)*fn9

Lombardi gave Plaintiff four "unsatisfactory" performance evaluations between February and April of 2006. Plaintiff's first evaluation took place over three days, culminating in a February 2, 2006 written evaluation.*fn10 According to Plaintiff's evaluation, Lombardi made several attempts to observe him. (Id. ¶ 21; Def. Decl. Ex. S.)*fn11 On January 31, 2006, only one student was in the classroom upon Principal Lombardi's arrival. (Pl. 56.1 Cntrstmt. ¶ 46; Def. 56.1 Reply (Doc. No. 44) ¶ 46.) Lombardi returned the following day to Plaintiff's absence from class for fifteen and ten minute blocs, during which the children were left to play games with no educational value and to surf the internet in an unsupervised manner, leading to the suspension of their internet privileges. (Def. Decl. Ex. S.) On February 2, 2006, Plaintiff arrived seventeen minutes after Lombardi arrived; students proceeded to watch a movie without supervision, including inappropriate sexual scenes. (Id.) Defendant contends that at a post-observation conference, memorialized in writing, Plaintiff indicated that he was talking to another teacher during his absences; however, Plaintiff maintains this post-observation meeting did not occur. (Pl. 56.1 Cntrstmt. ¶ 21; Def. Decl. Ex S.) Lombardi told Plaintiff to be ready for his next observation "within the next month." (Id. ¶ 57; Def. Decl. Ex. S.)

Plaintiff's second evaluation took place February 27 and 28, 2006, culminating in a March 6, 2006 written evaluation. (Id. ¶ 58; Def. 56.1 Stmt. ¶ 23.) No pre-observation conference was held. (Pl. 56.1 Cntrstmt. ¶ 59; Def. 56.1 Reply ¶ 59.) The evaluation related several deficiencies with Plaintiff's teaching: there was too much free time; too much math and not enough social studies, science, or language arts; no evidence of a prepared lesson; and the math lesson itself was unsatisfactory. (Def. Decl. Ex U.) It suggested that Plaintiff have his weekly lessons planned ahead of time before meeting with his mentor on Tuesdays at 10:30 a.m. (See id.) Though Plaintiff did not object to these criticisms, he objected to what he perceived to be the lack of constructive criticism therein. (Pl. 56.1 Cntrstmt. ¶¶ 63-65.) A post-observation conference was held, which also served as a pre-observation conference for the next evaluation. (Def. 56.1 Stmt. ¶ 26; Pl. 56.1 Cntrstmt. ¶ 26.)

Plaintiff's third evaluation took place on March 29, 2006. (Def. 56.1 Stmt. ¶ 26.) Again, it noted several deficiencies: Plaintiff misinformed the students as to the definition of an indeX and appendix; there were no activities to test vocabulary; his Plan Book was disorganized and out of date; and his disciplinary methods were not effective. (Def. Decl. Ex. W) Plaintiff filed a grievance objecting to the fact that, in his opinion, the review was not constructive and was improper due to its timing.

Plaintiff's fourth evaluation took place one day later, on March 30, 2006. (Pl. 56.1 Cntrstmt. ¶ 70; Def. Decl. Ex. X.) Again, Lombardi noted deficiencies in Plaintiff's teaching: the lesson was disorganized and disjointed, with no identification of a lesson plan; the students appeared to have difficulty following the lesson; and the lesson did not demonstrate new learning or skills. (Id.) Plaintiff contends that procedural irregularities characterizing the manner in which he was evaluated support his claim that Defendants were animated by racial discrimination in their treatment of Plaintiff.

Several classroom incidents have also been set forth by the Plaintiff in support of his claim for racial discrimination. First, of the approximately six students in his class, there was only one Caucasian student, who was removed from the classroom. (Pl. 56.1 Cntrstmt. ¶¶ 29-32.) Second, his class roster fluctuated above the number permitted by law. (Pl. 56.1 Cntrstmt. ¶¶ 27-28.)Third, at least one of the students in Plaintiff's class used a racial epithet in addressing him; Plaintiff alleges that he informed Lombardi and Tedesco of this fact but that no action was taken. (Id. ¶ ¶ 109-10.) Fourth, he alleges his grievances were ignored, his requests for assistance and for conferences were "usually ignored," he was not allowed to see his personnel file, and he was not given a performance plan. (Id. ¶ ¶ 85, 88, 92, 105.) Fifth, Lombardi denied Plaintiff's request to conference with his mentor during class. (Id. ¶ ¶ 80, 86; Def. 56.1 Reply ¶ 86.)Sixth, Plaintiff describes a scenario in which his students were forced to shelve books in the library and "do other menial work."*fn12 (Pl. 56.1 Cntrstmt. ¶ 111.)

On April 3, 2006, Plaintiff was advised that, effective July 1, 2006, his employment would be terminated. (Id. ¶ 28.) On or about May 24, 2006, Plaintiff filed a complaint with the New York State Division of Human Rights ("NYSDHR"). (Def. 56.1 Stmt. ¶ 33.) On May 26, 2006, Executive Director Russell Riggio issued a letter to Plaintiff regarding a scheduled meeting to discuss an attendance issue; however, the proceedings were not completed because Plaintiff insisted on taping the conversation. (Id. ¶ 34.)

Plaintiff received an Unsatisfactory rating on his Summative Evaluation on May 30, 2006. (Id. 56.1 ¶ 35.) Plaintiff's June 6, 2006 meeting with Assistant Director of Human Resources Jeffrey Drucker was not completed because Plaintiff refused to confirm or deny whether he had a tape recorder in his possession. (Pl. 56.1 Cntrstmt. ¶ 36.) Drucker subsequently issued Plaintiff a letter, dated June 12, 2006, informing him that "[e]ffective June 13, 2006, you are administratively reassigned to your home. Effective June 13, 2006, you are not to be on any Nassau BOCES property unless directed by me." (Id. ¶ 37.) Lombardi testified that he was not aware of any person employed by BOCES administratively reassigned to their home during the school year. (Def. 56.1 Stmt. ¶ 102) A white woman eventually was hired as a probationary teacher. (Def. 56.1 Reply ¶ 114.)

On March 23, 2007, NYSDHR issued a Determination and Order of Dismissal for Administrative Convenience dismissing Plaintiff's complaint because he intended to pursue the matter in federal court. On May 15, 2007, Plaintiff commenced the instant action. On September 29, 2008, this Court granted Defendant's motion to dismiss with respect to Plaintiff's § 1983 substantive and procedural due process claims; his § 1983 claim for money damages against individual defendants in their official capacities; and Plaintiff's claim under New York Executive Law § 297. Defendants moved for summary judgment as to the remainder of the claims on June 18, 2010.


Summary judgment is appropriate when the pleadings, depositions, interrogatories, admissions, and affidavits demonstrate that there are no genuine issues of material fact in dispute and that one party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986).

In deciding a summary judgment motion, a district court must draw all reasonable inferences in favor of the nonmoving party. See id. at 249 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150 F.3d 132, 137 (2d Cir. 1998). The court must not "weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2007) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)). Any evidence in the record of any material fact from which an inference could be drawn in favor of the non-moving party precludes summary judgment. See Castle Rock Entm't, 150 F.3d at 137.

Once the movant has demonstrated that no genuine issue of material fact exists, then "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis in original). However, there must exist more than mere "metaphysical doubt as to the material facts" to defeat a summary judgment motion. Id. at 586. Instead, the non-moving party must present "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson,477 U.S. at 256. Only disputes over material facts "that might affect the outcome of the suit under the governing law" will properly preclude the entry of summary judgment. Id. at 248; see also Matsushita, 475 U.S. at 586.

Courts are obliged to exercise particular caution in determining whether to grant summary judgment, because direct evidence of an employer's discriminatory intent is rare and "must often be inferred from circumstantial evidence." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (quotation marks and citation omitted); Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). However, a plaintiff cannot defeat a summary judgment motion simply by presenting "conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). "Although intermediate evidentiary burdens shift back and forth under this framework, '[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Ragusa v. Malverne Union Free Sch. Dist., 582 F. Supp. 2d 326, 339 (E.D.N.Y. 2008) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)); see also Scwapp, 118 F.3d at 110.



Plaintiff alleges that BOCESdiscriminated against him by terminating him on the basis of race. See 42 U.S.C. §2000e-2(a). Title VII provides that it is an "unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1); see Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). Thus, "[a]n employment decision . . . violates Title VII when it is based in whole or in part on discrimination." Holcomb, 521 F.3d at 137 (citation omitted).

Courts analyze employment discrimination claims brought under Title VII by using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). First, a plaintiff must establish a prima facie case of discrimination by demonstrating that: "(1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination." Ruiz v. Cnty. of Rockland, 609 F.3d 486, 492 (2d Cir. 2010). The plaintiff's burden in ...

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