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Joseph Gray v. City of New York

December 12, 2011


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


On July 16, 2008, plaintiff Joseph Gray filed this action against the City of New York ("City"), the City of New York Department of Education ("DOE"), and Jerod Resnick, in his individual capacity (collectively "defendants"). Compl., ECF No. 1. Plaintiff alleges race discrimination and retaliation in violation of 42 U.S.C. § 1981 and the Equal Protection Clause of the Fourteenth Amendment. Second Am. Compl., ECF No. 27. Defendants have filed a motion for summary judgment and the parties have consented to have me rule on the motion. ECF Nos. 35, 46, 54. For the reasons explained below, the motion is granted.

Plaintiff's primary discrimination and retaliation claims concern the termination of his employment as a teacher after he allegedly attended a school dance while intoxicated and attempted to dance with a student. Those claims are utterly meritless. As discussed below, plaintiff's misconduct at the dance was reported by multiple sources and was substantiated after an independent investigation.


A. Plaintiff's Employment with the DOE

Plaintiff was employed as a teacher by the DOE from 2001 through August 2005. Defs.' Rule 56.1 Statement ("Defs.' 56.1") ¶ 3, ECF No. 47*fn1 ; Exs. to Aff. of Ambrose Wotorson in Opp. to Defs.' Mot. for Summ. J. ("Pl.'s Ex."), Aff. of Joseph Gray ("Gray Aff.") ¶ 1, Pl.'s Ex. 30, ECF No. 43. Plaintiff, who is African-American, began working as a substitute teacher in 2001 and became a full-time probationary teacher in September 2003.*fn2 Defs.' 56.1 ¶¶ 2-3. Plaintiff worked at the High School of Graphic Communication Arts ("HSGCA") for the entire period of his employment with the DOE. Id. ¶ 4. Resnick became the principal of HSGCA in February 2003. Id. ¶ 7. Plaintiff was eventually terminated in the summer of 2005, prior to receiving tenure. Dep. of Joseph Gray ("Gray Dep.") 15, Pl.'s Ex. 29.

Plaintiff had a "Performing Arts Radio" license pursuant to which he was licensed to teach video production. Pl.'s Ex. 31; Gray Aff. ¶ 2. After plaintiff was hired as a substitute, he taught photography, which he was teaching when Resnick began working at HSGCA in February 2003. Defs.' 56.1 ¶ 8(b); Gray Dep. 26-28; Pl.'s Exs. 1-4. Plaintiff maintains that when he became a full-time probationary teacher, he was hired to fill the photography position left vacant by a retiring teacher. Gray Dep. 28. However, at some point during 2003-2004 school year (most likely at the beginning of the year), plaintiff was assigned to teach health and hygiene. Defs.' 56.1 ¶ 8(b); Gray Dep. 26-27. Plaintiff taught health and hygiene during the first semester of the 2003-2004 school year and then taught at least one photography class during the second half of that school year.*fn3 Pl.'s Exs. 7-9; see also Second Am. Compl. ¶ 9(f) (alleging that plaintiff taught "a Photography class" in Spring 2004 after a regular teacher went out sick).

From the beginning of his employment through the end of the 2003-2004 school year, plaintiff received satisfactory evaluations and observation reports, including a satisfactory annual evaluation in June 2004 signed by Resnick. Pl.'s Ex. 10; Gray Aff. ¶ 3. In 2003, Resnick also sent two letters to plaintiff thanking him for participating in after-school activities such as the school dance. Pl.'s Exs. 5-6. In April 2004, plaintiff was accused of corporal punishment for calling a student "stupid." Defs.' Ex. O. Resnick, however, found the charge to be unsubstantiated. Id.

B. Placement in the Absent Teacher Reserve for the 2004-2005 School Year

For the 2004-2005 school year, Nancy Opitz, a white female who had been a student teacher at HSGCA the prior year, was hired by Resnick and assigned to teach photography classes. Defs.' Reply Ex. B; Dep. of Jerod Resnick ("Resnick Dep.") 34, Pl.'s Ex. 28; Gray Aff. ¶ 6; Gray Dep. 18. Unlike plaintiff, Opitz had a photography license. Resnick Dep. 34. According to Resnick, it is "preferable" that teachers be licensed for the specific classes that they teach. Resnick Dep. 37. Both New York State and New York City "push[ed] principals" to ensure that all teachers possessed licenses for the classes they taught. Id. Resnick, however,concedes that in 2004 and 2005 he likely had some teachers teaching courses for which they were not licensed. Id. at 37-38.

The same year that Opitz was hired, plaintiff was "excessed" and placed in the Absent Teacher Reserve ("ATR").*fn4 Defs.' 56.1 ¶ 8(c); Gray Dep. 16, 18; Resnick Dep. 41; Defs.' Reply Ex. C.

Teachers are usually placed in the ATR when a school has excess staff due to reductions in enrollment or funding. Resnick Dep. 48. Both tenured and probationary teachers can be placed in the ATR. Id. A teacher can challenge an ATR placement by establishing that someone with the same license and less seniority was not excessed. Id. at 49.

Placement in the ATR relegated plaintiff to serving as a full-time substitute. Resnick Dep. 28; Gray Aff. ¶ 7. Once he was placed in the ATR, plaintiff was assigned to different classes, Pl.'s Ex. 12, and no longer taught any photography classes full-time. Being placed in the ATR did not decrease plaintiff's salary or benefits. Gray Dep. 20. Plaintiff, however, maintains that the ATR placement "took [him] off the tenure track." Gray Aff. ¶ 7.

According to Resnick, plaintiff was excessed and placed in the ATR because there were not enough video production classes to warrant hiring plaintiff as a full-time teacher. Resnick Dep. 41, 44, 46. At the time, the school only had two video classes; those classes were assigned to Elizabeth Torres, who is not African-American. Id.; Gray Aff. ¶ 8. The record does not indicate which other classes Torres taught at the time. Torres, who was tenured and a full-time teacher since 1995, had the same photography license as Opitz.*fn5 Defs.' Reply Ex. F.

There is a factual dispute as to whether Torres' photography license covered the video classes that she taught. At his deposition, Resnick testified that Torres was teaching in her license area. Resnick Dep. 39. However, his testimony was somewhat equivocal when he was directly asked if video classes were within Torres' license area. Id. at 40. Also, in addition to Resnick's testimony, plaintiff's affidavit asserts that Torres was teaching outside of her license area. Gray Aff. ¶ 8.

At some point after Opitz was hired, plaintiff asked Resnick why the photography classes were given to a white and inexperienced teacher. Gray Dep. 31; Gray Aff. ¶ 9. Plaintiff, however, does not identify when he raised this issue with Resnick.

C. Corporal Punishment Incidents

After an allegation of corporal punishment was raised against plaintiff stemming from an incident on October 27, 2004, plaintiff submitted a statement detailing his version of the events. Pl.'s Ex. 11; see also Gray Aff. ¶ 11. According to plaintiff, during class, two students had moved their chairs out of the row and were playing cards. Pl.'s Ex. 11. When plaintiff told them to stop and attempted to move the chairs back, one of the students held on to the chair to prevent plaintiff from moving it. Id. The student then got "up in [plaintiff's] face," bumping plaintiff's chest and arguing with him. Id. During this confrontation, an unexpected cough struck plaintiff and he did not have time to turn away or cover his mouth before coughing in the student's face. Id. The student then became more confrontational and threatened to "get [plaintiff] after school." Id. Plaintiff responded, "let's settle it now." Id. Plaintiff followed the student towards the classroom door; however, when the student stepped outside of the classroom, plaintiff shut the door behind him. Id. Security then took the student away. Id. Later that day, the police came to the school and asked plaintiff if he wanted to press charges against the student; plaintiff declined. Gray Dep. 42. That same day, Assistant Principal Peter Mercado spoke to plaintiff about the incident and threatened to send plaintiff to the "rubber room."*fn6 Gray Dep. 42-44. Resnick also interviewed plaintiff about the allegations. Resnick Dep. 31.

On November 8, 2004, Resnick issued plaintiff a letter criticizing plaintiff's conduct and sustaining the allegation of corporal punishment against him. Pl.'s Ex. 12. The letter's factual account of the incident largely tracks plaintiff's version of events. Id. Resnick stressed that a teacher's responsibility is to "de-escalate incidents" and outlined a number of ways plaintiff could have accomplished this, including "stepping back from the student," "turning your head or covering your mouth when coughing," and not using inflammatory words that indicate a willingness to fight a student. Id.; see also Resnick Dep. 25-26 (discussing how plaintiff could have reacted differently and the dangers inherent in the approach taken by plaintiff). Resnick's letter did acknowledge the difficulties that plaintiff faced as an ATR teacher who had to cover different classes. Pl.'s Ex. 12. Nonetheless, the letter warned plaintiff that if he engaged in this type of behavior again, he may receive an unsatisfactory rating and be terminated. Id. Subsequently, plaintiff sent Resnick a letter seeking to clarify that the student was aggressive and confrontational prior to plaintiff coughing on him and that plaintiff was unable to cover his mouth when he coughed because he feared that he would touch the student given their close proximity. Pl.'s Ex. 13.

On March 18, 2005, plaintiff was involved in another incident with a student during school hours that resulted in a sustained charge of corporal punishment. Defs.' Ex. M (March 28, 2005, letter from Resnick to plaintiff). When plaintiff attempted to discipline a disruptive student, the student challenged him to a fight. Id. Other students in the class reported that plaintiff responded that he would fight the student later. Id. Plaintiff, however, insisted that he had jokingly told the disruptive student, "I can't fight right now." Id. In criticizing plaintiff's conduct, Resnick, who interviewed plaintiff about the allegations, Resnick Dep. 31, noted that he had previously criticized plaintiff's use of inflammatory words during the fall 2004 incident, Defs.' Ex. M.

Other than noting that the student became aggressive and violent towards him, plaintiff does not dispute the underlying facts outlined in Resnick's March 28, 2005, letter. Gray Aff. ¶ 19. Plaintiff simply insists that he tried to defuse the situation by making a joke. Id.; Pl.'s Ex. 20.

D. March 18, 2005, School Dance and Plaintiff's Termination

The school held a dance on the night of Friday March 18, 2005. Although Resnick did not attend the dance, on Monday, Resnick was informed by either Mercado or Dean Sandra Calderon that plaintiff showed up at the dance drunk. Resnick Dep. 9-10. Resnick also learned that a student ("Student A") had complained that plaintiff had asked her to dance and then took pictures of her. Id. at 10. Resnick had one of his employees report the incident to the Special Commissioner of Investigation for the New York City School District ("SCI"). Id. SCI, which operates independently of the DOE, is responsible for investigating corruption, conflicts of interest, unethical conduct, and other misconduct in the New York City school system. See Bd. of Ed. of the City of New York v. Hershkowitz, 308 A.D.2d 334, 337-38 (1st Dep't 2003) (explaining background of SCI), appeal dismissed, 2 N.Y.3d 759 (2004); SCI -- NYC, ("SCI . . . operates independently of the Chancellor and the Department of Education.") (last visited Dec. 12, 2011).

Within a few days of the dance, Student A, Calderon, and Michael Harmon, a school aide, all submitted written statements. Calderon's statement indicates that at the dance she observed plaintiff "stumbling across the lobby." Pl.'s Ex. 16; see also Resnick Dep. 81. Harmon reported that during the dance students came up to him and told him that plaintiff was drunk. Defs.' Ex. K. When Harmon spoke to plaintiff at the dance, he noticed a strong smell of alcohol on plaintiff's breath. Id. Student A's statement confirmed that plaintiff had "tried to dance with [her]." Defs.' Ex. J. After she told plaintiff that she did not want to dance with him, he said, "come on [Student A] let's dance." Id. When she walked away, plaintiff followed her and took pictures of her. Id.; see also Resnick Dep. 68. This made her "feel very uncomfortable." Defs.' Ex. J.

On March 24, 2005, Santiago Taveras, the Superintendent responsible for HSGCA, sought to remove plaintiff from HSGCA and to have him reassigned to a regional office after SCI investigators informed Taveras that they had substantiated the allegations against plaintiff. Pl.'s Ex. 19 (e-mail from Taveras to Resnick and other school officials). As discussed infra, SCI would eventually issue a formal report on June 15, 2005. Pl.'s Ex. 22. Plaintiff appears to have been reassigned on March 28, 2005. See Defs.' Reply Ex. D; Gray Dep. 16.

On May 6, 2005, plaintiff's attorney sent a letter to an SCI investigator asserting, inter alia, that plaintiff had a claim of "racially discriminatory treatment." Pl.'s Ex. 21. Plaintiff's attorney requested that a copy of the letter be placed in "the case file." Id.

On June 15, 2005, SCI issued a report summarizing its investigation into the March 18, 2005, dance. Pl.'s Ex. 22. During the investigation, SCI either interviewed or received statements from Mercado, Calderon, Harmon, and Student A. Id. Those witnesses confirmed the accounts that had been previously provided to Resnick. Id. Notably, Mercado reported that plaintiff appeared to have been under the influence of alcohol at the dance and that he had smelled alcohol on plaintiff's breath. Id. at 2. When Mercado confronted plaintiff at the dance, he admitted that he had been drinking, but maintained that he was not intoxicated. Id. After Mercado instructed plaintiff to leave, plaintiff did so, but returned to the school building about ten minutes later. Id. After Mercado again ordered him to go home, plaintiff complied. Id.

When investigators interviewed plaintiff, he admitted that, after the school day had ended, he went to a bar/restaurant near the school and had food, a beer, and "a couple" of margaritas.*fn7 Id. at 3. Plaintiff left the restaurant around 9:00 p.m. and came to the school dance in order to take pictures for the school newspaper. Id.; see also Gray Aff. ¶ 17 (stating that the teacher in charge of the school newspaper asked him to take pictures of the dance). Plaintiff maintained that he was not intoxicated at the time. Pl.'s Ex. 22 at 3. Plaintiff admitted taking pictures at the dance, but could not recall asking Student A to dance or taking pictures of her. Id.; see also Gray Dep. 61-62. At some point during the dance, plaintiff gave his camera to another student ("Student B"). Pl.'s Ex. 22 at 3. Student B informed investigators that plaintiff deleted some pictures from the camera in order to free up memory. Id. When investigators reviewed the pictures from the camera, they discovered three photos of Student A on the camera, none of which were inappropriate. Id.

The SCI report only summarized the results of the investigation and did not contain any disciplinary recommendations.

On June 16, 2005, Theresa Europe, a lawyer for the DOE, forwarded the SCI report to Resnick. Pl.'s Ex. 23; Resnick Dep. 52. Europe recommended that, if Resnick believed plaintiff was intoxicated, he should offer plaintiff the opportunity to settle the matter by admitting that he acted inappropriately and paying a monetary fine. Pl.'s Ex. 23. Europe believed that no further action would be necessary if plaintiff accepted this offer. Id. If plaintiff refused the offer, Europe recommended that plaintiff be given a strong letter of reprimand advising him that this misconduct may lead to further disciplinary action, including an unsatisfactory rating and termination. Id. Resnick never presented plaintiff with Europe's suggested settlement offer. Resnick Dep. 51-52, 79.

After meeting with plaintiff on June 21, 2005, Resnick issued plaintiff a letter on June 27, 2005, indicating that plaintiff's misconduct at the dance was "inappropriate and inexcusable," and could lead to an unsatisfactory rating and termination. Pl.'s Exs. 24, 26. In addition to reviewing the SCI report, Resnick also conducted his own investigation into the matter, interviewing Mercado, Calderon, Harmon, and Student A. Resnick Dep. 16. According to the letter, Resnick's investigation revealed that plaintiff was intoxicated, asked Student A to dance, and then followed her onto the dance floor and took pictures of her. Pl.'s Ex. 26; see also Resnick Dep. 18 (discussing Student A's account to him).

Resnick's June 27 letter also states that, during his meeting with plaintiff, plaintiff denied that he was intoxicated and insisted that he only had two drinks. Pl.'s Ex. 26; see also Resnick Dep. 20, 55; Gray Dep. 51. Plaintiff also denied asking Student A to dance. Pl.'s Ex. 26; Gray Dep. 51-52; see also Gray Aff. ¶ 18. Plaintiff, however, did admit that Mercado told him that he smelled of alcohol. Pl.'s Ex. 26. The Court notes that plaintiff's deposition testimony regarding his conversation with Resnick largely tracks the account of the events memorialized in the June 27 letter.*fn8 Gray Dep. 50-52; see also Gray Aff. ¶ 17-18.

On June 29, Resnick completed plaintiff's annual review and gave plaintiff an unsatisfactory rating. Pl.'s Ex. 25. In justifying that rating, Resnick cited to the two corporal punishment incidents as well as the SCI report and his own investigation into plaintiff's conduct at the March 18 dance. Id.; Resnick Dep. 8-9, 54.

On August 9, 2005, Taveras affirmed Resnick's recommendation to terminate plaintiff's probationary employment.*fn9 Pl.'s Ex. 27; Resnick Dep. 8, 80. According to plaintiff's complaint, plaintiff appealed Taveras' decision and a review hearing was held. Second Am. Compl. ¶¶ 9(s),

(x). At the hearing, the DOE relied on Resnick's testimony and the documentary evidence in plaintiff's file. Id. Based on that evidence, Deputy Chancellor Carmen Farina affirmed Taveras' decision. Id. ΒΆ 9(s). Plaintiff's unsatisfactory rating also resulted in him being placed on an ...

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