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Charles R. Self, Oreoluwa Salau, Joyce Stena, Glenn Peterkin, and v. Department of Education of the City of New York

February 14, 2012


The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.


Plaintiffs Oreoluwa Salau and Joyce Stena assert race and age discrimination claims against the New York City Department of Education ("DOE"); Henry Rubio, Principal of Randolph High School; and Rosalie David, Assistant Principal of Randolph High School. Salau and Stena advance claims pursuant to 42 U.S.C. § 1981, the New York City Human Rights Law, and the New York State Human Rights Law. Stena also advances a Title VII discrimination claim pursuant to 42 U.S.C. § 2000e.

Defendants now move for summary judgment in their favor. Because most of the defendants' challenged acts are not materially adverse to them, and because Salau and Stena have failed to present evidence that a jury could use to find that any of the acts that were in fact materially adverse were a pretext for discrimination, the Court grants summary judgment to defendants.


A. The parties

Salau, a black woman, has been a science teacher in New York City since 1996. (Amended Complaint dated Aug. 26, 2009 ("Compl.") ¶¶ 19, 22; Defs.' Local Civil Rule 56.1 Statement of Undisputed Facts ("Defs.' 56.1") ¶ 4.) From 2001 to 2008, Salau taught at Randolph High School. Stena, also a black woman, has been a teacher at Randolph High School for the past nine years. (Compl. ¶¶ 37, 40; Defs.' 56.1 ¶¶ 69-70.)

Rubio has been the Principal of Randolph High School since November 2006. David served as a Randolph High School Assistant Principal from 1992 until 2009, when she retired. (Defs.' 56.1 ¶¶ 6-7; Pls.' Local Civil Rule 56.1 Statement of Undisputed Facts ("Pls.' 56.1") ¶¶ 6-7.) The DOE employed both plaintiffs during the period relevant to this lawsuit.

B. Salau receives reprimand and discipline

In January 2007, the parent of one of Salau's students filed a report with the DOE's Office of Special Investigations, alleging that Salau had "verbally harassed her child." (Defs.' 56.1 ¶ 13; Pls.' 56.1 ¶ 13.) Gerald Menengatos, an assistant principal, investigated the complaint. Based on Menengatos's findings, Rubio informed Salau by letter that the administration had "substantiated a complaint of verbal abuse" against her. (Defs.' 56.1 ¶ 15; Pls.' 56.1 ¶ 15.) Rubio sent an additional letter on January 25, 2007, summarizing a meeting between Rubio, Salau, and Salau's union representative. In that letter, Rubio stated that the investigation concluded that Salau "used language that tends to belittle or subject students to ridicule." (Defs.' 56.1 ¶ 18; Pls.' ¶ 18.)

That same month, Salau also received criticism of her teaching performance. David observed Salau's classroom performance and concluded that Salau's lesson rated "unsatisfactory." (Defs.' 56.1 ¶¶ 19-20; Pls.' 56.1 ¶¶ 19-20.) Barbara Poseluzny, another assistant principal, reached the same conclusion about a class Salau taught two months later. (Defs.' 56.1 ¶¶ 21-22; Pls.' 56.1 ¶¶ 21-22.) Concerned about the several ratings of "unsatisfactory," plus the substantiated finding of verbal abuse, Rubio called Salau into his office on April 13 to discuss her performance. Salau did not appear for the meeting, nor did she appear for subsequently scheduled meetings with the principal on April 16, 27, or 30. (May 17, 2007 Letter from Rubio to Salau, Ex. I to Decl. of Issac Klepfish dated March 11, 2011.) Rubio wrote Salau on May 17, 2007 to inform her that her conduct "constitute[d] insubordination." (Id.)

One week after Rubio informed Salau of her insubordination, both Rubio and Poseluzny observed one of Salau's lessons and both concluded that the lesson rated "unsatisfactory." (Defs.' 56.1 ¶¶ 23-24; Pls.' 56.1 ¶¶ 23-24.) Finally, Sheldon Young, a representative from the Office of the Instructional Superintendent of the DOE, observed one of Salau's May 25, 2007 classes. (Defs.' 56.1 ¶ 27; Pls.' 56.1 ¶ 27.) He, too, concluded that the lesson rated "unsatisfactory." (Defs.' 56.1 ¶ 28; Pls.' 56.1 ¶ 28.)

Not surprisingly, at the end of the 2006-2007 school year Rubio rated Salau "unsatisfactory" on her Annual Professional Performance Review and Report. (Defs.' 56.1 ¶ 29; Pls.' 56.1 ¶ 29.) The principal indicated that this assessment reflected, among other things, Salau's unsatisfactory "[a]ttendance and punctuality," "[p]rofessional attitude and professional growth," and "[a]ttention to pupil health, safety and general welfare." (Salau's 2006-2007 Performance Evaluation, Ex. K to Klepfish Decl.)

In the fall of the next school year, a student reported that Salau "grabbed [his] arm, twisted it, and pointed [her] finger within inches of his face." (Defs.' 56.1 ¶ 31; Pls.' 56.1 ¶ 31.) Assistant Principal Menengatos again investigated the accusation and notified Salau by letter dated November 2, 2007 that he had substantiated the student's allegation. (Defs.' 56.1 ¶ 31; Pls.' 56.1

¶ 31.) Although the DOE subsequently assigned Salau to an empty classroom at Randolph High School, (see Salau Decl. ¶ 14; Defs.' 56.1 ¶ 32), she had resumed teaching by the spring of 2008. On April 18, after returning to duty, a student alleged that Salau "smacked her on the forehead and pulled her hair." (Defs.' 56.1 ¶ 34; Pls.' 56.1 ¶ 34.) Administrators again reassigned Salau to a different classroom "until further notice." (Defs.' 56.1 ¶ 35; Pls.' 56.1 ¶ 35; Ex. N to Klepfish Decl.) Glenn Raysor, the assistant principal who had investigated the accusation, "substantiated [the] allegation that she had committed corporal punishment" and informed Salau of his determination. (Defs.' 56.1 ¶ 37; Pls.' 56.1 ¶ 37.)

The following fall-the fall of 2008-the DOE brought charges against Salau pursuant to New York Education Law § 3020-a and suspended her, with pay, pending a hearing. (Defs.' 56.1 ¶¶ 40-41; Pls.' 56.1 ¶¶ 40-41.) The DOE sought Salau's dismissal on the basis of the several substantiated charges of "corporal punishment, verbal abuse, insubordination and misconduct" during the 2006-2007 and 2007-2008 school years set forth above. (Defs.' 56.1 ¶ 39; Pls.' 56.1 ¶ 39.)

The parties arbitrated the allegations over the course of a four-day hearing in December 2009. Although the arbitrator ultimately determined that the DOE did not have admissible evidence to sustain certain of the charges, (Arbitrator's Opinion and Award dated July 23, 2010, Ex. U to Klepfish Decl.), she did, however, sustain three charges, including insubordination, and concluded that Salau had made inappropriate comments to her students. The arbitrator fined Salau $3,000 and ordered her to attend a course on classroom management. (Id. at 16.)

Salau challenged this award pursuant to Article 75 and Article 78 of the New York Civil Practice Law and Rules. (Def. 56.1 ¶¶ 55-56; Pls.' 56.1 ¶¶ 55-56.) The New York State Supreme Court rejected the challenge and confirmed the award. (In re Salau v. N.Y.C. Dep't of Educ., Index No. 110908/10 (Dec. 20, 2010 Sup. Ct. N.Y. 2010), Ex. V to Klepfish Decl.)

C. Stena is excessed

In preparation for the 2007-2008 school year, Rubio and the assistant principals restructured the school curriculum. As part of that restructuring, most sophomores took Earth Science instead of Chemistry. (Defs.' 56.1 ¶ 90; Pls.' 56.1 ¶ 90.) This resulted in an increase in student enrollment in Earth Science and a decrease in enrollment in Chemistry, which became an elective upper-level course. Consequently, the number of Chemistry teaching positions at Randolph High School decreased from four to one. (Defs.' 56.1 ¶¶ 83, 91-94; Pls.' 56.1 ¶¶ 83, 91-94.) Union rules required that the teacher with the most seniority receive the sole Chemistry slot. Accordingly, Rubio assigned the single Chemistry position to the most senior teacher, Daniel Davidson, who had seventeen years' experience compared to Stena's six. (Defs.' 56.1 ¶¶ 85, 95; Pls.' 56.1 ¶¶ 85, 95.)

As a result of the reduction in Chemistry positions, Stena had no Chemistry courses to teach during the 2007-2008 school year. On August 30, 2007, shortly before school started for the year, Rubio informed Stena that she had "been placed in excess." (Defs.' 56.1 ¶ 98; Pls.' 56.1 ¶ 98.) As an excessed teacher, Stena retained the same salary as she had received as an active teacher, but she did not have a class of her own. Instead, she covered classes for absent teachers. (Defs.' 56.1 ¶ 99; Pls.' 56.1 ¶ 99.) However, Davidson later retired and Stena became a full-time Chemistry teacher once again for the 2009-2010 school year. (Defs.' 56.1 ¶¶ 101-102; Pls.' 56.1 ¶¶ 101-102.)

D. Salau and Stena's evidence of discrimination

Salau and Stena provide the following evidence of discrimination submitted in opposition to the DOE's summary judgment motion.

1.Allegedly racial comments  In November 2007, while discussing a dispute between a Hispanic student and a black student, Principal Rubio allegedly told Juan Medina, a former Randolph High School guidance counselor, that, '"Those people are not like us"' and '"African-Americans are hard to deal with."' (Decl. of Juan Medina dated March 28, 2011 ¶ 2.)  Assistant Principal Rosalie David allegedly said, upon swapping Salau's Earth Science class for an Ecology class, "maybe this will make you a better teacher. I think you said you have a PhD." (Decl. of Oreoluwa Salau dated May 27, 2011 ¶ 4.) David also allegedly accused Salau and Tetteh, another black teacher, of "rambling." (Salau Decl. ¶ 17.)  Salau admits that "Rubio never made any comment which would indicate any anti- Nigerian or Black bias or animus." (Defs.' 56.1 ¶ 57; ...

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