The opinion of the court was delivered by: J. Paul Oetken, District Judge:
Plaintiff Steve Dressler initiated this action in the Supreme Court of the State of New York, County of New York, with a complaint dated March 22, 2010. (Notice of Removal (Dkt. No. 1) ¶ 1.) Named defendants Department of Education of the City of New York and the City of New York removed the action to this Court on May 7, 2010. (Notice of Removal.) On August 16, 2010, both of those defendants were terminated and replaced, in an amended complaint, by the single Defendant, New York City Department of Education ("Defendant" or "DOE"). (Amended Complaint (Dkt. No. 10) ("Compl.").)
Plaintiff's amended complaint alleges that Defendant (1) discriminated against Plaintiff based on his age in violation of 42 U.S.C. § 1983, the Age Discrimination in Employment Act of 1962 ("ADEA"), the New York Human Rights Law ("NYHRL"), and the New York City Human Rights Law ("NYCHRL"); (2) retaliated against Plaintiff "for engaging in the protected activity of complaining of harassment based on his age and illness in taking medical leave" and discriminated against him "because of his age and illness in taking a medical leave, in that he was subject to a hostile work environment" in violation of 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964 ("Title VII"), the NYHRL, and the NYCHRL; and (3) retaliated against Plaintiff in violation of the Family Medical Leave Act ("FMLA"). (Compl. ¶¶ 48-63.)
DOE filed the instant motion for summary judgment on July 22, 2011. (Def.'s Mot. (Dkt. No. 27).) This suit was reassigned to the undersigned on October 6, 2011. (Dkt. No. 34.) For the reasons stated below, Defendant's motion for summary judgment is granted in part and denied in part.
Unless otherwise indicated, the following facts are undisputed. Plaintiff is a teacher employed by DOE. (Compl. ¶¶ 8-10; Answer to the Amended Complaint (Dkt. No. 13) ("Ans.") ¶ 8).) He was over forty years old at all times relevant to the complaint. (See Compl. ¶ 8; Ans. ¶ 8.) After teaching at various schools, Plaintiff was assigned in September 2006 to work at A. Philip Randolph High School ("Randolph") at 443 West 135th St., New York, New York 10031. (Transcript of Plaintiff's Deposition (Dkt. No. 30-2, also available at Dkt. No. 35-1) ("Pl. Tr.") at 25:23-26:2; Ans. ¶ 2.) At Randolph, Plaintiff worked as an Absent Teacher Reserve ("ATR"), filling in for absent teachers on an as-needed basis. (Pl. Tr. at 26:3-11.) Plaintiff was first supervised at Randolph by the school's Assistant Principal of Organization, Mr. Menegatos. (Transcript of Henry Rubio Deposition (Dkt. No. 30-3, also available at Dkt. No. 35-1 at 76-77) ("Rubio Tr.") at 129:10-16.) Henry Rubio became principal of Randolph in November 2006. (Id. at 14:9-20.) During the 2006-2007 school year, although Plaintiff's teaching as an ATR was not formally observed by supervisors, his performance received a satisfactory rating. (Pl. Tr. at 27:1-14.)
During the 2007-2008 school year, Plaintiff continued working as an ATR at Randolph. (Id. at 28:14-19.) In March 2008, Plaintiff began teaching the math classes of a teacher who had abruptly resigned. (Id. at 28:20-29:7.) Plaintiff was then supervised by Rosalie David, who served as Randolph's Assistant Principal for Mathematics from the Spring of 1992 until October 2010. (Transcript of Rosalie David Deposition (Dkt. No. 30-4) ("David Tr.") at 10:12-11:16.)
About one week after Plaintiff took over the math classes in March 2008, he began a leave of absence from Randolph pursuant to the FMLA with a diagnosis of general anxiety disorder; this leave lasted through June 2008. (Pl. Tr. at 29:7-24, 48:3-50:16.) Plaintiff received an approval of his leave dated August 21, 2008. (DOE FMLA Approval (Dkt. No. 35-1 at 71).) Plaintiff has stated that he took the leave because he found it "very overwhelming with the kids" and because David had said to him "in a very harsh, angry tone, I want to see teaching." (Pl. Tr. at 29:10-16.) While on leave and after returning to work, Plaintiff continued to receive his salary and benefits and suffered no diminution in any aspect of his job. (Id. at 65:2-20.)
For the 2007-2008 school year, Principal Rubio gave Plaintiff an unsatisfactory ("U") rating due to excessive absences. (Id. at 53:20-54:13.) Plaintiff learned of this U rating in August 2008. (Id. at 53:20-23.) Sometime between September and December 2008, Plaintiff provided Rubio with documentation of the approval of the leave he had taken. (Id. at 55:11-15.)*fn1
In January 2009, Rubio reversed Plaintiff's U rating and, in February or March, provided Plaintiff a letter apologizing for the administrative error. (Id. at 55:2-21, 63:12-15.)
For the 2008-2009 school year, Plaintiff again worked at Randolph, covering various classes. (Id. at 54:17-23.) Plaintiff's job performance was rated satisfactory for that school year. (Dkt. No. 29-1.)
Plaintiff continued working as an ATR during the 2009-2010 school year but was specifically assigned to teach a number of math courses. (Pl. Tr.at 137:21-24; Rubio Tr. at 130:10-20.) For the first time since beginning work at Randolph, Plaintiff's teaching was observed by a supervisor, Assistant Principal David. (Pl. Tr. at 43:7-20; observation records, Dkt. Nos. 29-2, 29-3, 29-4, 29-5, 29-6, 29-7, 29-8.) On October 15, 2009, David conducted a "walk-through" of one of Plaintiff's classes and noted that Plaintiff "needed questioning techniques help" and had "no routines." (October 15, 2009 Observation Report (Dkt. No. 29-2).) David referred Plaintiff to a teacher mentoring program at City College. (Pl. Tr. at 111:15-21; David Tr. at 113:3-114:3.) However, Plaintiff was ineligible to remain in the program because he was an ATR. (Pl. Tr. at 113:5-14.) An observer from the City College program did visit a number of Plaintiff's class sessions. (Id. at 112:7-11.) Plaintiff asserts that the observer gave him "pointers" but "was generally satisfied with what she saw." (Id. at 112:11-12.) He further asserts that the observer advised him, "if you're having difficulties with your present supervisor, see if you can find another school, another place to work." (Id. at 112:13-16.)
Assistant Principal David observed another of Plaintiff's lessons on November 17, 2009, and found it unsatisfactory. (November 17, 2009 Observation Report (Dkt. No. 29-3).) She noted, among other things, "little evidence of established routines," "a poorly planned lesson," incorrect student work left uncorrected on the board, poor questioning techniques, and insufficient in-class review of homework. (Id.) David instructed Plaintiff to observe classes of two other teachers and to read portions of two pedagogical textbooks. (Id. at 6.) David concluded her observation with a promise to "continue to work with you to help you improve your pedagogue [sic]." (Id.) Plaintiff asserts that, in fact, David repeatedly refused to help him improve. (Pl. Tr. at 111:10-12, 135:25-36:1, 191:6-9.) He also asserts that the observation occurred on November 18, 2009. (Id. at 87:23-25.)
David further observed Plaintiff's teaching on February 25, 2010; March 25, 2010; April 19, 2010; and May 7, 2010. (Observation records, Dkt. Nos. 29-4, 29-5, 29-6, 29-7.) On each of these occasions, David noted deficiencies similar to those noted on November 17 or 18, 2009, and recommended ways for Plaintiff to improve. (Dkt. Nos. 29-4, 29-5, 29-6, 29-7.) Plaintiff complained to Principal Rubio that David's comments from at least one of her observations were unfair and inaccurate. (Rubio Tr. at 128:2-12.) Plaintiff also asserts that David's February 4, 2009, observation improperly came six weeks after the required pre-observation meeting. (Pl. Tr. at 148:11-25.)
Plaintiff disputes the accuracy of David's criticisms of his teaching. Specifically, he disputes that he had no routines, asserting that in fact he followed the routine of "a Do Now, an aim, . . . follow[ing] through with model problems, [and] . . . hav[ing] kids come to the board . . . ." (Id. at 92:15-19; see also id. at 142:14-18.) He disputes that he was easily distracted. (Id. at 96:6-8.) He disputes that he "did not ask questions that assess the students' work, to see if they understand the concepts taught that day"; he asserts that in fact he did "ask summary questions." (Id. at 100:11-13, 101:10.) He disputes that he and David "agreed that the next time [she would] observe, the number of students arriving late [would] be no more than six"; he asserts, "I recall that I had made a notation that I never agreed to that." (Id. at 106:11-13, 16-17.) He disputes that he did not have charge of his class. (Id. at 118:4-6.) He disputes that he "tended to keep calling on the same students in the room"; he asserts that in fact he "would call all students." (Id. at 167:17-23.) He disputes that "the vast majority of my questions is procedural." (Id. at 169:22-24.)
Plaintiff notes a number of times when he asserts that David harshly criticized his work performance and/or screamed at him about it. (Id. at 52:2-8, 114:17-115:14.)
On June 8, 2010, David and Principal Rubio together observed Plaintiff's teaching and found it unsatisfactory for reasons similar to those noted in previous observation evaluations. (June 8, 2010 Observation Report (Dkt. No. 29-8).) David and Rubio made recommendations for Plaintiff's improvement. (Id.)
Rubio gave Plaintiff a year-end performance rating of unsatisfactory. (2009-2010 Annual Professional Performance Review (Dkt. No. 29-9).) In particular, Rubio noted that Plaintiff's performance was unsatisfactory as to "[p]lanning and preparation of work," "[s]kill in adapting instruction to individual needs and capacities," "[e]ffective use of appropriate methods and techniques," and "[e]xtent of pupil participation in the class and school program." (Id.) This U rating disqualified Plaintiff from participating in the "Per Session Home Instruction Employment" program. (Memorandum from Office of Per Session Home Instruction (Dkt. No. 35-1 at 79).) Plaintiff had taken part in that program in prior years, earning "an average maybe of 2 to 4,000 a year." (Pl. Tr. at 186:18-25.)
Plaintiff asserts that other teachers near his age were also treated harshly at Randolph. Specifically, he states, "I noticed that . . . senior teachers were having difficulty in the school." (Id. at 74:24-75:1.) He lists teachers he observed having difficulty: Mr. Armetta who was sent to the "rubber room" (a facility for DOE teachers removed from classrooms*fn2 ); Mr. Heartly who "had to leave the school and file a lawsuit of age"; Miss Stenna, a junior teacher; Mr. Self, a senior teacher; and Miss Anderson, a senior teacher. (Pl. Tr. at 75:2-14.) Of these teachers, Plaintiff states, "they were my age." (Id. at 75:22.)
Plaintiff has acknowledged that Assistant Principal David deemed the performance of at least two other Randolph teachers, both young and newly hired, to be unsatisfactory. (Id. at 47:7-25, 52:19-53:3, 77:12-24; see also David Tr. at 25:10-26:11.) Another math teacher, younger than Plaintiff and also under David's supervision, received a U rating for his performance in the 2009-2010 academic year. (Gregory Apostle 2009-2010 Annual Professional Performance Review (Dkt. No. 29-10); see also Pl. Tr. at 71:4-5.) In evaluations of other teachers, David and Rubio made similar notes and critiques as in evaluations of Plaintiff's teaching. (David Tr. at 146:19-147:17; Dkt. No. 29-11.)
Plaintiff asserts that some younger teachers were provided with textbooks for their classes earlier than was Plaintiff, and that Plaintiff never received textbooks for one of his classes. (Pl. Tr. at 101:22-25, 128:4-21, 183:21-184:6.) He also asserts that some younger teachers were provided with superior equipment such as electronic "smart boards." (Id. at 71:5-13.) Plaintiff further asserts that when he observed other teachers' lessons as instructed by David, those teachers did some of the same things for which he had been criticized. (Id. at 71:15-20, 75:22-76:16, 132:22-133:4.) According to Plaintiff, his students were not adequately prepared for the math classes he was assigned to teach. (Id. at 127:18-128:1, 130:9-131:8.) He asserts that when he raised that concern with David, she was unresponsive, though she had offered verbal support to another teacher relating to a similar concern. (Id. at130:9-131:8.)
Appended to the amended complaint are Plaintiff's demand to the City of New York, marked received on February 11, 2010; his EEOC charge, dated March 30, 2010; and his right-to-sue letter from the EEOC, dated May 20, 2010. (Dkt. No. 30-1 at 13-20.)
II. Standard for Summary Judgment
Summary judgment is appropriate in a case where the evidence, viewed in the light most favorable to the non-moving party, demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Vacold, L.L.C. v. Cerami, 545 F.3d 114, 121 (2d Cir. 2008).
The moving party bears the burden of showing that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 321-23 (1986). A fact is "material" only if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For there to be a "genuine" dispute about the fact, the evidence must be such "that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether there is a genuine issue of material fact, the Court must resolve all ambiguities and draw all permissible inferences in favor of the non-moving party. Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). Where there is no "evidence in the record from which a reasonable inference could be drawn in favor of the non-moving party on a material issue of fact," summary judgment is proper. Catlin v. Sobol, 93 F.3d 1112, 1116 (2d Cir. 1996).
The non-moving party can defeat summary judgment by presenting evidence sufficient to create a genuine issue of material fact, though "[m]ere speculation and conjecture [are] insufficient to preclude the granting of the motion." Harlen Assocs. v. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). The Second Circuit has "repeatedly noted that 'summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated.'" Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989) (citations omitted); see also Gladwin v. Pozzi, 403 F. App'x 603, 604 (2d Cir. 2010) (Courts "should exercise caution in deciding to grant summary judgment in [an employment discrimination] case where the employer's intent is at issue.").
The discussion below addresses, in turn, Plaintiff's claims of age discrimination, retaliation for opposition to age discrimination, hostile work environment, and FMLA retaliation; finally, the discussion addresses Plaintiff's claims brought under 42 U.S.C. § 1983 (other than for hostile work environment) because they are all disposed of for the same reason.
The ADEA prohibits employers from discriminating in hiring, discharge, or the setting of "compensation, terms, conditions, or privileges of employment" based upon the age of an employee. 29 U.S.C. § 623(a)(1); see also Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993). The ADEA covers the class of individuals who are over the age of 40, 29 U.S.C. § 631(a), and the evidentiary framework for proving age discrimination under the statute is the same as that for proving discrimination under Title VII. See Hollander v. Am. Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999); Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997). Thus, a disparate treatment case like this one calls for the three-step, burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981).
First, the plaintiff must establish a prima facie case of discrimination. The burden then shifts to the employer to rebut the prima facie case by providing a legitimate, non-discriminatory reason for its actions. The plaintiff then has the opportunity to show that the reason offered by the employer was not its true reason, and that age was.
Hollander, 172 F.3d at 199. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253 (citations omitted). But to preclude summary judgment, the plaintiff need not prove that the proffered reasons were pretextual; rather, he need only (1) adduce evidence from which a reasonable fact-finder could directly infer that the discriminatory intent more likely motivated the employer than the proffered reason, or (2) show that the proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256; see also Weiss v. JPMorgan Chase & Co., 332 F. App'x 659, 661 (2d Cir. 2009).
A prima facie case of age discrimination under the ADEA requires showing (1) that the plaintiff was within the protected age group, (2) that he was qualified for the position held, (3) that he experienced adverse employment action, and (4) that such action occurred under circumstances giving rise to an inference of age discrimination. Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010).
Here, Plaintiff was over forty years old at all times relevant to the complaint. (See Compl. ¶ 8; Ans. ¶ 8.) DOE does not argue otherwise. Nor does DOE argue that Plaintiff was not qualified to be a teacher, a job he has held since approximately 1985. (Pl. Tr. at 16:4-6.) However, DOE does argue that Plaintiff fails to ...