The opinion of the court was delivered by: Glasser, United States District Judge:
Plaintiff Casey Phillip ("plaintiff" or "Phillip"), a former teacher with the New York City Department of Education ("DOE"), filed this action against the City of New York ("NYC"), the DOE, and former supervisors, Principal Daysi Garcia and Local Instructional Superintendent, Martha Rodriguez-Torres, in their individual capacities (collectively, "defendants"). Plaintiff alleges that, based on his race or national origin as a Black man of Caribbean descent and Antiguan citizenship, defendants subjected him to discrimination, a hostile work environment, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 200e, et seq. ("Title VII"); the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("Section 1981"); the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296, et seq. (McKinney 2010); and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-502. Before the Court is the defendants' Motion for Summary Judgment. For the following reasons, defendants' motion is granted in part and denied in part.
The following facts are undisputed, unless otherwise noted. From 2003 to 2007, plaintiff was employed as a teacher at Public School 65 ("P.S. 65") in Brooklyn, New York. Defendants' Local Rule 56.1 Statement ("Defs.' R. 56.1") ¶¶ 3-5. Plaintiff self-identifies as Black, of Caribbean descent, and is a citizen of Antigua. Id. ¶ 2. Daysi Garcia ("Principal Garcia") was appointed Principal of P.S. 65 in August, 2004. Id. ¶ 6. Principal Garcia self-identifies as Hispanic of Caribbean (Dominican) descent. Id. ¶ 7. Superintendent Martha Rodriguez-Torres ("Superintendent Rodriguez-Torres") self-identifies as Hispanic. Declaration of Jane E. Andersen dated July 21, 2010 ("Andersen Decl."), Ex. V, at 10.
I.Plaintiff's Alleged Discrimination and Hostile Work Environment
Plaintiff alleges that beginning in November 2004 and for several years thereafter, defendants discriminated against him on the basis of his race, color, and national origin, creating a hostile work environment, and then retaliated against him when he complained of this discrimination. In support of his claims, plaintiff alleges the following acts.
In November, 2004, Principal Garcia visited plaintiff's classroom and observed him teaching. During the observation, Principal Garcia positioned her chair so that she had her back to him, facing the children. Am. Compl. ¶ 17; Defs.' R. 56.1 ¶¶ 107-108. Plaintiff alleges that in his ten years of teaching, no observer ever sat with their back to him and that non-Black and non-Caribbean colleagues told him Principal Garcia did not sit this way during their observations. Am. Compl. ¶ 17.
In the fall of 2004, a parent complained to Principal Garcia about comments plaintiff made to his students. Id. ¶ 18. Plaintiff alleges that Principal Garcia failed to follow protocol when she did not call him into her office immediately, to give him an opportunity to respond to the parent's complaint. Id. Plaintiff alleges that, in contrast, "she did follow protocol in handling complaints about his non-Black, non-Caribbean colleagues." Id.
Plaintiff alleges that on June 28, 2005-the last day of the school year-Principal Garcia made a "racist comment" when she told plaintiff, "When you return in September, I'll be a slave driver." Id. ¶ 20.
Plaintiff was formally observed by Principal Garcia twice during the school year: a Literacy class on October 21, 2004 and a Math class on February 18, 2005. Andersen Decl. Ex. E & F. Both times, Garcia ranked plaintiff "satisfactory." Id. Plaintiff also received an overall rating of "satisfactory" from Principal Garcia on his 2004-2005 annual professional performance review. Affirmation of Anthony Ofodile dated October 26, 2010 ("Ofodile Aff."), Ex. 1.
Plaintiff alleges that in October or November of 2005, Principal Garcia treated him and another Black, Caribbean teacher, Lucienne Mohammed ("Ms. Mohammed"), differently from two Hispanic teachers. Plaintiff alleges that Principal Garcia gave the Black, Caribbean teachers only one weekend to prepare a lesson plan and required them to adhere to a ten-page guideline document while the Hispanic teachers were given two weeks to prepare and were not given the ten-page document. Am. Compl. ¶ 21 Plaintiff alleges that in the spring of 2006, Principal Garcia also discriminated between him and three female teachers, two of whom were White and one of whom was Hispanic. Id. ¶ 22. All four teachers were studying to be school administrators and performed internships under Garcia's mentorship to fulfill certain skill requirements, known as "competencies." Id. Plaintiff alleges that Principal Garcia attempted to rescind her agreement to mentor him but did not rescind her agreement with the other three teachers. Id. Plaintiff also alleges that during the internship Garcia discriminated against him by assigning him "duties that had nothing to do with the requirements of his internship and that were actually the duties of an aide, not a teacher or an administrator." Id. In contrast, the three female teachers were given tasks "that allowed them to actually meet the requirements of their internships." Id. Consequently, plaintiff alleges he was forced to seek mentoring from Assistant Principal Yvette Mendez ("AP Mendez") instead. Id. ¶ 23.
Plaintiff alleges that on March 2, 2006 and then several times thereafter, Principal Garcia "beckoned to Plaintiff with a demeaning hand gesture," using her index and middle finger, rather than calling him by his name. Id. ¶ 24. Similarly, plaintiff alleges that Garcia embarrassed him one day when she inserted "her index finger into her open mouth" as though vomiting when plaintiff sang off-key while leading students in the national anthem. Id. ¶ 32. Plaintiff alleges she did not make these kinds of gestures to his non-Black, non-Caribbean colleagues. Id. ¶¶ 24, 32.
Plaintiff was formally observed by AP Mendez twice during the 2005-2006 school year: a Math class on February 13, 2006 and a Science class on April 11, 2006. Andersen Decl. Ex. H & I. AP Mendez ranked plaintiff "satisfactory." Id. Principal Garcia gave plaintiff an overall rating of "satisfactory" on his 2005-2006 annual professional performance review. Id. Ex. J.
In September 2006, plaintiff obtained tenure. Id. Ex. XX. Plaintiff alleges that during the 2006-2007 school year, Principal Garcia discriminated between him and a White teacher, James Caulfield ("Caulfield"), in the assignment of students. Am. Compl.
¶ 25. Plaintiff alleges that Caulfield was given a class of 14-16 fourth grade students, many with behavior and learning problems, and a teaching assistant two full days per week. Id. In contrast, when those students advanced to plaintiff's fifth grade class, he was assigned 25 students with behavior and learning problems and was not given a teaching assistant, despite requests for one by plaintiff, AP Mendez, and plaintiff's union representative. Id.; Ofodile Aff. Ex. 31, at 147-57.
On October 24, 2006, Principal Garcia met with plaintiff and his union representative, Alan Weinstein, to discuss an occasion when plaintiff left students unsupervised. Andersen Decl. Ex. W. Plaintiff denies he left the students unsupervised. Am. Compl. ¶ 26. Plaintiff alleges that "Garcia was trying to sabotage Plaintiff's career and did not try to reprimand non-Black, non-Caribbean teachers who had actually left their students unsupervised." Id.
On November 7, 2006, plaintiff attended a Staff Development Day. Id. ¶
27. During one training session utilizing the book The Cay,*fn1
Ilene Brodsky, a literacy coach, asked the plaintiff to read
the part of Timothy, a Black West Indian man, because he had
"the right accent." Id. The plaintiff found the author's description
of Timothy (referred to in the book as "the Negro") and the dialogue,
written in a phonetic vernacular, to be "insensitive, demeaning, and
humiliating" and refused to read the passage. Id. Plaintiff alleges
that, Principal Garcia "must have approved and condoned" the use of
the book. Id. Plaintiff also alleges that he saw Principal Garcia
sitting in the back of the room with another teacher, smiling, at the
time he was asked to do the reading. Id. ¶ 28. Similarly, plaintiff
alleges that he was the only teacher required to read with his class
the young-adult novel, Roll of Thunder, Hear My Cry, a book that
repeatedly uses the word "nigger." Id. ¶ 29.
Plaintiff alleges that for the 2006-2007 school year, Principal Garcia created a segregated lunchroom. Id. ¶ 30. Plaintiff and the only other Black, Caribbean teacher were scheduled to a separate lunch period from their two fifth grade colleagues, who were Hispanic and Indian/Guyanese, respectively. The teachers in third grade and fourth grade, all of whom were White or Hispanic, shared the same lunch periods.
On December 22, 2006, the staff had a luncheon in the school library. Plaintiff alleges that of the four fifth grade teachers, Principal Garcia only informed Rosa Ruiz, who is Hispanic, about the lunch. Id. ¶ 31. The other three teachers, who were Black or dark-skinned, were excluded.
On December 14, 2006, plaintiff requested some documents from his personnel file. Id. ¶ 34. On December 22, 2006, his union representative was informed that Principal Garcia shredded various documents from his personnel file, including "[p]laintiff's internship documents and letters of recommendation and commendation." Id. Plaintiff alleges that Garcia did not shred the documents of any other teachers. Id.
Finally, plaintiff alleges that when his class performed at a cultural day on June 14, 2006, Principal Garcia, along with four other colleagues, walked out of the performance. Id. ¶ 33. Plaintiff alleges that they watched all the other classes perform and returned to the room as soon as his class finished.
During the 2006-2007 school year plaintiff was observed by Dionne Jaggon ("Jaggon"), the school's math coach.*fn2 Andersen Decl. Ex. L, at 16, 18-23. On October 18, 2006, December 19, 2006, and January 16, 2007, Jaggon observed plaintiff teaching math classes. Id. Ex. N-P. Jaggon was critical of plaintiff's teaching, finding a number of deficiencies. Id. AP Mendez also formally observed Plaintiff teaching a Literacy/Social Studies class on October 3, 2006 and a Math class on January 25, 2007. Id. Ex. Q & R. AP Mendez ranked plaintiff "satisfactory." Principal Garcia formally observed plaintiff teaching a Math class on March 19, 2007. Id. Ex. S. Principal Garcia deemed the lesson "unsatisfactory." On April 16, 2007, Superintendent Rodriguez-Torres observed plaintiff and was critical of plaintiff's planning and teaching. Id. Ex. T & U. Plaintiff received an overall rating of "unsatisfactory" on his 2006-2007 annual professional performance review. Id. Ex. TT.
A.The Office of Equal Opportunity
On December 27, 2006, plaintiff filed a complaint with the Office of Equal Opportunity ("OEO") in the DOE, alleging Principal Garcia discriminated against him on the basis of his color, race, and national origin. Id. Ex. YY. In a report dated February 20, 2007, the OEO found that "the complainant presented no credible evidence that he was discriminated against because of his race" and Principal Garcia "provided credible responses to each of the allegations." Id. Ex. ZZ. Plaintiff's appeal was denied in a decision dated May 4, 2007. Id. Ex. BBB.
B.The Equal Employment Opportunity Commission
On January 4, 2007, plaintiff submitted an Intake Questionnaire to the Equal Employment Opportunity Commission ("EEOC"). Id. Ex. GGG. On February 7, 2007, plaintiff filed a Charge of Discrimination with the New York State Division of Human Rights and the EEOC against the DOE and NYC, alleging discrimination on the basis of color, race, and national origin. Id. Ex. HHH. Plaintiff submitted an amended charge on October 22, 2007. Id. Ex. III. On December 18, 2008, the EEOC issued a right-tosue letter to the plaintiff. Id. Ex JJJ. Prior to the commencement of this action, the EEOC did not file any action or enter into any conciliation agreement regarding Phillip's complaint. Am. Compl. ¶ 14.
III.Plaintiff's Retaliation Claim
Plaintiff alleges defendants retaliated against him after he filed his OEO and EEOC complaints. This retaliation included more than twenty negative performance evaluations;*fn3 referring plaintiff for psychological evaluation, Andersen Decl. Ex. CC & PPP; using "derogatory terms" in reference to plaintiff, Am. Compl. ¶ 35; and the instigation of disciplinary charges, Andersen Decl. Ex. UU & VV. On October 26, 2007, plaintiff was suspended with pay. Id. Ex. UU. Approximately one year later, by a letter dated October 7, 2008, plaintiff's H-1B visa was revoked on the grounds that he had been suspended.*fn4 Id. Ex. WW. Without the visa, plaintiff was ineligible to work in the United States and his employment was terminated. Defs.' R. 56.1 ¶ 76.
Plaintiff filed additional complaints with the OEO on April 18, 2007, and with the EEOC on October 22, 2007, alleging he was retaliated against for his first OEO and EEOC complaints. Andersen Decl. Ex. CCC & III. In a report dated May 30, 2007, the OEO found that the evidence did not substantiate plaintiff's retaliation claims. Id., Ex. DDD. Plaintiff also filed a complaint with the DOE on June 1, 2007 against Principal Garcia and another teacher, James Caulfield ("Caulfield"), alleging he was harassed and threatened. Id. Ex. FFF. The Office of Special Investigations ("OSI") referred the investigation to the regional superintendent. Id. In a decision dated July 9, 2007, Superintendent Rodriguez-Torres found plaintiff's complaint to be unfounded. Id.
This Court has original jurisdiction over plaintiff's Title VII and § 1981 claims, claims arising under federal law. The Court also has supplemental jurisdiction over plaintiff's state law discrimination claims. Federal courts have supplemental jurisdiction over "all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). A state law claim forms part of the same controversy if the state and federal claim "derive from a common nucleus of operative fact." United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). Here, the parties and alleged events and injuries that form the basis of plaintiff's federal claims are identical to those that form the basis of plaintiff's state law claims.