United States District Court, E.D. New York
April 9, 2013
BETTY F. BROWN GREENE, Plaintiff,
BRENTWOOD UNION FREE SCHOOL DISTRICT, et al., Defendants
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For Betty F. Brown Greene, Plaintiff: Harriet A. Gilliam, LEAD ATTORNEY, Law Office of Harriet A. Gilliam, Riverhead, NY.
For Brentwood Union Free School District, Board of Education, Brentwood Union Free School, George Talley, Individually and as President Board of Education, Brentwood UFSD, Lorraine Pace, Individually and as Trustee, Board of Education, Brentwood UFSD, Stephen Coleman, Individually and as Trustee Board of Education, Brentwood UFSD, Roland Jimenez, Individually and as Trustee, Board of Education, Brentwood UFSD, Donna Jones, Individually and in her capacity as Superintendent of Schools Brentwood Union Free School District, Dr. Joan Lange, Individually and in her capacity as Assistant Superintendent of Schools, Brentwood Union Free School District, Defendants: Lewis R. Silverman, LEAD ATTORNEY, Caroline Beth Lineen, Rutherford & Christie, LLP, New York, NY.
REPORT AND RECOMMENDATION
Arlene R. Lindsay, United States Magistrate Judge.
The plaintiff, Betty F. Brown Greene (" Greene" ), commenced this action against the defendants, the Brentwood Union Free School District (the " District" ), the Board of Education of the Brentwood Union Free School District (the " Board" ), Board members George Talley (" Talley" ), Lorraine Pace (" Pace" ), Stephen Coleman (" Coleman" ), and Ronald Jimenez (" Jimenez" ), Superintendent Donna Jones (" Jones" ) and Assistant Superintendent Joan Lange (" Lange" ), alleging that they discriminated against her on the basis of her race, gender and religion and retaliated against her for opposing the discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq., 42. U.S.C. § 1981, and the Equal Protection Clause as made actionable by 42 U.S.C. § 1983. Before the court, on referral from District Judge Feuerstein, is the defendants'
motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth herein, the undersigned recommends that the defendants' motion for summary judgment be granted.
The following facts, drawn from the Complaint and the parties' Local Civil Rule 56.1 Statements, are construed in the light most favorable to the non-moving party, except as otherwise noted. See Capobianco v. City of New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005).
A. Greene's Employment History
The plaintiff is an African-American woman who was hired by the District as a high school home economics teacher in 1978. Defs. 56.1 Statement at ¶ 1. The defendant Talley is a Caucasian man who became a member of the Board in 2003 and was President of the Board from 2008-2009. Id . at ¶ ¶ 4, 5. Pace is a Caucasian women who became a member of the Board in 2007 and was Vice-President of the Board from 2008-2009. Id . at ¶ ¶ 6, 7. Coleman is a Caucasian man who was a member of the Board from 1991 to 2012. Id . at ¶ 8. Jimenez is a Hispanic man who served as a member of the Board from July 2008 to June 2011. Id . at ¶ 9. Superintendent Jones is African-American woman. Id . at ¶ 2. She served as Superintendent of the District from 2007 to June 2010. Id . Assistant Superintendent Lange is a Caucasian woman. Id . at ¶ 3. She was the Assistant Superintendent for Secondary Education from June 2007 to August 2011. Id .
In 1998, Greene was promoted to the position of Teacher on Special Assignment/Dean of Students. Id . at ¶ 11. In 2006, she was promoted to the position of Assistant Principal for the Evening High School/Adult Education Program (" EHS" ). Id . at ¶ 12. The Assistant Principal position had a probationary term from August 11, 2006 to August 10, 2009. Id . at ¶ 13. She maintained her position until July 1, 2009. See Complaint at ¶ 19.
Greene was appointed to the Assistant Principal position by interim Superintendent of Schools Michael Cohen. See Silverman Decl. at Ex. D at 18:5. Although Greene alleges in her complaint that she was the first African-American in twenty-five years to hold an assistant principal position at the high school level, see Complaint at ¶ 22, Greene does not deny that from 2004 to 2011, the District hired nineteen other minority individuals as principals and assistant principals. Defs. 56.1 Statement at ¶ 93. Of these nineteen individuals, ten individuals are African-American. Id . at ¶ 94. From 2008 to 2011, the District also appears to have employed twenty-three females as principals or assistant principals. See Silverman Decl. at Ex. OO, Resp. 2.
In her capacity as Assistant Principal for the EHS, Greene was responsible for four program areas: the Adult Education Program; the Summer School; English as a Second Language; and Records Retention. Complaint at ¶ 21. Her immediate supervisor was Denis Bracco (" Bracco" ),
the Principal of the EHS. Id . at ¶ 24. Greene was the only administrator on duty from 3:00 p.m. to 6:00 p.m. Id . at ¶ 23.
During the course of her employment, Greene received good performance reviews, was never the subject of any formal or informal disciplinary proceeding, and was recognized for her contributions to the District, in particular to the EHS Program. Id . at ¶ ¶ 25, 26. On June 4, 2008, Greene received her last annual evaluation. Id . at ¶ 30. In the evaluation, Bracco stated, among other things:
Your knowledge, skills and experience that you attain have continued to benefit the Evening High School, Summer High School and Continuing Education Programs. You take your responsibilities very seriously and you are an effective administrator. . . .
During the past school year you continued to successfully demonstrate you leadership abilities in dealing with students and staff. . . .
You are poised and calm under pressure. . . .
You continue to follow proper procedure and protocol . . . .
Gilliam Decl. at Ex. E.
On November 7, 2008, Greene was notified that she would become eligible for tenure consideration during the 2009/2010 school year. See Gilliam Decl. at H. The notice indicated that the supervisor would be meeting with her regarding a tenure evaluation and discussing her attendance during the probationary period. Id . Greene's name was then added to the Certified Personnel Appointment listing indicating that she was a tenure candidate " effective 9/1/09-6/30/10." Id . at Ex. Q.
B. The November 12, 2008 Incident
On November 12, 2008, while Greene was still a probationary employee, Alexandria Nunez (" Nunez" ), a tenth grader at Brentwood High School, stayed after school with a friend. Defs. 56.1 Statement at ¶ ¶ 14, 17. Nunez had just returned to school that day after undergoing a tonsillectomy. Id . at ¶ ¶ 15-16. While she was watching her friend (" K" ) at jazz orchestra, Nunez began coughing up blood. Id . at ¶ 17. Silverman Decl. at Ex. T, p. 662. K alerted Theresa Poland, a teacher at the school, who immediately left the room to advise Greene that a student was vomiting blood. Id . at ¶ ¶ 19-20; Silverman Decl. at Ex. T, p. 714.
In the meantime, K called Nunez's mother and reported that her daughter was spitting up blood. Id . at ¶ ¶ 21-22; Silverman Decl. at Ex. T, p. 662. Mrs. Nunez told K to call an ambulance and immediately drove to school. Id . at ¶ ¶ 22-23. As soon as Greene was alerted to the situation, she and Poland, joined by
a security guard, went to the music wing to find Nunez. Id . at ¶ 24, Pl. 56.1 Counter-Statement at ¶ 20. When they arrived, Nunez was no longer throwing up blood. See Silverman Decl. at Ex. T, p. 658, 662.
According to K's version of the events, when Greene arrived at the music wing, K was in the process of calling 911. See Silverman Decl. at Ex. T. Greene appeared angry. Id . When K explained she was calling an ambulance, Greene told her " no," so she hung up the phone. Id . Greene told the girls to accompany her to the front office and Nunez advised Greene that her mother was on the way. Id . at ¶ ¶ 28-29. At approximately 4:44, while the girls were walking to the front office, 911 called back. See also Silverman Decl. at Ex. T. K explained to the operator that her friend was throwing up blood. Id . When the operator asked K if she needed assistance, K said " I don't know." Id . K indicated during her interview that she did not know what to say to the operator because Mrs. Nunez had told her to call the ambulance but Greene had told her to hang up the phone. Id . K, nonetheless, remained on the phone and the ambulance asked for the address of the school, which she did not know. Id . K recalls that when she then asked Greene for the address, Greene rolled her eyes and said " 2 6th Avenue" and then asked her for Mrs. Nunez' telephone number. Id .
Greene's recollection concerning how she learned that an ambulance had been called is somewhat inconsistent. The day after the incident, Greene reported that K had informed her that Nunez's mother had instructed her to call an ambulance. See Silverman Decl. at Ex. T, p.658. A few days later, during her interview, Greene repeated that K had reported that she had called the police, but she also said she " had no clue if the police had been contacted." See Silverman Decl. at Ex. T. In her 56.1 Counter-Statement, Greene states that the security guard advised her that the police and EMS had been called. Pl. 56-1 Counter-Statement at 28. In any case, Greene's " best recollection" is that she never told K to hang up the phone. See Silverman Decl. at Ex. T.
Mrs. Nunez arrived at school at the same time as the ambulance. Id . at ¶ 30. According to Mrs. Nunez, Greene had phoned her before her arrival to say she was not going to be able to call an ambulance because they would not take Nunez without her being present at school. See Silverman Decl. at Ex. T. Mrs. Nunez also reported that when she arrived at school, K was very mad because " all Mrs. Greene cared about was [whether] there [was] going to be a lawsuit." Id . Mrs. Nunez asked the security guard " who at school
was concerned about a lawsuit" and his answer was " it wasn't me, it was her, meaning Mrs. Greene." Id . The security guard recalls that he called Greene and asked her to come back [to where they were standing] and help and when Greene returned Mrs. Nunez yelled " I know you try to help these students a lot and I am not the type to sue however you should have called the police." Id .
As soon as Nunez was placed in the ambulance, she started throwing up blood again. Id . at ¶ 31. Nunez was admitted for a one night stay and lost two liters of blood. Id . at ¶ 33. Greene then reported the incident to Bracco. Id . at ¶ 34.
C. Mrs. Nunez's Complaint and the Investigation
The day after the incident, Mrs. Nunez called the Principal of the high school to lodge a complaint. Defs. 56.1 Statement at ¶ 36. The Principal said he would get back to her but he didn't. Id . at ¶ 35. Mrs. Nunez then called Pace, who she had met when her daughter was in the competitive marching band. Id . at ¶ 36. Pace told her to call the school again and that someone would get back to her. Id . at ¶ ¶ 36-37. Pace, along with George Talley, then informed Jones about the incident and asked her to conduct an investigation. See Gilliam Decl. at Ex. MMM, 151:22. In response to their request, Jones met with Mrs. Nunez and directed Assistant Superintendent Lange to investigate the matter. Id . at ¶ ¶ 39,40.
During the investigation, Lange interviewed Greene Nunez, K, Mrs. Nunez, Ms. Poland, two security guards and Nunez's doctor. Id . at ¶ 42 Silverman Decl. at Ex. T. Lange also reviewed written statements from Greene and Poland. Id . at ¶ ¶ 43-44. At the conclusion of the one week investigation, Lange prepared a memorandum for Jones in which she reported that she too had received a call from Mrs. Nunez " regarding the alleged mishandling of a medical emergency." See Silverman Decl. at Ex. V, 655. Lange indicated that during a series of interviews " one of which included the examination of calls made on [Nunez's] cell phone]," she confirmed the following events:
o K immediately called her [own] mother (" because she used to be a nurse" ) whose instructions were to call [Nunez's] mother right away.
o K called [Nunez's] mother who directed her to call an ambulance.
o K called 911 and requested an ambulance.
o K hung up and several minutes later received a return call from 911.
o K also went to Ms. Theresa Poland, one of the club advisors. Ms. Poland left immediately to find an administrator. Ms. Poland returned to the scene with Ms. Greene, the administrator assigned to after school hours,
a security guard and a night custodian who was in the area. (Please note that the security guard had not been called but rather was spotted in the area and asked to accompany Ms. Greene and Ms. Poland.)
Id . Lange also reported that according to Greene, " You could see blood on the student's ID and there was a lot of blood in the garbage can outside the music classroom." Id . Lange further reported:
Ms. Greene instructed the two girls to follow her to the Sonderling front office. When [I] asked if an ambulance had been called, Ms. Greene replied, " I had no clue."
Ms. Greene did contact Ms. N when they arrived at the Sonderling front office. She informed Ms. N that she could not call an ambulance until the mother arrived at the school.
Please note that all administrators know that our protocol if the parent is unavailable is to instruct the parent to meet the child at the hospital. A staff member accompanies the student to the hospital.
K reported that Ms. Greene appeared to be upset that she (K) had called the ambulance and in fact directed her to hang up. . . .
Id . at 656. Lange concluded her report by stating:
I am deeply concerned regarding Ms. Greene's response to a situation where she admitted seeing a lot of blood from a student who told her she was throwing up blood. Although administrators do not have medical backgrounds, we are trained to make quick decisions regarding the health, safety and welfare of our students. To walk a student who has just thrown up " a lot of blood" to the Sonderling front office was a poor decision.
I recommend Ms. Greene receive a letter of discipline directing her to very different actions in future medical emergencies.
Id . Lange reported the results of her investigation to the Board of Education in an Executive Session. Defs. 56.1 Statement at ¶ 52.
D. Jones' Recommendation and Greene's Subsequent Resignation
Upon receipt of the report, Jones was conflicted about what action to take because Greene had been an employed by the District for many years, had a record of good performance, her family lived in the community, and she had been a good advocate for children. Id . at ¶ 53. However, the investigation had called into question Greene's judgment. Id; see Gilliam Decl. at MMM, 156:19-157:12. In addition, Jones had received reports indicating that Greene had shown no remorse for the incident despite the fact that there were serious concerns of poor judgment that could have led to a very serious situation involving the child. See Gilliam Decl. at MMM, 160:18. Jones would have been comfortable adopting Lange's recommendation, but Talley and Pace felt strongly that Greene needed to be terminated because she had endangered the life of a child. Id . at 162:12-24; see also Def. 56.1
Statement at ¶ 54. Accordingly, on November 24, 2008, Jones decided to recommend Greene's termination and orally advised Greene of her decision. Id . at ¶ 55. O'Brien, who was present at the meeting, asked Jones to consider a lesser penalty such as referring Greene to training or extending Greene's probationary appointment, but Jones refused. Gilliam Decl. at MMM, 177-78.
Following the meeting, O'Brien met with Greene on numerous occasions to discuss her option of resigning rather than being terminated, which Greene would not consider. Id . at ¶ 57. Accordingly, on January 22, 2009, two months after the incident, Jones finally advised Greene in writing that she would be recommending Greene's termination at the February 25, 2009 board meeting. Id . at ¶ 58; Silverman Decl. at Ex. X. Upon receipt, Greene mailed Jones a written statement setting forth her credentials as well as her ties to the community and requesting that Jones provide her with the reasons for her recommendation. Silverman Decl. at Ex. Y. However, on February 5, before Jones could respond, Greene changed her mind and submitted her resignation to the Board, indicating that she was " retiring with all the due benefits provided in the B.P.S.O. contract." Id . at AA.
On February 12, 2009, Jones nonetheless responded to Greene's request for the reasons for her recommendation. Id . at ¶ 60. In her letter, Jones indicated that she had intended to make the recommendation because Greene had " used poor judgment that endangered the life of a student." Id . at ¶ 60; see Silverman Decl. at Ex. Z. Thereafter, on February 25, 2009, the Board voted to accept Greene's resignation effective July 1, 2009. Id . at ¶ 64. As a result, the Board never voted on whether to accept Jones' recommendation to terminate Greene. Id . at ¶ 63.
E. Greene's Subsequent Application for the Principal Position
Less than one month later, the District posted a notice for the position of Principal of the Evening High School effective July 1, 2009, with an application cut-off date of March 26, 2009. Id . at ¶ 67; Silverman Decl. at Ex. EE. On March 25, 2009, Greene submitted an application for the position but was not interviewed. Def. 56.1 Statement at ¶ 69. Anthony DeConstanzo and Bergre Escorbores, who also applied for the job, were interviewed. Id . at ¶ 71. In May, the District re-posted the notice. Id . at ¶ 73. The notice indicated that former applicants need not re-apply for consideration and that the re-posting was for District employees only. Silverman Decl. at Ex. HH. Accordingly, Greene did not reapply. Defs. 56.1 Statement at ¶ 74.
In response to the second posting, Jack Farnetti and William Dargan applied for the position. Id . at ¶ 75. Farnetti, who had served as an Assistant Principal at the High School for six years, was interviewed by the committee. Id . at ¶ ¶ 75, 84; see Silverman Decl. at Ex. E, 64:9-10. Dargan, who was retired, was not interviewed. Id . Before Jones could make her recommendation, the District also posted a notice for the position of Assistant Principal of the Evening High School, the position that would become available upon Greene's retirement. Defs. 56.1 Statement at ¶ 78. Seven people applied for that job and three were interviewed. Id . at ¶ ¶ 78-79. The three people interviewed, namely Alexander
Richardson, Mark Ingram and Joseph Manchester, were all current employees of the district. Id . at ¶ 79. After the candidates for Assistant Principal had also been interviewed by the steering committee, they recommended Farnetti and Escorbores for the Principal position and Richardson and Ingram for the Assistant Principal position. See Silverman Decl. at Ex. JJ. Escorbores then withdrew his application. Defs. 56.1 Statement at ¶ 82; Pl. 56.1 Counter-Statement at ¶ 82. Accordingly, in June, Farnetti was the sole candidate interviewed by the Board and was offered the position starting July 1, 2009. Defs. 56.1 Statement. at ¶ 83. Richardson, who is African-American man, was appointed to replace Greene. Id . at ¶ 85.
Based on all of these events, Greene alleges in her complaint that the defendants (1) wrongly disciplined and terminated her, denied her consideration for tenure, and denied her a promotion because of her race in violation of Title VII, (2) denied her the promotion because of her gender in violation of Title VII, (3) retaliated against her by limiting her duties and responsibilities after she complained about the disparate and discriminatory treatment in violation of Title VII, (4) denied her tenure and the promotion because of her religion in violation of Title VII, (5) deprived her of equal protection by disciplining and terminating her, changing her work assignments, and creating a hostile work environment in violation of 42 U.S.C. § 1981, (5) and deprived her of equal protection by denying her the promotion, tenure and continued employment in violation of 42 U.S.C. § 1983. In her memorandum, Greene summarizes her claims, alleging that " she was being discriminated against in order to block her tenure and further deny her a promotion to Principal EHS." Pl. Opp. at 1.
The defendants now move for summary judgment on the following grounds: (1) the Jones' recommendation was not an adverse action; (2) Greene was not qualified for the Principal job given the fact that she had resigned and would be retired as of the start date for the position; (3) the District had legitimate and non-discriminatory reasons for its actions; and (4) Greene has not presented any evidence of a pretext for their actions.
A. Summary Judgment Standards
" 'Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law.'" Puglisi v. Town of Hempstead, *15 (E.D.N.Y. Sept. 17, 2012) (quoting In re Blackwood Assocs., L.L.P., 153 F.3d 61, 67 (2d Cir. 1998) and citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); Fed.R.Civ.P. 56(c). In deciding a summary judgment motion, the district court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the opposing party. See Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 137 (2d Cir. 1998). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996), cert denied, 520 U.S. 1228, 117 S.Ct. 1819, 137 L.Ed.2d 1027 (1997).
The trial court's responsibility is " 'limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.'"
Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994). When, however, there is nothing more than a " metaphysical doubt as to the material facts," summary judgment is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). " [T]here must exist 'specific facts showing that there is a genuine issue for trial' in order to deny summary judgment as to a particular claim." Jamaica Ash & Rubbish, 85 F.Supp.2d at 180 (quoting Celotex, 477 U.S. at 322). A moving party may obtain summary judgment by demonstrating that little or no evidence may be found in support of the non-moving party's case. " When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Marks v. New York Univ., 61 F.Supp.2d 81, 88 (S.D.N.Y. 1999). With these standards in mind, the court addresses the pending motion.
B. Greene's Title VII Claims
1. Applicable Law
Title VII prohibits an employer from discriminating 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 Richardson v. Commission in Human Rights & Opportunities, 532 F.3d 114, 119 (2d Cir. 2008). Greene contends that she was discriminated against on the basis of her race, gender and religion. Specifically, Greene asserts that she was wrongfully disciplined, terminated, denied consideration for tenure and denied a promotion because of her race. See Complaint at ¶ 108-113. She also asserts that was denied the promotion because of her sex. Id . at 114-117. Finally, she asserts that she was denied consideration for tenure, constructively discharged and denied the promotion because of her religion. Id . at ¶ 124-129. " The ultimate issue' in any employment discrimination case is whether the plaintiff has met her burden of proving that the that the adverse employment decision was motivated at least in part by 'impermissible reason, i.e., that there was discriminatory intent." Weisbecker v. Sayville Union Free Sch. Dist., 890 F.Supp.2d 215, * 39 (E.D.N.Y. Sept. 12, 2012). Since Greene's race, gender and religion claims overlap, the court will address them together.
a. Direct Evidence of Discrimination
Courts generally apply the McDonnell Douglas burden-shifting analysis to discrimination claims such as these " to assure that the 'plaintiff [has her] day in court despite the unavailability of direct evidence.'" Short v. Fair Hous. Justice Cntr., 916 F.Supp.2d 375, *50 (S.D.N.Y. Dec. 4, 2012)(citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985)). " However, '[t]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination. To avoid the burden-shifting analysis, 'the plaintiff must be able to produce a 'smoking gun' or at least a 'thick cloud of smoke' to support [her] allegations of discriminatory treatment.'" Id . at *50-51 (citing Raskin v. Wyatt Co., 125 F.3d 55, 61 (2d Cir. 1997)(internal citations omitted)). Here, Greene has not presented the type of evidence needed to circumvent the McDonnell Douglas framework.
Greene contends that she has offered direct evidence of discrimination, that is, proof of Talley's racial and sexual animus.
Her evidence includes, she says, accounts of Talley's derogatory statements about minorities and women such as referring to Jones as " that black bitch," to another board member as " a dumb nigger," or to another female board member as " a fat ugly cunt." However, Greene has pointed to no admissible evidence to support her contentions. Greene's alleged proof of racial and gender animus is gleaned, in large part, from the depositions of O'Brien and Jones. During O'Brien's deposition, Greene's counsel engaged in the following colloquy:
Q: I'm going to read to you several statements that Frank Scimeca has made in a sworn affidavit and ask you if you have any reason to disbelieve anything that he's quoted as saying. . . .
Q: Mr. Scimeca states in his [affidavit], quote:
(Reading) " Talley referred to board member Gail Kirkman as, quote, " Another dumb nigger," closed quote. . . .
A: And the question that your asking me is?
Q: Do you have any reason to disbelieve that Mr. Talley made this statement to Mr. Scimeca?
A: I would find it hard to believe that he was that stupid. . . .
Q: Another quoted (sic.) that Mr. Scimeca makes in his sworn affidavit, he is referring to a conversation with Talley and he says:
(Reading) Talley reached for my arm and said, quote, " Frank, be careful whose side you chose to be on, because that black bitch, Donna Jones, on the third floor, doesn't know who she is dealing with, and when I am done using her, I will throw her black ass out in the street where she belongs," closed quote.
Any reason to disbelieve that Mr. Scimeca was not being truthful and forthright in his statement as to what Talley said? . . .
A: I have no reason to disbelieve Mr. Scimeca.
Gilliam Decl. at Ex. TTT 150:19-154:24.
Similarly, Greene's counsel asked Jones:
Q: Having just described Mr. Embree's work performance and issues with his attendance, I am going to read you a quote from [Mr. Scimeca's] sworn statement [about Mr. Talley], and ask
you if this is something you believe, knowing Mr. Talley, that he would have made a remark about. . . . Talley called one board member Suzanne Belanger-Embree quote, a fat ugly cunt who will vote the way I tell her to vote . . . .
A: The question is -
Q: . . . would this statement be something that you would consider to be in line with what the sentiment was that Mr. Embree didn't report to work, he didn't have to because his wife was on the board?
. . .
Q: Can you answer the question, please?
A: Yes. . . .
Gilliam Decl. at Ex. MMM 141:18-142:24. In her deposition, Jones was also read a statement in which Talley was said to have referred to her as a " black bitch" and she indicated that she believed it was something Talley would have said to Scimeca. Gilliam Decl. at Ex. MMM 142:25-144:4.
The testimony of O'Brien and Jones commenting on the affidavit of a co-worker in which he reiterates derogatory statements allegedly made by Talley is inadmissible hearsay. Moreover, even if the comments were admissible, the comments, although inappropriate, are not probative of the defendants' motive for taking action against Greene. See Shepard v. BCBG Max Azria Group, Inc., *65-66 (S.D.N.Y. Oct. 11, 2012)(citing, inter alia, Dixon v. Int'l Fed'n of Accountants, (S.D.N.Y. Apr. 9, 2010)(" co-worker's comment at a meeting that 'she can't believe that [defendant] could hire a black Jamaican women at 48 years of age' held to be 'at best ambiguous as to whether it met the test for discriminatory animus. . . ." ); Renz v. Grey Adver., Inc . 135 F.3d 217, 224 (2d Cir. 1997)(" granting summary judgment to employer because plaintiff's sole evidence of discrimination consisted of isolated remarks by decision-maker that, although inappropriate, were not directed at plaintiff'); Nugent v. St. Luke's/Roosevelt Hosp. Ctr., (S.D.N.Y. Apr. 18, 2007) (" inappropriate gender related remarks made by male supervisor but not directed at female plaintiff were 'insufficient to demonstrate that adverse actions taken against the plaintiff [were] attributable to gender bias')).
Greene also refers to a chart prepared by defense counsel listing other complaints of discrimination against the District and Talley. While, the direct testimony of other employees about their treatment by the defendants may be relevant to the issue of the employer's intent, see Zubulake v. UBS Warburg LLC, 382 F.Supp.2d 536, 545
(S.D.N.Y. 2005), the complaints, themselves, are also inadmissible hearsay. See Richmond v. General Nutrition Ctrs., Inc., *30 (S.D.N.Y. Mar. 9, 2012). Moreover, the minimal information that has been provided about the circumstances underlying those complaints is not enough for the court to assess whether that the type of discrimination directed at those plaintiffs was similar to the discrimination allegedly experienced by Greene. See Zubulake, 382 F.Supp.2d at 545. Accordingly, since the only " direct evidence" presented by Greene are hearsay statements unrelated to the events at issue, the court must proceed with a McDonnell Douglas analysis.
b. McDonnell Douglas Framework
Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination by showing that she (1) belonged to a protected class, (2) was qualified for the position she held or sought, (3) suffered an adverse employment action, and (4) did so under circumstances giving rise to an inference of discriminatory intent. Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). If the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Stratton v. Department for the Aging, 132 F.3d 869, 879 (2d Cir. 1997).
The employer's burden of showing a legitimate non-discriminatory reason for its actions is not a particularly steep hurdle. It is not a court's role to second-guess an employer's personnel decisions, even if foolish, so long as they are non-discriminatory. See Seils v. Rochester City Sch. Dist., 192 F.Supp.2d 100, 111 (W.D.N.Y. 2002) (citing, inter alia, Meiri, 759 F.2d 989, 995 (2d Cir. 1985)). Federal courts do not have a " roving commission to review business judgments," Mont. v. First Fed. Sav. & Loan Ass'n of Rochester, 869 F.2d 100, 106 (2d Cir. 1989) (quoting Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 21 n.8 (7th Cir. 1987)), and may not " sit as super personnel departments, assessing the merits -- or even the rationality -- of employers' non-discriminatory business decisions." Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991). Thus, " [e]vidence that an employer made a poor business judgment generally is insufficient to establish a question of fact as to the credibility of the employer's reasons." Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988).
If the employer establishes a legitimate nondiscriminatory reason for its actions, the McDonnell Douglas framework and its presumptions and burdens disappears, leaving the sole remaining issue of " discrimination vel non," and the burden shifts back to the plaintiff to prove that the employer's stated reason is merely pretextual and that discrimination was an actual reason for the adverse employment action. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In order to demonstrate that the employer's stated non-discriminatory reasons for the allegedly discriminatory action are pretextual, " [a] plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the motivating factors."
Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995); see Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004). However, to withstand summary judgment, a plaintiff must present more than allegations that are " conclusory and unsupported by evidence of any weight." Smith v. Am. Exp. Co., 853 F.2d 151, 155 (2d Cir. 1988). " To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases." Meiri v. Dacon, 759 F.2d at 998 (2d Cir. 1985).
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." St. Mary's Honor Cntr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir. 1998)(" the thick accretion of cases interpreting the burden shifting framework should not obscure the simple principle that lies at the core of anti-discrimination cases . . . the plaintiff has the ultimate burden of persuasion). With these standards in mind, the court will address Greene's collective Title VII allegations.
2. Greene's Race, Gender and Religious Discrimination Claims
As stated above, Greene alleges that the defendants wrongfully disciplined and terminated her, denied her an extension of her probationary period, denied her consideration for tenure and denied her a promotion because she is an African-American, Christian woman. The defendants do not dispute that Greene was a member of a protected class with respect to each of her claims. They do dispute, however, that she suffered an adverse employment action with respect to the Nunez incident and that she was qualified for the position of Principal of the Evening High School. Moreover, the defendants contend that they had legitimate nondiscriminatory reasons for recommending her termination and denying her a promotion and that Greene has failed to present sufficient evidence that the reasons they have articulated for their decisions are a pretext.
a. The Adverse Employment Actions
" A plaintiff suffers an adverse employment action when she experiences a " materially adverse change in the terms and conditions of employment. Typical adverse employment actions may include termination from a job, decrease in salary, material reduction in benefits or responsibilities, or a less distinguished title." Weisbecker, (internal citations omitted). Greene argues in her opposition papers that she has experienced an adverse employment action because had she not resigned and retired from her position, she would have been terminated. Pls. Opp. at 16. Greene also contends that the District's decision to deny her tenure, rather than to extend her probationary period, as an alternative to the recommendation to terminate, is a covered activity under Title VII. Id . at 17. Although Greene characterizes the defendants' conduct as distinct adverse actions, it is clear that these actions are one and the same.
The defendants never voted on Greene's termination or discussed her eligibility for tenure. In fact, she was not eligible for tenure consideration until September 1, 2009. See Gilliam Decl. at Exs. H, Q. The only action taken by the defendants was Jones' recommendation to terminate Greene's employment and that recommendation does not constitute an adverse employment action. Weisbecker,
As Judge Bianco noted in Weisbecker :
Threats of termination do not, by themselves, constitute an adverse employment action as a matter of law. . . . This is especially true, . . ., where (1) the recommendation was made by [a person], who was not the final decision maker with respect to termination, (2) plaintiff was notified of the recommendation of termination well in advance of the Board's meeting, and (3) plaintiff was afforded extensive process under New York Education Law § 3031 to request [the] reasons for the recommendation and provide a responsive statement to the Board. As such, as a matter of law, [a recommendation of termination is] not an adverse employment . . . .
Id . at * 45-46 (internal citations omitted). As in Weisbecker, Greene was advised by Jones, who was not the final decision maker, that she would be recommending her termination well in advance of the February board meeting and was given an opportunity to request the reasons for her recommendation. In addition, before Jones could respond or the Board could vote on the recommendation, Greene resigned.
Similarly, Greene was not considered for tenure because she resigned before she became eligible. Greene was not eligible for tenure consideration until the 2009-2010 school year. See Gilliam Decl. at Exs. H, Q. She submitted her resignation on February 5, 2009, effective July 1, 2009. There is not a shred of evidence suggesting that before the Nunez incident, the Board had already begun to consider Greene's eligibility for tenure or that their desire to deny her of that privilege somehow influenced Jones' decision. Compare Curcio v. Roosevelt Union Free Sch. Dist., *22 (E.D.N.Y. Aug. 22, 2012)(SJF)(where defendants conceded that recommendation of denial of tenure was an adverse action).
Nor can the recommendation be considered a constructive discharge. " For a court to consider constructive discharge a plaintiff must show that employer 'intentionally create[d] a work atmosphere so intolerable that [the employee] is forced to quit involuntarily.'" Madray v. Long Island University, 789 F.Supp.2d 403, 409 (E.D.N.Y. 2011)(citing Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d Cir. 2003)). Greene contends that " [t]he accumulative effect of individual acts by Lange [and] Jones were so pervasive that plaintiff's work environment was so severe that she was forced to retire." Pl. Opp. at 22. A review of the record indicates that these actions did not, however, create the type of atmosphere that would have compelled a reasonable person in Greene's shoes to resign. Greene could have waited for Jones' explanation and submitted a response directly to the Board before submitting her resignation. Instead, Greene chose to respond to the allegations fifteen days after she had already submitted her notice of resignation.
Accordingly, whether you characterize the defendants' actions as a disciplinary action taken by Jones, an " attempt to block her tenure," or a constructive discharge, Greene did not suffer an adverse employment action with respect to the Nunez incident.
b. Qualification for the Promotion
With respect to Greene's application for the Principal position, the defendants do not dispute that the failure to promote is an adverse employment action. See Bir v. Pfizer, Inc., 510 Fed.Appx. 29, *5-6 (2d Cir. 2013). They argue, instead, that Greene has failed to establish a prima facie because she was not qualified for the job. In this regard, the defendants contend that the position started on July 1, 2009, the same day the Greene was due to retire. See Silverman Decl. at Exs. CC and FF. Pursuant to Section 211 of the New York State Retirement and Social Security Law, " [n]o retired person may be employed in a position in public service . . . except upon approval of . . . the commissioner of education." N.Y. Retire & S.S.§ 211(2)(a)(2). Moreover, to obtain approval from the Commissioner of Education, the District must file a written request for approval, which certifies, among other things, " [t]hat the district . . . has undertaken an extensive and good faith recruitment search for a certified and qualified candidate and determined that there are no available non-retired persons qualified to perform the duties of such position." * N.Y.C.R.R. § 80-5.5(c)(2)(i) .
Greene does not, and could not, dispute the existence of the retirement barrier in this case. It is undisputed that the Board had already voted to accept her resignation, effective July 1, 2009, the start date for the position. It is also undisputed that Jack Farnetti, who was hired for the position, was not retired and was qualified for the job having served as an Assistant Principal at the High School for six years. Defs. 56.1 Statement. at ¶ ¶ 75, 84; see Silverman Decl. at Ex. E, 64:9-10. Nonetheless, she argues that since she was still employed when the District interviewed for the position, the Board could have rescinded its decision to accept her resignation. It is clear, however, that Greene never made such a request to the Board. Moreover, while Greene argues that she was the better candidate for the position, and therefore, should have been considered, Farnetti was certainly a qualified candidate as defined by the New York State Education Department. Therefore, the court agrees that given her resignation and retirement status as of July 1, 2009, Greene was not qualified for the position.
Accordingly, Greene has not established a prima facie case for race, gender or religious discrimination with respect to Jones' recommendation of termination or the promotion, and no reasonable jury could find otherwise.
c. No Inference of Discrimination
Even if Greene could establish a prima facie case, Greene's discrimination
claims would not survive a motion for summary judgment because the defendants have articulated a non-discriminatory reasons for their actions and there is no evidence of a pretext. As was previously stated, under the McDonnell Douglas framework, once a plaintiff establishes a prima facie case " a rebuttable presumption of discrimination arises and the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment decision." Weisbecker, (citing Stratton v. Department for the Aging for the City of New York, 132 F.3d 869, 879 (2d Cir. 1997)). The defendants, here, have introduced admissible evidence to establish that they had a legitimate nondiscriminatory reason to recommend Greene's termination rather than extend her probationary period and to deny her a promotion. To begin with, a thorough investigation was conducted by Lange, which revealed that Greene had exercised poor judgment in her handling of the Nunez incident. See Silverman Decl. at Exs. V at 656; Z. That conclusion, in and of itself, was a legitimate basis to recommend Greene's termination. The defendants have also set forth two legitimate nondiscriminatory reasons for denying Greene a promotion, those being, that (1) Greene was ineligible for the job because she was due to retire on the same day and (2) the District could not have " in good conscience" given her a promotion on the heels of the Nunez incident. See Bickerstaff v. Vassar College, 196 F.3d 435, 446 (2d Cir.)(defendant need only offer an explanation for the decision); Patria v. East Hartford Bd. of Education, *29-30 (D. Conn. Mar. 31, 2010)(defendants provided legitimate nondiscriminatory reason for discipline where plaintiff placed student in danger by failing to report complaint about assistant coaches misappropriate behavior with student). Accordingly, the court turns its attention to the defendants' motivation for their conduct.
i) Greene's Evidence of Pretext
To establish that the defendants' explanations for its decisions were a pretext, Greene begins by relying on the same evidence that she offered in support of her prima facie case, namely, " Talley's racial animus." See Weisbecker (plaintiff may rely on evidence presented to establish her prima facie case as well as additional evidence). " At the pretext stage, 'a Title VII plaintiff . . . may offer evidence of remarks made by the employer at or about the time of the adverse action 'to show that the decision-maker was motivated by the discriminatory sentiment expressed in the remark.'" Ingenito v. Riri USA, Inc., *38 (E.D.N.Y. Feb. 27, 2013). As noted supra, however, Greene's evidence of Talley's racial animus was inadmissable hearsay.
Greene's contention that Talley controlled the Board and Jones, acting as the " defacto personnel department" when the decision was made to recommend her termination is also not supported. Greene has not offered any evidence on which a reasonable person could infer that " Lange was being unreasonable harsh and taking an untenable position" when she conducted the investigation. Pl. Opp. at 21. Greene disputes that she told K to hang up the phone and Mrs. Nunez that she could not call an ambulance. She also argues that, notwithstanding Lange's findings, she did what was supposed to do: " [s]he followed the chain of command, alerted security, who advised her that the ambulance had already been called, she inquired of the student why she was spitting up blood, . . . she ensured that the student was stable
and able to walk to the front office . . ., she contacted the student's parent. . ., she wrote up a report . . . and she complied with Central Administration's request for a report." But these contentions, even if true, do not prove that the defendants had a discriminatory motive when they found that she had used poor judgment. See Rodriguez v. City of New York, 644 F.Supp.2d 168, 187 (E.D.N.Y. 2008)(even evidence that an investigation was faulty does not automatically demonstrate that the defendants' proffered reasons for its decision to recommend termination were a pretext).
Nor is there any evidence that Jones was being pressured by Talley and Pace to terminate Greene before the investigation had begun. Pl. Opp at 21. While it is undisputed that Talley and Pace both thought that Greene should be terminated after the Nunez incident, and communicated their feelings to Jones, she did not immediately adopt there viewpoint. In fact, the record is clear that Jones struggled with the decision:
Q: During any conversation you had with Mr. Talley, did he ever express to you that he was seeking Miss Greene's termination? . . .
A: Yes. . .
Q: Can you tell me the sum and substance of this conversation with Mr. Talley where you said that he indicated that he was seeking Miss Greene's termination?
A: I told him I was very conflicted. . . .
Q: What do you mean by that?
A: Because I knew that Mrs. Greene had been an employee of the district for many, many years and that I was never aware of any problem with her job performance . . . .
However, I was conflicted because I felt that based on the investigation and the report that I received, it appeared that there were judgment calls that were questionable. So I was very conflicted in terms of what should be done.
Q: Did Mr Talley have any response to you stating you were conflicted about the action to that should be taken against Greene?
A: Yes. He was very strongly committed to termination.
Q: Was there any other board member around this time that had expressed to you they were strongly committed to Miss Greene's termination?
A: Lorraine Pace. . . .
Q: In sum and substance what did she say to you . . . .
A: She should be fired. That kid nearly died.
Gilliam Decl. At Ex. MMM, 156:3- 158:8. Jones further testified that the reports that she had received suggested that " there was no remorse for the incident . . . and there was a serious concern of judgment, poor judgment that could have led to a very serious situation involving a child." Id . at 160:18-25. Accordingly, while Jones, who initially advocated for Greene, may have been influenced by the viewpoints of Board members, there is no evidence to suggest that her ultimate decision was motivated by discrimination.
ii) Greene's Claim of Disparate Treatment
Likewise, Greene has not offered sufficient evidence to support her contention that she was treated differently with respect
to the disciplinary measures than other similarly situated employees. Greene avers that the defendants' response to the " serious conduct" of employees David Reuben (" Reuben" ), Jose Suarez (" Suarez" ), Vincent Palumbo and Bergre Escorbores (" Escorbores" ) are examples of the disparate treatment. Specifically, Greene claims that each of these men received lesser penalties for their conduct although in many ways their conduct was more severe.
While " evidence of disparate treatment of similarly situated individuals allows for the conclusion that the reasons advanced by an employer in a Title VII context are pretextual," see Summa v. Hofstra, 708 F.3d 115, *33 (2d Cir. Feb. 21, 2013), a plaintiff who seeks to establish disparate treatment must show that the employee to whom she compares herself is " similarly situated in all material respects." McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001). In this context, the Second Circuit has explained:
What constitutes " all material respects" . . . varies somewhat from case to case and, . . . must be judged based on (1) whether the plaintiff and those [she] maintains were similarly situated were subject to the same workplace standards and (2) whether the conduct for which the employer imposed discipline was of comparable seriousness. . . . Hence, the standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases, rather than a showing that both cases are identical. . . . The determination that two acts are of comparable seriousness requires--in addition to an examination of the acts--an examination of the context and surrounding circumstances in which those acts are evaluated.
Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) (internal quotation marks and citations omitted). With these principles in mind, the court examines whether the conduct of these employees was of comparable seriousness.
The record reflects that Reuben, a white-male, Assistant Principal, who was accused of making inappropriate sexual statements to a student was placed on home assignment and permitted to resign his position. He was then reassigned to the position of teacher/dean rather than being terminated. Gilliam Decl. at Ex. JJJ. However, the investigative report concluded that the student's claims of sexual misconduct were " unbelievable." Id . In addition, Reuben was later terminated for a unrelated incident, and thus, received a comparable, if not more severe, punishment for his conduct. Id .
Palumbo, a social worker/dean, who was alleged to have harassed students and teachers, was placed by Jones on administrative leave pending an investigation. Id. at MMM 87:13. Greene urges the court to consider that despite his serious conduct " Jones was blocked by the board from terminating [Palumbo] and had to settle for referring him to counseling." However, the record reflects that the Board could not terminate Palumbo because
the time to do so had expired. Id . at 78:20. Greene similarly contends that the Board protected Suarez, a Hispanic Principal, who was accused of being aware of the alleged harassment of employees by Palumbo. Suarez's conduct, however, did not involve a student; rather, Jones felt that he was not supportive of the teachers who brought Palumbo's conduct to his attention. Yet, Jones recommended the same discipline for Suarez as she had for Greene. However, unlike Greene, Suarez did not resign upon receipt of the recommendation enabling the Board to consider and vote on Jones' recommendation for his termination. Id . at 77:19.
Finally, Greene alleges that Escorbores was involved in inappropriate conduct which could have led to his termination and the Board agreed to extend his probationary period for a fourth year. Gilliam Decl. at Ex. SS; Pl. Opp. at 19. While it is clear from the record that Escorbores' probationary period was extended, the court in unable to determine from the record whether his conduct was of comparable seriousness. Therefore, Reuben, Palumbo, Suarez and Escorbores are not proper comparators.
Greene's claim that she was disparately treated with respect to the promotion is also unavailing. In support of this allegation, Greene contends that because she is an African-American, Christian women, she was not even interviewed for the job, whereas Farnetti, who was less qualified, was promoted because he was a white man. A review of the record demonstrates the following. Initially, two men applied for the position along with Greene, namely DeConstanzo and Escorbores. Defs. 56.1 Statement at ¶ 71. DeConstanzo and Escorbores were interviewed by the screening committee led by Lange, but Greene was not. Id . at ¶ 71. In May, the District re-posted the notice for the position indicating that prior applicants need not reapply. Id . at ¶ ¶ 73, 74 . Following, the posting Farnetti and Dargan applied. Id . at ¶ 75. The screening committee determined that Dargan was not eligible for the position because he had retired. After the interviews were conducted, the screening committee eliminated DeConstanzo from consideration and recommended Farnetti and Escorbores to the Superintendent. Id . at ¶ 75. Escorbores then withdrew his candidacy and Farnetti was interview by the Board and appointed to the position. Id . at ¶ ¶ 82, 83.
Greene argues that the fact that Lange, who she and others viewed as uncharacteristically harsh regarding the Nunez incident, was willing to even interview Escorbores and DeConstanzo shows that other employees were treated more favorably. This argument is utterly without merit. Greene has presented no evidence to show these candidates had engaged in conduct that should have effected their employment prospects. Greene only offers that Escorbores' probationary term had been extended prior to his application, but as discussed, supra, the circumstances leading up to the extension are not part of the record before the court. See Tu v. Oppenheimer Funds, Inc., *17 (S.D.N.Y. Feb. 15, 20120)(" When the conduct reflects 'no hint as to any [discriminatory] reason,' and '[a]ttributing the reason to race [or gender] would be based entirely on speculation,' a plaintiff
does not defeat a motion for summary judgment." ). Moreover, Lange, and the screening committee, considered interviewing Greene when they realized that DeConstanzo's retirement status was questionable because they had already interviewed him. See Gilliam Decl. at Ex. GG. But, it appear that they verified that he was not a member of the retirement system. Id .
There is also no merit to Greene's claim that Talley forced Escorbores to withdraw his application, to pave the way for a white candidate. The only evidence offered by Greene to support her contention is Jones' testimony in which she recalls " some conversation" between Talley and Escorbores that was influential in his decision. See Gilliam Decl. at Ex. at MMM 146:24. However, to dispel any notion that Escorbores was forced out by Talley, Escorbores has provided a sworn affidavit to the court in which he states that he withdrew his application because of personal commitments and was not influenced by Talley. See Silverman Decl. at Ex. MM.
Greene also argues in support of her allegation of disparate treatment that she was more qualified for the position. Greene does not dispute that Farnetti had " longevity in the District," having served as an Assistant Principal for six years, twice as long as she had. Rather, Greene argues that one can infer discrimination from the fact that Farnetti did not have experience in the EHS program areas and later had difficultly handling a state audit and a riot with stabbings. This argument is simply unavailing. " An employee's own assessment of [her] work performance is insufficient to establish pretext." Stevens v. New York, *22 (S.D.N.Y. July 20, 2011).
Finally, " courts in this circuit have noted that diversity in a defendant's staff undercuts an inference of discrimination." Subramanian, *23 (E.D.N.Y. Nov. 20, 2003). As previously noted, from 2004 to 2011, the District hired nineteen minority individuals as principals and assistant principals, although none, as Greene points out were hired as the Principal of the Evening High School. Defs. 56.1 Statement at ¶ 93. Of these nineteen individuals, ten individuals appear to be African-American. Id . at ¶ 94. In addition, from 2008 to 2011, the District employed twenty-three females as principals or assistant principals. See Silverman Decl. at Ex. OO, Resp. 2.
In sum, Greene has not submitted any evidence that the defendants' reasons for their decisions to recommend her termination or deny her a promotion were merely pretextual. Accordingly, the undersigned recommends that Greene's Title VII race, gender and religious discrimination claims be dismissed.
3. Greene's Retaliation Claim
The defendants also seek summary judgment with respect to Greene's retaliation claims. In her complaint, Greene contends that the defendants retaliated against her after she complained of " race" discrimination and " continued said retaliation after [she] complained about disparate treatment based on the disciplinary action taken against her and her forced retirement." Complaint at ¶ 119. Specifically, Greene stated in her February 20, 2009 rebuttal letter to Jones, " I believe this incident is a pretext to obtain my early retirement for discriminatory reasons." Gilliam Decl. at Ex. Y. She also alleges that the community complained about her discrimination at the November 24, 2008
board meeting. In her memorandum, Greene adds that she complained about discrimination in a meeting with Jones, Lange and O'Brien. She says that, as a result of these complaints, the defendants " significantly limit[ed] her duties and responsibilities and creat[ed] a hostile work environment."  Id . at ¶ 120.
To establish a prima facie case of retaliation, a plaintiff must show that: (1) she participated in an activity protected under Title VII; (2) the employer was aware of her participation in the protected activity; (3) the employer took adverse action against her based on her protected activity; and (4) there was a causal connection between the protected activity and the adverse action taken by the employer. Kessler v. Westchester County Dep't of Social Servs., 461 F.3d 199, 206 (2d Cir. 2006). The " protected activity" element of a retaliation case turns upon whether the employee has protested an unlawful employment practice, within the meaning of Title VII. Wimmer v. Suffolk Co. Police Dep't, 176 F.3d 125, 135, (2d Cir. 1999).
The record is devoid of evidence that the defendants limited Greene's duties or responsibilities after she complained about discriminatory behavior. In her deposition, Greene avers that she was not allowed to attend an ELS meeting with state representatives or to take a course in the computer department. Silverman Decl. at Ex. D, 120:18-121:8. However, there is no evidence to support her testimony or explain why she might have been excluded from those two events. Although Greene contends that Bracco told her she could not attend the ELS meeting, Greene does not recall if Bracco said why and neither Bracco nor O'Brien have any recollection of her ever complaining that she was not allowed to attend meetings, functions or workshops. Id . at Ex. L, 54:7-23; Ex. K, 73:8-25. Greene also does not recall when she was notified that she could not attend a computer class or whether it was after she had already submitted her resignation. Id . at Ex. D, 123.
With regard to the hostile work environment, Greene explained at her deposition that " somebody [at work] said, 'Don't use your phone because it's tapped.' It just became a very hostile work environment." Id . at Ex. D, 121:6. However, she does not recall who told her not to use the phone or whether it was said to her in
person. Moreover, she never complained about the incident. Id . at 125. She also contends that Bracco " became somewhat distant," she became less involved in the ELS program, and that her job became stressful because she couldn't get coverage if she need a day off without getting permission from central administration. However, at the same time, she admits that she became less involved in the ELS program after she had resigned and that prior to the incident she hadn't taken off days. Id. at 125-30, 131-32. This is not the type of conduct that is considered to be " severe or pervasive enough to create an objectively hostile or abusive work environment." Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002)(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).
In short, Greene's Title VII retaliation claim is not supported by sufficient evidence, and thus, the undersigned recommends that it be dismissed.
C. Greene's Section 1981 Claim
In her fifth cause of action, Greene contends that the defendants violated 42 U.S.C. § 1981 in that they treated her differently than other similarly situated employees as evidenced by (1) the determination of Lange and Jones that she exercised poor judgment and endangered the welfare of a minor, which resulted in their decision to discipline her and seek her termination and (2) the decision of Jones, Talley, Pace, Coleman and Jimenez to force her retirement and thereby eliminate her from consideration for a promotion or tenure. Complaint at ¶ ¶ 132-134. Greene further contends that the Board and the District had knowledge of Talley's racial animus and failed to take appropriate measure to disavow such unlawful conduct. Id . at ¶ 135.
Section 1981 provides that:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981. As a threshold matter, " Section 1983 provides the exclusive remedy for violation of rights guaranteed under § 1981 in a claim against a state actor." Gladwin v. Pozzi, *16-17 (S.D.N.Y. Dec. 10, 2010), aff'd 403 Fed.Appx. 603, (2d Cir. Dec. 20, 2010). Here, the District and the individual defendants are state actors. See Carter v. City of Syracuse Sch. Dist., *55 (N.D.N.Y. Mar. 19, 2012). As such, Section 1981 claims asserting vicarious liability against municipalities must be analyzed in accordance with the principles laid down in Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)." Burke v. Deer-Park Union Free School Dist., *14 (E.D.N.Y. Feb. 3, 2011). Under Monell, a municipality can only be held liable if " its policy or custom, whether by its lawmakers
or by those whose edicts or acts may fairly be said to represent official policy, inflicts the complained injury." Monell, 436 U.S. at 694. Where such a claim is made, the plaintiff must allege facts showing that the official " had final policy making authority in the particular area involved. Id . Greene has failed to set forth evidence plausibly suggesting that there was a custom, practice or policy of discriminating against employees based on race, gender or religion. Moreover, even if there was a basis for a Monell claim, as discussed supra, Greene has also failed to set forth sufficient evidence that she was treated differently from similarly situated individuals with regard to either her discipline or the denial of her promotion, and thus, the court recommends that the Section 1981 claim against the defendants be dismissed.
D. Greene's Section 1983 Claim
Greene's Section 1983 claim mirrors the Section 1981 claim. Greene contends that the District and the Board's decision to subject her to unwarranted discipline, to force her retirement, to deny her consideration for tenure and to deny her a promotion on account of her race violated her rights to Equal Protection. Complaint at ¶ ¶ 142-144. Again, for the reasons discussed above, summary judgment on the plaintiff's Section 1983 claim is appropriate and the court recommends that the claim be dismissed.
A copy of this Report and Recommendation is being served by the Court on all parties. Any objections to this Report and Recommendation must be filed with the Clerk of the Court within 14 days. Failure to file objections within this period waives the right to appeal the District Court's Order. See 28 U.S.C. § 636 (b) (1); Fed.R.Civ.P. 72; Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996).