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Tolbert v. Smith

United States District Court, W.D. New York

March 7, 2014


David Rothenberg, Esq., Geiger and Rothenberg, LLP, Rochester, NY, for plaintiff.

Michael E. Davis, Esq., Rochester City School District Department of Law, Rochester, NY, for defendants.


CHARLES J. SIRAGUSA, District Judge.


Siragusa, J. Plaintiff Rickey Tolbert ("Plaintiff") commenced this lawsuit against Defendants Richard Smith ("Smith") and the Rochester City School District ("the District"), (collectively referred to herein as "Defendants"). In that regard, he alleges that Defendants intentionally discriminated against him on the basis of his race, created a hostile work environment, and committed defamation in connection with his employment as a culinary arts teacher at John Marshall High School ("Marshall") in Rochester, New York. Plaintiff brings his five claims pursuant to 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964 ("Title VII"), New York Human Rights Law ("NYHRL"), and New York common law. Am. Compl. ¶¶ 40-71, Feb. 11, 2010, ECF No. 10.

Presently before the Court is Defendants' motion for summary judgment, filed on December 15, 2011, ECF No. 18. For the reasons that follow, Defendants' motion is granted, and the amended complaint is dismissed in its entirety.


The following are the undisputed facts of this case, viewed in the light most favorable to Plaintiff as the non-moving party.

John Marshall High School, 2006-2009

Plaintiff is an African-American male who graduated from the Culinary Institute of America in 1981. In September, 2006, the District hired Plaintiff to teach culinary arts at John Marshall High School ("Marshall"). The culinary arts facility at Marshall consisted of a two-sided room with one-half being a traditional classroom and the other half set up as a restaurant/kitchen. Defendants contend that the entire facility was referred to as the "Jurist Cafe, " or the "Jurist Room." However, Plaintiff states that the Jurist Cafe was also the name of a project planned by the culinary arts program and the Maplewood Neighborhood Association. Tolbert Dep. (Def. Ex. 21) at 39, 42-43, Dec. 14, 2010, ECF No. 18-4; William Lilly & Mike Coniff ltr to Jean-Claude Brizzard, Jun. 4, 2009, ECF No. 21-2 (Pl. Ex. 7) at 1.

When Plaintiff started at Marshall in the 2006-2007 school year, his supervisor was Principal Joseph Munno ("Munno"). Laurel Avery-DeToy ("Avery-DeToy"), Academy Director, [1] began working at Marshall during Plaintiff's second year at the school, in 2007-2008. Avery-DeToy conducted formal teacher observations ("FTOs") of Plaintiff during the 2007-2008 school year.

Munno retired mid-year in November, 2007, and two acting Principals were successively assigned to complete the 2007-2008 school year at Marshall. Smith then became Principal at Marshall during the 2008-2009 school year. When Smith accepted the assignment, Marshall had a record of poor performance. The New York State Department of Education had designated Marshall as a school in need of improvement-to raise graduation rates and student achievement in the areas of language arts and mathematics. According to Smith, unless the school improved, it was at risk of being shut down by the State. Plaintiff denies this characterization, claiming that Marshall was ranked poorly only in one area. Smith Decl. ¶ 5, Dec. 12, 2011, ECF No. 18-1; Munno Dep. at 48, Feb. 14, 2012, ECF No. 21-1. Marshall, as well as all schools in the District, faced budget cuts for the 2008-2009 school year. Plaintiff testified that he was aware of the educational shortcomings at Marshall and heard that the school was scheduled to be closed. Tolbert Dep. at 362.

During the 2008-2009 school year, there were changes in the class sizes and student assignments for the culinary arts program. According to Defendants, those changes were dictated by Marshall counselors and the school's Registrar to meet the needs of the students and the school. Smith Decl. ¶¶ 14-15. Plaintiff, on the other hand, testified that Smith oversaw everything at Marshall, and that it is impossible that Smith was not involved in the class size and student assignments for culinary arts. See Tolbert Dep. at 261, 346-47, Feb. 14, 2012, ECF No. 21-1 (Smith oversaw the breakfast menu, including whether grits or home fries were served). After Plaintiff raised the issue of the culinary arts class sizes being too large, changes were made and students were transferred out of his classes so that the class sizes conformed to the collective bargaining agreement limit of twenty-four students per class. Plaintiff goes on to state that during 2008-2009, his class sizes were never as small as they were in previous years. Formal Teacher Observation forms, Nov. 14, 2007, Feb. 8, 2008 & Feb. 27, 2008 (Pl. Exs. 64, 67, 68), Feb. 14, 2012, ECF No. 21-2.

Also in 2008-2009, a "paraprofessional" or teacher aide position was eliminated from the culinary arts program. Defendants state that this was done by the Special Education Administrator in response to the budget cuts that reduced the total number of paraprofessionals at the school and also to best meet the needs of special education students at Marshall. Smith Decl. ¶ 16. In Plaintiff's opinion, the position was cut at Smith's direction. Tolbert Dep. at 261, 346-47.

With regard to special education students, those with Individualized Education Plans, or "IEPs", were registered and assigned to the culinary arts program with the approval of the Special Education Administrator and in accordance with the student's IEP. A teacher is not required to have a special education certification in order to teach classes with IEP students. Plaintiff asserts that Defendants were, "dumping kids in my class, " causing a disciplinary problem, and that students with no interest in culinary arts were being placed in his class. Tolbert Dep. at 261-63. Plaintiff reported his concern about having special education students in his classes to the Registrar. He was advised that although some students were designated as 6:1:1 and 8:1:1, [2] they could be in a non-core class without a paraprofessional. However, Plaintiff's complaint was not that special education students were being placed in his class, but that the special education students who were being placed had no interest in culinary arts. Tolbert Dep. 261-63.

According to Smith, he did not provide a budget for any teacher or classroom program. Rather, the procedure was for a teacher to submit a request for supplies to the main office staff, who would then obtain the requested items. Smith Decl. ¶ 20. Plaintiff claims, on the other hand, that he had several conversations with Smith during which Smith assured Plaintiff that he would be provided with a budget for the culinary arts program. Tolbert Dep. at 250. Plaintiff testified that he understood that the Principal at Marshall allocates money, and teachers could make requests for supplies. Id. at 266.

Ultimately, Smith made a recommendation to eliminate the culinary arts program at Marshall due to additional budget cuts he was directed to absorb for the 2009-2010 school year. Smith set forth the considerations for discontinuing the program in an undated memorandum. Def. Ex. 18. Plaintiff disputes this, claiming that Smith had begun dismantling the program long before the budget cuts.

Sanitation Issues in the Jurist Room

Throughout Plaintiff's three-year employment at Marshall the Jurist Room, as well as the rest of the school, had rodent and sanitation problems. During Plaintiff's first year (2006-2007), he spoke with an individual from Exodus Exterminators about the rodent issue. In the same year, the Monroe County Health Department cited issues in the Jurist Room facilities, preceding Smith's tenure as Principal. Tolbert Dep. (Def. Ex. 21) at 60, 148. Plaintiff denies Defendants' characterization of the rodent problem, stating that they had "stayed on top of it" in previous years and the only issues were "facilities issues" and not specific to the Jurist Room. Tolbert Dep. at 60, 148.

In Plaintiff's second year, the Jurist Room still had issues with cleanliness and repairs well as the rodent problem. In December 2007, Plaintiff complained that he had contacted the custodial staff sixty days earlier to request repairs that remained unaddressed. The Monroe County Health Department performed an inspection of the Jurist Room in March 2008, before Smith became Principal at Marshall. Violations included unclean slicers and greasy and food-splattered walls, but the Jurist Room remained open. In the fall of 2008, Smith shut down the kitchen facility in the Jurist Room based on violations listed in the Monroe County Department of Health inspection report. A Department of Health report dated January 5, 2009, indicated that Smith had shut down the kitchen and in order for it to re-open for cooking, the Department of Health must be called.

Defendants state that those issues stemmed from both the janitorial staff and Plaintiff and his students failing to properly clean and maintain the facility. Smith Decl. ¶ 23, 44. Plaintiff contends that neither he nor his students were responsible for cleaning the facility, only for cleaning and sanitizing some of the Jurist Room's equipment and cookware, such as smallwares, appliances, cooking surfaces, and cabinets. Tolbert Dep. at 56. The parties do not dispute that students were responsible for cleaning and sanitizing of smallwares, which included chef knives, paring knives, slicers, pots, pans, a food processor, and large equipment, which included refrigerators, stoves, oven tops, countertops, inside and outside of cabinets, slicers, and a three-bowl sink for small wares.

Plaintiff maintains that the sanitation problems that arose during his third year at Marshall were due to the janitorial staff failing to properly clean the classroom. Tolbert Dep. at 55-56; Pl. Ex. 56. Defendants assert that Plaintiff did not work especially well with Patti Strassner, the head of the janitorial staff at Marshall. When asked if they got along or had a strained relationship, Tolbert testified that "we both stand firm on our thought processes, " but states that the two worked well together "for the most part." Tolbert Dep. at 148.

As previously mentioned, the entire school, including the Jurist Room, had a longstanding rodent problem, which preceded Smith's tenure at Marshall. The District had a contract in place with an exterminator for services to address the problem when Smith arrived at the high school. During the three years Plaintiff taught at Marshall, pest control was provided by the same outside exterminating company.

Formal Teacher Observations

The Formal Teacher Observation, or FTO, is a routine evaluation process provided for in the collective bargaining agreement between the Rochester Teachers Association and the District. The process calls for three FTOs of non-tenured teachers per school year. The observations are conducted by building-level administrators. Plaintiff knew in advance when his FTOs would occur, and who was coming to observe on that date. Tolbert Dep. at 101-02. Plaintiff contends that his third-year annual observation had been reassigned from Jason Muhammad to Avery-DeToy, and he was not given proper notice in advance of Avery DeToy's observation. Evan Wilson ltr to John Hickey (Pl.'s Ex. 52), undated, ECF No. 21-2. The evidence he submits in support of this assertion, however, only supports that he was not notified that it was Avery-DeToy who would be conducting the observation. Pl.'s Ex. 52.

Avery-DeToy conducted three FTOs during Plaintiff's second year, dated November 14, 2007, February 7, 2008, and February 27, 2008. For each of these observations, Plaintiff received an overall rating of "meets professional standards." Formal Teacher Observation forms, Nov. 14, 2007, Feb. 8, 2008 & Feb. 27, 2008 (Pl. Exs. 64, 67, 68). Avery-DeToy also performed Plaintiff's year-end evaluation, for which he received the same overall rating.

Plaintiff signed and checked both February 2008 FTO forms completed by Avery-DeToy. At a pre-conference for the February 27, 2008, FTO, Plaintiff and Avery-DeToy discussed creating student-centered, hands-on learning. Plaintiff also understood that the "workshop model" was something he was to follow for his lesson plans. Plaintiff points out that in both FTOs, Avery-DeToy noted that Plaintiff's class was in fact "student centered." Pl.'s Ex 67 & 68.

Plaintiff agreed with Avery-DeToy's recommendation that he was to improve his use of the workshop model, pursuant to the February 7, 2008, FTO. Avery-DeToy offered to work together with Plaintiff to keep using the format for future planning. Tolbert Dep. at 117-18. Plaintiff states, however, that Avery-DeToy saw Plaintiff's other lesson plans and "thought they were great." Tolbert Dep. at 111. Also in the February 7, 2008, FTO, Avery-DeToy noted "most of today's lesson was auditory, teacher giving information verbally." She gave a summary rating of "meets professional standards." Plaintiff acknowledged and signed the FTO.

Avery-DeToy completed Plaintiff's second year-end evaluation dated May 15, 2008. Plaintiff again acknowledged and signed that he agreed with Avery-DeToy's suggestions.

During Plaintiff's third and final year as a probationary teacher at Marshall in 2008-2009, Avery-DeToy conducted an FTO of Plaintiff on November 12, 2008. For this FTO, Avery-DeToy rated Plaintiff's performance as "unsatisfactory." Avery-DeToy Decl. ¶ 22, Nov. 29, 2011, ECF No. 18-2; Pl. Ex. 62. Therein, Avery-DeToy made recommendations to change or improve the way Plaintiff was teaching his class-the same recommendations she had made in all of her previous FTOs, such as encouraging Plaintiff to use the workshop model and raising the issue that Plaintiff had re-used a lesson plan. Plaintiff shared his concern with Avery-DeToy that her comments may have been written for retaliatory purposes. Tolbert Dep. 235-36, Dec. 15, 2011, ECF No. 18-4; Evaluation of September 2008-April 2009, Additional Issues, Dec. 15, 2011, ECF No. 18-4. He did not, however, tell her that he had concerns that she was treating him unfairly due to his race. Tolbert Dep. at 236.

Also during his third year, Plaintiff was formally observed by two other administrators, on January 6, 2009, and April 6, 2009. Both FTOs made recommendations for areas in need of improvement, and reported an overall rating of "meets professional standards." Def. Ex. 7 & 8.

Avery-DeToy conducted a final evaluation on April 29, 2009, and indicated a summary rating of "below professional standards." Avery-DeToy Decl. ¶27. Although he was required to sign and return his final, third-year evaluation stating whether he agreed or disagreed with the recommendation, Plaintiff did not do so, nor did he submit a rebuttal.

In addition to the critiques by Marshall administrators in Plaintiff's FTOs, Avery-DeToy and Zone Chief Susan Kauffman recommended that Plaintiff contact the Careers in Teaching program for professional support and mentoring. Plaintiff did so, and was paired with a teacher/mentor named Jeff Feinberg. However, subsequently, Plaintiff did not further pursue the mentoring program. Tolbert Dep. at 283; Evaluation for Sept. 2008-April 2009, at III, Comments (Def. Ex. 22). Additionally, Plaintiff recalls going to East High School with Avery-DeToy to observe its culinary arts program during his third year, as the program at East was considered to be very successful. Plaintiff goes on to state, however, that he was prevented from making further visits because the District would not provide him with a substitute teacher. Tolbert Dep. 200-01.

Denial of Tenure

At the conclusion of his third year, Avery-DeToy conducted Plaintiff's evaluation for a tenure recommendation. Avery-DeToy did not recommend Plaintiff for tenure, but instead recommended that he be granted a fourth year extension of probationary status. Avery-DeToy Decl. ¶ 28. Plaintiff contends that it was Smith who recommended to Superintendent Jean-Claude Brizard ("Superintendent Brizard") that Plaintiff not be granted tenure following Avery-DeToy's negative evaluations. Smith Dep. (Pl. Ex. A) at 15. Further, it was common practice for a tenure recommendation to be made following ...

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