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Herling v. New York City Department of Education and Carlston Gray

United States District Court, E.D. New York

April 23, 2014


Saul D. Zabell, ZABELL & ASSOCIATES, P.C., Bohemia, NY, Attorneys for Plaintiff.

Shawn Matthew Clark, ZACHARY W. CARTER, Corporation Counsel for the City of New York, New York, NY, Attorney for Defendants.


JOHN GLEESON, District Judge.

Russell Herling, a high school physical education teacher, commenced this action against his employer, the New York City Department of Education ("DOE"), and Carlston Gray, his direct supervisor, under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. ("Title VII"), New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq., and New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107 et seq. Herling alleges that defendants violated Title VII and the city and state human rights laws by discriminating against him on the basis of his race and religion, and by retaliating against him for complaining about this discrimination to the school superintendent and his union. Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. I heard oral argument on April 10, 2014. For the reasons stated below, defendants' motion is granted as to plaintiff's retaliation claim and denied as to all of plaintiff's other claims.


A. Factual Allegations

Herling's amended complaint alleges the following facts, which I assume to be true for purposes of this motion. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).

Herling, a Caucasian, Jewish male, started working for the DOE in September 2001 as a physical education teacher at the William E. Grady Career/Technical High School ("Grady High School") in Brooklyn. Am. Compl. ¶ 13-15. At all times relevant to this action, Herling was directly supervised by the school's principal, defendant Carlston Gray, who is African-American and not Jewish. Id. ¶ 16.

On January 23, 2007, Herling's grandmother passed away. Id. ¶ 42. Herling requested permission to miss work for several days, and presented Gray with a note from the funeral director in support of this request. Id. ¶¶ 42-43. Gray rejected the note and instead demanded Herling provide a card from a religious "Mass" in order to excuse his absences, id. ¶ 44, even though Gray knew that Jewish funerals do involve "Mass" cards. Id. ¶ 46. Gray later requested, in lieu of a Mass. card, a copy of Herling's grandmother's driver's license and birth certificate in order to approve Herling's time off, which Herling could not provide. Id. As a result, after Herling took these days off, Gray disciplined him by issuing him an evaluation of "unacceptable" ("U"). Id. ¶ 47. Similarly situated non-Jewish employees were not required to provide this type of documentation to attend the funeral of a family member. Id. ¶ 48.

At some point during his employment, Gray issued Herling a "U" because Herling presented a doctor's note to excuse time off that did not contain Herling's medical identification number. Id. ¶ 33. Such information is normally not required to be on a doctor's note. Id. ¶ 34. Similarly situated African-American employees were not required to provide detailed documentation to substantiate medical absences and were not issued negative evaluations due to medical absences corroborated by a doctor. Id. ¶ 35. For example, during the 2009-2009 school year, a similarly situated African-American coworker, Dawn Watson, [1] was absent for six weeks and was issued a satisfactory ("S") rating. Id. ¶ 36.

On February 4, 2008, Gray disciplined Herling for wearing a yarmulke, and ordered Herling to remove it, in spite of being told by Herling that it was required by his faith. Id. ¶¶ 49-50. Gray told Herling to instead wear a kuffi, indicating to Herling that he would not be disciplined for wearing a kuffi instead of a yarmulke. Id. ¶ 51. Gray threatened to discipline Herling - including calling for Herling's termination - if Herling continued to wear a yarmulke instead of a kuffi. Id. ¶ 52. Additionally, on at least one occasion in March 2009, while Herling was eating at the kosher food table, Gray sarcastically yelled at Herling in front of other employees that "If you don't eat the kosher food, you will go to Hell." Id. ¶ 57.

In April 2008, Herling complained about Gray's discriminatory conduct to Superintendent Linda Waite. Id. ¶ 53. Waite informed Gray about Herling's complaint, and Gray called Herling on his personal phone and told him not to contact Waite again, "or else." Id. ¶ 54. Herling also complained to his union representative and union delegate around this time, and on numerous occasions these union officials complained to Gray about his discrimination against Herling. Id. ¶ 55.

On March 5, 2009, Herling was reprimanded and received a write-up from Gray. Id. ¶ 39. Gray alleged that Herling had failed to provide tutoring services to students during his mandatory assigned tutoring period. Id. Herling, however, had been ready and willing to provide tutoring, but no students had chosen to utilize his tutoring services on the day in question. Id. An African-American teacher, Helema Pierce, also did not have students present during her tutoring session at the same time that day, but she did not receive a reprimand or a write-up. Id. ¶ 40.

In September 2009, Gray again reprimanded Herling and issued him a write-up for passing a student who Gray alleged had been absent 37 times. Id. ¶ 37. In fact, the student had only been absent seven times, and Herling believes that his African-American co-workers who also issued the student a passing grade were not disciplined. Id. ¶ 38.

On January 21, 2010, Herling was required to attend a disciplinary meeting with Gray because Gray alleged that Herling had left school grounds without first signing out. Id. ¶ Herling had signed out before leaving the school. Id. Herling alleges that on February 25, 2010, Gray altered Herling's time and attendance record to reflect that Herling was late more times than he actually was, which led to Herling being disciplined by Gray and by the DOE Office of Labor. Id. ¶¶ 24-25. Ultimately, based on the allegedly altered records, Herling received a disciplinary memorandum in his personnel file stating that he was late 17 times over the 2009-2010 school year. Id. ¶ 27. Similarly situated African-American co-workers who were late more often than Herling were not subjected to similar discipline. Id. ¶ 29.

On June 18, 2010, Gray issued Herling a "U" on Herling's Annual Professional Performance Review for the 2009-2010 school year. Id. ¶ 59. Herling had received "S" ratings for each of the preceding ten school-years. Id. ¶ 70. As a result of receiving the "U" on his annual performance review, for the period of July 1, 2010, through June 2011, Herling's pay was frozen by the DOE, and Herling was barred from all coaching positions and from conducting per-session after-school activities and summer workshops. Id. ¶ 61. Herling applied for numerous after-school per-session activities, but Gray awarded these positions to less qualified African-American substitute teachers. Id. ¶ 62. This "U" rating for the 2009-2010 school-year put Herling in jeopardy of losing his teaching license because a second consecutive "U" rating results in the loss of license. Id. ¶ 65.

Herling "regularly complained" about Gray's discrimination and retaliation against him. Id. ¶ 66. These complaints led to a conference with DOE officials being scheduled on October 13, 2010, which Gray and Herling were supposed to attend. Id. Gray, however, did not appear. Id. ¶ 67. Herling again complained to the DOE about Gray's actions, and the conference was rescheduled for January 11, 2011. Id. ¶ 69. At this conference, Herling complained to DOE officials and union representatives about Gray's discriminatory treatment and retaliatory actions against Herling. Id. Gray "gave his final decision to issue [Herling] a U' rating" at this conference. Id. ¶ 70.

In September 2011, Herling's teaching assignment was changed and he was scheduled to lose his position during a DOE "transformation" of Grady High School. Id. ¶ 73. During the transformation, teachers with current "U" ratings were slated to lose their positions and teachers with a "U" rating in the last five years were to be relegated to substitute teacher positions. Id. However, Herling remained employed with the DOE and was not demoted to a substitute teaching position. Id.

B. Procedural History

On January 13, 2011, the U.S. Equal Employment Opportunity Commission ("EEOC") received a Charge of Discrimination from Herling. ECF No. 13, Clark Decl. Ex. A, at 2. Thereafter, Herling received a letter from the U.S. Department of Justice, dated July 9, 2013, informing him of his right to sue. Am. Compl. Ex. 1. Herling filed the instant action in the Supreme Court of New York, County of Nassau, on August 12, 2013. On September 23, 2013, the defendants removed the action to the Eastern District of New York. ECF No. 1. The case was originally assigned to Judge Leonard Wexler in our Central Islip courthouse, but by order dated November 22, 2013, Judge Wexler directed that the case be reassigned to the Brooklyn courthouse, and I was assigned as the judge on November 25, 2013. See ECF Order Reassigning Case, Nov. 25, 2013. Defendants filed this motion to dismiss on January 17, 2014. ECF No. 12. I heard oral argument on April 11, 2014.


A. The Standard of ...

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