United States District Court, S.D. New York
OPINION AND ORDER
NELSON S. ROMAN, District Judge.
Plaintiff Hui Altman, a school teacher by trade, commenced the instant action pro se against her former employer, the New Rochelle Public School District ("District"), former supervisor Juan Mendez ("Mendez"), the Superintendent of the District, Richard Organisciak ("Organisciak"), and the Assistant to the Superintendent for Human Resources, Reza Kolahifar ("Kolahifar") (collectively, "Defendants"), seeking monetary damages for unlawful termination. In her complaint, Plaintiff alleges that Defendants discriminated against her based on her age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and based on her national origin in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17. Plaintiff also alleges wrongful termination in violation of Article 23 of the Universal Declaration of Human Rights.
Defendants now move to dismiss the complaint, pursuant to Federal Rule of Civil Procedure 12(b)(4) and (b)(6), for judgment on the pleadings pursuant to Rule 12(c), and/or to convert their 12(b)(6) motion to dismiss into a motion for summary judgment pursuant to Rule 12(d), asserting there is no genuine dispute of material fact and Defendants are entitled to judgment on Plaintiff's discrimination claims as a matter of law. Defendants served upon Plaintiff a "Notice to Pro Se Litigant Who Opposes a Rule 12 Motion Supported By Matters Outside the Pleadings, " along with the full text of Federal Rule of Civil Procedure 56, as required by Local Civil Rule 12.1. Defendants aver that Defendant District was never served with process, that Plaintiff cannot make out a prima facie case of either age or national origin discrimination, that the Complaint fails to state a claim due to after-acquired evidence, and that Plaintiff cannot show Defendants' stated reasons for terminating her employment are pretext for discrimination. To the extent Defendants' motion relies upon materials outside the pleadings, the motion is treated as a motion for summary judgment. For the following reasons, Defendants' motion is granted in part and denied in part.
I. THE FACTS
The facts are gleaned from the Complaint, affidavits, and exhibits submitted with this motion, and are not in dispute except where noted.
Plaintiff, born in 1958, is a native of China. On or about May 20, 2010, while employed as a part-time Mandarin Chinese teacher in a middle school in White Plains, New York, Plaintiff applied for a full-time Mandarin Chinese teaching position in the District's schools by submitting a cover letter and resume. On June 25, 2010, she submitted a formal application to the District. In the application and on her resume, Plaintiff listed previous part-time positions with Ossining High School and the White Plains position, and previous full-time positions teaching English or English as a Second Language ("ESL") at Monroe College, Westchester Community College, and the New York City public schools. On this formal application, Plaintiff represented that she had never been fired from any employment or denied tenure or reappointment. Mendez, who supervises the District's World Languages Department, affirms that he recommended Plaintiff for the Mandarin teaching position with the District. On July 29, 2010, the District's now-retired assistant superintendent for human resources sent Plaintiff a letter informing her that she would be recommended for the position, "subject to the approval of the Superintendent of Schools [Organisciak] and the Board of Education." (Savoiardo Decl. Ex. G.) Plaintiff's appointment was to be effective September 1, 2010, through September 1, 2013, during which time she would be a probationary teacher-i.e., she would not be tenured for those three years. Plaintiff accepted the position. She was approximately 52 years old.
Plaintiff's employment with the District involved teaching Mandarin at two elementary schools and one middle school. The Complaint alleges that Mendez, Plaintiff's supervisor, made remarks during her employment that evince age discrimination. For instance, he allegedly told Plaintiff that, since the other Chinese teachers were "very young and ha[d] a lot of fresh/new ideas of teaching, " Plaintiff should "go to their classes to learn some new teaching methods from them." (Compl. at 6.) Plaintiff's testimony at a 50-h hearing corroborates this allegation, as she stated that Mendez told her the other Chinese teachers "just graduated from NYU, " were "very fresh, " had "new knowledge, " and Plaintiff "should learn from them." (Savoiardo Decl. Ex. D, at 64:7-9.) Mendez also allegedly suggested to Plaintiff that she should hold a Chinese New Year celebration at her house because the other Chinese teachers "are young and don't have a family here in the U.S." (Compl. at 6.)
Mendez, as Plaintiff's supervisor, conducted both formal and informal classroom observations of Plaintiff. He affirms that he provided support and guidance for the professional development of teachers within his department, including Plaintiff. He avers that he conducted three formal classroom observations each of the two years Plaintiff was employed and provided her copies of the performance reviews with his written comments. In each review, Mendez wrote a description of class activities followed by comments and recommendations for improvement. Generally, the reviews contained both positive and negative feedback. Plaintiff and Mendez signed all except the final formal review.
In the review of an October 20, 2010, middle school Mandarin 1A class, Mendez commented that "Ms. Altman's warm personality contributes to a comfortable setting in which students feel comfortable learning and participating in the class, " "she has shown to be a caring teacher who has much to offer her pupils, " and she "demonstrates knowledge of the target language." (Mendez Aff. Ex. A, at 2-3.) In the same review, however, Mendez wrote that the "lesson was not well organized or suitable in terms of appropriateness and readiness for a Mandarin 1A class, " that the warm-up activity "was a passive exercise with vague instructions not conducive to language learning, " that Plaintiff should "[c]hange seating arrangements to separate students who distract each other, " and that Plaintiff should "be sure to use closure and assess student learning" at the end of a lesson. ( Id. at 2.) Mendez also recommended that Plaintiff meet with another teacher, Ms. Lumin Huang, "at least once a week to maintain proper scope and sequence of the Mandarin 1A curriculum...." ( Id. ) Plaintiff testified that Ms. Huang was in her twenties at the time. (Savoiardo Decl. Ex. D, at 62:4-9.)
The review of a January 26, 2011, kindergarten class was entirely positive. Mendez described the lesson as "well structured and... suitable in terms of appropriateness, readiness, and content...." (Mendez Aff. Ex. B, at 2.) He also wrote that "transitions from activity to activity served to keep her students focused on the interactive exercises, " and that Plaintiff "was addressing [students] in Mandarin and encouraging them to use the language throughout the lesson." ( Id. )
The review of an April 14, 2011, fourth grade class was again mixed. Mendez reiterated that Plaintiff's "transitions from activity to activity served to keep her students focused, " that she "was addressing [students] in Mandarin and encouraging them to use the language throughout the lesson, " and that the lesson was "suitable in appropriateness, readiness, and content" for the class. (Mendez Aff. Ex. C, at 2.) However, Mendez commented that the "lesson did not seem to have a definite structure and it felt as if it was put together in the spur of the moment." ( Id. ) He noted, among other things, that Plaintiff did not present written forms of the language to connect with the sounds and that exercises "did not transition well and... did not seem to have a connection." ( Id. ) Mendez then prepared a "Summative" on April 15, 2011, noting Plaintiff's commitment "to continuing with her professional growth." (Mendez Aff. Ex. D.) At that time, he recommended Plaintiff for a second year of probationary service.
Mendez again observed Plaintiff during the second year of her employment. In his review of an October 19, 2011, fourth grade class, Mendez commented, as before, that Plaintiff "was addressing [students] in Mandarin and encouraging them to use the language throughout the lesson." (Mendez Aff. Ex. E, at 2.) However, he also wrote that Plaintiff needed "significant improvement" in the areas of "Pedagogical Preparation and Knowledge of Student Development." ( Id. ) He noted that "the problem with the lesson was... the lack of structure of the lesson itself, " as it "did not provide a framework for her students and contributed to some of the off task behavior and restlessness they showed." ( Id. ) Mendez then instructed Plaintiff to "utilize [an] attached lesson format to help develop [her] lessons." ( Id. )
In the review of a December 15, 2011, fourth grade class, Mendez reiterated the positive comment that Plaintiff "was addressing [students] in Mandarin and encouraging them to use the language throughout the lesson." (Mendez Aff. Ex. F, at 2.) He also noted that Plaintiff had "listened to some of our recommendations, ... had a written lesson plan... and timed her activities providing her students with a structured lesson." ( Id. ) He commented further that "[t]he lesson was suitable in terms of appropriateness and readiness for a Mandarin grade 4th class." ( Id. ) Other positive comments included that Plaintiff's "oral and written expression[s] were clear and expressive, the students were all engaged[, ]... [c]lassroom routines and procedures are clear and function smoothly[, and] students are aware of, and attentive to, what is expected of them." ( Id. at 3.) However, Mendez was not satisfied that "most of the activities required little interaction amongst students and were mostly dominated by [Plaintiff]." ( Id. at 2.) He wrote that "the pair activity presented to the class was not appropriate and did not lend itself to student interaction." ( Id. ) He suggested an alternative pair activity and commented that it was "pivotal" for Plaintiff to explain each student's role in cooperative activities. ( Id. ) Finally, Mendez apparently attached two documents to aid Plaintiff in planning cooperative learning activities. ( Id. at 2, 4.)
In the review of a March 22, 2012, fourth grade class, Mendez commented that Plaintiff "made some progress in her lesson development and implementation, " but that "her lack of consistency and thoroughness continues to hinder her professional growth." (Mendez Aff. Ex. G, at 2.) He found the lesson "not suitable in terms of readiness and content" for the class. ( Id. ) He noted that "activities did not connect and were left undone, " that Plaintiff "did not provide closure for the exercises, " and that Plaintiff "did not spend any time breaking down for the class the vocabulary or phrases being used." ( Id. ) According to Mendez, Plaintiff "did not get to explain... the tones of the characters or explain the pinyin form of it." ( Id. ) He wrote further:
On this specific occasion, the lesson seemed to be geared only for those students who had a better grasp of the language. I observed, as a group sitting in the back seemed completely lost as the exercises were too much for them, and as they became desperate and went off task, [Plaintiff's] response was not the most appropriate as she verbally lashed out at some of them in front of their peers. In my observation, it was obvious that they were overwhelmed with a task beyond their proficiency. It is pivotal that [Plaintiff] create lessons that are differentiated in order to assure that all of levels of proficiency [sic] in her class are being addressed.
( Id. ) Mendez ended by saying, "[k]nowing [Plaintiff], I am certain that she will continue working on improving her instructional time." ( Id. ) Neither Mendez nor Plaintiff signed this written review. ( Id. at 1.) Plaintiff testified that she never received this written evaluation, but did meet with Mendez after the observation and had a "difficult argument" about the problems Mendez purportedly observed. (Savoiardo Decl. Ex. D, at 78:16-79:5, 80:2-8.)
Mendez affirms that a few weeks prior to the March 22, 2012, observation, he conducted an informal observation of Plaintiff's fourth grade class. (Mendez Aff. ¶ 17.) He purportedly observed that (a) Plaintiff had all the minority students sitting in the back of the room and (b) Plaintiff was only interacting the two or three students in the front who were proficient enough to keep up with her lesson while ignoring the rest of the class. ( Id. ) He states that when an African-American girl raised her hand and said she did not understand Plaintiff's instructions, Plaintiff said the girl never understood and then continued with the students in the front. ( Id. ¶ 18.) Mendez purportedly expressed to Plaintiff his concerns that the lesson was not level-appropriate, that the lesson "did not incorporate activities to teach all the student levels, " and that the comment to the African-American girl was inappropriate. ( Id. ¶ 19.) Mendez claims further that Plaintiff stated the girl who raised her hand was a special education student who never understood what was going on. ( Id. )
On March 23, 2012, Kolahifar wrote to Plaintiff asking her to meet with him and Mendez at his office on March 29, 2012. On March 26, 2012, Mendez apparently prepared an annual teacher's evaluation report in which he did not recommend Plaintiff for a continuation of probationary service. Neither he nor Plaintiff signed the document. Mendez attached to the annual evaluation the comments sections of the six formal observations, and a "Summative" dated March 26, 2012, which states:
At this juncture, formal and informal visits to [Plaintiff]'s classroom have demonstrated a series of pedagogical areas that are in need of remediation. Lack of student-centered challenging activities and insufficiently prepared lessons have compromised, at times, adequate instruction for her pupils. These and other issues have been brought to [Plaintiff]'s attention during post-observation and other individual conferences. [Plaintiff] has been provided with support to assist her on lesson plan development and classroom management. During the last two years I have met with [Plaintiff], assisting her in lesson planning.
To date, [Plaintiff] has demonstrated no significant longitudinal professional growth. Therefore, I do not recommend the continuance of probationary service for [Plaintiff].
(Mendez Aff. Ex. I, at 4.) Plaintiff testified that she had never seen this Summative before her 50-h hearing. (Savoiardo Decl. Ex. D, at 82:16-83:13.) Mendez claims that Plaintiff refused to sign it. (Mendez Aff. ¶ 22.)
On March 29, 2012, Plaintiff appeared in Kolahifar's office to meet Kolahifar and Mendez as requested. According to Plaintiff's 50-h hearing testimony, Kolahifar told Plaintiff they were not going to give her tenure and that she was terminated. (Savoiardo Decl. Ex. D, at 85:13-17.) When Plaintiff asked Kolahifar why, he said to "ask Juan Mendez"; when she asked Mendez, he said, "You don't prepare for your class, " an assertion which Plaintiff contested. ( Id. at 85:17-86:3.) Plaintiff asked Mendez how he could do this to her, since she had a mortgage and a child in college. (Pl.'s Ex. C., at 2; Mendez Aff. ¶ 28.). At some point, Plaintiff told Mendez he was inconsistent, as he would say she was an "upstanding teacher" and a "great teacher" but he would also "say bad things about" her. (Pl.'s Ex. C, at 2; Savoiardo Decl. Ex. D, at 89:6-10.) Also at the meeting, Plaintiff received a letter from Organisciak stating that he intended "to recommend to the Board of Education... that [her] employment be terminated and [her] appointment with the [District] discontinued... effective June 30, 2012." (Savoiardo Decl. Ex. I.) According to Plaintiff, Kolahifar stated that he wanted Plaintiff to be professional and finish the job until the last day of school. (Pl.'s Ex. C, at 2; Savoiardo Decl. Ex. D, at 88:19-89:4.) She ...