United States District Court, E.D. New York
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For the Plaintiffs: Steven A. Morelli, Esq., Paul Bartels, Esq., Of Counsel, The Law Offices of Steven A. Morelli, P.C., Garden City, NY.
For the Defendant: Brian S. Sokoloff, Esq., Melissa L. Holtzer, Esq., Of Counsel, Sokoloff Stern LLP, Carle Place, NY.
MEMORANDUM OF DECISION AND ORDER
ARTHUR D. SPATT, United States District Judge.
On December 7, 2011, the Plaintiffs Betsy Benedith, Sherwyn Besson, and Kenneth Smith (collectively the " Plaintiffs" ), current and former employees of the Malverne Union Free School District (the " District" ), commenced this action against the District, James Brown (" Brown" ), James Hunderfund (" Hunderfund" ), Rosalinda Ricca (" Ricca" ), and Vincent Romano (" Romano" ) pursuant to 42 U.S.C. § 1981, 42 U.S.C. § 1983, the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (" Title VII" ), the New York State Human Rights Law (" NYSHRL" ), and the Nassau County Human Rights Law (" NCHRL" ), raising claims for, among other things, employment-related discrimination and a hostile work environment on the basis of race.
On January 31, 2014, the Defendants filed a single notice of motion pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 56 for summary judgment dismissing the complaint in its entirety as to each Plaintiff. Alternatively, the Defendants moved pursuant to Fed.R.Civ.P. 21 and/or 42(b) for severance of the claims and to hold separate trials. With the Court's permission, the Defendants filed a separate memorandum of law as to each Plaintiff.
For the reasons set forth, the motions for summary judgment are granted in part and denied in part. The alternative motions for severance and separate trials are granted.
Unless stated otherwise, the following facts are drawn from the parties' respective 56.1 statements and the exhibits attached. Triable issues of fact are noted.
A. Facts Relevant to All Plaintiffs
1. The District's Anti-Discrimination Policy
The District has an anti-discrimination policy, which provides that employees should make any complaint of discrimination to the District's Title IX officer or they may follow the procedures in place for filing a grievance under the collective bargaining agreement negotiated between the Malverne Teachers' Association and the Board of Education. The anti-discrimination policy provides for two procedural stages and one appellate stage for any investigation into a discrimination complaint.
Romano, who is white and was at all relevant times the Assistant Principal of the Middle School, confirmed in his deposition that (1) he did not know if the District had such a policy and (2) he had received no training regarding anti-discrimination sensitivity.
Hunderfund, the District's Superintendent, who is also white, had not reviewed the anti-discrimination policy in the three years prior to his deposition, which was taken on March 8, 2013. As to Ricca, the Chairperson of the District's Math Department, he indicated that he did not know if the District had an anti-discrimination policy.
B. Facts as to the Plaintiff Betsy Benedith
1. Benedith's Service as Dean of Students of the Middle School
In 2007, Benedith, who is black, was hired by the District as the Dean of Students in the Howard T. Herber Middle School (the " Middle School" ). Romano and Hunderfund were a part of the hiring committee that was involved in Benedith's hiring.
Steven Gilhuley, who is white and was the Middle School's Principal, supervised Benedith when she was the Dean. Gilhuley gave Benedith favorable performance evaluations during the time she spent at the Middle School. In this regard, Gilhuley found Benedith to be " effective with her management and interaction with the staff," and commented that " [s]he did a good job." (Gilhuley Dep., at 39.) That said, Benedith felt that Gilhuley excluded her from certain conferences on the basis of her race, but she never reported this belief to anyone.
2. Benedith's Promotion to Assistant Principal of the High School
At some point, Hunderfund and Richard Banyon, the District's Deputy Superintendent, encouraged Benedith to apply for the Assistant Principal position in the High School, which she did. Theadra McCrae, the District's Pupil Personnel Supervisor, Ricca, and Brown, the High School Principal, who is black, interviewed Benedith for the Assistant Principal position. Hunderfund recommended Benedith's appointment as Assistant Principal in the High School to the District's Board of Education. In 2008, the Board of Education approved Benedith's appointment.
As Assistant Principal, Benedith observed teachers and planned assemblies, award ceremonies, parent-teacher conferences, and staff development. During this period, Brown was Benedith's direct supervisor.
At the High School, the other Assistant Principal position was later filled by Romano.
Benedith alleges that although she was promoted to Assistant Principal at the High School before Romano was so promoted, Romano was given seniority credits over Benedith. However, it appears Romano had more seniority because he previously held the position of Assistant Principal in the Middle School.
Further, Benedith alleges that while both Assistant Principal positions in the High School were supposed to be equal in rank, in fact, such was not the case. In this regard, Benedith maintains that Brown unfairly preferred Romano over her. For example, Brown gave Benedith an office on a different floor from his and Romano's office. By contrast, Brown and Romano's offices are both on the second floor, less than a hundred yards apart.
Benedith testified that, when discussing assignments and seniority in July 2008, Brown told her: " I just need you to know that if you notice that I show preference to Mr. Romano, don't take it personal. You know, we are in a White District. They are in control. They are prepping him to become the Principal and I don't want to give the staff members an impression that I am favoring you over him because you're Black." (Benedith Dep, at 85.)
In a memorandum from Benedith to Brown, dated March 8, 2011, Benedith wrote: " During the course of the work/school day, it may become challenging to remain in constant communication especially if I am not on the same floor." (Benedith's Exh. E.) Benedith continued: " I realize that being on a different floor from the main/principal's, attendance, assistant principals, and guidance office, does not allow me the opportunity to give input/feedback, receive pertinent information, and/or be part of the decision making that would make me a stronger administrator and allow me to be considered a part of the administrative team." (Id.).
Brown admitted that Benedith " may have" expressed to him that her room assignment created communication issues. (Brown Dep., at 58-59.) Brown testified that he too was concerned about the communication issues resulting from the office assignments, and that he even " expressed it to her" himself. Brown also admitted that " Romano and my office have a close proximity, so [we] naturally had an opportunity to see each other." (Id.)
In addition, Romano initially had a full-time secretary, while Benedith only had two part-time secretaries. Benedith's secretaries split the day in half, apparently resulting in missed messages and problems processing paperwork. Benedith complained about this to Brown. Following this complaint, the District assigned Benedith a full-time secretary. However, Benedith did not have a full time secretary as Assistant Principal for two years, until 2010.
Benedith also alleges disparate treatment between Romano and her in other aspects of work. For example, each of the District's schools takes turns organizing a Martin Luther King Day Event. Benedith organized the event in February 2009, when it was the High School's turn. However, two or three hours before the event, Hunderfund disapproved the program pamphlet created by Benedith. The pamphlet had previously been approved by Brown. As a result, Benedith paid for the banner, the construction paper, markers, and miscellaneous supplies out of her pocket. Instead of finding out why Hunderfund did not approve the pamphlet, Benedith admitted that she simply " changed the color to make it appear as if I changed something" and made new copies. (Benedith's Dep, at 230-31.) Ultimately, Benedith did not receive a letter of commendation in her personnel file for her efforts
organizing the Martin Luther King Day event.
By contrast, Romano received approximately $1,000 from the District for his project; the college fair. The District has paid for Romano's college fair every year he has held it. Romano received a letter of commendation in his personnel file for his efforts organizing the college fair.
Benedith also alleges that Romano undermined her authority in certain regards. For instance, although Romano did not have the authority to discipline Benedith, in June 2010, Romano reprimanded Benedith in front of other teachers regarding a directive she gave them during a state examination. Romano allegedly reprimanded Benedith while on speakerphone, in the presence of two or three social studies teachers, who were all white. Benedith believes that Romano was discriminating against her on the basis of her race when he chided her in front of their white colleagues. Benedith allegedly reported this incident to Brown.
In October 2010, Benedith was in charge of administering a PSAT examination at the High School. On the day of the examination, Brown and Romano attempted to contact Benedith with questions about the examination; however, they could not reach her. Benedith maintains that she did not receive any calls from either Brown or Romano.
Benedith also admitted that she was absent on the day of a Regents examination and that her secretary did not know what to do in Benedith's absence. Benedith's secretary did not know what to do because Benedith did not give her any instructions prior to her absence. Benedith acknowledged that an administrator and two other people are supposed to be present to count Regents examinations on the day of the test. Benedith had no idea what happened in her absence, although this was her responsibility.
According to Benedith, in her absence, the Principal was responsible for the administration of examinations. Benedith maintains that, even if Benedith had provided her secretary with instructions in her absence, the secretary could not have given directives to chairpersons as to the administration of the test, as this responsibility ultimately fell to Brown.
3. The Alleged Hostile Work Environment Against Benedith
Benedith asserts that, as the Assistant Principal at the High School, she was subjected to a hostile work environment -- primarily, created by Brown -- on account of her race, even though the two individuals were both black.
For instance, Benedith attended at least 10 professional development courses during her employment with the District, including courses on administrative leadership and constructing a master schedule. According to Benedith, Brown verbally denied many of Benedith's requests to attend professional development conferences before she even had a chance to fill out written request slips. Benedith believed Brown denied her requests based on her race. Benedith felt this way, in part, because when she approached Brown, he would say, " No. Don't go with your head' You know, moving -- making the head gestures. You know circular motions just remind me that I'm from the ghetto." (Benedith Dep, at 203.) Brown also commented to Benedith, " Y'all know you got attitude when y'all from the project." (Id.)
There is also evidence that Brown called Benedith a " nigger" to her face regularly from 2008 to 2011. On July 7, 2008, Brown allegedly commented to Benedith when he told her that she " was a black woman, [she] wasn't going to be liked and
at the end of the day, [she] is still [a nigger]." (Id. at 266.) Brown also told Benedith " you are Black, you are a woman, you are smart and you are beautiful, and they (White staff members) are not going to like you because of that, and at the end of the day, they are going to look out for each other and at the end of the day, you are always going to be a nigger, and when you wake up in the morning, you are always going to be Black." (Id. at 279.) Between 2008 and 2011, Brown would often also remind Benedith that she " can do whatever [she] wants, it doesn't matter how good it is, but you [can't] change who you are, referring to her race." (Id. at 280.)
Another instance occurred on November 2, 2010, after Brown and Benedith were involved in a verbal altercation with certain white administrators, including Romano. During the incident, Romano asked Brown if he knew how to spell a certain word, to which Brown responded: " I am not going to stoop down to your level." (Id. at 167.) Following this comment to Romano, Brown and Benedith apparently walked to Browns' office where Brown told Benedith: " This is what I am talking about. At the end of the day, you're always going to be the [nigger]. It's the all White boys club and that's all they see when they look at you." (Id. at 127.)
In April 2011, Brown allegedly told Benedith: " Don't come in here complaining like these other [bitches]. Don't come here with your head -- the head shaking like you know you ghetto girls do -- the girls from the ghetto do." (Id. at 172.) Brown said this to Benedith " whenever I would go in and say something." (Id.) However, Benedith told no one at the District that she felt Brown was discriminating against her on the basis of race.
At Brown's deposition, he stated: " All Blacks suspect racism . . . racism is always suspected with us whenever it involves someone white or whatever. Some are more vociferous about it than others, but it does exist. I am sure you will agree. And we often talk about it amongst ourselves." Brown further testified that, in the United States, " white folks" are the " dominants" and in power, while Blacks are " not in the power position." (Brown Dep., at 45-46.)
4. The Denial of Tenure for Benedith and Her Termination from Employment
In November 2010, Brown told Benedith that the District was considering eliminating her position for budgetary reasons. Conversely, Benedith alleges that the position was eliminated because she is black, as the remaining non-black Administrators received tenure and their positions were not eliminated. Banyon, the Deputy Superintendent, confirmed that, as a result of these personnel decisions, ten of the eleven District Administrators are white, as are all members of the Central Administration. Benedith also notes that minorities compose 15% of the total certified staff at the District, including teachers and administrators, at the District.
Brown did not recommend Benedith for tenure. Brown indicated in a March 2011 Mid-Year Performance review that while Benedith was popular with her students, he " would like to have seen more professional growth in leadership over the past two years." (Benedith's Exh. M) However, Benedith notes that Brown did not evaluate her in 2009-2010 and only evaluated her in 2011 " because she was up for tenure" (Brown Dep., at 56.); Romano did not receive an evaluation in the 2011-2012 school year; Romano received tenure as an Assistant Principal at the conclusion of the 2009-2010 school year; and Romano did not receive a mid-year evaluation during the year he received tenure.
On March 25, 2011, Banyon gave Benedith a letter which stated that she would not be receiving tenure. This letter advised her that Benedith's probationary period would end on June 24, 2011. Also, by letter dated March 25, 2011, Hunderfund notified Benedith in writing that, at the upcoming May 10, 2011 Board of Education meeting, he would be recommending that she not be granted tenure.
Benedith, along with her union representative, McRae, requested a reason for her termination and a meeting with Hunderfund regarding the same. The Defendants contend that, at the meeting, Hunderfund offered to ask the Board to grant Benedith tenure if she submitted an irrevocable letter of resignation. Benedith, on the other hand, maintains that Hunderfund only offered to ask the Board to grant Benedith tenure if there were no community protests at the Board meeting. McCrae told Benedith to " give them their letter and they will grant you tenure." (Benedith's Dep, at 401.) Benedith claims that she did not provide a letter of resignation because it would have disqualified her from unemployment benefits.
Benedith did not ask to make her case for tenure to the Board. Benedith was never advised by her union representative that she was entitled to make a case for tenure before the Board. In addition, Benedith did not look into whether she could have requested a fourth probationary year in lieu of termination. Rather, Benedith asserts that she was not aware that she could request a fourth probationary year.
On May 10, 2011, the Board of Education voted to terminate Benedith's employment. Benedith notes that Hunderfund recommended that the Board terminate Benedith's employment; that the Board " rubber stamps" Hunderfund's decisions regarding the " hiring and firing of persons; " (Hunderfund Dep, at 186.) and that Hunderfund's recommendation was based in part upon Brown's recommendation that Benedith's employment be terminated.
On May 18, 2011, Hunderfund notified Benedith in writing that the Board of Education had accepted his recommendation.
After Benedith's termination, her job duties as Assistant Principal were assumed by an individual with the surname Benfante, who is white. Benfante worked in Benedith's old office, and performed her former responsibilities such as: (1) keeping attendance for grade levels; (2) keeping track of cuts; (3) proctor scheduling; (4) planning honor roll celebrations; and (5) administering parking permits.
After Brown learned of Benedith's termination in June 2011, Brown recommended that Benedith apply for positions in Roslyn, Freeport, Roosevelt, and commented with respect to the Roslyn position, " That will probably be a good fit for you because there is a little -- there is a section where they have minorities ... so you should apply." (Benedith's Dep., at 221.)
C. Facts as to the Plaintiff Sherwyn Besson
From September 2004 to the present, Besson, who is black, has been employed as a teacher in the Business Department of the High School. During the 2005-06 school year, he acquired tenure status. Besson is the father of two minor children, daughter A.B. and son I.B., who at various times have been students in the District.
1. Alleged Discrimination Against Besson by Kathy Varol
Besson alleges that Kathy Varol, the head of the District's Business Department, discriminated against him by questioning him about his students' passing
percentages from 2006 to 2010. On the other hand, Besson alleges that Varol did not press white teachers about their students' passing percentages. Besson acknowledges that these white teachers had students with higher passing percentages than the Besson students. However, according to Besson, in the District, black teachers felt more pressure to pass students than did white teachers.
Varol assigned teachers the following ratings based on their performance: Unsatisfactory (lowest), Satisfactory, Good, Very Good, and Excellent. According to Besson, Varol showed him a chart that reflected the observation ratings that she gave to all of the District's business teachers. According to this chart, two white teachers received " U" unsatisfactory ratings. Varol never gave Besson a " U" rating. However, Besson alleges that his ratings have remained the same at " good" throughout his tenure at the District, falsely implying no improvement, while his white colleagues' scores have stayed consistently at " very good." (Defs' Exh. U.)
Besson concedes that Varol never made any comments to Besson about his race.
2. Alleged Discrimination Against Besson Regarding Administrative Duty
Within the District, all teachers are required to perform some kind of administrative duty. This administrative duty can be hall duty or supervising a study hall class. Some teachers have alternative duties, like chairing committees, helping to enforce District policies, or accepting lead teacher assignments. A chairperson typically requests that a teacher be relieved of an administrative duty so that the teacher could assist with these other tasks. However, Besson alleges that Romano makes the final decision as to which teachers are exempt from administrative duty.
No chairperson or administrator ever contacted Romano and requested that Besson be relieved of his administrative duty. For example, when Rachel Ruisi, who is white, was performing administrative duties enforcing the eligibility policy, she was spared from the administrative duty list. In the 2009-2010 school year, when Besson was performing similar duties enforcing the eligibility policy, he remained on the administrative duty list.
Besson asserts that white teachers are not always required to perform these administrative duties. Besson further contends that black teachers had more students in their study hall classes than did white teachers. Besson complained to his union about this allegedly discriminatory administrative assignment schedule.
3. Alleged Discrimination Against Besson As the Soccer Coach
Besson was also the coach of the District's Varsity Soccer team from 2005 to 2009 or 2010. The Board of Education and the Malverne Teachers' Association set the coaches' stipends. However, Besson claims that Hunderfund has input as to personnel salaries. During his tenure as boys' soccer coach until 2010, Besson alleges that he was paid less than white coaches, such as Kim Rossi who coached volleyball, which Besson asserts is much a " less demanding" sport than boys' soccer. (Rule 56.1 Statement, at ¶ 33.2) The Defendants note that the coaches' stipends are fixed in the collective bargaining agreement.
If Besson needed funds for his team, the protocol was for him to request it from the District's Athletic Director and Business Manager. When Besson was the soccer coach, Brenda White was the Athletic Director and Ray Neblitt was the Business Manager, both black. However, Hunderfund
confirmed that the Athletic Director reports to Brown, who has the authority to " veto" and deny requests for funds from the Athletic Director.
During the 2008-2009 and 2009-2010 school years, Besson spent $2,000 out of his pocket on uniforms for his soccer team. Prior to purchasing the uniforms, he requested new uniforms from the Athletic Director, but was told there were no funds available. Hunderfund testified that he did not believe that it was appropriate that Besson paid for the uniforms, and is not aware of any other coaches who have paid for their team's uniforms.
4. The Alleged Retaliation Against Besson for His Decision to Send His Daughter, A.B., to Private School
At the end of the 2007-2008 school year, A.B. was the 8th grade Valedictorian at the Middle School. Hunderfund and Brown repeatedly recommended to Besson that he enroll A.B. at the High School. According to Besson, on one occasion, Hunderfund's body language suggested that he was trying to intimidate Besson into sending A.B. to the High School. Besson further asserts that when he made it clear to Hunderfund that he would not be sending his daughter to the High School, but rather to a private Lutheran High School located within the District, Hunderfund was not happy with his answer.
During the 2008-2009 school year, A.B. had access to District-funded school busing to the Lutheran High School. On July 14, 2009, Besson applied for busing for the 2009-10 school year. The deadline to apply expired on April 1, 2009. In August 2009, Besson received notification that his request was untimely, and, therefore, transportation would not be provided to A.B.
However, Besson alleges that he is aware of other students whose applications were sent later, as late as August 2009, yet still secured public busing to their private schools that year. In particular, Besson alleges that another student, Nicole Zimmerman, who is white, submitted a late transportation application to the District, but the District nevertheless provided her with transportation.
As a result of the denied application, Besson was forced to drive his daughter to and from the Lutheran High School, requiring the forfeiture of his position as the boys' soccer coach. Besson allegedly lost $5,000 in income as a result of his forfeiture of the boys' soccer coach position, and was subsequently unable to obtain another paying extra-curricular activity. Besson appealed the District's decision to the New York State Education Department. The New York State Education Department found in the District's favor.
5. The Alleged Retaliation for Publicly Criticizing Hunderfund
At an October 13, 2009 Board meeting for the District, Besson gave a speech, during the " public comment" time, challenging the District's appointment of Hunderfund as Superintendent. At the time, Hunderfund was serving as the interim superintendent. In his speech, Besson argued that Hunderfund's past ethical violations, high salary, and lack of background with minority students suggested that he was not the best choice for the district, and that a good faith effort should be made to search for an alternate superintendent.
Several of the administrators present felt that some of Besson's statements were factually incorrect. Some administrators also felt that Besson should have addressed these concerns with Hunderfund in private. Hunderfund confirmed that he
was insulted and disappointed at Besson's remarks at the Board meeting, and disappointed in Besson's character. (Hunderfund Dep., at 290-91.)
Shortly after the Board meeting, the Union President, Bonnie Dresca, allegedly told Besson that Hunderfund was not happy with him, and directed her to tell Besson not to do it again. Dresca advised Besson to expect retaliation. Brown apparently made similarly-themed comments to Besson.
Within a week of the meeting, the District teachers received an email from Hunderfund asking them not to speak out against the administration. Some administrators apparently felt that Besson should have addressed his concerns with Hunderfund in private.
Besson alleges that, after his October 2009 speech before the Board, he began noticing changes in the way he was treated at work. For instance, he noticed that necessary equipment would not be present in his classroom; that he was receiving less support from the school information technology department for the computers he used to teach his students; and that responses to his correspondence with school administrators were delayed more than before.
6. Alleged Retaliation Against Besson's Son, I.B.
In 2009, Besson's son, I.B., attended the District's Davison Elementary School (the " Elementary School" ). At some point, Besson learned that I.B. was being taken from his classes for reading lessons, thereby causing him to fall behind in other subjects. Besson alleges that he was informed that the order to remove I.B. came from " higher up." Besson complained to the Principal of the Elementary School, Edward Tallon, after which Tallon subsequently pulled I.B. out of the separate reading group.
Following this incident, Besson sent I.B. to private school, at a significant cost. Besson implies that this incident was an example of retaliation against him.
7. The Alleged Discrimination/Retaliation in Besson's Terms of Employment
In April 2011, Besson learned that his position would be abolished for the 2011-2012 school year. Ultimately, the District partially re-instated his position to half-time for that school year. This partial reinstatement came with a substantially reduced salary and no health insurance or pension benefits.
Besson filed a grievance challenging the partial elimination of his position, but that grievance was denied by Hunderfund and the Board. In early 2010, Besson was informed by an unnamed third-party that Hunderfund said he would " punish" him, " even if it meant shutting down the whole Business Department." (Besson Dep., at 255.)
Eventually, the District assigned another business teacher, Young, who is white, to teach classes that Besson had previously taught. Young had more seniority than Besson, although Besson alleges that he was more proficient in teaching the relevant classes.
As justification for partially eliminating Besson's position, the Defendants point to the fact that New York State does not require students to take business courses to obtain a regents diploma, nor did the District require students to take business courses to graduate. By contrast, New York State requires that students take Math, Science, Social Studies, English, Foreign Language, Physical Education, and Art to graduate with a Regents diploma.
The Defendants assert that the fact that business courses are not required makes them more vulnerable to cuts than courses that are required. Indeed, Banyon confirmed that Hunderfund was " part of the process" of cutting the business education teachers' salaries budget by $225,000. (Banyon Dep., at 195.)
After the complaint was filed in this action, the District reinstated Besson to a full-time position for the 2012-2013 school year. However, Besson was again reduced to part-time for the 2013-2014 school year.
D. Facts as to the Plaintiff Kenneth Smith
The District hired Smith, who is black, as a teacher in 2002 in the Middle School. Smith interviewed with Ricca for this position. During the hiring process, Ricca observed Smith teach a lesson. Ricca recommended that the District hire Smith.
According to Smith, on November 4, 2004, Ricca assigned Gilhuley and an individual with the surname Scricca to observe him. Smith believes that Ricca discriminated against him when assigning these two teachers to observe him, as opposed to observing Schroeder, a white teacher, and other white teachers. Smith notes that Scricca is known for giving unsatisfactory evaluations.
At some point, Ricca recommended that Smith be granted tenure, which he acquired in 2005.
Smith taught a sixth grade honors class while he was at the Middle School. Smith confirmed that he did not teach an honors class during his first year at the Middle School.
In the Fall 2005, at Smith's request, he was transferred to the High School.
1. Alleged Discrimination in Assignment of Classes, Conduct of Observations, and Access to Resources
Smith alleges that, in the High School from 2005 to 2007, he was assigned only lower-level and non-honors mathematics courses. Smith contends that the District did not assign him any honors classes to teach until the 2007-2008 school year. Smith considers " honors" courses to be the same as higher-level courses that are taught to more advanced students. By contrast, Ricca distinguishes between honors courses and courses that are taught to older or more advanced students. Ricca told Smith that it is her personal practice not to give any ...