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Tolbert v. Smith

United States Court of Appeals, Second Circuit

June 24, 2015

RICKEY L. TOLBERT, Plaintiff-Appellant,
v.
RICHARD SMITH AND ROCHESTER CITY SCHOOL DISTRICT, Defendants-Appellees

Argued: January 7, 2015.

Page 428

[Copyrighted Material Omitted]

Page 429

The plaintiff, Rickey Tolbert, appeals from the judgment of the United States District Court for the Western District of New York (Siragusa, J.) dismissing his complaint. The district court granted summary judgment dismissing the plaintiff's claims for defamation, discrimination, and hostile work environment, inviolation of federal and state anti-discrimination laws and New York State common law.

We affirm the judgment of the district court in all respects, except that we vacate the judgment dismissing the discrimination claims and remand as to those claims for further proceedings.

DAVID ROTHENBERG, Greiger and Rothenberg, LLP, for Plaintiff-Appellant Rickey Tolbert.

MICHAEL E. DAVIS (Edwin Lopez-Soto, General Counsel, on the brief), Rochester City School District, Law Department, for Defendants-Appellees Richard Smith and Rochester City School District.

Before: LYNCH AND CARNEY, Circuit Judges, and KOELTL, District Judge.[*]

OPINION

Page 430

John G. Koeltl, District Judge:

The plaintiff, Rickey Tolbert, is an African-American former teacher at John Marshall High School (" John Marshall" ) in the Rochester City School District (the " School District" ). He appeals from a judgment of the United States District Court for the Western District of New York (Siragusa, J.). The district court granted summary judgment dismissing the plaintiff's claims of discrimination and hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (" Title VII" ); the New

Page 431

York State Human Rights Law (" NYSHRL" ), N.Y. Exec. Law § 296 et seq.; and 42 U.S.C. § 1981. The district court also dismissed the plaintiff's defamation claim.

On appeal, Mr. Tolbert contends that he identified sufficient facts to establish a prima facie case of racial discrimination, to show a hostile work environment, and to support a claim for defamation. For the reasons explained below, we affirm the judgment of the district court except with respect to the discrimination claims, as to which there are genuine disputes as to material facts that preclude summary judgment based on Mr. Tolbert's prima facie case of discrimination.

I.

A.

Mr. Tolbert was a culinary arts teacher at John Marshall from 2006 to 2009. He was a non-tenured, probationary teacher, who taught three culinary arts classes a day.

Because he was a probationary teacher, Mr. Tolbert's classes were observed by John Marshall administrators. The reviewing administrator would then write a " Formal Teacher Observation." The Formal Teacher Observation Form includes a space for written comments and also a " Summary of Performance" section that asks the evaluator to check one of five boxes. The available boxes are " Distinguished," " Proficient," " Meets Professional Standards," " Below Professional Standards," and " Unsatisfactory."

At the end of each school year, Mr. Tolbert also received an annual evaluation by a John Marshall administrator.[1] The Annual Evaluation Form includes eighteen categories. The evaluator is asked to check one of five boxes for each category--which are the same as those on the Formal Teacher Observation Form--and provide written comments. The evaluator must also provide an " Overall Summary Rating," again by checking one of five boxes.

During his second year teaching, Mr. Tolbert consistently received marks of " Proficient" or " Meets Professional Standards" on his evaluations. Laurel Avery-DeToy, an administrator at John Marshall, conducted Mr. Tolbert's Formal Teacher Observations and his annual evaluation for the 2007-2008 school year. Mr. Tolbert has no complaints about these reviews.

B.

Before the start of the 2008-2009 school year, defendant Richard Smith was hired to replace Joseph Munno as the principal of John Marshall. According to Mr. Tolbert, this is when his employment situation started to sour.

Mr. Tolbert alleges that he did not receive a budget to purchase supplies for his classes. The size of his classes also grew. In the two previous years, he had around sixteen to eighteen students per class. In the fall of 2008, each of his classes had at least twenty-eight students--despite a collective bargaining agreement provision limiting at least one of his classes to twenty-four students. After Mr. Tolbert complained, the John Marshall administrators eventually reduced the number of students in his classes.

Mr. Tolbert also claims that many Individualized Education Plan students were placed in his classes, and he was not given the assistance of a paraprofessional. The defendants insist that due to budget cuts, a number of paraprofessional positions were eliminated. As a result, the Special Education Administrator determined that Mr. Tolbert would not be assigned a paraprofessional

Page 432

for the 2008-2009 school year. The defendants also note that twenty-three percent of the John Marshall students had Individualized Education Plans.

Mr. Tolbert also experienced some problems with the cleanliness and the maintenance of the kitchen in his classroom (known as the " Jurist Room" ). In the fall of 2008, the Monroe County Department of Health and the New York State Department of Health identified various health code violations. As a result, Principal Smith closed the kitchen. The parties dispute the cause of these violations. Mr. Tolbert insists that the janitorial staff did not clean the kitchen regularly, and the defendants contend that Mr. Tolbert and his students were--in part--at fault.

But these problems were not new. In December 2007, Mr. Tolbert complained to school officials that the custodial staff was not cleaning the kitchen properly. And in March 2008, the New York State Department of Health identified a number of health code violations in the kitchen.

C.

Mr. Tolbert also alleges that Principal Smith made racist remarks. In the fall of 2008, Mr. Tolbert volunteered to cook for a homecoming breakfast. When discussing what food would be served, Mr. Tolbert alleges that Principal Smith asked him: " Do you only know how to cook black, or can you cook American too?" JA 332.

In October 2008, a student in Mr. Tolbert's class alleges that Principal Smith asked her if she was learning anything from Mr. Tolbert. In January 2009, during a conversation about reopening the kitchen, Principal Smith asked the same student " how [she] expected to learn if all [she] was learning to cook was black food." JA 450. When asked to define " black food," Principal Smith allegedly said " that what he meant was American food." Id. And another one of Mr. Tolbert's students alleges that in January or February of 2009, Principal Smith ...


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