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United States v. New York City Department of Education

United States District Court, S.D. New York

January 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant. LISA-ERIKA JAMES and HEATHER HIGHTOWER, Plaintiffs,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, MINERVA ZANCA, individually, and JUAN MENDEZ, individually, Defendants.

          Bryan S. Arce, Esq. Erica L. Shnayder, Esq. Arce Law Group PC

          Danielle M. Dandrige, Esq. Jessica Wisniewski, Esq. New York City Law Department

          HONORABLE LEWIS A. KAPLAN, U.S.D.J.

          REPORT AND RECOMMENDATION

          JAMES C. FRANCIS IV MAGISTRATE JUDGE

         The plaintiffs, Lisa-Erika James and Heather Hightower, bring this action against the New York City Department of Education (the "DOE"), Juan Mendez, and Minerva Zanca alleging discrimination and retaliation in violation of 42 U.S.C. § 1981, 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, N.Y. Exec. Law § 296 et seq. (the "NYSHRL"), and the New York City Human Rights Law, N.Y. Admin. Code § 8-107 et seq. (the "NYCHRL") . The defendants move to dismiss the Amended Complaint in part. For the reasons set forth the below, I recommend that their motion be granted in part and denied in part.

         Background

         This case involves allegations that Minerva Zanca, the principal of Pan American International High School (“PAIHS”), discriminated against African-American teachers at the school. (Amended Complaint (“Amend. Compl.”), ¶¶ 13, 24). Ms. Zanca was hired as the principal of PAIHS in August 2012. (Amend. Compl., ¶ 22). Ms. James and Ms. Hightower were two of three African-American teachers employed at PAIHS during the 2012-2013 school year. (Amend. Compl., ¶¶ 9, 19, 23, 47-48). Mr. Mendez was the Superintendent of High Schools for District 28, which gave him supervisory authority over Ms. James and Ms. Hightower. (Amend. Compl., ¶ 15-16).

         Ms. Hightower was hired as a science teacher at PAIHS in the fall of 2010. (Amend. Compl., ¶ 19). She consistently received satisfactory performance ratings before Ms. Zanca was hired. (Amend. Compl., ¶ 21). During the 2012-2013 school year, Ms. Zanca and Anthony Riccardo, the assistant principal at PAIHS, gave Ms. Hightower several unsatisfactory lesson ratings. (Amend. Compl., ¶¶ 28, 40). Before observing their lessons, Ms. Zanca told Mr. Riccardo that she planned to give Ms. Hightower and John Flanagan, another African-American teacher at PAIHS, unsatisfactory ratings. (Amend. Compl., ¶ 29). Ms. Hightower and Mr. Flanagan were both untenured, meaning an unsatisfactory rating for the academic year could justify terminating their employment with the DOE. (Amend. Compl., ¶¶ 23, 27). Ms. Zanca told Mr. Riccardo that four unsatisfactory lesson ratings was “the magic number” to have a teacher fired. (Amend. Compl., ¶ 29).

         In a November 13, 2012, meeting with Ms. Zanca and Mr. Riccardo, Ms. Hightower was told that she would be required to meet with Mr. Riccardo to improve her teaching skills. (Amend. Compl., ¶ 35). After Ms. Hightower left the meeting, Ms. Zanca told Mr. Riccardo, “You better not make her a better teacher.” (Amend. Compl., ¶ 35). Ms. Zanca also made racially insensitive comments about Ms. Hightower and Mr. Flanagan. She told Mr. Riccardo that Ms. Hightower “looked like a gorilla in a sweater, ” and asked, “What is with [her] fucking nappy hair?” (Amend. Compl., ¶¶ 36, 38). She also made multiple comments about the appearance of Mr. Flanagan's lips. (Amend. Compl., ¶¶ 37, 39).

         Ms. Zanca and Mr. Riccardo continued to issue Ms. Hightower unsatisfactory lesson ratings through the winter and spring of 2013. (Amend. Compl., ¶ 40). In April 2013, Mr. Riccardo gave Ms. Hightower a satisfactory lesson rating, after which Ms. Zanca accused Mr. Riccardo of “sabotaging her plan” and instructed school safety officers to remove him from the building. (Amend. Compl., ¶ 41). In June 2013, Ms. Zanca gave Ms. Hightower and Mr. Flanagan unsatisfactory ratings for the 2012-2013 academic year. (Amend. Compl., ¶ 42). They were the only two teachers out of twenty-seven at PAIHS to receive an unsatisfactory rating for the year. (Amend. Compl., ¶¶ 23, 42). In July 2013, Ms. Hightower and Mr. Flanagan were discontinued from their employment with the DOE because of those ratings. (Amend. Compl., ¶ 43).

         Ms. James began working as a teacher for the DOE in the fall of 2003. (Amend. Compl., ¶ 44). She was hired by PAIHS in August 2011 to establish a theater program at the school. (Amend. Compl., ¶ 47). In addition to teaching daily theater classes, her job duties included producing and directing two plays and four in-house class presentations each year. (Amend. Compl., ¶ 48). Unlike Ms. Hightower and Mr. Flanagan, Ms. James had tenure, meaning she could not be terminated for unsatisfactory ratings alone. (Amend. Compl., ¶ 51). Rather than giving her unsatisfactory ratings, Ms. Zanca sought to undermine her theater program.

         On February 12, 2013, PAIHS students were scheduled to perform their first theater production of the academic year at Bard College. (Amend. Compl., ¶ 53). Hours before they were scheduled to go on stage, Ms. Zanca's secretary informed Ms. James that the school would not pay for “vital costs” associated with the production, including compensation for the light board operator, sound board operator, and photographer. (Amend. Compl., ¶ 53). Ms. Zanca refused to speak with Ms. James directly about the refusal to pay, and Ms. James decided to pay the costs herself to avoid canceling the show. (Amend. Compl., ¶ 53). After the February production, Ms. Zanca informed Ms. James that the school could not pay the overtime hours needed to hold after-school rehearsals for the spring production even though the funds were already allocated. (Amend. Compl., ¶ 57). The spring production was canceled as a result. (Amend. Compl., ¶ 57). In March 2013, a PAIHS parent informed Ms. James that Ms. Zanca had disparaged Ms. James' theater program at a School Leadership Team meeting and accused her of spending funds without authorization (Ms. Zanca had in fact authorized the spending). (Amend. Compl., ¶ 56).

         In June 2013, Ms. Hightower, Ms. James, and Mr. Flanagan filed complaints against Ms. Zanca with the DOE's Office of Equal Opportunity (“OEO”). (Amend. Compl., ¶ 62). In retaliation for the complaints, Ms. Zanca instructed school safety officers to bar them from school premises during the summer of 2013, even though Ms. James was still employed by PAIHS. (Amend. Compl., ¶ 63).

         Ms. James was advised by her physician to take a two-week leave of absence because of stress caused by Ms. Zanca's conduct. (Amend. Compl., ¶ 71). After her leave of absence, she sought a transfer to a different school within the DOE. (Amend. Compl., ¶ 74). In the fall of 2013, she found a position at the Manhattan Theatre Lab High School (“Manhattan Lab”), a school that was scheduled to close in 2015. (Amend. Compl., ¶ 76). This led her to be designated as an “excess employee” when Manhattan Lab was closed. (Amend. Compl., ¶ 76). Ms. James no longer works for the DOE but “may still be” on their payroll. (Amend. Compl., ¶ 77). No African-American teachers remained at PAIHS after Ms. James' transfer and Ms. Hightower's and Mr. Flanagan's termination. (Amend. Compl., ¶ 68).

         The plaintiffs filed charges with the United States Equal Opportunity Employment (the “EEOC”) in or around August 2013. (Amend. Compl., ¶ 5). The EEOC found probable cause to believe that the DOE engaged in discriminatory conduct and referred the charges to the United States Department of Justice (the “DOJ”). (Amend. Compl., ¶ 6). On June 9, 2016, the DOJ filed a lawsuit against the DOE in connection with the discriminatory conduct alleged by the plaintiffs. (Amend. Compl., ¶ 7). The plaintiffs filed this action on June 22, 2016, and on October ...


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