United States District Court, S.D. New York
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
C. FRANCIS IV MAGISTRATE JUDGE
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.
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).
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).
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).
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).
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.
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).
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).
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).
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