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Berrie v. Board of Education of Port Chester-Rye Union Free School District

United States District Court, S.D. New York

May 31, 2017

GREGORY TYRONE BERRIE, Plaintiff,
v.
BOARD OF EDUCATION OF THE PORT CHESTER-RYE UNION FREE SCHOOL DISTRICT, ASSISTANT SUPERINTENDENT FRANK FANELLI, and PRINCIPAL PATRICK SWIFT, in their individual and professional capacities, Defendants.

         Howard Schragin Ann L. Moscow Sapir Schragin LLP White Plains, New York Counsel for Plaintiff

         Maurizio Savoiardo Miranda Sambursky Slone Sklarin Verveniotis LLP Mineola, New York Counsel for Defendants

          OPINION AND ORDER

          CATHY SEIBEL, U.S.D J.

         Before the Court is Defendants' Motion for Summary Judgment. (Doc. 68.) For the following reasons, the Motion is GRANTED.

         I. BACKGROUND

         The following facts are undisputed unless otherwise noted.[1]

         Plaintiff first worked at the Port Chester-Rye Union Free School District (the “District”) from 1990-1992 as a Teaching Assistant, having been recruited by Defendant Frank Fanelli. (56.1 Stmt. & Resp. ¶¶ 7-8.) In 2002, again having been recruited by Fanelli, Plaintiff began working as a physical education teacher, (id. ¶ 9), receiving tenure in 2006, (see Id. ¶¶ 218, 221). Plaintiff at some point was transferred to the Port Chester Middle School, where he currently works, (see AC ¶ 17), [2] and where Defendant Patrick Swift is principal, (Savoiardo Decl. Ex. K, at 9).[3] Swift expressed his displeasure at not having a choice in the matter, writing in an email that he was “not happy” about Plaintiff's transfer and did not want to take the “tired, hungry, and oppressed” because the Middle School had “com[e] too far to become a dumping ground.” (Schragin Decl. Ex. 31.)[4]

         A. Alleged Discriminatory Incidents

         1. Iantorno Email

         On February 2, 2013, Jeannie Iantorno, Plaintiff's colleague, forwarded an email, (Savoiardo Decl. Ex. GG (the “Iantorno Email”)), with the subject line “New Species of Man, ” containing a photograph of a minority teenager, who Plaintiff and others believed to be African American, (56.1 Stmt. & Resp. ¶ 13; Savoiardo Decl. Ex. P, at 78), with his pants worn well below the waist, accompanied by two drawings - one of a man from behind with a long back, as if his waist was where the teen in the photograph wore his pants, and the other of a skeleton with the same long back, (56.1 Stmt. & Resp. ¶ 13). Below the photograph and drawings, the email reads:

They are referred to as homo slackass-erectus created by a natural genetic downward evolution through constant spineless posturing, and spasmatic upper limb gestures, which new research has shown to cause shorter legs and an inability to ambulate other than in an awkward shuffling gait. The “drag-crotch” shape also seems to effect [sic] brain function. Expect no eye contact or verbal communication. This species receives benefits and full government care. Unfortunately most are highly fertile.

(Id. ¶ 14; Iantorno Email.) Iantorno forwarded the email to the Middle School faculty stating, “I think we have a few of these roaming the halls!!” (56.1 Stmt. & Resp. ¶ 17; Iantorno Email.) A union representative informed Iantorno the following Monday that her email was offensive to some colleagues, (56.1 Stmt. & Resp. ¶ 18), and Iantorno sent an apology email shortly thereafter to the Middle School faculty, asserting that she thought it would be humorous “since we are constantly telling our boys to pick up their pants” and that her “intention was not to stereotype or put down anyone, ” (id. ¶¶ 19-20; Savoiardo Decl. Ex. HH). Swift met with Iantorno to discuss the email and its offensiveness, and commemorated their meeting with a February 5, 2013 letter that recounted their discussion, reprimanded her and informed her that there would be an inquiry to determine whether further action was required. (See 56.1 Stmt. & Resp. ¶¶ 23-24; Savoiardo Decl. Ex. JJ.) Subsequently, Iantorno sent a follow-up letter apologizing to the District's staff, stating that she meant the email to be funny and that her “own teenage son wears his pants in this fashion.” (Savoiardo Decl. Ex. LL.)

         On February 5, 2013, Swift offered to meet with Plaintiff to discuss the email, and Plaintiff responded, “I'm good! Laughed about all of this with friends and moved on. Thanks for your concern.” (56.1 Stmt. & Resp. ¶¶ 25-26.) Plaintiff testified that he had already complained to his union representative and Fanelli about the email. (Id. ¶ 27; Savoiardo Decl. Ex. H, at 290-91.) Two days later, Plaintiff sent an email to Swift and Fanelli saying that he was “still deeply offended, ” but that it might be time “to shut this thing down, ” as “the more [Plaintiff] hear[d] about [Iantorno] . . . [i]t doesn't seem[] like she deserve[s] this [and m]aybe it's truly just a mistake?” (56.1 Stmt. & Resp. ¶ 28; Savoiardo Decl. Ex. KK.)

         2. Swift Hockey Incident

         On April 4, 2013, Swift entered Plaintiff's physical education class, saw students playing hockey and joined in. (See 56.1 Stmt. & Resp. ¶¶ 35-36.) From the opposite side of the gym from Plaintiff, Swift hit a plastic ball across the gym and struck Plaintiff in the head (the “Hockey Incident”). (Id. ¶ 36(g).) Swift said this was an accident, (Savoiardo Decl. Ex. GGG, at DEF000433), but Plaintiff maintains that Swift intentionally hit Plaintiff because of his race and in retaliation for opposing the Iantorno Email, (56.1 Stmt. & Resp. ¶ 36). After being hit, Plaintiff left the gym and went into the locker room, where Swift followed and apologized. (Id. ¶ 40.) Plaintiff stayed home for one week following the incident due to emotional distress, (id. ¶ 47), and Fanelli testified that Plaintiff told him over the phone that he did not want to go to work because he was so angry that he feared he would punch Swift, (id. ¶ 48). On April 15, 2013, after Plaintiff returned to work, he attended a meeting with Swift, Assistant Principal Byron Womack, Fanelli, Superintendent Edward Kliszus and Donna Coffin, Plaintiff's union representative, to discuss Plaintiff's concerns. (Id. ¶ 54; Savoiardo Decl. Ex. EEE, at DEF000485.) Plaintiff submitted a formal complaint against Swift via email to Fanelli three days later for “physical assault, bullying and harassment.” (56.1 Stmt. & Resp. ¶ 59; Savoiardo Decl. Ex. ZZ.)

         3. Fanelli New York Times Article

         On May 4, 2013, Fanelli sent Plaintiff a New York Times column by respected writer Ta-Nehisi Coates entitled “Beyond the Code of the Streets, ” about an instance in which the author and three friends who were also African-American professionals “refused to give in to anger when confronted by individuals who treated the group with disrespect.” (56.1 Stmt. & Resp. ¶¶ 61-63; Savoiardo Decl. Ex. BBB (the “New York Times Article”).) Plaintiff responded to Fanelli via email stating that he was offended because he is “not an angry black man.” (56.1 Stmt. & Resp. ¶ 65; Savoiardo Decl. Ex. CCC.) Fanelli apologized; he thought the article was about the “dilemma that African American men go through when they become professionals.” (56.1 Stmt. & Resp. ¶ 66.) Fanelli had distributed the same article to other administrators and teachers within the District, as well as the president of the local chapter of the NAACP. (Id. ¶¶ 67-68.)

         4. Other Allegations

         In addition to the Iantorno Email, the Hockey Incident and the New York Times Article, Plaintiff makes several other allegations of discrimination, including:

• on an unknown date, another teacher, Drew Ciccoria, referred to African Americans as “Alabama porch monkey[s]” and said that “Black people can't cut it in sports, ” (Savoiardo Decl. Ex. H, at 240-41);
• on an unknown date, Melissa Piccola, a physical education teacher at the Middle School, (Savoiardo Decl. Ex. H, at 94), may have said to Plaintiff that he “talk[s] too black, ” (56.1 Stmt. & Resp. ¶ 192; Savoiardo Decl. Ex. S, at 44);
• in 2006-08, Ciccoria acted inappropriately toward African-American students, making statements such as “Blacks can't cut it in football, ” and ridiculing a student on the basketball team, (Savoiardo Decl. Ex. GGG, at DEF000427);
• in 2010, a female teacher sexually harassed Plaintiff by sitting on his lap, (id. ¶¶ 231);
• sometime between 2010 and 2012, Swift asked Plaintiff, “Can't you guys spell?” after Plaintiff had misspelled Swift's name in an email, (id. ¶¶ 234-3 5);[5]
• at the April 15, 2013 meeting regarding the Hockey Incident, Swift reported that someone else asked him, “When are we going to get rid of Plaintiff and how fast are we going to get rid of him?” (Id. ¶¶ 238-39; Savoiardo Decl. Ex. VV.) Swift referred to those people as “stupid, ” (Savoiardo Decl. Exs. UU, VV);
• in November 2013, Ciccoria was disruptive during an anti-discrimination seminar, (56.1 Stmt. & Resp. ¶¶ 227-28); another teacher testified that the comments made at this seminar were gender-related, not race-related, (id. ¶ 229);
• in 2014 or 2015, Swift told Piccola to document any complaints she had about Plaintiff in writing, and texted her in April 2015, stating he “need[ed] [her] letter again. With your name typed then signed” because it “[h]as to be official. District is fed up with him, ” (56.1 Stmt. & Resp. ¶ 239(d)-(e)); Piccola first complained about difficulty in working with Plaintiff in March 2013, (see Savoiardo Decl. Ex. VVV, at DEF20971), and filed written complaints on December 1, 2 and 10 in 2014, and April 10, August 28 and October 22, 2015, (56.1 Stmt. & Resp. ¶ 239(e); Schragin Decl. Ex. 32);
• in or around September 2014, Piccola complained that she did not want “another Hernandez” in her class, (AC ¶ 51);
• in October 2014, an unknown person urinated in Plaintiffs coffee pot, (56.1 Stmt. & Resp. ¶¶ 280-81);
• Plaintiff was not permitted to take certain professional development courses; the courses were first come/first served and were available through an online program called “My Learning Plan” and sometimes through email, (id. ¶¶ 243-45); in 2014, Plaintiff was given permission to take eleven of his thirteen requested courses, but was denied the opportunity to take a course entitled “Nonviolent Crisis Intervention, ” (id. ¶¶ 250-52); Plaintiff believes Swift denied his request because of his race, (id. ¶ 252);
• on the morning of November 5, 2014, Plaintiff found that an unknown person had used a bathroom in Plaintiffs hallway without flushing the toilet properly, (id. ¶¶ 276-77);
• in December 2015, Swift criticized Plaintiff via email, copying Plaintiffs union representative, after Plaintiff did not leave lesson plans for a substitute teacher in the appropriate place, (see Id. ¶¶ 265-71); Plaintiff and other teachers believed that there were several appropriate places to leave lesson plans in the event of an absence, (id. ¶ 269);
• on October 16, 2015, Piccola told Plaintiff in front of his class that it was her right as an American to use the N-word, (56.1 Stmt. & Resp. ¶ 284; Savoiardo Decl. Ex. H, at 49, 54-55, 94);
• sometime in 2015, Plaintiff was harassed in an unspecified manner over his handwriting, (56.1 Stmt. & Resp. ¶ 274; Savoiardo Decl. Ex. H, at 49, 51);
• in early 2016, a baseball coach told an African-American student that “he runs as fast as a runaway slave” and called the student stupid, (56.1 Stmt. & Resp. ¶ 290); Plaintiff did not report these incidents to the District or its administrators at any time, except (as noted below) he told an administrator in 2013 about Swift's spelling comment.

         B. The District's Initial Investigations

         At the District's behest, Fanelli conducted an investigation into whether the Iantorno Email violated the District's Internet Policy, the Prohibition Policy Against Discrimination and Harassment, or the Dignity for All Students Act. (Id. ¶¶ 71-72.) Fanelli's findings, which Kliszus adopted, (id. ¶ 74), were: (1) the Iantorno Email was meant as a “humorous attempt to call attention to an observation, ” but its accompanying text was viewed by some as “beyond the threshold of tolerance, ” (id. ¶ 75); (2) this was Iantorno's first infraction, (id. ¶ 77); (3) no Middle School employee had sent similar emails since Swift had been principal, (id. ¶ 78); and (4) the email was “a severe error in judgment on a number of levels” and the “apology did not go far enough in proportion to the action itself, ” (id. ¶ 79). Fanelli concluded that Iantorno violated the District's Internet Policy, noted that a critical evaluation had been placed in her file and recommended a copy of his report also be included. (Id. ¶¶ 80-81.) Fanelli suggested Iantorno draft an apology letter to distribute to the Middle School's staff, (id. ¶ 82), and that she find two articles addressing similar situations and submit a written analysis, (id. ¶ 83). Iantorno drafted a letter of apology and completed the assignment as instructed. (Id. ¶¶ 84-85.)[6]

         Kliszus, who had attended training sessions on how to conduct a discrimination investigation, (id. ¶ 87), investigated the Hockey Incident, (id. ¶ 86). Kliszus first met with Plaintiff on April 15, 2013, (id.), but before speaking with Plaintiff, sent an email to School Board members, informing them (among other things) that “there was no attack on anyone by the principal.” (Id. ¶ 86(b).) Kliszus again met with Plaintiff, Swift, Fanelli and the president of Plaintiff's union on April 22, 2013. (Id. ¶ 89.) At this meeting, Plaintiff did not allege that Swift intentionally hit him with the hockey ball because of his race, (id. ¶ 94), but did contend he possessed emails documenting Swift's racially charged speech, (id. ¶ 92). Kliszus reviewed these emails and met with Swift to discuss them, (id. ¶¶ 99-100), and ultimately concluded that there was no evidence of racial animosity toward Plaintiff in the emails, (id. ¶ 101). Kliszus also met with two African-American District employees, who reported that they had not observed Swift engaging in racially inappropriate behavior or speech and did not believe that Swift would intentionally hit another teacher with a hockey ball. (Id. ¶¶ 95, 96.)

         In his final report, (Savoiardo Decl. Ex. EEE), [7] Kliszus concluded that the Hockey Incident was an accident, adopted Plaintiff's recommendation to create a school culture committee, recommended that Plaintiff serve on that committee, and suggested that Plaintiff “avail himself of appropriate supports to address concerns regarding anger management, ” (56.1 Stmt. & Resp. ¶¶ 97, 102, 105). Swift and Kliszus testified that the committee was formed the following year, and that all teachers were invited to serve on it, (id. ¶¶ 103-04); Plaintiff is not aware that such a committee was formed, (id.).

         C. The ...


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