United States District Court, S.D. New York
A. Kaplan United States District Judge
defendants in these actions previously moved for summary
judgment. In so doing, they submitted a statement under Rule
56.1 of the Local Civil Rules of this Court containing 341
paragraphs of proposed material facts that they asserted were
not genuinely in dispute [16-cv-4891, DI-72]. The plaintiffs
filed a joint response to the defendants' statement in
which they agreed that a substantial number of these facts
were not in dispute, either by asserting that they were
undisputed or by failing to dispute them in substance
of the parties' inability to reach any meaningful
stipulation of facts to shorten the trial and render the
facts more readily understandable to the jury, the Court has
prepared the attached draft of a statement of undisputed acts
(the "Draft Statement") from the parties' Rule
56.1 statements. Subject to the following provisions of this
order and the proceedings contemplated hereby, the Court
intends to enter a further order, pursuant to Fed.R.Civ.P.
56(g), determining that the propositions contained in the
Draft Statement (or any amendment thereof in light of
subsequent comments by the parties) that in fact was
undisputed at the time of plaintiffs' response to
defendants' Rule 56.1 statement are not genuinely in
dispute and are binding on the jury although they are to be
considered in the context of all of the evidence. The
following additional points are appropriate:
point of making a Rule 56(g) determination is to eliminate
needless proof of facts that are not genuinely in dispute and
thereby to tiy the case more efficiently. In principle, a
Rule 56(g) determination could foreclose the presentation of
additional evidence on an undisputed fact. The Court does not
expect to carry that principle to its logical extreme. It
anticipates that some witnesses may have occasion to mention
undisputed facts that are subjects of the Rule 56(g)
determination in order to maintain continuity of narrative or
for other sensible purposes. But it does expect, depending
upon the circumstances, to foreclose needless repetition and
Court has considered the parties' contentions that
additional evidence may place particular undisputed facts in
a different light. But that is not a sufficient excuse for
refusing to stipulate to so much as is undisputed, Nor is it
a sufficient reason not to enter a Rule 56(g) order.
order to conform to the text of the parties' Rule 56.1
statements, the Draft Statement contains some factual
propositions stated in the present tense notwithstanding that
the parties' agreement that the factual propositions were
undisputed occurred some time ago and spoke only with respect
to the period up to the date of the parties' agreement,
i.e., the date of plaintiffs' response to
defendants' Rule 56.1 statement and not beyond. It
therefore is possible that some such propositions are not
accurate with respect to subsequent dates.
possibility might be dealt with by redrafting each of those
present tense propositions to make clear the time period as
to which each has been agreed to be accurate. The Draft
Statement has not taken that approach in order to conform the
text as closely as possible to the parties' Rule 56.1
Statements. Rather, the Court anticipates instructing the
jury that factual propositions contained in the Final
Statement that speak in the present tense were true at all
times relevant to these cases but that any question or
concern as to whether they remain true as of the time of
trial is immaterial and should not be considered by the jury.
But the Court solicits the parties' views as to the best
method of handling this concern.
Court understands that there may be objections to the
admissibility of particular propositions, e.g., on grounds of
relevancy, hearsay, etc. Except as set forth below, nothing
in this order or in the Draft Statement forecloses any such
light of the foregoing, the parties on or before January 16,
2020 shall file written statements containing all of their
comments responsive to paragraph 3 and all of their
objections to admissibility of particular propositions in the
Draft Statement. Any objections to admissibility not included
therein shall be deemed forfeited.
comments or objections are timely filed, the Court will hear
argument on January 23, 2020 at 10 a.m.
proceedings have established that the facts set forth below
are undisputed. The jury is obliged to accept them as true
for purposes of this action.
of the facts stated below are couched in the present tense.
For example, paragraph 20 states that "Formal and
informal observations are rated either Unsatisfactory or
Satisfactory." In considering facts so stated, it has
been determined that those facts were true at all times
relevant to these actions up to and including late 2013. Any
question or concern as to whether any such fact remained true
after that date or remains true now is immaterial and should
not be considered by the jury.
Pan American International High School at Elmhurst
American International High School at Elmhurst ("Pan
American"), a New York City Department of Education
("DOE") high school is part of the International
Network, which is a network of fourteen schools with a
specific English as a Second Language ("ESL")
model. Ninety-nine percent of the student population are
native Spanish speakers. Pan American was also part of the
Children's First Network ("CFN") 106.
Plaintiffs' Response and Counter-Statement of Material
Facts Under Local Civil Rule 56.1(b) (hereinafter "Rule
56.1 Response") ¶ 1. See also Exs. I at
35, 77; P at 18; D at 81; L at 23; S-V.
106 was a support group for 25 schools, including Pan
American. Rule 56.1 Response ¶ 2. See also Exs.
D at 36; L at 15.
During the 2010-11 and 2011-12 academic years, the principal
Pan American of was Marcella Barros. Rule 56.1 Response
After Ms. Barros left Pan American, Minerva Zanca was
appointed as acting principal of Pan American. She held that
position from August 2012 to June 2015. Rule 56.1 Response
¶ 6. See also Exs. D at 46-47; G at 20; T at
USA 000282; U at USA 000304.
Pan American's Administrators
Defendant Minerva Zanca ("Principal
Defendant Minerva Zanca was appointed as principal of Pan
American, in an interim acting basis, at the start of the
2012-13 school year. Rule 56.1 Response ¶ 11. See
also Exs A at 62; F at 36-37; I at 60-65; W.
April 4, 2013, following a C-30 process, Ms. Zanca was
appointed as principal of Pan American. Rule 56.1 Response
¶ 12. See also Exs. I at 60-65, 90-93; W; X.
Prior to becoming principal of Pan American, Principal Zanca
had served as an assistant principal ("AP") for two
years, a guidance counselor and teacher for a combined total
often years, and a Spanish language teacher for twelve years
for approximately 24 years of DOE service prior to becoming
Principal. Rule 56.1 Response ¶ 13. See also
Ex. F at 11.
Zanca was the principal for Pan American for the academic
years 2012-13, 2013-14 and 2014-15. She served as acting
principal until April 2013. Rule 56.1 Response ¶ 16.
See also Exs. E at 46-47; G at 20.
Defendant Juan Mendez ("Superintendent
Superintendent Mendez began working for the DOE in August
1985. Rule 56.1 Response ¶ 18. See also Exs. H
at 6-8:1 at 19.
Since 2015, Superintendent Mendez has served as the
superintendent of schools for the New Visions Schools in
Queens and Bronx counties, and District 28, of the DOE. Rule
56.1 Response ¶ 19. See also Exs. H at 5; I at
Between 2011 and 2014, Superintendent Mendez was the Queens
High School Superintendent, during which time he oversaw 89
high and secondary schools in Queens County. Rule 56.1
Response ¶ 20. See also Ex. I at 20-21.
Queens High School superintendent, Superintendent Mendez
directly supervised the principals of the 89 schools under
his purview and functioned as their rating officer. He also
attended district leadership and community meetings. He
conducted quality reviews, which are qualitative evaluations
of the schools he supervised. Rule 56.1 Response ¶ 21.
See also Ex. I at 21-22.
part of his responsibilities as superintendent,
Superintendent Mendez determined teachers' tenure,
probation extensions, and discontinuances. Rule 56.1 Response
¶ 22. See also Ex. I at 22-23.
his role as superintendent, Superintendent Mendez did not
conduct investigations into employee complaints of
discrimination, but he authorized the discipline of employees
as a result of findings by the DOE's Office of Equal
Opportunity ("OEO"). Rule 56.1 Response ¶ 23.
See also Ex. I at 26-31.
The 2012-2013 Teacher Rating Process
From 2010 to 2013, one evaluation system existed for rating
teachers, whether those teachers had received tenure, or had
not yet completed their probationary period. The evaluation
procedure is set forth in Article 8 of the collective
bargaining agreement for teachers, which specifically
references "Teaching in the 21st Century" and also
can be found in the Rating Pedagogical Staff Members manual.
Rule 56.1 Response ¶ 26. See also Exs. J at
During the 2010-13 academic years, probationary teachers were
subject to a three-year probationary period. The three year
probationary period could be extended at the end of the third
year based on the recommendation of the principal, who
functioned as the teacher's rating officer. The
superintendent then reviewed the recommendation and issued
the final decision. Extensions of probation are generally for
one-year periods. Rule 56.1 Response ¶ 27. See
also E at 44; E at 44; J at 40-42; Y at USA 3039.
There is no limitation on how many extensions of probation
can be granted. Rule 56.1 Response ¶ 28. See
also Ex. J at 42.
Formal observations could be conducted by principals,
assistant principals, or a combination of these
administrators. Rule 56.1 Response ¶ 32. See
also Ex. J at 50.
Formal observations are preceded and followed by a conference
with the evaluating administrators). The pre-observation
conference is for the purpose of discussing the lesson plan
and answering any question the teacher may have. The post
observation conference is held in order to provide the
teacher with feedback about the observed lesson, answer any
questions, and provide strategy for future lessons. The
observation report must be memorialized within three months
of the observation. Rule 56.1 Response ¶ 34. See
also Exs. G at 45-46; at 25; J at 48, 50-52; Z.
Formal and informal observations are rated either
Unsatisfactory or Satisfactory. Rule 56.1 Response ¶ 36.
See also Exs. G at 47; J at 54; Y at USA003032.
purpose of the observations is to allow the rating officer to
determine the teacher's strengths and weaknesses. They
are also used as a tool to observe how a teacher responds to
feedback. Rule 56.1 Response ¶ 37. See also
Exs. E at 31-32; I at 100-102.
Logs of support are a record of support provided to the
teacher including professional development, team meeting,
feedback from mini, informal and formal observations, and any
outside professional development received. Logs of support
are implemented when there are signs that a teacher is
struggling, resistant to guidance and/or unwilling to
improve. Rule 56.1 Response ¶ 38. See also Exs.
E at 155; G at 58-59.
the end of the academic year, all teachers receive an annual
rating. During the 2012-2013 academic year, teachers could
receive either a Satisfactory or Unsatisfactory rating.
Annual ratings are based on the teacher's observation
ratings, disciplinary letters, logs of support, goals, and/or
attendance. The DOE does not require a principal to weigh any
one component more than another one. Further, the DOE does
not set any specific number of unsatisfactory observations
that will lead to an unsatisfactory annual performance
rating, Rule 56.1 Response ¶ 40. See also Exs.
G at 33, 56-57; I at 211-212; J at 54-56; Y at USA 003032.
unsatisfactory annual performance rating can lead to a
teacher's discontinuance. Upon discontinuance, a
teacher's license could be revoked which would not allow
the teacher to teach anywhere in the DOE. A teacher could
also be discontinued without a revocation of license, which
would allow the teacher to work in a different district from
which teacher had been discontinued. Rule 56.1 Response
¶ 41. See also Ex. J at 57, 64-65; Y at USA
Annual ratings of teachers are prepared by the principal: a
superintendent does not rate the teacher. The superintendent,
however, makes the decision whether to grant a teacher
tenure. Rule 56.1 Response ¶ 42. See also Ex. J
the superintendent decides to discontinue a teacher, a letter
is sent to the teacher with 30 days' notice. The teacher
then has an opportunity to provide information to dispute the
discontinuance. Rule 56.1 Response ¶ 43. See
also Exs. J at 74, 75; M at 83-84.
teacher can grieve, or appeal, an unsatisfactory annual
performance rating or discontinuance. Rule 56.1 Response
¶ 44. See also Ex. J at 211.
Superintendents and principals have some discretion to change
an employee's annual performance rating. The annual
performance rating can also be changed as a result of an
appeal. Rule 56.1 Response ¶ 45. See also Ex. J
at 36, 39.
Assistant principals also are subject to an evaluation
process and annual reviews. At the beginning of the year, the
assistant principal establishes goals and objectives with his
or her supervisor, which are subsequently memorialized on a
form. Then at the end of the year, there is an evaluation of
the year-long performance of the assistant principal measured
against the goals and objectives. Rule 56.1 Response ¶
46. See also Ex. J. at 107-108.
Assistant principals also are subject to a probationary
period, which is five years long. Like teachers, the
probationary period for an assistant principal can be
similarly extended. Rule 56.1 Response ¶ 47. See
also Ex. J. at 109.
Also similar to teachers, during the 2012-2013 academic year,
assistant principals received annual ratings of either
Satisfactory or Unsatisfactory. Rule 56.1 Response ¶48.
See a/so Ex. J at 109-110.
with, teachers, the principal makes the recommendation as to
whether an assistant principal receives tenure, an extension
of probation, or discontinuance. The final detemiination with
respect to an assistant principal's employment status is
made by the superintendent. Rule 56.1 Response ¶ 49.
See also Ex. J at 111-112.
Principals may also have their licenses terminated. Rule 56.1
Response ¶ 50. See also `E‰ J at 111412.
pedagogical employees, including teachers and assistant
principals, on probation can appeal the decision to terminate
the employee's license to the DOE's Office of Appeals
and Reviews. Rule 56.1 Response ¶ 51. See also
John Flanagan ("Mr. Flanagan")
Flanagan commenced his employment as a teacher with the DOE
in 2008. Rule 56.1 Response ¶ 52. See also Ex.
A, at 12.
Flanagan was subject to a three year probationary period.
This period of probation was extended twice so that his
probationary period was scheduled to end in the fall of 2013,
which was his fifth year of probationary service. Rule 56.1
Response ¶ 53. See also Ex. A at 41-44,
Flanagan was assigned to Pan American to teach native
language arts, Spanish. Rule 56.1 Response ¶ 54. See
also Ex. A 13, 15:3-20.
the end of the 2011-12 academic year, Mr. Flanagan was rated
"satisfactory" on his year-end evaluation by
Principal Barros. Rule 56.1 Response ¶ 55.
Superintendent Mendez extended Mr. Flanagan's probation
at the end of the 2011-2012 school year. Rule 56.1 Response
the start of the 2012 -13 school year, Principal Zanca became
the principal of Pan American. Rule 56.1 Response ¶ 57.
See also Ex. F at 12-1 A, 42. Principal
Zanca conducted informal classroom visits of Mr. Flanagan on
September 7, 12, and 27, 2012. Rule 56.1 Response ¶ 58.
See also Ex. BB.
November 8, 2012, Principal Zanca and Assistant Principal
Riccardo conducted a joint formal observation of Mr. Flanagan
for which he received an unsatisfactory rating. Rule 56.1
Response ¶ 59. See also Ex. CC.
November 19, 2012, Principal Zanca and Assistant Principal
Riccardo conducted a joint informal observation of Mr.
Flanagan. This observation was also rated unsatisfactory.
Rule 56.1 Response ¶ 60. See also Ex. DD.
Flanagan signed the November 19, 2012, Observation Report on
November 28, 2012, which specifically informed him that
"[unsatisfactory observations may lead to an
unsatisfactory rating and charges that may lead to your
termination." Rule 56.1 Response ¶6l. See
also Ex. DD.
December 17, 2012, Principal Zanca and Assistant Principal
Riccardo conducted a joint formal observation of Mr.
Flanagan, for which he received a "satisfactory"
rating. Rule 56.1 Response ¶ 62. See also Ex.
January 7, 2013, Principal Zanca and Assistant Principal
Riccardo conducted a joint informal observation of Mr.
Flanagan for which he received an unsatisfactory rating. In
the observation it was specifically noted that Mr.
Flanagan's failure to provide a hard copy of the
corresponding lesson plan could "result in an automatic
rating of unsatisfactory for the lesson." Rule 56.1
Response ¶ 63. See also Ex. G at 318; FF.
Flanagan signed the January 7, 2013, Observation Report on
March 21, 2013. Rule 56.1 Response ¶ 64. See
also Ex FF at 3.
February 14, 2013, Principal Zanca and Assistant Principal
Riccardo conducted another joint informal observation of Mr.
Flanagan, which was followed by a post-observation conference
and for which Mr. Flanagan received another unsatisfactory
rating. Rule 56.1 Response ¶ 65. See also Ex.
May 8, 2013, Principal Zanca and Eduardo Medrano, an
Assistant Principal of Newtown High School ("Assistant
Principal Medrano"), conducted a joint formal
observation of Mr. Flanagan. Rule 56.1 Response ¶
66. See also G at 110-112; HH.
Assistant Principal Medrano had been selected to conduct the
observation of Mr. Flanagan with Principal Zanca because he
was an experienced educator with the same subject area
expertise as Mr. Flanagan. Rule 56.1 Response ¶ 68.
See also Exs. F at 117, 121-122; H at 86- 87, 91; G
at 110-112; I at 125-126, 129; K at 39.
Assistant Principal Medrano also had some familiarity with
Pan American. In Assistant Principal Riccardo's absence,
he supervised the Saturday and after-school programs at Pan
American and taught ESL to Pan American's parents. Rule
56.1 Response ¶ 69. See also Ex. K at 28-29.
Flanagan was issued an unsatisfactory rating for this lesson.
Rule 56.1 Response ¶ 70. See also Ex. HH.
the May 8, 2013, Observation Report, Principal Zanca noted
that the lesson was teacher-centered and that both the lesson
and the homework packets lacked academic rigor. Rule 56.1
Response ¶ 71. See also Ex, HH.
defendants contend that on May 21, 2013, Mr. Flanagan was
involved in an incident with a student. Rule 56.1 Response
Principal Zanca stated in a June 5, 2013 Letter to File that
she conducted an investigation of the incident, interviewing
Mr. Flanagan and obtaining statements from the
student-complainant and witnesses. Rule 56.1 Response ¶
75. See also Ex. JJ.
the Letter to File, Principal Zanca stated also that
following her investigation, she concluded that Mr. Flanagan
had had an argument with the student-complainant and during
the argument he used an expletive in front of the students.
She further concluded that his behavior demonstrated
"poor judgment." Rule 56.1 Response ¶ 76.
See also Ex. JJ.
Principal Zanca offered Mr. Flanagan professional development
in de-escalating strategies with students and warned that his
actions could lead to an unsatisfactory rating or
termination. Rule 56.1 Response ¶ 77. See also
the 2012-13 school year, Mr, Flanagan received an
unsatisfactory rating from Principal Zanca on his end-of-year
Annual Professional Performance Review ("APPR") and
Principal Zanca recommended the discontinuance of his
employment at Pan American. She stated that she made this
recommendation because he struggled teaching Spanish to
native Spanish speakers. Rule 56.1 Response ¶ 78.
See also Exs. G at 102-103; H at 29-30, KK.
giving Mr. Flanagan an end-of-year unsatisfactory rating,
Principal Zanca referred to his unsatisfactory observation
reports for November 8, and 19, 2012, January 7, February 14,
and May 8, 2013, as well as the June 5, 2013 Letter to File.
Rule 56.1 Response ¶ 79. See also Ex, KK at
making his determination as to whether to discontinue Mr.
Flanagan, Superintendent Mendez stated that he reviewed his
rating sheet evaluation for the 2012-13 school year and the
documentation from Pan American in support of the
recommendation of discontinuance. Rule 56.1 Response ¶
81. See also Ex. H at 29-30.
letter from Superintendent Mendez to Mr. Flanagan, dated June
14, 2013, Mr. Flanagan was informed that the Superintendent
was reviewing and considering whether Mr. Flanagan's
services as a probationary teacher would be discontinued as
of the close of business, July 17, 2013. Rule 56.1 Response
¶ 82. See also Ex. H at 35-36.
Superintendent Mendez afforded Mr. Flanagan until July 17,
2013, to submit a written response regarding the
consideration of the discontinuance of Mr. Flanagan's
probationary employment. Rule 56.1 Response ¶ 83.
See also Ex. H at 36-37.
Superintendent Mendez informed Mr. Flanagan of his decision
in a letter, dated August 8, 2013. Rule 56.1 Response ¶
Superintendent Mendez stated that he did not receive Mr.
Flanagan's written response until later in August 2013,
after Superintendent Mendez had already issued the letter
discontinuing Mr. Flanagan's probationary employment. But
upon receipt, Superintendent Mendez reviewed and considered
Mr. Flanagan's written response. It did not alter his
decision. Rule 56.1 Response ¶ 88. See also
Exs. H at 49-50, 99-100, 1 at 247-257.
Assistant Principal Riccardo observed that Mr. Flanagan
"struggled with classroom management." Rule 56.1