Clarke v. New York City Department of Education

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

SIMONE CLARKE, MEMORANDUM & ORDER

Plaintiff, 18-CV-1850 (NGG) (JO)

-against-

NEW YORK CITY DEPARTMENT OF

EDUCATION, and CLAUDETTE CHRISTIE,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Simone Clarke brings this action against Defendants

New York City Department of Education (“DOE”) and Claudette

Christie after Ms. Clarke was terminated from her position as an

Assistant Principal at the World Academy for Total Community

Health (“‘WATCH”) High School in Brooklyn. Ms. Clarke asserts

claims of (1) sex and pregnancy discrimination in violation of Ti-

tle VII of the Civil Rights Act of 1964 (“Title VII”), the New York

State Human Rights Law (“NYSHRL”), and the New York City

Human Rights Law (“NYCHRL”); (2) a hostile work environment

in violation of Title VII, NYSHRL, and NYCHRL; and (3) retalia-

tion against her for reporting the alleged discrimination in

violation of Title VII, NYSHRL, and NYCHRL. Now before the

court is Defendants’ motion for summary judgment. (See Mot. for

Summ. J. (Dkt. 31); Mem. in Supp. of Defs’. Mot. for Summ. J.

(“Mem.”) (Dkt. 40); Pl. Mem. in Opp. to Mot. For Summ. J.

(“Opp.”) (Dkt. 43); Defs.’ Reply (“Reply”) (Dkt. 45); Pl. Suppl.

Reply (“Suppl. Reply”) (Dkt. 50).)

For the reasons that follow, Defendants’ motion is GRANTED IN

PART and DENIED IN PART. Specifically, the motion is granted

as to Ms. Clarke’s claims of a hostile work environment under

Title VII and the NYSHRL and as to claims of retaliation under

Title VII, NYSHRL, and NYCHRL. Defendants’ motion is denied

as to Ms. Clarke’s claims of sex and pregnancy discrimination and

as to claims of a hostile work environment under the NYCHRL.

I. BACKGROUND!

In May 2015, Defendant Claudette Christie, the Principal of

WATCH High School, hired Ms. Clarke to serve as the Interim

Assistant Principal (“AP”) for Administration. (Pl. Resp. to Defs’.

Local R. 56.1 Statement (“56.1 Resp.”) (Dkt. 42) 4 16.) Soon af-

ter, Ms. Clarke applied to fill the position permanently and she

!The court constructs the following statement of facts from the parties’ Lo-

cal Rule 56.1 Statements and the admissible evidence they submitted.

Except where otherwise noted, the following facts are undisputed. Where

the parties allege different facts, the court notes the dispute and credits the

Plaintiffs version if it is supported by evidence in the record. All evidence

is construed in the light most favorable to the non-moving party with all

“reasonable inferences” drawn in its favor. ING Bank N.V. v. M/V Temara,

IMO No. 9333929, 892 F.3d 511, 518 (2d Cir. 2018).

The court is disappointed that the parties have not resolved fundamental

factual disputes about discovery. It takes very seriously Defendants’ claim

that Plaintiff abused the discovery process, including by strategically edit-

ing audio recordings. (See Reply at 8.) If a party has knowingly

misrepresented facts to the court, that may be the basis for sanctions upon

the appropriate motion. See Fed. R. Civ. Pro. 11(c); see also Fed. R. Civ.

Pro. 56(h). The court also takes seriously Plaintiffs contention that De-

fendants have falsely accused Plaintiff of relying on materials that were not

produced in discovery, when, in fact, they were produced by Defendants.

(See Suppl. Reply at 4.) The court relies on the parties to know and to

accurately represent the record. The court credits Plaintiff's representations

that she complied with her disclosure obligations during discovery. (See,

e.g., Suppl. Reply at 5.) Thus, the court declines to strike any exhibits based

on alleged discovery abuses which Plaintiff denies. Of course, crediting

Plaintiffs factual assertions does not require the court to accept her legal

arguments about the admissibility of any evidence proffered, which the

court must always independently determine. See Fed. R. Civ. Pro. 56(c).

The court only addresses the admissibility of evidence on which it relies.

The parties should not take the court’s silence on any evidentiary issues

raised by Defendants in their reply as an indication that the court agrees

with Plaintiff. (See, e.g., Reply at 3-4, 6-7.)

was hired on December 17, 2015. Ud. § 23.) Ms. Clarke’s proba-

tionary, i.e. untenured, employment period was set to expire on

May 4, 2020. (Id.)

Throughout the summer and the start of the Fall 2015 semester,

emails show that Principal Christie expressed dissatisfaction with

elements of Ms. Clarke’s job performance. In July, she admon-

ished Ms. Clarke for sharing internal information on an email

chain where a job candidate was copied. (See Emails of July 22-

25, 2015 (Dkt. 41-15) at ECF pp. 1-2.) In September, Principal

Christie had to make basic grammatical edits to successive drafts

of a letter, drafted by a guidance counselor but reviewed and ap-

proved by Ms. Clarke, inviting WATCH students and their

families to an open-house for a program serving at-risk students.

(See Emails of Sept. 16-28, 2015 (Dkt. 41-15) at ECF pp. 6-10.)

At the bottom of the draft, Principal Christie wrote to Ms. Clarke:

“This is the second time I have retuned this letter for editing;

please engage in proof-reading before attaching to email; also,

note that it is being sent out from an instructional setting, It be-

hooves me that such a simple letter is presenting such

problematic editing, especially as it is being crafted by educators.”

(id. at 10 (emphasis in original).) Principal Christie emailed Ms.

Clarke that she was behind on conducting teacher evaluations,

which Ms. Clarke disputed, and that she failed to keep binders

up to date with meeting notes and minutes. (See Emails of Sept.

29, 2015 (Dkt. 41-15) at ECF pp. 11-12.) Principal Christie con-

tinued to email Ms. Clarke throughout October regarding

performance issues. (See Emails of Oct. 2015 (Dkt. 41-15) at ECF

pp. 14-20.) At other times in the same period, she thanked Ms.

Clarke for work well done. (See Emails of Principal Christie (Dkt.

44-14).)

According to Ms. Clarke, she informed Principal Christie that she

was pregnant in December 2015. (56.1 Resp. { 157.) As evi-

dence, she offers the sworn statement in her verified complaint

before the New York City Commission on Human Rights (Dkt.

44-15) and photographs that show her visibly pregnant, with

handwritten dates from November and December 2015. (Dkt.

44-5). Defendants claim that Principal Christie was not aware of

Ms. Clarke’s pregnancy until February 2, 2016. (56.1 Resp. { 46.)

They dispute Ms. Clarke’s testimony and characterize her photo-

graphic evidence as “unauthenticated” and “suspiciously dated.”

(Reply at 5-6.) The court credits Ms. Clarke’s version of events

for the purpose of deciding the instant motion, but notes that

whether Principal Christie was aware of the pregnancy between

December 2015 and February 2016 is a significant and contested

factual issue.

Around the same time that Ms. Clarke informed Principal Chris-

tie that she was pregnant, Principal Christie began to provide

harsher and more consistent negative feedback to Ms. Clarke. For

instance, on December 22, she wrote in an email: “It is becoming

extremely concerning regarding your ability to attend to and

complete written reports in a timely manner[,]” before docu-

menting tasks that Ms. Clarke had failed to complete. (Email of

Dec. 22, 2015 (Dkt. 44-46) at ECF p. 26.) Principal Christie also

expressed concern that Ms. Clarke was “consistently reporting to

work anywhere from a minute past to five minutes past [her]

official work start time” of 8:00 am. (Email of Jan. 7, 2016 (Dkt.

44-46) ECF p. 28.) She directed Ms. Clarke to begin punching in

with a timecard each morning for the following two months. (d.)

Ms. Clarke attended a meeting, along with representation from

her union, to discuss the directive. (Email of Jan. 30, 2016 (Dkt.

44-52).) At the meeting, she expressed that she felt “defeated,

embarrassed, and humiliated” to have to clock in when other em-

ployees were not required to. (/d.) In response, Principal Christie

dropped the timecard requirement but moved Ms. Clarke’s start

time to 7:45 am. (d.)

Ms. Clarke alleges that during December and January, Principal

Christie told her that she was “not working as hard” and was “not

as efficient.” (56.1 Resp { 158.) She also claims that on two oc-

casions, Principal Christie commented that she was becoming

“fat.” Ud. { 159.) Principal Christie denies making those com-

ments and maintains that she did not know Ms. Clarke was

pregnant before February 2016. (Id. § 48, 82.)

During the Spring 2016 semester, Principal Christie continued to

register concerns about Ms. Clarke’s job performance. Ms. Clarke

allegedly failed to submit professional development logs and cal-

endars, to complete teacher evaluations in a timely manner, to

ensure that staff were notified of and attended mandatory train-

ing sessions, to schedule interviews for job applicants, or to

submit required compliance documents. (Ud. | 56-58.) Principal

Christie also reprimanded Ms. Clarke for cancelling a science fair,

which she had been directed to organize, without consulting her.

(Email of Mar. 29, 2016 (Dkt. 44-36) at ECF p. 46.) Linda Pat-

terson, a professional coach who worked with Ms. Clarke,

reported to Principal Christie in April 2016 that “Ms. Clarke could

benefit from engaging in purposeful thought about designing and

achieving professional goals” but also that a “more transparent

alignment between goals and practice” would benefit her. (Email

of Apr. 17, 2016 and Log of Assistance (Dkt. 41-19).) Principal

Christie also moved Ms. Clarke’s start time back to 8:00 am and

required her to resume punching in with a timecard. (Letter of

Apr. 15, 2016 (Dkt. 44-46) at ECF p. 37.)

According to Ms. Clarke, Principal Christie continued to make de-

rogatory comments about her as a pregnant woman, all of which

Principal Christie denies. In March, Principal Christie allegedly

told Ms. Clarke that she “didn’t like [her] leaning back in her

chair and rubbing her belly, gossiping.” (56.1 Resp. 4 168.) On

another occasion, Ms. Clarke alleges that Principal Christie

mocked her, rising from her seat in the main office with feigned

difficulty and stating, “[h]ere comes Ms. Clarke now,” while rub-

bing her belly and waddling behind her. (Id. { 169.)

Ms. Clarke further alleges that Principal Christie told her in

March 2016 that “if you’re having issues with your pregnancy,

you should take off.” Ud. § 167.) Principal Christie denies that

allegation as well, but at a meeting on May 20, 2016 of which

Ms. Clarke made an audio recording, Principal Christie said:

And that’s one of the reasons why I said to you, the other

-- when I spoke to you that day, I said, “Ms. Clarke,

you're not functioning.” And I said, “If you need to take

off” -- that’s why I said, “If you need to take off”, because

I think I said to you, “It is better for you to take off and

take the time to get yourself together than for me to be

constantly writing you up, harassing you, because that

jeopardizes your job.” Ms. Clarke, I know for me, if ’m

not well, you see me was [sic] sick last week? I stayed

home. I know I could not function on the job.

(Meeting of May 20, 2016 Tr. (“Meeting Tr.”) (Dkt. 46-5) at 21.)?

The May 20 meeting began with Principal Christie chastising Ms.

Clarke for using the restroom before coming to meet with her:

“you have your lunch and then, on my time, you go to the bath-

room.” (Id. at 1.) The trip to the restroom, which Ms. Clarke

attributed to being eight months pregnant, caused her to be

seven minutes late to the meeting. (/d.) During the meeting, Ms.

Clarke reiterated her frustration that she was not allowed to use

the bathroom on the fifth floor, where her office was located, and

instead had to take the elevator to the third floor. (Id. at 17.)

? As discussed in note 1, supra, the court takes Plaintiff at her word regard-

ing her representations about the complete and forthright production of all

discovery materials. In any event, while Defendants registered specific ob-

jections to portions of the exhibit, they did not indicate any objection to

page 21 of the transcript of the recording. (See Reply at 8.)

Principal Christie responded that Department of Education regu-

lations prevented her from allowing Ms. Clarke to use the fifth-

floor restroom, which was designated for students. (Id. at 19-20.)

When Ms. Clarke questioned whether “there are some accommo-

dations that came be made for pregnancy, especially so late[,]”

Principal Christie replied, “what do you want me to do? Put a

bathroom in your office?” (Id. at 19.) She later added, “[d]o you

want me to bring the bathroom to you?” (Id. at 21.) As the meet-

ing ended, Principal Christie emphasized that she was only

concerned with Ms. Clarke’s job performance and that Ms. Clarke

“used the pregnancy as an excuse” when it was a “personal mat-

ter.” Ud. at 25.)

Principal Christie and Ms. Clarke met again on May 25, 2016, at

a meeting attended by Ms. Clarke’s union representative. In a let-

ter memorializing the meeting, Principal Christie stated that she

reviewed “the unprofessional manner in which [Ms. Clarke] re-

spond[s] to [her] directives including the emotional outbursts,

the raising of [Ms. Clarke’s] voice, [her] inappropriate responses,

and [her] tone.” (Letter of June 8, 2016 (Dkt. 44-46) at ECF p.

63.) She advised that if Ms. Clarke failed to change her behavior,

it “will lead to further disciplinary actions including termination

of services.”° (id. at ECF p. 64.) Principal Christie asked Ms.

Clarke to sign the letter, but Ms. Clarke declined. (NYC Comm’n

on Human Rights Verified Compl. (““NYCCHR Compl.”) (Dkt. 41-

2) 4 24.) She also informed Ms. Clarke that she would receive an

“Unsatisfactory” (“U”) rating on her end-of-year review. (id. at {

25.) On June 7, Ms. Clarke filed a charge of discrimination and

retaliation with the New York City Commission on Human Rights

(“NYCCHR”). (56.1 Resp. 4 3.) Her daughter was born on July

17, 2016. Ud. § 81.) Ms. Clarke’s verified complaint was served

3 The same language appeared in other letters from Principal Christie to

Ms. Clarke regarding her job performance. (See, e.g., Letter of April 15,

2016 (Dkt. 44-46) at ECF p. 37.)

on Principal Christie and DOE on September 2, 2016. (See NYC-

CHR Letter of Oct. 13, 2016 (Dkt. 44-19).)

During the Fall 2016 semester, Principal Christie continued to

document her numerous issues, large and small, with Ms.

Clarke’s job performance. On September 14 and October 7, she

reprimanded Ms. Clarke for leaving a privacy covering on her of-

fice window after she had finished pumping breast milk. (Email

of Sept. 14, 2016 (Dkt. 44-20); Email of Oct. 7, 2016 (Dkt. 44-

25) at ECF p. 3.) Over the course of 31 school days between Oc-

tober 5 and November 22, 2016, Principal Christie wrote 15

emails and four disciplinary letters to file regarding Ms. Clarke’s

performance. (See Opp. at 13-16.) Defendants point to serious

allegations contained in Principal Christie’s letters, such as “glar-

ing errors” in Individual Education Plans (“IEPs”) for Special

Education students that Ms. Clarke claimed she missed because

she did not review the IEPs for compliance, although that was

her responsibility. (See 56.1 Resp. {| 88-89; Letter of Oct. 24,

2016 (Dkt. 41-28) at 1.) Ms. Clarke also claimed to have sent a

professional development plan to Principal Christie and her sec-

retary and then later admitted, when confronted, that she had

not. Gd. § 91-92.) She also failed to submit her annual goals,

nearly a month after they were due. Ud. 7 93.)

In contrast, Ms. Clarke points to a series of complaints that Prin-

cipal Christie memorialized, in her telling, to build a record

against her over picayune gripes. (See Opp. at 13.) In one email,

for instance, Principal Christie instructed Ms. Clarke that she

needed to personally add photos to the school website—after Ms.

Clarke had reached out to the only teacher with access to the site

to ask for the password—because that teacher had “too much on

her plate.” (Email of Oct. 8, 2016 (Dkt. 44-26) at ECF p. 2.) In

another email, Principal Christie reprimanded Ms. Clarke for sub-

mitting documents to her at 5:00 pm instead of “the end of the

day,” which she stated was 2:30 pm. (Email of Oct. 23, 2016

(Dkt. 44-31) at 2.) Ms. Clarke also claims that Principal Christie’s

feedback could be “hostile.” (Opp. at 13.) In an email sent to Ms.

Clarke on a Sunday morning at 6:48 am, Principal Christie wrote:

“Once again, I ask that you become reflective in your practice and

reframe from deflection.” Then, in an email sent at 7:32 am

about a separate topic, she followed up: “Once again, Ms. Clarke,

Ownership and responsibility of your mistakes.” (Email of Oct.

23, 2016 (Dkt. 44-32) at 2; Email of Oct. 23, 2016 (Dkt. 44-30)

at 2.) A few days before, Ms. Clarke wrote to her union repre-

sentative that she and Principal Christie were “having difficulties

communicating” and “I feel like I am being harassed.” (Email of

Oct. 19, 2016 (Dkt. 44-29) at ECF p. 5.) On October 26, Ms.

Clarke alleged that Principal Christie was discriminating against

her in a complaint to DOE’s Office of Equal Opportunity and Di-

versity Management. (56.1 Resp. § 96.)

Principal Christie continued to advise Ms. Clarke, in writing, of

concerns with her professionalism. On November 1, she accused

Ms. Clarke of improperly sharing private information from a dis-

ciplinary meeting with another member of the school staff and

other acts of “insubordination,” including that she received a

manicure from a cosmetology class when she was supposed to be

in a meeting. + (Letter of Nov. 3, 2016 (Dkt. 41-31) at 1.) On No-

vember 2, she accused Ms. Clarke of being “extremely disruptive”

with “loud singing” in school hallways. (Email of Nov. 2, 2016

(Dkt. 44-40).) On November 14, according to Principal Christie,

Ms. Clarke approached her after a school cabinet meeting to say

that she wished to have a “frank and open conversation” and to

“put things on the table” before “they escalate and go higher than

both of us where [Principal Christie was] going to have regrets.”

4 Ms. Clarke denied that she got a manicure. When showed a picture, she

initially claimed it was not her in the photograph. She then admitted that

it was her in the photograph but maintained that she was not getting a

manicure, but only getting her nails cleaned. (Letter of Nov. 3 at 2.)

(Letter of Nov. 22, 2016 (Dkt. 41-32) at 2.) Principal Christie

memorialized the conversation in a letter, writing that “I per-

ceived your statement as a personal threat” and that it was

“unprofessional.” Ud.) The day after Principal Christie’s letter,

Ms. Clarke emailed her to say that she felt she was “being har-

assed and interrogated” after Principal Christie criticized her

handling of a student disciplinary matter. (Emails of Nov. 23,

2016 (Dkt. 44-43) at ECF p. 2.) In the email chain to which Ms.

Clarke was responding, Principal Christie wrote: “Once again, in

this matter and all other matters that [sic] you have failed to fol-

low my directives to please follow my directives.” (id. at ECF p.

4.)

On December 12, 2016, Principal Christie issued her seventh and

final disciplinary letter to Ms. Clarke, in which she accused her

of coercing a student into falsifying information regarding a sus-

pension, among other allegations. (Letter of Dec. 12, 2016 (Dkt.

41-33) at 1.) Four days later, Principal Christie emailed Ms.

Clarke with more negative feedback, including that she failed to

manage the school’s laboratory inventory and that “I have often

times seen you searching for your keys stating that you ‘can’t find

them.” (Emails of Dec. 16, 2016 (Dkt. 44-45).) Ms. Clarke for-

warded the email to her union representative, alleging that

Principal Christie was citing “falsehoods” that never occurred.

(id.) Soon after, Ms. Clarke’s employment was placed under re-

view and she was discontinued as an Assistant Principal on

January 23, 2017. (See Letters of Dec. 23, 2016 (Dkt. 44-48) and

Jan. 23, 2017 (Dkt. 44-51).)

In November 2017, NYCCHR sent a Notice of Administrative Clo-

sure and the United States Equal Employment Opportunity

Commission notified Ms. Clarke of her right to sue on January

18, 2018. (See Notices of NYCCHR and EEOC (Dkt. 41-4).) Ms.

Clarke commenced this lawsuit by filing a complaint on March

27, 2018. (Compl. (Dkt. 1).)

10

II. LEGAL STANDARD

Summary judgment is appropriate when “the movant shows that

there is no genuine dispute as to any material fact and the mo-

vant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro.

56(a). “The role of the court is not to resolve disputed issues of

fact but to assess whether there are any factual issues to be tried.

In determining whether summary judgment is appropriate, this

[cJourt will construe the facts in the light most favorable to the

non-moving party and must resolve all ambiguities and draw all

reasonable inferences against the movant.” Brod v. Omya, Inc.,

653 F.3d 156, 164 (2d Cir. 2011).° “A ‘material’ fact is one ca-

pable of influencing the case’s outcome under governing

substantive law, and a ‘genuine’ dispute is one as to which the

evidence would permit a reasonable juror to find for the party

opposing the motion.” Figueroa vy. Mazza, 825 F.3d 89, 98 (2d

Cir. 2016) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)). The movant may discharge its initial burden by

demonstrating that the non-movant “has ‘failed to make a show-

ing sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden of

proof at trial.”” Lantheus Med. Imaging, Inc. v. Zurich Am. Ins. Co.,

225 F. Supp. 3d 443, 451 (S.D.N.Y. 2015) (quoting Celotex Corp.

v. Catrett, 477 U.S. 317, 322-323 (1986)).

While the court must draw all inferences in favor of the non-mo-

vant, the non-movant “may not rely on mere speculation or

conjecture as to the true nature of the facts to overcome a motion

for summary judgment.” Fletcher v. Atex, Inc., 68 F.3d 1451, 1456

(2d Cir. 1995). In considering the Defendants’ motion, the court

is mindful that the Second Circuit “has long recognized the need

for caution about granting summary judgment to an employer in

° When quoting cases, and unless otherwise noted, all citations and quota-

tion marks are omitted and all alterations are adopted.

11

a discrimination case where . . . the merits turn on a dispute as

to the employer’s intent.” Walsh v. New York City Hous. Auth.,

828 F.3d 70, 74 (2d Cir. 2016). Nevertheless, “[t]hough caution

must be exercised in granting summary judgment where intent

is genuinely in issue, summary judgment remains available to re-

ject discrimination claims in cases lacking genuine issues of

material fact.” Chambers v. TRM Copy Centers Corp., 43 F.3d 29,

40 (2d Cir. 1994).

III, DISCUSSION

A. Pregnancy Discrimination

Title VII, as amended by the Pregnancy Discrimination Act of

1978, the NYSHRL, and the NYCHRL all prohibit discrimination

against employees on the basis of sex, which includes pregnancy

discrimination. See 42 U.S.C. 8 2000e(k); N.Y. Exec. Law §

296(1)(a); N.Y.C. Admin Code § 8-107.° “Claims brought under

New York State's Human Rights Law are analytically identical to

claims brought under Title VII.” Rojas v. Roman Catholic Diocese

of Rochester, 660 F.3d 98, 107 n. 10 (2d Cir. 2011). Claims under

the NYCHRL must be analyzed “separately and independently

from any federal and state law claims” because federal and state

statutes “can serve only as a floor below which the City's Human

Rights law cannot fall.” Mihalik v. Credit Agricole Cheuvreux North

America. Inc., 715 F.3d 102, 109 (2d Cir. 2013).

© Although Ms. Clarke makes claims under Title VII against Defendants

(plural), the federal statute does not allow for individual liability, and it

cannot be applied to Principal Christie. See Marchuk v. Farugqi & Farudqi,

LLP, 100 F. Supp. 3d 302, 307 (S.D.N.Y. 2015). To the extent that Principal

Christie can face liability under the NYSHRL and NYCHRL on a theory of

“aiding and abetting” pursuant to N.Y. Exec Law 8 296(6) and N.Y.C. Ad-

min. Code. § 8-107(1)(a), those claims are considered in Section IILD.

infra.

12

Title VII claims are analyzed under the burden-shifting frame-

work articulated in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). Walsh, 828 F.3d at 74-75. At the first step, the plain-

tiff must establish a prima facie case of discrimination by

showing: (1) that she belonged to a protected class; (2) that she

was qualified for the employment position she held; (3) that she

suffered an adverse employment action; and (4) that the adverse

employment action occurred under circumstances giving rise to

an inference of discriminatory intent. Holcomb v. Iona Coll., 521

F.3d 130, 138 (2d Cir. 2008). If the plaintiff succeeds in making

out a prima facie case, a presumption of discrimination arises and

the burden shifts to the defendant to articulate a legitimate, non-

discriminatory reason for the adverse employment action. Id. If

the defendant proffers such a reason, the plaintiff “has the op-

portunity to prove by a preponderance of the evidence that the

legitimate reasons offered by the defendant were not its true rea-

sons, but were a pretext for discrimination.” Back v. Hastings on

Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir. 2004).

To meet this burden, “the plaintiff may, depending on how

strong it is, rely upon the same evidence that comprised her

prima facie case, without more.” Id, at 124. Furthermore, to de-

feat summary judgment, “the plaintiff is not required to show

that the employer's proffered reasons were false or played no role

in the employment decision, but only that they were not the only

reasons and that the prohibited factor was at least one of the ‘mo-

tivating’ factors.” Id. at 123.

Ms. Clarke has easily met the “minimal requirements” to make

out a prima facie case of discrimination, See James v, N.Y, Racing

Ass'n, 233 F.3d 149, 153-154 (2d Cir. 2000). First, she belongs

to a protected class. Second, when she was hired, she had over

15 years of experience as an educator, including two stints as an

interim Assistant Principal at WATCH and another high school.

(56.1 Resp. 1 12, 18.) Third, Ms. Clarke suffered two adverse

employment actions: she was terminated from her position and

13

she received a “U” rating, which made her ineligible for per ses-

sion overtime work that she had previously performed. (See 56.1

Resp § 177; Demoret v. Zagarelli, 451 F.3d 140, 151 (2d Cir.

2006) (finding adverse action where, inter alia, plaintiff was “not

allowed to earn overtime pay”’).) Fourth, Ms. Clarke has estab-

lished that the circumstances surrounding those adverse

employment actions give rise to an inference that Principal Chris-

tie acted with discriminatory intent. Ms. Clarke testified that

Principal Christie told her that she was “not working as hard” and

was “not as efficient” when she became pregnant. She also testi-

fied that Principal Christie encouraged her to take time off

because pregnancy was preventing her from performing her job,

comparing pregnancy to an illness—comments corroborated by

Principal Christie in a subsequent audio recording. Those com-

ments alone are sufficient to shift the burden to Defendants for

the second stage of the McDonnell-Douglass inquiry. See Back,

364 F.3d at 124 (“[E]vidence of discriminatory comments, which

can constitute ‘direct evidence,’ [] are adequate to make out a

prima facie case, even where uncorroborated.”).

Similarly, Defendants have easily met their burden to rebut Ms.

Clarke’s prima facie case with legitimate, nondiscriminatory rea-

sons for the adverse employment actions taken against her. See

McDonnell Douglas, 411 U.S. at 802. Principal Christie carefully

documented a pattern of chronic lateness, inattention to detail—

particularly with respect to compliance with Special Education

requirements—and failure to follow instructions or to work col-

laboratively with her. Ms. Clarke does not contest that

Defendants met their burden at this stage.

The court proceeds to the third step to consider whether Ms.

Clarke has “produced evidence sufficient to permit a rational

finder of fact to infer that [Defendants’] decision was more likely

than not based in part on discrimination.” Walsh, 828 F.3d at 76.

At this step, the court looks at the evidence as a whole, just as a

14

juror would. Id. Ms. Clarke claims that, at least partially for dis-

criminatory reasons, Principal Christie targeted her with constant

and often unfair criticism to justify removing her from her posi-

tion. Locking at all of the evidence, the court finds that a

reasonable juror could agree with her, depending on how certain

factual disputes are resolved.

First, a reasonable juror, if crediting Ms. Clarke’s version of

events over Principal Christie’s denials, could find evidence of

discriminatory intent in Principal Christie’s direct statements and

conduct. See Back, 364 F.3d at 121 (holding comments that com-

ported with the stereotype that “work and motherhood are

incompatible” were sufficient to show discriminatory intent and

to defeat Defendant’s motion for summary judgment). Soon after

learning of Ms. Clarke’s pregnancy, Principal Christie allegedly

told Ms. Clarke she was “not working as hard,” that she was “not

as efficient,” and that she was “fat.” Principal Christie also

mocked Ms. Clarke for “rubbing her belly” and imitated her, in

front of her colleagues, by exaggeratedly waddling. Moreover,

Principal Christie’s anger that Ms. Clarke used the restroom ra-

ther than immediately report to her office for their May 20

meeting, and her dismissive response to Ms. Clarke’s request for

a reasonable accommodation from DOF’s regulation to allow her

to use a restroom near her office, could lead a reasonable juror

to conclude that Principal Christie had a derogatory view of Ms.

Clarke because of her pregnancy. See Zambrano-Lamhaouhi vy.

New York City Bd. of Educ., 866 F. Supp. 2d 147, 171 (E.D.N.Y.

2011) (“[Hlostility to Plaintiff as her due date approached, par-

ticularly in connection with her frequent bathroom breaks—a

common issue for pregnant women—could be seen by a jury as

evidence of a view that pregnant women lacked diligence or re-

quire undue accommodation.”). These incidents could all

reasonably lead to the conclusion that Principal Christie believed

that Ms. Clarke’s pregnancy was an obstacle to her professional

performance. Principal Christie confirmed as much when she

15

suggested that Ms. Clarke take time off from work because, like

an illness, pregnancy rendered her unable “to function on the

job.” Examining Principal Christie’s words and deeds, a reasona-

ble juror might find evidence of the familiar stereotype, oft

recognized by courts, that pregnant women are unfit for employ-

ment. Id. at 171 (collecting cases and secondary sources).

Second, Ms. Clarke allegations demonstrate a temporal proxim-

ity between her pregnancy and the circumstances that led to her

“U” rating and termination. See Briggs v. Women in Need, Inc.,

819 F. Supp. 2d 119, 128-129 (E.D.N.Y. 2011). As Defendants

point out, Principal Christie began to give Ms. Clarke negative

feedback before her pregnancy. However, the tone and frequency

of Principal Christie’s negative comments noticeably escalated in

December 2015, after Principal Christie allegedly became aware

of Ms, Clarke’s pregnancy. In earlier emails, Principal Christie fo-

cused on specific tasks, for instance specific meeting minutes that

were missing (see Email of Sept. 29, 2015 (Dkt. 44-46) at ECF p.

17), or teacher observations that Ms. Clarke needed to complete,

(see Email of Oct. 24, 2015 (Dkt. 44-46) at ECF p. 20). Beginning

in December, however, Principal Christie began to comment on

Ms. Clarke’s performance generally and began to memorialize

concrete dates and times of unsatisfactory work. (See Email of

Dec. 23, 2015 (Dkt. 44-46) at ECF p. 26.) A reasonable juror

could conclude that before December 2015, Principal Christie

wrote emails to give Ms. Clarke feedback, while after, she wrote

to document allegations for Ms. Clarke’s employment file. See,

e.g., Back, 365 F.3d at 124 (“a jury could find that the adminis-

trative deficiencies cited by the defendants were minor, and

unimportant to the defendants before the development of the

purported discriminatory motive”); United States v. New York City

Dep’t of Educ., 407 F. Supp. 3d 365, 395 (S.D.N.Y. 2018) (finding

evidence of intent to constructively discharge teachers where

school principal was “intentionally building a record of unsatis-

factory observation reports in order to oust” them). In addition,

16

on January 7, within weeks of learning about Ms. Clarke’s preg-

nancy, Principal Christie met with her to discuss her recurring

lateness —which Defendants characterized as “the most critical

issue with [Ms. Clarke’s] performance” at the time of the meet-

ing—and to require her to use a timecard to punch in daily. (See

NYCHCR Verified Ans. (Dkt. 41-3) 135.) Temporal proximity be-

tween pregnancy and an adverse employment action cannot, on

its own, support a finding of discriminatory intent. See Briggs,

819 F. Supp. 2d at 128. Here, however, Principal Christie’s dis-

criminatory comments coincided with her efforts to document

Ms. Clarke’s alleged performance deficiencies which could sup-

port an inference, based on their timing, that Principal Christie’s

documented concerns with Ms. Clarke were at least partially pre-

textual.

Finally, in their conversation on May 20, Principal Christie

acknowledged the link between Ms. Clarke’s pregnancy and the

persistent negative feedback when she stated: “It is better for you

to take the time to get yourself together than for me to be con-

stantly writing you up, harassing you, because that jeopardizes

your job... I know for me, if □□□ not well, you see me [sic] was

sick last week? I stayed home. I know I could not function on the

job.” (Meeting Tr. at 21.) Then and now, Principal Christie de-

nied that her assessment of Ms. Clarke’s job performance had

anything to do with her pregnancy. However, given the numer-

ous derogatory comments that Principal Christie made; the

temporal proximity of Principal Christie learning of Ms. Clarke’s

pregnancy and those comments, as well as the outset of more

pointedly negative feedback; and Principal Christie’s suggestion

that a pregnancy, like an illness, could keep an employee from

functioning on the job, the court cannot say, as a matter of law,

that discriminatory animus was not at least a motivating factor

in the adverse employment actions taken against Ms. Clarke. In

addition, Principal Christie maintains that a number of Ms.

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Clarke’s allegations simply did not occur. Thus, questions of ma-

terial fact exist as to Ms. Clarke’s Title VII claims and summary

judgment would be inappropriate. Likewise, Ms. Clarke’s claims

of discrimination under NYSHRL which is coextensive with Title

VII, and NYCHRL which is less stringent than Title VII, must ad-

vance to trial.

B. Hostile Work Environment

1. Title VII and NYSHRL

To make out a hostile work environment claim under Title VII,

the plaintiff must present evidence (1) that the conduct in ques-

tion was “objectively severe or pervasive,” that is, that it created

an “environment that a reasonable person would find hostile or

abusive”; (2) that the plaintiff subjectively perceived the environ-

ment as hostile or abusive; and (3) that the plaintiff was subject

to the hostile work environment “because of” her sex. Patane v.

Clark, 508 F.3d 106, 113 (2d Cir. 2007). On the first prong, the

“plaintiff need not show that her hostile working environment

was both severe and pervasive; only that it was sufficiently severe

or sufficiently pervasive, or a sufficient combination of these ele-

ments, to have altered her working conditions.” Pucino v. Verizon

Comms., Inc., 618 F.3d 112, 119 (2d Cir. 2010). Hostile work

environment claims under the NYSHRL are coextensive with Ti-

tle VII. Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 670

(S.D.N.Y. 2012).

No single incident alleged here would qualify as sufficiently “se-

vere” to sustain Ms. Clarke’s hostile work environment claim. See,

e.g., Sardina v. United Parcel Serv., Inc., 254 F. App’x 108, 110

(2d Cir. 2007) (summary order) (“[A] few off-color comments

including references to ‘office bitches’ and ‘Brooklyn bimbettes’

... do not rise to the level of an objectively hostile work environ-

ment.”) Rather, Ms. Clarke’s contends that she was subject to a

daily barrage of criticism, sometimes for infractions of no signifi-

cance or which did not occur, along with the directly

18

discriminatory comments and conduct alleged. A plaintiff must

clear a high bar in order to assert a hostile work environment

claim based on “intense scrutiny” from a supervisor. See Zam-

brano-Lamhaouhi, 866 F. Supp. 2d at 174 (denying summary

judgment where defendant made plaintiff perform duties outside

of her contract; did not excuse her from hallway and cafeteria

duty, despite her pregnancy; subjected her to intense scrutiny,

including of her bathroom usage, and “yelled” at her for using

the bathroom; expressed “disdain” for plaintiff; and prevented

her from attending a teacher development course); but see

Nugent v, St. Lukes—Roosevelt Hosp, Ctr., 303 F. App’x. 943, 945

(2d Cir. 2008) (“derogatory language,” “dismissive comments,”

and “intense scrutiny” insufficient to make out hostile work envi-

ronment claim); Colon v. Fashion Inst. of Tech. (State Univ. of New

York), 983 F. Supp. 2d 277, 292 (S.D.N.Y. 2013) (intense scru-

tiny and micro-management on a daily basis insufficient to make

out hostile work environment). “Allegations of even constant

reprimands and work criticism by themselves are not sufficient

to establish a hostile environment claim.” Lucentt v. Potter, 432

F. Supp. 2d 347, 362 (S.D.N.Y. 2006).

Principal Christie’s criticism of Ms. Clarke was at times unrelent-

ing and needlessly personal. However, with a handful of

exceptions, Principal Christie confined herself to discussing Ms.

Clarke’s job performance. The other comments, such as calling

Ms. Clarke fat and imitating her rubbing her belly and waddling,

are too sporadic to sustain a hostile work environment claim on

their own. See Alfano vy. Costello, 294 F.3d 365, 374 (2d Cir.

2002) (“As a general rule, incidents must be more than episodic;

they must be sufficiently continuous and concerted in order to be

deemed pervasive.”). As such, Defendants are entitled to sum-

mary judgment on Ms. Clarke’s hostile work environment claims

under Title VII and the NYSHRL.

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2. NYCHRL

In contrast to Title VII and the NYSHRL, the NYCHRL does not

require conduct to be severe or pervasive in order to sustain a

hostile work environment claim at the summary judgment stage

and “even a single comment may be actionable in appropriate

circumstances.” Gorokhovsky v. New York City Hous. Auth., 552

F, App'x 100, 102 (2d Cir. 2014) (summary order). As such, on

an NYCHRL hostile work environment claim, the court must de-

termine only whether “there is a triable issue of fact as to whether

the plaintiff has been treated less well than other employees be-

cause of” her membership in a protected class. Davis-Bell, 851 F.

Supp. 2d at 671. Given Principal Christie’s specific comments

about Ms. Clarke’s body and ability to meet her work obligations

while pregnant, and given the intensity of the scrutiny applied to

her, it would be inappropriate to grant summary judgment under

the NYCHRL which is to “be construed liberally for the accom-

plishment of [its] uniquely broad and remedial purposes.” N.Y.C.

Admin. Code § 8-130(a). Defendants’ motion for summary judg-

ment on Ms. Clarke’s hostile work environment claim under the

NYCHRL is therefore denied.

C. Retaliation

Title VII provides that “[i]t shall be an unlawful employment

practice for an employer to discriminate against any of his em-

ployees . . . because he has opposed any practice made an

unlawful employment practice by this subchapter, or because he

has made a charge, testified, assisted, or participated in any man-

ner in an investigation, proceeding, or hearing under this

subchapter.” 42 U.S.C. § 2000e-3(a). Claims for retaliation under

Title VII, and under the corresponding provisions of the NYSHRL,

are analyzed under the McDonnell Douglas framework. See Kelly

v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C., 716 F.3d

10, 14 (2d Cir. 2013) (‘The standards for evaluating . . . retalia-

tion claims are identical under Title VII and the NYSHRL.”).

20

Under the NYCHRL, a plaintiff “need only show the employer's

conduct was reasonably likely to deter a person from engaging

in protected activity.” Husser v. N.Y.C. Dep’t of Educ., 137 F. Supp.

3d 253, 274 (E.D.N.Y. 2015).

To state a prima facie claim for retaliation, a plaintiff must

demonstrate that (1) she engaged in protected activity; (2) the

employer was aware of that activity; (3) the employee suffered a

materially adverse action; and (4) there was a causal connection

between the protected activity and that adverse action. Kelly, 716

F.3d at 14. A causal connection between protected activity and a

retaliatory adverse action may be established either: “(1) indi-

rectly, by showing that the protected activity was followed

closely by discriminatory treatment, or through other circum-

stantial evidence such as disparate treatment of fellow employees

who engaged in similar conduct; or (2) directly, through evi-

dence of retaliatory animus directed against the plaintiff by the

defendant.” Gordon v. New York City Bd. of Educ., 232 F.3d 111,

117 (2d Gir. 2000).

Ms. Clarke first filed a notice of discrimination with the New York

City Commission on Human Rights on June 7, 2016 and Defend-

ants were served with that notice and her verified complaint on

September 2, 2016. (See NYCCHR Letter of Oct. 13, 2016 (Dkt.

44-19).) Defendants claim, without any authority, that no events

prior to October 26, 2016—when Ms. Clarke filed her complaint

with the DOE’s Office of Equal Opportunity—can serve as the ba-

sis for a retaliation claim. (Mem. at 19.) However, documentary

evidence clearly shows that they were served on September 2,

2016 with Ms. Clarke’s verified complaint in which she states,

“Respondents violated Title VII of the Civil Rights Act of 1964.”

(NYCCHR Compl. { 29). The Law Department is expected to

know the record and to cite to evidence and authority if it be-

lieves that the record is misleading or has been mischaracterized.

Based on the facts as discussed, Ms. Clarke has met her minimal

21

burden to make a prima facie case, and Defendants have prof-

fered sufficient nondiscriminatory explanations to rebut and shift

the burden back to her.

Ms. Clarke’s retaliation claims fail at the third step of the McDon-

nell Douglass inquiry, however. Ms. Clarke filed her first

complaint with the NYCCHR on June 7. (56.1 Resp. { 3.) That

day, Principal Christie met with Ms. Clarke and told her that she

would receive a “U” rating for the 2015-16 school year. (Id. 4

73.)’ The following day, Principal Christie drafted a disciplinary

letter to file stating that she had addressed Ms. Clarke’s alleged

unprofessionalism at prior meetings in March, April, and May.

(See Letter of June 8, 2016 (Dkt. 44-46) at ECF pp. 63-64). The

precise timing of events on June 7 are crucial and potentially dis-

positive facts. Defendants claim that Principal Christie informed

Ms. Clarke that she would receive a “U” rating before Ms. Clarke

filed her complaint with the Commission. (See Mem. at 19.) Ms.

Clarke addressed the timing of her complaints and subsequent

actions in her memorandum but failed to contest that key fact.

(See Opp. at 13.) The court therefore accepts Defendants’ version

of events; as such, it would be impossible for Ms. Clarke’s “U”

rating to have been given in retaliation for a complaint that was

unknown to Principal Christie or to the DOE at the time. See Gor-

don, 232 F.3d at 117.

To the extent that Ms. Clarke argues that the negative feedback

she received from Principal Christie after June 7, 2016 was retal-

iation for her protected activity, those claims are unpersuasive.

When Ms. Clarke returned to work for the Fall 2016 semester,

Principal Christie began to send nearly daily emails and letters

about her performance. However, there is not sufficient evidence

7 Ms. Clarke’s formal evaluation, which set out the reasons for her “U” rat-

ing in writing came on June 23. (56.1 Resp. { 78.)

22

that Principal Christie’s behavior towards Ms. Clarke was mean-

ingfully different after her complaint than it was before. As

discussed, Principal Christie subjected Ms. Clarke to intense scru-

tiny that began well before June 7, 2016, when Ms. Clarke made

her first complaint. Because Ms. Clarke does not point to any di-

rect or circumstantial evidence to show the requisite causal link

between her protected activities and subsequent actions against

her, Defendants are entitled to summary judgment on all of her

retaliation claims.

D. Aiding and Abetting

Unlike Title VII, “an individual defendant with supervisory con-

trol” may be held personally liable under the aiding and abetting

provisions of both the NYSHRL and NYCHRL if she “actually par-

ticipates in the conduct giving rise to a discrimination claim.”

Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995); see also

Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004) (“The

same standards of analysis used to evaluate aiding and abetting

claims under the NYSHRL apply to such claims under the NY-

CHRL because the language of the two laws is virtually

identical”); Griffin, Michael Godwin v. Sirva, Inc., 29 N.Y.3d 174,

187 (2017) (“Section 296(6) extends liability to persons and en-

tities beyond joint employers, and this provision should be

construed broadly.”). Here, to the extent that Ms. Clarke’s claims

of sex and pregnancy discrimination under the NYSHRL and NY-

CHRL move forward, as well as her claims of a hostile work

environment under the NYCHRL, Principal Christie may also face

personal liability under the relevant aiding and abetting provi-

sions.

23

IV. CONCLUSION

For the foregoing reasons, Defendants’ (Dkt. 31) Motion for Sum-

mary Judgment is GRANTED IN PART and DENIED IN PART.

The parties are DIRECTED to contact the chambers of Magistrate

Judge James Orenstein concerning the next steps in this case.

SO ORDERED.

Dated: Brooklyn, New York

October 13, 2020

/s/ Nicholas G. Garaufis

NICHOLAS G. GARAUFIS

United States District Judge

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