# Clarke v. New York City Department of Education

> District Court, E.D. New York · October 13, 2020

URL: https://www.frixlaw.com/law-library/cases/10305134

## Case

- **Court:** District Court, E.D. New York
- **Decided:** October 13, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

17

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.

19

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305134. Public record. Not legal advice.