Jones v. New York City Department of Education

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ANTHONY JONES,

MEMORANDUM AND ORDER

Plaintiff,

Case No. 1:16-cv-1149 (FB) (RML)

-against-

NEW YORK CITY DEPARTMENT OF

EDUCATION, ET AL.,

Defendants.

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Appearances: For the Defendant:

For the Plaintiff: JAMES E. JOHNSON

RUDY DERMESROPIAN, ESQ. Corporation Counsel for the City of

260 Madison Avenue, 15th Floor New York

New York, NY 10016 By: CHRISTOPHER COYNE, ESQ.

Of Counsel

100 Church Street, Room 2-117

New York, NY 10007

BLOCK, Senior District Judge:

Plaintiff Anthony Jones brings claims against the New York City Department

of Education (“DOE”), Bernard Gassaway, and unidentified defendants alleging

discrimination and retaliation in violation of the Age Discrimination in Employment

Act (“ADEA”). Defendant New York City Department of Education has moved for

summary judgment.

The facts of this case were summarized in the Memorandum and Order

issued on February 21, 2018 granting in part and denying in part the defendant’s

motion to dismiss. See ECF No. 21. For the reasons that follow, defendant’s

motion for summary judgment is denied.

I.

Summary judgment is appropriate when “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining

whether summary judgment is appropriate, we must resolve all ambiguities and draw

all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Tolbert v. Smith, 790 F.3d 427,

434 (2d Cir. 2015).

II. Plaintiff's Title VII Age Discrimination Claim

Employment discrimination cases are analyzed using the McDonnell Douglas

Corp. v. Green burden shifting framework. 411 U.S. 792 (1973). Under the test, “a

plaintiff must first establish a prima facie case of discrimination by showing that:

‘(1) she is a member of a protected class; (2) she is qualified for her position; (3) she

suffered an adverse employment action; and (4) the circumstances give rise to an

inference of discrimination.’” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d

72, 83 (2d Cir. 2015) (quoting Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d

Cir. 2000)).

After a plaintiff has established a prima facie case, “a presumption arises that

more likely than not the adverse conduct was based on the consideration of

impermissible factors.” Id. (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S.

248, 253-54 (1981)). At that point, the burden “shifts to the employer to ‘articulate

some legitimate, nondiscriminatory reason’ for the disparate treatment.” Id. (citing

McDonnell Douglas, 411 U.S. at 802). “If the employer articulates such a reason,

the burden shifts back to the plaintiff to prove that the employer's reason ‘was in fact

pretext’ for discrimination.” Id. (citing McDonnell Douglas, 411 U.S. at 804).

The purpose of the McDonnell Douglas burden-shifting framework is to

“progressively ... sharpen the inquiry into the elusive factual question of intentional

discrimination.” Texas Dep't of Cmty. Affairs, 450 U.S. at 255 n.8.

The Court is mindful of the Second Circuit’s warning that it “must be

especially cautious in deciding whether to grant th[e] drastic provisional remedy [of

summary judgment] in a discrimination case, because the employer's intent is often

at issue and careful scrutiny may reveal circumstantial evidence supporting an

inference of discrimination.” Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999);

see also Mandell v. Cty. of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003).

A. Member of a Protected Class

The parties do not dispute that plaintiff was 61 at the time he was terminated,

which places him within a protected class. See 29 U.S.C. § 631(a) (providing that

the ADEA applies to individuals who are at least 40 years of age). The defendant

argues the plaintiff fails to establish that age was the “but-for” cause of his

termination because of an incident where he allegedly swore at a group of students

from the track team (“the swearing incident”). See ECF No. 45-1 at 4. In the

defendant’s view, the swearing incident was the cause of plaintiff’s firing.

In response, the plaintiff alleges that the swearing incident was fabricated and

contends that he was fired on pretextual grounds. Plaintiff points to the fact that the

purported recording of the incident has not been produced, the investigation was

conducted by the subject of plaintiff’s complaints, which arguably poses a conflict

of interest, and the student who allegedly complained does not even report plaintiff

as making the statements in question. Since there are factual disputes regarding

material aspects of the swearing incident, the defendant’s arguments do not

extinguish plaintiff’s prima facie case on this element.

B. Qualified for Position

Plaintiff contends he had an “extensive, long and very successful career as a

track coach” and “was involved with the track team at Boys and Girls High School

(“BGHS”) for approximately 42 years without any complaints or write-ups.” ECF

No. 46 at 7. Although he was not a certified teacher, plaintiff held a master’s degree

in secondary education, and his students performed well on the Regents exams.

The defendant notes plaintiff was not a licensed teacher and that his substitute

teaching certificate did not entitle him to be designated as a long-term substitute.

These contentions do not undermine plaintiff’s ability to establish this element of

his prima facie case. See Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 45

(2d Cir. 2015) (“[a]t the summary judgment stage, a plaintiff may satisfy this burden

by showing that she ‘possesses the basic skills necessary for performance of [the]

job’”) (quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir.

2001))

C. Adverse Employment Action

An adverse employment action occurred when plaintiff was terminated in the

summer of 2014. See, e.g., Green v. Town of E. Haven, 952 F.3d 394, 404 (2d Cir.

2020) (“[p]lainly an employee's ‘discharge,’ 29 U.S.C. § 623(a)(1), is an adverse

employment action”).

D. Inference of Discrimination

Plaintiff asserts that he has raised an inference of discrimination because the

defendant treated him differently than a similarly situated, younger employee who

engaged in similar conduct. The defendant asserts that plaintiff cannot raise an

inference of discrimination because (1) plaintiff failed to present evidence that

similarly situated younger workers were treated more favorably, (2) plaintiff was

hired and fired by the same person, who was also in the same protected group as

plaintiff, and (3) plaintiff was replaced by a person who was a part of the protected

age group.

As to the first argument, plaintiff presented evidence that a substantially

younger and less experienced coach – who had worked as the head coach of the

female track team at BGHS – was treated more favorably than plaintiff.

Although the principal who fired plaintiff is also a member of the same

protected class, this fact is not dispositive. The Supreme Court has rejected the idea

that one member of a protected class cannot discriminate against another member of

that same class. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78

(1998) (“Because of the many facets of human motivation, it would be unwise to

presume as a matter of law that human beings of one definable group will not

discriminate against other members of their group”). Moreover, the plaintiff points

out that he was a teacher at BGHS for many years before defendant Gassaway

became principal.

Finally, though the defendant correctly notes plaintiff was initially replaced

by a member of the same age group, that was apparently a temporary change. The

permanent replacement was “significantly younger.” ECF No. 46 at 19.

The burden to establish a prima facie case is “neither onerous nor intended to

be rigid, mechanized or ritualistic.” Tolbert v. Smith, 790 F.3d 427, 435 (2d Cir.

2015) (internal citations and quotation marks omitted). The Court finds that plaintiff

has established a prima facie case.

E. Burden Shift to Defendant: Legitimate, Nondiscriminatory Reasons for

the Disparate Treatment

The defendant contends plaintiff was terminated because of the swearing

incident. Specifically, three students approached Principal Gassaway and reported

that plaintiff had yelled and cursed at them. According to the defendant, Principal

Gassaway heard an audio recording of what appeared to be plaintiff screaming and

cursing at a student. While the nature of this incident is disputed by plaintiff, the

defendant has “clearly set forth, through the introduction of admissible evidence, the

reasons for” the disparate treatment. Burdine, 450 U.S. at 255; see also Bucalo v.

Shelter Island Union Free Sch. Dist., 691 F.3d 119, 132 (2d Cir. 2012). This is

sufficient to satisfy the burden of establishing legitimate, non-discriminatory reasons

for the termination of plaintiff.

F. Burden Shift to Plaintiff: Employer’s Reasons Were Pretext for

Discrimination

Where an employer articulates a non-discriminatory reason for firing the

plaintiff, the burden shifts back to the plaintiff to “prove that the employer's

proffered reason was a pretext for discrimination.” Delaney v. Bank of America

Corp., 766 F.3d 163, 168 (2d Cir. 2014) (quoting McPherson v. N.Y.C. Dep't of

Educ., 457 F.3d 211, 215 (2d Cir. 2006)). To establish the employer’s reason was in

fact a pretext for discrimination, the plaintiff must establish the employer was more

likely than not motivated by a discriminatory reason or that the employer's reason is

unworthy of belief. See McDonnell Douglas, 411 U.S. at 804-05; Burdine, 450 U.S.

at 256. Although “direct evidence of an employer’s discriminatory intent will rarely

be found,” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997), “[e]ven in

the discrimination context ... a plaintiff must provide more than conclusory

allegations to resist a motion for summary judgment,” Delaney, 766 F.3d at 170.

Plaintiff contends he has put forward more than conclusory allegations and that

triable issues of fact exist that should be decided by a jury.

Although plaintiff did not possess a full-time teaching certificate, there is

evidence that he was effectively fulfilling the responsibilities of a regular teacher at

BGHS by teaching five math classes and acting as the track coach. EFC No. 46 at

20. Moreover, there is a well-documented history of plaintiff filing successful

grievances arguing that he was coded improperly. This meant that the school was

treating him as a substitute teacher for purposes of pay and benefits, although he was

working full time. In his deposition, plaintiff conveyed that the principal who fired

him made numerous age-related comments – including “I was 12 when he started

coaching” and “you old timers, if you don’t know how to do [certain things] I’m

going to get rid of you.” See ECF No. 46 at 12-13 (collecting statements). And, of

course, plaintiff disputes the swearing incident that serves as the primary basis of

plaintiff’s termination.

With this history in mind, plaintiff principally argues that another teacher,

Jamaal Harvey, was treated more favorably than he was. Mr. Harvey was allegedly

also involved in “heated conversations” like plaintiff. ECF No. 46 at 7. Specifically,

Harvey allegedly “curse[d] at Principal Hall from the Marcy Avenue campus, which

was confirmed by the signed statement of Assistant Coach Cassandra Clark.” ECF

No. 46-1 at 79. However, this did not lead to Mr. Harvey’s termination; rather he

was promoted and ultimately permitted to replace plaintiff as the boy’s track coach.

The Court is persuaded that a reasonable juror could find the defendant’s

reasons for terminating the plaintiff were related to a discriminatory motive. Thus,

there are genuine issues of material fact concerning plaintiff’s age discrimination

claim. The defendant’s motion for summary judgment is denied as to that claim.

III. ADEA Retaliation

The ADEA forbids an employer from retaliating against an employee for

complaining of employment discrimination on the basis of age. Kessler v.

Westchester Cty. Dep't of Soc. Servs., 461 F.3d 199, 205 (2d Cir. 2006). ADEA

retaliation is also “analyzed under the McDonnell Douglas burden-shifting test.”

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010).

To establish a prima facie case, Jones “must show (1) that []he participated in

a protected activity, (2) that []he suffered an adverse employment action, and (3) that

there was a causal connection between h[is] engaging in the protected activity and

the adverse employment action.” Gorzynski, 596 F.3d at 110. In deciding whether

an allegation is plausible, “judges [are] to rely on their ‘experience and common

sense,’ and to consider the context in which a claim is made.” Irrera v. Humpherys,

859 F.3d 196, 198 (2d Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009)).

Plaintiff has provided evidence that he successfully filed at least four

grievances seeking pay and benefits consistent with his work – the protected activity.

Plaintiff also provided evidence that Principal Gassaway was unfavorably disposed

toward him because of his filing of the grievances. See ECF No. 46 at 23. As

discussed above, this meant the school was treating plaintiff as a substitute teacher

even though he was working full-time, negatively impacting his pay and benefits.

There is evidence that a condition of plaintiff’s employment was that he stop filing

such grievances. A causal connection can be established “indirectly by showing that

the protected activity was closely followed in time by the adverse employment

action.” Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 131 (2d Cir.

2012) (internal citations omitted). “[C]ourts in this circuit have typically measured

that gap as a matter of months, not years.” Bucalo, 691 F.3d at 131. Plaintiff’s last

grievance was filed in 2014, and he was fired in July of 2014.

Plaintiff adequately alleges that the adverse employment action of termination

was motivated by his filing of grievances, and a reasonable juror could conclude the

elements of ADEA retaliation have been established.

CONCLUSION

For the foregoing reasons, defendant’s motion for summary judgment is

denied.

SO ORDERED.

_/S/ Frederic Block _______

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

February _16_, 2021