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holding that a teacher's lack of a personal classroom, while inconvenient, was not an adverse employment action absent evidence showing an inability to perform her job
Summary of this case from Harewood v. N.Y.C. Dep't of Educ.Opinion
No. 01 Civ. 9265 (SAS)
January 21, 2003
Elizabeth Gordon, New York, NY., for Plaintiff (Pro se).
Cindy M. Schmitt, Assistant Corporation Counsel of the City of New York, New York, NY., for Defendant.
OPINION AND ORDER
Pro se plaintiff Elizabeth Gordon, an African-American woman, brings this action against the New York City Board of Education (the "Board") alleging racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). The discriminatory acts about which Gordon complains include: (i) the improper evaluation of her teaching; (ii) the failure to transfer her to a different school district; (iii) the failure to provide her with a classroom while assigned to the 8 Plus Program (the "Program"); and (iv) the diminishment of her teaching responsibilities at Public School ("PS") 234.
The Board now moves for summary judgment. For the following reasons, the Board's motion is granted and the case is dismissed.
I. FACTUAL BACKGROUND
Gordon was hired by the Board in 1977 as a temporary per diem teacher, and remained employed in that capacity until 1981. See 5/13/02 Deposition of Elizabeth Gordon ("Gordon Dep. I"), Ex. A to Declaration of Cindy M. Schmitt, attorney for the Board ("Schmitt Dec."), at 24-25. On September 9, 1981, Gordon was appointed as a resource room teacher in Community School District Two ("District Two"). See id. at 24, 35.
In September 1996, Gordon was charged with incompetence pursuant to section 3020-a of the New York Education Law ("3020-a proceedings"). See id. at 43-44. After a hearing, Gordon was found guilty of some of the charges. See id. at 44. The remaining charges were dismissed. See id. The penalty imposed was 4 1/2 years of suspension with pay and 3 weeks of suspension without pay. See Complaint ("Compl.") at 6. Following her suspension, Gordon was returned to the classroom provided she complete a graduate-level teaching course. See Gordon Dep. I at 44, 59.
On January 24, 2001, Gordon was assigned to the 8 Plus Program, which was a small program designed to assist students who had not successfully graduated eighth grade. See 5/1/02 Deposition of Michael Laforgia, a school administrator ("Laforgia Dep."), Ex. C to Schmitt Dec., at 22. At the beginning of the school year, there were approximately thirty-two students in the Program. By the time Gordon started, however, there were only about sixteen students enrolled. See id. at 22, 39; Gordon Dep. I at 73.
There were four full-time teachers including Gordon and one part-time teacher assigned to the Program. See 8/19/02 Affidavit of Elizabeth Gordon in Opposition to Defendant's Motion ("Gordon Aff."), at ¶ 10.2. The Program also employed a director, social worker, sex education teacher, guidance counselor, and drug intervention instructor. See Gordon Dep. I at 71-72. Gordon was the only African-American teacher assigned to the Program. See Gordon Aff. ¶ 10.3.
The Program was allocated two classrooms and one office in the PS/IS 89 complex. See Laforgia Dep. at 38, 43. By the time Gordon was assigned to the school in January 2001, the two classrooms had been assigned to the two teachers who taught the four core curriculum courses. See id. at 44. Gordon, who taught no more than two students for one hour a day, see Gordon Aff. ¶ 5, was told that she would not have her own classroom because of space constraints and would have to be "creative and innovative" in finding space to teach her students. See Gordon Dep. I at 64. She was offered a variety of spaces in which to teach, including an office, the library, and a conference room off of the principal's suite.See Laforgia Dep. at 39-40; Gordon Dep. I at 86. Other teachers and service providers were also forced to share offices and classrooms because of the limited accommodations available to the Program. See Laforgia Dep. at 44.
Gordon was the only teacher in the Program assigned to only two students. See Gordon Dep. I at 100-01.
On May 31, 2001, Barbara Levine, the District Administrator of Special Education ("DASE"), conducted an evaluation of Gordon's teaching. See Gordon Dep. I at 143. Gordon received an unsatisfactory rating primarily because of her "improper use of English and failure to use appropriate instructional techniques and methodology." See Gordon Aff. ¶ 10.13; 10/31/01 Observation Report, Ex. to Gordon Aff., at 44. Gordon was scheduled to be observed again on June 18, 2001, but was absent that day due to a "crisis" and subsequently remained out of work for the remainder of the school year. See Gordon Dep. I at 162; 7/9/01 Letter from Gordon to Congresswoman Jackson-Lee. Thus, by the time the school year ended on June 27, 2001, Gordon had not been observed again. Consequently, Gordon received an unsatisfactory rating for her 2000-01 annual observation based solely on the May 31, 2001 observation report. See Gordon Dep. I at 163-65. Gordon grieved the unsatisfactory observation through her union.See id. at 161. The grievance was sustained and Gordon's unsatisfactory observation report and annual evaluation were reversed. See id. at 163, 165.
On June 11, 2001, Gordon requested a seniority transfer out of District Two. See id. at 38. Gordon's request was denied. See id. The following day, Gordon requested a medical hardship transfer out of the district due to an "anxiety disorder." See id. at 38-39; 5/07/01 Medical Bill from Metropolitan Hospital Center, Ex. to Gordon Aff., at 88. This request was also denied. See Gordon Dep. I at 39.
On July 12, 2001, Gordon filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC") alleging that, between January 24, 2001 and June 20, 2001, District Two administrative personnel and the Board continually discriminated against her in an effort to drive her out of the school system and in retaliation for her partial success in the 3020-a proceedings. See Charge of Discrimination, Attachment to Compl. On July 25, 2001, Gordon was issued a "right to sue letter". See EEOC Dismissal and Notice of Rights, Attachment to Compl.
Over the past ten years, Gordon has been continually litigating against the Board for similar acts of racial discrimination and retaliation. See Order, Gordon v. Board of Educ. for City of New York, No. 93-CV-6660 (S.D.N.Y. July 10, 1996) (Stein, J.) (dismissing complaint), aff'd, 108 F.3d 1369 (2d Cir.), cert. denied, 522 U.S. 818,and reh'g denied, 522 U.S. 1036 (1997); Order, Gordon v. Board of Educ. for City of New York, No. 97-CV-8539 (S.D.N.Y. Nov. 19, 1999) (Motley, J.) (dismissing complaint), vacated, 232 F.3d 111 (2d Cir. 2000), and on remand, Order (S.D.N.Y. June 7, 2002) (jury awarding Gordon $5,000).
On September 4, 2001, after Gordon's EEOC complaint had been adjudicated, Gordon was assigned to PS 234, which was located on the corner of Greenwich and Warren Streets in Manhattan. See 6/21/02 Deposition of Elizabeth Gordon ("Gordon Dep. II") at 76. PS 234 was evacuated on September 11, 2001, due to the terrorist attacks on the World Trade Center. See Gordon Dep. I at 214-15. The students and faculty of PS 234 were relocated two days later to PS 41. See Gordon Dep. I at 215; Gordon Dep. II at 80. On September 21, 2001, Gordon requested permission from her principal, Anna Switzer, to take a day off from work to appear on a television show to discuss the events of September 11, 2001. See Gordon Dep. I at 222. Switzer denied Gordon's request. See id.
Initially, Gordon was given teaching responsibilities at PS 234. See Gordon Dep. I at 224-25. However, after September 11, 2001, Gordon's responsibilities were primarily administrative, such as serving on lunch and yard duty, moving and unpacking boxes, putting memos in teachers' boxes, and running errands. See Gordon Aff. ¶ 15. Many of the other teachers also performed lunch and yard duty. See id. ¶ 15.1.
On October 19, 2001, Gordon filed the instant lawsuit See Gordon Dep. II at 81. On November 9, 2001, Gordon's request for a transfer was granted and she was transferred to Community School District Five ("District Five"). See Gordon Dep. I at 35.
II. SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is `material' for these purposes if it `might affect the outcome of the suit under the governing law[,]' [while] [a]n issue of fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Shade v. Housing Auth. of City of New Haven, 251 F.3d 307, 314 (2d Cir. 2001) (internal quotation marks and citations omitted) "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citations omitted)
In assessing the record to determine whether genuine issues of material fact are in dispute, a court must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d Cir. 2001). "Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must `set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).
The non-moving party may not, however, "rest upon . . . mere allegations or denials." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) ("If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted.") (internal quotation marks, citations, and alterations omitted). Mere conclusory statements, conjecture or speculation cannot by themselves create a genuine issue of material fact. See Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
"The salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation."Nicastro v. Runyon, 60 F. Supp.2d 181, 183 (S.D.N.Y. 1999) (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)). Courts within "the Second Circuit have not hesitated to grant defendants summary judgment in such cases where . . . plaintiff has offered little or no evidence of discrimination." Scaria v. Rubin, No. 94 Civ. 3333, 1996 WL 389250, at *5 (S.D.N.Y. July 11, 1996), aff'd, 117 F.3d 652 (2d Cir. 1997). Indeed, it is now "beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases."Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).
However, greater caution must be exercised in granting summary judgment in employment discrimination cases where the employer's intent is genuinely at issue. See Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). This is so because "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law." Bickerstaff, 196 F.3d at 448 (internal quotation marks and citation omitted, brackets in original). But even where an employer's intent is at issue, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). "Mere speculation or conjecture as to the true nature of facts [cannot] overcome the motion." Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995) (quoting Knight v. United States Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986).
III. DISPARATE TREATMENT CLAIM
A. Legal Standard
Title VII makes it unlawful for an employer:
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . . 42 U.S.C. § 2000e-2.
A Title VII disparate treatment claim can be asserted if an employer treats someone "less favorably than others because of [her] race, color, [or] religion." Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993).
The Supreme Court has "established an allocation of the burden of production and an order for the presentation of proof in . . . discriminatory treatment cases." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Where, as here, the plaintiff has not alleged any direct evidence of discrimination, she must proceed under the burden-shifting framework developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this analysis, the plaintiff must first prove a prima facie case of discrimination. See id.; see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If the plaintiff establishes aprima facie case, "a presumption of discrimination is created and the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment action."Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). "If the defendant meets this burden of production, `the presumption drops out of the analysis,' and the plaintiff must prove that he or she was actually the victim of intentional discrimination." Little v. National Broad, Co., 210 F. Supp.2d 330, 376 (S.D.N.Y. 2002) (quoting Farias, 259 F.3d at 98).
B. Plaintiff's Prima Facie Case
Gordon bases her claim of racial discrimination on the following four allegations: she was improperly evaluated, denied a transfer to a different school district, denied a classroom while assigned to the 8 Plus Program, and stripped of teaching responsibilities while at PS 234. See Gordon Dep. I at 39-39, 64-65, 143. In addition, Gordon claims that she was not told who her rating officer would be, that she was asked by LaForgia to disseminate information to other teachers, and that her Board records contain inaccurate dates of her suspension. See Compl. at 8, 11, 14.
I note at the outset that the diminution of Gordon's responsibilities at PS 234 occurred after she received a right to sue letter from the EEOC. A plaintiff does not have standing to sue under Title VII for acts that occurred after the issuance of a right to sue letter, see 42 U.S.C. § 2000e-5 (f)(1), unless those acts are "reasonably related" to the allegations that were brought before the EEOC. Almendral v. New York State Office of Mental Health, 743 F.2d 963, 967 (2d Cir. 1980). Here, there is some question as to whether the acts are "reasonably related". On the one hand, the events at PS 234 involve a different school, different individuals, and different acts than those investigated by the EEOC. On the other hand, Gordon's EEOC complaint includes allegations of retaliation broad enough to encompass the conduct at PS 234. In the interest of judicial economy, however, I will consider the conduct at PS 234 in this action.
To establish a prima facie case of disparate treatment, a plaintiff must show that: (1) she is a member of a protected class; (2) she satisfactorily performed the duties of her position; (3) she was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997).
The Board does not dispute that Gordon is a member of a protected class. See Defendant's Memorandum of Law in Support of its Motion for Summary Judgment ("Def. Mem.") at 4. Nor does the Board dispute that Gordon satisfactorily performed her job duties). See id. The Board argues, however, that Gordon has failed to establish a prima facie case of disparate treatment because she offers no evidence to demonstrate that three of the four alleged discriminatory acts constitute adverse employment actions and no evidence to suggest that any of the actions were taken because of her race. See id. at 1.
The Board concedes, for the purposes of this motion only, that Gordon performed her job duties satisfactorily despite evidence to the contrary — namely, a finding of incompetence in 1996. See Def. Mem. at 4 n. 1.
The Board does not contest that Gordon's allegations regarding the diminution of her teaching responsibilities constitute an adverse employment action. See Def. Mem. at 4 n. 2.
1. Adverse Employment Actions
All but one of the alleged discriminatory acts do not constitute adverse employment actions. For a plaintiff to demonstrate an adverse employment action, she must show that she was subjected to a "materially adverse change" in the terms and conditions of employment. See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). A "materially adverse" change in working conditions "must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. (internal quotation marks and citations omitted). That is, "`not everything that makes an employee unhappy is an actionable adverse action.'" Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002) (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)). While there is no exhaustive list of what constitutes an adverse employment action, the following actions, among others, qualify: "`termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.'" Galabya, 202 F.3d at 640 (quoting Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993).
It is well-settled that negative evaluations alone, without any accompanying adverse consequences, such as a demotion, diminution of wages, or other tangible loss, do not constitute adverse employment actions. See, e.g., Valentine v. Standard Poor's, 50 F. Supp.2d 262, 284 (S.D.N.Y. 1999) ("Given that plaintiff's negative reviews did not lead to any immediate tangible harm or consequences, they do not constitute adverse actions materially altering the conditions of his employment."), aff'd, 205 F.3d 1327 (2d Cir. 2000); Pellei v. International Planned Parenthood Fed'n, Inc., No. 96 Civ. 7014, 1999 WL 787753, at *12 (S.D.N.Y. Sept. 30, 1999) (citations omitted) (granting summary judgment where plaintiff "fail[ed] to demonstrate that the performance evaluations caused a materially adverse change in the conditions of her employment, such as demotion, suspension, or loss of wages"). Gordon does not allege that her negative rating caused any adverse consequences other than extreme stress and anxiety, which are insufficient to establish an "adverse employment action". See Castro v. New York City Bd. of Educ. Pers., No. 96 Civ. 6314, 1998 WL 108004, at *7 (S.D.N.Y. Mar. 12, 1998) ("[A]lthough reprimands and close monitoring may cause an employee embarrassment or anxiety, such intangible consequences are not materially adverse alterations of employment conditions."). Moreover, Gordon grieved her negative rating through her union and was successful at having it overturned. See Gordon Dep. I at 161, 163, 165. Clearly, Gordon could not have suffered adverse employment consequences from an evaluation that was withdrawn from her record.
"Denial of a transfer request may constitute an adverse employment action in certain circumstances." Pimentel v. City of New York, No. 00 Civ. 326, 2002 WL 977535, at *3 (S.D.N.Y. May 14, 2002). However, a "`pure lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.'" Id. (quoting Adeniji v. Administration for Children Serv., 43 F. Supp.2d 407, 426 (S.D.N.Y. 1999)); see also Galabya, 202 F.3d at 641 (holding that plaintiff's transfer from one special education school to another was not an adverse employment action because plaintiff offered no evidence to show that the new assignment was "less prestigious, materially less suited to his skills and expertise, or materially less conducive to career advancement"). Gordon concedes that she was seeking a lateral transfer to "the same position" in another district. See Gordon Dep. II at 105-06. Moreover, Gordon does not claim, nor could she prove, that the denial of her requests to transfer caused any material change to the terms and conditions of her employment, salary, or promotional opportunities. Thus, the denial of Gordon's requests for a transfer out of District Two does not constitute an adverse employment action.
In order for the Board's failure to provide Gordon with her own classroom to constitute an adverse employment action, Gordon must show that the lack of a permanent classroom was "more disruptive than a mere inconvenience" and had a "sufficiently deleterious" effect on her ability to perform her job responsibilities. Galabya, 202 F.3d at 640 (internal quotation marks and citations omitted) (finding inferior facilities at school where teachers rotate through classrooms rather than have their own classrooms constitutes a "minor, ministerial stumbling block" — not an adverse employment action). While Gordon has demonstrated that the lack of a permanent classroom was a great inconvenience to her, she has not offered any evidence to show that such undesirable working conditions prevented her from doing her job. On the contrary, Gordon presented evidence that her students succeeded academically despite the lack of sufficient instructional space. See Gordon Aff. ¶ 8.5 (citing New York City Public Schools Spring 2001 Reading and Mathematics Exam Rosters). Thus, Gordon's lack of her own private classroom does not constitute an adverse employment action.
The only one of Gordon's allegations that may constitute an adverse employment action is her claim that she was "stripped of her professional title and job responsibilities" at PS 234 by having to perform duties that are typically the responsibility of a school aid. However, even if Gordon suffered an adverse employment action while at PS 234, Gordon has offered no evidence to suggest that such action was based on her race. See infra Part III.B.2.
With respect to the other actions about which Gordon complains, Gordon has not even alleged how these actions adversely affected her. For example, Gordon cannot adequately explain why it is important to know the identity of one's rating officer. See Gordon Dep. I at 102. Without such evidence, Gordon cannot make out a prima facie case of disparate treatment on the basis of these actions.
2. Inference of Discrimination
Assuming arguendo that Gordon has suffered from adverse employment actions, she nonetheless fails to establish a prima facie case because she has not shown that the circumstances surrounding the adverse actions give rise to an inference of race discrimination. Gordon does not presentany evidence that her treatment was racially motivated. She does not allege that she was subjected to racially derogatory comments, nor has she presented any other evidence of racial animus.
Gordon alleges, for example, that unlike the white teachers, she was "singled out and formally observed," but presents absolutely no evidence to suggest that such treatment was related to her race. Likewise, Gordon presents not even a scintilla of evidence to suggest that the denial of her requests for a transfer were related to her race.
With respect to her lack of a classroom assignment at the 8 Plus Program, Gordon attempts to show discrimination by comparing herself to white employees. However, Gordon was not the only person required to share an office or classroom. See Laforgia Dep. at 43-44 (testifying that the teachers and service providers "used rooms interchangeably" and were sometimes required to hold conferences in the hallways because of the limited accommodations available to the Program). There were only two classrooms and one office for four full-time and one part-time teacher, as well as several service providers. Thus, the dearth of available space affected all members of the staff of the Program, regardless of race.
"One of the most effective methods of establishing discrimination is to compare plaintiff's treatment to the treatment of employees outside the protected class." Bennett v. Watson Wyatt Co., 136 F. Supp.2d 236, 249 n. 7. (S.D.N.Y. 2001) (citations omitted),aff'd, No. 01-7772, 2002 WL 31628399 (2d Cir. Nov. 21, 2002).
The fact that the two available classrooms were assigned to white teachers does not raise an inference of discrimination because those teachers were not similarly situated. They were responsible for teachingall of the students in the Program in all content areas, whereas Gordon had only one or two students for one hour a day, thereby requiring much less space. Moreover, Gordon was not assigned to the Program until the middle of the school year, long after the other teachers had established themselves in their classrooms.
Lastly, Gordon does not present any evidence to demonstrate that her diminishment of responsibilities at PS 234 was based on race. On the contrary, Gordon offers evidence to suggest that the change in her duties was related to a disagreement she had with the principal regarding her desire to appear on a television show. See Gordon Dep. I at 224-25 (acknowledging that her teaching duties ceased after she was "berated" by the principal). Moreover, Gordon has presented no evidence to show that white teachers were treated differently than her, but rather admits that the other teachers did many of the same administrative duties as she.See Gordon Dep. II at 83-84.
Because Gordon offers only speculation and conclusory allegations that the Board's actions were motivated by race, she has failed to make out aprima facie case of disparate treatment and the Board is entitled to judgment as a matter of law.
C. Defendant's Non-discriminatory Reasons
Even if Gordon had established a prima facie case, the Board has articulated legitimate non-discriminatory reasons for each of the alleged adverse employment actions.
With respect to Gordon's claim that her annual evaluation was unfair, the Board asserts that her rating was based solely on the January 2001 unsatisfactory observation because Gordon was only observed once. See Def. Mem. at 11-12. A teacher's annual evaluation is typically based upon observations conducted throughout the year. See id. at 11. However, Gordon was absent on the scheduled date for her second observation and subsequently remained out of work for the remainder of the year.
Regarding the denial of Gordon's request for a transfer, the Board asserts that its decision was based upon Gordon's unsatisfactory rating and her length of service at the 8 Plus Program. See id. at 12-13. To be eligible for a transfer, a teacher must not have received an unsatisfactory rating within the last three years and must have served for at least one year in the school from which the transfer is sought.See Agreement between the Board and United Federation of Teachers Local 2, American Federation of Teachers, AFL-CIO ("Board Agreement"), Ex. D to Schmitt Decl. Gordon received an unsatisfactory rating for the 1999-2000 school year, the year immediately preceding her request for transfer, and was appointed to the Program approximately six months before she requested a transfer.
As to the claim that she was not assigned her own classroom, the Board maintains that there was a shortage of space in the school building that affected all of the teachers and staff of the Program. See Def. Mem. at 12. Moreover, Gordon had only two students as compared to the other teachers who had sixteen students.
During a three-week period when one of the teachers was absent from the Program, Gordon was allowed to use her vacant classroom. See Gordon Dep. I at 84. The fact that Gordon was given a classroom, when one became available, demonstrates that the Board's actions were based on space constraints rather than discriminatory animus.
Lastly, with respect to Gordon's allegations of diminution of responsibilities, the Board claims that Gordon's responsibilities at PS 234 changed after September 11, 2001 because of the conditions at the school once it was displaced. See id. All teachers were needed to help with administrative duties to ensure the school's functioning under the new conditions.
Because the Board has proffered legitimate non-discriminatory reasons for each of the alleged actions, Gordon's claims of racial discrimination must fail, unless she can prove that the Board's reasons are pretextual. However, just as there is insufficient evidence in the record to establish a prima facie case, there is nothing in the record to rebut the Board's reasons. See Chambers v. TRM Copy Ctr. Corp., 43 F.3d 29, 38 (2d Cir. 1994) ("Pretext may be demonstrated either by the presentation of additional evidence showing that the employer's proffered explanation is unworthy of credence, . . ., or by reliance on the evidence comprising the prima facie case, without more . . . .") (internal quotation marks and citations omitted) Accordingly, Gordon's claims of racial discrimination must fail.
IV. RETALIATION CLAIM
Gordon alleges that she was denied a license to be a Supervisor of Special Education Programs in retaliation for the "3020-a [incompetence] proceedings" in 1996. See Gordon Dep. I at 112. In order to establish aprima facie case of retaliation, a plaintiff must prove that: (1) she engaged in protected activity; (2) defendant was aware of the activity; (3) she was subjected to an adverse employment action; and (4) there is a causal connection between the protected activity and the adverse employment action. See Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996). Assuming arguendo that Gordon can show that she was subjected to some adverse employment action, she cannot establish a causal connection between her alleged protected activity in November 1996 and the Board's alleged retalitory conduct in January 2001.
The "protected activity" here was Gordon's challenge to the charges of incompetence brought against her by the Board.
There are two methods of establishing a causal connection: indirectly by "showing that the protected activity was followed by discriminatory treatment . . . or directly through evidence of retaliatory animus."Summer v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). Because Gordon has presented no direct evidence of retaliatory animus, she must rely on temporal proximity alone. For mere temporal proximity to establish causality, the intervening period must be "very close". Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).
The five year period between Gordon's protected activity and the alleged retaliation is too temporally remote to support a retaliation claim. Although there is no bright line test for how close in time the adverse action mut be to the protected activity, courts have held far less time to be insufficient. See, e.g., Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990) (finding period of three months between the protected activity and the adverse action to be insufficient to make out a prima facie case); Cobian v. New York City, No. 99 Civ. 10533, 2000 WL 1782744, at *18 (S.D.N.Y. Dec. 6, 2000) (dismissing retaliation claim where there was four month lapse between protected activity and adverse action). Because Gordon cannot establish a causal connection between these two temporally remote events, she has not stated a prima facie case of retaliation and her retaliation claim must be dismissed.
V. CONCLUSION
While Gordon is genuinely upset by her treatment by the Board, she has offered no admissible evidence that her treatment by the Board was motivated by discriminatory animus. Because there are no genuine issues of material fact, the Board's motion for summary judgment is granted and this case is dismissed. The Clerk of the Court is directed to close this case.
SO ORDERED.