Brenner v. City of New York Department of Education

132 F. Supp. 3d 407, 2015 U.S. Dist. LEXIS 124509, 2015 WL 5475628
CourtDistrict Court, E.D. New York
DecidedSeptember 17, 2015
DocketNo. 14 Civ. 3559(BMC)
StatusPublished
Cited by13 cases

This text of 132 F. Supp. 3d 407 (Brenner v. City of New York Department of Education) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brenner v. City of New York Department of Education, 132 F. Supp. 3d 407, 2015 U.S. Dist. LEXIS 124509, 2015 WL 5475628 (E.D.N.Y. 2015).

Opinion

MEMORANDUM DECISION & ORDER

COGAN, District Judge.

Plaintiff brought this action under Title VII, the ADEA, and 42 U.S.C. § 1983 alleging discriminatory termination on the basis of age, religion, and race, as well as a hostile work environment. Before me is defendants’ motion for summary judgment. For the reasons that follow, defendants’ motion is granted.

BACKGROUND

The following facts are viewed in the light most favorable to plaintiff and are undisputed. Plaintiff was, until his termination, a tenured teacher employed by the Board of Education of the City School District of the City of New York, sued herein as the Department of Education (“BOE”). At the time of his termination in 2012, at the recommendation of a neutral arbitrator following 10 days of hearings, plaintiff had accumulated a history of unsatisfactory performance reviews dating at least to 2009. The arbitrator found, in essence, that plaintiffs cordial demeanor and rapport with his students was not enough to excuse his lack of effort (or ability) to master the technical aspects of his profession as a special education teacher or to incorporate the recommendations of those who sought to help him improve. As the arbitrator stated, plaintiffs case required him to “bifurcate the personality and likability of the Respondent and his body of work as a New York City teacher.” The arbitrator summed up defendants’ voluminous documentation of plaintiffs unsatisfactory performance in the classroom and defendants’ own remedial efforts by saying:

[I]n all my years connected to education on multiple levels I have never seen the plethora, cornucopia and extent of resources dedicated to one individual in an effort to resuscitate their teaching approach and pedagogy. It is indeed unfortunate that there was not the Return on Investment (ROI) that I am confident many people were hoping would be the outcome for this respondent.

Plaintiff began teaching in 1999 and began working at P.S. 15 in Queens in the year 2000. During his first five years at P.S. 15, plaintiff received satisfactory evaluations in all years except the 2002-03 school year. At the end of that school year, then-Principal Andrew Newman gave plaintiff an unsatisfactory year-end rating, but told plaintiff that if he had “grieve[d]” the rating, he “would have overturned it.”

Starting in 2005-06, plaintiff became an individual education plan (“IEP”) teacher, meaning that his job was to assist classroom teachers with their “at risk” students. Plaintiff remained in that position in 2006-07, the year that defendant Antonio K’Tori (“K’Tori”) took over as Principal of P.S. 15. That year, K’Tori gave [413]*413plaintiff a satisfactory year-end rating but describes his initial impression of plaintiff as someone “struggling with organization, management, planning and focus.” The following year (2007-08), plaintiffs application to renew his IEP position was denied, and he took an “integrated co-teaching” («ICT”) position, in which he would work alongside a general education teacher in a fourth grade classroom. K’Tori conducted a formal observation of plaintiffs classroom in March 2008, noting shortcomings in (among other things) classroom organization, lesson preparation and “differentiation” among students with different learning needs. K’Tori did not rate plaintiffs performance for the 200708 school year as either satisfactory or unsatisfactory.

During the 2008-09 school year, at K’Tori’s suggestion, plaintiff began to participate in the Peer Intervention Program (“PIP”), a mentorship program internal to the school. K’Tori issued plaintiff at least two unsatisfactory formal observation reports during that year, and an unsatisfactory year-end rating.

For the 2009-10 school year, plaintiff was assigned to an ICT kindergarten classroom. He was given a full-time co-teacher, but she suffered an injury and was replaced by a series of substitutes over the course of the year. Plaintiff never wrote a formal complaint about the impact of this lack of continuity, but mentioned it to K’Tori, who (as plaintiff recalls) did not give him a “definitive answer.” K’Tori issued plaintiff three more unsatisfactory formal observation reports and, at the end of that year, issued plaintiff an unsatisfactory year-end rating. That review specifically warned plaintiff that due to his poor classroom performance and lesson preparation he “must significantly improve [his] skills for the 2010-11 year in order to continue employment with the BOE.”

In 2010-11, plaintiff was a second grade ICT teacher. He received three unsatisfactory formal .observation reports from Assistant Principal Earl Braithwaite. Braithwaite commended plaintiff for his rapport with students, but noted shortcomings in plaintiffs pedagogy such as (once again) a lack of differentiation and that “[t]he timing and pacing of the lesson and activities were unacceptable.” K’Tori issued plaintiff an unsatisfactory year-end rating.

In the Fall of 2011, plaintiff participated in the “PIP + ” mentorship program, which involved 10 sessions (including six classroom observations) with an independent consultant, Suzanne Rockman. At the conclusion of the program, Rockman informed K’Tori by letter that plaintiff “showed no progress in the area of differentiated instruction” which she found “particularly egregious in a class with special educations students.” She opined that “[t]he individual learning needs of these students were not addressed” by plaintiffs teaching. She also noted that plaintiff did not “plan for or provide opportunities for interaction among students” and that his lessons “did not have a developmental sequence of activities aligned with an objective.” She concluded that “[e]ffeetive teaching and learning was not observed” and that plaintiff was “unsatisfactory in his instructional job performance.”

In addition, parents of plaintiffs students wrote to K’Tori to complain about plaintiffs failure to control his classroom. (Plaintiff asserts that he asked his students to have their parents write the letters in order to shed light on a perceived lack of support from K’Tori.)

At the end of the 2011-12 school year, K’Tori informed plaintiff that pursuant to N.Y. Ed. Law § 3020-a, the BOE charged plaintiff with fifteen specifications of “unprofessional conduct while a teacher ... [414]*414during the 2009-10, 2010-11, 2011-12 school years.” After ten days of hearings in front of a neutral arbitrator, the arbitrator found that plaintiff had failed to, among other things, “properly, adequately, and effectively” plan and/or execute lessons, perform and/or maintain records of student assessments, follow curriculum, maintain his classroom environment, and assume the role of lead teacher; and that plaintiff had failed to accept and/or heed advice, counsel, instruction, remedial professional development and/or recommendations. The arbitrator found plaintiff “guilty of all the Specifications referenced” in the charges, and that the appropriate penalty was termination.

On September 5, 2013, plaintiff filed a verified complaint with the New York State Division of Human Rights (“SDHR”) charging the BOE with an unlawful discriminatory practice relating to employment. In a Determination and Order After Investigation, the SDHR found “No Probable Cause” to believe that the BOE had engaged in an unlawful discriminatory practice. The SDHR Determination stated that:

The record ...

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132 F. Supp. 3d 407, 2015 U.S. Dist. LEXIS 124509, 2015 WL 5475628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brenner-v-city-of-new-york-department-of-education-nyed-2015.