Pleener v. New York City Board of Education

311 F. App'x 479
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 24, 2009
DocketNo. 07-4898-cv
StatusPublished

This text of 311 F. App'x 479 (Pleener v. New York City Board of Education) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pleener v. New York City Board of Education, 311 F. App'x 479 (2d Cir. 2009).

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court, entered on October 10, 2007, is AFFIRMED.

Plaintiff Barbara Pleener appeals from an award of summary judgment in favor of defendant on her claim that defendant discriminated against her in employment based on race in violation of Title VII and various state and local laws.1 Specifically, Pleener complains that she was removed as principal of Beach Channel High School because she is Caucasian and, thereafter, constructively discharged from employment with the New York City Board of Education. We review a grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party. See Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir.2008). While we will not uphold an award of summary judgment in favor of the defendant if the evidence is sufficient to permit a reasonable jury to find for the plaintiff, we are mindful that the plaintiff must point to more than a “scintilla” of evidence in support of her position to de[481]*481feat summary judgment. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In applying these principles to this appeal, we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.

1. Plaintiffs Removal as Principal

Pleener submits that the district court erred when, in employing McDonnell Douglas analysis to her claim of discriminatory removal as principal, it concluded that Pleener had failed to adduce evidence that defendant’s proffered nondiseriminatory reason for her removal was pretextual and that the real reason for her removal was racial bias. We disagree. While Pleener disputes the merits of the Board’s view of (1) the deteriorating state of affairs at Beach Channel High School, (2) Pleener’s role in that deterioration, and (3) her inability to provide the leadership necessary to restore stability, she failed to adduce any evidence that the Board did not sincerely hold that view or that otherwise would permit a factfinder to conclude that the Board’s real reason for removing her was her race. See Graham v. Long Island R.R., 230 F.3d 34, 44 (2d Cir.2000) (holding that even if plaintiff could demonstrate that failed drug test proffered by defendant as ground for dismissal was in error, that showing would not demonstrate that reliance on test was pretext for discrimination); Brewer v. Quaker State Oil Refining Corp., 12 F.3d 326, 331 (3d Cir.1995) (“To discredit the employer’s proffered reason, the plaintiff cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether a discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” (internal quotation marks omitted)); cf. Myers v. United Bhd. of Carpenters & Joiners of Am., 684 F.2d 225, 227 (2d Cir.1982) (“Even if the Brotherhood’s factfinding was mistaken, that circumstance would not establish discrimination in the absence of facts indicating that some identifiable group within the Local was erroneously being branded as ‘contracting members’ as a pretext for accomplishing a discriminatory denial of their right to vote.”).

Pleener further faults the district court for not recognizing that defendant’s discriminatory intent was evident from the fact that she was told that she would be replaced as principal by an African-American. Here again, we are not persuaded. While such evidence may support an inference of discrimination at the p'rima facie step of McDonnell Douglas analysis, “what matters in the end is not how the employer treated other employees” who do not belong to a plaintiffs race, “but how the employer would have treated the plaintiff had she been of a different” race. Brown v. Henderson, 267 F.3d 246, 253-54 (2d Cir.2001) (emphasis omitted). Once defendant proffered a non-discriminatory reason for removing Pleener from her position as principal, more than evidence that she was replaced by a person of another race was necessary for her to carry her “ ‘ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against’” her on the basis of race, Holcomb v. Iona Coll, 521 F.3d 130, 138 (2d Cir.2008) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). See Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir.1996) (“That one’s replacement is of another race, sex, or age may help to raise an inference of discrimination, but it is neither a sufficient nor a necessary condition.”).

Pleener also argues that racial bias infected the Board’s removal decision because the parents and students at Beach [482]*482Channel High School did not want a Caucasian principal. We agree that federal law does not permit an employer to discriminate based on race to accommodate the actual or perceived invidious biases of its clientele. See Knight v. Nassait County Civil Serv. Comm’n, 649 F.2d 157, 162 (2d Cir.1981) (noting that “Congress specifically excluded race from the list of permissible bona fide occupational qualifications”); 29 C.F.R. § 1604.2(a)(l)(iii) (providing that bona fide occupational qualification exception does not generally apply to “refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers”).

However, the record does not support a reasonable jury finding of such impermissible conduct by defendant. Rather, the record shows that Pleener’s loss of control at Beach Channel High School followed the Board’s removal of a popular African-American assistant principal for insubordination to Pleener. Some parents and students apparently thought that the assistant principal’s race played a role in his removal. Moreover, they voiced concern about Pleener’s assignment to Beach Channel High School in light of her own disciplinary record, which they viewed as more serious than the infraction that had prompted the assistant principal’s removal. Indeed, when Pleener and Board Superintendent Cashin walked out of a hostile community meeting called to discuss the assistant principal’s removal, the record shows that the reason was not racial tension but a speaker’s attempt to raise the issue of Pleener’s prior disciplinary record. Finally, in extensive testimony about the views expressed by protesting parents and students, Pleener was unable unequivocally to attribute to any community member an expression of hostility to her on the basis of her race.

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Related

Texas Department of Community Affairs v. Burdine
450 U.S. 248 (Supreme Court, 1981)
Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
Cathy Carson v. Bethlehem Steel Corporation
82 F.3d 157 (Seventh Circuit, 1996)
Christopher Graham v. Long Island Rail Road
230 F.3d 34 (Second Circuit, 2000)
United States v. Rudolph Weaver
267 F.3d 231 (Third Circuit, 2001)
Havey v. Homebound Mortgage, Inc.
547 F.3d 158 (Second Circuit, 2008)
Mathirampuzha v. Potter
548 F.3d 70 (Second Circuit, 2008)
Holcomb v. Iona College
521 F.3d 130 (Second Circuit, 2008)

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Bluebook (online)
311 F. App'x 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pleener-v-new-york-city-board-of-education-ca2-2009.