Gordon v. NYC Bd. Education, Docket No. 99-9503

• Decision Date: 01 August 2000
• Docket Number: Docket No. 99-9503
• Citation: 232 F.3d 111
• Parties: (2nd Cir. 2000) ELIZABETH GORDON, Plaintiff-Appellant, v. NEW YORK CITY BOARD OF EDUCATION, Defendant-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 111

232 F.3d 111 (2nd Cir. 2000)

ELIZABETH GORDON, Plaintiff-Appellant, v. NEW YORK CITY BOARD OF EDUCATION, Defendant-Appellee.

Docket No. 99-9503

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: October 2, 2000

Decided: November 03, 2000

Plaintiff appeals from an order of the United States District Court for the Southern District of New York (Motley, J.), dismissing plaintiff's complaint following a jury verdict in favor of the defendant.

VACATED AND REMANDED.

MICHAEL G. O'NEILL, New York, NY, for Plaintiff-Appellant.

ALAN BECKOFF,(Michael D. Hess, CorporationCounsel of the City of New YorkStephen J. McGrath, of counsel), for Defendant-Appellee.

Before: McLAUGHLIN, CALABRESI, AND SOTOMAYOR, Circuit Judges.

McLAUGHLIN, Circuit Judge:

BACKGROUND

Elizabeth Gordon, a black woman, began to work for the New York City Board of Education(the "Board") in 1977.She served as a resource room teacher.In 1993, after her application for an administrative position was denied, she commenced a Title VII action against the Board alleging that she was discriminated against because of her race.See42 U.S.C. § 2000e et seq.

Before filing her lawsuit, Gordon had received favorable year-end performance evaluations, with all but two classroom observations being rated satisfactory.After she filed suit, however, every classroom observation and all but one year-end evaluation given to Gordon was unsatisfactory.

At a 1996 bench trial, Gordon's discrimination action was dismissed.SeeGordon v. Board of Education for the City of New York, No. 96-9011(S.D.N.Y.July 10, 1996).She was then removed from her teaching position and assigned to the district office of her community school district.She continues to be assigned to the district office, although her supervisors have never given her any job duties.The Board also filed a series of incompetence charges against Gordon, in an effort to strip her of her teacher's certification.All those charges were eventually dismissed.

In response to the Board's actions, Gordon filed the present lawsuit pursuant to 42 U.S.C. § 2000e-3 in the United States District Court for the Southern District of New York(Motley, J.).She alleged that the Board has retaliated against her for filing her discrimination action.

A plaintiff claiming retaliation must prove: (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) adverse employment action; and (4) a causal connection between plaintiff's protected activity and the adverse employment action.SeeQuinn v. Green Tree Credit Corp., 159 F.3d 759, 769(2d Cir.1998).

At trial before a jury, the Board conceded the existence of Gordon's protected activity and an adverse employment action.As to the knowledge requirement, it admitted that because the Board was the defendant in the previous discrimination action, the Board Superintendent of Gordon's School, Anthony Alvarado, and the Board as a legal entity were aware of Gordon's protected activity.

Nevertheless, specific agents of the Board uniformly testified that they never heard about Gordon's earlier discrimination lawsuit.For example, Pamela Maurice, the District Administrator for Special Education, who had observed Gordon in 1995 and who had given her unsatisfactory ratings, stated that she was unaware that Gordon had filed a discrimination action.Similarly, George Miller, a Special Assistant to Superintendent Alvarado, had also given Gordon unsatisfactory classroom observation ratings.He testified that he was asked by Superintendent Alvarado to observe Gordon in 1996, and did not recall being aware that she had filed a lawsuit against the Board.Finally, Principal Fay Pallen testified that she was unaware of the lawsuit when she gave Gordon an unsatisfactory 1995 year-end rating, and that, although she learned of the prior lawsuit two months before giving Gordon an unsatisfactory 1996 year-end rating, that lawsuit had no bearing on her decision.She also denied being told by Superintendent Alvarado to get rid of Gordon.

Even though there was consistent testimony from Maurice, Miller and Pallen that they personally knew nothing about the earlier lawsuit, there was, again, no dispute that the Board as a legal entity knew about Gordon's protected activity - if for no other reason than that Superintendent Alvarado knew all about it.In this belief, Gordon submitted the following proposed jury charge to the district court:

Likewise, I instruct you that the second element of plaintiff's case has been met.There is no dispute that the Board of Education was aware of plaintiff's charge of discrimination and lawsuit.Accordingly, you need not deliberate on this element.

At the first charging conference, the district court told the parties that Gordon's proposed jury instructions were "essentially correct" and that "the only real dispute is the fourth element; that is, [whether] there was a causal connection . . . between the adverse employment [] actions taken by the defendant against the plaintiff" and plaintiff's protected activity.At the close of evidence, the district court reiterated that the causal connection issue was "the only question that's going to the jury."

The following morning, before the summations, the district court told the parties that it was also going to "give the jury an interrogatory relating to the defendant's defense" that the Board took the adverse employment actions "not because they were retaliating against her, but because she was, in fact, an unsatisfactory teacher."The district court also advised that it would instruct the jury that, "if they find that the defendant's reasons were not pretextual . . . they would have to return a verdict for the defendant."Lastly, the district court noted that:

The only defendant in the case, as we know, is the Board of Education.We had questions about whether the board's knowledge was imputable to its agents and we agreed that as to that, the jury could find that the agents had knowledge of the protected activity from circumstantial evidence.

Armed with this information, Gordon's counsel then made the following statement to the jury during closing arguments:

We don't need to know whether Superintendent Alvarado explicitly told Fay Pallen or other members of his administrative staff to run my client out of that school because of her lawsuit.We don't have to know, and I don't have to prove whether Superintendent Alvarado even told Fay Pallen about the lawsuit.We don't have to know the details about how this retaliation took place.All we have to show are circumstances from which you can conclude more likely than not that it was retaliatory.

And that's the fallacy of their argument when they keep putting these people on the stand to say we didn't know about the lawsuit . . . .They didn't need to know about the lawsuit if Alvarado just told them, get rid of Gordon.He didn't have to tell them why.I don't have to prove that those people knew that they were supposed to run my client out of that school because of the lawsuit, and they're not going to ask Alvarado why (emphasis added).

Notwithstanding its prior statements and the closing argument made by Gordon's counsel, the district court then distributed a copy of its proposed jury instructions to counsel after closing arguments which included the following charge:

To satisfy the [knowledge requirement], the plaintiff must show that the Board of Education's agents, who gave plaintiff unfavorable reviews and annual evaluations and removed her from the classroom . . . knew . . . that plaintiff had filed that lawsuit at the time when they took these adverse employment actions against her (emphasis added).

Gordon immediately objected to this charge on the grounds that: (1) it was an incorrect statement of the law; and (2) Gordon had been prejudiced because her counsel had already argued the exact opposite proposition to the jury in reliance on the district court's earlier statements.The district court noted Gordon's objection for the record, but chose to read the instruction to the jury.

With respect to the element of causation, the district court instructed the jury that:

[T]he plaintiff must prove that defendant's actions were motivated by a desire to retaliate against plaintiff for bringing a discrimination claim or filing a lawsuit, and that the reasons offered by the defendants for its actions were pretextual and were not the real reasons for its adverse employment discrimination.(emphasis added).

Gordon also objected to this charge as an inaccurate statement of the law.

It also gave a jury instruction detailing the mechanics of the McDonnell Douglas burden-shifting analysis, seeMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05(1973)(delineating a framework for trial judges to employ when deciding if Title VII claims should go to a jury).The district court told the jury that, once the Board proffered its non-retaliatory reasons for its actions against Gordon, "the burden shifted back to plaintiff to prove that . . . defendant's reasons are pretextual, that is, they are not the real or true reasons for the agent's actions and that retaliation is a true reason."Gordon objected to this burden-shifting instruction as unnecessary and confusing to the jury.

The district court then issued a jury questionnaire containing the following interrogatories:

(1) whether plaintiff proved that the Board's agents who took unfavorable actions against plaintiff after she filed her first lawsuit knew about the suit at the time of their actions; (2) whether plaintiff proved that there was a causal connection between the various adverse actions and her protected activity (the lawsuit); (3) whether it was satisfied that the Board's agents had legitimate non-retaliatory reasons for their adverse actions; and (4) if the first two questions were answered "Yes" and the third...