Lebowitz v. N.Y.C. Dep't of Educ.

• Decision Date: 30 November 2020
• Docket Number: 15-CV-5548 (LDH) (ST),15-CV-2890 (LDH) (ST)
• Parties: HERMAN LEBOWITZ, EKATERINA REZNIKOV, and KEITH BLACK, Plaintiffs, v. THE NEW YORK CITY DEPARTMENT OF EDUCATION, JOHN O'MAHONEY, and LAURA IZZO (individually and in their official capacities), Defendants.
• Court: U.S. District Court — Eastern District of New York

HERMAN LEBOWITZ, EKATERINA REZNIKOV, and KEITH BLACK, Plaintiffs, v. THE NEW YORK CITY DEPARTMENT OF EDUCATION, JOHN O'MAHONEY,and LAURA IZZO (individually and in their official capacities), Defendants.

15-CV-2890 (LDH) (ST)

15-CV-5548 (LDH) (ST)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 30, 2020

MEMORANDUM AND ORDER

LASHANN DEARCY HALL, United States District Judge:

Plaintiffs Herman Lebowitz, Ekaterina Reznikov, and Keith Black bring the instant actions against the New York City Department of Education ("NYC DOE"), John O'Mahoney, and Laura Izzo, asserting claims for discrimination and hostile work environment pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., New York State Human Rights Law ("NYSHRL"), and New York City Human Rights Law ("NYCHRL").¹Defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on all claims.

BACKGROUND²

I. The NYC DOE, O'Mahoney, and Izzo

Plaintiffs are teachers at Sheepshead Bay High School ("Sheepshead Bay"), a New York City public school operated by the NYC DOE. (See generally Defs.' Reply Statement of Material Facts Pursuant to Local Civ. R. 56.1 ("Defs.' Reply 56.1"), ECF No. 105-10.) Defendants O'Mahoney and Izzo joined Sheepshead Bay in 2012, assuming the role of principal and vice principal, respectively. (Id. ¶ 22.) That same year, Sheepshead Bay was designated as a failing school by the state. (Id. ¶ 9.) As a result of that designation, all staff were required to reapply to their positions for the next school year. (Id. ¶ 112.) As principal, O'Mahoney, along with Sheepshead Bay's leadership team, had to "right size" the school's budget. (Id. ¶ 10.) As part of that effort, 20 teachers were "excessed" during the 2012-2013 school year. (Id. ¶ 118.) A teacher may be excessed from the school where he or she is currently assigned when the number of teachers in a certain license area exceeds the allocated positions. (Id. ¶ 12.) The teacher with the least seniority may be removed, but the NYC DOE is obligated to place that teacher on another assignment in the school system. (Id.) Pursuant to state law, teachers with the least seniority were excessed first. (Id. ¶ 14.)

Plaintiffs maintain, and Defendants dispute, that upon O'Mahoney and Izzo's arrival at Sheepshead Bay, O'Mahoney and Izzo engaged in a pattern of conduct to discriminate againstand "rid" the school of the older teachers. According to Plaintiffs, both O'Mahoney and Izzo made derogatory statements regarding older teachers. (See, e.g., id. ¶¶ 23, 107.) For example, Plaintiffs assert that: (1) O'Mahoney stated during a January 2012 staff meeting that some teachers are receiving more money because they were older and not because they were contributing more to the school; and (2) O'Mahoney and Izzo promised the younger teachers that they were going to get rid of the older teachers so that the younger teachers would not be excessed and have to start their tenure process all over again. (Id. ¶¶ 108, 124.) Defendants dispute many of the statements attributed to them by Plaintiffs. (See, e.g., id. ¶ 107.) However, Defendants do not dispute that O'Mahoney stated "it is impossible for a tenured teacher to be let go or terminated because the 3020-a process is so rigorous that it's a 50/50 chance event at the end, even if all the documentation is there." (Id. ¶ 120.) Further, on at least one occasion, Izzo heard O'Mahoney refer to teachers as being in their "fuck you years." (Id. ¶ 110.)

During the 2013-2014 school year, the NYC DOE instituted a state-mandated teacher evaluation system called "Advance." (Id. ¶ 25.) Under Advance, the administrator conducting a teacher observation scored the teacher using a four-level rating scale known as a HEDI rating ("highly effective," "effective," "developing," and "ineffective"). (Id. ¶ 30.) During the 2013-2014 school year, of the 60 teachers eligible for a HEDI rating, 44 received ratings of "effective"—21 of those 44 teachers were over the age of 40. (Id. ¶ 98.) During the 2014-2015 school year, of the 36 teachers eligible for a HEDI rating, 29 received ratings of "effective,"—17 of those 29 teachers were over the age of 40. (Id. ¶ 99.) And, during the 2015-2016 school year, of the 24 teachers eligible for a HEDI rating, 21 received ratings of "effective,"—16 of those 21 teachers were over the age of 40. (Id. ¶ 100.) Plaintiffs maintain that during the 2013-2014 school year, 16 teachers received a rating of either "developing" or "ineffective," and of those 16teachers, 15 were over the age of 40; during the 2014-2015 school year, 10 teachers were placed on Teacher Improvement Plan ("TIP")³ and each teacher was an "older, senior teacher;" that during the 2014-2015 school year, 6 teachers received "developing" ratings and all 6 were over the age of 40; during the 2015-2016 school year, 3 teachers were placed on a TIP and all of those teachers were over the age of 40; and that during the 2015-2016 school year, 2 teachers received "developing" ratings and both were over the age of 40. (Id. ¶¶ 221-226.)

II. Lebowitz

Lebowitz is 58 years-old⁴ and was first hired by the NYC DOE in 1990. (Id. ¶ 20.) Lebowitz began teaching at Sheepshead Bay in 2000. (Id. ¶ 21.) Lebowitz was observed formally and informally under Advance at least thirteen times during the 2013-2014, 2014-2015, and 2015-2016 school years. (Id. ¶ 33.) In particular, Izzo observed Lebowitz seven times over the 2013-2014 and 2014-2015 school years, and O'Mahoney observed him four times over the 2013-2014, 2014-2015, and 2015-2016 school years. (Id. ¶¶ 37, 41.)

Lebowitz received "effective" ratings on certain objective criteria and did "relatively well" on at least some of his reports. (See id. ¶ 136.) However, on his 2013-2014 and 2014-2015 Annual Professional Performance Reviews ("APPR"), Lebowitz received a score of 67 out of 100, resulting in a "developing" rating for both school years. (Id. ¶¶ 42, 47.) Consequently, Lebowitz was twice placed on a TIP and was required to attend professional development meetings. (Id. ¶¶ 43, 45, 48.) Despite Lebowitz's placements on a TIP, his 2015-2016 APPR score rose to only 73 out of 100, earning him a "developing" rating for a third year. (Id. ¶ 49.) Lebowitz maintains that after observing and rating him on April 27, 2015, Izzo told him that sheneeded to give him a low score to make sure that his year-end rating was sufficiently low. (Defs.' Reply 56.1 ¶ 131.) According to Lebowitz, Izzo told him that she needed to give him a low score because she needed to bring down his overall APPR because she gave him too high of a rating on his two previous observation reports for the year. (Id. ¶ 132.)

Subsequently, on June 21, 2016, the NYC DOE brought charges against Lebowitz seeking his termination under section 3020-a of the New York State Education Law.⁵ (Id. ¶ 52.) In the 3020-a charges, the NYC DOE specified that Lebowitz: "failed to properly, adequately, and/or effectively plan and/or execute separate lessons" observed on eight different occasions during the 2013-2014, 2014-2015, and 2015-2016 school years; "used poor judgment and/or neglected his duties, and/or acted unprofessionally, and/or failed to follow school policy and procedure" in or about May 2015; and "failed to effectively implement supervisory directives, recommendations, counsel, instruction, and professional development" during the 2013-2014, 2014-2015, and 2015-2016 school years. (Id. ¶ 54.) Ultimately, a hearing examiner sustained thirteen of the specifications and determined that those charges constituted "just cause" forLebowitz's termination.⁶ (Id. ¶ 57.) The hearing examiner dismissed the remaining specifications.⁷ (Id. ¶ 58.)

On June 30, 2014, Lebowitz filed a verified complaint with the New York State Division of Human Rights (the "NYSDHR") alleging that the NYC DOE instituted an unlawful discriminatory practice based on age. (See id. ¶ 1.)

III. Reznikov

Reznikov is 56 years-old and was hired by the NYC DOE as a math teacher at Sheepshead Bay in or around 1999.⁸ During the 2013-2014 school year, Izzo and O'Mahoney informally observed and evaluated Reznikov on November 4, 2013; December 9, 2013; February 26, 2014; May 1, 2014; May 16, 2014; and May 27, 2014. (Id. ¶¶ 61, 63.) On June 25, 2014, Reznikov received an APPR score of 63 out of 100 for the 2013-2014 school year and an overall rating of "ineffective." (Id. ¶ 64.)

Following the 2013-2014 school year, Reznikov was notified that she was being placed in the Absent Teacher Reserve ("ATR") because Sheepshead Bay was set to close, and she did not have the requisite seniority to remain. (Id. ¶ 66.) Prior to her departure from Sheepshead Bay, Reznikov was subject to at least one disciplinary action based on the amount of time she took during one of her lunch breaks. (Id. ¶ 161.) On November 10, 2014, Reznikov filed a charge of discrimination with the EEOC alleging age discrimination, retaliation, and a patternand practice of prejudice and animosity toward teachers over the age of 40 at Sheepshead Bay. (See id. ¶ 3.)

During the 2014-2015 school year, Reznikov was assigned to teach math at Franklin Delano Roosevelt High School ("Roosevelt"). (Id. ¶ 67.) She received a pay increase. (Id. ¶ 70.) While at Roosevelt, Reznikov received an APPR rating of 93 out of 100 and an overall rating of "highly effective." (Id. ¶ 174.) Reznikov remained in the ATR pool for the first part of the 2015-2016 school year but worked at the student suspension center for the remainder of that year. (Id. ¶ 68.) As of April 26, 2017, Reznikov has taught math at James Madison High School. (Id. ¶ 69.)

IV. Black

Black is 47 years-old⁹ and was hired by the NYC DOE to teach at Sheepshead Bay in 1999. (Id. ¶ 72.) He received "satisfactory" ratings from 1999-2010. (Id. ¶ 181.) Izzo observed Black informally on October 22, 2013, and December 9, 2013. (Id. ¶ 74.) On March 14, 2014, O'Mahoney observed Black and...