Weber v. City of N.Y.

Decision Date29 September 2013
Docket NumberNo. 11–CV–5083 (MKB).,11–CV–5083 (MKB).
PartiesEdward WEBER, Plaintiff, v. CITY OF NEW YORK, New York City Department of Education, Lashawn Robinson, as Principal of Brownsville Academy High School, Lana Phillips, as Assistant Principal of Brownsville Academy High School, and Katwona Warren, as Assistant Principal of Brownsville Academy High School, Defendants.
CourtU.S. District Court — Eastern District of New York

OPINION TEXT STARTS HERE

Bryan D. Glass, Glass Krakower LLP, New York, NY, for Plaintiff.

Keri Reid McNally, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM & ORDER

MARGO K. BRODIE, District Judge:

Plaintiff Edward Weber brought the above-captioned action against Defendants City of New York (the City), the New York City Department of Education (DOE), Principal Lashawn Robinson (Robinson) and Assistant Principals Lana Phillips (Phillips) and Katwona Warren (Warren) of Brownsville Academy High School (“Brownsville Academy”), alleging claims of age discrimination, religious discrimination and retaliation in violation of the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). Plaintiff also alleges equal protection claims in violation of the Fourteenth Amendment of the United States Constitution pursuant to 42 U.S.C. § 1983 and in violation of the New York State Constitution. Defendants moved for summary judgment on all claims. The Court heard oral argument on July 26, 2013, and, at oral argument, dismissed Plaintiff's age discrimination claims pursuant to the ADEA, NYSHRL and NYCHRL as to all Defendants, and equal protection claims in violation of the Fourteenth Amendment and the New York State Constitution as to the City. For the reasons set forth below, the Court grants Defendants' motion for summary judgment as to all other claims.

I. Background
a. The Parties' Employment at Brownsville Academy

Plaintiff, a high school teacher, has been employed by DOE since 2001. (Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1.) 1 Plaintiff began working as a chemistry teacher at Brownsville Academy in Brownsville, Brooklyn, in September 2005. (Def. 56.1 ¶ 3; Pl. 56.1 ¶ 3.) Brownsville Academy is a transfer high school that serves students who are over-age and under-credited. (Def. 56.1 ¶ 5; Pl. 56.1 ¶ 5.) Joanne Nabors, who was Principal of Brownsville Academy at the time, hired Plaintiff to teach chemistry. (Def. 56.1 ¶ 4; Pl. 56.1 ¶ 4.) Robinson began working at Brownsville Academy in September 2005, at approximately the same time as Plaintiff. (Def. 56.1 ¶ 11.) Robinson was the Assistant Principal at Brownsville Academy during the 20052006 and 20062007 school years, (Def. 56.1 ¶ 10; Pl. 56.1 ¶ 10), spent the 20072008 school year at another school while participating in the New York City Leadership Academy, (Def. 56.1 ¶ 19; Pl. 56.1 ¶ 19), and was hired as principal of Brownsville Academy beginning in the 20082009 school year, replacing Nabors, (Def. 56.1 ¶ 31). Assistant principals Phillips and Warren were hired by Nabors during the 20072008 school year. (Def. 56.1 ¶ 20; Pl. 56.1 ¶ 20.)

b. Plaintiff's Religious Accommodation Requests

Plaintiff identifies himself as “an observant Hasidic ultraorthodox Jew” and was 56 years old at the time he commenced this action. (Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2.) Brownsville Academy made a number of accommodations of Plaintiff's religious practice. Throughout Plaintiff's employment at Brownsville Academy, Plaintiff was excused from school for religious observances several times, including six absences in the 20072008 school year, five absences in the 20082009 school year, two absences in the 20092010 school year, and five in September and October 2010 during the Fall 2010 semester. (Def. 56.1 ¶ 199 (citing McNally Decl. Ex. III).) Plaintiff acknowledges that Brownsville Academy has never prohibited him from taking a day off for religious observance of a Jewish holiday on which he was not permitted to work according to Jewish law. (Weber Day 1 Tr. 130:15–19.)

Plaintiff alleges that during his employment at Brownsville Academy, Defendants “did not accommodate his request for time off for at least one religious day to bake matzahs for Passover in 2010.” 2 (Pl. Opp'n 9.) Plaintiff admits that Jewish law did not require him to refrain from working on the day in question or to take off for religious observance. (Weber Day 1 Tr. at 131:13–17.) Plaintiff also alleges that on one occasion the school secretary “called his home on a Sukkot holiday in 2010.” (Pl. Opp'n 9; Weber Day 1 Tr. 125:1–126:25.) According to Plaintiff, he had advised “the attendance teacher” that he would be taking the day off, but it is unclear that Brownsville Academy had a record of any notice that Plaintiff would be absent from school that day. ( Id. at 126:24–25.) The school secretary left a message stating, We have to know what's going on,” because they did not have a record of Plaintiff's advance notice that he needed to take the day off. ( Id. at 126:6, 21–23.) Plaintiff also alleges that he was denied kosher food at school meetings. (Pl. Opp'n 10.) Defendants assert that Plaintiff received reimbursements for kosher meals that he purchased for professional development days, and Robinson approved reimbursement for two meals on at least one occasion. (Def. 56.1 ¶ 201 (citing McNally Decl. Ex. JJJ).) Plaintiff claims that during a parent-teacher meeting he was told that he would be reimbursed for purchasing kosher food, but was refused reimbursement. (Weber Day 1 Tr. 176:21–25.)

c. Religious Remarks

Plaintiff admits that during his employment at Brownsville Academy, he never heard any of his co-workers or supervisors use any negative religion-related or derogatory terms about his religion. (Def. 56.1 ¶ 211, 213 (citing Weber Day 1 Tr. 183:1–184:5).) Plaintiff alleges, however, Guidance Counselor Kevin Rank joked that things were [k]osher because he blessed it” and although Plaintiff knew Rank was joking when he made these remarks about things being “kosher,” Plaintiff asserts that “it is not a funny joke after the 100th time.” (Weber Day 1 Tr. 147:11–25.) Plaintiff admits that he never complained to Rank and never told the administration about Rank's comments. (Oral Arg. Tr. 55:2–56:1.)

d. Plaintiff's Performance Evaluations

Plaintiff was regularly observed and evaluated by his superiors. ( See, e.g., McNally Decl. Exs. R, S, V, AA, KK, LL, QQ, SS, UU, XX, BBB.) Plaintiff's superiors prepared performance evaluations following their observations of Plaintiff's class-room performance, as well as year-end performance evaluations. ( See, e.g., McNally Decl. Exs. R, S, V, AA, KK, LL, QQ, SS, UU, XX, BBB.) Plaintiff's performance evaluations demonstrate that he was subject to increasing criticism during his tenure at Brownsville Academy. ( See, e.g., McNally Decl. Exs. R, S, V, KK, LL, QQ, SS, UU, XX.)

Plaintiff received a satisfactory rating on his year-end performance evaluations for the four consecutive school years between 2005 and 2009. (Def. 56.1 ¶¶ 13, 18, 24, 33; Pl. 56.1 ¶¶ 13, 18, 24, 33.) During this time, however, Plaintiff's teaching performance was subject to criticism. ( See Def. 56.1 ¶¶ 14–17, 25–27 (citing McNally Decl. Exs. F, G, H, L).3) For example, Plaintiff was criticized for failing to actively engage his students, (McNally Decl. Ex. G), failing to address the fact that half of his students arrived late to class, (McNally Decl. Ex. H), excessive talking during class discussions, ( id.), allowing a student to watch a sitcom on the computer during class, (McNally Decl. Ex. I), and failing to execute the objectives of his lesson plans, ( id.).

Plaintiff received his first unsatisfactory performance evaluation during the 20092010 school year, in February 2010. ( Id. ¶¶ 37–41 (citing McNally Decl. Ex. Q).) Plaintiff was criticized for, among other things, having a vague lesson objective resulting in a failure to achieve a well-planned and executed lesson, allowing students to spend more than a half-hour on an assignment that should have taken no more than ten minutes to complete, failing to differentiate between different levels of students, and failing to display the work of the students in the classroom. (McNally Decl. Ex. Q.) Plaintiff claims that “in February of 2010, they just started going after me.” (Weber Day 1 Tr. 68: 1–6; see also Def. 56.1 ¶ 42 (citing Weber Day 1 Tr. 67:18–68:6).)

Plaintiff received another satisfactory rating during the 20092010 school year followed by additional unsatisfactory ratings for the remainder of the 20092010 and 20102011 school years for issues such as failing to address the objective for the day, failing to assess the students' understanding at the end of lessons, accepting incorrect answers as correct, failing to wrap-up lessons, allowing students to arrive late without comment, moving on when students were clearly confused, and failing to provide students with clear directions. 4 ( See McNally Decl. Exs. R, S, V, KK, LL, QQ, SS, UU, XX.) Plaintiff was commended on his strengths, including his use of technology, and was provided detailed recommendations for improvement. ( See, e.g., McNally Decl. Exs. V, QQ, SS, UU, XX.) Prior to and after many of the observation sessions, Phillips, Robinson and/or Warren met with Plaintiff. ( See, e.g., McNally Decl. Exs. V, KK, LL, QQ, SS, XX.) However, Plaintiff was not always willing to accept input from others. For example, prior to a lesson in April 2010, Plaintiff repeatedly refused opportunities to meet with Phillips, who had offered to work with him on his lesson plan. (McNally Dec. Ex. S.)

In a June 2010 performance evaluation, Robinson noted that “Phillips [had] worked diligently with [Plaintiff] ... to no avail.” (McNally Decl. Ex. V.) Robinson informed Plaintiff that his colleagues would...

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