Wein v. N.Y.C. Dep't of Educ.
| Decision Date | 19 August 2020 |
| Docket Number | 18 Civ. 11141 (PAE) |
| Parties | ROY WEIN, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Roy Wein, a tenured teacher employed by the New York City Department of Education ("DOE"), here sues the DOE for employment discrimination and retaliation in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"); the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"); and the Rehabilitation Act of 1971, 29 U.S.C. § 701 et seq. Wein alleges that he received a number of negative evaluations, and faced disciplinary proceedings and reassignments, because of his age and disability, and that the DOE retaliated against him by similar means for complaining about this treatment to the New York State Department of Human Rights ("SDHR").
The DOE now moves on multiple grounds for summary judgment. It argues that Wein failed to exhaust all but one of his claims before the SDHR, that the claim he did exhaust is barred by collateral estoppel, and that his claims are not supported by sufficient evidence. Wein counters that his claims are properly before the Court and that disputes of material fact preclude summary judgment. For the following reasons, the Court holds that although most of Wein's claims are not procedurally barred, none are supported by sufficient evidence. Therefore, the Court grants the DOE's motion in full.
Wein is currently employed as a tenured DOE teacher. JSF ¶ 1; Def. 56.1 ¶ 1. Between 2001 and May 23, 2018, he was assigned to P.S. 96, where he primarily taught pre-kindergarten ("pre-K") students. Def. 56.1 ¶¶ 2, 4, 11, 13. On May 23, 2018, he was reassigned to a non-student-contact position pending the resolution of an open investigation. JSF ¶ 6. Born in 1958, Wein has been over age 40 since he was first assigned to P.S. 96. See Finder Decl. Ex. M ("SDHR Complaint") at 5.
Each year, the DOE provides teachers with a year-end written evaluation in the form of an Annual Professional Performance Review ("APPR"). See, e.g., JSF ¶ 2; Def. 56.1 ¶¶ 9, 12. Teachers also receive feedback via more frequent "observation reports" and, sometimes, disciplinary letters during the school year. See, e.g., Def. 56.1 ¶¶ 7, 14. This periodic feedbackmay later form part of the basis for an APPR. See, e.g., Finder Decl. Ex. E ("2015-2016 APPR") at 3.
Relevant here, the DOE uses two different rating systems to provide this feedback to teachers. Some teachers, including those who teach at the pre-K level or who do not maintain "active status" for at least six calendar months during a school year, receive APPR ratings along a simple binary scale: "satisfactory" or "unsatisfactory." Def. 56.1 ¶ 24; see, e.g., 2015-2016 APPR at 2. Other DOE employees, including "general education teachers," are rated under a more complex scheme: the Advance "HEDI" system (the "HEDI system"). Def 56.1 ¶¶ 64-65. Under this system, teachers receive an overall, year-end rating based on the combination of their annual ratings in two subcategories: Measures of Teacher Practice ("MOTP") and Measures of Student Learning ("MOSL"). Id. Each such rating is assigned along a broader scale, ranging from "highly effective" to "effective," "developing," and, at the nadir, "ineffective." Id.; see Finder Decl., Ex. I ("2016-2017 Advance Guide") at 3.
In general, the interim or periodic observation reports Wein received used the same rating system that would be used for him at the end of the school year. See, e.g., Def. 56.1 ¶¶ 7, 9 (); id. ¶¶ 53, 65-66 (showing HEDI ratings both for 2017-2018 observation reports and the 2017-2018 APPR). Because Wein was a pre-K teacher before the 2016-2017 school year and, as discussed below, was not on "active status" for six months during the 2016-2017 school year, he was not eligible for the HEDI system for most of his career at P.S. 96, and was instead was rated on the "S/U" scale. See Def. 56.1 ¶¶ 25, 36; Glass Decl. Ex. 5. In 2017-2018, however, he became eligible for, and—for the first time in his career—was rated under the HEDI system. See Def. 56.1 ¶ 65.
During the 2013-2014 school year, then-Principal Betty Lugo gave Wein an overall satisfactory rating after issuing him an unsatisfactory formal observation report earlier in the year, the latter of which Wein signed while noting his protest of the rating.2 Id. ¶¶ 7, 9. During the 2014-2015 school year, when David Pretto replaced Betty Lugo as the principal of P.S. 96, Wein again received a satisfactory APPR rating. Id. ¶¶ 10-12. Wein taught pre-K both of these years. See id. ¶¶ 4, 11; JSF ¶ 15.
In the 2015-2016 school year, the quality of Wein's evaluations declined. On October 29, 2015, Wein received a disciplinary letter from Principal Pretto for "leaving [his] class supervised by a paraprofessional." Id. ¶ 14.3 Pretto issued the letter after a disciplinary conference held a week earlier, which Pretto, Assistant Principal Avionne Gumbs, and Wein attended. Id. ¶ 15. Wein then received two formal observation reports during the year—one satisfactory, one unsatisfactory. On December 1, 2015, Gumbs observed one of Wein's pre-K classes and gave Wein an unsatisfactory report, which Wein contested at the time by submitting a rebuttal statement. Id. ¶¶ 17-18. On March 2, 2016, Gumbs gave Wein a satisfactoryobservation report, but did so "with reservations." Pl. 56.1 ¶ 19; 2015-2016 APPR at 13-14. And on March 17, 2016, Pretto issued Wein another disciplinary letter, this time for allegedly telling a parent to remove her son from Wein's class on the ground that "it would not be a satisfactory experience with her son in the class," and that Wein did not want to receive "another unsatisfactory rating on a lesson." 2015-2016 APPR at 12; see Def. 56.1 ¶ 21. Again, Pretto issued this letter after he had held a disciplinary conference with Assistant Principal James Konstantinakos and Wein. Def. 56.1 ¶ 22.
Ultimately, Wein received an overall unsatisfactory APPR rating for the 2015-2016 school year, which he did not appeal. Id. ¶¶ 26-28; JSF ¶ 2. In support of the rating, the APPR cited (1) the December 1, 2015, observation report; (2) the October 29, 2015, disciplinary letter; and (3) the March 17, 2016, disciplinary letter. 2015-2016 APPR at 3.
For the 2016-2017 school year, Pretto reassigned Wein from teaching pre-K to a "science cluster" position, where classes of students from various grade levels circulated through his classroom, even though Wein had expressed a preference for teaching pre-K. Def. 56.1 ¶ 30; Pl. 56.1 ¶¶ 87-89. Wein claims that he received insufficient resources to support his teaching in this new position, which he had never held before. Pl. 56.1 ¶ 89. He also alleges that Pretto had previously moved three other older teachers—Lenora Carter, Jean Waugh, and Sharon Hodge—to this position before ultimately "taking steps to remove them from the school." Pl. 56.1 ¶¶ 87, 88, 110. In support, he primarily relies on his own deposition testimony. Id.
Because Wein was no longer teaching pre-K, he became eligible to be evaluated under the HEDI system, and he elected to receive six informal observation reports over the course of the year, rated on a scale from highly effective to ineffective. See Def. 56.1 ¶ 32. OnOctober 26, 2016, Pretto conducted an informal observation, rating Wein's performance across eight components as follows: ineffective in four, developing in three, and effective in one. Def. 56.1 ¶ 32. Regarding Wein's ineffective rating in the "Demonstrating knowledge of content and pedagogy" component, Pretto wrote that Wein's lesson was "designed for two grade levels below this class." Finder Decl. Ex. G ("2016-2017 APPR") at 5. Pretto also noted, in rating Wein ineffective in the "Designing coherent instruction" component, that Wein's "[l]earning activities are poorly aligned with the instructional outcomes, do not follow an organized progression, are not designed to engage students in active intellectual activity, and have unrealistic time allocations." Id. And he documented Wein's "uneven results" in terms of managing the classroom—for which Wein received a developing rating. Id. Further, Pretto stated in a field for "Additional Evaluator Notes" that Wein was "not prepared for this class of students to engage in grade-level standards-based instruction." Id. at 7. Pretto did, however, rate Wein as effective in the "Growing and developing professionally" component, stating that Wein was "reflective and collaborative in the feedback portion of this cycle." Id. at 6. Pretto also observed one of Wein's classes on November 23, 2016, and gave him a positive evaluation via email—noting, for example, that Wein had "implemented [] feedback regarding classroom management," while also providing additional constructive advice. Pl. 56.1 ¶¶ 33, 91-92. But Pretto never memorialized this feedback in an observation report of any kind. Id. ¶¶ 91-92.
Ultimately, the October 26, 2016, observation report would be Wein's only one for the 2016-2017 year. On December 22, 2016, Wein suffered a corneal ulceration, which led to an infection in the same eye. Id. ¶ 93. As a result, Wein was unable to teach from the date of his ulceration until May 10, 2017; the DOE approved his requests for "restoration of health" leave for the duration of his injury. Def. 56.1 ¶ 34. After Wein returned to P.S. 96 on May 10, 2017,only 23 days4 remained in the DOE's "observation and feedback cycle," and...
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