Tolbert v. Smith, No. 14-1012 (2d Cir. 2015)
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Plaintiff appealed from the district court's grant of summary judgment dismissing his claims of discrimination and hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.; the New York State Human Rights Law, 26 N.Y. Exec. Law 296 et seq.; and 42 U.S.C. 1981, as well as his defamation claims. The court affirmed the judgment of the district court except with respect to the discrimination claims, as to which there are genuine disputes as to material facts that preclude summary judgment based on plaintiff's prima facie case of discrimination. Plaintiff submitted evidence that the principal of the school changed the person who conducted plaintiff's year-end evaluation without providing notice to plaintiff, that the principal relied on the 2008-2009 evaluations at issue in isolation, and that the unsatisfactory performance reviews were aberrational. These irregularities, when combined with the principal's alleged remarks, are sufficient to establish a prima facie case of discrimination.
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14-1012 Tolbert v. Smith UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________ August Term, 2014 Argued: January 7, 2015 Decided: June 24, 2015 Docket No. 14-1012-cv ____________________________________ RICKEY L. TOLBERT, Plaintiff-Appellant, —v.— RICHARD SMITH AND ROCHESTER CITY SCHOOL DISTRICT, Defendants-Appellees. ___________________________________ Before: LYNCH AND CARNEY, Circuit Judges, and KOELTL, District Judge.* 1 The plaintiff, Rickey Tolbert, appeals from the judgment of 2 the United States District Court for the Western District of New 3 York (Siragusa, J.) dismissing his complaint. 4 court granted summary judgment dismissing the plaintiff’s claims 5 for defamation, discrimination, and hostile work environment, in 6 violation of federal and state anti-discrimination laws and New 7 York State common law. The district * The Honorable John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by designation. 1 We affirm the judgment of the district court in all 2 respects, except that we vacate the judgment dismissing the 3 discrimination claims and remand as to those claims for further 4 proceedings. 5 ______________ 6 7 8 9 10 11 12 13 14 DAVID ROTHENBERG, Greiger and Rothenberg, LLP, for PlaintiffAppellant Rickey Tolbert. 15 16 17 John G. Koeltl, District Judge: 18 former teacher at John Marshall High School (“John Marshall”) in 19 the Rochester City School District (the “School District”). 20 appeals from a judgment of the United States District Court for 21 the Western District of New York (Siragusa, J.). 22 court granted summary judgment dismissing the plaintiff’s claims 23 of discrimination and hostile work environment under Title VII 24 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 25 (“Title VII”); the New York State Human Rights Law (“NYSHRL”), 26 N.Y. Exec. Law § 296 et seq.; and 42 U.S.C. § 1981. 27 district court also dismissed the plaintiff’s defamation claim. 28 29 MICHAEL E. DAVIS (Edwin Lopez-Soto, General Counsel, on the brief), Rochester City School District, Law Department, for Defendants-Appellees Richard Smith and Rochester City School District. ______________ The plaintiff, Rickey Tolbert, is an African-American The district The On appeal, Mr. Tolbert contends that he identified sufficient facts to establish a prima facie case of racial 2 He 1 discrimination, to show a hostile work environment, and to 2 support a claim for defamation. 3 below, we affirm the judgment of the district court except with 4 respect to the discrimination claims, as to which there are 5 genuine disputes as to material facts that preclude summary 6 judgment based on Mr. Tolbert’s prima facie case of 7 discrimination. For the reasons explained 8 I. 9 A. 10 Mr. Tolbert was a culinary arts teacher at John Marshall 11 from 2006 to 2009. 12 who taught three culinary arts classes a day. 13 He was a non-tenured, probationary teacher, Because he was a probationary teacher, Mr. Tolbert’s 14 classes were observed by John Marshall administrators. 15 reviewing administrator would then write a “Formal Teacher 16 Observation.” 17 space for written comments and also a “Summary of Performance” 18 section that asks the evaluator to check one of five boxes. 19 available boxes are “Distinguished,” “Proficient,” “Meets 20 Professional Standards,” “Below Professional Standards,” and 21 “Unsatisfactory.” The The Formal Teacher Observation Form includes a 3 The 1 At the end of each school year, Mr. Tolbert also received 2 an annual evaluation by a John Marshall administrator.1 3 Annual Evaluation Form includes eighteen categories. 4 evaluator is asked to check one of five boxes for each category— 5 which are the same as those on the Formal Teacher Observation 6 Form—and provide written comments. 7 provide an “Overall Summary Rating,” again by checking one of 8 five boxes. 9 The The The evaluator must also During his second year teaching, Mr. Tolbert consistently 10 received marks of “Proficient” or “Meets Professional Standards” 11 on his evaluations. 12 John Marshall, conducted Mr. Tolbert’s Formal Teacher 13 Observations and his annual evaluation for the 2007–2008 school 14 year. Laurel Avery-DeToy, an administrator at Mr. Tolbert has no complaints about these reviews. 15 B. 16 Before the start of the 2008–2009 school year, defendant 17 Richard Smith was hired to replace Joseph Munno as the principal 18 of John Marshall. 19 employment situation started to sour. 20 According to Mr. Tolbert, this is when his Mr. Tolbert alleges that he did not receive a budget to 21 purchase supplies for his classes. 22 grew. The size of his classes also In the two previous years, he had around sixteen to 1 The evaluations from the 2006-2007 school year were not included in the record. 4 1 eighteen students per class. 2 classes had at least twenty-eight students—despite a collective 3 bargaining agreement provision limiting at least one of his 4 classes to twenty-four students. 5 the John Marshall administrators eventually reduced the number 6 of students in his classes. 7 In the fall of 2008, each of his After Mr. Tolbert complained, Mr. Tolbert also claims that many Individualized Education 8 Plan students were placed in his classes, and he was not given 9 the assistance of a paraprofessional. The defendants insist 10 that due to budget cuts, a number of paraprofessional positions 11 were eliminated. 12 Administrator determined that Mr. Tolbert would not be assigned 13 a paraprofessional for the 2008–2009 school year. 14 defendants also note that twenty-three percent of the John 15 Marshall students had Individualized Education Plans. 16 As a result, the Special Education The Mr. Tolbert also experienced some problems with the 17 cleanliness and the maintenance of the kitchen in his classroom 18 (known as the “Jurist Room”). 19 County Department of Health and the New York State Department of 20 Health identified various health code violations. 21 Principal Smith closed the kitchen. 22 cause of these violations. 23 janitorial staff did not clean the kitchen regularly, and the In the fall of 2008, the Monroe As a result, The parties dispute the Mr. Tolbert insists that the 5 1 defendants contend that Mr. Tolbert and his students were—in 2 part—at fault. 3 But these problems were not new. In December 2007, Mr. 4 Tolbert complained to school officials that the custodial staff 5 was not cleaning the kitchen properly. 6 New York State Department of Health identified a number of 7 health code violations in the kitchen. 8 9 And in March 2008, the C. Mr. Tolbert also alleges that Principal Smith made racist 10 remarks. 11 for a homecoming breakfast. 12 served, Mr. Tolbert alleges that Principal Smith asked him: “Do 13 you only know how to cook black, or can you cook American too?” 14 JA 332. 15 In the fall of 2008, Mr. Tolbert volunteered to cook When discussing what food would be In October 2008, a student in Mr. Tolbert’s class alleges 16 that Principal Smith asked her if she was learning anything from 17 Mr. Tolbert. 18 reopening the kitchen, Principal Smith asked the same student 19 “how [she] expected to learn if all [she] was learning to cook 20 was black food.” 21 Principal Smith allegedly said “that what he meant was American 22 food.” 23 that in January or February of 2009, Principal Smith told her Id. In January 2009, during a conversation about JA 450. When asked to define “black food,” And another one of Mr. Tolbert’s students alleges 6 1 that “black kids can’t learn in a cooking class because all they 2 want to do is eat.” 3 JA 453. At some point, Principal Smith and Mr. Tolbert both 4 inspected Mr. Tolbert’s classroom. 5 showed Principal Smith areas in the classroom that had not been 6 cleaned by the janitorial staff, and Principal Smith remarked 7 that “the kids we get to this school are not from much better 8 than this.” 9 Marshall student body, Mr. Tolbert interpreted this comment as a JA 335. Mr. Tolbert claims that he Because of the demographics of the John 10 reference to the students’ race. 11 2008–2009 school year, Barbara Postell, then a counselor at John 12 Marshall, asserts that Principal Smith—when referring to John 13 Marshall students—stated that “my friends, they are not like 14 us.” 15 the students’ race. 16 statements. 17 JA 457. And in the beginning of the Ms. Postell interpreted this as a comment about Principal Smith denies making any of these Mr. Tolbert also claims that Principal Smith told him and 18 his students that the Monroe County Department of Health had 19 closed the kitchen in Mr. Tolbert’s classroom. 20 according to Mr. Tolbert, was incorrect; Principal Smith had 21 closed the kitchen. 7 That statement, 1 2 D. Mr. Tolbert received three Formal Teacher Evaluations 3 during the 2008–2009 school year. 4 DeToy observed one of Mr. Tolbert’s classes and submitted a 5 lengthy and negative evaluation. 6 “Unsatisfactory,” the lowest of the five options. 7 In November 2008, Ms. Avery- She rated his performance as In December 2008, Anthony Bianchi observed one of Mr. 8 Tolbert’s classes and concluded that Mr. Tolbert had met 9 professional standards. In March 2009, Mr. Tolbert requested 10 that someone other than Ms. Avery-DeToy conduct his next 11 evaluation, and Principal Smith assigned the review to Jason 12 Muhammad. 13 concluded that Mr. Tolbert had met professional standards. 14 After observing an April 6, 2009, class, Mr. Muhammad In March 2009, the “Administrative Team” at John Marshall 15 sent a memorandum to the teaching staff. 16 year-end evaluations and identified which administrator would 17 review each teacher. 18 conduct Mr. Tolbert’s annual evaluation. 19 later reassigned the evaluation to Ms. Avery-DeToy, the only 20 administrator who had previously rated Mr. Tolbert’s performance 21 as “Unsatisfactory.” 22 notice of the reassignment. 23 24 The memo discussed According to the memo, Mr. Muhammad would But Principal Smith Mr. Tolbert claims that he received no Mr. Tolbert’s annual evaluation was not positive. For twelve of the eighteen categories, Ms. Avery-DeToy described Mr. 8 1 Tolbert’s teaching as “Below Professional Standards.” 2 remaining six categories, Mr. Tolbert received marks of “Meets 3 Professional Standards.” The Overall Summary Rating was “Below 4 Professional Standards.” The comment sections noted that Mr. 5 Tolbert had shown some growth, but expressed concern about his 6 teaching strategy, professional development, and lack of 7 involvement with his students’ parents. 8 DeToy recommended denying Mr. Tolbert tenure. 9 For the In the end, Ms. Avery- Principal Smith agreed, but he recommended that Mr. Tolbert 10 receive a fourth year of probation. 11 that he made this decision “[b]ased on Tolbert’s observations 12 throughout 2008–2009, his final evaluation and my own 13 observations of his performance.” 14 Ms. Avery-DeToy informed Mr. Tolbert of the decision in April 15 2009. 16 Principal Smith declared JA 45. Principal Smith and Mr. Tolbert refused the fourth-year-probation offer. 17 Accordingly, a recommendation against granting Mr. Tolbert 18 tenure was forwarded to the Rochester City School Board. 19 Although the School Board did not approve the denial of tenure, 20 Superintendent Jean-Claude Brizard made a “final decision” to 21 deny tenure. 22 was based on Principal Smith’s recommendation and the reviews of 23 Mr. Tolbert from “the last year and part before that.” Superintendent Brizard testified that his decision 9 JA 260. 1 By a letter dated August 31, 2009, the School District 2 informed Mr. Tolbert that he would not receive tenure. 3 School District again offered Mr. Tolbert a fourth year of 4 probation, which he refused. 5 The E. 6 Mr. Tolbert filed his original complaint in November 2009. 7 After an amendment, the complaint alleged a claim for racial 8 discrimination arising under 42 U.S.C. § 1981 and a claim for 9 defamation against Principal Smith. Against the School 10 District, the plaintiff alleged that he was subjected to 11 discrimination and a hostile work environment because of his 12 race, in violation of Title VII and the NYSHRL.2 13 The defendants filed a motion for summary judgment on all 14 claims, which the district court granted. 15 dismissed the discrimination claims because it found that Mr. 16 Tolbert had failed to establish a prima facie case of 17 discrimination because he had not suffered an adverse employment 18 action and had failed to raise an inference of discrimination. 2 The district court The defendants suggest, without elaboration, that the plaintiff did not timely exhaust his administrative remedies before the Equal Employment Opportunity Commission with respect to his Title VII claims. The defendants do not explain this argument in their brief. The district court noted that an argument of non-exhaustion had been raised but never decided it. Therefore, we do not reach the issue of non-exhaustion and any appropriate argument of non-exhaustion can be addressed on remand. 10 1 It dismissed the hostile work environment claims because it 2 concluded that the alleged hostility was not a result of Mr. 3 Tolbert’s race and was not sufficiently severe. 4 district court dismissed the defamation claim because the 5 complaint failed to allege when or to whom the defamatory 6 statements were made. 7 Mr. Tolbert timely appealed. 8 9 And the II. We have jurisdiction pursuant to 28 U.S.C. § 1291, and the 10 district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 11 and 1367. 12 We review a grant of summary judgment de novo, Velazco v. 13 Columbus Citizens Found., 778 F.3d 409, 410 (2d Cir. 2015) (per 14 curiam), and may affirm on any basis that finds support in the 15 record. 16 387 n.2 (2d Cir. 2000) (per curiam). 17 appropriate when “there is no genuine dispute as to any material 18 fact and the movant is entitled to judgment as a matter of law.” 19 Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 20 317, 322 (1986). 21 appropriate, we must resolve all ambiguities and draw all 22 reasonable inferences against the moving party. 23 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 24 (1986). Mauro v. S. New England Telecomms., Inc., 208 F.3d 384, Summary judgment is In determining whether summary judgment is 11 See Matsushita 1 This Court has “repeatedly expressed the need for caution 2 about granting summary judgment to an employer in a 3 discrimination case where, as here, the merits turn on a dispute 4 as to the employer’s intent.” 5 130, 137 (2d Cir. 2008). 6 clear that “the salutary purposes of summary judgment—avoiding 7 protracted and harassing trials—apply no less to discrimination 8 cases than to . . . other areas of litigation.” 9 Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (internal 10 Holcomb v. Iona Coll., 521 F.3d At the same time, we have also made it Weinstock v. quotation marks omitted). 11 III. 12 Mr. Tolbert alleged a racial discrimination claim against 13 Principal Smith under § 1981, and a racial discrimination claim 14 against the School District under Title VII and the NYSHRL. 15 Title VII, § 1981, and NYSHRL discrimination claims are governed 16 at the summary judgment stage by the burden-shifting analysis 17 first established in McDonnell Douglas Corp. v. Green, 411 U.S. 18 792, 802–04 (1973). 19 141, 150 (2d Cir. 2012). 20 Principal Smith and the Title VII and NYSHRL claims are against 21 the School District, the analysis is the same.3 22 against both defendants turn on Principal Smith’s conduct.4 The See Brown v. City of Syracuse, 673 F.3d Although the § 1981 claim is against 3 The claims Section 1981 provides for individual liability. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 12 1 Under the McDonnell Douglas framework, Mr. Tolbert bears 2 the burden of establishing a prima facie case of discrimination 3 by showing “(1) he belonged to a protected class; (2) he was 4 qualified for the position he held; (3) he suffered an adverse 5 employment action; and (4) that the adverse employment action 6 occurred under circumstances giving rise to an inference of 7 discriminatory intent.” 8 quotation marks omitted). 9 nor intended to be rigid, mechanized or ritualistic.” Brown, 673 F.3d at 150 (internal “The requirement is neither onerous Abdu- 10 Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 11 2001) (internal citations and quotation marks omitted). 12 There is no disagreement that as an African American, Mr. 13 Tolbert is a member of a protected class. 14 question Mr. Tolbert’s qualifications. 15 argue that Mr. Tolbert did not suffer an adverse employment Nor do the defendants The defendants, however, 2000). Title VII does not. Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010) (per curiam). The NYSHRL provides for individual liability under an aiding-and-abetting theory, see Feingold v. New York, 366 F.3d 138, 157–58 (2d Cir. 2004), but the plaintiff made no such claim against Principal Smith. 4 Although Superintendent Brizard made the ultimate tenure decision, he relied on Principal Smith’s recommendation. And “the impermissible bias of a single individual at any stage of the promoting process may taint the ultimate employment decision in violation of Title VII. This is true even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the promotion process.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 450 (2d Cir. 1999) (internal citation omitted). 13 1 action and that there is no evidence giving rise to an inference 2 of discrimination. We disagree. 3 A. 4 An employee suffers an “adverse employment action” if he 5 “endures a materially adverse change in the terms and conditions 6 of employment. 7 more disruptive than a mere inconvenience or an alteration of 8 job responsibilities.” 9 Cir. 2006) (internal citation and quotation marks omitted). An adverse employment action is one which is Joseph v. Leavitt, 465 F.3d 87, 90 (2d 10 Denying Mr. Tolbert tenure and extending his probation was an 11 adverse employment action. 12 In New York, teachers serve a three-year probationary 13 period. 14 receives tenure or is terminated. 15 districts may extend the probationary term for one year and 16 postpone the tenure decision. 17 Sch. Dist., 63 F.3d 131, 134 (2d Cir. 1995). 18 Then it is usually up or out: the teacher either But, as here, school See Borkowski v. Valley Cent. This Court has held or assumed that the denial of tenure is 19 an adverse employment action under Title VII and other 20 employment statutes. 21 Sch. Dist. No. 7, 691 F.3d 134, 147 (2d Cir. 2012) (Family 22 Medical Leave Act retaliation); Leibowitz v. Cornell Univ., 445 23 F.3d 586, 591–92 (2d Cir. 2006) (per curiam) (Title VII and the 24 Age Discrimination in Employment Act); Back v. Hastings On See, e.g., Donnelly v. Greenburgh Cent. 14 1 Hudson Union Free Sch. Dist., 365 F.3d 107, 113, 123–26 (2d Cir. 2 2004) (42 U.S.C. § 1983); Zahorik v. Cornell Univ., 729 F.2d 85, 3 93 (2d Cir. 1984) (Title VII); see also Okruhlik v. Univ. of 4 Ark., 395 F.3d 872, 879 (8th Cir. 2005) (Title VII and § 1983). 5 This makes sense. 6 because it provides long-term job security. 7 City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286 (1977) 8 (“The long-term consequences of an award of tenure are of great 9 moment both to the employee and to the employer.”).5 10 Tenure is a material condition of employment See Mt. Healthy But the defendants insist that this case is different 11 because Mr. Tolbert was offered a fourth year of probationary 12 employment. 13 employment situation would have been no worse had he accepted 14 the offer. 15 According to the defendants, Mr. Tolbert’s The defendants ignore the fact that the offer of a fourth 16 year of probation was intertwined with the denial of tenure. 17 Had the plaintiff received tenure, he could have been terminated 18 only for cause. 19 could have been terminated for any lawful reason. But had he remained a probationary teacher, he 5 N.Y. Educ. In the context of university tenure decisions, “a prima facie case that a member of a protected class is qualified for tenure is made out by a showing that some significant portion of the departmental faculty, referrants or other scholars in the particular field hold a favorable view on the question.” Zahorik, 729 F.2d at 93–94. That requirement does not apply to a prima facie case for an elementary or high school teacher. Donnelly, 691 F.3d at 151. 15 1 Law §§ 2573(1)(a), 2573(5)(a), 3020-a. 2 therefore was the denial of a material improvement in the 3 conditions of the plaintiff’s employment. 4 The denial of tenure Title VII prohibits “discriminat[ion] against any 5 individual with respect to his compensation, terms, conditions, 6 or privileges of employment,” § 2000e-2(a)(1), the NYSHRL 7 similarly prohibits employers from “discriminat[ing] against 8 such individual in compensation or in terms, conditions or 9 privileges of employment,” N.Y. Exec. Law § 296(1)(a), and 10 § 1981 provides that all “persons . . . shall have the same 11 right . . . to make and enforce contracts . . . as is enjoyed by 12 white citizens,” § 1981(a). 13 material employment benefit for a discriminatory reason violates 14 those statutes. 15 decisions are not exempt under Title VII, . . . and plaintiffs 16 seeking to show that forbidden purposes lurk in a tenure 17 decision have available methods of challenging such decisions.”) 18 Refusing to award a contract or a See, e.g., Zahorik, 729 F.2d at 93 (“Tenure Indeed, were we to accept the defendants’ interpretation, 19 then failure to promote claims—or any claims alleging the denial 20 of an employment benefit—would be non-actionable. 21 cannot be the case. 22 employment relationship may not be doled out in a discriminatory 23 fashion, even if the employer would be free under the employment And that “A benefit that is part and parcel of the 16 1 contract simply not to provide the benefit at all.” 2 King & Spalding, 467 U.S. 69, 75 (1984).6 3 Hishon v. Extending an employment relationship by one year by itself 4 may not qualify as an adverse employment action. 5 coupled with the denial of tenure, it is assuredly an adverse 6 employment action. 7 employment, a teacher can be fired at any time for any lawful 8 reason. 9 the teacher may be fired only for cause. But when During the fourth year of probationary N.Y. Educ. Law § 2573(1)(a). But if granted tenure, Id. §§ 2573(5)(a), 10 3020-a. 11 was otherwise eligible for tenure, does not become any less an 12 adverse action because the teacher is provided with another year 13 of probationary employment. 14 The denial of tenure after three years, when a teacher Of course, a school district may defer a decision on tenure 15 and obtain another year’s experience with a teacher, provided 16 that the decision is not made for an unlawful reason such as 17 racial discrimination. 18 years cannot lawfully be based on a discriminatory reason, even 19 if the teacher remains employed as a probationary teacher. But the denial of tenure after three 6 The Douglass v. Rochester City School District, 522 F. App’x 5 (2d Cir. 2013), an unpublished disposition upon which the defendants rely, is not to the contrary. In that case, the Court held that a fourth-year extension of probation did not place the plaintiff “in any worse employment position than she would have been in absent the offer.” Id. at 9. However, this Court was careful to explain that the plaintiff did not “assert a claim for discriminatory denial of tenure.” Id. at 9 n.1. Mr. Tolbert asserts that claim here. 17 1 plaintiff alleges that is precisely what occurred here, and that 2 is a sufficient allegation of an adverse action. 3 B. 4 The defendants next contend that Mr. Tolbert did not 5 identify facts giving rise to an inference of discrimination. 6 Mr. Tolbert identified racially offensive comments 7 allegedly made by Principal Smith, two of which concerned Mr. 8 Tolbert’s qualifications as a teacher. 9 Tolbert, in the fall of 2008, Principal Smith asked him: “Do you According to Mr. 10 only know how to cook black, or can you cook American too?” 11 of Mr. Tolbert’s students declared that in January 2009, 12 Principal Smith asked her “how [she] expected to learn if all 13 [she] was learning to cook was black food.” 14 student declared that in January or February of 2009, Principal 15 Smith told her that “black kids can’t learn in a cooking class 16 because all they want to do is eat.”7 7 JA 450. One Another JA 453. As the district court found, the other evidence cited by the plaintiff does not raise an inference of discrimination. Reverend Willie Harvey and Barbara Postell declared that Malik Evans told them that Principal Smith was racist, but Reverend Harvey’s and Ms. Postell’s testimony would be inadmissible hearsay if offered at trial. Finnegan v. Bd. of Educ., 30 F.3d 273, 274 (2d Cir. 1994) (per curiam) (explaining that “double hearsay” cannot “create a genuine issue to be tried”); see also Fed. R. Civ. P. 56(c)(2). Cynthia Elliott’s testimony that she “believe[d]” Principal Smith’s decision to deny tenure “was based on race” is mere speculation. JA 264; see Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999) (noting that courts must “carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that 18 1 When responding to Mr. Tolbert’s discrimination claims, the 2 defendants did not discuss any of these remarks in their briefs 3 to this Court or in their briefs before the district court. 4 district court nonetheless found that Principal Smith’s “stray 5 remarks” were “too attenuated” from the tenure decision and not 6 probative of Principal Smith’s intent. 7 09cv6579, 2014 WL 906158, at *15–16 (W.D.N.Y. Mar. 7, 2014). 8 9 The Tolbert v. Smith, No. “[T]he more remote and oblique the remarks are in relation to the employer’s adverse action, the less they prove that the 10 action was motivated by discrimination.” 11 Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007), abrogated on 12 other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 13 177–78 (2009). 14 remarks become “too attenuated” to be significant to a 15 determination of discriminatory intent. 16 Tomassi v. Insignia But there is no bright-line rule for when In April 2009, Principal Smith and Ms. Avery-DeToy told Mr. 17 Tolbert that he would not receive tenure, and the two “black 18 food” remarks concerning Mr. Tolbert were made in the fall of gives rise to mere speculation and conjecture”). And Allen Williams’s testimony that Superintendent Brizard said that there was a problem with Principal Smith is inadmissible hearsay and does not raise an inference of discrimination. Ms. Postell thought that she was also the victim of discrimination and filed a complaint with the Employment Equal Opportunity Commission. But the complaint was found to be without merit, and the district court here fairly concluded that it had “little probative value.” Tolbert v. Smith, No. 09cv6579, 2014 WL 906158, at *7 (W.D.N.Y. Mar. 7, 2014). 19 1 2008 and in January 2009. 2 single school year, and one occurred within three months of 3 Principal Smith’s decision to recommend that Mr. Tolbert be 4 denied tenure. 5 2009 attributed to Principal Smith also reflected racial bias. 6 None of the remarks was so attenuated that it should be ignored. 7 The remarks all occurred during a A third alleged remark in January or February Moreover, the remarks were made by the de facto 8 decisionmaker, the remarks clearly suggest racial bias, and two 9 of the comments were about Tolbert’s qualifications as a 10 teacher. 11 kids can’t learn in a cooking class because all they want to do 12 is eat,” JA 453, could be viewed as evidence of a discriminatory 13 intent on Principal Smith’s part in dismantling John Marshall’s 14 culinary arts program. 15 Tolbert was the only teacher at John Marshall, was directly 16 relevant to the decision whether to grant him tenure. 17 v. Wyeth Pharm., Inc., 616 F.3d 134, 149–50 (2d Cir. 2010) 18 (noting factors that district courts consider when determining 19 if a remark is probative of discriminatory intent).8 20 district court appeared to find that because the formal 21 evaluations did not refer to Mr. Tolbert’s race, there was no And Principal Smith’s comment to a student that “black The fate of that program, for which Mr. 8 See Henry But the The two other allegedly racist remarks by Principal Smith— that the students “are not from much better than this” and that “they are not like us”—are less probative. 20 1 “nexus” between the decision to deny tenure and Principal 2 Smith’s remarks. 3 Tolbert, 2014 WL 906158, at *16. Employers are unlikely to leave a “smoking gun” admitting a 4 discriminatory motive. 5 Corp., 43 F.3d 29, 37 (2d Cir. 1994). 6 required to make a prima facie case of discrimination. 7 v. Olsten Corp., 110 F.3d 210, 215 (2d Cir. 1997). 8 plaintiff need not show that Principal Smith declared that the 9 tenure decision was tied to the plaintiff’s race. See, e.g., Chambers v. TRM Copy Ctrs. And such evidence is not Luciano The Statements 10 showing an employer’s racial bias, which Mr. Tolbert identified, 11 are sufficient to support a prima facie case of discrimination. 12 See id. 13 Moreover, there is a factual dispute as to whether 14 Principal Smith followed regular procedures when he evaluated 15 Mr. Tolbert for tenure. 16 such as a failure to collect all available evidence, can raise a 17 question as to the good faith of the process where the departure 18 may reasonably affect the decision.” 19 “Departures from procedural regularity, Zahorik, 729 F.2d at 93. The plaintiff submitted evidence that Principal Smith 20 changed the person who conducted Mr. Tolbert’s year-end 21 evaluation without providing notice to Mr. Tolbert,9 that 9 While the defendants assert that Mr. Tolbert’s evaluation was reassigned because Mr. Muhammad was having difficulty completing his evaluations on time, it is for a jury to decide whether that explanation is credible and rebuts any inference of 21 1 Principal Smith relied on the 2008–2009 evaluations in 2 isolation, and that the unsatisfactory performance reviews by 3 Ms. Avery-DeToy were aberrational. 4 combined with Principal Smith’s alleged remarks, are sufficient 5 to establish a prima facie case of discrimination. 6 365 F.3d at 124–25 (finding sexist remarks and procedural 7 irregularities sufficient to rebut a nondiscriminatory reason 8 for denying tenure). 9 These irregularities, when See Back, There was no argument in the district court or before us 10 that summary judgment should be granted at the second or third 11 stages of the McDonnell Douglas analysis. 12 conclude that Mr. Tolbert met his initial burden of establishing 13 a prima facie case of discrimination, we vacate and remand with 14 respect to the § 1981, Title VII, and NYSHRL discrimination 15 claims. Therefore, because we discrimination that could be drawn from the alleged procedural irregularity. 22 1 IV. 2 We next consider whether the district court erred by 3 granting summary judgment dismissing the hostile work 4 environment and defamation claims. 5 A. 6 We conclude that it did not. Mr. Tolbert asserted hostile work environment claims 7 against the School District under Title VII and the NYSHRL.10 8 Hostile work environment claims under Title VII and the NYSHRL 9 are governed by the same standard. Summa v. Hofstra Univ., 708 10 F.3d 115, 123–24 (2d Cir. 2013). 11 case of hostile work environment, the plaintiff must show that 12 the discriminatory harassment was “sufficiently severe or 13 pervasive to alter the conditions of the victim’s employment and 14 create an abusive working environment,” and “that a specific 15 basis exists for imputing” the objectionable conduct to the 16 employer. 17 Cir. 1997) (internal quotation marks omitted). 18 that the plaintiff also must show that the hostile conduct 19 occurred because of a protected characteristic. 20 Costello, 294 F.3d 365, 374 (2d Cir. 2002). To establish a prima facie Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d 10 It is axiomatic Alfano v. A hostile work environment claim may be brought against an individual pursuant to § 1981. Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 151 n.6 (2d Cir. 2014). But the complaint asserts no such claim. 23 1 Mr. Tolbert failed to identify sufficient material facts 2 showing that his work environment was objectively hostile and 3 abusive. 4 ‘episodic; they must be sufficiently continuous and concerted in 5 order to be deemed pervasive.’ 6 serious, do not meet the threshold of severity or 7 pervasiveness.” 8 Perry, 115 F.3d at 149). 9 “As a general rule, incidents must be more than Isolated acts, unless very Id. at 374 (internal citation omitted) (quoting Mr. Tolbert alleges that Principal Smith made two offensive 10 statements in his presence. 11 “black food”—necessarily concerns race. 12 the students were “not from much better than this”—is ambiguous. 13 And whatever the meaning of the remarks, they do not qualify as 14 “a steady barrage of opprobrious racial comments” that altered 15 the conditions of Mr. Tolbert’s employment. 16 Avon, 118 F.3d 106, 110 (2d Cir. 1997) (internal quotation marks 17 omitted). 18 Only one—the remark regarding The other remark—that Schwapp v. Town of Nor do the other alleged instances of hostility support a 19 hostile work environment claim. 20 did not receive a budget. 21 lump-sum budget to any teacher; he instead requested that each 22 teacher submit a request for supplies. 23 24 Mr. Tolbert complains that he But Principal Smith did not give a Mr. Tolbert contends that he lost the assistance of a paraprofessional. But the Special Education Administrator made 24 1 that decision because of budget cuts. 2 that the Special Education Administrator’s decision was a 3 product of racial animus. 4 And there is no evidence More students were placed in Mr. Tolbert’s classes for the 5 2008–2009 school year than in the previous two years. 6 Mr. Tolbert protested, the class sizes were reduced. 7 is no evidence that Principal Smith—or anyone with a 8 discriminatory motive—initially assigned an excessive number of 9 students to Mr. Tolbert’s classes. 10 But after And there Finally, Mr. Tolbert alleges that the janitorial staff did 11 not properly clean his classroom. 12 with the janitorial staff predated Principal Smith’s arrival, 13 and there is no evidence that the janitorial staff acted out of 14 animus or at the direction of Principal Smith. 15 16 17 18 But Mr. Tolbert’s problems Accordingly, we affirm the dismissal of the hostile work environment claims. B. Mr. Tolbert next contends that the district court erred in 19 dismissing the defamation claim against Principal Smith. 20 amended complaint identifies four defamatory statements, but Mr. 21 Tolbert discusses one on appeal. 22 Smith told Mr. Tolbert’s students that the Monroe County 23 Department of Health had closed the kitchen in Mr. Tolbert’s 25 The He alleges that Principal 1 classroom. 2 incorrect; Principal Smith closed the kitchen. 3 That statement, according to Mr. Tolbert, was A slanderous statement, by definition, must be false. “But 4 in defamation law, as in life, determinations of fact and 5 fiction are not zero-sum. 6 completely true, but can be substantially true, as when the 7 overall ‘gist or substance of the challenged statement’ is 8 true.” 9 Printers II, Inc. v. Prof’ls Publ’g, Inc., 784 F.2d 141, 146–47 In New York, a statement need not be Chau v. Lewis, 771 F.3d 118, 129 (2d Cir. 2014) (quoting 10 (2d Cir. 1986)); see also Kraus v. Brandstetter, 562 N.Y.S.2d 11 127, 130 (App. Div. 1990). 12 Principal Smith’s statement was substantially true. In the 13 fall of 2008, Principal Smith closed the kitchen after the 14 Monroe County Department of Health had identified a number of 15 sanitation problems. 16 Inspection Report Observation stated that in order for the 17 kitchen to reopen, it needed to be reinspected. 18 Principal Smith had “closed” the kitchen, the Monroe County 19 Department of Health prohibited its reopening without an 20 inspection. 21 “closed.” 22 23 A Monroe County Department of Health Although “Prevented reopening” is substantially similar to Accordingly, we affirm the dismissal of Mr. Tolbert’s defamation claim. 26 1 CONCLUSION 2 We have considered all of the arguments of the parties. 3 the extent not specifically addressed above, they are either 4 moot or without merit. 5 AFFIRM the judgment of the district court dismissing all claims, 6 except that we VACATE the judgment of the district court 7 dismissing the discrimination claims. 8 further proceedings consistent with this opinion. To For the reasons explained above, we 27 The case is REMANDED for
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