Berrie v. Bd. of Educ. of the Port Chester-Rye Union Free Sch. Dist.

GREGORY TYRONE BERRIE, Plaintiff, v. BOARD OF EDUCATION OF THE PORT CHESTER-RYE UNION FREE SCHOOL DISTRICT,ASSISTANT SUPERINTENDENT FRANK FANELLI, and PRINCIPAL PATRICK SWIFT,in their individual and professional capacities, Defendants.

No. 14-CV-6416 (CS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

May 31, 2017

OPINION AND ORDER

Appearances:

Howard Schragin

Ann L. Moscow

Sapir Schragin LLP

White Plains, New York

Counsel for Plaintiff

Maurizio Savoiardo

Miranda Sambursky Slone Sklarin Verveniotis LLP

Mineola, New York

Counsel for Defendants

Seibel, J.

Before the Court is Defendants' Motion for Summary Judgment. (Doc. 68.) For the following reasons, the Motion is GRANTED.

I. BACKGROUND

The following facts are undisputed unless otherwise noted.¹

Plaintiff first worked at the Port Chester-Rye Union Free School District (the "District") from 1990-1992 as a Teaching Assistant, having been recruited by Defendant Frank Fanelli. (56.1 Stmt. & Resp. ¶¶ 7-8.) In 2002, again having been recruited by Fanelli, Plaintiff began working as a physical education teacher, (id. ¶ 9), receiving tenure in 2006, (see id. ¶¶ 218, 221). Plaintiff at some point was transferred to the Port Chester Middle School, where he currently works, (see AC ¶ 17),² and where Defendant Patrick Swift is principal, (Savoiardo Decl. Ex. K, at 9).³ Swift expressed his displeasure at not having a choice in the matter, writing in an email that he was "not happy" about Plaintiff's transfer and did not want to take the "tired, hungry, and oppressed" because the Middle School had "com[e] too far to become a dumping ground." (Schragin Decl. Ex. 31.)⁴

A. Alleged Discriminatory Incidents

1. Iantorno Email

On February 2, 2013, Jeannie Iantorno, Plaintiff's colleague, forwarded an email, (Savoiardo Decl. Ex. GG (the "Iantorno Email")), with the subject line "New Species of Man," containing a photograph of a minority teenager, who Plaintiff and others believed to be AfricanAmerican, (56.1 Stmt. & Resp. ¶ 13; Savoiardo Decl. Ex. P, at 78), with his pants worn well below the waist, accompanied by two drawings - one of a man from behind with a long back, as if his waist was where the teen in the photograph wore his pants, and the other of a skeleton with the same long back, (56.1 Stmt. & Resp. ¶ 13). Below the photograph and drawings, the email reads:

They are referred to as homo slackass-erectus created by a natural genetic downward evolution through constant spineless posturing, and spasmatic upper limb gestures, which new research has shown to cause shorter legs and an inability to ambulate other than in an awkward shuffling gait. The "drag-crotch" shape also seems to effect [sic] brain function. Expect no eye contact or verbal communication. This species receives benefits and full government care. Unfortunately most are highly fertile.

(Id. ¶ 14; Iantorno Email.) Iantorno forwarded the email to the Middle School faculty stating, "I think we have a few of these roaming the halls!!" (56.1 Stmt. & Resp. ¶ 17; Iantorno Email.) A union representative informed Iantorno the following Monday that her email was offensive to some colleagues, (56.1 Stmt. & Resp. ¶ 18), and Iantorno sent an apology email shortly thereafter to the Middle School faculty, asserting that she thought it would be humorous "since we are constantly telling our boys to pick up their pants" and that her "intention was not to stereotype or put down anyone," (id. ¶¶ 19-20; Savoiardo Decl. Ex. HH). Swift met with Iantorno to discuss the email and its offensiveness, and commemorated their meeting with a February 5, 2013 letter that recounted their discussion, reprimanded her and informed her that there would be an inquiry to determine whether further action was required. (See 56.1 Stmt. & Resp. ¶¶ 23-24; Savoiardo Decl. Ex. JJ.) Subsequently, Iantorno sent a follow-up letter apologizing to the District's staff, stating that she meant the email to be funny and that her "own teenage son wears his pants in this fashion." (Savoiardo Decl. Ex. LL.)

On February 5, 2013, Swift offered to meet with Plaintiff to discuss the email, and Plaintiff responded, "I'm good! Laughed about all of this with friends and moved on. Thanks for your concern." (56.1 Stmt. & Resp. ¶¶ 25-26.) Plaintiff testified that he had already complained to his union representative and Fanelli about the email. (Id. ¶ 27; Savoiardo Decl. Ex. H, at 290-91.) Two days later, Plaintiff sent an email to Swift and Fanelli saying that he was "still deeply offended," but that it might be time "to shut this thing down," as "the more [Plaintiff] hear[d] about [Iantorno] . . . [i]t doesn't seem[] like she deserve[s] this [and m]aybe it's truly just a mistake?" (56.1 Stmt. & Resp. ¶ 28; Savoiardo Decl. Ex. KK.)

2. Swift Hockey Incident

On April 4, 2013, Swift entered Plaintiff's physical education class, saw students playing hockey and joined in. (See 56.1 Stmt. & Resp. ¶¶ 35-36.) From the opposite side of the gym from Plaintiff, Swift hit a plastic ball across the gym and struck Plaintiff in the head (the "Hockey Incident"). (Id. ¶ 36(g).) Swift said this was an accident, (Savoiardo Decl. Ex. GGG, at DEF000433), but Plaintiff maintains that Swift intentionally hit Plaintiff because of his race and in retaliation for opposing the Iantorno Email, (56.1 Stmt. & Resp. ¶ 36). After being hit, Plaintiff left the gym and went into the locker room, where Swift followed and apologized. (Id. ¶ 40.) Plaintiff stayed home for one week following the incident due to emotional distress, (id. ¶ 47), and Fanelli testified that Plaintiff told him over the phone that he did not want to go to work because he was so angry that he feared he would punch Swift, (id. ¶ 48). On April 15, 2013, after Plaintiff returned to work, he attended a meeting with Swift, Assistant Principal Byron Womack, Fanelli, Superintendent Edward Kliszus and Donna Coffin, Plaintiff's union representative, to discuss Plaintiff's concerns. (Id. ¶ 54; Savoiardo Decl. Ex. EEE, at DEF000485.) Plaintiff submitted a formal complaint against Swift via email to Fanelli threedays later for "physical assault, bullying and harassment." (56.1 Stmt. & Resp. ¶ 59; Savoiardo Decl. Ex. ZZ.)

3. Fanelli New York Times Article

On May 4, 2013, Fanelli sent Plaintiff a New York Times column by respected writer Ta-Nehisi Coates entitled "Beyond the Code of the Streets," about an instance in which the author and three friends who were also African-American professionals "refused to give in to anger when confronted by individuals who treated the group with disrespect." (56.1 Stmt. & Resp. ¶¶ 61-63; Savoiardo Decl. Ex. BBB (the "New York Times Article").) Plaintiff responded to Fanelli via email stating that he was offended because he is "not an angry black man." (56.1 Stmt. & Resp. ¶ 65; Savoiardo Decl. Ex. CCC.) Fanelli apologized; he thought the article was about the "dilemma that African American men go through when they become professionals." (56.1 Stmt. & Resp. ¶ 66.) Fanelli had distributed the same article to other administrators and teachers within the District, as well as the president of the local chapter of the NAACP. (Id. ¶¶ 67-68.)

4. Other Allegations

In addition to the Iantorno Email, the Hockey Incident and the New York Times Article, Plaintiff makes several other allegations of discrimination, including:

• on an unknown date, another teacher, Drew Ciccoria, referred to African Americans as "Alabama porch monkey[s]" and said that "Black people can't cut it in sports," (Savoiardo Decl. Ex. H, at 240-41);

• on an unknown date, Melissa Piccola, a physical education teacher at the Middle School, (Savoiardo Decl. Ex. H, at 94), may have said to Plaintiff that he "talk[s] too black," (56.1 Stmt. & Resp. ¶ 192; Savoiardo Decl. Ex. S, at 44);

• in 2006-08, Ciccoria acted inappropriately toward African-American students, making statements such as "Blacks can't cut it in football," and ridiculing a student on the basketball team, (Savoiardo Decl. Ex. GGG, at DEF000427);

• in 2010, a female teacher sexually harassed Plaintiff by sitting on his lap, (id. ¶¶ 231);• sometime between 2010 and 2012, Swift asked Plaintiff, "Can't you guys spell?" after Plaintiff had misspelled Swift's name in an email, (id. ¶¶ 234-35);⁵

• at the April 15, 2013 meeting regarding the Hockey Incident, Swift reported that someone else asked him, "When are we going to get rid of Plaintiff and how fast are we going to get rid of him?" (Id. ¶¶ 238-39; Savoiardo Decl. Ex. VV.) Swift referred to those people as "stupid," (Savoiardo Decl. Exs. UU, VV);

• in November 2013, Ciccoria was disruptive during an anti-discrimination seminar, (56.1 Stmt. & Resp. ¶¶ 227-28); another teacher testified that the comments made at this seminar were gender-related, not race-related, (id. ¶ 229);

• in 2014 or 2015, Swift told Piccola to document any complaints she had about Plaintiff in writing, and texted her in April 2015, stating he "need[ed] [her] letter again. With your name typed then signed" because it "[h]as to be official. District is fed up with him," (56.1 Stmt. & Resp. ¶ 239(d)-(e)); Piccola first complained about difficulty in working with Plaintiff in March 2013, (see Savoiardo Decl. Ex. VVV, at DEF20971), and filed written complaints on December 1, 2 and 10 in 2014, and April 10, August 28 and October 22, 2015, (56.1 Stmt. & Resp. ¶ 239(e); Schragin Decl. Ex. 32);

• in or around September 2014, Piccola complained that she did not want "another Hernandez" in her class, (AC ¶ 51);

• in October 2014, an unknown person urinated in Plaintiff's coffee pot, (56.1 Stmt. & Resp. ¶¶ 280-81);

• Plaintiff was not permitted to take certain professional development courses; the courses were first come/first served and were available through an online program called "My Learning Plan" and sometimes through email, (id. ¶¶ 243-45); in 2014, Plaintiff was given permission to take eleven of his thirteen requested courses, but was denied the opportunity to take a course entitled

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