Dash v. Bd. of Educ. of the City Sch. Dist. of N.Y.

238 F.Supp.3d 375

Andre DASH, Plaintiff,

v.The BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF NEW YORK, Defendant.

15–CV–2013

United States District Court, E.D. New York.

Signed March 2, 2017

Filed March 3, 2017

Stewart Lee Karlin, Daniel Edward Dugan, Natalia Mercedes Kapitonova, The Law Offices of Stewart Lee Karlin, P.C., New York, NY, for Plaintiff.

Mario G. Frangiose, Shira M. Blank, New York City Law Department, New York, NY, for Defendant.

ORDER

Jack B. Weinstein, Senior United States District Judge:

Table of Contents

I. Introduction... 380

II. Facts... 381

III. Procedural History... 383

IV. Law... 383

A. Standard of Review... 383

B. Statute of Limitations... 384

C. Doctrine of Waiver and Release... 385

D. Hostile Work Environment...385

V. Application of Law to Facts...387

A. Statute Of Limitations...387

B. Doctrine of Waiver and Release... 389

C. Hostile Work Environment... 390

VI. Trial... 394

VII. Conclusion... 394

I. Introduction

A female principal ("Principal") allegedly created a licentious aura in a public school, resulting in harm to plaintiff, then an assistant principal. He is an African American male formerly employed by the Board of Education of the City School District of New York ("BOE"). He brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). See Corrected Verified Compl. with Jury Demand, Feb. 18, 2016, ECF No. 20 ("Am. Compl"). He alleges that that he was subjected to disparate treatment; suffered a hostile, sexually charged work environment based upon his race and gender; and was punished in retaliation for complaining. Id.

Defendant moves for summary judgment on all claims. The motion is granted in part. Only the charge of a hostile work environment will be tried. A jury can evaluate the evidence in the context of current community standards of appropriate working relationships. See Hamling v. United States , 418 U.S. 87, 104–05, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) ("A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law." (internal citations omitted)); Roberts v. United Parcel Serv. , Inc. , 115 F.Supp.3d 344, 370 (E.D.N.Y. 2015) (explaining that a "jury is generally best suited to evaluate" discrimination charges in light of current community standards).

II. Facts

Plaintiff began working for the BOE in 1988. Am. Compl. at ¶ 8. He was employed as a travel trainer and as a teacher. Id. In 2008, he was an assistant principal at PS 370K (the "school"). He was the only African–American male administrator at the school. Id. at ¶ 9.

Between 2008 and 2013, plaintiff was allegedly subjected to an intentional and continuous pattern of discrimination based on his race and gender that created a hostile work environment. Id. at ¶ 10. Specifically, plaintiff alleges that the Principal, to whom he directly reported, subjected him to discriminatory treatment and created a prurient hostile work environment. Id. He makes the following allegations:

• In September 2009, when he was in the Principal's office for a meeting, she described to him "her sexual activities for the weekend with two different men." Id. at ¶ 10.10.

• Throughout 2010, 2011, and 2012, she discussed with him her sexual encounters with men in explicit details. Id. at ¶ 10.13.

• She discussed the book "Fifty Shades of Grey," a sexually charged novel, with her colleagues in his presence. Id. at ¶ 10.14.

• During several administrative meetings at which he was present, she passed around pictures stored on her cell phone that depicted male genitalia. Id.

• On several occasions, she walked near him with her pants open. Id.

• On one occasion, she "rubb[ed] her vagina," and when he inquired "if she was ok[,] [she] stated, ‘Uh huh. I have my period.’ " Id.

• She lifted her shirt to reveal to him tattoos and a piercing. Id.

• In January 2011, he sought to report an unseemly incident to the Principal. Id. at ¶ 10.15. A paraprofessional, using profanities and obscene gestures, had engaged in an argument with a male student. Id. When plaintiff entered the classroom to intervene, the paraprofessional "placed her legs two steps behind her to simulate a sexual act and stated ‘Mr. Dash is probably fucking you’ " to the student. Id. When he reported this incident to the Principal, she refused to take action. Id.

• In May 2012, he reported another inappropriate action to the Principal. Id. at ¶¶ 10.16–10.17. A school employee was acting improperly towards several students; he threatened one, and when the student responded, the employee replied, "What you gonna do? [C]all your daddy [plaintiff]? ... Bitches call men Daddy who aren't their real dad[ ], he is probably fucking you." The employee repeated this statement to another student in September 2012, again insinuating that plaintiff was engaging in sexual relations with his students. Id. Plaintiff attempted to report this behavior to the Regional Safety Administrator and to the Principal, but she refused to take action and, instead, berated him for informing the Regional Safety Administrator. Id.

• In April 2013, he was engaging the Principal in a conversation about bullying and fighting among the students and how he planned to handle the behavior. The Principal responded, "A man is only good for a hard Dick!" Id. at ¶ 10.19.

• The Principal refused to give him paperwork necessary to receive a payment for his extra services, and as a result, he was not compensated. Id. at ¶ 10.22.

• The Principal consistently treated him differently than other assistant principals and other members of the staff. She never addressed him by his first name, but called other teachers by their first names. Id. at ¶¶ 10.17, 10.29. She often refused to speak to him or engage with him. Id. at ¶ ¶ 10.15–10.21. She assigned support staff to the other two assistant principals, leaving him as the only assistant principal without such assistance. Id. at ¶ 10.23. Unlike plaintiff, the other assistant principals were allowed to leave school grounds without having their time deducted. Id. at ¶ 10.26. Plaintiff was frequently excluded from meetings or professional development opportunities within the school, and was required to work longer hours than the other assistant principals. Id. at ¶¶ 10.30–10.34, 10.40. The other two assistant principals were non-African American females. Id. at ¶¶ 10.34–10.36.

Defendant argues that it did not have any concerns about plaintiff's employment until May 10, 2013, when plaintiff was informed that a student had brought a razor blade into the school. Def.'s Local Rule 56.1 Statement of Undisputed Material Fact, Nov. 7, 2016, ECF No. 36 ("Def.'s Rule 56.1 Statement"), at ¶¶ 5–6. Plaintiff failed to report this to the Principal, despite being required to do so under the Chancellor's Regulations governing the New York City Department of Education's ("DOE") policies. Id. On May 13, the same student again brought a razor blade to school, and cut another student and a dean during a fight. Id. at ¶ 7.

Because plaintiff failed to report the incident, the Principal called the Special Commissioner of Investigation for the New York City School District ("SCI") to report plaintiff. Id. at ¶ 8. Decl. of Assistant Corporation Counsel Mario G. Frangiose to Def.'s Mot. for Summ. J. ("Frangiose Decl.") at Ex. F, Nov. 7, 2016, ECF No. 37–9. The SCI complaint was forwarded to the Office of Special Investigations ("OSI") for investigation. Def.'s Rule 56.1 Statement at ¶ 9; Frangiose Decl. at Ex. I, Nov. 7, 2016, ECF No. 37–6.

Beginning on May 13, 2013, plaintiff was reassigned from PS 370 to an off-site location, where he continued receiving full pay and benefits. Def.'s Rule 56.1 Statement at ¶ 10. Following an investigation, the OSI substantiated the charges against plaintiff. Id. at ¶ 11. It was determined that plaintiff had been "made aware that [the student] was in possession of a razor blade, which is clearly an immediate safety emergency. AP Dash failed to make the proper notifications, which resulted in [the student] returning to school on Monday, May 13, 2013, again in possession of a razor blade, and assaulting another student and a staff member." Frangiose Decl. at Ex. G, Nov. 7, 2016, ECF No. 37–7.

Failure of plaintiff to report was deemed a violation of Chancellor's Regulation A–412. Id. Following a meeting with plaintiff and his union representative and a review of the OSI report, the superintendent concluded that plaintiff would remain assigned to the off-site location pending the outcome of further disciplinary action. Def.'s Rule 56.1 Statement at ¶¶ 15–16; Frangiose Decl. at Ex. L, Nov. 7, 2016, ECF No. 37–12.

In December 2013, the DOE filed charges against plaintiff pursuant to Education Law § 3020–a for engaging in misconduct, neglect of duty, and conduct unbecoming to his position. Frangiose Decl. at Ex. M, Nov. 7, 2016, ECF No. 37–13; Def.'s Rule 56.1 Statement at ¶ 18. Plaintiff and the DOE settled these charges in February, 2015; plaintiff agreed to retire. Def.'s Rule 56.1 Statement at ¶ 25; Frangiose Decl. at Ex. O, Nov. 7, 2016, ECF No. 37–15. The parties waived their right to initiate legal proceedings relating to or arising out of the settlement. Frangiose Decl. at Ex. O, Nov. 7, 2016, ECF No. 37–15.

III. Procedural History

Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") on December 10, 2013, asserting that defendant had "violated Title VII by discriminating against [him] due to his race, gender and retaliation (disparate treatment and a hostile work environment)." Frangiose Decl. at Ex. P, Nov. 7, 2016, ECF No. 37–16. He received a right to sue letter on December 17, 2014. Frangiose Decl. at Ex. R, Nov. 7, 2016, ECF No. 37–18.

On February 27, 2015, plaintiff filed the instant action in New York...