Hui-Wen Chang v. N.Y.C. Dep't of Educ.

412 F.Supp.3d 229

HUI-WEN CHANG aka "Wendy Chang", Plaintiff,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, John Ficalora (individually and in his capacity as agent), Robert Kouril, and Gloria Grant, Defendants.

16-CV-2373 (KAM)(LB)

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

Signed September 27, 2019

Filed September 30, 2019

John C. Luke, Jr., Slater Slater Schulman LLP, Melville, NY, Jonathan A. Tand, Raiser & Kenniff, Mineola, NY, for Plaintiff.

John C. Carter, Rebecca Gibson Quinn, Ryan Glenn Shaffer, NYC Law Department, New York, NY, for Defendants.

MEMORANDUM AND ORDER

MATSUMOTO, United States District Judge:

On May 9, 2016, plaintiff Hui-Wen ("Wendy") Chang commenced this action against the New York City Department of Education ("DOE"), the New York City Board of Education, the City of New York, Carmen Farina, John Ficalora, Eduardo Mandrano-Salas, Eric Levitan, Gloria Grant, Robert Kouril, and A.E., pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. , the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. 621 et seq. , and the Americans with Disabilities ("ADA"), 42 U.S.C. §§ 12112 et seq. (ECF No. 1, Complaint.) On March 31, 2017, plaintiff filed an amended complaint against the DOE, Ficalora, Grant, and Kouril, bringing charges under Title VII, the ADA, 42 U.S.C. § 1983, the New York State Human Rights Law ("NYSHRL"), N.Y. Executive Law § 296, and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-502(a), and alleging that she was unlawfully subject to discrimination on the basis of race and national origin and denied an accommodation for a disability. (ECF No. 16, Amended Complaint ("Am. Compl.").)

Pending before the court is defendants' motion for summary judgment. For the reasons set forth below, the court grants in part and denies in part defendants' motion.

BACKGROUND

I. Factual Background

The facts in this section are taken from the defendant's Rule 56.1 statement, plaintiff's response to defendant's Rule 56.1 statement, and the parties' declarations and exhibits, and they are considered in the light most favorable to the non-moving party.

Plaintiff was hired by the DOE as a school librarian in 1995 and was transferred to a position at Newtown High School around 2003. (ECF No. 32, Defendants' Statement Pursuant to Local Civil Rule 56.1 ("Def. 56.1 Statement") ¶ 1.) She is a U.S. citizen who identifies as a Chinese Taiwanese American. (Id. ¶ 2.)

Defendant Ficalora is the principal of Newtown High School and has been so since 1991. (Id. ¶ 3.) In this position, Ficalora is responsible for the students and staff, hiring, evaluations, budgeting, guidance issues, attendance issues, and anything that occurs in the school. (Id. ) Defendant Grant is a library media specialist at Newtown High School and has been since 2013. (Id. ¶ 4.) Defendant Kouril has been a special education teacher at Newtown High School since 1999. (Id. ¶ 5.)

A. 2012-2013 School Year

Plaintiff alleges that she faced "blatant discrimination" based on her race and national origin on or about the first day of the 2012-13 school year because Ficalora and assistant principal Levitan ("Levitan"), who were greeting and shaking hands with other staff, turned away from plaintiff and refused to shake her hand when she entered the school. (Id. ¶ 7.) Plaintiff does not recall any other individual discriminating against her on the first day of that school year. (Id. ¶ 8.) Plaintiff believes that Ficalora and Grant turned their backs on her because she is Chinese, and concluded this because Levitan once asked her why she sees Chinese doctors, instead of American doctors. (ECF No. 39-1, Chang Deposition Transcript ("Chang Tr.") at 55-56.) Plaintiff does not know whether any other Chinese employees at Newtown High School were treated the same as she was on the first day of the 2012-13 school year. (ECF No. 36, Plaintiff's Counterstatement Pursuant to Local Civil Rule 56.1 ("Pl. Counterstatement") ¶ 10.)

Plaintiff alleges that Ficalora and Levitan ignored her when she invited them to a retirement party for another librarian during the 2012-13 school year, and that they did so because of her race and national origin. (Def. 56.1 Statement ¶ 11.) Plaintiff testified that they ignored her "because [she] threw the party and [she] just happen[s] to be a Chinese librarian who initiated to throw the party." (Chang Tr. at 62.)

Plaintiff alleges that Ficalora and Levitan did not authorize the school to join a "New York Library Program" during the 2012-13 school year because of her race and national origin. (Def. 56.1 Statement ¶ 1.) Plaintiff believes they did not join the program because she is "the only Chinese librarian" and that if she had transferred out of Newtown High School, "everything wouldn't happen because of [her] national origin." (Id. ¶ 14.) Plaintiff does not believe that any other incidents of discrimination occurred during the 2012-13 school year. (Id. ¶ 15.)

B. 2013-2014 School Year

On or about September 26, 2013, Grant addressed plaintiff as "China girl." (Id. ¶ 16.) On or about September 27, 2013, Grant asked plaintiff if Chinese people eat cockroaches. (Id. ¶ 17.) Grant asked plaintiff if she had a recipe, searched for one on the internet, and reported back that Chinese and Thai people eat roaches. (Pl. Counterstatement ¶ 18.) These comments regarding roaches were made in front of students, one of whom wrote a statement stating that Grant's comments offended him "and other kids that were there." (Pl. Counterstatement ¶ 18; ECF No. 35-4, Ex. D.)

Plaintiff directed written and verbal complaints to Ficalora regarding Grant's September 26 and September 27 remarks. (Pl. Counterstatement ¶ 19.) Following the complaints, Ficalora had meetings with plaintiff and Grant regarding the incidents. (Id. ¶ 20.) Ficalora told Grant she should not use the term "China girl," and should instead use the term Asian. (ECF No. 39-3, Grant Deposition Transcript ("Grant Tr.") at 17, 20, 37.) When asked whether she met with Ficalora regarding the roach comments, Grant responded "Yes, that's the time he told me I should not speak like that. I should say Oriental, don't say Chinese." (Grant Tr. at 26; see also id. at 37 (explaining that "Asian," rather than "Oriental" was the term Ficalora suggested).¹ ) Grant never reviewed an antiharassment or antidiscrimination policy while at Newtown High School. (Grant Tr. at 10.)

Ficalora testified that he believed Grant understood from their meeting that she could not use language that was inappropriate. (ECF No. 39-2, Ficalora Deposition Transcript ("Ficalora Tr.") at 22.) No formal paperwork was placed in Grant's file regarding Chang's complaint. (Id. at 22-23.) Ficalora testified that he did not write a letter delineating the racial allegations made by plaintiff because "Ms. Chang has an issue with English and Ms. Grant definitely speaks with a Jamaican accent and with English expressions." (Id. at 37.) Ficalora's feeling after speaking with Chang and Grant was "that there [were] misunderstandings [and] that Ms. Grant had no intention of offending Ms. Chang, so [he] did not write to Ms. Chang." (Id. ) Ficalora acknowledged that he is someone who reports complaints of discrimination under Chancellor Regulation A-830, though he did not know whether such reporting was mandatory or if he had a duty to do so. (Id. at 95-96.) Ficalora did not forward plaintiff's complaint regarding the "China girl" and roach comments to another body or agency within DOE. (Id. at 96.)

Other than the statements on September 26 and September 27, 2013, Grant did not make any other comments to plaintiff regarding her race, ethnicity, or national origin during the 2013-2014 school year. (Pl. Counterstatement ¶ 18.)

On October 30, 2013, Ficalora placed a letter in plaintiff's personnel file after he found that there was "sufficient evidence to conclude that [plaintiff had used] inappropriate language and behaved in an unprofessional manner." (Def. 56.1 Statement ¶ 22; ECF No. 31-6, Ex. F.) The letter reports that Ficalora met with plaintiff to discuss a complaint he had received from Grant, in which Grant claimed that plaintiff called her "a piece of shit." (ECF No. 31-6, Ex. F.) Grant responded that plaintiff was "a bigger piece." (Id. )

Plaintiff asserts that Grant called her a "piece of shit" first and that she merely repeated the insult back to Grant in response. (Pl. Counterstatement ¶ 22; ECF No. 31-6, Ex. F.) The letter states that Grant's "complaint indicated that a staff member heard [plaintiff] say the words," and that Ficalora "investigated and did receive confirmation." (ECF No. 31-6, Ex. F.) The letter further stated that plaintiff and Grant would need to improve their working relationship, and that they should deal with each other in a professional manner and never use inappropriate language. (Id. )

Plaintiff believes she received this letter because of her prior complaint about Grant and because Ficalora had decided to get rid of her. (Pl. Counterstatement ¶ 22.) Ficalora testified that he did not recall receiving complaints about plaintiff using inappropriate language before this incident. (Ficalora Tr. at 25-26.)

On March 17, 2014, Ficalora placed a letter in plaintiff's file, which noted that Grant had submitted a complaint about plaintiff on February 4, 2014 and summarized a March 14, 2014 meeting plaintiff had with Ficalora regarding the complaint. (Def. 56.1 Statement ¶¶ 23-24; ECF No. 31-7, Ex. G.) The complaint stated that plaintiff had "held up [her] fists in a boxing position and asked [Grant] if [she] wanted to fight." (ECF No. 31-7, Ex. G.) Grant testified that she was waiting to pass by the plaintiff to get access to her locker, that she had said "oh, my God" because plaintiff was taking too long to open her locker in Grant's opinion, and that plaintiff then turned around and asked Grant if she wanted to fight. (Grant Tr. at 28-30.) Plaintiff denies holding up her fists or...