Small v. N.Y.C. Dep't of Educ.

650 F.Supp.3d 89

Tyrell SMALL, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION and Valerie Paul, Defendants.

1:21-cv-1527-GHW

United States District Court, S.D. New York

Signed January 5, 2023

Tyrell Small, Jamaica, NY, Pro Se.

Nicholas Benjamin Green, Ernst Bonaparte, New York City Law Department, Labor & Employment Law Division, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge:

Plaintiff Tyrell Small taught fourth grade. On several occasions, a particularly ill-behaved student in Small's class used gender-based slurs to refer to him. In his complaint, Small alleges that Defendant Valerie Paul, the school's principal, repeatedly failed to redress the student's behavior despite Small's numerous requests for assistance. Later, Small was placed on a teacher improvement plan following accusations that Small pushed and verbally abused that student. Small then filed a grievance with his union to challenge the disciplinary action and informally complained of discrimination to union, district, and borough representatives. Ten days later, Small received a notice that he would be terminated, and he was let go a month after getting the notice. Small alleges that Defendants discriminated against him based on his perceived sexual orientation, that he suffered a hostile work environment, and that Defendants retaliated against him for complaining of Paul's alleged discriminatory conduct.

Small has filed an amended complaint after the Court's previous dismissal of his claims in full, and Defendants have moved to dismiss all of Small's claims as pleaded in the amended complaint. Because the allegations in Small's amended complaint state discrimination claims under federal, state, and local law, fail to state a retaliation claim under any law, and state a hostile work environment claim under local—but not federal or state—law, Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

A. Facts¹

Tyrell Small began working for the New York City Department of Education (the "DOE") as a general education teacher in the fall of 2016. Addendum to the First Amended Complaint ("Addendum"), Dkt. No. 25, ¶ 1. Small received a "highly effective" overall rating for his first school year, and an "effective" rating for the next two school years. Id. ¶¶ 2-4. For the 2019-2020 school year, Small voluntarily joined PS 312 in Queens, New York as a probationary teacher. Id. ¶ 5. Valerie Paul was the principal of PS 312. Id. Small was initially assigned to teach a third-grade class but took over a fourth-grade class early in the school year at Paul's request. Id. Paul observed Small's teaching on November 4, 2019 and January 14, 2020. Id. ¶ 11. Small received an "effective" rating for each observation. Id.

Small alleges that school administrators and other teachers perceived him as gay because he displays feminine qualities in the classroom and does not have a deep voice. Id. ¶ 6. Other teachers told Small that his sexuality was often discussed by teachers and administrators in the teachers' lounge. Id. ¶ 7.

In October 2019, one of Small's students, A.B., drew a picture of Small with his name crossed out and "I hate him" written next to it, and had a verbal altercation with another teacher. Id. ¶ 8. After Principal Paul was told by a student's parent that it was Small's fault that the other teacher was verbally attacked, Paul reprimanded Small and did not take remedial action regarding the student's behavior. Id. ¶ 9. Later that month, the same student called Small gay. Id. ¶ 10. Small reported the incident to Paul in front of his paraprofessional. Id. In response, Paul asked, "what did you do to him?" Id. Paul again took no action to address the student's behavior. Id.

Small noticed a change in Paul's demeanor toward him in November 2019. Id. ¶ 12. Paul would yell at Small in front of others, and undermined Small's disciplinary decisions regarding students, even when Small received parental consent for those decisions. Id. ¶¶ 12-13. The same month, Paul did not allow Small to leave A.B. at school with other teachers during a school trip, despite allowing other teachers to leave their students with behavior problems behind. Id. ¶ 14. Around the same time, students reported to Small that A.B. had put a marker cap into the back of another student's pants "in his upper butt," as his pants were not pulled all the way up. Id. ¶ 15. A.B. "acted out again" after Small addressed the behavior. Id. Paul "did nothing to correct the situation" after Small reported the incident to her. Id.

More than once, Small's other students reported to him that A.B. made discriminatory comments about Small based on his perceived sexual orientation. Id. ¶ 16. Small addressed those comments with A.B. and his mother, but did not bring them to Paul's attention. Id. In November and December 2019, A.B. began throwing items and tearing things off the walls in the classroom after he was asked to do work without disrupting the class. Id. ¶ 17.

In December 2019, Paul pulled Small out of the school's winter show in front of the entire school to reprimand him about his alleged tone with students. Id. ¶ 18. While in Paul's office, Paul spoke to Small in "the most threatening tone" and stated that Small will lose his job before she does. Id.

On January 22, 2020, A.B. threatened Small by stating that "he would slap the gay out of [him]." Id. ¶ 19. Small reported this threat to Paul, who did nothing to remediate the student's behavior. Id. ¶¶ 19, 28. Paul pulled Small into her office, spoke to him in a "condescending tone," and told Small that he "was a problem." Id. ¶ 19. The same month, Paul placed another general education teacher in Small's class to observe him, despite the fact that his class had earned the best test scores in the grade. Id. ¶¶ 20-21. The observation made Small feel uncomfortable; according to Small, "[he] was a target." Id. ¶ 21. In January or February 2020, two parents of students informed Small that Paul was inquiring about him and that "she did not like [him] because [he is] gay." Id. ¶ 22. Around the same time, student A.B. called Small a "gay n*****." Id. ¶ 37. Small reported this to Paul, who did not take any disciplinary action against the student. Id.

On February 7, 2020, A.B. slapped Small in the face with an article of clothing. Id. ¶ 23. Paul did nothing to remediate the student's conduct after it was reported to her. Id. On February 16, 2020, Small received a disciplinary notice dated February 13, 2020. Id. ¶ 24. After Small's disciplinary meeting with Paul on February 26, 2020, Small received a disciplinary letter dated February 27, 2020, containing allegations of corporal punishment and verbal abuse regarding A.B. Id. ¶ 25. Small maintains that the allegations of corporal punishment and verbal abuse are false. Id. Small alleges that Paul coerced his testimony during the investigation for these accusations and explicitly told him what he should not say, and that she failed to question adult witnesses and A.B.'s mother. Id. ¶ 26. Paul continued to use a threatening tone with Small that she did not use when speaking to at least one other teacher. Id. ¶ 27.

Paul placed Small on a teacher improvement plan on February 28, 2020. Id. ¶ 29. He was subject to mandatory weekly meetings and began receiving communications after 10:00 p.m. that mandated a reply. Id. ¶ 29. In response, on March 10, 2020, Small filed a grievance through his union alleging that he was being improperly investigated. Id. ¶ 31. The same day, Paul observed Small and showed him a draft of her observation report, which contained all "Developing" and "Ineffective" ratings. Id. ¶ 35. Ten days later, on March 20, 2020, Small received his employment discontinuance notice, effective April 20, 2020. Id. ¶ 36.

While Small discussed filing discrimination charges against Paul with his union and certain union representatives, id. ¶¶ 32-33, he was initially told that—because he had been discontinued—there was nothing that could be done, id. ¶ 33. When Small expressed his concerns about discrimination to the appeal committee, however, that committee took on his case. Id. ¶ 34.

Meanwhile, also in March 2020 but before Small's discontinuance, A.B. wrote on the classroom's bathroom sign-in sheet "suck d***" and other profanity. Id. ¶ 30. And on April 15, 2020, A.B. wrote on a submission during remote learning, "I am tired of this f****** work, gay f*****." Id. ¶ 37. Despite Small's reports to Paul after each of these incidents, Paul still did not take any disciplinary action against the student. Id. ¶¶ 30, 37.

Small was officially discontinued and terminated on April 20, 2020. Id. ¶ 38. He was replaced by two teachers who, he alleges, are not perceived as gay because they are women who have children and are married to men. Id. ¶ 40. Further, Small alleges that at least five other probationary or untenured teachers, who were not perceived as gay, were not discontinued or disciplined despite engaging in similar behavior to his. Id. ¶ 39, 41-44.

B. Procedural History

After receiving a right-to-sue letter from Equal Employment Opportunity Commission on February 2, 2021, Small commenced this action against Paul and the DOE on February 19, 2021. See Dkt. No. 2. Small asserted claims of discrimination based on his perceived sexual orientation, hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), the New York State Human Rights Law (the "NYSHRL"), and the New York City Human Rights Law (the "NYCHRL"). On July 7, 2021, Defendants filed a motion to dismiss Small's original complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Dkt. No. 18. And on February 7, 2022, the Court granted Defendants' motion to dismiss in full. Small v. City of New York, No. 21-cv-1527, 2022 WL 376030 (S.D.N.Y. Feb. 7, 2022).

On February 28, 2022, Small filed an amended complaint, which is...