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

664 F.Supp.3d 311

Mahamadou SYLLA, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION;New York City School Support Services, Inc.;William Quintana; and Robert Paul, Defendants.

18-CV-6524 (RPK) (MMH)

United States District Court, E.D. New York

Signed March 28, 2023

Gibb Surette, Sarah E. Dranoff, Brooklyn Legal Services Corp. B, Brooklyn, NY, for Plaintiff.

Nicholas Philip Pallesen Schaefer, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM AND ORDER

RACHEL P. KOVNER, United States District Judge:

Plaintiff Mahamadou Sylla, an African-American Muslim originally from Mali, worked as a custodian in schools operated by the New York City Department of Education ("DOE") for about eight years. Pl.'s Resp. to Defs.' Local Civil Rule 56.1 Statement ¶¶ 1-6 (Dkt. #76-1) ("Rule 56.1 Resp."). He alleges that during his time there, a co-worker repeatedly called him "mono"—Spanish for monkey. Plaintiff's career with the DOE ended after he threw a pear toward a student.

Plaintiff then filed this lawsuit. He alleges he was subjected to a hostile work environment, retaliation, and unlawful termination, all based on his race, national origin, and religion, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. He further alleges that he suffered discrimination based on race in violation of 42 U.S.C. §§ 1981 and 1983, again in the form of a hostile work environment, retaliation, and unlawful termination. Defendants have moved for summary judgment. For the reasons explained below, defendants' motion is denied as to plaintiff's claim that race- and national origin-based harassment created a hostile work environment in violation of Title VII. The motion is granted as to the rest of plaintiff's claims.

BACKGROUND

Plaintiff worked as a custodian in DOE schools from 2008 until November 2016. Rule 56.1 Resp. ¶ 1. Initially, the DOE directly employed plaintiff. Rule 56.1 Resp. ¶ 13. From August 2016, plaintiff's nominal employer became the New York City School Support Services, Inc. ("NYCSSS"), a corporation formed for the purpose of providing custodial helpers to the DOE. Id. ¶¶ 13-14, 60-62; Pl.'s Reply in Opp'n to Defs.' Mot. for Summ. J. Ex. 10 (Dkt. #76-13). Plaintiff was continuously employed in this custodial role until his 2016 termination, see Rule 56.1 Resp. ¶¶ 1, 49, except for a nine-month period from January 2009 through October 2009 when plaintiff was in the custody of immigration authorities, id. ¶ 9; Defs.' Mot. for Summ. J. Ex. A 156 (Dkt. #75-4) ("Sylla Depo."). According to plaintiff, his then-supervisor, Kevin Burke, initially welcomed plaintiff back to his prior role when he first returned from that immigration detention, but Burke's staff later reduced plaintiff's compensation based on his loss of seniority from this detention. Pls.' Local Rule 56.1 Supp. ¶ 11 (Dkt. #76-2) ("Rule 56.1 Supp.").

Between 2010 through 2016, during vacation periods but not the regular school year, plaintiff would work with Silvio Martinez, a DOE handyman. Sylla Depo. 132. According to plaintiff, every time that he worked with Martinez, Martinez would address him as "mono," meaning monkey. Id. 131-32. Plaintiff further alleges that on March 29, 2010—one of the days on which Martinez called him "mono"—plaintiff found a banana peel in his mop bucket. Rule 56.1 Resp. ¶ 6. Plaintiff believes that Martinez placed the banana peel there. Ibid.

According to plaintiff, he told then-supervisor Burke of these incidents on April 21, 2010, and Burke told plaintiff to avoid Martinez, but did not report plaintiff's complaint to the DOE's Office of Equal Opportunity ("OEO"). Defs.' Mot. for Summ. J. Ex. W. 1-3 (Dkt. #75-26) ("2010 OEO Report"). On May 10, 2010, plaintiff himself filed a complaint with the OEO, alleging that Martinez had harassed him by calling him "mono" and placing a banana peel in his mop bucket. Ibid. The OEO investigated. Ibid. It interviewed plaintiff, Martinez, Burke, and an individual whom plaintiff had identified as being present on one of the occasions when Martinez called him "mono." Id. 2-4. That witness denied having heard Martinez call plaintiff "mono." Ibid. The OEO found insufficient evidence to substantiate plaintiff's allegations, citing Martinez's denial and the absence of any corroborating witness. Id. 3-4. But it found Burke had violated DOE rules by failing to report plaintiff's complaint to the OEO, and determined that it would "consult with Mr. Burke's supervisor . . . regarding appropriate corrective/disciplinary action." Ibid. After the OEO complaint, according to plaintiff, "Martinez [continued] calling [him] monkey for years" when they worked together. Sylla Depo. 163.

In October 2016, plaintiff complained to his Union, the Local 32BJ of the Service Employees International Union, about another occasion when Martinez had called plaintiff "mono." Rule 56.1 Supp. ¶ 14; Sylla Depo. 163; see Rule 56.1 Resp. ¶ 62. According to plaintiff, a Union representative contacted the school about the conduct, and Martinez apologized to plaintiff that same day. Rule 56.1 Supp. ¶ 14; Sylla Depo. 163-64.

By 2011, Robert Paul had replaced Burke as the custodian engineer who supervised plaintiff. Rule 56.1 Resp. ¶ 4. According to plaintiff, on June 10, 2011, Paul reduced plaintiff's work schedule from eight hours per day to six hours, citing "budget cuts." Pl.'s Reply in Opp'n to Defs.' Mot. for Summ. J. Ex. 23 1 (Dkt. #76-26). This schedule reduction was reversed after plaintiff complained to his Union. Rule 56.1 Supp. ¶ 12.

Plaintiff also alleges that in 2015, Paul made disapproving statements about Muslims. For example, Paul stated that "there were too many Muslims" and that Muslims "prayed too much." Sylla Depo. 113-14. In addition, he and the other Muslim coworker were referred to by their last names while other employees were referred to by their first names. Mot. for Summ. J. Ex. Z 65-67 (Dkt. #75-29) ("Paul Depo.").

According to plaintiff, Paul also told plaintiff in 2015 that plaintiff and the other Muslim coworker could not go to pray at the Mosque. Rule 56.1 Supp. ¶ 18. While Paul then relented, he required plaintiff and his Muslim coworker to "punch-out" to do so, even though Paul did not require non-Muslim employees to punch-out for other breaks. Ibid.; Sylla Depo. 118-20. Plaintiff reported Paul to the Union, which reminded Paul that all breaks must be "punched-out." Sylla Depo. 118-20. According to plaintiff, Paul continued to selectively enforce the punch-out rule afterward. Id. 119.

Plaintiff also objects to Paul's having denied plaintiff's request to take off several weeks for vacation from September 14, 2015, through October 3, 2015. Plaintiff wanted the time off for the Hajj, "a pilgrimage Muslims have to do once in a lifetime," but Paul denied the request because a more senior employee had requested vacation over the same dates, Sylla Depo. 112, and instead scheduled plaintiff for vacation during the summer, Rule 56.1 Supp. ¶ 24; Pl.'s Reply in Opp'n to Defs.' Mot. for Summ. J. Ex. 29 1 (Dkt. #76-32). Plaintiff filed a grievance with his Union. Rule 56.1 Supp. ¶ 25. The NYCSSS eventually agreed "that . . . plaintiff [could] make the Hajj," but plaintiff responded that it was too late for him to do so in 2015 as he initially requested. Id. ¶¶ 25, 28. It was agreed that plaintiff could take vacation to make the Hajj the following year. Ibid.

During the time plaintiff worked for Paul, Paul issued plaintiff several warning notices. Rule 56.1 Resp. ¶ 25. In April 2011, Paul gave plaintiff a written and verbal notice that, absent permission, he was not allowed to work from 2:00 p.m. to 11:00 p.m. instead of his scheduled hours, 3:00 p.m. to 12:00 a.m. Mot. for Summ. J. Ex. D (Dkt. #75-7) 1; Rule 56.1 Resp. ¶ 26. In addition, Paul threatened to fire plaintiff in late July 2014 after plaintiff did not answer the door on his lunch break to accept a delivery at the school building. Rule 56.1 Supp. ¶¶ 38-39; Pl.'s Reply in Opp'n to Defs.' Mot. for Summ. J. Ex. 54 1 (Dkt. #76-57). In July 2015, Paul gave plaintiff a written and verbal notice that plaintiff had failed to notify Paul that he would not be working on July 17, 2015. Mot. for Summ. J. Ex. E (Dkt. #75-8) 1; Rule 56.1 Resp. ¶ 27. Plaintiff alleges that he and a coworker did in fact tell Paul that they would both be absent because of an Islamic holiday. Rule 56.1 Resp. ¶ 27. Paul gave plaintiff his third warning for insubordination, on July 31, 2015, on the ground that when Paul discussed the prior warning with plaintiff, plaintiff walked out of Paul's office after telling Paul, "you want to play games." Id. ¶ 28; Mot. for Summ. J. Ex. F 1 (Dkt. #75-9).

On August 25, 2015, plaintiff asked to be moved from the night shift to the day shift. Rule 56.1 Resp. ¶ 21. Paul initially denied his request. Id. ¶¶ 22-23. Plaintiff asserts Paul told plaintiff he was "not going to get it" and that Paul hired two new people for the day shift prior to approving plaintiff's request. Sylla Depo. 42; Rule 56.1 Supp. ¶¶ 32-37. On December 10, 2015, plaintiff filed a second complaint with the DOE OEO alleging that "Paul has harassed and denied him several promotional opportunities despite being qualified and/or having the requisite seniority" and that "Paul has promoted less qualified/senior people over him and also has denied him reasonable vacation requests." Pl.'s Reply in Opp'n to Defs.' Mot. for Summ. J. Ex. 41 1 (Dkt. #76-44); Rule 56.1 Resp. ¶¶ 72-73.

On April 13, 2016, Paul granted plaintiff's request to be moved to the day shift. Pl.'s Reply in Opp'n to Defs.' Mot. for Summ. J. Ex. 38 1 (Dkt. #76-41).

On November 4, 2016, plaintiff threw a pear in the direction of a student, in an incident captured on video, and was fired that same day. Rule 56.1 Resp. ¶¶ 29, 49. The video shows plaintiff sweeping a hallway, when a pear rolls in front of plaintiff's broom. Pl.'s Reply in Opp'n to Defs.' Mot. for Summ. J. Ex. 57 00:06-00:26 ...