Physical Education Teacher States Claim for Religious Discrimination Against Department of Education

In Herling v. New York City Department of Education, decided April 23, 2014, the Eastern District of New York held that plaintiff stated a claim for discrimination based on race and religion, but not retaliation.

Plaintiff, who is Jewish, alleged that he was subjected to discrimination by the school’s African-American principal, defendant Gray. He claimed, for example, that the principal required plaintiff to produce information to substantiate requested days off in light of plaintiff’s grandmother’s death, whereas similarly-situated non-Jewish employees were not required to provide such information. He also alleges that the principal disciplined him for wearing a yarmulke.

The court held that the “U” rating he received from the principal was an “adverse employment action”, since “it was accompanied by a payfreeze and served to bar [plaintiff] from earning per-session wages.” However, the write-ups and disciplinary actions that were “not accompanied by any negative consequences to the conditions of Herling’s employment”, as well as the “theoretical repercussions” allegd to flow from plaintiff’s “U” rating, were not adverse employment actions.

The court also held that plaintiff sufficiently pled facts that give rise to a plausible inference of discrimination, based on (1) discriminatory remarks by his supervisor, and (2) disparate treatment of similarly situated non-Jewish co-workers:

Whether Gray’s remarks establish an inference of discriminatory intent is a close question. On the one hand, each remark was made more than a year before Herling was issued a “U” evaluation for the 2009–2010 school year in June 2010.[] On the other hand, Gray’s comments to Herling were not the stray remarks of a colleague; Gray was Herling’s immediate supervisor and was directly responsible for deciding to issue Herling the overall “U” rating. …

Herling also alleges that similarly situated non-Jewish, African–American coworkers with worse employment records did not receive “U” ratings for the 2009–2010 school year. These allegations serve as an additional “indicia of discrimination” that render Gray’s comments significant. It can reasonably be inferred from the pleadings that these similarly situated co-workers held the same position as Herling and were subject to the same disciplinary standards and procedures. … While the specifics of these allegedly similarly situated coworker’s employment records have not been provided, Herling has sufficiently alleged disparate treatment that raises the necessary “minimal inference that the difference of treatment may be attributable to discrimination.

The court, however, dismissed plaintiff’s retaliation claim, finding a lack of temporal proximity:

The adverse employment actions suffered by Herling are too distant in time from the protected activity he engaged in to plausibly establish the requisite causal connection. As noted above, the only protected activity properly alleged by Herling took place in April 2008, when he complained to Superintendent Waite and the union. After he made these complaints, Herling did not suffer an allegedly retaliatory employment action until nearly a year later, in March 2009.

Therefore, the court “conclude[d] based on the lack of temporal proximity that Herling does not plausibly allege facts that give rise to an inference of a causal connection between his complaint to the Superintendent and the adverse employment action he suffered.”

Since school principals are not “officers”, the one-year statute of limitations period and the notice of claim requirement did not apply to principal Gray.

Finally, citing the Second Circuit’s decision in Tomka v. Seiler Corp., the court held that “liability may be imposed on Gray under the [New York State Human Rights Law] on an aiding and abetting theory even if he is the only person who acted wrongfully.”

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