Non-Tenured, Probationary Teacher Establishes Prima Facie Case of Race Discrimination

In Tolbert v. Smith et al, decided by the Second Circuit on June 24, 2015, the court vacated the district court’s judgment dismissing plaintiff’s claims of race discrimination (and affirmed it with respect to his hostile work environment and defamation claims). This case is instructive on the “prima facie case” portion of the employment discrimination analysis.

Plaintiff, a (non-tenured, probationary) culinary arts teacher, alleged that he was denied tenure for discriminatory reasons, namely, because of his race (African American). The district court held that plaintiff failed to establish a “prima facie case” of discrimination, because he (1) did not suffer an “adverse employment action” and (2) did not raise an “inference of discrimination”.

Under the well-established “McDonnell Douglas” analytical framework for evaluating discrimination cases, a plaintiff

bears the burden of establishing a prima facie case of discrimination by showing (1) he belonged to a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.

First, the court held that plaintiff’s denial of tenure constituted an “adverse employment action”, regardless of the fact that defendants offered plaintiff a fourth year of probationary employment.

The court explained:

An employee suffers an “adverse employment action” if he endures a materially adverse change in the terms and conditions of employment. An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities. Denying Mr. Tolbert tenure and extending his probation was an adverse employment action.

In New York, teachers serve a three-year probationary period. Then it is usually up or out: the teacher either receives tenure or is terminated. But, as here, school districts may extend the probationary term for one year and postpone the tenure decision.

This Court has held or assumed that the denial of tenure is an adverse employment action under Title VII and other employment statutes. This makes sense. Tenure is a material condition of employment because it provides long-term job security.

But the defendants insist that this case is different because Mr. Tolbert was offered a fourth year of probationary employment. According to the defendants, Mr. Tolbert’s employment situation would have been no worse had he accepted the offer.

The defendants ignore the fact that the offer of a fourth year of probation was intertwined with the denial of tenure. Had the plaintiff received tenure, he could have been terminated only for cause. But had he remained a probationary teacher, he could have been terminated for any lawful reason. N.Y. Educ. Law §§ 2573(1)(a), 2573(5)(a), 3020-a. The denial of tenure therefore was the denial of a material improvement in the conditions of the plaintiff’s employment.

Next, the court found that plaintiff presented sufficient evidence to establish an inference of discrimination. For example, he alleged that the defendant principal asked him “Do you only know how to cook black, or can you cook American too?” and told a student that “black kids can’t learn in a cooking class because all they want to do is eat.” The court noted that the alleged “remarks were made by the de facto decisionmaker, the remarks clearly suggest racial bias, and two of the comments were about Tolbert’s qualifications as a teacher.” Furthermore,

Employers are unlikely to leave a “smoking gun” admitting a discriminatory motive. And such evidence is not required to make a prima facie case of discrimination. The plaintiff need not show that Principal Smith declared that the tenure decision was tied to the plaintiff’s race. Statements showing an employer’s racial bias, which Mr. Tolbert identified, are sufficient to support a prima facie case of discrimination.

Moreover, there is a factual dispute as to whether Principal Smith followed regular procedures when he evaluated Mr. Tolbert for tenure. Departures from procedural regularity, such as a failure to collect all available evidence, can raise a question as to the good faith of the process where the departure may reasonably affect the decision.

The court therefore held that plaintiff “met his initial burden of establishing a prima facie case of discrimination, we vacate and remand with respect to the § 1981, Title VII, and NYSHRL discrimination claims.”

Share This:
(212) 227-2100