African American School Counselor Survives Summary Judgment on Race Discrimination and Retaliation Claims

In Postell v. Rochester City Sch. Dist., No. 11-CV-6550L, 2015 WL 5882287 (W.D.N.Y. Oct. 8, 2015), the court denied defendants’ motion for summary judgment on plaintiff’s race discrimination claim under 42 USC 1981.

Plaintiff, an African American school counselor for John Marshall High School, alleged (among other things) that the defendant subjected her to race discrimination by, e.g., reducing her caseload and moving her office to a windowless storage room. She asserted claims of race discrimination under 42 USC 1981, retaliation for complaining about race discrimination under 42 USC 1981, and race discrimination under 42 USC 1983 and Monell v. Dep’t of Social Servs.

Race Discrimination Under 42 USC 1981

As to plaintiff’s section 1981 race discrimination claim,

Plaintiff alleges that her assignments to Room 242 (what amounted to a racially segregated office, lacking the computers, telephones and conference space necessary for plaintiff to perform her job) and Room 249 (one of three unventilated interior storage rooms, all of which happened to be assigned exclusively to employees of color for the 2009–2010 school year), combined with the unfavorable change in her student case load from high school students to a less-prestigious caseload of middle school students, constituted an adverse employment action against her.

In finding that plaintiff presented sufficient evidence of an “adverse employment action”, the court explained:

The District attempts to give plaintiff’s allegations short shrift, characterizing them as nothing more than frivolous complaints about the size of her office, and pointing out that plaintiff’s job title, salary, hours and other traditional “terms and conditions” of employment remained unchanged. However, the gravamen of plaintiff’s claims is that Smith, deliberately and without any conceivable nondiscriminatory motive, traded plaintiff’s well-served high school caseload with the less prestigious caseload of a Caucasian middle school counselor, and repeatedly and unnecessarily placed plaintiff in office spaces that were inadequately outfitted or physically uncomfortable to the point of being harmful to her health, in locations which were inconvenient and isolated from other staff members and the students to whom plaintiff was assigned, meanwhile providing similarly-situated Caucasian employees with better treatment and better resources. …

The undisputed facts show that plaintiff was removed from counseling high school students, a position she had held for over 15 years, and which she viewed as more prestigious and demanding than work with middle school students. She was told by defendant Smith that another employee could serve the high school students better. This, together with the other negative actions by Smith, certainly appear to constitute an “adverse” employment action. On this record, the Court cannot say that no adverse employment action existed. I believe that a reasonable trier of fact might conclude that Smith’s actions toward plaintiff effected so substantial a change in the terms and conditions of her employment as to constitute an adverse employment action. Therefore, at the very least, there is a question of fact as to whether the actions taken were materially adverse.

The court also rejected the defendant District’s argument that Smith, a building principal, “was not a final policymaker for the District, and that there is no basis to impute liability to the District for his actions.”

Noting, among other things, that it was “undisputed that the District’s communications to plaintiff concerning the assignments, and her requests for changes to those assignments, were made between plaintiff and Smith directly”, the court held “that the record presents material questions of fact with respect to whether Smith [a building principal] was a final decision maker concerning the potentially-adverse actions alleged by the plaintiff, and thus, questions of fact as to whether liability may be imputed to the District for the harm that befell the plaintiff as a result.”

Retaliation

The court also denied the District’s motion for summary judgment on plaintiff’s section 1981 retaliation claim, explaining:

To the extent that plaintiff relies on her complaint to Smith as the requisite protected activity, I find, as above, that there are material questions of fact as to whether plaintiff’s assignment to an unventilated and potentially unhealthful storage room could be considered an adverse employment action—that is, a material change in the conditions of employment which would have dissuaded a reasonable employee from complaining about unlawful discrimination. I further find that there are questions of fact concerning whether Smith was a final decision maker with regard to office assignments, in a manner sufficient to establish municipal liability for his actions. Because, on the facts presented, a reasonable finder of fact could conclude that Smith’s refusal to move plaintiff to a different location—even when allegedly suitable alternatives existed and when plaintiff had produced medical evidence that her present office assignment was harmful to her health—was an adverse employment action, concerning a matter as to which Smith was the final decision maker, and was motivated by a desire to retaliate against the plaintiff for her complaint of race-based discrimination, the District’s motion for summary judgment dismissing plaintiff’s retaliation claim is denied.

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