Pregnancy Discrimination Claims Survive Summary Judgment Against the NYC Dept. of Education

In Clarke v. New York City Department of Education et al, 2020 WL 6047426 (E.D.N.Y. Oct. 13, 2020), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s pregnancy discrimination claims asserted under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.

The court summarized the “black letter” law governing “disparate-treatment” discrimination claims:

Title VII claims are analyzed under the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Walsh, 828 F.3d at 74-75. At the first step, the plaintiff must establish a prima facie case of discrimination by showing: (1) that she belonged to a protected class; (2) that she was qualified for the employment position she held; (3) that she suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). If the plaintiff succeeds in making out a prima facie case, a presumption of discrimination arises and the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. If the defendant proffers such a reason, the plaintiff “has the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir. 2004). To meet this burden, “the plaintiff may, depending on how strong it is, rely upon the same evidence that comprised her prima facie case, without more.” Id. at 124. Furthermore, to defeat summary judgment, “the plaintiff is not required to show that the employer’s proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the ‘motivating’ factors.”

Applying the law, the court first found that plaintiff “easily” satisfied her prima facie case:

Ms. Clarke has easily met the “minimal requirements” to make out a prima facie case of discrimination. See James v. N.Y. Racing Ass’n, 233 F.3d 149, 153-154 (2d Cir. 2000). First, she belongs to a protected class. Second, when she was hired, she had over 15 years of experience as an educator, including two stints as an interim Assistant Principal at WATCH and another high school. (56.1 Resp. ¶¶ 12, 18.) Third, Ms. Clarke suffered two adverse employment actions: she was terminated from her position and she received a “U” rating, which made her ineligible for per session overtime work that she had previously performed. (See 56.1 Resp ¶ 177; Demoret v. Zagarelli, 451 F.3d 140, 151 (2d Cir. 2006) (finding adverse action where, inter alia, plaintiff was “not allowed to earn overtime pay”).) Fourth, Ms. Clarke has established that the circumstances surrounding those adverse employment actions give rise to an inference that Principal Christie acted with discriminatory intent. Ms. Clarke testified that Principal Christie told her that she was “not working as hard” and was “not as efficient” when she became pregnant. She also testified that Principal Christie encouraged her to take time off because pregnancy was preventing her from performing her job, comparing pregnancy to an illness—comments corroborated by Principal Christie in a subsequent audio recording. Those comments alone are sufficient to shift the burden to Defendants for the second stage of the McDonnell-Douglass inquiry. See Back, 364 F.3d at 124 (“[E]vidence of discriminatory comments, which can constitute ‘direct evidence,’ [ ] are adequate to make out a prima facie case, even where uncorroborated.”).

It also held that defendants “easily” met their burden as to the second step by articulating legitimate, nondiscriminatory reasons for the adverse employment actions taken against her, including “a pattern of chronic lateness” and “inattention to detail.”

Turning to the third step, the court explained:

First, a reasonable juror, if crediting Ms. Clarke’s version of events over Principal Christie’s denials, could find evidence of discriminatory intent in Principal Christie’s direct statements and conduct. See Back, 364 F.3d at 121 (holding comments that comported with the stereotype that “work and motherhood are incompatible” were sufficient to show discriminatory intent and to defeat Defendant’s motion for summary judgment). Soon after learning of Ms. Clarke’s pregnancy, Principal Christie allegedly told Ms. Clarke she was “not working as hard,” that she was “not as efficient,” and that she was “fat.” Principal Christie also mocked Ms. Clarke for “rubbing her belly” and imitated her, in front of her colleagues, by exaggeratedly waddling. Moreover, Principal Christie’s anger that Ms. Clarke used the restroom rather than immediately report to her office for their May 20 meeting, and her dismissive response to Ms. Clarke’s request for a reasonable accommodation from DOE’s regulation to allow her to use a restroom near her office, could lead a reasonable juror to conclude that Principal Christie had a derogatory view of Ms. Clarke because of her pregnancy. See Zambrano-Lamhaouhi v. New York City Bd. of Educ., 866 F. Supp. 2d 147, 171 (E.D.N.Y. 2011) (“[H]ostility to Plaintiff as her due date approached, particularly in connection with her frequent bathroom breaks—a common issue for pregnant women—could be seen by a jury as evidence of a view that pregnant women lacked diligence or require undue accommodation.”). These incidents could all reasonably lead to the conclusion that Principal Christie believed that Ms. Clarke’s pregnancy was an obstacle to her professional performance. Principal Christie confirmed as much when she suggested that Ms. Clarke take time off from work because, like an illness, pregnancy rendered her unable “to function on the job.” Examining Principal Christie’s words and deeds, a reasonable juror might find evidence of the familiar stereotype, oft recognized by courts, that pregnant women are unfit for employment. Id. at 171 (collecting cases and secondary sources).

*8 Second, Ms. Clarke allegations demonstrate a temporal proximity between her pregnancy and the circumstances that led to her “U” rating and termination. See Briggs v. Women in Need, Inc., 819 F. Supp. 2d 119, 128-129 (E.D.N.Y. 2011). As Defendants point out, Principal Christie began to give Ms. Clarke negative feedback before her pregnancy However, the tone and frequency of Principal Christie’s negative comments noticeably escalated in December 2015, after Principal Christie allegedly became aware of Ms. Clarke’s pregnancy. In earlier emails, Principal Christie focused on specific tasks, for instance specific meeting minutes that were missing (see Email of Sept. 29, 2015 (Dkt. 44-46) at ECF p. 17), or teacher observations that Ms. Clarke needed to complete, (see Email of Oct. 24, 2015 (Dkt. 44-46) at ECF p. 20). Beginning in December, however, Principal Christie began to comment on Ms. Clarke’s performance generally and began to memorialize concrete dates and times of unsatisfactory work. (See Email of Dec. 23, 2015 (Dkt. 44-46) at ECF p. 26.) A reasonable juror could conclude that before December 2015, Principal Christie wrote emails to give Ms. Clarke feedback, while after, she wrote to document allegations for Ms. Clarke’s employment file. See, e.g., Back, 365 F.3d at 124 (“a jury could find that the administrative deficiencies cited by the defendants were minor, and unimportant to the defendants before the development of the purported discriminatory motive”); United States v. New York City Dep’t of Educ., 407 F. Supp. 3d 365, 395 (S.D.N.Y. 2018) (finding evidence of intent to constructively discharge teachers where school principal was “intentionally building a record of unsatisfactory observation reports in order to oust” them). In addition, on January 7, within weeks of learning about Ms. Clarke’s pregnancy, Principal Christie met with her to discuss her recurring lateness —which Defendants characterized as “the most critical issue with [Ms. Clarke’s] performance” at the time of the meeting—and to require her to use a timecard to punch in daily. (See NYCHCR Verified Ans. (Dkt. 41-3) ¶ 35.) Temporal proximity between pregnancy and an adverse employment action cannot, on its own, support a finding of discriminatory intent. See Briggs, 819 F. Supp. 2d at 128. Here, however, Principal Christie’s discriminatory comments coincided with her efforts to document Ms. Clarke’s alleged performance deficiencies which could support an inference, based on their timing, that Principal Christie’s documented concerns with Ms. Clarke were at least partially pre-textual.

Finally, in their conversation on May 20, Principal Christie acknowledged the link between Ms. Clarke’s pregnancy and the persistent negative feedback when she stated: “It is better for you to take the time to get yourself together than for me to be constantly writing you up, harassing you, because that jeopardizes your job … I know for me, if I’m not well, you see me [sic] was sick last week? I stayed home. I know I could not function on the job.” (Meeting Tr. at 21.) Then and now, Principal Christie denied that her assessment of Ms. Clarke’s job performance had anything to do with her pregnancy. However, given the numerous derogatory comments that Principal Christie made; the temporal proximity of Principal Christie learning of Ms. Clarke’s pregnancy and those comments, as well as the outset of more pointedly negative feedback; and Principal Christie’s suggestion that a pregnancy, like an illness, could keep an employee from functioning on the job, the court cannot say, as a matter of law, that discriminatory animus was not at least a motivating factor in the adverse employment actions taken against Ms. Clarke. In addition, Principal Christie maintains that a number of Ms. Clarke’s allegations simply did not occur.

The court concluded, based on this, that questions of material fact preclude summary judgment as to plaintiff’s claims under Title VII as well as under the NYS and NYC Human Rights Laws (which, according to the court are, respectively, “coextensive with” and “less stringent than” Title VII).

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