Complaints from Parents Doom Coach’s Retaliation Claim
A magistrate judge from the Eastern District of New York has recommended that a district judge grant summary judgement to the New York State Department of Education (DOE) in a case in which a coach claimed he was fired in retaliation for a complaint he made about a hostile work environment.
Plaintiff Perry Dortch began working for the DOE in 1990, where he was employed as a health and physical education teacher at Francis Lewis High School (FLHS) in Queens County. He is still employed in that position. However, Dortch also worked, starting in 2003, as a per session coach of the FLHS boys’ varsity basketball team, and from 2006 as a per session coach of the FLHS girls’ varsity handball team. He was terminated from both coaching positions on December 19, 2011.
Dortch was the subject of two disciplinary actions. In June 2005, Dortch received a disciplinary warning letter for unprofessional and insubordinate behavior based on an incident occurring in front of other faculty members, security agents, and students. In June 2008, Dortch received another disciplinary letter for grabbing a student’s arm.
Dortch shared an office with Ralph Montanaro, another health and physical education teacher at FLHS, who was the school’s track coach and whom Dortch knew since about 2003. According to Dortch, sometime in the fall of 2010, Montanaro was reading a newspaper article about Bernard Madoff and, looking at Dortch, said “Look at what your people are doing.” When Dortch asked what he meant by the phrase “your people,” Montanaro said, “You know what I mean…. This is your people. You’re the best at it.” Dortch, who is Jewish, believed Montanaro’s remark to be a reference to Jewish people. Dortch gave a letter, complaining about Montanaro’s remark, to Ali Musa Shama, then principal of FLHS, but Principal Shama did not respond, according to the court.
In February 2011, Montanaro filed a complaint with the assistant principal alleging that Dortch had used threatening language and gestures toward Montanaro in view of students on the track team.
The friction between the two escalated.
On December 1, 2011, Principal Shama received an anonymous complaint from a parent of one of the members of the boys’ basketball team, alleging that Dortch was behaving unprofessionally and mistreating his players in that he “speaks down like they’re not human beings,” “tells them they are like a disease,” is “degrading and always embarrassing them,” and that “parents are afraid to speak out because [Dortch] is very vindictive,” according to the court. A few days later, on December 9, 2011, Principal Shama received a second call from the same anonymous parent complaining that Dortch “went crazy at the game yesterday.”
Principal Shama reported the parent’s complaints to the Office of Special Investigations (OSI). Ultimately, an investigation was initiated.
“Principal Shama concluded that the allegations were substantiated and that Dortch had violated Chancellor’s Regulations and coaching ethical guidelines and policies concerning verbal abuse,” wrote the court. “He gave Dortch an ‘unsatisfactory’ rating for his coaching performance and immediately terminated him from his coaching duties.”
Dortch filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) on May 18, 2012, alleging discrimination on the basis of his religion, and that he was retaliated against for complaining that a co-worker referred to him as a “lost Jew.” The EEOC issued a “right to sue” letter on February 27, 2014. The plaintiff sued on April 21, 2014, relying on 42 U.S.C. § 2000e (Title VII) and the New York City Human Rights Law, N.Y. Administrative Code §§ 8-101 et seq. (CHRL)2014. The defendant moved for summary judgment on June 1, 2015.
In considering the motion, the court moved cautiously in weighing the arguments, noting that “direct evidence of discriminatory or retaliatory intent is rare and must often be inferred from circumstantial evidence.” Matye v. City of N.Y., 12-cv-5534-NGG, 2015 U.S. Dist. LEXIS 42960, 2015 WL 1476839, at *16 (E.D.N.Y. Mar. 31, 2015).
From the start, the court noted that retaliation claims under Title VII are analyzed under a burden-shifting framework established by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Jagmohan v. Long Island R. Co., 622 Fed. Appx. 61, 63 (2d Cir. 2015). Thus, the plaintiff must establish a prima facie case of retaliation, showing “(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.” Jagmohan, 622 Fed. Appx. at 63 (quoting Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)). Further, a complaint of hostile work environment constitutes “protected activity” only if (1) the plaintiff holds a good-faith belief that his or her “workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of [his or her] employment” and (2) that belief is reasonable. See Leifer v. New York State Division of Parole, 391 Fed. Appx. 32, 35-36 (2d Cir. 2010) (quoting Harris, 510 U.S. at 21(1993)); see also Jagmohan, 622 Fed. Appx. at 64.
In the second step of the McDonnell Douglas framework, if the plaintiff succeeds in establishing a prima facie case of retaliation, then a presumption of retaliation arises and the employer must articulate a legitimate, non-retaliatory reason for the action that the plaintiff alleges was retaliatory.
In the final step, if the employer succeeds at the second stage, then the presumption of retaliation dissipates, and the plaintiff must show that, but for the protected activity, he would not have suffered the adverse employment action.
“While there is sufficient evidence for Dortch to establish that he participated in a protected activity, that the defendant knew of the protected activity, and that he suffered an adverse employment action, he cannot establish that there was a causal connection between the protected activity and the adverse employment action,” wrote the court. “Accordingly, he cannot make out a prima facie case of retaliation under Title VII.”
Central to the court’s reasoning were “the intervening events” between the protected activity and the termination of the coaching responsibilities, i.e., the complaints from parents.
“The unsolicited anonymous complaints against Dortch, and the unprofessional behavior by Dortch that those complaints revealed, serve to break any chain of causation between Dortch’s protected activity and DOE’s termination of his coaching roles,” wrote the court.
As for the plaintiff’s CHRL retaliation claim, it was dismissed by the court because he failed to satisfy “the notice of claim” requirements.
Perry Dortch v. New York City Department of Education; E.D.N,Y.;14-CV-2534 (NGG)(PK), 2016 U.S. Dist. LEXIS 39646; 3/23/16
Attorneys of Record: (for plaintiff) David M. Fish, David M. Fish, Attorney at Law, New York, NY. (for defendants) Alberto Rodriguez, LEAD ATTORNEY, New York Law Department, New York, NY; Eric Theodore Murrell, LEAD ATTORNEY, New York City Law Department, New York, NY; Gloria Mihee Yi, LEAD ATTORNEY, NYC Law Department, New York, NY.
