- Principal’s Negative Evaluation Did Not Constitute and Adverse Employment Action
- Former Student Who Claimed Her Graduate School Retaliated Against Her After Complaining of Sexual Harassment, Stated a Claim for Breach of Contract
- Student Entitled to Continuance to Let His Attorney Attend Disciplinary Proceeding
Principal’s Negative Evaluation Did Not Constitute and Adverse Employment Action
In Atkins v. Rochester City School District, Defendant-Appellee, an African-American school principal filed a complaint alleging race and age discrimination by a school district in the calculation of his evaluation rating. The United States District Court for the Western District of New York granted the school district summary judgment, and the Principal appealed to the Second Circuit Court of Appeals. The Court of Appeals affirmed that the Principal’s negative employment evaluation did not constitute an “adverse employment action” within the meaning of Title VII of the Civil Rights Act (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”).
According to the Court it was undisputed that the plaintiff, an African-American woman in her mid-sixties, was assigned to be Principal of the Freddie Thomas High School (“Freddie Thomas”) for the 2012-13 school year. Freddie Thomas was one of ten schools in the District that had been targeted for phase-out and closure. During the 2012-13 school year, the District implemented a new evaluation process for principals: the Annual Professional Performance Review (“APPR”). Principals received a total score based on several categories, and that numerical score corresponded to one of four ratings: highly effective, effective, developing, and ineffective. In September 2013, the plaintiff received a rating of “developing” for the prior school year of 2012-13. She appealed the rating, but her appeal was denied by a unanimous appeals panel.
Although the plaintiff never saw the data used in calculating her APPR score, she contended that the District treated her differently from other employees by “deliberately” submitting to the State “inaccurate” data, which was then used in calculating her score.
The Court recognized that under Title VII and ADEA, “a plaintiff alleging employment discrimination on the basis of race and age bears the burden to establish a prima facie case of discrimination at the summary judgment stage. To establish a prima facie case of discrimination, a plaintiff must show that ‘(1) she is a member of a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination.’ The burden of demonstrating these elements is ‘de minimis’ at the summary judgment stage, but ‘a jury cannot infer discrimination from thin air.’”
In determining if the plaintiff established a prima facie case of discrimination, the Court also recognized that an “adverse employment action is a ‘materially adverse change in the terms and conditions of employment.’ The action must be ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.’ Examples of adverse actions include ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, and significantly diminished material responsibilities.’”
The plaintiff conceded that a negative employment evaluation, standing alone, does not constitute an adverse employment action, but argued that her low APPR rating resulted in her being assigned to schools that were failing and closing and being deprived of the resources she needed to perform her Principal job, and that these consequences constituted a material adverse change in her work conditions.
The Court responded to these arguments reasoning that, although the plaintiff’s work conditions may have been “suboptimal before and after her APPR rating,” the evidence did not show a material adverse change as a result of the APPR rating. “Her assignments to failing schools predate that rating, which she received in September 2013. Atkins was assigned to Freddie Thomas in 2012. From Freddie Thomas, she ‘was placed in another dying school’ in July 2013. The evidence does not show any similar assignments after that one.” Plaintiff also complained of a “lack of clerical and administrative support and the fact that she was not given a ‘clean professional private office space’ like other principals.” The Court stated that these “poor working conditions, the deprivation of resources, and the lack of staff support … pertain, in large part if not entirely, to the 2012-13 school year at Freddie Thomas. The conditions cannot have resulted from her later APPR evaluation,” and to the extent the plaintiff suggested that she faced similarly poor conditions and received similar treatment after leaving Freddie Thomas, the Court concluded “that merely shows a continuation of her situation prior to the APPR rating. Because Atkins fails to present evidence of any ‘negative ramifications’ flowing from her unfavorable APPR rating, she cannot establish an adverse employment action.”
Former Student Who Claimed Her Graduate School Retaliated Against Her After Complaining of Sexual Harassment, Stated a Claim for Breach of Contract
In Novio v. The New York Academy of Art, a female former graduate student sued her former school for breach of contract claiming that the school retaliated against her after she complained about a professor’s sexual harassment of female students. The “contracts” she relied upon were statements made in the student handbook and on the school’s website which promised to provide career services to her, including strong job placement support, an educational environment free of sex discrimination and sexual harassment, and freedom from retaliation for those who reported sex discrimination or sexual harassment.
According to the complaint, the Plaintiff attended the graduate school from September 2013 until May 2015, when she graduated with a Masters of Fine Arts degree. She had taken courses from a professor, a Department Chairman, in 2014 and 2015, during which time she found his persistent sexual commentary in the classroom and inappropriate touching of female students created a hostile educational environment that interfered with her education.
She further alleged that she was consistently worried that she would run into the professor at NYAA’s facilities and be subjected to his sexist comments and inappropriate touching. She alleged that the professor’s “persistent sexual comments and touching distracted her and significantly interfered with her ability to engage in and enjoy her studies” and that the professor “allegedly showed favoritism to female students who reacted favorably to his sexual comments and advances,” believing this to be the professor “implicitly communicating a quid pro quo” to her and other female students, such that she worried that the professor could block her from important academic and career opportunities if she was not nice to him.”
Plaintiff alleged that the school retaliated against her once they learned that she had joined three other students in alleging sexual harassment claims against the professor by refusing to provide references or recommendations, discouraging her discouraging attending school events; the school alumni association stopped sending emails to the her even though she had previously been elected Secretary of that organization; and it stopped making her aware of school functions, art shows, and networking events that could help her find employment as an artist.
She also alleged that the school did not take adequate action to stop the sexual harassment or acts of retaliation against her when she complained further, and that this failure to take adequate corrective action only emboldened the professor and the other faculty members who were retaliating against her.
She alleged that in an email to another professor that professor rejected her request for a job recommendation, saying “I have never turned down a student I loved, as I did you, in 27 years of teaching. But the fact that you piled on to hurt Wade, makes it impossible for me to help you.”
Her complaint alleges that she and the school entered into a valid and binding contract, and that she substantially performed all of her duties and obligations under the contract, including by paying monetary consideration. In return for the monetary consideration paid by her, she alleged that the school made specific promises to her to “(a) to provide Plaintiff with an educational environment free of sex discrimination in all programs and activities, including academic programs and school-sponsored activities on an off campus; (b) to provide Plaintiff with an educational environment free of sexual harassment; (c) to respond promptly to complaints of sexual harassment, including unwelcome advances and sexist comments, whether they occurred in a single episode or were part of a recurring pattern of behavior; (d) to take immediate action to eliminate sexual harassment, prevent its recurrence, and address its effects; (e) to designate a Title IX coordinator who is trained and experienced to address complaints of sex discrimination, including helping victims navigate the process and seek remedies; (f) not to retaliate against anyone who participated in the process of reporting or attempting to remedy sexual harassment or discrimination; and (g) to provide career services to Plaintiff, including strong job placement support.”
First, the Court recognized that “‘New York State courts have permitted a student to bring a breach of implied contract action against an institution of higher education,’ but first, such ‘a student must identify specific language in the school’s bulletins, circulars, catalogues and handbooks which establishes the particular “contractual” right or obligation alleged by the student in order to make out an implied contract claim.’”
The Court found that here the plaintiff had listed “certain specific promises relating to the alleged rights and obligations of the parties, and has pointed to the documents where such promises can be found. Accordingly, Plaintiff has identified a contract with the school sufficient to satisfy the first element of this inquiry.”
Second, the Court reasoned that a student must identify promises made by the school “to provide for certain specified services.” Here, Plaintiff did identify promises made by the Academy that qualify as “certain specified services,” including to respond promptly to complaints of sexual harassment, including unwelcome advances and sexist comments, whether they occurred in a single episode or were part of a recurring pattern of behavior; to take immediate action to eliminate sexual harassment, prevent its recurrence, and address its effects; to designate a Title IX coordinator who is trained and experienced to address complaints of sex discrimination, including helping victims navigate the process and seek remedies; and to provide career services to plaintiff, including strong job placement support.
Lastly, the Court said that “‘to state a valid claim for a breach of contract, a plaintiff must state when and how the defendant breached the specific contractual promise.’ Here, Plaintiff has adequately alleged when and how Defendant Academy has breached each of the four specific promises noted above.
Thus, the school’s motion to dismiss was denied.
Student Entitled to Continuance to Let His Attorney Attend Disciplinary Proceeding
In the Matter of Bursch v. Purchase College of the State University of New York, a student brought an Article 78 proceeding to review a public college’s determination upholding a decision of its disciplinary hearing committee, finding that the student committed disciplinary violations including sexual assault of another student, and expelling him from the school. The Supreme Court, Appellate Division, confirmed the determination and dismissed the petition, and student appealed to the State’s highest Court.
An Article 78 proceeding refers to a special proceeding brought under Article 78 of New York’s Civil Practice Law and Rules and is used to appeal the decision of a New York State or a local agency to the New York courts.
The Court of Appeals held that “under the particular circumstances of this case” the public college’s disciplinary hearing committee members abused their discretion by failing to grant the student’s request for a three-hour adjournment so that his attorney could attend the proceeding. There was no further elaboration. The Appellate Division’s ruling was reversed, with costs, and the petition insofar as it sought to annul the student’s disciplinary determination was granted and the matter was remitted to the Appellate Division, Second Department, with directions to remand the matter to the disciplinary hearing committee for a new disciplinary hearing.
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