MCINTOSH v. DEPARTMENT OF EDUCATION OF CITY OF NEW YORK (2022)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered July 10, 2020, which granted the motion of defendants The Department of Education of the City of New York and The City School District of the City of New York (together, the DOE) for summary judgment dismissing plaintiff's age and race discrimination claims under the New York City and New York State Human Rights Laws, unanimously affirmed, without costs.

The DOE offered evidence in admissible form of one or more nondiscriminatory motivations for its actions;  accordingly, we need not determine whether a prima facie case of discrimination has been established (see Cadet–Legros v. New York Univ. Hosp. Ctr., 135 A.D.3d 196, 200, 21 N.Y.S.3d 221 [1st Dept. 2015];  see also United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 [1983]).  Rather, the question is whether the DOE has sufficiently met its initial burden as the moving party of showing that “there is no evidentiary route” that could allow a fact-finder to believe that discrimination played a role in plaintiff's dismissal from her position (Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 40, 936 N.Y.S.2d 112 [1st Dept. 2011], lv denied 18 N.Y.3d 811, 2012 WL 1432090 [2012]).  The DOE has, in fact, made that showing, by submitting testimony and documents demonstrating that plaintiff, a probationary teacher, was dismissed because she failed to conduct and submit assessments as required, failed to provide lesson plans and conduct records when asked, proved to be an ineffective teacher, and admitted to being outside the building during part of an instructional period without requesting permission or arranging for coverage of her class by another teacher (see e.g. Matter of Tenenbein v. New York City Dept. of Educ., 178 A.D.3d 510, 510, 111 N.Y.S.3d 844 [1st Dept. 2019]).

For her part, plaintiff failed to show that the DOE's proffered reasons for dismissing her were false, misleading, or incomplete (see Cadet–Legros, 135 A.D.3d at 200, 21 N.Y.S.3d 221;  see Hamburg v. New York Univ. Sch. of Medicine, 155 A.D.3d 66, 76, 62 N.Y.S.3d 26 [1st Dept. 2017]), or that the DOE had a mixed motive – that is, that the dismissal was motivated, at least in part, by discriminatory bias (Hamburg, 155 A.D.3d at 76, 62 N.Y.S.3d 26;  see Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 127, 946 N.Y.S.2d 27 [1st Dept. 2012], citing Williams v. New York City Hous. Auth., 61 A.D.3d 62, 78 n. 27, 872 N.Y.S.2d 27 [1st Dept. 2009], lv denied 13 N.Y.3d 702, 2009 WL 2622097 [2009]).  Instead, plaintiff presented only hearsay and conclusory statements without factual evidence (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]).  As to plaintiff's assertion that another teacher had engaged in similar misconduct yet was not subject to disciplinary action, plaintiff failed to aver that administrators even knew about the purported misconduct by the other teacher (id.).