Small v. New York City Department of Education

Background

Tyrell Small worked as a general education teacher for the New York City Department of Education. During the 2019–2020 school year, one of his fourth-grade students repeatedly directed insults and threats at him related to perceived sexual orientation, including calling him gay, threatening to “slap the gay out of” him, using a homophobic slur, slapping him with an article of clothing, and writing a homophobic insult on an assignment. Small reported the incidents to Valerie Paul, the principal, but alleged that she did not discipline the student or otherwise correct the behavior.

Small was later accused of pushing and verbally abusing the same student. After disciplinary proceedings, Paul placed him on a teacher improvement plan. Small filed a union grievance concerning what he called an improper investigation. He then received a notice of discontinuance and was terminated. Small alleged that the accusations were false, that the defendants acted because of his perceived sexual orientation, and that other probationary teachers who were not perceived as gay were treated more favorably.

Small brought claims against the City of New York and Paul 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. He alleged discrimination based on perceived sexual orientation, a hostile work environment, and retaliation. Small represented himself. The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint adequately states a legally plausible claim.

Title VII discrimination

The court held that Small adequately alleged that perceived sexual orientation was a protected characteristic and that he was qualified for his job. But it concluded that he did not plausibly allege facts connecting the defendants’ actions to discriminatory motivation.

The court noted that the student’s conduct was the only expressly discriminatory conduct alleged. Small did not allege that the defendants made discriminatory comments about his perceived sexual orientation or that his position was filled by someone outside his protected group. The court also found insufficient detail about the teachers and staff members Small identified as comparators, including whether they had been accused of physically or verbally abusing students. Small’s conclusory assertion that the defendants acted because of his sexuality was not enough.

The court dismissed Small’s Title VII discrimination claim. It also dismissed his Title VII claims against Paul with prejudice because individuals cannot be held personally liable under Title VII.

Hostile work environment

The court held that Small did not adequately plead a hostile work environment under Title VII. A hostile work environment claim requires conduct connected to a protected characteristic that is severe or pervasive enough to change the conditions of employment and create an abusive workplace.

The court recognized that the student’s conduct was offensive and that Small alleged five incidents over seven months. It nevertheless concluded that the incidents involved one fourth-grade student and were not sufficiently severe or pervasive under the applicable standard. The court also stated that Small’s authority to discipline the student further undermined this claim. The disciplinary letter, negative evaluation, and termination notice could not support the hostile-work-environment claim because Small had not plausibly alleged that those actions were motivated by discrimination.

The court dismissed Small’s Title VII hostile-work-environment claim.

Retaliation

The court held that Small did not plausibly allege that he engaged in activity protected by Title VII. Protected activity generally requires opposing an employment practice made unlawful by Title VII.

Small identified two alleged protected activities: reporting the student’s conduct and filing a union grievance. The court concluded that reporting the student’s harassment was not protected activity because the complaints concerned conduct by a student, not an unlawful employment practice by the employer. The court declined to follow two decisions that had reached a different conclusion about complaints of student harassment.

The court also concluded that the union grievance was not adequately alleged to be protected activity. Small described it as an “improper investigation” grievance concerning discipline and a teacher improvement plan, but did not allege that the grievance claimed discrimination. The court therefore dismissed the Title VII retaliation claim.

State-law claims and amendment

After dismissing all of Small’s federal claims, the court declined to exercise supplemental jurisdiction—the court’s authority to hear related state-law claims—over his claims under the New York State Human Rights Law and the New York City Human Rights Law. The opinion states that there was no other basis for federal jurisdiction.

Except for Small’s Title VII claims against Paul, the court granted Small leave to replead his dismissed claims. Any amended complaint had to be filed within 21 days of the order. The court also certified that an appeal would not be taken in good faith and denied in forma pauperis status for purposes of an appeal. The court stated that the defendants’ motion to dismiss was granted in full.