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 and taught fourth grade at PS 312 during the 2019–2020 school year. Small alleged that school administrators and teachers perceived him as gay because of his mannerisms and voice. He said a student repeatedly directed anti-gay insults and other misconduct at him, including threats and physical conduct, and that Principal Valerie Paul failed to take remedial action after he reported the incidents.

Small also alleged that Paul yelled at him, undermined his disciplinary decisions, investigated him for allegedly using corporal punishment and verbal abuse, placed him on a teacher improvement plan, and gave him unfavorable observation ratings. He maintained that those accusations were false. Small filed a union grievance about what he described as an improper investigation and later complained about discrimination. Ten days after the grievance, he received notice that his employment would be discontinued, and he was terminated on April 20, 2020.

Small proceeded without a lawyer and filed an amended complaint after the court had previously dismissed his original complaint. He asserted discrimination, hostile work environment, and retaliation claims 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 defendants moved to dismiss the amended complaint for failure to state a legally sufficient claim.

Discrimination claims

The court held that Small plausibly pleaded discrimination claims under all three statutes. At the pleading stage, Small alleged that he was perceived as belonging to a protected group, was qualified for his job, suffered an adverse employment action through termination, and had facts supporting an inference that discrimination contributed to the termination.

The court found significant Small’s allegation that Paul told two parents that she did not like him because he was gay. Considered with the alleged sequence of events leading to his termination, that statement was enough at this stage to support a plausible inference of discriminatory motivation. The court therefore did not dismiss the discrimination claims under Title VII, the New York State Human Rights Law, or the New York City Human Rights Law. It separately dismissed Small’s Title VII claims against Paul because individuals are not subject to liability under Title VII.

Hostile-work-environment claims

The court dismissed Small’s hostile-work-environment claims under Title VII and the New York State Human Rights Law. Those laws require allegations showing harassment that was sufficiently severe or pervasive to alter the conditions of employment and create an abusive workplace. The court concluded that the alleged student conduct, along with the alleged conduct by Paul and coworkers, did not meet that standard.

The court reached a different result under the New York City Human Rights Law, which does not require harassment to be severe or pervasive at the pleading stage. Small plausibly alleged that the student’s comments targeted his perceived sexual orientation, that Paul knew about at least some of the conduct, and that Paul failed to take appropriate remedial action. The city-law hostile-work-environment claim therefore was allowed to proceed.

Retaliation claims

The court dismissed Small’s retaliation claims under Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. It held that Small’s reports about the student’s behavior, without allegations that he complained about the school’s or Paul’s response to that behavior, did not constitute opposition to an unlawful employment practice under the statutes.

The court also held that Small’s union grievance did not qualify as protected activity because he alleged that it challenged an improper investigation, not discrimination. Although Small said he discussed discrimination charges with union, district, and borough representatives, he did not allege that Paul knew about those discussions. The court therefore found that he had not plausibly pleaded the required protected activity and related retaliation elements.

Disposition

The court denied further leave to amend, reasoning that Small had already amended once after receiving notice of the deficiencies and that another amendment was likely to be futile. The court granted in part and denied in part the defendants’ motion to dismiss. It also certified that an appeal would not be taken in good faith and denied Small permission to proceed without paying fees for an appeal.