*300 OPINION AND ORDER
This case concerns allegations that a principal at Lincoln Academy, a local middle school, has systematically forced out the school’s black male teachers. Plaintiff, one of those teachers, brings this action against the principal and the City of New York Board of Education (the “Board”), alleging the principal discriminated against him on the basis of his race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendants move for summary judgment in their favor. For the reasons stated in this Opinion, defendants’ motion is GRANTED in part and DENIED in part.
I. Standard for Summary Judgment
A moving party is entitled to summary judgment if the Court determines no genuine issue of material fact exists to be tried and the party is entitled to judgment as a matter of law.
See
Fed.R.Civ.P. 56;
see also Holt v. KMI-Continental, Inc.,
The Court’s function in adjudicating summary judgment motions is not to try issues of fact, but instead to determine whether there are such issues.
See Sutera v. Schering Corp.,
Because this case involves allegations of discrimination, an additional consideration applies. The Court “must be cautious about granting summary judgment to an employer when, as here, its intent is at issue.”
Gallo v. Prudential Residential Serv. Ltd. Partnership,
Applying these principles, the facts of the instant ease are as set forth below.
II. Facts of the Case
Lincoln Academy (“Lincoln”) is a middle school located on the upper west side of Manhattan. The school is one of a few small, semi-autonomous “alternative” public schools in the city formed to provide a specialized curriculum focused on a particular subject. The subject of focus at Lincoln is science. Like other “alternative” public schools in the city, Lincoln’s attendees are selected through a formal application process.
During the relevant school term, 1992-93, the racial composition of Lincoln’s student body was approximately 60% black and 40% hispanic. The racial makeup of the school’s faculty was quite different. Of the fifteen teachers, twelve were white and the remainder — consisting of plaintiff, a male, Pamela Profit, a female, and Roy Yarbrough, a male — were black.
In the summer of 1992, defendant Cheryl Rosen became the Director of Lincoln, a position functionally equivalent to the position of principal at more traditional *301 schools. It is alleged that Rosen on several occasions exhibited hostility toward the school’s black students by, among other things, describing students as “monkeys”. See Affidavit of Roy Yarbrough, dated June 15, 1998 Thereinafter “Yarbrough Aff.”], ¶ 6. Plaintiff further alleges through the proffer of evidence that Rosen has a particular disdain for black male students, and has turned away black male student applicants even when they are more qualified than accepted applicants. See id.
In 1993, Rosen dismissed both of the black male teachers at Lincoln. The first to go was Yarbrough, a seasoned teacher and university lecturer who Rosen had hired. See id. ¶ 1; Affidavit of Cheryl Rosen, dated July 15, 1998 [hereinafter “Rosen Reply Aff.”], ¶ 3. By notice dated January 11, 1993, Rosen terminated Yar-brough without explanation. See Yar-brough Aff. ¶¶ 5, 8, 15; see also Declaration of Joan Franklin Mosley, Esq., dated June 21, 1998 [hereinafter “Mosley Decl.”], Ex. 8. Yarbrough had not received any criticisms of his teaching, he had been rated satisfactory in his most recent in-class evaluation and was allegedly liked by students. See Yarbrough Aff. ¶¶ 5, 8, 12, 15; Mosley Decl., Ex. 5. Many students and parents were upset by the termination and protested unsuccessfully for his reinstatement. See Mosley Decl., Ex. 5. Yar-brough believes he was terminated by Ro-sen because he is a black male. See id. ¶ 18. Rosen replaced Yarbrough with Kaye Kerr, a black female. See Affidavit of Brian Copeland, dated June 15, 1998 [hereinafter “Copeland Aff.”], ¶ 3.
The axe fell next on plaintiff. By letter dated July 20, 1993, Rosen informed plaintiff that he had.been terminated effective as of the previous month. See Mosley Decl., Ex. 7. During the school term prior to his termination, it is alleged that Rosen held plaintiff to a different standard of performance than white teachers and made false accusations against him. For example, Rosen chastised plaintiff on the few occasions he turned in his attendance sheets in the afternoon; many white faculty members routinely followed that same course and were not reprimanded. See Copeland Aff. ¶¶ 6, 21; Affidavit of Eric Mahoney, dated June 15, 1998 [hereinafter “Mahoney Aff.”], ¶ 4. Rosen further accused plaintiff of having an untidy classroom, even though his room was neat and clean. See Copeland Aff. ¶ 6; Mahoney Aff. ¶ 5; Yarbrough Aff. ¶ 9. White teachers with cluttered and dirty classrooms were not criticized. See Copeland Aff. ¶ 6. In addition, plaintiff was wrongly accused of not displaying student work and other items of interest. See id. ¶ 19. In contrast, white teachers, such as Eric Maho-ney, did not always display student work and yet were not reprimanded in regard thereto. See Mahoney Aff. ¶ 5. Plaintiff was also observed more frequently than other teachers and Rosen requested to review his lesson plans at a similarly disparate rate. See Copeland Aff. ¶¶ 6, 13, 17,19, 22, 28-29.
Three final suspect incidents preceded plaintiffs termination. In February 1993, Rosen threatened to fire plaintiff for participating in an off-campus meeting with students and parents concerned about the termination of Yarbrough, even though apparently no prohibition against such meetings exist. See Copeland Aff. ¶ 25; Rosen Aff., Ex. I. The next month, Rosen accused plaintiff of keeping a toy gun and razor blade in a desk drawer in one of the school rooms. See Copeland Aff. ¶ 27. Rosen made the accusation without first asking plaintiff whether the items were his and without inquiring of a white female teacher who used the classroom as to whether the objects were hers. See id. ¶¶ 6, 12, 27. Plaintiff denies having placed either item in the drawer. See id.
Finally, at the end of the 1992-93 school term, Rosen gave plaintiff an “unsatisfactory” rating. This rating was given despite the fact that plaintiffs students had the highest standardized test scores in the school for math and despite plaintiffs alleged outstanding rapport with students *302 and successful supervision of various extra-curricular student activities, such as the school yearbook and the boys’ and girls’ basketball teams. See Copeland Aff. ¶¶ 2, 4, 9; Mosley Decl., Ex. 9.
Following negotiations occurring through plaintiffs union representative, plaintiffs performance rating was changed to “satisfactory” and, in lieu of termination, plaintiff was permitted to request a transfer to another school. See Copeland Aff. ¶¶ 31-32.
In succeeding years, Rosen has terminated only one other teacher, Gerald Ster-lin, also a black male. Rosen, who hired Sterlin, has asserted that he was discharged because of his unsatisfactory performance. See id. ¶ 8; Rosen Aff. ¶ 39; Rosen Reply Aff. ¶¶ 3-5.
On August 20, 1996, following his unsuccessful pursuit of remedies before the United States Equal Employment Opportunity Commission and the .New York State Division of Human Rights, plaintiff filed the instant case pro se, alleging race and sex discrimination in violation of Title VII. By Order dated May 16, 1997, Magistrate Judge Katz, the magistrate assigned to this case for general pre-trial case management, directed that pro bono counsel be sought to represent plaintiff. Joan Franklin & Associates, by Joan Franklin Mosley, Esq., subsequently made an appearance and continues to represent plaintiff in this action.
III. Discussion
Defendants contend plaintiff has failed to establish a genuine issue of material fact that plaintiff was discriminated against on the basis of his race and/or sex in violation of Title VII. Before addressing that contention, the Court pauses to decide a lingering issue as to the capacities in which defendant Rosen may be sued under that statute.
A. Claims Against Rosen in Her Personal Capacity
Plaintiff asserts his Title VII claim applies to Rosen in both her individual and official capacities. Plaintiff is wrong; the United States Court of Appeals for the Second Circuit has held that Title VII “limit[s] liability to employer-entities”.
Tomka v. Seiler Corp.,
Anticipating this outcome, plaintiff asserts in the alternative that his complaint, filed
pro se,
should be construed to allege a claim against Rosen in her personal capacity pursuant to Section 296 of the New York State Human Rights Law. Among other things, § 296 imposes personal liability on employees who are actual participants in acts of discrimination.
See Tomka,
The Court must, of course, construe complaints filed
pro se
liberally and with great leniency toward the
pro se
party, since he or she likely is untrained in the law and unfamiliar with how properly to plead factual allegations and to state all the various causes of action which may arise from a given incident.
See, e.g., Haines v. Kerner,
Applying these considerations to the circumstances existing in the case at bar, the Court finds that the appropriate way to proceed is to grant plaintiff leave to amend the complaint in the interest of justice to add a § 296 claim and any related factual allegations. See Fed.R.Civ.P. 15(a). Insofar as plaintiff wishes to revise the complaint in any other respect, plaintiff shall seek leave of Court absent consent by defendants to the revisions.
That issue resolved, the Court turns to an assessment of the factual issues to which defendants’ summary judgment motion is principally addressed.
B. Sufficiency of Evidence Supporting Plaintiffs Title VII Claim
Title VII provides in relevant part that it shall be “unlawful ... for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Plaintiffs allegations may be fairly characterized as involving three somewhat interrelated forms of discriminatory conduct: (i) creation of a work environment hostile to plaintiff because of his race and sex; (ii) retaliation against plaintiff for participating in an off-campus meeting concerning Yarbrough’s termination; and (iii) termination of plaintiff because of his race and sex. The Court addresses whether there are genuine issues of material fact as to each of these claims.
1. Hostile Work Environment Claim
To prevail on a hostile work environment claim, plaintiff must show both (i) that a specific basis exists for imputing the conduct at issue to the employer, and (ii) that the conduct at issue in fact has created a hostile work environment violative of Title VII.
See Distasio v. Perkin Elmer Corp.,
a. The Board’s Vicarious Liability
Hostile work environment claims by their nature tend to involve informal alteration of the terms and conditions of an employee’s work situation.
See, e.g., Burlington Indus., Inc. v. Ellerth,
Accordingly, a requirement in sustaining any hostile work environment claim is that the alleged conduct of the harassing employee be shown to be attributable to the employer. Determination of whether that obstacle has been overcome generally hinges as a preliminary matter on whether
*304
the discriminatory acts were perpetrated by supervisory or non-supervisory employees.
See Quinn v. Green Tree Credit Corp.,
The case at bar presents no difficulty in the resolution of this issue. Defendants concede Rosen, the principal of the school, was a direct supervisor of plaintiff. Defendants have not, moreover, raised the affirmative defense recently articulated by the Supreme Court by which an employer may avoid liability for a hostile work environment if it can establish no genuine issue of material fact that: “(1) [it] exercised reasonable care to prevent and promptly correct any ... harassment by such a supervisor, and (2) the employee unreasonably failed to avail h[im]self of any corrective or preventative opportunities provided by the employer or to avoid harm otherwise.”
Quinn,
b. Sufficiency of the Evidence of a Hostile Work Environment
Once the employer is established to be vicariously liable, the remaining issue is whether the plaintiff has made out a case that he or she was actually subjected to a hostile work environment. Evidence in this respect is sufficient to withstand a motion for summary judgment if a reasonable juror could infer from it the existence of “discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”
Harris v. Forklift Systems, Inc.,
Generally, “isolated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive.”
Tomka,
The Court finds a genuine issue of material fact exists as to whether Rosen created an environment abusive to plaintiff because he is a black man. Construing the evidence in the light most favorable to plaintiff, Rosen engaged in an on-going campaign during 1992 and 1993 of harassing plaintiff by repeatedly subjecting him to false criticism and holding him to a different performance standard than non-black male teachers. Rosen’s termination only of black male teachers, her seemingly racist description of students and her bias against black male student applicants further reasonably can be construed to indicate Rosen was motivated by discriminatory animus in her treatment of plaintiff. Finally, while not sufficient in itself, it is probative that plaintiff felt subjected to an abusive work environment and further believes that Rosen’s hostility stems from the fact that he is a black man.
With respect to Rosen’s termination of other black male teachers, defendants contend no discriminatory animus may be inferred because Rosen was also the person who hired those teachers. Defendants’ contention is premised on the so-called “same actor” inference, the main thrust of which is that it is difficult to infer that the person who hires an employee in a protected class would “suddenly develop an aversion to members of that class.”
Ruane v. Continental Cas. Co.,
No. 96 Civ. 7153,
The Court rejects defendants’ contention that the “same actor” inference
mandates,
at the summary judgment stage or any other, that no inference of discriminatory intent may be drawn in these circumstances. The “same actor” inference is not a necessary inference, it is only a plausible one, and decisions in this Circuit addressing it have warned that its use is not to become a substitute for a fact-intensive inquiry into the particular circumstances of the case at hand.
See, e.g., Grady v. Affiliated Cent., Inc.,
There may also exist supervisors who purposefully hire members of a protected class and then fire them in the hope that the act of hiring will be the focus of attention and will allay any suspicions about other discriminatory acts of the supervisor. A pattern of hiring followed by firings may in certain cases raise a strong inference of such a ploy, especially where the hirings and firings occur in rapid succession, suggesting that the supervisor is seeking to reap the perceived benefit of the hirings while avoiding working for a sustained period with persons against whom the supervisor is prejudiced. Moreover, situations may arise where a penitent supervisor is involved, one who attempts to assuage his or her guilt in harboring prejudice against other employees by hiring members of the protected class, only later to find himself or herself overcome again by animus which leads the supervisor to terminate relevant employees. In short, the Court does not underestimate the variety of unlawful motivations which may lurk behind the conduct of a person who hires and then fires an individual in a protected class. Such motivations, like all issues of intent, are by their very nature difficult to bring to light, especially prior to scrutiny of the relevant individual on the stand at trial.
*306 It may be the case that reliance on the “same actor” inference at the summary judgment stage would be appropriate, even given the Court’s obligation to construe the facts in the light most favorable to the plaintiff, if the plaintiff has failed to adduce any evidence to support his or her allegations of discriminatory animus other than a mere firing of a member of a protected class by the hirer. In the instant case, however, plaintiff has proffered ample other evidence supporting his allegations of race and sex discrimination. 1 Considered against the background of that other evidence, Rosen’s pattern of terminating only black male employees during her tenure as principal reasonably can be inferred to suggest Rosen terminated plaintiff because he is a black man, even considering that Rosen hired some of those terminated employees.
Accordingly, for all the reasons stated, summary judgment in favor of defendants on plaintiffs hostile work environment claim under Title VII would be inappropriate.
2. Retaliation Claim
Title VII provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any ... employee[ ] ... because [such employee] has opposed any practice made an unlawful practice by this title .... ” 42 U.S.C. § 2000e-3(a).
Plaintiff asserts that Rosen retaliated against him for attending a meeting concerning the alleged discriminatory termination of Yarbrough. Unlike plaintiffs hostile work environment claim, which on a motion for summary judgment simply involves an assessment of the totality of the circumstances presented, plaintiffs retaliation claim is subject to the more cumbersome three-part, burden-shifting analysis set forth by the Supreme Court in
McDonnell Douglas Corp. v. Green,
a. Plaintiffs Prima Facie Case
To establish a
prima facie
case of retaliation, an employee must show “ ‘[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action.’ ”
Quinn,
In the instant case, plaintiff has met the de minimis production requirement as to each element of his retaliation claim.
(i) Protected Opposition
First, plaintiffs participation in the off-campus meeting with students and their parents may reasonably be construed to constitute “opposition” to perceived discrimination. In ratifying Title VII’s anti-retaliation provision, “Congress sought to protect a wide range of activity”.
Grant v.
*307
Hazelett Strip-Casting Corp.,
Construing the facts in the light most favorable to plaintiff, the off-campus gathering in which plaintiff participated constituted a protest meeting prompted by the attendees’ good faith, reasonable belief that Yarbrough had been discriminatorily discharged. Plaintiffs discussions with parents at the gathering is, moreover, similar in nature to the critical letter written by an employee to customers, conduct which the Second Circuit has found constitutes protected activity.
See Sumner,
(ii) Adverse Employment Action
Second, plaintiffs receipt of an “unsatisfactory” rating and, later, a related letter of termination following the occurrence of the meeting suffices to establish an adverse employment action. Defendants suggest no adverse employment action may be considered to have occurred because plaintiff was ultimately able to negotiate a transfer to another school in lieu of a formal discharge from Lincoln. The Court disagrees. The inquiry in this respect is not whether defendants’ action ultimately had an “adverse” effect on plaintiff in terms of his standard of living, happiness or ability to secure an equivalent position elsewhere. Rather, the relevant issue is whether the employer’s action constituted a “ ‘materially adverse change in the
terms and conditions
of [plaintiffs current] employment” ’ with .that employer.
Torres v. Pisano,
It is undisputed that plaintiff was required to leave his employment with Lincoln. Such an employment decision is clearly an adverse change in the terms and conditions of plaintiffs employ with Lincoln. Consequently, plaintiff has adduced sufficient evidence at the summary judgment stage as to this element of his retaliation claim. At most, defendants’ assertion would be relevant to assessment of damages, since it suggests plaintiff succeeded in avoiding some of the potential damage to him from the adverse employment decision by allegedly securing a similar position at another school.
(iii) Causation
Finally, plaintiff has proffered sufficient evidence that there is a causal connection between, his protected activity and the adverse employment action. To satisfy this burden, plaintiff need only show that “a retaliatory motive play[ed] a part in the adverse employment actions”,
i.e.,
that retaliation was a motivating factor.
Padilla v. Metro-North Commuter R.R.,
b. Defendants’ Legitimate, Non-Retaliatory Explanation
Because plaintiff has established a
prima facie
case of retaliation, defendant must come forward with a legitimate, non-retaliatory explanation, for the adverse employment decisions.
McDonnell Douglas,
The Court finds defendants have satisfied their de minimis burden by proffering evidence supporting the legitimate, non-retaliatory explanation that the adverse rating and subsequent discharge of plaintiff occurred as a result of plaintiffs poor teaching performance and general uncoop-erativeness.
c. Pretext
Once the first two steps of the
McDonnell Douglas
analysis have been fulfilled, the presumption of retaliation established by plaintiffs
prima facie
case drops away and plaintiff shoulders the ultimate burden of persuasion to show there is a genuine issue of material fact as to whether defendant’s explanation is a mere pretext for retaliation. The Court finds plaintiff has met that burden. Defendants’ proffered explanation and supporting evidence is consistent with plaintiffs
prima facie
evidence suggesting the explanation is merely a fabrication designed to insulate defendants from liability for Rosen’s alleged retaliatory actions. Thus, “the conflict between the plaintiffs evidence [of retaliation] ... and the employer’s evidence of a non[retaliatory] reason reflects a question of fact to be resolved by the factfinder after trial.”
Cronin,
3. Discriminatory Termination Claim
Plaintiffs last claim is that he was terminated because he is a black male. This claim, like plaintiffs retaliation claim, is analyzed according to the three-step McDonnell Douglas test. The Court addresses each of those steps.
a. Plaintiff’s Prima Facie Case
The elements of a
prima facie
case regarding a claim of discriminatory termination are: (i) membership in a protected class; (ii) qualification for the position at issue; (iii) an adverse employment decision; and (iv) occurrence of the decision under circumstances that lead to an inference of discrimination.
See Shumway v. United Parcel Serv., Inc.,
The only element of a prima facie case remaining to be satisfied is, therefore, whether plaintiffs discharge occurred under circumstances giving rise to an inference of discrimination. The Court finds that that element has easily been satisfied. Plaintiff has proffered evidence that Rosen expressed animus towards blacks generally by describing students as “monkeys”; that Rosen has given preference to non-black male applicants over more qualified black male applicants; that Rosen’s history of discharging teachers evidences a discriminatory pattern of discharging black males; that Rosen made numerous false accusations against plaintiff in order to lay the groundwork for terminating him; and that Rosen held plaintiff to a different standard of performance than teachers who are not black males.
b. Defendants’ Legitimate, Non-Discriminatory Explanation
Likewise, defendants have satisfied their prima facie burden to proffer legitimate non-diseriminatory reasons for the treatment of plaintiff. Defendants have submitted documentation suggesting plaintiff had had poor work performance and was unreceptive to Rosen’s constructive ' criticism. Defendants have also proffered sworn testimony by Rosen that she has discharged teachers based only on their performance, not based on their sex and/or race. Finally, defendants have submitted both documentation and testimony disputing plaintiffs assertion that he was falsely accused of wrongdoing and that he was subjected to disparate treatment.
c. Pretext
The parties’ threshold burdens having been fulfilled, the remaining question is whether, given the evidence proffered by defendants and absent the presumption of discrimination attaching to plaintiffs prima facie case, plaintiff has established a genuine issue of material fact as to his claim of discriminatory termination. The Court finds that he has. Determination of whether defendant Rosen had a discriminatory motive largely hinges on whether her concerns about plaintiffs teaching'abilities are legitimate or, instead, are simply falsehoods manufactured by Rosen because of her alleged bias against black men. That fact question involves credibility assessments that can only be made by the ultimate factfinder.
Moreover, defendants have failed to rebut several of the portions of the evidence proffered by plaintiff suggesting bias on the part of Rosen, including Rosen’s purported use of racial slurs, her discrimination against black male student applicants and her disparate treatment of plaintiff in certain respects.
Accordingly, summary judgment in favor of defendants on this claim would be inappropriate.
CONCLUSION
For the r.easons stated above, defendants’ motion for summary judgment is hereby GRANTED in part and DENIED in part. Plaintiff shall file an amended complaint containing a § 296 claim by March 29, 1999. Should plaintiff wish to amend the complaint in any other respect, plaintiff shall, absent consent, seek leave to amend by March 29, 1999; opposition, if any, shall be due April 12, 1999; and a reply, if any, shall be due April 19, 1999. The parties shall appear for a pre-trial conference before this Court at the United States Courthouse, 500 Pearl Street, New York, New York, on April 16, 1999, at 10:00 a.m.
SO ORDERED.
Notes
. Thus, even if the Court were to disregard entirely defendant Rosen’s history of firing only black male teachers, the Court would still find plaintiffs evidence supporting his claims sufficient to withstand defendants’ motion for summary judgment.