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Tolbert v. Smith, No. 14-1012 (2d Cir. June 24, 2015)

The Second Circuit holds that racially-biased comments by a decision maker - even if not specifically concerning the adverse employment decision - may be circumstantial evidence of a biased motive if it is related in some way to the employee's performance. The panel also holds that denial of tenure to a public school teacher is an adverse employment action, even if the teacher is invited to continue to working.

Tolbert v. Smith, No. 14-1012 (2d Cir. June 24, 2015):

"Mr. Tolbert was a culinary arts teacher at John Marshall from 2006 to 2009. He was a non-tenured, probationary teacher, who taught three culinary arts classes a day." As a probationary teacher, he had three years to obtain tenure, or else his contract would end. He was evaluated each year. In his second year, he was rated at "Proficient" or "Meets Professional Standards."

In his third year, he got a new principal named Smith. Tolbert had a number of complaints under Smith: too many students in his class, not assigned a paraprofessional, allegedly subpar janitorial services in his room. But the most serious allegations were that Smith made several racial remarks, two of which were directed at Tolbert himself:

"In the fall of 2008, Mr. Tolbert volunteered to cook for a homecoming breakfast. When discussing what food would be served, Mr. Tolbert alleges that Principal Smith asked him: 'Do you only know how to cook black, or can you cook American too?' ....

"In October 2008, a student in Mr. Tolbert's class alleges that Principal Smith asked her if she was learning anything from Mr. Tolbert. In January 2009, during a conversation about reopening the kitchen, Principal Smith asked the same student 'how [she] expected to learn if all [she] was learning to cook was black food.' JA 450. When asked to define 'black food,' Principal Smith allegedly said 'that what he meant was American food.'"

Smith supposedly also said to another student that "black kids can't learn in a cooking class because all they want to do is eat." At There times, Smith supposedly referred in an uncomplimentary way to the black student body, asserting that they came from dirty homes and "they are not like us." Smith denied making any of these remarks.

For the third school year, plaintiff received two positive and one negative reviews, the latter from Ms. Avery-DeToy. Smith (without telling Tolbert) assigned the task of evaluating plaintiff from one of his positive reviewers to Avery-DeToy.

Avery-DeToy recommended that Tolbert be denied tenure. "Principal Smith agreed, but he recommended that Mr. Tolbert receive a fourth year of probation. Principal Smith declared that he made this decision '[b]ased on Tolbert's observations throughout 2008-2009, his final evaluation and my own observations of his performance.'" Tolbert refused the one-year extension.

Tolbert filed a complaint against Smith and the school district under § 1981, Title VII and New York law, alleging discrimination and hostile work environment (as well as defamation, a claim not discussed here). The district court granted summary judgment on all claims.

The Second Circuit affirms the hostile work environment claim (holding that the principal's words and actions were not objectively severe or pervasive), but reverses the denial-of-tenure discrimination claim.

The panel holds first that the denial of tenure is, by itself, an adverse employment action. The school district argued that There was no adverse action, because Tolbert was invited to continue to teach. The denial of the job security vouchsafed by public-sector tenure itself has material value:

"Had the plaintiff received tenure, he could have been terminated only for cause. But had he remained a probationary teacher [for a fourth year], he could have been terminated for any lawful reason ... The denial of tenure Therefore was the denial of a material improvement in the conditions of the plaintiff's employment."

Indeed, the court notes that "were we to accept the defendants' interpretation, then failure to promote claims-or any claims alleging the denial of an employment benefit-would be non-actionable."

The panel also holds that the record creates a genuine dispute of material fact about Principal Smith's possible racial motive for denying tenure to Tolbert, based on Smith's alleged racial comments. Oddly, "[when responding to Mr. Tolbert's discrimination claims, the defendants did not discuss any of these remarks in their briefs to this Court or in their briefs before the district court."

The district court considered the comments "stray remarks," but the panel disagrees. First, the comments all occurred with in single school year, the last within three months of the denial. Second, the comments were made by a putative decision maker and "the remarks clearly suggest racial bias,' with "two of the comments were about Tolbert's qualifications as a teacher."

It does not matter - in terms of presenting a genuine dispute - that the comments were not specifically about the employee's own race. "Statements showing an employer's racial bias, which Mr. Tolbert identified, are sufficient to support a prima facie case of discrimination." Along with the racial comments, the panel also identifies the departure from ordinary procedures in denying tenure.

Finally, because the defendants did not advance a legitimate, non-discriminatory reason for denying tenure to the plaintiff, the case was remanded for further proceedings.

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