    14-1012
    Tolbert v. Smith


                         UNITED STATES COURT OF APPEALS

                                  FOR    THE   SECOND CIRCUIT
                        ____________________________________

                                    August Term, 2014

         Argued:       January 7, 2015            Decided: June 24, 2015
                                 Docket No. 14-1012-cv
                         ____________________________________

                                    RICKEY L. TOLBERT,

                                                           Plaintiff-Appellant,

                                               —v.—

                 RICHARD SMITH     AND   ROCHESTER CITY SCHOOL DISTRICT,

                                                          Defendants-Appellees.
                         ___________________________________

         Before: LYNCH    AND   CARNEY, Circuit Judges, and KOELTL, District
                                           Judge.*

1          The plaintiff, Rickey Tolbert, appeals from the judgment of

2   the United States District Court for the Western District of New

3   York (Siragusa, J.) dismissing his complaint.               The district

4   court granted summary judgment dismissing the plaintiff’s claims

5   for defamation, discrimination, and hostile work environment, in

6   violation of federal and state anti-discrimination laws and New

7   York State common law.




    *    The Honorable John G. Koeltl, of the United States District
    Court for the Southern District of New York, sitting by
    designation.
 1        We affirm the judgment of the district court in all

 2   respects, except that we vacate the judgment dismissing the

 3   discrimination claims and remand as to those claims for further

 4   proceedings.

 5   ______________

 6   DAVID ROTHENBERG, Greiger and Rothenberg, LLP, for Plaintiff-
 7   Appellant Rickey Tolbert.
 8
 9   MICHAEL E. DAVIS (Edwin Lopez-Soto, General Counsel, on the
10   brief), Rochester City School District, Law Department, for
11   Defendants-Appellees Richard Smith and Rochester City School
12   District.
13
14   ______________

15   John G. Koeltl, District Judge:
16
17        The plaintiff, Rickey Tolbert, is an African-American

18   former teacher at John Marshall High School (“John Marshall”) in

19   the Rochester City School District (the “School District”).    He

20   appeals from a judgment of the United States District Court for

21   the Western District of New York (Siragusa, J.).   The district

22   court granted summary judgment dismissing the plaintiff’s claims

23   of discrimination and hostile work environment under Title VII

24   of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

25   (“Title VII”); the New York State Human Rights Law (“NYSHRL”),

26   N.Y. Exec. Law § 296 et seq.; and 42 U.S.C. § 1981.   The

27   district court also dismissed the plaintiff’s defamation claim.

28        On appeal, Mr. Tolbert contends that he identified

29   sufficient facts to establish a prima facie case of racial

                                       2
 1   discrimination, to show a hostile work environment, and to

 2   support a claim for defamation.    For the reasons explained

 3   below, we affirm the judgment of the district court except with

 4   respect to the discrimination claims, as to which there are

 5   genuine disputes as to material facts that preclude summary

 6   judgment based on Mr. Tolbert’s prima facie case of

 7   discrimination.

 8                                     I.

 9                                     A.

10        Mr. Tolbert was a culinary arts teacher at John Marshall

11   from 2006 to 2009.   He was a non-tenured, probationary teacher,

12   who taught three culinary arts classes a day.

13        Because he was a probationary teacher, Mr. Tolbert’s

14   classes were observed by John Marshall administrators.   The

15   reviewing administrator would then write a “Formal Teacher

16   Observation.”   The Formal Teacher Observation Form includes a

17   space for written comments and also a “Summary of Performance”

18   section that asks the evaluator to check one of five boxes.    The

19   available boxes are “Distinguished,” “Proficient,” “Meets

20   Professional Standards,” “Below Professional Standards,” and

21   “Unsatisfactory.”




                                       3
1            At the end of each school year, Mr. Tolbert also received

 2   an annual evaluation by a John Marshall administrator.1    The

 3   Annual Evaluation Form includes eighteen categories.    The

 4   evaluator is asked to check one of five boxes for each category—

 5   which are the same as those on the Formal Teacher Observation

 6   Form—and provide written comments.     The evaluator must also

 7   provide an “Overall Summary Rating,” again by checking one of

 8   five boxes.

 9           During his second year teaching, Mr. Tolbert consistently

10   received marks of “Proficient” or “Meets Professional Standards”

11   on his evaluations.    Laurel Avery-DeToy, an administrator at

12   John Marshall, conducted Mr. Tolbert’s Formal Teacher

13   Observations and his annual evaluation for the 2007–2008 school

14   year.    Mr. Tolbert has no complaints about these reviews.

15                                     B.

16           Before the start of the 2008–2009 school year, defendant

17   Richard Smith was hired to replace Joseph Munno as the principal

18   of John Marshall.    According to Mr. Tolbert, this is when his

19   employment situation started to sour.

20           Mr. Tolbert alleges that he did not receive a budget to

21   purchase supplies for his classes.     The size of his classes also

22   grew.    In the two previous years, he had around sixteen to


     1
          The evaluations from the 2006-2007 school year were not
     included in the record.
                                        4
 1   eighteen students per class.    In the fall of 2008, each of his

 2   classes had at least twenty-eight students—despite a collective

 3   bargaining agreement provision limiting at least one of his

 4   classes to twenty-four students.       After Mr. Tolbert complained,

 5   the John Marshall administrators eventually reduced the number

 6   of students in his classes.

 7        Mr. Tolbert also claims that many Individualized Education

 8   Plan students were placed in his classes, and he was not given

 9   the assistance of a paraprofessional.      The defendants insist

10   that due to budget cuts, a number of paraprofessional positions

11   were eliminated.   As a result, the Special Education

12   Administrator determined that Mr. Tolbert would not be assigned

13   a paraprofessional for the 2008–2009 school year.      The

14   defendants also note that twenty-three percent of the John

15   Marshall students had Individualized Education Plans.

16        Mr. Tolbert also experienced some problems with the

17   cleanliness and the maintenance of the kitchen in his classroom

18   (known as the “Jurist Room”).   In the fall of 2008, the Monroe

19   County Department of Health and the New York State Department of

20   Health identified various health code violations.      As a result,

21   Principal Smith closed the kitchen.      The parties dispute the

22   cause of these violations.    Mr. Tolbert insists that the

23   janitorial staff did not clean the kitchen regularly, and the



                                        5
 1   defendants contend that Mr. Tolbert and his students were—in

 2   part—at fault.

 3        But these problems were not new.     In December 2007, Mr.

 4   Tolbert complained to school officials that the custodial staff

 5   was not cleaning the kitchen properly.    And in March 2008, the

 6   New York State Department of Health identified a number of

 7   health code violations in the kitchen.

 8                                     C.

 9        Mr. Tolbert also alleges that Principal Smith made racist

10   remarks.   In the fall of 2008, Mr. Tolbert volunteered to cook

11   for a homecoming breakfast.    When discussing what food would be

12   served, Mr. Tolbert alleges that Principal Smith asked him: “Do

13   you only know how to cook black, or can you cook American too?”

14   JA 332.

15        In October 2008, a student in Mr. Tolbert’s class alleges

16   that Principal Smith asked her if she was learning anything from

17   Mr. Tolbert.    In January 2009, during a conversation about

18   reopening the kitchen, Principal Smith asked the same student

19   “how [she] expected to learn if all [she] was learning to cook

20   was black food.”    JA 450.   When asked to define “black food,”

21   Principal Smith allegedly said “that what he meant was American

22   food.”    Id.   And another one of Mr. Tolbert’s students alleges

23   that in January or February of 2009, Principal Smith told her



                                        6
 1   that “black kids can’t learn in a cooking class because all they

 2   want to do is eat.”     JA 453.

 3          At some point, Principal Smith and Mr. Tolbert both

 4   inspected Mr. Tolbert’s classroom.      Mr. Tolbert claims that he

 5   showed Principal Smith areas in the classroom that had not been

 6   cleaned by the janitorial staff, and Principal Smith remarked

 7   that “the kids we get to this school are not from much better

 8   than this.”   JA 335.   Because of the demographics of the John

 9   Marshall student body, Mr. Tolbert interpreted this comment as a

10   reference to the students’ race.       And in the beginning of the

11   2008–2009 school year, Barbara Postell, then a counselor at John

12   Marshall, asserts that Principal Smith—when referring to John

13   Marshall students—stated that “my friends, they are not like

14   us.”   JA 457.   Ms. Postell interpreted this as a comment about

15   the students’ race.     Principal Smith denies making any of these

16   statements.

17          Mr. Tolbert also claims that Principal Smith told him and

18   his students that the Monroe County Department of Health had

19   closed the kitchen in Mr. Tolbert’s classroom.      That statement,

20   according to Mr. Tolbert, was incorrect; Principal Smith had

21   closed the kitchen.




                                        7
 1                                   D.

 2        Mr. Tolbert received three Formal Teacher Evaluations

 3   during the 2008–2009 school year.      In November 2008, Ms. Avery-

 4   DeToy observed one of Mr. Tolbert’s classes and submitted a

 5   lengthy and negative evaluation.       She rated his performance as

 6   “Unsatisfactory,” the lowest of the five options.

 7        In December 2008, Anthony Bianchi observed one of Mr.

 8   Tolbert’s classes and concluded that Mr. Tolbert had met

 9   professional standards.   In March 2009, Mr. Tolbert requested

10   that someone other than Ms. Avery-DeToy conduct his next

11   evaluation, and Principal Smith assigned the review to Jason

12   Muhammad.   After observing an April 6, 2009, class, Mr. Muhammad

13   concluded that Mr. Tolbert had met professional standards.

14        In March 2009, the “Administrative Team” at John Marshall

15   sent a memorandum to the teaching staff.      The memo discussed

16   year-end evaluations and identified which administrator would

17   review each teacher.   According to the memo, Mr. Muhammad would

18   conduct Mr. Tolbert’s annual evaluation.      But Principal Smith

19   later reassigned the evaluation to Ms. Avery-DeToy, the only

20   administrator who had previously rated Mr. Tolbert’s performance

21   as “Unsatisfactory.”   Mr. Tolbert claims that he received no

22   notice of the reassignment.

23        Mr. Tolbert’s annual evaluation was not positive.       For

24   twelve of the eighteen categories, Ms. Avery-DeToy described Mr.

                                        8
 1   Tolbert’s teaching as “Below Professional Standards.”      For the

 2   remaining six categories, Mr. Tolbert received marks of “Meets

 3   Professional Standards.”    The Overall Summary Rating was “Below

 4   Professional Standards.”    The comment sections noted that Mr.

 5   Tolbert had shown some growth, but expressed concern about his

 6   teaching strategy, professional development, and lack of

 7   involvement with his students’ parents.     In the end, Ms. Avery-

 8   DeToy recommended denying Mr. Tolbert tenure.

 9           Principal Smith agreed, but he recommended that Mr. Tolbert

10   receive a fourth year of probation.     Principal Smith declared

11   that he made this decision “[b]ased on Tolbert’s observations

12   throughout 2008–2009, his final evaluation and my own

13   observations of his performance.”      JA 45.   Principal Smith and

14   Ms. Avery-DeToy informed Mr. Tolbert of the decision in April

15   2009.

16           Mr. Tolbert refused the fourth-year-probation offer.

17   Accordingly, a recommendation against granting Mr. Tolbert

18   tenure was forwarded to the Rochester City School Board.

19   Although the School Board did not approve the denial of tenure,

20   Superintendent Jean-Claude Brizard made a “final decision” to

21   deny tenure.    Superintendent Brizard testified that his decision

22   was based on Principal Smith’s recommendation and the reviews of

23   Mr. Tolbert from “the last year and part before that.”      JA 260.



                                        9
 1        By a letter dated August 31, 2009, the School District

 2   informed Mr. Tolbert that he would not receive tenure.     The

 3   School District again offered Mr. Tolbert a fourth year of

 4   probation, which he refused.

 5                                  E.

 6        Mr. Tolbert filed his original complaint in November 2009.

 7   After an amendment, the complaint alleged a claim for racial

 8   discrimination arising under 42 U.S.C. § 1981 and a claim for

 9   defamation against Principal Smith.   Against the School

10   District, the plaintiff alleged that he was subjected to

11   discrimination and a hostile work environment because of his

12   race, in violation of Title VII and the NYSHRL.2

13        The defendants filed a motion for summary judgment on all

14   claims, which the district court granted.   The district court

15   dismissed the discrimination claims because it found that Mr.

16   Tolbert had failed to establish a prima facie case of

17   discrimination because he had not suffered an adverse employment

18   action and had failed to raise an inference of discrimination.


     2
          The defendants suggest, without elaboration, that the
     plaintiff did not timely exhaust his administrative remedies
     before the Equal Employment Opportunity Commission with respect
     to his Title VII claims. The defendants do not explain this
     argument in their brief. The district court noted that an
     argument of non-exhaustion had been raised but never decided it.
     Therefore, we do not reach the issue of non-exhaustion and any
     appropriate argument of non-exhaustion can be addressed on
     remand.

                                    10
 1   It dismissed the hostile work environment claims because it

 2   concluded that the alleged hostility was not a result of Mr.

 3   Tolbert’s race and was not sufficiently severe.   And the

 4   district court dismissed the defamation claim because the

 5   complaint failed to allege when or to whom the defamatory

 6   statements were made.

 7        Mr. Tolbert timely appealed.

 8                                   II.

 9        We have jurisdiction pursuant to 28 U.S.C. § 1291, and the

10   district court had jurisdiction pursuant to 28 U.S.C. §§ 1331

11   and 1367.

12        We review a grant of summary judgment de novo, Velazco v.

13   Columbus Citizens Found., 778 F.3d 409, 410 (2d Cir. 2015) (per

14   curiam), and may affirm on any basis that finds support in the

15   record.   Mauro v. S. New England Telecomms., Inc., 208 F.3d 384,

16   387 n.2 (2d Cir. 2000) (per curiam).   Summary judgment is

17   appropriate when “there is no genuine dispute as to any material

18   fact and the movant is entitled to judgment as a matter of law.”

19   Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S.

20   317, 322 (1986).   In determining whether summary judgment is

21   appropriate, we must resolve all ambiguities and draw all

22   reasonable inferences against the moving party.   See Matsushita

23   Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

24   (1986).

                                     11
 1        This Court has “repeatedly expressed the need for caution

 2   about granting summary judgment to an employer in a

 3   discrimination case where, as here, the merits turn on a dispute

 4   as to the employer’s intent.”   Holcomb v. Iona Coll., 521 F.3d

 5   130, 137 (2d Cir. 2008).    At the same time, we have also made it

 6   clear that “the salutary purposes of summary judgment—avoiding

 7   protracted and harassing trials—apply no less to discrimination

 8   cases than to . . . other areas of litigation.”   Weinstock v.

 9   Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (internal

10   quotation marks omitted).

11                                   III.

12        Mr. Tolbert alleged a racial discrimination claim against

13   Principal Smith under § 1981, and a racial discrimination claim

14   against the School District under Title VII and the NYSHRL.     The

15   Title VII, § 1981, and NYSHRL discrimination claims are governed

16   at the summary judgment stage by the burden-shifting analysis

17   first established in McDonnell Douglas Corp. v. Green, 411 U.S.

18   792, 802–04 (1973).   See Brown v. City of Syracuse, 673 F.3d

19   141, 150 (2d Cir. 2012).    Although the § 1981 claim is against

20   Principal Smith and the Title VII and NYSHRL claims are against

21   the School District, the analysis is the same.3   The claims

22   against both defendants turn on Principal Smith’s conduct.4


     3
          Section 1981 provides for individual liability. Whidbee v.
     Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir.
                                      12
 1        Under the McDonnell Douglas framework, Mr. Tolbert bears

 2   the burden of establishing a prima facie case of discrimination

 3   by showing “(1) he belonged to a protected class; (2) he was

 4   qualified for the position he held; (3) he suffered an adverse

 5   employment action; and (4) that the adverse employment action

 6   occurred under circumstances giving rise to an inference of

 7   discriminatory intent.”   Brown, 673 F.3d at 150 (internal

 8   quotation marks omitted).   “The requirement is neither onerous

 9   nor intended to be rigid, mechanized or ritualistic.”   Abdu-

10   Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir.

11   2001) (internal citations and quotation marks omitted).

12        There is no disagreement that as an African American, Mr.

13   Tolbert is a member of a protected class.   Nor do the defendants

14   question Mr. Tolbert’s qualifications.   The defendants, however,

15   argue that Mr. Tolbert did not suffer an adverse employment



     2000). Title VII does not. Spiegel v. Schulmann, 604 F.3d 72,
     79 (2d Cir. 2010) (per curiam). The NYSHRL provides for
     individual liability under an aiding-and-abetting theory, see
     Feingold v. New York, 366 F.3d 138, 157–58 (2d Cir. 2004), but
     the plaintiff made no such claim against Principal Smith.
     4
          Although Superintendent Brizard made the ultimate tenure
     decision, he relied on Principal Smith’s recommendation. And
     “the impermissible bias of a single individual at any stage of
     the promoting process may taint the ultimate employment decision
     in violation of Title VII. This is true even absent evidence of
     illegitimate bias on the part of the ultimate decision maker, so
     long as the individual shown to have the impermissible bias
     played a meaningful role in the promotion process.” Bickerstaff
     v. Vassar Coll., 196 F.3d 435, 450 (2d Cir. 1999) (internal
     citation omitted).
                                     13
 1   action and that there is no evidence giving rise to an inference

 2   of discrimination.   We disagree.

 3                                   A.

 4        An employee suffers an “adverse employment action” if he

 5   “endures a materially adverse change in the terms and conditions

 6   of employment.   An adverse employment action is one which is

 7   more disruptive than a mere inconvenience or an alteration of

 8   job responsibilities.”   Joseph v. Leavitt, 465 F.3d 87, 90 (2d

 9   Cir. 2006) (internal citation and quotation marks omitted).

10   Denying Mr. Tolbert tenure and extending his probation was an

11   adverse employment action.

12        In New York, teachers serve a three-year probationary

13   period.   Then it is usually up or out: the teacher either

14   receives tenure or is terminated.    But, as here, school

15   districts may extend the probationary term for one year and

16   postpone the tenure decision.   See Borkowski v. Valley Cent.

17   Sch. Dist., 63 F.3d 131, 134 (2d Cir. 1995).

18        This Court has held or assumed that the denial of tenure is

19   an adverse employment action under Title VII and other

20   employment statutes.   See, e.g., Donnelly v. Greenburgh Cent.

21   Sch. Dist. No. 7, 691 F.3d 134, 147 (2d Cir. 2012) (Family

22   Medical Leave Act retaliation); Leibowitz v. Cornell Univ., 445

23   F.3d 586, 591–92 (2d Cir. 2006) (per curiam) (Title VII and the

24   Age Discrimination in Employment Act); Back v. Hastings On

                                     14
 1   Hudson Union Free Sch. Dist., 365 F.3d 107, 113, 123–26 (2d Cir.

 2   2004) (42 U.S.C. § 1983); Zahorik v. Cornell Univ., 729 F.2d 85,

 3   93 (2d Cir. 1984) (Title VII); see also Okruhlik v. Univ. of

 4   Ark., 395 F.3d 872, 879 (8th Cir. 2005) (Title VII and § 1983).

 5   This makes sense.   Tenure is a material condition of employment

 6   because it provides long-term job security.   See Mt. Healthy

 7   City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286 (1977)

 8   (“The long-term consequences of an award of tenure are of great

 9   moment both to the employee and to the employer.”).5

10        But the defendants insist that this case is different

11   because Mr. Tolbert was offered a fourth year of probationary

12   employment.   According to the defendants, Mr. Tolbert’s

13   employment situation would have been no worse had he accepted

14   the offer.

15        The defendants ignore the fact that the offer of a fourth

16   year of probation was intertwined with the denial of tenure.

17   Had the plaintiff received tenure, he could have been terminated

18   only for cause.   But had he remained a probationary teacher, he

19   could have been terminated for any lawful reason.   N.Y. Educ.

     5
          In the context of university tenure decisions, “a prima
     facie case that a member of a protected class is qualified for
     tenure is made out by a showing that some significant portion of
     the departmental faculty, referrants or other scholars in the
     particular field hold a favorable view on the question.”
     Zahorik, 729 F.2d at 93–94. That requirement does not apply to
     a prima facie case for an elementary or high school teacher.
     Donnelly, 691 F.3d at 151.

                                     15
 1   Law §§ 2573(1)(a), 2573(5)(a), 3020-a.   The denial of tenure

 2   therefore was the denial of a material improvement in the

 3   conditions of the plaintiff’s employment.

 4        Title VII prohibits “discriminat[ion] against any

 5   individual with respect to his compensation, terms, conditions,

 6   or privileges of employment,” § 2000e-2(a)(1), the NYSHRL

 7   similarly prohibits employers from “discriminat[ing] against

 8   such individual in compensation or in terms, conditions or

 9   privileges of employment,” N.Y. Exec. Law § 296(1)(a), and

10   § 1981 provides that all “persons . . . shall have the same

11   right . . . to make and enforce contracts . . . as is enjoyed by

12   white citizens,” § 1981(a).   Refusing to award a contract or a

13   material employment benefit for a discriminatory reason violates

14   those statutes.   See, e.g., Zahorik, 729 F.2d at 93 (“Tenure

15   decisions are not exempt under Title VII, . . . and plaintiffs

16   seeking to show that forbidden purposes lurk in a tenure

17   decision have available methods of challenging such decisions.”)

18        Indeed, were we to accept the defendants’ interpretation,

19   then failure to promote claims—or any claims alleging the denial

20   of an employment benefit—would be non-actionable.   And that

21   cannot be the case.   “A benefit that is part and parcel of the

22   employment relationship may not be doled out in a discriminatory

23   fashion, even if the employer would be free under the employment



                                     16
 1   contract simply not to provide the benefit at all.”   Hishon v.

 2   King & Spalding, 467 U.S. 69, 75 (1984).6

 3        Extending an employment relationship by one year by itself

 4   may not qualify as an adverse employment action.   But when

 5   coupled with the denial of tenure, it is assuredly an adverse

 6   employment action.   During the fourth year of probationary

 7   employment, a teacher can be fired at any time for any lawful

 8   reason.   N.Y. Educ. Law § 2573(1)(a).   But if granted tenure,

 9   the teacher may be fired only for cause.    Id. §§ 2573(5)(a),

10   3020-a.   The denial of tenure after three years, when a teacher

11   was otherwise eligible for tenure, does not become any less an

12   adverse action because the teacher is provided with another year

13   of probationary employment.

14        Of course, a school district may defer a decision on tenure

15   and obtain another year’s experience with a teacher, provided

16   that the decision is not made for an unlawful reason such as

17   racial discrimination.   But the denial of tenure after three

18   years cannot lawfully be based on a discriminatory reason, even

19   if the teacher remains employed as a probationary teacher.    The

     6
          Douglass v. Rochester City School District, 522 F. App’x 5
     (2d Cir. 2013), an unpublished disposition upon which the
     defendants rely, is not to the contrary. In that case, the
     Court held that a fourth-year extension of probation did not
     place the plaintiff “in any worse employment position than she
     would have been in absent the offer.” Id. at 9. However, this
     Court was careful to explain that the plaintiff did not “assert
     a claim for discriminatory denial of tenure.” Id. at 9 n.1.
     Mr. Tolbert asserts that claim here.
                                     17
 1   plaintiff alleges that is precisely what occurred here, and that

 2   is a sufficient allegation of an adverse action.

 3                                  B.

 4        The defendants next contend that Mr. Tolbert did not

 5   identify facts giving rise to an inference of discrimination.

 6        Mr. Tolbert identified racially offensive comments

 7   allegedly made by Principal Smith, two of which concerned Mr.

 8   Tolbert’s qualifications as a teacher.    According to Mr.

 9   Tolbert, in the fall of 2008, Principal Smith asked him: “Do you

10   only know how to cook black, or can you cook American too?”    One

11   of Mr. Tolbert’s students declared that in January 2009,

12   Principal Smith asked her “how [she] expected to learn if all

13   [she] was learning to cook was black food.”    JA 450.   Another

14   student declared that in January or February of 2009, Principal

15   Smith told her that “black kids can’t learn in a cooking class

16   because all they want to do is eat.”7    JA 453.


     7
          As the district court found, the other evidence cited by
     the plaintiff does not raise an inference of discrimination.
     Reverend Willie Harvey and Barbara Postell declared that Malik
     Evans told them that Principal Smith was racist, but Reverend
     Harvey’s and Ms. Postell’s testimony would be inadmissible
     hearsay if offered at trial. Finnegan v. Bd. of Educ., 30 F.3d
     273, 274 (2d Cir. 1994) (per curiam) (explaining that “double
     hearsay” cannot “create a genuine issue to be tried”); see also
     Fed. R. Civ. P. 56(c)(2). Cynthia Elliott’s testimony that she
     “believe[d]” Principal Smith’s decision to deny tenure “was
     based on race” is mere speculation. JA 264; see Bickerstaff v.
     Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999) (noting that
     courts must “carefully distinguish between evidence that allows
     for a reasonable inference of discrimination and evidence that
                                    18
 1        When responding to Mr. Tolbert’s discrimination claims, the

 2   defendants did not discuss any of these remarks in their briefs

 3   to this Court or in their briefs before the district court.    The

 4   district court nonetheless found that Principal Smith’s “stray

 5   remarks” were “too attenuated” from the tenure decision and not

 6   probative of Principal Smith’s intent.    Tolbert v. Smith, No.

 7   09cv6579, 2014 WL 906158, at *15–16 (W.D.N.Y. Mar. 7, 2014).

 8        “[T]he more remote and oblique the remarks are in relation

 9   to the employer’s adverse action, the less they prove that the

10   action was motivated by discrimination.”   Tomassi v. Insignia

11   Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007), abrogated on

12   other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,

13   177–78 (2009).   But there is no bright-line rule for when

14   remarks become “too attenuated” to be significant to a

15   determination of discriminatory intent.

16        In April 2009, Principal Smith and Ms. Avery-DeToy told Mr.

17   Tolbert that he would not receive tenure, and the two “black

18   food” remarks concerning Mr. Tolbert were made in the fall of



     gives rise to mere speculation and conjecture”). And Allen
     Williams’s testimony that Superintendent Brizard said that there
     was a problem with Principal Smith is inadmissible hearsay and
     does not raise an inference of discrimination. Ms. Postell
     thought that she was also the victim of discrimination and filed
     a complaint with the Employment Equal Opportunity Commission.
     But the complaint was found to be without merit, and the
     district court here fairly concluded that it had “little
     probative value.” Tolbert v. Smith, No. 09cv6579, 2014 WL
     906158, at *7 (W.D.N.Y. Mar. 7, 2014).
                                     19
 1   2008 and in January 2009.   The remarks all occurred during a

 2   single school year, and one occurred within three months of

 3   Principal Smith’s decision to recommend that Mr. Tolbert be

 4   denied tenure.   A third alleged remark in January or February

 5   2009 attributed to Principal Smith also reflected racial bias.

 6   None of the remarks was so attenuated that it should be ignored.

 7        Moreover, the remarks were made by the de facto

 8   decisionmaker, the remarks clearly suggest racial bias, and two

 9   of the comments were about Tolbert’s qualifications as a

10   teacher.   And Principal Smith’s comment to a student that “black

11   kids can’t learn in a cooking class because all they want to do

12   is eat,” JA 453, could be viewed as evidence of a discriminatory

13   intent on Principal Smith’s part in dismantling John Marshall’s

14   culinary arts program.   The fate of that program, for which Mr.

15   Tolbert was the only teacher at John Marshall, was directly

16   relevant to the decision whether to grant him tenure.    See Henry

17   v. Wyeth Pharm., Inc., 616 F.3d 134, 149–50 (2d Cir. 2010)

18   (noting factors that district courts consider when determining

19   if a remark is probative of discriminatory intent).8    But the

20   district court appeared to find that because the formal

21   evaluations did not refer to Mr. Tolbert’s race, there was no



     8
          The two other allegedly racist remarks by Principal Smith—
     that the students “are not from much better than this” and that
     “they are not like us”—are less probative.
                                     20
 1   “nexus” between the decision to deny tenure and Principal

 2   Smith’s remarks.   Tolbert, 2014 WL 906158, at *16.

 3        Employers are unlikely to leave a “smoking gun” admitting a

 4   discriminatory motive.    See, e.g., Chambers v. TRM Copy Ctrs.

 5   Corp., 43 F.3d 29, 37 (2d Cir. 1994).   And such evidence is not

 6   required to make a prima facie case of discrimination.      Luciano

 7   v. Olsten Corp., 110 F.3d 210, 215 (2d Cir. 1997).    The

 8   plaintiff need not show that Principal Smith declared that the

 9   tenure decision was tied to the plaintiff’s race.     Statements

10   showing an employer’s racial bias, which Mr. Tolbert identified,

11   are sufficient to support a prima facie case of discrimination.

12   See id.

13        Moreover, there is a factual dispute as to whether

14   Principal Smith followed regular procedures when he evaluated

15   Mr. Tolbert for tenure.   “Departures from procedural regularity,

16   such as a failure to collect all available evidence, can raise a

17   question as to the good faith of the process where the departure

18   may reasonably affect the decision.”    Zahorik, 729 F.2d at 93.

19        The plaintiff submitted evidence that Principal Smith

20   changed the person who conducted Mr. Tolbert’s year-end

21   evaluation without providing notice to Mr. Tolbert,9 that


     9
          While the defendants assert that Mr. Tolbert’s evaluation
     was reassigned because Mr. Muhammad was having difficulty
     completing his evaluations on time, it is for a jury to decide
     whether that explanation is credible and rebuts any inference of
                                      21
 1   Principal Smith relied on the 2008–2009 evaluations in

 2   isolation, and that the unsatisfactory performance reviews by

 3   Ms. Avery-DeToy were aberrational.   These irregularities, when

 4   combined with Principal Smith’s alleged remarks, are sufficient

 5   to establish a prima facie case of discrimination.   See Back,

 6   365 F.3d at 124–25 (finding sexist remarks and procedural

 7   irregularities sufficient to rebut a nondiscriminatory reason

 8   for denying tenure).

 9        There was no argument in the district court or before us

10   that summary judgment should be granted at the second or third

11   stages of the McDonnell Douglas analysis.   Therefore, because we

12   conclude that Mr. Tolbert met his initial burden of establishing

13   a prima facie case of discrimination, we vacate and remand with

14   respect to the § 1981, Title VII, and NYSHRL discrimination

15   claims.




     discrimination that could be drawn from the alleged procedural
     irregularity.
                                    22
 1                                   IV.

 2        We next consider whether the district court erred by

 3   granting summary judgment dismissing the hostile work

 4   environment and defamation claims.    We conclude that it did not.

 5                                   A.

 6        Mr. Tolbert asserted hostile work environment claims

7    against the School District under Title VII and the NYSHRL.10

8    Hostile work environment claims under Title VII and the NYSHRL

 9   are governed by the same standard.    Summa v. Hofstra Univ., 708

10   F.3d 115, 123–24 (2d Cir. 2013).     To establish a prima facie

11   case of hostile work environment, the plaintiff must show that

12   the discriminatory harassment was “sufficiently severe or

13   pervasive to alter the conditions of the victim’s employment and

14   create an abusive working environment,” and “that a specific

15   basis exists for imputing” the objectionable conduct to the

16   employer.   Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d

17   Cir. 1997) (internal quotation marks omitted).    It is axiomatic

18   that the plaintiff also must show that the hostile conduct

19   occurred because of a protected characteristic.    Alfano v.

20   Costello, 294 F.3d 365, 374 (2d Cir. 2002).



     10
          A hostile work environment claim may be brought against an
     individual pursuant to § 1981. Turley v. ISG Lackawanna, Inc.,
     774 F.3d 140, 151 n.6 (2d Cir. 2014). But the complaint asserts
     no such claim.

                                     23
 1        Mr. Tolbert failed to identify sufficient material facts

 2   showing that his work environment was objectively hostile and

 3   abusive.    “As a general rule, incidents must be more than

 4   ‘episodic; they must be sufficiently continuous and concerted in

 5   order to be deemed pervasive.’    Isolated acts, unless very

 6   serious, do not meet the threshold of severity or

 7   pervasiveness.”   Id. at 374 (internal citation omitted) (quoting

 8   Perry, 115 F.3d at 149).

 9        Mr. Tolbert alleges that Principal Smith made two offensive

10   statements in his presence.   Only one—the remark regarding

11   “black food”—necessarily concerns race.   The other remark—that

12   the students were “not from much better than this”—is ambiguous.

13   And whatever the meaning of the remarks, they do not qualify as

14   “a steady barrage of opprobrious racial comments” that altered

15   the conditions of Mr. Tolbert’s employment.   Schwapp v. Town of

16   Avon, 118 F.3d 106, 110 (2d Cir. 1997) (internal quotation marks

17   omitted).

18        Nor do the other alleged instances of hostility support a

19   hostile work environment claim.    Mr. Tolbert complains that he

20   did not receive a budget.   But Principal Smith did not give a

21   lump-sum budget to any teacher; he instead requested that each

22   teacher submit a request for supplies.

23        Mr. Tolbert contends that he lost the assistance of a

24   paraprofessional.   But the Special Education Administrator made

                                       24
 1   that decision because of budget cuts.   And there is no evidence

 2   that the Special Education Administrator’s decision was a

 3   product of racial animus.

 4        More students were placed in Mr. Tolbert’s classes for the

 5   2008–2009 school year than in the previous two years.   But after

 6   Mr. Tolbert protested, the class sizes were reduced.    And there

 7   is no evidence that Principal Smith—or anyone with a

 8   discriminatory motive—initially assigned an excessive number of

 9   students to Mr. Tolbert’s classes.

10        Finally, Mr. Tolbert alleges that the janitorial staff did

11   not properly clean his classroom.    But Mr. Tolbert’s problems

12   with the janitorial staff predated Principal Smith’s arrival,

13   and there is no evidence that the janitorial staff acted out of

14   animus or at the direction of Principal Smith.

15        Accordingly, we affirm the dismissal of the hostile work

16   environment claims.

17                                  B.

18        Mr. Tolbert next contends that the district court erred in

19   dismissing the defamation claim against Principal Smith.    The

20   amended complaint identifies four defamatory statements, but Mr.

21   Tolbert discusses one on appeal.    He alleges that Principal

22   Smith told Mr. Tolbert’s students that the Monroe County

23   Department of Health had closed the kitchen in Mr. Tolbert’s



                                    25
 1   classroom.    That statement, according to Mr. Tolbert, was

 2   incorrect; Principal Smith closed the kitchen.

 3        A slanderous statement, by definition, must be false.     “But

 4   in defamation law, as in life, determinations of fact and

 5   fiction are not zero-sum.    In New York, a statement need not be

 6   completely true, but can be substantially true, as when the

 7   overall ‘gist or substance of the challenged statement’ is

 8   true.”   Chau v. Lewis, 771 F.3d 118, 129 (2d Cir. 2014) (quoting

 9   Printers II, Inc. v. Prof’ls Publ’g, Inc., 784 F.2d 141, 146–47

10   (2d Cir. 1986)); see also Kraus v. Brandstetter, 562 N.Y.S.2d

11   127, 130 (App. Div. 1990).

12        Principal Smith’s statement was substantially true.      In the

13   fall of 2008, Principal Smith closed the kitchen after the

14   Monroe County Department of Health had identified a number of

15   sanitation problems.   A Monroe County Department of Health

16   Inspection Report Observation stated that in order for the

17   kitchen to reopen, it needed to be reinspected.   Although

18   Principal Smith had “closed” the kitchen, the Monroe County

19   Department of Health prohibited its reopening without an

20   inspection.   “Prevented reopening” is substantially similar to

21   “closed.”

22        Accordingly, we affirm the dismissal of Mr. Tolbert’s

23   defamation claim.



                                      26
1                               CONCLUSION
2        We have considered all of the arguments of the parties.   To

3   the extent not specifically addressed above, they are either

4   moot or without merit.   For the reasons explained above, we

5   AFFIRM the judgment of the district court dismissing all claims,

6   except that we VACATE the judgment of the district court

7   dismissing the discrimination claims.    The case is REMANDED for

8   further proceedings consistent with this opinion.




                                    27
