Full opinion text
MEMORANDUM, ORDER, & JUDGMENT JACK B. WEINSTEIN, Senior District Judge: I. Introduction..............................................................234 II. Facts....................................................................235 A. Parties..............................................................235 B. Sotomayor’s Initial Employment with the DOE...........................235 C. Initial Tenure at the School of International Studies.......................236 D. 2007-2008 School Year................................................237 1. SLT Meeting............................'.........................237 2. SAVE Room Incident..............................................237 3. Classroom Observations............................................238 4. Tentative Class Assignments for 2008-2009 School Year................238 5. First FMLA Leave................................................238 E. 2008-2009 School Year................................................239 1. Change in Class Assignment........................................239 2. Classroom Observations............................................239 3. Concerns About Record Keeping....................................241 4. Unsatisfactory Rating.............................................241 5. Second FMLA Leave..............................................242 F. 2009-2010 School Year................................................242 G. 2010-2011 School Year..................:.............................242 1. Class Assignment.................................................242 2. Classroom Observations............................................242 3. Failure to Pay for Prep Period. ....................................243 H. 2011-2012 School Year................................................244 1. Initial Class Assignment.................................... 244 2. Plaintiff Initially Excessed .........................................244 3. Plaintiffs Assignments for the 2011-2012 Year........................244 4. Loss of “Per Session” Position......................................245 I. Current Employment.................................................245 J. Evidence of Animus...................................................245 1. School Composition................................................245 2. Differential Treatment of Plaintiff...................................245 ■ 3. Discriminatory Comments..........................................245 4. Differential Treatment of Others....................................246 III. Procedural History........................................................248 IV. Summary Judgment Standard..............................................248 V. Claims Against City Are Dismissed .........................................248 VI. Statute of Limitations for NYSHRL and NYCHRL Claims.....................248 A. One Year Statute of Limitations Applies to Claims Against the DOE.....248 B. Time Bar Only Applies to NYSHRL Claims Against DOE .................249 1. NYSHRL Discrimination Claims Against DOE Time Barred............250 2. NYCHRL Claims Against DOE Timely..............................250 3. NYSHRL Harassment Claim Against DOE Timely....................251 VII. All Discrimination and Retaliation Claims Apply McDonnell Douglas Burden Shifting Framework.....................................................251 VIII. Federal Discrimination Claims Meritless.....................................252 A. Requirements of a Prima Facie Case....................................253 1. Protected Class...................................................253 2. Adverse Employment Action .......................................253 3. Satisfactory Performance ..........................................253 4. Inference of Discrimination.........................................254 B. No Prima Facie Case .................................................254 1. Classroom Observations and Unsatisfactory Evaluations ...............254 2. Letters to File....................................................255 3. Teaching Preferences..............................................255 4. Teaching Load....................................................255 5. Room Assignment.................................................256 6. Excessing........................'................................256 7. “Per Session” Employment and Failure to Pay for Test Administration..................................................256 8. Claims Dismissed.................................................257 IX. State Discrimination Law..................................................257 X. City Discrimination Law...................................................257 A. More Liberal Standard Applies.........................................257 B. Plaintiff Can Establish a Prima Facie Case Under City Law as to Observations, Evaluations, and Letters to File..........................258 C. Legitimate, Non-Discriminatory Reasons................................258 D. No Evidence of Pretext................................................259 XI. Hostile Work Environment Claims Are Meritless .............................260 A. Federal and State Law................................................260 B. City Law............................................................261 C. Plaintiff Cannot Show Discrimination....................................261 XII. No Prima Facie Case of Retaliation Under Title VII, ADEA, NYSHRL, or NYCHRL .............................................................261 XIII. FMLA Retaliation Claim Fails..............................................262 XIV. Conclusion...............................................................263 I. Introduction This is one of a growing number of cases where teachers are subject to more frequent and intense classroom observation, checks, directions, and suggestions in an attempt to raise the quality of teaching. Whether the effect here was improvement of teaching quality — or, as plaintiff claims, unnecessary discriminatory and counterproductive stress on a devoted teacher — is not decided. The educational policy involved and its execution have not violated this teacher’s rights under federal, New York state, or New York City law. Beginning in the 2007-2008 school year, plaintiff Gladys Sotomayor, a New York City public school teacher, among other allegedly adverse actions, received increasingly frequent classroom observations, and was given negative performance evaluations and adverse letters in her file, by her supervisors, Principal Fred Walsh (“Walsh”) and Assistant Principal Jeanette Smith (“Smith”). Defendants insist that Sotomayor was an underperforming teacher who needed this help, critique, and extra supervision. Sotomayor, a Hispanic-American woman over fifty, claims that these actions were the product of age, race, and national origin discrimination. Plaintiff sues Walsh and Smith, as well as her employer, the New York City Department of Education (“DOE”) and the City of New York (“City”), alleging discrimination, retaliation, and hostile work environment claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. 621 et seq.; Section 1983 of the Civil Rights Act of 1866 (“Section 1983”), 42 U.S.C. § 1983; the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq. See Compl. ¶¶ 42-118, Doc. Entry 1, July 26, 2010 (“Compl.”). She also claims that defendants retaliated against her for exercising her rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. See Compl. ¶¶ 119-123. Defendants move for summary judgment on various grounds. Their motion is granted. The City is dismissed as an improper party. Sotomayor’s claims under federal, state, and city law against the remaining defendants are dismissed as without legal bqsis. She was not treated differently from similarly situated employees because of her age, race, or national origin. II. Facts A. Parties Plaintiff, who identifies herself as a non-Caucasian Hispanic, was born on September 6, 1957. See Compl. ¶ 22. She is a resident of Brooklyn. Id. ¶ 15. Defendant Fred Walsh was born on April 20, 1967. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. C 31:11-12 (Dep. of Fred Walsh), Doc. Entry 36, Feb. 29, 2012 (‘Walsh Dep.”). Beginning in the fall of 2004, Walsh was the principal at the School of International Studies in Brooklyn. Compl. ¶ 18. Jeanette Smith was born on June 16, 1969. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. D 12:24 (Dep. of Jeanette Smith), Doc. Entry 36, Feb. 29, 2012 (“Smith Dep.”). During the relevant period, she was an Assistant Principal at the School of International Studies. Compl. ¶ 19. Both Walsh and Smith are Caucasian. Id. ¶ 19. All three individuals are employees of the DOE, an agency of the City of New York. See Compl. ¶ 17. B. Sotomayor’s Initial Employment with the DOE Plaintiff began working for the DOE in August 1999. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. B 43:23 (Dep. of Gladys Sotomayor), Doc. Entry 36, Feb. 29, 20.12 (“Pl.’s Dep.”). She was initially hired as a substitute second grade teacher at P.S. 67. Id. 46:4-24. In September 2002, Sotomayor transferred to the Secondary School for Law, Research and Journalism, where she was assigned to teach sixth through eighth grade Spanish. Id. 49:13-16, 51:3-5. An Observation Report dated April 19, 2002 rated her lesson satisfactory overall, but highlighted as areas of improvement the “timing and pacing” of the lesson and the failure to “provide a multitude of varied activities so that student may explore the concept in question,” to “maintain a clean area, for students to work,” and to display student work in the classroom. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. F (April 19, 2002 Observation Report), Doc. Entry 36, Feb. 29, 2012. Plaintiff was “excessed” in the summer of 2003, requiring her to find a new position in another school. Id. 52:19-53:10. It is unclear from the record why she.was excessed. C. Initial Tenure at the School of International Studies In the fall of 2003, she began working at the School of International Studies, teaching sixth grade students in an inclusion bridge program. Id. 55:2-t25. Sixth-to twelfth-grade students attend the School of International Studies. Walsh Dep. 6:20-22. When the bridge program was discontinued the following year, Sotomayor was hired to teach middle school and high school Spanish beginning in 2004. PL’s Dep. 63:7-64:5. The interview team that hired her included defendant Walsh, who was then an assistant principal. Id. From the 2004-2005 to the 2006-2007 school year, Sotomayor taught middle school and high school Spanish. Id at 63:2-4; 70:10-12; • 74:24-75:2. In the 2006-2007 school year, plaintiff was also assigned to the SAVE room, the designated classroom for students who have been removed from their classrooms for disciplinary infractions or given an in-school suspension. PL’s Dep. 74:24-75:2. In, this period, Walsh observed the plaintiff approximately once per year, and took the following actions: • In April 2005, Walsh rated her lesson as overall satisfactory, but recommended that plaintiff needed to “take a more pro-active approach to classroom and time management” and to “work to create a more structured and productive classroom culture.” Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. I (Apr. 11, 2005 Report on Observation), Doc. Entry 36, Feb. 29, 2012. • In November 2006, Walsh noted that the plaintiff was “inconsistent” in ensuring that the lesson’s objective was “explicitly stated or referred to by the teacher” and in maintaining the classroom environment in proper fashion. He also noted that her lesson did not have closure and did not take into account students’ varied learning styles, and that no student work was on display. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. L (Nov. 21, 2006 Report on Observation), Doc. Entry 36, Feb. 29, 2012. Walsh nevertheless wrote Sotomayor a letter recommending her for participation in the DOE’s Aspiring Leadership Cohort Program. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. H (March 23, 2005 Letter), Doc. Entry 36, Feb. 29, 2012. Sotomayor also received feedback from other administrators regarding the need to submit substitute lesson plans: • In November 2004, Assistant Principal Caroline Garrett, who was then plaintiffs supervisor, advised Soto-mayor that she had not yet submitted substitute lesson plans as she was required to do. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. G (Nov. 29, 2004 Letter), Doc. Entry 36, Feb. 29, 2012. Plaintiff argues that the letter was factually incorrect. Pl.’s Dep. 143:15-144:16. • In January 2006, Assistant Principal Judith Willoughby advised Sotomayor that her lesson plans were overdue despite two verbal reminders. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. K (Jan. 13, 2006 Letter), Doc. Entry 36, Feb. 29, 2012. D. 2007-2008 School Year For the 2007-2008 school year, Sotomayor was assigned to teach middle school and high school Spanish and to monitor the SAVE room. She indicates that the problems with Walsh and Smith began that year. See PL’s Dep. 135:5-7. 1. SLT Meeting On November 1, 2007, plaintiff attended a meeting of the School Leadership Team (SLT) as a substitute for her union leader; there, she became upset and distraught. PL’s Dep. 116:8, 119:3-12. In a letter to file dated November 16, 2007, Walsh observed that she had “arrived late with a strong odor of alcohol on [her] breath; [she] frequently interrupted the meeting with unrelated issues; [her] words were slurred and [she] had an antagonistic and confrontational ma[nn]er.” Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. Q (Nov. 16, 2007 Letter), Doc. Entry 36, Feb. 29, 2012. He noted that these observations were echoed by letters he received from all of the adult members of the SLT, and he concluded that her conduct was inappropriate and unprofessional. Id. In her written response, Sotomayor explained that she was stressed at the time of the SLT meeting. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. O (Dec. 12, 2007 Letter), Doc. Entry 36, Feb. 29, 2012, She denied being under the influence of any substance. Id. While Walsh wrote a letter to file regarding plaintiffs behavior at the SLT meeting, he allegedly resolved similar issues with younger Caucasian teachers informally, without such letters. Id. 124:13-125:25; 130:2-131:6. These issues involved infractions such as “being late, taking the day off if you party too much on Saint Patty’s day, or if you decide to take a trip somewhere.” Id. 125:18:21. 2. SAVE Room Incident On December 12, 2007, plaintiff was supervising four students in the SAVE room who had been involved in a fight between Arab and African-American students. When Walsh entered the room, he noticed that several students were listening to their iPods through headphones in violation of school policy. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. R (Dec. 17, 2007 Letter), Doc. Entry 36, Feb. 29, 2012. Some were not engaged in academic activities as required by SAVE room procedures. Id. Walsh intervened, removing several students from the room, confiscating their iPods, and talking to them about school rules. Id. Plaintiff testified that defendant Walsh was “very ... menacing towards the boys” during the incident. Pl.’s Dep. 113:10. Sotomayor reacted in a January 18, 2008 letter, explaining that she had told students not to listen to their iPods and that students were not engaged in academic work because they were airing their feelings about the fight. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. S (Jan. 18, 2008 Letter), Doc. Entry 36, Feb. 29, 2012. Plaintiff believes that Walsh’s actions were discriminatory because “if I was a white male, I don’t think he would have gone in there and barged right in.” Pl.’s Dep. 115:9-10. When other white teachers have covered the SAVE room, he is more warm, convivial. He doesn’t get into the faces of the students. It’s just a different demeanor and approach. Id. 115:16-19. She identified specific Caucasian teachers, including Sara Davis and Christian Bowen, who had been treated differently. Pl.’s Dep. 115:22-23. 3. Classroom Observations Beginning in the 2007-2008 school year, Sotomayor began receiving more frequent classroom observations from Walsh, as well as unsatisfactory ratings following those observations. • In December 2007, Walsh noted that, although plaintiff had a “pleasant rapport with students” and “the majority of students worked on the packet for the duration of the period,” the quality of her instruction needed improvement. He also stated that she needed to hold students accountable to a higher standard, and to greet them as they entered the classroom. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. N (Dec. 21, 2007 Report on Observation), Doc. Entry 36, Feb. 29, 2012. • In the spring of 2008, Walsh conducted several informal observations of plaintiffs classroom. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. T (Apr. 9, 2008 Letter), Doc. Entry 36, Feb. 29, 2012. After discussing his observations with Sotomayor, he memorialized them in an April 9, 2008 letter. He noted that Sotomayor was late to class on two occasions; that she was unable to provide lesson plans; that she did not acknowledge or record student tardiness; and that she did not ensure that students were on task during the classroom period. Id. He particularly faulted her “failure to plan meaningful, rigorous, and paced lessons.” Id. He reminded plaintiff that she should “arrive to class before the first bell rings, to set up [her] materials, greet [her] students at the door and set a positive tone and high expectation^] for the class.” Id. 4. Tentative Class Assignments for 2008-2009 School Year In April 2008, teachers at the School for International Studies were asked to rank three choices of which subjects they wished to teach in the upcoming school year. On her preference sheet, plaintiff listed only her top choice, high school Spanish. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. V (2008-2009 Preference Sheet), Doc. Entry 36, Feb. 29, 2012. She was tentatively assigned to the classes she requested. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. W (Tentative Assignment), Doc. Entry 36, Feb. 29, 2012. 5. First FMLA Leave In June 2008, Sotomayor learned that her father had been diagnosed with cancer. Pl.’s Dep. 196:1-9, 197:21-24. She requested family medical leave in order to care for her father. Id. 197:5-7. It was granted. Id. 200:23-201:1. E. 2008-2009 School Year 1. Change in Class Assignment On June 25, 2008, approximately one week after Sotomayor requested FMLA leave, Walsh changed her tentative class assignment for the 2008-2009 school year. Rather than teaching high school Spanish exclusively, plaintiff was assigned to teach high school Spanish 1, eight grade Spanish, and sixth grade International Studies, and to preside at the SAVE room. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. X (June 25, 2008 Emails), Doc. Entry 36, Feb. 29, 2012. When plaintiff asked why her preference had been changes, Walsh explained that it was required by the needs of the school. Id. Defendants claim the change was made due to budgetary constraints and the licenses which plaintiff held. See id.; Walsh Dep. 171:22-172:12. Plaintiff filed a grievance, claiming that her new schedule was onerous. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. Y (Step 1 Grievance), Doc. Entry 36, Feb. 29, 2012. Following a hearing on August 28, 2008, Walsh denied her grievance. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. Z (Step 1 Grievance Determination), Doc. Entry 36, Feb. 29, 2012. At plaintiff’s request, a hearing before an independent arbitrator was provided; the arbitrator denied the grievance. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. AA (Sept. 24, 2008 Arbitration Decision), Doc. Entry 36, Feb. 29, 2012. 2. Classroom Observations Plaintiff returned to work at the beginning of the new school year in September 2008. Pl.’s Dep. 201:2-5. In the year that followed, plaintiff continued to be observed more frequently than in years past. Defendant Smith, Sotomayor’s supervisor, conducted several informal and formal observations of plaintiffs classes: • Plaintiff was observed informally on September 8th and 11th Smith provided suggestions for using instructional time more effectively and recommended that plaintiff: 1) work on student engagement, and 2) hold students accountable for their actions. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. BB (Emails RE: Sept. 8, 2008 Informal Observation), Doc. Entry 36, Feb. 29, 2012; Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. CC (Emails RE: Sept. 11, 2008 Informal Observation), Doc. Entry 36, Feb. 29, 2012. • At her request, plaintiff was formally observed on November 17. The lesson was rated satisfactory, although Smith noted several areas for improvement, including improving the pacing of her lesson and better utilizing class time. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. DD (Dec. 1, 2008 Observation Report), Doc. Entry 36, Feb. 29, 2012. As a result of these observations, Smith arranged to meet with plaintiff weekly to go over her lesson plans and unit outlines. Id. Sotomayor also met with Marci Mann, an Instructional Specialist from the Community Learning Support Organization, on several occasions. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. EE (Dec. 20, 2008 Letter), Doc. Entry 36, Feb. 29, 2012; Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. FF (Log of Assistance), Doc. Entry 36, Feb. 29, 2012. Plaintiff does not consider her meetings with the Instructional Specialist to constitute professional development, since many other teachers were present during the sessions. Pl.’s Dep. 293-94. Sotomayor and Smith had several additional discussions regarding the absence of substitute lesson plans. • On March 19th, Sotomayor was absent and had not left copies of substitute lesson plans for her International Studies class, as required by the faculty handbook. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. JJ (Mar. 23 and Mar. 31 Letters RE: Substitute Work), Doc. Entry 36, Feb. 29, 2012. Smith advised plaintiff that she had scheduled a meeting for March 25th to discuss this deficiency, and that, because the meeting could lead to disciplinary action, plaintiff could bring a union representative. Id. Plaintiff responded by letter that “there was plenty of work available for my students on top of a desk next to the computers. In addition, there’s additional work that subs can draw from in the event more is needed.” Id. She disputed whether leaving substitute work was part of her contract or could subject her to disciplinary action. Id. Following the meeting, Smith “conclude[d] that [plaintiff] failed to follow the established procedure for submitting 3 substitute lesson plans ... as outlined in the faculty handbook.” Id. Sotomayor agreed to submit plans no later than April 3rd. Id. On April 2nd, Sotomayor submitted a letter disputing Smith’s characterization of events, stating that they had established at the meeting that Smith “had additional plans (6th grade work) on file and that you found other plans available in my classroom pursuant to school policy.” Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. KK (Apr. 2, 2009 Letter), Doc. Entry 36, Feb. 29, 2012. She asked that Smith’s letter memorializing the April 25, 2009 meeting be withdrawn from her file. See also Pl.’s Dep. 147:14-149:2. • On May 8th, Smith notified plaintiff that all of the lesson plans that were on file had been used by previous absences and the stock needed to be replenished. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. LL (May 8, 2009 Email), Doc. Entry 36, Feb. 29, 2012. Plaintiff believes that Smith was discriminating against her by raising this issue, since she has substituted for other teachers who had not left lesson plans and she is not aware of other teachers who received similar letters. PL’s Dep. 149:18-152:11. Plaintiff was also formally and informally observed by Walsh: • On February 3rd, the first day of the new semester, Walsh walked through the school briefly observing all of his high school classes. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. HH (Emails RE: Spring Term), Doc. Entry 36, Feb. 29, 2012. When he dropped by plaintiffs classroom twenty minutes into the period, he saw students still wearing their coats with their book bags on their backs. Id. None of these students were actively participating in classwork. Id. • On March 5th, Walsh formally observed the plaintiff. He met with her the following day to discuss the lesson, which he considered to be unsatisfactory. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. II (Mar. 9, 2009 Observation Report), Doc. Entry 36, Feb. 29, 2012. His criticisms were similar to previous observations, citing her failure to properly pace the lesson and failure to engage her students. Id. He suggested techniques for improvement. Id. • On April 29th, Smith again formally observed the plaintiff and concluded that her lesson was unsatisfactory. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. MM (May 8, 2009 Observation Report), Doc. Entry 36, Feb. 29, 2012. Many of the criticisms and recommendations were similar to those from past observations. Id. By a letter dated Friday, May 15th, Sotomayor was advised that Instructional Specialist Mann would conduct a formal observation of her fifth period class. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. OO (May 15, 2009 Letter), Doc. Entry 36, Feb. 29, 2012. A pre-observation conference would be conducted the same day during second period. Id. While there is no required notice period prior to conducting a formal observation, it is said by defendants to be unusual to have a pre-observation meeting on the same day as the observation itself. Walsh Dep. 125:4-19, 186:22-187:5. According to Walsh, Mann was brought in as the Superintendent’s designee and outsider to observe the plaintiff with a neutral set of eyes because Walsh had reported that Sotomayor was at risk of an unsatisfactory rating. Id. 191:3-11; 195:13-25. Sotomayor did not see the letter until she arrived at work on Monday, May 18th. Pl.’s Dep. 205:7-14. After observing plaintiffs lesson, Mann noted that, while there were some improvements compared to previous lessons she had observed Sotomayor teach, the lesson was overall unsatisfactory. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. PP (May 18, 2009 Observation Report), Doc. Entry 36, Feb. 29, 2012. Mann’s report echoed many of Walsh and Smith’s previous criticisms and suggestions for improvement, including that she needed to work on her pacing and improve the learning environment by using visual aids to engage the students. Id. 3. Concerns About Record Keeping In a Friday, May 15th letter, Walsh asked Sotomayor to meet with him the following Tuesday, May 19th, to discuss grading and record keeping for her students. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. NN (May 15, 2009 Letter), Doc. Entry 36, Feb. 29, 2012. In particular, he was concerned that one of her students had failed all classes except for plaintiffs class, despite poor attendance. Walsh Dep. 197:24-198:14. This meeting never took place due to Sotomayor’s FMLA leave of absence, which is discussed below. PL’s Dep. 205:5-7. Plaintiff believes that Walsh’s inquiry was another form of intimidation. Id. 211. 4. Unsatisfactory Rating Plaintiff received a “U” (unsatisfactory) rating on her Annual Performance Review for the 2008-2009 school year. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. QQ (2008-2009 Annual Evaluation), Doc. Entry 36, Feb. 29, 2012. She appealed the rating before the DOE’s Office of Appeals and Reviews. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. SS (Notice of Appellant), Doc. Entry 36, Feb. 29, 2012. Her appeal was eventually denied following a hearing. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. TT (June 8, 2010 Letter), Doc. Entry 36, Feb. 29, 2012. 5. Second FMLA Leave On Saturday, May 16th, Sotomayor notified Walsh by email that she was taking a second FMLA leave effective May 19th. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. KKK (May 16, 2009 Email), Doc. Entry 36, Feb. 29, 2012. Walsh approved her request with reservations: Ms. Sotomayor was absent for the last 6 days of the school year 2007-2008 regarding her father’s illness. The total of her absences result in 11 days. On May 18th she informed me that as of May 19th, she had to take a leave of absence to take care of her terminally ill father. She would be returning for the start of the school year 2009. Ms. Sotomayor is at risk of an Unsatisfactory rating due to instructional incompetence. It is my understanding that by taking a LOA, her “U” rating is automatically changed to a “C” rating. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. RR (May 28, 2009 Letter), Doc. Entry 36, Feb. 29, 2012. Plaintiff disputes that this is the “real” version of the letter, because another version of the letter which omits the reference to her rating was uncovered in discovery. Pl.’s Decl. in Opp. Ex. 6 (May 28, 2009 Letter), Doc. Entry 44, Apr. 20, 2012. F. 2009-2010 School Year When plaintiff returned to work in September 2009, she initially taught high school Spanish and middle school English as a Second Language (ESL). PL’s Dep. 78:6-18. Although she was supposed to begin teaching a Regents’ preparation class in the second semester, at the last minute, her class was changed to Essay Writing for middle school ESL Learners. Id. 78:15-80:15. At least two other teachers — one a Caucasian male, the other a Haitian female — were similarly assigned classes with little notice. Id. 81:12-83:4. Plaintiff does not know the ages of either of these teachers. Other than receiving teaching assignments that were not her preference, Soto-mayor does not allege that she was discriminated or retaliated against during the 2009-2010 school year. She received a satisfactory rating on her Annual Performance Evaluation that year. Id 263:16-18. G. 2010-2011 School Year 1. Class Assignment During the 2010-2011 school year, plaintiff was assigned to teach high school Spanish, middle school ESL, and ESL test coordination. PL.’s Dep. 83:14-19. 2. Classroom Observations Defendant Walsh again conducted several formal and informal observations of the plaintiff: • On December 2nd, Walsh determined that plaintiffs performance was unsatisfactory following an observation of her second and third period classes. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. XX (Dec. 2, 2010 Observation Report), Doc. Entry 36, Feb. 29, 2012. He criticized the lack of structure in her lesson, as well as her failure to manage the classroom effectively. Plaintiff alleges that the “observation was unfair and factually false and occurred on the day after a possible bedbug infestation was discovered in plaintiffs classroom and during a time that the students were emotionally upset as a result of preparing for midterms.” Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. UU (PL’s Resp. to Defs.’ Interrogatories), Doc. Entry 36, Feb. 29, 2012 (“PL’s Resp. to Defs.’ Interrogatories”); Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. YY (Dec. 6, 2010 Email), Doc. Entry 36, Feb. 29, 2012. • On December 21st following a formal observation, Walsh again concluded that plaintiffs lesson was unsatisfactory: the lesson was poorly planned, and she had failed to implement his suggestions following his previous observation. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. ZZ (Jan. 3, 2011 Observation Report), Doc. Entry 36, Feb. 29, 2012. Plaintiff initially claimed that, during the observation, Walsh “was very confrontational towards [her] and the students displayed shock that defendant Walsh would, in their presence, treat plaintiff in such a menacing and threatening manner.” Pl.’s Resp. to Defs.’ Interrogatories. She later clarified that “it wasn’t so much as he got into my face, it was surprising that he came in on that day [December 21, 2010], because it was a day the kids would probably have been agitated. We had a random scanning conducted that week, right before the holiday. Oddly enough, one of the kids was screaming in the halls, they felt violated because they had all of their electronic devices taken.” Pl.’s Dep. 190:10-20. • On February 17th, after escorting two late students to Sotomayor’s class, Walsh conducted another informal observation. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. AAA (Feb. 18, 2011 Observation Report), Doc. Entry 36, Feb. 29, 2012. He observed that approximately half of her students were not engaged in any work and that she was not keeping records of lateness or attendance. Id. She could not provide him with a lesson plan when asked. Id. He concluded that her lesson was unsatisfactory. Id. Plaintiff claims that, during the observation, Walsh was “disruptive, abusive, and acted in a way to undermine the learning process.” PL.’s Resp. to Defs.’ Interrogatories 8. Assistant Principal Judith Willoughby, who is not a party to this action, also negatively critiqued plaintiff’s performance: • In an October 29 email, Willoughby criticized the condition and appearance of plaintiffs classroom during the prior evening’s Parent-Teacher conferences and scheduled a meeting to address the issue. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. WW (Oct. 29, 2010 Email), Doc. Entry 36, Feb. 29, 2012. • On March 30th, Willoughby conducted a formal observation of Sotomayor. Although she rated the lesson as satisfactory, she listed several areas of improvement, such as keeping her classroom and materials cleaner and better organized. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. BBB (Mar. 30, 2011 Observation Report), Doc. Entry 36, Feb. 29, 2012. Plaintiff received a satisfactory rating on her Annual Performance Evaluation for the year. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. EEE (2010-2011 Annual Evaluation), Doc. Entry 36, Feb. 29, 2012. 3. Failure to Pay for Prep Period Plaintiff alleges that she was not paid for preparation periods on two occasions in the spring of 2011. Pl.’s Resp. to Defs.’ Interrogatories 8. During that semester, plaintiff chose to use the period scheduled as her professional period for ESL Administration, Period 1, as her preparation period, and to use her scheduled preparation period, Period 4, as her professional period. PL Dep. 240:9-243:4. After she was assigned to conduct practice test administration for ESL students on two occasions during Period 1, Sotomayor filed a grievance, alleging she was “not being paid for prep periods.” Id. The grievance was denied because the period during which she was assigned to administer the tests was her scheduled professional period, not a prep period. Id. Her UFT representative agreed with Walsh that plaintiff was not entitled to be paid for administering practice tests during her scheduled professional period. Id. H. 2011-2012 School Year 1. Initial Class Assignment By a memorandum dated June 24th, 2011, Sotomayor was initially advised that her tentative assignment for the 2011-2012 school year would be teaching sixth grade science and seventh grade social studies. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. FFF (June 24, 2011 Mem.), Doc. Entry 36, Feb. 29, 2012. On June 27th, she filed a grievance on the grounds that her assignment required “excessive preparation.” Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. GGG (June 27, 2011 Step I Grievance), Doc. Entry 36, Feb. 29, 2012. 2. Plaintiff Initially Excessed On June 28th, plaintiff was notified that she was being excessed from the school. Defs.’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. HHH (June 28, 2011 Excess Letter), Doc. Entry 36, Feb. 29, 2012. According to defendant Walsh, teachers are excessed when a budgetary shortfall requires a principal to go through the school’s table of organization to look for positions which lack funding. Walsh Dep. 249:12-16. Sotomayor was set to be excessed because he believed that there was insufficient money to pay all of the teachers on his staff. Id. 249:12-253:13. Sotomayor in particular was chosen, Walsh contends, because of the needs of the school. While plaintiff has a Common Branch License to teach pre-kindergarten to sixth grade and an Initial Spanish License, she has never received a permanent Spanish license. PL’s Dep. 19:17-22:11. Walsh believed that he needed to replace a common branch licensed teacher with a licensed ESL teacher. Walsh Dep. 249:12-253:13. She was the only teacher scheduled to be excessed that year. Id. 250:6-7. In late June 2011, Walsh was informed by the human resources person in the school’s network that it was not necessary to excess a teacher. Id. 249:20-251:20. He immediately called Sotomayor to let her know that she could return to the School for International Studies for the 2011-2012 school year. Id. 3. Plaintiffs Assignments for the 2011-2012 Year When Sotomayor returned to the school in the fall of 2011, she was assigned to teach sixth and seventh grade Social Studies and Advanced High School ESL. PL Dep. 109:5-8. She has not filed a grievance regarding this assignment. Plaintiff was assigned to teach in Room 117. Id. 265:16-18. She complains that this room assignment is undesirable because it had “become a dumping ground for faculty who were getting rid of their stuff’ and the classroom contained old or broken desks. Id. 265:19-266:16. Although defendant Smith said that she would remove these objects from plaintiffs classroom, she apparently never did. Id. 226:17-22. 4. Loss of “Per Session” Position She also claims that she lost an opportunity for a “per session” position, which is a job performed by teachers before or after school hours, such as supervising or leading extracurricular activities or offering extra academic help. Id. 243:19-251:7. Plaintiff held per session positions continuously from the 2006-2007 school year to the 2010-2011 school year. Id. Most of these positions were for conducting an afterschool ESL program. Id. At the time of Sotomayor’s deposition, she did not have a “per session” position for the 2011-2012 school year, because the ESL afterschool program had not yet started. Id. 247:16-25. Other extracurricular activities, such as sports programs, had begun. Id. Plaintiff believes that the delay in the launch of the ESL afterschool program is the result of discrimination. Id. 249:17-25. On January 9, 2012 — after plaintiffs deposition in this case was taken — a “per session” vacancy notice was posted for a teacher to conduct an afterschool program for English Language Learners. Decl. of Fred Walsh ¶ 12, Doc. Entry 47, May 11, 2012 (“Walsh Decl.”). Sotomayor did not apply for the position. Id. ¶ 13. She has never been denied the opportunity to work a “per session” job that she has applied for. PI. Dep. 251:4-7. I. Current Employment At the time of the hearing, Sotomayor was still employed at the School of International Studies. See Tr. of Hr’g, May 15, 2012. J. Evidence of Animus 1. School Composition Since Walsh became principal, the number of teachers at the school fluctuated between thirty-two and forty. Walsh Dep. Id. 66:18-16. Most of the teachers at the school are Caucasian. Id. 74:19-23. During his tenure, there have been at least nine faculty members of Hispanic national origin and at least seven African-American faculty members. Id. 69-72; 69:24-70:20. Most of the teachers are between thirty and forty years old. Id. 79:21-23. Six or seven teachers are more than forty years old. Id. 77:24-25. 2. Differential Treatment of Plaintiff In addition to the facts outlined above, plaintiff alleges that she was discriminated against because: • Her room assignments were changed frequently, and “that did not happen with the white staff.” PI. Dep. 136:14-16. • She has historically received a disproportionate number of at-risk students with special needs compared to the other Spanish teacher. Id. 85:21-86:5. The other teacher is in her early 30s. Id. 89:12-13. • She was subjected to multiple observations each school year. Most tenured teachers received only two formal observations during an average school year. Walsh Dep. 124:22-24. Walsh admits that underperforming teachers receive more frequent observations, and that he considered Sotomayor to be underperforming. Id. 117:9-15. • She received undesirable classroom assignments. No other teachers shared classrooms for two consecutive years. PI. Dep. 106:16-23. No other teacher has applied for FMLA leave. Walsh Dep. 216:6:22. 3. Discriminatory Comments Plaintiff admits that Walsh never made any discriminatory or derogatory statements to her or other staff. She contends, however, that he has made such statements regarding students, “particularly about the type of clientele they wanted to attract.” Pl.’s Dep. 138:3-7. These comments included: • Walsh wanted to attract “higher performing students. Students that not necessarily are English language learners.” Id. 138:9-11. According to plaintiff, the “types of students he wishes to attract are from middle class and upper middle class not necessarily the students that are from other ethnicities who reside in the community, primarily the Arabic-speaking community and the children who come from the various housing projects.” Id. 273:1-7. Sotomayor also claims that she observed Walsh reject minority students who attempted to register at the school, even though it was under capacity. Id. 274:9-275:3. • Following a bedbug infestation, Walsh “implied the kids don’t clean up after themselves, they’re not washing, they’re wearing their clothes more than once. The students themselves felt they were being discriminated against, that he was being prejudicial that they wouldn’t wash.” Id. 276:12-17. Plaintiff believes these statements are discriminatory because the current student population is “predominately Hispanic, predominately African American, and a huge percentage of the English language learners are from the community who are Arab speaking.” Id. 138:21-139:1. While Smith never made any discriminatory or derogatory statements towards her or other staff, Sotomayor claims that Smith has made such statements regarding students. Id. 165:1-3. Specifically, in reference to “a couple of newly arrived Arab girls” who had been roaming the halls without being sanctioned, Smith said, “You know how these girls are. They think they can do whatever they want.” Id. 165:14-19. Plaintiff also claims that Smith spoke to her differently than Smith spoke to other teachers. Smith allegedly addressed Sotomayor in a condescending tone. Id. 169:5-6. [Her] communication style is not warm and professional. It is stern, adversarial and curt. I would see her engage with the other faculty members in the school and that was a totally different response. Id. 160:25-161:3. Smith is claimed to be warmer and more professional towards men. Id. 163:16-18. 4. Differential Treatment of Others Plaintiff claims that other older and/or non-Caucasian tenured teachers were treated similarly to plaintiff, while Caucasian and younger teachers were treated more favorably. She alleges: • Walsh and Smith “targeted” other “faculty of color” by making a series of “surprise, drop by observations.” Id. 140:14-141:18. Plaintiff claims that Walsh did not make similar informal observations of younger Caucasian teachers. Id. 135:1-4. She admits, however, that only one of the other Hispanic faculty members that she could remember being on staff since Walsh became principle was subject to the same “administrative strategies” of informal observations and negative write-ups. Id. 253:9-258:23. • Walsh only documented informal observations of underperforming teachers. Walsh Dep. 159:3-18. • Other than the plaintiff, he issued unsatisfactory formal observation reports only on underperforming teachers. Id. 162:25-163:15. All of the tenured teachers who received these reports were older and/or non-Caucasian. Id. • Walsh has given six tenured teachers unsatisfactory year end ratings during his tenure, all of whom were older and/or non-Caucasian. Id. 226:16-227:2. • Walsh identified two tenured teachers other than the plaintiff who have been underperforming at one time or another. Id. 120:8-122:23. One is an African-American woman who is approximately thirty years old. Id-The other is a Middle Eastern man in his mid-fifties or sixties. Id He did not identify any tenured younger Caucasian teachers as underperforming. Id. Walsh has since stated that he was mistaken at his deposition, and that the male teacher identified was not given an unsatisfactory rating. Walsh Deck ¶¶ 10-11. • In addition to plaintiff, only older and/or non-Caucasian teachers are listed in the log of assistance, which “documents any professional development meetings” with “teachers who have a demonstrated pattern of incompetence.” Walsh Dep. 227:12-229:15. • Other than the plaintiff, Walsh could recall only two other tenured teachers who received at least two letters to file. Both were African-American women he considered to be under-performing. Id. 144. • Walsh sought to dismiss Clarissa Clay, an African-American teacher, after rating Walsh found that two tenured teachers who were approximately sixty-five years old had consistently underperformed for two years in a row. Id. 96:5-25. One teacher retired; the other was assigned elsewhere. Id. • her performance unsatisfactory for two consecutive years. Walsh Dep. 33:98-34:2. At a formal termination proceeding, seventeen of the nineteen charges of incompetence against Clay were sustained. Id. 33:16-19. Clay was required to pay a fine and attend remedial coursework. Id. • Walsh terminated a sixty year-old African-American teacher during her probationary period. Id. 37:14-38:7. • Walsh “tends to hire white men, young women, young white women.” PI. Dep. 75:4-6. She did not point to any specific instances in which an older or non-Caucasian teacher was replaced by a younger and/or white teacher. Defendants note several instances in which teachers who were Caucasian were treated similarly to the plaintiff: • A Caucasian female teacher under 40 years old received multiple disciplinary letters to file in the course of a school year. Walsh Dep. 149:7-17. • A Caucasian male teacher under 40 years old received a “U” (unsatisfactory) rating on his Annual Performance Evaluation for the 2009-2010 school year. Walsh Deck ¶ 9. • For the 2008-2009 school year, plaintiff was the only pedagogical employee who received a “U” rating. See Walsh Deck Ex. A (Chart of Ratings for 2008-2009 School Year). All sixteen of the other non-Caucasians and all fourteen of the other “older” pedagogues received satisfactory ratings that year. Id. • For 2009-2010 school year, two pedagogical employees received “U” ratings: a Caucasian teacher under 40 years and a Caucasian teacher over 40 years old. See Walsh Decl. Ex. B (Chart of Ratings for 2009-2010 School Year). All fourteen non-Caucasians and fifteen of the sixteen “older” pedagogues (including plaintiff) received satisfactory ratings that year. • For the 2010-2011 school year, two pedagogical employees received “U” ratings: an Arabic teacher over 40 years old and a Caucasian teacher over 40 years old. Walsh Decl. Ex. C (Chart of Ratings for 2010-2011 School Year). Twelve of the thirteen non-Caucasians and fifteen of the seventeen “older” pedagogues (including plaintiff) received satisfactory year end ratings for the 2010-2011 school year. III. Procedural History On September 8, 2009, plaintiff filed a written charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”). Compl. ¶ 9. She commenced the instant action on July 26, 2010. IV. Summary Judgment Standard Summary judgment is appropriate if “there is no genuine issue as to any material fact and if the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Mitchell v. Washington-ville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir.1999). In ruling on a motion for summary judgment, the evidence must be construed in the light most favorable to the non-moving party and all reasonable inferences drawn in her favor. Fed.R.Civ.P. 56(c); see Anderson, 477 U.S. at 247-50, 255, 106 S.Ct. 2505; Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir.2009). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party appears to have met this burden, the opposing party must produce evidence that raises a question of material fact to defeat the motion. See Fed.R.Civ.P. 56(e). This evidence may not consist of “mere conclusory allegations, speculation or conjecture.” Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir.1996); see also Delaware & Hudson Ry. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir.1990) (“Conelusory allegations will not suffice to create a genuine issue.”). V. Claims Against City Are Dismissed All claims against the City of New York are dismissed. The City and the DOE are separate legal entities, and the City cannot be held liable for the alleged torts of DOE employees. E.g. Perez v. City of New York, 41 A.D.3d 378, 837 N.Y.S.2d 571, 572 (1st Dep’t 2007) (“The City cannot be held liable for [torts allegedly committed by the DOE and its employees].”); Falchenberg v. New York Dep’t of Educ., 375 F.Supp.2d 344, 347 (S.D.N.Y.2005) (“[T]he City and DOE are separate and distinct entities.... In the absence of any allegations demonstrating participation by the City, the complaint fails to state a cause of action against it.”). Because plaintiff alleges acts committed by the DOE and its employees, the City of New York is not a proper party. VI. Statute of Limitations for NYSHRL and NYCHRL Claims A. One Year Statute of Limitations Applies to Claims Against the DOE In general, the statute of limitations under the NYSHRL and the NYCHRL is three years. N.Y. C.P.L.R. 214(2); N.Y.C. Admin. Code § 8-502(d); Koerner v. State of New York, 62 N.Y.2d 442, 478 N.Y.S.2d 584, 467 N.E.2d 232, 233-34 (1984) (holding that the three year statute of limitations applies to discrimination claims under the NYSHRL). New York law provides for a shorter statute of limitations for claims against schools, school districts, and boards of education. N.Y. Educ. Law § 3813(2-b) (“[N]o action or special proceeding shall be commenced against any [school, school district, board of education, or an ‘officer of a school district, board of education, board of cooperative educational services, or school provided for in article eighty-five of this chapter or chapter ten hundred sixty of the laws of nineteen hundred seventy-four’] more than one year after the cause of action arose.”). The shorter statute of limitations also applies to an “officer of a school district, board of education, board of cooperative educational services, or school provided for in article eighty-five of this chapter or chapter ten hundred sixty of the laws of nineteen hundred seventy-four.” N.Y. Educ. Law § 3813(1). “Article 85 schools are statutorily designated ‘special schools,’ including schools for the instruction of the deaf and blind, as are schools governed by Chapter 1060 under the 1974 laws.” Richards v. Calvet, No. 99 Civ. 12172, 2005 WL 743251, at *13 (S.D.N.Y. Mar. 31, 2005) (holding that section 3813(1) does not apply to those claims against school principal because he is not an “officer” within the meaning of the statute). Principals and other school administrators are not officers of a board of education; unless these administrators are employed at the special schools specified by the statute, claims against them are not subject to the one year statute of limitations. Id.; see also Fierro v. City of New York, 591 F.Supp.2d 431, 447 (S.D.N.Y. 2008) (holding that plaintiffs claims against the school principal are not barred by one-year statute of limitations because the principal “is not an officer within the meaning of section 3813”), rev’d on other grounds, 341 Fed.Appx. 696 (2d Cir.2009). Plaintiffs claims against the DOE under the NYSHRL and the NYCHRL are subject to the one year statute of limitations. Id.; Amorosi v. South Colonie Ind. Cent. Sch. Dist., 9 N.Y.3d 367, 849 N.Y.S.2d 485, 880 N.E.2d 6, 10 (2007) (“[T]he one-year limitation prescribed in Education Law § 3813(2-b) should govern discrimination claims against a school district.”). The shorter statute of limitations does not apply to plaintiffs claims against Smith or Walsh. Defendants, as the moving party, have the burden of coming forward with evidence demonstrating that Smith and Walsh are “officers” of a board of education or special school as defined by section 3813. They have failed to do so. B. Time Bar Only Applies to NYSHRL Claims Against DOE Since the instant action was filed on July 26, 2010, under a strict application of the statute of limitations, claims against the DOE for discriminatory acts that occurred before July 26, 2009 would be time barred. Plaintiff urges that actions that occurred prior to this date can nevertheless be considered under the continuing violations doctrine. Under this doctrine, when a plaintiff experienced a “continuous practice and policy of discrimination, ... the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it.” Gomes v. Avco Corp., 964 F.2d 1330, 1333 (2d Cir.1992); see also Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001). In 2002, the Supreme Court limited this long-standing rule as it applies federal employment discrimination claims, holding that the continuing violation exception did not apply to discrete, time-barred incidents, even where those incidents were related to actionable ones: [A] Title VII plaintiff raising claims of discrete discriminatory or retaliatory acts must file his charge within the appropriate time period.... A charge alleging a hostile work environment claim, however, will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). It defined a “discrete act” as an action such as “termination, failure to promote, denial of transfer, or refusal to hire” that “constitutes a separate actionable ‘unlawful employment practice.’ ” Id. at 114, 122 S.Ct. 2061. The continuing violations doctrine was available in harassment claims, by contrast, because “[t]he ‘unlawful employment practice’ ... cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Id. at 115, 122 S.Ct. 2061. 1. NYSHRL Discrimination Claims Against DOE Time Barred The narrower definition of the continuing violations doctrine under Morgan applies to plaintiffs discrimination claims under state law. E.g. Milani v. International Business Machines Corp., Inc., 322 F.Supp.2d 434, 452 n. 32 (S.D.N.Y.2004) (holding that Morgan applies to NYSHRL claims). Her claims pertaining to acts which occurred prior to July 26, 2009, including disciplinary letters issued to plaintiff during the 2007-2008 and 2008-2009 school years; formal and informal observations of plaintiff during the 2007-2008 and 2008-2009 school years; plaintiffs assignments for the 2008-2009 school year, and the June 18, 2009 “U” rating, are time barred and are dismissed. 2. NYCHRL Claims Against DOE Timely Although earlier decisions applied Morgan to NYCHRL claims, e.g. Milani, 322 F.Supp.2d at 452 n. 32, New York state courts have since held that the prior, more generous, continuing violations doctrine continues to apply to claims under that statute, Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 872 N.Y.S.2d 27, 35 (1st Dep’t 2009). Otherwise time-barred discrete acts can be considered timely “where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice.” Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir.2001) (internal citations and quotations omitted). In the instant case, the allegedly discriminatory observations, negative performance ratings, and letters to file occurring before July 26, 2009 are discrete acts. See, e.g., Valtchev v. City of New York, 400 Fed.Appx. 586, 589 (2d Cir.2010) (holding that negative evaluations are discrete acts which do not trigger the continuing violation exception); Siddiqi v. N.Y.C Health & Hosps. Corp., 572 F.Supp.2d 353, 366 (S.D.N.Y.2008) (“Each negative performance evaluation is a discrete act.”); Smith v. N.Y.C. Dep’t of Educ., 09 Civ. 9256, 2011 WL 5118797, at *5 (S.D.N.Y.2011) (Cote, J.) (holding that “an unsatisfactory rating following a classroom observation” is a discrete act for the purposes of the continuing violations doctrine). Construing the record in the light most favorable to the plaintiff, these discrete acts could be considered part of a single, continuing policy of discrimination against Sotomayor by defendant Walsh. He is alleged to have discriminated against plaintiff by subjecting her to an inordinate number of formal and informal observations, and by giving her negative ratings following those observations. This pattern of activity could be found to have begun in the 2007-2008 school year and continued into the 2010-2011 school year. The discriminatory conduct is sufficiently similar to be considered part of a single policy. Compare Donlon v. Bd. of Educ. of Greece Cent. Sch. Dist., No. 06-CV-6027, 2007 WL 108470, at *4 (W.D.N.Y. Jan. 12, 2007) (holding that the continuing violation doctrine was inapplicable where plaintiff “asserts that she was subject to a number of separate evaluations and classroom observations during a four-year period made by distinct individuals, each of whom is alleged to have discriminated against her,” since each event constituted a discrete act (emphasis added)). Claims based upon Walsh’s pre-July 26, 2009 acts are timely for the purposes of plaintiffs NYCHRL discrimination claim. The DOE does not dispute that it can be held liable for such conduct of Walsh for the purpose of these claims. 3. NYSHRL Harassment Claim Against DOE Timely To the extent th