Full opinion text
MEMORANDUM OF DECISION AND ORDER SPATT, District Judge. On December 7, 2011, the Plaintiffs Betsy Benedith, Sherwyn Besson, and Kenneth Smith (collectively the “Plaintiffs”), current and former employees of the Málveme Union Free School District (the “District”), commenced this action against the District, James Brown (“Brown”), James Hunderfund (“Hunderfund”), Rosalinda Ricca (“Ricca”), and Vincent Romano (“Romano”) pursuant to 42 U.S.C. § 1981, 42 U.S.C. § 1983, the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. .(“Title VII”), the New York State Human Rights Law (“NYSHRL”), and the Nassau County Human Rights Law (“NCHRL”), raising claims for, among other things, employment-related discrimination and a hostile work environment on the basis of race. On January 31, 2014, the Defendants filed a single notice of motion pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 56 for summary judgment dismissing the complaint in its entirety as to each Plaintiff. Alternatively, the Defendants moved pursuant to Fed.R.Civ.P. 21 and/or 42(b) for severance of the claims and to hold separate trials. With the Court’s permission, the Defendants filed a separate memorandum of law as to each Plaintiff. For the reasons set forth, the motions for summary judgment are granted in part and denied in part. The alternative motions for severance and separate trials are granted. I. BACKGROUND Unless stated otherwise, the following facts are drawn from the parties’ respective 56.1 statements and the exhibits attached. Triable issues of fact are noted. A. Facts Relevant to All Plaintiffs 1. The District’s Anti-Discrimination Policy The District has an anti-discrimination policy, which provides that employees should make any complaint of discrimination to the District’s Title IX officer or they may follow the procedures in place for filing a grievance under the collective bargaining agreement negotiated between the Málveme Teachers’ Association and the Board of Education. The antidiscrimination policy provides for two procedural stages and one appellate stage for any investigation into a discrimination complaint. Romano, who is white and was at all relevant times the Assistant Principal of the Middle School, confirmed in his deposition that (1) he did not know if the District had such a policy and (2) he had received no training regarding anti-discrimination sensitivity. Hunderfund, the District’s Superintendent, who is also white, had not reviewed the antidiscrimination policy in the three years prior to his deposition, which was taken on March 8, 2013. As to Ricca, the Chairperson of the District’s Math Department, he indicated that he did not know if the District had an anti-discrimination policy. B. Facts as to the Plaintiff Betsy Benedith 1. Benedith’s Service as Dean of Students of the Middle School In 2007, Benedith, who is black, was hired by the District as the Dean of Students in the Howard T. Herber Middle School (the “Middle School”). Romano and Hunderfund were a part of the hiring committee that was involved in Benedith’s hiring. Steven Gilhuley, who is white and was the Middle School’s Principal, supervised Benedith when she was the Dean. Gilhuley gave Benedith favorable performance evaluations during the time she spent at the Middle School. In this regard, Gilhuley found Benedith to be “effective with her management and interaction with the staff,” and commented that “[s]he did a good job.” (Gilhuley Dep., at 39.) That said, Benedith felt that Gilhuley excluded her from certain conferences on the basis of her race, but she never reported this belief to anyone. 2. Benedith’s Promotion to Assistant Principal of the High School At some point, Hunderfund and Richard Banyon, the District’s Deputy Superintendent, encouraged Benedith to apply for the Assistant Principal position in the High School, which she did. Theadra McCrae, the District’s Pupil Personnel Supervisor,’ Ricca, and Brown, the High School Principal, who is black, interviewed Benedith for the Assistant Principal position. Hunderfund recommended Benedith’s appointment as Assistant Principal in the High School to the District’s Board of Education. In 2008, the Board of Education approved Benedith’s appointment. As Assistant Principal, Benedith observed teachers and planned assemblies, award ceremonies, parent-teacher conferences, and staff development. During this period, Brown was Benedith’s direct supervisor. At the High School, the other Assistant Principal position was later filled by Romano. Benedith alleges that although she was promoted to Assistant Principal at the High School before Romano was so promoted, Romano was given seniority credits over Benedith. However, it appears Romano had more seniority because he previously held the position of Assistant Principal in the Middle School. Further, Benedith alleges that while both Assistant Principal positions in the High School were supposed to be equal in rank, in fact, such was not the case. In this regard, Benedith maintains that Brown unfairly preferred Romano over her. For example, Brown gave Benedith an office on a different floor from his and Romano’s office. By contrast, Brown and Romano’s offices are both on the second floor, less than a hundred yards apart. Benedith testified that, when discussing assignments and seniority in July 2008, Brown told her: “I just need you to know that if you notice that I show preference to Mr. Romano, don’t take it personal. You know, we are in a White District. They are in control. They are prepping him to become the Principal and I don’t want to give the staff members an impression that I am favoring you over him because you’re Black.” (Benedith Dep, at 85.) In a memorandum from Benedith to Brown, dated March 8, 2011, Benedith wrote: “During the course of the work/ school day, it may become challenging to remain in constant communication especially if I am not on the same floor.” (Benedith’s Exh. E.) Benedith continued: “I realize that being on a different floor from the main/principal’s, attendance, assistant principals, and guidance office, does not allow me the opportunity to give input/feedback, receive pertinent information, and/or be part of the decision making that would make me a stronger administrator and allow me to be considered a part of the administrative team.” (Id.). Brown admitted that Benedith “may have” expressed to him that her room assignment created communication issues. (Brown Dep., at 58-59.) Brown testified that he too was concerned about the communication issues resulting from the office assignments, and that he even “expressed it to her” himself. Brown also admitted that “Romano and my office have a close proximity, so [we] naturally had an opportunity to see each other.” (Id.) In addition, Romano initially had a full-time secretary, while Benedith only had two part-time secretaries. Benedith’s secretaries split the day in half, apparently resulting in missed messages and problems processing paperwork. Benedith complained about this to Brown. Following this complaint, the District assigned Benedith a full-time secretary. However, Benedith did not have a full time secretary as Assistant Principal for two years, until 2010. Benedith also alleges disparate treatment between Romano and her in other aspects of work. For example, each of the District’s schools takes turns organizing a Martin Luther King Day Event. Benedith organized the event in February 2009, when it was the High School’s turn. However, two or three hours before the event, Hunderfund disapproved the program pamphlet created by Benedith. The pamphlet had previously been approved by Brown. As a result, Benedith paid for the banner, the construction paper, markers, and miscellaneous supplies out of her pocket. Instead of finding out why Hunderfund did not approve the pamphlet, Benedith admitted that she simply “changed the color to make it appear as if I changed something” and made new copies. (Benedith’s Dep, at 230-31.) Ultimately, Benedith did not receive a letter of commendation in her personnel file for her efforts organizing the Martin Luther King Day event. By contrast, Romano received approximately $1,000 from the District for his project; the college fair. The District has paid for Romano’s college fair every year he has held it. Romano received a letter of commendation in his personnel file for his efforts organizing the college fair. Benedith also alleges that Romano undermined her authority in certain regards. For instance, although Romano did not have the authority to discipline Benedith, in June 2010, Romano reprimanded Benedith in front of other teachers regarding a directive she gave them during a state examination. Romano allegedly reprimanded Benedith while on speakerphone, in the presence of two or three social studies teachers, who were all white. Benedith believes that Romano was discriminating against her on the basis of her race when he chided her in front of their white colleagues. Benedith allegedly reported this incident to Brown. In October 2010, Benedith was in charge of administering a PSAT examination at the High School. On the day of the examination, Brown and Romano attempted to contact Benedith with questions about the examination; however, they could not reach her. Benedith maintains that she did not receive any calls from either Brown or Romano. Benedith also admitted that she was absent on the day of a Regents examination and that her secretary did not know what to do in Benedith’s absence. Benedith’s secretary did not know what to do because Benedith did not give her any instructions prior to her absence. Benedith acknowledged that an administrator and two other people are supposed to be present to count Regents examinations on the day’ of the test. Benedith had no idea what happened in her absence, although this was her responsibility. According to Benedith, in her absence, the Principal was responsible for the administration of examinations. Benedith maintains that, even if Benedith had provided her secretary with instructions in her absence, the secretary could not have given directives to chairpersons as to the administration of the test, as this responsibility ultimately fell to Brown. 3. The Alleged Hostile Work Environment Against Benedith Benedith asserts that, as the Assistant Principal at the High School, she was subjected to a hostile work environment— primarily, created by Brown—on account of her race, even though the two individuals were both black. For instance, Benedith attended at least 10 professional development courses during her employment with the District, including courses on administrative leadership and constructing a master schedule. According to Benedith, Brown verbally denied many of Benedith’s requests to attend professional development conferences before she even had a chance to fill out written request slips. Benedith believed Brown denied her requests based on her race. Benedith felt this way, in part, because when she approached Brown, he would say, “No. Don’t go with your head’ You know, moving—making the head gestures. You know circular motions just remind[] me that I’m from the ghetto.” (Benedith Dep, at 203.) Brown also commented to Benedith, ‘Y’all know you got attitude when y’all from the project.” (Id.) There is also evidence that Brown called Benedith a “nigger” to her face regularly from 2008 to 2011. On July 7, 2008, Brown allegedly commented to Benedith when he told her that she “was a black woman, [she] wasn’t going to be liked and at the end of the day, [she] is still [a nigger].” (Id. at 266.) Brown also told Benedith “you are Black, you are a woman, you are smart and you are beautiful, and they (White staff members) are not going to like you because of that, and at the end of the day, they are going to look out for each other and at the end of the day, you are always going to be a nigger, and when you wake up in the morning, you are always going to be Black.” (Id. at 279.) Between 2008 and 2011, Brown would often also remind Benedith that she “can do whatever [she] wants, it doesn’t matter how good it is, but you [can’t] change who you are, referring to her race.” (Id. at 280.) Another instance occurred on November 2, 2010, after Brown and Benedith were involved in a verbal altercation with certain white administrators, including Romano. During the incident, Romano asked Brown if he knew how to spell a certain word, to which Brown responded: “I am not going to stoop down to your level.” (Id. at 167.) Following this comment to Romano, Brown and Benedith apparently walked to Browns’ office where Brown told Benedith: “This is what I am talking about. At the end of the day, you’re always going to be the [nigger]. It’s the all White boys club and that’s all they see when they look at you.” (Id. at 127.) In April 201Í, Brown allegedly told Benedith: “Don’t come in here complaining like these other [bitches]. Don’t come here with your head—the head shaking like you know you ghetto girls do—the girls from the ghetto do.” (Id. at 172.) Brown said this to Benedith “whenever I would go in and say something.” (Id.) However, Benedith told no one at the District that she felt Brown was discriminating against her on the basis of race. At Brown’s deposition, he stated: “All Blacks suspect racism ... racism is always suspected with us whenever it involves someone white or whatever. Some are more vociferous about it than others, but it does exist. I am sure you will agree. And we often talk about it amongst ourselves.” Brown further testified that, in the United States, “white folks” are the “dominants” and in power, while Blacks are “not in the power position.” (Brown Dep., at 45-46.) 4. The Denial of Tenure for Benedith and Her Termination from Employment In November 2010, Brown told Benedith that the District was considering eliminating her position for budgetary reasons. Conversely, Benedith alleges that the position was eliminated because she is black, as the remaining non-black Administrators received tenure and their positions were not eliminated. Banyon, the Deputy Superintendent, confirmed that, as a result of these personnel decisions, ten of the eleven District Administrators are white, as are all members of the Central Administration. Benedith also notes that minorities compose 15% of the total certified staff at the District, including teachers and administrators, at the District. Brown did not recommend Benedith for tenure. Brown indicated in a March 2011 Mid-Year Performance review that while Benedith was popular with her students, he “would like to have seen more professional growth in leadership over the past two years.” (Benedith’s Exh. M) However, Benedith notes that Brown did not evaluate her in 2009-2010 and only evaluated her in 2011 “because she was up for tenure” (Brown Dep., at 56.); Romano did not receive an evaluation in the 2011-2012 school year; Romano received tenure as an Assistant Principal at the conclusion of the 2009-2010 school year; and Romano did not receive a mid-year evaluation during the year he received tenure. On March 25, 2011, Banyon gave Benedith a letter which stated that she would not be receiving tenure. This letter advised her that Benedith’s probationary period would end on June 24, 2011. Also, by letter dated March 25, 2011, Hunderfund notified Benedith in writing that, at the upcoming May 10, 2011 Board of Education meeting, he would be recommending that she not be granted tenure. Benedith, along with her union representative, McRae, requested a reason for her termination and a meeting with Hunderfund regarding the same. The Defendants contend that, at the meeting, Hunderfund offered to ask the Board to grant Benedith tenure if she submitted an irrevocable letter of resignation. Benedith, on the other hand, maintains that Hunderfund only offered to ask the Board to grant Benedith tenure if there were no community protests at the Board meeting. McCrae told Benedith to “give them their letter and they will grant you tenure.” (Benedith’s Dep, at 401.) Benedith claims that she did not provide a letter of resignation because it would have disqualified her from unemployment benefits. Benedith did not ask to make her case for tenure to the Board. Benedith was never advised by her union representative that she was entitled to make a ease for tenure before the Board. In addition, Benedith did not look into whether she could have requested a fourth probationary year in lieu of termination. Rather, Benedith asserts that she was not aware that she could request a fourth probationary year. On May 10, 2011, the Board of Education voted to terminate Benedith’s employment. Benedith notes that Hunderfund recommended that the Board terminate Benedith’s employment; that the Board “rubber stamps” Hunderfund’s decisions regarding the “hiring and firing of persons;” (Hunderfund Dep, at 186.) .and that Hunderfund’s recommendation was based in part upon Brown’s recommendation that Benedith’s employment be terminated. On May 18, 2011, Hunderfund notified Benedith in writing that the Board of Education had accepted his recommendation. After Benedith’s termination, her job duties as Assistant Principal were assumed by an individual with the surname Benfante, who is white. Benfante worked in Benedith’s old office, and performed her former responsibilities such as: (1) keeping attendance for grade levels; (2) keeping track of cuts; (3) proctor scheduling; (4) planning honor roll celebrations; and (5) administering parking permits. After Brown learned of Benedith’s termination in June 2011, Brown recommended that Benedith apply for positions in Roslyn, Freeport, Roosevelt, and commented with respect to the Roslyn position, “That will probably be a good fit for you because there is a little—there is a section where they have minorities ... so you should apply.” (Benedith’s Dep., at 221.) C. Facts as to the Plaintiff Sherwyn Besson From September 2004 to the present, Besson, who is black, has been employed as a teacher in the Business Department of the High School. During the 2005-06 school year, he acquired tenure status. Besson is the father of two minor children, daughter A.B. and son I.B., who at various times have been students in the District. 1. Alleged Discrimination Against Besson by Kathy Varol Besson alleges that Kathy Varol, the head of the District’s Business Department, discriminated against him by questioning him about his. students’ passing percentages from 2006 to 2010. On the other hand, Besson alleges that Varol did not press white teachers about their students’ passing percentages. Besson acknowledges that these white teachers had students with higher passing percentages than the Besson students. However, according to Besson, in the District, black teachers felt more pressure to pass students than did white teachers. Varol assigned teachers the following ratings based on their performance: Unsatisfactory (lowest), Satisfactory, Good, Very Good, and Excellent. According to Besson, Varol showed him a chart that reflected the observation ratings that she gave to all of the District’s business teachers. According to this chart, two white teachers received “U” unsatisfactory ratings. Varol never gave Besson a “U” rating. However, Besson alleges that his ratings have remained the same at “good” throughout his tenure at the District, falsely implying no improvement, while his white colleagues’ scores have stayed consistently at “very good.” (Defs’ Exh. U.) Besson concedes that Varol never made any comments to Besson about his race. 2. Alleged Discrimination Against Besson Regarding Administrative i. Duty Within the District, all teachers are required to perform some kind of administrative duty. This administrative duty can be hall duty or supervising a study hall class. Some teachers have alternative duties, like chairing committees, helping to enforce District policies, or accepting lead teacher assignments. A chairperson typically requests that a teacher be relieved of an administrative duty so that the teacher could assist with these other tasks. However, Besson alleges that Romano makes the final decision as to which teachers are exempt from administrative duty. No chairperson or administrator ever contacted Romano and requested that Besson be relieved of his administrative duty. For example, when Rachel Ruisi, who is white, was performing administrative duties enforcing the eligibility policy, she was spared from the administrative duty list. In the 2009-2010 school year, when Besson was performing similar duties enforcing the eligibility policy, he remained on the administrative duty list. Besson asserts that white teachers are not always required to perform these administrative duties. Besson further contends that black teachers had more students in their study hall classes than did white teachers. Besson complained to his union about this allegedly discriminatory administrative assignment schedule. 3. Alleged Discrimination Against Besson As the Soccer Coach Besson was also the coach of the District’s Varsity Soccer team from 2005 to 2009 or 2010. The Board of Education and the Málveme Teachers’ Association set the coaches’ stipends. However, Besson claims that Hunderfund has input as to personnel salaries. During his tenure as boys’ soccer coach until 2010, Besson alleges that he was paid less than white coaches, such as Kim Rossi who coached volleyball, which Besson asserts is much a “less demanding” sport than boys’ soccer. (Rule 56.1 Statement, at ¶ 33.2) The Defendants note that the coaches’ stipends are fixed in the collective bargaining agreement. If Besson needed funds for his team, the protocol was for him to request it from the District’s Athletic Director and Business Manager. When Besson.was the soccer coach, Brenda White was the Athletic Director and Ray Neblitt was the Business Manager, both black. However, Hunderfund confirmed that the Athletic Director reports to Brown, who has the authority to “veto” and deny requests for funds from . the Athletic Director. During the 2008-2009 and 2009-2010 school years, Besson spent $2,000 out of his pocket on uniforms for his soccer team. Prior to purchasing the uniforms, he requested new uniforms from the Athletic Director, but was told there were no funds available. Hunderfund testified that he did not believe that it was appropriate that Besson paid for the uniforms, and is not aware of any other coaches who have paid for their team’s uniforms. 4. The Alleged Retaliation Against Besson for His Decision to Send His Daughter, A.B., to Private School At the end of the 2007-2008 school year, A.B. was the 8th grade Valedictorian at the Middle School. Hunderfund and Brown repeatedly recommended to Besson that he enroll A.B. at the High School. According to Besson, on one occasion, Hunderfund’s body language suggested that he was trying to intimidate Besson into sending A.B. to the High School. Besson further asserts that when he made it clear to Hunderfund that he would not be sending his daughter to the High School, but rather to a private Lutheran High School located within the District, Hunderfund was not happy with his answer. During the 2008-2009 school year, A.B. had access to District-funded school busing to the Lutheran High School. On July 14, 2009, Besson applied for busing for the 2009-10 school year. The deadline to apply expired on April 1, 2009. In August 2009, Besson received notification that his request was untimely, and, therefore, transportation would not be provided to A.B. However, Besson alleges that he is aware of other students whose applications were sent later, as late as August 2009, yet still secured public busing to their private schools that year. In particular, Besson alleges that another student, Nicole Zimmerman, who is white, submitted a late transportation application to the District, but the District nevertheless provided her with transportation. As a result of the denied application, Besson was forced to drive his daughter to and from the Lutheran High School, requiring the forfeiture of his position as the boys’ soccer coach. Besson allegedly lost $5,000 in income as a result of his forfeiture of the boys’ soccer coach position, and was subsequently unable to obtain another paying extra-curricular activity. Besson appealed the District’s decision to the New York State Education Department. The New York State Education Department found in the District’s favor. 5. The Alleged Retaliation for Publicly Criticizing Hunderfund At an October 13, 2009 Board meeting for the District, Besson gave a speech, during the “public comment” time, challenging the District’s appointment of Hunderfund as Superintendent. At the time, Hunderfund was serving as the interim superintendent. In his speech, Besson argued that Hunderfund’s past ethical violations, high salary, and lack of background with minority students suggested that he was not the best choice for the district, and that a good faith effort should be made to search for an alternate superintendent. Several of the administrators present felt that some of Besson’s statements were factually incorrect. Some administrators also felt that Besson should have addressed these concerns with Hunderfund in private. Hunderfund confirmed that he was insulted and disappointed at Besson’s remarks at the Board meeting, and disappointed in Besson’s character. (Hunderfund Dep., at 290-91.) Shortly after the Board meeting, the Union President, Bonnie Dresca, allegedly told Besson that Hunderfund was not happy with him, and directed her to tell Besson not to do it again. Dresca advised Besson to expect retaliation. Brown apparently made similarly-themed comments to Besson. Within a week of the meeting, the District teachers received an email from Hunderfund asking them not to speak out against the administration. Some administrators apparently felt that Besson should have addressed his concerns with Hunderfund in private. Besson alleges that, after his October 2009 speech before the Board, he began noticing changes in the way he was treated at work. For instance, he noticed that necessary equipment would not be present in his classroom; that he was receiving less support from the school information technology department for the computers he used to teach his students; and that responses to his correspondence with school administrators were delayed more than before. 6. Alleged Retaliation Against Besson’s Son, I.B. In 2009, Besson’s son, I.B., attended the District’s Davison Elementary School (the “Elementary School”). At some point, Besson learned that I.B. was being taken from his classes for reading lessons, thereby causing him to fall behind in other subjects. Besson- alleges that he was informed that the order to remove I.B. came from “higher up.” Besson complained to the Principal of the Elementary School, Edward Tallón, after which Tallón subsequently pulled I.B. out of the separate reading group. Following this incident, Besson sent I.B. to private school, at a significant cost. Besson implies that this incident was an example of retaliation against him. 7. The Alleged Discrimination/Retaliation in Besson’s Terms of Employment In April 2011, Besson learned that his position would be abolished for the 2011-2012 school year. Ultimately, the District partially re-instated his position to halftime for that school year. This partial reinstatement came with a substantially reduced salary and no health insurance or pension benefits. Besson filed a grievance challenging the partial elimination of his position, but that grievance was denied by Hunderfund and the Board. In early 2010, Besson was informed by an unnamed third-party that Hunderfund said he would “punish” him, “even if it meant shutting down the whole Business Department.” (Besson Dep., at 255.) Eventually, the District assigned another business teacher, Young, who is white, to teach classes that Besson had previously taught: Young had more seniority than Besson, although Besson alleges that he was more proficient in teaching the relevant classes. As justification for partially eliminating Besson’s position, the Defendants point to the fact that New York State does not require students to take business courses to obtain a regents diploma, nor did the District require students to take business courses to graduate. By contrast, New York State requires that students take Math, Science, Social Studies, English, Foreign Language, Physical Education, and Art to graduate with a Regents diploma. The Defendants assert that the fact that business courses are not required makes them more vulnerable to cuts than courses that are required. Indeed, Banyon confirmed that Hunderfund was “part of the process” of cutting the business education teachers’ salaries budget by $225,000. (Banyon Dep., at 195.) After the complaint was filed in this action, the District reinstated Besson to a full-time position for the 2012-2013 school year. However, Besson was again reduced to part-time for the 2013-2014 school year. D. Facts as to the Plaintiff Kenneth Smith The District hired Smith, who is black, as a teacher in 2002 in the Middle School. Smith interviewed with Ricca for this position. During the hiring process, Ricca observed Smith teach a lesson. Ricca recommended that the District hire Smith. According to Smith, on November 4, 2004, Ricca assigned Gilhuley and an individual with the surname Scricca to observe him. Smith believes that Ricca discriminated against him when assigning these two teachers to observe him, as opposed to observing Schroeder, a white teacher, and other white teachers. Smith notes that Scricca is known for giving unsatisfactory evaluations. At some point, Ricca recommended that Smith be granted tenure, which he acquired in 2005. Smith taught a sixth grade honors class while he was at the Middle School. Smith confirmed that he did not teach an honors class during his first year at the Middle School. In the Fall 2005, at Smith’s request, he was transferred to the High School. 1. Alleged Discrimination in Assignment of Classes, Conduct of Observations, and Access to Resources Smith alleges that, in the High School from 2005 to 2007, he was assigned only lower-level and non-honors mathematics courses. Smith contends that the District did not assign him any honors classes to teach until the 2007-2008 school year. Smith considers “honors” courses to be the same as higher-level courses that are taught to more advanced students. By contrast, Ricca distinguishes between honors courses and courses that are taught to older or more advanced students. Ricca told Smith that it is her personal practice not to give any teacher more than one honors class, although Ricca gave two honors classes to Lisa Bell-Matthews, another black mathematics teacher. Smith maintains that Ricca discriminated against him by giving “credit” for his students’ Regents examination passing rate to another teacher, Rachel Ruisi. Ruisi, who is white, was the students’ teacher of record when they took the Regents examination. Smith did not report this alleged discrimination to anyone. Smith further alleges that, in May 2009, a student named L.W. told him that L.W. knew Smith’s schedule for the following year. Smith assumed that another mathematics teacher, Kristen Burban, told L.W. about Smith’s schedule. Ricca told Smith that L.W. must have seen Smith’s schedule on her desk at the chairpersons’ office. For the 2009-2010 school year, Sullivan, one of the District’s mathematics teachers, took maternity leave. Sullivan’s classes were distributed among the remaining mathematics teachers. Smith states that Ricca, coordinating with Romano, determined which teachers received Sullivan’s classes while she was on maternity leave. In this regard, Smith alleges that several white teachers, including Christine Connell, were given the opportunity to take one of Sullivan’s classes, while Smith was not. ■ Teachers earn additional income if they teach more than five classes. All of the full time teachers in the mathematics department had five classes before Sullivan went on maternity leave. While Smith is the only black math teacher Ricca has hired in her 12 year tenure as Math Chairperson, Ricca has hired seven Caucasian math teachers for grades 7-12 in that time. Had Smith taken the class that Connell assumed, he would have been teaching four classes in a row. However, while Sullivan was on maternity leave, Ruisi was teaching four classes in a row, on some days for five consecutive periods. Ricca acknowledged that Ruisi taught four classes in a row, but this was because there was no other mathematics teacher available to teach the Sullivan class that Ruisi assumed. Smith never told Ricca that he wanted to teach one of Sullivan’s classes, nor did Ricca ask Smith if he would like to assume one of Sullivan’s classes. Smith does not know if any other teacher proactively requested one of Sullivan’s classes. On another occasion, Ricca told Smith • that a teacher must have Advanced Placement (“AP”) certification to teach AP courses, although Hunderfund’s deposition testimony appears to contradict that assertion. Smith does not have AP certification and has made no effort to obtain AP certification. Smith asserts that he was never offered the opportunity to obtain his AP certification or teach AP courses, as were his white colleagues. During the 2009-2010 school year, Ricca announced that teachers can earn additional income by teaching Regents review courses. Smith told Ricca that he was interested in teaching Regents review courses after school. Ricca told- Smith that he could not teach Regents review classes after school because he was already supervising after-school detention. The Regents review courses were to be taught at the same time as after-school detention. Smith learned that another mathematics teacher, Lauren Rnudsen, who is white, was teaching Regents review classes before school. Smith would have liked to teach Regents review classes before school. Knudsen told Ricca that Knudsen’s students could not undergo review after school and wanted to come before school. By contrast, Smith never proactively asked Ricca if he could teach Regents review classes before school. Ricca advised all of the mathematics teachers about a “THAT” (Technology Helps All Teachers) conference regarding use of the graphing calculator. The THAT conference, which Smith did not attend, was offered on a Saturday. Smith alleges that Ricca did not inform Plaintiff about the THAT conference until the registration date had already passed. Although teachers cannot be compelled to attend a conference on a Saturday, the Defendants contends that several teachers voluntarily attend the THAT conference annually. Indeed, throughout the 2009-2010 school year, Smith allegedly was not afforded the same professional development opportunities that his white colleagues were offered. Ricca observed Smith’s classroom in October 2009. According to District procedure, a post-observation conference is always held between the observing administrator and the observed teacher. Smith and Ricca exchanged e-mails regarding the October 2009 post-observation conference. They scheduled the post-observation conference during Smith’s eighth grade hall duty. Smith assumed that Ricca would relieve him of his hall duty. Ricca conducts approximately 20 to 30 percent of her post-observation conferences in the hallway while the teacher who was observed does hall duty. However, Smith realized that Ricca intended to hold the conference in the hallway when Ricca sat down next to him and started the conference. During this conference, Ricca pointed out to Smith that there was an incorrect answer on the board when class ended one day. Ricca felt that Smith should have corrected the answer before the students left for the day. Smith disagreed. According to Smith, he left the answer on the board because it was put up there by a student with low confidence. Smith asserted that he did not want to damage the student’s confidence by changing the answer, and, in any event, the answers were often, discussed the next day, so the students knew the answer was incorrect. Ricca asserts that Smith raised his voice, while Smith asserts that Ricca was the one who raised her voice. Although Ricca assured Smith that she has met with other teachers in the hallway for their post-observation conferences, Smith felt this forum constituted a violation of his privacy. Smith felt “publicly disgraced amongst faculty staff and student.” The District’s administration told Ricca that the mathematics department would have three Promethean Boards. A Promethean Board is an interactive board that can be used in delivering instruction. Ricca assigned the boards to classrooms that the District had dedicated as mathematics classrooms. Smith’s classroom was a Special Education classroom, which is why Ricca did not put a Promethean board in Smith’s room. During the 2009-2010 school year, white math teachers Ruisi, Pryor, and Knudsen had Promethean Boards and newer computers in their classrooms, when Smith did not. Despite Smith’s complaints about his old computer, Ricca did “[njothing much” to help him obtain a new one. (Id. at 104-05.) After Benedith was promoted to Assistant Principal, the District needed to hire someone to replace her as Dean. At some point thereafter, Hunderfund told Besson that he should apply for the position. Hunderfund phoned Gilhuley and told him that he should interview Smith and another teacher, Daniel Nehlsen, who is white, for the position. However, Smith asserts that Hunderfund never recommended him for the Dean’s position. At the time it was late in the summer, and Gilhuley did not have time to organize a hiring committee. The District ultimately hired Nehlsen for the Dean position. According to Gilhuley, he made the “ultimate decision” to hire Nehlsen. (Gilhuley Dep., at 52-53.) The Dean of Students’ position at the Middle School pays about $125,000 per year, or about $28,000 more per year than Smith earned. Nehlsen was the District’s Student Activities Coordinator before becoming the Dean. In the position of Student Activities Coordinator, Nehlsen was the “head” over teachers who supervised student clubs and activities. Gilhuley liked what he saw when he observed Nehlsen in his role as the Student Activities Coordinator. However, Smith also had more seniority in the District than did Nehlsen. Prior to his appointment as Dean of Students at the Middle School, Nehlsen had no experience actually working the Middle School. Prior to his application to the Dean of Students position, Smith taught at the Middle School. However, Gilhuley knew Nehlsen better and thought that Nehlsen gave a better interview than did Smith. Gilhuley has only hired one black teacher in his six year tenure as Principal of the Middle School. After Smith did not acquire the Dean position, Hunderfund and Brown, the High School’s Principal, offered to give Smith certain administrative work so that Smith could gain experience as an administrator. Smith declined this offer. In October 2009, Ricca told Smith that he needed to use the TI 83 or TI 84 Plus graphing calculator when teaching his students. New York State mandates that teachers use this calculator when teaching certain topics in mathematics. New York State drafts its Regents examinations based on the assumption that students will use the calculator. Therefore, if a student does not effectively use the graphing calculator, he or she will not finish the examination. The parties dispute whether Smith was in fact using the calculator in his lessons. The Defendants note that Ricca learned that Smith’s students told other mathematics teachers during extra help sessions that Smith did not teach them how to use the graphing calculator. However, Smith points out that Ricca was never able to identify a single student who allegedly complained about his teaching of the calculator or the lack of such instruction. In June 2010, Ricca and Brown met with Smith and told him that he still was not using the graphing calculator in his lessons as frequently as expected. Ricca told Smith that his students complained that they had not been taught how to use the graphing calculator. Brown told Smith that it was important that Smith’s students be on the same playing field as students who had other mathematics teachers. Ricca emphasized the importance of the calculator in the mathematics curriculum. Smith offered to teach the calculator instead of reviewing for the Regents examination with his students. Ricca and Brown responded that Smith should continue reviewing, but should teach the calculator at the end of the school year. Smith acknowledges that Brown was right to be concerned if a teacher was not following his chairperson’s directives. That year, there was one question on the Trigonometry Regents examination that solely tested a students’ ability to use the graphing calculator. Smith’s students apparently performed more poorly than did other District students on this question. Ricca felt that this was proof positive that Smith was not teaching the graphing calculator as directed. 2. The Alleged, Retaliation for the Anonymous Complaint Letter Banyon, Benedith, and Romano called Smith into a meeting on June 7, 2010. At this meeting, Smith learned that someone had submitted an anonymous letter to the New .York State Education Department. Smith did not author this letter. Rather, the co-plaintiff Besson wrote the letter. Banyon asked Smith if he knew of any inappropriate conduct occurring during the administration of Mathematics Regents examinations. Smith said that every teacher in the Mathematics Department except for himself has given improper assistance to students during Regents examinations. Smith believed that these teachers gave improper assistance because he saw them “lingering” near students for longer than Smith thought appropriate. However, Smith could not hear anything that any of these teachers said to students while they were “lingering.” Smith did not report anything else at this meeting. Smith later met with Hunderfund, Brown, and his union representative. Smith believes Hunderfund singled him out regarding the anonymous letter due to his race. Smith alleges that Hunderfund asked him if he wrote the letter. Smith denied writing the letter. Smith told Hunderfund that he felt other Mathematics teachers were “too liberal as far as helping the kids on a Regents exam.” (Smith Dep., at 153.) Hunderfund asked Smith why he did not tell anyone about what he observed. The only person Smith told about what he had seen was the co-plaintiff Besson. Smith did not report what he had seen to any District Administrator. Ricca and Hunderfund were disappointed that Smith did not report his concerns to a District administrator. Hunderfund sent a letter, dated June 11, 2010, to the New York State Department of Education summarizing the findings of the investigation in the letter. Following the investigation, Smith believed that his District e-mail account had been tampered with. On June 18, 2010, Brown asked Smith to meet with him. Brown told Smith that he wanted to meet with him about Smith’s concerns about his District e-mail account. Brown told Smith that he did not need a union representative. Smith would not meet with Brown, upsetting Brown. According to Brown, no teacher ever refused to meet with him in his entire career. Brown reported this incident to his superiors, and requested that Smith be transferred to the Middle School. Also, several teachers reported to Brown that they saw Smith taking pictures of a Regents examination. Brown called Smith down to his office to discuss this allegation, and asked him if he did, in fact, take such pictures. Smith denied this. Smith felt slandered by this incident. . Smith also learned that Brown asked two teachers about whether Smith helped them clear calculators for students during a State examination. Also, a teacher observed Smith’s handwriting on a student’s take-home examination. Smith maintains that he only helped the student with general concepts. Ricca and another teacher, Kristen Burban, who is white, met with the student and asked him why Smith’s handwriting was on his test. 3. The Transfer from the High School to the Middle School In August 2010, Smith was transferred to the Middle School. Smith was not docked pay. On August 23, 2010, Banyon sent Smith a letter outlining the reasons for his transfer. Banyon suggested that Smith speak with his union representative. Smith met with Banyon, Nehlsen, union President Michelle Thomson, and union representative Natasha Green. Smith was advised that he was being transferred because he was insubordinate to Brown and because he did not teach his students how to use the graphing calculator. Smith filed a grievance about the transfer, and attended a related arbitration hearing. Thompson and a labor specialist from the New York State United Teachers represented Smith at this arbitration. Smith had the opportunity to explain his version of events at the arbitration. The arbitrator upheld Smith’s transfer to the Middle School, but ruled that Smith could request to transfer back to the High School after three years so long as he completed training regarding the graphing calculator. Once Smith arrived at the Middle School, he assumed the schedule of Jeff Furman, the white teacher that he replaced. Furman was only assigned to teach one honors class. The following year, Smith was given an honors class with only 11 students. Smith believes he was purposely given a small class in further retaliation for his allegations, and because he is Black. After transferring to the Middle School, Smith resigned from his position supervising after-school detention. Smith resigned from this position because he did not enjoy having students ask him why he was transferred to the Middle School. E. Procedural History In August 2010, Besson filed an EEOC complaint against the District for racial discrimination and retaliation. On October 28, 2010, Smith filed an EEOC complaint against the District for racial and gender discrimination. In September 2011, Besson filed his second EEOC complaint alleging racial discrimination and retaliation by the District. As noted above, on December 7, 2011, the Plaintiffs brought this complaint and lawsuit. Benedith brings claims for a hostile work environment on the basis of race; race discrimination and retaliation on the basis of race in violation of the 42 U.S.C. § 1981; the NYSHRL; the NCHRL; and the Equal Protection Clause of the United States Constitution under 42 U.S.C. § 1983. As Benedith did not file a charge of discrimination with the EEOC, she does not bring her claims pursuant to Title VII. Besson brings claims for a hostile work environment on the basis of race; race discrimination and retaliation on the basis of race in violation of Title VII; the 42 U.S.C. § 1981; the NYSHRL; the NCHRL; and the Equal Protection Clause of the United States Constitution under 42 U.S.C. § 1983. Besson also claims that the Defendants violated his constitutional rights of freedom of speech, as protected by the First Amendment to the United States Constitution, by retaliating against him for his speech on matters of public concern and his complaints of racial discrimination. Besson also claims that the Defendants deprived him of his “right to privacy” in his educational decisions for his children, as secured by the Fourteenth Amendment to the United States Constitution, by (1) retaliating against him for his decision to send his daughter to a private school and (2) his questioning the means by which his son was being educated. Smith brings claims for a hostile work environment on the basis of race and race discrimination in violation of the Title VII; 42 U.S.C. § 1981; the NYSHRL; the NCHRL; and the Equal Protection Clause of the United States Constitution under 42 U.S.C. § 1983. In addition, Smith claims that the Defendants violated his constitutional rights of freedom of speech, as protected by the First Amendment to the United States Constitution, by retaliating against him for his perceived speech on matters of public concern. Before the Court addresses the Plaintiffs’ respective claims, the Court sets forth a few preliminary matters applicable to each of them. First, the Plaintiffs do not specify whether they are suing the individual defendants in their official capacities or in their personal capacities. “The Supreme Court has explained that personal-capacity suits seek to impose personal liability upon a government official for actions he [or she] takes under color of state law whereas official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent.” Davis v. Cnty. of Nassau, 355 F.Supp.2d 668, 675 (E.D.N.Y.2005) (citation and quotation marks omitted). The Plaintiffs’ request for monetary damages, the Defendants’ affirmative defenses, and the parties’ briefs on these motions all seem to be based on the assumption that the claims against the individual defendants are in their personal capacities. Marino v. Mobilia, 94 CV 5003(SJ), 1996 WL 748353, at *2 n. 2 (E.D.N.Y. Dec. 11, 1996). Therefore, the Court assumes that the claims brought against the individual defendants are brought against them in their personal capacities. Second, the NCHRL does not provide a right of action and, therefore, those claims are dismissed. Kohutka v. Town of Hempstead, 994 F.Supp.2d 305, 330-31 (E.D.N.Y.2014) (citing Chesney v. Valley Stream Union Free Sch. Dist. No. 05 CTV 5106(DRH)(ETB), 2007 WL 1288137, at *4 (E.D.N.Y. Apr. 30, 2007)), reconsideration denied, 2 F.Supp.3d 378, 11-CV-1882 (ADS)(WDW), 2014 WL 814931 (E.D.N.Y. Mar. 3, 2014). II. DISCUSSION A. The Legal Standard on Summary Judgment Summary judgment may not be granted unless all of the submissions taken together “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the court must view all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor. Nunn v. Mass. Cas. Ins. Co., 758 F.3d 109, 114 n. 4 (2d Cir.2014). Once the moving party has asserted facts showing that the non-movant’s claims cannot be sustained, the opposing party must set out specific facts showing a genuine issue for trial, and cannot rely merely on allegations or denials contained in the pleadings. See Fed.R.Civ.P. 56(c); accord Fabrikant v. French, 691 F.3d 193, 205 (2d Cir.2012). “[Cjonclusory statements, conjecture, and inadmissible evidence are insufficient to defeat summary judgment.” Ridinger v. Dow Jones & Co. Inc., 651 F.3d 309, 317 (2d Cir.2011) (citation omitted). In cases involving claims of employment discrimination, “an extra measure of caution is merited” in granting summary judgment because “direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir.2006) (citation omitted). Nonetheless, “a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment.” Holcomb v. Iona Coll., 521 F.3d 130,. 137 (2d Cir.2008). Ultimately, the test for summary judgment is whether “a reasonable jury could return a verdict for the nonmoving party.” Nunn, 758 F.3d at 114 n. 4 (citation omitted). B. Are the Plaintiffs’ NYSHRL Claims Barred by the Notice of Claim Statute? Employment discrimination claims that are brought against a school district, board of education, or school officer are subject to the notice of claim requirements contained in Education Law § 3813(1). New York Education Law § 3813 states that no action shall proceed against a school district unless “it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action ... is founded was presented to the governing body of said district or school within three months after the accrual of such claim.” Compliance with this requirement is a condition precedent to suit. See Putkowski v. Warwick Valley Cent. Sch. Dist., 363 F.Supp.2d 649, 653-54 (S.D.N.Y.2005). In this case, the Plaintiffs concede that they have not filed notices of claim on the District, nor on the Individual Defendants, and expressly forgo any claims under the NYSHRL against the District. Under the New York Education Law, the term “school officer” is defined as follows: The term “school officer” means a clerk, collector, or treasurer of any school district; a trustee; a member of a board of education or other body in control of the schools by whatever name known in a union free school district, central school district, central high school district, or in a city school district; a superintendent of schools; a district superintendent; a supervisor of attendance or attendance officer; or other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system. Education Law § 2(13). “Based upon this definition, it is obvious that Superintendent [Hunderfund] is a school officer.” Carlson v. Geneva City Sch. Dist., 679 F.Supp.2d 355, 367 (W.D.N.Y.2010). Therefore, no claims under the NYSHRL may proceed against Hunderfund. On the other hand, the Court determines that neither Brown nor Romano are school officers. “In that regard, this Court is aware of only [three] district court decisions which have interpreted the term ‘school officer’ in connection with § 3813(1), and [all three] concluded that a school principal is not a school ‘officer,’ as defined by the Education Law.” Id.; see Spencer v. City of New York, No. 06 Civ. 2852(KMW), 2007 WL 1573871, at *3 (S.D.N.Y. May 30, 2007)(notice of claim provision in § 3813(1) does not apply to school employees who are not school officers within the meaning of the statute); Richards v. Calvet, No. 99 Civ. 12172(RJH)(MHD), 2005 WL 743251, at *13 (S.D.N.Y. Mar. 31, 2005)(notiee of claim under § 3813(1) was not required before suing school principal, who was not a school officer within the meaning of § 3813(1)). As in Carlson, this Court agrees that a principal is not a “school officer” under § 3813(1). The Court finds the following reasoning in Carlson to be persuasive: In the first place, it is clear that a principal is not an officer of a board of education. Moreover, although a princi- • pal is the administrative head of a particular school, such position is not a district-wide office. Further, the statutory text of § 3813(2) indicates that administrators, teachers, and other school employees are not included within the scope of § 3813(1): “Notwithstanding anything to the contrary hereinbefore contained in this section, no action or special proceeding founded upon tort shall be prosecuted or maintained against any of the parties named in this section or against any teacher or member of the supervisory or administrative staff or employee .... ” Education Law § 3813(2) (McKinney 2009)(emphasis added). Such wording indicates that administrators, teachers, and other school employees, are not covered by § 3813(1). Accordingly, a principal is not an “officer of a school district.” Carlson, 679 F.Supp.2d at 367. Therefore, with regard to Brown and Romano, the Court finds that the Plaintiffs were not required to comply with the notice and pleading requirements of § 3813(1) and the Plaintiffs’ NYSHRL claims may proceed against them. Whether Ricca, as the District’s Mathematics Chairperson, qualifies as a “school officer” presents a question of first impression. Upon review of the record, the Court finds, as a matter of law, that the Mathematics Chairperson is a district-wide office “whose duties generally relate to the administration of affairs connected with the public school system.” Accordingly, the Court holds that Ricca is a “school officer” within the meaning of the Education Law. Therefore, the Plaintiffs’ failure to serve Ricca with a notice of claim precludes their NYSHRL claims against her. C. Benedith’s Claims 1. The Race-Based Hostile Work Environment Claims Benedith first alleges that the Defendants caused or perpetuated a hostile work environment on the basis of race in violation of Section 1981, Section 1983, the Equal Protection clause, and the NYSHRL. The standard for showing a hostile work environment under Section 1981, Section 1983, the Equal Protection Clause, and the NYSHRL is essentially the same. Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir.2006)(“[Section] 1983 and the Equal Protection Clause protect public employees from various forms of discrimination, including hostile work environment ... on the basis of gender. Once action under color of state law is established, the analysis for such claims is similar to that used for employment discrimination claims brought under Title VII .... ”); see also Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 19 n. 4 (2d Cir.2014) (“The same standards apply to the plaintiffs’ hostile environment claims arising under the NYSHRL, and to their claims arising under 42 U.S.C. § 1981.”) (citations omitted). In general, to prevail on a hostile work environment claim, a plaintiff must show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.2000) (internal quotations omitted)(superseded by statute on other grounds, Local Civil Rights Restoration Act of 2005, N.Y.C. Local Law No. 85). In addition, to succeed on a hostile work environment claim against an employer, the plaintiff must show that “a specific basis exists for imputing the conduct that created the hostile environment to the employer.” Petrosino v. Bell Atlantic, 385 F.3d 210, 221 (2d Cir.2004)(internal quotations omitted). While single incidents of harassment generally do not create a hostile work environment, a plaintiff may nevertheless avoid summary judgment in a case involving a single instance of harassment by showing that it was “extraordinarily severe.” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir.2000)(quoting Cruz, 202 F.3d at 570). Furthermore, an adverse employment action is not always required to sustain a hostile work environment claim. See Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir.2001)(“Whereas other disparate treatment claims may scrutinize discrete harms such as hiring or discharge, a hostile work environment claim analyses] a workplace environment as a whole.”); cf. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)(no demonstration of “injury” required for a hostile work environment claim). The Court first addresses whether triable issues of fact exist as to the presence of a hostile work environment on the basis of race and then each of the Defendants’ potential liability. Here, the Court concludes that Benedith has presented sufficient evidence—largely based on the acts of Brown—of the presence of a hostile work environment directed at Benedith on the basis of her race. Between 2008 and 2011, while Benedith was an Assistant Principal at the High School, Brown regularly called her “nigger.” Given the f