Opinion of the Court by Chief Justice MINTON.
Michael St. Clair was convicted of capital murder and sentenced to death. On appeal, this Court affirmed his capital murder conviction but reversed his death sentence and remanded the case to the trial court for a new capital sentencing trial. Following the new sentencing trial, St. Clair was again sentenced to death. This appeal followed.
St. Clair v. Commonwealth, 140 S.W.3d 510, 572 (Ky. 2004). We will occasionally refer to our opinion on St. Clair's first appeal of his capital murder conviction and death sentence as " St. Clair I" for the sake of clarity.
We now must reverse the death sentence imposed following the new sentencing trial because the trial court failed to comply with this Court's directive to follow the statutory language in instructing the jury on the applicable aggravator required to support a death sentence. The trial court instead fashioned an erroneous jury instruction that deprived St. Clair of his right to a unanimous verdict. Although we reverse solely on this issue, we also address other issues raised in this appeal that are likely to recur upon remand.
I. FACTS.
The facts underlying St. Clair's murder conviction appear in detail in our opinion on his first appeal. Briefly summarized, the facts are that St. Clair and a co-defendant, Dennis Reese, were indicted for the 1991 murder of Frank Brady in Bullitt County, Kentucky.
Brady was shot and killed just a few weeks after St. Clair and Reese escaped from an Oklahoma jail where St. Clair was awaiting sentencing after a jury there convicted him of two murders. During the weeks between the escape and Brady's murder, St. Clair and Reese travelled widely across the southwestern United States on a crime spree that included the kidnapping and murder of Timothy Keeling. Eventually, they reached Hardin County, Kentucky, where they kidnapped Frank Brady and took his pickup truck. Reese and St. Clair set fire to Keeling's truck to destroy incriminating evidence and took Brady into a secluded area of Bullitt County, where he was shot execution-style. Soon after this murder, a Kentucky state trooper stopped Reese and St. Clair in Brady's vehicle in Hardin County; and St. Clair fired shots at the trooper's vehicle. Reese and St. Clair fled the scene and soon parted ways.
Id. at 524.
St. Clair was tried in Hardin County for various offenses, including attempted murder, arson, and capital kidnapping. He was found guilty and sentenced to death by the Hardin Circuit Court. We reversed and remanded due to various errors in St. Clair v. Common-wealth, 174 S.W.3d 474 (Ky. 2005) (Hardin County case).
After St. Clair and Reese were jointly indicted in Bullitt County for Brady's murder, Reese pled guilty and agreed to testify against St. Clair. St. Clair pled not guilty, and a trial ensued in which St. Clair testified and claimed an alibi defense. The primary factual issue at trial was whether Brady had been killed by St. Clair, Reese, or an unidentified accomplice. The jury convicted St. Clair of the murder, and the trial court sentenced St. Clair to death in accordance with the jury's recommendation. Although we affirmed the conviction, we remanded for a new capital sentencing phase trial.
St. Clair I, 140 S.W.3d at 524-25.
II. WE MUST REVERSE BECAUSE TRIAL COURT ERRED IN NOT CONFORMING WITH STATUTORY LANGUAGE IN INSTRUCTING JURY ON AGGRAVATOR.
This case must be reversed and sent back again for re-sentencing because the trial court failed to comply with this Court's clear directive to instruct the jury on the germane aggravating circumstance in conformance with the statutory language describing this aggravating circumstance. In St. Clair I, we reversed because the trial court failed to instruct the jury on the availability of life without parole (LWOP) as a sentencing option. St. Clair I also addressed other issues likely to recur on remand, including proper jury instructions concerning the statutory aggravating circumstance at issue here, which is described in Kentucky Revised Statutes (KRS) 532.025(2)(a)(1): "[t]he offense of murder or kidnapping was committed by a person with a prior record of conviction for a capital offense. . . ." Specifically, we directed the trial court to follow this statutory language in instructing the jury on this aggravator.
We recognize that KRS 532.025(2)(a)(1) also recognizes another aggravator for cases where "the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions!,]" which is not at issue before us now.
Si. Clair I, 140 S.W.3d at 571.
In the first appeal, St. Clair argued, "that the trial court's capital sentencing phase jury instructions erroneously reformulated the KRS 532.025(2)(a)(1) aggravating circumstance." The trial court's instruction on aggravating circumstances in the penalty phase of the first trial stated as follows:
Id. at 563.
In fixing a sentence for the Defendant for the offense of murder, you shall consider the following aggravating sentence which you may believe from the evidence beyond a reasonable doubt to be true:
1. The Defendant has a prior record of conviction for murder, a capital offense.
And this Court concluded, "[g]iven our construction of the KRS 532.025(2)(a)(1) aggravating circumstance, we agree with [St. Clair's] contention that the trial court's articulation of that aggravating circumstance changed its meaning." In the opinion, we explained that the statutory language required that the defendant actually have the prior record of conviction for a capital offense at the time the instant offense of murder (or kidnapping) was committed: "We find KRS 532.025(2)(a)(1) susceptible to but one natural and reasonable construction: the aggravating circumstance is implicated only when the defendant has already been convicted of a capital offense prior to the commission of the present capital offense." This Court directed that: "Upon remand, the trial court should instruct the jury in accordance with the statutory language, i.e. `the murder was committed by a person with a prior record of conviction of a capital offense.`" Now, despite our directive to follow the statutory language of KRS 532.025(2)(a)(1), we again face an improper jury instruction on the same aggravating circumstance.
Id. at 571.
Id. at 568.
Id. at 571.
This time, the trial court's instruction asked the jury to determine whether the following aggravator was established: "[t]he murder was committed by the Defendant and the Defendant has a prior record of conviction of murder, a capital offense." As St. Clair argues, this instruction did not require the jury to find that St. Clair had a capital conviction at the time the Brady murder was committed. This issue was properly preserved in the second sentencing trial by St. Clair's tendering a jury instruction that tracked precisely the statutory language of KRS 532.025(2)(a)(1):
In fixing a sentence for the Defendant for the offense of Murder, you shall consider the following aggravating circumstance which you may believe from the evidence beyond a reasonable doubt to be true:
(1) The offense of murder was committed by a person with a prior record of conviction for a capital offense.
This Court explained in the first appeal that the statutory language required that the defendant actually have the prior record of conviction for a capital offense at the time the instant offense of murder (or kidnapping) was committed.And we agree with St. Clair that the trial court's instruction at issue in this appeal could erroneously allow a jury to find this aggravating factor even if the defendant did not have a prior record of conviction of a capital offense at the time the instant offense was committed but, simply, had accrued such a prior record of conviction by the time of trial. Because the jury was presented with evidence of many convictions for capital offenses, some of which predated the commission of the Brady murder and some of which did not, one cannot determine whether the jury based its finding of this aggravator on a qualifying or a non-qualifying conviction. So the trial court's instruction not only failed to follow this Court's explicit directive following the first appeal, but the instruction, as given, deprived St. Clair of his right to a unanimous verdict. And "the denial of a unanimous verdict — where the error is properly preserved — is not subject to a harmless error analysis."
Id. at 568 ("We find KRS 532.025(2)(a)(1) susceptible to but one natural and reasonable construction: the aggravating circumstance is implicated only when the defendant has already been convicted of a capital offense prior to the commission of the present capital offense.")
Burnett v. Commonwealth, 31 S.W.3d 878, 883 (Ky. 2000).
As Justice Scott points out in his dissent on this issue, at first glance, it may appear that we approved a similarly worded instruction in our opinion reversing St. Clair's Hardin County capital kidnapping conviction, despite our disapproval of the instruction given by the trial court in this appeal and the previous appeal of the Bullitt County murder conviction. In the Hardin County case, we authorized the trial court to instruct the jury on the aggravator at issue; and, despite any imprecise language, we did not intend to retreat from the direction to follow statutory language in fashioning an instruction on this aggravator, which we clearly made in our opinion on the original appeal in St. Clair's Bullitt County murder case. We note that a possible inconsistency was not raised by the parties in the case now before us.
See Hardin County case, 174 S.W.3d at 483 ("The second part of instruction number 3 was correct. The trial court properly concluded that St. Clair had a prior record of conviction for Murder, a capital offense." Id. at 481.
Any apparent inconsistency between our resolutions of jury instruction issues in the Hardin County case versus the Bullitt County case must be resolved in favor of enforcing the directions we gave to the Bullitt Circuit Court upon remand in the original appeal in this case, however. Our 2005 opinion in the Hardin County kidnapping appeal was rendered after our 2004 opinion in the original appeal of the present case and explicitly took note of our resolution of this issue. But our opinion in the Hardin County appeal did not overrule, limit, or modify in any way our opinion rendered in the original appeal in this case. So it is obvious that despite our unfortunately imprecise language, we did not intend for there to be any discrepancy between those opinions. Instead, we merely intended to inform the Hardin Circuit Court upon remand that it could properly instruct the jury to consider whether it found the aggravating circumstance identified in KRS 532.025(2)(a)(1) ("The offense of murder or kidnapping was committed by a person with a prior record of conviction for a capital offense"). The propriety of offering such an instruction on this particular aggravator was supported by evidence of qualifying convictions of capital offenses, namely the 1991 murder convictions.
Id. at 483-84, citing St. Clair I, 140 S.W.3d at 568-71 (noting holdings in original appeal that aggravator at issue was not unconstitutionally vague, that directed verdict motion on this aggravator was properly denied, and that a jury's verdict of guilt was sufficient "prior record of conviction for a capital offense.").
In stating that "[a]s a matter of law, St. Clair had two prior capital convictions for the 1991 murders before he committed the kidnapping[,]" we perhaps inartfully tried to state that any finding of the aggravator at issue could be based upon evidence of the 1991 murder convictions (and perhaps implicitly suggested that such a finding could not be based upon evidence of the 1994 murder convictions). Obviously, while reversing St. Clair's Hardin County capital kidnapping conviction on other grounds, we tried briefly to offer some guidance on penalty phase jury instructions in our opinion in that case, covering three different aggravators in just a few pages and not explicitly discussing how the trial court should deal with the 1994 murder convictions in its penalty phase instructions.
Hardin Country case, 174 S.W.3d at 484.
See id. at 481-84.
To the extent that the guidance concerning penalty phase instructions provided to the Hardin Circuit Court in the capital kidnapping case might seem inconsistent with the more specific analysis and directions given to the Bullitt Circuit Court in our opinion on the first appeal of this case, obviously, the more specific analysis and directions provided given to the same trial court (the Bullitt Circuit Court) must prevail. In other words, the Bullitt Circuit Court was not excused from following our previous clear directions to it by any failure of ours to provide similarly specific and explicit directions on remand to a different trial court in a different case involving the same defendant.
Although the members of this Court may well conclude from our own review of the evidence that the statutory aggravator is adequately proven, the United States Supreme Court has made clear that such a judicial finding of an aggravator does not satisfy Constitutional Rather, such a finding must be made by a properly instructed jury to satisfy the Sixth Amendment. Thus, with all due respect to our dissenting colleagues, we cannot affirm a death sentence based upon a finding of harmless error where the jury has not properly been instructed.
Ring v. Arizona, 536 U.S.584, 609, 122 S.Ct.2428, 153 L.Ed.2d 566 (2002) (holding that the Sixth Amentment requires that jury not sentencing judge, must find aggravating factors that would subject defendant to imposition of death penalty because such aggravating factors "operate as `the functional equivalent of an element of a greater offense. . . .").
In addition to the statutory definition of the aggravator at issue, St. Clair's tendered instruction in the second sentencing trial also instructed the jury that: "You are further instructed that the Defendant's convictions in Choctaw County, Oklahoma[,] in 1994 (CRF-90-145) do not meet the statutory criteria for consideration as an aggravating circumstance." We reject St. Clair's proposal for this additional language.
The better course would be to identify specifically the one or more convictions that could qualify as a "prior record of conviction for a capital offense" to avoid any possibility that the jury's verdict is not unanimous. For example, a proper instruction could read:
In fixing a sentence for the Defendant for the offense of Murder, you shall consider the following aggravating circumstance, which you may believe from the evidence beyond a reasonable doubt to be true:
(1) The offense of murder was committed by a person with a prior record of conviction for a capital offense: the September 1991 Murray County, Oklahoma, conviction for the first-degree murder of William Henry Kelsey, Jr.
By specifically identifying qualifying convictions that can be used as aggravators, the trial court ensures that the jury may not rely on convictions that could not qualify. In the present case, for instance, the 1994 Choctaw County, Oklahoma, convictions for the first-degree murders of Mary Louise Smith and Edward Jefferson Large would not qualify because those convictions occurred after Brady's murder. In the analogous situation of persistent felony offender jury instructions, specific felony convictions are identified to ensure that the jury has relied on a felony conviction qualified for PFO considerations. For example, 1 COOPER, KENTUCKY INSTRUCTIONS TO JURIES (CRIMINAL) § 12.29 recommends that part of a second-degree persistent felony offender jury instruction would instruct a jury to find whether:
A. That prior to (date of present offense), the Defendant was convicted of ___ (ID felony) by final judgement
of the ___ (ID court) on ___ (date-2 [of judgment]).
To avoid any possibility that the jury has relied upon a non-qualifying conviction in finding the aggravator at issue here, we hold that in this case and in any similar future cases, the jury instruction must require the jury specifically to identify the conviction that the jury uses to find this particular aggravator: "[t]he offense of murder or kidnapping was committed by a person with a prior record of conviction for a capital offense. . . ."
KRS 532.025(2)(a)(1).
Because the trial court's instruction on the particular statutory aggravator at issue here did not follow this Court's specific directive to conform to the statutory language and did not ensure that a finding of the aggravator was unanimously made by the jury based on a qualifying prior conviction for a capital offense, we must vacate St. Clair's death sentence and remand for resentencing.
III. WE ADDRESS OTHER ISSUES LIKELY TO RECUR UPON REMAND.
A. Trial Court, was not Required to Give Instruction on Non-Statutory Mitigation Factor of Brain Damage.
St. Clair contends the trial court committed reversible error in not instructing the jury that it must consider the non-statutory mitigating factor of his alleged brain damage. To that end, he tendered an instruction that required the jury to consider brain damage as a factor in mitigation. He acknowledges that the trial court's mitigation instruction did ask the jury to consider whether the statutory mitigation factor of mental illness or retardation or intoxication was shown even though he contends there was no proof on these factors. But he argues that the trial court's instruction may have led jurors to believe they were prohibited from considering his brain damage as a mitigating factor. Having reviewed the trial court's mitigation instruction, however, this Court rejects the argument that the trial court's instruction prohibited the jury from considering St. Clair's claimed brain damage. The instruction explicitly allowed the jury to consider "such mitigating or extenuating facts and circumstances as have been presented to you in the evidence as you believe to be true." Although brain damage not resulting in mental illness or retardation was not explicitly mentioned in the instruction, this Court, nonetheless, disagrees with St. Clair's argument that this instruction prohibited the jury from considering such evidence as mitigation. In fact, the instruction would allow the jury to consider a broad range of extra-statutory factors as mitigation. Precedent states that "[t]here was no need to instruct on any specific nonstatutory mitigators" where the trial court gave a similarly broad instruction on mitigation.
The trial court's instruction on "Mitigating Circumstances" stated as follows:
In fixing a sentence for the Defendant for the offense of MURDER, you shall consider such mitigating or extenuating facts and circumstances as have been presented to you in the evidence as you believe to be true. You shall consider those aspects of the Defendant's character, and those facts and circumstances of the particular offense of which he has been found guilty, which you believe from the evidence to be true.
You shall also consider whether:
At the time of the capital offense, the capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental illness or retardation or intoxication even though the impairment of the capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law is insufficient to constitute a defense to the crime.
Some authority seems to recognize that brain damage not resulting in mental retardation or legal insanity may be considered as a mitigating factor but does not demand that this factor be given much weight. See, e.g., Robinson v. Stale, 761 So.2d 269, 277 (Fla. 1999) (upholding death sentence and finding no abuse of discretion in trial court's considering, but giving little weight to, expert evidence that defendant had suffered brain damage because of lack of evidence that brain damage led to crime)
In closing argument, defense counsel urged the jury to take into consideration evidence of St. Clair's brain damage.
Tamme v. Commonwealth, 973 S.W.2d 13, 37 (Ky. 1998) ("The instruction on mitigating circumstances included the catchall provisions, `any other circumstance or circumstances arising from the evidence which you, the jury, deem to have mitigating value,' and `those aspects of the defendants' character and the facts and circumstances of the offense about which he has offered evidence in mitigation.' ").
St. Clair's tendered instruction would have directed the jury to consider evidence of his brain damage as a mitigating factor. But this proposed language overstepped the bounds of proper jury instructions because the jury was not required to accept evidence of brain damage as mitigating. The jury needed to resolve (1) whether it accepted this evidence as true and, if so, then (2) whether the type of brain damage proven actually reduced St. Clair's culpability or indicated that he should not receive the death penalty. In sum, the lack of explicit mention of this particular non-statutory mitigating factor in the trial court's mitigation instruction was not error.
St. Clair's tendered instruction on mitigating circumstances stated, in pertinent part: "You are instructed to consider as a mitigating circumstance the evidence you heard concerning Michael St. Clair's brain damage. Kentucky law requires the consideration of a mitigating circumstance in situations where the capacity of the defendant to appreciate the criminality of his conduct was impaired as a result of mental illness or retardation or intoxication even though the impairment of the capacity of the defendant to appreciate the criminality of his conduct or to conform the conduct to the requirements of the law is insufficient to constitute a defense to the crime."
We decline to address St. Clair's remaining sentencing instruction issues because they were addressed by St Clair I, resolved by precedent, or are unlikely to recur upon retrial,
B. Faretta Hearing Considerations.
Because we reverse on other grounds, we decline to resolve whether, as St. Clair argues, the trial court erred by failing to conduct a Faretta' hearing while at the same time effectively allowing St. Clair to act as co-counsel. We gather from the record that there was confusion at times concerning the role that St. Clair wished for himself and his attorneys to play. At one point, he asked the trial court to designate him as "lead counsel" and referred to himself as "pro se lead counsel" in pleadings submitted to the trial court. He later withdrew the motion to be designated lead counsel. But despite his stating to the trial court that he wished to continue to be represented at trial by appointed counsel, St. Clair continued to file what he termed "pro se" motions. And St. Clair was even allowed to argue some "pro se" motions to the trial court, although he never questioned witnesses or made arguments to the jury.
In response to the Common-wealth's inquiries about whether St. Clair might wish to proceed pro se or with hybrid representation, St. Clair stated that he did not want to represent himself and that he wished to remain represented by counsel. But he apparently never directly stated whether or not he desired hybrid representation, which would entail his making a limited waiver of counsel and accepting representation only as to certain matters in the case. Whether St. Clair chooses to elect hybrid representation can be more clearly ascertained by the trial court upon remand.
Kentucky's courts, unlike some other courts, recognize that a criminal defendant may make a limited waiver of counsel and accept representation only on certain matters. Wake v. Barker, 514 S.W.2d 692 (Ky. 1974). This limited waiver of counsel is sometimes known as "hybrid representation." This Court held that where a criminal defendant desires to make a limited waiver of counsel, a " Faretta" hearing must be conducted to determine whether this limited waiver is made knowingly, voluntarily, and intelligently. Hill, 125 S.W.3d at 226-27.
In any event, upon remand, we would remind the trial court and the parties that should St. Clair make an unequivocal request to proceed pro se or with hybrid representation — in other words, to make either a full or a limited waiver of his right to counsel — under our precedent, a Faretta hearing is required.
C. Generally, Defendant's Guilt-Phase Testimony From First Trial Not Per Se Inadmissible in Resentencing Trial.
We decline to address whether the reading of transcripts of St. Clair's trial testimony from the original trial at the resentencing trial was forbidden by order or agreement because this issue is not a relevant issue on remand. But because the general admissibility of St. Clair's guilt-phase testimony from the first trial is likely to be an issue again, we will address the general question of whether a defendant's guilt-phase trial testimony may be admissible during a resentencing trial.
We held that a defendant's testimony from an earlier trial is admissible upon retrial in Sherley v. Commonwealth. As St. Clair points out, Sherley involved a retrial of the guilt phase; whereas, this case was sent back for a penalty phase trial. Regardless, St. Clair waived his Fifth Amendment rights against self-incrimination by testifying at the first trial.
Although we have not specifically addressed the admissibility of a defendant's testimony given during the guilt phase of the first trial when offered in resentencing procedures, we did set some parameters on the presentation of proof during a resentencing proceeding in Boone v. Commonwealth. We acknowledged in Boone, "common sense dictates that the second jury must be told something about what transpired during the earlier guilt phase" of the first trial when a case is remanded solely for the purposes of resentencing. So such matters as the charges in the indictment, the trial court's instructions to the jury, and the jury's verdict in the first trial should be admitted.
821 S.W.2d 813 (Ky. 1992).
Id. at 814.
For practical considerations, this Court has refrained from requiring "a complete reading to the jury of a verbatim transcript or the projection of a [full] videotaped record of the guilt phase" and has suggested that, where possible, the parties agree to present summaries of some portions of the original trial testimony. Nonetheless, while encouraging summaries for the sake of expediting resentencing trials, this Court does not require that summaries always be presented in lieu of live testimony, reading transcripts of prior trial testimony, or playing videotapes of prior trial testimony. As we recognized in a case addressing the admittedly somewhat distinct issue of what kind of evidence could be admitted upon resentencing in guilty plea cases, Boone does not establish rigid limits on the type of evidence that must be presented but recognizes broad discretion on the part of the trial court in determining the admissibility of evidence in resentencing.
Id.
Thompson v. Commonwealth, 147 S.W.3d 22, 36-37 (Ky. 2004) (in rejecting defendant's claim that prosecution was limited under Boone to provide only evidence describing the crime and its elements and his guilty plea to the crime, stating that:
"While the types of admissible evidence delineated in
Boone are guidelines for the trial court, we do not agree with Appellant that
Boone should be read as a strict limitation on the types of evidence admissible in a penalty phase trial where the defendant has pled guilty. Nor does
Boone itself purport to create such a strict limitation: the Court in
Boone provided a list of what types evidence `might be pertinent.' Here, because no guilt phase trial occurred, the types of admissible evidence set forth in
Boone alone were insufficient in this case to adequately apprise the jury of the nature of Appellant's crimes. As noted in
Boone itself, the sentencing jury cannot be expected to fix punishment `in a vacuum without any knowledge of the defendant's past criminal record or other matters that might be pertinent to consider in the assessment of an appropriate penalty.' With that principle in mind, the trial court must use its discretion in admitting relevant evidence that will sufficiently inform the jury of the crimes committed, while avoiding undue prejudice.").
(Footnotes omitted).
See also Neal v. Commonwealth, 95 S.W.3d 843, 851 (Ky. 2003) (in resentencing trial, trial court did not abuse its discretion in presenting an edited version of videotapes from the guilt phase of the first trial since parties were unable to agree on summaries in an effort to give the jury some information about the crime committed.).
Applying this same abuse-of-discretion standard that we apply in reviewing other evidentiary decisions by trial courts, we find no abuse of discretion in the trial court's denying St. Clair's motion to exclude his earlier trial testimony. Clearly, much of this testimony was relevant for providing background information on the crime; for hearing St. Clair's explanation of what had happened; and for assessing aggravating and mitigating circumstances, both statutory and non-statutory. Naturally, on remand, the parties may argue to the trial court whether specific portions of St. Clair's trial testimony should be redacted for various reasons; but, generally, we cannot say the entirety of his guilt-phase testimony from the first trial is inadmissible.
The defendant's guilt phase testimony from the first trial should not be excluded as hearsay. See Kentucky Rules of Evidence (KRE) 801(c) (defining hearsay as statements "other than one made by the declarant while testifying at the trial or hearing. . . ."); KRE 801A(b)(1) (hearsay exception for parties' own statements).
D. No Abuse of Discretion in Sustaining Objection to Reference to Executive Agreement in Opening Statement and in Excluding Executive Agreement.
St. Clair argues that the trial court erred in sustaining the Common-wealth's objection to defense counsel's mention in opening statement of a 1995 executive agreement between the then-governors of Kentucky and Oklahoma. He also seems to argue that the executive agreement should have been admitted into evidence because he contends it was relevant to mitigation. We reject both arguments.
The issue of whether the jury should be made aware of the executive agreement arose during defense counsel's opening statement. Defense counsel informed the jury that St. Clair had already received four consecutive life-without-parole sentences in Oklahoma and then stated "[y]ou will also hear that by agreement entered into in 1995, between the governors of Oklahoma and Kentucky, if you sentence Michael to anything. . . ." The Commonwealth then interrupted to request a bench conference at which it objected to any reference to the 1995 executive agreement.
The Commonwealth argued that the agreement was irrelevant to the current resentencing proceeding because the agreement did not concern St. Clair's personal culpability and arose from "an extrajudicial proceeding," which the Commonwealth contended "has no place in a judicial sentencing hearing." The defense argued it was mitigating and relevant to. whether St. Clair would pose an escape risk and further contended that the Supreme Court had accepted the interstate detainer agreement as enforceable. Defense counsel further explained that the document was not admitted into evidence in the first trial, despite defense counsel's intention to introduce it as mitigation evidence, because St. Clair declined to present mitigation evidence at the first trial. After the party's arguments, the trial court sustained without further comment the objection to the reference to the executive agreement in opening statement.
Defense counsel later introduced the 1995 executive agreement document through the avowal testimony of the Bullitt Circuit Clerk, who read portions of the agreement into the record. Rather than resubmitting the document into evidence, defense counsel referred to where the document had been placed in the written record prior to the first trial. Unfortunately, although we came across the avowal testimony itself, we are unaware of whether there was any more discussion in the trial court regarding the document's possible evidentiary value other than the previously mentioned bench conference. Having reviewed both the executive agreement itself (as presented in avowal testimony), as well as the parties' arguments concerning its evidentiary value made in the bench conference during opening statements, we conclude that the trial court properly sustained the objection to the references to the executive agreement in opening statement and excluded the executive agreement from evidence.
St. Clair's brief did not reference this avowal testimony or otherwise show where he actually preserved the issue of admissibility of this document by citing to the record to show where he tried to have the document admitted into evidence. Instead, we independently discovered this avowal testimony through our own review. Our fortuitous discovery of this avowal has enabled this Court to review the 1995 executive agreement and determine whether it might actually be relevant to sentencing. We address the issue of whether the executive agreement had any possible relevancy here in the interest of thoroughness in this death penalty appeal. As we do so, we reiterate that this Court will not search the record to discover whether issues on appeal were presented to the trial court; rather, parties must be responsible for citing to the record to show where issues are preserved for review. See, e.g., Copley v. Commonwealth, 854 S.W.2d 748, 750 (Ky. 1993) ("This Court will not search the record in order to find error which counsel has failed to present.").
Having thoroughly reviewed the parties' arguments before the trial court and the executive agreement at issue, we conclude that the trial court did not abuse its discretion in excluding the executive agreement because the document simply did not have the mitigation value asserted by St. Clair. According to St. Clair's brief, the agreement provided that if St. Clair were not sentenced to death in Kentucky, he would be returned to Oklahoma to be imprisoned in an underground maximum-security facility. However, contrary to St. Clair's arguments, the document did not guarantee that St. Clair would spend the rest of his life in an underground maximum-security prison if he did not receive a death sentence in Kentucky. In fact, although it does recite that at the time of the agreement St. Clair was serving three consecutive life-without-parole sentences in Oklahoma, it does not guarantee that he would actually be required to spend any particular amount of time in an Oklahoma prison. Rather, the agreement simply provided in which state — Kentucky or Oklahoma — St. Clair would be held in custody under certain events.
Having stated its factual and legal bases, the executive agreement clearly sets forth what the Governors of Kentucky and Oklahoma actually agreed to do:
The document begins by stating certain relevant facts leading up to the agreement: namely, the serious charges then pending against St. Clair in Kentucky courts and the fact that St. Clair was then "serving the consecutive life without parole sentences" in Oklahoma.
The document acknowledged constitutional and statutory authority for St. Clair's extradition to Kentucky: citing U.S. Const. Article IV, Section 2; 18 United States Code Annotated (U.S.C.A.) § 3182; KRS 440.220.
IT IS HEREBY AGREED by the undersigned Governor of the Commonwealth of Kentucky and the undersigned Governor of the State of Oklahoma that in the event said Fugitive [St. Clair] shall be acquitted following a trial in the courts of the Commonwealth of Kentucky, or the prosecution in the Commonwealth of Kentucky is terminated in any manner other than by the imposition of a judgment and sentence of death, fugitive shall be returned to the State of Oklahoma at the expense of the Commonwealth of Kentucky, and that the Governor, or other acting executive authority of the Commonwealth of Kentucky, shall surrender said Fugitive to the duly authorized agents for the State of Oklahoma.
IT IS FURTHER AGREED that, if such return to the State of Oklahoma occurs and said Fugitive is subsequently released from confinement by the Oklahoma Department of Corrections for any reason while continuing to have any term of imprisonment left to fulfill in the Commonwealth of Kentucky, said Fugitive shall be returned to the custody of the Commonwealth of Kentucky.
In essence, the agreement simply states that if St. Clair received any sentence less than death in Kentucky, he would be returned to custody in Oklahoma. If returned to Oklahoma and then released from custody there, he would then be returned into Kentucky's custody if he still had any term of imprisonment left to fulfill in Kentucky.
Even accepting for the sake of argument that lessened escape risk is a valid factor in mitigation under a broad definition of this term the agreement does not have mitigation value. Other than its reference to St. Clair's serving multiple life-without-parole sentences in Oklahoma, a fact that was abundantly established in other evidence, this Court finds no indication that the executive agreement is relevant to the degree of escape risk because it does not guarantee the length of imprisonment or degree of security of the facility. The document is certainly not relevant to a stricter definition of mitigation relating to a defendant's personal culpability. This Court has declined in the past to adopt a definitive definition of mitigation and has no need to adopt one now. But even under a broad definition of mitigation evidence, this executive agreement does not qualify as mitigation evidence. Because the document was not relevant for the purposes argued by St. Clair to the trial court, the trial court did not abuse its discretion in excluding it nor in sustaining the objection to defense counsel's reference to the document in opening statement.
E.
Trial Court Within Its Authority to Deny Allocution.
BLACK'S LAW DICTIONARY (8th ed. 2004) offers two definitions of mitigating circumstance relevant in the context of criminal law. The second-listed, broader definition is "[a] fact or situation that does not bear on the question of a defendant's guilt but that is considered by the court in imposing punishment and esp. in lessening the severity of a sentence." But see Jacobs v. Commonwealth, 870 S.W.2d 412, 419 (Ky. 1994) (indicating that mitigating circumstances should not be overly broadly defined but, generally, refer to defendant's character or record, circumstances of the offense, or statutorily listed mitigating circumstances).
If the executive agreement was offered only to show that St. Clair was already subject to multiple life without parole sentences, the trial court could properly exclude it as "needless presentation of cumulative evidence" under KRE 403.
BLACK'S LAW DICTIONARY (8th ed. 2004) offers first a stricter definition of mitigating circumstance relating to the defendant's culpability: "[a] fact or situation that does not justify or excuse a wrongful act or offense but that reduces the degree of culpability and thus may reduce the damages (in a civil case) or the punishment (in a criminal case)." See also Jacobs, 870 S.W.2d at 419 ("KRS 532.025 is more expansive in that it spells out eight circumstances of mitigation that are relevant, and it contains a catchall provision, `any mitigating circumstances otherwise authorized by law.' This provision would permit the trial court to submit redeeming evidence to the jury. However, we believe the evidence must contain facts or a qualified opinion bearing on the defendant's character, prior record or circumstances of the offense, or relative to one of the specified statutory mitigating circumstances.").
See Tamme, 973 S.W.2d at 38, quotingWaters v. Thomas, 46 F.3d 1506, 1528 (11th Cir. 1995) (jury instructions are not constitutionally required to define "`the concept of mitigation or the function of mitigating circumstances.'")
See KRE 402 ("Evidence which is not relevant is not admissible."). Perhaps if the document did guarantee that St. Clair would never be released from prison or would remain in an especially secure area, the document might have some relevance to the determination of a proper sentence. Of course, this possible relevancy would not necessarily mean that the document would be admissible because the trial court might still face other issues, such as whether the document was properly authenticated, duplicative of other evidence, or no longer of binding effect. See, e.g., KRE 403 (exclusion of otherwise relevant evidence on grounds of undue prejudice, confusion, or waste of time); KRE 901 (authentication requirements).
See Mills v. Commonwealth, 310 Ky. 240, 243, 220 S.W.2d 376, 378 (1949) (opening statements should not refer to clearly inadmissible matters).
St. Clair argues that the trial court failed to accord him his right directly to address the jury in mitigation of punishment. Through counsel, St. Clair filed a pretrial motion requesting to "to make allocution to the jury. . . ." Citing BLACK'S LAW DICTIONARY, he has defined allocution as an unsworn statement to the sentencing judge or jury. And he quotes Green v. United States: "The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself."But Green concerned a federal defendant's right under a federal criminal procedural rule to make such an unsworn statement to the trial court judge. That case is inapplicable to St. Clair's request to make an unsworn statement to the jury, who, here, would make a sentencing recommendation but would not impose final sentence.
SEE BLACK'S LAW DICTIONARY (8th ed. 2004), defining allocution, generally, as "[a]n unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the impending sentence. This statement is not subject to cross-examination."
365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961).
Id. at 304, 81 S.Ct. 653. St. Clair also generally cites Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), as authority supporting a right to allocution, although he does not specifically identify where the United States Supreme Court addresses allocution in its decision; and we have been unable to find any specific references to allocution in that case.
He also cites Section 11 of the Kentucky Constitution's right to be heard by himself and counsel and argues that Oregon has interpreted a similar provision in its constitution to establish a right for the defendant to an allucatory address to the jury in a sentencing proceeding However, we have not interpreted Section 11 of the Kentucky Constitution as establishing an inviolate right to allocute to the jury in a sentencing proceeding, but only as establishing rights to hybrid counsel. Rather, we have recognized that the trial court's broad discretion to conduct orderly proceedings might allow the trial court to allow or disallow allucatory statements to the jury.
He also cites, inter alia, Ky. Const. § 26 pronouncing the Kentucky Bill of Rights inviolate and any law in violation of the Bill of Rights void.
See State v. Rogers, 330 Or. 282, 4 P.3d 1261, 1270-72 (2000) (interpreting Oregon constitutional provision establishing right "to be heard by himself and counsel" to permit allocution to jury but recognizing broad discretion of trial court to establish limits on content and duration of statement).
Furnish v. Commonwealth, 267 S.W.3d 656, 663 (Ky. 2007).
Id. at 664.
Because we have found no right of allocution to the jury under our Kentucky Constitution or other authority and because the trial court had broad discretion in the conduct of its proceedint caution in granting summary judgment for the employer. Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). Naturally, where an employer has acted with discriminatory intent, direct evidence of that intent will only rarely be available, thus "affidavits and depositions must be carefully scrutinized for circumstantial proof, which, if believed, would show discrimination." Id. (quoting Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994)). Even in the discrimination context, however, a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment. Id.
DISCUSSION
A. Defendant City of New York
In her Complaint, Plaintiff asserts that "The New York City Board of Education has subsequently become an agency of the City of New York and is now known as The New York City Department of Education." (Compl. at 2 n. 1.) However, Defendants correctly note that the City is a separate and distinct legal entity from DOE, Plaintiff's actual employer. It is well-settled that "the City cannot be liable for the acts of DOE or its employees." Moore v. City of New York, No. 08 Civ. 8879, 2010 WL 742981, at * 5, 2010 U.S. Dist. LEXIS 19183, at *15-16 (S.D.N.Y. Mar. 2, 2010); see also Falchenberg v. New York City Dep't of Educ., 375 F. Supp. 2d 344, 347 (S.D.N.Y. 2005); Fierro v. City of New York, 591 F. Supp. 2d 431, 446 (S.D.N.Y. 2008) (rev'd in part on other grounds, 341 Fed. App'x 696 (2d Cir. July 27, 2009).)
As DOE — not the City — is the appropriate Defendant, and there being a clear identity of interest between the two, the City is dismissed and DOE substituted sua sponte. See Fed.R.Civ.P. 21 ("On motion or on its own, the court may at any time, on just terms, add or drop a party."); see also Ciancio v. Gorski, No. 98-CV-0714E, 1999 WL 222603, at *1, 1999 U.S. Dist. LEXIS 5136, at *3 (W.D.N.Y. Apr. 14, 1999) (citing Cinemotion NV v. Lorimar-Telepictures Corp., 1989 WL 120083, at *6, 1989 U.S. Dist. LEXIS 11689, at *6 (S.D.N.Y. Oct. 5, 1989). In the analysis set forth below, the Court construes Plaintiff's claims against the City as if brought against DOE. Cf. Pinckney v. New York City Police Dep't, Nos. 01-CV-2437, 01-CV-6515, 2005 WL 282870, at *1 n. 2, 2005 U.S. Dist. LEXIS 1651, at *2 n. 2 (E.D.N.Y. Feb. 3, 2005).
B. Plaintiff's Section 1981 claims are dismissed
Plaintiff does not oppose that portion of Defendants' motion seeking dismissal of her claims brought against Cimino pursuant to 42 U.S.C. § 1981. ( See Pl.'s Mem. at 2.) Moreover, Plaintiff has not demonstrated that she was a victim of racial discrimination because of any municipal policy, practice, or custom as required by Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690-95 (1978). Accordingly, Plaintiff's § 1981 claims are dismissed.
C. Plaintiff's hostile work environment claim
To prevail on a hostile work environment claim a plaintiff must show that: (1) the work place was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of her work environment; and (2) a specific basis exists for imputing the conduct that created the hostile environment to the employer. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). The plaintiff must demonstrate that her work environment was both objectively and subjectively hostile. See Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir. 2001). In other words, the conduct must be severe or pervasive enough to reasonably perceive the environment as hostile or abusive, and the plaintiff must in fact perceive such an environment. Schwapp, 118 F.3d at 110.
Courts consider the totality of the circumstances to determine whether a work environment is hostile. Harris, 510 U.S. at 23. These circumstances include the discriminatory conduct's frequency and severity, whether the conduct is physically threatening or humiliating, and whether the conduct unreasonably interferes with the plaintiff's work performance. Id. Furthermore, to establish a hostile work environment claim a plaintiff must show "more than a few isolated incidents of [discriminatory] enmity." Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986) (citations omitted). A "`mere utterance of an . . . epithet which engenders offensive feelings in an employee' does not sufficiently affect the conditions of employment to implicate Title VII." Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank, FSV v. Vinson, 477 U.S. 57, 67 (1986)) (citation omitted: alteration in Harris).
Plaintiff has failed to demonstrate severe or pervasive conduct sufficient to establish a prima facie hostile work environment claim. Assuming arguendo that Plaintiff experienced some form of derogatory speech at P.S. 193, she has failed to establish that such incidents were sufficiently severe and pervasive. See Schwapp, 118 F.3d at 110 ("[f]or racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity . . . there must be a steady barrage of opprobrious racial comments") (quotations and citations omitted). Specifically, the incidents on which Plaintiff primarily relies — the conversation in the teachers' lounge; Cimino's reference to Temple transferring to P.S. 193 through the ITP; and Bassi's sarcastic remark — fall far short of that which is required to establish the sort of severe or pervasive discriminatory atmosphere sufficient to withstand summary judgment. Indeed, Plaintiff's allegations of personal slights and consistent rudeness or disrespect by P.S. 193 personnel have consistently been held insufficient to trigger hostile work environment protections under Title VII. See, e.g., Stepheny v. Brooklyn Hebrew Sch. for Special Children, 356 F. Supp. 2d 248, 264 (E.D.N.Y. 2005) (finding utterance of "white bitch" or variation five times over five months insufficient to withstand summary judgment); Curtis v. DiMaio, 46 F. Supp. 2d 206, 214 (E.D.N.Y. 1999); Bolden v New York City Hous. Auth., No. 96 CIV 2835, 1997 WL 666236, at *2, 1997 U.S. Dist. LEXIS 16772, at *5 (S.D.N.Y. Oct. 27, 1997) (finding five offensive racial references by supervisor including word "nigger," over six weeks, insufficient as matter of law to establish hostile work environment). Finally, Plaintiff's allegations of excessive monitoring are insufficient to present a triable claim that she was subjected to a discriminatorily hostile environment at P.S. 193. See, e.g., Montgomery v. Chertoff, No. 03-CV-5387, 2007 WL 1233551, at *12, 2007 U.S. Dist. LEXIS 30519, at *32-33 (E.D.N.Y. Apr. 27, 2005) (citing cases and finding that "[e]xcessive scrutiny, without more, does not constitute an adverse employment action"). Accordingly, Defendants' motion for summary judgment with respect to Plaintiff's hostile work environment claim is granted.
As explained supra, it is undisputed that the alleged conversation in the teachers' lounge was neither directed at Plaintiff nor concerned her protected class. Rather, Plaintiff testified that she simply overheard the alleged comments.
Likewise, Plaintiff's confrontations with other P.S. 193 colleagues did not objectively alter the conditions of her employment so as to create a hostile work environment. See Harris, 510 U.S. at 21. Plaintiff claims her colleagues ignored and disrespected her. However, she offers scant evidence beyond her own conclusory allegations to suggest that her colleagues acted with discriminatory intent. See Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001) (affirming summary judgment for defendants where "[p]laintiffs ha[d] done little more than cite to their mistreatment and ask the court to conclude that it must have been related to their race"). Moreover, even if the Court were to conclude that Temple's colleagues instigated confrontations with some discriminatory motive, these personal altercations do not amount to an abusive work place sufficient to establish a hostile environment claim. See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75, 81 (1998)) (Title VII "does not set forth `a general civility code for the American workplace'").
D. Plaintiff's disparate treatment claims
Claims of disparate treatment in employment are analyzed according to the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas "burden-shifting" inquiry, in the absence of direct evidence of employment discrimination, a plaintiff must first establish a prima facie case of discrimination by demonstrating that: (1) she is a member of a protected class; (2) she was qualified for the position at issue; (3) she was subjected to an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Cruz v. Coach Stores, Inc., 202 F.3d 560, 567 (2d Cir. 2000). This burden is minimal and does not require specific evidence of discrimination. Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006). If a plaintiff meets this burden, the defendant employer must then articulate a "legitimate, nondiscriminatory reason" for the adverse employment action. McDonnell Douglas, 411 U.S. at 802. To prevail, a plaintiff must then provide evidence that the employer's explanation is not true, but is instead merely a pretext to mask impermissible discrimination. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001).
The ultimate burden to persuade the trier of fact "that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252 (1981). It is not enough for a plaintiff merely to create doubt that the defendant's stated reason was the real reason for discharging her. She must also put forth "evidence that would permit a rational factfinder to infer that the discharge was actually motivated, in whole or in part, by discrimination" on the basis of her race. Grady v. Affiliated Cent., Inc., 130 F.3d 553, 561 (2d Cir. 1997). On a motion for summary judgment, the Court must examine "the entire record to determine whether the plaintiff could satisfy [her] `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff." Schnabel v. Abramson, 232 F.3d 83, 90, (2d Cir. 2000) (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000)).
The Court finds that Plaintiff has established a prima facie case of discrimination based on disparate treatment. Plaintiff is a member of a protected class and she apparently enjoyed an unblemished performance record throughout the course of her many years of employment in the New York City school system. The first and second prongs of her prima facie case are therefore satisfied. As to the third element of her prima facie case, Plaintiff has also established that she was subjected to an adverse employment action in that she was subjected to formal disciplinary action that led to the termination of her employment.
Therefore, the next issue is whether the circumstances surrounding Plaintiff's termination give rise to an inference of discrimination. "One `common and especially effective method' for [a plaintiff] to discharge this burden is to show `that the employer treated a similarly situated employee differently.'" McDonald v. Maimonides Medic. Cent., 99-CV-6849, 2002 WL 257818, at *5, 2002 U.S. Dist. LEXIS 2704, at *13 (E.D.N.Y. Jan. 3, 2002) (quoting McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001)). A plaintiff alleging disparate disciplinary treatment must establish that she was subjected to an adverse employment action "and that a similarly situated employee not in the relevant protected group received better treatment." Carter v. New Venture Gear, Inc., 310 Fed. App'x 454, 457 (2d Cir. 2009) (quoting McGuinness, 263 F.3d at 53). To do so, a plaintiff must demonstrate that she was "similarly situated in all material respects to the individuals with whom she seeks to compare herself." Shumway v. United Parcel Serv., 118 F.3d 60, 64 (2d Cir. 1997). "[T]he standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases, rather than a showing that both cases are identical[,]" Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000), and "[w]hether two employees are similarly situated ordinarily presents a fact question for the jury." Id.; see also Hargett v. Nat'l Westminster Bank USA, 78 F.3d 836, 839 (2d Cir. 1996) (noting that jury was asked to decided "similarly situated issue").
Plaintiff's disparate treatment allegations in this case center on the two confrontations with Caucasian co-workers after which she was subjected to formal discipline, while the Caucasian co-workers were only informally admonished or not subjected to discipline at all. Each incident is considered in turn.
First, Plaintiff argues that the discipline Cimino imposed following her September 30, 2004 confrontation with Militano demonstrates that Caucasian employees at P.S. 193 received more favorable treatment than did employees in Plaintiff's protected class. At his deposition, Cimino testified that he conducted a "disciplinary conference" following the incident and considered statements from both Plaintiff and Militano. ( See Pl.s Opp., Ex. 7: Deposition of Frank Cimino ("Cimino Dep.") at 215.) Cimino further testified that he concluded that Plaintiff's conduct warranted an official disciplinary letter to her personnel file while Militano's conduct warranted only informal admonishment. ( Id.) According to Plaintiff, the fact that Cimino did not personally witness this altercation and determined that both her and Militano had acted inappropriately, yet only subjected her to formal disciplinary action, establishes an inference of discrimination.
Second, Plaintiff asserts that the March 2004 auditorium incident discussed above, and resulting discipline, provides further evidence that African-American teachers at P.S. 193 received less favorable treatment than Caucasian staff members. The record indicates that shortly after the Plaintiff's confrontation with Reala and Bassi, Cimino — who had not personally observed the incident — convened a disciplinary conference after which he determined that Plaintiff had conducted herself in an insubordinate and unprofessional manner, although he conceded at his deposition that Reala's culpability was "open to interpretation." ( Id. at 211-12.) Cimino came to this conclusion despite the fact that several of students present in the auditorium stated that they observed Bassi and Reala screaming at Plaintiff. As a result of the auditorium incident and Cimino's conclusion that Plaintiff had acted unprofessionally, another disciplinary letter was placed in Plaintiff's personnel file; yet neither Reala nor Bassi were subjected to any formal discipline whatsoever.
In this case, it is clear from the record that Cimino, as P.S. 193's principal, was responsible for the supervision of all teachers and staff at the school. ( See, e.g., Defs.' Notice of Mot. for Summ. J., Ex. L: Transcript of 3020-a Hearing ("Hr'g Tr.") at 625.) In addition, the record contains numerous instances where, after an incident at P.S. 193, Cimino would conduct disciplinary conferences and consider statements from the relevant parties, after which he would determine who was to blame for an incident, which disciplinary rules had been violated, and the degree of discipline to impose. ( See, e.g., Cimino Dep. at 214-15.) Although Cimino concluded after each incident discussed above that Plaintiff's conduct was more egregious than that of her comparators, factual issues concerning comparable conduct such as those presented in this case are appropriately resolved by a jury. See Graham, 230 F.3d at 42-43 (district court's conclusion on summary judgment that plaintiff was not similarly situated to comparators "improperly resolved a fact question"). Viewing the record in the light most favorable to Plaintiff, the Court concludes that a rational jury could find that Plaintiff and the coworkers discussed above were similarly situated and engaged in conduct of comparable seriousness, the consequences for which were then applied inconsistently. As such, the Court finds that Plaintiff has met her "minimal" burden and has established a prima facie case of discrimination based upon alleged disparate disciplinary treatment at P.S. 193.
Because Plaintiff has established a prima facie case, the burden shifts to Defendants to articulate a legitimate, non-discriminatory reason for their action. In this case, Defendants assert that Plaintiff's unprofessional and insubordinate conduct formed a legitimate basis for the discipline imposed upon her and the ultimate termination of her employment which stemmed from the formal disciplinary charges brought against her. In support, Defendants ask that the Court afford dispositive weight to the findings and conclusions of the IHO. For the reasons set forth below, this Court declines to do so.
While the findings of a neutral arbitrator may constitute admissible evidence, see Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 n. 21 (1974), such determinations are not preclusive of subsequent Title VII litigation. See Tennessee v. Elliott, 478 U.S. 788, 796 (1986); see also Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 708 (2d Cir. 2001) ("[U]nreviewed decisions of state administrative agencies will not bar a subsequent de novo trial under Title VII in federal court."). However, the Second Circuit has held that where an arbitration determination follows an evidentiary hearing based on substantial evidence, a party opposing summary judgment must present strong evidence that: (1) the decision was wrong as a matter of fact — e.g., new evidence exists not presented before the tribunal; or (2) the impartiality of the proceeding was compromised. Collins v. N.Y. City Trans. Auth., 305 F.3d 113, 119 (2d Cir. 2002).
In this case, Plaintiff does not assert, and nothing in the record suggests, that the impartiality of the 3020-a hearing was compromised. However, in her submission in opposition to Defendants' motion, Plaintiff has submitted new evidence in the form of a sworn affidavit from the mother of the student involved in the incident with Laveglia that undermines testimony given by Cimino and that presents credibility issues that cannot be resolved on summary judgment. Specifically, Cimino testified at both the 3020-a hearing and at his deposition in this case that, as part of his investigation of Plaintiff's allegations of physical abuse, he contacted the student's parents to advise them of the incident and directed Laveglia to apologize to student's mother. ( See Cimino Dep. at 137 ("I spoke to the child, I spoke to the parents, drew my conclusion [and completed the investigation.]"); id. at 139 ("[Laveglia] apologized to the mother and everyone was happy with that."); see also Hr'g Tr. at 1058 ("[W]e contacted the parents."). However, the student's mother flatly disputes that Cimino contacted her, or that Laveglia apologized to her for the incident. ( See Aff. of Daniela Kuqi at ¶ 6 ("Both of [Cimino's] statements are false. Neither Mr. Cimino nor anyone else form [sic] P.S. 193 administration ever contacted me or [the student's] father to tell us about the incident where Ms. Laveglia pushed our daughter.))
In a footnote in their Reply brief, Defendants object to the affidavit submitted by the student's mother because Plaintiff failed to disclose her as a potential witness pursuant to Rule 26(a) or (e) of the Federal Rules of Civil Procedure. ( See Defs.' Reply Mem. at 5 n. 2). However, Defendants contentions of prejudicial unfairness are undermined by the fact that this witness's status as an individual with discoverable information stemmed directly from Cimino's testimony, who claims to have personally discussed the lunchroom incident involving Laveglia with her. In this regard, it is worth noting that Cimino was deposed on September 27, 2007 and that discovery remained open until at least March 12, 2009. ( See Docket No. 49). There is nothing in the record to suggest that Plaintiff concealed this witness or her potential testimony from Defendants, and nothing precluded them from deposing her; indeed, following Cimino's deposition, Defendants contacted her regarding her daughter's upcoming deposition. ( See Docket No. 35 at 19, 22.) In any event, for the reasons discussed supra — specifically, the instances in which Plaintiff was formally disciplined following personal confrontations with P.S. 193 staff members who were not similarly charged with misconduct — the Court's conclusion that disputed issues of fact preclude summary judgment would be unchanged even absent the affidavit at issue. However, Defendants are directed to address any issues concerning the need for further discovery to Magistrate Judge Pollak.
In this case, the DOE charges, and much of the evidence presented at the 3020-a proceeding in support of those charges, arose from Cimino's conclusions that Plaintiff had acted unprofessionally and/or insubordinately at P.S. 193. Indeed, Cimino was the primary source of the formal disciplinary allegations lodged against Plaintiff that led to the 3020-a hearing and, consequently, the ultimate termination of her employment. Although the portion of Cimino's prior testimony that has been challenged in this action is unrelated to his testimony concerning Plaintiff's confrontations with her coworkers ( i.e., the basis for Plaintiff's disparate discipline allegations), it is inappropriate for this Court to speculate how the new evidence proffered by Plaintiff in this litigation might have affected the IHO's factual findings and ultimate conclusions at the 3020-a hearing. See Alexander, 415 U.S. at 60 n. 21 ("[C]ourts should be ever mindful that Congress, in enacting Title VII, thought it necessary to provide a judicial forum for the ultimate resolution of discriminatory employment claims. It is the duty of courts to assure the full availability of this forum."). Accordingly, while the IHO's final determination certainly suggests that Plaintiff faces a challenging path at trial, the Court concludes that the findings in that forum are not dispositive of the disputed factual issues in this case — i.e., whether or not Plaintiff was subjected to disparate treatment in violation of Title VII.
Finally, although Defendants have proffered legitimate, non-discriminatory reasons for their conduct, Plaintiff responds that the incidents of alleged disparate treatment presented to establish her prima facie case also demonstrate that Defendants' explanation for the termination of her employment was pretextual. The Second Circuit has stated that, "[a] showing that similarly situated employees belonging to a different racial group received more favorable treatment can also serve as evidence that the employer's proffered legitimate, non-discriminatory reason for the adverse job action was a pretext for racial discrimination." Graham, 230 F.3d at 43 (citing Hargett, 78 F.3d at 939); see also id. at 44 ("Only where overwhelming evidence exists that an employer acted for reasons other than discrimination will the proof submitted by the plaintiff as to similarly situated employees be negated.").
In addition to arguing that the examples of purported disparately imposed discipline discussed above demonstrate pretext, Plaintiff also asserts that the incident involving Laveglia provides further support for her allegations that Cimino engaged in a pattern of disparately favoring Caucasian employees at P.S. 193 — i.e., that he routinely overlooked misconduct committed by Caucasian employees, but would not hesitate to formally charge Plaintiff with disciplinary infractions. Finally, despite Defendants' proffered legitimate reason for Plaintiff's dismissal — i.e., the conduct at issue at the 3020-a proceeding — the Court notes that the IHO actually concluded that some of the allegations brought against Plaintiff were unsubstantiated or only partially substantiated by the evidence presented at the 3020-a hearing.
At this final stage of the McDonnell Douglas analysis "the governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred." James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000) (discussing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 (2000)). In sum, the Court finds that the incidents discussed above, taken together and viewed in the light most favorable to Plaintiff, present disputed issues of fact such that a reasonable jury could conclude that Plaintiff was subjected to disparate disciplinary treatment at P.S. 193. Accordingly, that portion of Defendants' motion seeking summary judgment with respect to Plaintiff's disparate treatment claims is denied.
E. Plaintiff's retaliation claims
Title VII's anti-retaliation provision prohibits an employer from "discriminat[ing] against" an employee or job applicant because she has "opposed" a practice that Title VII forbids or has "made a charge, testified, assisted, or participated in" a Title VII "investigation, proceeding, or hearing." 42 U.S.C. § 2000e-3(a). To establish a prima facie retaliation claim the plaintiff must show that: (1) she was engaged in a protected activity; (2) the employer knew of such activity; (3) the employer took adverse employment action against the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action. See McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001). Retaliation claims are also analyzed using the McDonnell Douglas framework. McDonnell Douglas, 411 U.S. at 792.
Defendants do not dispute that Plaintiff's administrative complaints constituted protected activity under Title VII nor that Plaintiff's negative evaluations, the disciplinary charges brought against her, and the ultimate termination of her employment, constituted adverse employment actions. With regard to the second and third elements, however, Defendants contend that Plaintiff has failed to establish that Defendants knew about her OEO and NYSDHR complaints and, therefore, that she has not established the requisite causal connection between her protected activity and any adverse employment action.
The second prong of a plaintiff's prima facie case, however, requires only a showing of "general corporate knowledge" that a plaintiff has engaged in activity protected under Title VII. Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000) ("Neither this nor any other circuit has ever held that, to satisfy the knowledge requirement, anything more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity."); see also Martinez v. New York City Dep't of Educ., No. 04 Civ. 2728, 2008 WL 2220638, at *11, 2008 U.S. Dist. LEXIS 41454, at *39-40 (S.D.N.Y. May 27, 2008) (second element satisifed where "[a]lthough . . . Plaintiff has proffered no evidence that [public school principal that supervised Plaintiff] personally knew about Plaintiff's protected activity . . . there is no dispute that [DOE], as a corporate entity and Defendant in this case, knew about Plaintiffs protected activity.") (citing Gordon, 232 F.3d at 116 (2d Cir. 2000).)
Here, it is undisputed that on June 7, 2004 Plaintiff filed a complaint with DOE's Office of Equal Opportunity and has therefore satisfied the second prong of her retaliation claim with respect to her OEO complaint. See Martinez, 2008 WL 2220638, at *11, 2008 U.S. Dist. LEXIS 41454, at *39-40. Next, the record contains sufficient evidence to establish that, prior to Plaintiff's removal from P.S. 193, at least Cimino was aware that Plaintiff had filed a complaint with the NYSDHR. ( See, e.g., Defs.' Notice of Mot., Ex. X (Letter dated October 6, 2004 from Cimino to Plaintiff referencing her NYSDHR claim); see also Hr'g Tr. at 1083-84 ("I know that [Plaintiff] has always written things to the [NYSDHR and her attorney].").) Therefore, Plaintiff has satisfied the second prong of her retaliation claim with respect to her NYSDHR complaint.
As to the third element of her prima facie case, a plaintiff can prove causation "either (1) indirectly, by showing that protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against plaintiff by the defendant." Gordon, 232 F.3d at 117 (citation omitted); see also Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554-55 (2d Cir. 2001). Where, as here, the "mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action" is the basis for a retaliation claim, the proximity must be "very close." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). However, there is no "bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action." Gorman-Bakos, 252 F.3d at 554.
Plaintiff filed her OEO complaint on June 7, 2004. Eight days later, she received an "unsatisfactory" overall performance evaluation for the school year, despite receiving "satisfactory" ratings with regard to all substantive teaching duties for which she was reviewed. Aside from Cimino's testimony that he was unaware that Plaintiff had filed an OEO complaint, Defendants cite only an email dated June 22, 2004 informing him that the charges had been dismissed to support the proposition that he lacked knowledge of Plaintiff's complaint. However, as Plaintiff correctly observes, this email only demonstrates that Cimino learned that the OEO complaint had been dismissed; it does not, however, establish that Cimino was unaware that it had been filed in the first place. With regard to her NYSDHR complaint, it is undisputed that Plaintiff was removed from P.S. 193 to await formal 3020-a charges approximately two months after she filed her NYSDHR charge. In light of the above, the Court concludes that Plaintiff has established a prima facie case of retaliation with respect to both her OEO and NYSDHR complaints. See, e.g., Ashok v. Barnhart, 289 F. Supp. 2d 305, 315 (E.D.N.Y 2003) ("a period of only two months between a protected activity and an adverse action may permit a reasonable jury to find the acts to be temporally proximate and causally related").
Because Plaintiff has established a prima facie case of retaliation, the burden shifts to Defendants to articulate a legitimate, non-discriminatory reason for their challenged conduct. As with Plaintiff's disparate treatment claims, Defendants invoke Plaintiff's conduct as found by the IHO following the 3020-a hearing as a legitimate, nondiscriminatory basis for her termination. However, for the reasons stated earlier, the Court finds that issues of fact pertaining to alleged disparate treatment at P.S. 193, as well as the new evidence disputing Cimino's testimony at both the 3020-a hearing and at his deposition preclude summary judgment in this case. Therefore, the Court concludes that Plaintiff has demonstrated genuine issues of material fact as to whether she was retaliated against with respect to her OEO and NYSDHR complaints. Accordingly, that portion of Defendants' motion seeking dismissal of Plaintiff's retaliation claims is denied.
CONCLUSION
For the foregoing reasons, it is ORDERED that Defendants' motion for summary judgment is GRANTED in part and DENIED in part. Plaintiff's hostile work environment and 42 U.S.C. § 1981 claims are DISMISSED. As to Plaintiff's disparate treatment and retaliation claims, however, Defendants' summary judgment motion is DENIED and those claims will proceed toward trial.
The parties are referred to the assigned Magistrate Judge, the Honorable Cheryl L. Pollak, for purposes of preparing a Joint Pretrial Order and addressing any other pretrial issues requiring Judge Pollak's attention.
SO ORDERED.
Dated: Brooklyn, New York
September 21, 2010