Ramin Dilfanian appeals from a judgment of the United States District Court for the Eastern District of New York (Vitaliano,
Dilfanian was as an Assistant Principal for Supervision of Mathematics at New Utrecht High School ("NUHS") in Brooklyn, New York from 2006 to 2010. During that period, he also served as a Major in the United States Army Reserves. He was terminated from NUHS at the conclusion of the 2009-10 academic year at the recommendation of NUHS's Principal, Maureen Goldfarb. Dilfanian sues the New York City Department of Education ("DOE") and Goldfarb, alleging that his termination violated USERRA because it was motivated by Golfarb's frustration at his potential military deployment.
USERRA forbids an employer to deny "employment, reemployment, retention in employment, promotion, or any benefit of employment" based on a person's "membership" in or "obligation to perform service in a uniformed service," 38 U.S.C. § 4311(a), and provides that liability is established "if the person's membership . . . is a motivating factor in the employer's action,"
In adjudicating a claim brought under USERRA, courts apply the burden-shifting framework approved by the Supreme Court in
The district court dismissed the complaint on summary judgment, ruling that Dilfanian failed to make out a prima facie case of discrimination, and that, in any case, his performance issues demonstrate that he would have been terminated regardless of his military service.
We review de novo a district court's grant of summary judgment,
Prima Facie Case.
Dilfanian argues that a rational juror could conclude that his termination was motivated, at least in part, by Goldfarb's frustration at his potential military deployment. We agree.
Goldfarb's frustration is evidenced by her alleged behavior on and after October 30, 2009, when Dilfanian received orders regarding a possible one-year deployment to Afghanistan. First, Dilfanian testified that when he showed Goldfarb his deployment letter on October 30, she threw it on her desk and stated, "[Y]ou're going to leave a broken department behind," and "[H]ow can you do that to me? I am stuck with cleaning up . . . the mess." App'x at 323. A rational juror could construe this reaction as Goldfarb personalizing the deployment as something Dilfanian was doing to her rather than a legal obligation imposed on them both.
Second, while Dilfanian was away from the school the following week (November 2-6) attending a pre-deployment planning session, Goldfarb filed a disciplinary letter regarding Dilfanian's inadvertent absence from a meeting seven weeks earlier. The letter warned Dilfanian that "[t]his incident may lead to further disciplinary action, including an unsatisfactory rating and charges that can lead to your termination." App'x at 272. According to Dilfanian, Goldfarb had told him and his union representative in September that she would not issue a disciplinary letter unless he missed another meeting, which he did not. Goldfarb does not explain why she filed the disciplinary letter when Dilfanian was away on pre-deployment, seven weeks after the missed meeting. She simply cites DOE regulations requiring that disciplinary letters be filed within ninety days of the underlying incident.
Third, during Dilfanian's first three years as assistant principal at NUHS, he received satisfactory ratings and (the record indicates) no disciplinary letters. Yet in the eight months after notifying Goldfarb of his planned deployment, he received an unsatisfactory rating and three disciplinary letters, and was subsequently terminated. Moreover, Goldfarb conceded that during her six years at NUHS, Dilfanian was the only assistant principal whom she rated (post-deployment notice) as unsatisfactory; and aside from a Coast Guard veteran who left within a few months of Goldfarb's arrival, Dilfanian was apparently the only service member on staff.
Fourth, Dilfanian testified that after he received the deployment order, Goldfarb stopped being friendly and ceased informal communications with him.
Fifth, at a NUHS "cabinet" meeting of assistant principals shortly after Dilfanian received the deployment order, Goldfarb announced that military recruiters (who had previously been permitted to visit classes) would no longer be allowed in the school except on career day.
Dilfanian testified that during two other cabinet meetings following the deployment letter, Goldfarb signaled a desire to get rid of him. At one, Goldfarb announced that she was "cleaning house," stared and pointed a wand at Dilfanian, and said to him (and only him), "poof, be gone." App'x at 121. At another, the school's math coach (who was not an assistant principal and thus not a cabinet member) was invited to stay and eat after giving a presentation. When the math coach hesitated, Goldfarb looked at Dilfanian, then turned back to the math coach and said, "if you want to join us at the cabinet, you need to eat like us." App'x at 115. The only way the math coach could have joined the cabinet was as Dilfanian's replacement in the position of Assistant Principal of Mathematics. When Dilfanian was terminated, that is just what happened.
Finally, Dilfanian requested Goldfarb's endorsement for a training program that would qualify him to become a principal. According to Dilfanian, Goldfarb failed to sign the necessary paperwork by the deadline (which was after he received the deployment order), and, as a result, he missed the opportunity.
Although it is a close call, we believe that this evidence, when viewed in the light most favorable to Dilfanian, is sufficient to preclude summary judgment.
Appellees contend that any inference of discrimination that can be drawn from Goldfarb's behavior is negated by the fact that Dilfanian did not end up deploying. The thrust of this argument is that the deployment order ceased to be a factor once Dilfanian managed to avoid it. However, a juror could rationally conclude that the deployment order caused Goldfarb to consider the prospect of losing an assistant principal suddenly and for a prolonged period of time. (Unlike typical Army Reserve units, Dilfanian's special operations unit could apparently be deployed at any time with three days' notice.) In other words, one could find that the deployment order made real for Goldfarb the risk of having to operate without one of her critical staff members on a moment's notice.
Appellees argue that Dilfanian's performance problems during his final year at NUHS were so significant that he would have been terminated regardless of Goldfarb's motives. They cite a number of incidents to support this contention.
First, Dilfanian forgot to attend a meeting in Goldfarb's office. He testified that, at the time, he was in his office speaking with the school's math coach.
Second, while inspecting test materials in preparation for an Advanced Placement English Literature exam, Dilfanian (and another testing coordinator) failed to notice that the state had erroneously sent English Language exam booklets. The test had to be rescheduled, and one student missed it.
Third, Goldfarb alleged that Dilfanian provided inadequate guidance to teachers on a number of occasions, and that students were performing below expectations. (Dilfanian refuted these allegations in a detailed and thoughtful response.)
Finally, Dilfanian was absent from school on Friday, May 14, a day when he was supposed to perform an important role in a professional development session. On Monday of that week, he received military orders to report to Fort Dix, New Jersey on the Thursday and to remain through the weekend. Rather than miss school, he arranged with his superior officer to arrive at Fort Dix after the school day on Thursday and be excused from duty altogether on Friday. Because he had worked out similar arrangements in the past, he did not warn Goldfarb. However, on Thursday night, a one-star general requested that Dilfanian personally give a briefing the following day. Accordingly, Dilfanian notified the school early Friday morning that he would be out (which was the normal procedure for unexpected teacher absences). At that point, however, it was too late to reschedule the professional development session, which had to be reorganized in light of Dilfanian's absence.
These alleged performance problems were not so egregious that a rational juror must conclude that his termination would have occurred regardless of his military service.
Accordingly, we hereby