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City of Providence v. Rhode Island Commission for Human Rights

Superior Court of Rhode Island, Providence

April 3, 2018


          For Plaintiff: Charles A. Ruggiero, Esq.; Kathryn M. Sabatini, Esq.

          For Defendant: Francis A. Gashen, Esq.; Marissa Janton, Esq.; Mark P. Gagliardi, Esq.; Alicia Mary Connor, Esq.


          GALLO, J.

         Plaintiff-Appellants-the City of Providence (Providence) and Wobberson Torchon (Mr. Torchon) (collectively, Appellants)-seek to reverse and vacate the November 24, 2014 Corrected Decision and Order (Decision) of the Rhode Island Commission for Human Rights (the Commission).[1] The Commission found the Appellants unlawfully discriminated against Hortencia Zabala (Ms. Zabala) based on her ancestral origin, in violation of the Rhode Island Fair Employment Practices Act (FEPA), Chapter 28-5 of the Rhode Island General Laws.[2]Jurisdiction is pursuant to G.L. 1956 § 42-35-15.


         Facts and Travel


         Factual Background

         Ms. Zabala is a woman of Bolivian ancestral origin. Ms. Zabala has been employed by Providence since or around 1996 and became a full-time, certified Limited English Proficiency (LEP) teacher at the Gilbert Stuart Middle School in 2000.

         At the start of the 2005-2006 school year, Ms. Zabala moved into a non-LEP mathematics position at Central High School[3] where Principal Elaine Almagno expressed concerns regarding her ability to effectively communicate with her students. (Tr. II at 72-73.)[4]As a result, Principal Almagno initiated a Non-Evaluation Year Intervention for the 2006-2007 school year pursuant to Article 8-14.4 of the Collective Bargaining Agreement (CBA) between Providence and the Providence Teachers Union. (Resp't's Ex. A at 23.) [5]

         During Ms. Zabala's Non-Evaluation Year Intervention, in September of 2006, she was evaluated by her department supervisor, Mike Lauro (Mr. Lauro). (Resp't's Ex. E.) In an evaluation endorsed by Principal Almagno, Mr. Lauro found "Ms. Zabala fail[ed] to achieve . . . teaching prerequisites necessary to deliver Algebra 1 & 2 curriculum to the benefit of her students and as expected by the Providence Public School District." (Resp't's Ex. E.) Mr. Lauro also cited Ms. Zabala for being "extremely difficult to understand when speaking and as a result is incoherent." Id. Following Mr. Lauro's evaluation of Ms. Zabala for the 2006-2007 school year, Ms. Zabala was transferred to the DelSesto Middle School to afford her a second opportunity at an evaluation. (Tr. II at 69.) Shortly thereafter, the DelSesto Middle School closed at the conclusion of the 2006-2007 school year.

         Immediately following the closure of the DelSesto Middle School, Ms. Zabala was placed at the newly created Jorge Alvarez High School for the 2007-2008 school year. Shortly after arriving at the newly created Jorge Alvarez High School, her supervisor, Principal Wobberson Torchon, had concerns regarding Ms. Zabala's delivery of instruction. Throughout the school year, Mr. Torchon provided Ms. Zabala with support and offered suggestions on how to modify her instruction. (Tr. III at 39.) On April 7, 2008, Mr. Torchon evaluated Ms. Zabala's employment performance and praised her hard work, planning, knowledge of her students, discipline, and good understanding of how to construct a lesson designed to reach all students, but noted his "main concern" that she develop her knowledge of the English language "especially [her] ability to utter speech that could be easily understood by [her] students." (Complainant's Ex. 6 at 3.) Accordingly, Mr. Torchon "encourage[d] [Ms. Zabala] to continue to take classes in English designed to enhance [her] pronunciations and conversational ability." Id. at 2 (emphasis in original).

         At the beginning of the 2009-2010 school year, Mr. Torchon received several complaints from students and parents regarding Ms. Zabala's delivery of instruction. As an instructional leader, Mr. Torchon found that during his usual visits to classes, students and parents would approach him to speak to him "because they were having difficulty with the content of the course that [Ms. Zabala] was teaching and they asked [him] to help." (Tr. III at 18.) As a result of these conversations, Mr. Torchon found that "[a]lot of her students were saying that they could not understand the instruction[.]" Id. After receiving these complaints, Mr. Torchon made more frequent visits to observe Ms. Zabala's classroom.

         On November 2, 2009, Mr. Torchon met with Ms. Zabala and a union representative to discuss his observations of her class. In a letter dated November 2, 2009, Mr. Torchon expressed that he had spoken with Ms. Zabala and that he had visited her classroom to observe her several times. Specifically, Mr. Torchon explained to Ms. Zabala that he "had a very difficult time . . . understanding what you were saying to the students Even with a secondary math degree and having taught Math for ten years, there were times in your class that I could not figure out what you were teaching." (Resp't's Ex. F; Tr. II at 99-100; Tr. III at 20.) Mr. Torchon further informed Ms. Zabala that "[y]our inability to verbally communicate in English to your students keeps them from unlocking the mathematics that is essential for their success." (Resp't's Ex. F.) Several weeks later, on November 23, 2009, Mr. Torchon sent another letter expressing praise that Ms. Zabala had taken some concrete steps from his previous classroom observation, but at the same time expressed concern regarding Ms. Zabala's minimal progress and advised her that "[f]ailure to make the necessary adjustments will result in further disciplinary action." (Resp't's Ex. G at 2.)

         Subsequent to the two November evaluations, Ms. Zabala was absent from school for approximately three (3) months for health reasons. Shortly after Ms. Zabala's return, Mr. Torchon wrote to Nkoli Onye (Ms. Onye), the Executive Director of High Schools, on March 5, 2010 to express his continued observation of "poor instruction" from Ms. Zabala "due to her inability to communicate clearly and effectively to her students." (Resp't's Ex. N.) Mr. Torchon then requested a meeting with Ms. Zabala and her union representative to recommend a Non-Evaluation Year Intervention.[3]

         Following Mr. Torchon's request, Mr. Torchon, accompanied by Ms. Onye, Paul Vorro (Mr. Vorro) (a union representative), and Dennis Sidoti (Mr. Sidoti) (an Employee Relations Administrator), met with Ms. Zabala to take up Mr. Torchon's concerns over Ms. Zabala's ability to effectively communicate instruction in English. This meeting resulted in Ms. Onye deciding to conduct a Non-Evaluation Year Intervention of Ms. Zabala. (Tr. II at 156.)

         Ms. Onye's evaluation of Ms. Zabala took place on April 8, 2010, and it was followed by a post-conference evaluation on April 16, 2010. On April 19, 2010, Ms. Onye sent a final draft of her evaluation to Dr. Tomás Ramirez (Dr. Ramirez) (Assistant Superintendent for Human Resources). In correspondence accompanying the evaluation, Ms. Onye explained that she "d[id] not feel that Ms. Zabala should be allowed to remain in our schools as students will be largely unable to meet math (and math literacy) requirements for graduation and college readiness, and/or pass state and local assessments." (Resp't's Ex. O at 1.) Among Ms. Onye's observations informing her recommendation to Dr. Ramirez were the following:

"Although Ms. Zabala appears to understand her subject matter, she does not communicate intelligibly. There is no evidence of her ability to engage her students to think critically, analyze and assess important concepts in and between mathematics and other related subjects (Dimension 2). Ms. Zabala has attended professional development, however, there is little evidence of a transfer of knowledge and skills designed to improve instruction. Thus she is unable to engage students in the mathematical dialogue necessary for them to understand the mathematical concepts, connections, goals, and objectives (Dimension 5).
"Ms. Zabala lacks the skills necessary to provide the instruction required to prepare students to learn the curriculum and to be prepared for the next course in the sequence as well as local and state assessments and policies." (Resp't's Ex. O at 4.)[4]

         On May 28, 2010, Ms. Zabala requested a full year sabbatical leave of absence to attend Providence College and Johnson & Wales University in order "to improve [her] English skills and expand [her] knowledge in Mathematics." (Resp't's Ex. H.) The courses Ms. Zabala desired to enroll in included the following: English Composition, English Communication Skills, Introduction to Literacy Genres, Advanced Composition and Communication, Number Theory, Graphing, Calculators in the Classroom, Foundations of Mathematics and Numerical Analysis. Id. and Decision at 6. Ms. Zabala's sabbatical request was denied. In a letter dated June 22, 2010, Dr. Ramirez, citing Art. 5-4 of the CBA, informed Ms. Zabala that "the Superintendent was unable to approve [her] program of study" because "several classes listed in [her] sabbatical request [fell] outside [her] content area." (Resp't's Ex. I.) Ms. Zabala was also informed of her right to request an unpaid leave for her intended purposes. Id. Dr. Ramirez pointed out that teachers are expected, as a matter of teaching qualifications, to be fluent in English and that paid sabbatical leave is not available for someone to learn to effectively communicate in English. (Tr. IV at 28-29.)

         Before the commencement of the 2010-2011 school year, a meeting was held to discuss Ms. Zabala's leave request. At this meeting were Ms. Zabala, her daughter, Dr. Ramirez, Mr. Sidoti, and Mr. Vorro. An agreement was reached that, in order to avoid termination proceedings, Ms. Zabala would take an unpaid leave of absence for the 2010-2011 school year during which she would be required to complete a course in English fluency. This agreement was memorialized in a letter from Dr. Ramirez dated October 21, 2010. (Resp't's Ex. U.) The agreement also assured Ms. Zabala that her benefits would continue until November 1, 2010 and at that time, Ms. Zabala would be eligible for COBRA benefits.[5] Id.

         During her leave, Ms. Zabala took various English courses. At the beginning of the 2011-2012 school year, upon her return, she took an English fluency test which she did not pass. Nevertheless, Ms. Zabala was reinstated by Providence to a position at Hope High School, apparently as a result of some type of litigation settlement. (Tr. IV at 80.)


         Proceedings before the Commission

         On August 29, 2011, Ms. Zabala filed a charge with the Commission against the Providence School Department, Mr. Torchon, Dr. Ramirez, Ms. Onye, and Richard Kerbel.[6]Following an initial finding of probable cause, a complaint and notice of hearing was issued on November 20, 2012. The Complaint alleged discrimination because of Ms. Zabala's ancestral origin in violation of FEPA. On May 16 and 17, 2013, and August 28 and 29, 2013, Commissioner Camille Vella-Wilkinson conducted hearings on the matter.

         On October 1, 2014, the Commission issued a Decision and Order which found that Mr. Torchon and Providence had engaged in intentional discrimination in violation of § 28-5-7 of FEPA. It ordered that (1) Providence and Mr. Torchon cease and desist from all unlawful employment practices; (2) Providence post the Commission anti-discrimination poster prominently in all of its facilities; (3) Mr. Torchon be trained with respect to state and federal anti-discrimination laws within six months of the date of this Order and that the Commission be provided within one month of the training a certification that Mr. Torchon was trained, the date of the training, the name of the trainer and a copy of the syllabus of the training; and (4) the Commission reserved decision on an "appropriate award of damages."

         With respect to the instances of discrimination at issue on appeal, the Commission found that Ms. Zabala proved by a preponderance of the evidence that Providence and Mr. Torchon discriminated against her because of her ancestral origin. At the first stage of its analysis, the Commission found Ms. Zabala to be a member of a protected class and qualified for the position in which she was working. Additionally, the Commission found that Ms. Zabala suffered an adverse employment action when Providence denied her a paid sabbatical leave request, and when Mr. Torchon made adverse observations of Zabala which led to an unfavorable evaluation and a recommendation of termination. (Decision 10.) Furthermore, according to the

         Commission's Decision, the circumstances allowed for an inference of ancestral origin discrimination based on evidence that a "similarly-situated non-Hispanic employee . . . was allowed a paid sabbatical" to study Spanish. (Decision 10.)[8] The Commission inferred discriminatory intent in Mr. Torchon's treatment of Ms. Zabala based on what it saw as "evidence that [he] was motivated by her accent, which can constitute ancestral origin discrimination." Id

         At the second stage of the analysis, the Commission found that Providence and Mr. Torchon met their burden of proffering legitimate, non-discriminatory reasons for their actions. Id. Providence satisfied its burden by producing evidence that the Superintendent denied Ms. Zabala's paid sabbatical leave because some of the courses Ms. Zabala proposed to take were not in her content or subject area. The Commission also found that Mr. Torchon produced evidence that his recommendation for a Non-Evaluation Year Intervention was motivated by concerns of students' learning being impeded by Ms. Zabala's inability to effectively communicate and deliver classroom instruction.

         The Commission found discriminatory animus in Providence's decision to deny Ms. Zabala's sabbatical because the (1) CBA did not specifically require that the proposed program of studies be in the teacher's subject area, and (2) evidence that a non-Hispanic guidance counselor was granted a sabbatical to study Spanish at the University of Buenos Aires. Id. at 11. As to Mr. Torchon, the Commission concluded that his negative assessment of Ms. Zabala's teaching performance was a "pretext to disguise his discriminatory motivation." Id. at 12. In so concluding, the Commission cited Ms. Zabala's tenure as a teacher and testimony from Roberto Pena (Mr. Pena), who was a teacher and colleague of Ms. Zabala, and from two students (Joshua Francis and Dulce Palma), each of whom attested to Ms. Zabala's competence as a teacher. The Commission also credited Ms. Zabala's testimony that Mr. Torchon wasn't as friendly to her as he was with non-Hispanic teachers, and that Mr. Torchon recommended a Non-Evaluation Year Intervention for another teacher, an Hispanic woman named Ms. Garcia. Id.

         However, the Commission found Ms. Zabala did not prove that Ms. Onye or Dr. Ramirez discriminated against her on the basis of her ancestral origin. Id. at 13. With respect to Ms. Onye, Ms. Zabala did not convince the Commission that Ms. Onye was motivated by ancestral origin discrimination when she ordered Ms. Zabala's interim evaluation, provided a negative evaluation, and recommended her termination.[9]

          With respect to Dr. Ramirez, the Commission did not find that he was motivated by discrimination. The Commission found that Dr. Ramirez was acting as a representative of the Superintendent in dealing with Ms. Zabala's leave of absence. Id. at 13. The Commission also noted that "Dr. Ramirez is Hispanic." Id. at 14.

         The Appellants filed the instant appeal with this Court. They contend that Ms. Zabala was not subjected to adverse employment actions. They further argue that assuming, arguendo, that the negative evaluations of Ms. Zabala and the denial of her request for sabbatical leave request actually did constitute adverse employment actions, the Commission's Decision is erroneous because Ms. Zabala did not meet her burden of establishing that discrimination on the part of the Appellants was a motivating factor for those actions.


         Standard of Review

         The Superior Court's appellate review of a final administrative decision is governed by § 42-35-15; Iselin v. Ret. Bd. of Emps.' Ret. Sys. of R.I., 943 A.2d 1045, 1048 (R.I. 2008) (citing Rossi v. Emps.' Ret. Sys. of R.I., 895 A.2d 106, 109 (R.I. 2006)). Section 42-35-15(g) delineates the applicable standard of review for administrative appeals to this Court:

"(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
"(1) In violation of constitutional or statutory provisions;
"(2) In excess of the statutory authority of the agency;
"(3) Made upon unlawful procedure;
"(4) Affected by other error or law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Sec. 42-35-15(g).

         "In essence, if 'competent evidence exists in the record [to support the agency's conclusion], the Superior Court is required to uphold the agency's conclusions.'" Auto Body Ass'n of R.I. v. State of R.I. Dep't of Bus. Regulation, 996 A.2d 91, 95 (R.I. 2010) (quoting R.I. Pub. Telecomms. Auth. v. R.I. State Labor Relations Bd., 650 A.2d 479, 485 (R.I. 1994)). In reviewing the record, this Court "shall not substitute [its own] judgment for that of the agency as to the weight of the evidence on questions of fact." Interstate Navigation Co. v. Div. of Pub. Utils. & Carriers of R.I., 824 A.2d 1282, 1286 (R.I. 2003).

         However, when considering questions of law, the Court is not bound by the agency's decision, but instead may review the decision "to determine the relevant law and its applicability to the facts presented in the record." State Dep't of Envtl. Mgmt. v. State Labor Relations Bd., 799 A.2d 274, 277 (R.I. 2002). Therefore, the Superior Court's review of "questions of law- including statutory interpretation-[is] . . . de novo." Iselin, 943 A.2d at 1049.


         Applicable Law

         The FEPA prohibits discrimination against the terms and conditions of employment based on, inter alia, ancestral origin. Section ...

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