Plaintiff: Charles A. Ruggiero, Esq.; Kathryn M. Sabatini,
Defendant: Francis A. Gashen, Esq.; Marissa Janton, Esq.;
Mark P. Gagliardi, Esq.; Alicia Mary Connor, Esq.
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). 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.Jurisdiction is
pursuant to G.L. 1956 § 42-35-15.
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.
start of the 2005-2006 school year, Ms. Zabala moved into a
non-LEP mathematics position at Central High
School where Principal Elaine Almagno expressed
concerns regarding her ability to effectively communicate
with her students. (Tr. II at 72-73.)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
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
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).
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.
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.)
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
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.)
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.)
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.)
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
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.)
before the Commission
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.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
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."
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
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.) 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
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.
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.
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
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.
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
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
"(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).
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).
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.
FEPA prohibits discrimination against the terms and
conditions of employment based on, inter alia,
ancestral origin. Section ...