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Saturday, June 15, 2019

Mandell v County of Suffolk: Hostile Work Environment and First Amendment Retaliation

                                            United States Court of Appeals,  Second Circuit.

Howard E. MANDELL, Plaintiff-Appellant, v. The COUNTY OF SUFFOLK and John Gallagher, Police Commissioner, Defendants-Appellees.

Docket No. 01-7729.

    Decided: January 17, 2003

Before:  CARDAMONE, F.I. PARKER, and B.D. PARKER, Circuit Judges. Alan Polsky, Bohemia, New York, for Plaintiff-Appellant. Diane L. Beckmann, Assistant County Attorney, Hauppauge, New York (Robert J. Cimino, Suffolk County Attorney, Hauppauge, New York, of counsel), for Defendants-Appellees.
This is an appeal in an employment discrimination case.   There is a nursery rhyme that teaches “sticks and stones may break my bones, but names will never hurt me.”   Such is a lesson particularly doubtful in the workplace, as illustrated by this case, because alleged epithets and demeaning invective directed at a plaintiff by his or her superiors or co-workers can, if believed by a factfinder, subject an employer to legal liability for discrimination.
Plaintiff Howard E. Mandell, a practicing Jew and a now-retired employee of the Suffolk County Police Department (Suffolk County Police or the department), instituted the instant action against defendants, the County of Suffolk and John Gallagher, its police commissioner, individually and in his official capacity, in the United States District Court for the Eastern District of New York (Mishler, J.).
Adverse employment actions were taken against him, plaintiff contends, because of his religion, and also in retaliation for his June 1987 testimony before the Suffolk County Legislature's Public Safety Committee and for his 1992 interview with Newsday, the Long Island daily newspaper.   Accordingly, the complaint alleges religious discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and First Amendment retaliation in violation of 42 U.S.C. § 1983.   It also asserts claims under New York State's Human Rights Law, N.Y. Exec. Law § 296, and the New York State Constitution, Article 1, § 8.
I Facts A. Plaintiff's Allegations of Pro-Catholic and Anti-Jewish Bias Within the Suffolk County Police Department
Because we are reviewing a dismissal of the complaint at the summary judgment stage, we view the facts in the light most favorable to plaintiff and resolve all factual disputes in plaintiff's favor.   See Fed.R.Civ.P. 56(c).  Plaintiff was employed by the Suffolk County Police for over 30 years, retiring with the rank of deputy inspector in 2001.   He joined the department as a police officer in 1969 and attained the rank of captain in 1988, through a series of promotions based on civil service examinations.   Mandell asserts that throughout his police career he faced a pro-Christian and, more specifically, pro-Irish-Catholic bias.   Further, he contends anti-Semitism for a long time has been a part of the department culture.   He has repeatedly been a target of anti-Semitic remarks and taunting, such as being called “that Jew” and “Jewboy” and being told that all Jews stick together, and was subjected to insulting and demeaning conduct by fellow officers.   He relates that on one occasion, for example, another officer tossed a dime on the floor before him to see if he would stoop down to pick it up.   Plaintiff claims also to have heard virulent anti-Semitic remarks directed at other Jews, such as “f* * *ing Jews” and “f* * *ing Jew lawyer.”   Although these overt expressions of anti-Semitism in his presence virtually ceased in 1989 upon his promotion to deputy inspector, he attributes this to his rank, not to a shift in the department attitude toward him.
Rabbi Jeffrey Wartenberg, a Suffolk County police chaplain, supported plaintiff's allegations, stating in an affidavit that during his 20 years with the department he had heard many Jewish officers complain about the disparaging remarks made against their religion.   Based on his experience, Rabbi Wartenberg concluded that “anti-Semitism is a way of life within the Department” and that Jewish officers had been held back in their careers by superiors with negative feelings about them.   He said his complaints to every police commissioner, including defendant Gallagher, did not result in any corrective action, and the Suffolk County Police continues to favor Catholics, while Jewish officers are only promoted in the rare cases where merit is the sole criterion.
B. Plaintiff's Career Before 1997 and His Public Criticism of the Department
In June 1987, when he was a police lieutenant, Mandell testified before the Suffolk County Legislature's Public Safety Committee.   His testimony described the department as insufficiently proactive in fighting organized crime, resistant to change, and more focused on protecting its internal bureaucracy than on protecting the public.   He also set out his view that the “old-boy network” within the department covered up officers' misconduct, including criminal activity, and that racism and anti-Semitism were systemic.   On the following day, plaintiff's photograph and an excerpt from this testimony appeared on the front page of Newsday under the headline, “Suffolk Cop Charges:  ‘They Look Out For Their Own.’ ”
Apparently members of the department were offended because in January 1988 plaintiff was expelled from the Suffolk County Patrolmen's Benevolent Association for having “branded the entire department as racist and anti-semites.”   Plaintiff says his expulsion was another manifestation of the general hostility toward him, triggered by his testimony, that persisted in the department for years.
Later in 1988 Mandell was promoted from lieutenant to captain.   This promotion, like those before it, was not discretionary to the commissioner, but based on a civil service examination, subject to the commissioner's bypass.   As part of the promotion procedure, Mandell's then-supervisor Inspector John J. Stewart wrote an evaluation that gave a generally positive assessment of plaintiff's work as a police officer, describing him as an “acceptable candidate for promotion to the rank of Captain.”   In the evaluation Stewart also stated that plaintiff was “a somewhat controversial individual” and complained that he (Stewart) had spent too much time on issues relating to plaintiff, the media, and internal investigations.   He wrote, specifically underlining the second clause,
While I do not consider that the attitude projected [by plaintiff] should necessarily affect [plaintiff's] suitability for promotion [to captain], I do feel that his attitude should be taken into account when placing him in any future assignment.
This evaluation was placed in plaintiff's personnel file.
A year later plaintiff was promoted to the rank of deputy inspector.   This promotion was distinct from Mandell's preceding promotions because all promotions beyond the rank of a captain were made at the discretion of the police commissioner, who at that time was Daniel Guido.   Unlike the commissioners before and after him, Commissioner Guido was not from Suffolk County;  he was an outsider and a known reformer.   Mandell attributes his promotion to Commissioner Guido's effort to institute a merit-based promotion policy and maintains that after Commissioner Guido's resignation, the department reverted to its “old-boy network's” practices of nepotism and cronyism.   The 1989 promotion to deputy inspector was not only plaintiff's sole discretionary promotion;  it was also his last.
Several years later, in the summer of 1992, at his supervisor's request, Mandell gave an interview to Newsday for its series of articles entitled “Black ‘n’ Blue in Wyandanch:  Summer in the 1st Precinct.”   The series focused on the operation of the predominantly white police force in a predominantly black community of Wyandanch.   The second article quoted plaintiff as saying that the Suffolk County Police had difficulty recruiting black officers because the black community viewed police officers as oppressors.   The article reported, in addition, plaintiff's comment that he had to remove some officers with racist attitudes from covering Wyandanch despite his efforts to screen officers for racist attitudes before assigning them there.
After the publication of the Newsday article, Mandell's co-workers' hostility toward him escalated.   For example, other police officers would not talk to him unless they had to, and two police chiefs expressly warned him that his comments in Newsday might harm his chances for advancement.   Within days of publication, Chief Edwin Michel told him that if he wanted to be a chief he would have to learn to keep his mouth shut, and Chief Gerald Marcoe advised that his career might be adversely affected because he was “still carrying the baggage from having testified,” referring to the 1987 Public Safety Committee testimony.   In January 1993, five months after the interview, Mandell was transferred from the executive officer position he held in the First Precinct to a post of commanding officer in the Staff Services Bureau.   Plaintiff viewed this transfer as punishment because his superiors knew he preferred to work in the more prestigious patrol division rather than in the desk job at Staff Services.
C. Plaintiff's Career During Gallagher's Tenure as Commissioner
In January 1997 defendant John Gallagher became police commissioner of Suffolk County.   The crux of plaintiff's complaint is that Gallagher, who is Irish-Catholic, promoted a pro-Catholic mentality in the department.   At official police functions Gallagher made statements like “[W]e are all good Christians,” and, “[W]e can all work well together because we all went to good Christian schools, were taught by the Christian Brothers and learned good Christian values.”   Defendants respond that Gallagher's statements were innocuous and taken out of context.
During Gallagher's tenure as commissioner, Shomrim, a fraternal organization for Jewish police officers that Mandell co-founded, saw its membership decrease dramatically;  the organization was defunct when plaintiff retired.   Plaintiff contends that this occurred under Gallagher's administration because visibility as a Jew in the department was seen as a liability.
On four separate occasions between 1997 and 1999, Gallagher declined to promote plaintiff to the rank of an inspector:  on August 4, 1997 (one position open);  on September 7, 1998 (two positions open);  on August 30, 1999 (two positions open);  and on November 7, 1999 (one position open).   These promotions went to Catholic officers instead.
When he was passed over the first time in August 1997 Mandell complained to Gallagher about discrimination in the department.   Defendant said he would institute a formal internal affairs investigation.   Dissatisfied with this response, plaintiff wrote a letter on August 25, 1997 to Suffolk County Legislator Maxine Postal. In the letter he criticized Gallagher's decision to forward his discrimination complaint to Internal Affairs, and labeled defendant as “either the most pathetically inept Commissioner that we have ever had or the most devious.”   It is sharply contested whether Gallagher saw a copy of this letter prior to the instant litigation.
In November 1999 Gallagher involuntarily transferred plaintiff, who was then a commanding officer-a top-ranking and decision-making position in a division-to the more subordinate position of executive officer.   This transfer was perceived as a demotion not only by plaintiff but also by his fellow officers who commented that the transfer was not favorable, not in anticipation of a promotion, and that it was plain the department was trying to force plaintiff to resign.
II Proceedings Below
The instant action was commenced in March 1999, with an amended complaint filed in February 2000.   In the amended complaint Mandell contends that the four denials of promotion to inspector in 1997-1999 and the 1999 transfer to executive officer were motivated in part by religious discrimination and in part by retaliation for his public criticism of the department.   At the close of discovery, defendants moved for summary judgment on a number of different grounds.   Concluding that plaintiff had failed to establish a prima facie case of discrimination or to adduce evidence of a causal connection between the two instances of speech and the adverse employment actions at issue, the district court granted defendants summary judgment on all plaintiff's claims.   This appeal ensued.   We affirm, in part, and vacate and remand, in part.
I Standard of Review
A district court's grant of summary judgment is reviewed de novo.  Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.2000).   A district court may award summary judgment only if, after drawing all reasonable inferences and resolving all ambiguities in the non-moving party's favor (here plaintiff), it concludes that no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law.  Fed.R.Civ.P. 56(c).  To overcome such a motion, the non-moving party must offer sufficient proof to allow a reasonable fact-finder to decide in its favor.   In discrimination cases where state of mind is at issue, we affirm a grant of summary judgment in favor of an employer sparingly because “careful scrutiny of the factual allegations may reveal circumstantial evidence to support the required inference of discrimination.”  Graham, 230 F.3d at 38.
II Title VII and State Human Rights Law Claims Against Gallagher
 Although the district court ruled in favor of defendant Gallagher on other grounds, the district court's dismissal of plaintiff's Title VII claims against Gallagher in his personal capacity must be affirmed because under Title VII individual supervisors are not subject to liability.   See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir.2000) (per curiam);  Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir.1995);  see also Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir.1997) (noting that “an appellate court may affirm the judgment of the district court on any ground appearing in the record”).   Individual liability is sometimes possible, however, under New York's Human Rights Law. Gregory v. Daly, 243 F.3d 687, 689 n. 1 (2d Cir.2001);  Tomka, 66 F.3d at 1317.   Since the parties have not briefed this issue, either in the district court or on appeal, and because, as discussed below, we vacate the dismissal of the state Human Rights Law claims against the county, we also vacate the dismissal of those state claims against Gallagher, without prejudice to his raising the issue of individual liability on remand.
III Title VII and State Human Rights Law Claims Against County
 We analyze plaintiff's federal and state law discrimination claims together since in other contexts we have applied federal standards of proof to discrimination claims under the state Human Rights Law. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.), cert. denied, 534 U.S. 993, 122 S.Ct. 460, 151 L.Ed.2d 378 (2001) (age discrimination);  Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir.2000) (sex discrimination);  Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir.1997) (hostile work environment);  Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-15 (2d Cir.1996) (hostile work environment and retaliation).   As the parties do not contend that federal and state standards diverge, we will for purposes of this opinion assume that the standards of proof applicable to plaintiff's Title VII and Human Rights Law claims are the same in all relevant respects.
A. Prima Facie Case
 Mandell's religious discrimination claims are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).   See Meiri v. Dacon, 759 F.2d 989, 994 (2d Cir.1985) (applying the McDonnell Douglas framework to a religious discrimination claim).   At the first stage of the McDonnell Douglas analysis, a plaintiff has the burden of establishing a prima facie case of discrimination by showing that he or she:  (1) is a member of a protected class;  (2) was qualified for the position at issue;  (3) was denied the position;  and (4) that the circumstances of the adverse employment decision give rise to an inference of discrimination.  Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir.2000);  Rosen v. Thornburgh, 928 F.2d 528, 532 (2d Cir.1991).   Defendants do not contest the first three elements, focusing instead on the fourth element, and contending, as they did in the district court, that the circumstances do not give rise to an inference of discrimination.
 The burden of establishing a prima facie case under McDonnell Douglas is minimal.  Howley, 217 F.3d at 150.   In the case at hand, plaintiff's evidence of discrimination falls into three categories:  (1) Gallagher's statements indicating his preference for promotion of Christians or Catholics;  (2) evidence of department culture tolerant of anti-Semitism;  and (3) promotion of Catholic officers on the four occasions at issue.
1. Gallagher's Comments.   At an official police function shortly after he became commissioner, Gallagher addressed members of the department in a speech replete with references to Christian values and Catholic education, including such comments as the “all good Christians” remarks noted earlier.   On another occasion, the commissioner professed his belief in absolute papal authority at a breakfast meeting with department members.   From these statements, a reasonable juror could infer that Gallagher viewed Catholicism-or, more broadly, Christianity-as a necessary part of a good police officer's make-up and that he considered non-Christian officers to be lacking the right make-up.
In his response, Gallagher declares that he mentioned Christian schooling only in pointing out that Chief Monteith and he had attended the same school run by the Christian Brothers order, and the Pope's absolute authority, he said, was used as an analogy to a police commissioner's prerogative to circumvent hierarchical channels of communication and to work directly with officers at the various level of the chain of command.   At the summary judgment stage, however, we must resolve all factual disputes in plaintiff's favor.   Accepting plaintiff's account of Gallagher's comments as true, a reasonable juror could conclude that these comments indicated Gallagher's pro-Christian or pro-Catholic bias.
 The trial court rejected the proof regarding Gallagher's preference for Catholics as insufficient to support a prima facie case of religious discrimination, absent any proof of animus directed specifically at Jews. We think this reasoning was error.   First, contrary to the district court's belief, plaintiff did submit evidence of anti-Jewish animus, which we discuss in a moment.   Second, to establish a claim of religious discrimination, plaintiff does not have to prove that defendants discriminated solely against his religion.   An employer discriminating against any non-Catholic violates the anti-discrimination laws no less than an employer discriminating only against one discrete group, in this case, Jews.
2. Culture of Department.   Anti-Semitic comments and behavior have traditionally been part of the culture of the Suffolk County Police Department.   The facts section detailed the epithets aimed at plaintiff and the department's tolerance for anti-Semitic conduct, such as the coin toss mentioned earlier, which was a reference to the demeaning ethnic stereotype that Jews are “cheap.”   Although most of these examples of overt anti-Semitism pre-date plaintiff's 1989 promotion to deputy inspector, a reasonable juror could find this improved behavior reflects not a change in attitude, but only greater caution by fellow officers regarding their conduct in the presence of an officer who outranked them.
Further support for plaintiff's allegations about the department's culture bias is provided by the affidavit of Rabbi Wartenberg who served as the Suffolk County police chaplain for 20 years.   Although his affidavit contains a number of conclusory characterizations, Rabbi Wartenberg also avers that he had communicated his concern about anti-Semitic attitudes within the department to every commissioner with whom he had worked, including Commissioner Gallagher.   All responded by acknowledging that anti-Semitism was a problem, but failed to take any concrete action to remedy it.   For instance, throughout his tenure as a chaplain, Rabbi Wartenberg said he had never seen an official statement issued by a commissioner condemning anti-Semitism, nor had he ever heard of a police officer receiving punishment beyond chastisement for anti-Semitic conduct.
This proof indicates that department leadership, including Gallagher, knowingly tolerated anti-Semitic attitudes and conduct.   Interpreted in the light most favorable to plaintiff, it suggests an anti-Jewish bias on defendants' part and therefore further supports the assertion that Gallagher's decisions not to promote plaintiff and to transfer him to a subordinate position were motivated by an illegal animus.
3. Promotion of Catholic Officers.   On four occasions Gallagher passed over plaintiff for promotion to inspector in favor of others.   Of the six deputy inspectors promoted in 1997-1999, five were concededly Catholic.   Mandell admittedly does not know the religion of the sixth deputy inspector though he believes he is also Catholic.   Defendants do not dispute the religious backgrounds of the promoted deputy inspectors, declaring instead that such promotions are not proof of discrimination.
 A showing of disparate treatment-that is, a showing that the employer treated plaintiff “less favorably than a similarly situated employee outside his protected group”-is a recognized method of raising an inference of discrimination for purposes of making out a prima facie case.   Graham, 230 F.3d at 39.   A plaintiff relying on disparate treatment evidence “must show she was similarly situated in all material respects to the individuals with whom she seeks to compare herself.”  Id. Ordinarily, the question whether two employees are similarly situated is a question of fact for the jury.   In the instant case, plaintiff has adduced enough evidence to support a finding that the promoted officers and plaintiff were sufficiently similarly situated to support an inference of discrimination.   Mandell and the promoted officers were all qualified and Mandell had greater or comparable seniority, having spent more time in rank and more time in the department than all but one officer of those promoted ahead of him.
In contesting the significance of the promotions, defendants first rely on Gallagher's statement that at the time of the promotions he was not aware of the promoted officers' religious backgrounds.   Additionally, defendants assert that an inference of discrimination is not warranted because on each of the four occasions the pool of candidates included other deputy inspectors with similar or greater seniority than plaintiff's, some of whom Gallagher knew to be Catholic and yet chose not to promote.   Yet, even were Gallagher's denials of knowledge to be believed, it still remains true that in a predominantly Christian department, Gallagher's decision to reject the one known Jewish candidate in favor of a candidate of unknown religion, coupled with his pro-Christian comments, could support an inference of discrimination. In any event, we think the proof detailed in (1), (2), and (3) is sufficient to satisfy plaintiff's minimal prima facie burden.
B. Defendants' Proffer of Legitimate Nondiscriminatory Reasons
 Given that plaintiff has established a prima facie case of discrimination, we now turn to the remaining two stages of the McDonnell Douglas analysis.   Under McDonnell Douglas, once plaintiff establishes a prima facie case, a presumption arises that his employer unlawfully discriminated against him.  Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).   To rebut this presumption, the employer must come forward with admissible evidence of legitimate nondiscriminatory reasons for its adverse actions toward plaintiff.   See id.
With respect to the August 1997 promotion, Gallagher's deposition testimony provides sufficient evidence of legitimate reasons for his decision not to promote plaintiff.   Gallagher testified that in evaluating candidates for the August 1997 promotion he relied heavily on the recommendations of police chiefs and the deputy commissioner.   Several of the chiefs as well as precinct community leaders recommended the officer ultimately promoted at that time, Deputy Inspector Hamann.   In addition, Gallagher maintains that he chose Hamann because Hamann was already working in the precinct where the vacancy existed, and was therefore familiar with conditions there.
Gallagher further attributes his decision not to promote plaintiff to the negative impression plaintiff made on him during a 1997 interview.   He states in vague terms that Mandell “did not project the image ․ of someone who has a positive grasp” of some unspecified “areas” of interest to Gallagher.   While defendant does not clarify what particular “image” he was seeking, it appears that the negative impression stemmed at least in part from plaintiff's reaction during the interview to Gallagher's expressed preference for promoting an officer from within the precinct.   Plaintiff told Gallagher he considered this approach unfair because it disadvantaged officers in support services functions, a position Mandell then held.
Gallagher's testimony also provides evidence of nondiscriminatory reasons for the post-1997 denials of promotion.   Gallagher explains that he chose not to promote Mandell on those three occasions because of plaintiff's derogatory comments about him in the letter sent to County Legislator Postal, which plaintiff wrote after being passed over for the August 1997 promotion.   The letter characterized Gallagher as either “inept” or “devious,” and it further labeled him a “modern day version of Pontius Pilate” because plaintiff thought that by referring his discrimination complaint to the Internal Affairs Bureau, Gallagher washed his hands of the anti-Semitism problem in the department.   Gallagher maintains that he received a copy of the letter prior to the September 1998 round of promotions and was influenced by its content, as well as by the negative impression made on him by Mandell's 1997 interview.
 Defendants do not articulate any basis for the 1999 transfer from commanding officer to the more subordinate position of executive officer.   In fact, in their briefs in the district court and here, defendants address the transfer claim primarily by stating that officers other than plaintiff have also been transferred from commanding officer positions to executive officer positions.   Without any evidence with respect to the circumstances of these transfers, the fact they occurred is not relevant to our analysis.   Accordingly, defendants failed to carry their burden of establishing legitimate nondiscriminatory reasons for the demotion, and the dismissal of plaintiff's claim of discriminatory transfer must be vacated.
C. Plaintiff's Ultimate Burden of Establishing Discrimination
 Once the employer produces evidence of legitimate reasons for its actions, the burden shifts back to the plaintiff to prove, by a preponderance of the evidence, that the real reason for the adverse employment decision was discrimination.   Although plaintiff is not required to show “that the employer's proffered explanation is unworthy of credence,” evidence of pretext may help plaintiff carry his ultimate burden on this final stage of the McDonnell Douglas analysis.  Burdine, 450 U.S. at 256, 101 S.Ct. 1089.
As noted above, defendants have established legitimate reasons for the 1997-1999 denials of promotions but not for the 1999 transfer.   Accordingly, our analysis on the final stage of the McDonnell Douglas framework is limited to plaintiff's claims of illegally denied promotions.
Mandell presented evidence suggesting that defendants' reliance on plaintiff's letter to Legislator Postal as a reason for denying plaintiff promotions is pretext.   Legislator Postal and her assistant, who handles Postal's correspondence, submitted affidavits stating that they never showed plaintiff's letter to anyone or copied it, and that their practice generally is to treat all incoming correspondence as confidential.   Plaintiff similarly denies ever forwarding a copy of his letter to anyone.   From this proffer, a trier of fact could find, contrary to defendants' assertions, that Gallagher did not see the letter until the commencement of this law suit and that defendants may therefore be using the letter as a pretext to cover up a discriminatory motive.   See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
 Further, even though plaintiff does not present evidence directly contradicting defendants' remaining stated reasons for not promoting him-plaintiff's 1997 interview with Gallagher and, with respect to the 1997 round of promotions, chiefs' recommendations of Hamann and Hamann's greater knowledge of the precinct-this failure is not fatal to plaintiff's claims.   We have previously cautioned that an employer may not rely solely on wholly subjective and unarticulated standards as a basis for its promotion decisions.  Byrnie v. Town of Cromwell, Bd. Of Educ., 243 F.3d 93, 104 (2d Cir.2001).   An employer's explanation of its legitimate nondiscriminatory reasons must be “clear and specific.”  Meiri, 759 F.2d at 997.   Here, Gallagher's explanation of the negative impact of the 1997 interview is couched in vague and general terms since the “positive image” that, in his view, plaintiff failed to project is not described in any concrete terms.   Given plaintiff's evidence of Gallagher's pro-Christian statements at official police functions, a reasonable factfinder could believe that the sought-after “positive image” incorporated Christian religious affiliation and that Gallagher refused to promote plaintiff because plaintiff did not meet that requirement.   Gallagher admittedly knew that plaintiff was Jewish and therefore, even without knowing the other candidates' religion, could have chosen to avoid plaintiff as the one known non-Christian candidate.
Defendants are on more solid ground in relying on police chiefs' recommendations of Hamann and on Hamann's prior knowledge of the precinct as a basis for Gallagher's decision to promote him rather than plaintiff in 1997.   Plaintiff has not produced any evidence of anti-Semitic comments or conduct by the five chiefs who submitted recommendations to Gallagher.   Contrary to plaintiff's argument, his own and Rabbi Wartenberg's generalized descriptions of pervasive anti-Semitism within the department are not sufficient to support an inference that those five police chiefs' recommendations were in fact tainted by anti-Semitic sentiment.   But even here the ultimate decision to accept these recommendations was Gallagher's.   Because, as discussed above, plaintiff has presented evidence indicating Gallagher's pro-Christian bias, we cannot conclude that proof of the police chiefs' recommendations entitles defendants to judgment as a matter of law.
In sum, we think that based on the evidence submitted in support of plaintiff's prima facie case and on plaintiff's evidence of pretext, a reasonable juror could find that defendants' 1997-1999 decisions not to promote plaintiff to the rank of inspector were motivated by religious discrimination.   We must therefore vacate the dismissal of plaintiff's claims of discriminatory failure to promote under Title VII and the Human Rights Law.
IV 42 U.S.C. § 1983:  First Amendment Retaliation
Analysis turns to plaintiff's claim of First Amendment retaliation under 42 U.S.C. § 1983.   Mandell alleges that, by failing to promote him to the rank of inspector in 1997-1999 and by transferring him to the position of executive officer in 1999, defendants illegally retaliated for his public criticism of the department before the County's Public Safety Committee in 1987 and for his 1992 interview with Newsday.   The district court summarily rejected this claim for lack of proof of causal connection between the speech and the alleged adverse employment actions.   On appeal, defendants additionally insist that plaintiff's speech does not enjoy constitutional protection, that he suffered no adverse employment actions, and that he failed to establish a basis for the County's liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).   Further, they maintain that Gallagher is entitled to qualified immunity.
A. Retaliation in General
 Although a public employee “does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment,” these rights are not absolute, because the government, as an employer, has a legitimate interest in regulating the speech of its employees to promote the efficiency of its public services.  Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)).   The extent of permissible government regulation of speech under these circumstances is determined by balancing the interest of the employee, in his role as a citizen, in commenting on matters of public concern against the interest of the government, in its role as an employer, in promoting the efficiency of the services it performs through its employees.  Morris v. Lindau, 196 F.3d 102, 109-10 (2d Cir.1999).
 Before reaching this balancing test a court must be satisfied that a plaintiff claiming First Amendment retaliation has demonstrated that:  (1) his speech addressed a matter of public concern, (2) he suffered an adverse employment action, and (3) a causal connection existed between the speech and the adverse employment action, “so that it can be said that his speech was a motivating factor in the determination.”  Id. at 110;  see also Locurto v. Safir, 264 F.3d 154, 166 (2d Cir.2001) (describing elements of First Amendment Retaliation claim).   If the plaintiff produces evidence of these three elements, the government may nevertheless escape liability on either one of two separate rationales.   One way the government may prevail is by demonstrating by a preponderance of the evidence that it would have taken the same adverse action in the absence of the protected speech.  Morris, 196 F.3d at 110.   Alternatively, the government may show that plaintiff's speech was likely to disrupt the government's activities, and the likely disruption was “sufficient to outweigh the First Amendment value of plaintiff's speech.”  Locurto, 264 F.3d at 166.   If the government relies on the latter rationale and the balance of interests indeed weighs in the government's favor, plaintiff may still succeed by proving that the adverse action was in fact motivated by retaliation rather than by fear of disruption.  Id.
B. Retaliation in This Case
 Applying these principles to Mandell's case, we find wholly unpersuasive defendants' contention that plaintiff's 1987 Public Safety Committee testimony did not enjoy a constitutionally protected status because it was a disgruntled employee's complaint about his own promotional opportunities.   Such characterization of Mandell's testimony finds no support in the record.   As a general rule, speech on “any matter of political, social, or other concern to the community” is protected by the First Amendment.   Connick, 461 U.S. at 146, 103 S.Ct. 1684.   Plaintiff's testimony criticized the department's approach to fighting organized crime, its resistance to change, and its systemic racism and anti-Semitism.   All these subjects are clearly matters of public concern.
 Similarly meritless is defendants' contention that plaintiff suffered no adverse employment action.   Adverse employment actions include both refusals to promote and demotions.  Morris, 196 F.3d at 110.   It is undisputed that defendants refused to promote plaintiff to the rank of an inspector, and that the 1999 transfer placed plaintiff in a position subordinate to the one he had previously held.
 Again, defendants maintain plaintiff failed to establish a causal connection between his public criticism of the Suffolk County Police and the adverse employment decisions.  “Causation can be established either indirectly by means of circumstantial evidence, for example, by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus.”  Id. at 110.   We think Mandell adduced sufficient direct evidence of retaliatory animus to create a triable question of fact on this issue.   Several reasons lead us to this result.
The 1988 letter expelling plaintiff from the Suffolk County PBA expressly stated that he was being removed for having “branded the entire department as racist and anti-semites.”   This expulsion shows that, at least during the months following Mandell's testimony, a substantial number of police officers viewed the testimony as a betrayal of the department.   An evaluation placed in plaintiff's personnel file in May 1988 contained negative comments and recommendations plainly brought on by that testimony.   Specifically, Inspector Stewart wrote negatively about plaintiff and although the inspector did not recommend denial of plaintiff's next promotion-the non-discretionary promotion to the rank of a captain-he did emphasize that Mandell's “attitude should be taken into account when placing him in any future assignment.”   Because this evaluation was placed in plaintiff's file, it could have reasonably impacted Mandell's career opportunities in the ensuing years.
Further, during the days following the Newsday interview, Chief Michel told plaintiff that he would have to learn to keep his mouth shut, and Chief Marcoe told him that his career might be adversely affected because of the “baggage” created by his 1987 testimony.   The latter comment suggests that negative attitudes towards Mandell caused by that testimony lingered for at least five years.   Because both Michel and Marcoe were among those chiefs who recommended candidates other than plaintiff for the 1997 promotion to inspector, a reasonable factfinder could find their comments indicate a retaliatory animus that influenced their decision not to recommend plaintiff.
Defendants urge that the substantial time lapse between plaintiff's speech and the adverse employment actions precludes a finding of causation.   They correctly point out that to provide an independent basis for an inference of causation, temporal proximity must be significantly greater (meaning that the time lapse must be shorter than it is in this case).   See, e.g., Morris, 196 F.3d at 113-14 (holding that absent other evidence of retaliatory motivation, no inference of causation follows from fact of adverse action occurring two years after speech).   It should be noted that Morris, the case defendants primarily rely on, was an employment termination case.   It makes logical sense that if an employer wishes to retaliate by firing an employee, he is likely to do so soon after the event.   In a failure to promote case, however, the opportunities for retaliation do not necessarily immediately present themselves.   Be that as it may, however, plaintiff here does not rely on temporal proximity as affirmative evidence of causation.   He offers instead direct evidence of retaliatory animus discussed above.   Further, some of plaintiff's evidence-namely, Inspector Stewart's evaluation and Chief Marcoe's 1992 reference to the “baggage” of the 1987 testimony-indicates that plaintiff's criticism of the Suffolk County Police may have had a lasting effect on plaintiff's career.   In light of this evidence, we cannot conclude that the time lapse, though admittedly lengthy, conclusively establishes lack of causation.
Defendants also declare that an inference of causation is not justified because Gallagher said he was not aware of plaintiff's negative statements about the department until after the 1997 denial of promotion, and because plaintiff received one discretionary promotion after his 1987 testimony.   Yet, a trier of fact does not have to believe Gallagher's denials of knowledge, since in making his 1997 promotion decision Gallagher consulted police chiefs who were aware of both the testimony and the interview.   Further, Gallagher's denials of knowledge, even if truthful, are not dispositive because, as noted a moment ago, Gallagher's choice in 1997 was based on recommendations of police chiefs, two of whom had made statements indicative of retaliatory animus.   Moreover, Gallagher's asserted lack of knowledge is irrelevant to the remaining denials of promotions and to the 1999 transfer decision, as Gallagher admittedly reviewed plaintiff's 1987 testimony shortly after the 1997 denial of promotion.
Nor does plaintiff's claim of retaliation fail because of his 1989 promotion to deputy inspector.   First, no promotions followed the 1992 Newsday interview, the second instance of protected speech.   Second, a reasonable juror could find that Commissioner Guido's administration in 1989 had a fairer and more merit-driven promotion policy than Gallagher's administration in 1997-1999.
As a consequence, we believe plaintiff submitted adequate proof to support a finding that his public criticism of the department affected defendant Gallagher's promotion and transfer decisions.
 Finally, we reject defendants' argument that the state's interest in regulating Mandell's speech outweighed his interest in the speech simply because when he gave his Newsday interview he held the rank of deputy inspector.   Defendants advanced no reason why the interview was likely to disrupt the department's operations, nor has our own review of the Newsday article revealed any basis for such a conclusion.   See Lewis v. Cowen, 165 F.3d 154, 162 (2d Cir.1999) (“The government bears the burden of demonstrating that the speech threatens to interfere with government operations.”).
C. Municipal Liability
 A municipal entity may be liable under 42 U.S.C. § 1983 only if the alleged constitutional violation was caused by the entity's “policy or custom.”  Monell, 436 U.S. at 694, 98 S.Ct. 2018.   The “policy or custom” requirement, however, “is intended simply to distinguish acts of the municipality from acts of its employees, in order that municipal liability be limited to conduct for which the municipality is actually responsible.”   Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 142 (2d Cir.1999).   Thus, if the challenged action is directed by an official with “final policymaking authority,” the municipality may be liable even in the absence of a broader policy.   See Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (“Municipal liability attaches only where the decision-maker possesses final authority to establish municipal policy with respect to the action ordered.”).   Here, plaintiff challenges as retaliatory employment decisions made by Gallagher, who, as the Suffolk County police commissioner, had authority to set department-wide personnel policies.   Gallagher's position provides a sufficient basis for holding the County liable for his adverse decisions with respect to plaintiff.
D. Qualified Immunity
 Under the doctrine of qualified immunity, a government official performing discretionary functions is shielded from liability for civil damages if his conduct did not violate plaintiff's clearly established rights or if it would have been objectively reasonable for the official to believe that his conduct did not violate plaintiff's rights.   See, e.g., Lewis, 165 F.3d at 166-67 (describing the qualified immunity doctrine).   Where specific intent of a defendant is an element of plaintiff's claim under clearly established law, and plaintiff has adduced sufficient evidence of that intent to defeat summary judgment, summary judgment on qualified immunity grounds is inappropriate.   See Locurto, 264 F.3d at 169-70;  Sheppard v. Beerman, 94 F.3d 823, 828 (2d Cir.1996).   In the present case retaliatory intent is an element of plaintiff's claim, and we have already noted that plaintiff's evidence of retaliatory animus is sufficient to make defendants' motivation a triable issue of fact.   Until that issue is resolved by a factfinder, therefore, the retaliation claim against defendant Gallagher cannot be dismissed on qualified immunity grounds.
In sum, we conclude that the district court erred in dismissing Mandell's retaliation claim for lack of evidence of causation.   And because defendants' remaining arguments lack merit, we must vacate the dismissal of this claim and remand it to the trial court.
For the foregoing reasons, we affirm the dismissal of the Title VII claim against Gallagher in his personal capacity, vacate the district court's judgment in all remaining respects, and remand the case to the district court for further proceedings not inconsistent with this opinion.
CARDAMONE, Circuit Judge.

Wednesday, June 12, 2019

Joan Mazur fails To Win Her Discrimination Case (2014)

 Often a decision in State and/or Federal Court gives citations that can help others who decide to file similar complaints.

I am posting the Judge's decision in Joan Mazur v NYC Department of Education as one of those, even though Ms. Mazur lost. The school: Grover Cleveland High School in Queens, N.Y.

 Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Mazur v. N.Y.C. Dep't of Education
 United States District Court, S.D. New York., Sep 16, 2014
53 F. Supp. 3d 618 (S.D.N.Y. 2014)

ANALISA TORRES, District Judge

Steven Anthony Morelli, The Law Office of Steven A. Morelli, Paul Andrew Bartels, Law Office of Louis D. Stober, Jr., LLC, Garden City, NY, for Plaintiff.

Amy Jacobson Kessler, Ricardo Tapia, Jr., NYC Law Department, New York, NY, for Defendants.


ANALISA TORRES, District Judge:

In 2003, Plaintiff, Joan Mazur, a 49–year–old teacher, began working at Grover Cleveland High School in Queens, New York. In 2008, she injured her ankle and was absent from school for six weeks. Plaintiff claims that after her injury, her supervisor, Assistant Principal Regina Dominguez, began to treat her unfairly by giving Plaintiff unjustified, negative reviews and burdening her with extra work. The New York City Department of Education (“DOE”) referred administrative charges against Plaintiff in 2010 and 2012. Hearings were held in both instances, and Plaintiff was twice disciplined. Plaintiff alleges that Defendants, Dominguez and the DOE, discriminated against her on the basis of her age and disability and created a hostile work environment in violation of 42 U.S.C. § 1983, the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), New York State Executive Law § 290 (“NYSHRL”), and Title 8 of the New York City Administrative Code (“NYCHRL”). Plaintiff also alleges that Defendants retaliated against her for filing discrimination complaints. Because Defendants have shown that a reasonable jury could not find that Plaintiff was discriminated against, Defendants' motion for summary judgment is GRANTED.


I. Plaintiff's Prior Employment at the Department of Education

Plaintiff began working for the DOE as a substitute teacher in 1988. Pl. 56.1 Counter–Statement of Material Facts (“Pl. 56.1”) ¶ 2. She stopped working for the DOE in 1994 but continued to work in other educational settings for the next decade. Pl. 56.1 ¶ 3. Plaintiff began working for the DOE again in 2003 at Grover Cleveland High School as a Spanish teacher and an English as a Second Language (“ESL”) teacher. Pl. 56.1 ¶ 4. She briefly taught at Far Rockaway High School from 2004 to 2005 and then returned to teach at Grover Cleveland for the 2005–2006 school year up through the 2011–2012 school year. Pl. 56.1 ¶ ¶ 6–7. Plaintiff received tenure in 2006. Pl. 56.1 ¶ 10.

II. 2003–2007 School Years

When Plaintiff began at Grover Cleveland, she was supervised and reviewed by Assistant Principal Ana Zambrano–Burakov. Pl. 56.1 ¶ 5. In a December 8, 2003 classroom observation, Zambrano–Burakov rated Plaintiff's lesson as satisfactory and offered several recommendations for improvement, including writing more detailed lesson plans and asking Plaintiff to share copies of the plans with Zambrano–Burakov for her review. Pl. Ex. E, at 313. For Plaintiff's 2003–2004 annual professional performance review, Plaintiff received a satisfactory rating. The 2003–2004 review also noted nine absences. Pl. Ex. E, at D000098. At the time, Dominick Scarola was the Principal of Grover Cleveland and signed off on Plaintiff's annual performance reviews. Pl. 56.1 ¶ 15. Beginning in 2005, Assistant Principal Regina Dominguez became Plaintiff's supervisor. Dominguez is three years older than Plaintiff. Pl. 56.1 ¶ 8, 14. In a December 6, 2006 classroom observation, Dominguez rated Plaintiff's lesson as satisfactory. Pl. Ex. E, at 309. As part of her recommendations for improvement, Dominguez suggested that Plaintiff collect and review homework and have students correct the grammar in their work before reading it. In her 2005–2006 annual performance review, Plaintiff received a satisfactory rating, and the review noted ten absences. Pl. Ex. E, at D000097. In another classroom observation conducted on March 20, 2007, Plaintiff received a satisfactory rating from Dominguez. Suggestions for this lesson included having a tardy log out and visible, adhering to class rituals and procedures, and managing lesson time better. Pl. Ex. E, at 307. Plaintiff received a satisfactory rating for her 2006–2007 annual performance review, and the review noted six absences. Pl. Ex. E, at D000096.

III. 2008–2009 School Year

In February 2008, Plaintiff sprained her ankle and did not return to Grover Cleveland for approximately six weeks until April 8 or April 9. Pl. Ex. D (“Mazur Dep.”) 31:12–14, 34:7–13. Plaintiff was unable to drive and required assistance walking during the six-week period. Mazur Dep. 33:15–24. While Plaintiff was out, she exchanged “[a] few telephone calls and a few emails” with Dominguez in which Dominguez asked about when Plaintiff might return, potential substitutes for Plaintiff's class, and other things. Mazur Dep. 35:10–23.

In her deposition, Plaintiff described Dominguez's tone on the telephone as “very annoyed, very irritated, [and] very angry.” Mazur Dep. 36:11. When asked whether there was anything discriminatory or any mention of her age in the email exchanges between Plaintiff and Dominguez, Plaintiff said that there was nothing discriminatory but that Plaintiff was being very accommodating because most teachers on sick leave did not offer to assist while out. Mazur Dep. 40:25–41:22. Plaintiff said the usual approach to leave was “I'm home sick and that's the end of it and you'll see me when I get back.” Mazur Dep. 41:10–12. When Plaintiff returned to Grover Cleveland, her relationship with Dominguez was “still cordial.” Mazur Dep. 42:15–18.

Dominguez conducted a classroom observation of Plaintiff in June 2008 and gave her a “minimally satisfactory” rating. Def. Ex. M. The observation made several recommendations, including making grammar corrections first before reading assignments and managing lesson time better. Plaintiff's annual performance review, dated June 28, 2008 and covering the 2007–2008 school year, rated Plaintiff as satisfactory and indicated thirty absences. Def. Ex. N.

On December 18, 2008, Dominguez conducted a classroom observation of Plaintiff and rated her lesson as unsatisfactory. Def. Ex. O. The report stated that the lesson was wanting “because there were major problems due to your failure to implement a well planned lesson” and the lesson was “sketchy” and “incomplete.” Def. Ex. O. The report listed several areas where Plaintiff's performance had been deficient, including her failure to collect homework, failure to adhere to rituals, and failure to manage lesson time appropriately. Although Plaintiff disagreed with the criticisms and recommendations in the observation, Plaintiff did not believe that her unsatisfactory rating in December 2008 was connected to her age but rather to her ankle injury. Mazur Dep. 60:4–7.

As a result of the unsatisfactory observation, Dominguez requested that Plaintiff provide her with her weekly lesson plans in order to allow Dominguez to review and assist Plaintiff in her planning techniques. Def. Ex. O. In a “Log of Assistance,” dated March 4, 2009, Dominguez offered to meet with Plaintiff regarding her course instruction and suggested that Plaintiff observe two other ESL teachers, Ms. Mosquea and Ms. Rozos. Def. Ex. P. Plaintiff observed the two other ESL teachers, who were both younger than Plaintiff, and noted in her deposition that the ESL teachers were more skilled in using classroom technology and that this was a “very good thing.” Mazur Dep. 64:11–66:18. Plaintiff ultimately received a satisfactory rating in her 2008–2009 annual performance review and report, and the review noted fifteen absences. Def. Ex. Q.

IV. 2009–2010 School Year

During the 2009–2010 school year, Dominguez conducted classroom observations on October 22, 2009, March 11, 2010 and March 18, 2010, and she rated Plaintiff's lessons as satisfactory on these occasions. Def. Exs. R, S, T. Some of the recommendations for improvement included better lesson structure and time management. See, e.g., Def. Ex. S. At Plaintiff's deposition, Plaintiff agreed with the October rating and did not believe that there was anything discriminatory about the October observation. Mazur Dep. 74:6–11. Although Plaintiff believed that Dominguez wanted to give her an unsatisfactory rating, she said that Dominguez “wanted to work on one teacher at a time” and had already planned to give another teacher an unsatisfactory rating. Mazur Dep. 75:1–19. Plaintiff conceded that the other teacher who ultimately received an unsatisfactory rating was fifteen years younger than Plaintiff, and Plaintiff did not believe her October satisfactory rating was connected to her 2008 ankle injury. Mazur Dep. 76:6–12. Similarly, although Plaintiff believed that the March satisfactory ratings were subjective, Plaintiff did not think that the March observation rating was connected to her age or her ankle injury. Mazur Dep. 79:1–19; 80:1–3.

By letter dated April 29, 2010, Assistant Principal Thadia Louis admonished Plaintiff for her excessive tardiness and absenteeism. Def. Ex. U. The letter stated that Louis, Plaintiff, and Plaintiff's union representative Brian Gavin had met on October 22, 2009 and on April 28, 2010 to discuss the absences and that continued infractions would result in an unsatisfactory rating and/or termination.

In her 2009–2010 annual performance review, Plaintiff received an overall rating of unsatisfactory due to unsatisfactory “[a]ttendance and punctuality.” Def. Ex. V. The review indicated that Plaintiff had been absent more than thirteen days. Plaintiff did not understand why she was rated unsatisfactory, as she had received satisfactory ratings throughout the year and she had not received an unsatisfactory rating in previous years despite having more absences and unsatisfactory observations. Mazur Dep. 81:10–82:7. Plaintiff appealed the unsatisfactory rating, but it was upheld. Mazur Dep. 87:23–90:5.

V. The First Disciplinary Hearing

As a result of Plaintiff's tardiness and absenteeism, the DOE brought administrative charges against Plaintiff in September 2010. Mazur Dep. 90:6–11. Pursuant to New York Education Law 3020–a and Plaintiff's union contract, Plaintiff participated in a disciplinary hearing for tenured teachers (a “3020–a hearing”) in October 2010 that was presided over by impartial hearing officer Arthur A. Riegel. Def. Ex. W; Mazur Dep. 90:17–22. Plaintiff was represented by counsel and had the opportunity to present evidence and question witnesses. At the hearing, the DOE provided a record of Plaintiff's tardiness and absences and argued that such behavior undermined the students' education and burdened the school's administrators, teachers and budget. Def. Ex. W, at D000057. Plaintiff admitted that the tardiness was her own fault and due to traffic in her commute, but she argued that it minimally impacted her students because other teachers covered for her. Regarding her absences, Plaintiff did not deny that she was often absent but argued that it resulted from “various health issues, ranging from common colds, and viruses she has caught from students to minor surgery.” Def. Ex. W, at D000058.

On November 5, 2010, the hearing officer found that Plaintiff had been excessively tardy and absent in the 2008–2009 and 2009–2010 school years and fined her $2,500, Def. Ex. W, at D0000610. Regarding the 2008–2009 school year, he found that although Plaintiff had submitted medical documentation to account for some of the absences, “none of the medical notes submitted give reason as to why [Plaintiff] is unable to go to work. The medical notes are vague and insubstantial, often indicating that the teacher has a ‘medical problem’ and otherwise simply positing that she has come into the office to see the doctor.” Def. Ex. W, at D000059. The hearing officer also found that Plaintiff failed to notify the school in a timely manner and that her attitude toward attendance reflected a poor understanding of her role and influence on students. Def. Ex. W, at D000059. Regarding the 2009–2010 school year, the hearing officer similarly found that the medical notes were “insubstantial” and that Plaintiff's absences occurred in a suspect pattern on Mondays, Fridays, or near extended weekends or holidays, thereby undermining her credibility. Def. Ex. W, at D000060. The hearing officer concluded that “[g]iven the fact that the teacher does not suffer from a chronic ailment or serious medical condition, coupled with the number and suspicious nature of her absences, [Plaintiff's] defense is rendered .” Def. Ex. W.

VI. 2010–2011 School Year

On September 30, 2010, Dominguez and two other assistant principals observed Plaintiff's lesson. Plaintiff received an unsatisfactory rating. Def. Ex. X. The observation noted a failure to correct or address previous recommendations, including a lack of classroom rituals and a failure to make corrections first or review homework. As a result, Dominguez required Plaintiff to provide certain materials such as weekly ESL lesson plans, corrected exams, grade books and parent outreach logs for her review. In a February 17, 2011 letter following up on a recent meeting between Plaintiff and Dominguez, Dominguez provided a list of recommendations that she had made to Plaintiff, including observing three other teachers. Def. Ex. Y. On March 11, 2011, Dominguez sent another letter to Plaintiff stating that Dominguez had not received any of the materials requested in the February 17, 2011 letter and requesting that they be delivered immediately. Def. Ex. Z.

On March 25, 2011, Plaintiff attended a meeting with Dominguez, Gavin and Celia Foster, an assistant principal. According to a March 26, 2011 letter memorializing the meeting, the parties discussed Plaintiff's ongoing obligation to provide Dominguez with the materials requested in the October observation. Def. Ex. AA. After Plaintiff failed to provide a copy of her lesson plan for the week of April 4, Dominguez sent her another letter on April 5, 2011 reminding Plaintiff of their recent discussions and Plaintiff's obligations. Def. Ex. BB.

Dominguez conducted a classroom observation on May 20, 2011 and rated Plaintiff's lesson as satisfactory. Def. Ex. CC. Recommendations from the observation included having students make grammar corrections first and incorporating more diverse instructional methods. However, Plaintiff received an unsatisfactory rating during her annual performance review for the 2010–2011 school year. Def. Ex. EE. The review indicated that Plaintiff had been deficient in areas including attendance and punctuality, control of class, planning, and attention to routine. Def. Ex. EE. The review also noted eleven days of absences.

VII. 2011–2012 School Year

For the 2011–2012 school year, Grover Cleveland was designated as a failing school in need of improvement. As a result, the school was required to implement a new evaluation system categorizing lessons as “effective” or “ineffective.” Def. Ex. C, at 5, 49–50.

Throughout the 2011–2012 school, Plaintiff worked with Maria Rozos, a “Master Teacher” who was selected to assist and train other teachers in need of assistance. Def. Ex. RR; Mazur Dep. 63:25–64:10. Plaintiff indicated at her deposition that the teachers she observed made similar errors to the ones noted in her observation reports. Mazur Dep. 66:16–67:4. For example, Plaintiff stated that while she was criticized for allowing students to work independently instead of in pairs, she observed Rozos allowing students to work independently as well. Mazur Dep. 69:18–70:9.

On September 27, 2011, Dominguez conducted an observation along with Mary Brouder, a “talent coach” brought in to Grover Cleveland to aid in implementing a new observation system and assist the failing school. Def. Ex. C, at 24; Def. Ex. FF. Plaintiffs lesson was rated ineffective. Def. Ex. FF. The report indicated that Plaintiff lacked commitment as evidenced by the lack of a well-defined lesson plan and recommended that Plaintiff better implement classroom rituals and procedures. On December 7, 2011, Dominguez and Brouder again observed Plaintiff's lesson and again rated it ineffective. Def. Ex. GG.

On January 4, 2012, Dominguez met with Plaintiff, Gavin and Principal Denise Vittor, who had replaced Scarola, and discussed Plaintiff's pre-observation requirements and Plaintiff's continuing obligation to provide Dominguez with lesson plans. Def. Ex. JJ.

Plaintiff filed a lawsuit in Supreme Court, New York County on January 12, 2012, alleging discrimination on the basis of age and disability. Plaintiff also filed a Charge of Discrimination with the New York State Division of Human Rights on March 15, 2012. Def. Ex. UU.

On March 22, 2012, Plaintiff met with Assistant Principal Gregory Ambrosini and Gavin. At the meeting, Plaintiff's tardiness/absence record of 15.2 days was discussed, and Plaintiff was reminded that she could face additional disciplinary action if it continued. Def. Ex. KK.

On May 30, 2012, Vittor conducted an observation of Plaintiff's lesson and rated it unsatisfactory. Def. Ex. NN. The observation noted that none of the recommendations from the January 4, 2012 meeting had been implemented.

On June 1, 2012, Ambrosini again met with Plaintiff and discussed the issue of her excessive tardiness and absences. That day, in a follow-up letter to Plaintiff, Ambrosini listed the dates on which Plaintiff had been late or absent and warned that continued tardiness and absences would result in additional disciplinary measures. Def. Ex. MM. The letter also noted that Plaintiff had offered to summarize the circumstances surrounding the absences. Plaintiff received an unsatisfactory rating for her 2011–2012 annual performance review. Def. Ex. QQ. The review indicated that Plaintiff performed unsatisfactorily in a number of areas such as attendance and punctuality, professional attitude and growth, planning and skill, and attention to records and routine matters. The review also stated that Plaintiff had been absent approximately twenty days during the school year.

VIII. The Second Disciplinary Hearing

On June 19, 2012, the DOE suspended Plaintiff with pay and referred eight administrative charges against her. Def. Ex. SS. At the end of 2012 and the beginning of 2013, Plaintiff, who was represented by the same counsel as in this litigation, and the DOE participated in a 3020–a hearing on these charges. Def. Ex. C. Impartial hearing officer Haydee Rosario presided over the ten-day hearing in which both parties presented evidence and questioned witnesses. At the hearing, Vittor, Dominguez, Ambrosini, payroll secretary Maria Avengo and Rozos testified on behalf of the DOE while Plaintiff, Zambrano–Burakov, Gavin and Marilene Duarte testified on behalf of Plaintiff.

Dominguez testified that she was frustrated by Plaintiff's lack of interest in her professional development and that Plaintiff “took no real initiative and did not implement most of the recommendations given to her.” Def. Ex. C, at 32–33. Rozos testified about the assistance she had provided to Plaintiff and stated that although she regularly met with Plaintiff, Plaintiff “did not incorporate any of her suggestions and noted [Plaintiff] conducted her lesson with[out] the lesson plan without incorporating any of [Rozos'] suggestions.” Def. Ex. C, at 35.

In her defense, Plaintiff argued at the hearing that Dominguez was overzealous, that the DOE was subjective and arbitrary in reviewing and disciplining her, and that she was required to start submitting lesson plans after her ankle injury in 2008 and this requirement was burdensome and discriminatory. Plaintiff also maintained that experienced teachers did not need a detailed lesson plan. Plaintiff's union representative testified at the hearing that teachers were required to formulate a lesson plan on a daily basis and that supervisors could request them if a teacher had been rated unsatisfactory. Def. Ex. C, at 15. He also noted that complaints had been raised about Dominguez overworking teachers but that no other teachers complained about the request for lesson plans. Def. Ex. C, at 16.

On October 2, 2013, Rosario issued an opinion and award finding that the administrative charges were sustained and that the DOE had cause to discipline Plaintiff. Rosario credited the testimony and explanations of the DOE witnesses, and particularly the testimony of Rozos, who Rosario found to be genuinely interested in aiding Plaintiff and not involved in the evaluations or the outcome of the hearing. Def. Ex. C, at 53. Rosario also noted that former principal Scarola had recommended specific improvements to Plaintiff's lesson plans as early as 2003, which demonstrated that criticisms of Plaintiff's lessons did not begin only after her ankle injury. Regarding Plaintiff's discrimination defenses, Rosario did not find them credible because there was no evidence suggesting that Dominguez had harbored a grudge for several years after Plaintiff's injury and because the deficiencies in Plaintiff's teaching had been documented and confirmed by multiple sources. Def. Ex. C, at 54–55. Rosario stated, “it is clear from a review of this record that [Plaintiff] essentially admits the underlying conduct ... even though she denies any wrongdoing and challenges her unsatisfactory observation ratings.” Def. Ex. C, at 56. In determining the appropriate penalty, Rosario noted Plaintiff's inability to understand the impact of her tardiness and absences must be addressed. Rosario concluded that Plaintiff's unwillingness to change her teaching was “rooted in [Plaintiff's] honest belief that after twenty plus years of teaching she knows what she is doing and that her teaching is beyond reproach simply because she is an experienced teacher. The undisputed record evidence clearly demonstrates that this is not the case.” Def. Ex. C, at 58–59.

As a result of her findings, Rosario suspended Plaintiff without pay from November 1, 2013 through June 30, 2014 and required Plaintiff to attend at least twenty four hours of professional development courses.


I. Standard of Review

Summary judgment may be granted only if the court concludes that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322–23106 S.Ct. 254891 L.Ed.2d 265 (1986) ; Feingold v. New York, 366 F.3d 138, 148(2d Cir.2004). A dispute is genuine when there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248106 S.Ct. 250591 L.Ed.2d 202 (1986). Material facts are those which may affect the outcome of a case. Id.

The moving party initially bears the burden of informing the court of the absence of a genuine dispute of material fact by citing to particulars in the record. Fed.R.Civ.P. 56(c) ; Celotex, 477 U.S. at 322–25, 106 S.Ct. 2548 ; Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir.2002). The movant may satisfy its burden by “showing that the materials cited do not establish the absence or presence of a genuine dispute.” Fed.R.Civ.P. 56(c)(1)(B). If the non-moving party has the burden of proof on specific issues, the movant may also satisfy its own initial burden by demonstrating that the adverse party cannot produce admissible evidence to support an issue of fact. Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548 ; PepsiCo Inc. v. Coca–Cola Co., 315 F.3d 101, 105 (2d Cir.2002). In deciding the motion, the court views the record in the light most favorable to the non-moving party. O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 61 (2d Cir.2002).

If the moving party meets its initial burden, the burden then shifts to the opposing party to establish a genuine issue of fact. Beard v. Banks, 548 U.S. 521, 529126 S.Ct. 2572165 L.Ed.2d 697 (2006) ; Santos v. Murdock, 243 F.3d 681, 683 (2d Cir.2001). The opposing party may not avoid summary judgment by relying solely on conclusory allegations or denials that are unsupported by factual data. Burt Rigid Box, Inc. v. Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir.2002). Instead, the opposing party must set forth “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (internal quotation marks omitted).

II. Collateral Estoppel of Federal Claims

Prior to evaluating whether Defendants have met their burden in demonstrating that there is no genuine dispute as to a material fact, the Court must first address whether Plaintiff's claims are barred by the doctrine of collateral estoppel. Defendants argue that Plaintiff is collaterally estopped from bringing her § 1983, NYSHRL and NYCHRL age and disability discrimination and hostile work environment claims because she had a chance to fully and fairly litigate the issues during the second 3020–a hearing. Collateral estoppel applies when “(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3) there was full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits.” United States v. Hussein, 178 F.3d 125, 129 (2d Cir.1999) (quoting In re PCH Assocs., 949 F.2d 585, 593 (2d Cir.1991) ). In the case of unreviewed findings of state administrative tribunals, the Supreme Court has held that when a “state agency ‘acting in a judicial capacity resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,’ federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts.” University of Tennessee v. Elliott, 478 U.S. 788, 799106 S.Ct. 322092 L.Ed.2d 635 (1986) (internal alterations and citations omitted). However, in the same decision, the Supreme Court held that Title VII claims were not precluded because Title VII explicitly states that the Equal Employment Opportunity Commission (“EEOC”) should give “substantial weight” to state agency orders and findings. Id. at 795, 106 S.Ct. 3220. Thus, the Court reasoned, to give complete preclusive effect to state findings for Title VII cases would render this guidance from Congress superfluous. More recently, the Second Circuit has clarified that a 3020–a hearing is an administrative adjudication and as such, “we must give its findings preclusive effect.” Burkybile v. Bd. of Educ. of Hastings–On–Hudson Union Free Sch. Dist., 411 F.3d 306, 311 (2d Cir.2005).

In this case, the unreviewed findings of Plaintiff's 3020–a hearing should be given complete preclusive effect against her § 1983, NYSHRL and NYCHRL age and disability discrimination and hostile work environment claims. First, the issues raised in the 3020–a proceeding and this action are identical. Plaintiff complains in this action that she began receiving negative evaluations after her injury in 2008 and that the evaluations, the subsequent administrative charges and the suspension all resulted from discrimination based on her age and disability. Those same complaints of discrimination were raised as defenses in her 3020–a hearing. See, e.g., Def. Ex. C, at 36, 41, 54, 55. Second, the issues in the prior proceeding were actually litigated, and Plaintiff had a full and fair opportunity to litigate them. Plaintiff participated in a ten-day hearing in which she was represented by the same counsel as in this action. Def. Ex. C, at 2. She had the opportunity to question the same witnesses and review the same evidence at the 3020–a hearing that form the core of this litigation. See Pl. 56.1 ¶¶ 99–103; Def. Ex. C, at 2, 6, 7, 15 (indicating that Vittor, Dominguez and Gavin testified and that “[t]he parties were afforded a full and fair hearing, including the opportunity to present evidence, examine and cross-examine witnesses and make arguments in support of their respective positions”). Plaintiff, citing Locurto v. Giuliani, 447 F.3d 159 (2d Cir.2006), contends that she was per se denied a full and fair opportunity to litigate her age and disability claims because the 3020–a hearing took place prior to discovery in this case. However, Locurto does not stand for that proposition. Rather, the Locurto court held that the plaintiffs were denied a fair opportunity to litigate because the potentially biased arbitrators in the administrative hearing unfairly denied the plaintiffs adequate discovery. Id. at 171. Here, Plaintiff does not point to any deficiencies in the discovery in connection with the 3020–a hearing, and tellingly, Plaintiff does not provide any additional evidence in her moving papers that post-dates the 3020–a hearing or demonstrates that the discovery in the 3020–a hearing was somehow deficient.

Finally, Plaintiff's claims of age and disability discrimination were necessarily decided in the 3020–a hearing in order to support a final judgment because they were her central defenses. The hearing officer addressed Plaintiff's claims of discrimination and determined that they were without merit. Def. Ex. C, at 54–55; Pl. Ex. B, at 1064–65 (taking judicial notice of “a federal complaint in court relating to the same allegations” and stating that “we understand that this [federal complaint] is for a different case, but it's part of the defense—the underlying claim of discrimination and disparate treatment is part of this case, so to that extent, I will take judicial notice”). Other courts in this Circuit, pursuant to Burkybile, have given preclusive effect to 3020–a proceedings. See Smith v. New York City Dep't of Educ., 808 F.Supp.2d 569, 581–83 (S.D.N.Y.2011) (holding that plaintiff's § 1983, ADEA and ADA age and disability discrimination and hostile work environment claims were barred by the doctrine of collateral estoppel after two 3020–a hearings); see also Mohammed v. New York City Dep't of Educ., 932 F.Supp.2d 420, 428(E.D.N.Y.2013) (finding that reviewed findings of 3020–a hearing precluded § 1983, NYSHRL and NYCHRL claims); Page v. Liberty Cent. Sch. Dist., 679 F.Supp.2d 448, 453 (S.D.N.Y.2010) (holding that ADA claims were barred by collateral estoppel due to specific 3020–a findings that the plaintiff could perform essential functions of her job). Accordingly, Plaintiff's § 1983, NYSHRL and NYCHRL age and disability discrimination and hostile work environment claims are barred by collateral estoppel because they were fairly and fully litigated in her 3020–a hearing. However, Defendants concede that because the ADEA and ADA claims are similar to Title VII claims in that they must first be referred to the EEOC or its state equivalent and because Plaintiff's 3020–a hearing findings are unreviewed, Plaintiff's ADEA and ADA claims are not precluded in accordance with University of Tennessee v. Elliott. See Letter from Ricardo Tapia (August 18, 2014), ECF No. 61.

III. Age and Disability Discrimination Claims Under the ADEA and ADA

Although Plaintiff's ADEA and ADA claims are not precluded, Defendants have nonetheless proffered sufficient evidence to demonstrate that there is no genuine dispute as to a material fact regarding Plaintiff's ADEA and ADA discrimination and hostile work environment claims.

At the summary judgment phase, although the court is required to draw all inferences in the non-moving party's favor, the non-moving party must still point to evidence that demonstrates the existence of a genuine dispute. See D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998) (“The non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful.”). In Plaintiff's motion papers and in her 56.1 statement, she relies on either allegations found in the complaint or testimony from her deposition. In such situations, the Second Circuit has explained that “[w]hile it is undoubtedly the duty of district courts not to weigh the credibility of the parties at the summary judgment stage, in the rare circumstance where the plaintiff relies almost exclusively on [her] own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether the jury could reasonably find for the plaintiff and thus whether there are any ‘genuine’ issues of material fact, without making some assessment of the plaintiff's account.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005) (internal citations and quotation marks omitted); see also Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 105 (2d Cir.2011) (stating that the district court was entitled to assess the plaintiff's factual assertions when the plaintiff had only submitted an affidavit and her deposition testimony in opposition to the summary judgment motion whereas the defendant submitted contemporaneous letters and meeting notes that contradicted the plaintiff's assertions); accord Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 22 (2d Cir.2014) (stating that summary judgment in Jeffreys and Rojas was appropriate when the plaintiffs' cases relied entirely on their own testimony and the plaintiffs had made statements that were inconsistent and contradicted by evidence in the record).

Here, the Court finds that Plaintiff fails to meet her burden with respect to her ADEA and ADA causes of action. As in her 3020–a hearing, Plaintiff has not offered evidence demonstrating the existence of a genuine dispute over the facts but rather contests what conclusions should be drawn from the agreed-upon series of events at issue. The overwhelming evidence, however, would not allow a reasonable jury to conclude that she was discriminated against on the basis of her age or disability or endured a hostile work environment in violation of the ADEA or ADA.

A. Age Discrimination Under the ADEA

1. ADEA Discrimination Claims

ADEA discrimination claims are analyzed under the McDonnell Douglas burden-shifting framework. Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir.2010). In order to establish a prima facie case of age discrimination in violation of the ADEA, a plaintiff must show: (1) she was within the protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir.2009). If the plaintiff establishes a prima facie case, the burden then shifts to the defendant employer to “articulate some legitimate, nondiscriminatory reason” for the adverse employment action. Id. at 498–99 (internal quotation marks omitted). If the defendant can articulate such a reason, the burden then shifts back to the plaintiff to “demonstrate by competent evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Id. at 499 (internal quotation marks omitted). Unlike in Title VII cases, if a defendant provides a “legitimate, non-discriminatory reason” for the employment action, a plaintiff cannot merely show that age was a contributing factor to the adverse employment action to prevail; rather, she must show that age was the “but-for” cause. Gorzynski, 596 F.3d at 106 (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 178129 S.Ct. 2343174 L.Ed.2d 119 (2009) ). Importantly, “ ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ” Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253101 S.Ct. 108967 L.Ed.2d 207 (1981) ).

Plaintiff's ADEA claim fails at multiple points in the McDonnell Douglas inquiry. First, Plaintiff has not made out a prima facie case of age discrimination because she has failed to show that the circumstances surrounding her adverse employment actions give rise to an inference of discrimination. Plaintiff has not adduced evidence suggesting that her age and the adverse employment actions are connected, and the evidence that she has put forward does not reasonably lead to an inference of discrimination. In Plaintiff's deposition, she repeatedly stated that she did not believe many of the lesson observation ratings were affected by her age. See, e.g., Mazur Dep. 60:4–7 (“Q. Do you believe assistant principal Dominguez gave you this unsatisfactory rating because of your age? A. Not this particular rating. I think this was connected to my ankle and not my age.”); Mazur Dep. 79:1–5 (“Q. Do you think anything in this evaluation had anything to do with your age? A. I don't believe any of this had to do with my age, but I believe it's discriminatory. It's discriminatory in the observation itself.”). Although Plaintiff stated that school administrators had been asking older teachers about when they were going to retire, Plaintiff conceded that she was never asked about retirement. Mazur Dep. 59:5–6. Plaintiff also conceded that younger teachers had received unsatisfactory ratings, see Pl. 56.1 ¶¶ 83–85, and that older teachers had received satisfactory ratings, see Pl. 56.1 ¶¶ 86–89, further undermining an inference of discrimination. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 82 (2d Cir.2001) (“Nor has [the plaintiff] shown that similarly situated employees were treated differently or that she was replaced by a younger person, or adduced any other circumstantial evidence indicative of discriminatory intent.”). It is also undisputed that the alleged discriminator, Dominguez, was three years older than Plaintiff, a fact that undercuts a discriminatory inference. Pl. 56.1 ¶ 14; see Tucker v. New York City, 05 Civ. 2804, 2008 WL 4450271, at *5 (S.D.N.Y. Sept. 30, 2008) (“Moreover, any inference of race discrimination is further undermined by the fact that all three superintendents under whom [the plaintiff] worked as well as three of his four direct supervisors at the DOE were also African–American.”), aff'd, 376 Fed.Appx. 100 (2d Cir.2010).

The Second Circuit's decision in Leibowitz v. Cornell University highlights the weaknesses in Plaintiff's evidence of age discrimination. 584 F.3d 487. In Leibowitz,the plaintiff demonstrated that the defendant university had laid off five other employees who were women over the age of fifty, had reassigned teaching duties previously performed by the plaintiff to three other male instructors, and had not considered the plaintiff for vacant positions and yet tried to fill one of these positions with a younger male employee. Id. at 502. In this case, Plaintiff has provided no evidence aside from her own (often inconsistent) testimony that age was a factor in her reviews or suspension.

Any inference of discrimination is further undermined by the findings of the two 3020–a hearings. As explained by the Second Circuit in Collins v. New York City Transit Authority,

a decision by an independent tribunal that is not itself subject to a claim of bias will attenuate a plaintiff's proof of the requisite causal link. Where, as here, that decision follows an evidentiary hearing and is based on substantial evidence, the Title VII plaintiff, to survive a motion for summary judgment, must present strong evidence that the decision was wrong as a matter of fact—e.g. new evidence not before the tribunal—or that the impartiality of the proceeding was somehow compromised.

305 F.3d 113, 119 (2d Cir.2002). Although Plaintiff is correct that her ADEA and ADA claims are not collaterally estopped by the 3020–a hearing, the fact that a neutral hearing officer rendered a decision based on substantial evidence that found just cause to discipline Plaintiff and found her defenses of age and disability discrimination to be without merit is nonetheless “highly probative of the absence of discriminatory intent.” Id. Plaintiff has not shown that the hearing officers were biased or that certain evidence was unavailable or overlooked, thus undermining the inference that her suspension was connected to her protected status. See Hodge v. Columbia Univ. in City of New York, 05 Civ. 7622, 2008 WL 2686684, at *17–18(S.D.N.Y. July 2, 2008) (finding that the plaintiff did not satisfy the elements of an ADEA or Title VII claim after extensive hearings and an arbitrator's opinion “concluded that [the plaintiff's supervisor] did not comment about [the plaintiff's] age, that there were legitimate reasons for the two brief suspensions, and that [the plaintiff] was not subjected to ‘harassment’ even in the plain ordinary meaning of that word.”).

In addition, Plaintiff cannot show that her age was the “but-for” cause of her adverse employment actions. Defendants have articulated several legitimate, non-discriminatory reasons for the adverse actions taken against Plaintiff by providing a series of negative classroom observation reports indicating that Plaintiff failed to rectify her unsatisfactory performance throughout her employment at Grover Cleveland and evidence of Plaintiff's excessive tardiness and absences. The record indicates that Plaintiff received specific recommendations for improvement as early as 2003 that remained unaddressed years later. Compare Pl. Ex. E (December 8, 2003 classroom observation recommending that Plaintiff prepare more detailed lesson plans and asking Plaintiff to share the plans with Zambrano–Burakov), withDef. Ex. X (September 30, 2010 classroom observation recommending that Plaintiff prepare more detailed lesson plans and asking Plaintiff to share the plans with Dominguez). In addition, Plaintiff has offered no explanation for her tardiness. Plaintiff does not contest the amount of absences but rather contends that the absences were excusable and not excessive. Mazur Dep. 92:10–15. Given the detailed history of Plaintiff's transgressions and Plaintiff's lack of evidence aside from conclusory and contradictory statements, no reasonable jury could conclude that Plaintiff's age was the “but-for” cause of her reviews, charges and suspension. Cf. Miller v. Nat'l Ass'n of Sec. Dealers, Inc., 703 F.Supp.2d 230, 248 (E.D.N.Y.2010) (“When an employer accused of discrimination provides convincing evidence explaining its conduct, and the plaintiff's case rests on conclusory allegations such as these, it is proper for a court to conclude that there is no genuine issue of material fact....”). Plaintiff's ADEA discrimination claims, therefore, must be dismissed.

2. ADEA Hostile Work Environment Claims

“An actionable discrimination claim based on hostile work environment under the ADEA is one for which the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of the victim's employment.” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 240 (2d Cir.2007) (internal alterations and quotation marks omitted) (citing Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir.1999) ). A determination of hostility involves an objective component, which asks whether a reasonable person would find the environment to be hostile, and a subjective component, which asks whether the plaintiff perceived the environment to be hostile. Id. A plaintiff does not need to list specific acts but must prove that the alleged incidents were “sufficiently continuous and concerted to be considered pervasive” and resulted from her age. Id. at 240–41.

As with her other age-based discrimination claims, Plaintiff has proffered insufficient evidence to make out a hostile work environment claim. See Sotomayor v. City of New York, 862 F.Supp.2d 226, 261 (E.D.N.Y.2012) (dismissing a plaintiff's age-based hostile work environment claims on the same grounds as her age discrimination claims), aff'd, 713 F.3d 163 (2d Cir.2013). Objectively, Plaintiff has not demonstrated that she endured a workplace “permeated with discriminatory intimidation, ridicule, and insult” based on her age that altered her working conditions. In her deposition, Plaintiff acknowledged that she had never been personally asked about retirement. See Mazur Dep. 59:5–6. Moreover, comments or questions about retirement, without more, do not create a hostile work environment. See Hamilton v. Mount Sinai Hosp., 528 F.Supp.2d 431, 447(S.D.N.Y.2007) ( “[D]iscussion of retirement is common in offices, even between supervisors and employees, and is typically unrelated to age discrimination.”), aff'd,331 Fed.Appx. 874 (2d Cir.2009). Plaintiff also fails to demonstrate how her negative evaluations or reviews were connected to her age. To the contrary, Plaintiff's own testimony shows that she did not feel that many of the negative reviews were connected to her age. See Mazur Dep. 60:4–7, 79:1–5, 81:10–12. Similarly, although Plaintiff states in her 56.1 statement that she was forced to observe younger teachers as part of a “targeted campaign of harassment,” Plaintiff acknowledged in her deposition that the teachers she observed were “very clear and concise,” “well prepared,” and had a command of technology that Plaintiff admired. Compare Pl. 56.1 ¶¶ 47–48, with Mazur Dep. 64:2–3, 66:3–8. Far from suggesting that the recommended observations were discriminatory, Plaintiff's testimony indicates that the observations of other teachers were informative. Plaintiff takes issue with the fact that some of the younger teachers committed similar infractions, but nowhere in the record does Plaintiff show that these teachers did not receive similar recommendations or that they faced no penalties for their mistakes. With such contradictory and inconsistent evidence, a reasonable jury could not conclude that Plaintiff had been subjected to a hostile work environment based on her age.

B. Disability Discrimination Under the ADA

1. ADA Discrimination Claims

Claims of disability discrimination brought under the ADA are evaluated under the Title VII McDonnell Douglas burden-shifting framework. McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir.2009). In order to establish a prima facie case of disability discrimination, a plaintiff must show: (1) that her employer is subject to the ADA; (2) that she has a disability—actual or perceived by her employer—as defined by the ADA; (3) that she is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (4) she suffered an adverse employment action as a result of her disability. Brady v. Wal–Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir.2008).

Plaintiff fails to establish a prima facie case at the second, third and fourth prongs of the analysis and fails to rebut Defendants' legitimate non-discriminatory reasons for the adverse actions. First, Plaintiff has not shown that she is disabled as defined by the ADA. Plaintiff did not attend class for six weeks in the spring of 2008 after she sprained her ankle. See Pl. 56.1 ¶¶ 20–21. During that time, Plaintiff was unable to drive. Mazur Dep. 33:15–19. She was in a wheelchair for the first week and a half until she was able to walk, although slowly and with a crutch. Mazur Dep. 33:20–24. After six weeks, Plaintiff was able to return to work and used a cane to walk for some time. Mazur Dep. 34:1–13. Plaintiff stated that the ankle injury was not permanent and, aside from lingering weakness, has not caused any permanent changes in her major life activities. Mazur Dep. 34:14–24. Temporary injuries that do not substantially affect one's ability to engage in major life activities do not constitute a “disability” within the meaning of the ADA. See Price v. City of New York, 09 Civ. 4183, 2013 WL 1182073, at *7 (E.D.N.Y. Mar. 21, 2013) (“Courts in this Circuit repeatedly have held that the inability to, e.g., walk long distances or climb stairs does not in itself substantially limit an individual's ability to perform a major life activity.”), aff'd, 558 Fed.Appx. 119 (2d Cir.2014) ; Young v. Benjamin Dev. Co., Inc.,03 Civ. 10209, 2009 WL 498933, at *8 (S.D.N.Y. Feb. 17, 2009) (“In fact, the record suggests that, before, during, and after, the September 19 fall, Plaintiff was assigned the same types of tasks that he had been given since he started working for Allerton in 1990. Accordingly, Plaintiff has not produced sufficient evidence that Defendants regarded him as ‘disabled’ under the ADA.”), aff'd, 395 Fed.Appx. 721 (2d Cir.2010) ; Le Prevost v. New York, 03 Civ. 2544, 2006 WL 2819582, at *7 (S.D.N.Y. Sept. 29, 2006) (“Based on the record, it is clear to the Court that Plaintiff's injury, while it affected the major life activity of walking, did not substantially affect her ability to walk. The record shows that Plaintiff's impairment was not particularly severe, was not expected to, and indeed, did not, last very long, and appears to have had no permanent impact on Plaintiff's ability to walk.”). Because Plaintiff's injury was only temporary and did not substantially affect her ability to walk, Plaintiff has not shown that she was disabled.

Second, Plaintiff has not shown that she was otherwise qualified to perform the essential functions of the job with reasonable accommodation. To the contrary, the record reflects that Plaintiff did not seek an accommodation. Plaintiff testified that although she assisted Dominguez in a limited capacity while out, the approach to sick leave was “[b]asically it's I'm home sick and that's the end of it and you'll see me when I get back.” Mazur Dep. 41:5–19. There is no evidence that Plaintiff either asked for an accommodation or that she was denied an accommodation. Cf. McBride, 583 F.3d at 97 (affirming summary judgment against an employee who “failed to present any evidence of an accommodation that would have allowed her to perform the essential functions of her pre-disability position”).

Even if Plaintiff's ankle injury did constitute a disability, Plaintiff has not shown that an inference of discrimination can be drawn from her injury and her reviews, charges and suspension. As discussed above in the context of the ADEA claims, the findings of the 3020–a hearings undermine an inference of discriminatory intent. At her first 3020–a hearing following her absences during the 2008–2010 school years, Plaintiff was admonished for her failure to provide sufficient medical documentation for her injuries and appointments. See Def. Ex. W. Plaintiff has not provided “strong evidence” showing that those 3020–a findings were biased or that did not account for previously unavailable evidence. Collins, 305 F.3d at 119. Even in this litigation, Plaintiff has not demonstrated that Defendants or the hearing officer unfairly disregarded legitimate medical needs.

Finally, Plaintiff is unable to rebut Defendant's legitimate, non-discriminatory reasons for the adverse actions. Plaintiff repeatedly failed to implement the recommendations given to her and failed to properly account for her absences. Plaintiff's ankle injury occurred in February 2008 and had no permanent effects on Plaintiff's ability to walk. Yet, Plaintiff's pattern of tardiness and absenteeism continued well into 2012 for reasons unrelated to her ankle. See, e.g., Mazur Dep. 93:14–94:2; Def. Ex, MM, Accordingly, Plaintiff cannot show that the reasons for her disciplinary action are pretext and, therefore, her ADA discrimination claims are dismissed.

2. ADA Hostile Work Environment Claims

Although the Second Circuit has not addressed whether the ADA permits hostile work environment claims, courts have nonetheless evaluated ADA hostile work environment claims under the same standard as Title VII claims. See Farina v. Branford Bd. of Educ., 458 Fed.Appx. 13, 17 (2d Cir.2011) (summary order); De La Rosa v. City of New York Police Dep't, 09 Civ. 5290, 2010 WL 4177626, at *7 (S.D.N.Y. Oct. 22, 2010), aff'd, 461 Fed.Appx. 73 (2d Cir.2012). “The standard, however, is a demanding one, and a plaintiff must establish that the alleged harassment was offensive, pervasive, and continuous enough to create an abusive working environment.” Monterroso v. Sullivan & Cromwell, LLP, 591 F.Supp.2d 567, 584–85(S.D.N.Y.2008) (internal quotation marks omitted).

As with her ADEA hostile work environment claims, Plaintiff does not provide any evidence showing that she was harassed based on her disability in a way that was severe or pervasive enough to alter her working conditions. During her six-week ankle injury absence, Plaintiff and Dominguez only exchanged “[a] few telephone calls and a few emails” in which Dominguez sounded irritated and angry but did not otherwise make any discriminatory remarks. Mazur Dep. 35:10–23, 36:10–15. These isolated—even if heated—exchanges between Plaintiff and Dominguez during her absence are insufficient to support a hostile work environment claim. Wesley–Dickson v. Warwick Valley Cent. Sch. Dist., 973 F.Supp.2d 386, 407 (S.D.N.Y.2013) (holding that a supervisor's two comments asking about the plaintiff's chemotherapy and noting that another colleague on chemotherapy had memory troubles did not create a hostile work environment in violation of the ADA). Upon Plaintiff's return from leave, Plaintiff stated that her relationship with Dominguez was “cordial, but it wasn't what it had been before.” Mazur Dep. 51:17–21. Plaintiff does not allege that Dominguez made any additional remarks about Plaintiff's ankle injury after her return. The shift in the tenor of their relationship is also insufficiently hostile to sustain a claim. Moreover, Plaintiff's contention that she was unfairly disciplined for her absences after her ankle injury is without merit, as Plaintiff concedes that she was absent for additional, non-ankle related reasons, and her ankle injury cannot explain the absences in the later school years. SeeMazur Dep. 93:5–94:2 (“Honestly I don't remember the number, but 33 were for the ankle and I know 14 were for other things like fever and my tonsils.”); Def. Ex. VIM (letter indicating that Plaintiff was absent at least 20 days in the 2011–2012 school year); cf. Alfano v. Costello, 294 F.3d 365, 377 (2d Cir.2002) (“Everyone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination.”). Plaintiff's ADA hostile work environment claims are, therefore, dismissed.

IV. Retaliation Claims

Defendants argue that Plaintiff's retaliation claims are similarly precluded by the 3020–a hearings because the hearing officer found no improper motive in Defendants' reviews or supervision of Plaintiff. However, without a clear discussion and acknowledgement from the hearing officer that the issue was considered and adjudicated in the 3020–a hearing, the Court declines to find that the retaliation claims are precluded. Nonetheless, Defendants have shown that there is no genuine dispute as to a material fact regarding all of Plaintiff's retaliation claims.

A. Retaliation in Violation of the First Amendment and Equal Protection Clause

To state a prima facie case of relation, the plaintiff must show that (1) she engaged in a protected activity, (2) the employer knew about this activity, (3) the plaintiff suffered a “materially adverse action,” and (4) there is a causal connection between the protected activity and the adverse action. Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir.2012). Regarding the causal connection, the Supreme Court has recently held that it is not enough for a defendant's adverse employment action to be based in part on the plaintiff engaging in a protected activity; instead, “retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.” Univ. of Texas S.W. Med. Ctr. v. Nassar, –––U.S. ––––, 133 S.Ct. 2517, 2528186 L.Ed.2d 503 (2013). In the case of First Amendment retaliation, a plaintiff must show that: “(1) [her] speech addressed a matter of public concern, (2) [she] suffered an adverse employment action, and (3) a causal connection existed between the speech and the adverse employment action.” Mandell v. Cnty. of Suffolk, 316 F.3d 368, 382 (2d Cir.2003).

First, with respect to Plaintiff's First Amendment retaliation claims, Defendants argue that Plaintiff cannot show that her complaints addressed a public concern. “Whether an employee's speech addresses a matter of public concern is a question of law for the court to decide, taking into account the content, form, and context of a given statement as revealed by the whole record.” Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir.2008). If a lawsuit “concerns essentially personal grievances and the relief [a plaintiff] seeks is for [herself] alone, [then] the lawsuit is not speech on a matter of public concern and cannot sustain a First Amendment retaliation claim.” Id. at 190 ; see also Adams v. New York State Educ. Dep't, 08 Civ. 5996, 2010 WL 624020, at *28 (S.D.N.Y. Feb. 23, 2010) (collecting cases), report and recommendation adopted in part, 705 F.Supp.2d 298 (S.D.N.Y.2010). After evaluating the record, the Court finds that Plaintiff's complaints against Defendants involved personal grievances about her workload, reviews, discipline and suspension, and they were made in her capacity as a teacher, not a citizen. None of her complaints addressed matters beyond the scope of her own employment. Because a complaint concerning personal grievances about one's employment does not constitute speech of public concern, it cannot sustain a First Amendment retaliation claim. Second, with respect to Plaintiff's claim of retaliation in violation of the Equal Protection Clause, courts have differed as to whether such claims are cognizable. See Giscombe v. New York City Dep't of Educ., 12 Civ. 464, 39 F.Supp.3d 396, 405–062014 WL 3974582, at *8 (S.D.N.Y. Aug. 12, 2014) (noting the discrepancy in Second Circuit case law regarding the viability of Equal Protection retaliation claims). Assuming the availability of this claim, the Court nonetheless finds that Plaintiff has failed to make out a prima facie case. Plaintiff has not shown that she was treated differently from any other employees as a result of these complaints. Plaintiff filed her civil lawsuit in January 2012 and filed her discrimination complaint with the New York State Division of Human Rights on March 15, 2012. However, the alleged adverse actions against Plaintiff began well before the filing of these complaints, and Plaintiff has not pointed to any other disparate treatment or adverse actions that can be reasonably connected to her filings. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.2001) (“Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.”)

B. Retaliation in Violation of the ADEA and ADA

Claims for retaliation under the ADEA and ADA are evaluated under the Title VII McDonnell Douglas burden-shifting framework. See Widomski v. State Univ. of New York (SUNY) at Orange, 748 F.3d 471, 476 (2d Cir.2014) (ADA claims); Gorzynski, 596 F.3d at 110 (2d Cir.2010) (ADEA claims). Although Plaintiff meets the first three requirements of her prima facie case, she fails to show that there is a causal connection between her complaints of age and disability discrimination and her suspension. Turning again to the Second Circuit's guidance in Collins v. New York City Transit Authority, an independent tribunal's findings, although not per sepreclusive, can negate the causal link between Plaintiff's protected activity and the resulting adverse action. 305 F.3d at 119. Plaintiff's suspension occurred after she participated in two 3020–a hearings presided over by neutral hearing officers who reviewed the evidence and found just cause to discipline her. In order to show a causal connection and survive summary judgment, Plaintiff must present strong evidence that the decision was incorrect because either new evidence was discovered or because the hearing officers were unfairly biased. Id. Plaintiff has not done so. Aside from general, conclusory claims that the hearing officers disregarded her allegations and credited Defendants' testimony, Plaintiff has not shown that either of the 3020–a hearings was deficient. Because Plaintiff cannot show that the 3020–a hearing decision was incorrect as a matter of fact, her claim that her charges and suspension were based on her discrimination complaints is without merit.See Mohammed, 932 F.Supp.2d at 430 (granting summary judgment on retaliation claims when the plaintiff could not show that 3020–a hearing was biased or flawed); Roemer v. Bd. of Educ. of City Sch., Dist. of City of New York, 290 F.Supp.2d 329, 332–34 (E.D.N.Y.2003) (holding that retaliation claim was barred based in part on 3020–a hearing findings even though retaliation was not mentioned by the arbitrator), aff'd, 150 Fed.Appx. 38 (2d Cir.2005)

C. Retaliation in Violation of the NYSHRL and NYCHRL

Plaintiff also alleges retaliation in violation of the NYSHRL and the NYCHRL. “Hostile work environment and retaliation claims under the NYSHRL are generally governed by the same standards as federal claims under Title VII.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir.2006). Accordingly, for the same reasons that Plaintiff's federal retaliation claims are dismissed, Plaintiff's NYSHRL retaliation claims are also dismissed.

Regarding the NYCHRL claims, the Second Circuit requires district courts to separately analyze them and construe their provisions more liberally than the federal or state law-based claims. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,715 F.3d 102, 109 (2d Cir.2013). However, “the NYCHRL is not a general civility code, and a defendant is not liable if the plaintiff fails to prove the conduct is caused at least in part by discriminatory or retaliatory motives or if the defendant proves the conduct was nothing more than ‘petty slights or trivial inconveniences.’ ” Id. at 113 (internal citation omitted). Even under the more liberal standard of the NYCHRL, Plaintiff has not shown that she was retaliated against for her discrimination complaints. Defendants have provided extensive documentary evidence showing that the conduct that gave rise to the administrative charges against Plaintiff occurred well before she filed her complaints in 2012. A documented pattern of poor performance that precedes the filing of a discrimination complaint can sever the causal link between the protected activity and the alleged retaliatory act. See Farrugia v. North Shore Univ. Hosp., 13 Misc.3d 740820 N.Y.S.2d 718, 728 (N.Y.Sup.Ct.2006) (holding that the plaintiff was not terminated as a result of his harassment complaints based in part on documents indicating that the plaintiff's performance was in need of improvement and the plaintiff had received warnings prior to the filing of his complaints). Moreover, Plaintiff does not refute that she was absent and that she declined to make the necessary changes to her teaching methods, thus failing to show that the reasons for her charges and suspension were a pretext for discrimination. See Mazur Dep. 46:21–24, 92:10–18; see also Chin v. New York City Hous. Auth., 106 A.D.3d 443, 444965 N.Y.S.2d 42 (1st Dep't 2013) (holding that the plaintiff failed to show that the reasons provided for her transfer to a field office were pretextual). Accordingly, Plaintiff's NYCHRL retaliation claims are dismissed. See, e.g., Jeffrey v. Montefiore Med. Ctr., 11 Civ. 6400, 2013 WL 5434635, at *24 (S.D.N.Y. Sept. 27, 2013) (broadly construing provisions of NYCHRL and reaching the same conclusions as with the federal and NYSHRL claims).

V. Claims Against the DOE and Dominguez

Plaintiff alleges that the DOE is liable pursuant to Monell v. Department of Social Services of City of New York, 436 U.S. 658, 69498 S.Ct. 201856 L.Ed.2d 611 (1978). However, “Monell does not provide a separate cause of action ... it extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006). “Establishing the liability of the municipality requires a showing that the plaintiff suffered a tort in violation of federal law committed by the municipal actors and, in addition, that their commission of the tort resulted from a custom or policy of the municipality.” Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir.2013). Because Plaintiff fails to establish that an underlying constitutional violation occurred, the DOE cannot be held liable under Monell. See Faber v. Monticello Cent. Sch. Dist., 10 Civ. 01812, 2013 WL 2450057, at *6 (S.D.N.Y. June 6, 2013) (“[B]ecause the Court finds as a matter of law that Plaintiff's Fourth Amendment rights were not violated, no Monell claim can lie against the School District or the Board pursuant to § 1983.”).


For the foregoing reasons, Defendants' motion for summary judgment is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 40 and to close the case.