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
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Editor, Advocatz.com
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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.
MEMORANDUM AND ORDER
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.
BACKGROUND
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.
DISCUSSION
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,
322–23, 106 S.Ct. 2548, 91 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, 248, 106 S.Ct. 2505, 91 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, 529, 126
S.Ct. 2572, 165
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, 799, 106 S.Ct.
3220, 92 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,
178, 129
S.Ct. 2343, 174 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, 253, 101
S.Ct. 1089, 67
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, 2528, 186
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, 405–06, 2014 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 740, 820
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,
444, 965
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, 694, 98
S.Ct. 2018, 56
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.”).
CONCLUSION
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.
SO ORDERED.