FEUERSTEIN, District Judge.
On September 8, 2011, plaintiff Betty F. Brown Greene ("plaintiff") commenced this action against the Brentwood Union Free School District (the "District"), the Board of Education of the District (the "Board"), Board members George Talley, Lorraine Pace, Stephen Coleman, and
Rule 72 of the Federal Rules of Civil Procedure permits a magistrate judge to conduct proceedings of dispositive pretrial matters without the consent of the parties. Fed. R. Civ. P. 72(b). Any portion of a report and recommendation on dispositive matters to which a timely objection has been made is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). However, "when a party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the report strictly for clear error." Frankel v. City of N.Y., Nos. 06 Civ. 5450, 07 Civ. 3436, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009). The Court is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed. See Thomas v. Am, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). To accept the report and recommendation of a magistrate judge on a dispositive matter to which no timely objection has been made, the district judge need only be satisfied that there is no clear error on the face of the record. See Fed. R. Civ. P. 72(b); Johnson v. Goord, 487 F.Supp.2d 377, 379 (S.D.N.Y.2007), aff'd, 305 Fed.Appx. 815 (2d Cir.2009); Baptichon v. Nevada State Bank, 304 F.Supp.2d 451, 453 (E.D.N.Y.2004), aff'd, 125 Fed. Appx. 374 (2d Cir.2005). Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Plaintiff asserts that Magistrate Judge Lindsay applied the incorrect standard of review to the motion for summary judgment by "tak[ing] as undisputed most of the Defendants' Statements, notwithstanding the fact that plaintiff denied most of said Statement and submitted a Counter Statement of Facts." Objections at 7. Plaintiff therefore requests "that this Court conduct a de novo review of the entire record to ascertain issues of disputed fact necessary to overcome summary judgment, especially where the defendants' state of mind and intent are at issue." Id. at 5.
Magistrate Judge Lindsay determined that plaintiff has failed to present direct evidence of Talley's discriminatory animus and that plaintiffs claims are therefore subject to the McDonnell Douglas burden-shifting test. Report at 15; see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Trans World Airlines, Inc. v. Thurston, 469 U.S. Ill, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985) ("[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination."). Plaintiff argues that she has offered direct evidence of Talley's discriminatory animus, including: (1) O'Brien's deposition testimony that "he has no reason to disbelieve" Frank Scimeca's statement in an affidavit that Talley had made racially discriminatory comments in the past; and (2) Jones' deposition testimony that she believed Talley had made racially discriminatory statements about her. Objections at 7-8.
"[T]he evidence proffered by the party opposing summary judgment must be of a type that would be admissible at trial." Cerqua v. Stryker Corp., No. 11 Civ. 9208, 2013 WL 1752284, at *4 (S.D.N.Y. Apr. 23, 2013), and therefore "hearsay testimony that would not be admissible if testified to at trial may not properly be set forth in the Rule 56(e) affidavit," Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir.1986) (internal quotation marks and alterations omitted); see also Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir.1985) ("[The non-moving party] cannot rely on inadmissible hearsay in opposing a motion for summary judgment, absent a showing that admissible evidence will be available at trial.") (citations omitted). Magistrate Judge Lindsay correctly found that "[t]he testimony of O'Brien and Jones commenting on the affidavit of a co-worker in which he reiterates derogatory statements allegedly made by Talley is inadmissible hearsay," and therefore does not constitute direct evidence of Talley's discriminatory animus. Report at 18. Although plaintiff argues that "the reference to the affidavit of Scimeca should have been considered as further evidence of Talley's propensity for making discriminatory remarks about African Americans and women since it is a sworn affidavit," Objections at 8, she only offered as evidence the testimony of O'Brien and Jones about Scimeca's affidavit, not the affidavit itself. The Court also agrees with Magistrate
Plaintiff also relies upon O'Brien's testimony that he heard Talley make a comment about Christopher Dowdy's race when he applied for a position as an Assistant Principal and argues that Magistrate Judge Lindsay erred in deeming the comment about Dowdy a "`stray remark' not aimed at [plaintiff]" and thus not probative of Talley's discriminatory intent in this case. Report at 17 n. 19. Plaintiff notes that the Second Circuit has held that "stray remarks" should be considered in the context of all the evidence to determine whether they may support a reasonable inference of discriminatory animus and not "first ... categorized either as stray or not stray and then disregarded if they fall into the stray category." Tomassi, 478 F.3d at 116.
Magistrate Judge Lindsay's finding that Talley's comment about Dowdy did not support a reasonable inference of discriminatory animus in this case was not based upon a rigid characterization of the comment as "stray" or "not stray," but rather was consistent with the Second Circuit's guidance that "the more remote and oblique the remarks are in relation to the employer's adverse action, the less they prove that the action was motivated by discrimination." Id. at 115; see also Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir.2010) ("In determining whether a remark is probative, [district courts in the Second Circuit] have considered four factors: (1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process)."). The Court agrees with Magistrate Judge Lindsay that Talley's comment about Dowdy was too remote and oblique in relation to his actions in this case to constitute direct evidence of his discriminatory animus. See, e.g., Adam v. Glen Cove Sch., No. 06-CV-1200, 2008 WL 508689, at *8 (E.D.N.Y. Feb. 21, 2008) ("[T]he alleged isolated remarks by Jimmy and Familetti when considered in the context of all the evidence, are too `remote and oblique ... in relation to the employer's adverse action' to permit a reasonable jury to find for plaintiff."); Brollosy v. Margolin, Winer & Evens, LLP, No. 04-CV-0873, 2006 WL 721433, at *10 (E.D.N.Y. Mar. 20, 2006) ("In order for the remarks to be deemed significant, the plaintiff must show their nexus to the adverse employment decision.").
Plaintiff also asserts that she "established that defendant Talley engaged in racial slurs through the direct testimony of O'Brien, who [sic] when questioned about statements that Talley made to Frank Sciemeca [sic], as set forth in a sworn affidavit, stated that he had no reason to disbelieve Mr. Sciemeca's [sic] sworn statement that Talley referred to defendant Jones as `black bitch.'" Objections at 8. O'Brien's unsupported belief about whether the statements were made does not constitute admissible evidence.
Lastly, plaintiff argues that she "provided evidenced in the form of a chart prepared by defense counsel listing other
For the foregoing reasons, Magistrate Judge Lindsay did not err in concluding that plaintiff has failed to show direct evidence of discriminatory animus, and plaintiff's objection is overruled.
Plaintiff argues that Magistrate Judge Lindsay "erred in declining to find that plaintiff had experienced the adverse employment action of constructive discharge" by "treat[ing] as one action plaintiffs forced resignation/retirement and the separate action in denying her tenure." Objections at 9. According to plaintiff, "the testimony of Jones, as well as the documentary evidence of tenure reports to the Board establish that the District was considering plaintiff's tenure well before the Nunez incident" in November 2008. Objections at 9-10.
The portions of the record cited by plaintiff do not support this assertion. See Report at 23 ("There is not a shred of evidence suggesting that before the Nunez incident, the Board had already begun to consider Greene's eligibility for tenure or that their desire to deny her of that privilege somehow influenced Jones decision."). In fact, the evidence shows that plaintiff was not eligible to be considered for tenure until August 2009. See [Docket Entry No. 57-4]; Deposition of John Agostini [Docket Entry Nos. 53-6, 53-7] at 121:12-17 ("[T]hese are the people notified in November that the following September these people would be tenure eligible. It's just an alert that it would be coming up for a vote at some point during the year.").
Plaintiff further argues that she "clearly submitted that the verbal reprimands by Lange and Jones, the written reprimand by Jones, the persistent threats of termination with the representation that it would be carried out; the persistent ultimatums by Jones that either plaintiff retire or she will be terminated; and the forced termination/resignation all constituted... the adverse employment action of constructive discharge." Objections at 10 (citing Complaint ¶¶ 81-93). Magistrate Judge Lindsay addressed this argument, finding that "the record indicates that these actions did not ... create the type of atmosphere that would have compelled a reasonable person in Green's shoes to resign." Report at 24; see Stetson v. NYNEX Serv. Co., 995 F.2d 355, 361 (2d Cir.1993) ("[A] claim of constructive discharge must be dismissed as a matter of law unless the evidence is sufficient to permit a rational trier of fact to infer that the employer deliberately created working conditions that were so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.") (internal quotation marks omitted). According to plaintiff, this finding is "contrary to the body of decisional law that recognizes that threats of termination can be of the utmost importance when alleged in the context of a constructive discharge claim," and "a `triable issue of fact as to constructive discharge may be demonstrated by proof that an employee was presented with the decision to resign or be fired.'" Objections at 11 (quoting Rupert v. City of Rochester Dep't of Envtl. Servs., 701 F.Supp.2d 430, 440 (W.D.N.Y.2010)
Plaintiff's argument fails because the evidence does not show that she was given the choice to resign or be fired; plaintiff "could have waited for Jones['] explanation [of why she was recommending plaintiff's termination] and submitted a response directly to the Board before submitting her resignation" instead of "cho[osing] to respond to the allegations fifteen days after she had already submitted her notice of resignation." Report at 24. The Court finds no error in Magistrate Judge Lindsay's determination that "[t]he only action taken by the defendants was Jones' recommendation to terminate Greene's employment" and that, because "Jones ... was not the final decision maker," plaintiff had an opportunity to respond but chose to resign instead. Report at 23; See Weisbecker v. Sayville Union Free Sch. Dist., 890 F.Supp.2d 215, 234 (E.D.N.Y.2012) ("With respect to Jones' recommendation to the Board that plaintiff be terminated as a probationary teacher, based on the evidence in the record in this case, this was not an adverse employment action as a matter of law[,] ... [because] (1) the recommendation was made by Jones, who was not the final decision maker with respect to termination, (2) plaintiff was notified of the recommendation of termination well in advance of the Board's meeting, and (3) plaintiff was afforded extensive process ... to request Jones' reasons for the recommendation and provide a responsive statement to the Board."); see also Bailey v. N.Y.C. Bd. of Educ., 536 F.Supp.2d 259, 266 (E.D.N.Y.2007) ("[W]hen an employee resigns rather than respond to disciplinary charges, the resignation cannot later be construed as a constructive discharge."); Silverman v. City of N.Y., 216 F.Supp.2d 108, 116 (E.D.N.Y. 2002) ("[T]he fact that [the plaintiff] could have sought a hearing before being terminated eviscerates his claim that threats of termination created an `intolerable' situation which left him but one choice: resignation."); Stembridge v. City of N.Y., 88 F.Supp.2d 276, 286 (S.D.N.Y.2000) ("[P]laintiff had the opportunity to present his side of the story in the scheduled disciplinary hearing. It is impossible to know whether the hearing could have actually remedied the situation or addressed the... misconduct because plaintiff chose not to participate in the process.").
With respect to the failure to promote claim, Magistrate Judge Lindsay found that plaintiff failed to establish a prima facie case of discrimination because the evidence showed that the position began after the effective date of plaintiff's retirement and that she was therefore not qualified for the position. Report at 24-25. Plaintiff repeats the argument made below that her retirement was not a bar to the position because she was not retired at the time she submitted her application, and that defendants could have rescinded their decision to accept her retirement. Objections at 13. Magistrate Judge Lindsay correctly disposed of these arguments, finding that plaintiff's retired status as of the start of the position was dispositive and that her status as of the date she submitted her application was irrelevant. Report at 25-26. The remainder of plaintiffs objections to the recommended dismissal of this claim only repeat the original arguments made below and are without merit. See Frankel, 2009 WL 465645, at *2 ("[W]hen a party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the report strictly for clear error."). Therefore, the objections are overruled.
Plaintiff objects to Magistrate Judge Lindsay's finding that, even if plaintiff established a prima facie case of discrimination, her claims would nonetheless fail because "defendants have articulated [ ] non-discriminatory reasons for their actions and there is no evidence of a pretext." Report at 26. Plaintiffs objection repeats the same arguments she made in opposition to the motion for summary judgment, i.e., that plaintiff should not have been found at fault in the Nunez incident and that there was a difference of opinion among her supervisors and Board members regarding whether dismissal was a proper sanction for her conduct. Objections at 13-15.
The Court has reviewed Magistrate Judge Lindsay's findings and agrees that, viewing the record as a whole and construing all ambiguities in plaintiff's favor, no reasonable juror could conclude that defendants' stated reason for plaintiff's treatment was pretextual and that discriminatory animus was a motivating factor. See Bickerstaff v. Vassar College, 196 F.3d 435, 446 (2d Cir.1999) ("The defendant's burden of production [to articulate a legitimate, nondiscriminatory reason for its actions] is not a demanding one; she need only offer such an explanation for the employment decision.... [T]he ultimate burden of persuasion remains always with the plaintiff."). Defendants' investigation concluded that plaintiffs conduct in the Nunez incident was irresponsible and dangerous, and plaintiff has failed to offer evidence to support the conclusion that the conclusion was pretextual. Dister v. Continental Grp., Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) ("Evidence that an employer made a poor business judgment in discharging an employee generally is insufficient to establish a genuine issue of fact as to the credibility of the employer's reasons."). Therefore, plaintiff's objection is overruled.
Plaintiff objects to Magistrate Judge Lindsay's finding that plaintiff "has not
With respect to plaintiff's claim that she was subjected to disparate treatment in being denied the promotion, Magistrate Judge Lindsay found that: (1) plaintiff failed to present evidence that the employees interviewed for the position had, like plaintiff, "engaged in conduct that should have [ajffected their employment prospects"; (2) Escobores provided sworn testimony that he withdrew his application for the position due to personal commitments, not due to pressure from Talley to make way for a white candidate; (3) plaintiffs own assessment of her work experience did not establish that she was more qualified for the position than Farnetti; and (4) diversity in the District's hiring undermined any inference of discrimination. Report at 33-34. Plaintiff argues that Magistrate Judge Lindsay erred in relying upon hiring data through 2011, two (2) years after plaintiff's retirement, in determining that the diversity of defendant's administrators undermined any inference of discrimination. Objections at 19. The data showed that "from 2004 to 2011, the District hired nineteen minority individuals as principals and assistant principals," Report at 34, and the inclusion in this data of individuals hired after plaintiffs retirement does not diminish the weight of the evidence. Moreover, even if consideration of this data was improper, plaintiff's claim nonetheless fails due to the absence of evidence supporting an inference of discrimination. The remainder of plaintiffs objections only repeat her original arguments, and the Court finds no clear error in Magistrate Judge Lindsay's findings. Therefore, plaintiff's objections are overruled.
To present a prima facie case of retaliation, a plaintiff must present evidence sufficient to permit a rational trier of fact to find that (1) the employee engaged in conducted protected under Title VII, (2) the employer was aware of the protected activity, (3) the employer took adverse action against the employee, and (4) a causal connection exists between the protected activity and the adverse action. Kessler v. Westchester Cnty. Dep't of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir.2006); Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir.2001)). Magistrate Judge Lindsay found that plaintiff has failed to present evidence sufficient to find that defendants took adverse action against her in retaliation for any protected activity, stating that "[t]he record is devoid of evidence that the defendants limited [plaintiff's] duties or responsibilities after she complained about discriminatory behavior" or that she was subjected to a hostile work environment. Report at 36-37.
Plaintiffs objection to the recommended dismissal of her retaliation claim does not address Magistrate Judge Lindsay's finding that there is no evidence that she was subjected to the claimed adverse employment actions. Instead, plaintiff only argues
Given plaintiff's failure to present evidence of a constitutional violation, she cannot sustain a claim pursuant to sections 1981 or 1983, and the objections to the recommended dismissal of these claims are overruled.
To the extent that plaintiff has raised objections not specifically addressed above, the Court has determined that they are either reiterations of her original arguments or are not sufficiently specific to trigger de novo review of Magistrate Judge Lindsay's conclusions. The Court has reviewed the Report in its entirety and is satisfied that there is no clear error on the face of the record, and therefore any remaining objections are denied.
For the foregoing reasons, Magistrate Judge Lindsay's Report is adopted in its entirety as an order of the Court. Defendant's motion for summary judgment [Docket Entry No. 49] is granted and plaintiff's complaint is dismissed with prejudice. The Clerk of Court is respectfully directed to close this case.
LINDSAY, United States Magistrate Judge:
The plaintiff, Betty F. Brown Greene ("Greene"), commenced this action against the defendants, the Brentwood Union Free School District (the "District"), the Board of Education of the Brentwood Union Free School District (the "Board"), Board members George Talley ("Talley"), Lorraine Pace ("Pace"), Stephen Coleman ("Coleman"), and Ronald Jimenez ("Jimenez"), Superintendent Donna Jones ("Jones") and Assistant Superintendent Joan Lange ("Lange"), alleging that they discriminated against her on the basis of her race, gender and religion and retaliated against her for opposing the discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981, and the Equal Protection Clause as made actionable by 42 U.S.C. § 1983.
The following facts, drawn from the Complaint and the parties' Local Civil Rule 56.1 Statements, are construed in the light most favorable to the non-moving party, except as otherwise noted.
The plaintiff is an African-American woman who was hired by the District as a high school home economics teacher in 1978. Defs. 56.1 Statement at ¶ 1. The defendant Talley is a Caucasian man who became a member of the Board in 2003 and was President of the Board from 2008-2009. Id. at ¶¶ 4, 5. Pace is a Caucasian women who became a member of the Board in 2007 and was Vice-President of the Board from 2008-2009. Id. at ¶¶ 6, 7. Coleman is a Caucasian man who was a member of the Board from 1991 to 2012. Id. at ¶ 8. Jimenez is a Hispanic man who served as a member of the Board from July 2008 to June 2011. Id. at ¶ 9. Superintendent Jones is African-American woman. Id. at ¶ 2. She served as Superintendent of the District from 2007 to June 2010. Id. Assistant Superintendent Lange is a Caucasian woman. Id. at ¶ 3. She was the Assistant Superintendent for Secondary Education from June 2007 to August 2011. Id.
In 1998, Greene was promoted to the position of Teacher on Special Assignment/Dean of Students. Id. at ¶ 11. In 2006, she was promoted to the position of Assistant Principal for the Evening High School/Adult Education Program ("EHS"). Id. at ¶ 12. The Assistant Principal position had a probationary term from August 11, 2006 to August 10, 2009. Id. at ¶ 13. She maintained her position until July 1, 2009. See Complaint at ¶ 19.
Greene was appointed to the Assistant Principal position by interim Superintendent of Schools Michael Cohen. See Silverman Decl. at Ex. D at 18:5. Although Greene alleges in her complaint that she was the first African-American in twenty-five years to hold an assistant principal position at the high school level, see Complaint at ¶ 22, Greene does not deny that from 2004 to 2011, the District hired nineteen other minority individuals as principals and assistant principals. Defs. 56.1 Statement at ¶ 93. Of these nineteen individuals, ten individuals are African-American. Id. at ¶ 94. From 2008 to 2011, the District also appears to have employed twenty-three females as principals or assistant principals. See Silverman Decl. at Ex. OO, Resp. 2.
In her capacity as Assistant Principal for the EHS, Greene was responsible for four program areas: the Adult Education Program; the Summer School; English as a Second Language; and Records Retention. Complaint at ¶ 21. Her immediate supervisor was Denis Bracco ("Bracco"),
During the course of her employment, Greene received good performance reviews, was never the subject of any formal or informal disciplinary proceeding, and was recognized for her contributions to the District, in particular to the EHS Program. Id. at ¶¶ 25, 26. On June 4, 2008, Greene received her last annual evaluation. Id. at ¶ 30. In the evaluation, Bracco stated, among other things:
Gilliam Decl. at Ex. E.
On November 7, 2008, Greene was notified that she would become eligible for tenure consideration during the 2009/2010 school year. See Gilliam Decl. at H. The notice indicated that the supervisor would be meeting with her regarding a tenure evaluation and discussing her attendance during the probationary period. Id. Greene's name was then added to the Certified Personnel Appointment listing indicating that she was a tenure candidate "effective 9/1/09-6/30/10." Id. at Ex. Q.
On November 12, 2008, while Greene was still a probationary employee, Alexandria Nunez ("Nunez"), a tenth grader at Brentwood High School, stayed after school with a friend. Defs. 56.1 Statement at ¶¶ 14, 17. Nunez had just returned to school that day after undergoing a tonsillectomy. Id. at ¶¶ 15-16.
In the meantime, K called Nunez's mother and reported that her daughter was spitting up blood. Id. at ¶¶ 21-22; Silverman Decl. at Ex. T, p. 662. Mrs. Nunez told K to call an ambulance and immediately drove to school. Id. at ¶¶ 22-23.
According to K's version of the events, when Greene arrived at the music wing, K was in the process of calling 911. See Silverman Decl. at Ex. T. Greene appeared angry. Id. When K explained she was calling an ambulance, Greene told her "no," so she hung up the phone.
Greene's recollection concerning how she learned that an ambulance had been called is somewhat inconsistent. The day after the incident, Greene reported that K had informed her that Nunez's mother had instructed her to call an ambulance. See Silverman Decl. at Ex. T, p. 658. A few days later, during her interview, Greene repeated that K had reported that she had called the police, but she also said she "had no clue if the police had been contacted." See Silverman Decl. at Ex. T.
Mrs. Nunez arrived at school at the same time as the ambulance. Id. at ¶ 30. According to Mrs. Nunez, Greene had phoned her before her arrival to say she was not going to be able to call an ambulance because they would not take Nunez without her being present at school.
As soon as Nunez was placed in the ambulance, she started throwing up blood again. Id. at ¶ 31. Nunez was admitted for a one night stay and lost two liters of blood. Id. at ¶ 33. Greene then reported the incident to Bracco. Id. at ¶ 34.
The day after the incident, Mrs. Nunez called the Principal of the high school to lodge a complaint. Defs. 56.1 Statement at ¶ 36. The Principal said he would get back to her but he didn't. Id. at ¶ 35. Mrs. Nunez then called Pace, who she had met when her daughter was in the competitive marching band. Id. at ¶ 36. Pace told her to call the school again and that someone would get back to her. Id. at ¶¶ 36-37. Pace, along with George Talley, then informed Jones about the incident and asked her to conduct an investigation. See Gilliam Decl. at Ex. MMM, 151:22. In response to their request, Jones met with Mrs. Nunez and directed Assistant Superintendent Lange to investigate the matter. Id. at ¶¶ 39, 40.
During the investigation, Lange interviewed Greene
Id. Lange also reported that according to Greene, "You could see blood on the student's ID and there was a lot of blood in the garbage can outside the music classroom." Id. Lange further reported:
Id. at 656. Lange concluded her report by stating:
Id.
Upon receipt of the report, Jones was conflicted about what action to take because Greene had been an employed by the District for many years, had a record of good performance, her family lived in the community, and she had been a good advocate for children. Id. at ¶ 53. However, the investigation had called into question Greene's judgment. Id,; see Gilliam Decl. at MMM, 156:19-157:12. In addition, Jones had received reports indicating that Greene had shown no remorse for the incident despite the fact that there were serious concerns of poor judgment that could have led to a very serious situation involving the child. See Gilliam Decl. at MMM, 160:18. Jones would have been comfortable adopting Lange's recommendation, but Talley and Pace felt strongly that Greene needed to be terminated because she had endangered the life of a child. Id. at 162:12-24; see also Def. 56.1
Following the meeting, O'Brien met with Greene on numerous occasions to discuss her option of resigning rather than being terminated, which Greene would not consider. Id. at ¶ 57. Accordingly, on January 22, 2009, two months after the incident, Jones finally advised Greene in writing that she would be recommending Greene's termination at the February 25, 2009 board meeting. Id. at ¶ 58; Silverman Decl. at Ex. X. Upon receipt, Greene mailed Jones a written statement setting forth her credentials as well as her ties to the community and requesting that Jones provide her with the reasons for her recommendation. Silverman Decl. at Ex. Y. However, on February 5, before Jones could respond, Greene changed her mind and submitted her resignation to the Board, indicating that she was "retiring with all the due benefits provided in the B.P.S.O. contract." Id. at AA.
On February 12, 2009, Jones nonetheless responded to Greene's request for the reasons for her recommendation. Id. at ¶ 60. In her letter, Jones indicated that she had intended to make the recommendation because Greene had "used poor judgment that endangered the life of a student." Id. at ¶ 60; see Silverman Decl. at Ex. Z. Thereafter, on February 25, 2009, the Board voted to accept Greene's resignation effective July 1, 2009. Id. at ¶ 64. As a result, the Board never voted on whether to accept Jones' recommendation to terminate Greene. Id. at ¶ 63.
Less than one month later, the District posted a notice for the position of Principal of the Evening High School effective July 1, 2009, with an application cut-off date of March 26, 2009.
In response to the second posting, Jack Farnetti and William Dargan applied for the position. Id. at ¶ 75. Farnetti, who had served as an Assistant Principal at the High School for six years, was interviewed by the committee. Id. at ¶¶ 75, 84; see Silverman Decl. at Ex. E, 64:9-10. Dargan, who was retired, was not interviewed. Id. Before Jones could make her recommendation, the District also posted a notice for the position of Assistant Principal of the Evening High School, the position that would become available upon Greene's retirement. Defs. 56.1 Statement at ¶ 78. Seven people applied for that job and three were interviewed. Id. at ¶¶ 78-79. The three people interviewed, namely Alexander
Based on all of these events, Greene alleges in her complaint that the defendants (1) wrongly disciplined and terminated her, denied her consideration for tenure, and denied her a promotion because of her race in violation of Title VII, (2) denied her the promotion because of her gender in violation of Title VII, (3) retaliated against her by limiting her duties and responsibilities after she complained about the disparate and discriminatory treatment in violation of Title VII, (4) denied her tenure and the promotion because of her religion in violation of Title VII, (5) deprived her of equal protection by disciplining and terminating her, changing her work assignments, and creating a hostile work environment in violation of 42 U.S.C. § 1981, (5) and deprived her of equal protection by denying her the promotion, tenure and continued employment in violation of 42 U.S.C. § 1983. In her memorandum, Greene summarizes her claims, alleging that "she was being discriminated against in order to block her tenure and further deny her a promotion to Principal EHS." Pl. Opp. at 1.
The defendants now move for summary judgment on the following grounds: (1) the Jones' recommendation was not an adverse action; (2) Greene was not qualified for the Principal job given the fact that she had resigned and would be retired as of the start date for the position; (3) the District had legitimate and non-discriminatory reasons for its actions; and (4) Greene has not presented any evidence of a pretext for their actions.
"`Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law.'" Puglisi v. Town of Hempstead, 2012 WL 4172010 *6, 2012 U.S. Dist. LEXIS 133281 *15 (E.D.N.Y. Sept. 17, 2012) (quoting In re Blackwood Assocs., L.P., 153 F.3d 61, 67 (2d Cir.1998) and citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); Fed.R.Civ.P. 56(c). In deciding a summary judgment motion, the district court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the opposing party. See Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 137 (2d Cir. 1998). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir.1996), cert denied, 520 U.S. 1228, 117 S.Ct. 1819, 137 L.Ed.2d 1027 (1997).
The trial court's responsibility is "`limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.'"
Title VII prohibits an employer from discriminating against any individual "with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1); see Richardson v. Commission in Human Rights & Opportunities, 532 F.3d ¶ 4, ¶ 9 (2d Cir.2008). Greene contends that she was discriminated against on the basis of her race, gender and religion. Specifically, Greene asserts that she was wrongfully disciplined, terminated, denied consideration for tenure and denied a promotion because of her race. See Complaint at ¶ 108-113. She also asserts that was denied the promotion because of her sex. Id. at 114-117. Finally, she asserts that she was denied consideration for tenure, constructively discharged and denied the promotion because of her religion. Id. at ¶ 124-129. "The ultimate issue' in any employment discrimination case is whether the plaintiff has met her burden of proving that the that the adverse employment decision was motivated at least in part by `impermissible reason, i.e., that there was discriminatory intent.'" Weisbecker v. Sayville Union Free Sch. Dist., 890 F.Supp.2d 215, 231 (E.D.N.Y.2012). Since Greene's race, gender and religion claims overlap, the court will address them together.
Courts generally apply the McDonnell Douglas burden-shifting analysis to discrimination claims such as these "to assure that the `plaintiff [has her] day in court despite the unavailability of direct evidence.'" Short v. Manhattan Apartments, Inc., 916 F.Supp.2d 375, 396 (S.D.N.Y.2012) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985)). "However, `[t]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination. To avoid the burden-shifting analysis, `the plaintiff must be able to produce a `smoking gun' or at least a `thick cloud of smoke' to support [her] allegations of discriminatory treatment.'" Id. at 396 (citing Raskin v. Wyatt Co., 125 F.3d 55, 61 (2d Cir.1997) (internal citations omitted)). Here, Greene has not presented the type of evidence needed to circumvent the McDonnell Douglas framework.
Greene contends that she has offered direct evidence of discrimination, that is, proof of Talley's racial and sexual animus.
Gilliam Decl. at Ex. TTT 150:19-154:24.
Similarly, Greene's counsel asked Jones:
Gilliam Decl. at Ex. MMM 141:18-142:24. In her deposition, Jones was also read a statement in which Talley was said to have referred to her as a "black bitch" and she indicated that she believed it was something Talley would have said to Scimeca. Gilliam Decl. at Ex. MMM 142:25-144:4.
The testimony of O'Brien and Jones commenting on the affidavit of a co-worker in which he reiterates derogatory statements allegedly made by Talley is inadmissible hearsay.
Greene also refers to a chart prepared by defense counsel listing other complaints of discrimination against the District and Talley.
Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination by showing that she (1) belonged to a protected class, (2) was qualified for the position she held or sought, (3) suffered an adverse employment action, and (4) did so under circumstances giving rise to an inference of discriminatory intent.
The employer's burden of showing a legitimate non-discriminatory reason for its actions is not a particularly steep hurdle. It is not a court's role to second-guess an employer's personnel decisions, even if foolish, so long as they are non-discriminatory. See Seils v. Rochester City Sch., Dist., 192 F.Supp.2d 100, 111 (W.D.N.Y.2002) (citing, inter alia, Meiri, 759 F.2d 989, 995 (2d Cir.1985)). Federal courts do not have a "roving commission to review business judgments," Mont. v. First Fed. Sav. & Loan Ass'n of Rochester, 869 F.2d 100, 106 (2d Cir.1989) (quoting Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 21 n. 8 (7th Cir.1987)), and may not "sit as super personnel departments, assessing the merits — or even the rationality — of employers' non-discriminatory business decisions." Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir.1991). Thus, "[e]vidence that an employer made a poor business judgment generally is insufficient to establish a question of fact as to the credibility of the employer's reasons." Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir.1988).
If the employer establishes a legitimate nondiscriminatory reason for its actions, the McDonnell Douglas framework and its presumptions and burdens disappears, leaving the sole remaining issue of "discrimination vel non," and the burden shifts back to the plaintiff to prove that the employer's stated reason is merely pretextual and that discrimination was an actual reason for the adverse employment action. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In order to demonstrate that the employer's stated non-discriminatory reasons for the allegedly discriminatory action are pretextual, "[a] plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the motivating factors."
Although intermediate evidentiary burdens shift back and forth under this framework, "[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." St. Mary's Honor Cntr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir.1998) ("the thick accretion of cases interpreting the burden shifting framework should not obscure the simple principle that lies at the core of anti-discrimination cases ... the plaintiff has the ultimate burden of persuasion"). With these standards in mind, the court will address Greene's collective Title VII allegations.
As stated above, Greene alleges that the defendants wrongfully disciplined and terminated her, denied her an extension of her probationary period, denied her consideration for tenure and denied her a promotion because she is an African-American, Christian woman. The defendants do not dispute that Greene was a member of a protected class with respect to each of her claims. They do dispute, however, that she suffered an adverse employment action with respect to the Nunez incident and that she was qualified for the position of Principal of the Evening High School. Moreover, the defendants contend that they had legitimate nondiscriminatory reasons for recommending her termination and denying her a promotion and that Greene has failed to present sufficient evidence that the reasons they have articulated for their decisions are a pretext.
"A plaintiff suffers an adverse employment action when she experiences a "materially adverse change in the terms and conditions of employment." Typical adverse employment actions may include termination from a job, decrease in salary, material reduction in benefits or responsibilities, or a less distinguished title." Weisbecker, 890 F.Supp.2d at 233 (internal citations omitted). Greene argues in her opposition papers that she has experienced an adverse employment action because had she not resigned and retired from her position, she would have been terminated. Pls. Opp. at 16. Greene also contends that the District's decision to deny her tenure, rather than to extend her probationary period, as an alternative to the recommendation to terminate, is a covered activity under Title VII. Id. at 17. Although Greene characterizes the defendants' conduct as distinct adverse actions, it is clear that these actions are one and the same.
The defendants never voted on Greene's termination or discussed her eligibility for tenure. In fact, she was not eligible for tenure consideration until September 1, 2009. See Gilliam Decl. at Exs. H, Q. The only action taken by the defendants was Jones' recommendation to terminate Greene's employment and that recommendation does not constitute an adverse employment action. Weisbecker,
Id. at 233 (internal citations omitted).
Similarly, Greene was not considered for tenure because she resigned before she became eligible. Greene was not eligible for tenure consideration until the 2009-2010 school year. See Gilliam Decl. at Exs. H, Q. She submitted her resignation on February 5, 2009, effective July 1, 2009. There is not a shred of evidence suggesting that before the Nunez incident, the Board had already begun to consider Greene's eligibility for tenure or that their desire to deny her of that privilege somehow influenced Jones' decision. Compare Curcio v. Roosevelt Union Free Sch. Dist., 2012 WL 3646935, *7, 2012 U.S. Dist LEXIS 120144 *22 (E.D.N.Y. Aug. 22, 2012) (SJF) (where defendants conceded that recommendation of denial of tenure was an adverse action).
Nor can the recommendation be considered a constructive discharge. "For a court to consider constructive discharge a plaintiff must show that employer `intentionally create[d] a work atmosphere so intolerable that [the employee] is forced to quit involuntarily.'" Madray v. Long Island University, 789 F.Supp.2d 403, 409 (E.D.N.Y.2011) (citing Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d Cir.2003)). Greene contends that "[t]he accumulative effect of individual acts by Lange [and] Jones were so pervasive that plaintiff's work environment was so severe that she was forced to retire." Pl. Opp. at 22. A review of the record indicates that these actions did not, however, create the type of atmosphere that would have compelled a reasonable person in Greene's shoes to resign. Greene could have waited for Jones' explanation and submitted a response directly to the Board before submitting her resignation.
With respect to Greene's application for the Principal position, the defendants do not dispute that the failure to promote is an adverse employment action. See Bir v. Pfizer, Inc., 510 Fed.Appx. 29, 31-32 (2d Cir.2013). They argue, instead, that Greene has failed to establish a prima facie because she was not qualified for the job. In this regard, the defendants contend that the position started on July 1, 2009, the same day the Greene was due to retire. See Silverman Decl. at Exs. CC and FF. Pursuant to Section 211 of the New York State Retirement and Social Security Law, "[n]o retired person may be employed in a position in public service... except upon approval of ... the commissioner of education." N.Y. Retire & S.S. § 211(2)(a)(2). Moreover, to obtain approval from the Commissioner of Education, the District must file a written request for approval, which certifies, among other things, "[t]hat the district ... has undertaken an extensive and good faith recruitment search for a certified and qualified candidate and determined that there are no available non-retired persons qualified to perform the duties of such position." * N.Y.C.R.R. § 80-5.5(c)(2)(i).
Greene does not, and could not, dispute the existence of the retirement barrier in this case. It is undisputed that the Board had already voted to accept her resignation, effective July 1, 2009, the start date for the position. It is also undisputed that Jack Farnetti, who was hired for the position, was not retired and was qualified for the job having served as an Assistant Principal at the High School for six years. Defs. 56.1 Statement, at ¶¶ 75, 84; see Silverman Decl. at Ex. E, 64:9-10. Nonetheless, she argues that since she was still employed when the District interviewed for the position, the Board could have rescinded its decision to accept her resignation. It is clear, however, that Greene never made such a request to the Board. Moreover, while Greene argues that she was the better candidate for the position, and therefore, should have been considered, Farnetti was certainly a qualified candidate as defined by the New York State Education Department. Therefore, the court agrees that given her resignation and retirement status as of July 1, 2009, Greene was not qualified for the position.
Accordingly, Greene has not established a prima facie case for race, gender or religious discrimination with respect to Jones' recommendation of termination or the promotion, and no reasonable jury could find otherwise.
Even if Greene could establish a prima facie case, Greene's discrimination
To establish that the defendants' explanations for its decisions were a pretext, Greene begins by relying on the same evidence that she offered in support of her prima facie case, namely, "Talley's racial animus." See Weisbecker, 890 F.Supp.2d at 232 (plaintiff may rely on evidence presented to establish her prima facie case as well as additional evidence). "At the pretext stage, `a Title VII plaintiff ... may offer evidence of remarks made by the employer at or about the time of the adverse action `to show that the decision-maker was motivated by the discriminatory sentiment expressed in the remark.''" Ingenito v. Riri USA, Inc., 2013 WL 752201 *11, 2013 U.S. Dist. LEXIS 27333 *38 (E.D.N.Y. Feb. 27, 2013). As noted supra, however, Greene's evidence of Talley's racial animus was inadmissable hearsay.
Greene's contention that Talley controlled the Board and Jones, acting as the "defacto personnel department" when the decision was made to recommend her termination is also not supported. Greene has not offered any evidence on which a reasonable person could infer that "Lange was being unreasonable harsh and taking an untenable position" when she conducted the investigation. Pl. Opp. at 21. Greene disputes that she told K to hang up the phone and Mrs. Nunez that she could not call an ambulance. She also argues that, notwithstanding Lange's findings, she did what was supposed to do: "[s]he followed the chain of command, alerted security, who advised her that the ambulance had already been called, she inquired of the student why she was spitting up blood, ... she ensured that the student was stable
Nor is there any evidence that Jones was being pressured by Talley and Pace to terminate Greene before the investigation had begun. Pl. Opp. at 21. While it is undisputed that Talley and Pace both thought that Greene should be terminated after the Nunez incident, and communicated their feelings to Jones, she did not immediately adopt there viewpoint. In fact, the record is clear that Jones struggled with the decision:
Gilliam Decl. At Ex. MMM, 156:3-158:8. Jones further testified that the reports that she had received suggested that "there was no remorse for the incident ... and there was a serious concern of judgment, poor judgment that could have led to a very serious situation involving a child." Id. at 160:18-25. Accordingly, while Jones, who initially advocated for Greene, may have been influenced by the viewpoints of Board members, there is no evidence to suggest that her ultimate decision was motivated by discrimination.
Likewise, Greene has not offered sufficient evidence to support her contention that she was treated differently with respect
While "evidence of disparate treatment of similarly situated individuals allows for the conclusion that the reasons advanced by an employer in a Title VII context are pretextual," see Snmma v. Hofstra, 708 F.3d 115, 130 (2d Cir.2013), a plaintiff who seeks to establish disparate treatment must show that the employee to whom she compares herself is "similarly situated in all material respects." McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir.2001). In this context, the Second Circuit has explained:
Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir.2000) (internal quotation marks and citations omitted).
The record reflects that Reuben, a white-male, Assistant Principal, who was accused of making inappropriate sexual statements to a student was placed on home assignment and permitted to resign his position. He was then reassigned to the position of teacher/dean rather than being terminated. Gilliam Decl. at Ex. JJJ. However, the investigative report concluded that the student's claims of sexual misconduct were "unbelievable." Id. In addition, Reuben was later terminated for a unrelated incident, and thus, received a comparable, if not more severe, punishment for his conduct. Id.
Palumbo, a social worker/dean, who was alleged to have harassed students and teachers, was placed by Jones on administrative leave pending an investigation. Id. at MMM 87:13. Greene urges the court to consider that despite his serious conduct "Jones was blocked by the board from terminating [Palumbo] and had to settle for referring him to counseling." However, the record reflects that the Board could not terminate Palumbo because
Finally, Greene alleges that Escorbores was involved in inappropriate conduct which could have led to his termination and the Board agreed to extend his probationary period for a fourth year. Gilliam Decl. at Ex. SS; Pl. Opp. at 19. While it is clear from the record that Escorbores' probationary period was extended, the court in unable to determine from the record whether his conduct was of comparable seriousness. Therefore, Reuben, Palumbo, Suarez and Escorbores are not proper comparators.
Greene's claim that she was disparately treated with respect to the promotion is also unavailing. In support of this allegation, Greene contends that because she is an African-American, Christian women, she was not even interviewed for the job, whereas Farnetti, who was less qualified, was promoted because he was a white man. A review of the record demonstrates the following. Initially, two men applied for the position along with Greene, namely DeConstanzo and Escorbores. Defs. 56.1 Statement at ¶ 71. DeConstanzo and Escorbores were interviewed by the screening committee led by Lange, but Greene was not. Id. at ¶ 71. In May, the District re-posted the notice for the position indicating that prior applicants need not reapply. Id. at ¶¶ 73, 74. Following, the posting Farnetti and Dargan applied. Id. at ¶ 75. The screening committee determined that Dargan was not eligible for the position because he had retired.
Greene argues that the fact that Lange, who she and others viewed as uncharacteristically harsh regarding the Nunez incident, was willing to even interview Escorbores and DeConstanzo shows that other employees were treated more favorably. This argument is utterly without merit. Greene has presented no evidence to show these candidates had engaged in conduct that should have effected their employment prospects. Greene only offers that Escorbores' probationary term had been extended prior to his application, but as discussed, supra, the circumstances leading up to the extension are not part of the record before the court. See Tu v. Oppenheimer Funds, Inc., 2012 U.S. Dist. LEIS 19867 *17 (S.D.N.Y. Feb. 15, 20120) ("When the conduct reflects `no hint as to any [discriminatory] reason,' and `[a]ttributing the reason to race [or gender] would be based entirely on speculation,' a plaintiff
There is also no merit to Greene's claim that Talley forced Escorbores to withdraw his application, to pave the way for a white candidate. The only evidence offered by Greene to support her contention is Jones' testimony in which she recalls "some conversation" between Talley and Escorbores that was influential in his decision. See Gilliam Decl. at Ex. at MMM 146:24. However, to dispel any notion that Escorbores was forced out by Talley, Escorbores has provided a sworn affidavit to the court in which he states that he withdrew his application because of personal commitments and was not influenced by Talley. See Silverman Decl. at Ex. MM.
Greene also argues in support of her allegation of disparate treatment that she was more qualified for the position. Greene does not dispute that Farnetti had "longevity in the District," having served as an Assistant Principal for six years, twice as long as she had. Rather, Greene argues that one can infer discrimination from the fact that Farnetti did not have experience in the EHS program areas and later had difficulty handling a state audit and a riot with stabbings. This argument is simply unavailing. "An employee's own assessment of [her] work performance is insufficient to establish pretext." Stevens v. New York, 2011 WL 3055370 *7, 2011 U.S. Dist. LEXIS 80300 *22 (S.D.N.Y. July 20, 2011).
Finally, "courts in this circuit have noted that diversity in a defendant's staff undercuts an inference of discrimination." Subramanian v. Prudential Securities, Inc., 2003 WL 23340865 *8, 2003 U.S. Dist. LEXIS 23231 *23 (E.D.N.Y. Nov. 20, 2003). As previously noted, from 2004 to 2011, the District hired nineteen minority individuals as principals and assistant principals, although none, as Greene points out were hired as the Principal of the Evening High School. Defs. 56.1 Statement at ¶ 93. Of these nineteen individuals, ten individuals appear to be African-American. Id. at ¶ 94. In addition, from 2008 to 2011, the District employed twenty-three females as principals or assistant principals. See Silverman Decl. at Ex. OO, Resp. 2.
In sum, Greene has not submitted any evidence that the defendants' reasons for their decisions to recommend her termination or deny her a promotion were merely pretextual. Accordingly, the undersigned recommends that Greene's Title VII race, gender and religious discrimination claims be dismissed.
The defendants also seek summary judgment with respect to Greene's retaliation claims. In her complaint, Greene contends that the defendants retaliated against her after she complained of "race" discrimination and "continued said retaliation after [she] complained about disparate treatment based on the disciplinary action taken against her and her forced retirement." Complaint at ¶ 119. Specifically, Greene stated in her February 20, 2009 rebuttal letter to Jones, "I believe this incident is a pretext to obtain my early retirement for discriminatory reasons." Gilliam Decl. at Ex. Y. She also alleges that the community complained about her discrimination at the November 24, 2008
To establish a prima facie case of retaliation, a plaintiff must show that: (1) she participated in an activity protected under Title VII; (2) the employer was aware of her participation in the protected activity; (3) the employer took adverse action against her based on her protected activity; and (4) there was a causal connection between the protected activity and the adverse action taken by the employer. Kessler v. Westchester County Dep't of Social Servs., 461 F.3d 199, 206 (2d Cir. 2006). The "protected activity" element of a retaliation case turns upon whether the employee has protested an unlawful employment practice, within the meaning of Title VII.
The record is devoid of evidence that the defendants limited Greene's duties or responsibilities after she complained about discriminatory behavior. In her deposition, Greene avers that she was not allowed to attend an ELS meeting with state representatives or to take a course in the computer department. Silverman Decl. at Ex. D, 120:18-121:8. However, there is no evidence to support her testimony or explain why she might have been excluded from those two events. Although Greene contends that Bracco told her she could not attend the ELS meeting, Greene does not recall if Bracco said why and neither Bracco nor O'Brien have any recollection of her ever complaining that she was not allowed to attend meetings, functions or workshops. Id. at Ex. L, 54:7-23; Ex. K, 73:8-25. Greene also does not recall when she was notified that she could not attend a computer class or whether it was after she had already submitted her resignation. Id. at Ex. D, 123.
With regard to the hostile work environment, Greene explained at her deposition that "somebody [at work] said, `Don't use your phone because it's tapped.' It just became a very hostile work environment." Id. at Ex. D, 121:6. However, she does not recall who told her not to use the phone or whether it was said to her in
In short, Greene's Title VII retaliation claim is not supported by sufficient evidence, and thus, the undersigned recommends that it be dismissed.
In her fifth cause of action, Greene contends that the defendants violated 42 U.S.C. § 1981 in that they treated her differently than other similarly situated employees as evidenced by (1) the determination of Lange and Jones that she exercised poor judgment and endangered the welfare of a minor, which resulted in their decision to discipline her and seek her termination and (2) the decision of Jones, Talley, Pace, Coleman and Jimenez to force her retirement and thereby eliminate her from consideration for a promotion or tenure. Complaint at ¶¶ 132-134. Greene further contends that the Board and the District had knowledge of Talley's racial animus and failed to take appropriate measure to disavow such unlawful conduct. Id. at ¶ 135.
Section 1981 provides that:
42 U.S.C. § 1981.
Greene's Section 1983 claim mirrors the Section 1981 claim. Greene contends that the District and the Board's decision to subject her to unwarranted discipline, to force her retirement, to deny her consideration for tenure and to deny her a promotion on account of her race violated her rights to Equal Protection. Complaint at ¶¶ 142-144. Again, for the reasons discussed above, summary judgment on the plaintiffs Section 1983 claim is appropriate and the court recommends that the claim be dismissed.
A copy of this Report and Recommendation is being served by the Court on all parties. Any objections to this Report and Recommendation must be filed with the Clerk of the Court within 14 days. Failure to file objections within this period waives the right to appeal the District Court's Order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Candle, P.C., 596 F.3d 84, 92 (2d Cir.2010); Beverly v. Walker, 118 F.3d 900, 902 (2d Cir.1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir.1996).
Dated: Central Islip, New York, April 9, 2012.
