JOHN G. KOELTL, District Judge:
The plaintiff, Lynnea Wesley-Dickson, brings this action against Warwick Valley Central School District (the "School District"), Christine Fox, Marijane Reinhard, and Kathy Carmody (collectively, the "defendants"). Defendants Fox, Reinhard, and Carmody are allegedly sued in their individual and official capacities. The plaintiff, an African-American woman diagnosed with cancer, was an employee of the School District, and alleges that she was discriminated against on the basis of her race and disability.
The plaintiff brings claims against the defendants, pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981 ("Section 1981"); 42 U.S.C. § 1983 ("Section 1983"); the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq.; and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 et seq. The defendants now move for summary judgment dismissing all of these claims, pursuant to Rule 56 of the Federal Rules of Civil Procedure.
The standard for granting summary judgment is well established. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir.1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully 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." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will identify those facts that are material and "[o]nly
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible...." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993).
The following facts are undisputed for the purposes of this motion, unless otherwise indicated.
The School District is a public K-12 school district. (56.1 Stmts.
The plaintiff's supervisor during her first year of probationary employment was Tammy Cosgrove, Director of Pupil Personnel Services (the "Director") for the School District. (56.1 Stmts. ¶ 6.) The Director is required, among other things, to review annually the performance of the Supervisor of Special Education. (56.1 Stmts. ¶ 7.) For probationary employees, the Director's evaluation is used by the Superintendent of Schools in determining whether to recommend to the School District's Board of Education (the "Board") that the employee be awarded tenure at the end of the probationary term. (56.1 Stmts. ¶ 8.)
During the plaintiff's first year of probationary employment with the School District, Ms. Cosgrove counseled the plaintiff, both orally and in writing, about aspects of the plaintiff's performance that needed improvement. (56.1 Stmts. ¶ 9.) On March 1, 2006, Ms. Cosgrove issued the plaintiff a written letter, in which Ms. Cosgrove identified "ongoing proofing and editing concerns" associated with the plaintiff's work product. (56.1 Stmts. ¶ 10.)
At the end of the 2005-2006 school year, Ms. Cosgrove completed a performance evaluation for the plaintiff. (56.1 Stmts. ¶ 11.) The evaluation was generally positive, commending the plaintiff for her strong interpersonal skills and personal qualities, and stating that the plaintiff had "excellent potential to be successful" in her position. (Bryant Aff. Ex. D.) However, the evaluation also highlighted some serious reservations that Ms. Cosgrove had. (Bryant Aff. Ex. D.)
Ms. Cosgrove also noted that the plaintiff's support staff was "stepping in" to complete tasks that fell under the plaintiff's job description "in order to prevent parent outrage and service provider ire." (56.1 Stmts. ¶ 14.) Ms. Cosgrove went on to note that:
(Bryant Aff. Ex. D; 56.1 Stmts. ¶ 15.)
According to Ms. Cosgrove, "[t]he concerns with Ms. Wesley-Dickson's timeliness and writing skills are significant as they pose a real impediment to producing `legally defensible documents' — the gold standard in the field of special education." (Bryant Aff. Ex. D; 56.1 Stmts. ¶ 16.) Ms. Cosgrove cautioned, "[s]hould gains in [the areas of timeliness and quality of written products] not be demonstrated, serious consideration should be given to the appropriateness of continuing on in such a writing-intensive position." (Bryant Aff. Ex. D; 56.1 Stmts. ¶ 17.)
In June 2006, Ms. Cosgrove left the Director position, and Kathleen Carmody was asked to serve as the Director on an interim basis. (56.1 Stmts. ¶ 25.) Ms. Carmody served as the Director until approximately September 2006, when the School District permanently appointed Elizabeth Kirnie as the Director. (56.1 Stmts. ¶ 27.) After Ms. Kirnie resigned in December 2006, Ms. Carmody became the acting Director for the rest of the 2006-2007 school year. (56.1 Stmts. ¶¶ 28-30.)
The plaintiff alleges that, in around December 2006, when she told Ms. Carmody that she needed to take absences for chemotherapy, Ms. Carmody stated that she had a colleague on chemotherapy who came to work very unkempt at times and was unable to remember anything. (Wesley-Dickson Dep. at 86-90.) Ms. Carmody denies making any such statement to the plaintiff. (Carmody Aff. ¶ 8.)
On or about May 10, 2007, the plaintiff attended a meeting with the Superintendent of Schools at that time, Dr. Frank Greenhall. (56.1 Stmts. ¶ 32.) Superintendent Greenhall informed the plaintiff about the possibility that he would not recommend her for tenure. (56.1 Stmts. ¶ 33.)
At some point in 2007, the plaintiff contacted her union representative, Ms. Mary Jane Hamburger, after receiving some negative memoranda about her work. (Hamburger Dep. at 15.) The plaintiff alleges that Ms. Hamburger advised Superintendent Greenhall that the School District failed to follow its own policies with respect to the plaintiff, because the
On or about June 28, 2007, Superintendent Greenhall asked Ms. Carmody to create a professional evaluation for the plaintiff. (56.1 Stmts. ¶ 34.) While supervising the plaintiff during the 2006-2007 school year, Ms. Carmody shared many of the same concerns that Ms. Cosgrove had with respect to the plaintiff's ability to perform competently the essential functions of her position. In her evaluation, Ms. Carmody stated:
(Carmody Aff. Ex. A.)
During the late summer of 2007, Christine Fox was appointed Director and became the plaintiff's supervisor. (Fox Aff. ¶ 3.) From August 2007 through January 2008, Ms. Fox wrote six memoranda and letters of counsel to the plaintiff concerning various performance deficiencies of the
Dr. Marijane Reinhard is the current Assistant Superintendent of Curriculum and Instruction Services for the School District, and has held this position since August 1999. (Reinhard Aff. ¶ 1.) The plaintiff alleges that on or about September 17, 2007, Dr. Reinhard told the plaintiff — an African-American woman wearing a head scarf at the time — that the plaintiff sounded "just like Aunt Jemima" when the plaintiff called her "Ms. Marijane." (2d Am. Compl. ¶ 36.) Dr. Reinhard admits telling the plaintiff that she "sound[ed] like Aunt Jemima," but claims the comment was made in response to the plaintiff's calling her "Ms. Marijane" in a southern accent. (Reinhard Aff. ¶ 4.) Dr. Reinhard claims that she was simply joking with the plaintiff, and that at the time she made the comment she did not understand that it would be offensive. (Reinhard Aff. ¶ 4.)
The plaintiff also alleges that approximately one week thereafter, Dr. Reinhard told the plaintiff that the plaintiff "sounds like [she] was down on the plantation." (2d Am. Compl. ¶ 36.) Dr. Reinhard denies making such a comment or any comment similar to that. (Reinhard Aff. ¶ 4.) Dr. Reinhard also states that she was not the plaintiff's supervisor, did not review the plaintiff's performance, and had no input into any performance evaluations of the plaintiff. (Reinhard Aff. ¶ 3.)
Ms. Fox completed a performance evaluation for the plaintiff dated February 25, 2008. (Fox Aff. Ex. K.) In her evaluation, Ms. Fox identified concerns associated with the plaintiff's ability to perform her job competently. (Fox Aff. Ex. K.) The evaluation concluded:
(Fox Aff. Ex. K.)
In March 2008, Superintendent Greenhall informed the plaintiff that he would not recommend to the Board that the plaintiff be awarded tenure. However, Superintendent Greenhall offered the plaintiff an additional year of probationary employment. (2d Am. Compl. ¶¶ 65, 68.) The plaintiff alleges that Superintendent Greenhall initially said to the plaintiff that this potential arrangement had nothing to do with her health, but that later in the conversation he inquired into her health and a couple days later asked her how her chemotherapy treatments were going. (Wesley-Dickson Dep. at 101.) The plaintiff accepted the additional year of probationary employment and did not file a grievance with her union. (Bryant Aff. ¶ 6; Wesley-Dickson Dep. at 97-98.)
Thereafter, the plaintiff's superiors continued to receive complaints about the plaintiff and noted deficiencies in her performance. On April 16, 2008, Ms. Fox issued a letter of counsel to the plaintiff after it was reported to Ms. Fox that the plaintiff was late to a meeting which the plaintiff was supposed to chair, and the plaintiff responded without denying her lateness. (Fox Aff. ¶ 13, Exs. L, M.) On May 13, 2008, Ms. Fox received a memorandum from one of the support staff complaining about the plaintiff's abusive conduct. (Fox Aff. ¶ 14.) On May 19, 2008, Ms. Fox issued a memorandum to the plaintiff, which identified specific directives
On May 29, 2008, the School District received by mail a copy of a complaint the plaintiff had filed with the Orange County Human Rights Commission (the "Commission") on May 21, 2008, which was forwarded by the Commission to the New York State Division of Human Rights ("NYSDHR") and received by the NYSDHR on May 27, 2008. (Quesnel Aff. ¶¶ 3-4, Exs. A, B.) The complaint contained allegations of racial discrimination and disability discrimination. (Quesnel Aff. Ex. B.)
On June 19, 2008, Ms. Fox issued the plaintiff a letter of counsel concerning the plaintiff's abusive treatment towards the support staff. (Fox Aff. ¶ 16.) On August 8, 2008, Ms. Fox prepared an evaluation of the plaintiff for the 2007-2008 school year. (Fox Aff. ¶ 17, Ex. R.) The evaluation noted that "there are still considerable concerns that continue, specifically the ability to follow-through on cases and paying attention to the details that come with each case." (Fox Aff. Ex. R.) The evaluation concluded:
(Fox Aff. Ex. R.)
The plaintiff alleges that Ms. Fox told the plaintiff the night before a mandatory diversity conference that Ms. Fox felt that the leaders, who were African-American, were a waste of her time and had no validity for her. (Wesley-Dickson Dep. at 21-23.) The plaintiff recalled no other comment by Ms. Fox about the plaintiff's race or the race of any other employees. (Wesley-Dickson Dep. at 29; Defs.' 56.1 Stmt. ¶ 92.)
In September 2008, the plaintiff received a memorandum from Ms. Fox concerning lack of communication and two letters of counsel from Superintendent Greenhall concerning insubordination and incomplete work and a complaint about the plaintiff from the District Transportation Department. (Fox Aff. ¶ 18, Ex. S; Bryant Aff. ¶ 13, Exs. H and I.) Also around September 2008, the plaintiff requested an extended medical leave of absence, which was granted by the School District. (Bryant Aff. ¶ 6.)
In July 2009, the School District hired Dr. Raymond Bryant to act as Superintendent, (Bryant Aff. ¶ 1), following the retirement of Dr. Greenhall, who died in August 2009 from cancer. (Quesnel Aff.
On or about February 16, 2010, Mr. Kolesar wrote a performance evaluation for the plaintiff. In his performance evaluation, Mr. Kolesar noted some concerns associated with the plaintiff's work performance that were similar to concerns noted in the plaintiff's prior performance evaluations. (Kolesar Aff. ¶ 6, Ex. C.)
In March 2010, the plaintiff was informed by Superintendent Bryant that he would recommend to the Board that the plaintiff not be awarded tenure. (2d Am. Compl. ¶ 104.) According to Superintendent Bryant, he made this decision after concluding that "Ms. Wesley-Dickson did not possess the skills and attributes that are necessary for the highly demanding, detail oriented position of Supervisor of Special Education." (Bryant Aff. ¶ 8.) When the plaintiff asked for a written statement of reasons for Superintendent Bryant's decision, Bryant provided a detailed written response. (Bryant Aff. Ex. C.)
In his response, Superintendent Bryant cited continued concerns about the accuracy of the plaintiff's written work product and her lack of attention to details, noting that the plaintiff's "inadequate writing skills have been a persistent problem since [she] began with the District, and [her] failure to improve those skills has been repeatedly identified to [her] without marked improvement." (Bryant Aff. Ex. C.) Superintendent Bryant's response concluded:
(Bryant Aff. Ex. C.)
On April 26, 2010, the Board voted not to award the plaintiff tenure. (2d Am. Compl. ¶ 105.) On May 31, 2010, the plaintiff's probationary employment with the School District ended by operation of the Education Law. (56.1 Stmts. ¶ 72.
The plaintiff brings claims against the defendants
The plaintiff brings claims of racial discrimination pursuant to Title VII, Section 1981, and the NYSHRL. Racial discrimination claims brought pursuant to Title VII, Section 1981, and the NYSHRL are governed at the summary judgment stage by the burden-shifting analysis established for Title VII claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir.2005) (noting that the burden-shifting Title VII analysis also applies to discrimination claims under the NYSHRL); McLee v. Chrysler Corp., 109 F.3d 130, 134-35 (2d Cir.1997) (applying the burden-shifting Title VII analysis to a Section 1981 claim).
To establish a prima facie case of discrimination under Title VII, a plaintiff must demonstrate: (1) that the plaintiff is a member of a protected class; (2) that the plaintiff was qualified for the job; (3) that the plaintiff suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
If the plaintiff meets the minimal burden of establishing a prima facie case, the burden of production then shifts to the defendant to offer a legitimate, non-discriminatory rationale for the adverse employment action. See McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817; see also Hicks, 509 U.S. at 506-07, 113 S.Ct. 2742; Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089. If the defendant articulates a legitimate reason for the action, the presumption of discrimination raised by the prima facie case drops out, and the plaintiff has the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision and that the plaintiff's membership in a protected class was. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817; see also Hicks, 509 U.S. at 507-08, 113 S.Ct. 2742; Burdine, 450 U.S. at 255-56, 101 S.Ct. 1089.
For a racial discrimination claim under Title VII, a plaintiff must demonstrate that race was at least "a motivating factor" for the adverse employment action. See Desert Palace, Inc. v. Costa, 539 U.S. 90,
For purposes of this motion, the defendants concede that the plaintiff satisfies the first two elements of a prima facie case of racial discrimination: the plaintiff is African-American and thus a member of a protected class, and the plaintiff was qualified for her position at the time she was hired.
As for the third element, the defendants concede that the plaintiff suffered an adverse employment action in 2010, when the plaintiff was denied tenure and her probationary employment ended. (Defs.' Mem. Supp. Mot. Summ. J. at 13.) Nevertheless, the defendants argue that the plaintiff has not satisfied the fourth element, namely, that the adverse employment action occurred under circumstances giving rise to an inference of racial discrimination.
With respect to the 2010 decision not to award the plaintiff tenure, there is no evidence that this decision occurred under circumstances giving rise to an inference of racial discrimination. The decisionmakers were Superintendent Bryant and the Board, but there are no allegations of any racial hostility or racially discriminatory comments made by them.
The plaintiff also contends that Dr. Reinhard, Ms. Carmody, and Ms. Fox "all had substantial influence over the decision not to grant Plaintiff tenure." (Pl.'s Letter to the Court dated July 26, 2013, at 2.) However, there is no evidence in the record to support this contention with respect to Dr. Reinhard, and Ms. Carmody and Ms. Fox simply submitted performance evaluations for the plaintiff.
Even if Dr. Reinhard, Ms. Carmody, and Ms. Fox had any influence over the 2010 decision, there is still no evidence that the decision occurred under circumstances giving rise to an inference of racial discrimination. The plaintiff alleges that Dr. Reinhard and Ms. Fox — but not Ms. Carmody — made some purportedly discriminatory comments on the basis of race. The plaintiff alleges that, in September 2007, Dr. Reinhard said the plaintiff sounded "just like Aunt Jemima" and "sound[ed] like [she] was down on the plantation" (2d Am. Compl. ¶ 36), and that Ms. Fox told the plaintiff the night before a mandatory diversity conference that she felt the leaders, who were African-American, were a waste of her time and had no validity for her. (Wesley-Dickson Dep. at 21-23.)
In determining whether a remark is probative of discriminatory intent, courts in the Second Circuit have considered four factors:
Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir.2010) (collecting cases).
With respect to Dr. Reinhard's alleged comments, Dr. Reinhard was the Assistant Superintendent at the time, but she was not the plaintiff's supervisor and there is no evidence that she had any input into the decision as to whether the plaintiff would receive tenure. Dr. Reinhard's alleged comments were made in September 2007, whereas the decision not to award the plaintiff tenure was made in April 2010, more than two years later. Although a reasonable juror could view Dr. Reinhard's alleged comments as racially discriminatory, there is no evidence that the comments were related to the decisionmaking process. In light of these factors, Dr. Reinhard's alleged comments do not constitute sufficient evidence to support a case of racial discrimination. See, e.g., Hawana v. City of New York, 230 F.Supp.2d 518, 527 (S.D.N.Y.2002) (holding that a single "stray remark" did not satisfy the fourth prong of a prima facie case); Campbell v. Alliance Nat'l Inc., 107 F.Supp.2d 234, 247 (S.D.N.Y.2000) ("Stray remarks by non-decision-makers or by decision-makers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote [from] the date of the decision.") (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir.1992)).
With respect to Ms. Fox's alleged comment, Ms. Fox was the plaintiff's supervisor and submitted performance evaluations for the plaintiff, but she was not one of the ultimate decisionmakers for the 2010 decision. It is unclear from the record when exactly the alleged comment of Ms. Fox expressing impatience with attendance of a diversity conference was made. Nonetheless, the content of Ms. Fox's alleged comment was neutral — a reasonable juror could not view the comment as racially discriminatory when the comment simply evinces annoyance for having to attend a mandatory conference. Additionally, there is no evidence that Ms. Fox's alleged comment was related to the decisionmaking process. In light of these factors, Ms. Fox's alleged comment does not constitute sufficient evidence to support an inference of discrimination. See, e.g., Hawana, 230 F.Supp.2d at 527; Campbell, 107 F.Supp.2d at 247.
The plaintiff also contends that she suffered another adverse employment action in 2008, when she was not recommended for tenure but had her probationary employment extended, and the defendants dispute this contention. However, it is unnecessary to reach the issue of whether the 2008 decision constitutes an adverse employment action for purposes of the third element of a prima facie case, because the plaintiff cannot satisfy the fourth element of a prima facie case of racial discrimination with respect to this decision.
The 2008 decision not to recommend the plaintiff for tenure was made by Superintendent Greenhall. The plaintiff contends that Dr. Reinhard was also part of the decisionmaking process with respect to the 2008 decision, (Pl.'s Letter to the Court dated July 26, 2013, at 3), but there is no evidence in the record of any input by Dr. Reinhard into that process. Dr. Reinhard was not the plaintiff's supervisor and did not write any performance reviews.
In sum, the plaintiff only points to a few purportedly discriminatory comments allegedly made by Dr. Reinhard and Ms. Fox unrelated to the alleged adverse employment decisions, which are insufficient to raise an inference that the decisions about which the plaintiff complains were motivated by racial discrimination. Because the plaintiff has not shown that either the 2010 decision or the 2008 decision occurred under circumstances giving rise to an inference of racial discrimination, the plaintiff has not met her burden of establishing a prima facie case of racial discrimination.
In any event, the defendants have offered a legitimate, non-discriminatory reason for deciding not to award the plaintiff tenure in 2008 and in 2010, and the plaintiff has not demonstrated that this proffered reason was a pretext for a discriminatory motive on the basis of race. The reason offered by the defendants was the plaintiff's history of performance problems during her period of probationary employment, especially with respect to her writing skills and attention to detail. (Bryant Aff. ¶¶ 8-9, Ex. C.)
It is plain that the plaintiff had a history of performance problems by the time of both the 2008 and the 2010 decisions. During the 2005-2006 school year, Ms. Cosgrove counseled the plaintiff, both orally and in writing, about aspects of the plaintiff's performance that needed improvement, such as timeliness and writing skills, and noted those problems in her evaluation of the plaintiff. The plaintiff has not alleged that Ms. Cosgrove discriminated against the plaintiff. While supervising the plaintiff during the 2006-2007 school year, Ms. Carmody shared many of the same concerns that Ms. Cosgrove had with respect to the plaintiff's ability to perform her job competently. In her professional evaluation, Ms. Carmody noted the plaintiff's poor organizational skills and
Even after the 2008 decision, the plaintiff's superiors continued to receive complaints about the plaintiff and noted deficiencies in her performance. Ms. Fox issued additional memoranda to the plaintiff about these complaints and deficiencies, and Superintendent Greenhall issued the plaintiff letters of counsel concerning, among other things, lateness for meetings, insubordination, and a complaint from the District Transportation Department. (Fox Aff. ¶¶ 13-15; Bryant Aff. ¶ 13.) Ms. Fox also issued the plaintiff a letter of counsel concerning the plaintiff's alleged abusive treatment towards the support staff, and later completed a negative evaluation for the plaintiff. (Fox Aff. ¶ 16, Ex. R.) In February 2010, Mr. Kolesar wrote a performance evaluation for the plaintiff, in which he noted some concerns associated with the plaintiff's work performance that were similar to concerns noted in the plaintiff's prior performance evaluations. (Kolesar Aff. ¶ 6, Ex. C.) There is no allegation that Mr. Kolesar made any discriminatory remarks or that he was involved in any of the prior events relating to the plaintiff, but he also noted the plaintiff's deficiencies.
In arguing that this proffered reason was a pretext for a discriminatory motive on the basis of race, the plaintiff only points to the comments allegedly made by Dr. Reinhard and Ms. Fox. The plaintiff worked at the School District for approximately five years, but only points to a few purportedly discriminatory comments allegedly made by two separate people — Dr. Reinhard, who had no input into the decision-making process, and Ms. Fox, whose alleged comment was benign. These comments are insufficient to overcome the defendant's proffer of a non-discriminatory reason for their actions — namely, the plaintiff's poor performance. The defendants' evidence includes complaints and evaluations about the plaintiff's performance from people whom the plaintiff has not accused of discrimination. No reasonable juror could conclude, on the basis of the evidence, that the plaintiff's poor performance was a pretext for racial discrimination or that race was a motivating factor in the adverse actions taken against the plaintiff. Campbell, 107 F.Supp.2d at 247; see also Burrell v. Bentsen, No. 91 Civ. 2654, 1993 WL 535076, at *8 (S.D.N.Y. Dec. 21, 1993) ("[S]tray remarks in the workplace, statements by non-decisionmakers, and statements by decisionmakers unrelated to the decisional process are not by themselves sufficient to satisfy plaintiff's burden of proving pretext.") (internal quotation marks and citation omitted), aff'd, 50 F.3d 3 (2d Cir.1995) (unreported table decision).
Here, the plaintiff has not only failed to establish a prima facie case of racial discrimination, but also failed to demonstrate that the defendants' proffered non-discriminatory reason for deciding not to award her tenure was a pretext for a discriminatory motive on the basis of race. In the absence of sufficient evidence of racial discrimination and in the face of the strong non-discriminatory reason proffered by the defendants, no reasonable juror could find that discriminatory animus on the basis of race was a motivating factor in any adverse
The plaintiff brings claims of disability discrimination
To establish a prima facie case of disability discrimination under these statutes, the plaintiff must demonstrate: (1) that her employer is subject to the statute; (2) that she is disabled within the meaning of the statute or is perceived to be so by her employer; (3) that she was otherwise qualified to perform the essential functions of her job with or without reasonable accommodation; and (4) that she suffered an adverse employment action because of her disability. See Brady v. Wal-Mart Stores, 531 F.3d 127, 134 (2d Cir.2008).
The remaining steps of the burden-shifting analysis for disability discrimination claims are the same as those for Title VII claims. See McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817; see also Hicks, 509 U.S. at 506-08, 113 S.Ct. 2742; Burdine, 450 U.S. at 254-56, 101 S.Ct. 1089. For a disability discrimination claim under the ADA, a plaintiff must demonstrate that her disability was at least "a motivating factor" for the adverse employment action. See Parker v. Columbia Pictures Indus., 204 F.3d 326, 336-37 (2d Cir.2000) (holding that "the mixed-motive analysis available in the Title VII context applies equally to cases brought under the ADA");
For purposes of this motion, the defendants concede that the plaintiff, who was diagnosed with cancer, was "disabled" as defined by the ADA and the NYSHRL, and that the plaintiff was qualified for her position at the time she was hired. (Defs.' Mem. Supp. Mot. Summ. J. at 11.) The defendants also concede that the plaintiff suffered an adverse employment action in 2010, when the plaintiff was denied tenure and her probationary employment ended. (Defs.' Mem. Supp. Mot. Summ. J. at 13.) Nevertheless, the defendants argue that the plaintiff has not satisfied the fourth element of a prima facie case of disability discrimination: that the plaintiff suffered this adverse employment action because of her disability.
With respect to the 2010 decision not to award the plaintiff tenure, there is no evidence that this decision occurred under circumstances giving rise to an inference of disability discrimination. The decisionmakers were Superintendent Bryant and the Board, and there is no evidence that they were motivated by any discriminatory intent against the plaintiff because of her disability. There are, for example, no allegations that they made any discriminatory comments relating to a disability.
Even if Dr. Reinhard, Ms. Carmody, and Ms. Fox had any influence over the 2010 decision, as the plaintiff contends, there is still no evidence that the decision occurred under circumstances giving rise to an inference of disability discrimination. The plaintiff alleges that only Ms. Carmody made a purportedly discriminatory comment on the basis of disability. When the plaintiff told Ms. Carmody in around December 2006 that she needed to take absences for chemotherapy, Ms. Carmody allegedly stated that she had a colleague on chemotherapy who came to work very unkempt at times and was unable to remember anything. (Wesley-Dickson Dep. at 86-90.)
In determining whether Ms. Carmody's alleged comment is probative of discriminatory intent, the Court considers the factors explained in Henry, 616 F.3d at 149. Here, Ms. Carmody was the plaintiff's supervisor and submitted an evaluation for the plaintiff, but she was not one of the ultimate decisionmakers for the 2010 decision. Ms. Carmody's alleged comment was made in around December 2006, whereas the decision not to award the plaintiff tenure was made in April 2010, more than three years later. Ms. Carmody had ceased to be the plaintiff's supervisor, and the plaintiff was subsequently supervised by Ms. Fox and Mr. Kolesar, who both provided negative evaluations of the plaintiff but as to whom there is no evidence of discrimination based on disability. Although a reasonable juror could view Ms. Carmody's alleged comment as discriminatory, there is no evidence that the comment was related to the decisionmaking process. In light of these factors, Ms. Carmody's alleged comment is insufficient to create an inference of disability discrimination. See, e.g., Hawana, 230 F.Supp.2d at 527; Campbell, 107 F.Supp.2d at 247.
The plaintiff also contends that she suffered another adverse employment action in 2008, when she was not recommended
The 2008 decision not to recommend the plaintiff for tenure was made by Superintendent Greenhall. In March 2008, Superintendent Greenhall informed the plaintiff that he would not recommend to the Board that she be awarded tenure, but offered her an additional year of probationary employment. (2d Am. Compl. ¶¶ 65, 68.) The plaintiff alleges that Superintendent Greenhall initially said to the plaintiff that this potential arrangement had nothing to do with her health, but that later in the conversation he inquired into her health and a couple days later asked her how her chemotherapy treatments were going. (Wesley-Dickson Dep. at 101.)
Superintendent Greenhall's alleged inquiries are not probative of any discriminatory intent. While Superintendent Greenhall was the decisionmaker for the 2008 decision not to recommend the plaintiff for tenure,
In sum, the plaintiff only points to a couple of purportedly discriminatory comments allegedly made by Ms. Carmody and Superintendent Greenhall that do not constitute sufficient evidence to support an inference of disability discrimination. Because the plaintiff has not shown that disability discrimination was a motivating factor in either the 2010 decision or the 2008 decision, the plaintiff has not met her burden of establishing a prima facie case of disability discrimination.
Moreover, the defendants have offered a legitimate, nondiscriminatory reason for deciding not to award the plaintiff tenure, and the plaintiff has not demonstrated that this proffered reason was a pretext for a discriminatory motive on the basis of disability. The reason offered by the defendants was the plaintiff's history of performance problems during her period of probationary employment, especially with respect to her writing skills and attention to detail. As explained above, the plaintiff had a history of performance problems by the time of both decisions, which supports the defendants' proffered reason for deciding not to award her tenure.
In arguing that this proffered reason was a pretext for a discriminatory motive on the basis of disability, the plaintiff only points to the comments allegedly made by
Here, the plaintiff has not only failed to establish a prima facie case of disability discrimination, but also failed to demonstrate that the defendants' proffered non-discriminatory reason for deciding not to award her tenure was a pretext for a discriminatory motive on the basis of disability. In the absence of sufficient evidence of disability discrimination and in the face of the strong non-discriminatory reason proffered by the defendants, no reasonable juror could find that discriminatory animus on the basis of disability was a motivating factor in any adverse action taken against the plaintiff. See Hawana, 230 F.Supp.2d at 529. Therefore, the plaintiff's claims of disability discrimination must be dismissed.
The plaintiff brings claims of hostile work environment pursuant to Title VII and Section 1981.
To establish a prima facie case of hostile work environment, a plaintiff must show: (1) discriminatory harassment that was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," and (2) a specific basis exists for imputing the objectionable conduct to the employer. Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.1997) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)) (internal quotation marks omitted). The plaintiff must show not only that the plaintiff subjectively perceived the environment
The first element of the prima facie case must be established by a showing that "the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of [the plaintiff's] employment were thereby altered." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.2002) (citation omitted). "Isolated incidents typically do not rise to the level of a hostile work environment unless they are `of sufficient severity' to `alter the terms and conditions of employment as to create such an environment.'" Demoret, 451 F.3d at 149 (quoting Patterson v. Cnty. of Oneida, 375 F.3d 206, 227 (2d Cir.2004)). Generally, "incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." Id. (quoting Alfano, 294 F.3d at 374) (internal quotation marks omitted).
In analyzing a hostile work environment claim, courts assess the totality of the circumstances, "considering a variety of factors including `the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Id. (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). Finally, although the Second Circuit Court of Appeals has cautioned that hostile work environment claims are "especially well-suited for jury determination," Schiano, 445 F.3d at 605 (internal quotation marks and citation omitted), "[i]t is axiomatic that mistreatment at work ... is actionable under Title VII only when it occurs because of an employee's ... protected characteristic," Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001).
In this case, the plaintiff alleges that two discriminatory comments regarding her race were made. Specifically, the plaintiff alleges that Dr. Reinhard said the plaintiff sounded "just like Aunt Jemima" and "sound[ed] like [she] was down on the plantation." (2d Am. Compl. ¶ 36.) The plaintiff also alleges that Ms. Fox told the plaintiff the night before a mandatory diversity conference that she felt the leaders, who were African-American, were a waste of her time and had no validity for her. (Wesley-Dickson Dep. at 21-23.)
The plaintiff highlights various items that made her work life unpleasant, including her poor relations with her supervisors and the negative feedback about her job performance, but there is nothing linking those items to racial hostility. Although the plaintiff worked at the School District for approximately five years, she points to very few purportedly discriminatory comments and certainly not an environment that was severely permeated with racial discrimination. Neither of these alleged isolated incidents was of sufficient severity to alter the plaintiff's terms and conditions of employment and create an abusive work environment on the basis of racial discrimination. No reasonable jury could find that the plaintiff was subjected to a racially hostile work environment. See, e.g., Dabney v. Christmas Tree Shops, 958 F.Supp.2d 439, 459, No. 10 Civ. 8734, 2013 WL 3820668, at *12 (S.D.N.Y. July 24, 2013); Risco v. McHugh, 868 F.Supp.2d 75, 117 (S.D.N.Y.2012); Davis-Bell v. Columbia Univ., 851 F.Supp.2d 650, 670-74 (S.D.N.Y.2012), appeal dismissed (Aug. 14, 2012); Dorrilus v. St. Rose's Home, 234 F.Supp.2d 326, 334-35 (S.D.N.Y.2002).
In addition, the plaintiff alleges that two discriminatory comments regarding her disability were made. The plaintiff alleges that when she told Ms. Carmody that she needed to take absences for chemotherapy, Ms. Carmody stated that she had a colleague on chemotherapy who came to work very unkempt at times and was unable to remember anything. (Wesley-Dickson Dep. at 86-90.) Dr. Greenhall also inquired about the plaintiff's health and how her chemotherapy treatments were going. (Wesley-Dickson Dep. at 101.)
These allegedly discriminatory comments certainly do not create an environment that was severely permeated with disability discrimination. These isolated incidents were not of sufficient severity to alter the plaintiff's terms and conditions of employment and create an abusive work environment on the basis of disability discrimination. See, e.g., Forgione, 2012 WL 4049832, at *7 (dismissing employee's hostile work environment claims under the ADA and the NYSHRL, despite his allegations that his supervisor made several offensive quips about his perceived disability).
The plaintiff also points to alleged unpleasant work experiences, but there is nothing about those alleged experiences that is linked to the plaintiff's disabilities. In fact, the plaintiff concedes that a number of accommodations were granted in light of her disability: she was afforded a medical leave of absence, provided with a different office and a different supervisor upon request, and was given an elevator pass. (Tr. of Oral Argument held on July 23, 2013, at 22-25.)
In this case, no reasonable jury could find that the plaintiff experienced a hostile work environment on the basis of either race or disability. Therefore, the plaintiff's claims of hostile work environment must be dismissed.
The plaintiff brings claims of retaliation pursuant to Title VII, Section 1981, and the NYSHRL.
The anti-retaliation provisions in Title VII, the ADA, and the NYSHRL all contain nearly identical language and are governed by the same burden-shifting analysis. See Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999) (noting that "it is appropriate to apply the framework used in analyzing retaliation claims under Title VII in analyzing a claim of retaliation under the ADA"); Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C., 716 F.3d 10,
Under the McDonnell Douglas framework, the plaintiff carries the initial burden of establishing a prima facie case of retaliation. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. "To establish a prima facie case of retaliation, [the plaintiff] must show that (1) she was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action." Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir.2012) (citations omitted). If the plaintiff meets this initial burden, the defendant must point to evidence of a legitimate, non-retaliatory reason for the challenged action. See Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir.2001). If the defendant meets its burden, then "the plaintiff must point to evidence that would be sufficient to permit a rational factfinder to conclude that the employer's explanation is merely a pretext for impermissible retaliation." Id.
The defendants concede that the plaintiff engaged in protected activity when she filed a complaint with the Orange County Human Rights Commission on May 21, 2008, alleging racial discrimination and disability discrimination. (Defs.' Mem. Supp. Mot. Summ. J. at 24.) This protected activity occurred after Superintendent Greenhall decided not to recommend her for tenure in March 2008. The School District became aware of the plaintiff's protected activity on May 29, 2008, when it received by mail a copy of the filed complaint. The subsequent adverse action occurred in April 2010, when the Board voted not to award the plaintiff tenure.
The defendants contend that there is no evidence of any causal relation between the denial of tenure in April 2010, and the plaintiff's complaint of discrimination, which the District received in May 2008. There is no direct evidence of retaliation. There are, for example, no statements or documents that reflect or suggest that there was a causal relationship between the tenure decision and the prior complaint of discrimination.
Even without direct evidence of causation, "a plaintiff can indirectly establish a causal connection to support a ... retaliation claim by showing that the protected activity was closely followed in time by the adverse [employment] action." Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001) (internal quotation marks and citation omitted); see also Summa v. Hofstra Univ., 708 F.3d 115, 127-28 (2d Cir.2013); Cifra, 252 F.3d at 217. The Supreme Court recently held that "Title VII retaliation claims must be proved according to traditional principles of but-for causation," which "requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." Nassar, 133 S.Ct. at 2533. However, the but-for causation standard does not alter the plaintiff's ability to demonstrate causation at the prima facie stage on summary judgment or at trial indirectly through temporal proximity.
In this case, the only plausible adverse action subsequent to the plaintiff's protected activity and thus relevant for her retaliation
In any event, the defendants have offered a legitimate, non-retaliatory reason for deciding not to award the plaintiff tenure, and the plaintiff has not demonstrated that this proffered reason was a pretext for impermissible retaliation. The reason offered by the defendants was the plaintiff's history of performance problems during her period of probationary employment, especially with respect to her writing skills and attention to detail. (Bryant Aff. ¶¶ 8-9, Ex. C.) As previously discussed, it is plain that the plaintiff had a history of performance problems by the time of the 2010 decision, which lends support to the defendants' proffered reason for deciding not to award her tenure.
Here, the plaintiff has not only failed to establish a prima facie case of retaliation, but also failed to demonstrate that the defendants' proffered non-retaliatory reason for deciding not to award her tenure was a pretext for impermissible retaliation. Therefore, the plaintiff's claims of retaliation must be dismissed.
Pursuant to Section 1983, the plaintiff alleges violations of her Fourteenth Amendment right to equal protection, as a result of the alleged racial discrimination, hostile work environment, and retaliation.
In order to state a claim under Section 1983, a plaintiff must allege a violation of a right secured by the Constitution or laws
The plaintiff alleges that her constitutional right to equal protection was violated as a result of the alleged racial discrimination, hostile work environment, and retaliation. "[Section] 1983 and the Equal Protection Clause protect public employees from various forms of discrimination, including hostile work environment and disparate treatment...." Demoret, 451 F.3d at 149.
The Second Circuit Court of Appeals applies the Title VII burden-shifting analysis in determining whether conduct was unlawfully discriminatory under Section 1983. See Annis v. Cnty. of Westchester, 136 F.3d 239, 245 (2d Cir.1998) (citing Hicks, 509 U.S. at 506 n. 1, 113 S.Ct. 2742 (assuming that the same burden-shifting analysis applies to both Section 1983 and Title VII claims of discrimination)). Thus, where a plaintiff's Section 1983 claim parallels her Title VII claim, "[t]he elements of one are generally the same as the elements of the other and the two must stand or fall together." Feingold, 366 F.3d at 159 (citations omitted).
As previously explained, the plaintiff's claims concerning racial discrimination, hostile work environment, and retaliation must be dismissed. Because the plaintiff's Section 1983 claim parallels these claims, her Section 1983 claim must also be dismissed.
Additionally, the defendants argue that all of the plaintiff's claims against the District under the NYSHRL must be dismissed as a matter of law because the plaintiff failed to file a notice of claim with the District in compliance with the requirements of New York State Education Law § 3813.
The defendants point out that the plaintiff never served a verified notice of claim upon the School District's Board, either directly or through its clerk, and the plaintiff does not argue that she did so. Instead, the plaintiff argues that the act of filing a complaint with the Orange County Human Rights Commission complies with Education Law § 3813 because it was
In this case, the plaintiff filed a complaint with the Orange County Commission of Human Rights, but she did not serve a verified notice of claim upon the School District's Board, either directly or through its clerk. Because the plaintiff did not serve a verified notice of claim upon the requisite entity, the plaintiff has failed to comply with Education Law § 3813. See Amorosi, 849 N.Y.S.2d 485, 880 N.E.2d at 8. Accordingly, the plaintiff's claims against the District under the NYSHRL should be dismissed on that ground as well.
It is undoubtedly true that the plaintiff has a sympathetic case in view of her unquestioned medical disability. On the other hand, the District granted the plaintiff a leave of absence and accommodated her wishes by transferring her and providing her with a new supervisor after she returned from her medical leave. Ultimately, the District was faced with the significant long-term decision, that is, whether to grant the plaintiff tenure despite her documented history of performance problems. Under all the circumstances, no reasonable jury could find that the denial of tenure, as well as the other actions about which the plaintiff complains, were tainted by discrimination or retaliation.
The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the foregoing reasons, the defendants' motion for summary judgment is
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000) (internal citations omitted). While Galabya was decided under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., the Court of Appeals noted that the standard was the same under Title VII. Galabya, 202 F.3d at 640 n. 2; Patrolmen's Benevolent Ass'n. of City of New York v. City of New York, 310 F.3d 43, 51 (2d Cir.2002) (applying Galabya's definition of adverse employment action in a Title VII claim); La Grande v. DeCrescente Distrib. Co., Inc., 370 Fed.Appx. 206, 211 (2d Cir.2010) (summary order) (same).
Tort claims against a school district are excepted from the notice requirements and must comply with the notice requirements in New York General Municipal Law § 50-e. See N.Y. Educ. Law § 3813(2).
