Opinion
98 Civ. 04725 (GBD).
December 6, 2002
MEMORANDUM OPINION ORDER
Plaintiff, a special education teacher in the New York City public school system, brought suit against defendants alleging unlawful discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e et. seq., as well as disability discrimination under the Americans with Disability Act ("ADA"), 42 U.S.C. § 12101 et. seq. Defendants now move this Court for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is granted.
I. Background
Plaintiff, an African-American female, was hired by the New York City Board of Education in 1976, and has been working in various positions in the New York City public school system since that time. She is a licensed, tenured teacher, whose training is in the field of special education. From 1987 to 1998 she worked at Bayside High School as a special education teacher.
Plaintiff was diagnosed with cervical cancer sometime between 1993 and 1994. In early 1994, she went on a medical sabbatical leave due to treatment for cancer. She returned to work in April 1994. Plaintiff was given a medical examination by the Medical Bureau in 1994 upon her return, and again in December 1996. On both occasions she was declared fit for full duty. Since her return from sabbatical, plaintiff has been employed by defendants full time.
From 1987 to 1998, three successive school principals placed a number of unsatisfactory reviews in plaintiff's school file. These reviews related to her violations of the time card policy, tardiness to class, leaving class unsupervised, unprofessional behavior, and disregard of school policies. Plaintiff alleges that these negative reviews were undeserved. She also alleges five separate instances of racial comments made to her by faculty members over the eleven year period that she was employed at Bayside. Plaintiff filed an EEOC grievance in February 1996 alleging race, religion, national origin, and disability discrimination.
In 1997, plaintiff applied for thirteen "comp-time" positions. Under these positions, a teacher is released from part of her teaching duties, but receives no additional pay. She was denied each of the thirteen positions. Plaintiff alleges that she was discriminated and/or retaliated against as these positions were given to white or Jewish teachers.
Plaintiff was granted one "comp time" position in 1993, but was later removed from that position in the same year. Defendants claim that she was removed due to her unsatisfactory evaluations. Plaintiff's Complaint, however, solely alleges discrimination and retaliation with reference to the 1997 "comp time" positions, and not the 1993 position.
In September 1998, plaintiff was transferred from her teaching position at Bayside to Flushing High School, then to Queens Vocational High School, and finally to Grover Cleveland High School, where she currently is employed in the school library.
II. Discussion
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to any material fact . . . ." FED. R. CIV. P. 56(c). The burden is on the moving party to demonstrate that no genuine factual dispute exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Tri-State Employment Serv., Inc. v. The Mountbatten Surety Co., Inc., 295 F.3d 256, 260 (2d Cir. 2002) (internal quotation marks omitted), quoting Lazard Freres Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1535 (2d Cir. 1997).
In evaluating a summary judgment motion, a court will resolve all factual disputes in favor of the non-moving party. See Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, Inc., 182 F.3d 157, 160 (2d Cir. 1999). If there is evidence from which a reasonable inference could be drawn in favor of the non-movant, then summary judgment is not appropriate. See Tri-State Employment Serv., 295 F.3d at 260. However, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (emphasis in original), quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Although "we draw all reasonable inferences in favor the non-moving party on a motion for summary judgment, we do not permit an issue to go to trial on the basis of mere speculation in favor of the party that bears the burden of proof." Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 144 (2d Cir. 1999).
A. Plaintiff's Title VII Discrimination Claim
Title VII makes it unlawful for an employer to:
fail or refuse to hire . . . any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges or employment, because of such individual's race, color, religion, sex, or national origin[.]42 U.S.C. § 2000e-2(a) (2002). A plaintiff must first establish a prima facie case of discrimination. See Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000), citing Texas Dep't of Comty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To establish a prima facie case, a plaintiff must show:
(1) that [she] belongs to a protected class, (2) that [she] was qualified for the position, (3) that [she] was denied the position, and (4) that the denial occurred in circumstances giving rise to an inference of discrimination on the basis of [her] membership in that class.
Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997).
Plaintiff's discrimination claim rests on her allegations that her supervisors gave her negative performance evaluations out of racial and/or religious animus, and that based upon these negative reviews, defendants denied her the thirteen "comp-time" positions she applied for in 1997. Plaintiff is African-American, as well as Christian. Thus, on both basis, she is a member of a protected class. She also meets the third prong of the prima facie case, in that she was denied all thirteen of the positions that she sought in 1997. Defendants argue that plaintiff was not qualified for any of the positions under prong two. This Court need not address that question, since plaintiff's claim fails under the fourth prong. Plaintiff has not shown that the denial of any of the thirteen positions occurred under circumstances giving rise to an inference of race and/or religious discrimination. "A plaintiff may support an inference of race discrimination by demonstrating that similarly situated employees of a different race were treated more favorably." Norville v. Staten Isl. Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999). Individuals with whom a plaintiff compares herself to must be "similarly situated in all material respects." Id., quoting Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). Other circumstances that can also give rise to an inference of discrimination are criticism of a plaintiff's performance in ethnically degrading terms, racial comments about other individuals in the plaintiff's same protected class, the sequence of events leading up to the adverse employment decision, and the timing of the adverse employment action. See Chambers v. TRM Copy Cntrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
In this case, selection to one of the "comp time" positions was governed by a Collective Bargaining Agreement. This Agreement provides that "[t]he teacher with the highest seniority in the school from among those who apply shall be given preference [in the selection of "comp time" positions] if not inconsistent with the needs of the school." Defendants' Exhibit Q (emphasis added). Thus, selection to one of the "comp time" positions is primarily based upon seniority, but where the administration determines seniority would lead to an inappropriate result, the administration may select based on other legitimate criteria.
Plaintiff only identifies the race and/or religion of two out of the thirteen individuals who received the "comp time" positions. The first individual she identifies is a Jewish male teacher. Yet, plaintiff readily admits that that teacher had more seniority than her. Further, she neither alleges nor provides any evidence that his performance record was unsatisfactory in any way so as to make his selection inconsistent with the needs of the school. The second individual plaintiff identifies is a white female teacher who had worked at Bayside for approximately two years. Since plaintiff had been at Bayside for ten years, plaintiff clearly had more seniority than the second teacher. However, as with the Jewish male teacher, plaintiff neither relies upon nor provides any evidence as to the teaching record of the white female teacher so as to demonstrate that the selection of that second teacher was also somehow inconsistent with the needs of the school. Furthermore, plaintiff neither identifies any of the eleven other individuals who received "comp time" positions, nor argues that they were members of a different race or religion and were treated more favorably.
It is not enough to merely show that an individual of a different race or religion received the position plaintiff also applied for. Rather, plaintiff must show that the other individual received the position and it was under circumstances evincing a discriminatory motive. Since plaintiff's file contained negative performance evaluations and reviews, and since she offers no evidence whatsoever on the performance records of the two teachers she identifies, her allegations regarding her unsuccessful applications to the "comp time" positions fall short of the evidence necessary to raise an inference of race and/or religious discrimination. This is especially true in light of the fact that plaintiff does not rely upon or even offer any evidence as to the race, religion, seniority, or teaching records of the remaining eleven individuals who received the other "comp time" positions that year.
Plaintiff claims that she was discriminated against with respect to her negative performance reviews. Her allegations rest on an assumption that white and Jewish teachers never received negative reviews. Plaintiff testified as follows at her deposition:
I am not saying any whites or people who were Jewish deserve any negative write-ups. Okay.
I am not willing to come out and say that because that is not my place.
I am saying that they did not receive them and I did. There has to be something wrong if you have 150 people on the faculty but you can only single out one person for all of these negative write-ups. Something has to be wrong.
Well, 149 people can not be perfect. There has to be something that they would have done that would have been some kind of mishap or erroneous wrongdoing. However, I am the one who was singled out.
Thompson Dep., Deft's Exh. HH.
Defendants have proffered evidence, however, that white and Jewish teachers, as well, received negative reviews. Since 1995, eleven teachers other than plaintiff also received negative evaluations in their files. Ten of those teachers were white and one was African-American. Of the white teachers, seven were Jewish. Sarney Aff. ¶ 44. This evidence belies any inference that plaintiff was given negative performance evaluations because she is African-American and/or Christian.
With respect to her absenteeism and tardiness to class, plaintiff argues that her poor health was the cause. Even assuming this reason to be true, it does not address the appropriate inquiry in a Title VII action. Plaintiff must allege sufficient evidence showing that other similarly situated individuals of a different race or religion were treated in a better fashion, or that there was something unique about the documentation of her attendance record so as to create an inference of discrimination on the basis of race and/or religion. This she has not done.
Plaintiff's medical condition will be addressed more fully in the section relating to her ADA discrimination claim.
Further, plaintiff admits that she violated the time card policy on fourteen different occasions. However, she contends that a Jewish assistant principal, also on occasion, failed to move his time card to the "in" side but was never given a disciplinary letter for this conduct. Defendants have proffered evidence, however, showing that that assistant principal had, in fact, been issued an unsatisfactory job performance rating in 1995. Sarney Reply Aff. ¶ 4.
Lastly, plaintiff alleges that racial comments were made to her on a handful of occasions over an eleven year period while she was at Bayside. She cites these incidents as support for her argument that her unsatisfactory performance record and the administration's refusal to award her a "comp time" position were the product of racial discrimination. The timing of racial comments with respect to an adverse employment decision may give rise to an inference of discrimination. See e.g., Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1038 (2d Cir. 1979) (finding that the nature and timing of a cooperative apartment building's rejection of a plaintiff's application permitted an inference of a racially discriminatory motive under the Fair Housing Act).
Plaintiff contends, without identifying the time frame, that after two colleagues saw a Jamaican doll on her desk, they referred to it as a voodoo doll and that some of her white colleagues believed that she practiced voodoo. Plaintiff also claims that the current principal, at some point after 1995, accused her of putting a voodoo curse on him. Plaintiff also alleges, without identifying the time frame, that an unidentified administrator told her that she should not be concerned about the number of minority students who had disciplinary files because she (plaintiff) did not have a dark complexion. Plaintiff further alleges that at some time before 1992, certain unidentified faculty members made jokes about her speaking Spanish. Lastly, plaintiff alleges that, at some time prior to 1995, a former principal told her to take down a Malcolm X poster because Malcolm X was "a bad Negro, who hated Whites." Thompson Aff. ¶¶ 10-17.
However, here, there is nothing particularly telling about the timing of the comments. There does not appear to be a nexus in time between any one particular set of comments and a subsequent unsatisfactory evaluation or unsuccessful "comp time" application. Plaintiff does not demonstrate any relationship between the specified racial incidents and her negative evaluations, or the decision to deny her a "comp time" position. She has not raised an inference that those comments represent anything more than a handful of isolated incidents, spread over an eleven year period, that are unconnected to the adverse employment decisions about which she is complaining.
Plaintiff is not alleging that any of the comments, either individually or together, created a hostile work environment. However, even if she was, she would have to show that the comments and insult were sufficiently severe or pervasive so as to alter her employment conditions and create an abusive work environment. See Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002). Such a conclusion could not be supported by the facts asserted.
This Court, therefore, finds that plaintiff can not meet her burden of establishing a prima facie case for race, or religious discrimination, and therefore summary judgment is appropriate in favor of defendants on the Title VII discrimination claim.
Plaintiff also alleges discrimination on the basis of national original. She states that she is "from the Islands" and has "Caribbean heritage." Thompson Aff. ¶¶ 15, 17. As neither "the Islands" nor "the Carribean" are countries, plaintiff has not demonstrated that she is a member of a protected class on this basis. In any event, plaintiff puts forth no evidence implicating national origin on which to draw an inference of discrimination. This Court therefore dismisses plaintiff's Title VII national origin claim without further discussion or analysis.
B. Plaintiff's Title VII Retaliation Claim
Under Title VII, it is unlawful for an employer to
discriminate against any of his employees or applicants for employment . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge . . . under ths subchapter.42 U.S.C. § 2000e-3(a). Under the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff must make out a prima facie case of retaliation. Second, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the adverse action. If the defendant meets this burden, the plaintiff must then provide evidence sufficient to raise a fact issue as to whether the proffered reason was merely a pretext for retaliation. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768-69 (2d Cir. 1998); Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir. 1980).
To establish a prima facie case of retaliation, a plaintiff must show: 1) protected activity known to the alleged retaliator; 2) an adverse employment action; and 3) a causal connection between the protected activity and the adverse employment decision. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000); Gordon v. New York City Bd. of Educ., 232 F.3d 111, 113 (2d Cir. 2000).
Plaintiff filed an EEOC complaint on February 22, 1996. There is no doubt that filing an EEOC complaint is protected activity. See Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001). Her principal was informed of the complaint in March 1996. Therefore, plaintiff has established the first prong of the prima facie case.
Plaintiff previously filed three other EEOC Charges of discrimination in 1989, 1990, and 1993 against school officials. However, she later withdrew those charges in February 1996.
Plaintiff has also met the second prong. On March 25, 1996, the same month that the principal was informed that plaintiff had filed an EEOC grievance, an assistant principal placed a disciplinary letter in plaintiff's file noting plaintiff's violations of the time card policy during the previous two months, as well as her tardiness to class the previous month. At the end of the letter, the assistant principal warned plaintiff that failure to comply with the school's policies could result in an unsatisfactory rating for that year. Plaintiff did indeed receive an unsatisfactory rating for that year, as well as the 1997-98 year. Further, she did not receive any of the thirteen "comp time" positions in 1997, and was later transferred in 1998.
Plaintiff has also satisfied the third prong. "The causal connection needed for proof of a retaliation claim can be established indirectly by showing that the protected activity was closely followed in time by the adverse action." Cifra v. Gen'l Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001), quoting Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (internal citation marks omitted). As noted earlier, the letter from the assistant principal was placed in plaintiff's file in the same month that the principal discovered plaintiff had filed the EEOC grievance. Plaintiff's unsatisfactory ratings, denial of "comp time" positions, and transfer also followed thereafter.
Defendants now must proffer a legitimate, non-retaliatory reason for the adverse employment action. Defendants claim that the disciplinary letter of March 25, the subsequent unsatisfactory evaluations for the 1996-97 and 1997-98 school years, and the transfer two years later were deserved. As support, defendants point to plaintiff's negative performance record beginning long before the alleged retaliatory letter. Defendants claim that plaintiff had a history of violating the time card policy, tardiness to class, poor performance evaluations, and unprofessional conduct. Defendants also claim that plaintiff's history of poor evaluations was the reason she was denied the "comp time" positions in 1997, and the reason that she was ultimately transferred. This offer of proof satisfies defendants' burden of articulating a legitimate, non-retaliatory reason for the adverse employment actions.
This Court now must determine "whether the record contains evidence to support [plaintiff's] contention that [defendants'] proffered reason was merely [a] pretext for retaliation — evidence sufficient to require a trial before a trier of fact." Quinn, 159 F.3d at 770. Upon review of the record, supporting affidavits, and pleadings, this Court finds that plaintiff has failed to meet that burden. The March 25 letter detailed specific dates in the previous month that plaintiff failed to follow the time card policy. It also warned her that her tardiness to class was a problem that she needed to correct. Plaintiff admits that she did not always move her time card to the "in" slot, and that this was in violation of school policy. She further admits that she was frequently tardy to class. Plaintiff also admits in her pleadings that she had received a number of similar disciplinary letters warning her about this behavior before she filed her EEOC grievance. She has not produced enough evidence to create a genuine issue of material fact that the March 25 letter was written in retaliation for her filing the grievance.
For the same reasons, plaintiff also can not show that the unsatisfactory evaluations for 1996-97 and 1997-98 were a pretext for retaliation. An extensive history of negative evaluations and disciplinary letters had accumulated in her file long before she filed her grievance, supporting defendants' decision to give her the unsatisfactory yearly evaluations the next two years, deny her the "comp time" positions in 1997, and ultimately transfer her.
Plaintiff has failed to proffer sufficient evidence to create a genuine issue of material fact that defendants' retaliated against her. Accordingly, summary judgment is granted in favor of defendants on plaintiff's Title VII retaliation claim.
C. Plaintiff's ADA Discrimination Claim
The ADA prohibits a covered employer from discriminating against
a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.42 U.S.C. § 12112(a) (2002). Discrimination is defined as a failure to make a reasonable accommodation for the known physical disabilities of a qualified individual. See id. § 12112(b)(5)(A). A plaintiff can establish a prima facie case by showing:
1) that [she] is an individual who has a disability within the meaning of the statute, 2) that an employer covered by the statute had notice of [her] disability, 3) that with reasonable accommodation, [she] could perform the essential functions of the position sought, and 4) that the employer has refused to make such accommodations.
Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997).
Plaintiff claims that she is disabled because her previous cancer treatment requires her to take frequent restroom breaks. The parties disagree as to whether her claim of having a frequent urge to use the restroom constitutes a disability. This Court need not decide this issue, as it finds that, regardless, plaintiff can not meet prongs two and four of the prima facie case.
Under prong two, a plaintiff must show that defendants had notice of her disability. "An employee has the initial duty to inform the employer of a disability before ADA liability may be triggered for failure to provide accommodations — a duty dictated by common sense lest a disabled employee keep his disability a secret and sue later for failure to accommodate." Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996). "[A]n employer is only responsible for employment decisions based on information available to it[.]" Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 725 (2d Cir. 1994). The employer's duty to provide a reasonable accommodation, therefore, is qualified by the extent of its knowledge of the disability. See Beck, 75 F.3d at 1135.
Plaintiff claims that defendants knew of her medical condition, and that on their own initiative, they should have provided her with a paraprofessional to assist her in the classroom. Defendants claim, on the other hand, that plaintiff did not adequately communicate her alleged disability to them or her need for an accommodation. This Court agrees with defendants.
Although plaintiff went on sabbatical in early 1994 for cancer treatment, she returned to full time employment at Bayside until the time she was transferred. In fact, she was examined by the Medical Board, once upon her return from sabbatical in 1994, and again in December 1996. Both times she was declared fit for full duty. During both of these medical examinations, plaintiff failed to mention her condition to the doctor, as her medical records do not indicate any complaints of frequent usage of the restroom.
The only occasion in the record where plaintiff even mentions her health to defendants as it relates to her frequent need to use the restroom is in a conference that took place in January 1996 between the principal and plaintiff. At the conference, the principal discussed with plaintiff an incident where plaintiff left her class unsupervised for more than ten minutes. Plaintiff then told the principal that this was a result of her being "unable to control her bowels." Sarney Aff. ¶ 26. The principal then asked for medical documentation of her condition. Plaintiff refused to provide it, stating that it had been previously submitted and that the school would have to "subpoena" it if it wanted it. Id. at ¶ 29. Plaintiff offers no other proof, however, that this documentation was submitted to anyone at the school. She has annexed to her motion papers letters from doctors that discuss her medical condition. However, none appear to be addressed to any school officials, and plaintiff does not allege that these letters were provided to school officials or even made part of her school file.
The regulations to the ADA envision the search for a reasonable accommodation to be an "interactive process:"
Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability.
29 C.F.R. pt. 1630, app. (2002). The ADA contemplates that both sides will "work together to assess whether an employee's disability can be reasonably accommodated." Jackan v. New York State Dep't of Labor, 205 F.3d 562, 566 (2d Cir. 2000). Where the interactive process breaks down, a court should look for signs of good faith or bad faith, in assessing liability. See Beck, 75 F.3d at 1135. A party that obstructs the process is not acting in good faith. See id. Further, a party that fails to communicate, or withholds important information solely within the knowledge of that party, can be found to have obstructed the process in bad faith. See id. at 1136.
It is clear from the record that the interactive process broke down here. It is equally clear that the reason it broke down was plaintiff's failure to adequately inform defendants of her alleged condition. The nature of her condition was solely within her knowledge, and therefore if she needed an accommodation, it was her responsibility to provide the necessary medical documentation to defendants. By refusing to provide any requested medical documentation, she obstructed the process. Defendants were not given an opportunity to offer her a reasonable accommodation, as they were never fully informed as to the situation. Further, there is no evidence in the record that plaintiff even asked for any accommodation at all, or initiated a dialogue about a possible accommodation. Defendants can not be held liable for failing to provide a reasonable accommodation when it was plaintiff who stymied the extent of their knowledge of her alleged disability in the first instance. See e.g., Beck, 75 F.3d at 1134-37 (finding that defendant could not be held liable for failure to accommodate when plaintiff refused to provide additional medical information from her doctor, and defendant as a consequence was not able to obtain an adequate understanding of the situation).
This Court, therefore, finds that plaintiff has not met her burden on the second prong of the prima facie case, i.e. she has not shown that defendants had knowledge of her disability. For the same reasons, she has not met her burden on the fourth prong, in that she has failed to show that defendants refused to make a reasonable accommodation. As previously discussed, without adequate knowledge of her medical condition, defendants were not in a position to even offer, let alone refuse, a reasonable accommodation to plaintiff. Accordingly, this Court finds that the plaintiff has not met her burden of establishing a prima facie case of discrimination under the ADA, and summary judgment is appropriate in favor of defendants on this claim.
III. Conclusion
As no genuine issue of material fact is presented on either the discrimination or retaliation claims under Title VII, or the discrimination claim under the ADA, this Court grants summary judgment in favor of the defendants on all of plaintiff's claims.
Defendants also move to dismiss Bayside as a party to this action as it is not a separate corporate body from the New York City Board of Education. Plaintiff does not address defendants' argument. This Court agrees with defendants, and dismisses Bayside on the additional ground that it is an improper party.