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GOMEZ v. PELLICONE

November 20, 1997

ISABEL GOMEZ, Plaintiff,
v.
ROBERT W. PELLICONE, individually, JOHN F. SULLIVAN, individually, STEPHEN C. LANDO, individually, and the EASTCHESTER UNION FREE SCHOOL DISTRICT, Defendants.



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 INTRODUCTION

 Plaintiff Isabel Gomez has asserted claims against defendants Robert W. Pellicone, John F. Sullivan, and Stephen C. Lando (collectively, the "individual defendants") and the Eastchester Union Free School District (the "District") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1983; and the New York State Human Rights Law, Executive Law § 296 et seq. During the events giving rise to this action, Gomez was a clerical employee in the District's Guidance office. The individual defendants were employed by the District in various supervisory positions over Gomez.

 Plaintiff asserts a variety of claims. Plaintiff's first and second claims, filed pursuant to § 1983, allege that defendants violated her First Amendment rights to free speech and to petition government for the redress of grievances. Plaintiff's third claim, filed pursuant to § 1983, is that defendants violated her right to Equal Protection, as provided by the Fourteenth Amendment. Plaintiff's fourth claim is that defendants violated her right to be free from race and national origin discrimination in her workplace, as guaranteed by Title VII of the Civil Rights Act of 1964 and by the New York State Human Rights Law. Plaintiff's fifth and sixth claims are that defendants violated her right to be free from workplace retaliation, as guaranteed by Title VII, the New York State Human Rights Law, and Section 75-b of the New York State Civil Service Law.

 The defendants have moved for summary judgment. For the reasons that follow, the defendants' motion is granted. Plaintiff's claims against the individual defendants under § 1983 are dismissed because the individual defendants are entitled to qualified immunity. In addition, they are not subject to suit under Title VII because they were not Gomez' employer. Plaintiff's claims against the District for race and national origin discrimination and for retaliation in violation of the First and Fourteenth Amendments are dismissed because plaintiff has presented no admissible evidence on the basis of which a reasonable jury could find in her favor. Because this Court declines to exercise supplemental jurisdiction over plaintiff's state law claims, those claims are dismissed as well. After discussing the facts of the case in a light most favorable to plaintiff and reviewing the standard for summary judgment, the liability of the individual defendants and of the District will be discussed in turn.

 BACKGROUND

 Plaintiff Isabel Gomez performed clerical work at the Eastchester Union Free School District. Defendant Robert W. Pellicone ("Pellicone") is the Superintendent of Schools of the District. Defendants John F. Sullivan ("Sullivan") and Stephen C. Lando ("Lando") are the Principal and Assistant Principal, respectively, of the District's high school, where Gomez worked.

 In June 1993, Gomez was directed by Dr. Ronald Naiman, Director of Pupil Personnel for the District and plaintiff's superior, to alter a student's transcript. Dr. Naiman issued that request on the basis of instructions from Pellicone. Although plaintiff's duties included the entering and changing of grades on students' transcripts, in this case she refused to do so, having concluded that the change was unwarranted and would contravene District policy. Typically, such changes were made at the behest of the student's guidance counselor or teacher. In this instance, as far as plaintiff knew, neither the student's teacher nor guidance counselor had approved the change. Gomez believed it was unusual for the Superintendent to direct that a grade be changed without the approval of the student's teacher or guidance counselor and Gomez had never previously been directed to change a student's transcript at the request of the Superintendent. Plaintiff believed that the student's grades were being changed because his mother was politically influential in the community and had persuaded Pellicone to arrange for the grade change in order to improve the student's chances for admission into college. Gomez also notes that the student was white and contends that the grade change was one example of the District's racially discriminatory policies. Informed of Gomez's refusal to enter the grade change, Naiman told her to speak with Pellicone. Plaintiff, along with the school's three guidance counselors, met with Pellicone about the procedures for changing student transcripts.

 Pellicone stated that the grade change was appropriate and was the result of several meetings among Pellicone, the student, and his mother. Nonetheless, Pellicone told Gomez and the guidance counselors that he would consider their concerns. Pellicone had determined that personal problems had caused the student to perform poorly enough to risk failing his courses. Ultimately, Pellicone changed the student's transcript himself, raising the student's grades to passing ones.

 Dr. Naiman, according to Gomez, was angered by her refusal to follow instructions and yelled at her, telling her that her job was in jeopardy. Aside from Dr. Naiman's criticism of plaintiff and plaintiff's discussion with Superintendent Pellicone and the guidance counselors, no one at the District ever mentioned the transcript incident to Gomez again.

 Various district personnel had taken notice, however, of Gomez's chronic lateness to work. Beginning in 1993, plaintiff frequently reported to work late. Lando and Sullivan had numerous conversations with plaintiff about her tardiness. Although plaintiff and defendants dispute the particular days that plaintiff was late to work, there is no dispute that plaintiff often arrived after her scheduled start time of 7:30 AM. By plaintiff's own admission, she regularly arrived at work 10 or more minutes late. Plaintiff's tardiness resulted from the fact that each morning she dropped her son off at a before school program whose doors did not open until 7:30. While plaintiff disputes neither that her work day was scheduled to start at 7:30 nor that she regularly arrived after that time, she does contend that the person who held her position previously began work at 8:00 AM without any problem. Plaintiff has provided no admissible evidence in support of that contention, stating that she was informed by another District employee of the work habits of the woman who previously held plaintiff's position.

 District officials attempted to accommodate plaintiff's family responsibilities by adjusting her work schedule. Dr. Naiman, at plaintiff's request, allowed her to start work at 8:00 AM rather than 7:30 AM. This change, which was implemented on a trial basis after the grade change incident, was to accommodate plaintiff's childcare arrangements. In spite of the later starting time, plaintiff's chronic lateness persisted. Plaintiff continued on the modified schedule from approximately September 1993 to January 1994. At that time, Dr. Naiman informed plaintiff that she would have to resume her normal 7:30 AM starting time because her co-workers had complained about her later starting time. Subsequently, Gomez asked Sullivan, the school Principal, about starting work later. Sullivan denied her request based on what he described as the best interests of the school and of the Guidance office. During the next two years, Sullivan and Dr. Naiman, and defendant Lando as well, wrote numerous memoranda to plaintiff regarding her chronic tardiness and, less frequently, her absences from work.

 In June 1994, one year after the grade change incident, a personnel action taken by the District resulted in plaintiff's termination. Gomez, who lacked seniority, was "bumped" from her position by the District's decision to change a full-time secretarial position to a part-time position. The personnel change affected at least two other employees as well. After having been "bumped" from her full-time position, plaintiff was offered a part-time position, which she refused. Plaintiff filed a grievance regarding her termination, claiming that it breached the agreement between the District and plaintiff's union. Plaintiff ultimately prevailed on her grievance and was rehired, with full back pay, in February 1995, as a secretary in the Guidance office. Her new position had the same civil service title as the position she held prior to her termination.

 During 1995 and 1996, plaintiff also began to receive memoranda regarding deficient work performance and misconduct. According to her direct supervisor at the time (one of the guidance counselors who had accompanied her to discuss the transcript change procedures with Pellicone), plaintiff had failed to complete assignments on time or in the correct manner. Plaintiff was also reprimanded for not accurately recording the times when she started or ended work and for unexcused absences.

 In March 1996, plaintiff filed the first of two EEOC charges, alleging discrimination on the basis of national origin and unlawful retaliation. Plaintiff claimed that she was chosen to change the student's transcript in 1993 because of her national origin, and that a white employee would not have been requested to make such a change. Further, plaintiff alleged that she was retaliated against for her refusal to change the grade and for stating her belief that the change was unwarranted and unfair. Finally, Gomez suggested that the District's June 1994 personnel action constituted national origin discrimination and retaliation for her June 1993 refusal to change a student's transcript.

 On May 1, 1996, plaintiff was notified that disciplinary charges were being brought against her based upon numerous incidents of lateness, falsification of time records, and other misconduct. In May 1996, plaintiff filed her second EEOC complaint, alleging that she had been retaliated against for filing her first EEOC complaint. The retaliation allegedly took the form of micro-managing plaintiff and unfairly scrutinizing her work, time records, and attendance cards. Most importantly, plaintiff identified the initiation of the formal disciplinary proceeding as retaliation for her prior assertion of her rights. In September 1996, plaintiff commenced this lawsuit.

 As a result of the disciplinary charges filed against plaintiff, a two day hearing was held before a neutral hearing officer on September 11 and October 9, 1996. The plaintiff, who was by this time represented by counsel, declined to testify and did not present any witnesses on her behalf. Several witnesses testified on behalf of the District. By a report dated January 27, 1997, the hearing officer upheld the District's charges of chronic lateness, insubordination, and other misconduct. The hearing officer found no evidence to validate Gomez' claims that the disciplinary charges were retaliation for plaintiff's having contested her previous layoff or for any other protected conduct. The hearing officer recommended that plaintiff be suspended for two months without pay. On February 4, 1997, the Board of Education adopted the decision of the hearing officer and suspended plaintiff without pay for two months, from February 5, 1997 through April 4, 1997.

 During the pendency of the first set of disciplinary charges, plaintiff was notified, by letter dated October 7, 1996, of the filing of a second set of disciplinary charges. The basis of this disciplinary procedure was substantially the same as the first, namely that plaintiff was chronically late to work, had engaged in acts of misconduct, and was insubordinate. At the second hearing, held February 26, 1997, the District presented witness testimony, including testimony by plaintiff's coworkers. Plaintiff declined to testify or to offer any witnesses. By letter dated March 24, 1997, the hearing officer reported that he had found plaintiff guilty as charged. Another hearing was held April 10, 1997 to determine the appropriate penalty. Plaintiff and counsel were notified of the ...


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