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June 11, 1999


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


Plaintiff Elizabeth Mescall ("Mescall") brings this action against the Yonkers City School District, her former employer (the "District"), and Reginald F. Marra, the District Superintendent, individually ("Marra"), alleging that she was wrongfully denied tenure in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101-12217, the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the First Amendment of the United States Constitution.*fn1 Defendants moved for summary judgment on all claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. On May 26, 1999, we issued an Order granting in part and denying in part the relief sought, indicating that we would file this opinion shortly thereafter explicating our reasons for the Order.


The following facts are undisputed unless otherwise stated. Mescall commenced employment with the District for a three-year probationary term as a guidance counselor on September 8, 1994. During the 1994/95 school year, she worked two days per week at the Early Childhood Center and three days per week at the Enrico Fermi Elementary School. That year, Wendy London, Principal of the Early Childhood Center, Janet Rosenblatt, Assistant Principal of the Early Childhood Center, and Charles Whelan, Principal of the Enrico Fermi Elementary School rated Mescall's job performance as satisfactory in their written performance reviews. However, the District records and Mescall's Annual Evaluations indicate that she was absent seventeen days during the school year. Mescall does not dispute the number of absences recorded during her first probationary year.*fn2 She does, however, deny that Ms. London approached her to discuss the issue of attendance.

For the 1995/96 school year, Mescall transferred to the Foxfire Elementary School. Ms. London also left the Early Childhood Center to become Principal of Foxfire. Between November 1, 1995 and December 15, 1995, Mescall was absent five days. Then on December 18, 1995, she was involved in a car accident. As a result of the accident, Mescall complained of back and neck pain, as well as depression, anxiety and fear of driving. In January of 1996, Mescall was absent for nine days which she attributes to a fall on some ice. In April of 1996, Mescall claims that she re-injured her neck when reaching for a box on a high shelf, causing her to be bed-ridden and unable to walk, for three days.*fn3 In total, Mescall was absent twenty-one days during the 1995/96 school year.*fn4

Although Mescall's 1995/96 Annual Evaluation was again satisfactory, Ms. London commented as follows, "I would caution Mrs. Mescall regarding her absences. Although she was able to bring in medical notes, they are excessive, particularly following holidays. Attendance should improve dramatically next year." Ms. London also mentioned that "[t]here were times when Mrs. Mescall was hesitant or refused to work with a particular youngster." This apparently refers to Mescall's refusal to work with a kindergartener who had previously thrown a chair across a room and thrown himself at Mescall, aggravating her back injury. Despite Ms. London's directive that Mescall assist a teacher's aid in a classroom during recess, Mescall refused to enter the classroom because the physically assaultive child was present.

When Mescall explained that she was not required to be in the classroom during recess, Ms. London told Mescall to contact the union for guidance on the issue. Mescall subsequently contacted John Eshoo ("Eshoo"), Vice President of the Yonkers Federation of Teachers (the "Union"), who advised Mescall that she was not contractually obligated to do "lunch duty."

For the 1996/97 school year, Mescall transferred to P.S. 21 where she spent her third and final probationary year as a guidance counselor. In September 1996, Ana Celia Delgado ("Delgado"), the Principal of P.S. 21, and J. Menkes Castronova, the Assistant Principal, distributed a memorandum to all non-tenured teachers requiring them to submit lesson plans. In addition, Delgado asked Mescall to deliver a classroom presentation every day. Mescall contacted Eshoo to inquire whether she was contractually obligated to prepare lesson plans and daily classroom presentations. Eshoo advised Mescall that, although not contractually obligated to do so, she should obey her Principal's directives, and let the Union address her complaints through the grievance process.*fn5 Eshoo then contacted Paul Citarella ("Citarella"), the District's Director of Personnel who, in turn, contacted Delgado.*fn6 Mescall alleges that Delgado reprimanded her for contacting the Union and threatened to rate her performance as unsatisfactory if she continued to bring the Union into the building.*fn7 Mescall further alleges that Delgado commented about Mescall's union affiliation in front of another school employee.

Eshoo met face-to-face with Hardeman on November 6, 1996 and November 18, 1996 to discuss again the Union's concerns. Without mentioning Mescall by name, Eshoo discussed her previous confrontation with Delgado and asked Hardeman to speak with Delgado about her anti-union statements to the staff. Again, Hardeman failed to apprise the Union of any action taken in this regard.

Mescall claims that in or around January of 1997, her mental impairment (i.e., stress, depression and anxiety) became disabling, causing her to suffer from rashes, hives, dizzy spells and fainting. She attributes the increasing severity of her mental condition to her father's diagnosis of stage-C colon cancer, and to working under Delgado.*fn8

Two more confrontations between Mescall and Delgado occurred in early February 1997. In one instance, Mescall was called into Delgado's office to discuss a report by Sylvia Zaluski, Mescall's program coordinator, that Mescall had presented an untimely, off-topic and disorganized classroom presentation. The other incident concerned Delgado's request that Mescall work with a group of students during recess. Mescall refused to hold what she characterized as detention on the grounds that her contract prohibited "lunch duty" and the disciplinary nature of detention would interfere with her relationship with the students. Delgado claimed that it was a voluntary group counseling session and again reprimanded Mescall for her insubordination. Mescall further alleges that she was once again berated for her union involvement and threatened with a denial of tenure. As a result of this confrontation, Mescall broke out in hives and went to the emergency room complaining of stress, anxiety, dizziness and fainting spells. On the recommendation of her doctor, Mescall did not return to work at P.S. 21.*fn9 The District hired a guidance counselor to assume Mescall's duties.

As of February 18, 1997, Delgado's anti-union behavior was still being discussed at the Union Board meeting. P.S. 21 staff members indicated to Union representatives Edelstein and Rita Seligman on February 26, 1997 that they feared negative repercussions from Delgado if they contacted the Union. On March 5, 1997, Union President Tice met with Hardeman and Delgado to discuss the reports of Delgado's anti-union behavior.*fn10 Although Delgado denied the allegations, Hardeman advised Tice that Delgado would be required to retract any such statements at the upcoming faculty meeting. Delgado did make a statement at the March 20, 1997 faculty meeting regarding the discouragement of union activity, however, the Union representatives were dissatisfied with its content.

Meanwhile, on or about February 26, 1997, Mescall wrote to Citarella requesting an accommodation in the form of an openended medical leave of absence to commence on March 3, 1997. On or about March 15, 1997, Citarella spoke with Mescall over the phone to discuss the status of her tenure review, as well as the details of her proposed leave of absence. This conversation was tape recorded by Mescall. Citarella informed Mescall that her absences during her probationary period had been excessive and, in light of the District's attendance policy, she would not be recommended for tenure.*fn11 Mescall claims that Citarella proceeded to inform her that she would not be granted a medical leave of absence. Citarella does not recall telling Mescall that her requested accommodation would be denied, but rather believes he told her to file the necessary paperwork.

Thereafter, Mescall wrote to Citarella requesting that he reconsider her request for leave and advising that her doctors assured her she would be able to return to work by June 3, 1997. By letter dated April 7, 1997, Mescall was notified that the District had granted her medical leave from March 3, 1997 through June 3, 1997.

On March 13, 1997, Delgado prepared a Probationary Review Report wherein she recommended against Mescall's continued employment with the District, citing Mescall's poor attendance record, failure to follow directives and suggestions regarding classroom presentations and counseling groups, arbitrary planning of classroom presentations, and delay in processing referrals. Reference was also made to Ms. London's previous evaluation concerning Mescall's refusal to work with the kindergartener. Delgado's report was subsequently placed in Mescall's personnel file and reviewed by Citarella, Hardeman and Marra.

Despite the fact that Mescall's illnesses and indispositions had been documented, Hardeman claims that she considered the absences to be excessive and therefore recommended against Mescall's receiving tenure.*fn12 Although the District has no formal written policy establishing a limit on acceptable absences, Mescall was aware that the District had a strict attendance policy which would be an important consideration in any tenure decision.*fn13 By letter dated May 8, 1998, Marra informed Mescall that he would recommend to the Board that she not receive tenure and that her employment as a probationary teacher in the District would therefore be terminated effective July 31, 1997.

On Mescall's behalf, the Union requested a written explanation for Marra's adverse recommendation and an informal hearing to address the issued raised therein. The following reasons were given by Marra in support of his decision: (1) excessive absences, particularly following holidays; (2) failure to improve attendance from the prior year; (3) hesitancy or refusal to work with a particular youngster; (4) arbitrary planning of classroom presentations; (5) lack of timeliness in addressing referrals; and (6) disregard of professional directives and suggestions.

At the hearing in June of 1997, Tice and Eshoo argued that Mescall had received all satisfactory reviews with the exception of Delgado's 1996/97 review, and all absences had been for medical reasons that were documented to the District. According to Mescall, neither Tice nor Eshoo ever contended that Delgado's adverse recommendation was in retaliation for Mescall's ...

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