United States District Court, S.D. New York
August 30, 2005.
CLARA GARRETT, Plaintiff,
JAMES MAZZA, individually and as Superintendent of Community School District #3, PATRICIA ROMANDETTO, individually and as Superintendent of Community School District #3, RUDOLPH CREW, as Chancellor of the New York City Public Schools, and NEW YORK CITY BOARD OF EDUCATION, Defendants.
The opinion of the court was delivered by: BARBARA JONES, District Judge
Opinion and Order
Plaintiff Dr. Clara Garrett ("Garrett") brings this action
against Defendants James Mazza ("Mazza"), Patricia Romandetto
("Romandetto"), Rudolph Crew, and the New York City Board of
Education ("the Board"), arising out of her removal in July 1997
from her position as principal of a Manhattan public middle
school and her subsequent reassignments to different positions in
the school system.
Garrett timely filed a complaint contesting her removal from
office with the Equal Opportunity Employment Commission. That
agency issued a "Notice of Right to Sue" in September 1997, and
in December of that year Garrett filed a complaint properly invoking the jurisdiction of this Court pursuant to
42 U.S.C. § 2000e-5(f)(1) and 28 U.S.C. § 1343(4). That original complaint
named Community School Board #3 as a defendant, but did not name
the New York City Board of Education.
Garrett alleged violations of: Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1983;
42 U.S.C. § 1985(3); 18 U.S.C. § 241; New York Executive Law 296;
and New York City Administrative Code 9-107.
In an Order dated February 13, 2001, this Court granted summary
judgment for various defendants on a number of Plaintiff's
original claims. The Court denied summary judgment as to
Garrett's Title VII discrimination and retaliation claims as to
Community School Board #3, and also denied the motion as to the
state law discrimination and retaliation claims as to all
defendants. A trial on those claims is now pending.
On or about June 28, 2004, Plaintiff filed a Third Amended
Complaint, substituting the New York City Board of Education for
Community School Board #3 and adding two further claims: that by
refusing to appropriately assign her, Romandetto violated
42 U.S.C. § 1983 by restricting Plaintiff's right of access to the
courts as protected by the First Amendment to the Constitution;
and that she was constructively discharged, also in violation of
42 U.S.C. § 1983. Before the Court now is a second motion by Defendants for
summary judgment on Garrett's claim of constructive discharge.
For the reasons set forth below, Defendants' motion for summary
judgment is GRANTED.
Garrett was employed by the Board as a principal in Community
School District #3 (the "District") from 1979 until July 1997,
when then-Deputy Superintendent Mazza removed her from that
position. Garrett, who is black, alleges that this removal was,
in part, in retaliation for her public criticism of the
District's "Choice" plan, and that this and other of the
Defendants' subsequent employment actions were in part racially
In August 1997 Romandetto, who had by then replaced Mazza as
District Superintendent, assigned Garrett to the position of
Comprehensive Health Coordinator. In that position she worked at
the District office, under the Director of Pupil Personnel
Services. Her work area was among the secretaries at the District
office, at a computer table that had belonged to one of the
secretaries, and she was not given a telephone. Plaintiff's
Memorandum of Law in Opposition to Defendant's Motion for Summary
Judgment ("Pl. Memo") at 3. In January 1998 Garrett was moved to another office,*fn2
where "[s]he did the job of a `clerical aide,' collecting
immunization forms from principals and school health surveys,"
In or about September 1998 Plaintiff was brought up on
disciplinary charges, all of which were eventually dismissed.
Sometime thereafter, Romandetto assigned Garrett to P.S. 144,
where she was told by the principal that her office would be a
windowless, unheated supply closet, without a telephone. Id. at
5. When she was removed from that space because of the concerns
of the custodial staff over the lack of heat, Garrett was posted
to the Board's central headquarters on Livingston Street in
Brooklyn. There she was given "a chair next to the coat rack" in
a shared office, where she sat "for months and read the New York
Times" before she was eventually given what were essentially
editorial duties reviewing the grammar of decisions of hearing
officers before they were presented to the Chancellor for his
signature. Id. at 6 (quoting from the transcript of the first
day of Garrett's deposition ("Garrett Dep. I"), at 73).
In October or November 1999, Romandetto met with Garrett and
offered her five different placement options within District #3,
all of which would have allowed her to retain her principal's
salary but none of which she found acceptable because none were principalships. Plaintiff's Response to
Defendants' Local Rule 56.1 Statement ("Pl. Resp.") at ¶
In November 1999, Garrett was assigned as principal of the
middle school students at Wadleigh Secondary School ("Wadleigh").
She protested this assignment in writing, Pl. Memo at 8 (citing
Exhibit 5 to the Affirmation of Michael Sussman ("Sussman
Aff'n"), Letter from Garrett to Romandetto dated November 9,
1999). Garrett alleges that she was made to feel unwelcome by the
existing administration at Wadleigh, because she had been foisted
upon the school as part of what she saw as an inappropriate plan
to divide what had been one school into two sub-units within the
same building. Pl. Memo at 9-10. Garrett believes that the school
and the community blamed her for the disruption caused by this
plan, which she neither instituted nor even supported. Id.
In March 2000 the community held a public meeting objecting to
her placement at Wadleigh. Romandetto then removed Garrett from
Wadleigh and assigned her to the position of Director of Pupil
Personnel Services, at the same salary, benefits and work
schedule of a tenured principal. As one of her duties in this
position, Garrett responded to parents' complaints. Garrett claims that she was given only the complaints of black and Latino
parents, and that Romandetto's assistant, who is white, handled
the complaints of white parents. Pl. Resp. at ¶ 30; Pl. Memo at
Garrett filed an administrative grievance soon after this
appointment, claiming that she had a contractual right to be
placed as a principal. The grievance was sustained, by a decision
that made clear that Garrett did not have the right to a
placement at the school of her choice.*fn4 Upon resolution
of the grievance, Garrett was told she would be assigned as
principal of a bilingual middle school, a position for which she
felt herself unqualified. She saw this assignment as "programming
her to fail," Plaintiff's Counter-Statement of Facts ("Pl.
Counter-Stmt"), at ¶ 68 (citing transcript of the second day of
Garrett's deposition ("Garrett Dep. II"), at 53). The assignment
was upheld by the Chancellor's Office, id. at 71 (citing
Exhibit 17 to Sussman Aff'n, Grievance Decision (OLR #786),
signed by the Chancellor's representative on March 26, 2001 ("The
superintendent's assignment of the grievant to the Dual Language
Middle School is an appropriate contractual remedy.")). However, Garrett was never told to report to that
school. Pl. Counter-Stmt at 72 (citing Garrett Dep. I at 139),
and she remained in the position of Director of Pupil Personnel
Throughout the period from July 1997 to August 2002, Garrett
"repeatedly advised Romandetto that she wished to be returned to
a contractually required principalship," id. at 74 (citing
Garrett Dep. II at 121-22). She did not, however, seek other
employment, hoping instead that this suit would result in an
appropriate reassignment. Id. at 75 (citing Garrett Dep. I at
123-24). In all her various placements, Garrett retained the pay
and benefits that she had received as a principal.
In August 2002, Romandetto assigned a white male coworker to
attend an out of town conference to which Garrett had been sent
the previous year. Garrett claims that, because of her position
within the District, she was the more appropriate choice to
attend the conference. The decision to send someone else was the
proverbial "last straw" for Garrett, and she retired that same
Garrett alleges that the events recited above combined to
effect a constructive discharge, in violation of
42 U.S.C. § 1983. SUMMARY JUDGMENT STANDARD
On a motion for summary judgment under FED. R. CIV. P. 56(c),
the moving party must show that there are no genuine issues of
material fact and that the moving party is entitled to judgment
as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317
(1986). In order to defeat a motion for summary judgment, the
opposing party must adduce admissible evidence that demonstrates
the existence of genuine issues of material fact. G.D. Searle &
Co. v. Medicore Communications, Inc., 843 F. Supp. 895, 903
(S.D.N.Y. 1994). In deciding the motion, the district court must
view the evidence in the light most favorable to the non-moving
party and draw all reasonable inferences in that party's favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
However, mere conclusory allegations will not suffice to defeat
the motion, and there "must be more than a `scintilla of
evidence'." G.D. Searle, 843 F. Supp. at 903.
SUMMARY JUDGMENT ON A CONSTRUCTIVE DISCHARGE CLAIM
"[A] claim of constructive discharge must be dismissed as a
matter of law unless the evidence is sufficient to permit a
rational trier of fact to infer that the employer deliberately
created working conditions that were `so difficult or unpleasant
that a reasonable person in the employee's shoes would have felt
compelled to resign.'" Stetson v. Nynex Serv. Co.,
995 F.2d 355, 361 (2d Cir. 1993) (quoting Pena v. Brattleboro Retreat,
702 F.2d 322, 325 (2d Cir. 1983)).*fn5
Because Garrett claims that Defendants' actions were motivated
by racial prejudice, she must show that Defendants made her
working conditions intolerable in circumstances from which a
rational trier of fact might infer such a discriminatory motive.
See Flaherty v. Metromail Corp., 235 F.3d 133, 138 (2d Cir.
2000). Likewise, in order to make out her claim of retaliation,
Garrett must present evidence from which the trier of fact might
infer a retaliatory motive. See Sokol v. Reading Regional
Airport Authority, No. Civ.A. 99-111, 1999 WL 562757 (E.D. Pa.,
July 23, 1999). Then, she must demonstrate "aggravating factors"
that make the workplace intolerable. See, e.g., Jimoh v. Ernst &
Young, 908 F. Supp. 220, 226 (S.D.N.Y. 1995); Grant v. Morgan
Guar. Trust Co., 638 F. Supp. 1528, 1538 (S.D.N.Y. 1986).
Because the Court finds that Garrett has not presented evidence
of "aggravating factors" sufficient that a rational trier of fact
could find her work environment intolerable, there is no need
specifically to consider whether she has presented competent evidence of discriminatory or
retaliatory animus on the part of Defendants.
INTOLERABLE WORK ENVIRONMENT
What a reasonable person would consider intolerable is "a
question of fact that is ordinarily inappropriate for resolution
on a motion for summary judgment." Allen v. Colgate-Palmolive
Company, No. 79 Civ. 1076-CSH, 1985 WL 406, at *2 (S.D.N.Y.,
March 21, 1985). However, "summary judgment may [sometimes] be
appropriate even in the fact-intensive context of discrimination
cases," Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456,
466 (2d Cir. 2001), because the reasonable person standard is
objective and "does not depend on such traditionally triable
issues as the subjective reaction of any particular employee to
changed working conditions." Halbrook v. Reichhold Chem., Inc.,
735 F. Supp. 121, 125-26 (S.D.N.Y. 1990).
Courts in this Circuit and others have held that a reasonable
person should be able to tolerate a considerable amount of
unpleasantness on the job without feeling compelled to resign.
See, e.g., Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d
Cir. 1993) (no constructive discharge where plaintiff "was
ridiculed by his supervisor, blamed for not knowing about certain
changes in company practice of which no one had notified him,
harangued by executives, written up and criticized for poor
performance, threatened with termination, placed on probation, and suffered high blood pressure as a result of his supervisor's
treatment."); Katz v. Beth Israel Med. Ctr., No. 95 Civ. 7183
AGS, 2001 WL 11064, at *14 (S.D.N.Y. Jan. 4, 2001) (no
constructive discharge where employee was "routinely" berated by
her supervisors, criticized unfairly, given insufficient staff
assistance, told to resign if dissatisfied, "and at least once
threatened with termination"); Mark v. Mt. Sinai Hospital,
85 F. Supp. 2d 252, 257 (S.D.N.Y. 2000) (no constructive discharge
where psychologist employed by hospital was deprived of a
personal office and had to wheel a portable filing cabinet with
her patient records from office to office every day, absent
evidence that she was unable to secure a private room to meet
with patients or that portable filing cabinet compromised
security of confidential patient records).*fn6
Here, Garrett has failed to offer evidence that, even when
viewed in the light most favorable to her, makes the required
showing of intolerability. Although Garrett may have been
displeased with her position within the District and even humiliated by the circumstances of her reassignments, as she
claims, no rational trier of fact could find that the evidence
presented could add up to working conditions that a reasonable
person would find "intolerable."
Three undisputed facts in particular demonstrate this. First,
Romandetto offered Garrett the choice of five different
placements that would have allowed her to leave the position of
Comprehensive Health Coordinator, to which she had been assigned
after she was removed from her principalship. Garrett refused to
accept any of the offered positions as not commensurate with her
skills and experience, even though her salary and benefits would
have remained the same had she taken any of them. The Court of
Appeals for the Second Circuit has held that a constructive
discharge cannot be established through evidence that the
employee was simply "dissatisfied with the nature of [her]
assignments," Stetson, 995 F.2d at 360; see also Gray v. York
Newspapers, Inc., 957 F.2d 1070 (3d Cir. 1992) (employee's
subjective interpretation that continued employment would be
uncomfortable and demeaning and would lead to demotion or
termination in the future does not constitute constructive
discharge); Gumbs v. Hall, 51 F. Supp. 2d 275 (W.D.N.Y. 1999)
(no constructive discharge where plaintiff was simply "less than
satisfied with the alternatives offered to her, because of her subjective belief that they would be a step down from her prior
Second, Garrett remained in her position as Director of Pupil
Personnel Services for more than two years despite her purported
discontent, undermining her claim that she found the conditions
"intolerable." The Court acknowledges that "the effect of a
number of adverse conditions in the workplace is cumulative,"
Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 90
(2d Cir. 1996), and that workplace conditions in some instances
become intolerable only after such a process of accumulation.
Nevertheless, most courts have disfavored constructive discharge
claims where plaintiffs have remained on the job for more than a
brief time. See, e.g., Flaherty v. Metromail Corp., No. 98 CIV.
8611 (NLRB), 2001 WL 868011, at *5 (S.D.N.Y. July 31, 2001)
(granting summary judgment for defendant where plaintiff's
five-month "voluntary service following her alleged `constructive
discharge'" weighed heavily against her); Rodriguez v.
Graham-Windham Servs. to Families and Children, No. 99 Civ.
10447 AGS, 2001 WL 46985, at *6 (S.D.N.Y. January 18, 2001)
(where plaintiff agreed to work for two weeks beyond the date
stated in her letter of resignation, court found "it would be
difficult for a reasonable person to accept that an employee
would voluntarily agree to work for a longer time in an
atmosphere so intolerable that she felt forced to resign."). Here, Garrett's continued service belies her contention that her
work environment was intolerable.
Finally, Garrett has presented no evidence that her
compensation was ever affected. Courts have found evidence of
changes in compensation to be significant support for a claim of
constructive discharge; see, Kirsch v. Fleet Street, Ltd.,
148 F.3d 149, 161 (2d Cir. 1998) (evidence supported jury verdict of
constructive discharge where plaintiff's compensation had been
reduced by more than half, resulting in "a condition so difficult
that a reasonable person in [his] shoes would have felt compelled
to resign"). Conversely, courts have found the absence of such
evidence fatal to plaintiffs' claims, see, Tanay v. St. Barnabas
Hospital, No. 99 Civ. 9215 (JGK), 2001 WL 262695 (S.D.N.Y.,
March 15, 2001) (no constructive discharge where plaintiff,
though reassigned to her perceived detriment in retaliation for
her complaints of discrimination, retained same salary, benefits
and work hours). The fact that Garrett's salary and benefits were
never reduced during the five years under consideration weighs
very heavily against her claim of constructive discharge.
Construing the evidence in Garrett's favor, the Court finds
that she has failed to show that her working conditions were so
intolerable as to constitute a constructive discharge. Because Garrett did not establish this essential element of her claim,
the Court need not address the sufficiency of her evidence on
Defendants' retaliatory or racial motives.
Defendants' motion for summary judgment is granted on the claim
of constructive discharge. The parties are directed to submit a
joint pre-trial order on or before September 30, 2005. Trial
shall commence on November 14, 2005 at 10:00 a.m. All motions in
limine, proposed voir dire questions, and proposed jury
instructions shall be submitted to the Court on or before
November 7, 2005.
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