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Shums v. New York City Dep't of Education

March 31, 2006

SOFIA SHUMS, PRO SE, PLAINTIFF,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION AND MARILYN ALESI, DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM AND ORDER

Pro se plaintiff Sofia Shums challenges her termination from her position as a public school teacher. She asserts claims of First Amendment retaliation; discrimination on the basis of national origin under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; the New York State Human Rights Law, N.Y. Exec. Law § 296; and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107. Defendants have moved to dismiss plaintiff's amended complaint under Fed. R. Civ. P. 12(b)(6). Because plaintiff is a pro se litigant, the court, in deciding this motion, has construed plaintiff's papers broadly, interpreting them to raise the strongest arguments suggested. See Weixel v. Bd. of Educ. of the City of New York, 287 F.3d 138, 145--46 (2d Cir. 2002). For the reasons set forth below, defendants' motion to dismiss is granted in part and denied in part.

I. Facts

Plaintiff was born in India and is of Indian national origin. Prior to moving to the United States in 1973, plaintiff received two bachelor's and two master's degrees. Plaintiff received a Master's in Guidance and Counseling from Central Michigan University in 1974. In 1982, plaintiff received a Master's from Michigan State University in Teaching English to Speakers of Other Languages ("TESOL"). In 1988, plaintiff commenced employment with the Board of Education of the City School District of the City of New York, now operated as defendant New York City Department of Education ("NYCDOE"). Plaintiff taught English as a Second Language ("ESL") to students for fifteen years and, except for the last two years of her career with the NYCDOE, received satisfactory evaluations. During the 2000--01 school year, plaintiff began teaching at PS 129. Plaintiff was the sole full-time ESL teacher and the ESL Coordinator for the school. Plaintiff's responsibilities included "testing students eligible for ESL, and teaching students in a 'pull-out' program in which students are removed from their regular classrooms for ESL." (Am. Compl. ¶ 11.)

As part of her duties as ESL Coordinator, plaintiff created schedules for the ESL classes she taught. In September 2001, defendant Marilyn Alesi, principal of PS 129 and plaintiff's immediate supervisor, created and imposed on plaintiff a schedule for ESL classes. Plaintiff complained to the Assistant Principal of PS 129 that Alesi's schedule did not allow sufficient time to provide ESL services. Alesi created a second schedule a few days later. Alesi did not consult with plaintiff before creating either schedule. In October 2001, plaintiff asked the Assistant Principal for additional tables and chairs due to an ambiguity in the schedule. At this time, Alesi called plaintiff into her office and told her "you can't even read. You don't know how to read." (Am. Compl. ¶ 13.) Plaintiff alleges that she was placed into fear of bodily harm when Alesi, while berating her, jabbed her finger at the schedule plaintiff held in front of her chest.

Following this incident, by letter dated October 14, 2001, plaintiff wrote to the school district's ESL Coordinator, Kathy Mamounis, with a copy sent to the Superintendent and Alesi, to detail the concerns plaintiff had with the scheduling. In this letter, plaintiff complained that Alesi's scheduling violated ESL program requirements by causing ESL students to receive less than the state mandated instructional time.*fn1 Plaintiff pointed out that logistical concerns, such as shuttling children (including some with special needs) from room to room or between floors, created a reduction in instruction time, sometimes as much as 20 minutes per ESL session. Plaintiff also complained that the transportation of the youngest ESL students back to their regular classes conflicted with the scheduling of ESL sessions with older students and diminished the amount of instructional time for the older students. Plaintiff claimed that a dance class scheduled at a time overlapping with ESL instruction was resulting in a loss of 10 minutes per session. Plaintiff voiced concern over other scheduling conflicts, including a lunch period scheduled at the same time as an ESL session for second and third graders and early dismissal times for fifth and sixth graders.

As a result of the October 14 , 2001 letter, plaintiff claims that defendants retaliated against her by having District 25 ESL Coordinator Katherine Mamounis conduct a formal observation of one of plaintiff's classes. Additionally, plaintiff maintains that defendants subjected her to "unwarranted scrutiny and criticism for the purpose of creating a 'paper trail' to be used to discipline" her. (Am. Compl. ¶ 18.) Plaintiff alleges this action by the defendants "would not have been employed but for the defendants' animus towards the plaintiff because of her First Amendment speech." (Id.) She states that harassment over the three years proceeding her complaint caused her emotional and physical suffering, including heart problems, sleep disturbances, and other symptoms related to stress.

Plaintiff claims that defendant Alesi displayed her prejudice towards her because of her national origin in several ways:

(1) Alesi implied that plaintiff's accent and her nationality made her ignorant when she made the "you can't even read" comment in October 2001.

(2) During "a period of months around March 2001" Alesi insisted that plaintiff "follow the American custom of looking at a person's face while speaking" and told her, "You look me in the eye when you talk to me," and "Don't take your eyes off my face." (Am. Compl. ¶ 22.) These actions were intended only to "show contempt for the norms of deference prevailing in the culture of the plaintiff's national origin." (Id.)

(3) Alesi told plaintiff, "How can you teach ESL to the students if you yourself do not follow the cultural norms." (Id. ¶ 23.)

On June 9, 2003, a representative of the Superintendent of District 25, Anne Marie Iannizzi, was sent to observe plaintiff's classroom. Plaintiff claims that Alesi had already determined by this date that plaintiff was to receive an unsatisfactory rating for the year. According to plaintiff, Iannizzi had conducted around 50 observations within District 25 of teachers principals intended to rate unsatisfactory and had never rated a teacher's performance satisfactory. Plaintiff insists that "Iannizzi's evaluation was merely a rubber-stamp of defendant Alesi's decision to seek plaintiff's termination." (Am. Compl. ¶ 29.)

On or about September 6, 2003, plaintiff was suspended with pay. On or about November 22, 2003, pursuant to N.Y. Educ. Law § 3020-a, plaintiff was served with disciplinary charges for misconduct, unsatisfactory performance, and excessive absenteeism during the 2001--02 and 2002--03 school years. Between January 21 and April 16, 2004, plaintiff was afforded sixteen days of hearings on the charges. Plaintiff's counsel during these hearings informed the Hearing Officer that no argument was being made regarding the motivation behind the charges, but plaintiff argued in a post-hearing brief to the Hearing Officer that Alesi's testimony should not be credited because of national origin animus. In a July 19, 2004 decision, the Hearing Officer ruled against plaintiff. Plaintiff was found guilty of failing to provide ESL services to a student for three months, improperly giving a blank copy of a test to a parent, improperly posting test scores, teaching four unsatisfactory lessons, and other specifications.The Hearing Officer did not find the unsatisfactory classroom observations by themselves enough to justify termination, as the plaintiff also had satisfactory observation on record. However, the Hearing Officer recommended that plaintiff be terminated because of the severity of failing to provide ESL services to a student for a period of three months and improperly giving a blank copy of a test to a parent. Plaintiff maintains that, as Alesi was the primary witness at the hearings and gave allegedly false testimony, the Hearing Officer would not have recommended termination but for Alesi's animus. Plaintiff was terminated on or about September 15, 2004.

After the hearing, but before the decision had been issued, on or about July 1, 2004, plaintiff filed a charge of discrimination with Equal Employment Opportunity Commission ("EEOC"). The EEOC determined that the facts alleged in the charge failed to state a claim and issued a right to sue letter on or about July ...


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