The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge
Plaintiff Dina John ("plaintiff") has brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), 42 U.S.C. § 1981 ("Section 1981"), the New York State Human Rights Law, Executive Law § 290 et seq., and the New York City Administrative Code § 8-101 et seq., alleging that she was discriminated against in her employment on the basis of race, national origin and perceived disability. Defendant moves for summary judgment on all of plaintiff's claims. For the reasons set forth below, defendant's motion is granted in its entirety.
Plaintiff is an African-American female of Guyanese descent. See Pl. Local Civil R. 56.1 Statement of Undisputed Facts ("Pl. 56.1 Statement") at ¶ 1; Def. Local Civil R. 56.1 Statement of Undisputed Facts ("Def. 56.1 Statement") at ¶ 1. In September 1999, plaintiff started working for defendant New York City Department of Education, also known as the New York Board of Education ("BOE" or "defendant"), when she was hired to teach art as a regular substitute teacher at Intermediate School 183 ("IS 183") in the Bronx. See Pl. 56.1 Statement at ¶ 2, Def. 56.1 Statement at ¶ 1, Ex. C at 103-4. Plaintiff resigned from this position on June 11, 2001 in order to accept a fellowship. See Def. 56.1 Statement, Ex. F. In either September or October 2001, plaintiff resumed her employment with BOE when she was hired to teach biology as a regular substitute at Walton High School ("Walton") in the Bronx. See Pl. 56.1 Statement at ¶ 3; Def. 56.1 Statement, Ex. C.
Plaintiff apparently injured her back at Walton while carrying a projector to a classroom on February 14, 2002. See Pl. 56.1 Statement, Ex. P; Def. 56.1 Statement, Ex. D at 52. She worked the next day and then traveled to England for a week beginning on or about February 16, 2002. See Def. 56.1 Statement, Ex. D at 53-54. After returning from this trip, plaintiff took sick leave from approximately February 25, 2002 to April 20, 2002. See id. at 55-56; Def. 56.1 Statement, Ex. H. Plaintiff was examined by Dr. Lourdes Esteban on February 27, 2002, who diagnosed plaintiff as having "lumbar sacral sprain/radiculopathy" and advised her to rest for a month. See Pl. 56.1 Statement, Ex. P at 13. Dr. Esteban saw plaintiff again on April 3, 2002 and apparently advised her to rest for another month and return to work on April 22, 2002. See Pl. 56.1 Statement, Ex. P at 16. When plaintiff returned to Walton, she filed an "Application for Excuse of Absence for Personal Illness (Sick Leave)" which was ultimately approved as an "ordinary illness" but denied as a "line of duty injury." See Def. 56.1 Statement, Exs. H, I. As a result, plaintiff's sick leave was authorized, but she did not receive pay for these days. See Def. 56.1 Statement, Ex. D at 56-7.
Plaintiff continued to teach at Walton until either May or June of 2002. See Pl. 56.1 Statement at ¶ 3; Def. 56.1 Statement at ¶ 9. Plaintiff's employment was terminated after she appeared before a committee responsible for hiring decisions and informed them that she wanted to leave Walton. See Pl. Aff. in Opp'n to Def. Mot. dated April 26, 2006 ("Pl. Aff.") at ¶ 8; Def. 56.1 Statement, Ex. D at 94-5. At this point, plaintiff was placed "in excess." When teachers are designated to be "in excess", they are apparently placed on a preference list for employment in other schools. See Pl. Aff. at ¶¶ 8,9.*fn2
In September 2002, plaintiff began working at P.S. 287 in Brooklyn. See Pl. Aff. at ¶ 9. She was hired as a regular substitute art cluster teacher by Principal John Khani ("Principal Khani"). See Pl. 56.1 Statement at ¶ 5; Def. 56.1 Statement, Ex. D at 108. A cluster teacher is an elementary school teacher with a specialty in a specific subject area. See Declaration of John R. Khani dated February 28, 2006 ("Khani Decl.") at ¶ 8.
Sometime before plaintiff started working at P.S. 287, the school applied for funding for a computer lab intended to improve student literacy. See Khani Decl. at ¶ 9. According to Principal Khani, the proposal requested $100,000 which did not include funding for the salary of an additional computer and literacy teacher. See id.*fn3 In late November 2002, Principal Khani learned that the requested funding had been awarded to P.S. 287. See Khani Decl. at ¶ 11. The new computer lab was to be installed in Room 323, which was plaintiff's classroom and across the hall from the school's existing computer lab. See id. Principal Khani alleges that at this time he concluded he had to terminated one of the existing cluster teachers in order to hire someone who was proficient in teaching both literacy and computer skills. See Khani Decl. at ¶ 12. Principal Khani also alleges that his decision to terminate plaintiff was determined by the fact that she was the least senior cluster teacher and the least senior teacher in the school. See Khani Decl. at ¶ 12; Pl. Aff. at ¶ 15.*fn4
During a student altercation on November 25, 2002, plaintiff injured her arm and finger and filed an injury report the same day. See Def. 56.1 Statement, Ex. L. Plaintiff sought treatment from a doctor, who diagnosed a muscle sprain and advised her to rest. See Def. 56.1 Statement, Ex. M. When plaintiff returned to work on December 2, 2002, she filed an "Application for Excuse of Absence for Personal Illness". See Def. 56.1 Statement, Ex. N. Plaintiff requested that her injury be classified as a line-of-duty injury and that her two-day absence be excused with pay and without any deduction from her sick leave account. See id. Principal Khani approved this application. See id. During the week after plaintiff returned to work, she apparently took an additional two days of leave for a colonoscopy. See Pl. Aff. at ¶ 10.*fn5
Principal Khani sent plaintiff a termination letter dated December 2, 2002, which plaintiff received on December 9, 2002. See Pl. 56.1 Statement, Ex. C at ¶ 10, Ex. L; Def. 56.1 Statement, Ex. S at ¶ 7, Ex. U. The letter informed plaintiff that December 20, 2002 would be her final day at P.S. 287. See Pl. 56.1 Statement, Ex. K. Thereafter, plaintiff's union representative later spoke to Principal Khani and persuaded him to employ plaintiff as a day-to-day substitute from December 20, 2002 to January 21, 2003.*fn6 See Def. 56.1 Statement, Ex. Q; Khani Decl. at ¶ 14; Pl. 56.1 Statement, Ex. M. On December 19, 2002, Principal Khani sent a memorandum to plaintiff discussing her employment status. See Pl. 56.1 Statement, Ex. N. The memo reiterated that December 20, 2002 would be her last day as an art cluster teacher, but confirmed that the school would continue to employ her until January 31, 2003 as a day-to-day substitute for absent teachers as needed. See id. The memo clearly stated that "[a]s of January 31, 2003, [plaintiff's] services at `287 will terminate." Id.
At bottom, plaintiff contends that the computer lab served as a pretext for Principal Khani to terminate her and that the decision was actually motivated by her race, national origin, and perceived disability. See Compl. at ¶¶ 18, 26.*fn7 Plaintiff claims that the usual practice of the BOE in such situations is to place teacher "in excess" so that they can be reassigned. See Pl. Aff. at ¶ 9; Compl. at ¶ 17. She also claims that Principal Khani or other school employees improperly "classified" her licensing qualifications and seniority and that these errors contributed to her termination. See Compl. at ¶¶ 19-23. Finally, plaintiff alleges that Principal Khani repeatedly told her to keep her voice down at school because he did not like her accent and that these comments serve as additional evidence of Principal Khani's bias against her national origin. See Pl. Aff. at ¶ 13.
On October 8, 2003, plaintiff filed a notice of claim against defendant and the United Federation of Teachers Union with New York City's Office of the Comptroller alleging "discrimination on the basis of disability, national origin, sex, wrongful termination, and union contract matters." Def. 56.1 Statement at ¶ 24, Ex. R. On October 14, 2003, plaintiff filed a charge of discrimination against the defendant with the Equal Employment Opportunity Commission ("EEOC"). See Def. 56.1 Statement, Ex. S. On October 31, 2003, the EEOC notified plaintiff that it would not investigate her claim because it was untimely, but notified her of her right to sue. Def. 56.1 Statement, Ex. T. On November 18, 2003, plaintiff filed a complaint against the defendant with the New York State Division of Human Rights ("DHR"). See Def. 56.1 Statement, Ex. V. On March 9, 2004, DHR sent plaintiff a determination explaining that their investigation had yielded no evidence to support plaintiff's allegations of discrimination. See Def. 56.1 Statement, Ex. W. On April 30, 2004, the EEOC informed plaintiff that it was adopting DHR's findings and again notified her of the right to sue. Def. 56.1 Statement, Ex. X. Plaintiff filed the complaint in this action on July 28, 2004.