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Pleener v. New York City Board of Education

September 30, 2007

BARBARA PLEENER, PLAINTIFF,
v.
NEW YORK CITY BOARD OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Ross, United States District Judge

NOT FOR PRINT OR ELECTRONIC PUBLICATION OPINION AND ORDER

Plaintiff Barbara Pleener, a Caucasian former high school principal, brings this action under Title VII of the Civil Right Act of 1964, 42 U.S.C. § 2000e, et seq.; 42 U.S.C. § 1983, and State and local law, principally alleging that her former employer, defendant New York City Board of Education ("BOE"), discriminated against her on the basis of race. Plaintiff further alleges that defendant both retaliated against her and defamed her by informing the press that she was among 45 high school principals to have been replaced during the 2003-2004 school year. Defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant's motion for summary judgment is granted in its entirety and this action is dismissed.

BACKGROUND

With the exceptions discussed below, the parties agree on the facts in this case. Before retiring in 2004 at the age of 55, plaintiff was a longtime employee of defendant BOE. According to plaintiff, she began as a high school English teacher in 1970, and worked for the BOE in various other capacities before becoming a principal (Declaration of Steven L. Barkan ["Barkan Dec."], Ex. 2, at 20-25; Declaration of Eric Eichenholtz ["Eichenholtz Dec."], Ex. C at 20-25. In 1993, plaintiff was appointed principal of Jamaica High School ("JHS") in Jamaica, Queens (Defendant's Local Rule 56.1 Statement ["Def. Stmt."] at ¶ 2; Plaintiff's Response to Defendant's 56.1 Statement ["Pl. Stmt."] at ¶ 2). Plaintiff remained in the post for almost seven years (Barkan Dec., Ex. 2 at 26; Eichenholtz Dec., Ex. C at 26), during which time she received "satisfactory" ratings and became a tenured principal (Def. Stmt. at ¶¶ 3-5; Pl. Stmt. at ¶¶ 3-5).

In November 1998, however, a JHS teacher named Joseph Trupiano filed a complaint with the BOE's Office of Equal Employment Opportunity ("the OEO"), alleging sexual harassment (Def. Stmt. at ¶¶ 6-7; Pl. Stmt. at ¶¶ 6-7). In June 1999, the OEO concluded, inter alia, that plaintiff had engaged in a relationship with Trupiano, during which plaintiff had used her position as principal to provide Trupiano with certain benefits (Def. Stmt. at ¶ 9; Pl. Stmt. at ¶ 9). The OEO also found that plaintiff had purchased a mobile home or trailer with Trupiano -- a violation of the BOE Chancellor's Regulations (Def. Stmt. at ¶ 9; Pl. Stmt. at ¶ 9).

Thereafter, plaintiff and BOE entered into a "Pre-Charge Stipulation of Settlement," which "eliminated the need for the preferral of charges and a formal hearing" (Def. Stmt. at ¶ 13; Pl. Stmt. at ¶ 13). In this stipulation, plaintiff acknowledged violating the Chancellor's Regulations and agreed to pay a fine of $5,000 (Def. Stmt. at ¶ 14; Pl. Stmt. at ¶ 14; Eichenholtz Dec., Ex. G). In addition, the stipulation provided that plaintiff would be transferred to another Queens school "deemed appropriate by the Superintendent," and would be assigned to the Queens Superintendent's office until such placement became available (Id.).

Plaintiff remained at the Queens Superintendent's office until 2003 (Def. Stmt. at ¶ 18; Pl. Stmt. at ¶ 18). According to plaintiff, she was given the title of "Special Assistant to the Superintendent," and did "whatever the superintendent needed" (Def. Stmt. at ¶¶ 16-17; Pl. Stmt. at ¶¶ 16-17). At her deposition, plaintiff stated that she was "the supervising principal of summer and evening high schools for the borough, . . . handled all of the [C]hancellor's correspondence for the Queens high school office, and . . . handled incident reports for the borough" (Barkan Dec., Ex. 2 at 27; Eichenholtz Dec., Ex. C at 27). In addition, by virtue of working in the Superintendent's office, plaintiff became "the go-to person for a lot of the principals in the borough," and was dispatched to help train new principals (Id.). Plaintiff also did proofreading and occasionally "handled late night conferences" (Barkan Dec., Ex. 2 at 27-28; Eichenholtz Dec., Ex. C at 27-28).

In the Summer of 2003, the BOE underwent a system-wide reorganization which resulted in the closure of the Queens Superintendent's office and the creation of a "regional structure" (Def. Stmt. at ¶ 20; Pl. Stmt. at ¶ 20). As a result of this reorganization, Dr. Kathleen Cashin, a Caucasian woman, became the Regional Superintendent of Region 5, which encompassed portions of Brooklyn and Queens (Def. Stmt. at ¶ 21; Pl. Stmt. at ¶ 21). Cashin had several positions to fill, including Deputy Superintendent, Local Instructional Superintendent and principal of Beach Channel High School (Def. Stmt. at ¶¶ 22-23; Pl. Stmt. at ¶ 22-23).

On the recommendation of plaintiff's friend, Diane Schrecho, who Cashin was then considering for the position of Deputy Superintendent, Cashin interviewed plaintiff (Def. Stmt. at ¶ 23; Pl. Stmt. at ¶ 23). According to plaintiff, Cashin was prepared to appoint plaintiff to the position of Local Instructional Superintendent ("LIS"), serving under Schrecho (Eichenholtz Dec., Ex. C at 30).*fn1 However, Schrecho eventually decided to remain on Long Island (id.), and a Caucasian woman named Joan Gordon was appointed to the Local Instructional Superintendent position (Eichenholtz, Ex. C. at 40). Cashin offered plaintiff a position as principal of Beach Channel High School (Def. Stmt. at ¶ 27; Pl. Stmt. at ¶ 27).

In 2003-2004, Beach Channel High School ("BCHS"), located in Far Rockaway, had a student population which was approximately 53 percent black, 28 percent Hispanic, 17 percent white and 4 percent Asian (Def. Stmt. at ¶ 28; Pl. Stmt. at ¶ 28). According to plaintiff, there was "a lack of stability" at BCHS, which had experienced "a history of multiple principals" after the longtime principal, an African-American man named Mr. Gassaway, was promoted to Superintendent (Barkan Dec., Ex. 2 at 31, 45, Eichenholtz Dec., Ex. C at 31). In the school year before plaintiff was appointed, two individuals -- both Caucasian -- had served as principal (Eichenholtz Dec., Ex. C at 33).

In June 2003, shortly after plaintiff was appointed, Cashin and plaintiff met with parents in an attempt to allay their concerns (Def. Stmt. at ¶ 30; Pl. Stmt. at ¶ 30). The exact nature of their concerns is unclear. Although the parties agree that the parents wanted assurances that "their children would get a valuable and acceptable education" (Def. Stmt. at ¶ 31; Pl. Stmt. at ¶ 31), a letter provided by defendant suggests that the parents were also aware of circumstances surrounding plaintiff's removal from JHS and had "gravely expressed . . . concerns" to Cashin about plaintiff's appointment as principal of BCHS (Eichenholtz Dec., Ex. H).

The parties' recollection of the June 2003 meeting differed markedly. At her deposition, plaintiff remembered the meeting as being "very productive," and did not recall if race had ever been mentioned (Barkan Dec., Ex. 2 at 31, 43; Eichenholtz Dec., Ex. C at 31, 43). Cashin recalled "trying to tell [the parents] . . . to be receptive [to plaintiff]" (Def. Stmt. at ¶ 34; Pl. Stmt. at ¶ 34). Cashin further recalled that plaintiff's tone at the meeting undercut that effort.

According to Cashin, plaintiff "talked down" to the parents and displayed an autocratic, "I am the principal attitude" (Barkan Dec., Ex. 3 at 73-74; Eichenholtz Dec., Ex. D at 73-74). Cashin claims that she was "shocked" by plaintiff's manner and decided after the meeting that she would "try to work with [plaintiff] on her interpersonal connection" (Id.). Plaintiff denies that Cashin ever did so (Pl. Stmt. at ¶ 36).

According to plaintiff, everything went well with the students and faculty for the first few months after late June or early July 2007, when plaintiff assumed her new post (Barkan Dec., Ex. 2 at 31; Eichenholtz Dec., Ex. C at 31, 42). However, by plaintiff's own account, the positive attitude "changed" following an incident involving a Haitian Assistant Principal, Claude Monereau (Barkan Dec., Ex. 2 at 43; Eichenholtz Dec., Ex. C at 43).

That incident began on September 26, 2003, during a meeting of plaintiff's "cabinet."*fn2

According to a signed statement plaintiff prepared following the meeting, Monereau confronted plaintiff with rumors that she intended to remove five assistant principals (Eichenholtz Dec., Ex. J). When plaintiff denied it and asked Monereau for the source of the rumor, Monereau boasted that he had "got[ten] rid" of the two previous principals, and threatened that he would do the same to plaintiff if she attempted "to do anything to us" (Id.). He then stated, "Mr. Gassaway ran a great school and it was like a church in here or a synagogue to you" (Id.) When plaintiff replied that she was not Gassaway, Monereau said, "You are not a person of color" (Id.).

Plaintiff felt "threatened" by these comments, which she characterized as "accusatory remarks, along with a racial slur" (Def. Stmt. at ¶¶ 42-43; Pl. Stmt. at ¶¶ 42-43). Plaintiff claims she was aware, from correspondence which she had read during her years in the Queens Superintendent's office, that Monereau had lobbied for the principal's position in the past (Eichenholtz Dec., Ex. C at 34). Moreover, plaintiff purported to "know for a fact" that the parents wanted Monereau to be the principal of BCHS (Id.).

Immediately after the meeting, plaintiff spoke with Gordon and requested "some direction" on how best to proceed (Def. Stmt. at ¶ 44; Pl. Stmt. at ¶ 44). As a result, Cashin and Gordon investigated the incident, and concluded that Monereau had made "inappropriate, threatening and insubordinate public comments" to plaintiff, including stating that plaintiff was not a "person of color" (Def. Stmt. at ¶ 51; Pl. Stmt. at ¶ 51; Eichenholtz Dec., Ex. K). On October 3, 2003, Cashin reassigned Monereau, removing him from BCHS (Def. Stmt. at ¶ 46; Pl. Stmt. at ¶ 46).

Monereau, who had been working at BCHS for 20 years prior to removal, had ties to the parents and the school community (Def. Stmt. at ¶¶ 47-48; Pl. Stmt. at ¶¶ 47-48). The news of his removal from BCHS was not well received by at least some students and parents. For example, one student drafted a petition which accused plaintiff of firing Monereau because she was jealous that the students applauded him and booed her during an assembly and concluded:

MRS. PLEENER MUST GO!!!!!!!!! LET'S FIGHT TO BRING MR. MONEREAU BACK NOW!!!!!!!!!! (Barkan Dec., Ex. 9). At around the same time, the Executive Board of the BCHS Parent Teacher Association (the "PTA"), sent Cashin a letter dated October 7, 2003, urging Monereau's reinstatement and threatening to "pursue . . . further actions" unless Cashin reconsidered what the PTA termed "an unjust and harsh punishment" (Eichenholtz Dec., Ex. H). The letter further informed Cashin that two meetings had been scheduled -- an "emergency community meeting" on October 9, 2003, at a local church and an "emergency general PTA meeting" on October 15, 2007, at BCHS -- and urged Cashin to attend (Id.). While the letter contrasted Monereau's treatment with that which plaintiff herself had received following her misconduct at JHS, the letter made no express references to plaintiff's race. However, at least one of the fliers circulated in advance of the October 9 meeting accused plaintiff of being a racist (Barkan Dec., Ex. 9).

Cashin became directly involved in the situation at BCHS. Plaintiff claims that, at one point, Cashin told her "she would handle it because she knew how to handle it" (Barkan Dec., Ex 2 at 62).*fn3 As plaintiff testified at her deposition:

This whole thing was taken out of my hands and they, the superintendent's office and the people from the superintendent's office were running the show and so I was at certain points delegated to be just a cog in the wheel and to do what was asked of me. (Id. at 65). Although it is unclear precisely how many times Cashin visited BCHS in the three weeks after Monereau was removed, or precisely what she did there, plaintiff concedes that she was there three times before October 23, 2003, and that she toured the school with plaintiff on one of these visits (Pl. Stmt. at ¶ 69).

Despite the efforts of Cashin and plaintiff, tensions remained high on October 15, 2003, the date of the emergency general PTA meeting. Plaintiff hired a bodyguard for the meeting (Barkan Dec., Ex. 2 at 66; Eichenholtz Dec., Ex. C at 66) and, according to plaintiff, Cashin arranged to have cars parked in the back of the school so that she, plaintiff and other BOE personnel could leave through the back door if necessary (Barkan Dec., Ex. 2 at 67). That day, the New York Post ran a story about the situation at BCHS, describing it as a "racially charged battle" (Barkan Dec., Ex. 10). Channel 7 dispatched a news team to cover the PTA meeting (Barkan Dec., Ex. 2 at 67).*fn4

The meeting did nothing to lessen the tensions. While it is unclear exactly what transpired that evening, both Cashin and plaintiff testified at depositions that Cashin led plaintiff and other BOE personnel out of the room before the meeting was over (Barkan Dec., Ex. 2 at 67-68; Eichenholtz Dec., Ex. D at 43). According to Cashin, she was prompted to do so because plaintiff looked "uncomfortable," and Cashin was "uncomfortable for her" (Eichenholtz Dec., Ex. D at 43). Plaintiff thought it was a mistake to walk out; at her deposition, she testified that she "felt if I walked out there was never any opportunity to have any kind of exchange" (Barkan Dec., Ex. 2 at 67-68). However, she also felt she "couldn't disobey the superintendent" (Id. at 68). The crowd permitted plaintiff, Cashin and her entourage to leave without incident, but exhibit some "negative" reactions (Barkan Dec., Ex. 2 at 68), which made it clear that they "weren't too thrilled" (Eichenholtz Dec., Ex. D at 43).

Thereafter, adults began to picket on a traffic island outside of the school (Barkan Dec., Ex. 2 at 64, 68). At her deposition, plaintiff could not recall exactly what their placards said, although her impression was that "it escalated to get rid of the white principal, walk out until Monereau comes back, bring back Monereau," and slogans of that sort (Id. at 64).

Perhaps in response to these exhortations, the students did, in fact, walk out. Aware that the students intended to set off the fire alarm as a signal to begin the walk out, plaintiff and her fellow administrators attempted to devise a mechanism whereby they could disconnect the alarm without compromising safety (Barkan Dec., Ex. 2 at 70). That effort ultimately proved unsuccessful; the students succeeded in setting off the fire alarms not only on the day of the walk-out, but on at least one other subsequent occasion (Id. at 71).

Plaintiff took action to ameliorate the situation, such as distributing talking points to teachers and "talk[ing] with the kids in small groups" (Barkan Dec., Ex. C at 71-72).*fn5 The students did not walk out again and plaintiff believed that the situation was improving (Barkan Dec., Ex. 2 at 72). However, on October 23, 2003, Cashin met with plaintiff and told plaintiff that she would be removed from her post as principal (Def. Stmt. at ¶¶ 69, 71; Pl. Stmt. at ¶¶ 69, 71). According to plaintiff, Cashin "made a point of saying" that she had already selected a black assistant principal from Brooklyn -- Dr. David Morris -- to replace her (Barkan Dec., Ex. 2 at 73). When asked at her deposition to explain her theory as to why Cashin had reached the decision to replace her with Morris, plaintiff did not mention her own race but speculated that Cashin had used her as a scapegoat:

Q: Do you have any idea why it was that Dr. Cashin had reached this particular decision?

A: Oh, absolutely.

Q: Why is it that Dr. Cashin reached this decision?

A: Because she had told me very clearly that she was able to control and deal with the black population and the parents and that she was going to handle it and then she couldn't and so I was the sacrificial person and I was convinced of that as soon as she told me who the replacement was.

Q: Was there anything that she said or did that led you to believe that you had been chosen as the sacrificial person other than the conversation that you just described to me? A: Other than the fact that I was out and somebody else was in and she was the person who hired him, no, that was enough. She never once said to the parents Ms. Pleener never fired this man or this man is not fired, she never once said this. She never said it's not a black issue versus a white issue. She was going to control what they thought was a black and white issue. She ...


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