The opinion of the court was delivered by: John Gleeson, United States District Judge
FOR ONLINE PUBLICATION ONLY
Plaintiff Victoria Meder, a former public school teacher, is suing the City of New York and the New York City Department of Education ("DOE"), alleging that she was subject to age discrimination during her tenure at P.S. 79 in Queens for the 2004-2005 academic year. She alleges that principal Joel Schuckman, assistant principal Frances Walters, special education teacher Stephanie Lardizzone, and literacy coach Susan Zweroff engaged in an extended course of discriminatory and retaliatory conduct involving excessive monitoring; unjustified reprimands; fabrication of parent and student complaints; undesirable teaching assignments and transfers; a required mental health examination; and imposition of a disciplinary bar to re-employment upon Meder's retirement. Meder claims that this conduct constituted age discrimination and retaliation for prior lawsuits, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34, and the parallel provisions of the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290-301.*fn1 The defendants move for summary judgment on all counts. For the reasons stated below, the motion is granted in part and denied in part.
Victoria Meder, born in 1939, was a teacher in the New York City school system for approximately 17 years. In 2002, she filed a lawsuit in this district against the New York City Board of Education alleging age discrimination while she was working at P.S. 108 in Queens during the 2000-2001 school year. The defendant's motion for summary judgment was granted, and the dismissal of the case was affirmed on appeal. Meder v. Bd. of Educ. (Meder I), 135 Fed. App'x 467 (2d Cir. 2005). In 2005, Meder sued the DOE, alleging that she was subject to age discrimination and retaliation for Meder I while she was working at P.S. 220 in Queens.
Again, the defendants' motion for summary judgment was granted. Meder v. City of N.Y. (Meder II), No. 05 CV 919 (JG), 2007 WL 1231626, at *1 (E.D.N.Y. Apr. 27, 2007).
Meder was transferred to P.S. 79 pursuant to the United Federation of Teachers' ("UFT") transfer plan, with her tenure at P.S. 79 to commence in September of 2004. Meder alleges that while she was on vacation during the summer of 2004, she received numerous telephone calls to her home from Joel Schuckman, the principal of P.S. 79.
Schuckman and Meder met in August and Schuckman told Meder that she would be assigned to an inclusion class*fn3 cooperatively taught with special education teacher Stephanie Lardizzone. Schuckman allegedly asked if Meder was able to handle the work, which he characterized as very demanding, and Meder said she was. Meder Dep. 36, 38. Schuckman allegedly told Meder that the inclusion class was the only opening, but Meder contends that assistant principal Frances Walters later told her that there had been other openings she could have applied for. Id. at 39-40. Assignment to the inclusion class did not affect Meder's salary. Meder alleges that she later learned that assignments to inclusion classes are generally given to junior teachers, and as a senior teacher she had a right to "bump" a more junior teacher and thereby obtain a different assignment by filing a grievance. Meder did not file a grievance regarding this assignment, as she alleges she did not know that she could do so until it was too late. Id. at 41-43.
Meder alleges that she was called into Schuckman's office over the loudspeaker on September 9, 2004, Meder's second day of work and before students had arrived. Id. at 57.
She claims that when she arrived, she was warned that she would face adverse consequences unless she followed the mini-lessons*fn4 as written. Id. Meder alleges that this warning surprised her because she had previously indicated that she was willing to follow these lessons. Id. During the previous school year Meder had received a negative classroom evaluation in connection with a mini-lesson. Defendants allege the evaluation was negative because she failed to follow the mini-lesson, which Meder disputes. Id. at 57-58. Meder also claims that assistant principal Walters repeated Shuckman's warning to Meder in the hallway later that day. Additionally, Meder alleges that at one point she had a discussion with Walters about the inclusion class and Meder referred to her own age in order to convey that she was mature. When Meder said that she was an older teacher, Walters allegedly said "Oh, really now" in a tone that conveyed a message to Meder that her age was a problem. Id. at 62. Meder further alleges that Schuckman would talk about the fact that Meder had initiated a lawsuit on several occasions, and also that she heard Walters, who was having a discussion with a third party in the school's general office, loudly say "some teachers are blackballed" and glance in Meder's direction, which Meder took to refer to her prior lawsuit. Id. at 64-65.
Meder and Lardizzone's relationship as co-teachers was rocky from the start. Meder alleges that Lardizzone interfered with Meder's teaching, failing to coordinate lesson plans and often giving contradictory instructions while Meder was teaching a lesson. Meder also alleges that her property would disappear from the classroom and reappear days later in strange places, and that Lardizzone moved and destroyed her property to antagonize her. Meder alleges that Lardizzone goaded parents to make complaints about Meder, and that Lardizzone wrote complaints about Meder in which she falsified facts regarding Meder's behavior. Id. at 77, 81-83.
Meder complained to Schuckman several times about Lardizzone, alleging that Lardizzone yelled at the children. Around this time, Lardizzone also complained to Schuckman, asserting that Meder yelled at Lardizzone in front of the students and parents and spoke abusively toward the students. Schuckman credited Lardizzone's account of events. Schuckman had a meeting with Meder, Lardizzone, and a UFT representative in order to resolve their dispute. Meder alleges that Schuckman did not allow Meder to speak and threatened her with discipline and unsatisfactory ratings, causing Meder to leave the meeting crying and to say she might have to get legal representation due to her unfair treatment. Meder Decl. ¶ 11. Meder also alleges that Lardizzone apologized and her relationship with Meder improved for a period of time. Meder Dep. 81.
Meder alleges that she was not provided with required teaching manuals early in the school year, that she was the only teacher without the manuals, and that she borrowed manuals from Lardizzone until she eventually received the manuals after several requests. Id. at 66-72. On December 10, 2004, Schuckman formally evaluated a literacy lesson given by Meder, and on December 16, 2004 he rated the lesson unsatisfactory. Meder alleges that this was a false, discriminatory and retaliatory rating. Meder filed a grievance objecting to the evaluation, which was denied. Meder then wrote a letter through her counsel at the time to regional superintendent Judith Chin, making the complaints described above but characterizing it as harassment and not mentioning age discrimination or retaliation.
The defendants allege that Schuckman received several letters from parents complaining that Meder shouted at children or Lardizzone; that Lardizzone informed Schuckman of several incidents of Meder being verbally abusive in class and on one occasion throwing a student's project in the garbage; and that an intern assigned to Meder's classroom reported that Meder was ill-tempered and unprepared. Bardavid Decl. Ex. L. Meder contends that the letters and other reports are fabrications, noting that Schuckman did not conduct a contemporaneous investigation into them. E.g., Meder Dep. 82-84, 91-92, 101-07, 110-11; Meder Decl. ¶¶ 15-18. In addition to first-person reports, Lardizzone elicited reports of incidents from two of Meder's students, which she memorialized in question-and-answer form. Bardavid Decl. Ex. L. In each of these dialogues, the student related, under questioning from Lardizzone, an unpleasant classroom interaction between Meder and the student. Arguing that Lardizzone falsified these dialogues, Meder offers handwritten and illustrated letters of appreciation from the two students in question. Meder Decl. ¶¶ 15-17; Stober Decl. Ex. D.
Schuckman met with Meder and on March 10, 2005 wrote a letter regarding these various third-party complaints. Meder filed a grievance over this letter, which was denied on March 13, 2005, but Meder alleges that the matter went to arbitration, as a result of which Schuckman was required to remove all third-party complaints from her files. Meder Dep. 93. The record does not include any document verifying that arbitration proceedings took place or what their outcome was, but Meder submits as evidence two versions of a letter from Schuckman, both dated March 10, 2005. One of these versions includes reports of third-party complaints, and one does not. Stober Decl. Ex. G. Meder alleges that the latter was redrafted after arbitration. Meder Decl. ¶ 20.
The defendants allege that Schuckman observed Meder continue to be hostile and disrespectful to Lardizzone and her students. On April 7, 2005, Schuckman transferred Meder out of the inclusion class with Lardizzone and into an Academic Intervention Services ("AIS") class*fn5 with the same salary and benefits. Meder claims that she had previously asked Schuckman to transfer her out of the classroom with Lardizzone, but when she accepted the transfer, she did not know that the AIS class was an even worse assignment, one that no other teacher wanted. Meder Decl. ¶ 2; Meder Dep. 159-65. Meder alleges that Schuckman forced her to meet with other teachers during her preparation periods and that she had to prepare for six classes instead of her contractual maximum of five. Meder Decl. ¶ 21. She was assigned to meet with the literacy coach,*fn6 who Meder alleges was abusive and demeaning toward her. Id. ¶ 22.
After several weeks of Meder teaching the AIS class, with Schuckman observing at times, Meder was removed from the class. Instead of being placed in a new class (Meder alleges there was a permanent classroom available, Meder Dep. 177), she was given daily teaching assignments, at the same salary and benefits. Schuckman told her in a letter that he was assigning Meder to be a permanent substitute teacher for the remainder of the school year. Stober Decl. Ex. M, Meder Decl. ¶ 25. Meder alleged that at a meeting on May 4, 2005, Schuckman shouted at her, mentioned her prior lawsuit, and said he was dissolving the AIS class, demoting her to a permanent substitute, and giving her an unsatisfactory rating. Meder Decl. ¶ 25.
Meder filed a grievance regarding the daily assignments, and at a grievance conference on May 24, 2005 she was offered the opportunity to serve as gym teacher. She initially accepted this assignment, but then declined it after several days. At a second-step grievance conference on June 16, 2005, Meder and the administration reached a settlement where the administration agreed not to refer to her as a "substitute" teacher at the school, to remove a letter from Meder's file (Meder alleges it was the one referring to her as a permanent substitute, Stober Decl. Ex. M), and to assign her to a full-time teaching position, which she promised to accept. Meder alleges that the agreement called for Schuckman to put Meder in a classroom, and also alleges that a classroom position was available. Meder Decl. ¶ 26. Despite this agreement, Schuckman continued to give Meder daily assignments for the rest of the year instead of a permanent classroom position. Defendants allege that it would have been too disruptive to create a class or to have Meder work with another teacher that late in the year. Schuckman Decl. ¶ 44.
On May 8, 2005, Schuckman requested that Meder undergo a medical examination, which Meder says was "exclusively a psychological evaluation to determine mental fitness and or dementia." Meder Decl. ¶ 28; see also Bardavid Decl. Ex. R (ordering medical examination for irrational behavior). Meder was tested on May 27, 2005 and found fit for duty. Schuckman gave Meder an unsatisfactory annual performance rating for 2004-2005. Meder alleges that ...