The opinion of the court was delivered by: John Gleeson, United States District Judge
FOR ONLINE PUBLICATION ONLY
Patricia McDonough, a school psychologist, brings this employment discrimination action against her employer, the Nassau County Board of Cooperative Educational Services ("BOCES"), and Dr. Jerry Shiveley, a BOCES District Superintendent. McDonough claims that she was wrongfully terminated from her position with BOCES because of her Catholic faith and in retaliation for engaging in statutorily protected activity. Compl. ¶ 13. She contends that this conduct violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and the New York State Executive Law, Human Rights Law, § 290 et seq. She also asserts a claim pursuant to 42 U.S.C. § 1983, alleging a violation of the First and Fourteenth Amendments to the United States Constitution. Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, the motion is granted in part and denied in part.
The facts of this case, viewed in the light most favorable to McDonough, are as follows. In October 2000, McDonough began working part-time as a school psychologist for BOCES, a local agency that provides shared services to schools in Nassau County. Compl. ¶ 4. Her supervisor, Betsy Slover, assigned McDonough to service three non-public schools, the Davis Renov Stahler Yeshiva ("D.R.S.") of the Hebrew Academy of Long Beach ("HALB") (an all-boys Jewish school), Friends Academy (a Quaker school), and All Saints School (a Catholic school). McDonough Dep. 36-39. Slover retired soon after she assigned McDonough to these schools, and Linda Mancz replaced her as McDonough's supervisor.
McDonough worked at D.R.S. from October 2000 to June 2003. Id. Rabbi Kaminetsky, the Hebrew principal of D.R.S, served as her on-site supervisor. Id. at 40-42. McDonough's duties as a BOCES school psychologist included "conduct[ing] assessments of the students; speak[ing] with faculty members concerning the students' academic or behavioral issues; [performing] consultations about the students' history, i.e., behavior at home; conduct[ing] surveys of students' behavior at home in comparison to their behavior at school; and developing strategies for students to succeed." Defendant's Rule 56.1 Statement ¶ 14; see also McDonough Dep. 54-55. Because McDonough was not familiar with the Torah, Rabbi Kaminetsky instructed her "not to do any counseling with the boys at D.R.S." See Defendant's Rule 56.1 Statement ¶ 13; see also McDonough Dep. 53-54. He also implored her not to wear short sleeves or pants, that is, to dress in a manner consistent with the traditions of orthodox Jews. McDonough, herself a product of a religious education, readily agreed. McDonough Dep. 52.
A. The Problems with Goldberg
While on the premises of D.R.S., McDonough shared an office with Dr. Neil Goldberg, a psychologist employed by HALB, the umbrella organization under which D.R.S. operates. See McDonough Dep. 41. Soon after McDonough's arrival in the fall of 2000, Goldberg shared confidential information and made inappropriate remarks about his patients to her. See Defendant's Rule 56.1 Statement ¶ 15; see also McDonough Dep. 59-63. McDonough alleges that over the next two years, Goldberg continued to make inappropriate remarks regarding his patients. The remarks were of a sexual nature and breached the confidentiality of Goldberg's patients. They also revealed an unorthodox attitude on Goldberg's part toward the sexual conduct (and sexual victimization) of his adolescent clients.McDonough Dep. 61.
These comments by Goldberg culminated in the fall of 2002, when he divulged to McDonough that he had told a child patient from a neighboring yeshiva to "relax. . . I'm not going to touch your penis or shove anything up your ass today." McDonough Dep. 85. McDonough believed that this odd reference to sexually abusing a child might be a foreshadowing of actual child abuse by Goldberg, so she finally reported Goldberg -- to the principal of the child's yeshiva, Rabbi Kov. When Goldberg found out, he complained about McDonough to Allan Weiner (the English principal of D.R.S.). Goldberg also verbally attacked McDonough at D.R.S., and accused her of "trying to ruin his business." See Defendants' Rule 56.1 Statement ¶¶ 23-24. See also Plaintiff's Rule 56.1 Counter Statement ¶ 7. Goldberg threatened to sue McDonough. McDonough Dep. at 98-100.
D.R.S. responded to the revelation of Goldberg's conduct by suspending McDonough. Specifically, Weiner called Mancz and told her to instruct McDonough not to come in for a while, so D.R.S. could evaluate its school psychologist program. Mancz told McDonough not to report to D.R.S. McDonough Dep. at 93-94.
On the same day Weiner suspended McDonough from D.R.S., McDonough told Mancz and other BOCES psychologists about Goldberg's disturbing remark concerning his patient. The reaction by BOCES was tepid; other than Mancz checking to see if Goldberg was a licensed psychologist, BOCES took no action. McDonough Dep. at 90-92.
In late December 2002, McDonough was asked to return to D.R.S. along with Mancz for a meeting with Rabbi Kaminetsky. McDonough Dep. 98. McDonough expected they would discuss Goldberg's conduct -- both the disturbing remarks McDonough had reported and the expression of concern by other rabbis over Goldberg's inappropriate remarks to teenage boys. McDonough Dep. 98-99. There was no such discussion and no resolution of the Goldberg issue. Instead, Mancz refused to support McDonough's complaints about Goldberg, and even reproached McDonough for wearing a red jacket to a Jewish school during Christmas week. Id. at 101.
B. The Rejection of McDonough by D.R.S.
In May of 2003, Rabbi Kaminetsky informed McDonough that he did not want her to return to D.R.S. Kaminetsky had no issues with McDonough's work. To the contrary, he described it as perfect, and much appreciated by the school. McDonough Dep. 103. However, the problem between Goldberg and McDonough had become too much of a concern for Kaminetsky, and he was not prepared to fire Goldberg, so McDonough had to leave. Defendant's Rule 56.1 Statement ¶ 30; Kaminetsky Let. Ex. F.
Once Kaminetsky made that decision, BOCES was not in a position to require D.R.S. to retain McDonough as its school psychologist. McDonough Dep. 109; see also Defendants' Rule 56.1 Statement ¶ 32. Adapting to Kaminetsky's wishes, Mancz hired an orthodox Jew to serve in McDonough's position at D.R.S. Id. at 110.
C. The Unsuccessful Effort to Place McDonough
In the summer of 2003, McDonough, having been rejected by D.R.S., was in need of placement, and Stella Kirks Abraham ("S.K.A.") was in need of a psychologist. McDonough Dep. 108. Mancz recommended that BOCES place McDonough there. Id. However, S.K.A. was a sister school of D.R.S., and both schools were part of HALB. And Rabbi Glass, the Director of all of the HALB schools, conveyed a message to BOCES through S.K.A.'s principal that McDonough would not even be allowed on the property.*fn1 Id.
McDonough became concerned that her reputation was being compromised in the orthodox Jewish community and elsewhere in the larger "Five Towns" community in which it was situated, where most of the BOCES assignments were made. Mancz observed to McDonough, "I don't know what we are going to do with you."
McDonough contends that BOCES soon decided what to do with her: it would manufacture a basis to fire her.
D. The Campaign to Terminate McDonough
McDonough alleges that BOCES built a bogus record to justify firing her.
The real reason for firing her, she claims, was to placate the religious schools BOCES served. But for the fact that she was Catholic, McDonough claims, she would not have been terminated by BOCES.
There were three components of the alleged campaign to fire McDonough. Each is discussed below.
1. Poor Judgment in Communicating with Private Schools and Colleagues
In October 2003, Mancz and her supervisor, Dr. Marguerite Costello, convened two meetings to address McDonough's alleged inappropriate communications with the local schools and with her colleagues. First, in a letter dated September 26, 2003 from Linda Mancz, McDonough was summoned to a meeting for Tuesday, October 7, 2003 "to discuss [her] professional conduct regarding communications with private schools and school districts." Mancz Let. Ex. D. A few weeks later, Linda Mancz called another meeting for October 29, 2003, ...