MEMORANDUM-DECISION AND ORDER*fn1
In August 2004, Plaintiff Mary Frances Casale ("Plaintiff" or "Casale") brought this claim against the Enlarged City School District of Troy, NY ("District"), members of the Board of Education of that school district and several of its employees ("Defendants"). Dkt. No. 1. Plaintiff asserts violations of constitutional and statutory rights, relating to retaliation against Plaintiff for reporting misbehavior by a teacher. Id. Plaintiff alleges that Defendants' actions constituted retaliation in that they transferred her to a different position, denied her additional sick leave and denied an extension of her leave of absence. On July 13, 2005, the Court granted in part Defendants' Motion to dismiss Plaintiff's Complaint. Dkt No. 40. The claims that remain against the District, Board of Education and the individual Defendants in their official capacities are Plaintiff's first and sixth causes of action, claims that she was transferred and denied an extended leave of absence in retaliation in violation of Title IX, Section 1681 et seq., of Title Twenty (20) of the United States Code. Also, Plaintiff's fifth and ninth causes of action, claims under New York Human Rights Law ("NYHRL") that she was denied additional sick leave and an extra leave of absence, remain against the individual Defendants in the individual capacities only. Plaintiff's First Amendment claim of retaliation, her tenth cause of action, also remains against all Defendants. Order (Dkt. No. 40) at 18.
Currently before the Court is Defendants' Motion for summary judgment on the remaining claims. Dkt. No. 63.
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits...show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56 (c). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a moving for summary judgment, the court must view the evidence and draw reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 127 S.Ct. 1769, 1774 (2007).
B. Violations of New York's Human Rights Law
Plaintiff's fifth and ninth causes of action assert that she was discriminated against by the individual Defendants because of her disability, in violation of NYHRL, in that she was denied use of a sick leave bank and denied an extension of her leave of absence. Complaint (Dkt. No. 1) at ¶¶ 95-99, 129-133. Under NYHRL, it is "an unlawful discriminatory practice" for an employer to discriminate against an individual in the terms, conditions or privileges of employment because of the individual's disability, among other things. N.Y. Exec. Law § 296(1)(a). However, in all aspects of NYHRL dealing with employment, the term disability "shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held." N.Y. Exec. Law § 292 (21). Plaintiff notes in her Complaint that, as she argued successfully to the Social Security Administration, she has been totally unable to work from August 6, 2003 to the present. Complaint (Dkt. No. 1) at ¶ 80. Plaintiff first requested accommodation in January 2004. Id. at ¶¶ 76-79.
NYHRL does not protect an employee who "even upon the provision of reasonable accommodation, is physically unable to perform his or her duties." N.Y. Exec. Law § 296 (3-a)(g). Dantonio v. Kaledia Health, 732 N.Y.S.2d 322, 323 (N.Y.App. Div., 4th Dept. 2001). See also Hendler v. Intelecom USA, Inc. 963 F.Supp. 200, 210 (E.D.N.Y. 1997). In light of Plaintiff's own admissions of total disability, she is not covered by NYHRL. Also, as Defendant correctly points out, Plaintiff's successful argument to the Social Security Administration that she is totally disabled and unable to work precludes her claims under NYHRL. Mem. of Law in Supp. of MSJ (Dkt. No. 63) at 12-14. Accordingly, Plaintiff's fifth and ninth causes of action must be dismissed as to all Defendants.
C. Retaliation Claims under the First Amendment
Plaintiff's tenth cause of action asserts a violation of her rights under the First Amendment of the United States Constitution, pursuant to Section 1983 of Title 42 of the United States Code. Plaintiff alleges that the actions taken against her by Defendants constituted retaliation for complaints she made and were in violation of her constitutional right to free speech. Complaint (Dkt. No. 1) at ¶¶ 136-146.
To survive a motion for summary judgment on a retaliation claim based on the First Amendment, a plaintiff must show (1) that she engaged in protected First Amendment activity, (2) that she suffered an adverse employment action and (3) that there was a causal connection between the protected activity and the adverse employment action. Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007) (citing Cotarelo v. Vill. of Sleepy Hollow Police Dep't, 460 F.3d 247, 251 (2d Cir. 2006)). "If a plaintiff makes a sufficient showing of each of these elements, summary judgment is not appropriate unless the defendant establishes as a matter of law that he would have taken the same adverse employment action even absent the protected conduct." Id.
1. Did Plaintiff Engage in Protected Speech?
The speech at issue is Plaintiff's role in an investigation of the allegedly inappropriate behavior of a teacher at Doyle Middle School. Both parties agree that Plaintiff did not initiate the complaint, but was interviewed as a witness after another teacher's aide, Carole Lockrow, complained. Plntf's Stmnt of facts (Dkt. No. 78) at ¶¶ 30-45. Defendant argues that, because Plaintiff did not make any report about the behavior until she was approached by Defendants, her speech was not protected, because it was merely part of her job responsibilities. Motion for Summary Judgment (Dkt. No. 63) at 16-17. In contrast, Plaintiff asserts that the speech was protected because she was not ordered to speak and it was a matter of public concern.
Public employees enjoy protection from retaliation for the exercise of their first amendment rights. Garcetti v. Ceballos, 126 S.Ct 1951, 1957 (2006). However, this protection is limited: employees' speech is only protected if the employee spoke as a citizen, on a matter of public concern. Id. If the speech is protected, there is still no constitutional violation if there was an adequate justification for the employer's action, such as if the injury to the employer from the speech outweighs the employee's interest in expressing herself. Id. (noting that "[g]overnment employers, like private employers, need a ...