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Shums v. New York City Dep't of Education

March 17, 2009

SOFIA SHUMS, PLAINTIFF,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION AND MARILYN ALESI, DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

OPINION AND ORDER

In this lawsuit, plaintiff Sofia Shums, a former teacher of English as a Second Language ("ESL") at P.S. 129 in Queens, alleges that defendants New York City Department of Education ("DOE") and Marilyn Alesi ("Alesi"), the principal of P.S. 129, illegally terminated her from her teaching position because of her national origin and in retaliation for a letter plaintiff wrote that was protected speech under the First Amendment to the United States Constitution. In her amended complaint, plaintiff claimed violations of 42 U.S.C. § 1983 ("Section 1983"), Title VII of the Civil Rights Act of 1964 ("Title VII"), and city and state anti-discrimination laws. In a decision dated March 31, 2006, the court dismissed plaintiff's city and state law discrimination claims, as well as plaintiff's Title VII claim against Alesi.*fn1 Shums v. New York City Dep't of Educ., No. 04-CV-4589, slip. op. (E.D.N.Y. Mar. 31, 2006). Defendants now move for summary judgment on plaintiff's remaining claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is granted in its entirety.

I. Background

Plaintiff was born in India and is of Indian national origin. Plaintiff is Muslim and her native language is Urdu. Prior to moving to the United States in 1973, plaintiff received two Bachelor's and two Master's Degrees from Bombay University in India. Plaintiff received Master's Degrees in Guidance and Counseling from Central Michigan University in 1974, and in Teaching English to Speakers of Other Languages from Michigan State University in 1982. Plaintiff also worked on a doctorate in English at Michigan State University, but did not receive a doctorate degree. In 1988, plaintiff commenced employment with the Board of Education of the City New York, now operated as defendant DOE. Initially hired as a substitute, plaintiff obtained her permanent teaching license as an English as a Second Language ("ESL") teacher in 1989. Between 1989 and 1998, plaintiff worked at several different DOE-operated schools in Brooklyn until June 1998, when plaintiff applied for, and received, a transfer into School District 25, which covers parts of Queens.

Within the first few months of the 1998-99 school year, plaintiff was assigned to teach ESL in two elementary schools, P.S. 29 and P.S. 129. Plaintiff continued to split her time between the two schools during the 1999-2000 school year, when Alesi became the principal of P.S. 129. Beginning with the 2000-01 school year and lasting until her suspension at the end of the 2002-03 school year, plaintiff taught ESL full time at P.S. 129. The incidents underlying this litigation all occurred at P.S. 129 between 1999 and 2003, while plaintiff served as an ESL teacher, and Alesi served as principal.

A. The 1999-2000 School Year

In September 1999, Alesi was appointed the acting principal of P.S. 129. At that time, and during the entire 1999-2000 school year, plaintiff taught ESL at P.S. 129 during the morning, and at P.S. 29 during the afternoon. Plaintiff states that her first negative encounter with Alesi occurred in March 2000, while plaintiff was reviewing student test papers in the faculty lounge at P.S 129. Plaintiff states that Alesi entered the lounge, stood over her, and asked in an accusatory tone, "What are you doing, Ms. Shums?" According to plaintiff, after she explained to Alesi that she was transferring student answers onto the answer sheet because some of her younger students were unable to transfer the answers themselves, Alesi turned around and left the faculty lounge without saying anything in response. Plaintiff states that this exchange upset her very much, and that she was "absolutely taken aback" by Alesi's inquiry because she felt that Alesi was accusing her of something of which she was not guilty. (Shums Dep. 91.)

On April 5, 2000, Alesi performed a classroom observation of plaintiff's kindergarten group. Pursuant to DOE policy, before observing the lesson, Alesi held a pre-observation conference with plaintiff during which plaintiff described her intended lesson plan. Alesi's report from the observation, which was sent to plaintiff and placed in her personnel file, commended certain aspects of plaintiff's lesson and recommended improvement in others. Under the "Commendations" section, Alesi praised plaintiff's friendly relationship with her students, her incorporation of poetry into her lessons, and her use of flip-books as learning aides. Under the "Recommendations" section, Alesi stated:

While I commend you for using poetry, it would have been more beneficial for the children to look at a picture book while you read. Some of the vocabulary in the poem might have been too difficult for the children to comprehend, without pictures.

It is important for children without a good command of the English language to speak to and with each other. Too many of your questions are of the 'Yes-No' variety. Children should be encouraged to answer in full sentences, and relate to each other.

You did most of the talking during the lesson. The children need to respond and have time to think of a response to questions. Multiple questions can be confusing. A simple direct question, eliciting a response in sentence form, is necessary. (Barnett Decl. Ex. E.) Alesi's observation of plaintiff led her to conclude that plaintiff had given her students "a marginally satisfactory lesson, which merits a satisfactory rating." (Id.) In addition to rating plaintiff's April 5 lesson as "satisfactory," Alesi gave plaintiff an overall satisfactory rating for the 1999-2000 school year.

B. The 2000-01 School Year

Plaintiff began teaching full-time at P.S. 129 at the beginning of the 2000-01 school year. Sometime in October 2000, plaintiff attended a meeting with Alesi and Kathryn Mamounis ("Mamounis"), the ESL supervisor for District 25. At that meeting, Alesi and Mamounis criticized plaintiff's work and teaching skills. According to plaintiff, Alesi and Mamounis spent the entire meeting verbally "berating" and "attacking" plaintiff, and telling her that she "was not fit to be an [ESL] teacher." (Shums Dep. 244-45.) Either at the meeting, or shortly thereafter, Alesi and Mamounis presented plaintiff with a professional development plan. The provisions of the professional development plan were detailed in a letter, dated October 25, 2000, sent from Alesi to plaintiff and placed in plaintiff's file. The letter indicated that plaintiff was to meet each week with either Alesi or Dr. Lyn Schecter, the assistant principal of P.S. 129, to review plaintiff's lesson plans and classroom materials for age and reading level appropriateness. In the letter, Alesi also indicated that she would "set up intervisitations and staff development both within [P.S. 129] and other schools to help [plaintiff] observe model lessons." (Barnett Decl. Ex. G.) The letter further instructed plaintiff to "focus on reading, writing, listening, speaking and viewing in a differentiated setting with materials appropriate to the level of proficiency of the students." (Id.)Pursuant to the professional development plan, plaintiff observed a lesson given by an ESL teacher at another school.

Also in October 2000, plaintiff attended a staff development presentation in the library at P.S. 129. According to plaintiff, because of the library's limited space, she was forced to sit in a position during the presentation that did not directly face the presenter. To avoid craning her neck, plaintiff did not keep her eyes on the presenter throughout the entire presentation, and at times, listened to the presentation with her eyes closed. Plaintiff states that Alesi spoke with her shortly after the presentation because Alesi had received a complaint that plaintiff had closed her eyes during the presentation. According to plaintiff, Alesi told plaintiff that it was inappropriate for her to close her eyes when she was being spoken to, and that Alesi would be observing plaintiff's class to ensure that plaintiff's students were following the "norms." Plaintiff alleges that over the next several months, Alesi repeatedly directed her to look at Alesi when Alesi was speaking to her and made statements to the effect of: "here we look people in the eye when we speak" and "[t]his is how you to do it here . . . you must look a person in the eye when a person is speaking to you." (Shums Dep. 234.) Plaintiff also alleges that Alesi explicitly asked plaintiff whether plaintiff was capable of teaching ESL to her students if plaintiff did not herself follow the cultural norm of making eye contact. Plaintiff claims that these type of comments continued until February 2001, when in a post-observation conference, Alesi asked plaintiff why she was turning her face away from Alesi, and plaintiff responded-"[i]n an attempt to get [Alesi] to stop"-that it was against her religious belief to make eye contact. (Shums Aff. ¶ 14.) After plaintiff offered this explanation, Alesi ceased commenting to plaintiff on the subject of eye contact.

On April 26, 2001, plaintiff met with Alesi and a union representative to investigate an allegation of corporal punishment made against plaintiff by a parent. Specifically, the parent alleged that plaintiff threw books at children and physically put children into seats. According to a letter dated April 27, 2001 sent from Alesi to plaintiff, plaintiff explained at the meeting that she occasionally "need[ed] to physically direct students to their seats for safety reasons and because of the fact that many children do not understand the English language." She added, "the small size of [her] classroom sometimes cause[d] [her] to toss books onto students' desks." (Barnett Decl. Ex. I.) After meeting with plaintiff and conducting an investigation, Alesi concluded that corporal punishment did not occur. (Id.) In her letter to plaintiff, however, Alesi did express concern about any use of physical contact by plaintiff to deal with student misbehavior. Alesi encouraged plaintiff to avail herself of professional development opportunities offered by the school district in the areas of behavior management. The letter also directed plaintiff to make arrangements to use the student lunchroom or another teacher's classroom to teach her second grade group, as plaintiff had stated that size of her current classroom was too small. (Id.)

C. The 2001-02 School Year

Shortly after the 2001-02 school year began, Alesi sent plaintiff a schedule setting forth the instruction times for plaintiff's students. After receiving the schedule, plaintiff complained to Assistant Principal Karen Zuvic ("Zuvic") that the schedule did not allow for sufficient time to provide state-mandated services to the ESL students. Several days later, Alesi prepared a second schedule. This second schedule appeared to provide the requisite time for ESL instruction, although plaintiff was concerned that it did not account for the time needed to transport students from their regular classrooms to the ESL classroom. On or about October 3, 2001, plaintiff asked Zuvic for additional chairs for one of her classes because the second schedule was unclear to her. After this request, Alesi called plaintiff into her office and, according to plaintiff, Alesi then held the schedule up in front of plaintiff, "jabbed her finger on the paper close to [plaintiff's] chest," and said something to the effect of, "You can't even read. You don't know how to read." (Pl. Am. Compl. ¶ 13; Shums Aff. ¶ 20.)

1. Plaintiff's Letter of October 14, 2001

Over the next several days, plaintiff followed Alesi's teaching schedule, but quickly became concerned that her students were not receiving the requisite amount of ESL instruction. To highlight these concerns, plaintiff wrote a letter, dated October 14, 2001, that was addressed to Mamounis, and copied to Alesi and Michelle Fratti, the Superintendent of District 25. In sum, the letter stated that the schedule did not provide plaintiff's students with the legally required amount of instruction because it failed to account for the time it took to pull students out of their regular classrooms and situate them in plaintiff's instruction area. Additionally, plaintiff complained in the letter that the schedule required her to give up part of her lunch period in order to transport students back to their classrooms, she was not allowed an administrative period, and the assigned classroom was too small for her and her students' needs. In her deposition, plaintiff stated that her duties as an ESL teacher required her to ensure that her students received the requisite amount of state-mandated ESL instruction. In an affidavit submitted in opposition to the present motion, plaintiff clarifies that, although she saw it as her "moral duty" to help her students in any way that she can, she "was never advised by the defendants that [she] was required as part of her official duties to report violations of the [ESL program requirements] to the District's central administration." (Shums Aff. ¶ 27.)

In response to plaintiff's letter, Mamounis and Alesi conducted a meeting with plaintiff on October 22, 2001 to discuss plaintiff's concerns. On October 28, 2001, Alesi sent plaintiff a letter addressing those concerns. In pertinent part, the letter stated that: (1) Mamounis would provide plaintiff with a staff developer to help organize plaintiff's program and minimize the amount of time that it took plaintiff to pick up her students from their regular classrooms, (2) plaintiff could use a larger classroom on the first floor of the building to accommodate her larger classes, (3) plaintiff could drop off some of her students with a lunchroom aide, (4) plaintiff could use an adjusted dismissal time for certain students, (5) plaintiff, as an ESL teacher, was not entitled to an administrative period, and (6) Zuvic would assist plaintiff in organizing her classroom. In her deposition, plaintiff acknowledged that Alesi's letter addressed many of the concerns that she had raised in her October 14 letter. In addition to Alesi, Mamounis and Anne Marie Iannizzi ("Iannizzi"), Special Assistant to Superintendent Fratti, also responded to plaintiff's October 14 letter, and indicated that plaintiff's concerns more appropriately should have been addressed to plaintiff's immediate supervisors at P.S. 129, such as Alesi and Zuvic.

In her deposition, Alesi stated that when she first received plaintiff's letter, she felt that it was "an exaggerated letter with many inconsistencies and certainly a lot of things that she ha[d] said in the past . . . regarding an administrative period which we'[d] already addressed." (Alesi Dep. 162.) Alesi also stated that plaintiff's letter was "outrageous," "comical" and "invalid in many ways." (Id. at 73.) In the end, however, Alesi stated that "[t]he letter was something that eventually turned out to be a good thing because . . . because we got another [ESL teacher] in the building." (Id. at 161.) Alesi claims that she expressed this latter sentiment to plaintiff, although plaintiff disagrees that such an exchange occurred.

2. The November 9, 2001 and February 15, 2002 Classroom Observations

On November 9, 2001, Mamounis conducted a formal classroom observation of one of plaintiff's instruction periods. Plaintiff states that although Mamounis had never formally observed a lesson of hers before, Mamounis had informally observed one of plaintiff's lessons at P.S. 29 during the 1999-2000 school year. Although it was not at all unusual for Mamounis, who was plaintiff's supervisor, to observe a teacher's lesson, Mamounis stated that the November 9 observation was performed at Alesi's request. (Mamounis Dep. 853-54.)

In her report from that observation, dated December 10, 2001, Mamounis commended plaintiff for using a variety of reading materials in her lesson and using certain visual aids, but criticized plaintiff for failing to follow her intended lesson plan, failing to elicit meaningful answers from her students, using ineffective visual aids, and asking students to compare books they had never read. Mamounis's report also indicates that at her post-observation conference with plaintiff, plaintiff invited Mamounis to observe another of her lessons so that Mamounis would have a more accurate impression of plaintiff's teaching abilities. According to the report, when Mamounis suggested that plaintiff could work with the District's ESL staff developer to prepare for the next lesson that Mamounis would observe, plaintiff replied that she was "a skilled ESL teacher and did not need assistance, but would do whatever was required." (Barnett Decl. Ex. N.) Mamounis ultimately concluded that plaintiff had given an unsatisfactory lesson, and indicated that she would meet with Alesi and plaintiff on December 18, 2001, to design a plan to assist plaintiff in preparing and implementing an instructional program that would meet the needs of plaintiff's students more effectively. Plaintiff states that when she attended that meeting and attempted to take notes, Alesi yelled at her to put down her pen and stop writing. Plaintiff claims that when she insisted on taking notes, Alesi responded with words to the effect of, "I'm going to call my attorney. And if you misquote me, I will sue you." (Shums Aff. ¶ 30.)

Following the December 18 meeting, Alesi and Mamounis developed a Professional Development Plan for plaintiff that identified weaknesses in plaintiff's teaching performance and made suggestions for improvement. This plan was communicated to plaintiff in a letter sent by Mamounis dated January 7, 2002. The letter indicated that the District's ESL specialist would be assigned to work with plaintiff in weekly meetings to assist plaintiff in planning her lessons. The letter indicated that the focus of these meetings would be on "differentiating instruction to meet the needs of [plaintiff's] English language learners (ELLs)" and creating "strategies for facilitating the development of listening and speaking skills for ELLs." (Barnett Decl. Ex. O.) A subsequent undated summary of the Professional Development Plan indicates that plaintiff attended four such meetings, and was absent for one. Mamounis's January 7 letter additionally instructed plaintiff to attend several school-sponsored educational workshops and notified plaintiff that Mamounis would conduct a formal observation of plaintiff's class on February 15, 2002.

Mamounis performed the classroom observation on February 15, 2002, and detailed her findings in a report dated February 21, 2002. (Barnett Decl. Ex. Q.) In that report, Mamounis commended plaintiff for her use of visual aids, her adaptation of the lesson to support students of varying levels of language proficiency, and her adaption of reading materials to support English language learners. Mamounis also made several suggestions in the report regarding time management and ...


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