The opinion of the court was delivered by: Conner, Senior D.J.
Plaintiff, Ertha Augustin, brings this action pursuant to 42 U.S.C. § 1983 and New York State Executive Law § 296 against Annette Saturnelli ("Saturnelli") and Joan Goudy-Crosson ("GoudyCrosson") in their individual capacities and the Enlarged City School District of Newburgh (the "District," and together with Saturnelli and Goudy-Crosson, "defendants"). Plaintiff alleges that defendants terminated her employment because of her national origin, in violation of her right to equal protection as guaranteed by the Fourteenth Amendment of the United States Constitution and New York state law. Defendants now move for summary judgment. For the reasons set forth below, defendants' motion is granted in part and denied in part.
Unless otherwise indicated, the following facts are undisputed.
Plaintiff, a female teacher of Haitian descent, was employed by the District as a full-time probationary elementary education teacher in or about the beginning of January 2003. (Defs. R. 56.1 Stmt. ¶ 1.) Goudy-Crosson is a long-tenured administrator in the District. (Id. ¶ 67.) Saturnelli was the Superintendent of Schools for the District at all relevant times. (Saturnelli Aff. ¶ 1.)
II. Plaintiff's Experience Prior to Her Employment at West Street and St. Francis
Prior to plaintiff's full-time employment with the District, plaintiff was employed as a substitute teacher by the District. (Defs. R. 56.1 Stmt. ¶¶ 3-4; Pl. R. 56.1 Reply Stmt. ¶ 3.)
Plaintiff's work performance as a substitute teacher is in dispute: defendants contend that the District's Human Resources Department ("Human Resources") received many complaints about plaintiff and that teachers requested that plaintiff not be assigned to their classes (Defs. R. 56.1 Stmt. ¶ 5), while plaintiff contends that she was "kept busy [as] a substitute" and was frequently asked to teach at several different schools (Pl. R. 56.1 Reply Stmt. ¶ 5).
From January 2003 to June 2003, plaintiff worked as a full-time teacher at the District's Center Based program at the Calvary School for students serving suspensions from school.*fn1 (Defs. R. 56.1 Stmt. ¶¶ 6, 8.) In June 2003, plaintiff was assaulted by a student and took a medical leave of absence until September 2004. (Id. ¶¶ 7-8; Pl. R. 56.1 Reply Stmt. ¶¶ 7-8.) Since plaintiff's assault, she has suffered from Post Traumatic Stress Disorder on a continuous basis and has been treated by Dr. Michele Winchester-Vega ("Winchester-Vega"), a certified social worker. (Defs. R. 56.1 Stmt. ¶ 9 (citing Rushfield Aff'm, Tr. Excerpts (Winchester-Vega Dep. at 8-9).)*fn2
In August 2004, Winchester-Vega advised the District that plaintiff could return to work on a full-time basis and plaintiff was assigned to the New Windsor Elementary School ("New Windsor") at the start of the 2004-05 school year. (Defs. R. 56.1 Stmt. ¶¶ 13, 17.) Plaintiff's work performance at New Windsor is also in dispute. Defendants contend that the Principal of New Windsor, Roberto Calderin ("Calderin") and others, including the assistant principal, observed that plaintiff had "continuing serious problems with classroom management." (Id. ¶ 19.) However plaintiff refutes this, citing her own testimony and directing the Court to written reports by Calderin and the assistant principal that do not reflect such a negative review of her performance. (Pl. R. 56.1 Reply Stmt. ¶ 19.)*fn3 At some point at the beginning of the school year, plaintiff was assigned a mentor. (Defs. R. 56.1 Stmt. ¶ 32; Pl. R. 56.1 Reply Stmt. ¶ 32.) The parties dispute the reason for this assignment; defendants contend that she was assigned a mentor because of the alleged problems with her work performance while plaintiff contends it was routine for a teacher in plaintiff's position to have a mentor. (Defs. R. 56.1 Stmt. ¶¶ 31-32; Pl. R. 56.1 Reply Stmt. ¶ 31.)
Calderin received complaints about plaintiff from parents of plaintiff's students; issues of fact exist regarding whether those complaints were discussed with plaintiff and plaintiff disputes the merits of the criticisms in the complaints. (See Defs. R. 56.1 Stmt. ¶¶ 21, 23, 25, 33, 49; Pl. R. 56.1 Reply Stmt. ¶¶ 21, 22, 23, 25, 33, 49.) Calderin informed Mary Ellen Leimer ("Leimer"), the District's Executive Director for Human Resources "throughout all but the last months of plaintiff's employ by the District," that parents of plaintiff's students were voicing complaints about plaintiff's performance and that Calderin had similar concerns about plaintiff. (Defs. R. 56.1 Stmt. ¶ 36; Leimer Aff. ¶ 1.)*fn4
In December 2004, plaintiff was reassigned to her mentor's class so that, according to defendants, she could "develop and improve necessary skills." (Defs. R. 56.1 Stmt. ¶ 48.) Plaintiff contends that her mentor was openly hostile to her and that Calderin failed to intervene to address the hostility. (Pl. R. 56.1 Reply Stmt. ¶ 48.) Plaintiff believed and continues to believe that Calderin's treatment of her and the decisions he made concerning her at New Windsor were based on her race. (Defs. R. 56.1 Stmt. ¶ 51.) Plaintiff testified that, in December 2004, she called Saturnelli's office to complain that Calderin was mistreating her because she was black; she told the secretary that she was treated inhumanely and that "[she] was a victim once, they failed to protect [her], and [she] refused to be a victim again." (Rushfield Aff'm, Tr. Excerpts (Augustin Dep. at 163:14-164:10).)
Shortly after plaintiff was reassigned to her mentor's classroom, she was transferred, at her request, to the Center Based program, then located at the West Street School ("West Street"). (Defs. R. 56.1 Stmt. ¶ 58.)
III. Plaintiff's Employment at West Street and St. Francis
In March 2005, plaintiff commenced employment at the Center Based program at the West Street School. For the 2005-06 school year, the District's Center Based program was moved from West Street to St. Francis. (Id. ¶ 67.) Goudy-Crosson, who administered the Center-Based program for the 2003-04, 2004-05 and 2005-06 school years, was the building administrator and principal for St. Francis. (Id.)
Prior to this action, Goudy-Crosson, an African-American female, had never been accused of having a bias against any person because of his or her national origin. (Id. ¶ 69.) In or about September 2001, while she was the principal of the District's Heritage Junior High School ("Heritage School"), Goudy-Crosson interviewed and then recommended Daceta Simpson ("Simpson") for initial hire by the District as a special education teacher at the Heritage School. (Id. ¶ 71.) On Goudy-Crosson's recommendation, in or about October 2001, Simpson was hired by the District and assigned to work under Goudy-Crosson at the Heritage School. (Id.) Simpson was Jamaican, "with a distinctive Carribean accent and dialect." (Id.) Subsequently, the District denied tenure to and terminated Simpson, however Goudy-Crosson played no role in this decision, as Simpson was not working in any school that Goudy-Crosson administered, nor was Simpson otherwise under Goudy-Crosson's supervision in Simpson's last few years of employment by the District. (Id. ¶ 72.)
Pursuant to the recommendation process in the District, Human Resources makes a recommendation about whether a teacher should be granted tenure or terminated to the Superintendent of Schools ("Superintendent"), who usually relies upon that recommendation in making her own recommendation to the District's Board of Education ("Board") without performing any independent investigation. (Id. ¶ 73.) If a teacher requests the reasons for an adverse recommendation by the Superintendent, Human Resources provides the Superintendent with those reasons and drafts the Superintendent's response to the teacher, which response the Superintendent is required to provide, pursuant to the Education Law. (Id.) This correspondence and any response by the teacher are provided to the Board for its consideration in voting on whether or not to adopt the Superintendent's recommendation. (Id.)
Plaintiff's initial three-year period as a full-time tenure-track teacher was to conclude on or about December 31, 2005. (Id. ¶ 74.) By that date, under the Education Law, the Board would have to either grant tenure to her, based on the Superintendent's recommendation, or terminate her employment by a vote. (Id.)
Prior to the commencement of the 2005-06 school year, Leimer and the Assistant Superintendent for Human Resources, W. John Knight ("Knight"), decided that, in light of the limited period of time (approximately twelve months) in which plaintiff was actually functioning as a full-time teacher for the District, as well as her "troubled history" as a substitute teacher, the "serious performance problems" she demonstrated at New Windsor, as reported by Calderin, and the multiple parental complaints received about plaintiff while she worked at New Windsor, they could not recommend to the Superintendent that plaintiff be granted tenure.*fn5 (Id. ¶ 75.) According to defendants, Knight and Leimer discussed with Saturnelli a recommendation for denial of plaintiff's tenure and termination of her employment effective December 31, 2005. (Id. ¶ 76.) They also discussed a concern that the District had never adopted a written Educator Improvement Plan ("EIP")*fn6 for plaintiff and that the lack of such a plan might entitle plaintiff to a fourth year of probation before they could recommend denial of tenure and termination.*fn7 (Id.) They decided to offer to plaintiff a fourth year of probation and to adopt an EIP for plaintiff so that the lack of an EIP would not constitute a potential impediment to a future recommendation to deny tenure to plaintiff and terminate her employment. (Id. ¶ 77.)
By letter dated August 24, 2005, Leimer presented to plaintiff an extension agreement (the "agreement") prepared by counsel for the District with instructions that plaintiff must sign the agreement by August 31, 2005. (Id. ¶ 78.) According to defendants, plaintiff avoided signing the agreement by the stated deadline and Leimer instructed Goudy-Crosson on more than one occasion at the beginning of the school year to direct plaintiff to contact Leimer concerning the unexecuted agreement; Goudy-Crosson did as she was instructed. (Id. ¶¶ 79-80.) Plaintiff explains that when she received the agreement, she noticed an error "regarding the date," about which she told Leimer, and that she did not "avoid" signing the agreement but waited to sign it until the error was corrected. (Augustin Aff. ¶ 7.) Leimer, Saturnelli and Knight had agreed among themselves that if plaintiff did not execute the agreement, the Superintendent would recommend that plaintiff be denied tenure and terminated, effective no later than December 31, 2005.*fn8 (Defs. R. 56.1 Stmt. ¶ 81.)
On September 8, 2005, plaintiff and Goudy-Crosson had a discussion concerning the need for plaintiff to contact Leimer about the agreement. (Id. ¶ 82.) According to defendants, during that conversation, Goudy-Crosson told plaintiff that she was simply giving plaintiff "the directive to contact Leimer that  Goudy-Crosson had received from Leimer" and in response, plaintiff stated "I may be an immigrant, but I'm not stupid." (Id.) According to Goudy-Crosson, plaintiff's statement -- "I may be an immigrant, but I'm not stupid" -- was the only time that the term "immigrant" was stated by either plaintiff or Goudy-Crosson during any conversation between them, and Goudy-Crosson responded to it by stating: "'Ms. Augustin, I am not the enemy here, I am relaying a directive to you from my supervisor.'" (Id. ¶¶ 83-84.) However, plaintiff testified that she commented on her immigrant status and intelligence in response to a comment that GoudyCrosson made to her, while the two were in Goudy-Crosson's office, that Goudy-Crosson did not want an "immigrant" in plaintiff's classroom and preferred to have someone named Jon Hunt in the classroom, an individual who had taught in that classroom in the past (the "immigrant remark"). (Watkins Aff'm, Ex. 21 (Augustin Dep. at 315-16, 322-23).)*fn9
In a "Letter of Critical Evaluation" to plaintiff, dated November 2, 2005, Goudy-Crosson cited her interaction with plaintiff wherein plaintiff's status as an immigrant was mentioned and admonished plaintiff that her statement was "inappropriate, argumentative and unprofessional." (Defs. R. 56.1 Stmt. ¶ 82; Goudy-Crosson Aff., Ex. F.) By memo dated November 14, 2005, plaintiff responded: "the discussion where I made a comment about my immigrant status and level of intelligence was in response to an incorrect date on the tenure extension letter which was subsequently changed." (Defs. R. 56.1 Stmt. ¶ 87; Goudy-Crosson Aff., Ex. G.)
According to defendants, from September 2005 through the 2005-06 school year, plaintiff had "observable serious classroom management problems in controlling her students at St. Francis and in getting them to do the schoolwork assigned by their originating schools." (Defs. R. 56.1 Reply Stmt. ¶ 92.) Plaintiff denies this, stating that she did not have difficulty controlling her students or having them complete their assigned work. (Pl. R. 56.1 Reply Stmt. ¶ 92.) She also notes that, even though she was only "supposed to be" teaching elementary students, Goudy-Crosson often sent to her class junior high school and special education students who were not doing their work in other teachers' classes at St. Francis. (Augustin Aff. ¶ 8.) According to defendants, GoudyCrosson, because of plaintiff's alleged classroom management problems, established a rule that plaintiff was never to be in a classroom alone with her students and she set up a security post for the school monitors outside plaintiff's classroom in the event that any serious classroom management problems arose. (Defs. R. 56.1 Stmt. ¶¶ 93, 95.) Plaintiff denies this and explains that a teacher's assistant and a security guard were assigned to her classroom as a matter of course because she taught students in seven different grades in one classroom and that the same arrangements had been made for the classroom of an elementary school teacher at the Center Based program at West Street. (Pl. Rule 56.1 Reply Stmt. ¶¶ 93, 95; Augustin Aff. ¶ 9.) Plaintiff also states that there were many occasions during the school year when she was left alone in the classroom. (Augustin Aff. ¶ 9.)
On October 31, 2005 Goudy-Crosson observed plaintiff's classroom. (Defs. R. 56.1 Stmt. ¶ 100.) According to plaintiff, Goudy-Crosson had initially planned to observe her on October 27, 2005, but Goudy-Crosson "did not show up for the scheduled observation" and informed plaintiff that she would observe plaintiff on the next day; however on October 28, 2005, Goudy-Crosson again failed to appear. (Pl. R. 56.1 Counterstmt. ¶¶ 7-10)*fn10 Goudy-Crosson then "appeared in plaintiff's classroom on . . . October 31, and stayed for only fifteen minutes." (Id. ¶ 11.)*fn11 Crosson then issued to plaintiff a "Letter of Critical Evaluation," dated November 2, 2005, raising various concerns about plaintiff's job performance. (Goudy-Crosson Aff., Ex. F.) The letter states that, on October 27, 2005, plaintiff asked Goudy-Crosson about grounds for removing a student from class; in the course of this conversation, plaintiff stated "Mrs. [Goudy-]Crosson you are treating me unfairly and are discriminating against me" and Goudy-Crosson cautioned plaintiff to be "very careful with the manner in which you speak to me." (Id. at 2.) Plaintiff responded to GoudyCrosson's Letter of Critical Evaluation in a memo, dated November 14, 2005. (Id., Ex. G.)
On December 1, 2005, plaintiff and her union representative met with Goudy-Crosson and Leimer. (Pl. R. 56.1 Counterstmt. ¶ 19.) Plaintiff testified that at the meeting the participants discussed, among other things, the fact that Goudy-Crosson had indicated that plaintiff was inferior to her. (Watkins Aff'm, Ex. 21 (Augustin Dep. at 347:11-23).) Leimer denies that anyone at the meeting claimed that Goudy-Crosson had said that plaintiff was inferior to Goudy-Crosson or anyone else. (Leimer Reply Aff. ¶ 28.)
On December 14, 2005, Goudy-Crosson performed a second classroom observation of plaintiff. (Pl. R. 56.1 Counterstmt. ¶ 21.) Plaintiff testified that at a post-observation conference, Goudy-Crosson told her that although plaintiff mistakenly used the word "floor" instead of "ground," Goudy-Crosson had "actually witnessed an almost perfect observation in my room" and she "went into detail about the lesson and mentioned how everything was excellent." (Watkins Aff'm, Ex. 21 (Augustin Dep. at 415:8-24).) However, an Observation Report, dated December 14, 2005, containing Goudy-Crosson's initials but not signed by plaintiff, states that although it was obvious that plaintiff "put a lot of effort into planning the lesson" and plaintiff was patient with the students, the "lesson objective" was never made known to the students, the lesson contained too many objectives, and it was unclear whether the students understood the lesson. (Watkins Aff'm, Ex. 15.) Plaintiff testified that she first saw this report after she was no longer employed by the District. (Watkins Aff'm, Ex. 21 (Augustin Dep. at 413:15-414:14).) Goudy-Crosson testified that she showed the report to plaintiff and asked her to sign it at the post-observation ...