The opinion of the court was delivered by: Walder Seibel, J.
MEMORANDUM DECISION AND ORDER ADOPTING IN PART AND MODIFYING REPORT AND RECOMMENDATION
Before the Court is the Report and Recommendation ("Report") of Magistrate Judge George A. Yanthis (Doc. 59), recommending that Defendants' Motions for Summary Judgment (Docs. 28, 32, 34, 37) be granted.
Plaintiff Lillian Eugenio, a Caucasian female, is employed by the Yonkers City School District (the "District") and has worked as a Licensed Practical Nurse at Public School 29 ("P.S. 29") for twenty-two years. (Eugenio's Rule 56.1 Statement ¶¶ 1, 8.) Plaintiff Ruby Abraham, a female of Asian national origin, is also employed by the District and has worked as a Registered Professional Nurse at P.S. 29 for six years. (Abraham's Rule 56.1 Statement ¶¶ 1, 3.) Plaintiff Karen D'Anna, a Caucasian female, is employed by the District and has worked as a School Aide at P.S. 29 for over fifteen years.*fn1 (D'Anna's Rule 56.1 Statement ¶¶ 1, 3-4.) During the relevant period, Plaintiffs worked together in the Nurse's Office at P.S. 29. Plaintiffs Eugenio and Abraham are mandated reporters of suspected child abuse pursuant to New York State law (Eugenio's Rule 56.1 Statement ¶ 12), and Plaintiff D'Anna is not (D'Anna's Rule 56.1 Statement ¶ 7).
Defendant Marilyn Walder, an African-American female, was the Principal of P.S. 29 from 1991 until June 6, 2006, and as such, was also a mandated reporter of suspected child abuse pursuant to New York State law. (Id. ¶ 2.) Defendant Bernard P. Pierorazio, a Caucasian male, is the Superintendent of Schools for the District. (Eugenio's Rule 56.1 Statement ¶ 2.) Defendant Vincent A. McPartlan, a Caucasian male, is the District's Executive Director of Pupil Support Services and Special Education. (Id. ¶ 3.) Defendant Pasquale Piccirella, a Caucasian male, is the Director of District Safety and Security as well as the District's Title VI and Title IX Compliance Officer. (Id. ¶ 4.)
Plaintiffs filed an Amended Complaint on July 6, 2006 (Doc. 3), alleging that Walder repeatedly and consistently opposed their reports of suspected child abuse to Child Protective Services ("CPS") when those reports were made with respect to African-American children, because Walder allegedly believes that such reports are "destructive of the social fabric of African-American families and adversely impact the parents and/or guardians of abused children . . . ." (Am. Compl. ¶ 13.) Pursuant to New York State law, the first mandated reporter to suspect child abuse must report it to CPS,*fn2 but Plaintiffs allege that Walder had a policy requiring Plaintiffs to notify Walder of such suspected abuse before reporting it to CPS.*fn3
(Eugenio Dep. 117, 152; Abraham Dep. 124-29; D'Anna Dep. 185-86.) Plaintiffs also contend that Walder discouraged and took punitive and retaliatory actions against them for their persistence in making such reports. (Am. Compl. ¶ 14.) Specifically, Plaintiffs assert that Walder has taken adverse actions against them including: forbidding them to report suspected child abuse, punitively reassigning them to different positions, removing necessary equipment from the nurse's office, disclosing their identities to parents of children with respect to whom they have reported suspected abuse, subjecting them to verbal abuse, and treating them in a degrading manner. (Id.) The Amended Complaint further alleges that Walder harbored animus against, and engaged in misconduct with respect to, learning disabled and developmentally disabled children. (Id. ¶ 7.)
At different times from 2002 to 2006, Plaintiffs expressed concerns regarding Walder's alleged misconduct to District administrators, including Defendants Pierorazio, McPartlan and Piccirella. On October 31, 2002, Eugenio met with Dr. Cordero, the Chief School Physician, and discussed with him her complaints regarding Walder's alleged harassment and intimidation of Plaintiffs. (Abraham Dep. 254.) On November 4, 2002, Abraham sent a letter regarding Walder's alleged mistreatment of Plaintiffs to Sue LaDue, the District's Harassment Officer and Assistant Superintendent at the time. (Gould Aff. Ex. 9.)
In 2005, Plaintiffs sought the intervention of the Civil Service Employees Association ("CSEA"), their certified labor union and collective bargaining unit. (See id. Ex. 14.) The CSEA president, Bobbie DiBattista, and a CSEA representative, Lawrence Sparber, met with Plaintiffs on September 21, 2005, to discuss Plaintiffs' complaints that Walder was harassing, threatening and interfering with Plaintiffs' performance of their professional duties. (Sparber Dep. 17-23.) Thereafter, DiBattista and Sparber contacted Superintendent Pierorazio to set up a meeting to discuss Plaintiffs' concerns. On September 28, 2005, DiBattista and Sparber met with Pierorazio to discuss Plaintiffs' complaints. During that meeting, Pierorazio said the he would look into the matter as well as meet with Plaintiffs. (DiBattista Dep. 24-26.)
On November 3, 2005, Eugenio, D'Anna and Abraham, accompanied by their union representatives, DiBattista and Sparber, met with Pierorazio to discuss their complaints. (Eugenio's Rule 56.1 Statement ¶ 19; Eugenio Dep. 391-93; Pierorazio Dep. 6; Sparber Dep. 23.) At the meeting, Plaintiffs contend that they expressed their complaints regarding Walder, including her alleged discrimination against African-American children by preventing mandated reporters from calling CPS, her harassment of Plaintiffs, as well as her interference with their professional duties. (Eugenio Dep. 527-28; Sparber Dep. 25-26.) According to Eugenio, Pierorazio told Plaintiffs at this meeting that when child abuse is suspected and a call to CPS is to be made, informing the principal is a courtesy intended to prepare the principal for CPS's arrival at the school. (Eugenio Rule 56.1 Statement ¶ 18; Eugenio Dep. 128.) Eugenio testified that she understood this statement as a "directive" that she report suspected child abuse to the principal before reporting it to CPS. (Eugenio Dep. 130-31.)
On November 9, 2005, Eugenio and Abraham filed grievances on Title VI*fn4 forms claiming that they were being discriminated against, harassed, slandered and singled out because they followed District policy and New York State law. They complained that Walder was jeopardizing their ability to do their jobs, and that she was making their workplace "stressful" and "hostile." (Gould Aff. Exs. 20, 22.) D'Anna also filed a grievance on a Title VI form on November 9, 2005, claiming that Walder was taking retaliatory actions against her, including harassing her and requiring her to perform out-of-title tasks because she filed grievances in June 2005.*fn5 (Id. Ex. 21.) On the basis of these complaints, Pierorazio directed Piccirella to conduct an investigation of Plaintiffs' grievances, which Piccirella did by interviewing each Plaintiff separately. (Pierorazio Dep. 16; Eugenio's Rule 56.1 Statement ¶ 23; Abraham's Rule 56.1 Statement ¶ 15.)
On November 30, 2005, Piccirella issued a written report to Pierorazio regarding Eugenio and Abraham's complaints. The report concluded that the "work environment at School 29 for the complainant's [sic] is uncomfortable," but that "[t]here is no indication the treatment of either complainant is based on race, color, national origin, religion or gender. Therefore, a violation of Title VI has not been established." (Gould Aff. Ex. 27.) On November 29, 2005, Piccirella issued a memorandum regarding his findings with respect to D'Anna's grievance. He concluded that the "work environment at School 29 for the complainant is uncomfortable" and that D'Anna had "completed 'out of title' tasks," which entitled D'Anna to a stipend that she had not been given. As with the other grievances, Piccirella concluded that there was no indication of discrimination and, therefore, no violation of Title VI. Piccirella recommended, however, that "[f]urther inquiry . . . be conducted by a supervisor from Pupil Support Services and Elementary Education in an attempt to resolve the work environment and stipend payment." (Id. Ex. 26.)
On December 1, 2005, Pierorazio issued a memorandum to McPartlan and Sharon Woods, then the Executive Director of Elementary Instruction for the District, informing them the Piccirella found that there was "no violation of Title VI," but that the "recommendation indicates intervention by the Supervisor of Pupil Support Services and Elementary Education to resolve the 'hostile work environment.'" (Id. Ex. 28.) Although Pierorazio testified that he directed McPartlan and Woods to take action regarding the situation (Pierorazio Dep. 26), Plaintiffs maintain that no remedial actions were taken (Am. Compl. ¶¶ 15-16). Sparber of the CSEA wrote a letter to Pierorazio dated January 17, 2006, requesting an update regarding the District's action plan with respect to Plaintiffs' complaints and a meeting with Pierorazio to discuss the outstanding issues. (Gould Aff. Ex. 30.) Sparber wrote to Pierorazio again on February 9, 2006, seeking a response to his January 17, 2006 letter and urging Pierorazio "to pursue immediate corrective action on this issue." (Id. Ex. 31.)
On February 14, 2006, McPartlan and Woods visited P.S. 29 and met with Plaintiffs to investigate their complaints. (McPartlan Dep. 40-43; Gould Aff. Ex. 36.) The following day, McPartlan and Woods met with Walder and her union representative. (McPartlan Dep. 56.) McPartlan and Woods issued a memorandum to Pierorazio on February 15, 2006, regarding their investigation and setting forth the proper procedures to be followed with respect to 911 emergencies and suspected child abuse. (Gould Aff. Ex. 36.) They found that there was "a miscommunication of procedures that should be followed as it pertains to CPS cases and 911 emergency cases," and that "professional medical personnel should be allowed to use their professional judgment as it pertains to 911 emergencies, as well as CPS cases." (Id.) The memorandum also indicated that D'Anna "ha[d] been used for out-of-title duties on an ongoing basis," and recommended that procedures be put in place, including making every effort not to re-assign designated nurse's aides to other tasks unless warranted by an emergency situation, using designated special education aides to assist special education children, and preventing the use of retaliation or intimidation tactics against any party as a result of a complaint. (Id.)
On February 16, 2006, McPartlan sent letters to Eugenio, Abraham and D'Anna, copying Pierorazio, Woods, Walder and Cordero, regarding Plaintiffs' concerns and the February 14, 2006 meeting. The letters stated that Plaintiffs' medical professionalism and opinions should not be compromised, and detailed the procedures to be followed in cases of suspected child abuse. (Id. Exs. 33-35.) In addition, McPartlan clarified D'Anna's "role and responsibility as a School Aide at School 29" by advising her that she had been "officially assigned to the School 29 Nurses' Office to assist with their day-to-day operation since the additional special education students were brought back to the District." Further, he recommended that she only be reassigned from her responsibilities in emergency situations, which arise from time to time in a school with a large special education population. (Id. Ex. 33.) During his deposition, however, McPartlan testified that his finding regarding D'Anna's out-of-title duties was mistaken because, as he later discovered, school aides could not be officially assigned to the nurse's office and the District had never had a nurse's aide title.*fn6 (McPartlan Dep. 67-68.) Thus, while D'Anna believed that she was a nurse's aide, no such title existed, and she was at all relevant times a school aide. (D'Anna Dep. 38-39.)
Woods sent a letter to Walder on February 22, 2006, explaining that permission was not required to make either 911 calls or CPS reports, but that the building administrator should be notified. Woods also advised Walder that she should "make every effort to use school personnel in their designated titles and not reassign the designated nurse's aide to other tasks unless it is warranted under an emergency situation." Finally, Woods cautioned Walder that "[i]nterference with these directives is cause for disciplinary action against [her]." (Gould Aff. Ex. 37.) Walder responded to Woods's letter on April 7, 2006, reiterating that D'Anna is a School Aide, rather than a "Nurse Aide," that Walder allowed D'Anna to work out-of-title due to Walder's concern for the students, and that Walder would only reassign D'Anna "in order to meet [her students'] daily concerns." (Gilbride Aff. Ex. P.) D'Anna testified at her deposition that she believes that Walder took retaliatory actions against her because D'Anna, when she was given special education duties, told Walder that she was not a special education aide. (D'Anna Dep. 147-48.)
Plaintiffs allege that in the spring of 2006, the CSEA president informed Plaintiffs that the CSEA would not assist Plaintiffs because Pierorazio had requested that they not. (Am. Compl. ¶¶ 18-20; Abraham Dep. 588-89.) Plaintiffs wrote a letter dated April 4, 2006, to Pierorazio, copying the Gannett Suburban Newspapers, the Board of Education, the District Attorney, the Commissioner of Social Services and the County Executive, in which they expressed their discontent with Walder's policy of requiring Plaintiffs to notify her before reporting any suspected abuse to CPS and Walder's disapproval of and retaliation against Plaintiffs for persisting in reporting suspected child abuse to CPS. (Gould Aff. Ex. 39.) On April 4, 2006, DiBattista left a voicemail message on D'Anna's cell phone advising her not to go to the press because doing so would cause people to lose their jobs. On April 5, 2006, the Journal News published an article entitled "Principal Accused of Stifling Abuse Reports." (Gould Aff. Ex. 53.) Thereafter, Plaintiffs allege Defendants subjected them to retaliatory treatment and that as a result thereof, they ceased expressing their concerns regarding the health and safety of children at P.S. 29. (Am. Compl. ¶ 21.) In addition, they allege that they have been retaliated against in numerous ways following the filing of this action.
Plaintiffs assert claims against all of the Defendants for First Amendment retaliation and violation of their equal protection rights pursuant to 42 U.S.C. § 1983, racial discrimination pursuant to 42 U.S.C. § 1981, and violation of the New York State Human Rights Law. (Id. ¶¶ 30-41.) In addition, Plaintiffs assert against the District claims for retaliation and discrimination pursuant to Title VII and 42 U.S.C. § 1981. (Id. ¶¶ 42-45.)
The Parties conducted discovery, and on June 20, 2009, Defendants filed separate Motions for Summary Judgment as to each Plaintiff's claims (Docs. 28, 32, 34, 37) on the grounds that Plaintiffs failed to raise material issues of as to: (1) their First Amendment retaliation claims because their speech -- reporting suspected child abuse cases -- is not constitutionally protected; (2) their equal protection claims because they lack third party standing; (3) their Title VII, Section 1981 and First Amendment retaliation claims because they did not suffer adverse employment actions; (4) their Title VII, Section 1981 and New York State Human Rights Law claims because they admitted ...