The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff, Bonnie Barkley ("plaintiff" and/or "Barkley"), brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5 et seq., ("Title VII") and the New York State Human Rights Law, N.Y. Exec. Law § 296 ("HRL"), alleging retaliation by the defendant PennYan School District ("defendant" and/or "the School District") against the plaintiff for opposing discrimination. Specifically, plaintiff claims that after she filed two previous complaints with the New York State Division of Human Rights ("NYSDHR") due to discriminatory treatment, she was terminated from a Long Term Substitute Teaching Assistant position by the School District in violation of a contract.
Defendant denies plaintiff's allegations, and moves for summary judgment dismissing plaintiff's Complaint. According to the defendant, the Complaint should be dismissed in its entirety because, inter alia, (1) plaintiff's HRL claims are time barred; (2) her Title VII claims are barred by the doctrine of collateral estoppel; and (3) as a matter of law, plaintiff cannot establish that she has suffered any retaliatory conduct. Plaintiff argues that her claims are timely, are not barred by collateral estoppel and that summary judgment should be denied since there are issues of fact which require a trial. For the reasons set forth below, I grant defendant's motion for summary judgment, and dismiss plaintiff's Complaint in its entirety.
The relevant facts that the court deems undisputed, based on the Complaint, the parties' 56.1 Statements (as limited by invocation of the Local Rule),*fn1 and other materials submitted in connection with defendant's motion for summary judgment, are as follows:
Plaintiff, Bonnie Barkley, previously served as a substitute teacher for the School District on a number of occasions prior to the March 22, 2002 notice by the School District seeking applicants for the position of Long-Term Substitute Teaching Assistant at the Middle School computer lab. Barkley applied for the position on March 27, 2002 and on April 23, 2002, she started substituting in the teaching assistant position in the computer lab on a per diem basis. See Declaration of Charles E. Symons ("Symons Dec."), Ex. G. On April 29, 2002, the School District interviewed plaintiff for the Long Term Substitute Teaching Assistant position. Subsequently, the Superintendent Dr. Gene Spanneut ("the Superintendent") recommended that the School District appoint plaintiff to the position.
Barkley continued in the position of Long Tern Substitute Teaching Assistant on a per diem basis until the School District's Board of Education meeting held May 29, 2002. At that meeting, the president requested a motion to consider the Superintendent's recommendation to appoint plaintiff to the position. However, none of the Board members made a motion to consider the Superintendent's recommendation. Plaintiff claims that of all the items on the agenda for the May 29, 2002 meeting of the Board of Education, only her appointment failed to be moved for a vote. See Appendix to Local 56.1 Counter Statement of Material Facts ("Local 56.1 App."), Ex. T. While no motion was made for plaintiff's application for a long term substitute assistant position, the very next line item on the agenda for the May 29, 2002 Board of Education meeting was the appointment of Margie Fuller to a long term substitute position wherein a motion was made for her appointment and was passed by a vote of 9-0. See id.
On May 30, 2002, the Superintendent and the Middle School Principal informed plaintiff that because the recommendation for her appointment to the Long Tern Substitute Teaching Assistant position had not been acted upon by the Board of Education, the plaintiff could not continue in her position in the computer lab. Shortly after the May 29, 2002 Board of Education meeting, the Superintendent and Board of Education learned that Barkley had falsified her employment application. See Affidavit of Gene Spanneut ("Spanneut Aff.), ¶ 2. Barkley denied intentionally falsifying her application and claimed that the School District "tricked" her into putting incorrect information into her application. See id., ¶ 6.*fn2 According to Spanneut's Affidavit, the School District periodically revises various forms it uses, including applications, in order to make the documents clearer and to conform with changing laws and regulations. See id., ¶ 7. The application form completed by the plaintiff in August 2001 was later revised and completed by plaintiff in February 2002 to comply with New York state regulations directing public school districts to obtain more detailed information of a job applicant's criminal history. See id. Accordingly, the change in the application and completed by the plaintiff in 2002 did not target the plaintiff but was in compliance with a normal business practice of the School District. See id.*fn3 It required her to reveal the truth about her criminal history - which she eventually did.
As a result of legal action taken by Barkley against the School District, she was examined under oath pursuant to General Municipal law Section 50-h on September 20, 2002. Plaintiff testified at length concerning what she alleged to be the circumstances surrounding false information contained in her employment application. See Spanneut Aff., Ex. 5. Barkley's explanations concerning the false information in her application were not credited by the Superintendent who concluded that he would not recommend her again for a position in the School District following the discovery of her falsified application. See id., ¶ 8. In June 2003, Barkley was elected as a member of the Board of Education and served in that capacity until June 2006. See id., ¶ 9. As a Board Member, plaintiff understood that she was no longer eligible to work as an employee in the School District. Accordingly, Barkley did not seek employment with the School District until she left the Board at the end of her term in 2006.
Prior to May 29, 2002, Barkley had filed two discrimination claims against the School District with the NYSDHR, both of which were dismissed. Plaintiff filed the initial charge of discrimination against the School District on April 3, 2000 alleging sex and age discrimination after applying and not obtaining a position with the School District. Plaintiff received a notice of determination from the NYSDHR on her first charge of discrimination on April 12, 2001. Thereafter, plaintiff filed a second charge on June 22, 2001 alleging discrimination and retaliation against the School District. Specifically, plaintiff claimed that since the filing of her original charge of discrimination, she was refused work as a certified substitute teacher and only offered lower paying position as an un-certified substitute teacher. Plaintiff received a notice of determination from the NYSDHR on her second charge of discrimination on March 12, 2002. Plaintiff filed an appeal with the Commissioner of the New York State Board of Education ("Commissioner") on June 27, 2002 alleging that she was entitled to remain in her teaching position for its duration and required to be paid as a certified teacher for the time worked.
Plaintiff then filed a third charge of discrimination (which is the subject of the instant action) with the NYSDHR and contemporaneously with the Equal Employment Opportunity Commission ("EEOC") on or about June 28, 2002 claiming she was subject to discrimination and retaliation for having filed prior charges of discrimination.*fn4 Specifically, plaintiff alleged that she was hired for a long term teaching assistant position on April 22, 2002 and was terminated for no reason on May 30, 2002. Defendant argued to the NYSDHR that Barley's claims were barred by collateral estoppel/res judicata and by the doctrine of election of remedies. In addition, defendant argued that plaintiff's complaint filed with the Commissioner was an election of her remedies and that her NYSDHR complaint was, therefore, barred. The School District claims that the alleged facts relied upon by the plaintiff to support the Workers' Compensation retaliation complaint filed in March 2003, the complaint to the Commissioner of Education and the Small Claims court proceeding, which was appealed and dismissed in a May 2, 2003 decision by the Yates County Court rely upon the same facts alleged and relied upon by the plaintiff in her June 28, 2002 NYSDHR complaint.
Plaintiff claims that the NYSDHR determined that Barkley's charge of discrimination was not barred by collateral estoppel/res judicata due to a Small Claims court decision. The Small Claims court decision was dismissed because the plaintiff did not file a Notice of Claim in a timely manner.*fn5 See Symons Dec., Ex. L. However, the issue of retaliation was not addressed in the Small Claims Court determination. See id. With respect to Barkley's complaint with the Commissioner, the NYSDHR investigator's report found that "[t]here are no provisions in the Education Law prohibiting retaliation against an individual for opposition to discrimination. Therefore, the [NYSDHR] is the proper forum to investigate complainant's claims of retaliation." See Local 56.1 App., Ex. H. Further, the report stated that members of the Board of Education were aware that Barkley had brought previous actions against the School District. While the board members articulated reasons such as fatigue, lateness of the hour and length of the meeting for not moving the question of plaintiff's appointment, none of these factors prevented the Board of Education from approving the appointment of another Long term Substitute teacher, which was the last item on the agenda. See id.
On December 15, 2003 after completing the investigation into plaintiff's claim, the NYSDHR determined that there was "PROBABLE CAUSE to believe that [defendant] engaged in or is engaging in unlawful discriminatory practice complained of." See Local 56.1 App., Ex. I.*fn6 The NYSDHR also recommended that a public hearing be conducted to ascertain whether there was merit to the retaliation claim contained in plaintiff's NYSDHR complaint. See Symons Dec., Ex. D. However, after the NYSDHR issued its probable cause determination, plaintiff requested that the NYSDHR terminate its administrative proceedings so that she could pursue the retaliation complaint in court. See id., Ex. E. Plaintiff's charge of discrimination was subsequently dismissed by the NYSDHR for administrative convenience on April 26, 2005. Thereafter, on June 23, 2005, the EEOC issued plaintiff a Notice of Right to Sue statement. Following the termination of the NYSDHR's administrative proceeding and the EEOC notification, the plaintiff filed suit in this Court on September 21, 2005. See id., Ex. A.
I. Defendant's Motion for ...