The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #8.
Plaintiff, represented by counsel, commenced this action seeking damages pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the New York Human Rights Law, Article 15 of the Executive Law, § 290 et seq. ("NYHRL"), claiming discrimination and harassment on the basis of gender and race, and retaliation resulting in her constructive discharge. Dkt. #1.
Currently before the Court is defendant's motion for summary judgment.
Dkt. #18. For the following reasons, defendant's motion is granted in part.
Plaintiff commenced employment with the Buffalo Public Schools as a Special Education Teacher beginning in September of 2000. Dkt. #57, ¶ 2. On the form she submitted to the Buffalo Police Department authorizing a check of her criminal record, plaintiff reported her race as "WHT". Dkt. #19-2, p.2.
Plaintiff's initial placement was at Riverside High School as an inclusion teacher. Dkt. #19-3, p.5. Her evaluation report for the 2000-2001 school year was positive, with comments indicating an excellent knowledge of subject matter; ability to express ideas clearly and direct pupils effectively; ability to analyze and adjust to student needs and work well with the administration; and a very positive and enthusiastic personality and cooperative and helpful attitude. Dkt. #50, p.3.
Plaintiff chose an assignment as a consultant teacher for 8th grade inclusion students at School #31 for the 2001-2002 school year. Dkt. #19-3, p.6 & Dkt. #57, ¶ 2. In response to a Memorandum from Rita Fraiser, Principal at School #31, advising all faculty and staff that the deadline for transfer requests for the 2002-2003 school year was March 23, 2002, plaintiff requested a transfer as soon as possible because:
Mr. Morris has repeatedly singled me out and called me into his office for meetings to discuss matters which a reasonable person would perceive as frivolous and contrived. [He] has exhibited behaviors/actions which constitute harassment and discrimination and his allegations against me of wrongdoing have no merit. Mr. Morris has created a hostile work environment for me and has made it impossible for me to continue working at School #31.
Dkt. #43, p.3. Mr. Morris was the assistant principal at School #31 from 2000-2003. Dkt. #35, p.4. In a six page attachment, plaintiff outlined six incidents in support of her complaint:
1. In early September, 2001, Mr. Morris walked into the resource room and "ordered" plaintiff to meet with him in his office at 1:00 p.m. "without stating whether or not the meeting was disciplinary in nature so as to afford me the opportunity to obtain Union representation." When she met with Mr. Morris, he informed her that Miss Dixon had informed him that plaintiff "did not want to cooperate and walk with/supervise students to the library." Plaintiff explained that because all of the other teachers were only scheduled for one trip to the library she "did not want to walk on two trips" as Ms. Dixon had requested.
2. Mr. Morris asked plaintiff to meet with him on January 11, 2002 to address "some concerns." However, when plaintiff arrived at the meeting with a union representative, Mr. Morris simply informed plaintiff that Individualized Educational Plans were now available on line.
3. In March or April of 2002, Ms. Fraiser approached plaintiff while she was on lunch duty and asked her if she was interested in changing assignments within the school to take over a new self-contained 7th and 8th grade classroom. Plaintiff explained:
These are all students who have serious behavioral problems and self-contained or receive all of their instruction in one classroom (under constant supervision). I told her that I was not interested in this type of unit. I asked her if she had approached other inclusion teachers such as Mrs. Chiu or Mrs. Giorgi-McDonald. She stated that neither one expressed interest in the unit. Mrs. Fraiser told me that Mr. Morris had recommended that I be assigned to this unit. I responded by saying, "of course he did, it's the worst assignment in the school." I then told her that Mr. Morris had a serious problem with me and where I'm concerned, his objectivity is questionable. In effect, I made it known to her [that] Mr. Morris was incapable of demonstrating fairness where I'm concerned. I pointed out to her that if the other two teachers were not interested in the unit, and they were released from consideration, then why would it automatically fall to me? She declined to discuss it further. Subsequently, I spoke to her in her office and she told me that I would more than likely be assigned to this unit. At this time I voiced my objection to this assignment.
4. Mr. Morris asked to meet with plaintiff in his office on March 7, 2002. Because her union representative was absent, plaintiff arrived at Mr. Morris' office alone and "presented him with a handwritten memo... outlining [her] request for information pertaining to the meeting and/or postponement until such time that my Union representative could be present." Mr. Morris declined to sign the document and "continued the meeting anyway (a portion of which is tape recorded)." Mr. Morris "accused" plaintiff of leaving early on Tuesday, March 5th without telling an administrator and leaving the Language Arts Examinations in her room in violation of procedures for test security. Plaintiff explained that she had provided a leave slip and that she had locked the exams in her room.
5. When plaintiff went to the office to attempt to locate the leave slip she had provided on the morning of March 5th, Mr. Morris told plaintiff "she had no authority to look through the slips." Later, when she attempted to enter the same area to acquire a blank slip to request leave, she was "physically prevented...from entering the administrative area" by a secretary who informed her that "Mr. Morris told me to keep you out of here."
6. Mr. Morris gave plaintiff a new duty assignment, causing plaintiff to complain that she has 17 special ed students on my 8th grade list (which is too many to serve effectively to begin with) and now the lunch duty has eliminated another class period during which to provide services. This is further evidence of Mr. Morris' discriminatory behavior towards me. He has systematically manipulated my schedule which reduces my instructional time with students, precluding me from performing my duties as a teacher effectively.
Dkt. #43, p.3-8. The request for transfer and its attachment was copied to plaintiff's union representative, special education supervisor and her attorney. Dkt. #43, p.9.
By letter to whom it may concern dated April 9, 2002, Ms. Fraiser opined that Mrs. Dresser is a dedicated educator, who demonstrates superb organizational and management skills. She assisted in coordinating our Special Education program in the areas of planning and evaluation. Mrs. Dresser services students as a resource teacher on the seventh and eighth grade levels. She has a great rapport with students and staff. I have found her to be [a] talented individual, whose professionalism has been an asset to our program.
It is my opinion that Mrs. Dresser will be a welcome addition to any faculty.
By letter dated June 20, 2002, Mark Sposato, Associate Superintendent for Instructional Services, and Laura Dudley, Executive Director for Human Resources, advised plaintiff that it was not possible to honor her request for a transfer because the "Board of Education's policy does not allow probationary or temporary teachers a transfer option." Dkt. #19-9, p.2.
Fatima Morrell, the principal at School 31 beginning with the 2002-2003 school year, recalled that upon her arrival, plaintiff wrote a note requesting that Mr. Morris not be her supervisor "[b]ecause of something that happened the year before I got there." Dkt. #32, pp.4-5 & 9. Specifically, plaintiff wrote Ms. Morrell a Memorandum dated September 30, 2002, to inform [Ms. Morrell] of a situation that occurred last school year. Mr. Morris repeatedly singled me out and called me into his office for meetings to discuss matters which a reasonable person would perceive as frivolous and contrived. His attempts to create a reason/situation in order to issue a formal disciplinary action were unsuccessful to my knowledge. His action constituted harassment and discrimination and his allegations had no merit.
I have a file with extensive documentation to prove at least seven incidents, including a tape recording of Mr Morris denying me union or legal representation during a meeting in which he had every intention of issuing a formal disciplinary letter. In fact, he was legally obligated to inform me before the meeting that the purpose of such meeting was to administer a disciplinary action to afford me the opportunity to seek representation. The documentation I have gathered refutes his allegations and clearly indicates that Mr. Morris has no reservations about making false statements, violating federal and state laws, and abusing his authority to further his own personal agenda.
During the summer, I requested a transfer to another school based on the information I provided to the Special Education Director [Ms. Markel] regarding Mr. Morris' administrative conduct. I was denied such transfer and told that under the union contract, I had to remain at School #31 for at least another year.
Ms. DeTallio [Special Education Coordinator] informed me last Friday that Mr. Morris requested that she develop a schedule requiring me to serve 7th and 8th grade students. I would like to know if Ms. DeTallio will also be developing such a schedule for all the other special education teachers in the building. In light of Mr. Morris' prejudicial behavior last year, I would like to know why Ms. DeTallio has been asked to perform such a task again this year? The schedule she developed for me at Mr. Morris' behest last year was immensely ineffective.
As I expressed to you previously, I see you as a strong leader who is knowledgeable, visible (proactive), well organized, energetic, and focused. I am hopeful that this matter can be resolved to our mutual satisfaction.
Dkt. #36, pp.2-3. In response to this memorandum, Ms. Morrell informed plaintiff that she would assume responsibility for observing and evaluating plaintiff. Dkt. #32, p.17.
Ms. Morrell observed plaintiff in the classroom on January 10, 2003. Dkt. #33, p.24. Ms. Morrell opined that her observation of plaintiff was "not really good" and "was pretty bad, in fact." Dkt. #33, p.24. When Ms. Morrell attempted to discuss her observation of plaintiff, "the first time she had reported back to school" following the observation, plaintiff "refused to discuss the evaluation with me and to review it." Dkt. #34, pp.8 & 11. Ms. Morrell couldn't remember if she or Ms. Kapsiak was going to do another observation of plaintiff, but did recall that as soon as plaintiff was informed that she would be observed, "she became ill all of a sudden... and left for the day, midday." Dkt. #34, p.19.
By Memorandum to plaintiff dated January 14, 2003, Ms. Morrell documented the conference I held in my office on 1/9/03 with you and ...