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Lifranc v. New York City Dep't of Education

April 6, 2010


The opinion of the court was delivered by: Kiyo A. Matsumoto United States District Judge Eastern District of New York



Plaintiff Regine Lifranc ("plaintiff" or "Lifranc") brings this action against the New York City Department of Education ("DOE") and Dr. David Morris ("Morris") alleging employment discrimination and retaliation on the basis of her race, gender,*fn1 and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000 et seq. ("Title VII"); the Fourteenth Amendment to the United States Constitution; 42 U.S.C. § 1983; New York State Human Rights Law, Executive Law §§ 290 et seq. ("NYSEL"); New York City Human Rights Law, Administrative Code § 8-101 et seq. ("NYCHRL") and Article V, § 6 of the New York State Constitution. (See generally, Doc. No. 13, Second Amended Complaint ("Second Am. Complaint" or "SAC") ¶ 1.) Plaintiff alleges that she was discriminated against because of her race, gender, and national origin and retaliated against for registering a formal complaint with the National Association for the Advancement of Colored People ("NAACP") when her duties as an Assistant Principal of Beach Channel High School ("Beach Channel") were removed on March 6, 2006 and her position as a probationary Assistant Principal was later discontinued. (See SAC ¶ at 11-26.)

After completing discovery, defendants move for summary judgment and seek dismissal of plaintiff's action pursuant to Federal Rule of Civil Procedure 56. (See Def. Mem.; Pl. Mem; Def. Reply Mem.) For the reasons set forth below, defendants' motion is granted and plaintiff's Complaint is dismissed in its entirety.


The facts pertinent to this motion, either undisputed or, where disputed and supported by competent evidence, taken in a manner most favorable to plaintiff, are as follows.

A. Plaintiff's Assignment as an Assistant Principal at Beach Channel and Performance Prior to the 2005-2006 School Year

Lifranc began working at Beach Channel High School in 1996. (See Doc. No. 45, Affidavit of Harvey S. Mars, Esq. ("Mars Aff.") Ex. 4, Deposition of Regine Lifranc, August 19, 2008 ("Lifranc Dep.") at 12-13.) In 2001, Lifranc became a probationary Assistant Principal of Guidance, or Pupil Personnel Services, at Beach Channel responsible for supervising the guidance counselors and ensuring that students' social, emotional and academic needs were met. (Id.; see also Mars. Aff. Ex. 7, Deposition of Rose DePinto, November 10, 2008 ("DePinto Dep.") at 12.) The probationary period for Assistant Principals is five years and Lifranc's probationary period was scheduled to conclude on September 1, 2006. (See Doc. No. 44, Affidavit of Regine Lifranc ("Lifranc Aff.") at ¶¶ 2-3, Ex. 1, Notice of Appointment dated 3/8/2002.)

While employed at Beach Channel, Lifranc had never received any disciplinary notices or been reprimanded in any way prior to the 2005-2006 school year. (Lifranc Aff. ¶ 12.) Prior to the 2005-2006 school year, Lifranc had received ratings of "Satisfactory" on each of her annual Pedagogical Supervisory Personnel Reports ("Rating Sheets"). (See Lifranc Aff. ¶¶ 5-8, Exs. 2-5.) Specifically, previous Beach Channel principals Bernard Gassaway and John Marcus rated Lifranc's performance as "Satisfactory" for the 2001-2002 and 2002-2003 school years, respectively. (See id.)

Morris became principal of Beach Channel in November 2003. (See Mars Aff. Ex. 5, Deposition of Dr. David Morris, April 30, 2008 ("Morris Dep.") at 7.) Morris rated Lifranc's performance as "Satisfactory" for both the 2003-2004 and 2004-2005 school years. (See id.) During those years, Morris also wrote several letters to Lifranc's personnel file praising her and thanking her for her performance of various tasks such as planning a memorial service, an open house, and an honor roll ceremony for the Beach Channel community. (See Morris Dep. at 84-95.) Lifranc believes that Morris fairly evaluated her and did not discriminate against her in a prior evaluation and when writing praiseworthy letters to her personnel file. (See Lifranc Dep. 84-86.) Morris first told Local Instructional Superintendent Roz German ("German"), the Regional DOE official with power to hire and fire assistant principals, that he was concerned about Lifranc's work performance as early as the beginning of 2005. (See Mars. Aff. Ex. 8, Deposition of Roz German, July 15, 2008 ("German Dep.") at 17, 50-52.)

In or around October 2004, Lifranc and the guidance counselors she supervised raised a variety of issues and concerns involving school policies and procedures and communication between departments that prompted a meeting with Morris to discuss the problems. (Plaintiff's 56.1 Statement ("Pl. 56.1") ¶ 6; Lifranc Aff. ¶ 9.) Morris further responded to the concerns raised by the Guidance Department by letter dated October 14, 2004. (Id.; see also Lifranc Aff. Ex. 6, Morris 10/14/04 Ltr.) By letter dated October 18, 2004, Lifranc responded to Morris's 10/14/04 letter and complained of a "somewhat hostile environment" she was experiencing due to a lack of communication with another school department headed by another Assistant Principal, Robert Brevetti ("Brevetti"). (Pl. 56.1 ¶ 7; see also Lifranc Aff. Ex. 7, Lifranc 10/18/04 Ltr.)

B. The December 16th Assessment and Subsequent Disciplinary Actions

a. The Best Practices Assessments Generally

The DOE Office of School Intervention and Development ("OSID") was led by Rose DePinto ("DePinto"), a Senior Counselor to the Chancellor responsible for the safety and security of more than 1,300 DOE schools. (DePinto Dep. 10-13.) As part of its focus on school safety and security, OSID conducted assessments of high schools approximately twice per year based on a best practices rubric ("Assessments"). (See DePinto Dep. at 28.) The Assessments were scored on a scale of 1-3, with a score of "1" meaning that the school does not meet the applicable standard, a score of "2" meaning that the school is approaching the standard, and a score of "3" meaning that the school meets the standard. (DePinto Dep. at 30-31.)

According to DePinto, the purpose of the Assessments was to identify the strengths and weaknesses of a school, make recommendations according to established best practices, and permit the principal to create an action plan for addressing and improving identified areas of weakness based on the Assessment. (DePinto Dep. at 23, 46.) DePinto stated that she did not specifically know "what a principal would do" based on the Assessments, and that she "never had a discussion about using [the Assessments] as an evaluation of Principals or Assistant Principals. That was not the purpose." (DePinto Dep. at 46-47.) DePinto further stated that "to [her] knowledge" the assessments were not used for disciplinary purposes (DePinto Dep. at 24), and that the Assessments were "not evaluative" (DePinto Dep. at 46). DePinto explained that by "not evaluative" she meant that she "was not evaluating Principals or Assistant principals based on these assessments. That was not my role." (DePinto Dep. 46-47.)

b. The December 16th Assessment at Beach Channel

As it had in the past, on December 16, 2005, the OSID conducted an assessment of Beach Channel ("December 16th Assessment") which focused on best practices in three interrelated areas: (i) safety and security; (ii) pupil personnel services; and (iii) teaching, learning, and instruction. (See DePinto Dep. at 9-13, 29.) In connection with the December 16th Assessment, the OISD team visited Beach Channel and interviewed stakeholders including students, teachers, custodians, school safety agents, the parent coordinator, and the principal. (DePinto Dep. at 21-22.)

DePinto participated in the December 16, 2005 Assessment at Beach Channel along with other members of her team. (DePinto Dep. at 10-13, 29.) Although Pupil Personnel Services, for which Lifranc was responsible, had also been evaluated during previous assessments in May 2004, January 2005, and May 2005, it is unclear whether DePinto had been personally involved in any previous assessment at Beach Channel. (Pl. 56.1 ¶ 8; see also DePinto Dep. 29-30.)

During the December 16th Assessment, however, DePinto personally evaluated Pupil Personnel Services along with another DOE official, Marjorie Elliott ("Elliott"), the Director of the Office of Student Placement for Youth and Family Support Services. (DePinto Dep. at 11, 42; see also Lifranc Aff. Ex. 11, Letter from Marjorie Elliott dated 2/13/06 ("Elliott 2/13/06 Ltr."); Chiu Decl. Ex. I, Lifranc 2/14/06 Ltr.) Prior to the December 16th Assessment, DePinto and Morris had never discussed Lifranc's job performance. (DePinto Dep. at 52.) Pupil Personnel Services received an average score of 1.5 on the December 16th Assessment.*fn2 (Pl. 56.1 ¶ 8.) Previously, Pupil Personnel Services had received average scores of 1.37 on a May 12, 2004 Assessment, 2.2 on a January 19, 2005 Assessment, and 2.4 on a May 24, 2005 Assessment. (Id.; Lifranc Aff. ¶ 11, Ex. 8.)

DePinto testified that based on their observations during the December 16th Assessment, the OISD team was especially concerned with the failure of the guidance counselors at Beach Channel to follow up with students and develop intervention plans for students showing serious behavioral issues. (DePinto Dep. at 34-35.) Specifically, the December 16th Assessment found that guidance staff under Lifranc's leadership failed to "stay on top of students in need of additional support and interventions" and had "no mechanisms" in place to case conference around such students, and that no evidence showed that members of the Pupil Personnel Team were serving as advocates for students or liaisons to families in the suspension process. (See Lifranc Aff. Ex. 8, Beach Channel High School Best Practices Rubric Longitudinal Progress, Pupil Personnel Services ("December 16th Assessment Rubric").) Additionally, the December 16th Assessment noted that the Pupil Personnel Services mechanisms for tracking student progress and programming needed "much attention" and that Lifranc needed to conduct additional training with her guidance staff. (Id.)

c. Disciplinary Actions Involving Lifranc Following the December 16th Assessment at Beach Channel

On February 7, 2006, after the December 16th Assessment was issued, Lifranc received a disciplinary letter dated February 1, 2006 from her principal, the defendant Morris, directing her to address the deficiencies identified in the Assessment. (See Lifranc Aff. Ex. 9, Morris 2/1/06 Ltr.) Specifically, Morris directed Lifranc to, among other things, create a guidance plan, help students make yearly progress towards meeting promotion standards, work with the Parent Coordinator to facilitate delivery of suspension-related services, work with Brevetti to coordinate programming and attendance outreach, and regularly send notices to parents about school events and schedules. (See id.) Lifranc was given a month to implement the required corrections outlined in Morris's 2/1/06 letter. (See German Dep. at 92.)

Also on February 7, 2006, Lifranc submitted a letter to Morris objecting to the placement of the Morris 2/1/06 Letter in her file, and disputing the accuracy of the December 16th Assessment. (See Lifranc Aff. Ex. 10, Lifranc 2/7/06 Ltr.) Lifranc's February 7th letter questioned how it was possible for the Pupil Personnel Services score to decline from an average score in the "2" range to an average score in the "1" range during a seven month period since the pervious Assessment when all departmental procedures had remained the same. (Id.)

Lifranc's February 7th letter also questioned DePinto's ability to be an impartial evaluator of Lifranc's performance. (Id.) Specifically, Lifranc asserted that DePinto had "expressed and shown her displeasure" towards Lifranc since the fall of 2002 because DePinto was upset that Lifranc had hand-delivered a letter to Chancellor Joel Klein at that time complaining about a former Beach Channel principal.*fn3 (Id.; see also Lifranc Dep. at 83.) In her letter, Lifranc also stated that she was "determined more than ever to [continue to] work with" Morris and noted that Morris himself had "many different occasions" commented on how hard Lifranc has been working at Beach Channel. (Lifranc 2/7/06 Ltr.)

Elliott also sent a letter dated February 13, 2006 to Lifranc regarding the December 16th Assessment. (Lifranc Aff. ¶ 14, Ex. 11, Elliott 2/13/06 Ltr.) In her letter, Elliott further detailed the results of the December 16th Assessment, "reiterate[d]" the conversations Elliott had had with Lifranc at Beach Channel during the December 16th Assessment, and "reminded" Lifranc of a number of recommendations for improving Lifranc's performance. (Elliott 2/13/06 Ltr.) Among other things, Elliott reminded Lifranc that Lifranc needed to personally utilize professional development opportunities offered by OSID as well as to provide professional development to her staff to ensure adequate programming for students and delivery of mandated services to students in need, outreach to parents of chronically disruptive students, service as advocates for students in the suspension process, and lesson presentations in classrooms. (Id.) Elliott also noted that "based on my observations and your responses during our conference" with DePinto during the December 16th Assessment, "I must conclude that your performance to date . . . has been unsatisfactory," and advised Lifranc that "continued unsatisfactory performance could result in an unsatisfactory rating." (Id.) Although one of the three prior assessments of Pupil Personnel Services was worse than the December 16th Assessment, Elliott had "never [before] submitted a disciplinary letter [to Lifranc] concerning the results of the assessments." (Lifranc Aff. ¶ 14.)

In the month following the Morris 2/1/06 Letter, German continued to monitor Lifranc's performance and the functioning of her department by means of regular school visits. (German Dep. at 92-95.) However, German did not see any improvement in Lifranc's performance during this time. (Id.)

On March 6, 2006, Lifranc's responsibilities over Beach Channel's Guidance Department were removed. (See id. at 54-55.)

Both Morris*fn4 and German testified that they were responsible for the decision to transfer Lifranc's duties. (Morris Dep. at 159; German Dep. at 35-38, 54-57.)

On March 25, 2006, while Lifranc was out on disability leave,*fn5 she received a packet from Morris enclosing four letters from Morris to Lifranc for her file ("Morris March Letters").*fn6

(See Doc. No. 51, Declaration of Daniel Chiu, Esq. ("Chiu Decl.") Ex. J, Morris 3/24/2006 Ltr. and enclosures; see also Pl. 56.1. ¶ 32; Lifranc Aff. ¶ 22, Ex. 17.) Three of the four letters, all dated March 14, 2006, detailed the Guidance Department's failure to effectively intervene or develop a plan of action to address the needs of three specific groups of students, specifically, the high numbers of (1) chronically truant students; (2) suspended students; and (3) students overage for their grade and not making progress toward graduation. (See Chiu Decl. Ex. J.) The fourth letter, dated March 20, 2006, discussed the Guidance Department's "persistent failure" to intervene or develop a plan of action to address the needs of students who had not been scheduled for mandated testing. (Id.) Each of the four letters cited and discussed quantitative data regarding the numbers of at-risk students and the rate of response by Lifranc's department. (See id.)

The packet also contained Lifranc's Pedagogical Supervisory Personnel Report dated March 24, 2006, for the 2005-2006 school year ("Lifranc 2005-2006 Ratings Sheet"). (See Chiu Ex. J.) On the Lifranc 2005-2006 Ratings Sheet, Morris rated Lifranc "Unsatisfactory" for the 2005-2006 school year, stated that Lifranc had "not met expectations," and recommended discontinuance of Lifranc's probation. (Lifranc Aff. ¶ 23, Ex. 18, Lifranc 2005-2006 Ratings Sheet.) In the attached "Statement of Reasons," Morris identified the various areas -- all previously cited in Morris's March Letters -- in which Lifranc's performance as Assistant Principal of Personnel Services was deficient. (Lifranc 2005-2006 Ratings Sheet.) Additionally, the Statement of Reasons faulted Lifranc for generally failing to provide the leadership and direction needed for a successfully functioning Guidance Department. (See id.)

Additionally, Lifranc received a letter dated March 25, 2006 from German notifying Lifranc that on April 25, 2006 German would consider whether to discontinue Lifranc's probationary assignment as Assistant Principal based on the documentation contained in Lifranc's 2005-2006 Ratings Sheet and inviting Lifranc to file a written response. (Lifranc Aff. ¶ 24, Ex. 19; see also Chiu Decl. Ex. J, German 3/25/06 Ltr.) In response, Lifranc submitted two letters dated April 5, 2006 and April 23, 2006. (See Lifranc Aff. ¶¶ 25-26, Exs. 20-21; see also Chiu Decl. Ex. Q, Lifranc 4/5/06 Ltr.; Chiu Decl. Ex. S, Lifranc 4/23/06 Ltr.) In her letter dated April 23, Lifranc complained to German that there was "absolutely no way" for her effectively to improve her performance because she had never received the previous disciplinary letters (the Morris March Letters) which had been sent at the same time she received the unsatisfactory rating. (Lifranc 4/23/06 Ltr.)

d. Discontinuance of Lifranc's Probation

On April 25, 2006, Lifranc received a letter from German discontinuing her service as a probationary Assistant Principal, effective April 25, 2006. (See Chiu Decl. Ex. M, German 4/25/06 Ltr.; see also Lifranc Aff. ΒΆ 27, Ex. 22.) Dr. Kathleen Cashin, the Superintendent for Beach Channel's school district during the relevant time period, testified as a general matter that the school's principal had primary responsibility, in conjunction with the Local Instructional Superintendent, for determining whether or not an Assistant Principal would pass probation. (See Mars Aff. Ex. 6, Deposition of Dr. Kathleen Cashin, July 15, 2008 ("Cashin Dep.") at 17, 22.) By recommending the ...

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