The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge
Plaintiff Angela Walder brings this Title VII action against the White Plains City School District ("WPSD") (erroneously sued as the White Plains Board of Education), alleging that it discriminated against her on the basis of her gender and retaliated against her for having filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). (Dkt. No. 8: Am. Compl.)*fn1
Presently before the Court is defendant WPSD's summary judgment motion. (Dkt. No. 30: Notice of Motion.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 28.) For the reasons set forth below, defendant's summary judgment motion is GRANTED.
Plaintiff Angela Walder began working as a Teaching Assistant ("TA") for the White Plains School District on November 27, 2000. (Dkt. No. 8: Am. Compl. Ex. E: Walder Ltr. to Michelle Trataros at 1; Dkt. No. 32: Velez Aff. Ex. E: Walder Dep. at 11; Dkt. No. 34: Def. Rule 56.1 Stmt. ¶ 1; Dkt. No. 41: Walder Rule 56.1 Stmt. ¶¶ 1, 20.) Walder was required to work a minimum of six hours each school day, and was allocated "one (1) day of sick leave credit for each month of service" and "two (2) personal days with pay per year." (Walder Dep. at 28; Velez Aff. Ex. F: Collective Bargaining Agmt. at 7, 9-10.)*fn2 Although she was an hourly employee, Walder was entitled to "[a]nnualization" of her wages provided she maintained a "sick leave balance of 10 days each year as of June 30." (Collective Bargaining Agmt. at 7.)
Because she had experience working with "disabled students" (Walder Dep. at 14-15), Walder originally was assigned to help teacher Maria Gentile instruct fifteen "special needs students" in "life skills . . . math, reading, social studies, [and] science." (Walder Dep. at 17-27.) In the classroom, Walder led cooking lessons, assisted students with their academic instruction, and escorted them to the cafeteria, gymnasium and art class. (Walder Dep. at 24-25.) Walder performed well in this role and on November 27, 2003, after a three year probationary period, was granted tenure upon the recommendation of Superintendent Timothy Connors. (Velez Aff. Ex. G: 9/24/03 Medina Ltr. & 10/9/03 Connors Ltr; Walder Rule 56.1 Stmt. ¶ 29.)
Shortly after Walder started working at the school, construction began on a new office and science wing. (Walder Dep. at 37-40; Walder Rule 56.1 Stmt. ¶¶ 23-24.) Debris from the construction caused Walder to suffer frequent "sinus [and] upper respiratory infection[s]." (Walder Dep. at 37-38; Walder Rule 56.1 Stmt. ¶¶ 24-26.) Because of her recurrent illnesses, Walder requested a "lighter schedule" and, during the 2003-04 school year, asked to be taken out of the "special needs" classroom. (Walder Dep. at 46-47, 98-104; Walder Rule 56.1 Stmt. ¶ 31.) At the time, Walder explained, she was "physically and emotionally drained," and working everyday with the special needs students "got to be too much and [she] couldn't do it." (Walder Dep. at 102-03; Walder Rule 56.1 Stmt. ¶ 32.) Around the same period, Walder requested a "late entry" because she had just moved to Connecticut and was still sick, "[s]o it would take [her] even more time to get [her]self together to come to work." (Walder Dep. at 99; Walder Rule 56.1 Stmt. ¶ 31.)
Director of Special Education Narci Medina changed Walder's start time from 7:30 AM to 8:00 AM and removed her from the "special needs" classroom. (Walder Dep. at 12-13, 32-33, 46-47, 98-103; Walder Rule 56.1 Stmt. ¶ 33.) Medina refused, however, to give Walder a lighter workload, explaining "that all the TA's had to have a full schedule." (Walder Dep. at 103.) Instead, Walder performed clerical work in the main office and was dispatched to various Special Education Department classrooms and study centers as the need for a TA arose. (Walder Dep. at 46-52, 102-03.) As a so called "floater," Walder's schedule depended on the Department's needs and varied from day to day. (Walder Dep. at 44-46.)
In April 2005, "as a result of [her] being so physically sick," Walder began having anxiety attacks. (Walder Dep. at 39, 44, 114; Walder Rule 56.1 Stmt. ¶ 27.) After consultation with her doctor, Walder applied for, and was granted, sick leave without pay under the FMLA, effective April 4, 2005. (Velez Aff. Ex. G: 4/8/05 FMLA Request Form & 4/11/05 O'Connell Ltr; Walder Dep. at 114.) Because Walder's FMLA leave encompassed the remainder of the 2004-05 school year, she did not return to work until September 6, 2005. (Velez Aff. Ex. G: 4/8/05 Walder Ltr. & 8/26/05 Welby Ltr.; Walder Dep. at 114.)
Upon her return to work in September 2005, Walder continued to miss a significant amount of time due to illness: between September 12, 2005 and December 23, 2005, she missed twenty-two work days.*fn3 (Velez Aff. Ex. H: Walder Attendance Records; Velez Aff. Ex. I: 1/12/06 Performance Review; see Defs. & Walder Rule 56.1 Stmts. ¶ 3.) On January 12, 2006, Walder met with Medina for a mid-year performance evaluation. (1/12/06 Performance Review; Walder Dep. at 55-64; Defs. & Walder Rule 56.1 Stmts. ¶ 4.) According to Medina, Walder's "punctuality and attendance" problems negatively "impacted on the instructional supports that were needed in the high school." (1/12/06 Performance Review; Defs. & Walder Rule 56.1 Stmts. ¶ 4.) Although she otherwise was an "effective teaching assistant," Walder received an "unsatisfactory" rating, with the recommendation that she "reflect on her punctuality and her attendance for the remainder of th[e] school year." (1/12/06 Performance Review; see Defs. & Walder Rule 56.1 Stmts. ¶ 4.)
Walder missed an additional thirty-four work days during the spring 2006 term. (See Velez Aff. Ex. H: Walder Attendance Records.) A second performance evaluation, covering the period from February to June 2006, reiterated Medina's concerns about Walder's "excessive" "lateness's and absences" rated her "unsatisfactory," and recommended that Human Resources review her "employment status." (Velez Aff. Ex. J: 6/6/06 Performance Review.)*fn4
On May 14, 2006, Walder filed a charge of employment discrimination with the New York State Division of Human Rights ("NYSDHR"). (Velez Aff. Ex. K: Walder NYSDHR Compl.) Specifically, Walder complained of an "unequal distribution of work between the male and female" TAs. (NYSDHR Compl. at 2.) According to Walder, certain male TAs were allowed to perform "coach duties during instruction period," and were "encouraged" to "do college work during district time." (Id.) In contrast, according to Walder, the female TAs were told they had to "stay in [their] classroom assignment at all times" and were never "ask[ed] to stay late and supervise games for extra money." (Id.) Moreover, while Walder asserted that male TAs were allowed to "adjust [their] school day schedule in order to meet duties of coaching" or to allow "more time to study," Walder was given no such "special provision." (Id.) Walder was assigned a first period class even though she had previously been granted a "late entry" to accommodate her lengthy commute. (Id.) Finally, although Walder was "frequently" asked to explain her absences and had to provide "documentation to collaborate [her] sickness[,] . . . male employees d[id]n't have to prove anything"; they could simply "enter the building and leave at various time[s] without permission." (NYSDHR Compl. at 2-3.)*fn5
On August 28, 2006, the EEOC "clos[ed] its file" and issued a right to sue letter, because "[b]ased upon its investigation, the EEOC [was] unable to conclude that the information obtained establishe[d] violations of the statutes." (Am. Compl. Ex. I: 8/28/06 EEOC Right to Sue Ltr.; see also Defs. & Walder Rule 56.1 Stmts. ¶ 8.)
Upon her return to work in September 2006 (Walder Dep. at 87-89), Walder was informed that because she did not have a sick leave balance of ten days as of June 30, 2006, she was not eligible for annualized pay. (Defs. & Walder Rule 56.1 Stmts. ¶ 9; Walder Dep. at 86-89; Am. Compl. Ex. F: 9/12/06 Retleff Ltr. to Walder.) Instead, Walder would be paid on an hourly basis for work actually performed. (Walder Dep. at 86-92; 9/12/06 Retleff Ltr. to Walder; Defs. & Walder Rule 56.1 Stmts. ¶ 9.)*fn6
Walder's illnesses persisted throughout the fall semester,*fn7 and on December 14, 2006, she requested a second FMLA leave of absence. (Walder Dep. at 36, 93, 108; Defs. & Walder Rule 56.1 Stmts. ¶ 10; Velez Aff. Ex. G:12/11/06 Walder Email to Boehlert & 12/14/06 Walder FMLA Request Form.) After initially requesting more medical information from Walder, the WPSD "allowed her to take the [FMLA] leave." (Defs. & Walder Rule 56.1 Stmts. ¶ 10.)*fn8
At the same time Walder made her FMLA leave request, she applied for "Health Leave at Half Pay." (12/11/06 Walder Email; Walder Dep.at 35-37, 92-93; Defs. & Walder Rule 56.1 Stmts. ¶ 11.) Pursuant to Article V, Section 1(g) of the Collective Bargaining Agreement, "[u]pon recommendation of the Superintendent, leaves for personal health reasons may be granted for a maximum period of one (1) year at half-pay to Civil Service employees who have completed at least seven (7) years of satisfactory service in the school system." (Velez Aff. Ex. F: Collective Bargaining Agreement at 11; see Defs. & Walder Rule 56.1 Stmts. ¶ 12.) On December 18, 2006, WPSD Superintendent Timothy P. Connors denied Walder's request. (Velez Aff. Ex. N: 12/18/06 Connors Ltr. to Walder.) Walder contacted Connors to demand an explanation for her denial. (Walder Dep. at 93, 95-96, 108-09.) On January 31, 2007, Connors responded that health leave with half pay "is reserved for those individuals who are suffering from a long term catastrophic illness" and Walder's "current illness" did not qualify her for that benefit. (Velez Aff. Ex. O: 1/31/07 Connors Ltr. to Walder.) Walder took exception to Connors' explanation because the Collective Bargaining Agreement made no mention of "catastrophic illness." (Walder Dep. at 92-96.) Walder warned Connors that "if you are going to deny me based on something in the bargaining agreement, make sure that's what's in the bargaining agreement." (Walder Dep. at 94-95.)
Because Walder had "called [Connors] on something he said that wasn't true," she believed the WPSD was "after [her]." (Walder Dep. 115-16.) Because "of [her] health and [her] safety," Walder opted to resign rather than return to work when her FMLA leave ended. (Walder Dep. 115-16; Defs. & Walder Rule 56.1 Stmts. ¶ 14.) Walder verbally informed the WPSD of her intent to resign, and at a "special meeting on Monday, June 25, 2007 the White Plains Board of Education officially accepted [Walder's] resignation . . . , effective November 30, 2006." (Velez Aff. Ex. P: 7/11/07 Connors Ltr. to Walder.) Walder commenced her lawsuit on or about January 11, 2007. (Defs. & Walder Rule 56.1 Stmts. ¶ 15.)
I. SUMMARY JUDGMENT STANDARD
A. The General Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary "judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Lang v. Ret. Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).
The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.
To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (At summary judgment, "[t]he time has come . . . 'to put up or shut up.'") (citations omitted), cert. denied, 540 U.S. 811, 124 S.Ct. 53 (2003).
In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. ...