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Batyreva v. New York City Dep't Education

October 1, 2010


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge


Pro se Plaintiff Olga Batyreva ("Batyreva") brings this action against her former employer, Defendant New York City Department of Education ("DOE"), asserting claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the First Amendment of the United States Constitution. She alleges that Defendant terminated her employment on the basis of her national origin (Russian), her age, and/or in retaliation against her protected speech. Batyreva seeks compensatory damages for "emotional distress, anguish, anxiety, . . . and other psychological injury." (Second Amended Complaint ("2d Am. Compl.") ¶ 28.)

In one form or another, the State Division of Human Rights ("SDHR"), the United States Equal Employment Opportunity Commission ("EEOC"), an administrative arbitrator, and the New York State courts, twice, have heard and rejected allegations based on the same underlying facts at issue here. Batyreva persists in her attempts to relitigate these claims before this Court, as well. After referring the general pretrial and dispositive motions in the case to Magistrate Judge Debra C. Freeman, by Order dated September 18, 2008, this Court ruled that Batyreva is collaterally estopped from bringing any claims that arose before May 31, 2006-the date she brought her first action in state court. The Defendants now bring a motion for summary judgment dismissing all other claims. On August 23, 2010, Magistrate Judge Freeman issued a 55-page Report and Recommendation ("R&R"), advising the Court to grant DOE's motion for summary judgment in its entirety. The Court has reviewed the R&R and Batyreva's 19 pages of objections timely filed on September 7, 2010. For the reasons that follow, the Court adopts Magistrate Judge Freeman's findings and recommendations. The motion for summary judgment is granted.


I. Facts*fn1

Batyreva, a 72-year-old Russian immigrant, worked for DOE as a math teacher from 1999 until December 2006, when she was transferred out of the classroom and reassigned to the Manhattan Regional Operation Center, better known as the "Rubber Room," pending investigation of "serious" allegations made against her. Batyreva received numerous negative evaluations and reviews from 2003 to 2006, and was ultimately terminated following a hearing in 2009. In a number of actions ultimately decided against her, Batyreva has challenged these negative reports and her termination as motivated by discriminatory and/or retaliatory motives.

A. Batyreva's Employment with the DOE

Batyreva was born in Russia in 1938, and moved to the United States in 1996. In September 1999, Batyreva began working for DOE as a mathematics teacher at the Wings Academy in the Bronx, where DOE eventually granted her tenure. In September 2003, Batyreva was transferred to Murry Bergtraum High School ("MBHS"), a DOE school in Manhattan, where she continued to teach math.

Batyreva speaks English with a Russian accent. Although Batyreva made minor grammatical mistakes in the classroom on a regular basis, there is some dispute about the degree to which Batyreva's students had difficulty understanding her spoken English. (See Pl. 56.1 Stmt. at ¶ 6d; Declaration of André L. Lindsay In Further Support of Defendant's Motion for Summary Judgment, sworn to Feb. 26, 2010, Ex. K; id. Ex. T; id. Ex. AA; id. Ex. JJ.)

On May 31, 2006, after receiving several unsatisfactory end-of-year ratings, Batyreva filed an Article 78 petition in the Supreme Court of the State of New York, New York County ("New York Supreme Court") seeking reversal of the ratings on the basis that they were motivated by discrimination because of her national origin. (Declaration of Ivan A. Mendez, Jr., sworn to Nov. 2, 2007 ("Mendez Decl.") (annexed to Notice of Motion to Dismiss, dated Nov. 2, 2007), at Ex. B). The court dismissed Batyreva's petition, and the Appellate Division affirmed. Batyreva v. New York City Dept. of Educ., 854 N.Y.S.2d 390 (1st Dep't 2008). This action is the basis for the Court's September 18, 2008 Order, discussed below, collaterally estopping Batyreva from asserting Title VII claims which arose prior to May 31, 2006.

B. Batyreva's Actions That Allegedly Provoked Retaliation

1. Batyreva's Letters about the Regents Examination

In 2004, Batyreva and Yevgeniy Gilman, another math teacher at MBHS, jointly wrote to the Principal of MBHS, Barbara Esmilla, the DOE's Office of Special Investigation, and the DOE's Division of Assessment and Accountability ("DAA"), stating that MBHS teachers had violated the grading procedures for the January 2004 Regents Examination. (Declaration of André L. Lindsay, Esq., sworn to Dec. 11, 2009 ("Lindsay Decl."), Ex. DD, at 2, 3.) Both the DAA and the State Education Department informed Batyreva that no violation had occurred.

Batyreva alleges that, on July 1, 2005, she also addressed a similar complaint about the Regents Examination to Special Commissioner Condon, who "renewed the case and transferred it to the Chancellor's Office of Special Investigations." (2d Am. Compl. ¶ 64.) Batyreva states that she has received no subsequent response from the Office of Special Investigations. (Id.) Finally, on December 10, 2006, Batyreva asserts that she wrote a letter to DOE Chancellor Joel Klein proposing that the exams be graded by teachers from other schools. (2d Am. Compl. ¶ 32.) Although Batyreva states that she sent copies of this 2006 letter to Mayor Michael Bloomberg and Governor Eliot Spitzer, she does not claim to have sent the letter to anyone else. (See id.)

2. Batyreva's State Division of Human Rights Complaint

In June 2004, Batyreva filed a complaint with the SDHR, alleging national origin discrimination. (See Lindsay Decl. Ex. GG ("SDHR Complaint").) In her SDHR Complaint, Batyreva alleged that Assistant Principal ("AP") Marion Tang discriminated against Batyreva because of Batyreva's Russian national origin. (See id. ¶¶ 3--5.) AP Tang's allegedly discriminatory conduct included, among other things, telling Batyreva to leave MBHS on Batyreva's first day there, humiliating Batyreva in front of co-workers and students, and writing false statements about Batyreva. (See id. ¶ 4.) Batyreva's SDHR Complaint did not make allegations about any individuals other than AP Tang. (See id. ¶¶ 2--5; Def. 56.1 Stmt. at ¶ 108.) Furthermore, Batyreva did not assert an age discrimination claim in her SDHR Complaint. (See SDHR Complaint; Lindsay Decl. Ex. GG, ("SDHR Order").)

In an Order dated December 29, 2006, the SDHR concluded that no probable cause existed to believe that DOE had engaged in the unlawful discriminatory practices alleged in Batyreva's SDHR Complaint. (See SDHR Order at 1.) On January 4, 2007, Batyreva's attorney made an application to the EEOC for a review of the SDHR determination. (Lindsay Decl. Ex. HH, at 2.) On March 7, 2007, the EEOC adopted the findings of the SDHR and sent Batyreva a Right to Sue letter. (Lindsay Decl. Ex. HH, at 1.)

3. Batyreva's Efforts To Assist Joy Hochstadt

In June 2007, Batyreva submitted an affidavit in support of Hochstadt, a disabled DOE teacher, in a state-court proceeding about disciplinary actions taken by DOE against Hochstadt. A few months later, at an administrative hearing, Batyreva testified regarding purported "age and health discrimination" against Hochstadt. (See Def. Mem. at 14--15; 2d Am. Comp. ¶ 48.)

C. DOE's Alleged Adverse Actions Against Batyreva

Batyreva contends that, throughout her employment by DOE, she was subjected to a wide range of adverse employment actions that were discriminatory and/or retaliatory. These actions consisted largely of negative performance evaluations and culminated in Defendant's termination of Batyreva in 2009. They are summarized below.

1. Actions Predating May 31, 2006

As noted above, this Court's September 18, 2008 Order barred Batyreva from asserting claims based upon conduct by DOE that predated May 31, 2006. Although such conduct cannot give rise to actionable claims in this matter, the conduct may provide relevant background to the pending motion.

Prior to May 31, 2006, Batyreva was the subject of at least fourteen "Observation Reports" by her supervisors-thirteen "unsatisfactory" and one "satisfactory." The stated reasons for these unsatisfactory ratings included Batyreva's deficient lesson plans and lack of classroom management skills. Batyreva does not contend that she received any other satisfactory ratings while at MBHS, although she has offered two letters complimenting her work, written in 2000 and 2002 by the Principal of Wings Academy. (Plaintiff's Affirmation in Opposition to Motion for Summary Judgment, sworn to January 15, 2010 ("Pl. Aff."), Exs. D1, D2.) In addition to these unsatisfactory observation ratings, Batyreva also received the following, all before May 31, 2006: year-end unsatisfactory ratings for the 2003-2004 and 2004-2005 academic years (Pl. 56.1 Stmt. ¶ 35; Def. 56.1 Stmt. ¶ 55); two "counseling memoranda" advising Batyreva about noise issues in her classroom and the students' improper access to Batyreva's attendance logs (Def. 56.1 Stmt. ¶¶ 5--6, 61--63); and a letter concerning Batyreva's purported failure to engage "every student" in her classes. (Id. ¶¶ 59--60.)

2. Julian's Observation Report

On May 12, 2006, Principal Esmilla asked Grace Julian, the former Principle of MBHS, to conduct a classroom observation of Batyreva's fourth period class. Julian rated the lesson unsatisfactory. (See Lindsay Decl. Ex. W.) In her Observation Report, signed June 2, 2006, Julian attributed the unsatisfactory rating to Batyreva's "poor classroom management skills," "poor lesson management skills," and "poor questioning skills," describing Batyreva's deficiencies in each of those areas. (Lindsay Decl. Ex. W, at 2-4).) Batyreva acknowledged her receipt of this report by a signature dated June 6, 2006. (See id.)

3. Batyreva's Year-End 2005-2006 Rating

On June 22, 2006, Batyreva received an overall unsatisfactory rating for the 2005-2006 school year. Batyreva contends that this rating was inadequately based on only two observation reports, while Batyreva's overall ratings for the 2003-2004 and 2004-2005 school years had been based on seven and four observation reports, respectively. (See id. Ex. X.) Furthermore, one of these reports was authored by AP Steven Rubinstein, who was fired in March 2006 and ...

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