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Elenor Behringer v. Lavelle School For the Blind

December 17, 2010

ELENOR BEHRINGER,
PLAINTIFF,
v.
LAVELLE SCHOOL FOR THE BLIND, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

──────────────────────────────────── ────────────────────────────────────

MEMORANDUM OPINION AND ORDER

The plaintiff, Elenor Behringer (the "plaintiff"), a former Lavelle school principal, brings this action against her former employer, Lavelle School for the Blind ("Lavelle" or the "School"), and Frank Simpson ("Simpson"), the superintendent of Lavelle (collectively, the "defendants"). The plaintiff alleges that she is a recovering alcoholic and that the defendants discriminated against her because of her disability in violation of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. In addition, the plaintiff asserts claims of hostile work environment under these federal, state, and city statutes.*fn1 The plaintiff also asserts a claim of unlawful retaliation under the Family Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq. The defendants move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56, on each of the plaintiff's claims. The plaintiff opposes the motion.

I

Because the defendants specifically moved "in the alternative for summary judgment" pursuant to Federal Rule of Civil Procedure 56, and the parties have submitted evidentiary materials that go beyond the pleadings, the Court will treat the motion as a motion for summary judgment.

The standard for granting summary judgment is well established. "The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs., LP, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Robins v. N.Y.C. Bd. of Educ., No. 07 Civ. 3599, 2010 WL 2507047, at *1 (S.D.N.Y. June 21, 2010).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the non-moving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible . . . ." Ying Jing Gan v. City of N.Y., 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Robins, 2010 WL 2507047, at *1.

II

The following facts are undisputed unless otherwise noted.

A

The plaintiff joined Lavelle as a teacher in 1990 and remained at the school for 17 years in various roles, including school principal. (Compl. ¶ 14; Defs.' 56.1 Stmt. ¶ 1; Pl.'s 56.1 Stmt. ¶ 1.) In 1984, six years prior to her date of hire, the plaintiff claims she was diagnosed an alcoholic. (Behringer Dep. 103; Defs.' 56.1 Stmt. ¶ 1; Pl.'s 56.1 Stmt. ¶ 1.) The plaintiff obtained treatment from Alcoholics Anonymous for her condition, and remained sober thereafter and during her first three years as a Lavelle teacher. (Defs.' 56.1 Stmt. ¶ 1; Pl.'s 56.1 Stmt. ¶ 1.) In 1993, while teaching at Lavelle, the plaintiff experienced a relapse. (Compl. ¶ 18; Defs.' 56.1 Stmt. ¶ 2; Pl.'s 56.1 Stmt. ¶ 2.) From January 1993 to September 1993, the plaintiff took disability leave and was hospitalized at different facilities for her alcoholism and related conditions. (Compl. ¶ 18; Defs.' 56.1 Stmt. ¶ 4; Pl.'s 56.1 Stmt. ¶ 4.) The defendants note that the plaintiff's 4 benefits claim forms from this period do not reflect medical treatment for alcoholism; the plaintiff alleges, however, that certain medical documents from this timeframe do reference her addiction to alcohol, and the plaintiff submitted a disability benefits form to Lavelle in which she cited her alcoholism. (Behringer Dep. 131, 141; Goldberg Cert. Exs. I, J, N; Defs.' 56.1 Stmt. ¶ 4; Pl.'s 56.1 Stmt. ¶ 4.)

The plaintiff returned to work at Lavelle in September 1993 and was eventually appointed school principal. (Defs.' 56.1 Stmt. ¶¶ 9, 11; Pl.'s 56.1 Stmt. ¶¶ 9, 11.) Since September 1993, the plaintiff has been sober, although she continues to attend Alcoholics Anonymous meetings. (Defs.' 56.1 Stmt. ¶ 3; Pl.'s Opp'n Br. 4.) The plaintiff told some of her Lavelle colleagues that she was a recovering alcoholic; staff health forms that the plaintiff submitted to the School between 2002 and 2007, however, never indicated her status as such. (Behringer Dep. 111-13; Behringer Dep. Pl.'s Ex. 11; Goldberg Cert. Ex. O, P; Defs.' 56.1 Stmt. ¶¶ 3, 5; Pl.'s 56.1 Stmt. ¶¶ 3, 5.)

In June 2001, Frank Simpson ("Simpson") was hired as Superintendent of Lavelle and became the plaintiff's supervisor. (Defs.' 56.1 Stmt. ¶ 11; Pl.'s 56.1 Stmt. ¶ 11.) Simpson reappointed Behringer as school principal in 2002 for the 2002-- 2003 school year. (Defs.' 56.1 Stmt. ¶ 21; Pl's 56.1 Stmt. ¶ 21.) In August 2002, Behringer received a salary increase and an award for her work. (Defs.' 56.1 Stmt. ¶ 22; Pl.'s 56.1 Stmt. ¶ 22.) On October 7, 2003, Simpson issued the plaintiff a review of her job performance, which stated that she "met expectations." (Defs.' 56.1 Stmt. ¶ 23; Pl.'s 56.1 Stmt. ¶ 23.)

On October 23, 2003, Simpson divided Lavelle into three sections, and he appointed the plaintiff to the post of Lower School principal. (Defs.' 56.1 Stmt. ¶ 25; Pl.'s 56.1 Stmt. ¶ 25.) Diane Tucker ("Tucker") became principal of the Upper School, and Lorrie Nanry ("Nanry") was appointed principal of the Pre-school. (Defs.' 56.1 Stmt. ¶ 26; Pl.'s 56.1 Stmt. ¶ 26.) On January 6, 2005, Simpson issued the plaintiff a performance review stating that she had again "met expectations" for the period from September 2003 to December 2004. (Compl. ¶ 32; Defs.' 56.1 Stmt. ¶ 28; Pl.'s 56.1 Stmt. ¶ 28.)

The plaintiff's father fell ill during April 2005. (Defs.' 56.1 Stmt. ¶ 30; Pl.'s 56.1 Stmt. ¶ 30.) In May 2005, the plaintiff submitted the necessary forms to procure FMLA leave to care for him on an intermittent basis. (Pl.'s 56.1 Stmt. ¶ 31; Defs.' 56.1 Stmt. ¶ 31.) Thereafter, the plaintiff took FMLA leave on May 2--May 13, May 31--June 7, and October 11--October 17, 2005, and traveled to Virginia, where her father was receiving treatment. (Defs.' 56.1 Stmt. ¶¶ 30-31; Pl.'s 56.1 Stmt. ¶¶ 31-32.) The plaintiff took FMLA leave again November 2--18, 2005, to visit her father where he resided on Grand Bahama Island. (Defs.' 56.1 Stmt. ¶ 34; Pl.'s 56.1 Stmt. ¶ 34; Simpson Aff. Ex. H.) While on Grand Bahama Island, the plaintiff participated in a triathlon on Saturday, November 5, 2005. (Pl.'s 56.1 Stmt. ¶ 35.)

Simpson claims that, during the plaintiff's absence, Lavelle employees including Nanry and Tucker complained that Behringer was misusing her FMLA leave to participate in the triathlon, and they requested that he investigate. (Defs.' 56.1 Stmt. ¶ 36; Defs.' Mot. 8.) After an Internet search, Simpson discovered that Behringer had in fact participated in the triathlon. (Defs.' 56.1 Stmt. ¶ 37; Pl.'s 56.1 Stmt. ¶ 38.) Upon the plaintiff's return, Simpson inquired into the plaintiff's activities during her FMLA leave and informed her of administrative concerns and requirements regarding her leave. He then issued the plaintiff a memorandum dated November 23, 2005, that asked that she be "more precise in accounting for the days used for specific care of [her] father and any time spent for other purposes during [the] period from November 2--18, 2005." (Behringer Dep. Ex. 6; Simpson Aff. Ex. H; Defs.' 56.1 Stmt. ¶ 38; Pl.'s 56.1 Stmt. ¶ 38.) Behringer responded with a written memorandum dated December 15, 2005, in which she complained about Simpson's inquiry on the grounds that Saturday was a "non-FMLA day," and because the defendants had included four holidays in her FMLA leave day count. (Compl. ¶ 33; Behringer Dep. Ex. 6; Pl.'s 56.1 Stmt. ¶ 39.) Simpson sent this memorandum to the School's attorney, Vincent D'Andrea ("D'Andrea"). (Simpson Dep. 104-05.) The plaintiff also complained orally to D'Andrea on December 21, 2005. (Pl.'s Opp'n Br. 22.) Simpson testified that D'Andrea notified him of Behringer's complaint, namely that she had said, "they're [xxx]ing with my FMLA days . . . I have a labor lawyer." (D'Andrea Dep. 25.) In early January 2006, Simpson told the plaintiff he thought her manner of complaining to D'Andrea with such language in the School hallway was inappropriate. (Simpson Dep. 111.)

On January 11, 2006, Simpson issued the plaintiff an annual performance evaluation for the period from January 2005 to January 2006, in which he gave the plaintiff an overall rating of "below expectations." (Defs.' 56.1 Stmt. ¶¶ 42-44; Pl.'s 56.1 Stmt. ¶¶ 40, 42, 44; Defs.' Mot. 8.) The plaintiff alleges that the performance review contained false criticisms of her job performance. (Pl.'s 56.1 Stmt. ¶ 44.) Simpson maintains, however, that the review was based on accurate data he had collected for months, and that the plaintiff's performance had been "terrible," both on an absolute and relative basis. (Simpson Aff. ¶ 61; Defs.' Mot. 8; Defs.' 56.1 Stmt. ¶ 43.)

The defendants offer several reasons for this poor performance evaluation, including, among other things: the plaintiff's alleged excessive use of Lavelle telephone lines for personal long-distance and international telephone calls; her alleged failure to consult other school principals regarding scheduling matters; her alleged refusal to use didactic "tangible cues" in the classroom; and her alleged frequent tardiness. (Defs.' Mot. 8-9; Defs.' 56.1 Stmt. ¶¶ 45, 47-48.)

The plaintiff denies these allegations. (Pl.'s 56.1 Stmt. ¶¶ 45, 47-48.) For example, the plaintiff avers that she made long-distance telephone calls with the defendants' permission and reimbursed the defendants for these calls, and that she did use "tangible cues" in the classroom. (Behringer Aff. ¶¶ 5-6.)

Simpson and the plaintiff discussed her negative review, and, on January 19, 2006, the plaintiff requested a reevaluation of her performance, to which Simpson agreed. (Defs.' 56.1 Stmt. ¶ 50.) On April 12, 2006, Simpson issued the plaintiff a new, more favorable evaluation, and he reappointed her as principal to the Lower School for the 2006 -- 2007 school year. (Defs.' Mot. 10; Defs.' 56.1 Stmt. ¶ 51; Pl.'s 56.1 Stmt. ¶ 51.)

According to the plaintiff, she initially thought that the new review would supersede the old; however, the older, negative review was apparently never destroyed and was retained by Simpson. (Pl.'s 56.1 Stmt. ¶ 50.) Simpson does not recall telling the plaintiff that the January 2006 evaluation would be replaced. (Simpson Dep. 121-22.) While the April 2006 evaluation was dated "January 2005 -- April 2006," Simpson testified during his deposition that the date should have read "January 2006 -- April 2006," for a four-month period only. (Simpson Dep. 150; Behringer Dep. Pl.'s Ex. 53.) In their reply brief, however, the defendants claim that the negative review of January 2006 was rescinded. On February 28, 2006, the plaintiff's father died, and the plaintiff took bereavement leave. (Pl.'s Opp'n Br. 6.)

B

During a labor arbitration hearing in an unrelated case on June 23, 2006, the plaintiff testified on behalf of Lavelle. (Defs.' 56.1 Stmt. ¶ 52; Defs.' Mot 10.) There, the plaintiff told Simpson and D'Andrea that she was a recovering alcoholic and that she attended Alcoholics Anonymous meetings. (Defs.' 56.1 Stmt. ¶ 52; Defs.' Mot 10.) The defendants contend that news of Behringer's alcoholism was not surprising to Simpson, and that Simpson had reason to believe as early as 2001 that Behringer was a recovering alcoholic. (Ans. ¶ 40; Defs.' 56.1 Stmt. ¶¶ 19, 52; Defs.' Mot. 6.) During his deposition, Simpson also testified that he had heard rumors about the plaintiff's alcoholism, but could not provide any precise date on which he became aware of it. (Simpson Dep. 157-58.) The plaintiff vehemently disagrees with this account. She notes that, in Equal Employment Opportunity Commission ("EEOC") proceedings in 2007 and 2008, the defendants represented that Simpson learned the plaintiff was a recovering alcoholic in June 2006. (Pl.'s 56.1 Stmt. ¶ 19.) Testimony given by Nanry and Tucker before the EEOC corroborates this claim. (Behringer Dep. Pl.'s Exs. 63, 66.) The plaintiff contends that she originally believed Simpson might have known about her alcoholism prior to June 2006, but that her belief changed once she was presented with materials from the EEOC proceedings. (Behringer Dep. 634-648.)

The defendants thus maintain that Simpson's behavior toward the plaintiff did not change on account of the June 2006 disclosure, while the plaintiff asserts that Simpson's behavior toward her did change because of this information. For example, the plaintiff alleges that, after June 2006, Simpson (1) screamed at and verbally abused her and made her cry during a summer meeting; (2) expressed surprise on the first day of school in fall 2006, when the plaintiff arrived to work at Lavelle; (3) asked during a December 2006 holiday party if the plaintiff wanted a presumably alcoholic drink―a gesture that the plaintiff viewed as malicious; and (4) issued the plaintiff a written warning in January 2007 for her failure to "swipe out" of work in an appropriate manner. (Pl.'s 56.1 Stmt. ¶¶ 54, 55, 56, 57, 58.) The plaintiff also asserts that Simpson spoke to her in a generally threatening tone, and was cold to her. (Pl.'s Opp'n Br. 8.) In turn, the defendants argue that (1) the plaintiff was never singled out during the meetings and that Simpson had also become angry with the School's other principals, Nanry and Tucker; (2) the remark at the outset of the school year-"I'm surprised you came back"-was meant to be sarcastic; (3) Simpson was simply acting as a host at the holiday party, and intended to be gracious, not malicious; and (4) Simpson had a legitimate basis for issuing the written warning. (Defs.' 56.1 Stmt. ¶¶ 54, 56, 57, 58.)

In January 2007, after Simpson issued the written warning, the plaintiff requested access to her personnel file and was told that the file had been lost. (Compl. ¶ 45; Pl.'s Opp'n Br. 8.) The plaintiff asserts that information within this lost file supports evidence of her claims. (Compl. ¶ 46.) Simpson subsequently issued the plaintiff a memorandum dated January 5, 2007, stating that the School would investigate her missing file. (Behringer Dep. Pl.'s Ex. 55.) In this memorandum, Simpson noted that the plaintiff's "medical information, security information, original application, and references" were not missing and were maintained in other files. (Behringer Dep. Pl.'s Ex. 55.) The plaintiff alleges that she never received any subsequent documents regarding the investigation. (Compl. ¶ 47.)

C

On February 13, 2007, an unfortunate incident involving a female student of the Lower School took place in Lavelle's gymnasium. The student had a tantrum during which she pulled down her pants and underwear. (Defs.' 56.1 Stmt. ¶ 59; Pl.'s 56.1 Stmt. ¶¶ 59-60.) Certain Lavelle personnel were present in the gym: Susan Kiley, a school nurse; Natasha Mousami, the student's teacher; Karen Gerweck ("Gerweck"), a gym teacher; and Paco Secada ("Secada"), a job coach; as were one or two students under Secada's supervision. (Defs.' 56.1 Stmt. ¶ 59; Pl.'s 56.1 Stmt. ¶ 59.) The plaintiff intervened, and maintains that she did so to keep general order and also because Secada and one of his male students were looking at the girl's buttocks. (Defs.' 56.1 Stmt. ¶ 60; Pl.'s 56.1 Stmt. ¶ 60.) The plaintiff alleges that she repeatedly and politely asked Secada to leave the gymnasium and take his student out of the vicinity. (Pl.'s 56.1 Stmt. ¶ 60.) After about five to ten minutes, the incident ended. (Behringer Dep. 421.)

The plaintiff alleges that she then spoke with Secada's supervisor, Gary Wier ("Wier"), and let him know that Secada and his student were too close to the young girl in the gymnasium and ...


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