The opinion of the court was delivered by: Matsumoto, United States District Judge:
Presently before the court is a motion for summary judgment by defendants City of New York, New York City Department of Education and Jeanette Sosa ("defendants"), pursuant to Federal Rule of Civil Procedure 56, seeking judgment and dismissal of plaintiff Eloida Rodriguez's ("plaintiff" or "Rodriguez") action. In this action, plaintiff alleges employment discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., New York State Human Rights Law, New York Executive Law ("NYSHRL") § 296 and New York City Human Rights Law ("NYCHRL"), Administrative Code § 8-107. Plaintiff alleges that defendants discriminated against her on the basis of her age. (ECF No. 2, First Amended Complaint ("Amend. Compl."), dated April 9, 2009.) For the reasons set forth herein, defendants' motion for summary judgment is granted.
The following facts, taken from the parties' statements pursuant to Local Civil Rule 56.1, are undisputed unless otherwise indicated. The court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in the light most favorable to the nonmoving plaintiff.
A.Plaintiff's Employment with the Department of Education
Plaintiff was born on August 15, 1938. (ECF No. 21, Defendants' Local Rule 56.1 Statement of Undisputed Material Facts ("Defs. 56.1 Stmt.") at ¶ 3; ECF No. 26, Plaintiff's Local 56.1 Statement ("Pl. 56.1 Stmt.") at ¶ 3.) In 1988, plaintiff commenced employment as a paraprofessional with the Department of Education at P.S. 106. (Defs. 56.1 Stmt. at ¶ 4; Pl. 56.1 Stmt. at ¶ 4.) In 2005, plaintiff was assigned to work at P.S. 151 in Brooklyn, New York. (Defs. 56.1 Stmt. at ¶ 5; Pl. 56.1 Stmt. at ¶ 5.) Plaintiff's duties at P.S. 151 were to tend to children and assist them with work. (Defs. 56.1 Stmt. at ¶ 6; Pl. 56.1 Stmt. at ¶ 6.) Plaintiff worked with students in any grade that required her assistance, including with Special Education classes. (Defs. 56.1 Stmt. at ¶ 6; Pl. 56.1 Stmt. at ¶ 6.)
Defendant Sosa was the principal at P.S. 151 during the period in which plaintiff was assigned as a paraprofessional there. (Defs. 56.1 Stmt. at ¶ 7; Pl. 56.1 Stmt. at ¶ 7.) Ms. Sosa testified that she had been employed as an administrator since 1989 or 1990, and served as the principal of P.S. 151 since 2000. (Defs. 56.1 Stmt. at ¶¶ 8-9; Pl. 56.1 Stmt. at ¶¶ 8-9.)
Ms. Jenna Hoban was a special education teacher at P.S. 151 from September 2005 through end of the 2008 school year. (Defs. 56.1 Stmt. at ¶¶ 11-13; Pl. 56.1 Stmt. at ¶¶ 11-13.) From 2005 to 2006, Ms. Hoban taught special education kindergarten students who generally had had learning, emotional and behavioral issues. (Defs. 56.1 Stmt. at ¶ 13; Pl. 56.1 Stmt. at ¶ 13.) From 2006 to 2007, Ms. Hoban taught a first grade class as a collaborative team teacher with two full time special education teachers and a full time general education teacher. (Defs. 56.1 Stmt. at ¶ 14; Pl. 56.1 Stmt. at ¶ 14.) From 2007-2008, Ms. Hoban taught a second grade class as a collaborative team teacher. (Defs. 56.1 Stmt. at ¶ 15; Pl. 56.1 Stmt. at ¶ 15.) For all three years that Ms. Hoban taught at P.S. 151, except for the second semester of her second year, plaintiff was Ms. Hoban's classroom aide. (Defs. 56.1 Stmt. at ¶ 16; Pl. 56.1 Stmt. at ¶ 16.)
During the last year of plaintiff's tenure at P.S. 151, plaintiff had three disciplinary incidents. First, on October 9, 2007, it is undisputed that plaintiff wrote a note, purportedly on behalf of the school, which stated that if a child's parents wanted their child to be fed at school, the child must arrive at school in time for breakfast, and if the parents did not bring their child to school on time in the morning, the child would have to be fed at home, thus indicating that the child would not get breakfast at school (the "10/07 breakfast note"). (Defs. 56.1 Stmt. at ¶ 45; Pl. 56.1 Stmt. at ¶ 45.) The note stated:
Please if you want your child [to] eat in school you has [sic] to send him to school early in the morning for breadfast [sic]. . If he coming [sic] late you has [sic] to feed him home.
(Defs. 56.1 Stmt. at ¶ 45; Pl. 56.1 Stmt. at ¶ 45.)
It is undisputed that the information in plaintiff's note was inaccurate. Although breakfast was officially served at P.S. 151 from 7:40 a.m. to 8:10 a.m., any child who qualified for a free breakfast under the program established by the United States Department of Agriculture, regardless of his or her arrival time at school, would receive breakfast. (Defs. 56.1 Stmt. at ¶ 42; Pl. 56.1 Stmt. at ¶ 42.) If a child arrived at school after 8:10 a.m., the student was sent to the nurse for a pass, and then was brought to the cafeteria for breakfast. (Defs. 56.1 Stmt. at ¶ 42; Pl. 56.1 Stmt. at ¶ 42.)
It is undisputed that Ms. Hoban and Ms. Rivera, the guidance counselor, advised Ms. Sosa that upon receipt of the 10/07 breakfast note from plaintiff, the child's parent came to school very upset, in part, about plaintiff's 10/07 breakfast note. (Defs. 56.1 Stmt. at ¶¶ 44-48.)*fn1 Both Ms. Hoban and Ms. Rivera each wrote a note to Ms. Sosa relaying the details of plaintiff's note and the parent's reaction. Ms. Hoban's note advised that plaintiff previously had been informed to leave the situation with the student alone because ACS was involved. (Defs. 56.1 Stmt. at ¶¶ 43-46.) On October 15, 2007, plaintiff and her union representative met with Ms. Sosa concerning the 10/07 breakfast note. (Defs. 56.1 Stmt. at ¶ 50; Pl. 56.1 Stmt. at ¶ 50.) According to defendants, Ms. Sosa emphasized that the 10/07 breakfast note was inappropriate for several reasons, including that plaintiff did not have approval from the administration to write a letter on behalf of the school; that the letter threatened the parent that the child would be denied food if he/she arrived late, and that the letter was grammatically incorrect and contained an incorrectly spelled word. (Defs. 56.1 Stmt. at ¶ 50.) As a result of this incident, Ms. Sosa suspended plaintiff for two weeks without pay, but could have terminated plaintiff's employment. (Defs. 56.1 Stmt. at ¶¶ 51-52; Pl. 56.1 Stmt. at ¶¶ 51-52.) Plaintiff grieved her suspension with the assistance of a union representative, and a Chancellor's Representative conducted the grievance hearing. (Defs. 56.1 Stmt. at ¶¶ 55-56; Pl. 56.1 Stmt. at ¶¶ 55-56.) The Representative found that plaintiff was properly suspended for two weeks for her unprofessional behavior, that the suspension had a rational basis, and that the administration's actions were not arbitrary or capricious, nor discriminatory. (Defs. 56.1 Stmt. at ¶ 56.)
Plaintiff was involved in a second disciplinary incident to which she objects on the ground that defendants' 56.1 Statement refers to inadmissible hearsay. Defendants state that on March 7, 2008, Ms. Hoban reported by letter to Ms. Sosa (the "Hoban letter") that Ms. Hoban had received a call from a child's family member on March 6, 2008, stating that plaintiff had informed the child that the child could not have breakfast at school because the child had arrived late. (Defs. 56.1 Stmt. at ¶ 58.) According to the Hoban letter, the child's relative was "very distressed" that the child would have to go through the morning without eating. (Defs. 56.1 Stmt. at ¶ 58; ECF No. 22, Ex. J, Letter from Ms. Hoban, dated March 7, 2008.) Ms. Sosa testified that she spoke with the child's relative about the incident, and then spoke to plaintiff and plaintiff's union. (Defs. 56.1 Stmt. at ¶¶ 60-61.) Ms. Sosa also testified that plaintiff admitted to making the statement that if the child arrived late to school, plaintiff would not take her to breakfast, and stated that she did so because plaintiff knew how to handle the situation and Ms. Hoban did not. (Defs. 56.1 Stmt. at ¶¶ 59, 61.)
In addition to objecting to these facts on the ground that they contain inadmissible hearsay, plaintiff denies that she told Ms. Sosa that she knew how to handle the situation better than the teacher did, however, plaintiff does not submit an affidavit or cite to admissible evidence in support of her denial. (Pl. 56.1 Stmt. at ¶¶ 58-61.) Moreover, whether or not plaintiff told Ms. Sosa that plaintiff knew how to handle the situation better than the teacher is not material. Furthermore, the plaintiff's hearsay objections are without merit because defendants are not offering the evidence to prove the truth of the statements asserted, but rather, to establish Ms. Sosa's knowledge and intent. (See ECF No. 27, Defendants' Reply Memorandum of Law in Further Support of Their Motion for Summary Judgment ("Defs. Reply") at 8-10.)
It is undisputed, however, that on March 17, 2006, plaintiff, plaintiff's union representative and Ms. Sosa met to discuss the allegation of professional misconduct that took place on March 6, 2008. (Defs. 56.1 Stmt. at ¶ 63; Pl. 56.1 Stmt at ¶ 63.) In a letter dated April 14, 2008, defendants informed plaintiff that Ms. Sosa had investigated the allegation that on March 6, plaintiff told a student that she would not eat breakfast at school because of the student's late arrival, that Ms. Sosa interviewed several students, and that three students had corroborated the allegation that plaintiff told them that they could not get breakfast if they arrived late to school. (Defs. 56.1 Stmt. at ¶ 63; ECF No. 22, Ex. K, Letter from Ms. Sosa dated April 14, 2008.) Although plaintiff denies that Ms. Sosa told her the results of the investigation on March 17, she does not deny that she received Ms. Sosa's April 14 letter. Plaintiff also denies that any child stated that he or she had been refused breakfast by plaintiff, and cites Ms. Sosa's deposition (ECF No. 22, Ex. C, Deposition of Jeanette Sosa, at 85), in which Ms. Sosa testified that no child told her that he or she had gone hungry because of something plaintiff did. (Pl. 56.1 Stmt. at ¶ 63.) Ms. Sosa's cited testimony, however, does not create a material factual dispute or support plaintiff's statement that "not one child stated that he or she had been refused breakfast by plaintiff." It is undisputed that plaintiff was asked if she wanted to submit a written response to the allegation, and she declined to do so. (Defs. 56.1 Stmt. at ¶ 64; Pl. 56.1 Stmt. at ¶ 64.)
The third disciplinary incident occurred on March 7, 2008, when a seven or eight year old child in Ms. Hoban's class cut his wrist. (Defs. 56.1 Stmt. at ¶ 67.)*fn2 According to defendants, the student was on the rug while a faculty member read a story to the class. (Defs. 56.1 Stmt. at ¶ 71.) The student was fidgety and was having trouble sitting still, so the teacher asked him to go sit in his seat. (Id.) The student became very upset, and when Ms. Hoban went over to calm the student, the student had his hands inside his desk, where he had cracked a pencil sharpener and was attempting to cut his wrist with a sharp plastic part. (Id.) He cut himself inside the desk, took his hands out, and while looking at Ms. Hoban, smeared blood across his forehead. (Id.)
The parties do not dispute Ms. Hoban's testimony about the incident. Ms. Hoban testified that the school called the police and the child's mother, who "had a tendency to have a temper." (Defs. 56.1 Stmt. at ¶ 73; Pl. 56.1 Stmt. at ¶ 73.) Ms. Hoban further testified that when the child's mother arrived, she was very upset and screamed at her child, "This is it. I don't want you anymore. I'm giving you up. I'm giving you away. You cause me all this trouble, I'm done. I'm done." (Defs. 56.1 Stmt. at ¶ 75; Pl. 56.1 Stmt. at ¶ 75; ECF No. 22, Ex. D, Deposition of Jenna Hoban, at 55.)
Ms. Sosa testified that although the child's cut was minor, she decided to send the child to the hospital because of the action taken by the child and the intention behind it. (Defs. 56.1 Stmt. at ¶ 77; Pl. 56.1 Stmt. at ¶ 77.) After the mother calmed down and agreed to take the child to the hospital, Ms. Hoban went into the classroom with the child, where she observed plaintiff bent down in from of the child saying, "why did you do that to your mother? I don't know what's wrong with you." (Defs. 56.1 Stmt. at ¶ 78.)*fn3 Ms. Hoban then took the child out of the classroom. (Defs. 56.1 Stmt. at ¶ 79.) According to defendants, Ms. Hoban was later advised by another teacher that plaintiff continued saying that she felt bad ...