The opinion of the court was delivered by: Wall, Magistrate Judge:
Before the court, on consent of the parties, are three motions: (1) a motion for summary judgment by defendant Darnel C. Powell (DE & ); (2) a motion for summary judgment by defendants School District, Board of Education, Root, Clark-Snead and Spencer ("the District Defendants") (DE& ); and (3) plaintiff's motion to amend the complaint ([DE[50-52]). The motions for summary judgment are opposed by the plaintiff (DE & , and the motion to amend is opposed by the defendants (DE & [53-54]). For the reasons set forth herein, Powell's motion for summary judgment is granted in part and denied in part; the District defendants' motion for summary judgment is granted; and the plaintiff's motion to amend is denied. All claims are dismissed except those against Darnel Powell in his individual capacity pursuant to New York State Humans Rights Law §296(1) and intentional infliction of emotional distress. The court will not exercise supplemental jurisdiction over those state law claims, but Alexander may pursue them in state court if she chooses to do so. The Clerk of the Court shall enter judgment accordingly.
Plaintiff Ann Alexander filed the Complaint in this action in February 2010, asserting claims based on alleged employment discrimination. She alleges (1) sexual harassment; (2) intentional infliction of emotional distress; (3) negligent infliction of emotional distress; (4) hostile work environment; and (5) respondeat superior as her causes of action. Complaint, DE. Although she does not specify the statutory bases for her causes of action in those sections, aside from a reference to Title VII in her first cause of action, she does allege that the action is brought pursuant to Title VII, section 1981, the Fourteenth Amendment, and the New York Human Rights Law§296. Complaint, DE, ¶1. She bases subject matter jurisdiction on Title VII. Id. ¶2.
The facts underlying the dispute are set forth here as stated in the Complaint and in the parties' 56.1 Statements. I note that the plaintiff's counterstatements are nearly useless to the court on consideration of these motions. Many, if not most, of the defendants' factual allegations are flatly denied by the plaintiff, without any citations to evidentiary support for the denials, and often regarding facts which are fully supported by documentary evidence or Alexander's own deposition testimony. In these instances, I deem the defendant's statement of fact to be admitted. See Local Rule 56.1(d). In the rare instances where the plaintiff interposes a viable denial of a material fact, it is noted. Not every fact set forth in the 56.1 Statements is repeated here, but only those facts necessary to a determination of the motions. I will address each of the motions separately, and begin with the facts as set forth in the District Defendants' 56.1 statement and the counterstatement on that motion. Additional facts from Powell's statement and the plaintiff's counterstatement to his motion are addressed separately. Facts Underlying the District Defendants' Motion:
Alexander began working for the Westbury School District at the middle school in 1993, and was granted tenure in 1995. She is still employed by the District at the middle school. The District adopted a sexual harassment policy in 1997, and Alexander received a copy of it in 1997 and 2002. Alexander Dep., Ex. D at 21-22, Ex. G*fn1 . Defendant Powell, the principal of the middle school from 2003 to 2009, also received a copy when he was hired in July 2003. Powell Dep., Ex. I at 102, Ex. H. Powell also acknowledges that he received training on the topic of sexual harassment at annual conferences. Ex. I at 102-03.
The defendants assert that Alexander had some disciplinary problems prior to the alleged harassment, but those details are irrelevant to the resolution of these motions and need not be repeated here.
The District Defendants' 56.1 Statement next moves on to the incidents of alleged harassment in 2005. Alexander denies almost all of the factual allegations, despite the fact that they are supported by her own deposition testimony, and she offers no evidentiary support at all for her denials. The facts set forth and evidenced by the defendants and deemed admitted*fn2 by the plaintiff's unsupported denials are as follows. See generally DE[55-21], ¶¶41-60, Ex. D, 27-67.
In September 2005, Powell approached Alexander at a school dance and invited her to have lunch with him the following Monday. Alexander at first ignored his invitation, but later agreed to the lunch but did not show up for it. Powell did not comment on her failure to appear for lunch and did not repeat the invitation until approximately December 2008. After September 2005, Powell allegedly called Alexander into his office occasionally for meetings, at which he would tell Alexander about complaints made against her by parents or students, but not identifying the complainants. Alexander admits that Powell had no obligation to identify the complainant and that she did not ask the union if he was required to do so. She received no disciplinary notices about the alleged complaints. When Alexander got up to leave the room, Powell would reach out to embrace and kiss her. (Alexander admits this.) She turned her face so that the kisses landed on her cheek, and Powell never kissed her on the lips. At one meeting, Powell allegedly told Alexander that he had been interested in her years before, as "a young boy," but now that he was a "damn ass grown man" they could "take it out of the building." Alexander responded by gesturing toward pictures of Powell's wife and children, indicating that she was flattered, but she respected marriage. She then walked out of his office. Powell never told Alexander that he could do anything for her career if she gave in to his advances.
Alexander claims that during the 2005/06 school year Powell tried to transfer her to the MARS program, which assisted students needing extra care, for the following year. Powell helped to found the MARS program and testified that he did not view asking someone to join it as an insult, although Alexander viewed it as punishment. Alexander told him she did not want to work in the MARS program, but he told her they needed "heavy hitters" like her. Toward the end of the 2005-06 school year, Alexander went to defendant Robert Root to complain about the proposed MARS assignment. Root indicated he would take care of the situation, as the proposed assignment would have required Alexander to teach a number of seventh grade classes, which she was not certified for. Alexander is certified to teach grades K-6. Alexander says that Root handled the situation to her satisfaction. At the time she went to Root about the MARS issue, Alexander did not mention any incidents of harassment by Powell. Powell issued an unsatisfactory review at the end of the 2005-06 year (incorrectly pleaded as the 2006-07 school year in the Complaint), but the union got involved and the review was amended to satisfactory.
The District hired defendant Spencer as an assistant principal at the middle school for the 2006-07 school year, after Powell had sought Alexander's participation in the MARS program. During the year, Alexander once referred to her students as "acting like a bunch of crack babies," which she admitted was an inappropriate remark that came from her frustration with students who had serious disciplinary problems. At the end of the 2006-07 school year, Spencer gave Alexander a satisfactory summative evaluation. Ex. R.
In September 2007, Alexander was in the middle school's crowded main office talking to a colleague when Powell interrupted and said "I'm going to get my sugar." Powell then leaned over the counter and kissed Alexander on the cheek. In Spring 2008, Alexander was leaving the building when Powell, who was outside the building, motioned for her to wait for him. He asked her why she was in a hurry and she said she was on her way to class. Powell then allegedly put his hands on Alexander's shoulders, looked at her, and said "You are going to give me some." Alexander asked, "some of what?" and he answered "You know what." He then walked away and said they would discuss it another time.
In August 2008 Alexander saw Powell in the school parking lot and he asked her if she had ever hear of or been to "Hedonism." She had not heard of Hedonism at the time, but now believes it to be "a place in Jamaica where you go for free sex." Powell told her he had been there and if she ever went she should think of him. As Alexander walked to her car, Powell followed her and asked if he could drive her car. She told him he could drive it around the block. Powell said he wanted Alexander in the car and asked when she was going to "fuck him." Alexander was shocked and asked Powell how his wife and daughters were doing. He said they were "fine." She told him to have a good summer, got in her car and drove away. When these events allegedly occurred, Alexander had not yet complained to any District Board members, administrators or supervisors about any inappropriate behavior by Powell to her. Nor did she report this incident to any District administrators or union representatives until November 2008. Alexander says that she had not complained prior to August 2008 because she was afraid she would be transferred to a first or second grade class, but the record also reflects that she told union president Michael Burger that she did not come forth sooner because, as an African American female, she did not want to see the reputation of an African American male, Powell, tarnished. DE-55-21], Def. 56.1 Stmt., ¶¶139-40; Burger Dep, Ex. JJ, at 70-71 & 79.
Alexander was observed in her classroom in November 2008 by Christie Thiel, a new Department Chairperson. The parties disagree on details of whether Powell had directed Michelle Peterson, the new English Language Arts Director to whom Thiel reported, to observe Alexander and give her a bad evaluation, whether Powell had told Thiel to do the observation, and whether Thiel had orally reported to Alexander that her performance was satisfactory. Thiel has submitted an affidavit in support of the District Defendants' motion, and she swears that she was never directed to give Alexander a negative performance evaluation, that she was asked by Peterson to observe Alexander, that she observed Alexander in November 2008 and had "various concerns with Ms. Alexander's performance" at that time. Ex. T, Thiel Aff., ¶¶3-7. Saying that she was not "anxious to have a confrontation with Ms. Alexander," she went to Powell when she considered giving an unsatisfactory rating. She reports that Powell told her not to write up the report, as he wanted to give Alexander another chance. Thiel believes that Powell then asked Peterson to do the evaluation. Alexander continually asked Thiel for a written report of the observation, and Thiel completed the report in response to Alexander's demands. See Ex. U. Thiel checked the satisfactory box, based upon her "understanding that Ms. Alexander would be getting reviewed again." Id. ¶¶8-12. She concludes by saying that she is "unaware of any directive from anyone to issue a negative performance evaluation to Ms. Alexander" and that she never told anyone that there had been such a directive. Id. ¶13. Although Alexander disputes a number of these details, she has pointed to no sworn testimony or other evidence that supports her position. I do note, however, that Alexander states that Thiel finally wrote up the report because Alexander went to the union president, who phoned defendant Root, who phoned Powell and told him the report had to be in writing. DE[56-15], ¶124.
Michelle Peterson has also submitted an affidavit. Ex. S. She states that Powell never told her to give Alexander a negative performance evaluation. She did ask Thiel to conduct the Alexander evaluation. Peterson was later told by Powell to conduct another observation of Alexander. Powell told her that Thiel had some concerns about Alexander's performance, but he wanted to give her a second chance. Peterson observed Alexander in January 2009 and issued a satisfactory performance rating. See Ex. V. She states that she is unaware of any directive from anyone to issue a negative performance evaluation to Alexander, and thus never told anyone there was such a directive. As with Thiel, although Alexander disputes a number of Peterson's claims, she has pointed to no sworn testimony or other evidence that supports her position.
In November 2008, District guidance counselor Lisa Maldonado told her union representative that she had been sexually harassed by Powell. The union rep reported the allegation to Root, who was the District's Title IX officer from 2003 to 2010. Root met with Maldonado and investigated. Powell denied the allegations. Root issued a memo on December 2, 2008 that concluded that both sides seemed credible and that an outside investigator should be retained. Ex. Y. Root's memo also recommended that Maldonado be assigned to report to the assistant principals and Powell be directed to avoid direct contact with Maldonado. Id. The defendants say that by the time the union asked for an outside investigator, defendant Clark-Snead had already decided to retain one. After Maldonado's complaint, Alexander told union president Michael Burger that she too had been sexually harassed by Powell. Burger asked Alexander why she had not come forward sooner and, as noted earlier, Burger reports that Alexander said that she did not want to see an African-American male (Powell) have his name tarnished. Alexander says that she was also afraid of being transferred.
The District hired attorney Bronwyn Black to conduct an investigation. Black interviewed a number of people, including Alexander and Powell, and concluded that Maldonado's and Alexander's allegations were more credible than Powell's denials. The defendants say that she recommended that the District follow the proper procedures for matters in which there is a finding of sexual harassment. See Black memo, Ex. Z at 36. Alexander sets forth a lengthy denial of this in her 56.1 counterstatement, but without any evidentiary notation or support. The gist of her "denial" is that Black found Powell to be guilty of sexual harassment.
In February 2009, the District suspended Powell and brought disciplinary charges against him pursuant to New York Education Law §3020-a. While Powell was suspended, a supplemental investigation was conducted and a supplemental memo issued by Black. Ex. AA. The outcome was the same. Powell never returned to work for the District, and the 3020-a hearing officer ultimately believed that Powell had committed the acts alleged. The District adopted the hearing officer's findings and terminated Powell's employment. Alexander has testified that she has not been sexually harassed by anyone in the District since Powell left.
Before the 2006-07 school year, Alexander had asked Powell if she could start teaching Academic Intervention Services ("AIS") classes, which involved the provision of additional services to students needing extra help in math or reading. Powell granted the request and Alexander began teaching AIS classes. Alexander continued to teach AIS classes in the 2007-08 and 2008-09 school years. In or about March or April of 2009, the District Defendants report, there arose a need to transfer a teacher named Michael Marrin. Defendant Root believed that a three-way transfer, which would involve a teacher named Carol Clark moving from an elementary school to the middle school, Marrin moving from one elementary school to another, and Alexander replacing Marrin at the elementary school he would be leaving, was indicated. Root and Clark-Snead both say that they thought Alexander would be a good fit at the elementary school and deny that the transfer was related to Alexander's complaints about Powell. By letters dated April 7, 2009, the District notified the three teachers of the impending transfers. Ex. BB. Alexander complained, and the District rescinded the transfers in June 2009. Ex. DD. Alexander had served a Notice of Claim on the District in May 2009. Alexander says that her transfer was rescinded after the EEOC investigated and decided to sue for retaliation. She also notes that transfer should be made utilizing non-tenured personnel first, and that when she asked Root why she was being transferred, he told her it was because of "personnel issues." DE[56-15], Pl. 56.1 Stmt., ¶162. In any event, Alexander never worked a day outside the middle school, and did not lose any seniority, salary, or benefits due to the planned transfer. Spencer sat in on the meeting at which Root advised Alexander of her transfer, but played no role in the transfer decision. In the Complaint and at her deposition, Alexander stated that the assignment to an elementary school was "less desirable." Alexander Dep., Ex. D, 147:22-148:13.
Alexander testified that the transfer was part of a plot by defendant Clark-Snead to set her up for failure. She also testified that Clark-Snead explained her transfer by saying that Alexander was one of the best teachers the school had, and that if she taught the younger children, they would not need AIS services by the time they got to middle school. Alexander received a satisfactory evaluation from then acting-principal Dennis Hinson and Christie Thiel in June 2009.
Alexander contends that defendant Spencer told a group of high school girls in June 2009 that Alexander was transferred because she lied abut Powell. Alexander says she and Maldonado heard this from a parent. At her deposition, Spencer denied making such a comment. During the course of the 2009-10 school year, Spencer sent memos to Alexander which she did not consider harassing, but that Alexander "took issue with." Alexander Dep., Ex. D, 190.
During the 2009-10 school year, a situation arose involving a student identified as R.S. At her deposition, Alexander testified that she had given R.S. an assignment that he had not handed in, so she gave him a zero on it. She reports that the child's parent spoke with Alexander at open school night, and was very frustrated with her child and very upset, and that Alexander did not want to speak with her when she was in that frame of mind. Alexander and the parent met with Spencer on December 11, 2009 and a plan was devised to monitor what R.S. handed in to Alexander. On December 17, Spencer sent a memo to Alexander regarding the meeting, noting that the parent had complained that Alexander had not previously advised her about the missed homework and poor grades. Ex. EE. The memo also indicated that Alexander had said that it was "impossible to maintain paperwork." Alexander denies this and refers to a letter she wrote to Spencer, but she does not cite to any exhibit or any testimony to support her denial. Alexander says that Spencer mischaracterized the meeting and the memo caused Alexander to have heart palpitations for which she went to the nurse's office. Alexander received a satisfactory summative evaluation at the end of the school year, and the R.S. incident was not mentioned in it. Alexander says that is because she had filed the lawsuit.
Another incident occurred in the 2009-10 school year, involving a student called A.M., whose parent complained to Spencer that Alexander had intimidated A.M. in the classroom. Spencer, Alexander and A.M.'s parent met on December 9, 2009. In a memo issued by Spencer on December 14, 2009, Spencer recounted the parent's complaint that A.M. was fearful of answering questions in the classroom because when they answered incorrectly, they were ridiculed by other students and Alexander did not admonish those students. Ex. GG. Alexander "took issue" with Spencer's characterization of the incident and the meeting. On February 11, 2010, Alexander filed her Complaint in this action.
On March 23, 2010, Alexander wore jeans to works and was told by Principal Hinton to go home and change. Alexander told Hinton that she could not get into her house because the garage door was broken so she was allowed to remain at school. Alexander maintained at her deposition that many other teachers wore jeans and were not humiliated as she was. That same day, Spencer issued a memo to Alexander reminding her of proper procedures for sending students out of the classroom. Ex. HH. Alexander wrote on the memo that she was upset at the time from the jeans incident.
Alexander asserts a few other incidents that occurred after she filed her Notice of Claim and the complaint in this lawsuit. Alexander alleges that her students were improperly excluded from participation in a spelling bee. On May 21, 2010, Alexander wrote to Thiel asking why she had not been informed about the spelling bee. Ex. II. Thiel responded by email on May 24, 2010 that the spelling bee coordinator had distributed the list of spelling words to the ELA teachers and that he had not given a list to Alexander initially because he mistakenly believed that Alexander taught only AIS and not ELA classes. Id. The spelling bee coordinator put a list of the words into Alexander's mailbox.
Another complaint involves Powell's §3020-a proceeding. Root told Alexander that she would have to testify at it, but Alexander said that her attorney was away at that time. Root told her that if she did not appear, she would be subpoenaed. The District did serve a subpoena and Alexander had her own attorney present when she testified at the hearing.
Alexander contends that the District ignored previous incidents involving Powell, notably an incident in 2005 involving a District teacher named Sheila Scott-Powell*fn3 . During the 2004-05 school year, Powell had told several administrators that he was unhappy with Scott-Powell's performance as English Department chair. The president of the union, Michael Burger, knew about the problems and originally sided with Powell, as did union vice-president Christine Corbett, who thought that Scott-Powell had been shown favoritism by some administrators. In June 2005, Powell gave Scott-Powell an unsatisfactory summative evaluation, which meant that Scott-Powell would lose her position as chair. On June 28, 2005, Scott-Powell met with Clark-Snead about the evaluation. In August 2005, Scott-Powell spoke with Burger and told him that Powell had been harassing her. Burger called Root to tell him there was a problem between Powell and Scott-Powell, but did not give specifics, and Root said that Scott-Powell should call him. She did not do so.
Scott-Powell had already met with Clark-Snead and complained about her unsatisfactory evaluation and about Powell's treatment of her. According to Clark-Snead, the emphasis by Scott-Powell at the discussion was that Powell had not treated her fairly in the end of the year evaluation, but Scott-Powell had also reported that Powell had remarked that she had "junk in the trunk" and that he could make her have a baby right now. (Scott-Powell was pregnant at the time.) Clark-Snead says that she met with Powell so that he could respond to the allegations and advised him that future complaints of this nature would be a violation of policy and that he should review the District's sexual harassment policy. She says that she was unaware of prior instances in which Powell had violated District policy. See DE[55-21], Def. 56.1 Stmt., ¶¶207-263. A memo dated August 18, 2005 from Clark-Snead to Scott-Powell indicates that the allegations would be passed on to Dr. Root for a Title IX report, but Root is not cc'd on the memo and denies receipt of it. Clark-Snead says, however, that she was in frequent verbal contact with Root about the matter. An August 25, 2005 memo from Clark-Snead granted Scott- Powell an "involuntary" transfer to another school. Ex. MM. Although the transfer was termed "involuntary," the defendants say that Scott-Powell had requested a transfer, and Clark-Snead says that she granted it as "involuntary" to protect Scott-Powell's seniority in the new building. Apparently, if a teacher requests a transfer, seniority is lost, but if the transfer is involuntary, it is not. The memo stated that the District had investigated the allegations and that Scott-Powell was satisfied with the resolution. Scott-Powell signed the memo the next day, and Clark-Snead says that no one forced her to sign it.
Another incident involving Powell that Alexander says the District mishandled involved a teacher named Josephine Hall. In 2006, a student was accused of taking photographs up Ms. Hall's skirt when she stood in front of a class. Powell suspended the student for 2 days. Hall did not like the way Powell handled the situation, but made no accusations that Powell sexually harassed her. The student left the country and never returned to the District.
DISCUSSION Summary Judgment Standards:
Pursuant to Federal Rule of Civil Procedure 56(c), courts may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). At this stage, the burden of proof is on the moving party to show that there is no genuine issue of material fact. Gallo v. Prudential Residential Services, L.P., 22 F.3d 1219, 1223 (2d Cir. 1994)(citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). A genuine issue of fact exists if "a reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). In making this determination, the court must view all of the evidence "in the light most favorable" to the non-movant. Breland-Starling v. Disney Publishing Worldwide, 166 F. Supp. 2d 826, 829 (S.D.N.Y. 2001)(citing Anderson, 477 U.S.). In addition, the court must resolve all ambiguities and draw all inferences in favor of the party opposing the motion. Ackerman v. National Financial Systems, 81 F. Supp. 2d 434 (E.D.N.Y. 2000). Once the moving party has met its initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56; see Liberty Lobby, 477 U.S. at 250.
In opposing the motion, the nonmoving party may not rely upon "mere conclusory allegations, speculation, or conjecture." Ackerman, 81 F. Supp. 2d at 436 (citing Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996)). However, "if there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable." Holt v. KMI Continental Inc., 95 F.3d 123, 129 (2d Cir. 1996).
The Second Circuit has indicated that trial courts should be wary of granting summary judgment in discrimination cases since intent and state of mind are typically at issue and direct evidence of discriminatory intent is rare. Tarshis v. The Riese Organization, 195 F. Supp. 2d 518, 523-24 (S.D.N.Y. 2002); see also Holtz v. Rockefeller & Co.,Inc., 258 F.3d 62, 69 (2d Cir. 2001). Nonetheless, cases involving allegations of workplace discrimination and harassment are still subject to summary judgment, and where the ...