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Anne Serby v. New York City Department of

March 20, 2012


The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.


Plaintiff, formerly a probationary science teacher employed by the New York City Department of Education, brings this action against her former employer, the City of New York and several individual defendants alleging violations of the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. ("FMLA"), the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq. ("NYCHRL"). Presently before the Court are defendants' motion for summary judgment and plaintiff's cross-motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below, defendants' motion for summary judgment is GRANTED and plaintiff's cross-motion is DENIED.


In August of 2006, plaintiff began working for the New York City Department of Education ("DOE") as a probationary science teacher. (Defs. 56.1 St. ¶¶ 1, 3.) For the 2006 to 2007 school year ("2006-07 year"), plaintiff was assigned to MS 42, located in Queens. (Id. ¶ 4.) Plaintiff's job responsibilities at MS 42 included teaching "four grade levels and over three hundred students." (Id. ¶ 5.)

During the 2006-07 year, plaintiff received mostly negative feedback about her performance, which culminated in a year-end rating of "doubtful." (Id. ¶ 6.) Riva Madden, the principal of MS 42 ("Principal Madden") conducted plaintiff's first observation on December 11, 2006. (Id. ¶¶ 6-7.) She observed, in part: "[c]lassroom management is a major concern. Too many students are standing and socializing instead of being engaged in the lesson. . . . Your knowledge of content is good. It is the organization piece that is missing. . . . This lesson needs improvement." (Id.; Declaration of Rachael Teitel ("Teitel Dec.") (Doc. No. 34) at Ex. B.) In late January of 2007, Principal Madden again noted classroom discipline as a concern, and warned plaintiff that without improvement she would receive an unsatisfactory rating. (Defs. 56.1 St. ¶ 8; Teitel Dec. at Ex. C.) At the end of that year, Principal Madden rated plaintiff's performance "doubtful." (Defs. 56.1 St. ¶ 6.) That "doubtful" rating was subsequently upheld on appeal. (Id. ¶ 10.)

For the 2007 to 2008 school year ("2007-08 year"), plaintiff requested and was granted a transfer from MS 42 to IS 109. (Id. ¶¶ 11-12.) Defendant Miatheresa Pate-Alexander was the Interim Acting Principal of IS 109 ("Principal Pate-Alexander") and defendant Karleen Adam Comrie, the Assistant Principal for Science at IS 109 ("AP Comrie"), served as plaintiff's direct supervisor. (Id. ¶¶ 14-15.)

Plaintiff's evaluations in her second year of teaching were initially more positive than they had been in her first. AP Comrie conducted plaintiff's first informal observation at her new school on October 24, 2007, finding plaintiff's lesson "satisfactory." (Id. ¶ 16.) AP Comrie followed the informal observation about a month later with a formal observation. (Id. ¶ 17.) Consistent with the evaluations conducted by Principal Madden, AP Comrie praised plaintiff's substantive lesson, but noted a number of classroom management issues. (Id.; Teitel Dec. at Ex. F (recommending: (1) "[r]review the ritual and routines of your classroom with students so that they are aware of the manner in which they should walk into your classroom and sit;" and (2) "[a]s you walk around the class I would suggest that you stand in [a] different spot to further evaluate students' work ethics and behavior. For example: [redacted] was off task for the most part of the lesson and sitting alone in the last group").) Nevertheless, AP Comrie rated plaintiff's lesson "satisfactory" and informed plaintiff that "[a]s a new teacher to the school, you are doing very well." (Defs. 56.1 St. ¶ 17; Teitel Dec. at Ex. F.)

In early to mid-December of 2007, plaintiff discovered she had a tumor on her kidney that would require surgery to remove. (Pl. 56.1 St. ¶ 18.)*fn2 The parties disagree as to the date plaintiff informed her supervisors of her illness and concomitant need to take leave. AP Comrie testified that she was informed by email on December 23, 2007 (Comrie Tr. (Doc. No. 33-4) at 41:10-44:23; P144-145*fn3 (Doc. No. 36-2)) and that she informed Principal Pate-Alexander thereafter (Comrie Tr. at 47:25-48:5). Principal Pate-Alexander testified that she learned about plaintiff potentially taking medical leave from AP Comrie. (Pate-Alexander Tr. (Doc. No. 33-3)at 14:18-21.) Plaintiff, on the other hand, claims that she told Principal Pate-Alexander immediately after a December 18, 2007 meeting, and updated her with the surgery details on December 22, 2007. (Pl. 56.1 St. ¶ 20.) Plaintiff is less clear about when she told AP Comrie, indicating it was after December 11 or December 18, 2007. (Id. ¶ 19.)*fn4

On or about December 18, 2007, Principal Pate-Alexander held a meeting of all the teachers of IS 109. (Pl. Tr. (Doc. No. 33-2) at 134:2-10; Pl. 56.1 St. ¶¶ 1, 20, 23; Pl. Opp'n (Doc. No. 35) at 2.) At that meeting, Principal Pate-Alexander announced that teachers were not to take sick leave or to be absent after Christmas break because the school could not afford substitutes. (Id.) As plaintiff herself concedes, Principal Pate-Alexander was unaware of plaintiff's illness when she made the announcement. (Pl. Tr. at 134:2-10; Pl. 56.1 St. ¶ 20.) Nevertheless, plaintiff underwent kidney surgery on December 31, 2007 and went out on leave for approximately one month. (Defs. 56.1 St. ¶¶ 21-22.) Her leave time was charged to her Cumulated Absence Reserve "sick leave bank," allowing her to receive full salary and benefits throughout her absence. (Id. at 24-25.) Plaintiff testified that she was not prevented or prohibited from taking medical leave and AP Comrie made all of the necessary arrangements for plaintiff's leave. (Id. ¶ 23; Pl. Tr. at 58:21-59:14.)

Plaintiff returned to work on or about February 4, 2008. (Pl. 56.1 St. ¶ 1; D352-357 (Doc. No. 36-2).) Although plaintiff claims that Principal Pate-Alexander delayed her return by requiring her to submit to an examination at the DOE Medical Office, despite plaintiff providing letters from her doctors clearing her to return, (Pl. 56.1 St. ¶ 22) the record reflects that plaintiff obtained work clearance letters from her own doctors only after she had already scheduled an appointment with the DOE. (D352-357 (Doc. No. 36-2).) Those letters cleared her for return to work on Friday, February 1, 2008, the same day as her DOE medical appointment, at which the DOE also cleared her. When plaintiff informed Principal Pate-Alexander of the work clearance letters and her DOE appointment, she requested to return to work on February 4, 2008, which is the day she alleges she returned. (Pl. 56.1 St. ¶ 1; D353 (Doc. No. 36-2).)

A few months after plaintiff returned to work, she began to receive a series of negative evaluations that eventually led to her termination. On April 2, 2008, Principal Pate-Alexander conducted an informal observation and found plaintiff's teaching performance to be "sub-standard." (Defs. 56.1 St. ¶¶ 28-29.) Principal Pate-Alexander's report made note of classroom management issues. (Id.; Teitel Dec. at Ex. G (noting that "[s]tudents were off task and having several unrelated discussions with classmates," and that "[s]tudents were out of seats and leaving the class without teacher permissions").) The following week, on April 8, 2008, AP Comrie conducted a formal observation. (Defs. 56.1 St. ¶ 30.) AP Comrie rated plaintiff "unsatisfactory." (Id.) AP Comrie noted that while plaintiff had a firm grasp of the subject matter, classroom management remained a concern. (Id.; Teitel Dec. at Ex. H (noting that: (1) "[a]s you were talking to the class, several students were having conversation not pertaining to the lesson;" (2) "[a]lthough Ms. Serby was talking, the class was engaged in conversation with each other and was not focus [sic] on what Ms. Serby was teaching;" and (3) "students were still conversing, however Ms. Serby continued on with her lesson, talking over student voices").) As a result of plaintiff's poor evaluations, AP Comrie recommended inter-classroom visitations to improve discipline problems in the classroom, continued mentoring with fellow teacher Ms. Hanson and reviewing a book on classroom management. (Defs. 56.1 St. ¶ 30; Teitel Dec. at Ex. H.) AP Comrie also performed a "demo" lesson to assist plaintiff in developing improved teaching skills. (Pl. 56.1 St. ¶ 31.) The parties dispute whether AP Comrie visited plaintiff's classroom for any further observations, with AP Comrie testifying that she did and saw no improvement. (Id.; Defs. 56.1 St. ¶ 31.)

Samuel Green, a senior teacher at IS 109, and plaintiff's mentor in September and October of 2007, testified that plaintiff shared with him concerns about her struggles with classroom management. (Defs. 56.1 St. ¶ 32; Pl. 56.1 St. ¶ 32.) Specifically, he described plaintiff as expressing "concern and anxiety about [the] difficulty she was having in managing her class with regard to discipline." (Id.) Additionally, Mr. Green testified that, "[he] got the sense she was intimidated by the students. A lot of it just had to do with a very timid, soft bearing about her. . . . Unless you have an authoritative bearing, you're going to be in over your head." (Id. ¶ 35.)*fn5

Plaintiff contends that these observations occurred at a particularly difficult time of the school year. In late March, shortly before plaintiff's evaluations, the school laid off due to budgetary constraints certain teachers and all remaining teachers, including plaintiff, temporarily fielded larger classes. (Pl. 56.1 St. ¶ 27.) Plaintiff also contends that Principal Pate-Alexander conducted her informal observation of plaintiff when the New York state exams were disrupting regular routines. (Id. ¶ 29.) Nevertheless, at the conclusion of the 2007-08 year in June, Principal Pate-Alexander rated plaintiff's performance "unsatisfactory" and recommended the discontinuance of plaintiff's probationary service. *fn6 (Defs. 56.1 St. ¶¶ 36-37.)

The Chancellor's Review Committee reviewed Principal Pate-Alexander's recommendation of discontinuance on September 18, 2008. (Id. ¶ 40.) Plaintiff, who was represented by a union advisor, both testified and presented documents on her own behalf. (Id.; Teitel Dec. at Ex. K.) Two out of three members of the committee voted to overrule Principal Pate-Alexander's recommendation of discontinuance. (Defs. 56.1 St. ¶ 42; Teitel Dec. at Ex. K.) The only member of the committee to concur with Principal Pate-Alexander's recommendation, the Chair of the committee, stated:

The Probationer was providing substandard instruction as evidenced by the two (2) unsatisfactory observations. The Log of Assistance illustrated the Administration's extensive, 'good faith' attempt to provide support and professional development for the Probationer. The lack of further observations can be related to the twenty-three (23) consecutive days of absences by the Probationer. In addition, the Probationer ...

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