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Sonia Fordham and John Fordham v. Islip Union Free School District and Diane Druckman

August 8, 2012


The opinion of the court was delivered by: Hurley, Senior District Judge:


This action was commenced under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 290 et seq., and other state laws against plaintiff's former employer, the Islip Union Free School District (the "District"), and her supervisor, Diane Druckman ("Druckman"). In its September 11, 2009 Memorandum and Order, the Court granted defendants' motion to dismiss a number of claims pursuant to Fed. R. Civ. P. 12(b)(6), but allowed the action to proceed as to the ADEA and NYSHRL claims for retaliation against the District, the NYSHRL claim for retaliation against Druckman, and the state law claim for defamation. Fordham v. Islip Union Free School District, 662 F. Supp. 2d 261 (E.D.N.Y. 2009). Presently before the Court is defendants' motion for summary judgment under Fed. R. Civ. P. 56 as to all remaining claims. For the reasons that follow, defendants' motion is granted as to the ADEA and NYSHRL claims, and the Court declines to exercise jurisdiction over the defamation claim.


Plaintiff's retaliation claims arise from two incidents that occurred during her tenure as a first grade teacher at the Wing Elementary School in Islip, New York: (1) Druckman's alleged filing of a "child abuse report" against plaintiff, and (2) the District's denial of plaintiff's application for catastrophic medical leave. (Defendants' Statement Pursuant to Local Civil Rule 56.1 ("Defs.' 56.1") ¶ 3.) Plaintiff alleges that these acts were carried out in retaliation for her submission to the District, through counsel, of two letters dated July 31 and August 10, 2007 (hereinafter "discrimination letters"). These letters claimed that plaintiff had been subjected to age discrimination and harassment by Druckman. (Id. ¶¶ 3, 26.)

During the first charged retaliatory incident, which occurred on September 27, 2007, Druckman, in her capacity as school principal, conducted an informal "walk-through" observation of various classrooms. (Id. ¶ 36.) During this "walk-through," which was conducted pursuant to a District-wide initiative (Druckman Dep. at 23), Druckman peered into plaintiff's classroom and saw her "approach C.A., a first grader in Plaintiff's class, take a water bottle from the child's hand, cap it, and tap the child on the head." (Defs.' 56.1 ¶ 38.) Plaintiff does not deny Druckman's recitation of the incident, except to suggest that it was more of a "pat" or "touch" on the child's head, rather than a "tap." (Plaintiff's Combined Response to Defendants' Statement of Facts Pursuant to Rule 56.1 ("Pl.'s 56.1") Resp. ¶ 40.) Plaintiff testified that she made contact with the child's head because the child "was not attending to what she needed to do," and "so she could refocus." (Defs.' 56.1 ¶ 42.)

In the weeks prior to this incident, the District undertook an investigation, headed by Ann Scricca, Esq. ("Scricca"), counsel to the District, to examine the issues raised in plaintiff's discrimination letters. While there is some dispute over the exact words used, Superintendent Alan Van Cott ("Van Cott") instructed Druckman to limit, in some manner, her contact with plaintiff during this investigation. (Defs.' 56.1 ¶ 35; Pl.'s 56.1 Resp. ¶ 35.) Purportedly in accordance with this directive, Druckman did not confront plaintiff directly regarding the classroom incident, but instead informed Linda Lippman ("Lippman"), the District's Assistant Superintendent for Human Resources, of the incident. (Defs.' 56.1 ¶ 47.) Druckman told Lippman that she did not think the child was in any danger, or that the incident constituted child abuse, but nevertheless felt that "tapping" a child on the head to restore her focus may not have been the best way to handle the situation. (Id. ¶¶ 44-45.) Lippman concluded that the administrators "had to meet with the child and parent to determine if the child felt uncomfortable or if, in fact, it was an unwelcomed tap." (Lippman Dep. at 82-83.) Lippman relayed the incident to Van Cott, who shared Lippman's view that the matter should be investigated. (Defs.' 56.1 ¶¶49-50.) Both administrators passed the information to Scricca, who interpreted the incident as triggering the mandatory reporting requirements of Article 23-B of New York's Education Law, "Child Abuse in an Educational Setting." (Id. ¶ 51.) Lippman then directed Druckman to speak directly with Scricca regarding the incident. Scricca recommended that Druckman complete the Law's mandatory reporting form, but Druckman refused, believing that the incident was not serious enough to implement such measures. (Id. ¶ 56.) Lippman and one other District administrator, Ellen Semel, ("Semel") the Director of Curriculum, similarly felt that although the incident warranted investigation by the District, it did not trigger any mandatory reporting requirements. (Id. ¶ 57.) Lippman and Scricca instructed Druckman to memorialize her observations of the event in writing, which was seen by Druckman and Lippman only. (Id. ¶¶ 60, 62.) This report was not placed in plaintiff's personnel file. (Id. ¶ 68.)

As part of the District's internal investigation into the matter, Lippman met with the child and her mother on September 28, 2007, the day following the incident, before the start of the school day. (Id. ¶ 64.) The child confirmed that plaintiff's hand had made contact with the child's head, which she described as making her feel "like a hug from Mommy." (Id. ¶¶ 64-65.) The child's response reaffirmed the District administrators' view that the incident did not trigger mandatory reporting. However, Lippman and Semel followed up on the matter by discussing the incident directly with plaintiff. At that meeting, which plaintiff attended with a union representative, the two administrators discussed the event as it was relayed to them by Druckman, informed plaintiff of the meeting with the child, and communicated to plaintiff that tapping a student on the head was not the most appropriate or effective means of refocusing a student's attention. (Id. ¶ 67.) Plaintiff expressed her opinion that the incident in question did not warrant an investigation. Plaintiff faced no disciplinary action from the incident, and no indication that the event ever transpired was placed in her personnel record. (Id. ¶ 68.) During this meeting, plaintiff became ill and appeared to start hyperventilating. (Lippman Dep. at 83.)

She was taken to the hospital by ambulance and later administered psychiatric care. (P.'s 56.1 Resp. ¶ 69.) Her personal physician advised that she not return to work for the time being. (Id.)

The second incident of alleged retaliation arises from plaintiff's application to the District for catastrophic medical leave. Under the collective bargaining agreement ("CBA" or "contract") with the District, teachers who suffer from an incapacitating illness or injury may take up to 150 paid leave days, on top of any accrued sick days. (Defs.' 56.1¶ 71.) To qualify for such leave, the claimant must be suffering from an injury or illness which "by a group of three (3) physicians' recommendations (including the school doctor, attending doctor, plus one other to be selected at Board expense) makes it impossible for the person afflicted to continue working." (Id. ¶ 72.) Plaintiff submitted her application for catastrophic medical leave on November 19 or 20, 2007, (Def.s' 56.1 ¶ 69; P.'s 56.1 Resp. ¶ 69), citing a diagnosis by her psychiatrist, Margery N. Satish, of major depression and anxiety, which plaintiff claims began the date that she met with Lippman and learned of the allegations against her. (P.'s 56.1Resp. ¶ 77.)

Francis Mazura ("Mazura"), who began as the District's Interim Assistant Superintendent in October 2007, responded to plaintiff's application by informing her that approval was subject to the medical opinions of three recommending doctors, as set forth in the CBA. (Defs.' 56.1¶ 79.) The letter further informed plaintiff that the District had selected the third doctor under that contract provision: a psychiatrist named Dr. Sameh Wahba. (Id. ¶ 84.) The other examining doctor pursuant to the contract, besides plaintiff's own physician, was Dr. Anthony Donatelli, the District's school physician. (Id. ¶ 82.) Drs. Wahba and Donatelli both determined that plaintiff was able to return to work. (Id. ¶¶ 83, 85.) The diagnosis of plaintiff's psychiatrist, Dr. Satish, which was produced in plaintiff's initial application for leave, determined that plaintiff was not suitable to return to work for the next six months. (Id. ¶ 78.)

Mazura forwarded the three doctors' recommendations to Superintendent Van Cott for his review and recommendation to the District Board for a final decision. Because plaintiff's application did not include three doctors' recommendations in her favor, as required under the CBA, he recommended that the District Board deny her request for catastrophic leave. (Id. ¶ 87.) The Board later denied the application.

Plaintiff nevertheless contends that the District's processing of her application departed from its usual practice. Specifically, plaintiff cites testimony from Lippman that, notwithstanding the language of the CBA, the District did not previously require the opinions of three doctors prior to approval. Rather, the single opinion of the teacher's treating physician was sufficient to grant leave -- a benefit that was "routinely granted." (Id. ¶ 79.) The practice of following the letter of the CBA and requiring the recommendations of three physicians purportedly began only after Mazura began his work with the District in October 2007.

Following the denial of plaintiff's appeal of the decision, the District met with plaintiff on several occasions to determine the date in which she would return to work. Ultimately, she was assigned a class for the 2008/2009 school year. (Id. ¶¶ 91.) Prior to her return, plaintiff met with Mazura and demanded a guarantee from him that she would not be harassed or discriminated against by anyone at the school. (Id. ¶ 91; P.'s 56.1 Resp. ¶¶ 91, 92.) Mazura responded that there was no way for him to offer such guarantees. (Defs.' 56.1 ¶ 91.) Mazura did, however, offer plaintiff a one-year leave of absence, which plaintiff initially accepted but later declined, opting instead to retire as of August 2008. (Id. ¶ 92.)



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