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Greene v. Brentwood Union Free Sch. Dist.

United States District Court, E.D. New York

April 9, 2013

BETTY F. BROWN GREENE, Plaintiff,
v.
BRENTWOOD UNION FREE SCHOOL DISTRICT, et al., Defendants

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For Betty F. Brown Greene, Plaintiff: Harriet A. Gilliam, LEAD ATTORNEY, Law Office of Harriet A. Gilliam, Riverhead, NY.

For Brentwood Union Free School District, Board of Education, Brentwood Union Free School, George Talley, Individually and as President Board of Education, Brentwood UFSD, Lorraine Pace, Individually and as Trustee, Board of Education, Brentwood UFSD, Stephen Coleman, Individually and as Trustee Board of Education, Brentwood UFSD, Roland Jimenez, Individually and as Trustee, Board of Education, Brentwood UFSD, Donna Jones, Individually and in her capacity as Superintendent of Schools Brentwood Union Free School District, Dr. Joan Lange, Individually and in her capacity as Assistant Superintendent of Schools, Brentwood Union Free School District, Defendants: Lewis R. Silverman, LEAD ATTORNEY, Caroline Beth Lineen, Rutherford & Christie, LLP, New York, NY.

OPINION

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REPORT AND RECOMMENDATION

Arlene R. Lindsay, United States Magistrate Judge.

The plaintiff, Betty F. Brown Greene (" Greene" ), commenced this action against the defendants, the Brentwood Union Free School District (the " District" ), the Board of Education of the Brentwood Union Free School District (the " Board" ), Board members George Talley (" Talley" ), Lorraine Pace (" Pace" ), Stephen Coleman (" Coleman" ), and Ronald Jimenez (" Jimenez" ), Superintendent Donna Jones (" Jones" ) and Assistant Superintendent Joan Lange (" Lange" ), alleging that they discriminated against her on the basis of her race, gender and religion and retaliated against her for opposing the discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq., 42. U.S.C. § 1981, and the Equal Protection Clause as made actionable by 42 U.S.C. § 1983.[1] Before the court, on referral from District Judge Feuerstein, is the defendants'

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motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth herein, the undersigned recommends that the defendants' motion for summary judgment be granted.

BACKGROUND

The following facts, drawn from the Complaint and the parties' Local Civil Rule 56.1 Statements, are construed in the light most favorable to the non-moving party, except as otherwise noted.[2] See Capobianco v. City of New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005).

A. Greene's Employment History

The plaintiff is an African-American woman who was hired by the District as a high school home economics teacher in 1978. Defs. 56.1 Statement at ¶ 1. The defendant Talley is a Caucasian man who became a member of the Board in 2003 and was President of the Board from 2008-2009. Id . at ¶ ¶ 4, 5. Pace is a Caucasian women who became a member of the Board in 2007 and was Vice-President of the Board from 2008-2009. Id . at ¶ ¶ 6, 7. Coleman is a Caucasian man who was a member of the Board from 1991 to 2012. Id . at ¶ 8. Jimenez is a Hispanic man who served as a member of the Board from July 2008 to June 2011. Id . at ¶ 9. Superintendent Jones is African-American woman. Id . at ¶ 2. She served as Superintendent of the District from 2007 to June 2010. Id . Assistant Superintendent Lange is a Caucasian woman. Id . at ¶ 3. She was the Assistant Superintendent for Secondary Education from June 2007 to August 2011. Id .

In 1998, Greene was promoted to the position of Teacher on Special Assignment/Dean of Students. Id . at ¶ 11. In 2006, she was promoted to the position of Assistant Principal for the Evening High School/Adult Education Program (" EHS" ). Id . at ¶ 12. The Assistant Principal position had a probationary term from August 11, 2006 to August 10, 2009. Id . at ¶ 13. She maintained her position until July 1, 2009. See Complaint at ¶ 19.

Greene was appointed to the Assistant Principal position by interim Superintendent of Schools Michael Cohen. See Silverman Decl. at Ex. D at 18:5. Although Greene alleges in her complaint that she was the first African-American in twenty-five years to hold an assistant principal position at the high school level, see Complaint at ¶ 22, Greene does not deny that from 2004 to 2011, the District hired nineteen other minority individuals as principals and assistant principals. Defs. 56.1 Statement at ¶ 93. Of these nineteen individuals, ten individuals are African-American. Id . at ¶ 94. From 2008 to 2011, the District also appears to have employed twenty-three females as principals or assistant principals. See Silverman Decl. at Ex. OO, Resp. 2.

In her capacity as Assistant Principal for the EHS, Greene was responsible for four program areas: the Adult Education Program; the Summer School; English as a Second Language; and Records Retention. Complaint at ¶ 21. Her immediate supervisor was Denis Bracco (" Bracco" ),

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the Principal of the EHS. Id . at ¶ 24. Greene was the only administrator on duty from 3:00 p.m. to 6:00 p.m. Id . at ¶ 23.

During the course of her employment, Greene received good performance reviews, was never the subject of any formal or informal disciplinary proceeding, and was recognized for her contributions to the District, in particular to the EHS Program. Id . at ¶ ¶ 25, 26. On June 4, 2008, Greene received her last annual evaluation. Id . at ¶ 30. In the evaluation, Bracco stated, among other things:

Your knowledge, skills and experience that you attain have continued to benefit the Evening High School, Summer High School and Continuing Education Programs. You take your responsibilities very seriously and you are an effective administrator. . . .
During the past school year you continued to successfully demonstrate you leadership abilities in dealing with students and staff. . . .
You are poised and calm under pressure. . . .
You continue to follow proper procedure and protocol . . . .

Gilliam Decl. at Ex. E.[3]

On November 7, 2008, Greene was notified that she would become eligible for tenure consideration during the 2009/2010 school year. See Gilliam Decl. at H. The notice indicated that the supervisor would be meeting with her regarding a tenure evaluation and discussing her attendance during the probationary period. Id . Greene's name was then added to the Certified Personnel Appointment listing indicating that she was a tenure candidate " effective 9/1/09-6/30/10." Id . at Ex. Q.

B. The November 12, 2008 Incident

On November 12, 2008, while Greene was still a probationary employee, Alexandria Nunez (" Nunez" ), a tenth grader at Brentwood High School, stayed after school with a friend. Defs. 56.1 Statement at ¶ ¶ 14, 17. Nunez had just returned to school that day after undergoing a tonsillectomy. Id . at ¶ ¶ 15-16.[4] While she was watching her friend (" K" ) at jazz orchestra, Nunez began coughing up blood. Id . at ¶ 17. Silverman Decl. at Ex. T, p. 662. K alerted Theresa Poland, a teacher at the school, who immediately left the room to advise Greene that a student was vomiting blood. Id . at ¶ ¶ 19-20; Silverman Decl. at Ex. T, p. 714.

In the meantime, K called Nunez's mother and reported that her daughter was spitting up blood. Id . at ¶ ¶ 21-22; Silverman Decl. at Ex. T, p. 662. Mrs. Nunez told K to call an ambulance and immediately drove to school. Id . at ¶ ¶ 22-23.[5] As soon as Greene was alerted to the situation, she and Poland, joined by

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a security guard, went to the music wing to find Nunez.[6] Id . at ¶ 24, Pl. 56.1 Counter-Statement at ¶ 20. When they arrived, Nunez was no longer throwing up blood. See Silverman Decl. at Ex. T, p. 658, 662.

According to K's version of the events, when Greene arrived at the music wing, K was in the process of calling 911. See Silverman Decl. at Ex. T. Greene appeared angry. Id . When K explained she was calling an ambulance, Greene told her " no," so she hung up the phone.[7] Id . Greene told the girls to accompany her to the front office and Nunez advised Greene that her mother was on the way. Id . at ¶ ¶ 28-29. At approximately 4:44, while the girls were walking to the front office, 911 called back.[8] See also Silverman Decl. at Ex. T. K explained to the operator that her friend was throwing up blood. Id . When the operator asked K if she needed assistance, K said " I don't know." Id . K indicated during her interview that she did not know what to say to the operator because Mrs. Nunez had told her to call the ambulance but Greene had told her to hang up the phone. Id . K, nonetheless, remained on the phone and the ambulance asked for the address of the school, which she did not know. Id . K recalls that when she then asked Greene for the address, Greene rolled her eyes and said " 2 6th Avenue" and then asked her for Mrs. Nunez' telephone number. Id .

Greene's recollection concerning how she learned that an ambulance had been called is somewhat inconsistent. The day after the incident, Greene reported that K had informed her that Nunez's mother had instructed her to call an ambulance. See Silverman Decl. at Ex. T, p.658. A few days later, during her interview, Greene repeated that K had reported that she had called the police, but she also said she " had no clue if the police had been contacted." See Silverman Decl. at Ex. T.[9] In her 56.1 Counter-Statement, Greene states that the security guard advised her that the police and EMS had been called. Pl. 56-1 Counter-Statement at 28. In any case, Greene's " best recollection" is that she never told K to hang up the phone. See Silverman Decl. at Ex. T.

Mrs. Nunez arrived at school at the same time as the ambulance. Id . at ¶ 30. According to Mrs. Nunez, Greene had phoned her before her arrival to say she was not going to be able to call an ambulance because they would not take Nunez without her being present at school.[10] See Silverman Decl. at Ex. T. Mrs. Nunez also reported that when she arrived at school, K was very mad because " all Mrs. Greene cared about was [whether] there [was] going to be a lawsuit." Id . Mrs. Nunez asked the security guard " who at school

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was concerned about a lawsuit" and his answer was " it wasn't me, it was her, meaning Mrs. Greene." Id . The security guard recalls that he called Greene and asked her to come back [to where they were standing] and help and when Greene returned Mrs. Nunez yelled " I know you try to help these students a lot and I am not the type to sue however you should have called the police." Id .

As soon as Nunez was placed in the ambulance, she started throwing up blood again. Id . at ¶ 31. Nunez was admitted for a one night stay and lost two liters of blood. Id . at ¶ 33. Greene then reported the incident to Bracco. Id . at ¶ 34.[11]

C. Mrs. Nunez's Complaint and the Investigation

The day after the incident, Mrs. Nunez called the Principal of the high school to lodge a complaint. Defs. 56.1 Statement at ¶ 36. The Principal said he would get back to her but he didn't. Id . at ¶ 35. Mrs. Nunez then called Pace, who she had met when her daughter was in the competitive marching band. Id . at ¶ 36. Pace told her to call the school again and that someone would get back to her. Id . at ¶ ¶ 36-37. Pace, along with George Talley, then informed Jones about the incident and asked her to conduct an investigation. See Gilliam Decl. at Ex. MMM, 151:22. In response to their request, Jones met with Mrs. Nunez and directed Assistant Superintendent Lange to investigate the matter. Id . at ¶ ¶ 39,40.

During the investigation, Lange interviewed Greene[12] Nunez, K, Mrs. Nunez, Ms. Poland, two security guards and Nunez's doctor. Id . at ¶ 42[13] Silverman Decl. at Ex. T. Lange also reviewed written statements from Greene and Poland. Id . at ¶ ¶ 43-44. At the conclusion of the one week investigation, Lange prepared a memorandum for Jones in which she reported that she too had received a call from Mrs. Nunez " regarding the alleged mishandling of a medical emergency." See Silverman Decl. at Ex. V, 655. Lange indicated that during a series of interviews " one of which included the examination of calls made on [Nunez's] cell phone]," she confirmed the following events:

o K immediately called her [own] mother (" because she used to be a nurse" ) whose instructions were to call ...

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