DECISION and ORDER
THOMAS J. McAVOY, Senior District Judge.
Plaintiff Danielle Rausa commenced the instant action against Defendants Board of Education of the North Syracuse Central School District (the "District") and Steven Wolf, asserting claims of gender-based discrimination and retaliation under Title VII, the New York State Human Rights Law ("HRL"), and the Fourteenth Amendment; a violation of her Fourteenth Amendment rights to due process of law; a violation of New York Education Law § 3020-a; and prima facie tort and the intentional infliction of emotional distress. Presently before the Court is Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56 seeking dismissal of the Amended Complaint in its entirety and Plaintiff's motion for summary judgment on her due process claim.
Plaintiff commenced working for the District in 1997. Plaintiff initially worked at Smith Road Elementary School. In April 2000, Plaintiff was granted tenure in Music Education. Starting in June 2002, Plaintiff was assigned to the Roxboro Middle School ("Roxboro") as an instrumental and vocal music teacher.
Defendant Steven Wolf became principal of Roxboro in January 2008. Before Wolf became principal, Plaintiff had never received a reprimand. On February 12, 2008, then Assistant Principal Ellen Hardy held a meeting of the music department to discuss scheduling issues. Wolf was not at the meeting. According to Hardy, Plaintiff became angry and acted inappropriately. Plaintiff, on the other hand, claims that Hardy acted inappropriately and declined to let Plaintiff leave to return to her teaching duties. In conjunction with Director of Human Resources, Annette Speach, Hardy issued Plaintiff a counseling memorandum for her behavior at the meeting.
David Morton had District-wide responsibility for the District's music and other fine arts programs. In Spring 2008, Morton recommended that Plaintiff be removed from an instrumental position to a classroom music/chorus position for the 2008-09 school year. Wolf and Speach accepted this recommendation. Plaintiff was advised of the decision in April 2008. Plaintiff claims that Wolf "massaged" the building and put Patrick Wallace in the instrumental position despite his lack of prior instrumental teaching experience in the District. Plaintiff further asserts that she was the only person who was moved out of her position.
In May 2008, Plaintiff had a conversation with music teacher Mark Bossert. The subject of this conversation apparently concerned Bossert's purported conversation with Morton concerning Plaintiff's ability to teach instrumental music. Bossert complained to the District concerning Plaintiff's behavior during the conversation. Bossert alleged that Plaintiff intimidated him and accused him of orchestrating her move to the classroom music/chorus position. Plaintiff "believe[s] that this confrontation with Mr. Bossert and the one before with Mr. Wallace, started because Mr. Wolf was the new principal and he showed favoritism toward these male staff members and was also giving them the right' to speak to [her] and treat [her] any way they wanted...." Pl. Aff. at § 15. Director of Human Resources, Annette Speach, investigated the matter. Speach issued a letter to Plaintiff advising that there would be a meeting to discuss the incident and that she had the right to union representation at the meeting. After the meeting, Speach determined to credit Bossert's version of the incident and issued Plaintiff a counseling memorandum dated June 25, 2008. Bossert was not issued a counseling memorandum.
Plaintiff took over the chorus at the start of the 2008-09 school year. At that time the configuration of the chorus was changed from a combined 6th and 7th grade chorus to a 7th grade only chorus. Plaintiff was responsible for the 7th grade students. The 6th grade students went to the other chorus teacher, Ms. Launt. In September 2008, Plaintiff and Launt met to discuss the creation of a "select chorus." According to Plaintiff, this was in furtherance of Morton's directive that they do whatever was needed to build the vocal program. An after school meeting with the students was planned in September 2008 to announce, among other things, the select chorus. Wolf canceled the meeting because of concerns he had. According to Wolf, he did not want the meeting to go forward until he was able to confer with Morton whether a select chorus would be permitted. Ultimately, Morton determined that a select chorus was educationally inappropriate for the middle school level. Thus, on September 22, 2009, Wolf advised Plaintiff and Launt that a select chorus would not be permitted. This was followed by a memorandum dated September 29, 2008.
Thereafter, it came to the District's attention that flyers advertising the select chorus had been distributed to students. The flyer stated, among other things, that "[t]his is NOT like your other chorus experiences - You'll have a great time!" Wolf believed that the flyer inappropriately suggested that the prior chorus teacher's chorus had not been fun. Wolf also believed that the distribution of the flyers was in contravention of the determination not to have a select chorus. Plaintiff admits having the flyers stacked in her classroom, but denies having distributed them. Plaintiff also claims that the disputed sentence in the flyer was not intended as a criticism of the prior chorus teacher, but to highlight the different nature of the chorus in that it would be unique and potentially include jazz or show songs. In October 2008, in consultation with Speach, Wolf issued Plaintiff a counseling memorandum. The memorandum addressed the issue concerning the chorus and several other matters. Another counseling memorandum was issued in November 2008, which basically repeated the contents of the October 2008 memorandum.
In February 2009, the teachers in the music department requested a meeting involving them, building administration, and the union. Present at the meeting were Wolf, Bossert, Wallace, Sylvia Matousek, Kristen Kopf, Sue Berti, and Stan Finkle. Meeting notes demonstrate that the subject of the meeting was to discuss concerns the music department staff had about Plaintiff.
Plaintiff also complains that Wolf prohibited her from running the soundboard during concert performances, a function she handled for seven years prior to Wolf becoming principal. Wolf mostly ignored Plaintiff's pleas to run the soundboard. In the Spring of 2010, the District hired a professional sound person to handle the sound for the school's auditorium.
Plaintiff also was the director of the drama club, a position which she held continuously from 2003 forward. As such, she was responsible for supervising the drama club students. During a drama club rehearsal, a male student engaged in sexually inappropriate behavior toward female students. The female students complained to the District. The matter was reported to the Sheriff's Department, which conducted a criminal investigation. Approximately one week after the female students complained of the inappropriate conduct, Plaintiff left the building during a drama cub rehearsal.
Speach met with Plaintiff and her union representative to discuss the abuse that occurred during the drama club rehearsal, Plaintiff's having left the building during rehearsal, and Plaintiff's failure to enter grades for the third marking period of the 2008-09 school year. Speach conferred with then Superintendent Jerome Melvin, after which it was determined that Plaintiff should be disciplined. Speach and Melvin decided to recommend to the Board of Education that charges be brought against Plaintiff pursuant to N.Y. Educ. Law § 3020-a. Prior to serving the charges, Speach offered Plaintiff a three day suspension in lieu of formal § 3020-a proceedings. Plaintiff declined the offer.
In June 2009, the District served § 3020-a charges against Plaintiff. The charges consisted of three sets of charges and sought a maximum penalty of a thirty day suspension. In June 2009, Plaintiff claimed that her grade book went missing. On June 12, 2009, Plaintiff and Wolf were scheduled to discuss Plaintiff's year-end summary ("YES") report for the 2008-09 school year. Wolf canceled the meeting and sought to reschedule it during the summer of 2009.
Plaintiff posted on her Facebook page that "[i]f there is any justice in this world... and I do believe there is - Wolfie picked the WRONG person to mess with!!!! Oh, yeah - it's ON!!!" Wolf's secretary, who was "friends" with Plaintiff on Facebook, showed the posting to Wolf. Plaintiff believes that Wolf compelled his secretary to show him the Facebook posting.
In September 2009, Plaintiff served a thirty day unpaid suspension pursuant to the § 3020-a charges levied against her. She returned to work in October 20, 2009. While Plaintiff was serving her suspension, the District issued an amended set of charges, including a fourth charge for failure to enter grades for certain students in the second quarter of the 2008-09 school year. The new charges did not seek an increased penalty. After Plaintiff returned from her suspension, she was never again issued a counseling memo and did not receive any further discipline.
In June 2010, Plaintiff and the District entered into a settlement agreement concerning the § 3020-a matter. The settlement consisted of Plaintiff admitting to one of the charges, the charges would remain in her file, and the penalty would be reduced to a five day suspension. Plaintiff was reimbursed for twenty-five days of work.
In January 2010, Plaintiff was asked to attend a meeting concerning an incident where she was accused of having hung up on Wolf's secretary. No further action was taken concerning this incident.
In the 2010-11 school year, Wallace's teaching schedule was changed to accommodate his administrative internship, which Plaintiff claims shows favoritism towards male employees.
As a result of the foregoing, Plaintiff commenced the instant action claiming that Defendants: (1) engaged in discrimination in violation of Title VII; (2) permitted a hostile work environment in violation of Title VII; (3) treated Plaintiff disparately from similarly situated male employees in violation of Title VII; (4) retaliated against Plaintiff for engaging in protected activity; (5) discriminated against Plaintiff in violation of 42 U.S.C. § 1983; (6) violated Plaintiff's rights as guaranteed by the Equal Protection Clause of the Fourteenth Amendment; (7) deprived Plaintiff of her rights without due process of law, in violation of the Fifth and Fourteenth Amendments; (8) discriminated against Plaintiff in violation of the New York Human Rights Law; (9) retaliated against Plaintiff in violation of the New York Human Rights Law; (10) Defendant Wolf aided and abetted violations of the Human Rights Law; (11) violated New York State Education ...