United States District Court, S.D. New York
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For Lynnea Wesley-Dickson, Plaintiff: Frederick Kevin Brewington, LEAD ATTORNEY, Valerie Cartright, Law Offices of Frederick K. Brewington, Hempstead, NY.
For Warwick Valley Central School District, Chris Fox, in her individual, Marijane Reinhard, in her individual, Kathy Carmody, in her individual, Defendants: Patrick Joseph Fitzgerald, LEAD ATTORNEY, Scott Patrick Quesnel, Girvin & Ferlazzo, P.C., Albany, NY.
For Chris Fox, in his official capacity, Marijane Reinhard, in her official capacity, Kathy Carmody, in her official capacity, Defendants: Patrick Joseph Fitzgerald, Scott Patrick Quesnel, Girvin & Ferlazzo, P.C., Albany, NY.
OPINION AND ORDER
John G. Koeltl, United States District Judge.
The plaintiff, Lynnea Wesley-Dickson, brings this action against Warwick Valley Central School District (the " School District" ), Christine Fox, Marijane Reinhard, and Kathy Carmody (collectively, the " defendants" ). Defendants Fox, Reinhard, and Carmody are allegedly sued in their individual and official capacities. The plaintiff, an African-American woman diagnosed with cancer, was an employee of the School District, and alleges that she was discriminated against on the basis of her race and disability.
The plaintiff brings claims against the defendants, pursuant to Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981 (" Section 1981" ); 42 U.S.C. § 1983 (" Section 1983" ); the Americans with Disabilities Act of 1990 (" ADA" ), 42 U.S.C. § 12101 et seq.; and the New York State Human Rights Law (" NYSHRL" ), N.Y. Exec. Law § 296 et seq. The defendants now move for summary judgment dismissing all of these claims, pursuant to Rule 56 of the Federal Rules of Civil Procedure.
The standard for granting summary judgment is well established. " The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). " [T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of " informing the district court of the basis for its motion" and identifying the matter that " it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and " [o]nly
disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); See also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and " may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible . . . ." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993).
The following facts are undisputed for the purposes of this motion, unless otherwise indicated.
The School District is a public K-12 school district. (56.1 Stmts. ¶ 1.) The plaintiff was hired by the School District in the summer of 2005 to fill a three-year probationary position as Supervisor of Special Education. (56.1 Stmts. ¶ 2.) As Supervisor of Special Education, the plaintiff was responsible for overseeing the provision of services to the School District's special education students. (56.1 Stmts. ¶ 3.)
The plaintiff's supervisor during her first year of probationary employment was Tammy Cosgrove, Director of Pupil Personnel Services (the " Director" ) for the School District. (56.1 Stmts. ¶ 6.) The Director is required, among other things, to review annually the performance of the Supervisor of Special Education. (56.1 Stmts. ¶ 7.) For probationary employees, the Director's evaluation is used by the Superintendent of Schools in determining whether to recommend to the School District's Board of Education (the " Board" ) that the employee be awarded tenure at the end of the probationary term. (56.1 Stmts. ¶ 8.)
During the plaintiff's first year of probationary employment with the School District, Ms. Cosgrove counseled the plaintiff, both orally and in writing, about aspects of the plaintiff's performance that needed improvement. (56.1 Stmts. ¶ 9.) On March 1, 2006, Ms. Cosgrove issued the plaintiff a written letter, in which Ms. Cosgrove identified " ongoing proofing and editing concerns" associated with the plaintiff's work product. (56.1 Stmts. ¶ 10.)
At the end of the 2005-2006 school year, Ms. Cosgrove completed a performance evaluation for the plaintiff. (56.1 Stmts. ¶ 11.) The evaluation was generally positive, commending the plaintiff for her strong interpersonal skills and personal qualities, and stating that the plaintiff had " excellent potential to be successful" in her position. (Bryant Aff. Ex. D.) However, the evaluation also highlighted some serious reservations that Ms. Cosgrove had. (Bryant Aff. Ex. D.)
Ms. Cosgrove noted that the plaintiff needed to improve in scheduling and holding meetings within mandated timelines. (56.1 Stmts. ¶ 12.) According to Ms. Cosgrove, " [d]espite reminders and prompts from [Ms. Cosgrove], . . . secretaries as well as the teachers themselves, Ms. Wesley-Dickson was, in almost every case, unable to return observations within the 10-day time frame specified in the teachers' contract. Teacher reactions to this situation ranged from sympathetic understanding to anxious discomfort to outright annoyance." (56.1 Stmts. ¶ 13.)
Ms. Cosgrove also noted that the plaintiff's support staff was " stepping in" to complete tasks that fell under the plaintiff's job description " in order to prevent parent outrage and service provider ire." (56.1 Stmts. ¶ 14.) Ms. Cosgrove went on to note that:
By far the area in which the most concern exists for Ms. Wesley-Dickson's future success as an administrator lies in her writing skills. The Supervisor of Special Education position demands significant written output in many areas . . . . Basic writing skills such as organization, grammar and punctuation are lacking in Ms. Wesley-Dickson's final products. Proofing and editing skills appear limited, as does the ability to incorporate specific suggestions for addressing problem areas in writing samples . . . . All of these factors combine to cause grave concern with Ms. Wesley-Dickson's ability to adequately perform a major component of her job.
(Bryant Aff. Ex. D; 56.1 Stmts. ¶ 15.)
According to Ms. Cosgrove, " [t]he concerns with Ms. Wesley-Dickson's timeliness and writing skills are significant as they pose a real impediment to producing 'legally defensible documents'--the gold standard in the field of special education." (Bryant Aff. Ex. D; 56.1 Stmts. ¶ 16.) Ms. Cosgrove cautioned, " [s]hould gains in [the areas of timeliness and quality of written products] not be demonstrated, serious consideration should be given to the appropriateness of continuing on in such a writing-intensive position." (Bryant Aff. Ex. D; 56.1 Stmts. ¶ 17.)
In June 2006, Ms. Cosgrove left the Director position, and Kathleen Carmody was asked to serve as the Director on an interim basis. (56.1 Stmts. ¶ 25.) Ms. Carmody served as the Director until approximately September 2006, when the School District permanently appointed Elizabeth Kirnie as the Director. (56.1 Stmts. ¶ 27.) After Ms. Kirnie resigned in December 2006, Ms. Carmody became the acting Director for the rest of the 2006-2007 school year. (56.1 Stmts. ¶ ¶ 28-30.)
The plaintiff alleges that, in around December 2006, when she told Ms. Carmody that she needed to take absences for chemotherapy, Ms. Carmody stated that she had a colleague on chemotherapy who came to work very unkempt at times and was unable to remember anything. (Wesley-Dickson Dep. at 86-90.) Ms. Carmody denies making any such statement to the plaintiff. (Carmody Aff. ¶ 8.)
On or about May 10, 2007, the plaintiff attended a meeting with the Superintendent of Schools at that time, Dr. Frank Greenhall. (56.1 Stmts. ¶ 32.) Superintendent Greenhall informed the plaintiff about the possibility that he would not recommend her for tenure. (56.1 Stmts. ¶ 33.)
At some point in 2007, the plaintiff contacted her union representative, Ms. Mary Jane Hamburger, after receiving some negative memoranda about her work. (Hamburger Dep. at 15.) The plaintiff alleges that Ms. Hamburger advised Superintendent Greenhall that the School District failed to follow its own policies with respect to the plaintiff, because the
plaintiff had not received enough evaluations as guaranteed by her contract. (Hamburger Dep. at 16.) The plaintiff alleges that Superintendent Greenhall told Ms. Hamburger in response that he was " not afraid to fire black people" and that he had already fired the School District's first black math teacher. (2d Am. Compl. ¶ 100.) However, the plaintiff admits that she did not personally hear Superintendent Greenhall make these comments, and there is no admissible evidence of these comments. (56.1 Stmts. ¶ ¶ 81-82.) Ms. Hamburger has no recollection of these comments, (Hamburger Dep. at 79-80), and Dr. Greenhall is now deceased, (Quesnel Oct. 26, 2012 Aff. (" Quesnel Aff." ) ¶ 13).
On or about June 28, 2007, Superintendent Greenhall asked Ms. Carmody to create a professional evaluation for the plaintiff. (56.1 Stmts. ¶ 34.) While supervising the plaintiff during the 2006-2007 school year, Ms. Carmody shared many of the same concerns that Ms. Cosgrove had with respect to the plaintiff's ability to perform competently the essential functions of her position. In her evaluation, Ms. Carmody stated:
As the Interim Director of Pupil Personnel Services from December 2006 through June 2007, I have had ample opportunity to observe, work with and supervise Lynnea Wesley-Dickson in her position as Supervisor of Special Education. During this time Lynnea has demonstrated effectiveness in working with parents in person, face-to-face, and has proven adept at making them feel at ease during committee meetings. However, because of her poor organizational skills and failure to devote the extra time needed to insure the quality of her work, Lynnea's job performance fails to meet the high standards demanded by her position and which I sincerely believe she is capable of achieving. As a result, the timeliness and propriety of program assignments for some of our preschool students have suffered, angering parents and reflecting poorly on this office and Warwick Valley Central School District.
During this year's CSE/CPSE/Annual Reviews, Lynnea has sometimes appeared overwhelmed by the enormity of the tasks confronting her. I have often witnessed Lynnea's late filing of reports, inadequate background knowledge of available programs, insufficient preparation for Committee meetings, lack of attention to detail, late processing of STAC forms, failure to finalize IEPs in time for board approval and timely distribution to preschool programs (thereby forcing some students to start programs late), failure to return parents' repeated phone calls, and refusal to take responsibility for some problems largely of her own making. Preschools have been calling to inform us that IEPs are incomplete and/or incorrect. I have counseled Lynnea on numerous occasions regarding these shortcomings, but improvements in these areas have been marginal at best. Relatively simple advice like returning phone calls promptly has been largely ignored, although I suspect it is the lack of preparation for the ensuing conversation rather than a callous lack of respect for these parents that is behind her inaction. Regardless, this unresponsiveness, like the prevalence of the shortcomings detailed above, is unacceptable and should be addressed.
(Carmody Aff. Ex. A.)
During the late summer of 2007, Christine Fox was appointed Director and became the plaintiff's supervisor. (Fox Aff. ¶ 3.) From August 2007 through January 2008, Ms. Fox wrote six memoranda and letters of counsel to the plaintiff concerning various performance deficiencies of the
plaintiff, and the plaintiff wrote responses to almost all of them. (Fox Aff. ¶ ¶ 4-10.)
Dr. Marijane Reinhard is the current Assistant Superintendent of Curriculum and Instruction Services for the School District, and has held this position since August 1999. (Reinhard Aff. ¶ 1.) The plaintiff alleges that on or about September 17, 2007, Dr. Reinhard told the plaintiff--an African-American woman wearing a head scarf at the time--that the plaintiff sounded " just like Aunt Jemima" when the plaintiff called her " Ms. Marijane." (2d Am. Compl. ¶ 36.) Dr. Reinhard admits telling the plaintiff that she " sound[ed] like Aunt Jemima," but claims the comment was made in response to the plaintiff's calling her " Ms. Marijane" in a southern accent. (Reinhard Aff. ¶ 4.) Dr. Reinhard claims that she was simply joking with the plaintiff, and that at the time she made the comment she did not understand that it would be offensive. (Reinhard Aff. ¶ 4.)
The plaintiff also alleges that approximately one week thereafter, Dr. Reinhard told the plaintiff that the plaintiff " sounds like [she] was down on the plantation." (2d Am. Compl. ¶ 36.) Dr. Reinhard denies making such a comment or any comment similar to that. (Reinhard Aff. ¶ 4.) Dr. Reinhard also states that she was not the plaintiff's supervisor, did not review the plaintiff's performance, and had no input into any performance evaluations of the plaintiff. (Reinhard Aff. ¶ 3.)
Ms. Fox completed a performance evaluation for the plaintiff dated February 25, 2008. (Fox Aff. Ex. K.) In her evaluation, Ms. Fox identified concerns associated with the plaintiff's ability to perform her job competently. (Fox Aff. Ex. K.) The evaluation concluded:
I have serious concerns over whether Ms. Wesley-Dickson is capable of the demands of this position . . . . I do not find Ms. Wesley-Dickson to possess any of the expected administrative skills at a level of satisfaction. Suggestions were made to attend workshops to improve some of these skills, however even after attending a few workshops and another year and a half of experience, Ms. Wesley-Dickson falls short of the expectations that the Warwick Valley Central School District and I have of its administrators.
(Fox Aff. Ex. K.)
In March 2008, Superintendent Greenhall informed the plaintiff that he would not recommend to the Board that the plaintiff be awarded tenure. However, Superintendent Greenhall offered the plaintiff an additional year of probationary employment. (2d Am. Compl. ¶ ¶ 65, 68.) The plaintiff alleges that Superintendent Greenhall initially said to the plaintiff that this potential arrangement had nothing to do with her health, but that later in the conversation he inquired into her health and a couple days later asked her how her chemotherapy treatments were going. (Wesley-Dickson Dep. at 101.) The plaintiff accepted the additional year of probationary employment and did not file a grievance with her union. (Bryant Aff. ¶ 6; Wesley-Dickson Dep. at 97-98.)
Thereafter, the plaintiff's superiors continued to receive complaints about the plaintiff and noted deficiencies in her performance. On April 16, 2008, Ms. Fox issued a letter of counsel to the plaintiff after it was reported to Ms. Fox that the plaintiff was late to a meeting which the plaintiff was supposed to chair, and the plaintiff responded without denying her lateness. (Fox Aff. ¶ 13, Exs. L, M.) On May 13, 2008, Ms. Fox received a memorandum from one of the support staff complaining about the plaintiff's abusive conduct. (Fox Aff. ¶ 14.) On May 19, 2008, Ms. Fox issued a memorandum to the plaintiff, which identified specific directives
the plaintiff was required to abide by going forward, and the plaintiff responded. (Fox Aff. ¶ 15.) On May 22, 2008, Superintendent Greenhall issued the plaintiff a letter of counsel concerning reports that the plaintiff had been late to meetings. (Bryant Aff. ¶ 13, Ex. G.)
On May 29, 2008, the School District received by mail a copy of a complaint the plaintiff had filed with the Orange County Human Rights Commission (the " Commission" ) on May 21, 2008, which was forwarded by the Commission to the New York State Division of Human Rights (" NYSDHR" ) and received by the NYSDHR on May 27, 2008. (Quesnel Aff. ¶ ¶ 3-4, Exs. A, B.) The complaint contained allegations of racial discrimination and disability discrimination. (Quesnel Aff. Ex. B.)
On June 19, 2008, Ms. Fox issued the plaintiff a letter of counsel concerning the plaintiff's abusive treatment towards the support staff. (Fox Aff. ¶ 16.) On August 8, 2008, Ms. Fox prepared an evaluation of the plaintiff for the 2007-2008 school year. (Fox Aff. ¶ 17, Ex. R.) The evaluation noted that " there are still considerable concerns that continue, specifically the ability to follow-through on cases and paying attention to the details that come with each case." (Fox Aff. Ex. R.) The evaluation concluded:
Across the broad spectrum of responsibilities as an administrator Ms. Wesley-Dickson is not currently exhibiting the necessary skills in the areas of attention to detail and follow through that is expected by the Warwick Valley Central School District. As an administrator it is imperative that a thread between cases continues through time and can not be looked upon as specific one-time tasks . . . . All of these steps [in a thread] require constant attention and follow through in a timely manner. This is not occurring even after numerous reminders to Ms. Wesley-Dickson over the past three years. Closer attention to details and follow through is a crucial job ...