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Tomici v. New York City Department of Education

United States District Court, E.D. New York

April 11, 2014


Locksley O. Wade, Law Office of Locksley O. Wade, Esq., New York, New York, for the Plaintiff.

Isaac Klepfish, Of Counsel, New York City Law Department New York, New York, for the Defendant.


JACK B. WEINSTEIN, District Judge.

I. Introduction

Loredana Tomici sues her former employer, the New York City Department of Education ("DOE"). She was discharged as a New York City probationary public school teacher while on medical leave [REDACTED/]

The Family Medical Leave Act ("FMLA") prohibits interference with, and retaliation for, taking medical leave. [REDACTED/]

Defendant moves for summary judgment and dismissal. Tomici cross-moves for summary judgment on her FMLA claim.

Failure to file a timely notice bars claims under state and city law. Evidence will not support her remaining FMLA claims.

Defendant's motion is granted. Plaintiff's motion is denied. The case is dismissed.

II. Facts

The following statement of facts draws all reasonable inferences in favor of the plaintiff. See Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010).

A. Parties

In August 2007, plaintiff began working as a probationary English language arts teacher at DOE's Ridgewood Intermediate School 93 ("I.S. 93"). Decl. of Isaac Klepfish in Supp. of Def.'s Mot. for Summ. J. ("Klepfish Decl.") Ex. G (Annual Professional Performance Review and Report, dated June 25, 2008), CM/ECF No. 27-7. Her period of probation was three years. See N.Y. Educ. L. § 2573(1). During a probationary period, a teacher lacks tenure and is essentially an at-will employee who the board of education can fire upon the recommendation of the superintendent of schools, so long as the decision is not arbitrary or capricious. See Frasier v. Bd. of Educ. of City Sch. Dist. of City of New York, 71 N.Y.2d 763, 765 (1988) (analyzing N.Y. Educ. L. § 2573(1)).

The principal of I.S. 93 was Edward Santos. Def. 56.1 ¶ 2. Also providing supervision at I.S. 93 were three assistant principals: Frederick Wright, Catherine Fratangelo, and Theresa Rosato-Lopes. Id. at ¶¶ 3-5.

B. Tomici's First Year and a Half at Ridgewood Intermediate School 93

Tomici was rated "Satisfactory" for her first year and a half as a probationary teacher. See Klepfish Decl. Ex. II (Chancellor's Committee Report, dated May 18, 2009), CM/ECF No. 27-35; Ex. G (Annual Professional Performance Review and Report, dated June 25, 2008), CM/ECF No. 27-7. During this period Rosato-Lopes observed plaintiff's teaching on at least two occasions. In October of 2007, Tomici's third month on the job, Rosato-Lopes rated Tomici's lesson as satisfactory overall and remarked in her Observation Report that "[i]t is a pleasure to work with you in your first year as a teacher." Klepfish Decl. Ex. E. (Observation Report, dated Nov. 1, 2007), CM/ECF No. 27-5. She also thanked Tomici "for the dedication you show the students of I.S. 93." Id. Rosato-Lopes's impression of Tomici did not change during the initial months of Tomici's second year on the job. An Observation Report authored by Rosato-Lopes in September 2008 thanked Tomici for "working to develop the skills and strategy to meet the needs of your [English Language Learner] students." Klepfish Decl. Ex. H (Observation Report, dated Sept. 5, 2008), CM/ECF No. 27-8.




D. QTEL Workshop

In late February 2009, Tomici attended a professional development workshop for DOE employees offered by Quality Teaching for English Learners ("QTEL"). In preparation, plaintiff's classroom instruction was observed on February 2, 2009 by Santos and Fratangelo. Klepfish Decl. Ex. J. Two days later, on February 4, 2009, Fratangelo emailed Tomici summarizing "some points that... are in need of immediate attention." Id. Tomici replied promptly, stating that she saw "some validation in your observation but... [felt] some points need to be discussed in further detail." Id.

The QTEL workshop lasted several days long. Pl. Decl. Ex. 4 ("Rosato-Lopes Dep."), CM/ECF No. 38-4, at 26; Tomici Dep. 26. [REDACTED/] [REDACTED/]

Prior to departing the workshop on February 23rd, Tomici notified two colleagues that she would not be returning following the lunch break. Tomici Dep. 26-27. She did not notify any workshop facilitators that she was leaving early; nor did she notify the assistant principals of I.S. 93 or Principal Santos. Def. 56.1 ¶¶ 22-24, 26.

Rosato-Lopes learned of plaintiff's absence through Tomici's colleagues. Rosato-Lopes Dep. 25. Rosato-Lopes then reported the incident to Santos. Def. 56.1 ¶ 27.

Tomici took a sick day on February 24th and returned to work on February 25, 2009. Tomici Dep. 27.

E. Early March Classroom Observations and Feedback

A series of observations of plaintiffs classroom and unsatisfactory ratings followed. An observation from Wright on March 3, 2009 rated plaintiff unsatisfactory. Klepfish Decl. Ex. K (Informal Observation Report, Mar. 4, 2009), CM/ECF No. 27-11. In his report, Wright noted that Tomici's lesson plan was inadequate and, in particular, failed to "incorporate the professional development you have received from the [English Language Arts] and [English as a Second Language] departments over the last two years." Id. (emphasis in original). Wright continued to observe Tomici's lessons in March and found her to be struggling with lesson plans. Wright Dep. 50.

A meeting between plaintiff, Santos, Wright and Rosato-Lopes took place on March 4, 2009. Klepfish Decl. Ex. L (Ltr. from Rosato-Lopes to Tomici, dated Mar. 5, 2009), CM/ECF No. 27-12. The next day, the school's administrators "put additional structures in place to support [Tomici's] professional growth." Id. Tomici was required to submit weekly lesson plans to Rosato-Lopes each Monday and to attend "scheduled inter-visitation periods" with assigned teacher-mentors. Id.

On March 9, 2009, Wright and Fratangelo conducted a walkthrough of Tomici's classroom. Klepfish Decl. Ex. T (Ltr. from Wright to Tomici, dated Mar. 12, 2009), CM/ECF No. 27-20. Wright then wrote a letter admonishing Tomici for failing to make lesson plans available to supervisors upon request. Id. Tomici signed the letter, acknowledging she received it, and did not object to its contents. Id. Nearly three years later, at her deposition, Tomici disputed that teachers were actually required to maintain lesson plans in paper format to be produced to supervisors upon their request. Tomici Dep. 63.

F. Discipline for Leaving QTEL Workshop

About March 9, 2009, Tomici was informed by Santos that she would be docked pay for an unauthorized absence because she left the QTEL training session on February 23, 2009 without advising her supervisors. Def. 56.1 ¶ 41; Tomici Dep. 27. At that time, it was not known to Santos that Tomici had a medical excuse for leaving the session. Pl. Decl. Ex. 2 ("Santos Dep."), CM/ECF No. 38-2, at 57.

At a meeting with Santos to discuss her purported insubordination and punishment, Tomici informed him that she "had medical documentation specifying why [she] left" [REDACTED/] Tomici Dep. 28-29. Tomici then submitted to I.S. 93's payroll secretary a note from the physician who treated her on February 23, 2009. Klepfish Decl. Ex. O (Note from Daniel Rahman), CM/ECF No. 27-15.

On March 13, 2009, after Santos was informed that a union representative must be present for a disciplinary proceeding, Santos held another meeting with Tomici so her union representative could attend. Santos Dep. 57-58. Present at the meeting were Santos, Wright, Rosato-Lopes, Tomici, and her union representative. Tomici Dep. 30-31. Having considered plaintiff's medical reason for leaving the workshop early, Santos recorded her absence as one for which she would still be paid, but counted it against sick leave. Klepfish Decl. Ex. O (Note from Daniel Rahman, dated Feb. 23, 2009), CM/ECF No. 27-15; Def. 56.1 ¶¶1154-55. He summarized his decision in a letter to Tomici that was placed in her file. Klepfish Decl. Ex. Q (Ltr. from Santos to Tomici, dated Mar. 9, 2009), CM/ECF No. 27-17. The letter noted that "in the future, you must obtain clearance from an I.S. 93 supervisor to leave an assigned training site, which is an extension of your school building." Id. Tomici signed the bottom of the letter, signifying she received a copy of it, without any objection. Id.

Plaintiff contends that Santos's decisions to hold a meeting and to write a disciplinary letter even after Tomici provided a medical excuse for her absence was motivated by a desire "to create a false record for disciplinary action against [her]." Pl.'s Resp. to Rule 56.1 Statement ¶ 46.

G. March 19, 2009 Letter

In a letter dated March 19, 2009, Rosato-Lopes notified Tomici of several deficiencies in her professional conduct, including the following:

• Tomici failed, upon Rosato-Lopes's request, to forward Rosato-Lopes "the work in progress and completed work folders" for two students transferred from plaintiff's class to another teacher's. Klepfish Decl. Ex. U (Ltr. from Rosato-Lopes to Tomici, dated Mar. 19, 2009), CM/ECF 27-22. When Rosato-Lopes attempted to retrieve the materials herself, she "observed that there is no record of work in the files of your students since September." Id. Tomici contends that she had already transferred the materials to the two students' new teacher and that Rosato-Lopes "knew about this and still wrote the [letter] anyway." Tomici Dep. 99.
• Tomici failed, upon Rosato-Lopes's request, to maintain records of the work-for example, drafts, revisions, finished work, etc.-of her students related to "the Journalistic Feature Articles that students worked on for approximately six weeks." Klepfish Decl. Ex. U (Ltr. from Rosato-Lopes to Tomici, dated Mar. 19, 2009), CM/ECF 27-22. Rosato-Lopes further noted that Tomici failed to provide feedback to her students on the "Journalistic Feature Articles" and had no explanation for this failure. Id.
• Tomici failed to turn in her "DYO scan sheets.... for any of [her] classes." Id.

Rosato-Lopes closed her letter by reminding Tomici that "failure to carry out pedagogical responsibilities can lead to disciplinary action and an unsatisfactory rating." Id. Without objection, Tomici signed the the letter on March 20, 2009, acknowledging that she understood that "a copy of this letter will be put into [her] personnel file." Id.

H. Plagiarism Incident

In late March, while reviewing student work posted on bulletin boards in the hallways of I.S. 93, Rosato-Lopes noticed the written work of one of Tomici's students that was "exceptionally written." Def. 56.1 ¶¶ 63-64. Concerned that the written work was plagiarized, Rosato-Lopes ran the content of the written work through an Internet search engine and discovered it had been copied. Id. ¶ 65. Tomici had given the student a grade of three on a four-point scale. Klepfish Decl. Ex. Y (Mem. from Rosato-Lopes to Santos, dated Mar. 26, 2009), CM/ECF 27-25.

March 25, 2009 was Tomici's last day teaching at I.S. 93. Tomici Dep. 120.

That day, Rosato-Lopes met with Tomici, where Tomici stated that she was unaware the student had copied work. Id. Rosato-Lopes requested that Tomici produce, by the end of the day, the student's "sourcebook, drafts, evidence of revision, and feedback she ...

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