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Lener v. Hempstead Pub. Sch.

United States District Court, E.D. New York

September 23, 2014

SUSAN LENER, Plaintiff,

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[Copyrighted Material Omitted]

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For Plaintiff: Steven Morelli and Paul Bartels, The Law Offices of Steven A. Morelli, P.C., Garden City, NY.

For Defendants: Austin Graff, The Scher Law Firm, LLP, Carle Place, NY.

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JOSEPH F. BIANCO, United States District Judge.

Plaintiff Susan Lener (" Lener" or " plaintiff" ) brings this 42 U.S.C. § 1983 action against defendants Hempstead Public Schools (" the District" )[1] and Julius Brown (" Brown" ), alleging unlawful discrimination on the basis of race, religion, and disability, in violation of the Equal Protection Clause of the United States Constitution.[2] Plaintiff alleges that defendants discriminated against her when they (1) issued letters and negative performance evaluations based on her poor attendance and punctuality; (2) refused to allow her to work during the summer of 2011; and (3) issued her a reprimand regarding an alleged incident with a student.[3]

Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing that (1) plaintiff cannot establish a prima facie case of unlawful discrimination based on race or religion, much less show pretext, because she suffered no adverse employment actions and none of the events at issue occurred under circumstances giving rise to an inference of discrimination; (2) the claim of disability discrimination under the Equal Protection Clause fails as a matter of law; (3) the District is not liable under Monell ; and (4) there is no evidence that Brown discriminated against plaintiff.

For the reasons set forth herein, the Court grants the motion for summary judgment on the Section 1983 claims in its entirety. First, with respect to the § 1983 claims based upon race and religion, there simply is insufficient evidence in the record from which a rational jury could find that any adverse action was based upon plaintiff's race or religion. Second, plaintiff's attempt to bring a disability discrimination claim and a failure to accommodate claim under § 1983, rather than under the Americans with Disabilities Act (" ADA" ),

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42 U.S.C. § § 12101 et seq., fails as a matter of law. To the extent that plaintiff attempts to re-cast these claims as " class of one" and/or " selective enforcement" claims, those claims also cannot survive summary judgment.

However, given the Court's ruling that the disability-related claims were not cognizable under § 1983, the Court allowed plaintiff to argue that she should be given the opportunity to amend her complaint to re-assert such claims under the ADA. Defendants submitted a supplemental memorandum, arguing that summary judgment would be warranted on any such proposed claims. Having reviewed the supplemental submissions, the Court, for the reasons set forth herein, concludes that the amendment should be allowed because such claims are not futile; instead, they are plausible claims that, construing the evidence most favorably to plaintiff, would survive summary judgment. Specifically, plaintiff asserts that the negative evaluation (resulting from absences arising from her medical condition), the subsequent denial of the opportunity to work four days during the summer of 2011, and the failure to provide a reasonable accommodation, violated the ADA. Plaintiff has submitted evidence to support those claims, including, inter alia : (1) an alleged statement by Brown that " a person absent ten days or more with documentation would get a needs improvement in the area of attendance, and in any of those collateral areas that are affected by attendance" ; (2) Brown's alleged threat to plaintiff in 2009 that, if she needed a " 504 accommodation," she " shouldn't be working in Hempstead" and " had to look for another job" ; (3) the Principal's testimony that he did not remember plaintiff having attendance issues before 2011; and (4) the June 10, 2011 negative evaluation, which plaintiff asserts was based solely on her absences while she was on sick leave. The Court concludes that the evidence in the record, when construed most favorably to plaintiff, is sufficient to create a genuine issue of fact as to plaintiff's proposed ADA claims, and such claims are not futile. Moreover, the District suffers no prejudice from the amendments, because the issues regarding these claims were explored fully in discovery in the context of the § 1983 claims. Accordingly, the Court will permit plaintiff to file an amended complaint containing ADA claims for disability discrimination and failure to accommodate, as related to the aforementioned events.

I. Background

A. Factual Background

The Court takes the following facts from the parties' affidavits, depositions, exhibits, and Rule 56.1 Statements of Fact. The Court construes the facts in the light most favorable to the nonmoving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2005). Although the Rule 56.1 statements contain specific citations to the record, the Court cites to the statements rather than to the underlying citations. Unless otherwise noted, where a Rule 56.1 statement is cited, that fact is undisputed or the opposing party has not pointed to any contradictory evidence in the record.

Plaintiff, a Caucasian female who has been employed by the District as a guidance counselor since 1990, is the only Jewish guidance counselor at Alverta B. Gray Schultz Middle School. (Def. 56.1 ¶ ¶ 12-13; Pl. 56.1 ¶ ¶ 13.2, 64.) Brown, a Black male, was the Principal of that school from 2004 to 2007; then Assistant Superintendent for Secondary Education; and, at the time plaintiff filed her complaint, the Assistant Superintendent for Personnel. (Def. 56.1 ¶ 3.) Since January 2013, Brown has been the Deputy Superintendent. (Pl. 56.1 ¶ 45.)

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1. Disability Accommodations

Plaintiff has depression and attention deficit hyperactivity disorder (" ADHD" ). (Def. 56.1 ¶ 14.) Her psychiatrist, Dr. Marc Reitman (" Dr. Reitman" ), informed defendants of these conditions on May 28, 2009. (Pl. 56.1 ¶ 14.1.) In a letter, Dr. Reitman wrote: " The combination of these two disorders have led to difficulties with attendance at work at times," because " [h]er symptoms of sleep disturbance make it extremely challenging to awaken in the morning on time and arrive at work at the expected hour," particularly " due to the medication changes and the impact on her symptoms." (2009 Reitman Letter, Def. Ex. J.) Dr. Reitman also requested that plaintiff be allowed accommodations at work. ( Id.)

Plaintiff, however, never communicated a request for an accommodation for her ADHD. (Def. 56.1 ¶ 15; see Pl. Responses to First Request for Production, at Response No. 8, Def. Ex. F.) She also never asked for an accommodation for her depression after its diagnosis in 2008. (Def. 56.1 ¶ 16.) She claims she did not request accommodations because Brown said that plaintiff may lose her job if she did so. (Pl. 56.1 ¶ 15.1.) Specifically, Lener testified that, after meetings regarding a " 504 accommodation" for her diagnosis, Brown commented that if plaintiff needed such an accommodation, she " shouldn't be working in Hempstead," and " had to look for another job." (Pl. 56.1 ¶ ¶ 16.1-16.4) Brown denies making this statement. (Def. 56.1 ¶ 31.) Plaintiff also did not request an accommodation after taking approximately two months off during the 2010-2011 academic year. ( Id. ¶ 17.) She testified that she did not do so because she " was worried about [her] job considering Mr. Brown was still in a supervisory capacity in the district." (Pl. 56.1 ¶ 17.1.)

2. Attendance and Punctuality Issues

Lener's employment file includes fifteen letters dating from 2002 through 2010 that address plaintiff's attendance, punctuality, and absenteeism.[4] (Def. 56.1 ¶ 19; see Attendance Letters, Def. Ex. K.) She was not permitted to work during the summer in 2009 and 2010 because of her attendance during those school years. (Def. 56.1 ¶ 24.) Those denials are not the basis of plaintiff's discrimination claims.

Instead, plaintiff takes issue with the District's actions during the 2010-2011 year, when she took two months off without requesting a leave of absence and was " just out." (Def. 56.1 ¶ 33; see Deposition of Susan Lener (" Lener Dep." ), Def. Ex. C, at 88-89 (stating that she did not take a leave of absence but used sick days for about two months in spring 2011); 2010-2011 Evaluation, Def. Ex. L (indicating that plaintiff took thirty-nine sick days during the academic year).) Lener testified that she was absent because of her depression, which causes her to suffer from sleep disorders, melancholy, anxiety, and mood changes. (Pl. 56.1 ΒΆ 19.3.) Dr. Reitman wrote letters to the District on April 1, 2011, and May 20, 2011, requesting that Lener's absence be allowed because of her treatment and changes in her medication. (Reitman 2011 Letters, Pl. Exs. G, I; Def. Exs. P, Q.) Plaintiff also was absent an additional seventeen ...

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