United States District Court, N.D. New York
Cooper Erving & Savage LLP, Carlo Alexandre C. de Oliveira, Esq., Philip G. Steck, Esq., Albany, New York, Attorneys for Donna Scarpinati de Oliveira.
Girvin & Ferlazzo, P.C., Patrick J. Fitzgerald, Esq., of counsel, Scott P. Quesnel, Esq., of counsel, Albany, New York, Attorneys for Cairo-Durham Central School District, Cairo-Durham Board of Education, Sally Sharkey and Susan Kusminsky.
New York State United Teachers, Office of General Counsel, Richard E. Casagrande, General Counsel, Anthony J. Brock, Esq., of counsel, Latham, New York, Attorneys for Cairo-Durham Teacher's Association and Justin Karker.
MEMORANDUM-DECISION AND ORDER
NORMAN A. MORDUE, Senior District Judge.
In July 2009, plaintiff Donna Scarpinati de Oliveira, an elementary school teacher, took a 12-week leave of absence following the birth of her child. Approximately six months after returning to work she received notice that, due to budgetary cuts, as one of the four least senior teachers in the elementary school, she would be laid off at the end of the school year. Plaintiff asserts claims under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601; Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. ("Title VII"); 42 U.S.C. § 1983 ("section 1983"); the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) ("PDA"); Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 ("Title IX"); and the New York State Human Rights Law, Executive Law §§ 290 et seq. ("NYSHRL"). Dkt. No. 4.
Pending before the Court are three motions: defendants Cairo Durham Teacher's Association ("Teacher's Association" or "Union") and Justin Karker, President of the Teacher's Association, move (Dkt. No. 84) for summary judgment under Fed. R.Civ. P.56; plaintiff moves (Dkt. No. 85) for summary judgment; and defendants Cairo-Durham Central School District ("District"); Cairo-Durham Board of Education ("Board") (together, "School defendants"); Sally Sharkey, Superintendent of Schools; and Susan Kusminsky, President of the Board of Education, move (Dkt. No. 88) for summary judgment. The Court denies plaintiff's motion for summary judgment and grants defendants' motions for summary judgment.
Viewed in the light most favorable to plaintiff, the facts are as follows and are undisputed unless noted otherwise. On August 30, 2007, the District hired plaintiff as an elementary education teacher. The District hired a sixth grade math teacher, Peter Goodwin, the same day. Material to this case is the sequence in which plaintiff and Goodwin were appointed at the August 30, 2007 Board of Education meeting. The meeting minutes state:
c. Appoint Donna Scarpinati-Oliveira to a 3 year probationary position as a Cairo Elementary teacher... effective September 1, 2007 through August 31, 2010. Ms. Scarpinati-Oliveira holds provisional certification in PreKindergarten, Kindergarten & grades 1-6.
d. Appoint Peter Goodwin to a 3 year probationary position as a 6th Grade Math teacher... effective September 1, 2007 through August 31, 2010. Mr. Goodwin holds initial certification in Mathematics (Grades 5-9).
Dkt. No. 85-2. Even though they were hired on the same day, in the District's view, plaintiff was the senior employee because her name precedes Goodwin's in the Board minutes. Also pertinent to the issues in this case is the appointment of Erin Murphy, who the District hired as a sixth grade English teacher on September 20, 2007.
Plaintiff taught fourth grade during the 2007-2008 school year and first grade during the 2008-2009 school year. In a letter dated June 8, 2009, plaintiff notified Superintendent Sharkey that she would be taking maternity leave as provided for in the contract between the District and the Teachers Association and under the FMLA:
I am writing to inform you that my maternity leave will be effective on or around July 9, 2009 or as necessary by the birth of my child. It is my intention to take my maternity leave provided by our contract and FMLA leave, subject to the safe delivery of my child. I plan to take a portion of the beginning of next year, after my period of disability has ended, unpaid. I plan to return to work at Cairo Elementary School on October 13, 2009.
I understand that my FMLA leave will run concurrently with my period of disability that will extend beyond the statutory period provided for childbirth and recovery, it is also my understanding that Cairo-Durham Central School District will continue to pay its share of my health insurance cost during the period of my disability and/or FMLA leave.
Dkt. No. 88-21.
In a letter to plaintiff dated July 16, 2009, Superintendent Sharkey wrote:
This letter is notify you that, at the Board of Education meeting on July 9, 2009, the Board approved your leave request beginning on or about July 9, 2009 through October 13, 2009 for the purpose of disability (maternity) and child care leave. Upon verification from your physical that you are disabled, and to the extent that you have accumulated sick leave, you will be paid for up to the first six (6) weeks of the leave in accordance with the CDTA Bargaining Agreement (Article 5C). Any period beyond the first 6 weeks will be unpaid.
Dkt. No. 90-1.
On or about August 19, 2009, the District and Superintendent Sharkey issued plaintiff a notice regarding her request for "Family/Medical Leave", which advised as follows:
Except as explained below, you have a right under, the FMLA for up to 12 weeks of unpaid leave in a 12 month period for the reasons listed above. Also, your health benefits must be maintained during any period of unpaid leave under the same conditions as if you continued to work, and you must be reinstated to the same or an equivalent job with the same pay, benefits, and terms and conditions of employment on your return from leave. If you do not return to work following FMLA leave for a reason other than: (1) the continuation, recurrence, or onset of a serious health condition which would entitle you to FMLA leave; or (2) other circumstances beyond your control, you may be required to reimburse us for our share of health insurance premiums paid on your behalf during your FMLA leave.
Dkt. No. 84-4. The notice further advised plaintiff: that she was eligible for leave under the FMLA; that it would be counted against her annual FMLA leave entitlement; and that she would not be required to furnish medical certification.
Plaintiff received 8 weeks of paid leave: July 15, 2009 to September 8, 2009. For the 23 school days between September 9, 2009 and October 13, 2009, when she returned to work, plaintiff was on unpaid FMLA leave.
According to Superintendent Sharkey, during the 2009-2010 school year, it became apparent that the budget for the 2010-2011 school year "would have to include substantial reductions, including reductions in staffing." She began working with the Teacher's Association to prepare an elementary education tenure area seniority list. Superintendent Sharkey states in her affidavit that: "Consistent with applicable law, when creating and updating its tenure are seniority lists the School District credited teachers with each day of paid employment with the School District (including paid work days and paid leave days) beginning from the commencement of a teacher's probationary period." According to Sharkey, "in accordance with the law and decisions of the New York State Commissioner of Education, periods of unpaid leave, for whatever purpose, were not credited for seniority calculation purposes."
In February 2010, the District's attorney, Christine Lanchantin, Esq., and Superintendent Sharkey's secretary, Barbara Agostinoni, exchanged several emails regarding the seniority lists that Agostinoni had been "working on" and providing to Lanchantin for review. In the emails, Agostinoni and Lanchantin discussed the issue of tenure, whether tenure was defined for particular teachers upon appointment by the Board, how to "break the tie" "as far as persons with the same seniority, appointed at the same board meeting". Plaintiff is not mentioned in the emails. In an affidavit, Lanchantin explained the process she used in assessing the District's seniority lists, she states:
In performing this task I reviewed information pertaining to particular teachers' certification areas, dates of appointments, and periods of unpaid leave.
Consistent with applicable law and regulations, I ensured that when creating and updating its tenure area seniority lists the School District credited teachers with each day of paid employment with the School District (including paid work days and paid leave days) beginning from the commencement of a teacher's probationary period (or long term substitute service with the School District, if applicable).
... I advised the School District that, based upon my knowledge and understanding of the Education Law and Regulations of the Commissioner of Education, periods of unpaid leave, taken for whatever purpose, were not credited for seniority calculation purposes.
My determination that the period of unpaid leave taken by [plaintiff] during the early part of the 2009-2010 school year should not be included in her seniority calculation and subsequent advice to the School District regarding same were in no way related to [plaintiff], her gender, her pregnancy status, or any FMLA leave....
Dkt. No. 88-16 (internal paragraph numbers omitted).
On March 4, 2010, Superintendent Sharkey and Scott Richards, the elementary school principal, met with plaintiff to inform her that as the "fourth least senior teacher" in the elementary tenure area, she was being laid off. Superintendent Sharkey told plaintiff that "the fact that she took 23 days of unpaid leave" in the beginning of that school year, "play[ed] a role in determining seniority" and that the seniority determination "came down to those days."
At a subsequent administrative hearing, plaintiff recounted this meeting as follows:
When I got in, Mr. Richards was silent. The Superintendent talked and said due to budgetary reasons they were cutting four elementary positions in the following year and mine would be one of them. Then she went on to ask about how my baby was and when she was born and how old she was, and I told her, and then the conversation immediately went to, "Those 24 days got you, " and I was thinking to myself, "24 days got me." She referred to 23 days in her affidavit. I heard 24 days on that meeting day, and I'm thinking to myself, "24 got me, " and then I brought up, "Well, the 24 days that I took were within my FMLA parameter leave days." And then I was told that the purpose of FMLA was so that she could not fire someone before they got back, that it was so they had job security and that unpaid leave was unpaid leave and it was the law. That's what I was told.
Dkt. No. 85-6.
Following the meeting, plaintiff sought her Union's assistance and wrote a letter, dated March 6, 2010, to Justin Karker, the Union president:
I have spoken with a few people familiar with FMLA law and I have also conducted my own research of the law. My conclusion is that I could not have been terminated for the reasons that were given to me....
The main question that I am asking myself is:
(1) Can FMLA leave be used in any way to justify my termination? If the answer is yes, then I would have no claim. If the answer is no, then I have a very strong case.
It is important that you read my statement attached to understand my concerns. Superintendent, Sally Sharkey, told me that the reason for my termination was that during my FMLA leave for the birth of my child, I did not accrue seniority and, as a result, the 24 days of unpaid leave I took was what made her decide to terminate my position.
I am familiar with the concept of seniority. There is no doubt that an employee with less seniority than another would be first to be terminated when cuts are necessary. However, this is the million dollar question:
(2) Can the employer count the time the employee was out on unpaid FMLA leave against me in any way because if that was the case, why would an employee ever take FMLA leave if that leave could be used against him or her?
I would have no problem if, before I took my FMLA leave, I had less seniority than someone else and, therefore, I was the one to go. However, my termination cannot be based on my unpaid FMLA leave. I also learned that another teacher who I believe has more seniority than people who have not been cut has also been terminated while out on maternity leave. I am also aware of another instance where teachers who were pregnant or due to be out on child care leave were told in an e-mail that they must attend summer professional development. I attended the summer professional development courses within weeks of my child's birth because I was scared I would be in trouble if I did not go. Therefore, the District's actions are very suspicious and, in my opinion, illegal. I would like to discuss these incidents with our counsel.
In sum, the District cannot use my FMLA leave against me in any way. I feel that I have been punished by having taken FMLA leave.
Please, share this letter and the enclosed documents with our Union counsel as soon as possible. My family and I have been deeply affected by this termination and I want to make sure that my rights are protected.
Dkt. No. 84-9.
Plaintiff and Karker met on March 12, 2010. Plaintiff told him that she was concerned "that Salley Sharkey was targeting teachers on maternity leave because Maria Fiorita,  a senior teacher in the school who happened to be out on child care leave at the same time as I was, was also being laid off. Mr. Karker assured me that he would investigate my concerns and that he would be crossing the t's and dotting the i's to make sure all my concerns were taken care of." In his affidavit, Karker states that he advised plaintiff that he "would send her concerns to New York State United Teachers ("NYSUT"), the Association's statewide affiliate within the next couple days' to assist" him and the Union "with determining whether or not plaintiff was the proper subject of layoff due to being the least senior elementary teacher."
Although the record does not indicate when, eventually, plaintiff learned that the District had excluded Goodwin and Murphy from the elementary seniority list. Plaintiff believed that, although they taught sixth grade math and English in the middle school, as sixth grade teachers they were nevertheless deemed elementary school teachers under New York law and should have been included on the elementary tenure area seniority list. Had they been included, plaintiff, by her own calculation, would have been senior to both of them since she was appointed before Goodwin (according to the Board minutes) and was appointed 21 before Murphy. Plaintiff, therefore, would have been sixth, rather than fourth, on the elementary seniority list, and would not have lost her job.
Following the layoff meeting with plaintiff, the District contacted Lanchantin regarding the seniority lists again. In an email to Superintendent Sharkey dated March 15, 2010, Lanchantin wrote:
Hi Sally - I'm sorry that you are still unsure of your seniority lists. As I understand it... there are 2 issues:
1. Whether unpaid leaves count toward seniority.
2. Tenure area of Erin Murphy and Peter Goodwin[.] I regard to 1, I am attaching several cases that discuss the concept that unpaid leave does not count as service to the district. This is a well known and universally accepted concept.
In regard to 2, .... While I understand that, based solely on Part 30 it can be argued that "6th grade is 6th grade" and can only be in the elementary tenure area, I believe there are other factors to be considered.
Specifically, teachers generally cannot be tenured in an area in which they are not certified to teach. So, if these teachers are placed in the elementary tenure area and a 6th grade English position is cut or you go back to traditional elementary school (K-6), they would have to be placed in a traditional classroom for which they are not certified, and then they would have to be fired as uncertified.
I have called SED and gave them the 2 options. Their initial reaction was to agree with my initial interpretation, but I played devil's advocate and gave them the Part 30 interpretation. They didn't know the answer and are currently researching it....
Last, I happen [sic] to be in a conference with some NYSUT reps on Friday and asked them where they would be with this. They did not feel an Elementary tenure was appropriate either. They went back today and researched it, and agreed that they could not find anything on point either, but agreed with me that the "lesser of the 2 evils" was the content area. It appears that, once again, SED did not consider the effects of these new certifications.
I honestly see more issued by putting them in an elementary tenure area, but if you are uncomfortable with that, then an elementary designation is supportable.
Karker testified that he forwarded plaintiff's March 6, 2010 letter to NYSUT, contacted Peter Stelling, the labor relations specialist assigned to the District, and met with his executive board. Karker provided Stelling with the names of all of the teachers in jeopardy, including plaintiff, Goodwin and Murphy as well as their "background with regard to their employment history, dates of hire, longevity of service, leaves of absence, both paid and unpaid, information regarding total length of service in the district as well as length of service in the tenure area."
In investigating the issue of the exclusion of sixth grade teachers from the elementary tenure list, Stelling testified that he spoke with Lanchantin and consulted the NYSUT staff director. He also raised the issue at the periodic staff meeting, which was attended by "all of the labor relations specialists and the staff director" and everyone "concurred" that the District properly excluded sixth grade teachers from the tenure area. At his deposition, Stelling testified about NYSUT's consideration of plaintiff's claims:
Q. So Mr. Karker called you to talk about the Family and Medical Leave Act, among other things, as it related to Donna De Oliveira's seniority; isn't that correct?
A. Many times.
Q. And isn't it true that Mr. Karker and you had agreed that the union should work this issue out as to how the proper seniority list was determined, that the union should work this out with the district?
A. I wouldn't say work it out. I would say develop our own independent conclusions and compare and contrast those conclusions with those of the district.
Q. Did you come at some point to the conclusion that the union and the district had an ...