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Clark v. Jewish Childcare Ass'n, Inc.

United States District Court, S.D. New York

March 31, 2015

SHENIECE CLARK, Plaintiff,
v.
JEWISH CHILDCARE ASSOCIATION, INC., Defendant

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Sheniece Clark, Plaintiff, Pro se, Bronx, NY.

For Defendant: Andrew Evan Rice, Esq., Jerold D Jacobson, Esq., Proskauer Rose LLP, New York, NY.

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OPINION & ORDER

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.

Pro se Plaintiff Sheniece Clark (" Plaintiff" or " Clark" ) brings this Action against Defendant Jewish Childcare Association, Inc. (" JCCA" or " Defendant" ), alleging that Defendant engaged in discriminatory practices under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181, et seq. (the " ADA" ). Before the Court is Defendant's Motion For Summary Judgment. (Dkt. No. 35.) For the following reasons, Defendant's Motion is granted.

I. Background

A. The Facts

1. Plaintiff's Work at JCCA

JCCA is a not-for-profit organization providing a full range of social and residential services to children and their families in the New York metropolitan area. (Def.'s Statement of Material Undisputed Facts Pursuant to Local Civil Rule 56.1 (" Def.'s 56.1" ) ¶ 1 (Dkt. No. 37); Decl. of Steven Mayo in Supp. of Def.'s Mot. For Summ. J. (" Mayo Decl." ) ¶ 2 (Dkt. No. 39).)[1] JCCA's residential treatment center

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in Pleasantville, New York--the Pleasantville Cottage School (" PCS" )--serves children at risk to themselves or others, who cannot live at home. (Def.'s 56.1 ¶ 2; Mayo Decl. ¶ 3.) The New York State Office of Children and Family Services (" OCFS" ) is a government agency that, among other things, oversees and regulates child services programs like PCS, including investigations of complaints of child abuse and maltreatment. (Def.'s 56.1 ¶ 3; Mayo Decl. ¶ 5; Decl. of Andrew E. Rice, Esq. in Supp. of Def.'s Mot. For Summ. J. (" Rice Decl." ) Ex. A (Sheniece Clark Deposition Transcript (" Clark Tr." )) 120 (Dkt. No. 38).)

Clark began working for JCCA in or around April 2003 as an on-call switchboard operator. (Def.'s 56.1 ¶ 4; Complaint For Employment Discrimination (" Compl." ) ¶ II.E.1 (Dkt. No. 2); Clark Tr. 14, 63.) Clark became a full-time milieu counselor, or childcare employee, for JCAA in April 2006. (Def.'s 56.1 ¶ 5; Mayo Decl. ¶ 4; Clark Tr. 63--64.) As a milieu counselor, Clark worked in the residential cottages at PCS and was responsible for the everyday needs and activities of the residents, including, among other things, the safety, supervision, and accountability of the residents, the upkeep of the cottage to which she was assigned, and escorting residents to appointments. (Def.'s 56.1 ¶ 6; Mayo Decl. ¶ 4; Clark Tr. 79--82; Rice Decl. Ex. E (JCCA Milieu Counselor Job Description).) Clark stated that she was able to do all of the job duties in the JCCA Milieu Counselor Job Description, except: (i) she attended briefings and treatment conference meetings only as assigned by the supervisor of PCS (rather than all such briefings or meetings); (ii) she and the other milieu counselors did not fix the residents' hair; and (iii) she only took residents out with permission from the supervisor and the consent of the residents' legal guardians. (Def.'s 56.1 ¶ 7; Clark Tr. 82--83.) The residents for whom Clark was responsible as a milieu counselor were adolescent females, (Def.'s 56.1 ¶ 8; Clark Tr. 79--80), and Clark worked in several different PCS cottages over the course of her employment as a milieu counselor, (Def.'s 56.1 ¶ 9; Clark Tr. 71, 73--74, 76--78). Clark stated that she was a " target" in one of the cottages, Cottage 16, because the residents in that unit did not like her because of her " structured style of work," and that JCCA set her up to be in that position in September 2010. (Def.'s 56.1 ¶ 10; Clark Tr. 85--86.)

2. Plaintiff's Disability Leave and Accommodation Requests

Clark went on leave on two occasions while she was employed at JCCA. (Def.'s 56.1 ¶ 11; Clark Tr. 95, 99--100.) From May 3, 2008 through August 2008, Clark took a workers' compensation disability leave due to a torn ligament in her right shoulder. (Def.'s 56.1 ¶ 12; Compl. ¶ II.E.2; Clark Tr. 96--97.) Clark first became disabled when she inured her right shoulder on May 3, 2008, (Def.'s 56.1 ¶ 13; Clark Tr. 101), after a JCCA resident hit her with a chair, (Pl.'s Objections & Responses to Def.'s Mot. For Summ. J. (" Pl.'s Mem." ) at unnumbered 2 (Dkt. No. 46); Clark Tr. 96). Dr. Eial Faierman treated Clark's shoulder every six weeks thereafter and Clark was experiencing increased right shoulder and neck pain for several months. (Def.'s 56.1 ¶ ¶ 14--15; Clark Tr.

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193--195.) On March 30, 2011, Clark re-injured her right shoulder when she attempted to stop a resident from vandalizing her car, (Pl.'s Mem. at unnumbered 3), and went on leave again until August 9, 2011, (Def.'s 56.1 ¶ 16; Clark Tr. 49, 60, 77, 97--98). Because of the incident, Plaintiff was " limited [in her] ability to perform certain manual tasks, lift [her] right arm, turn [her] head, or work." (Pl.'s Mem. at unnumbered 3.) Clark states that " [s]tarting on or about March 31 through April 19, 2011, [she] called out each of [her] scheduled workdays, citing [her] injury as the reason, ( id. ), and she alleges that " JCCA disputed [her] disability for over five weeks before eventually accommodating [her]," ( id. at unnumbered 1).[2] Clark returned to work in August 2011 because she " felt okay," and it was not against her doctor's recommendation or wishes. (Def.'s 56.1 ¶ 17; Clark Tr. 110--111.) Clark's doctor did not place any restrictions on her when she returned to work. (Def.'s 56.1 ¶ 18; Clark Tr. 205.)

Clark identified two alleged requests for accommodation that she made related to her disability in 2008, and stated that in 2010 she reported concerns about unsafe working conditions. (Def.'s 56.1 ¶ 19.) Clark testified that she sought, as an accommodation for her alleged disability, " [a] change in [her] schedule due to going to physical therapy, [and that] numerous time[s], [she] asked to have [her] schedule change[d] due to the safety of being in certain cottages that [her] supervisor had placed [her] in which [were] dangerous situations due to [her] . . . work-related injury . . . ." (Def.'s 56.1 ¶ 20; Clark Tr. 39--40.) Clark also stated that she sought a transfer back to the switchboard as an accommodation, starting in 2008 and again in 2010 and in 2011 before she went on leave after re-injuring her shoulder. (Def.'s 56. ¶ 21; Clark Tr. 42.) Clark believes that JCCA's denial of the requested accommodations was discriminatory because of her history of challenging supervisors, and she testified that JCCA accommodated several other employees with alleged disabilities in various ways. (Def.'s 56.1 ¶ ¶ 24--25; Clark Tr. 112--114, 205.)

In or around early 2011, Clark requested a transfer out of Cottage 16, and that request was granted that same day with assistance from JCCA Senior Human Resources Associate Michelle Borges (" Borges" ). (Def.'s 56.1 ¶ 23; Mayo Decl. ¶ 7; Clark Tr. 76--77, 90--91.) Clark did not request any accommodation upon her return to work in August 2011. (Def.'s 56.1 ¶ 26; Clark Tr. 205.)

3. OCFS Indications and Termination of Plaintiff's Employment

According to the New York Social Services Law, OCFS must timely assess a report of maltreatment of a child made by a mandated reporter. N.Y. Soc. Serv. Law § 424(5-b). OCFS must determine within sixty days whether the report is " indicated" or " unfounded." Id. § 424(7). An " indicated report" means " a report made . . . if an investigation determines

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that some credible evidence of the alleged abuse or maltreatment exists." Id. § 412(7). In 2009, OCFS " indicated" Clark in a report of abuse and neglect concerning an incident in late April 2009 involving a resident in her care. (Def.'s 56.1 ¶ 27; Clark Tr. 120--121.) OCFS interviewed Clark in connection with the April 2009 incident and concluded that Clark had abused the resident in her care. (Def.'s 56.1 ¶ ¶ 28--29; Clark Tr. 128.) JCCA placed a disciplinary notice in Clark's personnel file concerning the 2009 OCFS indication, which stated that it was " a final warning and in the event that another incident of a similar nature occurs, [her] employment [would] be terminated." (Def.'s 56. 1 ¶ 30; Clark Tr. 135--136; Rice Decl. Ex. F (9/29/09 Disciplinary Action Memorandum).) In March 2010, OCFS upheld the 2009 indication against Clark after an administrative review, determining that there was a " fair preponderance of evidence to [r]etain the report." (Def.'s 56.1 ¶ 31; Clark Tr. 149--150; Rice Decl. Ex. G (3/29/2010 Letter from OCFS).)

OCFS indicated Clark for abuse of a resident again in 2011, concerning an incident on March 14, 2011. (Def.'s 56.1 ¶ 32; Clark Tr. 150.) Clark states that on the day of the incident she " and two co-workers escorted two residents to another part of the JCCA facility for disciplinary purposes." (Pl.'s Mem. at unnumbered 2.) The resident " threw a punch" at one of her co-workers, " who in turn restrained the resident by initiating a 'therapeutic hold'" and Clark " assisted [her co-worker] with the hold, was bitten by the resident, and had to receive medical treatment at Westchester Medical Center's Emergency Room." ( Id. at unnumbered 2--3.) According to Clark, the other two co-workers involved in the incident were not indicated. ( Id. at unnumbered 4.) Clark did not complete a critical incident report concerning the March 14, 2011 incident, despite the fact that it was her responsibility to document any such incident. (Def.'s 56.1 ¶ 33; Clark Tr. 156--157, 221--222.) According to Clark, a JCCA social worker Ms. Evensen (" Evensen" ) and the JCCA Director of Campus Life, Ms. Fazio (" Fazio" ) reported the March 14, 2011 incident to OCFS after the resident-victim reported it to Evensen on June 1, 2011. (Def.'s 56.1 ¶ 34; Clark Tr. 159--161.) Clark acknowledged that upon learning of the incident, Evensen was mandated to report the incident to OCFS. (Def.'s 56.1 ¶ 35; Clark Tr. 161.)

In a letter dated August 3, 2011, OCFS advised JCCA that it indicated Plaintiff for abuse and maltreatment of a child concerning the March 2011 incident. (Pl.'s Mem. Ex. 21.) In a letter dated the same day, JCCA informed Clark that OCFS had indicated the report of maltreatment, explaining that this meant " some credible evidence was found to substantiate the allegations that the child(ren) named in the report ha[d] been abused or maltreated." ( Id. at Ex. 20.)

On August 11, 2011, JCCA terminated Clark's employment. (Def.'s 56.1 ¶ 36; Clark Tr. 208.) Clark had already returned from her leave when she was notified of her termination. (Def.'s 56.1 ¶ 37; Clark Tr. 252.) JCCA informed Clark that she was terminated because of the second OCFS indication against her. (Def.'s 56.1 ¶ 39; Compl. ¶ II.E.5; Clark Tr. 209--210, 216; Rice Decl. Ex. J. (Letter from Kay Turner to Sheniece Clark).) Other documents reflect that Clark was terminated from employment because of the OCFS findings against her. (Def.'s 56.1 ¶ 40; Clark Tr. 207--209; Rice Decl. Ex. H (Notice of Termination of Employment); Rice Decl. Ex. I (8/11/11 email from Michelle Borges to Pauline Sukhan).) JCCA claims that it never told Clark that there was any reason for her termination other than the OCFS findings. (Def.'s 56.1 ¶ 41; Clark Tr. 210, 216.) Clark

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claims that after she was terminated, Borges " admitted to [her] that management was 'upset' that she took a second disability leave." (Pl.'s Mem. at unnumbered 5.) At her deposition, however, Plaintiff testified that Borges informed her management was upset that she took a second disability leave on April 14, 2011 and August 5, 2011, the latter of which was six days before her termination. (Reply Decl. of Andrew E. Rice, Esq. in Supp. of Def.'s Mot For Summ. J. (" Rice Reply Decl." ) Ex. A (" Clark Tr." ) 187--188 (Dkt. No. 43).)

On November 19, 2009 and in 2011 after her termination, Clark requested that OCFS expunge the indications against her. (Def.'s 56.1 ¶ 42; Clark Tr. 253; Pl.'s Mem. Ex. 3; id. Ex. 10.) The OCFS Administrative Law Judge found that OCFS did not meet its burden to prove that Clark committed the alleged acts of neglect in 2009 or 2011 because counsel for OCFS, prior to a hearing scheduled on January 6, 2012, informed the judge that OCFS would not present any evidence at the hearing. (Def.'s 56.1 ¶ ¶ 43--33; Clark Tr. 261--263; Rice Decl. Ex. K (OCFS Decision After Hearing).) There is nothing in the record explaining why OCFS did not present its evidence.

On November 22, 2011, Clark filed a complaint with the New York State Division of Human Rights (" NYSDHR" ) against JCCA. (Def.'s 56.1 ¶ 46; Rice Decl. Ex. C (Clark NYSDHR Complaint); Clark Tr. 33--35.) The NYSDHR dismissed Clark's complaint, finding that " [t]he evidence gathered during the course of the investigation [was] not sufficient to support that [Clark] was discriminated against by [JCCA] based on her disability (shoulder injury) and/or retaliation," and concluded that Clark " was terminated as a result of having two (2) child abuse investigations against her." (Def.'s 56.1 ¶ ¶ 48--49; Rice Decl. Ex. D (NYSDHR Determination and Order After Investigation).) Clark's NYSDHR complaint was cross-filed with the U.S. Equal Employment Opportunity Commission, which adopted the NYSDHR's findings and issued Clark a dismissal and notice of right to sue in September 2012. (Def.'s 56.1 ¶ 50; Clark Tr. 62.)

Clark testified that the first instance of retaliation against her by JCCA occurred in June 2011, when JCCA reported an incident involving Clark to OCFS. (Def.'s 56.1 ¶ 57; Clark Tr. 114.) Clark also alleges that JCCA retaliated against her because a family member had filed a complaint against JCCA. (Def.'s 56.1 ¶ 58; Clark Tr. 39.) Specifically, Clark's sister, Cedeka Gooden, filed a complaint with the New York City Commission on Human Rights and the U.S. Equal Employment Opportunity Commission against JCCA in June 2010, asserting sex discrimination and retaliation claims under Title VII of the Civil Rights Act and the New York City Human Rights Law. (Def.'s 56.1 ¶ 59; Mayo Decl. ¶ 6.) Additionally, Clark alleges that JCCA retaliated against her because she was " an outspoken employee and [was] always challenging [her] . . . supervisors . . ." and " they did not like her." (Def.'s 56.1 ¶ ¶ 60--61; Clark Tr. 39, 145.) Clark also claims that her termination was retaliation for taking a second disability leave and for fighting to be removed from Cottage 16 due to safety reasons. (Def.'s 56.1 ¶ 62; Clark Tr. 217.)

B. Procedural History

Plaintiff filed the Complaint on December 21, 2012. (Dkt. No. 2.) The Court granted Plaintiff's request to proceed in forma pauperis on January 23, 2013. (Dkt. No. 4.) Pursuant to a Scheduling Order dated July 7, 2014, (Dkt. No. 33), Defendant filed its Motion For Summary Judgment and accompanying papers on August

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8, 2014, (Dkt. Nos. 35--39). The Court received Plaintiff's opposition papers on September 12, 2014, but they were not filed until March 6, 2015.[3](Dkt. No. 46.) Defendant filed its reply memorandum of law and ...


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