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Harris v. Board of Education of City School District of City of New York

United States District Court, E.D. New York

February 2, 2017

MARY HARRIS, Plaintiff,
v.
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, a/k/a “The New York City Department of Education”, Defendant.

          Plaintiff Gary R. Novins Jonathan A Tand Jonathan A. Tand & Associates.

          Defendant William A Grey Natalie Sharon Marcus New York City Law Department.

          JUDGMENT, MEMORANDUM, AND ORDER

          JACK B. WEINSTEIN, SENIOR UNITED STATES DISTRICT JUDGE.

         I. Introduction ......................................................................................................................... 1

         II. Facts ..................................................................................................................................... 2

         A. Initial Proceedings ........................................................................................................ 2

         B. Motion to Dismiss and Motion for Summary Judgment ............................................ 5

         III. Law .................................................................................................................................... 6

         A. Standard for Summary Judgment ............................................................................... 6

         B. Statute of Limitations ................................................................................................... 6

         1. 42 U.S.C. § 1983 ......................................................................................................... 6

         2. NYSHRL, NYCHRL, and New York Tort Claims ................................................. 7

         3. Continuing Violation ................................................................................................. 7

         C. Constitutional Violations under § 1983 ....................................................................... 8

         1. First Amendment, 42 U.S.C. § 1983 ......................................................................... 8

         2. Fourteenth Amendment, 42 U.S.C. § 1983 .............................................................. 9

         3. Due Process .............................................................................................................. 12

         IV. Application of Law to Facts ........................................................................................... 13

         A. NYSHRL, NYCHRL, and New York Tort Claims ................................................... 13

         B. Constitutional Claims under § 1983 .......................................................................... 14

         1. First Amendment, 42 U.S.C. § 1983 ....................................................................... 14

         2. Fourteenth Amendment, 42 U.S.C. § 1983 ............................................................ 16

         3. Statute of Limitations on § 1983 Claims ................................................................ 29

         4. Monell Liability ....................................................................................................... 29

         V. Conclusion ......................................................................................................................... 29

         I. Introduction

         Essentially this case - as do many of our teacher discrimination cases - reveals fundamental stresses in our public education system: a good faith attempt by an incoming principal to improve the quality of teaching in a poorly performing school, clashing with experienced, devoted teachers resenting criticism of their teaching methods and the increased discipline and changes sought to be imposed on them. Here, if there was any discrimination - and there appears to be none - it was not age-based, as alleged. The matter is resolved in favor of defendant on the basis of the relevant statute of limitations and the failure to take advantage of appropriate administrative remedies.

         Plaintiff sues her former employer, the Board of Education of the City School District of the City of New York (“DOE”) for discrimination against her on the basis of her age, in violation of federal, state, and city law. She also asserts claims of negligent hiring and improper supervision by her principal.

         Defendant moves for summary judgment on all claims. The motion is granted.

         II. Facts

         A. Initial Proceedings

         Plaintiff Mary Harris is 57 years old. She was employed by defendant DOE from 1986 to 2015. Compl., July 7, 2016, ECF No. 1 (“Compl.”), at ¶ 8. She began work as a paraprofessional; after she received her Bachelor's degree, she became a full-time teacher. Id. Eventually she earned two Master's degrees. Id. From 2006 on, plaintiff worked for defendant in its MS 226 middle school as a language arts teacher in the English Language Arts department. Id. at ¶ 10.

         She received positive evaluations until 2010, when Ms. Rushell White became the principal of MS 226, and plaintiff's supervisor. Id. at ¶¶ 12-14. Ms. White is younger than plaintiff. Id. at ¶ 16.

         Age discrimination by Ms. White and other MS 226 administrators is claimed. Ms. White assigned plaintiff to teach an Integrated Co-Teaching class (“ICT”). Pursuant to New York law in 2010, such a class had to be taught by two people - a special education teacher and a general education teacher. Id. at ¶¶ 20-21. Plaintiff is a general education teacher. She alleges that the special education teacher assigned to her course was often absent because of a pregnancy, and eventually left on maternity leave. Id. at ¶ 23. Plaintiff asked Ms. White to reassign a new special education teacher to the course to comply with New York law. When Ms. White failed to do so, plaintiff complained to her union. The union reported the apparent violation to the State. Id. at ¶¶ 24-26.

         Following this incident, Ms. White allegedly expressed hostility towards plaintiff. Id. at ¶ 27. Plaintiff claims that Ms. White: (1) made a derogatory comment that she would not allow her own son to be placed in plaintiff's class; (2) subjected plaintiff to excessive random classroom checks; (3) gave plaintiff unjustified “Ineffective” ratings for the 2013/2014 and 2014/2015 academic years; (4) withheld necessary test preparation material for state-mandated tests (“Test Ready material”) from plaintiff, in an attempt to cause plaintiff's students to perform poorly and use this reason to fire plaintiff; (5) expressed dislike of plaintiff to a student; and (6) issued a letter of excess to plaintiff, changing her employment conditions materially. Id. at ¶¶ 28-68.

         Plaintiff reported the “Ineffective” rating to her union as related to age discrimination. Def.'s Local Rule 56.1 Statement of Undisputed Material Facts, Dec. 15, 2016, ECF No. 28 (“Def.'s Rule 56.1 Statement”), at ¶¶ 83-84. A hearing was provided. The Opinion and Award issued concluded that plaintiff's “Ineffective” rating was not given because of harassment or reasons other than inadequate job performance. Decl. in Supp. of Def.'s Mot. for Summ. J. (“Marcus Decl.”) at Ex. K, Dec. 15, 2016, ECF No. 30-11.

         When plaintiff requested a “Smartboard” - a piece of interactive classroom equipment - from the school, she did not receive one. An administrator commented to plaintiff that her failure to use of a Smartboard made her less effective than younger teachers. Compl. at ¶¶ 56-59. Plaintiff argues that this conduct caused such severe stress that she suffered from insomnia, stomach aches, and vaginal hemorrhaging. Id. at ¶¶ 69-71.

         She received a letter of excess from the DOE on June 25, 2015. It informed her that she was being placed in excess from MS 226. Marcus Decl. at Ex. X, Dec. 15, 2016, ECF No. 30-24. “[A] teacher may be ‘excessed' from the school where she is currently assigned when the number of teachers in a certain license area exceeds the allocated positions. The teacher with the least seniority may be removed, but the DOE is obligated to place that person in another assignment somewhere in the system.” Def.'s Mem. of Law in Supp. of its Mot. for Summ. J., Dec. 15, 2016, ECF No. 27 (“Def.'s Summ. J. Mot.”) at 12 n.6. After receiving the letter, plaintiff became a member of the absent teacher reserve pool (“ATR”) for the 2015/2016 academic year; there was no reduction in her salary or benefits. Def.'s Rule 56.1 Statement at ¶¶ 160-63.

         In January 2016, MS 226 filed charges against plaintiff based on allegations of incompetence during the 2013/2014 and 2014/2015 academic years. Id. at ¶ 164. In April 2016, the DOE and plaintiff resolved these charges through a settlement. Plaintiff agreed to be suspended without pay for one month, take nine hours of coursework at her own expense, and be assigned to the ATR. Id. at ¶¶ 165-66; Marcus Decl. at Ex. BB, Dec. 15, 2016, ECF No. 30-28. Plaintiff retired on July 1, 2016. Marcus Decl. at Ex. B, Dec. 15, 2016, ECF No. 30-2 at 14:9-14.

         She filed the instant complaint in July 2016, alleging violation of (1) her Fourteenth Amendment Right to Equal Protection pursuant to 42 U.S.C. § 1983; (2) her First Amendment Right to Free Speech pursuant to 42 U.S.C. § 1983; (3) her freedom of speech right pursuant to New York Constitution Article 1, Section 8; (4) protections against discrimination and retaliation under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (“ADEA”); (5) discrimination and retaliation protections under the New York State Human Rights Law, N.Y. Executive Law §§ 290, et seq. (“NYSHRL”) and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101, et seq. (“NYCHRL”); (6) protections against discrimination on the basis of plaintiff's national origin pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), the NYSHRL, and the NYCHRL; and (7) protections against negligent hiring and supervision under New York common law. See generally Compl.

         B. Motion to Dismiss and Motion for Summary Judgment

         In September 2016, defendant filed a motion to dismiss. See Def.'s Mem. of Law in Supp. of its Mot. to Dismiss the Compl., Sept. 23, 2016, ECF No. 15.

         By an order dated September 30, 2016, the court determined that the case could be more effectively administered if the motion to dismiss were replaced by a motion for summary judgment. Order, Sept. 30, 2016, ECF No. 17. That motion was then filed by defendant in December 2016. See Def.'s Summ. J. Mot.

         Plaintiff withdrew her Title VII and ADEA claims for age discrimination because she had failed to file a timely charge with the Equal Employment Opportunity Commission. She also withdrew all claims of discrimination based on national origin, pursuant to a settlement she had previously entered into with defendant. See Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J., Dec. 29. 2016, ECF No. 31 (“Pl.'s Opp'n Mem.”).

         The parties appeared in person with counsel at an evidentiary hearing on the motion for summary judgment. See Hr'g Tr., Jan. 9, 2017, ECF No. 39 (“Jan. 9 Hr'g Tr.”). The court questioned both plaintiff and the principal she complained against, Ms. White, under oath.

         III. ...


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