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Pistello v. Board of Education of Canastota Central School District

United States District Court, N.D. New York

March 30, 2017



          Lawrence E. Kahn U.S. District Judge


         This case involves a dispute between the Canastota School District and Michele Pistello, a former teacher and employee at the Canastota High School, relating to events that led up to the her resignation. Dkt. No. 1 (“Complaint”) ¶ 9. After making complaints to members of the administration, filing a sexual harassment report, and being transferred to the district's middle school, Pistello resigned from her teaching position. Id. ¶ 45. Pistello then brought suit against the School District alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3; Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12203; Section 504 of the Rehabilitation Act (“RA”) of 1973, 29 U.S.C. § 794a; the Equal Protection Clause; and New York Education Law section 3028-d. Presently before the Court is the School District's Motion for Judgment on the Pleadings. Dkt. No. 12 (“Motion for Judgement on the Pleadings”). For the reasons stated below, the motion is granted in part and denied in part.


         A. Factual History

         Pistello began teaching English for special education students at the Canastota Central School District in 2010. Compl. ¶ 9. Until her resignation, Pistello enjoyed positive performance reviews and helped her students achieve successful outcomes on the New York State Regents Exam. Id.

         1. E-mail Exchange

         On November 6, 2014, Pistello sent an e-mail to June Clarke, the Canastota School District Superintendent. Id. ¶ 23. The e-mail discussed the district's failure to address scheduling issues that were affecting the special education students in Pistello's class. Id. In the e-mail, Pistello assessed the possible ramifications:

[I]n my 15-1 self contained English 11 class, I have three students who leave for BOCES [a career skills program] after only ten minutes of classtime. This happens daily. I don't see how anyone could expect these students to pass any Regents successfully since they are NEVER in class for an entire period. On each student's IEP [Individual Education Plan], it states that the student is scheduled for a 41 minute English class. This indicates that we-as a district-are not in compliance. If these students fail-as they all are now failing-their parents could sue the school district.

Dkt. No. 1-3 (“Exhibit C”) at 1-2. Pistello also informed Superintendent Clarke of her frustration with the situation and suggested that the scheduling issue was “a direct attack on [her] to sully [her] reputation.” Id.

         Clarke responded the next day, reassuring Pistello that the students' schedules would be fixed and inviting her to a meeting on November 13, 2015, with Clarke and Carolyn Rose, the Director of Special Education. Id. at 1. Rose reached out to Pistello on December 18, 2014, via e- mail. Dkt. No. 1-4 (“Exhibit D”). Rose's e-mail discussed Pistello's alleged failure to raise the scheduling issues with Rose as well as problems regarding attempts to set up a time for classroom observations. Id. at 1. Rose directed Pistello to bring any IEP or special education issues to her attention and ended by stating, “If my directive is not followed, I will have no other recourse but to pursue formal administrative action.” Id. The following day, Pistello responded by staying that she was “disturbed” that Rose would threaten her and attempt to paint her in a negative light. Id. at 2.

         2. Annual Professional Performance Review (“APPR”)

         Pistello was informed that Rose would be conducting Pistello's APPR.[1] Compl. ¶ 33. Pistello objected to her appointment; however, Rose conducted the APPR. Id. ¶ 35. Although Pistello had used the same lesson in previous evaluations and received high scores, she was unsatisfied by Rose's evaluations. Id. ¶ 36. After Rose's APPR was made available, Pistello-through her attorney-challenged the review, citing numerous inaccuracies as well as abnormally low scores. Id. ¶ 37-38. This challenge was successful, and the School District changed the review to classify Pistello as “Highly Effective.” Id. ¶ 38.

         3. Regents Examination Grading

         Pistello had previously graded and conducted review classes for the New York State English Regents Examination, which is administered in January. Id. ¶ 27. But Pistello was not asked by the administration to grade the January 2015 Regents Exam. Id. ¶ 28. Pistello sought an explanation from Assistant Principal Christopher Rogers, who “belittled her for making inquiries” and did not give a reason for leaving Pistello out of the exam grading. Id.

         4. Notices

         On January 26, 2015, Pistello received a notice requiring her to attend a meeting to discuss her allegedly unprofessional and inappropriate behavior. Id. ¶ 29. She received a similar notice on February 25. Id. Pistello characterizes these notices as “letters of reprimand.” Dkt. No. 14 (“Plaintiff's Memorandum”) at 12. There are no facts alleged to suggest these letters held weight other than to request Pistello's presence at these meetings. After seeking the aid of an attorney, these “letters of reprimand” were ultimately removed from Pistello's personnel file.[2] Id. The Complaint does not discuss what happened at these meetings.

         In addition to the notice issued to Pistello on February 25, the administration sent her a memorandum that Pistello characterizes as “disciplinary in nature.” Compl. ¶ 31. Pistello states that she was required to work through her attorney to change its language, but that the memo, which still contains inaccurate statements, remains in her personnel file. Id. ¶ 32; Pl.'s Mem. at 12-13.

         5. Meetings with Rogers and the Sexual Harassment Report

         On February 4, 2015, Pistello gave a student, D.J., detention for acting inappropriately in her classroom and for skipping a previously assigned detention. Compl. ¶ 12. Later that day, Pistello was informed that D.J. had told a female student that Pistello could “suck [his] d...” and that he would not comply with her detention. Id. Pistello filed a disciplinary incident report and, accompanied by another employee, sought out Rogers to discuss the incident. Id. ¶ 13; Dkt. No. 1-1 (“Exhibit A”) ¶ 28.

         During the meeting, Rogers suggested that the school set up another meeting with Pistello, the school guidance counselor, himself, and D.J. Ex. A, Ex., at 4. Although Pistello did not want to attend, Rogers insisted. Id. Prior to this meeting, Pistello once again punished D.J. for an unrelated incident. Id. This prompted Rogers to call Pistello into his office. Id.

         During this second meeting, [3] Rogers shouted and acted in a hostile manner. Compl. ¶ 13. Rogers, in response to the sexual comment made by D.J., said to Pistello: “Like no one has ever said that to you before.” Id. ¶ 15. Pistello responded that no one ever had, to which Rogers replied “Oh, come on-I find that hard to believe that has never been said to you before.”Id. ¶ 15; Ex. A, Ex., at 3. Judy Balducci-Pistello's mother, who was also an employee of the school district-overheard the altercation through Rogers's partially closed office door. Ex. A, Ex., at 3.

         Pistello filed a sexual harassment report with the school district on February 27, 2015, concerning Rogers's statements during the second meeting. Dkt. No. 1-2 (“Exhibit B”) at 1-2. Jason Mitchell, the school district's compliance officer, found the statements “inappropriate, ” but stated that they did not constitute sexual harassment. Compl. ¶ 18. Pistello appealed Mitchell's decision and the school board affirmed Mitchell's findings. Id. ¶ 19.

         6. Targeting Pistello's Son

         Finally, Mitchell took Pistello's son into Rogers's office and “questioned” him about his interactions with a female student over Snapchat. Id. ¶¶ 42-43. Pistello claims her son does not have a Snapchat, and that the interaction between her son and Mitchell was pretext for getting back at Pistello. Id. ¶¶ 43-44.

         7. Middle School Transfer and Resignation

         On June 12, 2015, Pistello learned that she was being transferred to the School District's middle school, where she would teach math and reading. Id. ¶ 39. After Pistello raised the objection that she was not certified to teach either middle school math or reading, the district informed her on July 16, 2015, that the teaching assignment would be limited to middle school reading. Id. ¶ 40. Her new classroom was “not set-up and . . . a mess, ” and was located across the hallway from Rose. Id. ¶ 41.

         In August 2015, Pistello resigned from her position with the Canastota School District and took a new job in the Syracuse City School District. Id. ¶ 45.

         B. Pistello's Complaint

         Pistello asserts that the acts described above, including Rogers's comments, the two notices, the disciplinary memorandum, the assignment of Rose to conduct Pistello's APPR, not being asked to grade the Regents Exam, Mitchell's meeting with Pistello's son, and, ultimately, the transfer to the middle school, created a hostile work environment because of her gender in violation of Title VII and the Equal Protection Clause. Id. ¶¶ 70-72, 83-84. Pistello also claims those same acts violated Title VII because they were taken in retaliation for her filing the sexual harassment report. Id. ¶¶ 76-79.

         Pistello also claims that her advocacy on behalf of her students with IEPs affords her protection under the ADA and RA. Id. ¶ 61. She alleges that, because of her advocacy, she suffered both a retaliatory hostile work environment and per se adverse employment actions. Id. ¶¶ 47-50, 56-59.

         Finally, Pistello asserts that she is protected by a whistleblower provision in the New York Education Law for suggesting that the failure to follow IEPs could open up the School District to future lawsuits. Id. ¶¶ 88-91.

         C. School District's Motion for Judgment ...

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