United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
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.
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.
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
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]
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.
Annual Professional Performance Review
was informed that Rose would be conducting Pistello's
APPR. 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.
Regents Examination Grading
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.
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. Id. The Complaint does not
discuss what happened at these meetings.
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
Meetings with Rogers and the Sexual Harassment Report
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.
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.
this second meeting,  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.
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.
Targeting Pistello's Son
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. ¶¶
Middle School Transfer and Resignation
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.
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.
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.
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.
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.
School District's Motion for Judgment ...