United States District Court, S.D. New York
MEMORANDUM & ORDER
J. NATHAN United States District Judge.
Miriam Alejandro brings this action against her former
employer the New York City Department of Education (the
"DOE") and Principal Emmanuel Polanco in his
individual capacity (together with the DOE,
"Defendants"). Alejandro alleges that Defendants
(i) discriminated against her on the basis of sex, age, and
disabilities associated with dyslexia and human
immunodeficiency virus ("HIV"), (ii) impermissibly
refused to grant her requested medical leave, and (iii)
retaliated against her for complaining of the alleged
discrimination and for submitting leave requests, including
by suspending her without pay on several occasions and
ultimately terminating her employment. Alejandro asserts
claims under Title VII of the Civil Rights Act of 1964
("Title VII"), 42 U.S.C. § 2000e, et
seq.; the Age Discrimination in Employment Act of 1967
("ADEA"), 29 U.S.C. § 621, et seq.;
the Americans with Disabilities Act of 1990
("ADA"), 42 U.S.C. § 12101, et seq.,
as amended in 2008; the Family Medical Leave Act of 1993
("FMLA"), 29 U.S.C. § 2601 et seq.;
and the New York City Human Rights Law ("NYCHRL"),
N.Y.C. Admin. Code § 8-101, et seq. Before the
Court is Defendants' motion for summary judgment on all
claims. For the reasons set forth below, Defendants'
motion is GRANTED with respect to the federal claims, and the
Court declines to exercise supplemental jurisdiction over the
following is drawn from the parties' Local Rule 56.1
statements and evidentiary exhibits cited therein. As it must
at the summary judgment stage, the Court construes the
evidence in the light most favorable to Alejandro and draws
all reasonable inferences in her favor.
is an approximately 60-year-old woman who suffers from
dyslexia and has been HIV-positive since the late 1980s.
See Plaintiffs Response to Defendants' Local
Rule 56.1 Statement of Undisputed Material Facts and
Counterstatement of Facts, Dkt. No. 70 ("Pl.
Resp."), ¶¶ 50, 64-65, 121. Starting in
September 2007, Alejandro was employed by the DOE as a
"parent coordinator" assigned to Isobel Rooney
Middle School 80/J.H.S. 080 The Mosholu Parkway ("M.S.
80"). Id. ¶¶ 1, 9. For the first
several years of her tenure as a parent coordinator,
Alejandro served under Principal Lovey Mazique-Rivera.
Id. ¶¶ 76-84. During that time,
Alejandro's responsibilities included outreach to parents
in the community as part of an effort to ameliorate negative
public perceptions of M.S. 80 and facilitate enhanced
parental involvement, and she maintained a small office
within the school where she met with parents to address
concerns and answer questions. Id. ¶¶
77-79; Plaintiffs Ex. 1 (Miriam Alejandro Deposition
Transcript), Dkt. No. 71-1 ("Alejandro Dep."), at
27-31; Plaintiffs Ex. 5 (Affidavit of Miriam Alejandro, dated
April 8, 2013), Dkt. No. 71-5 ("April 2013 Alejandro
Aff") ¶ 5.
disclosed to Principal Mazique-Rivera during her initial job
interview that she was dyslexic, and advised that the
condition could cause "little problem[s]" with her
written work. Pl. Resp. ¶¶ 80-81; Alejandro Dep. at
40-41. In response, Rivera advised Alejandro that she would
make a notation in Alejandro's personnel file and speak
with the DOE to determine how to accommodate her condition.
Pl. Resp. ¶ 81; Alejandro Dep. at 40-41. Alejandro did
not disclose her HIV condition to Mazique-Rivera at any time.
Alejandro Dep. at 103. To accommodate her dyslexia, Alejandro
was ultimately permitted to use a device called a "phone
master" which, among other things, played back an audio
version of Alejandro's word-processed work and allowed
her to more effectively screen for typos and other errors.
Declaration of Miriam Alejandro, dated October 6, 2016, Dkt.
No. 72 ("Alejandro Dec") ¶ 2.
worked for Mazique-Rivera substantially without incident
through early 2012, and a March 2012 performance evaluation
for the 2011-12 school year described Alejandro as an
"excellent employee" who had "exceeded all of
[Mazique-Rivera's] expectations, " always
"rae[t] the needs of our parents and students, "
and generally gone "over and above her job description
to ensure that M.S. 80 ha[d] an environment conducive for
learning, student achievement, and parent
participation." Pl. Resp. ¶ 84; Plaintiffs' Ex.
4 (2011-12 Performance Evaluation), Dkt. No. 71-4.
Officially, the evaluation rated Alejandro's performance
as "Satisfactory." Id.
Alejandro's Revised Job Responsibilities For the 2012-13
April 2012, Defendant Polanco took over as the new principal
of M.S. 80. Pl. Resp. ¶ 12. At the outset of the
following school year, on approximately August 29, 2012,
Polanco orally advised Alejandro that she would no longer be
responsible for community outreach or for conducting meetings
with parents, as those tasks had been reassigned to two or
three newly hired "community coordinators" and/or
"community associates." Pl. Resp. ¶¶
66-67, 89; April 2013 Alejandro Aff ¶¶ 22-24;
Plaintiffs Ex. 6 (February 10, 2013 Letter from Alejandro to
Polanco), Dkt. No. 71-8, at 3. These new employees included,
at least initially, one to two females and one to two males,
all apparently in their 20s or 30s. Pl. Resp. ¶¶
65-67; April 2013 Alejandro Aff. ¶¶ 22-24;
Alejandro Dep. at 64; Plaintiffs Ex. 6 at 3. Polanco further
informed Alejandro that her desk had been relocated from her
small private office to M.S. 80's main office, and that
her tasks would now include, among other things, greeting and
directing parent visitors and maintaining a log of their
visits, answering phones, and assisting in the translation of
documents and parent-staff conversations. Pl. Resp. ¶
89; Plaintiffs Ex. 6 at 3; Plaintiffs Ex. 7 (August 31, 2013
E-mail from Alejandro to Polanco), Dkt. No. 71-9; Plaintiffs
Ex. 23 (Affidavit of Miriam Alejandro, dated August 23,
2013), Dkt. No. 71-25 ("August 2013 Alejandro Aff")
¶ 4. Two days later, Alejandro sent Polanco an e-mail
confirming her understanding of these new responsibilities.
Plaintiffs Ex. 7.
weeks later, on approximately September 19, 2012, Polanco
held a meeting with Alejandro and provided her with a formal
written description of her role as parent coordinator for the
2012-13 school year, which Alejandro acknowledged in writing.
Pl. Resp. ¶¶ 16-17, 91; Defendants' Ex. G
(Parent Coordinator Job Description), Dkt. No. 58-7;
Alejandro Dep. at 78-80. That document set forth a list of
tasks for Alejandro to carry out during the school year,
including: developing and submitting a plan to increase
parental engagement, preparing a monthly newsletter for
distribution to parents, scheduling and organizing certain
computer-based platform training for parents, maintaining
parental sign-in sheets and a log of parental contacts,
organizing parent-student trips, responding to parents'
inquiries, visiting parents new to the community, conducting
a monthly meeting for all parents, and recruiting parent
volunteers to participate in school activities.
Defendants' Ex. G. During the course of that meeting,
Alejandro advised Polanco of her dyslexia and suggested that
it would be difficult for her to prepare regular newsletters.
Alejandro Dep. at 149. Nothing in the record suggests that
Alejandro disclosed her HIV status to Polanco at that time.
the meeting, Alejandro's understanding was that, moving
forward, she would perform the tasks identified in the
written job description while continuing to maintain
responsibility for answering phones and performing the other
clerical tasks that Polanco had orally assigned in late
August. Pl. Resp. ¶¶ 16-18, 90-91, 95; Alejandro
Dep. at 79-81. Alejandro encountered difficulty performing
all of these assignments in a timely manner and, on at least
one occasion, e-mailed Polanco to request one hour of
compensatory time per day to aid her in keeping parent
visitor logs up to date while still executing her office
management responsibilities. Polanco denied that request. Pl.
Resp. ¶¶ 90, 95-96; Alejandro Dep. 79-81;
Plaintiffs Ex. 8 (October 24, 2012 E-mail from Alejandro to
Polanco), Dkt. No. 71-10; Plaintiffs Ex. 9 (October 24, 2012
E-mail from Polanco to Alejandro), Dkt. No. 71-11.
Alejandro's Attendance Record, First Suspension, and OEO
M.S. 80 School Staff Handbook, a copy of which Alejandro
received in September 2012, stated that it would be
"considered excessive" for any employee to be
absent for six or more days prior to January 31 and that such
conduct could "result in a warning letter."
Defendants' Ex. H (M.S. Staff Handbook), Dkt. Nos.
58-8-58-10; Pl. Resp. ¶ 19; Alejandro Dep. at 121. By
the end of December 2012, Alejandro had already been absent
on seven occasions, and, on January 4, 2013, Polanco notified
Alejandro in writing that he had scheduled a disciplinary
conference on January 9, 2013 to discuss her "attendance
and performance." Defendants' Ex. I (January 4, 2013
Letter from Polanco to Alejandro), Dkt. No. 58-11;
Defendants' Ex. J (January 4, 2013 Letter from Polanco to
Alejandro), Dkt. No. 58-12; Pl. Resp. ¶¶ 21-22.
Alejandro failed to attend the January 9 conference and two
additional conferences rescheduled by Polanco for January 11
and January 16, 2013, respectively. Pl. Resp. ¶¶
21-25; Defendants' Ex. L (January 2013 Suspension Letter
from Polanco to Alejandro). Alejandro attributes her failure
to attend these conferences to her union representative's
inability to participate on two of the dates and to her own
need to visit a terminally ill nephew in North Carolina - and
thus miss work - for a period of time encompassing the third
date. The record reflects that each of these issues was
contemporaneously documented in correspondence from Alejandro
and/or her union representative to Polanco. There is no
evidence that Polanco responded in writing to these messages,
although he did deny Alejandro's short-notice request for
personal days to visit her nephew.
the third scheduled conference failed to go forward on
January 16, 2013 Polanco e-mailed Alejandro to advise her
that he would be "forced to make a determination without
[her] input." Plaintiffs Ex. 18 (January 16, 2013 E-mail
from Polanco to Alejandro), Dkt. No. 71-20. Subsequently,
Polanco issued Alejandro a formal letter suspending her for
one week without pay starting on January 22, 2013.
Defendant's Ex. L (January 2013 Letter from Polanco to
Alejandro), Dkt. No. 58-14. As the basis for the suspension,
Polanco cited: (i) Alejandro's nine absences to date
(including two days taken without permission in mid-January
to visit her ill nephew); (ii) Alejandro's purported
"pattern" of extending weekends and otherwise
taking consecutive days off; (iii) her failure on certain
occasions to comply with the M.S. 80's policy requiring
requests for personal days at least one week in advance; (iv)
her absence on a day for which she had been denied a
floating holiday; and (v) her failure to attend the three
scheduled disciplinary conferences in January. Id.
Polanco subsequently confirmed during deposition that it was
a "combination" of attendance-related issues that
precipitated Alejandro's suspension, including not only
the absolute number of absences but also her failure to
follow policy with respect to requesting personal days and
her perceived "resistance" to attending the
scheduled disciplinary conference. Plaintiffs Ex. 2 (Emmanuel
Polanco Deposition Transcript), Dkt. No. 71-2 ("Polanco
Dep."), at 265-67. Polanco also testified that while no
employees other than Alejandro were suspended based on their
attendance record during the first half of the 2012-13 school
year, approximately five others were "disciplined"
in some way. Id. at 178.
her suspension, in late January or early February 2013,
Alejandro filed an online complaint against Polanco with
DOE's Office of Equal Opportunity & Diversity
Management ("OEO"), alleging age discrimination,
sex discrimination, and retaliation. Plaintiffs Ex. 25
(Correspondence between Alejandro and OEO), Dkt. No. 71-29.
In a letter in support of her complaint dated January 22,
2013, Alejandro, among other things, recounted many of the
events set forth above and asserted that Polanco had
effectively "replaced" many of Alejandro's
responsibilities as parent coordinator "with more school
secretary's responsibilities" and had denied a
request for compensatory time to complete her newly assigned
tasks. Id. She also noted that Polanco
"constantly accuse[d] [her] of going against his
directives or interests, " and described several
incidents in which Polanco had allegedly expressed the view
that Alejandro had not timely completed certain assignments,
had submitted work reflecting grammatical errors, or had
handled an interaction with a parent in some unfavorable way.
February 7, 2013, OEO responded to Alejandro, stating that it
would not investigate the retaliation complaint, which it
viewed as premature, but inviting Alejandro to contact the
assigned OEO officer to schedule an interview to discuss her
discrimination complaints. Id. On February 12, 2013,
OEO interviewed Alejandro. Defendants' Ex. EE (February
26, 2013 Letter From OEO to Alejandro), Dkt. No. 58-33. In a
letter dated February 26, 2013, OEO notified Alejandro that
it was administratively closing her case and taking no
further action based on her failure to identify any comments
by Polanco as to Alejandro's age or sex, any express
indication that Polanco had hired certain people to assume
responsibilities previously assigned to Alejandro because
they were younger than she was, or any specific examples of
Polanco treating females differently than he treated males.
Alejandro's Performance Record and Second
January 16, 2013, the same day on which Polanco e-mailed
Alejandro to note that he would have to make a disciplinary
determination regarding her attendance issues without her
input, he also sent her a separate letter advising that he
had scheduled another disciplinary conference to discuss her
"performance" on January 22, 2013 - the date that
would ultimately constitute the first day of her initial
unpaid suspension. Pl.. Resp. ¶¶ 27, 112;
Plaintiffs Ex. 19 (January 16, 2013 Letter from Polanco to
Alejandro), Dkt. No. 71-21. On January 23, 2013, the second
day of Alejandro's suspension, Polanco sent her another
letter rescheduling the disciplinary conference for January
30, 2013, the day after her return from suspension. Pl. Resp.
¶¶27, 113; Plaintiffs Ex. 20 (January 23, 2013
Letter from Polanco to Alejandro), Dkt. No. 71-22. According
to Alejandro, she and union representatives attempted to meet
with Polanco on February 1, 2013, but Polanco refused. Pl.
Resp. ¶ 114; Alejandro April 2013 Aff. ¶ 41. In any
event, the conference was subsequently rescheduled yet again
and ultimately went forward on February 5, 2013. Pl. Resp.
¶ 115; Defendants' Ex. N (February 2013 Suspension
Letter from Polanco to Alejandro), Dkt. No. 58-16.
attended the February 5 conference with two union
representatives, and Polanco attended with M.S. 80's
Assistant Principal, Ricardo Irizarry, who served as note
taker. Pl. Resp. ¶ 115; Defendants' Ex. N. During
the conference, the participants discussed Alejandro's
performance of the tasks set forth on the job description
document that Alejandro received from Polanco in late
September 2013. Pl. Resp. ¶ 115; Defendants' Ex. N.
Polanco expressed the view that Alejandro's performance
on several such tasks had been inadequate. Pl. Resp. ¶
115. According to Alejandro, she advised Polanco again during
the February 5 conference that her dyslexia made it difficult
for her to accurately complete certain written assignments
and requested that Polanco designate another staff member to
assist in reviewing her work and fixing any errors. Alejandro
Dep. at 191-92.
after the February 5 conference, Polanco issued a letter to
Alejandro based on the substance of their discussion. In the
letter, Polanco listed fourteen of the fifteen individual
tasks appearing on Alejandro's September 2013 job
description, set forth his determination as to whether and to
what extent Alejandro had met expectations with respect to
each task, and then described the rationale for the
individual determinations, including by recounting
Alejandro's responses during the conference to
Polanco's questions on the relevant subject.
Defendants' Ex. N. In total, Polanco determined,
according to the letter, that Alejandro had either failed to
complete, inadequately completed, or completed in a
delinquent manner the following thirteen tasks:
• Maintain a satisfactory record of attendance and
punctuality (Inadequately Completed);
• Submit a plan to increase parent engagement to the
principal by September 24, 2012 (Completed
• Prepare monthly parent newsletters to be sent home
with students, mailed out, and emailed when possible. First
one should be sent out by September 21st. The
newsletters for the following months should be sent out by
the end of the 1st Friday of every month
(Not Completed in Part and Otherwise Completed
• Schedule and organize ARIS Parent Link training for
all parents by December 1st (Inadequately
• Keep a log with all parental contacts made. It should
be updated daily and be readily available anytime.
• Schedule and Coordinate vote for PA President for
Wednesday, September 26th (Completed
• Collect accurate contact numbers for all parents and
ensure that it is updated on ATS (Inadequately
• Ensure that translation is done for all parent
communications sent (Inadequately
• Create Sign-in sheets for all parent activities
• Recruit parent volunteers for the purpose of assisting
the school in its activities (Inadequately
• Conduct a monthly parent meeting for all parents
• Organize three parent-student trips for the academic
year (Not Completed);
• Respond to inquiries (e.g., community programs,
assistance, etc.) for the purpose of providing information
and/or direction (Inadequately Completed).
on these purported shortcomings in her professional
performance, Polanco's letter advised, Alejandro would be
suspended without pay for an additional two weeks, starting
on February 11, 2013. Id. Polanco also placed
Alejandro on notice that if she continued to "neglect
[her] duties and engage in a pattern of incompetent services,
" she would be suspended without pay for a longer period
of time or terminated. Id.
received Polanco's letter on February 8, 2017. Plaintiffs
Ex. 6. Two days later, she responded with a lengthy letter of
her own, accusing Polanco of attempting to "eliminate
[her] employment at M.S. 80 ... through intimidation,
fabrication of allegations that are untrue and decepti[ve],
" and "harassment." Id. In her
letter, Alejandro purported to refute many of the charges
that Polanco set forth in his letter, at times referring to
attached documentary evidence in support of several of her
positions. Among other things, Alejandro emphasized that,
despite Polanco's suggestions that Alejandro alone was
responsible for the multiple reschedulings of her
disciplinary conferences in January 2013, much of the
scheduling difficulty in was in fact attributable to
Polanco's failure to communicate effectively with
Alejandro's union representatives. Id. She also
argued at length that her double slate of assignments (the
office management work orally assigned in August 2013 and the
more traditional parent coordinator tasks listed on the
September 2013 job description) made it all but impossible
for her to effectively discharge the parent coordinator
responsibilities discussed in Polanco's letter.
Id. Finally, Alejandro denied that many of the
assignments referenced in Polanco's letter had been
submitted late or otherwise completed inadequately.
Id. She cited specific examples of project drafts
(such as the parental engagement plan) that she had submitted
in advance of Polanco's deadline but for which she had
then received no feedback or acknowledgement until after the
relevant deadline had passed. Id. She also explained
that other projects (such as the monthly newsletter) were
completed late largely because Polanco himself failed to
timely provide the necessary approvals. Id.
Alejandro further noted that other tasks (such as translation
of staff-parent communications) could not be completed
because Polanco had not approved the funding required by DOE
translation personnel, despite indicating that he would do
so. In addition, certain projects (such as conducting monthly
parent meetings and recruiting parent volunteers to assist in
school activities) were, according to Alejandro, impossible
to accomplish because Polanco had declined to approve funding
for certain training that Alejandro believed was necessary or
because Polanco had specifically instructed Alejandro never
to leave the main office other than to take lunch or use the
the reasons why, Alejandro confirmed at deposition that she
did not perform at least some of the tasks appearing on the
September 2013 job description during the 2012-13 school
year. See, e.g., Alejandro Dep. at 83-87, 237-244
(testifying that she did not, for example, hold monthly
parent meetings, did not plan parent-student trips, did not
consistently distribute monthly newsletters, did not log all
telephone-based or in-person communications with parents, and
failed to ensure translation of parent communications into
languages other than English).
to Alejandro, following her return from the February 2013
suspension, a member of M.S. 80's secretarial staff with
whom Alejandro shared an office (Ms. Hughes) started to
review her written work, with Polanco's knowledge,
permission, and encouragement. Alejandro Dep. at 112-113,
191-92. The arrangement was consistent with an agreement that
Alejandro and Polanco reached during the February 5
conference. Id. at 112-13.
March 21, 2013, Polanco convened yet another disciplinary
conference with Alejandro and her union representatives, the
stated purpose of which was to "discuss a pattern of
insubordination" by Alejandro. Pl. Resp. ¶ 32-33;
Defendants' Ex. O (April 14, 2013 Letter from Polanco to
Alejandro), Dkt. No. 58-17. Several weeks later, on April 14,
2013, Polanco issued a letter setting forth his decision to
once again suspend Alejandro without pay for two weeks,
starting on April 18, 2013. Id. As the basis for the
suspension, Polanco identified an incident in mid-March 2013
in which Alejandro purportedly distributed flyers to students
and parents which had not been approved by Polanco - a
violation of school policy as reflected M.S. 80's Staff
Handbook - and which reflected a "typo/misspelling that.
. . reflect[ed] negatively on our professional
community." Defendants' Ex. O. Polanco noted in the
letter Alejandro had posted enlarged copies of the offending
flyer "all over the school walls, " and then failed
to remove them despite Polanco's express instruction to
do so. Id. Polanco further stated that he had
previously warned Alejandro about disseminating unapproved
documents to students and parents. Id.
also included in his letter copies of mid-March email
correspondence between Alejandro and Polanco, in which
Polanco cited concerns over typos and grammatical and
spelling errors regularly reflected in Alejandro's
written work more generally (including newsletters,
calendars, and workshop flyers). Id. Polanco
referenced the agreement the two had reached during the
February 2013 disciplinary conference by which Alejandro
would arrange for a colleague to proofread her written work
prior to submission, urged her to adhere to that practice
more consistently, and noted that while mistakes were
understandable, she had failed to seek out the necessary
support. Id. Polanco concluded his letter by
expressly putting Alejandro on notice that if her purportedly
"insubordinate and unprofessional conduct" were to
continue, he would "have no choice but to terminate
[her] employment." Id.
testified at deposition that she distributed and posted the
flyers in question because their content derived from a
notice issued by the Chancellor of the DOE, she believed it
was a parent coordinator's responsibility to distribute
Chancellor notices in a timely manner, and she had been
unable to reach Polanco to secure sign-off. Alejandro Dep. at
129, 150-51; Pl. Resp.¶¶ 33-36.
did not deny the recurrence of typographical and other errors
appearing in her written work. She testified, in fact, that
Polanco raised the issue with her on a few occasions and in
one meeting criticized Alejandro in insulting terms over one
particular error, telling her that a "third grader"
could do the relevant task properly and stating, "You
can't read." See, e.g., Alejandro Dep. at
148. According to Alejandro, she responded by reminding
Polanco of her dyslexia and emphasizing that she tended to
make more mistakes under stressful conditions. Id.
EEOC Discrimination Charge and Cease-and-Desist
April 10, 2013, Alejandro filed a charge of discrimination
with the Equal Employment Opportunity Commission, alleging
age and sex discrimination and interference with
Alejandro's rights under the FMLA, the ADEA, Title VII,
the NYCHRL, and the New York State Human Rights Law. Pl.