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Alejandro v. New York City Department of Education

United States District Court, S.D. New York

March 31, 2017

Miriam Alejandro, Plaintiff,
v.
New York City Department of Education and Emmanuel Polanco, Individually, Defendants.

          MEMORANDUM & ORDER

          ALISON J. NATHAN United States District Judge.

         Plaintiff 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 NYCHRL claims.

         I. Background

         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.

         Alejandro 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.

         Alejandro 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.

         Alejandro 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.

         A. Alejandro's Revised Job Responsibilities For the 2012-13 School Year

         In 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.

         Several 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.

         Following 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.

         B. Alejandro's Attendance Record, First Suspension, and OEO Complaint

         The 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.[1]

         After 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.

         Following 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. Id.

         On 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. Id.

         C. Alejandro's Performance Record and Second Suspension

         On 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.

         Alejandro 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.

         Shortly 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 Late)
• 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 Late);
• Schedule and organize ARIS Parent Link training for all parents by December 1st (Inadequately Completed);
• Keep a log with all parental contacts made. It should be updated daily and be readily available anytime. (Inadequately Completed);
• Schedule and Coordinate vote for PA President for Wednesday, September 26th (Completed Late);
• Collect accurate contact numbers for all parents and ensure that it is updated on ATS (Inadequately Completed);
• Ensure that translation is done for all parent communications sent (Inadequately Completed);
• Create Sign-in sheets for all parent activities (Inadequately Completed);
• Recruit parent volunteers for the purpose of assisting the school in its activities (Inadequately Completed);
• Conduct a monthly parent meeting for all parents (Inadequately Completed);
• 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).

         Based 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.

         Alejandro 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 restroom. Id.

         Whatever 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).

         D. Third Suspension

         According 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.

         On 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.

         Polanco 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.

         Alejandro 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.

         Alejandro 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.

         E. EEOC Discrimination Charge and Cease-and-Desist Letter

         On 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. ...


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