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Busby v. Syracuse City School District

United States District Court, N.D. New York

April 17, 2017

PAMELA BUSBY, Plaintiff,


          Lawrence E. Kahn U.S. District Judge


         Plaintiff Pamela Busby commenced this action against defendant Syracuse City School District, alleging unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Dkt. No. 1 (“Complaint”); Dkt. No. 9 (“Amended Complaint”). Presently before the Court is the District’s Motion for Summary Judgment. Dkt. No. 31 (“Motion”); see also Dkt. No. 31-1 (“Attorney Affirmation”); Dkt. No. 31-2 (“Reeve-Larham Affidavit”); Dkt. No. 31-3 (“Defendant’s Statement of Material Facts”); Dkt. No. 31-4 (“Memorandum”). For the reasons that follow, the District’s Motion is granted.


         A. Factual History

         Busby is an African American female, Mem. at 13, who resides in Syracuse, New York, Attorney Affirmation, Ex. H (“Busby Deposition”) at 10:2–3. Busby began working for the District as a school monitor in September 1989. Am. Compl. at 4;[1] Reeve-Larham Aff. ¶ 3. She resigned from her employment effective July 1, 2016. Reeve-Larham Aff. ¶ 3. While employed by the District, Busby was a member of a collective bargaining unit represented by the Syracuse Teachers Association, Incorporated, Unit 8 (the “Union”). Id. ¶ 4. Busby was assigned to various school buildings during her employment. Id. ¶ 8. She was assigned to the District’s McKinley-Brighton Elementary School for the 2013–2014 school year, replacing former school monitor Ronald Beebe. Am. Compl. at 4–5; Reeve-Larham Aff. ¶¶ 10–11. At McKinley-Brighton, Busby was stationed by the school’s main entrance, and her responsibilities included placing traffic cones in front of the school when busses picked up and dropped off students, signing in visitors and ensuring that they did not wander the school unaccompanied, conducting building door checks, assisting with and intervening in issues occurring near the main entrance, and providing security and support for staff and students. Reeve-Larham Aff. ¶ 14, Ex. F. While Busby was assigned to McKinley-Brighton, Amanda Williams was the school’s principal and Carin Reeve-Larham was its vice-principal. Am. Compl. at 4; Reeve-Larham Aff. ¶¶ 1, 30.

         During the 2013–2014 school year, Busby had multiple conversations and counseling sessions with Reeve-Larham regarding her job performance. Reeve-Larham Aff. ¶¶ 16–42. On September 19, 2013, Reeve-Larham provided Busby a written counseling memorandum regarding her personal cell phone usage while on duty. Id. ¶ 17, Ex. D (“September 19 Counseling Memorandum”); see also Busby Dep. at 81:8–82:8 (discussing the September 19 Counseling Memorandum). According to the September 19 Counseling Memorandum, Reeve-Larham spoke to Busby at least four times in September 2013 regarding her cell phone usage while on duty. Sept. 19 Counseling Mem. The September 19 Counseling Memorandum is consistent with the District’s policy titled “Telephone Service and Use Including Cell Phones and Personal Electronic Devices,” which prohibits personal cell phone usage by District employees while on duty. Reeve-Larham Aff. Ex. E.

         On October 18, 2013, Reeve-Larham issued a second counseling memorandum to Busby regarding her cell phone usage, extended lunch breaks, and District requirements regarding confidentiality. Reeve-Larham Aff. Ex. G (“October 18 Counseling Memorandum”). In the October 18 Counseling Memorandum, Reeve-Larham memorialized reports she had received that Busby had violated confidentiality by “speaking in detail about issues related to children and staff from McKinley-Brighton.” Id. The October 18 Counseling Memorandum also noted that Busby had again been observed using her cell phone while on duty. Id.

         On April 10, 2014, Busby received a third counseling memorandum regarding two separate incidents. Reeve-Larham Aff. ¶ 30, Ex. H (“April 10 Counseling Memorandum”) at 1. The first incident occurred on April 9, 2014, and concerned a non-verbal special-needs student who “broke free from his 1:1 teaching assistant during transition and ran toward the main entrance door of the school.” Apr. 10 Counseling Mem. at 1. Busby did not intervene to prevent the student from leaving the building. Id.; Busby Dep. 22:21–23:2. The second incident, which occurred on April 10, 2014, involved Busby’s failure to prevent a different student from running out of the school’s main entrance. Reeve-Larham Aff. ¶¶ 28–29; Apr. 10 Counseling Mem. at 1; Busby Dep. at 65:15–68:24. Busby received an additional counseling memorandum on April 10, 2014 concerning her adherence to McKinley-Brighton’s guest sign-in policy, placement of traffic cones, and continued cell phone usage while on duty. Reeve-Larham Aff. ¶ 32, Ex. I.

         On June 6, 2014, Busby received a fifth counseling memorandum regarding an incident that occurred on June 5, 2014. Reeve-Larham Aff. Ex. J (“June 5 Counseling Memorandum”). On June 5, Busby received a report that a student had left his classroom and was “running around the building.” Busby Dep. at 73:7–8. After searching the school, Busby was unable to locate the missing student. Id. at 73:13–16; Reeve-Larham Aff. ¶ 36. If a missing student cannot be located, McKinley-Brighton protocol required a school monitor to “immediately notif[y]” school administrators. Reeve-Larham Aff. ¶ 37. Yet Busby did not notify any school administrator that she was unable to locate the missing student on June 5. Id. ¶ 38; June 5 Counseling Mem. at 1; Busby Dep. at 73:17–20, 76:24–77:6. At the time, Busby explained that she “did not know” that she was required to notify an administrator when she was unable to locate a missing student. June 5 Counseling Mem. at 1. Reeve-Larham learned that the missing student had left the school only when the student’s grandfather returned him to the building. Id.; Reeve-Larham Aff. ¶ 38. Following the June 5 incident, Reeve-Larham referred Busby to the District’s Office of Talent Management “for review” and “to discuss ongoing concerns with [Busby’s] job performance.” June 5 Counseling Mem. at 2; Reeve-Larham Aff. ¶ 41.

         On June 25, 2014, Plaintiff and her Union representative met with District personnel to discuss ongoing concerns with her job performance. Reeve-Larham Aff. ¶ 42. On September 11, 2014, District Director of Staff Relations Joshua Beardall notified Busby that her employment with the District was being terminated because of her “continued failure to perform the duties of [her] job, resulting in unsafe situations for students.” Reeve-Larham Aff. ¶ 43, Ex. K (“September 11 Letter”); Busby Dep. 103:2–9. The Union filed a grievance with the District contesting Busby’s termination, which was denied and pursued to arbitration. Busby Dep. at 103:16–21; Reeve-Larham Aff. ¶ 47. On October 14, 2014, the New York State Public Employment Relations Board appointed Ronald Kowalski to serve as arbitrator of Busby’s grievance. Reeve-Larham Aff. ¶ 48, Ex. L. Both Busby and the District were represented by counsel at the arbitration, which occurred on January 22, 2015. Reeve-Larham Aff. ¶ 48, Ex. M (“Arbitration Order”) at 1; Busby Dep. at 103:24–104:11. Counsel for Busby and the District presented witnesses and documentary evidence to the Arbitrator. Busby Dep. at 104:20–25. Plaintiff and Defendant also stipulated to the following statement of issue for the Arbitrator: (1) “Was the District’s termination of Ms. Busby an unreasonable or arbitrary exercise of management’s rights, as described in Article 4 of the parties’ collective bargaining agreement?” and (2) “Should the burden of proof, as set forth in Article 18.A. be sustained by the employee, what shall the penalty be, if any?” Arbitration Order at 2.

         The Arbitrator issued an opinion and award on March 16, 2015. Arbitration Order. The Arbitrator concluded that the April 9, April 10, and June 5 incidents “represent[ed] some misconduct [by Busby] by way of a lack of performance of the duties of her position.” Id. at 11; see also Busby Dep. at 106:25–107:5 (discussing the Arbitration Order). Specifically, the Arbitrator concluded that during the April 9 incident, Busby “did not get up and attempt to assist in preventing the student from leaving the building,” and that she “should have acted to at least assist . . . as that is one of her duties.” Arbitration Order at 9. Regarding the April 10 incident, the Arbitrator found that Busby was “not being proactive with respect to a student leaving the building” and that she “should have also made every effort to stop the student even though the event happened quickly.” Id. at 9–10. Finally, with respect to the June 5 incident, the Arbitrator determined that Busby did not report the missing student to any administrator after unsuccessfully searching for him in the school. Id. at 10. Due to Busby’s “misconduct by way of a lack of performance of the duties of her position,” the Arbitrator determined that the District was justified in penalizing her. Id. at 11. But the Arbitrator determined that termination was too severe in light of Busby’s “long work record with the District” and because the misconduct did “not rise to the level of something approaching gross incompetence.” Id. Therefore, the Arbitrator ordered Busby reinstated, “but without back pay.” Id.[2] Busby returned to work for the District as a monitor on March 23, 2015, and was assigned to Clary Middle School. Busby Dep. at 107:21–108:11; Reeve-Larham Aff. ¶ 57.

         On October 3, 2014, Busby filed a verified complaint with the New York State Division of Human Rights alleging that Reeve-Larham and the District discriminated against her on the basis of race, color, and gender. Reeve-Larham Aff. Ex. N (“New York Complaint”); Busby Dep. 113:16–114:2. Busby’s New York Complaint was also filed with the federal Equal Employment Opportunity Commission (“EEOC”). Reeve-Larham Aff. ¶ 59, Ex. P (“EEOC Order”). On March 26, 2015, the Human Rights Division determined that there was “no probable cause to believe that [Reeve-Larham and the District] engaged in . . . the unlawful discriminatory practice” alleged by Busby and reported that its “[i]nvestigation did not show that [Busby] was denied equal terms, conditions and privileges of employment due to her race/color, sex and/or opposition to discrimination/retaliation.” Reeve-Larham Aff. Ex. O, at 1. The Human Rights Division concluded that “[t]here was no nexus established between [Busby’s] race/color or sex and the progressive disciplinary process” she had faced and therefore dismissed the New York Complaint. Id. On May 20, 2015, the EEOC adopted the Human Rights Division’s findings and dismissed Busby’s complaint. EEOC Order.

         B. ...

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