United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
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
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; 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.
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.
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.
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.
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.
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
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. 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.
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.