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Jones-Khan v. Westbury Board of Education-Westbury Union Free School District.

United States District Court, E.D. New York

April 25, 2017

GLORIA E. JONES-KHAN, Plaintiff,
v.
WESTBURY BOARD OF EDUCATION-WESTBURY UNION FREE SCHOOL DISTRICT, Defendant.

          For Plaintiff: Chauncey D. Henry, Esq. Henry Law.

          For Defendant: Adam I. Kleinberg, Esq. Melissa Lauren Holtzer, Esq. Sokoloff Stern LLP.

          MEMORANDUM & ORDER

          JOANNA SEYBERT, U.S.D.J.

         Plaintiff Gloria E. Jones-Khan (“Plaintiff”) commenced this action asserting claims pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act of 1967 (“ADEA”).[1] Presently pending before the Court is defendant Westbury Board of Education-Westbury Union Free School District's (“Defendant” or the “District”) motion for summary judgment. (Def.'s Mot., Docket Entry 49.) For the following reasons, Defendant's motion is GRANTED.

         Preliminarily, the Court addresses Plaintiff's proposed Rule 56.1 Counterstatement dated December 30, 2016, and filed in conjunction with her opposition to Defendant's motion (the “Counterstatement”). (Pl.'s 56.1 Counterstatement, Docket Entry 59.) The Court's consideration of this issue requires a brief procedural history. On January 26, 2016, Defendant filed a request for a pre-summary judgment motion conference and indicated that Plaintiff's counsel rejected its Local Rule 56.1 Statement as untimely and “confirmed that he does not intend to respond to defendant's 56.1 statement.” (Def.'s Jan. Ltr., Docket Entry 41.) On February 26, 2016, the Court conducted a pre-motion conference and indicated that a schedule for the filing of Plaintiff's Rule 56.1 Counterstatement and Defendant's summary judgment motion would be set following the resolution of discovery issues by Magistrate Judge Gary R. Brown. (Minute Entry, Docket Entry 44.)

         On July 8, 2016, Defendant filed a letter motion requesting that parties resume dispositive motion practice. (Def.'s July Ltr. Mot, Docket Entry 46.) On July 12, 2016, the Court granted Defendant's request and directed the parties to submit a briefing schedule. On August 31, 2016, the Court approved the parties' proposed briefing schedule and directed Plaintiff to file her Rule 56.1 Counterstatement on or before September 16, 2016. On September 29, 2016, Defendant advised the Court that Plaintiff failed to timely serve her Rule 56.1 Counterstatement and failed to request an extension from the Court, notwithstanding Defendant's consent to a brief extension. (Def.'s Sept. Ltr., Docket Entry 48.) Plaintiff failed to respond to Defendant's letter, and Defendant filed its motion for summary judgment on October 17, 2016. (See Def.'s Mot.)

         On November 29, 2016, Plaintiff requested an extension of time to oppose Defendant's motion and file her Rule 56.1 Counterstatement. (Pl.'s Ltr., Docket Entry 54.) On December 2, 2016, the Court granted Plaintiff's request for additional time to oppose Defendant's motion, but denied Plaintiff's request for an extension of time to serve her Rule 56.1 Counterstatement, noting that Plaintiff failed to timely request an extension. Nevertheless, on December 30, 2016, Plaintiff filed her Counterstatement. (Docket Entry 59.)

         Local Civil Rule 56.1 requires, inter alia, that: (1) the party moving for summary judgment submit a statement of undisputed material facts, and (2) the opposing party submit a corresponding statement responding to each paragraph in the moving party's statement. Local Rule 56.1(a)-(b). Where the non-movant fails to submit an appropriate counterstatement of material facts, “courts have deemed the moving party's statement of facts to be admitted and have granted summary judgment in favor of the moving party on the basis of uncontroverted facts.” D'Nelson v. Costco Wholesale Corp., No. 03-CV-0219, 2006 WL 767866, at *3 (E.D.N.Y. Mar. 24, 2006). While Plaintiff requests that the Court exercise its discretion to consider her Counterstatement, (Pl.'s Br., Docket Entry 58, at 3-4), the Court declines to do so in light of Plaintiff's failure to timely file her Counterstatement or request an extension of time and the Court's prior rejection of Plaintiff's request to file a late Counterstatement. Accordingly, the Court deems Defendant's Rule 56.1 Statement admitted.[2] Nevertheless, Defendant is not “absolve[d] . . . of the burden of showing that it is entitled to judgment as a matter of law, ” and “remains obligated to demonstrate that no genuine issue of material fact exists to warrant a trial.” D'Nelson, 2006 WL 767866, at *3 (internal quotation marks and citation omitted).

         BACKGROUND[3]

         Plaintiff is an African-American female who is currently sixty-nine years old. (Am. Compl. ¶ 8.) In 2003, Plaintiff was hired as a teacher's aide at the District's Middle School. (Def.'s 56.1 Stmt., Docket Entry 41-1 at 2-15, ¶¶ 21-22, 24, 26.) Plaintiff testified that in 2009 or 2010, she obtained a New York State “Truant License, ” which is also referred to as a “School Attendance Teacher” License. (Def.'s 56.1 Stmt. ¶¶ 8-9; Pl.'s Dep. Tr., Pl.'s Ex. M. Docket Entry 60-3, 8:12-21, 12:21-13-2.) Plaintiff does not possess other professional licenses or certifications. (Def.'s 56.1 Stmt. ¶ 10.)

         During Plaintiff's tenure as a teacher's aide, David Powell (“Powell”) served as the Principal of the Middle School. (Pl.'s Dep. Tr. 29:4-9.) Powell was terminated on August 31, 2010, after a New York Education Law § 3020-a hearing. (Def.'s 56.1 Stmt. ¶ 33.) Plaintiff testified that Powell was terminated after a teacher and guidance counselor complained that he sexually harassed them. (Def.'s 56.1 Stmt. ¶ 34.) Plaintiff alleged that she believed Powell was innocent and supported him by requesting that teachers provide “character letters” to Powell's attorney. (Def.'s 56.1 Stmt. ¶¶ 36-37.)

         Plaintiff testified that sometime after she received her Truant License, she spoke with the District's then-human resources manager about an available permanent substitute teacher position at the Middle School. (Def.'s 56.1 Stmt. ¶ 24; Pl.'s Dep. Tr. 23:2-24:22.) Plaintiff was selected for the position by former Middle School Principal Dennis Hinson (“Hinson”). (Def.'s 56.1 Stmt. ¶ 26.) Plaintiff testified that she started as a permanent substitute in or about 2010 or 2011. (Pl.'s Dep. Tr. 26:7-9.)

         In 2010, Plaintiff was formally evaluated by Hinson, Felicia Crawford (“Crawford”), who is African-American and serves as Assistant Principal at the Middle School, and Cassandra Spencer. (Def.'s 56.1 Stmt. ¶¶ 28, 52-53; Crawford's Dep. Tr., Def.'s Decl. Ex. I, Docket Entry 50-1 at 385-542, 12:18-13:2.) Crawford testified that they performed a formal performance evaluation to ensure that Plaintiff “understood that [administration] wanted her to work all on certain things, specifically, her language use in the classroom with students.” (Def.'s 56.1 Stmt. ¶ 54 (alteration in original).)

         In 2011, the District hired David Zimbler (“Zimbler”), a white male in his forties, as the Principal of the Middle School. (Def.'s 56.1 Stmt. ¶¶ 30-31; Pl.'s Dep. Tr. 29:14-17.) Plaintiff alleged that Zimbler made the working environment “uncomfortable” for faculty members who openly supported Powell and Zimbler made her “uncomfortable” by ignoring her in the hallways. (Pl.'s Dep. Tr. 91:20-92:11.) Zimbler testified that he was hired by the District after Powell's termination, he did not know why Powell was no longer employed by the District, and he was unaware that teachers prepared “character letters” for Powell. (Def.'s 56.1 Stmt. ¶¶ 38-41.) Crawford testified that she and Zimbler did not discuss the circumstances surrounding Powell's termination. (Def.'s 56.1 Stmt. ¶ 46.)

         In 2013, students complained to Zimbler about Plaintiff and reported that Plaintiff “called them stupid and dumb and stated that Hispanic kids always give [her] trouble in the classroom.” (Def.'s 56.1 Stmt. ¶¶ 57-58.) Plaintiff denied calling the students “stupid and dumb” but stated that she asked two Hispanic students “[w]hy don't you do like the other Hispanic kids and sit down and obey.”[4] (Def.'s 56.1 Stmt. ¶¶ 60-61.) At Plaintiff's request, Zimbler tasked then-Dean Kenya Vanterpool (“Vanterpool”), who is African-American, with re-interviewing the students. (Def.'s 56.1 Stmt. ¶¶ 61-62.) Vanterpool confirmed that Plaintiff made inappropriate comments about Hispanic students. (Def.'s 56.1 Stmt. ¶ 63.) Zimbler prepared a memorandum memorializing his meeting with Plaintiff and Vanterpool's findings; this memorandum states that Zimbler advised Plaintiff that the District would likely pursue disciplinary action against her if her behavior recurred. (Def.'s 56.1 Stmt. ¶¶ 64-66.) Plaintiff testified that during this meeting, Zimbler stated “I dealt with your kind of people.” (Pl.'s Dep. Tr. 137:14-21.)

         Eudes Budhai (“Budhai”), who Plaintiff alleges is Hispanic, was appointed Assistant Superintendent for Curriculum, Instruction, and Personnel, in or about 2012. (Budhai's Dep. Tr., Pl.'s Ex. O, Docket Entry 60-5, 8:2-12; Pl.'s Dep. Tr. 54:12-17.) Previously, Budhai served as the District's Director of Second Language Acquisition and Adult Learning Center for ten years. (Budhai's Dep. Tr. 18:16-25.) Budhai was not the Assistant Superintendent when Plaintiff was hired as a permanent substitute teacher. (Def.'s 56.1 Stmt. ¶ 70.)

         Budhai “routinely checks the certifications of District staff to ensure that the District is in compliance with state requirements.” (Def.'s 56.1 Stmt. ¶ 75.) During an “audit[ ]” in March 2013, Budhai discovered that Plaintiff did not possess the appropriate certification for her position. (Def.'s 56.1 Stmt. ¶ 76.) Budhai scheduled a meeting with Plaintiff for March 8, 2013. (Def.'s 56.1 Stmt. ¶ 77.) Prior to the meeting, Budhai sent Plaintiff a letter in which he advised Plaintiff that she did not possess the appropriate certification and provided her with an opportunity to proffer “evidence of other teaching certification and or enrollment in an accredited graduate program, at the rate of not less than six semester hours per year.” (Def.'s 56.1 Stmt. ¶ 79.)

         During their meeting, Budhai showed Plaintiff the relevant New York State regulations regarding the certification requirements for her position and told her that she was not qualified for her position. (Def.'s 56.1 Stmt. ¶¶ 81-82.) Plaintiff asked Budhai why this issue was not raised sooner, and Budhai told her that the District made an error. (Def.'s 56.1 Stmt. ¶¶ 83-84.) Budhai testified that he advised Plaintiff that she would be eligible for the permanent substitute position if she enrolled in an education program geared toward certification. (Def.'s 56.1 Stmt. ¶ 88.) Plaintiff was not enrolled in any classes at the time of her termination and had not enrolled in classes since 2012. (Def.'s 56.1 Stmt. ¶¶ 91-92.)

         Plaintiff advised Budhai that she had conflicts with Zimbler. (Def.'s 56.1 Stmt. ¶ 85.) Budhai testified that he told Plaintiff that Zimbler had nothing to do with her termination and indicated that Plaintiff could pursue the District's per diem substitute teacher list. (Def.'s 56.1 Stmt. ¶¶ 86-87.) Budhai testified that he did not provide Zimbler with advance notice of Plaintiff's termination. (Def.'s 56.1 Stmt. ¶ 97.)

         Budhai sent Plaintiff a letter confirming her termination, which included instructions regarding applying for the per diem substitute teacher list. (Def.'s 56.1 Stmt. ¶¶ 93-94.) Plaintiff refused to apply for the per diem list. (Def.'s 56.1 Stmt. ¶ 95.) Plaintiff testified that she tried to call into the per diem substitute list phone number but her assigned code number was not accepted. (Pl.'s Dep. Tr. 113:9-21.) Plaintiff did not try do anything else to get on the per diem list after that attempt. (Pl.'s Dep. Tr. 116:3-8.)

         Presently, the District's Middle School employs two permanent substitute teachers: Marie Joseph, an African-American who is fifty-four years old, and Joseph Cabale, who is Hispanic and thirty-four years old. (Def.'s 56.1 Stmt. ¶¶ 98-100, 102-103.) At the time of her application, Ms. Joseph was certified to teach English to Speakers of Other Languages and French. (Def.'s 56.1 Stmt. ¶ 101.) At the time of his application, Mr. Cabale was certified to teach Students with Disabilities and Childhood Education. (Def.'s 56.1 Stmt. ¶ 104.)

         I. Proce ...


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