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Cameron v. New York City Department of Education

United States District Court, S.D. New York

February 20, 2018

YOLLIA CAMERON, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, ANITA M. COLEY, in her official capacity and individually, and ESTHER WALKER WILSON, in her official capacity and individually, Defendants.

          OPINION & ORDER

          KIMBA M. WOOD United States District Judge

         Plaintiff Yollia Cameron brings this Title VII and New York City Human Rights Law ("NYCHRL") action against the New York City Department of Education ("DOE"), Anita M. Coley, and Esther Walker Wilson (collectively, "Defendants"). Plaintiff alleges that Defendants discriminated against her for being pregnant by not giving her substitute teaching assignments and by not hiring her for a secretary position. Defendants deny Plaintiffs allegations and have now moved for summary judgment.

         For the reasons stated below, Defendants' motion is GRANTED in part and DENIED in part. The Court GRANTS summary judgment in favor of Defendants with respect to the following claims: (1) Plaintiffs claims in Counts I, III, and IV of the Complaint that she did not receive a secretary position because she was pregnant are dismissed because Plaintiff has not provided sufficient evidence to support those claims, (2) Counts II and V of the Complaint are dismissed because Plaintiff did not timely submit a notice of claim and has now withdrawn those claims, and (3) Counts VI and VII of the Complaint are dismissed because a normal pregnancy is not a "disability" for purposes of a discrimination claim under NYCHRL The Court DENIES summary judgment in favor of Plaintiff with respect to Plaintiffs claims in Counts I, III, and IV of the Complaint that Defendants discriminated against Plaintiff for being pregnant by not giving her substitute teaching assignments, because the evidence is sufficient to permit a reasonable jury to find that Defendants unlawfully discriminated against Plaintiff in this manner.

         Trial will thus go forward on the issue of whether Defendants unlawfully discriminated against Plaintiff for being pregnant by not giving her substitute teaching assignments.

         I. BACKGROUND

         A. Factual Background [1]

         In March 2008, Cameron obtained her substitute teacher's certificate from the DOE. (Defs.' Statement & Pl.'s Resp., [2] ¶ 3.) From September 2008 through December 2008, Cameron worked as a substitute teacher in various schools in Queens. (Id., ¶ 4.) In January 2009, Cameron interviewed with Defendants Principal Coley and Assistant Principal Wilson for a substitute teaching position at the Eubie Blake School in Brooklyn ("P.S. 25"). (Id., ¶¶ 7-8, 18.) At the end of the interview, Coley informed Cameron that Cameron would be used as a substitute teacher at P.S. 25. (Id., ¶ 19.) In February 2009, Cameron received her first substitute teaching assignment at P.S. 25. (Id., ¶¶ 20-34, 48, 62, 65.) While at P.S. 25, Cameron and other substitute teachers there received substitute teaching assignments in one of three ways: (1) through a fully automated platform called SubCentral, (2) by Wilson directly asking a substitute teacher to fill in, and (3) by a full-time teacher asking a substitute teacher to fill in. (Id., ¶¶10 &10A, 16.)

         From February 2009 to June 2010, Cameron worked as a substitute teacher at P.S. 25 on 171 days. (See id., ¶¶ 20-34.) In June 2010, Cameron discovered that she was pregnant. (Ex. 9, [3] ¶ 6.) In July 2010, her pregnancy began to "show." (Id.) After summer break in July and August 2010, school started again in September 2010. (See Ex. 2, at 36:18-25.)

         On September 16, 2010, Cameron emailed Coley and Wilson to inform them that she had renewed her substitute teaching license. (Ex. 18.) By October 26, 2010, however, Cameron still had not been contacted for any substitute teaching assignments at P.S. 25.[4] (Ex. 1, at 44:9-14.) On that day, [5] Cameron visited P.S. 25 in-person and went to Coley's office to speak directly with Coley. (Ex. 1, at 51:9-l7, 54:7-15.) According to Cameron, Coley informed Cameron at that time that Coley had heard Cameron was pregnant, and had not contacted her for teaching assignments because the school did not want to be liable for any injury to Cameron. (See Ex. 1, at 54:11-22.) Coley added that Wilson, in particular, was concerned about Cameron working at P.S. 25 while pregnant. (Id.) Defendants dispute that Coley made these remarks. (Defs.'Memo, [6] atl4n.3.[7])

         The next day, October 27, Cameron received an email from Wilson asking Cameron to serve as a substitute teacher on October 28, 2010. (Defs.' Statement & Pl.'s Resp., ¶ 61.) On October 28 and 29, 2010, Cameron in fact served as a substitute teacher at P.S. 25. (Defs.' Statement & Pl.'s Resp., ¶¶ 62-63.)

         According to Cameron, on October 29, 2010, Paulette Roberts-a first grade teacher at P.S. 25-asked Cameron to substitute for her on November 1, 2010. (Ex. 1, at 61:6-14.) Although Cameron accepted the assignment, Roberts called Cameron the next day and canceled. (Id., at 64:4-20.) According to Cameron, Roberts explained during that call that Wilson had told Roberts, at Coley's instruction, not to use Cameron as a substitute because Cameron was pregnant.[8] (Id.)

         On November 4, 2010, a different teacher at P.S. 25 asked Cameron to serve as a substitute teacher on November 5, 2010, which Cameron did. (Id. ¶¶ 64-65.) After November 5, 2010, however, Cameron was never again asked to serve, and never did serve, as a substitute teacher at P.S. 25. (Id., ¶¶ 73, 73A; see also Ex. M (showing that after November 4, 2010, Cameron was contacted for substitute teaching assignments only at schools other than P.S. 25).)

         B. Relevant Procedural History

         Cameron filed this action against Defendants on December 21, 2015, before the Honorable Alison J. Nathan. (CompL, ECF No. 1.) On March 3, 2016, Defendants filed their Answer. (ECF No. 15.) On April 19, 2017, after discovery, Defendants moved for summary judgment. (ECF No. 43.) On August 31, 2017, the case was reassigned to the undersigned.

         II. SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate where the moving party shows there is no "genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In determining whether there is a "genuine" dispute as to material fact, "a court must construe the evidence in the light most favorable to the nonmoving party, drawing all inferences in that party's favor." Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003)). The burden of showing that "no [dispute as to any] material fact exists lies with the party seeking summary judgment." Id. (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).

         To demonstrate the existence of a genuine issue of material fact, "[t]he opposing party must come forward with affidavits, depositions, or other sworn evidence as permitted by Fed.R.Civ.P. 56, setting forth specific facts showing there exists a genuine issue of material fact." Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The nonmoving party successfully demonstrates a genuine issue of material fact if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (quoting Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008)) (internal quotation marks omitted).

         III. DISCUSSION

         A. Evidentiary Rulings

         Cameron's evidence of discrimination primarily consists of her own testimony about statements made to her by Defendant Coley and former P.S. 25 teacher Paulette Roberts on October 26, 2010, and October 29, 2010, respectively. (See Pl.'s Opp'n, at 7-8.) Other than Cameron's own testimony, there is no evidence that Coley or Roberts made these statements. Because Cameron would be the person testifying about these out-of-court statements, Defendants argue they are inadmissible hearsay. (Defs.' Reply, at 3.) As discussed below, these statements are not hearsay when offered against Coley, DOE, or Wilson, except that Coley's October 26, 2010 statement is hearsay if offered against Wilson.

         1. Coley's Statements to Cameron

          During her deposition, Cameron testified that Coley stated to Cameron that Coley had "heard of the news that [Cameron] was pregnant, " that Coley "d[id] not want to be liable" if Cameron got hurt, and that "that was the reason for [Coley] not having called, " and "cho[osing] not to use, " Cameron as a substitute teacher. (Ex. 1, at 54:7-15, 94:4-8.) Coley further stated that the person "concerned" about Cameron's pregnancy was Wilson, and that Cameron should "contact Dr. Wilson." (Id., at 54:16-22.) Although these are out-of-court statements, they are not hearsay if offered against Coley or DOE.

         If offered against Coley, these statements are not hearsay because they are the statements of an opposing party (Coley) used against that opposing party. See Fed. R. Evid. 801(d)(2)(A).

         If offered against DOE, Coley's statements are not hearsay because they were made by DOE's "employee on a matter within the scope of that relationship . . . while it existed." Fed.R.Evid. 801(d)(2)(D). Under Rule 801(d)(2)(D), an employee's statement is not hearsay when used against an employer, where the record shows "(1) the existence of [an] agency relationship [between the declarant and the employer], (2) that the statement was made during the course of the relationship, and (3) that it relates to a matter within the scope of the agency." United States v. Rioux, 97 F.3d 648, 660 (2d Cir. 1996) (citation and internal quotation marks omitted).

         With respect to requirements (1) and (2), there is sufficient evidence in the record to show that, at the time Coley purportedly made these statements, Coley was an employee of DOE. In particular, when these statements were purportedly made, Coley was the Principal of P.S. 25 and had a DOE email address, (Defs, ' Statement & Pls.' Resp., ¶7 Ex. 2, 19:10-20:5.) The Court also takes judicial notice of the fact that P.S. 25 is a public school run by the DOE. That fact is "generally known within the trial court's territorial jurisdiction" and is not subject to reasonable dispute. See Fed. R. Evid. 201 (b)(1).

         With respect to requirement (3), there is evidence in the record sufficient to show that substitute teaching assignments were "within the scope of Coley's employment with DOE. It is undisputed that Coley participated in interviewing and hiring Cameron for the position of substitute teacher. (Defs.' Statement & Pl.'s Resp., ¶¶ 18-19.) It is also undisputed that Coley hired at least one other long-term substitute teacher, Mr. Kitchens. (Pl.'s Statement, [9] ¶46.) A reasonable jury could also conclude from Cameron's testimony that Coley had oversight over substitute teaching assignments. For example, Cameron testified that Coley instructed Coley's secretary to identify Cameron as a priority substitute teacher. (Ex. 1, at 19:10-16.) Cameron also testified that Coley instructed Wilson not to give Cameron substitute teaching assignments. (Ex. 1, at 64:4-20.[10]) Collectively, this evidence is sufficient to establish that substitute teaching assignments were within the scope of Coley's employment. Coley's statements to Cameron that concerned Cameron's substitute teaching position and assignments, are thus admissible against Coley's employer, DOE.

         Although Coley's statements are admissible if offered against Coley or DOE, they are not admissible if offered against Wilson. A statement by one employee is admissible against another employee under Rule 801(d)(2)(D) only if the declarant was "directly responsible" to the employee against whom the statement is being used. Rioux, 97 F.3d at 660 (quoting Zaken v. Boerer, 964 F.2d 1319, 1322-23 (2d Cir. 1992), cert, denied, 506 U.S. 975, (1992)) (internal quotation marks omitted). Although Wilson was "directly responsible" to Coley (as discussed in greater detail below), there is no evidence that Coley was "directly responsible" to Wilson. Coley therefore was not Wilson's agent, and for this reason, Coley's statement to Cameron is not admissible against Wilson. See id.

         Cameron argues that Coley's statements are admissible because they are not being used to prove the truth of the matter asserted, but instead to show Defendants' "motives." (Pl.'s Opp'n, at 13.) But, as against Wilson, Coley's statements are being offered for their truth. In particular, Cameron is attempting to introduce a statement by Coley that Wilson was "concerned" with Cameron being pregnant, for the purposes of proving that Wilson, in fact, was "concerned" about Cameron being pregnant. Cameron is, therefore, offering this statement for "truth of the matter asserted in the statement, " Fed.R.Evid. 801(c), making it inadmissible hearsay if introduced against Wilson. See United States v. Cummings, 858 F.3d 763, 774 (2d Cir. 2017) (holding that, while first declarant's statement, "I am going to shoot Volcy in the face, " was not hearsay, second declarant's statement, "I heard [first declarant] say 'I am going to shoot Volcy in the face, '" was inadmissible hearsay within hearsay when offered against first declarant).

         Accordingly, under Rule 801(d)(2)(D), the statements purportedly made by Coley to Cameron on or about October 26, 2010, are not hearsay if introduced against DOE or Coley, but are hearsay if introduced against Wilson.

         2. Roberts' Statements to Cameron

         During her deposition, Cameron testified that Roberts told her that Roberts had to cancel Cameron's November 1, 2010 substitute teaching assignment because "Dr. Wilson relayed instructions to [Roberts] from Ms. Coley not to use [Cameron] because [Cameron] was pregnant." (EX. 1, 64:15-66:2.) Although Roberts' statement appears to contain hearsay within hearsay, hearsay within hearsay is admissible if each statement is subject to an exception or exclusion. See Fed. R. Evid. 805. As discussed below, Roberts' statement contains three different levels of potential hearsay, each of which is subject to a hearsay exclusion: (1) Coley's statement to Wilson commanding Wilson not to use Cameron, (2) Wilson's statement to Roberts instructing Roberts not to use Cameron and informing Roberts that this instruction came from Coley, and (3) Roberts' statement to Cameron informing Cameron of (1) and (2).

         a. Coley's Statement to Wilson

         Coley's statement to Wilson "not to use [Cameron] because [Cameron] was pregnant" is a command. In general, commands are not hearsay unless they are used to prove the truth of an implicit assertion. United States v. Dupree, 706 F.3d 131, 136-37 (2d Cir. 2013) (holding that order was not hearsay because it consisted "primarily of imperative statements" and was a "verbal act"); 801 Weinstein 's Federal Evidence § 801.11 (noting that questions, imperatives, and verbal acts are generally not considered statements). In the present case, Cameron is seeking to introduce Coley's command to Wilson to show that this command was given, not to prove the truth of the command. For this reason, Coley's command to Wilson is not hearsay.

         b. Wilson's Statement to Roberts

          Wilson's statement to Roberts relaying "instructions from Ms. Coley not to use [Cameron] because [Cameron] was pregnant" is slightly different from Coley's command to Wilson. In this statement, Wilson not only instructed Roberts not to hire Cameron, but also informed Roberts that this instruction came from Coley. Cameron would offer this latter portion of Wilson's statement for the truth of the matter asserted. Nevertheless, Wilson's statement is still not hearsay if used against Wilson, DOE, or Coley.

         If introduced against Wilson, this statement is not hearsay because it is Wilson's own Statement and Wilson is the opposing party against whom it would be used. See Fed. R. Evid. 801(d)(2)(A).

         If introduced against DOE, Wilson's statement is not hearsay because Wilson was an employee of DOE, and substitute teaching assignments fell under the scope of Wilson's employment at the time Wilson made the statement. As with Coley, Wilson's statement is admissible against DOE if the evidence shows "(1) the existence of [an] agency relationship, (2) that the statement was made during the course of the relationship, and (3) that it relates to a matter within the scope of the agency." Rioux, 97 F.3d at 660. With respect to (1) and (2), it is undisputed that Wilson was the Assistant Principal at the time she purportedly made this statement, and Wilson was thus an employee of DOE. (See, e.g., Defs.' Statement & Pl.'s Resp., ΒΆ 8.) With respect to (3), it is undisputed that Wilson "had oversight over the substitute teachers" and that ...


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