Chang v. New York City Board of Education

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------X

HUI-WEN CHANG aka “WENDY CHANG”,

Plaintiff,

MEMORANDUM AND ORDER

-against- 16-CV-2373 (KAM)(LB)

NEW YORK CITY DEPARTMENT OF EDUCATION,

JOHN FICALORA (individually and in his

capacity as agent), ROBERT KOURIL, and

GLORIA GRANT,

Defendants.

--------------------------------------X

MATSUMOTO, United States District Judge:

On May 9, 2016, plaintiff Hui-Wen (“Wendy”) Chang

commenced this action against the New York City Department of

Education (“DOE”), the New York City Board of Education, the

City of New York, Carmen Farina, John Ficalora, Eduardo

Mandrano-Salas, Eric Levitan, Gloria Grant, Robert Kouril, and

A.E., pursuant to Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. §§ 2000e et seq., the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. 621 et

seq., and the Americans with Disabilities (“ADA”), 42 U.S.C. §§

12112 et seq. (ECF No. 1, Complaint.) On March 31, 2017,

plaintiff filed an amended complaint against the DOE, Ficalora,

Grant, and Kouril, bringing charges under Title VII, the ADA, 42

U.S.C. § 1983, the New York State Human Rights Law (“NYSHRL”),

N.Y. Executive Law § 296, and the New York City Human Rights Law

(“NYCHRL”), N.Y.C. Admin. Code § 8-502(a), and alleging that she

was unlawfully subject to discrimination on the basis of race

and national origin and denied an accommodation for a

disability. (ECF No. 16, Amended Complaint (“Am. Compl.).)

Pending before the court is defendants’ motion for

summary judgment. For the reasons set forth below, the court

grants in part and denies in part defendants’ motion.

BACKGROUND

I. Factual Background

The facts in this section are taken from the

defendant’s Rule 56.1 statement, plaintiff’s response to

defendant’s Rule 56.1 statement, and the parties’ declarations

and exhibits, and they are considered in the light most

favorable to the non-moving party.

Plaintiff was hired by the DOE as a school librarian

in 1995 and was transferred to a position at Newtown High School

around 2003. (ECF No. 32, Defendants’ Statement Pursuant to

Local Civil Rule 56.1 (“Def. 56.1 Statement”) ¶ 1.) She is a

U.S. citizen who identifies as a Chinese Taiwanese American.

(Id. ¶ 2.)

Defendant Ficalora is the principal of Newtown High

School and has been so since 1991. (Id. ¶ 3.) In this

position, Ficalora is responsible for the students and staff,

hiring, evaluations, budgeting, guidance issues, attendance

issues, and anything that occurs in the school. (Id.)

Defendant Grant is a library media specialist at Newtown High

School and has been since 2013. (Id. ¶ 4.) Defendant Kouril

has been a special education teacher at Newtown High School

since 1999. (Id. ¶ 5.)

A. 2012-2013 School Year

Plaintiff alleges that she faced “blatant

discrimination” based on her race and national origin on or

about the first day of the 2012-13 school year because Ficalora

and assistant principal Levitan (“Levitan”), who were greeting

and shaking hands with other staff, turned away from plaintiff

and refused to shake her hand when she entered the school. (Id.

¶ 7.) Plaintiff does not recall any other individual

discriminating against her on the first day of that school year.

(Id. ¶ 8.) Plaintiff believes that Ficalora and Grant turned

their backs on her because she is Chinese, and concluded this

because Levitan once asked her why she sees Chinese doctors,

instead of American doctors. (ECF No. 39-1, Chang Deposition

Transcript (“Chang Tr.”) at 55-56.) Plaintiff does not know

whether any other Chinese employees at Newtown High School were

treated the same as she was on the first day of the 2012-13

school year. (ECF No. 36, Plaintiff’s Counterstatement Pursuant

to Local Civil Rule 56.1 (“Pl. Counterstatement”) ¶ 10.)

Plaintiff alleges that Ficalora and Levitan ignored

her when she invited them to a retirement party for another

librarian during the 2012-13 school year, and that they did so

because of her race and national origin. (Def. 56.1 Statement ¶

11.) Plaintiff testified that they ignored her “because [she]

threw the party and [she] just happen[s] to be a Chinese

librarian who initiated to throw the party.” (Chang Tr. at 62.)

Plaintiff alleges that Ficalora and Levitan did not

authorize the school to join a “New York Library Program” during

the 2012-13 school year because of her race and national origin.

(Def. 56.1 Statement ¶ 1.) Plaintiff believes they did not join

the program because she is “the only Chinese librarian” and that

if she had transferred out of Newtown High School, “everything

wouldn’t happen because of [her] national origin.” (Id. ¶ 14.)

Plaintiff does not believe that any other incidents of

discrimination occurred during the 2012-13 school year. (Id. ¶

15.)

B. 2013-2014 School Year

On or about September 26, 2013, Grant addressed

plaintiff as “China girl.” (Id. ¶ 16.) On or about September

27, 2013, Grant asked plaintiff if Chinese people eat

cockroaches. (Id. ¶ 17.) Grant asked plaintiff if she had a

recipe, searched for one on the internet, and reported back that

Chinese and Thai people eat roaches. (Pl. Counterstatement ¶

18.) These comments regarding roaches were made in front of

students, one of whom wrote a statement stating that Grant’s

comments offended him “and other kids that were there.” (Pl.

Counterstatement ¶ 18; ECF No. 35-4, Ex. D.)

Plaintiff directed written and verbal complaints to

Ficalora regarding Grant’s September 26 and September 27

remarks. (Pl. Counterstatement ¶ 19.) Following the

complaints, Ficalora had meetings with plaintiff and Grant

regarding the incidents. (Id. ¶ 20.) Ficalora told Grant she

should not use the term “China girl,” and should instead use the

term Asian. (ECF No. 39-3, Grant Deposition Transcript (“Grant

Tr.”) at 17, 20, 37.) When asked whether she met with Ficalora

regarding the roach comments, Grant responded “Yes, that’s the

time he told me I should not speak like that. I should say

Oriental, don’t say Chinese.” (Grant Tr. at 26; see also id. at

37 (explaining that “Asian,” rather than “Oriental” was the term

Ficalora suggested).1) Grant never reviewed an antiharassment or

antidiscrimination policy while at Newtown High School. (Grant

Tr. at 10.)

Ficalora testified that he believed Grant understood

from their meeting that she could not use language that was

1 The parties dispute whether Ficalora specifically addressed the roach

commentary. (See Pl. Counterstatement ¶ 21.) It is not clear whether Grant

meant that she was told not to make comments similar to the one about roaches

or she and Ficalora discussed those comments when he told her not to say

“China girl.”

inappropriate. (ECF No. 39-2, Ficalora Deposition Transcript

(“Ficalora Tr.) at 22.) No formal paperwork was placed in

Grant’s file regarding Chang’s complaint. (Id. at 22-23.)

Ficalora testified that he did not write a letter delineating

the racial allegations made by plaintiff because “Ms. Chang has

an issue with English and Ms. Grant definitely speaks with a

Jamaican accent and with English expressions.” (Id. at 37.)

Ficalora’s feeling after speaking with Chang and Grant was “that

there [were] misunderstandings [and] that Ms. Grant had no

intention of offending Ms. Chang, so [he] did not write to Ms.

Chang.” (Id.) Ficalora acknowledged that he is someone who

reports complaints of discrimination under Chancellor Regulation

A-830, though he did not know whether such reporting was

mandatory or if he had a duty to do so. (Id. at 95-96.)

Ficalora did not forward plaintiff’s complaint regarding the

“China girl” and roach comments to another body or agency within

DOE. (Id. at 96.)

Other than the statements on September 26 and

September 27, 2013, Grant did not make any other comments to

plaintiff regarding her race, ethnicity, or national origin

during the 2013-2014 school year. (Pl. Counterstatement ¶ 18.)

On October 30, 2013, Ficalora placed a letter in

plaintiff’s personnel file after he found that there was

“sufficient evidence to conclude that [plaintiff had used]

inappropriate language and behaved in an unprofessional manner.”

(Def. 56.1 Statement ¶ 22; ECF No. 31-6, Ex. F.) The letter

reports that Ficalora met with plaintiff to discuss a complaint

he had received from Grant, in which Grant claimed that

plaintiff called her “a piece of shit.” (ECF No. 31-6, Ex. F.)

Grant responded that plaintiff was “a bigger piece.” (Id.)

Plaintiff asserts that Grant called her a “piece of

shit” first and that she merely repeated the insult back to

Grant in response. (Pl. Counterstatement ¶ 22; ECF No. 31-6,

Ex. F.) The letter states that Grant’s “complaint indicated

that a staff member heard [plantiff] say the words,” and that

Ficalora “investigated and did receive confirmation.” (ECF No.

31-6, Ex. F.) The letter further stated that plaintiff and

Grant would need to improve their working relationship, and that

they should deal with each other in a professional manner and

never use inappropriate language. (Id.)

Plaintiff believes she received this letter because of

her prior complaint about Grant and because Ficalora had decided

to get rid of her. (Pl. Counterstatement ¶ 22.) Ficalora

testified that he did not recall receiving complaints about

plaintiff using inappropriate language before this incident.

(Ficalora Tr. at 25-26.)

On March 17, 2014, Ficalora placed a letter in

plaintiff’s file, which noted that Grant had submitted a

complaint about plaintiff on February 4, 2014 and summarized a

March 14, 2014 meeting plaintiff had with Ficalora regarding the

complaint. (Def. 56.1 Statement ¶¶ 23-24; ECF No. 31-7, Ex. G.)

The complaint stated that plaintiff had “held up [her] fists in

a boxing position and asked [Grant] if [she] wanted to fight.”

(ECF No. 31-7, Ex. G.) Grant testified that she was waiting to

pass by the plaintiff to get access to her locker, that she had

said “oh, my God” because plaintiff was taking too long to open

her locker in Grant’s opinion, and that plaintiff then turned

around and asked Grant if she wanted to fight. (Grant Tr. at

28-30.) Plaintiff denies holding up her fists or making this

remark. (Pl. Counterstatement ¶ 23.)

Ficalora did not see plaintiff in a boxing position,

but noted that a staff member observed that plaintiff’s fists

were clenched when she and Grant were in the hallway after the

incident. (Ficalora Tr. at 32-33.) The letter stated that

Ficalora concluded that Grant’s complaint was credible and

cautioned plaintiff that she should never threaten coworkers.

(ECF No. 31-7, Ex. G.)

On or about April 18, 2014, plaintiff filed a

complaint with the New York State Division of Human Rights

(“NYSDHR”) against Ficalora and Grant. (Def. 56.1 Statement ¶

25.)

At the end of the 2013-14 school year, plaintiff

received a satisfactory rating for her performance evaluation.

(Id. ¶ 26.)

C. 2014-2015 School Year

On September 16, 2014, the New York State Division of

Human Rights issued a finding of "NO PROBABLE CAUSE" in response

to plaintiff’s April 18, 2014 charge of discrimination. (Def.

56.1 Statement ¶ 27.)

On October 24, 2014, Ficalora met with plaintiff to

discuss an incident that took place on October 21, 2014. (Id. ¶

28; ECF No. 31-10, Ex. J.) On October 31, 2014, a letter was

placed into plaintiff’s file describing the October 21 incident

and the October 24 meeting. (ECF No. 31-10, Ex. J.) The letter

states that following a conflict between plaintiff and Grant,

“Ms. Grant ran into the hallway screaming for security[, and]

Mr. Medrano, Assistant Principal, Security, responded.” (Id.)

Grant “indicated that [plaintiff] approached her in a

threatening way and pushed something toward her face that

appeared like a cell phone and that [plaintiff] quickly followed

behind [Grant] as she moved toward the door.” (Id.)

Plaintiff disputes the characterization of the event.

(Pl. Counterstatement ¶¶ 28-29.) Ficalora testified that he was

uncertain whether he substantiated that plaintiff shoved an item

in Grant’s face, aside from Grant’s statement. (Ficalora Tr. at

29.) Grant testified that plaintiff wanted to speak with her

and “kept following [her] around” even though she indicated to

plaintiff that she was not going to talk at that time. (Grant

Tr. at 27.) Grant testified that she was scared and ran to

Medrano’s office. (Grant Tr. at 28.) Grant stated that she

asked Medrano to talk to plaintiff and said her running away was

a “real run.” (Id.)

On November 4, 2014, Ficalora requested a

psychological medical review to evaluate plaintiff’s fitness to

work in a school. (Def. 56.1 Statement ¶ 30.) The reasons

stated in the request included the following: plaintiff’s

October 21, 2014 incident involving Grant and Medrano;

plaintiff's "diatribe about patriotism, freedom of speech and

her love for [the United States]” when asked about the October

21, 2014 incident; plaintiff’s raising of her fists in a

fighting stance toward a colleague; harassing phone calls

plaintiff made to a staff member after she asked whether the

staff member knew who the head of the KGB was; comments made to

that same staff member stating that Ficalora had a mind control

device and that the school’s phones were tapped; plaintiff’s

request to another staff member to use that person’s cell phone

because it was the only phone that was not tapped; plaintiff’s

confrontations with colleagues and students; plaintiff’s claims

that items were taken from her school locker and mysteriously

returned to her home; and plaintiff’s report of a panic attack.

(ECF No. 31-11, Ex. K.)

On November 10, 2014, Ficalora placed a letter in

plaintiff’s file in which he stated that she was late to a

lesson on November 6, 2014, and that she had twice failed to

report to Ficalora’s office as requested within that week.

(Def. 56.1 Statement ¶¶ 31-32.)

On or about January 7, 2015, plaintiff was involved in

a physical altercation with a student; the student alleged that

plaintiff pushed her and said “punch me.” (Id. ¶ 33; ECF No.

31-13, Ex. M; ECF No. 31-14, Ex. N.) The student who alleged

that plaintiff pushed her was not forced by anyone to make that

allegation. (Def. 56.1 Statement ¶ 37.) Plaintiff and Ficalora

discussed the incident on February 4, 2015, and she denied that

she pushed a student. (Def. 56.1 Statement ¶ 35.) During the

investigation of the incidents, ten students were interviewed,

including students plaintiff requested statements from. (ECF

No. 31-13, Ex. M.) In the letter to plaintiff’s file regarding

the incident, Ficalora concluded that the student statements

were consistent and credible, and that plaintiff’s behavior was

against the Chancellor’s Regulation A-420, which prohibits

corporal punishment. (Def. 56.1 Statement ¶ 36; ECF No. 31-13,

Ex. M.)

Plaintiff disputes that she told a student to punch

her, and maintains that she was attacked by a student after she

tried to stop the student from leaving the library through a

door students were not allowed to use. (Pl. 56.1

Counterstatement ¶ 33.) A student sent plaintiff a video clip

taken during the incident, which plaintiff forwarded to

Ficalora’s administrative assistant on February 11, 2015. (ECF

No. 34, Chang Affidavit (“Chang Aff.”) ¶ 5; ECF No 34-1, Ex. A.)

Ficalora testified that he heard there was a video of

the incident, but that he never saw it and that plaintiff never

sent it to him. (Ficalora Tr. at 20.) Ficalora also testified

that he was uncertain whether plaintiff pushed the student and

that he charged her with corporal punishment because she was

blocking the door for no reason and antagonizing the student,

which caused the incident to escalate, putting herself and

students in danger. (Id. at 45-46.) The student was also

suspended. (Id. at 18-19.)

On February 11, 2015, Ficalora placed a letter in

plaintiff’s file, which noted that plaintiff had failed to

attend four scheduled periods of report card conferencing

without approval on February 4, 2015. (Def. 56.1 Statement ¶

38.)

Plaintiff began a leave of absence that started

sometime before March 20, 2015 and ended on May 3, 2015. (ECF

No. 31-17, Ex. Q; ECF No. 31-23, Ex. W.) On March 20, 2015,

plaintiff requested a “safety/hardship transfer from Newtown

High School in Queens based on a physical assault [she] suffered

by a student on January 7, 2015.” (Def. 56.1 Statement ¶ 40;

ECF No. 31-17, Ex. Q.) Plaintiff’s request stated that she had

“great fear and anxiety” and had recently taken time off to

“reduce anxiety based on advice of [her] doctors.” (ECF No. 31-

17, Ex. Q.) The letter states that plaintiff’s doctors strongly

suggested that she change her working environment to alleviate

the anxiety and fear she had of returning to the school. (Id.)

The request stated that plaintiff was “subject to bullying and

harassment by staff members of the school on a frequent basis.”

(Id.) The letter also included plaintiff’s desire to “be

transferred to another high school in Queens not far from [her]

home.” (Id.)

In connection with the January 7, 2015 student

altercation, on April 24, 2015, plaintiff released the City of

New York, any and all past and present officers, directors,

managers, administrators, employees, agents, assignees, lessees,

and representatives of the City of New York from “any and all

claims, causes of action, suits, debts, sums of money, accounts,

controversies, transactions, occurrences, agreements, promises,

damages, judgments, executions, and demands whatsoever, known or

unknown, which [plaintiff] had, now has, or hereafter can,

shall, or may have against the RELEASEES for, upon or by reason

of any matter, cause or thing whatsoever that occurred through

[April 24, 2015].” (Def. 56.1 Statement ¶ 41; ECF No. 31-26,

Ex. Z.)

This general release resulted from plaintiff’s filing

of a notice of claim on or about February 5, 2015, alleging

injuries in connection with the January 7, 2015 physical

altercation with a student. (Ibid.) Plaintiff was represented

by counsel when she filed the notice and when she signed the

general release. (Def. 56.1 Statement ¶ 41.)

On May 2, 2015, plaintiff’s doctor diagnosed plaintiff

with Post Traumatic Stress Disorder (“PTSD”) and Depressive

Disorder, and recommended that she be placed on “light duty.”

(Id. ¶ 42.) Plaintiff’s colleagues were not aware of her PTSD

diagnosis. (Id. ¶ 43.) On a single unspecified date sometime

in May 2015, defendant Kouril told plaintiff “you are crazy and

everyone knows it.” (Id. ¶ 45.) Kouril, who made this

statement to plaintiff in the presence of another colleague, did

not know that plaintiff had been diagnosed with PTSD or that she

had any stress or anxiety issues. (Id. ¶ 46.)

On June 9, 2015, plaintiff was involved in another

physical altercation with a student. (Id. ¶ 47.) Plaintiff

allegedly approached a student, tapped the student’s shoulder,

told the student to quiet down, and, when the student stood up,

told the student “go ahead and hit me.” (Id.; ECF No. 31-19,

Ex. S.) Plaintiff also kicked the student's backpack. (Ibid.)

Plaintiff disputes this, claiming that the student physically

attacked her. (Pl. Counterstatement ¶ 47.) Plaintiff was taken

away in an ambulance and filed a police report regarding the

incident. (Id.) The student was suspended. (Chang Tr. at

117.)

On June 18, 2015, plaintiff received an unsatisfactory

end of year evaluation. (Def. 56.1 Statement ¶ 48.) A

Chancellor’s Committee Report found that the unsatisfactory

rating was based on plaintiff’s “repeated[] commi[ssion] of

gross acts of professional misconduct.” (ECF No. 31-21, Ex. U

at 3.) The report cited the following incidents: plaintiff’s

physical altercations with and provocation of students; when

plaintiff “harassed a fellow librarian” by following her and

approaching in a threatening manner designed to intimidate; and

plaintiff’s failure to report to assigned teaching periods or

meetings with Ficalora as directed. (Id.) Ficalora testified

that the corporal punishment charge is what caused the

unsatisfactory rating. (Ficalora Tr. at 61-62.) Plaintiff

believes that the unsatisfactory rating was based on

discrimination and retaliation for filing a complaint with the

NYSDHR in April 2014. (Pl. Counterstatement ¶ 49.)

On June 26, 2015, plaintiff's March 20, 2015 hardship

transfer request was denied. (Def. 56.1 Statement ¶ 50.) The

same day, plaintiff again requested a safety/hardship transfer

from Newtown High School, and included a doctor’s note in her

request. (Id. ¶ 51; ECF No. 31-23, Ex. W.) The letter

requested the transfer “based on two physical assaults

[plaintiff] suffered by two students on January 7 and June 9,

2015.” (ECF No. 31-23, Ex. W.) This letter reiterates

plaintiff’s “great fear and anxiety” regarding returning to

school and that plaintiff was “subject to bullying and

harassment by staff members of the school on a frequent basis.”

(Id.) The letter stated that plaintiff wished to ne

“transferred to another high school in Queens not far from [her]

home.” (Id.)

On August 21, 2015, plaintiff’s hardship transfer

request was denied. (Def. 56.1 Statement ¶ 52.) Plaintiff

testified that she was aware of vacant positions she could have

been transferred to, that she saw a couple of them in the Bronx,

and that she applied to but was not accepted to them. (Chang

Tr. at 112-13.)

D. 2015-2016 School Year

On October 5, 2015, the Chancellor’s Committee

recommended that plaintiff’s appeal of her unsatisfactory rating

be denied and the rating sustained. (ECF No. 31-21, Ex. U.) On

or about October 8, 2015, plaintiff stopped going to work.

(Def. 56.1 Statement ¶ 54; ECF No. 38-2, Ex. B.) On October 13,

2015, plaintiff’s doctor diagnosed plaintiff as “fully disabled

at [that] time and . . . unable to return to her job . . . due

to Post-Traumatic Stress Disorder and Depressive Disorder.”

(ECF No. 38-1, Ex. A.)

On March 22, 2016, Ficalora requested a medical

evaluation to determine plaintiff’s mental and physical capacity

to perform her duties. (ECF No. 38-2, Ex. B.) The letter lists

the following reasons for the request: plaintiff’s absence from

work for 96 days, since October 7, 2015, after she had a

breakdown in Ficalora’s office; plaintiff’s confrontations with

students that resulted in physical altercations, student

suspensions, and harm to plaintiff; constant conflicts with

Grant, including threats of physical harm; harassing phone calls

made to a staff member after the staff member told plaintiff she

did not know who the head of the KGB is; and plaintiff’s

comments to a staff member that Ficalora had a mind control

device and that the school’s phones were being tapped. (Id.)

On April 12, 2016, as a result of the medical fitness

evaluation, plaintiff was found unfit to work. (Def. 56.1

Statement ¶ 55; ECF No. 31-25, Ex. Y.) The evaluation also

determined that plaintiff’s absence since October 8, 2015 was

“medically justified as personal illness.” (ECF No. 31-25, Ex.

Y.) Plaintiff does not believe she will ever be well enough to

return to work. (Def. 56.1 Statement ¶ 56.) Plaintiff

maintains that because she “was forced to leave her position

prior to reaching the age of 55, [her] pension is about two-

thirds of what it would have been had she been able retire at or

after age 55.” (Pl. 56.1 Counterstatement ¶ 57.)

LEGAL STANDARD

I. Motion for Summary Judgment

Summary judgment is appropriate where “the movant

shows that there is no genuine dispute as to any material fact,”

Fed. R. Civ. P. 56(a), “and the facts as to which there is no

such issue warrant the entry of judgment for the moving party as

a matter of law.” Kaytor v. Electric Boat Corp., 609 F.3d 537,

545 (2d Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S.

317, 322–23 (1986). “All ambiguities must be resolved in favor

of the non-moving party and all permissible inferences from the

factual record must be drawn in that party's favor.” Zalaski v.

City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.

2010).

If the moving party can show that “there is no genuine

issue as to any material fact and that it is entitled to

judgment as a matter of law, the nonmoving party must come

forward with specific facts showing that there is a genuine

issue for trial.” Peterson v. Regina, 935 F. Supp. 2d 628, 634

(S.D.N.Y. 2013) (citing Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986)). “When opposing parties

tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could

believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.” Scott

v. Harris, 550 U.S. 372, 380 (2007).

To defeat a motion for summary judgment, the non-

moving party must identify probative, admissible evidence from

which a reasonable factfinder could find in his favor. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 256-257 (1986). It

“requires the nonmoving party to go beyond the pleadings and by

[his or] her own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific

facts showing that there is a genuine issue for trial.” 477

U.S. at 261 n.2 (citations omitted). “Only disputes over facts

that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment. . . .

[I]t is the substantive law’s identification of which facts are

critical and which facts are irrelevant that governs.” 477 U.S.

at 248. If, as to the issue on which summary judgment is

sought, there is any evidence in the record from any source from

which a reasonable inference could be drawn in favor of the

nonmoving party, summary judgment is improper. Chambers v. TRM

Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) (citations

omitted).

The Second Circuit has “repeatedly expressed the need

for caution about granting summary judgment to an employer in a

discrimination case where . . . the merits turn on a dispute as

to the employer's intent.” Holcomb v. Iona Coll., 521 F.3d 130,

137 (2d Cir. 2008). “Where an employer has acted with

discriminatory intent, direct evidence of that intent will only

rarely be available, so that ‘affidavits and depositions must be

carefully scrutinized for circumstantial proof which, if

believed, would show discrimination.’” Id. (citing Gallo v.

Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224

(2d Cir. 1994)). But “[e]ven in the discrimination context,

however, a plaintiff must provide more than conclusory

allegations to resist a motion for summary judgment.” Id.

(citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)).

DISCUSSION

I. Effect of Waiver

Defendants argue that the release plaintiff signed

bars plaintiff’s claims that arise from events that occurred on

or before April 24, 2015. (ECF No. 30, Memorandum of Law in

Support of Defendants’ Motion for Summary Judgment (“Def. Mem.”

at 4-8.) Plaintiff argues that she only intended to release the

City of New York from financial liability related to the

injuries she received on January 7, 2015 during the altercation

with a student. (ECF No. 33, Plaintiff’s Memorandum of Law in

Opposition to Defendants’ Motion for Summary Judgment (“Opp.”)

at 9.) Plaintiff argues that the release is a boilerplate form

that does not mention the defendants or disputes other than

plaintiff’s notice of claim for the January 7, 2015 incident.

(Opp. at 9-10.)

“Under New York law, a release that is clear and

unambiguous on its face and which is knowingly and voluntarily

entered into will be enforced.” Pampillonia v. RJR Nabisco,

Inc., 138 F.3d 459, 463 (2d Cir. 1998). “With unambiguous

contracts, a party's subjective intent and understanding of the

terms is irrelevant.” HOP Energy, L.L.C. v. Local 553 Pension

Fund, 678 F.3d 158, 162 (2d Cir. 2012). “Where the language of

[a] release is clear, effect must be given to the intent of the

parties as indicated by the language employed.” Tromp v. City

of New York, 465 F. App'x 50, 51 (2d Cir. 2012) (citations &

internal quotation marks omitted).

“Words of general release are clearly operative not

only as to all controversies and causes of action between the

releasor and releasees which had, by that time, actually ripened

into litigation, but to all such issues which might then have

been adjudicated as a result of pre-existent controversies.”

Id. at 52 (citations & internal quotation marks omitted). When

the release contains general language, “the release is to be

construed most strongly against the releasor.” Id. “Courts in

this Circuit have consistently barred claims where a plaintiff

enters into a settlement, executes a general release, and then

brings an additional lawsuit alleging similar claims that could

have been alleged in the prior settled action.” Dechberry v.

New York City Fire Dep't, 124 F. Supp. 3d 131, 142 (E.D.N.Y.

2015).

A release that “does not expressly state that the

agreement constitutes a waiver of the right to file any legal

claim against the employer” is not a general release that should

be broadly construed. See Dash v. Bd. of Educ. of City Sch.

Dist. of New York, 238 F. Supp. 3d 375, 390 (E.D.N.Y. 2017)

(emphasis in original). But the “mere recitation of the

specific claims underlying a settlement will not undermine the

broad prophylactic effect of general release language.” Vornado

Realty Tr. v. Marubeni Sustainable Energy, Inc., 987 F. Supp. 2d

267, 278 (E.D.N.Y. 2013). “Summary judgment is appropriate only

when the contractual language is ‘wholly unambiguous.’” Graham

v. Empire Bail Bonds, 2010 WL 1849295, at *2 (E.D.N.Y. May 7,

2010). “The proper interpretation of an unambiguous contract is

a question of law for the court, and a dispute on such an issue

may properly be resolved by summary judgment.” Omni Quartz,

Ltd. v. CVS Corp., 287 F.3d 61, 64 (2d Cir. 2002).

The release plaintiff signed is unambiguous.

Plaintiff agreed to “release and forever discharge . . . any and

all claims, causes of action, suits, debts, sums of money,

accounts, controversies, transactions, occurrences, agreements,

promises, damages, judgments, executions, and demands,

whatsoever, known or unknown, which RELEASOR had, now has or

hereafter can, shall, or may have against the RELEASEES for,

upon or by reason of any matter, cause or thing whatsoever that

occurred through the date of this RELEASE.” (Def. 56.1 ¶ 41;

ECF No. 31-26, Ex. Z.) The releasees were the ”City of New

York, and all past and present officers, directors, managers,

administrators, employees, agents, assignees, lessees, and

representatives of the City of New York, and all other

individually named defendants and entities represented and/or

indemnified by the City of New York[.]” (Id.)

The release was dated April 24, 2015. The defendants

in this case are releasees whose actions through April 24, 2015

were covered by the release. Although the release identifies

plaintiff by reference to her claim, it does not contain

language cabining the release to that claim. Moreover, though

the clear language alone suffices, the court notes that

plaintiff was represented by an attorney, and already had raised

allegations of mistreatment on the basis of race and national

origin when she signed this general release. (See ECF No. 31-8,

Ex. H; ECF No. 31-9, Ex. I.)

Defendants are entitled to summary judgment on any and

all of plaintiff’s claims, suits, actions, and all other

specified matters based on events occurring prior to April 24,

2015, because they are barred by the clear terms of the general

release. These actions include plaintiff’s selective

enforcement and race and national origin discrimination claims

to the extent that the underlying events upon which the claims

are based occurred before April 24, 2015.

II. Race & National Origin Discrimination in Violation of Title

VII and the NYSHRL

The court considers whether defendant is entitled to

summary judgment on plaintiff’s claims of race and national

origin discrimination based on conduct that occurred after April

24, 2015.

Under the Supreme Court’s McDonnell Douglas framework,

“a plaintiff must first establish a prima facie case of

discrimination by showing: (1) she belonged to a protected

class, (2) was qualified for the position she held or sought,

and (3) suffered an adverse employment action (4) under

circumstances giving rise to an inference of discriminatory

intent.” Fanelli v. New York, 200 F. Supp. 3d 363, 370

(E.D.N.Y. 2016) (citing Terry v. Ashcroft, 336 F.3d 128, 137-38

(2d Cir. 2003)). “This burden is minimal and does not require

specific evidence of discrimination.” Brown v. Baldwin Union

Free Sch. Dist., 603 F. Supp. 2d 509, 514 (E.D.N.Y. 2009)

(citing Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006)).

“Claims brought under the NYSHRL are analyzed identically and

the outcome of an employment discrimination claim made pursuant

to the NYSHRL is the same as it is under . . . Title VII.” Hyek

v. Field Support Servs., Inc., 461 F. App'x 59, 60 (2d Cir.

2012) (citing Smith v. Xerox Corp., 196 F.3d 358, 363 n.1 (2d

Cir. 1999), overruled on other grounds by Meacham v. Knolls

Atomic Power Lab, 461 F.3d 134, 140-41 (2d Cir. 2006)) (internal

quotation marks omitted).

“A plaintiff sustains an adverse employment action if

he or she endures a materially adverse change in the terms and

conditions of employment.” Joseph v. Leavitt, 465 F.3d 87, 90

(2d Cir. 2006) (citation and internal quotation marks omitted).

“Examples of materially adverse employment actions include

termination of employment, a demotion evidenced by a decrease in

wage or salary, a less distinguished title, a material loss of

benefits, significantly diminished material responsibilities, or

other indices unique to a particular situation.” Feingold v.

New York, 366 F.3d 138, 152 (2d Cir. 2004) (alternation,

citation, and internal quotation marks omitted). See also Vega

v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir.

2015) (“A plaintiff sustains an adverse employment action if he

or she endures a materially adverse change in the terms and

conditions of employment.”); Rasko v. New York City Admin. for

Children's Servs., 734 F. App'x 52, 54 (2d Cir. 2018) (“Informal

discipline, criticism, or counseling does not constitute an

adverse act if no change in working conditions accompanies

it.”).

“If the plaintiff establishes a prima facie case, the

burden then shifts to the employer to ‘articulate some

legitimate, nondiscriminatory reason for [the adverse act].’”

Whethers v. Nassau Health Care Corp., 956 F. Supp. 2d 364, 375

(E.D.N.Y. 2013) (citing Leibowitz v. Cornell Univ., 584 F.3d

487, 499 (2d Cir. 2009)), aff'd, 578 F. App'x 34 (2d Cir. 2014).

“The employer's burden of showing a legitimate non-

discriminatory reason for its actions is not a particularly

steep hurdle.” Id. “Should the employer satisfy its burden,

the McDonnell Douglas framework and its presumptions and burdens

disappear, leaving the sole remaining issue of ‘discrimination

vel non.’” Fanelli v. New York, 200 F. Supp. 3d 363, 371

(E.D.N.Y. 2016) (citing Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 143 (2000)).

“To rebut an employer's proffered non-discriminatory

rationale for its actions and withstand summary judgment, a

plaintiff must present more than allegations that are

‘conclusory and unsupported by evidence of any weight.’” Id.

(citing Smith v. Am. Ex. Co., 853 F.2d 151, 154-55 (2d Cir.

1988)). See also Chan v. Donahoe, 63 F. Supp. 3d 271, 297

(E.D.N.Y. 2014) (citing Zann Kwan v. Andalex Grp. LLC, 737 F.3d

834, 845 (2d Cir. 2013)) (“In order to successfully rebut an

employer’s purported non-discriminatory reason for the

employment action, the plaintiff must establish pretext.”).

“Thus, when the district court considers whether the evidence

can support a verdict of discrimination on a motion for summary

judgment, it ‘must analyze the evidence, along with the

inferences that may be reasonably drawn from it, and decide if

it raises a jury question as to whether the plaintiff was the

victim of discrimination.’” Grady v. Affiliated Cent., Inc.,

130 F.3d 553, 560 (2d Cir. 1997) (citing Fisher v. Vassar

College, 114 F.3d 1332, 1347 (2d Cir. 1997)).

Defendants argue that the disciplinary letters and

negative employment evaluations plaintiff received to do not

qualify as adverse employment actions because they did not

result in changes to the conditions of plaintiff’s employment.

(Def. Mem. at 11-13.) Plaintiff argues that the disciplinary

letters were themselves adverse actions. (Opp. at 15-16.)

Plaintiff argues that the corporal punishment charges are

adverse actions that will remain on plaintiff’s record and

likely prevent plaintiff from obtaining employment in the same

field. (Id. at 14-15.) Plaintiff generally suggests that

Ficalora’s actions and determinations were based on incorrect

and biased assessments. (Id.) Plaintiff argues that she lost

her job and received a reduced pension as a result of the

medical evaluation that Ficalora requested, and further asserts

that the examination was requested based on her conflicts with

Grant (to whom she apportions fault). (Id.)

Plaintiff has not established that she suffered an

adverse employment action. “In the context of a discrimination

claim, negative evaluations, criticism and unwanted scrutiny are

not adverse employment actions absent a showing that such

actions affected the terms and conditions of the plaintiff's

employment.” Spaulding v. New York City Dep't of Educ., 2015 WL

12645530, at *35 (E.D.N.Y. Feb. 19, 2015), report and

recommendation adopted, 2015 WL 5560286 (E.D.N.Y. Sept. 21,

2015). See also id. (explaining that the teacher plaintiff’s

failure to provide evidence that her unsatisfactory rating for

the school year affected the terms and conditions of employment

meant she had not established that an unsatisfactory rating was

an adverse employment action for purposes of a discrimination

claim).

There is no evidence that plaintiff’s receipt of the

disciplinary letters, including the corporal punishment charges,

and unsatisfactory rating resulted in her termination. The

plaintiff challenged her unsatisfactory rating, which did not

result in plaintiff’s termination. The Chancellor’s Committee

found that the 2015 unsatisfactory rating was based on acts of

professional misconduct, which included the January 7, 2015

physical altercation, plaintiff’s intimidation of Grant, and

failures to report to assigned teaching periods and meetings

with Ficalora. (ECF No. 31-21, Ex. U at 4.) Plaintiff’s

employment was not terminated after these documents were issued,

and it is undisputed that plaintiff continued her employment

during the next school year.

Plaintiff claims that she “lost her job and received

only a reduced pension, because she was terminated from

employment due to a medical examination that Ficalora

requested.” (Opp. at 15.) The undisputed record, however,

establishes that plaintiff stopped coming to work on October 8,

2015. (ECF No. 38-2, Ex. B; ECF No. 31-25, Ex. Y.) Plaintiff’s

doctor stated on October 13, 2015 that she was “fully disabled”

and “unable to return to her job” due to “post-traumatic stress

disorder and depressive disorder.” (ECF No. 38-1, Ex. A.)

Ficalora subsequently requested a medical examination, which

included reasons beyond the conflicts with Grant. (ECF No. 38-

2, Ex. B.) Plaintiff thereafter had a medical examination on

April 12, 2016 and was found “not fit for personal illness” for

her job. (ECF No. 31-25, Ex. Y.) Plaintiff has, therefore,

failed to establish a prima facie case of discrimination.

Even assuming that plaintiff had established a prima

facie case, defendants have offered legitimate,

nondiscriminatory reasons regarding the circumstances under

which plaintiff’s employment ceased. Defendant requested a

medical evaluation to determine plaintiff’s “mental and physical

capacity to perform her duties,” citing plaintiff’s long

absence; plaintiff’s physical altercations with students;

plaintiff’s conflicts with Grant; plaintiff’s harassing phone

calls made to another employee; and plaintiff’s fantastic

statements regarding mind control and surveillance made to

another employee. (ECF No. 38-2, Ex. B.)

Although plaintiff treats defendants’ request for a

medical evaluation as the trigger for her unemployment, the

record demonstrates otherwise. Defendant requested a medical

examination only after plaintiff herself had been absent from

work 96 days. The medical evaluation found that plaintiff was

not fit for work “for personal illness.” Defendants may have

requested an evaluation based on events that plaintiff

characterizes differently from defendants, but her health, as

she and her doctor have both acknowledged, is why she no longer

works.

The court acknowledges that plaintiff disputes

Ficalora’s conclusions regarding the disciplinary letters in her

files and her unsatisfactory rating, and that she contests most

of the defendants’ descriptions of events involving the

plaintiff as hearsay. Courts, however, are “decidedly not

interested in the truth of the allegations against plaintiff.”

McPherson v. New York City Dep't of Educ., 457 F.3d 211, 216 (2d

Cir. 2006). Rather, “[w]e are interested in what ‘motivated the

employer,’ the factual validity of the underlying imputation

against the employee is not at issue.” Id. (citing United

States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711,

716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (emphasis added)

(internal quotations omitted)). The Second Circuit’s ruling in

McPherson addressed an “attack . . . on the legitimacy of the

reasons, specifically, DOE’s reliance on hearsay evidence

contained in the . . . investigatory report” regarding

“investigatory conclusions that [plaintiff] used corporal

punishment[.]” Id. at 215. The court noted that although

“bizarre or duplicitous processes might strengthen a plaintiff's

showing of pretext,” there was no such showing because in the

business context “reliance on evidence (such as hearsay) that

would be excluded by the Federal Rules of Evidence is

insufficiently arbitrary and aberrant to support an inference of

pretext.” Id. at 216 n.7.

Plaintiff generally disputes Ficalora’s conclusions by

critiquing his investigatory process. But plaintiff offers no

evidence of a bizarre and duplicitous process, motivated by

animus based on race, ethnicity, national origin, or disability,

that supports an inference of pretext. Moreover, the record

demonstrates that the process plaintiff participated in included

an appeal of plaintiff’s unsatisfactory rating for the 2014-15

school year, and the rating was sustained by the Chancellor’s

Committee.

Defendants are, therefore, entitled to summary

judgment on plaintiff’s race and national origin discrimination

claims.

III. Hostile Work Environment under Title VII and the NYSHRL

“Hostile work environment claims under Title VII and

the NYSHRL are governed by the same standard.” Tolbert v.

Smith, 790 F.3d 427, 439 (2d Cir. 2015). “To establish a prima

facie case of hostile work environment, the plaintiff must show

that the discriminatory harassment was ‘sufficiently severe or

pervasive to alter the conditions of the victim's employment and

create an abusive working environment,’ and ‘that a specific

basis exists for imputing’ the objectionable conduct to the

employer.” Id. (citing Perry v. Ethan Allen, Inc., 115 F.3d

143, 149 (2d Cir. 1997)). “It is axiomatic that the plaintiff

also must show that the hostile conduct occurred because of a

protected characteristic.” Id. (citing Alfano v. Costello, 294

F.3d 365, 374 (2d Cir. 2002)).

To determine whether a work environment is

sufficiently hostile, “courts consider the totality of the

circumstances, including such factors as ‘(1) the frequency of

the discriminatory conduct; (2) its severity; (3) whether the

conduct was physically threatening or humiliating, or a mere

offensive utterance; (4) whether the conduct unreasonably

interfered with plaintiff's work; and (5) what psychological

harm, if any, resulted.’” Lumhoo v. Home Depot USA, Inc., 229

F. Supp. 2d 121, 152 (E.D.N.Y. 2002) (citing Richardson v. New

York State Dep’t of Correctional Serv., 180 F.3d 426, 437 (2d

Cir. 2002)). “The incidents at issue must be ‘more than

episodic; they must be sufficiently continuous and concerted in

order to be deemed pervasive.’” Bacchus v. New York City Dep't

of Educ., 137 F. Supp. 3d 214, 240 (E.D.N.Y. 2015) (citing Das

v. Consolidated School Dist. of New Britain, 369 F. Appx 186,

190 (2d Cir. 2010)).

“In other words, ‘[s]imple teasing, offhand comments,

and isolated incidents (unless extremely serious) will not

amount to discriminatory changes in the terms and conditions of

employment.’” Illiano v. Mineola Union Free Sch. Dist., 585 F.

Supp. 2d 341, 350 (E.D.N.Y. 2008) (citing Faragher v. City of

Boca Raton, 524 U.S. 775, 788 (1998)). “[U]nder the law, an

unpleasant work environment does not amount to a hostile one.”

Mauze v. CBS Corp., 340 F. Supp. 3d 186, 214 (E.D.N.Y. 2018).

Defendants argue that they are entitled to summary

judgment on plaintiffs’ hostile work environment claims because

the only remarks that touched on a protected characteristic

(Grant’s “China girl” and roach comments in September 2013 and

Kouril’s “crazy” comment in May 2015), were sporadic and

episodic. (Mem. at 21-22.) Defendants argue that the letters

in plaintiff’s file and the unsatisfactory rating are not

sufficient to establish a hostile work environment. (Id. at

22.) They further assert that plaintiff’s conflicts with Grant

do not support a hostile working environment because they were

based on personality conflicts, rather than animus based on a

protected characteristic. (Id. at 23.)

Plaintiff argues that the totality of the

circumstances includes not only the three remarks, but also

Ficalora’s failure to investigate, address, and report the

remarks. (Opp. at 23.) Plaintiff also contends that Ficalora

failed to investigate the various events involving plaintiff and

did not take her claims seriously. (Id. at 23-25.) Plaintiff

argues that there is evidence from which a jury could find that

her conflicts with Grant were based on Grant’s hostility related

to plaintiff’s race and national origin. (Id. at 23-24.)

Plaintiff argues that she suffered concerted and ongoing

harassment by Grant and Ficalora because Ficalora did not punish

Grant for her September 2013 comments and because Ficalora

insufficiently investigated their future conflicts. (Id. at

24.) Plaintiff also notes that all of these events affected her

work performance, leading to her medical issues and request for

a transfer. (Id. at 25.)

Plaintiff provides evidence of only four isolated

incidents which reference a protected category: Grant’s two

offensive comments regarding Chinese people in September 2013,

Kouril’s sole offensive comment about mentally challenged

individuals in May 2015, and Levitan’s inappropriate question

regarding the race or ethnicity of plaintiff’s doctors. None of

these incidents alone, or in combination, is severe enough to

establish a hostile working environment. They were sporadic

events involving offensive and insensitive comments.

Plaintiff does not provide evidence that any of her

disputes with Grant, after Grant’s first two offensive comments,

were related to race or another protected characteristic, and

testified that Grant did not make any comments based on her race

or national origin during the 2012-13 school year after those

two incidents. (Pl. Counterstatement ¶ 18.) Furthermore,

plaintiff rejected the characterization of her conflicts with

Grant as “constant,” highlighting that there were “three

incidents over a period of time.” (Pl. Counterstatement ¶ 57.)

No jury could conclude that plaintiff was subjected to

continuous and concerted hostility based on the record before

the court.

Plaintiff takes issue with the disciplinary letters

and unsatisfactory rating she received, but the undisputed

record establishes that Ficalora first investigated the

complaints before issuing the disciplinary letters and

unsatisfactory rating. Plaintiff’s disagreement with Ficalora’s

methods and conclusions does not establish the existence of a

hostile working environment. Plaintiff’s belief that she was

without fault is not evidence that she was subjected to hostile

conduct on the basis of a protected ground. “To prove a hostile

work environment claim . . ., a plaintiff must show that [her]

‘workplace is permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to

alter the conditions of the victim's employment and create an

abusive working environment.’” Wiercinski v. Mangia 57, Inc.,

787 F.3d 106, 113 (2d Cir. 2015) (citing Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21 (1993)). In the light most

favorable to the plaintiff and under a totality of the

circumstances, plaintiff has not demonstrated a sufficiently

hostile and pervasive environment.

Defendants are entitled to summary judgment on

plaintiff’s federal and state hostile working environment

claims.

IV. Retaliation

The court considers plaintiff’s retaliation claim

based on events after April 24, 2015.

Federal and state retaliation claims are also governed

by the McDonnell Douglas framework. Zann Kwan v. Andalex Grp.

LLC, 737 F.3d 834, 843 (2d Cir. 2013). To establish a prima

facie case of retaliation, a plaintiff must show (1)

participation in a protected activity; (2) the defendant's

knowledge of the protected activity; (3) an adverse employment

action; and (4) a causal connection between the protected

activity and the adverse employment action. Id. at 844. Once

the plaintiff establishes a prima facie showing, the burden

shifts to the employer to articulate some legitimate, non-

retaliatory reason for the employment action. Id. at 845

(citing United States v. Brennan, 650 F.3d 65, 93 (2d Cir.

2011). After a non-retaliatory reason has been articulated, the

presumption of retaliation drops, and the plaintiff must then

demonstrate the non-retaliatory reason is a mere pretext for

retaliation. (Id.)

A plaintiff “alleging retaliation in violation of

Title VII must show that retaliation was a ‘but-for’ cause of

the adverse action, and not simply a ‘substantial’ or

‘motivating’ factor in the employer's decision.” Id. (citing

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360

(2013)). This does not require proof that retaliation was the

only cause for the employer’s action, but that the adverse

action would not have occurred absent the retaliatory motive.

Id. at 846. “A plaintiff may prove that retaliation was a but-

for cause of an adverse employment action by demonstrating

weaknesses, implausibilities, inconsistencies, or contradictions

in the employer's proffered legitimate, nonretaliatory reasons

for its action.” Id.

“The temporal proximity of events may give rise to an

inference of retaliation for the purposes of establishing a

prima facie case of retaliation under Title VII, but without

more, such temporal proximity is insufficient to satisfy

appellant's burden to bring forward some evidence of pretext.”

El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.

2010). “[E]mployer actions prohibited by Title VII's anti-

discrimination provision are limited to conduct that affects the

terms and conditions of employment, while under Title VII's

anti-retaliation provision, the challenged action need not

affect the terms and condition of employment in order to

constitute unlawful retaliation.” Siddiqi v. New York City

Health & Hosps. Corp., 572 F. Supp. 2d 353, 372 (S.D.N.Y. 2008)

(citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,

63-64 (2006)). “[F]or the purposes of a retaliation claim, bad

performance reviews are an adverse employment action.” Id.

There is no dispute that the defendants were aware of

plaintiff’s complaints regarding Grant and her SDHR complaint,

the filing of which is a protected activity. Plaintiff received

her unsatisfactory performance rating after April 24, 2015. In

the retaliation context, this suffices as an adverse employment

action. Plaintiff was also ultimately declared not fit to work

in April 2016.

Defendants have articulated legitimate, non-

retaliatory reasons for plaintiff’s unsatisfactory performance

evaluation and the circumstances under which her employment

ceased. As discussed above, the unsatisfactory rating was based

on a litany of plaintiff’s activities, including physical

altercations with students. (See ECF No. 31-21, Ex. U.)

Plaintiff’s lack of fitness was determined by a medical exam

that confirmed what plaintiff’s own doctor had already

concluded, after she had left the school over 90 days earlier.

The medical finding did not itself cause her to be removed from

her position because she had already left, but it retroactively

approved plaintiff’s ongoing absence. The medical evaluation

was ordered after plaintiff abandoned her post and after she

inspired concern among school employees. (ECF No. 38-2, Ex. B.)

Plaintiff has offered no proof that her ultimate termination

would not have occurred absent her filing of the SDHR complaint.

Plaintiff’s contends that the retaliation began not

after she complained to Ficalora in October 2013 or filed her

SDHR complaint in April 2014, but after the SDHR concluded its

investigation in September 2014. (Opp. at 24-25.) This

temporal proximity, without more, cannot establish pretext.

Defendants are entitled to summary judgment on

plaintiff’s retaliation claims under Title VII and the NYSHRL.

V. Discrimination, Retaliation, and Hostile Work Environment

under the NYCHRL

The NYCHRL makes it “unlawful for an employer or an

employee or agent thereof” to discharge an employee based on,

inter alia, the employee's race or national origin. N.Y.C.

Admin. Code § 8–107(1)(a). It is also unlawful to discriminate

against such person in “terms, conditions or privileges of

employment.” Id.

Under the NYCHRL, “an employer is strictly liable for

the unlawful harassment of employees by their supervisors or

managers, regardless of whether the harassment culminates in a

tangible employment action,” and individual employees may also

be held liable “if they actually participated in the conduct

giving rise to the discrimination claim.” Dillon v. Ned Mgmt.,

Inc., 85 F. Supp. 3d 639, 657, 658 (E.D.N.Y. 2015).

Although the NYCHRL was formerly construed to be

coextensive with its federal and state counterparts, the law was

amended in 2005 and requires an independent analysis as amended.

Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102,

109 (2d Cir. 2013). Courts must construe the NYCHRL’s

provisions “broadly in favor of discrimination plaintiffs, to

the extent that such a construction is reasonably possible[.]”

Id. (citing Albunio v. City of New York, 16 N.Y.3d 472, 477-78

(2011)). “[E]ven if the challenged conduct is not actionable

under federal and state law, federal courts must consider

separately whether it is actionable under the broader New York

City standards.” Id.

Courts should consider the totality of the

circumstances “because the overall context in which the

challenged conduct occurs cannot be ignored.” Id. at 113

(citation and internal quotation marks omitted). The NYCHRL is

not a general civility code, and a defendant is not liable if

the plaintiff fails to prove the conduct is caused at least in

part by discriminatory or retaliatory motives, or if the

defendant proves the conduct was nothing more than petty slights

or trivial inconveniences. Id. (citations omitted). Although a

court may still dismiss truly insubstantial cases, even a single

comment may be actionable in the proper context. Id. (citation

omitted). “[S]ummary judgment is still appropriate in NYCHRL

cases, but only if the record establishes as a matter of law

that a reasonable jury could not find the employer liable under

any theory.” Id. (citation omitted).

“New York courts seeking to heed the [broad

construction] command have approached discrimination and

retaliation claims under a similar framework. In both

situations, the plaintiff must establish a prima facie case, and

the defendant then has the opportunity to offer legitimate

reasons for its actions.” Ya-Chen Chen v. City Univ. of New

York, 805 F.3d 59, 75–76 (2d Cir. 2015). “If the defendant

satisfies that burden, summary judgment is appropriate if no

reasonable jury could conclude either that the defendant's

‘reasons were pretextual,’ . . . or that the defendant's stated

reasons were not its sole basis for taking action, and that its

conduct was based at least ‘in part on discrimination[.]’” Id.

(citations omitted).

“NYCHRL's retaliation provision is broader than Title

VII's[,] protecting plaintiffs who ‘oppos[e] any practice

forbidden under’ the law from conduct ‘reasonably likely to

deter a person engaging in such action.’” Id. at 76 (citing

Mihalik, 715 F.3d at 112). “While the NYCHRL has a less

demanding standard [for retaliation], a ‘plaintiff still must

establish that there was a causal connection between [her]

protected activity and the employer's subsequent action, and

must show that a defendant's legitimate reason for [her]

termination was pretextual or motivated at least in part by an

impermissible motive.’” Hughes v. Twenty-First Century Fox,

Inc., 304 F. Supp. 3d 429, 449 (S.D.N.Y. 2018) (citation

omitted).

Plaintiff’s career ended not as a result of her filing

a complaint with the New York State Division of Human Rights,

but after she left her employment and after two medical

examinations, one by her psychiatrist and one requested by

Ficalora, found that she was unable to work due to her illness.

Moreover, plaintiff’s career ended after plaintiff had abandoned

her post, was involved in physical altercations with students,

and engaged in behavior that alarmed several of her co-workers,

including employees who are not defendants in this action.

Plaintiff has not offered evidence establishing that the reason

for termination was pretextual or motivated, even in part, by an

impermissible motive, and no reasonable jury could conclude

otherwise.

“Hostile work environment claims are analyzed under

the same provision of the NYCHRL as discrimination claims.”

Sotomayor v. City of New York, 862 F. Supp. 2d 226, 261

(E.D.N.Y. 2012), aff'd, 713 F.3d 163 (2d Cir. 2013). “Under the

NYCHRL, defendants' discriminatory conduct need not be severe or

pervasive to create an actionable hostile work environment[,]”

and the relevant question is “whether there is a triable issue

of fact as to whether the plaintiff has been treated less well

than other employees because of her race [or] national origin.”

Id. (citation and internal quotation marks omitted).

Defendants can avoid liability under the NYCHRL by

proving that the conduct complained of “consists of nothing more

than what a reasonable victim of discrimination would consider

petty slights and trivial inconveniences.” Id. (citation and

internal quotation marks omitted). “Isolated incidents of

unwelcome verbal and physical conduct have been found to

constitute the type of ‘petty slights and trivial

inconveniences’ that are not actionable even under the more

liberal NYCHRL standard.” Russo v. New York Presbyterian Hosp.,

972 F. Supp. 2d 429, 450 (E.D.N.Y. 2013)

Although letters to file and evaluations do not rise

to the level of materially adverse employment actions, they are

more than petty or trivial. Sotomayor, 862 F. Supp. 2d at 258.

But here, plaintiff has not created a triable issue of fact as

to whether she was treated less well than other employees.

Regarding plaintiff’s disputes with Grant, plaintiff was warned

about her behavior when Ficalora concluded that she was at

fault, just as Ficalora directed Grant to refrain from using

racially inappropriate language when Ficalora credited

plaintiff’s accusations. Plaintiff has not provided evidence

that other employees had physical altercations with students and

failed to receive corporal punishment charges. Plaintiff also

has not offered evidence that other teachers with a history of

missing appointments and engaging in corporal punishment failed

to receive an unsatisfactory rating.

Kouril’s statement to plaintiff was an isolated

incident. Moreover, plaintiff concedes that Kouril was not

aware of her diagnosis, so it was not tied to a protected

characteristic.

For the foregoing reasons, defendants are granted

summary judgment on plaintiff’s discrimination, retaliation, and

hostile work environment claims under the NYCHRL.

VI. Disability Discrimination in Violation of the ADA, NYSHRL &

NYCHRL

“Claims alleging disability discrimination in

violation of the ADA are subject to the burden-shifting analysis

originally established by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973).” McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92,

96 (2d Cir.2009). “A plaintiff must establish a prima facie

case; the employer must offer through the introduction of

admissible evidence a legitimate non-discriminatory reason for

the discharge; and the plaintiff must then produce evidence and

carry the burden of persuasion that the proffered reason is a

pretext.” Id. (citing Sista v. CDC Ixis N. Am., Inc., 445 F.3d

161, 169 (2d Cir. 2006)).

“Discrimination in violation of the ADA

includes, inter alia, ‘not making reasonable accommodations to

the known physical or mental limitations of an otherwise

qualified individual with a disability.’” Id. (citing 42 U.S.C.

§ 12112(b)(5)(A)). A plaintiff makes a prima facie case for

failure to accommodate by showing that (1) plaintiff is a person

with a disability under the meaning of the ADA; (2) the employer

subject to the statute had notice of plaintiff’s disability; (3)

with reasonable accommodation, plaintiff could perform the

essential functions of the job at issue; and (4) the employer

refused to make such an accommodation. Id. at 96-97. “Once a

plaintiff has established a prima facie case, the burden shifts

to the defendant to show ‘(1) that making a reasonable

accommodation would cause it hardship, and (2) that the hardship

would be undue.’” Krachenfels v. N. Shore Long Island Jewish

Health Sys., 2014 WL 3867560, at *11 (E.D.N.Y. July 29, 2014)

(citing Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d

1, 6 (2d Cir. 1999)).

“The ADA envisions an interactive process by which

employers and employees work together to assess whether an

employee's disability can be reasonably accommodated.” Jackan

v. New York State Dep't of Labor, 205 F.3d 562, 566 (2d Cir.

2000) (internal quotation marks omitted). “[A]n ADA plaintiff

complaining of [her] employer's failure to provide a reasonable

accommodation, bears both the burden of production and the

burden of persuasion on the question whether a suitable vacancy

existed at the time [she] sought transfer.” Id. at 567. A

plaintiff “does not satisfy her burden to identify a potential

accommodation merely by reciting the formula that her employer

could have reassigned her,” and instead “must demonstrate the

existence, at or around the time when accommodation was sought,

of an existing vacant position to which she could have been

reassigned.” McBride, 583 F.3d at 97-98. “[A]n employee may

not recover based on [her] employer's failure to engage in an

interactive process if [she] cannot show that a reasonable

accommodation existed at the time of [her] dismissal.” McElwee

v. Cty. of Orange, 700 F.3d 635, 642 (2d Cir. 2012).

“[T]he employer's decision to engage in or forgo an

interactive process is but one factor to be considered in

deciding whether a reasonable accommodation was available for

the employee's disability at the time the employee sought

accommodation.” Jacobsen v. New York City Health & Hosps.

Corp., 22 N.Y.3d 824, 838 (2014). “Without having participated

in [the interactive] process in response to the employee's

request, the employer cannot prevent the employee from bringing

a State HRL claim to trial on the reasonable accommodation

issue, but on the other hand, the employee cannot obtain a

favorable jury verdict or summary judgment solely based on the

employer's failure to engage in an interactive process.” Id.

The parties do not dispute that plaintiff had a

disability and that the defendants were aware of it.

Plaintiff’s accommodation request for a transfer was denied

twice. Plaintiff testified in her deposition that she was aware

of other openings, even if not specifically in Queens, and that

she had applied for positions. Plaintiff has established a

prima facie case for her failure to accommodate claims under the

ADA and NYSHRL. Defendants have not demonstrated that granting

a transfer would have caused an undue hardship. Furthermore,

there is no evidence in the record that defendants engaged in an

interactive process regarding plaintiff’s accommodation request.

Defendants are denied summary judgment on the federal and state

failure to accommodate claims.

“[U]nlike the State HRL, the City HRL places the

burden on the employer to show the unavailability of any safe

and reasonable accommodation and to show that any proposed

accommodation would place an undue hardship on its business.”

Id. at 835. “[B]ecause the City HRL provides broader

protections against disability discrimination than the State

HRL, the City HRL unquestionably . . . forecloses summary

judgment where the employer has not engaged in a good faith

interactive process regarding a specifically requested

accommodation.” Id. at 837-38.

Defendants have not demonstrated the unavailability of

a safe and reasonable accommodation or shown that a transfer

would have caused an undue hardship. Defendants are denied

summary judgment on the plaintiff’s failure to accommodate

claims under the NYCHRL, NYSHRL, and ADA.

CONCLUSION

For the foregoing reasons, the court grants

defendants’ motion for summary judgment regarding plaintiff’s

claims of discrimination on the basis of race and national

origin, hostile work environment, and retaliation under federal

law, state law, and the NYCHRL. The court denies defendants’

motion regarding plaintiff’s failure to accommodate claims. The

parties are directed to file a status letter 30 days after this

order is entered and should inform the court whether they wish

to proceed to trial or a settlement conference.

SO ORDERED.

Dated: September 27, 2019

Brooklyn, New York

_________/s/_________________

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York