Chalfen v. The East Williston Union Free School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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

MICHELLE CHALFEN,

Plaintiff, ADOPTION ORDER

19-CV-7170(JS)(ARL)

-against-

THE EAST WILLISTON UNION FREE

SCHOOL DISTRICT; THE BOARD OF

EDUCATION OF THE EAST WILLISTON

UNION FREE SCHOOL DISTRICT;

DR. LYNN MAZZA, individually and

in her official capacity; and

DR. DANIELLE GATELY, individually

and in her official capacity,

Defendants.

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APPEARANCES

For Plaintiffs: Gabrielle Vinci, Esq.

Nesenoff & Miltenberg, LLP

363 Seventh Avenue, Fifth Floor

New York, New York 10001

For Defendants: Steven Stern, Esq.

Sokoloff Stern LLP

179 Westbury Avenue

Carle Place, New York 11514

SEYBERT, District Judge:

Plaintiff Michelle Chalfen (“Plaintiff”) commenced this

action against the East Williston Union Free School District (the

“School District”), the Board of Education of the East Williston

Union Free School District, Dr. Lynn Mazza, individually and in her

official capacity (“Dr. Mazza”), and Dr. Danielle Gately,

individually and in her official capacity (“Dr. Gately”)

(hereafter, collectively, the “Defendants”), asserting claims of:

religious discrimination, pursuant to Title VII of the Civil Rights

Act of 1964 (hereafter, “Title VII”) and New York State Human Rights

Law (“NYSHRL”); age discrimination, pursuant to the Age

Discrimination in Employment Act (“ADEA”) and the NYSHRL; and a

hostile work environment.1 (See generally Am. Compl., ECF No. 39.)

Defendants moved for summary judgment in their favor

(hereafter, the “Summary Judgment Motion”) (see ECF No. 62; see

also Support Memo, ECF No. 55), which Plaintiff opposed (see ECF

No. 68). The Summary Judgment Motion was referred to Magistrate

Judge Arlene R. Lindsay for a report and recommendation. Currently

before the Court is the Magistrate Judge’s February 27, 2023 Report

and Recommendation (“R&R”) (ECF No. 75) recommending the granting

of Defendants’ Summary Judgment Motion, together with Plaintiff’s

objections (ECF No. 76), and Defendants’ response (ECF No. 77).

For the reasons stated herein, the Court ADOPTS the R&R as to all

of Plaintiff’s remaining claims, and grants Defendants’ Summary

Judgment Motion.

1 Plaintiff withdrew her age and religious discrimination claims

brought pursuant to Section 1983. (See Pl.’s Opp’n, ECF No. 68,

at 5 n.1 (“Following review of the record and Defendants’ [Summary

Judgment] Motion, Plaintiff hereby withdraws her claims brought

pursuant to 42 U.S.C. § 1983.”).) Plaintiff has not raised any

objections to the Magistrate Judge’s recommendations regarding

these claims, and this Court does not consider said

recommendations.

BACKGROUND

I. Factual Background

The Court presumes the parties’ familiarity with the

factual background giving rise to this action as set forth in

Magistrate Judge Lindsay’s R&R and incorporates her recitation

herein by reference. (See R&R at 3-17.) The Court recites only

those facts necessary to provide context to the reader in

understanding this Order.

Plaintiff contends that, after three years as a special

education teacher during which time she was repeatedly commended

for her superior skills as an educator and for her dedication shown

to her students, in her fourth probationary year teaching and

seemingly out of nowhere, she was suddenly harshly scrutinized for

her job performance, which Plaintiff asserts is similar to the

School District’s treatment of other Jewish and/or older

employees, faculty, and staff. She maintains that despite her

numerous attempts to determine the source of Defendants’ sudden

criticisms of her, Plaintiff was left without any sufficient

justification for her superiors’ turn of opinion against her.

Instead, according to Plaintiff, like many of her Jewish and/or

older aged colleagues, the School District denied Plaintiff tenure

and terminated her employment.

Defendants counter that Plaintiff’s entire case is based

on her unsubstantiated speculation that her age or religion must

have played a role in her termination because she had received

largely positive feedback for much of her probationary period.

Plaintiff further bases her case upon her non-evidentiary-

supported belief that a few other employees or contractors were at

other times mistreated in some fashion, who she believes -- but is

not certain -- are Jewish because of their last names, and that

most are over 40 years old. However, Defendants maintain tenure

decisions are made based upon a teacher’s performance assessed

over the entire four-year probation period, with school districts

erring on the side of declining tenure where there exists any doubt

regarding a teacher’s performance. Similarly, Plaintiff has not

presented any evidence that would support a hostile work

environment claim. Thus, in the absence of anyone ever making any

discriminatory comments or engaging in discriminatory conduct

towards Plaintiff, Defendants moved for summary judgment.

II. Judge Lindsay’s Report & Recommendation

Magistrate Judge Lindsay’s R&R is based upon a largely

uncontested record (see R&R at 3), which, significantly, includes

the following.

Plaintiff has never personally heard Dr.

Mazza, Dr. Gately or Dr. Kanas[2] say anything

disparaging about the Jewish religion.

Plaintiff has never been told by others that

. . . Dr. Mazza, Dr. Gately, or Dr. Kanas ever

said anything disparaging about Jewish people.

2 During the relevant time period, non-party Dr. Kanas was the

School District’s Superintendent. (See R&R at 3.)

Plaintiff candidly admits that she has never

heard any administrators in the District speak

disparagingly about Jewish people and no one

in Plaintiff’s union ever suggested that her

religion may have played a role in her not

being recommended for tenure. Indeed,

Plaintiff does not have any specific evidence

that Dr. Mazza, Dr. Gately or anyone else in

the District discriminated against her on

account of religion (or age), but rather

believes there was a pattern of older Jewish

employees who were either terminated or

something negative happening to them.

Plaintiff lists the following

individuals that she believes evidence this

pattern: Shari Senzer, Jeffrey Lesser, Greg

Wasserman, Justine Meyer, Susan Checkla,

Stephen Kimmel, and Karen Stein. However,

other than Shari Senzer, . . . Plaintiff does

not know the religion of any of the

individuals listed.

***

Plaintiff admits that no one in the

District expressed any hostility on account of

Plaintiff’s age or religion and that Plaintiff

never complained to the District that she was

being treated unfairly on account of her

religion. Defendants point out, and Plaintiff

acknowledges, that the District has tenured

Jewish faculty, however, the District does not

solicit or maintain records of the religions

of its employees. Plaintiff has offered no

statistics demonstrating that Jewish teachers

were terminated at a different rate than non-

Jewish teachers. While Plaintiff bases her

belief o[f] a pattern on the surnames of the

aforementioned employees, many of the surnames

of District’s teachers and administrators also

sound Jewish.

Similarly, Plaintiff has provided no

evidence of age discrimination. Plaintiff was

46-years old when she was hired. Nobody in

the District expressed any hostility on

account of Plaintiff’s age, and nobody in

Plaintiff’s union ever suggested that her age

may have played a role in her not being

recommended for tenure. Plaintiff never

complained to the District that she was being

treated unfairly on account of her age.

Plaintiff has not offered any statistical

analysis to suggest older teachers were

terminated at any different rate than younger

teachers.

(R&R at 14, 17 (citations omitted).)

Thus, as to Plaintiff’s claims under Title VII and the

ADEA,3 Magistrate Judge found “Plaintiff has failed to

prove . . . that her termination was pretextual, based in whole

or in part on discrimination, or that discrimination was a ‘but-

for’ cause of her termination. Plaintiff has failed to show that

discrimination on the basis of religion or age was even the

smallest factor in her termination.” (R&R at 33.) Further, as to

Plaintiff’s hostile work environment claim, Magistrate Judge

Lindsay found “[t]here is no evidence that Plaintiff was subjected

to even a single episode of objectively abusive or hostile

comments, ridicule, or insults, let alone with physical threats,

frequency, or severity necessary to rise to the level of a hostile

work environment.” (Id. at 35 (“There are no instances of anyone

ever saying or doing anything that was in any way indicative of

age or religious discrimination.”).)

3 The Magistrate Judge noted religious discrimination claims

brought pursuant to the NYSHRL are analyzed under the same standard

as claims brought pursuant to Title VII, and age discrimination

claims brought pursuant to the NYSHRL are analyzed under the same

standard as claims brought pursuant to the ADEA. (See R&R at 26

n.5.)

DISCUSSION

I. Legal Standard

A district court “may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate

judge.” 28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).

The district judge must evaluate proper objections de novo;

however, where a party “makes only conclusory or general

objections, or simply reiterates [the] original arguments, the

Court reviews the Report and Recommendation only for clear error.”

Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008)

(quoting Barratt v. Joie, No. 96–CV–0324, 2002 WL 335014, at *1

(S.D.N.Y. Mar. 4, 2002)); see also FED. R. CIV. P. 72(b)(3); Thomas

v. City of N.Y., Nos. 14-CV-7513, 16-CV-4224, 2019 WL 3491486, at

*4 (E.D.N.Y. July 31, 2019) (“Objections seeking to relitigate

arguments rejected by the magistrate judge do not constitute proper

objections, and, as a result, are subject to clear error review.”).

Further, “[i]n this district and circuit, it is established law

that a district judge will not consider new arguments raised in

objections to a magistrate judge’s report and recommendation that

could have been raised before the magistrate but were not.”

Trustees of Metal Polishers Local 8A–28A Funds v. Nu Look Inc.,

No. 18-CV-3816, 2020 WL 5793204, at *3 (E.D.N.Y. Sept. 29, 2020)

(quoting Illis v. Artus, No. 06-CV-3077, 2009 WL 2730870, at *1

(E.D.N.Y. Aug. 28, 2009) (cleaned up; collecting cases)).

II. Analysis

A. Plaintiff’s Objections

“For the reasons set forth in [her] original briefing,”

“Plaintiff respectfully objects to Magistrate Lindsay’s findings

that (i) Plaintiff has failed to show an inference of

discrimination or that Defendants’ decision to terminate

Plaintiff’s employment was pretextual and (ii) Plaintiff failed to

demonstrate that she was subjected to a hostile work environment.”

(Obj. at 1; see also id. at 6, 9, 11 (relying upon arguments made

in Plaintiff’s Opposition brief in support of her for objections).)

Moreover, Plaintiff contends the Magistrate Judge erroneously

“misapplied the summary judgment standard and held [her] to a

higher standard of proof than is appropriate at the summary

judgment stage.” (Id. at 2.)

In response, Defendants assert “Plaintiff’s objections

should be reviewed for ‘clear error’ because she restated the same

arguments that were already rejected by the Court.” (Resp. at 1.)

They further maintain that even under de novo review, the R&R

should stand. (See id.) Thus, regardless of standard of review

employed by the Court, “Plaintiff’s unsupported assertions are not

only insufficient to show discrimination, but she does not support

them here with any evidence, and the actual evidence debunks them.”

(Id.) For the reasons articulated below, the Court agrees and

adopts the R&R.

B. Consideration of Plaintiff’s Objections

The Court begins with Plaintiff’s misapplication

objection.

1. The Alleged Inappropriate Standard

Plaintiff argues that “a plaintiff need not prove that

she will prevail at trial on her claims, she need only show that

there are disputed issues of fact so that she could win at trial.”

(Obj. at 3 (citing Jeffreys v. City of N.Y., 426 F.3d 549 (2d Cir.

2005)).) True. See, e.g., Jamaica Ash & Rubbish v. Ferguson, 85

F. Supp. 2d 174, 180 (E.D.N.Y. 2000) (“[T]here must exist ‘specific

facts showing that there is a genuine issue for trial’ in order to

deny summary judgment as to a particular claim.” (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986))). However, as

Magistrate Judge Lindsay corrected stated, Plaintiff failed to

present evidence showing disputed issues of fact requiring a trial.

Cf., e.g., Granica v. Town of Hamburg, 237 F. Supp. 3d 60, 74-75

(W.D.N.Y. 2017) (regarding ADEA claim, discussing McDonnell

Douglas burden-shifting analysis, and stating that where employer-

defendant presents legitimate, non-discriminatory reason for its

action, “[t]he burden shifts back to the plaintiff” and that “to

survive a motion for summary judgment, the plaintiff must present

both sufficient evidence that the purported non-discriminatory

reason was false and evidence that age was the but-for cause of

the adverse actions”); Brierly v. Deer Park Union Free Sch. Dist.,

359 F. Supp. 2d 275, 297-98 (regarding Title VII discrimination

claim, discussing McDonnell Douglas burden-shifting analysis, and

granting summary judgment in employer’s favor where – upon

presumption plaintiff made out a prima facie case of discrimination

-- plaintiff “offered nothing to indicate that [employer’s] non-

discriminatory explanations are pretextual”). In advancing her

objection here, Plaintiff does the same: She baldly asserts that

the Magistrate Judge “failed to take into account record evidence

highlighting disputes of material fact which may only be resolved

by the jury.” (Obj. at 3 (without citation to any record

evidence).) However, it is “not the role of the Court to search

the summary judgment record for evidence supporting a nonmovant’s

opposition.” Patacca v. CSC Holdings, LLC., No. 16-CV-0679, 2019

WL 1676001, at *17 (E.D.N.Y. Apr. 17, 2019) (citations omitted);

see also Pennington v. D’Ippolito, 855 F. App’x 779, 782 (2d Cir.

2021) (stating that “in ruling on a summary judgment motion[,] the

court need consider only the cited materials in the parties’

submissions.” (internal citations and alterations omitted)); FED.

R. CIV. P. 56(c)(3). Thus, because this objection fails to disclose

any error, it is OVERRULED.

2. Plaintiff’s Age and Religious Discrimination Claims

Plaintiff’s objection regarding the Magistrate Judge’s

recommendation that Plaintiff’s age and religious discrimination

claims be dismissed is subject to clear-error review as her

arguments are a regurgitation of her original arguments raised in

opposition to the Summary Judgment Motion. (See Obj. at 6 (“as

noted in Plaintiff’s underlying opposition brief . . . “); -se-e- -id-.-

at 9 (“As discussed in Plaintiff’s underlying memorandum of law in

opposition to Defendants’ Motion for Summary Judgment . . . .”);

cf. Opp’n at 12.) Upon careful review of the record and Magistrate

Judge Lindsay’s R&R, the Court finds no such error. Indeed, just

as Plaintiff failed to substantiate her arguments in opposition to

the Summary Judgment Motion with specific citation to record

evidence showing a disputed issue of material fact that would

preclude granting summary judgment, here, in her Objection,

Plaintiff baldly contends she has “deduced sufficient evidence of

a longstanding pattern and practice” of discrimination against

older and/or Jewish employees. (Obj. at 9.) And, her argument

that “Defendants failed to give sufficient examples of the alleged

deficiencies in Plaintiff’s performance when asked to do so,” (id.)

is belied by the R&R’s recitation of specific evidence to the

contrary. (Cf. R&R at 12-13 (citing Dr. Kanas’ May 13, 2019 letter

to Plaintiff, providing eight reasons that support recommendation

against tenure).) In the absence of identifying any specific

evidence in the record that would call into dispute the Defendants’

reasons for denying Plaintiff tenure, which did not demonstrate

any discriminatory intent, Plaintiff has failed to show how

Magistrate Judge Lindsay’s recommendation to dismiss Plaintiff’s

age and religious discrimination claims is clearly erroneous.

Thus, this objection is OVERRULED.

3. Plaintiff’s Hostile Work Environment Claim

Again, relying upon her arguments initially raised in

her Opposition (see Obj. at 9 (“[a]s discussed in Plaintiff’s

underlying memorandum of law in opposition to Defendants’ Motion

for Summary Judgment . . . ”), Plaintiff baldly contends she “was

subjected to repeated and scathing ridicule, and repeatedly

summoned into meetings with Dr. Mazza and Dr. Gately for the sole

purpose of berating Plaintiff and repeatedly telling Plaintiff to

resign from her position in lieu of being terminated,” which

“caused [her] to miss work due to anxiety . . . .” (Obj. at 11.)

From this unsubstantiated assertion, Plaintiff argues “a

reasonable juror could conclude that Plaintiff was subjected to a

hostile work environment,” thereby making Magistrate Judge

Lindsay’s recommendation wrong. (Id.) Not so. As the Magistrate

Judge correctly stated after exhaustively reviewing the record and

finding Plaintiff failed to identify any facts demonstrating

conduct that could be considered discriminatorily hostile:

there is no factual support for th[e]

allegation [of a pattern and practice of

discriminating against Jewish and/or older

people] and therefore she has failed to raise

a genuine issue of fact that she suffered an

objectively hostile work environment on the

basis of her religion or age. There are no

instances of anyone ever saying or doing

anything that was in any way indicative of age

or religious discrimination.

(R&R at 35; see also id. at 34 (“[A]s noted by Defendants,

‘Plaintiff does not allege a single incident of age or religious-

based hostility. On the contrary, she admits she has never heard

Dr. Mazza, Dr. Gately, Dr. Kanas, or anyone else say anything

disparaging about age or Judaism.’” (citing Defs.’ Support Memo at

20 (citing Ex. B at pp. 35, 164-65; Ex. C at pp. 82-84))).) Indeed,

as Defendants asserted, even if it is true that Plaintiff was

repeatedly summoned to meetings with Drs. Mazza and Gately for the

sole purpose of berating Plaintiff and telling her to resign in

lieu of being terminated, “nothing about it suggests a

discriminatory hostile work environment on account of age or

religion.” (Reply, ECF No. 72, at 8.) Thus, in the absence of

evidence that creates a genuine issue of material fact, the

Magistrate Judge was correct to recommend Defendants are entitled

to summary judgment as to Plaintiff’s hostile work environment

claim.

To the extent not specifically addressed, the Court has

considered Plaintiff’s remaining arguments in support of her

objections, but finds them unpersuasive. Finding no error -- clear

or otherwise -- in Magistrate Judge Lindsay’s R&R, Plaintiff’s

objections are OVERRULED as to all of Plaintiff’s remaining claims.

CONCLUSION

For the stated reasons, IT IS HEREBY ORDERED that:

I. Plaintiff’s objections are OVERRULED;

II. The R&R is ADOPTED as to all of Plaintiff’s remaining claims;

III. Defendants’ Summary Judgment Motion (ECF No. 62) is GRANTED;

and

IV. The Clerk of Court enter judgment accordingly and,

thereafter, mark this case CLOSED.

SO ORDERED.

/s/_JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: March 29, 2023

Central Islip, New York