Bertuzzi v. Copiague Union Free School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ROSARY BERTUZZI,

Plaintiff, MEMORANDUM & ORDER

17-CV-4256 (JS)(ARL)

-against-

FILED

COPIAGUE UNION FREE SCHOOL CLERK

DISTRICT; BOARD OF EDUCATION OF 9/25/2023 10:  43 am

COPIAGUE UNION FREE SCHOOL

DISTRICT; DR. KATHLEEN BANNON, U.S. DISTRICT COURT

TODD ANDREWS; MICHELLE BUDION EASTERN DISTRICT OF NEW YORK

individually, and as aiders and LONG ISLAND OFFICE

abettors,

Defendants.

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APPEARANCES

For Plaintiff: Howard E. Gilbert, Esq.

Jason A. Gilbert, Esq.

Gilbert Law Group

425 Broadhollow Road, Suite 405

Melville, New York 11747-4701

For Defendants: Caroline Beth Lineen, Esq.

Karen Chana Rudnicki, Esq.

Lewis R. Silverman, Esq.

Silverman & Associates

445 Hamilton Avenue, Suite 1102

White Plains, New York 10601

SEYBERT, District Judge:

Rosary Bertuzzi (“Plaintiff” or “Bertuzzi”), a teacher,

asserts claims pursuant to the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq. and New York State Human Rights

Law (“NYSHRL”), N.Y. EXEC. L. § 297 et seq., against Copiague Union

Free School District (the “District”), the Board of Education of

the Copiague Union Free School District (the “BOE”),

Superintendent Kathleen Bannon (“Bannon”), Assistant

Superintendent for Human Resources Todd Andrews (“Andrews”), and

District Coordinator of Foreign Language Michelle Budion

(“Budion”) (collectively, “Defendants”). (See generally Am.

Compl., ECF No. 26.) Plaintiff alleges that, during the 2015-16,

2016-17 and 2017-18 school years, Defendants violated the ADA and

NYSHRL by failing to provide her with a reasonable accommodation,

by subjecting her to disparate treatment, and by retaliating

against her.

Defendants filed a motion for summary judgment, which

the Court referred to the Honorable Arlene R. Lindsay for a Report

and Recommendation (“R&R”). (See Mot., ECF No. 104; R&R, ECF

No. 120.) In the R&R, Judge Lindsay recommends granting in part

and denying in part Defendants’ motion. She recommends dismissing

all of Plaintiff’s claims, except for her reasonable accommodation

claims related to the 2017-18 school year. (Id. at 24, 27-28.)

Defendants and Plaintiff filed timely objections, as

well as responses to each other’s objections. (Defs. Obj., ECF No.

125; Pl. Obj., ECF No. 128; Pl. Resp., ECF No. 131; Defs. Resp.,

ECF No. 132.) For the following reasons, Defendants’ objections

are SUSTAINED IN PART and OVERRULED IN PART, Plaintiff’s objections

are OVERRULED, the R&R is ADOPTED with one modification, and

Defendants’ summary judgment motion is GRANTED IN PART and DENIED

IN PART.

BACKGROUND

Judge Lindsay issued her R&R on January 30, 2023.

Neither Plaintiff nor Defendants specifically challenge the

“Background” section of the R&R. (See R&R at 1-10 (Factual

Background); 11-14 (Procedural History).) As such, the Court

incorporates herein by reference Judge Lindsay’s thorough and

comprehensive summary of the facts and posture of this case.

See Sali v. Zwanger & Pesiri Radiology Grp., LLP, No. 19-CV-0275,

2022 WL 819178, at *1 (E.D.N.Y. Mar. 18, 2022).

As a preliminary matter in the R&R, Judge Lindsay noted

Plaintiff’s non-compliance with Local Rule 56.1(b) in the

preparation of her Local Rule 56.1 Counterstatement of Facts (the

“Counterstatement”). (R&R at 15; see also Pl. 56.1 Counter Stmt.,

ECF No. 113.) “In many instances, Bertuzzi’s responses contain

lengthy factual arguments that go well beyond the statement to

which she was intended to respond. In addition, Bertuzzi’s

‘Controverted Facts’ recite many of the same arguments contained

in her Counterstatement.” (Id.) Notwithstanding, in her

discretion, Judge Lindsay did not strike the portions of the

Counterstatement that offended the Local Rules and proceeded to

her analysis of Plaintiff’s ADA and NYSHRL claims. (Id. at 16.)

First, solely as to Plaintiff’s NYSHRL claims, Judge

Lindsay rejected Defendants’ argument that such claims be

dismissed based upon Plaintiff’s failure to file a formal notice

of claim with the District in accordance with New York Education

Law (“NYEL”) § 3813(1). (Id. at 16.) “Although it is undisputed

that Bertuzzi failed to file a formal notice of

claim, . . . Bertuzzi substantially complied with § 3813 by

sending a detailed letter to the District on September 16, 2016,

in which she set forth the underlying factual basis for her state

law discrimination claims.” (Id. at 16-17.)

Next, Judge Lindsay considered the merits of Plaintiff’s

ADA and NYSHRL failure to accommodate claims. (See id. at 17-24.)

Plaintiff maintained that, starting in 2015, Defendants “refused

to provide her with a single classroom for all of her teaching and

preparation papers, despite having been able to do so for the prior

twelve years.”1 (Id. at 20.) Although Plaintiff acknowledged

Defendants assigned her “to classrooms that were in close proximity

to each other, and . . . that she never sought an accommodation

with respect to her duty periods,” she still claimed the “purported

accommodations provided to her were inadequate.” (Id.)

Notwithstanding, Judge Lindsay found Defendants’ accommodations

plainly reasonable for the 2015-16 and 2016-17 school years “given

the pedagogical concerns of the District.” (Id. at 20-21, 24.)

However, Judge Lindsay determined a genuine factual dispute exists

1 As noted in the R&R, teachers in the District have five teaching

periods, two preparation periods, one duty period, and one lunch

period. (Id. at 3.)

about whether the proposed accommodation for the 2017-18 school

year imposed an “undue hardship” upon Defendants. (Id. at 22.)

Regarding the 2015-16 school year, Plaintiff was

assigned one classroom, Room 100, “for all her teaching periods as

well as her duty period”; however, Defendants “were unable to

assign her to Room 100 for her preparation period that year”

because “it is clear that Room 100 was needed for a Spanish I

class.” (Id. at 21.) Plaintiff even “acknowledged classrooms

cannot be dedicated to teachers for prep periods when they are

needed for an instructional period.” (Id.) Moreover, Judge

Lindsay found that Plaintiff’s disability “did not completely

prevent her from moving around” because Plaintiff “routinely

walked greater distances than between two adjacent classrooms such

as when she would enter the school in the morning from the parking

lot.”2 (Id. at 21.) In addition, Plaintiff “was willing to take

duty periods in other locations in the building . . . and

occasionally opted to leave the building for lunch or to join a

colleague for lunch on the second floor,” “despite her claim that

short, repetitive movements exacerbated her condition.” (Id.)

According to Judge Lindsay, “Bertuzzi cherry-picked when to impose

her physician’s recommendations to limit her activity.” (Id.)

2 Bertuzzi’s claimed disability includes chronic intractable neck

pain from a cervical disc disorder, degenerative disc disease, and

herniated discs. (Id. at 2.)

Moving forward to the 2016-17 school year, Defendants

assigned Plaintiff “to Room 100 for four of her five teaching

periods[;] [h]owever, they were unable to assign her to Room 100

during period 1 because [it] was needed for a double period of”

English as a New Language (“ENL”). (Id.) Defendants provided

Plaintiff “with a cart to transport her personal and teaching

materials to each classroom, [and] a file cabinet to store

material.” (Id.) She was also “offered an extra set of textbooks

to store in each classroom and assistance packing up material

which . . . [D]efendants say she refused.” (Id. at 21-22.) It is

important to note that, on the first day of the 2016-17 school

year, Plaintiff injured herself tripping on a wire and only worked

six days that year. (Id. at 5, 22) Plaintiff was not cleared to

return to work until April 11, 2017, and “it would have been far

too burdensome to alter the class assignments in the middle of the

school year to accommodate [Plaintiff’s] request to work in a

single classroom” or “to create a new non-teaching assignment for

her for the remainder of the year.” (Id. at 22.)

Then, as to the 2017-18 school year, Plaintiff’s

classroom assignments were “equally split” between two rooms,

Room 102 and Room 108, which required Plaintiff “to switch

locations all nine periods.” (Id. at 22-23.) Judge Lindsay found

that Defendants failed to offer “any evidence to explain why it

would have been burdensome to provide Bertuzzi with a single

classroom that year.” (Id. at 23.) Moreover, Judge Lindsay

determined there were issues of fact as to whether Plaintiff,

Defendants, or both sides were responsible for causing a breakdown

in the interactive process. (See id. at 23-24.) Accordingly,

Judge Lindsay recommended granting Defendants’ motion regarding

the failure to accommodate claims for the 2015-16 and 2016-17

school years, and denying the motion for such claims pertaining to

the 2017-18 school year. (Id. at 24.) This partial denial of

summary judgment also caused Judge Lindsay to reject the branch of

Defendants’ motion seeking dismissal of Plaintiff’s claims against

the individual defendants since an “employee’s liability

necessarily hinges on that of the employer.” (Id. at 24 n.11

(quoting Conklin v. County of Suffolk, 859, F. Supp. 2d 415, 436

(E.D.N.Y. 2012).)

Judge Lindsay then recommended granting summary judgment

against Plaintiff’s disparate treatment and retaliation claims.

(Id. at 24-28.) Plaintiff claimed Defendants “actively worked to

assign her rooms that exacerbated her disabilities, intentionally

caused her to exhaust her sick leave and purposely assigned her a

disproportionate number of disciplinary and special needs kids.”

(Id. at 24-25.) However, Judge Lindsay found there to be “no

evidence . . . that Bertuzzi was given less favorable classroom

assignments than her non-disabled coworkers.” (Id. at 25.) There

was only one other language teacher assigned a single classroom

for all periods during 2016-17, and Bertuzzi “offered no analysis

of the classes that her colleague was teaching that year, the

number and make-up of the students assigned to her colleague’s

classes or the other language classes that had to be offered during

the same periods.” (Id.) Although “20 of the approximately 200

teachers at the school were also assigned to a single classroom at

some point during the relevant time period[,] [w]ithout more, the

fact that on occasion teachers were assigned single classrooms is

not persuasive evidence of disparate treatment.” (Id. (citation

omitted).) Judge Lindsay similarly rejected Plaintiff’s claims of

disparate treatment with respect to the District’s accounting of

her sick leave. (Id. at 25-26.) Despite being cleared to return

to work on April 11, 2017, Plaintiff stayed home and began

exhausting her accrued sick leave -- which Plaintiff claims “she

was forced to do” because she was not properly accommodated. (Id.)

Defendants later determined that “part of the accrued sick days

were covered by worker’s compensation” and restored 42 days to

her. (Id. at 26.) Then in February 2018 when Plaintiff stopped

working before her retirement, Defendants required her to use 93

accrued sick days that she was not reimbursed for because that

leave was not covered by worker’s compensation. (Id.) “[O]ther

than taking issue with the fact that she was required to use sick

time,” there is no evidence “to suggest . . . non-disabled

teachers were treated differently with respect to their own use of

sick time,” let alone a comparison. (Id.) Judge Lindsay also

found a lack of evidence to suggest Plaintiff was “assigned a

disproportionate number of disciplinary or learning disabled

students.” (Id.) The record showed that the “assignment of

classified children to language classes varied each year,” “the

number of classified students in her classes was on the lower end

of the spectrum,” and no evidence that Plaintiff was treated

differently regarding her class assignments. (See id. at 26-27.)

For those reasons, in addition to the fact that Plaintiff did “not

come forward with a shred of evidence that suggest a retaliatory

relationship between her requests for accommodations for the

2015-16 through 2017-18 school years and any purported adverse

employment action,” Judge Lindsay recommended dismissal of

Plaintiff’s disparate treatment and retaliation claims. (See id.

at 24-28.)

As a final matter, Judge Lindsay addressed Plaintiff’s

request for punitive damages against the District. (Id. at 28.)

Punitive damages against a school district are not recoverable as

a matter of law, therefore, the R&R recommended Plaintiff be barred

from recovering such damages on her remaining failure to

accommodate claim. (Id. (citing Piotrowski on behalf of J.P. v.

Rocky Point Union Free Sch. Dist., 462 F. Supp. 3d 270, 289

(E.D.N.Y. 2020)).)

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 strictly for clear error. See Locus

Techs. V. Honeywell Int’l Inc., 632 F. Supp. 3d 341, 351 (S.D.N.Y.

2022); Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y.

2008) (same); 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”); Urgent One Med. Care, PC v. Co-Options,

Inc., No. 21-CV-4180, 2022 WL 4596754, at *5 (E.D.N.Y. Sept. 30,

2022) (“General objections, or ‘objections that are merely

perfunctory responses argued in an attempt to engage the district

court in a rehashing of the same arguments set forth in the

original papers will not suffice to invoke de novo review’”

(quoting Owusu v. N.Y.S. Ins., 655 F. Supp. 2d 308, 312-13

(S.D.N.Y. 2009) (cleaned up)); see also Phillips v. Reed Grp., 955

F. Supp. 2d 201, 211 (S.D.N.Y. 2013) (“In the event a party’s

objections are conclusory or general, or simply reiterate original

arguments, the district court . . . reviews the Report and

Recommendation for clear error.”).

II. Analysis

Following the issuance of the R&R, both Defendants and

Plaintiff filed timely objections.

A. Defendants’ Objections

Defendants’ objections to the R&R are two-fold: (1) the

R&R erroneously concluded that Plaintiff complied with NYEL

§ 3813(1)’s notice of claim requirement; and (2) the NYSHRL claims

against the individual Defendants must be dismissed. (See Defs.

Obj. at 4, 9.)

1. Notice of Claim

In their first objection, Defendants argue Plaintiff’s

September 16, 2016 letter to Bannon did not satisfy the notice of

claim requirement under Section 3813(1). (See Defs. Obj. at 4-

9.) The Court reviews this portion of the R&R for clear error as

Defendants previously raised these arguments before Judge Lindsay.

(See Support Memo, ECF No. 107, at 17-19; Reply, ECF No. 117, at

8-10.)

Pursuant to Section 3813(1):

No action or special proceeding, for any cause

whatever, . . . shall be prosecuted or

maintained against any school district, board

of education, . . . or any officer of a school

district, [or] board of

education . . . unless it shall appear by and

as an allegation in the complaint or necessary

moving papers that a written verified claim

upon which such action or special proceeding

is founded was presented to the governing body

of said district or school within three months

after the accrual of such claim . . . .

N.Y. EDUC. L. § 3813(1). “Th[is] statutory prerequisite is not

satisfied by presentment to any other individual or body, and,

moreover, the statute permits no exception regardless of whether

the [governing body] had actual knowledge of the claim or failed

to demonstrate actual prejudice.” Nelson v. Mount Vernon City

Sch. Dist., No. 15-CV-8276, 2017 WL 1102668, at *3 (S.D.N.Y. Mar.

23, 2017) (quoting Parochial Bus Sys., Inc. v. Bd. of Educ. of

City of N.Y., 458 N.E.2d 1241, 1245 (N.Y. 1983)).

The Court agrees with Defendants and SUSTAINS their

objection to the recommendation that Plaintiff’s September

16, 2016 letter to Bannon, the Superintendent, complied with

Section 3813(1). At the motion to dismiss stage, when the record

was not developed as to whom Plaintiff sent this letter, the Court

stated: “Plaintiff . . . suggests that [the] letter may have been

addressed and sent to Bannon. If that were the case, the letter

would not satisfy § 3813(1) . . . .” Bertuzzi v. Copiague Union

Free Sch. Dist., No. 17-CV-4256, 2020 WL 3989493, at *3 (E.D.N.Y.

July 15, 2020) (citing Nelson, 2017 WL 1102668, at *3); see also

Carter v. Syracuse City Sch. Dist., 850 F. App’x 22, 25 (2d Cir.

2021) (dismissing NYSHRL claim where the plaintiff served a notice

of claim on the superintendent); Nelson, 2017 WL 11102668, at *3

(“[C]ourts have consistently held that service of a notice of claim

upon a superintendent does not satisfy § 3813(1)’s requirements.”

Id. (citing Spoleta Constr. & Dev. Corp. v. Bd. of Educ. of Byron-

Bergen Cent. Sch. Dist., 634 N.Y.S.2d 300, 301 (App. Div. 1995)).

Accordingly, the R&R is MODIFIED to the extent that the September

16, 2016 letter does not comply with Section 3813(1).

Nevertheless, the Court agrees with Judge Lindsay that

Plaintiff’s NYSHRL claims survive this threshold issue, at least

at this juncture. Although Plaintiff filed a verified complaint

with the Equal Employment Opportunity Commission (“EEOC”) and New

York State Division of Human Rights (“DHR”) on November 17, 2016

(the “DHR/EEOC Complaint”), the R&R only addressed whether the

September 16, 2016 letter complied with Section 3813(1).

Notwithstanding, Defendants maintain in their objections, as they

did in connection with their underlying motion, that the DHR/EEOC

Complaint does not comply with this notice of claim requirement.

An EEOC charge may satisfy Section 3813(1)’s notice of

claim requirement where it: “(1) places the school district on

notice of the precise claims alleged; and (2) is served on the

party required by [S]ection 3813 within the statutory time period.”

Richard v. N.Y. City Dep’t of Educ., No. 16-CV-0957, 2022 WL

4280561, at *17 (E.D.N.Y. Sept. 15, 2022) (citing Riccardo v.

N.Y.C. Dep’t of Educ., No. 16-CV-4891, 2016 WL 7106048, at *8

(S.D.N.Y. Dec. 2, 2016)).

As they did with respect to the September 2016 letter,

Defendants argue that Plaintiff did not effectuate service of the

DHR/EEOC Complaint upon the proper party under Section 3813(1).

(See Defs. Obj. at 8-9.) Although Plaintiff does not specifically

identify with whom she served the DHR/EEOC Complaint to demonstrate

compliance with Section 3813(1), Plaintiff argues Defendants “had

more than sufficient notice of the nature of the claim” and

“repeatedly substantively answered and denied [P]laintiff’s

detailed allegations.” (See id. at 4-5.) The Court finds that

Plaintiff’s highlighting of Defendants’ involvement during the

administrative proceedings associated with the DHR/EEOC Complaint

is sufficient to create a genuine issue of material fact as to

whether she achieved compliance with Section 3813(1). (See id.)

Accordingly, Defendants’ motion for summary judgment is

DENIED as to this threshold issue.

2. NYSHRL Claims Against Individual Defendants

Should the Court find that all of Plaintiff’s NYSHRL

claims against the District be dismissed, Defendants’ second

objection seeks dismissal of Plaintiff’s NYSHRL claims against the

individual Defendants pursuant to an aiding and abetting theory.

(Id. at 9-10.) As discussed above, there is a genuine issue of

fact as to whether Plaintiff complied with Section 3813(1), and

for the reasons discussed below, a subset of Plaintiff’s failure

to accommodate claims survive summary judgment. Thus, there remain

viable theories of liability against the District to which

liability against the individual Defendants may attach, as

previously determined by Judge Lindsay. (See R&R at 24 n.11.)

Accordingly, Defendants’ second objection to the R&R is

OVERRULED.

B. Plaintiff’s Objections

In her objections, which are twenty-eight pages in

length and longer than her opposition to Defendants’ underlying

motion, Plaintiff argues it was erroneous for the R&R to conclude:

(1) Defendants reasonably accommodated Plaintiff for the 2015-16

and 2016-17 school years; (2) issues of fact exist as to whether

Plaintiff caused a breakdown of the interactive process for the

2017-18 school year; (3) issues of fact exist as to Plaintiff’s

retaliation claims; and (4) issues of fact exist as to Plaintiff’s

disparate treatment claims. (See generally Pl. Obj.) Having

reviewed Plaintiff’s lengthy objections, the Court finds them to

insufficient to trigger de novo review because they are attempts

to re-litigate the precise issues presented to and decided by Judge

Lindsay in the first instance.

1. Accommodation Claims

The first two objections lodged by Plaintiff pertain to

her failure to accommodate claims. Plaintiff argues “Judge Lindsay

failed to consider and/or address significant components of the

record evidence and arguments presented in plaintiff’s opposition

papers.” (Id. at 2.) This is a wholly inaccurate characterization

of the R&R, which contains a thorough and comprehensive review of

the summary judgment record, notwithstanding Plaintiff’s failure

to comply with Local Rule 56.1. Further, “there is no requirement

for a court to specifically address each and every argument raised

by a party in papers filed with the Court.” Miller v. Metro. Life

Ins. Co., No. 17-CV-7284, 2018 WL 5993477, at *5 n.5 (S.D.N.Y.

Nov. 15, 2018) (quoting Driessen v. Royal Bank Int’l, No. 14-CV-

1300, 2015 WL 881205, at *2 (D. Conn. Mar. 2, 2015)).

Plaintiff’s other objections regarding her reasonable

accommodation claims were previously raised in her opposition to

Defendants’ summary judgment motion. For example: (1) that

Plaintiff’s preferred accommodation would not impose an undue

hardship upon Defendants (Compare Pl. Obj. at 5, with Opp’n, ECF

No. 114, at 18); (2) that Room 100 was not needed for a double

period of ENL during the 2016-17 school year (Compare Pl. Obj. at

7 (“Plaintiff credibly and persuasively contests this defense

throughout her opposition papers.”), with Opp’n at 14-15);

(3) that other teachers were assigned a single classroom during

the 2016-17 school year (Compare Pl. Obj. at 9-10, with Opp’n at

14); (4) the purported ineffectiveness of the 2016-17

accommodation and Plaintiff’s fall (Compare Pl. Obj. at 12, with

Opp’n at 6-7); (5) Plaintiff’s physicians’ recommendations

(Compare Pl. Obj. at 13-15, with Opp’n at 6).

As set forth above, for the 2015-16 and 2016-17 school

years, Judge Lindsay explained with citations to the record and to

supporting law as to why the accommodations afforded to Plaintiff

by Defendants were plainly reasonable under the circumstances, and

why Plaintiff’s preferred accommodation of teaching in a single

classroom for all of her teaching and preparation periods was not.

(See R&R at 20-22; see also id. at 22 (“[D]efendants were ‘not

required to provide a perfect accommodation or the very

accommodation most strongly preferred by the employee.’” (quoting

Noll v. Int’l Bus. Machs. Corp., 787 F.3d 89, 95 (2d Cir. 2015))).)

The Court has not identified any clear error committed by Judge

Lindsay in reaching these conclusions.

Further, although Judge Lindsay recommended denying

Defendants’ motion as to Plaintiff’s failure to accommodate claims

for the 2017-18 school year, Plaintiff unnecessarily spills

significant ink objecting to Judge Lindsay’s determination that an

issue of fact exists as to which party caused a breakdown of the

interactive process that year. (See Pl. Obj. at 15-22.) In so

doing, Plaintiff objects to any findings that Defendants even

“engaged in an interactive process” and that Plaintiff “could have

been responsible for the breakdown [of] a purported interactive

process during the 2017-18 school year.” (Id. at 16.) There is

no need for the Court to weigh in on these objections because they

pertain to matters that will be determined by the jury as

Plaintiff’s accommodation claims for the 2017-18 school year

proceed to trial. If Plaintiff wanted to obtain affirmative relief

as to any aspects of her claims, i.e., that Defendants did not

engage in an interactive process or that Plaintiff did not cause

any breakdown of the interactive process, Plaintiff could have

moved for summary judgment in her own right. However, Plaintiff

did not and her attempts to bootstrap liability determinations

onto her objections here are unavailing.

Accordingly, the Court finds that Judge Lindsay did not

commit clear error and Plaintiff’s first two objections regarding

her failure to accommodate claims are OVERRULED.

2. Retaliation Claims

Plaintiff’s next objection focuses on the recommendation

to dismiss her retaliation claims. (Pl. Obj. at 22-26.) The

majority of this objection reiterates Plaintiff’s dissatisfaction

with Defendants’ refusal to provide her with the requested

accommodation, and utilizes this refusal as the basis for an

adverse employment action. (See id. at 23-26.) “While courts may

consider the underlying conduct of an alleged failure to

accommodate, a failure to accommodate, by itself, is not sufficient

for purposes of establishing an adverse employment action.” Sosa

v. N.Y. City Dep’t of Educ., 368 F. Supp. 3d 489, 496 (E.D.N.Y.

2019) (quoting Sherman v. Cty. of Suffolk, 71 F. Supp. 3d 332, 345

(E.D.N.Y. 2014)). Further, Plaintiff re-raises her complaints

about Defendants’ exhaustion of her sick leave, her classroom

assignments, and the proportion of classified students in her

classes, which are matters Judge Lindsay considered and rejected

in the context of both Plaintiff’s retaliation and disparate

treatment claims. (See R&R at 25-27; Pl. Obj. at 23-25.) These

arguments do not point to any clear error, nor has the Court found

any, in the R&R’s analysis of Plaintiff’s retaliation claims.

There is, however, an additional portion of this

objection which warrants de novo review. Plaintiff argues that

she received negative critiques of her classroom management after

requesting accommodations in the 2017-18 school year, which

constitute adverse employment actions. (See Pl. Obj. at 24-25.)

These critiques, which were delivered by Agosta during two meetings

he and Plaintiff had, were examined in the R&R in the context of

how they related to the parties’ participation in an interactive

process -- and not in the context of Plaintiff’s retaliation

claims. (See R&R at 23-24.)

Although Plaintiff never received an “unsatisfactory”

rating in an Annual Professional Performance Review (id. at 9),

she argues an adverse employment action exists “where an

administrator threaten[s] a plaintiff with an unsatisfactory

evaluation around the time the plaintiff had requested an

accommodation,” (see Pl. Obj. at 24 (citing Einsohn v. N.Y. City

Dep’t of Educ., No. 19-CV-2660, 2022 WL 955110, at *10 (E.D.N.Y.

Mar. 30, 2022)).) The summary judgment record does not indicate

that Agosta levied any threats, let alone the type of threat the

Einsohn Court found sufficient to constitute an adverse employment

action, to substantiate a retaliation claim. See Einsohn, 2022 WL

955110, at *10 (denying summary judgment against a retaliation

claim where, during the same month the plaintiff requested an

accommodation, the plaintiff was advised by an administrator that

he might receive an unsatisfactory rating at the end of the school

year).

Accordingly, Plaintiff’s third objection is OVERRULED in

its entirety.

3. Disparate Treatment Claims

Last, Plaintiff objects to the recommendation to dismiss

her disparate treatment claims. (See Pl. Obj. at 26-28.)

Plaintiff’s objection focuses on how she received “an ineffective

accommodation” by being assigned to teach Spanish I, a class with

a high number of classified students, and by being required to

“change classrooms every single period of the day.” (Id. at 27.)

However, Judge Lindsay entertained Plaintiff’s arguments regarding

her class assignments and class composition, inter alia, in

rejecting her disparate treatment claims. As noted by Judge

Lindsay, “there is no evidence to support a finding that Bertuzzi

was given less favorable classroom assignments than her non-

disabled coworkers” and “the fact that on occasion teachers were

assigned single classrooms is not persuasive evidence of disparate

treatment.” (R&R at 25.)

Accordingly, Plaintiff’s fourth objection to the R&R is

OVERRULED.

CONCLUSION

For the stated reasons, IT IS HEREBY ORDERED that

Defendants’ objections are SUSTAINED IN PART and OVERRULED PART,

Plaintiff’s objections are OVERRULED, the R&R is ADOPTED with one

modification, and Defendants’ summary judgment motion is GRANTED

IN PART and DENIED IN PART.

In accordance with the Court’s Individual Rules, the

parties are directed to submit a joint pre-trial order within sixty

(60) days. Further, within thirty (30) days, the parties are

directed to file a letter indicating whether they are amenable to

participating in mediation.

SO ORDERED.

/s/_JOANNA SEYBERT _____

Joanna Seybert, U.S.D.J.

Dated: September 25, 2023

Central Islip, New York