The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CORENE D. CARTER
a/k/a CORENE BROWN,
Plaintiff,
v. 5:10-CV-690
(FJS/TWD)
THE CITY OF SYRACUSE SCHOOL
DISTRICT, DANIEL LOWENGARD,
JOHN DITTMAN, JILL STEWART,
and JOHN DOE(S) and JANE DOE(S),
Defendants.
APPEARANCES OF COUNSEL
BOSMAN LAW FIRM, LLC A.J. BOSMAN, ESQ.
3000 McConnellsville Road
Blossvale, New York 13308
Attorneys for Plaintiff
FERRARA FIORENZA P.C. ERIC J. WILSON, ESQ.
5010 Campuswood Drive MILES G. LAWLOR, ESQ.
East Syracuse, New York 13057
Attorneys for Defendants
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Corene Carter (Brown) (“Plaintiff”), a high school English teacher at Defendant City of
Syracuse School District’s Institute of Technology (“Tech”), brought this action based on race
and gender discrimination against her employer, the City of Syracuse School District
(“Defendant District”), its former superintendent (“Defendant Lowengard”), the former
principal of Tech (“Defendant Dittmann”), the former Vice Principal of Tech and Coordinator
of Defendant District’s Health and Careers program (“Defendant Stewart”), and John Doe and
Jane Doe as “individuals not yet known to the Plaintiff” seeking compensatory damages in an
amount not less than two million dollars, punitive damages in an amount not less than three
million dollars, injunctive relief, declaratory relief, and attorney’s fees, with interest on all
amounts due. See generally Dkt. No. 47, Second Amended Compl.
II. BACKGROUND
A. Procedural history
Plaintiff filed her complaint in this action on June 14, 2010, after many of the alleged
incidents occurred. See Dkt. No. 1, Compl. In response, Defendants filed a motion to dismiss
for failure to state a claim and a motion for summary judgment. See Dkt. No. 17, Defs’ Mot.
Dismiss and Defs’ Mot. Summ. J (2011). Plaintiff then cross-moved to amend her complaint to
add various causes of action. See Dkt. No. 24, Pl.’s Cross Mot. to Amend Compl.
In its March 19, 2012 Order, the Court denied Plaintiff’s motion to amend her complaint
and granted Defendants’ motion in part, dismissing several causes of action, including the
following:
(a) First cause of action for hostile work environment and racial discrimination pursuant
to Title VII against Defendant District;
(b) Second cause of action for racial and gender discrimination pursuant to the New
York State Human Rights Law (“HRL”) against Defendants District and Lowengard
(not decided on the merits);
(c) Fourth cause of action for retaliation pursuant to Title VII against Defendant
District;
(d) Seventh cause of action for hostile work environment and racial and gender
discrimination pursuant to 42 U.S.C. § 1983 against Defendant Lowengard (without
prejudice);
(e) Eighth cause of action for custom, practice, or policy of a hostile work environment
and discrimination pursuant to 42 U.S.C. § 1983 against Defendant District (without
prejudice);1
See Dkt. No. 32, Memorandum-Decision and Order (2012), at 34-35.
The Court denied Defendants’ motion with respect to Plaintiff’s third cause of action for
discrimination pursuant to the HRL against Defendants Dittmann and Stewart and Plaintiff’s
seventh cause of action for race and gender discrimination and hostile work environment
pursuant to 42 U.S.C. § 1983 against Defendants Dittmann and Stewart. See id. The Court
dismissed all of Plaintiff’s claims against Defendants District and Lowengard.
Plaintiff then amended her complaint on May 3, 2012, following the Court’s 2012
Order. See Dkt. No. 34, Amended Compl. Defendants immediately moved to strike Plaintiff’s
amended complaint. See Dkt. No. 36, Defs’ Mot. Strike Amended Compl. After consideration,
the Court ordered Plaintiff to file a Second Amended Complaint. See Dkt. No. 46,
Memorandum-Decision and Order (2013), at 7.
In her Second Amended Complaint (the most recent complaint), Plaintiff asserts three
causes of action. Plaintiff’s first cause of action against Defendants Dittmann and Stewart
alleges discrimination pursuant to the HRL. Her second cause of action alleges discrimination
and a hostile work environment created by Defendants Lowengard, Dittmann, and Stewart,
pursuant to 42 U.S.C. § 1983. Third, also pursuant to 42 U.S.C. § 1983, Plaintiff alleges
municipal liability against Defendant District. See Dkt. No. 47 at ¶¶ 56-62.
1 Since the Second Circuit remanded this case, each of these causes of action are revived and
are before the Court on Defendants’ pending motion. Notably, the Court dismissed Plaintiff’s
HRL claim against Defendants District and Lowengard because she failed to file a notice of
claim with the Board of Education. See Dkt. No. 32 at 13-15. The Court also dismissed
Plaintiff’s Title VII claims because she failed to adequately plead a cause of action. See id. at
18-20.
On May 23, 2014, Defendants filed a motion for summary judgment on those three
remaining causes of action. See Dkt. No. 85, Defs’ Mot. Summ. J. (2014). By Memorandum-
Decision and Order dated June 25, 2015, the Court granted Defendants’ motion for summary
judgment on all claims and entered judgment in Defendants’ favor. See Dkt. No. 112,
Memorandum-Decision and Order (2015), at 13. The Court also denied Plaintiff’s outstanding
motion to depose former Vice Principal Ben Frazier because Plaintiff failed to demonstrate that
she could not have deposed Mr. Frazier during the discovery period. See id. at 12.
Plaintiff appealed the Court’s judgment to the Second Circuit. See Dkt. No. 114, Notice
of Appeal. The Second Circuit then issued a summary order (1) vacating the Court’s 2012
dismissal of Plaintiff’s HRL claim against Defendants District and Lowengard because a notice
of claim was not required, (2) vacating and remanding the Court’s 2012 dismissal of Plaintiff’s
Title VII discrimination and retaliation claims because they were adequately pled, and (3)
vacating, as an abuse of discretion, the Court’s 2015 denial of leave to reopen discovery to
depose Mr. Frazier. See Dkt. No. 116, Summary Order (July 11, 2016), 19-20. The Second
Circuit also urged the Court to reconsider its 2015 grant of summary judgment for Defendants,
listing its concerns, including key facts it believed the Court had overlooked. See id. at 15-18.
Thereafter, Defendants petitioned the Second Circuit for a rehearing on the HRL claim
against Defendants District and Lowengard because the New York Court of Appeals had
recently decided a case on the notice of claim issue in Margerum v. City of Buffalo. See Dkt.
No. 117, Summary Order II, at 2 (August 8, 2016). The Second Circuit granted the rehearing,
vacated its own judgment on the issue, and remanded the Court’s dismissal of Plaintiff’s HRL
claim for reconsideration in light of the new caselaw. See id. at 3. It also instructed the Court
to treat this issue as if it were brought in the first instance. See id.
On September 16, 2016, the Second Circuit issued its mandate with regard to its
summary order and required the deposition of Mr. Frazier. See Dkt. No. 118, Mandate.
Plaintiff deposed Mr. Frazier on June 22, 2017. See Dkt. No. 144, Status Report.
B. Defendants’ pending motion for summary judgment
Defendants filed the pending motion for summary judgment on August 31, 2017. See
Dkt. No. 148, Defs’ Mot. Summ. J. (2017). Based on the Second Circuit’s mandate, the Court
must first decide whether Plaintiff may amend her complaint to add an HRL claim against
Defendants District and Lowengard in light of new caselaw. Second, the Court must decide
whether Defendants are entitled to summary judgment on the following claims:
(1) Plaintiff’s HRL discrimination claim against Defendants Dittmann and Stewart;
(2) Plaintiff’s § 1983 discrimination and hostile work environment claims against
Defendants Lowengard, Dittmann, and Stewart;
(3) Plaintiff’s Title VII discrimination and hostile work environment claims against
Defendant District;
(4) Plaintiff’s § 1983 municipal liability claim against Defendant District; and
(5) Plaintiff’s Title VII retaliation claim against Defendant District.
III. DISCUSSION
A. Whether dismissal of Plaintiff’s HRL claim against Defendants District and
Lowengard is warranted in light of Margerum v. City of Buffalo
In light of the recent New York Court of Appeals’ decision in Margerum v. City of Buffalo,
the Second Circuit asked the Court to consider Plaintiff’s HRL claim against Defendants
District and Lowengard “in the first instance.” See Dkt. No. 117.
In Margerum, twelve white firefighter plaintiffs alleged that the City engaged in reverse
disparate treatment and racial discrimination by permitting promotion eligibility lists to expire
before their maximum legal duration, thus giving black firefighters with less tenure than white
firefighters a better chance of being promoted. See Margerum v. City of Buffalo, 24 N.Y.3d
721, 728 (2015). The Margerum plaintiffs alleged that this violated the HRL, the Civil Service
Law, and the New York State Constitution. See id.
The City argued on appeal that the case should be dismissed on the basis of the plaintiffs’
failure to file a notice of claim prior to commencement of this action pursuant to General
Municipal Law (“GML”) §§ 50-e(1)(a) and 50-i.2 See id. at 730. The Court of Appeals held,
however, that “[h]uman rights claims are not tort actions under 50-e and are not personal injury,
wrongful death, or damage to personal property claims under 50-i.” Id. Accordingly, the court
concluded “that there is no notice of claim requirement here.” Id.
The court also noted that the lower courts had determined that the GML “does not
encompass a cause of action based on the Human Rights Law and ‘[s]ervice of a notice of claim
is therefore not a condition precedent to commencement of an action based on the Human
Rights Law in a jurisdiction where General Municipal Law §§ 50-e and 50-i provide the only
notice of claim criteria.’” Id. (quoting Picciano v. Nassau Cnty. Civ. Serv. Comm’n, 290
A.D.2d 164, 170 [(2d Dep’t 2001)]) (other citations omitted) (emphasis added).
Thus, the Margerum court ultimately held that a plaintiff need not file a notice of claim for
an HRL claim against a municipality under the GML, but it left open the possibility that a
notice of claim may be required under another statutory scheme. Based on this, Defendants
argue that New York’s Education Law is a separate statutory scheme with its own notice of
claim requirement that is much broader in scope than the GML requirement; and, thus, the
2 GML §§ 50-e(1)(a) and 50-i require service of a notice of claim in cases “founded upon tort”
or “for personal injury, wrongful death or damage to real or personal property” against public
corporations or cities. Margerum, 24 N.Y.3d at 730.
Margerum ruling does not affect claims asserted against public school districts. See Dkt. No.
148-18, Defs’ Memorandum in Support, at 13-14.
Section 3813 of the Education Law requires plaintiffs to file a notice of claim with the
governing body of a school district before filing a complaint. Part one provides, in relevant
part:
No action or special proceeding, for any cause whatever, except as hereinafter
provided, relating to district property or property of schools … or claim against
the district or any such school, or involving the rights or interests of any district or
any such school shall be prosecuted or maintained against any school district,
board of education, board of cooperative educational services, … or any officer
of a school district, board of education, board of cooperative educational services
… 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, and that the officer or
body having the power to adjust or pay said claim has neglected or refused to make
an adjustment or payment thereof for thirty days after such presentment …
See N.Y. Educ. L. § 3813(1) (emphasis added).3
State and federal court decisions since Margerum have held that Education Law § 3813(1)
is broader than the GML; and, “‘[a]s a result, its notice of claim requirement applies to
employment discrimination claims against school districts and their officers under the
NYSHRL…” United States v. New York City Dep’t of Educ., Nos. 16-CV-4291 (LAK), 16-
CV-4844 (LAK), 2017 U.S. Dist. LEXIS 51379, *4 (S.D.N.Y. Apr. 4, 2017) (emphasis
omitted); see also Peritz v. Nassau Cnty. Bd. of Coop. Educ. Servs., No. 16-CV-5478, 2019
3This notice of claim requirement applies to Defendant District and Defendant Lowengard,
who, as Superintendent, is a school officer under the Education Law. See N.Y. Educ. L. § 2.
Defendants Dittmann and Stewart, however, are not school officers in their positions as
principal and vice principal; and, therefore, Plaintiff was not required to file a notice of claim to
assert a cause of action against them under the Education Law.
U.S. Dist. LEXIS 96079 (E.D.N.Y. June 7, 2019). Plaintiffs are thus required to serve a notice
of claim upon defendant School Boards or Departments of Education, and the notice of claim
must conform to § 3813(1)’s requirements. See Seifullah v. City of New York, 161 A.D.3d 1206,
1206-07 (2d Dep’t 2018); Bagarozzi v. New York City Dep’t of Educ., No. 18-CV-4893 (RA),
2019 U.S. Dist. LEXIS 56533, *10 (S.D.N.Y. Mar. 31, 2019); see also N.Y. Educ. L. §
3813(1). 4
In this case, Plaintiff argues that it is undisputed that she did file a notice of claim and that
Defendants received it. See Dkt. No. 155-16, Pl.’s Memorandum in Opposition, at 12-13.
Plaintiff sent a copy of her notice of claim to Defendant Lowengard with the body of the email
stating, “for service upon the City of Syracuse School District.” See 148-10, Aff. of Def.
Stewart, Exs. G, H, I. None of these complaints, however, were “presented to the governing
body of said district or school.” N.Y. Educ. § 3813(1) (emphasis added).5 Plaintiff’s attorney
did not serve the notice of claim upon the Board of Education.
4 Even state and federal courts applying statutory schemes outside of the education context have
interpreted Margerum in this way by requiring notices of claim when other statutory schemes
are broader than the GML. In Sager v. Cnty. of Sullivan, the Third Department held that County
Law § 52 (mandating a notice of claim for “any claim… against a county for damage” or “any
other claim for damages arising at law or in equity”) was much broader in scope than the GML.
See Sager v. Cnty. of Sullivan, 145 A.D.3d 1175, 1176-77 (3d Dep’t 2016). Thus, the trial court
properly granted the defendant’s motion to dismiss because the plaintiff had failed to comply
with the notice of claim requirement. See id. at 1177; see also, e.g., Russell v. Westchester
Cmty. Coll., No. 16-CV-1712 (KMK), 2017 U.S. Dist. LEXIS 159540 (S.D.N.Y. Sept. 27,
2017) (same); Melendez v. Cnty. of Westchester, No. 17-CV-9637 (NSR), 2019 U.S. Dist.
LEXIS 10899 (S.D.N.Y. Jan. 23, 2019) (same).
5 See also Nelson v. Mount Vernon City Sch. Dist., No. 15-CV-8276 (KMK), 2017 U.S. Dist.
LEXIS 42305, *10 (S.D.N.Y. Mar. 23, 2017) (holding that “presentment” under § 3813(1) must
be made to the governing body of the school district (the Board of Education), not the
Superintendent); Parochial Bus Sys., Inc. v. Bd. of Educ. of City of N.Y., 60 N.Y.2d 539, 548
(1983).
Thus, the law has not changed since the Court’s 2012 Order. Education Law § 3813(1) is a
statutory prerequisite mandating service on the proper governing body, i.e., the Board of
Education; and Plaintiff’s failure to serve a notice of claim on the appropriate governing body is
fatal to her HRL claims against Defendants District and Lowengard. See Brtalik v. S.
Huntington Union Free Sch. Dist., No. CV-10-0010, 2010 U.S. Dist. LEXIS 107373, *10
(E.D.N.Y. Oct. 6, 2010); Avgerinos v. Palmyra-Macedon Cent. Sch. Dist., 690 F. Supp. 2d 115,
126-27 (W.D.N.Y. 2010); Carlson v. Geneva City Sch. Dist., 679 F. Supp. 2d 355, 366
(W.D.N.Y. 2010). As such, the Court dismisses Plaintiff’s HRL claim against Defendants
District and Lowengard.
B. Plaintiff’s discrimination claims6
The Court must consider whether Defendants are entitled to summary judgment on
Plaintiff’s discrimination claims pursuant to 42 U.S.C. § 1983, the HRL, and Title VII.7 The
Court discusses these causes of action together because they are all considered using the same
“McDonnell Douglas test,” a three-stage, burden-shifting framework for analyzing employment
discrimination cases where a plaintiff alleges disparate treatment but does not have direct
evidence of discrimination. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 82-83
(2d Cir. 2015) (citing McDonnell Douglas [Corp. v. Green], 411 U.S. 792, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 [(1973)] [developing a test for Title VII discrimination cases]); see also Collymore
v. City of New York, 767 F. App’x 42, 44 (2d Cir. 2019) (Summary Order) (applying the
6 Although Plaintiff alleges both race and gender discrimination in her complaint, the parties
only discuss instances of alleged race discrimination in their memoranda.
7 As this is Defendants’ third motion for summary judgment, the Court assumes the parties’
familiarity with the relevant standard and will not repeat that standard here.
McDonnell Douglas test to § 1983 discrimination claims); Farias v. Instructional Sys., Inc., 259
F.3d 91 (2d Cir. 2001) (applying the McDonnell Douglas test to discrimination claims under the
New York HRL).
Under the “McDonnell Douglas test,” a plaintiff must first establish a prima facie case
of discrimination by showing that “’(1) she is a member of a protected class; (2) she is qualified
for her position; (3) she suffered an adverse employment action; and (4) the circumstances give
rise to an inference of discrimination.’” Vega, 801 F.3d at 83 (quoting Weinstock v. Columbia
Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802, 93 S. Ct.
1817)).8
After a plaintiff has established a prima facie case, “a presumption arises that more
likely than not the adverse conduct was based on the consideration of impermissible factors.”
Id. (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S. Ct. 1089, 67 L.
Ed. 2d 207 (1981)). At that point, the burden “shifts to the employer to ‘articulate some
legitimate, nondiscriminatory reason’ for the disparate treatment.” Id. (quoting McDonnell
Douglas, 411 U.S. at 802, 93 S. Ct. 1817). “If the employer articulates such a reason for its
actions, the burden shifts back to the plaintiff to prove that the employer’s reason ‘was in fact
pretext’ for discrimination.” Id. (citing [McDonnell Douglas, 411 U.S.] at 804, 93 S. Ct. 1817)
(other citation omitted).
The third and fourth elements of Plaintiff’s prima facie case are at issue here. Courts
have held that a plaintiff suffers an adverse employment action that satisfies the third element if
“‘she endures a materially adverse change in the terms and conditions of [her] employment,’”
8 Additionally, for a § 1983 claim, the defendants must have acted under color of state law. See
Hayut v. State Univ. of New York, 352 F.3d 733, 743-44 (2d Cir. 2003). Defendants do not
dispute that they are state actors for purposes of § 1983.
such as “’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, a disproportionally heavy workload, or other indices unique to a particular
situation.’” Id. at 85 (quoting [Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d
Cir. 2000)]). Further, an adverse employment action must be “’more disruptive than a mere
inconvenience or an alteration of job responsibilities.’” Id. (quoting Terry v. Ashcroft, 336 F.3d
128, 138 (2d. Cir. 2003)). Under the fourth element of the McDonnell Douglas test, a plaintiff
must present evidence “for a reasonable jury to conclude, by a preponderance of the evidence,
that ‘race, color, religion, sex, or national origin was a motivating factor’” contributing to the
employer’s decision to take the adverse employment action. Id. (quoting Desert Palace, Inc. v.
Costa, 539 U.S. 90, 101, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003)) (internal quotation marks
omitted).
The parties have identified the following nine situations that Plaintiff argues constitute
“adverse employment actions”: (1) she was given a negative evaluation without basis (the
“sham” evaluation), which led to her placement on an assistance plan; (2) due to her placement
on the assistance plan, Plaintiff could not be part of the Master Teacher program; (3) she was
removed as Chairperson of the English Department; (4) she was kept from teaching 11th grade
English; (5) she was kept from teaching Advanced English; (6) a white teacher with less
experience took Plaintiff’s classroom and she was forced to teach from a cart; (7) her teaching
was frequently interrupted by other teachers; (8) she was “targeted” and her performance was
“intensely scrutinized”; and (9) she was “mocked” about her vehicle and the race of her
husband.
The Court can easily dispose of several of these claims because Plaintiff does not
provide evidence to support them. For example, as Defendants point out, Plaintiff provides
absolutely no evidence that the Master Teacher program exists or that she ever sought to
participate in it. See Dkt. No. 148-18 at 21-22; see also Dkt. No. 148-3, Pl.’s Deposition, at
106-110 (revealing that Plaintiff has no substantive knowledge of the Master Teacher program);
see also Dkt. No. 148-11, Aff. of Assistant Director of Personnel Ann Sanzone, at ¶ 7
(affirming that Defendant District does not have a “Master Teacher” program); Dkt. No. 155-
12, Def. Dittmann’s Deposition, 31:7-8 (testifying “I’m not familiar with that term, ‘Master
Teacher.’”). Furthermore, Plaintiff fails to cite to any evidence that not being “moved up” to
teach 11th grade or chosen to teach Advanced English was due to her race or gender, or that it
decreased her wage or salary, gave her a less distinguished title, diminished her responsibilities,
or caused her a material loss of benefits. Plaintiff also does not cite any record evidence that
supports her allegation that her classroom was taken, and replaced with a cart, because of her
race or gender.9 Thus, the Court finds that none of these incidents establish a prima facie case
for Plaintiff’s discrimination claim.
Turning to her remaining claims, Plaintiff first asserts that she was subjected to a
“sham” evaluation leading to her placement on an assistance plan. “A negative job evaluation
is not itself an adverse employment action.” Altieri v. Albany Pub. Library, No.
1:05CV126(FJS/DRH), 2005 WL 1388905, *3 (N.D.N.Y. June 8, 2005) (citations omitted); see
also, e.g., Rivera v. Potter, No. 03Civ.1991LAP, 2005 U.S. Dist. LEXIS 1416, *19 (S.D.N.Y.
Jan. 31, 2005) (holding “[e]ven a negative performance evaluation is not considered an adverse
9 In fact, Defendants point out that “all or most” Tech teachers (including white teachers and the
one Plaintiff claims took her classroom) shared and moved between classrooms because of
space constraints in the 2008-2009 and 2009-2010 school years. See Dkt. No. 159 at 10.
employment action” (citation omitted)); Castro v. New York City Bd. of Educ. Personnel Dir.,
No. 96 Civ. 6314 (MBM), 1998 U.S. Dist. LEXIS 2863, *21 (S.D.N.Y. Mar. 12, 1998) (holding
“negative evaluations … that are unattended by a demotion, diminution of wages, or other
tangible loss do not materially alter employment conditions” (citations omitted)).
The assistance plan is included in Defendant District’s Model for Practitioner
Evaluation, and it is “the initial level to resolve a concern before it becomes a deficiency which
requires a Corrective Action plan. It is the first notice to a practitioner that improvement of
performance must take place.” See Dkt. No. 148-18 at 6; see also Dkt. No. 155-15, Pl.’s
Response to Stmt. of Material Facts, at ¶¶ 22-23. Plaintiff admitted that the assistance plan’s
intended purpose for which it was created was not disciplinary in nature. See Dkt. No. 155-15 at
¶ 24. If the assistance plan is not disciplinary in nature, but instead is designed to assist teachers
in remedying identified weaknesses, then it is not a demotion or other tangible loss to the
employee. Thus, the Court finds that Plaintiff’s negative job evaluation – and subsequent
placement on the assistance plan – are not adverse employment actions; and, thus, they do not
satisfy the third element needed to establish a prima facie case under the McDonnell Douglas
test.
Plaintiff also argues that being removed as Chairperson of the English Department at
Tech was an adverse employment action. Plaintiff complains that she was the Chairperson of
the English Department in the 2007-2008 school year, and allegedly Defendant Dittmann
explained to Ms. Liddle that Plaintiff would continue in that role. See Dkt. No. 155-5, Pl.’s
Supp. Aff., at ¶ 11. Notwithstanding this, in the 2009-2010 school year, Ms. Liddle became the
Chairperson, and she no longer invited Plaintiff to attend any of the English Department
meetings. See id. at ¶¶ 11, 16.
However, Defendants argue that, in the 2007-2008 school year, Plaintiff was the only
English teacher assigned to Tech, and there is “no evidence of Plaintiff’s appointment as
Chairperson of the one-person English department.” See Dkt. No. 159, Defs’ Reply, at 9.
Additionally, Defendants argue that, for the 2008-2009 and 2009-2010 school years, Ms. Liddle
(who had more high school level teaching experience than Plaintiff) was elected Chairperson in
a vote in which all of Tech’s English teachers, including Plaintiff, participated. See id.
Defendants further assert that Plaintiff’s opposition does not cite any evidence that her “loss” of
the Chairperson role resulted from race or gender bias. See id. at 10. These facts, taken
together and in the light most favorable to Plaintiff, do not show a material change in her
employment, a demotion, a decrease in wage or salary, or a loss of material benefits. Therefore,
the Court finds that this is not an adverse employment action that would satisfy the third
element of the McDonnell Douglas test.
Next, as Defendants note, the Second Circuit did not refer to Plaintiff’s alleged
classroom interruptions as possible adverse employment actions, but Plaintiff still argues that
she suffered from such interruptions. See Dkt. No. 159 at 11-12. The interruptions that
Plaintiff points to involve (1) a situation occurring on a “daily basis” in the 2007-2008 school
year where Ms. Milligan, a special education teacher, entered Plaintiff’s classroom to interact
with disabled students, and that she spoke loudly over Plaintiff and interrupted Plaintiff’s class,
see Dkt. No. 155-16 at 3, 25, and (2) two instances where Mr. List either walked into the class,
walked over to the students, looked at what they were doing and left or walked in and called off
students’ names very loudly, telling them they were to go to another class, see Dkt. No. 148-3 at
38:9-20.
In its 2015 Order, the Court found that the interruptions amounted to “isolated
incidents” that do not rise to the level of an adverse employment action. See Dkt. No. 112 at 10.
It also appears from the evidence that the teachers had legitimate, pedagogical reasons for being
in Plaintiff’s classroom and interacting with her students (it was Ms. Milligan’s job to interact
with disabled students and Mr. List was calling to students who were supposed to be in his
class). See id.; see also Dkt. No. 148-18 at 30. Furthermore, Plaintiff is unable to identify
why—beyond an internal understanding of racism that she described in her deposition—these
interruptions were allegedly based on race, color, or gender bias. See id.; see also Dkt. No.
148-3 at 40:12-16. Therefore, the Court finds that these interruptions do not satisfy Plaintiff’s
burden of proving the third element of a prima facie case of discrimination.
Plaintiff also claims that Defendants Dittmann and Stewart “targeted” her and “intensely
scrutinized” her performance, as evidenced by statements Mr. Frazier made. See Dkt. No. 155-
16 at 22; see also Dkt. No. 159 at 12. “Generally, scrutiny of an employee’s performance—
particular[ly] where … the ‘scrutiny’ consisted solely of classroom observations of a type
explicitly authorized by plaintiff’s collective bargaining agreement—does not rise to the level
of an adverse employment action.” Heaphy v. Webster Cent. Sch. Dist., 761 F. Supp. 2d 89, 92
(W.D.N.Y. 2011) (citation omitted). At her deposition, Plaintiff alleged that Defendant Stewart
scrutinized her performance when she observed Plaintiff. See Dkt. No. 148-3 at 145:20-146:17.
Plaintiff could not determine what Defendant Dittmann did to scrutinize her work. See id. at
146:24. Contrary to Plaintiff’s argument, Defendant Stewart’s one observation of Plaintiff does
not rise to the level of an adverse employment action; and, therefore the Court finds that this
does not satisfy Plaintiff’s burden under the McDonnell Douglas test for her Title VII
discrimination claim.
Finally, although Plaintiff does not address these allegations in her opposing
memorandum, Defendants rebut Plaintiff’s allegations that she was “mocked” about her vehicle
and the race of her husband. See Dkt. No. 159 at 12. As Defendants correctly point out,
Plaintiff could not identify a single instance of a Defendant “mocking” her for these reasons at
her deposition. See Dkt. No. 148-3 at 147:22-148:12, 169:8-22. Plaintiff’s only recollections of
being “mocked” were comments about her car that Defendant District’s maintenance man
made, although she could not remember what he said, and general comments about her
husband’s race, although she could not remember who made them or what the comments were.
See id. at 148:15-149:5, 149:24-150:4. Even taking these facts in the light most favorable to
Plaintiff, district courts in this Circuit have held that “mockery by other staff members is not an
adverse [employment] action.” Nugent v. St. Luke’s/Roosevelt Hosp. Ctr., No. 05-CV-5109,
2007 U.S. Dist. LEXIS 28274, *31 (S.D.N.Y. Apr. 18, 2007). Thus, the Court finds that
Plaintiff’s claims that Defendants, and employees of Defendant District, mocked her do not
amount to an adverse employment action sufficient to satisfy the third element of the
McDonnell Douglas test.
Because Plaintiff has not asserted that she suffered an adverse employment action, she
has failed to establish the third element required to make a prima facie case of discrimination
for which Defendants Lowengard, Dittmann, and Stewart could be held individually liable
under § 1983 or the HRL, or Defendant District could be held liable under Title VII. Thus, the
Court grants Defendants’ motion for summary judgment with respect to these claims.
C. Plaintiff’s hostile work environment claims
The Court must consider whether Defendants are entitled to summary judgment on
Plaintiff’s hostile work environment claims against Defendants Lowengard, Dittmann, and
Stewart pursuant to 42 U.S.C. § 1983 and against Defendant District pursuant to Title VII. The
Second Circuit, in its mandate, asked the Court to consider various facts when determining
whether Plaintiff has adequately pled a hostile work environment claim. The Court has
considered each of those facts, discussed in turn, and ultimately reaffirms its decision to grant
Defendants’ motion for summary judgment on these claims.
The standard for § 1983 and Title VII hostile work environment claims is the same. It
requires the plaintiff to show that “‘the 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.” Ronga v. New York
City Dep’t of Educ., No. 10 Civ. 03327 (LTS), 2011 U.S. Dist. LEXIS 36013, *12 (S.D.N.Y.
Mar. 31, 2011) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citation
and quotation marks omitted)); see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
116 (2002). Even a single incident that is extraordinarily severe, or a series of incidents that
were continuous and concerted, may meet this standard if they altered the conditions of the
plaintiff’s work environment. See Rother v. NYS Dep’t of Corr. & Cmty. Supervision, 970 F.
Supp. 2d 78, 92 (N.D.N.Y. 2013) (quotation omitted). Ultimately, it is up to the courts to
examine the totality of the circumstances to determine whether a workplace is hostile and thus
creates an adverse employment action against the plaintiff. See id. (quotation omitted). The
totality of the circumstances includes “‘the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with the victim’s job performance.’” Id. (quotation omitted).
Furthermore, “[a]n individual may be held liable under … § 1983 only if that individual
is ‘personally involved in the alleged deprivation.’” Littlejohn v. City of New York, 795 F.3d
297, 314 (2d Cir. 2015) (quoting Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d
107, 127 (2d Cir. 2004)) (other citations omitted).10 If the defendant is a supervisor, then “‘a
plaintiff must also establish that the supervisor’s actions were the proximate cause of the
plaintiff’s constitutional deprivation. Finally, as with individual liability, in the § 1983 context,
a plaintiff must establish that a supervisor’s behavior constituted intentional discrimination on
the basis of a protected characteristic …’” Littlejohn, 795 F.3d at 314 (quoting Raspardo [v.
Carlone], 770 F.3d [97,] 116 [(2d Cir. 2014)] (citation omitted)).
1. Defendant Dittmann
First, the Second Circuit asked the Court to consider alleged remarks, to which Plaintiff
attested in her affirmation, that she was told that white teachers, including Defendant Dittmann
himself, were intimidated by her because of her status as a “tall Black, well-spoken, educated,
professional woman.” See Dkt. No. 118 at 16; see also Dkt. No. 155-4 at ¶¶ 6,13. Defendant
Dittmann denies ever agreeing to such a statement, ever making such a statement, or even
making a similar statement. See Dkt. No. 148-13, Def. Dittmann Aff., at ¶ 16. The only person
10 “Personal involvement can be established by showing that: ‘(1) the defendant participated
directly in the alleged constitutional violation, (2) the defendant, after being informed of the
violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a
policy or custom under which unconstitutional practices occurred, or allowed the continuance of
such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates
who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference … by
failing to act on information indicating that unconstitutional acts were occurring.’” Littlejohn,
795 F.3d at 314 (quoting Back, 365 F.3d at 127).
who recalls this “intimidation” remark is Plaintiff, but she recalled it differently in her
deposition. Instead of being told the “intimidation” remark by Defendant Dittmann, Plaintiff
testified: “I said to [Defendant Dittmann], you know: Clearly they have issues with me, because
you know, I’m tall and I’m black and whatever, and he said: I agree. Even I’m intimidated by
you.” See Dkt. No. 148-3 at 42:21-24.
Even accepting Plaintiff’s allegations as true, a reasonable factfinder could not find that this
remark—which Plaintiff apparently made to Defendant Dittmann—is so threatening or severe
that it would unreasonably interfere with Plaintiff’s job performance. As Defendants point out,
Plaintiff cannot rely on a remark she made to create a hostile work environment. See Dkt. No.
148-18 at 33. Further, Plaintiff did not present any other evidence that shows Defendant
Dittmann directly created a hostile work environment or helped create one while in a
supervisory position. Thus, for these reasons, the Court grants Defendants’ motion for
summary judgment on Plaintiff’s § 1983 hostile work environment claim against Defendant
Dittmann.
2. Defendant Stewart
Plaintiff does not provide any evidence that Defendant Stewart directly acted in a way
that created a hostile work environment. There are no allegations that Defendant Stewart
interfered with her classroom, made racial comments to her, or in any other way created an
abusive workplace. Although Plaintiff alleges that Defendant Stewart conducted a “sham”
evaluation of her, Plaintiff does not argue that that evaluation contributed to the hostile work
environment. Because Plaintiff has failed to provide even a scintilla of evidence that Defendant
Stewart created a hostile work environment, the Court grants Defendants’ motion for summary
judgment on Plaintiff’s § 1983 hostile work environment claim against Defendant Stewart.
3. Defendant Lowengard
Similarly, Plaintiff does not point to evidence that Defendant Lowengard directly
discriminated against her or acted in a way that directly caused a hostile work environment.
There is also no evidence that Defendant Lowengard was responsible for creating a hostile work
environment in his position as a supervisor. There is only evidence that he knew of one
complaint Plaintiff had made about discrimination. At Defendant Lowengard’s deposition, he
recalled that Plaintiff had made a remark about a “lynch mob.”11 See Dkt. No. 155-11, Def.
Lowengard’s Deposition, at 11:13-18. Mr. Lowengard testified, however, that he felt the “lynch
mob” situation had been resolved when Plaintiff met with Defendant Dittmann, the head of the
teacher’s union, and possibly Ann Sanzone, Assistant Director of Personnel at the school. See
id. He did not even recall discussing that issue with Plaintiff when he met with her at a later
date.12 See id. at 15:11-19.
There is also no evidence that Defendant Lowengard received any other reports of
discrimination, that he knew about the allegedly racist comments made by various staff
members at Tech, or that he created a policy or practice that permitted racial discrimination
within Defendant District. Thus, because Plaintiff does not point to any evidence that
11 In Plaintiff’s exhibit, she provides a letter to Mr. Dittmann dated December 19, 2007, where
she stated, “Mr. Dittman, the modern day lynch mob must stop. I was okay when it was just
me, but it is affecting the academic success of my students and, therefore must end. In a great
effort to harass, badger and disrespect me, several staff members are violating the educational
rights of my students. I am asking you to put an end to this for sake of the students.” See Dkt.
No. 155, Ex. 1.
12 That meeting was not about alleged discrimination, but about Plaintiff’s general
dissatisfaction with Tech, the number of failing students in her classroom, and Defendant
Lowengard’s concerns that Plaintiff was not a “team player” because she was not attending
team meetings. See Dkt. No. 155-11 at 12-16.
Defendant Lowengard directly created the hostile work environment, or that his failure to
supervise caused such an environment, the Court grants Defendants’ motion for summary
judgment and dismiss Plaintiff’s § 1983 hostile work environment claim against Defendant
Lowengard.
4. Defendant District
As stated above, the Court must look at the totality of the circumstances to determine
whether Defendant District should be held liable for creating a hostile work environment in
violation of Title VII. The Second Circuit asked the Court to look at various facts with respect
to this claim.
In addition to the “intimidation” mark that Defendant Dittmann allegedly made, the
Second Circuit asked the Court to consider Mr. Frazier’s alleged statement to Plaintiff that he
was initially meant to perform her evaluation and that “they” were “doing this” to her because
she was “a well[-]educated Black woman.” See Dkt. No. 118 at 16; see also Dkt. No. 155-5 at
¶ 12; Dkt. No. 155-4, Pl’s Aff., at ¶ 30. Mr. Frazier does not recall ever making the alleged
statements to Plaintiff. See Dkt. No. 148-14, Frazier Aff., at ¶¶ 6-7; see also Dkt. No. 155-14,
Frazier’s Deposition, at 62:15-22. In fact, Mr. Frazier does not recall making any statements to
Plaintiff or having any discussions with her at any time regarding race or race discrimination.
See Dkt. No. 155-14 at 61:23-62:18. Not only does Mr. Frazier fail to recall this conversation;
but, at her deposition, Plaintiff also failed to recall any of Mr. Frazier’s alleged statements to her
about her race or gender. See Dkt. No. 148-3 at 42:10-18. Considering no one even remembers
this conversation, a reasonable factfinder could not find that it contributed to a hostile work
environment.
The Second Circuit also instructed the Court to consider the following three instances
when teachers made purportedly racist remarks to Plaintiff: (1) Ms. Dygert allegedly stated,
“Where I went to school in the Adirondacks there were no Blacks,” (2) Mr. Paraino began to
tell Plaintiff a racist joke and stopped only upon seeing that she disapproved, and (3) Mr. Resti
made a comment to Plaintiff about African-American students fighting with one another being
“cultural.” See Dkt. No. 118 at 16-17 (citing Dkt. No. 155-4 at ¶ 23). Each of these remarks
appear to be minor, isolated incidents. None of them, even taken together, rise to the level of
severity and pervasiveness that a reasonable person would feel that she was working in a hostile
environment.
Furthermore, there is no evidence that Plaintiff complained about any of these remarks
to her supervisors. Because Plaintiff’s supervisors did not have notice of these alleged
comments, there is no way that Defendant District would have notice of them and the alleged
hostile work environment they were creating. See generally Dkt. No. 155-5 at ¶ 10, Dkt. No.
155-4 at ¶¶ 10, 23. Additionally, Plaintiff does not even indicate what Defendant District could
do to discipline Mr. Resti for the alleged remark about “cultural” fighting, which he made off
school property when he and Plaintiff ran into each other in a doctor’s office. See Dkt. No. 155-
4 at ¶ 23.
The Second Circuit also asked the Court to consider that Plaintiff allegedly complained of
discriminatory treatment to the School District’s Director of Personnel, Randy Williams, who
allegedly responded that she should “dig [her] heels in.” See Dkt. No. 118 at 17 (citing Dkt.
No. 155-4 at ¶ 25). This remark, like the others, does not change the fact that a reasonable
factfinder could not conclude that Plaintiff was working in a hostile environment. Plaintiff does
not even recall the conversation with Mr. Williams, what she complained to him about besides
feeling that she was being “lynched academically,” or when she complained to him. See Dkt.
No. 148-3 at 83:4-84:20.
Based on these facts, no reasonable factfinder – even looking at the allegations in the light
most favorable to Plaintiff – could find that Plaintiff suffered a hostile work environment.
Therefore, in addition to granting Defendants’ motion for summary judgment on Plaintiff’s
§ 1983 hostile work environment claim against Defendants Dittmann, Stewart, and Lowengard,
the Court grants Defendants’ motion for summary judgment on Plaintiff’s Title VII hostile work
environment claim against Defendant District.
D. Plaintiff’s § 1983 municipal liability claim against Defendant District
“Municipal entities, including school districts, are ‘persons’ within the meaning of § 1983
and therefore subject to suit under that provision.” Nagle v. Marron, 663 F.3d 100, 116 (2d Cir.
2011) (citing Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 663, 98 S. Ct.
2018, 65 L. Ed. 2d 611 (1978); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d
107, 128 (2d Cir. 2004)). However, municipal entities “may not be sued under § 1983 for an
injury inflicted solely by its employees or agents.” Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978). They may be sued only when a government’s policy or custom, made by
policymakers or officials, inflicts injury. See id. The Monell court further ruled “that Congress
did not intend municipalities to be held liable unless action pursuant to official municipal policy
of some nature caused a constitutional tort.” Id. at 691.
In other words, a municipal entity like a school district cannot be held liable under
§ 1983 unless one of the officials or policymakers violated the Constitution. Defendant
Lowengard, as Superintendent, is the only individual Defendant who is a policymaking official
within Defendant District. Because the Court granted Defendants’ motion for summary
judgment with respect to Plaintiff’s § 1983 claims against Defendant Lowengard, Defendant
Lowengard has not committed a constitutional violation; and, therefore, Defendant District
cannot be subject to municipal liability under § 1983.
The Second Circuit suggested that the Court consider Mr. Triana’s and Mr. Moore’s
affidavits in determining whether Defendant District had a policy or practice of discrimination.
See Dkt. No. 118 at 18. Even considering Mr. Triana’s and Mr. Moore’s affidavits, however,
there are no issues of triable fact regarding Defendant District’s alleged custom, policy or
practice of discriminating against African-Americans. The incidents reported in their affidavits
appear to be isolated, with no temporal proximity to Plaintiff’s claims, and they occurred in
buildings other than Tech, involving different teachers and administrators from those whom
Plaintiff alleges discriminated against her. See Dkt. Nos. 155-7, Aff. of Triana, 155-8, Aff. of
Moore. Therefore, for the above-stated reasons, the Court grants Defendants’ motion for
summary judgment on this issue.
E. Plaintiff’s Title VII retaliation claim against Defendant District
In 2012, the Court dismissed Plaintiff’s Title VII retaliation claim against Defendant
District. The Second Circuit vacated this opinion, concluding that Plaintiff plausibly alleged
facts sufficient to state a claim for retaliation under Title VII. The Second Circuit found that the
facts in Plaintiff’s proposed amended complaint alleged a claim of retaliation under Title VII
because Plaintiff filed a complaint of discrimination with the NYSDHR; and, following that
complaint, she made a request to Defendant District (through her treating psychiatrist) that she
be relocated to another school, which was denied.13 See Dkt. No. 118 at 10. The Second
13 Although the Second Circuit claimed that Plaintiff’s protected activity was filing a claim with
the NYSDHR, and Defendants argued there was no temporal proximity to the transfer denials,
Circuit relied on Plaintiff’s statement that such a transfer could have been done without
difficulty, and it would have been done had Plaintiff not complained of discrimination, because
a faculty member’s request for transfer was typically honored. See id.; see also Dkt. No. 155-
16 at 27. The Court must now analyze this claim against Defendant District in response to its
motion for summary judgment.
Title VII of the Civil Rights Act of 1964 includes an anti-retaliation provision, making it
unlawful “for an employer to discriminate against any of his employees” because the employee
“has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this [title].” See 42 U.S.C. § 2000e-3(a). “This anti-retaliation
provision is intended to further the goals of the anti-discrimination provision ‘by preventing an
employer from interfering (through retaliation) with an employee’s efforts to secure or advance
enforcement of [Title VII’s] basic guarantees.’” Hicks v. Baines, 593 F.3d 159, 164 (2d Cir.
2010) (quoting [Burlington Northern & Santa Fe Ry. v.] White, 548 U.S. [53,] 63, 126 S. Ct.
2405 [(2006)]).
Courts evaluate Title VII retaliation claims under the three-step burden-shifting analysis
set out in McDonnell Douglas. See id. “First, the plaintiff must establish a prima facie case of
retaliation by showing: ‘”(1) participation in a protected activity; (2) that the defendant knew of
the protected activity; (3) an adverse employment action; and (4) a causal connection between
the protected activity and the adverse employment action.”’” Id. (quoting Jute [v. Hamilton
Sundstrand Corp.,] 420 F.3d [166], 173 [(2d Cir. 2005)]). The plaintiff’s burden in proving a
prima facie case is “de minimus.” Id. It is “’the court’s role in evaluating a summary judgment
Plaintiff correctly notes that filing her complaint in the instant action also constituted a
protected activity. See Dkt. No. 148-18 at 26; Dkt. No. 155-16 at 27.
request to determine only whether proffered admissible evidence would be sufficient to permit a
rational finder of fact to infer a retaliatory motive.’” Id. (quotation omitted).
“If the plaintiff sustains this initial burden, ‘a presumption of retaliation arises,’” and the
burden shifts to the defendant. Id. (quotation omitted). Once the burden shifts to the defendant,
it must then “‘articulate a legitimate, non-retaliatory reason for the adverse employment
action.’” Id. (1uotation omitted). If the defendant can do this, then the “‘presumption of
retaliation dissipates’” and the burden shifts back to the employee to show that the retaliation
“‘was a substantial reason for the adverse employment action.’” Id. (quotation omitted). “A
plaintiff can sustain this burden by proving that ‘a retaliatory motive played a part in the
adverse employment actions even if it was not the sole cause[.]’” Id. (quotation omitted). Title
VII is violated “‘if the employer was motivated by retaliatory animus,’” “‘even if there were
objectively valid grounds for the [adverse employment action].’” Id. at 164-65 (1uotation
omitted).
Thus, to establish a prima facie case under this framework, Plaintiff must first show that
she participated in a protected activity. Title VII clearly states which activities are protected:
making a charge, testifying, assisting, or participating in any manner in an investigation,
proceeding or hearing under the statute. See 42 U.S.C. § 2000e-3(a). It is not disputed that
Plaintiff engaged in two different forms of protected activity; she filed a complaint against
Defendant District with the New York State Division of Human Rights (“NYSDHR”) (which
was also filed with the Equal Employment Opportunity Commission (“EEOC”)), and she filed a
complaint to initiate this action in federal court. See Dkt. No. 148-10, Ex. G; see also Dkt No. 1
at ¶ 6. Thus, the Court finds that Plaintiff has satisfied the first element of her prima facie case.
Second, Plaintiff must show that Defendants knew of her protected activity. In
Defendant Stewart’s affidavit, she noted that “on or about April 27, 2009, Plaintiff filed an
administrative complaint of discrimination” with the NYSDHR and that complaint was dual
filed with the EEOC. See Dkt. No. 148-10 at ¶ 18. Plaintiff also attested that Defendant
District was served with a copy of her NYSDHR complaint on or about April 27, 2009. See
Dkt. No. 155-4 at ¶ 37. Defendant District obviously knew of Plaintiff’s protected activity of
filing her initial complaint in this action, brought under Title VII of the Civil Rights Act of
1964, because Plaintiff served all Defendants with a summons, and Defendants’ counsel
subsequently answered the complaint. See Dkt. No. 2, Summons; Dkt. No. 4, Defs’ Answer.
Therefore, the Court finds that Plaintiff has satisfied the second element of her prima facie case.
The third element of a prima facie retaliation case that Plaintiff must prove is that she
suffered an adverse employment action. An adverse employment action in a Title VII
retaliation claim is different from one in a Title VII or § 1983 discrimination claim. The
Supreme Court has ruled that Title VII’s “antiretaliation provision, unlike the substantive
provision, is not limited to discriminatory actions that affect the terms and conditions of
employment.” Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006)
(citation omitted); see also Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 43 (2d Cir.
2019). Instead, a plaintiff may recover for retaliation by showing “that a reasonable employee
would have found the challenged action materially adverse, ‘which in this context means it well
might have “dissuaded a reasonable worker from making or supporting a charge of
discrimination.’”” White, 548 U.S. at 68 (quotation omitted). The Supreme Court has remarked
that, in Title VII cases, “[d]iscrete acts such as termination, failure to promote, denial of
transfer, or refusal to hire” are easily identifiable retaliatory adverse employment decisions.
Morgan, 536 U.S. at 114 (emphasis added).
There is no issue of fact regarding Plaintiff’s transfer denial. The parties agree that
Plaintiff’s psychiatrist wrote two notes regarding her ability to return to work. In the first note,
dated August 24, 2010, Dr. Saundra Barnett-Reyes wrote that Plaintiff was immediately able to
return to work full time and that Plaintiff “would be much more effective on Special
Assignments helping teachers and students outside the classroom setting within the Syracuse
City Schools.” See Dkt. No. 155-2 Ex. 8. In the second note, dated September 1, 2010, Dr.
Barnett-Reyes stated that Plaintiff “is able to return to work full time without restriction,
however, it is my professional medical opinion that she not return to [Tech].” See Dkt. No.
155-2 Ex. 9.
The parties do not dispute that Article 10, Section H of the District-Syracuse Teachers
Association labor contract establishes a procedure for teachers to request a transfer to another
school building. See Dkt. No. 148-18 at 25; see also Dkt. No. 148-11 at ¶¶ 11-12. The
procedure in the labor contract requires a teacher to fill out a specific form to request a transfer
and to provide reasons for the request. See Dkt. No. 148-18 at 25. In fact, the parties agree that
Plaintiff did not comply with this transfer procedure. See id.; see also Dkt. No. 155-16 at 28.
Plaintiff argues, however, that, although she did not follow this procedure, she requested a
transfer by submitting her psychiatrist’s notes; and that transfer was denied. See Dkt. No. 47 at
¶ 42.
As explained above, the Supreme Court has held that denying an employee a transfer
can be an adverse employment action for purposes of a retaliation claim. See Morgan, 536 U.S.
at 114. However, a plaintiff must have actually been denied the transfer for it to constitute
retaliation. Here, the District- STA labor contract clearly sets forth the procedure for requesting
a transfer. Plaintiff did not comply with that procedure; and, instead, her psychiatrist sent two
notes to Defendant District stating that Plaintiff would be “more effective” in another position
or building. Plaintiff’s psychiatrist’s notes were not considered a transfer request because they
did not comply with the formal policy – the only way to request a transfer. Thus, because
Plaintiff did not officially request a transfer, she could not have been denied a transfer. Further,
if she was not denied a transfer, then the Court cannot find that Defendant District retaliated
against Plaintiff in this way. The Court thus holds that Plaintiff has not satisfied her burden on
this element of her prima facie case and grants Defendants’ motion for summary judgment with
regard to her Title VII claim.14
IV. CONCLUSION
After carefully considering the entire file in this matter, the parties’ submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that, upon reconsideration as the Second Circuit required, Plaintiff’s HRL
claim against Defendants District and Lowengard is DISMISSED; and the Court further
ORDERS that Defendants’ motion for summary judgment with regard to Plaintiff’s
Title VII claims, see Dkt. No. 148, is GRANTED; and the Court further
ORDERS that, upon reconsideration at the Second Circuit’s request, Defendants’
motion for summary judgment with regard to Plaintiff’s remaining claims, see Dkt. No. 148, is
GRANTED; and the Court further
14 Insofar as Plaintiff requests that the Court allow further discovery relating to her retaliation
claim, see Dkt. No. 155, Aff. of Pl’s Counsel, A.J. Bosman, at ¶ 31, the Court denies this
request.
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and
close this case.
IT IS SO ORDERED.
Dated: February 3, 2020
Syracuse, New York
Freder& J Boulter Jr.
Senior United States District Judge
- 30 -