Mazur v.

ANALISA TORRES

Motion granted.

Steven Anthony Morelli, The Law Office of Steven A. Morelli, Paul Andrew Bartels, Law Office of Louis D. Stober, Jr., LLC, Garden City, NY, for Plaintiff. Amy Jacobson Kessler, Ricardo Tapia, Jr., NYC Law Department, New York, NY, for Defendants.

MEMORANDUM AND ORDER

ANALISA TORRES, District Judge:

In 2003, Plaintiff, Joan Mazur, a 49–year–old teacher, began working at Grover Cleveland High School in Queens, New York. In 2008, she injured her ankle and was absent from school for six weeks. Plaintiff claims that after her injury, her supervisor, Assistant Principal Regina Dominguez, began to treat her unfairly by giving Plaintiff unjustified, negative reviews and burdening her with extra work. The New York City Department of Education (“DOE”) referred administrative charges against Plaintiff in 2010 and 2012. Hearings were held in both instances, and Plaintiff was twice disciplined. Plaintiff alleges that Defendants, Dominguez and the DOE, discriminated against her on the basis of her age and disability and created a hostile work environment in violation of 42 U.S.C. § 1983, the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), New York State Executive Law § 290 (“NYSHRL”), and Title 8 of the New York City Administrative Code (“NYCHRL”). Plaintiff also alleges that Defendants retaliated against her for filing discrimination complaints. Because Defendants have shown that a reasonable jury could not find that Plaintiff was discriminated against, Defendants' motion for summary judgment is GRANTED.

In addition, Plaintiff cannot show that her age was the “but-for” cause of her adverse employment actions. Defendants have articulated several legitimate, non-discriminatory reasons for the adverse actions taken against Plaintiff by providing a series of negative classroom observation reports indicating that Plaintiff failed to rectify her unsatisfactory performance throughout her employment at Grover Cleveland and evidence of Plaintiff's excessive tardiness and absences. The record indicates that Plaintiff received specific recommendations for improvement as early as 2003 that remained unaddressed years later. Compare Pl. Ex. E (December 8, 2003 classroom observation recommending that Plaintiff prepare more detailed lesson plans and asking Plaintiff to share the plans with Zambrano–Burakov), with Def. Ex. X (September 30, 2010 classroom observation recommending that Plaintiff prepare more detailed lesson plans and asking Plaintiff to share the plans with Dominguez). In addition, Plaintiff has offered no explanation for her tardiness. Plaintiff does not contest the amount of absences but rather contends that the absences were excusable and not excessive. Mazur Dep. 92:10–15. Given the detailed history of Plaintiff's transgressions and Plaintiff's lack of evidence aside from conclusory and contradictory statements, no reasonable jury could conclude that Plaintiff's age was the “but-for” cause of her reviews, charges and suspension. Cf. Miller v. Nat'l Ass'n of Sec. Dealers, Inc., 703 F.Supp.2d 230, 248 (E.D.N.Y.2010) (“When an employer accused of discrimination provides convincing evidence explaining its conduct, and the plaintiff's case rests on conclusory allegations such as these, it is proper for a court to conclude that there is no genuine issue of material fact....”). Plaintiff's ADEA discrimination claims, therefore, must be dismissed.

2. ADEA Hostile Work Environment Claims

“An actionable discrimination claim based on hostile work environment under the ADEA is one for which the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of the victim's employment.” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 240 (2d Cir.2007) (internal alterations and quotation marks omitted) (citing Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir.1999)). A determination of hostility involves an objective component, which asks whether a reasonable person would find the environment to be hostile, and a subjective component, which asks whether the plaintiff perceived the environment to be hostile. Id. A plaintiff does not need to list specific acts but must prove that the alleged incidents were “sufficiently continuous and concerted to be considered pervasive” and resulted from her age. Id. at 240–41.

As with her other age-based discrimination claims, Plaintiff has proffered insufficient evidence to make out a hostile work environment claim. See Sotomayor v. City of New York, 862 F.Supp.2d 226, 261 (E.D.N.Y.2012) (dismissing a plaintiff's age-based hostile work environment claims on the same grounds as her age discrimination claims), aff'd, 713 F.3d 163 (2d Cir.2013). Objectively, Plaintiff has not demonstrated that she endured a workplace “permeated with discriminatory intimidation, ridicule, and insult” based on her age that altered her working conditions. In her deposition, Plaintiff acknowledged that she had never been personally asked about retirement. See Mazur Dep. 59:5–6. Moreover, comments or questions about retirement, without more, do not create a hostile work environment. See Hamilton v. Mount Sinai Hosp., 528 F.Supp.2d 431, 447 (S.D.N.Y.2007) ( “[D]iscussion of retirement is common in offices, even between supervisors and employees, and is typically unrelated to age discrimination.”), aff'd, 331 Fed.Appx. 874 (2d Cir.2009). Plaintiff also fails to demonstrate how her negative evaluations or reviews were connected to her age. To the contrary, Plaintiff's own testimony shows that she did not feel that many of the negative reviews were connected to her age. See Mazur Dep. 60:4–7, 79:1–5, 81:10–12. Similarly, although Plaintiff states in her 56.1 statement that she was forced to observe younger teachers as part of a “targeted campaign of harassment,” Plaintiff acknowledged in her deposition that the teachers she observed were “very clear and concise,” “well prepared,” and had a command of technology that Plaintiff admired. Compare Pl. 56.1 ¶¶ 47–48, with Mazur Dep. 64:2–3, 66:3–8. Far from suggesting that the recommended observations were discriminatory, Plaintiff's testimony indicates that the observations of other teachers were informative. Plaintiff takes issue with the fact that some of the younger teachers committed similar infractions, but nowhere in the record does Plaintiff show that these teachers did not receive similar recommendations or that they faced no penalties for their mistakes. With such contradictory and inconsistent evidence, a reasonable jury could not conclude that Plaintiff had been subjected to a hostile work environment based on her age.

B. Disability Discrimination Under the ADA 1. ADA Discrimination Claims

Claims of disability discrimination brought under the ADA are evaluated under the Title VII McDonnell Douglas burden-shifting framework. McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir.2009). In order to establish a prima facie case of disability discrimination, a plaintiff must show: (1) that her employer is subject to the ADA; (2) that she has a disability—actual or perceived by her employer—as defined by the ADA; (3) that she is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (4) she suffered an adverse employment action as a result of her disability. Brady v. Wal–Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir.2008).

Plaintiff fails to establish a prima facie case at the second, third and fourth prongs of the analysis and fails to rebut Defendants' legitimate non-discriminatory reasons for the adverse actions. First, Plaintiff has not shown that she is disabled as defined by the ADA. Plaintiff did not attend class for six weeks in the spring of 2008 after she sprained her ankle. See Pl. 56.1 ¶¶ 20–21. During that time, Plaintiff was unable to drive. Mazur Dep. 33:15–19. She was in a wheelchair for the first week and a half until she was able to walk, although slowly and with a crutch. Mazur Dep. 33:20–24. After six weeks, Plaintiff was able to return to work and used a cane to walk for some time. Mazur Dep. 34:1–13. Plaintiff stated that the ankle injury was not permanent and, aside from lingering weakness, has not caused any permanent changes in her major life activities. Mazur Dep. 34:14–24. Temporary injuries that do not substantially affect one's ability to engage in major life activities do not constitute a “disability” within the meaning of the ADA. See Price v. City of New York, 09 Civ. 4183, 2013 WL 1182073, at *7 (E.D.N.Y. Mar. 21, 2013) (“Courts in this Circuit repeatedly have held that the inability to, e.g., walk long distances or climb stairs does not in itself substantially limit an individual's ability to perform a major life activity.”), aff'd, 558 Fed.Appx. 119 (2d Cir.2014); Young v. Benjamin Dev. Co., Inc., 03 Civ. 10209, 2009 WL 498933, at *8 (S.D.N.Y. Feb. 17, 2009) (“In fact, the record suggests that, before, during, and after, the September 19 fall, Plaintiff was assigned the same types of tasks that he had been given since he started working for Allerton in 1990. Accordingly, Plaintiff has not produced sufficient evidence that Defendants regarded him as ‘disabled’ under the ADA.”), aff'd, 395 Fed.Appx. 721 (2d Cir.2010); Le Prevost v. New York, 03 Civ. 2544, 2006 WL 2819582, at *7 (S.D.N.Y. Sept. 29, 2006) (“Based on the record, it is clear to the Court that Plaintiff's injury, while it affected the major life activity of walking, did not substantially affect her ability to walk. The record shows that Plaintiff's impairment was not particularly severe, was not expected to, and indeed, did not, last very long, and appears to have had no permanent impact on Plaintiff's ability to walk.”). Because Plaintiff's injury was only temporary and did not substantially affect her ability to walk, Plaintiff has not shown that she was disabled.

Second, Plaintiff has not shown that she was otherwise qualified to perform the essential functions of the job with reasonable accommodation. To the contrary, the record reflects that Plaintiff did not seek an accommodation. Plaintiff testified that although she assisted Dominguez in a limited capacity while out, the approach to sick leave was “[b]asically it's I'm home sick and that's the end of it and you'll see me when I get back.” Mazur Dep. 41:5–19. There is no evidence that Plaintiff either asked for an accommodation or that she was denied an accommodation. Cf. McBride, 583 F.3d at 97 (affirming summary judgment against an employee who “failed to present any evidence of an accommodation that would have allowed her to perform the essential functions of her pre-disability position”).

Even if Plaintiff's ankle injury did constitute a disability, Plaintiff has not shown that an inference of discrimination can be drawn from her injury and her reviews, charges and suspension. As discussed above in the context of the ADEA claims, the findings of the 3020–a hearings undermine an inference of discriminatory intent. At her first 3020–a hearing following her absences during the 2008–2010 school years, Plaintiff was admonished for her failure to provide sufficient medical documentation for her injuries and appointments. See Def. Ex. W. Plaintiff has not provided “strong evidence” showing that those 3020–a findings were biased or that did not account for previously unavailable evidence. Collins, 305 F.3d at 119. Even in this litigation, Plaintiff has not demonstrated that Defendants or the hearing officer unfairly disregarded legitimate medical needs.

Finally, Plaintiff is unable to rebut Defendant's legitimate, non-discriminatory reasons for the adverse actions. Plaintiff repeatedly failed to implement the recommendations given to her and failed to properly account for her absences. Plaintiff's ankle injury occurred in February 2008 and had no permanent effects on Plaintiff's ability to walk. Yet, Plaintiff's pattern of tardiness and absenteeism continued well into 2012 for reasons unrelated to her ankle. See, e.g., Mazur Dep. 93:14–94:2; Def. Ex, MM, Accordingly, Plaintiff cannot show that the reasons for her disciplinary action are pretext and, therefore, her ADA discrimination claims are dismissed.

2. ADA Hostile Work Environment Claims

Although the Second Circuit has not addressed whether the ADA permits hostile work environment claims, courts have nonetheless evaluated ADA hostile work environment claims under the same standard as Title VII claims. See Farina v. Branford Bd. of Educ., 458 Fed.Appx. 13, 17 (2d Cir.2011) (summary order); De La Rosa v. City of New York Police Dep't, 09 Civ. 5290, 2010 WL 4177626, at *7 (S.D.N.Y. Oct. 22, 2010), aff'd, 461 Fed.Appx. 73 (2d Cir.2012). “The standard, however, is a demanding one, and a plaintiff must establish that the alleged harassment was offensive, pervasive, and continuous enough to create an abusive working environment.” Monterroso v. Sullivan & Cromwell, LLP, 591 F.Supp.2d 567, 584–85 (S.D.N.Y.2008) (internal quotation marks omitted).

As with her ADEA hostile work environment claims, Plaintiff does not provide any evidence showing that she was harassed based on her disability in a way that was severe or pervasive enough to alter her working conditions. During her six-week ankle injury absence, Plaintiff and Dominguez only exchanged “[a] few telephone calls and a few emails” in which Dominguez sounded irritated and angry but did not otherwise make any discriminatory remarks. Mazur Dep. 35:10–23, 36:10–15. These isolated—even if heated—exchanges between Plaintiff and Dominguez during her absence are insufficient to support a hostile work environment claim. Wesley–Dickson v. Warwick Valley Cent. Sch. Dist., 973 F.Supp.2d 386, 407 (S.D.N.Y.2013) (holding that a supervisor's two comments asking about the plaintiff's chemotherapy and noting that another colleague on chemotherapy had memory troubles did not create a hostile work environment in violation of the ADA). Upon Plaintiff's return from leave, Plaintiff stated that her relationship with Dominguez was “cordial, but it wasn't what it had been before.” Mazur Dep. 51:17–21. Plaintiff does not allege that Dominguez made any additional remarks about Plaintiff's ankle injury after her return. The shift in the tenor of their relationship is also insufficiently hostile to sustain a claim. Moreover, Plaintiff's contention that she was unfairly disciplined for her absences after her ankle injury is without merit, as Plaintiff concedes that she was absent for additional, non-ankle related reasons, and her ankle injury cannot explain the absences in the later school years. See Mazur Dep. 93:5–94:2 (“Honestly I don't remember the number, but 33 were for the ankle and I know 14 were for other things like fever and my tonsils.”); Def. Ex. VIM (letter indicating that Plaintiff was absent at least 20 days in the 2011–2012 school year); cf. Alfano v. Costello, 294 F.3d 365, 377 (2d Cir.2002) (“Everyone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination.”). Plaintiff's ADA hostile work environment claims are, therefore, dismissed.

IV. Retaliation Claims

Defendants argue that Plaintiff's retaliation claims are similarly precluded by the 3020–a hearings because the hearing officer found no improper motive in Defendants' reviews or supervision of Plaintiff. However, without a clear discussion and acknowledgement from the hearing officer that the issue was considered and adjudicated in the 3020–a hearing, the Court declines to find that the retaliation claims are precluded. Nonetheless, Defendants have shown that there is no genuine dispute as to a material fact regarding all of Plaintiff's retaliation claims. A. Retaliation in Violation of the First Amendment and Equal Protection Clause

To state a prima facie case of relation, the plaintiff must show that (1) she engaged in a protected activity, (2) the employer knew about this activity, (3) the plaintiff suffered a “materially adverse action,” and (4) there is a causal connection between the protected activity and the adverse action. Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir.2012). Regarding the causal connection, the Supreme Court has recently held that it is not enough for a defendant's adverse employment action to be based in part on the plaintiff engaging in a protected activity; instead, “retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.” Univ. of Texas S.W. Med. Ctr. v. Nassar, –––U.S. ––––, 133 S.Ct. 2517, 2528, 186 L.Ed.2d 503 (2013). In the case of First Amendment retaliation, a plaintiff must show that: “(1) [her] speech addressed a matter of public concern, (2)[she] suffered an adverse employment action, and (3) a causal connection existed between the speech and the adverse employment action.” Mandell v. Cnty. of Suffolk, 316 F.3d 368, 382 (2d Cir.2003).

First, with respect to Plaintiff's First Amendment retaliation claims, Defendants argue that Plaintiff cannot show that her complaints addressed a public concern. “Whether an employee's speech addresses a matter of public concern is a question of law for the court to decide, taking into account the content, form, and context of a given statement as revealed by the whole record.” Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir.2008). If a lawsuit “concerns essentially personal grievances and the relief [a plaintiff] seeks is for [herself] alone, [then] the lawsuit is not speech on a matter of public concern and cannot sustain a First Amendment retaliation claim.” Id. at 190; see also Adams v. New York State Educ. Dep't, 08 Civ. 5996, 2010 WL 624020, at *28 (S.D.N.Y. Feb. 23, 2010) (collecting cases), report and recommendation adopted in part, 705 F.Supp.2d 298 (S.D.N.Y.2010). After evaluating the record, the Court finds that Plaintiff's complaints against Defendants involved personal grievances about her workload, reviews, discipline and suspension, and they were made in her capacity as a teacher, not a citizen. None of her complaints addressed matters beyond the scope of her own employment. Because a complaint concerning personal grievances about one's employment does not constitute speech of public concern, it cannot sustain a First Amendment retaliation claim.

Second, with respect to Plaintiff's claim of retaliation in violation of the Equal Protection Clause, courts have differed as to whether such claims are cognizable. See Giscombe v. New York City Dep't of Educ., 12 Civ. 464, 39 F.Supp.3d 396, 405–06, 2014 WL 3974582, at *8 (S.D.N.Y. Aug. 12, 2014) (noting the discrepancy in Second Circuit case law regarding the viability of Equal Protection retaliation claims). Assuming the availability of this claim, the Court nonetheless finds that Plaintiff has failed to make out a prima facie case. Plaintiff has not shown that she was treated differently from any other employees as a result of these complaints. Plaintiff filed her civil lawsuit in January 2012 and filed her discrimination complaint with the New York State Division of Human Rights on March 15, 2012. However, the alleged adverse actions against Plaintiff began well before the filing of these complaints, and Plaintiff has not pointed to any other disparate treatment or adverse actions that can be reasonably connected to her filings. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.2001) (“Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.”)

B. Retaliation in Violation of the ADEA and ADA

Claims for retaliation under the ADEA and ADA are evaluated under the Title VII McDonnell Douglas burden-shifting framework. See Widomski v. State Univ. of New York (SUNY) at Orange, 748 F.3d 471, 476 (2d Cir.2014) (ADA claims); Gorzynski, 596 F.3d at 110 (2d Cir.2010) (ADEA claims). Although Plaintiff meets the first three requirements of her prima facie case, she fails to show that there is a causal connection between her complaints of age and disability discrimination and her suspension. Turning again to the Second Circuit's guidance in Collins v. New York City Transit Authority, an independent tribunal's findings, although not per se preclusive, can negate the causal link between Plaintiff's protected activity and the resulting adverse action. 305 F.3d at 119. Plaintiff's suspension occurred after she participated in two 3020–a hearings presided over by neutral hearing officers who reviewed the evidence and found just cause to discipline her. In order to show a causal connection and survive summary judgment, Plaintiff must present strong evidence that the decision was incorrect because either new evidence was discovered or because the hearing officers were unfairly biased. Id. Plaintiff has not done so. Aside from general, conclusory claims that the hearing officers disregarded her allegations and credited Defendants' testimony, Plaintiff has not shown that either of the 3020–a hearings was deficient. Because Plaintiff cannot show that the 3020–a hearing decision was incorrect as a matter of fact, her claim that her charges and suspension were based on her discrimination complaints is without merit. See Mohammed, 932 F.Supp.2d at 430 (granting summary judgment on retaliation claims when the plaintiff could not show that 3020–a hearing was biased or flawed); Roemer v. Bd. of Educ. of City Sch., Dist. of City of New York, 290 F.Supp.2d 329, 332–34 (E.D.N.Y.2003) (holding that retaliation claim was barred based in part on 3020–a hearing findings even though retaliation was not mentioned by the arbitrator), aff'd, 150 Fed.Appx. 38 (2d Cir.2005)

C. Retaliation in Violation of the NYSHRL and NYCHRL

Plaintiff also alleges retaliation in violation of the NYSHRL and the NYCHRL. “Hostile work environment and retaliation claims under the NYSHRL are generally governed by the same standards as federal claims under Title VII.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir.2006). Accordingly, for the same reasons that Plaintiff's federal retaliation claims are dismissed, Plaintiff's NYSHRL retaliation claims are also dismissed.

Regarding the NYCHRL claims, the Second Circuit requires district courts to separately analyze them and construe their provisions more liberally than the federal or state law-based claims. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir.2013). However, “the NYCHRL is not a general civility code, and a defendant is not liable if the plaintiff fails to prove the conduct is caused at least in part by discriminatory or retaliatory motives or if the defendant proves the conduct was nothing more than ‘petty slights or trivial inconveniences.’ ” Id. at 113 (internal citation omitted). Even under the more liberal standard of the NYCHRL, Plaintiff has not shown that she was retaliated against for her discrimination complaints. Defendants have provided extensive documentary evidence showing that the conduct that gave rise to the administrative charges against Plaintiff occurred well before she filed her complaints in 2012. A documented pattern of poor performance that precedes the filing of a discrimination complaint can sever the causal link between the protected activity and the alleged retaliatory act. See Farrugia v. North Shore Univ. Hosp., 13 Misc.3d 740, 820 N.Y.S.2d 718, 728 (N.Y.Sup.Ct.2006) (holding that the plaintiff was not terminated as a result of his harassment complaints based in part on documents indicating that the plaintiff's performance was in need of improvement and the plaintiff had received warnings prior to the filing of his complaints). Moreover, Plaintiff does not refute that she was absent and that she declined to make the necessary changes to her teaching methods, thus failing to show that the reasons for her charges and suspension were a pretext for discrimination. See Mazur Dep. 46:21–24, 92:10–18; see also Chin v. New York City Hous. Auth., 106 A.D.3d 443, 444, 965 N.Y.S.2d 42 (1st Dep't 2013) (holding that the plaintiff failed to show that the reasons provided for her transfer to a field office were pretextual). Accordingly, Plaintiff's NYCHRL retaliation claims are dismissed. See, e.g., Jeffrey v. Montefiore Med. Ctr., 11 Civ. 6400, 2013 WL 5434635, at *24 (S.D.N.Y. Sept. 27, 2013) (broadly construing provisions of NYCHRL and reaching the same conclusions as with the federal and NYSHRL claims).

V. Claims Against the DOE and Dominguez

Plaintiff alleges that the DOE is liable pursuant to Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, “ Monell does not provide a separate cause of action ... it extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006). “Establishing the liability of the municipality requires a showing that the plaintiff suffered a tort in violation of federal law committed by the municipal actors and, in addition, that their commission of the tort resulted from a custom or policy of the municipality.” Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir.2013). Because Plaintiff fails to establish that an underlying constitutional violation occurred, the DOE cannot be held liable under Monell. See Faber v. Monticello Cent. Sch. Dist., 10 Civ. 01812, 2013 WL 2450057, at *6 (S.D.N.Y. June 6, 2013) (“[B]ecause the Court finds as a matter of law that Plaintiff's Fourth Amendment rights were not violated, no Monell claim can lie against the School District or the Board pursuant to § 1983.”).

CONCLUSION

For the foregoing reasons, Defendants' motion for summary judgment is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 40 and to close the case.

SO ORDERED.