Alexander v. Westbury Union Free Sch. Dist

• Decision Date: 04 November 2011
• Docket Number: No. CV10–0606(WDW).,CV10–0606(WDW).
• Citation: 829 F.Supp.2d 89,279 Ed. Law Rep. 753
• Parties: Ann ALEXANDER, Plaintiff, v. WESTBURY UNION FREE SCHOOL DISTRICT, Westbury Union Free School District Board of Education, Darnel C. Powell in his former official capacity as Principal and individually, Robert W. Root in his official capacity as Assistant Superintendent and individually, Constance R. Clark–Snead in her official capacity as Superintendent and individually, and Cassandre Spencer in her official capacity as Assistant Principal and individually, Defendant(s).
• Court: U.S. District Court — Eastern District of New York

279 Ed. Law Rep. 753

829 F.Supp.2d 89

Ann ALEXANDER, Plaintiff,

v.WESTBURY UNION FREE SCHOOL DISTRICT, Westbury Union Free School District Board of Education, Darnel C. Powell in his former official capacity as Principal and individually, Robert W. Root in his official capacity as Assistant Superintendent and individually, Constance R. Clark–Snead in her official capacity as Superintendent and individually, and Cassandre Spencer in her official capacity as Assistant Principal and individually, Defendant(s).

No. CV10–0606(WDW).

United States District Court, E.D. New York.

Nov. 4, 2011.

Laura M. Dilimetin, Dilimetin & Dilimetin, Manhasset, NY, Michael F. Kennedy, Lawrence S. Lawrence, Lawrence and Walsh, P.C., Hempstead, NY, for Plaintiff.

Adam I. Kleinberg, Melissa Lauren Holtzer, Sokoloff Stern LLP, Westbury, NY, for Defendants.

David A. Bythewood, Mineola, NY, Joshua S. Beldner, Lorraine M. Ferrigno, Law Office of Steven A. Morelli, P.C., Garden City, NY, for Defendant Darnel C. Powell.

MEMORANDUM & ORDER

WALL, United States Magistrate Judge:

Before the court, on consent of the parties, are three motions: (1) a motion for summary judgment by defendant Darnel C. Powell (DE[47] & [49] ); (2) a motion for summary judgment by defendants School District, Board of Education, Root, Clark–Snead and Spencer (“the District Defendants”) (DE[55] & [57] ); and (3) plaintiff's motion to amend the complaint (DE[50–52] ). The motions for summary judgment are opposed by the plaintiff (DE[48] & [56] ), and the motion to amend is opposed by the defendants (DE[51] & [53–54] ). For the reasons set forth herein, Powell's motion for summary judgment is granted in part and denied in part; the District defendants' motion for summary judgment is granted; and the plaintiff's motion to amend is denied. All claims are dismissed except those against Darnel Powell in his individual capacity pursuant to New York State Humans Rights Law § 296(1) and intentional infliction of emotional distress. The court will not exercise supplemental jurisdiction over those state law claims, but Alexander may pursue them in state court if she chooses to do so. The Clerk of the Court shall enter judgment accordingly.

BACKGROUND

Plaintiff Ann Alexander filed the Complaint in this action in February 2010, asserting claims based on alleged employment discrimination. She alleges (1) sexual harassment; (2) intentional infliction of emotional distress; (3) negligent infliction of emotional distress; (4) hostile work environment; and (5) respondeat superior as her causes of action. Complaint, DE[1]. Although she does not specify the statutory bases for her causes of action in those sections, aside from a reference to Title VII in her first cause of action, she does allege that the action is brought pursuant to Title VII, section 1981, the Fourteenth Amendment, and the New York Human Rights Law § 296. Complaint, DE[1], ¶ 1. She bases subject matter jurisdiction on Title VII. Id. ¶ 2.

The facts underlying the dispute are set forth here as stated in the Complaint and in the parties' 56.1 Statements. I note that the plaintiff's counterstatements are nearly useless to the court on consideration of these motions. Many, if not most, of the defendants' factual allegations are flatly denied by the plaintiff, without any citations to evidentiary support for the denials, and often regarding facts which are fully supported by documentary evidence or Alexander's own deposition testimony. In these instances, I deem the defendant's statement of fact to be admitted. See Local Rule 56.1(d). In the rare instances where the plaintiff interposes a viable denial of a material fact, it is noted. Not every fact set forth in the 56.1 Statements is repeated here, but only those facts necessary to a determination of the motions. I will address each of the motions separately, and begin with the facts as set forth in the District Defendants' 56.1 statement and the counterstatement on that motion. Additional facts from Powell's statement and the plaintiff's counterstatement to his motion are addressed separately.

Facts Underlying the District Defendants' Motion:

Alexander began working for the Westbury School District at the middle school in 1993, and was granted tenure in 1995. She is still employed by the District at the middle school. The District adopted a sexual harassment policy in 1997, and Alexander received a copy of it in 1997 and 2002. Alexander Dep., Ex. D at 21–22, Ex. G ¹. Defendant Powell, the principal of the middle school from 2003 to 2009, also received a copy when he was hired in July 2003. Powell Dep., Ex. I at 102, Ex. H. Powell also acknowledges that he received training on the topic of sexual harassment at annual conferences. Ex. I at 102–03.

The defendants assert that Alexander had some disciplinary problems prior to the alleged harassment, but those details are irrelevant to the resolution of these motions and need not be repeated here.

The District Defendants' 56.1 Statement next moves on to the incidents of alleged harassment in 2005. Alexander denies almost all of the factual allegations, despite the fact that they are supported by her own deposition testimony, and she offers no evidentiary support at all for her denials. The facts set forth and evidenced by the defendants and deemed admitted ² by the plaintiff's unsupported denials are as follows. See generally DE[55–21], ¶¶ 41–60, Ex. D, 27–67. In September 2005, Powell approached Alexander at a school dance and invited her to have lunch with him the following Monday. Alexander at first ignored his invitation, but later agreed to the lunch but did not show up for it. Powell did not comment on her failure to appear for lunch and did not repeat the invitation until approximately December 2008. After September 2005, Powell allegedly called Alexander into his office occasionally for meetings, at which he would tell Alexander about complaints made against her by parents or students, but not identifying the complainants. Alexander admits that Powell had no obligation to identify the complainant and that she did not ask the union if he was required to do so. She received no disciplinary notices about the alleged complaints. When Alexander got up to leave the room, Powell would reach out to embrace and kiss her. (Alexander admits this.) She turned her face so that the kisses landed on her cheek, and Powell never kissed her on the lips. At one meeting, Powell allegedly told Alexander that he had been interested in her years before, as “a young boy,” but now that he was a “damn ass grown man” they could “take it out of the building.” Alexander responded by gesturing toward pictures of Powell's wife and children, indicating that she was flattered, but she respected marriage. She then walked out of his office. Powell never told Alexander that he could do anything for her career if she gave in to his advances.

Alexander claims that during the 2005/06 school year Powell tried to transfer her to the MARS program, which assisted students needing extra care, for the following year. Powell helped to found the MARS program and testified that he did not view asking someone to join it as an insult, although Alexander viewed it as punishment. Alexander told him she did not want to work in the MARS program, but he told her they needed “heavy hitters” like her. Toward the end of the 2005–06 school year, Alexander went to defendant Robert Root to complain about the proposed MARS assignment. Root indicated he would take care of the situation, as the proposed assignment would have required Alexander to teach a number of seventh grade classes, which she was not certified for. Alexander is certified to teach grades K–6. Alexander says that Root handled the situation to her satisfaction. At the time she went to Root about the MARS issue, Alexander did not mention any incidents of harassment by Powell. Powell issued an unsatisfactory review at the end of the 2005–06 year (incorrectly pleaded as the 2006–07 school year in the Complaint), but the union got involved and the review was amended to satisfactory.

The District hired defendant Spencer as an assistant principal at the middle school for the 2006–07 school year, after Powell had sought Alexander's participation in the MARS program. During the year, Alexander once referred to her students as “acting like a bunch of crack babies,” which she admitted was an inappropriate remark that came from her frustration with students who had serious disciplinary problems. At the end of the 2006–07 school year, Spencer gave Alexander a satisfactory summative evaluation. Ex. R.

In September 2007, Alexander was in the middle school's crowded main office talking to a colleague when Powell interrupted and said “I'm going to get my sugar.” Powell then leaned over the counter and kissed Alexander on the cheek. In Spring 2008, Alexander was leaving the building when Powell, who was outside the building, motioned for her to wait for him. He asked her why she was in a hurry and she said she was on her way to class. Powell then allegedly put his hands on Alexander's shoulders, looked at her, and said “You are going to give me some.” Alexander asked, “some of what?” and he answered “You know what.” He then walked away and said they would discuss it another time.

In August 2008 Alexander saw Powell in the school parking lot and he asked her if she had ever hear of or been to “Hedonism.” She had not heard of Hedonism at the time, but now believes it to be “a place in Jamaica where you go for free sex.” Powell told her he had been there and if she ever went she should think of him. As Alexander walked to her car, Powell followed her and asked if he could drive her car. She told him he could drive it around the block. Powell said he wanted Alexander in the car and asked when she was going to “fuck him.” Alexander was shocked and asked Powell how his wife and daughters were doing. He said they were...