Einsohn v. N.Y.C. Dep't of Educ.
| Decision Date | 30 March 2022 |
| Docket Number | 19-CV-2660 (RPK) (RER) |
| Parties | MARC EINSOHN, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION and HOWARD KWAIT, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Marc Einsohn brings this action alleging that defendants Howard Kwait and the New York City Department of Education (“DOE”) discriminated and retaliated against him because of his disability, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq. Defendants also allegedly retaliated against plaintiff for engaging in protected speech. See Compl. (Dkt. #1). Defendants have moved for summary judgment on all of plaintiff's claims. See Defs.' Mem. in Supp. of Mot. for Summ. J. (Dkt. #35) ( ). For the reasons that follow defendants' motion is granted in part and denied in part.
The following facts are taken from defendants' Rule 56.1 statement and relevant portions of the record and are undisputed unless otherwise noted.
Plaintiff is employed by the DOE as an assistant principal at John Browne High School (“JBHS”) in New York Defs.' Rule 56.1 Statement ¶ 1 (Dkt. #34). Principal Howard Kwait was plaintiff's supervisor from September 2010 to May 11, 2018. Id. ¶ 4. Plaintiff is in charge of the JBHS foreign languages department. See Id. ¶ 1.
On June 7, 2017, plaintiff informed Kwait that plaintiff “would be taking off . . . June 12[] and June 13[] . . . for immediate medical care.” Id. ¶ 14. Kwait approved plaintiff's request for leave. Id. ¶ 15.
Sometime later that month, Kwait and plaintiff met to talk about plaintiff's teaching responsibilities for the upcoming school year. Id. ¶ 13. Plaintiff had scheduled himself to teach one second-period Spanish class during the 2017-2018 school year. See Decl. of Isaac S. Baskin Ex. B at 18:4-8 (Dkt. #33-2). But Kwait assigned plaintiff to teach two Spanish classes during periods six and eight. See Defs.' Rule 56.1 Statement ¶ 17; Decl of Isaac S. Baskin Ex. H (Dkt. #33-8); id. Ex. I (Dkt. #33-9). Plaintiff's period six class was scheduled in Room 150 and his period eight class was scheduled in a trailer outside the school building. Defs.' Rule 56.1 Statement ¶ 20. Plaintiff's office was in Room 252. Id. ¶ 21.
During the 2017-2018 school year, plaintiff was the only assistant principal assigned to supervise the JBHS foreign languages department and the only assistant principal licensed to teach Spanish at JBHS. Id. ¶¶ 2-3. That year, JBHS enrolled 3, 600 students. Id. ¶ 10. Due to high enrollment, some classes were held in trailers, and students started and ended the school day at three different times. See Decl. of Isaac S. Baskin Ex. F at 50:18-51:3 (Dkt. #33-6); Defs.' Rule 56.1 Statement ¶¶ 11-12.
Plaintiff sent Kwait an email on August 28, 2017, asking that Kwait reduce plaintiff's teaching load to one class. See Decl. of Isaac S. Baskin Ex. I. The record does not include Kwait's response. But Kwait appears to have denied plaintiff's request. See Id. Ex. H.
Two days later, plaintiff emailed Kwait about a surgery that plaintiff had scheduled for September 5, 2017. Defs.' Rule 56.1 Statement ¶ 22. Plaintiff told Kwait that plaintiff would need about six weeks to recover. See Id. ¶ 23. Plaintiff anticipated that he would return to work on November 1, 2017. See Decl. of Isaac S. Baskin Ex. C (Dkt. #33-3). The DOE subsequently approved plaintiff's request for sick leave. See Defs,' Rule 56.1 Statement ¶ 26. While plaintiff was on leave, Kwait assigned other teachers to cover plaintiff's classes. Id. ¶ 29.
On September 5, 2017, plaintiff had the right side of his colon surgically removed. See Id. ¶ 7; Decl. of Isaac S. Baskin Ex. B at 19:7-13. Dr. Owen Su performed the surgery. See Decl. of Isaac S. Baskin Ex. B at 19:14-15; Defs.' Rule 56.1 Statement ¶ 27. Plaintiff states that he suffered from complications that limited his ability to walk, bend, and stand. See Decl. of Isaac S. Baskin Ex. B. at 20:17-21; Defs.' Rule 56.1 Statement ¶¶ 8, 30.
Dr. Su faxed a letter to Kwait's payroll secretary on November 1, 2017, explaining that plaintiff could return to work that day. See Decl. of Isaac S. Baskin Ex. E (Dkt. #33-5). The letter stated that plaintiff could not “participate in hall duty or hall patrol and may not be given more than one teaching assignment.” Ibid. Kwait scheduled a meeting for November 10, 2017, to discuss the proposed accommodations with plaintiff and plaintiff's union representative. Defs.' Rule 56.1 Statement ¶ 32.
In addition, Kwait and Superintendent Elaine Lindsey requested a medical evaluation of plaintiff pursuant to New York Education Law § 2568. Defs.' Rule 56.1 Statement ¶¶ 33-34. That statute permits superintendents of certain school districts in New York to require employees “to submit to a medical examination by a physician or school medical inspector of the board[] in order to determine the mental or physical capacity of such person to perform his duties.” N.Y. Educ. Law § 2568. Plaintiff's evaluation was eventually scheduled for December 13. Defs.' Rule 56.1 Statement ¶ 37.
Plaintiff's condition worsened, and on November 10, 2017, Dr. Su faxed Kwait a letter stating that plaintiff was “unable to work” and asking Kwait to “extend [plaintiff] all reasonable considerations.” Decl. of Isaac S. Baskin Ex. G (Dkt. #33-7); see Id. Ex. B at 31:1-9. Eleven days later, plaintiff emailed Kwait a request to take leave until January 2, 2018. Defs.' Rule 56.1 Statement ¶ 38. Kwait endorsed and the DOE approved plaintiff's request. See Id. ¶¶ 39-40.
The DOE's medical inspector examined plaintiff on December 13, 2017, in accordance with Section 2568. See Id. ¶ 41. As reported in the DOE's records, plaintiff requested “[n]o more than [one] teaching assignment in a location near office in [e]arly part of the day[] [and] [n]o participation in [h]all duty/[h]all [p]atrol.” Decl. of Isaac S. Baskin Ex. M (Dkt. #33-13). The DOE doctor found that plaintiff's functional limitations were to “[a]void excessive walking[] [and] long term standing/[b]ending (due to mobility [i]ssue).” Ibid. The doctor concluded that plaintiff's accommodation request should be sent to the DOE's Office of Equal Opportunity and Diversity (“OEO”) “to determine whether the request can be reasonably accommodated.” Ibid.; Defs.' Rule 56.1 Statement ¶ 44.
Plaintiff's accommodation request was then forwarded to the deputy director of the OEO, Matthew Riordan. Defs.' Rule 56.1 Statement ¶ 45. Riordan asked Kwait whether plaintiff's requests could be accommodated. Id. ¶ 46. Kwait responded by email that some of plaintiff's accommodation requests were feasible but others put “an undue burden and hardship onto the school.” See Decl. of Isaac S. Baskin Ex. H.
Kwait said that plaintiff's classes could be relocated from Room 150 and the outside trailer to Room 245-classroom much closer to plaintiff's office in Room 252. Ibid. Kwait also permitted plaintiff to remain seated while teaching. Ibid.
But Kwait explained that plaintiff's request to teach one class could not be accommodated because JBHS was “already short licensed Spanish teachers.” Ibid. Kwait also noted that during plaintiff's leave, his classes were “taught by teachers in other departments at a cost of $12, 500 per teacher.” Ibid. Kwait suggested that the “best interests of . . . students” and the “school budget” prevented further accommodation. Ibid.
Kwait also rejected plaintiff's request to teach at an earlier time. See ibid. Kwait explained that due to plaintiff's and students' schedules, plaintiff's request to teach at an earlier time could only be accommodated if his classes were in periods two and three. Kwait said that he could not “accommodate this [modification] based on the needs of our school, ” and that the granting the request would cause “an undue hardship.” Ibid. He did not explain further why that was so. Ibid.
Finally, Kwait stated that the school could not accommodate plaintiff's request to be relieved from hall duty. See ibid. Kwait pointed out that there had been a stabbing at JBHS in April 2017 and a gun in the building in November. See ibid. And Kwait noted that the DOE's Office of Safety and Youth Development had conducted a “comprehensive safety review” of JBHS and had “stated the need for [assistant principals] to serve as a part of floor teams to help contribute to a safe and secure learning environment.” Ibid. But Kwait thought that plaintiff could be accommodated “by placing a chair in the corridor for the minutes before classes let out, passing[, ] and a few minutes into the period until the hallways clear” so that plaintiff could serve “as another pair of eyes with a radio who can assist from [a] seated position . . . if mobility may be an issue.” Ibid.
Following Kwait's email, the OEO accommodated plaintiff by moving his classes to Room 245, “permitting [plaintiff] to sit as needed during instructional time, and providing [plaintiff] with a chair so that he can be seated when performing hall duty.” Id. Ex. N (Dkt. #33-14). The OEO found that plaintiff's other requested accommodations “would present an undue hardship for the school.” Ibid.
On January 21, 2018, plaintiff went back to work with the accommodations provided by the OEO. Defs.' Rule 56.1 Statement ¶ 65. In early May, Kwait was removed from JBHS and replaced with a different principal. Id. ¶¶ 66-67. Plaintiff's performance was rated “satisfactory” for the 2017-2018 school year. Id. ¶ 68.
Plaintiff filed a charge of disability discrimination with the United States Equal Employment...
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