Harewood v. N.Y.C. Dep't of Educ.

Decision Date22 February 2021
Docket Number18 Civ. 5487 (KPF)
PartiesHARRIET HAREWOOD, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, ROBERT MERCEDES, and ANDREA VARONA, in their individual and official capacities, Defendants.
CourtU.S. District Court — Southern District of New York
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

KATHERINE POLK FAILLA, District Judge:

Plaintiff Harriet Harewood brought this action against her former employer, the New York City Department of Education (the "DOE"), as well as Robert Mercedes and Andrea Varano (collectively, "Defendants"), who are, respectively, the Principal and Assistant Principal of Middle School 390 ("MS 390"). In a prior decision, this Court adopted the Report and Recommendation of United States Magistrate Judge Katharine H. Parker in dismissing certain of Plaintiff's claims and allowing others to be repleaded. See Harewood v. N.Y.C. Dep't of Educ., No. 18 Civ. 5487 (KPF) (KHP), 2019 WL 3042486 (S.D.N.Y. May 8, 2019) ("Harewood I"), report and recommendation adopted, No. 18 Civ. 5487 (KPF), 2019 WL 2281277 (S.D.N.Y. May 29, 2019) ("Harewood II").1 Afterextensive discovery, Defendants moved for summary judgment as to Plaintiff's remaining claims. Pursuant to a second referral from this Court, Judge Parker issued a 40-page Report and Recommendation dated November 30, 2020 (the "Report," a copy of which is attached), recommending that Defendants' motion for summary judgment be granted in its entirety. The Court has examined with care each of Plaintiff's objections to the Report and, for the reasons set forth in the remainder of this Opinion, adopts the Report in its entirety.

BACKGROUND
A. Factual Background2

The Court adopts as accurate the statement of facts set out in the Report. (Report 2-14). In particular, the Court believes that Judge Parker has accurately summarized Plaintiff's remaining claims, and thus repeats that summary here:

Plaintiff, a Black woman born in 1961, was a tenured art teacher in the New York City public school system. She worked at MS 390 in the Bronx from 1999 through June 2017, when she retired. At the time she retired, she was one of the oldest staff members with the most seniority at the School. As discussed below, she contends that commencing in the 2013-2014 school year, she was subjected to race and age-based discrimination in favor of younger and/or Hispanic staffculminating in her constructive discharge at the end of the 2016-2017 school year. She asserts that the discrimination was carried out by Robert Mercedes, the School's Principal, and Andrea Varona, the School's Assistant Principal. Mercedes was the Principal during the entirety of Plaintiff's tenure there. Varona began working as Assistant Principal in the 2015-2016 school year.

(Id. at 2 (footnotes and record citations omitted)). Because Plaintiff's objections contest certain of the factual underpinnings of the Report, the Court briefly summarizes the relevant background; to the extent that Plaintiff seeks to raise a genuine dispute of material fact in her Objections, the putative dispute is addressed in greater detail infra.

According to Plaintiff, the first form of age and/or race discrimination visited upon her by Defendants occurred in the 2013-2014 school year, and concerned reduced opportunities for "per session" work, for which she received additional income at an hourly rate. (Report 2-3). Having obtained per session work as a morning scheduler for several years, Plaintiff was replaced in the 2013-2014 school year by Jose Duran; Plaintiff notes that Mr. Duran is Hispanic, while Defendants note that Mr. Duran already had morning obligations, and could perform the scheduler function for no additional pay. (Id. at 3).3

Other developments in the 2013-2014 school year were cited by Plaintiff as evidence of discrimination, including changes to her lunch period; theaddition of teaching periods to her work week; her reassignment to cover a homeroom class; and the administration's repeated failure to provide her with sufficient art supplies. (Report 4). Plaintiff came to believe that these episodes evinced age and/or race discrimination after (i) hearing Mercedes state in staff meetings that senior staff was "too expensive" and that he would reach out to DOE to effect the termination of senior staff, and (ii) observing several older and/or Black teachers leaving MS 390 during the school year. (Id. at 4-6).

Plaintiff's problems continued into the 2014-2015 school year. Plaintiff lost additional opportunities for per session income when (i) an afterschool art program with which she had previously been involved was terminated and never formally reinstated and (ii) Mercedes refused to authorize per session pay for Plaintiff to help students prepare for a bookmaking competition. (Report 6-7). In the spring of that year, Plaintiff lost her dedicated art classroom, ultimately requiring her to store her art supplies in various places and then cart them, as needed, into other teachers' classrooms. (Id. at 7-8).

By the 2015-2016 school year, Plaintiff's lack of a dedicated classroom as well as certain physical limitations caused her to request a key to use MS 390's elevator. Plaintiff received a key, and had use of it until June 2017, at which point Mercedes requested the return of all such keys. (Report 8-9). During the time she had the elevator key, however, Plaintiff believed that she was hassled unnecessarily about it. (Id. at 9). Other problems during the school year recalled by Plaintiff included (i) an incident in which a student in Plaintiff's writing class wrote disparaging comments about Plaintiff for which the studentwas not disciplined; (ii) a change in Plaintiff's lunch period that resulted in her eating alone and without the ability to use a classroom; and (iii) Plaintiff's inability to use a room where certain Dominican staff members stored their lunches in a padlocked refrigerator. (Id.).

One positive development from the 2015-2016 school year was Plaintiff's participation in an afterschool program called "GEAR-UP," administered by or under the auspices of Lehman College. (Report 9). Plaintiff enjoyed her work with the program, including the per session income it provided, but was unable to continue with the program in the 2016-2017 school year, when it switched to a Saturday schedule, which was a day Plaintiff preferred not to work. (Id. at 10). Other events of that school year cited by Plaintiff as evidence of Defendants' age and race discrimination included: (i) a new schedule that required her to pick up students from the lunchroom each day; (ii) allegations that Plaintiff had inflicted corporal punishment on a student, the investigation into which resulted in a disciplinary letter to Plaintiff; and (iii) less favorable teaching evaluations than Plaintiff had received in the past. (Id. at 10-12).

As noted, Mercedes sought return of Plaintiff's elevator key in May 2017. (Report 12). According to Plaintiff, the twin deprivations of a dedicated classroom and an elevator key, as well as other workplace stressors, caused her physical condition to worsen, resulting in her taking a leave of absence from May 28, 2017, to June 14, 2017. (Id.). Two weeks after her return, on June 28, 2017, Plaintiff received a second disciplinary letter, this time for alleged verbal abuse of her students. (Id. at 13). A few days later, on July 1,2017, Plaintiff formally retired; she alleges in this case, however, that she was constructively discharged. (Id.).

A few days after her retirement, Plaintiff filed a charge with the New York State Division of Human Rights (the "SDHR"), which charge was shared with the federal Equal Employment Opportunity Commission (the "EEOC"). (Report 13). Approximately one year later, Mercedes requested that Plaintiff come back to MS 390 to discuss outstanding misconduct investigations — even though, according to Plaintiff, Mercedes had previously represented that such matters were closed. (Id. at 14). Plaintiff believed this request and the attendant notices she received to be retaliatory for the charges she filed.

B. Procedural History and Pretrial Motion Practice

Plaintiff filed her initial complaint in this Court on June 18, 2018, after receiving a right to sue letter. (Dkt. #1). The case was assigned to United States District Judge Robert W. Sweet. Defendants moved to dismiss the complaint, and the motion was referred to Judge Parker for a Report and Recommendation after Judge Sweet's untimely passing. (Dkt. #29). The case was then reassigned to this Court on April 8, 2019. (Minute Entry for April 8, 2019).

Judge Parker filed a Report and Recommendation regarding Defendants' motion to dismiss on May 8, 2019. (Dkt. #37). See Harewood I, 2019 WL 3042486. In broad summary, Judge Parker recommended that this Court (i) dismiss Plaintiff's claim under 42 U.S.C. § 1981 with prejudice because it was unavailable as a matter of law against state actors, and (ii) dismissPlaintiff's claim under 42 U.S.C. § 1983 with prejudice for failure to state a claim. Id. at *9-11. She further recommended that the Court dismiss Plaintiff's state and local claims with prejudice pursuant to the election of remedies doctrine. Id. at *11. However, Judge Parker recommended that the Court dismiss Plaintiff's remaining claims under Title VII and the ADEA without prejudice, so that Plaintiff could replead them in an amended complaint. Id. at *4-9, 11. Neither side filed an objection to Judge Parker's May 8, 2019 Report and Recommendation, and this Court adopted it in full on May 29, 2019. (Dkt. #38). See Harewood II, 2019 WL 2281277.

Plaintiff filed a First Amended Complaint on June 14, 2019 (Dkt. #39), and a Second Amended Complaint on June 20, 2019 (Dkt. #43). The case then proceeded to discovery and an unsuccessful mediation. (See, e.g., Dkt. #59 (letter requesting extension of discovery), 68 (mediator's report)). Defendants filed their opening papers in support of their motion for summary judgment on ...

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