Levine v. Smithtown Cent. School Dist., Civil Action No. 05-1728.

Decision Date14 July 2008
Docket NumberCivil Action No. 05-1728.
Citation565 F.Supp.2d 407
PartiesMelissa LEVINE, Plaintiff, v. SMITHTOWN CENTRAL SCHOOL DISTRICT, Charles Planz, Deborah King, Stuart Grossman and Susan Klein, individually and in their official capacity, Defendants.
CourtU.S. District Court — Eastern District of New York

Leeds, Morelli & Brown, P.C., by: Rick Ostrove, Esq., Carle Place, NY, for Plaintiff.

Law Offices of Peter G. Albert, by: Peter G. Albert Esq., Commack, NY, for Defendants.


HURLEY, Senior District Judge:

Plaintiff Melissa Levine ("Plaintiff or "Levine") commenced this action alleging disability discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., 42 U.S.C. § 1983, and the New York Human Rights Law, N.Y. Exec. Law § 296 et seq.1 Presently before the Court is a motion for summary judgment on behalf of all the defendants. For the reasons discussed below, the motion is granted on Plaintiffs federal claims. Moreover, the Court declines to exercise supplemental jurisdiction over Plaintiffs state claim and therefore dismisses it without prejudice.


The following facts are undisputed unless otherwise noted.

Levine commenced employment with defendant Smithtown Central School District (the "District") on or about September 1, 1999. She was hired by the District as a school psychologist for a standard three year probationary term.2

During the first two years of her probationary appointment Levine received no significant negative work performance evaluations. During those two years Levine was not assigned full-time to a particular building within the District.3

Levine's final probationary year was the 2001-2002 school year, during which she was assigned as the full-time school psychologist to the Tackan Elementary School ("Tackan"). This was the first time that Levine was assigned to work on a full-time basis in a single school building in the District. Defendant Susan Klein ("Klein") was the principal of Tackan at that time. The remaining individual defendants, Charles Planz ("Planz"), Deborah King ("King") and Stuart Grossman ("Grossman"), were the Superintendent of the District, the Assistant Superintendent for Personnel, and the Administrator for Special Education and Special Services, respectively.4 Grossman was Levine's immediate supervisor during the 2001-2002 school year, having been hired on or about August 2001, and was responsible for evaluating Levine and making the initial recommendation respecting the conferral of tenure upon Levine. As principal of Tackan, Klein also served as Levine's supervisor during the 2001-2002 school year.

Levine sustained a concussion on October 18, 2001 while trying to restrain a student. She was out on leave from that date until November 13, 2001.

According to Grossman and Klein, they had concerns regarding Levine's work performance and professional abilities starting in September 2001. Klein testified at her deposition that the first "red flag" was when Levine was asked to talk to students on September 11, 2001 about the terrorist attacks, but declined because she said she was too upset to talk about it. According to Klein, "we need a psychologist who can work with students and this was obviously a very traumatic thing, students were very upset and we certainly needed the students to have support and it did not happen through Dr. Levine." Grossman explained that he determined that Levine failed to complete psychological testing of disabled students in a timely fashion and failed to provide counseling services to disabled students who were mandated to receive such services. Grossman also determined that Levine lacked a sufficient professional commitment and failed to follow-through on her professional responsibilities as a school psychologist.

By memorandum dated November 8, 2001, Levine was advised for the first time of Grossman's concerns regarding her work performance. Levine responded to the memo, explaining, among other things, that when she came to Tackan she had ten to fifteen triennial evaluations5 of disabled students that needed to be finished and thus had to complete a backlog of work. She also maintained that her failure to provide certain counseling services to disabled students who were mandated to receive such services was caused by her absences, her attendance at building or district team meetings, or her being called to intervene in a crisis situation.

According to Grossman, on or about November 2001, he made a preliminary determination that he would not recommend Levine for tenure.6 Between September and early December 2001, Grossman and Klein discussed Levine's work performance. Like Grossman, Klein expressed concerns regarding Levine's job performance at Tackan. During this same period of time Klein advised Planz that Levine had failed to perform, or failed to timely perform, several of her duties and responsibilities as a school psychologist.7

On December 7, 2001, Grossman conducted a formal observation of Levine in her capacity as the Chairperson of the building level Sub-Committee on Special Education (SCSE), which he memorialized in a Teacher Evaluation Report. Grossman described the SCSE meeting he observed, and then provided the following analysis:

Dr. Levine asked a number of openended questions in order to clarify and expand on comments made about the student. She provided clinical analysis in a manner that offered the parent insight into the relationship between the testing and the student's progress. She approached the meeting in a positive and proactive way that appeared to make the parent feel comfortable. However, there was a sense from the observer that everyone did not share the committee's recommendation. It is important for the chairperson of the subcommittee on special education to take a leadership role in developing a consensus for the committee. It is always helpful to have a prior dialogue with teachers in order to come to the meeting and present to the parent clear and concise recommendations. The regular education teacher was not aware of the decision to declassify and the conversation between her and Dr. Levine seemed to suggest that there was no prior conversation concerning this case. It is important for Dr. Levine to clearly articulate the guidelines concerning a classification of special education and the reasons why a student may not be eligible.

According to Grossman, immediately after his observation of Levine, he made the decision that he would not recommend Levine for tenure.8 Planz, the superintendent, confirms that in early December 2001 Grossman informed him that he had observed Levine that she did not perform well. According to Planz, Klein essentially corroborated Grossman's reports, opinions and evaluations of Levine's performance. During his discussions with Grossman and Klein, the issues of whether Levine should receive tenure was discussed and in each discussion, it was the recommendation of both Grossman and Klein that Levine did nojt demonstrate professional competence on standards of performance to warrant receiving tenure. According to Planz, "[t]he decision to grant a probationary employee tenure is not a static determination, nor is it tied to a specific time line. Generally, the initial decision of whether to grant tenure to a probationary employee is made during the beginning of the third year of the employee's probationary term; but the decision is not communicated to the employee until the spring of the third year...." Klein's deposition testimony corroborates this time line. According to Klein, Grossman would have received, from the Personnel Office in early December 2001, a list of those individuals for whom he needed to prepare recommendations regarding the grant or denial of tenure.

Starting from on or about December 10, 2001, Levine was continuously absent from work. She was, however, paid her salary and received benefits. By letter dated December 28, 2001, Levine informed King, the District's Assistant Superintendent for Personnel, that Levine had bipolar disease and needed a continuation of her sick leave. Levine requested several additional extensions of her sick leave, all of which were granted. By letter dated February 28, 2002, Levine advised King of her diagnosis of Lyme disease. By letter dated March 15, 2001, Levine requested that her sick leave be extended through the end of the 2001-2002 school year because of her bipolar disorder and Lyme disease. She included notes from two of her doctors advising that she must remain out of work through the end of the school year. Levine did not, however, request an extension of her probationary period.

Klein sent Levine a letter dated March 6, 2002, while Levine was still on sick leave, setting forth concerns about Levine's performance. The concerns included the absence of minutes for SCSE meetings chaired by Levine; the absence of logs for October and December SCSE meetings as required by the Office of Special Education; the failure to share certain history regarding a child with that child's current teacher; and the failure to provide mandated counseling for two students as required by their IEPs. In addition, the letter referred to the SCSE meeting at which Levine was evaluated by Grossman. According to Klein:

[Levine] declassified a student but it was not clear to the parents, teachers, [ ]or Dr. Grossman who also attended a meeting. The parents were confused and upset when they found out about the determination of the SCSE because they were under the impression that their child would continue to be classified and the committee would reconvene in the spring. I have since spoken to the parents to rectify the situation. The student will remain classified and we will meet in the spring to discuss declassification and placement...

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