Mescall v. Marra, 98 Civ. 0017 WCC.
| Citation | 49 F.Supp.2d 365 |
| Decision Date | 11 June 1999 |
| Docket Number | No. 98 Civ. 0017 WCC.,98 Civ. 0017 WCC. |
| Parties | Elizabeth MESCALL, Plaintiff, v. Reginald F. MARRA, individually, and Yonkers City School District, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Lovett & Gould, White Plains, New York, NY, Jane Bilus Gould, of counsel, for plaintiff.
Querrey & Harrow, Ltd., New York City, NY, Mark J. Krone, of counsel, for defendants.
Plaintiff Elizabeth Mescall ("Mescall") brings this action against the Yonkers City School District, her former employer (the "District"), and Reginald F. Marra, the District Superintendent, individually ("Marra"), alleging that she was wrongfully denied tenure in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101-12217, the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the First Amendment of the United States Constitution.1 Defendants moved for summary judgment on all claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. On May 26, 1999, we issued an Order granting in part and denying in part the relief sought, indicating that we would file this opinion shortly thereafter explicating our reasons for the Order.
The following facts are undisputed unless otherwise stated. Mescall commenced employment with the District for a threeyear probationary term as a guidance counselor on September 8, 1994. During the 1994/95 school year, she worked two days per week at the Early Childhood Center and three days per week at the Enrico Fermi Elementary School. That year, Wendy London, Principal of the Early Childhood Center, Janet Rosenblatt, Assistant Principal of the Early Childhood Center, and Charles Whelan, Principal of the Enrico Fermi Elementary School rated Mescall's job performance as satisfactory in their written performance reviews. However, the District records and Mescall's Annual Evaluations indicate that she was absent seventeen days during the school year. Mescall does not dispute the number of absences recorded during her first probationary year.2 She does, however, deny that Ms. London approached her to discuss the issue of attendance.
For the 1995/96 school year, Mescall transferred to the Foxfire Elementary School. Ms. London also left the Early Childhood Center to become Principal of Foxfire. Between November 1, 1995 and December 15, 1995, Mescall was absent five days. Then on December 18, 1995, she was involved in a car accident. As a result of the accident, Mescall complained of back and neck pain, as well as depression, anxiety and fear of driving. In January of 1996, Mescall was absent for nine days which she attributes to a fall on some ice. In April of 1996, Mescall claims that she re-injured her neck when reaching for a box on a high shelf, causing her to be bed-ridden and unable to walk, for three days.3 In total, Mescall was absent twenty-one days during the 1995/96 school year.4
Although Mescall's 1995/96 Annual Evaluation was again satisfactory, Ms. London commented as follows, Ms. London also mentioned that "[t]here were times when Mrs. Mescall was hesitant or refused to work with a particular youngster." This apparently refers to Mescall's refusal to work with a kindergartener who had previously thrown a chair across a room and thrown himself at Mescall, aggravating her back injury. Despite Ms. London's directive that Mescall assist a teacher's aid in a classroom during recess, Mescall refused to enter the classroom because the physically assaultive child was present.
When Mescall explained that she was not required to be in the classroom during recess, Ms. London told Mescall to contact the union for guidance on the issue. Mescall subsequently contacted John Eshoo ("Eshoo"), Vice President of the Yonkers Federation of Teachers (the "Union"), who advised Mescall that she was not contractually obligated to do "lunch duty."
For the 1996/97 school year, Mescall transferred to P.S. 21 where she spent her third and final probationary year as a guidance counselor. In September 1996, Ana Celia Delgado ("Delgado"), the Principal of P.S. 21, and J. Menkes Castronova, the Assistant Principal, distributed a memorandum to all non-tenured teachers requiring them to submit lesson plans. In addition, Delgado asked Mescall to deliver a classroom presentation every day. Mescall contacted Eshoo to inquire whether she was contractually obligated to prepare lesson plans and daily classroom presentations. Eshoo advised Mescall that, although not contractually obligated to do so, she should obey her Principal's directives, and let the Union address her complaints through the grievance process.5 Eshoo then contacted Paul Citarella ("Citarella"), the District's Director of Personnel who, in turn, contacted Delgado.6 Mescall alleges that Delgado reprimanded her for contacting the Union and threatened to rate her performance as unsatisfactory if she continued to bring the Union into the building.7 Mescall further alleges that Delgado commented about Mescall's union affiliation in front of another school employee.
In the fall of 1996, in response to the complaints of Mescall and other teachers at P.S. 21, Walter Tice ("Tice"), the President of the Union, Eshoo and Lynn Edelstein ("Edelstein") distributed anonymous questionnaires to the staff of P.S. 21 to inquire about Delgado's anti-union activities. Edelstein then summarized the responses and prepared discussion notes for a conference with Betsey Hardeman ("Hardeman"), the District's Deputy Superintendent. At the end of October, 1996, Tice and Edelstein informed Hardeman of their findings regarding Delgado's anti-union stance, the fear among the faculty, and Delgado's practice of confronting staff members who have contacted the Union. Hardeman said that she would look into the matter but never notified Edelstein of any action taken by the District.
Eshoo met face-to-face with Hardeman on November 6, 1996 and November 18, 1996 to discuss again the Union's concerns. Without mentioning Mescall by name, Eshoo discussed her previous confrontation with Delgado and asked Hardeman to speak with Delgado about her anti-union statements to the staff. Again, Hardeman failed to apprise the Union of any action taken in this regard.
Mescall claims that in or around January of 1997, her mental impairment (i.e., stress, depression and anxiety) became disabling, causing her to suffer from rashes, hives, dizzy spells and fainting. She attributes the increasing severity of her mental condition to her father's diagnosis of stage-C colon cancer, and to working under Delgado.8
Two more confrontations between Mescall and Delgado occurred in early February 1997. In one instance, Mescall was called into Delgado's office to discuss a report by Sylvia Zaluski, Mescall's program coordinator, that Mescall had presented an untimely, off-topic and disorganized classroom presentation. The other incident concerned Delgado's request that Mescall work with a group of students during recess. Mescall refused to hold what she characterized as detention on the grounds that her contract prohibited "lunch duty" and the disciplinary nature of detention would interfere with her relationship with the students. Delgado claimed that it was a voluntary group counseling session and again reprimanded Mescall for her insubordination. Mescall further alleges that she was once again berated for her union involvement and threatened with a denial of tenure. As a result of this confrontation, Mescall broke out in hives and went to the emergency room complaining of stress, anxiety, dizziness and fainting spells. On the recommendation of her doctor, Mescall did not return to work at P.S. 21.9 The District hired a guidance counselor to assume Mescall's duties.
As of February 18, 1997, Delgado's anti-union behavior was still being discussed at the Union Board meeting. P.S. 21 staff members indicated to Union representatives Edelstein and Rita Seligman on February 26, 1997 that they feared negative repercussions from Delgado if they contacted the Union. On March 5, 1997, Union President Tice met with Hardeman and Delgado to discuss the reports of Delgado's anti-union behavior.10 Although Delgado denied the allegations, Hardeman advised Tice that Delgado would be required to retract any such statements at the upcoming faculty meeting. Delgado did make a statement at the March 20, 1997 faculty meeting regarding the discouragement of union activity, however, the Union representatives were dissatisfied with its content.
Meanwhile, on or about February 26, 1997, Mescall wrote to Citarella requesting an accommodation in the form of an openended medical leave of absence to commence on March 3, 1997. On or about March 15, 1997, Citarella spoke with Mescall over the phone to discuss the status of her tenure review, as well as the details of her proposed leave of absence. This conversation was tape recorded by Mescall. Citarella informed Mescall that her absences during her probationary period had been excessive and, in light of the District's attendance policy, she would not be recommended for tenure.11 Mescall claims that Citarella proceeded to inform her that she would not be granted a medical leave of absence. Citarella does not recall telling Mescall that her requested accommodation would be denied, but rather believes he told her to file the necessary paperwork.
Thereafter, Mescall wrote to Citarella requesting that he reconsider her request for leave and advising that her doctors assured her she would be able to return to work by June 3, 1997. By letter dated April 7, 1997, Mescall was notified that the District had granted her medical leave from March 3, 1997 through June 3,...
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