Ragusa v. Malverne Union Free School Dist.

• Decision Date: 30 September 2008
• Docket Number: No. 06 CV 4905(DRH)(AKT).,06 CV 4905(DRH)(AKT).
• Citation: 582 F.Supp.2d 326
• Parties: Biljana RAGUSA, Plaintiff, v. MALVERNE UNION FREE SCHOOL DISTRICT, Malverne Union Free School District Board of Education, and Mary Ellen Freeley as Superintendent of Schools, Defendants.
• Court: U.S. District Court — Eastern District of New York

582 F.Supp.2d 326

Biljana RAGUSA, Plaintiff, v.MALVERNE UNION FREE SCHOOL DISTRICT, Malverne Union Free School District Board of Education, and Mary Ellen Freeley as Superintendent of Schools, Defendants.

No. 06 CV 4905(DRH)(AKT).

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

September 30, 2008.

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Law Offices of Louis D. Stober, Jr., LLC, by: Sheila S. Hatami, Esq., Garden City, NY, for Plaintiff.

Miranda Sokoloff Sambursky Slone Verveniotis, LLP, by: Brian S. Sokoloff, Esq., Jennifer E. Sherven, Esq., Mineola, NY, for Defendants.

MEMORANDUM & ORDER

HURLEY, Senior District Judge.

INTRODUCTION

Plaintiff("Plaintiff')Biljana Ragusa filed the present action against defendantsMalverne Union Free School District(the "District"), Malverne Union Free School District Board of Education(the "Board"), and Mary Ellen Freeley("Freeley")(collectively, "Defendants"), alleging, inter alia, that Defendants discriminated against her based upon her disability, gender, age, and national origin, and retaliated against her for opposing discriminatory practices.Defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure("Rule") 56.For the reasons that follow, Defendants' motion is granted.

BACKGROUND

The material facts, drawn from the Complaint and the parties' Local 56.1 Statements, are undisputed unless otherwise noted.

Plaintiff was born on April 26, 1955, and is currently 53 years old.Plaintiff was born in Bosnia and Herzegovina.

I.School Year 2002-2003; Plaintiff is Hired

Plaintiff began working for the District in September 2002 as a math teacher for a probationary term of two years.Plaintiff is licensed to teach mathematics from grades 7 through 12.The District middle school and the high school are across the street from each other.Within the high school, a teacher can be assigned to more than one classroom.During the school year 2002-2003, Plaintiff taught five periods a day, in two different classrooms, in the high school.

A.Plaintiff's January 2003 Surgery

In January of 2003, Plaintiff underwent surgery for removal of an accoustic neuroma, or benign tumor, in her brain.Although the surgery was viewed as a success, it left Plaintiff with many side effects.According to Plaintiff's sworn declaration, after the surgery, she looked very different.(Pl.'s Decl., dated Jan. 4, 2008("Pl.'s Decl.") at ¶ 7.)She could not blink her right eye, she lost hearing in her left ear, she had difficulties with balance and walking in a straight line, and she couldn't enunciate properly because of paralysis on the right side of her face.(Id.)"Doctors" installed a gold plate in her eyelid to help her blink and she used, and still uses, eye drops to keep her eye lubricated because her tear ducts are damaged.(Id.¶ 8.)In April 2003, she had a bone-anchored hearing aid surgically implanted in her skull to help her hearing on the left side.(Id.¶ 12.)

Although Plaintiff used up all of her sick leave as a result of the surgery, the District allowed her to "borrow" unearned sick leave from school year 2003-2004.Nineteen days following the surgery, Plaintiff returned to school in mid-February 2003.In a letter dated February 11, 2003, Plaintiff's doctor wrote that "[Plaintiff] is now medically cleared to return to work [as of February 14, 2003]."(Compl.Ex.F.)There is no indication by Plaintiff's doctor that any limitations were placed on Plaintiff's abilities.

B.Plaintiff's February 2003 Return to School

When Plaintiff returned to school, she taught the same classes and students that she taught prior to her surgery.From the time Plaintiff returned to work until the end of the school year, she missed at most one day of work.

At her deposition, Plaintiff testified that her teaching abilities changed after her surgery.Specifically, she had to spend more time preparing her lessons, had problems moving around the classroom, getting from one classroom to another and getting up stairs, and had to lean on the board while writing on it.(Pl.'s Dep., dated July 6, 2007("Pl.'s Dep.")at 129.)In addition, following her surgery, Plaintiff, who speaks English with a foreign accent, feared that it was more difficult for people to understand her because the surgery affected her pronunciation of certain words.(Id. at 130.)She also testified that it was more difficult for her to hear some of the things that were going on in the classroom while she was teaching.(Id. at 132.)She stated that she had to use eye drops three to four times every hour to moisturize her eye and that the drops she used blurred her vision.(Id. at 133.)She developed eye infections that necessitated wearing a patch covering her left eye.(Id. at 133-34.)Both the blurry vision and infections impacted her ability to see what was going on in the classroom.(Id. at 135.)Sometime in 2004 or 2005, she began using a new eye medication which does not cause her to have blurred vision.(Id. at 133-34.)While recovering from the surgery, she used a walker but did not use a walker or cane once she returned to work.(Id. at 136.)Finally, she experienced severe headaches and dizziness after the surgery, which worsened with time.(Id. at 258-61.)According to Plaintiff, these headaches interfered with her ability to teach because they adversely affected plaintiffs ability to function.(Id. at 259.)

Rose Linda Ricca("Ricca"), the District Chairperson for Mathematics, never had any trouble understanding Plaintiff nor did she ever receive any complaints from parents about student having trouble understanding Plaintiff.

C.Plaintiff's Alleged Verbal Requests for Accommodation

Immediately following her surgery, Plaintiff did not put into writing any requests about class assignments.¹(Id. at 80.)However, Plaintiff maintains that she made verbal requests to Ricca, including asking for a whiteboard, as opposed to a chalkboard, to avoid chalk dust which irritates and infects her eye.She also allegedly requested to change her schedule so she didn't have to move from classroom to classroom.According to Plaintiff, Ricca told her that she couldn't change her schedule in the middle of the year but would try to change it for the next year.In her deposition testimony, Plaintiff testified that although she"preferred to stay on the same floor" throughout the day (Pl.'s Dep.at 83-84), she conceded that none of her doctors told her in writing to "stay off the steps."(Id. at 80.)

As part of Plaintiffs job duties, she had hall duty where she walked around the halls.Plaintiff was able to walk and perform her hall duty.(Id. at 96.)

D.Classroom Observations

Non-tenured teachers receive six classroom observations per school year.Ricca performs four of them and either the principal or assistant principal performs the others.An observation lasts the entire class period.During the 2002-2003 school year, Plaintiff's evaluators recommended that Plaintiff change activities within the lessons, break the students into small groups, spread questioning throughout the class and discipline students for being late.Although she received a "Meets District Standards" in most categories, the highest grade available, her evaluations were a mix of positive and negative comments.

II.School Year 2003-2004

A.Plaintiff's Alleged Requests for Accommodation

Plaintiff contends that before the start of the 2003-2004 school year, she made verbal requests to limit the amount she would have to move between rooms and that all of her classrooms contain a white board or an overhead projector.She asserts that the District ignored her former request and that her schedule for that year consisted of classes on two different floors and that she fell twice because of her balance problems.

B.The Hiring of a Substitute to Assist Plaintiff

During the 2003-2004 school year, the District hired a retired math teacher as a permanent substitute in mathematics, Gail Schindelheim.On days when there were no teachers out, she was assigned to Plaintiffs classes in order to assist and support Plaintiff and her students.According to the District, Ms. Schindelheim reported that students were having difficulty understanding Plaintiff because she was not breaking the material down and was skipping over some of the foundations in mathematics.Plaintiff disputes this allegation, contending that Ms. Schindelheim sometimes read People magazine in the classroom and never mentioned to Plaintiff that the students were having any problems understanding her teaching methods.

C.Change in Plaintiff's Schedule

In January 2004, the District changed Plaintiffs schedule and took some students from Plaintiffs Math A class and formed another class, allegedly to make Plaintiffs class load lighter.Plaintiff contends that the change was made to accommodate a new younger male teacher and that her load actually got heavier.She also alleges that she requested to take over the classes of a teacher who had left but that her request was denied; instead, a younger male teacher with little teaching experience got the position.Plaintiff does not identify these male teachers.

D.Extension of Plaintiff's Probationary Period

In the Spring of 2004, toward the end of Plaintiffs two-year probationary term Plaintiff had a meeting with Ricca and others.The District offered Plaintiff an extension of her probationary term in lieu of termination.According to the District, although Plaintiff was not implementing her supervisors' recommendations regarding teaching, they hoped she would succeed with a third year of probation.According to Plaintiff, no one at the meeting said anything about her teaching abilities and instead, explained that a new superintendent wanted to be in charge of the tenure decisions so her tenure decision had been...