Razzano v. Remsenburg-Speonk Union Free Sch. Dist., 11-CV-2920 (KAM)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtKIYO A. MATSUMOTO, United States District Judge
Docket Number11-CV-2920 (KAM)
Decision Date30 September 2020

and JOHN KERN in their official and individual capacities, Defendants.

11-CV-2920 (KAM)


September 30, 2020


KIYO A. MATSUMOTO, United States District Judge:

On June 17, 2011, plaintiff Janice Razzano commenced this action, bringing claims of disability discrimination and retaliation pursuant to the Americans with Disabilities Act of 1990 ("ADA") and the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. ("NYSHRL"), and alleging an Equal Protection violation pursuant to 42 U.S.C. § 1983. Plaintiff alleges discrimination and retaliation by the Remensburg-Speonk Union Free School District ("School District," "school," or "district"),1 School District superintendent and principal

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through 2010, Dr. Katherine Salomone, School District Board of Education ("Board") president Thomas Kerr, Board vice president Lisa Fox, and Board members Kevin Federico, Cecelia Spellman-Frey, and Joel Peterson. (Plaintiff's Complaint ("Compl.") at 1-2, ECF No. 1.) On October 7, 2011, plaintiff filed an amended complaint, raising the same claims but adding the current School District superintendent and principal, Ronald M. Masera, and Board member John Kern, as defendants. (Plaintiff's Amended Complaint ("Am. Compl.") at 1-2, ECF No. 2.)

On February 14, 2017, Judge Wexler dismissed plaintiff's claim sua sponte, "pursuant to the decision rendered by the New York State Appellate Department, plaintiff's failure to respond to requests of her counsel, and plaintiff's failure to prosecute." (Minute Entry of Judge Leonard Wexler, dated February 14, 2017.) Judge Wexler later clarified that the Appellate Division's decision precluded plaintiff's complaint "under the doctrines of res judicata and collateral estoppel." (Minute Entry of Judge Leonard Wexler, dated November 13, 2017.) Plaintiff appealed Judge Wexler's dismissal. (Notice of Appeal by Janice Razzano, ECF No. 27.) On appeal, the Second Circuit held that the sanction of dismissal for failure to prosecute was unsupported by the record, that dismissal on claim preclusion grounds was unsupported by the underlying claims raised at the state and administrative levels, and that dismissal on issue

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preclusion grounds was not supported by an administrative transcript demonstrating that the issues raised at the federal level were fully litigated in the administrative action. Razzano v. Remsenburg-Speonk Union Free Sch. Dist., 751 F. App'x 24 (2d Cir. 2018). Accordingly, the Second Circuit vacated the judgment and remanded for reconsideration of the issues on a more fully developed record. Id. at 28.

Presently before the court is defendants' motion for summary judgment. (Defendants' Memorandum of Law in Support of Motion for Summary Judgment ("Def. Mem."), ECF No. 58-3.) For the reasons provided below, the court grants defendants' motion for summary judgment.


The following timeline of events is taken from the parties' filings and statements pursuant to Local Civil Rule 56.1.2 The court has considered whether the parties have proffered admissible evidence in support of their positions and

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has viewed the facts in a light most favorable to the plaintiff, the nonmoving party.

I. Factual Background

The Board of Education of the Remsenburg-Speonk Union Free School District is a municipal corporation of the State of New York. (N.Y. Ed. Law § 1701); see C.K. v. Bd. of Educ. of the Westhampton Beach Sch. Dist., 185 F. Supp. 3d 317, 321 (E.D.N.Y. 2016). The School District consists of a single elementary school. (Def. Mem. at 2.)

In 2009, plaintiff complained of persistent coughing while at school, the cause of which was undetermined. (Def. 56.1 Stm't ¶ 5, ECF No. 58-2.) It is undisputed that the school conducted multiple environmental tests and found no evidence of an environmental cause for plaintiff's complaints.3 (Id. ¶ 6.)

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On November 14, 2009, plaintiff filed a complaint with the New York State Department of Labor alleging the presence of mold and asbestos at the school that plaintiff alleged led to her suffering a persistent cough while at work in the Remsenburg-Speonk School District. (Exh. P, NYS Dept. of Labor Compl. Determination ("Exh. P"), ECF No. 58-19.) On January 7, 2010, plaintiff filed a separate complaint against the School District with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination and retaliation in violation

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of Title VII of the Civil Rights Act of 1964 ("Title VII") and the ADA. (Exh. W, EEOC Charge ("Exh. W"), ECF No. 58-26.)4

In November 2010, plaintiff was diagnosed with "mild obstructive ventilatory defect with improvement after bronchodilators." (Def. 56.1 Stm't ¶ 7.) The school agreed to plaintiff's related accommodation requests, including allowing plaintiff to move offices and wear a respirator, providing plaintiff with additional recess periods, repainting plaintiff's office, and re-tiling plaintiff's office ceiling. (Id. ¶ 8.)

Between November 16, 2009 and February 9, 2010, an industrial hygienist inspected the school for the presence of mold and asbestos and found that plaintiff's complaint with the NYS Department of Labor could not be sustained. (Exh. Q, NYS Dept. of Labor Investigation Narrative ("Exh. Q") at 4, ECF No. 58-20.) The industrial hygienist found several unrelated Occupational Safety and Health Administration ("OSHA") violations. (Id.) On May 21, 2010, the NYS Department of Labor concluded that plaintiff's complaint could not be sustained. (See Exh. P.) Plaintiff requested reconsideration, and on July 15, 2010, the Department of Labor affirmed its original

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determination. (Exh. R, NYS Dept. of Labor Informal Conf. Report ("Exh. R") at 2, ECF No. 58-21.)

During the 2010-2011 school year, the School District's student population decreased to 169 students, from 193 students for the 2009-2010 school year. (Def. 56.1 Stm't ¶ 1.) This decrease in students coincided with a decrease in state funding to the School District, which required the School District to implement budget reductions. (Id. ¶ 2.) Pursuant to the decrease in student population and budget reductions, on June 14, 2010, the Board eliminated three school positions and reclassified two school positions from full to half-time. (Id. ¶ 3.) Plaintiff's position of school psychologist was among those reclassified from full to half-time. (Id.) Plaintiff would be responsible for counseling eight students for the 2010-11 school year: three of those students would participate in regular mandated counseling sessions as part of their Individualized Education Programs ("IEP"), while the other five would attend non-mandatory counseling. (Id. ¶ 4.) Plaintiff would prepare annual reports only for the three students with an IEP. (Id.)

On March 9, 2012, psychiatrist Dr. Randall Solomon made a preliminary finding that plaintiff was not mentally fit to continue working in the School District. (Id. ¶ 13; Exh. Y, Preliminary Psychiatric Report by Dr. Solomon ("Exh. Y") at 1,

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ECF No. 58-28.) On May 29, 2012, after reviewing the records of Dr. Weisler, plaintiff's psychologist, Dr. Solomon reiterated his initial conclusion that plaintiff was not mentally fit to continue working in the School District.5 (Def. 56.1 Stm't ¶ 13; Exh. Z, Second Psychiatric Report by Dr. Solomon ("Exh. Z") at 5, ECF No. 58-29.)

On June 14, 2012, the School District filed disciplinary charges against plaintiff for, among other things, failing to supervise students as the assigned lunch monitor on June 22, 2010, leaving confidential student records exposed in public printers on at least seven occasions during 2011, criticizing another teacher to students, and failing to cooperate with a psychiatric fitness evaluation. (Def. 56.1 Stm't ¶ 14.) The School District further charged that plaintiff was not mentally fit to continue working for the School District. (Id. ¶ 15; Exh. AA, Matter of Razzano vs. Remsenburg-Speonk Union Free Sch. Dist., Index No. 13-16057, Order in Article 75 Proceeding ("Exh. AA") at 3, ECF No. 58-30.) The arbitration decision of May 31, 2013 finding that plaintiff was

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not mentally fit was confirmed by the state supreme court in an Article 75 proceeding. (Def. 56.1 Stm't ¶ 15; Exh. AA at 4.)

II. Plaintiff's Article 78 State Court Proceeding Appealing Her Reduction to Half-Time

By administrative petitions dated May 19, 2010, July 13, 2010, and September 28, 2010, plaintiff petitioned the Commissioner of the New York State Department of Education pursuant to New York State Education Law § 310, challenging the School District's reclassification of her position from full to half-time and alleging the existence of "health and safety hazards [at the school], as well as discrimination, retaliation, harassment and hostile work environment." (Exh. X, NYS Dept. of Ed. Decision ("Exh. X") at 2, ECF No. 56-27; Exh. V, Pl. Pet. to the NYS Dept. of Ed. ("Exh. V") at 2, ECF No. 58-25.) On April 7, 2017, the Commissioner of Education dismissed plaintiff's petition, finding that plaintiff "failed to meet her burden of proving that [the District] reduced her position in bad faith." (Exh. X at 4-5.) The Commissioner of Education found that plaintiff "ha[d] not submitted any evidence" to establish her assertion that the school reduced her position from full to half-time in bad faith. (Id. ¶ 12.)

On October 8, 2010, plaintiff appealed the decision of the Commissioner of Education to the New York State Supreme Court of Suffolk County, pursuant to CPLR §§ 7801-7806 ("Article

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78"), alleging that the School District's decision to reclassify her position from full to half-time was undertaken in retaliation against her for complaining about the school's hazardous health conditions. ...

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