Tomici v. N.Y.C. Dep't of Educ.
| Decision Date | 19 December 2012 |
| Docket Number | No. 11–CV–2173.,11–CV–2173. |
| Citation | 910 F.Supp.2d 472 |
| Parties | Loredana TOMICI, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
OPINION TEXT STARTS HERE
Locksley O. Wade, Law Office of Locksley O. Wade, Esq., New York, NY, for Plaintiff.
Isaac Klepfish, of Counsel, New York City Law Department, New York, NY, for Defendant.
I. Introduction
Loredana Tomici sues her former employer, the New York City Department of Education (“DOE”). She was discharged as a New York City probationary public school teacher while on medical leave after a miscarriage.
The Family Medical Leave Act (“FMLA”) prohibits interference with, and retaliation for, taking medical leave. State and city anti-discrimination laws outlaw adverse employment actions for reasons related to pregnancy.
Defendant moves for summary judgment and dismissal. Tomici cross-moves for summary judgment on her FMLA claim.
Failure to file a timely notice bars claims under state and city law. Evidence will not support her remaining FMLA claims.
Defendant's motion is granted. Plaintiff's motion is denied. The case is dismissed.
II. Facts
The following statement of facts draws all reasonable inferences in favor of the plaintiff. See Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010).
In August 2007, plaintiff began working as a probationary English language arts teacher at DOE's Ridgewood Intermediate School 93 (“I.S. 93”). Decl. of Isaac Klepfish in Supp. of Def.'s Mot. for Summ. J. (“Klepfish Decl.”) Ex. G (Annual Professional Performance Review and Report, dated June 25, 2008), CM/ECF No. 27–7. Her period of probation was three years. SeeN.Y. Educ. L. § 2573(1). During a probationary period, a teacher lacks tenure and is essentially an at-will employee who the board of education can fire upon the recommendation of the superintendent of schools, so long as the decision is not arbitrary or capricious. See Frasier v. Bd. of Educ. of City Sch. Dist. of City of New York, 71 N.Y.2d 763, 765, 530 N.Y.S.2d 79, 525 N.E.2d 725 (1988) .
The principal of IS. 93 was Edward Santos. Def. 56.1 ¶ 2. Also providing supervision at I.S. 93 were three assistant principals: Frederick Wright, Catherine Fratangelo, and Theresa Rosato–Lopes. Id. at ¶¶ 3–5.
Tomici was rated “Satisfactory” for her first year and a half as a probationary teacher. See Klepfish Decl. Ex. II (Chancellor's Committee Report, dated May 18, 2009), CM/ECF No. 27–35; Ex. G (Annual Professional Performance Review and Report, dated June 25, 2008), CM/ECF No. 27–7. During this period Rosato–Lopes observed plaintiff's teaching on at least two occasions. In October of 2007, Tomici's third month on the job, Rosato–Lopes rated Tomici's lesson as satisfactory overall and remarked in her Observation Report that “[i]t is a pleasure to work with you in your first year as a teacher.” Klepfish Decl. Ex. E. (Observation Report, dated Nov. 1, 2007), CM/ECF No. 27–5. She also thanked Tomici “for the dedication you show the students of I.S. 93.” Id. Rosato–Lopes's impression of Tomici did not change during the initial months of Tomici's second year on the job. An Observation Report authored by Rosato–Lopes in September 2008 thanked Tomici for “working to develop the skills and strategy to meet the needs of your [English Language Learner] students.” Klepfish Decl. Ex. H (Observation Report, dated Sept. 5, 2008), CM/ECF No. 27–8.
Plaintiff suffered a miscarriage the last week of December 2008. Decl. of the Attorney for Pl. in Supp. of Opp. to Mot. for Summ. J. and Cross–Mot. for Summ. J. (“Pl. Decl.”) Ex. 1 (“Tomici Dep.”), CM/ECF No. 38–1, at 71. She had not previously been visibly pregnant. Tomici Dep. 60. As treatment following her miscarriage, a dilation and curettage procedure was performed on January 5th and 6th of 2009. Klepfish Decl. Ex. I (Medical Records, dated January 5–6, 2009), CM/ECF No. 27–10. The procedure caused plaintiff to miss two days of school. Tomici Dep. 26, 71. For her absence, she submitted a doctor's note, which did not explain the circumstances of her absence. Id.
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