Zambrano–Lamhaouhi v. N.Y.C. Bd. of Educ.

• Citation: 866 F.Supp.2d 147
• Decision Date: 21 November 2011
• Docket Number: No. 08–CV–3140 (NGG)(RER).,08–CV–3140 (NGG)(RER).
• Parties: Miriam ZAMBRANO–LAMHAOUHI, Plaintiff, v. NEW YORK CITY BOARD OF EDUCATION, Howard Kwait, individually and in his official capacity, Winifred Radigan, individually and in her official capacity, Elizabeth McOllough, individually and in her official capacity, Nancy Esposito, individually and in her official capacity, Lorraine Hanes, individually and in her official capacity, and Mercedes Qualls, individually and in her official capacity, Defendants.
• Court: U.S. District Court — Eastern District of New York

866 F.Supp.2d 147

Miriam ZAMBRANO–LAMHAOUHI, Plaintiff,

v.NEW YORK CITY BOARD OF EDUCATION, Howard Kwait, individually and in his official capacity, Winifred Radigan, individually and in her official capacity, Elizabeth McOllough, individually and in her official capacity, Nancy Esposito, individually and in her official capacity, Lorraine Hanes, individually and in her official capacity, and Mercedes Qualls, individually and in her official capacity, Defendants.

No. 08–CV–3140 (NGG)(RER).

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

Nov. 21, 2011.

Steven A. Morelli, Lorraine M. Ferrigno, The Law Offices of Steven A. Morelli, P.C., Garden City, NY, Anthony Christopher Giordano, Law Office of Anthony C. Giordano, P.C., Oceanside, NY, Elaine R. Sammon, The Law Office of Steven A. Morelli, P.C., Carle Place, NY, for Plaintiff.

Christopher Aaron Seacord, Ivan A. Mendez, Jr., New York City Law Department, New York, NY, for Defendants.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

Plaintiff Miriam Zambrano–Lamhaoui (“Plaintiff”) brought suit against the Defendants, alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1983; and state and city anti-discrimination laws. (Am. Compl. (Docket Entry # 2).) Defendants move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. (Docket Entry # 40.) For the reasons stated below, Defendants' motion is granted in part and denied in part.

I. Summary Judgment Standard

A motion for summary judgment must be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In determining whether a genuine issue of material fact exists, the court may not “make credibility determinations or weigh the evidence,” but “must draw all reasonable inferences in favor of the nonmoving party.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Further, the burden of showing the absence of any genuine dispute as to a material fact rests on the movant. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

A fact is material if its existence or non-existence “might affect the outcome of the suit under the governing law,” and an issue of fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56 “mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In such a situation, “there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323, 106 S.Ct. 2548. A grant of summary judgment is proper “[w]hen no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight.” Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir.1994).

The party opposing summary judgment is not entitled to rely on unsworn allegations in the pleading, but must instead “show that there is admissible evidence sufficient to support a finding in her favor on the issue that is the basis for the motion.” Fitzgerald v. Henderson, 251 F.3d 345, 360–61 (2d Cir.2001). Therefore, the court will not take into account the unsworn allegations in Plaintiff's Amended Complaint, but will take into account Plaintiff's sworn charge to the Equal Employment Opportunity Commission (“EEOC”) (Defs.' Aff. (Docket Entry # 43) Ex. LL). See Fitzgerald, 251 F.3d at 361. Even where a statement is sworn, the information therein should not be credited if it constitutes hearsay “that would not be admissible at trial if testified to by the affiant.” Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir.2004). “Nor is a genuine issue created merely by the presentation of assertions that are conclusory.” Id.

Plaintiff's opposition to Defendants' motion for summary judgment is based largely on her own deposition testimony. The Second Circuit has held that, “in certain extraordinary cases,” where a plaintiff's opposition to summary judgment is based entirely on the plaintiff's own testimony, and where that testimony is so inconsistent and contradictory that no reasonable jury could believe it, a district court may decline to credit the plaintiff's testimony and grant summary judgment. See Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 105–06 (2d Cir.2011) (citing Jeffreys v. City of New York, 426 F.3d 549 (2d Cir.2005)). The Second Circuit clarified, however, that this holding does “not suggest that district courts should routinely engage in searching, skeptical analyses of parties' testimony in opposition to summary judgment.” Id. at 106. In the instant case, Plaintiff's testimony is not so inconsistent or contradictory that no reasonable jury could believe it. Therefore, the court will credit it, except where it is conclusory or based on hearsay.

II. BACKGROUNDA. Events Prior to Plaintiffs Maternity Leave

At the time of the events in question, Plaintiff had been employed by the New York City Board of Education (“BOE”) since February 1996. (Defs.' 56.1 Statement (“DS”) (Docket Entry # 41) ¶¶ 2–3; Pl.'s 56.1 Statement (“PS”) (Docket Entry # 45) ¶¶ 2–3.) In September 2001, Plaintiff received tenure as a teacher. (DS ¶ 5; PS ¶ 5.) In January 2002, she was appointed for a probationary term as an assistant principal of foreign languages at John Bowne High School (“John Bowne”). (DS ¶ 7; PS ¶ 7.) Plaintiff was rated satisfactory by her supervisor, Frank McQuail, who was then the principal of John Bowne. (Defs.' Aff. Ex. C at 13.)

In October 2003, Plaintiff was injured at work, and subsequently took a leave of absence of approximately three months. (DS ¶¶ 19–20; PS ¶¶ 19–20; Pl.'s Aff. (Docket Entry # 46) Ex. F.) She was ultimately awarded paid leave for only a portion of that period. (DS ¶¶ 21–22; PS ¶¶ 21–23; Pl.'s Aff. Ex. G.)

Defendant Howard Kwait (“Kwait”) became the principal of John Bowne in June 2006, at which time Plaintiff was pregnant. (DS ¶¶ 8, 24; PS ¶¶ 8, 24, 26.) At a meeting in which he introduced himself to staff, Kwait stated, in sum or substance, that he expected staff to “do [their] job to the fullest” and that he did not care if they “ha[d] families or kids to attend to or pick up.” (PS ¶ 24; Pl.'s Aff. Ex. B at 6.)

Kwait assigned Plaintiff to help hire a Spanish teacher, in the summer of 2006, even though her contract did not permit her to work over the summer. (DS ¶ 26; PS ¶ 26; Pl.'s Aff. Ex. B at 7; Defs.' Aff. Ex. LL ¶ 4.) In August 2006, Plaintiff informed Kwait that she expected to give birth in early October, and would then be going on maternity leave. (DS ¶ 28; PS ¶ 28.) When the 2006 school year started, Plaintiff requested that she be “excused from hallway duty and hall patrol and cafeteria duty due to her pregnancy.” (PS ¶ 28.) Kwait denied this request. ( Id.)

Kwait proceeded to subject Plaintiff to a “campaign” of “continuous” “harassment,” by “stand[ing] outside her class,” giving her dirty looks if she had to go to the bathroom during meetings, and following her down the hall and “yell[ing]” at her if he saw her going to the bathroom during one of her classes. (Defs.' Aff. Ex. C at 27–28, 30, 32; Defs.' Aff. Ex. LL ¶ 6.) In September 2006, Kwait observed a student with her head down on her desk in Plaintiff's classroom; he entered the class and roused the student, thereby “taking away [Plaintiff's] authority” and causing her students to think she was “in trouble.” (DS ¶ 29; PS ¶ 29; Defs.' Aff. Ex. C at 27.) In general, Kwait indicated his disdain for Plaintiff through “his body language” and “the way he talk[ed]” to her; he was “condescending, like [she was] a nobody because [she was] pregnant.” (Defs.' Aff. Ex. C at 30, 33.)

During this period, Kwait denied Plaintiff the opportunity to participate in the third course of a three-year professional development program, the first two years of which Plaintiff had completed. (PS ¶ 29; Defs.' Aff. Ex. C at 28–30, 35 & Ex. LL ¶ 5.) Kwait cited the imminence of Plaintiff's maternity leave and said, “Well, you're pregnant, so it doesn't matter if you get to the training or not.” (Defs.' Aff. Ex. C at 28–29.) In fact, Plaintiff would have only missed one of the monthly course meetings, for which there were, in any event, makeup sessions. ( Id. 29, 38.) Defendant Winifred Radigan (“Radigan”), a BOE superintendent and Kwait's supervisor (DS ¶¶ 10–11), was scheduled to teach the course. (Defs.' Aff. Ex. C at 35.)

On October 3, 2006, Plaintiff informed Kwait that she planned to work until her October 10, 2006 due date. (DS ¶ 30; PS ¶ 30.) Kwait told her that, if she planned to return to work less than six weeks after giving birth, school regulations required that she provide a doctor's note stating she was fit for duty. (DS ¶ 31; PS ¶ 31; Defs.' Aff. Ex. N.) Plaintiff worked until October 6, 2006, the last school day before her due date. (DS ¶ 33; PS ¶ 33.) On Plaintiff's last day at work, she requested paperwork from school administrators regarding her maternity leave. (DS ¶¶ 32, 34; PS ¶¶ 32, 34.) Defendants claim that all such paperwork was provided, which Plaintiff denies. (DS ¶ 34; PS ¶ 34.)

Plaintiff testified in her deposition that she thought Kwait and Radigan discriminated against her on the basis of her pregnancy, adding that her union representative told her that Radigan “targets young mothers with babies.” (Defs.' Aff. Ex. C at 33–35.)

B. ...