Berger–Rothberg v. City of New York

274 Ed. Law Rep. 858

803 F.Supp.2d 155

Eva BERGER–ROTHBERG, Plaintiff,

v.CITY OF NEW YORK, and New York City Department of Education, Defendants.

No. 07–CV–1878 (RRM)(SMG).

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

March 23, 2011.

David M. Lira, Garden City, NY, for Plaintiff.

Cindy E. Switzer, Ivan A Mendez, Jr., Lawrence J. Profeta, City of New York Law Department, New York, NY, for Defendants.

MEMORANDUM & ORDER

MAUSKOPF, District Judge.

Plaintiff Eva Berger–Rothberg (“Plaintiff”) brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), the New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq. (“NYSHRL”), the New York City Human Rights Law, N.Y.C. Admin. Code § 8–107 et seq. (“NYCHRL”), and New York state common law, asserting claims for hostile work environment, retaliation, and negligence against defendants the City of New York and the New York City Department of Education (“DOE”) (together, “Defendants”). On April 1, 2010, the Defendants moved for summary judgment on all claims. For the reasons set forth below, Defendants' motion is GRANTED in part and DENIED in part.

BACKGROUND ¹

Plaintiff self-identifies as a white, Jewish woman. (Defs.' 56.1 Stmt. ¶ 1, Pl.'s 56.1 Cntrstmt. ¶ 1.) In 1987, she was hired by the DOE as a special education teacher. (Defs.' 56.1 Stmt. ¶ 2.) Plaintiff was employed by the DOE as a special education teacher for approximately eighteen years. ( Id.) Before applying for a position with the DOE, Plaintiff had received substantial training in special education, including instructions on how to “deal with,” “cope with,” and “relax” “problem children.” ( Id. ¶ 3.)

On October 11, 2005, Plaintiff transferred to Middle School 226 in Queens, New York (“MS 226”). ( Id. ¶ 8.) During the 2005–2006 school year, MS 226 was split into four academies, each located on a different floor at MS 226, and each with its own Assistant Principal (“A.P.”). ( Id. ¶ 9.) A.P. James Buterakos was responsible for the Renaissance Academy, located on the fourth floor at MS 226. ( Id. ¶ 10.) A.P. Nancy O'Dwyer was responsible for the Special Education Department at MS 226. ( Id. ¶ 11.)

Plaintiff was assigned to a seventh grade Modified Instructional Services 2 (“MIS 2”) class in room 419, located on the fourth floor of MS 226, and comprised mostly of severely emotionally disturbed children. ( Id. ¶ 13; Pl.'s 56.1 Cntrstmt. ¶ 13.) Plaintiff claims that Sonia Nieves, the Principal at MS 226, warned her that she was assigned to a “rough class.” (Berger–Rothberg Dep. at 90–91.) Plaintiff estimates that, although she was responsible for ten students in total, an average of seven students was present in her classroom at any given time. (Defs.' 56.1 Stmt. ¶ 13; Pl.'s 56.1 Cntrstmt. ¶ 15.) Two paraprofessionals were also assigned to Plaintiff's classroom: Cecelia Donovan was responsible for one student in particular, while Chander Anand attended to the class as a whole. (Pl.'s 56.1 Cntrstmt. ¶ 13.) Another special education teacher, Barbara Willis–Elliot, was also assigned to Plaintiff's class for two or three periods a day to assist with classroom management. ( Id.) Finally, a School Safety Agent, Officer Lowe, was assigned to the fourth floor of MS 226. (Defs.' 56.1 Stmt. ¶ 14.)

Willis–Elliot, who had sixteen years of experience at the time she worked with Plaintiff, testified that Plaintiff often argued with her students. ( Id. ¶ 23.) Willis–Elliot suggested that Plaintiff refrain from “fuel[ing] the fire” by “demean[ing] the children” or giving them reason to argue with her. ( Id. ¶¶ 23, 29.) For example, Plaintiff would allegedly respond to verbal provocation by her students with inappropriate remarks. ( Id. ¶ 24.) Willis–Elliot offered a characteristic example of the disorderly atmosphere in Plaintiff's classroom:

[Students] would say ‘White B[itch]’ to her, and then she would in turn, turn around and say something derogatory to them. Then it becomes a one-on-one verbal confrontation between her and the student, and then the other kids start, because nobody is paying attention to them, except for maybe the paraprofessional in the class and myself. Then the other children get off task, and they would all start joining in, and it would become a free-for-all.

( Id. ¶ 25.) Willis–Elliot testified that when she witnessed this type of scene, she would place herself between Plaintiff and the student, each of whom “would back off.” ( Id. ¶ 26.)

Willis–Elliot and the two paraprofessionals assigned to Plaintiff's class attempted to develop strategies for Plaintiff to use to improve discipline in her classroom, including rewards, seating reassignments, calling parents, and arranging parent conferences. ( Id. ¶ 27.) Plaintiff testified that she implemented many of these strategies, but their effectiveness diminished over time. (Pl.'s 56.1 Cntrstmt. ¶ 27.)

Donovan, a paraprofessional, also testified that Plaintiff would “put the kids down”:

[Plaintiff] would tell them that they would never amount to nothing [sic] and that the only thing they be doing is flipping burgers and they could flip her one, and then she would brag about what she had, like a big house. I make a six figure number, I got this and I got that and I got my degree and, you know, having the kids thinking that they can't get theirs, so the kids used to tell her, you don't know what I'm going to be when I grow up ... they got angry and then after a while, they start cursing her.

(Defs.' 56.1 Stmt. ¶ 28.)

The record indicates that Plaintiff's class was extremely disruptive, threatening, and often dangerous. For example, Plaintiff testified that the students would throw books in the classroom, often at Plaintiff. (Berger–Rothberg 50–H Hearing Tr. at 32; Berger–Rothberg Dep. at 150; Anand Dep. at 23–24, 41–42.) Students allegedly began throwing books on a daily basis on October 17, 2005, six days after she arrived at MS 226. (Berger–Rothberg 50–H Hearing Tr. at 32.) Although A.P. Buterakos eventually removed the books from Plaintiff's class on February 8, 2006, almost four months after students began throwing them, the parties dispute when Buterakos received notice of the book throwing. ( Id. ¶ 31; Pl.'s 56.1 Cntrstmt. ¶ 31.) Plaintiff testified that S.C.,² one of her students, threatened her numerous times. (Berger–Rothberg 50–H Hearing Tr. at 24.) Willis–Elliot testified that the students would “get up in her face, make close contact ... to intimidate her ... and yell at her, yell racial slurs.” (Willis–Elliot Dep. at 23–24.)

Plaintiff testified that virtually from the start, her students called her “Jew bastard” and threw books at her, causing her to feel that she was in danger. (Berger–Rothberg Dep. at 87.) Anand, one of the class paraprofessionals, also said she felt afraid when the students would throw books or push down desks and chairs in the classroom. (Anand Dep. at 26.) Both Anand and Donovan testified that they reported the book throwing to A.P. Buterakos. ( Id. at 26–27; Donovan Dep. at 42.) On a regular basis, Plaintiff's students said to her: “fuck you, Jew,” “white Jewish bastard,” “white bitch,” “bitch,” “fuck you,” “I will f[uck] you up,” “you bitch,” “Jew bastard,” “fucking Jew,” “white Jew,” “Hitler did not kill enough Jews,” and “Jews don't deserve to live.” (Berger–Rothberg Dep. at 118–24; Willis–Elliot Dep. at 21–23; Ex. 18.) On December 1, 2005, one of Plaintiff's students, D.P., sprayed her in the eye with air freshener and then hit her with the can. (Pl.'s Aff. in Supp. of Mot. for Summ. Judg., Ex. 24.) Plaintiff testified that in January 2006, S.C. and N.B. wrote “Bitch” in red marker and vandalized her classroom. (Berger–Rothberg Dep. at 135.) Plaintiff testified that “Mr. Buterakos came in and saw the room all tore up.” ( Id.)

A. December 23, 2005 Incident

On December 23, 2005, Plaintiff received highly inappropriate, sexually suggestive advances from two of her students. (Defs.' 56.1 Stmt. ¶ 43.) One student, B.E., surprised Plaintiff and rubbed his penis against her body. ( Id.) Another student, S.C., either pressed his lips against, or stuck his tongue into, Plaintiff's ear and said something along the lines of “Do you want to be my friend?” or “Do you want to have a good time?” ( Id.; Pl.'s 56.1 Cntrstmt. ¶ 43.) ³ Plaintiff reported the incident to the Principal Nieves, who immediately called the police. (Defs.' 56.1 Stmt. ¶ 47; Pl.'s 56.1 Cntrstmt. ¶¶ 43, 47.) Within an hour, the students, their parents, Plaintiff, and Principal Nieves were gathered in the principal's office to discuss the incident. (Defs.' 56.1 Stmt. ¶ 47.) Principal Nieves testified that when she presented Plaintiff with the option of removing B.E. and S.C. from her classroom permanently, Plaintiff's “words pretty much were [that] she didn't want her sweethearts, her babies removed from her class.” ( Id. ¶ 49.)

Plaintiff claims that she was frightened, overwhelmed, and in shock during her meeting with Principal Nieves. (Berger–Rothberg Dep. at 114–15.) Plaintiff testified that “all Ms. Nieves kept saying is, do you want to call the police, do you want to call the police.” ( Id. at 115.) Plaintiff testified that although she wanted the students arrested, she was confused, and focused on the fact that she had a flight to catch that night. ( Id. ¶ 51.) Moreover, she worried that Principal Nieves “wanted [her] out of the school,” and would consider her a troublemaker if she pressed charges. ( Id.) Plaintiff testified that she made the decision not to press charges on the advice of Ed Mergenthaler, who told her not to “cause more of a havoc [sic].” (Berger–Rothberg Dep. at 115.) Thus, Plaintiff did not press charges and both students received a five-day, in-school suspension, which Principal Nieves believed was the maximum penalty permitted under the DOE's Discipline Code. (Defs.' 56.1 Stmt. ¶¶ 48, 50.)

On January 13, 2006, A.P. O'Dwyer performed a formal classroom...