Cherkaoui v. City of Quincy

213 F.Supp.3d 264

Debra CHERKAOUI, Plaintiff,

v.CITY OF QUINCY, Defendant.

Civil No. 14-CV-10571-LTS

United States District Court, D. Massachusetts.

Signed October 03, 2016

Marisa A. Campagna, The Law Office of Marisa Campagna, Boston, MA, for Plaintiff.

Sarah A. Catignani, Brandon H. Moss, Murphy, Hesse, Toomey & Lehane, LLP, Quincy, MA, for Defendant.

ORDER ON REPORT AND RECOMMENDATION (DOC. NO. 74)

SOROKIN, J.

Defendant moved for summary judgment on all claims asserted by Plaintiff. Magistrate Judge Cabell issued a lengthy Report and Recommendation in which he recommended that the Court grant Defendant's Motion. Defendant objects stating that Judge Cabell's Report and Recommendation erroneously recited three facts, none of which Defendant says are material. Plaintiff objects complaining that the Report and Recommendation inaccurately recites the facts and incorrectly analyzes the issues resulting in, Plaintiff says, the wrong recommendation.

The issue before the Court is whether to grant Defendant's Motion for Summary Judgment. The Court has conducted a de novo review of the Motion. The Motion is ALLOWED and the Report and Recommendation is ADOPTED for the reasons stated by Judge Cabell.¹

SO ORDERED.

REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Dkt. No. 60)

CABELL, U.S.M.J.:

Debra Cherkaoui ("the plaintiff"), worked for several years as a public school teacher for the City of Quincy ("the defendant"). She has brought several claims alleging that she was discriminated and retaliated against, and ultimately forced to quit, because she is Muslim and suffers from Attention Deficit Hyperactivity Disorder ("ADHD"). The defendant has moved for summary judgment on all claims. (Dkt. No. 60). For the reasons discussed below, I recommend that the motion for summary judgment be allowed.

I. RELEVANT FACTUAL BACKGROUND¹

In or around 1998, the defendant hired the plaintiff as a public school teacher. (Statement of Material Facts in Support of Defendant's Motion for Summary Judgment ("Quincy SOF"), at ¶ 8). (Dkt. No. 62). Except for a relatively brief interruption when her child was born, the plaintiff worked part-time at the Atlantic Middle School ("Atlantic") between 1998 and 2009. The plaintiff taught Spanish and English Language Learners ("ELL"), and regularly received positive performance evaluations. (Quincy SOF, at ¶¶ 9-10).

The plaintiff is Muslim. In April of 2009 she began to wear a headscarf to work for religious reasons. (Quincy SOF, at ¶ 11; Cherkaoui's Statement of Disputed Facts ("Plaintiff's SOF"), at ¶ 10).² The plaintiff alleges that after she began wearing the headscarf the defendant began to discriminate against her by treating her discourteously, treating her differently than other similarly situated teachers, giving her inappropriate or impractical assignments, and failing to respond satisfactorily when she complained. The plaintiff also suffers from ADHD and alleges that the city failed to appropriately respond to her requests for some accommodation. More particularly, the plaintiff alleges as follows.

1. The 2009 – 2010 School Year

a. Split Assignment, Inadequate Notice of Assignment, and Lack of a Classroom

In the spring of 2009 the plaintiff was teaching part time. She requested a full-time teaching assignment for the 2009-2010 school year and the defendant granted her request. (Quincy SOF, at ¶ 13). To effect the transition, the plaintiff was required to split her time between two schools, Atlantic and the Sterling Middle School ("Sterling"). (Quincy SOF, at ¶ 14). This was the first time the plaintiff ever had to teach classes at two different schools. (Plaintiff's SOF, at ¶ 11). According to the plaintiff, split assignments are disfavored and uncommon. (Plaintiff's SOF, at ¶¶ 12-13).

When the plaintiff first received her assignment for the 2009-2010 school year, she was told that she would be teaching three ELL classes at Atlantic and two at Sterling. A few days before the first day of school, however, she was told that instead of three ELL classes at Atlantic, she would be teaching two ELL classes and one Spanish class there. (Plaintiff's SOF, at ¶ 14). This last minute change of assignment was disadvantageous, and it was "extraordinary" for teachers to not be given their school assignments the previous June. (Plaintiff's SOF, at ¶ 15). Despite the change in her assignment, the plaintiff began teaching her split assignment for that year.

The plaintiff was not assigned to a classroom at Sterling. Instead, the school Principal, Christine Barrett ("Barrett") offered her a section of the library called the media center. (Plaintiff's SOF, at ¶¶ 18-19). The media center did not have a teacher's desk and there was nowhere for the plaintiff to store her materials. (Plaintiff's SOF, at ¶ 19). Principal Barrett subsequently offered the plaintiff a classroom that was used by the special education teacher. According to the plaintiff, no other teacher had ever been assigned to teach in that room and no other teachers were required to teach anywhere other than a regular classroom. (Plaintiff's SOF, at ¶¶ 20-21). The plaintiff completed the 2009-2010 school year splitting her time between Atlantic and Sterling.

b. Disciplined for being Tardy

The plaintiff was not given enough time to get from Atlantic to Sterling and consequently was sanctioned for being tardy. The plaintiff received oral reprimands, three written warnings, and ultimately a suspension. (Quincy SOF, at ¶¶ 24-31). The plaintiff's union advised her that the amount of time the defendant gave her to travel between the schools, prepare for class, and eat lunch was insufficient and in violation of the union contract. (Plaintiff's SOF, at ¶ 22). On October 1, 2009, the plaintiff complained and the defendant gave her an additional 10 minutes to travel from Atlantic to Sterling. (Plaintiff's SOF, at ¶ 27). Despite the extra time, though, the plaintiff was late again on at least one other occasion. (Plaintiff's SOF, at ¶ 30). Because she had previously received oral warnings, Principal Barrett sent her a written warning, on November 17, 2009. (Plaintiff's SOF, at ¶ 32). On or about the same day, the plaintiff met with Principal Barrett to discuss the written warning. The plaintiff's recollection of the meeting differs from that of the defendant. According to the plaintiff, she asked Principal Barrett if she was being disciplined and treated in a hostile manner because she was wearing a headscarf. (Plaintiff's SOF, at ¶ 32). According to Principal Barrett, the assistant principal, and another teacher who were all present at the meeting, the plaintiff displayed inappropriate and hostile behavior toward Principal Barrett. The plaintiff accused Principal Barret of being a racist and left the meeting before it ended. (Quincy SOF, at ¶ 25).

The plaintiff received a second written warning on November 18, 2009. This warning referenced her behavior at the meeting and reminded her again that she had been warned about her repeated tardiness. (Plaintiff's SOF, at ¶ 34; Quincy SOF, at ¶ 26). The plaintiff denies ever being late again but the defendant contends that the plaintiff continued to be tardy and therefore received another written warning on December 3, 2009. (Plaintiff's SOF, at ¶ 37; Quincy SOF, at ¶ 27). In response, the plaintiff left the school to speak with Superintendent Richard DeCristofaro ("DeCristofaro"), and then went home for the day because she was upset. (Plaintiff's SOF, at ¶¶ 39-40; Quincy SOF, at ¶ 28). The defendant sent the plaintiff a notice of intent to suspend her on December 22, 2009. The plaintiff was given the opportunity to discuss the planned suspension with Superintendent DeCristofaro but she failed to attend the meeting and then did not return to work after December 22, 2009. (Plaintiff's SOF, at ¶ 41-42; Quincy SOF, at ¶¶ 29-30).

On December 23, 2009, the plaintiff sent an email to the Director of Human Resources, Kevin Mulvey ("Mulvey"), stating that she suffered from ADHD and wanted to learn what accommodations could be made to address it. (Plaintiff's SOF, at ¶ 43; Ex. M).

On January 7, 2010, and while the plaintiff was out ostensibly on sick leave, the defendant sent her a letter suspending her for three days due to her "consistent tardiness and inappropriate conduct." (Quincy SOF, at ¶ 31; Ex. 15). On January 9, 2010, the plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging religious discrimination and retaliation. (Plaintiff's SOF, at ¶ 46; Quincy SOF, at ¶ 32, Ex. 40).

c. The Defendant's Use of an Independent Medical Examiner

The plaintiff did not return to work after her suspension and remained on sick leave for the rest of the 2009-2010 school year, reportedly because of her ADHD. (Quincy SOF, at ¶ 35). The union president told the plaintiff about a sick bank fund available to employees who have used all of their accrued sick time but are still unable to return to work. (Plaintiff's SOF, at ¶ 47). The union president explained that the defendant had the right to order the plaintiff to submit to an examination if the plaintiff sought paid sick leave. (Plaintiff's SOF, at ¶ 47). The plaintiff subsequently did seek paid sick leave and the defendant did exercise its right to have her undergo an independent medical exam ("IME") to confirm her eligibility. (Plaintiff's SOF, at ¶ 48; Quincy SOF, at ¶ 36). The plaintiff underwent the IME and was deemed unable to work, and was granted sick bank benefits retroactive to the date of her request. (Plaintiff's SOF, at ¶ 50; Quincy SOF, at ¶ 38). The plaintiff believed that the defendant required the IME in retaliation for her filing a charge with the EEOC, and she amended her EEOC charge to include an additional claim of discriminatory retaliation.

2. 2010-2011 School Year

a. Failure to Accommodate Disability and Discriminatory Treatment

In the summer of 2010, the plaintiff informed the defendant that she was ready to return to work for the...