Governale v. Cold Spring Harbor Cent. Sch. Dist., 14-CV-2689 (JMA) (SIL)

ANN MARIE GOVERNALE, Plaintiff, v. COLD SPRING HARBOR CENTRAL SCHOOL DISTRICT, JAY MATUK,JUDITH WILANSKY, DENISE CAMPBELL, and DIANE WALSH,(in their Official and Individual Capacities Pursuant to § 1983 andNYEL §§ 290 et. seq.). Defendants.

14-CV-2689 (JMA) (SIL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 29, 2017

MEMORANDUM AND ORDER

LOCKE, Magistrate Judge:

Presently before the Court is a motion for summary judgment submitted by Defendants, Cold Spring Harbor Central School District ("Cold Spring Harbor" or "the District"), Jay Matuk ("Matuk"), Judith Wilansky ("Wilansky"), Denise Campbell ("Campbell"), and Diane Walsh ("Walsh") (collectively "Defendants"). See Docket Entry ("DE") [29]. By way of Complaint filed April 29, 2014, Plaintiff Ann Marie Governale ("Plaintiff" or "Governale"), brings this action alleging claims pursuant to: (1) the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; (2) 42 U.S.C. § 1983; and (3) the New York State Human Rights Law ("NYSHRL") § 290 et. seq. See Complaint (Compl."), DE [1]. On March 4, 2016, Defendants filed their motion pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 56(a) ("Rule 56") for summary judgment, which Plaintiff opposes. See DE [29], [35]. On May 10, 2017, Judge Azrack referred the motion to this Court for a Report and Recommendation as to whether it should be granted. See DE [41]. On June 15, 2017, pursuant to 28 U.S.C. § 636(c), the parties filed an executed Notice, Consent, and Reference of a Civil Action to a Magistrate Judge, indicating their intention to have this Court "conduct all proceedings and order the entry of a final judgment" on the motion, which Judge Azrack So Ordered on June 19, 2017. See DE [43, 44]. For the reasons set forth herein, Defendants' motion is granted in part and denied in part.

I. RELEVANT FACTUAL BACKGROUND

The following facts are taken from the parties' pleadings, deposition transcripts, affidavits, exhibits and respective Rule 56.1 statements. Unless otherwise noted, the following facts are not in dispute.

Plaintiff began working at Cold Spring Harbor as a Special Education Leave Replacement Teacher ("Leave Replacement Teacher") in the Special Education Department during the 2008-2009 school year. See EEOC Affidavit of Ann Marie Governale ("Governale Affidavit"), DE [31-33], at 1.¹ During Governale's first year, she was assigned to teach Math, English, and Resource Room, and work mostly with special education students. See Governale Deposition ("Governale Dep."), DE [37-1], at 43. Defendants Diane Walsh, the Chairperson of the Special Education Department, Denise Campbell, the Director of Special Education, and Jay Matuk, the Principal at Cold Spring Harbor, had supervisory authority over Plaintiff. See Deposition of Denise Campbell ("Campbell Dep."), DE [37-2] at 11-16. Governalereceived positive performance evaluations and made no complaints concerning the treatment of special education students during her first year. See id. at 38, 44.

Plaintiff was then rehired for a one-year appointment during the 2009-2010 school year as a Secondary Special Education Teacher. See Governale Affidavit at 2. In the spring of 2010, Governale applied, but was not hired, for a probationary position as an English Teacher at Cold Spring Harbor. See id. at 2-3. Instead, Governale, once again, worked with mostly special education students and received a positive performance evaluation for the 2009-2010 school year. See Campbell Dep. at 39, 62. Plaintiff does not recall raising any issues and, "for the most part," was satisfied with the special education services provided for students during her second year. See Governale Dep. 62- 63.

Governale was hired again for another one-year appointment, for the 2010-2011 school year as a Leave Replacement Teacher assigned to teach English classes to special education students. See Governale Affidavit at 3; Governale Dep. at 82-83. During this school year, Governale, along with all the other teachers in the Special Education Department, complained to Walsh "of the difficulty getting [lesson] plans from teachers, and that it was seriously affecting our ability to meet the [Individualized Educational Program ("IEP")] accommodations of the special education students." Id. Despite the complaint, Plaintiff received a positive performance evaluation for the 2010-2011 school year. See id. at 39-40.

Governale, once again, was hired as a Leave Replacement Teacher for the 2011-2012 school year. See id. at 104-05; see also Governale Aff. at 5. During thatschool year, Plaintiff made several complaints about the special education services offered at the school. See Governale Dep. at 108. Governale alleges that, during the 2011-2012 school year, she complained to Walsh about Cold Spring Harbor's New York State Academic Intervention Services Program ("AIS"), which can be provided, and applies, to both special education and general education students. See Governale Aff. at 6; Campbell Dep. at 32-34, 82-83. Plaintiff also states that she voiced concerns to Walsh about Peter Gregorchuk, a Special Education teacher, who was allegedly helping special education students cheat on their exams, providing students with test answers. See Governale Dep. at 117-18. Further, Governale also advised Walsh that a teacher assistant ("TA") named Christine Barrese was writing research papers for special education students. See id. at 124-25. Plaintiff admits that, at the time, other teachers also complained about cheating at Cold Spring Harbor. See id. at 97. Moreover, during the school year, Governale once again voiced her concern that teachers were not following students' IEPs and that the special education students were not being served by the programs offered. See id. at 133-35, 138-39. Plaintiff received a positive performance evaluation for the 2011-2012 school year. See Governale Aff. at 7-8. Governale admits that during her first four years at Cold Spring Harbor she had no problems with how she was treated or any problems with the District's administration. See Governale Dep. at 390.

The District alleges that there were no positions available for Plaintiff at Cold Spring Harbor for the 2012-2013 school year except for a one-year TA position. See, e.g., id. ¶ 45. In July of 2012, Plaintiff was not under contract with Cold SpringHarbor and was free to obtain employment for the 2012-2013 school year with any other school district. See Email from Denise Campbell to Ann Marie Governale, DE [31-9]. To that end, Campbell provided Plaintiff with leads for teaching jobs in other districts. See Campbell Dep. at 49. In response to Governale's request for help, Matuk also informed her that he would contact the Principal of Connetquot High School on her behalf. See Email from Ann Marie Governale to Jay Matuk, DE [31-10]. However, as Plaintiff was unable to get a job with another district for the 2012-2013 school year, she accepted a job as a TA at Cold Spring Harbor. See General Municipal Law § 50(h) Hearing of Ann Marie Governale, DE [31-4], at 49-50. The TA position paid a year salary of $27,995.00, which constituted a pay cut of more than $70,000. See Ann Marie Governale TA Position Offer Letter, DE [37-4].

Plaintiff alleges that she increased her advocacy, during the 2012-2013 school year, for the special education learning disabled students at the District. See Governale Dep. at 337-38. Specifically, during that year, Governale alleges that she complained, or increased her complaints, regarding the following:

(1) that kids with learning disabilities that were supposed to be receiving resource room as per their IEP's were pulled and placed in learning center with plaintiff; (2) that plaintiff did not agree with the way that Diane Walsh was running the department and thought that it did not serve the needs of the special education students; (3) that the special education students were being deprived of appropriate services and consistent support; (4) that the special education students were dumped on the teaching assistants and that it was not appropriate for meeting the needs of the students; (5) that there were not sufficient AIS programs in place for special education students; (6) that there was a lack of support and instruction offered to special education students; (7) that the learning center wasnot an appropriate placement for students that had been assigned to the resource room; and (8) that special education students were not receiving what they were entitled to.

Plaintiff's Counterstatement to Defendants' Statement of Facts Pursuant to Local Rule 56.1 and Plaintiff's Statement of Additional Facts Pursuant to Local Rule 56.1(b) ("Plaintiff's Counterstatement"), DE [36], ¶ 103; see also Governale Dep. at 202-04, 214-16, 220-23, 235, 241, 246-47, 342-46, 352-53, 380-81. Plaintiff further made complaints regarding the issue of TAs improperly providing AIS services. See Governale Dep. at 356-57. Governale acknowledges that other TAs made complaints, but alleges that no other teacher or TA advocated as strongly and frequently as she did. See id. at 357. Further, Plaintiff raised the issue that the duties she was tasked with as a TA were outside the parameters of the position. See id. at 235. By December 2012, Plaintiff had exceeded all her personal and sick days for the 2012-2013 school year. See Human Resources Notice, DE [31-24]. In February 2013, Governale alleges that she was told that there would not be a position available to her for the following school year due to budget cuts. See id. at 362.

During the 2012-2013 school year, Governale also had alleged issues regarding lateness and conflicts with other staff members. See Campbell Dep. at 98-100. Plaintiff testified about two incidents with TA Posey Heim ("Heim"). See Governale Dep. at 177-78, 260-62. With regard to the first incident, Governale testified that, while she was escorting a disabled student to class, she was...