Kunik v. N.Y.C. Dep't of Educ.

436 F.Supp.3d 684

Rimma KUNIK, Plaintiff,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, Principal Kaye Houlihan, and Assistant Principal Dorish Munoz Fuentes, Defendants.

15-CV-9512 (VSB)

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

Signed January 29, 2020

Filed January 31, 2020

Steven I. Lewbel, Melito & Adolfsen P.C., New York, New York, Counsel for Plaintiff

John P. Guyette, for Zachary W. Carter, Corporation Counsel, City of New York, New York, New York, Counsel for Defendants

OPINION & ORDER

VERNON S. BRODERICK, United States District Judge:

Before me is the motion of Kaye Houlihan and Dorish Munoz Fuentes (the "Defendants") for summary judgment dismissing Plaintiff Rimma Kunik's amended complaint, (Doc. 30), which asserts claims of retaliation, religious discrimination, age discrimination, hostile work environment, constructive discharge, procedural due process, and municipal liability pursuant to Title 42 United States Code, Section 1983. Plaintiff also brings retaliation and religious discrimination claims under the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. ("NYSHRL") and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 et seq. ("NYCHRL").

In a Memorandum & Order filed on September 27, 2017, I dismissed Plaintiff's § 1983 claims for retaliation, hostile work environment, constructive discharge, procedural due process, and municipal liability, and dismissed as time barred Plaintiff's § 1983 claims to the extent they accrued prior to December 18, 2012. I also dismissed Plaintiff's NYSHRL and NYCHRL claims as time-barred. (Doc 34, at 9–11). With regard to the incidents that occurred prior to December 18, 2019, I held that the incidents were primarily a series of discrete events which did not constitute a continuing violation, and were, therefore, barred from consideration as untimely. (Id. ) Plaintiff's claims for religious and age discrimination pursuant to § 1983 after December 18, 2012, were not dismissed, and are the only claims that remain in the case.

Because I find that Plaintiff has failed to establish a prima facie case of age or religious discrimination under § 1983, Defendants' motion for summary judgment is GRANTED.

I. Background

A. Parties

As of the date of the filing of the Amended Complaint, Kunik was a 69-year-old female, native of Russia, and an observant member of the Jewish faith. (Defs.' Fact Statement ¶ 1.)¹ Kunik was employed by the Department of Education at Fort Hamilton High School ("FHHS") from 1994 until her departure in 2014, and became a Department of Education tenured teacher in 1995. (Defs.' Fact Statement ¶ 2; Pl.'s Fact Statement ¶¶ 106-107.)² She was licensed to teach English as a Second Language ("ESL") and English grades 7 through 12. (Defs.' Fact Statement ¶ 3; Pl.'s Fact Statement ¶ 110.)

From 2003 to 2013, Defendant Fuentes was the Assistant Principal of the Foreign Languages and ESL Department of FHHS (the "ESL Department"). (Pl.'s Fact Statement ¶ 241.) From 2012 until Kunik's departure, Defendant Houlihan was the Principal of FHHS. (Pl.'s Fact Statement ¶ 188.)

B. Plaintiff's Allegations³

After working at FHHS since 1994, Plaintiff experienced discriminatory behavior from her supervisors in the 2012-2013 and 2013-2014 school years. In the spring semester of 2013, Kunik was assigned a challenging schedule, "forcing her to literally resort to no more than 5 hours of sleep daily for the whole spring semester ... in order to comply with her contractual obligations." (Am. Compl. ¶ 28.) Thereafter, in a report dated April 9, 2013, Defendant Fuentes described Kunik as "confrontational." (Ernst Decl. Ex. M at 6.)⁴ A week later, on April 16, 2013, Kunik raised the problems she was having with Defendant Fuentes to Defendant Houlihan. (Am. Compl. ¶ 26.) Defendant Houlihan ignored Kunik's complaints. (Id. ¶ 26.) Kunik received an "unsatisfactory" rating for the 2012-2013 school year, and a "developing" rating for the 2013-2014 school year. (Defs.' Fact Statement ¶¶ 72, 88.) The unsatisfactory rating prohibited Kunik from teaching summer school, and prevented her from working for per-session pay. (Defs.' Fact Statement ¶¶ 137, 139.)

During the 2013-2014 school year, Kunik was not chosen for a professional development seminar. (Defs.' Fact Statement. ¶ 119.) During the 2013-2014 school year, Defendant Houlihan observed Kunik on six occasions. (Defs.' Fact Statement ¶ 75.) In connection with these observations, Kunik filed at least five APPR requests⁵ that claimed that the observation reports were not accurate, but Defendant Houlihan refused to accept Kunik's arguments, nor did she adjust the ratings. (Am. Compl. ¶ 50; Defs.' Fact Statement ¶ 72.)

In September 2014, Defendant Houlihan gave permission to Kunik to provide Houlihan with "artifacts"—additional information about observations—that were originally due in April, by October 1, 2014. (Defs.' Fact Statement ¶¶ 133-136; Pl.'s Fact Statement ¶¶ 166-169.) However, during the few days in which Kunik had to submit the artifacts, two of the days fell on Rosh-ha-Shana, the Jewish New Year, and the day after Rosh-ha-Shana was the Sabbath. (Pl.'s Fact Statement ¶ 167.) Therefore, Kunik could not submit the artifacts on those days, and she asked Defendant Houlihan for an extension based on Kunik's religious observances. (Id. ¶ 167-168) On September 28, Houlihan reiterated that the artifacts were due on October 1. (Defs.' Fact Statement ¶¶ 133-136; Pl.'s Fact Statement ¶¶ 166-169.)

Throughout the 2013-2014 school year, Kunik alleges that other teachers in the ESL Department were given better schedules than she was given. (Defs.' Fact Statement ¶¶ 105.) Specifically, Kunik was assigned five advanced preparation classes, which required more work than basic or intermediate preparation classes, while other younger and non-Jewish teachers in the ESL Department received either fewer advanced preparation classes or basic and intermediate preparation classes. (Am. Compl. ¶ 46.)

Kunik resigned from her post on December 9, 2014. (Defs.' Fact Statement ¶ 4.) Because she resigned in her twenty-first year of tenured employment, Kunik lost certain benefits that she would have received had she completed an additional year. (Am. Compl. ¶ 54.) She also lost the opportunity to contribute additional funds to her annuity account. (Id. ¶ 56.) During her final years at FHHS, Kunik suffered from high blood pressure, a recurrence of her ulcer, bowel problems, a thyroid malfunction, and emotional distress—injuries that she attributes to the treatment she was subjected to by Defendants. (Pl.'s Fact Statement ¶¶ 171-175.)

II. Procedural History

Plaintiff initiated this action by filing a complaint on December 18, 2015. (Doc. 5.) After a number of issues arose with Plaintiff's service of the complaint, the parties appeared before me on July 13, 2016, to discuss the matter. (See Docs. 7, 10, 12, 14, 19, 21.) By order dated July 14, 2016, I granted Plaintiff an extension of time to effectuate proper service on all Defendants, and the parties were directed to meet and confer on or before September 12, 2016, regarding purported deficiencies in the complaint. (Doc. 21.) I also directed the parties to submit a proposed briefing schedule if Defendants intended to file a motion to dismiss. (Id. ) Pursuant to that order, the parties notified me that Plaintiff would file an amended complaint and advised me of their agreed upon schedule for the filing of Defendants' motion to dismiss. (See Doc. 24.) On September 12, 2016, Plaintiff filed her Verified Amended Complaint ("Amended Complaint"). (Doc. 23.) Defendants filed their motion to dismiss and memorandum of law on November 10, 2016, (Docs. 30–31), Plaintiff filed her opposition papers on December 12, 2016, (Doc. 32), and Defendants filed their reply on December 23, 2016, (Doc. 33).

On September 27, 2017, I issued a Memorandum & Opinion on Defendants' motion to dismiss. (Doc. 34). I dismissed Plaintiff's retaliation, hostile work environment, constructive discharge, procedural due process, and municipal liability claims pursuant to § 1983. I also dismissed Plaintiff's claims pursuant to the NYSHRL and the NYCHRL as time-barred. Furthermore, I dismissed Plaintiff's claims to the extent they accrued prior to December 18, 2012, as time-barred. (Doc. 34 at 9). I held that these incidents were primarily a series of discrete events which did not constitute a continuing violation, and were, therefore, barred from consideration by this court. (Id. ) Plaintiff's claims for religious and age discrimination pursuant to § 1983 after December 18, 2012, were not dismissed.

On October 23, 2017, I entered a Case Management Plan. (Doc. 37). On June 4, 2018, I referred the case to Magistrate Judge Henry B. Pitman for general pre-trial matters, including scheduling, discovery, non-dispositive pre-trial motions, and settlement.⁶ On December 12, 2018, Defendants submitted a letter informing me of their intent to move for summary judgment, and setting a briefing schedule, which I adopted on December 14, 2019. (Doc. 59). Defendants filed their motion for summary judgment on January 18, 2019, (Doc. 62), along with a memorandum of law, (Doc. 64), a Statement of Undisputed Material Facts pursuant to Local Rule 56.1, (Doc. 67), and a Declaration of Leo T. Ernst in support with exhibits, (Doc. 63). On February 1, 2019, Plaintiff sought an extension of time to file her opposition to Defendants' motion, which I granted. (Doc. 66). In opposition to the motion, Plaintiff submitted a memorandum of law with responses to Defendants' Statement of Undisputed Facts, a Supplemental Plaintiff's Counter Statement of Undisputed Facts, (Docs. 69, 69-1, 69-2), and a Declaration of Steven I. Lewbel with exhibits (Doc. 68). Defendants filed a memorandum of law in reply on April 2, 2019. (Doc. 71)

III. Legal Standard

Summary judgment is appropriate when "the parties' submissions show that there is no genuine issue as to any material fact and the...