Ramirez v. New York City Bd. of Educ.

481 F.Supp.2d 209

Julio RAMIREZ, Plaintiff, v. NEW YORK CITY BOARD OF EDUCATION, Defendant.

No. 03-CV-4765.

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

March 30, 2007.

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Saul D. Zabell, Esq., Zabell & Associates, P.C., Bohemia, NY, for the Plaintiff.

Cindy Switzer, Esq., Holly Rachel Gerstenfeld, Esq., The City of New York Law Department, New York, NY, for the Defendant.

MEMORANDUM AND ORDER

GLASSER, Senior District Judge.

INTRODUCTION

Plaintiff Julio Ramirez ("Ramirez" or "plaintiff') brought this action against his former-employer, defendant New York City Board of Education (the "Board"),¹ alleging disability discrimination in violation of the Americans with Disabilities Act ("ADA"), the Family and Medical Leave Act of 1993 ("FMLA"), the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"). The Board now moves for summary judgment against Ramirez pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons explained below, the Court grants the Board's motion.

FACTS

Unless otherwise indicated, the facts set forth below are undisputed.²

Ramirez was hired as a Provisional Preparatory Teacher ("PPT") by the Board. See Def.'s 56.1 Statement ¶ 1. The Collective Bargaining Agreement between the Board and the United Federation of Teachers defines a PPT as "a person who has not yet completed all the requirements for New York State provisional certification, but who holds a New York State Temporary License." Def.'s 56.1 Statement ¶ 2; Declaration of Cindy E. Switzer ("Def.'s Decl."), Ex. G. Prior to February 1, 2003, a PPT was permitted to teach for a period of three years without full certification. The renewal of the license to teach each year was dependent on receiving a satisfactory rating from the school at which the PPT was assigned.³ See id. Ramirez taught Spanish at August Martin High School ("August Martin") from September 1996 through June 2001. Ramirez was classified as a PPT because during the period in question he had not passed either the Liberal Arts and Sciences Test (LAST) or the Assessment of Teaching Skills-Written (ATS-W), both of which are required for full certification in New York. See Def.'s 56.1 Statement ¶ 2; Def.'s Decl., Ex. D.

Epilepsy

Ramirez was first diagnosed with epilepsy while he was living in the Dominican Republic, approximately eleven years before he started teaching at August Martin. See Def.'s 56.1 Statement ¶ 25; Def.'s Decl., Ex. A at 42:14-14. According to Ramirez, the diagnosing physician's sole recommendation was that he "stay out of difficult violent loud situations; but place[] [himself] in situations where [he] felt relaxed, tranquil and secure." Def.'s Decl., Ex. A at 44:7-10. Ramirez testified that after 1985 he suffered between ten and fifteen minor convulsions per year. See id. at 54:2-23. In 1994, Ramirez was prescribed Dilantin, an anti-epileptic medication, to prophylactically control the seizures. See id. at 54:24-55:11. On June 8, 2001, Ramirez experienced his first and only epileptic seizure while at work. See id. at 68:7-9, 95:12-96:8.

Depression

Ramirez was diagnosed with depression in April 2001, at which time he was prescribed Celaxa. See id. at 30:12-31:3. Ramirez stated that he began feeling symptoms of depression in September of 1996, but that the symptoms worsened after he was hit on the head with a newspaper by a student on March 23, 2001. See id. at 38:10-25; Affidavit of Julio Ramirez ("Pl.'s Aff.") ¶ 14. Ramirez testified that he "didn't have a great depression" while employed at Augustin Martin. Id. at 33:2. In response to the question, "So in your opinion your symptoms were under control at the time you were working for the Board of Ed," Ramirez replied, "The job of being an educator satisfies me wherever I am and whatever I'm doing. There's really no place for one to be thinking of one's own problems .... The job helped me to control it." Id. at 33:3-13. Ramirez further explained that when he was working, the "depression practically disappear[ed]." Id. at 34:3.

High Blood Pressure

Ramirez experienced his first episode of arrhythmia in February 1998. See id. at 77:12-78:11. In May of 1998, Ramirez returned to the hospital where he was diagnosed with high blood pressure and prescribed Zocor. See id. at 77:19-85:11. Ramirez testified that his symptoms consist of moments when he feels his "heart beat too rapidly during several minutes and that this repeats itself and can repeat itself at any moment even if [he is] lying down to go to sleep." Id. at 82:18-21. Ramirez suffered from approximately eight to twelve episodes of arrhythmia while working at August Martin. Id. at 87:14-16. Ramirez testified that on these occasions he would experience pain for several hours that would require him to lie down. See Def.'s Decl., Ex. F. at 13:8-12. He testified that, after the first attack in 1998, he "knew ... how to face the situation .... That I should feel satisfied with that which I did and not worry so much...." Def.'s Decl., Ex. A at 85:14:19. Ramirez stated that Zocor "helped [] a lot" to alleviate the arrhythmia. Id. at 85:11.

Ramirez's Absences

Ramirez was absent for fifty-two days during the 1999-2000 school year. See Def.'S 56.1 Statement ¶ 9; Def.'s Decl., Ex. Q. Ramirez claims that forty-three of those absences were taken pursuant to applied-for FMLA leave⁴ See Def.'s Decl., Exs. H and I; Pl.'s 56.1 Counter Statement 119. Ramirez's absences from April 5-17, 2001, were the only absences for which he submitted supporting documentation. Those documents stated that during his absence he experienced "Parkinson's-like syndrome, [Hypertension], Anxiety, [and] Depression." Def.'s 56.1 Statement ¶ 8; Def.'s Decl., Ex. J. August Martin's principal, Geraldine Taylor-Brown, rated Ramirez's performance satisfactory on the Annual Professional Performance Review and Report on Probationary Service of Pedagological Employee (the "Annual Review and Report") for the 1999-2000 school year.⁵ See Def.'s Decl., Ex. Q.

Ramirez was absent for forty-two days during the 2000-2001 school year.⁶ See Def.'s 56.1 Statement ¶ 11; Def.'s Decl., Ex. R. According to documents submitted by Ramirez from his physician, six days of absence between January 24-February 12, 2001, were due to "[a]cute Bronchitis and [upper respiratory infection]." Def.'s Decl., Ex. M. The eleven days of absence between April 2-23, 2001, were due to "upper airway infection with bronchitis." Def.'s Decl., Ex. N; see also Def.'s Decl., Ex. 0. Six additional days of absence were due to "high blood pressure." Def.'s Decl., Ex. P. There are nineteen outstanding absences for which Ramirez did not submit medical documentation until after he received the unsatisfactory rating. See Def.'s Decl., Ex. T. Ramirez states that fourteen of these absences were caused by a student who struck Ramirez on the head with a rolled-up newspaper. See Pl.'s Aff. ¶ 14; Pl.'s 56.1 Counter Statement ¶ 11.

Termination of Ramirez's Employment at August Martin

Taylor-Brown rated Ramirez's performance unsatisfactory on the Annual Review and Report for the 2000-2001 school year. See Def.'s Decl., Ex. R. Ramirez acknowledged receipt of the rating by signing the Annual Review and Report on June 22, 2001. See id. Due to the terms of the Collective Bargaining Agreement, Ramirez could not maintain his PPT status after he was rated unsatisfactory, and as a result, August Martin "terminated" Ramirez.⁷ See Def.'s Decl., Ex. G.

Ramirez avers that he received mailings from August Martin during the summer of 2001 in anticipation of the upcoming school year. See Pl.'s Aff. 112. Ramirez stated that he showed up for work on September 4, 2001, and on the first day of teaching, September 6, he complained to his supervisor, Novlett-Morgan, that he did not have a teaching schedule. See id. ¶¶ 3, 4. Novlett-Morgan told Ramirez to speak with Taylor-Brown, who informed Ramirez that he would have to discuss the matter with the superintendent because he did not believe that the school had a job for Ramirez. See id. ¶ 5. That same day, Ramirez spoke with his union representative who advised him that he did not have a job, and that he should speak with the superintendent and appeal the unsatisfactory rating. See id. ¶ 6. Later that day, Ramirez met with the superintendent, who confirmed that Ramirez no longer had a job at August Martin due to the unsatisfactory rating, but that he could appeal the unsatisfactory rating to the Chancellor's Committee. See id. ¶ 8.

Ramirez instituted an appeal by way of letter on September 6, 2001. See Pl.'s Aff. ¶ 7, Ex. B. The Chancellor's Committee held a hearing on February 14, 2002, and soon thereafter issued its recommendation that the "appeal be denied and the rating of `Unsatisfactory' be sustained." Def.'s Decl., Ex. K. The report published by the Chancellor's Committee summarized Taylor-Brown's testimony at the hearing, which stated in pertinent part:

Ramirez's excessive absence broke the continuity of instruction for 150 students in his classes. Regents diplomas for these students were put in jeopardy.... The Appellant's absences affected the academic success of the students. The Appellant performs well in the classroom but he has to be there in order to deliver his services .... The "U" rating reflects too frequent disruptions of instruction.

Id. The Chancellor's Committee found that, while Ramirez's "teaching abilities [were] good," the unsatisfactory rating was based "solely on excessive absence." Id. The Chancellor's Committee further explained that the "fact that the absences are excused or that they fall within the teacher's allowance of self-certified sick days, has no bearing on the issue of excessive absence .... it is not the responsibility of the Rating Officer to prove that a teacher's absence is disruptive to the school's organization. It is presumed that every absence by a...