Reiss v. Hernandez, 17cv159

CAROLE REISS, Plaintiff, v. MELITINA HERNANDEZ, et al., Defendants.

17cv159

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 26, 2019

MEMORANDUM & ORDER

WILLIAM H. PAULEY III, Senior United States District Judge:

Defendants New York City Department of Education ("BOE"), Melitina Hernandez, and Jennifer Johnson (collectively, "Defendants") move for summary judgment dismissing pro se Plaintiff Carole Reiss's discrimination, retaliation, and constructive discharge action brought under the Age Discrimination in Employment Act ("ADEA"). For the reasons that follow, Defendants' motion for summary judgment is granted.

BACKGROUND

Reiss began working for the BOE as a substitute health science teacher in 1974. (Defs.' Local Civil Rule 56.1 Statement of Material Facts in Supp. of its Mot. for Summ. J., ECF No. 64 ("Defs.' 56.1"), ¶ 1; Pl.'s Resp. to Defs.' Local Civil Rule 56.1 Statement, ECF No. 70 ("Pl.'s 56.1"), ¶ 1.) In 2013, she was placed as a permanent physical education teacher at P.S. 123 Mahalia Jackson ("P.S. 123"). (Defs.' 56.1 ¶ 3; Pl.'s 56.1 ¶ 3.) Reiss also taught health as a "push in" teacher at P.S. 123, though she claims to only have taught it in her last year at the school. (Defs.' 56.1 ¶¶ 2, 4; Pl.'s 56.1 ¶¶ 2, 4.)

Prior to the 2013-14 school year, the BOE rated teachers based on classroom observations as either "satisfactory" or "unsatisfactory." (Defs.' 56.1 ¶ 10; Pl.'s 56.1 ¶ 10.) Reiss avers that she always received "satisfactory" ratings under that system. (Pl. Carol Reiss' Decl. in Opp'n, ECF No. 69 ("Reiss Decl."), ¶ 2.) However, beginning in the 2013-14 school year, the BOE began evaluating teachers using the new ADVANCE system. (Defs.' 56.1 ¶¶ 5, 7; Pl.'s 56.1 ¶¶ 5, 7.) The BOE used this system throughout the relevant time period of this lawsuit. (Defs.' 56.1 ¶¶ 5, 7, 37, 86; Pl.'s 56.1 ¶¶ 5, 7, 37, 86.)

The ADVANCE system uses multiple components to evaluate teachers. (Defs.' 56.1 ¶ 6; Pl.'s 56.1 ¶ 6.) The Measures of Teacher Practice ("MOTP") component—which includes teacher observations—comprises 60% of ADVANCE's "end of year overall rating." (Defs.' 56.1 ¶¶ 7, 11, 12; Pl.'s 56.1 ¶¶ 7, 11, 12.) The remaining 40% of an end-of-year rating is comprised of Measures of Student Learning. (Defs.' 56.1 ¶¶ 7, 11, 17; Pl.'s 56.1 ¶¶ 7, 11, 17.) The ADVANCE system also implemented a new rating scale that uses the categories "highly effective," "effective," "developing," and "ineffective." (Defs.' 56.1 ¶ 8; Pl.'s 56.1 ¶ 8.)

After the 2013-14 school year, Principal Melitina Hernandez ("Principal Hernandez"), who became principal in April 2013, gave Reiss an overall rating of "effective." (Defs.' 56.1 ¶¶ 2, 19; Pl.'s 56.1 ¶¶ 2, 19.) But Reiss's ratings declined in subsequent years, although Reiss maintains that her pedagogy did not change after the 2013-14 school year. (Reiss Decl. ¶ 20.) Notably, at the start of the 2014-15 school year, Jennifer Johnson ("AP Johnson") became an Assistant Principal at P.S. 123. (Defs.' 56.1 ¶ 27; Pl.'s 56.1 ¶ 27.)

During the 2014-15 school year, observers—including AP Johnson and Principal Hernandez on two occasions—rated Reiss "ineffective" in most observation components for all five of her observations. (Defs.' 56.1 ¶¶ 43-47; Pl.'s 56.1 ¶¶ 43-47.) Accordingly, Reiss received a rating of "ineffective" for her MOTP and as her overall rating. (Defs' 56.1 ¶¶ 48, 56; Pl.'s 56.1 ¶¶ 48, 56.) That same year, 32 tenured teachers aged 40 years or older at P.S. 123received an end-of-year rating. (Defs.' 56.1 ¶ 64; Pl.'s 56.1 ¶ 64.) Of those 32, 20 received either "effective" or "satisfactory" ratings, eight received "developing" ratings, and four received "ineffective" ratings. (Defs.' 56.1 ¶¶ 64-67; Pl.'s 56.1 ¶¶ 64-67.)¹ There were also seven tenured teachers under 40 years old at P.S. 123 that school year. (Defs.' 56.1 ¶ 68; Pl.'s 56.1 ¶ 68.) Of those seven, five received "effective" ratings, while two received "developing" ratings. (Defs.' 56.1 ¶¶ 69-70; Pl.'s 56.1 ¶¶ 69-70.) Reiss appealed her 2014-15 "ineffective" rating to a Chancellor's Committee, but she did not prevail. (Defs.' 56.1 ¶¶ 58-63; Pl.'s 56.1 ¶¶ 58-63.) Reiss maintains that this evaluation—as well as her 2015-16 evaluation—was done improperly. (See Reiss Decl. ¶ 3.)

Reiss's "ineffective" MOTP rating prompted a June 15, 2015 meeting with Assistant Principal Jacqueline Thorne-Figueroa ("AP Thorne-Figueroa") and Principal Hernandez. (Defs.' 56.1 ¶ 49; Pl.'s 56.1 ¶ 49.) On June 24, 2015, BOE officials reviewed Reiss's file and noted that the original copy of a May 15, 2015 disciplinary letter was missing. (Defs.' 56.1 ¶ 50; Pl.'s 56.1 ¶ 50.) That letter summarized a May 14, 2015 meeting between Reiss, AP Johnson, Principal Hernandez, and Reiss's union representative at which they discussed "several situations that involved [Reiss's] students . . . leaving the gym in the basement and roaming around the building," including one situation in which students created a flood. (Decl. of Assistant Corporation Counsel Samantha P. Turetsky, ECF No. 65 ("Turetsky Decl."), Ex. R.) At the May 14, 2015 meeting, AP Johnson advised Reiss that "this incident may lead to further disciplinary action including an adverse rating and charges that could lead to" termination. (Defs.' 56.1 ¶ 36; Pl.'s 56.1 ¶ 36.) Reiss maintains that the flooding incident has been mischaracterized, in that the flood started in a different classroom. (Reiss Decl. ¶ 7.)

Ultimately, BOE officials realized Reiss had the original copy of the letter, and AP Thorne-Figueroa and Principal Hernandez questioned her about how and why she had it in her possession. (Defs.' 56.1 ¶¶ 50-55; Pl.'s 56.1 ¶¶ 50-55.) The parties dispute the overall tone of the questioning. Specifically, Defendants claim that Reiss became argumentative and unprofessional during their discussion, and they generally intimate that Reiss may have stolen the letter at the June 15 meeting. (Defs.' 56.1 ¶¶ 50-55.) Reiss claims that Defendants wrongfully accused her of taking the letter and that AP Thorne-Figueroa "verbally attacked" her. (Pl.'s' 56.1 ¶¶ 50-55; Reiss Decl. ¶ 22.) She also maintains that she behaved professionally at the meeting. (Reiss Decl. ¶ 23.) Further, Reiss states that the letter "was removed from [her] file at the direction of" her union representative. (Reiss Decl. ¶ 24.)

Further as a result of her "ineffective" rating, Reiss was placed on a Teacher Improvement Plan ("TIP") leading into the 2015-16 school year. (Defs.' 56.1 ¶ 71; Pl.'s 56.1 ¶ 71.) TIPs include specific areas for improvement, along with recommendations and timelines for meeting those goals. (Defs.' 56.1 ¶ 74; Pl.'s 56.1 ¶ 74.) During the 2015-16 school year, Reiss also had several run-ins with Principal Hernandez. On May 15, 2016, Hernandez instructed Reiss to include activities other than basketball in her classes after parents and students complained about her curriculum's lack of diversity. (Defs.' 56.1 ¶¶ 75-78; Pl.'s 56.1 ¶¶ 75, 77-78; Turetsky Decl. Ex. AA.) Consequently, Reiss instructed her class that "they could not play basketball during their free enterprise time and that they must leave their basketballs at home." (Pl.'s 56.1 ¶ 78.) Reiss also apparently questioned students during an observation about what they said to AP Johnson regarding Reiss's class. (Defs.' 56.1 ¶ 83; Pl.'s 56.1 ¶ 83.) In response, Principal Hernandez sent Reiss a letter claiming her conduct was insubordinate and unprofessional. (Defs.' 56.1 ¶ 79; Pl.'s 56.1 ¶ 79.) The letter alleged that Reiss's statement tothe class misrepresented Principal Hernandez's instruction to diversify the curriculum. (Defs.' 56.1 ¶ 81; Pl.'s 56.1 ¶ 81.)

On June 27, 2016, Principal Hernandez and AP Johnson held a disciplinary meeting with Reiss to address her alleged failure to supervise students. (Defs.' 56.1 ¶¶ 84-85; Pl.'s 56.1 ¶¶ 84-85.) Specifically, Principal Hernandez and AP Johnson alleged that Reiss failed to supervise her students and created an unsafe environment by permitting students to practice a dance performance during class without prior approval of the principal. (Defs.' 56.1 ¶¶ 84-85; Pl.'s 56.1 ¶ 84-85.) Reiss claims that she supervised the students and, in any event, the students told her AP Johnson had given them permission to dance. (Pl.'s 56.1 ¶ 84; Reiss Decl. ¶ 33.)

During the 2015-16 school year, Reiss partook in six informal observations—three of which were conducted by AP Johnson or Principal Hernandez. In four of the observations, the BOE rated Reiss "ineffective" or "n/a" in most categories. (Defs.' 56.1 ¶¶ 87-93; Pl.'s 56.1 ¶¶ 87-93.) In the remaining two observations, the BOE rated Reiss "developing" or "n/a" in most categories. (Defs.' 56.1 ¶¶ 90, 93; Pl.'s 56.1 ¶ 87-93.) Reiss disputes one of those observations, claiming that she was not actually evaluated. (Pl.'s 56.1 ¶ 92.) In any event, Reiss received an overall rating of "ineffective" for the 2015-16 school year. (Defs.' 56.1 ¶¶ 94-95; Pl.'s 56.1 ¶¶ 94-95.) That same school year, 28 tenured teachers aged 40 or older at P.S. 123 received an end-of-year rating. (Defs.' 56.1 ¶ 103.) Of those 28, 18 received either "effective" or "satisfactory" ratings, seven received "developing" ratings, and three received "ineffective" ratings. (Defs.' 56.1 ¶¶ 104-06; Pl.'s 56.1 ¶¶ 104-06.) The parties do not break down the statistics on teachers below 40 years old for that school year. Reiss appealed her 2015-16 "ineffective" rating to a Chancellor's Committee, who rejected her claims. (Defs.' 56.1 ¶¶ 96-102; Pl.'s 56.1 ¶¶ 96-102.)

In response to her "ineffective" ratings and the disciplinary measures she faced, Reiss filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") around July 1, 2016. (Defs.' 56.1 ¶ 116; Pl.'s 56.1 ¶ 116.) In addition, Reiss retired from her BOE position, effective July 28, 2016. (Defs.' 56.1 ¶ 114; Pl.'s 56.1 ¶ 114.) Reiss claims she would have been subjected to a mandatory § 3020-a proceeding...