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

697 F.Supp.3d 30

Marie VERNE, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION and Melanie Katz,Principal of Franklin Delano Roosevelt High School, Defendants.

21 Civ. 5427 (JPC)

United States District Court, S.D. New York

Filed September 29, 2023

Signed September 28, 2023

Bryan Glass, Glass Harlow & Hogrogian LLP, New York, NY, for Plaintiff.

Elisheva Leah Rosen, NYC Law Department Labor and Employment, New York, NY, for Defendants.

OPINION AND ORDER

JOHN P. CRONAN, United States District Judge:

Marie Verne, a former high school teacher in New York City, brings claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. ("ADEA"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"); and the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. ("ADA"), against her former employer, the New York City Department of Education (the "DOE"), alleging that the DOE discriminated against her on the basis of her age and disability, created a hostile work environment, and failed to accommodate her religion and disability. Verne also brings claims under the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq. ("NYCHRL"), against Melanie Katz, the Principal of the school where she worked, for age discrimination and the creation of a hostile work environment.

On September 30, 2022, the Court issued an Opinion and Order granting in part and denying in part Defendants' motion to dismiss Verne's Amended Complaint. Verne v. New York City Dep't of Educ., No. 21 Civ. 5427 (JPC), 2022 WL 4626533 (S.D.N.Y. Sept. 30, 2022). With discovery now complete, before the Court is Defendants' motion for summary judgment on Verne's remaining causes of action. For the reasons that follow, the Court grants Defendants' summary judgment motion in part and denies it in part. The Court grants summary judgment in favor of the DOE on Verne's ADA discrimination, ADEA hostile work environment, ADA hostile work environment, and Title VII failure to accommodate claims. The Court denies summary judgment on Verne's ADEA discrimination and ADA failure to accommodate claims against the DOE, and on her NYCHRL claim against Katz.

I. Background

A. Facts¹

Verne, a Seventh Day Adventist who is sixty-five years of age, was employed by the DOE from 2000 until her resignation on or about November 5, 2021. Defts. 56.1 Stmt. ¶¶ 1, 5; Dkt. 69 ("Glass Declaration"), Exh. 5 ("Verne Dep. Tr.") at 10:25-11:1. She began teaching Spanish full-time at Franklin Delano Roosevelt High School ("FDR High School") in Brooklyn in 2005. Defts. 56.1 Stmt. ¶ 2. She contends that, at some point in 2018 or 2019, she was diagnosed with arthritis. Id. ¶ 6; Glass Declaration, Exh. 4 (February 2019 medical records). At least during the 2018-2019 school year, Verne would occasionally attend physical therapy appointments for her arthritis after school hours. Defts. 56.1 Stmt. ¶ 8; Pl. Counter 56.1 Stmt. ¶ 8. Verne also testified that she was later diagnosed with spinal stenosis in 2021, a condition that she contends aggravated her preexisting arthritis and for which she occasionally attended physical therapy. Defts. 56.1 Stmt. ¶¶ 13, 15; Pl. Counter 56.1 Stmt. ¶ 14.

Two of Verne's supervisors at FDR High School were Katz and Elizabeth Messmann. In 2015, Katz was appointed the school's Principal, a position she continues to hold. Id. ¶ 3. Messmann served as the Assistant Principal of English as a New Language and World Languages at the high school from February 2017 to August 2021. Id. ¶ 4.²

From 2014 through 2017, Verne regularly received either "effective" or "highly effective" ratings in her performance reviews, based in part on informal and formal classroom observations. See Glass Declaration, Exhs. 12-14. Starting in the 2018-2019 school year, however, Verne's ratings took a turn for the worse. A classroom observation of Verne conducted on October 25, 2018 resulted in Messman giving Verne mostly "developing" ratings, in part criticizing Verne's pedagogical approach with her students. Defts. 56.1 Stmt. ¶ 27; Dkt. 63 ("Rosen Declaration"), Exh. G. Classroom observations of Verne conducted in December 2018, March 2019, and May 2019 yielded similar results. Defts. 56.1 Stmt. ¶¶ 28, 38, 42; Rosen Declaration, Exhs. J, R, V. In part due to these evaluations, Verne received an overall rating of "developing" for the 2018-2019 school year. Defts. 56.1 Stmt. ¶ 52; Rosen Declaration, Exh. I. As a result, Verne was placed on a Teacher Improvement Plan ("TIP") for the following school year. Defts. 56.1 Stmt. ¶ 71. Verne's union representative raised concerns to a district union representative that Verne's TIP was not achievable. Glass Declaration, Exh. 25.

The record reflects that additional concerns regarding Verne's performance arose during the 2018-2019 school year and continued into the following year. Messmann wrote to Verne about multiple complaints received from parents in fall 2018 relating to Verne's teaching ability, classroom behavior, and unresponsiveness to parents. Defts. 56.1 Stmt. ¶¶ 22-24; Rosen Declaration, Exhs. D-F. Following a handful of incidents—occurring largely in fall 2018—that caused Katz to question Verne's fitness for duty, Katz wrote to the superintendent responsible for FDR High School in December 2018, recommending that Verne undergo a psychological evaluation pursuant to New York Education Law section 2568. Rosen Declaration, Exh. K; see N.Y. Educ. L. § 2568 (allowing certain school superintendents "to require any person employed by the board of education . . . to submit to a medical examination . . . in order to determine the mental or physical capacity of such person to perform his duties"). The superintendent directed an examination and Verne was ultimately found fit for duty the following month. See Rosen Declaration, Exh. M. Nevertheless, Verne's difficulties continued through the spring 2019 semester, with Verne receiving four disciplinary letters in June, which accused her of having twelve tardy arrivals and twenty-one absent days over the course of the 2018-2019 school year (although eighteen of the absences were for medical reasons), ripping up a student's test in front of the class, and refusing to accept a student's work and giving that student a zero on a test for failing to sit in a specific seat. Defts. 56.1 Stmt. ¶¶ 40, 41, 43, 46. Verne, however, maintains that parking issues largely caused her tardy arrivals, disputes that she ripped up a student's test, and filed a grievance over Katz's "investigative protocols" with respect to the accusation concerning the student who did not sit in a particular seat, asserting that the charge "was not reasonable based on the evidence." Id. ¶ 45; Rosen Declaration, Exh. T; Glass Declaration, Exh. 19. Verne received two additional letters in her file the following school year. The first was dated October 11, 2019 and concerned Verne's supposed noncompliance with departmental grading policies. Defts. 56.1 Stmt. ¶ 51; Rosen Declaration, Exh. Y. Verne filed a grievance disputing this allegation. Glass Declaration, Exh. 17. The second, dated February 24, 2020, concerned a September 27, 2019 incident during which Verne allegedly told a student that "[y]ou kids are disrespectful and your parents didn't raise you right." Defts. 56.1 Stmt. ¶ 104; Rosen Declaration, Exh. NN. The February 24, 2020 letter characterized Verne's comment as "verbal abuse" under school district policy. Rosen Declaration, Exh. NN.

Verne was ultimately charged twice under the provisions of New York Education Law sections 3020-a (disciplinary procedures) and 2590-j(7) (New York City-specific provisions). The first set of charges was initiated on February 4, 2020 and stemmed from Verne's alleged misconduct, insubordination, incompetence, and neglect of duty. Glass Declaration, Exh. 26. Katz was the signatory on this set of charges. Id. An attorney for the DOE had signed specifications about five days earlier that identified several of the infractions discussed above as partial bases for the charges. Defts. 56.1 Stmt. ¶ 101; Rosen Declaration, Exh. WW. On February 6, 2020, in light of these pending charges, Verne was reassigned from her classroom teaching duties to working in the library. Defts. 56.1 Stmt. ¶ 102; Verne Dep. Tr. at 117:15-18. As part of her library duties, Verne was assigned by Katz to draft short stories in Spanish to be used in the classrooms and to make school posters. Verne Dep. Tr. at 89:1-6, 118:9-14. Verne was charged again under New York Education Law sections 3020-a and 2590-j(7) on November 3, 2020 for misconduct, insubordination, incompetence, and neglect of duty, specifically stemming from the alleged verbal abuse incident on September 27, 2019. Glass Declaration, Exh. 27; Rosen Declaration, Exh. YY (specifications letter); see also Defts. 56.1 Stmt. ¶ 104; Rosen Declaration, Exh. NN. Katz testified that both sets of charges were dropped upon Verne's retirement in November 2021. Defts. 56.1 Stmt. ¶ 114; Glass Declaration, Exh. 9 ("Katz Dep. Tr.") at 190:8-9.

Also at issue in this case are two accommodation requests that Verne made while working at FDR High School: one for an assignment to an early session schedule for the fall 2019 semester and another for remote work in September 2021. As to the former, FDR High School has two school day sessions, split into early and late. Defts. 56.1 Stmt. ¶ 54. The early session typically ends between 2:00 p.m. and 3:00 p.m.; the later session runs until 4:00 p.m. or 4:30 p.m. Id. ¶ 55. Pursuant to a Collective Bargaining Agreement ("CBA") between the school district and the teacher's union, FDR High School teachers can fill out a program preference sheet at the end of each school year to indicate their preferred session for the upcoming fall semester. Id. When the school is unable to fully staff a session based on teacher preferences, teachers are then assigned by rotation to that session by reverse...