Opinion
CV 17-1 (GRB)(ST)
2020-02-06
Kathryn RADICE, Plaintiff, v. EASTPORT SOUTH MANOR CENTRAL SCHOOL DISTRICT, Linda Weiss, Assistant Superintendent, and William Madsen, Athletic Director, Defendants.
Vesselin Venelinov Mitev, John W. Ray, John Ray & Associates, Miller Place, NY, for Plaintiff. Adam I. Kleinberg, Chelsea Ella Weisbord, Sokoloff Stern LLP, Carle Place, NY, Gil Auslander, Borrelli & Associates, P.L.L.C., Garden City, NY, Melissa Holtzer-Jonas, Littler Mendelson, P.C., Merrick, NY, for Defendants.
Vesselin Venelinov Mitev, John W. Ray, John Ray & Associates, Miller Place, NY, for Plaintiff.
Adam I. Kleinberg, Chelsea Ella Weisbord, Sokoloff Stern LLP, Carle Place, NY, Gil Auslander, Borrelli & Associates, P.L.L.C., Garden City, NY, Melissa Holtzer-Jonas, Littler Mendelson, P.C., Merrick, NY, for Defendants.
MEMORANDUM & ORDER
GARY R. BROWN, United States District Judge:
Before the Court is a summary judgment motion by defendants Eastport South Manor Central School District ("District"), Assistant Superintendent Linda Weiss, and Athletic Director William Madsen. Docket Entry ("DE") 42. For the reasons stated herein, the summary judgment motion is GRANTED.
PROCEDURAL BACKGROUND
On January 3, 2017, plaintiff Kathryn Radice commenced this action by filing a complaint against the District, Mark A. Nocero, Linda Weiss, Joe Lopardo, Joseph Steimel, and William Madsen. Compl., DE 1. Plaintiff exhausted all administrative remedies before filing this case. Compl. ¶¶ 135-37. On April 17, 2017, all defendants filed a motion to dismiss. DE 11. By Order dated November 21, 2017, the Court dismissed all of plaintiff's claims with prejudice except the eighth cause of action—a "VIOLATION OF 42 USC Section 1983" based on a deprivation of the equal protection of the laws under the Fourteenth Amendment of the U.S. Constitution and Article I, Section 11 of the New York State Constitution —against the District, Nocero, Weiss, and Madsen. DE 18. On January 17, 2018, the Court dismissed the remaining claim against Nocero for failure to timely serve a summons and complaint under Federal Rule of Civil Procedure 4(m). DE 23. The case then proceeded to discovery, which closed on February 8, 2019. See Order dated Jan. 10, 2019. On May 20, 2019, the District, Madsen, and Weiss filed the instant motion for summary judgment. DE 42. The case was then transferred to the undersigned.
FACTUAL BACKGROUND
The following facts are undisputed or ineffectively disputed facts that are deemed admitted.
1. Background
In 1999, plaintiff, who identifies as a lesbian, was hired by Eastport High School to be the sole athletic trainer with an annual stipend of $18,000. Defs.' 56.1 Statement ¶¶ 11, 12, 246, DE 45; Pl.'s 56.1 Response ¶¶ 11, 12, 246, DE 46-1 (collectively "Pl.'s & Defs.' 56.1 Statements"). Plaintiff's responsibilities included the prevention of injuries and care of student athletes, post-injury care, rehabilitation, and counseling. Pl.'s & Defs.' 56.1 Statements ¶ 13.
The parties dispute whether the athletic trainer position can be fairly labeled "part-time" since, as plaintiff argues, plaintiff was the sole athletic trainer, and the distinction between full-time and part-time was created after the District hired a full-time athletic trainer. Pl.'s 56.1 Response ¶ 24.
In 2003, a merger involving Eastport High School was completed, creating the District. Id. at ¶¶ 7, 16. That same year, the District hired plaintiff as a full-time health teacher and the sole athletic trainer. Id. at ¶¶ 18-20. As a full-time health teacher, plaintiff's workday began at 7:10 am and ended at 2:15 pm based on a contract with the District. Id. at ¶ 162. Plaintiff's annual salary as a full-time health teacher is approximately $100,000. Id. at ¶ 168. Plaintiff also received an annual stipend in addition to her full-time health teacher salary. Id. at ¶ 21. In 2003, the annual stipend for the athletic trainer position was $22,000. Id.
In 2005, plaintiff's annual athletic trainer stipend increased to $30,000, and the stipend increased every year until 2014. Id. at ¶¶ 25-26. Plaintiff received tenure as a health teacher in 2006, and remained a full-time health teacher. Id. at ¶ 19.
2. Meeting with Madsen
In 2009, the District hired Madsen as the Director of Health, Physical Education and Athletics. Id. at ¶¶ 58, 59. Madsen is responsible for the District's athletic program, physical education, health programs, intramural programs, oversight of coaches and sports teams, and preparation of the athletic department's budget. Id. at ¶ 60. Madsen testified that he long had concerns about the District not having an athletic trainer present on weekends and school holidays, at away contests, and morning and afternoon pre-season football practices. Id. at ¶ 62.
At their first meeting, Madsen indicated that he wanted plaintiff to remain on the school premises for the conclusion of all practices and be present on weekends and holidays. Id. at ¶ 63. Plaintiff told Madsen that she was willing to attend away games if the District paid her more. Id. at ¶ 65. Plaintiff objected to performing additional duties because it left "the door open for [her] to work an exorbitant amount of hours without compensation." Id. at ¶ 66. Madsen stated to plaintiff that, in his view, she made too much money. Id. at ¶¶ 67, 68. Madsen did not refer to plaintiff's gender or sexual orientation during the discussion. Id. at ¶ 69.
In September 2010, Madsen discovered plaintiff's sexual orientation in an email where plaintiff mentioned her wife. Id. at ¶ 247. Madsen never commented on plaintiff's sexual orientation. Id. at ¶¶ 249, 253. Plaintiff notes that "Madsen made general insensitive comments about sexual orientation," such as when Madsen referenced "husband and wives, moms and dads as opposed to significant others or parents or guardians." Pl.'s 56.1 Response ¶ 249 (citing Defs.' Ex. G at 37:2-3). Before filing a notice of claim with the District on October 28, 2014, plaintiff never reported or complained about any offensive comments about her sexual orientation to the District's administration. Id. at ¶ 254. Plaintiff states her failure to report was due to a fear of retaliation. Pl.'s 56.1 Response ¶ 254. 3. Evolution of the Athletic Trainer Position
From 2007 onward, the number of teams and student athletes in the District grew "dramatically." Pl.'s & Defs.' 56.1 Statements ¶ 54. In 2009, the District increased the hours available for sports practices and events by adding lights to the fields, and allowing games to start at 7:00 pm and end as late as 10:00 pm. Id. at ¶ 70. Plaintiff's athletic trainer obligations grew because she had to treat more athletes. Id. at ¶ 44.
In 2009, Madsen spoke with plaintiff and a union representative about plaintiff accompanying the football team on away games. Id. at ¶ 71. Plaintiff was willing to provide pre-season training and for away games provided the District increased her compensation and provided "appropriate notice." Id. at ¶ 72. Madsen felt that plaintiff should have been present more often as sometimes there would be night or weekend practices without coverage. Id. at ¶ 75.
4. Leave and Return to Athletic Trainer Position
From 2003 to 2010, plaintiff held the full-time health teacher position and the sole athletic trainer position. Id. at ¶ 22. In 2010, plaintiff remained a full-time health teacher, but did not apply for reappointment to athletic trainer position because plaintiff took time off to care for her newly born son. Id. at ¶ 76. From 2010 to fall 2011, the District hired a female athletic trainer, Martina Luce. Id. at ¶¶ 77-80. The record contains no reference concerning the sexual orientation of Luce. Id. at ¶ 78. In fall 2011, Luce took a position in another school district, and Madsen asked plaintiff if she was interested in returning. Id. at ¶ 80.
In fall 2012, Madsen discussed with plaintiff about his work expectations and his concerns about plaintiff's availability as an athletic trainer. Id. at ¶ 81. Madsen believed the District needed an athletic trainer present for all varsity and junior varsity practices. Id. at ¶ 84. Plaintiff recognized that there was an increased number of hours required to be an athletic trainer, but she was only willing to continue to perform if she were compensated for the extra time. Id. at ¶ 87. Plaintiff resumed the role of the sole athletic trainer in winter 2012. Id. at ¶ 81.
5. Concerns
Plaintiff reported to the District that the athletic director position demanded substantially more time than when she was first hired. Id. at ¶ 88. By 2012, plaintiff's hours and workload as an athletic director had increased significantly. Id. at ¶ 89. Madsen became increasingly concerned about whether plaintiff can meet the requirements of athletic director. Id. at ¶ 90. There were times where plaintiff was not present when an athlete was injured in a field. Id. at ¶ 96. When plaintiff was not present, coaches would apply basic first aid, contact parents, and call an ambulance, as appropriate. Id. at ¶ 97. Plaintiff asserts that plaintiff and Madsen were in negotiations about whether the District can offer additional compensation for the increased workload, but the parties agreed that plaintiff would take additional time off rather than receive additional compensation. Pl.'s 56.1 Response ¶ 90. Nonetheless, the District was satisfied with plaintiff's overall performance when she was present as an athletic trainer. Pl.'s & Defs.' 56.1 Statements ¶ 106. Madsen expressed many positive views about plaintiff's performance as the athletic director. Id. at ¶ 107. For example, Madsen stated that plaintiff was "very good at her job as athletic trainer." Id. at ¶ 108.
6. District's Creation of a Full-Time Athletic Trainer Position
In fall 2013, Madsen and Nocero discussed "serious concerns" relating to the athletic program. Id. at ¶ 110. These concerns include an absence of an athletic trainer on weekends, vacations, and evenings to cover varsity contact sports. Id. at ¶ 111. This was the first time Madsen brought to Nocero's attention the "progressive and gradual kind of problem" caused by the increased number of teams and athletes. Id. at ¶ 112. Madsen told Nocero that "since the program had grown, a part-time trainer wasn't able to meet all of the kids' needs." Id. at ¶ 113. Plaintiff argues that those concerns were never raised with the plaintiff or plaintiff's union. Pl.'s 56.1 Response ¶¶ 110-13.
Madsen never expressed dissatisfaction with plaintiff's capabilities during his conversations with Nocero. Id. at ¶ 114. Madsen told Nocero that it was difficult covering everything with just a "part-time athletic trainer." Id. at ¶ 115. Madsen believed the District needed a full-time athletic trainer to provide coverage earlier and later in the day, on weekends, and on vacations. Id. at ¶ 116.
According to defendants, Nocero testified that Madsen and Nocero had several conversations about creating a full-time athletic trainer position. Defs.' 56.1 Statement ¶ 117. Madsen testified that a full-time athletic trainer would be in a better position than plaintiff to call doctors and parents, meet with athletes with an early dismissal, and help students as needed. Id. at ¶ 118 (citing Defs.' Ex. J at 419). Plaintiff does not dispute that the conversations took place, but only that Nocero could not recall when the conversations took place. Pl.'s 56.1 Response ¶¶ 117-18; see also Defs.' Ex. J at 370-71.
The parties dispute whether during these conversations Nocero and Madsen discussed that the full-time athletic trainer would start at 1:00 pm and end at 8:00 pm. Pl.'s & Defs.' 56.1 Statements ¶¶ 117-19. According to defendants, Nocero testified that he and Madsen had many conversations regarding the start and end times of the full-time athletic trainer position. Defs.' 56.1 Statement ¶ 117. Plaintiff counters that Madsen testified that Nocero thought of the 1:00 pm start time, Pl.'s 56.1 Response ¶¶ 117-18 (citing Defs.' Ex. F at 46:11-15), that no hours were listed on the job posting for the full-time or part-time athletic trainer position, id. at ¶ 119 (citing Ex. F. 14:8-9), and that Madsen testified that he never told prospective candidates about the hourly requirements, id. (citing Defs.' Ex. F at 47:5-10).
In December 2013, Madsen submitted a departmental budget proposal, which included a request of $75,000 for a full-time athletic trainer. Pl.'s & Defs.' 56.1 Statements ¶¶ 120-26. This figure is derived from first-year teacher's salary of $52,000 plus benefits. Id.
In January 2014, after submitting the proposed budget for the 2014-15 school year, Madsen again expressed concerns to Nocero that the District's structure for the athletic trainer position was not providing enough coverage for student athletes. Id. at ¶ 129. Plaintiff counters that no one from the District ever spoke with plaintiff about gaps in coverage as to the athletic trainer position. Pl.'s 56.1 Response ¶ 129.
Weiss is the District's Assistant Superintendent of Personnel. Pl.'s & Defs.' 56.1 Statements ¶ 128. On February 14, 2014, Weiss requested that plaintiff draft a memorandum discussing the District's athletic department's expansion, the role she plays as an athletic director, and the additional responsibilities placed on her position over the years. Id. at ¶ 130. Plaintiff wrote the memorandum, detailing how her job responsibilities expanded since fall 2012 because of the number of sports offered, and the increase in student athletes. Id. at ¶¶ 131-35. Weiss concluded from plaintiff's memorandum that the athletic trainer job had become too much for one part-time position. Id. at ¶ 136.
In February 2014, Nocero submitted a budget proposal to the District Board of Education, which included a $75,000 line item to hire a full-time athletic trainer. Pl.'s & Defs.' 56.1 Statements ¶ 137. The District Board of Education agreed to the budget line item for a fulltime athletic trainer. Id. at ¶ 138. The budget did not include a part-time athletic trainer position. Id. at ¶ 141. The District Board of Education thought highly of plaintiff's performance and asked Nocero in March or April 2014 to explore the feasibility of including a part-time athletic trainer position in the 2014-15 budget. Id. at ¶ 142. Nocero included both the full-time and part-time athletic trainer in the 2014-15 budget approved by the District Board of Education. Id. at ¶ 143. Plaintiff was receiving $43,361 for her athletic trainer position when the full-time athletic trainer position was created in 2014. Id. at ¶ 145.
7. Plaintiff's Application to the Full-Time Athletic Trainer Position
The District had a collective bargaining agreement with the Eastport-South Manor Teachers Association ("the Union"). Id. at ¶ 33. In March 2014, Nocero and Weiss advised leaders of the Union that the District will create a full-time athletic trainer position for the 2014-15 school year because of a significant increase in the number of teams and students in the athletic program. Id. at ¶¶ 146-47.
In April 1, 2014, plaintiff knew the District sought to create a full-time athletic trainer position. Id. at ¶ 149. On April 11, 2014, the District posted an announcement of vacancy for the full-time athletic trainer position on the National Athletic Trainers Association's website, and sent an email to all staff. Id. at ¶¶ 150-54. The announcement of vacancy did not specify the hours or salary for the full-time athletic trainer position. Id. at ¶ 152.
On April 24, 2014, plaintiff applied for the full-time athletic trainer position. Id. at ¶ 158. Plaintiff emailed Madsen and Weiss to inquire whether she could work as both a full-time teacher and a full-time athletic trainer. Id. at ¶ 163. Madsen and Weiss did not believe that one person could effectively hold both full-time positions. Id. at ¶ 165.
On June 11, 2014, Madsen and Weiss told plaintiff she could not work as both a full-time health teacher and a full-time athletic trainer. Id. at ¶ 166. Plaintiff kept her full-time health teacher position, and withdrew her application from the full-time athletic trainer position. Id. at ¶ 167.
Madsen invited plaintiff to be a part of the interview committee for the full-time athletic trainer position. Id. at ¶ 169. Plaintiff declined to join the interview committee. Id. at ¶ 171. The District reviewed fifty applications for the full-time athletic trainer position, and held three rounds of interviews. Id. at ¶ 172.
In summer 2014, the District hired Jason Long for the full-time athletic director for 2014-15 school year. Id. at ¶ 173; see also Defs.' Ex. G at 34-35. Long is male, but the record is devoid of information concerning his sexual orientation. See generally Pl.'s & Defs.' 56.1 Statements. Long's salary was approximately $57,000. Pl.'s & Defs.' 56.1 Statements ¶ 174. Plaintiff was receiving $43,361 as an annual stipend for her athletic trainer position when the full-time position was created in 2014. Id. at ¶¶ 145, 175. Long held no other position at the District. Id. at ¶ 176.
8. Arbitration
On May 16, 2014, Weiss advised the Union that the District needed a full-time athletic trainer. Id. at ¶¶ 177-78. On May 28, 2014, the Union filed a grievance about the full-time athletic trainer position, contending that the District improperly changed the athletic trainer position and no longer wanted plaintiff's services, and the District "reconfigured" the athletic trainer position because plaintiff filed a grievance about her compensation for working a wrestling tournament. Id. at ¶¶ 179-80. The matter went to arbitration. Id. at ¶ 181.
The arbitrator found that the district did not violate the collective bargaining agreement. Id. at ¶¶ 182, 183. The arbitrator also found that the District did not engage in any discriminatory action when it posted the full-time athletic trainer position. Id. at ¶¶ 182, 194-95. According to the plaintiff, the question before the arbitrator was whether the collective bargaining agreement was violated, not employment discrimination. Pl.'s 56.1 Response ¶ 182.
Before arbitration, plaintiff also settled her grievance regarding the wrestling tournament in April 2014 for $498. Pl.'s & Defs.' 56.1 Statements ¶ 192. There was no appeal of the arbitrator's decision. Id. at ¶ 196.
9. Posting of the Part-Time Athletic Trainer Position
On July 3, 2014, the District posted a vacancy notice for a part-time athletic trainer position for compensation of $38.00 per hour. Id. at ¶¶ 197-98. Plaintiff was unhappy about the $38.00 per hour compensation, and she wanted to be paid closer to $60.00 per hour. Id. at ¶¶ 229-30. There was no committee to interview prospective candidates for this position. Id. at ¶ 199. On July 15, 2014, plaintiff applied for the position, and the District offered plaintiff this position on September 3, 2014. Id. at ¶ 200. There were no other part-time athletic trainer positions. Id. at ¶ 201. Plaintiff received $3,040.00 for the part-time athletic trainer position. Pl.'s Br. 1, DE 46.
Plaintiff and Long had a good work relationship. Id. at ¶ 204. Long began his duties at 1:00pm, and stayed until the conclusion of all games/practices. Id. at ¶ 205. Long would also stay until 8:00 pm or 8:30 pm even if there were no night games. Id. at ¶ 206.
Plaintiff requested that Madsen email coaches and students that plaintiff could no longer consult, evaluate, and treat athletes outside her scheduled hours of 2:30 pm to 5:30 pm. Pl.'s & Defs.' 56.1 Statements ¶ 207. Plaintiff testified that she did this because she "was not an hourly employee, that [she] was not protected to do that type of work anymore." Pl.'s 56.1 Response ¶ 207. Plaintiff never worked past 5:30pm. Pl.'s & Defs.' 56.1 Statements ¶¶ 211-15.
Plaintiff worked more during fall and spring sport seasons and worked fewer hours in the winter season. Id. at ¶¶ 216-19. Plaintiff testified, "I exercised my rights to speak up for being sexually assaulted, and filing a harassment claim, and within a short amount of time after that, what was previously scheduled and consisted of 180 days, three hours a day, was truncated to what ended up being a total of approximately 80 hours when the year was done." Pl.'s 56.1 Response ¶ 219.
Once a week plaintiff began her part-time athletic trainer duties one hour later because she offered extra help sessions for her health class. Pl.'s & Defs.' 56.1 Statements ¶¶ 220-21. Before the creation of the full-time athletic trainer position, plaintiff held her extra help sessions for the health class at the same time she performed her athletic trainer duties. Id. at ¶ 222.
The District has two golf carts. Id. at ¶ 223. According to Madsen's testimony, the two golf carts were shared, and not "dedicated, per se, to one person." Defs.' 56.1 Statement ¶ 223 (citing Defs.' Ex. F at 60-61; Defs.' Ex. G at 120). Plaintiff testified that when she was the sole athletic trainer, she had a golf cart, and Madsen had the other golf cart. Pl.'s 56.1 Response ¶ 223 (citing Defs.' Ex. G at 121:12-13).
According to defendants, after Long was hired, plaintiff only had access to one golf cart because the other golf cart was not working. Defs.' 56.1 Statement ¶ 224. According to plaintiff, she was deprived of both golf carts after Long was hired. Pl.'s 56.1 Response ¶ 224. The golf cart was used to transport medical supplies. Pl.'s & Defs.' 56.1 Statements ¶ 225. If an emergency occurred, which plaintiff estimated happened between six to twelve times, plaintiff would call Long who would arrive with a golf cart to transfer an injured student. Id. at ¶ 228.
10. Joe Lopardo
Joe Lopardo is a custodian at the District, and a former defendant in this case. Id. at ¶ 255. In September 2014, plaintiff made a formal complaint to Weiss that Lopardo, inter alia , kissed plaintiff on the cheek, grabbed plaintiff's buttocks and attempted to digitally penetrate plaintiff's anus through her clothing without her consent. Id. at ¶ 256. Weiss investigated plaintiff's complaint about Lopardo. Id. at ¶ 257.
Weiss met with Lopardo. Id. at ¶ 259-64. Lopardo denied any sexual contact with the plaintiff, and stated that he hugged plaintiff. Id. at ¶ 259. The following exchange occurred during the deposition of Weiss:
Q Did you ever make any reference of Mr. Lopardo's limitations of intellectual capacity, at any time?
A Yes
Q What are his limitations, if any?
A He was trying to explain that he would never approach anyone, that he knew that Ms. Radice was with someone, had a partner, was married. I'm not sure exactly what words he used, but he made the comment of, "And I know she likes the same." And I said - - I explained that to her, and that to me, was part of him being very limited, that he wasn't able to explain what he meant.
Q Was it your understanding of the comment, "I know she likes the same" a reference to Ms. Radice's sexual preference?
A I believe so, yes.
Defs.' Ex. E at 50:14-51:6; see also Pl.'s & Defs.' 56.1 Statements ¶ 260. Weiss told Lopardo to stay away from plaintiff, not to hug anyone in the workplace, and if another custodian besides Lopardo should respond if plaintiff needed anything. Id. at ¶¶ 261, 263, 264. Lopardo agreed to comply. Id. at ¶ 262.
Weiss also met with the plaintiff. Id. at ¶ 265-68. During the meeting, Weiss stated that Lopardo must have been aware of plaintiff's sexual orientation because "he knew that I liked the same," which plaintiff found offensive. Id. at ¶ 265; Defs.' Ex. D at 72:11-22. Weiss had also discussed examples of how actions of heterosexual romantic couples could be misconstrued in the work environment, which plaintiff also found offensive. Pl.'s & Defs.' 56.1 Statements ¶¶ 267-68. There were no allegations that Lopardo acted inappropriately with anyone after the September 2014 complaint. Id. at ¶ 271. Plaintiff complained to Weiss in March 2015 that she continued to fear Lopardo. Id.
11. The 2015-16 School Year
In June 2015, the District re-posted a vacancy for a part-time athletic trainer position for $38 per hour for the 2015-16 school year. Id. at ¶ 231. Plaintiff sent an email expressing interest, but did not apply for the position. Id. at ¶¶ 232-33. On August 28, 2015, Weiss emailed plaintiff to inquire as to her interest. Id. at ¶ 234. The Union had negotiations with the District regarding the terms and conditions of the position. Id. at ¶ 235. On September 11, 2015, plaintiff emailed Weiss and Madsen inquiring about the stipend and the schedule. Id. at ¶ 237. On September 15, 2015, Weiss provided the Union a response that did not include the exact number of hours because the schedule for the modified, junior varsity, and varsity athletes have not been released yet. Id. at ¶ 240. Weiss provided plaintiff a projection of the schedule for the school year. Id. at ¶ 241. Weiss also advised plaintiff that the stipend would remain $38 per hour while negotiations with the Union were ongoing. Id. at ¶ 242.
On September 20, 2015, plaintiff emailed Weiss to decline the part-time athletic trainer position for the 2015-16 school year. Id. at ¶ 243. Long served as the District's sole athletic trainer for 2015-16 school year. Id. at ¶ 244.
LEGAL STANDARD
1. Rule 56.1 Statements
The Court has previously held,
To oppose a motion for summary judgment, a party is required by the Court's Local Rules to submit a Statement of Material Facts upon which it contends there "exists a genuine issue to be tried" and as to "each statement controverting any statement of material fact ... must be followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c)." L. Civ. R. 56(d). A party may not rest on a mere denial without citing supporting admissible evidence. "Merely denying certain statements in the moving party's statement of undisputed material facts without stating the factual basis for such denial and without disclosing where in the record is the evidence relied upon in making such denial does not constitute a ‘separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried’—as is required to controvert the moving party's statement of undisputed material facts." Upon the failure to properly controvert a movant's statement of material fact, such statement "will be deemed admitted for the purposes of the motion."
Alterseekers, Inc. v. BrandForce SF, LLC , No. CV 12-5392 (GRB), 2016 WL 8254789, at *5 (E.D.N.Y. Aug. 23, 2016) (collecting cases).
Here, plaintiff has failed to effectively controvert, either by failing to cite evidence or interposing an improper objection, the following paragraphs of defendants' 56.1 statement: 75, 87, 90, 96, 110-13, 115-16, 117-18, 205-06. Any objections set forth in plaintiff's responses to those paragraphs are overruled.
2. Summary Judgment Standard
This motion for summary judgment is decided under the oft-repeated and well-understood standard for review for these matters, as discussed in Bartels v. Inc. Vill. of Lloyd Harbor , 97 F. Supp. 3d 198, 211 (E.D.N.Y. 2015), aff'd , 643 F. App'x 54 (2d Cir. 2016), which discussion is incorporated by reference herein.
DISCUSSION
1. Claims under the New York State Constitution
Under the eighth cause of action, plaintiff seeks recovery for a "VIOLATION OF 42 USC Section 1983" based on a deprivation of the equal protection of the laws under the Fourteenth Amendment of the U.S. Constitution and Article I, Section 11 of the New York State Constitution. See Compl. ¶¶ 130-34, DE 1.
Plaintiff cannot recover under the New York State Constitution. First, plaintiff cannot use § 1983 to recover under a state constitution because " § 1983 merely provides a mechanism for enforcing individual rights ‘secured’ elsewhere, i.e., rights independently ‘secured by the Constitution and laws’ of the United States.’ " Gonzaga Univ. v. Doe , 536 U.S. 273, 285, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (citation omitted); Sutter v. Dibello , No. CV 18-817 (ADS)(AKT), 2019 WL 4195303, at *18 (E.D.N.Y. Aug. 12, 2019), report and recommendation adopted , 2019 WL 4193431 (E.D.N.Y. Sept. 4, 2019) ; see also Ascent: a Sch. for Individuals With Autism v. New York State Educ. Dep't , No. CV 17-6866 (JS)(ARL), 2019 WL 2439431, at *10 (E.D.N.Y. Mar. 4, 2019), report and recommendation adopted , 2019 WL 1466901 (E.D.N.Y. Mar. 31, 2019). Second, "[n]o explicit constitutional or statutory authority sanctions a private right of action for violations of the New York State Constitution," and "no implied right of action exists ‘for violations of the New York State Constitution where the plaintiff has an alternative remedy under § 1983 for violations of parallel provisions of the U.S. Constitution." Sutter , 2019 WL 4195303, at *9-10 (collecting cases).
Therefore, what remains of the eighth cause of action is a potential recovery under § 1983 for a deprivation of the equal protection of the laws under the Fourteenth Amendment of the U.S. Constitution against the District, Madsen, and Weiss.
2. Section 1983
The complaint is silent as to whether plaintiff is proceeding under employment discrimination, retaliation or both. See generally Am. Compl. ¶¶ 130-34. Plaintiff argues in her brief that defendants engaged in employment discrimination and retaliation. See generally Pl.'s Br. 1-8; 11, 16. The Court construes the eighth cause of action as asserting claims of both employment discrimination and retaliation. Cf. Edwards v. Khalil , No. 12-CV-8442 (JCM), 2016 WL 1312149, at *28 (S.D.N.Y. Mar. 31, 2016).
A plaintiff who claims sex discrimination and retaliation in public employment in violation of the Fourteenth Amendment may bring suit pursuant to § 1983. See Naumovski v. Norris , 934 F.3d 200, 212 (2d Cir. 2019) ; Vega v. Hempstead Union Free Sch. Dist. , 801 F.3d 72, 81 (2d Cir. 2015). For sex discrimination, plaintiff only alleges a disparate treatment claim, to wit, that plaintiff "suffered an ‘adverse employment action’ taken ‘because of’ her sex.’ " Naumovski , 934 F.3d at 212 ; Pl.'s Br. 1-17.
Disparate treatment and retaliation pursuant to § 1983 are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Raspardo v. Carlone , 770 F.3d 97, 125 (2d Cir. 2014) ; Kirkland v. Cablevision Sys. , 760 F.3d 223, 225 (2d Cir. 2014) ; see also Cusher v. Mallick , No. 16-CV-1273 (BKS) (DJS), 2020 WL 109510, at *33 (N.D.N.Y. Jan. 9, 2020) (quoting Vega , 801 F.3d at 81 ) ("[T]he elements of a retaliation claim based on an equal protection violation under § 1983 mirror those under Title VII").
As to the first step of the disparate treatment theory, "[t]he plaintiff must first establish a prima facie case by showing that: ‘(1) she is a member of a protected class; (2) her job performance was satisfactory; (3) she suffered adverse employment action; and (4) the action occurred under conditions giving rise to an inference of discrimination.’ " Raspardo , 770 F.3d at 125. As to the first step of retaliation, plaintiff must establish that (1) she engaged in protected activity, (2) defendant was aware of that activity, (3) defendant took adverse employment action against plaintiff, and (4) there is a causal connection between the protected activity and the adverse employment action. Cusher , 2020 WL 109510, at *19 (citing Summa v. Hofstra Univ. , 708 F.3d 115, 125 (2d Cir. 2013) ); see also Kirkland , 760 F.3d at 225.
After the first step, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the action. Raspardo , 770 F.3d at 125 ; Kirkland , 760 F.3d at 225.
Once defendant makes such a showing, the burden shifts back to the plaintiff to prove that the employer's proffered reason is pretextual. Raspardo , 770 F.3d at 125 ; Kwan v. Andalex Grp. LLC , 737 F.3d 834, 845 (2d Cir. 2013). At this stage, plaintiff advancing under the theories of § 1983 sex discrimination and § 1983 retaliation must show that the defendant's discriminatory intent was a "but-for" cause of the adverse employment action. Naumovski , 934 F.3d at 214 ; Kwan , 737 F.3d at 845 ; Vega , 801 F.3d at 91. For § 1983 sex discrimination, this means that "a plaintiff must establish that the employer's stated reason would not, alone, constitute a sufficient basis for pursing an adverse action." Naumovski , 934 F.3d at 215. For § 1983 retaliation, this means, " ‘but-for’ causation does not require proof that retaliation was the only cause of the employer's action, but only that the adverse action would not have occurred in the absence of the retaliatory motive." Kwan , 737 F.3d at 846.
3. Sexual Orientation Discrimination
Plaintiff cannot recover under the theory of § 1983 sexual orientation discrimination. The Second Circuit has recently held, "neither [the Second Circuit] nor the Supreme Court has recognized § 1983 claims for sexual orientation discrimination in public employment." Naumovski , 934 F.3d at 219. Assuming arguendo that such a claims can be brought, plaintiff cannot succeed in her claim because plaintiff established nothing more than "stray remarks," which do not constitute sufficient evidence of sexual orientation discrimination. Cf. Naumovski , 934 F.3d at 216 ; Rodriquez-Coss v. Sessions , No. 16-CV-633 (VLB), 2018 WL 3213290, at *15 (D. Conn. June 29, 2018).
Qualified immunity would also bar § 1983 sexual orientation claims against defendants Weiss and Madsen. A government official is entitled to qualified immunity where her conduct (1) did not violate clearly established law," or (2) "it was objectively reasonable for [the official] to believe that his action did not violate such law." Naumovski , 934 F.3d at 210 ; see also Raspardo , 770 F.3d at 113 (courts may answer the questions in "either order, and if it determines that one prong is not satisfied, it need not reach the other"). First, Zarda v. Altitude Express, Inc. , 883 F.3d 100, 107 (2d Cir. 2018) is only clearly established law for Title VII sexual orientation discrimination claims, and not for § 1983 sexual orientation claims. Naumovski , 934 F.3d at 219. Second, assuming Zarda creates clearly established law for § 1983 sexual orientation claims, the conduct at issue occurred in 2014, which pre-dated the Zarda decision. Id.
4. Sex Discrimination
Plaintiff's § 1983 sex discrimination claim also cannot survive summary judgment.
As to the first step of the disparate treatment theory, "[t]he plaintiff must first establish a prima facie case by showing that: ‘(1) she is a member of a protected class; (2) her job performance was satisfactory; (3) she suffered adverse employment action; and (4) the action occurred under conditions giving rise to an inference of discrimination.’ " Raspardo , 770 F.3d at 125.
First, plaintiff belongs to a protected class based on her sex. Naumovski , 934 F.3d at 212. Second, plaintiff's job performance was satisfactory. See Pl.'s & Defs.' 56.1 Statements ¶¶ 106-08.
Third, plaintiff suffered adverse employment actions. "An adverse employment action is ‘a materially adverse change in the terms and conditions of employment.’ " Clay v. Cty. of Suffolk , 404 F.Supp.3d 737, 755 (E.D.N.Y. 2019) (citation omitted). "An adverse employment action ‘must be more disruptive than a mere inconvenience or an alteration of job responsibilities and might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices [ ] unique to a particular situation." Id. (citing Fox v. Costco Wholesale Corp. , 918 F.3d 65, 71-72 (2d Cir. 2019) ). Here, a reasonable jury can conclude that plaintiff suffered adverse employment actions. First, plaintiff suffered a decrease in pay. In 2014, when the full-time athletic trainer position was created, plaintiff was earning $43,361 for her athletic trainer position, in addition to the $100,000 salary she was receiving as a full-time health teacher. Pl.'s & Defs' 56.1 Statements ¶¶ 145, 168, 175. When plaintiff accepted the part-time athletic trainer position, plaintiff received $38.00 per hour. Id. at ¶¶ 197-98. Plaintiff argues that she only receives $3,040.00 in the part-time athletic trainer position. Pl.'s Br. 1. Second, plaintiff was formerly the sole athletic trainer, and then received the less distinguished title of part-time athletic trainer. See Pl.'s & Defs.' 56.1 Statement ¶ 200.
Both the arbitrator who handled the Union's grievance, Defs.' Ex. Q at 19, DE 43-17, and Judge Feuerstein on a motion to dismiss, DE 18 at 35, found that plaintiff had not suffered an adverse employment action. While plaintiff is arguably bound by these determinations, we are now faced with a more developed factual record. Thus, out of an abundance of caution, the Court will assume that plaintiff satisfies this element.
Lastly, plaintiff has demonstrated an inference of discrimination. At the summary judgment stage, courts have held that an inference of discrimination arises when an employer replaces a terminated or demoted employee with an individual outside the employee's protected class. Clay , 404 F.Supp.3d at 757-58 (citing Vill. of Freeport v. Barrella , 814 F.3d 594, 601 n.9 (2d Cir. 2016) (citing the holding in the context of § 1983 gender discrimination, but finding, there, "both male and females are treated similarly"); see generally Borzon v. Green , No. 16-CV-7385 (VEC), 2018 WL 3212419, at *9 (E.D.N.Y. June 29, 2018) (applying in the context of Title VII racial discrimination); see also Monger v. Connecticut Dep't of Transportation , No. 17-CV-205 (JCH), 2019 WL 399908, at *10 (D. Conn. Jan. 31, 2019) (same).
Here, an inference of sex discrimination can be drawn because the defendants hired a male in the full-time athletic trainer position. See Pl.'s Br. 8, 12. Defendants Madsen and Weiss told plaintiff she could not work as both a full-time health teacher and a full-time athletic trainer. Pl.'s & Defs.' 56.1 Statements ¶ 166. As a result, plaintiff withdrew her application from the full-time athletic trainer position. Id. at ¶ 167.
At the second step, defendants argue that they could not offer plaintiff the full-time athletic trainer position "given the growth of the athletic program—and the increase in the number of student athletes—a ‘part-time athletic trainer (regardless of gender or sexual orientation) could no longer meet the needs of the District's student athletes." Defs.' Br. 13, DE 44; see also Defs.' Reply Br. 8, DE 47; Pl.'s & Defs.' 56.1 Statements ¶¶ 110-13; 117-18. Such an explanation meets the burden at the second stage as it would connote lawful reason for taking the adverse employment actions. See McEvoy v. Fairfield Univ. , No. 17-CV-1861 (MPS), 2019 WL 5579375, at *8 (D. Conn. Oct. 29, 2019).
At the third stage, "a plaintiff must establish that the employer's stated reason would not, alone, constitute a sufficient basis for pursing an adverse action." Naumovski , 934 F.3d at 215. "In other words, a § 1983 plaintiff must establish that the employer's stated non-discriminatory reason is either false or inadequate to support the adverse employment action." Id. at 215 ; see also id. at 217 ("[plaintiff] must establish that a reasonable jury could find that Defendants would not have terminated her based on their stated reasons alone.").
Here, taking the evidence in the light most favorable to the plaintiff, plaintiff cannot establish that the District's stated non-discriminatory reason was either false or inadequate to support the adverse employment action. It is undisputed that from 2007 onward, the number of teams and student athletes in the District grew "dramatically." Pl.'s 56.1 Statements ¶ 54. The District added lights to fields and allowed games to start as late as 7:00 pm and end at 10:00 pm. Id. at ¶ 70. Plaintiff's responsibilities grew as well because she had to treat more athletes. Id. at ¶ 44.
Defendants were concerned about the ability for the athletic trainer to cover nights and weekend practices and it is undisputed that plaintiff was not available as an athletic trainer during those times. Id. at ¶¶ 75, 90, 96, 97, 110. There were times where plaintiff was not present when a student athlete was injured. Id. at ¶¶ 96-97. Madsen approached Nocero about this "progressive and gradual kind of problem." Id. at ¶¶ 110-113. In conversations between Madsen and Nocero, they decided to create the full-time athletic trainer position. Id. at ¶¶ 117-18. In December 2013, Madsen submitted a department budget proposal, which included a $75,000 request for a full-time athletic trainer. Id. at ¶¶ 120-26.
Moreover, plaintiff refused to perform the duties of an athletic trainer without additional compensation. In 2009, Madsen spoke with plaintiff and a union representative about plaintiff accompanying the football team on away games. Id. at ¶¶ 71-72. Plaintiff would only agree to do so if she was given increased compensation and was given appropriate notice. Id. In fall 2012, Madsen yet again approached plaintiff about her availability for student athletes. Id. at ¶ 81. Plaintiff recognized the increased hours, but expressed again that she was only willing to perform if she were compensated. Id. at ¶ 87. In continued negotiations, plaintiff chose additional time off rather than additional compensation from the District. Pl.'s 56.1 Response ¶ 90. In other words, plaintiff cannot establish that a reasonable jury could find that Defendants would not have taken the adverse employment action based on their stated reasons alone. Naumovski , 934 F.3d at 217.
In sum, defendants have succeeded in articulating a legitimate, non-discriminatory reason for plaintiff's adverse employment action, and plaintiff cannot establish that defendants' stated non-discriminatory reason is either false or inadequate to support the adverse employment action. Therefore, summary judgment must be granted as to § 1983 sex discrimination.
5. Retaliation
Plaintiff argues that defendants retaliated against her by reducing her hours as a part-time athletic trainer after she had complained that Joe Lopardo had sexually assaulted her. Pl.'s Br. 11. Defendants argue that "the District's decisions to create the full-time athletic trainer position, hire Long as the full-time trainer, and appoint Plaintiff to the part-time athletic trainer position precede this complaint and thus cannot give rise to a retaliation claim." Defs.' Reply Br. 11.
The analysis of retaliation under § 1983 and Title VII are the same. Cusher , 2020 WL 109510, at *33. As to the first step of retaliation, plaintiff must establish that (1) she engaged in protected activity, (2) defendant was aware of that activity, (3) defendant took adverse employment action against plaintiff, and (4) there is a causal connection between the protected activity and the adverse employment action. Cusher , 2020 WL 109510, at *19 ; see also Kirkland , 760 F.3d at 225.
Plaintiff satisfies the first three prongs. First, plaintiff's complaint to Weiss about Lopardo's actions to her constituted protected activity because internal sexual harassment complaints are protected activities. See Bispham v. Hartford Hosp. , No. 14-CV-1126 (VAB), 2016 WL 5348566, at *11 (D. Conn. Sept. 23, 2016) (citing Kotcher v. Rosa & Sullivan Appliance Ctr., Inc. , 957 F.2d 59, 65 (2d Cir. 1992) ). Second, because the complaint was made to Weiss, an Assistant Superintendent of the District, the District is aware of the activity. See Summa v. Hofstra Univ. , 708 F.3d 115, 125-26 (2d Cir. 2013) (holding that the awareness of several Hofstra University officials sufficient to constitute the "general corporate knowledge" under this prong).
Judge Feuerstein held that plaintiff failed to plead protected activity in the complaint, DE 18 at 22. However, because we are faced with a more factual record and out of an abundance of caution, the Court will assume that plaintiff also satisfies this element.
Third, the reduction of hours from 180 to 80 hours of work time constitutes an adverse employment action. Pl.'s & Defs.' 56.1 Statements ¶¶ 216-19. An adverse employment action in this context means an action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Clay , 404 F. Supp. 3d at 760 (citing Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ). "[A]lleged acts of retaliation must be evaluated both separately and in the aggregate, as even trivial acts may take on a greater significance when they are viewed as part of a larger course of conduct." Id. (citing Rivera v. Rochester Genesee Reg'l Transp. Auth. , 743 F.3d 11, 25 (2d Cir. 2014) ); see also Harris v. City of New York , No. 03-CV-6167 (DLC), 2004 WL 2943101, at *4 (S.D.N.Y. Dec. 21, 2004) ("Lesser actions such as ... a diminution in the complexity and prestige of work assignments, and transfers may also be considered adverse.").
However, defendants dispute the causal connection between the protected activity and adverse employment action. Defs.' Reply Br. 11. At best, plaintiff can only demonstrate a temporal proximity between the protected activity and the adverse employment action as plaintiff complained to Weiss in September 2014, and defendants reduced her hours in the winter season of 2014. However, the Second Circuit held that "[t]emporal proximity alone is insufficient to defeat summary judgment." Kwan , 737 F.3d at 847. And plaintiff can offer nothing else in support of her claim.
Plaintiff argues in her brief that the hours were reduced in the "entire 2015 winter season." Pl.'s Br. 11. However, plaintiff was not working as an athletic trainer as she declined the position on September 20, 2015. Pl.'s & Defs.' 56.1 Statement ¶ 243.
Furthermore, the adverse employment action in this context was set in motion by the District's decisions to create the full-time athletic trainer position, hire Long as the full-time trainer, and appoint Plaintiff to the part-time athletic trainer position, which preceded the complaint to Weiss, and thus, cannot give rise to a retaliation claim. "It is well-settled that an adverse employment action cannot serve as the basis for a retaliation claim if the action was set in motion before a plaintiff engaged in protected activity." Cayemittes v. City of New York Dep't of Hous. Pres. & Dev. , 974 F. Supp. 2d 240, 262 (S.D.N.Y. 2013), aff'd , 641 F. App'x 60 (2d Cir. 2016) (collecting cases). Courts have held that even where "an employer's conduct before and after an employee's complaint is consistent, the post-complaint conduct is not retaliatory." Id. (quoting Wright v. N.Y.C. Off-Track Betting Corp. , No. 05-CV-9790 (WHP), 2008 WL 762196, at *5 (S.D.N.Y. Mar. 24, 2008). Because plaintiff cannot establish causation, summary judgment must be granted as to § 1983 retaliation.
Having granted summary judgment as to every claim, the Court need not reach defendants' arguments as to qualified immunity and Monell . Defs.' Br. 23-25.
CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is GRANTED. The Clerk of the Court is directed to enter judgment and close the case.