Opinion
6:21-cv-1207 (TWD)
10-25-2024
JULIE A. UTTER, Plaintiff, v. CHERRY VALLEY-SPRINGFIELD CENTRAL SCHOOL DISTRICT, Defendant.
JULIE A. UTTER Plaintiff, pro se JOHNSON & LAWS, LLC GREGG TYLER JOHNSON, ESQ. Attorneys for Defendant
JULIE A. UTTER Plaintiff, pro se
JOHNSON & LAWS, LLC GREGG TYLER JOHNSON, ESQ. Attorneys for Defendant
MEMORANDUM-DECISION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff Julie A. Utter (“Plaintiff' or “Utter”) brings this action against Defendant Cherry Valley-Springfield Central School District (“Defendant”, “District”, or “CVSCSD”), asserting claims under the Americans with Disabilities Act (“ADA”) and the New York State Human Rights Law (“NYSHRL”). See Dkt. No. 1. Currently before the Court are the parties' crossmotions for summary judgment, Dkt. Nos. 57, 60, and Defendant's motion to strike, Dkt. No. 82. The parties have filed other submissions in opposition to and in further support of the pending motions, Dkt. Nos. 65, 77, 80, 85. For the following reasons, Plaintiff's motion for summary judgment is denied, Defendant's motion for summary judgment is granted, and Defendant's motion to strike is denied as moot.
The parties consented to the jurisdiction of a Magistrate Judge. See Dkt. No. 19.
The facts have been drawn from Plaintiff's verified complaint, Dkt. No. 1, Defendant's statement of material facts, Dkt. No. 57-26, Plaintiff's response and counterstatement of material facts, Dkt. No. 77-31, and the parties' attached exhibits and declarations, see generally Dkt. Nos. 65, 77, 80, 85. These facts are undisputed unless otherwise noted. The Court construes the facts relevant to each party's motion in the light most favorable to the non-moving party.
Citations to docket entries will refer to the pagination generated by CM/ECF, the Court's electronic filing system. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
On September 8, 2017, Plaintiff applied for a full-time probationary position with the CVSCSD as a special education teacher. Dkt. No. 57-26 at ¶ 1. On September 15, 2017, CVSCSD's Director of Special Education, Bonnie Georgi (“Dir. Georgi”), recommended to the CVSCSD Superintendent of Schools, TheriJo Snyder (“Superintendent Snyder”) that Plaintiff be hired as a special education teacher. Id. at ¶ 2. In turn, on September 21, 2017, Superintendent Snyder recommended to the CVSCSD Board of Education (“BOE”) that Plaintiff receive a four-year probationary appointment as a special education teacher, which the BOE approved. Id. at ¶ 3.
Superintendent Snyder was previously known as TheriJo Climenhaga. Dkt. No. 57-26 at ¶ 2. Because all parties refer to TheriJo Climenhaga as Superintendent Snyder, for ease of reference, the Court will do the same.
Plaintiff's four-year probationary appointment began on September 18, 2017, and was to conclude on August 17, 2021. Id. at ¶ 4. During her probationary term, Plaintiff was aware that her fourth year was her “tenure year” during which she would find out whether or not she would be awarded tenure by the District. Id. at ¶ 5. It is undisputed that at the time of Plaintiff's hiring, she did not inform the District that she was diagnosed with a learning disability. Id. at ¶ 8.
One of the responsibilities of special education teachers employed by the District, including Plaintiff, was to prepare draft Individualized Education Plans (“IEP”) for each classified student assigned to them. Id. at ¶ 10. During Plaintiff's first probationary year, she was aware that her production of draft IEPs for her classified students was an important responsibility. Id. at ¶ 12. She was also aware that her production of draft IEPs for her classified students was important for the Committee on Special Education (“CSE”) to complete its work and was one of her central goals as a special education teacher. Id. at ¶¶ 13, 14.
Plaintiff failed to meet the Spring 2018 deadline for submitting draft IEPs for the classified students assigned to her during the 2017-18 school year. Id. at ¶ 16-19. On June 13, 2018, Dir. Georgi issued Plaintiff a formal counseling memo, summarizing prior email correspondence and conversations, which states:
On March 9, 2018, I met with the Special Education teaching staff to review the expectations for the timely submission of draft IEPs. At this meeting, it was noted that all draft IEPs were to be completed one week prior to student CSE meetings. It was further noted that staff would have an additional week to update the draft document following the meeting in order to accommodate any changes that were needed. The special education staff were encouraged to sign up with their mentors for IEP writing days that were made available with substitute coverage. You did avail yourself of this opportunity on March 19th.
On May 12th I emailed you requesting that your IEPs be completed by May 18th. You failed to complete these by the deadline. I emailed you again on May 23rd and generously offered to extend the deadline to June 1st and once again this deadline was not met. As of today, June 5th, I have reviewed the draft IEPs in the Cleartack system and have discovered that you have failed to complete drafts for three of the five students in your classroom. This is unacceptable being that you were given advance notice of the expectations and additional deadline dates.
You have been given ample time to complete your IEPs prior to today. I expect without exception that you will have all of the outstanding IEPs completed no later than Monday, June 11th. If your IEPs are not completed by this deadline, you will jeopardize your continued employment with the District.
As noted in email correspondence to Ms. Margaret Bouck, your IEPs were not completed on Monday, June 11th as agreed to in our meeting on Thursday, June 7th. When checked again at the close of business on Tuesday, June 12th the IEPs remained incomplete. As per our agreement, this counseling memo will be placed in your personnel file.Id. at ¶ 21.
The parties agree all of the statements contained in the June 13, 2018, counseling letter are true and accurate. Dkt. No. 57-26 at ¶ 22.
At the conclusion of the 2017-18 school year, Plaintiff had concerns about whether or not she would be called back for a second year of teaching by the District. Id. at ¶ 24.
During Plaintiff's second probationary year, Plaintiff failed to meet the Spring 2019 deadline for submitting draft IEPs for the classified students assigned to her during the 2018-19 school year. Id. at ¶ 26. On June 10, 2019, Plaintiff received an email from Dir. Georgi about the missed IEP deadline. Id. Plaintiff testified that although she missed the Spring 2019 deadline, at that time she did not consider it to “be a big deal” and it was “honestly the last thing on her mind” because she was focused on the “personal problems” she was having with her mother, partner, and children. Id. at ¶ 27. Superintendent Snyder also met with Plaintiff to address her use of her personal cellphone in class. Dkt. No. 57-26 at ¶ 25. At the end of Plaintiff's second probationary year, she considered requesting a leave of absence to address her family issues but never made that request nor talked to anyone at the District about such a leave. Id. at ¶ 28.
Plaintiff believes this meeting occurred during her third probationary year, not her second. Dkt. No. 77-3 at ¶ 25. Plaintiff states the meeting was prompted because Plaintiff complained that an aide was using her cellphone during the class, and thereafter, the aide complained to Superintendent Snyder that Plaintiff was using her cellphone when she was not. Id. Superintendent Snyder states that during the meeting Plaintiff “did not deny using her personal cell phone during class but rather expressed confusion about the rules around cell phone use.” Dkt. No. 57-4 at ¶ 10.
During her third probationary year, Plaintiff was “behind” on her IEPs for the classified students assigned to her during the 2019-20 school year. Id. at ¶ 29. On June 3, 2020, Plaintiff wrote an email message to Dir. Georgi apologizing for her failure to timely submit draft IEPs for the classified student assigned to her during the 2019-20 school year. Id. at ¶ 32. Plaintiff informed Dir. Georgi she was “dealing with something very personal” but she did not disclose what the “something” was. Id. at ¶ 33. In a June 17, 2020, email, Plaintiff apologized for failing to timely submit report cards for the students assigned to her during the 2019-20 school year. Id. at ¶ 34.
Plaintiff testified it was a very hectic time due to the COVID-19 pandemic and that she also informed Dir. Georgi she did not have home internet access. Dkt. No. 77-3 at ¶ 29.
Plaintiff contends she was only required to submit progress notes, not report cards for her students. Dkt. No. 77-3 at ¶ 34. Nevertheless, Plaintiff took the initiative to implement her personally designed report cards, so that her students would feel included along with the rest of the students in school by getting their own report cards. Id.
According to Superintendent Snyder, before the end of the 2019-20 school year, she told Dir. Georgi that she was not going to recommend Plaintiff for tenure. Dkt. No. 57-4 at ¶ 12. Dir. Georgi agreed with Superintendent Snyder's decision. Id. Thus, in June 2020, “the only remaining question regarding Ms. Utter was when her probationary employment should be terminated.” Id. (emphasis in original). After discussing the timing for the termination of Plaintiff's probationary employment with Dir. Georgi, Superintendent Snyder decided not to terminate Plaintiff during the summer of 2020 but to defer that termination action until August 2021 at the conclusion of Plaintiff's four-year probationary term. Id. Superintendent Snyder states the reasons for delaying the termination action included, inter alia, Plaintiff's existing relationship with the special education students assigned to her class and parents involved with remote learning (so her presence provided some level of continuity for students and parents); concerns about Plaintiff's inability to secure a new teaching job in the middle of the pandemic; and the uncertainty of what the pandemic would mean for the District during the 2020-21 school year in terms of modes of teaching and recruitment opportunities. Id.
While the District returned to in-person learning for the 2020-21 school year, two of the five classified students assigned to Plaintiff obtained health waivers exempting them from inperson instruction which left Plaintiff with only three students physically in her District classroom. Dkt. No. 57-26 at ¶ 37. According to Superintendent Snyder and Dir. Georgi, rather than “abolishing Plaintiff's position, the District assigned Plaintiff supplemental instructional duties for non-classified elementary students so that Plaintiff would have a full-time workload during her fourth probationary year (i.e., the 2020-21 school year). Id. at ¶ 38. In contrast, Plaintiff maintains she always had a “full workload” because she was still responsible for teaching the two remote classified students even though they were not physically in her classroom. Dkt. No. 77-31 at ¶ 37.
Superintendent Snyder states Dir. Georgi and Elementary School Principal Jim Brophy engaged with Plaintiff and her union president to arrange for Plaintiff to provide “remote supplemental education (e.g., tutoring) to two small groups of general education students (since Ms. Utter was also certified to teach general education elementary students).” Dkt. No. 57-4 at ¶ 13. The parties dispute the nature and responsibilities of Plaintiff's “supplemental instruction duties for the non-classified students.” See Dkt. No. 57-3 at ¶ 18; Dkt. No. 57-4 at ¶ 13; Dkt. No. 77-1 at ¶¶ 31, 36. Plaintiff states the District failed to communicate with her and her colleagues about what Plaintiff's role and responsibilities were pertaining to these mutually shared students, resulting in much confusion. Dkt. No. 77-31 at ¶ 142. For example, Plaintiff and Chris Kilmartin, a fellow District elementary teacher and union member, received conflicting information about who was responsible for printing and copying the remote students' lessons and daily worksheets for the mutually shared, non-classified students. See id. at ¶¶ 144, 145.
On September 24, 2020, Plaintiff failed to appear for a scheduled meeting with Dir. Georgi and Principal Brophy. Dkt. No. 57-26 at ¶ 39. On September 25, 2020, Plaintiff failed to appear for the re-scheduled meeting. Id. at ¶ 40.
In October of 2020, a parent of one of the students assigned to Plaintiff expressed concerns about their child's educational services provided remotely. Id. at ¶ 41. On October 22, 2020, Plaintiff and Chris Kilmartin had a meeting during which both teachers expressed frustration regarding Plaintiff's role and responsibilities regarding their mutually shared students. Id. at ¶ 42. In his declaration, Chris Kilmartin states Plaintiff made several insulting and unprofessional comments to him. Dkt. No. 57-5 at ¶ 3. In an email to her union president, Plaintiff acknowledged that she “was very short with [Chris Kilmartin] and sarcastic, and he probably was upset with that.” Dkt. No. 57-26 at ¶ 43.
Following the October 22, 2020, meeting, Plaintiff felt it was time for her to leave the District. Id. at ¶ 44. By email sent at 10:56a.m. on October 22, 2020, Plaintiff emailed her union president stating “my gut tells me this is the time. Please help me write a letter of resignation.” Id. at ¶ 45.
At 12:08p.m. on October 23, 2020, Plaintiff sent an email to Dir. Georgi, Principal Brophy, and her two-union representatives, and copied Superintendent Snyder, stating:
May I ask why I am continuously being segregated from these meetings, in which I should be present if they pertain to me and our
mutual students? I think we could all agree that it would be beneficial for everyone involved to be on the same page so that there are no more communication issues. This is just a continuation from last year with the first grade team when it involved a particular nonidentified gen. ed. student receiving his instruction from me without an IEP. I wasn't invited to attend any of those meetings but was met with separately, after the fact. I would like you to know that I feel as though I am being treated differently than my work colleagues and as a result, I am then being treated differently by my work colleagues. I think it's imperative at this point in time that all of you know that I have a documented learning disability. I have decided for the benefit of continuing my career path that I seek support through a disability advocate to assist me with the communications with my administrative team, just to make sure that I am comprehending all the communications that are transpiring around the building. I appreciate your patience with me over the past three years and I look forward to working with all of you for many years to come.Dkt. No. 57-20 at 2. Later that afternoon, at 2:11p.m., Plaintiff emailed Dir. Georgi, stating in part: “I just made myself completely vulnerable by informing my employer of my Disability.... I get the impression from you that you would like me to leave. I've felt like this for a while and that you no longer appreciate my efforts.” Dkt. No. 57-26 at ¶ 48.
By letter dated December 4, 2020, Superintendent Snyder informed Plaintiff that she would not be recommending Plaintiff for tenure and intended to recommend to the BOE that Plaintiff's probationary employment be terminated. Id. at ¶ 51. On December 10, 2020, Plaintiff submitted a medical note excusing Plaintiff from work. Id. at ¶ 53. Plaintiff did not perform any teaching services for the District after December 10, 2020. Id. at ¶ 52. On December 16, 2020, as requested by Plaintiff, Superintendent Snyder provided Plaintiff with a letter summarizing the reasons for recommending termination of Plaintiff's probationary employment rather than awarding tenure. Id. at ¶ 55.
The parties use the date December 10, 2021. Dkt. No. 57-26 at ¶ 52. However, the Court assumes based on the context that Defendant meant December 10, 2020. See, e.g., Dkt. No. 57-3 at ¶ 25 (“As of December 21, 2021, just days after receiving Superintendent's ‘no tenure' notice, Ms. Utter stopped coming to work and began submitting generic medical excuses taking leaves of absences.”); Dkt. No. 57-4 at ¶ 19 (same).
On January 7, 2021, Dir. Georgi wrote Plaintiff an email expressing concern about the absence of lesson plans for Plaintiff's students. Id. at ¶ 54. On January 8, 2021, Plaintiff submitted another medical note excusing Plaintiff from work. Id. at ¶ 53.
By letter dated January 29, 2021, Plaintiff was informed that the BOE voted to terminate her probationary employment effective February 20, 2021. Id. at ¶ 57.
III. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is warranted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). The movant may meet this burden by showing the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing there is a genuine issue for trial. Salahuddin, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); accord Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002). “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
The Second Circuit instructs that on summary judgment motions, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Jeffreys, 426 F.3d at 554 (alteration and emphasis in original) (quoting Anderson, 477 U.S. at 252). In other words, “a nonmoving party must offer some hard evidence showing that [her] version of the events is not wholly fanciful.” Id. (internal punctuation and citation omitted). Accordingly, statements “that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). “Where, as here, there are cross-motions for summary judgment, ‘each party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration.'” Lumbermens Mut. Cas. Co. v. RGIS Inventory Specialists, LLC, 628 F.3d 46, 51 (2d Cir. 2010) (quoting Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir. 2001)). In applying the summary judgment standard, the court should not weigh evidence or assess the credibility of witnesses. Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (“Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.”).
Where a party seeks summary judgment against a pro se litigant, or a pro se litigant moves for summary judgment, the Court affords the pro se litigant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (per curiam). Despite this liberal approach, allegations unsupported by admissible evidence “do not create a material issue of fact” and cannot overcome a properly supported motion for summary judgment. Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
IV. DISCUSSION
A. Plaintiff's Motion for Summary Judgment
On August 31, 2023, Plaintiff submitted an unsigned one-paragraph letter described as her “best attempt at a dispositive motion.” Dkt. No. 60. The Court is mindful that pro se litigants are entitled to special solicitude. See Triestman, 470 F.3d at 477 (citations omitted). However, “[a]s has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules.” Cusamano v. Sobek, 604 F.Supp.2d 416, 425-26 (N.D.N.Y. 2009); see also Jackson v. Broome Cnty. Corr. Facility, 194 F.R.D. 436, 436 (N.D.N.Y. 2000) (“Our District's requirements are not empty formalities.”).
In this case, Plaintiff failed to submit a statement of material facts as required under Local Rule 56.1, which provides in part, “[a]ny motion for summary judgment shall contain a separate Statement of Material Facts. . . . Failure of the moving party to submit an accurate and complete Statement of Material Facts shall result in a denial of the motion.” L.R. 56.1(a) (emphasis is original). Courts in this District have denied a pro se plaintiff's summary judgment motion when the pro se plaintiff failed to comply with Local Rule 56.1(a). See A'Gard v. Locke, No. 9:14-CV-0613 (GTS/DEP), 2016 WL 5137273, at *3 (N.D.N.Y. Sep. 21, 2016); Reed v. McGrath, No. 9:19-CV-1203 (GTS/TWD), 2021 WL 6750625, at *4 (N.D.N.Y. Dec. 22, 2021), report and recommendation adopted, 2022 WL 252170 (N.D.N.Y. Jan. 27, 2022); see also Cross v. State Farm Ins. Co., 926 F.Supp.2d 436, 451 (N.D.N.Y. 2013) (“The failure of a moving party to file a properly supported Local Rule [56.1(a)] Statement of Material Facts is fatal to a summary judgment motion.”).
The Court notes Plaintiff's submission also lacks a Notice of Motion, Memorandum of Law, and proof of service in violation of Local Rule 7.1(b). Additionally, Plaintiff's motion does not comply with Rule 56(a) of the Federal Rules of Civil Procedure, because Plaintiff has not “[identified] each claim . . . on which summary judgment is sought.” See generally Dkt. No. 60.
Furthermore, Plaintiff's motion for summary judgment does not comply with Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure. In particular, Plaintiff does not include an argument section in her motion (or reference any statute or relevant case law), and fails to cite “to particular parts of materials in the record” to support her “assertions” of employment discrimination and retaliation. See generally Dkt. No. 60. In fact, Plaintiff has not submitted any materials to support her allegations. Id. While Plaintiff's submissions as a pro se litigant “must be read to raise the strongest arguments that they suggest . . . arguments that the submissions themselves do not ‘suggest'” cannot be made on behalf of Plaintiff. Triestman, 470 F.3d at 477. Here, Plaintiff plainly does not make any arguments in her motion for summary judgment.
Instead, Plaintiff's submission includes: (1) a copy of 2004 decision issued by the Second Circuit in the case of Shaul v. Cherry Valley-Springfield Central School District, 363 F.3d 177 (2d Cir. 2004); (2) a copy of the 2015 administrative decision the NYS Commissioner of Education issued in the appeal of Nelson v. Cherry Valley-Springfield Central School District, Decision No. 16,845 (2015); and (3) a copy of what appears to be an online post (www.coopercrier.com) from January 30, 2012, describing charges two former employees of the CVSCSD filed against the District. See Dkt. No. 1 at 2-19.
Although the Court “has broad discretion to determine whether to overlook a party's failure to comply with local court rules,” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citations omitted), and “is ordinarily obligated to afford a special solicitude to pro se litigants . . . particularly where motions for summary judgment are concerned,” Sheindlin v. Brady, 597 F.Supp.3d 607, 623 (S.D.N.Y. 2022) (cleaned up), the Court finds that when considering all of foregoing procedural deficiencies, Plaintiff fails to demonstrate she is entitled to summary judgment as a matter of law. See also Dkt. No. 65. As a result, the Court denies Plaintiff's motion for summary judgment.
B. Defendant's Motion for Summary Judgment
Defendant also moves for summary judgment seeking dismissal of Plaintiff's complaint in its entirety. See generally Dkt. No. 57. In moving for summary judgment, Defendant argues: (1) Plaintiff cannot make out a prima facie case of disability discrimination or retaliation under the ADA; (2) even if she did, Defendant has advanced legitimate, non-discriminatory and non-retaliatory reasons for the no tenure and termination decision; and (3) Plaintiff can offer no evidence of pretext. Id. at 18-30. Plaintiff opposes Defendant's motion, arguing there is evidence from which a jury could conclude that Plaintiff was discriminated against because of her disability, and there are multiple disputed material issues of fact that preclude summary judgment. See generally Dkt. No. 77-30. In reply, Defendant contends, inter alia, Plaintiff's opposition “consists of the (partly sham) Affidavit her ghost counsel prepared for her which includes false information” and “presents opinions, innuendo, denials, suspicion, and speculation which, as a matter of law, are insufficient to survive Defendant's motion for summary judgment.” Dkt. No. 80 at 5-6. Relatedly, Defendant moves to strike the portions of Plaintiff's opposition submission that violate the Local Rules and the “Sham Affidavit Doctrine.” Dkt. No. 82. Plaintiff submitted a response in opposition to Defendant's motion to strike. Dkt. No. 85.
1. Special Solicitude
As noted, pro se litigants are afforded special solicitude on motions for summary judgment. Triestman, 470 F.3d at 477; see also Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). The policy of “liberally construing pro se submissions is to protect pro se litigants from inadvertent forfeiture of rights due to their lack of legal training.” Knox v. Cnty. of Ulster, No. 1:11-CV-0112 (GTS/CFH), 2013 WL 286282, at *1 n.1 (N.D.N.Y. Jan. 24, 2013).
Here, although Plaintiff is proceeding pro se, Plaintiff “received legal assistance” with her memorandum of law, Dkt. No. 77-30 at 7 n.1, and Local Rule 56.1 Counterstatement, Dkt, 77-31 at 1 n.1. It is obvious to the Court these documents were “ghostwritten by a lawyer or someone with a degree of legal know-how that would make applying pro se deference to the opposition inappropriate.” Zoulas v. New York City Dep't of Educ., No. 1:18-CV-2718, 2021 WL 3932055, at *9 (S.D.N.Y. Sept. 1, 2021) (“Indeed, its use of legal terminology alone shows that it is not the work of a pro se plaintiff whose inexperience with the law merits special solicitude.”). For instance, Plaintiff's twenty-eight-page memorandum of law is organized by headings and subheadings, and includes a caption, a table of contents, and a four-page table of authorities in Bluebook format. See Dkt. No. 77-30. Plaintiff's Rule 56.1 Counterstatement responds to Defendant's Statement of Material Facts, see Dkt. No. 77-31 at ¶¶ 1-85, and includes an additional ninety-three paragraphs of “undisputed facts,” see id. at ¶¶ 86-178. Plaintiff's submission also includes an affidavit, Dkt. No. 77, a declaration, Dkt. No. 77-1, and multiple exhibits, Dkt. No. 77-2 through Dkt. No. 77-29. In total, Plaintiff's opposition submission, which was received by the Court via MFT, consists of 436 pages.
Plaintiff also “received legal assistance” with her response in opposition to Defendant's motion to strike. Dkt. No. 85 at 4 n.1.
Despite being “ghostwritten” by an undisclosed attorney, Plaintiff's opposition submission still fails to comply with the Local Rules. See generally, Dkt. No. 77. For example, Plaintiff's memorandum of law exceeds twenty-five pages in length in violation of L.R. 7.1(b)(1). Dkt. No. 77-30 at 7-34. Moreover, to comply with L.R. 56.1(b), the non-movant's response “must (1) mirror the movant's Statement of Material Facts by (2) admitting and/or denying each of the movant's assertions in a short and concise statement, in matching numbered paragraphs with (3) a specific citation to the record where the factual issue arises.” Crawley v. City of Syracuse, 496 F.Supp.3d 718, 724, (N.D.N.Y. 2020). As Defendant points out, there are numerous instances within Plaintiff's 56.1 response wherein Plaintiff declares the listed statement “undisputed,” and then attempts to provide so-called “clarification” of the undisputed statement (e.g., Dkt. No. 77
In short, Plaintiff's opposition submission bears no resemblance to that of Plaintiff's motion for summary judgment, discussed above, or her previous correspondence with the Court. See Dkt. Nos. 8, 24, 27, 53, 60. “Where, as here, pro se submissions are ‘ghostwritten' by an attorney, such liberal construction may create unfairness toward the opposing party.” Knox, 2013 WL 286282, at *1 n.1 (declining to afford pro se litigant special solicitude where submissions were “ghostwritten” by an attorney). Indeed, “[t]o afford [Plaintiff] the special solicitude generally afforded pro se litigants in this case would allow [her] the benefit of legal counsel while also subjecting [her] to a less stringent standard reserved for those litigants who are truly unrepresented.” Askins v. Metro. Transit Auth., No. 1:19-CV-4927, 2020 WL 1082423, at *4 (S.D.N.Y. Mar. 5, 2020).
Accordingly, Plaintiff's response in opposition to Defendant's motion for summary judgment will not be afforded special solicitude. The Court has, however, reviewed Plaintiff's opposition submission in its entirety. 31 at ¶¶ 9, 17, 20, 21, 23, 25, 27, 29-34, 36-49, 53-54, 57-61, 68, 72-74, 77-84). Dkt. No. 82-1 at 10-12.
Even if the Court afforded Plaintiff pro se deference in her opposition submission, it would not change the outcome of this Memorandum-Decision and Order.
2. ADA Discrimination
Under Title I of the ADA, “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). In general, a plaintiff can allege disability discrimination under one of three theories: (1) intentional discrimination; (2) disparate impact; and (3) failure to make a reasonable accommodation. Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009). In the case at bar, Plaintiff proceeds under a theory of intentional discrimination. See generally Dkt. No. 1.
Claims alleging intentional discrimination in violation of the ADA are subject to the burden-shifting analysis originally established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013). First, the plaintiff must establish a prima facie case of discrimination under the ADA. Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006). Second, if an employee establishes a prima facie case, “the employer must offer through the introduction of admissible evidence a legitimate non-discriminatory reason for the [adverse action]; and [third] the plaintiff must then produce evidence and carry the burden of persuasion that the proffered reason is a pretext.” Id. In addition, to survive summary judgment, the plaintiff must show a genuine issue of fact that her disability was the but-for cause of the adverse action. See Natofsky v. City of New York, 921 F.3d 337, 348 (2d Cir. 2019) (“the ADA requires a plaintiff alleging a claim of employment discrimination to prove that discrimination was the but-for cause of any adverse employment action”).
a. Prima Facie Case
In order to establish a prima facie case of intentional discrimination under the ADA, Plaintiff must show: (1) Defendant is subject to the ADA; (2) she suffers from a disability within the meaning of the ADA; (3) she was otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation; and (4) she suffered an adverse employment action because of her disability. McMillan, 711 F.3d at 125 (citing Sista, 445 F.3d at 169). Plaintiff's burden at the prima facie stage is de minimis. Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). For purposes of this motion, Defendant does not contest the first or third elements of the prima facie case. Dkt. No. 57-25 at 13.
Defendant argues it is entitled to summary judgment because there is no basis from which a reasonable jury could find Plaintiff was disabled or regarded as disabled under the ADA. Dkt. No. 57-25 at 16-18. The Court agrees.
Under the ADA, a “disability” includes “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). “[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Id. § 12102(2)(A). “An impairment is a disability . . . if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). In considering whether a major life activity is substantially limited by an impairment, courts consider “the nature and severity of the impairment; its duration or expected duration; and the existence of any actual or expected permanent or long term impact.” Mazzeo v. Mnuchin, 751 Fed.Appx. 13, 15 (2d Cir. 2018) (quoting Capobianco v. City of New York, 422 F.3d 47, 57 (2d Cir. 2005)). A plaintiff must show that her impairments do not simply cause some difficulty with a major life activity, but that they substantially limit that activity. See Price v. Mount Sinai Hosp., 458 Fed.Appx. 49, 51 (2d Cir. 2012) (affirming a district court's finding that, while the plaintiff's symptoms of work-related stress and depression caused her some difficulty sleeping and eating, “no evidence showed that [her] impairments were substantially limiting” (emphasis in the original)).
Here, Plaintiff alleges she is disabled based upon her learning disability and submitted a Psychological Report prepared by M.L. Denburgy, Ph.D., dated July 20, 2007, which diagnosed Plaintiff as follows:
Two outstanding comparative deficits are weakness in auditory memory or auditory distractibility; and repetitive psycho-motor speed and attention. With addition of low frustration tolerance we have evidence of:
Attention Deficit Hyperactivity Disorder, combined type #314.01 DSM IV.
Depressive Disorder NOS #311 DSM IV.
Learning Disorder NOS #315.9 DSM IV.Dkt. No. 1-2 at 3. However, “that Plaintiff has been diagnosed with [a] condition, without more, [is] insufficient” to show that Plaintiff was disabled within the meaning of the ADA. Zuckerman v. GW Acquisition LLC, No. 20-cv-08742, 2021 WL 4267815, *11 (S.D.N.Y. Sept. 20, 2021); Ibela v. Allied Universal, No. 21-01995-CV, 2022 WL 1418886, at *2 (2d Cir. May 5, 2022) (“A diagnosis alone is insufficient to establish disability under the statute.”); see also Ramirez v. New York City Bd. of Educ., 481 F.Supp.2d 209, 218 (E.D.N.Y. 2007) (“Merely having an impairment does not make one disabled for purposes of the ADA.”). “The need to identify a major life activity that is affected by the plaintiff's impairment plays an important role in ensuring that only significant impairments will enjoy the protection of the ADA.” Reeves v. Johnson Controls World Servs., 140 F.3d 144, 152 (2d Cir. 1998).
In opposition to Defendant's motion for summary judgment, Plaintiff submitted a declaration stating her “ADHD symptoms include inattention, overwhelm, anxiety, frustration, and memory lapses. I need to rely heavily on consistency and clarification, as well as taking notes during meetings in case there is something I do not understand and can ask questions.” Dkt. No. 77-1 at ¶ 6. Plaintiff also states, “[w]hile I have a separate diagnosis of anxiety disorder, which was exacerbated by my ADHD, my anxiety is also a symptom of my ADHD. For example, I have trouble focusing and get distracted easily, and if I do not know something that people/colleagues are talking about, I get nervous, sweaty, hot, panicky, red then light headed, and feel like my head is in clouds.” Id. at ¶ 7. But “simply providing conclusory statements that Plaintiff is affected by her [learning disability/ADHD] is not enough to support a finding that she is disabled within the meaning of the ADA activities.” Philbert v. New York City Dep't of Educ., No. 1:21-cv-03119, 2024 WL 756362, at *6 (S.D.N.Y. Feb. 23, 2024) (internal punctuation and citation omitted); see also Villanti v. Cold Spring Harbor Cent. Sch. Dist., 733 F.Supp.2d 371, 381 (E.D.N.Y. 2020) (“plaintiff's own description of her limitations is insufficient to establish that she is significantly restricted in any major life activity”).
Although Plaintiff testified that she was diagnosed with a learning disability in 2000, and was reassessed in 2007 with a processing delay along with her ADHD diagnosis, Dkt. No. 77-31 at ¶¶ 88, 89, “[a] plaintiff must show that her impairments do not simply cause some difficulty with a major life activity, but that they substantially limit that activity.” Barone v. Judicial Branch of Conn., No. 3:17-cv-644, 2019 WL 7283383, at *13 (D. Conn. Dec. 27, 2019) (citing Price, 458 Fed.Appx. at 51). Other than the July 2007, Psychological Report, Dkt. No. 1-1, Plaintiff has not provided any medical records demonstrating the severity of her learning disability or ADHD and she has not offered any evidence as to how her learning disability or ADHD affect a major life activity as compared to the general population. See Barone, 2019 WL 7283383, at *13 (granting summary judgment to defendant where plaintiff provided “no such evidence” that she was “substantially limited [by her ADHD] in [her] ability to concentrate in comparison to the general population” (internal quotation marks omitted)); see also Choleva v. New England Stair Co., Inc., No. 3:18-cv-756, 2020 WL 3976969, at *7 (D. Conn. 2020) (granting summary judgment to defendant because plaintiff had not demonstrated how his learning disability substantially limited a major life activity including learning, concentrating, or thinking); see DeMar v. Car-Freshner Corp., 49 F.Supp.2d 84, 91 (N.D.N.Y. 1999) (granting summary judgment where “absent from Plaintiff's allegations are specific facts or evidence demonstrating that Plaintiff is substantially limited in his ability to concentrate in comparison to the general population.”).
As a result, a reasonable jury could not find Plaintiff's learning disability or ADHD substantially limited Plaintiff's ability to perform a major life activity “in comparison to the general population.” Barone, 2019 WL 7283383, at *13; see, e.g., Fitzgerald v. We Co., No. 20-cv-05260, 2022 WL 952963, at *8 (S.D.N.Y. Mar. 30, 2022) (plaintiff's statement that she was disabled in her sleeping and cognitive function, “supported by nothing more than her own affidavit,” was “too vague, conclusory, and self-serving to create a triable issue of fact as to whether her anxiety disorder cause[d] substantial limitations in any major life activities” (internal punctuation and citation omitted)); Philbert, 2024 WL 756362, at *6 (“[S]imply providing conclusory statements that Plaintiff is affected by her migraines is not enough to support a finding that she is disabled within the meaning of the ADA activities.” (internal punctuation and citation omitted)); see also Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (“[M]ere speculation and conjecture is insufficient to preclude [summary judgment].”); D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998) (“The non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful.”).
In the alternative, Plaintiff asserts there are disputed material issues of fact as to whether Plaintiff communicated her learning disability to the District and whether she was regarded as disabled. Dkt. No. 77-30 at 12-14. “A plaintiff is also disabled within the meaning of the ADA if [s]he is ‘regarded' by h[er] employer as having a physical or mental impairment that substantially limits a major life activity.” Capobianco, 422 F.3d at 57 (citing 42 U.S.C. § 12102(2)). A “regarded as” claim turns on the employer's perception of the employee. Id. For such a claim, the employer “must regard the employee as disabled within the meaning of the ADA, i.e., having an impairment that substantially limits a major life activity.” Id. (internal punctuation and citation omitted).
Here, Plaintiff cites to no evidence that supports an inference that her employer “regarded” her as having a mental impairment that substantially limits a major life activity. In her declaration, Plaintiff avers that “during the 2019-20 school year, I had a verbal conversation with my direct supervisor, Bonnie Georgi, during an informal one-on-one meeting, where I discussed my ADHD and my depression. While I do not remember the date of this meeting, it was probably sometime before the COVID-19 pandemic.” Dkt. No. 77-1 at ¶ 9. Plaintiff also emailed Dir. Georgi, Superintendent Snyder, Principal Brophy, and two union representatives October 23, 2020, stating in part, “I have a documented learning disability” and would seek support through a “disability advocate.” Id. at ¶ 10; see also Dkt. No. 57-20 at 2.
However, none of these statements from Plaintiff supports the inference that her employer regarded Plaintiff as having an impairment that substantially limits a major life activity. Rather, at most, the statements support the inference that the employer was aware that Plaintiff had ADHD, depression, and a learning disability. “But an awareness . . . is not the same as regarding Plaintiff as having an impairment that substantially limits a major life activity.” Philbert, 2024 WL 756362, at *7 (“Many people suffer from migraines and are not substantially impaired, and many persons receive periodic or ongoing treatment for medical conditions and are not substantially impaired.”); see also Weldran v. Dejoy, 839 Fed.Appx. 577, 580 (2d Cir. 2020) (summary order) (perceived disability claim failed on summary judgment because although plaintiff's supervisors knew he had a physical injury, there was no evidence that supported the inference that his employers believed he was substantially limited by that injury).
Because Plaintiff has failed to demonstrate that she is disabled within the meaning of the ADA, she has not made a prima facie case of discrimination. Defendant is thus entitled to summary judgment and Defendant's motion is granted. See, e.g., Wright-Jackson v. HIP Health Plan, No. 07 Civ. 1819, 2010 WL 624993, at *17 (S.D.N.Y. Feb. 19, 2010) (unnecessary to discuss remaining elements of prima facie discrimination case where plaintiff failed to establish one element).
b. Legitimate Non-Discriminatory Reason
Even if Plaintiff had established a prima facie case of disability discrimination, Defendant has proffered legitimate non-discriminatory reasons for the no tenure and termination decision including (1) Plaintiff failed to timely submit draft IEPs for her students during the 2017-18 school year and was issued a formal counseling letter on June 13, 2018, Dkt. No. 57-26 at ¶¶ 16-22; (2) Plaintiff failed to timely submit draft IEPs for her students during the 2018-19 school year, Id. at ¶¶ 26-27; (3) Plaintiff failed to timely submit draft IEPs for some of her students during the 2019-20 school year, Id. at ¶¶ 29-33; (4) Plaintiff missed meetings with her administrative supervisors, Id. at ¶¶ 39-40; (5) Plaintiff was counseled about unprofessional behavior, i.e., personal cell phone use, Id. at ¶ 25, and (6) Plaintiff failed to timely submit report cards for her students, Id. at ¶¶ 34, 35.
As Defendant points out, Dkt. No. 57-25 at 21, this burden is “light” and the “employer must simply articulate an explanation that, if true, would connote lawful behavior.” Mace v. Marcus Whitman Cent. Sch. Dist., No. 11-cv-6574, 2015 WL 5682665, at *7 (W.D.N.Y. Sept. 25, 2015); see also Mattera v. JP Morgan Chase Corp., 740 F.Supp.2d 561, 574 (S.D.N.Y. 2010) (“Defendants' burden at this stage is not to prove nondiscrimination. Instead, defendants must introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.”) (emphasis in original) (internal punctuation omitted). This evidence meets the District's burden of production to articulate legitimate nondiscriminatory reasons for the no tenure and termination decision. See Canales-Jacobs v. N.Y. State Office of Court Admin., 640 F.Supp.2d 482, 500 (S.D.N.Y. 2009) (“[O]n-the job misconduct and poor work performance always constitute legitimate and nondiscriminatory reasons” for terminating employment.) (citing Raytheon v. Hernandez, 540 U.S. 44, 54 n. 6 (2003))).
c. Pretext and Causation
Finally, Plaintiff cannot raise a triable issue of fact as to whether Defendant's proffered reasons were in fact “pretext for discrimination.” Iverson v. Verizon Commc'ns, No. 08 Civ. 8873, 2009 WL 3334796, at *4 (S.D.N.Y. Oct. 13, 2009). Plaintiff does not dispute that Defendant's concerns over her performance began before the District was aware of Plaintiff's diagnosed learning disability. While Plaintiff argues, inter alia, she had received positive evaluations of her performance prior the October 23, 2020, email, see Dkt. No. 77-30 at 22-31, “[t]he mere fact of past satisfactory performance, followed by negative feedback, is not suggestive of impermissible animus.” Missick v. City of New York, 707 F.Supp.2d 336, 350 (E.D.N.Y. 2010); see also Hines v. Hillside Children's Ctr., 73 F.Supp.2d 308, 315-16 (W.D.N.Y. 1999) (“[P]rior good evaluations alone cannot establish that later unsatisfactory evaluations are pretextual. To hold otherwise would be to hold that things never change, a proposition clearly without a basis in reality.”) (internal punctuation and citation omitted).
After careful review of the record, the Court finds Plaintiff has also failed to meet her burden at the third step of the McDonnell Douglas analysis. Although the temporal proximity between Plaintiff's October 23, 2020, email and termination provides an inference of potential discrimination, it is not enough on its own to overcome Defendant's well-documented non-discriminatory reasons for the employment decision in this case. See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 932-33 (2d Cir. 2010) (stating that “temporal proximity is insufficient to satisfy [a plaintiff's] burden to bring forward some evidence of pretext”); see also Trent v. Town of Brookhaven, 966 F.Supp.2d 196, 206 (E.D.N.Y. 2013) (“Temporal proximity may be sufficient to show a prima facie case, but it is insufficient to demonstrate pretext.”). Aside from temporal proximity, Plaintiff has not presented any evidence to connect her alleged disability to the decision to deny tenure or terminate her employment.
In sum, Plaintiff has failed to adduce evidence that reasonably supports a finding of discriminatory intent based on her alleged disability. Defendant's explanation that Plaintiff was terminated because of her performance issues and misconduct is consistent throughout the record and supported by sworn statements from District employees. See generally Dkt. Nos. 57-3, 57-4, 57-5, 15-6, 80-1, 80-2. Additionally, Defendant has submitted evidence that Superintendent Snyder has made a similar “no tenure” decision regarding five other District teachers, who were not disabled, nor perceived to be disabled. Dkt. No. 57-4 at ¶ 23. Moreover, in January 2021, Superintendent Snyder made an affirmative recommendation to award tenure to Kathleen Urban, a special education teacher with a learning disability, which the BOE approved on January 6, 2021. Id. at ¶ 22. Lastly, the teacher assigned by the District to teach the self-contained special education class Plaintiff taught before her departure suffers from medical conditions and daily symptoms, which were known to the District. Dkt. No. 80-1 at ¶ 2.
Viewing the evidence in the light most favorable to Plaintiff, no reasonable jury could find that Defendant's reasons were pretextual and that Plaintiff's alleged disability was the but-for cause of her termination. See El Sayed, 627 F.3d at 932-33 (affirming the dismissal of the plaintiff's discrimination claim where “[the plaintiff] produced no evidence other than temporal proximity in support of his charge that the proffered reason for his discharge was pretextual”).
Accordingly, Defendant is entitled to summary judgment on Plaintiff's ADA discrimination claim. See Graham v. Three Village C. Sch. Dist., No. 11-cv-5182, 2013 WL 5445736, at *26 (E.D.N.Y. Sept. 30, 2013) (granting summary judgment on discriminatory discharge claim where the plaintiff “point[ed] to nothing in the record from which a rational jury could find her termination was ‘because of' her hip impairment, or that the District's underlying motive to terminate her was attributable to a discriminatory intent, and not to her job performance,” and there was “uncontroverted evidence that plaintiff was not the only employee who was denied tenure at the conclusion of her probationary period.”); see also Grillo v. N.Y.C. Transit Auth., 291 F.3d 231, 235 (2d Cir. 2002) (“[Plaintiff] has done little more than cite to his alleged mistreatment and ask the court to conclude that it must have been related to his [protected status].”) (internal punctuation omitted); Varughese v. Mount Sinai Med. Ctr., No. 12-cv-8812, 2015 WL 1499618, at *42 (S.D.N.Y. Mar. 27, 2015) (“fallacy” for plaintiff to say, “I belong to a protected class; something bad happened to me at work; therefore, it must have occurred because I belong to a protected class.”) (internal punctuation omitted), aff'd, 693 Fed.Appx. 41 (2d Cir. 2017) (summary order).
3. ADA Retaliation Claim
The ADA makes it unlawful for an employer to “coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of . . . any right granted or protected by this chapter.” 42 U.S.C. § 12203(b). The ADA further renders it unlawful for an employer to “discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” Id. § 12203(a).
To establish a retaliation claim under the ADA, a plaintiff must show that: (1) she engaged in protected activity; (2) the defendant was aware of this activity; (3) the defendant took an adverse action against the plaintiff; and (4) a causal connection exists between the protected activity and the adverse action. See Weixel v. Bd. of Educ., 287 F.3d 138, 148 (2d Cir. 2002). A retaliation claim is analyzed under the same three-part McDonnell Douglas burden shifting framework as discrimination claims. Emmons v. Broome Cnty., No. 3:16-cv-1114 (DNH), 2018 WL 2364286, at *7 (N.D.N.Y. May 24, 2018); Prindle v. City of Norwich, No. 15-CV-1481 (GTS), 2018 WL 1582429, at *8 (N.D.N.Y. Mar. 27, 2018).
Protected activity is “action taken to protest or oppose statutorily prohibited discrimination.” Natofsky, 921 F.3d at 354 (citation omitted). The “underlying conduct about which the plaintiff complains need not actually be unlawful so long as plaintiff possessed a good faith, reasonable belief that the challenged action violated the law.” Frantti v. New York, 414 F.Supp.3d 257, 290-91 (N.D.N.Y. 2019) (citation omitted), aff'd, 850 Fed.Appx. 17 (2d Cir. 2021). To constitute protected activity, a plaintiff's complaint “must be sufficiently pointed to be reasonably understood as a complaint of discrimination.” Cain v. Mandl Coll. of Allied Health, No. 14-cv-1729, 2015 WL 3457143, at *6 (S.D.N.Y. May 29, 2015) (citation omitted). “The burden is on the employee to make clear to the employer “that [she] is complaining of unfair treatment due to [her] membership in a protected class and that [she] is not complaining merely of unfair treatment generally.” Aspilaire v. Wyeth Pharms., Inc., 612 F.Supp.2d 289, 308-09 (S.D.N.Y. 2009).
Here, Plaintiff points to the October 23, 2020, email she sent to Dir. Georgi, Principal Brophy, and Superintendent Snyder as protected activity. Dkt. No. 77-30 at 23. In this email, as set forth above, Plaintiff inquired “why” she was being “segregated” from meetings. Dkt. No. 57-20 at 2. She also stated, “I think it's imperative at this point in time that all of you know that I have a documented learning disability. I have decided for the benefit of continuing my career path that I seek support through a disability advocate to assist me with the communications with my administrative team, just to make sure that I am comprehending all the communications that are transpiring around the building.” Id.
Plaintiff's email fails to qualify as protected activity as a matter of law because the complaints contained in the email are not “opposing” or “complaining about unlawful discrimination.” Dkt. No. 80 at 13-14; see also Dkt. No. 57-25 at 23-30; see, e.g., Frantti, 850 Fed.Appx. at 21 (concluding an email plaintiff sent to the defendant did not constitute a protected activity “because Frantti neither complains of discrimination nor seeks an accommodation.”); Fattoruso v. Hilton Grand Vacations Co., LLC, 525 Fed.Appx. 26, 28 (2d Cir. 2013) (finding general complaints were not protected activity and plaintiff's “belief that he was being treated ‘unfairly' [does not] transform his complaints . . . into charges over unlawful discrimination”). There is simply no evidence from which a reasonable jury could conclude that Plaintiff's email amounted to a complaint about unlawful discrimination as opposed to general complaints about staffing matters. See Risco v. McHugh, 868 F.Supp.2d 75, 110 (S.D.N.Y. 2012).
In any event, even if Plaintiff could make out a prima facie claim of retaliation, for reasons discussed above, Defendant's proffered reason for terminating Plaintiff's employment, poor work performance and job misconduct, is well-documented, legitimate, and non-retaliatory. Moreover, Plaintiff's retaliation claim also fails at step three of the McDonnel Douglas analysis, for the same reasons discussed above. In particular, the record shows that the no tenure decision was made before her alleged protected activity, and Plaintiff has presented no evidence, aside from temporal proximity, to draw a connection between her October 23, 2023, email, and Defendant's decision to terminate her employment. Contrary to Plaintiff's assertion, Dkt. No. 77-30 at 32-33, at the pretext stage, temporal proximity is not enough to rebut Defendant's well-documented reasons for the decision to terminate her probationary employment. See El Sayed, 627 F.3d at 932-33; Trent, 966 F.Supp.2d at 206.
Viewing the evidence in the light most favorable to Plaintiff, a jury could not reasonably find that Defendant's stated reasons for the adverse action were a pretext for unlawful retaliation. Although Plaintiff disputes some of the performance complaints, resolving those disputed facts in her favor would not permit a reasonable jury to conclude that a retaliatory motive was the but-for cause of this adverse employment action. See, e.g., Sivio v. Vill. Care Max, 436 F.Supp.3d 778, 799 (S.D.N.Y. 2020) (explaining that the ultimate burden of persuasion remains on the plaintiff to prove that the desire to retaliate was the cause of the employer's allegedly wrongful action).
Accordingly, Defendant is entitled to summary judgment on Plaintiff's ADA retaliation claim. See Widomski v. State Univ. of New York, 933 F.Supp.2d 534, 553 (S.D.N.Y. 2013) (granting summary judgment to defendant on the plaintiff's ADA retaliation claim where her claim relied solely on temporal proximity and the plaintiff otherwise failed to rebut the defendant's legitimate, non-discriminatory justification for the plaintiff's termination); Gray v. Onondaga-Cortland-Madison BOCES, No. 5:16-cv-973 (NAM/TWD), 2020 WL 1029022, at *11 (N.D.N.Y. Mar. 3, 2020) (same).
4. NYSHRL Claims
Defendant argues to the extent Plaintiff has attempted to advance NYSHRL claims, such claims must be dismissed as a matter of law. See Dkt. No. 57-25 at 30. Having dismissed Plaintiff's ADA claims, the Court declines, in its discretion, to retain supplemental jurisdiction over Plaintiff's NYSHRL claims. See 28 U.S.C. § 1367(c)(3). When deciding whether to exercise supplemental jurisdiction, courts consider “the values of judicial economy, convenience, fairness, and comity.” Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 117-18 (2d Cir. 2013) (citation omitted). “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Courts “commonly decline to exercise supplemental jurisdiction after awarding defendants summary judgment on plaintiffs' federal claims.” Martin v. Sprint United Mgmt. Co., No. 15-cv-5237, 2017 WL 5028621, at *3 (S.D.N.Y. Oct. 31, 2017) (collecting cases); Sotak v. Bertoni, 501 F.Supp.3d 59, 86 (N.D.N.Y. 2020) (“Because summary judgment will be granted as to the [federal] claims, the continued exercise of supplemental jurisdiction over [the plaintiff's] state law claims will be declined.”). Because this is a “usual case in which all federal-law claims are eliminated before trial” that presents no exceptional circumstances, Cohill, 484 U.S. at 350 n.7, the Court declines to exercise supplemental jurisdiction over Plaintiff's state-law claims and dismisses those claims without prejudice.
C. Defendant's Motion to Strike
Having granted Defendant's motion for summary judgment, Defendant's motion to strike is denied as moot.
V. CONCLUSION
For these reasons, it is hereby
ORDERED that Plaintiff's motion for summary judgment, Dkt. No. 60, is DENIED; and it is further
ORDERED that Defendant's motion for summary judgment, Dkt. No. 57, is GRANTED; and it is further
ORDERED that Plaintiff's ADA discrimination and retaliation claims against Defendant are DISMISSED WITH PREJUDICE; and it is further
ORDERED that Plaintiff's NYSHRL claims against Defendant are DISMISSED
WITHOUT PREJUDICE; and it is further
ORDERED that Defendant's motion to strike, Dkt. No. 82, is DENIED AS MOOT; and it is further
ORDERED that the Clerk serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
IT IS SO ORDERED.