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RE: [nyceducationnews] TRIAL STARTS TOMORROW OF DISTRICT 3 PATRICIA ROMANDETT...

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  • Jeff Kaufman
    CLARA GARRETT, Plaintiff, v. JAMES MAZZA, individually and as Superintendent of Community School District # 3, PATRICIA ROMANDETTO, individually and as
    Message 1 of 3 , Dec 3, 2006

      CLARA GARRETT, Plaintiff, v. JAMES MAZZA, individually and as Superintendent of Community School District # 3, PATRICIA ROMANDETTO, individually and as Superintendent of Community School District # 3, RUDOLPH CREW, as Chancellor of the New York City Public Schools, and NEW YORK CITY BOARD OF EDUCATION, Defendants.


      97 Civ. 9148 (BSJ)


      UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


      2005 U.S. Dist. LEXIS 20403


       
      August 30, 2005, Decided  
      September 19, 2005, Filed


      PRIOR HISTORY: Garrett v. Mazza, 2001 U.S. Dist. LEXIS 1210 (S.D.N.Y., Feb. 13, 2001)


      DISPOSITION:  [*1]  Defendants' motion for summary judgment granted on claim of constructive discharge.

      COUNSEL: For Clara Garrett, Plaintiff: Edward H. Wolf, Bronx, NY; Michael Howard Sussman, Goshen, NY.
       
      For James Mazza, individually, and as superintendent of Community School District # 3, Patricia Romandetto, individually and as successor superintendent of Community School District # 3, Rudolph Crew, as Chancellor of the New York City Public Schools, Defendants: Michele Ann Molfetta, Corporation Counsel of the City of New York, New York, NY; Orrit Hershkovitz, Jeffrey D. Friedlander, Acting Corp. Counsel of NY, New York, NY; Orrit Hershkovitz, Michael D. Hess, Corp. Counsel of the City of NY, New York, NY.
       
      For Community School Board # 3, Defendant: Orrit Hershkovitz, Jeffrey D. Friedlander, Acting Corp. Counsel of NY, New York, NY; Orrit Hershkovitz, Michael D. Hess, Corp. Counsel of the City of NY, New York, NY.
       
      For New York City Board of Education, Defendant: Michele Ann Molfetta, Corporation Counsel of the City of New York, New York, NY.

      JUDGES: Barbara S. Jones, UNITED STATES DISTRICT JUDGE.

      OPINION BY: Barbara S. Jones

      OPINION: Opinion and Order
       
      BARBARA S. JONES
      UNITED STATES  [*2]  DISTRICT JUDGE

      Plaintiff Dr. Clara Garrett ("Garrett") brings this action against Defendants James Mazza ("Mazza"), Patricia Romandetto ("Romandetto"), Rudolph Crew, and the New York City Board of Education ("the Board"), arising out of her removal in July 1997 from her position as principal of a Manhattan public middle school and her subsequent reassignments to different positions in the school system.

      PROCEDURAL HISTORY

      Garrett timely filed a complaint contesting her removal from office with the Equal Opportunity Employment Commission. That agency issued a "Notice of Right to Sue" in September 1997, and in December of that year Garrett filed a complaint properly invoking the jurisdiction of this Court pursuant to 42 U.S.C. § 2000e-5(f)(1) and 28 U.S.C. § 1343(a)(4). That original complaint named Community School Board # 3 as a defendant, but did not name the New York City Board of Education.

      Garrett alleged violations of: Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1983; 42 U.S.C. § 1985(3); 18 U.S.C. § 241; [*3]  New York Executive Law 296; and New York City Administrative Code 9-107.

      In an Order dated February 13, 2001, this Court granted summary judgment for various defendants on a number of Plaintiff's original claims. The Court denied summary judgment as to Garrett's Title VII discrimination and retaliation claims as to Community School Board # 3, and also denied the motion as to the state law discrimination and retaliation claims as to all defendants. A trial on those claims is now pending.

      On or about June 28, 2004, Plaintiff filed a Third Amended Complaint, substituting the New York City Board of Education for Community School Board # 3 and adding two further claims: that by refusing to appropriately assign her, Romandetto violated 42 U.S.C. § 1983 by restricting Plaintiff's right of access to the courts as protected by the First Amendment to the Constitution; and that she was constructively discharged, also in violation of 42 U.S.C. § 1983.

      Before the Court now is a second motion by Defendants for summary judgment on Garrett's claim of constructive discharge. For the reasons set forth below, Defendants' motion [*4]  for summary judgment is GRANTED.

      FACTS n1

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      n1 The Court includes record citations only for facts which are in dispute or are mentioned only in Garrett's papers.
       

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      Garrett was employed by the Board as a principal in Community School District # 3 (the "District") from 1979 until July 1997, when then-Deputy Superintendent Mazza removed her from that position. Garrett, who is black, alleges that this removal was, in part, in retaliation for her public criticism of the District's "Choice" plan, and that this and other of the Defendants' subsequent employment actions were in part racially motivated.

      In August 1997 Romandetto, who had by then replaced Mazza as District Superintendent, assigned Garrett to the position of Comprehensive Health Coordinator. In that position she worked at the District office, under the Director of Pupil Personnel Services. Her work area was among the secretaries at the District office, at a computer table that had belonged to one of the secretaries, and she was not given a telephone.  [*5]  Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl. Memo") at 3.

      In January 1998 Garrett was moved to another office, n2 where "she did the job of a 'clerical aide,' collecting immunization forms from principals and school health surveys," id.

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      n2 The record is not clear as to what title or titles Garrett held from January 1998 until November 1999. However, Garrett nowhere alleges that her compensation changed as a result of any of these reassignments.
       

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      In or about September 1998 Plaintiff was brought up on disciplinary charges, all of which were eventually dismissed. Sometime thereafter, Romandetto assigned Garrett to P.S. 144, where she was told by the principal that her office would be a windowless, unheated supply closet, without a telephone. Id. at 5. When she was removed from that space because of the concerns of the custodial staff over the lack of heat, Garrett was posted to the Board's central headquarters on Livingston Street in Brooklyn. There she was [*6]  given "a chair next to the coat rack" in a shared office, where she sat "for months and read the New York Times" before she was eventually given what were essentially editorial duties reviewing the grammar of decisions of hearing officers before they were presented to the Chancellor for his signature. Id. at 6 (quoting from the transcript of the first day of Garrett's deposition ("Garrett Dep. I"), at 73).

      In October or November 1999, Romandetto met with Garrett and offered her five different placement options within District # 3, all of which would have allowed her to retain her principal's salary but none of which she found acceptable because none were principalships. Plaintiff's Response to Defendants' Local Rule 56.1 Statement ("Pl. Resp.") at P21. n3

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      n3 In her Response to Defendants' Local Rule 56.1 Statement, Garrett fails to cite to the record in support of her statements controverting Defendants' Statement. Because the Court finds that these statements are in fact thoroughly supported in the record, the Court excuses this technical violation of Local Rule 56.1(d).
       

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      In November 1999, Garrett was assigned as principal of the middle school students at Wadleigh Secondary School ("Wadleigh"). She protested this assignment in writing, Pl. Memo at 8 (citing Exhibit 5 to the Affirmation of Michael Sussman ("Sussman Aff'n"), Letter from Garrett to Romandetto dated November 9, 1999). Garrett alleges that she was made to feel unwelcome by the existing administration at Wadleigh, because she had been foisted upon the school as part of what she saw as an inappropriate plan to divide what had been one school into two sub-units within the same building. Pl. Memo at 9-10. Garrett believes that the school and the community blamed her for the disruption caused by this plan, which she neither instituted nor even supported. Id.

      In March 2000 the community held a public meeting objecting to her placement at Wadleigh. Romandetto then removed Garrett from Wadleigh and assigned her to the position of Director of Pupil Personnel Services, at the same salary, benefits and work schedule of a tenured principal. As one of her duties in this position, Garrett responded to parents' complaints. Garrett claims that she was given only the complaints of black and Latino [*8]  parents, and that Romandetto's assistant, who is white, handled the complaints of white parents. Pl. Resp. at P30; Pl. Memo at 13.

      Garrett filed an administrative grievance soon after this appointment, claiming that she had a contractual right to be placed as a principal. The grievance was sustained, by a decision that made clear that Garrett did not have the right to a placement at the school of her choice. n4 Upon resolution of the grievance, Garrett was told she would be assigned as principal of a bilingual middle school, a position for which she felt herself unqualified. She saw this assignment as "programming her to fail," Plaintiff's Counter-Statement of Facts ("Pl. Counter-Stmt"), at P68 (citing transcript of the second day of Garrett's deposition ("Garrett Dep. II"), at 53). The assignment was upheld by the Chancellor's Office, id. at 71 (citing Exhibit 17 to Sussman Aff'n, Grievance Decision (OLR # 786), signed by the Chancellor's representative on March 26, 2001 ("The superintendent's assignment of the grievant to the Dual Language Middle School is an appropriate contractual remedy.")). However, Garrett was never told to report to that school. Pl. Counter-Stmt at 72 [*9]  (citing Garrett Dep. I at 139), and she remained in the position of Director of Pupil Personnel Services.

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      n4 Though Garrett contests this characterization of the decision, see Pl. Resp. at P29, the decision itself is attached as Exhibit 17 to the Sussman Aff'n and reads, in pertinent part, "The grievance is sustained . . . except as to the specific remedy asserted by the grievant, i.e., that she be assigned to [either of two particular schools] in District 3. . . . Nothing in the [Board's rules] gives the grievant a right to pick and choose the particular middle school to which she is to be assigned."
       

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      Throughout the period from July 1997 to August 2002, Garrett "repeatedly advised Romandetto that she wished to be returned to a contractually required principalship," id. at 74 (citing Garrett Dep. II at 121-22). She did not, however, seek other employment, hoping instead that this suit would result in an appropriate reassignment. Id. at 75 (citing Garrett Dep. I at 123-24). In all her various placements, [*10]  Garrett retained the pay and benefits that she had received as a principal.

      In August 2002, Romandetto assigned a white male coworker to attend an out of town conference to which Garrett had been sent the previous year. Garrett claims that, because of her position within the District, she was the more appropriate choice to attend the conference. The decision to send someone else was the proverbial "last straw" for Garrett, and she retired that same month.

      Garrett alleges that the events recited above combined to effect a constructive discharge, in violation of 42 U.S.C. § 1983.

      SUMMARY JUDGMENT STANDARD

      On a motion for summary judgment under FED. R. CIV. P. 56(c), the moving party must show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In order to defeat a motion for summary judgment, the opposing party must adduce admissible evidence that demonstrates the existence of genuine issues of material fact. G.D. Searle & Co. v. Medicore Communications, Inc., 843 F. Supp. 895, 903 (S.D.N.Y. 1994). [*11]  In deciding the motion, the district court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). However, mere conclusory allegations will not suffice to defeat the motion, and there "must be more than a 'scintilla of evidence'." G.D. Searle, 843 F. Supp. at 903.

      SUMMARY JUDGMENT ON A CONSTRUCTIVE DISCHARGE CLAIM

      "[A] claim of constructive discharge must be dismissed as a matter of law unless the evidence is sufficient to permit a rational trier of fact to infer that the employer deliberately created working conditions that were 'so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Stetson v. Nynex Serv. Co., 995 F.2d 355, 361 (2d Cir. 1993) (quoting Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983)). n5

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      n5 Garrett argues that Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S. Ct. 2342, 159 L. Ed. 2d 204 (2004), holds that working conditions need not be shown to be "intolerable" to support a constructive discharge claim, and that instead, a showing of a "humiliating demotion" can suffice. This is directly contradicted by the Court's language: "we hold, to establish 'constructive discharge,' the plaintiff ... must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response." Id. at 2347, 159 L. Ed. 2d at 211.
       

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      Because Garrett claims that Defendants' actions were motivated by racial prejudice, she must show that Defendants made her working conditions intolerable in circumstances from which a rational trier of fact might infer such a discriminatory motive. See Flaherty v. Metromail Corp., 235 F.3d 133, 138 (2d Cir. 2000). Likewise, in order to make out her claim of retaliation, Garrett must present evidence from which the trier of fact might infer a retaliatory motive. See Sokol v. Reading Regional Airport Auth., 1999 U.S. Dist. LEXIS 11696, No. Civ.A. 99-111, 1999 WL 562757 (E.D. Pa., July 23, 1999). Then, she must demonstrate "aggravating factors" that make the workplace intolerable. See, e.g., Jimoh v. Ernst & Young, 908 F. Supp. 220, 226 (S.D.N.Y. 1995); Grant v. Morgan Guar. Trust Co., 638 F. Supp. 1528, 1538 (S.D.N.Y. 1986). Because the Court finds that Garrett has not presented evidence of "aggravating factors" sufficient that a rational trier of fact could find her work environment intolerable, there is no need specifically to consider whether she has presented competent evidence of discriminatory or retaliatory animus on the part of Defendants.  [*13] 

      INTOLERABLE WORK ENVIRONMENT

      What a reasonable person would consider intolerable is "a question of fact that is ordinarily inappropriate for resolution on a motion for summary judgment." Allen v. Colgate-Palmolive Co., 1985 U.S. Dist. LEXIS 21532, No. 79 Civ. 1076-CSH, 1985 WL 406, at *2 (S.D.N.Y., March 21, 1985). However, "summary judgment may [sometimes] be appropriate even in the fact-intensive context of discrimination cases," Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001), because the reasonable person standard is objective and "does not depend on such traditionally triable issues as the subjective reaction of any particular employee to changed working conditions." Halbrook v. Reichhold Chem., Inc., 735 F. Supp. 121, 125-26 (S.D.N.Y. 1990).

      Courts in this Circuit and others have held that a reasonable person should be able to tolerate a considerable amount of unpleasantness on the job without feeling compelled to resign. See, e.g., Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir. 1993) (no constructive discharge where plaintiff "was ridiculed by his supervisor, blamed for not knowing about [*14]  certain changes in company practice of which no one had notified him, harangued by executives, written up and criticized for poor performance, threatened with termination, placed on probation, and suffered high blood pressure as a result of his supervisor's treatment."); Katz v. Beth Isr. Med. Ctr., 2001 U.S. Dist. LEXIS 29, No. 95 Civ. 7183 AGS, 2001 WL 11064, at *14 (S.D.N.Y. Jan. 4, 2001) (no constructive discharge where employee was "routinely" berated by her supervisors, criticized unfairly, given insufficient staff assistance, told to resign if dissatisfied, "and at least once threatened with termination"); Mark v. Mt. Sinai Hospital, 85 F. Supp. 2d 252, 257 (S.D.N.Y. 2000) (no constructive discharge where psychologist employed by hospital was deprived of a personal office and had to wheel a portable filing cabinet with her patient records from office to office every day, absent evidence that she was unable to secure a private room to meet with patients or that portable filing cabinet compromised security of confidential patient records). n6

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      n6 But see this Court's decision in Smitherman v. Williams-Sonoma, Inc., 1999 U.S. Dist. LEXIS 12336, No. 96 Civ. 5772 (BSJ), 1999 WL 608781, at *6 (S.D.N.Y. August 11, 1999). There, plaintiff alleged she was subjected to frequent comments denigrating her race and religion; repeatedly warned never to call corporate headquarters again after doing so once to complain about her treatment; passed over for promotions for which she was qualified; and that defendants caused her brother (and fellow employee) to be arrested and detained for a prolonged period as part of a scheme to force her to resign. In denying summary judgment, I found in Smitherman that the plaintiff had presented ample evidence that, if believed, could have led a rational trier of fact to conclude that her work environment had been made intolerable by an employer motivated by racial and retaliatory animus.
       

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      Here, Garrett has failed to offer evidence that, even when viewed in the light most favorable to her, makes the required showing of intolerability. Although Garrett may have been displeased with her position within the District and even humiliated by the circumstances of her reassignments, as she claims, no rational trier of fact could find that the evidence presented could add up to working conditions that a reasonable person would find "intolerable."

      Three undisputed facts in particular demonstrate this. First, Romandetto offered Garrett the choice of five different placements that would have allowed her to leave the position of Comprehensive Health Coordinator, to which she had been assigned after she was removed from her principalship. Garrett refused to accept any of the offered positions as not commensurate with her skills and experience, even though her salary and benefits would have remained the same had she taken any of them. The Court of Appeals for the Second Circuit has held that a constructive discharge cannot be established through evidence that the employee was simply "dissatisfied with the nature of [her] assignments," Stetson, 995 F.2d at 360; [*16]  see also Gray v. York Newspapers, Inc., 957 F.2d 1070 (3d Cir. 1992) (employee's subjective interpretation that continued employment would be uncomfortable and demeaning and would lead to demotion or termination in the future does not constitute constructive discharge); Gumbs v. Hall, 51 F. Supp. 2d 275 (W.D.N.Y. 1999) (no constructive discharge where plaintiff was simply "less than satisfied with the alternatives offered to her, because of her subjective belief that they would be a step down from her prior position").

      Second, Garrett remained in her position as Director of Pupil Personnel Services for more than two years despite her purported discontent, undermining her claim that she found the conditions "intolerable." The Court acknowledges that "the effect of a number of adverse conditions in the workplace is cumulative," Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 90 (2d Cir. 1996), and that workplace conditions in some instances become intolerable only after such a process of accumulation. Nevertheless, most courts have disfavored constructive discharge claims where plaintiffs have remained on the job for more [*17]  than a brief time. See, e.g., Flaherty v. Metromail Corp., 2001 U.S. Dist. LEXIS 10828, No. 98 CIV. 8611 (NLRB), 2001 WL 868011, at *5 (S.D.N.Y. July 31, 2001) (granting summary judgment for defendant where plaintiff's five-month "voluntary service following her alleged 'constructive discharge'" weighed heavily against her); Rodriguez v. Graham-Windham Servs. to Families & Children, 2001 U.S. Dist. LEXIS 362, No. 99 Civ. 10447 AGS, 2001 WL 46985, at *6 (S.D.N.Y. January 18, 2001) (where plaintiff agreed to work for two weeks beyond the date stated in her letter of resignation, court found "it would be difficult for a reasonable person to accept that an employee would voluntarily agree to work for a longer time in an atmosphere so intolerable that she felt forced to resign."). Here, Garrett's continued service belies her contention that her work environment was intolerable.

      Finally, Garrett has presented no evidence that her compensation was ever affected. Courts have found evidence of changes in compensation to be significant support for a claim of constructive discharge; see, Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 161 (2d Cir. 1998) (evidence supported jury verdict of constructive discharge [*18]  where plaintiff's compensation had been reduced by more than half, resulting in "a condition so difficult that a reasonable person in [his] shoes would have felt compelled to resign"). Conversely, courts have found the absence of such evidence fatal to plaintiffs' claims, see, Tanay v. St. Barnabas Hosp., 2001 U.S. Dist. LEXIS 2661, No. 99 Civ. 9215 (JGK), 2001 WL 262695 (S.D.N.Y., March 15, 2001) (no constructive discharge where plaintiff, though reassigned to her perceived detriment in retaliation for her complaints of discrimination, retained same salary, benefits and work hours). The fact that Garrett's salary and benefits were never reduced during the five years under consideration weighs very heavily against her claim of constructive discharge.

      CONCLUSION

      Construing the evidence in Garrett's favor, the Court finds that she has failed to show that her working conditions were so intolerable as to constitute a constructive discharge. Because Garrett did not establish this essential element of her claim, the Court need not address the sufficiency of her evidence on Defendants' retaliatory or racial motives.

      Defendants' motion for summary judgment is granted on the claim of constructive [*19]  discharge. The parties are directed to submit a joint pre-trial order on or before September 30, 2005. Trial shall commence on November 14, 2005 at 10:00 a.m. All motions in limine, proposed voir dire questions, and proposed jury instructions shall be submitted to the Court on or before November 7, 2005.
       
      SO ORDERED:

      Barbara S. Jones

      UNITED STATES DISTRICT JUDGE
       
      New York, New York
      August 30, 2005

       

      CLARA GARRETT, Plaintiff, v. JAMES MAZZA, individually and as superintendent of Community School District # 3, PATRICIA ROMANDETTO, individually and as successor superintendent of Community School District # 3, RUDOLPH CREW as Chancellor of the New York City Public Schools, and COMMUNITY SCHOOL BOARD # 3, Defendants.


      97 Civ. 9148 (BSJ)


      UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


      2001 U.S. Dist. LEXIS 1210


       
      February 13, 2001, Decided  
      February 13, 2001, Filed


      SUBSEQUENT HISTORY: Summary judgment granted by Garrett v. Mazza, 2005 U.S. Dist. LEXIS 20403 (S.D.N.Y., Aug. 30, 2005)


      DISPOSITION:  [*1]  Defendant's motion for summary judgment granted in part and denied in part.

      COUNSEL: For CLARA GARRETT, plaintiff: Edward H. Wolf, Bronx, NY.
       
      For JAMES MAZZA, PATRICIA ROMANDETTO, RUDOLPH CREW, COMMUNITY SCHOOL BOARD # 3, defendants: Orrit Hershkovitz, Jeffrey D. Friedlander, Acting Corp. Counsel of NY, New York, NY.
       
      For JAMES MAZZA, PATRICIA ROMANDETTO, RUDOLPH CREW, COMMUNITY SCHOOL BOARD # 3, defendants: Orrit Hershkovitz, Michael D. Hess, Corp. Counsel of the City of NY, New York, NY.

      JUDGES: Barbara S. Jones, UNITED STATES DISTRICT JUDGE.

      OPINION BY: Barbara S. Jones

      OPINION: Opinion and Order
       
      BARBARA S. JONES
      UNITED STATES DISTRICT JUDGE

      Introduction

      Plaintiff, a former principal of a Manhattan public middle school, has brought an employment discrimination action against defendants contesting her removal from that position under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., New York Executive Law 296, and the New York City Administrative Code 9-107. In addition, plaintiff brings claims for violations of 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), and 18 U.S.C. § 241. [*2]  Plaintiff also brings pendent state law claims for loss of income, damage to her professional standing, and intentional infliction of emotional distress.

      Particularly, she alleges that the defendants

      (a) discriminated against her on account of her race;

      (b) conspired, in violation of 18 U.S.C. § 241 and 42 U.S.C. § 1985(3), to deprive her of her civil rights;

      (c) retaliated against her for exercising her rights to free speech, as granted by the Constitution and by 42 U.S.C. § 1983;

      (d) deprived her of a property right to which she was entitled pursuant to 42 U.S.C. § 1983, which threatens to deprive her of tenure pension and position;

      (e) retaliated against her for filing federal and state claims for civil rights violations;

      (f) treated her differently from similarly situated white principals;

      (g) caused her to suffer a loss of professional standing, and

      (h) caused her severe emotional distress.

      Pending before the Court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, defendant's motion for summary judgment [*3]  is granted in part and denied in part.

      Discussion

      The defendants move first for summary judgment on Garrett's Title VII claims against defendants Mazza, Romandetto, and Crew on the ground that these defendants cannot be held personally liable for violating Title VII. This motion is granted. In Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 141 L. Ed. 2d 633, 118 S. Ct. 2257 (1998), the Second Circuit held that "individual defendants with supervisory control over a plaintiff may not be held liable under Title VII." Tomka, 66 F.3d at 1313. Accordingly, Garrett may not maintain her Title VII claims against these defendants in their individual capacities. Nor may Garrett maintain Title VII claims against Mazza, Romandetta and Crew in their official, as opposed to individual, capacities. See Harrison v. Banque Indosuez, 6 F. Supp. 2d 224, 229 (S.D.N.Y. 1998) (quoting Bakal v. Ambassador Constr., 1995 U.S. Dist. LEXIS 10542, 94 Civ. 584 (JSM), 1995 WL 447784 at *4 (S.D.N.Y. July 28, 1995). Accordingly, Mazza, Romandetta and Crew are entitled to summary [*4]  judgment on plaintiff's Title VII claims. n1

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      n1 The defendants do not address the issue of whether the plaintiff's claims under 42 U.S.C. § 1983 and under state law should be dismissed as against the individual defendants. Therefore the defendants' potential liability under § 1983 and state laws survives this portion of defendants' motion for summary judgment.
       

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      Although the Title VII employment discrimination claim may proceed against the School Board and the state law employment discrimination claims may proceed against all defendants, the defendants have moved for summary judgment on the ground that plaintiff has failed to establish a prima facie case for those claims.

      Garrett alleges that the defendants discriminated against her on the basis of her race in violation of Title VII and New York State and City Human Rights Laws. Our consideration of discrimination claims brought under the state and city human rights laws parallels the analysis used in Title VII claims, and accordingly [*5]  we consider Garrett's federal and state statutory claims in tandem. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n.4 (2d Cir. 2000) (quoting Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n.1 (2d Cir.1999) (New York state law); Landwehr v. Grey Adver. Inc., 211 A.D.2d 583, 622 N.Y.S.2d 17, 18 (App. Div. 1st Dep't 1995) (New York City law).

      Title VII forbids an employer from intentionally discriminating against an employee because of that employee's "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). A violation of Title VII can be shown by either direct, statistical or circumstantial evidence. See, e.g., Luciano v. Olsten Corp., 110 F.3d 210, 215-16 (2d Cir. 1997). The defendants have proffered a legitimate and non-discriminatory reasons for plaintiff's removal.

      Plaintiff contends that defendants' stated reasons for removing her as principal are pretextual, and that an inference of discrimination may be drawn from a number of facts. Although many of plaintiff's contentions are rebutted, this Court cannot say that there are no issues of fact from which a reasonable [*6]  juror could infer that defendants terminated Garrett for discriminatory reasons. Accordingly, because Garrett has raised a triable issue, summary judgment on plaintiff's Title VII and state law race discrimination claims is denied.

      Genuine issues of material fact precluding entry of summary judgment also exist regarding whether the defendants retaliated against Garrett in violation of state and federal law for filing a complaint of discrimination with the New York Division of Human Rights. Both Title VII and § 296 of the New York State Executive Law prohibit an employer from retaliating against an employee for opposing a discriminatory employment practice or for filing a complaint of discrimination. See 42 U.S.C. 2000e-3(a); NY Exec. Law 296(1)(e). New York courts apply the same analysis for retaliation claims under New York law as is applied under Title VII. See Powers v. Polygram Holding, Inc., 40 F. Supp. 2d 195, 202 n.2 (S.D.N.Y. 1999).

      To establish a prima facie case of retaliation, a plaintiff must show: (1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff, and [*7]  (3) a causal connection between the protected activity and the adverse employment action. See Tomka v. Seiler Corp., 66 F.3d at 1308 (citations omitted).

      The defendants do not contest that Garrett engaged in a protected activity known to them when she filed her complaint of discrimination with the New York State Division of Human Rights ("SDHR"). However, they argue that the employment actions complained of, whether adverse or not, were caused solely by her por performance and were announced before garrett filed her complaint.

      Plaintiff was informed that she would be reassigned from her position as principal of M.S. 118 in a letter from defendant Mazza in June 1997. The letter informed her that she would receive her new assignment as a "Junior High School Principal for the new school year." Plaintiff filed her complaint with the SDHR in July 1997. In August of that year she was reassigned not as a junior high school principal but rather to clerical duties in the District's personnel office. Based on the temporal proximity of that adverse assignment, coming approximately a month after plaintiff filed her complaint, there is a genuine issue of material fact as to whether [*8]  her assignment to clerical duties rather than as a principal was caused in part by her filing a claim with the SDHR.

      Although the disciplinary charges against Garrett and her unsatisfactory rating for the 1997-98 school year came later than her reassignment to clerical duties, there is also a genuine issue of fact as to whether those adverse employment actions were motivated at least in part by Garrett's SDHR filing.

      Because genuine issues of material fact remain, defendants' motion for summary judgment on plaintiff's retaliation claims under Title VII and NY Exec. Law 296(1)(e) is denied.

      Defendants have moved for summary judgment on plaintiff's First Amendment Retaliation claim. Plaintiff Garrett alleges that she was removed as principal of M.S. 118 and threatened with "the loss of licensure, pension and tenure" in retaliation for her speech protected by the First Amendment.

      Plaintiff rests her claim on the following alleged facts: (1) She spoke out against the Choice Program, which was implemented in 1993; (2) defendant Mazza was responsible for the Choice Program and must have been aware of her opposition to it, and (3) from 1993 to 1997, plaintiff's school was downsized; plaintiff [*9]  was given an unsatisfactory rating in 1996-97, and plaintiff was reassigned in 1997.

      Circumstantial evidence of retaliation may be found when defendants are aware that plaintiff has engaged in protected speech and defendants' challenged behavior closely follows that protected speech. See Housing Works, Inc. v. City of New York, 72 F. Supp. 2d 402, 422-23 (S.D.N.Y. 1999).

      Plaintiff's allegations have established disputed issues of fact as to the existence of retaliatory motive. Plaintiff has established protected speech of which the defendants were aware and the causal connection between her speech and her reassignment remains disputed. Accordingly, defendants' motion for summary judgment on plaintiff's First Amendment retaliation claim is denied.

      Defendants have moved for summary judgment on plaintiff's conspiracy claims under 18 U.S.C. § 241 and 42 U.S.C. § 1985(3). Plaintiff has alleged a criminal conspiracy to deprive plaintiff of her constitutional rights, allegedly involving all of the defendants, either jointly or as between the individual defendants and other actors. The federal criminal conspiracy statute,  [*10]  18 U.S.C. § 241, does not provide for a private right of action. See Powers v. Karen, 768 F. Supp. 46, 51 (E.D.N.Y. 1991), aff'd, 963 F.2d 1522 (2d Cir. 1992); John's Insulation, Inc. v. Siska Constr. Co., Inc., 774 F. Supp. 156, 163 (S.D.N.Y. 1991). Accordingly, Garrett, a private individual, may not maintain a claim under § 241, and defendants' motion for summary judgment on that claim is granted.

      Nor can Garrett state a cause of action under 42 U.S.C. § 1985(3). The statute provides no substantive rights. Rather, it "provides a remedy for violation of the rights it designates." Great American Federal Savings & Loan Assn v. Novotny, 442 U.S. 366, 372, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979). Plaintiff alleges that defendants conspired to deprive her of rights granted under both Title VII and state Human Rights law. In Novotny, the Court held that the deprivation of a right created by Title VII cannot provide the legal basis for a cause of action under § 1985(3). See id. at 372. The Court stated:



      If a violation of Title VII could be asserted [*11]  through § 1985(3), a complainant could avoid most if not all [the] detailed and specific provisions of [Title VII] ... Perhaps most importantly, the claimant could completely bypass the administrative process, which plays such a crucial role in the scheme established by Congress in Title VII.



       
      Id. at 375-76.

      Because Garrett claims that the aim of defendants' conspiracy was to discriminate against her on the basis of race in making employment decisions in violation of Title VII, she cannot assert separate claims for the same conduct under § 1985(3). Accordingly, the § 1985(3) claims based on Title VII are dismissed as to all defendants.

      Plaintiff also asserts a § 1985(3) conspiracy claim to violate New York State law, presumably New York Human Rights Law § 296 of the Executive Law. As discussed above in the context of her Title VII discrimination claim, she has established material issues of fact relating to the question of whether defendants' actions were motivated by race animus. Accordingly, defendants' motion for summary judgment on plaintiff's § 1985(3) claims for conspiracy to violate New York Human Rights Law is denied.

      Defendants have moved [*12]  for summary judgment on plaintiff's due process claim. Plaintiff, a tenured principal, claims that she was denied a property interest without due process of law when she was "suspended from her duties" as principal of M.S. 118 and was subsequently reassigned to various clerical positions within the school district. To state a Fourteenth Amendment due process claim, a plaintiff must show that she had a legitimate property interest, and that the defendants deprived her of that interest without affording her due process.

      In general, the nature and contours of a specific property interest are defined by some source independent of the Constitution--most often state law. See Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). As the Roth Court declared: "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it... He must, instead, have a legitimate claim of entitlement to it." Roth, 408 U.S. at 577. Garrett's reassignment to clerical duties did not deprive her of a protected property interest because she maintained her title and salary as principal. The non-economic [*13]  injury suffered by Garrett is traditionally an insufficient basis for a claim of deprivation of a property interest. See Kane v. Krebser, 44 F. Supp. 2d 542, 549 (S.D.N.Y. 1999). Moreover, denials of a particular work assignment concern interests which are not entitled to the protections afforded by the Due Process Clause. See Ezekwo v. New York City Health & Hosp. Corp., 940 F.2d 775, 783 (2d Cir. 1991). Accordingly, the defendants' denial of Garrett's desired work assignment at M.S. 118 did not deprive her of a property interest in violation of the Fourteenth Amendment.

      Furthermore, even if Garrett did have a property interest in her assignment to M.S. 118, she was afforded due process before she was reassigned. After Mazza held a conference with her in which she was allowed to discuss her performance, he gave Garrett notice in July that she would be reassigned in August. Garrett sought relief through the school board's grievance procedures but then voluntarily postponed her hearing. Having been provided with notice and an opportunity to be heard, Garrett cannot now claim that she was denied due process because she chose to forego process available [*14]  to her. See Aronson v. Hall, 707 F.2d 693, 694 (affirming dismissal of due process claim where plaintiff eschewed available remedies). Defendants' motion for summary judgment on plaintiff's due process property claim is accordingly granted.

      Plaintiff has moved to amend her complaint for a third time to add a claim for an unconstitutional deprivation of a liberty interest in violation of her Fourteenth Amendment due process rights. Rule 15(a) of the Federal Rules of Civil Procedure states that "leave to amend shall be freely granted when justice so requires." However, a motion for leave to amend can be denied if there is "undue delay, bad faith or dilatory motive on the part of the moving party and futility of amendment."

      Amendment in this case would be futile. Garrett cannot articulate a protectible liberty interest of which the defendants have unconstitutionally deprived her. Although the Fourteenth Amendment's Due Process Clause "guarantees more than fair process," Washington v. Glucksberg, 521 U.S. 702, 719, 138 L. Ed. 2d 772, 117 S. Ct. 2258 (1997), it only protects certain fundamental liberty interests.

      The Court indicated in Board of Regents  [*15]  v. Roth that when a state employee is discharged two constitutionally protected liberty interests might be implicated. See 408 U.S. at 573-74. First is the individual's interest in his or her "'good name, reputation, honor, or integrity.'" Id. at 573 (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437, 27 L. Ed. 2d 515, 91 S. Ct. 507 (1971)). Second is the individual's interest in avoiding "a stigma or other disability" that forecloses other employment opportunities. Id.

      In order to be stigmatized enough to be deprived of liberty, a dismissed employee must be accused of something more than unsatisfactory job performance. See Brandt v. Board of Coop. Educ. Servs., Third Supervisory Dist., 820 F.2d 41 (2d Cir. 1987). A dismissal must be accompanied by an accusation of dishonesty, illegality or immorality in order to meet Roth's requirement that the employee be stigmatized. See Capers v. Long Island R.R., 429 F. Supp. 1359, 1368 (S.D.N.Y. 1977); see also Watson v. Sexton, 755 F. Supp. 583, 592 (S.D.N.Y. 1991) (accusations of drug use are sufficiently stigmatizing, but [*16]  accusations of abuse of company sick time and lateness policy are insufficient); Nauta v. City of Poughkeepsie, 610 F. Supp. 980 (S.D.N.Y. 1985) (accusations of inefficiency and incompetence are not sufficient).

      Therefore plaintiff must show that she was dismissed amid allegations of dishonest, illegal or immoral conduct in order to be stigmatized enough to be unconstitutionally deprived of liberty. Plaintiff is required to present facts that would support such a showing for her Fourteenth Amendment claim to survive a summary judgment motion. See Brito v. Diamond, 796 F. Supp. 754, 757-58 (S.D.N.Y. 1992). Since these issues are well within the scope of the discovery which has already been conducted and plaintiff has offered no evidence that defendants have premised her reassignment on anything but generally unsatisfactory performance of her duties, amending her complaint to include a Fourteenth Amendment due process claim that she has been stigmatized by the defendants would be futile. In light of the additional factors of a delay of two years without any justification and the resultant prejudice to the defendants, leave to amend the complaint is [*17]  hereby denied.

      Plaintiff's remaining claim n2 alleges that as a result of the defendants' conduct, she has suffered severe emotional distress. Under New York law, a claim for intentional infliction of emotional distress requires a showing of: (1) Extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. See Howell v. New York Post Co., 81 N.Y.2d 115, 612 N.E.2d 699, 702, 596 N.Y.S.2d 350 (N.Y. Ct. App. 1993). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id.; see also Mariani v. Consolidated Edison Co., 172 F.3d 38 (2d Cir. 1998). Whether conduct is sufficiently atrocious as to permit recovery is a matter for the court to determine in the first instance. See Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999).

      - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


      n2 The court cannot find a cognizable cause of action in the seventh claim of plaintiff's complaint. The claim alleges loss of personal and professional standing among Garrett's friends and colleagues. Although this may allege damages to Garrett from defendants' actions, standing alone it does not constitute a cause of action.
       

      - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*18] 

      This Court finds that plaintiff's allegations of harm arising from defendants' conduct fall far short of establishing a claim for intentional infliction of emotional distress. See Stuto, 164 F.3d at 827. The plaintiff has offered insufficient evidence that she suffered severe emotional distress. Accordingly, defendants' motion for summary judgment on plaintiff's emotional distress claims is granted.

      Conclusion

      For the foregoing reasons, defendants' motion for summary judgment is granted as to all defendants on (1) plaintiff's civil rights conspiracy claims based on violations of Title VII; (2) plaintiff's due process claims, and (3) plaintiff's claims of loss of standing and emotional distress. Defendants' motion for summary judgment on plaintiff's Title VII employment discrimination and retaliation claims is hereby granted as to Mazza, Romandetto and Crew in their individual and official capacities, and is otherwise denied. Defendants' motion for summary judgment as to plaintiff's state law discrimination and retaliation claims is denied as to all defendants. The parties are directed to submit a joint pretrial order no later than March 13, 2001.

      SO ORDERED:  [*19] 

      Barbara S. Jones

      UNITED STATES DISTRICT JUDGE
       
      New York, New York
      February 13, 2001

       

      From: nyceducationnews@yahoogroups.com [mailto:nyceducationnews@yahoogroups.com] On Behalf Of nealhugh@...
      Sent: Sunday, December 03, 2006 4:29 PM
      To: nyceducationnews@yahoogroups.com
      Subject: Re: [nyceducationnews] TRIAL STARTS TOMORROW OF DISTRICT 3 PATRICIA ROMANDETT...

       

      In a message dated 12/3/2006 4:25:05 P.M. Eastern Standard Time, solarmedia@... writes:

      and the issues relate to the heart of CDS #3 between 1993-2002.

       

      what are the issues Betsy?

      I know PR.

      Thanks, Neal Hurwitz

       

    • nealhugh@aol.com
      thanks! So Betsy, what is your opinion? This seems to be an individual case... Thanks, Neal
      Message 2 of 3 , Dec 3, 2006
        thanks!
        So Betsy, what is your opinion? This seems to be an individual case...
        Thanks, Neal
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