Durick v. New York City Department of Education

202 F. Supp. 3d 277, 2016 U.S. Dist. LEXIS 109357, 2016 WL 4385908
CourtDistrict Court, E.D. New York
DecidedAugust 17, 2016
Docket15 Civ. 7441 (BMC)
StatusPublished
Cited by11 cases

This text of 202 F. Supp. 3d 277 (Durick v. New York City Department of Education) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Durick v. New York City Department of Education, 202 F. Supp. 3d 277, 2016 U.S. Dist. LEXIS 109357, 2016 WL 4385908 (E.D.N.Y. 2016).

Opinion

MEMORANDUM DECISION AND ORDER

COGAN, District Judge

This case is before me on defendant’s motion for summary judgment. For the reasons set forth below, defendant’s motion is granted as to plaintiffs discrimination claim under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., and granted in part and denied in part as to plaintiffs failure to accommodate claim under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.

BACKGROUND

The following facts are undisputed and are viewed in the light most favorable to plaintiff. Plaintiff is a special education teacher formerly employed by the Department of Education (“DOE”) at Fort Hamilton High School (“FHHS”) in Brooklyn, New York. Plaintiff began her employment with the DOE in September 1978 as a special education teacher, and was assigned to FHHS in September 1991. At the start of her career at FHHS, plaintiff was primarily assigned to teach math and science for five periods of “self-contained” classes, each with approximately 15 students. In or about 2003, until her retirement on June 30, 2014, plaintiff was assigned exclusively to teach “resource room.” Resource room is a class with eight students for every one instructor and operates as a tutorial for special education students. Plaintiffs duties included writing individualized education plans (“IEPs”), setting student goals, writing lesson plans, teaching, and administering and grading tests. Plaintiff normally taught five periods of resource room but, during the last two years of her employment, plaintiff taught six periods.

During the time period relevant to plaintiffs claims, Kaye Houlihan was the Principal of FHHS, and Christine Ciccarone was the Assistant Principal of the Instructional Support Services department and plaintiffs supervisor. The first time that plaintiff expressed her desire to retire in the somewhat near future occurred in February 2013 during a conversation with Cic-carone. At that time, a new system was being implemented which created additional paperwork, and plaintiff told Ciccarone, “Look, Cicc, I will try anything you want me to do. I just want to work five more [283]*283years until I’m 67.” According to plaintiff, Ciccarone responded, “I didn’t realize you were that old.” Plaintiff stated during her deposition that, following that conversation, Ciccarone “did a complete 180. She changed.” For example, Ciccarone made comments at a departmental meeting about having hired two young evaluators. In addition, Ciccarone made other references about age during department meetings with enough frequency that it upset plaintiff and others, to the point that plaintiff told Ciccarone that some of the older educators had contemplated bringing a class action for age discrimination. In response, Ciccarone stated that she was “very careful about not mentioning anything about the older people in the department.”

Ciccarone made no other comments to plaintiff or to others about plaintiffs age. Houlihan did not make comments about plaintiffs age or about anyone else’s age in plaintiffs presence, and plaintiff did not witness any other person at FHHS make age-related remarks besides Ciccarone.

Ciccarone observed plaintiffs lessons for the 2012-13 school year, which culminated in an annual performance review rating of “Satisfactory.” Ciccarone provided written feedback to plaintiff which commended her on discussing dates and tutoring with her students, incorporating study skills into her curriculum, and maintaining contact ■with students’ parents. Ciccarone also suggested areas in which plaintiff could improve, such as keeping consultation logs, revisiting weekly plans with students at the end of each week to allow students to reflect, and to rotating students’ seating arrangements to ensure equal access to plaintiff.

Beginning with the 2013-14 school year, all DOE schools, including FHHS, were required to adopt a new teacher evaluation system called “Advance.” Under Advance, teachers were to receive more frequent classroom observations than under the previous evaluation system with the aim of providing timely feedback and targeted support. Teachers were required to choose between two observation options, and would be scored in 22 teaching components on a four-point scale, with 1 being “Ineffective,” 2 being “Developing,” 3 being “Effective,” and 4 being “Highly Effective.”

Plaintiff chose the observation option under Advance that included a minimum of six informal, unannounced observations, each lasting at least 15 minutes. Ciccarone and Houlihan observed plaintiffs lessons and evaluated plaintiff under the Advance system using an evaluation form. Plaintiffs performance fluctuated throughout the 2013-14 school year. They rated plaintiff “Effective” on certain teaching components and rated “Developing” or “Ineffective” on others, with ratings for some components sometimes changing from lesson to lesson. Ciccarone and Houlihan also provided written feedback for these lessons, beginning with what appears to be the first informal observation of plaintiffs lesson on November 14, 2013, and ending with an observation on May 30, 2014. Plaintiff received an overall rating of “Developing” for the 2013-14 school year.

During the 2013-14 school year, plaintiff made requests to Houlihan, both personally and through representatives, for accommodations for the severe osteoarthritis plaintiff suffered in her knees. The first request was made by plaintiffs doctor, Dr. Bruce Garner, who sent a letter on October 9, 2013, to Houlihan requesting that plaintiff be excused, due to her disability, from participation in all Are drills involving stairs. Plaintiff, was not excused from Are drills altogether, but was permitted to find another teacher who would accompany plaintiffs class during fire drills so that plaintiff could exit the building on her own and at her own pace. Plaintiff found a [284]*284teacher who accompanied her students, allowing her to use the elevator and otherwise take her time during fire drills. At one time, plaintiff also had asked to use a designated handicapped room during fire drills, but that request was denied.

On or about March 21, 2014, plaintiffs union, on plaintiffs behalf, requested that plaintiff be assigned a parking space in the rear of FHHS. Plaintiff did not submit medical documentation in support of the request at that time, but believed there was medical documentation in her file. This would have included the documentation that she had submitted in relation to her request to be excused from fire drills. In addition, plaintiff had a handicapped parking permit and placard from the Parking Permits for People with Disabilities of the NYC Department of Transportation, which requires a medical assessment every other year.

The parking spot request was denied as unreasonable. Although there were no spaces designated as handicapped parking in the rear of the building, which also served as a delivery area, there were parking spaces. After the request was denied, plaintiff went to Houlihan to again ask for an accommodation, having heard that other employees had received parking in the rear of the school, and believing that Houl-ihan herself parked there. Plaintiff told Houlihan that she would like to park in the back of the school in one of the spaces, which would allow her to avoid steps altogether and to use her rollator.1

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Cite This Page — Counsel Stack

Bluebook (online)
202 F. Supp. 3d 277, 2016 U.S. Dist. LEXIS 109357, 2016 WL 4385908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durick-v-new-york-city-department-of-education-nyed-2016.