Governale v. Cold Spring Harbor Central School District et al

Filing 45

ORDER granting in part and denying in part DE 29 Motion for Summary Judgment. For the reasons set forth in the attached Order, Defendants' motion for summary judgment is granted in part and denied in part. The motion is denied as to Plaintiff's ADA and NYSHRL claims and granted as to her 42 U.S.C. § 1983 claim. Ordered by Magistrate Judge Steven I. Locke on 9/29/2017. (Budhu, Ryan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
ANN MARIE GOVERNALE,
Plaintiff,

MEMORANDUM AND
ORDER
14-CV-2689 (JMA) (SIL)

-againstCOLD SPRING HARBOR CENTRAL
SCHOOL DISTRICT, JAY MATUK,
JUDITH WILANSKY, DENISE
CAMPBELL, and DIANE WALSH,
(in their Official and Individual Capacities
Pursuant to § 1983 and
NYEL §§ 290 et. seq.).
Defendants.
--------------------------------------------------------------x
LOCKE, Magistrate Judge:

Presently before the Court is a motion for summary judgment submitted by
Defendants,

Cold

Spring

Harbor

Central

School

District

(“Cold Spring Harbor” or “the District”), Jay Matuk (“Matuk”), Judith Wilansky
(“Wilansky”),

Denise

Campbell

(“Campbell”),

and

Diane

Walsh

(“Walsh”)

(collectively “Defendants”). See Docket Entry (“DE”) [29]. By way of Complaint filed
April 29, 2014, Plaintiff Ann Marie Governale (“Plaintiff” or “Governale”), brings this
action alleging claims pursuant to: (1) the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101 et seq.; (2) 42 U.S.C. § 1983; and (3) the New York State Human
Rights Law (“NYSHRL”) § 290 et. seq. See Complaint (Compl.”), DE [1]. On March
4, 2016, Defendants filed their motion pursuant to Federal Rule of Civil Procedure
(“Fed. R. Civ. P.”) 56(a) (“Rule 56”) for summary judgment, which Plaintiff opposes.
See DE [29], [35]. On May 10, 2017, Judge Azrack referred the motion to this Court

for a Report and Recommendation as to whether it should be granted. See DE [41].
On June 15, 2017, pursuant to 28 U.S.C. § 636(c), the parties filed an executed
Notice, Consent, and Reference of a Civil Action to a Magistrate Judge, indicating
their intention to have this Court “conduct all proceedings and order the entry of a
final judgment” on the motion, which Judge Azrack So Ordered on June 19, 2017.
See DE [43, 44]. For the reasons set forth herein, Defendants’ motion is granted in
part and denied in part.
I.

RELEVANT FACTUAL BACKGROUND
The following facts are taken from the parties’ pleadings, deposition

transcripts, affidavits, exhibits and respective Rule 56.1 statements.

Unless

otherwise noted, the following facts are not in dispute.
Plaintiff began working at Cold Spring Harbor as a Special Education Leave
Replacement Teacher (“Leave Replacement Teacher”) in the Special Education
Department during the 2008-2009 school year. See EEOC Affidavit of Ann Marie
Governale (“Governale Affidavit”), DE [31-33], at 1.1 During Governale’s first year,
she was assigned to teach Math, English, and Resource Room, and work mostly with
special education students. See Governale Deposition (“Governale Dep.”), DE [37-1],
at 43.

Defendants Diane Walsh, the Chairperson of the Special Education

Department, Denise Campbell, the Director of Special Education, and Jay Matuk, the
Principal at Cold Spring Harbor, had supervisory authority over Plaintiff.
See Deposition of Denise Campbell (“Campbell Dep.”), DE [37-2] at 11-16. Governale

1

Lacking numbered paragraphs, the Court cites to Governale’s affidavit by way of pagination.

2

received positive performance evaluations and made no complaints concerning the
treatment of special education students during her first year. See id. at 38, 44.
Plaintiff was then rehired for a one-year appointment during the 2009-2010
school year as a Secondary Special Education Teacher. See Governale Affidavit at 2.
In the spring of 2010, Governale applied, but was not hired, for a probationary
position as an English Teacher at Cold Spring Harbor.

See id. at 2-3. Instead,

Governale, once again, worked with mostly special education students and received
a positive performance evaluation for the 2009-2010 school year. See Campbell Dep.
at 39, 62. Plaintiff does not recall raising any issues and, “for the most part,” was
satisfied with the special education services provided for students during her second
year. See Governale Dep. 62- 63.
Governale was hired again for another one-year appointment, for the 20102011 school year as a Leave Replacement Teacher assigned to teach English classes
to special education students. See Governale Affidavit at 3; Governale Dep. at 82-83.
During this school year, Governale, along with all the other teachers in the Special
Education Department, complained to Walsh “of the difficulty getting [lesson] plans
from teachers, and that it was seriously affecting our ability to meet the
[Individualized Educational Program (“IEP”)] accommodations of the special
education students.”

Id.

Despite the complaint, Plaintiff received a positive

performance evaluation for the 2010-2011 school year. See id. at 39-40.
Governale, once again, was hired as a Leave Replacement Teacher for the
2011-2012 school year. See id. at 104-05; see also Governale Aff. at 5. During that

3

school year, Plaintiff made several complaints about the special education services
offered at the school. See Governale Dep. at 108. Governale alleges that, during the
2011-2012 school year, she complained to Walsh about Cold Spring Harbor’s New
York State Academic Intervention Services Program (“AIS”), which can be provided,
and

applies,

to

both

special

education

and

general

education

students.

See Governale Aff. at 6; Campbell Dep. at 32-34, 82-83. Plaintiff also states that she
voiced concerns to Walsh about Peter Gregorchuk, a Special Education teacher, who
was allegedly helping special education students cheat on their exams, providing
students with test answers. See Governale Dep. at 117-18. Further, Governale also
advised Walsh that a teacher assistant (“TA”) named Christine Barrese was writing
research papers for special education students. See id. at 124-25. Plaintiff admits
that, at the time, other teachers also complained about cheating at Cold Spring
Harbor. See id. at 97. Moreover, during the school year, Governale once again voiced
her concern that teachers were not following students’ IEPs and that the special
education students were not being served by the programs offered. See id. at 133-35,
138-39. Plaintiff received a positive performance evaluation for the 2011-2012 school
year. See Governale Aff. at 7-8. Governale admits that during her first four years at
Cold Spring Harbor she had no problems with how she was treated or any problems
with the District’s administration. See Governale Dep. at 390.
The District alleges that there were no positions available for Plaintiff at Cold
Spring Harbor for the 2012-2013 school year except for a one-year TA position.
See, e.g., id. ¶ 45. In July of 2012, Plaintiff was not under contract with Cold Spring

4

Harbor and was free to obtain employment for the 2012-2013 school year with any
other school district. See Email from Denise Campbell to Ann Marie Governale,
DE [31-9]. To that end, Campbell provided Plaintiff with leads for teaching jobs in
other districts. See Campbell Dep. at 49. In response to Governale’s request for help,
Matuk also informed her that he would contact the Principal of Connetquot High
School on her behalf. See Email from Ann Marie Governale to Jay Matuk, DE [31-10].
However, as Plaintiff was unable to get a job with another district for the 2012-2013
school year, she accepted a job as a TA at Cold Spring Harbor. See General Municipal
Law § 50(h) Hearing of Ann Marie Governale, DE [31-4], at 49-50. The TA position
paid a year salary of $27,995.00, which constituted a pay cut of more than $70,000.
See Ann Marie Governale TA Position Offer Letter, DE [37-4].
Plaintiff alleges that she increased her advocacy, during the 2012-2013 school
year, for the special education learning disabled students at the District.
See Governale Dep. at 337-38. Specifically, during that year, Governale alleges that
she complained, or increased her complaints, regarding the following:
(1) that kids with learning disabilities that were supposed
to be receiving resource room as per their IEP’s were pulled
and placed in learning center with plaintiff; (2) that
plaintiff did not agree with the way that Diane Walsh was
running the department and thought that it did not serve
the needs of the special education students; (3) that the
special education students were being deprived of
appropriate services and consistent support; (4) that the
special education students were dumped on the teaching
assistants and that it was not appropriate for meeting the
needs of the students; (5) that there were not sufficient AIS
programs in place for special education students; (6) that
there was a lack of support and instruction offered to
special education students; (7) that the learning center was
5

not an appropriate placement for students that had been
assigned to the resource room; and (8) that special
education students were not receiving what they were
entitled to.
Plaintiff’s Counterstatement to Defendants’ Statement of Facts Pursuant to Local
Rule 56.1 and Plaintiff’s Statement of Additional Facts Pursuant to Local Rule 56.1(b)
(“Plaintiff’s Counterstatement”), DE [36], ¶ 103; see also Governale Dep. at 202-04,
214-16, 220-23, 235, 241, 246-47, 342-46, 352-53, 380-81. Plaintiff further made
complaints regarding the issue of TAs improperly providing AIS services.
See Governale Dep. at 356-57.

Governale acknowledges that other TAs made

complaints, but alleges that no other teacher or TA advocated as strongly and
frequently as she did. See id. at 357. Further, Plaintiff raised the issue that the
duties she was tasked with as a TA were outside the parameters of the position.
See id. at 235. By December 2012, Plaintiff had exceeded all her personal and sick
days for the 2012-2013 school year. See Human Resources Notice, DE [31-24]. In
February 2013, Governale alleges that she was told that there would not be a position
available to her for the following school year due to budget cuts. See id. at 362.
During the 2012-2013 school year, Governale also had alleged issues regarding
lateness and conflicts with other staff members.

See Campbell Dep. at 98-100.

Plaintiff testified about two incidents with TA Posey Heim (“Heim”). See Governale
Dep. at 177-78, 260-62. With regard to the first incident, Governale testified that,
while she was escorting a disabled student to class, she was confronted about her
lateness by Heim, who stated “[y]ou are never where you are supposed to be.” Id. at
118. Further, Plaintiff testified about another dispute where she refused to make a
6

photocopy for Heim and Plaintiff stated that making photocopies “was not [her] job.”
Id. at 254-57. Denise Campbell testified that, in March or April, she had a meeting
with Plaintiff and expressed concern over her attendance issues as well as the
arguments that Plaintiff had with her colleagues. See Campbell Dep. at 98-100.
Campbell testified that she ultimately encouraged Plaintiff to resign. See id.
On or about April 19, 2013, Defendant Wilansky wrote to Plaintiff to inform
her that she was recommending termination of her employment to the Board of
Education for the following reasons: (1) insubordination; (2) unprofessional behavior
in the presence of students and staff; and (3) frequent tardiness. See Letter from
Judith Wilansky to Ann Marie Governale, DE [31-29]. On April 25, 2013, Defendants
were served with Plaintiff’s Notice of Claim. See Notice of Claim, DE [31-25]. On May
3, 2016, Plaintiff wrote to Matuk informing him that she believed that she was “being
subjected to adverse treatment, increased supervision and an uncomfortable and
hostile work environment as a result of [her] engagement in protected activity. [She]
request[ed] that this behavior stop immediately.”

See Email from Ann Marie

Governale to Jay Matuk, DE [31-30]. On or about May 10, 2013, Plaintiff was notified
that her employment at Cold Spring Harbor would be terminated effective June 30,
2013. See Email from Jay Matuk to Ann Marie Governale, DE [31-31].
II.

PROCEDURAL HISTORY
By way of Complaint filed April 29, 2014, Governale brought this action

alleging claims under the ADA,2 42 U.S.C. § 1983; and the New York State Human

Consistent with the lack of individual liability in the retaliation provision of the ADA, Plaintiff brings
this claim against Defendant Cold Spring Harbor Central High School District only and not the
2

7

Rights Law (“NYSHRL”) § 290 et. seq.3 See Complaint (Compl.”), DE [1]. Defendants
interposed an Answer which was filed on May 29, 2014 and amended on May 7, 2015.
See Answer, DE [4]; Amended Answer, DE [21]. Defendants now move for summary
judgment, dismissing this case in its entirety. Plaintiff opposes. See DE [29], [35].
III.

LEGAL STANDARD ON A MOTION FOR SUMMARY JUDGMENT
Under Rule 56, summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. Rule
56(c) deems a fact “material” when its resolution “might affect the outcome of the suit
under the governing law.” Murray v. Town of N. Hempstead, 853 F. Supp. 2d 247,
257–58 (E.D.N.Y. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505, 2510 (1986)). The evidence alleged to substantiate a “genuine issue”
must be “such that a reasonable jury could return a verdict for the nonmoving party.”
Id. Accordingly, an issue will be deemed genuine when “[t]he inferences to be drawn
from the underlying affidavits, exhibits, interrogatory answers, and depositions must
be viewed in the light most favorable to the party opposing the motion.” Cronin v.
Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v. Diebold,
Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994 (1962) (per curiam); Ramseur v. Chase
Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)).

individually named Defendants. See Compl. ¶ 1; see also Spiegel v. Schulmann, 604 F.3d 72, 79
(2d Cir. 2010) (finding that the retaliation provision of the ADA does not provide for individual
liability).
3 The NYSHRL claim is brought against the District and the individually named Defendants.

8

If the moving party meets its burden, then it is incumbent upon the nonmoving
party to put forth in its opposition “specific facts showing that there is a genuine issue
for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S. Ct. 1348, 1356 (1986) (quoting Fed. R. Civ.P. 56(e)). Such a showing must be
specified and articulated and must provide more than a “metaphysical doubt” that
the moving party’s evidence warrants judgment in its favor. Matsushita, 475 U.S. at
586, 106 S. Ct. at 1356; see Gallo v. Prudential Residential Servs., 22 F.3d 1219, 122324 (2d Cir. 1994) (citations omitted) (holding summary judgment is appropriate when
the moving party can show that “little or no evidence may be found in support of the
nonmoving party’s case.”).
IV.

DISCUSSION
Plaintiff alleges that, pursuant to the ADA, Defendants took unlawful

retaliatory action against her for her protected activity, which, inter alia, took the
form of advocacy on behalf of special education students. Governale also claims,
pursuant to 42 U.S.C. § 1983, that she received differential treatment based on
constitutionally impermissible considerations.

Applying the standards set forth

above, and for the reasons set forth below, Defendants’ motion is granted as to
Plaintiff’s Section 1983 claim and denied as to the ADA and NYSHRL claims.
A. ADA Retaliation Claim
Governale establishes sufficient questions of fact so to warrant a trial on her
ADA retaliation claim. The ADA provides that “[n]o covered entity shall discriminate
against a qualified individual with a disability because of the disability of such
individual in regard to job application procedures, the hiring, advancement, or
9

discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a). “The statute defines
‘discriminate’ to include ‘not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability.’”
Felix v. N.Y. City Transit Auth., 324 F.3d 102, 104 (2d Cir. 2003) (quoting 42 U.S.C.
§ 12112(b)(5)(A)). It is well-established that advocacy on behalf of the rights of the
disabled is protected activity under the ADA. See, e.g., Weixel v. Bd. of Educ. of City
of New York, 287 F.3d 138, 149 (2d Cir. 2002) (holding that parent’s application for
an accommodation for her disabled school-aged daughter was protected advocacy).
To survive a motion for summary judgment, a plaintiff bringing retaliation
claims must satisfy the three-step McDonnell Douglas burden shifting framework.
See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (“Claims for
retaliation [under the ADA] are analyzed under the same burden-shifting framework
established for Title VII cases.”) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817 (1973)); see also Castro v. City of N.Y., 24 F.Supp.3d 250, 269
(E.D.N.Y. 2014) (finding that plaintiff’s retaliation claim under the ADA failed
because complaints to his uncle were not considered protected activity). Initially, the
plaintiff must establish a prima facie claim of retaliation claim. See Teglia, 313 F.3d
at 719. The plaintiff’s burden in this regard is de minimis, and the court’s role in
evaluating a summary judgment motion is to determine only whether proffered
admissible evidence would be sufficient to permit a rational finder of fact to infer a

10

retaliatory motive.

Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (internal

quotation marks and citations omitted).
After establishing a prima facie case, the burden shifts to the defendant to
articulate a legitimate, non-discriminatory reason for the adverse employment
action. Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). Once the defendant
provides such a reason, the final burden is on the plaintiff to establish that the
defendant’s reason is in fact a pretext for unlawful conduct. See Abrams v. Dep’t of
Pub. Safety, 764 F.3d 244, 251 (2d Cir. 2014). “Although intermediate evidentiary
burdens shift back and forth under this framework, ‘[t]he ultimate burden of
persuading the trier of fact that the defendant intentionally [retaliated] against the
plaintiff remains at all time with the plaintiff.’” Edwards v. Brookhaven Sci. Assocs.,
LLC, 390 F. Supp. 2d 225, 233 (E.D.N.Y. 2005) (citing Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000) (internal quotations
omitted)).
1.

Prima Facie Retaliation

To state a prima facie retaliation claim under the ADA, a plaintiff must show
that: “(1) she was engaged in protected activity; (2) the employer was aware of that
activity; (3) the employee suffered a materially adverse action; and (4) there was a
causal connection between the protected activity and that adverse action.”
Harper v. Brooklyn Children’s Ctr., No. 12-CV-4545, 2014 WL 1154056, at *3
(E.D.N.Y. Mar. 20, 2014) (quotation marks omitted) (emphasis in original);
Reynolds v. Gallagher Bassett Serv., Inc., No. 5:13-CV-1475, 2014 WL 4771866, at

11

*10 (N.D.N.Y. Sept. 24, 2014) (“Courts evaluate retaliation claims using the same
framework, whether the claims are brought under Title VII or the ADA.”). The Court
considers each element in turn.
a. Protected Activity
Plaintiff has presented sufficient evidence to establish a material issue of fact
that she engaged in protected activity. A “‘protected activity’ refers to action taken
to protest or oppose statutorily prohibited discrimination.” Cruz v. Coach Stores, Inc.,
202 F.3d 560, 566 (2d Cir. 2000). Generalized complaints are insufficient. See Rojas
v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 108 (2d Cir. 2011). Complaints
must be sufficiently specific to make clear that the employee is complaining about
conduct prohibited by the applicable discrimination statute.

See id.

Protected

activities can include “making complaints to management, writing critical letters to
customers, protesting against discrimination by industry or by society in general, and
expressing support of co-workers who have filed formal charges.” Sumner v. United
States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). Protected activity may also take
the form of either formal or informal complaints. See Hernandez v. Int’l Shoppes,
LLC, 100 F. Supp. 3d 232, 267 (E.D.N.Y. 2015).
A plaintiff need not establish an actual violation under the ADA, but instead
must have “possessed a good faith, reasonable belief that the underlying employment
practice was unlawful under the statute.” Galdieri-Ambrosini v. Nat’l Realty & Dev.
Corp., 136 F.3d 276, 292 (2d Cir. 1998) (internal quotation marks omitted). “To the
extent that an employee complains about perceived ‘unfair’ treatment relating to job

12

responsibility, hiring practices, or corporate policy, but fails to link the treatment to
unlawful discrimination or to his protected status, he fails to establish that he was
engaged in protected activity.” Penberg v. HealthBridge Mgmt., 823 F. Supp.2d 166,
191 (E.D.N.Y. 2011) (citing, Velasquez v. Goldwater Memorial Hosp., 88 F. Supp.2d
257, 264 (S.D.N.Y. 2000)) (finding that general complaints about corporate policy
without linking it to plaintiff’s status are insufficient to establish “protected activity”
under Title VII). “The reasonableness of the plaintiff’s belief is to be assessed in light
of the totality of the circumstances.” Galdieri-Ambrosini, 136 F.3d at 292.
Plaintiff has adequately established that she engaged in protected activity on
behalf of her special education students. According to Plaintiff, she complained about
inadequate services being provided to special education students. See Governale Dep.
at 223-24, 246-47, 348-50. In addition, she complained about Peter Gregorchuk
helping special education students cheat on exams and Christine Barrese writing
research papers on behalf of those students. See id. at 17-18, 24-25. These complaints
constitute protected activity under the ADA.
b. Employer Awareness
Plaintiff has also established material issues of fact as to whether Cold Spring
Harbor was aware of her protected activity.

“[I]nformal complaints must be

sufficiently specific to make it clear that the employee is complaining about conduct
prohibited by [ . . . ] law.”

Benedith v. Malverne Union Free Sch. Dist.,

38 F. Supp. 3d 286, 322–23 (E.D.N.Y. 2014). “[I]mplicit in the requirement that the
employer have been aware of the protected activity is the requirement that it

13

understood, or could reasonably have understood, that the plaintiff’s opposition was
directed at [prohibited conduct]. ” Galdieri-Ambrosini, 136 F.3d at 292. In this
regard, “particular words such as ‘discrimination’ are [ . . . ] not required to put an
employer on notice of a protected complaint.” Kelly v. Howard I. Shapiro & Assocs.
Consulting Eng’rs, P.C., 716 F.3d 10, 17 (2d Cir. 2013).
Here, during the 2012-2013 school year, Plaintiff states that she complained
directly to Matuk about the lack of instruction and services offered to special
education students at the high school. See Governale Dep. at 246-47. She also
allegedly made numerous complaints to Campbell throughout the 2012-2013 school
year about the lack of special education services provided to students in the District.
See id. at 223-24, 348-50. Therefore, she has established that Defendants were aware
of, and reasonably understood that, her opposition was directed at prohibited conduct.
See Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007) (describing the employer
awareness requirement as satisfied where plaintiff “complained directly” about
discrimination to another “employee whose job it was to investigate and resolve such
complaints”). Accordingly, Governale has sufficiently established genuine issues of
material fact that the District was aware of her protected activity.
c. Materially Adverse Action
Governale has established triable issues of fact as whether she suffered a
materially adverse action. In the retaliation context, Courts have found an action to
be “materially adverse” where “it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.”

14

See Harper, 2014 WL

1154056, at *3 (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68, 126 S. Ct. 2405, 2415 (2006)). “This definition covers a broader range of
conduct than does the adverse-action standard for claims of discrimination[;] [ . . . ]
the antiretaliation provision, unlike the substantive [discrimination] provision, is not
limited to discriminatory actions that affect the terms and conditions of employment.”
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (addressing
the standard under Title VII) (internal citation omitted). As the Supreme Court has
explained:
[T]he significance of any given act of retaliation will often
depend upon the particular circumstances. Context
matters. The real social impact of workplace behavior often
depends on a constellation of surrounding circumstances,
expectations, and relationships which are not fully
captured by a simple recitation of the words used or the
physical acts performed.
Burlington Northern & Santa Fe Ry. Co., 548 U.S. at 68, 126 S. Ct. at 2415 (internal
citations and quotations omitted). As to the adverse employment actions, Governale
alleges that: (1) Defendants began documenting her whereabouts throughout the
building while not documenting others; (2) she was paid less than other TA’s for
providing individualized instruction; (3) she was assigned more work and students
than other TA’s; (4) Plaintiff’s pay was docked for taking time off while others were
not; and (5) she was ultimately terminated from Cold Spring Harbor. See Governale
Dep. at 266-67, 363-65, 366, 368, 393.
Governale’s alleged changed conditions of her employment establish issues of
fact as to whether she suffered materially adverse actions as retaliation for engaging

15

in protected activity. Initially, while certain examples of alleged adverse action might
not, on their own, rise to the level of actionable conduct, the totality of conduct
alleged, culminating in Plaintiff’s termination, is sufficient to defeat the motion.
See Scafidi v Baldwin Union Free School Dist., 295 F.Supp.2d 235, 239 (E.D.N.Y.
2003) (“[Although] close monitoring may cause an employee embarrassment or
anxiety, such intangible consequences are not materially adverse alterations of
employment conditions.”) (internal citations omitted); see also Terry v. Ashcroft, 336
F.3d 128, 138 (2d Cir. 2003) (“Examples of materially adverse changes include
‘termination of employment, a demotion evidenced by a decrease in wage or salary, a
less distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices . . . unique to a particular situation.’”). Accordingly,
the Court concludes that Plaintiff has successfully established a material issue of fact
as to whether she sustained an adverse change in the terms and condition of her
employment.
d. Causal Connection
Governale has also presented sufficient evidence as to allow a reasonable jury
to infer that her engaging in protected activity caused her materially adverse
employment action. The final requirement to state an ADA retaliation claim is that
“[a plaintiff] must show that the allegedly adverse actions occurred in circumstances
from which a reasonable jury could infer retaliatory intent.” Treglia, 313 F.3d at 720.
“A causal connection in retaliation claims can be shown either ‘(1) indirectly, by
showing that the protected activity was followed closely by discriminatory treatment,

16

or through other circumstantial evidence such as disparate treatment of fellow
employees who engaged in similar conduct; or (2) directly, through evidence of
retaliatory animus directed against the plaintiff by the defendant.’” Littlejohn v. City
of New York, 795 F.3d 297, 319 (2d Cir. 2015) (quoting Gordon v. N.Y.C. Bd. of Educ.,
232 F.3d 111, 117 (2d Cir. 2000)). The Second Circuit has held that a “close temporal
relationship between a plaintiff's participation in protected activity and an
employer's adverse actions can be sufficient to establish causation.” Treglia, 313 F.3d
at 720.
Governale has sufficiently established issues of fact as to retaliatory animus
as her protected activity was followed closely in time by adverse treatment. It is
undisputed that during the 2008-2009, 2009-2010, and 2010-2011 school years,
Plaintiff did not have any complaints about the special education department,
received positive performance evaluations and was invited back as a full-time leave
replacement each year. See Governale Dep. at 60-63. During the 2011-2012 school
year, however, Governale began increasing her engagement in protected activity by
advocating to her supervisor, and she was told that there was no teaching position
available at the end of the year, and was given a TA position at a substantially
reduced salary. See id. at 108-112. Further, during the 2012-2013 school year,
Plaintiff increased her advocacy for the special education students, and was
subsequently terminated. See id. The Court, therefore, finds that Plaintiff has put
forth material issues of fact as to a causal relationship between the protected
activities and the adverse actions alleged sufficient to establish the fourth element of

17

a prima facie case. Accordingly, Plaintiff has satisfied her de minimis burden, which
now shifts to Defendants to articulate a legitimate non-discriminatory reason for
Plaintiff’s adverse employment action.
2.

Non-discriminatory Reason

Cold Spring Harbor has sufficiently proffered a legitimate non-discriminatory
reason for Governale’s adverse employment action. Once the plaintiff establishes a
prima facie case, the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its actions “which, if believed by the trier of fact, would
support a finding that unlawful discrimination [or retaliation] was not the cause of
the employment action.” Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 221 (2d
Cir. 2004) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742,
2747 (1993)). “The defendant need not persuade the court that it was actually
motivated by the proffered reasons.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 254 (1981). Thus, “[t]he defendant’s burden of production [ ] is not a demanding
one . . . . ” Bickerstaff v. Vassar Coll., 196 F.3d 435, 446 (2d Cir. 1999).
Here, Defendants adequately articulate that Plaintiff’s lateness and incidents
with colleagues provided a legitimate reason for her termination. Harrison v. Admin.
Review Bd. of U.S. Dep’t of Labor, 390 F.3d 752, 759 (2d Cir. 2004) (“‘Insubordination
and conduct that disrupts the workplace are legitimate reasons for firing an
employee,’ and an employer may discharge an employee for inappropriate forms of
complaint even if the complaint itself has substance.”) (quoting Matima v. Celli, 228
F.3d 68, 79 (2d Cir. 2000)); see also Forrester v. Prison Health Servs., No. 12 CV 363,

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2015 WL 1469521, at *15 (E.D.N.Y. Jan. 5, 2015), report and recommendation
adopted as modified, No. 12-CV-363 NGG, 2015 WL 1469737 (E.D.N.Y. Mar. 30,
2015), aff’d sub nom. Forrester v. Prison Health Servs., Inc., 651 F. App’x 27 (2d Cir.
2016) (“Misconduct, excessive lateness, and poor performance are legitimate, nondiscriminatory reasons for defendants’ adverse actions.”) (citing Jones v. Yonkers
Pub. Schs., 326 F.Supp.2d 536, 544 (S.D.N.Y. 2004)). Governale admits to having a
dispute with another coworker over photocopies. See Governale Dep. at 177-78, 26062. Additionally, Campbell testified as to additional incidents with other colleagues,
including an argument between Plaintiff and her supervisor, Walsh, as well as other
issues regarding lateness and attendance.

See Campbell Dep. at 98-100, 106.

Accordingly, Defendants have adequately established Plaintiff’s lateness, attendance
problems, and incidents with coworkers and supervisors as legitimate non-retaliatory
reasons for her adverse employment action sufficient to shift the burden back to
Governale to demonstrate that Defendant’s proffered reason for her termination is a
pretext for unlawful retaliatory conduct.
3.

Pretext

Plaintiff has also established material issues of fact that would allow a
reasonable juror to infer pretext. “If the defendant satisfies its burden, the plaintiff
must adduce evidence from which a reasonable factfinder could conclude that the
defendant’s stated reason was pretext for retaliation.” Spaulding v. New York City
Dep’t of Educ., No. 12-Civ-3041, 2015 WL 12645530, at *51 (E.D.N.Y. Feb. 19, 2015),
report and recommendation adopted, No. 12 CIV. 3041, 2015 WL 5560286 (E.D.N.Y.

19

Sept. 21, 2015). It is not sufficient, however, for a plaintiff merely to show that [s]he
satisfies “McDonnell Douglas’ minimal requirements of a prima facie case” and to put
forward “evidence from which a factfinder could find that the employer’s explanation
. . . was false.” James v. N.Y. Racing Ass’n, 233 F.3d 149, 157 (2d Cir.2000). Instead,
the key is whether there is sufficient evidence in the record from which a reasonable
trier of fact could find in favor of plaintiff on the ultimate issue, that is, “whether the
record contains sufficient evidence to support an inference of discrimination.” Valenti
v. Massapequa Union Free Sch. Dist., No. 03-CV-1193, 2006 WL 2570871, at *7
(E.D.N.Y. Sept. 5, 2006) (internal citation omitted).
After the Supreme Court’s decision in Univ. of Texas Sw. Med. Ctr. v. Nassar,
––– U.S. ––––, 133 S.Ct. 2517 (2013), it is an open question in this Circuit whether
an ADA plaintiff must now show that the plaintiff’s protected activity, in a retaliation
claim was a but-for cause of the adverse employment action.4 See Anderson v. Nat’l
Grid, PLC, 93 F. Supp. 3d 120, 141 n.15 (E.D.N.Y. 2015) (citing Castro v. City of New
York, 24 F.Supp.3d 250, 269 n. 34 (E.D.N.Y. 2014) (“[T]he question of whether the
heightened, ‘but-for’ standard of causation for Title VII retaliation claims . . . applies
to claims asserted under the ADA, is one that has not yet been addressed by the
Second Circuit.”)). In Nassar, the Supreme Court held that, for a Title VII retaliation
claim, unlike with discrimination claims, a plaintiff must establish that the allegedly

Prior to Nassar, Courts in this Circuit applied a motivating factor standard for causation.
See, e.g., Campbell v. New York City Transit Auth., 93 F. Supp. 3d 148, 174 (E.D.N.Y. 2015), motion
for relief from judgment denied, No. 11-CV-2827, 2015 WL 7455842 (E.D.N.Y. Nov. 23, 2015), and aff’d,
662 F. App’x 57 (2d Cir. 2016), cert. denied, 137 S. Ct. 1595, 197 L. Ed. 2d 722 (2017), reh’g denied, 137
S. Ct. 2236, 198 L. Ed. 2d 675 (2017) (addressing the evolving standard).
4

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unlawful retaliation “was a ‘but-for’ cause of the adverse action, and not simply a
‘substantial’ or ‘motivating’ factor in the employer's decision.” ––– U.S. at ––––, 133
S.Ct. at 2533. The Court reached this conclusion because, among other reasons, the
anti-retaliation provision of Title VII “makes it unlawful for an employer to take
adverse employment action against an employee ‘because’ of certain criteria.”
Nassar, ––– U.S. at ––––, 133 S.Ct. at 2528.
The ADA’s provision against retaliation mirrors the language of Title VII,
including its explicit use of the word “because.” See 42 U.S.C. § 12203(a). As a result,
several other circuits have applied a but-for standard causation for ADA claims as
well. See Frazier-White v. Gee, 818 F.3d 1249, 1258 (11th Cir. 2016), cert. denied, 137
S. Ct. 592 (2016) (“The third element [of an ADA retaliation case] requires a showing
of but-for causation.”); E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015)
(“Discrimination here means retaliation—that ‘but for’ an employee’s statutorily
protected activity the employer would not have taken the “adverse employment
action.”); T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 473
(9th Cir. 2015), cert. denied sub nom. San Diego Unified Sch. Dist. v. T.B., 136 S. Ct.
1679 (2016) (“The but-for causation standard therefore applies equally to retaliation
under Titles I and II.”). Therefore, in the absence of authority from the Second
Circuit, the Court applies the but-for standard.
Applying this standard, Plaintiff has established material issues of fact as to
whether Defendants’ reasons are pretextual, and that but-for her protected activity,
she would not have been subject to adverse conduct culminating in her termination.

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According to Governale, during the 2008-2009, 2009-2010, and 2010-2011 school
years, she made no complaints, received positive employee evaluations, and was
rehired each year. See Governale Dep. at 60-63. During the 2011-2012 school year,
she made several complaints about special education services. See id. at 108-112.
Then during the 2012-2013 school year, her complaints about special education
services increased and included allegations of improper conduct by certain teachers
providing these services. See id. at 268-69, 337-38. It was only after these complaints
that she started receiving increased scrutiny, negative feedback, and was ultimately
terminated. See, e.g., id. at 203, 268, 365.
Moreover, there are contradictions within the testimony concerning
Defendants’

proffered

legitimate,

non-retaliatory

reasons

for

Governale’s

termination. See Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013) (“A
plaintiff may prove that retaliation was a but-for cause of an adverse employment
action

by

demonstrating

weaknesses,

implausibilities,

inconsistencies,

or

contradictions in the employer’s proffered legitimate, non-retaliatory reasons for its
action.”).

From such discrepancies, a reasonable juror could conclude that

Defendants’ explanations were a pretext for a prohibited reason. See, e.g., EEOC v.
Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (collecting cases). Denise Campbell
testified that, during a February 2013 conversation, she explained to Governale that
“its not looking like we’re going to have the same numbers next [school] year,” due to
Cold Spring Harbor’s changing “programmatic needs.” Campbell Dep. at 95-97.
Campbell further testified that Plaintiff was the only TA terminated at the end of the

22

2012-2013 school year.

See id. at 127-28.

Nevertheless, Arden Benvenuit

(“Benvenuit”), a TA at Cold Spring Harbor, testified that a new TA was hired for the
school year immediately following Plaintiff’s termination. See Deposition of Arden
Benvenuit (“Benvenuit Dep.”), DE [37-3], at 55-57. Matuk testified that the potential
disruption, divisiveness and impact on teaching caused by Plaintiff’s complaints
formed the basis for her termination. See Deposition of Jay Matuk, DE [39-2], at 9293. Moreover, Benvenuit and Matuk testified that they were unable to recall any
other TA being terminated for insubordination, unprofessional behavior, or lateness.
See Matuk Dep. at 95; Benvenuit Dep. at 70. In light of the entire record, including
these inconsistencies, Governale has established issues of fact to be determined at
trial as to whether she was wrongfully retaliated against, and Defendants’ motion for
summary judgment as to her ADA retaliation claim is denied.
B. 42 U.S.C. § 1983 Claims
Conversely, the Court concludes that Plaintiff has failed to raise a genuine
issue of material fact as to her 42 U.S.C. § 1983 claim sufficient to defeat summary
judgment. Section 1983 provides, in relevant part, that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States . . .
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured . . . .
42 U.S.C. § 1983. Although Section 1983 itself does not create substantive rights, it
does provide “a procedure for redress for the deprivation of rights established
elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). To prevail on a claim
23

arising under 42 U.S.C. § 1983, a plaintiff must demonstrate: “(1) the deprivation of
any rights, privileges, or immunities secured by the Constitution and its laws; (2) by
a person acting under the color of state[-]law.” Hawkins v. Nassau Cty. Corr. Facility,
781 F. Supp. 2d 107, 111 (E.D.N.Y. 2011) (citing 42 U.S.C. § 1983). Further, a
plaintiff asserting a class-based equal protection claim under Section 1983 must
allege that the discriminatory actions were intentional and based on his protected
class. See Brown v. City of Oneonta, 221 F.3d 329 (2d Cir. 2000). Alternatively, in
addition to alleging a protected class, a plaintiff may pursue an Equal Protection
claim under either a “class of one” or “selective enforcement” theory. See Vassallo v.
Lando, 591 F. Supp. 2d 172, 183 (E.D.N.Y. 2008). The “class of one” theory,” however,
is not available to a public employee bringing suit against her public employer.
See Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 607, 128 S.Ct. 2146, 2157 (2008)
(finding that the “the class-of-one theory of equal protection has no application in the
public employment context”). Plaintiff’s Section 1983 claim is made pursuant to a
selective enforcement theory based on alleged differential treatment because of her
advocacy on behalf of special education students. See Pl. Opp. at 20-23.
To prevail on a selective enforcement claim, a plaintiff must show “(1) that she
was treated differently from others similarly situated, and (2) that such differential
treatment was based on impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent
to injure a person.” Fierro v. New York City Dep’t of Educ., 994 F. Supp. 2d 581, 592
(S.D.N.Y. 2014) (citation and internal quotation marks omitted). At the summary

24

judgment stage, the plaintiff must present evidence comparing herself to individuals
that are “similarly situated in all material respects.” Sloup v. Loeffler, No. 05–
CV1766, 2008 WL 3978208, at *18 (E.D.N.Y. Aug. 21, 2008) (internal quotation
marks and citation omitted). In analyzing the second prong, courts must distinguish
between a “motivation to punish [in order] to secure compliance with agency
objectives,” and “spite, or malice, or a desire to ‘get’ [someone] for reasons wholly
unrelated to any legitimate state objective.” Bizzarro v. Miranda, 394 F.3d 82, 87
(2d Cir. 2005) (quoting Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir.1995)).
Governale has failed to raise a genuine dispute of material fact as to whether
any other TA was treated more favorably than her despite having similar
performance issues. Simply put, Plaintiff fails to identify the existence of a similarly
situated comparator.

Instead, Plaintiff only makes conclusory allegations about

unnamed individuals. Accordingly, defendants are entitled to summary judgment on
Governale’s Section 1983 claim as a matter of law.
C. NYSHRL
Triable issues also exist as to Plaintiff’s NYSHRL claims. Retaliation claims
under the ADA and NYSHRL are analyzed under the same burden-shifting
framework. See Weixel v. Board of Educ. of the City of New York, 287 F.3d 138, 148–
49 (2d Cir. 2002) (elements of a retaliation claim under Rehabilitation Act are same
as the ADA); Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000)
(applying ADA analysis to plaintiff's retaliation claim under both ADA and NYHRL).
Thus, to the extent that Governale brings a state-law retaliation claim, it survives or
fails on the same basis as her ADA claim. Accordingly, as the Court denies summary
25

judgment against Plaintiff’s ADA claim, it also denies summary judgment as to the
state law claim
V.

CONCLUSION
For the reasons set forth herein, Defendants’ motion for summary judgment is

granted in part and denied in part. The motion is denied as to Plaintiff’s ADA and
NYSHRL claims and granted as to her 42 U.S.C. § 1983 claim.
Dated:

Central Islip, New York
September 29, 2017

s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge

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