Pistello v. The Board of Education of the Canastota Central School District

Filing 47

MEMORANDUM-DECISION AND ORDERED, that Defendants Motion (Dkt. No. 36) is GRANTED in its entirety; and it is further ORDERED, that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED. Signed by Senior Judge Lawrence E. Kahn on March 21, 2019. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHELE PISTELLO,
Plaintiff,
-against-

5:16-CV-0212 (LEK/ATB)

THE BOARD OF EDUCATION OF THE
CANASTOTA CENTRAL SCHOOL
DISTRICT,
Defendant.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
On February 22, 2016, Michele Pistello commenced this action against the Board of

Education of the Canastota Central School District. Dkt. No. 1 (“Complaint”). Following the
Court’s March 30, 2017 decision granting in part and denying in part Defendant’s motion for
judgment on the pleadings, only the following three of Plaintiff’s claims survive: (1) a retaliation
claim brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e, et seq.; (2) a per se retaliation claim brought pursuant to Title II of the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12131, et seq., and Section 504 of the
Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 794; and (3) a retaliatory hostile work
environment claim brought pursuant to the ADA and the RA. Dkt. No. 20 (“March 2017 Order”)
at 26. Now before the Court is Defendant’s motion for summary judgment, filed on July 10, 2018
along with a memorandum and statement of material facts (“SMF”). Dkt. Nos. 36 (“Motion”),
36-1 (“Memorandum”), 36-2 (“SMF”). Plaintiff opposes the Motion. Dkt. Nos. 38

(“Opposition”), 38-17 (“Response to the SMF”). For the reasons set forth below, Defendant’s
Motion is granted in its entirety.
II.

BACKGROUND
A. Local Rule Practice
As a preliminary matter, Defendant accuses Plaintiff of violating Local Rule 7.1, see Dkt.

No. 39 (“Reply”) at 3–4,1 which requires the party opposing a summary judgment motion to “file
a response to [the movant’s] Statement of Material Facts . . . [that] admit[s] and/or den[ies] each
of the movant’s assertions in a short and concise statement . . . [and] set[s] forth a specific
citation to the record where the factual issue arises,” L.R. 7.1(a)(3). Plaintiff properly filed her
Response to the SMF and, in it, “denies virtually every paragraph [in the SMF] that would be
adverse” to her. Reply at 3. However, as Defendant correctly notes, many of those denials
include only unhelpful, boilerplate language, and are supported solely by Plaintiff’s repetition of
the same litany of pincites—including, in some cases, to allegations contained in the Complaint.
Compare, Resp. SMF ¶ 95 (citing to the “Complaint ¶¶ 9–45 . . . and Plaintiff’s Depo. pp. 15, 17,
19–21, 23–24, 26, 30, 54–55, [and] 61 (Exhibit ‘B’) and Exhibits ‘F’ through ‘O’”), with
id. ¶¶ 11–12, 14, 36, 45–49, 52–64, 73–75, 78, 86–87, 89–94 (same), and compare id. ¶ 16
(citing to the “Complaint ¶¶ 39–40 and Depo. of Plaintiff pp. 15, 17, 19–21, 23–24, 26, 30, [and]
33–34”), with id. ¶¶ 17–18, 20–34 (same). Defendant therefore asks the Court to “deem[] all the
allegations of Defendant’s [SMF] admitted.” Reply at 2.

1

The cited page numbers for this document refer to those generated by the Court’s
electronic filing system (“ECF”).
2

“Courts in this district have not hesitated to enforce Rule 7.1(a)(3) . . . by deeming facts
admitted upon an opposing party’s failure to properly respond.” Black v. Fischer,
No. 08-CV-232, 2010 WL 2985081, at *5 (N.D.N.Y. July 1, 2010) (citing Monahan v. N.Y.C.
Dep’t of Corr., 214 F.3d 275, 292 (2d Cir. 2000)). However, that remedy has typically only been
employed where (1) the non-movant has failed in the first instance to file a response, see, e.g.,
Murray v. Goord, 668 F. Supp. 2d 344, 353 (N.D.N.Y. 2009); (2) the non-movant’s response
does not mirror the original SMF, see, e.g., Phipps v. N.Y. State Dep’t of Labor, 53 F. Supp. 2d
551, 556–57 (N.D.N.Y. 1999); or (3) the non-movant’s response provides no citations to the
record whatsoever, see, e.g., McKnight v. Dormitory Auth. of State, 189 F.R.D. 225, 227
(N.D.N.Y. 1999).
Here, as Plaintiff correctly notes, she has filed a response that mirrors the SMF and
contains citations to the record. Dkt. No. 46 (“Sur-Reply”) at 3–4.2 Even though Plaintiff’s
imprecise citations have, admittedly, “le[ft] the Court to sift through the cited pages to determine
where, or even whether, anything therein actually contradicts the assertions in the corresponding
paragraph of Defendant’s [SMF],” Reply at 2, that alone does not provide adequate grounds for
granting the relief Defendant seeks.
However, as always at the summary judgment stage, the Court reserves the right to
disregard any assertions made in either the SMF or the Response to the SMF, if those “factual
assertions . . . are otherwise unsupported in the record.” Holtz v. Rockefeller & Co., Inc., 258
F.3d 62, 74 (2d Cir. 2001) (“Where . . . the record does not support the assertions in a [SMF],

2

The cited page numbers for this document refer to those generated by ECF.
3

those assertions should be disregarded and the record reviewed independently.” (citing Zanghi v.
Inc. Vill. of Old Brookville, 752 F.2d 42, 47 (2d Cir. 1985))).
B. Factual Background
Unless otherwise specified, the facts set forth below are not disputed by the parties.
1. Plaintiff’s Professional History—Pre-September 2014
Plaintiff graduated from Le Moyne College in 2004 with a Master’s degree in special
education. Dkt. No. 45-1 (“2015 Pistello Deposition”)3 at 7–9. She immediately began working
at Blodgett Middle School in the City of Syracuse, where she taught “[r]eading, writing,
listening, and speaking” to emotionally disturbed middle school-aged boys. SMF ¶¶ 3, 18; Dkt.
No. 45 (“2018 Pistello Deposition”)4 at 37; Dkt. No. 36-2 at 309 (“Blodgett Performance
Evaluation”).5 Plaintiff remained at Blodgett for four years, until the end of the 2007–08 school
year. 2018 Pistello Dep. at 37.
On February 1, 2008, near the end of Plaintiff’s employment with the City of Syracuse,
Plaintiff earned New York State public school teacher certifications in both “the fields of Special
Education K[–]12 and Elementary Education Pre-K[–]6.” SMF ¶ 1; see also Dkt. No. 36-4 at 6
(“Special Education Certification”); Dkt. No. 36-4 at 8 (“Elementary Education Certification”).6

3

The 2015 Pistello Deposition, which was taken in connection with a separate suit filed
by Plaintiff in state court, was attached to Defendant’s SMF as Exhibit B.
4

The 2018 Pistello Deposition was attached to Defendant’s SMF as Exhibit A.

5

The Blodgett Performance Evaluation was attached to Defendant’s SMF as Exhibit D.

6

Both the Special Education Certification and the Elementary Education Certification
were attached to the affidavit of Lee Farrell, which Defendant submitted along with its Motion.
Dkt. No. 36-4 at 1–4 (“Farrell Affidavit”).
4

Although the parties agree that Plaintiff’s Special Education Certification authorized her to teach
special education classes at all grade levels, Resp. SMF ¶ 1; 2018 Pistello Dep. at 14–15, they
disagree about the subjects Plaintiff was certified to teach. According to Defendant (by way of
the Farrell Affidavit7), Plaintiff’s Special Education Certification allows her to teach “all
subjects . . . including Math, Science, Reading, English, History, etc.,” within a special education
setting. Farrell Aff. ¶ 9 (emphasis omitted). But Plaintiff contends that her Special Education
Certification did not encompass reading instruction, since “[r]eading is not a special education
service.” 2018 Pistello Dep. at 15, 23; 2015 Pistello Dep. at 71–72. Plaintiff came to that
conclusion after speaking over the phone with Farrell, who allegedly told her that in order to
teach reading “you have to be trained in a program, either . . . Wilson or Read 180[,] and go to
school for literacy.” 2015 Pistello Dep. at 72–74.
In August 2008, Plaintiff started working for the Canastota Central School District (the
“District”), where she remained until August 2015. SMF ¶ 2. During those seven years, Plaintiff
claims that she earned substantially positive reviews, and that she only received two negative
performance evaluations. 2015 Pistello Dep. at 17. First, during the 2008–09 school year Plaintiff
received a negative evaluation and was placed on a teacher improvement plan. Id. at 13–14.
Second, the quality of Plaintiff’s performance was again called into question during the 2014–15
school year, as a result of the events described below that led to the filing of this lawsuit. Id.
at 17. Defendant identifies a third negative evaluation—claiming that Plaintiff was also placed on

7

In her affidavit, Farrell explains that she works as the Regional Certification Officer for
the New York State Education Department assigned to the Madison-Oneida Board of
Cooperative Educational Services (“BOCES”), making her “the resident source for information
concerning questions about teacher certification.” Farrell Aff. ¶¶ 1–2, 5.
5

a teacher improvement plan during the 2010–11 school year—and counters that “[w]hile
[Plaintiff’s] performance was acceptable” throughout her time at Canastota, “it was not
exemplary.” Dkt. No. 36-3 at 1–15 (“Clarke Affidavit”)8 ¶ 15.
While working for Canastota, Plaintiff held several different teaching positions at various
grade levels. During the 2008–09 school year, Plaintiff worked as a “direct consultant” for K–3
students, “pushing in” to elementary school classrooms in order to assist children who were
susceptible to being classified as special education students. 2018 Pistello Dep. at 15–16. In
2009–10, Plaintiff moved to the high school level where she worked again as a direct consultant,
teaching English and math.9 Id. at 17–18. During the next two school years, 2010–11 and
2011–12, Plaintiff received a more “regular teaching assignment,” conducting fifteen-student
self-contained special education English classes in grades ten, eleven, and twelve, though she
also pushed in as a direct consultant in English for grade eleven students. Id. at 18–19. Then in
2012–13 and 2013–14, Plaintiff’s consultant duties were removed and she was reassigned to
teach only self-contained special education English classes for grade ten and eleven students.
Id. at 19–20. However, after a conversation with Superintendent Clarke, Plaintiff was reinstated
for the 2014–15 school year as a direct consultant, while still teaching self-contained classes at
grades ten and eleven. Dkt. No. 1-3 (“November 2014 Email”) at 2.10 Plaintiff and Defendant

8

The Clarke Affidavit, which Defendant submitted along with its Motion, was signed
and submitted by June Clarke, Superintendent of the Canastota Central School District.
9

Defendant disputes this version of events, claiming instead that Plaintiff taught at the
middle school level during the 2009–10 school year. Clarke Aff. ¶ 9. However, Defendant has
provided no documentation in support of that claim.
10

The November 2014 Email was attached to Plaintiff’s Complaint as Exhibit C. In her
deposition testimony, Plaintiff claims that Clarke’s intervention occurred prior to the 2013–14
6

agree that the grade-level and subject-area moves Plaintiff experienced while working for the
District were “pretty typical,” and that a teacher’s “year to year . . . assignments are likely to
change[] depending on the needs of the District.” 2018 Pistello Dep. at 19.
2. Eleventh Grade English Scheduling Issue—September 2014 to January 2015
At the beginning of the 2014–15 school year, three of Plaintiff’s “English 11” students
were erroneously scheduled to leave her class after only ten minutes of class time, so that they
could catch a bus to BOCES. Nov. 2014 Email at 2. As a result, those students received less
English instruction than called for under their mandated Individualized Educational Programs
(“IEP”), and risked failing New York’s standardized test, the Regents Exam. Id. at 2–3.
On September 25, 2014, Bob Mengucci, another teacher employed by Canastota, wrote
an email to Molly Mecca, principal of the high school, discussing the scheduling issue. Dkt.
No. 38-8 (“September 2014 Email”)11 at 2. Also copied on that email chain were Plaintiff,
Superintendent Clarke, Assistant Superintendent Jason Mitchell, Director of Special Education
Carolyn Rose, and Assistant Principal Christopher Rogers. Id. In it, Mengucci explains that he
and Plaintiff had attempted to resolve the situation by having the students stay after school, but
were having difficulty implementing that solution. Id. Mecca responded that if the problem
persisted, they should put together an “SST” or Student Study Team—a meeting of teachers and
administrators designed to discuss problems related to a student’s academic progress. Id.

school year, not the 2014–15 school year. 2018 Pistello Dep. at 20–21. However, the Court has
chosen to instead credit the timeline reported in Plaintiff’s November 2014 Email, as a more
contemporaneous recounting of the events in question.
11

The September 2014 Email was attached to Plaintiff’s Opposition as Exhibit G.
7

The problem remained unresolved throughout late September, October, and early
November. 2018 Pistello Dep. at 64. During those six weeks, Plaintiff called the students’
parents on multiple occasions “to try to get the[ students] to come after” school, and
“[c]onstantly contacted . . . Mecca about the problem, [to] try[] to get it rectified as soon as
possible.” Id. However, Plaintiff did not contact Rose about the ongoing problem during that
time—even though Rose held primary responsibility for dealing with issues related to special
education instruction in Canastota, Dkt. No. 38-6 (“Mitchell Deposition”)12 at 3—because
Plaintiff believed that the September 2014 Email had put Rose “on notice” of the issue, Resp.
SMF ¶ 50; 2018 Pistello Dep. at 64–65.
Then, on November 6, 2014, Plaintiff sent a follow-up email to Clarke about the
scheduling issue.13 Nov. 2014 Email at 2–3. Copied on that email were Mecca, Rogers, Mitchell,
and Lori Russitano (Plaintiff’s union representative), though Rose was conspicuously left off the
recipient list. In the body of the November 2014 Email, Plaintiff re-raised the scheduling issue,
noting that the students were likely to fail both her class and the Regents Exam, and accusing the
District of failing to comply with the students’ IEPs. Id. Plaintiff concluded that she hoped the
scheduling issue would be resolved “for the students’ sake,” and also shared her belief that it
constituted “a direct attack on [her] to sully [her] reputation.” Id. at 3.

12

Excerpts from the Mitchell Deposition were attached to both Defendant’s SMF (as
Exhibit H) and Plaintiff’s Opposition (as Exhibit E).
13

The November 2014 Email also addressed a separate, unconnected issue related to
Plaintiff’s recently-reinstated consulting duties. Nov. 2014 Email at 2. In brief, Plaintiff
complained that a second logistical failing—for which Plaintiff blamed Rose—meant that
Plaintiff’s Annual Professional Performance Review (“APPR”) could be affected by the
standardized test scores of students with which Plaintiff had no contact during the school day. Id.
8

Clarke replied to Plaintiff’s November 2014 Email the next day, on November 7, 2014,
copying in Rose. Id. at 2. In that email, Clarke wrote that Mecca and Rogers were “working with
guidance/transportation to work out a solution for the students,” and requested a meeting with
Rose and Plaintiff to further discuss the issues Plaintiff raised. Id. But no such meeting occurred,
and the scheduling issue remained unresolved. 2018 Pistello Dep. at 68.
A month later, on December 18, 2014, Rose sent Plaintiff a separate follow-up email
titled “Special Education Students.” Dkt. No. 38-9 (“December 2014 Rose Email”)14 at 2. Rose
began by noting that the scheduling issue had been “brought to [her] attention,” then wrote the
following:
In order to remedy this problem, I need to be informed immediately
by you of any issue. . . . I am unable to fix any problems of which I
am unaware. Apparently this particular problem has been occurring
since September, yet you have failed to inform me. You have
established a pattern of informing others and not making me aware of
the situation. As your supervisor, this needs to cease immediately. . . .
From this point forward, I direct that any issues involving IEPs, or
issues with special education students, you bring to my attention first.
If my directive is not followed, I will have no other recourse but to
pursue formal administrative action.
Id. The next day, Plaintiff sent the following reply to Rose, now also copying Mecca, Rogers,
Mitchell, Russitano, and Clarke:
I am perplexed[—]once again[—]with your statement that you were
unaware of the situation involving the three students that attend
BOCES during my English class. . . . It is my understanding[—]per
Bob Mengucci[—]that he informed you before the end of the
previous school year that this was going to be a problem. I shared this
with [Mecca], [Rogers], [Clarke], and [Mitchell] in September . . .
and I did not include you [on that email] because I knew that you
ALREADY knew of this situation . . . . I am disturbed that you[—]an
14

The December 2014 Rose Email was attached to Plaintiff’s Opposition as Exhibit H.
9

administrator[—]would threaten me in words (see e-mail) and
continuously try to label me an insubordinate worker who relishes
breaking the rules.
Dkt. No. 36-10 (“December 2014 Pistello Email”)15 at 2. It appears that the recipients of the
December 2014 Pistello Email chose not to reply to Plaintiff, and the record contains no further
communications involving Plaintiff related to the scheduling issue.
The issue was finally resolved sometime in January 2015, 2018 Pistello Dep. at 66, after
Mitchell told BOCES that Plaintiff’s English class needed to take precedence over the students’
BOCES instruction, Mitchell Dep. at 11; Dkt. No. 38-4 (“Clarke Deposition”)16 at 44. Soon
thereafter, the students’ bussing schedule was adapted to allow for a full English instructional
period. 2018 Pistello Dep. at 65–66.
3. Regents Exam Scoring, the First Professional Conduct Meeting, and the
Counseling Memorandum—January 2015
During the approximately four or five years prior to the 2014–15 school year, Plaintiff
occasionally participated in the scoring of English Regents Exams taken by Canastota students.17
Id. at 80–81. Normally only teachers from the English Department were entrusted with
evaluating those tests—which occurred twice each school year, in January and June—but Ed
Rinaldo, the Principal who preceded Mecca, “threw [Plaintiff] in” to the grading process just in
case “there was some sort of discre[pancy] about what [one of Plaintiff’s students] w[as] trying

15

The December 2014 Pistello Email was attached to Plaintiff’s Opposition as Exhibit I.

16

Excerpts from the Clarke Deposition were attached as both Exhibit E to the Clarke
Affidavit and as Exhibit C to Plaintiff’s Opposition.
17

During one of those years—the 2013–14 school year—Plaintiff also graded “state tests
at BOCES” for seventh and eighth grade English students. Id. at 81.
10

to say.” Id. at 80, 82–83; see also SMF ¶ 62. Therefore, Plaintiff appears only to have
participated in the Regents Exam grading process when her students’ exams were being graded.
See 2018 Pistello Dep. at 87–88 (“I didn’t score the [exams] in June [2015]. Because my special
ed kids passed, so there was no need for me to be in there to answer any questions about them.”).
Plaintiff was the only special education teacher involved in the scoring of Regents Exams, id.
at 80–81, a task that was completely voluntary and for which teachers received no financial
benefit, id. at 88–89; Resp. SMF ¶ 57.
Sometime prior to the January 2015 exam period, Assistant Principal Rogers informed
Plaintiff that she would no longer be participating in the scoring process. Clarke Dep. at 45;
2018 Pistello Dep. at 86–87. According to Superintendent Clarke, that decision came as part of
the District’s broader attempt “to be consistent with all the departments” by “having just the . . .
teachers that were certified in [a given subject] area scoring the Regents Exams.” Clarke Dep.
at 45. Plaintiff was upset by that decision, because the exam included a critical lens essay that
was not part of many English teachers’ curricula. Id. at 84–85. She therefore believed that many
English instructors would have difficulty properly evaluating that portion of the exam. Id.
On January 23, 2015, after she had been removed from the Regents Exam scoring team,
Plaintiff met briefly with Mecca. Dkt. No. 36-3 at 39 (“Revised Counseling Memorandum”)18;
2018 Pistello Dep. at 90–91. Plaintiff asked Mecca to score a paragraph written by a student
using the 0–2 scale set out in the Regents Exam rubric (with 2 as the highest possible score).
Revised Counseling Mem. Mecca did so, assigning a grade of “1 or a possible 2.” Revised

18

The Revised Counseling Memorandum was attached as Exhibit G to the Clarke

Affidavit.
11

Counseling Mem. Plaintiff argued that the essay should have been given a 2, and Mecca agreed
that she “would err on the higher score for the student.” Id.
Following that meeting, Mecca learned that the paragraph (1) had been written by a
special education student; (2) had been scored a “1” by one of Plaintiff’s colleagues; and (3) had
already been shown by Plaintiff to another, retired teacher, Mr. Bazon. Id.; 2015 Pistello Dep.
at 27–30. Mecca therefore felt that Plaintiff had “misused [Mecca’s] score o[f] a possible ‘2’ to
undermine [her] colleagues,” because Plaintiff “did not have confidence in [her] colleagues to
adequately score the [Regents E]xam.” Revised Counseling Mem. Mecca also learned that
Plaintiff “believed that [she] and another colleague had been excluded purposely by
administration” from the Regents Exam scoring process. Id.
A few days later, on January 26, 2015, Mecca and Rogers sent Plaintiff a form document
calling her to a professional conduct meeting (the “First Professional Conduct Meeting”) to
discuss her behavior. Dkt. No. 36-2 at 319 (“First Professional Conduct Memorandum”)19; SMF
¶ 65. At that meeting—which occurred on January 27, 2015, and which Plaintiff attended along
with her union representative, Russitano—Mecca and Rogers briefly discussed Plaintiff’s
decision to show Mecca the paragraph. Clarke Dep. at 55–56; 2018 Pistello Dep. at 90. However,
Plaintiff left the meeting without “know[ing] what [she] did wrong.”

19

The First Professional Conduct Memorandum was attached to Defendant’s Motion as
Exhibit F. Also included in that Exhibit are three later professional conduct memoranda that were
also sent to Plaintiff, on February 11, February 25, and March 6, 2015. See Dkt. No. 36-2 at 320
(“Second Professional Conduct Memorandum”); Dkt. No. 36-2 at 321 (“Third Professional
Conduct Memorandum”); Dkt. No. 36-2 at 322 (“Fourth Professional Conduct Memorandum”).
All four of those memoranda were originally placed in Plaintiff’s Canastota personnel file, but
were later expunged at the request of Plaintiff’s attorney. See Clarke Dep. at 54.
12

On February 25, 2015, Mecca sent Plaintiff a document (1) recording their discussion
during the First Professional Conduct Meeting; (2) expressing Mecca’s concerns; and (3) offering
“suggestions” to “help [Plaintiff] avoid further problems of this nature.” Dkt. No. 36-3 at 36–37
(“Counseling Memorandum”). Plaintiff objected to the content of that document, and hired an
attorney to help negotiate certain modifications. 2018 Pistello Dep. at 94. Plaintiff and Mecca
then drafted the Revised Counseling Memorandum in a manner “which was acceptable to []
Plaintiff.” Clarke Aff. ¶ 36; but see 2018 Pistello Dep. at 94 (“They removed some of the things
that I felt weren’t true, but still left some things in there that still weren’t true.”).20 The “softened”
Revised Counseling Memorandum was then placed in Plaintiff’s Canastota personnel file, though
she faced no other discipline as a direct result of the scoring incident. Id. at 92–94, 103–04.
4. The D.J. Incident, the Second Professional Conduct Meeting, and the
Harassment Report—February 2015
On February 3, 2015, Plaintiff assigned one of her students, D.J., detention “because he
refused to obey her directive to refrain from using headphones and his phone in class.” Dkt.
No. 36-2 at 324–36 (“Harassment Findings”)21; 2018 Pistello Dep. at 95. However, D.J. did not
attend Plaintiff’s detention, and the next day, February 4, 2015, Plaintiff assigned him another
detention as discipline for skipping the first detention. 2018 Pistello Dep. at 95, 99; Dkt.

20

Despite Plaintiff’s reservations, the Court finds that the Revised Counseling
Memorandum mirrors exactly Plaintiff’s testimony about the events surrounding Plaintiff’s
January 23, 2015 meeting with Mecca. Compare Revised Counseling Mem., with 2018 Pistello
Dep. at 89–94. Therefore, the Court will treat the Revised Counseling Memorandum as an
accurate and undisputed account of those events.
21

The Harassment Findings were attached to Defendant’s SMF as Exhibit G. The cited
page numbers for that document refer to those generated by ECF.
13

No. 38-14 (“D.J. Incident Report”)22 at 2. D.J. skipped that detention as well. 2018 Pistello Dep.
at 99. Afterwards, Plaintiff heard from “another student” that, when asked about the detentions,
D.J. said to the student that “[Plaintiff] can suck my dick.” D.J. Incident Report at 2.
In response to D.J.’s behavior, Plaintiff asked the school’s weight room supervisor,
Brenda Jenkins, to deny D.J. access to the weight room. Harassment Findings at 325; 2018
Pistello Dep. at 99; 2015 Pistello Dep. at 47; Dkt. No. 38-5 (“Rogers Deposition”)23 at 39.
Pistello had worked as the high school’s weight room attendant during the 2011–12 and 2012–13
school years, and believed that school policy forbade a student caught skipping detention from
exercising their “privilege” to use the weight room. 2018 Pistello Dep. at 96–98.
Soon thereafter, Assistant Principal Rogers was alerted to the situation when, from inside
his office, he heard D.J. “yelling and screaming . . . in the hallway.” Rogers Dep. at 38. While
trying to de-escalate the situation, Rogers learned that Plaintiff had denied D.J. weight room
access. Id. at 39. Rogers then escorted D.J. to the weight room and instructed the attendant to
disregard Plaintiff’s instruction and to provide D.J. access. Id. at 39.
Immediately thereafter, Rogers called Plaintiff into his office for a meeting to discuss the
incident. Id. at 42. Among other things, Rogers told Plaintiff that she had “overstepp[ed] her
bounds” by operating “outside the chain of command and beyond what was prescribed in the
Student Handbook.” Harassment Findings at 325. Plaintiff replied that “[i]n all the years that [she
had] been teaching, [she had] never had a student say that to [her].” 2015 Pistello Dep. at 101.

22

The D.J. Incident Report was attached to Plaintiff’s Opposition as Exhibit M.

23

The Rogers Deposition was attached to Plaintiff’s Opposition as Exhibit D.
14

Rogers responded that he “f[ou]nd that hard to believe.” Id.; Dkt. No. 38-15 (“Harassment
Report”)24 at 3; Rogers Dep. at 44.
On February 11 and February 25, 2015, Mecca and Rogers sent Plaintiff two more
professional conduct memoranda asking her to attend meetings in Mecca’s office to discuss the
D.J. incident. Second Prof’l Conduct Mem.; Third Prof’l Conduct Mem.; SMF ¶ 65. Based on
Plaintiff’s and Rogers’s testimony, it appears that only one such meeting actually occurred, on
March 4, 2015 (the “Second Professional Conduct Meeting”). 2018 Pistello Dep. at 79; Rogers
Dep. at 53. At that meeting, Mecca asked Plaintiff “why [she] had gone beyond the normal
course of discipline” with D.J., and expressed her concern that Plaintiff “was not following the
normal rules and procedures of . . . the school system.” Rogers Dep. at 53. Plaintiff did not
receive a counseling memorandum after that meeting, 2018 Pistello Dep. at 102–04, and the
record contains no indication that any other disciplinary action was taken against Plaintiff as a
direct result of the D.J. incident.
On February 27, 2015—between the date that Plaintiff received the Third Professional
Conduct Memorandum and the date of the Second Professional Conduct Meeting—Plaintiff filed
a sexual harassment report objecting to Rogers’s comments during their February 4, 2015
meeting. Harassment Report at 2–3; Resp. SMF ¶ 68. Assistant Superintendent Mitchell
investigated Plaintiff’s allegations, including by interviewing both Rogers and Plaintiff. Resp.
SMF ¶¶ 68–70; Harassment Findings at 325. In his ensuing report, dated May 20, 2015, Mitchell
characterized Rogers’s “I find that hard to believe” comment as “simply [a] reacti[on] to what he

24

The Harassment Report was attached to Plaintiff’s Opposition as Exhibit N. The cited
page numbers for this document refer to those generated by ECF.
15

believed to be [Plaintiff’s] gross understatement of the frequency with which high school
students make crude remarks,” and found that no sexual harassment had occurred. Harassment
Findings at 325.
5. The Fourth Professional Conduct Memorandum—March 2015
On March 6, 2015, Mecca sent Plaintiff the Fourth Professional Conduct Memorandum.
That document also directed Plaintiff to attend a meeting in Mecca’s office, Fourth Prof’l
Conduct Mem., though no such meeting actually occurred, 2018 Pistello Dep. at 100–01. The
Fourth Professional Conduct Memorandum cited Plaintiff for failing to “follow administrative
directives to return [two] signed letters”—a “Letter of Counsel” and the Third Professional
Conduct Memorandum. Just like the First, Second, and Third Professional Conduct Memoranda,
the Fourth Professional Conduct Memorandum was added to Plaintiff’s personnel file but later
expunged. Clarke Dep. at 54. Plaintiff faced no further disciplinary action as a direct result of the
incidents it described.
Thus, by March 6, 2015, Plaintiff had received four professional conduct memoranda
over the course of approximately six weeks. In his two years working at the high school, Vice
Principal Rogers only knew of “[m]aybe half a dozen or eight” instances in which similar form
documents had been issued to other instructors. Rogers Dep. at 30–31.
6. Bullying Investigation Involving Plaintiff’s Son—April 2015
In late April 2015, Assistant Superintendent Mitchell emailed Plaintiff about an
investigation he was conducting regarding Plaintiff’s son, J.P. Compl. ¶ 42; SMF ¶ 81;
2015 Pistello Dep. at 110–11. According to Mitchell, the investigation arose out of an unnamed
student’s allegation that J.P. had been using a Snapchat account to bully another student, J.F.
16

SMF ¶ 81; 2015 Pistello Dep. at 110–11. Mitchell wanted to hold a mediation between J.P. and
J.F., but Plaintiff objected “that there was no need to have a mediation because [J.P. and J.F.
weren’t] even arguing,” and because J.P. did not have a Snapchat account. 2015 Pistello Dep.
at 111–13; SMF ¶ 81. Mitchell and Plaintiff continued to exchange emails, with Mitchell asking
why Plaintiff was against the mediation, and Plaintiff responding (1) that she “didn’t want to put
[her] son under any type of stress;” (2) that, as J.P.’s mother, “when [Plaintiff] said that there
[wa]s going to be no mediation, th[e] case [wa]s closed;” and (3) that she “d[id] not want to be
contacted about th[e mediation] anymore.” 2015 Pistello Dep. at 112.
Mitchell respected Plaintiff’s wishes and chose not to hold a mediation between J.P. and
J.F. during the 2014–15 school year.25 2015 Pistello Dep. at 113. Mitchell did continue
investigating the bullying allegation, however, including by calling J.P. into his office to discuss
it. Compl. ¶ 42. Eventually, Mitchell determined that the allegation was “unfounded” and
decided not to take any disciplinary action. Clarke Dep. at 103; 2015 Pistello Dep. at 114.
7. Plaintiff’s APPR—May 2015
At some point during the 2014–15 school year, Plaintiff learned that the in-class
observation portion of her APPR26 would be conducted by Director of Special Education Rose.

25

A mediation between J.P. and J.F. did occur the following year, conducted by the new
principal in charge of the high school (who replaced Mecca prior to the 2015–16 school year).
2015 Pistello Dep. at 113; SMF ¶¶ 83–84.
26

The in-class observation consists of five stages: (1) the evaluator meets with the
teacher a few days prior to the observation; (2) the evaluator observes the teacher’s in-class
performance; (3) the evaluator offers a preliminary report of their observations and the teacher’s
scores under the APPR rubric; (4) the teacher and evaluator hold a post-observation conference
to discuss the preliminary report; and (5) the evaluator completes a final report. 2018 Pistello
Dep. at 55; 2015 Pistello Dep. at 55–57.
17

Compl. ¶ 33; Dkt. No. 36-3 at 23–27 (“2015 APPR”).27 In prior years, Principal Mecca had
completed Planitiff’s in-class observation, but the District decided prior to the 2014–15 school
year that Rose would instead observe all of the special education teachers from “K to twelve.”
2015 Pistello Dep. at 55, 62. Plaintiff feared that Rose “wasn’t going to be fair” in conducting
her observation, because Rose “didn’t like [Plaintiff]” and exhibited a “negative [and] sarcastic”
attitude towards her. 2018 Pistello Dep. at 58, 61. Therefore, Plaintiff’s attorneys sent a “formal
letter” to the District objecting to Rose and requesting an alternate observer. Compl. ¶ 35.
The District denied Plaintiff’s request and insisted that Rose conduct the observation. Id.
According to Superintendent Clarke, Plaintiff’s request was rejected because Rose was Plaintiff’s
direct supervisor, and “according to [Plaintiff’s] contract and according to APPR, [Plaintiff]
need[ed] to have [he]r supervisor do the observation.” Clarke Dep. at 92; see also Clarke Aff.
¶ 27 (“Under the policies and regulations of the [] District, Carolyn Rose was required to be
[Plaintiff’s] evaluator.”). Additionally, though the District had other trained evaluators who could
have performed Plaintiff’s observation, Clarke contends that Rose “ha[d] the most expertise in
special education and [could] do the best evaluation.” Clarke Dep. at 92.
The parties disagree substantially about what happened during the in-class observation
portion of Plaintiff’s 2015 APPR. According to Plaintiff, Rose’s preliminary report of Plaintiff’s
performance assigned her an overall score lower than “highly effective,” the highest possible
rating. 2018 Pistello Dep. at 56. Plaintiff then identified several “inaccuracies” in the preliminary
report, which she “color coded” and “rebutt[]ed” at her post-observation conference with Rose.
Id. at 55. During that meeting, Rose “had trouble [explaining] her comments,” at least one of
27

The 2015 APPR was attached as Exhibit D to the Clarke Affidavit.
18

which was eventually removed from Plaintiff’s evaluation. Id. at 55–56. However, even after
taking Plaintiff’s rebuttals into consideration, Rose did not alter Plaintiff’s overall score. Id.
at 56. Only after the post-observation conference, when Plaintiff “talked to [her] attorney” who in
turn “spoke[] to . . . Rose about the inaccuracies,” was Plaintiff’s score changed to 95 points out
of 100, a highly effective rating. Id. at 56–57.
According to Defendant, on the other hand, Rose “was professional and objective” in
conducting Plaintiff’s in-class observation, and “at no time intimidated or in any way . . .
restrained [Plaintiff from] presenting her point of view.” Clarke Aff. ¶¶ 29, 33. Although
Defendant admits that, during the post-observation conference, Plaintiff “did . . . obtain minor
changes [to] some of the language used in the evaluation form itself,” Defendant maintains that
Plaintiff’s “overall rating was NOT changed.” Id. ¶ 31; Clarke Dep. at 96. Thus, according to
Defendant, Rose always rated Plaintiff as “highly effective,” even in the preliminary report she
completed prior to her post-observation conference with Plaintiff. Clarke Aff. ¶ 32.
8. Middle School Teaching Assignment—June 2015
On approximately June 25, 2015, the last day of the 2014–15 school year, all of the
teachers employed by the District—including Plaintiff—received their teaching assignments for
the following year. SMF ¶ 12; 2018 Pistello Dep. at 22. For special education teachers, those
assignments were always made by Rose, as the District’s Director of Special Education. 2018
Pistello Dep. at 27. After reviewing her 2015–16 assignment, Plaintiff was “shocked” to see that
she had been moved from the high school to the middle school, where she was assigned to teach
math and reading to seventh and eighth grade special education students. Id. at 22, 24; 2015
Pistello Dep. at 70; Clarke Aff. ¶ 66.
19

Plaintiff took issue with her 2015–16 assignment for multiple reasons. First, Plaintiff
contends that she “didn’t understand why [she] was [being] sent to the middle school [since she]
was very successful . . . teaching English and getting passing grades” at the high school level.
2015 Pistello Dep. at 76. But according to Defendant, the District routinely “moves teachers in
order to accommodate the needs of the School District,” “for the benefit of the [District’s]
students,” and to help teachers “keep their skills fresh.” Clarke Aff. ¶ 60. Therefore, Defendant
argues that Plaintiff “was selected for reassignment because she was an experienced middle
school teacher,” and the “District needed a strong and well-qualified middle school teacher to
teach” the classes to which Plaintiff was assigned. Id. ¶ 57, 61.
Second, Plaintiff believed—based on “common knowledge” and on conversations she
had with her colleagues—that “if you are sent down to the middle school, it’s usually because
you cannot do something right in the high school.” 2015 Pistello Dep. at 76–77. Defendant
disputes that characterization, arguing that it “know[s] of no basis for” the claim that the
“reassignment of a teacher from the high school to the middle school [would be] considered . . . a
‘demotion.’” Farrell Aff. ¶ 19. Indeed, Defendant claims that “[t]eaching at the middle school
level is said to be a very rewarding and challenging aspect of teaching.” Id. ¶ 20.
Third, Plaintiff “felt that if [she] was going to be moved to the middle school[, she]
would at least be teaching English, not math,” since she had no experience teaching the
“common core math” curriculum that had recently been adopted by the District. 2018 Pistello
Dep. at 29–31. Plaintiff was concerned that, if she struggled with the common core material, her
APPR scores would suffer and she could be “fired within three years.” 2015 Pistello Dep. at 78.
Defendant appears to concede that Plaintiff had no experience teaching the common core
20

curriculum, Clarke Aff. ¶ 63, but notes that her inexperience with that subject matter did not
impose a “legal impediment to [Plaintiff] teaching . . . math to [s]pecial [e]ducation students at
the middle school level,” Farrell Aff. ¶ 15.
Plaintiff did not personally discuss her 2015–16 assignment with Clarke, Rose, Mecca, or
any other administrators, and did not file a grievance through the teachers union. 2015 Pistello
Dep. at 77; 2018 Pistello Dep. at 31–32. Instead, Plaintiff hired an attorney, who met with the
District about changing Plaintiff’s assignment. 2018 Pistello Dep. at 32. As a result of those
discussions, “the District agreed to modify [Plaintiff’s] assignment . . . so that she would still be
teaching [s]pecial [e]ducation at the middle school level”—apparently within the context of a
resource room assignment, id.—“but another teacher would be assigned to teach the [m]ath
portion of the program,” Clarke Aff. ¶ 63. However, the District asserts that it “could not relieve
[Plaintiff] of the responsibility to teach reading,” since that constitutes a “fundamental” role of
special education instruction. Id. ¶¶ 64–65.
Both parties agree that “[i]t’s pretty typical” for teachers’ assignments to change from
year to year “depend[ing] upon the needs of the District.” 2018 Pistello Dep. at 19. In fact, along
with Plaintiff, a number of both special education and regular education teachers were also
reassigned for the 2015–16 school year. See Dkt. No. 36-3 at 60–62 (“Staff Assignment
Changes”)28 (listing the thirty other staff assignment changes implemented by the District
between the 2014–15 and 2015–16 school years); see also SMF ¶ 27; 2018 Pistello Dep.
at 27–29. Among those reassigned staff members were seven special education

28

The Staff Assignment Changes were attached as Exhibit J-2 to Defendant’s Clarke

Affidavit.
21

teachers—including at least two, Laura Blessing and Jennifer Kurak, who moved to the District’s
middle school from its elementary and high school, respectively, Staff Assignment Changes
at 61–62—and three non-special education teachers—Tina Davis, Trish Micaroni, and John
Slater—who moved from assignments at the high school to assignments at the middle school, id.
at 60.
The parties also agree that Plaintiff’s 2015–16 assignment to the middle school would not
have affected her salary or benefits package, and that Plaintiff would still be working under the
same Collective Bargaining Agreement. Resp. SMF ¶ 28. And Plaintiff admitted during her 2018
deposition that, following the elimination of her math instruction responsibilities, she “would
have essentially the same hours of work” and the “[s]ame duties” at the middle school, which
was located in the same building as the high school. 2018 Pistello Dep. at 29, 32–33.
9. Aftermath—Post-June 2015
During the summer of 2015, Plaintiff began seeking employment outside the District. Id.
at 40–41. She did so because of her feeling “that [Canastota] was a hostile working environment
and [that] the move to the middle school was a negative move and something that was a
punishment.” Id. at 41.
At the end of August 2015, Plaintiff received an offer from the City of Syracuse to teach
seventh grade special education students at Danforth Middle School. Id. at 7–8, 47; 2015 Pistello
Dep. at 66–67. In that role, Plaintiff would once again be working as a consultant, pushing in to
help students in English, math, social studies, and science. 2018 Pistello Dep. at 7. Plaintiff’s
salary while working for the City of Syracuse was higher than the salary she earned working for

22

the District, though her hours and benefits package were slightly worse. 2015 Pistello Dep.
at 67–69.
Just before the start of the 2015–16 school year, Plaintiff informed the District of her
decision to leave Canastota in favor of the Syracuse position. 2018 Pistello Dep. at 47.
C. Procedural History
Plaintiff filed her Complaint on February 22, 2016, alleging violations of (1) Title VII;
(2) the ADA; (3) the RA; (4) the Equal Protection Clause of the Fourteenth Amendment,
pursuant to 42 U.S.C. § 1983; and (5) New York Education Law § 3028-d. Compl.
On April 29, 2016, Defendant filed a motion for judgment on the pleadings, Dkt. No. 12
(“MJP”), which the Court granted as to Plaintiff’s § 1983, § 3028-d, and Title VII hostile work
environment claims, March 2017 Order at 26. However, the Court denied Defendant’s MJP as
follows: First, the Court held that the Complaint sufficiently stated a Title VII retaliation claim,
because the temporal proximity between Plaintiff’s Harassment Report and Rose’s decision to
reassign Plaintiff for the 2015–16 school year “[wa]s sufficiently short to infer” retaliatory
motive “in the context of a motion for judgment on the pleadings.” Id. at 16 (citing Corzynski v.
JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010)). Second, the Court allowed Plaintiff’s
ADA/RA per se retaliation claim to proceed, because (1) the November 2014 Email constituted
protected activity under the ADA and the RA, since Plaintiff was advocating on behalf of her
disabled students, id. at 17–19; (2) the District was aware of that activity, id. at 20; (3) as-pled,
Plaintiff’s 2015–16 reassignment “r[ose] to the level of an adverse action,” id.; and (4) “the
seven-month gap between the [November 2014 Email] and [Plaintiff’s] notice of transfer
[wa]s . . . close enough to plausibly infer a causal connection,” id. at 21. Third, the Court chose
23

not to dismiss Plaintiff’s ADA/RA retaliatory hostile work environment claim, because when
“[t]aken as a whole,” the events set out in the Complaint as occurring after the November 2014
Email “were objectively pervasive given their frequency and . . . negative impact on [Plaintiff]”
to sufficiently plead the existence of a hostile work environment. Id. at 22.
Following discovery and a failed mediation, Defendant filed for summary judgment on
July 10, 2018. Mot. In the Memorandum attached to its Motion, Defendant argues that (1) the
December 2014 Rose Email “was neither discriminatory nor retaliatory,” Mem. at 13–16;29
(2) none of the Counseling Memorandum, the Professional Conduct Memoranda, or the 2015
APPR constituted “adverse employment action under New York law,” id. at 17–20, 23–25;
(3) Plaintiff’s 2015–16 teaching assignment “was not evidence of retaliation,” id. at 20–23; and
(4) Plaintiff has not established a “claim of constructive discharge,” id. at 25–27. Plaintiff
opposes the Motion, arguing in broad terms that “the Complaint does state” claims for retaliation
under Title VII, the ADA, and the RA, as well as for constructive discharge. Opp’n at 18–29.30
Defendant replied to Plaintiff’s Opposition on August 3, 2018, reiterating many of the
same points addressed in its Memorandum. Reply. However, as the Court noted in its February 4,
2019 text order, the Reply also “contain[ed] arguments and . . . address[ed] issues not developed
in [Defendant’s] motion papers.” Dkt. No. 42 (“February 2019 Text Order”). For example, the
Reply newly argued (1) that Plaintiff’s Response to the SMF was deficient, and that the SMF
should therefore be deemed admitted pursuant to Local Rule 7.1(a)(3), Reply at 1–2; see also
supra Part II.A; and (2) more broadly, that even if the behavior challenged by the Complaint

29

The cited page numbers for this document refer to those generated by ECF.

30

The cited page numbers for this document refer to those generated by ECF.
24

constituted materially adverse actions within the meaning of Title VII, the ADA, or the RA,
“Defendant has articulated . . . legitimate, nonretaliatory rationale[s]” for those actions, Reply
at 4–8.
“Instead of disregarding th[o]se improperly raised arguments,” the Court allowed Plaintiff
to file a sur-reply addressing Defendant’s Reply, and informed the parties that it would “then
consider both the Reply and any sur[-]reply when deciding Defendant’s [M]otion.” Feb. 2019
Text Order (citing Domino Media, Inc. v. Kranis, 9 F. Supp. 2d 374, 387 (S.D.N.Y. 1998); Lee v.
Coughlin, 26 F. Supp. 2d 615, 617 n.2 (S.D.N.Y. 1998)). Plaintiff filed such a sur-reply on
February 13, 2019, arguing only that (1) Plaintiff complied with Local Rule 7.1(a)(3); and
(2) Plaintiff “has met her burden of proof on her Title VII and ADA retaliation claims.”
Sur-Reply at 3–5.
III.

LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure instructs courts to grant summary

judgment if “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the
outcome of the suit under the governing law,” and a dispute is “‘genuine’ . . . if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, while “[f]actual disputes that are irrelevant or
unnecessary” will not preclude summary judgment, “summary judgment will not lie if . . . the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see
also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact
could find in favor of the nonmoving party should summary judgment be granted.”).
25

The party seeking summary judgment bears the burden of informing the court of the basis
for the motion and identifying those portions of the record that the moving party claims will
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Similarly, a party is entitled to summary judgment when the nonmoving party
carries the ultimate burden of proof and has failed “to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id.
at 322.
In attempting to repel a motion for summary judgment after the moving party has met its
initial burden, the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). At the same time, a court must resolve all ambiguities and draw all
reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). Thus, a court’s duty in reviewing a motion for summary
judgment is “carefully limited” to finding genuine disputes of fact, “not to deciding them.” Gallo
v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
IV.

DISCUSSION
A. Plaintiff’s Title VII Retaliation Claim
Title VII prohibits “discriminat[ion] against any individual with respect to h[er]

compensation, terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” § 2000e-2(a)(1). Title VII also includes an anti-retaliation
provision, which makes it unlawful “for an employer to discriminate against any . . .
employee[] . . . because [that individual] opposed any practice” made unlawful by Title VII or
26

“made a charge, testified, assisted, or participated in” a Title VII “investigation, proceeding, or
hearing.” § 2000e-3(a). “This anti-retaliation provision is intended to further the goals of the
anti-discrimination provision ‘by preventing an employer from interfering (through retaliation)
with an employee’s efforts to secure or advance enforcement of [Title VII’s] basic guarantees.’”
Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (quoting Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 63 (2006)).
“Retaliation claims under Title VII are evaluated under a three-step burden-shifting
analysis,” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005), known as the
McDonnell Douglas framework, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05
(1973). First, a plaintiff must satisfy the “de minimis” burden of establishing a prima facie case
of retaliation by showing “‘(1) participation in a protected activity; (2) that the defendant knew of
the protected activity; (3) an adverse employment action; and (4) a causal connection between the
protected activity and the adverse employment action.’” Id. (quoting McMenemy v. City of
Rochester, 241 F.3d 279, 282–83 (2d Cir. 2001)). “In determining whether this initial burden is
satisfied in a Title VII retaliation claim, the court’s role in evaluating a summary judgment
request is to determine only whether proffered admissible evidence would be sufficient to permit
a rational finder of fact to infer a retaliatory motive.” Id. (citing Donahue v. Windsor Locks Bd.
of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987)).
“If the plaintiff sustains this initial burden, ‘a presumption of retaliation arises,’” and the
defendant must proceed to the second step: “‘articulat[ing] a legitimate, non-retaliatory reason
for the adverse employment action.’” Hicks, 593 F.3d at 164 (quoting Jute, 410 F.3d at 173). In
the event the employer can do so, the burden shifts back to the employee to “show that retaliation
27

was a ‘but-for’ cause of the adverse action, and not simply a ‘substantial’ or ‘motivating’ factor
in the employer’s decision or that the employer’s reason was pretextual.” Senese v. Longwood
Cent. Sch. Dist., 330 F. Supp. 3d 745, 772 (E.D.N.Y. 2018) (certain internal quotation marks and
citation omitted). However, “if the record conclusively reveal[s] some other, nondiscriminatory
reason for the employer’s decision, or if the plaintiff create[s] only a weak issue of fact as to
whether the employer’s reason was untrue and there was abundant and uncontroverted
independent evidence that no discrimination had occurred,” the employer is entitled to judgment
as a matter of law. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
1. Plaintiff’s Prima Facie Case—Materially Adverse Action
Defendant’s Motion focuses primarily on the first stage of Title VII’s three-part inquiry,
and specifically on rebutting Plaintiff’s claim that she suffered a materially adverse action.
Within the context of a Title VII retaliation claim, a materially adverse action is one that
“‘could well dissuade a reasonable worker from making or supporting a charge of
discrimination.’” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015)
(quoting White, 548 U.S. at 57). “Material adversity is to be determined objectively, based on the
reactions of a reasonable employee.” Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d
556, 567 (2d Cir. 2011). The Supreme Court has cautioned that
[c]ontext 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. A
schedule change in an employee’s work schedule may make little
difference to many workers, but may matter enormously to a young
mother with school-age children. A supervisor’s refusal to invite an
employee to lunch is normally trivial, a nonactionable petty slight.
But to retaliate by excluding an employee from a weekly training
28

lunch that contributes significantly to the employee’s professional
advancement might well deter a reasonable employee from
complaining about discrimination.
White, 548 U.S. at 69 (internal quotation marks and citations omitted). However, “Title VII is
not a general ‘bad acts’ statute,” Wimmer v. Suffolk Cty. Police Dep’t, 176 F.3d 125, 135 (2d
Cir. 1999), and does not protect individuals from retaliation that fails to produce “an injury or
harm,” White, 548 U.S. at 67. Additionally, the “‘petty slights or minor annoyances that often
take place at work and that all employees experience’ do not constitute actionable retaliation.”
Hicks, 593 F.3d at 165 (quoting White, 548 U.S. at 68).
As the Court explained in its March 2017 Order, “only [those] events that occurred after
February 27, the day [Plaintiff] filed the [Harassment Report],” could constitute a qualifying
adverse action for the purposes of her Title VII retaliation claim. March 2017 Order at 14. Those
events include: (1) the March 4, 2015 Second Professional Conduct Meeting; (2) the
March 6, 2015 Fourth Professional Conduct Memorandum; (3) Assistant Superintendent
Mitchell’s April 2015 investigation involving J.P.; (4) Plaintiff’s May 2015 APPR; and
(5) Plaintiff’s end-of-year teaching reassignment. However, the Court must evaluate those
“alleged acts of retaliation . . . both separately and in the aggregate as even minor acts of
retaliation can be sufficiently substantial in gross as to be actionable.” Hicks, 593 F.3d at 165
(internal quotation marks and citation omitted).
a. The Second Professional Conduct Meeting, the Fourth Professional
Conduct Memorandum, and the 2015 APPR
The Court finds that none of the Second Professional Conduct Meeting, the Fourth
Professional Conduct Memorandum, or the 2015 APPR, “considered both separately and in the

29

aggregate,” id., would have dissuaded a reasonable employee from making or supporting a
charge of discrimination.
The Second Professional Conduct Meeting was initiated by form memoranda sent on
February 11 and February 25, 2015, Second Prof’l Conduct Mem.; Third Prof’l Conduct Mem.,
prior to Plaintiff’s protected activity. Moreover, both the Second Professional Conduct Meeting
and the Fourth Professional Conduct Memorandum could be described as “criticism” that was
“necessary to allow [Plaintiff to develop, improve[,] and avoid discipline.” Weeks v. N.Y. State
(Div. of Parole), 273 F.3d 76, 86 (2d Cir. 2001), abrogated on other grounds by Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Courts in this Circuit have determined that
critiques of that sort do not qualify as materially adverse actions “in the absence of other negative
results such as a decrease in pay or being placed on probation,” none of which occurred in
Plaintiff’s case. Uddin v. City of New York, 427 F. Supp. 2d 414, 429 (S.D.N.Y. 2006)
(quotation marks and citation omitted); see also Weeks, 273 F.3d at 86 (finding that the issuance
of a “notice of discipline” and “counseling memo” did not constitute materially adverse
employment actions for purposes of retaliation prima facie case); Tepperwien, 663 F.3d at
570–71 (citing Weeks in finding that counseling received by employee was not a materially
adverse action under Title VII’s anti-retaliation provision).
As to the 2015 APPR, Plaintiff bases her claim of retaliation on (1) the fact that her
evaluation was conducted by Rose, who “didn’t like” Plaintiff, 2018 Pistello Dep. at 61; and
(2) Rose’s preliminary evaluation, which, Plaintiff asserts, contained factual inaccuracies and a
rating lower than “highly effective,” id. at 56–57. Although the record does not indicate when
exactly Plaintiff objected to Rose as her APPR evaluator, Plaintiff admits that Rose’s
30

appointment as evaluator for all special education teachers occurred prior to the start of the
2014–15 school year, long before Plaintiff’s protected activity. 2015 Pistello Dep. at 55, 62.
Also, regarding Plaintiff’s less-than-perfect preliminary rating, while courts in this Circuit have
routinely held that “a poor performance evaluation could very well deter a reasonable worker
from complaining,” see, e.g., Vega, 801 F.3d 72, 92 (citation omitted), they have explicitly
distinguished from that category performance reviews that, though lower than previous reviews
the employee received, were still positive overall, see, e.g., Moy v. Perez, 712 F. App’x 38, 41
(2d Cir. 2017) (holding that positive performance evaluations, even if less positive than those
received in previous years, cannot “plausibly make out an adverse employment action” in the
retaliation context); Byrne v. Telesector Res. Grp., Inc., 339 F. App’x 13, 17 (2d Cir. 2009)
(same). Rose’s preliminary review of Plaintiff falls squarely in the latter camp—although
Plaintiff asserts that Rose originally did not rate her as “highly effective,” 2018 Pistello Dep.
at 56, she does not claim (and the record nowhere indicates) that Rose’s original score would
have resulted in a “negative” review overall.
As a result, the Court finds that Plaintiff cannot maintain an actionable Title VII claim
based on any of the Second Professional Conduct Meeting, the Fourth Professional Conduct
Memorandum, and/or the 2015 APPR.
b. The J.P. Investigation
The J.P. investigation, on the other hand, presents a much closer question. The parties
have not cited any Second Circuit cases in which a Title VII claim has been based on retaliation
against a complainant’s family member in response to a complainant’s protected activity.
However, it appears to the Court that a reasonable employee would be dissuaded from making or
31

supporting a charge of discrimination if the employee knew that the subject of their complaint
planned to impose pretextual disciplinary proceedings on a close family member. Indeed, the
Second Circuit’s First Amendment intimate association retaliation doctrine—pursuant to which a
§ 1983 claim can arise out of “retaliatory action [taken] against one family member based on the
conduct of another in exercising a First Amendment right,” Talley v. Brentwood Union Free Sch.
Dist., No. 08-CV-790, 2009 WL 1797627, at *6 (E.D.N.Y. June 24, 2009) (internal quotation
marks omitted) (citing Adler v. Pataki, 185 F.3d 35 (2d Cir. 1999))—provides tangential support
for such a proposition.
The specific circumstances surrounding the J.P. investigation—including, most notably,
Assistant Superintendent Mitchell’s decision to respect Plaintiff’s wishes and not hold a
mediation, 2015 Pistello Dep. at 113—raise some doubt as to whether it actually constituted a
materially adverse action in the context of the present case. However, since the Court finds that
Plaintiff’s Title VII retaliation claim should be dismissed on alternative grounds, it will
nonetheless assume, without deciding, that the J.P. investigation did rise to the level of a
materially adverse action.
c. Plaintiff’s Reassignment to the District’s Middle School
Plaintiff’s reassignment for the 2015–16 school year presents a similarly close question.
In its March 2017 Order, the Court held that “[a]n action designed to guarantee an employee’s
failure”—for example, reassigning a teacher to a class for which she lacked certification—“is
certainly one that . . . constitutes an adverse employment action.” March 2017 Order at 15 (citing
Ragusa v. Malverne Union Free Sch. Dist., 381 F. App’x 85, 90 (2d Cir. 2010) (per curiam)). But
Plaintiff herself admitted that she was certified to teach math to special education students. 2015
32

Pistello Dep. at 80. Furthermore, Plaintiff’s bald assertion that she was not certified to teach
reading because “[r]eading is not a special education service,” 2018 Pistello Dep. at 23, seems
dubious when considered alongside (1) the contrary assertions made by Lee Farrell—Oneida’s
“resident source for information concerning questions about teacher certification,” Farrell Aff.
¶ 5—who Plaintiff cited as the basis for her claim regarding the scope of her Special Education
Certification, 2015 Pistello Dep. at 73–74; and (2) the Blodgett Performance Evaluation, which
indicates that Plaintiff taught reading to special education students while employed by the City of
Syracuse during the 2005–06 school year.31
Courts in this Circuit have also held, however, that even absent a change in pay or title,
an employee transfer will constitute an adverse action within the context of a Title VII retaliation
claim if “‘a reasonable employee would have found the challenged action materially adverse.’”
Williams v. City of New York, No. 99-CV-2697, 2006 WL 2668211, at *21 (E.D.N.Y.
Sept. 11, 2006) (quoting White, 548 U.S. at 68). For example, transfers that result in “less
prestigious” work assignments have been deemed actionable under Title VII. See, e.g., De La
Cruz v. N.Y.C. Human Res. Admin. Dep’t of Soc. Servs., 82 F.3d 16, 21 (2d Cir. 1996).
Plaintiff claims, referencing “common knowledge” in the District, that her reassignment
to the middle school level would have had just such a negative effect on her employment.
2015 Pistello Dep. at 76–77. Once again, the Court is not entirely convinced by Plaintiff’s
assertion, particularly in light of (1) her admission that her duties at the middle school would

31

Admittedly, Plaintiff did not earn her Special Education Certification until
August 2008, meaning that certification did not apply during her time at Blodgett. But the fact
that Plaintiff had previously taught reading during the course of her special education instruction
lends credence to Superintendent Clarke’s claim that “[t]eaching reading in a [s]pecial
[e]ducation classroom[] is fundamental” to special education instruction. Clarke Aff. ¶ 65.
33

have been essentially the same as at the high school, 2018 Pistello Dep. at 29; and (2) her
eventual decision to leave the District in favor of a position teaching middle school students in
the City of Syracuse, 2015 Pistello Dep. at 66–67. Moreover, in Lucero v. Nettle Creek School,
566 F.3d 720 (7th Cir. 2009), the Seventh Circuit rejected a claim of material adversity that was
very similar to Plaintiff’s, finding that a teacher’s reassignment from a twelfth grade to a seventh
grade class was not a materially adverse employment action because the teacher “was not
reassigned to a position consisting of objectively less desirable duties.” Id. at 729.
Nonetheless, given the closeness of this question and the alternative grounds for dismissal
discussed below, the Court will once again assume, without deciding, that Plaintiff’s
reassignment constituted a materially adverse action.
2. Defendant’s Stated Reasons for the Adverse Actions
Proceeding to the second step in the McDonnell Douglas framework, the Court must now
determine whether Defendant has “articulate[d] some legitimate, nondiscriminatory reason” for
the J.P. investigation and Plaintiff’s end-of-year reassignment. McDonnell Douglas, 411 U.S.
at 802.
a. The J.P. Investigation
Neither of Defendant’s Memorandum or Reply offer a legitimate, non-retaliatory reason
for the J.P. investigation. However, the SMF addresses the J.P. investigation in some detail,
stating that J.P. was not “targeted” as Plaintiff claims, because “Defendant is required by law to
investigate and address student[s’] complaints under [New York’s] Dignity for [A]ll Students
Act.” SMF ¶ 80; see also N.Y. Educ. Law § 11, et seq. That statute requires “[t]he board of
education . . . of every school district [to] create policies . . . requir[ing] the principal,

34

superintendent[,] or the principal’s or superintendent’s designee to lead or supervise the thorough
investigation of all reports of . . . bullying” they receive. N.Y. Educ. Law § 13(1)(d). Therefore,
once the unnamed student complained to the District that J.P. had been bullying J.F., SMF ¶ 81;
2015 Pistello Dep. at 110–11, the District claims that it was legally obligated to pursue some sort
of investigation, even against Plaintiff’s wishes.
The Court can think of no more legitimate reason for initiating the J.P. investigation than
a legal mandate, and therefore finds that Defendant has carried its burden and articulated a
non-retaliatory reason for that behavior.
b. Plaintiff’s Reassignment to the District’s Middle School
In its Memorandum, Defendant claims that Plaintiff’s reassignment—which it describes
as “usual and customary,” Mem. at 23; see also Staff Assignment Changes (listing the thirty staff
assignment changes implemented by the District between the 2014–15 and 2015–16 school
years)—was implemented in order “to address the needs of [the District’s] students,” Mem. at 22.
The Reply goes one step further, arguing that the motive behind Defendant’s behavior was its
“need for a well-qualified middle school teacher in [s]pecial [e]ducation classes.” Reply at 9
(citing Clarke Aff. ¶ 61 and SMF ¶¶ 20, 29, 33, 34).
The Court finds those reasons to be sufficiently legitimate to carry Defendant’s burden at
the second stage of the McDonnell Douglas framework.
3. Plaintiff’s Rebuttal
Accordingly, “the burden shifts back to . . . Plaintiff to establish that but for h[er]
protected activities, the District would not have taken adverse action[s] against h[er].” Senese,
330 F. Supp. 3d at 775. As noted above, Plaintiff cannot carry that burden simply by showing

35

“that retaliation was a ‘substantial’ or ‘motivating’ factor” of Defendant’s behavior. Vega,
801 F.3d at 90–91. Rather, she must show—“by demonstrating weaknesses, implausibilities,
inconsistencies, or contradictions in the employer’s proffered legitimate, non[-]retaliatory
reasons for its action,” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d
Cir. 2013)—“that retaliation was a but-for cause of the adverse action,” Senese, 330 F. Supp. 3d
at 772 (internal quotation marks and citation omitted).
a. The J.P. Investigation
Just like Defendant’s Memorandum and Reply, neither Plaintiff’s Opposition nor her
Sur-Reply explicitly addressed the J.P. investigation. The Court will therefore look to Plaintiff’s
Response to the SMF, in which she denies all of Defendant’s claims regarding the J.P.
investigation by citing to (1) “Plaintiff’s Complaint ¶¶ 42–44;” and (2) “the Depo[sition] of
Clarke [at] p[age] 103[,] where . . . Clarke testified that the allegations against Plaintiff’s son
were unfounded.” Resp. SMF ¶¶ 80–85, 88. Generously construing those cited-to materials, the
Court interprets Plaintiff as arguing that Defendant’s stated reason for the J.P. investigation was
pretextual because (1) the investigation was conducted “without Plaintiff’s knowledge or
consent,” Compl. ¶ 42; (2) the allegations lodged against J.P. were determined to be
“unfounded,” id. ¶ 43; Clarke Dep. at 103; and (3) the entire investigation “was just another false
allegation and another attempt to target Plaintiff through her son [in an] unwarranted and
outrageous” manner, Compl. ¶ 44.
None of those arguments are sufficient to create a genuine dispute of material fact as to
whether Plaintiff’s Harassment Report was a but-for cause of the J.P. investigation. New York’s
Dignity for All Students Act required school administrators to perform a “thorough

36

investigation” of all bullying complaints with or without the consent of the student’s parents, and
the statute does not provide a safe harbor for administrators to avoid that investigation
requirement when they believe a complaint to be baseless or untrue. N.Y. Educ. Law § 13(1)(d).
Therefore, the “unfounded” nature of the allegations underlying the unnamed student’s
complaint—though possibly suggestive of the unnamed student’s motive in bringing the
complaint—say nothing about Mitchell’s motive in investigating it. Furthermore, none of the
materials in the record indicate, for example, that similar complaints against other students either
went uninvestigated or were subject to less stringent scrutiny. And, though the investigation did
occur within a few months of Plaintiff’s Harassment Report, “[t]emporal proximity alone is
insufficient to defeat summary judgment at the pretext stage.” Kwan, 737 F.3d at 847 (citing El
Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per curiam)).
The Court therefore finds that Plaintiff has not carried her burden at the pretext stage with
regard to the J.P. investigation.
b. Plaintiff’s Reassignment to the District’s Middle School
To rebut Defendant’s stated reasons for her reassignment, Plaintiff relies solely on the
temporal proximity between her Harassment Report and the reassignment, which she
characterizes as “sufficiently short to infer a relationship in the context of a motion for judgment
on the pleadings.” Opp’n at 27–28 (citing Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110
(2d Cir. 2010)). However, as the Court already noted, “[t]emporal proximity alone is insufficient
to defeat summary judgment at the pretext stage.” Kwan, 737 F.3d at 847 (citation omitted).
That does not mean, however, that the approximately four months between the
Harassment Report and Plaintiff’s reassignment cannot be considered by the Court. Indeed, the

37

Second Circuit has made clear that “a plaintiff may rely on evidence comprising her prima facie
case, including temporal proximity, together with other evidence . . . to defeat summary
judgment at [the pretext] stage.” Id. (citing Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001)).
Therefore, the Court will also examine the arguments Plaintiff raised in stating her prima facie
case, to see whether they lend support to Plaintiff’s claim that the reassignment “‘would not have
occurred in the absence of [Defendant’s] retaliatory motive.’” Opp’n at 28 (quoting Kwan,
737 F.3d at 846).
First, Plaintiff rejects Defendant’s characterization of the typicalness of Plaintiff’s
reassignment, noting that “Plaintiff was the only teacher reassigned [between the 2014–15 and
2015–16 school years] from the [h]igh [s]chool to the [m]iddle [s]chool and was the only teacher
reassigned from teaching English to teaching [m]ath and [r]eading.” Opp’n at 26. But during her
2018 deposition, Plaintiff expressly agreed that a teacher’s “year to year . . . assignments are
likely to change[] depending on the needs of the District.” 2018 Pistello Dep. at 19. In addition,
the Staff Assignment Changes document submitted by Defendant indicates, contrary to Plaintiff’s
representations, that four other teachers—including one other special education teacher—were
reassigned from the high school to the middle school prior to the 2015–16 school year. Staff
Assignment Changes at 60–62. Although inter-subject area reassignments appeared to have been
less common that summer, they too were not completely unheard of. See id. (listing the following
inter-subject area reassignments: (1) Kelley Brenon reassigned from creative writing to academic
intervention services; (2) Glenn Phillips reassigned from English to academic intervention
services; and (3) Jeannie Garrisi reassigned from chemistry to living environment). Finally, the
Court finds that the record largely supports Defendant’s position that Plaintiff’s reassignment

38

occurred not due to any retaliatory motive, but because the District “need[ed] a well-qualified
middle school teacher.” Reply at 9 (citations omitted); see also 2018 Pistello Dep. at 37
(including Plaintiff’s admission that she had prior experience teaching at the middle school
level); id. at 81 (including Plaintiff’s testimony about being asked to grade middle school-level
state exams during the 2013–14 school year).
Second, Plaintiff argues that, though she was “certified in [s]pecial [e]ducation K–12, . . .
her primary experience as a teacher at the District was as a [h]igh [s]chool [English Language
Arts] teacher . . . and she had never taught middle school math before.” Opp’n at 15. However,
the fact that Plaintiff had a strong background teaching high school students does not undermine
the District’s stated need for strong, qualified teachers at the middle school level. Reply at 9.
Also, though technically true, Plaintiff’s claim that she had never taught middle school math is
somewhat misleading. Plaintiff had taught before at the middle school level, and had even taught
math in the District during the 2009–10 school year, albeit for high school students. 2018 Pistello
Dep. at 17–18, 37. In any event, the District eventually removed Plaintiff’s math-based
responsibilities at her own request. Id. at 32.
Third, Plaintiff stated during her 2018 deposition that “if you are sent down to the middle
school, it’s usually because you cannot do something right in the high school.” 2015 Pistello
Dep. at 76–77. On the one hand, that observation would not, on its face, undermine Defendant’s
claim that it reassigned Plaintiff in order to better address the needs of its students. Mem. at 22. If
Plaintiff could truly provide stronger instruction at the middle school level, then her reassignment
could be justified as maximizing the educational benefit to the District’s students.

39

On the other hand, Plaintiff’s comment could plausibly be interpreted to mean that her
reassignment resulted in negative reputational effects, because it left her colleagues with the
impression that she was an ineffective high school teacher. However, that argument does not
squarely address any “weaknesses, implausibilities, inconsistencies, or contradictions” in
Defendant’s proffered rationale for the reassignment. Kwan, 737 F.3d at 846. Instead, it offers a
competing rationale for Defendant’s behavior; one that Plaintiff supports solely through her
tenuous references to the “common knowledge” in the District and some conversations she had
with her colleagues. 2015 Pistello Dep. at 76–77. At most, Plaintiff’s argument creates a “weak
issue of fact as to whether [Defendant’s] reason was untrue,” and it therefore cannot overcome
“abundant and uncontroverted evidence” that Defendant routinely reassigned teachers to different
roles depending on the needs of the District and its students. Reeves, 530 U.S. at 148. Therefore,
even considered alongside the reassignment’s temporal proximity to Plaintiff’s Harassment
Report, the Court finds that argument insufficient to carry Plaintiff’s burden “to bring forward
some evidence of pretext.” El Sayed, 627 F.3d at 933.
Accordingly, based on the foregoing analysis, the Court grants Defendant’s Motion as to
Plaintiff’s Title VII retaliation claim, which is dismissed in its entirety.
B. Plaintiff’s ADA and RA Claims
1. Retaliation
As the Court already explained in the March 2017 Order, the ADA and the RA “impose
identical requirements for assessing retaliation claims and therefore can be evaluated
simultaneously.” March 2017 Order at 16 (citing Rodriguez v. City of New York, 197 F.3d
611, 618 (2d Cir. 1999)). The Court also noted that “‘the framework used in analyzing retaliation

40

claims under Title VII [should also be used] in analyzing a claim of retaliation under the ADA.’”
Id. at 16–17 (alteration in original) (quoting Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,
183 F.3d 155, 159 (2d Cir. 1999)).
Therefore, the Court’s Title VII analysis, see supra Part IV.A, applies equally to
Plaintiff’s ADA and RA claims insofar as they are premised on the Second Professional Conduct
Meeting, the Fourth Professional Conduct Memorandum, the 2015 APPR, the J.P. investigation,
and/or Plaintiff’s 2015–16 teaching reassignment. However, because the protected activity
underlying Plaintiff’s ADA and RA claims—the November 2014 Email, see March 2017 Order
at 17–19—occurred on November 6, 2014, the Court must also analyze Plaintiff’s ADA/RA
claims with reference to all of the adverse actions alleged to have occurred after that date. Those
additional actions include: (1) Plaintiff’s removal from the Regents Exam scoring process;
(2) the December 2014 Rose Email; (3) the First, Second, and Third Professional Conduct
Memoranda; (4) the First Professional Conduct Meeting; and (5) the Counseling Memorandum.
a. Plaintiff’s Prima Facie Case—Materially Adverse Action
i. Regents Exam Scoring
The parties agree that the administration’s decision to prohibit Plaintiff from scoring the
January 2015 Regents Exams did not affect Plaintiff’s salary or benefits. 2018 Pistello Dep.
at 88–89; Resp. SMF ¶ 57. However, Plaintiff’s non-participation meant she would no longer be
available in case “there was some sort of discre[pancy] about what [one of her students] w[as]
trying to say.” 2018 Pistello Dep. at 82–83. As a result, the exam scores of Plaintiff’s students
could have suffered, which in turn may have led to a drop in Plaintiff’s performance evaluations
and, eventually, her termination. 2015 Pistello Dep. at 78 (“If you get two [negative performance

41

reviews] in a three-year period, you’re done.”). Furthermore, Plaintiff could persuasively argue
that the administration’s decision reduced her duties in a manner that curtailed opportunities for
professional growth, since participation in the grading process likely deepened Plaintiff’s
knowledge and understanding of the state’s academic standards.
Once again, the question of whether Plaintiff’s exclusion from the Regents Exam scoring
process constituted a materially adverse action is a close one.
While existential threats to a complainant’s career can qualify as materially adverse,
Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (“Examples of materially adverse
employment actions include termination of employment.” (internal quotation marks and citation
omitted)), the Court has several misgivings over applying that logic to the Regents Exam
decision. The link between Plaintiff’s scoring of Regents Exams and her potential termination is
both hypothetical and attenuated; it would require the Court to assume that Plaintiff’s students
would receive failing scores if Plaintiff was unavailable to interpret their papers, and that those
scores would further result in Plaintiff receiving two negative evaluations over the course of a
three-year period. Furthermore, in applying Feingold’s termination logic to the Regents Exam
decision, the Court would be tacitly supporting the position that an instructor must be allowed to
participate in the scoring of standardized state-level exams solely in order to secure her pupils’
(and, by extension, her own) success. The Court is not inclined to do so.
As to the effect of the administration’s decision on Plaintiff’s professional growth,
multiple courts in this Circuit have found that “significantly diminished material responsibilities”
can constitute a materially adverse action under certain circumstances. See, e.g., Vale v. Great
Neck Water Pollution Control Dist., 80 F. Supp. 3d 426, 434 (E.D.N.Y. 2015). But it is not clear,

42

based on the record, that Plaintiff’s exclusion from the grading process would have actually
resulted in a diminishment of her responsibilities, much less one that could be described as
“significant.” The Regents Exam scoring process was completely voluntary, 2018 Pistello Dep.
at 88–89, and therefore arguably did not qualify as one of Plaintiff’s “responsibilities.”
Moreover, Plaintiff had previously graded Regents Exams on numerous occasions, id. at 80–81,
making it unclear how much additional insight and professional experience Plaintiff would have
gained based on her continued participation in that process.
Given the closeness of this question, the Court is hesitant to definitively decide whether
the evidence supports Plaintiff’s prima facie case. However, since alternative grounds exist for
dismissing Plaintiff’s scoring-related retaliation claim, the Court will once again assume, without
deciding, that the Regents Exam scoring decision rose to the level of a materially adverse action.
ii. The First, Second, and Third Professional Conduct
Memoranda, the First Professional Conduct Meeting, the
Counseling Memorandum, and the December 2014 Rose Email
The First Professional Conduct Memorandum, the First Professional Conduct Meeting,
and the Counseling Memorandum all arose out of Plaintiff’s January 23, 2015 meeting with
Principal Mecca, in which she and Plaintiff discussed the proper scoring of a student’s exam.
Revised Counseling Mem. Similarly, the Second and Third Professional Conduct Memoranda
called Plaintiff to the Second Professional Conduct Meeting to discuss Plaintiff’s handling of the
D.J. incident. And the December 2014 Rose Email criticized Plaintiff for “fail[ing] to inform
[Rose] of the eleventh grade English scheduling issue in a timely manner,” and directed Plaintiff
to bring to Rose’s immediate attention “any issues involving IEPs[] or with special education
students,” or else risk “formal administrative action.” Dec. 2014 Rose Email.

43

Thus, all of those events arose out of seemingly legitimate concerns surrounding
Plaintiff’s performance in her role as an employee of the District, and could (at most) be
characterized as reprimands for Plaintiff’s perceived professional failings. None resulted in a
demotion or reduction in Plaintiff’s pay, and only the Revised Counseling Memorandum found
its way permanently into Plaintiff’s personnel file. See Uddin, 427 F. Supp. 2d at 429 (“[C]ourts
in this [C]ircuit have found that reprimands, threats of disciplinary action[,] and excessive
scrutiny do not constitute adverse employment actions in the absence of other negative results
such as a decrease in pay or being placed on probation.”). Therefore, much like the Second
Professional Conduct Meeting and Fourth Professional Conduct Memorandum, see supra
Part IV.A.1.a, the First, Second, and Third Professional Conduct Memoranda, the First
Professional Conduct Meeting, the Counseling Memorandum, and the December 2014 Rose
Email are all best described as “criticism” that was “necessary to allow [Plaintiff to develop,
improve[,] and avoid discipline,” rather than as materially adverse actions. Weeks, 273 F.3d
at 86; see also Boyle v. Lynch, 5 F. Supp. 3d 425, 438–39 (W.D.N.Y. 2014) (citing Weeks in
dismissing ADA retaliation claim based on issuance of a memorandum “reminding [plaintiff] of
his duties and obligations,” when memorandum “was not accompanied by any demotion or
decrease in pay”); Smiley v. Cassano, No. 10-CV-3866, 2012 WL 967436, at *7–8 (S.D.N.Y.
Mar. 21, 2102) (finding that post-complaint investigations and critiques of plaintiff’s
professional conduct could not give rise to ADA retaliation claim because they “f[e]ll within the
category of criticisms that are inherent and necessary parts of employee development within the
workplace”).

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The Court therefore finds that Plaintiff cannot maintain actionable ADA or RA claims
based solely on any of the First, Second, or Third Professional Conduct Memoranda, the First
Professional Conduct Meeting, the Counseling Memorandum, or the December 2014 Rose
Email.
iii. The Aggregated Actions
As already noted above, the Court must also evaluate whether all of the actions that
occurred during the relevant time period—including the December 2014 Rose Email, the First,
Second, Third, and Fourth Professional Conduct Memoranda, the First and Second Professional
Conduct Meetings, the Counseling Memorandum, and the 2015 APPR (collectively, the
“Aggregated Actions”)32—since “in the aggregate as even minor acts of retaliation can be
sufficiently substantial in gross as to be actionable.” Hicks, 593 F.3d at 165 (internal quotation
marks and citation omitted). However, the Second Circuit has cautioned with regard to
aggregated acts of retaliation that “‘[z]ero plus zero is [still] zero.’” Tepperwien, 663 F.3d at 572
(quoting MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 138 F.3d 33, 38 (2d Cir. 1998)). In other
words, “it is simply not true . . . that if a litigant presents an overload of irrelevant or
nonprobative facts, somehow the irrelevancies will add up to relevant evidence of discriminatory
intent.” Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 763 (7th Cir. 2001).
The Court finds that the compounded effect of the Aggregated Actions still does not
constitute a materially adverse action sufficient to support an ADA retaliation claim. True, all of

32

Since the Court has already determined that Defendant had legitimate, non-retaliatory
reasons for the J.P investigation and Plaintiff’s end-of-year teaching reassignment, it has not
included them in the list of Aggregated Actions and need not consider them when evaluating the
compounded effect of Plaintiff’s allegations.
45

the Aggregated Actions occurred within six months of Plaintiff’s November 2014 Email, and all
but one fell within a single three-month period. And, at least with regard to the Professional
Conduct Memoranda, Vice Principal Rogers confirmed that the occurrence of so many
remarkable events during such an abbreviated time period was not common. Rogers Dep.
at 30–31.
However, the Court has already determined that only one of the Aggregated Actions
resulted in a permanent disciplinary act—namely, the placement of the Revised Counseling
Memorandum into Plaintiff’s personnel file. All of the form-document Professional Conduct
Memoranda were removed from Plaintiff’s file, her 2015 APPR was eventually scored as “highly
effective” (the highest available rating), and, though the December 2014 Rose Email threatened
disciplinary action if Plaintiff continued to engage in certain behavior, no warning was placed in
Plaintiff’s file and no disciplinary action was taken.
Also, besides the proximity of the Aggregated Actions to the November 2014 Email, the
record provides no other evidence indicating that those actions were retaliatory in nature. They
were separately undertaken by three different District employees—Rose, Mecca, and
Rogers—none of whom ever specifically expressed any retaliatory sentiments to Plaintiff.
Moreover, the parties do not dispute the basic factual circumstances surrounding the events that
led to the Aggregated Actions (i.e., the eleventh grade English scheduling issue, the January 23,
2015 meeting between Plaintiff and Mecca, the February 4, 2015 meeting between Plaintiff and
Rogers, and the 2015 APPR), even though they have very different interpretations of their
importance. See, e.g., 2018 Pistello Dep. at 89–94 (claiming that “some [of the] things in [the
Revised Counseling Memorandum] still weren’t true,” but mirroring the Revised Counseling

46

Memorandum’s depiction of the factual circumstances underlying Plaintiff’s January 23, 2015
meeting with Mecca). Those agreed-upon factual circumstances, considered within the context of
Plaintiff’s broader case, make clear that the Aggregated Actions were not undertaken for
retaliatory reasons.
Finally, though the test is an objective one, the Court nonetheless finds it relevant that
Plaintiff was not actually deterred from complaining following the November 2014 Email. See
Tepperwien, 663 F.3d at 572 (considering, within the context of a retaliation aggregation
analysis, a plaintiff’s tendency to continue complaining following alleged adverse actions, even
though “the [relevant] test is an objective one”). On the contrary, Plaintiff immediately sent a
barbed reply to the November 2014 Email, copying in nearly all of the District’s administrators,
in which she accused Rose of “threaten[ing her]” and “try[ing] to label [her] an insubordinate
worker.” Dec. 2014 Pistello Email. And later, Plaintiff also complained—both on her own and
with the assistance of her union representative and attorney—by (1) objecting to the contents of
the Counseling Memorandum; (2) filing the Harassment Report; (3) challenging the contents of
her 2015 APPR; and (4) requesting a change in her 2015–16 teaching assignment.
The Court therefore finds that, considering all of the relevant context, the Aggregated
Actions “still did not adversely affect [Plaintiff] in any material way,” because “[z]ero plus zero
is [still] zero.” Tepperwien, 242 F.3d at 572 (internal quotation marks and citation omitted); see
also Szwalla v. Time Warner Cable, LLC, 135 F. Supp. 3d 34, 53–54 (N.D.N.Y. 2015) (declining
to find that an adverse action arose out of the compounded effect of (1) plaintiff’s reassignment
to remote managers; (2) a stagnation in her job duties; (3) written warnings for plaintiff’s

47

“undisputed poor sales performance” unaccompanied by further disciplinary action; and (4) her
employer’s refusal to create an “inside sales position” in plaintiff’s desired geographic location).
Therefore, insofar as Plaintiff’s ADA/RA retaliation claims are based off the Aggregated
Actions, those claims fail as a matter of law.
b. Defendant’s Stated Reason for the Regents Exam Scoring Decision
Defendant claims that its January 2015 decision “not to have individuals not certified in
English[—]such as Plaintiff[—]grade English Regents Examinations” “was a general decision
and not one directed at Plaintiff.” Reply at 7; Mem at 8. That accords with Superintendent
Clarke’s testimony, which implied that all of the academic departments in the District
implemented that change simultaneously, with the result being that only “teachers that were
certified in [a given subject] area” were allowed to score Regents Exams in that subject. Clarke
Dep. at 45.
The Court finds Defendant’s stated reason sufficiently legitimate to carry Defendant’s
burden at the second stage of the McDonnell Douglas framework.
c. Plaintiff’s Rebuttal
Plaintiff devotes very little attention to the Regents Exam scoring decision in her briefing,
arguing only that Defendant’s stated reason is pretextual because (1) there existed temporal
proximity between the decision and Plaintiff’s protected activity; and (2) Plaintiff had graded
Regents Exams in the past. See Opp’n at 9 (“Shortly []after [the November 2014 Email], Plaintiff
was informed that she would not be one of the graders for the English Regents [E]xam, even
though she had been a grader for many years and normally taught the review class.” (citing
Compl. ¶¶ 27–28 and 2018 Pistello Dep. at 81, 110–11)).

48

The Court finds those arguments unavailing. Without more, temporal proximity is
insufficient to carry Plaintiff’s burden at the pretext stage. Hicks, 593 F.3d at 164. And Plaintiff’s
past participation in the grading process in no way undermines Defendant’s stated rationale;
Defendant’s decision was geared towards ensuring that all graders were formally certified in a
given subject area, not in maximizing the experience they brought to the grading process.
Plaintiff may have more convincingly argued that she was the only teacher negatively affected by
the District’s decision, such that the decision was actually intended to target her regardless of
Defendant’s representation that it was implemented District-wide. However, Plaintiff does not
make, and the record does not support, such a claim.
The Court therefore finds that Plaintiff’s ADA/RA retaliation claim cannot survive
Defendant’s Motion and must be dismissed.
2. Retaliatory Hostile Work Environment
“ADA hostile work environment claims are evaluated under the same standard as
Title VII.” March 2017 Order at 21 (citing Zavala v. Cornell Univ., 9 F. Supp. 3d 213, 220
(N.D.N.Y. 2014 (Kahn, J.). Therefore, to establish a claim based on a retaliatory hostile work
environment under the ADA, “a plaintiff must satisfy the same standard that is applied generally
to hostile work environment claims regarding the severity of the alleged conduct.” Sclafani v. PC
Richard & Son, 668 F. Supp. 2d 423, 438 (E.D.N.Y. 2009). That standard requires a plaintiff to
show “that the discriminatory treatment at issue was ‘sufficiently severe or pervasive to alter the
conditions of [her] employment and create an abusive working environment’ and that the

49

hostility occurred because of the protected characteristic of disability.”33 Dollinger v. N.Y. State
Ins. Fund, 726 F. App’x 828, 831 (2d Cir. 2018) (quoting Tolbert v. Smith, 790 F.3d 427, 439
(2d Cir. 2015)).
Applying that standard to the undisputed facts of this case leaves no doubt that Plaintiff’s
retaliatory hostile work environment claim must be dismissed. The Court has already found that
Defendant provided legitimate, non-retaliatory, and unrebutted reasons for the Regents Exam
scoring decision, see supra Parts IV.B.1.b and IV.B.1.c, the J.P. investigation, see supra
Parts IV.A.2.a and IV.A.3.a, and Plaintiff’s 2015–16 teaching reassignment, see supra
Parts IV.A.2.b and IV.A.3.b. Those legitimate rationales preclude Plaintiff from arguing that any
of those three actions “occurred because of the protected characteristic of disability.” Dollinger,
726 F. App’x at 831. Furthermore, even assuming that all of the Aggregated Actions occurred in
response to Plaintiff’s advocacy on behalf of her disabled students, the Court has already
determined that those actions considered collectively are insufficient to state a materially adverse

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Following the Supreme Court’s decision in White, several courts in this Circuit have
questioned whether “a plaintiff could establish a prima facie case for retaliatory hostile work
environment via a materially adverse action, as would apply to a retaliation claim, rather than an
adverse employment action, as would normally apply in a hostile work environment claim.”
Bacchus v. N.Y.C. Dep’t of Educ., 137 F. Supp. 3d 214, 244 n.22 (E.D.N.Y. 2015) (internal
quotation marks omitted). “In other words, the question was raised whether plaintiffs attempting
to show a retaliatory hostile work environment could potentially survive summary judgment by
showing that they were subjected to conduct, which although objectionable enough that it might
have dissuaded a reasonable worker from making or supporting a charge of discrimination, did
not meet the severe or pervasive threshold ordinarily required in hostile work environment
claims.” Matthews v. Corning Inc., 77 F. Supp. 3d 275, 297 n.7 (W.D.N.Y. 2014) (internal
quotation marks and citation omitted). The vast majority, with which the Court agrees, have
answered that question in the negative, reasoning that the Supreme Court “provided no indication
in White that it intended to expand the reach of the judicially-created claim of retaliatory hostile
work environment in addition to lowering the burden of making out a claim based on the
retaliatory acts of an employer.” Cajamarca v. Regal Entm’t Grp., 863 F. Supp. 2d 237, 254
(E.D.N.Y. 2012).
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action, see supra Part IV.B.1.b., much less that they could have created a sufficiently severe or
pervasive work environment, see Cajamarca, 863 F. Supp. 2d at 254 (describing the retaliation
standard as less burdensome than the hostile work environment standard); Bacchus, 137 F. Supp.
3d at 244 n.22 (same); Matthews, 77 F. Supp. 3d at 296–298, 297 n.7 (same).
The Court will therefore grant Defendant’s Motion and dismiss Plaintiff’s retaliatory
hostile work environment claim.
3. Constructive Termination
Although not mentioned in the March 2017 Order, Plaintiff also appears to argue in her
Complaint that she was constructively terminated from the District,34 see Compl. ¶ 65 (“The
hostile work environment created by the District’s retaliation forced Plaintiff to resign,
amounting to constructive discharge.”), and both Plaintiff’s and Defendant’s papers address such
a claim, see Mem. at 25–27; Opp’n at 29.
It is well settled that “[a]n adverse employment action may also take the form of a
constructive discharge.” Caskey v. Cty. of Ontario, 560 F. App’x 57, 59 (2d Cir. 2014); see also
Adams v. Festival Fun Parks, LLC, 560 F. App’x 47, 49 (2d Cir. 2014) (same); Giambattista v.
Am. Airlines, Inc., 5 F. Supp. 3d 284, 292 (E.D.N.Y. 2014) (same). A constructive occurs “when
the employer, rather than acting directly, deliberately makes an employee’s working conditions
so intolerable that the employee is forced into an involuntary resignation.” Morris v. Schroder

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Plaintiff does not clarify whether she intends her constructive discharge allegation to
state a standalone ADA/RA claim, see Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62,
73–75 (2d Cir. 2000), or to act as separate proof that she suffered an adverse action, see Adamas
v. Festival Fun Parks, LLC, 560 F. App’x 47, 49 (2d Cir. 2014) (“A plaintiff can . . . meet th[e
adverse action] prong if [s]he was constructively discharged.”). But for the purposes of the
Court’s analysis, that distinction is immaterial.
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Capital Mgmt. Int’l, 481 F.3d 86, 88 (2d Cir. 2007) (internal quotation marks omitted). “Working
conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the
employee’s shoes would have felt compelled to resign.” Serricchio v. Wachovia Sec. LLC,
658 F.3d 169, 185 (2d Cir. 2011). In this District, that means “that to demonstrate constructive
discharge, [a] plaintiff must demonstrate harassment that is more severe and pervasive than that
required to show a hostile work environment.” Ternullo v. Reno, 8 F. Supp. 2d 186, 192
(N.D.N.Y. 1998) (citing Christopher-Ketchum v. Agway Energy Prods., 988 F. Supp. 610
(N.D.N.Y. 1997)).
Accordingly, since the Court has already determined that Plaintiff cannot maintain her
claims against Defendant under a hostile work environment, retaliation, or retaliatory hostile
work environment theory, any constructive discharge claim purportedly stated in the Complaint
must also fail.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion (Dkt. No. 36) is GRANTED in its entirety; and it

is further
ORDERED, that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED, that the Clerk is directed to close this case; and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on the
parties in accordance with the Local Rules.

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IT IS SO ORDERED.

DATED:

March 21, 2019
Albany, New York

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