Powers v. Lyons Central School District et al

Filing 50

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 44 Delfendant's Motion for Summary Judgment; denying 47 Plaintiff's Cross-Motion for Summary Judgment; and dismissing the Complaint in its entirety with prejudice. ( Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/12/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LINDY POWERS,
Plaintiff,
-vs-

No. 6:11-CV-06319(MAT)
DECISION AND ORDER

LYONS CENTRAL SCHOOL DISTRICT,
Defendant.

I.

Introduction
Pro

se

plaintiff

Lindy

Powers

(“plaintiff”),

a

school

counselor formerly employed by defendant Lyons Central School
District (“defendant”), brings this action pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the
Pregnancy Discrimination Act (“PDA”) which amended Title VII (see
42

U.S.C.

§

2000e(k)),

claiming

that

defendant

discriminated

against her on the basis of gender, by denying her tenure and
forcing her to resign her position.
Defendant moves for summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure. For the reasons set forth
below, the defendant’s motion is granted.
II.

Background
Plaintiff

commenced

this

action,

proceeding

pro

se,

on

June 28, 2011. Doc. 1. Plaintiff was appointed as an elementary
social worker with the defendant school district in February 2006.
Doc. 44-16, at ¶ 2. Plaintiff’s complaint alleges that “[i]n the
spring of 2007 [plaintiff’s former supervisor Mark Clark] started

to act differently” toward her, and that a coworker, Matthew Cook,
told plaintiff that Mr. Clark stated that he “did not think [she]
could handle the job because [she] was a woman.” Id. at 5. The
complaint also alleges that during monthly teacher improvement plan
(“TIP”) meetings, Mr. Clark stated on “numerous” occasions that
plaintiff

was

not

able

to

restrain

her

children

due

to

her

condition (pregnancy). Id. at 6. Plaintiff alleged that she made
the Superintendent aware of this on approximately June 16, 2009,
and thereafter, she was “forced to resign.” Id. Reading this pro se
complaint liberally as the Court is required to do (see Corcoran v.
New York Power Auth., 202 F.3d 530, 536 (2d Cir. 1999)), the Court
construes claims for discrimination and retaliation.
In

her

deposition,

plaintiff

testified

that

she

was

on

maternity leave from March through May 2007, then returned to work
part-time through the end of the 2006-2007 school year; she went
out on maternity leave again from January through March 2009.
Doc. 44-5, at 2-3. As of September 2007, plaintiff was a full-time
school counselor. Id. at 3. Plaintiff testified that a female
replaced her in the school counselor position after plaintiff
resigned, and that the faculty was made up of a majority of women.
Id. at 7-8.
Plaintiff testified that school counselors were sometimes
required to perform “therapeutic restraints” of children, which
required “full-on body contact with a child in what they call a

2

therapeutic wrap . . . wrapping your arms and your legs around a
physically thrashing and violent student.” Id. at 4. When asked why
she had not performed any therapeutic restraints during either of
her pregnancies, plaintiff testified:
A.

My husband and I . . . were talking [sic] all
precautions to protect myself and to protect our
children, and Mr. Clark was aware of that. I did
inform him of that when I told him I was pregnant
the first time.

Q.

So because of your pregnancies you were unable to
perform therapeutic restraints?

A.

Correct.

Id. Plaintiff went on to testify that she told Mr. Clark that she
and her husband “felt it was best that [she] not do any restraining
throughout [the] pregnancy to protect [her]self and to not harm
[her]

unborn

child,”

and

that

Mr.

Clark’s

response

was

to

congratulate her. Id. at 5.
The record contains several evaluations documenting various
deficiencies in plaintiff’s job performance, and reflects that
plaintiff was placed on a teacher improvement plan (“TIP”) during
the 2007-2008 school year. In a June 2008 meeting regarding the
TIP, Mr. Clark cited a number of issues with her work performance,
specifically

with

plaintiff’s

attention

to

student

services

requests. Id. at 9; Doc. 44-6. Mr. Clark wrote a memo to plaintiff
(which was signed by plaintiff and Mr. Clark) which cited a prior,
January 2008 meeting in which similar performance issues were
discussed. Doc. 44-6. Plaintiff was advised of several measures she
3

was expected to take until her next review, including keeping
weekly logs of her contacts and participating in monthly debriefing
meetings regarding her progress. Id. The record contains subsequent
evaluations for the 2008-2009 school year, documenting continued
performance issues. Doc. 44-11 (teacher evaluation forms describing
issues in consistency, flexibility, in-service follow through,
creative problem solving, interruption of instructional time, and
self-directedness).
By letter dated March 31, 2009, Superintendent Richard P.
Amundson offered to extend plaintiff’s probationary period (which
was

slated

to

end

June

30,

2009)

through

February

1,

2010.

Doc. 44-7. Mr. Clark attested that he initially conveyed this offer
in January 2009. Doc. 44-14, at ¶ 27. This agreement, known as a
“Juul agreement,” would have waived the District’s right to dismiss
plaintiff at the end of June 2009 and extended the probationary
term through February 1, 1010. Id. at ¶ 28; see generally Juul v.
Bd. of Educ., 76 A.D.2d 837, 838 (2d Dep't 1980) (holding that an
employee facing tenure denial may agree to extended probationary
period and reconsideration of tenure determination at the end of
the extension), aff'd, 430 N.E.2d 1319 (1981). Superintendent
Amundson noted that plaintiff’s TIP would still be in effect when
she returned from maternity leave. Id. Plaintiff failed to respond
to this offer, and the Superintendent notified her by letter dated
April 30, 2009 that he would recommend to the Board of Education

4

that her service be discontinued. Doc. 44-8. By letter dated
June 23, 2009, plaintiff resigned. Doc. 44-9.
At plaintiff’s request, the Superintendent supplied reasons
for not recommending her for tenure. Doc. 44-10. These reasons
included the problems with her work performance, which were cited
in plaintiff’s previous performance evaluations. Id. Plaintiff was
also

informed

of

previously

reported

failures

to

act

on

recommendations of supervisory personnel, failures to comply with
job description responsibilities, inadequate communication with
staff regarding student services requests, and a failure to take
initiative regarding job responsibilities. Id. In total, Mr. Clark
cited 31 separate deficiencies in job performance. Id.
Matthew Cook, who was one of plaintiff’s coworkers during the
relevant time period, submitted an affidavit stating that “[a]fter
plaintiff was advised that her services be discontinued, she made
allegations that she was discirminated against by virtue of her
gender.” Doc. 44-13, at ¶ 12. Mr. Cook, also the school’s Title IX
officer, was assigned to investigate plaintiff’s initial complaint
of discrimination. Id. at ¶ 13. During that investigation, he
learned that plaintiff had identified him as a witness and “alleged
that [Mr. Cook] told [plaintiff] that Mark Clark had questioned her
ability to perform her work because she was a woman.” Id. at ¶ 14.
Mr. Cook denies that this exchange ever occurred, and denies that
Mr. Clark “even indicated to [him] that he questioned [plaintiff’s]

5

ability to perform her job because of her gender.” Id. at ¶¶ 15-16.
According to Mr. Cook, “while [plaintiff] was under professional
scrutiny

relative

to

her

performance,

[he

had]

no

personal

knowledge of any intimidation or harassment on the part of the
District representative toward [plaintiff].” Id. at ¶ 18.
Mr. Clark also submitted an affidavit, in which he denied
making any discriminatory statements regarding plaintiff and denied
taking any discriminatory actions against plaintiff. Doc. 44-14,
¶¶ 15-17. Mr. Clark also pointed out that, during plaintiff’s
employment, “there were 20 other maternity leaves for employees,”
and that during that time there were no “complaints relative to
pregnancy or maternity leave.” Id. at ¶¶ 12, 14. He attested that
plaintiff “at no time made any complaint to the District that she
was treated unfairly because of her gender or pregnancy.” Id. at
¶

13.

Mr.

Clark

stated

that,

despite

developing

a

TIP

and

attempting “active efforts to improve [p]laintiff’s performance,
[plaintiff] was unable and/or unwilling to meet the expectations of
the District.” Id. at ¶ 23. According to Mr. Clark, plaintiff never
responded

to

the

Superintendent’s

offer

to

continue

her

probationary period until February 1, 2010. Id. at ¶ 25. Instead,
as noted above, she resigned her position on June 22, 2009.
Doc. 44-9.
Plaintiff

submitted

motion

papers

which

were

apparently

intended as a response to defendant’s motion and a cross-motion for

6

summary judgment.1 Doc. 47. These papers consist primarily of
documents from plaintiff’s unemployment proceedings, where she made
similar allegations to those made in this case. Doc. 47, at 2. The
remainder of plaintiff’s motion papers consist of evaluation forms
already submitted by defendant with its motion.
In the unemployment proceeding, Superintendent Amundson stated
that the first he heard of plaintiff’s complaint of discrimination
was

after

she

had

been

denied

tenure,

and

he

initiated

an

investigation through his Title IX officer because of the concern
about potential retaliation. Id. at 3-4. Also in the unemployment
proceeding, a secretary, Thea Hall, stated that she “remember[ed]
Mark Clark, principle [sic] making a comment to the effect that the
claimant couldn’t do take downs because she was a woman.” Id. at 5.
Laura Pyke, union representative, stated that she worked with
plaintiff to address perceived issues with her TIP. Id. at 6. Ms.
Pyke believed that Mr. Clark “set[] the [plaintiff] up to fail” by
making changes and additions to her TIP. Id. However, Ms. Pyke’s
statement

does

not

allege

that

1

he

took

such

action

because

These papers were submitted on April 20, 2015, ten days past
the due date. See docs. 45, 47. Defendant argues that the Court
should reject the papers as untimely. Plaintiff, who proceeds pro
se, is entitled to “special latitude” in filing motion responses,
and considering this response was only ten days late, the Court
will consider it as if it had been timely filed. See, e.g., Singh
v. New York State Dept. of Taxation and Fin., 911 F. Supp. 2d 223,
233 (W.D.N.Y. 2012) (noting district court’s “duty not only to
liberally interpret pro se submissions, but also to give pro se
plaintiffs ‘extra consideration’ and ‘special latitude’ on summary
judgment motions”) (internal citation omitted).
7

plaintiff was a woman, but rather, that Mr. Clark took this
approach

“when

president

he

[did

John Lawson

not]

want

stated that

someone
he

there.”

was

never

Id.

Union

advised

that

plaintiff was being “harassed or discriminated against,” but was
aware of her contact with the union regarding performance issues.
Id.

at

7.

Mr.

“personality

Lawson

conflict”

stated

that

between

he

believed

plaintiff

and

there

Mr.

was

Cook,

a

and

Mr. Lawson’s response was to advise plaintiff that she “need[ed] to
do her job.” Id.
III. Standard of Review
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
“[t]he court shall grant summary judgment if the movant shows that
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).
Once the movant has met this burden, the burden shifts to the
nonmovant

who

must

“come

forward

with

evidence

to

allow

a

reasonable jury to find in his favor.” Lizardo v. Denny's, Inc., 270
F.3d 94, 101 (2d Cir. 2001); see also Celotex Corp. v. Catrett, 477
U.S.

317,

325–27

(1986).

The

court

must

draw

all

factual

inferences, and view the factual assertions in materials such as
affidavits, exhibits, and depositions in the light most favorable
to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986); Celotex Corp., 477 U.S. at 322. However, a
nonmovant benefits from such factual inferences “only if there is
8

a ‘genuine’ dispute as to those facts.” Scott v. Harris , 550 U.S.
372, 380 (2007), quoting Fed. R. Civ. P. 56(c).
Where,

as

here,

the

party

opposing

summary

judgment

is

proceeding pro se, the Court must “read the pleadings . . .
liberally and interpret them to raise the strongest arguments that
they suggest.” Corcoran, 202 F.3d at 536. However, “proceeding pro
se does not otherwise relieve [the opposing party] from the usual
requirements of summary judgment.” Fitzpatrick v. N.Y. Cornell
Hosp., 2003 WL 102853, *5 (S.D.N.Y. 2003).
IV.

Discussion
A.

Discrimination

The “ultimate issue” in any employment discrimination case is
whether the plaintiff has met her burden of proving that the
adverse employment decision was motivated at least in part by an
“impermissible reason,” i.e., that there was discriminatory intent.
Fields

v.

N.Y.

State

Office

of

Mental

Retardation

&

Dev'l

Disabilities, 115 F.3d 116, 119 (2d Cir. 1997). In the absence of
direct evidence of discrimination, the analysis turns to the
burden-shifting McDonnell Douglas framework. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). First, a plaintiff must
establish a prima facie case of unlawful discrimination by showing
that (1) she is a member of a protected class (2) who performed her
job satisfactorily (3) but suffered an adverse employment action
(4)

under

circumstances

giving
9

rise

to

an

inference

of

discrimination (or retaliation). See McDonnell Douglas, 411 U.S. at
802, 802 n.13 The burden then shifts to defendant to articulate a
legitimate,

nondiscriminatory

reason

for

the

alleged

adverse

employment action. See id. at 803-804. The burden then returns to
plaintiff,

to

supply

evidence

that

the

legitimate,

nondiscriminatory reason offered by the defendant is a pretext. See
id.
Reading plaintiff’s submissions in a light most favorable to
her,

the

Court

will

assume,

without

deciding,

that

she

has

established her prima facie case. Defendant, however, has produced
a

legitimate,

tenure.

nondiscriminatory

Defendant

submitted

reason

records

for

of

denying

plaintiff’s

plaintiff
repeated

evaluations, which documented multiple deficiencies in her job
performance.

Doc.

44-11.

There

is

no

dispute

that

plaintiff

received these evaluations and that she was aware of her placement
on a TIP, as plaintiff submitted copies of these evaluations as
well.

Poor

work

performance

constitutes

a

legitimate,

nondiscriminatory reason for termination. See, e.g., Lynch v. Nat’l
Fuel Gas Dist. Corp., 25 F. Supp. 358, 366 (2014).
Plaintiff’s submission, however, does not refute defendant’s
reason by producing any evidence of a pretext. Although plaintiff
submitted a statement that she herself made during her unemployment
proceeding, which suggests (although it does not explicitly state)
that plaintiff received poor evaluations and was placed on the TIP

10

as a pretext for discrimination, none of her motion papers contain
statements from others substantiating such an allegation. Moreover,
plaintiff’s

own

statement

does

not

substantively

address

the

allegations of poor work performance nor does it describe how she
performed her job in a satisfactory manner. Plaintiff cannot rely
solely on her own self-serving statements to overcome her burden on
summary judgment. See, e.g., Morales v. NYS Dep't of Labor, 865 F.
Supp. 2d 220, 248-49 (N.D.N.Y. 2012), aff'd sub nom., Morales v.
New York State Dep't of Labor, Div. of Employment Servs., 530 F.
App'x 13 (2d Cir. 2013) (“To defeat summary judgment on the basis
of pretext, plaintiff may not rely solely upon her own self-serving
and

conclusory

statements

that

[her

employer]

terminated

her

because of an inappropriate animus.”) (citing Van Zant v. KLM Royal
Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996)).
The statements submitted by plaintiff from the Superintendent
and union representatives do not support an allegation that reports
of plaintiff’s poor performance were a pretext for Mr. Clark
discrimination against her on the basis of gender. At most, a
personality conflict is alleged. Moreover, secretary Thea Hall’s
statement, in which she reported that she heard Mr. Clark “making
a comment to the effect that the claimant couldn’t do take downs
because she was a woman,” is actually consistent with plaintiff’s
own testimony, in which she admitted that she requested that she
not perform therapeutic restraints as a result of her

11

pregnancy.

Accordingly, I find that this stray remark is insufficient to
support a claim for discrimination. See Dixon v. Int’l Fed’n of
Accountants, 416 F. App’x 107, 109–10 (2d Cir. 2011) (quoting, with
approval, Danzer v. Norden Systems, Inc., 151 F.3d 50, 56 (2d Cir.
1998) (“Stray remarks, even if made by a decision maker, do not
constitute sufficient evidence [to support] a case of employment
discrimination.”) (emphasis supplied).
Additionally, the evidence that the person hired into the job
to replace plaintiff was a woman, that 20 maternity leaves were
taken by various women during plaintiff’s employment yet none
complained of discrimination, and that most of the faculty at
plaintiff’s

school

were

women,

belies

plaintiff’s

conclusory

assertions that the decision to deny her tenure was done with
discriminatory intent. See Romanello v. Shiseido Cosmetics Am.
Ltd., 2002 WL 31190169, at *6 (S.D.N.Y. Sept. 30, 2002) (pretext
not present where, among other circumstances, there was evidence
that

gender

discrimination

plaintiff

was

replaced

by

another

woman), aff'd, 71 F. App'x 880 (2d Cir. 2003); Sookdeo-Ruiz v. GCI
Group, 2001 WL 121942, *4 (S.D.N.Y. Feb. 13, 2001) (in holding no
pretext was shown, noting “the fact that 12 other women employees
went on maternity leave [during plaintiff’s employment] without
negative repercussions”), aff’d 31 F. App’x 17 (2d Cir. 2002);
Gordon v. Fenniman, 1998 WL 126062, at *6-7 (S.D.N.Y. Mar. 19,
1998) (finding no evidence of pretext where there was evidence that

12

the employer historically had accommodated female employees taking
maternity leave).
Because

plaintiff

has

not

met

her

burden

of

overcoming

defendant’s legitimate, nondiscriminatory reason for her dismissal,
defendant is entitled to summary judgment on the discrimination
claim.
B.

Retaliation

Plaintiff’s retaliation claim is also analyzed using the
McDonnell Douglas burden-shifting framework. See Zann Kwan v.
Andalex Group LLC, 737 F.3d 834, 844 (2d Cir. 2013). A plaintiff
makes out a prima facie case of retaliation by showing: (1) her
participation in a protected activity known to the defendant;
(2) an employment action disadvantaging the plaintiff; and (3) a
causal connection between the protected activity and the adverse
employment action. See Schnabel v. Abramson, 232 F.3d 83, 90
(2d Cir. 2000). Reading the pleadings in the light most favorable
to plaintiff, even assuming plaintiff has established her prima
facie case, her retaliation claim fails for the same reason that
her discrimination claim fails. Plaintiff has not produced any
evidence of a pretext sufficient to rebut defendant’s legitimate,
nondiscriminatory reason for her dismissal, which was her poor job
performance.
Plaintiff alleges, in her motion papers, that she complained
about discrimination against her as early as 2007 to Mr. Cook and

13

to union representatives. Doc. 47, at 2. Taking the evidence in a
light most favorable to plaintiff, the Court will assume that this
protected activity occurred, although it is noted that the union
representatives’ statements submitted by plaintiff, as well as
Mr. Cook’s affidavit, refute that allegation. As to the second
element, negative performance evaluations and denial of tenure are
adverse employment actions under the retaliation analysis. See
Tolbert v. Smith, 790 F.3d 427, 436 (2d Cir. 2015) ("Extending an
employment relationship by one year by itself may not qualify as an
adverse employment action. But when coupled with the denial of
tenure, it is assuredly an adverse employment action."); Zelnik v.
Fashion Inst. of Tech., 464 F.3d 217, 226 (2d Cir. 2006) (finding
"negative evaluation letters" to constitute adverse employment
action in the context of a retaliation claim).
In

the

established
protected

absence

of

“indirectly,”
activity

was

direct
either:
followed

evidence,
(1)

“by

closely

causation
showing
by

may
that

be
the

discriminatory

treatment”; or (2) “through other circumstantial evidence such as
disparate treatment of fellow employees who engaged in similar
conduct.” Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117
(2d Cir. 2000). The Court notes that, under a similar analysis as
the discrimination claim, the single overheard remark attributed to
Mr. Clark is insufficient to support plaintiff’s claim that it is
direct evidence of retaliation against her. See, e.g., Alexander v.

14

Bd. of Educ. of City Sch. Dist. of City of New York, 2015 WL
2330126, *5 (S.D.N.Y. May 14, 2015) ("[I]solated and stray remarks,
without

more,

are

insufficient

to

raise

an

inference

of

retaliation.").
Other than that stray remark, the only evidence upon which
plaintiff relies in terms of causation is a temporal proximity of
the

protected

activity

to

the

adverse

actions.

“[E]ven

if

[plaintiff] could successfully establish [her] prima facie case by
relying on the temporal proximity between [her protected activity]
and termination, it is well-settled that temporal proximity alone
is

insufficient

nondiscriminatory

to

overcome

reason

for

an

employer's

terminating

a

legitimate,
plaintiff's

employment[.]” Deebs v. Alstom Transp., Inc., 550 F. Supp. 2d 385,
393 (W.D.N.Y. 2008) aff'd, 346 F. App'x 654 (2d Cir. 2009); see
Simpson v. New York State Dep't of Civil Servs., 166 F. App’x 499,
500, 502 (2d Cir. 2006) (even where prima facie case can be
established

through

temporal

proximity,

“without

more,

such

temporal proximity is insufficient to satisfy [plaintiff's] burden
to bring forward some evidence of pretext”).
I find that defendant has come forward with a legitimate,
nondiscriminatory reason supporting plaintiff’s dismissal, because
of her poor job performance. Because plaintiff has not produced
evidence of pretext, defendant is entitled to summary judgment on
the retaliation claim.

15

V.

Conclusion
For the reasons stated above, defendant’s motion for summary

judgment (Doc. 44) is granted in its entirety, plaintiff’s crossmotion (Doc. 47) is denied, and the complaint is accordingly
dismissed in its entirety with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

August 12, 2015
Rochester, New York.

16