Thomas v. N.Y.C. Dep't Of. Educ. ( 2022 )

21-1799-cv
Thomas v. N.Y.C. Dep’t of. Educ.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order
in a document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 22nd day of June, two thousand twenty-two.
PRESENT: JOSÉ A. CABRANES,
MICHAEL H. PARK,
MYRNA PÉREZ,
Circuit Judges.
_____________________________________
ANNA-MARIA THOMAS, ED. D.,
Plaintiff-Appellant,
v. 21-1799-cv
NEW YORK CITY DEPARTMENT OF
EDUCATION, FKA Board of Education of the
City School District of the City of New York,
JOEL I. KLEIN, Individually and as Chancellor
of the City School District of the City of New
York, ROBERT FINLEY, Individually and in his
official capacity as Principal of Brooklyn High
School of the Arts, JOHN REEDY, Individually
and in his official capacity as Assistant
Principal of Brooklyn High School of the Arts,
DANIEL PARADIS, Individually and in his
official capacity as Teacher at Brooklyn High
of the Arts, MARGARET LACEY-BERMAN,
Individually and in her official capacity as
Principal of Brooklyn High School of the Arts,
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Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: Anna-Maria Thomas, pro se, Brooklyn,
NY.
FOR DEFENDANTS-APPELLEES: Deborah A. Brenner & Kate Fletcher, for
Georgia M. Pestana, Corporation Counsel
of the City of New York, New York, NY.
Appeal from a June 28, 2021 order and June 29, 2021 judgment entered by the United States
District Court for the Eastern District of New York (Eric Komitee, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the June 28, 2021 order and June 29, 2021 judgment of the
District Court be and hereby are AFFIRMED.
Plaintiff Anna-Maria Thomas, who is proceeding before us without counsel, appeals the
District Court’s granting of summary judgment in favor of Defendants on her age- and disability-
based discrimination and hostile work environment claims. 1 See Thomas v. N.Y.C. Dep’t of Educ., No.
10-CV-464 (EK) (CLP), 2021 WL 2646350 (E.D.N.Y. June 28, 2021). Thomas, a former physical
education teacher at the Brooklyn High School of the Arts (“BHSA”), filed suit against the New
York City Department of Education (“DOE”), DOE Chancellor Joel Klein, BHSA principals
Robert Finley and Margaret Lace-Berman, BHSA assistant principal John Reedy, and BHSA teacher
Daniel Paradis, asserting claims under the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and other
state and federal laws. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
I.
We review a grant of summary judgment de novo, “resolv[ing] all ambiguities and draw[ing] all
inferences against the moving party.” Garcia v. Hartford Police Dep’t, 706 F.3d 120, 126-27 (2d Cir.
2013) (per curiam). “Summary judgment is proper only when, construing the evidence in the light
1
Thomas does not challenge on appeal the 2013 decision of the District Court (Sandra L.
Townes, Judge) dismissing some of her claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. See Thomas v. N.Y.C. Dep’t of Educ., 938 F. Supp. 2d 334, 361 (E.D.N.Y. 2013), order
clarified, No. 10-CV-464 (SLT), 2017 WL 11502666 (E.D.N.Y. Aug. 2, 2017).
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most favorable to the non-movant, ‘there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir.
2011) (quoting Fed. R. Civ. P. 56(a)). Discovery rulings are reviewed for abuse of discretion. See
Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994).
II.
A. Discovery Issues
On appeal, Thomas claims that Defendants failed to respond to her discovery requests and
withheld exhibits from her New York Education Law Section 3020-a hearing, certain teacher license
and certification records, a document stating DOE rules, regulations, and policies, and the governing
union contract. But she has waived or forfeited these issues by either failing to raise them in the
District Court or, in some cases, asserting that she had received the documents that she now claims
were withheld. See Fed. R. Civ. P. 56(d) (providing that a party may obtain an extension or other
appropriate relief by submitting a declaration or affidavit showing that they cannot present facts
necessary to oppose summary judgment); Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994) (“[I]t
is a well-established general rule that an appellate court will not consider an issue raised for the first
time on appeal.”). While we may excuse waiver “when we think it necessary to remedy an obvious
injustice,” see Greene, 13 F.3d at 586, there is no basis to do so here because Thomas has not offered
any explanation for how this additional evidence could cure any of the deficiencies that the District
Court identified in her claims.
Thomas also argues that in her opposition papers to Defendants’ motion for summary
judgment, she requested additional time from the District Court to obtain and present an affidavit
from her former union representative; she maintains that the District Court erred by declining to
grant that request. Even if she had made that request as she describes, 2 the District Court would
have acted well within its discretion in declining to grant the request. For starters, the request
putatively made in Thomas’s opposition papers would have been improperly raised. Moreover, the
affidavit would have been cumulative of Thomas’s account of the same events. And Thomas had
more than ample prior opportunity to obtain the affidavit in the decade that this case was pending
prior to her summary judgment opposition.
2
Thomas claims that the request was “made on page[] 9, of [her] Response in Opposition to
Motion for Summary Judgment.” Pl.’s Br. 6. This appears to be an error, and we are unable to
locate any such request in the record before us.
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B. Age-Based Claims
Next, we conclude that the District Court properly granted summary judgment in favor of
Defendants on Thomas’s age-based claims.
The only ADEA claims that survived the motion to dismiss were discrimination and hostile
work environment claims based on Paradis’s conduct in 2006, when he was assigned to teach
physical education with Thomas and the two teachers had a series of conflicts, and Thomas’s 2007
reassignment to the Teacher Reassignment Center (“TRC,” also known as the “rubber room”)
pending an investigation of allegations that she had engaged in inappropriate conduct, which
resulted in a Section 3020-a hearing decision in Thomas’s favor in 2009, as well as a hostile work
environment claim based on Thomas’s allegation that Chancellor Klein made various comments
suggesting that older teachers should be removed. “[T]o establish age discrimination under
the ADEA, a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse
decision.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 303 (2d Cir. 2021) (internal
quotation marks omitted). To bring a hostile work environment claim under the ADEA, a plaintiff
must show that her “workplace is permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently pervasive to alter the conditions of [her] employment.” Kassner v. 2nd Ave.
Delicatessen Inc., 496 F.3d 229, 240 (2d Cir. 2007) (internal quotation marks omitted). This requires a
showing that “she was subjected to the hostility because of her membership in a protected class.”
Id. at 241 (internal quotation marks omitted).
Other than a single reference to her salary and retirement date, Thomas does not allege that
Paradis ever mentioned her age, directly or indirectly. In fact, she expressly denied that Paradis
discriminated against her on the basis of age; instead, she asserted that she believed Principal Finley
had encouraged Paradis to harass her because she was the most “senior” and highest-paid member
of his staff. But her allegations about Principal Finley’s motivations are without any factual support;
other than her allegation that she was paid more than other teachers at BHSA for reasons related to
her seniority (for which she provided no evidence), there is nothing in the record to suggest that
Finley ever acted based on Thomas’s age. She does not allege that Finley made any direct mention
of her age and she acknowledged that she did not personally know where the alleged comments
attributed to Chancellor Klein about reducing the ranks of older teachers came from. The fact that
her Section 3020-a hearing was resolved in her favor is not, in itself, proof that the hearing was
wrongfully initiated, much less proof that the wrong had something to do with her age, as opposed
to — for example — personal animosity against her on the part of either Finley or the students who
made the accusations against her.
C. Disability-Based Claims
We further conclude that the District Court properly granted summary judgment in favor of
Defendants on Thomas’s disability-based claims.
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Thomas’s surviving disability claims were limited to discriminatory discharge and failure-to-
accommodate claims based on Principal Lacey-Berman’s actions in 2009 — a period when Lacey-
Berman assigned Thomas to tasks including answering telephones, asked her to teach yoga classes,
directed her to obtain a medical clearance after Thomas declined to teach the yoga class for reasons
related to a recent hip replacement surgery, and ultimately placed Thomas on an unpaid medical
leave until she received clearance to resume teaching physical education in January 2010. To make a
prima facie case of either claim, Thomas must establish a genuine dispute of fact as to whether she
was disabled within the meaning of the ADA and whether she was qualified to perform the essential
functions of her job with a reasonable accommodation. See McMillan v. City of New York, 711 F.3d
120, 125-26 (2d Cir. 2013). Thomas concedes that she was unable to teach physical education
classes during the relevant period, so the only issue was whether a different teaching assignment was
a “reasonable accommodation.” But the undisputed evidence showed that no health class — the
other subject Thomas was qualified to teach — was available. Thomas’s failure-to-accommodate
claim, and any other disability discrimination claim premised on her 2009 unpaid leave, was thus
properly dismissed. See McBride v. BIC Consumer Prod. Mfg. Co., 583 F.3d 92, 97-98 (2d Cir. 2009)
(stating that an ADA plaintiff “must demonstrate the existence, at or around the time when
accommodation was sought, of an existing vacant position to which she could have been
reassigned”).
The summary judgment record also included evidence regarding an injury Thomas
experienced in 2011, a negative performance evaluation she received in 2012, and her decision to
retire later that year. To the extent that she sought to assert a constructive discharge claim under the
ADA based on these events — and to the extent that she should have been permitted to amend the
complaint in order to do so — that claim fails because she does not establish that she was disabled
after January 2010. See McMillan, 711 F.3d at 125. Thomas presented evidence of a torn tendon in
her shoulder as of June 2011, but she failed to put forward any evidence about whether that injury
affected her “major life activities” or whether she was viewed as having a disability. 42 U.S.C.
§ 12102(1) (defining “disability” for the purposes of the ADA). Nor did she ever allege that her
earlier hip condition was in any way related to the events of 2012. See id. § 12102(1)(B) (disability
includes a person having “a record of such an impairment”).
E. Racial Discrimination Claim
Finally, Thomas argues that the District Court erred in declining to consider a racial
discrimination claim, which was not alleged in her complaint and instead raised in her summary
judgment briefing. Thomas points out that she discussed that claim during two conferences before
the District Court. This is of no moment; Thomas failed to seek leave to amend her complaint to
assert such a claim. See Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 97 n.3 (2d Cir. 2020) (declining
to consider merits of claim premised on events not alleged in the complaint, where the plaintiff did
not seek leave to amend the complaint to include them); Greenidge v. Allstate Ins. Co., 446 F.3d 356,
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361 (2d Cir. 2006) (declining to reach merits of argument raised for first time in opposition to
summary judgment). The fact that there are stray references to “Title VII” in Thomas’s complaint
does not compel a different result because there are no factual allegations regarding racial
discrimination and no related requests for relief; moreover, the complaint — which was drafted by
an attorney and filed while Thomas was represented by counsel — was not entitled to the “special
solicitude” otherwise given to pro se parties. See Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010).
III.
We have considered all of Thomas’s remaining arguments and find them to be without
merit. For the foregoing reasons, therefore, we AFFIRM the June 28, 2021 order and June 29,
2021 judgment of the District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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