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Case 2:03-cv-04359-SLT-ARL Document 119 Filed 07/10/13 Page 1 of 66 PageID #: 4404

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------x
JOHN PETRONE,

Plaintiff,

– against –

HAMPTON BAYS UNION FREE SCHOOL
DISTRICT, et al.,

------------------------------------------------------------x
TOWNES, United States District Judge:

Defendants.

MEMORANDUM AND ORDER

03-CV-4359 (SLT) (ARL)

Plaintiff John Petrone brings this action against his former employer, the Hampton Bays

Union Free School District (“HBUFSD” or “District”), principally alleging that the District

violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973

by failing to provide him with a reasonable accommodation for, and forcing him to resign

because of, his mental illness. Defendants now move for summary judgment. For the reasons

stated below, defendants’ motion is granted with respect to all federal claims and this Court

declines to exercise pendent jurisdiction with respect to plaintiff’s state law claims.

BACKGROUND

Except as otherwise indicated, the parties agree on the following facts. Plaintiff began

working at the District’s secondary school as a student teacher in January 2001. Defendants’

Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 (“Def. 56.1

Statement”) at ¶1; Plaintiff’s Counter-statement of Material Facts Pursuant to Local Civil Rule

56.1 (“Pl. 56.1 Statement”) at ¶1. In May 2001, at or about the time plaintiff concluded his stint

as a student teacher, the District hired plaintiff as a full-time Social Studies teacher for the 2001-

2002 school year. Def. 56.1 Statement at ¶¶1-2; Pl. 56.1 Statement at ¶¶1-2.

Case 2:03-cv-04359-SLT-ARL Document 119 Filed 07/10/13 Page 2 of 66 PageID #: 4405

At the time he was hired, plaintiff was taking a medication to combat nervousness which

plaintiff frequently experienced in connection with public speaking. Def. 56.1 Statement at ¶4;

Pl. 56.1 Statement at ¶4. A psychiatrist had first prescribed that medication to plaintiff sometime

in 2000, but plaintiff was unaware that he suffered from any mental impairments. Def. 56.1

Statement at ¶¶5, 7; Pl. 56.1 Statement at ¶¶5, 7. Accordingly, plaintiff never advised any

member of the District’s hiring committee – which included defendant Dr. J. Bruce McKenna,

then the Superintendent of HBUFSD, and Samuel McAleese, then the Assistant Principal of

HBUFSD’s secondary school – that he had a medical condition that might affect his ability to

teach. Def. 56.1 Statement at ¶¶3, 8; Pl. 56.1 Statement at ¶¶3, 8.

Around the time he began working full-time, plaintiff stopped taking his medication

because the Veterans Administration (“VA”) Hospital at which his psychiatrist worked did not

have evening hours. Def. 56.1 Statement at ¶9; Pl. 56.1 Statement at ¶9. According to plaintiff,

“[i]n or about October, 2001, [he] began to feel extremely anxious and tense on a regular basis

for no discernable reason.” Affidavit of John Petrone dated Mar. 18, 2010 (“Petrone Aff.”) at

¶11. He also developed insomnia. Whereas he had been able to sleep 7 or 8 hours a night prior

to October 2001, he was sleeping only about 5 hours a night by early October, only 3 to 4 hours

in November, and 2 to 3 hours a night in December 2001. Id. at ¶¶15-18.

At first, plaintiff’s symptoms did not manifest themselves in the classroom, aside from

occasions in which his face would become flush. Def. 56.1 Statement at ¶12; Pl. 56.1 Statement

at ¶12. However, by the start of January 2002, plaintiff was experiencing “intensified feelings of

panic attacks, breathing problems, muscle tremors, and sweating.” Def. 56.1 Statement at ¶13;

Pl. 56.1 Statement at ¶13. Despite these symptoms, plaintiff managed to work during the first

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week of January 2002. Def. 56.1 Statement at ¶14; Pl. 56.1 Statement at ¶14. By the start of the

next week, however, plaintiff felt his panic attacks were becoming “extreme” and realized he

needed help. Def. 56.1 Statement at ¶15; Pl. 56.1 Statement at ¶15.

On January 9, 2002, plaintiff sought treatment from Dr. William S. Packard, a

psychiatrist, who diagnosed plaintiff with Generalized Anxiety Disorder (“GAD”) and Panic

Disorder (“PD”). Def. 56.1 Statement at ¶18; Pl. 56.1 Statement at ¶18. Dr. Packard believed

that plaintiff’s symptoms were “severe,” and prescribed medication. Def. 56.1 Statement at ¶19;

Pl. 56.1 Statement at ¶19. Nonetheless, plaintiff attempted to return to work on Thursday,

January 10, 2002. Def. 56.1 Statement at ¶20; Pl. 56.1 Statement at ¶20. As plaintiff walked

across the parking lot toward the school, he suffered a “panic attack.” Id. Plaintiff went home

and, later that day, consulted Dr. Packard. Def. 56.1 Statement at ¶¶20, 22; Pl. 56.1 Statement at

¶¶20, 22. Dr. Packard told plaintiff to take time off from work to allow the medication to

stabilize him. Def. 56.1 Statement at ¶22; Pl. 56.1 Statement at ¶22. Dr. Packard did not tell

plaintiff how long he would need to be absent, indicating that the medication worked differently

for different people. Def. 56.1 Statement at ¶23; Pl. 56.1 Statement at ¶23.

Plaintiff then called Stephen Lerner, a union representative, to ask what he should do if

he needed to be out of work for a while. Def. 56.1 Statement at ¶24; Pl. 56.1 Statement at ¶24.

Lerner advised him to contact Loretta Cahill, the District’s personnel assistant, regarding the

District’s leave policy. Id. According to plaintiff, Lerner also advised him of a provision in the

collective bargaining agreement between the District and the Hampton Bays Teachers’

Association relating to additional sick days. Deposition of John Petrone dated Dec. 23, 2004

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(the “2004 Petrone Dep.”) at 112-13.1 Under that collective bargaining agreement, plaintiff was

entitled to ten sick days per year. Def. 56.1 Statement at ¶28; Pl. 56.1 Statement at ¶28.

However, the agreement allowed a teacher to request ten additional days, which could be granted

at the District’s discretion. Def. 56.1 Statement at ¶29; Pl. 56.1 Statement at ¶29.



Plaintiff called Cahill on January 10, 2002, but did not disclose to Cahill the nature of his

illness, saying only that he was ill and might need to be out for a while. Def. 56.1 Statement at

¶25; Pl. 56.1 Statement at ¶25. Cahill instructed plaintiff to get a note from his doctor. Def. 56.1

Statement at ¶26; Pl. 56.1 Statement at ¶26. However, plaintiff did not obtain that note until

January 16, 2002, when he visited Dr. Packard for the second time.

On January 11, 2002, plaintiff wrote a letter to defendant McKenna, the District

Superintendent, requesting ten additional sick days. Def. 56.1 Statement at ¶30; Pl. 56.1

Statement at ¶30. That letter – a copy of which is attached to the Declaration of Maurizio

Savoiardo dated March 12, 2010 (the “Savoiardo Declaration”) as Exhibit J – did not reveal the

nature of plaintiff’s illness. Rather, it stated that a letter would “be forthcoming to your office

from . . . William S. Packard, M.D. detailing [the] ailment.”

On January 16, 2002, plaintiff visited Dr. Packard for a second time. According to Dr.

Packard, plaintiff said that he was feeling “much better,” that he was sleeping “okay,” and that

his appetite had improved. Deposition of Dr. William S. Packard dated May 13, 2005 (the

“Packard Dep.”) at 15.2 Plaintiff also reported that he was “[l]ess nervous overall,” although he

was still “trying to stay home and be calm.” Id. Dr. Packard observed that plaintiff “look[ed]

much less anxious,” but also observed that plaintiff exhibited some “fidgeting and restlessness.”

1A copy of the 2004 Petrone Deposition is included in Ex. D to the Declaration of

Maurizio Savoiardo dated March 12, 2010.

2The Packard Deposition is attached to the Savoiardo Declaration as Exhibit F.

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Id. The doctor increased plaintiff’s daily dose of Paxil from 20 to 30 milligrams, and increased

his dose of Xanax from three to four milligrams per day. Id. at 15-16.

On January 16, 2002, Dr. Packard penned a four-sentence note addressed “To Whom it

Concern.” Def. 56.1 Statement at ¶33; Pl. 56.1 Statement at ¶33. That note – a copy of which is

attached as Exhibit L to the Savoiardo Declaration – stated that plaintiff had been under Dr.

Packard’s care since January 9, 2002, and had been diagnosed with GAD and PD. Id.; Savoiardo

Declaration, Ex. L. The note further stated that plaintiff was being treated with Paxil and Xanax

and was “currently unable to work.” Id. While the note stated that plaintiff had another visit

scheduled for January 29, 2002, Savoiardo Declaration, Ex. L, it offered no estimate of when, if

ever, plaintiff could return to work. Def. 56.1 Statement at ¶34; Pl. 56.1 Statement at ¶34.

Nevertheless, the District granted plaintiff’s request for ten additional sick days on January 16,

2002. Def. 56.1 Statement at ¶31; Pl. 56.1 Statement at ¶31.

On January 22, 2002, McKenna called Dr. Packard to ask when plaintiff would be able to

return to work. Def. 56.1 Statement at ¶36; Pl. 56.1 Statement at ¶36. Dr. Packard was unable

to provide an “anticipated timetable for plaintiff’s return,” telling McKenna it was “too early to

tell.” Def. 56.1 Statement at ¶¶37, 39; Pl. 56.1 Statement at ¶¶37, 39. The District never

received any further information from Dr. Packard. Def. 56.1 Statement at ¶38; Pl. 56.1

Statement at ¶38.

In late January/early February 2002, McAleese – then the principal of the secondary

school – attempted to contact plaintiff on multiple occasions to inquire about his condition. Def.

56.1 Statement at ¶42; Pl. 56.1 Statement at ¶42. McAleese was not only concerned about

plaintiff, but was concerned about the impact that the “lack of continuity in the classroom” might

have on plaintiff’s students’ performance on their Regent’s examinations. Def. 56.1 Statement at

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¶43; Pl. 56.1 Statement at ¶43. Plaintiff claims that he made “several attempts” to telephone

McAleese and that his telephone records indicate that he attempted to call McAleese three times

in January 2002: on January 7, 14 and 24, 2002. Petrone Aff. at ¶¶34-35.

Although plaintiff may have attempted to telephone McAleese on three occasions, he

spoke with McAleese only once. Def. 56.1 Statement at ¶44; Pl. 56.1 Statement at ¶44. By the

time of his December 2004 deposition, plaintiff could not recall the exact date on which the

conversation took place, but believed that it was within two weeks of his January 11, 2002, letter

requesting ten additional days of sick leave. 2004 Petrone Dep. at 116. A record of calls placed

from plaintiff’s cell phone – the only phone he had at that time – indicates that plaintiff placed a

call to McAleese’s personal office telephone on January 24, 2002. Id. at 136; Petrone Aff. at

¶35.

According to plaintiff’s own account of that telephone conversation, plaintiff was unable

to give McAleese a specific date on which he would be able to return. 2004 Petrone Dep. at 119.

Rather, plaintiff believes that he gave McAleese “a general range of time,” telling him “it would

be between a few and several weeks.” Id. at 120-21. McAleese told plaintiff to notify him as

soon as he was ready to return to work, and plaintiff agreed to do so. Id. at 121.

By all accounts, McAleese and plaintiff never spoke thereafter. Although plaintiff

alleges, and plaintiff’s telephone records reflect, that he called McAleese’s office on February 5,

2002, Petrone Aff. at ¶35, 2004 Petrone Dep. at 138, plaintiff concedes that he was unable to

reach McAleese on that date. Pl. 56.1 Statement at ¶45. For his part, McAleese claims that he

telephoned plaintiff on at least two occasions, but that plaintiff never returned his calls.

Deposition of Samuel McAleese dated Jan. 28, 2005 (“McAleese Dep.”) at 102, 104-05.3

3McAleese’s deposition is attached as Ex. E to the Savoiardo Declaration.

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Plaintiff, apparently unaware of these calls, claims that McAleese made no further efforts to

contact him. Petrone Aff. at ¶38.

During his January 29, 2002, visit to Dr. Packard, plaintiff reported feeling “substantially

better.” Packard Dep. at 23. Although plaintiff told Dr. Packard that he did not feel “totally

himself” and was still experiencing some anxiety and insomnia, he was no longer having full-

blown panic attacks. Id. Nevertheless, plaintiff expressed a reluctance to return to work, telling

Dr. Packard that he was “not sure if he want[ed] to continue to be a teacher or if it . . . [was] the

school that . . . [was] the problem.” Id. at 24.

On his February 5, 2002, visit to Dr. Packard, plaintiff reported “feeling better overall.”

Packard Dep. at 25. He was still experiencing “anxiety symptoms,” but reported no trouble

sleeping or eating. Id. Plaintiff told Dr. Packard he felt strange about not working, and that

there were “some jobs here he [could] have,” but that he was not “sure what he want[ed] to do.”

Id. Plaintiff also announced that he was “going to [the] Florida Keys with friends to go fishing

for a week in two weeks.” Id.

On February 8, 2002, McKenna sent plaintiff a three-paragraph letter which, in part,

scolded plaintiff for not returning the District’s telephone calls. That letter – a copy of which is

attached to the Savoiardo Declaration as Exhibit M – began:

Your building principal, Sam McAleese, advised me that you have
not been returning his phone calls. It is critical that we know the
periods of time for which you will be unable to perform the duties
of your job as a Social Studies teacher in the school district. It is
imperative that your doctor inform us of his prognosis as to when
you will be able to return to work. As you must understand,
continuity of instruction with the same teacher is of great
importance regarding the academic success of our students.

The remaining two paragraphs of McKenna’s letter proposed two possible accommodations,

stating:

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If you are unable to return to work within a short period of time, I
would like to offer you the opportunity for a fixed term leave of
absence without pay through the end of the school year. That way,
we should be able to provide your students with continuity of
instruction for that fixed term of time. You are hereby directed to
call me regarding your interest in an agreed upon fixed term leave
of absence.

At the current time, it is our intention to ask the Board of
Education at their Regular meeting on Tuesday, February 12, 2002
to designate your absence from work as Family and Medical Leave
Act leave on an unpaid basis for the period of time commencing
February 13, 2002 for a period of up to 12 weeks. During the time
of such leave, you will be entitled to all medical benefits as if you
were on payroll.

Savoiardo Declaration, Ex. M.

Although plaintiff claims that he called McKenna on February 10, 2002, Petrone Aff. at

¶41 – the day after he receiving McKenna’s letter, id. at ¶39 – plaintiff does not represent that he

ever spoke to McKenna. Rather, plaintiff maintains that McKenna was unavailable when he

called, and that he did not call plaintiff back. Id. at ¶41. In addition, it is undisputed that

plaintiff never provided the prognosis which McKenna had demanded. Def. 56.1 Statement at

¶47; Pl. 56.1 Statement at ¶47.

According to plaintiff, he called the District shortly after the February 12, 2002, School

Board meeting to determine what had transpired. Petrone Aff. at ¶43. Plaintiff spoke to a

secretary, who informed him that he had been “placed . . . on extended medical leave.” Id.

Notwithstanding the fact that McKenna’s letter explicitly stated that McKenna would request

that the School Board grant plaintiff a leave of absence of up to 12 weeks, plaintiff apparently

believed that he had been placed on leave until the Fall. Def. 56.1 Statement at ¶52; Pl. 56.1

Statement at ¶52. Therefore, plaintiff thought it was no longer necessary to contact McKenna.

Petrone Aff. at ¶43.

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Although plaintiff was not notified of the School Board’s action until March 4, 2002,

Savoiardo Declaration, Ex. N, the School Board had actually voted to grant him up to 12 weeks’

leave under the Family and Medical Leave Act (the “FMLA”). Def. 56.1 Statement at ¶52; Pl.

56.1 Statement at ¶52. In the process of obtaining the School Board’s approval to place plaintiff

on FMLA leave, McKenna appeared in an executive session attended only by the Board

members and the assistant superintendent, during which he may have informed the Board that he

thought plaintiff was having a nervous breakdown. Deposition of J. Bruce McKenna dated May

6, 2005 (“McKenna Dep.”) at 44-45, 95.4 However, at his May 2005 deposition, McKenna did

not know whether he had actually used the term, “nervous breakdown,” in describing plaintiff’s

condition. Id. at 44.

Sometime in late February 2002, McKenna summoned Lerner and McAleese to a

meeting to discuss plaintiff’s situation. Petrone Aff. at ¶45. There is conflicting evidence

concerning exactly what transpired during that meeting. McKenna claims that Lerner suggested

the possibility of resignation, asking McKenna, “How would you like his resignation?”

McKenna Dep. at 46. McKenna recalls that he replied, “I’d love it,” and that he and Lerner

proceeded to negotiate a deal. Id. However, Lerner recalls that McKenna and McAleese

demanded plaintiff’s resignation and threatened to terminate him if he did not do so. Since

Lerner’s account is more favorable to plaintiff, the following discussion focuses primarily on

Lerner’s deposition testimony.

According to that testimony, McKenna was upset that plaintiff was not returning

McAleese’s telephone calls and anxious to hire a full-time replacement for plaintiff rather than a

temporary replacement. Deposition of Stephen Lerner dated Mar. 16, 2005 (“Lerner Dep.”) at

4The McKenna Deposition is attached to the Savoiardo Declaration as Ex. G.

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16-18.5 In addition, McKenna expressed disappointment in plaintiff’s performance, saying he

thought plaintiff would be a much better teacher than he turned out to be. Id. at 27, 30. Wanting

to work out a deal that would enable plaintiff to leave “on terms that might not be completely

unsatisfactory to him,” McKenna proposed a deal that would enable plaintiff to continue

receiving health benefits and to receive disability benefits for some portion of his leave, rather

than no pay at all. Id. at 21, 24-25. According to Lerner, McKenna “felt a personal level with

[plaintiff] and . . . didn’t want to hurt him,” but also repeatedly stated that plaintiff would be

fired if he did not resign. Id. at 29, 30, 35.

Throughout his deposition testimony, Lerner indicated that McKenna’s and McAleese’s

dissatisfaction with plaintiff related primarily to his failure to communicate with them. For

example, Lerner testified that McKenna and McAleese were unwilling to give plaintiff “a second

chance . . . [b]ecause . . . they were upset that he wasn’t calling back.” Id. at 29. Lerner also

testified that McKenna “really had his nose out of joint about the phone calls,” id. at 123, and

that the “riff [sic] between Sam McAleese and [plaintiff]” was caused by plaintiff’s failure to

provide a “target date” for his return. Id. at 101.

According to Lerner, McKenna never “clearly linked” his determination to end plaintiff’s

employment with the District to plaintiff’s medical condition. Id. at 139. However, McKenna

referred to plaintiff as “a nut” at least a “[c]ouple [of] times,” and indicated that he did not want

to deal with plaintiff’s mental health problems. Id. at 77-78, 139. When Lerner was asked if

McAleese ever “discuss[ed] that he wanted to get rid of [plaintiff] because of his medical

condition,” Lerner testified:

5The Lerner Deposition is attached to the Declaration of Michelle K. Caldera-Kopf (the

“Caldera-Kopf Declaration”) as Exs. D and D-2.

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What he was most adamant about was the fact that he was not
informed as to whether or not [plaintiff] was coming back on a
certain targeted date . . . and that [plaintiff] couldn’t even tell him
when that would be. I think [McAleese] felt it was kind of fishy.

Id. at 125.

According to plaintiff, Lerner called him the day of his meeting with McKenna and

McAleese and said that McKenna and McAleese had demanded his resignation. Petrone Aff. at

¶¶45-46. Lerner stated that if plaintiff resigned, he would receive an additional ten paid sick

days and “full disability benefits.” Id. at ¶46. If he refused to resign and was terminated, he

would not receive any benefits. Id. at ¶47. However, Lerner himself did not think that plaintiff

would be terminated before he returned to school. As Lerner explained during his deposition,

“What would have happened was that if . . . and when John came back he would be observed and

would be found wanting in certain areas and, therefore, his days in Hampton Bays would have

been numbered.” Lerner Dep. at 167.

By Lerner’s account, plaintiff did not make an immediate decision on whether to resign.

Lerner and plaintiff had several conversations, during which they discussed the possibility of

filing a grievance and the hypothetical question of “What would happen if [he] came back.”

Lerner Dep. at 47-49. Lerner advised plaintiff against filing a grievance. Def. 56.1 Statement at

¶62; Pl. 56.1 Statement at ¶62. However, plaintiff also consulted a field representative of the

New York State United Teachers union, who “reaffirmed” that, “as a nontenured person,” he

would not “have much in the way of legal recourse.” Lerner Dep. at 51.

According to Lerner’s testimony, plaintiff then negotiated with the District. Lerner

suggested that plaintiff “not accept or resign, unless he got something more than he was

originally promised.” Lerner Dep. at 137. Plaintiff followed Lerner’s suggestion and Lerner

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“went back with that at his request,” prompting the District to offer an extension of health

insurance benefits through September 2002. Id.

On March 4, 2002, after consulting with one of his professors and taking “a few days . . .

to make up his mind,” id. at 147, plaintiff resigned. Plaintiff claims that he did not want to do so,

but felt he had no choice because HBUFSD “intended on terminating [him] regardless.” Petrone

Aff. at ¶49. In light of these circumstances, plaintiff “thought it best that [he] resign and obtain

the benefits promised.” Id. at ¶48. However, it is undisputed that plaintiff never spoke directly

with McKenna, McAleese or any other District administrator concerning his resignation. Def.

56.1 Statement at ¶60; Pl. 56.1 Statement at ¶60. Accordingly, plaintiff’s belief that he was

forced to resign by defendants is based solely on his discussions with Lerner. Def. 56.1

Statement at ¶61; Def. 56.1 Statement at ¶61.

Plaintiff memorialized his understanding of the District’s offer in his resignation letter to

McKenna, which he drafted with Lerner’s assistance. Pl. 56.1 Statement at ¶¶55, 59; Def. 56.1

Statement at ¶¶55, 59. That three-paragraph letter – a copy of which is attached to the Savoiardo

Declaration as Exhibit O – begins:

After discussions with my union representative I understand that
you have agreed to issue me fifteen additional paid days (up to and
including winter break, February 5-February 25, 2002). I have
also been informed that I will be receiving disability benefits in
accordance with the district’s disability insurance policy effective
the second week of March (completion of 60 day wait period). In
addition I understand I will receive my full medical benefits until
September 01, 2002, after that date I will be entitled to an
additional 18 months of medical coverage under the COBRA law.
I also understand under the COBRA law that I must begin my own
medical contributions as of September 02, 2002.

Savoiardo Declaration, Ex. O. Plaintiff now admits that the reference to “fifteen additional paid

days” was erroneous, in that the District had offered only ten additional days. Def. 56.1

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Statement at ¶58; Pl. 56.1 Statement at ¶58. Plaintiff attributes the error to a miscommunication

between him and Lerner. Id.

The remaining two paragraphs of plaintiff’s letter made no allusions to coercion. Rather,

that letter states, in pertinent part:

As a result of my illness, and the unknown prognosis of a specific
recovery date, I must resign . . . effective September 01, 2002. It is
with great regret that I offer my resignation. It is my sincere hope
that with my current course of medical treatment, I will be able to
return to the educational field in the near future.

I thank you and the Board of Education for your understanding
during this very difficult time in my life. I sincerely regret the
inconvenience my unexpected illness has caused the district. I also
would like to express my sincere apologies . . . .

Savoiardo Declaration, Ex. O. Plaintiff now claims that these statements “did not accurately

reflect” his medical condition and his ability to teach at the time; that he “felt healthy enough to

return to work right around the time that [he] was forced to resign;” and that he drafted these

paragraphs “to comply with . . . Lerner’s indication that [his] resignation letter must appear to be

voluntary.” Petrone Aff. at ¶¶52, 59. Lerner admits that he spoke to plaintiff about how he

should draft his letter to McKenna, but denies that he ever told plaintiff that the District wanted

the letter to appear voluntary. Lerner Dep. at 58. However, for purposes of the summary

judgment motion, this Court must accept plaintiff’s version of this conversation as true.

On March 4, 2002 – the same day that the District received plaintiff’s resignation letter –

plaintiff wrote a letter to McAleese, his former principal. Def. 56.1 Statement at ¶64; Pl. 56.1

Statement at ¶ 64. That one-page letter – a copy of which is attached as Exhibit P to the

Savoiardo Declaration – begins by attempting to “clear up any misunderstandings you may have

due to the perception of lack of information I have provided you.” Savoiardo Declaration, Ex. P.

The letter then states:

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[D]uring our last phone conversation you had asked me to inform
you as soon as I knew when I could return to work. Since my
physician to this day cannot provide me with that information, I
was not able to even guess as to when I could return.

Id. After describing his ailments – his GAD and PD, as well as an intestinal fissure – plaintiff

concludes the letter by writing:

I decided along with consulting with Steve Lerner that getting
healthy should be my top priority. Despite my misgivings about
resigning from teaching in my first year, I felt that I would not be
able to give the kids my best effort in educating while
simultaneously battling these ailments. I sincerely hope you
understand my position.

Id.

In March 2002, McKenna appeared before the School Board in connection with

plaintiff’s resignation. McKenna recalled describing plaintiff’s condition by saying something to

the effect of: “he’s had a tough time, a mental breakdown or whatever, he just can’t come to

work.” McKenna Dep. at 68. In addition, McKenna told the School Board that plaintiff was a

“lousy teacher,” and that his resignation resulted in “no great instructional loss.” McKenna Dep.

at 71-72. According to McKenna, all of these comments were made during the “executive

session” – a private meeting between the superintendent and the five-member board conducted

prior to the public School Board meeting. Id. at 71. However, Lerner testified at his deposition

that McKenna also called plaintiff a “lousy teacher” during the meeting at which McKenna and

McAleese demanded plaintiff’s resignation, saying that he “should never have been hired.”

Lerner Dep. at 146.

On March 19, 2002, the School Board voted to accept plaintiff’s resignation. Def. 56.1

Statement at ¶66; Pl. 56.1 Statement at ¶66. According to a copy of the Board resolution, which

is attached as Exhibit Q to the Savoiardo Declaration, plaintiff was granted ten days of additional

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sick leave, which covered the period between February 5 and 25, 2002, and the start of his

FMLA leave was pushed back two weeks to February 26, 2002. Savoiardo Declaration, Ex. Q.

The determination as to whether to grant plaintiff disability benefits, however, rested not with

the School Board, but with the District’s disability carrier. Def. 56.1 Statement at ¶71; Pl. 56.1

Statement at ¶71. According to Lerner, “everybody” expected that he would be placed on

disability. Lerner Dep. at 59. Nonetheless, the carrier denied plaintiff’s disability claim on the

ground that he had a pre-existing condition. Def. 56.1 Statement at ¶72; Pl. 56.1 Statement at

¶72.

On July 22, 2002, plaintiff wrote a letter to the District in an attempt to rescind his

resignation. Def. 56.1 Statement at ¶73; Pl. 56.1 Statement at ¶73. That letter – a copy of which

is attached to the Savoiardo Declaration as Exhibit T – was addressed to Diane Albano, the

District Clerk who had mailed him a copy of the Board resolution accepting his resignation, and

stated only, “ I hereby rescind my resignation letter of intent that was to be effective by

09/01/2002.” Savoiardo Declaration, Ex. T. The District did not permit plaintiff to rescind his

resignation. Def. 56.1 Statement at ¶74; Pl. 56.1 Statement at ¶74.

The Charges of Discrimination

On or about August 13, 2002, plaintiff filed a complaint with the New York State

Division of Human Rights (the “SDHR”). Def. 56.1 Statement at ¶75; Pl. 56.1 Statement at

¶75. In that complaint – a copy of which is attached to the Savoiardo Declaration as Exhibit U –

plaintiff alleged that his GAD was “an impairment which is a disability within the meaning of

the New York State Human Rights Law,” and that he informed Cahill that he was “initiating

disability leave and benefits” in early January 2002. Savoiardo Declaration, Ex. U, at ¶¶1, 3.

Plaintiff further alleged that in February 2002, Lerner had informed him that McKenna and

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McAleese “wanted [him] to resign because of the type of illness [he] had.” Id. at ¶5. Plaintiff

stated that he resigned his position “effective September 1, 2002;” attempted to rescind his

resignation on July 22, 2002; but received a letter dated July 25, 2002, in which McKenna stated

that he “saw no valid reason to rescind [the] resignation.” Id. at ¶7. Based on these allegations,

plaintiff charged the District with discriminating against him on account of his disability “by

forcing [his] resignation, failing to reinstate [him] and failing to pay . . . disability benefits” and

“by refusing to give [him his] job back.” Id. at ¶¶8, 9.

The Complaint and Amended Complaint

In September 2003, plaintiff commenced this action against the District, McKenna,

McAleese, and a single “Doe” defendant, alleging, inter alia, that the District discriminated

against him on the basis of his mental illness, that McKenna and McAleese “violated [his] liberty

interest in his good name and reputation,” and that McKenna and McAleese slandered him by

falsely reporting that he had suffered a nervous breakdown and no longer wanted to teach his

students. That pleading was amended in May 2004, and defendants subsequently moved for

summary judgment on that first amended complaint. Plaintiff cross-moved to amend the

complaint.

In a Memorandum and Order dated September 9, 2009, and filed September 10, 2009,

this Court granted plaintiff’s motion to amend his pleading and deemed the summary judgment

motion withdrawn. That Memorandum and Order provided that defendants, upon reviewing the

amended complaint, could either renew their motion for summary judgment or amend their

motion papers. In addition, the Memorandum and Order directed the parties to “confer with each

other with regard to whether the [ADA Amendments Act of 2008, 122 Stat. 3553 (the

“ADAAA”),] applies retroactively,” and to advise the Court “whether supplemental briefing on

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the effect (or lack of effect) of the ADAAA is necessary.” Petrone v. Hampton Bays Union Free

Sch. Dist., No. 03-CV-4359 (SLT)(ARL), 2009 WL 2905778, at *19 (E.D.N.Y. Sept. 10, 2009).

The Second Amended Complaint

On October 5, 2009, plaintiff filed his Second Amended Complaint. That pleading

advances ten causes of action, the first five of which allege violations of section 504 of the

Rehabilitation Act (“§504”) and/or Title I of the ADA (“Title I”). The first and second causes of

action allege that defendant HBUFSD violated Title I and §504, respectively, by forcing plaintiff

to resign his position after learning that plaintiff suffered from GAD and PD. The third and

fourth causes of action allege that defendant HBUFSD violated Title I and §504, respectively, by

failing to provide plaintiff with a reasonable accommodation that would have enabled him to

continue teaching. The fifth cause of action alleges that defendant HBUFSD violated Title I by

failing to engage plaintiff “in an interactive process that would have facilitated the provision of a

reasonable accommodation.” 2d Am. Complt. at ¶ 53.

The sixth and seventh causes of action are procedural due process claims brought against

defendant McKenna pursuant to 42 U.S.C. § 1983 (“§1983”). The sixth cause of action alleges

that McKenna violated plaintiff’s “liberty interest in his good name and reputation” by telling

member of the HBUFSD School Board and unspecified “others” that plaintiff “suffered a

‘nervous breakdown’ and quit” and “was ‘a lousy teacher’ who should ‘never have been hired.’”

Id. at ¶55. The seventh cause of action alleges that these exact same actions violated plaintiff’s

“liberty interest in his reputation for professional competence.” Id. at ¶57.

The remaining three causes of action raise pendent state claims. The eighth cause of

action alleges that defendant HBUFSD violated New York State Executive Law §296(1)(a) by

forcing plaintiff to resign after learning that plaintiff suffered from GAD and PD. The ninth

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cause of action alleges that HBUFSD breached its contract with plaintiff by failing to provide

disability benefits through September 1, 2002. Finally, the tenth cause of action alleges that

defendants McKenna and HBUFSD slandered plaintiff by informing members of the School

Board that plaintiff “suffered a ‘nervous breakdown’ and quit” and “was ‘a lousy teacher’ who

should ‘never have been hired.’” Id. at ¶63.

In a letter dated October 23, 2009, defendants’ counsel informed this Court that the

parties agreed that the ADAAA does not apply retroactively. See Letter to Hon. Sandra L.

Townes from Michael A. Miranda and Matthew J. Mehnert dated Oct. 23, 2009, at 1.

Defendants’ counsel elected not to merely renew the motion for summary judgment, but

requested permission to conduct additional discovery. That request was referred to Magistrate

Judge Lindsay, who granted the request. In early 2010, following the completion of that

discovery, defendants requested, and were granted, permission to file a second motion for

summary judgment.

Defendants’ Motion for Summary Judgment

In November 2010, defendants’ filed the instant motion for summary judgment.

Defendant’s Memorandum of Law in Support of the Motion (“Defendants’ Memo”) raises seven

points, the first three of which relate to plaintiff’s federal claims and the last four of which relate

to plaintiff’s state law claims. The discussion below focuses primarily on the first two points,

the first of which raises five separate arguments and the second of which raises three separate

arguments.

In their first point, defendants seek summary judgment with respect to the first five

causes of action on the ground that plaintiff does not qualify for protection under the ADA. The

first two arguments contained in this point relate to all six of these causes of action. In the first

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argument, defendants assert that plaintiff is not disabled because he is not impaired in the major

life activities of working or sleeping and has not demonstrated any social limitations. In the

second argument, defendants assert that plaintiff cannot make out a prima facie case under the

ADA because plaintiff cannot establish that he was a qualified individual.

The third argument raised in the first point seeks to dismiss the third and fourth causes of

action on the grounds that plaintiff never sought a reasonable accommodation and that no such

accommodation was possible. The fourth argument seeks to dismiss the fifth cause of action,

asserting that defendants were not required to engage in any “interactive process” because

plaintiff never requested any accommodations. The fifth argument relates to the first and second

causes of action, arguing that plaintiff did not suffer an adverse employment action, but

voluntarily resigned his position.

Defendants’ second point advances three arguments for summary judgment with respect

to plaintiff’s sixth and seventh causes of action, both of which raise “stigma-plus” claims. In the

first of these arguments, defendants assert that summary judgment should be granted as to both

the sixth and seventh causes of action because plaintiff cannot prove that the allegedly

stigmatizing claims were made public or disseminated because the statements at issue were made

during a closed-door “executive session.” In the second argument, defendants argue for

summary judgment on the seventh cause of action, asserting that plaintiff (1) cannot establish

that he was unable to find other government employment as a result of the failure to have a

name-clearing hearing and (2) subsequently secured other government employment despite the

absence of such a hearing. In the third argument, defendants argue that both stigma-plus claims

must be dismissed because McKenna’s claims were statements of opinion, incapable of being

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proved false, and were not so derogatory as to damage plaintiff’s personal or professional

reputation.

The five other points raised in Defendants’ Memo do not require extensive discussion. In

the third point, defendants argue that McKenna is not subject to personal liability under the

ADA. The fourth point seeks summary judgment with respect to the ninth and tenth causes of

action, arguing that plaintiff did not file a notice of claim with respect to the breach of contract

and slander claims. The fifth point seeks summary judgment with respect to the ninth cause of

action, arguing that defendants’ disability insurer was solely responsible for the decision to deny

plaintiff disability benefits. In the sixth point, defendants argue for summary judgment with

respect to the tenth cause of action, asserting (1) that McKenna’s comments were merely

opinions, (2) that his statements were privileged because they were made to school officials and

related to an employee and (3) that plaintiff cannot prove falsity or malice. Finally, in the

seventh point, defendants argue that if this Court dismisses all federal claims, it should not

exercise pendant jurisdiction over the state-law claims.

Plaintiff’s Opposition

Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion for Summary

Judgment (“Plaintiff’s Opposition”) addresses most, but not all of defendants’ arguments. Since

McKenna is not named as a defendant in the first five causes of action – the only causes of

action alleging violations of the ADA – Plaintiff’s Opposition does not address the third point in

Defendants’ Memo – i.e., the argument that McKenna cannot be personally liable under the

ADA. In addition, Plaintiff’s Opposition devotes less than a page to arguing that plaintiff is

disabled. Instead, plaintiff primarily argues that HBUFSD regarded him as disabled.

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Notwithstanding the emphasis on the “regarded as disabled” argument, plaintiff’s

opposition papers include several pieces of evidence relating to plaintiff’s disability. First,

plaintiff has provided the Court with an affidavit executed on June 23, 2006, by Dr. Roy Lubit,

an expert in psychiatry (the “Lubit Aff.”).6 In that affidavit, Dr. Lubit states that plaintiff suffers

from GAD and PD, both of which are “recognized mental illnesses within the psychiatric

community.” Lubit Aff. at ¶3. The doctor notes that “trouble sleeping” is a symptom of these

conditions, and that plaintiff exhibited this symptom from October 2001 to January 2002. Id. at

¶¶4-5.

Dr. Lubit further notes that, in January 2002, plaintiff was prescribed Paxil and Xanax,

two “commonly prescribed medications” for the treatment of GAD and PD. Id. at ¶10. These

medications alleviate the symptoms of these conditions, including the insomnia, by reducing the

patient’s anxiety. Id. at ¶11. However, Paxil normally requires 3 to 8 weeks to take effect. Id.

at ¶¶11-12.

Dr. Lubit claims that, even with the medication, it is “extremely likely” that plaintiff’s

symptoms “will manifest themselves anyway.” Id. at ¶22. According to Dr. Lubit, such

symptoms “can include difficulty sleeping for periods of time from weeks to months.” Id. In

addition, because these medications are either addictive or have side-effects, it is “advisable

psychiatric practice to discontinue the medication for a period of time.” Id. at ¶¶15-17. At these

times, it is “highly likely that eventually the symptoms of anxiety” will recur, at which point “the

treating psychiatrist will then place the patient back on a medication regime.” Id. at ¶19.

Accordingly, even with proper psychiatric care, plaintiff’s symptoms can be expected to “wax

6This affidavit is attached to the Caldera-Kopf Declaration as Exhibit B.

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and wane” throughout his life, with the symptoms recurring “on multiple occasions.” Id. at

¶¶20, 23.

Plaintiff has also provided the deposition of one Gregory Metzger – a teacher in

Southampton, New York, and a personal friend of plaintiff – in support of his stigma-plus

claims. At his January 25, 2010, deposition, Metzger offered a detailed description of the hiring

process in New York school districts. Metzger testified that “usually the administrator – either

the principal and or the superintendent [–] may call some of your references.” Deposition of

Gregory Metzger (the “Metzger Dep.”) at 41.7 However, Metzger claimed that if an applicant

“came from a different district, they will call that principal or superintendent.” Id.

Metzger admitted that his understanding of the process was based on his own experiences

in the Southampton School District. Id. at 19, 40. Metzger testified that he had never been part

of the hiring process even at his own high school, other than to provide feedback regarding a

some demonstration lessons given by applicants. Id. at 42. Rather, Metzger claimed that he

learned of the hiring process “[f]rom being a teacher for nine years in a district and seeing lots of

teachers come and go.” Id. at 50.

Plaintiff has also provided this Court with his own affidavit dated March 18, 2010 – the

Petrone Aff. – in which plaintiff updates the Court on developments since September 2009.

Plaintiff states that he is now taking Lexapro and Clonazepam and has discontinued his use of

Paxil. Petrone Aff. at ¶¶68-69. Although plaintiff claims that he suffers various side-effects and

notes that Dr. Lubit states that, “during periods of [his] life[, he] may have to cease taking

medication for a period of time,” id. at ¶71, plaintiff does not state that his treating psychiatrists

have ever discontinued his medications. To the contrary, plaintiff mentions only one instance in

7The Metzger Deposition is attached as Ex. G to the Caldera-Kopf Declaration.

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which he discontinued the medications – an instance just after he moved from New York to

California in 2004 in which he had difficulty obtaining a prescription. Id. at ¶72. On that

occasion, during which plaintiff went three weeks without medication, his symptoms recurred.

Id. at ¶73. According to plaintiff, by the end of the three-week period, he was sleeping only one

hour per night. Id. at ¶74.

Notwithstanding his medical conditions, plaintiff was hired as a teacher by the Gustine,

California, school district in June 2004 and has been employed there ever since. Plaintiff admits

that he did not seek any teaching jobs in New York after he left HBUFSD. Id. at ¶64. Plaintiff

states that it is his “understanding, based on conversations with educational professors and other

teachers,” that “the educational community in New York is ‘tight knit.’” Id. Accordingly, the

“circumstances surrounding [his] forced resignation from the HBUFSD would have been

communicated to any district [that he] may have applied to in the state,” which “would have

thwarted any opportunity . . . to obtain another teaching position . . . .” Id.

Plaintiff did, however, apply for “several other teaching positions in states outside of

New York . . . .” Id. at ¶77(2).8 In connection with those applications, plaintiff provided

contact information for the HBUFSD when requested. Id. Plaintiff did not receive any offers,

but was not given a specific reason for these school districts’ decisions not to hire him. Id. In

applying for the job in Gustine, plaintiff provided recommendations from Lerner and Frances

Stefanek, his mentor and department head at HBUFSD. Id. at ¶77(1). Plaintiff listed HBUFSD

as a former employer in his resume, but “did not provide general contact information for any

other [HBUFSD] officials as personal references because [he] was concerned that Dr.

McKenna’s negative opinions . . . would be communicated to the hiring officials . . . .” Id.

8The Petrone Affidavit includes two paragraphs numbered 77. The first will be referred

to as ¶77(1), and the second, as ¶77(2).

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In May 2008, plaintiff was named Gustine High School Teacher of the Year. Id. at ¶78.

The next month, he was named the Assistant Principal of the high school. Id. at ¶79. Although

plaintiff was still working in that capacity in March 2010, he was also named the Principal of

Gustine’s Pioneer Continuation School in June 2009. Id. at ¶80. Plaintiff does not allege that

his medical conditions have ever impeded his ability to perform as a teacher, as an Assistant

Principal or in his dual role as both Assistant Principal of the high school and Principal of

another school.

I. Summary Judgment Standard

DISCUSSION

Summary judgment is appropriate only when “there is no genuine issue as to any material

fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c);

see Celotex v. Catrett, 477 U.S. 317, 322 (1986). “[G]enuineness runs to whether disputed

factual issues can reasonably be resolved in favor of either party, [while] materiality runs to

whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the

applicable substantive law.” Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d

Cir.1999) (internal quotation marks omitted).

The moving party bears the burden of showing that there is no genuine issue of fact. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the movant meets this burden, the

non-movant “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R.

Civ. P. 56(e); see Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).

The non-movant cannot avoid summary judgment “through mere speculation or conjecture” or

“by vaguely asserting the existence of some unspecified disputed material facts.” Western

World, 922 F.2d at 121 (internal quotations and citations omitted). Moreover, the disputed facts

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must be material to the issue in the case, in that they “might affect the outcome of the suit under

the governing law.” Anderson, 477 U.S. at 248.

When evaluating a motion for summary judgment, “[t]he court must view the evidence in

the light most favorable to the party against whom summary judgment is sought and must draw

all reasonable inferences in his favor.” L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d

Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

“No genuine issue exists if, on the basis of all the pleadings, affidavits and other papers on file,

and after drawing all inferences and resolving all ambiguities in favor of the non-movant, it

appears that the evidence supporting the non-movant’s case is so scant that a rational jury could

not find in its favor.” Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996). “If

the evidence [presented by the non-moving party] is merely colorable, or is not significantly

probative, summary judgment may be granted.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.

1998) (internal quotation marks omitted) (alteration in original).

II. Plaintiff’s ADA and Rehabilitation Act Claims

As noted above on page 17, ante, plaintiff’s Second Amended Complaint advances three

claims under the ADA. The first cause of action alleges that HBUFSD, by forcing plaintiff to

resign after learning that he suffered from GAD and PD, engaged in disability discrimination in

violation of 42 U.S.C. §12112(a). The third cause of action in plaintiff’s Second Amended

Complaint alleges that HBUFSD engaged in a specific type of discrimination: failing to

reasonably accommodate plaintiff’s disability in violation of 42 U.S.C. §12112(b)(5)(A).

Plaintiff’s fifth cause of action alleges that HBUFSD failed to “engage [plaintiff] in an

interactive process that would have facilitated the provision of a reasonable accommodation. . .

.”

Plaintiff’s second and fourth causes of action both allege violations of section 504 of the

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Rehabilitation Act, 29 U.S.C. § 794(a), which provides that “[n]o otherwise qualified individual

with a disability in the United States . . . shall, solely by reason of her or his disability, . . . be

subjected to discrimination under any program or activity receiving Federal financial assistance

. . . .” The second cause of action is based on the same disability discrimination that forms the

basis for the first cause of action, while the fourth cause of action is based on the reasonable-

accommodation violation that forms the basis for the third cause of action.

Claims of discrimination under the ADA and the Rehabilitation Act are analyzed under

the burden-shifting analysis established for employment discrimination cases under Title VII of

the Civil Rights Act of 1964 in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See

Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir.

2002). Under McDonnell Douglas:

[P]laintiff bears the initial burden of proving by a preponderance
of the evidence a prima facie case of discrimination. The burden
of production then shifts to defendants, who must offer through the
introduction of admissible evidence a non-discriminatory reason
for their actions that, if believed by the trier of fact, would support
a finding that unlawful discrimination was not a cause of the
disputed employment action. Plaintiff then must show that the
proffered reason was merely a pretext for discrimination, which
may be demonstrated either by the presentation of additional
evidence showing that the employer’s proffer