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Lillie Leon, 80-years Old, Files Pro Se in Federal Court Claiming Age Discrimination By the NYC Department of Education
The Second Circuit overturned the District Court on the issue of collateral estoppel for her claims of retaliation by the NYC Department of Education. from Betsy Combier, Editor: Lillie Leon's papers clearly show the ridiculous charges against her. Give her a job for pete's sake, DOE.
   Lillie Leon   
bold]Employment Discrimination Claims Not Collaterally Estopped By Finding That Teacher Was Fired For “Cause” Under New York Education Law § 3020-a
by MJPOSPIS on MAY 25, 2015

In Leon v. NYC Dept. of Education, a Summary Order dated May 22, 2015, the Second Circuit vacated the dismissal of plaintiff’s age/disability discrimination, retaliation, and accommodation claims, and held that a finding pursuant to NY Education § 3020-a that a teacher was fired for “cause” does not necessarily preclude a viable claim for (e.g.) discriminatory termination under principles of collateral estoppel.

In this case, the district court held that since the state proceedings “concluded that Plaintiff was dismissed for insubordination and neglect of her duties, not because of unlawful discrimination, Plaintiff’s claims, as they relate to her 2011 termination, are collaterally estopped from re-litigation in this Court.”

The Second Circuit disagreed.

Here’s the law:

Under New York law, the doctrine of collateral estoppel bars re-litigation of an issue when: (1) the identical issue necessarily was decided in the prior action and is decisive of the present action, and (2) the party to be precluded from re-litigating the issue had a full and fair opportunity to litigate the issue in the prior action. The bar can apply even if the tribunals or causes of action differ. Section 3020–a findings are entitled to preclusive effect.

Applying the law, the court explained why the district court’s dismissal was improper:

The District Court erroneously concluded that the Section 3020–a hearing’s “determination that there was cause for (Leon’s) termination precludes Leon from making a prima facie case of discrimination or retaliation.” There is no indication that the Section 3020–a hearing addressed, much less “actually decided,” whether the charges leading to Leon’s termination were driven, even in part, by discriminatory or retaliatory intent. The court’s error thus stems from the faulty assumption that termination for cause necessarily precludes the possibility of termination motivated by unlawful animus. “The hearing officer’s determination that the plaintiff had engaged in the charged conduct, and that these violations called for her termination, does not preclude a jury from later finding that the plaintiff was also terminated at least in part because of discriminatory reasons. The plaintiff could be successful on the discrimination or retaliation claims even if the jury were to accept that there were legitimate reasons for terminating her, too.”

Likewise the District Court erroneously concluded that the Section 3020–a hearing’s determination “that Plaintiff did not apply for an accommodation for air conditioning from (DOE’s) Medical Bureau” precludes Leon “from alleging a necessary element of her failure to accommodate claim.” While Leon is estopped from challenging the Hearing Officer’s factual finding that she failed to apply to the Medical Bureau for an air conditioning accommodation, Leon also alleges that she informed Defendants of her air conditioning-related health concerns and had filed medical documentation to that effect with the school. The overall adequacy of Leon’s accommodation requests cannot be determined based on the Amended Complaint or documents reasonably viewed as incorporated in it.

Therefore, the court vacated the dismissals of plaintiff’s discrimination, retaliation, and accommodation claims under the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the New York State State Human Rights Law, since those dismissals could not be justified under Federal Rule of Civil Procedure 12(b)(6).

16 F.Supp.3d 184 (2014)
Lillie LEON, Plaintiff,
The DEPARTMENT OF EDUCATION, a/k/a The City School District of the City of New York; Paula Cunningham, in her Individual and Official capacities; Nerida Urban, in her Individual and Official capacities; and Harvey Katz, in his Individual and Official capacities, Defendants.

No. 10-CV-2725.
United States District Court, E.D. New York.

Signed April 29, 2014.
189*189 Stewart Lee Karlin, The Law Offices of Stewart Lee Karlin P.C., New York, NY, Alexander T. Coleman, Michael J. Borrelli, Borrelli & Associates, Carle Place, NY, for Plaintiff.

Andre Leon Lindsay, Jeremy Ian Huntone, NYC Law Department, James L. Hallman, Shakera Khandakar, New York City Law Department, Office of the Corporation Counsel, New York, NY, for Defendants.


WILLIAM F. KUNTZ, II, District Judge.

This action arises out of Plaintiffs allegedly wrongful termination from Public School 117 ("P.S. 117") in 2011. At the time the Amended Complaint was filed, Plaintiff Lillie Leon was an 80-year-old tenured teacher. Plaintiff alleged that Defendants, New York City Department of Education ("DOE"), and three former and current school officials, violated a number of federal, state, and municipal laws by discriminating against her on the basis of her age and disabilities. Defendants DOE and Paula Cunningham[1] now move to dismiss Plaintiffs Amended Complaint.

Plaintiff has already litigated the cause of her 2011 termination from P.S. 117 in State Court proceedings (the "State Proceedings"). The State Proceedings concluded that Plaintiff was dismissed for insubordination and neglect of her duties, not because of unlawful discrimination. Plaintiffs claims, as they relate to her 2011 termination, are collaterally estopped from relitigation in this Court. Furthermore, Plaintiffs First Amendment and pre-2010 discrimination claims fail as matter of law. Finally, this Court declines to exercise supplemental jurisdiction over Plaintiffs municipal code and state-law tort claims in the absence of a surviving federal cause of action. Accordingly, Defendants' motion to dismiss is granted in its entirety.


The following facts are taken from the Amended Complaint (Dkt. 39 ("Compl.")). These facts are not findings of fact by the Court, but rather are assumed to be true for the purpose of deciding this motion and are construed in a light most favorable to Plaintiff, the non-moving party. See Patane v. Clark, 508 F.3d 106, 111 (2d Cir. 2007). The Court also takes judicial notice of court documents relating to Plaintiffs prior state and federal court actions in order to describe the procedural posture of this case. See Swiatkowski v. Citibank, 745 F.Supp.2d 150, 156 (E.D.N.Y.2010) (Bianco, J.).

A. Plaintiff's Pre-2010 Allegations

At the time the Amended Complaint ("Compl.") was filed, Plaintiff was 80 years old and, at all relevant times, she was employed by the DOE at P.S. 117. (Compl. ¶ 6). Plaintiff had been employed by the DOE since 1978. (Id. at 1116). Plaintiff suffered from severe arthritis in her knees that limited her ability to walk, as well as allergies that limited her ability to breathe in cold climates. (Id. at ¶¶ 87-88). Plaintiff provided Defendants medical documentation in May and June 2008 concerning her disabilities. (Id. at ¶¶ 38, 40).

Plaintiff previously sued the New York City Board of Education in June 2003, alleging that the DOE violated the Age Discrimination in Employment Act ("ADEA") by treating younger employees more favorably. (Id. at ¶ 21). That suit settled in Plaintiffs favor in July 2006. (Id. at ¶ 23). Plaintiff now alleges that Defendants began discriminating and retaliating against her because she filed the federal lawsuit. (Id. at ¶ 22).

According to Plaintiff, Defendants began a "campaign to force Plaintiff to retire" during the pendency of the lawsuit and beyond the settlement. (Dkt. 47, (Plaintiffs Memorandum in Opposition to the Motion to Dismiss ("Pl.'s Br.")) at 7).2 This campaign included inquires as to when Plaintiff would retire in 2005 and 2008, (Compl. ¶¶ 27, 41); requests that Plaintiff sign a statement indicating her intended date of retirement, (id. at ¶ 28); the use of profanities and false accusations against Plaintiff, (id. at ¶ 31); and "a continuous pattern of severe harassment, hostile working environment, retaliation, humiliation, and intimidation." (Id. at ¶ 29).

Additionally, Plaintiff alleges that she was denied her first choice teaching assignments for the 2008-09 and 2010-11 school years, even though her seniority should have given her priority. (Id. at ¶¶ 34, 47, 66-67). Furthermore, Plaintiff alleges that unfounded disciplinary letters were placed in bad faith into her personnel file in April and May 2008, in an effort to have Plaintiff terminated. (Compl. ¶ 34). Plaintiff claims that in response to her complaints about the disciplinary letters, she was given an unsatisfactory "U"—for the first time in career—in her 2007-08 Annual Performance Evaluation. (Id. at ¶¶ 35-37). Plaintiff alleges that she was required to write out long lesson plans in September 2008, a task not required of tenured or younger teachers. (Id. at ¶ 43).

Plaintiff alleges that in October 2008, Defendants placed two "known severely troublesome students" into her class as part of the alleged campaign to force her into retirement. (Id. at ¶ 46). Plaintiff alleges that later in the 2008-09 school year, she was not provided proper testing materials, (id. at ¶ 49), a letter of dedication to her students was omitted from a 191*191 Moving-Up Ceremony program, and her class was excluded from a field trip to Barnes & Noble. (Id. at ¶ 51). On March 17, 2009, Plaintiff filed a charge of discrimination against the school with the Equal Employment Opportunity Commission ("EEOC"). (Id. at ¶ 50). Plaintiff also alleges that similar conduct occurred during the 2009-10 school year whereby her class was excluded from a playground equipment ribbon ceremony and had a field trip canceled. (Id. at ¶¶ 52, 55).

B. The 2010-11 School Year

Plaintiff brought her initial complaint in this action on June 15, 2010, alleging the events discussed above. (Dkt. 1). In 2011, Plaintiff filed the Amended Complaint alleging that she was subject to further discrimination by the Defendants during the 2010-11 school year. The Amended Complaint alleged that "Defendants intensified their retaliation and discrimination of Plaintiff in order to force her to retire or to terminate her" during the 2010-11 school year. (Pl.'s Br. at 3); (Compl. ¶ 56). Plaintiffs allegations of discrimination during that school year began with her assignment to teach twenty-five Kindergarten students in a classroom without an in-class bathroom ("Room 113"). (Compl. ¶ 57). This required Plaintiff to "bathroom"(3) her students. (Id. at ¶¶ 57, 59). Plaintiff also alleged that Room 113 lacked age-appropriate furniture. (Id. at ¶ 63). In Fall 2010, Plaintiff contacted the parents of her students and raised accusations that the classroom was filthy, lacked an attached bathroom, and lacked age-appropriate furniture. (Id. at ¶ 64).

In response to Plaintiffs conduct, including her refusal to accept any of the alternative teaching assignments offered in lieu of teaching Kindergarten in Room 113, Defendants brought New York Educ. Law § 3020-a charges against Plaintiff citing eight "specifications," or charges of misconduct, arising out of the events of the 2010-11 school year. (Dkt. 48-1 (Decl. of Shakera Khandakar Exhibit A, Opinion and Award in New York City Dep't of Ed. v. Leon, SED File No. 17, 318 (July 15, 2011)) ("Ex. A") at 3-4).(4) Plaintiff alleges that these proceedings were initiated by Defendants as part of their continued attempts to "retaliate, discriminate, harass and intimidate Plaintiff." (Pl.'s Br. at 4 (citing Compl., ¶ 76)).

C. The 3020-a Proceeding

On July 15, 2011 the Hearing Officer in the 3020-a proceeding issued the final Opinion and Award. (Ex. A at 1). After three days of evidentiary hearings, the record was closed, and all events up to May 15, 2011 were considered. (Id. at 2). According to the Opinion, "both parties were represented by counsel and had a full and fair opportunity to present evidence and argument, to engage in the examination and cross-examination of witnesses, and otherwise to support their respective positions." (Id. at 2).

The 3020-a proceedings charged Plaintiff with "insubordination, neglect of duty, and conduct unbecoming her position[.]"

192*192 (Id. at 3). The eight "specifications" against Plaintiff included:

"Specification 3: Beginning on or about September 13-15, 2010, [Plaintiff] refused to `bathroom' the students in her assigned Kindergarten class 113, as directed.
Specification 4: On or about September 12, 2010, Plaintiff contacted parents of kindergarten class 113, without authorization from the Principal, regarding Plaintiffs claims against the school and told them in sum and substance that classroom 113 was:
1. Filthy
2. Without a bathroom
3. Unsuitable for children
4. With furniture that was not age appropriate.
Specification 5: Beginning on or about September 13, 2010, Plaintiff informed parents around dismissal time, in sum and substance, that:
1. I will not take your children to the bathroom.
2. I am not a babysitter.
Specification 6: Beginning on or about September 20, 2010, Plaintiff refused the Principal's directive that Plaintiff teach newly assigned kindergarten class 133.
Specification 7: On or about November 22, 2010, Plaintiff refused the Principal's directive that Plaintiff conduct a tutoring teaching assignment called "Circular 6" in room 358.
Specification 8: Plaintiff failed to report to her designated assignment on or about September 20, 2010 through March 11, 2011, as directed."
(Ex. A at 3-4).

The Hearing Officer ultimately concluded that there was just cause for Plaintiffs termination as she was insubordinate, neglected her duties, was unfit to perform her obligations, violated by-laws, rules, or regulations of the Chancellor, engaged in conduct unbecoming a teacher, and was incompetent and inefficient in her service. (Ex. A at 4).

Among the relevant issues decided by the Hearing Officer were:

• Plaintiff did not request an accommodation for air conditioning for the 2010-11 school year. Plaintiff was informed that she would need to do more than submit a letter to the principal and that an accommodation request needed to be made to the Medical Bureau. (Id. at 10).
Specification 3
• Plaintiff ignored numerous written and verbal directives that she was to bathroom her students. (Id. at 26). Plaintiff was in a classroom without a bathroom because the administration had attempted to defer to her health concerns about air conditioners. (Id. at 23). Plaintiff was physically able to monitor bathrooming and was aware that this was part of the responsibilities of a kindergarten teacher. (Id. at 24-25).
Specification 4
• The manner and substance of the messages left by Plaintiff to her students' parents were "alarming" and inappropriate because she did not advise the administration of her issues before reaching out to the parents. (Id. at 26-27). Those actions were "unprofessional and unbecoming her position and the [DOE] had just cause for discipline." (Id. at 27).
Specification 6
193*193 • Principal Cunningham moved Plaintiff to air-conditioned Room 133 because of Plaintiffs refusal to bathroom students and her contacting of the students' parents. (Id. at 28-29). Plaintiff was to blame for being put in Room 133 and nonetheless refused to provide instruction in Room 133, ignored directives to report to that classroom, and engaged in continuing insubordination. (Id. at 29). There were no safety issues with the classroom justifying Plaintiffs refusal to teach. (Id. at 29). "Although [Plaintiff] testified that air conditioning made her hoarse and that she had previously submitted a doctor's note to the prior principal, she did not apply for an accommodation for air conditioning from the Medical Bureau. Although the Principal initially deferred to Plaintiffs preference for the old wing, she was not prohibited from assigning Plaintiff to the new wing. In an attempt to appease her, Principal Cunningham offer to turn off the air conditioning in the room. Even so, Plaintiff still refused to teach in Room 133[.]" (Id. at 29).
Specification 7
• When Plaintiff was assigned and then refused a third teaching assignment in Room 358 during the 2010-11 school, "the totality of the evidence support[ed] the finding that Plaintiff had no reasonable basis for her belief that assignment to Room 358 posed a threat to her health or safety." (Id. at 30). Plaintiff was given three warnings to report to her assignment in Room 358, and her failure to adhere to those directives constituted insubordination and warranted discipline. (Id. at 32-33).
Specification 8
• After being deemed fit for duty, Plaintiff was given the option to teach a tutoring course ("Circular 6") in the cafeteria. (Id. at 33). Plaintiff refused to teach there for "safety" reasons, even though there was no reasonable imminent harm. (Id. at 34). Plaintiff was found guilty of failing to report to any of her designated assignments between September 20, 2010 and May 11, 2011. (Id. at 35).
• Overall, Plaintiff attempted to justify her numerous insubordinate acts by claiming that there were health and safety reasons excusing her non compliance. However, those Plaintiffs excuses were "unsubstantiated and did not justify her refusal to bathroom her students, teach in Room 133 with or without air conditioning, Room 358[and the cafeteria because the assignments posed a threat of physical harm to her health or safety is not supported by the evidence." (Id. at 34).
• "From the time she did not get her first choice of Pre-K, the evidence established that Ms. Leon embarked on a collision course with the Principal and engaged in outright defiance and refused, not just once, but disobeyed four teaching assignments. The terms of the assignments were clearly communicated to her verbally and, in writing, and she was repeatedly warned that her failure to perform her duties was insubordinate and 194*194 could lead to discipline. Her obstinate behavior remained unchanged despite the warnings and numerous opportunities to correct her behavior. With each and every assignment, [Plaintiff] showed no understanding that the Principal, and not she, was in charge with respect to teaching assignments, student welfare and building safety. However, when [Plaintiff] voiced concerns, the Principal attempted to give her options to allay her fears which she consistently rebuffed. At the end of the day, Ms. Leon was unable to identify a single classroom in a 53 room building in which she would be willing to teach other than in the Pre-K classroom." (Id. at 35).
The Hearing Officer held that termination was the appropriate penalty under the facts and circumstances, and that the DOE had established that Plaintiff was unfit to continue in her position. (Id. at 36). Plaintiffs repeated neglect of her duties, persistent insubordination, and consecutive refusals to perform her assigned teaching positions became, in effect, a refusal to work for six months. (Id. at 36).

Following her dismissal, Plaintiff brought a Notice of Verified Petition in New York Supreme Court, New York County, initiating an Article 75 proceeding challenging the holdings of the 3020-a proceedings. (Dkt. 48-1 (Decl. of Shakera Khandakar Exhibit B, Lillie Leon's Notice of Verified Petition (Aug. 1, 2011)) ("Ex. B")). Plaintiff (1) argued that the 3020-a decision was unenforceable because it was issued more than thirty days beyond the last date of the hearing (as directed by statute), (2) disagreed with the Hearing Officer's conclusions, and (3) asserted that the Hearing Officer was biased against her because of her age. (Dkt. 48-1 (Decl. of Shakera Khandakar Exhibit C, Leon v. Dep't of Ed. of the City of New York, No. 108822/11 (Sup.Ct.N.Y.Cnty. Apr. 12, 2012) (Huff, J.)) ("Ex. C") at 2-3).

DOE moved to dismiss the petition. (Id. at 3). After reviewing the Hearing Officer's findings and determining that the "penalty was not shocking to one's sense of fairness," the Article 75 court granted the motion holding that Petitioner had "failed to demonstrate that the 3020-a proceeding should be overturned." (Id. at 3).

D. The Motion to Dismiss the Amended Complaint

Less than two weeks after the adverse, final decision in the Article 75 proceedings, Plaintiff filed her Amended Complaint in this case adding her 2010-11 allegations. (Dkt. 39). Plaintiff alleged that Defendants' conduct violated the ADEA, the Americans with Disabilities ("Act"), New York Executive Law § 206 ("NYSHRL"), the New York City Administrative Code, the First Amendment of the Constitution, and two state-law torts. Defendants DOE and Paul Cunningham have filed this motion to dismiss, arguing that Plaintiffs claims are either precluded by collateral estoppel and res judicata or insufficiently pled.


A. Plaintiff's 2010-11 Claims Are Barred by Collateral Estoppel

Defendants argue that Plaintiffs claims are barred by collateral estoppel and res judicata. According to Defendants, the issue of why Plaintiff was terminated from P.S. 117 has already been determined in the 3020-a and Article 75 proceedings. This Court agrees. Because the issue at the heart of Plaintiffs 2010-11 claims— whether the cause of her termination was discrimination—was already decided during prior state court proceedings, Plaintiff 195*195 is estopped from now bringing those claims in this Court.

1. Collateral Estoppel Standard

"A federal court must apply the collateral estoppel rules of the state that rendered a prior judgment on the same issues currently before the court." LaFleur v. Whitman, 300 F.3d 256, 271 (2d Cir.2002). Collateral estoppel in New York "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party... whether or not the tribunals or causes of action are the same." Ryan v. N.Y. Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 (1984); El-Shabazz v. State of New York Comm. on Character & Fitness, 428 Fed.Appx. 95, 96-97 (2d Cir. 2011) (collateral estoppel applies in the subsequent action "irrespective of whether the tribunals or causes of action are the same"). Under New York law, collateral estoppel applies when (1) the issue in question was actually and necessarily decided in a prior proceeding; (2) is decisive in the current proceeding; and (3) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding. See Evans v. Ottimo, 469 F.3d 278, 281 (2d Cir.2006). The party asserting preclusion carries the burden of establishing the first two elements, whereas the party opposing preclusion must demonstrate that there was not a full and fair opportunity to litigate. Id. at 281-82.

"Federal courts must give state-court judgments the same preclusive effect as they would receive in courts of the same state." Burkybile v. Bd. of Ed. of the Hastings-on-Hudson Union Sch. Dist., 411 F.3d 306, 310 (2d Cir.2005). Findings reached through section 3020-a hearings, which are quasi-judicial administrative actions, are entitled to preclusive effect. Id. at 308, 311-12; Smith v. New York City Dep't of Educ., 808 F.Supp.2d 569, 578 (S.D.N.Y.2011) (Buchwald, J.). Additionally, notwithstanding the limited judicial review by an Article 75 court of a 3020-a proceedings, "a state court has the authority to consider claims alleging a violation of due process with respect to the conduct of the [3020-a] proceeding in an Article 75 proceeding." Saunders v. New York City Dep't of Ed., No. 07-CV-2725, 2010 WL 2816321, at *18 (E.D.N.Y. July 15, 2010) (Feuerstein, J.) (citing Giardina v. Nassau County, No. 08-CV-2007, 2010 WL 1850793, at *4-5 (E.D.N.Y. May 7, 2010) (Bianco, J.) (holding that the state court had the ability to consider the plaintiffs' claims regarding a lack of due process in the arbitration and could examine whether the procedures used in the arbitration itself complied with due process)). There is no question that the 3020-a and Article 75 proceedings here are afforded preclusive effect.

2. ADEA Standard

Plaintiffs first cause of action against Defendants alleges that she was subjected to an adverse employment action and disparate treatment, a hostile work environment, and retaliation because of her age in violation of the ADEA. (Compl. at ¶¶ 81-83). "To establish a prima facie case of age discrimination under the ADEA, a plaintiff must show that: (1) he is a member of a protected class; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination." Smith, 808 F.Supp.2d at 579; James v. N.Y. Racing Ass'n, 233 F.3d 149, 153-54 (2d Cir. 2000). If the plaintiff can establish this prima facie case, the burden of proof is then shifted to the defendants to offer 196*196 legitimate, nondiscriminatory justifications for their actions. Smith, 808 F.Supp.2d at 579 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). After the defendant articulates a legitimate reason for the action, the plaintiff must demonstrate that the proffered reason is pretextual by demonstrating that the defendants' reasons are false and that the adverse action was motivated by unlawful discrimination. Smith, 808 F.Supp.2d at 579 (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir.1998)). In sum, "a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the `but-for' cause of the challenged adverse employment action." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009); DiGirolamo v. MetLife Grp., Inc., 494 Fed. Appx. 120, 122 (2d Cir.2012).

3. ADA Standard

Plaintiff also alleges that she was discriminated against because of her arthritis and allergies, and that Defendants failed to reasonably accommodate her disabilities. (Compl. ¶¶ 84-103). To state a claim for ADA discrimination, the plaintiff must demonstrate that: "(1) plaintiff's employer is subject to the ADA; (2) plaintiff was disabled within the meaning of the ADA; (3) plaintiff was otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation; and (4) plaintiff suffered an adverse employment action because of her disability." Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir.2004) (citing Cameron v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir.2003)).

In the same vein, to state a claim for ADA failure to accommodate, the plaintiff must demonstrate that: "(1) she is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of her disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations." McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009). "The same burden-shifting framework that applies to Plaintiff's age discrimination claims under the ADEA applies to ... her disability discrimination claims under the ADA." Smith, 808 F.Supp.2d at 580 (citing McBride, 583 F.3d at 96).

4. Plaintiffs Discrimination and Retaliation Claims Are Precluded

Defendants assert that Plaintiffs ADA and ADEA claims must be dismissed because "a Hearing Officer [has] found Plaintiff guilty of misconduct, the parties have already actually litigated and decided that any adverse employment action was justified, and therefore, could not have been a pretext for unlawful discrimination." (Def.'s Br. at 4.)

In nearly identical circumstances, the court in Smith held that after a 3020-a Hearing Officer found that the plaintiff was guilty of misconduct, time and attendance abuse, insubordination, and neglect of duty, the issue of why the plaintiff was terminated was precluded from further litigation. Smith, 808 F.Supp.2d at 579-80. The court determined that the ultimate issue was the same both in the case before it and the 3020-a proceeding. Id. "[I]n both contexts, it becomes necessary to resolve 197*197 whether the plaintiff was subjected to adverse employment actions because of his own conduct or because of other factors, such as impermissible discrimination by defendants." Id. at 580. After the 3020-a Hearing Officer found the plaintiff guilty of misconduct, "the parties [had] actually litigated and the hearing officers actually decided that any adverse employment action was justified and not based on impermissible discrimination. Thus, because the hearing officers concluded that there existed just cause for the adverse employment actions, those officers actually decided that plaintiff cannot make out a prima facie case of discrimination nor can he put forth evidence of pretext." Id. The court held that the "doctrine of collateral estoppel in fact bars the federal discrimination claims raised in that action." Id. at 579.

Here, as in Smith, "it is well-settled that the (hearing), which was conducted in accordance with section 3020-a of the Education Law, may be afforded preclusive effect." Smith, 808 F.Supp.2d at 580 (citing Burkybile, 411 F.3d at 308). Accordingly, Plaintiff's ADA and ADEA discrimination and retaliation claims, as far as they relate to the 2010-11 school year, are collaterally estopped.

The question before the Court is whether Plaintiff was terminated because of improper conduct or Defendants' discrimination or retaliation against her. But during the 3020-a proceedings, the parties actually litigated this very issue, (Ex. A at 2), and the Hearing Officer actually decided that Plaintiffs termination was caused by Plaintiffs insubordinate conduct, not by impermissible discrimination or retaliation. (Id. at 36). The Hearing Officer's determination that there was cause for Plaintiffs termination precludes Plaintiff from making a prima facie case of discrimination or retaliation.

Plaintiff had a full and fair opportunity to litigate the issue of her termination. Plaintiff was given a three-day evidentiary hearing in which she was represented by counsel and was given every opportunity to present evidence, argue her view of the facts, and cross-examine witnesses. (Ex. A at 2). Further, the cause of Plaintiffs termination was necessary to the final judgment in the 3020-a proceeding. The crucial questions in the proceeding were whether the DOE's alleged specifications were true and whether they supported terminating a tenured teacher. The Hearing Officer unequivocally and validly held that at least five of the specifications were proven by the DOE and that the insubordinate acts justified the termination of Plaintiff. (See Ex. A). These findings were given a second consideration on appeal in the Article 75 court, which affirmed the Hearing Officer. Saunders, 2010 WL 2816321, at *18 ("By denying the petition pursuant to Article 75, the state court actually and necessarily decided both that (Hearing Officer's) decision was supported by adequate evidence and that the decision was in accord with due process.").

Plaintiff argues that the holding in anothe

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