19-1058-cv
Pistello v. The Bd. of Educ. of the Canastota Cent. Sch. Dist.,

                                     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 10th day of April, two thousand twenty.

PRESENT:             AMALYA L. KEARSE,
                     JOSÉ A. CABRANES,
                     ROBERT D. SACK,
                                  Circuit Judges.


MICHELE PISTELLO,

                                Plaintiff-Appellant,

                                v.                                    19-1058-cv

THE BOARD OF EDUCATION OF THE
CANASTOTA CENTRAL SCHOOL DISTRICT,

                                Defendant-Appellee.


FOR PLAINTIFF-APPELLANT:                                                 Stephen Ciotoli, Gattuso & Ciotoli,
                                                                         PLLC, Fayetteville, NY.

FOR DEFENDANTS-APPELLEES:                                                Charles C. Spagnoli, The Law Firm of
                                                                         Frank W. Miller., East Syracuse, NY.

       Appeal from a March 21, 2019 judgment of the United States District Court for the
Northern District of New York (Lawrence E. Kahn, Judge).


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        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the March 21, 2019 judgment of the District Court be and
hereby is AFFIRMED IN PART, VACATED insofar as it dismisses the retaliation claims under
Title VII of the Civil Rights Act, Title II of the Americans with Disabilities Act, and Section 504 of
the Rehabilitation Act, and the cause REMANDED to the District Court for further proceedings
consistent with this order, including trial as appropriate.

        Plaintiff-Appellant Michele Pistello (“Pistello”) appeals from a March 21, 2019 judgment
entered in favor of her former employer, Defendant-Appellee Board of Education of the Canastota
Central School District (“School District”). The District Court granted summary judgment in favor
of the School District on Pistello’s claims of: (1) retaliation under Title VII of the Civil Rights Act of
1964 (“Title VII”), Title II of the Americans with Disabilities Act of 1990 (“ADA”), and Section 504
of the Rehabilitation Act of 1973 (“Rehabilitation Act”); and (2) retaliatory hostile work
environment under the ADA and the Rehabilitation Act. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.

        We review the District Court’s “grant of summary judgment de novo, resolving all ambiguities
and drawing all reasonable inferences” in Pistello’s favor and will affirm the judgment “only if there
is no genuine dispute as to any material fact and . . . [Pistello] is entitled to judgment as a matter of
law.” Pippins v. KPMG, LLP, 759 F.3d 235, 239 (2d Cir. 2014) (internal quotation marks and citation
omitted). “The district court’s judgment may be affirmed on any ground fairly supported by the
record.” Trikona Advisers Ltd. v. Chugh, 846 F.3d 22, 29 (2d Cir. 2017) (internal quotation marks
omitted).

        I.      Retaliation Claims Under Title VII, the ADA, and the Rehabilitation Act

         Pistello argues that the School District retaliated against her for engaging in protected
activity under Title VII, the ADA, and the Rehabilitation Act. To make out a prima facie case of
retaliation under these statutes, a plaintiff “must show that: (1) [s]he engaged in an activity protected
by the[se statutes]; (2) the employer was aware of this activity; (3) the employer took adverse
employment action against h[er]; and (4) a causal connection exists between the alleged adverse
action and the protected activity.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002)
(explaining that retaliation claims under the ADA and Section 504 of the Rehabilitation Act “are
analyzed under the same burden-shifting framework established for Title VII cases” (citation
omitted)). If a plaintiff meets this initial burden, the burden shifts to the employer “to articulate a
legitimate, non-retaliatory reason for the challenged employment decision.” Id. at 721. If the
“defendant meets this burden, the plaintiff must point to evidence that would be sufficient to permit
a rational factfinder to conclude that the employer's explanation is merely a pretext for
impermissible retaliation.” Id. (internal quotation marks omitted).



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          It is well established that, as the District Court noted, Pistello v. Bd. of Educ. of Canastota Cent.
Sch. Dist., No. 5:16-cv-0212 (LEK/ATB), 2019 WL 1300947, at *14 (N.D.N.Y. Mar. 21, 2019), an
adverse action could qualify as retaliatory only if it “follow[s] in time”, not precedes, the protected
activity. Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001) (internal quotation marks omitted).
With regard to Pistello’s Title VII-retaliation claim, only the alleged adverse actions that occurred
after the filing of Pistello’s harassment report on February 27, 2015, could qualify as retaliatory—
namely: (1) the Second Professional Conduct Meeting; (2) the Fourth Professional Conduct
Memorandum; (3) the investigation involving Pistello’s son, J.P.; (4) Pistello’s Annual Professional
Performance Review (“APPR”); and (5) Pistello’s teaching reassignment at the end of the year. See
Pistello, 2019 WL 1300947, at *14. With regard to the retaliation claim under the ADA and the
Rehabilitation Act, only the alleged adverse actions that followed her November 6, 2014 e-mail,
which accused the School District of failing to comply with the individualized education plans of
certain students with disabilities, could qualify as retaliatory—namely: (1) the five actions that
support Pistello’s Title VII claim; (2) her removal from the Regents Exam scoring process; (3) the
December 2014 e-mail from Director of Special Education Carolyn Rose; (4) the First, Second, and
Third Professional Conduct Memoranda; (5) the First Professional that Conduct Meeting; and (6)
the Counseling Memorandum. See id. at *19.

         Upon de novo review, we conclude, when viewing the record in the light most favorable to
Pistello and resolving all factual ambiguities in her favor, a reasonable juror could find that the
School District retaliated against Pistello for engaging in protected conduct. In a period of
approximately six months, Pistello received multiple disciplinary reprimands. For example, Pistello
received an e-mail from Carolyn Rose threatening Pistello with formal disciplinary action for failing
to bring to her attention a problem relating to non-compliance with special education law, even
though Pistello had raised the issue with others in the school’s management and Rose arguably was
aware of the issue as a result of an earlier communication by Bob Mengucci, one of Pistello’s
colleagues. Pistello also received a Counseling Memorandum and four professional conduct
memoranda over the course of approximately six weeks—three of them in a one-month period. In
connection with these conduct memoranda, Pistello was called to participate in four professional
conduct meetings and three of the meeting notices were later expunged after Pistello retained
counsel.

         In addition to these multiple reprimands, Rose conducted the in-class observation portion of
Pistello’s APPR and prepared a preliminary report that arguably contained several inaccuracies, as
well as an overall score that was lower than the highest possible rating. Only after Pistello rebutted
Rose’s observations and Pistello’s counsel talked to Rose about the asserted inaccuracies, were some
of the observations removed and the overall score changed to the highest rating. Ultimately, the
School District (through Rose) reassigned Pistello from the high school to teach math and reading
to special education students in middle school. And only after negotiating with Pistello’s counsel, the
School District eliminated Pistello’s math instruction responsibilities. Pistello argues that, as a result

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of these actions culminating in her reassignment, she was forced to leave the School District and
accept an offer from the City of Syracuse.

         While the District Court’s opinion was commendably detailed in examining the record and
describing the gravamen of the parties’ arguments, it erred in resolving the ambiguities in the record
in the School District’s favor rather than in Pistello’s. For example, the District Court explained that
some of the reprimands against Pistello “could be described as criticism that was necessary to allow
[Pistello] to develop, improve, and avoid discipline.” Pistello, 2019 WL 1300947, at *14
(quotationmarks, and alterations omitted) (emphasis added). In other instances, the District Court
improperly assessed the weight of the evidence by stating that Pistello’s testimony “seems dubious
when considered alongside” contrary evidence in the record, id. at *15, and that the District Court
was “not entirely convinced” by certain portions of Pistello’s sworn testimony during her
deposition, id. at *16. With regard to Pistello’s pretext argument relating to her end-of-year
reassignment, the District Court appeared to disregard the arguable significance of the fact that,
despite having taught the same course in high school for five consecutive years, Pistello was the only
teacher that was reassigned to a different academic level and subject area—namely, from teaching
English in high school to teaching math and reading in middle school. The District Court also
appeared to discredit Pistello’s testimony relating to her teaching certifications and that her
reassignment could be perceived as “negative.” Joint App’x at 571.

         In light of, among other things, the considerable number of reprimands against Pistello
occurring in a relatively short period of time after her protected conduct and that the School District
consistently changed its mind about its actions towards Pistello after she retained counsel—e.g.,
including, but not limited to, the expungement of three of the notices of professional conduct
meetings, the modifications to the APPR, and the terms of her reassignment to middle school—a
reasonable juror could construe these actions as materially adverse, as well as unfounded and
retaliatory in nature. 1 See, e.g., Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68-69 (2006)
(explaining that whether or not a particular adverse action would dissuade a reasonable worker in a
particular job from engaging in protected activity requires consideration of the totality of the


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          We agree with the District Court, however, that Pistello cannot rely on either J.P.’s bullying
investigation or her removal from the Regents Exam scoring process to support her retaliation
claims. Even assuming, for the sake of argument only, that these actions are materially adverse, the
undisputed evidence shows that the School District articulated legitimate, non-retaliatory reasons for
its actions, which Pistello in turn failed to rebut as pretextual. Indeed, in both instances—the
investigation of bullying allegations by a student against J.P., and Pistello’s removal from the scoring
process as part of a decision to only have certified teachers engaged in the scoring process—the
School District acted pursuant to policies or plans of generalized application and did not single out
Pistello in any way. See Pistello, 2019 WL 1300947, at *16–17, 22–23 (analyzing the second and third
steps of the McDonnell Douglas burden-shifting framework with respect to the J.P. investigation and
the Regents Exam Scoring Decision).

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circumstances); Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (“[I]n determining whether conduct
amounts to an adverse employment action, the alleged acts of retaliation need to be considered both
separately and in the aggregate, as even minor acts of retaliation can be sufficiently ‘substantial in
gross” as to be actionable.” (citing Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 227 (2d Cir. 2006)).

        In sum, we conclude that, the material adversity and motivation of these employment
actions are issues that cannot be resolved by summary disposition; rather, they are for the jury to
resolve. We therefore vacate the District Court’s judgment insofar as it dismisses the retaliation
claims under Title VII, the ADA, and the Rehabilitation Act.

        II.     Claims of Retaliatory Hostile Work Environment and Constructive Discharge

        Pistello also argues, albeit in passing, that she has valid claims for retaliatory hostile work
environment and for constructive discharge under the ADA and the Rehabilitation Act that cannot
be dismissed on summary judgment. See Appellant’s Br. at 30–31. To be sure, Pistello’s only
argument is that because there are disputed issues of material fact precluding the summary
disposition of Pistello’s various retaliation claims, the District Court’s dismissal of the remaining
claims also should be overturned.

        As a threshold matter, Pistello’s argument, standing alone, and made in a perfunctory
manner, is not an adequate basis to challenge the grant of summary judgment in favor of the School
District on the claims of hostile work environment and constructive discharge. See Gerstenbluth v.
Credit Suisse Secs. (USA) LLC, 728 F.3d 139, 142 n.4 (2d Cir. 2013) (applying waiver doctrine where
challenge is mentioned only “obliquely and in passing”). But even if we were to assume, for the sake
of argument only, that Pistello’s passing reference did not result in a waiver of her remaining claims,
we conclude that Pistello failed to satisfy her burden of proof with respect to these claims.

         To make out a claim of hostile work environment under the ADA, a plaintiff must show:
“(1) that the harassment was sufficiently severe or pervasive to alter the conditions of [her]
employment and create an abusive working environment, and (2) that a specific basis exists for
imputing the objectionable conduct to the employer.” Fox v. Costco Wholesale Corp., 918 F.3d 65, 74
(2d Cir. 2019) (internal quotation marks omitted) (holding, as a matter of first impression, that
hostile work environment claims under the ADA are evaluated under the same standard as similar
claims under Title VII). Under this standard, we look “to the totality of the circumstances to
determine whether a plaintiff has met this burden, including proof of the frequency of the
discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interfered with the plaintiff’s work performance.”
Id. (internal quotation marks and alterations omitted).

        The totality of the circumstances here, construed in the light most favorable to Pistello, do
not reveal a situation in the workplace that is “severe or pervasive enough to create an objectively

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hostile or abusive work environment.” Id. (internal quotation marks omitted). In other words, the
work environment was not “so severely permeated with discriminatory intimidation, ridicule, and
insult” as to support a claim for hostile work environment. Alfano v. Costello, 294 F.3d 365, 373 (2d
Cir. 2002).

         The same analysis applies to Pistello’s putative constructive-discharge claim. A case of
“constructive discharge . . . can be regarded as an aggravated case of . . . hostile work environment.”
Penn. State Police v. Suders, 542 U.S. 129, 146 (2004). Because Pistello failed to show that the School
District’s actions were severe or pervasive enough to support a claim of retaliatory hostile work
environment, she also has failed to show that her “working conditions [were] so intolerable that a
reasonable person would have felt compelled to resign.” Id. at 147; accord Chertkova v. Conn. Gen. Life
Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996).

                                           CONCLUSION

        For the foregoing reasons, we AFFIRM the March 21, 2019 judgment of the District Court,
except to the extent that we VACATE the portions of the judgment dismissing Pistello’s retaliation
claims under Title VII, the ADA, and the Rehabilitation Act, and REMAND the cause to the
District Court for further proceedings consistent with this order, including trial if and as appropriate.




                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk of Court




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