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Monday, December 10, 2012

Appellate Court Rules That ATR Status For A Tenured Teacher Does Not Violate Any "Clear and Unequivocal" Mandate

In re Diana Hrisinko, Petitioner-Appellant, v Board of Education of the City
School District of the City of New York, et al., Respondents-Respondents.
8752 110191/08

2012 N.Y. App. Div. LEXIS 8328; 2012 NY Slip Op 8431
December 6, 2012, Decided
December 6, 2012, Entered

COUNSEL: [*1] The White Rose Group, LLC, Jackson Heights (Jesse C. Rose of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for respondents.
JUDGES: Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam, Feinman, JJ.

Appeal from order, Supreme Court, New York County (Joan B. Lobis, J.), entered August 19, 2011, which denied petitioner's motion for an order holding respondents in contempt of an order, same court (Marilyn G. Diamond, J.), entered March 3, 2010 (the prior order), unanimously dismissed, without costs.

The 2011 order is not appealable as of right, as it was "made in a proceeding against a body or officer pursuant to [CPLR] article 78" (CPLR 5701[b][1]; see Matter of Storman v New York City Dept. of Educ., 95 AD3d 776, 777 [1st Dept 2012], appeal dismissed 19 NY3d 1023 [2012]). We decline to grant petitioner leave to appeal from that order in the interest of justice.

Were we to review the 2011 order, we would find that the motion court providently exercised its discretion in holding that respondents should not be held in contempt (see Storman, 95 AD3d at 777; Richards v Estate of Kaskel, 169 AD2d 111, 122 [1st Dept 1991], lv dismissed in part, denied in part [*2] 78 NY2d 1042 [1991]). Although the prior order declared that petitioner had "been a tenured teacher of Commercial Art'" since September 2, 2005, it did not reference the "Commercial Art" position, or any other specific teaching assignment, in its mandate, instead directing only that
petitioner be reinstated "to her position as a tenured teacher." "Any ambiguity in the court's mandate should be resolved in favor of the would-be contemnor" (Kaskel, 169 AD2d at 122). Accordingly, we find that, in reinstating petitioner to the position of tenured teacher and assigning her to serve as an absent teacher reserve, respondents did not violate any "clear [**2] and unequivocal" mandate (Storman, 95 AD3d at 777 [internal quotation marks omitted]; see Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d 233, 240
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Diana Hrisinko, Plaintiff-Appellant,Josefina Cruz, Andrea Shapiro, Diana Lee Friedline, Ismael Diaz, Anthony Ferraro, Elaine Jackson, Midge Maroni, David McMullen, Ram Narine, Geraldine Whittington, Gloria Chavez, Fitzroy Kington, Erica Weingast, Plaintiffs,v.New York City Department of Education, Graphic Communication Arts High School, Jerod Resnick, Dominic Cipollone, Edward Demeo, Jacqueline Kennedy Onassis High School, M.S. 219, Eric Brand, Judith Silverman, Defendants-Appellees.

No. 08-6071-cv.

United States Court of Appeals, Second Circuit.

March 11, 2010.

DIANA HRISINKO, pro se, New York, N.Y., for Appellant.
MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, New York, N.Y., for Appellees.
Present: JOSEPH M. McLAUGHLIN, Circuit Judge, KIMBA M. WOOD,* District Judge.**


UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED in part and VACATED and REMANDED in part.
Plaintiff-Appellant Diana Hrisinko, pro se, appeals from a judgment of the United States District Court for the Southern District of New York (Rakoff, J.), granting summary judgment to the Defendants-Appellees and dismissing Appellant's complaint brought pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621 et seq., and the Equal Protection Clause of the Fourteenth Amendment of the Constitution, actionable through 42 U.S.C. § 1983. We assume the parties' familiarity with the underlying facts and procedural history of the case.
We review orders granting summary judgment de novo and determine whether the district court properly concluded there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Cronin v. Aetna Life Ins. Co.,46 F.3d 196, 202-03 (2d Cir. 1995).1
As an initial matter, we note that Appellant has not challenged the dismissal of her § 1983 claim against the New York City Department of Education on the ground that her principal did not have final policymaking authority. Thus, we affirm this dismissal. See Losacco v. City of Middletown,71 F.3d 88, 92 (2d Cir. 1995).
The ADEA prohibits employers from refusing to hire, discharging, or otherwise discriminating against an employee with regard to compensation, terms, conditions, or privileges of employment because of age.2See 29 U.S.C. § 623(a)(1). Historically, this Court has applied the burden-shifting framework of McDonnell-Douglas to ADEA claims. See, e.g., D'Cunha v. Genovese/Eckerd Corp.,479 F.3d 193, 194-95 (2d Cir. 2007) (per curiam). The Supreme Court recently held that under the plain language of the ADEA, an employee bringing a disparate treatment claim must prove by a preponderance of the evidence that age was the "but-for" cause behind the employer's adverse decision, and not merely one of the motivating factors. Gross v. FBL Fin. Servs., Inc.,129 S.Ct. 2343 (2009). The Supreme Court noted that it had "not definitively decided whether the evidentiary framework of [McDonnell Douglas], utilized in Title VII cases is appropriate in the ADEA context," id. at 2349 n.2, and did not apply its burden-shifting framework in holding that the ADEA does not authorize a "mixed-motives age discrimination claim," id. at 2350-52. In a recent opinion, this Court held that, although Gross changed the latter part of the McDonnell Douglas formulation "by eliminating the mixed-motive analysis that circuit courts had brought into the ADEA from Title VII cases," this Court remained bound by the burden-shifting framework previously employed in this Circuit. See Gorzynski v. Jetblue Airways Corp., ___ F.3d ___, 2010 WL 569367, at *11 (2d Cir. Feb. 19, 2010).
If a plaintiff alleges a prima facie case of discrimination and the employer demonstrates a legitimate, non-retaliatory reason for the challenged employment decision, the plaintiff must present evidence that would be sufficient to permit a rational jury to conclude that the employer's explanation is merely a pretext for impermissible discrimination. Id. at *10. In order to establish a prima facie case of discrimination, a plaintiff must show that: (1) she was within the protected age group; (2) she was qualified for the position; (3) she experienced an adverse employment action; and (4) such action occurred under circumstances giving rise to an inference of discrimination. See Carlton v. Mystic Transp., Inc.,202 F.3d 129, 134 (2d Cir. 2000).
Appellant challenges the district court's conclusion that she failed to establish an adverse employment action under the ADEA. An adverse employment action occurs when there is a "materially adverse change" in the terms and conditions of employment. A materially adverse change must be "`more disruptive than a mere inconvenience or an alteration of job responsibilities,'" and can include "`termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices... unique to a particular situation.'" See Galabya v. New York City Bd. of Educ.,202 F.3d 636, 641 (2d Cir. 2000) (quoting Crady v. Liberty Nat'l Bank & Trust Co. of Indiana,993 F.2d 132, 136 (7th Cir. 1993)). In Galabya,an excessed teacher was transferred to a different high school and was assigned a position teaching mainstream keyboarding, despite the fact that his previous teaching experience had been in special education. Id. at 638-39. This Court found that the transfer did not constitute an adverse employment action because he could not demonstrate that the change in responsibilities was a "setback to his career." Id. at 641.
Here, although Appellant's salary and benefits would have remained the same had she continued teaching at Graphic Communications Arts High School ("GCA"), she would have remained in the position of a substitute teacher — arguably a less distinguished title, involving diminished responsibilities — indefinitely, and there is no evidence that GCA would have attempted to find her a more permanent position. Thus, it appears that the only way Appellant could obtain a more permanent position was to seek employment elsewhere. In doing so, Appellant terminated her probationary period, causing her to lose the opportunity to receive tenure at GCA. Whether Appellant remained a substitute teacher or left to obtain a more permanent position, Appellant faced changes in the terms and conditions of her employment that rise to the level of an adverse employment action. See Back v. Hastings on Hudson Union Free Sch. Dist.,365 F.3d 107, 116-17 & n.3 (2d Cir. 2004) (assuming, without holding, that the termination of a probationary period was an adverse employment action in the employment discrimination context). Because, as the district court concluded, the plaintiffs in this case collectively introduced evidence sufficient to create an inference of discrimination, 561 F. Supp. 2d at 425, Appellant has set forth aprima facie case of age discrimination.
Defendants argue that they have articulated a legitimate, business reason for their decision to excess Appellant. They state that because of staff reductions due to a reduced student population there was no longer any demand for an instructor teaching under a Cold Type Composition license. Even assuming this is sufficient evidence on summary judgment to demonstrate a legitimate business reason for excessing Appellant, construing the facts in the light most favorable to Appellant, her assertion that several younger teachers had recently been hired at the time she was excessed could demonstrate that defendants' reasons were, in fact, pretextual.3 Thus, Appellant's ADEA and equal protection claims are remanded to the district court for further proceedings.
We have considered Appellant's remaining arguments and find them to be without merit. For the reasons stated above, the judgment of the district court is AFFIRMED in part and VACATED and REMANDED in part for further proceedings in accordance with this decision.
* Kimba M. Wood, Senior Judge of the United States District Court for the Southern District of New York, sitting by designation.

** The Honorable Rosemary S. Pooler, originally a member of the panel, did not participate in consideration of this appeal. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. Internal Operating Procedure E; United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).

1. Appellant's motions to add legal precedents and to file a supplemental reply brief are GRANTED. We consider only the evidence submitted by Appellant that was before the district court.

2. The district court concluded that Appellant's equal protection claim brought pursuant to § 1983 is not preempted by the ADEA, and that her remaining § 1983 claim is properly analyzed under the same standards as a claim made pursuant to the ADEA. Shapiro v. New York City Dept. of Educ.,561 F.Supp.2d 413, 419-20, 422 n.2 (S.D.N.Y. 2008). The parties do not challenge either of these conclusions on appeal. Accordingly, our analysis of Appellant's ADEA claims, infra, also applies to Appellant's remaining § 1983 claim.

3. We note that the district court, in finding summary judgment inappropriate as to a co-plaintiff's discrimination claim, appears to have credited the allegation that "defendants have sought only to select and promote employees with newer teaching licenses (Commercial Art rather than Cold Type Composition), and that this adversely affects older employees, because only individuals over age 40 are likely to possess a Cold Type License." 561 F. Supp. 2d at 426.

Brace for lawsuit if ‘demotion’ involves less prestige, fewer opportunities

Employees who are transferred against their will often sue for discrimination—especially if the new job is less prestigious and makes the employee feel like she has to quit.
For example, in the following case, an older teacher claimed she suffered an adverse employment action when she was demoted to substitute teacher at the same time younger teachers were hired.
Recent case: Diana Hrisinko and other experienced New York City teachers with teaching certificates found out they were being moved into substitute teaching positions. The school system blamed the moves on declining student enrollment—and also said older teaching certificates were less desirable than new ones.
It said that’s why it hired the younger teachers.
Hrisinko sued, alleging age discrimination, and claimed she had no choice but to quit. She said that being a substitute teacher is less prestigious than having one’s own classroom and doesn’t offer the same opportunities for promotion and tenure.
The court agreed Hrisinko had endured an adverse employment action even if her pay and benefits were the same. The court also agreed that the system’s hiring of younger teachers might be evidence of age discrimination. The court reasoned that only older teachers held older certificates; thus they were the only teachers affected by the decision. The court sent the case to trial so a jury can decide whether discrimination occurred. (Hrisinko, et al., v. New York City Department of Education, No. 08-6071, 2nd Cir., 2010)

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