3 F.Supp.2d 280 (1998)
Lucille GRUBERG, Plaintiff,
v.
The BOARD OF EDUCATION OF THE SEWANHAKA CENTRAL HIGH SCHOOL DISTRICT,
Defendant.
United States District Court, E.D. New York
April 27, 1998.
Rosen, Leff, Attorneys, Hempstead, NY, for Plaintiff by
Robert M. Rosen, Delvis Melendez, of counsel.
Jaspan, Schlesinger, Silverman & Hoffman, L.L.P.,
Garden City, NY, for Defendant by Stanley A. Camhi, Carrie Preble, of counsel.
MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
This matter arises from the claims of the plaintiff,
Lucille Gruberg ("Gruberg" or "the plaintiff"), under the
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et
seq. ("ADEA"), and New York State Executive Law §§ 296 and 297.
Presently before the Court is the defendant's motion for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
I. BACKGROUND
At the time of the filing of the complaint, Gruberg was
a seventy-three year old woman who had been employed by the defendant, the
Board of Education of the Sewanhaka Central High School District (the
"School District" or "the defendant"), as an English
teacher in the Elmont Memorial High School ("High School") for more
than twenty years, from September 1972 until June 1994. The plaintiff
accurately characterizes her annual evaluations from the time she began her
career through 1990 as "more than satisfactory" and often
"exemplary." For example, her annual evaluation for the 1988-1989
school year included the following high praise:
Mrs. Lucille Gruberg is an experienced and
knowledgeable teacher of English.... Mrs. Gruberg planned lessons that would
not only cover the many facets of the English courses of study but would also
stretch students' minds. For her English 12 and 12NR students, especially, Mrs.
Gruberg continually searched for stimulating materials that would force these
students to think about what they wanted out of life and how to respond to the
challenges that life offered.Mrs. Gruberg is a caring teacher who tries to help
students to reach their potential. She sets high standards for her classes
and is completely in control of her students and her lesson. She respects her
students, and they respect her.Mrs. Gruberg is always willing to try out new
ideas and approaches to encourage her students to write with confidence and to
write better.......Mrs. Gruberg is a responsible member of the English
Department, performing her various duties effectively and conscientiously.This
has been an excellent, productive year for Mrs. Gruberg.
(Plaintiff's Ex. B. Memorandum of Law in Opposition to
Defendant's Motion for Summary Judgment) (emphasis added).
In 1989, the year after she received such glowing
accolades, there was a change in administration at the school. Diane Scricca
became the Principal of Elmont Memorial High School and Robert Walsh became the
Chair of the English Department. That same year, the plaintiff's annual
evaluations suddenly plummeted. While the previous year's evaluations commended
Gruberg's classroom management skills, Walsh's October 1990 evaluation
criticized the teacher, suggesting that she needed to me more of "a strong
classroom leader, firmly in control of the entire class at all times." (Defendant's
Ex. E to Memorandum of Law in Support of Summary Judgment Motion). Walsh's
evaluation of the plaintiff stated that "[s]everal times when questioning
or helping a child, you so focused on that child that the remainder of the
class was ignored and they became restless and went off task." He
criticized her for such things as momentarily turning her back on the class to
provide a tissue for a student, and for taking her eyes off the class when
peering into the textbook for information, both of which purportedly lead to
"lack of eye contact [which] causes problems." Despite these
criticisms, Walsh concluded that Gruberg's lesson was "satisfactory"
with the "aim of the lesson being accomplished." The plaintiff
alleges that following her evaluation conference with Walsh, he told her that
she "really ought to retire" and that "the job is getting to be
too much for you and it will only get worse."
According to the plaintiff, things, indeed, got much
worse for her. The teacher states that "at that point, Mr. Walsh and Ms.
Scricca began to make my life impossible in order to force my retirement. I
believe, without any doubt whatsoever, that they wanted me to retire because of
my age." (Gruberg Aff., ¶ 11). Her evaluations went from glowing in 1989,
the year before she began working for Scricca and Walsh, to "mixed,"
and finally, to "unsatisfactory." By the plaintiff's account, once
Scricca and Walsh came into power, she could not obtain a satisfactory
evaluation no matter how hard she tried or whatever she did. "My every
move was watched, and every incident the administration thought was improper
was documented, no matter how trivial. For example, I was reprimanded for not
standing by the door before the bell rang, for allowing my students two minutes
at the start of class to settle down, for letting students speak without
raising their hands, and for not utilizing the chalk board correctly."
(Gruberg Aff., ¶ 13). Her annual performance evaluation for the 1990-1991
school year, while overall satisfactory, noted a "weakness" in her
classroom management. The plaintiff alleges that during the following school
year, on February 28, 1992, Walsh approached her and said, "Why don't you
retire while you still can with dignity?" At the end of the 1991-1992
school year, her annual evaluation was, for the first time in her career, rated
"unsatisfactory." (Defendant's Exhibit L).
In June of 1992, as a consequence of the poor
evaluation, Gruberg was placed under the Board of Education's Administration
Regulation 4117.1 ["the Regulation"] for the next school year. A
teacher placed on the Regulation is, in essence, on probation: a
"remediation" plan is developed to address and improve those areas in
which the teacher is deemed deficient, she is closely monitored by her
supervisor, and more than the usual number of classroom observations are
conducted to monitor her progress. The defendant explains that "if the
remediation plan fails and the teacher's performance remains unsatisfactory, a
decision has to be made as to what other action should be taken." If the
teacher is not performing at a satisfactory level, one of the options is for
the District to "charge" the teacher with incompetency under § 3020a
of the New York Education Law, which provides that in order for a tenured
teacher to be discharged for "incompetence," the teacher is entitled
to notice of specific charges and hearing before a hearing officer. At such a
hearing, the burden of proof is on the District to prove the charges, and the
teacher is entitled to representation by counsel, to cross-examine witnesses,
and to present witnesses in her own behalf. The hearing officer determines
whether theteacher is "guilty" of the charges and what, if any,
penalty should be imposed.
While still in the defendant's employ, the plaintiff
filed age discrimination charges with the New York State Division of Human
Rights. On August 4, 1992, following a hearing at which the defendant was
represented by counsel and the plaintiff proceeded pro se, the State Division
rendered a probable cause determination stating that the purported legitimate
business reasons provided by the School District for her treatment were
pre-textual, and that she was discriminated against based on her age.
When the plaintiff returned to work at the beginning of
the 1992-1993 school year, she continued to teach under the remediation plan.
However, in the plaintiff's words, from then on, Walsh and Scricca constantly
"demoralized, belittled, intimidated and [eventually] coerced me into
resigning. They did this by singling me out and subjecting me to a standard of
review unequal [to] that of any other teacher similarly situated in the
District. The[y] engaged in a deliberate and punitive course of conduct
designed to force me to resign because of my age.... I worked under constant
unwarranted criticism and the threats of an incompetency hearing. I was plagued
with numerous requests to retire." (Gruberg Aff., ¶ 31). The plaintiff
contends, the defendants "created working conditions for me that were so
intolerable that I was forced to tender my resignation in April 1994, effective
in June 1994." (Gruberg Aff., ¶ 29).
According to the plaintiff, the defendant's treatment
of her was part of a broader discriminatory pattern and practice of ousting
older teachers by placing them on the District's Administrative Regulation
4117.1, for purposes of eventually replacing them with younger teachers who are
paid less. The plaintiff has named ten other teachers in the district who also
were subjected to the Regulation, four of whom also resigned, allegedly as a
consequence of being placed on the Regulation and being subjected to treatment
similar to that described by Gruberg.
II. DISCUSSION
A. SUMMARY JUDGMENT: THE STANDARD
A district court may grant summary judgment only if the
evidence, viewed in the light most favorable to the party opposing the motion,
presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d
Cir.1996), and the movant is entitled to judgment as a matter of law. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must, however, resolve all
ambiguities and draw all reasonable inferences in the light most favorable to
the party opposing the motion.See Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d
Cir.1995). A genuine issue of material fact exists if "a reasonable jury
could return a verdict for the nonmoving party." Vann v. City of New
York, 72 F.3d
1040 (2d Cir.1995).
Mere conclusory allegations, speculation or conjecture
will not avail a party resisting summary judgment.Kulak v. City of New York, 88 F.3d 63, 71 (2d
Cir.1996). If there is evidence in the record as to any material fact from
which an inference could be drawn in favor of the non-movant, summary judgment
is unavailable.Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d
Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1819, 137 L.Ed.2d
1027 (1997); Rattner v. Netburn, 930 F.2d 204, 209
(2d Cir.1991). The District Court is charged with the function of "issue
finding", not "issue resolution." Gallo v. Prudential
Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224
(2d Cir.1994).
Finally, the Court of Appeals has warned that trial
courts must be especially cautious about granting summary judgment in
discrimination cases, because in such cases the employer's intent is ordinarily
at issue. See, e.g., Gallo, 22 F.3d at 1224. Since it is rare to find
in an employer's records direct proof that a personnel decision was made for a
discriminatory reason, whatever other relevant depositions, affidavits and
materials are before the district court must be carefully scrutinized for
circumstantial evidence that could support an inference of discrimination. See
Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d
Cir.1994).
It is within this framework that the Court addresses
the grounds for the present motion for summary judgment.
B. ADEA: THE STANDARDS
The ADEA provides, in relevant part, that it is
"unlawful for an employer ... to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's
age." 29 U.S.C. § 623(a)(1). At trial, it is the plaintiff's burden to
prove employment discrimination on the basis of age. Gallo, 22 F.3d
at 1224. The Court notes that age discrimination claims brought under the New
York State Human Rights Law, N.Y.Exec. Law §§ 290-301, are governed by the same
standards as those brought under the ADEA. Wanamaker v. Columbian Rope
Co., 108 F.3d
462, 467 (2d Cir.1997); Spence v. Maryland Casualty Co., 995 F.2d 1147,
1158 (2d Cir.1993).
A plaintiff asserting an age discrimination claim must
meet an initial burden of presenting evidence sufficient to establish a prima
facie case of the alleged violation of ADEA. St. Mary's Honor Center v.
Hicks,509 U.S. 502,
506, 113 S.Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993); Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248,
252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981); McDonnell Douglas
Corp. v. Green, 411
U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Cronin v.
Aetna Life Ins. Co., 46 F.3d 196, 203 (2d
Cir.1995). Once the plaintiff establishes a prima facie case, the burden shifts
to the employer to rebut it through the introduction of evidence of
non-discriminatory reasons that support a finding that unlawful discrimination
was not the cause of the discharge. Hicks, 509 U.S. at 506-07, 113
S.Ct. at 2746-47; Cronin, 46 F.3d at 203. The plaintiff retains the
"ultimate burden of persuasion" and the burden of proof to
demonstrate that the challenged employment action was the result of intentional
age discrimination. Hicks, 509 U.S. at 511, 113 S.Ct. at 2749; Cronin, 46
F.3d at 203. Since, in this case, the plaintiff resigned, she also has the
burden of proving a "constructive discharge."
A prima facie case of discharge resulting from age
discrimination is established if the plaintiff shows, through direct or
circumstantial evidence, that: (1) she was within the protected age group; (2)
she was qualified for the position; (3) she was discharged; and (4) the
discharge occurred under circumstances giving rise to an inference of
discrimination. Cronin, 46 F.3d at 204. To defeat a defendant's
motion for summary judgment, the plaintiff need only show that there is a
material issue of fact as to whether (1) the employer's asserted reason for
discharge is false or unworthy of belief; and (2) it is more likely than not
that an unlawful basis of discharge was the true reason. Chertkova v.
Connecticut General Life Insurance Co.,92 F.3d 81, 92 (2d
Cir.1996).
The parties agree that the plaintiff was within the
protected age group. Instead, the disputed issues in this case center on
whether: (1) the plaintiff can establish that she was "discharged";
(2) the "discharge" occurred under circumstances giving rise to an
inference of age discrimination; and (3) the defendant had legitimate,
non-discriminatory reasons for the employment actions taken.
I. CONSTRUCTIVE DISCHARGE
The plaintiff contends that she has satisfied the
"discharge" element of her employment discrimination claim by
proffering evidence that she was "constructively discharged."
Constructive discharge of an employee occurs when an employer, rather than
directly discharging an individual, intentionally creates an intolerable work
atmosphere that forces an employee to quit involuntarily. See Pena v.
Brattleboro Retreat,702
F.2d 322, 325 (2d Cir.1983). Working conditions are intolerable if they are
"so difficult or unpleasant that a reasonable person in the employee's
shoes would have felt compelled to resign." Lopez, 831 F.2d at
1188 (quoting Israel Alicea Rosado v. Ramon Garcia Santiago, 562 F.2d 114, 119
[1st Cir.1977]).
In the Court's view, Gruberg has presented evidence
sufficient to raise a material triable issue on the question of constructive
discharge. The "plaintiff's proof allows the inference that she was
treated arbitrarily and severely criticized despite her strongperformance. A
fact finder could infer, from the facts set forth in the affidavits and
deposition testimony, that plaintiff was among the most competent employees in
the [school].... [A] reasonable person in [Gruberg's] position might have
inferred from the circumstances, including the onslaught of unfounded criticism
coupled with the threat of [an incompetency hearing and repeated demands that
she retire], that she was compelled to leave.... Viewed as a whole, the facts
in the case at hand, if proven, would permit a finder of fact to conclude that
[Gruberg] was forced to resign." Chertkova v. Connecticut General
Life Insurance Co., 92 F.3d at 92.
The Court rejects the defendant's contention that the
plaintiff's resignation does not constitute a "constructive
discharge" as a matter of law (Defendant's Memorandum of Law, at 6). In
support of this argument, the defendant cites Stetson v. NYNEX Service
Co., 995 F.2d
355 (2d Cir.1993), where the Court of Appeals held that a constructive
discharge could not be established "simply through evidence that an
employee [is] dissatisfied with the nature of his assignments," that he
"feels that the quality of his work has been unfairly criticized," or
that "the employee's working conditions [are] difficult or
unpleasant." In the Court's opinion, the defendant's reliance on Stetson is
misguided. As the Second Circuit subsequently clarified in Chertkova v.
Connecticut General Life Ins. Co., 92 F.3d at 92,
"While the Court recognizes that a disagreement
with management over the quality of an employee's performance will not suffice
to establish a constructive discharge. ... here there is more than a
disagreement over quality. Plaintiff's evidence suggests her supervisor[s]
engaged in a pattern of baseless criticisms, [repeatedly demanded her
retirement, and threatened to bring her up on incompetency charges, a precursor
to her discharge.] ... [A] reasonable person in [Gruberg's] position might have
inferred from the circumstances, including the onslaught of unfounded criticism
coupled with the threat of [a] termination [hearing], that she was compelled to
leave."
The Court finds that there are myriad triable issues of
material fact with respect to the issue of constructive discharge. Accordingly,
the defendant's motion for summary judgment as to that issue is denied.
II. THE DEFENDANT'S ASSERTED REASONS FOR THEIR
EMPLOYMENT DECISIONS
The Court also concludes that this case is replete with
genuine issues of material fact with respect to the defendant's asserted
reasons for their employment decisions, and whether it is more likely than not
that the defendant was motivated by the plaintiff's age. The Court begins with
the plaintiff's age, a robust seventy-three. Additionally, in the Court's
opinion, the plaintiff has presented substantial circumstantial evidence that
the defendant sought to oust her due to her age. Just one year before Walsh and
Scricca assumed power, she received a stellar annual review which commended her
superior classroom management, innovative teaching style, and inspiring
lectures. One year later, the same teacher was criticized for poor classroom
control, and purported inability to capture her students' attention. In
addition to this circumstantial proof, the plaintiff has alleged that Walsh and
Scricca made various statements evidencing their improper motivation — remarks
such as that she "really ought to retire" and that "the job is
getting to be too much for you and it will only get worse." Such classic,
key statements are thinly veiled references to the plaintiff's age — or so a jury
reasonably could find. While the defendant asserts that the reason for the
sudden, drastic change in the plaintiff's evaluation was due to Walsh's
practice of conducting unannounced evaluations, in contrast to his
predecessor's preference to forewarn teachers of any observations, this merely
underscores the presence of material issues of fact as to the reasons for the
defendant's employment decisions.
In addition, the plaintiff has raised the specter of a
discriminatory pattern and practice of forcing out older teachers by placing
them on the District's Administrative Regulation 4117.1, only to replace them
with younger teachers who, interestingly, command less salaries. In fact, the
plaintiff has named ten other teachers within the district who also were
subjected to such treatment, four of whom resigned while on the Regulation
remediation plan. Moreover, the plaintiff states that she was replaced with a
teacher approximately twenty to thirty years her junior who was entitled to a
much lower salary than the plaintiff earned. This latter assertion also raises
a classic factual issue in an age discrimination case.
In sum, the Court concludes that this case is loaded
with genuine issues of material fact. For this reason, and in view of the
Second Circuit's directive that the plaintiff's burden of establishing a prima
facie case in a discrimination suit is "de minimis," Chambers, 43
F.3d at 37, the defendant's motion for summary judgment is denied in all
respects.
III. CONCLUSION
For the reasons stated above, it is hereby
ORDERED, that the defendants' motion for summary
judgment is denied.
SO ORDERED.
