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GERARDI v. HOFSTRA UNIV.

August 24, 1995

JOSEPHINE GERARDI, Plaintiff, against HOFSTRA UNIVERSITY, Defendant.


The opinion of the court was delivered by: DAVID G. TRAGER

 Plaintiff filed this employment discrimination action pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623, claiming that defendant, Hofstra University ("Hofstra"), failed to hire her based on her age. Before the Court is Hofstra's motion for summary judgment.

 Background

 Gerardi was invited in to meet Spencer for a pre-screening interview on July 13, 1990. Gerardi Aff. P 16; Spencer Aff. P 16. Both parties admit that during this interview, Spencer advised Gerardi that although many of the other counselors were younger, there were other employees at the office who were approximately the same age as herself and Gerardi. Gerardi Aff. PP 16, 19; Spencer Aff. P 18; Spencer Dep. at 30-31. Although Spencer maintains that she indicated to Gerardi that she "looked favorably upon an individual who was a little older and more settled in the area", Spencer Aff. P 18, Gerardi claims she was never told that her age was a factor in her favor. Gerardi Aff. P 20. Additionally, Gerardi claims that Spencer informed her that Advisement Counselors worked 9 a.m. to 5 p.m., except that one day each week, they were required to work until 8 p.m. Gerardi Aff. P 18. Spencer, however, claims she informed Gerardi that counselors worked a "minimum" of one evening each week. Spencer Dep. at 29-30.

 According to Gerardi, twelve of the twenty individuals who had met with Spencer were granted call-back interviews. Gerardi Aff. PP 25, 27. However, in late July, 1990, Gerardi was informed that she was not granted a call-back interview. Gerardi Aff. PP 25, 27; Spencer Dep. at 57. Gerardi was also informed by Spencer that Hofstra had hired two other applicants, aged 22 and 25. Gerardi Aff. PP 25, 26; Spencer Dep. at 64-65, 68. At that time, neither applicant had received a Master's degree. Gerardi Aff. P 57; Spencer Aff. PP 23, 24.

 On November 14, 1990, Gerardi filed a complaint with the New York State Division of Human Rights, which was forwarded to the Equal Employment Opportunity Commission ("EEOC"). Gerardi Aff. PP 123, 124. In its response, Hofstra asserted that it chose not to hire Gerardi because she lacked college-level student services work experience. Crance Aff. P 9; DaVolio Aff. P 10; Hickling Aff. P 13. Furthermore, Hofstra maintained that its Director, Associate Director, and Assistant Director of Advisement, and two part-time individuals, who Spencer believed to be "Counselors" were all over thirty-four years old. Spencer Dep. at 69-72. *fn1"

 On June 15, 1992, the EEOC issued a determination, stating that the record suggested that Hofstra's reasons for not hiring Gerardi were pretext for unlawful age discrimination. Gerardi Aff. PP 125-27, Ex. N. Pursuant to 29 U.S.C. § 626(d), the EEOC then sought to rectify the alleged discrimination through "conciliation, conference, and persuasion." Gerardi Aff. P 128. In August 1992, in response to the EEOC's conciliation efforts, Hofstra offered Gerardi a position as an Advisement Counselor, with seniority retroactive to July 1990, and a back pay cash payment. Gerardi Aff. P 133; Gerardi Dep. at 125-27. Gerardi quit her job at the Board of Cooperative Educational Services of Nassau County and reported for work on September 1, 1992. Gerardi Aff. P 134; Gerardi Dep. at 128. When she showed up at work, Gerardi discovered that this job was a newly created position to counsel part-time students and that the hours for this job were to be noon to 8 p.m. Monday through Thursday, and 9 a.m. to 5 p.m. on Friday. Gerardi Aff. PP 134-35; Gerardi Dep. at 131, 133. Gerardi then refused to accept Hofstra's offer (Gerardi Aff. P 134, 135; Gerardi Dep. at 131, 133).

 According to Gerardi, and there is nothing in the record at this point to indicate otherwise, she told the EEOC counselor that because she needed to take care of her 14-year old son who was living at home, she would be unable to regularly work the evening hours. Gerardi Aff. P 136; Gerardi Dep. at 133. According to Gerardi, the EEOC counselor stated that the counselor "assumed that they [the hours] were the same as the position originally applied for" and told Gerardi that she would attempt to resolve the matters. Gerardi Aff. PP 136-37; Gerardi Dep. at 132. When the EEOC counselor got back to Gerardi, she was told, "well that's the position." Gerardi Dep. at 133. Gerardi claims that she then sent a letter outlining what happened to the EEOC counselor's supervisor. *fn2" Gerardi Dep. at 133.

 On September 30, 1992 the EEOC informed Gerardi that it was terminating its investigation of her claim, and issued her a right to sue letter. Gerardi Aff. P 142. This letter further indicated that Hofstra's offer constituted "all relief [the EEOC] could expect to obtain were [the EEOC] to litigate the case." Gerardi Aff. Ex. O. According to Gerardi, in December 1992, Hofstra once again offered her a position as an Academic Counselor. Gerardi Dep. at 138. Although the hours for this job were to be 9 a.m. to 5 p.m., Gerardi refused this offer because Hofstra had not offered any backpay or retroactive seniority. Gerardi Dep. at 138. On January 18, 1993, Gerardi filed this lawsuit in the Eastern District of New York.

 Discussion

 In support of its motion for summary judgment, Hofstra advances two arguments. First, relying upon Wrenn v. Secretary, Dep't of Veterans Affairs, 918 F.2d 1073 (2d Cir. 1990), cert. denied, 499 U.S. 977 (1991), Hofstra argues that Gerardi's refusal to accept its first offer during the EEOC's conciliation efforts, which allegedly constituted full relief, bars her claim in federal court. Id. at 1078. Second, Hofstra argues that it is entitled to judgment as a matter of law as Gerardi has not established that any genuine issues of material facts exist, and as she has not established a prima facie claim of age discrimination.

 The August 1992 "Settlement" Offer

 The issue of "what constitutes full relief is ultimately a legal question to be determined by the court." Greenlaw v. Garrett, Secretary, Dep't of the Navy, 59 F.3d 994, 1995 WL 410295, at *6 n.12 (9th Cir. July 12, 1995). See also Frye v. Aspin, 997 F.2d 426 (8th Cir. 1993) (government's offer must be examined by the court even after certified by EEOC as an offer of full relief); Allen v. West, 884 F. Supp. 519, 523 (D.C. 1995) ("under EEOC precedent, the remedy a plaintiff seeks is 'a matter of law, which may be totally independent of any relief which the complainant may have initially sought in his complaint'") (quoting Ducay v. United States Postal Serv., 91 FEOR 3050, XII-620, EEOC No. 05900470 (1990)). In the present case, the underlying facts of the offer are undisputed. In August, 1992, Gerardi was offered relief which included reinstatement, backpay, and retroactive seniority. She claims that she rejected ...


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