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August 30, 1996

JOYCE BROOKS, Plaintiff,

The opinion of the court was delivered by: HURD


 The plaintiff, Joyce Brooks ("Brooks"), filed her complaint on December 7, 1994. Brooks alleges that the defendant Fonda-Fultonville Central School District ("School District") discriminated against her in employment because of her sex, in violation of 42 U.S.C. § 2000e. Specifically, plaintiff alleges that she was not given a permanent position as a cleaner in the School District because she is a woman. Brooks further alleges that she was fired from her temporary position in retaliation after she complained of the alleged discrimination to the Superintendent of Schools.

 A two-day bench trial was conducted on January 24-25, 1996, in Utica, New York. The court reserved decision on all claims.

 The plaintiff testified on her own behalf. Timothy Davis ("Davis") and Charlene Pollock-Gibson ("Pollock-Gibson") also testified in support of the plaintiff. In addition, William D. Higgins ("Higgins"), the Superintendent of Schools for the School District, and Daniel Szabo ("Szabo") were called as hostile witnesses by the plaintiff. George Kearns, George Rose, and Szabo all testified on behalf of the defendant. In addition to the exhibits, including stipulated exhibits, received in evidence, the parties filed Proposed Findings of Fact and Conclusions of Law on June 4 and 5, 1996.

 Based upon all of the evidence and the credibility of the witnesses, the court makes the following Findings of Fact and Conclusions of Law pursuant to Rule 52, Federal Rules of Civil Procedure.


 Plaintiff is a woman, and the School District is an employer within the meaning of 42 U.S.C. § 2000e. At the time of the incidents in question, Szabo was employed by the defendant School District and held the position of Superintendent of Buildings and Grounds. As such, Szabo had the authority to hire and fire temporary employees in the area of Buildings and Grounds. However, Szabo did not have the power to hire full-time permanent cleaners. An applicant for a permanent position would have to meet the approval of the Board of Education. In order to be considered by the board, an applicant generally needed the recommendation of either Szabo, the business manager, and/or Higgins, the Superintendent of Schools.

 Some time in 1989, Brooks approached Szabo and inquired about possible employment opportunities in the custodial or maintenance divisions within the School District. Szabo informed Brooks that in order to be considered for any position within the School District, she would have to file an application, which she did on July 31, 1989. This application was a formal application for any permanent opening within the School District. It remained on file with the School District throughout the events giving rise to this litigation. In August of 1990, Szabo contacted Brooks about an opening in the School District as a temporary full-time substitute cleaner. Brooks was hired for that position on August 27, 1990. The temporary opening occurred as the result of a dispute over the termination of Thomas Hoffman ("Hoffman") who had filed a grievance against the School District. Brooks was aware that if Hoffman were to return to his permanent position, her temporary position would most likely be eliminated. If, on the other hand, Hoffman did not return to work, Brooks was informed during her employment that she would be recommended by Szabo to the Board of Education for a permanent full-time cleaner position.

 The school consists of one large building which houses all students from kindergarten through the twelfth grade. Cleaners and other custodial and maintenance personnel employed by the School District are assigned to various shifts and assigned to specific areas of the building for cleaning responsibilities by Szabo. Most cleaners are assigned to the night shift which commences at 3:00 p.m. and ends at 11:00 p.m. Cleaners assigned to this shift have individual areas assigned to them for which they are responsible. Cleaning assignments are set during the summer for the upcoming school year and generally do not change until the following summer. Brooks normally worked the 3:00 p.m. to 11:00 p.m. shift and was assigned to clean an area in the elementary wing of the building. The only time that Brooks did not work from 3:00 p.m. to 11:00 p.m. was when she took a seasonal position with the Department of Transportation from October 1990 through March 1991. During that time, Szabo accommodated her request to modify her work schedule, and Brooks worked at the School District from 10:45 p.m. to 2:45 a.m. and her daughter, also an employee of the School District, worked the other four hours of the shift. In March or April of 1991, plaintiff returned to the normal 3:00 p.m. to 11:00 p.m. shift. Overall, Szabo was pleased with the plaintiff's work and considered her to be one of the better cleaners. *fn1"

 Effective February 15, 1991, John Cranker ("Cranker"), also an employee of the School District, resigned his employment as a permanent full-time cleaner. Cranker was assigned to the "pool area" and his resignation subsequently created an opening in that division. The pool was located in the basement or cellar of the school building. Cleaning the pool area entails some different tasks than other areas of the building. For example, the cleaner responsible for the pool area has to operate a "dry-a-thon" machine, clean hair and lint filters, foam wash the area, and fill the chlorine and muriatic acid tanks. According to Szabo, training an individual to perform these duties takes approximately one full week. There was no reason why the pool position needed to be filled by a man. Plaintiff was fully qualified for the pool cleaning job.

 Shortly after learning of Cranker's resignation in early February of 1991, Brooks expressed to Szabo an interest in obtaining that permanent position. Szabo responded by saying that "he would never put a woman in that area to clean." (Tr. Jan. 24, 1996 at 34). When asked why, Szabo stated it was "because he didn't want a woman in the cellar." (Tr. Jan. 24, 1996 at 34). It is clear to the court that at that point in time, the plaintiff was unaware of her rights regarding gender discrimination. Further, Brooks was intimidated by Szabo and did not want to create tension between them since his recommendation was pivotal if she were to obtain permanent employment. Moreover, it is apparent that although the plaintiff would have taken the permanent pool area position, she was hoping that the Hoffman dispute would be resolved and that she could continue working in her current work assignment, but as a permanent rather than temporary employee. Shortly after his conversation with Brooks, Szabo hired Mr. Francis Bell ("Bell"), a life-long friend, as a temporary cleaner in the pool area. Although Szabo had been accommodating to the plaintiff in the past, it is clear that his desire to have a man in the pool area position and his wish to assist a friend overruled any further assistance he was willing to give Brooks.

 During the next three months, Brooks waited for the permanent pool area position to be posted. Although Bell had been selected for the temporary position, Brooks was satisfied that the permanent position was still open. However, the defendant never made the required public posting of the position. On April 30, 1991, the plaintiff learned that Bell was hired to fill the permanent pool area position. On May 1, 1991, the day after Bell was hired as a permanent cleaner, at the suggestion of her coworkers Pollock-Gibson and Davis, Brooks went to speak with Superintendent Higgins. In an effort to avoid any controversy between herself and Bell, before talking to Higgins, Brooks informed Bell that she was going to talk to Higgins and express her feeling that it was unfair that Bell had received the permanent pool area position.

 Brooks notified Higgins of what was happening and that Szabo refused to hire a woman to clean the pool area. At trial, Higgins claimed that his recollection of the conversation with the plaintiff was "hazy" and that all he could remember was that there "seemed to be some conflict between Ms. Brooks and Mr. Szabo," and that the only thing Brooks wanted to discuss was an increase in her salary. (Tr. Jan. 24, 1996 at 125). In fact, at one point in his testimony, Higgins even denied that any such conversation took place with Brooks after Bell was hired for the permanent position. The court finds it persuasive that Brooks took the time to inform Bell that she was going to Higgins and complain that it was unfair for Bell to receive the permanent pool area position. First, it shows that a conversation between Brooks and Higgins must have taken place. Otherwise, why would plaintiff talk to Bell? Second, it also illustrates that Brooks voiced her opinion about the unfairness in not receiving the permanent position because of her gender, even before talking to Higgins. Had, in fact, the Brooks/Higgins conversation been merely about her salary or earnings, as Higgins suggests, Brooks would have had no reason to inform Bell of her plans to speak to the Superintendent about the fairness of Bell's appointment. Bell, the life-long friend of Szabo's, was never called by the defendant to refute either the fact or the content of Brooks' conversation with him prior to her seeing Higgins.

 On May 2, 1991, Brooks did not report to work because of illness. When she reported to work on Friday, May 3, 1991, Szabo called Brooks into his office. Szabo became very upset and yelled at her asking, "Who the hell [do you think you are] going to Mr. Higgins?" (Tr. Jan 24, 1996 at 39). From this evidence, it is apparent that Higgins had contacted Szabo about the conversation between Brooks and himself. The mere fact that Szabo knew of the conversation between Brooks and Higgins strongly supports the plaintiff's assertions. Neither Higgins nor Szabo suggested that Higgins had not informed Szabo of the plaintiff's allegations of discrimination.

 Szabo said other things including, "I told you before I would never put a woman in that area to clean." (Tr. Jan 24, 1996 at 39). Szabo further told Brooks that she would not receive a raise in salary and that she would never be hired as a permanent cleaner because he would never recommend her for a position. Brooks then briefly left the room because she was upset. Upon her return, Szabo shouted at her again. Brooks asked Szabo if she was fired. In response, Szabo asked, "Is that what you want?" To which she responded "no" and that "he would not aggravate her into quitting." (Tr. Jan 24, 1996 at 41). Szabo then told her that "she was insubordinate," and that she was to "get out of the building." (Tr. Jan 24, 1996 at 41). The plaintiff then gathered her belongings and left the building under the impression that she had been fired.

 Sometime over the weekend, Brooks contacted Rick Raco ("Raco"), a member of the school board, and told him what had happened. Raco told Brooks to contact Higgins on Monday. On Monday, May 6, 1991, at approximately 8:00 a.m., Brooks contacted Higgins by telephone. Brooks informed Higgins of the events of Friday, May 3, 1991, and Higgins said the he would contact Szabo and call her back. After three hours, Brooks called Higgins again and was informed by his secretary that Szabo would get back to her shortly. Approximately 45 minutes later, Szabo called Brooks and told her that she "wasn't to come back and that it was to go his way, that [she] wasn't to have a job there." (Tr. Jan. 24, 1996 at 46). When Brooks told Szabo that she was going to go to the unemployment office, he responded that he did not care. Brooks heard nothing further from Szabo or the School District.

 The defendant did not produce any records indicating the reason Brooks left her employment with the School District. For the next fifty-two weeks, Brooks collected unemployment benefits which went unchallenged by the defendant. Brooks was fired from her temporary position.

 Timothy Davis was a coworker of Brooks and is currently employed by the defendant. The same day of the May 3, 1991 confrontation between Brooks and Szabo, he asked Szabo what had happened. Szabo stated that he told her "to get the hell out of there and that he was done with her," and added "that it would be a cold day in hell before he would hire her." (Tr. Jan 25, 1996 at 213-14). In a subsequent conversation with Szabo, when Davis asked why Szabo did not hire Brooks for the pool area, he stated it was "because he didn't want to put a woman in the pool area." (Tr. Jan 25, 1996 at 216). Charlene Pollock-Gibson is also a former coworker of Brooks who is also currently employed by the School District. When Pollock-Gibson asked Szabo why a woman could not clean the pool area, Szabo responded that "he didn't think this was a place for a woman to be cleaning at that time." (Tr. Jan 25, 1996 at 235). The court finds the testimony of Davis and Pollock-Gibson extremely credible since they are both still employed by the School District, report directly to Szabo, and face potential anger and/or retaliation for their testimony.

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