The opinion of the court was delivered by: HECKMAN
REPORT AND RECOMMENDATION
This matter was referred to the undersigned by the Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. § 636(b). Defendant filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Oral argument of this motion was held before the undersigned on November 19, 1996. For the following reasons, it is recommended that defendant's motion be denied.
This action was brought under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the New York Human Rights Law § 290 et seq. Plaintiff was born on May 22, 1941. She was employed in November of 1980 by defendant Williamsville Central School District as a teacher's aide. In September of 1982, she was assigned to the Special Education Team at Williamsville East High School, where she worked as a teacher's aide until she resigned on September 3, 1993. (see Item 1; Item 12, P 3).
After the commencement of the 1992-93 school year, a temporary replacement (regular substitute) special education teaching position became available at Williamsville East. The position was posted, and 229 people applied for the job. Four candidates were interviewed for the position, but one of those candidates--Tracey Anne Bulger--withdrew her name from consideration for the substitute teaching position. Plaintiff was one of the other three candidates who were interviewed, and was one of two candidates whose names were submitted to Eugene L. Bartkowski, defendant's Director of Pupil Personnel Services, for further consideration. The other candidate was Kathi Kowalski. Mr. Bartkowski tabulated the results of the interviews for the two candidates (see Item 19, Exs. A-C). By memorandum dated November 2, 1992, Mr. Bartkowski recommended to Louis J. Nanni, defendant's Assistant Superintendent for Personnel, that Ms. Kowalski be offered the position (Item 9, Nanni Aff., Ex. 21). According to Mr. Bartkowski, "the collective opinion was that [Ms. Kowalski] was the better candidate, although the rating was very close" (id.).
Based on Mr. Bartkowski's recommendation, and after interviewing Ms. Kowalski, Mr. Nanni submitted Ms. Kowalski's name to the Board of Education for appointment to the position of temporary replacement special education teacher. In a letter dated November 13, 1992, Mr. Bartkowski notified plaintiff that the position had been filled, but that her candidacy continued for other special education teacher positions expected to become available in the future (id., Ex. 22).
On January 19, 1993, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"), in which she stated the following:
I applied for a regular substitute special education teacher position at Williamsville East High School on September 8, 1992. On November 17, 1992, I was notified by letter that I did not get the position, though I was qualified. The person who did get the position was 23 years old. I am 51.
I believe that I was not hired for the position because of my age . . . in willful violation of the [ADEA].
(Id., Ex. 23). On approximately April 2, 1993, defendant filed a response to this charge in which it claimed that the decision to hire Ms. Kowalski was the result of the district's "shared decision making process" in which the individuals who interviewed plaintiff "ranked her below the successful candidate who had actual classroom teaching experience" (id., Nanni Aff., P 20).
In May of 1993, a permanent (probationary) special education teaching position became vacant at Williamsville East. The vacancy was posted, and plaintiff and Ms. Bulger (the person who had withdrawn her name from consideration for the substitute teaching position) were the only two candidates considered for the job. In a memorandum dated June 8, 1993, Dr. Johannes Olsen (the principal at Williamsville East) recommended to Mr. Bartkowski that Ms. Bulger be appointed to the position (see id., Ex. 24). A Superintendent's personnel report dated July 6, 1993 indicates that Ms. Bulger was appointed to the position by the Board of Education, effective September 1, 1993 (Item 18, Ex. B). According to Mr. Nanni, upon the Board's approval of Ms. Bulger's appointment, he sent her a contract. When she did not respond, Mr. Nanni telephoned her and learned that she was no longer interested in the position (item 18, P 17). The position was reposted on August 19, 1993 (Item 9, Ex. 36), and Ms. Bulger's resignation was accepted by the Board of Education at its August 24, 1993 meeting (id., Ex. 35). Plaintiff did not reapply for the position, and it was offered to and accepted by Beth Long, who was the highest ranked of the three candidates who interviewed for the position (id., Exs. 37-39).
Meanwhile, in May of 1993 vacancies were also posted for two special education positions at Heim Middle School. Plaintiff was one of eight candidates who were interviewed. The positions were offered to and accepted by two candidates other than plaintiff (see id., Exs. 26-31).
By letter dated July 27, 1993, Mr. Nanni offered plaintiff a regular substitute special education teaching position at Dodge Elementary School (id., Ex. 32). By letter dated August 3, 1993, plaintiff declined the offer, stating:
After serious deliberation . . ., I find that such a position would not be advantageous in meeting my long term goal of attaining permanent placement in the district I have served in for so many years.
I remain open to the opportunity to serve in other permanent positions and would appreciate consideration for the same.
(Id., Ex. 33). By letter dated August 4, 1993, Mr. Nanni informed plaintiff that she should "respond specifically to any future postings of vacancies for which [she] would like to be considered" (id., Ex. 34).
By letter dated September 3, 1993, plaintiff resigned from her position as educational aide at Williamsville East. In her letter of resignation, plaintiff stated:
On December 1, 1994, the EEOC issued its determination on plaintiff's charge. The determination stated as follows:
Charging Party alleged that she was discriminated against in violation of the [ADEA] in that Respondent had denied her a position as regular substitute teacher because of her age, 51, in November 1992, and in that Respondent did not hire applicants 40 years old or older for teaching positions. Charging Party subsequently alleged that Respondent violated the ADEA in that it denied her permanent teaching positions in 1993 because of her age and because she filed this charge.
The investigation included a fact finding conference and a review of documents related to the selections in question and revealed that the candidates selected to fill the 1992 and 1993 vacancies all had experience as classroom teachers while Charging Party did not. Based on this analysis, I have determined that the evidence obtained during the investigation does not establish a violation of the statute.
Plaintiff filed this action on March 1, 1995 (Item 1). She alleges in her complaint that she was discriminated against on the basis of her age as a result of defendant's failure to offer her the substitute teaching position in 1992 (the "first position"), the permanent teaching position in 1993 (the "second position") and one or both of the Heim Middle School positions (the "third position"). She also alleges that defendant discriminated against her by reposting the permanent teaching position when the other candidate declined it, and by failing to offer plaintiff other unspecified positions.
Defendant moves for summary judgment on the ground that it has come forward with evidence of legitimate, nondiscriminatory reasons for selecting candidates other than plaintiff to fill each of the special education teaching positions that became vacant in 1992 and 1993. Defendant also contends that its July, 1993 offer of employment to plaintiff tolls its liability for back pay. Finally, defendant contends that plaintiff failed to exhaust her administrative remedies ...