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GANZY v. ALLEN CHRISTIAN SCH.

December 30, 1997

MICHELLE GANZY, Plaintiff, against ALLEN CHRISTIAN SCHOOL, and ELAINE FLAKE, Defendants.


The opinion of the court was delivered by: WEINSTEIN

 WEINSTEIN, Senior District Judge:

 Table of Contents

 I. Introduction

 II. Facts

 III. Procedural History

 IV. Law

 
A. Summary Judgment Standard
 
B. Sex Discrimination Under Title VII of the Civil Rights Act of 1964
 
1. Statute
 
2. Title VII Burden Shifting
 
a. Prima Facie Case
 
b. Non-discriminatory Reason
 
c. Pretext
 
C. New York Executive Law
 
D. New York Civil Rights Law
 
E. Historical Background
 
1. Sexuality of Women
 
2. Women in the Workforce
 
3. Today's Women in the United States: Sexuality and Workforce Participation
 
F. Public Policy Accommodating Different Views of Fornication

 V. Application of Law to Facts in Light of Jury System

 
A. Ambiguity of Evidence
 
B. Jury as the Constitutional Institution for Resolving Ambiguity

 VI. Conclusion

 An unmarried pregnant teacher in a church-affiliated school was fired. She sues the school, raising apparently for the first time in this guise in this Circuit difficult issues of conflicts between the rights to sexual freedom and against gender discrimination on the one hand, and to religious freedom to adopt and enforce different moral standards from those of the secular community on the other.

 The First Amendment affords religious organizations and their members the right to practice in accordance with their beliefs, establish schools offering parents the opportunity to educate their children pursuant to their religious tenets by hiring those who hold the same religious views, and act in accordance with their own religious-ethical values. Nevertheless, limitations on sexual activity cannot be enforced unequally on male and female employees as a means of gender discrimination.

 Fornication is not a crime in New York, and firing a public school teacher simply on this ground would not be justified. See In re Petition for Naturalization of Johnson, 292 F. Supp. 381, 384 (E.D.N.Y. 1968) (distinguishing between adultery and fornication; the latter has not been proscribed by New York criminal law); Edwards v. Roe, 68 Misc. 2d 278, 279, 327 N.Y.S.2d 307, 308 (N.Y. Civ. Ct. 1971) (the "law of New York does not proscribe normal sexual intercourse carried out between unmarried consenting adults"). By contrast, a religious school, if its religious principles so dictate, can discharge a teacher merely because he or she engages in coition outside of marriage. (The rights of a private secular school are not now at issue.)

 Women can become pregnant. Men cannot. It is therefore sometimes easier to enforce restrictions on sexual activity against a woman employee. Nevertheless, if a woman is dismissed from a teaching position in a religious school because she is pregnant, rather than because she had sexual relations, state and federal prohibitions on gender discrimination are violated.

 As demonstrated below, the history and wide variations in public attitudes toward chastity and employment of women outside the home may give rise to varying inferences on whether pregnancy rather than premarital sexual intercourse is the cause for a particular dismissal. The jury, reflective of the differences in conclusions which can be drawn by people of varying backgrounds from the same evidence, provides the appropriate constitutional vehicle for sensibly evaluating the proof in the instant case. The claims of the Plaintiff of illegal discrimination under state and federal law must be tried by a jury.

 II. Facts

 In the fall of 1995, Plaintiff Michelle Ganzy was hired by the Defendant Allen Christian School (the "School") as an elementary school mathematics teacher. Ganzy received her B.A. from Hunter College. She is certified to teach in New York state. Her teaching abilities were never challenged.

 When Ganzy joined the School, she indicated that she agreed with its "Statement of Belief" on the "Teacher's Application," which, in part, declared that "We firmly believe that the Holy Scripture contains all things necessary for salvation, and is the supreme authority by which our lives are governed." She also agreed, on the "Religious Statement" portion of the application, that her "temperament and lifestyle are in accordance with the will of God and The Holy Scripture," and she stated that "daily I grow more gracefully and spiritually mature." In response to the question "Do you feel that you have been called by God to a TEACHING MINISTRY?," the Plaintiff replied "Yes. My first year of college at Bethune-Cookman College I attended a teacher's seminar where I became inspired by the testimony of others."

 The School "puts a major emphasis on religious teaching and education:" It "expect[s] ... teachers to be role models for their students." According to the Defendant, "the Christian Principles advocated by the school includes an abolition [sic] against sexual relations outside of wedlock...."

 In early 1996, the School learned that Ganzy, then unmarried, was pregnant. Because, according to the Defendant, sexual activity outside of wedlock violated the religious views of the School, and because Ganzy's pregnancy was clear evidence that she had engaged in coitus while unmarried, Defendant Reverend Elaine Flake, co-founder and Educational Director of the School, discharged Ganzy from her teaching position. Flake offered Ganzy assistance in finding a non-teaching position with an affiliated corporation of the School for the duration of her pregnancy, with reinstatement as a teacher after giving birth. Ganzy did not accept the non-teaching position, nor did she contact the School to re-obtain her teaching position after giving birth.

 The Plaintiff was, according to her submission, never informed prior to her pregnancy of any policy against her having sex outside of marriage. While chastity before marriage was not referred to at the time of hiring, it is implied, defendant urges, on theological grounds.

 The Plaintiff contends that she was told, "I was terminated due to the fact I was pregnant and unmarried and therefore a bad role model." Defendant denies that pregnancy rather than sexual activity was the basis for dismissal. It contends that it would apply its policy against nonmarital sex to both males and females even though this is apparently the first occasion when this activity was the reason for a dismissal.

 That it was the pregnancy that caused the transfer or dismissal arguably might be inferred from the affirmation of counsel for the Defendant that Plaintiff was re-assigned "in order that Plaintiff not set a bad example to students," who "are taught that abstinence is the acceptable course of conduct with respect to sexual activity outside of wedlock." (emphasis added). Ganzy's swelling body had already been observed by her students; as one defense affidavit states: "We learned of her pregnancy from students at the School, one of whom told us there was a sketch/picture of a 'fat lady' in the Boys Bathroom, with her name under the sketch...."

 III. Procedural History

 Plaintiff alleges that her termination as a teacher is employment discrimination based on gender, in violation of Title VII of the Civil Rights Act of 1964, Section 296 of New York's Executive Law, and Section 40-c of New York's Civil Right's Law. A Right to Sue letter was issued by the Equal Employment Commission. Plaintiff and the School have moved for summary judgment. These motions are now denied.

 The Plaintiff had named Reverend Elaine Flake as a co-defendant in all of her state and federal claims. Flake independently moved for summary judgment under Title VII and the relevant state law, asserting that she could not be held individually liable for actions taken on behalf of her employer, the Allen Christian School. In the Second Circuit, Title VII liability does not extend to individual employees with supervisory control over the complaining employee. See Tomka v. Seiler Corp., 66 F.3d 1295, 1313-16 (2d Cir. 1995). Accordingly, the Title VII claims against Defendant Elaine Flake were dismissed. As the court in Tomka noted, however, supervising employees can be held liable under New York law in some circumstances. Jurisdiction to adjudicate the state causes of action against her continues, and these claims were not dismissed. See 28 U.S.C. § 1367.

 IV. Law

 A. Summary Judgment Standard

 Summary judgment is granted if there are no genuine issues of material fact needing resolution at trial, and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The party opposing the summary judgment motion must produce evidence showing that there is a genuine factual trial issue. See National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 203 (2d Cir. 1989). Conclusory allegations, speculation, or conjecture are not enough. See Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). In deciding whether there is a triable factual issue, ambiguities and reasonable inferences will be resolved in favor of the party opposing the motion. See Liscio v. Warren, 901 F.2d 274, 276 (2nd Cir. 1986).

 There has been adequate time for discovery. Plaintiff has been given an opportunity to amend her complaint. Further delay in deciding the motions is not desirable.

 B. Sex Discrimination Under Title VII of the Civil Rights Act of 1964

 
1. Statute

 Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex or religion. 42 U.S.C. §§ 2000e et seq. The relevant ...


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