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March 24, 1999


The opinion of the court was delivered by: Glasser, District Judge.


Plaintiff Tracy Ticali ("Ticali") complains that she was discriminated against by her former employer, the Parochial School of Saints Peter and Paul Roman Catholic Parish (the "School"), because she was white, a lay catholic and a native-born non-Hispanic. She alleges that the School schemed to fire the white, lay teachers and replace them with Hispanic teachers, preferably Hispanic nuns from Argentina. In pursuit of this plan, the plaintiff asserts that the School harassed, demeaned and belittled her. The plaintiff further contends that when she complained about the treatment to the Equal Employment Opportunity Commission ("EEOC"), she was constructively discharged from her position in retaliation for the complaint.


The parties do not dispute most of the facts underlying the plaintiffs various claims. However, each side vigorously contests the conclusions and inferences that may be drawn from these facts, which, accordingly, are set forth in some detail below.

From September 1993 through June 1996, the plaintiff was a first grade teacher at the School, which is operated by the defendant Saints Peter & Paul Parish, E.D. (the "Parish") and located in Brooklyn, New York. Ticali Jan. 1999 Decl. ¶ 2. The student body at the School is overwhelmingly Hispanic. Id. ¶ 3. Defendant Teresa Chesnavage ("Chesnavage"), a nun in the Society of the Sisters of the Church, was the assistant principal of the School during Ticali's first year there and became the principal shortly before the opening of the 1994-95 school year. Id. ¶ 5.

Ticali completed her first year of teaching (1993-94) without incident — in her words she "performed satisfactorily." Id. ¶ 4. During the 1994-95 school year, Ticali again received evaluations leading her to believe that her work was acceptable. For example, in February of 1995, Chesnavage observed Ticali teaching her class to read. Chesnavage reported favorably on that observation, writing, "Tracy has a wonderful rapport with her students. . . . Ms. Ticali has worked hard to develop techniques that help her students progress in reading and phonics." Id. at Ex. A.

Ticali worked at the School pursuant to successive one-year employment contracts. The contracts provided a non-renewal deadline — either party could elect not to renew the contract by communicating that election to the other party by April 15th. Toward the end of her second year, Ticali elected to renew, and, on April 30th, 1995, signed a contract for the 1995-96 school year. Id. ¶ 7.

In the Spring of 1995, at a teachers' meeting prior to the end of the school year, Chesnavage commented that nuns from Argentina were coming to the Parish and that some of them would be helping out at the School. Ticali did not regard this news as noteworthy at that time. Id. ¶ 8.

On June 20th, 1995, sometime after the above mentioned teachers' meeting, Chesnavage followed Ticali out of a staff meeting and into her classroom, and proceeded to "berate" her on a number of subjects. Id. ¶ 9. Chesnavage criticized Ticali for suggesting to a student's guardian that the student might benefit from repeating first grade. Id. Chesnavage also chastised Ticali for requiring a chaperon on a field trip and for being unprofessional. Id. Finally, Chesnavage called Ticali and a group of other white, non-Hispanic teachers "bochingchettas" — a Spanish term for gossipmongers. Id.

During the June 20th, 1995 conversation, Ticali said to Chesnavage "a remark to the effect that `it's not like we want to get rid of you but we don't like the way you talk to us like we're children.'" Id. ¶ 10. Chesnavage subsequently typed Ticali's comment on a sheet of paper, and presented the typed comment to Ticali and the other teachers in the School for their signature. Id.

On June 22d 1995, Ticali went to see Monsignor Augustin Ruiz ("Ruiz"), the Pastor and Corporate Secretary of the Parish, to discuss the poor relationship she and other teachers had with Chesnavage. Id. ¶ 11. Ticali asked Ruiz to come to the School to mediate the problems that they were having. Id. Later that day, after considering the advice given to her by another teacher, Ticali returned to Ruiz and told him that she would try to settle things with Chesnavage without his assistance. Id.

On June 23rd, 1995, Chesnavage gave Ticali her regularly scheduled year end evaluation. Id. ¶ 12. During the evaluation, Chesnavage reprimanded Ticali for discussing their relationship difficulties with Ruiz and requested that Ticali resign and not teach the following year. Id. She informed Ticali that the School would not renew her contract for 1996-97 if she insisted on teaching during the 1995-96 school year and that a "paper trail" would be assembled against her. Id. However, Chesnavage promised Ticali a favorable reference if she were to voluntarily leave the school. Id. Although Ticali considered her evaluation "satisfactory overall but highly unfavorable in several respects," id. ¶ 13, this Court characterizes the evaluation as a positive one, despite the few areas noted for improvement. See id., Ex. B ("With more experience Tracy has the potential to become a very good primary grade teacher."). At the conclusion of the meeting, Ticali told Chesnavage that she would consider her request to resign. Id. ¶ 14.

Throughout July 1995, Chesnavage pressed Ticali to make a decision concerning her resignation by leaving telephone messages at her house and by sending her a certified letter requesting a meeting to discuss the matter. Id. ¶ 14, Ex. C. Sometime that month, Ticali learned that after the school year had ended Chesnavage had asked Cailin Healey, the kindergarten teacher, to resign. Id. On hearing the news about Cailin Healey, Ticali retained counsel because she "was now concerned that [Chesnavage] was trying to get Mrs. Healey and I to resign in order to open up positions for the nuns from Argentina." Id.

On August 18th, 1995, pursuant to a letter from Ticali's counsel to the Diocese's education office, a meeting was held between Ruiz, Chesnavage and Ticali. Id. ¶ 15. At that meeting, Chesnavage and Ruiz gave Ticali explicit assurances that she would be treated fairly during the coming year and that the decision whether to renew her contract at the end of the year would be done based on a "clean slate." Id.

Over the course of the 1995-96 school year, Chesnavage closely scrutinized Ticali and provided criticism of her work in the form of memoranda and evaluation conferences. Id. ¶ 16. Chesnavage observed Ticali teach a reading class on February 17th, 1996 and, on March 22d 1996, they discussed Chesnavage's observations. Id. ¶ 17. Ticali thought that Chesnavage's comments were "devastatingly unfavorable," although the written report Chesnavage gave Ticali contained marks that were mostly in the "acceptable" to "good" range. See id., Ex. F (The written report was a form that required the evaluator to indicate, on a scale, how the teacher performed in a number of areas, including "Classroom Routines," "Pupil-Teacher Relationships" and "Teaching Skills." The scale contained the following categories: "unsatisfactory," "needs improvement," "acceptable," "good," and "excellent.").

In the March 22d 1996 conference, Chesnavage told Ticali that she "did not have the `know how' to teach `these children' and that [she] should be teaching in a suburban area where there are no problems." Id. ¶ 17. Ticali now contends that the remarks "know how," "these children," and "suburban areas" were discriminatory and on April 11th, 1996 filed a discrimination charge with the EEOC against both the Parish and the Diocese.*fn1 Id. ¶¶ 18-19.

On April 18th, 1996, Chesnavage sent a memorandum to Ticali criticizing her for not testing the students enough. Id. ¶ 22, Ex. G. Ticali received additional memoranda criticizing her work on April 25th, May 21st and May 23rd, 1996. See id., Exs. H, I & J. Chesnavage also verbally chastised Ticali during this period. Id. ¶ 24.

On April 19th, 1996, four days after the April 15th contract renewal deadline had elapsed, Ticali received a letter from Chesnavage informing her that her contract would not be renewed. Id. ¶ 21. In response, on May 19th, 1996, Ticali filed a "Retaliation Charge" with the EEOC against the Parish and the Diocese. On May 20th, 1996, through a letter from her attorney, Ticali protested the untimeliness of the School's termination letter and demanded that she receive a contract for the 1996-97 year. After discussing the situation with Ruiz, Chesnavage retracted the non-renewal letter and, on May 23rd, 1996, offered Ticali a position as the pre-kindergarten teacher at the School for the 1996-97 term. Ticali did not accept this position nor did she accept it when it was again offered to her by letter on June 7th, 1996.

On June 21st, 1996 Ticali received notice of her "Right To Sue" from the EEOC and, on September 20th, 1996, filed this Complaint alleging multiple claims. She contends that the Diocese and the Parish engaged in unlawful employment practices and retaliation, in violation of §§ 703(a)(1) and 704 of Title VII, 42 U.S.C. § 2000e-2 (a)(1) and 2000e-3 ("Title VII"), the Civil Rights Act of 1991 and New York Human Rights Law, N.Y. Exec. L. §§ 296 et seq., by discriminating against her with respect to her employment because of her race, religion and national origin. In addition, the Complaint alleges that all the defendants interfered with Ticali's contract rights, in violation of 42 U.S.C. § 1981. Further, Ticali brings a claim of intentional infliction of emotional distress against all the defendants. Finally, Ticali alleges that the Diocese and the Parish breached their employment contract with her.

The defendants now move for summary judgment on all of the plaintiff's claims. Ticali cross-moves for summary judgment on her breach of contract claim. In a separate motion, the plaintiff requests that this Court strike various affidavits and exhibits and not consider them in its determination of the substantive motions. Each party has also moved to disqualify the counsel for the other side. These motions are now considered.


I. Summary Judgment

A. Legal Standard

Summary judgment under Rule 56 is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of proof on such motion. See United States v. All Funds, 832 F. Supp. 542, 550-51 (E.D.N.Y. 1993).

If the movant satisfies its initial burden of production, the burden of proof shifts to the nonmovant who must demonstrate that a genuine issue of fact exists for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a jury could return a verdict in its favor. Id. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admission on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Once the nonmovant has adduced evidence of a genuine issue of material fact, its "allegations [will be] taken as true, and [it] will receive the benefit of the doubt when [its] assertions conflict with those of the movant." Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir. 1996).

In employment discrimination cases, courts are particularly cautious about granting summary judgment where intent is at issue. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). However, even in these cases a "plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Id.

B. Defendants' Failure to File Rule 56.1 Statements

Federal Rule of Civil Procedure 56(e) provides that when a motion for summary judgment is made and supported by affidavits and depositions, an adverse party's response "by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate shall be entered against him." In this case, despite the defendants' failure to file a controverting Rule 56.1 statement, it is not appropriate to enter an order of summary judgment against them because the defendants have responded to the plaintiff's motion with affidavits showing that any contested issues of fact between the parties are not material. To the extent that there is some dispute between Ticali's Rule 56.1 statement and the defendants' papers, the facts will be viewed in the light most favorable to the plaintiff and any facts in Ticali's Rule 56.1 statement which remain uncontroverted by the defendants' papers will be accepted as true. See Dusanenko v. Maloney, 726 F.2d 82, 84 (2d Cir. 1984).

Turning to the defendants' motion for summary judgment, the court notes that, while it could deny their motion on the ground that they failed to comply with Local Rule 56.1, this Court is not compelled to do so but may overlook the "technical deficiency" of a party's submission. Zeno v. Copper, 650 F. Supp. 138, 139 (S.D.N.Y. 1986) (citing Reisner v. General Motors Corp., 511 F. Supp. 1167, 1174-75 n. 14-15 (S.D.N Y 1981), aff'd, 671 F.2d 91 (2d Cir.), cert. denied, 459 U.S. 858, 103 S.Ct. 130, 74 L.Ed.2d 112 (1982)). Though the defendants indeed failed to submit a Rule 56.1 statement with their moving papers, their affidavits set forth clearly the few issues of fact that are disputed and will be deemed to satisfy the rule.

C. The Motion to Strike Various Affidavits and Exhibits

In an additional procedural matter, the plaintiff requests that this Court strike certain materials that have been submitted either in support of defendants' motion for summary judgment or in opposition to plaintiff's motion for summary judgment. The only "material" aimed at which the Court will consider are the "Teachers' Affidavits" (made by teachers and staff who worked ...

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