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
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
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.
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
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.
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
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.
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 ...