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February 28, 2000


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


This action arises under the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 621 et seq., and the New York Human Rights Law, N.Y. Exec. Law §§ 290-301. Plaintiff Lenore Gavigan, a New York State-certified school teacher, claims that defendant Clarkstown Central School District ("Clarkstown") refused to hire her on five separate occasions because of her age. Plaintiff seeks back pay, front pay, benefits and compensatory and consequential damages. Defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, claiming that: plaintiff's age was not a factor in the district's decision not to hire her; plaintiff's claims which arose prior to 1994 are time-barred; and Clarkstown is an instrumentality of the state, and thus immune to suit under the ADEA. For the reasons that follow, defendant's motion is denied.


Plaintiff was born on August 17, 1946. She has a Bachelor of Arts degree from the College of Mt. Saint Vincent, a Master of Arts degree in teaching from Manhattanville College and doctoral credits from Fordham University. (Pl.Aff. ¶ 2.)

In 1969, the New York State Education Department issued plaintiff an English Certificate permitting her to teach in public schools and she began her teaching career. In 1972, plaintiff became a substitute teacher for Clarkstown High School South. After a hiatus from teaching, which lasted several years, plaintiff resumed her career in 1979. Since then, she has taught basic, Regents and honors English classes and English as a Second Language ("ESL") classes. Plaintiff also has taught college-level courses. None of the positions plaintiff has held since 1979 were at Clarkstown. (Id. ¶ 3.)

Plaintiff states that in 1992, at age forty-six, she was interviewed by Clarkstown High School South Principal Gerald Bierker for a teaching position at Clarkstown. Plaintiff claims that a young, inexperienced teacher got the job instead of her. (Pl. Dep. at 49-50.) Plaintiff interviewed for two other positions within Clarkstown in 1992, one as an eighth-grade English teacher and another as an ESL teacher. Plaintiff was not hired for either position. (Id. at 54-56.) Plaintiff claims that the jobs went to teachers under the age of thirty, an assertion that defendant does not refute.

In August 1993, plaintiff again was interviewed for a position within Clarkstown as an eighth-grade English teacher. Plaintiff states that during the job interview she told her interviewer, "If my age is going to be a factor here, let us not go through the whole process." (Id. at 63.) Plaintiff claims that a younger, more inexperienced teacher got the job. (Id. at 65.)

Plaintiff states that she thereafter went to Bierker's office to speak with him. Plaintiff claims that at this meeting: "[Bierker] closed the door. He said this is completely off the record, and I will never admit to it. I don't want to see you beat your head against a wall anymore. Your age is the absolute factor here. They will not hire anyone of your age." (Id. at 68.)

In August 1994, after being contacted by Martha McClurken (now Ryan), supervisor of special programs at Clarkstown, plaintiff applied for a position with Clarkstown as an ESL teacher. (Id. at 74.) Plaintiff went on an initial interview with Ryan. During that interview, plaintiff discussed her perception that Clarkstown did not hire older or experienced teachers. Ryan states that she told plaintiff that she "did not believe that to be true" and that she "thought that experience was a positive in someone's favor." (Ryan Dep. at 16.)

Plaintiff then interviewed with Ryan and approximately three Clarkstown principals. Ryan states that plaintiff told them during the interview "that she was surprised that the District was still using some teaching assistants and was out of compliance [with state regulations] in that we tended to have more teaching assistants than certified teachers in the program at that time." (Id. at 17.) Ryan states that following the interview, she felt "concern that a candidate, in an interview situation, would challenge the District and its procedures." (Id.)

Plaintiff claims that when asked what her aims for the ESL program would be, she told the interviewers that if she were hired, one of her goals would be to bring the program into compliance with state regulations. (Pl. Dep. at 79.)

Ryan admits that the district was not in compliance with state regulations, but states that she took plaintiff's statement as "somewhat of a judgment." (Ryan Dep. at 18.) Ryan states in her deposition that plaintiff:

came across as a much — with a much stronger personality than certainly [the successful candidate] did. And I think there were some concerns and there were some discussions after the interview that some of Lenore's statements — and again, the only statement that I remember specifically, which was the one questioning the compliance with the District, you know, was a little bit strong and a little bit negative. And, you know, might be a potential concern.

(Id. at 25.)

Ryan states that the successful candidate had one year of experience and was certified in elementary education as well as in ESL. Plaintiff had one year of ESL teaching experience at the time of the interview. (Id. at 21.) Ryan also states that the applicant Clarkstown hired "really had the interpersonal skills to be well-received and accepted by classroom teachers and would kind of have the finesse to work successfully with those teachers." (Id. at 22.)

Francine Cuccia, the principal of Link Elementary School and one of plaintiff's interviewers, states in an affidavit that "Mrs. Gavigan was not hired because another candidate was better suited to the position." (Cuccia Aff. ¶ 2.) Cuccia states: "My consideration of Mrs. Gavigan's candidacy was in no way influenced by her age. I have hired teachers of a similar or older age in the past." (Id. at ¶ 3.) Carol Pilla, principal of Laurel Plains Elementary School and another of the interviewers, states: "Mrs. Gavigan was not hired because another candidate demonstrated a personality and temperament better suited to the position. My consideration of Mrs. Gavigan's candidacy was in no way influenced by her age." (Pilla Aff. ¶¶ 2, 3.)

Plaintiff claims that she worked in the Middletown School District with the successful applicant and that the successful applicant left her teaching position there in violation of a thirty-day notice requirement. (Pl.Aff. ¶ 9.) Ryan testified during her deposition that she could not remember whether she had checked the successful applicant's references. (Ryan Dep. at 20.) Plaintiff alleges that the successful applicant was twenty-four years old. (Compl. ¶ 35.)

Plaintiff was advised by letter dated August 11, 1994 that she did not get the position. (Pl. Dep. at 81.) On October 14, 1994, plaintiff filed a charge of age discrimination with the New York State Division of Human Rights and with ...

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