she applied for the job at age forty-nine, two years after
receiving her Masters in Education degree with a 4.0 grade point
average. Sgarlata claims that "[a]s soon as the principal saw me,
I felt that she was not interested in pursuing the interview.
Needless to say, I was not hired." (Sgarlata Aff. ¶ 4.)
Another applicant, Mary Martin, claims that she applied for a
job in Clarkstown as a special education teacher in 1995 at the
age of fifty-two. Martin states that she had one year of special
education experience as well as a Master's Degree in special
education. Following an interview with the director of education,
Martin states that she never heard from the district again.
As to the second factor, plaintiff here alleges what might be
construed as isolated incidents. However, plaintiff also claims
that a Clarkstown principal told her, "Your age is the absolute
factor here. They will not hire anyone of your age." (Pl. Dep. at
68.) This allegation could lead a reasonable juror to find that
Clarkstown's repeated rejections of plaintiff were not isolated
incidents, but rather actions that stemmed, at least in part,
from a policy of age discrimination.
The third factor, which focuses on whether the act has a degree
of permanence which should have prompted plaintiff to come
forward to press her claims earlier, could be decided in
plaintiff's favor when the evidence is considered, as it must be,
in the light most favorable to plaintiff. From plaintiffs
testimony, she did not begin to question the District's motives
in failing to hire her for the three positions to which she
applied in 1992 until the following year, after she discovered
that the positions all went to teachers under the age of thirty,
and that two of the three teachers hired were under the age of
twenty-five. (See Pl.Dep. at 57-59.) In August 1993, plaintiff
pressed the issue of her age during her interview for an
eighth-grade English position. When she failed to get that job,
plaintiff interviewed almost immediately for another position as
an English teacher. When she again failed to get the job,
plaintiff discussed her situation with Clarkstown High School
South Principal Bierker, who, plaintiff alleges, told her that
her age was the determinative factor in her failure to get a job.
At this point, plaintiff could have pressed her claim in court.
However, a jury could find that plaintiff's failure to act sooner
was based on optimism, faith in the integrity of the hiring
process, or a strong desire to work for Clarkstown.
In light of the above, we find that Plaintiff has offered
sufficient evidence to raise a material issue of fact as to
whether Clarkstown's failure to hire plaintiff was pursuant to a
III. Plaintiff's ADEA Claim
The ADEA makes it unlawful for employers "to fail or refuse to
hire or to discharge any individual or otherwise discriminate
against any individual . . . because of such individual's age."
29 U.S.C. § 623(a)(1). The ADEA covers the class of employees
over the age of forty. See 29 U.S.C. § 631(a). The requirements
of proof of age discrimination are the same as that for proving
discrimination under Title VII. See Raskin v. Wyatt Co.,
125 F.3d 55, 60 (2d Cir. 1997). The elements of an employment
discrimination claim are "virtually identical" under the New York
Executive Law and Title VII. Lacoparra v. Pergament Home
Centers, Inc., 982 F. Supp. 213, 225 (S.D.N.Y. 1997). Therefore,
our analysis of plaintiff's ADEA claim is equally applicable to
plaintiff's state law claim.
A claim for employment discrimination is governed by the
three-step burden shifting analysis of McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973). Under this analysis, the plaintiff must first establish a
prima facie case of discrimination. If the plaintiff makes out a
prima facie case, a presumption that the employer unlawfully
discriminated against the plaintiff is raised and the burden of
production then shifts to the employer to "articulate a
legitimate, clear, specific and non-discriminatory reason" for
failing to hire the plaintiff. Quaratino, 71 F.3d at 64. If the
employer does so, the presumption of discrimination drops out and
the plaintiff has the burden of proof by a preponderance of the
evidence that the employer's stated reason was merely a pretext
for discrimination. See St. Mary's Honor Center v. Hicks,
509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Plaintiff
must establish "both that the reason was false, and that
discrimination was the real reason." Id.
A. Plaintiff's Prima Facie Case
To establish a prima facie case of age discrimination,
plaintiff must show that: (1) she was within the protected age
group; (2) she was qualified for the job; (3) she suffered from
an adverse employment decision; and (4) the employment decision
occurred under circumstances giving rise to an inference of age
discrimination. See Hollander v. American Cyanamid Co.,
172 F.3d 192, 199 (2d Cir. 1999). The burden to establish a prima
facie case is de minimis. See Chambers v. TRM Copy Ctrs. Corp.,
43 F.3d 29, 37 (2d Cir. 1994).
Here, plaintiff has met her burden of establishing a prima
facie case of age discrimination. First, plaintiff was forty-six
years old the first time she was rejected by Clarkstown and
forty-eight years old when she was not hired for the ESL position
to which she applied in 1994, placing her within the protected
class. Defendant does not dispute that plaintiff was qualified
for the position. Plaintiff was ESL-certified and had one year of
experience teaching ESL. She holds a Master of Arts in teaching
degree and doctoral credits from Fordham University. Plaintiff
also has satisfied the third element, having suffered from an
adverse employment decision, the district's decision not to hire
her. Furthermore, plaintiff has introduced evidence that this
decision occurred under circumstances giving rise to an inference
of discrimination. As discussed above, plaintiff states that one
Clarkstown principal told her that her age was "the absolute
factor" in Clarkstown's decision not to hire her. Plaintiff has
pointed to five separate occasions on which she was denied
employment despite her experience and qualifications and a
younger, less experienced teacher, was hired. Accordingly,
plaintiff has met her burden of establishing a prima facie case.
B. Defendant's Reasons for Failing to Hire Plaintiff
Once a plaintiff has made out a prima facie case of
discrimination, the burden of going forward shifts to the
employer to articulate a legitimate, non-discriminatory reason
for failing to hire the applicant. Quaratino, 71 F.3d at 64.
Defendant states that the decision not to hire plaintiff for the
ESL position in 1994 was "simply because one of the other
candidates was better suited for the position." (Def. Reply
Mem.Supp.Summ.J. at 3.) Defendant states that the successful
was certified in ESL and elementary education; she
had worked previously in a District that provided
good staff development training; she had a `good
knowledge of whole language and some of the kinds of
literacy methods' used by defendant Clarkstown; she
had the `interpersonal skills to be well-received and
accepted by the classroom teachers and would kind of
have the finesse to work successfully with those
teachers;' she was mature and articulate for only
having had one year of ESL experience; she had a
manner and demeanor that was commensurate with a
position necessitating close contact with children
whose first language was not English.
(Id. at 3-4, citing Ryan Dep. at 19-22, 24.)
Defendant states that, in contrast, "plaintiff presented a
demeanor during her
interview that her interviewers did not feel was commensurate
with the requirements of the position." (Def. Reply Mem.Supp.
Summ.J. at 4.) As discussed above, Clarkstown's supervisor of
special programs, Martha Ryan, stated that during plaintiff's
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
(Ryan Dep. at 25.)
Defendant has articulated a legitimate, non-discriminatory
reason for its failure to hire plaintiff. "In the context of an
allegation of a discriminatory refusal to hire, an unsuccessful
performance at a job interview, wherein the applicant fails to
convince the prospective employer that he or she is capable of
handling the responsibilities of the job, is a legitimate,
non-discriminatory reason. . . ." Wechsler v. RD Management
Corp., 861 F. Supp. 1153, 1160 (E.D.N.Y. 1994). Here, defendant's
claim that plaintiff, during her interview, appeared to lack
certain interpersonal skills required for the position, and that
the successful applicant had these skills, is enough to rebut
plaintiff's prima facie case.
C. Evidence of Pretext
Although it is not the role of the courts to second guess an
employer's business judgment exercised in good faith, "plaintiff
must be allowed to show that her employer's asserted reasons for
discharging her were a pretext." Gallo v. Prudential Residential
Servs., Ltd. Partnership, 22 F.3d 1219, 1226 (2d Cir. 1994).
Plaintiff must make this showing by a preponderance of the
evidence. de la Cruz v. New York City Human Resources Admin.
Dep't of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996).
In an employment discrimination case, a plaintiff must show
that there is a material issue of fact as to whether: (1) the
employer's asserted reason for the failure to hire is false or
unworthy of belief; and (2) more likely than not the applicant's
age was the real reason for the employer's decision. See
Bucknell v. Refined Sugars, Inc., 82 F. Supp.2d 151 (S.D.N Y
2000). "Pretext may be demonstrated either by the presentation of
additional evidence showing that the employer's proffered
explanation is unworthy of credence, . . . or by reliance on the
evidence comprising the prima facie case, without more."
Chambers, 43 F.3d at 38 (internal quotations and citations
When viewed in the light most favorable to her, plaintiff's
evidence is sufficient to withstand a motion for summary
judgment. In making this determination, we are mindful of the
Second Circuit's instruction that "[a] trial court must be
cautious about granting summary judgment to an employer when . .
. its intent is at issue." Gallo, 22 F.3d at 1224.
Plaintiff states that after she was notified that the position
went to someone else, she telephoned Ryan to ask for "feedback"
and Ryan told her "that the person that was hired was highly
qualified, highly experienced, and that it was a very tough
choice between the two of us." (Pl.Dep. at 82.) Plaintiff has
offered evidence that the successful applicant had only one year
of teaching experience. Ryan states in her deposition that
"Lenore [Gavigan's] experience in ESL was one year, which was,
you know, close to, if not the same as, [the successful
applicant's]." (Ryan Dep. at 26.) Defendant now states that
plaintiff's experience was not at issue, but rather, her
Plaintiff claims, and defendant does not contest, that each of
the five times she interviewed for a position with Clarkstown,
the position went to a teacher age thirty or
younger. Plaintiff also claims that each time she applied for a
position, she agreed to begin at an entry-level position.
Plaintiff has offered the affidavits of three other women who
claim that they were qualified for the positions to which they
applied, but were not hired because of their age.
In addition, plaintiff claims that a Clarkstown principal told
her that she would not be hired by the district because of her
age. Defendant argues that the principal's statement is
irrelevant because the principal was not a "final
decisionmaker." (Def. Reply Mem.Supp.Summ.J. at 4-5.) However,
Ryan states in her deposition that "once the principal approves
of the candidate . . . they're then brought to [the
superintendent of pupil services], and he does the final
interview; but generally, in practice, he has approved anyone who
has gotten that far." (Ryan Dep. at 9.)
For the reasons stated above, plaintiff has raised a material
issue of fact as to whether's defendant's failure to hire her was
motivated by discriminatory intent. Accordingly, defendant's
motion for summary judgment on grounds plaintiff failed to
demonstrate the requisite showing of pretext is denied.
IV. Kimel Is Inapplicable to the Instant Case
Defendant argues that plaintiff's ADEA claim must be dismissed
on the basis of the Supreme Court's recent decision in Kimel v.
Florida Board of Regents, ___ U.S. ___, 120 S.Ct. 631, 145
L.Ed.2d 522 (2000), which held that the ADEA did not validly
abrogate the states' Eleventh Amendment immunity from suit by
private individuals. The Eleventh Amendment "affirms the
fundamental principle that sovereign immunity limits the grant of
jurisdictional authority contained in Article III of the
constitution." Fay v. South Colonie Cent. Sch. Dist.,
802 F.2d 21 (2d Cir. 1986). This jurisdictional bar operates when the
state is the real party in interest. Id. Ordinarily, the state
is the real party in interest when payment of a judgment would
come from the state treasury. Id.
Defendant claims that Clarkstown, "a public central school
district, created, organized, and governed pursuant to New York
Education Law §§ 1808-1809" is a "state instrumentality" to which
the ADEA, in light of Kimel, does not apply. Defendant's
argument is unavailing.
The Second Circuit has held that a New York central school
district is not immune from suit. Fay, 802 F.2d at 27. See
also Fabrizio & Martin, Inc. v. Board of Educ. Cent. Sch. Dist.
No. 2 of the Towns of Bedford et al., 290 F. Supp. 945 (S.D.N Y
1968). There, the Second Circuit explicitly rejected the argument
defendant now puts forth, stating that "being a steward of state
education policy does not make the school district an alter ego
of the state." Id. The Supreme Court also has recognized that
school districts which have the power to issue bonds and to levy
taxes may be more like a political subdivision such as a county
or city than a state, and thus not protected by Eleventh
Amendment immunity from suit despite receiving a significant
amount of money from the state. Mt. Healthy City Sch. Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274, 280-81, 97 S.Ct. 568, 572, 50
L.Ed.2d 471 (1977). Accordingly, Clarkstown does not share in the
state's Eleventh Amendment immunity and the Supreme Court's
holding in Kimel is inapplicable to the instant case.
For the reasons stated above, defendant's motion for summary
judgment is denied.
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