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TESSER v. BOARD OF EDUCATION
March 7, 2002
GILDA TESSER, PLAINTIFF,
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK; BOARD OF EDUCATION OF COMMUNITY SCHOOL DISTRICT NO. 21 OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK; SHELDON PLOTNICK, INDIVIDUALLY AND AS PRESIDENT OF THE BOARD OF EDUCATION OF COMMUNITY SCHOOL DISTRICT NO. 21, DONALD WEBER, INDIVIDUALLY AND AS SUPERINTENDENT OF COMMUNITY SCHOOL DISTRICT NO. 21; AND MICHAEL MILLER, INDIVIDUALLY AND AS PRINCIPAL OF PUBLIC SCHOOL 128, DEFENDANTS.
The opinion of the court was delivered by: Garaufis, United States District Judge.
Now before this court is Plaintiffs post-trial motion for judgment as a
matter of law pursuant to FED R. Civ. P. 50, or alternatively, a new
trial pursuant to FED R. Civ. P. 59. For the reasons discussed below,
Plaintiffs motion is denied.
Plaintiff Gilda Tesser brought this civil rights action against her
former employers ("defendants") by complaint filed November 17, 1997. The
complaint included various claims, including religious discrimination
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. ("Title VII") and the New York City Human Rights Law, Administrative
Code §§ 8-101 et seq., and retaliation in her terms of employment for
having complained about the perceived discrimination. After years of
pre-trial discovery and motion practice, the case went to trial before a
jury on July 9, 2001. The trial lasted over two weeks, ending on July
25, 2001, when the jury entered a verdict for defendants on all
counts.*fn1 The instant motion for a judgment notwithstanding the
verdict pursuant to FED R. Civ. P. 50, or in the alternative, a new trial
pursuant to Rule 59 followed.
At the time of the allegedly discriminatory actions, Plaintiff was an
Assistant Principal in Charge of P.S. 177 in Community School District
21. Defendant Superintendent Weber appointed Plaintiff to this position.
At the time, he believed Plaintiff would eventually be promoted to
principal when the position became available and intended to support her
candidacy for this position. (Tr. 524-25.)
In 1991, Plaintiff applied for the position of principal at P.S. 177.
"In effect at that time was an internal Chancellor's C-30 Regulation
requiring community school boards to follow a three-step process in
selecting supervisory personnel. Level I involved the establishment of a
screening committee consisting of six to ten parents, two teachers, the
superintendent, and community school board members. The committee
determined the selection criteria and interviewed at least ten
candidates. Only the parents and teachers were allowed to vote for at
least five of those candidates, who were then recommended to the
community superintendent. Level II required the superintendent to
evaluate the recommended candidates and recommend two to the community
school board. Level III required the community school board either to
select one for appointment or to request that the superintendent or
committee consider other candidates from the original Level I pool."
(Order of January 22, 2001 at 2-3 see also Tr. 330-331.)
Plaintiff testified that prior to, and during her candidacy, she
learned that the parents of P.S. 177 were opposed to her appointment
because she was Jewish. (Tr. 259-60.) Plaintiff informed Weber of the
anti-Semitic animus she believed was being expressed by the parents.
Plaintiff and Weber had several conversations regarding Plaintiffs
concerns. Weber testified that over the course of these conversations he
began to believe Plaintiff was acting irrationally, that she would be
unable to work effectively with the school community, and that her
perception of anti-Semitism was unfounded. In explaining why he thought
Plaintiff was "unraveling" or acting "irrationally," he testified that
Ms. Tesser yelled at him, that he thought she was accusing the parents of
anti-Semitism rather than admitting that they simply did not like her,
and that she stated she was "going to get" the parents on the selection
committee. (Tr. 554-55, 619-622, 709.)
Despite the alleged religious discrimination directed at Plaintiff, the
parents did not eliminate Plaintiff from consideration and she
successfully moved on to the second level of consideration. Moreover,
Plaintiffs own witness, a member of the Level I selection committee,
testified that no parent indicated a desire to prevent Ms. Tesser's
selection because she was Jewish. Plaintiffs witness did testify,
however, that the parents thought Ms. Tesser was being given preferential
treatment by Weber because she was Jewish. (Tr. 1275-77.) This witness
further testified that the parents indicated their preference for another
candidate, Mr. Ianniello. The witness thought it was unfair that the
parents were attempting to hamper Ms. Tesser's progress to Level II
because they did not like Ms. Tesser personally and because they
preferred Mr. Ianniello for his popularity rather than for his
qualifications. (Tr. 1288-90.)
After passing Level I, Plaintiff hired an attorney because of her
concern about religious discrimination affecting the progress of her
candidacy. On January 16, 1992, Plaintiff tape recorded a conversation
had with Weber and Plotnick*fn2 in which her decision to hire an
attorney was discussed. (Ex. 399.) Weber made it known to Tesser that he
did not agree with her decision to hire an attorney. (Id.) He was later
admonished for these statements in a letter from the Chancellor. (Ex.
33.) On June 24, 1992, Weber submitted his two choices for principal of
P.S. 177 to the school board. Plaintiff was not one of the two
finalists. (Ex. 113.) Therefore, after the completion of Level II,
Plaintiff was no longer under consideration for the position of
principal. Weber testified that although he did not think it was necessary
for Plaintiff to hire an attorney, this was not the basis for his
decision not to recommend her to Level Ill. (Tr. 641.) He further
testified that he knew that one finalist, Kathleen Lavin, was not
Jewish; however he believed the other finalist, Arlynn Brody, was
Jewish. (Tr. 657-58.) In sum, Weber testified that his decision not to
recommend Plaintiff was not based on her religion or in retaliation for
hiring an attorney, but was the result of his concern that she could not
handle the responsibilities of a principal at P.S. 177.
By letter dated June 30, 1992, Weber informed Plaintiff that instead of
remaining at P.S. 177 she had been reassigned to P.S. 128, another school
within District 21 in which she had worked prior to coming to P.S. 177.
(Tr. 664-65.) Her assignment was to begin in August 1992. On July 7,
1992, she filed a complaint with the Board of Education of the City of
New York ("BOE") alleging discrimination based on her religion in the
C-30 selection process. Thus, at the time Plaintiff was beginning her
work at P.S. 128, an investigation was ongoing with respect to her
complaint and the selection of Lavin as principal at P.S. 177. (Tr.
703-04.) The Office of Equal Opportunity concluded that the decision not
to select Plaintiff was not the result of religious discrimination, and
the selection of Lavin was finalized. (Ex. 17; Tr. 704.)
During the 1992 school year at P.S. 128, various employment-related
actions were taken with respect to Plaintiff, which she alleged were
discriminatory. These included a change in office space, change in
duties, and a refusal by Principal Miller to allow her to see and revise
the faculty notes for the upcoming school year. (Tr. 155-158, 1005-1033.)
Plaintiff also testified that within her first few weeks back at P.S.
128, Miller told her that she would not be allowed to remain there and
threatened to have her thrown out of the building if she did not leave.
(Tr. 159-60.) Plaintiff claimed to have suffered tremendous emotional
stress as a result of this incident, and she was admitted to psychiatric
care for treatment. She filed a "line of duty" injury claim, alleging
that Mr. Miller's treatment had directly led to her need for therapy and
inability to work for some 25 days. (Tr. 164-68.)
Plaintiff subsequently filed a claim of religious discrimination and
retaliation with the New York Human Rights Commission in June 1993 (Ex.
322), requested a temporary transfer to another district in August of
1993 (Ex. 350), and applied for, and was granted whistle-blower status on
September 21, 1993 by the Special Commissioner of Investigation
("SCOI"). (Ex. 390.) Because the BOE had not granted Plaintiff her
requested transfer outside of District 21 (Tr. 719-20; Exs. 350-52), on
her own initiative she obtained employment in the Plainview-Old Bethpage
Central School District ("Plainview"). BOE granted her a one year leave
to take this position. (Tr. 186-87, 194-95.) She also was granted a leave
of absence for child-care immediately following her one-year leave to
work in Plainview. (Tr. 196.)
When it was discovered that she had been working elsewhere while on
child-care leave, in violation of the leave policy, she was ordered to
return to work in District 21 or risk being reported as an unauthorized
absentee. (Tr. 199-200, 948-51.) When Plaintiff did not return to
District 21 for work, she was deemed resigned, a less severe status than
unauthorized absentee because it allowed her the option of withdrawing
her resignation. (Tr. 950-52.)
At trial, the above facts, as well as those going to damages, were
developed in greater detail through the submission of numerous
documents, letters, tape recordings, expert opinion, witness testimony,
and records from the administrative investigations and proceedings.
Included among the testifying witnesses were Plaintiff, Defendant Weber,
and Defendant Miller. As in many discrimination cases, ultimately the
case turned in significant degree on the respective credibility of
Plaintiff and defendants and their explanations for the various events
and employment actions. In this case, the jury did not believe that
Plaintiffs version was more probable than not, and it returned a verdict
in favor of the defendants. The jury unanimously found that Plaintiff did
not prove that the BOE, Community School District 21, Donald Weber, or
Michael Miller "discriminated against her based on her religion," (Tr.
1375), and it found that Plaintiff had not proven that the BOE, Community
School District 21, Donald Weber, or Michael Miller "retaliated against
her because of her complaining of religious discrimination or because she
hired an attorney." (Tr. 1376.)
A. Rule 50 Motion for Judgment as a ...