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TESSER v. BOARD OF EDUCATION

March 7, 2002

GILDA TESSER, PLAINTIFF,
V.
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.

    MEMORANDUM AND ORDER

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.

I. Background

1. Procedural History

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.

2. The Trial and Verdict

The facts of this case are quite extensive. Many of the facts presented at trial were already developed during pre-trial litigation and discussed in my Memorandum and Order dated January 22, 2001 denying in part and granting in part defendants' motion for summary judgment. Familiarity with that decision is presumed. The following is an abbreviated review of those facts as they are relevant to the instant motion and as they were further developed at trial.

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 she 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.)

II. DISCUSSION

A. Rule 50 Motion for Judgment as a ...


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