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Carmellino v. Dist. 20 of the New York City Dep't of Education

September 6, 2006

MARIAN CARMELLINO, JOHN CASCIATO, JILL GOLDBERG, ROBIN KESSLER, MARIE MAGALDI, DEBORA MAUSKOPF, SARA LEE L. MELENDI, C.H.E., EILEEN MILLARES, ARTHUR MILLER, ELLEN O'LEARY, JOSEPHINE PASCUCCI, BARBARA POCINO, VICTOR SANDS, DEBORAH SCHWARTZ, MARSHA SILVERSTEIN, ALICE STERNBERG, ELIZABETH DE MAIRO STINGO, KATHERINE WEBER-WOLF, AND MARY YIALOURIS PAPASMIRIS, PLAINTIFFS,
v.
DISTRICT 20 OF THE NEW YORK CITY DEPARTMENT OF EDUCATION, THE NEW YORK CITY DEPARTMENT OF EDUCATION, VINCENT GRIPPO, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF DISTRICT 20 OF THE NEW YORK CITY DEPARTMENT OF EDUCATION, JOANN ASCUITTO, IN HER OFFICIAL CAPACITY AS THE PRINCIPAL OF PUBLIC SCHOOL 180K, HOWARD MEDNICK, PRINCIPAL OF PUBLIC SCHOOL 180K, LOUISE VERDEMARE, IN HER OFFICIAL CAPACITY AS THE PRINCIPAL OF PUBLIC SCHOOL 112K, KATHLEEN LE DONNI, IN HER OFFICIAL CAPACITY AS THE PRINCIPAL OF PUBLIC SCHOOL 247K, MARGARET DE GAETA, IN HER OFFICIAL CAPACITY AS THE PRINCIPAL OF PUBLIC SCHOOL 176K, ELIZABETH CULKIN, IN HER OFFICIAL CAPACITY AS THE ASSISTANT PRINCIPAL AND ACTING INTERIM PRINCIPAL OF PUBLIC SCHOOL 176K, PATRICK MARANO, IN HER OFFICIAL CAPACITY AS THE PRINCIPAL OF PUBLIC SCHOOL 163K, JO N. ROSSICONE, IN HER INDIVIDUAL CAPACITY AS THE PRINCIPAL OF INTERMEDIATE SCHOOL 220K, MARIE DI BELLA, IN HER OFFICIAL CAPACITY AS THE PRINCIPAL OF PUBLIC SCHOOL 104K, SYLVIA LA CERRA, IN HER OFFICIAL CAPACITY AS THEPRINCIPAL OF PUBLIC SCHOOL 200K, THERESA DOVI, IN HER OFFICIAL CAPACITY AS THE PRINCIPAL OF ELEMENTARY SCHOOL 102K, AND DIANE PICUCCI, IN HER OFFICIAL CAPACITY AS THE PRINCIPAL OF PUBLIC SCHOOL 48K, DEFENDANTS.



The opinion of the court was delivered by: P. Kevin Castel, Usdj

MEMORANDUM AND ORDER

Table of Contents

Table of Contents

I. Summary Judgment Standard..... 2

II. Legal Standards: Discrimination and Retaliation Claims...... 4

A. Age Discrimination Under the ADEA...... 4

1. First Prong: Within Protected Age Group..... 5

2. Second Prong: Qualified for Position...... 5

3. Third Prong: Adverse Employment Action..... 5

4. Fourth Prong: Inference of Discrimination.....8

5. Legitimate, Nondiscriminatory Reasons...... 10

6. Pretext..... 10

7. Statute of Limitations and the Continuing Violation Doctrine......11

B. Retaliation for Exercising ADEA-Based Rights......13

1. Protected Activity..... 14

2. Materially Adverse Action......14

3. Causal Connection.....16

III. Individual Claims.....17

A. Sara Lee Melendi......17

1. Discrimination...... 20

2. Retaliation...... 21

B. Robin Kessler......23

1. Discrimination..... 26

2. Retaliation...... 30

C. Eileen Millares......31

1. Discrimination......36

2. Retaliation.....39

D. Marsha Silverstein..... 40

1. Discrimination..... 43

2. Retaliation.....49

E. John Casciato..... 51

1. Discrimination.....52

2. Retaliation...... 55

F. Elizabeth DeMairo-Stingo and Mary Yialouris-Papasmiras...... 56

1. Common Facts..... 56

2. Elizabeth DeMairo-Stingo's Claims..... 60

a. Discrimination..... 60

b. Retaliation.....63

3. Mary Yialouris-Papasmiras' Claims..... 64

a. Discrimination..... 64

b. Retaliation..... 65

G. Marie Magaldi..... 67

1. Discrimination..... 67

2. Retaliation..... 69

H. Barbara Pocino..... 70

1. Discrimination...... 73

2. Retaliation..... 77

I. Katherine Weber-Wolf..... 79

1. Discrimination..... 80

2. Retaliation..... 82

J. Ellen O'Leary..... 83

1. Discrimination..... 84

b. Retaliation..... 86

K. Debora Mauskopf..... 87

1. Discrimination..... 89

2. Retaliation..... 90

L. Marian Carmellino...... 91

1. Discrimination...... 91

2. Retaliation...... 94

IV. False Arrest and Abuse of Process Claims of Victor Sands.....95

A. Facts ...... 95

B. Discussion..... 97

V. Conclusion..... 100

The 14 remaining plaintiffs in this action are former or current teachers employed by the New York City Department of Education ("DOE"), all but one of whom complain of age discrimination in the workplace. Although each plaintiff's factual allegations differ, the claims center upon the conduct of the Superintendent of District 20 of defendant DOE, Vincent Grippo, or a school principal within District 20. Plaintiffs assert claims of age discrimination and unlawful retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq. One plaintiff, Victor Sands, does not assert claims of age discrimination or ADEA retaliation but asserts claims of false arrest and abuse of process.

Plaintiffs filed their complaint on August 7, 2003. (Docket No. 1) The case was originally assigned to the Honorable Harold Baer, Jr., U.S.D.J., and reassigned to me on December 4, 2003. (Docket Nos. 2, 12) On April 6, 2004, I issued an order granting in part and denying in part defendants' motion for summary judgment. See Carmellino v. District 20 of the N.Y. City Dep't of Educ., 2004 WL 736988 (S.D.N.Y. Apr. 6, 2004).*fn1 In the April 6, 2004 Memorandum and Order, I granted summary judgment to defendants as to the claims of five plaintiffs: Jill Goldberg, Arthur Miller, Josephine Pascucci, Deborah Schwartz and Alice Sternberg. Id. Familiarity with this opinion is assumed.

Discovery is closed, and defendants have moved for summary judgment on all of the remaining claims. On June 30, 2006, I issued an Order seeking clarification as to whether defendants are moving for summary judgment on the ground that no reasonable jury could find the defendants' asserted nondiscriminatory reasons for the employer conduct at issue to be pretextual. (Docket No. 77) In addition, with regard to plaintiff Melendi's retaliation claim, the Order directed the defendants to address whether they were moving for summary judgment on the ground that no reasonable jury could find that there existed a causal connection between Melendi's protected activity and the adverse employer conduct. (Id.) The Order also directed the parties to address the Supreme Court's recent decision in Burlington N. & Santa Fe Ry. v. White, 126 S.Ct. 2405 (2006). (Id.) Finally, I gave the plaintiffs an opportunity to make a further submission of evidence of the type contemplated by Rule 56(e), Fed. R. Civ. P.

In compliance with the June 30, 2006 Order, defendants submitted letters on July 14, 2006 ("Def. 7/14/06 Supp. Mem.") and July 21, 2006 ("Def. 7/21/06 Supp. Mem."). (Docket No. 79) Plaintiffs filed two memoranda with attached exhibits on July 17, 2006 ("Pl. 7/17/06 Supp. Mem.") and July 24, 2006 ("Pl. 7/24/06 Supp. Mem."). (Docket Nos. 80-81)

For the reasons explained below, defendants' motion is denied as to the claims of plaintiff Melendi and otherwise granted. In this Memorandum and Order, I will first set forth the applicable legal standards and then analyze each plaintiff's claims in the context of those standards insofar as a position is asserted in defendants' motion.

I. Summary Judgment Standard

Summary judgment "shall be rendered forthwith 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it "might affect the outcome of the suit under the governing law . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).

When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed. R. Civ. P. 56(e). In order to defeat summary judgment, the non-movant carries only "a limited burden of production," but "must 'demonstrate more than some metaphysical doubt as to the material facts,' and come forward with 'specific facts showing that there is a genuine issue for trial.'" Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Aslandis v. U.S. Lines, Inc., 477 U.S. 242, 252 (1986)).

An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quotations and citations omitted); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. Fed. R. Civ. P. 56(c). In the absence of any disputed material fact, summary judgment is appropriate. Id. Mere "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). See also Anderson, 477 U.S. at 249-50 (noting that summary judgment should be granted if the evidence is "merely colorable" or "not significantly probative").

Although discrimination and retaliation claims usually involve issues of intent, which are often ill-suited to resolution at the summary judgment stage, the Second Circuit has gone "out of [its] way to remind district courts that the 'impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994)), cert. denied, 540 U.S. 811 (2003). See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) ("[T]rial courts should not treat discrimination differently from other ultimate questions of fact." (internal quotations omitted)).

II. Legal Standards: Discrimination and Retaliation Claims

I will first set forth certain background legal principles applicable to plaintiffs' age discrimination and retaliation claims. Then, I will analyze plaintiffs' individual claims in the context of defendants' motion.

A. Age Discrimination Under the ADEA

The Second Circuit recently restated its approach to ADEA discrimination claims in the context of summary judgment:

To withstand a motion for summary judgment, a discrimination plaintiff must withstand the three-part burden-shifting laid out by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 1973). In a nutshell, a plaintiff first bears the minimal burden of setting out a prima facie discrimination case, and is then aided by a presumption of discrimination unless the defendant proffers a legitimate, nondiscriminatory reason for the adverse employment action, in which event, the presumption evaporates and the plaintiff must prove that the employer's proffered reason was a pretext for discrimination.

McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 (2d Cir. 2006) (internal citations and quotations omitted). A prima facie case of discrimination requires a plaintiff to show that: "1) he was within the protected age group; 2) he was qualified for the position; 3) he was subject to an adverse employment action; and 4) the adverse action occurred under circumstances giving rise to an inference of discrimination." Terry v. Ashcroft, 336 F.3d 128, 137-138 (2d Cir. 2003) (internal quotation omitted). If the defendant comes forward with evidence of a legitimate, nondiscriminatory reason for the adverse employment action at issue, a plaintiff will not overcome a motion for summary judgment unless his or her "admissible evidence . . . show[s] circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Id. at 138.

1. First Prong: Within Protected Age Group

The first prong of a prima facie case of discrimination under ADEA requires a plaintiff to demonstrate that he or she is in the protected age group. 29 U.S.C. § 631(a) (limiting the ADEA to individuals over the age of 40). Defendants do not dispute that each plaintiff claiming discrimination is over 40.

2. Second Prong: Qualified for Position

The second prong of a prima facie case of discrimination under the ADEA requires that the employee be qualified for the position at issue. Terry, 336 F.3d at 137-138. ADEA protects the rights of both employees and prospective employees, 29 U.S.C. § 623(a)(1), and the plaintiff need only show that he or she was minimally qualified for the position. Owens v. N.Y. City Hous. Auth., 934 F.2d 405, 409 (2d Cir. 1991), cert. denied, 502 U.S. 964 (1991).

3. Third Prong: Adverse Employment Action

As to the third prong, a plaintiff must demonstrate that he or she was subjected to adverse employment action, which, for purposes of a discrimination claim, is a "materially adverse change in the terms and conditions of employment." Fairbrother v. Morrison, 412 F.3d 39, 56 (2d Cir. 2005), abrogated on other grounds, Burlington Northern, 126 S.Ct. at 2405 (internal quotation omitted). This change must be one that is "more disruptive than a mere inconvenience or an alteration of job responsibilities." Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation omitted). "Examples of materially adverse changes include 'termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.'" Fairbrother, 412 F.3d at 56 (quoting Galabya, 202 F.3d at 640). A decision not to promote an employee to an open and available position for which the person has applied may constitute an adverse employment action. See Terry, 336 F.3d at 139. However, a negative performance evaluation -- without more -- does not ordinarily constitute an adverse employment action for purposes of a discrimination claim. See Weeks v. N.Y. State Div. of Parole, 273 F.3d 76, 86 (2d Cir. 2001), abrogated on other grounds, Nat'l R.R. Passengers Corp. v. Morgan, 536 U.S. 101 (2002) ("It hardly needs saying that criticism of an employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action.").

Where a plaintiff claims that he or she was constructively discharged, "the actionable conduct is not a discrete, identifiable act on the part of the defendant." Flaherty v. Metromail Corp., 235 F.3d 133, 138 (2d Cir. 2000). "An employee is constructively discharged when his employer, rather than discharging him directly, intentionally creates a work atmosphere so intolerable that he is forced to quit involuntarily." Terry, 336 F.3d at 151-152. "[W]orking conditions are intolerable when, viewed as a whole, they are so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Id. at 152 (internal quotation omitted). See Pa. State Police v. Suders, 542 U.S. 129, 137 (2004) (noting that the question of whether working conditions are intolerable is an objective inquiry).

These conditions often involve "pervasive, unabated harassment" by one's supervisors. See, e.g., Terry, 336 F.3d at 152 (reversing district court's grant of summary judgment, in part, due to such comments, including "your days are numbered," plaintiff's "life's over with" and "you're going to be brought up on more charges"). However, a constructive discharge claim does not arise simply because an employee is dissatisfied with work assignments, feels that his or her work has been unfairly criticized or was subjected to unpleasant working conditions. See Stetson v. Nynex Serv. Co., 995 F.2d 355, 361 (2d Cir. 1993); see also Martin v. Citibank, N.A., 762 F.2d 212, 221 (2d Cir. 1985) (affirming grant of motion for directed verdict on employee's constructive discharge claim under Title VII, despite evidence of supervisor's loud and unnecessary announcement to co-workers that the plaintiff had been polygraphed regarding missing money at another branch of the bank and unfounded complaints about the plaintiff's attitude). Several courts have held that an employee is not constructively discharged when he or she resigns rather than respond to disciplinary charges. See, e.g., Silverman v. New York, 216 F.Supp.2d 108, 115-16 (E.D.N.Y. 2002), aff'd, 64 Fed. Appx. 799 (2d Cir. 2003); Stembridge v. City of N.Y., 88 F.Supp.2d 276, 284-85 (S.D.N.Y. 2000), aff'd, 2000 U.S. App. LEXIS 38697 (2d Cir. Dec. 18, 2000).

In their July 24, 2006 supplemental memorandum opposing defendants' motion, plaintiffs appear to argue that Burlington N. & Santa Fe Ry. v. White, 126 S.Ct. 2405 (2006) (discussed below at I.B.2) altered not only the prima facie case of retaliation under Title VII, but the prima facie case of discrimination as well. Specifically, plaintiffs argue that Burlington Northern broadened the definition of an "adverse employment action" for purposes of a Title VII or ADEA discrimination claim. See, e.g., Pl. 7/21/06 Supp. Mem. at 4-7 (applying Burlington Northern to plaintiff Magaldi's allegations of age discrimination). However, the Supreme Court explicitly restricted its holding to the retaliation provision of Title VII, which contains identical relevant language to the retaliation provision in the ADEA. See Burlington Northern, 126 S.Ct. at 2410-14. Specifically, the Court stated:

. . . [T]he anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment. . . . [W]e do not accept the . . . view that it is "anomalous" to read the statute to provide broader protection for victims of retaliation than for those whom Title VII primarily seeks to protect, namely, victims of race-based, ethnic-based, religion-based, or gender-based discrimination. . . . Title VII's substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.

Id. at 2412-14. See also Kessler, 2006 WL 2424705, at *8-*9 (discussing such distinctions). In much of their supplemental briefing, plaintiffs erroneously apply Burlington Northern to both discrimination and retaliation claims. The rationale of Burlington Northern applies to the ADEA retaliation claims, not the discrimination claims.

4. Fourth Prong: Inference of Discrimination

The last prong of a prima facie case of age discrimination is that the plaintiff suffered an adverse employment action under "circumstances giving rise to an inference of discrimination." Terry, 336 F.3d at 138. "Direct evidence of discrimination is not necessary because proof is seldom available with respect to an employer's mental processes. Instead, plaintiffs in discrimination suits often must rely on the cumulative weight of circumstantial evidence . . . ." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir. 2000), cert. denied, 530 U.S. 1261 (2000) (internal citations omitted). For example, the Supreme Court has held that the fact that a plaintiff in an age discrimination case was replaced by someone "substantially younger" is sufficient to satisfy this prong. O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996). In the analogous context of a prima facie case of discrimination under Title VII, the Second Circuit has provided a non-exclusive list of circumstances from which a reasonable jury could infer discriminatory motive:

Circumstances that give rise to an inference of discriminatory motive include actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus, preferential treatment given to employees outside the protected class, and, in a corporate downsizing, the systematic transfer of a discharged employee's duties to other employees, or a pattern of recommending the plaintiff for positions for which he or she is not qualified and failure to surface plaintiff's name for positions for which he or she is well-qualified. A plaintiff might also rely upon the fact that the defendant, following plaintiff's termination, continued to seek applicants to fill the position, or, more generally, upon the timing or sequence of events leading to the plaintiff's termination.

Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996) (citations omitted). If a plaintiff asserts a claim of discrimination based upon a theory of constructive discharge, the plaintiff must come forward with evidence that the discharge "occurred in circumstances giving rise to an inference of discrimination on the basis of her membership in [a protected] class." Id.

Relevant evidence for this prong includes an "employer's criticism of the plaintiff's performance in ethnically degrading terms . . . or . . . invidious comments about others in the employee's protected group." Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d 456, 468 (2d Cir. 2001), cert. denied, 534 U.S. 993 (2001) (citations omitted). However, a court may not -- without more -- impute the bias of one supervisor to a different supervisor who was actually responsible for the adverse employment action. See McLee v. Chrysler Corp., 109 F.3d 130, 137 (2d Cir. 1997) (affirming summary judgment in favor of the employer on the ground that plaintiff had failed to come forward with evidence to satisfy the fourth prong of a prima facie case of discrimination). Moreover, courts have generally held that a reasonable jury cannot infer discrimination merely from "isolated and ambiguous" statements of an employer. See, e.g., Pasha v. William M. Mercer Consulting, Inc., 2004 WL 188077, *5 (S.D.N.Y. Feb. 2, 2004), aff'd, 135 Fed. Appx. 489 (2d Cir. 2005), cert. denied, 126 S.Ct. 1148 (2006); Douglas v. Dist. Council 37 Mun. Emples. Educ. Fund Trust, 207 F.Supp.2d 282, 291 (S.D.N.Y. 2002).

5. Legitimate, Nondiscriminatory Reasons

"[O]nce a plaintiff has established a prima facie case [of discrimination under the ADEA], the burden shifts to the defendant, which is required to offer a legitimate, non-discriminatory rationale for its actions." Terry, 336 F.3d at 138 (citing Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000)). The Supreme Court has emphasized that the evidence produced by the defendant need not be persuasive in order to rebut the legal presumption of discrimination raised by the plaintiff's prima facie case. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) ("By producing evidence (whether ultimately persuasive or not) of nondiscriminatory reasons, petitioners sustained their burden of production, and thus placed themselves in a better position than if they had remained silent."). In addition, the Second Circuit has instructed that the legitimacy of an employer's rationale for the adverse employment action at issue does not depend on the reliability of the evidence supporting that rationale. See McPherson, 457 F.3d at 216 ("In a discrimination case . . . , we are decidedly not interested in the truth of the allegations against plaintiff. We are interested in what motivated the employer [to engage in the adverse employment action]; the factual validity of the underlying imputation against the employee is not at issue." (emphasis in original)). "'[T]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" St. Mary's Honor Ctr., 509 U.S. at 507 (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 460 U.S. 248, 253 (1981)).

6. Pretext

"If the employer articulates a non-discriminatory reason for its employment decision, the presumption of discrimination raised by the prima facie case 'simply drops out of the picture.'" Carlton, 202 F.3d at 134-135 (quoting St. Mary's Honor Ctr., 509 U.S. at 510-11). "'[T]o defeat summary judgment . . . the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination.'" Terry, 336 F.3d at 138 (quoting Stern, 131 F.3d at 312).

Such evidence may include the statements of a person involved in the adverse employment action at issue. See, e.g., Reeves, 530 U.S. at 151 (including, as permissible evidence of pretext, supervisor's comments to employee that employee "was so old [he] must have come over on the Mayflower" and that he "was too damn old to do [his] job"). However, "stray remarks, even if made by a decision maker, do not constitute sufficient evidence [to support] a case of employment discrimination." Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998) (citing Woroski v. Nashua Corp., 31 F.3d 105, 109-10 (2d Cir. 1994)). When such remarks are accompanied by "other indicia of discrimination," they can no longer be considered "stray" and thus may allow a reasonable jury to conclude that the employer's nondiscriminatory reasons are pretextual. Id. On a motion for summary judgment on an ADEA claim, the court must examine "the entire record to determine whether the plaintiff could satisfy his ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff." Schnabel, 232 F.3d at 90 (internal quotation omitted).

7. Statute of Limitations and the Continuing Violation Doctrine

As I noted in my earlier opinion, Carmellino, 2004 WL 736988, at *11, the ADEA requires that a plaintiff asserting claims under the statute must first file a charge with the Equal Employment Opportunity Commission ("EEOC"). 29 U.S.C. § 626(d). Under this statutory scheme, a plaintiff in New York must file the EEOC charge within 300 days of the alleged discriminatory incident. See Holowecki v. Fed. Express Corp., 440 F.3d 558, 562 & n.1 (2d Cir. 2006) (noting that the 300-day, instead of the alternative 60-day, limit applies because New York maintains an agency for remedying age discrimination claims and thus is a so-called "deferral state"). In the context of Title VII, the Supreme Court has instructed that time limits for federal discrimination claims "are not to be disregarded by courts out of a vague sympathy for particular litigants." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984).

The Supreme Court considered the application of the continuing violation doctrine to Title VII claims in Morgan, 536 U.S. at 113. For the doctrine to apply, separate incidents must be part of one unlawful employment practice, such as the maintenance of a hostile work environment. Id. at 114, 117. Any acts that occur within the 300-day period preceding the plaintiff's filing of her EEOC charge will implicate related acts otherwise outside that period. Id. at 117-18.

"To invoke the doctrine, a plaintiff must show either (1) 'specific ongoing discriminatory policies or practices,' or (2) 'specific and related instances of discrimination [that] are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice.'" Weeks, 273 F.3d at 82 (quoting Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998)). See also Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert. denied, 511 U.S. 1052 (1994) ("Multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation."). Although the Supreme Court has not specified what practices other than the creation of a hostile work environment may constitute a continuing violation, it noted in Morgan that "termination, failure to promote, denial of transfer, [and] refusal to hire" were discrete acts not covered by the doctrine. 536 U.S. at 114. See also Marinelli v. Chao, 222 F.Supp.2d 402, 413 (S.D.N.Y. 2002) (categorizing a "job transfer or discontinuance of a particular job assignment" as a discrete act to which the doctrine does not apply). "[A] continuing violation cannot be established merely because the claimant continues to feel the effects of a time-barred discriminatory act. Nor can an otherwise barred claim be rendered timely by the mere continuation of the claimant's employment." Harris v. City of N.Y., 186 F.3d 243, 250 (2d Cir. 1999) (rejecting such arguments in the context of discrimination claims brought under the Americans with Disabilities Act ("ADA"), the Rehabilitation Act and the Fourteenth Amendment).

A continuing violation must be "clearly asserted both in the EEOC filing and in the complaint." Miller v. Int'l Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir. 1985), cert. denied, 474 U.S. 851 (1985). "As a general matter, the continuing violation doctrine 'is heavily disfavored in the Second Circuit' and courts have been 'loath' to apply it absent a showing of 'compelling circumstances.'" Trinidad v. N.Y. City Dep't of Corr., 423 F.Supp.2d 151, 165 n.11 (S.D.N.Y. 2006) (collecting cases). In all events, facts occurring outside the limitations period may be relevant as "background evidence" to claims arising within the limitations period. See Morgan, 536 U.S. at 101, 113. See also Jute v. Hamilton Sunstrand Corp., 420 F.3d 166, 176-77 (2d Cir. 2005) ("[R]elevant background evidence, such as statements by a decisionmaker or earlier decisions typifying the retaliation involved, may be considered to assess liability on the timely alleged act.").

B. Retaliation for Exercising ADEA-Based Rights

All plaintiffs except, plaintiff Sands, assert claims of retaliation for their alleged exercise of rights protected by the ADEA. (Compl. ¶¶ 473-74) The ADEA prohibits an employer from retaliating against an employee for the mere exercise of such rights:

It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment . . . because such individual . . . has opposed any practice made unlawful by this section, or because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this Act. 29 U.S.C. § 623(d).

The Second Circuit applies the McDonnell Douglas burden-shifting framework to claims of retaliation for the alleged exercise of ADEA-protected rights. Terry, 336 F.3d at 141.

Under this framework, a prima facie case of retaliation requires the plaintiff "to show '[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action.'" Id. (quoting Quinn, 159 F.3d at 769). "[T]he burden of proof that must be met to establish a prima facie case is minimal." Schnabel, 232 F.3d at 87 (internal quotation omitted).

As with discrimination claims brought under the ADEA, an employer may rebut a prima facie case of retaliation based upon the exercise of ADEA-protected rights with evidence of a "legitimate, nondiscriminatory business reason" for its conduct. Id. If the employer offers such evidence, the employee has the burden of showing that such a rationale is pretextual and that his or her age was the real reason for the adverse employment action. Id.

1. Protected Activity

As to the first prong of a prima facie case, the plaintiff must show that he or she engaged in protected activity. One way in which an employee may engage in protected activity is to file a charge with the EEOC under the ADEA. 29 U.S.C. § 623(d) (prohibiting discrimination because an employee "has made a charge . . . under this Act"). Once an employee has filed a charge with the EEOC under the ADEA, statute requires the EEOC to "promptly notify all persons named in such charge as prospective defendants in the action . . . ." 29 U.S.C. § 626(d). All plaintiffs in this action asserting retaliation claims filed charges with the EEOC.

2. Materially Adverse Action

As part of the prima facie case, a plaintiff asserting a claim of retaliation under the ADEA must come forward with evidence of "an employment action disadvantaging the plaintiff." Terry, 336 F.3d at 141. The Supreme Court's recent ruling in Burlington Northern, 126 S.Ct. at 2405, construes the employer action requirement in the context of a retaliation claim. See Kessler v. Westchester County Dep't of Soc. Servs., 2006 WL 2424705, *8-*11 (2d Cir. Aug. 23, 2006). Although Burlington Northern only addressed the construction of the Title VII retaliation provision, the standards used in the Second Circuit to analyze claims under that provision apply equally to those under the ADEA retaliation provision. Id. at *8; Terry, 336 F.3d at 141.

In Burlington Northern, the Supreme Court resolved a split among the circuits regarding what kind of employer conduct is required to establish a prima facie case of retaliation under Title VII. 126 S.Ct. at 2410. Previously, several circuits required a Title VII plaintiff to show that he or she suffered an "adverse employment action," which the Second Circuit defined as a "materially adverse change in the terms and conditions of employment." Id. (collecting cases). See Sanders, 361 F.3d at 756 (requiring evidence of an "adverse employment action" to support a retaliation claim under Title VII); Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465-66 (2d Cir. 1997) (requiring an "adverse employment action" to support an ADEA retaliation claim and holding that the denial of an office and telephone did not satisfy this standard).

Although the Court affirmed the Sixth Circuit in upholding the jury award for the employee, it resolved the circuit split by adopting a more expansive interpretation of the retaliation provision. Id. at 2414. Specifically, the Court held that a plaintiff asserting a retaliation claim under Title VII now "must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 2415 (citations and quotations omitted). The Court stated that this is an "objective standard" but noted that "the significance of any given act of retaliation will often depend upon the particular circumstances." Id. ("Context matters.").

Since Burlington Northern, the Second Circuit has applied the decision to ADEA retaliation claims. See Kessler, 2006 WL 2424705, at *8-*11. In Kessler, the plaintiff had been employed as an Assistant Commissioner of a county government agency. Id. at *1. The court reversed a grant of summary judgment in favor of employer on the plaintiff's ADEA retaliation claim because the plaintiff had come forward with evidence from which a "rational factfinder could permissibly infer that a reasonable employee [in plaintiff's position] could well be dissuaded from making a charge of discrimination." Id. at *11. Specifically, the plaintiff had offered evidence that, after engaging in protected activity, he was transferred "to an office in which, inter alia, he would not be allowed to perform [his prior] broad discretionary and managerial functions . . ., no one would report to him, and he would be forced to do work normally performed by clerical and lower-level personnel." Id.

3. Causal Connection

"The causal connection needed for proof of a retaliation claim can be established indirectly by showing that the protected activity was closely followed in time by the adverse action." Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001) (internal quotation omitted). "In a causation analysis, the Court must look to when the defendant first became aware of the plaintiff's protected behavior." Hawana v. City of N.Y., 230 F.Supp.2d 518, 530 (S.D.N.Y. 2002) (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). In the context of First Amendment retaliation, the Second Circuit "has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship . . . ." Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554 (2d Cir. 2001). See also Clark County Sch. Dist., 532 U.S. at 273 (collecting cases in which three and four-month periods between the protected activity and the adverse action were insufficient to establish a causal connection). "[W]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise." Slattery, 248 F.3d at 95. See, e.g., Phillips v. Mt. Sinai Med. Ctr., 2006 WL 177155, *1, *4 (S.D.N.Y. Jan. 24, 2006) (granting summary judgment to employer on retaliation claim where termination occurred three months after the filing of an EEOC charge and numerous disciplinary actions predated the filing).

III. Individual Claims

Defendants do not dispute that, for the purpose of this motion, each plaintiff claiming discrimination is within the protected age group. Nor, except as to plaintiff John Casciato, do defendants dispute that each plaintiff was minimally qualified for the position he or she held. Defendants move for summary judgment on the grounds that each plaintiff has failed to satisfy the third and fourth prongs of a prima facie case of age discrimination -- i.e., they argue that no plaintiff suffered an adverse employment action and that, in any event, the surrounding circumstances do not support an inference of discrimination. In addition, defendants offer legitimate, nondiscriminatory reasons for the alleged adverse employment actions as to each plaintiff. Finally, defendants argue that certain alleged employer actions are time-barred under the ADEA.

A. Sara Lee Melendi

Plaintiff Sara Lee Melendi was born in 1947 and began teaching home economics at Intermediate School ("I.S.") 220 in 1988. (Def. Ex. Melendi A; Resp. to 56.1 ¶ 37) After observing one of plaintiff Melendi's classes on November 8, 2001, defendant Jo Rossicone -- the Principal of I.S. 200 -- wrote a detailed letter to Melendi in which she rated the lesson as unsatisfactory because the class was talking and no work was taking place. (Def. Ex. Melendi O; Resp. to 56.1 ¶ 49) On November 13, 2001, Assistant Principal Loretta Witek sat in on Melendi's class and, in a letter to Melendi, reported that she had observed a "disruptive situation" that she found to be an "unsafe environment for . . . students." (Def. Ex. Melendi P; Resp. to 56.1 ¶ 50) On November 19, 2001, Witek again attended a class taught by Melendi and reported that she had observed a disruptive environment. (Def. Ex. Melendi Q; Resp. to 56.1 ¶ 51) Each of these letters to Melendi closed with the same sentence:

You are hereby informed that this unsatisfactory performance may lead to additional disciplinary action including an unsatisfactory rating and disciplinary charges that can lead to your termination.

(Def. Exs. Melendi O, P, Q) Witek recommended that Melendi visit other classrooms to observe how other teachers maintain order and discipline. (Def. Ex. Melendi Q) Witek later gave Melendi a schedule for observing other teachers. (Def. Ex. Melendi R, Resp. to 56.1 ¶ 54)

On November 29, 2001, Assistant Principal Linda Alfred received a complaint from an employee of the neighboring Maimonides Hospital. (Def. Ex. Melendi S; Resp. to 56.1 ¶ 52) According to the employee, during plaintiff Melendi's class, students yelled profanities at hospital employees from the classroom. (Def. Ex. Melendi S) Plaintiffs do not dispute that Melendi explained to Alfred that she had rebuked the students for their conduct but that they ignored her. (Resp. to 56.1 ¶ 52) Alfred wrote a letter to Melendi evaluating her conduct and noting, in particular, her failure to inform the students' parents of their behavior. (Def. Ex. Melendi S) This ...


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