The opinion of the court was delivered by: William M. Skretny United States District Judge
Plaintiff Gail Walter ("Walter") commenced this action on December 17, 2004, alleging that the Hamburg Central School District (the "District"), Peter Roswell, Daniel George and Charles Amo (together, "Defendants") discriminated against her based on her sex and age, and retaliated against her for filing a charge of discrimination, when they failed to hire her for various permanent teaching positions. Walter claims Defendants acted in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. §§ 2000e et. seq.; Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. §§ 1681 et seq.; the Age Discrimination in Employment Act of 1967, as amended ("ADEA"), 29 U.S.C. §§ 621 et seq.; and the New York State Human Rights Law ("HRL"), N.Y. EXEC. L. §§ 290 et seq. (Docket No. 1("Compl.")).
Presently before this Court is Defendants' Motion for Summary Judgment*fn1 seeking dismissal of the Complaint in its entirety. (Docket No. 40.) Walter opposes the motion.*fn2 For the following reasons, Defendants' motion is granted in part and denied in part.
Walter is a 50 year old female. (Docket No. 56-1, Affidavit of Gail L. Walter, sworn to April 6, 2006 ("Walter Aff."), ¶ 3.) She holds Bachelor and Master degrees in physical education and, in 1989, received a New York State Permanent Public School Teacher Certificate for grades K-12. (Walter Aff., Ex. 7.)
In December 2000, Walter interviewed and was hired by the District as a long-term physical education ("PE") substitute teacher for grades K-5 at Union Pleasant Elementary School ("UPES") and Armor Elementary School. (Pl's Statement ¶ 36; Walter Aff., Ex. 10; Defs' Statement ¶ 33; Declaration of Michael P. McClaren ("McClaren Decl."), Ex. B ("Walter Depo.") at 67-69.) Walter worked in that position through the remainder of the 2000-2001 school year, and she continued thereafter in the same position under two successive one year contracts. (Pl's Statement ¶ 37; Walter Aff., Ex. 10.)
Before, during and after her employment as a long-term substitute teacher, Walter applied for permanent, full-time positions as a PE teacher with the District. Specifically, Walter submitted applications in July 2000 (two positions available), May 2002, August 2003 and December 2003. (Compl. ¶¶ 24, 30, 37, 43; Defs' Statement ¶¶ 2, 23.) Another permanent position, for which Walter states she did not apply, was filled in November 2004. (Pl's Statement ¶ 3.)
The positions at issue, the approximate months in which the positions were filled, and information about the successful applicants are as follows:
* July 2000 UPES, to teach grades K-2 and Adapted PE; filled by Mahoney, a male candidate under age 30;
* July 2000 Charlotte Avenue Elementary School, to teach grades K-5; filled by Meyer, a male candidate under age 25;
* June 2002 Hamburg Middle School; filled by Grobe, a male candidate, age 22;
* September 2003 UPES, to teach grades K-2 and Adapted PE; offered to Dux, a male candidate under age 25, and then to Smith, a male candidate age 25;
* February 2004 Hamburg High School; filled by Gordon, a female candidate under age 25;
* November 2004 Boston Valley Elementary School; not posted and filled by Wellington, a male under age 25.
(Pl's Statement, ¶ 3; Walter Aff., ¶¶ 27-29, 43, 53, 57-58, 66, 67-68; Defs' Statement, ¶¶ 38, 45, 81, 85.)
When filling positions, the District utilizes written Recruitment and Appointment Procedures for Probationary Teacher Appointments (the "Procedures"). (Biltekoff Decl., Ex. D.) Pursuant to the District's Procedures, when a position becomes available, the Assistant Superintendent of Personnel assembles a "district level committee" whose members each screen candidate application packets and provide a numerical ranking for each candidate's "paper qualifications." (Pl's Statement ¶ 21; Defs' Statement ¶ 20; Amo Aff. ¶ 13.) The individual rankings are tallied, and a chart created that sets forth each candidate's overall rank. (Pl's Statement ¶ 22; Walter Aff., Ex. 17; Defs' Statement ¶ 20.) The Assistant Superintendent, who is a member of the district level committee, selects applicants from the ranking sheet for district level interviews. (Pl's Statement ¶ 23; Defs' Statement ¶ 20; Biltekoff Decl., Ex. D; Amo Aff. ¶ 14; Peffer Aff. ¶ 10.) The other committee members are not advised of the applicants' relative rankings. (See, e.g., Amo Aff. ¶ 13; Grace Aff. ¶ 9.)
At the district level interview, each candidate is asked the same set of questions. (Biltekoff Decl., Ex. D; Defs' Statement ¶ 21.) The committee members collectively select one or more of the interviewees to advance to "building level" interviews. (Id.)
A "building level committee" then interviews the recommended candidates by presenting each with an identical set of questions, works to arrive at a consensus candidate to recommend for hire, and makes that recommendation to the District's Superintendent. (Pl's Statement ¶ 25; Defs' Statement ¶ 22; Amo Aff. ¶ 21.) The Superintendent delivers the committee's recommendation to the Board of Education, which then decides whether to make the offer of employment. (Biltekoff Decl., Ex. D; Defs' Statement ¶ 15.)
On October 7, 2003, Walter filed a Notice of Claim against the District seeking damages arising from the District's failure to hire her for the K-2 PE position posted in August 2003. (Walter Aff. Ex. 1, ¶ 9.) Walter alleged a pattern of age and sex discrimination in the District's repeated failure to hire her on a permanent basis. (Id. ¶ 11.)
On November 4, 2003, Walter filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging age and sex discrimination in the District's failure to hire her in 2003, and noting its prior decisions not to hire her in 2000 and 2002. (Id. Ex. 2, ¶¶ 4-17.) The EEOC issued a determination on or about July 27, 2004, in which it concluded that "the evidence obtained during [its] investigation establishes a violation of Title VII of the Civil Rights Act of 1964, as amended and the Age Discrimination in Employment Act." (Id. Ex. 3 at 2.) On September 21, 2004, the EEOC issued a Notice of Right to Sue. (Id. Ex. 4.)
Walter filed a second EEOC charge on November 29, 2004, alleging that she had been denied a high school PE position in February 2004 because of her age and sex and in retaliation for filing her first EEOC charge. (Id. Ex. 5, ¶¶ 4-10.) The EEOC issued a Notice of Right to Sue on the second charge, at Walter's request, on or about December 14, 2004. (Compl. ¶ 21.)
Walter commenced this action on December 17, 2004, within 90 days of the issuance of both Right to Sue Notices.
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that summary judgment is warranted where 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 judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id. "An alleged factual dispute regarding immaterial or minor facts between the parties will not defeat an otherwise properly supported motion for summary judgment." Powell v. National Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (citation omitted). In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be viewed in the light most favorable to the non-moving party. Weinstock v. Columbia Univ., 224 F.3d 33, 40 (2d Cir. 2000).
The Second Circuit has noted that trial courts should be particularly cautious in deciding whether to grant summary judgment in employment discrimination cases, because the employer's intent is often at issue. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). However, the Supreme Court more recently has "reiterated that trial courts should not 'treat discrimination differently from other ultimate questions of fact.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed. 2d 105 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524, 113 S.Ct. 2742, 125 L.Ed. 2d 407 (1993)). In other words, summary judgment can be appropriate even in the fact-intensive context of discrimination cases. This is consistent with a principle purpose of the summary judgment rule; "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986).
B. TIMELINESS OF PLAINTIFF'S FEDERAL CLAIMS
1. Title VII and the ADEA
To maintain a discrimination action under Title VII, a plaintiff must file a timely charge with the EEOC or the equivalent state agency, receive from that agency a right to sue letter, and commence an action within 90 days after receipt of that letter. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994). Similarly, a court may hear only those ADEA claims that are included in a timely filed EEOC charge.*fn3 Holowecki v. Federal Express Corp., 440 F.3d 558, 562 (2d Cir. 2006). In New York state, where state and local agencies have the authority to investigate claims of discrimination, an administrative charge must be filed within 300 days of the alleged unlawful conduct. Forsyth v. Federation Employment and Guidance Serv., 409 F.3d 565, 572 (2d Cir. 2005) (citing 42 U.S.C. § 2000e-5(e)(1)).
The "filing [of] a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed. 2d 234 (1982). However, circumstances supporting exceptions to the statutory requirements are rare. Twenty years after Zipes, the Supreme Court had occasion to discuss the applicability of the continuing violation theory to extend the administrative filing period and reconfirmed that "'strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.'" National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108, 122 S.Ct. 2061, 153 L.Ed. 2d 106 (2002) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)).
In calculating the procedural limitation periods in Morgan, the Supreme Court held that discrete acts of discrimination or retaliation are deemed to have occurred on the date that they happened. Therefore, a party must file an EEOC charge within 300 days after the complained of act or lose the ability to recover for it. 536 U.S. at 108. Discrete acts generally are easy to identify and include such things as termination, failure to promote, denial of transfer or, as is alleged in this case, refusal to hire. Id. at 114.
Defendants contend that Walter's claims are based on discrete events. Thus, they argue that to the extent Walter's claims of age and gender discrimination are based on events occurring prior to January 8, 2003-more than 300 days prior to the filing of her November 4, 2003 EEOC charge-they are time-barred.
Walter counters by urging that the District engaged in a "pattern and practice" of discriminatory hiring from 2000 to the present based on its Recruitment and Appointment Procedures for Probationary Teacher Appointment, this pattern was expressly referenced in her November 2003 EEOC charge, and, therefore, the events occurring prior to January 8, 2003 are actionable as part of a "continuing violation."
A continuing violation may be found in two circumstances: (1) where there is proof of specific ongoing discriminatory policies or practices, or (2) where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice. Balenti v. Massapequa Union Free Sch. Dist., 03-CV-1193, 05-CV-5271, 2006 U.S. Dist. LEXIS 62899, at *23 (E.D.N.Y. Sept. 5, 2006) (citations and quotation marks omitted). When a claim is based on a continuing violation, the commencement of the statute of limitations period may be delayed until the final act of discrimination in furtherance of the discriminatory policy or practice. Butts v. New York City Dep't of Pres. and Dev., 00-CV-6307, 2007 U.S. Dist. LEXIS 6534, at *22 (S.D.N.Y. Jan. 29, 2007) (citing Washington v. County of Rockland, 373 F.3d 310, 317 (2d Cir. 2004)).
The Court finds that Walter's reliance on a continuing violation theory fails for two reasons. First, in Morgan, the Supreme Court severely limited the second basis for a continuing violation when it held that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act." 536 U.S. at 113 (emphasis supplied); see also, Gaston v. New York City Dep't of Health, 432 F. Supp. 2d 321, 327-28 (S.D.N.Y. 2006). After Morgan, the continuing violation theory remains viable as to related acts that, taken together, constitute a single claim of hostile work environment, but not as to discrete discriminatory acts such as are alleged by Walter. See Rechichi v. Eastman Kodak Co., 02-CV-6249, 2004 U.S. Dist. LEXIS 14896, at *13-14 (Jan. 21, 2004). As already noted, Morgan specifically identified a refusal to hire as a readily recognized, discrete act. 536 U.S. at 114.
Second, even if one assumes the continuing violation doctrine is viable as to "pattern or practice" claims,*fn4 Walter has not established the existence of a "pattern or practice" as that concept has been defined in the relevant authority. Pattern or practice claims, the first basis for a continuing violation, involve multiple incidents of discrimination against individuals in a particular protected class arising from a discriminatory policy or mechanism, such as a seniority system or an employment test. See, e.g., Robins v. Metro-North Commuter R.R. Co., 267 F.3d 147, 153 (2d Cir. 2001), cert. denied, 535 U.S. 951, 122 S.Ct. 1349, 152 L.Ed. 2d 251 (2002); Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001), cert. denied, 536 U.S. 922, 122 S.Ct. 2586, 153 L.Ed. 2d 776 (2002). To sustain a pattern or practice claim, a plaintiff must establish that intentional discrimination was the company's standard operating procedure-its regular practice rather than an unusual one. Employees Committed for Justice v. Eastman Kodak Co. ("ECJ"), 407 F. Supp. 2d 423, 427-28 (W.D.N.Y. 2005) (quoting Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed. 2d 396 (1977)).
Because such claims are based on the existence of a company-wide policy or mechanism, "class actions are uniquely suitable for litigating discrimination claims under the pattern and practice framework." ECJ, 407 F. Supp. 2d at 428 (citing Allison v. Citgo Petroleum Corp., 151 F.3d 402, 409 (5th Cir. 1998)). Indeed, most districts in this Circuit have seriously questioned whether courts can consider pattern or practice claims outside the context of class actions, and one district has held that it cannot. See Heap v. County of Schenectady, 214 F. Supp. 2d 263, 271 (N.D.N.Y. 2002) (dismissing pattern or practice claim as improper in the context of an individual disparate treatment case); see also, Idrees v. City of New York, 04 Civ. 2197, 2005 U.S. Dist. LEXIS 7643, at *17 (S.D.N.Y. May 3, 2005) ("it is not even clear that a plaintiff may bring a pattern-or-practice claim outside of a class action suit") Foster-Bey v. Henderson, 98-CV-1097, 2000 U.S. Dist. LEXIS 6634, at *3 n.1 (D. Conn. Apr. 7, 2000) (court not convinced that a plaintiff may bring a pattern or practice claim in non-class action complaint); Calabritto v. Nassau County Dist. Attorney, 920 F. Supp. 370, 377 (E.D.N.Y. 1996) (citing to courts that have questioned the applicability of a pattern or practice analysis to individual plaintiff discrimination suits); In re Western Dist. Xerox Litig., 850 F. Supp. 1079, 1083 (W.D.N.Y. 1994) (noting that pattern or practice trials generally occur in the context of class actions or suits brought by the Government).
This Court need not decide the appropriateness of a single plaintiff pattern or practice claim today. Even were the Court to conclude that Walter can properly bring a pattern or practice claim on behalf of herself alone, she has not come forward with evidence supporting a conclusion that intentional discrimination was the District's standard operating procedure. Although Walter makes reference to the District's Procedures in her opposition to Defendants' motion, she does not contend that the recruitment and appointment process has systematically disadvantaged a particular protected class.*fn5 Nor does she otherwise offer evidence of the existence of a District-wide discriminatory policy or mechanism.*fn6 It is well-settled that a plaintiff cannot maintain a claim based on an ongoing discriminatory policy, particularly when responding to a motion for summary judgment, simply by invoking the words "pattern" or "practice" or by conclusorily alleging disparate impact. Mirasol v. Gutierrez, 05 Civ. 6368, 2006 U.S. Dist. LEXIS 16465, at *14-15 (S.D.N.Y. Apr. 5, 2006) (citations and internal quotation marks omitted); In re Western Dist. Xerox Litig., 850 F. Supp. at 1086 (individual incidents, without more, do not "give rise to an inference that defendant engaged in a corporate-wide pattern or practice of discrimination").
In sum, Walter identifies discrete acts that are not in themselves sufficient to support a "pattern or practice" claim. The discrete acts alleged, even if related, cannot form the basis for a continuing violation. Accordingly, Walter's Title VII and ADEA discrimination claims ...