The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Catherine Banigo ("Plaintiff" or "Banigo") commenced this action against defendants Board of Education of the Roosevelt Union Free School District, Roosevelt Union Free School District (collectively the "District') and Ronald Ross ("Ross") (the District and Ross are collectively referred to as "Defendants") asserting claims for violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; New York Executive Law § 296; procedural due process under the Fourteenth Amendment; violations of New York Education Law §§ 2510, 3012, and 3020-a; and tortious interference with contract. Presently before the Court is Defendants' motion for summary judgment. For the reasons set forth below, the motion is granted as to the first through seventh causes of action. The eighth and ninth causes of action are dismissed without prejudice.
The following material facts are undisputed unless otherwise noted.
Banigo began teaching at the District's middle/senior high school in September 1987. She is certified to teach business education and received tenure in the district in the area of business education sometime in 1990. Banigo taught in the district until her position was abolished effective June 2005, resulting in her termination. Her birth date is April 22, 1947 and she was 58 years old at the time her position was abolished. During her time in the District, Banigo taught various classes including business math, accounting, keyboarding, word processing, electronic information processing, business law, introductions to occupations, financial literacy, business analysis, business computer applications and web page design. She taught web page design only one year, the 2001-2002 school year; it is not clear how many periods she taught that class that year. (See Banigo Dep. at 45 ("I'm not certain [ how many sections of web design I taught during that year] , I believe it was two.").) Web page design falls under the area of information or computer technology on the Basic Educational Data System ("BEDS") forms; it does not come within the ambit of business education on the BEDS forms.*fn1
Plaintiff's was not the only position abolished effective June 2005. The District also abolished one position in guidance, one position in technology, and one position in reading, as well as another position in business education. (See Pymm Aff. Ex. J.)*fn2
Prior to the abolishment of the two business education positions, there were three business education teachers in the District: Banigo, Ms. Varis and Ms. Carr. As a result of the abolishment of the two business education positions, Ms. Varis, approximately forty-five years old at the time, also lost her position. Ms. Carr, who was at the time approximately fifty-eight years old, had the most seniority and therefore stayed in the one remaining business education position. Following the abolishment of the two business education teachers in June 2005, the District has not hired any new business education teachers.
According to the Defendants, the elimination of positions effective June 2005 was due to a restructuring for reasons of economy and efficiency. Specifically, the elimination of the two business education positions was warranted, according to Defendants, because the department's classes were antiquated and not assisting the high school in changing its failing status. Ross planned on eliminating the entire department but could not do so in 2005 because there were high school students who needed certain business classes in order to complete a sequence, thereby enabling them to graduate.
Plaintiff maintains that the elimination of positions was motivated by a desire to replace older female teachers with younger male teachers.
Konate Lilas ("Lilas"), who is certified to teach social studies, began teaching in the District in 2004 as a member of the Social Studies department. Lilas' birthdate is May 28, 1973. He began his tenure in the District at the New Horizons School, the District's alternative school. For the 2005-2006 school year Lilas was assigned to the High School where he taught three web design classes, as well as video editing and social studies. No information is provided as to whether the web classes taught by Lilas in 2005-2006 and the web design class taught by Banigo four years earlier covered the same material. For the 2005-2006 school year Lilas was also appointed district webmaster, responsible for updating the District's website.
Plaintiff filed a complaint with the EEOC in December 2005. In July 2006, the District sent to all employees aged fifty-five or older who were eligible to retire (i.e. had ten or more years' teaching experience), a retirement incentive offer of thirty percent of their last year's salary and one hundred percent health care coverage if they would retire between July 10 and August 10, 2006. Plaintiff, although over the age of fifty-five and having more than ten years teaching experience in the District, did not receive this offer.
I. Applicable Law and Legal Standards
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. See Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Cons. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted). Affidavits submitted in opposition to summary judgment must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show that the affiant is "competent to testify to the matters stated therein." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (citing Fed. R. Civ. P. 56(e)). "Rule 56(e)'s requirement the affiant have personal knowledge and be competent to testify to the matters asserted in the affidavit also means that an affidavit's hearsay assertions that would not be admissible at trial if testified to by the affiant is insufficient to create a genuine issue for trial." Patterson, 375 F.3d at 219 (citing Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,183 F.3d 155, 160 (2d Cir. 1999)). "Nor is a genuine issue created merely by presentation of assertions that are conclusory. . . . Rule 56(e) states that '[w]hen a motion for summary judgment is made and supported as provided in this rule . . . the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Patterson, 375 F.3d at 219 (citations omitted) (brackets and emphasis in original).
When determining whether a genuinely disputed factual issue exists, "a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability," or "the substantive evidentiary ...