The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This employment discrimination case is before the Court on Defendant's motion (Docket No. 53) for summary judgment. For the following reasons, Defendant's motion is granted.
The following facts are taken from the parties' submissions and viewed in the light most favorable to the nonmoving party. Plaintiff was hired by BOCES in February 1998 as a special education teacher in the department called, "Department of Exceptional Children." Plaintiff was then 49 years of age. For the next three years, Plaintiff received positive reviews from her supervisor, Kathleen Cummings. In 2001, Plaintiff was granted tenure on the basis of recommendations from Cummings and the department's director, Joseph Kelly. Plaintiff now claims that both Cummings and Kelly discriminated against her based on her age.
At the conclusion of the 2002-03 school year, funding for BOCES' Department of Exceptional Children declined, as did enrollment, necessitating elimination of a number of teaching positions in the preschool special education programs. A number of teachers were laid off based on seniority, as required by New York State Education Law section 2510. As a result of her seniority, Plaintiff was not laid off, but was guaranteed employment at BOCES for the 2003-04 school year. Since her position in the preschool special education program had been eliminated due to budget cuts, Plaintiff was considered for other positions for which she was qualified. Plaintiff does not claim that anything discriminatory occurred as a result of the manner in which the layoffs were handled by BOCES. (Hoffkins Dep., at 70.) Each individual teacher who was not laid off (called an "unassigned teacher"), was asked to complete a "Declaration of Interests in an Assignment Change" form, a preference sheet listing each of the programs within the department for which a position was available. Anyone on the unassigned teacher list still had to participate in an interview process prior to being awarded a position. Seniority only played a role for such transfers if the qualifications of all the candidates were equal. (Hoffkins Dep., at 66-67.) Plaintiff conceded at her deposition that qualifications of all of the unassigned teachers were equal. (Hoffkins Dep., at 74.) On her Declaration, Plaintiff checked off each program listed including both the elementary and secondary 8:1:2 programs*fn1 and the Therapeutic Day program. Following interviews, Plaintiff was offered the 8:1:2 program in May, and accepted the position. (Hoffkins Dep., at 82.) Subsequently, at the end of the summer, and before the school programs began, Plaintiff was offered the Therapeutic Day Program, which she declined. (Id.)
On August 19, 2003, 4 days prior to the start of the school year, Plaintiff submitted a letter of resignation to Kelly. Throughout the summer of 2003, Plaintiff had continued to believe she would be offered a position in the preschool program. (Hoffkins Dep., at 86.) Plaintiff informed Kelly she was reluctant to fill the position in the 8:1:2 program because of a lack of training and her concern about safety. (Hoffkins Dep., at 167.)
On August 26, 2003, after she had resigned, Plaintiff was offered a substitute position in the Early Intervention Program. The position became available when the regular teacher for that program, Nancy McMullen, took a two-month leave following the unexpected death of her spouse. Cummings did not initially support having the position offered to Plaintiff. Since Plaintiff had resigned her prior position four days before the start of school, Cummings concluded that Plaintiff lacked concern for the students and was inflexible regarding assignments. (Cummings affidavit ¶¶ 6-7.)*fn2 However, following consultation with her colleagues, Cummings came around to the point of view that offering Plaintiff the temporary position would not, in the long run, be detrimental and, in the short run, would ensure that the class could continue without interruption for a lengthy hiring process, or training a new substitute. Plaintiff filled that position from September 2003 through November 2003 when McMullen returned to work.
After funding became available for the hiring of additional teachers, Micki Abbatiello, who was responsible for hiring and recruiting at BOCES, prepared vacancy announcement checklists on December 5, 2003 (for a special education itinerary teacher in preschool), on December 16, 2003 (for a half-time position in preschool) and on February 17, 2004 (for a special education teacher in a preschool classroom). Positions were advertised and, following interviews, individuals were employed to fill the positions. Prior to filling those positions, Abbatiello discussed with Cummings whether they should consider Plaintiff for any of the positions. Plaintiff was considered by Cummings for those positions, however, Cummings decided it would not be in the best interests of the children to hire her. Cummings expressed the concern that if hired for a preschool program, and later asked to teach in another grade level or program, Plaintiff would again resign. Accordingly, she made the decision not to hire Plaintiff for any of the open positions.
The three individuals hired were Julian Driscoll, Melinda Hyde and Andrea Mastrella. Driscoll had a bachelor of science degree in special education and was certified in special education. She had experience as a student teacher with first, fifth and sixth grades. Hyde also had a bachelor of science in education with a major in exceptional education and she too was certified in special education and had previous experience working with children with disabilities. Mastrella had a bachelor of science in social work and a bachelor of arts in early childhood education and was also certified in elementary education and special education. She also had previous experience working with students with academic deficits, and additionally she had training in crisis interventions. Further, she had previous experience as a socio-therapist working in therapeutic preschool program providing intervention to high-risk children and their families.
Cummings testified that she had about 25 employees working directly for her. Some were over 40 in age, some were 50 and some over 60. (Cummings Dep., at 50-52.) Plaintiff disputes Defendant's assertion that Cummings never once told Plaintiff she was too old for the job, or said anything to indicate an animus toward older workers. (Defendant's Statements of Undisputed Material Facts ¶ 76; Plaintiffs Statement of Material Facts and Those Controverted by the Plaintiff ¶ 76.) Plaintiff's deposition transcript indicates that from September 2003 through November 2003, Cummings never said anything to her to indicate she was too old for the job. (Hoffkins Dep., at 122.) Further, Plaintiff does not cite to any evidence that Cummings said anything in relation to Plaintiff being too old for the job outside that time frame. Plaintiff filed a complaint with the Equal Employment Opportunity Commission on October 21, 2004.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, 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). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 Moore's Federal Practice, § 56.11[a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the ...