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Attard v. New York City Department of Education

September 30, 2010


The opinion of the court was delivered by: John Gleeson, United States District Judge


This action arises out of the termination of Rebecca Attard from her position as a tenured English teacher at Port Richmond High School in Staten Island. Attard claims that she was given poor performance reviews and ultimately fired because of her age, in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., and the New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq. Her former employer, the New York City Department of Education, moves for summary judgment, arguing that she was legitimately dismissed for incompetence and insubordination.*fn1 I grant the motion for the reasons set forth below.


The following account is based on the evidence viewed in the light most favorable to Attard.

Between 1985 and 2001, Attard taught English at Clara Barton High School, a public high school in Brooklyn. Although her supervisors, who observed her classes two to three times a year, criticized her for, among other things, failing to police private conversations between students, they also praised her abilities. In her 16 years at Clara Barton, Attard was never awarded less than a "satisfactory" rating in an evaluation. In the spring of 2001, Attard requested, and was granted, a transfer based on her years of service to Port Richmond High School in Staten Island, where she lived. She was then 52 years old.

On the first day of school, Attard tried to introduce herself to the principal, Robert Graham, after a meeting of the entire teaching staff in the student lunchroom. Although she offered to shake his hand, he only nodded to her and moved on. He was busy, however, and may not have noticed that she had extended her hand. The same day, Attard also attended an English Department meeting, at which the chair, Assistant Principal Louise MacCallum, directed the teachers to assign group work as often as possible.

In October, MacCallum observed one of Attard's classes for the purpose of evaluating her. She was the first administrator to do so. Although she rated the lesson "satisfactory," she noted in her report that the class had "many problems" that she hoped would be corrected before her next observation. As was typical, MacCallum discussed her immediate reactions with Attard in a post-observation conference and sent her a typed report a few days later. For her part, Attard found this initial observation "pleasant" and MacCallum "very friendly."

Graham, with whom Attard had seldom interacted since she arrived at Port Richmond, observed one of her classes for the first time in late November. He gave her an "unsatisfactory" rating because, he wrote in his report, she failed to enforce a rule prohibiting students from wearing hats in class, permitted too much talking during instruction, did not summarize the lesson at the end of the class, and failed to assign any written homework.

Attard disputed Graham's report in a letter. She admitted that she may not have asked students to remove their hats, but said she would have if Graham had not done so first. What Graham characterized as talking out of turn she claimed was actually part of the class discussion. In fact, she argued, it was the students' enthusiastic participation that left her without time to give a summary of the material, a practice she agreed was generally helpful. She also noted that while it was true she had not assigned any homework that day, she had given the students an ongoing assignment that she collected weekly. Attard did not attribute Graham's criticism to deficiencies in her teaching method, but felt he was singling her out for some other reason, perhaps her age. As she testified, "[H]e didn't like me, I don't know personally or he wanted me out of the school, but I didn't think it was the teaching."

After Graham's negative report, Attard consulted a union representative, Mike Kramer, who advised to her to carefully follow any rules so that her noncompliance could not be held against her. He also told her that Graham "favored the young girls," which she understood as a reference to Graham's sexual preference for younger female teachers, with one of whom he was rumored to be having an affair.

In December, MacCallum again rated Attard's performance. She rated it "unsatisfactory," citing a "lack of classroom management [that] makes learning of any kind almost impossible in the classroom." At the post-observation meeting, MacCallum spontaneously told Attard, "We would like to get rid of you." When Attard asked her why, MacCallum said that her methods were "old-fashioned" and that she did not fit at in the school. By "old-fashioned," MacCallum explained that she meant Attard was relying on "old developmental lessons," not "group work," and she urged Attard to "go look at the younger teachers" because "they do group work."

Attard considered MacCallum's comments discriminatory and consistent with her behavior at department meetings, where she complimented teachers under age 40 for making engaging posters, for example, or assigning group work, but never verbally praised older teachers. Attard submitted a one-paragraph letter objecting to the evaluation, in which she disputed MacCallum's characterization of the class and accused Graham and MacCallum of discriminating against her because of her age and conspiring to force her to resign. (She also attached the letter to every negative observation report or written criticism she subsequently received.) In addition, Attard reported to Graham MacCallum's statement that she wanted to get rid of her. He indicated that he did not condone the remark and told Attard to try to get along with MacCallum as well as she could.

In late January 2002, Graham sent Attard a critical letter recounting an incident in which he discovered some of her students in the hall without passes. Although Attard believed his version of events was inaccurate, she decided it would be futile to specifically dispute the letter because she was convinced that he would ensure that she received an "unsatisfactory" rating for the year whatever she did. She was not concerned that the letter, unrebutted, might lead to a poor annual rating; a union representative had advised her that it was unlikely she could be forced out before she planned to retire.

MacCallum observed Attard in March and repeated her previous criticisms, writing that "[t]here were numerous problems with this lesson, but the overriding concern is in the area of classroom management and discipline." She directed Attard to observe three teachers, to meet with her to discuss their techniques, and to review lesson plans with her weekly.*fn2 She concluded the report with a warning that Attard's continued unsatisfactory performance "may lead to disciplinary action including an unsatisfactory rating at the end of this school year." Later in March, Graham also observed Attard. Like MacCallum, he reiterated his previous criticisms, particularly those concerning classroom discipline, and warned her that she could receive an adverse rating for the school year.

By this time, Attard, resigned to unsatisfactory reviews, no longer read observation reports carefully, but only glanced through them. She observed only one of the teachers that MacCallum instructed her to observe and reviewed lesson plans with MacCallum only a few times. Attard blamed their failure to meet on MacCallum, who she said was often not in her office at the appointed time. She also admitted, however, that she thought the meetings were ...

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