The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff Kathryn S. Sever ("Plaintiff") commenced this action asserting claims pursuant to 42 U.S.C. § 1983 and New York state law. See Am. Compl. dkt. # 5. After filing an Answer, dkt. # 8, Defendants, the Board of Education of the Maine-Endwell Central School District ("District") and Joseph F. Stoner ("Stoner"), moved to dismiss various claims pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Dkt. # 10. The Court granted the motion in part and denied it in part. See 11/19/10 Dec. & Ord., dkt. # 14.
After the Decision on the Rule 12(c) motion, the following claims remained: the First Cause of Action alleging that Plaintiff's constitutionally protected property interest in her tenured employment was denied without due process; the Fourth Cause of Action alleging a violation of N. Y. Education Law § 2510; the Fifth Cause of Action alleging age discrimination under the New York Human Rights Law ("HRL"); and the Sixth Cause of Action alleging that Stoner aided and abetted the age discrimination. Defendants now move for summary judgment seeking to dismiss the remaining claims. See dkt. # 17. Plaintiff has opposed the motion, dkt. # 20, and Defendants filed a reply. Dkt. # 21. For the reasons that follow, the motion is granted in part and denied in part.
The Court previously set forth the factual underpinnings of Plaintiff's claims in the November 19, 2010 Decision and Order, familiarity with which is presumed. The current motion concerns whether the District's decision to abolish Plaintiff's former position as the Assistant Superintendent for Instruction ("ASI") was done properly under New York law, or whether it was a pretext for discrimination. A central focus of this dispute is Plaintiff's contention that she was replaced by Darlene Darrow ("Darrow") who held the title of Director of Leadership, Learning and Accountability ("DLLA"). Plaintiff also asserts that she was discriminated against on account of her age in her discharge, and in relation to receiving certain employment benefits. Because the Court assumes familiarity with the underlying background factual contentions, the Court will address the material facts only where relevant in discussing the claims, infra.
On a motion for summary judgment the Court must construe the properly disputed facts in the light most favorable to the non-moving party, see Scott v. Harris, 127 S. Ct. 1769, 1776 (2007), and may grant summary judgment only where "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see O'Hara v. National Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir. 2011). Suffice it to say that where, as here, the intent of a party is in question but there is no direct evidence of discrimination, the Court must carefully examine the reasonable inferences that could be drawn from the totality of the circumstantial evidence and be cautious about granting summary judgment. Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006).
a. Due Process & New York Education Law § 2510 Claims
"The tenured public employee is entitled to oral or written notice of
the charges against him, an explanation of the employer's evidence,
and an opportunity to present his side of the story." Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 546 (1985); see Gould v. Board of
Educ., 81 N.Y.2d 446, 451 (1993);*fn1 Blum v.
Schlegel, 18 F.3d 1005, 1014 (2d Cir. 1994);*fn2 Adams
v. N.Y. State Educ. Dep't, 2010 WL 624020 at *30 (S.D.N.Y. Feb. 23,
2010)(Peck, M.J.).*fn3 A "post-abolition Article 78
proceeding" would be sufficient
only if Plaintiff's position was abolished for legitimate reasons and
there was not a similar position filled by the Board. See Elmendorf v.
Howell, 962 F. Supp. 326, 332 (N.D.N.Y. 1997);*fn4 see
also Boddie v. Connecticut, 401 U.S. 371, 379 (1971);*fn5
Elmendorf and DeSimone with Fairbairn v. Bd. of Educ. of
South Country Cent. Sch. Dist., 876 F. Supp. 432, 435 (E.D.N.Y.
New York Education Law § 2510 provides:
If the board of education abolishes an office or position and creates another office or position for the performance of duties similar to those performed in the office or position abolished, the person filling such office or position at the time of its abolishment shall be appointed to the ...