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Kathryn S. Sever v. the Board of Education of the Maine-Endwell Central School District and


September 6, 2012


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. 1995).*fn6

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 office or position thus created without reduction in salary or increment. . . .

N.Y. Ed. L. § 2510(1) (emphasis added).

"Similar" is a term given a "liberal interpretation," Mairs v. Board of Ed. of Island Park Union Free School Dist., 82 Misc. 2d 989 (Sup. Ct. Nassau Cty. 1975), with courts generally applying the 50% rule. In this regard, "'the test of whether the duties of the two positions are in fact similar is whether more than 50% of the functions to be performed by the incumbent of the new position are those which were performed by the [Plaintiff] in her old position.'" Elmendorf, 962 F. Supp. at 331 (quoting Greenspan v. Dutchess County BOCES, 96 A.D. 2d 1028 (2d Dep't 1983)).

Plaintiff's due process claim boils down to whether Plaintiff's ASI position was abolished for legitimate reasons, or whether the District sidestepped New York Education Law by the subterfuge of calling her dismissal a position abolishment but really replacing her with Darrow in the DLLA position. See DeSimone v. Bd. of Educ., Huntington Union Free Sch. Dist., 604 F. Supp 1180, 1181-83 (E.D.N.Y. 1985).*fn7 Plaintiff's claim that Defendants violated New York Education Law § 2510 by replacing her with Darrow in the DLLA position turns on the resolution of whether the two positions were "similar."

When viewing the facts in the lights most favorable to Plaintiff, a reasonable fact finder could conclude that Plaintiff had not agreed to a "three year plan" for her retirement in exchange for 5% pay raises, as Defendants contend. See P. Rule 50-h Trans., p.33;*fn8 pp. 20, 27;*fn9 Stoner Dep. P. 57.*fn10 There is also sufficient evidence from which a reasonable fact finder could conclude that Plaintiff received her 5% raises based at least in part on merit, not because of an agreement to retire, Stoner Dep. p. 66,*fn11 and that the 5% raises were not drastically higher than raises paid to other administrators. Id. pp. 61-62.*fn12

Further, there is evidence that the parties continued to discuss the circumstances of Plaintiff's retirement during the summer of 2008 and again in November of 2008, see Sever Dep. p. 67-68, thereby providing a basis upon which a fact finder could conclude that Plaintiff did not end her employment of her own volition pursuant to a three year retirement plan. Moreover, the evidence indicates that Plaintiff's job was abolished on May 28, 2009, and, thereafter, Plaintiff submitted a letter wherein she stated that she was "forced to submit my resignation for the purpose of retirement.." Pl. 6/4/09 Ltr., ex. CC; see also Pl. Dep., p. 6.*fn13

There is also evidence that would cast doubt on Defendants' contention that the abolition of Plaintiff's position was part of a District strategic plan driven by "economic and efficiency" concerns. On June 4, 2009, Plaintiff wrote to Stoner to "request a copy of any materials that set forth how the district plans to reassign the duties of my position to other positions." District counsel informed plaintiff on June 15, 2009 that "these plans are still subject to revision and are not yet final." Plaintiff apparently renewed her request on August 3, 2009 but did not receive a response from the District. Darrow was informed of her appointment to the DLLA position "just a few days before" she started in the position on August 18, 2009. Darrow Dep. p. 10. A reasonable inference from this evidence is that it was not until after Plaintiff submitted her resignation that the new position of DLLA was created and offered to Darrow. Further, Darrow received a salary and raises roughly equivalent to Plaintiff, casting doubt on whether abolition of Plaintiff's position was for economic reasons,*fn14 and there is a dispute as to whether other positions beside Plaintiff's ASI position were abolished at the time of this purported reorganization.

Moreover, there is evidence indicating a close similarity between the functions and duties of Plaintiff's ASI position and Darrow's DLLA position. Darrow's secretary was Virginia "Ginnie" Spencer, who was also Plaintiff's secretary. Darrow worked in Plaintiff's former office. The ASI job description indicated that Plaintiff "shall be responsible for the coordination and planning of the total curriculum, pre-kindergarten through grade 12 in all areas." The job description for Darrow as DLLA included the responsibility to "oversee the planning and designing EK-12 curriculum .... " See also Darrow Dep. pp. 19, 135. Plaintiff and Darrow were both responsible for professional development at the District. Darrow Dep. pp. 87-88. Both Darrow and Plaintiff were responsible for reviewing and reporting student assessment scores to the Board of Education. Ex. C. Plaintiff and Darrow both attended "Regional State Meetings" in the areas of instruction, curriculum and professional development. Ex. F; Darrow Dep. p. 89. Both Plaintiff and Darrow were the facilitators of the District's Numeracy and Planning Teams. Both Plaintiff and Darrow were supervisors for Kathy Cornacchio, the District Mentor for the Induction Team, and there is evidence that both were in charge of the District's Home Instruction program and that each was involved in overseeing the area of Grant Applications for the District. There is also evidence indicating that both Plaintiff and Darrow were members of the Cabinet in their respective positions, and attended Principals and Directors Meetings, Literacy Meetings, Lead Teacher Meetings, K-12 Balanced Literacy, Organization for Instructional Representatives Meetings, Common Core Math Meetings, Superintendent Conference Day presentations, District Office Meetings, and Board of Education meetings.

Based on these similarities, and despite that Darrow testified that the two positions were 80% different, a reasonable fact finder could conclude that the duties of the DLLA exceeded the 50% similarity threshold required by case law interpreting New York Education Law § 2510.

Finally, there is a lack of evidence that indicates that Plaintiff was put on notice of, or offered, the DLLA position, or that the District sought out any candidates for the position other than Darrow. In fact, Ms. Spencer testified that the DLLA position was never posted and that it was not offered to anyone other than Darrow. Spencer Dep. P. 13.

Viewing the facts in the light most reasonable to Plaintiff, a reasonable fact finder could conclude that the District violated Plaintiff's constitutional due process rights by failing to provide her pre-deprivation due process, and violated New York Education Law § 2510(1) by failing to offer her the newly created DLLA position that was functionally similar to Plaintiff's AIS position. Therefore, summary judgment on these claims is denied. It will be for a jury to decide whether Plaintiff voluntarily retired, and whether the AIS and DLLA positions were similar within the meaning of New York Education Law § 2510. Elmendorf, 962 F. Supp. at 331-332.*fn15

b. N.Y. HRL Age Discrimination / Aiding and Abetting Claims

Defendants also move to dismiss Plaintiff's claims of age discrimination against the District, and the aiding and abetting claim against Stone. Age discrimination claims brought under the New York Human Rights Law are analyzed using the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973). See Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010); Leibowitz v. Cornell University, 584 F.3d 487, 498 n. 1 (2d Cir. 2009). Under this framework, Plaintiff must first establish a prima facie case of discrimination. To establish a prima faciecase of age discrimination under the New York's Human Rights Law, Plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination. Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629 (1997). If the plaintiff establishes a prima facie case, defendant bears the burden to "articulate some legitimate, nondiscriminatory reason for the [adverse act]." Leibowitz v. Cornell University, 584 F.3d 487, 499 (2d Cir. 2009) (internal quotation marks omitted). A defendant's burden is "one of production, not persuasion." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142, 120 S. Ct. 2097, 147 L. Ed.2d 105 (2000). If the defendant articulates a legitimate, nondiscriminatory reason for the adverse action, the burden shifts to Plaintiff, in opposing a motion for summary judgment, to demonstrate that a reasonable jury could find, "by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action." Gorzynski, 596 F.3d at 106 (internal quotation marks omitted).

Plaintiff's New York Human Rights Law age discrimination claims are asserted in the Fifth and Sixth Causes of Action. Plaintiff alleges in the Amended Complaint that at the relevant time she was 60 years old and the oldest administrator in the District office and cabinet; Defendants abolished her position as a pretext for terminating her employment; the true motivation for her discharge was her age; and younger administrators were allowed to buyback sick and vacation days on a yearly basis, but that Plaintiff was allowed to do so only if she agreed to retire. See Am. Compl. ¶¶ 64-71. Plaintiff further asserts that Stoner aided and abetted the District's age discrimination. The Court will address the claims seriatim.

(1) Termination

Plaintiff has not alleged that she replaced by a younger individual, see Am. Compl. ¶¶ 67-68; Pl. Counter Stat. Mat. Facts, and the Court finds no indication in the current record of Darrow's age. Moreover, the Statements of Material Facts, including Plaintiff's Counter-Statement of Material Facts, are devoid of any indication of Darrow's age. See Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002);*fn16 Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 291 (2d Cir. 2000).*fn17 Although Plaintiff alleges in the Amended Complaint that she was the "oldest administrator in the District office and cabinet," there is no indication whether Ms. Darrow was an administrator or a member of the District cabinet at the time that Plaintiff's position was abolished (i.e. before Ms. Darrow assumed her new position). Therefore, even assuming that Plaintiff was to establish that she was replaced by Darrow, she has not presented sufficient evidence to establish a claim of age discrimination related to her purported discharge and replacement. Accordingly, this aspect of Plaintiff's claim is dismissed.

(2) Buyback Benefits

The Court turns next to the component of Plaintiff's claim asserting that she was treated differently than younger administrators with regard the District's decision to buy back employees' unused leave time. Am. Compl. ¶ 69. Plaintiff asserts that she was treated differently than "younger administrators" with regard to the District's unused leave buyback benefit in that she did not have the yearly option, and could receive the benefit only if she retired. She asserts in her Counter Statement of Material Facts that Stoner, Jeff L'Amoreaux (Assistant Superintendent for Business), and Mari Geisenhof (Director of Technology) received the yearly buyback benefit. See also Stoner Dep. pp. 45-46;*fn18 63- 64.*fn19

Defendants argue that this claim must fail because, after Plaintiff retired, she received the full monetary value of the buyback option. Therefore, Defendants contend, Plaintiff cannot establish that she suffered an adverse employment action such to give rise to an actionable age discrimination claim. This argument, viewed in the abstract and focusing only on the monetary value of the buyback benefit, is compelling. However, when viewed in the context that Plaintiff alleges, namely, that she was given the right to receive the buyback benefit only if she retired, Plaintiff has presented sufficient facts upon which a reasonable fact finder could conclude that she suffered an adverse employment action related to the benefits of her employment. That is, a finder of fact could conclude that the conditional leave time buyback benefit offered to her was used to coerce her retirement, but that younger administrators received the same benefit without this condition.

Next, Defendants argue that, assuming Plaintiff can establish that she was treated differently from younger administrators, she fails to point to sufficient evidence from which a reasonable fact finder could conclude that consideration of Plaintiff's age was a motivation for Defendants' action. The Court agrees.

The District has offered as a legitimate, nondiscriminatory reason for the difference in Plaintiff's buyback benefit compared to other employees. The employer asserts that all of the other individuals to whom Plaintiff compares herself had different titles, performed different jobs, were hired at different times, received different amounts of base salary compensation, and negotiated their own individual employment contracts. Moreover, the employer asserts that Plaintiff's "individually-negotiated employment contract specified that her bank of unused accumulated sick leave could be cashed in upon retirement at a rate of 1/260 of salary, for a total amount not to exceed $20,000. (Sever Depo., p. 80). [And that] Ms. Sever's 1/260 rate was identical to the District's other management -confidential employees. (Sever Depo., p. 81, 82). The difference [compare to the identified administrators] was solely a matter of timing." This satisfies the employer's burden and shifts the burden back to Plaintiff to present evidence from which a finder of fact could conclude that age was a motivation for offering her a different buyback benefit than offered to other administrators. Plaintiff has not met this burden.

Plaintiff has not presented evidence indicating that she was similarly situated to the younger administrators who received the yearly buyback benefit. Further, Plaintiff's age discrimination claim is based solely on the allegation that the administrators to whom she compares herself were younger in age. However, the fact that other employees, even if younger, received a different benefit does not by itself establish that age was the motivation for the differentiation. Mattera v. JPMorgan Chase Corp., 740 F. Supp.2d 561, 575 (S.D.N.Y. 2010).*fn20 Plaintiff has provided little beyond her own conclusions and supposition from which a reasonable fact finder could conclude that age was a motivation for the differentiation in the contract terms. But Plaintiff's feelings and perceptions of being discriminated against "are not evidence of discrimination." Bickerstaff v. Vassar College, 196 F.3d 435, 456 (2d Cir. 1999)(citation omitted); see id. at 448.*fn21 Simply stated, Plaintiff has failed to carry her ultimate burden on the claim. See Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir.1998).*fn22 Accordingly, Defendant's motion is granted and the age discrimination claim related to the buyback benefit is dismissed.

Because the age discrimination claims are dismissed, the aiding and abetting claims against Defendant Stoner are also dismissed.


For the reasons set forth above, Defendants' motion for summary judgment [Doc. #17] is GRANTED in part and DENIED in part. The motion is granted inasmuch as Plaintiff's New York Human Rights Law age discrimination claims against the Board of Education of the Maine-Endwell Central School District, and the concomitant claims against Defendant Stoner asserting that he aided and abetted the allegedly discriminatory actions, are DISMISSED. The motion is denied in all respects.


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