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Margaret Whitting v. Locust Valley Central School District

October 22, 2012

MARGARET WHITTING,
PLAINTIFF,
v.
LOCUST VALLEY CENTRAL SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

The Plaintiff Margaret Whitting ("Whitting" or "the Plaintiff") commenced this action against Locust Valley Central School District ("LVCSD" or "the Defendant") for age discrimination under both federal and state law. Presently before the Court is the Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P. 56"). For the reasons set forth below, the motion is granted.

I. BACKGROUND

All of the following facts are undisputed unless otherwise noted.

Whitting was born in June 1965 and has a Bachelor's degree in Elementary Education; a Master's degree in Special Education; and a certification in Literacy. She is currently 46 years old. She was hired by LVCSD when she was 40 years of age for a part-time special education teaching position in the Defendant's middle school for the 2005--2006 school year. At the time she interviewed, Whitting knew that the position was for a duration of only one year. During the 2005--2006 school year, Whitting's job performance was evaluated by Dr. John Castronova, her immediate supervisor, and Matthew Sanzone, the middle school principal. In their observation reports, Dr. Castronova and Mr. Sanzone noted good practices, but also included recommendations for improvement.

In the Spring of 2006, the Plaintiff applied for a probationary track position for the 2006-- 2007 school year. The Defendant considers "probationary track" to be synonymous with "tenure track", though the Plaintiff disputes this. Regardless, as the Court sees no legal significance of either term, the Court will use these two terms interchangeably. Whitting interviewed with three hiring committees for the 2006--2007 probationary track position. Several of the individuals on these committees were over 40 years of age. (See Def. 56.1 ("The third committee consisted of Richard Hirt . . . Plaintiff describes Mr. Hirt as being in his early sixties at the time.").) The Plaintiff did not receive the 2006--2007 tenure track position. Instead, the position was offered to Michelle Maltempi, who was in her early twenties but arguably more qualified. The Plaintiff believes that her age was a factor as to why she did not receive the position, although she never told anyone that was how she felt.

Whitting was then offered, and accepted, a position as a leave replacement high school education teacher with LVCSD for the 2006--2007 school year. Kerri Insardi and Samantha Jones, who were approximately 23 years old and 24 years old respectively at the time, were also offered leave replacement positions with LVCSD and not probationary track positions. During the 2006--2007 school year, the Plaintiff's supervisor was again Dr. Castronova. He observed the Plaintiff's performance and completed an evaluation. In this report, he made several recommendations for improvement. He also completed a probationary teacher performance evaluation, making both positive and negative comments.

The Plaintiff again applied for a tenure track special education position for the 2007-- 2008 school year. The Plaintiff interviewed with several committees but ultimately did not receive the position. Whitting was later told by Dr. Castronova that the reason she was not offered the job was because she did not interview well. The position was given to Kristy Klug, who had already obtained tenure in New York State while working in a different school district. Klug was approximately thirty years old at the time. The Plaintiff believes that she was also denied this position due to her age, and she consulted her union representative, Gabby Harrington, about being denied a tenure track position. However, in her discussion, she did not specify anything regarding age or age discrimination.

Whitting was again offered, and accepted, a position as a leave replacement high school education teacher with LVCSD for the 2007--2008 school year. Her performance during that year was again evaluated by Dr. Castronova.

In June 2008, Whitting once more applied for a tenure track position for the 2008--2009 school year. The Plaintiff interviewed with several committees in the Spring of 2008, but did not get the position at that time. Whitting was eventually told by Dr. Castranova that the reason she did not get the position was because she was not dually certified, meaning to be certified in special education as well as a content area. The Plaintiff does not contest that she is only certified in literacy beyond special education, which is not a content area. On the other hand, the Plaintiff's affidavit states that the posting for the position required an individual who was either dually certified or highly qualified. Although the Plaintiff admits she was not dually certified at the time, she claims that she was highly qualified for the position. Whitting also emphasizes that she was working towards a certification in Science, though she never completed the certification.

Finally, in August 2008, Whitting was offered, and accepted, a tenure track special education position with LVCSD for the 2008--2009 school year. The Plaintiff had a new set of supervisors for the 2008--2009 school year, including Lori Saland, who became Assistant Director of Special Education. Saland observed the Plaintiff in September 2008 and had several recommendations for Whitting's performance, as well as many positive remarks. Plaintiff's other observations throughout the school year similarly contained both positive and negative comments. At the midway point in the school year, January 2009, one of the Plaintiff's supervisors advised her that she may not receive tenure at the end of the school year.

On March 19, 2009, the Plaintiff received an email from the Secretary to the Assistant Superintendent, requesting that the Plaintiff contact her in order to schedule an appointment for a portfolio review. (Pl. Ex. E.) A portfolio review is a tool utilized by school administrators to assess the capabilities of teachers that may potentially qualify for tenure. Whitting claims that the portfolio review was scheduled for March 25, 2009, but that a day prior, she was informed that the review was cancelled. She was told she would be contacted about rescheduling the appointment, but never received a call to do so.

On March 30, 2009, an interoffice memorandum was sent from an individual named Martin Lupson to Dr. Anna Hunderford, the new superintendent, entitled "Update on Probationary Staff". This memorandum detailed three staff members who were not being recommended for tenure, and four staff members who were being recommended for a fourth year of probationary employment, including the Plaintiff. According to the Defendant, a fourth year is offered to a teacher when the District's administration is not prepared to offer a teacher tenure based upon demonstrated performance, but would like the opportunity to spend more time with the teacher.

Of the three staff members who were not being recommended for tenure, one was 49 years old, one was 31 years old, and one was 29 years old. Thus, two of the three staff members denied tenure were under 40 years old and younger than the Plaintiff. As for the other three staff members who were recommended for a fourth year of probationary employment along with the Plaintiff, one was 51 years old, one was 29 years old, and one was 56 years old. Thus, two of the teachers awarded a fourth probationary year were older than the Plaintiff, and one was younger than the Plaintiff. There were six staff members who were awarded tenure at the conclusion of the 2008--2009 school year. Of these six staff members, one was approximately 48 years old and was therefore older than the Plaintiff.

The process for tenure is as follows. The superintendent relies upon the recommendations of the teacher's immediate supervisor, the teacher's principal, and the Assistant Superintendent for Curriculum and Instruction, in order to make the decision whether to recommend a teacher for tenure. All of the administrators involved in the recommendation process must be in agreement in order for a teacher to be recommended for tenure. The superintendent makes the final recommendation to the Board of Education.

The parties do not dispute that there was a disagreement between Principal Dr. Kieran McGuire, Assistant Superintendent Ms. Judith Marino, Assistant Superintendent for Human Resources and Management Services Martin Lupson, and Assistant Director of Special Education and Pupil Services Lori Saland, concerning the Plaintiff's suitability for tenure at the end of the 2008--2009 school year. Moreover, there is no contention that all of the administrators involved in the recommendation process must be in agreement in order for a teacher to be recommended for tenure. Saland stated in her affidavit that there was a disagreement amongst the four relevant administrators----herself, McGuire, Marino, and Lupson----and therefore it was recommended to Dr. Anna Hunderfund, the Superintendent, that the Plaintiff receive a fourth year of probationary appointment in order to further evaluate her candidacy for tenure.

Although oddly contradictory to the core of the Plaintiff's case, the Defendant claims, and the Plaintiff does not dispute, that the collective decision to recommend the Plaintiff for an additional year of probationary employment, as opposed to tenure, was not based upon her age. In fact, LVCSD contends that a teacher's age is never discussed when evaluating candidacy for tenure.

According to the Defendant, on April 1, 2009, the Plaintiff was officially informed at a meeting with her supervisors that she would not be recommended for tenure because of the new administration, but that the District would support a request for a fourth probationary year. On the other hand, the Plaintiff contends that at this meeting she was merely advised that she was going to be required to teach a fourth year with the District in the probationary track, and that she needed to sign a "Juul Agreement" to that effect or resign her position. A "Juul Agreement" is a contract between an educator such as Whitting and her appointing authority such as LVCSD, which extends the educator's probationary period rather than terminate the educator at the end of his or her probationary period for not completing her probationary period satisfactorily. At the April 1, 2009 meeting, the Plaintiff agreed to a fourth year of probation. However, at that time, she was not given a copy of the agreement or a time frame in which it needed to be reviewed and signed. (Pl. Aff. ¶ 41.)

Martin Lupson sent the Plaintiff the Juul Agreement via email on the next day, Thursday, April 2, 2009, and she then had an opportunity to review it. Lupson testified that he expected to get the signed agreement back by the following Monday, because he had deadlines. However, Whitting argues that she was "not able to fully understand the agreement in the short amount of time that she was given". (Pl. 56.1 at ¶ 174.) The Defendant claims, without citing to any evidentiary support, that the same Juul Agreement was sent to all four teachers that were being recommended for a fourth year of probationary employment.

After Whitting read the Juul agreement, she changed her mind about agreeing to the fourth year of probationary teaching. She went to her union representative, Gaby Harrington, to discuss the contents of the agreement. The Defendant contends that the Plaintiff was dissatisfied with the tone of the first paragraph, which indicated that it was the intention of the superintendent "not to recommend [the Plaintiff's] appointment to tenure based upon [her] performance to date." (Ex. D., 165). The Plaintiff maintains that she was not comfortable with the language in the last paragraph, not the first, but that in any event, she felt that the process was moving too quickly and that she did not feel comfortable signing the Juul Agreement under such "distress." While LVCSD contends that the Plaintiff could have obtained more time to sign the agreement, the Plaintiff disputes that she was aware that this was a possibility. There is a factual dispute over whether someone from the District referred the Plaintiff to another person to discuss the contents of the agreement. The Defendant claims that someone from LVCSD told the Plaintiff she could call "Steve", the "labor relations guy". The Plaintiff does not contest that she did not ask anyone at LVCSD for additional time to consider the agreement.

As mentioned above, the Plaintiff claims that she was told by the Defendant to sign the agreement or resign the position. Therefore, the Plaintiff chose to resign because she refused to sign the agreement. Whitting submitted her letter of resignation on April 6, 2009, effective June 25, 2009.

There is no documentation or evidence that supports the Plaintiff's claim that anyone in the district, including Lupson, would want to discriminate against her because of her age. However, the Plaintiff is of the belief that as a general matter, hiring a younger and less experienced individual is less expensive because they might not have a Master's degree or the years of teaching experience. Accordingly, the Plaintiff can identify a potential motive for age discrimination by the District, but cites no evidence whatsoever to support its existence.

II. DISCUSSION

A. Legal Standards

1. Summary Judgment

It is well-settled that summary judgment under the provisions of Fed. R. Civ. P. 56(c) is proper only "if the pleadings, depositions, answers to interrogatories, 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 judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" within the meaning of Fed. R. Civ. P. 56 when its resolution "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). An issue is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

In determining whether an issue is genuine, "[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) (per curiam), and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that ...


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