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Claudio v. Mattituck-Cutchogue Union Free School Dist.

United States District Court, E.D. New York

July 24, 2013

ANTHONY M. CLAUDIO, Plaintiff,
v.
MATTITUCK-CUTCHOGUE UNION FREE SCHOOL DISTRICT, Defendant

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For plaintiff: Frank J. Blangiardo, Frank J. Blangiardo, Esq., Cutchogue, NY.

For defendant: Jeltje DeJong, Joshua S. Shteierman, and Kelly E. Wright, Devitt Spellman Barrett, LLP, Smithtown, NY.

OPINION

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MEMORANDUM AND ORDER

JOSEPH F. BIANCO, United States District Judge.

Plaintiff Anthony M. Claudio (" plaintiff" or " Claudio" ) filed the instant action against defendant Matttituck-Cutchogue Union Free School District (" defendant" or " District" ), alleging gender and age discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., the Americans with Disabilities Act, and the Age Discrimination in Employment Act (" ADEA" ), as well as under 42 U.S.C. § § 1981 and 1983, the Fourteenth Amendment to the Constitution, and New York laws against discrimination.

Plaintiff withdrew his federal claim under the Americans with Disabilities Act and his claims under New York State law. On September 29, 2011, the Court denied orally on the record defendant's motion for summary judgment on both plaintiff's ADEA claim and gender discrimination claim under Title VII; the Court granted the motion as to all other federal claims. The Court stated that a written opinion would follow, and the Court's analysis is contained in this Memorandum and Order.

The remaining claims -- namely, gender discrimination under Title VII and age discrimination under the ADEA -- were tried before a jury, commencing on October 9, 2012. On October 22, 2012, the jury returned a unanimous verdict for plaintiff on his age discrimination claim, finding that the District discriminated against plaintiff based upon his age in connection with its termination of his employment as a special education teacher. Regarding his gender discrimination claim, the jury returned a verdict in defendant's favor. With respect to damages, the jury awarded $70,000.00 as back pay damages, and one dollar in nominal damages, against the District.[1]

Presently before the Court are defendant's post-trial motions, as well as plaintiff's cross-motion for reinstatement of a position or, alternatively, for front pay and lost benefits. The cross-motion also includes a request for attorneys' fees and costs. Defendant's post-trial motions consist of: (1) a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b), in which defendant argues that plaintiff failed to present legally sufficient evidence showing that defendant's employment decision was pretextual, i.e., motivated by discriminatory animus, and (2) a motion for a new trial under Federal Rule of Civil Procedure 59 because (a) the verdict was against the weight of the evidence, and (b) plaintiff's counsel's improper conduct pervaded trial to such an extent that it improperly influenced the jury's verdict.

For the reasons that follow, with the exception of vacating the nominal damage award, defendant's Rule 50 and Rule 59 motions are denied in their entirety. Specifically, there was sufficient evidence from which a rational jury -- if it credited plaintiff's evidence -- could have found that plaintiff was terminated as a special education teacher on account of his age. As discussed more fully infra, there were several categories of evidence introduced at trial upon which the jury could have rationally based such a verdict.

First, plaintiff was age 47 at the time of his termination; he was replaced by an

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individual who was 25 years old. Second, there were several statements attributed to Superintendent James McKenna that, if credited and reasonably construed in plaintiff's favor, could support an age discrimination claim. These include the following: (1) plaintiff's wife testified that, after her husband was denied tenure, she inquired of Superintendent McKenna why this had occurred, and he responded, before walking away, that he " can't teach an old dog new tricks" (Tr. 543:19-544:8); (2) a board member, Janique Nine, testified that prior to the April 16, 2009 board Meeting, in which the decision to deny plaintiff tenure was made, Superintendent McKenna commented to Nine that they " were going in a new direction with special ed and that Mr. Claudio was, he had an old school style" (Tr. 523:12-19); (3) Barbara Smith, a teacher at Cutchogue East Elementary School and plaintiff's sister-in-law, testified that she saw Superintendent McKenna hand a pile of resumes, consisting of individuals to interview, to the employment committee, and this pile largely contained young, female applicants in it; and (4) Smith also testified that, on one occasion, Superintendent McKenna had expressed to her that he wanted to hire young people whom he could mold. (Tr. 201:23-203:7.) Third, there was evidence that Superintendent McKenna initially agreed that plaintiff should receive tenure, but that he then decided not to grant plaintiff tenure, electing instead to terminate plaintiff's employment. Fourth, not only did plaintiff contest at trial the validity of the performance reasons offered in support of Superintendent McKenna's termination decision, but plaintiff also introduced testimony from several witnesses, including two school board members, who believed that, based upon plaintiff's performance, plaintiff should have received tenure. Additionally, school principal Shawn Petretti testified that, at least initially, he supported the position that plaintiff should receive tenure, and also, told plaintiff that he believed plaintiff would receive tenure. Fifth, plaintiff presented the testimony of other witnesses -- including the school psychologist, the school guidance counselor coordinator, and a teaching assistant in the special education department -- that undermined the validity of one or more of the reasons articulated by Superintendent McKenna for plaintiff's termination. Lastly, Petretti testified that, in McKenna's eight years as Superintendent, Petretti was not aware of any male over 40 hired by McKenna who had received tenure. In short, when all of the evidence is viewed in the light most favorable to the nonmoving party, there was certainly more than sufficient evidence to permit a rational jury to find in plaintiff's favor on the age discrimination claim. Thus, there is no basis for relief under Rule 50.

With respect to the Rule 59 motion, although plaintiff's counsel engaged in courtroom antics and theatrics that were unprofessional and inappropriate, the Court has no reason to believe that counsel's conduct improperly prompted the jury to return a verdict in plaintiff's favor. There are several reasons for this conclusion. First, at times counsel's conduct was so clearly inappropriate and unprofessional that, if a rational juror were to have improperly considered such conduct in reaching a verdict, he or she would have been less likely to return a verdict for the plaintiff, not more likely. Second, counsel's antics primarily related to trivial and/or collateral issues in the case that could not possibly have influenced the jury's verdict. Third, when the Court warned counsel about certain behavior, counsel generally avoided repeating the same conduct. Fourth, the Court, sometimes sua sponte, gave extremely strong and specific instructions

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to the jury during the course of the trial to alleviate any potential prejudice to defendant from plaintiff's counsel's conduct; defendant never requested any additional relief during the trial (such as additional instructions, a mistrial, or other sanction). Finally, the fact that the jury found no liability on the gender discrimination claim illustrates that the jury was not blindly influenced by counsel's conduct when returning a verdict favorable to plaintiff. In sum, having presided over the entire trial (and having observed the evidence, the jury, and the conduct of plaintiff's counsel), the Court concludes that plaintiff's counsel's conduct did not unfairly influence the jury's verdict in any way. In fact, the Court believes that plaintiff did not prevail because of counsel's inappropriate conduct, but rather, prevailed despite such conduct. Accordingly, the Rule 59 motion is denied.

Finally, the Court requires supplemental briefing on the issues of reinstatement, front pay, and lost benefits before a decision may be made on such issues. Similarly, plaintiff's counsel shall submit supplemental documentation supporting the attorneys' fees and costs requested.

I. Procedural Background[2]

Plaintiff filed the complaint in this action on December 1, 2009. On February 4, 2011, defendant requested a pre-motion conference in anticipation of filing a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. The parties engaged in motion practice, and oral argument was heard on September 29, 2011. At the conclusion of oral argument, the Court granted in part and denied in part defendant's motion for summary judgment for the reasons set forth orally on the record; it also noted that a written memorandum and order would follow. In particular, the Court orally denied on the record defendant's motion for summary judgment on the ADEA claim and the gender discrimination claim under Title VII, but it granted the motion as to all other claims. The remaining claims were tried before a jury. Trial subsequently was held, beginning on October 9, 2012, and concluding on October 22, 2012. On October 22, 2012, the jury returned a unanimous verdict for plaintiff on his age discrimination claim, finding that the District had discriminated against plaintiff based upon his age in connection with its termination of his employment as a special education teacher. In regards to plaintiff's gender discrimination claim, the jury returned a verdict in defendant's favor. With respect to damages, the jury awarded $70,000.00 as back pay damages, and one dollar in nominal damages, against the District.

Following the jury's verdict, the Court set a briefing schedule for the parties' currently pending Rules 50(b) and 59 motions. Plaintiff also filed a cross-motion for reinstatement of a position or, alternatively, for front pay and lost benefits. The cross-motion also included a request for attorneys' fees and costs. These motions were fully submitted on January 31, 2013, and oral argument took place on February 18, 2013. Defendant's counsel also submitted a letter following oral argument with respect to the damages issues that were raised at oral argument. The Court has considered all of the parties' submissions.

II. Discussion

A. Rule 56 Summary Judgment Motion

On September 29, 2011, the Court denied orally on the record defendant's

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motion for summary judgment on both plaintiff's ADEA claim and gender discrimination claim under Title VII; the Court granted the motion as to the other federal claims that had not been withdrawn -- namely, the Section 1983 claim for violation of plaintiff's procedural due process rights and the retaliation claim under Title VII. The Court noted that a more detailed analysis would follow in a written opinion. That more detailed analysis is contained below.[3]

1. Standard of Review

The standard for summary judgment is well settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may only grant a motion for summary judgment if " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant " bears the burden of showing that he or she is entitled to summary judgment." Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). " A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). 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 party, and to eschew credibility assessments.'" Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)

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(summary judgment is unwarranted if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party" ).

Once the moving party has met its burden, the opposing party " 'must do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) (alteration in original). As the Supreme Court stated in Anderson, " [i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Indeed, " the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth " 'concrete particulars'" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)). Accordingly, it is insufficient for a party opposing summary judgment " merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (quoting Research Automation Corp., 585 F.2d at 33) (internal quotation mark omitted).

2. Section 1983 Claim

In support of its motion for summary judgment, defendant argued the following: (1) plaintiff did not have a property interest in continued employment as a probationary employee, and therefore could not assert a due process claim on that basis; and (2) because of the availability of an Article 78 proceeding, a procedural due process claim fails as a matter of law. As set forth below, the Court agreed with defendant that the due process claim could not prevail as a matter of law based upon the undisputed facts and, therefore, concluded that summary judgment on that claim was warranted.

In Board of Regents v. Roth, the Supreme Court held that procedural due process requirements " apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property ." 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (emphasis added). Property interests are determined and created by state laws that " secure certain benefits and that support claims of entitlement to those benefits." Id. at 577. Property interests arise in the employment context " only where the state is barred, whether by statute or contract, from terminating (or not renewing) the employment relationship without cause." S & D Maint. Co. v. Goldin, 844 F.2d 962, 967 (2d Cir. 1988). Thus, in order to establish a federal procedural due process claim, the plaintiff must first establish that he possesses a property right in his continued employment. See Bishop v. Wood, 426 U.S. 341, 345-47, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (holding that defendant did not deprive plaintiff of a property interest in continued employment).

It is well settled in New York that a probationary employee, unlike a permanent employee, has no property rights in his position and may be lawfully discharged without a hearing and without any stated specific reason. See McKenzie v. Jackson, 152 A.D.2d 1, 8, 547 N.Y.S.2d 120

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(2d Dep't 1989), aff'd 75 N.Y.2d 995, 556 N.E.2d 1072, 557 N.Y.S.2d 265 (1990); see also York v. McGuire, 63 N.Y.2d 760, 761, 469 N.E.2d 838, 480 N.Y.S.2d 320 (1984); Connor v. Bd. of Educ. of Bayport-Blue Point Union Free Sch. Dist., 184 A.D.2d 698, 698, 587 N.Y.S.2d 181 (2d Dep't 1992). Therefore, many federal and state courts in this Circuit have found that probationary employees are not subject to the same due process protection as permanent employees. See, e.g., Ryan v. Carroll, 67 F.Supp.2d 356, 361 (S.D.N.Y. 1999) (finding police officer to be a probationary employee not entitled to a due process hearing); Flood v. Cnty. of Suffolk, 820 F.Supp. 709, 712-14 (E.D.N.Y. 1993) (finding that police officer possessed no property right in her probationary position and that her resulting discharge presents no federal constitutional problems); York, 63 N.Y.2d at 761 (upholding discharge of probationary police officer without a hearing).

Plaintiff did not provide any evidence or cite to any state law or ordinance indicating that he is entitled to continued employment as a probationary employee. " A property interest in employment can, of course, be created by ordinance, or by an implied contract. In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law." Bishop, 426 U.S. at 344 (footnotes omitted) (refusing to find property interest where one is not created by state ordinance). As discussed above, New York law clearly does not provide a property right for probationary employees. Accordingly, in denying summary judgment, the Court determined that plaintiff's claim of violation of due process resulting from his termination, based upon a purported property interest in his continued employment, could not survive summary judgment.[4]

The Court also concluded that, even if the Court assumed arguendo that plaintiff could demonstrate the deprivation of his liberty interest, the plaintiff must also demonstrate that his liberty was deprived without due process of law. The Court found that plaintiff could not satisfy this component in this case as a matter of law because of the availability of an Article 78 proceeding.

New York law, pursuant to CPLR Article 78, provides a dismissed municipal employee with an avenue for challenging his termination as arbitrary and capricious and contrary to law. It is well settled that the availability of an Article 78 proceeding bars a municipal employee from maintaining a Section 1983 procedural due process claim. The availability of an adequate post-deprivation procedure for reviewing the propriety of the dismissal means that there has been no constitutional violation. See Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); see also Hellenic Am. Neighborhood Action Comm. v. City of N.Y., 101 F.3d 877, 882 (2d Cir. 1996) (" HANAC" ) (" Even if HANAC

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has a protectable property and liberty interest B on which we express no opinion B HANAC, because of the availability of an Article 78 proceeding, was not deprived of such property or liberty without due process of law." ); accord Campo v. N.Y.C. Emps. Ret. Sys., 843 F.2d 96, 101-03 (2d Cir. 1988). Article 78 proceedings have been held to be adequate post-deprivation procedures and they frequently function as name-clearing hearings. See, e.g., Blum v. Quinones, 139 A.D.2d 509, 510, 526 N.Y.S.2d 611 (2d Dep't 1988); Merhige v. Copiague Sch. Dist., 76 A.D.2d 926, 927, 429 N.Y.S.2d 456 (2d Dep't 1980).

In the instant case, plaintiff never brought an Article 78 proceeding in state court and did not set forth any basis for concluding that this available state remedy was inadequate. Where, as here, the plaintiff had available adequate process, he cannot be said to have been " deprived of due process simply because [he] failed to avail [himself] of the opportunity." HANAC, 101 F.3d at 881 (citation and internal quotation marks omitted). The Article 78 proceeding was available to plaintiff, and as discussed above, that availability means there is no constitutional violation. Accordingly, the Court concluded, even assuming arguendo that there was a property interest in this case, that the due process claim was not cognizable in this case because of an adequate remedy in the form of an Article 78 proceeding for any such deprivation.

In sum, for the reasons set forth above and on the record previously, summary judgment on the Section 1983 due process claim was warranted in defendant's favor.

3. Retaliation Claim

Plaintiff also appeared to have asserted a retaliation claim under Title VII. As set forth below, because there was no evidence in the record of any protected activity by plaintiff, the Court concluded that the retaliation claim could not survive summary judgment.

Title VII prohibits an employer from firing an employee in retaliation for having made a charge of discrimination. 42 U.S.C. § 2000e-3(a); see also N.Y. Exec. Law § 296(1)(e); N.Y.C. Admin. Code § 8-107(7). To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in a protected activity; (2) defendant was aware of that activity; (3) he suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. Distasio v. Perkin Elmer Corp., 157 F.3d 55, 66 (2d Cir. 1998); see also Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003).

Retaliation claims are similarly governed by the burden-shifting framework set out by the Supreme Court in McDonnell Douglas . Terry, 336 F.3d at 141. Although the burden that a plaintiff must meet at the prima facie stage is minimal, the plaintiff must proffer at least competent evidence of circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. See Cronin v. Aetna Life Ins., 46 F.3d 196, 204 (2d Cir. 1995). As set forth below, the Court found that plaintiff made out the prima facie case required by McDonnell Douglas .

The term " protected activity" refers to action taken to protest or oppose statutorily prohibited discrimination. See 42 U.S.C. § 2000e-3(a); see also Wimmer v. Suffolk Cnty. Police Dep't, 176 F.3d 125, 134-35 (2d Cir. 1999). Informal as well as formal complaints constitute protected activity. See Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). Moreover, to establish that his activity is protected, a plaintiff " need not prove the

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merit of his underlying discrimination complaint, but only that he was acting under a good faith, reasonable belief that a violation existed." Id.; see also Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir. 1989).

Defendant argued that plaintiff was not engaged in protected activity within the meaning of Title VII. The Court agreed. Plaintiff pointed to no evidence of any protected activity prior to his termination. In his opposition papers, plaintiff asserted that the 2009 termination was retaliation against plaintiff by McKenna for plaintiff having applied to a vacant social studies teaching position in 2003. ( See Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. & Supp. for Pl.'s Cross-Mot. (" Pl.'s Summ. J. Mem." ) at 14; see also Compl. ¶ 19 (describing alleged retaliation for applying for social studies position).) Plaintiff's application for a teaching position cannot, as a matter of law, constitute " protected activity" under Title VII for purposes of a retaliation claim.[5] Accordingly, because there was no evidence of any protected activity, the Court held that the retaliation claim could not survive summary judgment.[6][7]

4. Gender and Age Claims

Defendant also sought summary judgment on the age discrimination claim under the ADEA and the gender discrimination claim under Title VII. However, for the reasons set forth below, the Court denied summary judgment on those claims.

The same evidentiary framework is used to evaluate claims of discrimination based upon gender or age. See Byrnie, 243 F.3d at 101. To establish a prima facie case of age discrimination under the ADEA or gender discrimination under Title VII, a plaintiff must demonstrate the following: (1) she was within the protected class; (2) she was qualified for the position; (3) she was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. See Terry, 336 F.3d at 137-38 (citing Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001) (ADEA) and Collins v. N.Y.C. Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002) (Title VII)). Once plaintiff establishes a prima facie case, the burden shifts to the defendant to " 'articulate some legitimate, nondiscriminatory reason for the' termination." Patterson v. Cnty. of Oneida, 375 F.3d 206, 221 (2d Cir. 2004) (quoting O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996)). If the defendant carries that burden, " the burden shifts back to the plaintiff to demonstrate by competent evidence that 'the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for

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discrimination.'" Id. (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). " 'The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Id. (quoting Burdine, 450 U.S. at 253).

To meet this burden, the plaintiff may rely on evidence presented to establish his prima facie case as well as additional evidence. Such additional evidence may include direct or circumstantial evidence of discrimination. Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-101, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). It is not sufficient, however, for a plaintiff merely to show that she satisfies " McDonnell Douglas's minimal requirements of a prima facie case" and to put forward " evidence from which a factfinder could find that the employer's explanation . . . was false." James v. N.Y. Racing Ass'n, 233 F.3d 149, 153 (2d Cir. 2000). Instead, the key inquiry is whether there is sufficient evidence in the record from which a reasonable trier of fact could find in favor of plaintiff on the ultimate issue, that is, whether the record contains sufficient evidence to support an inference of discrimination. See id. at 153-54; Connell v. Consol. Edison Co. of N.Y., Inc., 109 F.Supp.2d 202, 207-08 (S.D.N.Y. 2000).

Moreover, pursuant to the Supreme Court's decision in Gross v. FBL Financial Services, Inc., a claimant bringing suit under the ADEA must demonstrate that age was not just a motivating factor behind the adverse action, but rather the " but-for" cause of it. 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Title VII, on the other hand, does authorize a " mixed motive" discrimination claim. See id. at 177 n.3 (" Congress amended Title VII to allow for employer liability when discrimination was a motivating factor for any employment practice, even though other factors also motivated the practice, but did not similarly amend the ADEA. We must give effect to Congress' choice." (internal citations and quotation marks omitted)).

With respect to the age discrimination claim, because the Court analyzes infra the Rule 50 motion under the same McDonnell Douglas standard, the analysis of the evidence that supported the Court's denial of the Rule 56 summary judgment motion is the same analysis that is contained herein with respect to the Rule 50 motion. Thus, for the reasons stated infra regarding the Rule 50 motion, the Rule 56 motion also was denied.

With respect to the gender discrimination claim, in addition to the evidence discussed infra which (if credited) undermined the validity of the articulated non-discriminatory reason, there was other evidence in the record that led the Court to conclude that such evidence cumulatively created an issue of fact on whether the articulated reason for denial of tenure was a pretext for gender discrimination.[8] However, because that ruling is now moot

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in light of the jury's verdict in favor of defendant on that claim, the Court will not engage in a further, more detailed analysis of that decision.

B. Rule 50(b) Motion for Judgment as a Matter of Law

1. Standard of Review

The standard governing motions for judgment as a matter of law pursuant to Rule 50 is well-settled. A court may not properly grant judgment as a matter of law under Rule 50 against a party " unless the evidence, viewed in the light most favorable to the nonmoving party, is insufficient to permit a reasonable juror to find in his favor." Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007) (citing Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998)). Generally, a court reviewing such a motion must defer to all credibility determinations and reasonable inferences that the jury may have drawn at trial. See Frank Sloup & Crabs Unlimited, LLC v. Loeffler, 745 F.Supp.2d 115, 120 (E.D.N.Y. 2010). That is, a court considering a Rule 50 motion " may not itself weigh the credibility of witnesses or consider the weight of the evidence." Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 145 (2d Cir. 2001) (quoting Galdieri-Ambrosini, 136 F.3d at 289); see also Playtex Prods., Inc. v. Procter & Gamble Co., No. 02 Civ. 8046 WHP, 2004 WL 1658377, at *2 (S.D.N.Y. July 26, 2004) ( " A Rule 50(b) motion cannot be granted 'if, drawing all reasonable inferences in favor of the nonmoving party and making all credibility assessments in his favor, there is sufficient evidence to permit a rational juror to find in his favor.'" (quoting Sir Speedy, Inc. v. L& P Graphics, Inc., 957 F.2d 1033, 1039 (2d Cir. 1992))).

Thus, judgment as a matter of law is appropriately granted where " (1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it]." Advance Pharm., Inc. v. United States, 391 F.3d 377, 390 (2d Cir. 2004) (alterations in original) (quoting Galdieri-Ambrosini, 136 F.3d at 289); see also Kinneary v. City of N.Y., 601 F.3d 151, 155 (2d Cir. 2010) (same); This is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998) (stating that a court assessing a Rule 50 motion must consider whether " 'the evidence is such that, without weighing the credibility of witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [people] could have reached'" (quoting Cruz v. Local Union No. 3, Int'l Bd. of Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994))). In other words, this Court may only grant defendant's Rule 50(b) motion " if it cannot find sufficient evidence supporting the jury's verdict." Playtex Products, 2004 WL 1658377, at *2; see also Black v. Finantra Capital, Inc., 418 F.3d 203, 209 (2d Cir. 2005) ( " A court evaluating [] a motion [for judgment as a matter of law] cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury." ). For this reason, a party moving to set aside a jury verdict must clear " a high bar." Lavin-McEleney v. Marist College, 239 F.3d 476, 479 (2d Cir. 2001).

2. Defendant's Rule 50(b) Motion

Defendant moves for judgment as a matter of law on the grounds that the

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evidence presented at trial was insufficient to establish that plaintiff's termination was a result of age discrimination. (Def.'s Mem. of Law in Supp. of Rule 50 & 59 Mots. (" Def.'s Mem." ) at 2.) As set forth below, the Court disagrees and concludes that, when the evidence is viewed in the light most favorable to plaintiff, there was more than sufficient evidence from which a rational jury could find age discrimination in connection with the denial of tenure and termination of plaintiff's employment from the School District.

The Second Circuit has stated that, " [i]n reviewing a Rule 50 challenge to a verdict in favor of [a] plaintiff[] on a claim of age discrimination, the three-step McDonnell Douglas analysis applicable to motions for summary judgment provides useful guidance." Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005). Under the McDonnell Douglas framework, to establish a prima facie case of age discrimination, a plaintiff must present evidence demonstrating that " (1) [he] was within the protected class; (2) [he] was qualified for the position; (3) [he] was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination." Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir. 2009); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Where a plaintiff sets forth a prima facie case, " 'a rebuttable presumption of discrimination arises and the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment decision.'" DeFina v. Meenan Oil Co., Inc., No. 10-cv-5068(JFB)(ETB), 924 F.Supp.2d 423, 2013 WL 596622, at *8 (E.D.N.Y. Feb. 15, 2013) (quoting Stratton v. Dep't for the Aging for the City of N.Y., 132 F.3d 869, 879 (2d Cir. 1997)). This is intended " 'to force the defendant to give an explanation for its conduct, in order to prevent employers from simply remaining silent while the plaintiff founders on the difficulty of proving discriminatory intent.'" Id. (quoting Fisher v. Vassar Coll., 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc)). If an employer articulates a nondiscriminatory reason for its actions, it will have successfully rebutted the presumption of discrimination, and the ball will return to plaintiff's court " to show, without the benefit of any presumptions, that 'a reasonable jury could conclude by a preponderance of the evidence that [his] age was a " but for" cause' for the adverse action." Id. (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010)). In sum, " [t]o establish a disparate-treatment claim under the plain language of the ADEA, [] a plaintiff must prove that age was the 'but-for' cause of the employer's adverse decision." Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).

Here, defendant does not contest that plaintiff satisfied his prima facie burden as to age discrimination. Instead, the focus of defendant's argument is that it articulated a legitimate reason for its termination decision, and that plaintiff has not shown by a preponderance of the evidence that defendant's proffered reasons for terminating plaintiff were simply a pretext for discrimination. (Def.'s Mem. at 3.) This is so because, according to defendant, the evidence presented at trial does not establish that, but-for plaintiff's age, plaintiff would have received tenure.

In particular, defendant challenges the following evidence, discussed in greater detail infra . Defendant argues that it articulated a legitimate reason for plaintiff's termination, namely, that plaintiff's extra year of probation had expired, and he was a " low average" special education teacher who could not teach to the different levels of his special education students' abilities.

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( See Def.'s Mem. at 6-7.) Further, defendant contends that the three grounds which plaintiff asserts illustrate the disparate treatment he received on account of his age (namely, parking lot duty, receiving a step decrease[9] following his placement as a full-time special education teacher, and having to enter into a JUUL agreement[10] are not supported by evidence showing pretext. ( See id. at 3-4.) For these reasons, defendant contends that this Court should grant it judgment as a matter of law because plaintiff has failed to meet its evidentiary burden as to pretext.

As often is the case in discrimination suits, plaintiff here does not produce direct evidence of discriminatory bias. See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir. 2000) (" [A]n employer who discriminates against its employee is unlikely to leave a well-marked trail, such as making a notation to that effect in the employee's personnel file." ). However, to be successful in such a suit, plaintiff need not present direct evidence of discrimination. See Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir. 1997) (" Direct evidence is not necessary, and a plaintiff charging discrimination against an employer is usually constrained to rely on the cumulative weight of the circumstantial evidence." ). In Reeves v. Sanderson Plumbing Products, Inc., the Supreme Court made clear that " a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (emphasis added). Thus, in determining whether there is sufficient evidence of pretext to support a jury verdict in plaintiff's favor, a court must " examin[e] the entire record to determine whether the plaintiff could satisfy his 'ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves, 530 U.S. at 143) (internal quotation marks omitted). That is, a court reviewing such evidence must consider " 'the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports [or undermines] the employer's case and that properly may be considered on a motion for judgment as a matter of law.'" Shannon v. Fireman's Fund Ins. Co., 156 F.Supp.2d 279, 289 (S.D.N.Y. 2001) (quoting Reeves, 530 U.S. at 149-50).

Here, viewing the evidence in the light most favorable to plaintiff, the non-moving party, and giving him the benefit of all reasonable inferences, the Court concludes that the evidence presented at trial is sufficient to support the jury's finding that defendant discriminated against plaintiff on account of his age when it denied him tenure or further employment with the District, and that plaintiff's age was the " but for" cause of the employment

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decision. Stated differently, the Court " cannot say that the jury's findings here were the result of 'sheer surmise and conjecture' or that fair minded persons could not have arrived at this verdict." Stratton, 132 F.3d at 879 (quoting Logan v. Bennington Coll. Corp., 72 F.3d 1017, 1022 (2d Cir. 1995)).

a. Evidence Supporting Finding that Defendant Discriminated Against Plaintiff Because of His Age[11]

Plaintiff presented the testimony of at least fifteen witnesses and introduced documentary evidence to establish that plaintiff, through the decisions of Superintendent James McKenna (" Superintendent McKenna" or " McKenna" ), was a victim of age discrimination. Based upon that testimony and documentary evidence, there were several categories of evidence which, if credited and construed most favorably to plaintiff, collectively provided a more than sufficient basis for a reasonable jury to find in plaintiff's favor.

As a threshold matter, McKenna acknowledged that, although the board of Education conducts the final approval as to a hire, his recommendation is an important, determinative factor in the process. ( See Tr. 403:11-15.) Moreover, when questioned as to whether he had hired anyone over the age of 40 since his appointment as superintendent in 2006, McKenna stated " [t]he answer is no, I did not." (Tr. 402:23-24; see also Tr. 403:3-5 (Q: I'm sorry, did you hire anyone over 40 since you've been superintendent? A: The answer to that would be no.).) Shawn Petretti (" Petretti" ), the principal, also testified that, in McKenna's eight years as Superintendent, Petretti was not aware of any male over 40 hired by McKenna who has attained tenure. (Tr. 310:13-17.) Of the male teachers whom McKenna hired following his appointment as superintendent, McKenna conceded that their ages were younger (specifically, 23, 24, and 25), and that the individual hired to replace plaintiff following his termination (Paul Johnson) was 25 years old. (Tr. 407:14-408:3; see also Tr. 378:11-19; Tr. 462:7-13.)[12]

Although not determinative on its own, see Coleman v. Prudential Relocation, 975 F.Supp. 234, 242 (W.D.N.Y. 1997) (noting case law concluding that a terminated employee's replacement by a younger person, standing alone, is insufficient to show pretext), the fact that plaintiff's replacement was significantly younger than him is a factor (among others) from which the jury could have inferred age discrimination, see O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996) (stating that " [t]he fact that a replacement is substantially younger than the plaintiff is a far more reliable

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indication of age discrimination" ); Charrette v. S.M. Flickinger Co., 806 F.Supp. 1045, 1058-59 (N.D.N.Y. 1992) ( " Replacement by a younger employee, in connection with the other McDonnell Douglas criteria, although certainly not the only means by which an inference of discrimination may be shown, allows for an inference of discrimination); see also Haskell v. Kaman Corp., 743 F.2d 113, 119 n.1 (2d Cir. 1984) (same); Strohmeyer v. Int'l Broth. of Painters & Allied Trades, 989 F.Supp. 455, 459 (W.D.N.Y. 1997) (finding as a relevant factor in summary judgment analysis of age discrimination claim the fact that plaintiff's alleged replacement, following plaintiff's termination, was younger than plaintiff).

Second, there were several statements, attributed to Superintendent McKenna and concerning plaintiff, which, in the context of the other evidence in the case, could be reasonably construed by a jury as constituting evidence of age discrimination. For instance, plaintiff's wife, Mary Claudio (" M. Claudio" ), testified that sometime around April 2009, after plaintiff learned that he would not be receiving tenure, McKenna made a comment to M. Claudio " about [plaintiff] being an old dog and teaching old dogs new tricks." (Tr. 541:17-18.) Specifically, M. Claudio testified:

Q: Now I'm going to refer you -- well, you testified that Mr. McKenna made a statement about teaching an old dog new tricks. ...

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