Winslow v. Pulaski Academy and Central School District

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

SHARI WINSLOW,

Plaintiff,

v. 6:17-CV-83

(FJS/ATB)

PULASKI ACADEMY and CENTRAL

SCHOOL DISTRICT; PULASKI

ACADEMY BOARD OF EDUCATION; and

BRIAN HARTWELL individually and in his official

capacity as Superintendent of Schools,

Defendants.

APPEARANCES OF COUNSEL

GATTUSO & CIOTOLI, PLLC STEPHEN CIOTOLI, ESQ.

The White House

7030 East Genesee Street

Fayetteville, New York 13066

Attorneys for Plaintiff

BOND, SCHOENECK & KING, PLLC CURTIS A. JOHNSON, ESQ.

350 Linden Oaks JEFFREY F. ALLEN, ESQ.

Suite 310 JOSEPH S. NACCA, ESQ.

Rochester, New York 14625

Attorneys for Defendants

SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Shari Winslow (“Plaintiff”), the former Director of Special Services at Pulaski Academy

and Central School District (“Defendant District”), brought this action based on gender and age

discrimination against Defendant District, its Board of Education (“Defendant Board”), and its

Superintendent of Schools (“Defendant Hartwell”) seeking compensatory damages, attorney’s

fees, and costs. See generally Dkt. No. 1, Compl. Pending before the Court is Defendants’

motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See

Dkt. No. 34.

II. BACKGROUND

Defendant District hired Plaintiff as the Director of Special Services on July 1, 2005.

See Dkt. No. 1 at ¶ 11. She served in that capacity for ten years, having earned tenure and a

promotion to Director of Special Services, Assessment and Data. See id. In September of

2014, Defendant District hired Defendant Hartwell as Superintendent of Schools. See id. at

¶ 14. Plaintiff contends that, immediately upon taking the position, Defendant Hartwell

subjected her to hostile and offensive conduct, including yelling at her in the workplace in front

of colleagues, demeaning her input, reducing or refusing to allow her to perform her job duties

and responsibilities, and making fundamental changes to the essential elements of her job

without prior notice or good cause. See id. at ¶ 15. Defendant Hartwell claims that he had

learned of complaints and criticisms of Plaintiff’s job performance from numerous sources soon

after he started. See Dkt. No. 34-7, Defs’ Stmt. of Material Facts, at ¶ 5. Plaintiff, to the

contrary, alleges that she received excellent performance evaluations from her superiors

throughout her employment and maintained an “impeccable” record of accomplishments. See

Dkt. No. 1 at ¶ 12.

Plaintiff alleges that Defendant Hartwell’s hostility towards her continued into early

March 2015, when the events leading to this lawsuit culminated. According to Defendants, on

March 2, 2015, Plaintiff assumed the responsibility for personally overseeing a new student

with special needs. See Dkt. No. 34-7, Defs’ Stmt. of Material Facts, at ¶ 45.1 During that

school day, the student ran away from Lura M. Sharp Elementary School and was “pursued

through the streets” by school personnel. See id. at ¶¶ 46, 49. The elementary school principal

allegedly emailed Defendant Hartwell that day about the student escaping from school while

under Plaintiff’s supervision. See id. at ¶¶ 47-48.

By happenstance, around 11:00 a.m. on the next day, March 3, 2015, Plaintiff finally

complained about Defendant Hartwell’s allegedly abusive conduct to Sheilla Roth, Defendant

District’s Business Administrator and Title IX Coordinator. See Dkt. No. 1 at ¶ 19. According

to Ms. Roth, Plaintiff stated that she felt Defendant Hartwell was “bullying” her because she

was the “highest paid administrator” in Defendant District. See Dkt. No. 34-2, Roth Decl., at

¶ 6. Ms. Roth reported that conversation to Defendant Hartwell at some point over the next few

days, though she could not recall precisely when. See id. at ¶ 11.

Later that very same day, March 3, 2015, Ms. Roth witnessed Plaintiff “yelling” into the

phone at a parent. See Dkt. No. 34-6, Roth Depo, at 23:15-25:7; see also Dkt. No. 34-1,

Hartwell Decl., at ¶ 41. Defendant Hartwell stated that Ms. Roth informed him via email at

approximately 2:57 p.m. of a “loud conversation” that she overheard with the parent of a

student. See Dkt. No. 34-1 at ¶ 41 (citing Dkt. No. 34-1, Ex. H).

The next day, March 4, 2015, Defendant Hartwell and Ms. Roth allegedly confronted

Plaintiff together in her office. See Dkt. No. 1 at ¶ 21. Defendant Hartwell allegedly threatened

Plaintiff that he would bring § 3020-a charges against her2; and, Plaintiff claims, he told her to

1 Plaintiff denies that she had sole responsibility to oversee the new student personally. See

Dkt. No. 35-3, Pls Response to Defs’ Stmt. of Material Facts, at ¶¶ 45-50.

2 This statement references N.Y. Educ. L. § 3020-a, which establishes the procedure for

disciplining tenured teachers and administrators.

“get a lawyer.” See id. at ¶ 22. Additionally, at that time, Defendant Hartwell placed Plaintiff

on “administrative leave”; and Plaintiff alleges that he and Ms. Roth “publicly removed [her]

from [Defendant] District premises in front of students and staff and ordered her to remain off

school property.” See id. at ¶¶ 23-24.

Defendant Hartwell contends that he first learned of Plaintiff’s March 3rd conversation

with Ms. Roth regarding his alleged harassment on March 5, 2015 – the day after he placed

Plaintiff on administrative leave. See Dkt. No. 34-7 at ¶ 106. Plaintiff denies this, alleging that

Ms. Roth told Defendant Hartwell about her complaints either the same day, after she spoke to

Plaintiff, or in the morning before Plaintiff was placed on administrative leave. See Dkt. No.

35-3, Pl’s Response to Defs’ Stmt. of Material Facts, at ¶ 106. Plaintiff thus claims that she was

placed on administrative leave because she complained to Ms. Roth; and Defendants claim that

she was placed on administrative leave to investigate the incident with the student and parent.

On April 6, 2015, approximately one month after being placed on administrative leave,

Plaintiff received a letter from Defendant Hartwell indicating that he was going to make a

proposal to Defendant Board the next day, April 7, 2015, that her position as Director of Special

Services be abolished. See Dkt. No. 1 at ¶ 27 (citing Dkt. No. 1, Ex. C). Defendant Board

subsequently voted to abolish Plaintiff’s position, and her employment was terminated as of

June 30, 2015. See id. at ¶¶ 28, 30. (citing Dkt. No. 1, Ex. D). After abolishing the Director of

Special Services position, Defendant Board created a new position, the Executive Director of

Academic and Instructional Excellence. See Dkt. No. 34-7 at ¶ 33. Due to “budget

constraints,” Defendant District chose to eliminate one administrative position in order to

implement the new one it intended to create. See id. at ¶ 34.

Plaintiff alleges that she suffered harm including monetary damages, lost wages,

physical and psychological harm, emotional distress, and damage to her professional reputation

as a result of Defendants’ actions. See Dkt. No. 1 at ¶¶ 41, 47, 53, 58, 64, 69, 75, 82, 91. She

filed her complaint in this action on January 25, 2017, alleging ten causes of action. See

generally Dkt. No. 1. After the Court granted in part and denied in part Defendants’ motion to

dismiss, see generally Dkt. No. 18, Memorandum-Decision and Order, the following claims

remain:

(1) Plaintiff’s first cause of action for gender discrimination pursuant to Title VII against

Defendants District and Board;

(2) Plaintiff’s third cause of action for retaliation based on gender pursuant to Title VII

against Defendants District and Board;

(3) Plaintiff’s fifth cause of action for retaliation based on age pursuant to the Age

Discrimination in Employment Act (“ADEA”) against Defendants District and Board;

(4) Plaintiff’s eighth cause of action for gender discrimination and retaliation based on age

and gender in violation of the Equal Protection Clause of the Fourteenth Amendment

and pursuant to 42 U.S.C. § 1983 against all Defendants; and

(5) Plaintiff’s ninth cause of action for deprivation of a protected property interest in

violation of the Due Process Clauses of the Fifth and Fourteenth Amendments and

pursuant to 42 U.S.C. § 1983 against all Defendants.

See Dkt. No. 18 at 22-23.

III. DISCUSSION

A. Legal standard

Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment.

Under this Rule, the entry of summary judgment is warranted “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). When deciding a summary judgment motion, a court must resolve

any ambiguities and draw all reasonable inferences in a light most favorable to the nonmoving

party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citation omitted).

B. Plaintiff’s Title VII gender discrimination claim

Employment discrimination cases are analyzed using the “McDonnell Douglas test,” a

three-stage, burden shifting framework established in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). Under the “McDonnell Douglas test,” “a plaintiff must first establish a prima

facie case of discrimination by showing that: ‘(1) she is a member of a protected class; (2) she is

qualified for her position; (3) she suffered an adverse employment action; and (4) the

circumstances give rise to an inference of discrimination.’” Vega v. Hempstead Union Free

Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015) (quoting Weinstock v. Columbia Univ., 224 F.3d 33,

42 (2d Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817)).

After a plaintiff has established a prima facie case, “a presumption arises that more likely

than not the adverse conduct was based on the consideration of impermissible factors.” Id.

(citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S. Ct. 1089, 67 L. Ed.

2d 207 (1981)). At that point, the burden “shifts to the employer to ‘articulate some legitimate,

nondiscriminatory reason’ for the disparate treatment.” Id. (citing McDonnell Douglas, 411

U.S. at 802, 93 S. Ct. 1817). “If the employer articulates such a reason for its actions, the

burden shifts back to the plaintiff to prove that the employer’s reason ‘was in fact pretext’ for

discrimination.” Id. (citing McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. 1817; Graham v.

Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000) (“If such a reason is proffered, the burden

shifts back to the plaintiff to prove that discrimination was the real reason for the employment

action”)).

1. Adverse employment action

The parties do not dispute that Plaintiff is a woman; and, thus, she is a member of a

protected class, nor do they dispute that she was qualified for her position with Defendant

District. See Dkt. No. 35, Pl’s Memorandum in Opposition, at 11. Instead, the parties focus on

the third and fourth elements of the McDonnell Douglas test.

Courts have held that a plaintiff suffers an adverse employment action if she endures a

materially adverse change in the terms and conditions of her employment, such as “termination

of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title,

a material loss of benefits, significantly diminished material responsibilities,” “a

disproportionally heavy workload,” or “other indices unique to a particular situation.” Vega,

801 F.3d at 85 (quoting [Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.

2000)]; Feingold [v. New York], 366 F.3d [138,] 152-53 [(2d Cir. 2004)]). Further, an adverse

employment action must be “’more disruptive than a mere inconvenience or an alteration of job

responsibilities.’” Vega, 801 F.3d at 85 (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.

2003) (internal quotation marks omitted)).

Defendants concede that Plaintiff suffered an adverse employment action when

Defendant Board eliminated her position. See Dkt. No. 34-8, Defs’ Memorandum in Support, at

19. The parties dispute, however, whether Plaintiff’s placement on administrative leave

constituted an adverse employment action. Defendants point to Joseph v. Leavitt, 465 F.3d 87,

91 (2d Cir. 2006), to support their contention that placement on administrative leave is not

adverse. See id. The Second Circuit in Joseph held that an employee does not suffer a

materially adverse change in the terms and conditions of employment to constitute an adverse

employment action where the employer merely enforces its preexisting disciplinary policies in a

reasonable manner, including placing an employee on administrative leave pending an internal

investigation or criminal charges. See Joseph v. Leavitt, 465 F.3d 87, 91-92 (2d Cir. 2006).

The Second Circuit clarified, however, that “our rule is not an absolute one, and that a

suspension with pay may, in some circumstances, rise to the level of an adverse employment

action.” Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (citing Joseph, 456 F.3d

at 91).

“The relevant question is therefore whether the employer has simply applied

disciplinary procedures to an employee or if the employer has exceeded those

procedures and thereby changed the terms and conditions of employment. Paid

suspension during an investigation could thus potentially be adverse if the

employer takes actions beyond an employee’s normal exposure to disciplinary

policies.”

Id. (quoting [Joseph, 456 F.3d] at 92 n.1).

Plaintiff contends that, after being placed on administrative leave, Defendants “exhibited

an unusual level of animosity towards her,” including the following: (1) Defendant District

stopped providing Plaintiff benefits to which she was entitled while still employed by the

District (including tuition reimbursement); (2) Defendants discontinued insurance benefits that

Plaintiff had already paid premiums for, causing her to go a month without medication she

needed; (3) Defendants changed her email password so she could no longer access her email

while still an employee; (4) Plaintiff was not allowed to collect personal documents from her

work computer when she requested access; and (5) Plaintiff was not allowed to retrieve her

graduate work or software that she personally paid for from her work computer. See Dkt. No.

35 at 26-27. The Court finds that these actions against Plaintiff, particularly losing tuition

reimbursement and insurance benefits for one month while remaining an employee, constituted

a diminution in salary and a material loss of benefits. Therefore, the Court finds that placing

Plaintiff on administrative leave constituted an adverse employment action.

Because Plaintiff has alleged two adverse employment actions in that her position was

eliminated and that she was placed on administrative leave that materially altered the conditions

of her employment, the Court finds that Plaintiff has satisfied the third element of her prima

facie discrimination claim.3

2. Inference of discrimination

The Court must next determine whether the circumstances surrounding Plaintiff’s placement

on administrative leave and Defendant Board’s elimination of her position give rise to an

inference of discrimination. Under the fourth element of the McDonnell Douglas test, a

plaintiff must “’present sufficient evidence for a reasonable jury to conclude, by a

preponderance of the evidence, that “race, color, religion, sex, or national origin was a

motivating factor”’” contributing to the employer’s decision to take the adverse employment

action. Vega, 801 F.3d at 85 (quoting Desert Palace, Inc. v. Costa, 539 U.S. 90, 101, 123 S. Ct.

2148, 156 L. Ed. 2d 84 (2003) (quoting 42 U.S.C. § 2000e-2(m))). “[A]n inference of

discriminatory intent may be derived from a variety of circumstances,” including the following:

“[T]he employer’s continuing, after discharging the plaintiff, to seek applicants

from persons of the plaintiff’s qualifications to fill that position; or the employer’s

criticism of the plaintiff’s performance in ethnically degrading terms; or its

3 Insofar as Plaintiff alleges that she suffered from an “atmosphere” of adverse employment

actions that collectively altered her employment, see Dkt. No. 35 at 12, the Court rejects such

claims.

invidious comments about others in the employee’s protected group; or the more

favorable treatment of employees not in the protected group; or the sequence of

events leading to the plaintiff’s discharge.”

Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009), superseded by statute on other

grounds, (quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) (internal

citations omitted)) (other citations omitted).

Plaintiff relies on disparate treatment evidence to raise an inference of discrimination; but,

as Defendants correctly note, she must show that “she was ‘similarly situated in all material

respects’ to the individuals with whom she seeks to compare herself.” Graham v. Long Island

R.R., 230 F.3d 34, 39 (2d Cir. 2000) (citing Shumway, 118 F.3d at 64). What constitutes “all

material respects” is based on “(1) whether the plaintiff and those [s]he maintains were

similarly situated were subject to the same workplace standards and (2) whether the conduct for

which the employer imposed discipline was of comparable seriousness.” Id. at 40 (citation

omitted). “Hence, the standard for comparing conduct requires a reasonably close resemblance

of the facts and circumstances of plaintiff’s and comparator’s cases, rather than a showing that

both cases are identical.” Id. (citation omitted).

Plaintiff argues that at least one male administrator, Jay Altobello, engaged in scandalous

and unethical conduct unbefitting of a public school administrator when he had a sexual affair

with a female employee whom he supervised. See Dkt. No. 35 at 15. Plaintiff alleges that the

situation “eventually became common knowledge” among Defendant District’s faculty, staff,

and Board of Education, but his conduct was never investigated. See id. Furthermore, Plaintiff

claims that all Defendant Hartwell did to address the matter was to advise Mr. Altobello to

cease his conduct; and, later, he was permitted to “simply leave [Defendant] District under his

own terms.” See id. (citing Dkt. No. 35-2, Ex. E, Harwell Deposition Excerpts, 75:3-76:25).

Defendants contend that, at the time of the alleged affair, Defendant District did not have a

policy prohibiting fraternization between employees. See Dkt. No. 34-8 at 21 (citing Dkt. No.

34-7 at ¶¶ 109, 110). Defendants assert that Defendant Hartwell investigated and discussed the

rumors with Mr. Altobello but did not put him on administrative leave because Defendant

District had no basis to take that action. See id. (citing Dkt. No. 34-7 at ¶¶ 112-114).

Defendants argue that rumors about a relationship (which was not prohibited by Defendant

District’s policy) are not of “comparable seriousness” to undisputed events in which “a

student’s safety was endangered and an employee behaved inappropriately with a student’s

parent.” See id. at 22.

Here, the facts surrounding Mr. Altobello’s departure are undisputed. First, although

Plaintiff and Mr. Altobello were both administrators within Defendant District, no party

discusses whether they were subject to the same workplace standards. Second, there is not a

“reasonably close” resemblance of the facts and circumstances of these cases. Mr. Altobello

engaged in a consensual, sexual relationship with a subordinate, whereas Plaintiff allegedly

acted inappropriately with regard to a student escaping school property and a phone call with

the student’s mother. The Court thus finds that these cases are not “reasonably close” or

“comparably serious” to demonstrate Defendant’s discriminatory intent in eliminating

Plaintiff’s position while she was on administrative leave.

Next, Plaintiff argues that she identified other women who were targeted in the same

manner as her because of their age or gender. See Dkt. No. 35 at 16. Plaintiff claims that she

identified Cherise Malboeuf, who was forced to resign and/or denied training due to a possible

hysterectomy, Andrea Lomber, who was denied tenure, and many other women who resigned or

were “on a list to be pushed out of [Defendant] District, most of [whom] were women over the

age of 40.” See id. (citing Dkt. No. 35-2, Ex. B, Pl’s 50-h T., 118:1-20). The Court finds that

these statements alone, supported only by Plaintiff’s testimony in her 50-h examination, would

not permit a trier of fact to reasonably infer that more likely than not her position as an

administrator was eliminated because of her gender.

Finally, the Court must determine if Plaintiff has alleged “more likely than not” that the

sequence of events leading to her placement on administrative leave and elimination of her

position were due to discrimination because she was a woman. Plaintiff alleges that she made

her complaint about Defendant Hartwell on March 3, 2015; and Defendants proceeded to place

her on administrative leave the next day, March 4, 2015. See Dkt. No. 35 at 15. Additionally,

Plaintiff argues that all of Defendant Hartwell’s conduct about which she complained occurred

throughout a span of six consecutive months during the 2014-2015 school year. See id.

Plaintiff has not pointed to any admissible evidence which, if believed by the trier of

fact, would support a finding that Defendants’ actions were based on gender discrimination.

Thus, for this and all of the above-stated reasons, the Court finds that Plaintiff has not

established the fourth element of her claim, i.e., that the relevant circumstances give rise to an

inference of discrimination; and, accordingly, she has not met her burden of establishing a

prima facie case of gender discrimination. Because Plaintiff has not met this burden, the Court

grants Defendants’ motion for summary judgment with respect to Plaintiff’s first cause of

action.

C. Plaintiff’s Title VII and ADEA retaliation claims

Title VII of the Civil Rights Act of 1964 includes an anti-retaliation provision, making it

unlawful “for an employer to discriminate against any of his employees … because [the

employee] has made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). “This

anti-retaliation provision is intended to further the goals of the anti-discrimination provision ‘by

preventing an employer from interfering (through retaliation) with an employee’s efforts to

secure or advance enforcement of [Title VII’s] basic guarantees.’” Hicks v. Baines, 593 F.3d

159, 164 (2d Cir. 2010) (quoting [Burlington Northern & Santa Fe Ry. v.] White, 548 U.S. [53,]

63, 126 S. Ct. 2405 [(2006)]). The ADEA has a similar anti-retaliation provision to protect

employees who complain about their employers’ discriminating on the basis of age. See 29

U.S.C. § 623(d).

Courts evaluate Title VII and ADEA retaliation claims under the three-step burden-

shifting analysis set out in McDonnell Douglas. See Hicks, 593 F.3d at 164; Kessler v.

Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 205 (2d Cir. 2006). “First, the plaintiff

must establish a prima facie case of retaliation by showing: ‘”(1) participation in a protected

activity; (2) that the defendant knew of the protected activity; (3) an adverse employment

action; and (4) a causal connection between the protected activity and the adverse employment

action.”’” Hicks, 593 F.3d at 164 (quotation); see also Kessler, 461 F.3d at 204. The plaintiff’s

burden in proving a prima facie case is “de minimis.” Hicks, 593 F.3d at 164. It is the court’s

role in evaluating a summary judgment motion “’to determine only whether proffered

admissible evidence would be sufficient to permit a rational finder of fact to infer a retaliatory

motive.’” Id. (quotation omitted) See id.

If the plaintiff sustains this initial burden, “‘a presumption of retaliation arises,’” and the

burden shifts to the defendant. Id. (citation omitted). Once the burden shifts to the defendant, it

must then “‘articulate a legitimate, non-retaliatory reason for the adverse employment action.’”

Id. (citation omitted). If the defendant can do this, then the “‘presumption of retaliation

dissipates’” and the burden shifts back to the employee to show that the retaliation “‘was a

substantial reason for the adverse employment action.’” Id. (citation omitted). “A plaintiff can

sustain this burden by proving that ‘a retaliatory motive played a part in the adverse

employment actions even if it was not the sole cause[.]’”4 Id. (quotation).

1. Prima facie case

a. Plaintiff’s engaging in a protected activity

The Second Circuit has held that, under Title VII, “[t]he term ‘protected activity’ refers

to action taken to protest or oppose statutorily prohibited discrimination.” Cruz v. Coach

Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000) (citing 42 U.S.C. § 2000e-3; Wimmer v. Suffolk

County Police Dep’t, 176 F.3d 125, 134-35 (2d Cir.) (discussing scope of statute’s “protected

activity” provision), cert. denied, 528 U.S. 964, 120 S. Ct. 398, 145 L. Ed. 2d 310 (1999)). An

informal complaint of discrimination can constitute a protected activity. See id. “While the law

is clear that opposition to a Title VII violation need not rise to the level of a formal complaint in

order to receive statutory protection, this notion of ‘opposition’ includes activities such as

‘making complaints to management, writing critical letters to customers, protesting against

discrimination by industry or by society in general, and expressing support of co-workers who

4 The Supreme Court, in Gross v. FBL Fin. Servs., Inc., left open the question of whether to

prove an ADEA retaliation claim a plaintiff must show that, but-for her protected activity, she

would not have suffered the alleged adverse employment action, which is the required standard

to prove ADEA disparate treatment claims. See Fried v. LVI Servs., Inc., 500 F. App’x 39, 41-

42 (2d Cir. 2012) (summary order) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.

Ct. 2343, 174 L. Ed. 2d 119 [(2009)]). Neither the Supreme Court since Gross nor the Second

Circuit has decided whether the “but-for test” or “motivating factor” analysis is appropriate for

ADEA retaliation claims. See id. As discussed infra, under either standard, the Court finds that

Plaintiff has shown sufficient evidence in the record to permit a factfinder to determine that she

was placed on administrative leave and her position was abolished “because of” her complaints

of age discrimination. See id.

have filed formal charges.’” Id. (quoting Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d

Cir. 1990)). Courts have found that this standard also applies to complaints pursuant to the

ADEA. See, e.g., Delville v. Firmenich Inc., 920 F. Supp. 2d 446, 463-64 (S.D.N.Y. 2013).

However, an employee must clarify to the employer that she is complaining of unfair

treatment due to her membership in a protected class. Although “complaints may be informal,

they cannot be so vague or ‘generalized’ that the employer could not ‘reasonably have

understood [ ] that the plaintiff’s complaint was directed at conduct prohibited by Title VII [or

the ADEA].’” Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 222 (E.D.N.Y. 2014)

(quoting Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 108 (2d Cir. 2011)

(alternation and other citation omitted)) (other citations omitted).

Defendants contend that Plaintiff did not file a complaint with Defendant District; and,

instead, she merely expressed “some concerns” to Ms. Roth, which Ms. Roth characterized as

“venting” from one colleague to another. See Dkt. No. 34-8 at 23. Defendants assert that,

although Plaintiff was “upset” about Defendant Hartwell’s behavior toward her, she did not

attribute the alleged behavior to her age or gender. See id. Furthermore, Plaintiff stated to Ms.

Roth, “[m]aybe I should file a complaint,” which Defendants argue shows that she was not

actually making a complaint at that time. See id.

Plaintiff asserts that she directly told Ms. Roth that she wanted to pursue a complaint for

harassment and discrimination against Defendant Hartwell. See Dkt. No. 35 at 17. In Ms.

Roth’s deposition, she also corroborated that she and Plaintiff were not friends in any capacity;

and, therefore, Plaintiff argues she was clearly not “venting” but making a complaint with the

Title IX Coordinator. See id. at 18-19. Plaintiff also claims that she told Ms. Roth she felt she

was being “targeted and driven out” for discriminatory reasons based on her age and gender and

to save her salary as she was the highest paid administrator. See id. at 19. Plaintiff asserts that

being the highest paid administrator was commensurate with her experience and seniority,

which was a form of age discrimination. See id. Furthermore, Plaintiff testified in her 50-h

hearing that she wanted to pursue a complaint against Defendant Hartwell for harassment

because she felt that he was “driving [her] out because he [didn’t] want to pay [Plaintiff her]

benefits.” See Dkt. No. 35-2, Ex. B, 74:8-10. Plaintiff also stated that Defendant Hartwell did

not “want to pay for what’s in [her] contract.” See id. at 74:10-11. Thus, because of the

ongoing issues she was facing with Defendant Hartwell, Plaintiff told Ms. Roth that she wanted

to file a complaint. See id.

Plaintiff, who was 53-years-old at the time of these events, had been employed in public

education for twenty-one years and had held her position as Director of Special Services at

Defendant District for ten years. See Dkt. No. 1 at ¶¶ 10-11. Her salary was commensurate

with her experience and seniority. See Dkt. No. 35 at ¶ 19. These facts, in addition to

Plaintiff’s and Ms. Roth’s own statements about their discussion, show that Ms. Roth

reasonably could have inferred that Plaintiff’s complaint about “bullying” because she was the

“highest paid administrator” was an informal complaint about unlawful age discrimination.

Thus, the Court finds that Plaintiff engaged in a protected activity under the ADEA when she

informally complained to Ms. Roth on March 3, 2015, and further holds that Plaintiff has

alleged the first element of her prima facie case for retaliation under the ADEA.

There is no evidence, however, that Plaintiff complained of gender discrimination to Ms.

Roth. Neither Plaintiff nor Ms. Roth testified that Plaintiff made such complaints. Therefore,

the Court finds that Plaintiff has not alleged the first element of her prima facie case for

retaliation under Title VII. Because Plaintiff has not established a prima facie case for

retaliation under Title VII, the Court grants Defendants’ motion for summary judgment with

respect to Plaintiff’s third cause of action.

b. Remaining elements of Plaintiff’s prima facie case for retaliation under

the ADEA

The Court must next consider whether Defendants knew about Plaintiff’s informal

complaint, whether Plaintiff suffered an adverse employment action, and whether there was a

causal connection between Plaintiff’s complaint and Defendants’ actions. First, Defendant

Hartwell was clearly aware of Plaintiff’s informal complaint to Ms. Roth because Ms. Roth

admits she told him about it. See Dkt. No. 34-2 at ¶ 11; see also Dkt. No. 35-2, Ex. D, Roth

Testimony, at 28:5-17. One court in this District has found that a defendant-school district is

“aware” of a complaint if it was made directly to the superintendent. See Brooks v. Fonda-

Fultonville Cent. Sch. Dist., 938 F. Supp. 1094, 1106 (N.D.N.Y. 1996). Thus, since Plaintiff

alleged that Defendant Hartwell, as the superintendent, had direct knowledge of the complaint,

she sufficiently alleged that Defendants District and Board were aware of her informal

complaint. Therefore, the Court finds that Plaintiff has established the second element of her

prima facie case for retaliation.

Second, the parties concede that eliminating Plaintiff’s position constitutes an adverse

employment action to satisfy the third element of Plaintiff’s prima facie case. See generally

Dkt. No. 34-8 at 25-26. As discussed supra, Plaintiff’s placement on administrative leave in

this situation was also adverse because Defendant District allegedly acted differently toward

Plaintiff as compared to others who had been disciplined. See Brown, 673 F.3d at 150.

Because Plaintiff suffered these adverse employment actions, the Court finds that she has

satisfied the third element of her prima facie case for retaliation.

Finally, the Court must consider whether Plaintiff asserted a causal connection between

the adverse actions she suffered and her informal complaint to Ms. Roth. A brief look at the

facts in Plaintiff’s complaint shows that she was placed on administrative leave the day after she

complained to Ms. Roth. See Dkt. No. 1 at ¶¶ 19, 21-24. Furthermore, Plaintiff was not

informed that her position was to be eliminated until April 6, 2015 – the day before the Board of

Education voted on it – or that her position was actually eliminated until April 27, 2015, even

though Defendant District had apparently known about the fate of her position as early as fall of

2014. See Dkt. No. 34-1, Ex. C, at 16; Dkt. No. 34-8 at 26. Based on these facts, the Court

finds that Plaintiff has satisfied the fourth element of her prima facie case for retaliation.

In sum, the Court finds that Plaintiff has established all the elements of her prima facie

case for retaliation based on her age pursuant to the ADEA. Thus, the Court must next

determine whether Defendants District and Board had legitimate, non-discriminatory reasons

for eliminating Plaintiff’s position and whether Plaintiff can show that those reasons were mere

pretext.

2. Defendants’ legitimate, non-retaliatory reason for taking adverse employment

actions against Plaintiff

Because Plaintiff has established a prima facie case for retaliation, the burden shifts to

Defendants to articulate some legitimate, non-retaliatory reason for taking adverse employment

actions against her. The Court analyzes Defendants’ proffered explanation under the same

standard as Title VII or ADEA discrimination claims. In those cases, the Supreme Court has

held, “The defendant need not persuade the court that it was actually motivated by the proffered

reasons. … It is sufficient if the defendant’s evidence raises a genuine issue of fact as to

whether it [retaliated] against the plaintiff.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 254 (1981) (internal citation and footnote omitted). According to the Supreme Court, “[t]o

accomplish this, the defendant must clearly set forth, through the introduction of admissible

evidence, the reasons for the [employment decision]. . . . The explanation provided must be

legally sufficient to justify a judgment for the defendant.” Id. at 255 (internal footnotes

omitted). The Court also noted that “[a]n articulation not admitted into evidence will not

suffice. Thus, the defendant cannot meet its burden merely through an answer to the complaint

or by argument of counsel.” Id. at 255 n.9.

Defendants first argue that Plaintiff was placed on administrative leave for legitimate

reasons in that Defendant District received reports from its employees, as well as the parent of a

special needs student, that Plaintiff had not adequately supervised a student under her

supervision and then yelled at the student’s parent during a phone call. See Dkt. No. 34-8 at 27

(citing Dkt. No. 34-7 at ¶¶ 48-49, 56, 60). Defendants assert that endangering the welfare of a

student is a legitimate reason for placing a school employee on administrative leave. See id.

(citing Perez-Dickson v. Bridgeport Bd. of Educ., No. 3:13-CV-198 (WWE), 2016 WL 236206

(D. Conn. Jan. 19, 2016)). Defendants further argue that, on March 4, 2015, Ms. Roth and

Defendant Hartwell met with Plaintiff and informed her that she was being placed on

administrative leave because of the need to investigate the situation with the student and parent.

See id. at 27-28 (citing Dkt. No. 34-7 at ¶¶ 68-73). Thus, Defendants argue, Defendant

Hartwell’s decision to place Plaintiff on administrative leave had nothing to do with Plaintiff’s

age or gender, nor was it in retaliation for her alleged complaint. See id. at 28. Defendants also

argue that Plaintiff’s position was eliminated because of administrative restructuring and

budgetary needs. See id. For all these reasons, the Court finds that Defendants have offered

legitimate, non-retaliatory reasons for placing Plaintiff on administrative leave and eliminating

her position.

3. Pretext

Because Defendants have met their burden to proffer a legitimate, non-retaliatory reason for

their adverse employment actions against Plaintiff, the burden shifts once again to Plaintiff to

prove that a retaliatory motive played a part in the adverse employment action, even if it was

not the sole cause. Essentially, Plaintiff must show that Defendants’ non-retaliatory reasoning

was pretext.

Plaintiff lists the following eight reasons to support her contention that Defendants’ conduct

was pretextual: (1) close temporal proximity between her complaint and her placement on

administrative leave, (2) the incident involving her phone conversation with a parent was an

“excuse” to remove her as it was the lone black mark on her “spotless professional record”; (3)

despite claiming “budgetary reductions” for abolishing her position, Defendant District paid

more money to new and existing employees; (4) the nature and amount of special education

work for Defendant District did not change during the 2014-2015 year or after her position was

abolished; (5) Defendant District created a new position for which she was qualified but failed

to inform her of the new administrative job opening when it became available; (6) Plaintiff was

the only administrative employee to have her position abolished during the 2014-2015 school

year; (7) Defendant Hartwell targeted and harassed her throughout the entire school year after

he joined Defendant District; and (8) after Defendants placed her on leave they exhibited an

unusual level of animosity towards her. See Dkt. No. 35 at 22-27.

Plaintiff provides evidence to support each of these contentions. For example, although

Defendants claim that Plaintiff’s position was abolished due to “budgetary reductions,” Plaintiff

alleges that Defendant District ended up spending more money than it was paying to cover her

salary. According to Plaintiff, at the time she was terminated, her salary was around $86,000,

and the starting salary for the new administrative position Defendant District created was

around $88,000. See Dkt. No. 35 at 23 (citing Dkt. No. 35-2, Ex. E at 69:21-25). Further,

Defendant Hartwell acknowledged in his testimony that, in essence, Defendant District ended

up trading one administrative position for another. See id. (citing Dkt. No. 35-2, Ex. E at 25:8-

11). Additionally, Plaintiff asserts, to continue to meet all of the responsibilities of her position

that remained after it was abolished, Defendant District created stipend positions to fill those

needs. See id. Some of those stipends, Plaintiff argues, paid employees an extra $5,000. See id.

(citing Dkt. No. 35-2, Ex. E at 73:20-25).

Furthermore, Plaintiff asserts that Defendants failed to inform her of the new administrative

job opening when it became available; and, when Defendant Hartwell was asked if he believed

Plaintiff met the qualifications for that position, he responded “absolutely not.” See id. at 25

(citing Dkt. No. 35-2, Ex. E, Hartwell Depo, at 68:3-69:1). Plaintiff points to Defendant

Hartwell’s testimony that she lacked interpersonal and communication skills and leadership

abilities; yet, after she was terminated from Defendant District, Plaintiff was subsequently hired

as the Elementary Principal and Director of Special Education for the Poland Central School

District. See id. at 25-26 (citing Dkt. No. 35-2, Ex. E at 68:3-69:1). Plaintiff also submitted

exhibits showing a clear degree of overlap and similarities in terms of the skills and experience

required between her position as Director of Special Services and the newly created position of

the Executive Director of Academic and Instructional Excellence. See id. at 25-26 (citing Dkt.

No. 35-2, Exs. F, G, H5).

5 Defendants contend that these exhibits are inadmissible and that the Court cannot consider

them because Attorney Ciotoli does not possess the personal knowledge necessary to testify to

the nature, substance, meaning, value, or authenticity of these exhibits. See Dkt. No. 36, Defs’

Reply, at 4. The Court rejects this objection as attorneys regularly submit affirmations that

merely list the documents that are included in their submissions

The Court finds that Plaintiff has adduced evidence showing that Defendants’ reasons for

placing her on administrative leave and eliminating her position are pretextual, thus creating a

clear dispute of fact; and, for these reasons, the Court denies Defendants’ motion for summary

judgment with respect to Plaintiff’s ADEA retaliation claim.

D. Plaintiff’s claim pursuant to the Equal Protection Clause

“[O]nce the color of state law requirement is met, except for the issue of individual liability,

an ‘equal protection claim parallels [a plaintiff’s] Title VII claim.’” Vega, 801 F.3d at 82

(quoting Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004)). For the reasons that the

Court grants Defendants’ motion for summary judgment with respect to Plaintiff’s Title VII

gender-based discrimination and retaliation claims, the Court further grants Defendants’ motion

for summary judgment with respect to Plaintiff’s gender-based Equal Protection claim as they

apply the same standard.6

E. Plaintiff’s claim pursuant to the Due Process Clause

The parties agree that Plaintiff was tenured pursuant to the New York Education Law, but

they dispute whether she was entitled to a pre-termination hearing. In the analogous case of

Elmendorf v. Howell, the plaintiff claimed that the defendants violated her due process rights by

failing to conduct a pre-termination hearing when they abolished her position as Building

Principal and created the position of Assistant Superintendent. See Elmendorf v. Howell, 962 F.

Supp. 326, 329, 331-32 (N.D.N.Y. 1997) (McAvoy, J.). The Elmendorf court noted that,

“[a]lthough the Constitution protects property interests, it does not create them. Rather, ‘they

6 There is also no evidence in the record to support a claim of Equal Protection based on age;

and, therefore, the Court dismisses Plaintiff’s Equal Protection claim to the extent this claim is

based on Plaintiff’s age.

are created and their dimensions are defined by existing rules or understandings that stem from

an independent source such as state law. …’” Id. at 332 (quoting Bd. of Regents v. Roth, 408

U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed.2d 548 (1972)). The parties did not dispute that

“’[t]enure, once conferred, is a property interest protected by the Due Process Clauses of the

Fifth and Fourteenth Amendments,’” and that the plaintiff was tenured pursuant to the New

York Educational Law. Id. (quoting Blum v. Schlegel, 18 F.3d 1005, 1014 (2d Cir. 1994)

(citations omitted)).

The court further noted that, after reviewing the relevant case law, it was “clear that under

New York law, when a position held by a tenured individual is abolished no pre-termination

hearing is required[.]” Id. (citing Mitchell v. Bd. of Education of Great Neck Public Schools, 40

N.Y.2d 904, 389 N.Y.S.2d 354, 355, 357 N.E.2d 1008, 1009 (1976); Beers v. Nyquist, 72 Misc.

2d 210, 211, 338 N.Y.S.2d 745, 746 (Sup. Ct. Albany County 1972)). However, the court held

that it “cannot find as a matter of law that plaintiff was not entitled to a pre-termination hearing”

because “when there is a question of fact as to the similarity of the subsequently created

position, the Court should not dispose of a concomitant due process claim on summary

judgment.” Id. (citing DeSimone v. Bd. of Educ., South Huntington Union Free Sch. Dist., 604

F. Supp. 1180, 1184 (E.D.N.Y. 1985)).

Quoting DeSimone, the court noted that a plaintiff can prove that she was deprived of

property without due process if she shows either “‘(1) that at the time of the plaintiff[’]s

discharge there existed genuine factual issues bearing upon the similarity or dissimilarity of the

positions; or (2) that at the time of plaintiff’s discharge it could be said as a matter of law that

the positions were similar within the meaning of Education Law § 2510(1).’” Id. (quoting

[DeSimone,] 604 F. Supp. at 1184). Furthermore, “‘[d]efendant can prove that there was no

deprivation of property without due process if it can show that at the time of the discharge it

could be said as a matter of law that the positions were not similar within the meaning of

Education law § 2510(1).’” Id. (quoting [DeSimone,] 604 F. Supp. at 1184). Thus, the court

denied the parties’ motions for summary judgment because there was a material factual issue

about the similarity of the Building Principal and Assistant Superintendent positions. See id.

In this case, the undisputed facts show that, after abolishing Plaintiff’s position of Director

of Student Services, Defendant District created the position Executive Director of Academic

and Instructional Excellence. Plaintiff has submitted Exhibits F, G, and H, which include the

job descriptions and qualifications for both positions. See Dkt. No. 35-2, Exs. F, G, H. Upon

review of these exhibits, the Court finds that a question of fact exists regarding the similarity of

these positions. If a factfinder found that these positions were reasonably similar or that

Plaintiff had the appropriate qualifications for the subsequently created position, then the

factfinder would have to find that Plaintiff was deprived of her due process rights when

Defendants terminated her without a pre-termination hearing. Thus, the Court denies

Defendants’ motion for summary judgment with regard to Plaintiff’s due process claim.7

IV. CONCLUSION

After carefully considering the entire file in this matter, the parties’ submissions and the

applicable law, and for the above-stated reasons, the Court hereby

ORDERS that Defendants’ motion for summary judgment, see Dkt. No. 34, is

GRANTED IN PART and DENIED IN PART; and the Court further

7 However, insofar as Plaintiff alleges this claim against Defendant Hartwell in his official

capacity, the Court dismisses that claim as redundant.

ORDERS that Defendants’ motion for summary judgment with respect to Plaintiff’ s

first and third causes of action for discrimination and retaliation based on gender pursuant to

Title VII against Defendants District and Board is GRANTED; and the Court further

ORDERS that Defendants’ motion for summary judgment with respect to Plaintiff’ s

eighth cause of action for violation of the Equal Protection Clause, brought pursuant to 42

U.S.C. § 1983, against all Defendants is GRANTED; and the Court further

ORDERS that Defendants’ motion for summary judgment with respect to Plaintiff’ s

fifth cause of action for unlawful retaliation based on age pursuant to the ADEA against

Defendants District and Board is DENIED; and the Court further

ORDERS that Defendants’ motion for summary judgment with respect to Plaintiff’ s

ninth cause of action for violation of the Due Process Clauses of the Fifth and Fourteenth

Amendments based on a deprivation of Plaintiffs property interests, brought pursuant to 42

U.S.C. § 1983, against all Defendants is DENIED; and the Court further

ORDERS that the trial of this action shall commence at 10:00 a.m. on June 22, 2020,

in Syracuse, New York. The Court will issue a separate Final Pretrial Scheduling Order, setting

forth the deadlines for filing pretrial submissions, including motions in limine, at a later date.

IT IS SO ORDERED.

Dated: March 20, 2020 Adldle rth,

Syracuse, New York Freder&k J. @cullin, Jr.

Senior United States District Judge

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