Opinion

Kaczmarek v. D'Youville College

Court: District Court, W.D. New York
Filed: Jun 26, 2023
Cited by: 0 cases
Authority: More cited than 27.9%

Docket No. 49, Pl. Memo. at 16-17

How later courts described this case

Docket No. 49, Pl. Memo. at 16-17
race, gender, and age discrimination

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The opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

NANCY KACZMAREK,

Plaintiff,

v. DECISION AND ORDER

20-CV-22S

D’YOUVILLE COLLEGE,

LORRIE CLEMO,

Defendants.

I. Introduction

This is an age and religion employment discrimination and retaliation action by

Plaintiff Sister Nancy Kaczmarek against her former employer, then known as D’Youville

College (now D’Youville University; hereinafter “D’Youville”) and its president Dr. Lorre

Clemo, Ph.D. (Docket No. 1, Compl.).

Sister Kaczmarek was a Professor of Education and archivist at D’Youville. In

2018, D’Youville decided to lay off (or as it termed “retrench”) the faculty of its Education

Department, leading to D’Youville firing Plaintiff from both positions. In January 2019,

D’Youville recommended establishing a Masters of Curriculum and Instruction program

but refused to reinstate retrenched Education Department faculty (including Sister

Kaczmarek).

Before this Court is Defendants’ Motion for Summary Judgment (Docket No. 441).

For the reasons stated herein, Defendants’ Motion (Docket No. 44) is granted in part,

1In support of their Motion, Defendants submit their Statement of Undisputed Material Facts,

Memorandum of Law, the Declaration of Dr. Lorrie Clemo with exhibits, Docket No. 44; and Defendants’

Reply Memorandum, Docket No. 52.

denied in part. Issue of fact remain for potential trial on whether Defendants discriminated

against Sister Kaczmarek in terminating her part-time position as archivist because of

religion.

II. Background

A. Facts Alleged in the Complaint (Docket No. 1)

Sister Kaczmarek is a member of the Grey Nuns of the Sacred Heart (Docket

No. 1, Compl. ¶ 1) and earned a Ph.D. in English Education (id. ¶ 16). She worked for

D’Youville since 1981, awarded tenure in 1995 as Professor of Education and (since

2016) also served as college archivist (id. ¶¶ 16, 26). Sister Kaczmarek had excellent

teaching evaluations and was involved in service and faculty activities at D’Youville (id.

¶ 16). Sister Kaczmarek also claims she was qualified to teach English and to teach in

the Education Leadership Program (id. ¶ 35) while also deemed highly thought of as an

archivist by the Head Librarian and library staff (id. ¶ 29). Sister Kaczmarek believed she

would continue as archivist even after retiring from full-time teaching as had her

predecessors as archivist. She obtained certification as a Certified Archivist. (Id.)

Sister Kaczmarek held those positions until September 7, 2018, when the

Education Department was “retrenched” and D’Youville eliminated the archivist position.

(Id. ¶ 12.)

In August 2018, D’Youville announced that it eliminated or “retrenched” the

Education Department due to diminished enrollment in its teacher education programs

and the availability of teachers’ education at other area colleges (id. ¶¶ 13-14). Sister

In response to this Motion, Plaintiff submits her original Memorandum of Law with exhibits, Docket

No. 48; her Statements of Fact, id.; her amended Memorandum of Law, Docket No. 49.

Kaczmarek claims, however, that the D’Youville Board of Trustees voted to stop enrolling

education students in Fall of 2016, ensuring that the Education Department would have

lower or no enrollment and D’Youville creating the condition for terminating Sister

Kaczmarek (id. ¶ 14). The Board directed the Education Department to develop other

programs to increase enrollment (id. ¶ 22). Dr. Clemo received various proposals from

the Education Department faculty to increase enrollment (including recruiting students

from India for a master’s program) but Dr. Clemo did not approve them (id. ¶¶ 22, 24).

Dr. Clemo did not sign or submit graduate certificate programs to the New York State

Education Department that would have allowed education students to begin studying in

2019, missing opportunities for potential graduate students from India or for those seeking

teaching certifications (id. ¶ 25).

D’Youville also eliminated the archivist position held by Sister Kaczmarek,

deeming that part of her duties as a Professor of Education (id. ¶ 26). She claims,

however, that the archivist was a part-time administrative position under the Head

Librarian and was held by a Grey Nun from its creation in 1965 (save for five years) (id.).

Sister Kaczmarek learned that the archivist position no longer existed and it was created

just for her (id. ¶ 27). The Head Librarian, however, was not consulted about the

termination of the archivist position; Sister Kaczmarek told Rand Bellavia, the Head

Librarian, of the removal (id. ¶ 28).

Sister Kaczmarek complained about her dismissals to Dr. Clemo and University

administration as the AAUP complained about the retrenchment of the Education

Department (id. ¶ 30).

In January 2019, D’Youville recommended conducting a Masters of Curriculum

and Instruction Program (“C&I Program”), a program Sister Kaczmarek and retrenched

faculty previously taught (id. ¶ 15; see Docket No. 44, Defs. Memo. at 7). Faculty at

D’Youville are represented by the American Association of University Professors

(“AAUP”). Upon learning of the University’s plan, the AAUP local president argued to

D’Youville that retrenched faculty should be reinstated for that program. (Docket No. 1,

Compl. ¶ 17.) D’Youville replied that it could not afford to reinstate the retrenched faculty

(id. ¶ 18). Sister Kaczmarek claims that D’Youville’s decision was based upon the age

and status of the faculty and not on the size of enrollment (id.).

Sister Kaczmarek next contends that she and the other retrenched faculty were

fired with less than two weeks’ notice (id.), with tenured faculty given only 10 days’ notice

while tenure-track faculty who were not renewed were given five months’ to one year’s

notice (id. ¶ 19). Sister Kaczmarek was tenured and was given only 10 days’ notice,

which she claims is contrary to the collective bargaining agreement with the AAUP (id.).

The firing in August 2018 precluded Sister Kaczmarek from searching for comparable

work in academia, with the search process usually taking a calendar year, timing

D’Youville administrators were well familiar with (id. ¶ 31). Thus, Sister Kaczmarek

suffered financial and emotional distress (id. ¶ 32). Meanwhile, many of the courses she

taught continued to be taught at D’Youville (id. ¶ 33).

In addition, D’Youville and the AAUP entered a Memorandum of Agreement that

provided if the Education Department were reinstituted, retrenched faculty would have a

right to be rehired (id. ¶ 20). Sister Kaczmarek, however, was not offered any other

position at D’Youville (id. ¶ 34) while the AAUP president and department heads at

D’Youville were not consulted about possible openings (id. ¶ 35). Further, she was not

considered for the then-open position of Chief Mission Officer, a position held by a Grey

Nun (id. ¶ 36).

On December 12, 2018, Sister Kaczmarek filed a charge of discrimination with the

New York State Division of Human Rights and cross-filed with the Equal Employment

Opportunity Commission (“EEOC”) (Docket No. 1, Compl. ¶¶ 6, 7; Docket No. 44, Clemo

Decl. ¶ 19, Ex. B). On June 12, 2019, the New York State Division of Human Rights

issued a Determination and Order after Investigation which found no probable cause,

dismissing the matter (Docket No. 1, Compl. ¶ 8; Docket No. 44, Clemo Decl. ¶ 19, Ex. C;

see Docket No. 44, Defs. Statement ¶ 19). On October 11, 2019, the EEOC issued its

Dismissal and Notice of Rights (Docket No. 1, Compl. ¶ 9; Docket No. 48, Pl. Ex. 10).

Plaintiff alleges that she commenced this action within 300 days of the State Division of

Human Rights’ action (Docket No. 1, Compl. ¶¶ 10-11).

B. Causes of Action

The Complaint alleges three causes of action. The First Cause of Action alleges

unlawful age discrimination in violation of the Age Discrimination in Employment Act.

29 U.S.C. §§ 621-34, 623(a)(1) (“ADEA”) (id. ¶¶ 38-49). Sister Kaczmarek alleges that

she was over the age of 40, suffering from the adverse action of her termination on

September 7 2018 (id. ¶¶ 39, 40). She claims she was “exceptionally well qualified” for

her positions as professor and archivist (id. ¶ 46) while that work was still performed after

her termination (id. ¶¶ 47-49) by younger, lower-salaried, and less qualified persons (id.

¶ 49).

The Second Cause of Action claims that Defendants discriminated against Sister

Kaczmarek based on her religion, 42 U.S.C. § 2000e-2(m), as a Roman Catholic and a

member of religious order (id. ¶¶ 51-56). Sister Kaczmarek claims that Vice President of

Academic Affairs Dr. Mimi Steadman stated that “the nun must go” (id. ¶ 54). Sister

Kaczmarek now complains that she was fired as archivist despite this position being held

by a Grey Nun through almost all its existence (id. ¶¶ 26, 56). Her termination manifested

Defendants’ religious bias (id. ¶ 56).

Finally, the Third Cause of Action alleges that Defendants retaliated against Sister

Kaczmarek in violation of Title VII, 42 U.S.C. § 2000e-3(a) (id. ¶¶ 58-622). She alleges

D’Youville’s failure to investigate her complaints against her termination was retaliatory

(id. ¶¶ 59, 60, 61), see Cox v. Onondaga Cnty. Sheriff’s Dep’t, 760 F.3d 139, 146 (2d Cir.

2014).

C. Defendants’ Motion for Summary Judgment (Docket No. 44) and Facts

Asserted Therein

The parties stipulated to dismissal of Defendant Charles Urlaub, Chairman of the

Board of D’Youville (Docket No. 13; see Docket No. 1, Compl. ¶ 2). Remaining

Defendants D’Youville and President Clemo then answered (Docket No. 14).

Defendants then moved for summary judgment arguing that Sister Kaczmarek has

not established a prima facie case for her age discrimination claim and her remaining

claims fail as a matter of law (Docket No. 44).

2Defendants also argue that this claim is in retaliation for age discrimination, Docket No. 44, Defs.

Memo. at 9, although they later concede that Sister Kaczmarek has not alleged retaliation under the ADEA,

Docket No. 52, Defs. Reply Memo. at 9 & n.6; see also Docket No. 44, Defs. Memo. at 17-19 (arguing the

retaliation claim under Title VII fails).

Generally, Sister Kaczmarek admits (see Docket No. 48) the facts alleged in

Defendants’ Statement of Undisputed Material Facts (Docket No. 44). Material disputed

facts are noted below.

D’Youville, founded by the Grey Nuns (Docket No. 44, Lorrie Clemo Decl. ¶ 4),

offers degrees in various undergraduate, masters, post-graduate, and doctoral programs

(Docket No. 44, Defs. Statement ¶ 1). Dr. Clemo, herself a Catholic, is the first layperson

serving as President of D’Youville since January 2017 (id. ¶¶ 3, 4).

Although D‘Youville’s Education Department once enjoyed a robust student

enrollment, the numbers of enrolled students diminished over time due (for example) that

the Province of Ontario changed academic requirements for teaching there that made it

less attractive for Canadian students to enroll (id. ¶ 6). In 2002, D’Youville’s Education

Department had 1,142 students enrolled but in 2016 there were only 5 students enrolled

in that department’s 4 programs (Docket No. 44, Clemo Decl. ¶ 6, Ex. A). In the fall of

2016, there were concerns that the low enrollment would jeopardize accreditation of the

Education Department (Docket No. 44, Defs. Statement ¶ 7). In October 2016, D’Youville

suspended programs offered by the Education Department (id. ¶ 8).

In 2016, Sister Kaczmarek was assigned to perform part-time archivist duties for the

University Library (Docket No. 44, Defs. Statement ¶ 13). Although she lacked specific

archival training or a degree in library science, D’Youville appointed Sister Kaczmarek

archivist. According to Sister Kaczmarek, she was appointed to substitute for one of three

courses she no longer taught. (See Docket No. 44, Defs. Memo. at 6; Docket No. 44,

Defs. Atty. Affirm. Ex. A, Pl. EBT Tr. at 112-13; Docket No. 44, Clemo Decl. ¶ 15). She

believed to keep her employed during the suspension of the Education Department (see

Docket No. 49, Pl. Memo. at 5).

Defendants claim that the D’Youville administration hoped that suspension of

programs in the Education Department could be used to consider restructuring of

programs (Docket No. 44, Defs. Statement ¶ 9). Sister Kaczmarek, however, denies this

and she does not believe that D’Youville planned to restructure (Docket No. 48, Pl.

Statement ¶ 9). D’Youville’s administration, however, concluded that Education

Department programs could not be resuscitated and thus were discontinued due to the

lack of enrollment (Docket No. 44, Defs. Statement ¶ 10).

In August 2018, D’Youville discontinued the Education Department programs

(Docket No. 44, Clemo Decl. ¶¶ 9-12). D’Youville notified Sister Kaczmarek and other

faculty members of their termination (id. ¶ 12).

After discontinuance of the programs, Vice President Steadman negotiated with

AAUP president Dr. Marge Goodman the retrenchment and on whether there are suitable

vacant positions for members of the Education Department (Docket No. 44, Defs.

Statement ¶ 11). Looking at faculty vacancies, D’Youville’s administration concluded that

there were no suitable vacancies (id.). D’Youville argues that the AAUP also did not

identify suitable openings for the retrenched faculty (Docket No. 44, Clemo Decl. ¶ 14).

Sister Kaczmarek however disputes limited vacancies to faculty positions and

claimed that she was qualified to work in Campus Ministry or the Learning Center among

non-academic departments (Docket No. 48, Pl. Statement ¶ 11). Sister Kaczmarek never

spoke to anyone about any position aside from archivist or Chief Mission Officer (Docket

No. 44, Defs. Statement ¶ 12); she explains that she did not wish to overstep the union-

management reassignment process (Docket No. 48, Pl. Statement ¶ 12). Sister

Kaczmarek testified that she applied, but was not selected, for D’Youville’s Chief Mission

Officer position in September 2018 (Docket No. 44, Defs. Memo. at 6 n.6, citing Docket

No. 44, Defs. Atty. Affirm. Ex. A, Pl. EBT Tr. at 78-79).

Once D’Youville concluded that the Education Department would be discontinued,

the school then found that a dedicated archivist was unnecessary (Docket No. 44, Defs.

Statement ¶ 14), with President Clemo asserting that a small institution such as D’Youville

did not need an archivist, rather than what she termed “extremely large research

institutions such as Cornell University” (Docket No. 44, Clemo Decl. ¶ 15). D’Youville

abolished that position and to date have not filled it, using library staff to obtain

D’Youville’s historical materials (id. ¶ 16).

Sister Kaczmarek, however, denies that she could not have been retained part-

time in that position. She in fact anticipated staying on part-time. Further, Sister

Kaczmarek contends that the Education Department and archivist position are unrelated

(Docket No. 48, Pl. Statement ¶ 14). She argues that she and the Head Librarian were

never told about losing the archivist position (id.).

Defendants state that in January 2019, D’Youville offered an online Masters in

Curriculum and Instruction program (“C&I Program”) to three students in India (Docket

No. 44, Defs. Statement ¶ 15). Sister Kaczmarek, however, disputes the approval of this

program by the New York State Education Department, claiming that the application to

the state was made under false pretenses given D’Youville’s retrenchment at the same

time (Docket No. 48, Pl. Statement ¶ 15). Defendants represent that the C&I Program

was not for teacher preparation or credentialing students (Docket No. 44, Defs. Statement

¶ 16). They claim that they offered the C&I Program because of contracts D’Youville

entered with Indian entities to offering joint program to their students (id.). Sister

Kaczmarek denies this, asserting that the C&I Program was offered more broadly than to

contracted Indian students (see Docket No. 48, Pl. Statement ¶ 16). Defendants claim

that the C&I Program ran only in 2019 and served those three students. Defendants also

denied any obligation to have Education Department faculty return. (Docket No. 44, Defs.

Statement ¶ 17.)

Sister Kaczmarek disagrees. First, she questioned the qualifications of

administrators and adjunct faculty that taught the C&I Program. Second, she believes

the Memorandum of Agreement with the AAUP bound D’Youville to reinstate former

Education Department faculty regardless of the number of students in the program.

(Docket No. 48, Pl. Statement ¶ 17.) Third, Sister Kaczmarek claims that D’Youville

continued the C&I Program into 2022 (id.), although she later admits that the Program

was not offered after 2019 (Docket No. 44, Defs. Statement ¶ 18; cf. Docket No. 48, Pl.

Statement ¶ 18).

The AAUP filed a grievance seeking reinstatement of the retrenched faculty but

D’Youville prevailed in binding arbitration (Docket No. 44, Defs. Statement ¶ 18; cf.

Docket No. 48, Pl. Statement ¶ 18).

After extension of the briefing schedule (Docket Nos. 47, 51, 45, 48), responses

were due by January 9, 2023 (Docket No. 47), and replies by February 3, 2023 (Docket

No. 51). Upon timely briefing (Docket Nos. 48, 49, 52), the Motion is deemed submitted.

III. Discussion

A. Generally Applicable Standards

1. Summary Judgment

Summary judgment is appropriate 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). A fact is “material” if it “might affect the outcome of the suit under

the governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,

91 L.Ed.2d 202 (1986). An issue of material fact is “genuine” if “the evidence is such that

a reasonable jury could return a verdict for the nonmoving party,” id.

The movant seeking summary judgment has the burden (through pleadings,

depositions, answers to interrogatories, admissions, affidavits, and other materials, Fed.

R. Civ. P. 56(c)(1)) to demonstrate the absence of a genuine issue of material fact, Ford

v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003).

In deciding a motion for summary judgment, the evidence and the inferences

drawn from the evidence must be “viewed in the light most favorable to the party opposing

the motion,” Addicks v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d

142 (1970). “Only when reasonable minds could not differ as to the import of evidence is

summary judgment proper,” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The

function of the Court is not “to weigh the evidence and determine the truth of the matter

but to determine whether there is a genuine issue of fact for trial,” Anderson, supra,

477 U.S. at 249. “Assessment of credibility and choices between conflicting versions of

the events are matters for the jury, not for the court on summary judgment,” Rule v. Brine,

Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).

But a “mere scintilla of evidence” in favor of the nonmoving party will not defeat

summary judgment, Anderson, supra, 477 U.S. at 252. A nonmoving party must do more

than cast a “metaphysical doubt” as to the material facts; it must “offer some hard

evidence showing that its version of the events is not wholly fanciful,” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538

(1986). That is, there must be evidence from which the jury could reasonably find for the

nonmoving party, Anderson, supra, 477 U.S. at 252.

2. Federal Employment Discrimination

As for the First Cause of Action, it is unlawful for an employer to discriminate

against any individual with respect to her terms, conditions, or privileges of employment

because of her age, 29 U.S.C. § 623(a)(1). The Second Cause of Action alleges

discrimination based on Sister Kaczmarek’s religion. Title VII of the Civil Rights Act of

1964, as amended, makes unlawful employment practice (including discharge) because

of the employee’s religion, see 42 U.S.C. § 2000e-2(a)(1). An unlawful employment

practice “is established when the complaining party demonstrates that . . . religion, . . .

was a motivating factor for any employment practice, even though other factors also

motivated the parties,” 42 U.S.C. § 2000e-2(m).

The ADEA and Title VII have the same standards for liability. Employment

discrimination is established either by direct evidence, Trans World Airlines, Inc. v.

Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985); Teamsters v. United

States, 431 U.S. 324, 358 n.44, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), see Haskell v.

Kaman Corp., 743 F.2d 113, 119 (2d Cir. 1984) (age discrimination), or proof of

circumstances through the burden shifting analysis of McDonnell Douglas v. Green,

411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), that an inference of

discrimination may be drawn, Haskell, supra, 743 F.2d at 119; see Delaney v. Bank of

America Corp., 766 F.3d 163, 167-68 (2d Cir. 2014) (age discrimination) (Docket No. 44,

Defs. Memo. at 9); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010)

(same).

To state a prima facie case for age or religion discrimination, Sister Kaczmarek

must demonstrate that she is a member of a protected group (alleging either that she is

over 40 years old or practices a particular religion); that she qualified for her position; that

she was subject to an adverse employment action; and that this action occurred under

circumstances that give rise to an inference of discrimination, Grastorf v. Community

Bank, N.A., No. 19CV1627, 2023 WL 2266336, at *7 (W.D.N.Y. Feb. 28, 2023) (Skretny,

J.), reconsideration denied, 2023 WL 3570437 (W.D.N.Y. May 19, 2023) (Skretny, J.);

Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003) (race, gender, and age

discrimination); Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir. 2008) (religion

discrimination); Aljarah v. Citigroup Inc., 450 F. Supp. 3d 329, 333 (W.D.N.Y. 2020)

(Geraci, C.J.) (religion discrimination). Further, she must establish that her age or religion

motivated D’Youville’s decision, Hazen Paper Co. v. Biggins, 507 U.S. 604, 610,

113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (id. at 10-11); University of Texas Sw. Med. Ctr.

v. Nassar, 570 U.S. 338, 348-49, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) (quoting

42 U.S.C. § 2000e-2(m)). This prima facie case standard is not onerous, Texas Dep’t of

Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981);

see Aljarah, supra, 450 F. Supp. 3d at 333 (de minimis standard, quoting Weinstock v.

Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)).

Upon Sister Kaczmarek meeting this prima facie case burden, the burden of

persuasion shifts to Defendants to articulate some legitimate, non-discriminatory reason

for their action, McDonnell Douglas, supra, 411 U.S. at 802. Once Defendants meet this

burden, the burden shifts back to Plaintiff to show that the stated non-discriminatory

reason was pretext, id. at 807. The ultimate burden of persuasion remains with Plaintiff,

Burdine, supra, 450 U.S. at 253.

3. Title VII Retaliation

Title VII makes it unlawful for an employer “to discriminate against an employee

‘because he has made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this subchapter,’” Terry, supra, 336 F.3d at

140 (quoting 42 U.S.C. § 2000e-3(a)).

To establish a prima facie case of retaliation under Title VII for her Third Cause of

Action, Sister Kaczmarek must show (1) her participation in a protected activity known to

the employer, (2) an employment action disadvantaging her, and (3) a causal connection

between the protected activity and the adverse action, Terry, supra, 336 F.3d at 140-41

(quotation omitted). The protected activity must be the but-for cause of the adverse

action, Nassar, supra, 570 U.S. at 362 (id.).

One retaliatory employment action is the failure to investigate a complaint that can

dissuade an employee from filing a charge, see Cox, supra, 760 F.3d at 146 (Docket

No. 49, Pl. Memo. at 16-17).

B. Parties’ Contentions

Defendants first argue that Sister Kaczmarek’s First Cause of Action fails as a

matter of law because Sister Kaczmarek has not established her prima facie case

because there is no evidence showing circumstances giving rise to an inference of age

discrimination (Docket No. 44, Defs. Memo. at 9-13). They contend that Sister

Kaczmarek lacked evidence of discriminatory or retaliatory animus because D’Youville

laid off Plaintiff and other Education Department faculty pursuant to the AAUP collective

bargaining agreement retrenchment process (id. at 1, 2). Furthermore, her termination

was for a legitimate, nondiscriminatory reason, the plummeting student enrollment in

Education Department programs (id. at 3, 13-14). Defendants next argue that Sister

Kaczmarek cannot show pretext for their reason for the termination (id. at 14-17).

Next, Defendants claim that Sister Kaczmarek’s religious discrimination (Second

Cause of Action) and retaliation (Third Cause of Action) claims fail to state a claim (id. at

17-19, 19-22).

Sister Kaczmarek responds that she was “an experienced, long serving and

eminently qualified individual from her position as a Professor of Education and her

position as an Archivist and her replacement by a far less qualified and much younger

individual,” (Docket No. 49, Pl. Memo. at 1). She states that issues of material fact exist

precluding summary judgment (id. at 14 (questions on extension of tenure in other

University programs)). She claims the established her prima facie case for age and

religious discrimination (id. at 12-14 (age), 14-16 (religion)) as well as her retaliation claim

(id. at 16-17).

Defendants reply that Sister Kaczmarek lacked admissible evidence to show an

issue of material fact (Docket No. 52, Defs. Reply Memo. at 2-4), for example she lacked

evidence for her claim that someone in the D’Youville administration said that the nun

had to go. They contend that Plaintiff did not clearly allege the basis for retaliation,

presumably for religious discrimination (id. at 9-10).

C. Age Discrimination

As for Sister Kaczmarek’s First Cause of Action and the prima facie case for age

discrimination, she does not allege direct evidence of age (or religion) discrimination.

Sister Kaczmarek was in the protected class and suffered an adverse employment action.

She established that she was qualified as a professor and became qualified as an

archivist, although she does not have a degree in library science.

Sister Kaczmarek, however, has not shown an inference of discrimination arising

from D’Youville’s retrenchment of the Education Department. Although she claims that

younger faculty were retained while she and older members were laid off, Sister

Kaczmarek does not provide the ages of the other faculty (both those retained and those

let go) to establish that claim. She does not point out that younger faculty members, for

example, were reassigned from the Education Department while she was not. She also

does not allege the age of the adjunct faculty or administrators that taught the three

students in 2019 in the University‘s C&I Program even if one assumes that program is

equivalent to the retrenched Education Department programs Sister Kaczmarek taught

in. She alleges (cf. Docket No. 1, Compl. ¶ 33) that Education Department programs she

taught continued after retrenchment but Sister Kaczmarek offers no proof of continued

teaching. Finally, she has not shown that her age was the but-for reason for her

termination. Sister Kaczmarek argues anecdotally that D’Youville retained four

employees in their thirties while letting her go (Docket No. 49, Pl. Memo. at 13) as well as

other, unnamed older employees (id., citing Docket No. 44, Defs. Atty. Affirm. Ex. A, Pl.

EBT Tr. at 166). She does not state the position these younger employees held and

whether they replaced older employees.

Sister Kaczmarek thus has not met her prima facie burden establishing an

inference of age discrimination and Defendants’ Motion for Summary Judgment (Docket

No. 44) dismissing the First Cause of Action is granted.

Even if Sister Kaczmarek somehow meets the not onerous prima facie burden,

Defendants proffered non-discriminatory reasons for her termination, which this Court

now accepts, see Escribano v. Greater Hartford Acad. of Arts, No. 3:08 CV 248, 2009 WL

10677574, at *4 (D. Conn. Aug. 28, 2009), aff’d, 449 F. App’x 34 (2d Cir. 2011) (summary

Order). D’Youville contends that enrollment in the Education Department decreased to

single figures thus for budgetary reasons the school had to retrench those programs.

Despite Sister Kaczmarek’s argument that enrollment is cyclical and she anticipated

increased enrollment in 2022-24 (cf. Docket No. 48, Pl. Statement ¶ 10), D’Youville had

decreased enrollment over the last two decades, much due to the changes in teaching

certification in Ontario, a prime source of the student population for D’Youville.

Even if D’Youville reduced enrollment two years before retrenching the Education

Department programs (cf. Docket No. 1, Compl. ¶ 14), Sister Kaczmarek has not shown

this decision was to further discriminate against her.

Defendants point out that this retrenchment applied to the entire Education

Department (Docket No. 44, Defs. Memo. at 15) and is not limited to the more senior

faculty members. Sister Kaczmarek was one of an entire faculty who was let go.

Similarly, in Escribano, Maria Escribano, a Hispanic teacher, alleged ethnicity

discrimination in her lay off while the defendant school argued that she was let go due to

budget cuts. The district court accepted the school’s proffered reasons that the program

Escribano taught in was cut due to budgetary constraints with evidence in that record of

at least one Caucasian teacher also losing her classes, Escribano, supra, 2009 WL

10677574, at *1, 4.

The diminished enrollment here without regard to the age of the faculty members

provides a non-discriminatory reason for eliminating Sister Kaczmarek’s faculty position.

The burden then would shift to Sister Kaczmarek to show that this reason was pretext.

She cannot meet that burden. Absent allegations of the age of the faculty or disputing

the enrollment figures, Sister Kaczmarek cannot show that diminishing enrollment was a

mere pretext for age discrimination.

Therefore, this Court grants Defendants’ Motion (Docket No. 44) for Summary

Judgment dismissing the First Cause of Action.

D. Religion Discrimination

For her Second Cause of Action and absent allegation of direct evidence of

discrimination, Sister Kaczmarek needs to establish her prima facie case for employment

discrimination based upon her religion. Despite suing D’Youville University, an institution

founded by the Grey Nuns, Sister Kaczmarek alleged membership in a protected class

as a Roman Catholic and a member of the Grey Nuns order. Her terminations as a

professor and archivist were adverse actions and (as stated for her age discrimination

claim) Sister Kaczmarek was qualified for either position.

As with her age claim, the issue here is the inference of discriminatory intent for

her religion. With her faculty position, Sister Kaczmarek has not established D’Youville’s

retrenchment of the Education Department manifested an inference of discriminatory

intent. Although she alleges that she was terminated because she was a Grey Nun,

D’Youville terminated the entire Education Department without regard to their faith or

membership in a religious order.

Termination of Sister Kaczmarek’s position as archivist, however, is problematic.

Sister Kaczmarek testified that she was the last Grey Nun employed by D’Youville

(Docket No. 44, Defs. Atty. Affirm. Ex. A, Pl. EBT Tr. at 172). She alleges that the archivist

was a position in the University Library and not the Education Department (Docket No. 48,

Pl. Statement ¶ 14; see Docket No. 49, Pl. Memo. at 5) while Defendants argue that she

was “assigned to perform part-time Archivist duties for the College library” (Docket No. 44,

Defs. Statement ¶ 14). This poses an issue of material fact as to which entity

administered Sister Kaczmarek’s archivist position, was it the Education Department or

the Librarian. If the archivist was under the Librarian, Defendants invoking student

enrollment in the Education Department to justify terminating the archivist position is

pretextual.

Historically, a Grey Nun served as D’Youville’s archivist, save for 5 years of the

last 58 years of the existence of that position. Sister Kaczmarek claims that D’Youville

Vice President Steadman said two things, that D’Youville reassigned Sister Kaczmarek

to the archivist position to keep her employed and stated that “the nun must go” (Docket

No. 1, Compl. ¶ 54; Docket No. 48, Pl. Memo. Ex. 5; Docket No. 49, Pl. [Amended] Memo.

at 15, Ex. 5). Plaintiff’s exhibit opposing Defendants’ Motion, however, is a note claiming

the President Clemo stated that “the nun has to go” (Docket No. 48, Pl. Ex. 5).

She also alleges that she was rejected when she applied for the Chief Mission

Officer position, a position traditionally held by a Grey Nun.

Drawing inferences form the evidence in her favor as opponent to the Motion for

Summary Judgment, Sister Kaczmarek thus meets the light prima facie burden that her

termination as part-time archivist was due to her religion and membership in an order.

The burden then shifts to Defendants to articulate a non-discriminatory reason for

terminating her as archivist.

President Clemo vehemently denies saying “the nun has to go,” claiming that

Sister Kaczmarek first attributed the statement to a now former Vice President

(Steadman) and later claimed that President Clemo said it (Docket No. 44, Clemo Decl.

¶ 20). Further, Defendants cite Sister Kaczmarek’s deposition testimony that (1) she

misidentified who said that; (2) that she did not hear the statement herself; and (3) she

learned of it from an unnamed colleague (Docket No. 44, Defs. Atty. Affirm., Ex. A, Pl.

EBT Tr. at 173-75). They also dispute the admissibility of the handwritten note (Docket

No. 48, Pl. Ex. 5) stating that “the nun has to go” which was not produced in discovery

and no provenance was given for it (Docket No. 52, Defs. Reply Memo. at 8 n.5).

This presents additional issues of material fact whether (or who) made the

statement that may have shown D’Youville or President Clemo’s religious bias despite

being from an institution established by a Catholic religious order. The statement that

“the nun has to go” undermines any non-discriminatory reason for terminating the

archivist position (and Sister Kaczmarek’s employment).

Unlike the enrollment losses in the Education Department programs, there is no

objective reason for ending the archivist position. D’Youville only argues that

administrators concluded that as a smaller institution it no longer needed an archivist.

D’Youville here merely implies (without alleging) the added costs for retaining a part-time

archivist, using the retrenchment of the Education Department as an opportunity to

eliminate an archivist for a small institution. D’Youville established and retained an

archivist in 1965 while being a smaller institution than Cornell the comparator President

Clemo now uses to disclaim D’Youville’s need for an archivist (cf. Docket No. 44, Clemo

Decl. ¶ 15).

There are issues of fact precluding judgment to Defendants. Defendants also fail

to meet their burden establishing a non-discriminatory reason for discontinuing the

archivist position (and terminating Sister Kaczmarek as a result). Therefore, this Court

need not reach the final McDonnell Douglas step of Sister Kaczmarek showing that

Defendants’ stated reason was pretext.

Thus, this Court grants in part (dismissing Sister Kaczmarek’s discrimination claim

for the retrenchment as professor in the Education Department) and denies in part

(retaining her claim for termination as archivist) Defendants’ Motion for Summary

Judgment (Docket No. 44) dismissing the Second Cause of Action.

E. Retaliation for Complaints

For her Third Cause of Action retaliation claim in violation of Title VII (hence her

religion discrimination claim), Sister Kaczmarek alleges Defendants retaliated against her

for complaining about retrenchment of the Education Department by not investigating her

complaints. Her complaints about age discrimination, however, were not alleged are thus

not actionable.

Sister Kaczmarek first must exhaust this retaliation claim before the State Division

of Human Rights or the EEOC, see Terry, supra, 336 F.3d at 151; Hamzik v. Office for

People with Dev’al Disabilities, 859 F. Supp. 2d 265, 277 (N.D.N.Y. 2012). This Court

observes that Sister Kaczmarek did not indicate retaliation in her New York State Division

of Human Rights charge by checking the “retaliation” box on the charge but stated a claim

for retaliation for opposing discrimination in the narrative (Docket No. 44, Clemo Decl.

Ex. B, charge form at 2, addendum at 3). The State Division of Human Rights Charge

form frames retaliation only in assisting in filing a discrimination complaint, rather than a