Opinion
4608-2012
06-17-2015
Michele Kucic, Plaintiff, v. Mamaroneck Union Free School District, ELIZABETH CLAIN, as Principal of Mamaroneck Union Free School District and individually as aider and abettor under Executive Law and ROBERT SHAPS as Superintendent of Mamaroneck Union Free School District and individually as aider and abettor under Executive Law, Defendants.
STUART LEE KARLIN, ESQ. Attorney for Plaintiff 9 Murray Street, Suite 4W New York, NY 10007 RUTHERFORD & CHRISTIE, LLP Attorneys for Defendants 369 Lexington Avenue, 8th Floor New York , NY 10017
STUART LEE KARLIN, ESQ.
Attorney for Plaintiff
9 Murray Street, Suite 4W
New York, NY 10007
RUTHERFORD & CHRISTIE, LLP
Attorneys for Defendants
369 Lexington Avenue, 8th Floor
New York , NY 10017
Joan B. Lefkowitz, J.
Plaintiff sues alleging age discrimination under Executive Law §296. Plaintiff, who was 45 years old at the time, claims that she was fired from her nontenured job as orchestra teacher in the Mamaroneck Union Free School District in 2012 because of her age. Following the completion of discovery defendants move for an order granting summary judgment dismissing the complaint.
"In order to establish a prima facie case of age discrimination under Executive Law §296, a plaintiff must plead and prove that (1) he or she is a member of a protected class, (2) he or she was actively or constructively discharged, (3) he or she was qualified to hold the position from which he or she was discharged, and (4) the discharge occurred under circumstances giving rise to an inference of discrimination. Once a prima facie case is made, the burden shifts to the employer to rebut the presumption with evidence that the plaintiff was discharged for a legitimate, nondiscriminatory reason. If such evidence is produced, the presumption is rebutted and the factfinder must determine whether the proffered reasons are merely a pretext for discrimination. " (Listemann v Philips Components, 13 AD3d 494, 494 [2d Dept 2004][citations omitted]).
"A defendant seeking summary judgment dismissing a cause of action alleging age discrimination must demonstrate either that, as a matter of law, the plaintiff cannot establish the elements of intentional discrimination, or that the plaintiff cannot raise a triable issue of fact as to whether the facially legitimate, nondiscriminatory reasons proffered by the defendants for their challenged actions were pretextual" (Considine v Southhamptom Hosp., 83 AD3d 883, 884 [2d Dept 2011] [internal quotation marks and citations omitted]). To demonstrate pretext and "defeat a properly supported motion for summary judgment in an age discrimination case, plaintiff must show that there is a material issue of fact as to whether (1) the employer's asserted reason for [the challenged action] is false or unworthy of belief and (2) more likely than not the employee's age was the real reason [for her termination]" (Ferrante v American Lung Ass'n, 90 NY2d 623, 630 [1997] [internal quotation marks and citations omitted]).
Here, defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence that plaintiff's employment was terminated for legitimate, nondiscriminatory reasons.
In July 2011 the defendant, Mamaroneck Union Free School District (hereinafter "District"), hired Michelle Kucic, as its high school orchestra teacher for the 2011-2012 school year. Previously, Kucic had been a tenured teacher in the Syosset Central School District for ten years and in the Sayville School District for ten years. At Mamaroneck High School plaintiff taught three orchestra classes and was responsible for two chamber orchestras and several smaller instrumental groups, many of which practiced prior to the start of the school day.
In support of their motion for summary judgment dismissing the complaint, the defendants submitted the deposition testimony of the high school principal, Elizabeth Clain. According to the principal, students and parents began to complain about plaintiff's classes soon after the start of the Fall 2011 semester and the complaints continued into January and February of 2012. The complaints concerned the students' dissatisfaction with the classes taught by plaintiff. Some of the students, who had been playing instruments since elementary school, considered dropping plaintiff's orchestra classes. The principal became concerned that the orchestra classes, which were supposed to be a safe haven for the students, were becoming classes the students wanted to avoid.
The principal testified that the concerns expressed by the parents and students were confirmed by her formal and informal observations of plaintiff's classes. On November 29, 2011, the principal conducted a formal observation of plaintiff's symphony orchestra class. A formal observation is required by the collective bargaining agreement between the District and its teachers. It consists of a pre-observation conference, the actual observation of a class and a post-observation conference. In addition, the observer prepares a written report of the observation which is shared with the teacher. The principal's written report of her observation of plaintiff's class is divided into four headings: Planning, Class Climate, Timing and Areas of Concern. Under the Planning Section the principal commended plaintiff for clearly stating the objective of making the music more dramatic and observed that after the lesson the student's performance was in fact more dramatic. As result, the principal noted at the end of the report that plaintiff's lesson had "met a majority of the objectives outlined in the pre-observation conference." In the Class Climate Section the principal observed that the plaintiff limited her questions to certain students and prefaced some of her questions by naming the student who was to answer thereby signaling the other students not to think about the question presented. The principal also noted that plaintiff would respond to a student's answer by stating what she thought the answer should be resulting in a shut down of the classroom discussion. In addition, the principal observed several students were not paying attention or chatting with other students during class. The principal observed "a significant lack of joy in this classroom." In the Timing Section of the report the principal observed that "Ms. Kucic moved the lesson at a rapid pace without giving students time to digest and enjoy the music," and cited several examples to illustrate the point. The principal concluded that because of the rapid pace students missed opportunities to reflect on how their own playing had changed and how the orchestra sounded differently due their playing the music more dramatically. The principal also noted that plaintiff ended the class eight minutes early. In the Areas of Concern Section the principal observed, "while your lesson did address your objectives I am still concerned about the atmosphere in your classroom." The principal testified she wrote "still concerned" because she had previously addressed this issue with plaintiff. The principal stated she could hear that the students played the music more dramatically after the lesson but that she did not observe "the students' commitment to the music and to you." The principal encouraged plaintiff to work on building camaraderie and joy in the classroom and gaining the trust of her students. Finally, the principal suggested that plaintiff observe the classes of some of her colleagues to see what the principal was referring to and to get a sense of what the school was looking for in building student morale.
The collective bargaining agreement calls for three formal observation of non-tenured teachers. The District conducted three formal observations of plaintiff, the first on October 11, 2011, by an assistant principal; the second on November 29, 2011, by the principal and the assistant superintendent for curriculum and instruction; and the third on March 27, 2012 (the report of the third observation was not attached to plaintiff's affidavit - plaintiff stated it was attached as Exhibit 18 but only 16 exhibits were attached to the affidavit submitted to the court).
The principal testified that she met with plaintiff on occasion to discuss methods to improve plaintiff's classroom management and create a better classroom atmosphere, areas of concern that were identified in the complaints of students and parents and in the formal and informal observations of the principal and her colleagues. The principal testified that plaintiff did not demonstrate improvement in those areas over time. The complaints from students and parents culminated in a January 14, 2012, email from the parents of a student in an orchestra class. The parents reported that one day recently the plaintiff had not taught an orchestra class but rather spent the classroom time talking about a complaint made by parents of a student to the principal. According to the email, after disclosing that a complaint had been made to the principal, the plaintiff asked the students if they had any complaints, and then quickly called on shy students, who had not volunteered to answer the question, to respond, causing these students extreme discomfort. The email went on to state that some of the "more vocal students" volunteered answers that "voiced their unhappiness regarding a number of issues." The parents concluded the email by stating "what used to be a bright spot of [their child's] day [orchestra class] has become an upsetting experience and we are concerned about that." The principal testified that in her opinion the plaintiff's actions in disclosing and discussing such confidential material demonstrated a surprising lack of judgment.
As one of her responsibilities the principal must recommend to the District's administration whether or not the employment of a probationary teacher should be continued. She makes her recommendation by filing with the administration a District-generated form entitled "Probationary Staff Recommendation for Year 1 and Year 2 - Teachers and Teacher Assistants." On January 28, 2012, the principal filed her recommendation concerning plaintiff. In her Probationary Staff Recommendation report the principal observed, "Michelle is all business in the classroom. She has tried to incorporate feedback that she has been given about her classroom presence but there are still outstanding concerns and the main one is that students are reporting that they dread' and loathe' going to orchestra. A class that used to be (and should be) a highlight of the day has become a source of stress and unhappiness for some students. Michelle has failed to create a climate of openness where students are eager to take risks and eager to please." The principal also identified problems with plaintiff's contribution to the students' development noting students' complaints about plaintiff being judgmental and unreceptive to their feedback, plaintiff's lack of recognition of the students' commitments in classes and activities other than orchestra, and plaintiff's inappropriate choice of music to be performed, with some choices being too difficult and others too easy. Thus, the principal did not recommend to the District's administration that plaintiff be rehired for the next school year.
The affidavits of Annie Ward, the District's Assistant Superintendent for Curriculum and Instruction, were submitted in support of the defendants' motion. Ward described the comments she received from parents and students about plaintiff. In October Ward heard from parents and students that students were not happy with the quality of plaintiff's lessons, and that they were concerned with the level of their preparation for performances. Ward stated that she participated in the same formal observation of plaintiff as the principal in November 2011. Ward sent plaintiff her comments by email. In the email Ward noted that the music sounded beautiful after plaintiff's lesson. However, Ward also stated that she had "a concern that you didn't have the kids with you' throughout the lesson," noting that the students were restless, slouching and twirling their instruments during class. Ward offered two suggestions. First, plaintiff should be more enthusiastic and energetic in dealing with the students. Second, plaintiff could improve her questioning techniques by posing questions to the entire class rather than to a single student, and by allowing more time for students to volunteer responses. Ward stated she met with plaintiff in order to convey her concerns which arose as a result of her observation and the complaints she had received. She advised plaintiff of the need for improvement and offered plaintiff her support.
The defendants submitted the affidavit of Diane Madden, the teacher who served as the District's Music Department Coordinator. Ms. Madden stated that she began to receive complaints from parents and students regarding plaintiff's lack of warmth with the students, her inability to keep them interested in the music program and their fear that they were inadequately prepared for performances. She reported that some students were considering dropping out of the music program. She offered as an example the reduction of the number of chamber groups due to the students' lack of interest. Ms. Madden stated that the complaints continued through the school year. In November 2011 Madden received a letter from parents of a student. The parents described how their daughter had spent a long four days practicing for and performing in the Area All-State Concert in Purchase, New York. Their daughter did not get home until after 11:00 p.m. on the night of the All-State Concert and was exhausted the next day. The parents gave their daughter permission to miss the Cello Choir class, a non-credit class that met voluntarily at 7:15 a.m. before the start of school. When the student did not arrive for the 7:15 class plaintiff asked students use their cell phones to call the absent student. The parents considered plaintiff's behavior under the circumstances to be "insensitive at best and bizarre and inappropriate at worst," and concluded their letter by noting that plaintiff had engendered a lack of motivation and poor morale among her students in the two months she had been teaching for the District.
The defendants' also submitted the deposition testimony of Linnet Tse, a member of the District's Board of Education and a parent of two students who had recently graduated from Mamaroneck High School. Tse testified that her sons had played trumpet in the high school band and orchestra and that she remained active with the music department after her sons' graduation. She testified that as a result of her role as a parent involved in the music program and as a member of the Board of Education parents approached her with complaints about plaintiff. Tse testified that she did not act upon the initial complaints because plaintiff was new to the District and was replacing a very popular orchestra teacher who had retired the year before. As such she recognized that plaintiff deserved time so students and parents could adjust to the change. However, the complaints continued and culminated in a lengthy email from a parent in February 2012 which set forth the parent's perception of a number of plaintiff's shortcomings in teaching class and in leading the high school's orchestras, shortcomings which posed a threat to the continued vitality of the high school orchestra program. Tse shared this email with her fellow members of the Board of Education and with the District's Superintendent and Assistant Superintendent for Curriculum and Instruction. Two Board members responded by observing that they too had received similar complaints from parents.
The District submitted the deposition testimony and affidavit of the District's Superintendent of Schools, Dr. Robert L. Shaps. Dr. Shaps described the process by which probationary teachers are hired and fired. Teachers who have yet to earn tenure are subject to a three-year probationary period. Teachers, like plaintiff, who have earned tenure in another school district are subject to a two-year probationary period. A determination whether to retain or terminate a probationary teacher is made early in the spring semester in order to allow the District time to find a suitable replacement. The longer a district waits, the fewer candidates are available for hire since other school districts are also recruiting teachers. Thus, sometime in February Shaps determined that he would recommend to the Board of Education thatplaintiff's employment be terminated. The Superintendent made this determination based upon his consultation with plaintiff's immediate supervisor, the high school principal, and with the District's Assistant Superintendent for Curriculum and Instruction, both of whom recommended that plaintiff not be rehired. In March 2011 the principal advised plaintiff of the Superintendent's determination. At the June 2012 Board of Education meeting the Board followed the Superintendent's recommendation and voted to terminate plaintiff's employment.
The Superintendent provided plaintiff with the reasons for his recommendation in a letter dated May 15, 2012. Among the reasons the Superintendent cited were plaintiff's failure to consistently demonstrate that her instruction produced active student involvement, her failure to consistently respond to supervisor feedback and make appropriate adjustments, her failure to consistently demonstrate effective classroom management techniques and her failure to establish a classroom environment conducive to learning. The Superintendent noted that the deficiencies he listed were based upon evaluative criteria set forth in the regulations of the Commissioner of Education and in the District's Annual Performance Review Plan.
With this evidence defendants established that plaintiff's employment was terminated for legitimate nondiscriminatory reasons (see, Ehmann v Good Samaritan Hosp. Med. Ctr., 90 AD3d 985 [2d Dept 2011]). Thus, the burden shifted to plaintiff to raise a triable issue of fact whether the facially legitimate, nondiscriminatory reasons for her termination were pretextual. In other words, the burden shifted to plaintiff to raise a triable issue of fact whether the District's asserted reason for the termination of her employment was false or unworthy of belief and more likely than not the plaintiff's age was the real reason for her termination (Ferrante, supra).
Plaintiff failed to meet her burden. Plaintiff's argument that the District's stated reasons for the termination of her employment were a pretext, and that the real reason for her termination was her age, rests on three grounds. First, plaintiff claims she was fired so the District could save money because her replacement, who was younger and less experienced, was paid less than plaintiff. Second, plaintiff claims the District failed to follow District procedures in evaluating her performance as a teacher and in terminating her employment. Third, plaintiff claims she received many commendations while teaching in the District and that each of the three observation reports prepared by her supervisors stated that her lessons met a majority of the planned objectives.
There is no evidence in the record that anyone in the District ever cited plaintiff's age as a reason for her termination. Indeed, plaintiff makes no such claim. Rather, plaintiff argues that age discrimination may be inferred because District was under pressure to save money, and did so by replacing her salary, which reflected her twenty years of teaching experience, with the lower salary of a younger, less experienced, teacher. As proof that she was fired because of her age, plaintiff points to the comment made by the principal to her father that plaintiff's employment was terminated for budgetary reasons, and to the comment made to her by Ms. Madden, the District's Music Coordinator, that it was cheaper for the District to replace her with a less experienced teacher, and to the comment of the Assistant Superintendent for Personnel that she was "making a lot of money."
Plaintiff's argument that the District's purported cost-saving motive is age discrimination in disguise fails on two levels. First, even assuming for the purposes of argument that the District's decision to terminate plaintiff was based on the fiscal benefits of hiring a less experienced teacher, such a motive does not equate with an age discrimination motive. "An employer's concern about the economic consequences of employment decisions does not constitute age discrimination . . . even though there may be a correlation with age (Criley v Delta Air Lines, Inc., 119 F2d 102, 105 [1997]); see also, Hazen Paper Co. v Biggins, 507 US 604 [1993]). Indeed, plaintiff does not argue that the District's decision was a direct function of her age, but rather it was a function of her years of service (Williams v City of New York 215 WL 2116328 [2d Cir 2015]). Second, the stray remarks of Ms. Madden and the principal to plaintiff and plaintiff's father that plaintiff's termination was due to the District's budget, rather than plaintiff's performance, may be viewed as expressions of her supervisors' tact rather than as evidence of the District's discriminatory animus ( Mete v New York State Off. of Mental Retardation and Dev. Disabilities, 21 AD3d 288 [1st Dept 2005]; Rollins v Fencers Club, Inc., 128 AD3d 401 [1st Dept 2015]).
In fact, the principal, who makes no decisions on the District's budget, had earlier recommended to the administration that the plaintiff not be rehired due to deficiencies in plaintiff's classroom performance.
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Plaintiff's claim that age discrimination may be inferred from the District's failure to follow proper procedure in evaluating plaintiff and in terminating her employment is not supported by evidence in the record. Plaintiff claims that the District conducted only two of the three required observations before deciding to terminate her employment, that the District did not prepare plaintiff's Year-end Summative Evaluation and that the District began advertising for an orchestra teacher before advising her that she would not be rehired. The District's Annual Performance Review Plan requires three formal observations. The District performed three observations of plaintiff's class. The Review Plan does not require that the District conduct all three observations prior to a determination whether a probationary teacher's employment is continued with the District. The Review Plan also calls for a Year-end Summative Evaluation of a teacher's performance. However, in plaintiff's case the need for a Summative Evaluation was rendered moot by the District's decision to terminate plaintiff's employment for the reasons stated in the Superintendent's May 15, 2012, letter. Lastly, there is nothing in the record to suggest that a school district is required to notify a teacher of its decision not to rehire the teacher before it may take steps to recruit a replacement.
Finally, plaintiff claims that the District's stated non-discriminatory reasons for the termination of her employment are unworthy of belief and a pretext for discrimination in view of her accomplishments in the District and the positive feedback she received from administrators and colleagues. There is no doubt that plaintiff should be proud of her accomplishments in the District and for the commendations she received for aspects of her teaching. However, plaintiff ignores substantial evidence in the record of the shortcomings in her teaching performance which were identified by her supervisors and reported to the District's administration by parents and students. Plaintiff claims the fact that she met the majority of her objectives when teaching observed lessons belie the District's claim she was fired for reasons related to her classroom performance. However, while it may be true that plaintiff met the majority of her lesson's objectives during her three formally observed classes, it cannot be denied that the reports also identified several aspects of her teaching performance that required improvement. As the Superintendent testified at deposition, the reports of plaintiff's formal observations are not wholly positive or wholly negative, rather they are "mixed" at best.
Since the defendant established that the District had legitimate nondiscriminatory reasons for the termination of plaintiff's employment, and since plaintiff failed to raise a triable issue of fact whether those reasons were false or unworthy of belief or whether it is more likely than not that plaintiff's age was the reason for her termination (See Ferrante, supra; Lichtman v Martin's News Shops Mgt., Inc., 81 AD3d 696 [2d Dept 2011]; Michno v New York Hosp. Med Ctr. of Queens, 71 AD3d 746 [2d Dept 2010]), the motion for summary judgment is granted and the complaint is dismissed.
E N T E R,
Dated: White Plains, New York
June 17, 2015_________________________________
HON. JOAN B. LEFKOWITZ, J.S.C.