Opinion
INDEX No. 10-21387 CAL No. 12-00407OT
03-04-2013
LESLIE MACE, Plaintiff, v. SMITHTOWN CENTRAL SCHOOL DISTRICT, Defendant.
BARRY V. PITTMAN, ESQ. Attorney for Plaintiff DEVITT SPELLMAN BARRETT, LLP Attorney for Defendant
SHORT FORM ORDER PRESENT:
Hon. JOSEPH FARNETI
Acting Justice Supreme Court
MOTION DATE 7-26-12
ADJ. DATE 11-1-12
Mot. Seq. # 001 - MG; CASEDISP
BARRY V. PITTMAN, ESQ.
Attorney for Plaintiff
DEVITT SPELLMAN BARRETT, LLP
Attorney for Defendant
Upon the following papers numbered 1 to 30 read on this motion to dismiss and for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1-17; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 18-28; Replying Affidavits and supporting papers 29-30; Other ____; it is,
ORDERED that this motion by defendant for an Order, pursuant to CPLR 3211(a)(7), dismissing plaintiff's third cause of action alleging violation of established hiring practices, and, pursuant to CPLR 3212, granting summary judgment in its favor dismissing the remaining causes of action of the complaint is granted.
This is an action to recover damages for alleged employment discrimination based on age and religion in violation of the Human Rights Law and the Executive Law § 296, and in violation of established hiring practices. Plaintiff had been an employee of defendant, Smithtown Central School District, for 31 years, was 62 years old when she left her employment on October 9, 2009, and was an active participant of the Jewish faith. Between July 1, 2003 and October 9, 2009, plaintiff was employed by defendant as an Administrator for Grants and Human Resources.
Plaintiff alleges that when the post of Assistant Superintendent for Personnel was vacated by the newly-appointed Superintendent of Schools, Edward Ehmann, whom plaintiff had worked with closely, Mr. Ehmann promised to recommend plaintiff to the Board of Education for the post of Interim Assistant Superintendent for Personnel, which he did not do, and that when confronted by plaintiff, he acknowledged that he could not request her appointment for political reasons, because he was being pressured for the post by a recently-retired Board of Education member with no personnel experience. In addition, plaintiff alleges that the committee that subsequently interviewed her on July 24, 2007 for the available position was comprised of only one central office administrator, Jennifer Bradshaw ("Ms. Bradshaw"), who was inexperienced and non-tenured and chaired the committee, in direct violation of defendant's Recruiting and Hiring Policy for the selection of central office administrator positions. Plaintiff also alleges that on or about July 31, 2007, she learned that Karen Ricigliano ("Ms. Ricigliano"), an employee with no personnel experience, had obtained the post, and that despite informing Mr. Ehmann that the appointment was illegal because the committee was not properly constituted, plaintiff was refused another interview.
According to plaintiff, one month after starting at her new position, Ms. Ricigliano refused to give plaintiff a computer access code required for plaintiff to perform a task that she had performed the previous four years of hiring administrators, thereby effectively terminating that portion of plaintiff's job. Plaintiff adds that Ms. Ricigliano did not conduct a one-on-one conversation with plaintiff until April 2008. Plaintiff further alleges that her responsibilities were increasingly marginalized and effectively reduced to clerical duties. She claims that between May 2009 and August 2009, Mr. Ehmann , Ms. Bradshaw, Ms. Ricigliano and Mary Cahill, Assistant Superintendent for Instruction and Administration, commenced a campaign to direct plaintiff to perform unprecedented grant work on an unprecedented time schedule so that plaintiff would leave a negative impression. Plaintiff alleges that nevertheless she performed the work competently and in a timely manner. According to plaintiff, she received her first unsatisfactory annual evaluation in 31 years when she met with Ms. Bradshaw and Ms. Ricigliano on August 21, 2009, which evaluation plaintiff characterizes as inaccurate, slanderous and maliciously intended to harm plaintiff professionally. Plaintiff further claims that as a result of the August 21, 2009 events, she advised the Superintendent of her intention to retire, which was approved effective October 9, 2009. Plaintiff adds that she was replaced by a 34-year-old business administrative intern at $300 per day and a part-time employee at $500 per day, that of the 14 administrators leaving the school district since July 2006, six were Jewish, and that of the 23 administrative positions filled since July 2006, none are Jewish.
Defendant now moves for dismissal of plaintiff's third cause of action alleging violation of established hiring practices for failure to state a cause of action, and for summary judgment dismissing plaintiff's first and second causes of action for employment discrimination based on age and religion. Defendant asserts that it had legitimate, non-discriminatory reasons to promote Ms. Ricigliano rather than plaintiff inasmuch as Ms. Ricigliano had superior administrative experience extending over different school levels and better inter-personal, communication skills which the interviewing committee believed would be advantageous as well as crucial for the position of Assistant Superintendent for Personnel. In addition, defendant asserts that age and religious affiliation were not factors in the committee's recommendation, that there is no statistical evidence demonstrating that defendant is against promoting older administrators, in fact, Mr. Ehmann , Ms. Ricigliano and plaintiff were all promoted to administrative positions in their 50's, and that plaintiff relies on unsubstantiated allegations and conclusory assertions that defendant does not hire or promote Jewish people for administrative positions. Defendant also asserts that to the extent that plaintiff is alleging constructive discharge, plaintiff's material responsibilities did not change, as evidenced by plaintiff's self-evaluations for 2008 and 2009, and Ms. Ricigliano and Ms. Bradshaw were urging plaintiff to do more. Lastly, defendant argues that plaintiff's claim that defendant failed to adhere to its own policies and practices in forming a committee to consider a candidate is not a legally cognizable claim and that, in any event, Mr. Ehmann testified that there had been similarly comprised interview committees on numerous occasions. In support of its motion, defendant submits the affidavits of Ms. Ricigliano and Ms. Bradshaw, the notice of claim, the summons and complaint, defendant's answer, plaintiff's bill of particulars, the deposition transcripts of plaintiff, Mr. Ehmann and Ms. Ricigliano, the job description for Administrator for Grants and Human Resources, defendant's District School Improvement Team Plan, plaintiff's 2007/2008 evaluation by Ms. Bradshaw and Ms. Ricigliano, and plaintiff's administrative performance reviews for the end of year June 2008 and June 2009.
Initially, the Court determines that defendant is entitled to dismissal pursuant to CPLR 3211 (a) (7) of plaintiff's third cause of action alleging violation of established hiring practices inasmuch as it fails to state a cognizable cause of action (see Sabetay v Sterling Drug, Inc., 69 NY2d 329, 514 NYS2d 209 [1987]).
Executive Law § 296 (1) provides, "It shall be an unlawful discriminatory practice: (a) For an employer or licensing agency, because of an individual's age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment."
To establish entitlement to summary judgment dismissing a cause of action alleging age or religious discrimination in violation of Executive Law § 296, a defendant "must demonstrate either [the] plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for [its] challenged actions, the absence of a material issue of fact as to whether [its] explanations were pretextual" ( Forrest v Jewish Guild for the Blind , 3 NY3d 295, 305, 786 NYS2d 382 [2004]; see Ehmann v Good Samaritan Hosp. Med. Ctr., 90 AD3d 985, 985-986, 935 NYS2d 639 [2d Dept 2011]; Hemingway v Pelham Country Club , 14 AD3d 536, 536-537, 789 NYS2d 178 [2d Dept 2005]; see also Cenzon-Decarlo v Mount Sinai Hosp., 101 AD3d 924, 957 NYS2d 256 [2d Dept 2012]).
For a plaintiff alleging discrimination in employment under Executive Law § 296 to establish a prima facie case of discrimination, plaintiff must show that: (1) she is a member of a class protected by the statute; (2) she was qualified to hold the position; (3) she was terminated from employment or suffered another adverse employment action [active or constructive discharge]; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination (see Ferrante v American Lung Assn., 90 NY2d 623, 629, 665 NYS2d 25 [1997]; Dzikowski v J.J. Bums & Co., LLC , 98 AD3d 468, 469, 949 NYS2d 426 [2d Dept 2012]).
By her affidavit, Jennifer Bradshaw informs that she has been defendant's Director of Curriculum since 2005, that in July 2007 she chaired an interview committee for the open position of Assistant Superintendent for Personnel, that the committee interviewed plaintiff, Ms. Ricigliano and nine other applicants, and that on July 31, 2007 the committee unanimously recommended Ms. Ricigliano for the post. Ms. Bradshaw notes that the duties of an Assistant Superintendent for Personnel include representing the Superintendent in collective bargaining negotiations, counseling employees to resolve complaints, difficulties and other matters related to personnel management, and working with principals on difficult or sensitive personnel matters. Ms. Bradshaw explains that the committee was impressed with Ms. Ricigliano's superior communication skills, which they believed were crucial for the position, and that her wide range of administrative experience at every level in the district (chairperson at the high school level, an assistant principal at the middle school level, and a principal at the elementary school level) rendered her the best for the position among the various candidates. She adds that the committee believed that Ms. Ricigliano's experience would facilitate her staff management and noted that Ms. Ricigliano had experience working and handling contractual issues with the various bargaining units represented in the district.
Ms. Bradshaw also explains that defendant has a three tier interview process for applicants to central office administrative positions, that Level I interviews are conducted by a committee typically including unit presidents and/or their designees, Level II interviews are conducted by a committee of central administrators who recommend a small number of candidates, one or two, to the next level, and Level III interviews are conducted by the district Superintendent who then makes a recommendation to the Board of Education for appointment to the vacant position. She states that at times, such as during the subject interview, a combined Level I/Level II committee conducts the initial interview based on administrator and staff availability, and that the subject committee consisted of high school principal Ed Thompson, elementary school principal Mary Grace Lynch, director of social studies Mike Chlystun, presidents or heads of teachers, security guards, nurses and administrators' unions, and a PTA representative. Ms. Bradshaw emphasizes that in compliance with the district's recruiting and hiring procedures, the committee members did not inquire into nor discuss the applicants' ages or religious affiliations nor were they a factor in making their recommendation.
Ms. Bradshaw indicates her familiarity with plaintiff since 2005, having supervised plaintiff in several areas of her job such as writing State Education Department Reports and preparing applications for grants in connection with the "No Child Left Behind" initiative, and states that she noticed a change in plaintiff immediately after Ms. Ricigliano was named Assistant Superintendent in 2007. According to Ms. Bradshaw, plaintiff became very cold, less communicative and responsive, and her attitude toward her worsened during the 2008/2009 school year. She provides as an example plaintiff's refusal to comply with her request that plaintiff apply for a Title III entitlement grant, which should have been applied for years ago, saying it was too late in the year to do so thereby forcing plaintiff to draft the grant application, and adds that only after the Superintendent instructed plaintiff to apply for the grant did plaintiff submit the paperwork that Ms. Bradshaw prepared. She explains that she and Ms. Ricigliano drafted plaintiff's 2009 evaluation reflecting Ms. Bradshaw's frustration with plaintiff's lack of effort and her self-evaluation goal to perform at the same level for the following school year and concerns over her job performance without any consideration of plaintiff's age or religious affiliation in making said evaluation or in supervising plaintiff. Ms. Bradshaw concludes by stating that she needed plaintiff to do more, not less and therefore did not decrease the material responsibilities of her job as evidenced by plaintiff's self-evaluations for the 2007/2008 and 2008/2009 school years that are nearly identical.
Ms. Ricigliano informs in her affidavit that she began her employment with defendant in 1993 in the administrative position of Chairperson of the Foreign Language Department and thereafter became assistant principal of defendant's middle school, then principal of its elementary school and subsequently, in 2007 at the age of 50 was named Assistant Superintendent for Personnel. She explains that she and Ms. Bradshaw supervised plaintiff in her capacity as the Administrator for Grants and Human Resources. According to Ms. Ricigliano, from the time that she began as Assistant Superintendent for Personnel at the start of the 2007/2008 school year, plaintiff was curt with her and there was minimal communication, and as the year progressed she grew concerned that plaintiff was neglecting some of her work responsibilities. Ms. Ricigliano recites as examples that plaintiff failed to follow her directive to interview additional substitute teachers to be added to the district's roster and refused to make revisions to the district-wide teacher mentoring program plan for the coming year even though she was in charge of the mentor portion of the district's Professional Development Plan ("PDP"). She adds that she began to find plaintiff's work product to be hastily done and filled with inaccuracies citing an inaccurate seniority list that was relied on to determine which elementary school teachers were to be excessed and an inaccurate "Preferred Eligible List" which determined which teachers were eligible for recall if the district's budget allowed. Ms. Ricigliano states that she and Ms. Bradshaw drafted plaintiff's 2009 evaluation and that she needed plaintiff to do more yet plaintiff's decreased productivity directly affected Ms. Ricigliano and her staff by adding further responsibilities to their already hectic schedules. She adds that she never considered plaintiff's age or religious affiliation in drafting her evaluation or supervising her and that plaintiff's material responsibilities were unchanged as evidenced by her self-evaluations for the 2007/2008 and 2008/2009 school years.
Mr. Ehmann testified at his deposition on January 23, 2012 that plaintiff was replaced by an interim employee, whose age he did not know, paid at a per diem rate and that said employee was subsequently replaced by a permanent employee, also whose age and religion he did not know. Mr. Ehmann also testified that there are approximately 36 individuals on the district's Administrators Association membership and he did not know how many were Jewish, and that 40 administrative positions had been filled since July 2006 but he did not know how many were filled by persons of the Jewish faith.
Here, defendant met its prima facie burden of establishing that its decision not to promote plaintiff to the position of Assistant Superintendent for Personnel was based on legitimate, non-discriminatory reasons and not based on her age or religion (see Saia v Suffolk County Community College, 64 AD3d 640, 883 NYS2d 711 [2d Dept 2009]; Evans v Rosa Lee Young Childhood Ctr. , 276 AD2d 523, 716 NYS2d 579 [2d Dept 2000]). Defendant demonstrated that the applicants for the position were reviewed based on legitimate criteria and that their ages and religious affiliations were not considered and that based on said review, Ms. Ricigliano was found to be the most qualified.
An adverse employment action requires a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be "more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a 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, or other indices ... unique to a particular situation" ( Galabya v New York City Bd. of Educ. , 202 F 3d 636, 640 [2d Cir 2000] [citations and internal quotation marks omitted]; Forrest v Jewish Guild for the Blind , 3 NY3d 295, 306, 786 NYS2d 382). Defendant also established its entitlement to judgment as a matter of law by showing that the adverse employment actions complained of by plaintiff, including being denied the highest computer access code, not being appointed to chair interview committees, having to attend weekly meetings with superiors, poor communication with supervisors, negative performance reviews, being required to perform unprecedented grant work on an unprecedented time schedule, and decreased involvement in staffing related administrative decisions did not amount to her active or constructive discharge (see Ehmann v Good Samaritan Hosp. Med. Ctr., 90 AD3d 985, 935 NYS2d 639). Defendant further established, prima facie, that its employees did not deliberately make plaintiff's working conditions so intolerable that a reasonable person in her position would have felt compelled to resign (see Lambert v Macy's East, Inc., 84 AD3d 744, 922 NYS2d 210 [2d Dept 2011]; Balsamo v Savin Corp. , 61 AD3d 622, 877 NYS2d 146 [2d Dept 2009]; Nelson v HSBC Bank USA , 41 AD3d 445, 837 NYS2d 712 [2d Dept 2007]).
To defeat a properly supported motion for summary judgment in an age and/or religious discrimination case, a 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 and/or religion was the real reason for the termination (see Ferr ante v American Lung Assn., 90 NY2d 623, 629, 665 NYS2d 25; Dzikowski v J.J. Burns & Co., LLC , 98 AD3d 468, 949 NYS2d 426 [2d Dept 2012]).
In opposition to the motion, plaintiff contends that defendant's submissions do not reflect the true nature of events leading to her forced resignation. She submits her own affidavit, the affidavit of Meryl Ain, a listing of defendant's central administration, plaintiff's General Municipal Law § 50-h hearing transcript, her administrative performance review for the end of the year June 2006, a numerical comparison of total numbers of administrators to those who are Jewish, plaintiff's 2007/2008 evaluation, her administrative performance review for the end of the year June 2009, and her response to said June 2009 review.
Plaintiff s General Municipal Law § 50-h hearing transcript of December 11, 2009 reveals that in the spring of 2003 plaintiff was offered an incentive to retire from her position as reading teacher and was requested by the then Assistant Superintendent, Dr. Elizabeth Lison, and the then Director of Curriculum, Laura Seinfeld, to remain in an administrative position to assist them. The position of Administrator for Grants and Human Resources was thereafter created for plaintiff and she retracted her retirement papers and applied for said post for which she knew she would be approved. At the time that she applied and interviewed for the position of Assistant Superintendent for Personnel, plaintiff was aware of only one other applicant, the athletic coordinator of the District. Plaintiff testified that during July 2007 she functioned as the acting Assistant Superintendent for Personnel and was compensated for the additional work that she performed during that month. According to plaintiff, she had been promised the post of interim Assistant Superintendent for Personnel by Mr. Ehmann when he became superintendent and other employees expected this result but when he told her there was a problem because a former board member wanted that post, plaintiff believed that there was a deliberate plan to make Ms. Ricigliano Assistant Superintendent for Personnel.
In addition, plaintiff testified that after Ms. Ricigliano became Assistant Superintendent for Personnel, plaintiff's job responsibilities were reduced, she was no longer "very involved in staffing for the district" as she had been from July 2003 through August 2007 specifically, for recruiting, hiring and interviewing non-certified and certified employees as administrators and teachers, chairing committees for the hiring of said employees, preparing documents for the district concerning personnel matters including employee waivers, intimately involved in the district's budget development particularly with respect to staffing needs, and running the daily operations of the personnel office in the absence of the Assistant Superintendent for Personnel. Plaintiff also testified that her highest access to the data system on applicants for employment in the district, allowing access to all administrative applications and notes that others cannot see, was denied to her by Ms. Ricigliano with the reasoning that there had been problems with confidentiality and leaks in the district and that Ms. Ricigliano did not feel comfortable providing plaintiff with said access. Plaintiff added that she and Meryl Ain were no longer on the negotiations teams, representing management, for all the bargaining units beginning in spring 2008 and were no longer involved in the district's budget development.
Plaintiff argues in her affidavit dated September 5, 2012 that the interview committee was not comprised of a group of central administrators as required in the District School Improvement Team Plan but rather a majority of building administrators and only one central administrator, Ms. Bradshaw, and that the committee was comprised of individuals who favored Ms. Ricigliano. According to plaintiff, when Mr. Ehmann was a candidate for Assistant Superintendent for Personnel in June 2006, there was a legitimate combined Level I/Level II interviewing committee comprised of five central administrators in addition to building administrators and other representatives. Plaintiff argues that she did not have any of her central office colleagues, some of whom she had worked with for years, to support her advancement to the Level in interview. She asserts that the committee of central administrators requirement is to ensure that the colleagues of the new central administrator have input into the selection of someone with whom they will have close, ongoing interactions. In addition, plaintiff argues that if her resume was compared with that of Ms. Ricigliano it would reveal that plaintiff has more knowledge and experience with personnel matters including the responsibilities of the office of Assistant Superintendent for Personnel and that the committee should have included her as one of those qualified to move on to the Level III interview rather than selecting the one candidate best qualified to go to the Level III interview.
Plaintiff provides a list indicating current Smithtown Schools Administrators Association membership total 35, Jewish 3; Administrators leaving the District since July 2006 total 14, Jewish 6, and Administrative positions filled since July 2006 total 23, Jewish 0.
Dr. Meryl Ain indicates in her affidavit dated July 20, 2012 that she is a 65-year-old Jewish woman, the same age as plaintiff, who was granted tenure in the Smithtown School District as Assistant to the Superintendent for General Administration and Planning in 2003. In addition, Dr. Ain states that under four superintendents of the District she was a full participant of all aspects of decision making including, like plaintiff, serving on all interview committees for administrative positions, a member of the district's negotiation teams, and attended all budget development meetings. She also states that beginning in the 2007-2008 school year when Mr. Ehmann became Superintendent and in subsequent years she was systematically excluded from decision-making and information despite discussions v/ith him requesting inclusion and asking about her exclusion. According to Dr. Ain, Mr. Ehmann's tenure was characterized by a campaign of exclusion, bullying, lies, harassment and discrimination directed toward her and others, particularly those who did not share the Superintendent's ethnic and religious background. She asserts that he was aided and abetted by an Assistant Superintendent, Ms. Cahill, who consistently engaged in bullying, harassment, yelling and screaming, discrimination and inappropriate behavior towards employees she considered outsiders. Dr. Ain further states that throughout the 2007-2008 and 2008-2009 school years she was repeatedly questioned and forced to defend her relationship with plaintiff and that after plaintiff "was bullied into a precipitous retirement," she was concerned that she would be the next target, and she was, her position was the sole administrative position to be cut in the 2011-2012 budget despite the Superintendent's public statements that he had a very lean central administrative staff. She continues that she was embarrassed and humiliated and had no choice but to retire in June 2011.
Here, plaintiff demonstrates by her opposition that she is a member of a protected class and that she was qualified for the position of Assistant Superintendent for Personnel. However, plaintiff's submissions when examined in their totality fail to establish that she suffered adverse employment action under circumstances giving rise to an inference of discrimination and that defendant deliberately made her working conditions so intolerable that a reasonable person in her position would feel compelled to resign (see Lambert v Macy's East, Inc., 84 AD3d 744, 922 NYS2d 210; Balsamo v Savin Corp. , 61 AD3d 622, 877 NYS2d 146; Nelson v HSBC Bank USA , 41 AD3d 445, 837 NYS2d 712).
Plaintiff argues that Ms. Bradshaw knew her birth date and religion and that Ms. Ricigliano. Ms. Cahill and Mr. Ehmann had access to information on her birth date. Nevertheless, knowledge and consideration are two different matters and plaintiff has failed to raise an issue of fact that the committee actually considered plaintiff's age and religion as factors in determining her qualification for the position. In addition, defendant asserted legitimate, non-discriminatory reasons for denying plaintiff the highest computer access code, confidentiality breaches in the system (see Furfero v St. John's Univ., 94 AD3d 695, 941 NYS2d 639 [2d Dept 2012]). Moreover, the alleged mistreatment plaintiff suffered at the hands of her supervisors does not rise to the level of adverse action as defined by law (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 306, 786 NYS2d 382). Inasmuch as plaintiff does not allege that her additional or decreased assignments were accompanied by any reduction in pay or rank, they constitute mere alterations of responsibilities, and not adverse employment actions (see Mejia v Roosevelt Is. Med. Assocs., 95 AD3d 570, 944 NYS2d 521 [1st Dept 2012], Iv to appeal dismissed, ___ NY3d ___, 2013 NY Slip Op 64588 [2013]; see also Cenzon-Decarlo v Mount Sinai Hosp., 101 AD3d 924, 957 NYS2d 256; Silvis v City of New York , 95 AD3d 665, 946 NYS2d 22 [1st Dept 2012]; Messinger v Girl Scouts of the U.S.A. , 16 AD3d 314, 792 NYS2d 56 [1st Dept 2005]). Thus, plaintiff's submissions fail to raise an issue of fact as to her claims of age and religious discrimination, that the reasons given by defendant were pretextual ( see Saia v Suffolk County Community College , 64 AD3d 640, 883 NYS2d 711; Balsamo v Savin Corp., 61 AD3d 622, 877 NYS2d 146 [2d Dept 2009]; Evans v Rosa Lee Young Childhood Ctr. , 276 AD2d 523, 716 NYS2d 579).
According, the instant motion is granted and the complaint is dismissed in its entirety.
______________
Hon. Joseph Farneti
Acting Justice Supreme Court
X FINAL DISPOSITION ___ NON-FINAL DISPOSITION