Opinion
00 CIV. 4881 (DLC).
November 29, 2001
Stephen Bergstein, Law Offices of Michael H. Sussman, Goshen, NY, Attorney for the Plaintiff Lawrence W. Thomas.
Donoghue, Thomas, Auslander Drohan, Scarsdale, NY., Attorney for the Defendants.
OPINION and ORDER
On June 30, 2000, plaintiff Wall filed suit under 42 U.S.C. § 1983 and 1981 challenging the Yonkers Board of Education's decision to deny her a tenured teaching position. The defendants have moved for summary judgment on the ground that Wall's complaint is time barred. For the reasons that follow, defendants' motion for summary judgment is denied.
This case, having originally been assigned to the Honorable Barrington D. Parker, Jr., was reassigned to this Court on November 1, 2001.
BACKGROUND
Wall was employed for a three-year probationary term by the Yonkers Board of Education ("Board") and became eligible for tenure at the end of the 1995-1996 school year. In June 1996, Superintendent of Schools Reginald Marra ("Superintendent" or "Marra") notified Wall that he did not intend to recommend her for a tenured position. On June 27, 1996, Wall and Marra signed an agreement extending Wall's probationary employment for a fourth year.
Although no mention is made of defendant Hardeman in the papers supporting or opposing the defendants' motion for summary judgment, the plaintiff's complaint notes that Hardeman, the Deputy Superintendent of Schools, played a central role in the tenure review process and that Marra relied heavily on her evaluations in making decisions about candidates.
In a letter of May 8, 1997, Marra informed Wall that he did not intend to recommend her for a tenured position at the Board's next meeting. The letter provided:
This letter is to notify you . . . that I will not recommend to the Board of Education that you be granted tenure. The Board of Education will be notified and will review my recommendation that you not be granted tenure at its regular meeting on June 18, 1997.
Your appointment and employment as a probationary teacher will terminate effective August 1, 1997.
At its meeting on June 18, 1997, the Board reviewed Marra's recommendations regarding candidates for tenured positions and approved his recommendation not to grant Wall tenure. On or about July 3, 1997, Wall received a letter informing her of the Board's decision. The letter, dated July 1, 1997, and postmarked July 3, 1997, stated that it was "to advise you that based on the action taken by the Board of Education at their June 18, 1997 public meeting, your services to the district will terminate on August 1, 1997."
On June 30, 2000, Wall filed suit under Section 1983 challenging the defendants' decision to deny her tenure. Wall, who is white, maintains that the defendants intentionally discriminated against her on the basis of her race. The defendants contend that Wall's suit is time barred since it was filed more than three years after Wall received Marra's May 8, 1997 letter. Wall asserts her suit is timely since it was filed less than three years after she received the July 1, 1997 letter advising her of the Board's decision.
DISCUSSION
Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law governing the case will identify those issues that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the nonmoving party. See Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Fed.R.Civ.P. 56(e); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the facts in dispute are material based on the substantive law at issue.
The statute of limitations governing claims for employment discrimination in New York under Section 1983 is three years. Owens v. Okure, 488 U.S. 235, 251 (1989); Connolly v. McCall, 254 F.3d 36, 40-41 (2d Cir. 2001). It is well established that "a claim of employment discrimination accrues for statute of limitations purposes on the date the employee learns of the employer's discriminatory conduct." Flaherty v. Metromail Corp., 235 F.3d 133, 137 (2d Cir. 2000). The limitations period thus commenced when Wall received either the letter that notified her of the Superintendent's decision or the letter that notified her of the Board's decision.
In determining when the limitations period in an employment discrimination case accrues, the "`proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.'" Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (citing Abramson v. Univ. of Haw., 594 F.2d 202, 209 (1979)) (emphasis in original); Flaherty, 235 F.3d at 137. To constitute a discriminatory act for statute of limitations purposes, the manner in which a particular employment decision was reached must "differ discriminatorily" from the manner in which decisions about similarly situated individuals were made. Ricks, 449 U.S. at 258. If, as the defendants maintain, the Board could not have reached a decision other than to approve Marra's recommendation, its decision could not have differed — discriminatorily or otherwise — from its decisions about other candidates who received negative recommendations. The Superintendent's decision would then be the last discriminatory act and the Board's decision simply the "inevitable consequence" of the adverse tenure decision that had previously been made. Flaherty, 235 F.3d at 137.
Under New York law, a school board is required to review a superintendent's decision not to recommend a candidate for a tenured position. N.Y. Educ. Law § 3031(a) (Consol. Supp. 2001).
Although a board may not "override its Superintendent's negative recommendation," Anderson v. Bd. of Educ., 362 N.Y.S.2d 536, 540 (N.Y.App.Div. 1974), aff'd, 38 N.Y.2d 897 (1976); Yanoff v. Comm'r of Educ., 410 N.Y.S.2d 713, 715 (N.Y.App.Div. 1978), it retains the power to conduct "a limited `review' of the Superintendent's refusal to recommend for tenure . . . [and can] remand individual cases for reconsideration," Anderson, 362 N.Y.S.2d at 540. Thus, as defendants concede, while the Board could not have granted Wall tenure in the face of the Superintendent's negative recommendation, it could have remanded her case to the Superintendent for reconsideration. Id. As a result, the Board's decision in Wall's case could have differed from its decisions about similarly situated candidates. See Sikora v. Bd. of Educ., 380 N.Y.S.2d 382, 386 (N.Y.App.Div. 197 6).
Under New York law, the Superintendent's recommendation is not final until the Board of Education acts on the recommendation. Fusco v. Bd. of Educ., 586 N.Y.S.2d 1012, 1013 (N.Y.App.Div. 1992); see also Cent. Sch. Dist. No. 3 v. Cent. Sch. Dist. No. 3 Faculty Ass'n, 348 N.Y.S.2d 295, 296 (N.Y.Sup.Ct. 1973).
Whether or not the Board's decision was discriminatory is a material issue of fact. The defendants have not presented facts showing that the Board's decision was not discriminatory and therefore have not carried their burden of demonstrating the absence of a material question of fact on this issue.
Even were the Superintendent's decision the last discriminatory act, material issues of fact remain as to whether the letter of May 8, 1997, was effective notice. For "notice to be effective, it must be made apparent to the employee that the notice states the `official position' of the employer." Smith v. United Parcel Serv. of Am., Inc., 65 F.3d 266, 268 (2d Cir. 1995) (quoting Economu v. Borg-Warner Corp., 829 F.2d 311, 315 (2d Cir. 1987)); see also Flaherty, 235 F.3d at 137 (notice must be "definite"). Notice may effectively convey the "official position" of the employer and trigger the limitations period despite the pendency of collateral review, Ricks, 449 U.S. at 261, or administrative action,Miller v. Int'l Tel. Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985). Effective notice, however, must be such that the employee could reasonably be expected to act to protect her rights. See Smith, 65 F.3d at 268; Schockley v. Vt. State Colls., 793 F.2d 478, 482 (2d Cir. 1986). Defendants have not shown as a matter of law that the Superintendent's letter of May 8, 1997, constituted effective notice. The letter advised Wall, inter alia, that the Board of Education would be reviewing the Superintendent's "recommendation." The question of whether or not the Superintendent's letter was effective notice of the "official position" of the Yonkers school system is a material issue of fact precluding a grant of summary judgment.
Given the result reached here it is unnecessary also to decide whether the defendants' motion should be denied for their failure to comply with Local Rule 56.1.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is denied.SO ORDERED.