Opinion
00 Civ. 8185 (AGS)
December 19, 2002
MEMORANDUM OPINION
I. Introduction
Plaintiff Lillie Ferrell, an African-American special education teacher, was terminated after more than thirty years of service. She was in her fifties at the time. She brings this action against her employer alleging discrimination based on her age and her race. Defendant Leake Watts Services, Inc. moves for summary judgment. For the reasons set forth below, defendant's motion is granted.
II. Factual Background
Plaintiff Lillie Ferrell is an African-American woman born on June 9, 1942. See Defendant's Local Rule 56.1 Statement of Material Facts as to Which There is No Genuine Issue to be Tried ("Defendant's 56.1 Statement"), at ¶¶ 1-2; Plaintiff's Reply to Defendant's Rule 56.1 Statement ("Plaintiff's 56.1 Statement"), at ¶¶ 1-2. Defendant Leake Watts Services, Inc. ("Leake Watts") is a private nonprofit organization that runs the Biondi Education Center, a school for children classified by the New York Committee on Special Education as emotionally handicapped. See Defendant's 56.1 Statement, at ¶¶ 3-4; Plaintiff's 56.1 Statement, at ¶¶ 3-4. Plaintiff concedes that no formal tenure system exists for teachers at Leake Watts, although she notes that Leake Watts does have a written disciplinary and grievance policy. See Defendant's 56.1 Statement, at ¶ 12; Plaintiff's 56.1 Statement, at ¶ 12.
Under Local Rule 56.1(c), all material facts set forth in the moving party's statement of facts will be deemed admitted unless controverted by the opposing party.
Ferrell began working as a special education teacher at Leake Watts in September 1968. See Defendant's 56.1 Statement, at ¶ 10; Plaintiff's 56.1 Statement, at ¶ 10. Plaintiff states that during her tenure at Leake Watts, she consistently received positive evaluations. Plaintiff has submitted numerous favorable evaluations from the early 1970's to the mid-1990's, including a recent one signed by Principal Edward Klopper on October 30, 1997, rating Ferrell as "very good" and recommending a salary increase. See Affirmation of Christopher D. Watkins, Esq. in Opposition to Defendant's Summary Judgment Motion ("Watkins Aff."), Exhibits 1, 2. Around the same time, Unit Supervisor Rufus Mitchell filled out an evaluation stating that Ferrell was continuing to submit "comprehensive" lesson plans as required. Watkins Aff., Exhibit ("Ex.") 9. Ferrell concedes that she received an unsatisfactory evaluation in late 1996 from Don Batista, the department head, after principal Klopper had initially marked the evaluation "fair." See Watkins Aff., Ex. 13.
In February 1998, 49 year-old Michael McCullough, who is African-American, replaced Klopper as principal at the Biondi Education Center. In early April of that year, McCullough asked the school staff to submit essays on the topic, "Why do I stay and work at Leake Watts?" See Defendant's Memorandum of Law in Support of Motion for Summary Judgment ("Motion Brief"), at 3; Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Opposition Brief"), at 6. In response, Ferrell submitted a two-page handwritten essay that contained a few spelling and grammatical errors. See Affidavit of Johan Lubbe ("Lubbe Aff."), Ex. O. McCullough also interviewed each teacher and reviewed their personnel files. At Ferrell's interview, McCullough allegedly criticized Ferrell for her handling of a behavioral incident with a student. See Opposition Brief, at 6-7.
On May 29, 1998, following her interview, McCullough informed Ferrell that she was being placed on "probation" for twenty-five days. Ferrell states that McCullough falsely contended that he had observed her in the classroom. She also states that a school supervisor, Kathy Crowley, falsely contends that she observed Ferrell's class on May 20, 1998. Two other teachers, Ava Shepard and Jerome Razor, were also placed on probation. Shepard and Razor are both African-American and were both over forty at the time of their probation. See Motion Brief, at 3, Opposition Brief, at 7. Plaintiff points out that a white teacher in his 30's, Walter Brennan, was also placed on probation but was given longer than 25 days to prove that he deserved to remain at the school. See Opposition Brief, at 8.
Between May 29, 1998, and June 24, 1998, Vice Principal Janice Wolkenberg observed some of Ferrell's classes. Ferrell states that while Wolkenberg observed between one and three classes, she signed seven observation reports ("June 1998 Reports"), indicating that she had observed seven classes. See Opposition Brief, at 9; Lubbe Aff., Exhibits U, V, W, X, Y, Z, AA, BB, CC, DD. Wolkenberg signed several observation forms that had actually been written by Crowley, who apparently had observed the classes. See Opposition Brief, at 9; Crowley Deposition ("Depo."), at 27-28. The June 1998 Reports give Ferrell unsatisfactory evaluations. Ferrell claims that although she requested feedback from her superiors during her probationary period, she did not receive it. See Opposition Brief, at 9. During her probationary period, Ferrell allegedly heard Wolkenberg tell a student that Ferrell was "too old to be in the classroom." Opposition Brief, at 10. Ferrell also states that a student told her that McCullough had said of Ferrell, "[t]he books in her room are too old and so is the teacher." Id. at 10.
On June 24, 1998, McCullough informed Ferrell that she had been terminated in light of her unsatisfactory evaluations. See Opposition Brief, at 11. The other two teachers who were put on probation had their probationary periods extended into the new school year and were not dismissed. See Motion Brief, at 4. Ferrell claims she attempted to appeal her dismissal through grievance procedures outlined in the Leake Watts Personnel Policy Handbook. See Watkins Aff., Ex. 25. In particular, Ferrell claims she did not receive a hearing before a committee which included a staff person selected by her. See Opposition Brief, at 12. Instead, she received a "perfunctory" meeting at which she was informed that the decision to terminate her stood. Id. at 12. Ferrell speculates that she was replaced by a younger white woman. See id. at 13. Since her termination, the Biondi School has expanded in terms of the number of teachers and students. See id. at 13.
Ferrell states in a footnote that despite her requests, defendant has failed to produce evidence of who replaced her as a 9th grade teacher in 1998-1999. See Opposition Brief, at 13 n. 3.
Ferrell contends that her termination was "pre-determined" before she was placed on probation and before McCullough arrived at the school. Id. at 12. She points to an e-mail message sent by Dr. Batista to then-principal Klopper and Janice Wolkenberg (as well as to Deborah Reda, school administrator). See id. at 12. The e-mail, dated July 8, 1997, instructed the recipients to emphasize Ferrell's allegedly unsatisfactory performance:
Review [Ferrell's] record [. . .] and identify the issues and goals previously given to her. Try to connect her current behavior to those issues so that a long term and consistent record of unsatisfactory performance is maintained. She was rated unsatisfactory last year and continues on an `unofficial' probation. Use the past to reinforce the present.
Watkins Aff., Ex. 7. Ferrell also points out that she was "snubbed" prior to her being placed on probation at a ceremony recognizing teachers who had worked at the school for extended periods of time. The ceremony recognized teachers who had been at Leake Watts for five years, ten years, and fifteen years, but did not recognize Ferrell's thirty years of service. See Opposition Brief, at 13; Watkins Aff., Ex. 10.
In light of the foregoing, Ferrell brings the instant action for age discrimination in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA") and the New York State Human Rights Law, N.Y. Exec. Law § 296 ("HYHRL"); and race discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5 ("Title VII"); 42 U.S.C. § 1981, and the NYHRL.
III. Legal Standard
Summary judgment is appropriate where the parties' submissions "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 burden lies with the moving party to demonstrate the absence of any genuine issue of material fact and all inferences and ambiguities are to be resolved in favor of the nonmoving party. See, e.g., Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d Cir. 1994). "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo, 22 F.3d at 1224.
The question of whether summary judgment is appropriate in the context of discrimination cases is a particularly delicate subject. The Second Circuit has acknowledged that there is seldom a "smoking gun" in a discrimination action, and that employment discrimination is often carried out through "discreet manipulations" and is often "hidden under a veil of self-declared innocence." Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). "A victim of discrimination is therefore seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence." Id. at 533. As a consequence, the Second Circuit has "emphasized that the trial court must be especially cautious in deciding whether to grant this drastic provisional remedy [i.e., summary judgment] in a discrimination case, because the employer's intent is often at issue and careful scrutiny may reveal circumstantial evidence supporting an inference of discrimination." Belfi, 191 F.3d at 135.
At the same time, a showing of merely metaphysical doubt by the nonmoving party is insufficient to overcome a motion for summary judgment. See, e.g., Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 723 (2d Cir. 1994). Similarly, "to defeat a motion for summary judgment[,] a plaintiff cannot rely on `conjecture or surmise.'" Id. at 723. Notwithstanding the Second Circuit's cautious approach to granting summary judgment in discrimination cases, the "salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Indeed, "[t]he summary judgment rule would be rendered sterile [. . .] if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Id. at 998. Recently, the Second Circuit held that in order to survive a motion for summary judgment in a discrimination case, a plaintiff "must come forward with at least some credible evidence that the actions of the [defendants] were motivated by [. . .] animus or ill-will." Grillo v. New York City Transit Auth., 291 F.3d 231, 234 (2d Cir. 2002).
IV. Legal Analysis
A. Age Discrimination Claims
The framework for establishing a prima facie case of age discrimination under the ADEA is the same as that for establishing a prima facie case of discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001). Therefore, the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies. In addition, analysis of age discrimination claims under the NYHRL is identical to analysis under ADEA. See, e.g., Wanamaker v. Columbian Rope Co., 108 F.3d 462, 467 (2d Cir. 1997). Consequently, Ferrell's claims under the NYHRL will rise or fall with the federal ADEA claim. See id. at 267 ("a district court may dismiss claims brought under the New York State Human Rights Law, on the ground that the plaintiff failed to establish a claim under the ADEA").
1. Prima facie Case
Under McDonnell Douglas, a plaintiff must establish a prima facie case by showing that: "(i) at the relevant time the plaintiff was a member of the protected class; (ii) the plaintiff was qualified for the job; (iii) the plaintiff suffered an adverse employment action; and (iv) the adverse employment action occurred under circumstances giving rise to an inference of discrimination [. . .]." Roge, 257 F.3d at 168 (citations omitted). Leake Watts concedes the first three elements of the McDonnell Douglas test. It does, however, dispute the fact that Ferrell's dismissal occurred under circumstances giving rise to an inference of age discrimination. The Court notes that plaintiff's burden at this stage is "minimal" or " de minimus." Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001).
While Zimmermann concerned gender discrimination, its analysis of what constitutes a prima facie case under Title VII is applicable to the ADEA, as noted supra.
However, Ferrell has difficulty even meeting this modest burden. She states, for example, that the replacement of plaintiff by a younger teacher satisfies the fourth requirement in establishing a prima facie case. See Opposition Brief, at 15. In fact, the case she cites, Zimmermann, states that "the mere fact that a plaintiff was replaced by someone outside the protected class will suffice for the required inference of discrimination at the prima facie stage of the Title VII analysis [. . .]." Id. at 381. Under the ADEA, individuals ages forty and over are members of the protected class. See 29 U.S.C. § 631(a); Roge, 257 F.3d at 168. In this case, however, the two teachers who assumed responsibility for Ferrell's position were Ava Shepard and Jerome Razor, two African-Americans who were over forty years old and therefore within the protected class. See 29 U.S.C. § 631; Watkins Aff., Ex. 12, at 14.
As noted, while Ferrell claims in her Opposition Brief that she was replaced by a younger, white woman, she concedes that allegation is merely supposition. See supra, note 2.
Plaintiff then argues that Leake Watts failed to follow the steps mandated by its disciplinary procedure policy and failed to afford plaintiff a grievance hearing. See Opposition Brief, at 15. Ferrell was informed that she had been placed on probation and that her recent performance had been judged to be unsatisfactory. Moreover, the Personnel Policy Handbook states that the Executive Director may convene a grievance committee when a grievance is brought to his/her attention. Watkins Aff., Ex. 25. Moreover, the Personnel Policy Handbook expressly states that the existence of a grievance policy does not alter the employment-at-will relationship in any way. Id. In this case Ferrell received prior notice of Leake Watts's dissatisfaction with her performance and an opportunity to improve it before she was terminated. Although she did not receive a hearing, she did receive a meeting with a senior Leake Watts official who confirmed her dismissal. See Opposition Brief, at 12. Ferrell cites Stern v. Trustees of Columbia Univ., 131 F.3d 305, 313 (2d Cir. 1997) for the proposition that a departure from established procedures could raise a question of the employer's good faith. However, Stern cited case law holding that a departure from established procedures could raise a question of good faith "where the departure may reasonably affect the [termination] decision." Id. at 313. In this case, Ferrell makes no showing that the alleged departure from established procedures affected the decision to dismiss her.
Next, Ferrell argues that even if no single piece of evidence establishes a prima facie case of age discrimination, the fact that defendant "overlooked" thirty years of outstanding performance as a teacher, in combination with other evidence, could give rise to an inference of discrimination. Opposition Brief, at 15. However, this fact, without more, is insufficient to set forth a prima facie case of age discrimination. Regardless of what previous school officials thought of Ferrell's performance, McCullough had the right to adjudicate her performance for himself: "[a]n employer may set whatever performance standards he wants, provided that they are not developed to discriminate on the basis of age." Schuk v. Phelps Memorial Hosp. Ctr., 89 Civ. 5919 (VLB), 1991 U.S. Dist. LEXIS 20664, at *9 (S.D.N.Y. Apr. 10, 1991). Likewise, "age discrimination is not shown when a new manager requests the resignation of an employee based upon his own assessment of inadequate performance, even if prior managers had considered the employee's work adequate." Id. at *9. Cf. Orisek v. American Inst. of Aeronautics and Astronautics, 938 F. Supp. 185, 191 (S.D.N.Y. 1996) (a new manager "is allowed to appraise an employee's work according to his or her own expectations, even if those expectations are contrary to a prior manager's expectations") (citation omitted).
Ferrell also cites the ageist comments allegedly made by McCullough and Wolkenberg. With regard to the former, they were allegedly told to Ferrell by a student who overheard the comments. They therefore constitute inadmissible hearsay. A party cannot rely on inadmissible hearsay to oppose a motion for summary judgment. See, e.g., AD/SAT v. Assoc. Press, 181 F.3d 216, 236 (2d Cir. 1999) ("it is well-settled that a party `cannot rely on inadmissible hearsay in opposing a motion for summary judgment'") (citation omitted). However, the other allegedly ageist comment made by Wolkenberg, that Ferrell was "too old to be in the classroom," is admissible, because Ferrell allegedly overheard it directly and it is not being offered for the truth of the matter asserted. However, as stated by the court in Ekwegbalu v. Central Parking Systems, 97 Civ. 9477 (MGC), 2000 U.S. Dist. LEXIS 13545, at *11 (S.D.N.Y. Sept. 22, 2000), "[s]tray remarks by non-decision-makers or by decision-makers unrelated to the decision process are rarely given great weight [. . .]." In this case, the statement was allegedly made by the school's vice principal. There is no showing that she had the final say with respect to Ferrell's employment, although she was clearly Ferrell's superior and had a significant role in her termination given her position and the fact that she signed a number of the negative evaluations cited by McCullough as a basis for the termination. However, this one allegedly ageist comment, coupled with Ferrell's allegations that Wolkenberg signed negative evaluations do not give rise to an inference of age discrimination. On this basis, Ferrell has failed to meet even the "minimal" burden of establishing a prima facie case of age discrimination.
Ferrell asks for a burden-shifting jury instruction pursuant to Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Such a request is plainly premature at this juncture and will not be considered here.
The student who overheard the comments could submit an affidavit or deposition repeating McCullough's words, because the statement would not be offered for the truth of the matter the declarant (McCullough) asserted (i.e., that Ferrell is in fact "too old"). Here, however, Ferrell quotes the student for the truth of the matter the declarant (the student) asserted (i.e., that McCullough in fact made those comments).
2. Defendant's Presentation of a Non-Discriminatory Motive
Assuming, however, that Ferrell were deemed to have, however tenuously, met the minimal burden and pled a prima facie case, the burden would shift to the defendant to present a non-discriminatory reason for the adverse employment action. See Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001). Defendant has done so, pointing to the fact that McCullough placed Ferrell on probation after her interview and after reviewing her writing sample. She was given a probation period during which to improve, and according to the negative evaluations she received, she did not. Following this allegedly unsatisfactory probation period, Ferrell was terminated. While it is true that Ferrell received many positive evaluations during her approximately thirty-year tenure at Leake Watts, McCullough undeniably had a right to have his staff conduct new evaluations under different standards, as noted supra. According to Leake Watts, Ferrell was dismissed solely because of her poor performance, and not because of her age.
3. Plaintiff's Presentation of a Discriminatory Motive
If the employer is able to articulate a permissible, non-age-based motivation for the adverse employment action, the presumption of discrimination drops out, and the burden shifts back to the plaintiff to prove that "the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Roge, 257 F.3d at 168. Under established case law applying McDonnell Douglas, "the plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the `motivating' factors." Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 78 (2d Cir. 2001) (citations omitted). Similarly, an ADEA plaintiff need not "prove that age was the only or even the principal factor in the adverse employment action, but only that age was at least one of the motivating factors in that decision." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir. 2000). In so demonstrating, plaintiffs must frequently rely on the "cumulative weight of circumstantial evidence, since an employer who discriminates against its employee is unlikely to leave a well-marked trail, such as making a notation to that effect in the employee's personnel file." Id. at 135.
In this case, however, the admissible evidence presented by Ferrell, whether examined piecemeal or cumulatively, does not support a conclusion that Leake Watts's proffered motivation was pretextual. The issue before the Court is not whether Leake Watts was justified in dismissing Ferrell. Neither side disputes that Ferrell was an at-will employee who could be fired for cause or for no reason at all. Ferrell may well have been an able teacher, and Leake Watts's decision to terminate her employment may have been misguided. Nor is the issue whether Leake Watts handled Ferrell's termination in a polite and dignified manner. Rather, the sole issue before the Court is whether Leake Watts's termination of Ferrell's employment was motivated, in whole or in part, by a discriminatory age-based animus.
Ferrell claims that she enjoyed procedural rights by virtue of Leake Watts's disciplinary and grievance policy. However, she does not dispute that her employment was at-will. Indeed, as noted supra, the Personnel Policy Handbook, included as an exhibit by Ferrell, specifically states that its provisions do not alter the at-will relationship in any way.
An examination of all the evidence reveals that she is unable to rebut Leake Watts's proffered non-discriminatory motive. Ferrell's prima facie case rests on an allegedly overheard comment made by the vice principal and some procedural irregularity regarding post-probation evaluations. While this evidence is arguably sufficient to establish a prima facie case of age discrimination, it is too thin a reed to establish a basis for a discrimination claim in light of defendant's evidence of a nondiscriminatory basis for her termination. Indeed, as an at-will employee, Ferrell could have been terminated summarily, without the opportunity to have a twenty-five day probationary period to prove her mettle. The Court has examined the rest of the evidence presented by Ferrell, including her numerous positive evaluations, the Batista e-mail message, and the circumstances of her dismissal. After careful consideration, the Court finds that no reasonable jury could find that Leake Watts was motivated, in whole or in part, by Ferrell's age.
B. Racial Discrimination Claims
Courts apply the same McDonnell Douglas burden shifting analysis to claims of racial discrimination brought under Title VII as well as under the NYHRL. See, e.g., Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-15 (2d Cir. 1996); Mauro v. Orville, 697 N.Y.S.2d 704 (N.Y. A.D.3d Dep't 1999). Consequently, plaintiff must make a prima facie showing that "(i) at the relevant time the plaintiff was a member of the protected class; (ii) the plaintiff was qualified for the job; (iii) the plaintiff suffered an adverse employment action; and (iv) the adverse employment action occurred under circumstances giving rise to an inference of discrimination [. . .]." Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). As with the age discrimination claim, defendant concedes that plaintiff has made a prima facie case with respect to the first three factors. Defendant instead argues that Ferrell has failed to establish an inference of racial discrimination.
The issue is whether Leake Watts fired Ferrell because of, or partly because of, Ferrell's race. Ferrell is simply unable to point to any evidence suggesting that her race constituted a factor in Leake Watts's decision to dismiss her. She argues that she was replaced by a white teacher, and that this alone satisfies her burden of setting forth a prima facie case. See Opposition Brief, at 20. However, earlier in her Opposition Brief, Ferrell concedes that she does not know who replaced her as a ninth grade teacher in 1998-1999. See id. at 13. Moreover, as noted supra, Leake Watts has stated that Ava Shepard and Jerome Razor assumed Ferrell's former job responsibilities. Both Shepard and Razor are African-Amencan. While both of these teachers were put on probation, neither was ultimately fired.
Moreover, it is not disputed that the termination decision was made by McCullough, who is also African-American. Ferrell states, without citing precedent, that "Second Circuit case law does not support defendant's contention that an African-American decisionmaker cannot be party to racial discrimination as a matter of law." Opposition Brief, at 21. While this may be true, the fact that McCullough is African-American, while not conclusive, tends to militate against a finding that he fired Ferrell because she is African American. Moreover, defendant notes that McCullough hired a number of African-Americans during his tenure. Ferrell's reply, that McCullough hired African-American staff members but not African-American teachers, presents a distinction whose significance is not readily apparent. It defies logic that McCullough, an African-American, would fire Ferrell because she was African-American, and then turn around and hire other African-Americans for staff positions in spite of their race, but refuse to hire African-American teachers because of their race. Ferrell's argument that a white teacher was also placed on probation only underscores the fact McCullough did not single out African-Americans. In light of the above, the Court finds that Ferrell has failed to meet the minimal burden of setting forth a prima facie case of racial discrimination.
V. Conclusion
For the reasons set forth above, defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56 is GRANTED with respect to all claims. The Clerk of the Court is directed to close the file in this action.