Opinion
03 Civ. 9300 (PKC).
July 29, 2005
MEMORANDUM AND ORDER
Plaintiff Joanne Wander brings that action under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., alleging that the defendants discriminated against her on the basis of age when they did not hire her for a teaching position. Among other things, Ms. Wander contends that on July 29, 2002, she was refused a job interview with defendant Vincent Grippo, who was then the superintendent of District 20 of the New York City Department of Education. She contends that on that same day, Mr. Grippo interviewed multiple job applicants in their 20s and 30s.
This action was filed on November 21, 2003. I accepted assignment of this case as related to another action, Carmellino v. New York City Department of Education, 03 Civ. 5942. Discovery is now closed, and the defendants have moved for summary judgment seeking the dismissal of all claims asserted by Ms. Wander. For the reasons explained below, the defendants' motion is granted in part and denied in part. Background
Beginning in 1997, Ms. Wander began to apply for positions as a special education teacher in District 20 of the New York City Department of Education. (Defendants' 56.1 ¶ 1) District 20 is one of 32 community school districts within the Department of Education, and is located in southwestern Brooklyn. (Def. 56.1 ¶ 4) During the relevant time period, District 20 contained as many as 24 primary or elementary schools and eight intermediate schools. (Def. 56.1 ¶ 5) Defendant Vincent Grippo was the superintendent of District 20 during the relevant time period. (Def. 56.1 ¶ 6)
Ms. Wander applied to District 20 for a permanent position as a special education teacher. (Def. 56.1 ¶ 10) Sometime in 1998, Ms. Wander met with Mr. Grippo, in what she describes as a "very fast interview." (Pl. 56.1 ¶ 11) Ms. Wander informed Mr. Grippo that she was seeking a permanent position as a special education teacher, and he asked for her resume, which she gave him. (Def. 56.1 ¶ 12) After meeting with Grippo, Ms. Wander was interviewed by Phyllis Shroot, coordinator of special education in District 20. (Def. 56.1 ¶¶ 13-14) According to the defendants' undisputed characterization, plaintiff's interview with Ms. Shroot was lengthy, and left Ms. Wander with the impression that Ms. Shroot had listened closely to her remarks. (Def. 56.1 ¶ 15) Ms. Shroot interviewed Ms. Wander a second time, and Ms. Wander found the interview to be similar to their prior meeting. (Def. 56.1 ¶ 16) District 20 did not, however, offer Ms. Wander a permanent position. (Def. 56.1 ¶ 17)
Ms. Wander applied for positions in different school districts that are not parties to this action, including Districts 15, 21 and 22. (Def. 56.1 ¶¶ 18-29) These districts did not offer her permanent positions. (Def. 56.1 ¶¶ 21, 25, 29) Between March 1997 and March 2003, Ms. Wander worked as a substitute or per diem teacher at over 50 schools. (Def. 56.1 ¶ 31) Her per diem work included assignments within District 20. (Def. 56.1 ¶¶ 33-37)
According to the Complaint, on or about July 29, 2002, Ms. Wander went to an office in District 20 to meet with Mr. Grippo regarding a pending application she had submitted for a full-time teaching position. (Complaint ¶ 35) Ms. Wander contends that "[t]he majority of individuals who were waiting to see Grippo about the full time teaching positions were young women who appeared to be in their twenties. Each and every one of those young teachers went into Grippo's office for an interview." (Complaint ¶ 36) The Complaint alleges that when Grippo finished his interviews with the other, younger job applicants, he saw plaintiff waiting to be interviewed, "frowned, said nothing and closed his door." (Complaint ¶ 38) "Grippo's secretary then told plaintiff that he was too busy to see the plaintiff." (Complaint ¶ 39)
Since July 2002, Ms. Wander has not sought permanent employment. (Def. 56.1 ¶ 93) On April 30, 2003, Ms. Wander filed a charge of age discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Def. 56.1 ¶ 94) The EEOC dismissed her charge in a letter dated August 21, 2003. (Complaint Ex. A)
Summary Judgment Standard
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Rule 56(c), Fed.R.Civ.P. It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. 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 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in his or her favor as a matter of law. Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Rule 56(e), Fed.R.Civ.P. In raising a triable issue of fact, the nonmovant carries only "a limited burden of production," but nevertheless "must `demonstrate more than some metaphysical doubt as to the material facts,' and come forward with `specific facts showing that there is a genuine issue for trial.'" Powell v. Nat'l Bd. of Medical Examiners, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Aslandis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)).
An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248. The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quotations and citations omitted); accord Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. See Fed.R.Civ.P. 56(c). In the absence of any disputed material fact, summary judgment is appropriate.
Plaintiff's Claims are Time-Barred For All Incidents Pre-dating July 5, 2002
Prior to commencing suit under the ADEA, a plaintiff must file a charge alleging unlawful discrimination with the EEOC. 29 U.S.C. §§ 626(d), 633(b). Because New York has adopted a law prohibiting age discrimination, the charge must be filed with the EEOC "within 300 days after the alleged unlawful practice occurred. . . ." 29 U.S.C. § 626(d)(2). See also Ford v. Bernard Fineson Development Center, 81 F.3d 304, 307 (2d Cir. 1996) (describing statutorily required timing of discrimination charges and applicability under New York law); Carmellino v. District 20 of New York City Dep't of Educ., 2004 WL 736988, at *11 (S.D.N.Y. Apr. 6, 2004) (same). As Judge Koeltl observed in the Title VII context, the EEOC filing requirement "creates a statute of limitations that begins to run when each discrete and actionable discriminatory or retaliatory act occurs, including each unlawful termination, denial of transfer, failure or refusal to hire or other related acts that discriminate against an individual with respect to her compensation, terms, conditions or privileges of employment. . . ." Coffey v. Cushman Wakefield, Inc., 2002 WL 1610913, at *2 (S.D.N.Y. July 22, 2002).
There parties do not dispute that the plaintiff filed her EEOC charge on April 30, 2003. The 300-day window for filing a timely grievance extends back to July 5, 2002. Defendants contend that there are no triable issues of fact that preclude this Court from granting summary judgment dismissing all of Ms. Wander's claims arising prior to July 5, 2002. In her opposition papers, the plaintiff concedes "that any incidents occurring prior to July 5, 2002 are time-barred as to liability by defendants in this case." (Opposition Mem. at 1) Plaintiff contends that events predating July 5, 2002 are probative of an incident later that July when Mr. Grippo declined to interview Ms. Wander.
The date upon which Ms. Wander filed her EEOC charge is unclear from the document proffered by the defendants. (See Cote Dec. Ex. C) The parties do not dispute that April 30, 2003 is the date that Ms. Weisman filed her EEOC charge.
In light of the foregoing, to the extent plaintiff seeks relief based on incidents occurring prior to July 5, 2002, the defendants' motion for summary judgment is granted. I need not decide at this juncture the extent to which evidence of events predating July 5, 2002 is admissible in the trial of this action.
The Incident of July 29, 2002
Ms. Wander alleges that on July 29, 2002, Mr. Grippo refused to interview her after conducting interviews with applicants in their 20s and 30s. The Complaint alleges that when Grippo finished his interviews with the other, younger job applicants, he saw plaintiff waiting to be interviewed, "frowned, said nothing and closed his door." (Complaint ¶ 38) "Grippo's secretary then told plaintiff that he was too busy to see the plaintiff." (Complaint ¶ 39)
Where there is no direct evidence of discrimination, the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), determines whether a plaintiff's ADEA claim survives summary judgment. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000); Jetter v. Knothe Corp., 324 F.3d 73, 75 (2d Cir. 2003). First, the plaintiff must establish a prima facie case of age discrimination. Id. at 75. If a prima facie case is established, then the burden shifts to the employer to set forth a legitimate, nondiscriminatory reason for the employment action. Id. Lastly, if the defendant has established a legitimate, nondiscriminatory reason for its action, the burden shifts back to the plaintiff to show that this stated rationale is a mere pretext for discrimination. Id. at 75-76.
To establish a prima facie case of age discrimination, a plaintiff must show that he or she is a member of a protected class, suffered an adverse employment action, and that surrounding circumstances give rise to an inference of discrimination. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.), cert. denied, 534 U.S. 993 (2001). In a failure-to-hire case, the plaintiff also must offer evidence indicating that he or she "applied and was qualified for a job for which the employer was seeking applicants." McDonnell Douglas, 411 U.S. at 802. "The burden of establishing a prima facie case is not onerous, and has been frequently described as minimal." Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997) (per curiam).
In this case, there is no dispute that the plaintiff, who was born on March 29, 1943, was older than 40 years of age on July 29, 2002, and thus a member of a protected class under the ADEA. Defendants contend that summary judgment should be granted in their favor because Ms. Wander fails to satisfy the remaining three prongs of McDonnell Douglas. Defendants argue that Ms. Wander did not actually apply for a job in District 20 when she appeared at Grippo's office on July 29, 2002, thus precluding her from establishing that the denial of an interview was an adverse employment action.
As Vermont Teddy Bear makes clear, the evidence on each material element must be sufficient to entitle the movant to relief in his or her favor as a matter of law. 373 F.3d at 244. For the limited purposes of this motion, the defendants have accepted as true Ms. Wander's contention that she scheduled an appointment with Mr. Grippo on July 29, 2002, and that he elected not to interview or meet with her. It would not be reasonable to expect the defendants to set forth a record establishing the negative — to wit, facts showing that Ms. Wander had not applied for a job opening as of July 29, 2002. Defendants have nevertheless failed to set forth any facts by which the Court could ascertain District 20's hiring procedures, nor have they explained why defendant Grippo initially agreed to interview Ms. Wander on that day. Defendants' motion is premised on an unsupported assertion that Ms. Wander's appearance at District 20 offices on July 29 was unrelated to District 20's hiring procedures. Defendants' Rule 56.1 Statement does not incorporate any facts pertaining to the July 29 meeting.
Based on the record before me, a reasonable jury could conclude that the plaintiff's appointment with defendant Grippo on July 29 was for the purpose of seeking employment, and that Grippo understood it as such. The record set forth by the defendants is inadequate to establish that they are entitled to judgment as a matter of law dismissing the plaintiff's claim. Because there are triable issues of fact pertinent to the purpose of the meeting scheduled for July 29, 2002, this portion of their motion is denied.
Lastly, the defendants' motion is denied insofar as it contends that there are no surrounding circumstances that give rise to an inference of discrimination. Defendants' memorandum of law forthrightly acknowledges that there are multiple explanations for Mr. Grippo's conduct on July 29, stating that "there is nothing overtly discriminatory about Mr. Grippo's alleged actions on July 29; they are equally susceptible to a completely innocuous interpretation." (Def. Mem. at 12) Defendants also posit that Mr. Grippo's refusal to meet with Ms. Wander could be attributed to Mr. Grippo's "explanation that he was running late, had an important meeting to go to, and didn't have time to meet with anyone else," all of which are "equally consistent" with attributing his conduct to Ms. Wander being "an older woman." (Def. Mem. at 12) It is not the function of a court considering a summary judgment motion to decide which competing narrative is most plausible. Rule 56(c).
Defendants' additional arguments as to whether circumstances support an inference of discrimination are equally unavailing. In support of their motion, defendants contend that Mr. Grippo's secretary offered Ms. Wander a future appointment; that Mr. Grippo requested Ms. Wander's resume in 1998; that District 20 hired multiple special education teachers who were age 40 or older; and that Ms. Wander unsuccessfully applied for teaching positions in other New York City school districts. (Def. Mem. at 13-14) While such contentions, if credited, may influence a jury's considerations, they do not support a conclusion that there are no triable issues of fact arising out of the July 29, 2002 incident.
Conclusion
The defendants' motion for summary judgment is GRANTED as to all claims arising from events prior to July 5, 2002. The defendants' motion is DENIED as to the allegedly discriminatory events that occurred on July 29, 2002.
SO ORDERED.