Flaherty v. Massapequa Pub. Sch.

; Queensborough Cmty. Coll. of City Univ. of N.Y. v. State Human Rights, 49 A.D.2d 766, 372 N.Y.S.2d 722, 723 (2d Dep't 1975). The School Board decided against renewing Flaherty's contract in the fall of 2006, and communicated its decision to Flaherty in December of that year. The board then voted to suspend Flaherty and to assert disciplinary charges against her in June 2007, and the parties settled those charges in August 2008. Flaherty does not allege any discriminatory act after the settlement in August 2008. Therefore, any claim that Flaherty had under the New York Human Rights Law accrued prior to her contract's expiration. See Pinder v. City of New York, 49 A.D.3d 280, 853 N.Y.S.2d 312 (2008) (explaining that the possibility that an adverse employment decision may be reversed is insufficient to toll the statute of limitations); see Jamieson v. Poughkeepsie City School Dist., 195 F.Supp.2d 457, 467 (S.D.N.Y.2002) (explaining that a plaintiff's claim accrues on the date that an adverse decision is made even though a lame duck board could possibly overturn that decision).

Nevertheless, the plaintiff asserts that, because the damages associated with her state law causes of action were uncertain until the time that her employment terminated, her causes of action did not accrue until September 11, 2008. However, the Court finds the cases on which the plaintiff relies for this proposition to be inapposite to the present facts. Cf. Scherman v. Bd. of Ed. of Sch. Dist. No. 1, Town of Hempstead, 44 A.D.2d 831, 832, 355 N.Y.S.2d 162, 163 (2d Dep't 1974) (holding that a plaintiff's cause of action did not accrue on the date that he was first dismissed because the Commissioner of Education had issued an order reinstating the plaintiff soon after); cf. Hoger v. Thomann, 189 A.D.2d 1048, 1049–50, 592 N.Y.S.2d 887, 888–89 (3d Dep't 1993) (holding that a wrongful termination claim accrued on the date that the plaintiff was terminated, not on the date that her supervisor evaluated her performance). Moreover, the disciplinary charges and suspension imposed on the plaintiff, as well as the parties' subsequent settlement agreement, left no doubt that the plaintiff would not be working for the defendants after September 11, 2008. Thus, there was no material uncertainty as to damages after the August 2008 settlement agreement.

Therefore, because the plaintiff did not move to serve a late notice of claim within a year of the accrual of her state law causes of action, the Court denies the plaintiff's motion to serve a late notice of claim. Accordingly, as the plaintiff has not satisfied the notice of claim requirement of New York Education Law § 3813, the Court dismisses all of the plaintiff's state law causes of action.

B. As to the Defendants' Motion for Summary Judgment 1. Standard on a Motion for Summary Judgment

It is well-settled that summary judgment under Fed.R.Civ.P. 56(c) is proper only “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 judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is “material” within the meaning of Fed.R.Civ.P. 56 when its resolution “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is “genuine” when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In determining whether an issue is genuine, “[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir.1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam), and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989)).

Once the moving party has met its burden, “the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). However, the nonmoving party cannot survive summary judgment by casting mere “metaphysical doubt” upon the evidence produced by the moving party. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Summary judgment is appropriate when the moving party can show that “little or no evidence may be found in support of the nonmoving party's case.” Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223–24 (2d Cir.1994) (citations omitted).

2. As to the Plaintiff's Section 1983 Equal Protection Cause of Action

The plaintiff asserts a cause of action pursuant to 42 U.S.C. § 1983 and the Equal Protection Clause for employment discrimination on the basis of her perceived sexual orientation. The defendants move for summary judgment on this claim and assert, among other things, that there is no triable issue of fact as to whether the defendants were motivated by discriminatory animus.

As a preliminary matter, the defendants assert that the plaintiff is barred from asserting an Equal Protection claim because she is not a member of a protected class. The gist of the defendants' argument is that people “perceived as gay” are not in a protected class for purposes of the Equal Protection Clause, and that the plaintiff's only remaining avenue for asserting an equal protection claim is to proceed under a “class of one” theory. However, the defendants assert that the Supreme Court's recent decision in Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 128 S.Ct. 2146, 2156, 170 L.Ed.2d 975 (2008), bars “class of one” equal protection claims in the public employment context.

The law in this area remains somewhat unsettled. However, in the Court's view, it is likely that a person perceived as homosexual is in a protected class for equal protection purposes. See, e.g., Vega v. Artus, 610 F.Supp.2d 185, 209–10 (N.D.N.Y.2009) (treating perceived sexual orientation as a protected class); Levarge v. Preston Bd. of Education, 552 F.Supp.2d 248, 253 (D.Conn.2008) (same); but see also, Emblen v. Port Authority of New York/New Jersey, No. 00–cv–8877, 2002 WL 498634, *7 (S.D.N.Y.2002) (treating an equal protection claim for discrimination based on perceived sexual orientation as a “class of one” claim). Nevertheless, the Court need not definitively resolve this issue. Even assuming that the plaintiff is a member of a protected class, the Court ultimately finds that she cannot meet her burden of showing that the defendants' conduct was discriminatorily motivated. Therefore, for the purposes of this motion, the Court assumes that the plaintiff is a member of a protected class for equal protection purposes.

In the Second Circuit, employment discrimination claims brought under the Equal Protection Clause are analyzed using the familiar three-step McDonnell Douglas burden shifting test developed for Title VII employment discrimination claims. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). In the first step of this burden shifting test, the plaintiff must establish a prima facie case of discrimination by showing that “(1) she was within the protected class; (2) she was qualified for the position; (3) she was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination.” Leibowitz v. Cornell University, 584 F.3d 487, 498 (2d Cir.2009). An inference of discrimination may be drawn either from (1) direct evidence of discriminatory intent, or (2) a showing by the plaintiff that “[she] was subjected to disparate treatment ... [compared to persons] similarly situated in all material respects to ... [herself].” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000) (internal quotations and citations omitted). Generally, the plaintiff's burden in establishing a prima facie case of discrimination is “minimal.” Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir.2000).

Then, if the plaintiff establishes all the elements of the prima facie case, the burden shifts to the defendants to “articulate some legitimate, nondiscriminatory reason for the adverse act.” Leibowitz, 584 F.3d at 498 (internal quotations and citations omitted). If the defendant succeeds in doing so, the plaintiff then has the burden to “demonstrate by competent evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Id.

a. Step One: The Prima Facie Case

The Court has already assumed that the plaintiff has established the first prong of the prima facie case—that she is a member of a protected class—and neither party disputes that the plaintiff was qualified to serve as school superintendent, thereby satisfying the second prong of the prima facie case. Similarly, while the plaintiff was not contractually entitled to an extension of her employment contract, the defendants' decision not to extend it was an adverse employment action, satisfying the third prong of the prima facie case. See Leibowitz, 584 F.3d at 501. There is some dispute as to whether Flaherty's suspension without pay was also an adverse employment action, but as it is not determinative to the outcome here, the Court assumes that it was.

As for the fourth prong of the prima facie case, the plaintiff relies primarily on statements from the School Board members to show discriminatory intent. However, before addressing these statements in detail, the Court notes that the plaintiff also suggests that the defendants demonstrated discriminatory intent when “another District employee” named Ellen Semmell “who is married and who the District was going to terminate, was granted tenure and allowed to continue working for one year before she was required to tender her resignation.” (Pl.'s Resp. at 20.)

In the Court's view, the plaintiff's reliance on Ellen Semmell to show discriminatory intent is misplaced. To show discriminatory intent through a comparator, the person treated differently must be “similarly situated” to the plaintiff in “all material respects.” Norville v. Staten Island University Hosp., 196 F.3d 89, 96 (2d Cir.1999). This includes a showing that the comparator was “subject to the same standards governing performance evaluation and discipline, and [ ] engaged in conduct similar to the plaintiff's ....” Id. Here, not only does the plaintiff fail to demonstrate how Semmell is similarly situated to her in all material respects, but she fails even to state what position Semmell held, when she was terminated, or the reason for her dismissal. Thus, the Court does not view Semmell as a relevant comparator.

As for direct evidence of discrimination, the plaintiff relies on six alleged statements:

(1) Arlene Martin's August 2005 question about whether the plaintiff was married;

(2) Christine Perrino's February 2006 comments showing interest in the Gay–Straight Alliance and noting that being gay was a “difficult lifestyle”;

(3) Martin's February 2007 remark to the plaintiff, “You hired gays?”;

(4) School District Attorney Randi Glasser's March 2007 comments concerning her son asking questions about being gay;

(5) Perrino's April 2007 comment indicating support for the Gay–Straight Alliance and suggesting that the plaintiff was a good gay role model; and

(6) an uncited and undated comment recounted in the plaintiff's memorandum of law from Arlene Martin to one Gary Slavin that “[Flaherty] is not the person we thought she was and I had to get rid of her.” (Pl.'s Resp. at 19.)

In the Court's view, the only statement among these that supports an inference of discriminatory animus against perceived-homosexuals is Martin's February 2007 comment to the plaintiff, “You hired gays?” To be sure, Flaherty's testimony concerning this statement is uncorroborated by the five other individuals in the room at the time, but the plaintiff's testimony nevertheless raises an issue of fact as to whether this statement was made.

As for Martin's alleged statement that Flaherty was “not the person we thought she was,” not only has the plaintiff failed to point the Court to admissible evidence supporting this statement, but the Court also finds that this statement does not show animus towards perceived homosexuals. Similarly, the four remaining statements on which the plaintiff relies also fail to show any animus towards persons perceived as gay. At most, these comments demonstrate curiosity about the plaintiff's sexual orientation, and in at least one case, the comments are on their face supportive of homosexuals.

Nevertheless, as stated above, the burden for proving a prima facie case of discrimination is “minimal.” Schnabel, 232 F.3d at 87. Therefore, the Court finds that the evidence of Martin's alleged statement “You hired gays?” is sufficient to satisfy the plaintiff's burden of showing discriminatory intent.

b. Step Two: The Defendants' Non–Discriminatory Reason

The plaintiff having satisfied her burden of establishing a prima facie case of discrimination, the defendants must state a non-discriminatory reason for the plaintiff's non-renewal and suspension. Here, the defendants state that they acted as they did based on Flaherty's poor job performance. Having proffered this reason, the defendants have satisfied their burden.

c. Step Three: The Plaintiff's Showing of Pretext and Actual Discrimination

Once the defendants offer a non-discriminatory reason for the relevant adverse employment actions, the plaintiff once again takes on the burden of showing by a preponderance of the evidence that the defendants' reason is a pretext for actual discrimination. In the context of a motion for summary judgment, the Court must determine at this final step whether, taking the facts in the best light for the plaintiff, the plaintiff can meet its burden of proving that the defendants' explanation was a pretext for actual discriminatory animus.

The Court finds that the plaintiff cannot meet this burden. First, the defendants have offered overwhelming and uncontroverted evidence showing that they were unsatisfied with Flaherty's performance—and that evaluation of a superintendent is a critical obligation of the School Board members. The School Board's first annual review of Flaherty reflects that, after nine months of employment, not a single board member expressed satisfaction with Flaherty's “leadership”, “judgment, perception, [or] vision,” (Stern Aff., Ex. J at 227). At fifteen months, the School Board's records show similar concern, stating, among other things, that “[t]here have been lapses in professional approach [by Flaherty].” (Stern Aff., Ex. L at 236.) The plaintiff's June 2007 performance review is abysmal, shows a worsening view of her leadership and judgment, and includes comments such as “[i]nterpersonal skills are lacking,” and “[d]on't sense any team building having taken place.” (Stern Aff., Ex. N at 240.) The charges levied against Flaherty shortly thereafter express the same concerns.

Flaherty further admits to hanging up on a School Board member, whom she then referred to as, “that fucking Perrino.” (Pl.'s 56.1 Stmt., ¶¶ 221, 223; Flaherty Dep. at 250–53.) Flaherty also does not deny that she called three women on the School Board “a bunch of high school girls” and that she told a parent at a school board meeting to slow down and not speak like a “used car salesman.” (Pl.'s 56.1 Stmt., ¶¶ 217, 219.) In each case, Flaherty asserts that her statements were taken out of context, and that in some cases, they were misunderstood jokes. However, even taking the evidence in the best light for the plaintiff, the plaintiff's admissions demonstrate that the School Board's concerns were not entirely without basis.

By contrast, the single piece of evidence that the plaintiff has offered to show that the defendants discriminated against her is her recounting of Martin's statement, “You hired gays?” However, while Flaherty testified that Martin's statement was “contentious [and] derisive” (Flaherty Tr. at 196:2–3), she offers no evidence of any follow up to this statement or agreement by other board members. The Court therefore does not find that this comment expressed the views of the other members of the School Board. This is particularly relevant because the School Board voted unanimously not to rehire and later to suspend Flaherty.

Further, Martin's statement was also not made until two months after Flaherty was told that her contract would not be renewed, and eight months after the School Board first recorded in writing that they were concerned about Flaherty's leadership and judgment. In fact, Flaherty asserts that the School Board was still “attempt[ing] to determine [her] sexual orientation,” (Flaherty Aff. at 191:18–20), two months after Martin allegedly made this comment, and four months after Flaherty had been told that her employment would not be extended.

In the Court's view, this single alleged statement is insufficient to create a triable issue of fact. See Danzer v. Norden Systems, Inc., 151 F.3d 50, 56 (2d Cir.1998) (“[S]tray remarks alone do not support a discrimination suit.” (internal quotation marks omitted)). While stray remarks may take on “more ominous” meaning when placed in context, id., the Court finds that the plaintiff has failed to offer evidence that demonstrates a context rendering this remark more serious. Rather, the undisputed evidence in this case shows that the School Board had long before expressed serious disappointment with the plaintiff's performance, and this had nothing to do with her perceived sexual orientation.

The plaintiff has pointed to a number of her achievements as superintendent to show that the School Board's criticism of her was unfounded, and there are unresolved factual disputes concerning the quality of Flaherty's work as a school superintendent. However, it is not the Court's role to determine whether an employer acted wisely in taking an adverse employment action. Rather, the law prohibits making employment decisions for discriminatory reasons. See, e.g., Norton v. Sam's Club, 145 F.3d 114, 120 (2d Cir.1998) (employment discrimination law “does not make employers liable for doing stupid or even wicked things; it makes them liable for discriminating” (emphasis in original)). Here, there are no triable issues of fact concerning the defendants' view of Flaherty's performance: the defendants were plainly unimpressed with Flaherty on the merits. The single statement suggesting, perhaps, that one board member harbored personal animus against homosexuals is insufficient to show that this discontent was a feigned pretext a for discriminatory animus against the plaintiff.

Finding that the plaintiff cannot meet her burden of showing actual discrimination, the Court dismisses the plaintiff's Section 1983 Equal Protection employment discrimination claim. The Court further notes that, as the plaintiff's New York Human Rights Law cause of action and the plaintiff's Section 1983 cause of action were the only claims asserted against Perrino and Martin, both Perrino and Martin should now be terminated as defendants in this case. Similarly, as the plaintiff has asserted no causes of action against named defendant Marianne Fisher, she is also terminated as a defendant.

3. As to the Plaintiff's Equal Pay Act Cause of Action

The plaintiff separately asserts against the District Defendants a cause of action pursuant to the Equal Pay Act, 29 U.S.C. § 206(d)(1) (“EPA”). The plaintiff bases her claim on the fact that her successor, Charles Sulc, was paid $240,000 in annual salary when he started work as superintendent, while she was paid a salary of only $208,000 when her contract expired. The District Defendants assert that Sulc's higher pay was the non-discriminatory result of cost of living increases and Sulc's long tenure in the Massapequa Public Schools.

The EPA proscribes paying lower wages to an employee of one sex when an employee of the opposite sex does materially the same work for greater pay. Section 206(d)(1). To evaluate a claim under the EPA, the Second Circuit has established a burden shifting test somewhat akin to the McDonnell Douglas test. In the first step of this test, the plaintiff must establish a prima facie violation of the EPA by showing that “i) the employer pays different wages to employees of the opposite sex; ii) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and iii) the jobs are performed under similar working conditions.” Ryduchowski v. Port Authority of New York and New Jersey, 203 F.3d 135, 142 (2d Cir.2000) (quoting Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir.1999)) (internal quotations omitted). A plaintiff need not demonstrate an employer's intent to discriminate to establish a prima facie case under the EPA. Id.

Upon the establishment of a prima facie case of pay discrimination, the defendants undertakes a burden of persuasion (as opposed to the mere burden of production in the Title VII context) to show, by a preponderance of the evidence, that the pay differential is attributable to “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” Section 206(d)(1); Ryduchowski, 203 F.3d at 142. Generally, this burden “is a heavy one, because the statutory exemptions are narrowly construed.” Id. (citing Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 843 (6th Cir.1997) and EEOC v. Aetna Ins. Co., 616 F.2d 719, 724 (4th Cir.1980)) (internal quotations omitted).

Should a defendant succeed in carrying this burden, a plaintiff may then “counter the employer's affirmative defense by producing evidence that the reasons the defendant seeks to advance are actually a pretext for sex discrimination.” Belfi, 191 F.3d at 136; Ryduchowski, 203 F.3d at 142.

Here, the Court is satisfied that the plaintiff has established a prima facie case of pay discrimination under the EPA. Both Flaherty and Sulc performed the same essential duties under similar conditions while each was the school superintendent. However, Sulc, a man, was paid more than Flaherty, a woman. The only wrinkle in establishing a prima facie case here is that Sulc began work in the fall of 2008, while Flaherty's final pay reflected the pay rate for her job in 2006. Because of the effect of cost of living increases in salary, the Court cannot directly compare Flaherty's 2006 salary with Sulc's 2008 salary.

Nevertheless, for comparison purposes, the Court can calculate what Flaherty's salary would likely have been in 2008. First, Flaherty received a 4% salary increase at the end of her first year of employment, so the Court can reasonably assume that she would have received the same increase at the end of her second year of employment had she not been suspended. Similarly, the Court assumes that Flaherty would have received another 4% raise at the end of the third year of work had her contract been renewed. Thus, the Court calculates the plaintiff's hypothetical 2008 salary to be $224,972.80. This is still approximately $15,000 less than Sulc's actual 2008 salary, so that the plaintiff has established a prima facie case under the EPA.

In response, the District Defendants assert that Sulc's increased pay reflected (1) his forty years of service with the Massapequa Public Schools and the stability he brought to the position, (2) the fact that he served as acting superintendent during the 2007–2008 school year without additional compensation, and (3) the fact that, given the length of time he had spent in the school district, Sulc was already earning $219,990.97 in total compensation as deputy superintendent. Flaherty does not dispute that Sulc served in the Massapequa Public Schools for decades, nor does she dispute that, from July 2007 to July 2008, Sulc served as acting superintendent without additional compensation.

Based on these facts, the District Defendants essentially argue that the pay differential between Flaherty and Sulc was “a differential based on any other factor other than sex.” Section 206(d)(1). The Second Circuit has held that a defendant seeking to invoke the “factor-other-than-sex” defense must show that a “bona fide business-related reason exists for using the gender-neutral factor that results in a wage differential.” Aldrich v. Randolph Cent. School Dist., 963 F.2d 520, 526 (2d Cir.1992). The District Defendants face a particularly high bar in seeking summary judgment on this affirmative defense, as they must show that every reasonable jury would agree that Sulc's higher pay was based on a legitimate business reason.

Having reviewed the relevant evidence, the Court finds that the District Defendants have not met that burden. While there is considerable evidence that Sulc's pay was based entirely on non-gender, business considerations, there is at least some valid evidence that calls this into question. For example, while Flaherty held a Ph.D., Sulc did not. Also, the District Defendants claim that Sulc's 2008–2009 pay was intended to compensate him for the work he did as acting superintendent in 2007–2008, and while this might readily explain a special bonus paid in 2008, it is a less convincing explanation for why Sulc's permanent base salary was higher than Flaherty's. Finally, while a reasonable jury would likely have to conclude that the District Defendants needed to give Sulc a raise from the $219,990.97 he was earning as deputy superintendent, there is no evidence that Sulc demanded the full $240,000 he received.

Therefore, the Court finds that there are triable issues of fact with respect to the plaintiff's EPA claim, and denies the District Defendants' motion for summary judgment on the plaintiff's EPA claim.

III. CONCLUSION

For the foregoing reasons, it is hereby

ORDERED that the plaintiff's motion to serve a late notice of claim is denied; and it is further

ORDERED that the plaintiff's state law causes of action for breach of contract and violation of the New York Human Rights Law are dismissed for failure to serve a notice of claim; and it is further

ORDERED that the defendants' motion for summary judgment on the plaintiff's Section 1983 equal protection cause of action is granted, and that cause of action is dismissed; and it is further

ORDERED that the District Defendants' motion for summary judgment on the plaintiff's Equal Pay Act claim is denied; and it is further

ORDERED that all causes of action against the individual defendants Arlene Martin, Christine Perrino, and Marianne Fisher are dismissed; and it is further

ORDERED that the Clerk of the Court is respectfully directed to amend the caption in this case to read as follows:

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

MAUREEN FLAHERTY,

Plaintiff,

-against-

MASSAPEQUA PUBLIC SCHOOLS and MASSAPEQUA BOARD OF EDUCATION,

Defendants.

SO ORDERED.