Colandrea v. Hunter-Tannersville Central School District et al

Filing 35

MEMORANDUM-DECISION AND ORDERED, that Defendants Motion for Summary Judgment (Dkt. No. 23) is DENIED. Signed by Senior Judge Lawrence E. Kahn on March 22, 2017. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DARLENE COLANDREA,
Plaintiff,
-against-

1:15-CV-0456 (LEK/ATB)

HUNTER-TANNERSVILLE CENTRAL
SCHOOL DISTRICT, et al.,
Defendants.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Darlene Colandrea commenced the present action against Defendants Hunter-

Tannersville Central School District (“HTCSD”) and Patrick Darfler-Sweeney alleging
discrimination and unlawful retaliation in violation of the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 621 et seq., and the New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. Law § 290 et seq. Dkt. No. 1 (“Complaint”). Presently before the
Court is Defendants’ Motion for Summary Judgment. Dkt. Nos. 23 (“Motion”), 23-2
(“Defendants’ Memorandum”), 23-3 (“Defendants’ Statement of Material Facts”); see also Dkt.
Nos. 31 (“Opposition”), 32 (“Plaintiff’s Statement of Material Facts”), 33 (“Plaintiff’s Statement
of Material Facts Response”). For the following reasons, Defendants’ Motion is denied.
II.

BACKGROUND
Colandrea has been employed as a teacher by HTCSD since approximately September

1981, and she is fifty-nine years old. Dkt. No. 34 (“Colandrea Affidavit”) ¶¶ 3–4. Colandrea
teaches prekindergarten and, until 2014, had uniformly received exemplary performance reviews.

Id. ¶¶ 5, 7–8. In 2014, Colandrea became the first teacher in her district to receive the New York
State Elementary Classroom Teachers Association (“NYSECTA”) Pre-K Teacher of the Year
Award. Id. ¶ 35. Throughout her time at HTCSD, Colandrea participated in various after-school,
mentoring, and professional development programs. Id. ¶ 10. She also worked as a summer
school teacher and spent ten years as the coordinator of the summer school program. Id. ¶ 39.
In fall 2013, HTCSD established the Community Rural Opportunities Program
(“CROP”), which runs throughout the school year and the summer. Dkt. No. 23-1 (“Lynch
Affirmation”) ¶ 20. CROP has two different types of employees: a Site Coordinator, who runs
the program, and Activity Leaders, who are supervised by the Site Coordinator. Id. ¶ 22.
Colandrea applied to be the Site Coordinator for the 2013–2014 school year, and she was
appointed to the position despite objections from Sweeney, who was the District Superintendent
until retiring on June 30, 2016. Colandrea Aff. ¶¶ 12, 65. Although Sweeney eventually
recommended Colandrea for the position, he did so only under the direction of the Board of
Education (the “Board”). Dkt. No. 24-1 (“Sweeney Deposition”) at 52:14–53:8. Until May 2014,
Colandrea received excellent evaluations for her work as Site Coordinator during the 2013–2014
school year. Colandrea Aff. ¶ 37.1
On May 10, 2014, while she was Site Coordinator, Colandrea led a field trip to the Bronx
Zoo for children in kindergarten through seventh grade. Id. ¶ 13; Lynch Affirm. ¶ 25. Afterward,

1

In Colandrea’s affidavit, she asserts that she received excellent evaluations for her work
as Site Coordinator. Colandrea Aff. ¶ 37. Colandrea also submitted an exhibit entitled “CROP
Evaluations April 2013,” but the evaluations do not mention Colandrea or CROP. Dkt. No. 30-6
(“Colandrea Aff. Ex. 6”). Furthermore, it is not clear how there could be any reviews of
Colandrea’s work as Site Coordinator in April 2013 if CROP was not established until fall 2013.
Lynch Affirm. ¶ 20.
2

two of the parents who attended the trip wrote letters complaining about their experience.
Colandrea Aff. ¶ 14. They complained that the school buses were too slow, the trip ended late,
and the teachers were texting each other. Id. Colandrea responds that the complaints were
unreasonable because the bus may not travel faster than fifty-five miles per hour, the trip ended
late because the bus made an emergency stop to bring a child to the bathroom, and the teachers
were texting each other to keep track of the children, as various parents were violating policy by
leaving early with their children. Id. ¶¶ 14–15. Furthermore, Colandrea was not reprimanded after
the trip, and she claims that Sweeney “did not blame [her] or the teachers, but rather the parent
chaperones for the chaos.” Id. ¶ 16. Sweeney wrote an email to the complaining parents and
informed them that he was changing CROP’s policy so that parents could no longer serve as
chaperones, and that parents would need to sign their children out directly with Colandrea in the
future. Sweeney Dep. Ex. 28.
The following month, Colandrea was involved in an incident at the school cafeteria with
a student’s parent, though not during a CROP event. Pl.’s SMF Resp. ¶ 23. On June 17, 2014,
Colandrea reprimanded a student for throwing a “super ball” near glass punch bowls and glass
picture frames, while the child’s parent, Jessika McKinnie, was in the cafeteria. Colandrea Aff.
¶¶ 26–27. McKinnie said that Colandrea had no right to discipline her child while McKinnie was
present. Id. Colandrea responded by telling McKinnie that “if she was the parent, then she should
go be the parent, as her child [was] crying.” Id. ¶ 28. Both McKinnie and Colandrea raised their
voices. Dkt. No. 24 (“Colandrea Deposition”) at 36:23–37:1. Defendants claim that Colandrea
“was screaming at [McKinnie] and said that [McKinnie] was not a good mother, or words to that
effect,” Lynch Affirm. ¶ 28, but both McKinnie and Colandrea deny this claim, Colandrea Aff. ¶
3

29; Dkt. No. 30-3 (“McKinnie Affidavit”) ¶ 10. McKinnie also states that she never discussed the
incident with Sweeney. McKinnie Aff. ¶¶ 12–15.
The following day, Colandrea received an email from Sweeney stating that he would not
recommend her for reappointment as Site Coordinator for the 2014 summer program. Dkt. No.
30-5 (“Sweeney CROP Email”). Sweeney provided no explanation for his decision, id., and the
following day he recommended that the position be given to Rosie Iacono, who was less
qualified than Colandrea but approximately four years younger, Colandrea Aff. ¶ 37.2 Over the
summer of 2014, Colandrea also applied multiple times to be an Activity Leader, but her
applications were denied. Id. ¶¶ 44, 57. Instead, a teacher’s aide, who was younger and less
qualified than Colandrea, was hired for the position. Id. ¶ 45. According to Defendants,
Colandrea was not hired for the CROP positions because of the problems with the trip to the
Bronx Zoo and because of the incident with McKinnie. Lynch Affirm. ¶ 32. Colandrea disagrees
and notes that a younger teacher, Tina Schlegal, had a similar incident with McKinnie on
October 29, 2015, but Schlegal never received a counseling memorandum and continued
working as an Activity Leader. Colandrea Aff. ¶ 61. Colandrea claims that the real reason she
was not rehired as Site Coordinator is that Defendants wanted her to retire from teaching, but she
refused to do so. Id. ¶ 37.
Colandrea is one of the oldest teachers in her school district and is the oldest teacher at
her school. Id. ¶ 6. She is also a member of the district’s teachers’ union and is covered by a
collective bargaining agreement (“CBA”) between HTCSD and the teachers’ union. Defs.’ SMF
2

Despite Colandrea’s repeated assertion that she is approximately five years older than
Iacano, Colandrea Aff. ¶ 38; Opp’n at 18, she is actually slightly less than four years older, Defs.’
SMF ¶¶ 2, 30.
4

¶ 4. The CBA contains a provision for an early retirement incentive that amounted to $41,000 for
Colandrea. Id. ¶ 6; Dkt. No. 30-7 (“Murin Affidavit”) ¶ 4. Once a teacher becomes eligible for
the early retirement incentive, the CBA provides a window in which eligible teachers may elect
to take the incentive, but teachers must submit a written application to the District
Superintendent at least 120 days prior to the last day of their employment. Defs.’ SMF ¶¶ 6–7.
Teachers may also apply to extend the window of eligibility for the retirement incentive on a
year-to-year basis, but such applications must be made six months before the expiration of the
eligibility window. Id. ¶ 8. The District Superintendent must recommend a teacher to the Board,
Sweeney Dep. Ex. 15B at 1, and the final decision on an extension request is made by a vote of
the Board, Defs.’ SMF ¶ 10.
Colandrea’s eligibility window for the retirement incentive closed in June 2014, Lynch
Affirm. ¶ 11, and she timely applied for an extension on December 13, 2013, Colandrea Aff.
¶ 18. Colandrea applied for the extension in part because her daughter has a life-long disability,
and Colandrea knew that issues surrounding her daughter’s disability insurance would not be
resolved until after July 1, 2014. Id. ¶ 24. When Colandrea raised the issue with Sweeney, he told
her that she should retire because she would make more money, and he said that he would not
bring her extension request to the Board for a vote. Id. ¶ 18. After discovering that her request for
an extension had been placed on the Board’s meeting agenda, Colandrea reached out to the
individual members of the Board to inform them of her daughter’s health insurance situation. Id.
¶ 19. The Board ultimately denied Colandrea’s extension request in a 5–0 vote. Defs.’ SMF ¶ 14.

5

On May 8, 2014, Colandrea received a counseling memorandum from Sweeney
reprimanding her for reaching out to individual members of the Board “in clear violation of state
education law and procedural process.” Sweeney Dep. Ex. 15A at 1. Sweeney went on to state
that Colandrea had shown a “pattern of defiance of authority and rude/disrespectful behavior.” Id.
Colandrea responded that this was the first negative letter she had received in her personnel file
in thirty-three years of teaching, and that she was not negotiating with the Board; she was only
informing them of her daughter’s health insurance situation, which Sweeney had failed to do on
her behalf. Sweeney Dep. Ex. 15B at 1.
Despite the Board’s vote and Sweeney’s May 2014 counseling memorandum, Sweeney
gave Colandrea several more opportunities to accept the retirement incentive without the normal
requirement of 120 days’ written notice. Defs.’ SMF ¶ 15. In fact, Colandrea and Sweeney met
four times between June 20, 2014, and July 1, 2014, to discuss the retirement incentive.
Colandrea Aff. ¶ 40. Ultimately, Colandrea rejected the early retirement incentive, and she
continues to be employed as a teacher by HTCSD. Lynch Affirm. ¶¶ 18–19. Although
Defendants claim that Colandrea was never pressured to retire, id. ¶ 16, Colandrea tells a
different story, Colandrea Aff. ¶¶ 40–43; Colandrea Dep. 15:16–15:20.
Colandrea claims that Sweeney took several steps to coerce her into retiring. Colandrea
Aff. ¶¶ 18, 37. First, on June 18, 2014, Sweeney informed Colandrea that he would not
recommend her for the Site Coordinator position. Id. ¶ 32. As a result, Colandrea claims to have
lost a significant amount of potential income and pension benefits. Id. ¶¶ 46–47. Indeed,
Colandrea claims that—assuming she would have worked five more years as Site Coordinator
before retiring, and that she would have lived for thirty years after retiring—she lost $100,000 in
6

potential income, and she lost an additional $400,000 from her pension. Id. Second, Sweeney
rejected Colandrea’s June 22, 2014 application to work as an Activity Leader in the CROP
program. Id. ¶ 44. Third, in a June 30, 2014 meeting, Sweeney informed Colandrea that she
would not be considered for any extra paid work assignments that were not guaranteed by her
contract during the upcoming school year. Id. ¶ 52. Finally, Sweeney did not publicly recognize
Colandrea for receiving the NYSECTA Pre-K Teacher of the Year award, and he prematurely
removed the announcement from the elementary school billboard. Id. ¶ 35.
After her applications for the Site Coordinator and Activity Leader positions were
rejected, Colandrea filed a complaint with the Equal Employment Opportunity Commission
(“EEOC”) and the New York State Division of Human Rights (“NYSDHR”) on July 8, 2014. Id.
¶¶ 33, 44, 55. Defendants were notified of the complaint sometime in August 2014, and
Colandrea claims that Sweeney retaliated against her for filing those complaints. Id. First,
Colandrea submitted additional applications for the CROP positions in July and August 2014,
which were also rejected. Id. ¶ 57. Second, Colandrea was not asked to mentor any new staff
members. Opp’n at 22–23. Third, on September 9, 2014, Colandrea received a counseling
memorandum from Sweeney reprimanding her for her behavior during the June 17, 2014 incident
with McKinnie. Sweeney Dep. Ex. 16A. Colandrea claims that the timing of the counseling
memorandum—which she received months after the incident, but just weeks after the school
learned of her age discrimination complaint—shows that it was retaliatory. Colandrea Aff. ¶ 55.
Defendants, on the other hand, claim that the counseling memorandum was not retaliation; the
memorandum was delayed only because the incident occurred just before summer break. Lynch
Affirm. ¶¶ 29–30.
7

On April 14, 2015, Colandrea filed the Complaint in this action, alleging that Defendants
discriminated and retaliated against her in violation of the ADEA and NYSHRL. On July 14,
2016, Defendants filed the Motion for Summary Judgement. Colandrea submitted an opposition,
but Defendants did not file a reply.
III.

LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure instructs courts to grant summary

judgment if “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). Although “[f]actual disputes that are
irrelevant or unnecessary” will not preclude summary judgment, “summary judgment will not lie
if . . . the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Taggart v. Time, Inc., 924
F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact could find in favor of the
nonmoving party should summary judgment be granted.”).
The party seeking summary judgment bears the burden of informing the court of the basis
for the motion and of identifying those portions of the record that the moving party claims will
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Similarly, a party is entitled to summary judgment when the nonmoving party
carries the ultimate burden of proof and has failed “to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id.
at 322.
In attempting to repel a motion for summary judgment after the moving party has met its
initial burden, the nonmoving party “must do more than simply show that there is some
8

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). At the same time, a court must resolve all ambiguities and draw all
reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000); Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736,
742 (2d Cir. 1998). Thus, a court’s duty in reviewing a motion for summary judgment is
“carefully limited” to finding genuine disputes of fact, “not to deciding them.” Gallo v.
Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
IV.

DISCUSSION
Colandrea brings claims of discrimination and retaliation against both HTCSD and

Sweeney under the ADEA and the NYSHRL. Compl. ¶ 1. Claims under the NYSHRL and the
ADEA are analyzed under the same standard: the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Robles v. Cox & Co., 987 F. Supp. 2d
199, 205–06 (E.D.N.Y. 2013); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467
(2d Cir. 2001) (“Although there are differences between the State HRL . . . and the [ADEA], age
discrimination suits brought under the State HRL . . . are subject to the same analysis as claims
brought under the ADEA.”).
A. Discrimination
Under the McDonnell Douglas framework, a plaintiff alleging age discrimination must
first make out a prima facie case by showing that: (1) she was over the age of forty, (2) she was
qualified for the position in question, (3) she suffered an adverse employment action, and (4) the
adverse action took place under circumstances giving rise to an inference of discrimination. Terry
v. Ashcroft, 336 F.3d 128, 137–38 (2d Cir. 2003). “A plaintiff’s burden of establishing a prima
9

facie case is de minimis.” Abdu-Brisson, 239 F.3d at 467. If the plaintiff meets this minimal
burden, the employer must offer a “clear and specific” nondiscriminatory reason for the adverse
employment action. Meiri v. Dacon, 759 F.2d 989, 996–97 (2d Cir. 1985). Once such a reason is
provided, the plaintiff can no longer rely on her prima facie case but may still prevail if she can
show that the employer’s determination was in fact the result of discrimination. Holcomb v. Iona
College, 521 F.3d 130, 138 (2d Cir. 2008). “‘[A] plaintiff bringing a disparate-treatment claim
pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’
cause of the challenged adverse employment action’ and not just a contributing or motivating
factor.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010) (quoting Gross v.
FBL Fin. Servs., 557 U.S. 167, 180 (2009)).
1. Prima Facie Case
Colandrea clearly satisfies the first element of a prima facie case, as she was born on June
2, 1957, and was over the age of forty during the time period in question. Defs.’ SMF ¶ 2.
Second, Defendants do not dispute that Colandrea was qualified for the positions of Site
Coordinator and Activity Leader. Colandrea had been a teacher for over thirty years, she had
significant experience supervising extracurricular activities, and she spent ten years as the
coordinator of the summer school program. Colandrea Aff. ¶¶ 10, 39.
As for the third element of a prima facie case, Defendants argue that Colandrea did not
suffer an adverse employment action. Defs.’ Mem. at 9. Specifically, Defendants argue that
Colandrea continues to teach at HTCSD and was merely offered an incentive to retire, which
cannot qualify as an adverse action. Id. Defendants may be correct that the offer of the retirement
incentive was not an adverse employment action, see Auerbach v. Bd. of Educ. of the
10

Haborfields Cent. Sch. Dist. of Greenlawn, 136 F.3d 104, 113 (2d Cir. 1998) (describing the
factors courts should consider when determining whether a retirement incentive complies with
the ADEA), but Colandrea does not claim that the offer of the retirement incentive itself violated
the ADEA, Opp’n at 14. As alleged in the Complaint, and reiterated in the Opposition, Colandrea
suffered adverse employment actions when she was not rehired as Site Coordinator, when she
was not hired as Activity Leader, and when she was refused any additional paid work. Compl. ¶¶
25, 31, 33, 35; Opp’n at 15–16.
In the Second Circuit, “a plaintiff may suffer an adverse employment action’ if she
endures a ‘materially adverse change in the terms and conditions of employment.’” Richardson v.
N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999) (quoting Torres v. Pisano, 116
F.3d 625, 640 (2d Cir. 1997)), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 57 (2006). “To be ‘materially adverse’ a change in working conditions
must be ‘more disruptive than a mere inconvenience or alteration of job responsibilities.’”
Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (quoting Crady v. Liberty
Nat’l Bank & Tr. Co., 993 F2d 132, 136 (7th Cir. 1993)). Examples of materially adverse
changes include “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.” Id.
The decision not to rehire Colandrea as Site Coordinator, as well as the decisions not to
hire her as an Activity Leader or offer her any additional paid work, had materially adverse
consequences on the terms and conditions of Colandrea’s employment. See Hrisinko v. N.Y.C.
Dep’t of Educ., 369 F. App’x 232, 234 (2d Cir. 2010) (“The ADEA prohibits employers from
11

refusing to hire, discharging, or otherwise discriminating against an employee with regard to
compensation, terms, conditions or privileges of employment because of age.”); Herling v.
N.Y.C. Dep’t of Educ., No. 13-CV-5287, 2014 WL 1621966, at *6 (E.D.N.Y. Apr. 23, 2014)
(“Denying an employee the opportunity to work overtime, comp time, or additional per-session
employment may also constitute an adverse employment action.”). Therefore, the Court is
satisfied that there is an issue of fact as to whether Defendants’ decisions not to hire Colandrea as
Site Coordinator, Activity Leader, or for any other paid work constitute adverse employment
actions.
Fourth, Defendants make two arguments as to why Colandrea has failed to show that any
adverse employment action occurred under circumstances giving rise to an inference of
discrimination: (1) the teacher hired to replace Colandrea was less than four years younger than
her, and (2) courts have been reluctant to find discrimination where the person who made the
decision to fire is the same person who made the decision to hire. Defs.’ Mem. at 11.
There is no bright line rule as to the size of an age discrepancy that is required to support
an inference of discrimination, Holowecki v. Fed. Exp. Corp., 644 F. Supp. 2d 338, 357
(S.D.N.Y. 2009), but it is well established that an inference of age discrimination “cannot be
drawn from the replacement of one worker with another insignificantly younger,” O’Connor v.
Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996). Courts in this circuit have found an age
discrepancy of less than three years to be insignificant, Jaworski v. Westplex Corp., 49 F. Supp.
2d 151, 159 (W.D.N.Y. 1998), and a discrepancy of eight years to be “not insignificant,” Tarshis
v. Riese Org., 211 F.3d 30, 38–39 (2d Cir. 2000).

12

In this case, the fact that Colandrea’s replacement was less than four years younger may,
on its own, be insufficient to establish an inference of age discrimination. But even an
insignificant discrepancy does not prevent a plaintiff from making a prima facie showing of age
discrimination. See O’Connor, 517 U.S. at 312 (“That one member of the protected class lost out
to another member is irrelevant, so long as he lost out because of his age.”). Where the age
discrepancy alone is insufficient to establish an inference of discrimination, it may still—in
combination with other factors—support an inference of discrimination. Molin v. Permafiber
Corp., No. 01-CV-9279, 2002 WL 31760215, at *4 (S.D.N.Y. Dec. 9, 2002); see also Nembhard
v. Mem’l Sloan Kettering Cancer Ctr., No. 96-7406, 1996 WL 680756, at *4 (2d Cir. Nov. 22,
1996) (finding that a jury could infer age discrimination where the plaintiff was replaced by
someone only a year younger because her superior made discriminatory comments).
Defendants’ second argument is that Sweeney hired Colandrea for the Site Coordinator
position just one year before the alleged discrimination, which undermines any inference of
discrimination. Defs.’ Mem. at 11. Courts have recognized this “same-actor inference” and found
that “[w]hen the same actor hires a person within the protected class, and then later fires that
same person, ‘it is difficult to impute to her an invidious motivation that would be inconsistent
with the decision to hire.’” Carlton v. Mystic Trans., Inc., 202 F.3d 129, 138 (2d Cir. 2000)
(quoting Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997)). But the same-actor
inference should not be considered in relation to the prima facie case. Tarshis, 211 F.3d at 38–39
(citing Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991)). Instead, it should be considered at the
third stage of the McDonnell Douglas burden-shifting framework because “it creates a strong

13

inference that the employer’s stated reason for acting against the employee is not pretextual.”
Proud, 945 F.2d at 798.
Bearing in mind that a plaintiff’s burden of establishing a prima facie case is de minimis,
Colandrea has met that burden and shown that the adverse actions occurred under circumstances
giving rise to an inference of discrimination. Colandrea was the oldest teacher at her school, and
she was replaced as Site Coordinator by another teacher who, although less than four years
younger, was less qualified. Colandrea Aff. ¶ 39. The teacher who was hired as Activity Leader
was also younger and less qualified than Colandrea. Id. ¶ 45. Sweeney also denied Colandrea any
extra paid assignments, but he allowed her do to extra assignments on a volunteer basis. Id. ¶ 56.
All of these employment actions took place soon before and after Colandrea declined the
retirement incentive, which she claims Sweeney pressured her to her to accept. Id. ¶¶ 18, 37.
2. Legitimate, Nondiscriminatory Reason
A defendant’s burden of providing a legitimate, nondiscriminatory reason for the adverse
employment action “is not a particularly steep hurdle.” Hyek v. Field Support Servs., 702 F.
Supp. 2d 84, 93 (E.D.N.Y. 2010). “Any stated reason is sufficient; the employer need not
persuade the court that the proffered reason was the actual reason for its decision.” Tarshis, 211
F.3d at 36. “If the employer makes this showing, the presumption of discrimination raised by
plaintiff establishing his prima facie case drops out, and the burden shifts back to plaintiff to
prove that discrimination was the real reason for the employment action.” Id.
Here, Defendants claim to have three legitimate, nondiscriminatory reasons for any
adverse employment actions taken against Colandrea: (1) the June 17, 2014 incident in the
cafeteria involving McKinnie, (2) the problems with the field trip to the Bronx zoo, and (3) the
14

May 8, 2014 counseling memorandum that Colandrea received for “insubordinate and insolent
behavior.” Defs.’ Mem. at 12–13. Therefore, the burden shifts back to Colandrea to establish that
age discrimination was the real reason she was not rehired as Site Coordinator, hired as Activity
Leader, or hired for any other paid work assignments outside of those guaranteed in her contract.
3. Pretext for Unlawful Discrimination
Once an employer has provided a nondiscriminatory reason for the challenged
employment action, the plaintiff may still prevail if she can show that the action was in fact the
result of discrimination. “‘[A] plaintiff bringing a disparate-treatment claim pursuant to the
ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the
challenged adverse employment action’ and not just a contributing or motivating factor.”
Gorzynski, 596 F.3d at 106 (quoting Gross, 557 U.S. at 180). Therefore, Colandrea must provide
sufficient evidence to enable a reasonable jury to conclude by a preponderance of the evidence
that age was a “but-for” cause of the adverse employment actions.
To show that an employer’s reasons are pretextual and that age motivated the adverse
action in the summary judgement context, the plaintiff must raise an “issue of material fact as to
whether (1) the employer’s asserted reason for [the adverse action] is false or unworthy of belief,
and (2) more likely than not the employee’s age was the real reason for the [adverse action].”
Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994) (quoting Woroski v.
Nashua Corp., 31 F.3d 105, 108–09 (2d Cir. 1994)). Defendants point to three supposedly
legitimate, nondiscriminatory reasons for the challenged employment actions, and Colandrea
attempts to show that those reasons are pretextual and that age discrimination motivated
Defendants’ actions.
15

First, Defendants dedicate the majority of their argument to the June 17, 2014 incident in
the cafeteria involving Colandrea and McKinnie. Defs.’ Mem. at 12–13. The day after the
incident, Colandrea received an email from Sweeney informing her that he had “removed [his]
recommendation for [her] to be appointed as site coordinator for the 2014 summer crop
program.” Sweeney Dep. Ex. 7. He did not explain his decision but offered to meet with
Colandrea to address any questions. Id. Defendants argue that the temporal proximity between
the incident in the cafeteria and Sweeney’s email shows that the incident was the actual reason
for the decision not to rehire Colandrea as Site Coordinator. Defs.’ Mem. at 12.
But according to Colandrea, Sweeney’s quick response is actually evidence that the
incident was used as a pretext for age discrimination. Opp’n at 20–21. In making his decision
less than twenty-four hours after the incident, Sweeney failed to discuss the incident with
McKinnie or conduct an appropriate investigation. Id. at 21. And in his haste, Sweeney may have
come to an inaccurate understanding of the incident. Sweeney claimed in the counseling
memorandum formally disciplining Colandrea for the incident, Sweeney Dep. Ex. 16A, and in
his deposition, id. at 90:19–91:23, that Colandrea called McKinnie a bad parent. Colandrea and
McKinnie, on the other hand, both maintain that Colandrea never said such a thing. Colandrea
Aff. ¶ 29; McKinnie Aff. ¶ 10. McKinnie even goes so far as to say that she would have called
the police if Colandrea had called her a bad parent. McKinnie Aff. ¶ 10. As further evidence that
the cafeteria incident was pretext, Colandrea points out that another teacher, Tina Schlegal, was
involved in a similar incident with McKinnie, but that teacher was not formally reprimanded and
did not lose her position as a CROP Activity Leader. Colandrea Aff. ¶ 61. Schlegal is eight years
younger than Colandrea. Id. ¶ 62.
16

Second, Defendants suggest that the problems with the May 10, 2014 field trip to the
Bronx Zoo provide another legitimate, nondiscriminatory reason for the employment actions.
Defs.’ Mem. at 13. But Defendants provide no details as to what went wrong on the trip, or how
the trip impacted their hiring decisions. Defendants merely state that, after the trip, they received
letters with complaints from parents, Defs.’ SMF ¶ 22, and that Colandrea herself admitted it was
not a good trip, Defs.’ Mem. at 13. Colandrea, on the other hand, provides a detailed account of
the trip to the Bronx Zoo and the subsequent complaints. Colandrea Aff. ¶¶ 13–17. According to
Colandrea, she was never reprimanded for any of the problems relating to the trip, and Sweeney
blamed the parent chaperones for the trip’s problems. Id. ¶ 16. After the trip, Sweeney changed
the chaperone policy; he did not criticize Colandrea’s leadership. Id. ¶ 17.
Finally, Defendants point to a counseling memorandum that Colandrea received on May
8, 2014, for “Insubordination & Insolence” as a third reason for their decision not to rehire her.
Defs.’ Mem. at 13.3 Although Defendants provide little information about the events underlying
the memorandum, they attach a copy of the memorandum to Sweeney’s deposition testimony.
Sweeney Dep. Ex. 15A. The memorandum—which Colandrea claims was the first negative letter
that she had received in over thirty years of teaching—primarily concerns contacts that Colandrea
had with the Board that were outside “the chain of command.” Id.4 In particular, Colandrea

3

Although the May 8, 2014 counseling memorandum is cited in the Memorandum as a
reason Colandrea was not hired as Site Coordinator or Activity Leader, it was not mentioned in
the affirmation submitted by Defendants’ attorney, John Lynch. In fact, Lynch specifically
affirms that Colandrea “was not recommended for [the Activity Leader] position based solely
upon her actions of June 17, 2014, and the issues related to the Bronx Zoo trip in May, 2014.”
Lynch Affirm. ¶ 35.
4

The counseling memorandum also briefly mentions a confrontation between Colandrea
and members of the Board during an April 2014 budget workshop. Sweeney Dep. Ex. 15A. But
17

reached out to individual members of the Board to plead her case for an extension of the
retirement incentive. Colandrea Aff. ¶ 19. But Colandrea claims that she reached out to the Board
because Sweeney told her that he would not be taking the issue to the Board for a vote, though he
later added it to the Board’s agenda without informing Colandrea. Id. ¶¶ 18–19. Colandrea then
reached out to the Board members to inform them of her daughter’s health insurance situation
because Sweeney had failed to so on her behalf. Id. ¶ 20. Furthermore, Colandrea states that there
is no official chain of command for such communications. Id. ¶ 22.
Colandrea has raised an issue of material fact as to whether each of Defendants’ proffered
reasons is false or unworthy of belief. “Even under the exacting but-for standard applicable to
ADEA claims of age discrimination, ‘a plaintiff’s prima facie case, combined with sufficient
evidence to find that the employer’s asserted justification is false, may permit the trier of fact to
conclude that the employer unlawfully discriminated.’” Hall v. N. Bellmore Sch. Dist., 55 F.
Supp. 3d 286, 300 (E.D.N.Y. 2014) (quoting (Reeves v. Sanderson Plumbing Prods., Inc., 500
U.S. 133, 141 (2000)). In Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 107–09 (2d Cir.
2010), the Second Circuit found that the plaintiff created a material issue of fact as to whether
age was the but-for cause of her termination under circumstances similar to the facts of this case.
In particular, the plaintiff in Gorzynski showed that the defendants relied on an incident that was
not properly investigated, and that the defendant did not discipline younger employees who had
been involved in similar incidents. Id. Similarly, the Court concludes in this case that
Colandrea’s prima facie case—when combined with her evidence that Defendants’ stated reasons

that confrontation is not mentioned anywhere else in Defendants’ submissions.
18

are false—creates a genuine issue of material fact as to whether Defendants’ nondiscriminatory
reasons were pretext for discrimination.
4. Same-Actor Inference
“The premise underlying the [same-actor] inference is that if the person who fires an
employee is the same person that hired him, one cannot logically impute to that person an
invidious intent to discriminate against that employee.” Carlton, 202 F.3d at 132. Defendants
argue that Sweeney and the Board hired Colandrea less than a year before choosing not to rehire
her, and therefore they are entitled to an inference that their decision was not motivated by
discrimination. Defs.’ Mem. at 11.
“[E]ven at the summary judgment stage of litigation, ‘the same-actor inference is
permissive, not mandatory, and even if the same individuals made both decisions, the Court
would not be compelled to give [the defendant] the benefit of the inference.’” Benedith v.
Malverne Union Free Sch. Dist., 38 F. Supp. 3d 286, 319 (E.D.N.Y. 2014) (quoting Memnon v.
Clifford Chance US, LLP, 667 F. Supp. 2d 334, 351 (S.D.N.Y. 2009)). The fact that Colandrea
was hired and then passed over by Sweeney and the Board within one year weighs in favor of
applying the same-actor inference. There are, however, two considerations that lead the Court to
conclude that the same-actor inference is weak in this case.
First, although the passage of one year is not usually enough to preclude the application
of the same-actor inference, see Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir. 2000) (finding
that the same-actor inference was entitled to some weight in an ADEA claim where the plaintiff

19

was hired and fired by the same person within three years),5 there were significant changes in
Colandrea’s employment during that year. Most notably, Colandrea’s retirement incentive was
set to expire. Therefore, the logic of the same-actor inference—that the same person who hired
an employee cannot be presumed to have a discriminatory intent when she later fires that same
employee—does not apply with its usual force in this case. It is plausible for an employee to be
hired for short-term, paid assignments, and then—less than a year later—to be denied those same
assignments because of her refusal to retire at the expected time.
Second, it is not entirely clear who was responsible for the decisions to hire and then not
rehire Colandrea. In general, the same actor inference “may be applied even when the supervisor
at issue . . . is not the only person with input into the hiring and firing decision. The inference ‘is
applicable so long as one management-level employee played a substantial role in both the hiring
and firing of the plaintiff.’” Jones v. Yonkers Pub. Sch., 326 F. Supp. 2d 536, 546 (S.D.N.Y.
2004) (quoting Ramos v. Marriott Int’l, Inc., 134 F. Supp. 2d 328, 345 (S.D.N.Y. 2001)). In this
case, however, Sweeney only reluctantly recommended Colandrea to the Board in 2013 after the
Board requested that he do so. Sweeney Dep. at 53:2–53:5. Because Sweeney did not want to
hire Colandrea as Site Coordinator in the first place, the same-actor inference is very weak as to
Sweeney.
As for the Board itself, it is not clear on the record before the Court who was on the
Board when Colandrea was hired, or whether the same members were on the Board when she
was not rehired. See Kastel v. Winnetka Bd. of Educ., 946 F. Supp. 1329, 1335 (N.D. Ill. 1996)
5

Other courts in the Second Circuit have found that the “inference remains significant
where the time period between hiring and firing is less than two years.” Ramos v. Marriott Int’l,
Inc., 134 F. Supp. 2d 328, 345 (S.D.N.Y. 2001) (collecting cases).
20

(“The ‘same actor’ inference cannot properly be imputed to the organization as a whole.”).6 It is
also unclear what role the Board had in deciding not to rehire Colandrea. Given the fact that the
window for Colandrea to accept the early retirement incentive closed during the year in question,
and the lack of clarity as to who was responsible for the relevant employment actions, the sameactor inference does not foreclose Colandrea’s age discrimination claims.
B. Retaliation
Retaliation claims under the ADEA and the NYSHRL also proceed according to the
McDonnell Douglas burden-shifting framework. Weber v. City of New York, 973 F. Supp. 2d
227, 264 (E.D.N.Y. 2013). Accordingly, a plaintiff must first establish a prima facie case by
showing (1) that the plaintiff engaged in statutorily protected activity, (2) that the employer took
adverse action against the plaintiff, and (3) that there was a causal connection between the
adverse action and the protected activity. Gorzynski, 596 F.3d at 110 (citing Kessler v.
Westchester Cty Dep’t of Soc. Servs., 461 F.3d 199, 205–06 (2d Cir. 2006)). As with a
discrimination claim, once a plaintiff establishes a prima facie case of retaliation, “then a
presumption of retaliation arises and the employer must articulate a legitimate, non-retaliatory
reason for the action that the plaintiff alleges was retaliatory.” Weber, 973 F. Supp. 2d at 264
(quoting Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010)). If the
employer succeeds at the second stage, then the burden shifts back to the plaintiff to show that
retaliation was a but-for cause of the adverse employment action. Id. at 266.

6

In response to Colandrea’s first set of interrogatories, Defendants state the names of
each Board member in 2014, Dkt. No. 26 (“Interrogatory Response”) at 1, but it is not clear who
was on the Board when Colandrea was hired as Site Coordinator in 2013.
21

1. Prima Face Case
a.

Protected Activity

Colandrea claims that she was retaliated against for filing an age discrimination
complaint with the EEOC and the NYSDHR. Opp’n at 22. An employee engages in protected
activity when she complains about or otherwise opposes conduct that she reasonably believes
constitutes forbidden discrimination or retaliation. Sumner v. U.S. Postal Serv., 899 F.2d 203,
209 (2d Cir. 1990). Complaints of age discrimination are protected activity under the ADEA. 29
U.S.C. § 623(d). According to Colandrea, she filed the complaint on July 9, 2014, and
Defendants received notice of her complaint sometime in August 2014. Colandrea Aff. ¶ 33.
b.

Adverse Employment Action

For retaliation to be actionable, a plaintiff must show that her employer took an action
that “well might have ‘dissuaded a reasonable worker from making or supporting a charge of
discrimination.’” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68 (quoting Rochon v.
Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). “Crucially, the broadness of this definition
means that ‘the scope of [the ADEA’s] anti-retaliation provision is broader than that of its
discriminatory action provision.’” Cerni v. J.P. Morgan Sec. LLC, No. 15-CV-5389, 2016 WL
5805300, at *3 (S.D.N.Y. Sept. 20, 2016) (quoting Patene v. Clark, 508 F.3d 106, 116 (2d Cir.
2007)).
Colandrea alleges that Defendants took multiple adverse employment actions against her
in retaliation for the age discrimination complaint. In particular, Colandrea alleges that (1) her
applications for paid CROP positions were denied, (2) she was not asked to be a mentor for any
new staff members, and (3) she received a counseling memorandum officially reprimanding her
22

for the incident with McKinnie. Compl. ¶¶ 43, 45, 47. Defendants argue that Colandrea does not
make a prima facie case of retaliation because the counseling memorandum does not constitute
an adverse employment action, but Defendants fail to even mention the other alleged adverse
actions. Defs.’ Mem. at 14. Because Defendants’ Motion does not address Colandrea’s retaliation
claims for the denial of paid CROP positions or the opportunity to mentor new staff members,
those claims survive the summary judgment motion.
A counseling memorandum, on its own, may constitute an adverse action for the purposes
of a retaliation claim. Under the stricter standard used in the discrimination context, a counseling
memorandum qualifies as an adverse action only where the plaintiff also alleges that it “created a
materially adverse change in her working conditions.” Weeks v. N.Y. State (Div. of Parole), 273
F.3d 76, 86 (2d Cir. 2001); see also Taylor v. N.Y.C. Dep’t of Educ., No. 11-CV-3582, 2012 WL
5989874, at *7 (E.D.N.Y. Nov. 30, 2012) (“Negative performance evaluations or ratings may, ‘in
some circumstances constitute adverse employment action,’ but they must trigger negative
consequences to the conditions of employment to qualify as such.” (quoting Lawrence v.
Mehlman, 389 F. App’x 54, 56 (2d Cir. 2010))). In the retaliation context, however, a plaintiff
must show only that the counseling memorandum might well have dissuaded a reasonable
employee from making a charge of discrimination. “[U]nder this generous standard, a negative
performance review can constitute an adverse action for purposes of a retaliation claim.” Cerni,
2016 WL 5805300, at *3 (citing Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 91 (2d
Cir. 2015)). Here, the counseling memorandum—which refers to Colandrea’s conduct as
unprofessional, disrespectful, and inexcusable, Sweeney Dep. Ex. 16A—satisfies the adverse
action element of Colandrea’s retaliation claim.
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c. Causation
“[A] plaintiff must plausibly plead a connection between the [adverse employment]
act[ion] and his engagement in protected activity.” Vega v. Hempstead Union Free Sch. Dist.,
801 F.3d 72, 90 (2d Cir. 2015). “[F]or an adverse retaliatory action to be ‘because’ a plaintiff
made a charge, the plaintiff must plausibly allege that the retaliation was a ‘but-for’ cause of the
employer’s adverse action.” Id. (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517,
2533 (2013)). “[I]t is well settled that an ADEA plaintiff ‘can indirectly establish a causal
connection to support a . . . retaliation claim by showing that the protected activity was closely
followed in time by the adverse employment action.’” Mattera v. JPMorgan Chase Corp., 740 F.
Supp. 2d 561, 581 (S.D.N.Y. 2010) (alteration in original) (quoting Gorzynski, 596 F.3d at 110).
The incident with McKinnie took place on June 17, 2014, but Colandrea did not receive
the counseling memorandum until September 9, 2014. Therefore, Colandrea received the
counseling memorandum approximately one month after Defendants learned of her
discrimination complaint in August 2014, which is sufficiently close in time to support an
inference of retaliation. “There is no brightline rule for how long after a plaintiff has engaged in
the protected activity that the adverse action must have occurred to benefit from the inference,
but the Second Circuit has held that periods as long as five months are not too long.” Weber, 973
F. Supp. 2d at 270 (citing Gorzynski, 596 F.3d at 110–11).
In addition to temporal proximity, a plaintiff may also indirectly show causation by
providing evidence of “disparate treatment of fellow employees who engaged in similar
conduct.” Id. (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)). In this
case, Colandrea claims that a younger teacher was involved in a similar incident with McKinnie,
24

but that teacher did not receive a counseling memorandum. Therefore, Colandrea has met her
burden of establishing a causal connection between her age discrimination complaint and the
counseling memorandum, and she has made a prima facie case that the counseling memorandum
was retaliatory.
2. Legitimate, Nonretaliatory Reason and Pretext
When a plaintiff makes a prima facie case of retaliation, “a presumption of retaliation
arises,” and, “under the second step of the burden shifting analysis, the onus falls on the
employer to articulate a legitimate, non-retaliatory reason for the adverse employment action.”
Mendillo v. Prudential Ins. Co. of Am., 156 F. Supp. 3d 317, 341 (D. Conn. 2016) (quoting
Hicks v. Baines, 593 F. 3d 159, 170 (2d Cir. 2010)). Here, Defendants’ Memorandum does not
specify a legitimate, nonretaliatory reason for the September 9, 2014 counseling memorandum.
Defendants’ attorney affirmation, however, states that Colandrea received the counseling
memorandum because she had an argument with a parent during which she “was screaming at
the parent and said the parent was not a good mother, or words to that effect.” Lynch Affirm.
¶ 28. The affirmation further states that “the counseling memorandum for the June 17, 2014
incident was not retaliation for Plaintiff’s filing of a discrimination complaint with the EEOC or
the Division of Human Rights.” Id. ¶ 30.
Even if the Court were to find that these statements in the attorney affirmation satisfy
Defendants’ burden, Colandrea has produced evidence that casts significant doubt on
Defendants’ rationale for the counseling memorandum. In particular, Colandrea and McKinnie’s
affidavits both state that Colandrea never called McKinnie a bad parent, or said any other words
to that effect. Indeed, McKinnie says that no one from the school ever discussed the incident with
25

her at all. Therefore, Colandrea has created an issue of material fact as to whether the counseling
memorandum was issued in retaliation. Additionally, Defendants do not even address the other
retaliatory employment actions—particularly, the denial of paid CROP positions and the
opportunity to mentor new staff members—that Colandrea alleges in the Complaint. Defendants
motion for summary judgment on Colandrea’s retaliation claims must therefore be denied.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion for Summary Judgment (Dkt. No. 23) is DENIED;

and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

March 22, 2017
Albany, New York

26