McGuire-Welch v. The House of the Good Shepherd et al

Filing 55

MEMORANDUM-DECISION and ORDER: that defendants' motion for summary judgment (ECF No. 42 ) is Granted and the complaint is Dismissed. The Clerk of the Court shall enter judgment and close this case. Signed by Judge David N. Hurd on 11/4/2016. (hmr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------KATHLEEN MCGUIRE-WELCH,
Plaintiff,
-v-

6:14-CV-0278
(DNH/ATB)

THE HOUSE OF THE GOOD SHEPHERD;
THE HOUSE OF THE GOOD SHEPHERD’S
TILTON SCHOOL; SHANNON PERRI in her
individual and official capacity; ZYGMUNT
MALOWICKI in her individual and official capacity;
JOHN DOE(S) and JANE DOE(S),
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

BOSMAN LAW FIRM, LLC
Attorneys for the Plaintiff
201 West Court Street
Rome, New York 13440

A.J. BOSMAN, ESQ.
DANIEL W. FLYNN, ESQ.

HANCOCK, ESTABROOK LAW FIRM
Attorneys for the Defendants
1500 AXA Tower I
100 Madison Street, Suite 1500
Syracuse, New York 13202

JOHN T. MCCANN, ESQ.
ROBERT J. THORPE, ESQ.

DAVID N. HURD
United States District Judge
MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
On February 12, 2014, plaintiff Kathleen McGuire-Welch (“plaintiff” or “McGuire-Welch”)
filed this action against defendants The House of the Good Shepherd (“HGS”), The House of the
Good Shepherd’s Tilton School (the “Tilton School”), Shannon Perri (“Perri”), and Zygmunt
Malowicki (“Malowicki”, and collectively, the “defendants”) alleging age discrimination in violation

of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 - 634 (“ADEA”) and New York
State Human Rights Law, New York Executive Law § 296 (“NYSHRL”) and retaliation claims
pursuant to Title V of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”), the
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (the “RA”) and the NYSHRL. Plaintiff seeks
compensatory and punitive damages, and declaratory and injunctive relief. Defendants have
filed an answer and the parties have completed extensive discovery.
Currently pending is defendants’ motion for summary judgment. The motion is fully
briefed and oral arguments were held on June 3, 2016 in Utica, New York.
II. FACTUAL BACKGROUND
The following facts, taken from the Complaint, the parties’ statements pursuant to
Northern District of New York Local Civil Rule 7.1(a)(3) and other submitted evidence, are
undisputed unless otherwise indicated. Consideration has been given to whether the parties
have proffered admissible evidence in support of their positions and the facts are viewed in the
light most favorable to the nonmoving plaintiff.
McGuire-Welch was hired by HGS in 1991 to serve as the Chairperson for the Committee
on Special Education (“CSE”) at HGS’s Tilton School, a position she held for the duration of her
time of employment with HGS. See McGuire-Welch Affidavit, at ¶¶ 3, 4. The Tilton School is
a New York State Education Department (“NYSED”) certified program that provides educational
services to students ages 5 to 21 in connection with other services offered at HGS. During the
relevant times, defendant Zygmunt Malowicki served as the Assistant Executive Director of the
Tilton School. In her position, plaintiff oversaw the CSE process for students at the Tilton
School, including notifying parents of any change in a student’s Individualized Education

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Program (“IEP”), changes in such student’s Behavioral Intervention Program (“BIP”) and
coordinating the special education materials with the local school district such student attends.
In July 2011, Perri was promoted to the position of Coordinator of Education Services
and became McGuire-Welch’s direct supervisor. Id. at ¶ 5. Plaintiff alleges that soon after Perri
became her supervisor, Perri asked her when she planned on retiring. Id. at ¶ 6. Plaintiff also
alleges that Perri began to criticize her work product and challenging the performance of
plaintiff’s duties. Id. at ¶ 7. Soon thereafter, Perri discontinued plaintiff’s access to reports of
student incidents, such as fights, that plaintiff states she was required to investigate and
subsequently notify the appropriate school district of any conduct which could affect the student’s
IEP. Id. at ¶ 8. In February 2012, Perri completed a performance evaluation of plaintiff, noting
deficiencies in plaintiff’s performance, including that the quality of plaintiff’s work needed
improvement in its accuracy, that plaintiff needed to take more initiate in completing tasks and
improve her planning and organizational skills. See Malowicki Affidavit, Ex. 1.
In March 2012, NYSED audited the Tilton School’s compliance with NYSED regulations
and found numerous instances of noncompliance. As a result, NYSED required the School to
develop and implement a corrective action plan (the “Corrective Action Plan”), which defendants
contend directly related to McGuire-Welch’s responsibilities as CSE chairperson. In December
2012, there was an administrative meeting between representatives of HGS and NYSED to
address HGS’s outstanding noncompliance and the Corrective Action Plan. See Pl’s Rule 7.1
Statement, at ¶ 10. Plaintiff did not attend any of the relevant meetings with NYSED nor did she
participate in the development of the Corrective Action Plan. Id. at ¶ 14.
NYSED required that the Corrective Action Plan be completed by April 30, 2013. The
HGS internal target date for completion of plan was March 15, 2013 and many employees,
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including McGuire-Welch, were tasked with responsibilities concerning the plan. Defendants
contend that plaintiff was specifically tasked with ensuring that the School’s files evidenced
decisions regarding revisions to students’ BIPs or IEPs and for sending copies of such
documents, progress reports and meeting minutes to the students’ parents or guardians and
local school district. Perri alleges that she frequently had to follow up with plaintiff regarding her
responsibilities and was often frustrated with plaintiff’s lackadaisical approach to NYSED’s
demands. After NYSED’s deadline had passed, Perri contends that plaintiff had failed to correct
mistakes previously pointed out to her and that representatives of the School had to scramble
to meet NYSED’s requirements. Plaintiff contends that she did not receive updated training to
properly complete the tasks assigned to her until March 15, 2013 and suffered from her exclusion
from relevant meetings and the failure of defendants to provide guidance or information
regarding the Corrective Action Plan. See McGuire-Welch Affidavit, at ¶ 17. In June 2013, Perri
completed the 2012-2013 performance evaluation of plaintiff, again noting numerous deficiencies
in plaintiff’s work performance.
Additionally in June 2013, a Tilton School student was placed in jail. When the student
was released, McGuire-Welch states that the student or his or her teacher approached plaintiff
hoping to take a Regents examination the student was signed up for. Plaintiff alleges that she
informed Mary Palmer, a staff member identified as a team leader by plaintiff, that the student
had the right to take the test. However, she believes Perri prevented the student from taking the
test.
McGuire-Welch was terminated from her position on June 21, 2013 and was over 60
years old at the time of her termination. Plaintiff’s position was filled by an individual who was
29 years old at the time of hiring.
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III. DISCUSSION
Defendants argue that they are entitled to summary judgment because there is no
issue of material fact as to whether McGuire-Welch was properly discharged for legitimate,
nondiscriminatory reasons relating to her job performance and that such discharge was wholly
unrelated to plaintiff’s age or any alleged protected activities undertaken by plaintiff.
A. Summary Judgment Standard.
Summary judgment is appropriate where, construing the evidence in the light most
favorable to the non-moving party, “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); Richardson
v. Selky, 5 F.3d 616, 621 (2d Cir. 1993). “The party seeking summary judgment bears the
burden of establishing that no genuine issue of material fact exists and that the undisputed facts
establish her right to judgment as a matter of law.” Bowen v. National R.R. Passenger Corp.,
363 F. Supp. 2d 370, 373 (N.D.N.Y. 2005) (citing Rodriquez v. City of New York, 72 F.3d 1051,
1060-61 (2d Cir. 1995).
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24849 (1986). “[A] party opposing a properly supported motion for summary judgment ‘may not rest
upon the mere allegations or denials of [their] pleading, but . . . must set forth specific facts
showing that there is a genuine issue for trial.’” Id. (quoting First Nat’l Bank of Ariz. v. Cities
Svcs.Co., 391 U.S. 253, 288 (1968)). Those specific facts must be supported by “citing to
particular parts of materials in the record.” FED. R. CIV. P. 56(c)(1)(A). “If the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477
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U.S. at 249-50 (citations omitted). Affidavits submitted to defeat summary judgment must be
admissible themselves or must contain evidence that will be presented in an admissible form at
trial. See H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454–55 (2d Cir.1991) (stating that
“hearsay testimony . . . that would not be admissible if testified to at the trial may not properly be
set forth in [a Rule 56] affidavit.”).
Although discrimination claims may involve questions of intent that are ill-suited to
resolution at the summary judgment stage, the Second Circuit has gone “out of [its] way to
remind district courts that the ‘impression that summary judgment is unavailable to defendants
in discrimination cases is unsupportable.’” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.
2000) (quoting McLee v. Chrysler Corp., 38 F. 3d 67, 68 (2d Cir. 1994)). “[T]rial courts should
not treat discrimination differently from other ultimate questions of fact.” Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 148 (2000). Accordingly, “even in the discrimination
context”, a plaintiff must offer “more than conclusory allegations” to survive a motion for summary
judgment. Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010).
B. Governing Statutes.
McGuire-Welch alleges age discrimination in violation of the ADEA and NYSHRL and
retaliation claims pursuant to Title V of the ADA, the Rehabilitation Act and NYSHRL.
The ADEA establishes that it is “unlawful for an employer ... to discharge any individual
or otherwise discriminate against any individual with respect to his compensation, terms,
conditions or privileges or employment, because of such individual's age.” 29 U.S.C. § 623(a)(1);
see also Fagan v. New York State Elec. & Ga Corp., 186 F.3d 127, 132 (2d Cir. 1999). The
NYSHRL makes it unlawful for an employer “to discriminate against [an] individual in promotion,

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compensation or in terms, conditions, or privileges of employment, because of such individual's
age.” N.Y. Exec. Law § 296 (3–a)(a).
Courts use the triparite burden shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), to analyze intentional discrimination claims under the
ADEA and NYSHRL. See Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010);
Gorzynski, 596 F.3d at 106.

The plaintiff bears the initial burden of establishing, by a

preponderance of the evidence, a prima facie case of discrimination. See Holcomb v. Iona
College, 521 F.3d 130, 138 (2d Cir. 2008). To prevail on an ADEA claim, a plaintiff must show
that “(1) [s]he was within the protected age group; (2) [s]he was qualified for the position; (3)
[s]he was subject to an adverse employment action; and (4) the adverse action occurred under
circumstances giving rise to an inference of discrimination.” Terry v. Ashcroft, 336 F.3d 128, 138
(2d Cir. 2003). The class entitled to the statutory protection of the ADEA is limited to persons
40 years of age or older. See 29 U.S.C. § 631(a).
If the plaintiff establishes a prima facie case, the burden of production shifts to the
defendants to articulate a legitimate, non-discriminatory reason for the challenged adverse
employment decision or action. See Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir. 1997).
Once the defendant presents a legitimate, non-discriminatory reason, the burden returns to the
plaintiff “to demonstrate that defendant’s articulated reason for its decision is in fact a pretext for
discrimination[.]” Id. Critically, although McDonnell Douglas shifts the burden of production back
and forth between the parties, the ultimate burden of persuasion for a claim of intentional
discrimination is always on the plaintiff. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981) (“[The] ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against plaintiff remains at all times with plaintiff.”).
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In the summary judgment context, this means plaintiff must “establish a genuine issue
of material fact either through direct, statistical, or circumstantial evidence as to whether the
employer’s reason for discharging her is false . . .” Gallo v. Prudential Residential Servs., Ltd.
P’ship, 22 F.3d 1219, 1225 (2d Cir. 1994). “[U]nder the plain language of the ADEA, an
employee bringing a disparate treatment claim must prove by a preponderance of the evidence
that age was the ‘but-for’ cause behind the employer's adverse decision, and not merely one of
the motivating factors.” Hrisinko v. N.Y.C. Dep't of Educ., 2010 WL 826879, at *1 (2d Cir. Mar.
11, 2010).
The ADA makes it unlawful for an employer to “discriminate against any individual
because such individual has opposed any act or practice made unlawful by this chapter or
because such individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). The RA and
NYHRL contain similar provisions against retaliation and are governed in this respect by the
same standards as the ADA. See 29 U.S.C. § 794(d); N.Y. Exec. Law § 296(7); Weixel v. Board
of Educ. of the City of New York, 287 F.3d 138, 148–49 (2d Cir. 2002) (elements of a retaliation
claim under RA are same as the ADA); Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224,
234 (2d Cir. 2000) (applying ADA analysis to plaintiff's retaliation claim under both ADA and
NYHRL).
Claims for retaliation are analyzed under the same burden-shifting framework
established under McDonnell Douglas. See Weixel, 287 F.3d at 148; Lovejoy–Wilson v. NOCO
Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001). In order to establish a prima facie case of
retaliation, a plaintiff must show that: (1) she engaged in an activity protected by the ADA; (2) the
employer was aware of this activity; (3) the employer took adverse employment action against
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her; and (4) a causal connection exists between the alleged adverse action and the protected
activity. See Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001).
C. Plaintiff’s Age Discrimination Claim.
The parties do not dispute that McGuire-Welch is a member of a protected class or that
she suffered an adverse employment action by being terminated from her employment. The
dispute instead focuses on whether she was qualified for a position and if the circumstances
surrounding her termination give rise to an inference of discrimination. Defendants argues that
even assuming plaintiff can establish a prima facie case, she was terminated for a legitimate,
nondiscriminatory reason; to wit, her failure to successfully complete tasks in a timely fashion.
(i) Prima Facie Case.
“[P]laintiff’s burden in establishing a prima facie case of unlawful termination under the
McDonnell Douglas framework is de minimis[.]” Levitant v. Hilt N.Y. Waldorf LLC, 2012 WL
414515, at *4 (S.D.N.Y. Feb. 6, 2012). When the adverse action in question is the termination
of a current employee with several years of experience, the qualification requirement is “not
difficult” to meet. Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 92 (2d Cir. 2001)
(an employee of seven years need only show “minimal qualification” for the job); see also Miller
v. National Ass’n of Securities Dealers, Inc., 703 F. Supp. 2d 230, 244 (E.D.N.Y. 2010) (plaintiff’s
nearly two decades of working for defendant evidenced a prima facie case of qualification). As
McGuire-Welch held the position of CSE chairperson for twenty two (22) years prior to her
termination, plaintiff has made a prima facie case of qualification.
To support her contention that the circumstances of her termination give rise to
inference of age discrimination, plaintiff notes that she was replaced by a twenty nine (29) year

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old employee. Further, plaintiff alleges that Perri inquired into when plaintiff might be retiring
without provocation, giving rise to an inference of age discrimination.
Where “an employer has acted with discriminatory intent, direct evidence of that intent
will only rarely be available ... affidavits and depositions must be carefully scrutinized for
circumstantial proof which, if believed, would show discrimination.” Holcomb, 521 F.3d at 137.
Circumstances contributing to an inference of age-based employment discrimination may
include: invidious comments about people in the protected age class; more favorable treatment
of younger employees; criticism of an employee's work performance in age-related degrading
terms; a sequence of events leading to an employee's termination; or the timing of the
termination. See generally Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994)
(collecting cases). Further, the Second Circuit has continuously held that an inference of
discrimination arises, for purposes of ADEA defendants' summary judgment motions, when an
older qualified employee is replaced by someone younger. See D'Cunha v. Genovese/Eckerd
Corp., 479 F.3d 193, 195 (2d Cir. 2007) (an age difference of eight years raises an inference of
discrimination); Gorzynski, 596 F.3d at 107; Francis v. Elmford Sch. Dist., 2008 WL 345489, at
*2 (2d Cir. Feb. 8, 2008).
Considering the facts in the light most favorable to plaintiff, taken as a whole rather
than individually, and mindful that the Second Circuit has “characterized the evidence necessary
to satisfy this [prima facie] burden as minimal and de minimis”, Zimmermann v. Assocs. First
Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001), plaintiff has adequately shown that the
circumstances surrounding her termination give rise to an inference of age discrimination, and
accordingly, that she has established a prima facie case of age discrimination for McDonnell
Douglas purposes.
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(ii) Legitimate, Non-discriminatory Reason.
Under McDonnell Douglas, the burden of production now shifts to defendant to
articulate some legitimate, nondiscriminatory reason for its adverse employment action against
plaintiff. See Burdine, 450 U.S. at 254. As with plaintiff's prima facie case, defendant's “burden
is one of production, not persuasion, and the Court's analysis at this stage can involve no
credibility assessment of the evidence.” Cretella v. Liriano, 633 F. Supp. 2d 54, 72 (S.D.N.Y.
2009) (citation omitted).

Accordingly, at this point, defendant need only present a clear

explanation for plaintiff's termination, not prove that the proffered explanation was the actual
reason for its decision. See Gibbs v. Consol. Edison Co. of N.Y., Inc., 714 F. Supp. 85, 89
(S.D.N.Y.1989).
Defendants assert that McGuire-Welch was terminated as a result of her poor
performance, i.e. her failure to successfully complete tasks in a timely fashion relative to the
NYSED audit and the Corrective Action Plan and to improve those deficient areas noted in her
2010-2011 and 2011-2012 performance evaluations.
Reviewing the supporting affidavits and exhibits, defendants have met their burden of
offering a legitimate, non-discriminatory reason for their adverse action against McGuire-Welch.
Plaintiff’s 2011-2012 Performance Evaluation, dated January 28, 2011 and prepared by Perri’s
predecessor David Williams, does note numerous deficiencies in plaintiff’s work product,
including a need to improve the accuracy of her work, follow the chain of command on a more
consistent basis, improve her planning abilities and communicate to people more efficiently. See
Malowicki Affidavit, Ex. 2. Similar deficiencies were are noted in Perri’s 2011-2012 and 20122013 evaluations completed by Perri. Both the affidavits of Perri and Malowicki sufficiently
document plaintiff’s lack of improvement over time and the deficiencies in plaintiff’s job
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performance as it concerned the NYSED audit and the Corrective Action Plan. Clearly such
performance shortcomings would constitute a legitimate nondiscriminatory reason for plaintiff’s
termination. Therefore, defendants have carried their burden under McDonnell Douglas.
(iii) Pretext for Discrimination.
Following defendant's presentation of a legitimate, nondiscriminatory reason for
plaintiff's termination, the shifted burden of production becomes irrelevant, and the presumption
raised by the prima facie case drops from the case. See Burdine, 450 U.S. at 255. Plaintiff may
still prevail if she can show that defendants’ decision to terminate her was, in fact, the result of
age discrimination. Thus, the Court must now determine whether plaintiff “has raised sufficient
evidence upon which a reasonable jury could conclude by a preponderance of the evidence that
her age was a ‘but for’ cause of [defendants’] decision to fire her. Gorzynski, 596 F.3d at 107.
“In this respect, it is important to consider whether the explanations that [defendant] gave for
[plaintiff's] firing were pretextual.” Id.; see also Holowecki v. Federal Exp. Corp., 2010 WL
2573864, at *1 (2d Cir. June 24, 2010) (“In order to satisfy their burden at the final stage,
plaintiffs must offer evidence that age discrimination was the ‘but-for’ cause of the challenged
actions.”); Alam v. HSBC USA, N.A., 2009 WL 3096293, at *8 (S.D.N.Y. Sept. 28, 2009)
(“[U]nder the ADEA, the discrimination must have been a ‘but-for’ cause of the employer's
decision”).
Pretext “may be demonstrated either by the presentation of additional evidence
showing that the employer's proffered explanation is unworthy of credence, or by reliance on the
evidence comprising the prima facie case, without more.” Heyman v. Queens Vill. Comm. for
Mental Health for Jamaica Cmty. Adolescent, 198 F.3d 68, 72 (2d Cir.1999). A “fact-finder need
not, and indeed should not, evaluate whether a defendant's stated purpose is unwise or
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unreasonable,” but should instead “determin[e] whether the articulated purpose is the actual
purpose for the challenged employment-related action.” DeMarco v. Holy Cross High Sch., 4
F.3d 166, 170–71 (2d Cir. 1993). “The pretext inquiry thus normally focuses upon factual
questions such as whether the asserted reason for the challenged action comports with the
defendant's policies and rules, whether the rule applied to the plaintiff has been applied
uniformly, and whether the putative non-discriminatory purpose was stated only after the
allegation of discrimination.” Id. at 171.
In support of her claim, McGuire-Welch points to several allegations which she believes
evidence the defendants’ proffered non-discriminatory reasons are simply a pretext for
discrimination. These include that: (a) defendants’ reason for terminating has allegedly shifted
from plaintiff’s sustained poor performance to her specific work concerning the Corrective Action
Plan, (b) defendants’ deviated from their own policy in delaying plaintiff’s performance evaluation
until June 2013 and engaging in progressive discipline against plaintiff, (c) plaintiff was excluded
from meetings and discussions of the Corrective Action Plan and did not receive timely training
to complete tasks assigned to her, (d) defendants filled plaintiff’s position with an individual under
the age of 40 with minimal experience, (e) plaintiff claims she only received positive evaluations
prior to Perri becoming her supervisor, (f) it was common knowledge that Perri had a list of older
individuals who she planned to terminate and (g) in 2011, Perri asked plaintiff how much time
she had remaining before she could retire.
The Second Circuit has held that “the court should not consider the record solely in
piecemeal fashion, giving credence to innocent explanations for the individual strands of
evidence[.]” Howley v. Town of Stratford, 217 F.3d 141, 151 (2d Cir. 2000).

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(a) Change in Termination Reasoning.
McGuire-Welch contends that the non-discriminatory reason provided by defendants
for her termination has shifted throughout this litigation, from her allegedly general poor job
performance to her failure to timely complete tasks associated with the Corrective Action Plan,
and as a result, pretext can be inferred.
The Second Circuit has held that “[i]nconsistent or even post-hoc explanations for a
termination decision may suggest discriminatory motive.” Weiss v. JPMorgan Chase & Co., 332
Fed. Appx. 659, 663 (2d Cir. 2009). However, review of the documentary evidence does not
show that defendants’ reason for terminating shifted or was inconsistent. The Termination Form
completed for McGuire-Welch indicated that she was terminated as a result of “poor job
performance”. See McGuire-Welch Affirmation, Ex. 1, at 99. While defendants concede that the
primary reason for plaintiff’s termination was her failure to successfully complete tasks related
to the Corrective Action Plan, a failure which they believed would have jeopardized the School’s
educational certification, such action was the culmination or “final straw” of defendants’
documented concerns relating to plaintiff’s job performance contained in both her 2010-2011 and
2011-2012 performance evaluations. As a result, the termination reason did not shift and was
not otherwise inconsistent to support a conclusion that the termination reason was a pretext for
discrimination.
(b) Deviations from Employer Policy.
Next, McGuire-Welch argues that pretext can be inferred from the fact that defendants
delayed her annual performance evaluation until June 2013 and failed to engage in progressive
discipline. “‘[A] defendant’s deviation from procedural regularity . . . can raise a question as to
the good faith of the process where the deviation may reasonably affect the decision.’” Edwards
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v. Jericho Union Free Sch. Dist., 55 F. Supp. 3d 458, 466 (E.D.N.Y. 2014) (quoting Weinstock,
224 F.3d at 45).
Defendants have submitted the Employer-Employee Relationship policy, which
provides that appropriate discipline is to be based upon the severity of the offense. See
Malowicki Reply Affidavit, Ex. 1. Given defendants’ belief that plaintiff’s performance deficiencies
might have lead to the loss of their state certification, termination certainly might have been
appropriate. Further, plaintiff was expressly informed of the deficiencies in her work product in
both the 2010-2011 and 2011-12 performance evaluations, including the assessments of Mr.
Williams, Ms. Perri’s predecessor, that she needed to be “better prepared”, “check the accuracy
of her work” and that she struggles to communicate her knowledge in a way that is useful and
comprehensive. See Bosman Affirmation, Ex. 1. Such notice evidences that defendants did
engage in a progressive process of informing plaintiff of her deficiencies and giving her an
opportunity to improve. Similarly, the fact that plaintiff did not receive her annual performance
evaluation until June 2013 does not evidence that defendants’ stated reason for termination was
a pretext for discrimination.
(c) Exclusion from NYSED Meetings.
McGuire-Welch asserts that her exclusion from a December 18, 2012 meeting with
NYSED and the purposeful denial of information and training concerning the Corrective Action
Plan evidences that defendant’s reason for termination was a pretext for discrimination.
The Corrective Action Plan itself tasks McGuire-Welch with numerous responsibilities,
largely clerical in nature, including submitting timely IEP referrals to local school districts,
ensuring that BIP progress reports are complete and sent to parents or guardians, ensuring that
minutes are taken to reflect decisions regarding revisions of a BIP or IEP and such minutes are
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sent to parents or guardians. See Malowicki Affidavit, Ex. 3. Defendants have further submitted
emails indicating that on January 25, 2013, a meeting was held with plaintiff and other employees
of the Tilton School that were responsible for tasks pursuant to the Corrective Action Plan to
discuss outstanding items and ensure timely completion. See Malowicki Affidavit, Ex. 4. Plaintiff
has failed to articulate what information or training was withheld that would be required to
successfully complete her tasks under the Corrective Action Plan and has failed to demonstrate
how her absence from the December 2012 meeting evidences discriminatory animus on the part
of defendants.
The relevant inquiry is not whether the performance-based justification for plaintiff's
termination articulated by defendant is accurate or fair, but whether plaintiff can show any
evidence that it was not the actual justification. See DeMarco v. Holy Cross High School, 4 F.3d
at 170–71. In short, “[t]his Court does not sit as a super-personnel department that reexamines
an entity's business decisions.” Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir.1997).
(d) Replacement by Younger Employee.
McGuire-Welch points to the fact that she was replaced by a 29 year old with minimal
experience to support her pretext argument. However, “the mere fact that plaintiff's replacement
was younger, though enough to establish the inference of discrimination prong of plaintiff's prima
facie case, cannot standing alone establish pretext.” Mattera v. JPMorgan Chase Corp., 740 F.
Supp. 2d 561, 574 (S.D.N.Y. 2010).
(e) Prior Evaluations.
McGuire-Welch argues that her annual evaluations prior to Perri becoming her
supervisor were generally positive in order to refute defendant's explanation of her termination
as performance-based. The mere fact that an employee received positive performance
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evaluations and subsequently received negative evaluations is insufficient to establish that the
latter were pretextual. See Orisek v. Am. Inst. of Aeronautics and Astronautics, 938 F. Supp.
185, 188 (S.D.N.Y.1996). Indeed, “[d]emonstration of past positive performance is insufficient
to raise a genuine issue of disputed fact with respect to pretext.” Iverson v. Verizon Comm.,
2009 WL 3334796, at *5 (S.D.N.Y. Oct. 13, 2009). Further, as discussed above, while the 20112012 Performance Evaluation completed by David Williams was in some ways more positive
than later evaluations completed by Perri, it noted many of the same deficiencies cited by Perri.
(f) List of Older Employees.
McGuire-Welch’s statements that Perri had a list of older individuals who she planned
to terminate is conclusory and unsubstantiated by any specific facts in the record. When an
employer accused of discrimination provides convincing evidence explaining its conduct, and the
plaintiff's case rests on conclusory allegations such as these, it is proper for a court to conclude
that there is no genuine issue of material fact and to grant summary judgment for the employer.
See Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995); Goenaga v. March of
Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); Cronin v. Aetna Life Ins. Co., 46 F.3d
196, 203 (2d Cir. 1995).
(g) Question Concerning Plaintiff’s Retirement.
McGuire-Welch lastly contends that shortly after Perri became her supervisor in 2011,
Perri asked plaintiff when she planned on retiring.
The Second Circuit has identified four non-dispositive factors appropriately considered
in deciding what weight to accord isolated remarks suggestive of discriminatory bias: “(1) who
made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the
remark was made in relation to the employment decision at issue; (3) the content of the remark
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(i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context
in which the remark was made (i.e., whether it was related to the decision-making process).”
Henry v. Wyeth Pharmaceuticals, 616 F.3d 134, 149 (2d Cir. 2010).
“[E]ven if plaintiff was asked about h[er] retirement plans, inquiries about retirement
plans do[ ] not necessarily show animosity towards age.” Getler v. Cornell Weill Univ. Med. Coll.
Dep't of Surgery, 2007 WL 38276, at *11 (S.D.N.Y. Jan. 3, 2007). Rather, such stray remarks
are routinely dismissed unless accompanied by further indicia of age-related animus. See Fried
v. LVI Servs., Inc., 500 F. App'x 39, 41 (2d Cir. 2012); Seabrook v. New York City Health and
Hosp. Corp., 2015 WL 273652, at *9 (S.D.N.Y. Jan. 20, 2015).
The question posed to McGuire-Welch concerned her retirement and came from Perri,
plaintiff’s direct supervisor. Such circumstances indicate that the statement could bear some
weight in demonstrating discriminatory bias. However, the question was remote in time in
relation to plaintiff’s termination as it was made almost two years prior to plaintiff’s termination
and did not directly relate to any decision-making process or employment decision.
McGuire- Welch’s burden at the third step of the McDonnell Douglas analysis requires
her to show more than possible age bias; she is required to adduce sufficient evidence to permit
a reasonable jury to find that “but for” defendants' age bias, she would not have been terminated.
See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009). The remark cannot bear that
weight when considered against the documentary evidence supporting defendants’ articulated
non-discriminatory reason for terminating plaintiff. The same conclusion obtains even when the
totality of the evidence that plaintiff points to as evidence of defendants' age bias is considered.
On this record, no reasonable juror could find that defendants’ nondiscriminatory reason for
terminating plaintiff was a pretext for age discrimination and that “but for” plaintiff’s alleged
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discriminatory actions, she would not have been terminated. Thus, there are no genuine issues
of material fact concerning plaintiff’s age discrimination claims. Therefore, defendants’ motion
for summary judgment will be granted with respect to such claims. D. Retaliation Claims.
McGuire-Welch claims that her termination constituted a retaliatory act for her
advocacy on behalf of disabled students, in violation of the ADA, the RA and the NYSHRL.
Defendants contend that plaintiff’s actions or alleged advocacy does not constitute protected
activity.
Retaliation claims are analyzed pursuant to the Title VII principles. See Hicks v.
Baines, 593 F.3d 159, 164 (2d Cir. 2010). Thus, courts evaluate all such claims under the
burden shifting framework set forth in McDonell Douglas as discussed above. See Patane v.
Clark, 508 F.3d 106, 115-17 (2d Cir. 2007). To establish a prima face case of retaliation, a
plaintiff must demonstrate: “(1) participation in a protected activity; (2) that the defendant knew
of the protected activity; (3) an adverse employment action; and (4) a causal connection between
the protected activity and the adverse employment action.” Wright v. City of Syracuse, 2015 WL
1727169, at *2 (2d Cir. April 16, 2015).
“A ‘protected activity’ refers to action taken to protest or oppose statutorily prohibited
discrimination.” Wilmes v. Health, 2005 WL 2107032, at *1 (2d Cir. Aug. 31, 2005). Protected
activities encompass “making complaints to management, writing critical letters to customers,
protesting against discrimination by industry or by society in general, and expressing support of
co-workers who have filed formal charges.” Sumner v. United States Postal Serv., 899 F.2d 203,
209 (2d Cir. 1990). A plaintiff “need not establish that the conduct she opposed was in fact a
violation of [the law],” Bush v. Fordham Univ., 452 F. Supp. 2d 394, 416 (S.D.N.Y. 2006), but she
must demonstrate a “good faith, reasonable belief that the underlying challenged actions of the
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employer violated the law.” Id. “The onus is on the speaker to clarify to the employer that [s]he
is complaining of unfair treatment due to membership in a protected class and that [s]he is not
complaining merely of unfair treatment generally.” Early v. Wyeth Pharmaceuticals, Inc., 603 F.
Supp. 2d 556, 576 (S.D.N.Y. 2009). The reasonableness of a plaintiff’s belief is to be assessed
in light of the totality of the circumstances. See Reed v. A.W. Lawrence & Co., Inc., 95 F.3d
1170, 1178 (2d Cir. 1996).
A plaintiff may establish a causal connection between the protected activity and the
adverse employment action “either (1) directly, through evidence of retaliatory animus directed
against the plaintiff by the defendant; or (2) indirectly, by showing that the protected activity was
followed closely by discriminatory treatment.” Schanfield v. Sojitz Corp. of America, 663 F. Supp.
2d 305, 343 (S.D.N.Y. 2009) (citing Knight v. City of New York, 303 F. Supp. 2d 485, 496
(S.D.N.Y. 2004)). In order for a court to “accept mere temporal proximity between an employer’s
knowledge of protected activity and an adverse employment action as sufficient evidence of
causality to establish a prima facie case,” the temporal proximity must be “very close”. Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).
McGuire-Welch argues that she was retaliated against as a result of her advocacy of
the disabled students at the Tilton School. This included her opposition to Perri failing to notify
school districts of truant students and to investigate incidents such as fights and notify the
appropriate school districts. Plaintiff asserts that her protected activity consisted of continuing
to notify the relevant school districts when she became aware of these incidents. Lastly, plaintiff
contends that she advocated on behalf of a student in June 2013 to be permitted to take the
Regents examination even though Perri did not ultimately permit the student to do so.

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However, McGuire-Welch does not articulate to whom she complained about such
alleged unlawful conduct or that defendants knew of plaintiff’s complaints prior to her termination.
In her affidavit, plaintiff alleges that Perri failed to notify Utica City School District of two incidents
involving their students. However, plaintiff does not state what action she personally took with
respect to the incidents and does not allege that Perri was aware of plaintiff’s activity with the
school district, if any in fact occurred. As a result, such contention cannot raise a genuine issue
of material fact to defeat a summary judgment motion.
McGuire-Welch alleges a similar incident concerning the Rome City School, whereby
she was allegedly reprimanded for inviting a representative from the school district to attend a
meeting concerning one of its students. However, the emails submitted by plaintiff evidence that
Perri wished to have an internal meeting prior to presenting the School’s plan concerning the
student to the school district and was concerned about the lack of communication by plaintiff.
Nothing in the interaction would lead Perri to conclude that plaintiff was engaging in protected
activity or complaining about Perri’s alleged discriminatory practice. Regardless, as such
incident occurred in January 2013, the temporal distance between activity and adverse action
cannot support a finding of a casual connection.
Lastly, with respect to the June 2013 incident concerning a student seeking to take a
regents examination, plaintiff only indicates that she verbally informed a Mary Palmer, apparently
a team leader at the School, of her belief that the student had a right to take the test. There is
no admissible evidence that Perri was informed of plaintiff’s belief or position.
As a result, there are no genuine issues of material fact concerning plaintiff’s retaliation
claims. Therefore, defendants’ motion for summary judgment will be granted with respect to
these claims.
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E. Liability of Individual Defendants.
Lastly, defendants argue that individual defendants may not be held personally liable
for alleged violations of the ADEA, the ADA or the RA. As such, defendants assert that claims
against Perri or Malowicki in their individual and official capacities should be dismissed.
Although the age discrimination and retaliation claims against Perri and Malowicki will
be dismissed, the Court notes that they may not be held personally liable for violations of the
ADEA, the ADA or the RA. Further, plaintiff has failed to raise a genuine issue of material fact
concerning whether Perri or Malowicki consists an “aider and abettor” pursuant to the NYSHRL.
IV. CONCLUSION
The manner in which McGuire-Welch was terminated by defendants was certainly
handled very poorly. Defendants inadvertently sent plaintiff’s performance evaluation to her on
June 18, 2013. On June 21, 2013, at what was purported to be a performance review, plaintiff
was summarily informed that she was terminated effective immediately and escorted out of the
building. McGuire-Welch, a loyal employee of the Tilton School for over twenty three years,
deserved better.

If the termination had been conducted with an appropriate degree of

compassion and understanding, this action may never have been instituted.

However,

“obnoxious bosses and difficult times at work do not, as a matter of law, constitute employment
discrimination.” Mattera, 740 F. Supp. 2d at 576.
Defendants have presented admissible evidence of a legitimate, non-discriminatory
reason for terminating plaintiff. Given the totality of the evidence, McGuire- Welch has failed to
provide sufficient evidence to permit a reasonable jury to find that “but for” defendants' age bias,
she would not have been terminated. Therefore, there are no genuine issues of material fact
which would preclude the granting of defendants’ motion for summary judgment concerning
plaintiff’s age discrimination claims.

Further, given plaintiff’s failure to provide sufficient

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admissible evidence concerning her protected activity and defendants’ knowledge of such
activity, summary judgment will be granted concerning plaintiff’s retaliation claims.
Therefore, it is ORDERED that:
(1) defendants' motion for summary judgment (ECF No. 42) is GRANTED; and
(2) the complaint is DISMISSED.
The Clerk of the Court shall enter judgment and close this case.
IT IS SO ORDERED.

Dated: November 4, 2016
Utica, New York

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