Winslow v. Pulaski Academy and Central School District et al

Filing 37

MEMORANDUM-DECISION and ORDER granting in part and denying in part 34 Motion for Summary Judgment as stated therein. This case will proceed to trial on 6/22/2020 at 10:00am. A final pretrial order will issue.. Signed by Senior Judge Frederick J. Scullin, Jr on 3/20/2020. (bjw, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

SHARI WINSLOW,
Plaintiff,
v.

6:17-CV-83
(FJS/ATB)

PULASKI ACADEMY and CENTRAL
SCHOOL DISTRICT; PULASKI
ACADEMY BOARD OF EDUCATION; and
BRIAN HARTWELL individually and in his official
capacity as Superintendent of Schools,
Defendants.

APPEARANCES

OF COUNSEL

GATTUSO & CIOTOLI, PLLC
The White House
7030 East Genesee Street
Fayetteville, New York 13066
Attorneys for Plaintiff

STEPHEN CIOTOLI, ESQ.

BOND, SCHOENECK & KING, PLLC
350 Linden Oaks
Suite 310
Rochester, New York 14625
Attorneys for Defendants

CURTIS A. JOHNSON, ESQ.
JEFFREY F. ALLEN, ESQ.
JOSEPH S. NACCA, ESQ.

SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Shari Winslow (“Plaintiff”), the former Director of Special Services at Pulaski Academy
and Central School District (“Defendant District”), brought this action based on gender and age
discrimination against Defendant District, its Board of Education (“Defendant Board”), and its

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Superintendent of Schools (“Defendant Hartwell”) seeking compensatory damages, attorney’s
fees, and costs. See generally Dkt. No. 1, Compl. Pending before the Court is Defendants’
motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See
Dkt. No. 34.

II. BACKGROUND
Defendant District hired Plaintiff as the Director of Special Services on July 1, 2005.
See Dkt. No. 1 at ¶ 11. She served in that capacity for ten years, having earned tenure and a
promotion to Director of Special Services, Assessment and Data. See id. In September of
2014, Defendant District hired Defendant Hartwell as Superintendent of Schools. See id. at
¶ 14. Plaintiff contends that, immediately upon taking the position, Defendant Hartwell
subjected her to hostile and offensive conduct, including yelling at her in the workplace in front
of colleagues, demeaning her input, reducing or refusing to allow her to perform her job duties
and responsibilities, and making fundamental changes to the essential elements of her job
without prior notice or good cause. See id. at ¶ 15. Defendant Hartwell claims that he had
learned of complaints and criticisms of Plaintiff’s job performance from numerous sources soon
after he started. See Dkt. No. 34-7, Defs’ Stmt. of Material Facts, at ¶ 5. Plaintiff, to the
contrary, alleges that she received excellent performance evaluations from her superiors
throughout her employment and maintained an “impeccable” record of accomplishments. See
Dkt. No. 1 at ¶ 12.
Plaintiff alleges that Defendant Hartwell’s hostility towards her continued into early
March 2015, when the events leading to this lawsuit culminated. According to Defendants, on
March 2, 2015, Plaintiff assumed the responsibility for personally overseeing a new student

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with special needs. See Dkt. No. 34-7, Defs’ Stmt. of Material Facts, at ¶ 45. 1 During that
school day, the student ran away from Lura M. Sharp Elementary School and was “pursued
through the streets” by school personnel. See id. at ¶¶ 46, 49. The elementary school principal
allegedly emailed Defendant Hartwell that day about the student escaping from school while
under Plaintiff’s supervision. See id. at ¶¶ 47-48.
By happenstance, around 11:00 a.m. on the next day, March 3, 2015, Plaintiff finally
complained about Defendant Hartwell’s allegedly abusive conduct to Sheilla Roth, Defendant
District’s Business Administrator and Title IX Coordinator. See Dkt. No. 1 at ¶ 19. According
to Ms. Roth, Plaintiff stated that she felt Defendant Hartwell was “bullying” her because she
was the “highest paid administrator” in Defendant District. See Dkt. No. 34-2, Roth Decl., at
¶ 6. Ms. Roth reported that conversation to Defendant Hartwell at some point over the next few
days, though she could not recall precisely when. See id. at ¶ 11.
Later that very same day, March 3, 2015, Ms. Roth witnessed Plaintiff “yelling” into the
phone at a parent. See Dkt. No. 34-6, Roth Depo, at 23:15-25:7; see also Dkt. No. 34-1,
Hartwell Decl., at ¶ 41. Defendant Hartwell stated that Ms. Roth informed him via email at
approximately 2:57 p.m. of a “loud conversation” that she overheard with the parent of a
student. See Dkt. No. 34-1 at ¶ 41 (citing Dkt. No. 34-1, Ex. H).
The next day, March 4, 2015, Defendant Hartwell and Ms. Roth allegedly confronted
Plaintiff together in her office. See Dkt. No. 1 at ¶ 21. Defendant Hartwell allegedly threatened
Plaintiff that he would bring § 3020-a charges against her 2; and, Plaintiff claims, he told her to

1

Plaintiff denies that she had sole responsibility to oversee the new student personally. See
Dkt. No. 35-3, Pls Response to Defs’ Stmt. of Material Facts, at ¶¶ 45-50.
2

This statement references N.Y. Educ. L. § 3020-a, which establishes the procedure for
disciplining tenured teachers and administrators.
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“get a lawyer.” See id. at ¶ 22. Additionally, at that time, Defendant Hartwell placed Plaintiff
on “administrative leave”; and Plaintiff alleges that he and Ms. Roth “publicly removed [her]
from [Defendant] District premises in front of students and staff and ordered her to remain off
school property.” See id. at ¶¶ 23-24.
Defendant Hartwell contends that he first learned of Plaintiff’s March 3rd conversation
with Ms. Roth regarding his alleged harassment on March 5, 2015 – the day after he placed
Plaintiff on administrative leave. See Dkt. No. 34-7 at ¶ 106. Plaintiff denies this, alleging that
Ms. Roth told Defendant Hartwell about her complaints either the same day, after she spoke to
Plaintiff, or in the morning before Plaintiff was placed on administrative leave. See Dkt. No.
35-3, Pl’s Response to Defs’ Stmt. of Material Facts, at ¶ 106. Plaintiff thus claims that she was
placed on administrative leave because she complained to Ms. Roth; and Defendants claim that
she was placed on administrative leave to investigate the incident with the student and parent.
On April 6, 2015, approximately one month after being placed on administrative leave,
Plaintiff received a letter from Defendant Hartwell indicating that he was going to make a
proposal to Defendant Board the next day, April 7, 2015, that her position as Director of Special
Services be abolished. See Dkt. No. 1 at ¶ 27 (citing Dkt. No. 1, Ex. C). Defendant Board
subsequently voted to abolish Plaintiff’s position, and her employment was terminated as of
June 30, 2015. See id. at ¶¶ 28, 30. (citing Dkt. No. 1, Ex. D). After abolishing the Director of
Special Services position, Defendant Board created a new position, the Executive Director of
Academic and Instructional Excellence. See Dkt. No. 34-7 at ¶ 33. Due to “budget
constraints,” Defendant District chose to eliminate one administrative position in order to
implement the new one it intended to create. See id. at ¶ 34.

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Plaintiff alleges that she suffered harm including monetary damages, lost wages,
physical and psychological harm, emotional distress, and damage to her professional reputation
as a result of Defendants’ actions. See Dkt. No. 1 at ¶¶ 41, 47, 53, 58, 64, 69, 75, 82, 91. She
filed her complaint in this action on January 25, 2017, alleging ten causes of action. See
generally Dkt. No. 1. After the Court granted in part and denied in part Defendants’ motion to
dismiss, see generally Dkt. No. 18, Memorandum-Decision and Order, the following claims
remain:
(1) Plaintiff’s first cause of action for gender discrimination pursuant to Title VII against
Defendants District and Board;
(2) Plaintiff’s third cause of action for retaliation based on gender pursuant to Title VII
against Defendants District and Board;
(3) Plaintiff’s fifth cause of action for retaliation based on age pursuant to the Age
Discrimination in Employment Act (“ADEA”) against Defendants District and Board;
(4) Plaintiff’s eighth cause of action for gender discrimination and retaliation based on age
and gender in violation of the Equal Protection Clause of the Fourteenth Amendment
and pursuant to 42 U.S.C. § 1983 against all Defendants; and
(5) Plaintiff’s ninth cause of action for deprivation of a protected property interest in
violation of the Due Process Clauses of the Fifth and Fourteenth Amendments and
pursuant to 42 U.S.C. § 1983 against all Defendants.
See Dkt. No. 18 at 22-23.

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III. DISCUSSION
A. Legal standard
Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment.
Under this Rule, the entry of summary judgment is warranted “if the movant shows that 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). When deciding a summary judgment motion, a court must resolve
any ambiguities and draw all reasonable inferences in a light most favorable to the nonmoving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citation omitted).

B. Plaintiff’s Title VII gender discrimination claim
Employment discrimination cases are analyzed using the “McDonnell Douglas test,” a
three-stage, burden shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Under the “McDonnell Douglas test,” “a plaintiff must first establish a prima
facie case of discrimination by showing that: ‘(1) she is a member of a protected class; (2) she is
qualified for her position; (3) she suffered an adverse employment action; and (4) the
circumstances give rise to an inference of discrimination.’” Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015) (quoting Weinstock v. Columbia Univ., 224 F.3d 33,
42 (2d Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817)).
After a plaintiff has established a prima facie case, “a presumption arises that more likely
than not the adverse conduct was based on the consideration of impermissible factors.” Id.
(citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S. Ct. 1089, 67 L. Ed.
2d 207 (1981)). At that point, the burden “shifts to the employer to ‘articulate some legitimate,
nondiscriminatory reason’ for the disparate treatment.” Id. (citing McDonnell Douglas, 411
U.S. at 802, 93 S. Ct. 1817). “If the employer articulates such a reason for its actions, the
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burden shifts back to the plaintiff to prove that the employer’s reason ‘was in fact pretext’ for
discrimination.” Id. (citing McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. 1817; Graham v.
Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000) (“If such a reason is proffered, the burden
shifts back to the plaintiff to prove that discrimination was the real reason for the employment
action”)).

1. Adverse employment action
The parties do not dispute that Plaintiff is a woman; and, thus, she is a member of a
protected class, nor do they dispute that she was qualified for her position with Defendant
District. See Dkt. No. 35, Pl’s Memorandum in Opposition, at 11. Instead, the parties focus on
the third and fourth elements of the McDonnell Douglas test.
Courts have held that a plaintiff suffers an adverse employment action if she endures a
materially adverse change in the terms and conditions of her employment, such as “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,” “a
disproportionally heavy workload,” or “other indices unique to a particular situation.” Vega,
801 F.3d at 85 (quoting [Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.
2000)]; Feingold [v. New York], 366 F.3d [138,] 152-53 [(2d Cir. 2004)]). Further, an adverse
employment action must be “’more disruptive than a mere inconvenience or an alteration of job
responsibilities.’” Vega, 801 F.3d at 85 (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.
2003) (internal quotation marks omitted)).
Defendants concede that Plaintiff suffered an adverse employment action when
Defendant Board eliminated her position. See Dkt. No. 34-8, Defs’ Memorandum in Support, at
19. The parties dispute, however, whether Plaintiff’s placement on administrative leave
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constituted an adverse employment action. Defendants point to Joseph v. Leavitt, 465 F.3d 87,
91 (2d Cir. 2006), to support their contention that placement on administrative leave is not
adverse. See id. The Second Circuit in Joseph held that an employee does not suffer a
materially adverse change in the terms and conditions of employment to constitute an adverse
employment action where the employer merely enforces its preexisting disciplinary policies in a
reasonable manner, including placing an employee on administrative leave pending an internal
investigation or criminal charges. See Joseph v. Leavitt, 465 F.3d 87, 91-92 (2d Cir. 2006).
The Second Circuit clarified, however, that “our rule is not an absolute one, and that a
suspension with pay may, in some circumstances, rise to the level of an adverse employment
action.” Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (citing Joseph, 456 F.3d
at 91).
“The relevant question is therefore whether the employer has simply applied
disciplinary procedures to an employee or if the employer has exceeded those
procedures and thereby changed the terms and conditions of employment. Paid
suspension during an investigation could thus potentially be adverse if the
employer takes actions beyond an employee’s normal exposure to disciplinary
policies.”
Id. (quoting [Joseph, 456 F.3d] at 92 n.1).
Plaintiff contends that, after being placed on administrative leave, Defendants “exhibited
an unusual level of animosity towards her,” including the following: (1) Defendant District
stopped providing Plaintiff benefits to which she was entitled while still employed by the
District (including tuition reimbursement); (2) Defendants discontinued insurance benefits that
Plaintiff had already paid premiums for, causing her to go a month without medication she
needed; (3) Defendants changed her email password so she could no longer access her email
while still an employee; (4) Plaintiff was not allowed to collect personal documents from her
work computer when she requested access; and (5) Plaintiff was not allowed to retrieve her
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graduate work or software that she personally paid for from her work computer. See Dkt. No.
35 at 26-27. The Court finds that these actions against Plaintiff, particularly losing tuition
reimbursement and insurance benefits for one month while remaining an employee, constituted
a diminution in salary and a material loss of benefits. Therefore, the Court finds that placing
Plaintiff on administrative leave constituted an adverse employment action.
Because Plaintiff has alleged two adverse employment actions in that her position was
eliminated and that she was placed on administrative leave that materially altered the conditions
of her employment, the Court finds that Plaintiff has satisfied the third element of her prima
facie discrimination claim. 3

2. Inference of discrimination
The Court must next determine whether the circumstances surrounding Plaintiff’s placement
on administrative leave and Defendant Board’s elimination of her position give rise to an
inference of discrimination. Under the fourth element of the McDonnell Douglas test, a
plaintiff must “’present sufficient evidence for a reasonable jury to conclude, by a
preponderance of the evidence, that “race, color, religion, sex, or national origin was a
motivating factor”’” contributing to the employer’s decision to take the adverse employment
action. Vega, 801 F.3d at 85 (quoting Desert Palace, Inc. v. Costa, 539 U.S. 90, 101, 123 S. Ct.
2148, 156 L. Ed. 2d 84 (2003) (quoting 42 U.S.C. § 2000e-2(m))). “[A]n inference of
discriminatory intent may be derived from a variety of circumstances,” including the following:
“[T]he employer’s continuing, after discharging the plaintiff, to seek applicants
from persons of the plaintiff’s qualifications to fill that position; or the employer’s
criticism of the plaintiff’s performance in ethnically degrading terms; or its
3

Insofar as Plaintiff alleges that she suffered from an “atmosphere” of adverse employment
actions that collectively altered her employment, see Dkt. No. 35 at 12, the Court rejects such
claims.
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invidious comments about others in the employee’s protected group; or the more
favorable treatment of employees not in the protected group; or the sequence of
events leading to the plaintiff’s discharge.”
Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009), superseded by statute on other
grounds, (quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) (internal
citations omitted)) (other citations omitted).
Plaintiff relies on disparate treatment evidence to raise an inference of discrimination; but,
as Defendants correctly note, she must show that “she was ‘similarly situated in all material
respects’ to the individuals with whom she seeks to compare herself.” Graham v. Long Island
R.R., 230 F.3d 34, 39 (2d Cir. 2000) (citing Shumway, 118 F.3d at 64). What constitutes “all
material respects” is based on “(1) whether the plaintiff and those [s]he maintains were
similarly situated were subject to the same workplace standards and (2) whether the conduct for
which the employer imposed discipline was of comparable seriousness.” Id. at 40 (citation
omitted). “Hence, the standard for comparing conduct requires a reasonably close resemblance
of the facts and circumstances of plaintiff’s and comparator’s cases, rather than a showing that
both cases are identical.” Id. (citation omitted).
Plaintiff argues that at least one male administrator, Jay Altobello, engaged in scandalous
and unethical conduct unbefitting of a public school administrator when he had a sexual affair
with a female employee whom he supervised. See Dkt. No. 35 at 15. Plaintiff alleges that the
situation “eventually became common knowledge” among Defendant District’s faculty, staff,
and Board of Education, but his conduct was never investigated. See id. Furthermore, Plaintiff
claims that all Defendant Hartwell did to address the matter was to advise Mr. Altobello to
cease his conduct; and, later, he was permitted to “simply leave [Defendant] District under his
own terms.” See id. (citing Dkt. No. 35-2, Ex. E, Harwell Deposition Excerpts, 75:3-76:25).

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Defendants contend that, at the time of the alleged affair, Defendant District did not have a
policy prohibiting fraternization between employees. See Dkt. No. 34-8 at 21 (citing Dkt. No.
34-7 at ¶¶ 109, 110). Defendants assert that Defendant Hartwell investigated and discussed the
rumors with Mr. Altobello but did not put him on administrative leave because Defendant
District had no basis to take that action. See id. (citing Dkt. No. 34-7 at ¶¶ 112-114).
Defendants argue that rumors about a relationship (which was not prohibited by Defendant
District’s policy) are not of “comparable seriousness” to undisputed events in which “a
student’s safety was endangered and an employee behaved inappropriately with a student’s
parent.” See id. at 22.
Here, the facts surrounding Mr. Altobello’s departure are undisputed. First, although
Plaintiff and Mr. Altobello were both administrators within Defendant District, no party
discusses whether they were subject to the same workplace standards. Second, there is not a
“reasonably close” resemblance of the facts and circumstances of these cases. Mr. Altobello
engaged in a consensual, sexual relationship with a subordinate, whereas Plaintiff allegedly
acted inappropriately with regard to a student escaping school property and a phone call with
the student’s mother. The Court thus finds that these cases are not “reasonably close” or
“comparably serious” to demonstrate Defendant’s discriminatory intent in eliminating
Plaintiff’s position while she was on administrative leave.
Next, Plaintiff argues that she identified other women who were targeted in the same
manner as her because of their age or gender. See Dkt. No. 35 at 16. Plaintiff claims that she
identified Cherise Malboeuf, who was forced to resign and/or denied training due to a possible
hysterectomy, Andrea Lomber, who was denied tenure, and many other women who resigned or
were “on a list to be pushed out of [Defendant] District, most of [whom] were women over the

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age of 40.” See id. (citing Dkt. No. 35-2, Ex. B, Pl’s 50-h T., 118:1-20). The Court finds that
these statements alone, supported only by Plaintiff’s testimony in her 50-h examination, would
not permit a trier of fact to reasonably infer that more likely than not her position as an
administrator was eliminated because of her gender.
Finally, the Court must determine if Plaintiff has alleged “more likely than not” that the
sequence of events leading to her placement on administrative leave and elimination of her
position were due to discrimination because she was a woman. Plaintiff alleges that she made
her complaint about Defendant Hartwell on March 3, 2015; and Defendants proceeded to place
her on administrative leave the next day, March 4, 2015. See Dkt. No. 35 at 15. Additionally,
Plaintiff argues that all of Defendant Hartwell’s conduct about which she complained occurred
throughout a span of six consecutive months during the 2014-2015 school year. See id.
Plaintiff has not pointed to any admissible evidence which, if believed by the trier of
fact, would support a finding that Defendants’ actions were based on gender discrimination.
Thus, for this and all of the above-stated reasons, the Court finds that Plaintiff has not
established the fourth element of her claim, i.e., that the relevant circumstances give rise to an
inference of discrimination; and, accordingly, she has not met her burden of establishing a
prima facie case of gender discrimination. Because Plaintiff has not met this burden, the Court
grants Defendants’ motion for summary judgment with respect to Plaintiff’s first cause of
action.

C. Plaintiff’s Title VII and ADEA retaliation claims
Title VII of the Civil Rights Act of 1964 includes an anti-retaliation provision, making it
unlawful “for an employer to discriminate against any of his employees … because [the
employee] has made a charge, testified, assisted, or participated in any manner in an
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investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). “This
anti-retaliation provision is intended to further the goals of the anti-discrimination provision ‘by
preventing an employer from interfering (through retaliation) with an employee’s efforts to
secure or advance enforcement of [Title VII’s] basic guarantees.’” Hicks v. Baines, 593 F.3d
159, 164 (2d Cir. 2010) (quoting [Burlington Northern & Santa Fe Ry. v.] White, 548 U.S. [53,]
63, 126 S. Ct. 2405 [(2006)]). The ADEA has a similar anti-retaliation provision to protect
employees who complain about their employers’ discriminating on the basis of age. See 29
U.S.C. § 623(d).
Courts evaluate Title VII and ADEA retaliation claims under the three-step burdenshifting analysis set out in McDonnell Douglas. See Hicks, 593 F.3d at 164; Kessler v.
Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 205 (2d Cir. 2006). “First, the plaintiff
must establish a prima facie case of retaliation by showing: ‘”(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.”’” Hicks, 593 F.3d at 164 (quotation); see also Kessler, 461 F.3d at 204. The plaintiff’s
burden in proving a prima facie case is “de minimis.” Hicks, 593 F.3d at 164. It is the court’s
role in evaluating a summary judgment motion “’to determine only whether proffered
admissible evidence would be sufficient to permit a rational finder of fact to infer a retaliatory
motive.’” Id. (quotation omitted) See id.
If the plaintiff sustains this initial burden, “‘a presumption of retaliation arises,’” and the
burden shifts to the defendant. Id. (citation omitted). Once the burden shifts to the defendant, it
must then “‘articulate a legitimate, non-retaliatory reason for the adverse employment action.’”
Id. (citation omitted). If the defendant can do this, then the “‘presumption of retaliation

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dissipates’” and the burden shifts back to the employee to show that the retaliation “‘was a
substantial reason for the adverse employment action.’” Id. (citation omitted). “A plaintiff can
sustain this burden by proving that ‘a retaliatory motive played a part in the adverse
employment actions even if it was not the sole cause[.]’” 4 Id. (quotation).

1. Prima facie case
a. Plaintiff’s engaging in a protected activity
The Second Circuit has held that, under Title VII, “[t]he term ‘protected activity’ refers
to action taken to protest or oppose statutorily prohibited discrimination.” Cruz v. Coach
Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000) (citing 42 U.S.C. § 2000e-3; Wimmer v. Suffolk
County Police Dep’t, 176 F.3d 125, 134-35 (2d Cir.) (discussing scope of statute’s “protected
activity” provision), cert. denied, 528 U.S. 964, 120 S. Ct. 398, 145 L. Ed. 2d 310 (1999)). An
informal complaint of discrimination can constitute a protected activity. See id. “While the law
is clear that opposition to a Title VII violation need not rise to the level of a formal complaint in
order to receive statutory protection, this notion of ‘opposition’ includes activities such as
‘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

4

The Supreme Court, in Gross v. FBL Fin. Servs., Inc., left open the question of whether to
prove an ADEA retaliation claim a plaintiff must show that, but-for her protected activity, she
would not have suffered the alleged adverse employment action, which is the required standard
to prove ADEA disparate treatment claims. See Fried v. LVI Servs., Inc., 500 F. App’x 39, 4142 (2d Cir. 2012) (summary order) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.
Ct. 2343, 174 L. Ed. 2d 119 [(2009)]). Neither the Supreme Court since Gross nor the Second
Circuit has decided whether the “but-for test” or “motivating factor” analysis is appropriate for
ADEA retaliation claims. See id. As discussed infra, under either standard, the Court finds that
Plaintiff has shown sufficient evidence in the record to permit a factfinder to determine that she
was placed on administrative leave and her position was abolished “because of” her complaints
of age discrimination. See id.
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have filed formal charges.’” Id. (quoting Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d
Cir. 1990)). Courts have found that this standard also applies to complaints pursuant to the
ADEA. See, e.g., Delville v. Firmenich Inc., 920 F. Supp. 2d 446, 463-64 (S.D.N.Y. 2013).
However, an employee must clarify to the employer that she is complaining of unfair
treatment due to her membership in a protected class. Although “complaints may be informal,
they cannot be so vague or ‘generalized’ that the employer could not ‘reasonably have
understood [ ] that the plaintiff’s complaint was directed at conduct prohibited by Title VII [or
the ADEA].’” Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 222 (E.D.N.Y. 2014)
(quoting Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 108 (2d Cir. 2011)
(alternation and other citation omitted)) (other citations omitted).
Defendants contend that Plaintiff did not file a complaint with Defendant District; and,
instead, she merely expressed “some concerns” to Ms. Roth, which Ms. Roth characterized as
“venting” from one colleague to another. See Dkt. No. 34-8 at 23. Defendants assert that,
although Plaintiff was “upset” about Defendant Hartwell’s behavior toward her, she did not
attribute the alleged behavior to her age or gender. See id. Furthermore, Plaintiff stated to Ms.
Roth, “[m]aybe I should file a complaint,” which Defendants argue shows that she was not
actually making a complaint at that time. See id.
Plaintiff asserts that she directly told Ms. Roth that she wanted to pursue a complaint for
harassment and discrimination against Defendant Hartwell. See Dkt. No. 35 at 17. In Ms.
Roth’s deposition, she also corroborated that she and Plaintiff were not friends in any capacity;
and, therefore, Plaintiff argues she was clearly not “venting” but making a complaint with the
Title IX Coordinator. See id. at 18-19. Plaintiff also claims that she told Ms. Roth she felt she
was being “targeted and driven out” for discriminatory reasons based on her age and gender and

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to save her salary as she was the highest paid administrator. See id. at 19. Plaintiff asserts that
being the highest paid administrator was commensurate with her experience and seniority,
which was a form of age discrimination. See id. Furthermore, Plaintiff testified in her 50-h
hearing that she wanted to pursue a complaint against Defendant Hartwell for harassment
because she felt that he was “driving [her] out because he [didn’t] want to pay [Plaintiff her]
benefits.” See Dkt. No. 35-2, Ex. B, 74:8-10. Plaintiff also stated that Defendant Hartwell did
not “want to pay for what’s in [her] contract.” See id. at 74:10-11. Thus, because of the
ongoing issues she was facing with Defendant Hartwell, Plaintiff told Ms. Roth that she wanted
to file a complaint. See id.
Plaintiff, who was 53-years-old at the time of these events, had been employed in public
education for twenty-one years and had held her position as Director of Special Services at
Defendant District for ten years. See Dkt. No. 1 at ¶¶ 10-11. Her salary was commensurate
with her experience and seniority. See Dkt. No. 35 at ¶ 19. These facts, in addition to
Plaintiff’s and Ms. Roth’s own statements about their discussion, show that Ms. Roth
reasonably could have inferred that Plaintiff’s complaint about “bullying” because she was the
“highest paid administrator” was an informal complaint about unlawful age discrimination.
Thus, the Court finds that Plaintiff engaged in a protected activity under the ADEA when she
informally complained to Ms. Roth on March 3, 2015, and further holds that Plaintiff has
alleged the first element of her prima facie case for retaliation under the ADEA.
There is no evidence, however, that Plaintiff complained of gender discrimination to Ms.
Roth. Neither Plaintiff nor Ms. Roth testified that Plaintiff made such complaints. Therefore,
the Court finds that Plaintiff has not alleged the first element of her prima facie case for
retaliation under Title VII. Because Plaintiff has not established a prima facie case for

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retaliation under Title VII, the Court grants Defendants’ motion for summary judgment with
respect to Plaintiff’s third cause of action.

b. Remaining elements of Plaintiff’s prima facie case for retaliation under
the ADEA
The Court must next consider whether Defendants knew about Plaintiff’s informal
complaint, whether Plaintiff suffered an adverse employment action, and whether there was a
causal connection between Plaintiff’s complaint and Defendants’ actions. First, Defendant
Hartwell was clearly aware of Plaintiff’s informal complaint to Ms. Roth because Ms. Roth
admits she told him about it. See Dkt. No. 34-2 at ¶ 11; see also Dkt. No. 35-2, Ex. D, Roth
Testimony, at 28:5-17. One court in this District has found that a defendant-school district is
“aware” of a complaint if it was made directly to the superintendent. See Brooks v. FondaFultonville Cent. Sch. Dist., 938 F. Supp. 1094, 1106 (N.D.N.Y. 1996). Thus, since Plaintiff
alleged that Defendant Hartwell, as the superintendent, had direct knowledge of the complaint,
she sufficiently alleged that Defendants District and Board were aware of her informal
complaint. Therefore, the Court finds that Plaintiff has established the second element of her
prima facie case for retaliation.
Second, the parties concede that eliminating Plaintiff’s position constitutes an adverse
employment action to satisfy the third element of Plaintiff’s prima facie case. See generally
Dkt. No. 34-8 at 25-26. As discussed supra, Plaintiff’s placement on administrative leave in
this situation was also adverse because Defendant District allegedly acted differently toward
Plaintiff as compared to others who had been disciplined. See Brown, 673 F.3d at 150.
Because Plaintiff suffered these adverse employment actions, the Court finds that she has
satisfied the third element of her prima facie case for retaliation.

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Finally, the Court must consider whether Plaintiff asserted a causal connection between
the adverse actions she suffered and her informal complaint to Ms. Roth. A brief look at the
facts in Plaintiff’s complaint shows that she was placed on administrative leave the day after she
complained to Ms. Roth. See Dkt. No. 1 at ¶¶ 19, 21-24. Furthermore, Plaintiff was not
informed that her position was to be eliminated until April 6, 2015 – the day before the Board of
Education voted on it – or that her position was actually eliminated until April 27, 2015, even
though Defendant District had apparently known about the fate of her position as early as fall of
2014. See Dkt. No. 34-1, Ex. C, at 16; Dkt. No. 34-8 at 26. Based on these facts, the Court
finds that Plaintiff has satisfied the fourth element of her prima facie case for retaliation.
In sum, the Court finds that Plaintiff has established all the elements of her prima facie
case for retaliation based on her age pursuant to the ADEA. Thus, the Court must next
determine whether Defendants District and Board had legitimate, non-discriminatory reasons
for eliminating Plaintiff’s position and whether Plaintiff can show that those reasons were mere
pretext.

2. Defendants’ legitimate, non-retaliatory reason for taking adverse employment
actions against Plaintiff
Because Plaintiff has established a prima facie case for retaliation, the burden shifts to
Defendants to articulate some legitimate, non-retaliatory reason for taking adverse employment
actions against her. The Court analyzes Defendants’ proffered explanation under the same
standard as Title VII or ADEA discrimination claims. In those cases, the Supreme Court has
held, “The defendant need not persuade the court that it was actually motivated by the proffered
reasons. … It is sufficient if the defendant’s evidence raises a genuine issue of fact as to
whether it [retaliated] against the plaintiff.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 254 (1981) (internal citation and footnote omitted). According to the Supreme Court, “[t]o
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accomplish this, the defendant must clearly set forth, through the introduction of admissible
evidence, the reasons for the [employment decision]. . . . The explanation provided must be
legally sufficient to justify a judgment for the defendant.” Id. at 255 (internal footnotes
omitted). The Court also noted that “[a]n articulation not admitted into evidence will not
suffice. Thus, the defendant cannot meet its burden merely through an answer to the complaint
or by argument of counsel.” Id. at 255 n.9.
Defendants first argue that Plaintiff was placed on administrative leave for legitimate
reasons in that Defendant District received reports from its employees, as well as the parent of a
special needs student, that Plaintiff had not adequately supervised a student under her
supervision and then yelled at the student’s parent during a phone call. See Dkt. No. 34-8 at 27
(citing Dkt. No. 34-7 at ¶¶ 48-49, 56, 60). Defendants assert that endangering the welfare of a
student is a legitimate reason for placing a school employee on administrative leave. See id.
(citing Perez-Dickson v. Bridgeport Bd. of Educ., No. 3:13-CV-198 (WWE), 2016 WL 236206
(D. Conn. Jan. 19, 2016)). Defendants further argue that, on March 4, 2015, Ms. Roth and
Defendant Hartwell met with Plaintiff and informed her that she was being placed on
administrative leave because of the need to investigate the situation with the student and parent.
See id. at 27-28 (citing Dkt. No. 34-7 at ¶¶ 68-73). Thus, Defendants argue, Defendant
Hartwell’s decision to place Plaintiff on administrative leave had nothing to do with Plaintiff’s
age or gender, nor was it in retaliation for her alleged complaint. See id. at 28. Defendants also
argue that Plaintiff’s position was eliminated because of administrative restructuring and
budgetary needs. See id. For all these reasons, the Court finds that Defendants have offered
legitimate, non-retaliatory reasons for placing Plaintiff on administrative leave and eliminating
her position.

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3. Pretext
Because Defendants have met their burden to proffer a legitimate, non-retaliatory reason for
their adverse employment actions against Plaintiff, the burden shifts once again to Plaintiff to
prove that a retaliatory motive played a part in the adverse employment action, even if it was
not the sole cause. Essentially, Plaintiff must show that Defendants’ non-retaliatory reasoning
was pretext.
Plaintiff lists the following eight reasons to support her contention that Defendants’ conduct
was pretextual: (1) close temporal proximity between her complaint and her placement on
administrative leave, (2) the incident involving her phone conversation with a parent was an
“excuse” to remove her as it was the lone black mark on her “spotless professional record”; (3)
despite claiming “budgetary reductions” for abolishing her position, Defendant District paid
more money to new and existing employees; (4) the nature and amount of special education
work for Defendant District did not change during the 2014-2015 year or after her position was
abolished; (5) Defendant District created a new position for which she was qualified but failed
to inform her of the new administrative job opening when it became available; (6) Plaintiff was
the only administrative employee to have her position abolished during the 2014-2015 school
year; (7) Defendant Hartwell targeted and harassed her throughout the entire school year after
he joined Defendant District; and (8) after Defendants placed her on leave they exhibited an
unusual level of animosity towards her. See Dkt. No. 35 at 22-27.
Plaintiff provides evidence to support each of these contentions. For example, although
Defendants claim that Plaintiff’s position was abolished due to “budgetary reductions,” Plaintiff
alleges that Defendant District ended up spending more money than it was paying to cover her
salary. According to Plaintiff, at the time she was terminated, her salary was around $86,000,
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and the starting salary for the new administrative position Defendant District created was
around $88,000. See Dkt. No. 35 at 23 (citing Dkt. No. 35-2, Ex. E at 69:21-25). Further,
Defendant Hartwell acknowledged in his testimony that, in essence, Defendant District ended
up trading one administrative position for another. See id. (citing Dkt. No. 35-2, Ex. E at 25:811). Additionally, Plaintiff asserts, to continue to meet all of the responsibilities of her position
that remained after it was abolished, Defendant District created stipend positions to fill those
needs. See id. Some of those stipends, Plaintiff argues, paid employees an extra $5,000. See id.
(citing Dkt. No. 35-2, Ex. E at 73:20-25).
Furthermore, Plaintiff asserts that Defendants failed to inform her of the new administrative
job opening when it became available; and, when Defendant Hartwell was asked if he believed
Plaintiff met the qualifications for that position, he responded “absolutely not.” See id. at 25
(citing Dkt. No. 35-2, Ex. E, Hartwell Depo, at 68:3-69:1). Plaintiff points to Defendant
Hartwell’s testimony that she lacked interpersonal and communication skills and leadership
abilities; yet, after she was terminated from Defendant District, Plaintiff was subsequently hired
as the Elementary Principal and Director of Special Education for the Poland Central School
District. See id. at 25-26 (citing Dkt. No. 35-2, Ex. E at 68:3-69:1). Plaintiff also submitted
exhibits showing a clear degree of overlap and similarities in terms of the skills and experience
required between her position as Director of Special Services and the newly created position of
the Executive Director of Academic and Instructional Excellence. See id. at 25-26 (citing Dkt.
No. 35-2, Exs. F, G, H 5).

5

Defendants contend that these exhibits are inadmissible and that the Court cannot consider
them because Attorney Ciotoli does not possess the personal knowledge necessary to testify to
the nature, substance, meaning, value, or authenticity of these exhibits. See Dkt. No. 36, Defs’
Reply, at 4. The Court rejects this objection as attorneys regularly submit affirmations that
merely list the documents that are included in their submissions
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The Court finds that Plaintiff has adduced evidence showing that Defendants’ reasons for
placing her on administrative leave and eliminating her position are pretextual, thus creating a
clear dispute of fact; and, for these reasons, the Court denies Defendants’ motion for summary
judgment with respect to Plaintiff’s ADEA retaliation claim.

D. Plaintiff’s claim pursuant to the Equal Protection Clause
“[O]nce the color of state law requirement is met, except for the issue of individual liability,
an ‘equal protection claim parallels [a plaintiff’s] Title VII claim.’” Vega, 801 F.3d at 82
(quoting Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004)). For the reasons that the
Court grants Defendants’ motion for summary judgment with respect to Plaintiff’s Title VII
gender-based discrimination and retaliation claims, the Court further grants Defendants’ motion
for summary judgment with respect to Plaintiff’s gender-based Equal Protection claim as they
apply the same standard. 6

E. Plaintiff’s claim pursuant to the Due Process Clause
The parties agree that Plaintiff was tenured pursuant to the New York Education Law, but
they dispute whether she was entitled to a pre-termination hearing. In the analogous case of
Elmendorf v. Howell, the plaintiff claimed that the defendants violated her due process rights by
failing to conduct a pre-termination hearing when they abolished her position as Building
Principal and created the position of Assistant Superintendent. See Elmendorf v. Howell, 962 F.
Supp. 326, 329, 331-32 (N.D.N.Y. 1997) (McAvoy, J.). The Elmendorf court noted that,
“[a]lthough the Constitution protects property interests, it does not create them. Rather, ‘they

6

There is also no evidence in the record to support a claim of Equal Protection based on age;
and, therefore, the Court dismisses Plaintiff’s Equal Protection claim to the extent this claim is
based on Plaintiff’s age.
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are created and their dimensions are defined by existing rules or understandings that stem from
an independent source such as state law. …’” Id. at 332 (quoting Bd. of Regents v. Roth, 408
U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed.2d 548 (1972)). The parties did not dispute that
“’[t]enure, once conferred, is a property interest protected by the Due Process Clauses of the
Fifth and Fourteenth Amendments,’” and that the plaintiff was tenured pursuant to the New
York Educational Law. Id. (quoting Blum v. Schlegel, 18 F.3d 1005, 1014 (2d Cir. 1994)
(citations omitted)).
The court further noted that, after reviewing the relevant case law, it was “clear that under
New York law, when a position held by a tenured individual is abolished no pre-termination
hearing is required[.]” Id. (citing Mitchell v. Bd. of Education of Great Neck Public Schools, 40
N.Y.2d 904, 389 N.Y.S.2d 354, 355, 357 N.E.2d 1008, 1009 (1976); Beers v. Nyquist, 72 Misc.
2d 210, 211, 338 N.Y.S.2d 745, 746 (Sup. Ct. Albany County 1972)). However, the court held
that it “cannot find as a matter of law that plaintiff was not entitled to a pre-termination hearing”
because “when there is a question of fact as to the similarity of the subsequently created
position, the Court should not dispose of a concomitant due process claim on summary
judgment.” Id. (citing DeSimone v. Bd. of Educ., South Huntington Union Free Sch. Dist., 604
F. Supp. 1180, 1184 (E.D.N.Y. 1985)).
Quoting DeSimone, the court noted that a plaintiff can prove that she was deprived of
property without due process if she shows either “‘(1) that at the time of the plaintiff[’]s
discharge there existed genuine factual issues bearing upon the similarity or dissimilarity of the
positions; or (2) that at the time of plaintiff’s discharge it could be said as a matter of law that
the positions were similar within the meaning of Education Law § 2510(1).’” Id. (quoting
[DeSimone,] 604 F. Supp. at 1184). Furthermore, “‘[d]efendant can prove that there was no

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deprivation of property without due process if it can show that at the time of the discharge it
could be said as a matter of law that the positions were not similar within the meaning of
Education law § 2510(1).’” Id. (quoting [DeSimone,] 604 F. Supp. at 1184). Thus, the court
denied the parties’ motions for summary judgment because there was a material factual issue
about the similarity of the Building Principal and Assistant Superintendent positions. See id.
In this case, the undisputed facts show that, after abolishing Plaintiff’s position of Director
of Student Services, Defendant District created the position Executive Director of Academic
and Instructional Excellence. Plaintiff has submitted Exhibits F, G, and H, which include the
job descriptions and qualifications for both positions. See Dkt. No. 35-2, Exs. F, G, H. Upon
review of these exhibits, the Court finds that a question of fact exists regarding the similarity of
these positions. If a factfinder found that these positions were reasonably similar or that
Plaintiff had the appropriate qualifications for the subsequently created position, then the
factfinder would have to find that Plaintiff was deprived of her due process rights when
Defendants terminated her without a pre-termination hearing. Thus, the Court denies
Defendants’ motion for summary judgment with regard to Plaintiff’s due process claim. 7

IV. CONCLUSION
After carefully considering the entire file in this matter, the parties’ submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants’ motion for summary judgment, see Dkt. No. 34, is
GRANTED IN PART and DENIED IN PART; and the Court further

7

However, insofar as Plaintiff alleges this claim against Defendant Hartwell in his official
capacity, the Court dismisses that claim as redundant.
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ORDERS that Defendants’ motion for summary judgment with respect to Plaintiff’s
first and third causes of action for discrimination and retaliation based on gender pursuant to
Title VII against Defendants District and Board is GRANTED; and the Court further
ORDERS that Defendants’ motion for summary judgment with respect to Plaintiff’s
eighth cause of action for violation of the Equal Protection Clause, brought pursuant to 42
U.S.C. § 1983, against all Defendants is GRANTED; and the Court further
ORDERS that Defendants’ motion for summary judgment with respect to Plaintiff’s
fifth cause of action for unlawful retaliation based on age pursuant to the ADEA against
Defendants District and Board is DENIED; and the Court further
ORDERS that Defendants’ motion for summary judgment with respect to Plaintiff’s
ninth cause of action for violation of the Due Process Clauses of the Fifth and Fourteenth
Amendments based on a deprivation of Plaintiff’s property interests, brought pursuant to 42
U.S.C. § 1983, against all Defendants is DENIED; and the Court further
ORDERS that the trial of this action shall commence at 10:00 a.m. on June 22, 2020,
in Syracuse, New York. The Court will issue a separate Final Pretrial Scheduling Order, setting
forth the deadlines for filing pretrial submissions, including motions in limine, at a later date.

IT IS SO ORDERED.

Dated: March 20, 2020
Syracuse, New York

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