Grant v. Rochester City School District et al
-CLERK TO FOLLOW UP-ORDER granting 33 Motion for Summary Judgment. Signed by Hon. Michael A. Telesca on June 18, 2013. (MES)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARILYNN PATTERSON GRANT,
DECISION AND ORDER
ROCHESTER CITY SCHOOL DISTRICT and
SUPERINTENDENT OF SCHOOLS, JEAN-CLAUDE
Plaintiff, Marilynn Patterson Grant (“Plaintiff”), brings this
action pursuant to Title VII of the Civil Rights Act of 1964,
("Title VII"), 42 U.S.C. § 2000(e) et seq.; the Age Discrimination
in Employment Act (the "ADEA"), 29 U.S.C. §§ 621 et seq.; 42 U.S.C.
§ 1981 (“§ 1981"); 42 U.S.C. § 1983 (“§ 1983"); and the New York
State Human Rights Law (“NYSHRL”) against her former employer, the
Rochester City School District (“RCSD”) and Superintendent of
Defendants move for summary judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure (“Rule 56"),
contending that Plaintiff has not produced sufficient evidence of
a denial of her Constitutional rights or unlawful discrimination or
retaliation such that a reasonable jury could find in her favor.
Plaintiff opposes the motion, contending that there are material
issues of fact which preclude summary judgment.
For the reasons
discussed herein, the Court grants Defendants’ motion for summary
judgment on all of Plaintiff’s causes of action.
including the parties’ submissions pursuant to Local Rule 56(a),
and are not in dispute unless otherwise noted. (Docket Nos. 33-5,
Plaintiff, an African American female, was born on October 26,
1952 and she was over 40 years of age at all relevant times.
Superintendent Brizard was also over 40 years of age at all
Prior to her termination in 2010, Plaintiff was employed by
the RCSD for 35 years.
She began her career with RCSD as a teacher
at Franklin High School in 1975.
Thereafter, Plaintiff worked in
the administrative roles of House Coordinator, Principal, Social
In June 2008, Superintendent Brizard offered Plaintiff
the newly created position of Deputy Superintendent for Teaching
and Learning position.
Brizard did not seek other candidates for
the position, but offered the position directly to Plaintiff, who
was 56 years old at the time of her appointment.
Plaintiff earned an annual salary of $160,000 in the position
of Deputy Superintendent for Teaching and Learning, which was a
higher salary than every other employee except the Superintendent
and the Deputy Superintendent for Operations.
position was subject to the Rules and Regulations of the Board of
Education Relating to the Superintendent’s Employee Group.
Although she had many years of experience with RCSD, the
Deputy Superintendent for Teaching and Learning position came with
greater responsibility than any other previously held position. As
Deputy Superintendent for Teaching and Learning, Plaintiff was
responsible for curriculum, instruction, and assessment for the
district-wide, which included approximately 35,000 students.
was second in command to the Superintendent, oversaw a budget of
approximately sixty million dollars, and supervised approximately
thirty direct reports in a department with approximately three
Plaintiff reported directly to Brizard, who determined the
expectations for her role as Deputy Superintendent for Teaching and
Learning and was the sole evaluator of her performance while she
held that position.
Throughout her employment in that position, Plaintiff and
Brizard had conflicts and differences of opinion with respect to
how work should be performed at the District. Deposition Transcript
of Marilynn Patterson Grant(hereinafter "Patterson Grant Dep.") at
Plaintiff provides many reasons why she believed that Brizard
dissatisfied with Plaintiff’s performance as Deputy Superintendent
Plaintiff’s work in a negative mid-year evaluation on June 23,
Exhibit E to Defendants' Motion for Summary Judgment.
Plaintiff provided a written response and rebuttal to Brizard’s
On December 8, 2009, Brizard gave another negative review of
Plaintiff’s performance in his end of year evaluation, which stated
in the concluding paragraph, “Marilynn, during our August 2008
retreat with the Broad Superintendents it was clear that you could
not move from the script created by and for you. It was then that
I became gravely concerned about your readiness for this work. You
seem to have had difficulty making the important connections
between district reform and the work of a Teaching and Learning
Division. It is with a bit of distress that I must say that you did
not meet my expectations for the 2008-2009 school year.” Exhibit G
to Defendants' Motion for Summary Judgment.
On January 22, 2010, Superintendent Brizard met with Plaintiff
and informed her of his decision to terminate her employment. He
gave her a letter dated January 22, 2010 and orally explained to
her that she had the options of resigning, retiring, or having her
employment terminated without cause as defined in the Rules and
Superintendent’s Employee Group, which would have entitled her to
receive six months’ severance pay. Exhibit H to Defendants' Motion
for Summary Judgment.
Plaintiff responded by letter dated January 25, 2010, and
advised Superintendent Brizard that she chose neither to resign nor
to retire, and requested that, “if you choose to discontinue my
employment, I be [sic] provided all I am entitled to under Article
21 of the Rules and Regulations of the Board of Education Relating
to the Superintendent’s Employee Group (Abolition or Discontinuance
of Service; Severance Benefits).”
Exhibit I to Defendants' Motion
for Summary Judgment.
Thereafter, by letter dated January 26, 2010, Brizard notified
Plaintiff that, effective January 26, 2010, her service as Deputy
Superintendent for Teaching and Learning and her employment with
RCSD “shall be discontinued without cause, pursuant to Section 21
of the Rules and Regulations of the Board of Education relating to
the Superintendent’s Employees Group.”
Exhibit J to Defendants'
Motion for Summary Judgment.
Brizard then offered to fill the vacancy in the position to
Andrea Lewis, a female in her fifties, who ultimately declined the
Brizard then hired Elizabeth Mascitti-Miller, a female in
her fifties to fill the position.
On January 25, 2010, Plaintiff filed a charge with the Equal
discrimination and retaliation.
Plaintiff filed an additional
charge of retaliation with the EEOC on April 20, 2010.
Although Plaintiff never made an internal complaint at RCSD,
Patterson Grant Dep. at 125-26, Plaintiff alleges that she was
discriminated against and terminated based upon her age. Plaintiff
also alleges that RCSD and Brizard retaliated against her, after
her employment was terminated, for filing her charge with the EEOC.
Plaintiff alleges that Brizard made four separate comments
that show his discriminatory intent based upon age.
November 2009, at which he stated that “in teaching age matters”,
during his discussion of the Teach for America program. Patterson
Grant Dep. at 108-12. The second comment, which Brizard directed to
members of his upper-level management cabinet in 2009, including
Plaintiff, was “you are all old.”
Brizard made the comment in
reference to his surprise at his older colleagues’ enthusiasm while
attending a Broadway show. Patterson Grant Dep. at 112-14. The
third comment, which Brizard made during a cabinet meeting in
January 2010, was “you remember one of the charges made against me
was keeping too many of the old guard.” Patterson Grant Dep. at
115-17. Neither party disputes that the remark was originally made
by a School Board Member in critique of Brizard’s hiring of cabinet
members from a previous administration, but Plaintiff now alleges
that the remark is related to age.
The fourth comment, which
Brizard made during a principals’ meeting on January 19, 2010, was
“people most affected by mayoral control will be Central Office
people. The effort will be to get rid of a lot of RIP’s. You know
what RIP’s are? Retired in place.” Patterson Grant Dep. at 117-18.
Neither party disputes that Brizard made the remark regarding
mayoral control, but Plaintiff alleges that the remark is related
“degrading [Plaintiff’s] professional experience...in retaliation
for [her] having engaged in protected activity by filing a formal
Charge of unlawful discrimination and retaliation with the EEOC.”
Declaration of Marilynn Patterson Grant, Docket No. 36-3 at ¶ 34.
The statements come from an interview of Brizard by a local
subsequent article that ran on January 28, 2010, Brizard indicated
that he was informed of the complaint by a reporter during a
telephone interview, that he denied the charges, but that he
acknowledged firing Plaintiff for “concerns with her performance.”
Defendants dispute that Brizard’s statements to the reporter were
deliberate and retaliatory.
performance” attributed to Brizard in the article rendered it
impossible for her to obtain comparable and prospective employment.
For example, Plaintiff asserts that she applied for two different
superintendent positions, and although she was informed that she
Plaintiff testified at her deposition that she was told by two
headhunters in charge of search firms that “the situation with the
District served as an impediment.” Patterson Grant Dep. at 105-06.
However, Plaintiff also testified that she was not certain what the
recruiters meant by the “situation.” Patterson Grant Dep. at 10607.
Plaintiff filed this action on June 7, 2010 and filed motions
to amend the Complaint on November 4, 2010 and December 1, 2010.
(Docket Nos. 9, 14).
Defendants moved to dismiss the Second
Amended Complaint. (Docket Nos. 20). On July 27, 2011, this Court
granted in part and denied in part Defendants’ motion to dismiss
and the following causes of action remain: 1)discrimination in
violation of the ADEA against RCSD, 2)retaliation in violation of
Title VII against RCSD, 3)retaliation under the NYSHRL against
Superintendent Brizard, 4)retaliation under § 1981 against all
5)discrimination based on age in violation of her
Equal Protection rights pursuant to 42 U.S.C. § 1983 against all
Defendants, and 6)a Monell1 liability claim against RCSD pursuant
to § 1983.
Defendant’s Motion for Summary Judgment
Pursuant to Rule 56, a court shall grant a motion for summary
judgment if the moving party demonstrates “that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” See Fed.R.Civ.P. 56(a).
movant has met this burden, the burden shifts to the nonmovant who
must “come forward with evidence to allow a reasonable jury to find
in his favor” on each of the elements of his prima facie case. See
Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir.2001); Celotex
Corp. v. Catrett, 477 U.S. 317, 325-27 (1986).
The court must draw
materials such as affidavits, exhibits, and depositions in the
light most favorable to the nonmoving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Celotex Corp., 477
U.S. at 322. However, a nonmovant benefits from such factual
inferences “only if there is a ‘genuine’ dispute as to those
facts.” See Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776
Monell v. Department of Social Services of City of New York, 436
U.S. 658, 694 (1978) (holding that local governments are subject to
liability for constitutional deprivations which are the result of an
official policy or custom).
Plaintiff has failed to establish a prima facie case of
discrimination or retaliation.
Plaintiff alleges that she was discriminated against on the
basis of her age, and retaliated against for engaging in protected
Claims of employment discrimination and retaliation are
analyzed under the well-recognized burden shifting framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and
later refined in Texas Dep’t of Community Affairs v. Burdine, 450
U.S. 248 (1981) and St. Mary’s Honor Center v. Hicks, 509 U.S. 502
Plaintiff bears the burden proving a prima facie case of
discrimination. If Plaintiff succeeds in stating a prima facie
case, the burden of production shifts to the defendants to state a
legitimate, non-discriminatory reason for the employment action.
Should the employer meet that burden, the burden of production then
shifts back to Plaintiff to show that the reasons proffered by the
employer were not the true reasons for the adverse employment
discrimination was the real reason.
See Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); St. Mary’s Honor
Center v. Hicks, 509 U.S. 502-06 (1993).
In the instant case, for the reasons set forth below, I find
that Plaintiff has failed to state a prima facie case of age
discrimination or unlawful retaliation.
Accordingly, I grant
Defendants’ motion for summary judgment with respect to Plaintiff’s
ADEA discrimination claim, Plaintiff’s retaliation claim under
Title VII, Plaintiff’s retaliation claim under the NYSHRL, and
Plaintiff’s retaliation claim under § 1981.
Plaintiff’s Age Discrimination Claim
To establish a prima facie case of age discrimination under
the ADEA, Plaintiff must demonstrate that (1) she was within the
satisfactory, (3) she was subjected to an adverse employment
action, and (4) the adverse employment action occurred under
circumstances giving rise to an inference of [age] discrimination.
See Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir.), cert. denied, 474
U.S. 829 (1985); Szarzynski v. Roche Laboratories, Inc., 2010 WL
811445 (W.D.N.Y. Mar. 1, 2010); Schnabel v. Abramson, 232 F.3d 83,
87 (2d Cir.2000); see also McDonnell Douglas, 411 U.S. at 802
(stating the prima facie case more generally). Although the Second
Circuit Court of Appeals has stated that "the burden that must be
met by an employment discrimination plaintiff to survive a summary
judgment motion at the prima facie stage is de minimis," Tomka v.
Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995), it has also noted
that "[a] jury cannot infer discrimination from thin air." Norton
v. Sams Club, 145 F.3d 114 (2nd Cir.), cert. denied 119 S.Ct. 511
Here, while it is undisputed that Plaintiff is within the
protected age group, she has not and cannot establish a prima facie
case of age discrimination because she cannot demonstrate that she
performed her job duties satisfactorily. See Bailey v. Frederick
Goldman, Inc., 2006 WL 738435, at *4 (S.D.N.Y.2006).
plaintiff’s deteriorating performance.” Id. Moreover, the court
noted that in evaluating employee performance under this second
expectations of performance, and may rely on legitimate supervisory
evaluations to do so.” Id.
Here, Plaintiff’s deficient performance is well-documented.
Plaintiff was given a negative mid-year report with a litany of
problems that Brizard found in the performance of her job.
also given a negative end of the year evaluation where she was told
specifically that she did not meet Brizard’s expectations.
This Court specifically notes that the entire record is devoid
of any evidence that the criticisms found in these evaluations were
motivated by any discriminatory animus.
satisfactory, she cannot establish an inference that her discharge
was related to her age, as the record is devoid of any facts which
Plaintiff alleges that Superintendent Brizard made statements which
show his discriminatory animus towards people over the age of 40,
but I find that none of the remarks alleged, either individually or
collectively, evinces a discriminatory animus.
While an employer's remarks may give rise to an inference of
discrimination, Gregory v. Daly, 243 F.3d 687, 697 (2d Cir.2001),
I find that the remarks described by Plaintiff, at best, constitute
discrimination. Danzer v. Norden Systems, Inc., 151 F.3d 50, 56 (2d
Cir. 1998); Ikewood v. Xerox Corp., 2011 WL 147896 at *7 and *8
It is well resolved that “isolated derogatory remarks
discrimination”. Gonzalez v. Allied Barton Security Servs., 2010 WL
3766964 (S.D.N.Y.) (citing Danzer v. Norden Sys., 151 F. 3d at 56);
Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d
cannot prove a claim of employment discrimination.”); see Falso v.
(W.D.N.Y)(“one-time remarks are generally insufficient to establish
an inference of discrimination”).
Additionally, in cases like this one, where the same person
both hired and fired the complainant, “there is a strong inference
that discrimination was not a motivating factor in the employment
decision.” Carlton v. Mystic Transportation, 202 F. 3d 129 (2nd
Cir. 2000); see Jetter v. Knothe Corp., 324 F.3d 73, 76 (2d Cir.
2003); Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir.
Furthermore, any inference of age discrimination is undercut
where, as here, a plaintiff is over 40 years old when she is hired.
(S.D.N.Y.2006); see Piasecki v. Daughters of Jacob Nursing Home,
[employer] hired plaintiff at age 70, when he was well within the
protected class, suggests a non-discriminatory intent”).
Superintendent for Teaching and Learning by Superintendent Brizard
when she was 56 years old, and thus over 40 and a member of the
performance review, and was subsequently fired by Brizard.
position was subsequently offered by Brizard to two women who were
in their 50's. Plaintiff has shown no evidence of a discriminatory
animus, and has failed to show that any younger employees were
Accordingly, I find that Plaintiff has failed to establish a
prima facie claim of age discrimination under the ADEA.
Plaintiff’s Retaliation Claims
Plaintiff claims that she was unlawfully retaliated against
after her employment with RCSD was terminated by Brizard who
[Plaintiff’s] performance.” To establish a prima facie case of
unlawful retaliation, a plaintiff must establish: (1) participation
in a protected activity known to the defendant; (2) an employment
action disadvantaging the plaintiff or action that would dissuade
discrimination; and (3) a causal connection between the protected
activity and adverse action.
Burlington Northern & Santa Fe
Railway Co. V. White, 548 U.S. 53, 68 (2006); Holt v. KMIContinental, 95 F.3d 123, 130 (2d Cir. 1996), cert. denied, 1997 WL
71191 (May 19, 1997); Tomka v. Seiler Corp., 66 F.3d 1295, 1308
(2nd Cir. 1995) (citations omitted).
Should the plaintiff state a
complained of, and then the burden shifts to the plaintiff to show
that the employer's articulated reason is both untrue and a pretext
for the true retaliatory motive. Id.
Title VII2 prohibits retaliation by an employer against an
employee in cases where the employee has engaged in a protected
activity under the statute. In the instant case, it is undisputed
that Plaintiff engaged in a protected activity under Title VII by
filing a charge of discrimination with the EEOC.
However, I find
that Plaintiff failed to demonstrate that she suffered a post-
Plaintiff’s NYSHRL and Title VII retaliation claims are analyzed
under the same standards. Van Zant v. KLM Royal Dutch Airlines, 80
F.3d 708 (2nd Cir. 1996). See Haywood v. Heritage Christian Home,
Inc., 977 F.Supp. 611, 613 (W.D.N.Y. 1997)(Larimer, C.J.)(Noting that
both claims are governed by McDonnell Douglas standard.)
employment action was casually connected to her filing a charge of
discrimination with the EEOC.
Plaintiff has failed to demonstrate that she suffered a
materially adverse action as a result of Brizard’s statement to a
reporter that he had “concerns with [Plaintiff’s] performance.” To
be materially adverse, the challenged action must be one “which
might well have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 67-68 (2006).
To determine whether
an adverse employment action occurred, the critical question to be
answered “is whether the effect of the defendants’ decision was
‘materially adverse,’ i.e., ‘harmful to the point that [it] could
well dissuade a reasonable worker from making or supporting a
charge of discrimination.’” Ragusa v. Malverne Union Free Sch.
Dist., 381 Fed. App. 85 (2d Cir. 2010) (quoting Hicks v. Baines,
593 F. 3d 159, 165 (2d Cir. 2010) (quoting Burlington N. & Santa Fe
Ry. v. White, 548 U.S. 53, 69 (2006)).
Loss of reputation is not generally considered an adverse
employment action. Negussey v. Syracuse University, 1997 WL 141679
at *11 (N.D.N.Y.); Wanamaker v. Columbian Rope Co., 907 F.Supp.
522, 535 (N.D.N.Y. 1995).
“[T]he courts that have considered this
issue have focused on such tangible matters as transfers and
changes in salary, job title, and job responsibilities, rather than
such inchoate matters as a plaintiff’s embarrassment or anxiety.”
Davis v. City University of New York, 1996 WL 243256 at *8
Here, Plaintiff merely alleges that two recruiters told her
that the “situation” with RCSD was an impediment to her getting two
other jobs she had applied for.
She does not allege that she was
turned down from these jobs because of the comment that Brizard
made in the article; she merely alleges that the “situation” at
RCSD was a factor.
allegations that she suffered an adverse employment action.
if Plaintiff could prove that she suffered an adverse employment
action, she has failed to allege facts that show any causal
connection between her filing a complaint with the EEOC and Brizard
Accordingly, Plaintiff has failed to state a prima
facie case of unlawful retaliation.
Plaintiff’s § 1981 Claim
Claims for unlawful retaliation under § 1981 are also reviewed
using the same standard as unlawful retaliation claims under Title
VII. Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir.
2004). However, § 1981 claims are based on discrimination on the
retaliation based upon her race.
For that reason, and for the
reasons stated above, I find that Plaintiff has failed to establish
a prima facie case of unlawful retaliation based upon race.
III. Equal Protection and Monell Claims.
To prove an equal protection violation, Plaintiff must allege
facts which demonstrate purposeful discrimination because her age.
See, Catanzaro v. Weiden, 188 F. 3d 56, 64 (2d Cir. 1999); Kadrmas
v. Dickinson Pub. Schs., 487 U.S. 450, 457-58, 108 S.Ct. 2481,
2487, 101 L.Ed.2d 399 (1988).
As discussed above, Plaintiff has
not presented facts from which a reasonable jury could conclude
that the actions of the Defendants were the result of purposeful
Additionally, in order to establish municipal liability under
Monell v. Department of Social Services of City of New York, 436
U.S. 658, 694 (1978), the alleged actions must constitute “a
government's policy or custom, whether made by its lawmakers, or by
those whose edicts or acts may fairly be said to represent official
policy...” Monell v. Department of Social Services of City of New
York, 436 U.S. 658, 694 (1978). “[T]o hold a [municipality] liable
under § 1983 for the unconstitutional actions of its employees, a
plaintiff is required to plead and prove three elements: (1) an
official policy or custom that (2) causes the plaintiff to be
subjected to (3) a denial of a constitutional right.” Batista v.
Rodriguez, 702 F.2d 393, 397 (2nd Cir. 1983).
Here, Plaintiff’s conclusory allegations with respect to the
purported existence of a custom or policy lack any factual support,
thus rendering her claims deficient and subject to dismissal. See
Smith v. Goord, 2011 WL 477685, at *4 (E.D.N.Y.).
discrimination or that any of the actions of which she complains
were part of an unlawful policy or custom, her equal protection and
Monell claims are dismissed.
For the reasons set forth above, I grant Defendants’ motion
for summary judgment on all of Plaintiff’s causes of action and
dismiss Plaintiff’s Complaint in its entirety with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
HON. MICHAEL A. TELESCA
United States District Judge
June 18, 2013
Rochester, New York
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