ADEA Retaliation Claim, Arising From Denial of Substitute Teaching Application Following EEOC Charge, Survives Summary Judgment

In Massaro v. The Board of Education of the City School District of the City of New York, et al, 2021 WL 184364, at *6 (S.D.N.Y. Jan. 19, 2021), the court, inter alia, held that plaintiff presented sufficient evidence to survive summary judgment (in part) on her retaliation claim under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (ADEA).

As to plaintiff’s prima facie case, the court explained:

Unlike Plaintiff’s other complained-of conduct, some of Defendant’s activity with respect to the application closely followed notice of the EEOC charge on September 16, 2021. The parties agree that pursuant to its review of Plaintiff’s application to serve as a substitute teacher, Defendant sent an email to Plaintiff on September 19, 2016, stating that Plaintiff needed to complete additional forms and submit them through Defendant’s online portal. Defendant claims that Plaintiff never completed these forms, thus resulting in an incomplete application upon which Defendant could not act. Plaintiff stated in her deposition that she did not complete those forms shortly after Defendant states they were sent because she did not receive them, but that she visited Defendant’s premises to check on the status of her application and was told she would not receive a substitute teaching license. Her affidavit clarifies this testimony, noting that she later received the email and submitted the requested forms, and was again told on a second visit to Defendant’s premises that she would not receive a license. Genuine issues of material fact exist as to whether: (1) Plaintiff submitted those forms; (2) Defendant did not issue a license due to their absence; and (3) Defendant explicitly told Plaintiff that her license application had been denied, instead of declining to act on it. If Defendant in fact denied the substitute teaching license, then, drawing all inferences in Plaintiff’s favor, a jury could conclude that the decision was due to or motivated by retaliatory animus arising from the immediately preceding EEOC charge. Plaintiff has met her prima facie burden on causation for Defendant’s review of her substitute teaching license application on or after September 16, 2016.

While defendant provided a nondiscriminatory justification for its actions – namely, that it did not take further action on Plaintiff’s substitute teaching application because Plaintiff never provided the necessary forms – plaintiff presented countervailing testimony that “Defendant twice told her that her application was denied, both before and after she submitted the requested forms.”

The court concluded that “[b]ecause a reasonable jury could accept Plaintiff’s testimony to conclude that Defendant’s stated nondiscriminatory justification for its denial of the substitute teaching was pretextual, summary judgment for Defendant is improper on this basis.”

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