498 F.Supp. 119 (W.D.N.Y. 1980), No. CIV-77-588, Schwabenbauer v. Board of Ed. of City School Dist. of City of Olean

Docket Nº:CIV-77-588.
Citation:498 F.Supp. 119
Party Name:Rose SCHWABENBAUER, Plaintiff, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF OLEAN, and Harry S. Leonelli, Charles L. Kinney, Mary Chicola, Martin Faragher, Della Moore, Edward H. Radigan, Paul J. Schafer, John J. Sheehan, Norman R. Utecht, all as members of the Board of Education of the City School District of the City of Olean,
Case Date:October 02, 1980
Court:United States District Courts, 2nd Circuit
 
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Page 119

498 F.Supp. 119 (W.D.N.Y. 1980)

Rose SCHWABENBAUER, Plaintiff,

v.

BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF OLEAN, and Harry S. Leonelli, Charles L. Kinney, Mary Chicola, Martin Faragher, Della Moore, Edward H. Radigan, Paul J. Schafer, John J. Sheehan, Norman R. Utecht, all as members of the Board of Education of the City School District of the City of Olean, Defendants.

No. CIV-77-588.

United States District Court, D. New York

Oct. 2, 1980

Page 120

Bernard F. Ashe, Albany, N. Y. (Emanuel Tabachnick, Williamsville, N. Y., of counsel), for plaintiff.

Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, N. Y. (H. Kenneth Schroeder, Jr., Buffalo, N. Y., of counsel), for defendants.

MEMORANDUM and ORDER

ELFVIN, District Judge.

In this action, brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. s 2000e et seq.) and charging discrimination on account of sex, defendants and plaintiff have cross-moved for summary judgment on the evidentiary support of two stipulations of fact. They have agreed that such stipulations constitute all the evidence in this case and that, accordingly, I should grant summary judgment on the existing record for one party or the other. I hold that plaintiff has established a violation of Title VII.

Familiarity with my Memorandum and Order entered March 15, 1978, which sets forth at pages 1-2 the relationship between plaintiff and defendants within the structure of New York's changing public school teacher tenure statutes, is assumed. Such relationship is confirmed in the first stipulation of facts and needs no further explication. The two stipulations of fact show that in two earlier cases substantial leaves of absence had been given to two female teachers because of injury or illness and that such leaves did not affect the time when they were respectively granted tenure. The first such instance was that of one Mary Elizabeth Smith who had been appointed in September 1952, had been absent due to an injury from December 1, 1952 to March 26, 1953 and yet had been granted tenure effective September 1, 1955. Defendants argue strenuously that this incident may not be considered because of its sheer remoteness in time and because it antedated the Civil Rights Act. Neither of these contentions is meritorious. Use of evidence dating from substantially prior to the effective date of the Civil Rights Act is often necessary to show an employment practice or policy. See, e. g., United States v. Jacksonville Terminal Company, 451 F.2d 418, 439 (5th Cir. 1971). Defendant offers no factual...

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