Schwabenbauer v. BOARD OF ED. OF CITY SCH. DIST., CIV-77-588.

• Decision Date: 02 October 1980
• Docket Number: No. CIV-77-588.,CIV-77-588.
• Citation: 498 F. Supp. 119
• Parties: 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.
• Court: U.S. District Court — Western District of New York

498 F. Supp. 119

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, W. D. New York.

October 2, 1980.

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

Hodgson, Russ, Andrews, Woods & Good-year, 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. § 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 support for its contention that this incident is not fully reflective of a policy then and now in force; it has not shown, although such evidence would clearly be available to it if it existed, that the legal or factual framework of tenure decisions had sufficiently changed since 1955 to render this incident not relevant, that there were other and more recent incidents failing to support an inference that there then and now existed such a policy, or that defendant had formally established or amended its policy in the interim. I conclude that this evidence re Smith is material and of probative weight. The parties also have stipulated that one Kathryn Kenney had been hired at the same time as had plaintiff (September 1, 1968), had not reported for work (due to illness) until December 6, 1968 and yet had been granted tenure September 1, 1971. These two stipulated events comprise the total factual record herein. My decision must be based on these facts, on whatever inferences I may permissibly draw from them and on the law of Title VII.

To begin, defendants' granting tenure to Kenney on September 1, 1971 shows that they have not consistently relied on the school district's ability under New York's Education Law (see, In re Luchans, 2 Ed. Dept.Rep. 424, 426 (1963)) to toll the running of the probationary period during "substantial leaves of absence." Its failure to invoke this power in Kenney's case prevents it from doing so in the case at bar if such invocation would otherwise be discrimination actionable under Title VII.

Defendants next argue that the instant record, which shows only that two female teachers who were disabled by illness or injury received credit for leaves of absence in computing their probationary period while the female plaintiff did not receive such credit, fails to show discrimination on account of sex, but demonstrates mere discrimination among women. See, e. g., Stroud v. Delta Air Lines, Inc., 544 F.2d 892 (5th Cir.), cert. denied, 434 U.S. 844, 98 S.Ct. 146, 54 L.Ed.2d 110 (1977). The cases cited by defendants in support of this argument are not apposite to the situation at bar. In Stroud and similar cases, it was held that even blatant forms of discrimination (such as compelled resignation on account of marriage) imposed on flight attendants/stewardesses were not actionable under Title VII of the Civil Rights Act because defendants then hired no male flight attendants and there was, therefore, as a matter of logic, no possible discrimination against females in favor of males by reason of the challenged policy. As was succinctly stated in Stroud, "men were not favored over women; they simply were not involved in the functioning of the policy." Id., at 893. Here, although the pleadings and stipulations are silent on this point, I avail myself of judicial license and presume that defendants employ both men and women as school teachers. Stroud and similar cases simply do not apply.

However, at an evidentiary level, defendants' argument is tenable and substantial. The record herein, on its face, shows only that two female teachers received credit for leaves of absence while the female plaintiff did not. Defendants argue that plaintiff has therefore failed to establish the disparate treatment between the sexes necessary to state a claim...