667 F.2d 305 (2nd Cir. 1981), 58, Schwabenbauer v. Board of Educ. of City School Dist. of City of Olean

Docket Nº:58, Docket 80-7853.
Citation:667 F.2d 305
Party Name:Rose SCHWABENBAUER, Plaintiff-Appellee, 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
Case Date:December 17, 1981
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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667 F.2d 305 (2nd Cir. 1981)

Rose SCHWABENBAUER, Plaintiff-Appellee,

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-Appellants.

No. 58, Docket 80-7853.

United States Court of Appeals, Second Circuit

December 17, 1981

Argued Oct. 16, 1981.

Page 306

H. Kenneth Schroeder, Jr., Buffalo, N. Y. (Anne S. Simet, Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, N. Y., on the brief), for defendants-appellants.

Emanuel Tabachnick, Williamsville, N. Y. (Bernard F. Ashe, Albany, N. Y., on the brief), for plaintiff-appellee.

Before KAUFMAN, OAKES and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Defendants, the Board of Education of the City School District of the City of Olean and its members (collectively the "Board"), appeal from a final judgment of the United States District Court for the Western District of New York, John T. Elfvin, Judge, entered on the motion of plaintiff Rose Schwabenbauer, a teacher, for summary judgment. Schwabenbauer contended that the Board's termination of her employment constituted discriminatory treatment on the basis of her sex, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17 (1976). The district court agreed and awarded Schwabenbauer

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backpay, attorneys' fees, and reinstatement with tenure and seniority. Finding that summary judgment was improperly granted, we vacate the judgment and remand for such further proceedings as may be appropriate.

BACKGROUND

Certain facts are not in dispute. In 1968, the Board hired Schwabenbauer as a probationary elementary school teacher to commence September 1, 1968. At that time New York law required a new teacher to serve a three-year probationary period during which his or her performance could be observed and evaluated before a tenure decision was made by a board of education. See New York Education Law § 2509 (McKinney 1970). Schwabenbauer taught until February 1, 1970, a period of one year and five months, when she was granted, at her request, a maternity leave of absence for a period of up to two years. Schwabenbauer unexpectedly gave birth prematurely on February 7, 1970, and suffered adverse medical consequences; on her doctor's orders, she remained on leave for the remainder of the school year. 1

At Schwabenbauer's request the Board terminated her maternity leave as of September 1, 1970. Schwabenbauer returned to work on that date and worked until May 15, 1972, when she received notice from the Board that she would not receive tenure and that her employment would be terminated on June 30, 1972.

Schwabenbauer then began a series of attempts to gain reinstatement. 2 She contended that her three-year probationary period, which had commenced on September 1, 1968, should have ended on August 31, 1971. She asserted that because at the end of that period she was neither expressly granted tenure nor terminated but was permitted to continue teaching, she gained tenure by operation of law, sometimes called tenure by acquiescence. 3 The Board took the position that Schwabenbauer's probationary period did not end on August 31, 1971, because that period had been tolled by her lengthy maternity leave (and thence further extended to June 30, 1972, by virtue of amendments to New York law 4). In the present lawsuit, Schwabenbauer contends that, by denying credit for her pregnancy leave while granting credit for other lengthy medical leaves, the Board discriminated

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against her on the basis of her sex, in violation of Title VII. 5

The Motions for Summary Judgment

Following their agreement to two short stipulations of fact, both sides moved for summary judgment. In principal part the stipulations described the Board's treatment of two other female probationary teachers each of whom had been granted tenure on the third anniversary of her appointment despite a disability leave of absence lasting approximately three months. One was Kathryn L. Kenney, who was appointed as of September 1, 1968, and did not work from September 1, 1968, through December 6, 1968, due to illness (the nature of which was not specified in the stipulation), but was granted tenure effective September 1, 1971. The other, Mary Elizabeth Smith, was appointed as of September 1, 1952, was injured in an automobile accident on December 21, 1952, and did not work from December 1, 1952, to March 26, 1953; she was nevertheless granted tenure effective September 1, 1955. 6

Schwabenbauer contended that the Board's granting of credit to Smith and Kenney for the periods during which they were absent with non-pregnancy-related disabilities and the denial of similar credit to plaintiff for her absence for disability due to pregnancy demonstrated a Board policy of sex discrimination in violation of Title VII. She moved for summary judgment on the ground that no material facts were in dispute.

The Board cross-moved for summary judgment, on the ground that the undisputed material facts failed to establish a prima facie case of discrimination on the basis of sex. First, it contended that the 1952-55 events involving Smith, which predated Title VII by a decade, were so remote as to be worthless as proof of discriminatory treatment of Schwabenbauer, or as proof of a Board policy of discrimination, in the 1970's. Second, the Board contended that, even giving full play to the Board's treatment of Smith and Kenney, plaintiff's evidence showed, at best, discrimination among women, and that gender discrimination could not be proven by showing that some women were treated differently from other women. Third, the Board argued that the cases of Kenney and Smith were distinguishable from that of Schwabenbauer because their leaves were shorter than Schwabenbauer's and did not occur in the middle of their probationary terms, making evaluation of their abilities easier.

The District Court's Decision

The district court, in an opinion reported at 498 F.Supp. 119, granted summary judgment to Schwabenbauer. Noting that the parties had "agreed that (the) stipulations constitute(d) all the evidence in this case and that, accordingly, I should grant summary judgment on the existing record for one party or the other," id. at 120, the court stated that the "decision must be based on these facts (and) on whatever inferences I may permissibly draw from them." Id.

Focusing on the Board's treatment of Kenney and Smith, in 1971 and 1955, respectively, the court "as a trier of fact," id. at 121, inferred "that defendants had an informal, unwritten, generally sex-neutral policy of including disability leave time but that such policy was not extended to leaves due to pregnancy," id., and it therefore ruled that Schwabenbauer had established a prima facie case of sex discrimination. Rejecting the Board's argument that the

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1952-55 events concerning Smith were too stale to be probative of any forbidden discrimination, the court stated that the Board had "offer(ed) no factual support for its contention that this incident is not fully reflective of a policy then and now in force." Id. at 120.

The court also discounted the Board's argument that Schwabenbauer had presented no evidence to show that she had been treated differently from any man, pointing out that the Board had presented no evidence to show that men would not have been given the same treatment as Kenney and Smith. And as to the Board's contention that the length and timing of the Smith and Kenney absences were significantly different, the court stated that the Board had made no evidentiary showing that such differences were in fact the reasons for the Board's actions, and that the Board had therefore failed to rebut Schwabenbauer's prima facie case.

Holding that the Board's refusal to grant credit to Schwabenbauer for her maternity leave was unlawful, the court restored the credit, concluded that her probationary period had ended on August 31, 1971, and ruled that on September 1, 1971, Schwabenbauer had acquired tenure by acquiescence, see note 3, supra. The court ordered the Board to reinstate Schwabenbauer with seniority from September 1, 1968, and to pay her backpay totaling $123,555, plus interest, and attorneys' fees.

Because the record below cannot support a grant of summary judgment, we vacate the judgment and remand for further proceedings.

DISCUSSION

  1. The Substantive Framework

    Section 703(a) of Title VII, enacted in 1964 as part of the Civil Rights Act, makes it unlawful for an employer to discriminate against an employee "because of ... sex":

    It shall be an unlawful employment practice for an employer-

    (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

    (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

    42 U.S.C. § 2000e-2(a). To establish a prima facie case of sex discrimination under § 703(a) a female plaintiff may show that she was treated less favorably than men in circumstances from which a gender-based motive could be inferred (a "disparate-treatment" claim), or she may...

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