Back v. Hastings On Hudson Union Free School Dist., Docket No. 03-7058.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtCalabresi
Citation365 F.3d 107
PartiesElana BACK, Plaintiff-Appellant, v. HASTINGS ON HUDSON UNION FREE SCHOOL DISTRICT, John J. Russell, Anne Brennan, Marilyn Wishnie, Defendants-Appellees.
Docket NumberDocket No. 03-7058.
Decision Date07 April 2004
365 F.3d 107
Elana BACK, Plaintiff-Appellant,
v.
HASTINGS ON HUDSON UNION FREE SCHOOL DISTRICT, John J. Russell, Anne Brennan, Marilyn Wishnie, Defendants-Appellees.
Docket No. 03-7058.
United States Court of Appeals, Second Circuit.
Argued: August 26, 2003.
Decided: April 7, 2004.

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Stephen Bergstein, Thornton, Bergstein & Ullrich, LLP, Chester, NY, for Plaintiff-Appellant.

Joan M. Gilbride, Kaufman, Borgeest & Ryan, Valhalla, NY, for Defendants-Appellees.

Before: WINTER, CALABRESI, and KATZMANN, Circuit Judges.

CALABRESI, Circuit Judge.


In 1998, Plaintiff-Appellant Elana Back was hired as a school psychologist at the Hillside Elementary School ("Hillside") on a three-year tenure track. At the end of that period, when Back came up for review, she was denied tenure and her probationary period was terminated. Back subsequently brought this lawsuit, seeking damages and injunctive relief under 42 U.S.C. § 1983 (2000). She alleged that the termination violated her constitutional right to equal protection of the laws. Defendants-Appellees contend that Back was fired because she lacked organizational and interpersonal skills. Back asserts that the real reason she was let go was that the defendants presumed that she, as a young mother, would not continue to demonstrate the necessary devotion to her job, and indeed that she could not maintain such devotion while at the same time being a good mother.

This appeal thus poses an important question, one that strikes at the persistent "fault line between work and family — precisely where sex-based overgeneralization has been and remains strongest." Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 1983, 155 L.Ed.2d 953 (2003). It asks whether stereotyping about the qualities of mothers is a form of gender discrimination, and whether this can be determined in the absence of evidence about how the employer in question treated fathers. We answer both questions in the affirmative. We also conclude that the plaintiff has asserted genuine issues of material fact in her gender discrimination claim against two of the individual defendants, Marilyn Wishnie and Ann Brennan. No evidence, however, has been proffered that is sufficient to support liability on the part of the School District or Superintendent Russell. Finally, we hold that qualified immunity does not attach to defendants Brennan and Wishnie, because the right to be free from discriminatory sex stereotyping was well established at the time of the alleged violation.

We therefore affirm the district court's grant of summary judgment to the School District and to Russell, but vacate its grant of summary judgment to Wishnie and Brennan, and, as to them, remand the case for trial.

A. Background

The following facts, construed as they must be in the light most favorable to the plaintiff, see Hotel Employees & Rest. Employees Union, Local 100 v. City of New York Dep't of Parks & Recreation, 311 F.3d 534, 543 (2d Cir.2002), were adduced in the court below.

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i. Back's Qualifications

As the school psychologist at Hillside Elementary School, Elana Back counseled and conducted psychological evaluations of students, prepared reports for the Committee on Special Education, assisted teachers in dealing with students who acted out in class, worked with parents on issues related to their children, and chaired the "Learning Team," a group made up of specialists and teachers which conducted intensive discussions about individual students. Defendant-Appellee Marilyn Wishnie, the Principal of Hillside, and defendant-appellee Ann Brennan, the Director of Pupil Personnel Services for the District, were Back's supervisors. They were responsible for establishing performance goals for her position, and evaluating Back's work against these standards.

In the plaintiff's first two years at Hillside, Brennan and Wishnie consistently gave her excellent evaluations. In her first annual evaluation, on a scale where the highest score was "outstanding," and the second highest score was "superior," Back was deemed "outstanding" and "superior" in almost all categories, and "average" in only one.1 "Superior" was, according to the performance instrument, the "standard for consideration for obtaining tenure in Hastings." Narrative evaluations completed by Wishnie and Brennan during this time were also uniformly positive, attesting, for example, that Back had "served as a positive child advocate throughout the year," and had "successfully adjusted to become a valued and valuable member of the school/community."

In her second year at Hillside, Back took approximately three months of maternity leave. After she returned, she garnered another "outstanding" evaluation from Brennan, who noted that she was "very pleased with Mrs. Back's performance during her second year at Hillside." Other contemporaneous observations also resulted in strongly positive feedback, for example, that Back "demonstrate[d] her strong social/emotional skills in her work with parents and teachers, and most especially with students," and that she was "a positive influence in many areas, and continues to extend a great deal of effort and commitment to our work." In her annual evaluation, Back received higher marks than the previous year, with more "outstandings" and no "averages." The narrative comments noted that she "continues to serve in an outstanding manner and provides excellent support for our students," and that her "commitment to her work and to her own learning is outstanding." At the beginning of Back's third year at Hillside, she again received "outstanding" and "superior" evaluations from both Brennan and Wishnie.

Defendant-Appellant John Russell, the Superintendent of the School District, also conducted ongoing evaluations of Back's performance. In January 1999, he observed a Learning Team meeting, and reported that Back had managed the meeting "in a highly efficient and professional manner," and that it was "obvious [that she] was well prepared." He rated her performance "superior." In February 2000, he again sat in on a Learning Team meeting, and again indicated that Back's performance was "superior." He also noted that she was effective without being overly directive, and worked well with the other members of the team. In addition, according to Back, all three individual defendants repeatedly assured her throughout

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this time that she would receive tenure.

ii. Alleged Stereotyping

Back asserts that things changed dramatically as her tenure review approached. The first allegedly discriminatory comments came in spring 2000, when Back's written evaluations still indicated that she was a very strong candidate for tenure. At that time, shortly after Back had returned from maternity leave, the plaintiff claims that Brennan, (a) inquired about how she was "planning on spacing [her] offspring," (b) said" `[p]lease do not get pregnant until I retire,'" and (c) suggested that Back "wait until [her son] was in kindergarten to have another child."

Then, a few months into Back's third year at Hillside, on December 14, 2000, Brennan allegedly told Back that she was expected to work until 4:30 p.m. every day, and asked "`What's the big deal. You have a nanny. This is what you [have] to do to get tenure."' Back replied that she did work these hours. And Brennan, after reportedly reassuring Back that there was no concern about her job performance, told her that Wishnie expected her to work such hours. But, always according to Back, Brennan also indicated that Back should "maybe ... reconsider whether [Back] could be a mother and do this job which [Brennan] characterized as administrative in nature," and that Brennan and Wishnie were "concerned that, if [Back] received tenure, [she] would work only until 3:15 p.m. and did not know how [she] could possibly do this job with children."

A few days later, on January 8, 2001, Brennan allegedly told Back for the first time that she might not support Back's tenure because of what Back characterizes as minor errors that she made in a report. According to Back, shortly thereafter Principal Wishnie accused her of working only from 8:15 a.m. to 3:15 p.m. and never working during lunch. When Back disputed this, Wishnie supposedly replied that "this was not [Wishnie's] impression and ... that she did not know how she could perform my job with little ones. She told me that she worked from 7 a.m. to 7 p.m. and that she expected the same from me. If my family was my priority, she stated, maybe this was not the job for me." A week later, both Brennan and Wishnie reportedly told Back that this was perhaps not the job or the school district for her if she had "little ones," and that it was "not possible for [her] to be a good mother and have this job." The two also allegedly remarked that it would be harder to fire Back if she had tenure, and wondered "whether my apparent commitment to my job was an act. They stated that once I obtained tenure, I would not show the same level of commitment I had shown because I had little ones at home. They expressed concerns about my child care arrangements, though these had never caused me conflict with school assignments." They did not — as Back told the story — discuss with her any concerns with her performance at that time.

Back claims that in March, Brennan and Wishnie reiterated that her job was "not for a mother," that they were worried her performance was "just an `act' until I got tenure," and that "because I was a young mother, I would not continue my commitment to the work place." On April 30, 2001, Brennan and Wishnie purportedly repeated the same concerns about her ability to balance work and family, and told Back that they would recommend that she not be granted...

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    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
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    ...Plaintiff has therefore sufficiently alleged Florentino's personal involvement. See Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir.2004) (“There is little doubt that [school district employee defendants] were ‘personally involved’ in the purported deprivation, o......
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    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
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    ...but can be held liable if he was personally involved in the alleged deprivation." Back v. Hastings On Hudson Union Free Sch. Dist. , 365 F.3d 107, 127 (2d Cir. 2004) (citation 379 F.Supp.3d 258 omitted). The personal involvement of an individual defendant can be shown by:evidence that: (1) ......
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    • United States District Courts. 11th Circuit. Middle District of Georgia
    • 16 Noviembre 2016
    ...See, e.g., Morales–Cruz v. Univ. of Puerto Rico, 676 F.3d 220, 224–25 (1st Cir. 2012) ; Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 119 (2d Cir. 2004) ; Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2001) ; E.E.O.C. v. Boh Bros. Const. Co., 731......
  • Radwan v. Univ. of Conn. Bd. of Trs., No. 3:16-cv-2091 (VAB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 6 Junio 2020
    ...Amendment, to be free from discrimination on the basis of sex" by public institutions. Back v. Hastings On Hudson Union Free Sch. Dist. , 365 F.3d 107, 117 (2d Cir. 2004). To establish a claim under Section 1983, a plaintiff must show that "(1) the defendant acted under color of state law; ......
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769 cases
  • St. Juste v. Metro Plus Health Plan, No. 10–CV–4729 (MKB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 28 Marzo 2014
    ...Plaintiff has therefore sufficiently alleged Florentino's personal involvement. See Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir.2004) (“There is little doubt that [school district employee defendants] were ‘personally involved’ in the purported deprivation, o......
  • Davis v. N.Y.C. Hous. Auth., 18-CV-459 (JPO)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 29 Marzo 2019
    ...but can be held liable if he was personally involved in the alleged deprivation." Back v. Hastings On Hudson Union Free Sch. Dist. , 365 F.3d 107, 127 (2d Cir. 2004) (citation 379 F.Supp.3d 258 omitted). The personal involvement of an individual defendant can be shown by:evidence that: (1) ......
  • Roberts v. Archbold Med. Ctr., CASE NO.: 7:14–cv–210 (WLS)
    • United States
    • United States District Courts. 11th Circuit. Middle District of Georgia
    • 16 Noviembre 2016
    ...See, e.g., Morales–Cruz v. Univ. of Puerto Rico, 676 F.3d 220, 224–25 (1st Cir. 2012) ; Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 119 (2d Cir. 2004) ; Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2001) ; E.E.O.C. v. Boh Bros. Const. Co., 731......
  • Radwan v. Univ. of Conn. Bd. of Trs., No. 3:16-cv-2091 (VAB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 6 Junio 2020
    ...Amendment, to be free from discrimination on the basis of sex" by public institutions. Back v. Hastings On Hudson Union Free Sch. Dist. , 365 F.3d 107, 117 (2d Cir. 2004). To establish a claim under Section 1983, a plaintiff must show that "(1) the defendant acted under color of state law; ......
  • Request a trial to view additional results

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