Lowe v. Commack Union Free School Dist.
| Decision Date | 21 September 1989 |
| Docket Number | No. 1285,D,1285 |
| Citation | 886 F.2d 1364 |
| Parties | 50 Fair Empl.Prac.Cas. 1400, 51 Empl. Prac. Dec. P 39,375, 52 Empl. Prac. Dec. P 39,530, 58 USLW 2216, 56 Ed. Law Rep. 459 Annmarie LOWE and Marie Delisi, Plaintiffs-Appellants, v. COMMACK UNION FREE SCHOOL DISTRICT, Joseph Del Rosso, as Superintendent of Schools, and Robert L. Davis, as Assistant Superintendent of Schools, Defendants-Appellees. ocket 89-7211. |
| Court | U.S. Court of Appeals — Second Circuit |
Frederic Block (Lane T. Maxson, Block, Amelkin & Hamburger, Smithtown, N.Y., of counsel), for plaintiffs-appellants.
Brian McCaffrey (Vanessa M. Sheehan, Pelletreau & Pelletreau, Patchogue, N.Y., of counsel), for defendants-appellees.
Before MESKILL, PIERCE and MAHONEY, Circuit Judges.
Plaintiffs-appellants Annmarie Lowe and Marie Delisi appeal from a judgment entered following a jury trial in the United States District Court for the Eastern District of New York, Wexler, J. Having applied for and been denied positions as elementary school teachers with the Commack Union Free School District (the School District) for the 1986-87 school year, Lowe and Delisi brought this action against defendants-appellees the School District, Joseph Del Rosso, Superintendent of the School District, and Robert L. Davis, Assistant Superintendent of the School District. Lowe and Delisi alleged, inter alia, violations of section 4(a)(1) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec. 623(a)(1) (1982) (the ADEA). The jury returned a verdict in favor of defendants-appellees, and the district court ordered We affirm.
the complaint dismissed. Lowe and Delisi appeal from the judgment that followed.
Annmarie Lowe was born on March 23, 1934. Lowe began substitute teaching in the School District in 1969. In 1971, the School District hired her as a full-time teacher. In 1974, she was granted tenure.
Marie Delisi was born on June 12, 1934. In 1970, the School District hired Delisi as an elementary school teacher. In 1973, she was granted tenure.
Both Lowe and Delisi continued to work for the School District as tenured elementary school teachers until 1976. In 1976 the School District faced declining enrollment and, consequently, a need to abolish some teaching positions. Because they had relatively little seniority, both Lowe and Delisi were "excessed" in 1976 pursuant to New York State law. See N.Y.Educ.Law Sec. 2510(2) (McKinney 1981). Accordingly, they were placed on a "preferred eligible list." Those placed on this list would be rehired in order of seniority as vacancies occurred. N.Y.Educ.Law Sec. 2510(3) (McKinney 1981 & Supp.1989). The rights accorded Lowe and Delisi to be rehired because of their placement on this list would expire after seven years. Id. 1
While Lowe and Delisi waited for vacancies to occur, they both accepted positions in the School District as teacher assistants, positions paying far less than they had received as full-time teachers. Lowe and Delisi introduced evidence to show that while serving as teacher assistants, they performed many duties commensurate with those of full-time teachers. Throughout the seven years they remained on the preferred eligible list, no vacancies occurred, and their rights to be rehired lapsed in June 1983.
In November 1985, the Board of Education of the School District decided to adopt the New York State Retirement Incentive Program. Under this program, teachers age 55 or older were given incentives to retire. The decision to retire remained optional, but the School District anticipated that the adoption of the incentives would persuade some teachers to retire. Thus, it was expected that there would be vacancies for teaching positions for the 1986-87 school year. Apparently for this reason, the School District's Director of Personnel, Joseph Heinlein, sent a memorandum dated January 28, 1986 to the School District Superintendent, defendant-appellee Del Rosso. The memorandum recommended that the process for selection of teachers "should be based, wherever possible, on an objective evaluation of teacher qualifications." He recommended assessment of five areas--background and training, experience, personal and social characteristics, communication skills and physical fitness.
Defendant-appellee Davis became Assistant Superintendent of the School District in May 1986. Davis was instructed by Del Rosso to oversee the process for hiring teachers. Ultimately, the process overseen by Davis filled thirteen openings for the position of elementary teacher at the beginning of the 1986-87 school year. It is this process of selection that forms the basis of the instant suit.
1. Screening of Internal Candidates
All internal candidates were given the opportunity to be interviewed and to take a writing sample test. The interviews were conducted by six school administrators who were selected for the task because they were likely to have vacancies in their schools for the upcoming year. Each internal candidate was to be interviewed by two administrators in a single interview. The School District concedes that the interviewers were given wide discretion as to the substance of the interviews and the basis for evaluation of the candidates. One interviewer who interviewed both Lowe and Delisi testified that, in interviewing candidates generally, he asked questions "concerning firstly their knowledge of subject matter, secondly their ability to make provisions for group instruction, their ability to evaluate children in the classroom other than just a written test, and finally I seek to get from the candidate how well they can communicate to me and also to the children in the classroom." Each interviewer was to evaluate the candidate in terms of a rating of "Yes" or "No." No further evaluation of the candidates or explanation of the "Yes" or "No" evaluation was required.
The writing sample test, administered after the interviews, was designed to test the candidates' writing abilities and, to a lesser extent, their substantive knowledge of educational topics. Each sample was graded by an administrator who was unaware of the identity of the tested candidate. For purposes of grading the writing sample, writing ability constituted 7.5 points and the content of the writing constituted 5.0 points for a maximum score of 12.5.
Thirty-seven internal candidates decided to take part in this process, including Lowe and Delisi. The results of the interviews and writing samples were compiled by Davis during the summer of 1986. Davis then undertook to reduce the number of internal candidates by two-thirds pursuant to criteria he developed. Under his criteria, Davis examined each candidate's interview evaluations and writing sample score to determine whether he or she would be "in" or "out" of a remaining pool of eligible candidates (The Pool). Candidates who received two "Yes" evaluations in the interview and a writing sample score of 8.0 or higher would survive this cut and be placed in The Pool. Candidates who received one "Yes" and one "No" in the interview and who received a writing sample score of at least 9.0 would also make it into The Pool. No candidates who received two "No" evaluations in the interview would be placed in The Pool, regardless of their writing sample scores.
Of the thirty-seven internal candidates interviewed, two did not go on to complete the process by taking the writing sample test. Davis' application of his criteria eliminated from further consideration twenty-one more candidates, including Lowe and Delisi. The fourteen surviving candidates were placed in The Pool.
Lowe received two "No" evaluations from her interview and a writing sample score of 8.25. Thus, under the defendants' explanation of the process, Lowe was not placed in The Pool because no candidates with two "No" interview evaluations survived Davis' cut. Delisi received one "Yes" and one "No" and a score of 7.5. Thus, the defendants contend, Delisi was not placed in The Pool because her writing sample score was lower than the 9.0 required of candidates who had received one "Yes" and one "No" in their interviews. Both Lowe and Delisi were notified by letters dated July 23, 1986 that their "candidacy for an elementary teaching position for the 1986-87 school year [was] no longer under active consideration."
2. Screening of External Candidates
Over seven hundred external candidates applied for the thirteen positions. Davis requested the personnel office to narrow this field to one hundred by means of a "paper-screening" of the applications and resumes based on the candidates' experience, certifications and the schools they had attended. When Davis received these one hundred applications, he further narrowed the field to approximately thirty-five, again based only on their records. These thirty-five candidates were invited to be interviewed. Twenty-six of these external candidates were interviewed, all but one by Davis personally. One candidate, Robert Minott, was known by Davis, and Davis therefore arranged to have another official interview him.
Nine of the external candidates survived this interview process and went on to take a writing sample test. One candidate scored 8.75 on the sample, and all others scored 9.0 or above. The record is unclear as to whether these scores...
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