Rose v. NYC Bd. Edu.

• Decision Date: 16 May 2001
• Docket Number: Docket No. 00-7599
• Parties: (2nd Cir. 2001) Shirley Rose, Plaintiff-Appellant, v. New York City Board of Education, C.S.D. #13, Defendant-Appellee. August Term 2000 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 156

257 F.3d 156 (2nd Cir. 2001)

Shirley Rose, Plaintiff-Appellant, v. New York City Board of Education, C.S.D. #13, Defendant-Appellee.

Docket No. 00-7599

August Term 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: May 16, 2001

Decided: July 16, 2001

Appeal from order of United States District Court for the Eastern District of New York (Sterling Johnson Jr., Judge). Plaintiff brought suit alleging violations of Age Discrimination and Employment Act, 29 U.S.C. § 621. Following trial, jury found for defendant. Held: district court erred in failing to give a burden-shifting jury instruction. Reverse and remand for further proceedings.

Edward H. Wolf, Bronx, New York, for Plaintiff-Appellant.

Julia Steiner, New York, New York (Assistant Corporation Counsel for the City of New York, Michael D. Hess, Corporation Counsel, Barry P. Schwartz of counsel), for Defendant-Appellee.

Before: FEINBERG, VAN GRAAFEILAND and SOTOMAYOR, Circuit Judges.

FEINBERG, Circuit Judge:

Plaintiff Shirley Rose appeals from a judgment of the United States District Court for the Eastern District of New York (Sterling Johnson Jr., Judge). Following trial, the jury returned a verdict for defendant New York City Board of Education, Community School District #13 ("Board") on Rose's claim alleging a violation of the Age Discrimination and Employment Act ("ADEA"), 29 U.S.C. § 621. Because we find that the district court erred in failing to give a burden-shifting jury instruction under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), we reverse and remand for further proceedings.

I. Background

A. Rose's employment history

The facts pertinent to this appeal are as follows. Plaintiff Rose, a 54-year-old¹ African-American woman, has worked for the Board in various positions for over two decades. Rose began her career with the Board as a special education teacher at P.S. 184. She taught for two years at P.S. 184 until the program was dissolved. She then transferred to School District #27 where she taught emotionally disturbed sixth grade boys for three years. In both capacities, Rose consistently received satisfactory job performance ratings.

After serving for five years as a classroom teacher, Rose was promoted to assistant principal of P.S. 9. She worked there for two years, again receiving satisfactory performance evaluations. At the end of her second year, Rose's position at P.S. 9 was eliminated due to a decline in the student population. For the next few years, Rose "floated" in district 27. During this time, she continued to receive satisfactory ratings from her superiors.

In 1988, Rose was assigned to the assistant principal position at P.S. 305 where she also successfully performed her job duties. During Rose's third year at P.S. 305, the principal took a leave of absence due to illness and Rose was promoted to acting principal. Under Rose's leadership, the students' reading and math scores improved. When the principal returned from leave, the school superintendent promoted Rose to acting principal of another school, P.S. 307.

The first two years of Rose's tenure as principal of P.S. 307 passed without incident. Once again, the students' reading and math scores improved and Rose received satisfactory ratings for her job performance. Things took a turn for the worse, however, in the summer of 1992.

During the 1992 summer session between her second and third years as principal of P.S. 307, Rose worked as site supervisor for the summer program at P.S. 93. For the first time in her career with the Board, that summer Rose received an unsatisfactory job evaluation. Rose's supervisor, Carol Friedman, commented in the evaluation that Rose had endangered the student body by permitting an early dismissal from the school grounds and that Rose had generally failed to manage resources adequately.

Rose's relationship with the Board continued to deteriorate during the 1993-1994 academic year. Beginning in 1993, Dr. Lester Young was assigned as school superintendent in Rose's school district and became her direct supervisor. Friction between the two quickly became evident. Young cited Rose for a number of incidents involving her direction of P.S. 307. For example, Young reprimanded Rose for an incident where she asked parents at P.S. 307 to help cover the cost of student textbooks -- a violation of Board policy. Young also cited Rose for her failure to submit reports in a timely manner. In total, Rose claims that Young wrote over 30 letters regarding her poor performance to be placed in her file.

At one point during the 1993-94 school year, asbestos was discovered in the school building. During a PTA meeting held to discuss the matter, Rose was allegedly accosted by angry parents. When she reported the incident to Young, Rose claims that he told her to "let it go" and informed her that if she could not follow his instructions, he would replace her with someone "younger and cheaper." Rose claims that Young told her that he would replace her with someone "younger and cheaper" on a second occasion in February 1994 in connection with a disagreement they had over the placement of a teacher. At trial, Young denied having made these or any other comments about replacing Rose with a younger person.

In March 1994, Rose met with Young and a union representative. During that meeting, Young outlined five unsatisfactory aspects of Rose's job performance. These were: inability to maintain a safe and orderly environment; failure to produce an effective administration plan; inability to motivate staff or work effectively with parents; failure to comply with Board and district policies; and failure to develop a calendar of activities and complete textbook orders. Young informed Rose that unless there was dramatic improvement in these areas, she would not retain her position.

In June 1994, Young gave Rose an unsatisfactory evaluation, and recommended to the Board that Rose's service as non-tenured principal of P.S. 307 be "discontinued." In July 1994, the Board followed that recommendation and reassigned Rose to an assistant principal position at P.S. 256. In the fall of 1994, Rose officially received an unsatisfactory rating for the 1993-94 school year.

B. EEOC complaints and district court proceedings

In April 1994, after Young's alleged "younger and cheaper" remarks, Rose filed a complaint with the EEOC alleging sex and age-based harassment. After her demotion a few months later to assistant principal, Rose filed a second complaint with the EEOC alleging retaliation. In December 1995, Rose filed the instant suit in the Eastern District. In her complaint, Rose alleged that the school board had violated the ADEA when it demoted her because of her age.² Rose claimed that she was replaced at P.S. 307 by someone younger and less experienced than herself and that her demotion cost her approximately $45,000 in lost salary. Rose sought injunctive relief, back wages and compensation for her physical and emotional suffering.

In April 2000, plaintiff's case came to trial before Judge Johnson. Both Rose and Young testified regarding the events discussed above. In her testimony Rose described, among other things, the asbestos incident including Young's "younger and cheaper" remarks. Rose also offered explanations for the Board's various complaints regarding her performance. When Young took the stand, he denied making any age-related statement and claimed that he was not even aware of Rose's age.

At the close of evidence, the district judge held a charge conference at which he presented the parties with proposed jury instructions. Rose's counsel objected to a portion of the charge describing defendant's burden and asked the court to give the jury a Price Waterhouse burden-shifting instruction. In particular, counsel requested that the jury be instructed to shift to defendant the burden of showing that Rose would have been demoted even without Young's discriminatory animus. Defendant Board strongly opposed this request, and the district court reserved decision.

Thereafter, both parties presented closing arguments. After the parties completed their summations, the district court informed them that he had accepted defendant's position on the burden issue and would not give the jury a burden-shifting charge. Rose's counsel voiced his objection but the district judge adhered to his ruling. The jury was charged and no further objections were raised. The jury returned a verdict for defendant and answered "no" on a special verdict form to the following question: "Do you find that plaintiff Shirley Rose has proven by a preponderance of the evidence that age was a determinative factor in defendant['s]... demoting her from her position as probationary principal...."

This appeal followed.

II. Discussion

A. Jury Instructions

Rose claims that the district court erred in failing to give the jury a burden-shifting charge under Price Waterhouse. In response, the Board contends that (1) Rose waived this argument by failing to object to the instructions after the jury had been charged; and (2) the charge plaintiff requested was not justified on the trial record.

1. The Board's claim of waiver

We turn first to the issue of waiver. At the outset, we note that Rose objected twice to the court's proposed charge: first, at the charge conference (before closing arguments) and later when the judge denied Rose's request for a burden-shifting instruction (after closing arguments). In her first objection, Rose specifically cited Price Waterhouse for the proposition that the Board should bear the burden of showing, by a preponderance of the evidence, that it would have demoted her even in the absence of discrimination. As discussed above, the district judge then deferred decision on this question until after closing arguments. At that point, the judge stated (outside the presence of the jury) that he denied plaintiff's request for a Price Waterhouse charge...