Age Discrimination Claims, Based on Statistical Evidence, Survives Summary Judgment Against the NYC Dept. of Education

In Lebowitz et al v. New York City Dept. of Educ., No. 526062/20, 2022 WL 4357086 (N.Y. Sup Ct, Kings County Sep. 16, 2022), the court, inter alia, denied defendant’s motion for summary judgment as to two Sheepshead Bay High School teachers.

After concluding that summary judgment was warranted on one teacher’s claims, it reached the opposite conclusion as to other teachers – primarily based on their reliance on statistical evidence.

From the decision:

This court finds that factual issues preclude the dismissal of the action as against Black and Reznikov. Black’s claim is primarily predicated on O’Mahoney’s statements made at faculty meetings that older teachers were in their “fuck you years” and making “fuck you money” that older teachers were closeminded about the use of technology, negative performance reviews, and the reaction to his medical leave requests. However, unlike Lebowitz, Black is not bound by the district court’s finding that the statistics regarding the number of older teachers who received negative performance evaluations fail to show an inference of age discrimination. Contrary to the district court, this court finds the fact that 15 of the 16 teachers who received negative performance reviews during the 2013-2014 school year and the fact that all 6 of the teachers who received negative performance reviews during the 2014-2015 school year were over 40 is statistically significant.14 In addition, contrary to the district court, this court finds that Black is not required to present expert proof regarding the statistics because the negative observation reports are taken straight from the DOE’s own records and do not involve a sophisticated statistical theory that would be beyond the ken of a juror without expert testimony. As such, this court finds that the statistics are sufficient to raise an inference that the negative evaluations were based on age and/or were pretextual. While, when considered separately, the borderline ageist comments and negative evaluations might not be sufficient to establish harassment under the City HRL, in view of the statistical evidence suggesting that the evaluations may have been pretextual, the evaluations and comments, taken together with other alleged indignities suffered by Black, demonstrate that there are factual issues as to whether he was treated less well than other employees because of his age such that the motion must be denied.

The rationale that warrants denial of the motion as against Black also warrants denial as against Reznikov, who like Black, relies on O’Mahoney’s “fuck you years” and making “fuck you money” comments and the negative evaluation reports, and, who like Black, is not bound by the portion of the district court’s decision relating to statistics. Reznikov’s claim is additionally supported by a series of comments by Izzo-Ianelli. While many of the comments by Izzo-Ianelli, although insensitive and nasty, do not relate to Reznikov’s age, several of them are clearly age related (i.e. telling older teachers that they were “yesterday” while younger teachers were “tomorrow,” that she was not going to tolerate stale teaching methods of older teachers, and that we don’t want your experience). These comments, when considered in conjunction with those of O’Mahoney and the negative evaluations, demonstrate that there are factual issues as to whether Reznikov was treated less well because of her age such that the motion to dismiss the complaint must be denied.

[Cleaned up.]

This decision, as such, is instructive as to the use of statistical evidence to prove unlawful employment discrimination.

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