Caseflicks

District Court, E.D. New York • 2002

Tesser v. BOARD OF EDUC. OF CITY SCHOOL DIST.

190 F. Supp. 2d 430

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Takeaway

In short, this case underscores that a Title VII plaintiff retains the ultimate burden of proving discriminatory or retaliatory motive at trial, and a court will not displace a jury's credibility-based verdict merely because the plaintiff offered evidence supporting a different inference.

Background

Gilda Tesser, a Jewish assistant principal in New York City Community School District 21, alleged that school officials denied her a principalship at P.S. 177 because of her religion and retaliated after she complained about perceived anti-Semitism and retained counsel. Superintendent Donald Weber initially supported her candidacy, but declined to recommend her as one of two finalists after concluding that her escalating conflict with parents showed she lacked the community-relations skills required of a principal. Tesser contended that Weber instead yielded to parents' anti-Semitic opposition.

Tesser was reassigned to P.S. 128, where she alleged that Principal Michael Miller and others retaliated through office and duty changes, exclusion from faculty planning materials, and an incident in which Miller told her to leave the building. She later complained to administrative bodies, obtained whistleblower status, worked temporarily in another school district, and was ultimately deemed resigned after failing to return to District 21 following leave.

After more than two weeks of trial, the jury unanimously found that Tesser had not proved religious discrimination or retaliation by the Board of Education, Community School District 21, Weber, or Miller. Tesser moved for judgment as a matter of law under Rule 50 or, alternatively, a new trial under Rule 59. The court denied both requests.

Issues

Issue #1

Whether Tesser was entitled to judgment as a matter of law on her Title VII religious-discrimination claim after the jury found for the defendants.

Holding

No. A reasonable jury could find that Tesser failed to prove, by a preponderance of the evidence, that religious discrimination motivated the decision not to recommend her for the P.S. 177 principalship.

Reasoning

Rule 50 imposes a heavy burden. The court may overturn a jury verdict only where there is a complete absence of supporting evidence or where the evidence for the movant is so overwhelming that reasonable jurors could not reach the verdict returned. The court must draw reasonable inferences and make credibility determinations in favor of the verdict winner, rather than reweigh conflicting proof.

The McDonnell Douglas framework did not shift the ultimate burden of persuasion to defendants at trial. Although Tesser had produced enough evidence to establish a prima facie case and survive summary judgment, that framework is principally a screening device. Once the case reached the jury, the controlling question was whether Tesser proved that unlawful religious bias actually motivated the challenged employment decision.

Tesser's evidence could support an inference that Weber capitulated to anti-Semitic parental sentiment, and it could lead jurors to doubt Weber's explanation. But proof that an employer's stated reason was pretextual does not compel a finding that discrimination was the real reason. The jury could disbelieve Weber in part while still concluding that Tesser had not carried her burden of proving religious bias.

Weber testified that he believed Tesser remained capable in her assistant-principal role but had become unable to work effectively with the parents and broader school community, a skill he regarded as essential for a principal. That explanation was not wholly inconsistent with the record, and the court could not reject it by reassessing Weber's credibility. The evidence therefore permitted a reasonable jury to find no discriminatory motive.

Issue #2

Whether Tesser was entitled to judgment as a matter of law on her retaliation claim.

Holding

No. The administrative findings and trial evidence did not require a finding that defendants retaliated against Tesser for complaining of religious discrimination or hiring an attorney.

Reasoning

The findings of the Special Commissioner of Investigation and the New York Human Rights Commission were not preclusive in this federal Title VII action. Those findings were evidence the jury could consider, but they did not conclusively establish retaliation or constitute binding admissions by the Board of Education.

The jury received instructions requiring it to find that a defendant, motivated by Tesser's good-faith opposition to religious discrimination, subjected her to an adverse employment action. It was also instructed that institutional defendants and Weber could be liable even if Miller lacked direct knowledge of Tesser's complaints, and it was instructed on constructive discharge.

The defense supplied evidence from which jurors could find either a lack of retaliatory knowledge or a lack of adverse action. Miller testified that he did not know of Tesser's complaints when she returned to P.S. 128. He also testified that her different office and bus and lunchroom responsibilities reflected changes made when another assistant principal held the post, rather than actions targeted at Tesser.

A jury could also credit Miller's account that he directed Tesser to leave the building for a counseling session because of statements she had made about getting back at officials and parents, rather than because she had complained of discrimination. In light of this conflicting evidence, the court could not conclude that retaliation had been proved as a matter of law.

Issue #3

Whether the jury's verdict should be set aside and a new trial granted under Rule 59.

Holding

No. The verdict was not seriously erroneous or a miscarriage of justice, and the asserted trial errors did not substantially prejudice Tesser.

Reasoning

Although Rule 59 allows a judge to weigh evidence more freely than Rule 50, courts should rarely disturb a jury's credibility assessments. The central disputes here depended heavily on whether jurors believed Tesser, Weber, and Miller. The court found that Weber and Miller were not so inherently unbelievable that the jury could not reasonably credit all or part of their testimony.

The jury's approximately two hours of deliberation did not show that it failed to consider the case conscientiously. Jurors need not deliberate for any fixed period, and the discrimination and retaliation questions were not unusually complex for a Title VII case. Nothing indicated that the jury treated its responsibilities flippantly or contemptuously.

The order of witnesses did not warrant a new trial. When Weber and Miller were unavailable at the beginning of trial, the court acted within its discretion to begin the proceedings by having Tesser testify rather than delay the trial. Tesser also could have asked to retake the stand after Weber and Miller testified, but she did not do so.

Admission of Tesser's unredacted tax returns was not substantially prejudicial because her damages expert relied on tax consequences in discussing a possible lump-sum award, and the court gave a limiting instruction restricting the jury's use of family income and asset information. The Plainview superintendent's letter likewise supplied no basis for relief because Tesser withdrew her objection and had introduced an expert report that discussed and attached the same letter.

Defense counsel's summation comments suggesting that Tesser had presented selective tape recordings did not justify a new trial. While speculation without evidentiary support is improper, defendants could argue that Tesser had not met her burden and challenge the completeness of her proof. The court's instructions made clear that attorney argument was not evidence and that jurors could consider only admitted evidence and reasonable inferences, curing any potential prejudice.