Court of Appeals says Cornell may have discriminated against female, older professor

The School of Industrial Relations at Cornell University may have discriminated against a professor on the basis of age and gender, the Second Circuit has ruled in a decision which fleshes out the legal framework for resolving these cases and remands this case for trial.

The case is Liebowitz v. Cornell University, issued on October 23. Margaret Liebowitz was a non-tenured Senior Extension Associate, teaching in the program's Extension facilities in New York City (the program is based in Ithaca). In 2002, citing budgetary exigencies, the school did not renew Liebowitz's contract, though it allowed her to teach in 2002-03. She elected to retire in December 2002. When Cornell decided to terminate Liebowitz's employment, the parties were in the middle of a dispute over the reimbursement of her travel expenses stemming from her commute to Ithaca.

It's been a while since the Court of Appeals has resolved a disparate treatment discrimination claim in a published opinion. It's worth paying attention to these cases which focus on how much evidence is enough to make out a prima facie case and whether the plaintiff has enough evidence to show the defendant's reason for terminating the plaintiff is pretext for discrimination. With one exception, the Court does not chart new ground here, but Cornell's vigorous defense raises a cornucopia of legal issues.

Liebowitz has a prima facie case of age and gender discrimination. The Second Circuit (Kearse, Katzmann and Bianco) follows the lead of federal courts around the country in finding that the failure to renew an employment contract constitutes an "adverse employment action." Noting that ADEA and Title VII prohibit the discriminatory failure-to-hire based on age or gender, the Court says, "under defendants’ reasoning, an employee could bring a discrimination lawsuit if an employer refused to hire her based on her age and/or gender, but not if the same employer failed to renew an employment contract for the same discriminatory reasons. We decline to adopt that flawed legal analysis, which is inconsistent with prior decisions of the Supreme Court and this Court."

Rounding out the prima facie test, Liebowitz also makes out an inference of discrimination because "(1) during the relevant time period, in addition to plaintiff, defendants laid off five other employees, all of whom were older than the age of fifty; (2) defendants reassigned teaching duties once performed by plaintiff to at least three male instructors; and (3) defendants did not consider plaintiff for vacant positions that arose in 2002, prior to plaintiff’s departure, in the Long Island and New York City offices, and attempted to fill one such position in the New York City office with a younger, male employee."
The Second Circuit emphasizes that "plaintiff is not required to establish that she was replaced by a single male and/or younger employee in order to carry her [prima facie] burden." Moreover, "the fact that the ILR School also hired females as well as males during the 'budgetary crisis' does not preclude an inference of gender discrimination."

A prima facie case is not going to do it, however. You also have to show the employer's stated reason for not renewing the contract is pretext for discrimination. Liebowitz has enough evidence on this issue for a trial. Cornell cites "anticipated budget cuts and the expense of maintaining her travel allowance." Cornell may be masking its discriminatory intent, the Court of Appeals says, because: (1) the budgetary concerns in 2002 had diminished over 2002-03 and by 2003 the school was in good financial shape; (2) the school's Extension Division had enough money to hire 12 new employees during the relevant time period; and (3) although the school laid off six employees, these employees were all older women. In addition, (4) although positions became vacant after Cornell decided not to renew her contract, the school did not consider her for any of them, and the Long Island branch wanted Liebowitz on the faculty and someone was actually fired for making Liebowitz an offer; (5) a younger male was hired to fill a vacant teaching position in NYC in 2002 and (6) Liebowitz was not considered for a position that opened up in 2003.

Cornell further said that it did not make room for Liebowitz because of personality conflicts. This is a common justification for adverse personnel decisions. The jury may reject that defense because there is evidence that the personality conflicts in the New York City office dissipated by 2002 and "similar past conflicts did not deter defendants from planning to place a male employee in that office."

Finally, Cornell said it let Liebowitz go because of her large travel reimbursement (New York City to Ithaca). This may also be pretextual, the Court says. "[I]t was a common practice amongst male Extension Division faculty members to negotiate for compensation as she did, and that none of these employees’ contracts were terminated or not renewed. Plaintiff submits that, if her requests were so onerous that granting them made her continued employment unsustainable, defendants were free to simply deny them."