McConkey v. The Churchill School and Center

Background

Dennis McConkey sued his former employer, The Churchill School and Center, alleging age and sexual-orientation discrimination and retaliation. The claims arose under the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.

McConkey alleged that he worked at Churchill from 1992 until his termination in October 2022. He alleged that Jason Wallin, a supervisor who later became Principal, repeatedly made or repeated homophobic comments, including references to a slur written on a classroom board in 2001. McConkey also alleged that Wallin referred to him as “institutional memory,” which McConkey understood as a reference to his age. He claimed that other older employees were dismissed or pressured to retire and that his assistant, who was in her mid-thirties, took over his position and duties after his firing.

McConkey further alleged that he complained to Churchill administrators in September 2021 and June 2022 about the alleged homophobic and age-related conduct. In October 2022, Churchill suspended and then fired him after an incident involving students in a girls’ bathroom. The termination letter stated that he had kicked open the door and knocked a student into a sink. McConkey denied that account and alleged that available security video would have disproved it. He claimed the bathroom incident was a pretext for terminating him after he complained about bias.

Claims and legal standard

McConkey asserted eight claims: age discrimination under the Age Discrimination in Employment Act; sex discrimination under Title VII; age, sex, and sexual-orientation discrimination under the New York State Human Rights Law; age, sex, and sexual-orientation discrimination under the New York City Human Rights Law; and retaliation under each of those federal, state, and city laws.

Churchill moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not allege enough facts to state a legally valid claim. At this stage, the court accepted the complaint’s well-pleaded factual allegations as true and drew reasonable inferences in McConkey’s favor. The court did not decide whether the allegations would ultimately be proven.

The court held that incidents outside the applicable filing periods could still be considered as background evidence supporting timely claims. It concluded that the federal claims generally reached incidents on or after March 2, 2022, while the state and city claims generally reached incidents on or after March 20, 2020.

Sexual-orientation discrimination and retaliation

The court held that McConkey plausibly alleged sex-related discrimination under Title VII. His allegations about Wallin’s repeated references to the homophobic slur, comments about gay teachers, and statement that Wallin could not support reappointing “someone like you” provided a minimal basis to infer discriminatory intent. The court also found that Wallin played a meaningful role in the termination process and that McConkey plausibly alleged that the bathroom incident was a pretext.

The court therefore denied the motion to dismiss McConkey’s Title VII sex-related discrimination claim. Because the court found that the Title VII claim was adequately pleaded, it also concluded that the related sexual-orientation discrimination claims under the New York State Human Rights Law and New York City Human Rights Law survived.

The court also found that McConkey plausibly alleged retaliation based on his complaints to Churchill administrators. The court treated his reports of alleged homophobia and ageism as protected activity, found that Churchill had sufficient knowledge of those reports, and concluded that the roughly four-month period between his June 2022 email and termination did not defeat a possible causal connection, particularly because he was not working during the summer recess. The court denied the motion as to his sex-related retaliation claims under Title VII, the New York State Human Rights Law, and the New York City Human Rights Law.

Age discrimination and retaliation

The court held that McConkey did not adequately plead age discrimination. The allegations about other older employees did not establish that they were treated under similar circumstances, replaced by younger workers, or replaced by people outside the protected age group. The court also found that the assistant’s age, the “institutional memory” comment, and the statement that ageism was a problem at Churchill did not sufficiently connect McConkey’s firing to his age.

The court granted the motion to dismiss McConkey’s age-discrimination claims under the Age Discrimination in Employment Act, the New York State Human Rights Law, and the New York City Human Rights Law.

The court reached a different result on age-related retaliation. It found that McConkey’s June 2022 complaint describing the “institutional memory” comment as possible ageism was protected activity and that the timing and circumstances alleged were sufficient at the pleading stage. The court denied the motion to dismiss his age-related retaliation claims under the Age Discrimination in Employment Act, the New York State Human Rights Law, and the New York City Human Rights Law.

Disposition

The court granted Churchill’s motion to dismiss as to McConkey’s age-discrimination claims under the Age Discrimination in Employment Act, the New York State Human Rights Law, and the New York City Human Rights Law. The court denied the motion as to McConkey’s age-related retaliation claims under those laws and denied it as to his sex-related discrimination and retaliation claims under Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. The order did not state that any claim was dismissed with or without prejudice.