Schools’ Attorneys Seek Dismissal of Lunch Lady’s Lawsuit: ‘Schmuck’ Unlikely To Be Directed at Females

Saying a lawsuit brought by a New Canaan Public Schools lunch lady fails to establish that she was treated differently from male counterparts, worked in a hostile environment or suffered emotional distress under the district’s food services director, attorneys for the Board of Education are seeking to have the case dismissed.

Attorneys with Stamford-based Ryan Ryan Deluca LLP, led by Catherine Nietzel, said in documents filed Monday with U.S. District Court that the plaintiff, Antonia Torcasio, also failed to show that the town had been negligent in its supervision of Food Services Director Bruce Gluck.

Specifically, Torcasio—a 12-year employee, out on unpaid sick leave since October 2013—and her attorney, Richard Pate of Westport, fall short of the legal standards required for matters such as hostile work environment or gender-based discrimination.

In a 29-page memo that accompanies the motion to dismiss, attorneys for the Board of Ed and Gluck pick apart Torcasio’s complaint point-by-point. [The memo can be found in PDF form at the end of this article.]

For example, regarding Torcasio’s claim that she heard Gluck “refer to female members of the BOE, mothers of students and female staff members, including the school principal, as ‘[b-tches],’ ‘morons’ and ‘schmucks,’ ” and using “the words ‘[b-tch]’ and some form of the word ‘[f-word]’ when referring to female employees,’ ” the attorneys say that only the alleged reference to female workers as ‘[b-tches]’ could evidence discrimination.

Yet “terms such as ‘moron’ do not evidence discrimination on the basis of gender, because such terms do not single persons out on account of gender.”

“The term ‘schmuck’ similarly does not single persons out on account of gender,” the memo continues, adding rather lightly: “In fact, ‘schmuck’ is unlikely to be directed at females, particularly if the speaker knows Yiddish.”

Torcasio in a lawsuit filed Jan. 12 said that Gluck created a hostile work environment by screaming, cursing, throwing things and otherwise intimidating and degrading women he oversees—causing one to urinate herself and sending others to therapy. Last week, Torcasio’s lawyer filed a motion to increase the number of witness depositions in the case from nine to 15.

Identifying Torcasio as a manager in food services—something she does not state in the complaint—the attorneys say specifically that she fails to show that she was treated differently from men, performed her duties satisfactorily, suffered “intentional infliction of emotional distress,” among other claims.

Here is a rundown of Torcasio’s claims and citations from the defendants’ attorneys’ memo, disputing them:

  • On being treated differently from similarly situated male employees: “There are no allegations that male employees were not subject to the behavior the Plaintiff claims Gluck directed at female employees. Of significance is the Plaintiff’s allegation that the food services division of the BOE consists of 29 female employees and four [male employees]. In other words, there are more than seven times as many female employees in the food services division as there are male employees. The Plaintiff’s allegations … seek to infer discrimination on the basis that, she believes, Gluck treated male employees in the food services division more favorably than female divisions despite never having witnessed any of his interactions with men. This does not suffice for a disparate treatment claim under Title VII.”
  • On suffering an adverse employment action: “The Plaintiff does not allege that she was terminated from her employment. She does not allege that she was demoted or that her salary decreased. The Plaintiff likewise does not allege that she received a less distinguished job title or diminished material responsibilities. The gravamen of the Plaintiff’s allegations is that, as a result of the ‘overall intolerable work environment,’ she has been on unpaid sick leave since October 2013 and that she has sometimes had to do less desirable activities at work, even though such activities were part of her duties and responsibilities.”
  • On working in a place permeated with severe or pervasive discrimination on the basis of gender: “A review of the Complaint reveals that any alleged conduct by Gluck that could be deemed sexually discriminatory did not alter the conditions of the Plaintiff’s work environment. The Plaintiff alleges that Gluck’s conduct toward her consisted of him: demeaning her with ‘continual, unwarranted reprimands’; screaming insults at her suggesting that she was ‘an inferior human being who failed to understand directives’; pounding his fists on tables or desks and throwing papers and cloth napkins; screaming at her and threatening to terminate her employment on one occasion; using ‘aggressive gestures’ accompanied by ‘malicious glances and a sarcastic tone of voice’ when addressing her; and subjecting her to ‘unwarranted castigation.’ Other than the word ‘continual,’ which is ambiguous, there is no allegation as to how often the Plaintiff experienced this conduct. Further, none of this alleged conduct evidences discrimination on the basis of gender. These allegations do not tend to show that Gluck engaged in the aforementioned conduct because of the Plaintiff’s gender. At most, they tend to show that the Plaintiff’s workplace was unpleasant and difficult … The Plaintiff may have found Gluck’s conduct toward her hurtful, disrespectful, or offensive, but this is insufficient to prove that her gender or some other prohibited characteristic was the reason for the conduct. Further, Gluck’s alleged actions are insufficient to support a claim of a hostile work environment.”
  • On suffering intentional infliction of emotional distress: “The alleged conduct of Gluck was not extreme and outrageous … The Plaintiff claims that Gluck’s ‘outrageous misconduct’ included screaming, pounding his fists, and throwing objects on several occasions. Such conduct is no worse than similar conduct by employers or supervisory employees that courts have found not to be extreme and outrageous … While the alleged conduct, if true, may have been rude or insulting, and even distressing to the Plaintiff, that is not enough to state a claim for intentional infliction of emotional distress.”

Here is the memo from Ryan Ryan Deluca:

Torcasio_v_New_Canaan_Board_of_Education__ctdce-15-00053__0021.1.pdf

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