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A woman who claims she was fired from her position in a day care center for opposing a company policy of shunning male applicants can pursue a federal civil rights action, a Northern District of New York judge has held. U.S. Magistrate Judge David R. Homer, in rejecting a defendant’s motion for summary judgment, said that a reasonable jury could conclude that Maura O’Shea was terminated because she objected to a discriminatory employment practice. Further, Homer awarded the plaintiff statutory damages of $50 per day for a COBRA (Consolidated Omnibus Budget Reconciliation Act of 1985) violation. O’Shea v. Childtime Childcare Inc., 01-CV-1264, involves a company that operates day care centers in 17 states, including New York, and a woman who operated one of the firm’s facilities in suburban Albany, N.Y. Maura O’Shea, director of the center in Clifton Park, N.Y., had repeated run-ins with her supervisors over the firm’s alleged policy of discriminating against male applicants. At one point, a parent removed her child from the center because one of the teachers was male. Regardless, O’Shea exercised her hiring discretion and on occasion hired men to work in the toddler room. She was fired on Dec. 16, 1999, purportedly for failing to report for work two days earlier and for failing to meet marketing goals. O’Shea filed a complaint with the New York State Division of Human Rights alleging that the reasons stated for her termination were pretextual, that she had been directed to fulfill unrealistic enrollment quotas and that she was fired for openly opposing a discriminatory practice outlawed under Title VII of the Civil Rights Act of 1964. The Division of Human Rights found probable cause to support O’Shea’s allegation and the Equal Employment Opportunity Commission issued her a “right to sue” letter, which brought the matter ultimately before Homer. In a motion for summary judgment, Childtime Childcare argued that O’Shea’s retaliation claim was predicated not on the employer’s discriminatory practice but on the conduct of a private citizen. Childtime claimed that O’Shea’s suit was based largely on the complaints of the parent who removed her child from the day care center. It noted that while O’Shea’s supervisor advised her to apologize to the parent and persuade her to re-enroll the child, O’Shea was not ordered to fire the male teacher. “Viewed in isolation, this incident would not suffice to establish a basis for O’Shea’s claims of discrimination and retaliation,” Homer said. “However, viewed in context with the other events alleged by O’Shea … [the supervisor's] response to the parent’s complaints provides some evidence that by appeasing the parent and reprimanding O’Shea [the supervisor and Childtime] agreed with the discriminatory position voiced by the parent. “Thus, because O’Shea’s claims do not rest solely on the parent’s statement of her views, defendants’ motion for summary judgment on this ground must be denied.” COBRA CLAIM The COBRA claim stems from the fact that under federal law an employer must advise employees of their right to continue health insurance coverage following termination. Childtime acknowledges that it failed to meet the COBRA notice requirement. Here, since O’Shea was not notified of her COBRA rights, she went without insurance for several weeks and incurred uninsured medical expenses. Homer exercised his discretion to award statutory damages. Homer said other courts have generally awarded damages in the range of $45 to $55 per day. He awarded $50 for 46 days, for a total of $2,300. Appearing were John T. Leahy of Worthington, Mass., for O’Shea, and James A. Resila of Carter, Conboy, Case, Blackmore, Maloney & Laird in Albany for the defendants.

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