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October 29, 1981

Eva MURPHY, Plaintiff,
MIDDLETOWN ENLARGED CITY SCHOOL DISTRICT, Louise Ellison, President of the Board of Education of the Middletown Enlarged City School District, Oscar Sotsky, Edith Weiss, Ruth Kassel, Raymond Wood, George Bagge III, George Sands, Joseph Moran, John Masi, Members of the Board of Education of the Middletown Enlarged City School District, and John Krause, Superintendent of the Middletown Enlarged City School District, Defendants

The opinion of the court was delivered by: COOPER

Plaintiff, Eva Murphy ("Murphy"), a black female high school teacher in the Middletown Enlarged School District ("district"), brings this action pursuant to the 13th Amendment, 14th Amendment, 42 U.S.C. ยงยง 1981, 1983, 2000d et seq. and 2000e et seq. against the nine members of the board of education of the district, the president of the board of education, the superintendent of the district and the district itself. The gravamen of the complaint is that on three separate occasions the district failed to promote Murphy to administrative positions within the district; once to the position of personnel director and twice to the position of assistant principal. *fn1" For its part, the district maintains that it only hired the best qualified individual for each position available and that in no wise did race and/or sex become a basis for its failure to select Murphy for any of the positions.

The Facts

a. Murphy's general background

 Murphy completed her secondary education in 1954 and matriculated in the same year at Allen University located in Columbia, South Carolina. *fn2" She attended there until 1956 when she interrupted her studies to go to work. Murphy was first employed as a secretary by American Machine & Foundry, a company located in Connecticut. After approximately a year and a half she left the firm to work for the New York Department of Social Services as a junior caseworker in New Rochelle, New York. *fn3" Murphy remained in that post for approximately a year and a half until she was hired by International Business Machines in Kingston, New York. Her initial position at I.B.M. secured in June, 1959, was that of stenographer. *fn4" She was promoted to secretary in 1961, and in 1962 she received the last increase in compensation although she remained there until August, 1966. *fn5" The highest level attained by Murphy was a "level 14" secretary at a pay rate of $ 5,200 a year. Her responsibilities there included making appointments, answering telephones, taking dictation, and training secretarial pool employees in typing, shorthand and other business skills. *fn6" Her duties did not include the hiring and firing of employees. *fn7"

 Murphy testified that her duties at I.B.M. were within the sphere of an administrative assistant and her exact title was "executive secretary." Notwithstanding the fact that I.B.M."s records revealed that Murphy made at most $ 5,200 a year, she asserted that her final and highest rate of annual compensation was approximately $ 10,000. *fn8"

 Donald Moyer, a witness called by the defendants and an employee with I.B.M. was familiar with the personnel records and practices of the corporation, admitted that he had no specific information regarding the work that managers may have assigned Murphy, *fn9" but did testify that a person in Murphy's position, a level 14 secretary, would have no responsibility for disciplining others and usually would not have the responsibility of assigning work to other employees. *fn10" He also stated that in 1966 the position of executive secretary, which Murphy claimed she occupied, carried a level 21 classification. The I.B.M. personnel records revealed that Murphy carried only a level 14 classification. *fn11"

 Upon her resignation from I.B.M. in 1966, Murphy secured employment with the Orange County Board of Cooperative Educational Services as a secretary to the director and then as instructor in data processing and in the use of "business machines." *fn12"

 She testified that during this period of absence from Allen University she took courses at Orange County Community College, Middletown, New York, and Mount St. Mary's, Newburgh, New York, and in 1969 she returned to Allen. *fn13" Murphy stated that she then spent a year and one summer at Allen, ultimately receiving a Bachelor of Science degree in August, 1971 with a major in business education and a minor in English. *fn14"

 Murphy was first employed by the district in the 1970-71 school year as a regular substitute. She taught non-Regents English and typing at Middletown High School despite her failure at that time to have a bachelors degree. *fn15" Bernard Courtney ("Courtney"), principal of the high school, recommended Murphy for a staff appointment and wrote "... Murphy has displayed unusual capability and concern in her work with many students of limited social motivation." *fn16" She was retained for the 1971-72 academic year as a full-time teacher. Even though Murphy had fulfilled her degree requirements, she did not have certification as a teacher from the New York State Education Department. *fn17" The Education Department would not accept her degree from Allen because it had lost accreditation. *fn18" Representatives of the district wrote to Allen University, the New York State Department of Education and the local supervisory district on behalf of Murphy in an effort to have her degree recognized. Ultimately, Murphy received permanent certification as a teacher in September, 1973 in the areas of English and commerce. *fn19"

 Beginning in the 1971-72 school year, once employed on a full-time basis, Murphy was assigned by the principal, Courtney, to handle disciplinary related problems of female students-problems such as non-attendance, class cutting, and, at times, personal problems. Murphy performed these duties for four of the six assignable class periods each day, teaching English the remaining two periods. *fn20"

 Courtney, at his deposition, testified that there was always a need for increasing personnel to assist with attendance follow-up, but that it would have been an unavailing request to ask the school board for additional personnel because of financial constraints. Therefore, Courtney assigned Murphy to this disciplinary related function; an appointment Courtney characterized as being similar to those of other teachers to the student yearbook organization or as senior class advisor; that such an appointment necessarily reduced the appointee's other teaching obligations. *fn21"

 Murphy testified that her duties relating to discipline involved handling referrals of students from teachers for such problems as class cutting and non-attendance. According to Murphy, subsequent to her initial meetings with these students, she often became involved in counseling them since their manifest problems were at times caused by deeper seated psychological and social traumas. She further testified that in the area of discipline she performed the same functions as the then "assistant to the principal" of the high school. *fn22"

 While Murphy was fulfilling her teaching and disciplinary duties at the high school, she embarked upon post-graduate studies. She earned sixty-six (66) credits at the State University of New York at New Paltz, receiving in May, 1977 a Master of Science Degree in Education and a Certificate of Advanced Study in Educational Administration and Supervision. *fn23"

 In 1974 the high school itself underwent change. Courtney, returning from a sabbatical, resigned as principal to become supervisor of secondary education for the Middletown schools. At this juncture Robert Palgutta ("Palgutta"), the vice-principal and acting principal during Courtney's absence, was promoted to principal. *fn24"

 Palgutta testified that during his tenure as acting principal and principal, he instituted several changes at the high school. First, he eliminated the "open campus" policy at the school. This was a policy pursuant to which students were left free to do as they wished when they had no scheduled classes. As the school day became more structured under Palgutta, a new discipline system was instituted to reduce the frequency of non-attendance and class cutting incidents. Palgutta described this new discipline system as one in which the student would be on more precise notice of the consequences following any infraction. *fn25"

 Second, Palgutta changed the administrative structure of the high school. He abolished the position of "assistant to the principal" and in its stead created two assistant principal positions. Palgutta testified that these new positions remained predominantly disciplinary related; the functions of the new positions were expanded into non-disciplinary areas. *fn26"

 Third, and among other changes, Palgutta instituted a morning sign-in procedure for teachers. Palgutta testified that this was done in an effort to better account for teachers who were required to be in their homerooms; if a teacher did not "sign-in" on time, the school administrators could readily recognize the problem and assign a teacher to temporary supervisory duty. *fn27"

 Murphy almost immediately ran afoul with Palgutta's signing-in directive. Murphy was reprimanded for lateness, at a minimum ten times in two years. *fn28" Approximately two and a half months after this new procedure was established, Palgutta reprimanded her in writing and characterized her as the "champ" and stated that she had signed-in less than any of the other teachers. *fn29" Murphy admitted at trial that on an infrequent basis she did not sign-in on time but stressed that she was never late for school; that many times she would be delayed in the mornings with students or parents who wished to discuss the disciplinary problems in which she was involved. *fn30"

 Not only did managerial and procedural changes occur after Palgutta became principal, Murphy testified that her role at the high school also changed. Allegedly, she was no longer invited to administrative meetings (held each Monday morning) where student problems of the prior week were discussed. *fn31" Murphy also testified that she did not receive the same "feedback" from Palgutta that she had from Courtney. *fn32"

 Ultimately at the end of the 1975-76 academic year, Murphy was no longer responsible for the disciplinary duties she had previously undertaken. She testified that her responsibilities as disciplinarian were interfering with her functions as a teacher; that she had discussed her difficulties with the superintendent of schools, Dr. John L. Krause ("Krause") and Palgutta; and a proposed position, Dean of Girls, was considered so that Murphy could continue her disciplinary functions. *fn33" Applications for this proposed position were elicited, Murphy applied and was interviewed capably and fairly by her superiors for the post. Due to budgetary constraints the position was never established. *fn34" Beginning in the 1976-77 school year, Murphy's teaching duties became full-time. *fn35"

 From the first days of her employment with the district, Murphy's daily responsibilities and functions revolved around her duties as a teacher and, until 1976, as disciplinarian. Except for these specifically assigned duties, Murphy did not participate much in the co-curricular and extra-curricular life of the school. In eleven years of employment up to and including the present day, she had chaperoned only one basketball game even though she testified that she attended several sporting events. Murphy further testified that she, along with other teachers, did escort the senior class almost every year on their annual trips to local resorts. *fn36" However, she has never participated in any other form of co-curricular or extra-curricular activity. *fn37"

 In September, 1976 Murphy became certified by the state as a school administrator and supervisor; and in September, 1978 she was certified as a school district administrator. *fn38" Today she is teaching English on a full-time basis at the high school.

 b. The district

 The Middletown Enlarged School District, located in Orange County, New York, was created in July, 1957 when a consolidation with an outlying district occurred. This was done pursuant to a New York State master plan with the approval of the State Commissioner of Education. *fn39"

 The district is headed by a board of education which is composed of nine persons who are normally elected by the public to serve staggered five year terms. *fn40" Only one black person, George Sands, is now on the board. He was designated to fill a vacancy and was subsequently elected to the position. *fn41"

 The district itself is composed of nine school facilities: one high school, a junior high and seven elementary schools. In the 1976-77 academic year, the high school moved into a new building, and grade 9, which had previously been part of the junior high became part of the high school. *fn42"

 During the 1978-79 school year, the last year for which counsel has provided us with statistics of district employment, enrollment and racial makeup, the district employed twenty-two administrators. Of this group, three were black. Two of these black administrators Fred Thornton and William Carter were principals of elementary schools. *fn43" The high school employed four administrators: a principal, vice-principal and two assistant principals. From 1971 to 1979 none of the administrators at the high school were black. *fn44" A statistical comparison of the racial makeup of the district's administrators, the student population and work force is noted below. *fn45"

 In addition to the above-mentioned administrators, the district employe district-wide administrators, such as directors of personnel, physical education and pre-kindergarten. Of the twenty-one persons who have held such positions from 1970 to the present two were black, both women. *fn46"

 In the 1978-79 school year, the district had a total enrollment of 6099 students, 1917 of which attended the high school. *fn47" The population was predominantly white but was represented by various racial and ethnic groups. *fn48"

 The district employed a total of 362 teachers during the 1978-79 year. Murphy was one of the 91 teachers at the high school. *fn49" As with the student population of the district, the teachers were for the most part white, but several minority group members were employed. The relevant statistics are noted below. *fn50"

 The district now has an annual budget of approximately $ 17,000,000, deriving part of its revenues from federally funded programs *fn51" under the Elementary and Secondary School Act of 1965, *fn52" and it has also received federal grants under the Head Start program as well as grants for the education of gifted and talented students. *fn53"

 c. 1978 personnel director position

 The first administrative position which Murphy applied for and did not receive allegedly because of discrimination, was that of director of personnel. This position was originally created in the 1971-72 academic year, but was eliminated before the beginning of the next school year for financial reasons. In 1978 the position was reinstated. *fn54"

 Solicitations for applications were posted at the high school as well as at several universities. *fn55" Krause, superintendent of schools for the district, testified that over one hundred applications were received. *fn56" Murphy was one of the applicants. *fn57"

 Krause testified that once the applications were received, he, Kenneth Quick, the business director of the district, and David Trachtenberg, the assistant superintendent for instruction, reviewed the same and narrowed the field to eleven applications for further screening and interviewing. *fn58"

 Of the eleven persons interviewed, nine were in-district employees and white males: Palgutta, the high school principal; Robert Minor, an elementary school principal; Steven Finkelstein, assistant principal at the high school; Richard Cromie, a department chairman at the junior high; Domenic Leone, coordinator of music; and Kenneth Gray, a chemistry teacher. Two of those interviewed, Douglas Goffman and James Formato, were from outside the district. *fn59" Of the two remaining applicants (out of the total of eleven) one was Susan Schwartz, a white woman serving an administrative internship in the personnel area with the district; the other was Murphy. *fn60"

 Krause testified that the second step in the procedure used to select the personnel director (after the initial screening) was to conduct interviews with the candidates. Normally he, Quick and Trachtenberg would have interviewed each candidate, but in Murphy's case, Quick was not present at her interview. *fn61" Krause further testified that questions were asked of each applicant; questions which were designed to elicit the candidate's understanding not only of the "technical" requirements of the position, such as contract administration, collective bargaining and knowledge of tenure and probationary laws, but also of their common sense and practical approach in dealing with personnel matters. Krause concluded with the assertion that "we were just looking for the overall best qualified person to fill these responsibilities." *fn62"

 Murphy admittedly did not recall the specific questions asked of her or her exact responses. She did testify that Krause asked her "a little" about her background and her experiences at I.B.M. and the Board of Cooperative Educational Services ("BOCES") were discussed. Murphy also recalled that one question asked concerned how she would handle a personnel problem with a female employee but did not remember her exact response. Further, she could not recall if there was any discussion concerning the interviewing and screening functions of the personnel director. *fn63"

 At the completion of all the interviews Krause, Trachtenberg and Quick, pursuant to their predetermined procedure, independently chose the three "top" candidates. *fn64" Each of the interviewers chose the same finalists: Susan Schwartz, Douglas Goffman and Domenic Leone. *fn65"

 Krause testified that the next step in the selection process was to have each of the three finalists interviewed by the entire board of education. Beforehand, questions were prepared by Krause, Trachtenberg and possibly George Sands, the chairman of the personnel committee of the board of education, for use at these interviews. *fn66" Ultimately, Schwartz, Goffman and Leone were interviewed by the entire board with Krause and Trachtenberg also in attendance. At the completion of these conferences, the board members, Krause and Trachtenberg voted for their respective choice by secret ballot. Domenic Leone was their collective choice. *fn67"

 Establishing Murphy's qualifications, or lack thereof, for the position of personnel director (as well as for assistant principal) consumed much of the efforts expended at trial. The parties have stipulated that as of 1978 the personnel director had the following duties: (1) labor contract and negotiation administration; (2) interviewing, screening and recommending candidates for appointments; (3) advising employees on deficiencies and their resolution; (4) maintaining staff records and supplying needed information for budget development; (5) analyzing personnel problems and advising the superintendent of schools on policies concerning any difficulties; and (6) general responsibility over district wide personnel, supervisory and evaluation programs. *fn68"

 Murphy testified that she was a member of the union representing the teachers at the district but held no office and was not on the negotiating committee of that union; *fn69" further, that she did have collective bargaining and negotiation experience. As wife of the president of the local chapter of the National Association for the Advancement of Colored People ("NAACP") she would accompany persons with labor difficulties to the respective employers in an effort to settle any problems. However, Murphy did not include any reference to collective bargaining or labor negotiation experience in her 1978 resume. *fn70" On cross-examination Murphy admitted that she had never represented management or a union in a collective bargaining situation and as of May, 1978 had never witnessed such a session. *fn71"

 As to the screening and interviewing of applicants and the observation and evaluation of personnel, Murphy testified that in her role as a disciplinarian she would act as a "referee" between student and teacher and on occasion "evaluate" a teacher's performance in the classroom. However, these evaluations were informal, not of the type which would be placed in a teacher's personnel file or be considered in tenure decisions. *fn72" Even though Murphy did take a course in the observation and evaluation of teachers in a classroom setting, she in fact had no experience in observing and evaluating teachers in the classroom-an expertise imperative of a personnel director. *fn73" Murphy also admitted that her last interviewing and screening experience was for her college sorority. *fn74"

 Both positions Murphy applied for required some degree of business acumen, but it was especially important for the personnel director; after all, payroll costs accounted for seventy-five (75) percent of the district's $ 17,000,000 annual budget. *fn75" Murphy testified that she possessed the necessary business skills and cited her undergraduate degree, her work as a social worker, employment as a secretary, and her teaching experience at Orange County Community College and the Orange County Board of Cooperative Educational Services. *fn76" She concluded:

... (B)ut all of this, being in business the number of years that I had and dealing with the public, landlords, welfare agents, tenants, you name it, I just felt that I had the background and credentials that would, where I would be suited for personnel director. *fn77"

 Prior to his appointment to the post of personnel director, Domenic Leone ("Leone") had served as coordinator of music, a district-wide administrative position, for the previous seven years. *fn78" He was first hired by the district in 1967 as a music teacher, graduating cum laude from the State University College at Fredonia with a Bachelor of Science degree in education. He received a Masters of Science degree in 1971 from Queens College, and in the same year the school district promoted him to coordinator of music. *fn79" In fulfilling his duties as coordinator of music, Leone testified that he was responsible for curriculum development, scheduling of courses, development of budgets, and evaluations of teachers. *fn80"

 Addressing himself specifically to curriculum, Leone testified that when he first received the music position he was concerned about the curriculum; that he developed a program of instruction for all levels-kindergarten to 12th grade; and that this curriculum is "very much" used today. A thirty-eight page typed document was introduced into evidence outlining the curriculum Leone developed. *fn81"

 The record also reveals that Leone had experience in observing and evaluating teachers. He testified that as coordinator of music he was required to evaluate teachers, select persons for the staff and make recommendations regarding tenure. Several evaluation forms completed by Leone were also introduced into evidence. *fn82"

 Aside from his duties as coordinator of music, Leone testified that he had labor negotiation experience; that he had been co-chairman of the salary committee representing the teachers at the district, and had served on the negotiating committee of the administrators' association. *fn83"

 In 1975, on sabbatical from the district, Leone attended the State University of New York at Albany completing his course work and oral examinations for his doctoral degree in education. He has not yet received this degree, for he is now in the process of writing his dissertation. *fn84" When Leone applied for the director of personnel position, he possessed certification as school administrator and supervisor and as school district administrator. *fn85"

 The record reveals that Leone was considered highly by his superiors for the work he did as a teacher and as coordinator of music. *fn86" When Leone was considered for the personnel director's post, Krause considered him "highly qualified" for the position. So overwhelming were Leone's qualifications for the post that Murphy testified it would not be "irrational or a mistake" for someone to consider Leone better qualified than herself for the personnel director's position. She characterized the choice as being "subjective." *fn87" However, Murphy felt, and still feels today, that she was better qualified than Leone for the position. *fn88" On cross-examination Murphy testified:

Q. ... It was your statement to us today that you feel as of May 1978, with the background you have delineated and recited in your case, as opposed to the background concerning which you admitted knowledge in the case of Mr. Leone, that you felt more qualified for the ...

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