United States District Court, Southern District of New York
July 13, 1990
MARY MORTON, PLAINTIFF,
CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, A PUBLIC ENTITY CREATED PURSUANT TO AND UNDER THE LAWS OF THE STATE OF NEW YORK, FRANCES VAZQUEZ, FORMERLY SUPERINTENDENT OF THE BRONX HIGH SCHOOLS, DIVISION OF HIGH SCHOOLS/CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, JACK VALERIO, PRINCIPAL OF JAMES MONROE HIGH SCHOOL, VICTOR HERBERT, SUPERINTENDENT OF THE BRONX HIGH SCHOOLS, DEFENDANTS.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
OPINION AND ORDER
Defendants move and plaintiffs cross-move for summary judgment pursuant
to Federal Rule of Civil Procedure 56. Plaintiff is an African American
woman who was 62 years of age when this lawsuit was filed on February
23, 1988. She brings this suit against defendants City School District of
the City of New York and three of its employees, seeking monetary damages
and equitable relief based on allegations that defendants
discriminatorily decided not to hire plaintiff to be an Assistant
Principal at James Monroe High School.
In 1964, plaintiff was appointed to a teaching position at James Monroe
High School, a public school in Bronx, New York. In 1983, the Assistant
Principal (AP) retired and plaintiff assumed the AP's duties despite the
fact that she did not satisfy the educational and licensing requirements
for the AP position. On February 10, 1987, the New York City Public
Schools Division of Personnel distributed a notice that there was an
opening at James Monroe High School for the position of "Assistant
Principal Supervision Stenography and Typewriting." Ex. 5 to Goffin Aff.
(August 7, 1989).*fn1 On February 23, 1987, plaintiff submitted an
application for the position. Ex. 6 to Goffin Aff. On March 6, 1987, Ms.
Susan Friedman, a white female of a younger age than plaintiff, submitted
the only other application for the job.
Plaintiff had become licensed to be an AP by early 1987 and on March
27, 1987, the Division of High Schools officially appointed plaintiff
"interim acting" "Assistant Principal-Sten/Type. Ex. 3 to Goffin Aff. On
April 29, 1987 the Executive Director of High Schools granted the
Superintendent of the Bronx High Schools, defendant Frances Vazquez
("Vazquez"), permission to begin the interviewing process for hiring a
permanent AP. Pursuant to Special Circular No. 30-R issued by the
Chancellor of the Board of Education, see Ex. 34, 35 to Goffin Aff., the
two candidates were interviewed by a five member committee consisting of
an assistant to Vazquez, two Board of Education principals from different
boroughs, a parent and a retired employee of the Division of Personnel.
After interviewing plaintiff on June 19, 1987, the panel completed
"Summary of Interview Data" sheets with the following conclusions under
"strengths," "weaknesses" and "comments":
I. Strengths: "She has experience as the Interim
Acting AP for 4 years."
"Knowledgeable re `U' rating."
"Civic orgs. — on the job experience."
"Job experience is inevitable but Mrs. Morton could
have told more of her on the job experiences."
II. Weaknesses: "Role of work unclear in so far as
knowing her responsibilities."
"Ans[wers] poorly organized — need prodding."
"Didn't respond to problem posed."
"Her answer lacked specificity."
"She was lackluster."
"Did not demonstrate and/or explain any major
contributions she has made to dept. during her
tenure as I.A.P."
"Identified problems but did not offer adequate
"Does not handle challenges well re: cuts in dept.
Does not know how to be an advocate to `sell' her
"Poorly organized answers — no solution."
"Lacked up to date knowledge in technology."
"Presentation was very weak."
"Not too articulate. Good deal of tugging necessary."
III. Comments: "Qualified to be AP."
"This was not the candidate's best effort, but she
comes highly recommended."
"Did not quite present herself as an individual
who is an educational leader."
Ex. 14 to Goffin Aff.
After interviewing Ms. Friedman on the same day, the same panel
submitted a "Summary of Interview Data" divided into the same three
categories as follows:
I. Strengths: "Works at [illegible]-taught, asst.
prog. [illegible], workshops throughout city-Strong
[illegible], knows RAP, strong integrative approach
to dept. Trained in new technology."
"Reasonable/Well spoken/Good human relations."
"Knowledgeable about problems/challenges of RAP."
"Aware of new technology."
"Aware of role of AP in cabinet — school-wide
"School experience — valuable."
"Exp. P/C, RAP Coordinator, knowledge RAP, new
technology, role of cabinet, [illegible] new
"Very good administrative qualities, good in
motivation of staff, planning of programming
curriculum, good cabinet responsibilities as the
assistant to Principal."
"Excellent applicant — knowledgeable
[illegible], new technology, integrative approach,
correlation of [illegible] studies."
II. Weaknesses: "Weak answer on apathetic teacher
— needed more depth."
"Shows no foreseen weaknesses."
III. Comments: "Inexperienced."
"Very good candidate."
"She appears to be an excellent candidate for the
position and to be able to provide positive
"Would work well with a principal."
"Alert to current problems in teaching the sect.
Ex. 15 to Goffin Aff.
The panel concluded that Ms. Friedman was a preferable candidate to
plaintiff. However, plaintiff was not eliminated from the application
process at that point. The panel took into consideration that it was
possible that plaintiff had "had a bad day" and recommended that Vazquez
conduct a second interview of both candidates to confirm its conclusion.
Pl.Ex. O at 50. On June 26, 1987, Vazquez interviewed both candidates and
reached the same conclusions as the panel. Id. at 54. In a letter dated
June 28, 1987, Vazquez informed the Executive Director of the Division of
High Schools that she approved the recommendation submitted by the
interview committee. In July 1987, plaintiff was informed informally
that she had not been selected for the position. A letter dated September
3, 1987, confirmed that plaintiff had not been hired. On September 9,
1987, plaintiff took a leave of absence for medical reasons. Ex. 30 to
Goffin Aff. By letter dated, September 21, 1987, Ms. Friedman was
informed that she had been selected for the AP position.
Subsequently, complaints by plaintiff prompted investigations, by the
Office of Equal Opportunity for the New York City Board of Education and
the Office of the Executive Director of High Schools, of the process by
which defendants selected Ms. Friedman and rejected plaintiff. Those
investigations resulted in conclusions by said offices that the decision
not to hire plaintiff was in accordance with standard procedures and not
a result of discrimination. Ex. 23, 25, 28 to Goffin Aff. As of March
28, 1988, plaintiff retired. Ex. 32 to Goffin Aff.
Plaintiff claims in her motion papers that the decision not to hire her
violated Title VII, as well as 42 U.S.C. § 1981, 1983, the due
process clause and the equal protection clause. She alleges that
discrimination based on her race and age are the basis for defendants'
decision. To grant a motion for summary judgment a court must find that
there is no genuine issue as to any material fact, and that the moving
party is entitled to judgment as a matter of law because, after sufficient
time for discovery, the non-moving party has failed to make a sufficient
showing of an essential element of its case as to which it has the burden
of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986).
I. Title VII.
The framework for establishing a Title VII violation is: plaintiff has
the initial burden of proving by a preponderance of the evidence a prima
facie case of discrimination; defendants then can rebut the inference of
discrimination by presenting evidence that the plaintiff was rejected, or
the other applicant was chosen, for a legitimate, nondiscriminatory
reason; and then plaintiff has the ultimate burden of persuading the jury
that the legitimate reason was only a pretext. See Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d
207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973).
Plaintiff has satisfied her initial burden in this case: she belongs to
a protected class; she applied for a position for which the employer was
seeking applicants; she had the basic qualifications for the position;
she was rejected; the position remained open and was filled by a white.
See Sweeney v. Research Foundation of the State University of New York,
711 F.2d 1179 1185 (2d Cir. 1983).
Defendants satisfy their initial burden of rebuttal as well. The record
is clear that Ms. Friedman's performance in the interview process
surpassed that of plaintiff. Plaintiff argues that the evaluations cannot
constitute legitimate reasons because an interview is not an adequate
means for evaluating her candidacy. Plaintiff attempts to support this
argument with an expert affidavit explaining how review of plaintiff's
past experiences as AP would be much more revealing than an interview
Plaintiff's argument is without merit. Interviews are a rational and
accepted means of assessing an applicant's qualifications. More
importantly, the evaluations of plaintiff and Ms. Friedman were not based
exclusively on the ability to perform well at an interview. The members
of the panel and Vazquez were in possession of both candidates' resumes
and inquiries were made concerning the candidates' past experiences and
agenda for the position if hired. The selection process involved not only
the style and form of the candidates' presentations, but also the
substance. Pl.Ex. O at 55. Vazquez's letter approving the panel's
decision describes Ms. Friedman s experience in past employment, her
range of knowledge and skills, and only mentions the completeness of her
presentation in one sentence. Ex. 18 to Goffin Aff.
As to plaintiff, Vazquez recognizes her experience as AP, but concludes,
"It appears that the department could use new dynamic leadership." Id.*fn2
The remaining issue is whether there are any issues of fact material to
the question of whether defendants' legitimate reasons are a pretext for
discrimination. Plaintiff can establish a pretext "`either directly by
persuading the court that a discriminatory reason more likely motivated
the employer or indirectly by showing that the employer's proffered
explanation is unworthy of credence.'" Meiri v. Dacon, 759 F.2d 989, 997
(2d Cir.) (quoting Burdine, 450 U.S. at 256, 101 S.Ct. at 1095), cert.
denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985). Summary
judgment for defendants is inappropriate if plaintiff can "produce
evidence from which the trier of fact reasonably could draw an inference
of discrimination." Sorlucco v. New York City Police Dept., 888 F.2d 4, 7
(2d Cir. 1989); Smith v. American Express Co., 853 F.2d 151, 154-55 (2d
Cir. 1988) (granting summary judgment for defendant in Title VII action,
despite plaintiff's establishment of a prima facie case); Meiri, supra
(same). Summary judgment for plaintiff is appropriate if plaintiff can
prove that the reason is pretextual. Sorlucco, 888 F.2d at 7. Here
plaintiff presents no evidence that raises a genuine issue of fact
material to whether the legitimate reason was only a pretext.
Plaintiff contends that an issue of fact as to the validity of the
panel's assessment of her capabilities is created by comments on her
performance as acting AP by Monroe High School principal, defendant Jack
Valerio ("Valerio"). The statement upon which plaintiff relies is taken
from Valerio's deposition:
Mary Morton performed satisfactorily in her job,
right up to and including the last day of service, and
there is no feeling on my part, even in retrospect,
that she should not have been allowed to continue in
that position, other than that she did not succeed in
the competitive examination process of the position.
Pl.Ex. N at 96. There is no conflict between Valerio's sentiments and the
evaluation by the interviewing panel. The panel never doubted that
plaintiff had "performed satisfactorily" in the AP position, but concluded
that Ms. Friedman was more dynamic and better suited for the opening.
Ex. 18 to Goffin Aff. In addition, Valerio stated in his deposition
several weaknesses of plaintiff's performance as AP:
[S]he did not serve as a strong enough vocal
proponent for special programs within her department.
. . . I don't think Mary has the high level of
intellect that is generally — that I generally
associate with the more successful department
[S]he has difficulty getting along with certain
individuals. In my opinion, a department assistant
principal must find a way to get along with every one
of his or her subordinates, because supervision in
that degree can only be achieved when relationships
are strong, and Mary clearly has poor relationships
with a few individuals.
Mary tended to be a bit too easily swayed from one
position to another. She does not seem to have the
strength of conviction, but again, I believe that may
be related to the intellect issue. . . .
Ex. 4 to Goffin Aff. (January 10, 1990).
Plaintiff also makes the conclusory assertion that she had
qualifications superior to those of Ms. Friedman. A review of the
credentials of the two candidates reveals that both had similar
certifications; both had engaged in post-graduate studies and attained
masters degrees; and both had employment experience in teaching and
administrative positions directly related to the
duties of the AP position. Ex. 6, 7 to Goffin Aff. The only differences,
which are favorable to plaintiff, are that plaintiff had been serving as
the AP at James Monroe High School since 1983 and had been employed in
the field of education since 1964, while Ms. Friedman had never before
worked at James Monroe High School as AP and had her first teaching job
in 1969. Id. The evidence is that the panel and Vazquez gave those
factors weight in the selection process, but found other,
nondiscriminatory factors outweighed them. Accordingly, differences in
credentials do not raise a genuine issue of fact material to the
legitimacy of the determination that Ms. Friedman was a superior
Plaintiff also relies on the affirmative action policy of the Board of
Education as a basis for undermining the legitimate reasons proffered by
defendants. The policy's purpose is "to improve the presence of all
minorities at all levels of professional and supportive staff." Pl. 3(g)
at 4, ¶ 7. However, the policy does not mandate the "use [of] any
right formula in evaluating . . . information," but merely directs
personnel to make "recommendations for changes in respective office
staffing patterns" and "to use — administrative skill to best
advantage in making continuous progress in this important area." Pl. 3
(g) at 4-5 ¶¶ 8, 9. According to plaintiff, a reasonable juror could
conclude that the decision to appoint a white over a qualified minority
against the backdrop of this policy had to have been an act of
discrimination even if the white had been determined to be better suited
for the position.
The Court finds plaintiff's theory not to be supported by any evidence
relevant to the employment decision. The affirmative action policy did
not require the defendants to hire a minority over a white candidate who
had been determined to have qualifications which would serve the school
better than the minority candidate. Ex. 1, 5 to Goffin Aff. (January 10,
1990); Pl.Ex. C. The affirmative action policy is not evidence that the
defendants utilized pretextual reasons for selecting Ms. Friedman.
Plaintiff also speculates that Ms. Friedman was hired only because her
husband was an assistant to the Director of the Bureau of Business and
Marketing of the City School District of the City of New York. However,
she presents no evidence to support a connection between plaintiff's
husband or his former boss and the selection process. Mr. Friedman did
meet with Valerio in June 1987 while doing business with James Monroe
High School; however, plaintiff concedes that Valerio was "not involved
in the selection process whatsoever.' Meyerson Aff. at 9, ¶ 31; Ex.
N at 96. Since there must be some evidence of the alleged connection for
an issue of fact to be raised, this contention is summarily dismissed.
Plaintiff also has failed to raise a genuine issue of fact that either
the interviewing panel or Vazquez had a bias against her. The only
difference in the interviews to which plaintiff can point is based on a
statement of Ms. D. Lawson, the parent on the panel, that during the
interview with plaintiff it occurred to Ms. Lawson that the panel had
asked Ms. Friedman about the computer center but had not yet questioned
plaintiff with regard to that topic. Ms. Lawson compensated by asking
plaintiff about the computer center and it is possible that eventually the
other panel members would have gotten around to inquiring about the
computer center. Ms. Lawson's comments do not raise an inference that the
interview panel was biased or predisposed towards Ms. Friedman. Plaintiff
also has presented no evidence of or rationale for either an animus of
Vazquez towards plaintiff or a predisposition of Vazquez towards Ms.
The Court is mindful that it is not the usual case for summary judgment
to be granted for failure to come forward with sufficient evidence of a
pretext. See Smith v. American Express Co., 853 F.2d at 155. However, the
Court grants defendants' motion for summary judgment on the Title VII
claim in this case because plaintiff has only come forward-with
speculation and failed to raise a reasonable inference to contradict the
evidence that legitimate, nondiscriminatory reasons were the
basis for the decision to hire Ms. Friedman rather than plaintiff.*fn3
II. Other Claims
A. Section 1981, Section 1983 and Equal Protection
Summary judgment is also granted in favor of defendants on plaintiff's
section 1981 claim in light of the identity of the standards under
section 1981 and Title VII for determining whether there was intentional
discrimination. See Patterson v. McLean Credit Union, ___ U.S. ___, 109
S.Ct. 2363, 2377, 105 L.Ed.2d 132 (1989). Similarly, plaintiff has failed
to come forward with evidence to establish intentional discrimination
sufficient to support an equal protection violation and therefore
defendants are granted summary judgment on the Section 1983 and equal
protection clause claims.
B. Procedural Due Process
The Court also finds, assuming arguendo that plaintiff can establish
that a due process interest was at stake in the decision to deny her the
position, that she received all the procedures to which she was
constitutionally entitled by the due process clause. She received two
interviews by a panel representing a variety of perspectives. Several
days before the interviews she received notice of the time, place and
nature of the interviews. Pl.Ex. D at 90-91, 103-04. Moreover, the City
provided her with means for investigating whether the decisionmakers acted
based on discriminatory motives. Weighing the government interests, the
private interests, and the risks of an erroneous decision, the Court finds
that the defendants provided sufficient safeguards to assure the
integrity of the hiring process. Mathews v. Eldridge, 424 U.S. 319, 96
S.Ct. 893, 47 L.Ed.2d 18 (1976).
Defendants' motion for summary judgment is granted in its entirety and
plaintiff's cross-motion for summary judgment is denied in its entirety.
The Clerk of the Court is to enter a Judgment closing this case.
IT IS SO ORDERED.