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ROSARIO-OLMEDO v. COMMUNITY SCHOOL BD.

January 29, 1991

CARMEN GLORIA ROSARIO-OLMEDO, PLAINTIFF,
v.
COMMUNITY SCHOOL BOARD FOR DISTRICT 17, DOROTHY BURKE, ALBERT BLOCH, OSCEOLA FLETCHER, ABRAHAM M. FLINT, AND MAURICE GUMBS, DEFENDANTS.



The opinion of the court was delivered by: Glasser, District Judge:

MEMORANDUM AND ORDER

Facts:

Many of the facts of this case are not in dispute. Plaintiff has taught at P.S. 316 (and its predecessor school P.S. 42) since 1963. In the fall of 1988, she applied for the position of assistant principal. Pursuant to regular procedure, applicants for that position are evaluated by a "Screening Committee" named by the Community School Board ("CSB" or "the Board"). The members of that committee are the community superintendent (non-voting), representatives of the CSB, and representatives of the parent association of the school involved. The screening committee's role is to review resumes and conduct interviews, and to submit the names of one or more candidates to the superintendent. The superintendent then submits one or more of those names to the CSB for final selection. In a non-public executive meeting of the Board, a "readiness vote" is taken by which it is determined whether five members of the nine-member CSB are ready to vote for one candidate at the next public session. The final appointment is then made by a majority vote of the CSB at a public session.

To fill the position of assistant principal at P.S. 316, the superintendent submitted three names to the CSB, in order of preference. They were (1) Carmen Olmedo, (2) Barbara Gibbs, and (3) Edwin Rosario. Olmedo and Rosario are hispanic; Gibbs is black. At the May 17, 1989 non-public meeting, a readiness vote was taken, in which three members voted "ready" to select Olmedo and five members voted "ready" to select Gibbs. Plaintiff then filed this lawsuit and unsuccessfully sought a preliminary injunction preventing the CSB from voting Gibbs into the position in public session. Following the Magistrate's denial of the injunction for failure to show irreparable harm, and Judge McLaughlin's affirmance of that denial, the CSB on September 27, 1989 voted in public session to appoint Gibbs. Voting for the appointment of Gibbs were CSB members Dorothy Burke, Claudine Corbanese, Abraham Flint, Gina Gill, Maurice Gumbs, Sylvester Leaks, and James Malone. Voting against was Agnes Green. Not present and not voting was Albert Bloch.

The Title VI Claim

Title VI of the Civil Rights Act of 1984, 42 U.S.C. § 2000d, states:

  No person in the United States shall, on the
  ground of race, color, or national origin, be
  excluded from participation in, be denied the
  benefits of, or be subjected to discrimination
  under any program or activity receiving federal
  financial assistance.

Section 2000d-3 states:

  Nothing contained in this subchapter shall be
  construed to authorize action under this
  subchapter by any department or agency with
  respect to any employment practice of any
  employer, employment agency, or labor
  organization except where a primary objective of
  the Federal financial assistance is to provide
  employment.

(Emphasis added.) As a threshold requirement for an action under these sections, the federal funds allegedly giving rise to the action must have the "primary objective" of providing employment. See Caufield v. Board of Education of the City of New York, 632 F.2d 999 (2d Cir. 1980). Courts have dismissed complaints for failure to specify when funds were received, what they were used for, and whether their primary objective was to provide employment. For example, in Richards v. New York State Dept. of Correctional Services, 572 F. Supp. 1168 (S.D.N.Y. 1983), the court dismissed a claim with leave to replead:

  Due to the limited facts stated by plaintiffs
  with regard to their Title VI claims, this Court
  is unable to determine whether plaintiffs have
  stated a claim that satisfies this requirement.
  The amended complaint merely alleges that the
  defendants have violated Title VI by reason of
  their use of federal financial assistance in
  connection with their employment policies and
  procedures. It is important to note that
  plaintiffs fail to state that the primary
  objective of the federal financial assistance
  received by the Department was to provide
  employment. Moreover, the plaintiffs have not
  indicated when and how it used them. Faced with
  these circumstances, courts have not hesitated to
  dismiss for failure to state an essential element
  of the claim. See Sabol v. Bd. of Educ.,
  510 F. Supp. 892, 896 (D.N.J. 1981); Clark v. Louisa Co.
  School Bd., 472 F. Supp. 321, 323 (E.D.Va. 1979).

Id. at 1175 (citation omitted). In Weir v. Broadnax, 1990 WL 195841, 1990 U.S.Dist. Lexis 15795 (S.D.N.Y.), the court also dismissed a claim under Title VI, with leave to replead, when the complaint did allege that the programs in question received federal funding but failed to "stat[e] explicitly" that that federal funding was primarily targeted at providing employment.

Plaintiff's complaint in this case fails to allege the receipt of federal funds, their use, and whether their primary purpose is employment. In this motion, which is for summary judgment, the court has been presented with matter outside the pleadings, but such matter has not been enlightening on the issue of receipt and purpose of federal funds. Virtually no evidence has been submitted to demonstrate what federal funds are received and used in any connection with defendants' programs or plaintiff's job. The claim is therefore dismissed, with leave to ...


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