II. The Appointment of Palmore as Assistant Principal
Fairbairn, a white female, has challenged the Board's appointment of Palmore, a black male, to the post of assistant principal of Bellport Middle School, on the grounds that it intentionally discriminated against her because of her race and sex. The amended complaint contained claims of race discrimination at count III (42 U.S.C. § 1981), count IV (equal protection), and Count IX (New York's Human Rights Law, codified at Executive Law §§ 290-301), and claims of sex discrimination at count V (equal protection), count VI (Title IX of the Education Amendments of 1972, codified at 20 U.S.C. §§ 1681-1688), count VII (Title VII), and count X (New York's Human Rights Law).
The burdens of proof and production which govern disparate treatment claims under Title VII, St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993), likewise are applicable to plaintiff's claims of employment discrimination under § 1981, id. at 2747 n.1 (citing Patterson v. McLean Credit Union, 491 U.S. 164, 186, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989)); the equal protection clause, Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988) (sex), Riordan v. Kempiners, 831 F.2d 690, 695-96 (7th Cir. 1987) (sex), Daniels v. Bd. of Educ., 805 F.2d 203, 207 (6th Cir. 1986) (race); New York's Human Rights Law, Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir.), cert. denied, 121 L. Ed. 2d 46, 113 S. Ct. 82 (1992), Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir. 1992); and Title IX, Preston v. Virginia ex. rel. New River Community College, 31 F.3d 203, 206-07 (4th Cir. 1994). Accordingly, Fairbairn initially was required to establish a prima facie case of discrimination, that (1) she belonged to a protected class, (2) she applied and was qualified for a job for which her employer sought applicants, (3) that despite her qualifications, she was rejected, and (4) that after rejection, the post remained open and the employer continued to seek applicants from persons of plaintiff's qualifications. Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir. 1994); Sweeney v. Research Found. of the State Univ. of New York, 711 F.2d 1179, 1185 (2d Cir. 1983).
Fairbairn was a member of a protected class, based both on her race and sex. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278-80, 49 L. Ed. 2d 493, 96 S. Ct. 2574 (1976); Lucas v. Dole, 835 F.2d 532, 533-34 (4th Cir. 1987), cert. denied, 494 U.S. 1026 (1990); Kelly v. Am. Fed'n of Musicians' and Employers' Pension Welfare Fund, 602 F. Supp. 22, 24 n.2 (S.D.N.Y.), aff'd, 795 F.2d 79 (2d Cir. 1985). Furthermore, plaintiff, who possessed a Ph.D and as well had tenure as a principal, was qualified for the assistant principal position at Bellport Middle School. Thus, plaintiff has made out a prima facie case of discrimination.
Defendants then had the burden to articulate legitimate, non-discriminatory reasons for their employment decision. In a memorandum dated May 22, 1992, the middle school committee which interviewed the candidates for the assistant principal post, stated that Palmore was the committee's unanimous choice as he possessed a "broad cultural background that was needed at the middle school. He would be an excellent male role model for students." The committee also favored Palmore because he was viewed to have a better relationship with the faculty and students than Fairbairn, and that he was more effective with student discipline than Fairbairn.
Although it is unclear what exactly the committee meant when it found that Palmore possessed a "broad cultural background," its reliance on the fact that Palmore would be an excellent male role model, has, at a minimum, raised a material issue as to whether the judgment to hire Palmore, as opposed to Fairbairn, was based on impermissible, discriminatory reasons. In Hicks v. Dothan City Bd. of Educ., 814 F. Supp. 1044 (M.D. Ala. 1993), the plaintiff was a white, female teacher, who claimed the school system passed her over for a principal position, in favor of a black male named Jones. The school board's personnel director claimed that he favored Jones because of his "experience . . . in handling disciplinary problems," but also admitted that he relied on the fact that Jones would be a "black male role model." Id. at 1047. In its decision to grant preliminary injunctive relief to the plaintiff, the court stated:
Hicks has presented evidence sufficient to show that an illegitimate criterion was a motivating factor in the school board's selection of Jones over her for the principalship at the Alternative School. Fain [the personnel director] admits that one criterion in recommending Jones was that Jones was "black and male" and that having a black male role model was desired. Although Fain stated that this criterion was not the major reason for recommending Jones, the court preliminarily finds that the criterion was a motivating factor in Fain's decision. Hicks's sex thus played, at least, a motivating role in the school board's rejection of her. The school board argues that having a black male role model would be beneficial for black male students. At this stage of the litigation, however, the school board has made no showing that such conscious, albeit perhaps benign, discrimination is permissible under Title VII and the fourteenth amendment. Indeed, for example, the Supreme Court has held that a perceived need for "minority role models" does not justify a school board's policy of extending to black teachers a preferential protection against layoffs. Wygant v. Jackson Board of Educ., 476 U.S. 267, 274-76, 106 S. Ct. 1842, 1847-48, 90 L. Ed. 2d 260 (1986) (plurality opinion by Powell, J., joined by Burger, Rehnquist, and O'Connor, JJ.); id. at 294, 106 S. Ct. at 1858 (White, J., concurring in judgment). There is therefore a substantial likelihood that the court will find the school board liable under Title VII.
814 F. Supp. at 1048.
On a motion for summary judgment, the court does not find facts, but merely endeavors to determine whether material issues exist for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In light of the committee's memorandum, genuine and material issues have been raised as to whether the refusal to hire Fairbairn for the assistant principal post was founded on impermissible, discriminatory reasons. Compare Jatczak v. Ochburg, 540 F. Supp. 698 (E.D. Mich. 1982) (court rejected defendants' claim that male role model was a bona fide occupational qualification for child care position) with Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 315, 90 L. Ed. 2d 260, 106 S. Ct. 1842 (1986) (Stevens, J., dissenting) ("In the context of public education, it is quite obvious that a school board may reasonably conclude that an integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white, or nearly white faculty."). Accordingly, the court denies defendants' motion for summary judgment on plaintiff's claims that she was discriminated against when she was denied the assistant principal job.
The court denies plaintiff's motion for partial summary judgment, except it strikes the affirmative defenses defendants' asserted in their answer. Defendants' motion for summary judgment also is denied, except on count II of the amended complaint. The parties previously were notified that the trial will commence on March 20, 1995. Plaintiff's counsel shall forward his component of the pre-trial order to defendants' counsel by February 3, 1995; defendants' counsel shall provide plaintiff's counsel with his component by February 10, 1995; and the final pre-trial order shall be filed with a courtesy copy by February 17, 1995. Proposed jury charges shall be filed with a courtesy copy by March 12, 1995.
Dated: Brooklyn, New York
January 11, 1995
HONORABLE DAVID G. TRAGER
United States District Judge