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November 5, 1997


Peter K. Leisure, U.S.D.J.

The opinion of the court was delivered by: LEISURE

LEISURE, District Judge :

 Plaintiff Johnetta Murray, a black Hispanic woman, brought this suit against the Board of Education of the City of New York ("the Board"), as well as Carmen Russo, Leonard Wolff and Martin Weisel (hereinafter, with the Board, "defendants"), claiming that defendants discriminated against her on the basis of her race, gender, and national origin. Plaintiff specifically complains of violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 and 1983 ("§ 1981" and "§ 1983", respectively). Defendants move for partial summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated in this Opinion, the motion is granted in part and denied in part.


 Plaintiff is a black Hispanic woman who began working for the Board in 1980 as a teacher. See Plaintiff's Statement Pursuant to Local Rule 3(g) ("Pl. 3(g)") at PP 1, 41. In September of 1988, plaintiff accepted an assignment from the Office of the Superintendent of the Bronx High Schools of the Board ("Bronx Superintendent's Office") to serve as Interim Acting Supervisor of Special Education ("Acting Supervisor") at Alfred E. Smith High School ("Smith High"). See Pl. 3(g) at P 2. In this position, plaintiff was responsible for the duties of an Assistant Principal of Special Education. See Defendants' Local Rule 3(g) Statement ("Def. 3(g)") at P 7. *fn1"

 As of September 26, 1989, plaintiff was reassigned to Smith High two days per week, to the Bronx Superintendent's Office two days per week, and to Bronx High School of Science ("Bronx Science") one day per week. See Def. 3(g) at P 6. Then, on November 16, 1989, plaintiff was transferred from Smith High to the Bronx Superintendent's Office, spending four days each week at the Superintendent's Office and continuing once each week at Bronx Science. See id. at P 9. On February 2, 1990, she received a letter from defendant Wolff purporting to reassign her to James Monroe High School as a special education teacher. See Letter dated February 2, 1990, annexed as Exhibit 13 to Affidavit of Peter M. Spett In Opposition to Defendants' Motion for Partial Summary Judgment ("Spett Aff.").

 On October 11, 1988, the Board advertised to fill the permanent position of Assistant Principal ("AP"), Special Education, at Smith High. See Def. 3(g) at P 4. The Board's practices and procedures for the appointment of supervisory personnel (including APs) in the New York City public high schools are set forth in Special Circular 30-R and High School Memorandum # 88R ("30R" and "88R", respectively.) See Def. 3(g) at P 11. Pursuant to these regulations, candidates first face a "Level I" screening committee that narrows a field of ten or more to at least three finalists. See Special Circular 30-R at P 11, annexed as Exhibit L to Spett Aff. "Level II" follows, with three or more finalists interviewed by a Chancellor's Committee that is supposed to include only personnel approved by the Chancellor. See id.

 On November 27, 1989, plaintiff applied for the vacant AP-Special Education position at Smith High. See Def. 3(g) at P 13. On December 15, 1988, the Level I screening committee interviewed eleven candidates, including plaintiff, but her name was not among the five forwarded to the Chancellor's Committee for Level II consideration. See id. at PP 14, 17. Plaintiff challenged the Level I findings three days later in a letter to defendant Russo, who served as Superintendent of Bronx High Schools. See id. at P 18. Plaintiff complained of bias on the part of the screening committee as well as procedural irregularities. See Letter dated December 18, 1989, annexed as Exhibit Q to Spett Aff. Nonetheless, a Level II committee interviewed the five remaining candidates on January 23, 1990, with Ms. Maria Reekstin receiving the highest ratings from all on the committee. See Def. 3(g) at P 20. *fn2"

 Chancellor Joseph Fernandez voided the initial Level II results and ordered a new Level II committee to convene to consider the relative merits of all eleven of the original candidates, including plaintiff. See Pl. 3(g) at P 21; see also Memorandum dated February 27, 1990, annexed as Exhibit S ("Ex. S") to Spett Aff. The new round of Level II interviews took place on February 6, 1990, with the new committee again strongly recommending Reekstin's hiring. See Def. 3(g) at P 24; see also Ex. S to Spett Aff. On March 7, 1990, Russo notified Reekstin of her appointment as AP-Special Education at Smith High. See Def. 3(g) at P 30.

 Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on or about September 5, 1990. See id. at P 31. Plaintiff was represented by counsel at the time of the filing. See id. at P 32. Her Charge alleged that her employer, the Board, had demoted her and denied her equal terms and conditions of employment on the basis of her race, gender, color, and national origin, in violation of Title VII. See EEOC Charge of Discrimination, annexed as Exhibit A ("Ex. A") to Declaration of Jay Douglas Dean in Support of Motion For Summary Judgment ("Dean Decl."). Murray complained specifically of her involuntary reassignment to the Bronx Superintendent's Office, and alleged that "Respondent's action denied me future promotional opportunities." Id. She answered "11-16-89" in the space requesting the "Date Most Recent or Continuing Discrimination Took Place." Id. In a letter to the EEOC that addressed Murray's allegations, the Board discussed the hiring of an AP-Special Education for Smith High and attached a copy of the 30R. See Letter to EEOC Investigator dated November 19, 1990, at 6, annexed as Exhibit 17 to Spett Aff. A later letter from the Board to the Investigator, apparently responding to his written questions, noted that Reekstin was selected to fill the AP-Special Education position. See Letter to EEOC Investigator dated December 21, 1990, annexed as Exhibit 51 to Spett Aff.

 On February 7, 1991, EEOC District Director Spencer Lewis issued a Determination stating that "the evidence obtained during the investigation [of Murray's Charge] does not establish a violation of the statute." EEOC Determination, annexed as Exhibit 52 to Spett Aff. The Determination discussed and denied the merit of Murray's allegations of discrimination in her transfer from Smith High; however, it made no mention of the failure to promote Murray to AP-Special Education. See id. The Determinations Review Program reviewed and upheld the Determination, thereby dismissing the Charge. See Determination on Review and Dismissal of Title VII Charge, dated July 8, 1991, annexed as Exhibit B to Dean Decl. *fn3"

 Plaintiff filed pro se a Complaint on September 18, 1991, commencing the instant action. Aided by counsel, she filed an Amended Complaint on August 17, 1994, invoking the Court's jurisdiction under Title VII, § 1981, and 28 U.S.C. §§ 1331, 1343. Defendants now move for partial summary judgment.


 I. Summary Judgment Standard

 The moving party is entitled to summary judgment only if the Court determines that there exists no genuine issue of material fact and that based on the undisputed facts, the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir.), cert. denied, 137 L. Ed. 2d 1027, 117 S. Ct. 1819 (1997); Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995); Celotex Corp v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); see also Tomka, 66 F.3d at 1304. "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Celotex, 477 U.S. at 322-23); see also Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1231 (2d Cir. 1996). The Court's function on a motion for summary judgment is not to try issues of fact, but rather to determine whether there exists a genuine issue of material fact to be tried. See Sutera v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir. 1995).

 In determining whether there exists a genuine issue of material fact, the Court must resolve all ambiguities and draw all justifiable inferences in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Holt, 95 F.3d at 129. The Court should be "especially chary in handing out summary judgment in discrimination cases, because in such cases the employer's intent is ordinarily at issue." Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996); see also Sigmon v. Parker Chapin Flattau & Klimpl, 901 F. Supp. 667, 676 (S.D.N.Y. 1995).

 II. Plaintiff's Title VII Claims

 A. Subject Matter Jurisdiction

 A District Court only has subject matter jurisdiction over Title VII claims that were raised in an EEOC charge "or are based on conduct subsequent to the EEOC charge which is 'reasonably related' to that alleged in the EEOC charge." Butts v. City of New York Dep't of Hous. Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (citing Stewart v. United States Immigration & Naturalization Serv., 762 F.2d 193, 198 (2d Cir. 1985); Almendral v. New York State Office of Mental Health, 743 F.2d 963, 967 (2d Cir. 1984); Goodman v. Heublein, Inc., 645 F.2d 127, 131 (2d Cir. 1981); Kirkland v. Buffalo Bd. of Educ., 622 F.2d 1066, 1068 (2d Cir. 1980)); see also Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994) ("The plaintiff may raise any claim that is 'reasonably related' to those asserted in the EEOC filing, even if that claim was not expressly addressed by EEOC.")

 Before pursuing Title VII claims in a District Court, plaintiffs must exhaust administrative remedies by raising the claims in an EEOC charge. The Court of Appeals for the Second Circuit has explained:

The exhaustion requirement is an essential element of Title VII's statutory scheme . . . . The purpose of the notice provision, which is to encourage settlement of discrimination disputes through conciliation and voluntary compliance, would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC.

 Butts, 990 F.2d at 1401 (internal citations omitted).

 Generally, then, a District Court can only hear plaintiffs' Title VII claims that have been raised previously in an EEOC charge.

 The Second Circuit also has recognized three situations where a District Court may consider claims not raised explicitly in an EEOC charge. See Butts, 990 F.2d at 1402. The first situation occurs when the conduct underlying the previously-unraised claim would fall within the "scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. (quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n.10 (2d Cir. 1978)) (internal citations omitted). Courts have described this situation as a "loose pleading" standard. See, e.g., Minetos v. City University of New York, 875 F. Supp. 1046, 1053 (S.D.N.Y. 1995); Clements v. St. Vincent's Hospital, 919 F. Supp. 161, 165 (S.D.N.Y. 1996). The second situation occurs when the claim not raised in the EEOC charge alleges retaliation by an employer against an employee for filing an EEOC charge. See Butts, 990 F.2d at 1402 (citing Malarkey v. Texaco, Inc., 983 F.2d 1204 (2d Cir. 1993); Owens v. New York City Hous. Auth., 934 F.2d 405, 410-11 (2d Cir. 1991); Goodman, 645 F.2d at 131; Kirkland, 622 F.2d at 1068). The third situation occurs when a plaintiff's previously-unraised claim is predicated on additional "incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Butts, 990 F.2d at 1403 (citing Almendral, 743 F.2d 963 at 967). Neither the second nor third situation is relevant to the instant case.

 The Court can exercise jurisdiction over plaintiff's Title VII claims in the instant case, even insofar as they relate to her allegations that defendants discriminated against her in hiring an AP-Special Education for Smith High. Murray's EEOC Charge states in full:

I was hired as a classroom teacher in September, 1980, and had been promoted into responsible positions during the course of my career. In 1988 I became Assistant Principal. On November 16, 1989, I was involuntarily assigned at the Superintendent's office because I was accused of insubordination and having poor performance. I deny the accusation. On the other hand, Caucasian non-Hispanic males who had been insubordinate were not functionally demoted as I have been. Respondent's action denied me future promotional opportunities.
I believe that I have been demoted and denied equal terms and conditions of employment because of my race (Black), national origin (Hispanic) and sex (female), in violation of Title VII of the Civil Rights Act of 1964, as amended.

 Ex. A to Dean Decl.

 As noted earlier, the Charge is dated September 5, 1990, lists November 16, 1989, as the date the most recent discrimination had taken place, and was prepared by Murray with the assistance of counsel. See supra at *3.

 While the Charge focuses on Murray's involuntary reassignment from Smith High to the Bronx Superintendent's Office, the Charge also mentions that she has been denied promotional opportunities. Nonetheless, this statement alone cannot satisfy the exhaustion requirement and vest subject matter jurisdiction over the "failure to promote" claim in this Court. In finding a lack of subject matter jurisdiction over a Title VII claim by a plaintiff who had asserted in her EEOC charge that she had been "denied promotional opportunities and consideration based on my race and sex," the Second Circuit cautioned:

Were we to permit such vague, general allegations, quite incapable of inviting a meaningful EEOC response, to define the scope of the EEOC investigation and thereby predicate subsequent claims in the federal lawsuit, such allegations would become routine boilerplate ...

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