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MURPHY v. BOARD OF EDUCATION OF THE ROCHESTER CITY SCHOOL

July 10, 2003

DONALD MURPHY, PLAINTIFF,
v.
BOARD OF EDUCATION OF THE ROCHESTER CITY SCHOOL DISTRICT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: David Larimer, Chief Judge, District

DECISION AND ORDER

INTRODUCTION

"Parvis e glandibus quercus": "tall oaks from little acorns grow." Like the proverbial oak tree, this case has grown from a simple employment dispute over one teacher's interschool transfer, into a gargantuan, broad-based campaign against an entire school system. Although an oak tree, as a provider of shade and a symbol of strength, might seem an inapt simile for this torturous case, it is fitting in another sense as well, for the mountains of paper that have been expended in this litigation probably amount to a good-sized tree's worth. It is more than unfortunate that what should have been a straightforward case involving a discrete set of facts and a few individuals has been transformed into a vehicle by which plaintiff Donald Murphy ("Murphy") and his attorney have sought to launch a virtual crusade, involving nearly every aspect of plaintiff's employment (and a good many things that have nothing at all to do with plaintiff or his employment), against his employer, the Rochester City school District ("RCSD or "the District"), plaintiff's labor union, and over two dozen individuals, thereby necessitating the expenditure of untold resources by the parties, their attorneys, and this Court.

This action is part of a group of cases against the Rochester City School District and other defendants, filed by the same attorney, alleging a host of civil rights violations and other unlawful acts of every stripe against the plaintiffs, all of whom are or were teachers employed by the RCSD. Several of those actions have been dismissed after the Court granted summary judgment in favor of the defendants. See Seils v. RCSD, 192 F. Supp.2d 100 (W.D.N.Y. 2002), and Bliss v. RCSD, 196 F. Supp.2d 314 (W.D.N.Y. 2002) (dismissing three consolidated cases).*fn1 Defendants have moved for summary judgment in this action as well, and plaintiff has moved for "partial" summary judgment on the issue of liability, and for injunctive relief. Defendants' motions are granted and the complaint is dismissed.

BACKGROUND

This action in some ways relates to another action, Murphy v. Board of Educ. of RCSD, 93-CV-6158L, filed a decade ago by plaintiff in 1993.*fn2 In that action, plaintiff, a teacher in the RCSD, sued the District, the Rochester Teachers Association ("RTA"), and six individuals, alleging various violations of his civil rights, as well as a number of claims under New York law, in connection with certain events that occurred in the late 1980s and early 1990s.*fn3 The Court dismissed that action in December 1997 after being informed by the parties that the case had settled.

In October 1999, however, plaintiff filed a motion seeking to vacate the Court's dismissal order and to compel defendants to comply with the settlement agreement. In addition, plaintiff sought to file a "supplemental" complaint, and add additional parties. The Court denied that motion for lack of subject matter jurisdiction on December 16, 1999, on the grounds that the action was a contract dispute between two residents of New York and, therefore, there was no diversity or other basis for federal jurisdiction, stating that "[i]f plaintiff wishes to file a new action in federal court, he may do so assuming that he has the requisite federal jurisdiction and assuming such a complaint does not breach the terms of the settlement agreement between the parties." Murphy v. Board of Educ. of RCSD, 79 F. Supp.2d 239, 242 (W.D.N.Y. 1999).

Plaintiff then filed this action on January 24, 2000. In addition to the RCSD and the RTA, plaintiff has also sued the Board of Education of the RCSD ("the Board"), the individual members of the Board (nine of whom are named in the complaint), and nineteen other individuals who either are or were employed by the RCSD or the RTA. The amended complaint, which was filed on January 27, 2000, asserts twelve causes of action, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1983 and 1985(3); § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; the New York State Human Rights Law ("HRL"), Exec. L. § 796; the New York Civil Rights Law ("CRL"); and several other theories under New York common law and the New York Constitution. Plaintiff seeks a sweeping array of various forms of relief, including: a declaratory judgment; injunctive relief, together with a "mechanism for the enforcement of the injunctions" based upon a detailed plan to be drafted by defendants showing precisely how they will cease their alleged discrimination against plaintiff; back pay, front pay, and benefits; a whopping $1.75 million in "compensatory" damages; punitive damages; pre- and post-judgment interest; and attorney's fees and costs.

DISCUSSION

I. Summary Judgment — General Standards In Discrimination Cases

The standard for deciding summary judgment motions is well established. Rule 56(c) provides that a motion for summary judgment shall be granted if the pleadings and supplemental evidentiary materials "show 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." Fed.R.Civ.P. 56(c). Under the rule, the burden is on the moving party to inform the Court of the basis for its motion and to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party has carried its burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[T]he non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed.R.Civ.P. 56(e)). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Id. When reviewing the record to determine whether a rational fact-finder could find for the non-moving party, however, all reasonable inferences must be drawn in favor of the non-moving party. Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir. 1998).

The general principles underlying a motion for summary judgment fully apply to discrimination actions. Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000), petition for cert. filed, 71 U.S.L.W. 3680 (Apr. 17, 2003). Although courts are understandably cautious about granting summary judgment in cases where motive, intent or state of mind is at issue, Montana v. First Federal Savings and Loan Ass'n of Rochester, 869 F.2d 100, 103 (2d Cir. 1989); Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988), "the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to . . . other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829 (1985); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.) ("It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases"), cert. denied, 534 U.S. 993 (2001); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 40 (2d Cir. 1994) ("summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact"). Consequently, once the moving party has met its burden, the non-moving party in a discrimination action must come forward with evidence upon which a rational fact-finder could return a verdict in his favor. For a plaintiff in a discrimination case to survive a motion for summary judgment, he must do more than present "conclusory allegations of discrimination," Meiri, 759 F.2d at 998; he must offer "concrete particulars" to substantiate his claim. Id.

II. Plaintiff's Discrimination Claims Against the RCSD

A. Claims Based on Plaintiff's Transfers, Assignments, Etc.

Plaintiff, a white male born in 1956, alleges that defendants have discriminated against him on account of his "race, and/or sex, and/or age, and/or national origin, and/or disability. . . ." Amended Complaint ¶ 45. It is difficult to say precisely how he alleges that defendants have done so, however, because in setting forth his allegations of discrimination plaintiff has managed to be simultaneously prolix and vague. Plaintiff has essentially catalogued every employment-related grievance (of which there are many) from December 31, 1997 to the time of the filing of the complaint and beyond, and alleged in conclusory fashion that these resulted from defendants' "policy, pattern, practice, custom and usage" of discriminating against whites, males, older employees, etc. Since plaintiff's papers for the most part do not differentiate between these claims, they will be discussed collectively.

I also note that while plaintiff alleges all these various types of discrimination, some of them (such as age discrimination)*fn4 receive scant, or no, mention in plaintiff's motion papers. This suggests that such claims are little more than boilerplate allegations that bear little or no relation to the facts of this case. This tack is also indicative of the scattershot approach taken by plaintiff. No instance of perceived ill treatment is too trivial to be listed among the alleged violations of plaintiff's rights, and every one of those instances is ascribed to discrimination, which in turn is asserted, in sweeping and conclusory fashion, to be based on plaintiff's membership in virtually every class protected by law: his sex, race, national origin, age, and alleged disability.

This alone does not mean, of course, that plaintiff's allegations are untrue. I suppose that it is possible that plaintiff has been unfortunate enough to be employed in a school district where virtually everyone in a position of authority, including his own union leaders, is extraordinarily prejudiced, against white people, men, older persons, and the disabled, not to mention persons of certain national origins.*fn5 It is even possible that defendants harbor such prejudices notwithstanding the fact that many of them fall into these very categories.*fn6 To survive summary judgment, however, plaintiff must present some evidence of such discrimination. He has failed to do so and, therefore, the complaint must be dismissed.

Plaintiff's discrimination claims are subject to the well-known burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. First, the plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996), cert. denied, 520 U.S. 1228 (1997). In order to establish a prima facie case, plaintiff must show: (1) that he belongs to a protected class; (2) that he is qualified for his position; (3) that he suffered an adverse employment action; and (4) that the surrounding circumstances give rise to an inference of discrimination on the basis of his membership in that class. Weinstock, 224 F.3d at 42; Chambers, 43 F.3d at 37. If the plaintiff establishes the prima facie case, "the burden of production shifts to the employer to articulate a legitimate, clear, specific and non-discriminatory reason" for the adverse action. Holt, 95 F.3d at 129. If the defendant satisfies this burden of production, the plaintiff has the ultimate burden to prove that the employer's reason is merely a pretext for discrimination. See id. "In order to survive a motion for summary judgment, at the third step plaintiff must put forth adequate evidence to support a rational finding that the legitimate non-discriminatory reasons proffered by the employer were false, and that more likely than not the employee's . . . [membership in a protected class] was the real reason" for the adverse action. Id.*fn7

Although I am not convinced that plaintiff has even made out a prima facie case of discrimination, because he has not alleged "surrounding circumstances giv[ing] rise to an inference of discrimination on the basis of his membership" in a protected class, I will assume arguendo that he has done so, since defendants have proffered legitimate, non-discriminatory reasons for their actions. See United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) ("Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant"); Wado v. Xerox Corp., 991 F. Supp. 174, 187 (W.D.N.Y. 1998) (where defendant proffered legitimate, nondiscriminatory reasons for plaintiffs' terminations, court would "assume that [each plaintiff] ha[d] made out a prima facie case, and proceed to consider whether the plaintiff ha[d] presented sufficient evidence to create a triable issue of fact about whether Xerox's proffered reason [wa]s a pretext for discrimination"), aff'd, 196 F.3d 358 (2d Cir. 1999). Because defendants have proffered such reasons (which will be discussed in more detail below), however, the burden is on plaintiff to come forward with sufficient evidence to give rise to an issue of fact about whether defendants' proffered reasons are pretextual.

Plaintiff has failed utterly to meet that burden. Many of his allegations concerning alleged discrimination do not even involve plaintiff directly. Instead, plaintiff goes on at length about alleged systemic (mostly race) discrimination throughout the RCSD, without relating these allegations to any action taken against plaintiff. For example, plaintiff asserts that "RCSD personnel have instructed that only RCSD students `of color' be given invitations to participate in the RCSD's PRISM Program," Plaintiff's Rule 56 Statement ¶ 536 (emphasis added), which is a program intended to encourage students to pursue careers in medicine.*fn8 In addition, as in Bliss, plaintiff devotes considerable discussion to the District's alleged use of a methodology known as the "Singleton formula" in the hiring, placement and transfer of employees, but he proffers no evidence that he was in any way affected by the use of this formula. See Bliss, 196 F. Supp.2d at 327 (noting that plaintiff in that action "does not allege that she was adversely impacted by the application of such formula within any of the last eleven years prior to the commencement of this action"). As both the Second Circuit and the Supreme Court have stated, however, "at an irreducible minimum, Article III requires the party who invokes the court's authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Vermont Right to Life Committee, Inc., v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000) (quoting Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982)) (internal quotation marks omitted). Plaintiff therefore lacks standing to challenge the alleged use of the Singleton formula. Similarly, Murphy's complaints about the PRISM Program that affects students is irrelevant since it does not affect him.

This is not to say that evidence of discrimination against others can never be relevant to an individual's discrimination claim, but at some point there must be some logical connection drawn between that other discrimination and the alleged discrimination against the plaintiff. As I stated in Seils, plaintiff's allegations about racial discrimination within the RCSD "relate to matters occurring in other places, at other times, sometimes years previously and involving matters wholly unrelated to the claims at issue here." Seils, 192 F. Supp.2d at 115-16.

Equally unavailing is plaintiff's attempt to use "statistical" evidence to bolster his claim.*fn9 Plaintiff cites the results of a study published by the Eric Clearinghouse on Teaching and Teacher Education, showing that in 1990-91, 9.2% of public school teachers in the United States were Black/African American, and 3.1% were Hispanic. Plaintiff's Rule 56 Statement, Ex. 241. Plaintiff also states that a review of the 2000 and 2001 yearbooks from Benjamin Franklin High School ("Franklin") (where plaintiff currently teaches) indicates that "[t]he new full time hires and transfers into the Franklin Career Academy are predominantly minorities — 9 out of 15 persons," or 60%. Plaintiff's Rule 56 Statement ¶ 596. Plaintiff then argues that the disparity between that 60% figure and the 12% figure reported in the Eric Clearinghouse study "reflect[s] an ongoing pattern, practice, custom and usage of the RCSD and the RTA hiring and placing teachers by race or national origin." Plaintiff's Rule 56 Statement ¶ 597.

That plaintiff could even make such an argument is little short of astonishing. To compare the results of a 1991 nationwide study with a sampling of fifteen teachers*fn10 taken from a high school yearbook ten years later is absurd enough. See Mayor of City of Philadelphia v. Educational Equality League, 415 U.S. 605, 621 (1974) (statistics regarding racial composition of thirteen-member school board nominating panel were meaningless); Coleman v. Prudential Relocation, 975 F. Supp. 234, 240 (W.D.N.Y. 1997) (statistical evidence about reduction in force in which nine out of nineteen employees were terminated was meaningless due to small number of people involved). With no knowledge of the circumstances relating to the hiring or placement of those fifteen persons, however (such as who else applied for their positions), this "evidence" is probative of nothing whatsoever.

To the extent that plaintiff does discuss his own individual circumstances, his claim also fails for the simple reason that he has not presented evidence that would support a finding that he suffered any adverse employment action, under circumstances giving rise to an inference of discrimination. Weinstock, 224 F.3d at 42.

First, most of the acts of which plaintiff complains cannot reasonably be considered adverse for purposes of a discrimination claim. Plaintiff's major source of discontent appears to be his various transfers to and from certain schools, particularly his transfers to Thomas Jefferson Middle School ("Jefferson"), where plaintiff taught during several different periods of time. These various transfers and assignments over the years cannot be considered "adverse," however. They may not have been to plaintiff's liking, but more than that is required. See Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 771 n. 8 (5th Cir. 2001) ("the focus is on the objective qualities of the positions, rather than an employee's subjective preference for one position over another. That subjective preference, alone, is an insufficient basis for finding an adverse employment action"); Davis v. Town of Lake Park, Florida, 245 F.3d 1232, 1239 (11th Cir. 2001) ("the employee's subjective view of the significance and adversity of the employer's action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances"); Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999) ("Mere idiosyncracies of personal preference are not sufficient to state an injury"); Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1448 (11th Cir. 1998) (finding "no case, in [the 11th] or any other circuit, in which a court explicitly relied on the subjective preferences of a plaintiff to hold that plaintiff had suffered an adverse employment action"); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) ("not everything that makes an employee unhappy is an actionable adverse action"); Flaherty v. Gas Research Institute, 31 F.3d 451, 456 (7th Cir. 1994) (a "bruised ego" is not enough). As the Seventh Circuit has stated:

Obviously a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action. A transfer involving no reduction in pay and no more than a minor change in working conditions will not do, either. Otherwise every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit. The Equal Employment Opportunity Commission, already staggering under an avalanche of filings too heavy for it to cope with, would be crushed, and serious complaints would be lost among the trivial.
Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996) (cited with approval in Galabya v. New York City Bd. of Educ., 202 F.3d 636, 641 (2d Cir. 2000)). If ever there was a case of a "chip-on-the-shoulder" plaintiff, this is it.

To be adverse, an employment action must involve the deprivation of "some `tangible job benefits' such as `compensation, terms, conditions or privileges' of employment.'" Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quoting Karibian v. Columbia Univ., 14 F.3d 773, 778 (2d Cir.), cert. denied, 512 U.S. 1213 (1994)). Adverse employment actions are considered material if they are "of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse." Torres v. Pisano, 116 F.3d 625, 632 (2d Cir.), cert. denied, 522 U.S. 997 (1997).

Here, plaintiff has failed to present any evidence, aside from his own personal preferences, showing that any of his transfers or reassignments could be considered adverse under these standards. While I recognize that a transfer may constitute an adverse action under some circumstances, such as where it "results in a change in responsibilities so significant as to constitute a setback to the plaintiff's career," Galabya, 202 F.3d at 641, no such circumstances exist here. Plaintiff asserts that his displacement from Franklin caused him to lose a number of committee posts, such as memberships on Franklin's School-Based Planning Team, the Technology Committee, and the Building Committee, and his position as yearbook advisor, but these were simply ancillary to his employment at Franklin. Plaintiff's "loss" of those positions was merely an inevitable consequence of his reassignment. It is a given that if an employee is transferred from one place of employment to another, those responsibilities that are inherently and inextricably tied to the former place of employment cannot be transferred with him. It is unremarkable, for example, that plaintiff was no longer the yearbook advisor at Franklin after he was transferred elsewhere. That does not mean that he suffered some loss amounting to an adverse action; it was, instead, simply a necessary corollary of his transfer.

Although plaintiff claims that his removal from Franklin "has been devastating to [him] and [his] career," Plaintiff's Aff. ¶ 125, he has not presented facts to support that assertion, or to rebut the District's contention that plaintiff's transfers did not result in any change in his job description, days or hours of employment, duties, salary or benefits, or opportunities for promotion. Evangelista Aff. ¶¶ 59-60. Plaintiff may have been subjectively "devastat[ed]" by his transfer, but as explained, that is not sufficient to state a claim. "[T]he plaintiff must show that the transfer created a `materially significant disadvantage.'" Id. (quoting Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994)). Plaintiff has failed to do so.

There is one action taken toward plaintiff that could be considered adverse: he was suspended, with pay, on October 1, 1998, and did not teach for the rest of that academic year. The suspension occurred after Jefferson's then-Acting Principal Larry Ellison reported to the RCSD's human resources department that plaintiff had made certain comments to him, including "I hate middle school students" and "they know I am going to hurt a kid," and that plaintiff had improperly sent several special education students out of his classroom, allowing them to roam the halls freely. Ellison Aff. (Docket #200) ¶¶ 11, 23-27. Although plaintiff was informed that he was being suspended pending an investigation, see RCSD's Ex. 9, it appears that no further action was taken other than to find an alternative placement for plaintiff. Affidavit of Alessio Evangelista (Docket #198) ¶ 74. Plaintiff continued to receive full pay and benefits throughout this period.*fn11

That claim, however, is time-barred. Under Title VII, a claimant must file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") within 300 days after the alleged discriminatory event. 42 U.S.C. § 2000e-5(e). When a plaintiff has not done so, the claim is time-barred. Butts v. City of New York Dept. of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993). "This statutory requirement is rigorously enforced and bars untimely claims of discrimination." Talyansky v. Mercury Print Productions, Inc., 25 F. Supp.2d 151, 153 (W.D.N.Y. 1998), aff'd, 199 F.3d 1323 (2d Cir. 1999), cert. denied, 528 U.S. 1118 (2000).

In the case at bar, plaintiff filed a charge with the EEOC on October 18, 1999. See RCSD's Ex. 63. Therefore, plaintiff's claims for acts that occurred prior to December 22, 1998, i.e. more than 300 days before October 18, 1999, are time-barred. Since plaintiff's suspension occurred in October 1998, it is time-barred. See National R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2072 (2002) (discrete discriminatory acts are not actionable if they occurred outside of the time when a plaintiff files his EEOC charge, even if the acts are related to acts alleged in timely filed charges); Elmenayer v. ABF Freight Syst., Inc., 318 F.3d 130, (2d Cir. 2003) (applying Morgan to find that employer's rejection of employee's proposed accommodation of his religious practices consisted of discrete acts rather than a continuing violation, and claim arising out of that rejection was therefore untimely).*fn12

In addition to these defects, none of the circumstances surrounding plaintiff's transfers, his suspension, or any other actions taken by defendants toward plaintiff, suggest that they were motivated by race discrimination. For instance, in the Spring of 1998, at which time plaintiff was teaching at Franklin, the District decided to reduce the number of teaching positions at Franklin. This transfer appears to have been the principal action that led to this lawsuit. Defendants contend that this decision was motivated by declining student enrollment and budgetary constraints. In a memorandum dated May 11, 1998, Maurice Bell, RCSD's Supervising Director of Education, informed Franklin Principal Clark Powell that based on a projected enrollment of 957 students for the coming academic year, and the student-teacher ratio of 22.15:1 that had been approved in the budget process, Franklin was being assigned 43.2 full-time equivalent ("FTE") regular teachers for the coming year. RCSD's Exhibits (Docket #206), Ex. 34. The previous year, utilizing almost the same student-teacher ratio, but with a projected enrollment of 1165 students, Franklin had been assigned 52.6 FTE teachers. RCSD's Ex. 33.

Powell was thus forced to eliminate a number of teaching positions at Franklin. In doing so, he decided to reduce the number of teachers in several tenure areas, including English, foreign languages, math, social studies, science and technology. Powell Aff. (Docket #199), ¶ 16. Powell states in his affidavit that based on a number of considerations, he decided to displace two of Franklin's three technology teachers. The two teachers chosen to be displaced were Thomas DeMond, a black male born in 1950, and plaintiff, who, as stated, was born in 1956. The sole remaining technology teacher was Robert Kowalski, a white male born in 1945, who was also the most senior technology teacher, having been hired in 1970. DeMond, who was hired in 1991, had the least seniority among the three technology teachers, followed by plaintiff, who was hired in 1984. Defendants contend, and plaintiff has presented no evidence to the contrary, that since 1998, there has been only one technology teacher at Franklin, so plaintiff was never "replaced" there by anyone.

In response, plaintiff alleges that "the RCSD defendants' proffered reason for plaintiff's displacement from his technology position — declining Franklin enrollment — is proven false by two documents: a March 9, 1998 memorandum from Bell to then-Superintendent Clifford Janey, and a document entitled "Position Control Template" ("template") for Franklin that appears to have been prepared for, or used at, an RCSD meeting on May 27, 1998 to discuss middle- and secondary-school staffing for the coming academic year. Plaintiff's Exs. 38, 39. The March 9 memo states in part, "As per your request, please find the staffing pattern, by position title, of Franklin High School from the 1993-94 school year through the current school year." The attached chart indicates a total enrollment at Franklin of 1179 (957 "regular" and 222 special education students) for 1997-98. Plaintiff's Ex. 38.

The May 27, 1998 template states, in part, that enrollment at Franklin for 1998-99 was projected to total 1268 (957 regular and 311 special education students). Plaintiff's Ex. 39. Thus, plaintiff argues, enrollment at Franklin was expected to increase, not decrease, in 1998-99. Although defendants contend that the numbers contained in Bell's March 9 memo to Janey were erroneous*fn13, whether they were or not is really beside the point, because it is beyond dispute that Bell did tell Powell — the person who made the decision to displace plaintiff (as well as DeMond and other teachers) — that Franklin's enrollment was projected to decrease in the Fall of 1998, and that the number of FTE teachers allocated to Franklin would drop from 52.6 to 43.2, based on the same student-to-teacher ratio as the year before. Thus, as far as Powell was concerned, staffing cuts had to be ...


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