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Ximines v. George Wingate High School

July 25, 2006


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



This action is brought by Enid Ximines ("Plaintiff"), a public high school teacher, against George Wingate High School ("GWHS") and the New York City Department of Education ("D.O.E." or "Defendant"). Plaintiff alleges that she has been denied promotional opportunities because of her age and retaliated against for lodging complaints about defendants' age-related discriminatory conduct. The Complaint states causes of action under 29 U.S.C. § 621, et seq., (the Age Discrimination in Employment Act, "ADEA"), the New York State Human Rights Law § 290, et seq., ("NYSHRL"), and New York City's Human Rights Law § 8-107, et seq. ("NYCHRL"). Before the Court are Plaintiff's motion to amend the Complaint pursuant to Fed. R. Civ. P. 15 and Defendant's motion for judgment on the pleadings in accordance with Fed. R. Civ. P. 12(c).


The Court has subject matter jurisdiction over Plaintiff's ADEA claims, pursuant to 28 U.S.C. § 1331. The Court has supplemental jurisdiction over Plaintiff's state and city law claims under 28 U.S.C. § 1367.

Personal jurisdiction is properly exercised over defendant D.O.E. because it is located, conducts operations, transacts business, and provides services within New York, and its principal place of business is located in New York City.

GWHS, however, is not a sueable entity. N.Y. Educ. L. § 2590-g(2) specifically provides that the Board of Education shall "for all purposes, be the government or public employer of all persons appointed or assigned by the city board or the community districts; provided, however, that the chancellor shall have the authority to appoint staff." Litigation is one of the purposes for which the Department of Education is the proper respondent as employer.*fn1


On or about September 11, 2004, Plaintiff mailed to the Equal Employment Opportunity Commission ("EEOC") a copy of an EEOC Charge of Discrimination against Defendants. The EEOC received the mailing on September 15, 2004, and sent a copy of the charge to Defendants on October 5, 2004. The EEOC issued a "right to sue" letter on December 6, 2004. The Complaint in this action was filed on March 4, 2005, 88 days later.

Defendants answered the Complaint on June 3, 2005 and moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) on August 22, 2005. The Court heard argument on Defendants' motion and pointed out certain timeliness issues created by discrepancies between the EEOC Charge and the filed Complaint that might be cured by a motion to amend. Plaintiff now seeks to amend the Complaint to include certain allegations and claims not initially made.


Ximines, a fifty-seven year old woman, has been a public school teacher at GWHS since 1985. She alleges that because of her age, and in retaliation for alleging age discrimination, D.O.E. has denied her promotions to assistant principal positions for which she applied and for which she was qualified. The following allegations are made in the Complaint:

Since 1991, Ximines has held an Assistant Principal Math Supervision license. Toward the end of 2002, the assistant principal of the math department at GWHS, Mr. Arnofsky, indicated that he would be retiring during the spring of 2003. Ximines asked Mr. Arnofsky and the high school principal, Herbert Hogan, if she could fill the position, which was to become vacant in September 2003. Her request was ignored, and two younger men, Clive Pryce and Cedric Hines, were instead coached to fill the position. Neither of the men remained at GWHS, and the position remained available.

At the end of spring semester 2003, the positions of Assistant Principal, Pupil Personnel and Assistant Principal, Administration became available at GWHS. Ximines was formally qualified for each position and applied for both, but was not selected for either one. Instead, the first position was first given to a younger woman, Ms. Entorie, and then, about the time Ms. Entorie was promoted to another position, both positions were combined and given to Ms. Bradbury. Both Entorie and Bradbury were considerably younger and less experienced than Ximines.

In August 2003, Ximines again asked Hogan if she could fill the position, explaining her plans to improve the math department and reminding him of her qualifications and credentials. Hogan responded that the school needed a "vibrant" person and on August 5, 2003, advised Ximines by letter that she had not been selected. Instead the position was given to Rajendra Dyal, who at the last moment turned it down. Thereafter, on or about September 14, 2003, defendant announced that the position was given to Ms. Atina Modesto, a younger woman with far less experience.

Ximines filed a complaint with D.O.E's Office of Equal Opportunity in September 2003. In October 2003, D.O.E. responded, finding no evidence of discrimination, and advised Ximines of her right to appeal to the Chancellor of the New York City Board of Education. Two weeks later, Ximines filed a grievance with the Chancellor's Office and never received a response.

Shortly after she began her employment at GWHS as assistant principal, Modesto allegedly began a pattern of hostile behavior towards Plaintiff. For example, Modesto would walk in and out of Ximines's classes with great frequency and without prior notice or permission. At other times, Modesto approached Ximines in an aggressive manner, suggested that she should apply for work elsewhere and suggested that she should retire. These actions were allegedly undertaken solely to harass and intimidate Ximines with the hope that she would either retire or transfer to a position at another school.

Modesto did not treat other teachers at GWHS in the same manner.

In January, 2004, Modesto accessed the records of Ximines's students, and without Ximines's permission, changed certain student grades for the fall 2003 semester. Ximines complained to Hogan about Modesto's alleged misconduct in March 2004, and followed-up with a complaint to the State Department of Education in June 2004. She also filed a Step One Grievance with her union in March 2004, challenging the propriety of these grade changes. That Grievance was denied and Ximines thereafter filed a Step Two Grievance. A Step Two hearing was supposed to take place on May 21, 2004, but never did.

On May 4 and 5, 2004, Modesto, allegedly in retaliation for Ximines's grievances, showed up unannounced in Ximines's class, acted in an intimidating and harassing manner and filed a Formal Observation Report stating that Ximines's performance was unsatisfactory. Ximines made a written response to the Report, and noted that there was no post-observation conference, as required. In connection with this process, Ms. Modesto asked Ximines, "Don't you think it's time you retired, Ms. Ximines?" On May 26, 2004, Ximines filed a Step One Grievance with Hogan, and a Step Two Grievance on June 25, 2004 with the Region 6 Superintendent. Ximines also filed a Step Three Grievance with the Chancellor's Office. In her various grievances, Ximines sought to remove the "unsatisfactory" report from her file. All three grievances were denied, and Ximines was eventually advised that the report would remain in her file.

On June 22, 2004, Plaintiff received a phone call from the Brooklyn Superintendant's Office, inviting her to apply for the permanent Assistant Principal position. She was interviewed for the position on June 24, 2004 and told that she would hear from the committee in a few days, but never heard back.

Ximines alleges that "over the past few years," she has applied for various positions within the New York City public school system as assistant principal, math supervision and administration. She has applied for this position in nine different schools. On each occasion she was denied the position, allegedly on account of her age and because she had on numerous occasions challenged the school system's age-related discriminatory treatment of her. Each position was eventually awarded to a younger and less experienced person. Ximines complained on ...

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