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Kenney v. New York City Dep't of Education

October 22, 2007


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge


On July 31, 2006, Laverna Kenney ("Kenney" or "Plaintiff") filed a complaint (the "Complaint") against her employer, the New York Department of Education (the "DOE" or "Defendant") alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000(e) et seq. ("Title VII"). Plaintiff alleges that Defendant improperly terminated her from service as a probationary attendance teacher and denied her re-employment as a teacher in 2005 and 2006 on the basis of her race. The DOE now moves this Court for summary judgment and dismissal of the Complaint. Following an extensive oral argument on September 11, 2007, for the reasons stated below, Defendant's motion is GRANTED and the Complaint is dismissed in its entirety.


A. Plaintiff's Employment with the DOE

From February 1998 to July 2000, Kenney, an African American female, was employed by the DOE as a probationary attendance teacher. On June 21, 2000, Kenney received an overall "Unsatisfactory" rating on her "Annual Professional Performance Review and Report on Probationary Service of Pedagogical Employee" (the "Performance Review"). Affidavit of Laverna Kenney (the "Kenney Aff."), Ex. 17, July 16, 2007. The Performance Review is based on four categories*fn1 with a total of thirteen subcategories. Id. Kenney's Performance Review indicates that her performance for the period September 7, 1999 through June 28, 2000 was "Unsatisfactory" in eleven of the thirteen subcategories.*fn2 Id.

On June 21, 2000, Michael Mirakian ("Mirakian"), District Attendance Director and Plaintiff's supervisor, notified Plaintiff of her performance rating and advised her of his recommendation to Richard Organisciak ("Organisciak"), Superintendent of the Alternative, Adult and Continuing Education School and Programs of the DOE, that her probationary period be discontinued. Declaration of Kevin Madden in Supp. of Def.'s Mot. for Summ. J. (the "Madden Decl."), Ex. D, July 10, 2007. Mirakian explained that Kenney's unsatisfactory performance review was due, in part, to ineffective communication with her supervisors, the improper closure of attendance cases without sufficient investigation (which, according to Mirakian, "could have subjected not only Kenney but the Board of Education to possible legal actions"), her failure to follow DOE procedures, inefficient time management, and insufficient progress in remedying these previously identified "deficiencies." Id.

B. Plaintiff's Termination of Employment

On June 22, 2000, Superintendent Organisciak informed Plaintiff that he would review and consider her probationary status and notify her of his decision. Madden Decl., Ex. E. On July 24, 2000, Organisciak notified Plaintiff that her probationary service would be discontinued. Madden Decl., Ex. F. Shortly thereafter, on September 21, 2000, the DOE's Chancellor's Committee reviewed and concurred with Organisciak's determination to discontinue Plaintiff's probationary service, and on October 26, 2000, Organisciak informed Plaintiff that he reaffirmed his decision to terminate her employment as a probationary attendance teacher. Madden Decl., Exs. G and H.

C. Background to Plaintiff's Failure to Hire Claim

Plaintiff alleges that on July 6, 2005 (five years later), Karen Marino ("Marino"), Deputy Director of Human Resources for Regions 4 and 5, called her to schedule an interview for a teaching position with the DOE on July 11, 2005. Pl.'s Reply to Def.'s 56.1 Statement of Undisputed Facts ¶ 14. However, the DOE alleges that such a call never took place, that Plaintiff visited its Office of Human Resources for Regions 4 and 5 (the "Office") without an appointment, and that Marino was unavailable to meet with Plaintiff because of a previously scheduled meeting. Declaration of Karen Marino (the "Marino Declaration") ¶ 3. Additionally, the DOE maintains that, as a matter of course, Marino does not meet with teachers seeking employment. Id. ¶ 4. Plaintiff made a second visit to the Office on March 8, 2006, at which time Marino met with her. Id. ¶ 5. During the meeting, Plaintiff expressed her belief that it was the Office's responsibility to find a placement for her. Id. Marino, upon review of Kenney's file, informed Plaintiff that her probationary employment as an attendance teacher had been discontinued more than five years ago and advised her to consult with her union. Id. ¶¶ 5-6.

Plaintiff made a third visit to the Office on October 18, 2006 and met with Marino and Walter Wade, a DOE Human Resource Partner. Id. ¶ 7. Plaintiff reiterated her belief that it was the Office's responsibility to find her employment and insisted that the DOE find her a placement as an attendance teacher. Id.Marino examined Plaintiff's New York State teacher's certification to determine her eligibility for employment and informed Plaintiff that her certification had expired on January 31, 2000. Id. Marino then advised Plaintiff that, without a valid teacher's certification, she failed to meet minimum eligibility requirements for "employment in any licensed teaching position within the New York City public school system." Id. ¶ 9 (emphasis added).

D. Procedural Background to Plaintiff's Joint Charge of Discrimination

On October 5, 2005, Plaintiff filed a joint charge of race discrimination with the New York State Division of Human Rights (the "SDHR") and the United States Equal Employment Opportunity Commission (the "EEOC"). Madden Decl., Ex. I. Plaintiff alleged in these complaints that she was subjected to "unlawful discriminatory actions" on July 11, 2005 when Marino failed to meet with her and that she was discriminated against based on race when she failed to receive job offers or information from the DOE that would assist with her reinstatement. Id. On March 14, 2006, the SDHR issued a "Determination and Order of Dismissal for Administrative Convenience" (the "Determination and Order") dismissing Plaintiff's complaint on the basis of "administrative inconvenience" because "complainant intend[ed] to pursue this matter by litigation in Federal Court." Id., Ex. K. On May 2, 2006, the EEOC issued a "Dismissal ...

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