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Marie Devito v. Valley Stream Central High School District

August 3, 2011


The opinion of the court was delivered by: Seybert, District Judge:


In this employment discrimination case, Plaintiff Marie DeVito ("Plaintiff") alleges that she was the victim of retaliation and "gender-plus" employment discrimination by her employer, Defendant Valley Stream Central High School District ("Valley Stream") and others. She asserts claims under Title VII of the Civil Rights Act of 1964 ("Title VII") and Section 1983 of Title 42 of the United States Code ("Section 1983"). For the following reasons, Defendants' summary judgment motion is GRANTED.


Plaintiff has worked at Valley Stream since 1993, first as a "cleaner" and later as a "custodian."*fn1 (Def. 56.1 Stmt. ¶¶ 1-3.) Since 2005, she has been assigned to the night shift at Memorial Junior High School ("Memorial Junior"). (Id. ¶ 4.) The Defendants in this case are Valley Stream, Plaintiff's employer; Marc Bernstein, Valley Stream's Superintendent; John LaBare, at relevant times Valley Stream's Director of Facilities and Operations; Kathleen Walsh, Memorial Junior's principal; Joseph Pompilio, the principal of Central High School ("Central High"), a school within the Valley Stream district; and Maureen Henry, principal of South High School ("South High"), another Valley Stream school. (Id. ¶¶ 5-9.)

I. The Assistant Head Custodian Position

In September 2007, Valley Stream began the process of hiring three new "Assistant Head Custodians" ("AHCs") who would each be responsible for supervising the night cleaning crews at their respective schools. (Id. ¶¶ 16-17.) Valley Stream sought to hire AHCs for Memorial Junior, Central High and South High. (Id. ¶ 18.) Including Plaintiff, five candidates--all of whom were already employed by Valley Stream--applied for the job.

(Id. ¶¶ 19-21.)

Valley Stream formed a committee (the "Committee") to evaluate the five AHC candidates. The Committee had five members: Wayne Loper (Valley Stream's Assistant Superintendent for Finance and Operations and a non-party to this suit), LaBare, and the principals of the three schools seeking new ACH's--Pompilio (Central High), Walsh (Memorial Junior), and Henry (South High). The Committee interviewed all five candidates on the same day; Plaintiff remembers that she was asked questions concerning how she would motivate her crew and "mostly supervisory questions." (Id. ¶¶ 26-28, 33.)

Plaintiff was not promoted to ACH. Principal Pompilio wanted Ronald Heganeh for Central High, where Heganeh had already been working as the acting Assistant Head Custodian. (Id. ¶¶ 33-34.) For Memorial Junior--where Plaintiff worked at the time--principal Walsh sought someone who was not already assigned to the school because she was concerned that an AHC promoted up from Memorial Junior's ranks would have trouble getting her former colleagues to work hard. (See id. ¶¶ 37-38.) Walsh chose Johanna Murphy, who, according to Defendants, impressed the Committee as a leader. (See id. ¶ 39.) That left one spot--South High--and three candidates--Plaintiff, Timothy Laukitis and Jack Rogawski (of all the candidates, Rogawski scored lowest on the civil service exam and was the only one never to have served as acting Assistant Head Custodian (Pl. Ex. 4, Exam Results; Pl. Ex. 24, LaBare Dep. at 53)). South High's principal, Maureen Henry, chose Laukitis. According to Defendants, Henry felt that Laukitis was more confident and less hesitant than Plaintiff in his interview (id. ¶¶ 43, 44) and, in general, the Committee thought Plaintiff did not have the same leadership potential as her competition (id. ¶ 46).

The Committee ultimately recommended Heganeh, Murphy and Laukitis to Superintendent Bernstein, and these three were promoted to AHC. (Id. ¶¶ 47-48.)

II. Plaintiff's Feminine Appearance

Plaintiff, who had scored higher than Murphy on the civil service exam, (Pl. 56.1 Cntr-Stmt. ¶ 19), met with LaBare after the promotions were made to ask why she was not chosen. (Def. 56.1 Stmt. ¶ 49.) LaBare explained that Plaintiff "did not present as an authoritative figure." (Def. Ex. C, Plaintiff's Dep. at 43.) In response, Plaintiff offered to change her appearance, including by changing her nail polish and wearing less makeup. (Def. 56.1 Stmt. ¶ 51.) Superintendent Bernstein later admitted to Plaintiff that LaBare chose his words poorly when he said "authoritative figure." (Pl. 56.1 Cntr-Stmt. ¶ 54.)

In Plaintiff's view, LaBare's explanation that Plaintiff did not present as an authoritative figure was a veiled way of saying that Plaintiff's appearance was too feminine for a supervisory position, especially as compared with that of Johanna Murphy, the female candidate who was promoted over Plaintiff. (See Compl. ¶ 32; Pl. 56.1 Cntr-Stmt. ¶ 57.) Plaintiff "wears attire and makeup" that "accentuate[s] her femininity." (Compl. ¶ 32; see also Pl. 56.1 Cntr-Stmt. ¶ 45.) By contrast, according to Plaintiff, Murphy's appearance ...

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