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Yvonne Davis v. the Department of Education of To the City of

September 28, 2012

YVONNE DAVIS, PLAINTIFF,
v.
THE DEPARTMENT OF EDUCATION OF TO THE CITY OF NEW YORK, ET AL.
DEFENDANTS.



The opinion of the court was delivered by: Debra Freeman, United States Magistrate Judge:

MEMORANDUM AND OPINION AND ORDER

SHOW CAUSE

In this employment discrimination case, which is before me on consent pursuant to 28 U.S.C. § 636(c), plaintiff Yvonne Davis ("Plaintiff"), a New York City public school teacher, initially alleged in her Complaint that defendants the City of New York (the "City") and the Department of Education of the City of New York (the "DOE") (collectively, "Defendants") failed to promote her to several assistant-principal positions because of her race, gender, and/or age, in violation of federal, state, and local law. Plaintiff also alleged that Defendants unlawfully retaliated against her, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. (The "ADEA"), and the First Amendment, for having written a particular book.

At this point, though, this case has been substantially narrowed. At her deposition, Plaintiff confirmed on the record that she was withdrawing her First Amendment retaliation claims. In addition, in response to arguments made by Defendants in a summary judgment motion that is now pending (Dkt. 11), Plaintiff has explicitly withdrawn all of her failure-to-promote claims, except for her Title VII and ADEA claims against the DOE, arising out of its allegedly discriminatory failure to offer Plaintiff two particular assistant-principal positions for which she applied in January 2008. For the reasons discussed below, all of Plaintiff's voluntarily-withdrawn claims are dismissed without prejudice. As to the remaining claims, the DOE has demonstrated that it is entitled to summary judgment dismissing Plaintiff's two remaining failure-to-promote claims against it, and those claims are therefore dismissed with prejudice. Further, although neither the DOE nor Plaintiff specifically addresses any Title VII or ADEA retaliation claims that Plaintiff may still be seeking to assert with respect to the two denied positions, it would appear that any such claims would also be subject to dismissal. Accordingly, as set forth below, Plaintiff is ordered to show cause why any remaining retaliation claims should not be dismissed with prejudice, as well.

BACKGROUND

A. Factual Background*fn1 Plaintiff, born on December 18, 1952, is an African-American female. (Defendants' Local Civil Rule 56.1 Statement of Undisputed Material Facts, dated Nov. 4, 2011 ("Def. 56.1 Stmt.") (Dkt. 12), ¶ 1; Plaintiff's Response to Defendant's Rule 56.1 Statement, dated Dec. 23, 2011) ("Pl. 56.1 Stmt."), ¶ 1.) In addition to holding a Bachelor's Degree in English, which she earned in 1976, Plaintiff holds two Master's Degrees, one in Language and Literacy, which she earned in 1995, and one in Administration and Supervision, which she earned in 2001. (Declaration of Assistant Corporation Counsel Christopher A. Seacord in Support of Defendants' Motion for Summary Judgment, dated Nov. 4, 2011 ("Seacord Decl.") (Dkt. 16), Ex. C (Plaintiff's Resume ("Pl. Resume")), at 2.)

Plaintiff began working for the DOE in September 1989 (see Def. 56.1 Stmt. ¶ 2; Pl. 56.1 Stmt. ¶ 2), and she has continued to be employed by the DOE to the present date. She began as an English teacher at an intermediate school in Manhattan (see Pl. Resume, at 2 (noting position from Sept. 1989-June 2004)), and moved from there to become a high school English teacher in Manhattan (id. (Sept.-Oct. 2004)), and then a "Mentor Teacher" at the DOE (id (Oct. 2004-June 2007)) and an "Advisory Mentor Teacher" at an alternative learning center in Manhattan (id. (Sept. 2007-present)).

In her Complaint, Plaintiff alleges that she has, on numerous occasions, applied to be promoted to the position of assistant principal at several New York City schools, but that she has been denied those positions. (Seacord Decl., Ex. A (Plaintiff's Complaint, dated Mar. 1, 2010 ("Compl.")), ¶ 7; see also Dkt. 1 (Notice of Removal, attaching copy of Complaint).) In particular, Plaintiff lists eight schools (which she identifies in her Complaint only by school code numbers), and asserts that the assistant-principal positions for which she has applied have included, but not been limited to, positions at the listed schools. (Id.) In connection with their summary judgment motion, Defendants have fleshed out this allegation, presenting evidence that, during the period from October 2005 through March 2008, Plaintiff applied for at least the following nine positions:

1. On or about October 19, 2005, Plaintiff applied for the position of Principal*fn2 at the Day Elementary School, Thurgood Marshall Academy Lower School ("M318") (Def. 56.1 Stmt. ¶ 14; Pl. 56.1 Stmt. ¶ 14);

2. On or about March 23, 2007, Plaintiff applied for the position of Assistant Principal of Day High School, at Jane Adams Vocational High School ("X650") (Def. 56.1 Stmt. ¶ 16; Pl. 56.1 Stmt. ¶ 16);*fn3

3. On or about April 24, 2007, Plaintiff applied for the position of Assistant Principal of Day High School, at the Bronx High School for Law and Community Service ("X439") (Def. 56.1 Stmt. ¶ 18; Pl. 56.1 Stmt. ¶ 18);

4. On or about April 24, 2007, Plaintiff applied for the position of Assistant Principal of Day High School, at the School for Arts, Imagination and Inquiry ("M299") (Def. 56.1 Stmt. ¶ 20; Pl. 56.1 Stmt. ¶ 20);

5. On or about April 24, 2007, Plaintiff applied for the position of Assistant Principal of Elementary Intermediate and Junior High Schools, at Intermediate School 339, the School of Community Technology ("I.S. 339") (Def. 56.1 Stmt. ¶ 22; Pl. 56.1 Stmt. ¶ 22);

6. On or about June 5, 2007, Plaintiff applied for the position of Assistant Principal of Elementary Intermediate and Junior High Schools, at Harbor Heights ("M349") (Def. 56.1 Stmt. ¶ 24; Pl. 56.1 Stmt. ¶ 24);

7. On or about June 6, 2007, plaintiff applied for the position of Assistant Principal of Supervision English, at Murry Bergtraum High School for Business Careers ("M520") (Def. 56.1 Stmt. ¶ 26; Pl. 56.1 Stmt. ¶ 26);

8. On or about January 2, 2008, Plaintiff applied for the position of Assistant Principal of Elementary Intermediate and Junior High Schools, at P.S./I.S. 210, the Twenty-First Century Academy for Community Leadership ("P.S. 210") (Def. 56.1 Stmt. ¶ 28; Pl. 56.1 Stmt. ¶ 28); and

9. On or about January 22, 2008, Plaintiff applied for the position of Assistant Principal of Elementary Intermediate and Junior High Schools, at P.S. 004, Duke Ellington School ("P.S. 4") (Def. 56.1 Stmt. ¶ 36; Pl. 56.1 Stmt. ¶ 36).

It is not disputed that Plaintiff was not offered any of these nine positions, nor was she even invited to interview for any of them. (Def. 56.1 Stmt. ¶¶ 14-29, 36-37; Pl. 56.1 Stmt. ¶¶ 14-29, 36-37.)

The parties also do not dispute the process that is generally used by the DOE to fill a vacant assistant-principal position at one of the City's public schools. In order for any school within the DOE to fill such a position, the school is required to comply with Chancellor's Regulation C-30, which governs the entire hiring process. (See Def. 56.1 Stmt. ¶ 4; Pl. 56.1 Stmt ¶ 4.) The school must post the position on the DOE's website for a minimum of 15 days, and in the posting, state the minimum qualifications for that position. (Def. 56.1 Stmt. ¶ 7; Pl. 56.1 Stmt ¶ 7.) All applications for the position of assistant principal must be submitted through the DOE website. (Def. 56.1 Stmt. ¶ 8; Pl. 56.1 Stmt ¶ 8.) Only candidates who obtain a Certificate of Eligibility for Supervisory Placement from the DOE's Division of Human Resources are eligible to be appointed to the position of assistant principal. (Def. 56.1 Stmt. ¶ 5; Pl. 56.1 Stmt ¶ 5.)

The Principal of the hiring school serves as the hiring manager and is ultimately responsible for selecting a candidate to fill the position of assistant principal. (Def. 56.1 Stmt. ¶ 6; Pl. 56.1 Stmt. ¶ 6.) Once the Principal receives a list of eligible applicants for the position, the Principal must, inter alia, form a so-called "Level I Committee." (Def. 56.1 Stmt. ¶ 9; Pl. 56.1 Stmt ¶ 9.) This committee, which must have at least 11 members -- one supervisor from the school or another school within the same school district, two members of the United Federation of Teachers, one school support staff member represented by Local 372, four to seven parents, one designee of a school support organization, one designee of an intermediary organization, and the Principal -- interviews and rates three to five eligible applicants, and then communicates the committee's recommendation, if any, and ratings to the Principal. (Def. 56.1 Stmt. ¶¶ 10-12; Pl. 56.1 Stmt ¶¶ 10-12.) At Level II of the process, after considering the Level I Committee's findings, and, in some case, conducting second interviews of the candidates, the Principal makes a final decision as to whom to hire to fill the position of assistant principal. (Def. 56.1 Stmt. ¶ 13; Pl. 56.1 Stmt ¶ 13.)

In this case, Plaintiff alleges that her failure to be considered or appointed to the various positions for which she applied was the result of unlawful discrimination and/or retaliation.

B. Procedural History

On September 5, 2008, Plaintiff filed a charge with the federal Equal Employment Opportunity Commission ("EEOC"), alleging discrimination based on her gender and age (see Def. 56.1 Stmt. ¶ 46; Pl. 56.1 Stmt. ¶ 46; see also Seacord Decl. Ex. L (Plaintiff's EEOC charge ("EEOC Charge")), at 1*fn4 ), as well as retaliation for having written a book (EEOC Charge, at 3). More specifically, Plaintiff claimed that Defendants rejected her application for the assistant-principal positions at seven schools (M004, M210, M299, M318, X349, X439, X650), on the basis of her gender (EEOC Charge, at 3), and that, on two occasions, Defendants rejected her application for the assistant-principal position at M520, the first time on the basis of her age (id. at 2), and the second time on the basis of her gender (id. at 3).*fn5 Plaintiff also claimed that Defendants retaliated against her for writing a book entitled "Teachers Under Siege," by "plac[ing] [Plaintiff] on a list and flagg[ing] [her] as a warning to others not to hire [her]." (Id. at 3 (internal quotation marks omitted).) In her EEOC charge, however, Plaintiff made no mention of any discrimination on the basis of her race.

Approximately three months later, on December 1, 2008, Plaintiff filed another administrative complaint, this time with the New York State Division of Human Rights ("SDHR"). (See Def. 56.1 Stmt. ¶ 45; Pl. 56.1 Stmt. ¶ 45; Seacord Decl. Ex. M, at 1.) This time, Plaintiff alleged that she had suffered employment discrimination on the ...


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