Almendral v. New York State Office of Mental Health
| Decision Date | 13 June 1984 |
| Docket Number | D,No. 711,711 |
| Citation | 743 F.2d 963 |
| Parties | 34 Fair Empl.Prac.Cas. 1680, 34 Empl. Prac. Dec. P 34,390 Sonya A. ALMENDRAL, Plaintiff-Appellant, v. NEW YORK STATE OFFICE OF MENTAL HEALTH, et al., Defendants-Appellees. ocket 83-7762. |
| Court | U.S. Court of Appeals — Second Circuit |
Krishna M. Vempaty, New York City, for plaintiff-appellant.
Robert L. Schonfeld, Asst. Atty. Gen. of the State of N.Y., New York City , for defendants-appellees.
Before LUMBARD, MESKILL and PRATT, Circuit Judges.
Plaintiff-appellant Sonya Almendral appeals from an order of the United States District Court for the Southern District of New York, John E. Sprizzo, Judge, granting defendants judgment on plaintiff's federal claims, and dismissing plaintiff's pendent state law claims. 568 F.Supp. 571 (S.D.N.Y.1983). Appellant Almendral's complaint alleged that appellee defendants, New York State Office of Mental Health, the New York State Department of Civil Service, the Manhattan Psychiatric Center Almendral, an Asian from the Philippines, began her employment at MPC in 1969 as a psychiatric social worker. After three months she was promoted to Social Worker Supervisor. In 1974, Almendral was promoted to Mental Hygiene Treatment Team Leader, a position she held at the time of the commencement of this lawsuit. By at least September 1977, Almendral had begun to seek the position of Chief of Mental Health Treatment Services ("Unit Chief").
("MPC"), the Kingsboro Psychiatric Center ("KPC"), Dr. Gabriel Koz, John Frangos, L. Smith, Morton B. Wallach, Helen Houston and Edward Weeks, Jr., discriminated against her because of her race and national origin in violation of the fourteenth amendment, Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e-(2) & (3), 42 U.S.C. Sec. 1981, 42 U.S.C. Sec. 1983, and the New York State Constitution, Civil Rights Law, Civil Service Law, and Executive Law. Almendral asked that she be adjudged entitled to promotion, together with an award of back pay and damages. For the reasons that follow, we affirm in part, and reverse in part and remand.
Under New York's civil service rules, an individual may be appointed to a Unit Chief position from either the "promotion eligible" list or the "open competitive" list. These lists are made up of individuals who have taken one of two identical qualifying examinations for the position. The promotional test is for those already employed and in the civil service line, and the open competitive examination is for all other individuals desiring the position. See N.Y.Civ.Serv.Law Secs. 51, 52 (McKinney 1983).
When an agency has a vacancy, lists of the eligible persons who have passed the promotional or open competitive qualifying examinations are compiled and certified to the agency. Id. Sec. 60; N.Y.Admin.Code tit. 4, Sec. 4.1 (1983). The listed persons are then canvassed to determine whether they wish to be considered for the agency's vacancy.
Generally, a candidate is promoted according to the "Rule of Three." N.Y.Civ.Serv.Law Secs. 51, 61 (McKinney 1983); N.Y.Admin.Code tit. 4, Sec. 4.2 (1983). First, the persons on the promotion eligible list are canvassed and interviewed. If there are at least three interested candidates or "acceptors" on the promotion eligible list, the agency must appoint one of the three highest or leave the position vacant. If, on the other hand, there are fewer than three promotion eligible list acceptors, the agency may select one of the three highest acceptors on either the promotion eligible list or the open competitive list.
Almendral was first canvassed for promotion in July 1978. At that time, there were apparently five Unit Chief vacancies at MPC, several of which had been filled "temporarily" by provisional appointments. 1 Four of these putatively provisional appointments, however, averaged fifteen months in duration, with the fifth lasting over seven and one-half years. 2
Almendral had scored 80.6 percent on the promotional examination, and ranked nineteenth on the promotion eligible list. Of those persons on the promotion eligible list who were canvassed, ten indicated a willingness to accept the Unit Chief position, with appellant ranked fourth among the ten. Nevertheless, none of the acceptors were chosen and all five positions remained "vacant." The provisional appointees--four Caucasians, and one Asian--continued Almendral was again canvassed for the Unit Chief position in late 1978. Twelve names were on the promotion eligible list certified to the MPC, but only two, including Almendral, were acceptors. Thus, under the Rule of Three, defendants could permissibly select an individual from the open competitive list as long as she had one of the three highest scores. Gayla Blackwell, a black woman with a perfect 100.0 score on the open competitive examination, was appointed Unit Chief from the open competitive list. Evidence was adduced at trial, however, that indicated defendants, in order to appoint Blackwell, had manipulated the civil service rules to prevent the total number of acceptors on the promotion eligible list from reaching three. Defendant Koz had pressured James Amorese to decline the position, and Margaret Marks' canvassing interview was not rescheduled as she requested after her interviewer failed to appear. Both Amorese and Marks were on the promotion eligible list; had either accepted, the Rule of Three would have prohibited the appointment of Blackwell.
in these positions though two or three had failed the open competitive examination.
Following this canvass, Almendral filed charges with the Equal Employment Opportunity Commission ("EEOC") on March 22, 1979, and with the New York State Division of Human Rights ("NYSDHR") on May 11, 1979, alleging that she had been denied the promotion because of her national origin.
As the district court did not consider allegations of misconduct occurring after Almendral's charges were filed in March 1979, the following account concerns principally unresolved allegations deduced from the record.
On April 17, 1979, shortly after she filed her discrimination charges with the EEOC, Almendral was appointed to a Unit Chief position at KPC for a twelve-week probation period. During this probation period, she received two unsatisfactory performance evaluations. Following the second unsatisfactory evaluation Almendral again filed charges with the EEOC and the NYSDHR, alleging that she had been harassed and intimidated in retaliation for her filing of EEOC and NYSDHR charges. KPC terminated plaintiff from her Unit Chief position at the end of her probation.
On July 29, 1979, shortly before her termination, Almendral requested that her name be restored to the promotion eligible list. In August 1979, Almendral returned to her position as Team Leader at MPC, where there was a Unit Chief position vacancy. Almendral, however, was not considered to fill the vacancy because she was not restored to the promotion eligible list until January 1980. Instead, James Amorese, who ranked 35th on the promotion eligible list, was appointed to the position.
Almendral asserts that she was passed over for promotion again in February 1980, when Paul Schwartz, who is white, was appointed Unit Chief. Almendral alleges that Schwartz was not on the open competitive or promotion eligible lists, and that there were no job postings to indicate that a vacancy existed. Appellant was interviewed twice in November 1980 without appointment, while Schwartz continued in this position until April 1981.
Almendral was next canvassed in March 1981, and was one of the three highest acceptors on the promotion eligible list. Margaret Marks, however, a white woman ranked 17th, was chosen.
Almendral was last unsuccessfully canvassed for promotion in November 1981. There were fewer than three acceptors on the promotion eligible list, and defendants selected Judith Nigro, a white woman, from the open competitive list. In April 1982, Almendral was appointed a Unit Chief at MPC.
The EEOC and NYSDHR found no reasonable basis to support either plaintiff's claim of discrimination of her claim of retaliation. Plaintiff commenced this suit upon the issuance of a Notice of Right to The case thereafter was transferred to Judge Sprizzo, who held a four-day bench trial beginning May 11, 1982. In an opinion dated July 29, 1983, Judge Sprizzo held that defendants were entitled to judgment on Almendral's federal claims. In reaching this holding, the district court restricted its resolution of the factual issues to pre-January 1979 conduct by the defendants:
Sue on October 8, 1980, alleging both federal and pendent state claims. In July 1981, Almendral moved to amend her complaint to include claims relating to alleged acts of discrimination occurring subsequent to the filing of her original EEOC charges. In granting Almendral's motion on September 28, 1981, Judge Ward noted that the "subparagraphs she seeks to add all address the same alleged course of discrimination against the plaintiff as that contained in the original complaint...."
To the extent that plaintiff's Title VII claim is premised on racial discrimination and/or on defendants' failure to appoint or promote her at any time other than following the November 1978 canvass, the Court lacks subject matter jurisdiction to consider those claims since they were never presented to or investigated by the EEOC and were not within the scope of the EEOC investigation which reasonably could have been expected to grow out of the complaint filed with the EEOC.
The district court went on to find that appellant may...
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