Gulino v. Board of Educ., City of New York

• Decision Date: 25 November 2002
• Docket Number: No. 96 Civ. 8414(CBM).,96 Civ. 8414(CBM).
• Citation: 236 F.Supp.2d 314
• Parties: Elsa GULINO et al., Plaintiffs, v. THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK and the New York State Education Department, Defendants.
• Court: U.S. District Court — Southern District of New York

236 F.Supp.2d 314

Elsa GULINO et al., Plaintiffs, v. THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK and the New York State Education Department, Defendants.

No. 96 Civ. 8414(CBM).

United States District Court, S.D. New York.

November 25, 2002.

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Barbara Olshansky, Center for Constitutional Rights, Joshua Sohn, Piper Rudnick LLP, for Plaintiff Class.

Michael A. Cardozo, Corporation Counsel of the City of New York, by: Donald Sullivan, for Defendant City Board of Education, of counsel.

Eliot Spitzer, Attorney General of the State of New York, by: Jane A. Conrad; Bruce B. McHale; Frederic L. Lieberman, Assistant Attorneys General, for Defendant State Education Department, of counsel.

OPINION AND ORDER

MOTLEY, District Judge.

The facts of this case were recited in depth in this court's decision certifying the class and familiarity with that ruling is presumed. Gulino v. Board of Education of City School District of New York, 201 F.R.D. 326 (S.D.N.Y.2001) ("Gulino"). Briefly, the plaintiff class is comprised of African American and Latino educators in the New York City public school system ("Teachers") who have either lost their teaching licenses or have been prevented from obtaining a full teaching license because of the requirement that they achieve a satisfactory score on one of the challenged tests, the National Teacher Core Battery Exam ("NTE") or the Liberal Arts and Sciences Test of the New York State Teacher Certification Examination ("LAST"), the successor to the NTE. The tests were developed and administered by defendant State Department of Education ("SED" or "the Department").

Plaintiffs allege that the use of the tests as a requirement for obtaining permanent teaching certificates has an impermissible disparate impact on African-American and Latino teachers in New York City public schools, in violation of Title VII of the Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C. § 2000e et seq., Plaintiffs allege that white test-takers passed both tests at a rate that is statistically significantly higher than the rates for African Americans and Latinos. Plaintiffs further allege that the tests in question were misused and do not measure whether the test-takers are qualified to be teachers. Many of the plaintiffs have remained employed as teachers with defendant New York City Board of Education ("BOE" or "the Board"), some in the same classrooms teaching the same subjects. They assert, however, that they have suffered harm in that they have had their salaries reduced and have been denied employment opportunities, rights and benefits.

Both defendants have filed a Motion for Summary Judgment on various grounds, seeking that some or all of the claims be dismissed and that they each be declared not liable as employers. Plaintiffs have filed a Motion for Partial Summary Judgment, seeking a declaration that both defendants are in fact employers under the Title VII, that the tests were misused and that they have established a prima facie case of disparate impact. For the reasons that follow, both defendants' and plaintiffs' motions are GRANTED IN PART and DENIED IN PART.

LEGAL STANDARDS

Summary Judgment

Summary judgment should only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4, 91 L.Ed.2d 265 (1986). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir.1999) (internal quotations and citations omitted). In order to prove that a genuine issue of material fact exists, a plaintiff "may not rest upon the mere allegations or denials of the pleading[s]," but must by affidavit or otherwise "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Twin Labs, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir.1990). In this vein, the Second Circuit has noted that "conclusory statements, conjecture or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996). Of course, this standard applies with equal force in discrimination cases as it would in any other case in the federal courts. See Ashton v. Pall Corp., 32 F.Supp.2d 82, 87 (E.D.N.Y.1999) ("`the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation'"). Thus, courts within the Second Circuit "have not hesitated to grant defendants summary judgment in such cases where ... plaintiff has offered little or no evidence of discrimination." Scaria v. Rubin, 1996 WL 389250, 1996 U.S. Dist. LEXIS 9659, at *14 (S.D.N.Y.1996) (Peck, M.J.), aff'd, 117 F.3d 652 (2d Cir.1997).

In assessing the record to determine whether genuine issues of material fact are in dispute, courts must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997). When parties have filed cross motions for summary judgment, each has the burden of presenting evidence in support of its motion. See Barhold v. Rodriguez, 863 F.2d 233, 236 (2d Cir.1988). However, if the moving party meets its initial burden, the non-moving party may not rely on conclusory allegations or speculation to create factual disputes. Instead, the non-moving party "must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) (internal quotations and citations omitted) (alteration in original).

DISCUSSION

I. PLAINTIFF'S CLAIMS ARE BARRED NEITHER BY RES JUDICATA NOR BY THE ROOKER-FELDMAN DOCTRINE.

In 1996-97 a group of teachers who had lost their licenses because of their failure to pass the NTE joined their union President, Sandra Feldman (in her capacity as President) in bringing a State court proceeding under Article 78 to review the revocation of their licenses ("Feldman Proceeding"). Sullivan Decl. Ex. L ("Feldman Petition"). They alleged: 1) a violation of due process; 2) that they were not provided sufficient notice of the test requirements in advance; and 3) that the mis-use of the tests (which had not been validated for the uses to which they were put) was arbitrary and capricious. Id., ¶ 1.¹ New York Supreme Court Justice Herbert Kramer dismissed their action, holding that the decision to revoke their licenses was not arbitrary and capricious (Weingarten Aff. Ex. C ("Feldman Final Order") at 6), "given [that] an appropriate and validated test, such as the NTE" was used to make the decision. Id. at 5.²

Based on that state court judgment, both defendants argue that the claim before the court is barred under the doctrine of res judicata, or, in the alternative, under the Rooker-Feldman doctrine. The court disagrees.

A. Res Judicata

Under New York law, the doctrine of res judicata, or claim preclusion, applies "to the parties in a litigation and those in privity with them...." Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 486, 414 N.Y.S.2d 308, 386 N.E.2d 1328 (1979). Defendants argue that although the named plaintiffs in this case were not actually involved in the prior litigation, they are in privity with the teacher's union, ("the UFT", or "the Union"), which was a plaintiff.

As a preliminary matter, it is not clear to the Court that the Union was in fact subject to the Feldman Order. There is no dispute that Sandra Feldman, in her capacity as President of the UFT, was an original petitioner. See Feldman Petition. That does not settle the question, however, since Justice Kramer denied petitioner's claims for class certification (Weingarten Aff. Ex. B ("Feldman Order 10/7/96"), at 9), which plaintiffs argue had the effect of dismissing the Union from the case altogether. Weingarten Aff., ¶ 12. By the time the case was resolved, it does not appear that Justice Kramer even contemplated Ms. Feldman (or the UFT) as a petitioner; his final order curiously omits any reference to the Union or its President, opening: "Upon the foregoing papers in this Article 78 proceeding, petitioners Jennifer Jones, Brenda Parsons-English and Jose Drunker filed a petition, dated January 11...." Feldman Final Order at 2. On the next page, Justice Kramer refers to "both petitioners herein."³ Id. at 3. Finally, his holding seems not directed at the Union at all: "The court finds that respondents' action in terminating the licenses of petitioners Parsons-English and Jacoby-Raglievich ... is not arbitrary and capricious...." Id. at 5.

Even if the UFT was a party at the end of the Feldman proceeding, however, to establish that Gulino et al. were in privity with the Feldman petitioners, defendants must show that "the interests of the non-party [in the instant case, Gulino et al.] can be said to have been represented in the prior [Feldman] proceeding." Green v. Santa Fe Indus., 70 N.Y.2d 244, 253, 519 N.Y.S.2d 793, 514 N.E.2d 105 (1987).⁴...