Joseph v. New York City Bd. of Educ.

Decision Date16 March 1999
Docket NumberDocket No. 98-7246
Citation171 F.3d 87
Parties133 Ed. Law Rep. 380 Dorothy JOSEPH, Plaintiff-Appellant, v. NEW YORK CITY BOARD OF EDUCATION, Defendant-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Lisa L. George, New York, New York (Barrett Gravante Carpinello & Stern, New York, New York, on the brief), for Plaintiff-Appellant.

Timothy J. O'Shaughnessy, New York, New York (Michael D. Hess, Corporation Counsel for the City of New York, Kristin M. Helmers, New York, New York, on the brief), for Defendant-Appellee.

Hon. Clarence Norman, Jr., Hon. Major Owens, Brooklyn, New York (Lisa L. George, New York, New York, on the brief), filed a brief as Amici Curiae in support of Plaintiff-Appellant.

Before: KEARSE, Circuit Judge, and POLLACK * and CASEY **, District Judges. ***

KEARSE, Circuit Judge:

Plaintiff Dorothy Joseph appeals from a final judgment of the United States District Court for the Eastern District of New York, John Gleeson, Judge, dismissing her complaint alleging principally that defendant New York City Board of Education ("Board of Education" or "Board") denied her tenure and terminated her employment as a school principal on account of her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994) ("Title VII"). Following a bench trial, the district court found that Joseph had not carried her burden of proving that the adverse employment decisions were the result of racial animus. On appeal, Joseph contends principally that under the 1991 amendments to Title VII, codified at 42 U.S.C. § 1981a (1994) ("1991 Amendments"), she was entitled to trial by jury and that, even if she had no right to a jury trial, the district court erred in ruling, following the bench trial, that she had failed to carry her burden of establishing intentional racial discrimination. Finding no basis for reversal, we affirm.


Joseph, an African-American, was employed by the Board of Education from 1956 until 1991. In 1987, she was appointed principal of Public School 27 ("PS 27"), an elementary school located in the Red Hook section of Brooklyn, a largely poor neighborhood with a predominantly black and Latino population and a history of high crime rates and drug problems. As a new principal, Joseph was to serve a three-year period of probation, during which her performance was to be evaluated. At the end of the third year, the parties agreed that Joseph's probation would be extended for one year.

PS 27 was one of approximately two dozen schools located in Community School District 15 ("District 15"). For most of Joseph's probationary period, her supervisor was William P. Casey, a Caucasian, who held the position of District 15 superintendent.

A. Termination of Joseph's Employment as Principal of PS 27

In order to be granted tenure, a probationary principal was required to receive "Certification of Completion of Probation." As set forth in greater detail in Part II.B. below, through most of Joseph's four-year probationary term, Casey expressed criticisms of her performance. On June 21, 1991, near the end of the four-year period, Casey sent Joseph a letter ("June 21, 1991 letter") stating that he was denying Joseph "Certification of Completion of Probation," and stating that her appointment as principal of PS 27 would "terminate as of the close of business on August 25, 1991."

Pursuant to the pertinent collective bargaining agreement, this tenure denial was reviewed by a committee designated by Schools Chancellor Joseph Fernandez (the "Chancellor's Committee" or "Committee") on November 8, 12, and 15, and December 3, 1991. The Committee recommended that Fernandez concur in Casey's decision; Fernandez concurred, by letter to Casey dated February 4, 1992. Casey sent Joseph--who by then had reached an agreement with the Board of Education allowing her early retirement--a letter dated February 13, 1992, reaffirming his decision.

B. The Present Action

In June 1994, Joseph commenced the present action, alleging that, in denying her tenure and terminating her employment as principal of PS 27, the Board of Education had discriminated against her on the basis of race. Joseph alleged, inter alia, that she was treated differently from the other principals in District 15, all but one of whom were white, and differently from all previous principals of PS 27, all of whom were white. She also contended that PS 27 was accorded less support from District 15 than were schools with white principals and a higher percentage of white students. Joseph demanded, inter alia, a jury trial, invoking the 1991 Amendments.

Following the completion of discovery, the Board moved, to the extent pertinent here, to strike Joseph's demand for a jury trial. The Board contended that the claims asserted by Joseph challenged conduct that occurred prior to November 21, 1991, and that the 1991 Amendments were not applicable because they became effective on November 21, 1991, and were not retroactive.

In a Memorandum and Order dated February 3, 1997 ("1997 Opinion"), the district court granted the Board's motion. Noting that Joseph was notified of the denial of tenure by the June 21, 1991 letter and was informed at that time that her employment as principal of P.S. 27 would terminate on August 25, 1991, the court concluded that "state law is clear that the decision was final at the time it was made by the superintendent," i.e., June 21, 1991:

Both parties agree that in order for plaintiff to be entitled to the benefits of the 1991 Amendments, her claim must have ripened after November 21, 1991. A claim ripens when the plaintiff receives definite notice of discharge. Miller v. International Telephone and Telegraph, 755 F.2d 20, 23 (2d Cir.1985). The question presented is whether plaintiff received such notice prior to November 21, 1991.

The New York State Education Law, § 2573(6), states:

In a city having a population of four hundred thousand or more, at the expiration of the probationary term of any persons appointed for such term, the superintendent of schools shall make a written report to the board of education recommending for permanent appointment those persons who have been found satisfactory and such board of education shall immediately thereafter issue to such persons permanent certificates of appointment.

N.Y. Educ. Law § 2573(6) (McKinney 1994).

Under a literal reading of this law, the decision not to retain a principal beyond the probationary period is within the sole province of the district superintendent. Section 2573 contains no provision for review or reversal of these decisions by the chancellor of the central board.

Additionally, the New York State Court of Appeals has repeatedly examined this provision of the Education Law and has clearly stated that the law applies as written. The discretion to grant tenure to a principal upon completion of the probationary period lies exclusively with the district superintendents. Matter of Taylor v. Berberian, 61 N.Y.2d 613, 471 N.Y.S.2d 843, 459 N.E.2d 1280 Additionally, Joseph has submitted a portion of the Board of Education Pedagogical Review Manual, published by the Board's Office of Appeals and Reviews. This manual clearly states that tenure decisions of district superintendents are final. See Plaintiff's Exhibit G at 25. The manual does not state that the findings of these reviews, subsequent votes by the local board, or recommendations of reversal by the Chancellor are binding on the district superintendent. Indeed, the manual states that the district superintendent can stand on his or her original decision, regardless of the recommendations of the Chancellor's report. See Plaintiff's Exhibit G at 30. Based upon the applicable law, its interpretation by the Court of Appeals, and the internal regulations of the Board of Education, plaintiff was terminated pursuant to the June 21, 1991 letter.

(N.Y.1983). The language of § 2573 also denotes a duty on the part[ ] of the community school board to comply with the tenure recommendations of the superintendent. Matter of Caraballo v. Community School Bd. Dist. 3, 49 N.Y.2d 488, 492-93, 426 N.Y.S.2d 974, 976, 403 N.E.2d 958 (1980).

1997 Opinion at 4-6 (footnotes omitted). The court observed that

[t]he plaintiff in Caraballo was an elementary school principal who was "recommended" for tenure by the district superintendent. However, the district school board refused to issue the Certification of Appointment officially granting tenure. The Court of Appeals held that the district school board's function was essentially ministerial, and thus it could not reverse the decision of the district superintendent. Caraballo, 49 N.Y.2d at 492, 426 N.Y.S.2d 974, 403 N.E.2d 958.

1997 Opinion at 5 n.2.

The district court also noted that in Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), the Supreme Court

held that a discrimination action ripened when the Ricks plaintiff was notified that he was not getting tenure, not when the grievance was denied. Hearing a grievance or an appeal is an effort to change a prior decision, not to influence the decision before it is made. Id. at 261, 101 S.Ct. 498. Aspirants for academic tenure should not ignore available opportunities to request reconsideration, but such requests cannot extend the limitations periods applicable to civil rights laws. Id. at 261, n. 15, 101 S.Ct. 498.

As in the Ricks case, Joseph was denied tenure and was given the opportunity for review by another body. In both instances, the discriminatory action took place when the tenure decision was made, not when collateral reviews became final. This initial denial of tenure is the wrong for which plaintiff seeks a remedy.

1997 Opinion at 7. The court also stated that

[e]ven if this court were to allow the plaintiff to use her actual discharge date, August 25, 1991, as the date when her claims ripened, that...

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