Rosario-Olmedo v. Community School Bd. for Dist. 17, CV-89-1774.

• Decision Date: 29 January 1991
• Docket Number: No. CV-89-1774.,CV-89-1774.
• Citation: 756 F. Supp. 95
• Parties: Carmen Gloria ROSARIO-OLMEDO, Plaintiff, v. COMMUNITY SCHOOL BOARD FOR DISTRICT 17, Dorothy Burke, Albert Bloch, Osceola Fletcher, Abraham M. Flint, and Maurice Gumbs, Defendants.
• Court: U.S. District Court — Eastern District of New York

756 F. Supp. 95

Carmen Gloria ROSARIO-OLMEDO, Plaintiff, v. COMMUNITY SCHOOL BOARD FOR DISTRICT 17, Dorothy Burke, Albert Bloch, Osceola Fletcher, Abraham M. Flint, and Maurice Gumbs, Defendants.

No. CV-89-1774.

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

January 29, 1991.

Kenneth Kimerling, Puerto Rican Legal Defense & Educ. Fund, Inc., New York City, for plaintiff.

Norma Kerlin, Asst. Corp. Counsel, New York City, for defendants.

MEMORANDUM AND ORDER

GLASSER, District Judge:

Plaintiff, Carmen Olmedo, a hispanic woman, was passed over for the position of assistant principal at P.S. 316, an elementary school in Community School District 17 in Brooklyn, New York in favor of a black woman, Barbara Gibbs. She filed this lawsuit against Community School Board 17 and several of its members alleging discrimination on the basis of race and national origin in violation of the Fourteenth Amendment, the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the Civil Rights Act of 1871, 42 U.S.C. § 1981 and § 1983. The complaint also sets out a second claim for relief in which she alleges that in 1985 she sought and was denied the position of Coordinator of English as a Second Language and Bilingual Education in Community School District 17. This claim alleges violations of plaintiff's rights under the First and Fourteenth Amendments and under § 1983. Defendants have moved for summary judgment.

Facts:

Many of the facts of this case are not in dispute. Plaintiff has taught at P.S. 316 (and its predecessor school P.S. 42) since 1963. In the fall of 1988, she applied for the position of assistant principal. Pursuant to regular procedure, applicants for that position are evaluated by a "Screening Committee" named by the Community School Board ("CSB" or "the Board"). The members of that committee are the community superintendent (non-voting), representatives of the CSB, and representatives of the parent association of the school involved. The screening committee's role is to review resumes and conduct interviews, and to submit the names of one or more candidates to the superintendent. The superintendent then submits one or more of those names to the CSB for final selection. In a non-public executive meeting of the Board, a "readiness vote" is taken by which it is determined whether five members of the nine-member CSB are ready to vote for one candidate at the next public session. The final appointment is then made by a majority vote of the CSB at a public session.

To fill the position of assistant principal at P.S. 316, the superintendent submitted three names to the CSB, in order of preference. They were (1) Carmen Olmedo, (2) Barbara Gibbs, and (3) Edwin Rosario. Olmedo and Rosario are hispanic; Gibbs is black. At the May 17, 1989 non-public meeting, a readiness vote was taken, in which three members voted "ready" to select Olmedo and five members voted "ready" to select Gibbs. Plaintiff then filed this lawsuit and unsuccessfully sought a preliminary injunction preventing the CSB from voting Gibbs into the position in public session. Following the Magistrate's denial of the injunction for failure to show irreparable harm, and Judge McLaughlin's affirmance of that denial, the CSB on September 27, 1989 voted in public session to appoint Gibbs. Voting for the appointment of Gibbs were CSB members Dorothy Burke, Claudine Corbanese, Abraham Flint, Gina Gill, Maurice Gumbs, Sylvester Leaks, and James Malone. Voting against was Agnes Green. Not present and not voting was Albert Bloch.

The Title VI Claim

Title VI of the Civil Rights Act of 1984, 42 U.S.C. § 2000d, states:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.

Section 2000d-3 states:

Nothing contained in this subchapter shall be construed to authorize action under this subchapter by any department or agency with respect to any employment practice of any employer, employment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment.

(Emphasis added.) As a threshold requirement for an action under these sections, the federal funds allegedly giving rise to the action must have the "primary objective" of providing employment. See Caufield v. Board of Education of the City of New York, 632 F.2d 999 (2d Cir.1980). Courts have dismissed complaints for failure to specify when funds were received, what they were used for, and whether their primary objective was to provide employment. For example, in Richards v. New York State Dept. of Correctional Services, 572 F.Supp. 1168 (S.D.N.Y.1983), the court dismissed a claim with leave to replead:

Due to the limited facts stated by plaintiffs with regard to their Title VI claims, this Court is unable to determine whether plaintiffs have stated a claim that satisfies this requirement. The amended complaint merely alleges that the defendants have violated Title VI by reason of their use of federal financial assistance in connection with their employment policies and procedures. It is important to note that plaintiffs fail to state that the primary objective of the federal financial assistance received by the Department was to provide employment. Moreover, the plaintiffs have not indicated when and how it used them. Faced with these circumstances, courts have not hesitated to dismiss for failure to state an essential element of the claim. See Sabol v. Bd. of Educ., 510 F.Supp. 892, 896 (D.N. J.1981); Clark v. Louisa Co. School Bd., 472 F.Supp. 321, 323 (E.D.Va.1979).

Id. at 1175 (citation omitted). In Weir v. Broadnax, 1990 WL 195841, 1990 U.S.Dist. Lexis 15795 (S.D.N.Y.), the court also dismissed a claim under Title VI, with leave to replead, when the complaint did allege that the programs in question received federal funding but failed to "state explicitly" that that federal funding was primarily targeted at providing employment.

Plaintiff's complaint in this case fails to allege the receipt of federal funds, their use, and whether their primary purpose is employment. In this motion, which is for summary judgment, the court has been presented with matter outside the pleadings, but such matter has not been enlightening on the issue of receipt and purpose of federal funds. Virtually no evidence has been submitted to demonstrate what federal funds are received and used in any connection with defendants' programs or plaintiff's job. The claim is therefore dismissed, with leave to replead in accordance with the above-noted requirements. Defendant's may renew this motion as to this claim provided it is properly pleaded.

The § 1981 and § 1983 Claims

The elements of a prima facie case and the burdens of production in an employment discrimination claim under § 1981 and § 1983 are well established. They follow the same pattern set out for Title VII claims by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In a claim based on failure to promote, a plaintiff first has the burden of establishing that (1) she was a member of a protected group, (2) she was qualified for the position to which she sought promotion, (3) she was rejected for that position, and (4) the employer continued to offer the position in question to other qualified applicants. Once the plaintiff establishes the elements of the prima facie case, an inference of discrimination arises. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). Two items are important to note here. First, the inference of discrimination arises without the production of evidence which would tend to prove directly that discrimination was involved in the employer's decision — the simple fact that a minority candidate was qualified but rejected in favor of another candidate is sufficient to raise it. Second, this burden is not onerous, and courts have not been encouraged to tarry when its essential requirements have been met.

Next, the defendant employer may rebut the inference of discrimination raised by the prima facie case. This he may do by coming forward with evidence that a legitimate, nondiscriminatory reason motivated his promotion of another candidate. Should he meet this burden, plaintiff then must prove "by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. See Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (§ 1981); Dugan v. Ball State University, 815 F.2d 1132, 1135-36 (7th Cir.1987) (§ 1983); Molthan v. Temple University, 778 F.2d 955, 961 (3d Cir.1985) (§ 1983); Hardin v. Stynchcomb, 691 F.2d 1364, 1369 n. 16 (11th Cir.1982) (§ 1983).

The ultimate burden of proof of discrimination rests on the plaintiff. But because the establishment of a prima facie case alone raises an inference of discrimination, that ultimate burden merges with the plaintiff's burden of proving that the employer's proferred reason is pretextual. This plaintiff may accomplish in either of two ways. Plaintiff may persuade the court with direct evidence that a discriminatory reason more likely than the proffered reason motivated the employer's decision. Or, plaintiff may indirectly persuade the court of pretext by showing that the employer's proffered explanation is not worthy of credence. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. Thus, "a showing that a proffered justification is pretextual is itself sufficient to support an inference that the employer intentionally discriminated." Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989) (emphasis added). This position has been vigorously embraced by the Second Circuit as following...