Opinion
Civ. No. 93-2525 (DRD)
December 1, 1999
Paul Schachter, Esq., REINHARDT SCHACHTER, P.C., for Plaintiff.
Valerie Dion, Esq., MURRAY, MURRAY, CORRIGAN, for Defendants, Hoboken Board of Education and Individual Board Members.
Paulette L. Pitt, Esq., HAYDEN SILBER, for Defendant, Edwin Duroy.
O P I N I O N
This employment discrimination action has been brought by plaintiff Theodore Jenkins against the Hoboken Board of Education, its Superintendent of Schools, and the individual Board members. Plaintiff' complaint alleges six causes of action against these defendants, as follows:
1) violation of plaintiff's civil rights pursuant to 42 U.S.C. § 1981 ("§ 1981");
2) violation of plaintiff's civil rights pursuant to 42 U.S.C. § 1983 ("§ 1983");
3) violation of the New Jersey Law Against Discrimination ("NJLAD");
4) deprivation of property in violation of the New Jersey State Constitution;
5) breach of the covenant of good faith and fair dealing, and;
6) violation of the public policy of the state of New Jersey.
Four motions are currently pending before the Court. The first is a motion brought by defendants Hoboken Board of Education ("Board") and the individual Board members ("Members") seeking a waiver of the page-limit rule for the brief in support of their motion for summary judgment. While these defendants could easily have met the page limit by deleting some of the more frivolous arguments from their brief, this motion is unopposed and will be granted.
In the interest of fairness, it should be noted that plaintiff's brief in opposition to defendants' motions also exceeds the page limit imposed by the rules of this district.
The second motion is brought by plaintiff, seeking partial summary judgment as to his tenure claim. The third is a motion for summary judgment brought by the Board and the Members, the fourth a motion for summary judgment brought by defendant Edwin Duroy ("Duroy"). The resolution of these three motions will be discussed below.
STATEMENT OF FACTS
Plaintiff Theodore Jenkins is an educator with a doctoral degree in education from Rutgers University. He was appointed as the Director of Curriculum for the defendant Hoboken Board of Education ("the Board") in January 1988. He obtained tenure in January of 1991 and remained in his position as Director of Curriculum until June 30, 1991, when the position was abolished by the Board.
Shortly before the Director of Curriculum position was abolished, the Board created a new administrative position entitled Curriculum Supervisor of Science and Social Studies ("the Supervisor Position"). The Board filled this position with a candidate named Lawrence Yacullo ("Yacullo"), formerly the head of the science department at Hoboken High School.
Approximately one year after plaintiff's position was eliminated, the Board created a second new administrative position, titled the Director of School Improvement ("the Director Position"). This position was filled by James Lerman.
Plaintiff alleges that the responsibilities of the Supervisor and Director Positions included responsibilities previously performed by the Director of Curriculum, and that the Board's failure to place him in these positions, as well as the decision to abolish the Director of Curriculum Position, constituted discrimination on the basis of race and age and a violation of his tenure rights under New Jersey law. He avers that neither Yacullo nor Lerman had the same level of qualifications and experience as plaintiff, and that they were selected primarily because they were younger, white male candidates who would appeal to the influx of young white professionals moving into Hoboken.
Plaintiff is African-American and was born on July 29, 1933, making him 58 years old at the time when his employment was terminated.
STANDARD OF REVIEW
Summary judgment will be granted if the record establishes that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
Rule 56(c) imposes a burden on the moving party simply to point out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met this burden, the burden then shifts to the opposition to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The evidence need not be in a form that would be admissible at trial. Celotex, 477 U.S. at 324. However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. at 247. In determining whether there exists a material issue of disputed fact, however, the facts and the inferences to be drawn from the facts are to be viewed in the light most favorable to the nonmoving party. Pollock v. American Tel. Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).
In addition to being genuine, the disputed facts must be material, as determined by the substantive law. Anderson, 477 U.S. at 248. Debate over extraneous issues will not suffice; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
DISCUSSION
I. PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff asserts that under New Jersey law his status as a tenured employee with the Board entitled him to the Supervisor Position, and moves for an order to that effect. Defendants first respond that the Court lacks jurisdiction to determine this issue because exclusive jurisdiction over tenure matters has been granted to the New Jersey Commissioner of Education. Second, they contend that summary judgment is unavailable because issues of fact remain as to whether plaintiff served as a supervisor in his former position and whether he had the necessary science and social studies background to qualify him for the Supervisor Position.
N.J.S.A. 18A:28-12 provides that if a tenured teaching employee is dismissed as a result of a reduction, he will be eligible, in order of seniority, "for reemployment whenever a vacancy occurs in a position for which such person shall be qualified, and he shall be reemployed by the body causing dismissal, if and when such vacancy occurs. . . ."
While New Jersey law provides that the Commissioner of Education has primary jurisdiction to hear and determine all controversies arising under the school laws, Bower v. Board of Educ. of East Orange, 149 N.J. 416, 420 (1997); N.J.S.A. § 18A:6-9 (West 1989), plaintiff's tenure claim is so intermeshed with his discrimination claims under federal law that this Court has jurisdiction to hear it pursuant to 28 U.S.C. § 1367. None of the grounds to decline supplemental jurisdiction provided in § 1367(c) are present here, nor are any of the concerns addressed by the various abstention doctrines. See Ryan v. Johnson, 115 F.3d 193 (3d Cir. 1997); Trent v. Dial Med., 33 F.3d 217 (3d Cir. 1994) (discussing Colorado River abstention); O'Neill v. City of Philadelphia, 32 F.3d 785 (3d Cir. 1994) (discussing Younger abstention); General Glass Indus. v. Monsour Med. Found., 973 F.2d 197 (3d Cir. 1992) (discussing Burford abstention); Biegenwald v. Fauver, 882 F.2d 748 (3d Cir. 1989) (discussing Pullman abstention). Resolution of the tenure issue is especially appropriate here because the New Jersey Administrative Law Judge has entered an order staying the Commissioner of Education proceedings regarding plaintiff's tenure pending resolution of plaintiff's federal case. See Exhibit "A" annexed to the Board and Members' Brief in Opposition to Plaintiff's Motion.
28 U.S.C. § 1367 provides for supplemental jurisdiction "over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy. . . ."
It does appear, however, that significant factual issues remain which make summary resolution of plaintiff's tenure claims inappropriate. Plaintiff's motion for partial summary judgment will consequently be denied.
These factual issues are discussed infra in Section II(H)(1)(a) of the Discussion.
II. DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
The Board and Members have moved for summary judgment dismissing plaintiff's complaint in its entirety. Defendant Duroy has joined in that motion, adopting its arguments, and has submitted an additional brief in support of his own motion for summary judgment.
The primary thrust of defendants' briefs is that plaintiff has failed to produce sufficient evidence to support his claims. The briefs also raise several issues of law regarding certain counts of the complaint. These issues will be addressed first.
A. Preemption
In Point VIII of their brief, the Board and Members assert that Count VI of the complaint, alleging that defendants violated the public policy of the State of New Jersey, is subject to dismissal because it is based on the same facts as plaintiff's discrimination claims under NJLAD and § 1981. They observe that under New Jersey law, a common law cause of action cannot be maintained if based on the same allegations as a statutory cause of action. See Catalane v. Gillian Instrument Corp., 271 N.J. Super. 476, 491-92 (App.Div. 1994); see also Butler v. Sherman, Silverstein Kohl, 755 F. Supp. 1259, 1265 (D.N.J. 1990) (holding that "the [New Jersey] Supreme Court does not intend to allow a supplementary common law cause of action where the NJLAD provides a remedy for the wrong").
Plaintiff notes that adverse employment decisions can give rise to a cause of action for violation of public policy, citing Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980), and remarks that the New Jersey Supreme Court has never expressly held that NJLAD preempts Pierce claims. While both of these observations are true, the Butler court specifically found Pierce claims to be preempted, a holding endorsed by the New Jersey Appellate Division court in Catalane. Unless and until the New Jersey Supreme Court decides otherwise, these cases stand as precedent. Count VI of plaintiff's complaint will be dismissed.
B. Individual Liability Under NJLAD
Defendants contend that Count III of plaintiff's complaint, alleging violation of NJLAD, must be dismissed as to the Members because there is no individual liability under NJLAD under the circumstances of this case.
This is apparently the substance of defendant Duroy's second point, which states simply that "Dr. Duroy, as Superintendent, is entitled to qualified immunity from suit in this action as he is not the employer." Brief of Defendant Duroy at 14.
This district has held that the only basis for individual employee liability under NJLAD is found in the "accomplice liability" language of N.J.S.A. § 10:5-12(e). Tyson v. Cigna Corp., 918 F. Supp. 836, 840 (D.N.J. 1996). Tyson, defendants argue, stands for the proposition that non-supervisory employees cannot be held liable for discrimination under the NJLAD. They contend that the Members, as individuals, cannot be liable because they are not plaintiff's "employer" within the meaning of NJLAD, nor are they supervisory employees.
N.J.S.A. § 10:5-12(e) makes it "an unlawful employment practice, or . . . an unlawful discrimination . . . for any person, whether an employer or employee or not, to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this act, or to attempt to do so."
The Tyson decision rested on the assumption that "a non-supervisory employee who engages in discriminatory conduct does not aid or abet the employer's failure to take corrective action. A non-supervisory employee has no role whatever in his employer's reaction his discriminatory conduct." 918 F. Supp. at 840-41. This assumption in turn rested on the understanding that "in order to aid or abet another to commit an unlawful act, it is necessary that the defendant wilfully and knowingly associate himself in some way with the unlawful act, and that he wilfully and knowingly seek by some act to help make the unlawful act succeed." Id. at 840.
Plaintiff herein alleges that the abolition of the Director of Curriculum position and the appointment of Yacullo and Lerman to the Supervisor and Director Positions were unlawful discriminatory acts directed at plaintiff. To hold that the Board Members who voted in favor of these resolutions did not "wilfully and knowingly associate [themselves] in some way with the unlawful act," or "wilfully and knowingly seek by some act to help make the unlawful act succeed" would defy logic. Indeed, it would have been absolutely impossible for the plaintiff's employer to have engaged in the discrimination alleged without the votes of the Members. Under the circumstances of this case, NJLAD provides for individual liability.
This is true regardless of whether the Members are considered "employees". N.J.S.A. § 10:15-12(e) applies to unlawful conduct by "any person, whether an employer or an employee or not. . . ."
C. Non-Retroactivity of Section 101, Civil Rights Act of 1991
Defendants aver that Count I of the Complaint, alleging violation of § 1981, cannot be maintained because it is based on the termination of plaintiff's contract, which occurred before amendment of § 1981 on November 21, 1991.Section 1981(a) states, in relevant part, that all persons within the United States "shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." In 1989, a bare majority of the United States Supreme Court held that § 1981's protections did not apply to "conduct by the employer after the contract relation has been established. . . ." Patterson v. McLean Credit Union, 491 U.S. 164, 177 (1989). The resulting outcry over the decision led Congress to amend § 1981, designating the existing text as subsection (a) and adding subsections (b) and (c). See Section 101 of the Civil Rights Act of 1991 ("1991 Act"), Pub.L. No. 102-166, 105 Stat. 1071, 1071-72. Subsection (b) defines "make and enforce contracts" to include "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b) (emphasis added).
In Rivers v. Roadway Express, Inc., 511 U.S. 298, 303 (1994), the Supreme Court held that Section 101 of the 1991 Act, amending § 1981, "does not apply to cases that arose before its enactment." Section 402(a) of the 1991 Act states that "amendments made by this Act shall take effect upon enactment," making November 21, 1991 the effective date of the amendment. 105 Stat. 1099. Plaintiff's position was terminated on June 30, 1991.
As plaintiff correctly notes, however, his § 1981 claim also encompasses allegations that the defendants discriminated against him by failing to place him in the Supervisor Position and failing to provide him employment as the Director of School Improvement.See plaintiff's brief in opposition at 43. These allegations, if substantiated, would constitute discrimination in the making of an employment contract, conduct prohibited by § 1981 long before the 1991 amendment. Defendants are entitled to a partial dismissal of Count I of the Complaint, but only to the extent that it is based on plaintiff's termination.
D. Qualified Immunity
Defendants' briefs assert that they are entitled to qualified immunity for their actions. Qualified immunity is intended to protect public officials who are required to exercise discretion, shielding them from civil liability insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 807-18 (1982); Anderson v. Creighton, 483 U.S. 635, 638-39 (1987). The qualified immunity defense is judged on an objective legal standard. Harlow, 457 U.S at 818. An inquiry into the subjective motivations for the defendant's conduct is not permitted. See Harlow at 818-19; Showers v. Spangler, 182 F.3d 165, 171 (3d Cir. 1999).
Determining whether qualified immunity is available requires a two-step analysis. See Showers at 171. First, it must be determined whether the conduct alleged by the plaintiff violated a clearly established principle of constitutional or statutory law. Id. This question must be addressed at an appropriate level of specificity. Id. at 172. Second, if the defendant's conduct is found to have violated clearly established law, the court must decide whether the unlawfulness of the action would have been apparent to an objectively reasonable official. Id. at 171. Put another way, the objective reasonableness test is met if officers of reasonable competence could disagree on the legality of the defendants' actions. See Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995), quoting Malley v. Briggs, 475 U.S. 335, 341 (1986).
Here, the first question can be defined as whether it was clearly established, at the time of plaintiff's termination in June of 1991, that eliminating a person's job title and refusing to hire him for another position for which he was otherwise qualified on the basis of his age or race was unlawful. Age discrimination in employment has been prohibited since at least 1967, when the Age Discrimination in Employment Act was passed. See 29 U.S.C. § 621, et seq. Employment discrimination on the basis of race has violated federal law since the enactment of Title VII of the Civil Rights Act of 1964, and discrimination in the making of employment contracts has been barred by § 1981 since 1866. Moreover, racial and age-based discrimination were barred by the NJLAD. If plaintiff's allegations as to defendant's conduct can be proven, then the defendants have violated law which was clearly established at the time of plaintiff's termination.
As for the second part of the inquiry, the unlawfulness of the defendants' alleged conduct would have been readily apparent to any objectively reasonable official; this is simply not an issue on which "officers of reasonable competence could disagree." The defendants are not entitled to qualified immunity for their alleged actions.
E. The Covenant of Good Faith and Fair Dealing
Defendants assert that Count V of the complaint, alleging breach of the covenant of good faith and fair dealing, should be dismissed because plaintiff's allegations are directed at conduct which occurred after his contract had already expired.
New Jersey recognizes the implied covenant of good faith of fair dealing in every contract. Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420 (1997). Each party covenants that "neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract." Id.
Defendants observe that plaintiff's employment contract was scheduled to expire on June 30, 1991. Plaintiff was not terminated prior to the end of his contract, and his contract offered no guarantees of continued employment. In fact, the Board's Policy No. 302 specifically reserved the right "to abolish positions in the district . . . whenever reasons of economy, reorganization of the school district, reduction in the number of pupils or other good cause warrant such action," a right given to the Board by N.J.S.A. § 18A:28-9. See Declaration of Valerie J. Dion at Exhibit B. Thus, plaintiff received all of "the fruits of the contract" to which he was entitled.
Plaintiff argues, notwithstanding, that he was covered by a collective negotiations agreement to which he was a third party beneficiary. Labor grievances are a matter for arbitration and are not the province of this Court.
He next argues that "the employer's oral policies establish an employment contract," citing Shebar v. Sanyo Business Systems, Inc., 218 N.J. Super. 111, 120 (App.Div. 1987). Shebar holds simply that the enforceability of employer policy statements assuring termination of employment for good cause only is not limited to statements appearing in written manuals. Id. Plaintiff has failed to provide evidence of any such oral policy assuring him of continued employment. Even if he had, such a policy would only prevent the Board from firing plaintiff without good cause; it would not preclude the Board from eliminating plaintiff's position entirely, as permitted by N.J.S.A. § 18A:28-9.
Finally, plaintiff contends that New Jersey tenure law and regulations establish an employment contract to which public school districts must adhere. As discussed in Section I above, tenure matters must be addressed to the New Jersey Commissioner of Education, although it may be noted that the Board's right to abolish positions cannot be limited by any law relating to tenure of service. See N.J.S.A. § 18A:28-9. Count V of plaintiff's complaint will be dismissed.
F. Dismissal of the § 1983 Claim as Against Defendant Board
Defendants argue that the § 1983 claim as against the Board must be dismissed because plaintiff cannot substantiate the existence of a pattern or practice of discrimination against African-Americans. They contend that absent proof of such a pattern or practice, the Board cannot be held responsible for the actions of its members because § 1983 does not create vicarious liability for an individual employee's actions.
In Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 663 (1978), the Supreme Court held that local municipalities are subject to suit under § 1983. Recognizing that municipalities can act only through natural persons, the Court held that local governments are not liable for all employee actions under the doctrine of respondeat superior. Instead, the Court held that local governing bodies can be sued only where the action that is alleged to be unconstitutional "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. at 690. The Court also recognized, however, that municipalities "may be sued for constitutional deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Id. at 690-91.
Defendants misconstrue the holding of Monell and subsequent cases as requiring plaintiff to prove the existence of a custom or practice of unlawful conduct before municipal liability can attach. To the contrary,Monell established liability where the employee's conduct is the result of an official policy or custom. In other words, establishing the existence of a pattern or practice is simply an alternative method for tracing the illegal conduct of individual employees to a municipality, to be used where there is no formally adopted policy.
It has long been established, however, that a single unlawful act can give rise to municipal liability under § 1983 where it results from a decision taken by the highest officials responsible for setting policy in that area of the government's business. See Owen v. City of Independence, 445 U.S. 622 (1980) (municipal liability based on City Manager's decision to unlawfully discharge plaintiff); Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) (municipal liability based on City Council's decision to cancel contract); Pembaur v. Cincinnati, 475 U.S. 469 (municipal liability based on County Prosecutor's search and seizure order to deputy sheriffs).
In Board of Commr's of Bryan County v. Brown, 520 U.S. 397, 404 (1997), the Court again acknowledged that a single decision may give rise to municipal liability if it is the "moving force" behind the injury alleged, i.e. the plaintiff "must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Significantly for this case, the Court noted the distinction between "cases that present no difficult questions of fault and causation and those that do." Id. at 405. The Court remarked that municipal liability is "obvious" in cases involving "formal decisions of municipal legislative bodies," triggering liability if the decision itself is found to be unlawful. Id. at 406 (citing Owen and Fact Concerts).
In this case, the defendant Board is the final policymaker charged with establishing and abolishing positions within the Hoboken School District. The Board's official decisions, which form the basis of plaintiff's complaint, constitute official policy and are obviously the "moving force" behind plaintiff's alleged injuries. If the Board's decisions prove to have been unlawful because they were motivated by age-based or racial discrimination against plaintiff, then the Board's liability under § 1983 would be clear regardless of the existence of a pattern or practice of prior discrimination.
G. Due Process Claim Under the New Jersey Constitution
Plaintiff's fourth cause of action alleges violation of his property rights under the New Jersey State Constitution. Defendants view this cause of action as alleging a violation of procedural due process. They seek dismissal of this claim, arguing that because plaintiff's position as Director of Curriculum was eliminated altogether, plaintiff "was not entitled to any more process than that which he received." Defendant Board and Members' brief at 63.
Plaintiff does not address defendants' due process argument. Instead, although plaintiff's complaint is by no means clear on this point, he construes his fourth cause of action as alleging an equal protection claim. The New Jersey Supreme Court has held that employment discrimination can constitute a violation of equal protection of the right to acquire property within the meaning of the New Jersey Constitution. See Peper v. Princeton Univ. Board of Trustees, 77 N.J. 55, 76-80 (1977). While Peper specifically addressed gender discrimination, the Court's logic is equally applicable to racial or age-based discrimination: if plaintiff was terminated or was not hired because he was African-American or because of his age, he was denied the same right to acquire property that is guaranteed to all persons under Article I, ¶ 1 of the New Jersey Constitution. See id. at 79. "The right to acquire property would be a hollow one indeed if it did not protect individuals from being invidiously denied the opportunity to obtain the means necessary to acquire that property." Id. at 79-80. Thus, the merit of plaintiff's fourth cause of action is tied to the sufficiency of the evidence supporting his allegations of racial and age-based discrimination, which will be discussed below.
H. Sufficiency of the Evidence
Turning finally to the substance of plaintiff's claims, defendants argue that Counts I, II, and III of the Complaint should be dismissed because plaintiff has failed to adduce sufficient facts to permit a finding that any defendant discriminated against him on the basis of his race or age. Plaintiff has alleged discrimination in regards to three actions taken by defendants: 1) the abolishment of his position as Curriculum Director; 2) the appointment of Yacullo instead of plaintiff for the Supervisor Position, and; 3) the appointment of James Lerman instead of plaintiff for the Director Position.
1. § 1981, NJLAD, and New Jersey Constitutional Claims
In the Third Circuit, the elements of an employment discrimination claim under § 1981 are identical to the elements of a claim under Title VII of the Civil Rights Act of 1964. Schurr v. Resorts Intern. Hotel, Inc., 16 F. Supp.2d 537, 556 (D.N.J. 1998). Likewise, the analysis for employment discrimination claims brought under NJLAD and under the New Jersey Constitution is essentially the same as that for claims brought under Title VII. See Romano v. Brown Williamson Tobacco Corp., 284 N.J. Super. 543 (App.Div. 1995) (standard of review for employment discrimination claims under NJLAD same as that for Title VII); Peper, 77 N.J. at 81.
The only substantive difference to these alternative theories is the more limited scope of § 1981's protection. Section 1981 provides a federal remedy against racial discrimination in private and public employment. See Schurr, 16 F. Supp.2d at 537. By its terms, § 1981 applies only to racial discrimination, see Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987), and its application been limited to intentional discrimination. Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989); General Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 389 (1982). Accordingly, § 1981 provides no remedy for plaintiff's allegations of age-based discrimination, nor, as discussed in Section II C above, will it provide a remedy for plaintiff's allegedly unlawful termination.
To establish a prima facie case of employment discrimination, a plaintiff must raise a rebuttable inference of discrimination by showing that: 1) he is a member of a protected class; 2) that he has applied for and was qualified for a position, but was rejected despite those qualifications, and; 3) the position remained open with the employer continuing to search for applicants with claimant's qualifications.Schurr at 552, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Once a plaintiff establishes a prima facie case of discrimination, the burden of production shifts to the defendant employer to articulate some legitimate, non-discriminatory reason for the adverse employment action.Bray v. Marriott Hotels, 110 F.3d 986 (3d Cir. 1997). "If the employer satisfies its burden of production, then the plaintiff must produce evidence from which a reasonable factfinder could conclude either that the defendant's proffered justifications are not worthy of credence or that the true reason for the employer's act was discrimination." Bray, 110 F.3d at 990.
a. Plaintiff's Prima Facie Case
Plaintiff is a member of a protected racial class, satisfying the first element of the prima facie case. He has also established that his former position was terminated and that he was not offered employment in either of the new positions. Defendants submit that plaintiff has failed to produce evidence, however, that he applied for the Supervisor Position. While plaintiff apparently does not dispute this fact, the Third Circuit has held that a plaintiff need not necessarily file a formal application to establish that he "applied" for a position. See Fowle v. CC Cola, 868 F.2d 59, 68 (3d Cir. 1989). Generally, it is sufficient that the employer had some reason or duty to consider him for the post. See id.
Plaintiff had been employed by the Board for almost twelve years at the date of his termination, and defendants were well aware that abolishment of the Curriculum Director position would leave plaintiff out of a job. Under such circumstances, the Board had at least reason to consider plaintiff for the Supervisor Position, and possibly a duty as imposed by N.J.S.A. 18A:28-12. There is no dispute that plaintiff applied for the Director Position.
Defendants next contend that plaintiff was not qualified for either position. They argue that he was not qualified for the Director Position because the position requires a principal's certificate, which plaintiff admittedly does not have. Plaintiff alleges that he was otherwise qualified for the Director Position, which was created after plaintiff's position was abolished, and that the principal's certificate requirement was imposed to deliberately exclude him from the position. Defendants counter that they have provided a legitimate, nondiscriminatory reason for the requirement.
Specifically, defendants state that the Board wanted the Director of School Improvement to have experience, training, and qualifications at the individual school level, or "down in the trenches" as defendant Duroy describes it, as opposed to a district level administrator. Defendants also note that not all of the Members who voted to create the Director Position were the same Members who had voted to abolish plaintiff's position. Finally, several of the defendants have testified that they were not aware that plaintiff lacked a principal's certificate.
Thus, the burden lies with plaintiff to show that the articulated reason for requiring a principal's certificate is "not worthy of credence or that the true reason for the employer's act was discrimination."Bray, 110 F.3d at 990. Plaintiff asserts that the differences between a principal's certificate and an administrator's certificate did not warrant exclusion of someone with an administrator's certificate, noting that under New Jersey State Board of Education regulations either certificate is deemed sufficient for a director position. Plaintiff also observes that the Director Position is a district-wide position, and that administrator's certificates are generally required for a district-wide position.
This evidence, while by no means overwhelming, is sufficient to "cast doubt on the employer's stated reason" for requiring a principal's certificate. See Marzano v. Computer Science Corp., Inc., 91 F.3d 497, 509 (3d Cir. 1996). The Third Circuit has noted that because the outcome of employment discrimination cases turns solely on the credibility of the employer's motivation for a particular action, "summary judgment is in fact rarely appropriate in this type of case. Id. Simply by `pointing to evidence which calls into question the defendant's intent, the plaintiff raises an issue of material fact which, if genuine, is sufficient to preclude summary judgment." Id., quoting Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir. 1987). Thus, there is at least a factual issue regarding plaintiff's prima facie case as to the Director Position.
Completing his prima facie case, plaintiff has established that the Director and Supervisor positions were filled by other candidates. He has shown that the Supervisor and Director positions involved at least some similar duties to his former position, and that they were filled by younger, white candidates with similar qualifications, giving rise to a rebuttable inference of racial discrimination.
b. Defendants' Proffered Explanations
Defendants assert that they have articulated a legitimate nondiscriminatory reason for all three of the employment decisions. Starting with the elimination of plaintiff's job title, defendants assert that the Curriculum Director Position was abolished due to budgetary concerns. They note that all of the witnesses in this case have acknowledged that the Board was financially troubled. The abolition of plaintiff's position was recommended to the Board by defendant Duroy, who asserts that the decision was based on his belief that the school district could most easily do without the administrative position, as its duties could be absorbed by other personnel. Other defendants have indicated that they believed the Curriculum Director had already served its purpose of revising the curriculum, and so the position was no longer needed.
As to the Supervisor Position, defendants assert that Duroy recommended Yacullo because he was the best candidate for the position. He had the necessary science background and had already been exercising significant responsibilities in the district's science program. Similarly, defendants assert that James Lerman was chosen for the Director Position because they believed him to be "the best qualified for the unique position they had created." In particular, defendants note Lerman's experience as a principal and in teacher training. He was viewed by some defendants as an outsider unfettered by political ties within the district. In addition, as discussed above, Lerman held the required principal's certificate, while plaintiff did not.
c. Evidence of Pretext
The burden shifts to plaintiff to produce credible evidence that will cast doubt on defendants' asserted reasons for these employment decisions.
Regarding the elimination of plaintiff's position as Director of Curriculum, economic considerations are not a complete defense to a charge of employment discrimination. It is possible to find racial discrimination where an employer has applied a reduction in force. See,e.g., Marzano v. Computer Science Corp, Inc., 91 F.3d 497 (3d Cir. 1996). Where it is possible for a jury to infer that economic considerations were not the true motivation for a reduction in force, summary judgment cannot be granted. See id. at 508. As plaintiff notes, defendants' purported concern for economic considerations is inconsistent with the creation of two new administrative positions (the Supervisor and Director Positions) in the following year. In addition, plaintiff's job title was the only administrative position abolished, and defendants apparently did not give much consideration to possible alternatives to eliminating plaintiff's position. While this evidence again is not overwhelming, it is sufficient to cast doubt on defendants' proffered reason for abolishing plaintiff's job title.
As for the failure to place plaintiff in the Supervisor Position, plaintiff argues that defendants' explanation is suspect because he was, in fact, better qualified than Yacullo for the Supervisor Position. Defendants assert that courts and juries should not intrude into an employer's subjective determinations regarding an employee's qualifications, citing Ezold v. Wolf, Block, Schorr Solis-Cohen, 983 F.2d 509, 527 (3d Cir. 1992). While it is true that courts cannot substitute their judgment for that of the employer, the issue is not whether plaintiff was more qualified, but rather whether his alleged lack of qualifications was the real reason plaintiff was not chosen for the Supervisor Position. Plaintiff's education and experience as an administrator, when considered in the overall context of this case, are sufficient to raise an issue as to the legitimacy of defendants' explanations, a credibility issue which can only be resolved at trial.
Finally, the issues of fact regarding the defendants' requirement of a principal's certificate for the Director Position have already been outlined. Defendants' motions for summary judgment as to Counts I, II, and III of the complaint will be denied.
2. § 1983
Section 1983 provides a remedy for violations of rights created by the Constitution or federal law. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907 (3d Cir. 1997); Maine v. Thiboutot, 448 U.S. 1 (1980). Plaintiff alleges violations of his equal protection rights and a due process violation of a property interest in his tenured position. Plaintiff's allegations of intentional discrimination are sufficient to establish a violation of either of these rights.
The property interests that are protected by the due process clause of the Fourteenth Amendment are created and defined by existing rules and understandings that stem from an independent source such as state law.Richardson v. Felix, 856 F.2d 505, 508 (3d Cir. 1988), quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Plaintiff alleges that he has a protected property right in continued employment because he was granted tenure in his position as Director of Curriculum, such that "he was entitled to hold his job unless he was removed for cause under defined procedures." Plaintiff's brief in opposition at 34.
Defendants argue that because plaintiff's position as Director of Curriculum was eliminated entirely, plaintiff's tenured status did not entitle him "to any more process than that which he received." While this may be true as a matter of procedural due process, the due process clause of the Fourteenth Amendment also contains a substantive component that bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them. Zinermon v. Burch, 494 U.S. 113, 125 (1990), quoting Daniels v. Williams, 474 U.S. 327, 331 (1986). Moreover, plaintiff's allegations of intentional discrimination describe a violation of § 1981, which may also be remedied under § 1983. See Jett v. Dallas Independent School Dist., 491 U.S. 701 91989). Because issues of fact remain as to these allegations, defendants' motions for summary judgment as to Count II of the complaint will be denied.
CONCLUSION
For the foregoing reasons, defendants Board and Members' motion to extend the page limit for the brief in support of their motion will be granted; plaintiff's motion for partial summary judgment will be denied; defendants' motions for summary judgment will be granted as to plaintiff's fifth and sixth causes of action and as to plaintiff's first cause of action to the extent that it based on the termination of his position as Curriculum director, dismissing those claims with prejudice; the defendants' motions for summary judgment as plaintiff's remaining causes of action will be denied. An appropriate order shall enter.