The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge
This matter is before the court on a motion for summary
judgment filed by Defendant, the State-Operated School District
of the City of Newark (the "District"). Plaintiff, Selina Major
("Plaintiff"), alleges violations under Title VII of the Civil
Rights Act of 1964 ("Title VII"), 42 U.S.C. ยง 2000e, et seq. for discrimination based on race and
color. Specifically, Plaintiff alleges the District failed to
employ her, terminated her employment and failed to promote her
because she is African-American.*fn1
Plaintiff filed a discrimination charge with the Equal
Employment Opportunity Commission ("EEOC") and the New Jersey
Division of Civil Rights on or about February 28, 2003. The EEOC
took over the investigation and on September 26, 2003, it sent
Plaintiff a Right to Sue letter. Plaintiff filed her Complaint in
this Court on September 26, 2003. For the reasons set forth
below, Defendant's motion will be granted.
On or about October 21, 2001, the District hired Plaintiff as a
per diem attendance counselor and she began training for the
position. On or about March 15, 2002, Plaintiff was appointed as
a full time attendance counselor. Plaintiff and those in
positions similar to hers throughout the district were
represented by the New Jersey Department of Personnel (the
"DOP"), the New Jersey Department of Education (the "DOE") and
the Newark Teachers Union (the "Union"). Following the 2001-2002
school year, the District experienced a budget shortfall of
$89,000,000 due to a significant cut in state funding. As a
result of the cut, the District was required to undergo a
reduction in force ("RIF"). During the RIF, the District
consulted with and provided information to DOP, DOE, and Union
officials and representatives. Eventually, the District's ten non-tenured attendance
counselors,*fn2 including Plaintiff, were laid off as a
result of the RIF.*fn3 Laid off employees were placed on a
recall list in the event there was a vacancy in the District for
an attendance counselor position (the list would be recalled
according to seniority). The ten counselors were laid off in
reverse order of seniority. On July 1, 2002, Plaintiff was
informed that she was being laid off pursuant to the
district-wide RIF. After being laid off, Plaintiff worked as a
per diem attendance counselor for the District, receiving daily
assignments from January 2003 through the end of the 2002-2003
school year. In December 2003, Plaintiff was recalled to a
permanent attendance counselor position,*fn4 resulting in a
salary increase.
In or around July 2002 Plaintiff applied for an open management
assistant position in the District's budget office. The
management assistant position was a promotional vacancy.
Plaintiff took the required civil service examination and was
ranked first (along with two other individuals) on the open
competitive list issued March 27, 2002. Plaintiff also took a
separate promotional examination, for which an October 23, 2002
eligibility roster was issued. Plaintiff was not on that
eligibility roster.
Plaintiff was not chosen to fill the management assistant
position; instead Carmen Perez, who was ranked on the promotional list,*fn5 was ranked
twelfth on the open competitive list, and was serving on a
provisional bases in the management assistant position in the
budget office, was chosen to fill the position.*fn6 On June
17, 2002, Sarah Greene, who ranked first along with Plaintiff on
the open competitive list and also ranked on the promotional
list, was appointed from the list to fill a different management
assistant position in the District.
After Perez was appointed, Plaintiff wrote to the DOP and
requested that it investigate Perez's promotion. Plaintiff also
placed a verbal complaint with Valerie Stutesman, a Human
Resource Consultant for the DOP. The DOP investigated the matter,
and on April 16, 2003, Stutesman wrote to Plaintiff explaining
that Perez had priority for the management assistant position
because she was ranked on the promotional list. The DOP further
concluded that Perez's promotion was not a violation of civil
service rules and that the District was not in a position in
which it could have used the open competitive list to fill the
vacancy.*fn7
A. Summary Judgment Standard
A motion for summary judgment will be granted if after drawing
all inferences in favor of the nonmoving party, "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 a judgment as a matter of law". Fed.R.Civ.P.
56(c); Apalucci v. Agora Syndicate, Inc., 145 F.3d 630, 631 (3d
Cir. 1998) ; Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989);
Davis v. Portline Transportes Maritime Int'l, 16 F.3d 532, 536
n. 3 (3d Cir. 1994); Pollock v. Am. Tel. & Tel. Long Lines,
794 F.2d 860, 864 (3d Cir. 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). A
genuine issue may exist if the record taken as a whole could lead
a rational trier of fact to find for the party opposing summary
judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
Under Fed.R.Civ.P. 56(c), the moving party bears the burden
of pointing out to the district court an absence of evidence to
support the nonmoving party's case. Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). The court will take the nonmoving
party's allegations of fact as true. Goodman v. Mead Johnson &
Co., 534 F.2d 566, 573 (3d Cir. 1976). If the moving party meets
its burden, the opposition bears the burden ...