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August 15, 2005.


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.

  I. Background

  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

  II. Discussion

  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 ...

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