United States District Court, D. New Jersey
August 15, 2005.
SELENA MAJOR Plaintiff,
STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, Defendants.
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. § 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
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
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
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 of "set[ting] forth
specific facts showing that there is a genuine issue for trial."
B. Title VII
Title VII prohibits an employer from discharging any
individual, or otherwise discriminating against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race or
color. 42 U.S.C. § 2000e-2(a)(1); West v. Philadelphia Elec.
Co., 45 F.3d 744, 752 (3d Cir. 1995). In Title VII claims, complainant bears the initial burden of
establishing a prima facie case of unlawful discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In
a failure to promote claim at this first stage of a three-step
process, a plaintiff must show that he or she is a member of a
protected class, that he or she was qualified for the position in
question, and that after her rejection the position remained open
and the employer continued to search for a candidate with similar
qualifications to those of plaintiff. Id.; St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993); Texas Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981); Bray v. Marriott
Hotels, 110 F.3d 986, 990 n. 5 (3d Cir. 1997); Sheridan v. E.I.
DuPont de Nemours & Co., 100 F.3d 1061, 1066 n. 5 (3d Cir.
1996); Anderson v. Consol. Rail Corp., 297 F.3d 242, 249 (3d
Cir. 2002); Sarullo v. United States Postal Serv.,
352 F.3d 789, 797 (3d Cir. 2003). Once a plaintiff establishes a prima
facie case of discrimination, at the second step, the burden
shifts to the employer who is required to articulate some
legitimate, nondiscriminatory reason for the adverse action taken
against the employee. McDonnell Douglas Corp. v. Green,
411 U.S. at 802; Texas Dep't of Cmty. Affairs v. Burdine,
450 U.S. at 254. At the final step, the burden shifts back to the
Plaintiff to "establish by a preponderance of the evidence that
the employer's proffered reasons were merely a pretext for
discrimination, and not the real motivation for the unfavorable
job action". Sarullo v. United States Postal Serv.,
352 F.3d at 797 (citations omitted).
"On a motion for summary judgment, the district court
determines whether the Plaintiff has cast sufficient doubt upon
the employer's proffered reasons to permit a reasonable
fact-finder to conclude that the reasons are incredible."
Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d at 1072. A
plaintiff is charged with demonstrating weaknesses,
implausibilities, inconsistencies, incoherences, or
contradictions in the employer's proffered legitimate reasons for
its action such that a reasonable fact-finder could find them unworthy of
credence. Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).
As stated above, to prevail on a failure to promote claim under
Title VII, Plaintiff must establish as part of her prima facie
case that she was qualified for the open position, that after her
rejection the position remained open, and that the employer
continued to search for a candidate of Plaintiff's skills. Bray
v. Marriott Hotels, 110 F.3d at 989-990. Plaintiff's burden in
establishing a prima facie case is to produce enough evidence
to allow the trier of fact to infer the fact at issue. Scott v.
IBM Corp., 196 F.R.D. 233 (D.N.J. 2000). Evidence set forth to
establish a prima facie case must be established by a
preponderance of the evidence. Sarullo v. United States Postal
Serv., 352 F.3d at 797.
The evidence before the court shows that Plaintiff is an
African-American woman and therefore a member of a protected
class, and she may have been qualified for the management
assistant position for which the District did not select her to
fill. No evidence has been presented that the position remained
open after Plaintiff was rejected and that the District continued
to search for a candidate of Plaintiff's skills. The lack of
such evidence does not however preclude Plaintiff from
establishing a prima facie case of discrimination. In Bray v.
Marriott Hotels, 110 F.3d 986 (3d Cir. 1997), the Court of
Appeals held that the fact that a position did not remain open
after a candidate was rejected was not enough to preclude a
finding that a prima facie case had been established. The Court
of Appeals stated, "[h]ere, the position did not remain open
after Bray was rejected. Rather, the position was filled when
Riehle was chosen over Bray. However, this variance from the
letter of the McDonnell Douglas Corp. formula is not relevant
to our analysis. The facts necessarily will vary in Title VII
cases, and the specification . . . of the prima facie proof required . . . is
not necessarily applicable in every respect to different factual
situations." Id. at 990 n. 5 (internal quotations omitted),
quoting McDonnell Douglas Corp. v. Green, 411 U.S. at 802 n.
13. Based on the evidence submitted, the court will proceed as
though Plaintiff has established a prima facie case of
discrimination for failure to promote.
Once a Plaintiff establishes a prima facie case, the burden
shifts to the Defendant to articulate a legitimate,
nondiscriminatory reason for its action. Tzannetakis v. Seton
Hall Univ., 344 F.Supp. 2d 438 (D.N.J. 2004). The burden of
offering a legitimate reason for an employment action is light.
In this case, to meet her burden, Plaintiff contends that Perez
should not have been chosen over her for two reasons. First,
Plaintiff ranked first and Perez ranked twelfth on the open
competitive list. (Jenkins Cert., Ex. C). Second, Plaintiff
contends that Perez was less qualified than she was because Perez
did not meet the educational requirements for the management
assistant position. Specifically, Plaintiff contends that Perez
was appointed to the position even though she did not have a
bachelor's degree, which Plaintiff asserts was a prerequisite for
appointment to the position.
There is no evidence to support Plaintiff's first contention
that Perez should not have been chosen over Plaintiff because
Plaintiff ranked above Perez on the open competitive list.
Assuming Plaintiff can make out a prima facie case of
discrimination, the District presents evidence that demonstrates
that it had no lawful alternative but to follow state civil
service laws when selecting Perez for the management assistant
position. Plaintiff argues that her fitness for the position was
exhibited by her superior performance on the open competitive
civil service examination for management assistant. Plaintiff, along with two
other persons, ranked first on the list with a score of 99.999.
Although Plaintiff may have been qualified based on her score,
the District selected Perez to fill the position, a person who
ranked twelfth on the list with a score of 96.250. Perez,
however, was also ranked on the promotional list.
The District contends that Perez was a more qualified candidate
because she was on the promotional list, a list that Plaintiff
was not on. Pursuant to N.J.A.C. 4A:4-3.7(a),*fn8 an
interested candidate on the promotional list is entitled to the
position before any candidate on the open competitive list can be
considered, and when the two lists exist, the promotional list
takes precedence for future appointments until the list is
exhausted. Plaintiff herself has acknowledged the existence of
this regulation and in her deposition, Plaintiff clearly
articulated the relative priority given to the two different
lists. (Plaintiff's Dep. 97:24-98:5).
There is also no evidence to support Plaintiff's second
contention that a bachelor's degree was required for appointment
to the position. The applicable section of the job specification
sheet for the management assistant position reads: REQUIREMENTS
Graduation from an accredited college or university
with a Bachelor's degree.
NOTE: Applicants who do not possess the required
education may substitute experience as indicated on a
(Jenkins Cert., Ex. F).
A simple examination of the specification sheet reveals that a
candidate's experience may be substituted for a bachelor's
degree. Furthermore, Perez had been working in the District for
more than a year, which may have helped fulfill the educational
requirements set forth above. Plaintiff cannot support her
argument that Perez was not qualified for the position because
she did not have a bachelor's degree.
The District, a public sector employer, is required to follow
the civil service laws as prescribed in Title 4A of the New
Jersey Administrative Code and it has met its burden by providing
ample evidence that pursuant to the civil service laws, it had a
legitimate, non-discriminatory reason for not promoting Plaintiff
to the management assistant position in the budget office.
If a defendant satisfies its burden of offering a legitimate
reason for an employment action, the burden shifts back to the
plaintiff to show that the defendant's proffered reason or
reasons are a pretext for discrimination. Tzannetakis v. Seton
Hall Univ., 344 F.Supp.2d. The burden plaintiff bears of showing
pretext is a heavy one. A plaintiff can show pretext by "pointing
to some evidence, direct or circumstantial, from which a fact
finder could reasonably either (1) disbelieve the [defendant's]
articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or determinative
cause of the" defendant's action." Id. at 444. Plaintiff must
show, "such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the [defendant's] proffered
legitimate reasons for its action that a reasonable fact finder
could rationally find them `unworthy of credence'". Id.;
Silvestre v. Bell Atl. Corp., 973 F.Supp. 475, 483.
Here, Plaintiff has not shown that the District's proffered
reason or reasons for not hiring her is a pretext for
discrimination. Plaintiff offers no specific examples to meet her
burden of proof; rather, she offers numerous unsupported
allegations and assumptions that could not support a reasonable
jury's finding that the District failed to promote her because of
her race or color.
Plaintiff alleges that Perez was selected for the position
instead of Plaintiff because, inter alia, Plaintiff is
African-American and Perez is Hispanic, Perez's parents held
positions of power in the District and were able to influence the
hiring process in favor of their daughter and influential
Hispanic employees affected the selection process resulting in
the District's choice of a less qualified, Hispanic candidate.
Plaintiff supports these contentions with alleged statements made
by Tamara Roberts, who was at the time of the employment action a
member of the District's Human Resources Department. Roberts told
Plaintiff that Plaintiff did not receive the position on account
of her race. (Jenkins Cert., Ex. H). The court notes that
Plaintiff submits no affidavit from Roberts nor any deposition
testimony from Roberts to support her claim. However, assuming
arguendo that Roberts made such a statement to Plaintiff, it
could not be considered more than mere speculation because it was
not made by or on behalf of the District. The Court of Appeals
has held that "stray remarks by non-decisionmakers alone are
insufficient to establish discriminatory intent". Potence v. Hazleton Area Sch. Dist.,
357 F3d 366, 371 (3d Cir. 2004). In this case, it has not been
shown or alleged that Roberts had any role in the District's
The only support Plaintiff provides to back her claims, her own
opinion regarding Perez's selection (Pl. Dep. 96:10) and the
alleged statement made by Roberts that Plaintiff didn't get the
position because Perez's Hispanic "and [Hispanics] run things
around here" (Jenkins Cert., Ex. J, Pl. Dep. 108:4-7), is not
enough to show pretext. During her deposition, Plaintiff stated
her belief that Perez was selected solely because she was
A . . . the facts show that Newark favored a Hispanic
person because when they saw [Perez] was number
twelve and not reachable, they created a promotional
to see if they could pull her from that list.
Q On what basis do you support these beliefs that you
have, what factual information do you have that this
A They were all right in front of us. All the Civil
Service exams, the dates on the exams.
Q What factual information do you have in terms of
the motives that you're attributing to the State and
A I'm basing them upon the facts that are on the
documents from the Civil Service, from Trenton.
Q Right, and what facts other than those lists?
A Just common sense. (Jenkins Cert., Ex. J, Pl. Dep.
Plaintiff has offered no objective evidence that could
discredit the District's reasoning or show that its reason was a pretext for discrimination. The
evidence demonstrates that Perez held the management assistant
position in the District on a provisional basis since January 21,
2002. The provisional appointment was approved by the DOP.
(Adam's Cert, Ex. 7). The DOP later confirmed that Perez was
entitled to and properly received the position because she was on
the promotional list. The evidence also shows that Plaintiff was
not on the separate promotional list from which the candidate had
to be chosen. See N.J.A.C. 4A:4-3.7.
Plaintiff contends that the District is wrong because the DOP
told her that she should have been appointed to the position. To
support her contention Plaintiff relies on a statement made by
Stutesman, during a conversation, that the District was at fault
in this case and that Plaintiff should have been appointed to the
position. It must be noted that assuming Stutesman made such a
statement, she did not have all the relevant or applicable
information regarding Plaintiff's complaint when she made the
statement. The conversation Plaintiff had with Stutesman occurred
before the DOP had the opportunity to conduct an investigation
and therefore, all relevant facts could not have been considered
at the time of the conversation. Plaintiff was not even able to
provide Stutesman with all the relevant details during their
conversation because she was unaware of the existence of the
Q Did you at any point during that conversation
discuss the fact that there was a promotional list
for that position [management assistant]?
A At that time I did not know there was a promotional
list for that position.
Q So, during your conversation and based upon the
facts that you gave to her, you're indicating Ms.
Stutesman said there was a violation? A Yes. (Jenkins Cert., Ex. J, Pl. Dep. 91:12-20).
Notwithstanding Plaintiff's conversation with Stutesman, the
District is correct that such a conversation would not call into
question the validity of the DOP's ultimate conclusion that the
District adhered to civil service laws regarding the priority of
the lists when it appointed Perez. Plaintiff is knowledgeable of
the fact that the DOP, not the District, is responsible for the
creation and maintenance of the lists:
Q Your understanding is that the State is the one who
prepares these lists. Correct?
Q And only the State can add or subtract from the
A Yes. (Adams Cert, Ex. 10, Pl. Dep. 96:23-97:3).
In an April 16, 2003 letter addressed to Plaintiff from
Stutesman, the DOP confirmed its findings that the District had a
legitimate, non-discriminatory reason for its employment decision
concerning Plaintiff. The letter was sent after Plaintiff's
verbal interaction with Stutesman and in response to Plaintiff's
February 25, 2003 written inquiry and request for investigation;
and it explains the protocol and procedures that the District was
required to follow when hiring for the management assistant
position. Stutesman's letter specifically addresses Plaintiff's
concern about Perez's appointment:
The Appointing Authority had the choice to fill the
open competitive vacancy with any of the individuals
ranked #1 . . . [Perez] was appointed provisionally
to the title Management Assistant pending promotion
procedures on 1/12/2002. Ms. Perez was eligible for
promotion to this title since she held at least 1
year of continuous permanent (RA) status prior to the
announced closing date for filing applications.
Since Ms. Perez was serving pending promotional
procedures, the Newark School District can not use
the open competitive list to fill a promotional
vacancy. Pursuant to NJAC 4A:4-3.7(a), when both a
promotional and open competitive list exist, the
promotional list will take precedence for future
appointments until it is exhausted. Therefore, there
has been no violation of Civil service rules
regarding Ms. Perez's provisional appointment.
(Adams Cert., Ex. 7; Ex. 8).
Although Plaintiff takes issue with the fact that Perez appears
to only have been permanently appointed on or about September 12,
2003 and Plaintiff's complaint regarding Perez's appointment to
the position was filed approximately seven months earlier in
February 2003, Stutesman's letter specifically references the
fact that Perez was serving "pending promotion procedures". Any
delay in Perez's appointment does not dispute the fact that Perez
was on the promotional list, Plaintiff was not on the promotional
list and that the promotional list had to be exhausted before any
candidate from the open competitive list was considered. For
reasons unknown to this court, Plaintiff speculates about the
validity of the explanations set forth in Stutesman's April 16,
Q I said that [sic] letter indicated that Ms. Perez
was properly placed in that position, and, in fact,
had a right to that position over you. Correct?
A It indicated that, but that was not the truth
behind the letter.
* * *
Q Why do you think that all this information is
A Like I said, the letter dated April 16 which is D-8
that is Stutesman states that Newark acted
justifiably by appointing Ms. Perez. Which at the time she wrote this letter Ms. Perez was rejected
from the promotional list. How could she possibly
write something justifying actions of Newark when
this person was not on the list? She was rejected.
I don't understand how she or the State came to this
conclusion when she wasn't on the promotional list at
all. She was rejected at that point.
She was added to the list subsequently, a month after
this letter was written to me. (Adams Cert., Ex. 10,
Pl. Dep. 97:11-16; 98:8-20).
Plaintiff complains that Perez's placement on the promotional
list is problematic and the notation by Perez's name, "Retro
5-1-03", is indicative of intentional wrongdoing on the
District's part. The court again notes that the DOP compiles the
lists of eligible candidates, has control over such promotional
lists and second, it is likely that Perez's name was added to the
list after a successful appeal. See N.J.S.A. 11A:4-4. It does
not seem odd that Perez's name was added to the list; in fact
after the DOP promotional list was published, Perez's name was
not the only name added to the list with a retroactive date.
(Jenkins Cert., Ex. G). More importantly, questions about the
DOP's procedures with respect to the maintenance of the lists is
of no relevance in the instant matter in which Plaintiff is suing
With respect to Perez being added to the list, Plaintiff is
aware that Perez filed an appeal after she was not initially
placed on the promotional list. Such knowledge is evident from
her deposition testimony: A Okay. I looked, I went down and I received [sic]
promotional list of eligibles. Her name was not on it
until it was added a month after this letter was
Q Was added by whom?
A The merit board. When Ms. Perez first applied for
the promotion, this exam, she was rejected because
she did not have enough qualifications. So, she
appealed it and she went back and added additional
information in to make it better for herself, and
then she was added onto the list. (Adams Cert., Ex.
10, Pl. Dep. 93:12-23).
Plaintiff's statements regarding the truthfulness of the DOP's
letter and the reasons for Perez's appointment constitute mere
speculation. However, unsupported allegations will not permit a
party to survive a motion for summary judgment. Port Authority
of New York and New Jersey v. Affiliated FM Ins. Co.,
311 F.3d 226
, 233 (3d Cir. 2002).
There is no evidence contained in the record that the District
was at fault for relying on the promotional list provided by the
DOP. Quite the contrary is true, as the evidence shows that the
District acted reasonably and lawfully in relying on the civil
service lists issued by the DOP. The District effectively refutes
Plaintiff's accusation that she was passed over for promotion
under circumstances that give rise to an inference of
discrimination because nothing in the record suggests that
discriminatory animus played a role in the District's employment
decision regarding Plaintiff. Adherence to state civil service
laws constitutes a legitimate, nondiscriminatory reason for
adverse employment actions. Plaintiff has provided no probative
evidence that could reasonably discredit the District's
articulated, legitimate reasons and thereby suggest that the
legitimate, nondiscriminatory reasons are pretexts to mask
unlawful discrimination. III. Conclusion
Plaintiff has failed to meet her burden to support a Title VII
claim for failure to promote on the basis of race or color. No
reasonable jury could find otherwise. For the reasons set forth
above, the District's motion for summary judgment is granted.