Appeal from orders of the District Court for the Eastern District of New York (Bartels, J.). After the jury returned a verdict for plaintiff in the amount of $275,000 on his employment discrimination claim under §§ 1981 and 1983, the district court granted the defendant's motion for judgment n.o.v. The court also dismissed plaintiff's Title VII claim, and his pendent state claim for constructive discharge. Docket No. 85-7409.
Before: LUMBARD, VAN GRAAFEILAND and MESKILL, Circuit Judges.
Plaintiff David Krulik appeals from an April 11, 1985, order of the Eastern District, granting the defendant Board of Education's motion for a judgment notwithstanding the verdict ("judgment n.o.v.") disposing of Krulik's claims under 42 U.S.C. §§ 1981 and 1983. Krulik also appeals Judge Bartels's order of April 23, 1985, which denied Krulik's claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Finally, Krulik appeals Judge Bartels's dismissal after trial of Krulik's pendent state claim for constructive discharge.
Krulik argues, first, that ample evidence supported the jury's finding that the Board had intentionally discriminated against him, and therefore that Judge Bartels erred in setting aside the verdict and the jury's award of $275,000 in damages. Second, Krulik argues that, because the jury's verdict was not a "miscarriage of justice," the district court's grant of a new trial in the event that this court reverses the judgment n.o.v. was an abuse of discretion and should be reversed. Krulik also argues that, assuming the jury's finding of intentional discrimination is reinstated, the seventh amendment requires us to reverse Judge Bartels's denial of the Title VII claim. Finally, Krulik argues in the alternative that the constructive discharge claim should be remanded for a new trial, on the ground that Judge Bartels's dismissal was based on the erroneous finding that Krulik had no contractual rights in his job. Because we agree with the district court that Krulik failed to make even a minimally adequate showing of discrimination on the basis of his race or religion, we affirm the court's judgment in all respects.
Krulik, who is white and Jewish, began his career in education in 1951. For the nineteen years following, he held a variety of teaching and administrative positions in the public schools. In 1970, after Krulik had placed first in the Board's English as a Second Language ("ESL") licensing examination, he was appointed Assistant Director of the Bureau of English in charge of the ESL programs in the public schools. New York Civil Service Law §§ 51 and 61 gave the Board the discretion to choose the Assistant Director from among the three top finishers on the licensing examination. The Board originally had offered the position to Irma Fuentes, who had finished second; she had turned it down, however.
Krulik's appointment as head of ESL was opposed by a private organization of teachers and supervisors known as the Puerto Rican Educators Association ("PREA"), whose members included Nathan Quinones and Awilda Orta--the two persons who Krulik claims are principally responsible for his allegedly discriminatory treatment. In a letter to the Board dated March 3, 1970, the PREA argued that Clelia Belfrom, an Italian-American woman who was the acting Assistant Director (and third-place finisher on the licensing exam), deserved the appointment over Krulik. The letter noted that Belfrom had already served in the position for three years, and that her sensitivity and effectiveness had gained her the confidence of the Puerto Rican community. There is no suggestion in the letter, nor is there any circumstantial evidence to show, that the PREA considered Krulik unacceptable because he was white, Jewish, and/or non-Puerto Rican; indeed, Belfrom (the preferred candidate) was herself white and Italian. Further, Orta and Quinones both testified at trial that they signed the letter because they believed Krulik to be inferior on the merits, and not because of Krulik's ethnic background.
In 1973, when Krulik was serving as Assistant Director of the Bureau of English in charge of ESL, the Board created a new Center for Bilingual Education, which was to be headed by Herman LaFontaine. LaFontaine would report to the head of the Division of Educational Planning who, in turn, would report to the Chancellor. The position below LaFontaine's was that of Deputy Center Administrator, and below that were ten units, each on the same level of hierarchy. Krulik was the head of the ESL unit, which was one of the ten. In 1979, Orta replaced LaFontaine as the Administrator of the Center for Bilingual Education.
Reorganization of the Center-- In March, 1979, then-Chancellor Macchiarola elevated the Center in the Board's hierarchy, and renamed it the Office of Bilingual Education ("OBE")--a change that led to the first allegedly discriminatory event. Following its elevation, the new OBE would report directly to the Chancellor, and no longer to the Division of Educational Planning. The OBE's expanded scope, which was partially the result of court orders imposing new responsibilities for bilingual education, necessitated a reorganization of the Center's previous structure. Orta invited the entire OBE staff to attend planning meetings to develop a Comprehensive Reorganization Plan. In order to familiarize herself with the OBE staff, at the first meeting Orta asked all staff members (including secretaries and clerks) to fill out and submit a form describing their experience and background. Instead of filling out the form, Krulik attached a copy of his resume to it and returned it to Orta. Between March and July, 1979, Orta held meetings with the Unit Heads to discuss the office structure that would respond best to the needs of the children served by OBE. Krulik attended several of these meetings.
According to the Comprehensive Plan, five new centers were to be created within the OBE: Curriculum Development, Dissemination, Staff Development, Program Planning and Implementation, and Assessment and Evaluation. The new managerial structure would consist of a Director, two Deputy Directors, five Center Directors, and various Unit Directors. In the summer of 1979, Orta began to fill the Deputy Director and Center Director positions on an interim basis. Because service in an interim position lasts only during the Board's audit of the position, the application process is often informal. Accordingly, the persons selected for the interim Center Director positions in the summer of 1979 either had spoken to or written to Orta expressing their interest, or had been recruited by Orta. Krulik was not promoted from his United Head position.
Orta testified that she really didn't think that Krulik was interested in any of the new positions, because he didn't approach her over the summer of 1979. Krulik testified that he believed he had applied when he attached his resume to the form distributed in March, and that he was shocked, upon his return from summer vacation in 1979, to find that all the interim positions had been filled. He testified that, whether or not he had actually "applied" for the new positions, they should have been offered to him out of "courtesy"--and that Orta's failure to do so was discriminatory. In this regard, Krulik noted that, of the seven appointees, all but one were Hispanic, and he asserted--without offering any proof--that he was more qualified than any of them. The Board presented evidence, however, that all seven appointees were very experienced in the area of bilingual education (which was to be the OBE's main mandate), whereas Krulik's experience was primarily in ESL (a narrower area). Further, the Board demonstrated that none of Krulik's several licenses related specifically to bilingual education. Finally, the Board showed that Krulik was only one of seven United Heads who were not promoted in the new OBE, and that of these seven, five were Hispanic.
Staff Transfer-- The second allegedly discriminatory employment practice involving Krulik took place in 1980. From 1970 to 1980, Krulik had acquired a staff of eight teacher trainers and two secretaries, all of whom were employees of the Division of High Schools, a separate administrative unit of the Board of Education. After two management audits in 1979-80, one of which was conducted by Lewis Weissman (who is Jewish), the Division decided to transfer this high school ESL staff back to the Division. Both audits had concluded that, because Krulik was an OBE employee on the New York City payroll, his supervision of the federally-funded Division of High School staff members was an unauthorized use of federal funds, and created fragmented organizational structure within the ESL unit and unclear lines of authority.
When the transfer was originally announced in early 1979, Krulik requested of Nathan Quinones, then Director of the Division of High Schools, that he be allowed to transfer along with his staff. Quinones agreed. In March of 1979, however, Orta (then newly-appointed Director of OBE) convinced Quinones to delay the staff transfer until OBE had been reorganized. Krulik supported Orta in her efforts to retain the Division staff within OBE. In April, 1980, he sent Macchiarola a letter to this effect, but did not renew his request that he transfer along with the staff if they did go. Several days later, Quinones finally decided to transfer the high school ESL unit to the Division; because Krulik was an employee of OBE, he was not automatically transferred with the unit and instead remained with OBE. The Division created a new Bilingual/ESL unit from among Krulik's former staff.
Krulik claims that the failure to transfer him along with his staff was discriminatory. He testified that he had orally renewed his transfer request to Quinones late in 1979, and that Quinones had said that he was going to "put in his own person." This person turned out to be Roberto Negron, a Puerto Rican, whom Orta had suggested as interim Unit Head. Krulik claims, without specific reasons, that Negron was unqualified. The Board showed, first, that Krulik had failed to apply for the transfer formally or to obtain the necessary approvals, and that everyone assumed that he wanted to stay with the ESL unit within OBE. Indeed, after the transfer was completed, Krulik did not complain, but instead requested new staff at ESL. Further, the Board showed that Negron had a ...