JOHN J. McCONNELL, JR., District Judge.
Judy B. Colman and her daughter, Hadley Colman, brought this action
Defendants moved for summary judgment. (ECF No. 22). Upon review of the parties' briefs and arguments, it is clear to the Court that its ruling on Defendants' motion is guided by the answer to the question of who should decide this dispute, a judge or a jury. "[I]n cases involving women plaintiffs where legal arguments are frequently novel and innovative, where subtle issues of credibility, inferences, and close legal questions may be involved, where issues concerning the `genuineness' or `materiality' of facts are frequently intertwined with law, a single district judge may be a less preferable decision maker than a jury. Juries are likely to be far more diverse and bring a broader range of perspectives to bear on the problem," Elizabeth M. Schneider, The Dangers of Summary Judgment: Gender and Federal Civil Litigation, 59 Rutgers L.Rev. 705, 713 (2007). See also Ganzy v. Allen Christian School, 995 F.Supp. 340, 360-61 (E.D.N.Y.1998) ("The complex history of women's rights, employment, and sexuality... as well as normal methods of determining witnesses' credibility, might lead different jurors to evaluate differently the veracity of the witnesses and the honesty of the Defendant's proffered reason for dismissal. Under such circumstances, a decision by a cross-section of the community in a jury trial is appropriate."). For that reason, a court granting summary judgment in employment discrimination cases has been termed "problematic," based on reports produced by the Eighth Circuit and the Ninth Circuit, because "summary judgment was more likely to be granted to defendants in employment discrimination
Rule 56 of the Federal Rules of Civil Procedure governs the summary judgment process. It provides,
By the terms of Rule 56, a party is entitled to summary judgment only if both conditions specified in Rule 56 are met: that "no genuine dispute [exists] as to any material fact" and that the undisputed facts demonstrate that the party is "entitled to judgment as a matter of law." See Knight v. Mills, 836 F.2d 659, 664 (1st Cir.1987) (undisputed material facts, together with inferences drawn against the movant, "must lead to one reasonable conclusion in favor of the movant" to justify summary judgment). A material fact is one that "might affect the outcome of the suit under the governing law.... Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Summary judgment is a drastic remedy
In this matter, for the reasons that follow, the Court finds that summary judgment should be GRANTED in favor of all Defendants with respect to Counts III through V, and summary judgment should be GRANTED in favor of Defendant Michael Borrosh (only) with respect to Counts I and II. Summary Judgment is DENIED as to all other Defendants with respect to Counts I and II.
In mid-February 2010, the PHS girls' lacrosse head coach Jeffrey McGuirl announced he was leaving his position. (ECF No. 25-2 at 13). Sometime before the open position was posted, however, PHS Booster member Michael Borrosh approached PHS Athletic Director Michael Lunney (A.D.Lunney) and expressed interest in the vacancy.
PHS posted the vacancy online on February 21, 2010. (Id.). The job posting listed "coaching experience" as the only qualification with no additional details of the job requirements. (Id. at 24).
Judy Colman was at the time both the head coach for the PHS girls' tennis team and a volunteer assistant coach for the PHS girls' lacrosse team, assisting former Coach McGuirl during the 2009 season, Ms. Colman applied online once the open position was posted, but she was never interviewed. During the hiring process, Coach McGuirl was never asked about her performance as assistant coach. (ECF No. 25-2 at 12).
Instead, Mr. Borrosh "was brought in for an interview and hired as the girls' varsity coach on February 25 of 2010." (ECF No. 25-3 at 23). Several days after being hired, Mr. Borrosh did submit an online application. (ECF Nos. 26-4 at 9, 25-3 at 37).
Where there is no direct evidence of discriminatory animus, the protocol for proving a disparate treatment
Whether a plaintiff has demonstrated a prima facie case is normally a jury question in the First Circuit. Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 58-59 (1st Cir.2005) (discussing jury instructions with respect to fourth step of McDonnell Douglas prima facie case analysis). The prima facie case in a failure to hire context is itself a multi-step process, consisting of four elements. First, the plaintiff must establish that she belongs to the protected group. Second, she must show that she was qualified for the employment she sought. Third, she must demonstrate she was denied employment. And fourth, she must prove that a person with equal or inferior qualifications was hired. Id. at 802, 93 S.Ct. 1817. Typically, as in this case, the first and third elements are undisputed: Judy Colman is female and she was denied the employment she sought as head coach of the girls' lacrosse team.
The issue of qualifications in steps two and four is at the heart of this part of the analysis. The question of Ms. Colman's qualifications as well as her qualifications relative to Mr. Borrosh's are vigorously contested. For the reasons that follow, the Court finds, at this juncture, that these are jury issues
Ms. Colman's credentials to coach girls' lacrosse come from a variety of sources. First, she has a Bachelor of Science in recreational leadership from Ithaca College. (ECF No. 25-11 at 3). She holds all of the certifications that PHS required to coach-a Rhode island Department of Education Coaching Certificate, a coach certification from the National Federation of State High School Associations (NFHS), and first-aid and CPR certification. (ECF No. 25-1 at 15). In addition, at the time she applied for the position at issue, she had completed all work required to receive the United States Women's Lacrosse Level 1 Coach's Certificate.
Defendants contend in absolute terms, however, that Ms. Colman was not qualified to coach girls' lacrosse, primarily because she had never played the sport herself
The paradigm that the Court looks to in reviewing Ms. Coleman's qualifications is PHS's posted job qualifications, of which "coaching experience" was the sole qualification listed. (ECF No. 25-3 at 24). A.D. Lunney testified at his deposition about various attributes and experience he looks for in a coach,
The fourth step Ms. Colman must prove to establish her prima facie case is that a person with equal or inferior qualifications was hired. Her proof is similarly aided by PHS's lack of pre-determined or objective criterion in the posted job description. Ms. Colman's and Mr. Borrosh's previous experiences and what each brings to the job of coaching are different and difficult to compare. Without any objective criteria of what "coaching experience" means, neither party can claim to have demonstrated by undisputed factual evidence that he or she has superior qualifications.
The Court has previously discussed Ms. Colman's qualifications and will now compare hers to Mr. Borrosh's experience. Mr. Borrosh had coached youth sports. (ECF No. 26-4 at 5), Like Ms. Colman, his daughters played lacrosse. He had a lengthy military career that Defendants assert as evidence of his leadership skills. Mr. Borrosh played men's lacrosse on the inter-scholastic boys' lacrosse team for two years in high school and for part of his first year at the United States Naval Academy. He also played intramural men's lacrosse in college and in some leagues after college. (Id. at 4-5).
Therefore, the Court finds that Ms. Colman has shown sufficient facts, viewed in the light most favorable to her and affording her all reasonable inferences from those facts, that she was qualified for the position and that she was at least as qualified as Mr. Borrosh. Ms. Colman must do more than create this factual issue, however, to warrant her claims going to the jury. She must also demonstrate that there is sufficient evidence for a jury to find that Defendants' purported reason for hiring Mr. Borrosh was pretextual. For if she merely presents a prima facie case, but cannot carry the burden of persuasion while jumping through the last of the McDonnell Douglas hoops, Defendants would be entitled to summary judgment.
The presentation of a prima facie case, as Ms. Colman has done, raises a presumption of discrimination and affords Defendants the opportunity to dispel it by putting forth a nondiscriminatory motivation for their actions. Soto-Feliciano v. Villa Cofresi Hotels, Inc., 779 F.3d 19, 23 (1st Cir.2015) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). Here, Defendants do not point to a competitive hiring process as a justification for hiring Mr. Borrosh. It is undisputed that while the position was posted on February 21, 2010, the job had already been informally offered to Mr. Borrosh even as applications were first being solicited. It was also undisputed that no one reviewed the applications that were ultimately submitted online.
Instead, Defendants put forth a single justification for their decision to hire Mr. Borrosh, a reason that explains, in their opinion, both the decision to eschew any competitive hiring process and to put Mr. Borrosh in the head coach position. According to Defendants, Mr. Borrosh fell into their laps just in time before the start of the season. They maintain that the lacrosse season was upon them, that the girls' team had no head coach, and that there was insufficient time to consider any other applicants. The Court finds that Defendants have, at least minimally, met their burden of production at this second phase of the burden-shifting paradigm.
Finally, using the McDonnell Douglas rubric, Ms. Colman must now show that the Defendants' justification was a mere pretext disguising a discriminatory motive. Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir.2003) ("improperly motivated by discrimination"). Ms. Colman may establish
White, 533 F.3d at 392-93.
Judged against their own evidence and assessing all material facts in the record in the light most favorable to Ms. Colman, Defendants' rationale does not support Mr. Borrosh's hiring. The girls' lacrosse season was due to commence sometime after March 11, 2010.
At this final stage of the McDonnell Douglas analysis, Ms. Colman, having the benefit of the presumption of discrimination that arose from the prima facie case, must nonetheless demonstrate, by direct or circumstantial evidence, that the adverse employment action was discriminatory because of her gender. In this case, while evidence is circumstantial — there is nothing in this record to which Ms. Colman can point that provides direct evidence of an animus toward her as a woman — there is sufficient evidence, from which inferences may be drawn, such that a jury could make the determination of gender discrimination.
Most significantly, Ms. Colman has produced records
Ray v. Ropes & Gray LLP, 799 F.3d 99, 114 (1st Cir.2015).
"Statistical evidence is permissible in the disparate treatment context to show that the employer's conduct conformed to a general pattern of discrimination," Rathbun v. AutoZone, Inc., 361 F.3d 62, 79 (1st Cir.2004). But, "statistical evidence of a company's general hiring patterns, although relevant, carries less probative weight," and "in and of itself, rarely suffices to rebut an employer's legitimate, nondiscriminatory rationale for its decision." LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 848 (1st Cir.1993) (quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 156 (1st Cir.1990)). It "may play a helpful role [ ], but only if it tends to prove the discriminatory intent of the decision makers involved." Hillstrom v. Best W. TLC Hotel, 354 F.3d 27, 32 (1st Cir.2003). Therefore, "`the central focus is Tess whether a pattern of discrimination existed and more how a particular individual was treated, and why.'" LeBlanc, 6 F.3d at 848 (alteration omitted) (quoting Cumpiano, 902 F.2d at 156).
While the numbers are small, and indeed women did not apply for fifteen of the twenty-one open positions, a review of the female candidates' resumes, along with
This history or pattern is borne out by the outcome. A review of the coaching lineup shows that of the twenty-one head coach positions in 2011-12, only five were held by women (girls' and boys' tennis, swimming, gymnastics, and cheerleading). Four girls' sports teams — soccer, cross-country, basketball, and softball — had male coaches, head and assistants alike. There was no change the following year, except that the female swimming coach appears to have been replaced by a man. (ECF No, 25-19 at 11-18). It is difficult to collate some of the hiring information by year, but the Town lists twenty-six people interviewed for coaching positions, of which one was Judy Colman and only one other was a woman (interviewed for an assistant softball coaching position). (Id. at 8-10).
Other evidence in the record could further support an allegation that there were systematic difficulties in hiring women as coaches at PHS. In 2009, four men and three women applied for the girls' soccer team head coaching job. None of the women were interviewed. Two of the female candidates each had fourteen years of coaching experience (one with playing experience from middle school through college and the other with coaching experience abroad plus experience managing coaches). A male applicant who listed neither coaching nor playing experience, but did present a career in the military that he advocated demonstrated leadership skills, was hired. (ECF No. 25-8 at 72).
In 2011, when PHS hired a girls' cross-country coach, it received two applications from men and one from a woman. The woman, who was not even interviewed, had played college athletics for four years, and had coached girls' field hockey, lacrosse, and basketball as well as had been a head coach of both girls' and boys' cross-country teams. In contrast, the man ultimately hired was a new teacher at PHS with one year or less of experience coaching track and no apparent athletic background.
Ms. Colman's evidence of gender discrimination is, in this case, circumstantial. That is not, however, uncommon in disparate treatment claims. Discriminatory treatment is often subtle. And sometimes it is sincerely perceived, but not really there. In discrimination cases to a greater extent than in other matters, judges must be particularly wary of viewing such evidence so much through their own experiential prisms that they fail to recognize conflicting factual inferences that should be resolved by juries.
Ms. Colman has set forth a prima facie case of discrimination in accordance with McDonnell Douglas. She has presented sufficient evidence in the record to rebut Defendants' articulated nondiscriminatory reasons for failing to hire her and to support her assertion that the Defendants' reason for their action was a pretext for a discriminatory purpose. This factual and legal scenario merits a jury's consideration — the collective judgment of the community as opposed to this single judge — of whether Defendants discriminated against Ms. Colman because she is a woman.
This Court denies summary judgment on Counts I and II with respect to all of the Defendants, except Michael Borrosh.
The remaining claims in the Complaint do not present the same disputed factual scenario requiring a jury's determination, and therefore summary judgment is appropriate. The Court will address them summarily below.
In Count III, Judy Colman contends that she was retaliated against by not being hired because she engaged in the protected activity of reporting an offensive
Ms. Colman's claim cannot survive a summary judgment motion because she has failed to produce a factual record of causation between her protected acts and Defendants' adverse employment action. First, with respect to the email, she reported to A.D. Lunney that she had received a sexually offensive email from what purported to be the account of a coach in another town. She does not allege that either A.D. Lunney or the Town was in any way responsible for her receiving the email. Thus, as a matter of logic, she can offer no reason as to why these Defendants would be motivated to retaliate against her because she complained of the email. Indeed, the evidence is that A.D. Lunney reported the email to the school principal who reported it to the Rhode Island Interscholastic League and offered to take further action that Ms. Colman refused, (ECF No. 26-3 at 15). Lacking any evidence that her reporting the email harmed any of the Defendants, there is no plausible causal connection to Defendants' failure to hire her.
With respect to the hiring decision in 2010, Ms. Colman's claim fails because the protected activity — filing an RICHR claim — came after the adverse employment decision. A retaliation claim cannot succeed if the event that supposedly provides the motivation for retaliation occurs before the event that supposedly constitutes the retaliation. Pomales v. Celulares Telefonica, Inc., 447 F.3d 79, 85 (1st Cir.2006). Ms. Colman filed the RICHR complaint in July of 2010 — months after Mr. Borrosh had been hired instead of her. Thus, the failure to hire her in 2010 could not have been in retaliation for the filing of the complaint some four months later.
With respect to her allegation that the failure to hire her in 2011 and 2012 was in retaliation for her July 2010 RICHR complaint, all the evidence indicates that the 2011 and 2012 decisions were based on the Town's automatic retention of existing coaches. The McDonnell Douglas construct is employed, slightly modified, in retaliation claims and even if Ms. Colman could prove a causal connection, she would fail at the final stage of the analysis: the Town's explanation for not hiring her in 2011 and 2012 was its policy of retaining incumbents. There is no evidence that this policy was a pretext for retaliatory motivation.
Summary Judgment is GRANTED to all Defendants on Count III.
Hadley Colman's claim is a third-party retaliation claim because there is a lack of identity between the person engaging in the "protected activities" (Judy Colman) and the person retaliated against (Hadley Colman).
Hadley's complaint does not sufficiently allege adverse grievances to sustain her claim. There is little in Rhode Island case law that defines "aggrieved" under RICRA but, borrowing from federal law, adverse actions in a retaliation claim must be material, and not merely "petty indignities." Ahern v. Shinseki, 629 F.3d 49, 56 (1st Cir.2010). See Croce v. State, Office of Adjutant General, 881 A.2d 75, 80 at n. 9 (R.I.2005) ("Employers (including governmental employers) sometimes make decisions that cause inconvenience or discomfort for employees, but those decisions are actionable only if plaintiff can establish that they were motivated by a discriminatory animus."). While being shuffled around in a lineup and losing playing time is not petty to an athlete, it is a normal course of events during an athletic team's season, and not every "unjust, unfair, or unpleasant" experience is actionable. Ahern, 629 F.3d at 51. Additionally, while Hadley is likely convinced that her treatment during the 2010 season diminished her attractiveness to college recruiters, as well as the likelihood of receiving an athletic scholarship, this impact is entirely speculative. She was only a sophomore at the time these activities occurred and what the future would have brought over the course of the next two years would be anyone's guess.
Moreover, Hadley's claim suffers from the same causation failure as her mother's Count III claim. A causal relationship between the protected activities and the retaliatory activity depends entirely on an inference that Mr. Borrosh's coaching decisions regarding Hadley were motivated by animus against Judy Colman and not by strategic considerations relating to the team. Hadley puts forth a sort of "ipso facto" logic, contending she was such a great player that there could be no other explanation other than a retaliatory motivation for Mr. Borrosh's unfavorable treatment of her. It may be true, but there is nothing but speculation behind it. Neither the Court nor any jury is in a position, at least not without expert testimony, to evaluate Hadley Colman's level of skill or the reasonableness of strategic decisions Mr. Borrosh made as coach. A retaliation claim requires the same McDonnell Douglas exercise as other claims of discrimination, Planadeball, 793 F.3d at 175, and, ultimately, Hadley would have to show that Defendants' claim that the coaching decisions were legitimate tactical ones was but a pretext. Defendants put forth that these decisions were grounded in a desire to give other players a chance to play, to "shake up" the team. Mr. Borrosh testified that he tried different players in different positions. (ECF No. 26-4 at 14). No one, for example, played the entire time in all games any longer. (Id. at 20). Even assuming all of Hadley's claims about her athletic prowess were true, Hadley has failed to submit evidence that would carry her burden of proving that these reasons were merely pretextual.
Summary judgment is GRANTED to all Defendants on Count IV.
In Count V, Hadley Colman claims a violation of Title IX, 20 U.S.C. § 1681, which prohibits discrimination by public secondary schools, among others, "on the basis of sex." This Court, in denying Plaintiffs leave to amend the Complaint, previously reviewed the substance of Hadley's allegation that PHS disadvantaged "female students with its discriminatory
Count V is the only count with direct federal jurisdiction, providing initial justification for removal of this action to federal court. Only Counts I and II survive the instant Order, and they are both grounded in state law. With the death of Count V, the Court is required to "reassess its jurisdiction [...] engaging in a pragmatic and case-specific evaluation of a variety of considerations that may bear on the issue." Camelio v. Am. Fed., 137 F.3d 666, 672 (1st Cir.1998).
When a case has been removed to federal court and the federal claim is disposed of before trial, it is within this Court's discretion to decide whether to keep the remaining state law claims or to remand them, 28 U.S.C.S. § 1367(c). In this case, the remaining claims do not raise issues of novel or complex state law, and they are closely related to the claim that warranted federal jurisdiction. See Rodriguez v. Doral Mtg. Corp., 57 F.3d 1168, 1175-177 (1st Cir.1995) (holding that the court may exercise supplemental jurisdiction over state-law claims when those claims arise from the same nucleus of common facts and do not raise complex or novel issues of state law). Discovery has been completed in this matter, the surviving claims are ready to go to trial, and neither judicial efficiency nor the interests of the litigants would be served by jettisoning the matter from the Court's docket. The Court will therefore retain jurisdiction of Counts I and II.
For the reasons stated herein, Defendants' Motion for Summary Judgment (ECF No. 22) is GRANTED on Counts I and II as to Defendant Michael Borrosh and DENIED as to all other Defendants. Summary judgment is GRANTED on Counts III, IV, and V.
IT IS SO ORDERED.
