JULIE A. ROBINSON, Chief District Judge.
Plaintiff Mark E. Brown brings this action against his former employer, Defendant Keystone Learning Services, alleging race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Before the Court is Defendant's Motion for Summary Judgment (Doc. 37). The motion is fully briefed and the Court is prepared to rule. For the reasons explained in detail below, the Court grants Defendant's motion for summary judgment on all claims.
Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."
Finally, summary judgment is not a "disfavored procedural shortcut;" on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."
The following material facts are uncontroverted, stipulated to, or viewed in the light most favorable to Plaintiff as the nonmoving party.
Defendant Keystone Learning Services ("Keystone") is a special education cooperative that provides services to eight school districts in Kansas, offering learning opportunities to students struggling in traditional academic settings. Keystone is a Kansas governmental entity duly authorized and existing pursuant to the Kansas Interlocal Cooperation Act.
Plaintiff Mark Brown, who is African American, applied for the following teaching positions advertised by Keystone in the summer of 2015: special education grades 7 through 12, and substitute teacher grades K through 12. Keystone sent Plaintiff a letter on September 1, 2015, stating: "This is a notification that the substitute teaching position for which you recently interviewed for has been filled. However, we will keep your application materials on file for future openings."
The position was designated as an English position working with special education students. Plaintiff's teaching license from the State of Kansas allows him to teach in the areas of learning disabilities, physical education, health, and psychology. Although he may not have been qualified to be hired for a permanent English teaching position, since he had a teaching license, he was qualified to be hired as a substitute teacher.
John Dewey Academy Principal Terri Coughlin told Plaintiff upon hire that he would be the first African-American teacher at the school, and that she was happy to have some diversity because the school had at least two African-American students. In December 2015, at least two of these African-American students left John Dewey Academy. In mid-December 2015, Coughlin told Plaintiff that Keystone had hired a permanent teacher to fill the position for which he had been a substitute, and that the school would no longer need his services after the end of the semester that month. Plaintiff was unaware of Defendant's grievance procedure that may have allowed him to challenge the termination. Instead, Defendant retained legal counsel, who sent the following letter to Defendant on December 29, 2015:
The parties' attorneys discussed Plaintiff's demand letter, and then Andy Ewing, Executive Director at Keystone, told Coughlin that he wanted to find a position for Plaintiff for the spring. Defendant eventually offered and Plaintiff accepted a contract for the remainder of the 2015-16 school year. This new contract was a "Temporary Employment Contract 2015-2016," for a "substitute teacher, an employment at-will position."
At the end of the 2015-16 school year, Coughlin offered Plaintiff a temporary position for the 2016-17 school year as a paraprofessional; she told Plaintiff that there were no teaching positions available. Principal Coughlin also asked Plaintiff if he would be interested in a position with Keystone's "Harvester program" over the summer, helping another teacher named Mr. Millner. Ewing understood the Harvester program opportunity and the paraprofessional position for 2016-17 to be one in the same, however, Coughlin understood that the Harvesters program was "its own position."
Plaintiff told Coughlin he was interested in the Harvesters program after she told him the rate of pay and the days he would be required to work. Mr. Millner emailed Plaintiff a schedule that included a start and end date. When he arrived on the first day of the program, he was sent home. By that time, Plaintiff's attorney had contacted Defendant by letter stating that Plaintiff continued to be employed by Defendant under the original 2015-16 employment contract signed in October 2015. Defendant understood from this letter that Plaintiff would not accept any position other than the substitute teaching position he held the previous year.
Plaintiff did not separately apply for any vacant employment positions with Defendant after his temporary employment contract expired in May 2016, nor did he notify Keystone's Human Resources Manager, Lushena Newman, that he was interested in a full-time position at the end of his term. In reliance on the September 1, 2015 letter he received from Newman on behalf of Keystone, Plaintiff believed that his original application for the 2015-16 substitute teacher position in the summer of 2015 sufficed for him to be considered for any regular teaching positions that became vacant for the 2016-17 school year. Newman usually held onto an application for approximately eighteen months, and contacted the applicant if they qualified for a future vacancy. But Newman testified that once an applicant is hired by Keystone, either as a permanent or substitute teacher, "their application is no longer in my pile of contact information."
Defendant advertises its vacant teaching positions online. Defendant also sends emails to current employees, notifying them of vacant positions. Plaintiff did not receive these emails in the spring and summer of 2016, most likely because he was a temporary substitute teacher who was not on the email list. He later discovered that Keystone had advertised on the Kansas teaching website for special education teachers throughout the spring of 2016.
Defendant selected and hired teachers for the 2016-17 school year from the individuals who applied and were qualified for those positions. Newman did not consider Plaintiff interested in full-time employment during the 2016-17 school year based on his 2015 application because "that's a new school year,"
During the period of his employment, Plaintiff did not complain of race discrimination or retaliation. On July 5, 2016, he dual-filed an administrative charge with the Equal Employment Opportunity Commission ("EEOC") and the Kansas Human Rights Commission ("KHRC") alleging race discrimination and retaliation against Keystone. In this charge, the date of the alleged incident is April 28, 2016 to May 16, 2016. He alleges he was denied a position for the 2016-17 school year, even though teaching positions were available. He further states that he was terminated on May 16, 2016, in retaliation "for having openly opposed acts and practices forbidden by the Kansas Act Against Discrimination."
In the Pretrial Order, Plaintiff alleges race discrimination claims under Title VII and 42 U.S.C. § 1981 based on the following discrete adverse employment actions: (1) termination of his employment in December 2015 in favor of a less favorable employment agreement in January 2016; (2) failure to hire for the 2016-17 school year; and (3) failure to hire for the Harvesters program.
At the time Defendant moved for summary judgment, failure to exhaust administrative remedies was considered a jurisdictional bar to a Title VII claim in the Tenth Circuit.
The primary distinction between treating exhaustion as jurisdictional rather than as an affirmative defense, is that as an affirmative defense it is subject to waiver and estoppel.
To exhaust administrative remedies, a plaintiff must file a charge of discrimination with either the EEOC or an authorized state agency and receive a right-to-sue letter based on that charge.
Plaintiff's administrative charge alleges race discrimination on the following basis: "On April 28, 2016, I was denied a position for the 2016-2017 school years. However, on April 22, 2016 and April 29, 2016, the Respondent posted several teaching positions for the 2016-2017 school year."
While it may be true that the facts surrounding the unexhausted claims are relevant to the exhausted claim, relevance is not the standard. Under the notice standard that applies, the Court easily finds that the only exhausted claim alleged by Plaintiff in this case is the failure to hire him for the 2016-17 school year. Nothing in the charge puts Defendant on notice that Plaintiff would allege unlawful termination in December 2015—in fact, the charge alleges he was unlawfully terminated on May 16, 2016, a claim that is tied to his failure to hire claim. Accordingly, neither the KHRC nor the employer was on notice of a need to investigate the facts surrounding his 2015 termination, or the Harvesters Program failure-to-hire allegation, and those two Title VII claims must be dismissed on the affirmative defense of failure to exhaust.
Plaintiff's disparate treatment and retaliation claims must be decided under the familiar McDonnell Douglas v. Green
To establish a claim for failure-to-hire under Title VII and § 1981, Plaintiff must show: (1) he belongs to a protected class; (2) he applied and was qualified for a job for which the employer was seeking applicants; (3) despite being qualified, the plaintiff was rejected; and (4) after his rejection, the position remained open and Defendant continued to seek applicants from persons with Plaintiff's qualifications.
Defendant does not contest that Plaintiff belongs to a protected class, but argues that Plaintiff cannot satisfy the other elements of his failure-to-hire claim. First, Defendant argues there is no evidence that Plaintiff applied for and was qualified for any 2016-17 teaching positions. Yet the parties dispute whether Plaintiff's application submitted in the summer of 2015 continued to serve as an application for subsequent openings for which he was qualified after he was hired. And the evidence, when viewed in the light most favorable to Plaintiff, supports his contention that his summer 2015 application should have caused Defendant to consider him for other teaching positions that became available for the 2016-17 school year. Keystone's October 1, 2015 letter made clear that it would keep Plaintiff's application on file and consider him for other positions that may become available. And Newman testified that she routinely held on to applications for eighteen months—the positions for which Plaintiff claims he should have been considered were posted within this window of time. Newman's testimony that Plaintiff's application was no longer considered active because of his subsequent temporary employment may be true, but this fact was not communicated to Plaintiff.
Next, Defendant argues that Plaintiff cannot demonstrate he was rejected for a teaching position during the 2016-17 school year. Defendant points to evidence that Plaintiff was offered a position as a paraprofessional during the 2016-17 school year. But Plaintiff argues that this position was for less money than a teaching position, and that he was not considered for teaching positions, despite being qualified.
Finally, Defendant argues that the positions at issue were filled with qualified applicants; they did not remain open. But this argument depends on there being a lack of evidence that Plaintiff applied for the open teaching positions. Plaintiff, however, has submitted evidence that he thought his 2015 application continued to serve as an application for open positions in 2016-17, and he did not receive the emails sent by human resources in the spring of 2016 that may have prodded him to investigate those positions before they were filled. Plaintiff has met his light burden of demonstrating a prima facie case of discrimination for failure to hire him for the 2016-17 school year.
The burden shifts to Defendant to articulate a legitimate nondiscriminatory reason for not hiring Plaintiff. Defendant maintains that it hired teachers for the 2016-17 academic year who actually applied and were qualified for the positions. Therefore, the burden shifts back to Plaintiff to demonstrate that Defendant's stated reason for its decision was a pretext for discrimination. Plaintiff can demonstrate pretext by showing "such weaknesses, implausibilities, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons."
Typically, a plaintiff attempts to demonstrate pretext in one or more of three ways:
Here, Plaintiff makes a single argument in support of his pretext showing: that Coughlin's statement to him in the spring of 2016 that no teaching positions at Keystone were available the following school year was false.
Plaintiff offers no evidence that Coughlin's statement was false at the time it was made. Of course, Coughlin was the principal of but one school with which Keystone placed its teachers. Moreover, Coughlin's cited-to deposition testimony states that there was a special education teacher position available in the 2015-16 school year; it does not support Plaintiff's assertion that "defendant advertised for at least three special education teacher positions" for the 2016-17 school year.
And even if the Court concludes that there is a genuine issue of material fact about whether Coughin's statement that there were no open teaching positions was false, that would not be sufficient to create a triable issue on pretext under the circumstances of this case. A false explanation for an employment decision will only evidence pretext "where the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose."
In the Pretrial Order, Plaintiff claims "he was retaliated against for having opposed his termination from employment in December, 2015, in violation of title VII [sic] when he was denied employment opportunities with Keystone."
Defendant argues that Plaintiff cannot meet his light burden of coming forward with evidence in support of his prima facie case of retaliation. First, Defendant argues that Plaintiff never engaged in protected activity in opposing his termination in December 2015. Plaintiff claims that his assertion in December 2015 of his right to continued employment at Keystone was sufficient protected activity, even if he did not challenge the termination on the basis of race discrimination. To show he engaged in protected activity, Plaintiff must have either "participated in a Title VII investigation or opposed Title VII violations."
Second, Defendant argues that there is no evidence of a causal connection between Defendant's alleged protected activity in December 2015, and Defendant's decision not to hire him as a teacher for the 2016-17 year. Plaintiff responds that the temporal proximity between Plaintiff challenging his December 2015 termination and Coughlin falsely telling him in the spring of 2016 that no teaching jobs were available in the following fall, is sufficient evidence of a causal connection. The Tenth Circuit has found a causal connection exists between the protected activity and the materially adverse action "where the plaintiff presents evidence of circumstances that justify an inference of retaliatory motive."
Even if Plaintiff could show that he engaged in protected activity after his December 2015 termination, the evidence he submits on causation is insufficient. Plaintiff claims that Coughlin's false assertion that there were no teaching positions available was made at the end of the 2015-16 school year, several months after his December 2015 termination. The decision not to hire him for the following year, conveyed to Plaintiff at least four months after his attorney's December 2015 letter, thus did not closely follow allegedly protected activity. Therefore, Plaintiff must come forward with more than temporal proximity as evidence of causation.
For the same reasons discussed on the discrimination claim, Plaintiff's additional pretext evidence that Coughlin falsely told him there were no vacant teaching positions for 2016-17 is unavailing. There is a lack of evidence that her representation was false, and there is a lack of evidence that it was made intentionally as a way to cover up racial animus. As such, Plaintiff is unable to meet his burden of demonstrating a prima facie case of retaliation.
Again, Defendant states that it had a nonretaliatory reason for not hiring Plaintiff—it hired teachers for the 2016-17 academic year who actually applied and were qualified for the positions. Plaintiff offers the same pretext evidence on his retaliation claim as he offered on his discrimination claim. For the same reasons described under the Court's pretext analysis on that claim, Plaintiff could not demonstrate pretext even if he met his light prima facie burden on this claim. Accordingly, summary judgment is granted.
Plaintiff asserts discrimination and retaliation claims under 42 U.S.C. § 1981, based on the same theories advanced on his Title VII claims. Section 1981 "does not provide a vehicle for remedying racial discrimination and retaliation in cases brought against state actors. Rather, § 1983 `provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor.'"
The Pretrial Order was entered in this matter on May 29, 2018, before the summary judgment deadline. It supersedes all pleadings and controls the subsequent course of the case.
Plaintiff, who bears the burden of demonstrating manifest injustice, wholly fails to address these factors, relying solely on Bolden. In Bolden, the pro se plaintiff alleged in the pretrial order race discrimination under § 1981, and First Amendment retaliation under § 1983 against his former municipal employer. The Tenth Circuit considered whether the district court erred in granting summary judgment to the defendant because the plaintiff did not plead his race discrimination claim under § 1983.
In Bolden, the plaintiff proceeded pro se and had already alleged a § 1983 claim in the pretrial order. The court found that his previously alleged § 1983 claim incorporated his § 1981 claim, and to the extent the pretrial order was not clear, he should have been granted leave to amend.
Defendant also argues that summary judgment is appropriate even if the Court grants Plaintiff leave to modify the Pretrial Order to assert his claims under § 1983. The Court agrees. First, the failure to hire claim and the retaliation claim fail for the same reasons summary judgment is granted on those claims under Title VII. Second, in addition to alleging discrimination and retaliation under the McDonnell Douglas framework, Plaintiff must establish municipal liability for § 1983 liability to attach.
Because there can be no respondeat superior under § 1983, Plaintiff must show that the discriminatory and retaliatory actions were made by the "final policymakers" for Defendant.
Plaintiff has failed to identify a genuine issue of material fact as to municipal liability for his race discrimination and retaliation claims. Plaintiff argues that Defendant has a practice of not hiring minority teachers at the John Dewey Academy. He argues further that Coughlin is the final decisionmaker for Defendant's hiring decisions at that school. But Plaintiff fails to point to any evidence of these claims. The only evidence to support Plaintiff's claim of a discriminatory hiring practice is Coughlin's testimony that Plaintiff was the first African-American teacher at John Dewey Academy that she recalled during her tenure there as principal. Plaintiff also claims that Coughlin was the decisionmaker for Defendant, pointing to the fact that he began working under the temporary contract in January 2016, despite the lack of Board approval.
Defendant denies that it had a practice of not hiring minority teachers, and denies that Coughlin was a final decisionmaker. The Court finds that Plaintiff's evidence fails to create a genuine issue of material fact as to municipal liability in this case. He has not demonstrated a widespread or well settled practice of not hiring minority teachers by Keystone. He has only submitted evidence that he was the first African-American teacher at one of the schools with which Keystone serves during a seventeen-year period. It is uncontroverted that he was not the first or only African-American teacher hired by Keystone.
Second, Plaintiff comes forward with no evidence to support his contention that Coughlin had final policymaking authority on hiring and firing decisions for Defendant. Under Kansas law, a school board has final decision-making authority for its school district. And school boards lack statutory authority to delegate hiring decisions to subordinates.
There is further evidence that Plaintiff by and through his counsel understood that Coughlin was not a final decisionmaker. On May 25, 2016, Plaintiff's attorney sent a letter to members of the Keystone Board of Directors, in addition to Coughlin, stating that Plaintiff would decline the paraprofessional position because he believed he continued to be employed under his October 2015 contract, which was subject to renewal. Similarly, Plaintiff's counsel met with the Board's counsel, not Coughlin, in December 2015, after his substitute position was terminated. After that discussion, Ewing, the Executive Director of the Board, told Coughlin to find a place for Plaintiff in the spring at John Dewey Academy. These facts strongly suggest that Defendant did not delegate authority to make hiring and firing decisions to Coughlin, the school principal, and that Plaintiff was well aware of this fact.
Because Plaintiff cannot demonstrate a genuine issue of material fact on municipal liability, summary judgment is granted in favor of Defendant on Plaintiff's § 1981 claims, to the extent he is allowed to modify the Pretrial Order and plead them as § 1983 claims.
