Jordan v. Nassar et al
ORDER dismissing Mae Ella Jordan's Title VII action with prejudice; and, dismissing with prejudice all of the claims of Mae Ella Jordan. Signed by Judge Brian S. Miller on 4/28/2011.(dmn)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
MAE ELLA JORDAN
CASE NO. 2:10cv00065 BSM
HUGHES SCHOOL DISTRICT
This case was filed by Mae Ella Jordan against Ray Nassar as superintendent of the
Hughes School District and against the Hughes School District. To the extent that plaintiff
alleged claims against Nassar, individually, those claims were dismissed prior to the April
25, 2011, bench trial. After reviewing all of the trial exhibits and hearing plaintiff’s and
Nassar’s testimony, it is hereby found that plaintiff has failed to carry her burden of proof
and therefor her claims against defendant are dismissed with prejudice.
I. FINDINGS OF FACT
Plaintiff is a black woman who began volunteering her time with defendant sometime
in 2006. In December 2006, plaintiff became a paid substitute teacher for defendant. In that
capacity, she served as a supplemental English instructor in defendant’s computer laboratory
that serves its 7th, 8th and 9th grades. On May 27, 2008, defendant offered, and plaintiff
accepted, a contract to serve as one of defendant’s instructional assistants.
On February 26, 2009, plaintiff was notified in writing by Nassar that defendant was
experiencing declining enrollment and that defendant was overstaffed in her classification.
Nassar’s letter to plaintiff stated that he was recommending to the Hughes School Board that
it not renew her contract, which means that her services were terminated at the end of her
contract. The letter to plaintiff specifically stated that Nassar was recommending that the
school board not renew the contracts of NSLA/instructional assistants with one year or less
of experience. NSLA is the national school lunch program that provides funding to poor
school districts based on the number of students qualifying for free and reduced lunch.
Plaintiff later learned that, although she was being laid off, Carolyn Turner, a white
woman who was hired at the same time that plaintiff was hired, was not laid off. Plaintiff also
learned that, of the eight employees defendant laid off, seven were black and only one was
white. Plaintiff, believing that defendant’s decision to renew Turner’s contract while failing
to renew plaintiff’s contract was based on race, filed a charge of discrimination with the
Equal Employment Opportunity Commission and subsequently filed this lawsuit.
The key exhibits received into evidence are plaintiff’s exhibits 2, 3, and 4. Exhibit 2
is the letter from Nassar to plaintiff notifying her that her contract would not be renewed due
to defendant’s declining enrollment and because plaintiff’s position was overstaffed. It also
specifically states that “NSLA/instructional aides with 1 year or less experience” would not
be renewed. This is extremely important because the trial testimony showed that Carolyn
Turner, the white woman who was offered up as a comparator, was not a
“NSLA/instructional aide.” Turner was a special education instructional aide. Indeed, while
plaintiff was paid out of NSLA funds, which the testimony showed was declining due to
declining enrollment, Turner was paid out of special education funds, a totally different
source of funds.
Exhibit 3 lists the employees whose contracts were not renewed by defendant. It
shows that three cooks were not renewed: one with twelve years experience; one with eleven
years experience; and one with nine years experience. One library assistant, who had eleven
years experience, was not renewed. Two instructional assistants were not renewed, including
plaintiff and one person with less than one year of experience. Two principals were also not
renewed: one with 37 years experience and one with 34 years experience. The testimony was
that all of the employees appearing on exhibit 3 were black, except the principal having 37
years of experience, who was white.
Exhibit 4 lists all of defendant’s classified employees for the 2008-2009 school year.
It is important because it provides context to exhibit 3. Indeed, it shows that, although the
persons listed in exhibit 3 had varying amounts of experience, they were the most junior
people in their departments. For example, during the 2008-2009 school year, defendant
employed seven cooks. The three cooks whose contracts were not renewed, as identified in
exhibit 3, were the three cooks with the least experience. The library assistant, identified in
exhibit 3, who was not renewed was the only library assistant employed during that school
year. Defendant employed nine instructional assistants and the two who were not renewed,
along with Carolyn Turner, the white comparator, had less experience than those who were
not laid off.
II. LEGAL CONSIDERATIONS
The testimony and exhibits entered into evidence failed to establish a prima facie case.
Because plaintiff offers indirect evidence in support of her discrimination claims, the
McDonnell Douglas three-step burden-shifting analysis is applied to her claims. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell Douglas test
requires plaintiff to establish a prima facia case of discrimination. Fields v. Shelter Mut. Ins.
Co., 520 F.3d 859, 864 (8th Cir. 2008). To meet that burden, she must show that: (1) she is
a member of a protected class; (2) she was meeting her employer’s legitimate job
expectations; (3) she suffered an adverse employment action; and (4) similarly situated
employees outside the protected class were treated differently. Id.
Plaintiff has clearly met the first three prongs of the test because she is a black
woman, who was meeting her legitimate job expectations, and her employment was
terminated. The real question is whether plaintiff has shown that she and Turner, the white
instructional assistant who was not laid off, were similarly situated employees. The Eighth
Circuit Court of Appeals
has two lines of cases on the standard to determine whether employees are
similarly situated at the prima facie stage of the McDonnell Douglas test. One
line sets a low threshold, requiring only that employees are involved in or
accused of the same or similar conduct.... The other line more rigorously
requires that the employees be similarly situated in all respects.
Wimbley v. Cashion, 588 F.3d 959, 962 (internal quotations and citations omitted). In
Wimbley, the Eighth Circuit affirmed this court’s determination that the plaintiff satisfied its
prima facie case by meeting the low threshold test for showing that plaintiff and the
comparator were similarly situated. Id.
Even when the low threshold test is applied, it is still clear that plaintiff and Turner
are not similarly situated employees. This is true because plaintiff was a normal classroom
instructional assistant and Turner was a special education instructional assistant. The
testimony was that Turner’s job responsibilities were different than plaintiff’s
responsibilities. In support of this proposition, Nassar testified that, as a special education
assistant, Turner was required to change the diapers of her special education students;
something plaintiff was not required to do. Nassar also testified that defendant has a large
number of special education students and therefore Turner’s services were in greater demand
than were plaintiff’s. Finally, while plaintiff was paid from funds received from the national
school lunch program, which were declining due to declining enrollment, Turner was paid
from special education funds. There was no testimony indicating whether the district’s
special education funding was declining.
In that plaintiff fails to establish a prima facie case of discrimination, there is no need
to address the remaining McDonnell Douglas analysis.
Although it is clear that Mae Ella Jordan has suffered financial hardship due to the
loss of her job with the Hughes School District, neither the facts nor the law support her
contention that defendant failed to renew her contract because she is black. Therefore, her
Title VII action is hereby dismissed with prejudice.
Accordingly, all of the claims of Mae Ella Jordan are hereby dismissed with prejudice.
IT IS SO ORDERED this 28th day of April, 2011.
UNITED STATES DISTRICT JUDGE
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