John v. Bridgeport et al
Filing
159
ORDER denying 151 Motion for Summary Judgment. Please see attached Ruling & Order for details. Signed by Judge Robert N. Chatigny on 4/4/18. (Jones, P.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BARBARA JOHN,
:
:
Plaintiff,
:
:
v.
:
:
BRIDGEPORT BOARD OF EDUCATION,:
:
Defendant.
:
Case No. 3:14-cv-1484 (RNC)
RULING AND ORDER
Plaintiff Barbara John, an African-American female, claims
that the Bridgeport Board of Education (“BBOE” or “the Board”),
the only remaining defendant in this action, failed to promote
her to the position of Director of Athletics, Health and Physical
Education (“the Director” or “the position”) because of her race
and sex in violation of Title VII, 42 U.S.C. § 2000 et seq.
The
Board has moved for summary judgment and an award of attorney’s
fees.
Because plaintiff has presented sufficient evidence from
which a reasonable factfinder could conclude that her race and
gender were motivating factors in the Board’s decision, the
Board’s motions are denied.
I. Background
The following facts are undisputed or, if disputed, are
supported by the summary judgment record viewed in a light most
favorable to the plaintiff.1
1
In 2012, the Board posted a job
Plaintiff has filed a “Local Rule 56(A)1, Statement of
Undisputed Facts” (ECF No. 156-4). The statement fails to comply
with Local Rule 56, which requires parties opposing a motion for
summary judgment to file a Local Rule 56(a)2 Statement of Facts
opening for the position of Director.
The advertisement listed
the following “requirements”: master’s degree in health, physical
education or a “related field”; successful experience as an
athletic coach; five years of experience teaching health and/or
physical education; Connecticut certifications in immediate
supervision, health, physical education, and coaching; and the
ability to effectively implement and manage budgets and
personnel.
Plaintiff applied for the position as did James
Denton and Neil Kavey, both white males.
interviewed for the position.
All three were
Kavey was ultimately selected.
At the time the candidates applied, all three were current
BBOE employees.
Denton was the acting Director.
Plaintiff had
worked for BBOE for forty-two years as a health and physical
education teacher.
She had a master’s degree in physical
education and many years of coaching experience beginning in the
late 1970s and continuing through 2012.
She had all the required
in Opposition to Summary Judgment, including “a reproduction of
each numbered paragraph in the moving party’s Local Rule 56(a)1
Statement followed by a response to each paragraph admitting or
denying the fact and or objecting to the fact.” D. Conn. L. Civ.
R. 56(2)(i). The factual assertions in the defendant’s Rule
56(a)1 Statement may therefore be deemed admitted. See id. at
56(1); see also Amnesty America v. Town of West Hartford, 288
F.3d 467, 470 (2d Cir. 2002) (“Fed. R. Civ. P. 56 does not impose
an obligation on a district court to perform an independent
review of the record to find proof of a factual dispute.”).
However, plaintiff has vigorously disputed certain facts and the
parties have had ample opportunity to develop a record regarding
those disputed factual issues. In these circumstances, the
interest in resolving issues on the merits is better served by
examining the record in a light most favorable to the plaintiff
to determine whether she has raised a triable issue rather than
treating the defendant’s assertions as if they had been admitted.
certifications except for health, and also had certifications in
first aid and swimming.
seven years.
Kavey had worked for BBOE for twenty-
He was a physical education teacher from 1986 to
1994 and a school counselor from 1994 to 2012.
He had a
bachelor’s degree in physical education and a master’s degree in
school counseling.
He had the required certifications except for
health and coaching.2
Kavey’s resume stated that he had coached
high school and college sports teams from 1976 to 1986.3
The candidates were interviewed by Chief Administrative
Officer Dr. Sandra Kase and Deputy Chief Academic Officer Teresa
Carroll.4
According to the Board, the interviewers asked a
series of pre-determined questions, including the following:
“With district budgets becoming more and more constrained, how
would you manage your resources to provide equity and access to
2
Kavey later obtained a coaching certificate after the
Connecticut Department of Education made it mandatory for all
athletic directors in 2013. The parties dispute whether Kavey
was certified in physical education in 2012. However, the record
establishes that he was certified at that time. See Def.’s 2nd
Reply (ECF No. 135).
3
Plaintiff disputes whether Kavey actually had coaching
experience on the ground that the schools listed on his resume
have no records verifying his employment. The Board responds
that the schools were not required to keep records. In addition,
it points to a newspaper article from 1981 that includes a
picture of Kavey and references two of his coaching positions.
4
Dr. Kase began working for BBOE earlier in 2012. See
Kase’s Depo., at 10 (ECF No. 157-3). Carroll worked in various
positions for BBOE starting in the early 1990s. She was
Assistant Superintendent from 2006 to 2012, when she became
Deputy Chief Academic Officer. See Carroll’s Depo., at 8-9 (ECF
No. 87-3).
sports for all students.”
After the interviews, Kase recommended
Kavey to Superintendent Paul Vallas.5
Vallas met with Kavey and,
based on Kase’s recommendation, offered him the position.
Vallas
was not aware that plaintiff had applied for the position.
The
Board approved Vallas’s decision.
Because Vallas relied on Kase’s recommendation of Kavey, and
was unaware of plaintiff’s application, Kase served as the de
facto decisionmaker.6
This case was filed in October 2014.
Neither party obtained a statement from Kase until January 2018.
At her deposition, Kase testified that Kavey impressed her with
“his vision, and his ideas for conducting or for implementing
District-wide Physical Education Program in the context of
limited resources.”
She said that plaintiff did not exhibit “the
same level of -- of either vision or suggestions for implementing
a District-wide Physical Education and Health Program.”
She also
testified that Denton had failed to demonstrate he was able to
manage district resources during his tenure as acting Director.
Prior to Kase’s deposition, the Board cited only Carroll’s
deposition testimony in support of its decision to hire Kavey
5
6
Vallas was appointed Interim Superintendent in 2011.
See Bickerstaff v. Vassar Coll., 196 F.3d 435, 450 (2d
Cir. 1999) (“We recognize that the impermissible bias of a single
individual at any stage of the promoting process may taint the
ultimate employment decision in violation of Title VII. . . .
This is true even absent evidence of illegitimate bias on the
part of the ultimate decision maker, so long as the individual
shown to have the impermissible bias played a meaningful role in
the promotion process.” (citation omitted)).
over plaintiff.
Carroll testified that she gave a three out of
five rating to plaintiff and Denton, and a four out of five
rating to Kavey, citing his “leadership voice.”
Plaintiff contends that Kase’s decision to recommend Kavey
was motivated by discrimination based on race and gender.
Plaintiff testified at her deposition that she was not aware of
any racially or sexually derogatory comments made by BBOE
administrators or board members, including Kase.
However, she
had more seniority than Kavey and, in her view, was objectively
better qualified for the position of Director, and therefore
should have gotten the promotion under the contract between BBOE
and the teachers’ union.
At the time, the contract stated:
“[V]acanc[ies] shall be filled on the basis of fitness for the
vacant post, provided, however that where two or more applicants
are substantially equal in fitness, the applicant with the
greatest amount of seniority in the Bridgeport School System
shall be given preference.”7
Responding to Kase’s deposition
testimony, plaintiff states that the interviewers never asked her
about managing resources and, had they asked, she would have
explained that she had several relevant experiences managing
budgets.8
7
Plaintiff has stated that she did not file a grievance
with the union related to the Director position because she did
not trust the union.
8
In response to an earlier motion for summary judgment
filed by BBOE, plaintiff included the list of interview
questions. See Pl.’s 1st Resp., Ex. 3 (ECF No. 98-6). Prior to
Plaintiff has also testified that she began applying for
administrative positions in 2006 and was rejected each time in
favor of a white male.
In 2009, plaintiff brought suit against
BBOE for failing to promote her to the position of Director
claiming discrimination on the basis of age, race, and sex.
See
John v. Bridgeport, 09-cv-378(VLB), 2011 WL 1106708 (D. Conn.
Mar. 22, 2011).
The case was dismissed on summary judgment.
The
present suit arises from BBOE’s failure to promote her to the
position in 2012.9
II. Legal Standard
Summary judgment may be granted when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.
317, 322 (1986).
Celotex Corp. v. Catrett, 477 U.S.
To avoid summary judgment, the non-moving party
must point to evidence that would permit a jury to return a
verdict in his or her favor.
477 U.S. 242, 252 (1986).
Anderson v. Liberty Lobby, Inc.,
In determining whether the moving
party is entitled to judgment as a matter of law, a court must
review all the evidence in the record.
In doing so, however, the
court must view the evidence in the light most favorable to the
opposing party.
Id. at 255.
Under this standard, all evidence
Kase’s deposition in January 2018, however, neither party drew
attention to the questions asked during the interviews.
9
The 2009 suit involved the position of Director of
Physical Education and Athletics. In 2012, the Board added a
Health component but many of the duties and responsibilities of
the position remained the same.
supporting the position of the opposing party must be credited,
with any ambiguities resolved and all reasonable inferences drawn
in favor of that party.
Importantly, although it is necessary to
review the record as a whole, evidence supporting the position of
the moving party must be disregarded unless a jury would have to
credit the evidence because it comes from a disinterested source
and is uncontradicted and unimpeached.
See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150-51 (2000) (quoting 9A
C. Wright & A. Miller, Federal Practice & Procedure § 2529, at
300 (2d ed. 1995)).
It is essential that care be taken in
applying this standard in order to preserve and protect the
Seventh Amendment right to trial by jury, which is undermined by
excessive use of summary judgment.
See A. Miller, The Pretrial
Rush To Judgment: Are The Litigation Explosion,” “Liability
Crisis,” And Efficiency Cliches Eroding Our Day In Court And Jury
Trial Commitments?, 78 N.Y.U. L. Rev. 982 (2003).
III. Discussion
Title VII discrimination claims are analyzed under the
burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
First, the plaintiff must meet the
“minimal” burden of establishing a prima facie case by showing:
“(1) that [she] falls within the protected group, (2) that [she]
applied for a position for which [s]he was qualified, (3) that
[she] was subject to an adverse employment decision and (4) that
the adverse employment decision was made under circumstances
giving rise to an inference of unlawful discrimination.”
Byrnie
v. Town of Cromwell, Bd. Of Educ., 243 F.3d 93, 101 (2d Cir.
2001) (citing McDonnell Douglas, 411 U.S. at 802).
If the
plaintiff establishes a prima facie case, the burden shifts to
the defendant to articulate a “legitimate, non-discriminatory
reason for the employment decision.”
Id. at 102.
If the
defendant meets this burden, the burden shifts back to the
plaintiff to “show that the proffered reason was pretextual and
that, more likely than not, the true reason was the illegal
discrimination that the plaintiff alleged.”
F.3d 652, 654 (2d Cir. 1997).
Scaria v. Rubin, 117
“At summary judgment in an
employment discrimination case, a court should examine the record
as a whole, just as a jury would, to determine whether a jury
could reasonably find an invidious discriminatory purpose on the
part of an employer.”
Byrnie, 243 F.3d at 102. To meet her
ultimate burden, plaintiff need only show that “an improper
consideration was ‘a motivating factor’ for [the] adverse
employment decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 174 (2009) (quoting 42 U.S.C. § 2000e–2(m)).
BBOE contends that plaintiff has failed to meet her initial
burden of presenting a prima facie case.10
It is well-
established, however, that when the position in question is given
10
BBOE does not dispute that plaintiff was qualified for
the position. Though plaintiff did not meet all the requirements
listed in the job posting, neither did Kavey, and both were
interviewed for the position.
to someone outside the protected class, that fact alone is
sufficient to give rise to an inference of discrimination at the
prima facie stage.
See Zimmermann v. Assocs. First Capital
Corp., 251 F.3d 376, 381 (2d Cir. 2001).
Thus, plaintiff has met
her initial burden.
BBOE has offered a legitimate, nondiscriminatory reason for
the challenged action: Kase thought Kavey performed better than
plaintiff during the interviews.11
At Kase’s deposition, she
cited the interviews as the dispositive factor in her decision to
recommend Kavey.
Carroll’s contemporaneous notes also point to
Kavey’s superior performance in the interview.
Thus, the burden
shifts back to the plaintiff to produce evidence permitting an
inference that the proffered reason is pretextual.
The pretext inquiry involves examining the “strength of the
plaintiff's prima facie case, the probative value of the proof
that the employer's explanation is false, and any other evidence
that supports the employer's case.”
Reeves, 530 U.S. at 148–49.
In some cases, “a plaintiff's prima facie case, combined with
sufficient evidence to find that the employer's asserted
justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated.” Id. at 148.
11
When,
See Byrnie, 243 F.3d at 102 (defendant’s statement that
person hired “performed better than [plaintiff] during the
candidate interviews and thus seemed, based on subjective
criteria, the better qualified candidate” is legitimate,
nondiscriminatory reason).
as here, the plaintiff offers evidence rebutting the defendant’s
proffered reason but has not offered direct evidence of
discrimination,12 the question is whether a “trier of fact
c[ould] reasonably infer from the falsity of the explanation that
[Kase] is dissembling to cover up a discriminatory purpose.”
Id.
I find that a combination of factors permits this inference here.
First, on paper, plaintiff appears to be a better fit for
the Director position.
She had worked continuously as a physical
education teacher, health teacher and coach for over forty years;
Kavey stopped coaching in the mid-1980s, had not taught physical
education since the mid-1990s, and had no experience teaching
health.13
The discrepancy in qualifications between plaintiff
12
Plaintiff does claim that she had been overlooked in
favor of white males for similar positions in the past, which
could show a discriminatory motive under certain circumstances.
See McDonnell Douglas, 411 U.S. at 804–05 (noting that
“petitioner's treatment of respondent during his prior term of
employment” is relevant to pretext inquiry and that “statistics
as to petitioner's employment policy and practice may be helpful
to a determination of whether petitioner's refusal to rehire
respondent in this case conformed to a general pattern of
discrimination against blacks”). But plaintiff offers few
specifics about these other positions besides the 2009 case,
which she lost on the merits. See John, 2011 WL 1106708, at *14.
Moreover, the probative value of this evidence is limited because
all the parties involved in the hiring decision in 2012 entered
their positions in 2011 or 2012; she has not established, or even
asserted, that any of them were involved in previous hiring
decisions.
13
Though I conclude that a jury could find plaintiff was
objectively better qualified for the position, her assertions
that BBOE administrators willfully failed to “investigate” Kavey
and conspired to put him in the position despite his lack of
qualifications are speculative. Her contention that Kavey was
not qualified for the position because he did not have the
and Kavey is not so great that “no reasonable person, in the
exercise of impartial judgment, could have chosen [Kavey] over
the plaintiff for the job in question,” but it does detract from
the credibility of BBOE’s proffered reason.
See Byrnie, 243 F.3d
at 104-06 (disparity in qualifications probative even if not
dispositive); see also Weiss v. JPMorgan Chase & Co., 332 F.
App’x 659, 664 (2d Cir. 2009) (stating that courts “must give
particular scrutiny to ‘subjective evaluation[s],’ because (1)
‘any defendant can respond to a discrimination charge with a
claim of some subjective preference or prerogative and, if such
assertions are accepted, prevail in virtually every case’ and (2)
a discriminatory consideration such as [race or gender] could
play into the ‘formation of subjective impressions.’” (quoting
Byrnie, 243 F.3d at 104-06)).
Second, the contract between BBOE and the teacher’s union
gave preference to the more senior candidate when two candidates
were “substantially equal in fitness.”
Plaintiff was the more
requisite certifications is belied by the fact that plaintiff
also did not have all the requisite certifications. And her
contention that Kavey’s resume was fabricated is refuted by
evidence offered by BBOE and, in any event, largely irrelevant:
even if it was fabricated, there is no reason to believe that
anyone at BBOE (where Kavey had worked for twenty-seven years)
knew or should have known that it was. See Pippin v. Town of
Vernon, 660 F. Supp. 2d 354, 366 (D. Conn. 2009) (rejecting claim
where plaintiff “proffered no evidence that at the time the
[defendant] made the decision . . . any [defendant] employee . .
. knew of the [alleged] misrepresentations or intentionally
avoided learning about them by not checking . . . references [of
the person hired] before offering him the position”).
senior candidate and, as already noted, appears on paper to be
better qualified for the position than Kavey.
evidence can be probative of pretext.
This kind of
See Norville v. Staten
Island Univ. Hosp., 196 F.3d 89, 97 (2d Cir. 1999) (deviation
from seniority-based promotion policy sufficient to support
inference of discrimination for purposes of prima facie case,
though not enough to establish pretext).14
Third, although BBOE has represented from the start of the
litigation that the hiring decision was made based on the
candidate interviews, BBOE did not proffer Kase’s stated reason
for her decision until recently.
BBOE has not shifted its
justifications to a degree that suggests a coverup, see Leibowitz
v. Cornell Univ., 584 F.3d 487, 503 n.6 (2d Cir. 2009) (cannot
infer pretext from shifting justifications where justifications
were not “identical” but all related to “alleged financial burden
of renewing plaintiff’s contract”), but the failure to provide a
“clear and specific” reason does raise concern.
14
See Byrnie, 243
Plaintiff has not shown how the seniority provision in
the union contract was interpreted and applied prior to 2012,
which is relevant to determining whether and to what extent the
Board may have deviated from established practice. Cf. DeMarco
v. Holy Cross High Sch., 4 F.3d 166, 171 (2d Cir. 1993) (stating
that “pretext inquiry . . . normally focuses upon factual
questions such as whether the asserted reason for the challenged
action comports with the defendant's policies and rules [and]
whether the rule applied to the plaintiff has been applied
uniformly” (emphasis added)). Even so, the Board’s apparent
failure to give the plaintiff the benefit of the seniority
provision provides some support for a finding of pretext.
F.3d at 105 (“[A]n ‘employer's explanation of its reasons must be
clear and specific’ in order to ‘afford the employee a full and
fair opportunity to demonstrate pretext.’” (quoting Meiri v.
Dacon, 759 F.2d 989, 996-97 (2d Cir. 1985)).
Fourth, and perhaps most important, crediting plaintiff’s
account, the interviewers did not ask her about budgeting and
managing resources, despite Kase’s statement that the issue was
critical to her decision to recommend Kavey.
Though courts may
not “second-guess an employer's hiring standards, the reasons for
its employment decision, including its alleged reliance on such
standards, are subject to scrutiny under Title VII.”
Stern v.
Trustees of Columbia Univ. in City of New York, 131 F.3d 305, 313
(2d Cir. 1997).
The failure to follow established procedures for
making hiring and firing decisions can be probative of pretext,
especially when the ultimate decision is based on subjective
evaluations.
See Medeiros v. Pratt & Whitney Power Sys., Inc.,
272 F. App’x 78, 80 (2d Cir. 2008) (decisionmaker’s failure to
follow “Employee Assessment Guidelines” prior to discharging
plaintiff supports finding of pretext).
Moreover, the
inconsistency between Kase’s and plaintiff’s versions of events
calls into question Kase’s credibility.
See id.
The combined effect of this evidence, viewed most favorably
to the plaintiff, sufficiently undermines the Board’s proffered
explanation to permit a reasonable inference that the explanation
13
is pretextual.
Because the record viewed most favorably to the
plaintiff supports a finding of pretext, summary judgment may
not be granted.
Under Second Circuit case law, “only
occasionally will a prima facie case plus pretext fall short of
the burden a plaintiff carries to reach a jury on the ultimate
question of discrimination.”
Zimmermann, 251 F.3d at 382
(quotations omitted)); see D'Cunha v. Genovese/Eckerd Corp., 479
F.3d 193, 196 (2d Cir. 2007) (prima facie case of age
discrimination plus evidence calling decisionmaker’s credibility
into question is sufficient); Byrnie, 243 F.3d at 104-06
(combination of disparity in qualifications and failure to follow
established hiring procedures is sufficient); Medeiros, 272 F.
App’x at 80 (“aggregate evidence of pretext” is sufficient);
Weiss, 332 F. App’x at 664 (jury could infer discrimination where
plaintiff appeared better qualified than his replacement,
employer offered shifting justifications for termination, and
employer failed to follow normal decisionmaking process);
Zimmermann, 251 F.3d at 383 (jury could infer discrimination from
evidence undermining employer’s stated reason of “poor
performance,” fact that plaintiff was fired along with another
woman at workplace where only three of fourteen positions were
held by women, and absence of other nondiscriminatory reason in
record).
There are cases “where, although the plaintiff has
established a prima facie case and set forth sufficient evidence
14
to reject the defendant's explanation, no rational factfinder
could conclude that the action was discriminatory.”
U.S. at 148.
Reeves, 530
But this is not a case where the “plaintiff [has]
created only a weak issue of fact as to whether the employer’s
reason [i]s untrue and there [i]s uncontroverted independent
evidence that no discrimination had occurred.”
See id.
Nor is
this a case where “the record conclusively reveal[s] some other,
nondiscriminatory reason for the employer’s decision.”
See id.
Rather, the evidence in the summary judgment record, viewed most
favorably to the plaintiff, would permit a jury to return a
verdict in her favor.
IV.
Conclusion
Accordingly, the motion for summary judgment is hereby
denied.
Because attorney’s fees are only available for
“prevailing part[ies],” 42 U.S.C. § 2000e-5(k), an award is not
appropriate.
So ordered this 4th day of April 2018.
/s/
Robert N. Chatigny
United States District Judge
15
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