Bullock v. Brandywine School District
Filing
155
OPINION re 141 Motion for Summary Judgment and 143 Motion for Summary Judgment Dismissing Defendant's Affirmative Defense. Signed by Judge Renee Marie Bumb on 8/18/2011. (nms)
NOT FOR PUBLICATION
[Dkt. Ent. 141, 143]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DEBBIE A. BULLOCK, Ed.D.,
Plaintiff,
Civil Action No.
09-00172(RMB/AMD)
v.
BRANDYWINE SCHOOL DISTRICT,
OPINION
Defendant.
Appearances:
Gary W. Aber, Esquire
Aber, Baker & Over
704 King Street, Suite 600
P.O. Box 1675
Wilmington, DE 19899
Attorneys for Plaintiff
Marc S. Casarino, Esquire
White & Williams
824 Market Street, Suite 902
P.O. Box 709
Wilmington, DE 19899-0709
Attorneys for Defendants
BUMB, UNITED STATES DISTRICT JUDGE1:
I. Introduction
Plaintiff Debbie A. Bullock, Ed.D., a woman of African
American descent, has sued her former employer Defendant
1
The Honorable Renee Marie Bumb, United States Judge for the
District of New Jersey, sits in the District of Delaware by
designation.
1
Brandywine School District (“the District”), alleging unlawful
discrimination on the basis of race and gender and unlawful
retaliation in violation of Title VII, 42 U.S.C. § 2000e, et
seq., and 42 U.S.C. § 1981.
The District hired Dr. Bullock as
the Director of Human Resources, effective August 16, 2004.
In
November 2007, the District placed Dr. Bullock on a Performance
Improvement Plan (“PIP”).
One month later, Dr. Bullock presented
the Brandywine School Board (“the Board”) with a complaint
reporting allegations of discrimination.
Shortly thereafter, the
Board placed Dr. Bullock on paid administrative leave and later
issued Bullock a notice of contract non-renewal.
On January 22, 2008, Dr. Bullock filed a charge of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”), alleging violations of Title VII.
After conducting an
investigation, the EEOC concluded that the timing of Dr.
Bullock’s non-renewal notice was suggestive of retaliation, but
found insufficient evidence to sustain a disparate treatment
claim.
On March 13, 2009, Dr. Bullock filed the instant Complaint.
The District now moves for summary judgment.
Dr. Bullock also
moves for summary judgment on the propriety of the District’s
mitigation of damages offense.
For the following reasons, the
District’s motion is granted, in part, and denied, in part.
Bullock’s motion is denied.
2
Dr.
II. Background
A.
Employment with the District
Dr. Bullock’s employment was governed by a series of
one-year contracts.
At the time of her hire, she reported to the
District’s Superintendent, who presided over an executive team
that included the District’s Chief Financial Officer (“CFO”)
David Blowman and Dr. Bullock.
In August 2006,2 the District
reorganized, placing the Human Resource Department under the
supervision of the Finance Department.
As a result, Dr. Bullock
reported to Mr. Blowman, rather than the Superintendent.
Dr.
Bullock had a poor working relationship with Blowman and was
displeased by the change.
In October of that year, the District appointed a new
superintendent, James Scanlon, Ed.D.
The following month, Dr.
Bullock sent Dr. Scanlon a memorandum outlining concerns in the
Human Resources Department, specifically referencing difficulties
between the Human Resources and Finance Departments and the
change in reporting structure.
In early 2007, Dr. Scanlon issued
a survey to District personnel, which further indicated tension
between the Finance and Human Resources Departments.
On October
9, 2007, Dr. Scanlon met with Dr. Bullock to discuss the survey
2
Although Plaintiff’s Opposition Brief identifies this event
occurring in 2007, Dr. Bullock’s Complaint to the Board
identifies the change as occurring in 2006. See Def. Appx. at
A53.
3
results.
Concerned about her “people skills,” Dr. Scanlon issued
Dr. Bullock a PIP on November 6, 2007.
No PIP was issued for Mr.
Blowman.
B.
Dr. Bullock’s Complaint
On November 30, 2007, Dr. Bullock visited the home of Joseph
Brumskill, who was then President of the Brandywine School Board,
and gave him a draft complaint reporting alleged discriminatory
acts.
Mr. Brumskill suggested adding more details and advised
Dr. Bullock to file a formal complaint with the Board.
On
December 1, 2007, apparently with Dr. Bullock’s consent, Mr.
Brumskill transmitted the Complaint to Board members and Dr.
Scanlon, at the same time noting a December 31, 2007 deadline for
decisions regarding the extension or renewal of all administrator
contracts.
C.
Administrative Leave
Four days later, on December 5, 2007, Mr. Brumskill issued a
letter to Dr. Bullock, informing her that the Board had received
her complaint and had retained an attorney to investigate her
allegations.
The letter further informed Dr. Bullock that she
would be placed on paid administrative leave.
On December 17
2007, the Board voted to approve Dr. Bullock’s placement on leave
and decided not to renew Dr. Bullock’s contract.
On December 26,
2007, the District issued Dr. Bullock a notice of non-renewal.
After Dr. Bullock was placed on leave, the District
4
appointed Kim Doherty, a Caucasian woman, as acting Director of
Human Resources.
The District also reorganized the Finance and
Human Resources Departments, causing Doherty to report to Dr.
Scanlon rather than Mr. Blowman.
The District concedes that the
decision to restructure the Human Resources and Finance
Departments was due, in part, to Dr. Bullock’s complaints
concerning Mr. Blowman.
Plaintiff’s Appendix (“Pl. App.”) C129.
Dr. Bullock filed her EEOC Complaint on January 20, 2008,
alleging discrimination in violation of Title VII on the basis of
race and gender.
Two months later, outside counsel for the
District reported the results of an internal investigation, which
absolved the District and its personnel of any wrongdoing.
On
March 18, 2008, the Board wrote to Dr. Bullock, stating that it
unanimously accepted counsel’s findings and informing
Dr. Bullock that she had “the right to send a written rebuttal to
the Board to appeal the finding,” giving Bullock a March 24
deadline for any submission.
Pl. Appx. C56.
The letter further
informed Dr. Bullock that the Board would meet on March 26 “to
further discuss the implications...of [the] report.”
Id.
Dr. Bullock sent the Board a written rebuttal on March 25.
On March 28, 2008, Dr. Bullock’s attorney inquired as to the
Board’s position on permitting Dr. Bullock to return to work.
Counsel for the District replied on April 7, 2008, stating that
based on Dr. Bullock’s written rebuttal, which the Board
5
characterized as “a mean spirited personal attack on most, if not
all, of the people Dr. Bullock would work with on a day-to-day
basis as the Director of Human Resources,” the District would not
permit Dr. Bulllock to return to her former position.
Pl. Appx.
C58.
(1) the
The District did offer Dr. Bullock two options:
possibility of serving as an administrator in Human Resources on
special assignment, with the nature of the assignment subject to
the “negotiation process,” or (2) “[n]egotiate terms of other
options suggested by Dr. Bullock, which can include
severance....”.
Id.
Despite this initial offer, on April 24,
2008, counsel for the District informed Dr. Bullock’s attorney
that “[t]he Board does not believe that Dr. Bullock should be
returned to active employment” and that she would “remain on
administrative leave with pay until the cessation of her
contract...on June 30, 2008.”
D.
Pl. Appx. C60.
EEOC Determination
On August 26, 2008, the EEOC determined that the District
violated Title VII by retaliating against Dr. Bullock by
discharging her after she had complained of discrimination.
Appx. A116.
Def.
On December 16, 2008, however, the Civil Rights
Division of the Department of Justice informed Dr. Bullock that
it would not file suit on her behalf, informing her of her right
to file suit within ninety days.
See Compl. Ex. 2.
initiated this action on March 13, 2009.
6
Dr. Bullock
III. Standard
Summary judgment should be granted if "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law."
Fed.R.Civ.P. 56(a).
"An issue is
genuine only if there is a sufficient evidentiary basis on which
a reasonable jury could find for the non-moving party, and a
factual dispute is material only if it might affect the outcome
of the suit under governing law."
Kaucher v. Cty. of Bucks, 455
F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
"If the non-moving party bears the burden of persuasion at
trial, 'the moving party may meet its burden on summary judgment
by showing that the nonmoving party's evidence is insufficient to
carry that burden.’”
Id. (quoting Wetzel v. Tucker, 139 F.3d
380, 383 n.2 (3d Cir. 1998)).
Upon such a showing, the burden
shifts to the non-moving party to produce evidence of a genuine,
factual dispute.
(1986).
Celotex Corp. v. Catrett, 477 U.S. 317, 324
The non-movant's burden is rigorous:
it "must point to
concrete evidence in the record"; mere allegations, conclusions,
conjecture and speculation will not defeat summary judgment.
Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995).
When considering a summary judgment motion, the court does
not weigh evidence; rather, all reasonable "inferences, doubts,
and issues of credibility should be resolved against the moving
7
party."
Meyer v. Riegel Prod. Corp., 720 F.2d 303, 307 n.2 (3d
Cir. 1983).
However, a mere "scintilla of evidence," without
more, will not give rise to a genuine issue for trial.
477 U.S. at 252.
Anderson,
Summary judgment is appropriate "where the
record ... could not lead a rational trier of fact to find for
the nonmoving party ...."
Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
"Summary judgment motions
thus require judges to 'assess how one-sided evidence is, or what
a "fair-minded" jury could "reasonably" decide,’...."
Williams
v. Borough of West Chester, Pa., 891 F.2d 458, 460 (3d Cir. 1989)
(quoting Anderson, 477 U.S. at 265 (Brennan, J., dissenting)).
IV.
Analysis
A. Employment Discrimination
The District argues that Dr. Bullock cannot establish a
discrimination claim based on race or gender.
Under Title VII,
an employer may not “discriminate against any individual ...,
because of such individual’s race, color, religion, sex, or
national origin.”
42 U.S.C. § 2000e–2(a)(1)).
Section 1981
similarly guarantees “[a]ll persons within the jurisdiction of
the United States shall have the same right in every State and
Territory to make and enforce contracts....”
The elements of
both a Title VII and a § 1981 are the same.
Lue-Martin v. March
Group, Civ. No. 03-0105, 2008 WL 2966406, at *4 (D.V.I.
2008)(citing Schurr v. Resorts Int'l Hotel, Inc., 196 F.3d 486,
8
499 (3d Cir. 1999)), aff’d, 379 Fed.Appx. 190 (3rd Cir. 2010).
Given that Dr. Bullock attempts to prove her discrimination
claim under a pretext theory, the Court applies the McDonnell
Douglas analysis:
[u]nder th[is] familiar test, the plaintiff must first
establish a prima facie case of discrimination by showing
that: (1) s/he is a member of a protected class; (2) s/he
was qualified for the position s/he sought to attain or
retain; (3) s/he suffered an adverse employment action; and
(4) the action occurred under circumstances that could give
rise to an inference of intentional discrimination.
Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008)(citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1066 n.
5 (3d Cir. 1996) (en banc)).
If a plaintiff succeeds in
establishing a prima facie case, “then an inference of
discriminatory motive arises and the burden shifts to the
defendant to articulate a legitimate, non-discriminatory reason
for the adverse employment action.”
Id. (citing St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993)).
Upon the proffer of
defendant’s reasons for the adverse action, “the inference of
discrimination drops and the burden shifts back to the plaintiff
to show that the defendant's proffered reason is merely pretext
for intentional discrimination.”
Id.
The District concedes, for the purposes of this motion, that
Dr. Bullock meets the first two elements of the prima facie test,
but argues that she fails to establish an adverse employment
9
action under circumstances giving rise to an inference of
discrimination.
Dr. Bullock urges the Court to consider the
“tapestry” of the District’s treatment of her as evidencing
discrimination.
The Court understands Dr. Bullock to identify the following
“adverse employment actions” to support her discrimination claim:
(1) “the continuation of Dr. Bullock’s altered reporting
structure, denying her right to report to the Superintendent”;
(2) the issuance of a PIP; (3) placement on paid administrative
leave; (4) issuance of a contract non-renewal notice and (5)
refusal to return Dr. Bullock to active employment for the
remainder of her term.
Adverse employment actions have been
defined “as a ‘significant change in employment status, such as
hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a
significant change in benefits.’”
Reynolds v. Dep’t of the Army,
Civ. No. 0–3600, 2011 WL 2938101, at *2 (3d Cir. 2011)(quoting
Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998); citing
Weston v. Pennsylvania, 251 F.3d 420, 430–31 (3d Cir. 2001)); see
also Durham Life Ins. Co. v. Evans, 166 F.3d 139, 153 (3d Cir.
1999) (recognizing that although “direct economic harm is an
important indicator of a tangible adverse employment action, it
is not the sine qua non.
If an employer's act substantially
decreases an employee's earning potential and causes significant
10
disruption in his or her working conditions, a tangible adverse
employment action may be found.”).
Examples of adverse
employment actions “include ‘termination of employment, a
demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices ... unique
to a particular situation.’”
Terry v. Ashcroft, 336 F.3d 128,
138 (2d Cir. 2003)(quoting Galabya v. New York City Bd. of Educ.,
202 F.3d 636, 640 (2d Cir. 2000)).
Clearly, the District’s decisions not to renew Dr. Bullock’s
contract and not to permit her to return to active employment
constitute adverse employment actions.
See Wilkerson v. New
Media Technology Charter School Inc., 522 F.3d 315, 320 (3d Cir.
2008) (“The failure to renew an employment arrangement, whether
at-will or for a limited period of time, is an employment action,
and an employer violates Title VII if it takes an adverse
employment action for a reason prohibited by Title VII....”).
The restructuring of the Human Resources and Finance Departments
under the circumstances alleged here, however, did not constitute
an adverse action.
The record does not indicate that maintaining
the District’s change in reporting structure imposed on Dr.
Bullock a significant change in employment status.3
3
Although she
The District argues that Dr. Bullock cannot present evidence
regarding discriminatory acts occurring prior to March 28, 2007,
i.e., acts occurring 300 days prior to the filing of Dr.
11
Bullock’s EEOC complaint. See Riley v. Del. River and Bay Auth.,
457 F. Supp. 2d 505, 510 (D. Del. 2006)("A claimant bringing a
charge of discrimination under Title VII in Delaware has 300 days
from the time of the alleged discriminatory act to file a
complaint with the EEOC.”). Thus, the District argues that any
Title VII claim arising from the department restructuring would
be barred given that this event took place in August 2006.
Dr. Bullock offers two responses. First, she notes that a
four year statue of limitations applies to § 1981 claims. See
Riley, 457 F.Supp.2d at 512-13 (citing Jones v. Donnelley & Sons
Co., 541 U.S. 369, 383 (2004))(“Because plaintiffs could not
bring racial discrimination claims under Section 1981 prior to
the amendments under the Civil Rights Act of 1991, the Supreme
Court concluded that the plaintiff's racial discrimination claims
alleged violations of the amended statute and were thus subject
to a four-year statute of limitations.”). Dr. Bullock further
notes that acts which are otherwise time barred by Title VII’s
300-day filing period are nonetheless admissible as evidence to
prove discriminatory intent. See Stewart v. Rutgers, the State
Univ., 120 F.3d 426, 433 (3d Cir. 1997) United Air Lines v.
Evans, 431 U.S. 553, 558 (1977))(“A discriminatory act which is
not made the basis for a timely charge is the legal equivalent of
a discriminatory act which occurred before the statute was
passed. It may constitute relevant background evidence in a
proceeding in which the status of a current practice is at issue,
but separately considered, it is merely an unfortunate event in
history which has no present legal consequences.”).
Although it appears that Dr. Bullock could not maintain a
Title VII claim based solely on the District’s restructuring,
this issue is of little moment given this Court’s finding that
the restructuring does not constitute an adverse employment
action.
Moreover, Dr. Bullock fails to establish that the
restructuring occurred under circumstances giving rise to an
inference of discrimination. Quite the contrary. Dr. Bullock
offers no evidence by which a factfinder could find that the
alteration in report structure occurred under circumstances
giving rise to an inference of discrimination. Dr. Bullock,
herself, suggests that the change was made due to Mr. Blowman’s
employment negotiation with the District. See Compl. ¶ 10
(“During the spring/summer 2006 Blowman informed the defendant
that he was being considered or a position with Appoquinimink
School District, as a higher salary than he was earning with the
defendant, but would remain employed with the defendant if he was
promoted to Assistant Superintendent and the Director of Human
Resources would report Directly to him. Rather than appoint
12
no longer reported directly to the Superintendent, which Dr.
Bullock characterizes as a “demotion,” there is no indication
that this decision otherwise altered Dr. Bullock’s employment
title, responsibilities or benefits.
The Third Circuit has also recognized that placement on a
PIP does not constitute an adverse employment action “absent
accompanying changes to pay, benefits, or employment status.”
Reynolds, 2011 WL 2938101, at *2.
The Third Circuit explained:
...PIPs are typically comprised of directives relating to an
employee's preexisting responsibilities. In other words,
far from working a change in employment status, a PIP is a
method of conveying to an employee the ways in which that
employee can better perform the duties that he or she
already has. We note that a likely consequence of allowing
suits to proceed on the basis of a PIP would be more naked
claims of discrimination and greater frustration for
employers seeking to improve employees' performance. Thus,
because Reynolds failed to demonstrate that his PIP was
accompanied by an adverse change in the conditions of his
employment, we hold that Reynolds' placement on the PIP did
not qualify as an adverse employment action.
Id. at *3 (footnote omitted).
Dr. Bullock does not allege, and
Blowman to an Assistant Superintendent, the organizational
structure of the defendant was changed....”). Any argument that
“[m]aintaining the reporting structure...in the face of ongoing
complaints by district employees” evidences discrimination also
lacks merit. See Opp. Br. At 18. Presuming this statement to be
true, then Dr. Bullock was treated the same as other district
employees whose complaints went unheeded by the District.
Moreover, the District concedes that the structure was eventually
changed, based in part on Dr. Bullock’s complaints. Thus,
although Dr. Bullock makes much of the fact that her Caucasian
successor began reporting directly to the Superintendent,
crediting Dr. Bullock’s advice on this issue hardly gives rise to
an inference of discrimination.
13
the record does not suggest, that the PIP issued to her altered
her job responsibilities or employment benefits.
Thus, Dr.
Bullock fails to establish that the PIP constituted an adverse
employment action.4
4
Although the Court does not find the issuance of a PIP to be
an adverse employment action, the Court acknowledges that the
District apparently failed to adhere to established policies for
issuing the PIP. District policy called for a PIP to issue
within ten days of the most recent evaluation of the
administrator, and only where the administrator scored a 1 or 2
in any category evaluated. Dr. Bullock did not meet this
criteria, although the Court notes that the PIP issued promptly
after Dr. Scanlon received survey results that reflected
negatively on Dr. Bullock. Nonetheless, a failure to follow
proper procedures and policies can suggest an improper motive for
the action taken. See Stewart, 120 F.3d at 434 (quoting Village
of Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252, 267 (1977)) (“Departures from the normal procedural
sequence also might afford evidence that improper purposes are
playing a role.”).
But even assuming that Dr. Bullock could make out a prima
facie case on the basis of the PIP, she fails to establish that
the District’s reasons for issuing the PIP are pretextual. To
succeed in establishing her claim, Dr. Bullock “must point to
some evidence, direct or circumstantial, from which a factfinder
could reasonably either (1) disbelieve the employer's articulated
legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer's action.” Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir 1994).
The District maintains that the PIP issued in response to
the negative comments received about Dr. Bullock in the 2007
survey. Dr. Scanlon noted the following from his interviews with
members of both the Human Resources and Finance Departments:
one of the “common theme” of the interviews was that “[p]eople
feel stress in HR and are afraid of retaliation by Debbie
Bullock. 2 people were in tears while speaking with me,”; “15 of
the 22 people interviewed believed the tension was being caused
by the Director of HR”; and “8 of the 22 people made statements
indicating that the Director in HR has said to members in the HR
department not to speak with Finance, and/or she is going to ‘get
her department back.’” Def. App. A100. Members of the Human
Resources Department made the following statements to Dr.
14
Dr. Bullock’s placement on paid leave presents a somewhat
closer question.
Most courts who have considered the issue have
Scanlon:
“It’s a very depressing place to work and I wonder what
event will happen each day.”
“It is not encouraged to be open and honest in HR.”
“Since the change was made for the HR Director to report to
the CFO, it has been hell work in HR.”
“I e-mail the Director of HR to avoid discussion with her
because when I ask questions she rolls her eyes at me.”
“It’s been a roller coaster ride in HR and now the director
is on a binge to get her department back.”
“The director of HR is condescending and mean to people in
the department.”
We have been told by the Director of HR not to associate
with people outside of HR.”
“HR is not helpful nor user friendly.”
Id. at A101.
Dr. Bullock argues that the tension between the Human
Resources and Finance Departments was a “‘two-way’ street, with
equal responsibility all around,” i.e., that Mr. Blowman was
equally at fault. By essentially conceding that the tension did
exist, Dr. Bullock fails to discredit the reason for the PIP
proffered by the District. Moreover, Dr. Bullock cannot survive
summary judgment by showing that the District’s decision in
issuing her the PIP was wrong or mistaken, “since the factual
dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent, or
competent.” Fuentes, 32 F.3d at 765. Dr. Bullock may disagree
with the District’s failure to issue Mr. Blowman a PIP, but such
disagreement over a business judgment does not establish pretext.
Dr. Bullock fails to raise any genuine dispute as to the
District’s reasons for issuing the PIP.
15
not found paid administrative leave to constitute an adverse
employment action.
See Joseph v. Leavitt, 465 F.3d 87, 91 (2d
Cir. 2006) (agreeing with the Fourth, Fifth, Sixth and Eighth
Circuits “that an employee does not suffer a materially adverse
change in the terms and conditions of employment where the
employer merely enforces its preexisting disciplinary policies in
a reasonable manner.”); see also Killen v. Northwestern Human
Services, Inc., Civ. No. 06-4100, 2007 WL 2684541, at *4 (E.D.Pa.
2007) (“Although our Court of Appeals has not addressed this
issue, those courts of appeals that have done so have found that
placing an employee on paid administrative leave where there is
no presumption of termination is not an adverse action for
discrimination purposes.”)(footnotes omitted). Dr. Bullock argues
that the District deviated from its policy to place her on leave,
noting that Mr. Brumskill, the School Board President,
inappropriately acted by Board “consensus” when he notified
Bullock that she would be placed on leave.
Only after Dr.
Bullock was already notified did the Board vote to approve the
action.
But even assuming that Dr. Bullock’s placement on paid
leave, under the circumstances alleged here, constitutes an
adverse employment action, she points to nothing in the record
suggestive of the District’s discriminatory intent.
Dr. Bullock
has not established that other employees were not placed on leave
16
or were otherwise treated more favorably than she.
Dr. Bullock’s
claims based the Districts’ decisions not to renew her contract
and not to permit her to return to active employment fail for the
same reasons.
Again, nothing in the record demonstrate that
other similarly-situated employees were treated more favorably.
Presuming, however, that she could state a prima facie case
for discrimination on these bases, she nonetheless fails to offer
evidence suggesting that the District’s proffered reasons for its
decision not to renew Dr. Bullock’s contract, and not to permit
Dr. Bullock to return to active employment, are a pretext for
discrimination.
To survive summary judgment, Dr. Bullock “must
point to some evidence, direct or circumstantial, from which a
factfinder could reasonably either (1) disbelieve the employer's
articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer's action.”
at 764.
Fuentes, 32 F.3d
Said differently,
because the factfinder may infer from the combination of the
plaintiff's prima facie case and its own rejection of the
employer's proffered non-discriminatory reasons that the
employer unlawfully discriminated against the plaintiff and
was merely trying to conceal its illegal act with the
articulated reasons ..., a plaintiff who has made out a
prima facie case may defeat a motion for summary judgment by
either (I) discrediting the proffered reasons, either
circumstantially or directly, or (ii) adducing evidence,
whether circumstantial or direct, that discrimination was
more likely than not a motivating or determinative cause of
the adverse employment action.
Id. (internal citation omitted).
17
It is not enough for plaintiff to “show that the employer's
decision was wrong or mistaken, since the factual dispute at
issue is whether discriminatory animus motivated the employer,
not whether the employer is wise, shrewd, prudent, or competent.”
Id. at 765.
To survive summary judgment, “the nonmoving
plaintiff must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them ‘unworthy of
credence’....”
Id. (quoting Ezold v. Wolf, Block, Schorr &
Solis-Cohen, 983 F.2d 509, 531 (3d Cir.1992)).
In other words,
“the plaintiff's evidence rebutting the employer's proffered
legitimate reasons must allow a factfinder reasonably to infer
that each of the employer's proffered non-discriminatory reasons
... was either a post hoc fabrication or otherwise did not
actually motivate the employment action.” Id. at 764.
Noting that Title 14 of the Delaware Administrative Code,
section 725-2.0 requires the District to provide school
administrators with six months notice of an intent to non-renew a
contract, the District avers that its practice is to issue nonrenewal notices to all administrators placed on a PIP.
Thus, the
District issued Dr. Bullock a non-renewal notice because she was
placed on a PIP.
this explanation.
Dr. Bullock has not succeeded in discrediting
She fails to demonstrate that other
18
administrators who had been placed on a PIP did not receive a
non-renewal notice.
Having failed to raise a genuine dispute on
this issue, she cannot survive summary judgment.
Dr. Bullock’s claim based on the District’s decision not to
return her to active employment for the remainder of her contract
fails for the same reason.
Correspondence with the District
shows that the decision not to permit Dr. Bullock’s return was
based on the content of her rebuttal to the District’s internal
investigation findings.
The District characterized the document
as “a mean spirited personal attack on most, if not all, of the
people Dr. Bullock would work with on a day-to-day basis as the
Director of Human Resources.”
Again, Dr. Bullock points to
nothing in the record to suggest that the true motivation for the
District’s decision was based on discriminatory animus.
She
offers no evidence that other employees were treated more
favorably under similar circumstances.
The District is entitled
to judgment as a matter of law on this issue.
Given that Dr. Bullock has failed to establish a prima face
case for discrimination, or otherwise adduce evidence from which
a factfinder could find that discrimination was more likely than
not the motivating or determinative cause for the District’s
actions, her claims cannot survive.
Dr. Bullock’s Title VII and
§ 1981 claims for racial and gender discrimination are hereby
dismissed.
19
B.
Retaliation
By contrast, the Court finds that Dr. Bullock has raised
genuine issues of fact with regard to her Title VII and § 1981
retaliation claims that must be decided by a jury.
To establish
a prima facie case of retaliation, Dr. Bullock must demonstrate
three elements:
(1) she engaged in activity protected activity;
(2) the District took an adverse employment action against her;
and (3) there was a causal connection between her participation
in the protected activity and the adverse employment action.
See
Hutchins v. United Parcel Service, Inc., 197 Fed.Appx. 152, 156
(3d Cir. 2006).
These elements are met here.
Dr. Bullock’s submission to the Brandywine School Board
complaining of discriminatory treatment, as well as her EEOC
complaint, qualify as protected activities.
See Curay-Cramer v.
Ursuline Academy of Wilmington, Delaware, Inc., 450 F.3d 130, 135
(3d Cir. 2006)(recognizing formal EEOC complaints, as well as
informal complaints to management, qualify as protected activity
for purposes of a retaliation claim).
Dr. Bullock identifies
three adverse employment actions that followed the submission of
her complaints: (1) placement on paid administrative leave; (2)
the issuance of a contract non-renewal notice; and (3) the
decision not to return her to active employment.
Placement on
paid leave can qualify as an adverse employment action for
purposes of a retaliation claim.
20
See Killen, 2007 WL 2684541, at
*7.
Issuance of a non-renewal notice and the decision not to
permit Dr. Bullock to return to active employment unquestionably
qualify as adverse actions.
As for establishing a causal connection between these
adverse actions and Dr. Bullock’s protected activity, “[I]ndirect
evidence of retaliation may suffice to establish a causal
connection.”
Hutchins, 197 Fed.Appx. at 157 (citing Abramson v.
William Paterson College, 260 F.3d 265, 288 (3d Cir. 2001)).
The
record demonstrates that on December 1, 2007, Mr. Brumskill
transmitted Dr. Bullock’s discrimination complaint to the Board
and further noted a December 31, 2007 deadline for decisions
regarding the extension or renewal of all administrator
contracts.
Four days later, Mr. Brumskill informed Dr. Bulloock,
that she would be placed on leave.
Viewing the facts in a light
most favorable to Dr. Bullock, these events suffice to establish
a causal link between Dr. Bullock’s complaint and the decision
not to renew Dr. Bullock’s contract.
The record further
demonstrates that the District determined that Dr. Bullock would
not be permitted to return from paid leave based on her rebuttal
to the District’s in-house investigation of her discrimination
claims.
The District, of course, maintains that the non-renewal
notice issued as a matter of District policy.
But given that Mr.
Brumskill transmitted Dr. Bullock’s discrimination complaint to
21
the Board, specifically noting that December 31, 2007 was the
deadline for decisions renewal of all administrator contracts, a
genuine dispute exists regarding the District’s motives for
issuing Dr. Bullock the non-renewal.
Similarly, the record
demonstrates that the District based its decision not to permit
Dr. Bullock to return to active employment on her rebuttal of the
District’s internal investigation regarding his discrimination
claims.
A jury should determine whether the District’s decision
was retaliatory.
C.
Punitive Damages
The District rightly notes that Dr. Bullock to prove
entitlement to punitive damages, she must establish that the
District “acted with malice or reckless indifference to [her]
federally protected rights.”
Carter v. Delaware State Univ.,
Civ. No. 99-642, 2002 WL 335309, at *9 (D.Del. 2002)(quoting
Lafate v. Chase Manhattan Bank (USA), 123 F.Supp.2d 773, 784
(D.Del. 2000)), aff’d, 65 Fed.Appx. 397 (3rd Cir. 2003).
The
Court finds that triable issues of fact exist regarding whether
the District acted with malice or reckless indifference to Dr.
Bullock’s rights.
The Court therefore denies the District’s
request for summary judgment on Dr. Bullock’s punitive damages
claim.
D.
Affirmative Defense
Dr. Bullock styles her motion to bar the District from
22
asserting the affirmative defense that she failed to mitigate her
damages as one for summary judgment.5
Because the Court finds
that the sufficiency of this defense turns on issues of material
fact that must be determined by a jury, Dr. Bullock’s motion is
denied.
See, e.g., Burlington v. News Corp., 759 F.Supp.2d 580,
603 (E.D.Pa. 2010)(“There is a genuine issue of material fact
regarding whether Plaintiff exercised reasonable diligence in
attempting to secure employment as a broadcaster, and whether
substantially equivalent work was available to Plaintiff.”).
5
“Courts differ as to whether a motion for summary judgment
is the appropriate procedure by which to challenge an affirmative
defense.” Professional Buyer's Guild, LLC v. Ace Fire
Underwriter Ins. Co., Civ. No. 06-2127, 2007 WL 3227183, at *1
n.1 (D.N.J. Oct. 30, 2007) (citing United States v. Manzo, 182
F.Supp.2d 385, 395 n.6 (D.N.J. 2000) (“Because both parties refer
to matters outside the pleadings and for the sake of consistency
and clarity, the Court will generally treat the motion to strike
as a motion for summary judgment.”); Krauss v. Keibler-Thompson
Corp., 72 F.R.D. 615, 616 (D. Del. 1976) (“The weight of
authority and a close textual examination of the Rules convinces
this Court that a motion to strike an affirmative defense can be
considered only as a Rule 12(f) motion....”). Given that both
parties briefed the motion as one for summary judgment, the court
will consider the motion on this basis.
23
V.
CONCLUSION
For the aforementioned reasons, the District’s Motion for
Summary Judgment is granted, in part, and denied, in part.
Bullock’s Motion for Summary Judgment is denied.
An appropriate
Order will issue this date.
Dated: August 18, 2011
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
24
Dr.
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