Johnson v. Education, Department of, State of Hawaii
Filing
49
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 35 . Signed by JUDGE ALAN C KAY on 07/02/2013. (eps ) -- (1) GRANTS Defendants Motion for Summary Judgment as to Plaintiff's Title VI I claims based on discrete acts prior to April 10, 2008, (2) DENIES Defendants Motion for Summary Judgment as to Plaintiff's Title VII claims CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JAMES L. JOHNSON, JR.,
Plaintiff,
vs.
STATE OF HAWAI#I DEPARTMENT OF
EDUCATION,
Defendant.
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Civil No. 11-00704 ACK-RLP
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
PROCEDURAL BACKGROUND
On November 17, 2011, Plaintiff James L. Johnson, Jr.
(“Plaintiff”) filed a complaint against Defendant State of
Hawai#i Department of Education (“Defendant” or “DOE”).1/
1.
ECF No.
The Complaint contained allegations of employment
discrimination on the basis of race, sex, and age in violation of
Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act (“ADEA”).
No. 1.
Compl. at 2-4, ECF
On December 14, 2011, this Court adopted the magistrate
judge’s Findings and Recommendation that Plaintiff’s ADEA claim
1/
Plaintiff had filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”) in February
2009, and Plaintiff received a right to sue letter from the EEOC
in August 2011. ECF No. 1.
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be dismissed with prejudice because the Eleventh Amendment barred
ADEA claims against the State of Hawai#i.
ECF Nos. 8, 11.
As a
result, only Plaintiff’s claims for race and sex discrimination
under Title VII remain at issue in this lawsuit.
On January 15, 2013, Defendant filed a Motion for
Summary Judgment (“MSJ”) as to all of Plaintiff’s remaining
claims in the Complaint; the Motion was accompanied by a Concise
Statement of Facts.
ECF Nos. 35 & 36.
Plaintiff filed his
Opposition to the MSJ and his Concise Statement of Facts on May
24, 2013.
ECF Nos. 42 & 43.
Reply on May 31, 2013.
Defendant subsequently filed its
ECF No. 44.
The Court held a hearing
regarding this matter on June 17, 2013.
ECF No. 45.
After reviewing the memorandums and evidence submitted
by both parties, the Court issued a minute order on June 18, 2013
requiring supplemental briefing from the parties under Fed. Rule
Civ. Proc. (“Rule”) 56(e).
ECF No. 46.
Both Defendant and
Plaintiff submitted their supplemental briefs on June 28, 2013.
ECF Nos. 47 & 48.
FACTUAL BACKGROUND
I. DOE Teacher Hiring Process
The Court begins with a brief background of the DOE
teacher hiring process.
When a DOE school has a vacant teaching
position, the school principal or a designated representative
chooses applicants from a list of eligible teacher applicants to
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conduct interviews and hire a teacher to fill the vacant
position.
Decl. of Saiki at 2, ¶ 5, ECF No. 35.
The DOE
Personnel Regional Officer (“PRO”) generates the lists of
eligible applicants.
Id. at ¶ 4.
In order to be considered as
an eligible applicant, an individual must first complete the DOE
teacher application process, which includes passing the Ventures
interview and the PRAXIS exam.
Id. at ¶ 5.
The Ventures
interview consists of an interview with a principal or specially
trained DOE education officer; during the interview, the
individual must answer a set number of standardized questions.
Id. at 2 ¶ 6.
The purpose of the Ventures interview is to
determine the individual’s attitude, behavior, and thinking
towards teaching.
Id.
The PRAXIS exam is a set of tests, and teachers are
required to pass the exam in order to obtain their license.
Plntf.’s CSF Ex. 3 at 27-28, ECF No. 43-5.
Although the record
is less than clear, it appears that teachers have a certain
number of years in order to pass the exam.
Id. at 136-37.
Principals and representatives choose applicants to
interview from the eligible applicant list.
During the
interview, the applicants are asked questions in the following
categories: (1) Instructional Management, (2) Interpersonal
Relationships, (3) Commitment, and (4) Training/Certification/
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Experience/Special Abilities.
Decl. of Tom at 4, ¶ 13, ECF No.
47-1.
For the category of Instructional Management, the
interviewer determines whether the applicant “(a) understands
lesson design; (b) is knowledgeable of subject content (depth and
range); (c) is able to assess and diagnose student ability; (d)
is able to motivate students/maximize learning; and (e) has a
repertoire of teaching modes and strategies.
Id. at ¶ 14.
For the category of Interpersonal Relationships, the
interviewer considers whether the applicant “(a) has
communications skills and expresses ideas well; (b) is able to
manage student behavior in a constructive way; (c) is able to
develop positive and productive relationships with students,
parents, teachers, staff and others; (d) projects feelings of
caring, liking, and rapport; and (e) understands students’
cultural backgrounds, values, learning styles, and behavior
problems.”
Id. at ¶ 15.
For the category of Commitment, the interviewer
considers whether the applicant “(a) pursues
personal/professional learning and growth; (b) is enthusiastic,
poised, confident, encouraging; (c) strives to attain student
growth and learning; (d) develops positive student self images;
and (e) has [a] positive attitude towards children and learning.”
Id. at ¶ 16.
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For the category of Training/Certification/Experience/
Special Abilities, the interviewer considers whether the
applicant “(a) possesses job-related knowledge, skills, and
abilities required for the position; (b) is willing and capable
of teaching/serving the students assigned to this position; and
(c) possesses other valuable skills/interests/abilities related
to student activities or other supplementary duties.”
Id. at ¶
17.
Each applicant is rated on a scale of 1 to 4.
Decl. of
Romero at 2, ¶ 7, ECF No. 35-8; Decl. of McCall at 3, ¶¶ 12-13,
ECF No. 35-9.
follows:
The ratings, from highest to lowest, are as
4 - Excellent, 3 - Good, 2 - Fair, 1 - Poor.
Decl. of
Stewart at 000097 at ¶ 3.a, ECF No. 35-12; Decl. of Tom at 3, ¶
8, ECF No. 47-1.
If the principal or representative does not
make a selection from the list, the list is returned to the PRO
and another list is generated.
Decl. of Saiki at 3, ¶ 8, ECF No.
35-6.
Regarding the interview rating system, the description
of the scale is as follows.
A rating of “4” indicates that the
applicant has the maximum knowledge, skills, and abilities
(“KSAs”) necessary for immediate application on the job.
of Tom at 3, ¶ 12, ECF No. 47-1.
Decl.
The applicant’s KSAs are
“directly related to that required on the job and are of
sufficient scope and depth to be applicable to the full range of
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job requirements, including the most difficult or complex
situations.”
Id.
A rating of “3” indicates that the applicant’s KSAs are
“closely related to that required on the job.”
Id. at ¶ 11.
The
applicant’s KSAs are “substantial and applicable in meeting the
job requirements, including more difficult expectations.”
Id.
A rating of “2” indicates that the applicant has a
moderate level of KSAs that “are closely related to that required
on the job.”
Id. at ¶ 10.
The breadth and depth of the
applicant’s KSAs “are applicable in meeting most of the job
requirements, including some of the more difficult expectations.”
Id.
A rating of “1” indicates that the applicant has the
minimal degree of KSAs in order to adequately perform the job.
Id. at ¶ 9.
The applicant’s KSAs are “remotely related to that
required on the job” and are “severely lacking in scope and/or
depth.”
Id.
II. Substitute Teacher Hiring Process
To qualify as a substitute teacher, a person must apply
at a particular DOE school and request that the school sponsor
him or her to be a substitute teacher.
ECF No. 47-1.
Decl. of Tom at 8, ¶ 21,
The substitute teacher applicant must either have
a teaching certificate or take a Substitute Teaching Course
offered by the DOE.
Id.
After finishing the necessary paperwork
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and passing the required background checks, the applicant’s
information is placed in the Teacher Substitute Employee
Automated System (“TSEAS”) and the schools receive the
applicant’s information.
Id. at 10, ¶ 31.
Teachers or administrators may request a substitute
teacher for a particular day or period of days.
at ¶ 12, ECF No. 48.
Decl. of Johnson
Teachers may also elect to request a
particular substitute teacher by giving the system a substitute
teacher’s contact number.
Id. at ¶ 13.
III. Plaintiff’s Qualifications and Job Applications
Plaintiff is a 69 year-old Caucasian male.
Ex. A at 000003, ECF No. 35.
Def.’s CSF
Prior to obtaining his teaching
degree, Plaintiff graduated with a degree in Psychology from
Linfield College in Oregon.
1.
Decl. of Johnson at ¶ 2, ECF No. 48-
After completing his degree at Linfield, Plaintiff taught
celestial navigation classes at the Community College of
Micronesia, Portland State, Portland Community College, and
Clackamas Community College.2/
Id. at ¶¶ 3-4.
From 1982-1986 he
served as an elected member of the Clackamas Community College
Board of Education; he allegedly advocated for and saved the
preschool education program at the community college.
5.
Id. at ¶
In 2001, Plaintiff moved to Puna, Hawai#i and joined the
2/
Plaintiff sailed around the South Pacific for eight years
before teaching celestial navigation classes in the United
States. Decl. of Johnson at ¶¶ 3-4, ECF No. 48-1.
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policy council of Head Start, serving as a vice chairman and then
the chairman for the council.
Id. at ¶ 6.
During this time, he
decided to obtain his teaching license in order to teach in the
public schools.
Id. at ¶ 7.
At some point in time, Plaintiff
authored a textbook for third language English speakers.
Plntf.’s CSF Ex. 4 at ¶ 6, ECF No. 43.
In 2006, Plaintiff graduated from the Teacher Education
Program at the University of Hawai#i-Hilo.
3-7, ECF No. 35.
Def.’s CSF Ex. A at
After completing the teaching program,
Plaintiff received his teaching certificate and participated in
the Ventures interview.
Id. at 8-9.
Plaintiff failed the
Ventures interview on his first attempt, but subsequently passed
his second interview.
Id. at 9-11; Decl. of Saiki at 3, ¶ 11,
ECF No. 35-6.
Plaintiff’s graduating class was composed of twentyseven students.
Def.’s CSF Ex. A at 7, ECF No. 35; Plntf.’s CSF
Ex. 4, ECF No. 43-6.
The class contained two males, including
Plaintiff, and the rest of the class was composed of female
students.
Def.’s CSF Ex. A at 7, ECF No. 35.
While the ethnic
background of the female students is not fully disclosed by the
record; it appears that three of Plaintiff’s female classmates
were Caucasian.
Id. at 9.
The other male in Plaintiff’s class
did not seek a teaching position in Hawai#i because he moved to
China.
Plntf.’s CSF Ex. 4 at ¶ 6, ECF No. 43.
-8-
In 2006, Plaintiff started to interview for teaching
positions at various schools.
Plntf.’s CSF Ex. 2, ECF No. 43.
Because Plaintiff failed his first Ventures interview, he did not
start to receive interviews for job positions until he passed his
second Ventures interview around July 2006.
at 28-30, ECF No. 43-5.
Plntf.’s CSF Ex. 3
By this time, some of the people in
Plaintiff’s class had obtained jobs with the DOE.
Id. at 29,
lines 2-4.
After participating in a telephone interview, Plaintiff
was hired on a Limited Term Appointment (“LTA”) to teach
kindergarten at Ho#okena Elementary School from October 15, 2007
until June of 2008.
Id.; Def.’s CSF Ex. A at 14-15, ECF No. 35.
During his LTA, Plaintiff did not interview for teaching
positions because his name was not on the DOE PRO applicant list.
Def.’s CSF Ex. A at 16-20, ECF No. 35.
Following the completion
of his LTA, he continued to interview at various schools for a
full-time teaching position.
Plntf.’s CSF Ex. 2, ECF No. 43;
Def.’s CSF Ex. A at 16-20, ECF No. 35.
From 2006 until October 2007, Plaintiff applied for
twenty-seven teacher positions with the DOE.
Plntf.’s CSF Ex. 2.
Between June - December of 2008, Plaintiff applied for fifteen
teacher positions at nine different schools.
Id.
All of
Plaintiff’s female classmates secured teaching positions with the
DOE.
Plntf.’s CSF Ex. 4 at 4, ¶ 10.
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For one of the open job
positions, Plaintiff’s female classmate who had not passed her
PRAXIS exam was hired instead of Plaintiff.
Plntf.’s CSF Ex. 3
at 136-137, 141, ECF No. 43-5.
A. Plaintiff’s Alleged Specific Discrete Acts of
Discrimination
While the parties provide some information regarding
numerous interviews during these time periods (Def.’s MSJ at 516, ECF No. 35-3; Plntf.’s CSF at 2-5, ECF No. 43), the Court
observes that Plaintiff only discusses a few of the interviews in
his Opposition.
Plntf.’s Opp. at 7-10.
Accordingly, the Court
provides in detail the facts for the interviews where Plaintiff
specifically discusses his alleged evidence of discrimination.
1. Keonepoko Elementary School
Plaintiff discusses several interviews at Keonepoko
Elementary School in support of his claims of discrimination.
Principal Romero was the principal at Keonepoko Elementary School
during the events giving rise to this lawsuit.
Plntf.’s CSF Ex.
6, ECF No. 43.
Plaintiff interviewed for a fifth grade position on
August 11, 2006, but he did not receive the position.3/
3/
Plntf.’s
On August 11, 2006, Plaintiff claims that he was the
only applicant on the list for a fifth grade position and he was
not selected. Plntf.’s CSF at 2, ¶ 7, ECF No. 43. However,
while the Court observes that Plaintiff has a notation on Exhibit
2 regarding the position, the Court is not able to find any
support in the record for the proposition that he was the only
(continued...)
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Opp at 7.
Plaintiff was rated a 2 out of 4 in his interview.
Plntf.’s CSF Ex. 6 at 000155, ECF No. 43.
On September 28, 2006, Plaintiff was the only applicant
for a kindergarten position, but a probationary teacher whose
gender is unknown was placed in the position.
at 62.
Plntf.’s CSF Ex. 3
According to Plaintiff, “the person who got the job had a
DOE status of some sort that required that [Principal Romero]
give it to him rather than me.”
5-7, ECF No. 43.
Plntf.’s CSF Ex. 3 at 62, lines
However, Plaintiff also states that Romero told
him that “I would never hire you as a kindergarten teacher anyhow
. . . [b]ecause you don’t have the knowledge of the developmental
issues with children that young.”
Id. at 62, lines 10-16.
Plaintiff next interviewed for a fourth grade position
on June 26, 2008.
000152.
Plntf.’s CSF Ex. 2; Ex. 3 at 79-80; Ex. 6 at
There were three applicants for the position.
Romero at 2, ¶ 5, ECF No. 35-8.
Decl. of
The interview panel consisted of
Principal Romero, Lorena Soultz, a School Services Coordinator,
and Jon Stevenson, an Administrative School Assistant.
Id. at 2,
¶ 6.
The selectee for the position, a Caucasian woman,
scored an overall rating of 3 out of 4, for a “Good” rating from
the interview panel.
Id. at 2, ¶ 7; Plntf.’s CSF Ex. 3 at 81,
3/
(...continued)
candidate on the list for the fifth grade position.
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lines 19-20.
The selectee gave specific responses to questions
in the areas of Instructional management, Interpersonal
relationships, and Commitment.
Plntf.’s CSF Ex. 6 at 000154.
Additionally, the selectee’s former principals, Lucia Stewart
from Chiefess Kapiolani Elementary School and Paul McCarty from
Laupahoehoe Elementary School, “commended her for her
effectiveness in the classroom.”
Id.
that they would rehire her.
Furthermore, Plaintiff admitted
Id.
Both principals stated
in his deposition that the selectee is “a wonderful teacher, and
a hard-working person, and a good choice.”
Plntf.’s CSF Ex. 3 at
81, lines 12-13, ECF No. 43.
Plaintiff scored an overall rating of 2 out of 4 from
the interview panel.
Decl. of Romero at 3, ¶ 8, ECF No. 35-8;
Plntf.’s CSF Ex. 6 at 000153, ECF No. 43.
Principal Romero
alleges that Plaintiff provided vague answers to questions or did
not address the question concept.
Id.
Plaintiff’s next interview at Keonepoko occurred on
August 4, 2008, for the position of kindergarten teacher.
Plntf.’s CSF Ex. 6 at 000152.
Plaintiff was the only candidate
on the initial list for the kindergarten position.
Romero at 3, ¶ 12, ECF No. 35-8.
Decl. of
Principal Romero interviewed
Plaintiff along with Vice-Principal Michelle Payne-Arakaki and
teacher Candice Lim, who was the kindergarten grade level
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chairperson.
Id. at 3, ¶ 11.
Plaintiff received an overall
rating of 2 out of 4, for a “Fair” rating.
Id. at 3, ¶ 12.
Romero states that, in both the June 26, 2008 and
August 4, 2008 interviews, Plaintiff’s strength area was his
commitment to the students.
35-8.
Decl. of Romero at 4, ¶ 16, ECF No.
However, he did not receive a good rating in the areas of
“instructional management, interpersonal relationships, and
training/certification/experience/special abilities.”
¶ 16.
Id. at 4,
Romero also states that Plaintiff “generalized his
responses and did not provide specific strategies for lesson
design and solving non-academic problems.”
Id.
Additionally, with regard to the August 4, 2008
interview, Principal Romero contacted Ms. Uchimura, the principal
of Ho#okena Elementary School where Plaintiff completed his
kindergarten LTA.
Plntf.’s CSF Ex. 6 at 000153, ECF No. 43.
Principal Romero summarized Ms. Uchimura’s comments as
communicating that Plaintiff was “nice,” “needs to watch what he
says to parents,” “might be better if he had more structure,” and
“had a lot of help from America’s Choice coach.”
Id.
Principal
Uchimura also stated that she would rehire Plaintiff only if she
was “desperate.”
Id.
Principal Romero did not offer Plaintiff the
kindergarten position.
Decl. of Romero at 3, ¶ 13, ECF No. 35-8.
According to Romero, only teacher applicants with a rating of at
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least 3 out of 4 are hired in order to ensure that the school
hires a quality teacher.
Id. at 4, ¶ 15.
A new DOE PRO list was
generated, and a Japanese female was interviewed and hired.
at 3, ¶ 14.
4.
Id.
The selectee received an overall rating of 3 out of
Id. at 3, ¶ 14.
Additionally, the selectee had “specific
knowledge of the school and specific plans for dealing with
parent and student problems, and awareness of assessment data
(formative and summative) used to create lessons.”
Id. at 3, ¶
14.
2. Waiakea Intermediate School
On November 7, 2008, Plaintiff applied for an English
Language Learner (“ELL”) position at Waiakea Intermediate School.
Plntf.’s CSF Ex. 2, Ex. 13, Ex. 14, ECF No. 43.
candidates were on the list for the position.
13 at 000558.
Only two
Plntf.’s CSF Ex.
The interview panel consisted of Vice Principal
Robert Hill, Registrar Randall Kaya, and the previous school
year’s ELL teacher, Holly Lee.
Plntf.’s CSF Ex. 13 at 000558.
Both Kaya and Lee rated Plaintiff a 4 out of 4 in the first
interview, but Vice Principal Hill rated Plaintiff a 2 out of 4.
Id. at 000558.
Vice Principal Hill expressed concern to
Principal Matsunami that Kaya and Lee were inexperienced at
interviewing candidates because there was a discrepancy in the
ratings.
Hill also voiced concern about Plaintiff’s “lengthy,
rambling responses and lack of specificity,” his responses to
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classroom management, his lack of experience in teaching middle
school students, and his “limited knowledge of teaching Hawaii
Content and Performance Standards.”
Decl. of Matsunami at 2, ¶
7, ECF No. 35-13; Decl. of Hill at 3, ¶ 12, ECF No. 44-1.
Subsequently, a second interview was held on November
21, 2008 with a panel consisting of Principal Matsunami and Vice
Principal Hill.
Decl. of Matsunami at 2, ¶¶ 7-8.
For the second
interview, there were nine applicants for the position, including
Plaintiff, but only three applicants agreed to be interviewed.
Id. at 3, ¶ 8.
Principal Matsunami rated Plaintiff a 1 out of 4,
and Vice Principal Hill rated Plaintiff a 2 out of 4.
¶ 9.
Id. at 3,
According to Principal Matsunami, (1) Plaintiff is not a
certificated ELL teacher, (2) Plaintiff did not have knowledge of
the basic categorization of second language learners as
illustrated by his statement “I don’t know the term N.E.P.” (NonEnglish Proficient), and (3) Plaintiff was unclear regarding his
knowledge of how to teach reading to ELL students.
Ex. 13 at 000559.
Plntf.’s CSF
Principal Matsunami did not hire any of the
three applicants who were interviewed.
Id. at 3, ¶ 11.
A third list was generated with four applicants.
Plntf.’s CSF Ex. 14 at 000575, ECF No. 43.
Two of the applicants
were interviewed, and a Caucasian female was selected.
selectee had an ELL certificate.
Id.
The
Id. at 000576; Plntf.’s CSF Ex.
13 at 000559.
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B. Plaintiff’s Hiring Offer and Substitute Teaching
Experiences
After Plaintiff participated in the Keonepoko and
Waiakea interviews, Plaintiff interviewed for a teaching position
at Honoka#a Elementary School on December 8, 2008.
Def.’s CSF at
5, ¶ 13, ECF No. 36; Decl. of Tolentino at 2, ¶ 6, ECF No. 35-14.
According to Honoka#a’s principal, Plaintiff would have been
hired but for a Hawai#i Labor Relations Board order mandating the
return of the original fourth grade teacher to the job position.
Decl. of Tolentino at 2, ¶¶ 8-9, ECF No. 35-14.
Notwithstanding Plaintiff’s numerous rejections for
full-time employment, Plaintiff has consistently obtained
substitute teaching jobs at over nine schools.
at ¶ 15, ECF No. 48-1.
Decl. of Johnson
Over nineteen teachers have specifically
requested Plaintiff to be their substitute teacher.
Id. at ¶ 15.
Plaintiff has also served as a long-term substitute teacher for
the following schools and time periods:
(1) Waters of Life
Public Charter School from January - May 2007, (2) Pahoa High
School and Intermediate School from August - October 2009, (3)
Keonepoko Elementary School from April - May 2010, (4)
Laupahoehoe Elementary School from August - October 2010.
Id. at
¶ 17.4/
4/
Notwithstanding this Court’s minute order on June 18,
2013 requesting specific evidence of Plaintiff’s substitute
(continued...)
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STANDARD
A party may move for summary judgment on any claim or
defense - or part of a claim or defense - under Federal Rule of
Civil Procedure (“Rule”) 56.
Summary judgment “should be granted
‘if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.’”
Maxwell v. Cnty. of San Diego, 697 F.3d 941, 947 (9th
Cir. 2012) (quoting Fed. R. Civ. P. 56(a)).
Under Rule 56, a
“party asserting that a fact cannot be or is genuinely disputed
must support the assertion,” either by “citing to particular
parts of materials in the record” or by “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1).
The substantive law determines which facts are
material; “only disputes over facts that might affect the outcome
of the suit under the governing law properly preclude the entry
of summary judgment.”
Nat’l Ass’n of Optometrists & Opticians v.
Harris, 682 F.3d 1144, 1147 (9th Cir. 2012).
“The mere existence
of some alleged factual dispute between the parties will not
4/
(...continued)
teaching experience, the DOE failed to provide evidence as to the
duration of Plaintiff’s substitute teaching jobs or any reviews
of Plaintiff’s work performance by principals or teachers.
Def.’s Supp., ECF No. 47.
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defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of
material fact.”
Scott v. Harris, 550 U.S. 372, 380 (2007)
(citation omitted).
A genuine issue of material fact exists if “a
reasonable jury could return a verdict for the nonmoving party.”
United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986)).
Conversely, “[w]here the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.”
Scott, 550 U.S. at
380.
The moving party has the burden of persuading the court
as to the absence of a genuine issue of material fact.
Baca, 596 F.3d 583, 587 (9th Cir. 2010).5/
Avalos v.
If the moving party
satisfies its burden, the nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts.”
Cir. 2010).
Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th
The nonmoving party must present evidence of a
5/
When the party moving for summary judgment would bear the
burden of proof at trial, the movant must present evidence which
would entitle it to a directed verdict if the evidence were to go
uncontroverted at trial. Miller v. Glenn Miller Prods., 454 F.3d
975, 987 (9th Cir. 2006) (citation omitted). In contrast, when
the nonmoving party would bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by pointing
out the absence of evidence from the nonmoving party. Id.
(citation omitted).
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“genuine issue for trial,” Fed. R. Civ. P. 56(e), that is
“significantly probative or more than merely colorable.”6/
LVRC
Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)
(citation omitted).
Summary judgment will be granted against a
party who fails to demonstrate facts sufficient to establish “an
element essential to that party’s case and on which that party
will bear the burden of proof at trial.”
Parth v. Pomona Valley
Hosp. Med. Ctr., 630 F.3d 794, 798-99 (9th Cir. 2010) (citation
omitted).
When evaluating a motion for summary judgment, the
court must “view the facts and draw reasonable inferences in the
light most favorable to the party opposing the summary judgment
motion.”
Scott v. Harris, 550 U.S. 372, 378 (2007).
The court
may not, however, weigh conflicting evidence or assess
credibility.
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008).7/
6/
The Ninth Circuit has noted that “Legal memoranda and
oral argument, in the summary-judgment context, are not evidence,
and do not create issues of fact capable of defeating an
otherwise valid motion for summary judgment.” Flaherty v.
Warehousemen, Garage and Service Station Emp. Local Union No.
334, 574 F.2d 484, 486 n.2 (9th Cir. 1978), see also Barcamerica
Intern. USA Trust v. Tyfield Importers, 289 F.3d 589, 593 n.4
(9th Cir. 2002). Additionally, allegations in the plaintiff’s
complaint “do not create an issue against a motion for summary
judgment supported by affidavit.” Flaherty, 574 F.2d at 486 n.2.
7/
Nonetheless, a “conclusory, self-serving affidavit” that
lacks detailed facts and supporting evidence may not create a
genuine issue of material fact. F.T.C. v. Neovi, Inc., 604 F.3d
1150, 1159 (9th Cir. 2010). Moreover, “[w]hen opposing parties
tell two different stories, one of which is blatantly
(continued...)
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Accordingly, if “reasonable minds could differ as to the import
of the evidence,” summary judgment will be denied.
Anderson, 477
U.S. at 250–51.
DISCUSSION
I. Whether This Court Should Consider Plaintiff’s Alleged
Discrete Acts of Discrimination That Occurred Before April 10,
2008
As a preliminary issue, Defendant argues that Plaintiff
may not present claims of discrimination for events that occurred
prior to April 10, 2008.
Def.’s MSJ at 21, ECF No. 35-3.
In
order for a district court to have subject matter jurisdiction
over Title VII claims, a plaintiff must first exhaust his or her
administrative remedies by filing a timely charge with the EEOC
to allow the agency to investigate the charge.
307 F.3d 1092, 1104 (9th Cir. 2002).
Lyons v. England,
Typically, a plaintiff must
file an administrative charge with the EEOC “within 180 days of
the last act of discrimination.”
MacDonald v. Grace Church
Seattle, 457 F.3d 1079, 1081-82 (9th Cir. 2006).
However, if the
plaintiff first institutes proceedings with a state or local
7/
(...continued)
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” Scott,
550 U.S. at 380. “The general rule in the Ninth Circuit is that
a party cannot create an issue of fact by an affidavit
contradicting his prior deposition testimony.” Yeager v. Bowlin,
693 F.3d 1076, 1080 (9th Cir. 2012).
-20-
agency with authority over discrimination claims, then the
limitations period is extended to 300 days.
Id. at 1082.
The Supreme Court has stated that “discrete
discriminatory acts are not actionable if time barred.”
Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
In
this case, each incident where the DOE refused to hire Plaintiff
constitutes a “discrete act.”
Id. at 114 (“Discrete acts such as
. . . refusal to hire are easy to identify.
Each incident of
discrimination . . . constitutes a separate actionable ‘unlawful
employment practice.’”).
Regarding the statute of limitations,
Plaintiff “dual filed” with the Hawaii Civil Rights Commission
and the EEOC on February 4, 2009.
No. 139.
Def.’s MSJ at Ex. B & C, ECF
Plaintiff concedes that, upon application of the 300
day limitation, only incidents that occurred from April 10, 2008
until February 4, 2009 are actionable under Title VII.
Opp. at 4, ECF No. 42.
Plntf.’s
Therefore, the Court GRANTS Defendant’s
Motion for Summary Judgment as to Plaintiff’s Title VII claims
based on discrete acts prior to April 10, 2008.
Although Plaintiff may not hold Defendant liable for
incidents prior to April 10, 2008; Plaintiff argues that this
Court may consider the incidents as circumstantial background
evidence to support a finding of discrimination regarding
Plaintiff’s timely-filed claims.
Plntf.’s Opp. at 4-5, ECF No.
42.
-21-
The United States Supreme Court stated that an employee
may use “prior acts as background evidence in support of a timely
claim.”
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
113 (2002).
Accordingly, while Plaintiff may not impose
liability or obtain relief for discrete acts prior to April 10,
2008, the Court may consider the prior acts as evidence to
determine whether discrimination occurred in the timely-filed
claims.
See also, Nelson v. City & Cnty. of San Francisco, 123
Fed. Appx. 817, 820 (9th Cir. 2005) (considering time-barred acts
when examining whether inference of discrimination existed for
the timely-filed claim); DeCaire v. Mukasey, 530 F.3d 1, 18 (1st
Cir. 2008) (“A discriminatory action for which a claim was not
timely filed cannot be used as a basis to award relief but can be
used as background in support of later claims of gender
discrimination.”); O’Neal v. City of Chicago, 588 F.3d 406, 409
(7th Cir. 2009) (holding that time-barred acts may be considered
as background evidence); Henderson v. Ford Motor Co., 403 F.3d
1026, 1037 (8th Cir. 2005) (acknowledging that time-barred acts
may be used as “evidence of discrimination to support a timely
claim”).
Additionally, the Court may consider Defendant’s
conduct occurring after Plaintiff’s February 4, 2009
administrative charge if such evidence is relevant to the
discrete acts at issue in this litigation.
-22-
See Lyons v. England,
307 F.3d 1092, 1115 (9th Cir. 2002) (court considered employer
acts in 1997 that occurred after the discrete act in 1996 when
determining the issue of pretext).
II. Title VII Statutory Framework
Title VII states that “[i]t shall be an unlawful
employment practice for an employer to fail or refuse to hire or
to discharge any individual . . . because of such individual’s
race, color, religion, sex, or national origin.”
2000e-2(a)(1).
42 U.S.C. §
The Ninth Circuit has noted that “a plaintiff may
show an inference of discrimination in whatever manner is
appropriate in the particular circumstances.”
Hawn v. Executive
Jet Management, Inc., 615 F.3d 1151, 1156 (9th Cir. 2010).
Accordingly, a plaintiff may demonstrate an inference of
discrimination by “comparison to similarly situated individuals,
or any other circumstances surrounding the adverse employment
action that give rise to an inference of discrimination.”
(internal citations and quotation marks omitted).
Id.
In order to
evaluate the evidence in an orderly way, motions for summary
judgment regarding Title VII claims may be analyzed through the
burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
2010).
Hawn, 615 F.3d 1151, 1155-59 (9th Cir.
Both Plaintiff and Defendants utilize the McDonnell
Douglas framework in analyzing Plaintiff’s claims.
-23-
For the first step in the burden-shifting framework,
Plaintiff must establish a prima facie case of employment
discrimination.
Hawn v. Executive Jet Management, Inc., 615 F.3d
1151, 1155 (9th Cir. 2010).
In other words, Plaintiff must
“offer evidence that gives rise to an inference of unlawful
discrimination.”
Id. at 1156.
The Ninth Circuit has held that
“the plaintiff in an employment discrimination action need
produce very little evidence in order to overcome an employer’s
motion for summary judgment.”
Chuang v. Univ. of California
Davis Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000).
“This is because the ultimate question is one that can only be
resolved through a searching inquiry–one that is most
appropriately conducted by a factfinder, upon a full record.”
Id. (citing Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410
(9th Cir. 1996)) (internal quotation marks omitted).
Specifically with regard to a failure to hire or
failure to promote claim, Plaintiff must show the following
elements to establish a prima facie case:
(1) he belongs to a
protected class, (2) he applied for and was qualified for a job
which the employer was seeking applicants, (3) he was rejected
despite his qualifications, and (4) “the employer filled the
position with an employee not of plaintiff’s class, or continued
to consider other applicants whose qualifications were comparable
-24-
to plaintiff’s after rejecting plaintiff.”8/
Dominguez-Curry v.
Nevada Transp. Dep’t., 424 F.3d 1027, 1037 (9th Cir. 2005); see
Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002); Cordova v.
State Farm Ins. Co., 124 F.3d 1145, 1148 (9th Cir. 1997); Lam v.
Univ. of Hawai#i, 40 F.3d 1551, 1559 (9th Cir. 1994).
If Plaintiff establishes a prima facie case, “the
burden of production, but not persuasion, then shifts to the
employer to articulate some legitimate, nondiscriminatory reason
for the challenged action.”
Hawn, 615 F.3d at 1155.
8/
Defendant argues that the standard for the fourth
element is whether “similarly situated individuals outside his
protected class were treated more favorably.” Def.’s MSJ at 23,
ECF No. 35-3 (citing Chuang v. Univ. of Cal. Davis, Bd. of
Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000). The Court notes
that, in the failure to promote and failure to hire context,
Ninth Circuit panels have articulated the fourth element in
different ways. Compare Chuang, 225 F.3d at 1123 (examining
whether “similarly situated individuals outside [plaintiff’s]
protected class were treated more favorably”) with DominguezCurry, 424 F.3d at 1037 (examining whether “the employer filled
the position with an employee not of plaintiff’s class, or
continued to consider other applicants whose qualifications were
comparable to plaintiff’s after rejecting plaintiff”) and Cordova
v. State Farm Ins. Co., 124 F.3d 1145, 1148 (9th Cir. 1997)
(examining whether “the position remained open and the employer
continued to seek applications from persons with comparable
qualifications”). In this case, because the DOE hired females
instead of Plaintiff for the teaching positions despite his
comparable qualifications, Plaintiff establishes a prima facie
case regardless of the standard used for the fourth element. See
Section III.A.1.a. infra at 28-31. The court also notes that the
issue of whether Plaintiff’s qualifications are superior or
inferior to the selectee’s is a question of fact that should not
be decided on summary judgment. See Lyons v. England, 307 F.3d
1092, 1117 (9th Cir. 2002).
-25-
If Defendant meets this burden, then Plaintiff must
raise “a triable issue of material fact” as to whether
Defendant’s proffered reasons for declining to hire Plaintiff are
“mere pretext for unlawful discrimination.”
1155.
Hawn, 615 F.3d at
“[A] plaintiff’s burden is much less at the prima facie
stage than at the pretext stage.”
Hawn, 615 F.3d at 1158.
“A plaintiff can show pretext directly, by showing that
discrimination more likely motivated the employer, or indirectly,
by showing that the employer's explanation is unworthy of
credence.”
Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641
(9th Cir. 2003).
Direct evidence is usually composed of “clearly
sexist, racist, or similarly discriminatory statements or actions
by the employer.”
Coghlan v. Am. Seafoods Co., 413 F.3d 1090,
1094–95 (9th Cir. 2005).
“Because direct evidence is so
probative, the plaintiff need offer ‘very little direct evidence
to raise a genuine issue of material fact.’” Id. at 1095.
In
contrast, circumstantial evidence constitutes “evidence that
requires an additional inferential step to demonstrate
discrimination.”
Id. at 1095.
A plaintiff’s circumstantial
evidence must be both specific and substantial in order for a
Title VII claim to survive summary judgment.
Becerril v. Pima
Cnty. Assessor's Office, 587 F.3d 1162, 1163 (9th Cir. 2009)
(citing Bergene v. Salt River Project Agr. Imp. And Power Dist.,
272 F.3d 1136, 1142-43 (9th Cir. 2001)).
-26-
III. Whether Plaintiff Meets His Burden of Identifying a Genuine
Issue of Material Fact Regarding His Race and Sex Discrimination
Claims
Plaintiff over the time period of 2006 - 2008 mentions
numerous discrete acts where Defendant failed to hire him.
generally, Plntf.’s CSF at 2-6, ECF No. 43.
See
According to the
Ninth Circuit, this court should separately consider each
discrete act for Plaintiff’s discrimination claims.
Norris v.
City and Cnty of San Francisco, 900 F.2d 1326, 1330 (9th Cir.
1990) (holding that the district court should have considered
each employment decision separately).
With respect to some of Plaintiff’s discrete acts,
Plaintiff fails to meet his burden under Rule 56 because he does
not provide any legal analysis as discussed infra in Section
III.C.
However, the Court notes that Plaintiff specifically
identifies and discusses three discrete acts within the April 10,
2008 through February 4, 2009 timeframe that allegedly
demonstrate the DOE’s discrimination.
Two of these acts occurred
at Keonepoko Elementary School, where Plaintiff interviewed on
June 26, 2008 for a fourth grade teacher position and on August
4, 2008 for a kindergarten teacher position.
8.
Plntf.’s Opp. at 7-
One act occurred at Waiakea Intermediate School, where
Plaintiff interviewed on November 7 and 14, 2008 for an ELL
teaching position.
Plntf.’s Opp. at 8-9.
-27-
The Court will examine
each specific school and discrete act discussed by Plaintiff in
his Opposition.
A. Keonepoko Elementary School
1. Whether Plaintiff Presents Specific and Substantial
Evidence Showing an Inference of Discrimination
Regarding the June 26, 2008 Fourth Grade Teaching
Position
On June 26, 2008, Plaintiff interviewed for the
position of fourth grade teacher.
ECF No. 43.
Plntf.’s CSF Ex. 6 at 000152,
However, he was not hired for the position.
Id. at
000154.
a. Whether Plaintiff Presents a Prima Facie Case
of Discrimination
Regarding the first three elements of the prima facie
case, the DOE concedes that (1) Plaintiff belongs to a protected
category (race and sex),9/ (2) Plaintiff applied for and met the
minimum qualifications for the fourth grade teaching position,
and (3) Plaintiff was rejected from the position.
Def.’s MSJ at
25; Decl. of Romero at 3, ¶ 9 and 4, ¶ 17, ECF No. 35-8.
With
respect to the last element, the DOE argues that Plaintiff failed
9/
Under Title VII, Caucasian males are considered a
protected class regardless of whether they are part of the
minority or the majority of a population. Clemmons v. Hawaii
Medical Serv. Ass’n, 836 F. Supp. 2d 1126, 1137 (D. Haw. 2011)
(citing Aragon v. Republic Silver State Disposal Inc., 292 F.3d
654, 659 (9th Cir. 2002)).
-28-
to demonstrate that similarly situated individuals outside of his
protected class were treated more favorably.
Def.’s Reply at 6,
ECF No. 44.
Regarding the fourth element, Plaintiff may meet his
burden in a failure to hire claim by showing that the employer
“continued to seek applications from persons with comparable
qualifications.”
Cordova, 124 F.3d at 1148.
In Lam v. Univ. of
Hawai#i, the Ninth Circuit found that an Asian woman plaintiff
established a prima facie case by showing that a law school
rejected the plaintiff’s application for a director position in
favor of a Caucasian woman.
1994).10/
40 F.3d 1551, 1561 (9th Cir.
In this case, there is evidence in the record that the
DOE examined other candidates and selected a Caucasian female to
fill the position.11/
Plntf.’s CSF Ex. 6 at 000154, ECF No. 43;
Def.’s Supp. at 8, ECF No. 47.
Regarding the qualifications
10/
The Ninth Circuit noted that, even if the law school
presented evidence of its favorable treatment of other Asian
women, “such evidence creates at most a genuine dispute as to a
material factual question.” Id.; See also Gutzwiller v. Fenik,
860 F.2d 1317, 1320-21, 1334 (6th Cir. 1988) (court upheld jury
verdict for Caucasian female plaintiff who was denied tenure in
favor of another Caucasian female).
11/
The fact that the selectee is also Caucasian does not
prevent Plaintiff from establishing a prima facie case because
the Court is required to examine the combination of both race and
sex when examining Plaintiff’s discrimination claim. See Lam, 40
F.3d at 1561 (noting that “it is necessary to determine whether
the employer discriminates on the basis of that combination of
factors, not just whether it discriminates against people of the
same race or of the same sex”).
-29-
requirement, Plaintiff presents evidence that he qualified for
the position, which the DOE concedes.
See Plntf.’s Supp., Decl.
of Johnson at ¶¶ 2 - 9, ECF No. 48-1; Def.’s MSJ at 25, ECF No.
35-3; Decl. of Husted at ¶ 8, ECF No. 43-1.12/
For a motion for
summary judgment, this Court need not determine if Plaintiff or
the selectee was the best qualified applicant when determining
the existence of a prima facie case.
See Lyons v. England, 307
F.3d 1092, 1117 (9th Cir. 2002).
Additionally, the Court notes that Plaintiff meets the
standard of showing that similarly situated individuals outside
of Plaintiff’s class were treated more favorably.
225 F.3d at 1120, 1124-25.
See Chuang,
The Ninth Circuit has stated that the
question of whether two persons are similarly situated is
“ordinarily a question of fact.”
See Hawn, 615 F.3d at 1157.
As
mentioned above, a Caucasian female who is outside of Plaintiff’s
class obtained the teaching position.
Plntf.’s CSF Ex. 6 at
000154, ECF No. 43; Def.’s Supp. at 8, ECF No. 47.
12/
Plaintiff and
Defendant argues that Husted’s declaration should be
disregarded because Husted was not involved in the hiring
process, does not have first-hand knowledge of the interview
applicants for each position, and does not know the individual
needs of the schools. Def.’s MSJ at 7, ECF No. 44. However, the
Court observes that Husted used to be the Executive Director and
chief negotiator for the Hawaii State Teachers Association and
used to work as a teacher in Hawai#i. Decl. of Husted at ¶ 6,
ECF No. 43-1. Defendant’s arguments raise questions about the
weight of Plaintiff’s evidence that should not be resolved by the
Court in a summary judgment proceeding; accordingly, this Court
declines to weigh the parties’ conflicting evidence. See In re
Barboza, 545 F.3d at 707.
-30-
the selectee are arguably similarly situated because Plaintiff
also qualified for the position.
See Plntf.’s Supp., Decl. of
Johnson at ¶¶ 2 - 9, ECF No. 48-1; Decl. of Husted at ¶ 8, ECF
No. 43-1.
Accordingly, Plaintiff meets his burden of
establishing a prima facie case.
b. Whether the DOE Articulates a Legitimate,
Nondiscriminatory Reason for Declining to Hire
Plaintiff for the Fourth Grade Teaching Position
As noted above, the defendant’s burden with respect to
establishing a legitimate, nondiscriminatory motive is one of
production, not persuasion.
Accordingly, the “defendant need not
persuade the court that it was actually motivated by the
proffered reasons.”
Texas Dep't of Cmty. Affairs v. Burdine, 450
U.S. 248, 254 (1981).
In this case, the DOE sets forth as its legitimate,
nondiscriminatory reason that Plaintiff was not the most
qualified candidate for the position.
17, ECF No. 35-8.
Decl. of Romero at 4, ¶
The selectee for the fourth grade position
scored an overall rating of 3 out of 4, which was higher than
Plaintiff’s rating of 2 out of 4.
Def.’s MSJ Reply at 10, Decl.
of Romero at 2, ¶ 7, ECF No. 35-8.
Additionally, the selectee
directly answered interview questions in the areas of
Instructional management, Interpersonal relationship, and
Commitment.
Plntf.’s CSF Ex. 6 at 000154, ECF No. 43.
-31-
Moreover,
the selectee’s former principals at Chiefess Kapiolani Elementary
School and Laupahoehoe Elementary school commended the selectee
and stated they would rehire her.
Decl. of Romero at ¶ 7, ECF
No. 35-8.
According to the DOE, Plaintiff answered the interview
questions with generalizations and gave vague responses.
of Romero at 3, ¶ 8, ECF No. 35-8.
Decl.
He allegedly did not provide
specific strategies for lesson design and solving non-academic
problems.
Plntf.’s CSF Ex. 6 at 000154, ECF No. 43.
Additionally, Principal Romero notes that Plaintiff
stated in his interview that “after he got tenure he would shake
things up in DOE.”
Plntf.’s CSF Ex. 6 at 000155, ECF No. 43.
Romero identifies this statement as a “red flag” influencing her
decision not to hire Plaintiff because the statement indicates
that “student achievement and success may not be his ultimate
reason for wanting to work at [Keonepoko].”
Id.
Because the DOE
has produced evidence of a legitimate, nondiscriminatory reason
for declining to hire Plaintiff, the Court finds that the DOE has
met its burden to rebut Plaintiff’s prima facie case.
See
Bergene, 272 F.3d at 1143 (holding that defendant presented a
legitimate, nondiscriminatory reason for promoting male selectee
instead of the female plaintiff by producing evidence that the
selectee had higher ratings than the plaintiff).
-32-
c.
Whether Plaintiff Presents Specific and
Substantial Evidence of Pretext
As a result of Defendant’s stated nondiscriminatory
reason for the hiring action; the burden shifts to Plaintiff to
raise a “triable issue of material fact as to whether the
defendant’s proferred reasons . . . are mere pretext for unlawful
discrimination.
Hawn, 615 F.3d at 1155.
As explained by the
Ninth Circuit, “a plaintiff can prove pretext in two ways: (1)
indirectly, by showing that the employer’s proffered explanation
is “unworthy of credence” because it is internally inconsistent
or otherwise not believable, or (2) directly, by showing that
unlawful discrimination more likely motivated the employer.”
Chuang v. Univ. of California Davis, Bd. of Trustees, 225 F.3d
1115, 1127 (9th Cir. 2000).
In this case, Plaintiff does not provide any admissible
direct evidence of Defendant’s alleged impermissible
discriminatory intent.
See Plntf.’s Opp. at 7-8, ECF No. 42.
Plaintiff in his Complaint asserts that unnamed teachers in the
DOE made the following statements about the DOE’s decision not to
hire Plaintiff:
my friend.
“You are old, white, and male.
Get used to it.”
This is the DOE
Compl. at 3, ECF No. 1.
Besides
the fact that Plaintiff does not mention this comment in his
Opposition or Concise Statement of Facts; the Court observes that
the statement is inadmissable hearsay.
-33-
Fed. R. Evid. 801(c).
These statements were made outside of a trial or hearing
testimony and would be offered in evidence to prove the truth of
the matter asserted - in this case, that the DOE is in fact
discriminating against Plaintiff on the basis of race or sex.
The statement does not constitute an admission by the DOE because
Plaintiff offers no evidence to demonstrate that the statement
relates to a matter within the scope of these unknown teachers’
employment.
Breneman v. Kennecott Corp., 799 F.2d 470, 473 (9th
Cir. 1986) (holding that statements of employees are not
admissions of the employer if the statement does not relate to a
matter within the scope of the employee’s employment).
Accordingly, because these statements would be inadmissible at
trial, Plaintiff’s claims cannot survive Defendant’s MSJ on the
basis of these statements.
See Rule 56 (c)(2); Anheuser-Busch,
Inc. v. Natural Beverage Distributors, 69 F.3d 337, 345 n.4 (9th
Cir. 1995) (“In general, inadmissible hearsay evidence may not be
considered on a motion for summary judgment.”).
Because Plaintiff’s evidence is circumstantial in
nature, the evidence must be both specific and substantial in
order to survive summary judgment.
Bergene, 272 F.3d at 1142.
For the following reasons, the Court concludes that Plaintiff
raises a genuine issue of material fact to survive Defendant’s
MSJ.
-34-
While Defendant argues that Plaintiff was not the best
qualified candidate; Plaintiff produces evidence of his
qualifications for the position.
ECF No. 48.
Decl. of Johnson at ¶¶ 4-19,
The Supreme Court has held that “qualifications
evidence may suffice, at least in some circumstances, to show
pretext.”
Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006).
Plaintiff had been employed as a substitute teacher at several
schools and taught classes for numerous grade levels.13/
Johnson at ¶¶ 14-17, ECF No. 48.
Decl. of
Additionally, prior to
receiving his teaching certificate, Plaintiff had obtained
teaching experience at a community college and had participated
in shaping policies for education institutions.
Id. at ¶¶ 4-6.
The question of whether or not Plaintiff’s qualifications were
higher than the selectee’s is an issue of fact for a factfinder
to resolve at trial.
See Ash, 546 U.S. at 457; see also, Chuang,
225 F.3d at 1127 (holding that plaintiff’s strong qualifications
created a genuine issue of material fact regarding pretext).
Additionally, while the DOE argues that Plaintiff did
not interview well, the Court observes that the interview process
13/
The Court observes that Plaintiff’s substitute teaching
experience is extensive and includes long-term substitute
teaching jobs. See Decl. of Johnson at ¶ 15-17. Moreover, the
record reflects that at least 19 teachers have specifically
requested that Plaintiff substitute teach for their classes. Id.
Plaintiff’s teaching experience and the fact that his peers
request his services provide support for a conclusion that there
is a genuine issue of material fact regarding the DOE’s
motivations for failing to hire him on a full-time basis.
-35-
is based on subjective judgments by the interviewers at the
various schools.14/
See Decl. of Tom at 3-5, ECF No. 47-1.
The
Ninth Circuit has previously stated that “subjective practices
are particularly susceptible to discriminatory abuse and should
be closely scrutinized.”
See Warren v. City of Carlsbad, 58 F.3d
439, 443 (9th Cir. 1995) (citing Jauregui v. City of Glendale,
852 F.2d 1128, 1136 (9th Cir. 1988)).
Plaintiff presents
evidence that he had obtained ratings of 3 and 4 out of 4 in a
few other DOE interviews.15/
See Plntf.’s CSF Ex. 3 at 78-79, ECF
No. 43-5. Decl. of Farias at 2, ¶ 10, ECF No. 35-11; Plntf.’s CSF
Ex. 13 at 000558, ECF No. 43.
Viewing the evidence in the light
most favorable to Plaintiff, a genuine issue of material fact
exists as to whether Defendant legitimately denied Plaintiff a
teaching position based on his interview responses.
14/
The Court also notes that the principals’ qualifications
for the teaching positions are not all uniform - one principal
listed that a kindergarten teacher position requires a four-year
college degree specifically in education. See Plntf.’s CSF Ex. 5
at 000367, ECF No. 43-7, Ex. 15 at 000326, ECF No. 43-17. At the
hearing, Defendant’s counsel indicated that the four-year college
degree need not be an education degree.
15/
The evidence that Plaintiff sought assistance regarding
his interview skills at best indicates that the quality of his
interview responses is a disputed issue of fact. Def.’s CSF Ex.
A at 000026-28, ECF No. 35-15. Such evidence appears to show
that Plaintiff was motivated to improve his interview skills.
Additionally, there is evidence in the record that Plaintiff had
scored in the 3-4 range in other interviews. Plntf.’s CSF Ex. 3
at 78-79, ECF No. 43-5; Decl. of Farias at 2, ¶ 10, ECF No. 3511; Plntf.’s CSF Ex. 13 at 000558, ECF No. 43.
-36-
Plaintiff also argues that, for the fifth grade
position at Pa#auilo Elementary and Intermediate School,
Plaintiff’s female classmate who had not passed her PRAXIS exam
was hired instead of Plaintiff, who had passed his PRAXIS exam.
Plntf.’s CSF Ex. 3 at 136-137, 141, ECF No. 43-5.
Such evidence
is probative on the issue of whether Defendant’s stated reasons
are pretextual because a member outside of Plaintiff’s class was
hired despite Plaintiff’s arguably higher qualifications.
Warren
v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995) (plaintiff
survived defendant’s motion for summary judgment by presenting
evidence that members outside of his protected class were hired
despite being ranked lower than plaintiff).
While this incident
occurred in July of 2007; as mentioned above, past discrete acts
may be used as evidence of pretext.
22.
See supra Section I at 20-
Thus, the Court concludes that Plaintiff presents sufficient
evidence demonstrating that a genuine issue of material fact
exists regarding the ultimate issue of pretext.
Defendant argues that the ratio of female to male
teachers hired by the DOE in the positions contested by Plaintiff
indicates that there is no pretext.
35-3.
Def.’s MSJ at 30, ECF No.
Additionally, Defendant argues that the principals who
interviewed Plaintiff were “split evenly among gender lines.”
Def.’s MSJ at 31, ECF No. 35-3.
However, as the Ninth Circuit
noted in Lam, the Court should not evaluate each characteristic
-37-
separately, i.e. examining race alone or sex alone, but the Court
must consider whether Plaintiff was discriminated against on the
basis of being both Caucasian and male.
See Lam, 40 F.3d at 1562
(noting that “Asian women are subject to a set of stereotypes and
assumptions shared neither by Asian men nor by white women”).
Defendant’s evidence regarding the female to male ratio does not
address Plaintiff’s particular class of being both Caucasian and
male.
The Court also notes that, at best, Defendant’s evidence
of male teachers and principals within the DOE demonstrates that
the issue of pretext is a disputed issue of material fact.
C.f.
Lam, 40 F.3d at 1561 (holding that favorable treatment of people
in plaintiff’s protected class “creates at most a genuine dispute
as to a material factual question”).
Accordingly, the Court
declines to grant summary judgment on the basis of these
arguments.
2. Whether Plaintiff Presents Specific and Substantial
Evidence Showing an Inference of Discrimination
Regarding the August 4, 2008 Kindergarten Teaching
Position
On August 4, 2008, Plaintiff once again interviewed for
the position of kindergarten teacher.
000152, ECF No. 43.
Plntf.’s CSF Ex. 6 at
However, he was not hired for the position.
Id. at 000154.
-38-
a. Whether Plaintiff Presents a Prima Facie Case
of Discrimination
Plaintiff and the DOE’s analysis regarding the prima
facie case for this claim is identical to the prima facie
analysis for the June 26, 2008 hiring action discussed above.
See Section III.A.1.a., supra at 28-31.
The DOE admits that
Plaintiff meets the first three elements; regarding the fourth
element, there is evidence in the record that the DOE examined
other candidates and selected a Japanese female instead of
Plaintiff to fill the position.
Plntf.’s CSF Ex. 6 at 000154.
For the reasons discussed above, Plaintiff meets the fourth
element by raising a genuine issue of material fact that his
qualifications are comparable to those of the selectee and that
he is similarly situated.
31.
See Section III.A.1.a., supra at 28-
Accordingly, Plaintiff meets his burden of establishing a
prima facie case.
b. Whether the DOE Articulates a Legitimate,
Nondiscriminatory Reason for Declining to Hire
Plaintiff for the Kindergarten Teaching Position
The DOE once again sets forth as its legitimate,
nondiscriminatory reason that Plaintiff was not the most
qualified candidate for the position.
17, ECF No. 35-8.
Decl. Of Romero at 4, ¶
The selectee for the kindergarten position
scored an overall rating of 3 out of 4, which was higher than
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Plaintiff’s rating of 2 out of 4.
Def.’s MSJ Reply at 10, ECF
No. 44, Decl. of Romero at 3, ¶ 12 & 14, ECF No. 35-8.
Additionally, the selectee “had specific knowledge of the school
and specific plans for dealing with parent and student problems,
and awareness of assessment data (formative and summative) used
to create lessons.”
Decl. of Romero at 3, ¶ 14, ECF No. 35-8;
Plntf.’s CSF Ex. 6 at 000154, ECF No. 43.
As discussed above, Principal Romero states that
Plaintiff answered the interview questions with generalizations
and gave vague responses.
8.
Decl. of Romero at 3, ¶ 8, ECF No. 35-
He allegedly did not provide specific strategies for lesson
design and solving non-academic problems.
000154, ECF No. 43.
Plntf.’s CSF Ex. 6 at
Additionally, Principal Romero contacted
Plaintiff’s former supervisor, Principal Uchimura at Ho#okena
Elementary School, to inquire about Plaintiff’s work quality.
Plntf.’s CSF Ex. 6 at 000154, ECF No. 43.
According to Romero,
Principal Uchimura stated that Plaintiff “needs to watch what he
says to parents,” he “might be better if he had more structure,”
and he “had a lot of help from America’s Choice coach.”16/
16/
Id at
The Court observes that the statements made by Uchimura
are not hearsay because the statements are used to determine the
information Romero received and her motivations for failing to
hire Plaintiff. See Fed. R. Evid. 801(c). The statements are
not used to “prove the truth of the matter asserted,” i.e.
whether Plaintiff actually had a lot of help from an America’s
Choice coach, or whether Plaintiff actually made inappropriate
statements to parents. See id.
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000153.
Furthermore, Uchimura indicated to Romero that she would
“rehire him only if she was “desperate”.”
Id.
Romero states
that the review she received from Uchimura was one of the reasons
she declined to hire Plaintiff.
Id.
Based on the above reasons,
the Court concludes that Defendant meets its burden to present a
legitimate, nondiscriminatory reason to rebut Plaintiff’s claim.
See Bergene, 272 F.3d at 1143.
c.
Whether Plaintiff Presents Specific and
Substantial Evidence of Pretext
Because the DOE’s legitimate reasons for the August 4,
2008 discrete act are similar to the DOE’s reasons for the June
26, 2008 discrete act, the Court’s analysis regarding Plaintiff’s
evidence of pretext applies with equal force here.
See Section
III.A.1.c., supra at 33-38.
In addition to the pretext analysis for June 26, 2008
discrete act, Plaintiff argues that there is additional conduct
by Romero that provides further evidence of pretext regarding the
August 4, 2008 hiring decision.
After the September 2006
interview, Plaintiff asked to meet with Principal Romero to
discuss how he could improve his interview skills.
Ex. 3 at 62, ECF No. 43.
Plntf.’s CSF
At some point in the conversation,
Romero told Plaintiff “I would never hire you as a kindergarten
teacher anyhow . . . [b]ecause you don’t have the knowledge of
the developmental issues with children that young.”
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Id.
Plaintiff identifies this statement as evidence of
pretext because when he subsequently interviewed for a
kindergarten position on August 4, 2008, he had acquired some
experience teaching kindergarten during his LTA.
Plntf.’s CSF
Ex. 2, ECF No. 43; Def.’s CSF Ex. A at 14-15, ECF No. 35.
Despite his teaching experience, Plaintiff was not hired for the
position.
Plntf.’s CSF Ex. 6 at 000154, ECF No. 43.
The
Japanese female hired on August 4, 2008 did not have any
kindergarten teaching experience, which appears to be contrary to
Romero’s representations that such experience is required for the
position.
Plntf.’s CSF Ex. 6 at 000154, ECF No. 43.
As
mentioned above, Plaintiff may provide evidence of pretext by
showing that the employer’s proffered explanation is internally
inconsistent.
Chuang, 225 F.3d at 1127.
Because a fact finder
could possibly find that the DOE’s explanations for rejecting
Plaintiff are internally inconsistent, Plaintiff raises an
genuine issue of material fact.
Additionally, Plaintiff argues that he presents
sufficient evidence of pretext because he was not hired despite
the fact that he was the only applicant on the first PRO list
submitted for the kindergarten position.
No. 42.
Plntf.’s Opp. at 8, ECF
Defendant argues that Plaintiff had only scored a rating
of 2 in the interview, and Principal Romero only considers
teacher applicants who receive a rating of 3 or 4 out of 4
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“because it ensures hiring a quality teacher.”
at 4, ¶ 15, ECF No. 35-8.
Decl. of Romero
However, Principal Romero appears to
be imposing a higher standard than the criteria listed in the
interview scale.
The Court observes that, according to the
rating scale criteria, a rating of “2" indicates that Plaintiff’s
KSAs “are applicable in meeting most of the job requirements,
including some of the more difficult expectations.”
at 3, ¶ 10, ECF No. 47-1.
Decl. of Tom
The issue of whether Principal
Romero’s higher standard is a pretext for discrimination should
be determined by a trier of fact; accordingly, the Court denies
Defendant’s motion for summary judgment.
B. Waiakea Intermediate School
Plaintiff identifies one discrete act at Waiakea that
supposedly establishes race and sex discrimination.
Opp. at 8-10.
Plntf.’s
Plaintiff interviewed for an ELL teaching position
on November 7 and 14 in 2008, but he was not hired.
Plntf.’s CSF
Ex. 2, Ex. 13 at 000558, ECF No. 43.
1. Whether Plaintiff Presents a Prima Facie Case of
Discrimination
Plaintiff and the DOE’s analysis regarding the prima
facie case for this claim is identical to the prima facie
analysis for the Keonepoko June 26, 2008 and August 4, 2008
hiring actions discussed above.
See Section III.A.1.a., supra at
28-31; Section III.A.2.a at 39.
The DOE admits that Plaintiff
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meets the first three elements.
Def.’s MSJ at 25, ECF No. 35;
Decl. of Hill at 4, ¶ 22, ECF No. 44-1.
Regarding the fourth
element, there is evidence in the record that the DOE examined
other candidates and selected a Caucasian female instead of
Plaintiff to fill the position.
Plntf.’s CSF Ex. 13 at 000559.
For the reasons discussed above, Plaintiff meets the fourth
element by raising a genuine issue of material fact that his
qualifications are comparable to those of the selectee and that
he is similarly situated.
31.
See Section III.A.1.a., supra at 28-
Accordingly, Plaintiff meets his burden of establishing a
prima facie case.
2. Whether the DOE Articulates a Legitimate,
Nondiscriminatory Reason for Declining to Hire
Plaintiff for the ELL Teaching Position
Principal Matsunami provides the following reasons for
denying Plaintiff the ELL teaching position:
1) Plaintiff is not
a certificated ELL teacher, (2) Plaintiff did not have knowledge
of the basic categorization of second language learners as
illustrated by his statement “I don’t know the term N.E.P.” (NonEnglish Proficient), and (3) Plaintiff was unclear regarding his
knowledge of how to teach reading to ELL students.
Ex. 13 at 000559, ECF No. 43.
Plntf.’s CSF
Additionally, Vice Principal Hill
states that Plaintiff did not perform well in the interview
because he did not stay on topic or cease talking when given cues
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to stop.
Decl. of Hill at 3, ¶ 12, ECF No. 44-1.
Furthermore,
Mr. Hill states that Plaintiff did not have experience teaching
middle school and that he had “limited knowledge of Hawaii
Content and Performance Standards.”
Id.
The Court concludes
that Defendant has met its burden of production to set forth a
legitimate, nondiscriminatory reason for declining to hire
Plaintiff.
See Burdine, 450 U.S. at 255-56.
3. Whether Plaintiff Presents Specific and Substantial
Evidence of Pretext
Plaintiff argues that there is a material issue of fact
because Plaintiff participated in multiple interviews for the ELL
position.
Plntf.’s Opp. at 8-9.
For the first round of
interviews, two of the interviewers gave Plaintiff a rating of 4
out of 4.
Plntf.’s CSF Ex. 13 at 000558.
Despite this favorable
rating, Vice Principal Hill required Plaintiff to participate in
a second interview with a panel composed of Principal Matsunami
and Vice Principal Hill.
Decl. of Matsunami at 2, ¶¶ 7-8.
In
the subsequent interview, Principal Matsunami rated Plaintiff a 1
out of 4, and Vice Principal Hill rated Plaintiff a 2 out of 4.
Id. at 3, ¶ 9.
For the purposes of summary judgment, the Court
views the facts in the light most favorable to Plaintiff and
assumes that Plaintiff’s first interview scores were an accurate
rating of Plaintiff’s skills.
Accordingly, Vice Principal Hill’s
decision to vacate Plaintiff’s first rating and to require a
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second interview raises a genuine issue of material fact that
Plaintiff’s supposed deficit in his interviewing skills was not
the reason the DOE declined to hire him.
Plaintiff also argues that Principal Matsunami’s stated
preference of a teacher with an ELL certificate is pretextual
because Plaintiff’s lack of ELL certification was not an issue
during the first interview.
Plntf.’s Opp. at 9, ECF No. 42.
Plaintiff also argues that an ELL certificate is not required in
order to obtain the job, and there are ELL teachers in the DOE
who do not have an ELL certificate.
ECF No. 35-15.
Def.’s CSF Ex. A at 000036,
Because Plaintiff presents evidence contesting
Defendant’s legitimate reason in addition to evidence that he had
interviewed well, the Court concludes that Plaintiff raises a
genuine issue of material fact regarding pretext.
Plaintiff also applies his evidence of pretext
regarding his interview skills and qualifications to the Waiakea
job position.
See Section III.A.1.c., supra at 33-38.
Accordingly, for the reasons stated above, the Court concludes
that Plaintiff’s evidence as discussed in Section III.A.1.c.
provides additional support that Plaintiff raises a genuine issue
of material fact to defeat Defendant’s MSJ as to the November
2008 ELL teacher position.
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C. Whether this Court Should Grant Defendant’s MSJ Regarding
Alleged Discrete Acts of Discrimination Occurring at Other
Schools After April 10, 2008
The Court notes that Plaintiff briefly refers to the
following list of discrete acts in his Concise Statement of Facts
but does not otherwise discuss these acts in his Opposition:17/
(1) Plaintiff’s interview on September 4, 2008 for the
position of second grade teacher at Chiefess Kapiolani
School (Plntf.’s CSF at 4, ¶ 11);
(2) Plaintiff’s interview on July 7, 2008 for the position
of fifth grade teacher at Kea’au Elementary School (Plntf.’s
CSF at 3, ¶ 10, ECF No. 43);
(3) Plaintiff’s interview on June 17, 2008 for the position
of kindergarten teacher at Na’alehu Elementary School
(Plntf.’s CSF at 2, ¶ 6);
(4) Plaintiff’s interview on July 2, 2008 for the position
of second or fifth grade teacher at Waiakea Elementary
School (Plntf.’s CSF at 3, ¶ 9);
(5) Plaintiff’s interviews on June 30, 2008 for the position
of first grade teacher and October 21, 2008 for the position
17/
Both parties agree that (1) Plaintiff interviewed at
Honoka’a Elementary on December 8, 2008 for the position of
fourth grade teacher and (2) Plaintiff would have been hired
except for a Hawaii Labor Relations Board order that mandated
that the prior teacher be returned to the fourth grade position.
Def.’s CSF at 5, ¶ 13, ECF No. 36; Plntf.’s CSF at 2 (Plaintiff
agrees with Defendant’s ¶ 13).
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of third grade teacher at Waiakea Waena Elementary School
(Plntf.’s CSF at 3, ¶ 8, ECF No. 43).
For the above discrete acts, Plaintiff has not met his
burden under Rule 56 to demonstrate that a genuine issue of
material fact exists regarding race and sex discrimination for
the acts listed above.
Plaintiff’s brief descriptions of these
interviews in his statement of facts does not demonstrate how the
DOE’s actions discriminated against Plaintiff on the basis of his
race and sex.
Nor does Plaintiff provide specific and
substantial evidence to show that Defendant’s legitimate
nondiscriminatory reasons are pretextual.
ECF No. 35-3.
See Def.’s MSJ at 28,
Accordingly, the Court GRANTS Defendant’s MSJ for
the discrete acts occurring at Chiefess Kapiolani School, Kea’au
Elementary School, Na’alehu Elementary School, Waiakea Elementary
School, and Waiakea Waena Elementary School.
CONCLUSION
For the foregoing reasons, the Court
(1) GRANTS Defendant’s Motion for Summary Judgment as
to Plaintiff’s Title VII claims based on discrete acts prior to
April 10, 2008,
(2) DENIES Defendant’s Motion for Summary Judgment as
to Plaintiff’s Title VII claims based on the following discrete
acts:
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(a) Defendant’s failure to hire Plaintiff after his
June 26, 2008 interview for the fourth grade teacher
position at Keonepoko Elementary School,
(b) Defendant’s failure to hire Plaintiff after his
August 4, 2008 interview for the kindergarten teacher
position at Keonepoko Elementary School, and
(c) Defendant’s failure to hire Plaintiff after his
November 2008 interviews for the ELL teacher position
at Waiakea Intermediate School, and
(3) GRANTS Defendant’s Motion for Summary Judgment as
to the following discrete acts because Plaintiff failed to
produce any evidence to meet his burden of raising a genuine
issue of material fact as required by Rule 56:
(a) Defendant’s failure to hire Plaintiff after his
interview on September 4, 2008 for the position of
second grade teacher at Chiefess Kapiolani School
(Plntf.’s CSF at 4, ¶ 11);
(b) Defendant’s failure to hire Plaintiff after his
interview on July 7, 2008 for the position of fifth
grade teacher at Kea’au Elementary School (Plntf.’s CSF
at 3, ¶ 10, ECF No. 43);
(c) Defendant’s failure to hire Plaintiff after his
interview on June 17, 2008 for the position of
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kindergarten teacher at Na’alehu Elementary School
(Plntf.’s CSF at 2, ¶ 6);
(d) Defendant’s failure to hire Plaintiff after his
interview on July 2, 2008 for the position of second or
fifth grade teacher at Waiakea Elementary School
(Plntf.’s CSF at 3, ¶ 9);
(e) Defendant’s failure to hire Plaintiff after his
interviews on June 30, 2008 for the position of first
grade teacher and October 21, 2008 for the position of
third grade teacher at Waiakea Waena Elementary School
(Plntf.’s CSF at 3, ¶ 8, ECF No. 43).
IT IS SO ORDERED.
DATED:
Honolulu, Hawai#i, July 2, 2013.
________________________________
Alan C. Kay
Sr. United States District Judge
Johnson v. Dep’t of Educ., State of Hawai#i, Civ. No. 11-00704 ACK-RLP: ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT.
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