Brown v. Unified School District #501
Filing
79
MEMORANDUM AND ORDER granting 63 defendant's Motion for Summary Judgment. Signed by District Judge J. Thomas Marten on 6/2/2011. (mss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK E. BROWN ,
Plaintiff,
vs.
Case No. 10-1096-JTM
UNIFIED SCHOOL DISTRICT NO . 501,
SHAWNEE COUNTY, STATE OF KANSAS,
Defendants.
MEMORANDUM AND ORDER
This is an action for employment discrimination by Mark E. Brown against the
Unified School District No. 501, which serves Shawnee County, Kansas. Brown, who is
black, was previously employed by the District until 1996, when he voluntarily resigned.
He contends the District racially discriminated against him and engaged in illegal
retaliation when it refused to rehire him in 2009. Brown previously has instituted two
unsuccessful lawsuits against the District. The District contends that the present action
reflects a long-standing decision that Brown is not eligible for rehire because of his
employment history, and has moved for summary judgment.
Summary judgment is proper where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show there is no
genuine issue as to any material fact, and that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the
court must examine all evidence in a light most favorable to the opposing party. McKenzie
v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary
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judgment must demonstrate its entitlement to summary judgment beyond a reasonable
doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party
need not disprove plaintiff’s claim; it need only establish that the factual allegations have
no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323
(10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon
mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving
party must come forward with specific facts showing the presence of a genuine issue of
material fact for trial and significant probative evidence supporting the allegation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried
its burden under Rule 56(c), the party opposing summary judgment must do more than
simply show there is some metaphysical doubt as to the material facts. “In the language
of the Rule, the nonmoving party must come forward with ‘specific facts showing that
there is a genuine issue for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the
principal purposes of the summary judgment rule is to isolate and dispose of factually
unsupported claims or defenses, and the rule should be interpreted in a way that allows
it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
The following findings of fact exclude requested findings, or attempts to place facts
in controversy, which are not premised on admissible evidence, or where the cited evidence
fails to support the requested finding.
Findings of Fact
Between about 1980 and 1996, Brown was employed by District 501 as a physical
education teacher and, for parts of that period, as a coach.
2
Brown was previously employed as a physical education instructor by the Junction
City, Kansas school district, which decided not to renew his contract. His personnel file
with District 501 contains a January, 1982 reference from the Junction City school district
rating him below average in 12 of 17 categories, and stating that it would not employ him
again at that time. Brown considers that reference a negative document in his personnel
file.
The file also contains a February 5, 1985 evaluation of his teaching physical
education, reflecting concerns about his professionalism in dealing with one staff member
and at least one set of parents, and stating there were concerns about inappropriate
comments to students. Brown agrees that is a negative document.
In 1989, Brown coached girls junior varsity basketball at Topeka High School. One
of the student’s parents complained about comments she said that plaintiff made to K.R.,
her daughter, prompting an investigation by the District.
K.R., a freshman, told the investigator that Brown suggested breaking up with her
boyfriend, having a candlelight dinner with him and “doing the wild thing.” B.G., another
freshman student, stated that she heard Brown ask K.R. to “do the wild thing.” (Brown
dep. exh. 13, at 3, 5). Brown understands “doing the wild thing” means sexual intercourse.
Two other students on the basketball team reported to Principal Nusbaum that Brown
often used the expression “stop dickin’ around” to the girls.
Brown agrees that if a school district had an indication a teacher propositioned or
asked out a student, that would be a reason to not want to hire that person. He also agrees
that it is highly inappropriate to say “stop dickin’ around” to high school girls.
As a result of the investigation prompted by the complaints about Brown’s
statements to the basketball players, the District removed Brown as girls basketball coach.
Brown agrees that being removed from a coaching position after student complaints is a
negative part of one’s record.
3
Brown’s personnel file contains the memo of this investigation. He acknowledges
that the memo reflecting sexually harassing remarks is a very negative part of his record,
and that if someone were just to review that document it would give them reason to
question his suitability to be coaching girls basketball.
After Brown was removed from that coaching job, the District gave him a second
chance by assigning him as the assistant boys basketball coach at Topeka High School.
Brown was terminated as assistant boys basketball coach in 1989 for being absent
and failing to perform some responsibilities or duties.
In 1991, Brown sued defendant, claiming race discrimination and retaliation under
Title VII and Section 1981.
In his 2010 deposition, Brown unequivocally stated that no one in the District had
ever personally criticized him for filing the 1991 lawsuit. In his Response, Brown references
testimony from his 1994 deposition, in which he alleged that the Topeka High Principal,
Dick Patterson, had told him that if he was asked for a reference about Brown, he would
state that Brown should not be hired and that he was a person who had threatened to sue
the District. Patterson left the District in 1994, and played no role in the decisions of Drs.
McFrazier and Singer to subsequently refuse to rehire Brown.
In 1992, the jury and the Hon. Judge Richard Rogers ruled for defendant and against
Brown. Brown appealed unsuccessfully, and attorneys’ fees were awarded against him and
his attorney. Judge Rogers ruled that the transfer from girls basketball coach to boys
basketball coach had nothing to do with Brown’s race or his having filed discrimination
complaints.
Judge Rogers further ruled that Brown’s discharge from the boys basketball position
was because he failed to attend practices and games and failed to participate actively when
he did attend, and that the discharge was not motivated by Brown’s race or filing
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discrimination complaints. Brown specifically agreed during his recent deposition that
Judge Rogers was correct in those conclusions.
Judge Rogers issued a finding in 1992 that there was a thorough investigation of the
complaints that Brown told a female student that she should dump her boyfriend, be
treated to a candlelight dinner by Brown and “do the wild thing,” and that Principal
Nusbaum was convinced that Brown had made that statement. Although Brown claims he
did not make those remarks, he admits that Dr. Nusbaum believes that he made those
remarks.
Brown’s personnel file includes a 1989 verbal reprimand for insubordination, for
failure to completely follow instructions. Brown regards that reprimand as discipline and
also as a negative part of his personnel file.
In 1990, Principal Abigail Calkin’s evaluation of Brown noted that his professional
skills need improvement, that his communication with groups and individuals was poor,
that he is not self-motivated and that he relates to people very poorly.
Principal Barbara Davis, who is African-American, stated in an attachment to that
evaluation that in her 27 years of being an administrator, she found Brown’s performance
as a physical education teacher to be less than that of other teachers in the areas of
professional skills, interpersonal relationships, and especially personal characteristics.
If Brown were an administrator choosing between two applicants, one with negative
evaluations such as that one and the other with favorable evaluations, he probably would
hire the one with favorable evaluations.
Brown’s personnel file reflects that in March, 1990, Principal Calkin gave him a
written reprimand, which Brown regards as discipline and as a negative part of his file.
Brown’s file also includes an October 9, 1991 letter from Principal Calkin asking that
Brown be transferred out of her building at Quinton Heights school. She stated that he had
not made changes to lead her to conclude that he can conduct a P.E. program that met
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students’ needs, and added that he showed no initiative to make changes in his behavior.
She also said that for the benefit of the students, the school should have “a new and far
better P.E. teacher.” Brown considers this letter a negative part of his personnel file with
defendant.
Promptly after Dr. Calkin’s letter, the District transferred Brown out of Quinton
Heights.
Dr. Billy Horn and Principal Calkin state in their February, 1992 evaluation that
Brown’s “professional skills [were] marginal at best,” that he needed to improve his
attention to detail, that his interaction with staff was minimal, and that he communicated
when spoken to but very rarely initiated. Brown regards these comments as a negative part
of his personnel file.
In his Complaint, Brown states that defendant refuses to re-employ him due to his
“past history with Topeka Public Schools.” Brown testified during his deposition that this
“past history” meant his removal as girls coach, his removal as boys coach, his negative
evaluations, his discipline and those negative parts of his record.
In 1996, Brown voluntarily resigned from his employment to move to Texas.
Brown taught special education at Washington High School in Kansas City, Kansas
from 1999 to 2000, when his contract was not renewed. The letter of reference from
Washington’s Dr. Mary Viveros included an evaluation rating Brown unsatisfactory in
three of nine categories, and stating that she would not re-hire Brown as a special education
teacher, although she would recommend him for a different position. Brown regards that
as a very negative reference concerning his teaching special education. He agrees that a
negative evaluation is a fair thing for a prospective employer to consider.
In 2000, Brown applied for re-employment with District 501 and was interviewed
by Human Resources Director Lynn King, who is African-American.
6
On August 27, 2001, King sent Brown a letter stating that “due to his past
employment record,” he would not be considered for rehire. The letter noted that
Superintendent Robert McFrazier made the decision that Brown would not be rehired. Dr.
McFrazier is African-American.
Brown knew at that time that the District was refusing to rehire him, but he kept
inquiring anyway.
The District’s attorney, Joe Zima, wrote a November 8, 2001 letter to the Phelps Law
Firm, which then represented Brown. The letter referenced Brown’s “poor teaching skills
and an inability to follow directions.” Brown saw Zima’s letter at about the time Phelps
received it, and it was clear to him that the District was saying that it was not going to hire
him.
Although Brown continued to send additional letters asking King questions, King
never said anything to Brown inconsistent with the August 27, 2001 letter. Rather, she
reiterated the District’s refusal to rehire Brown in letters on September 16, 2002, January
13, 2003 and May 23, 2003, again noting that Superintendent McFrazier has stated Brown
was not being considered for re-employment. Brown agrees that King made clear in these
letters that he would not be considered for the position at Highland Park High School or
any other position in the Topeka Public Schools. After receiving those letters, it was clear
in his mind that the District’s decision was that it would not rehire him, and King has never
said anything inconsistent with that.
Brown agrees that, if the District did not want to hire him because it thought he had
not been a good employee in the past, that would not be discrimination.
In 2004, Brown filled in for a special education teacher on maternity leave at
Marshall-Nemaha County Educational Services. The Director of Special Education later
sent an October 19, 2004 letter regarding Brown’s service, stating that he had “performed
the minimum of what he was asked to do,” and that all three paraprofessionals expressed
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concerns about his lack of teaching, interaction and communication. (Brown Dep. Exh. 30).
Brown does not controvert that the letter contains these statements, but states that the
Director did not also make these negative comments when they spoke in person.
In 2004, Brown filed his second lawsuit against the District, Case No. 04-1193-DWB,
claiming it refused to rehire him based on race and color discrimination and on retaliation.
His Complaint contained almost the same allegations as in the current suit.
On September 1, 2005, the Hon. Donald Bostwick granted the District’s summary
judgment motion. He held that the suit was untimely, based on Ms. King’s August 27, 2001
letter which stated the District would not rehire Brown, and the fact that Brown
understood this. Thus, he ruled, the statute of limitations clock started on that date, and it
did not re-start when the District sent subsequent letters re-stating its same basic position.
The Tenth Circuit Court of Appeals affirmed this decision. 465 F.3d 1184 (10th Cir. 2006).
Brown was employed by St. Xavier’s School District from 2006-2009, and St. Xavier
informed him in April, 2009 that he was being non-renewed.
According to Brown’s Complaint, the only position which the District prevented him
from obtaining by discrimination or retaliation is the Highland Park High School head girls
basketball coach. In his Response, Brown acknowledges that the Complaint does indeed
only mention that position, but seeks to partially controvert this fact by citing his recent
affidavit, showing that he “understood that this application would logically be considered
for both a head coach and assistant coach position.” (Dkt. 69, at 6, ¶ 45K). But the plaintiff
has failed to show, as a factual matter, that it was District policy, where an application was
made for a specific employment position, to consider applicants for other positions as well.
More importantly, both the Complaint and the Pretrial Order frame the issues in the
present action. As in the Complaint, the Pretrial Order stipulates that the only coaching job
denied plaintiff through discrimination or retaliation was the Highland Park head girls
basketball coach. (Dkt. 62, § 4(a)(vii)).
8
At 9:50 p.m. on June 30, 2009, Brown spoke with Highland Park Principal Dale
Cushinberry while he and Cushinberry were at the YMCA. The parties dispute, and the
evidence is unclear, whether this discussion occurred in the whirlpool or the locker room.
Brown claims that Cushinberry told him “I would hire you in a minute.” (Brown dep. at
91). He stated in his deposition that Cushinberry was talking about the position of assistant
girls basketball coach, since the head coaching job was already filled. Brown never applied
for the position of assistant girls basketball coach.
After talking with Cushinberry, Brown submitted job applications to the District’s
Human Resources Department, because he knew that the only way to be hired by the
District is to submit a formal application through the Human Resources Department.
In his Response, Brown now argues that the District sometimes hired people outside
of Human Resources. Brown makes no attempt to reconcile this contention with the
repeated and unambiguous statements during his deposition that formal application was
a District Requirement. (Brown Dep. at 88). Counsel for the District inquired, “Why did
you go to the trouble of filling out formal job applications?” Brown responded, “Well, I had
to do an application.” Later, counsel observed, “Sure, because you can’t get hired for a job
in the School District unless you submit a formal job application, can you?” Brown,
responded “Yeah. That’s why I did an application.” This was repeated a third time:
“That’s the only way to get hired by 501, isn’t it, to submit it through the Human Resource
Department?,” Brown replied, “Oh, yes. Yes.” Further, Brown has also acknowledged in
his deposition that he knew that hiring is done by the District’s Human Resources
Department, and not by Cushinberry. He has no evidence that Cushinberry had hiring
authority or ever in fact hired anyone.
Brown also knew that while a principal might recommend someone for hiring,
Human Resources can either accept or reject that recommendation. Every time he had
applied for a job with the District, he submitted a formal job application.
9
Brown formally applied to be the girls head basketball coach job at Highland Park
High School on July 1, 2009. He applied for that job in case the then-current coach, Bill
Baird, did not stay. He never applied for an assistant girls basketball coaching job at
Highland Park High School. (Brown dep., p. 136,11.5-14).
Brown agrees that in considering his application for coaching jobs, it is reasonable
for the District to consider how he did the last time he coached basketball for the District.
On September 21, 2009, Brown applied with the District to be a substitute teacher,
even though no one at the District administrative office had told Brown that the earlier
decision of Dr. McFrazier against ever rehiring Brown had been changed.
Daneva Coker, a District employee, invited Brown to meet with the District’s
Substitute Coordinator. However, Brown never went to meet with the Substitute
Coordinator, because he was already substitute teaching in the Shawnee Heights School
District. He knew that by not going to see her, he was not going to be hired by the District
as a substitute teacher.
Brown now attempts to controvert this fact by citing his additional affidavit that he
could not meet with the Substitute Coordinator because of his schedule as a substitute. But
this directly contradicts his earlier deposition testimony that unequivocally stated that he
did not attend the meeting because he already had a substitute teaching position, and that
he knew that failing to attend the meeting would cause the District to refuse approving his
application. (Brown dep. at 105, 107). Brown offers no justification for his attempt to
directly contradict his prior sworn testimony.
The same day that he applied to District 501 to be a substitute teacher, Brown also
submitted a formal application to be a special education teacher. The District had two
available special education positions, but one of these was already filled by Cary Sauro, a
qualified applicant. Brown agrees that if one applies for a special education job, it is
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reasonable for the prospective employer to consider a prior reference about how the
applicant did as a special education teacher.
Brown has testified that he was not hired “because of the lawsuits that I have”
against the District. Asked in his deposition why he believed this, he alleged the District
had used the “documented summary” — the investigation summary concerning the
remarks to the female students — as a basis for its decision against hiring him.
On September 10, 2,009, Brown and his attorney Larry Michel met with the District’s
superintendent Dr. Kevin Singer, School District Attorney Cindy Kelly, and Board member
Janel Johnson. Brown has testified that, going into the meeting, he had decided that he
would either be hired or that he would file a lawsuit; the on1y way the District could have
avoided a lawsuit would have been to hire him.
Brown has testified that his reference to race and color in his claims mean the same
thing.
Brown’s belief that he was discriminated against due to race or color is based on
three reasons: (1) during the 1991 investigation of the comments Brown made to the girls
basketball players, it is his belief that then-Principal Dr. Ned Nusbaum wanted to hire Lori
Roenbaugh, a white basketball coach, to replace Brown, (2) the District’s discovery
responses indicating that all six substitute teachers hired to teach special education were
white; and (3) that the District entered into a favorable settlement with, and continued to
employ Charles Nadeau, a white employee complaining of reverse discrimination.
In the first action brought by Brown against the District, Case No. 91-4011-R, Judge
Rogers concluded that Brown was replaced as the primary girls assistant basketball coach
by Roenbaugh, but that the reasons for Brown’s removal from the girls basketball program
“had nothing to do with Brown’s race,” and that the District had demonstrated legitimate,
nondiscriminatory, non-retaliatory reasons for its actions. Brown v. Unified Sch. Dist. No.
501, 1994 WL 478742 (D. Kan. 1994)).
11
Brown does not know if any African-Americans other than he even applied to be
substitute teachers for special education. (Brown dep., p. 183,11.3-10).
Nadeau filed an EEOC Charge against the District, claiming he was treated
unequally compared to African-American co-workers. The District entered into a
compromise settlement of that claim on December 15, 2009. It is uncontroverted that
Nadeau had never received negative performance evaluations with the District, and had
not had any student or parental complaints of making harassing comments to students.
Nadeau was supervised by Mark Wanamaker, Director of Campus Police and Ron Brown,
Director of School Safety. Nadeau is the only non-black whom Brown claims was treated
differently from or better than he was.
No one has ever told Brown that the District was not re-hiring him because he is
African-American. Nor has anyone in the District’s organization ever made racial slurs to
Brown.
Asked during his deposition to identify all individuals employed by or acting on
behalf of the District who committed discrimination or retaliation, Brown identified only
Board member Ned Nusbaum and the District’s attorney Dave Mudrick, and cites
comments made by them during Board executive sessions on September 17 and October
1, 2009. This answer matches the plaintiff’s Response to Defendant’s Interrogatory 21,
which only identifies Nusbaum and Mudrick as agents demonstrating retaliatory or
discriminatory intent.
Brown states that during the September 17 session, Nusbaum stated that “all Mark
wanted to do is sue us. He’s sued us three times already.”
In his deposition, Brown was asked about the basis for his retaliation claim, and why
the District’s decision did not simply reflect the negative information in his personnel file.
Brown responded that it was “just my belief” that the District engaged in retaliation.
12
Asked if he had “anything backing up that belief other than the fact that you believe it?,”
Brown responded “No. No, I don’t. No.” (Brown dep. at 7-16).
Neither Dr. Nusbaum, Mr. Mudrick, nor the School Board made the decision not to
reverse the October 27, 2001 decision not to re-hire the Brown. Instead, the decision not to
reverse that decision was made by the District’s Superintendent, Dr. Singer. Dr. Singer
based that on his review of Brown’s personnel file, including the various negative
evaluations and the complaints about Brown’s purported comments to the girls basketball
players. Dr. Singer did not base his decision on or even take into account Brown’s race or
color or the fact that Brown had filed previous claims and lawsuits against the District.
Brown’s attorney drafted Brown’s EEOC Charge and submitted it on October 12,
2009. The EEOC Charge made no mention Dr. Nusbaum’s and Mr. Mudrick’s purported
comments, and Brown never said anything to the EEOC about those comments. To
Brown’s knowledge, the EEOC never investigated those alleged comments. All Brown
submitted to the EEOC about Dr. Nusbaum’s alleged retaliation was the “documented
summary” as to the 1991 sexual harassment investigation. Nor did he claim to the EEOC
that Mr. Mudrick somehow discriminated against him.
Brown never filed a complaint against the District with the Attorney General of the
United States.
Brown’s claimed damages include $35,086 for cashing in his KPERS retirement fund
to pay for child support, living expenses and mortgage expenses. He claims that he
sustained these damages because the District did not re-hire him, although he would not
have had to cash in that fund if his prior employer, St. Xavier’s, had not non-renewed his
contract.
Brown claims emotional distress damages in the amount of $110,000 for humiliation
and embarrassment. Asked to explain these damages, Brown responded in his deposition
that “I would just have to say that the whole thing is just frustrating.” (Brown dep. at 219).
13
Asked about the embarrassment or humiliation, Brown cited newspaper articles from 1991
and 1992 relating to the sexual harassment investigation.
Brown has not lost any sleep or cried over the incidents involved in this case. He
never told his family physician about being distressed, upset or depressed and has never
told any physician, psychiatrist or psychologist that he had stress or anxiety. He has not
sought professional counseling or help for his frustration. He has never used any
medication for the alleged emotional, mental or other injuries claimed in this lawsuit.
Brown is not embarrassed or humiliated to be around his friends, because none of
them believe the allegation that he made harassing remarks to the female students. Brown
has not changed any of his customary activities such as working out.
Brown seeks $150,000 in punitive damages from the District, a public school district.
Brown brought his claims pursuant to Title VII and 42 U.S.C. § 1981. He did not bring a
claim under 42 U.S.C. § 1983.
In his Response to the Motion for Summary Judgment, Brown cites those portions
of his employment record showing positive evaluations. He also cites positive evaluations
he received while teaching in Manhattan, Kansas in 2002 and 2003.
Brown contends that, when he first heard about the allegations regarding his
comments in 1989, he denied making the comments and did not know what they meant.
He claims that Nusbaum’s report as to the incident is inconsistent with the testimony of the
girl who had advanced the initial complaint, and that his memo is not credible and is
hearsay. But Brown fails to document any substantial inconsistencies. For example, he
notes that K.R. responded “no” when asked if Brown ever asked her “why don’t you drop
your boyfriend and go out with me, I will show you some good plays.” But K.R. only
refused to agree to the question as asked. She proceeded to testify that Brown told her, “I
think you should dump [your boyfriend] and I will show you what a real man is, and I will
take you to my house and fix you a candlelight dinner and then we can do the wild thing.”
14
(Case No. 91-4011 K.R. dep. at 10). The cited inconsistencies do not render K.R.’s testimony
inherently incredible, and it is uncontroverted that Nusbaum believed K.R.’s statements.
Nusbaum’s investigation and report is relevant and admissible because it supplies
information as to what the District believed about Brown’s employment history.
In addition, Brown cites a statement by one of the District’s attorneys during the
1991 case that, if the District really believed that Brown was trying to date students, they
would have fired him. But this fails to demonstrate that the District was not legitimately
concerned about Brown’s comments to female students. The issue was not Brown actually
dating students, but making inappropriate and offensive comments to them. The District
had a justifiable interest in ensuring an educational environment free from such comments.
Brown points out that he was not terminated after Nusbaum’s investigation, and
that his status was changed from Calkin?s 1990 recommended probation to “renew
contract.” The recommendation of probation remained in Brown’s file, however, including
the observation by Dr. Livingston: “I share Dr. Cain’s concern about your evaluation. I
believe that you are capable of following Dr. Calkin’s directions, which seem to me to be
reasonable, and meeting her expectations for improved professional performance... Please
do not consider this to be an indication that your professional performance doesn’t need to be
improved. It does.” (Pl. Exh. S) (emphasis added).
Brown stresses that he never received a “nonrenew” status during his employment
by the District. He notes that in 1992, he received an evaluation which indicated that he “is
doing a good job on his goals.” (Brown dep. exh. 22). His 1992 evaluation, however, also
stated: “Mark’s professional skills are marginal at best. He continues not having students
do warm-up exercises .... Classroom management and control is ... too often poor with the
intermediate classes. Mark needs to improve also on his attention to detail.... Another area
for improvement is following district curriculum.” (Id).
15
Brown also cites testimony from King which he suggests shows that Dr. McFrazier
issued his directive that Brown was not eligible for rehiring without consulting Brown?s
personnel file, that McFrazier falsely stated that he had checked with a reference in Kansas
City, and that McFrazier claimed to be worried about placing the district in a position to
be “held liable” for Brown’s rehire. (No. 04-1193-DWB, McFrazier dep. at 62). But the cited
evidence fails to support these allegations. King testified simply that McFrazier issued his
directive without an additional review of Brown’s file because he was already familiar with
Brown’s history, and thus “he seemed to recall Mark without even having to look at the
file.” (King dep. at 23). No admissible evidence supports the claim as to the Kansas City
reference.
Further, in the cited portion of McFrazier’s deposition from the 2004 case, McFrazier
was not expressing a fear the District might be “held liable” in a suit by Brown, but its
opposite, that of exposing the District to potential suits by prospective students. He testified
that the District could “be held liable for rehire” in light of “all this history,” by which he
specifically referenced Brown’s negative evaluations, including the claims of sexual
harassment. Noting Brown’s history “at Topeka High School and working with these
young ladies [and] those statements,” McFrazier testified that the District erred in not firing
Brown in 1991.
After Brown continued to send letters, King responded on September 4, 2002 by
writing that Brown was not being considered for special education positions, that they had
Brown’s application on file in regard to coaching vacancies, and that she had “not been
notified by the school/s administration that the positions have been filled.” A copy of the
letter was sent to attorney Joe Zima.
King sent another letter to Brown on September 16, 2002, stating that some special
education vacancies were being filled by substitute teachers. The letter also reiterated Dr.
McFrazier’s statement that Brown would not be considered for rehire.
16
On January 13, 2003, King sent Brown a letter which included a bold passage
highlighting the earlier District decision: “Dr. McFrazier indicated that you are not being
considered for re-employment to the district.” (Brown dep. exh. 36). King told Brown to
send any further correspondence to the District’s attorney.
On May 23, 2003, King sent Brown a letter denying him consideration for an open
position in special education at Highland Park High School, and denying him consideration
for any position available in the District. “Please,” she wrote, “re-read the volume of
previous responses to you on the subject of your rehire by the school district.” (Brown dep.
exh. 37).
According to Brown, during the years related to the three years prior to 2004, the
District hired 36 white females, 8 white males, and 1 Hispanic female for special education
positions, but did not hire any certified teachers of blacks. In addition, from August 2002
to May 2004, the District staffed 20 special education vacancies with substitutes, half of
which were white females, six where white males, two were black females, and two were
black males. However, the District correctly notes that the evidence submitted by Brown
as to hiring results is not relevant to the alleged injury here, the refusal to rehire Brown in
2009. More importantly, the evidence of hiring results is meaningless without any
additional information as to how may persons from different races applied for each
position.
Next, Brown argues that, from 1999 to 2002, twelve complaints of racial
discrimination or retaliation were brought against the District. In addition, in the last five
years, eight further claims have been brought against the District. However, the plaintiff’s
evidence is again presented free from any context, in this instance, any information as to
the validity of these claims. The defendant’s evidence indicates that most of these claims
were dismissed or otherwise found to lack merit.
17
Brown contends that the District has employed three other employees who had been
accused of sexual misconduct involving a student. In addition, Brown contends that one
District employee who has kept his job although he had been charged with driving under
the influence.
However, the plaintiff’s evidence fails to offer any indication that the evidence as to
the employee with a DUI is predicated on personal knowledge. In addition, the retention
of an employee charged (but apparently not convicted) of DUI is not relevant to the legality
of the District’s decision not to rehire a former employee who had been disciplined for
sexual harassment. The evidence as to the other employees charged with sexual
misconduct is potentially relevant, but the plaintiff supplies no evidence as to the nature
the charges involved, the results of any investigation, and the potential discipline imposed
by the District. Moreover, the District points out that one of these three employees is black.
Even taken at face value, the plaintiff’s evidence fails to show the existence of any racial
disparity in its treatment of employees accused of harassment.
In his Response, Brown repeatedly cites his private “understanding” of the meaning
of his conversation with Cushinberry. But it remains uncontroverted that Cushinberry’s
comments only related to the position of head coach for girls basketball. As Brown related
in his deposition, “Oh, that’s after Cush told me in the locker room that Bill Baird [who was
then the head coach] may stay; he may not stay. So I went ahead and applied to the head
coaching job.” (Brown dep. at 98-99).
Brown admitted in his deposition that he knew that principals do not have hiring
authority, and that employment requires a formal application. Brown only submitted a
formal application for the position of head coach, a position which by that time had been
filled. The uncontroverted facts establish that Brown knew it was District policy he would
not be rehired, and the comments he cites from various District employees — who do not
have hiring authority — do not alter the existence of that policy.
18
Brown did apply for substitute teaching, but did not attend a scheduled interview.
Although he now, by affidavit, contends that this was due solely to a scheduling conflict,
this directly contradicts, without explanation, his straightforward statement during his
deposition that he decided to not to schedule an interview because he had obtained a
similar position with another school district. Brown was asked, “In other words, then, even
though you applied for a job and they invited you to come in for an interview, you decided
not to take that job, didn’t you?” Brown responded: “I was substituting for Shawnee
Heights, doing the same thing for 501, If I was workin’ for 501 workin’ as a substitute
teacher, I was doin’ the same thing.” (Brown dep. at 106).
In late August 2009, Brown spoke by phone with District board member Janel
Johnson, who suggested they meet with District Superintendent, Dr. Singer. At Johnson’s
request, a meeting was held between plaintiff, his attorney, Johnson, District 501 attorney
Cindy Kelly, and Dr. Singer on September 10, 2009. Brown said at the meeting that he was
not threatening to bring a lawsuit; he merely wanted to go to work. Brown subsequently
acknowledged in his deposition that at the time of the meeting he had resolved to sue the
District if it did not hire him. Dr. Singer said the Board would take the matter up at its next
meeting.
The District Board of Education met on September 17, 2009, and discussed Brown’s
employment status during its executive session.
According to Brown, Johnson told him the next day that the Board had not reached
a decision, and wanted to hear from attorney Dave Mudrick, who had represented the
defendant in the previous lawsuit. Brown also says that Johnson told him that Dr.
Nusbaum (formerly a principal, later superintendent and now school board member) had
said in the session that “all Brown wants to do is sue us. He has sued us three times
already. All Brown wants to do is sue us.” (Brown dep. at 158-59).
19
Even aside from its accuracy (Brown separately acknowledged in his deposition that
he was resolved to sue the District if did not offer him employment), the cited passage is
inadmissible hearsay, and Brown makes no attempt to explain how the evidence might be
admissible evidence.
The Board conducted another executive session discussion on the subject on October
1, 2009. The purpose of this session was to obtain legal advice from Mudrick. In support
of his claims of discrimination and retaliation, Brown contends that Mudrick made
comments which caused the Board not to hire him. But the only evidentiary basis for these
alleged comments is Brown’s own testimony as to what he heard about the Board meeting
through Johnson. (Dkt. 69, at ¶ 64). However, these alleged comments are not simply
inadmissible hearsay. As the Magistrate Judge specifically found, the alleged comments
reflect statements made by counsel in response to a request for legal advice, and are
protected by attorney-client privilege. (Dkt. 59, at 11). Brown made no appeal from this
ruling, and presents no rationale for disregarding it now.
Brown filed his EEOC charge of discrimination on October 15, 2009. Brown was
provided with information which had been submitted to the EEOC by the District, and the
investigator, Kalifah Hatten, offered Brown the chance to respond. Brown supplied a
response, but did not mention the information concerning what Johnson allegedly told him
about Nusbaum or Mudrick’s statements at the executive session meetings.
Brown spoke with Hatten on January 21, 2011, and she told him that she could no
longer speak with him, and that she had already faxed a right-to-sue letter to Brown?s
attorney. Brown received his Notice of Right to Sue on or about January 21, 2010.
Brown alleges that his failure to obtain work at the District made it difficult to
maintain his house payments and pay child support. He cashed out his KPERS retirement
in an effort to save his home from foreclosure. He further states in his affidavit that he is
embarrassed by not having a full-time job, particularly after so many years of teaching
20
experience and his being licensed for a specialty like Special Education, in which there is
a shortage of teachers.
However, during his deposition, Brown indicated at most that he simply felt it was
“frustrating” that he had not obtained a job. His testimony about feeling “embarrassed”
was related to the nearly two-decades old newspaper articles that appeared in relation to
the sexual harassment charges against him in 1991 and 1992. He further testified that he
cashed in his KPERS retirement to pay for “child support, living expenses and mortgage
issue,” and that he would not have had to do so if his prior employer, St. Xavier’s, had not
non-renewed his contract (Brown dep. at 215-16).
Conclusions of Law
Title VII Exhaustion
The District argues that Brown’s Title VII claims are barred because he did not
exhaust his administrative remedies. Specifically, it argues that Brown’s Title VII claims go
beyond the scope of his EEOC charge, since that charge failed to make any mention of the
alleged comments or statements by either Mudrick or Nusbaum. Since Brown
acknowledged in his deposition that these are the only District officers who acted with a
discriminatory or retaliatory animus in connection with his 2009 application, the District
argues, he cannot now seek relief for these actions under Title VII.
The court will deny the District’s motion on the grounds sought. Brown’s EEOC
charge explicitly advances a claim for Title VII relief based upon the District’s refusal to
hire him in 2009. His subsequent citation to the alleged comments of Mudrick and
Nusbaum in connection with the decision not to rehire him are merely evidence in support
of that complaint. As noted above, the court finds that Brown’s evidence of these comments
does not constitute admissible evidence. Nevertheless, the plaintiff was not required to
21
separately mention in the EEOC complaint all of the evidence which he believed would
ultimately support his complaint. The court denies the District’s motion on this ground.
The District also argues that Brown’s Title VII claims are barred by his failure to seek
a right-to-sue letter from the United States Attorney General. Title VII claims against a
governmental entity require such approval. Hiller v. Oklahoma ex rei. Used Motor Vehicle &
Parts Comm ‘n, 327 F.3d 1247, 1250-51 (l0th Cir. 2003) (interpreting 42 U.S.C. § 2000e-5(f)(l)).
This requirement “furthers the goals of the Civil Rights Act as remedial legislation by
bringing the reluctance of governmental agencies to comply with Title VII to the attention
of the Attorney General.” Thames v. Oklahoma Historical Soc y, 646 F. Supp. 13, 16 (W.D.
Okla. 1985), aff’d per curiam, 809 F.2d 699, 700 (l0th Cir. 1987).
The court finds that the failure to obtain prior approval specifically from the
Attorney General is not fatal to Brown’s Title VII claims. While the statute formally
requires approval by the Attorney General, that officer, acting through the Department of
Justice, has delegated that authority to the EEOC through 29 C.F.R. § 1601.28(d). See Hiller,
327 F.3d at 1250. The court in Hiller recognized “the futility of requesting such letters [from
the Attorney General] when the requests are routinely denied.” Id. at 1252. The court also
observed that the purpose of the statute was effectively served where the EEOC issues a
right-to-sue letter:
Where the EEOC has not found reasonable cause sufficient to pursue the case
further, however, the Attorney General’s notice of right to sue would only
be echoing the EEOC’s determination not to proceed in the matter against the
state governmental respondent. In such circumstances, the state entity does
not need the protection offered by the Attorney General’s participation in the
administrative process.
Id. Accordingly, the court in Hiller found the equitable circumstances existed which excused
the plaintiff’s failure to obtain a right-to-sue letter from the Attorney General. The court
finds the same result should obtain here.
22
Statute of Limitations
However, the court finds that the District is entitled to summary judgment on the
basis of its argument that the present discrimination and retaliation claims are time-barred
under the relevant statutes of limitations. In doing so, the court concurs with Judge
Bostwick’s decision in 2004 that the plaintiff is seeking to revive and relitigate the sexual
harassment charges leveled against him in 1991. This litigation is untimely in light of the
statutes of limitations governing actions under Title VII and § 1981.
The parties concur as to the controlling statutes. Under 42 U.S.C. § § 2000e-5(e), the
plaintiff was required to bring his Title VII action within 300 days of the alleged unlawful
employment practice. The plaintiff was required to bring his § 1981 claim within the time
provided for similar actions under Kansas law. In this case, that statute is the two-year
limitations statute provided by K.S.A. 60-513. Hawkins v. Lemons, 2009 WL 2475130, *3 (D.
Kan. Aug. 12, 2009).
The present action is premised on the District’s policy of refusing to hire Brown.
That policy was unequivocally announced in 2001. Brown has acknowledged receiving
notice of the policy and understanding its application. The policy was instituted in the
wake of repeated inquiries by Brown into returning to work for the District, and there is
no basis in the evidentiary record for concluding that the District ever rescinded or altered
this policy. Accordingly, the time for Brown’s claims began to run when he received notice
of that policy, which was either August 27, 2001 (when King wrote to Brown stating the
District’s decision that he would not be rehired) or November 8, 2001 (when his former
attorney, the Phelps Law Firm, received a copy of the letter sent by Mr. Zima, stating the
District’s decision that Brown was not eligible for rehire). Judge Bostwick correctly decided
in 2004 that the claims then advanced were untimely, and the additional delay of a further
five years has not revived them.
23
In his Response, Brown points to his conversation at the YMCA with Principal
Cushinberry as somehow retriggering the limitations period. But Cushinberry merely
indicated during a casual conversation that “I would hire you in a minute.” The statement
itself clearly indicates both its personal (“I”) and provisional (“would hire you”) nature.
More importantly, Brown acknowledged in his deposition that he knew principals
do not have hiring authority. This is true in general for all prospective employees, but
Brown was not just any potential applicant. Even if Brown had supplied admissible
evidence that principals might in some instances be allowed to conduct hiring (and he has
not), his claims would still fail here since the District had previously and unequivocally
announced its decision that Brown was not eligible for rehire. Brown has not even
attempted to show that local principals have both hiring authority and the ability to
overrule the District itself as to matters of school policy.
Here, the defendant announced that Brown was not eligible for rehire. Accordingly,
Brown’s ability to claim discrimination or retaliation must be measured from the date the
District announced that policy. See Castorena v. Runyon, 1994 WL 146343, *1 (D. Kan. 1994).
His current claims are untimely and subject to summary judgment.
Collateral Estoppel and Res Judicata
Next, the District argues that Brown’s claims are also subject to dismissal due to the
preclusive effect of Judge Bostwick’s 2004 decision. The District argues that res judicata
applies, because Brown did or could have raised similar claims in his second action against
the District. See Lewis v. Circuit City Stores, 500 F.3d 1140, 1147 (10th Cir. 2007). Citing Kelly
v. Boyles, 2009 WL 3711578, *2 (D. Kan. Nov. 2, 2009). The District also contends that his
claims are subject to collateral estoppel, as Judge Bostwick dismissed his prior action
through summary judgment, Brown’s earlier suit arose from the same cause of action, and
the decision involved common questions of law and fact.
24
Brown argues that neither collateral estoppel nor res judicata have any application,
because Judge Bostwick found only that the action was untimely, and did not reach the
merits of the case. (Dkt. 69, at 40). But while Judge Bostwick held that Brown’s 2004 action
was untimely, and explicitly declined to “reach the other legal issues in the case,” Brown
v. Unified Sch. Dist. No. 501, 2005 U.S. Dist. LEXIS 46303 (D. Kan. Sept. 1, 2005), that does
not mean that the decision was not “on the merits” for purposes of claim preclusion.
“The rules of finality, both statutory and judge made, treat a dismissal on
statute-of-limitations grounds the same way they treat a dismissal for failure to state a
claim, for failure to prove substantive liability, or for failure to prosecute: as a judgment
on the merits.” Plaut v. Spendthrift Farm, 514 U.S. 211, 228 (1995). It is accordingly binding
on Brown and on this court. See, e.g., Libaire v. Kaplan, 395 Fed.Appx. 732, 735 (2nd Cir.
2010) (decision that “federal claims are time-barred precludes him from reasserting those
claims”); Elkadrawy v. Vanguard Group, 584 F.3d 169, 173 (3d Cir. 2009) (dismissal of Title VII
claim as time-barred is subject to res judicata); Mills v. Des Arc Convalescent Home, 872 F.2d
823, 826 (8th Cir.1989) (“a disposition of a Title VII action as untimely filed is a decision on
the merits for purposes of res judicata”). Accordingly, Judge Bostwick’s decision was a
decision on the merits for purposes of claim preclusion, and the court will grant the
defendant’s motion on that basis.
Section 1983 vs Section 1981
Next, the District argues that the court should also grant summary judgment as to
plaintiff’s claims under 42 U.S.C. § 1981, as such a claim is not properly advanced against
a governmental entity. Section 1983 provides the exclusive remedy for damages against a
state actor for civil rights claims. Jett v. Dallas Independent School District, 491 U.S. 701 (1989)
Brown agrees that his § 1981 action against the District is untenable, but argues that
the defect is merely procedural, and that the proper remedy is to allow him to amend his
25
complaint to add a § 1983 claim. (Dkt. 69 at 43). In support of his argument, Brown cites
several decisions authorizing such relief. Bolden v. City of Topeka, 441 F.3d 1129, 1137 (10th
Cir. 2006); Fulcher v. City of Wichita, 445 F. Supp. 2d 1271, 1280 (D. Kan. 2006) (superseded
on other grounds); Dockery v. Unified School District No. 231, 382 F. Supp. 2d 1234, 1240-1241
(D. Kan. 2005).
These cases are distinguishable in important respects. In Bolden, the plaintiff had
previously advanced both § 1981 and § 1983 claims, and the Tenth Circuit specifically
found that the former implicitly incorporated the allegations contained in the latter. 441
F.3d at 1129. Further, the plaintiff in Bolden appeared pro se. In Fulcher, leave to amend was
allowed in response to a motion to dismiss, not a motion for summary judgment. In
Dockery, the amendment was allowed prior to discovery.
Amendment was allowed in the cited cases because of a specific absence of
prejudice, coupled with (in Bolden) specific good cause for the amendment, in the fact that
the plaintiff was not an attorney. Bolden, which held that Jett did indeed require actions
against state actors to be brought under § 1983 rather than § 1981, was controlling
precedent for three years prior the to the present action. Plaintiff’s counsel offers no
showing of good cause for the failure to previously plead any reference to § 1983. (Dkt. 69,
at 43-44). More importantly, amendment now will work substantial prejudice to the District
and the court. Discovery is closed and trial is scheduled in less than two months. No
discovery has been conducted on the existence of the District’s policies or procedures.
Allowing plaintiff to amend his claims now and for the first time advance a § 1983 claim
would create prejudice by requiring additional discovery.
Given the absence of good cause justification and the substantial prejudice,
amendment may be properly refused. Semsroth v. City of Wichita, 2006 WL 2570557, *4 (D.
Kan. 2006). However, even were amendment allowed, it would fail to save plaintiff’s case.
26
Discrimination
Had Brown timely presented his claims of discrimination, summary judgment
would remain appropriate, as the plaintiff has failed to demonstrate that the proffered
reason for the decision not to rehire him was a pretext for discrimination. The parties agree
as to the controlling, burden-shifting framework. See Sanders v. Southwestern Bell Tel., 544
F.3d 1101, 1105 (10th Cir. 2008). This initially places the burden on the plaintiff to show the
existence of a prima facie case of discrimination. If this burden is met, the defendant faces
the burden of showing the existence of a legitimate, nondiscriminatory reason for its action.
If the defendant provides such a reason, the plaintiff has the opportunity to show that the
proffered rational was simply a pretextual mask for discrimination.
In the present case, the defendant contends that, even if Brown presented a prima
facie case of discrimination, summary judgment should be granted because it had a
legitimate reason in refusing to hire him, specifically the significant amount of negative
information in his personnel file, including substantiated claims of
making sexual
inappropriate comments to the girls under his supervision.
The court finds that the District possessed a legitimate reason for deciding the
Brown was not eligible for rehiring, and that the plaintiff has failed to demonstrate that this
reason was prejudice. Shorn of the inadmissible hearsay and privileged attorney-client
communications which Brown cites in connection with the 2009 Board executive sessions,
Brown’s arguments of pretext are restricted to (1) his conversation with Cushinberry
stating that Cushinberry would hire him, and (2) a few citations to positive statements
about his prior employment.
But, as noted above, it is uncontroverted that Cushinberry as a school principal had
no hiring authority. Moreover, there is no evidence that Cushinberry was independently
familiar with all of the negative information in Brown’s file. Similarly, Brown points to the
agreement by the substitute coordinator to schedule an interview with him in 2009. But,
27
again, there is no evidence that the coordinator knew of the District’s prior determination
that Brown was eligible for rehiring, and certainly no evidence that she had any authority
to overrule it.
As for the positive information in Brown’s employment records, a part of this
evidence takes the form of positive evaluations from Brown’s service with the Manhattan,
Kansas schools, and there is no evidence that it was presented to District 501 for its
evaluation. Moreover, in many instances the “positive” evaluations of Brown are coupled
with distinctly negative caveats about his need for improvement. His record contained
information that he had been disciplined for insubordination, and had been designated as
ineligible for rehiring in Kansas City. But most importantly, there is uncontroverted
evidence that the District had conducted an independent investigation of charges of sexual
harassment against Brown, and had concluded that he had made inappropriate, sexuallycharged comments to two minor female students. There is no evidence that the District
concern as to this negative employment record was not advanced in good faith, and the
role of the court is not to determine if the District fairly weighed the positive and negative
aspects of Brown’s employment history. See Swackhanmer v. Sprint/United Mgt., 493 F.3d
1160, 1169-70 (10th Cir. 2007) (plaintiff does not establish pretext merely by showing “that
the employer should not have made the termination decision — for example, that the
employer was mistaken or used poor business”).
Retaliation
Further, were the court to find that the present claims of retaliation were not barred
by limitations or the effect of plaintiff’s prior lawsuits, the defendant would also be entitled
to summary judgment on these claims on the merits. Such claims require that the plaintiff
engaged in a protected employment activity, and that this caused a subsequent adverse
employment action. Fye v. Oklahoma Corp. Com’n, 516 F.3d 1217, 1228 (10th Cir. 2008). Or
28
the plaintiff may show that retaliation played a motivating factor in the employment
decision by presenting evidence directly reflecting the retaliatory motive. Id. at 1226.
Plaintiff has failed to present any admissible evidence that his protected
employment activity (filing his 1991 and 2004 lawsuits) somehow caused the decision not
to rehire him in 2009, or that the District acted with a retaliatory motive. As noted earlier,
Brown’s reliance on what was purportedly stated during the 2009 executive sessions is
inadmissible hearsay. See Burns v. Board of County Com’rs of Jackson County, 330 F.3d 1275
(10th Cir. 2003) (holding that plaintiff’s testimony about what he heard had been said at
county commission meeting was inadmissible hearsay). Further, the reputed speakers
(Nusbaum and Mudrick) were not the decision makers with respect to the 2009 decision.
Rather, Dr. Singer decided not to overturn Dr. McFrazier’s 2001 determination that Brown
should not be rehired. Brown acknowledged during his deposition that it was “just my
belief” that the District’s 2009 decision was retaliation for his earlier lawsuits. By the time
of his 2009 application, those lawsuits were five and eighteen years old, preventing any
inference of retaliation based on temporal proximity alone. See Piercy v. Maketa, 480 F.3d
1192, 1198 (10th Cir. 2010) (court may infer causation by “close temporal proximity”).
The District also presents arguments seeking partial summary judgment as to some
of Brown’s damages claims, in the event that the court denies its broader motion. Given the
court’s findings herein, the court need not address the District’s damages arguments.
IT IS ACCORDINGLY ORDERED this 2nd day of June, 2011, that the defendant’s
Motion for Summary Judgment (Dkt. 63) is hereby granted.
s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE
29
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