Elliott v. Board of Education of Hopkins County, Kentucky et al

Filing 40

MEMORANDUM OPINION & ORDER by Chief Judge Joseph H. McKinley, Jr on 10/9/2015: The motion by Defendants, Board of Education of Hopkins County, Kentucky, Superintendent Linda Zellich, and former Superintendent James Lee Stevens, for summary judgmen t dismissing Plaintiff's claim for racial discrimination is GRANTED. This claim is dismissed with prejudice. Plaintiffs state law claims are dismissed without prejudice. A Judgment will be entered consistent with this Opinion. cc:counsel (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:14CV-00031
TONY ELLIOTT

PLAINTIFF

VS.
BOARD OF EDUCATION OF HOPKINS
COUNTY, KENTUCKY, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion by Defendants, Board of Education of
Hopkins County, Kentucky, Superintendent Linda Zellich, and former Superintendent James Lee
Stevens, for partial summary judgment dismissing Plaintiff’s claims for racial discrimination
under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), and the Kentucky
Civil Rights Act, KRS Chapter 344, and Plaintiff’s claim under KRS § 161.760 as it pertains to
the 2011-2012 school year [DN 27]. Fully briefed, this matter is ripe for decision.
I. STANDARD OF REVIEW
Before the Court may grant a motion for summary judgment, it must find that there is no
genuine dispute as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the
basis for its motion and identifying that portion of the record that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
moving party satisfies this burden, the non-moving party thereafter must produce specific facts
demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U .S. 242,
247–48 (1986).

Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the nonmoving party to present specific facts showing that a genuine factual issue exists by “citing to
particular parts of materials in the record” or by “showing that the materials cited do not
establish the absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c)(1). “The mere existence
of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient;
there must be evidence on which the jury could reasonably find for the [non-moving party].”
Anderson, 477 U.S. at 252. It is against this standard the Court reviews the following facts.
II. BACKGROUND
Plaintiff, Tony Elliott, filed a race discrimination action pursuant to Title VII of the Civil
Rights Act of 1964 and the Kentucky Civil Rights Act against the Defendants, the Board of
Education of Hopkins County, Kentucky (the “Board”), Hopkins County School District
Superintendent Linda Zellich in her official capacity, and former Hopkins County School
District Superintendent James Lee Stevens in his individual capacity, alleging that his days of
extended employment and rate of pay were reduced by the Defendants as a result of racial
discrimination. Elliott further claims that Defendants failed to give him proper notice of his
reduction in pay as required by KRS § 161.760(3) and failed to reduce his job responsibilities
pursuant to KRS § 161.760(3).
In 1995, Elliott filed suit against the Board for racial discrimination. The suit was settled
in 2002 by a written Settlement Agreement. Under the Settlement Agreement, Elliott was
guaranteed his position as a Social Worker/Counselor through the 2002-2003 school year with

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225 days of employment. For later school years, the Board agreed not to seek to reduce Elliott’s
days of employment or pay without just cause.
From the 2001-2002 school year through the 2010-2011 school year, Elliott was assigned
to work under a certified employee contract for 225 days. His salary was based upon his rank
and experience according to the uniform salary schedule adopted by the Defendant Board of
Education. Plaintiff was compensated for his extended days, above the base contract of 185 days
per school year, at the contract rate determined from his base salary. The daily rate of pay for
extended days is derived by dividing the base salary by 185 days. During this time period, the
Plaintiff was assigned and continues to serve in a certified positon as counselor at Hopkins
County Alternate Day Treatment (“ADT”) which operates on an extended school year of 210
instructional days and 230 program days.
In a letter from then-Superintendent James Stevens dated April 27, 2011, Elliott was
notified that due to “significant reduced funding . . . from numerous sources,” Elliott’s
employment days for the 2011-2012 school year would be reduced from 225 to 210 days, with
extended days of employment to be paid at the contract rate. Elliott was given the option to
work an additional 15 days at $27.00 per hour for six hours per day. As a result of being paid at
the hourly rate, Elliott suffered $2,081.70 in lost wages for the 2011-2012 school year. Elliott
maintains that his job responsibilities during that calendar year were not reduced contrary to the
requirement of KRS § 161.760(3).
The following year, Elliott received another letter from Stevens dated May 29, 2012,
stating that Elliott’s employment days were being further reduced from 210 to 185 days. Elliott
was given the option to work an additional 25 six-hour days at $27.00 per hour, for a total of 210
days. The letter did not mention the reason for the reduction in employment days. As a result of

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being paid at the hourly rate and loss of hours, Elliott suffered $ 8,101.60 in lost wages for the
2012-2013 school year. Elliott maintains that his job responsibilities were again not reduced in
violation of KRS § 161.760. Further, Elliott contends that the letter of May 29, 2012, was not
timely issued under KRS § 161.760(3). The terms of Plaintiff’s employment for the subsequent
years, the 2013-2014 and 2014-2015 school years, remained unchanged from the 2012-2013
school year; that is, Elliott has continued to be employed under a 185-day contract, with 25
optional extended employment days, for six hours per day at the hourly rate of $27 per hour.
Believing that these reductions in his extended days were racially motivated, Plaintiff
filed a complaint alleging race and age discrimination with the United States Equal Employment
Opportunity Commission (“EEOC”) on March 1, 2013. On December 31, 2013, the EEOC
issued a right-to-sue letter. On March 31, 2014, Plaintiff filed this current action alleging claims
of race discrimination pursuant to Title VII and KRS Chapter 344 and a claim for violation of
KRS § 161.760(3). Defendants now move for partial summary judgment.
III. DISCUSSION
Defendants argue that summary judgment on Plaintiff’s claim of race discrimination
under Title VII, 42 U.S.C. § 2000e–2(a)(1), and the Kentucky Civil Rights Act (“KCRA”), KRS
§ 344.010, should be granted because Plaintiff failed to state a prima facie case and failed to
show that the legitimate, nondiscriminatory reason for Plaintiff’s reduction in hours was a pretext
for unlawful discrimination.

Defendants also maintain that Plaintiff’s KRS § 161.760 claim

related to the 2011-2012 school year fails as a matter of law because Plaintiff’s responsibilities
were reduced during the school year. The Court shall first address Plaintiff’s Title VII claim.
A. Prima Facie Case
Defendant first argues that Plaintiff has failed to make out a prima facie case of

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discrimination under Title VII. Title VII makes it unlawful for an employer “to discharge any
individual, or otherwise to discriminate against any individual with respect to . . . compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Where, as here, a plaintiff offers only
indirect evidence of discrimination, he may establish a prima facie case under Title VII by
showing: “1) he is a member of a protected class; 2) was qualified for the job; 3) he suffered an
adverse employment decision; and 4) was replaced by a person outside the protected class or
treated differently than similarly situated non-protected employees.” Newman v. Federal Express
Corp., 266 F.3d 401, 406 (6th Cir. 2001).
If a plaintiff satisfies this requirement, the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the adverse action. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 410–11
(6th Cir. 2008); Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 703 (6th Cir. 2008). If the
defendant articulates such a reason, the burden then shifts back to the plaintiff to show by a
preponderance of the evidence that the proffered reason is pretextual. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). This means that in order to withstand a motion
for summary judgment a plaintiff must show that there is a triable issue of fact upon which a jury
could reasonably find that more likely than not the employer’s reason is a pretext for unlawful
discrimination. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir.1994).
Defendants concede that Plaintiff is a member of a protected class, qualified for his job,
and that reduction in work hours qualifies as an adverse employment action. However,
Defendants argue that Plaintiff failed to demonstrate that similarly situated non-protected
employees were treated more favorably. In a discrimination case, the Sixth Circuit has explained

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that “[i]n order for . . . employees to be considered similarly-situated . . . the plaintiff must prove
that all of the relevant aspects of his employment situation are ‘nearly identical’ to those of the
[non-protected] employees who he alleges were treated more favorably.” Pierce v.
Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994). See also Knox v. Neaton Auto
Prods. Mfg., Inc., 375 F.3d 451, 458 (6th Cir. 2004). In making this determination, courts assess
certain factors, such as whether the comparable employees “have dealt with the same supervisor,
have been subject to the same standards and have engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or the employer's
treatment of them for it.” MacDonald–Bass v. J.E. Johnson Contracting, Inc., 493 Fed. Appx.
718, 724 (6th Cir. 2012)(quoting Noble v. Brinker Int’l, Inc., 391 F.3d 715, 729 (6th Cir. 2004)
(citation omitted)). “Differences in job title, responsibilities, experience, and work record can be
used to determine whether two employees are similarly situated.” Leadbetter v. Gilley, 385 F.3d
683, 691 (6th Cir. 2004) (quoting Pierce, 40 F.3d at 801). The Sixth Circuit recognizes that these
factors are not rigid requirements, but “are only apposite where they are meaningful to the
particular claim of discrimination presented.” Bobo v. United Parcel Service, Inc., 665 F.3d 741,
751 (6th Cir. 2012). See also Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352
(6th Cir. 1998)). The Sixth Circuit has cautioned that the purpose of Title VII is “not served by
an overly narrow application of the similarly situated standard.” Jackson v, Fed Ex Corporate
Services, Inc, 518 F.3d 388, 396 (6th Cir. 2008).
Plaintiff contends that Peter Phelan and he are similarly situated for Title VII purposes
because they both are certified employees at alternative schools in the District and both have or
had extended days. According to Plaintiff, Peter Phelan, a Caucasian teacher at Hopkins County
Schools Academy (the “Academy”), continued to be paid extended days at his regular daily

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contract rate after Plaintiff’s pay was reduced. The Academy is an alternative program within
the Hopkins County Schools system just like ADT. Phelan, a certified employee, transferred
from the ADT facility to the Hopkins County Academy in 2010 where he was given a position as
Lead Teacher with 10 extended days. The “Lead Teacher” title is not listed on the district’s extra
service pay schedule. In contrast to ADT, the Academy is not required to operate an extended
school calendar of 210 instructional days. Nevertheless, for the 2011-2012 school year, Phelan
was given 10 extended days paid at his daily contract rate. In contrast, Tony Elliott’s extended
days and rate of pay were reduced that year from 225 to 210 contract days with extended days of
employment to be paid at the contract rate (the difference between 210 hours and 185 hours) and
Elliott was also given the option to work an additional 15 days at $27.00 per hour for six hours
per day. For the 2012-2013 school year, Phelan’s extended days were increased to at least 15
extended days at his daily contract. Phelan continued to receive the 15 extended days for the
2013-2014 school year. In contrast, Tony Elliott’s extended days and rate of pay were reduced
for the 2012-2013 school year from 210 to 185, with the option of working additional 25 sixhour days at the hourly rate of $27, for a total of 210 days.
Granting the appropriate deference to the Plaintiff’s evidence, Phelan is not similarly
situated to Plaintiff. First, there are differences between Plaintiff’s job responsibilities and
Phelan’s job responsibilities.

The record reflects that Phelan worked as a teacher at the

Academy, while Plaintiff worked as a counselor at ADT. Elliott described his job duties to
include intake and orientation of new students and their families and the creation of an Individual
Treatment Plan for each student; completion of progress summaries for the students; treatment
review; communication with parents weekly; reporting to Court Designated Workers and DJJ
workers; design of aftercare treatment plans; and group counseling sessions. In contrast, Phelan

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serves as a Lead Teacher at the Academy. Because the Academy did not have a principal on-site
and Phelan has an administrative certification, Phelan was designated Lead Teacher and given
additional responsibilities to fill this void. While the Academy operates 185 days, Phelan’s
involvement in summer school required he be given the extended days in question. Phelan did
not receive payment for any days beyond those extended days.
Second, the salaries for Elliott and Phelan are funded from different sources. While both
schools are alternative education programs within the Hopkins County School District, the
schools receive funding from different sources. A significant amount of ADT’s funding comes
from the Kentucky Department of Juvenile Justice (“DJJ”) and the Kentucky Education
Cooperative for State Agency Children (“KECSAC”). Elliott conceded in his deposition that
ADT teacher and counselor salaries rely on funds from DJJ and KECSAC. (Elliott Dep. at 22.)
In fact, a District budget document shows that Elliott’s entire salary in 2011 came from DJJ
funds. (DN 27, Exhibit 2.) Because the Plaintiff’s pay is the primary issue in the present case,
the difference in how each school funds its teacher compensation is particularly relevant to
determining which employees are similarly situated. See Reiser v. University of Cincinnati,
2006 WL 1876886, *8 (S.D. Ohio. July 5, 2006)(employees who hold positions funded by
different sources of revenue may not be similarly situated in all material respects).
These differences between Plaintiff and Phelan’s position, duties, and salary funding
preclude a finding that Plaintiff and Phelan are similarly situated in all relevant aspects.
Accordingly, Plaintiff has failed to provide sufficient evidence to establish his prima facie case
of racial discrimination.
B. Legitimate, Non–Discriminatory Reason
Assuming that Plaintiff could establish a prima facie case of race discrimination,

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Defendants have offered a legitimate reason for the reduction of Elliott’s extended days.
Defendants assert that since the late 2000s, the District has suffered from significant fluctuation
in and cuts to funding for the ADT program, as well as a reduction in ADT student enrollment.
While serving as Deputy Superintendent of the Hopkins County School District, Linda Zellich
became aware that funding levels for ADT would not be maintained at consistent levels and that
the overall trend was for funding levels to follow a general pattern of reduction. Zellich spoke
with the Director of KECSAC, Dr. Ronnie Nolan, regarding how to accommodate reduced levels
of funding while still preserving the existence of the ADT program. Dr. Nolan informed Zellich
that other districts were reducing teachers’ days of employment to the base amount, and then
allowing these teachers to work at an hourly rate on additional days to ensure the program
operated on the required number of days. (Zellich Second Affidavit at ¶¶ 3-6.) Facing this
uncertainty, the District sought to cut costs in various ways including downsizing the ADT
program. In fact, there were discussions to eliminate the program completely. (Elliott Dep. at
55.) In an effort to preserve the ADT program, Zellich testified that some employees were
transferred, while others saw employment days reduced. Accordingly, Defendants have offered
a legitimate, non-discriminatory explanation for their reduction of Elliott’s employment days,
thus destroying “‘the legally mandatory inference of discrimination arising from the plaintiff’s
initial evidence.’” Manzer, 29 F.3d at 1082 (quoting Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 255 n. 10 (1981)).
C. Pretext
In order to establish pretext, a plaintiff must show that the proffered reason (1) had no
basis in fact; (2) did not actually motivate the adverse employment action; or (3) was insufficient
to motivate that action. Manzer, 29 F.3d at 1084. Ultimately, to carry his burden in opposing

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summary judgment, the Plaintiff must produce sufficient evidence from which a jury could
reasonably reject Defendants’ explanation of why they reduced his employment days. Chen v.
Dow Chemical Co., 580 F.3d 394, 400 (6th Cir. 2009). Plaintiff contends that Defendants’
proffered reason did not actually motivate the reduction of his hours and pay.
First, Plaintiff argues that Defendants’ assertion of reduced funding for the ADT program
is belied by the fact that the ADT program was moved in December of 2011 from the Anton
Road school to a much smaller facility on Sugg Street for the express purpose of saving money
and that the monies saved from the move should offset any reduction in funding experienced in
the ADT program. Plaintiff offers no support for his claim that relocation of the ADT program
to a smaller facility negated the entire budget shortfall for the program or the reduced student
enrollment issues. Furthermore, Plaintiff argues that that former ADT Principal Joe Barlow
believed the move of the ADT program “was a step toward eventually eliminating the Day
Treatment program.” (Barlow Aff. at ¶ 10.) Whether the relocation of the ADT program was
done in an effort to prevent the elimination of the ADT program or in an effort to eliminate the
entire ADT program does not create a genuine dispute as to whether Defendants’ reason for the
reduction of Elliott’s hours was racially motivated. Elimination of the ADT program would
potentially affect all employees of ADT, not just Elliott.
Second, Plaintiff argues that the Defendants’ assertion that Elliott’s pay was cut because
of reduced funding is called into question by the fact that in 2011-2012, the year that Elliott’s
pay was first reduced, the ADT program’s funding level from the DJJ was $107,630.00, more
than triple from two years earlier. The record reflects that for the 2007-2008 school year, ADT
received $119,589.00 from DJJ and $77,280.00 from KECSAC. Funding from DJJ fell in 20082009 to $80,084.85 and rose slightly to $81,150 from KECSAC. In 2009-2010, funding dropped

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dramatically to only $32,361.56 from DJJ and $36,737.01 from KECSAC. For the 2011-2012
school year, ADT received $107,630.00 from DJJ and $61,740.00 from KECSAC. The funding
dropped again for the 2012-2013 school year to $96,867.00 from DJJ and $49,113.00 from
KECSAC. Thus, a review of ADT funding reflects dramatic fluctuations between 2007 and
2012.

Further, it is undisputed that conversations between District administrators and the

directors of the DJJ and KECSAC revealed that the coming years would see an overall trend of
reduced funding. Concerned with the dramatic fluctuation, Zellich testified that the District
adopted the approach of other districts by reducing teachers’ days of employment to the base
salary amount in the ADT program, and then allowing these teachers to work at an hourly rate on
additional days to ensure that the programs operated on the required number of days. In fact, as
a result of the overall trend of reduced funding, other employees associated with the ADT
program experienced reduction in hours, were not provided additional days at an hourly rate, or
were transferred to another school.
Plaintiff cannot avoid summary judgment merely by disagreeing with the District’s
business decision to reduce ADT’s employee’s days in an effort to account for projected budget
shortfalls and reduced student enrollment. See Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d
274, 285–86 (6th Cir. 2012) (the pertinent issue is whether the employer made an honest,
informed business judgment, not whether that business judgment was correct or ideal); Stein v.
National City Bank, 942 F.2d 1062, 1065 (6th Cir. 1991) (“It is not the function of courts to
judge the wisdom of particular business policies . . .”); Hartsel v. Keys, 87 F.3d 795, 801 (6th
Cir. 1996), cert. denied, 519 U.S. 1055 (1997) (“the law does not require employers to make
perfect decisions, nor forbid them from making decisions that others may disagree with”; rather,
it forbids them only from making decisions “for impermissible, discriminatory reasons”); Adams

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v. Tenn. Dept. of Finance & Admin., 179 Fed. Appx. 266, 272 (6th Cir. 2006) (“Courts are not
intended to act as super personnel departments to second guess an employer’s facially legitimate
business decisions.”). Plaintiff has failed to demonstrate that Defendant’s proffered reasons had
no basis in fact, did not actually motivate Defendant’s challenged conduct, or were insufficient to
motivate Defendant’s challenged conduct. See Schoonmaker v. Spartan Graphics Leasing, LLC,
595 F.3d 261, 268 (6th Cir. 2010). The Court concludes that Plaintiff has not shown Defendants’
proffered reason for the reduction of Elliott’s hours was pretext for racial discrimination.
Accordingly, Defendants are entitled to summary judgment as to this claim.1
D. Remaining State Law Claims
Having dismissed the Plaintiff’s federal claim, the Court declines to exercise pendent
jurisdiction over Plaintiff’s state law claims. See United Mine Workers of America v. Gibbs,
383 U.S. 715 (1966) (“[I]f the federal claims are dismissed before trial, . . . the state claims
should be dismissed as well.” Id. at 726.). Therefore, Plaintiff’s pendent state law claims are
dismissed without prejudice.
IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that the motion by Defendants,
Board of Education of Hopkins County, Kentucky, Superintendent Linda Zellich, and former
Superintendent James Lee Stevens, for summary judgment dismissing Plaintiff’s claim for racial

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Plaintiff argues that the School District’s failure under former Superintendent Steven’s administration to
honor the terms of the 2002 Settlement Agreement with Plaintiff by failing to hire any African-American candidates
for central office positions suggests the likelihood of racial animus on the part of Stevens and the District. “[T]he
pattern-or-practice method of proving discrimination is not available to individual plaintiffs.” Bacon v. Honda of
Am. Mfg., Inc., 370 F.3d 565, 575 (6th Cir. 2004) (“We subscribe to the rationale that a pattern-or-practice claim is
focused on establishing a policy of discrimination; because it does not address individual hiring decisions, it is
inappropriate as a vehicle for proving discrimination in an individual case.”) “Pattern-or-practice evidence may,”
however, “be relevant to proving an otherwise-viable individual claim for disparate treatment under the McDonnell
Douglas framework.” Id. Because this Court has determined that Plaintiff’s claim is not “otherwise viable,” the
pattern-or-practice argument is irrelevant here. See Segel v. Kimberly-Clark Corp., 2010 WL 3488813, *3 (E.D.
Mich. Aug. 31, 2010).

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discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) [DN 27] is
GRANTED. This claim is dismissed with prejudice. Plaintiff’s state law claims are dismissed
without prejudice. A Judgment will be entered consistent with this Opinion.

cc: counsel of record
October 9, 2015

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