Davenport v. Anne Arundel County Board of Education
Filing
38
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 2/6/14. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CHRISTINE DAVENPORT,
:
Plaintiff,
:
v.
:
Civil Action No. GLR-12-1335
ANNE ARUNDEL COUNTY BOARD OF
EDUCATION,
:
:
Defendant.
:
MEMORANDUM OPINION
This employment discrimination action is before the Court
on
Defendant
Anne
Arundel
County
Board
of
Education’s1
“Board”) Motion for Summary Judgment (ECF No. 29).
(the
Plaintiff
Christine Davenport, a former employee of the Board, alleges the
Board repeatedly failed to promote her in favor of substantially
younger and less-qualified applicants in violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et
seq. (2012).
She also alleges the Board retaliated against her
in response to her internal and formal complaints.
The Court,
having reviewed the pleadings and supporting documents, finds no
hearing necessary.
See Local Rule 105.6 (D.Md. 2011).
For the
reasons outlined below, the Board’s Motion will be granted.
1
The Board notes that its proper name is Board of Education
of Anne Arundel County.
BACKGROUND2
I.
A.
Facts Relevant to Age Discrimination
The Court previously recited the applicable facts in the
preceding Memorandum Opinion dated December 4, 2012 (ECF No.
12),
but
will
reiterate
present motion.
the
facts
necessary
to
rule
Davenport was born in December 1949.
on
the
She began
working for Anne Arundel County Public Schools (“AACPS”) as a
teacher in 1973, where she remained for the ensuing thirty-two
years.
In 2005, at age fifty-five, Davenport decided to become
an assistant principal.
She applied for, and was hired as, an
administrative trainee in September 2005.
At the time,
the
administrative trainee position provided administrative support
with
student
discipline
and
served
as
a
springboard
for
individuals interested in being promoted to other administrative
positions, including assistant principal.
The Board requires assistant principal candidates to have
an Administrator I endorsement and to interview with a panel of
principals
three.
open
that
rates
the
candidates
on
a
scale
of
zero
to
Candidates are then placed on a list and may apply to
positions
or
be
considered
for
unadvertised
assistant
principal positions.
2
Unless otherwise noted, the following facts are undisputed
and are viewed in the light most favorable to Davenport, the
nonmoving party.
2
In
2008,
while
serving
as
an
administrative
trainee,
Davenport received her endorsement and interviewed for secondary
assistant principal positions.
She received an interview score
of 1.76, equivalent to “recommend with reservations.”
Mem.
Supp.
Mot.
Summ.
J.
Ex.
1,
Attach.
D,
ECF
(Def.’s
No.
29-2).
Though the parties dispute the specific reasons why, Davenport
was
not
considered
for
promotion
to
an
assistant
principal
position despite applying for, and inquiring about, several open
positions.
Instead, the Board repeatedly filled the positions
with younger candidates.
Before the 2010-2011 school year, as
Davenport’s time as an administrative trainee came to an end,
the Board hired or promoted “several individuals” under the age
of forty to assistant principal
positions, none of whom had
interview scores lower than 2.0.
(Def.’s Mem. Supp. Mot. Summ.
J. Ex. 1, at 3, ECF No. 29-2); (see also Pl.’s Opp’n to Def.’s
Mot. Summ. J. & Req. for Hr’g [“Pl.’s Opp’n”] Ex. 5, at 2, ECF
No. 34-5) (naming three individuals under the age of forty whom
the Board allegedly hired as assistant principals).
The lone exception was Phillip Elliot.
The Board promoted
Elliot to assistant principal at Meade High School effective
August 19, 2010, because the position became available later in
the summer hiring season.
He was forty years old and had an
interview score lower than 2.0 and equivalent to “recommend with
3
reservations.”
34-2).
(Liverman Dep. 64:2–3, July 31, 2013, ECF No.
The timing permitted Meade High School Principal Darryl
Kennedy to recommend an individual for assistant principal at
the school.
After having supervised Davenport and Elliot while
both were administrative trainees at Meade High School during
the 2009-2010 school year, Principal Kennedy recommended Elliot
for the assistant principal position.
No one recommended Davenport or advocated on her behalf.
Rather, Principal Kennedy testified that Davenport’s “response
to situations [involving student behavior] were either slow or
nonexistent,” and though “she was a very positive person . . . ,
there was some slowness to her.”
(Kennedy Dep. 34:15–16, 39:19–
21, Sept. 12, 2013, ECF No. 34-4).
Davenport spoke to Principal
Kennedy directly about the decision to promote Elliot, believing
the decision was discriminatory based on her age.
Davenport also met with AACPS Deputy Superintendent (“Dep.
Sup.”)
Arlen
overlooked
for
Liverman
to
assistant
voice
principal
her
concern
positions.
about
During
being
the
meeting, Dep. Sup. Liverman remarked that Davenport would not be
promoted because of her “experience” or “seniority,”3 and that
her “salary would be too high.”
3
(Pl.’s Opp’n Ex. 1, ¶ 6, ECF
Davenport is unable to remember whether Dep. Sup. Liverman
used the word “experience” or “seniority” but knows he used one
of the two.
(Davenport Dep. 58:3–60:8, Aug. 2, 2013, ECF No.
37-2); (Pl.’s Opp’n at 4 n.1).
4
No. 34-1).
By the start of the 2010-2011 school year, at sixty
years old, Davenport was transferred to Marley Middle School as
an eighth grade science teacher.
B.
Facts Relevant to Retaliation
Davenport filed a discrimination charge with the Maryland
Commission on Human Relations (“MCHR”) and the Equal Employment
Opportunity Commission (“EEOC”) on October 8, 2010, alleging age
discrimination.
In the discrimination charge, Davenport alleged
the Board promoted three individuals under the age of forty,
including Elliot, to unadvertised assistant principal positions
even though they were less qualified.
older
than
fifty,
she
alleged,
Three of her counterparts
were
selected
for
teaching
positions rather than as assistant principals.
One month later, on November 8, 2010, Marley Middle School
Assistant Principal (“Asst. Principal”) Susan Sergeant observed
Davenport’s
classroom
at
Principal
Kevin
Buckley’s
request.
Principal Buckley had observed Davenport’s classroom two months
earlier.
Asst.
critical
analysis
recommendations
Principal
of
for
Sergeant’s
Davenport’s
improvement.
evaluation
classroom
By
Davenport’s performance started to decline.
contained
performance
November
17,
a
with
2010,
That day, Principal
Buckley attempted to counsel Davenport and present her with the
Board’s
written
procedures
for
5
penalizing
and
terminating
tenured
teachers.
Davenport,
taking
the
gesture
as
an
“unmistakable” sign her termination was imminent, began taking
sick leave the following day and did not return to Marley Middle
school, having since retired.
C.
(Pl.’s Opp’n at 5, ECF No. 34).
Procedural History
Davenport commenced this action in this Court on May 1,
2012,
alleging
Retirement
violations
Income
Security
of
the
Act
ADEA
and
(“ERISA”),
29
the
Employment
U.S.C.
§
1140
(2012), and advancing claims for breach of contract, intentional
misrepresentation, and negligent misrepresentation.
4,
2012,
the
Court
dismissed
all
but
On December
Davenport’s
age
discrimination and retaliation claims, limiting their scope to
facts not time-barred by the ADEA.
(See ECF Nos. 12, 13).
It
also limited Davenport’s retaliation claim to acts that occurred
after she filed her discrimination charge.
Discovery has since
concluded and the Board now moves for summary judgment.
II.
A.
DISCUSSION
Standard of Review
Under Federal Rule of Civil Procedure 56(a), the Court must
grant summary judgment if the moving party demonstrates that
there is no genuine issue as to any material fact, and that the
moving
party
is
entitled
to
judgment
Fed.R.Civ.P. 56(a).
6
as
a
matter
of
law.
In reviewing a motion for summary judgment, the Court views
the facts in a light most favorable to the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Once
a motion for summary judgment is properly made and supported,
the opposing party has the burden of showing that a genuine
dispute exists.
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986).
“[T]he mere existence of
some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.”
Anderson, 477 U.S. at 247–48 (emphasis in original).
A material fact is one that might affect the outcome of a
party’s case.
Ventures,
Inc.,
Id. at 248; JKC Holding Co. v. Wash. Sports
264
F.3d
459,
465
(4th
Cir.
2001).
The
materiality is determined by the substantive law, and “[o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.”
Anderson, 477 U.S. at 248; Hooven-Lewis v.
Caldera, 249 F.3d 259, 265 (4th Cir. 2001).
A genuine issue concerning a material fact arises when the
evidence is sufficient to allow a reasonable jury to return a
verdict in the nonmoving party’s favor.
248.
Anderson, 477 U.S. at
Rule 56(e) requires the nonmoving party to go beyond the
7
pleadings and by its own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
B.
Analysis
1.
Age Discrimination Claim
The ADEA prohibits employers from discriminating against
individuals
because
of
their
age.
29
U.S.C.
§
623(a)(1).
Davenport can establish age discrimination under the ADEA either
through: (1) direct or circumstantial evidence her age motivated
the Board’s adverse employment decision, or (2) the analytical
approach espoused in McDonnell Douglas Corporation v. Green, 411
U.S. 792 (1973), in which the Court engages in a burden-shifting
analysis.
Hill v. Lockheed Martin Logistics Mgmt., Inc., 354
F.3d 277, 284–85 (4th Cir. 2004).
a.
Direct Evidence of Discrimination
At the outset, Davenport contends she has direct evidence
of age discrimination in which Board employees referenced her
“experience” or “seniority” in addressing why she would not be
promoted, or described her as having “some slowness to her.”
Davenport
avers
that
discriminatory animus.
these
are
code
words
betraying
a
The Board denies these claims, arguing
Davenport’s recollection of the events is inconsistent and that
8
her “slowness” was in reference to her disciplinary ability, not
her
age.
The
statement
Court
betrays
agrees
a
with
the
discriminatory
Board
intent
because
when
neither
viewed
in
context.
Direct evidence of age discrimination “may include employer
remarks
that
reflect
a
discriminatory
attitude,
or
that
demonstrate a discriminatory animus in the decisional process.”
Martin v. Alumax of S.C., Inc., 380 F.Supp.2d 723, 728 (D.S.C.
2005) (quoting Kneibert v. Thomson Newspapers, Mich. Inc., 129
F.3d
444,
omitted).
452
To
(8th
meet
Cir.
her
1997))
(internal
evidentiary
quotation
marks
Davenport
“must
burden,
present evidence which demonstrates a specific link between the
discriminatory animus and the challenged decision, sufficient to
support
a
illegitimate
decision.”
finding
by
criterion
a
reasonable
actually
fact
finder
motivated
the
that
an
challenged
Id. (quoting Braziel v. Loram Maint. of Way, Inc.,
943 F.Supp. 1083, 1095 (D.Minn. 1996)) (internal quotation marks
omitted).
Not all age-related statements, however, are categorized as
direct
evidence
of
age
discrimination.
standard can be quite high.
Id.
Indeed,
the
The United States Court of Appeals
for the Fourth Circuit, in particular, has “noted that most age
discrimination cases fall into the category of pretext cases,
9
because direct evidence of improper discrimination is unusual.”
Malina v. Balt. Gas & Elec. Co., 18 F.Supp.2d 596, 604 n.5
(D.Md. 1998) (citing Halperin v. Abacus Tech. Corp., 128 F.3d
191, 202 n.16 (4th Cir. 1997)).
“Rather, courts have found only
the most blatant remarks, whose intent could be nothing other
than to discriminate on the basis of age, to constitute direct
evidence of discrimination.”
578,
582
(11th
“militates
Cir.
against
discrimination.”
a
Carter v. City of Miami, 870 F.2d
1989).
This
finding
of
tentativeness
direct
by
evidence
courts
of
age
Martin, 380 F.Supp.2d at 729.
With this in mind, Davenport’s testimony raises concerns
about whether Dep. Sup. Liverman’s alleged statements are in
fact
direct
evidence
of
discrimination.
In
her
affidavit,
Davenport testified that Dep. Sup. Liverman told her, “I would
not be promoted because of my ‘experience’ or ‘seniority,’ and
said that my salary would be too high.”
6)
(emphasis
added).
In
one
of
her
(Pl.’s Opp’n Ex. 1, ¶
interrogatory
answers,
Davenport responded that Dep. Sup. Liverman told her “he could
not promote her because she’d be on the top of the scale . . .
[and] they would have to pay her more.” (Def.’s Reply to Pl.’s
Opp’n to Def.’s Mot. Summ. J. [“Def.’s Reply”] Ex. 1, at 3, ECF
No. 37-1) (emphasis added).
10
Instead
of
her
age,
concerned with her salary.
Dep.
Sup.
Liverman
seemed
most
(See Davenport Dep. at 58:10–20)
(saying that “the Board does not have that kind of money to pay
you”); (id. at 59:16–19) (noting that she “would be making more
money
than
some
of
the
principals”).
That
Davenport
later
doubted whether Dep. Sup. Liverman discussed her age at all only
buttresses the notion that any alleged insinuations about her
experience or seniority were to implicate her salary, not to
stress her age.4
(Davenport Dep. at 60:9–17).
There are certainly occasions when employers use experience
and seniority to conceal a discriminatory animus.
See, e.g.,
Taggart v. Time, Inc., 924 F.2d 43, 47 (2d Cir. 1991) (noting
that denying an older applicant employment based on experience
“is simply to employ a euphemism to mask the real reason for
refusal, namely, in the eyes of the employer the applicant is
too old”); Arnold v. U.S. Postal Serv., 863 F.2d 994, 1000 (D.C.
Cir.
1988)
(“There
may
well
be
cases
in
which
seniority
is
simply a code word for age discrimination.”).
But when legitimately considered on its own accord, one’s
experience
4
or
seniority
is
typically
not
a
basis
for
age
The Board argues Dep. Sup. Liverman specifically told
Davenport during their meeting that longevity is not a basis for
promotion and that none of her five previous supervisors
advocated on her behalf. (Def.’s Reply at 2). This argument is
unsupported because the evidence the Board cites is not included
in the record.
11
discrimination
salary
under
the
considerations,
ADEA,
as
throughout her testimony.
especially
Davenport
when
suggests
coupled
is
the
with
case
See Hazen Paper Co. v. Biggins, 507
U.S. 604, 611 (1993) (“Because age and years of service are
analytically distinct, an employer can take account of one while
ignoring the other, and thus it is incorrect to say that a
decision
based
on
years
of
service
is
necessarily
‘age
based.’”); Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152
(5th Cir. 1995) (“[T]he ADEA prohibits discrimination on the
basis of age, not salary or seniority.”).
Accordingly, Dep.
Sup. Liverman’s alleged comments are not direct evidence of age
discrimination.5
A review of Principal Kennedy’s statements yields similar
results.
5
Davenport
relies
on
two
portions
of
Principal
Davenport, citing 29 C.F.R. § 1625.7, argues salary
concerns are not a defense to disparate treatment claims.
The
regulation, however, is inapplicable here because the Board does
not use age as a limiting criterion for promotions. 29 C.F.R. §
1625.7(b) (2014); see EEOC v. Johnson & Higgins, Inc., 887
F.Supp. 682, 685–86 (S.D.N.Y. 1995) (applying 29 C.F.R. § 1625.7
where a company expressly required its employees to retire by a
certain age).
Moreover, salary concerns are indeed a viable
consideration in disparate treatment claims.
See, e.g.,
Blackburn v. Wise Cnty. Sch. Bd., No. 2:11CV00033, 2012 WL
1309406, at *3 (W.D.Va. Apr. 17, 2012) (concluding the desire to
reduce salary does not support a disparate treatment claim under
the ADEA).
Davenport also argues Dep. Sup. Liverman denied her salary
was a consideration.
Though references to Davenport’s salary
appear nowhere outside her own testimony, the Court can find
nothing in the record supporting her argument.
12
Kennedy’s deposition testimony in which he refers to her as
“slow” and having “some slowness to her.”
39:21).
(Kennedy Dep. 34:16,
Read in a vacuum, the statements could reasonably carry
indicia of discriminatory intent.
Examining the statements in
context, however, reveals that Principal Kennedy was describing
Davenport’s inadequate responses to student misconduct given her
extensive training and experience:
Q.
Can you think of any specific examples when you
had to train or teach her things that you would have
expected her to already know?
A.
. . . [W]hether it’s kids horseplaying too much
or loud profanity, . . . there were instances where
her response to situations were either slow or
nonexistent, and there were concerns about how she
handled or dealt with it.
(Id. at 34:5–17) (emphasis added); (see also id. at 39:14–40:15)
(noting that he expected a third- or fourth-year administrative
trainee “to handle situations a little bit more quicker than she
did”).
None
of
the
statements
Davenport
relies
upon
reveal
a
discriminatory animus and thus are not direct evidence of age
discrimination.
b.
Because
Pretextual Approach Under McDonnell Douglas
Davenport
discrimination,
framework.
she
provides
must
McDonnell
rely
Douglas
13
no
on
direct
the
prescribes
evidence
McDonnell
a
of
age
Douglas
burden-shifting
analysis in which Davenport must first demonstrate a prima facie
case of age discrimination.
Hill, 354 F.3d at 285.
Once she
establishes a prima facie case, the burden shifts to the Board
to provide a legitimate, non-discriminatory reason for failing
to promote her.
Id.
If the Board can do so, the burden shifts
back to Davenport, who must demonstrate by preponderance of the
evidence
that
the
discrimination.
reason
Id.
offered
is
in
fact
a
pretext
for
To do so, Davenport must do more than
simply show the articulated reason is false.
438 F.3d 404, 430 (4th Cir. 2006).
Laber v. Harvey,
She must show that the Board
discriminated against her on the basis of her age.
Id.
Given this framework, the Court concludes that Davenport
fails to establish a prima facie case for age discrimination
because she was not qualified for assistant principal positions.
Even if she established a prima facie case, however, the Board
provides legitimate, non-discriminatory reasons for failing to
promote
her
that
Davenport
cannot
show
are
pretextual
by
preponderance of the evidence.
i.
The
protected
Board
class
Prima Facie Case for Age Discrimination
concedes
and
that
applied
Davenport
for
open
is
a
member
of
the
assistant
principal
positions, but it disputes whether she was qualified.
It argues
Davenport was not considered for assistant principal positions
14
because she had an interview score lower than 2.0.6
Davenport
contends there is no minimum qualifying score and that she has
otherwise met all the factors for establishing a prima facie
case.
The Court disagrees, concluding that Davenport has not
established a prima facie case for age discrimination because
she
has
not
shown
that
she
was
qualified
for
an
assistant
principal position.
To establish a prima facie case of failure to promote on
the basis of age discrimination, Davenport must show: (1) she is
a member of the protected class of individuals at least forty
years old, (2) the Board had an open position for which she
applied and was qualified,
(3)
she
was rejected despite
her
qualifications, and (4) the position remained open or was filled
by
a
substantially
younger,
similarly
qualified
applicant,
regardless of whether the applicant is also a member of the
protected class.
Laber v. Harvey, 438 F.3d at 430.
Considering
the Board’s concessions, and that neither party disputes whether
assistant
principal
positions
were
filled
with
similarly
qualified but substantially younger applicants, the only issue
6
The Board also argues there are no circumstances giving
rise to an inference of unlawful discrimination. This argument
is misplaced, however, because circumstances giving rise to an
inference of unlawful discrimination is a factor in alleged
instances of race discrimination, not age discrimination.
See
Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268
(4th Cir. 2005) (outlining the factors to establish a prima
facie case of racial discrimination in promotions).
15
remaining
is
whether
Davenport
was
qualified.
The
Court
concludes she was not.
Neither party presents an express list of qualifications
for
assistant
principal
positions.
Frankly,
the
record
is
unclear as to whether one exists, or whether applicants are
fully
aware
of
such
qualifications
before
applying.
The
ambiguity creates the issue of whether one’s low interview score
and
lack
of
administrative
further consideration.
advocacy
disqualifies
her
from
Given the record before it, the Court
believes they do.
The testimony exposes a distinction between applicants in
the
pool
for
open
assistant
qualified
for
additional
principal
positions
and
Several
facts
consideration.
those
give
credence to this distinction.
Namely, Davenport was placed in
the
of
applicant
pool
by
virtue
having
completed
the
panel
interview with a score within the minimum accepted range.
(See
Pl.’s Opp’n Ex. 9, ECF No. 34-9) (informing Davenport that she
was in the applicant pool after having interviewed); (Bass Dep.
28:4–12,
Aug.
“recommended
1,
with
2013,
promoted
existent.
with
No.
reservations”
applicants in the pool).
being
ECF
her
34-10)
score
(noting
or
that
better
a
placed
But in reality, Davenport’s chances of
interview
score
were
nearly
non-
(Liverman Dep. 36:16–19); (see also Def.’s Mem. Supp.
16
Mot. Summ. J. Ex. 1, Attach. D) (encouraging applicants with
lower
interview
scores
professional growth).
to
pursue
other
opportunities
for
During her time in the pool, for example,
only Elliot became an assistant principal without a favorable
interview score, and only after an administrator advocated on
his behalf.7
To
boot,
principal
the
Board
applicants
with
predetermined
interview
that
scores
only
at
2.0
assistant
and
above
would qualify for further consideration, (Bozzella Dep. 114:4–7,
Sept. 3, 2013, ECF No. 34-3), requiring administrators intending
to
select
candidates
with
lower
selections to Dep. Sup. Liverman.
J. Ex. 1, at 3).
scores
to
justify
their
(Def.’s Mem. Supp. Mot. Summ.
Effectively, to qualify for the position,
assistant principal applicants needed to score at or above 2.0,
or have an administrator advocate on their behalf.
Davenport
lacked both of those critical elements and was thus unqualified.
ii.
Pretextual Analysis
The Court is sympathetic to the fact that Davenport’s case
presents
a
series
of
unfortunate
events
in
which
one
reasonably believe she was being discriminated against.
7
could
But
After Davenport retired, one other candidate with a score
lower than 2.0, Christian Thomas, was promoted to assistant
principal.
(Bozzella Dep. 115:5–19).
Thomas, like Elliot,
served satisfactorily as an administrative trainee and had a
supervising principal advocate on his behalf. (Id.).
17
even when giving her the full benefit of the doubt, and assuming
she
establishes
a
prima
facie
case
for
age
discrimination,
Davenport would not be able to meet her burden of demonstrating
that
the
failing
Board’s
to
legitimate,
promote
her
non-discriminatory
are
pretexts
for
reasons
for
discrimination.
Davenport can meet her pretextual burden “either by showing that
[the Board’s] explanation is unworthy of credence or by offering
other forms of circumstantial evidence sufficiently probative of
age discrimination.”
Mereish v. Walker, 359 F.3d 330, 336 (4th
Cir. 2004) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 256 (1981)) (internal quotation marks omitted).
The Board offers two reasons for not hiring Davenport: (1)
it only considers candidates with an interview score at 2.0 or
higher, and (2) it deviated from that policy only once and under
certain, narrow circumstances.
The policy existed at the time
Davenport initially interviewed, and she
received information
about the policy along with her interview score.
(See Def.’s
Mem. Supp. Mot. Summ. J. Ex. 1, Attach. D).
The
Board
had
also
applied
the
policy
consistently,
irrespective of age, throughout Davenport’s candidacy with the
exception
of
Elliot.
principal
position
It
despite
promoted
having
Elliot
a
lower
Principal Kennedy advocated on his behalf.
18
to
an
score
assistant
because
Principal Kennedy
had directly observed Elliot and Davenport for a year; he noted
Elliot’s strong performance as an administrative trainee and his
ability to fill the school’s particular needs.
94:12–19, 97:13–98:4).
He did not believe Davenport possessed
the same qualities.
(Id. at 99:3–20).
based
on
performance
which
are
their
job
“valid,
and
non-discriminatory
employment decision.”
(Kennedy Dep.
He made the decision
relative
bases
qualifications,
for
any
adverse
Evans v. Techs. Applications & Serv. Co.,
80 F.3d 954, 960 (4th Cir. 1996).
The Board’s reasons thus are
legitimate and non-discriminatory.
Davenport argues, however,
are
pretexts
for
the Board’s
discrimination
more
proffered
generally
reasons have changed substantially over time.
reasons
because
its
Relying solely on
her own affidavit and deposition testimony, Davenport argues the
Board initially told her she would not be promoted because of
her
experience
or
seniority,
starkly
qualifying score defense it now employs.
different
from
the
Davenport’s exclusive
reliance on her own testimony is troubling because she admits
being uncertain about, or unable to recall, critical pieces of
what Dep. Sup. Liverman said.
email
accompanying
Conversely, the Board offers the
Davenport’s
interview
score
and
testimony
from several witnesses supporting that Davenport’s low interview
score significantly hindered her chances for promotion.
19
Given
the evidence upon which the parties rely, Davenport would fail
to establish this point by preponderance of the evidence.
As
for
the
Board’s
specifically
proffered
reasons,
Davenport again argues there is no minimum interview score and
that
Elliot’s
promotion
logically
interview score argument.8
invalidates
any
minimum
The Court addressed these arguments
in discussing whether Davenport was qualified.
As the Court
previously concluded, qualified assistant principal applicants
either
need
an
administrator
interview
with
score
personal
advocate on their behalf.
at
or
above
2.0,
or
an
of
their
abilities
to
knowledge
Davenport and Elliot’s circumstances,
though different, fit that mold.
Moreover,
Elliot
was
the
better
qualified
candidate.
Elliot had Administrator I and II endorsements, and had prior
administrative experience in the Prince George’s County school
system.
(Def.’s Mem. Supp. Mot. Summ. J. Ex. 1, at 3).
He also
performed well at Meade High School, prompting Principal Kennedy
to
advocate
Administrator
on
his
I
behalf.
endorsement
(Id.).
and
Davenport
no
prior
had
only
an
administrative
experience other than as an administrative trainee.
8
Davenport also argues Principal Kennedy displayed a
discriminatory intent by calling her “slow.”
The Court
previously addressed this concern and concluded that, when read
in context, Principal Kennedy’s comments about Davenport’s
slowness betrayed no discriminatory animus.
20
Her tenure at Meade High School was rife with issues as
well.
She did not progress through the administrative trainee
program
as
handled
student
34:19).
expected,
and
there
disciplinary
were
concerns
matters.
with
(Kennedy
how
Dep.
she
33:2–
Other teachers expressed concern with her ability to
communicate effectively, and Principal Kennedy continually spoke
to her about building her skills as an administrative leader “in
lieu of just sort of being there without saying anything” when
marshaling students through the hallways.
(Id. at 35:14–36:19).
Principal Kennedy compared the two candidates and found Elliot
better qualified to meet the demands of the assistant principal
position.
the
The evidence before the Court does not support that
Board’s
reasons
for
failing
to
promote
Davenport
are
pretexts for discrimination.
For
those
reasons,
summary
judgment
is
warranted
as
to
Davenport’s age discrimination claim.
2.
In
Retaliation Claim
addition
to
her
age
discrimination
claim,
Davenport
contends the Board retaliated against her in response to her
repeated complaints.
The Court concludes that Davenport fails
to establish a prima facie case of retaliation.
The
McDonnell
Douglas
burden-shifting
applies to retaliation claims.
21
framework
Laber, 438 F.3d at 432.
also
To
establish a prima facie retaliation claim, Davenport must show:
(1) she engaged in a protected activity, (2) the Board took an
adverse employment action against her, and (3) there is a causal
link between the protected activity and adverse action.
Id.
If
Davenport establishes a prima facie case, the Board must produce
a legitimate, non-discriminatory reason for the alleged adverse
actions.
Id.
If so, Davenport must show the Board’s offered
reason is false and that it retaliated against her.
Id.
The parties agree that Davenport engaged in a protected
activity when she filed her discrimination charge with the MCHR
and EEOC.9
They diverge, however, in whether she was subjected
to adverse employment actions causally connected to her filing
the discrimination charge.
Adverse
employment
actions
“adversely
affect
the
terms,
conditions, or benefits” of employment and create such harm to
“dissuade[]
9
a
reasonable
worker
from
making
or
supporting
a
Davenport contends she engaged in protected activities
before filing her discrimination charge – namely, she complained
informally to three administrative officials about the Board’s
failure to promote her.
While informal complaints about
discriminatory treatment are protected activities, Kubicko v.
Ogden Logistics Servs., 181 F.3d 544, 551 (4th Cir. 1999), the
Court need not address Davenport’s contention because she failed
to allege retaliation in her discrimination charge and has not
exhausted her administrative remedies
for
acts occurring
beforehand.
(See Pl.’s Opp’n Ex. 5).
Similarly, though
Davenport alleges the Board did not formally train her on the
new classroom technology, that practice existed before she filed
her discrimination charge and does not appear to have increased
or changed substantially as a result of the filing.
22
charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 60 (1996) (quoting Rochon v. Gonzales, 438
F.3d
1211,
1219
(D.C.
Cir.
2006))
(internal
quotation
marks
omitted); Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th
Cir. 2007) (quoting James v. Booz-Allen & Hamilton, Inc., 368
F.3d 371, 375 (4th Cir. 2004)) (internal quotation marks and
alterations
omitted).
Whether
any
given
act
amounts
retaliation depends upon the particular circumstances.
548 U.S. at 69.
to
White,
For example, changes “in an employee’s work
schedule may make little difference to many workers, but may
matter enormously to a young mother with school children.”
Id.
In the same vein, an unfavorable evaluation could be retaliatory
if it affects a term, condition, or benefit of employment.
Von
Gunten v. Maryland, 243 F.3d 858, 867 (4th Cir. 2001), abrogated
on other grounds by White, 548 U.S. 53.
Davenport alleges two adverse actions that occurred after
she
filed
her
discrimination
charge:
(1)
Asst.
Principal
Sergeant observed Davenport in the classroom and provided an
evaluation
“highly
critical”
of
her
performance,
and
(2)
Principal Buckley attempted to counsel Davenport and present her
with
the
teachers.
procedures
Only
for
penalizing
Principal
Buckley’s
adverse employment action.
23
and
terminating
attempts
tenured
constitute
an
Asst. Principal Sergeant’s evaluation was not as “highly
critical”
aspects
as
of
provided
Davenport
claims.
Davenport’s
engaging
She
class,
noted
several
specifically
opportunities
for
that
students
Davenport
to
learn
enhanced her classroom performance by incorporating
Buckley’s previous recommendations.
positive
and
Principal
(See Def.’s Mem. Supp. Mot.
Summ. J. Ex. 3, Attach. A, ECF No. 29-4).
Other than suggesting
improvements, such as using a timer to help pace lessons and
delivering
the
lesson
plan
in
a
more
logical
manner,
Asst.
Principal Sergeant was expressly critical in only one regard.
She noted that incomplete sentences and a confusing order made
it difficult to understand Davenport’s lesson plan.
(Id. at 3).
While criticism is often hard to swallow, no reasonable employee
would view Asst. Principal Sergeant’s evaluation as deterring
that employee from alleging discrimination.
To that end, a reasonable employee would view the attempted
counseling
and
presentation
of
termination
procedures
affecting the terms, conditions, or benefits of employment.
as
The
counseling and procedures were the first among many steps in a
“plan of action” that could potentially lead to an employee’s
termination.
had
been
meetings,
(Davenport Dep. 114:3–14).
counseled
she
twice
recognized
before
the
24
for
Considering Davenport
missing
termination
departmental
procedures
and
additional counseling as an affirmative step toward losing her
job.
A reasonable employee would do the same.
As a result, the
Board subjected Davenport to an adverse employment action when
Principal Buckley attempted to counsel her and present her with
the termination procedures.
Nevertheless,
neither
action
was
causally
Davenport’s discrimination charge filing.
connected
to
To establish a causal
connection, plaintiffs must show that the employer took action
because they engaged in a protected activity.
Holland, 487 F.3d
at 218 (citing Dowe v. Total Action Against Poverty in Roanoke
Valley, 145 F.3d 653, 657 (4th Cir. 1998)).
It is not enough
that the adverse actions merely followed the protected activity
unless the two events were close in time.
F.Supp.2d 705, 715 (D.Md. 2009).
Rupert v. Geren, 605
Equally crippling is if the
employer was unaware of the protected activity.
See Balas v.
Huntington Ingalls Indus., Inc., 711 F.3d 401, 411 (4th Cir.
2013).
Asst. Principal Sergeant’s observation was one of the two
to four evaluations routinely scheduled for every teacher each
year.
(Def.’s Mem. Supp. Mot. Summ. J. Ex. 3, at 1, ECF No. 29-
4).
Principal
Buckley
attempted
to
counsel
Davenport
and
provide her the termination procedures only after she began to
miss departmental meetings regularly and garnered unsatisfactory
25
evaluations.
No. 29-3).
fateful
(Def.’s Mem. Supp. Mot. Summ. J. Ex. 2, at 2, ECF
She had already been counseled twice before the
counseling
attempt
at
issue
here.
(Id.).
Lastly,
neither administrator knew at the time that Davenport had filed
her discrimination charge.
Summ. J. Ex. 3, at 2).
adverse
employment
(Id. at 3); (Def.’s Mem. Supp. Mot.
Davenport has not shown either alleged
action
was
causally
connected
to
her
discrimination charge filing and thus fails to establish a prima
facie case for retaliation.
There being no genuine issue of material fact, the Court
will also enter summary judgment as to Davenport’s retaliation
claim.
III. CONCLUSION
For the foregoing reasons, the Board’s Motion for Summary
Judgment
(ECF
No.
29)
will
be
granted.
A
separate
Order
follows.
Entered this 6th day of February, 2014
/s/
____________________________
George L. Russell, III
United States District Judge
26
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