Pugh v. Equal Employment Opportunities Commission et al

Filing 65

MEMORANDUM OPINION (c/m to Plaintiff 2/12/16 sat). Signed by Judge Deborah K. Chasanow on 2/12/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ADRIAN D. PUGH
:
v.

:

Civil Action No. DKC 13-2862

:
MONTGOMERY COUNTY BOARD
OF EDUCATION

:
MEMORANDUM OPINION

Presently

pending

and

ready

for

resolution

in

this

employment discrimination case are the following motions: (1) a
motion for summary judgment filed by Plaintiff Adrian D. Pugh
(“Plaintiff”) (ECF No. 46); and (2) a cross-motion for summary
judgment filed by Defendant Montgomery County Board of Education
(“Defendant”) (ECF No. 59).
to deny a jury trial.

Also pending is Plaintiff’s motion

(ECF No. 50).

The relevant issues have

been briefed, and the court now rules, no hearing being deemed
necessary.

Local

Rule

Defendant’s

motion

for

105.6.

For

the

summary

judgment

following

reasons,

will

granted.

be

Plaintiff’s motion for summary judgment will be denied, and her
motion to deny a jury trial will be denied as moot.
I.

Background
A.

Factual Background

Plaintiff,

an

African

American

woman,

has

worked

for

Defendant as a paraeducator, or teacher’s assistant, since 2004.
(ECF No. 59-3 ¶ 5).

This case arises out of two instances in

which

Defendant

denied

Plaintiff’s

application

for

a

teacher

position.

Because Plaintiff was not certified as a teacher, she

attempted

to

obtain

from Defendant.

a

Conditional

(Id. ¶ 7).

Degree

Certificate

(“CDC”)

A CDC is a temporary two-year

provisional status for otherwise uncertified teachers who are
pursuing their certification.

Maryland law states that “[a]

local school system shall request a [CDC] only if a local school
system is unable to fill a position with a qualified person who
holds a professional certificate.”
(“COMAR”) 13A.12.01.08A(1).

Code of Maryland Regulations

In light of applicable state and

federal law requiring or incentivizing the hiring of certified
teachers, Defendant’s goal was to reduce or eliminate the use of
CDCs and hire certified teachers whenever possible.
No. 59-7).

(See ECF

Accordingly, Defendant hired 143 teachers with a CDC

in 2006, but only 46 in 2008.

(ECF No. 59-3 ¶ 13).

Because of

this desire to limit the use of CDCs, Defendant requires that an
applicant for a CDC fulfill the following five criteria: (1)
three references with ratings of “highly effective,” including a
reference

from

the

most

recent

or

current

supervisor;

(2)

content, knowledge, or background in the relevant subject area;
(3)

some

completion

form
or

of
near

prior

relevant

completion

of

teaching
an

experience;

educational

(4)

partnership

program; and (5) a “highly recommend” interview score or “highly
effective” marks from all references.
2

(Id. ¶ 10).

Plaintiff first applied for a CDC in November 2008, in an
attempt to fill a vacancy for a special education teacher at
Albert Einstein High School.

(Id. ¶ 15).

The position was

(Id. ¶ 17).

On April 9, 2009,

filled by a certified teacher.

Plaintiff wrote to Susan Marks, the Associate Superintendent for
Human Resources, “to request [her] consideration for granting
[Plaintiff]

provisional

[e]ducation.”
special

certification

(ECF No. 59-5).

education,

but

to

teach

[s]pecial

Plaintiff sought a CDC to teach

noted

that

she

would

“welcome

the

opportunity to teach Spanish as well” given her background and
education.

(Id.

Plaintiff’s

request

at

2).

because

In
of

response,
“the

Ms.

number

of

Marks

denied

credits

that

[Plaintiff] still need[ed] to take to complete [her] coursework”
to

receive

her

certification.

(ECF

No.

59-6).

Ms.

Marks

informed Plaintiff about Defendant’s goal of hiring 100 percent
certified teachers, and encouraged her to “continue to pursue
[her] goal of becoming a teacher” with Defendant, particularly
because Plaintiff appeared close to obtaining certification for
Spanish.

(Id.).

Plaintiff

did

not

provide

Defendant

with

documentation

that she was working towards certification, instead continuing
to pursue a CDC.
with

additional

references.

In July 2009, Plaintiff provided Defendant
information,

including

(ECF No. 59-7).

information

regarding

On July 24, Linda Johnson, a
3

staffing
pursue

coordinator

for

certification

certified

Defendant,

because

teachers.

of

encouraged

Defendant’s

(Id.).

Ms.

Plaintiff

policy

Johnson

to

favoring

noted

that,

particularly due to the economic situation in 2009, Defendant
had far more teachers applying “who hold or are eligible for
standard

teaching

usual.”

(Id.).

certificates

and

far

less

positions

than

On August 3, Plaintiff wrote to Larry Bowers,

Defendant’s Chief Operating Officer, requesting approval for a
CDC.

(ECF No. 59-8).

Also in August, Ms. Johnson e-mailed Ms.

Marks to discuss Plaintiff’s requests.

(ECF No. 59-9).

Ms.

Johnson noted that in “every other case” of a paraeducator being
hired by Defendant as a teacher, “there has been a principal
advocating” on the paraeducator’s behalf, but this was not the
case

with

Defendant

Plaintiff.
had

(Id.).

“candidates

Ms.

holding

Johnson
or

also

eligible

noted

for

that

standard

certificates in the pool who also have stronger references.”
(Id.).
After corresponding with Ms. Johnson, Ms. Marks obtained
Plaintiff’s

remaining

references

from

Nelson

McLeod,

the

principal of a school at which Plaintiff had previously worked,
and from Tenaeya Rankin, a teacher with whom Plaintiff worked.
Mr.

McLeod

effectively
“[b]ased

on

wrote
within
two

that
the

Plaintiff
special

incidents

with
4

“was

friendly

education
staff,

team,”

[he

did]

and

worked

but

that

NOT

feel

comfortable recommending her.”

(ECF No. 59-10).

Ms. Rankin

completed a recommendation form that ranked various aspects of
Plaintiff’s “performance criteria” and “personal qualities” with
a

ranking

of

highly

effective

or

excellent;

effective

or

acceptable; not effective or not acceptable; or no basis for
judgment

or

Plaintiff

do

not

received

know.

Concerning

zero

“highly

performance

effective”

criteria,

ratings,

one

“effective” rating, two “not effective” ratings, and seven “no
basis for judgment” ratings.
qualities,

Plaintiff

(ECF No. 59-11).

received

zero

As to personal

“excellent”

ratings,

four

“acceptable” ratings, four “not acceptable” ratings, and one “do
not know” rating.
a

question

asking

[Plaintiff]

(Id.).

would

“Professional

if

Ms. Rankin also noted, in response to

she

not

knew

make

“of
a

relationships

any

specific

desirable

reason

staff

with

(Id. at 1).

member”:

leadership;

interpersonal communication skills.”

lack

of

Ms. Rankin

further relayed that:
[Plaintiff],
at
times,
lacks
appropriate boundaries in her communication
with leadership – whether classroom teacher,
resource
teacher,
or
administration.
Further,
her
rapport
with
students,
specficially [sic] students with behavior
issues, does not always positively motivate
students to regain focus and/or decrease
negative time spent out of the classroom.
Her involvement in such cases has often
invoked negative reinforcement.
If she
returns to [the school] as a para-educator,
her duties will not include serving students
5

why

during I.S.S. (in-school suspension) as this
has not proven to be successful.
(Id. at 2).
Tsonis,
Ms.

Ms. Marks also obtained a reference from Panagiota

another

Tsonis

school

informed

principal
Ms.

with

whom

that

she

Marks

[Plaintiff] as a teacher candidate.”

Plaintiff
would

worked.

“recommend

(ECF No. 61-8).

On September 29, Plaintiff wrote Ms. Marks to “follow[] up
to see what has developed from [her] contacting other references
for [Plaintiff’s] application for teaching.”

(ECF No. 59-12).

Ms. Marks responded:
This e-mail is a follow-up to our
meeting and correspondence regarding your
request for conditional certification.
I
have reviewed all your documentation and I
also contacted the additional references
that you provided me. At this time, I will
not
support
granting
you
conditional
certification to be considered for special
education positions [with Defendant].
I know that you have worked hard to
complete your coursework to become a special
education teacher, however, I believe that
the
student
teaching
experience
or
an
experience as a long-term substitute teacher
is critical to becoming a teacher [with
Defendant]. I suggest you consider applying
to one of our partnership programs which
will allow you to have a student intern
experience.
(Id.).

6

B.

Procedural History1

On

March

3,
with

questionnaire”

2010,
the

Commission (“EEOC”).

Plaintiff
U.S.

Equal

completed

an

Employment

(ECF No. 61-3).

“intake

Opportunity

On or about June 28,

Plaintiff filed a charge of discrimination with the EEOC.
No.

59-13).

with

Ms.

Plaintiff’s

Marks

in

August

charge
and

references

September

mention her November 2008 application.2

her

2009,

(ECF

communication
but

does

not

On June 27, 2013, the

EEOC dismissed the charge and advised Plaintiff of her right to
sue.

(ECF No. 1-2).
Plaintiff, proceeding pro se, sued Defendant and the EEOC

in this court on September 27, 2013 alleging that Defendant
failed to hire her based on race in violation of Title VII of
the Civil Rights Act, 42 U.S.C. § 2000e et seq. (“Title VII”).
(ECF No. 1).

The court issued a memorandum opinion and order on

June 30, 2014, dismissing the claims against the EEOC.
Nos. 27; 28).

(ECF

On May 28, 2015, after Plaintiff corrected issues

with service on Defendant, the court denied Defendant’s motion
to dismiss.

(ECF Nos. 42; 43).

On June 29, Plaintiff filed the

pending motion for summary judgment (ECF No. 46), which is fully

1

Additional procedural history is provided
memorandum opinion. (ECF No. 42, at 2-3).
2

in

a

prior

Although the charge also included allegations
retaliation, this case includes no such allegations.
7

of

briefed (ECF Nos. 54; 55).

The next day, Plaintiff filed the

pending motion to deny a jury trial.

(ECF No. 50).

Following

discovery, Defendant filed the pending cross-motion for summary
judgment.

(ECF

No.

59).3

Plaintiff

filed

a

response

and

supplemental response (ECF Nos. 61; 62), Defendant replied (ECF
No. 63), and Plaintiff filed a surreply (ECF No. 64).

3

In its motion for summary judgment, Defendant argues for
dismissal of this action because Plaintiff failed to attend her
deposition. (ECF No. 59-1, at 10-11). This argument played no
role in the court’s decision to enter summary judgment for
Defendant. Federal Rule of Civil Procedure 37(d)(1)(B) requires
that a party moving for sanctions as a result of the other
party’s failure to attend its own deposition “include a
certification that the movant has in good faith conferred or
attempted to confer with the party failing to act in an effort
to obtain the answer or response without court action.”
Defendant has neither included a certification nor shown such a
good faith effort, and, particularly in light of Plaintiff’s pro
se status, it is disappointing that defense counsel refused even
to entertain Plaintiff’s request to reschedule her deposition or
compromise in any way. (See ECF No. 61-26).
Moreover, in the case Defendant cites to support its
request for dismissal, Judge Quarles ultimately dismissed the
case only after the plaintiff failed to attend her deposition on
multiple occasions, including in defiance of a court order,
showing a complete lack of intent to be deposed over the course
of a highly contentious year of discovery disputes. See Rogler
v. Alexandra M. Fotos, No. WDQ-14-228, ECF No. 209 (Jan. 21,
2016). Judge Quarles noted that “‘only the most flagrant case,
where the party’s noncompliance represents bad faith and callous
disregard for the authority of the district court and the Rules,
will result in the extreme sanction of dismissal.’”
Id. at 21
(quoting Mut. Fed. Sav. & Loan Ass’n v. Richards & Assocs.,
Inc., 872 F.2d 88, 92 (4th Cir. 1989)). Plaintiff’s actions here
do not reach the requisite level of bad faith and callousness to
warrant dismissal.
8

II.

Standard of Review
A motion for summary judgment will be granted only if there

exists no genuine dispute as to any material fact and the moving
party

is

entitled

to

judgment

as

a

matter

of

law.

See

Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

250

(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
Summary judgment is inappropriate if any material factual issue
“may reasonably be resolved in favor of either party.”

Liberty

Lobby, 477 U.S. at 250; JKC Holding Co. LLC v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
The moving party bears the burden of showing that there is
no genuine dispute as to any material fact.

However, no genuine

dispute of material fact exists if the nonmoving party fails to
make a sufficient showing on an essential element of his or her
case as to which he or she would have the burden of proof.
Celotex, 477 U.S. at 322–23.

Therefore, on those issues on

which the nonmoving party has the burden of proof, it is his or
her responsibility to confront the summary judgment motion with
an “affidavit or other evidentiary showing” demonstrating that
there is a genuine issue for trial.

See Ross v. Early, 899

F.Supp.2d 415, 420 (D.Md. 2012), aff'd, 746 F.3d 546 (4th Cir.
2014).

“A mere scintilla of proof . . . will not suffice to

prevent summary judgment.”

Peters v. Jenney, 327 F.3d 307, 314
9

(4th Cir. 2003).
significantly

“If the evidence is merely colorable, or is not

probative,

summary

judgment

may

be

granted.”

Liberty Lobby, 477 U.S. at 249–50 (citations omitted).

A “party

cannot create a genuine dispute of material fact through mere
speculation or compilation of inferences.”

Shin v. Shalala, 166

F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).

Indeed,

this court has an affirmative obligation to prevent factually
unsupported

claims

and

defenses

from

going

to

trial.

See

Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993) (quoting
Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.
1987)).

Although

latitude,

the

pro

above

se

litigants

standards

apply

are
to

to

be

everyone.

given

some

Thus,

as

courts have recognized repeatedly, even a pro se party may not
avoid

summary

judgment

speculative arguments.

by

relying

on

bald

assertions

and

See Smith v. Vilsack, 832 F.Supp.2d 573,

580 (D.Md. 2011) (citing cases).
“When

cross-motions

for

summary

judgment

are

before

a

court, the court examines each motion separately, employing the
familiar standard under Rule 56 of the Federal Rules of Civil
Procedure.”

Desmond v. PNGI Charles Town Gaming, LLC, 630 F.3d

351, 354 (4th Cir. 2011).

The court must deny both motions if it

finds there is a genuine dispute of material fact, “[b]ut if
there is no genuine issue and one or the other party is entitled
to prevail as a matter of law, the court will render judgment.”
10

10A Charles A. Wright, et al., Federal Practice & Procedure §
2720 (3d ed. 1998).
III. Analysis
A.

Administrative Exhaustion and Timeliness

Generally, under Title VII, a charge of discrimination must
be

filed

unlawful

with

the

EEOC

employment

within

practice

180

days

occurred.

after
42

the

U.S.C.

alleged
§

2000e-

5(e)(1); Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618,
621

(2007)

(“[T]he

time

for

filing

a

charge

of

employment

discrimination with the [EEOC] begins when the discriminatory
act

occurs.”).

In

a

“deferral”

period is extended to 300 days.

jurisdiction,

however,

the

See Edelman v. Lynchburg Coll.,

300 F.3d 400, 404 n.3 (4th Cir. 2002); Prelich v. Med. Res.,
Inc.,

813

deferral

F.Supp.2d
state

applies.

under

654,

661

Title

(D.Md.

VII,

and

2011).
the

Maryland
300-day

is

a

timeframe

See, e.g., Burgess v. Sys. High Corp., No. ELH-14-

3895, 2015 WL 6956516, at *3 (D.Md. Nov. 10, 2015) (citations
omitted).
of

The statutory window applies to any “discrete acts”

discrimination,

“such

as

termination,

failure

denial of transfer, or refusal to hire . . . .

to

promote,

Each incident of

discrimination and each retaliatory adverse employment decision
constitutes
practice.’”
114. (2002).

a

separate

actionable

‘unlawful

employment

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
“Charges filed outside [the statutory window] are
11

barred,

but

a

discriminatory

allegation

may

still

relevant background evidence for valid claims.”
Applications
(citing

&

Serv.

United

Air

Co.,

80

Lines,

F.3d

Inc.

v.

954,

962

Evans,

constitute

Evans v. Techs.
(4th

431

Cir.

U.S.

1996)

553,

558

(1977)).
This suit relates to two allegations of discrimination: the
failure to hire for the special education opening in November
2008; and the failure to hire Plaintiff or grant her a CDC
throughout 2009, which culminated with Ms. Marks’s e-mail on
September 29.
be

Plaintiff argues that no part of her claim should

time-barred

“on-going

discrimination”

that encompasses actions taken in November 2008.

(ECF No. 61-1,

at 2-3).

because

she

alleges

Plaintiff also notes that the court denied Defendant’s

timeliness argument when ruling on its motion to dismiss.

In

ruling on Defendant’s motion to dismiss, the court was required
to take the facts alleged in the complaint as true.
so,

the

appeared

undersigned
to

allege

noted
that

that
it

the

took

facts

until

in

the

September

In doing
complaint
2009

for

Defendant to deny Plaintiff the position for which she applied
in November 2008.
the

summary

(ECF No. 42, at 8-9).

judgment

stage

paints

The current record at
a

different

picture.

Plaintiff is asserting discriminatory failure to hire based on
two discrete acts, such that the continuing violation doctrine
does not apply.

Janey v. N. Hess Sons, Inc., 268 F.Supp.2d 616,
12

622-23

(D.Md.

2003)

(not

applying

the

continuing

violation

doctrine to discrete failure to promote or hire allegations).
In November 2008, Plaintiff applied for a specific vacancy and
was denied in favor of a certified teacher.

Then, throughout

2009, Plaintiff worked with Defendant to obtain a CDC in an
attempt to place her name and application into a more generic
applicant

pool.

Plaintiff

for

Accordingly,

the

vacancy

Defendant’s

in

November

failure

2008

is

to

hire

time-barred

because it occurred more than 300 days before Plaintiff filed
her EEOC charge in June 2010.4
B.

McDonnell Douglas

Title VII prohibits status-based discrimination based on an
employee’s
religion,

personal
sex,

or

characteristics
national

origin,”

such
42

as
U.S.C.

“race,

color,

§ 2000e-2(a);

Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2525
(2013).

To survive a motion for summary judgment, a plaintiff

must provide evidence of intentional discrimination through one
of two avenues of proof: (1) direct or circumstantial evidence
that discrimination motivated the employer’s adverse employment
decision; or (2) the McDonnell Douglas “pretext framework” that
requires

a

plaintiff

to

show

that

4

“the

employer’s

proffered

Plaintiff points to her EEOC Intake Questionnaire as proof
that she filed a charge in March 2010.
(ECF No. 61-3).
Even
assuming arguendo that this was a proper charge, Plaintiff’s
claims relating to November 2008 would still be time-barred.
13

permissible reason for taking an adverse employment action is
actually

a

pretext

for

[discrimination].”

Hill

v.

Lockheed

Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004)
(en banc) (citing Texas Dep’t of Comm. Affairs v. Burdine, 450
U.S. 248, 252-53 (1981); McDonnell Douglas Corp. v. Green, 411
U.S.

792,

McDonnell

807

(1973)).

Douglas

Here,

framework

Plaintiff

because

she

must

rely

offers

no

on

the

direct

evidence.
Under the McDonnell Douglas framework, once the plaintiff
meets her initial burden of establishing a prima facie case for
discrimination, “the burden shifts to the employer to articulate
a

legitimate,

nondiscriminatory

employment action.”

reason

for

Hill, 354 F.3d at 285.

the

adverse

Once the employer

meets this burden of production, “the burden shifts back to the
plaintiff to prove by a preponderance of the evidence that the
employer’s stated reasons ‘were not its true reasons, but were a
pretext for discrimination.’”

Id. (quoting Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).

“The final

pretext inquiry merges with the ultimate burden of persuading
the

court

that

[the

plaintiff]

has

been

the

victim

of

intentional discrimination, which at all times remains with the
plaintiff.”

Merritt v. Old Dominion Freight Line, Inc., 601

F.3d 289, 294 (4th Cir. 2010) (internal quotation marks omitted).

14

1.

Prima Facie Case

To establish a prima facie case of discriminatory failure
to hire based on race, Plaintiff must show that: (1) she is a
member

of

a

protected

class;

(2)

the

employer

had

an

open

position for which she applied; (3) she was qualified for the
position;

and

circumstances
discrimination.

(4)

she

giving

was
rise

rejected
to

for

an

the

inference

position
of

under

unlawful

Brown v. McLean, 159 F.3d 898, 902 (4th Cir.

1998) (citations omitted); see Burdine, 450 U.S. at 253, 253
n.6.

Plaintiff has failed to establish a prima facie case of

discrimination because she has not put forth evidence sufficient
to satisfy the third and fourth prongs.5
Defendant argues that Plaintiff was not qualified for a
teaching position because she was not a certified teacher and
did not meet the requirements for obtaining a CDC.

Plaintiff

counters that Defendant’s arguments conflate the requirements
for becoming a certified teacher with those for obtaining a CDC,
and she was qualified for a CDC.

(ECF No. 61-1, at 5-6).

Plaintiff’s assertions do not overcome the undisputed evidence
in the record that she did not meet Defendant’s qualifications
5

Defendant asserts that Plaintiff did not actually apply to
an open position during in 2009, failing the second prong as
well.
Plaintiff counters that Defendant’s screening process
prevented her from even submitting her application to the
database.
(ECF No. 61-1, at 15-16).
It is not necessary to
decide this issue, however, because Plaintiff has failed to
satisfy the third and fourth prongs.
15

for

a

CDC.

Most

glaringly,

Plaintiff

did

not

references with ratings of “highly effective.”
received

no

references

ratings

of

conveyed

“highly

serious

effective,”

obtain

three

In fact, she

and

two

reservations.

of

her

Plaintiff’s

conclusory attempt to undermine the references’ credibility is
unavailing and irrelevant.
met

Defendant’s

criteria

Thus, Plaintiff’s assertion that she
for

a

CDC

is

not

supported

by

the

See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th

evidence.

Cir. 2000); Mungro v. Giant Food, Inc., 187 F.Supp.2d 518, 522
(D.Md.

2002)

(“What

matters

is

not

the

employee’s

self-

perception regarding the quality of his [qualifications], but
the perception of the decision-maker.” (citation and internal
quotation marks omitted)).

Plaintiff’s citation to “evaluation

forms” from September 2010 and February 2013 noting that she
“meets

competency”

is

not

relevant

to

her

qualification

and

references in 2009, and it does not establish that she received
ratings

of

“highly

Nothing

in

the

effective.”

record

(ECF

indicates

Nos.

that

61-14;

Plaintiff

61-17).
satisfied

Defendant’s criteria for a CDC.
In
that

addition,

she

giving

was

rise

Plaintiff

rejected
to

an

for

has

not

the

position

inference

of

shown

facts
under

unlawful

establishing
circumstances

discrimination.

Plaintiff’s primary contention is that “[w]hite and/or [n]onAfrican-American

[c]omparators

are
16

hired

consistently”

with

CDCs.

(ECF No. 61-1, at 17-18).

Plaintiff puts forth no facts,

however, to support this assertion.

Materials cited by both

parties show that, in 2008-2009, Defendant hired 46 teachers
with a CDC, 10 of whom were African American.

(ECF Nos. 59-4;

61-4).

that

Nothing

in

the

record

indicates

these

46

individuals are similarly situated to Plaintiff, in that they
have

similar

qualifications.

See

Dones

F.Supp.2d 659, 669 (D.Md. 2013) (citing

v.

Donahoe,

987

Lightner v. City of

Wilmington, 545 F.3d 260, 265 (4th Cir. 2008)).

In her letter to

Mr. Bowers, Plaintiff asserts that she “personally know[s] of at
least

5

people

who

have

taught

and/or

are

[Defendant] under provisional certification.
[Plaintiff’s]

situation,

these

people

teaching

with

Without knowing

have

shared

with

[Plaintiff] how easily they were hired to teach provisionally.”
(ECF No. 59-8, at 3).

Plaintiff has not put forth any evidence

regarding these five individuals or any individual who worked
with a CDC, and such conjecture is not sufficient to satisfy her
burden at the summary judgment stage.
2.

Legitimate, Non-Discriminatory Reason and Pretext

Even if Plaintiff could establish a prima facie case of
discrimination,
legitimate,

she

has

failed

non-discriminatory

pretext for discrimination.

to

reason

show
for

that
not

Defendant’s

hiring

her

is

Defendant has put forth evidence

supporting its stated legitimate reason of not hiring Plaintiff,
17

which is that she was not certified and did not meet Defendant’s
criteria to obtain a CDC.

Defendant was strongly incentivized

by statute to hire certified teachers.

(ECF No. 59-3 ¶¶ 9-13).

Thus, Defendant established strict criteria for potential CDC
applicants, criteria which Plaintiff did not meet.

(Id. ¶ 10).

Defendant made this clear in all communications with Plaintiff.
(ECF Nos. 59-6; 59-7; 59-12).

Defendant’s strong preference to

hire certified teachers is further supported by a letter from
Mr. Bowers to all instructional data assistants, paraeducators,
and substitute teachers encouraging “aspiring teachers” to apply
for

scholarships

to

(ECF No. 61-24).

assist

them

in

obtaining

certification.

Defendant has met its burden of showing a

legitimate, non-discriminatory reason for not hiring Plaintiff.
In order to show pretext, Plaintiff must “prove both that
the

reason

reason.”

was

false,

and

that

discrimination

was

the

real

Adams v. Trustees of the Univ. of N.C.-Wilmington, 640

F.3d 550, 560 (4th Cir. 2011) (emphases in original) (citation
and

internal

quotation

marks

omitted).

Plaintiff’s

pretext

argument is based on the fact that Defendant hired 46 teachers
with CDCs.

For many of the same reasons as discussed above in

relation to Plaintiff’s prima facie case, the record does not
support such an allegation of pretext.
CDCs

were

African

American,

and

Ten of the teachers with

Plaintiff

has

presented

no

evidence showing that any of the teachers with CDCs did not meet
18

Defendant’s

criteria

situated to Plaintiff.

for

a

CDC

or

were

otherwise

similarly

There is simply no evidence showing that

either Defendant’s policy to reduce the number of teachers with
CDCs

or

its

application

to

Plaintiff

pretext for discrimination.
relying

in

part

on

was

disingenuous

or

a

The record shows that Defendant,

Plaintiff’s

references,

believed

that

Plaintiff did not satisfy the criteria for obtaining a CDC.
“[A]

plaintiff’s

own

assertions

of

discrimination

in

and

of

themselves are insufficient to counter substantial evidence of
nondiscriminatory

reasons

for

an

adverse

employment

action."

Hawkins, 203 F.3d at 281 (citation and internal quotation marks
omitted).

Accordingly,

Plaintiff

has

failed

to

show

that

Defendant’s legitimate, non-discriminatory reasons for declining
her requests for a CDC were pretext for discrimination.
IV.

Conclusion
For the foregoing reasons, the motion for summary judgment

filed by Defendant will be granted.

The motion for summary

judgment filed by Plaintiff will be denied, and her motion to
deny a jury trial will be denied as moot.

A separate order will

follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

19