TABB V. BOARD OF EDUCATION OF THE DURHAM PUBLIC SCHOOLS
Filing
25
MEMORANDUM OPINION AND ORDER, signed by JUDGE WILLIAM L. OSTEEN, JR on 2/19/2019, that Defendant's Motion to Dismiss pursuant to Fed. R. Civ. P. 12 (b)(6), (Doc. 18 ), is GRANTED IN PART AND DENIED IN PART, in t hat: (1) Defendant's motion to dismiss Plaintiff's Title VII and 42 U.S.C. § 1981 claims, as those claims relate to the alleged denial of technical staffing assistance (compared to Riverside and Jordan) and the alleged non-payment of special event-related overtime is DENIED WITHOUT PREJUDICE, (2) Defendant's motion to dismiss Plaintiff's Title VII and 42 U.S.C. § 1981 claims, as those claims relate to the alleged non-payment of a technical supplement and the alleg ed denial of technical staffing assistance (compared to DSA only) is GRANTED, and (3) Defendant' motion to dismiss Plaintiff' ADA retaliation claim is GRANTED. FURTHER ORDERED that upon the filing of an Answer, this matter be set for a status conference with Magistrate Judge Joi Elizabeth Peake to schedule further deadlines in this case. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WENDELL TABB,
Plaintiff,
v.
BOARD OF EDUCATION OF THE
DURHAM PUBLIC SCHOOLS,
Defendant.
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1:17CV730
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Currently before this court is Defendant Board of Education
of the Durham Public Schools’ Motion to Dismiss Plaintiff
Wendell Tabb’s claims for employment discrimination in violation
of Title VII of the Civil Rights Act of 1964 and 42 U.S.C.
§ 1981, and retaliation in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12203(a). (Doc. 18.)
Defendant has filed a brief in support of its motion to dismiss,
(Mem. of Law in Supp. of Mot. to Dismiss (“Def.’s Mem.”) (Doc.
19)); Plaintiff has responded, (Doc. 20); and Defendant has
replied, (Doc. 21). For the reasons that follow, this court
finds that Defendant’s motion to dismiss should be granted in
part and denied in part as set forth herein.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The facts, construed in the light most favorable to
Plaintiff, are as follows. Plaintiff has been employed at
Hillside High School (“Hillside”) in Durham, North Carolina
since 1987, first as a drama teacher and then as the Theater
Director. (Amended Complaint (“Am. Compl.”) (Doc. 14) ¶¶ 24,
42.) As Theater Director, Plaintiff has produced numerous plays
and won national recognition for his work with the Hillside
drama department. (Id. ¶¶ 28, 32.)
Plaintiff is compensated by Defendant according to a salary
schedule for public school teachers and also receives a local
teacher supplement “based upon years of experience and advanced
degrees.” (Id. ¶¶ 33–34.) Plaintiff admits that both his base
compensation and local teacher supplement are equivalent to
those received by other similarly-qualified theater teachers in
the district, and therefore does not dispute these parts of his
compensation in this case. (Id. ¶¶ 35–36.) In addition to the
local teacher supplement, which is determined by experience and
education, Defendant also provides discretionary supplemental
pay to teachers who work with students outside of traditional
school hours. (Id. ¶¶ 37–40.) These supplements are based on the
nature of the work. For example, there are separate supplements
for: Theater Director work — directing and producing plays;
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Technical Theater Director (“Technical Director”) work — running
lights and sets for plays; and for faculty members who coach
athletic teams after school. (Id. ¶¶ 38–39.)
Since at least the 2005–2006 school year, Plaintiff has
been the sole drama faculty member at Hillside. 1 (Id. ¶ 42.)
Three other high schools in the Durham school district,
Riverside High School (“Riverside”), Durham School of the Arts
(“DSA”), and Jordan High School (“Jordan”), each employed a
Technical Director to assist a white Theater Director at some
point since 2005-2006. 2 (Id. ¶¶ 76–101.) A Technical Director
assists with “lighting, sound, sets and other technical duties
1
Plaintiff does not specify the year that he became Theater
Director at Hillside. To construe the Amended Complaint
favorably to Plaintiff, this court will assume that Plaintiff
was Theater Director from 2005 until the present (covering all
potentially relevant comparators).
2
Plaintiff notes that Hillside’s student body is
approximately 80% African-American, (id. ¶ 59), while Riverside,
DSA, and Jordan each have student bodies consisting of between
35.8 and 43.6% African-American students. (Id. ¶ 61.) This court
does not find the racial makeup of the respective schools
relevant to Plaintiff’s own discrimination claim. See 42 U.S.C.
§ 2000e-2(a)(1) (“It shall be an unlawful employment practice
for an employer . . . to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any
individual . . . .”) (emphasis added); Coleman v. Md. Ct. of
App., 626 F.3d 187, 190 (4th Cir. 2010) (stating that a Title
VII plaintiff must show “different treatment from similarly
situated employees outside the protected class”) (emphasis
added).
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necessary to stage high-quality theatre productions.” (Id.
¶ 42.) For example, since at least 2005, Riverside employed a
Technical Director to assist Theater Director Key Strong. (Id.
¶ 76.) From the allegations in the Amended Complaint, it appears
that Jordan employed a Technical Director to assist white
Theater Director Artie Kline at some time between 2005 and 2017.
(Id. ¶ 99.) Since 2005, DSA has continually employed two Theater
Directors, one for the middle school and one for the high
school, and a Technical Director. (Id. ¶ 90.) DSA currently
employs four faculty in its drama department, having recently
hired an additional teacher who receives a Theater Director
supplement. (Id. ¶ 92.)
Plaintiff performs the role of Technical Director in
addition to his normal work directing and managing plays. (Id.
¶ 42.) Because of these additional responsibilities, Plaintiff
consistently works large amounts of overtime. (Id. ¶ 43.)
Defendant has also requested that Plaintiff work overtime
without added pay to keep the Hillside theater open for special
events and ceremonies. (Id. ¶ 130.) Plaintiff has asked
Defendant for funding to hire a Technical Director, which
Defendant has not provided. (Id. ¶ 45.) Plaintiff has also
requested that Defendant pay him a Technical Director supplement
and extra-duty pay for special event-related overtime, which
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Defendant has refused to do. (Id. ¶ 44–49.) Defendant did
increase Plaintiff’s base pay in October 2016 and provided
Plaintiff with “an extra-duty pay form to compensate him for a
non-theatre-related short-term task” sometime in 2017. (Id.
¶¶ 167–69.)
Plaintiff’s son, Emmanuel, suffers from congenital physical
disabilities. (Id. ¶ 102.) Emmanuel attended the Durham Public
Schools until at least April 2005, when a school therapist
working with Emmanuel taped his mouth shut during class. (Id.
¶¶ 103–04.) In May 2006, Plaintiff and his wife sued the Durham
Superintendent and Board of Education on behalf of their son for
assault and intentional infliction of emotional distress, among
other claims. (Id. ¶ 105.) The case received significant press
attention and brought negative publicity to the Durham school
system. (Id. ¶¶ 107–114.) The case settled in 2009 for $75,000.
(Id. ¶ 119.) Assistant Superintendent Thomas Crabtree, who was
deposed in that lawsuit, later denied Plaintiff’s repeated
requests for a Technical Director and additional compensation.
(Id. ¶¶ 115–17, 120.)
II.
STANDARD OF REVIEW
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal,
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556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). In other words, the plaintiff must
plead facts that “allow[] the court to draw the reasonable
inference that the defendant is liable” and must demonstrate
“more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at
556–57).
When ruling on a motion to dismiss, this court must accept
the complaint’s factual allegations as true. Iqbal, 556 U.S. at
678. Further, “the complaint, including all reasonable
inferences therefrom, [is] liberally construed in the
plaintiff’s favor.” Estate of Williams-Moore v. All. One
Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.
2004) (citation omitted). Despite this deferential standard, a
court will not accept mere legal conclusions as true, and
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, [will] not suffice.”
Iqbal, 556 U.S. at 678.
Employment discrimination complaints must meet the
Twombly/Iqbal plausibility standard; however, the plaintiff is
not required to make out a prima facie case or satisfy any
heightened pleading requirements at the motion to dismiss stage.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002); McCleary- 6 -
Evans v. Md. Dep’t of Transp., State Highway Admin., 780 F.3d
582, 584–85 (4th Cir. 2015). The plaintiff is, however, required
to plead facts that permit the court to reasonably infer each
element of the prima facie case, including less favorable
treatment than similarly-situated employees outside of the
protected class. McCleary-Evans, 780 F.3d at 585; see also
Iqbal, 556 U.S. at 682–83 (plaintiff must plead facts supporting
reasonable inference of discriminatory intent); Coleman, 626
F.3d at 191 (stating that a complaint must “assert facts
establishing the plausibility” that plaintiff was terminated
based on race). Once the plaintiff has made a plausible showing
of each element, the claim will survive a motion to dismiss and
the burden then shifts to the defendant to provide “some
legitimate, nondiscriminatory reason” for the disparate
treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973).
III. FILING REQUIREMENTS AND STATUTE OF LIMITATIONS
A.
Timeliness of Plaintiff’s Claims
Plaintiff brings his employment discrimination claim in
part under Title VII of the Civil Rights Act of 1964. The
enforcement provisions of Title VII state that “[a] charge under
this section shall be filed within one hundred and eighty days
after the alleged unlawful employment practice occurred.” 42
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U.S.C. § 2000e-5(e)(1); see also Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 109–10 (2002) (stating that “a litigant
has up to 180 or 300 days after the unlawful practice happened
to file a charge with the EEOC,” depending on whether the
litigant also files their complaint with a state agency). “Each
discrete discriminatory act starts a new clock for filing
charges alleging that act.” Morgan, 536 U.S. at 113. While
Defendant does not contest the timeliness of Plaintiff’s claims,
this court will briefly examine whether Plaintiff has satisfied
this threshold requirement.
Here, Plaintiff’s discrimination claim is based on
Defendant’s denial of additional drama staff and extra
compensation, a series of discrete acts. 3 Plaintiff filed his
Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on May 12, 2016. (Am. Compl. (Doc. 14)
¶ 165.) For the 300-day period to apply, Plaintiff must allege
that he cross-filed a discrimination charge with a North
Carolina state agency in addition to filing an EEOC charge.
3
Plaintiff alleges a series of discrete acts rather than a
hostile work environment. See Morgan, 536 U.S. at 114–15
(describing the difference between these two claims, explaining
that a hostile work environment occurs when discriminatory or
offensive comments pervade the workplace). This distinction is
important because hostile work environment claims are not timebarred even if certain events fall outside the statutory period.
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Compare Morgan, 536 U.S. at 114 (“Because Morgan first filed his
charge with an appropriate state agency, only those acts that
occurred 300 days before February 27, 1995, the day that Morgan
filed his charge, are actionable.”) with Cravey v. Univ. of N.C.
at Chapel Hill, 1:17CV1014, 2018 WL 4471732 at *1, *4 (M.D.N.C.
Sept. 18, 2018) (slip op.) (stating that 180-day period applies
where plaintiff filed only an EEOC charge). Because Plaintiff
states only that he filed an EEOC charge, and does not mention a
state agency filing, this court concludes that the relevant time
period is 180 days.
Plaintiff describes multiple requests for additional
staffing and pay made to Defendant’s administrators within the
180-day window immediately prior to his EEOC filing date. (See
Am. Compl. (Doc. 14) ¶¶ 157–60.) Each refusal by Defendant
within this time period is a discrete actionable event. Morgan,
536 U.S. at 114. Therefore, this court finds that Plaintiff’s
claims are timely filed pursuant to 42 U.S.C. § 2000e-5(e)(1). 4
As for Plaintiff’s § 1981 claim, 42 U.S.C. § 1981 does not
contain an independent statute of limitations. Jones v. R.R.
Donnelly & Sons Co., 541 U.S. 369, 371 (2004). However, 28
4
The parties do not appear to dispute that Plaintiff has
satisfied Title VII’s requirement that he exhaust any
administrative remedies prior to filing suit. See Chacko v.
Patuxent Inst., 429 F.3d 505, 508–10 (4th Cir. 2005).
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U.S.C. § 1658, passed in 1990 and enacted in 1991, specifies a
four-year statute of limitations for any “civil action arising
under an Act of Congress enacted after the date of the enactment
of this section.” 28 U.S.C. § 1658. The Supreme Court has found
that, because § 1981 was expanded by legislative action in 1991
to cover racial discrimination in any term or benefit of
employment, the four-year federal statute of limitations applies
to § 1981 race discrimination claims. R.R. Donnelly, 541 U.S. at
383–84. Plaintiff lists multiple denials of technical staffing,
technical compensation and overtime in the four-year period
prior to the date when Plaintiff filed his complaint in this
matter (October 11, 2013 to October 11, 2017). (See Am. Compl.
(Doc. 14) ¶¶ 151–60.) Therefore, Plaintiff’s § 1981 claim is
also timely.
B.
Statute of Limitations
As described above, the applicable time limitation for
Plaintiff’s Title VII claim is 180 days and the statute of
limitations for Plaintiff’s § 1981 claim is four years prior to
the filing date.
For Title VII, the 180-day window “is not a jurisdictional
prerequisite to suit in federal court, but a requirement that,
like a statute of limitations, is subject to waiver, estoppel,
and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455
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U.S. 385, 393 (1982) (footnote omitted). Because the 180-day
limit is not a jurisdictional requirement, it follows that
courts should not sua sponte dismiss those claims or pieces of
claims that fall outside of the relevant time window, without
action by the defendants contesting their timeliness. See id. at
398 (describing the holding in Mohasco Corp. v. Silver, 447 U.S.
807 (1980); observing that the Supreme Court did not dismiss
plaintiff’s untimely claims sua sponte, but rather assumed
jurisdiction over all claims because the employer did not assert
the affirmative defense). In a similar way, the § 1981 statute
of limitations is an affirmative defense that must be raised by
the defendant, either in the answer or in a motion to dismiss.
Fed. R. Civ. P. 8(c)(1) (“In responding to a pleading, a party
must affirmatively state any avoidance or affirmative defense,
including . . . statute of limitations.”); see also Eriline Co.
S.A. v. Johnson, 440 F.3d 648, 653–54 (4th Cir. 2006) (“Where a
defendant has failed to raise a statute of limitations defense
by way of its answer, the defense is usually waived.”).
Claims ordinarily are not dismissed due to statute of
limitations at the motion to dismiss stage, unless “the facts
necessary to conclude that plaintiff's claims are barred by the
statute of limitations” are clearly set forth on the face of the
complaint. Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir.
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2007); see also Richmond, Fredericksburg & Potomac R.R. Co. v.
Forst, 4 F.3d 244, 250 (4th Cir. 1993) (stating that statute of
limitations “defense may be raised under Rule 12(b)(6), but only
if it clearly appears on the face of the complaint”) (citing 5A
Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357 (2d ed. 1990)).
Plaintiff includes comparisons to other district high
schools that are potentially outside of the relevant statutes of
limitation. For example, Plaintiff refers to drama staffing
prior to 2013 and, in certain places, fails to allege with
specificity when critical hiring decisions or resignations
occurred. (See, e.g., Am. Compl. (Doc. 14) ¶¶ 76–79 (describing
drama department staffing at Riverside prior to 2012, which is
outside the statutes of limitation for both Title VII and
§ 1981.)) At a later point in this case, it may become clear
through discovery that certain or all of these events cannot
form the central basis for Plaintiff’s discrimination claim. See
Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th
Cir. 1996) (stating that claims falling outside the statute of
limitations “are barred, but a discriminatory allegation may
still constitute relevant background evidence for valid
claims”).
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However, it is not clear from the face of the Amended
Complaint that any specific comparators are time-barred. 5
Defendant also failed 6 to raise statute of limitations as an
affirmative defense in its motion to dismiss. (See generally
Def.’s Mem. (Doc. 19).) While Defendant may still raise this
defense in its answer, see Fed. R. Civ. P. 8(c)(1), this court
will not presently dismiss sua sponte any claims (in whole or in
part) as untimely. See, e.g., Eriline, 440 F.3d at 654 (“[T]he
statute of limitations bears the hallmarks of our adversarial
5
As far as this court can discern, the key events from a
statute of limitations perspective are: (1) as to Riverside, the
time at which Monique Taylor was hired to replace Wes Schultz,
and (2) as to Jordan, the time at which the school’s previous
white Theater Director retired or was let go and Olivia Garcia
Putnam became Theater Director. (Am. Compl. (Doc. 14) ¶¶ 80,
99.) Plaintiff fails to state with specificity when either of
these events occurred, and each potentially occurred within the
four-year § 1981 window. Therefore, the statute of limitations
defense is not clearly apparent from the face of the complaint
and is not relevant at this stage of the proceedings. This court
finds that DSA is not an appropriate comparator, as described in
Section IV.B.2 below.
6
Defendant does argue, as to Plaintiff’s compensation
claim, that this claim is “untimely to the extent it is premised
upon events more than 300 days prior to his EEOC filing.”
(Def.’s Mem. (Doc. 19) at 13.) But because Plaintiff alleges
continuous and ongoing compensation discrimination, (see Am.
Compl. (Doc. 14) ¶¶ 41–43), Plaintiff’s claim is in fact
premised upon events occurring within the relevant time window.
See Bazemore v. Friday, 478 U.S. 385, 395-96 (1986) (“Each
week's paycheck that delivers less to a black than to a
similarly situated white is a wrong actionable under Title
VII . . . .”). This sentence also does not raise the statute of
limitations defense as to Plaintiff’s staffing claim.
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system of justice, a system in which the parties are obliged to
present facts and legal arguments before a neutral and
relatively passive decision-maker.”).
IV.
EMPLOYMENT DISCRIMINATION UNDER TITLE VII AND § 1981
Title VII and 42 U.S.C. § 1981 each prohibit employment
discrimination on the basis of race. 42 U.S.C. § 2000e-2(a)(1);
42 U.S.C. § 1981. A race-based employment discrimination claim
must assert that the plaintiff “belongs to a racial minority”
and was either not hired, fired or suffered some adverse
employment action due to his race. McDonnell Douglas, 411 U.S.
at 802; see also Thompson v. Potomac Elec. Power Co., 312 F.3d
645, 649 n.1 (4th Cir. 2002) (stating that the legal standard is
the same under both statutes).
Employment discrimination claims ordinarily deal with
“ultimate” employment decisions — the employer’s decision to
hire, fire, promote or demote an employee. Page v. Bolger, 645
F.2d 227, 233 (4th Cir. 1981). However, Title VII liability also
extends to any “adverse employment action” that had “some
significant detrimental effect on [the employee].” 7 Boone v.
Goldin, 178 F.3d 253, 256 (4th Cir. 1999). Adverse employment
7
Boone and its progeny expanded the holding in Page and
extended potential Title VII liability to a new category of
employer actions.
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actions include any “acts or harassment [that] adversely
effected ‘the terms, conditions, or benefits’ of the plaintiff's
employment.” Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir.
2001) (quoting Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d
239, 243 (4th Cir. 1997)), abrogated on other grounds by
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62, 66–
68 (2006). 8
The Fourth Circuit has further held that neither “trivial
discomforts endemic to employment” nor reassignments that cause
a modest increase in stress are adverse employment actions. See
Boone, 178 F.3d at 256 (“Absent evidence that a new position is
significantly more stressful than the last, vague allegations of
stress resulting from reassignment cannot support a claim of
discrimination under Title VII.”); see also James v. Booz-Allen
Hamilton, Inc., 368 F.3d 371, 375–76 (4th Cir. 2004) (finding
that plaintiff must show a “decrease in compensation, job title,
level of responsibility, or opportunity for promotion”) (quoting
8
Von Gunten was brought under Title VII’s anti-retaliation
provision, and the Fourth Circuit held that the adverse
employment action standard applied to retaliation claims. The
Supreme Court subsequently ruled, in response to a circuit split
on the issue, that retaliation claims should be evaluated under
a different, lower standard than discrimination claims.
Burlington N. & Santa Fe, 548 U.S. at 67. However, to the extent
that Von Gunten defines an “adverse employment action,” it
remains relevant for non-retaliatory Title VII claims to which
this standard still applies.
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Boone, 178 F.3d at 256). Title VII liability extends to the
provision of a “benefit that is part and parcel of the
employment relationship,” even if the employer “is under no
obligation to furnish [the benefit] by any express or implied
contract.” Hishon v. King & Spalding, 467 U.S. 69, 75 (1984).
Other circuits to confront the issue directly have
concluded that the discriminatory denial of overtime pay to an
employee is an adverse employment action. See, e.g., Fonseca v.
Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 848 (9th Cir.
2004) (finding that the disparate treatment of workers with
regard to overtime, including denying overtime compensation, was
an adverse employment action); Austin v. Ford Models, Inc., 149
F.3d 148, 153–54 (2d Cir. 1998) (holding that the alleged
discriminatory denial of overtime to black workers supported a
prima facie Title VII claim, despite employer’s compliance with
the Fair Labor Standards Act), abrogated on other grounds by
Swierkiewicz, 534 U.S. 506 (2002).
The judicial inquiry into whether a certain allegedly
discriminatory practice amounts to adverse employment action
normally focuses on whether the practice is sufficiently
detrimental to the employee. See, e.g., Boone, 178 F.3d at 25657. However, it is implicit in the inquiry that the employer
must initiate the practice with some affirmative action or
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imposition on the employee. All Fourth Circuit cases that
analyze this piece of a Title VII employment claim, even those
that find no adverse action, deal with events that were
initiated by the employer and where compliance by the employee
was a condition of continued employment. See Boone, 178 F.3d at
255 (employer re-assigned employee to work in a wind tunnel);
James, 368 F.3d at 376 (employer re-assigned employee and
excluded employee from meetings and conferences); Von Gunten,
243 F.3d at 867 (employer withdrew certain benefits, downgraded
and reassigned employee, and allegedly imposed various
administrative irritants upon employee). Notably, none of these
decisions involve employee hardship caused by self-imposed
standards or extra work that the employee was personally
motivated to perform.
An adverse employment action Title VII claim includes the
following elements: “(1) membership in a protected class; (2)
satisfactory job performance; (3) adverse employment action; and
(4) different treatment from similarly situated employees
outside the protected class.” Coleman, 626 F.3d at 190; see also
Love-Lane v. Martin, 355 F.3d 766, 787 (4th Cir. 2004).
A.
Adverse Employment Action
As a preliminary matter, this court finds that Plaintiff
satisfies the first two elements of the Title VII prima facie
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test: Plaintiff is African-American and thus a member of a
protected class, Love-Lane, 355 F.3d at 787, and there is no
apparent dispute as to the quality of Plaintiff’s job
performance.
1.
Technical Supplement
Plaintiff alleges that Defendant’s failure to provide a
technical supplement, which caused Plaintiff to carry a
disproportionately heavy workload relative to other district
Theater Directors, constitutes adverse employment action. In
support of this argument, Plaintiff cites several Second Circuit
cases finding an adverse employment action under similar
circumstances. See Vega v. Hempstead Union Free Sch. Dist., 801
F.3d 72, 88–89 (2d Cir. 2015) (holding that the disproportionate
assignment of Spanish-speaking students to a Hispanic teacher
created substantial additional work and was an adverse
employment action); Feingold v. New York, 366 F.3d 138, 152–53
(2d Cir. 2004) (stating that “a disproportionately heavy
workload” is an adverse employment action under Title VII).
The Fourth Circuit, however, has not explicitly
acknowledged that an employer’s assignment of disparate
workloads, standing alone, is an adverse employment action. See
Boone, 178 F.3d at 257 (stating that “modest stress not present
in the old position” is not sufficient to bring a Title VII
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discrimination claim). The Fourth Circuit has held that only
employer actions affecting the “terms, conditions, or benefits”
of employment are cognizable and only when such actions have a
verifiable and quantifiable negative impact on the employee’s
safety, stress or career prospects. See id. at 256–57
(reassignment generally must lower the employee’s responsibility
level, title, compensation, or career prospects to be
cognizable); see also James, 368 F.3d at 376; Von Gunten, 243
F.3d at 866–69 (finding that the temporary withdrawal of minor
employment benefits, strict enforcement of administrative rules
against employee, and reassignment with no obvious detrimental
effect did not amount to adverse employment action).
In any event, the adverse action must clearly be an
affirmative act by the employer and not a self-imposed standard
or an independent decision to work harder or longer than other
similarly-situated employees. See Boone, 178 F.3d at 256
(stating that Title VII applies “only against employers who are
proven to have taken adverse employment action”) (emphasis
added) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
523–24 (1993)). Here, Plaintiff has not alleged that the
technical work he performed was required as a condition of his
employment; rather, he alleges only that he has worked overtime
to handle “the lighting, sound, sets and other technical duties
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necessary to stage high-quality theatre productions.” (Am.
Compl. (Doc. 14) ¶ 42.) Plaintiff fails to allege that Defendant
expected or required him to work these hours or to produce plays
with high-quality technical features. Plaintiff’s independent
decision to produce high-quality plays, while laudable, was a
decision he made for the benefit of his students rather than a
task he performed as a requirement of his position. Plaintiff’s
internal motivation to work long hours cannot support his
discrimination claim without plausible allegations of an
employer’s coercion or requirement as a job responsibility.
Therefore, this court finds that Defendant’s alleged failure to
pay Plaintiff a technical supplement does not constitute an
adverse employment action under Title VII or § 1981. 9
2.
Technical Staffing
This court finds that the denial of technical staffing
alleges an affirmative act by the employer and thus constitutes
9
Assuming for argument that the denial of a technical
supplement is adverse action, Plaintiff has failed to allege
that a single white Theater Director was paid such a supplement
at any time. Plaintiff identifies only one similarly-situated
Theater Director without technical assistance, Olivia Garcia
Putnam at Jordan. But Putnam is white, and Plaintiff does not
allege that she is paid a technical supplement. (See Am. Compl.
(Doc. 14) ¶¶ 99–101.) Therefore, Plaintiff cannot plausibly show
that Defendant has denied him a technical supplement due to his
race.
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an adverse employment action. Where an employer chooses to
provide a benefit to certain employees and does so in an
allegedly discriminatory manner, this action is cognizable under
Title VII and § 1981.
Here, Defendant was under no obligation to provide
technical staffing assistance to any district theater
departments. However, once an employer offers a benefit to
certain employees, it assumes the obligation to do so in a nondiscriminatory manner. See Hishon, 467 U.S. at 75 (“A benefit
that is part and parcel of the employment relationship may not
be doled out in a discriminatory fashion, even if the employer
would be free under the employment contract simply not to
provide the benefit at all.”); see also Gerner v. Cty. of
Chesterfield, 674 F.3d 264, 267 (4th Cir. 2012) (stating that
“courts have consistently recognized that the discriminatory
denial of a non-contractual employment benefit constitutes an
adverse employment action”).
In Hishon, a female lawyer sued her former employer, a
large law firm, alleging gender discrimination in its decision
to deny her partnership. 467 U.S. at 71–72. While the firm was
not required to offer partnership to anyone, once it did decide
to consider associates for partnership it assumed the legal
obligation to provide this benefit in a non-discriminatory
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manner. In a similar way, once Defendant decided to employ
Technical Directors at district high schools, it became
obligated to do so without discriminating based on race. The
alleged denial of technical staff to Plaintiff based on his race
constitutes adverse employment action, at least for purposes of
plausibly pleading a discrimination claim.
3.
Special Event Overtime
This court will turn next to Plaintiff’s special eventrelated overtime claims. Plaintiff alleges that Defendant
requested he work overtime to keep the Hillside theater open for
various special district events. (Am. Compl. (Doc. 14) ¶¶ 127–
28.) Plaintiff states that he was required to perform these
tasks “as a condition of continued employment.” (Id. ¶ 127.)
Because Plaintiff has alleged that he was required to work
overtime, the detrimental effects of this overtime work can
properly be attributed to affirmative acts by Defendant. While
these actions by Defendant did not fundamentally alter the
nature of Plaintiff’s responsibilities, they were more than
“trivial discomforts” and created the type of significant stress
that the Fourth Circuit has suggested qualifies as adverse
employment action. See Boone, 178 F.3d at 256. Plaintiff was not
merely irritated by new duties or burdensome administrative
tasks — rather, Plaintiff has alleged concrete injury in the
- 22 -
form of mandatory night and weekend work that other Theater
Directors were allegedly not required to perform. This court
finds that Defendant’s repeated requests that Plaintiff perform
uncompensated overtime work for special district events, as
plausibly alleged, is adverse employment action.
B.
Plausibility
Defendant’s refusal to provide technical staff or pay
overtime for special event-related work each constitute an
adverse employment action. However, Plaintiff still must plead
facts supporting a plausible inference that he was treated
differently than similarly-situated non-black employees of
Defendant due to his race. To be clear, Title VII plaintiffs are
not required to provide direct evidence of an employer’s
discriminatory intent. Sterling v. Tenet, 416 F.3d 338, 345 (4th
Cir. 2005). Rather, Plaintiff must “allege facts sufficient to
claim that the reason [for the adverse employment action] was
because of [the plaintiff’s] race . . . .” McCleary-Evans, 780
F.3d at 585; see also Coleman, 626 F.3d at 190–91 (“[A]lthough
Coleman's complaint conclusorily alleges that Coleman was
terminated based on his race, it does not assert facts
establishing the plausibility of that allegation.”).
- 23 -
1.
Plausibility in the Race Discrimination Context
Determining plausibility in the racial discrimination
context is complex because actual proof of racial bias is often
elusive and entities may proffer seemingly legitimate pretextual
reasons for discriminatory behavior. The relevant question in
this case is whether Plaintiff has plausibly alleged that
Defendant treated similarly-situated white teachers more
favorably. See Woods v. City of Greensboro, 855 F.3d 639, 641
(4th Cir.), cert. denied sub nom., City of Greensboro v. BNT Ad
Agency, LLC, ____ U.S. ____, 138 S. Ct. 558 (2017) (“Woods”)
(“The key issue in this case is . . . whether the City would
contract with BNT on the same conditions and under substantially
the same circumstances as it would with a nonminority-owned
business.”). In this court’s view, Plaintiff must make three
specific showings to plausibly allege discrimination. First,
Plaintiff must allege the existence of nonminority comparators –
white teachers at other district schools with the same level of
responsibility as Plaintiff (i.e., Theater Directors). Second,
Plaintiff must allege that Defendant extended favorable
treatment to these nonminority comparators, in the form of
compensation or staffing assistance, that it did not extend to
Plaintiff.
- 24 -
Finally, if the plausibility inquiry is to have any
meaning, Plaintiff’s allegations must also show that
discrimination is a more likely reason for this disparate
treatment rather than any other “obvious alternative
explanation” that is present on the face of the complaint and
“justified by [] nondiscriminatory intent.” See, e.g., Iqbal,
556 U.S. at 682 (explaining that any detention policy post-9/11
would reasonably be expected to have a non-discriminatory
disparate impact on Arab Muslims because the attacks were
perpetrated by Al-Qaeda, an Islamist group); Twombly, 550 U.S.
at 567 (“[A] natural explanation for the noncompetition alleged
is that the former Government-sanctioned monopolists were
sitting tight, expecting their neighbors to do the same
thing.”); Woods, 855 F.3d at 649 (finding that a study showing
statistical disparities in number of city contracts offers based
on race of business applicants informed the “‘common sense’
analysis of whether BNT’s allegations are plausible”) (quoting
Iqbal, 556 U.S. at 679); McCleary-Evans, 780 F.3d at 588 (“[T]he
cause that [the plaintiff] asks us to infer (i.e., invidious
discrimination) is not plausible in light of the obvious
alternative explanation that the decisionmakers simply judged
those hired to be more qualified and better suited for the
- 25 -
positions.”) (citing Iqbal, 556 U.S. at 682) (internal
quotations omitted).
This court further notes the Fourth Circuit’s explicit
directive that “evidentiary determinations regarding whether the
comparators’ features are sufficiently similar to constitute
appropriate comparisons generally should not be made at” the
motion to dismiss stage. Woods, 855 F.3d at 650. For example, in
Woods, the plaintiffs claimed racial discrimination when the
City of Greensboro reneged on a potential loan to plaintiffs’
business, allegedly because of concerns about the security
guaranteeing the loan. Id. at 642–44. The plaintiffs alleged
that the City had extended loans to similarly-situated
nonminority businesses. Id. at 650. The Fourth Circuit held that
it was not appropriate to consider the specific factual
circumstances surrounding these comparator loans, such as
whether the comparators received loans through a different
funding program, whether the money was extended as a grant
rather than a loan, or whether different financial
considerations were at play, at the motion to dismiss stage.
Id.; see also Woods v. City of Greensboro, 1:14CV767, 2015 WL
8668228 at *1, *10 (M.D.N.C. Dec. 11, 2015).
This court interprets the Woods holding as follows: while
it is permissible to consider the existence of comparators
- 26 -
themselves (i.e., whether a comparator is actually a nonminority
and occupies the same position vis-à-vis the defendant as
plaintiff), it is not permissible to consider comparatorspecific facts other than racial identity or position, even if
such facts are alleged in the complaint or responsive pleadings.
However, the holding in Woods does not preclude this court from
considering obvious non-discriminatory alternative reasons for
any disparate treatment; indeed, this cannot be the case given
the numerous approving citations to Twombly and Iqbal in the
Woods opinion. See, e.g., Woods, 855 F.3d at 647, 648, 649, 652.
This court thus concludes that it may consider alternative
explanations for the alleged discriminatory conduct when those
explanations are obvious from the face of the complaint and
relate to general practices of the defendant (applicable to all
comparators) rather than to comparator-specific facts.
For example, in Woods, it would have been permissible to
consider (if alleged in the pleadings) that the City’s small
business lending program had decided to focus its funding
efforts on IT and digital technology rather than traditional
mediums such as television and radio; this general focus would
have impacted all loans extended through the program and offered
a potentially legitimate non-discriminatory reason for denying
plaintiffs’ loan. It was not, on the other hand, permissible to
- 27 -
consider comparator-specific differences such as whether the
nonminority loan in question was in fact a loan or a grant.
Here, we may consider alternative explanations for disparate
treatment when they relate to Defendant’s funding and
administrative decisions generally (i.e., a district-level
decision to establish magnet schools focused on performing
arts), but not when they are based on comparator-specific facts
(i.e., a certain school’s size or the average number of plays
produced at a certain school per year).
Applying these principles, this court will proceed to
evaluate Plaintiff’s technical staffing and special eventrelated overtime claims. In terms of staffing assistance, this
court finds that Plaintiff has identified two comparators that
provide a plausible basis from which to infer racial
discrimination. This court further finds that Plaintiff has
plausibly alleged discriminatory treatment in the payment of
overtime, but not in the volume of overtime requests.
2.
Technical Staffing
Plaintiff has alleged that he was denied a Technical
Director, despite repeated requests to Defendant, while other
white Theater Directors in the district were permitted to hire
Technical Directors. At certain times within the past thirteen
years, both Riverside and Jordan employed a white Theater
- 28 -
Director who was assisted by a Technical Director. From 2005 to
2006, Riverside employed a single white Theater Director and a
Technical Director. (Am. Compl. (Doc. 14) ¶ 76.) And from 2007
to 2012, Riverside had two white Theater Directors and a
Technical Director. (Id. ¶¶ 77–79.) Plaintiff alleges that
Jordan “[h]istorically” employed a series of white Theater
Directors who were assisted by a Technical Director, Olivia
Garcia Putnam (now the Theater Director and sole drama faculty
member). (Id. ¶¶ 98–99.) This court finds that Plaintiff has
plausibly alleged the existence of similarly-situated
nonminority comparators at both Riverside and Jordan and has
plausibly alleged that he was treated less favorably than these
comparators. Therefore, to the extent that Plaintiff’s staffing
denial claim relates to comparisons with Riverside and Jordan,
Defendant’s motion to dismiss this claim will be denied. 10
As to DSA, Plaintiff alleges that DSA has consistently
employed three to four white faculty in its drama department:
two Theater Directors, a Technical Director, and a recent hire
who receives a Theater Director supplement. (Id. ¶¶ 90–92.)
10
As noted in Section III.B, Defendant has not raised
statute of limitations as a defense at this stage of the
proceedings and this court possesses insufficient information
from the Amended Complaint to conclude that any staffing claims
are barred under a statute of limitations analysis.
- 29 -
Plaintiff states that “DSA is part of a magnet program for arts
and drama,” (Am. Compl. (Doc. 14) ¶ 94), and the DSA website
describes the school as a “[s]pecialized visual and performing
arts secondary school for grades 6-12 focused on rigorous
academics and excellence in the visual and performing arts.” 11
See Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th
Cir. 2009) (“In reviewing a Rule 12(b)(6) dismissal, [courts]
may properly take judicial notice of matters of public
record.”).
This court finds that Defendant’s decision to operate
magnet high schools focused on a particular educational area or
specialty constitutes a district-wide administrative decision
that may be considered at the motion to dismiss stage. This
decision provides an obvious alternative explanation for
increased drama department staffing at DSA: the school’s focus
11
See “Durham School of the Arts — Magnet and Lottery
Information,” available at https://www.dpsnc.net/domain/862. The
website also states that each DSA high school student is
required to focus in one of five “arts concentration areas,” one
of which is “theatre.” Id. Plaintiff alleged that DSA is a
magnet school for arts and drama, and this court has applied the
school system’s description of DSA to construe the meaning of
this term.
- 30 -
on acting and drama. 12 To the extent that Plaintiff’s staffing
denial claim is based on comparisons to DSA, Plaintiff does not
plausibly allege racial discrimination based upon different
circumstances at DSA.
3.
Special Event Overtime
Plaintiff has alleged that white Theater Directors in the
district either were not asked to perform the same volume of
overtime work or were compensated with extra-duty pay. It is not
plausible that the volume of overtime requests was itself due to
racial discrimination. Initially, this court does not
necessarily consider the number of special extracurricular
events at a given school to be within Defendant’s control, nor
does Plaintiff so allege; rather, the number of events is more
likely a factor of the number of student organizations or clubs
at a specific school. There is a disparate outcome to be sure,
but this court will not infer discriminatory intent where it is
12
This court is not swayed by Plaintiff’s assertion that
DSA “is supposed to receive funding and supplements in the same
manner as Defendant’s other schools.” (Am. Compl. (Doc. 14)
¶ 94.) This may be true, but this court finds it does not
preclude the obvious inference that Defendant’s choice to
provide increased drama department staffing to DSA was due, at
least in part, to the school’s educational focus. Whether this
choice was correct as a matter of budgetary allocation is not a
matter for this court to decide.
- 31 -
unclear whether Defendant has any direct control over the
outcome.
To plausibly state a claim for racial discrimination in
this context, Plaintiff must allege that Defendant
disproportionately held district-wide events at the Hillside
theater or moved events from other schools to Hillside, and then
forced Plaintiff to work overtime to staff these events.
Plaintiff has alleged that white district Theater Directors were
not asked to perform the same volume of overtime work, (see Am.
Compl. (Doc. 14) ¶ 132), but Plaintiff has not alleged that
Defendant disproportionately scheduled district-wide events at
Hillside. In other words, Plaintiff has provided nothing to
suggest that the disparity was due to discriminatory intent
rather than a disproportionately high number of Hillsidespecific events, which number was necessarily outside of
Defendant’s control.
This court further notes that the vast majority of special
events listed in the Amended Complaint, (Am. Compl. (Doc. 14)
¶ 130), appear to be specific to Hillside (for example, the
Hillside Pageant, the Coronation of Mr. and Miss Hillside, and
the many concerts and ceremonies listed). By this court’s count,
at most five of the ninety-two listed events are district-wide
events (the August 2014 District Human Resources Event, the
- 32 -
August 2015 District-Wide Back to School Kickoff Event, the
October 2015 Student Government Association District Event, the
November 2015 District-Wide Teaching and Learning Conference,
and the April 2016 DPS Job Fair). Plaintiff provides no
information whatsoever to guide this court in determining how
this number of district-wide events compares to other district
high schools with white Theater Directors. This court finds that
Plaintiff has failed to satisfy the second element of the
plausibility inquiry; namely, Plaintiff fails to plausibly
allege that Defendant treated nonminority comparators more
favorably than him. This court declines to blindly infer racial
discrimination, where the facts that might prove disparate
treatment are within Plaintiff’s presumptive knowledge but not
alleged in the complaint.
Plaintiff additionally alleges, in the alternative, that
white district Theater Directors were paid for overtime work
while he was not. (Am. Compl. (Doc. 14) ¶ 132). Plaintiff
provides no factual support for this allegation, alleging only
“[u]pon information and belief” that such a disparity exists.
Id. Here, the absence of factual support is understandable to
this court because these facts are likely in the exclusive
control of Defendant and the white Theater Directors (in the
form of extra-duty pay contracts or pay stubs showing overtime
- 33 -
compensation). See Pruell v. Caritas Christi, 678 F.3d 10, 15
(1st Cir. 2012) (stating that when “some of the information
needed may be in the control of defendants . . . , some latitude
has to be allowed where a claim looks plausible based on what is
known”). Further, while the number of extracurricular events
cannot be determined by Defendant’s unilateral action, the
decision to pay teachers overtime compensation surely can.
This court finds that Plaintiff has plausibly alleged that
Defendant discriminated against him by failing to compensate him
for special event-related overtime work, while compensating
white Theater Directors for similar work. Plaintiff is entitled
to discovery to determine whether factual support exists for
this allegation.
V.
ADA RETALIATION CLAIM
The ADA prohibits discrimination against any individual
because of that person’s opposition to substantive ADA
violations. 42 U.S.C. § 12203(a). “To establish a prima facie
retaliation claim under the ADA, a plaintiff must prove (1) he
engaged in protected conduct, (2) he suffered an adverse action,
and (3) a causal link exists between the protected conduct and
the adverse action.” Reynolds v. Am. Nat’l Red Cross, 701 F.3d
143, 154 (4th Cir. 2012). At the motion to dismiss stage, the
- 34 -
plaintiff must plausibly allege each element of the claim. See
Vega, 801 F.3d at 90.
To prove the first element of a prima facie claim, the
plaintiff must show he reasonably believed that the conduct he
opposed was a substantive ADA violation. Reynolds, 701 F.3d at
154. As to the second element, an “adverse action” is any action
that would have “dissuaded a reasonable worker from making or
supporting a charge of discrimination,” even if the action was
not directly tied to employment. See Burlington N. & Santa Fe,
548 U.S. at 62, 66–68 (stating that “adverse action” as used in
the ADA retaliation context is broader than a Title VII “adverse
employment action”) (quoting Washington v. Ill. Dep’t of
Revenue, 420 F.3d 658, 662 (7th Cir. 2005)); see also id. at 69
(distinguishing the failure to invite an employee to lunch on a
single occasion from the repeated exclusion of an employee from
a weekly training seminar).
The plaintiff may establish a causal link, the third
element, by illustrating close temporal proximity between the
“employer’s knowledge of protected activity” and the alleged
retaliatory action. Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
268, 273–74 (2001). However, temporal proximity alone will not
suffice where the passage of time undermines any conclusion that
the events are causally connected. See id. (holding that a
- 35 -
twenty-month gap suggested “no causality at all”; citing cases
finding no causal link when the gap was only three or four
months). In that event, the plaintiff may also establish
causation by presenting circumstantial evidence of retaliatory
intent during the intervening period between the protected
conduct and the adverse action. See, e.g., Lettieri v. Equant
Inc., 478 F.3d 640, 650–51 (4th Cir. 2007) (intervening events
showing retaliatory animus prior to actual termination provided
a causal link).
This court finds that Plaintiff has plausibly alleged the
first two elements of a prima facie retaliation claim — engaging
in protected conduct and suffering adverse action. Plaintiff
alleges, and Defendant does not appear to dispute, that
Plaintiff had a good faith belief that the conduct at issue in
his 2006 lawsuit constituted an ADA violation against his son,
Emmanuel. (Am. Compl. (Doc. 14) ¶ 194); see also 42 U.S.C.
§ 12132 (prohibiting discrimination by any public entity against
a disabled individual). Plaintiff’s lawsuit against the Durham
Public Schools was protected activity because it opposed this
violation and “aided or encouraged any other individual in the
exercise or enjoyment of[] any right granted” by the ADA. 42
U.S.C. § 12203(b); see also Haulbrook v. Michelin N. Am., Inc.,
252 F.3d 696, 701, 706 n.3 (4th Cir. 2001) (finding that
- 36 -
plaintiff’s “request for reasonable accommodation” and
subsequent threat of litigation was protected conduct). Further,
this court finds that both Defendant’s denial of technical
staffing and alleged failure to pay overtime compensation to
Plaintiff constitute adverse actions. Because these allegations
meet the Title VII adverse employment action test, as described
in Section IV.A above, they necessarily must meet the ADA’s
lower adverse action standard. 13
Plaintiff cannot, however, establish a causal link between
his 2006 lawsuit and Defendant’s failure to pay overtime for his
special event-related work based on timing alone. The relevant
point for this inquiry is the time at which Defendant became
aware of the protected activity, Plaintiff’s lawsuit identifying
an alleged ADA violation against his son. This awareness
occurred when Plaintiff filed his initial complaint against the
Durham Superintendent on May 30, 2006. See W.E.T. v. Mitchell,
No. 1:06V487 (M.D.N.C. filed May 30, 2006).
13
On the other hand, Plaintiff’s technical supplement claim
suffers from the same shortcomings here as in the discrimination
analysis. See supra Section IV.A. While the employer action
standard is lower for retaliation claims, such claims still
require action by the employer that is adverse and would deter a
reasonable worker from contesting ADA violations. See Burlington
N. & Santa Fe, 548 U.S. at 68–69 (describing affirmative acts
such as deliberate exclusion from a seminar).
- 37 -
From this court’s reading of the Amended Complaint,
Plaintiff first specifically requested to the budget committee
that he be permitted to hire a Technical Director in July 2008.
(Am. Compl. (Doc. 14) ¶ 140.) Plaintiff does allege that he
advocated for technical assistance beginning in “at least 2004,”
(id. ¶ 137), but describes no specific refusals by Defendant
prior to the July 2008 event. Plaintiff first explicitly asked
for special event overtime compensation from administrators and
the school board in July 2015 and made similar requests
throughout 2015 and early 2016. (Id. ¶¶ 152–56, 160–61.)
Defendant denied these requests. (Id.) Plaintiff does not allege
any specific refusal by Defendant that is temporally closer to
the lawsuit filing date than the July 2015 event. Further, the
earliest event included in Plaintiff’s list of unpaid overtime
work occurred in August 2014. (see id. ¶ 130.) Because
Defendant’s specific refusals to provide technical assistance or
overtime compensation came at least two years after Plaintiff
filed his lawsuit on behalf of Emmanuel, these events are not
sufficiently proximate to provide a causal link. Breeden, 532
U.S. at 273–74.
Instead, Plaintiff must show by circumstantial evidence
that Defendant took actions clearly indicating retaliatory
intent in the period between May 2006 and July 2008. Plaintiff,
- 38 -
however, alleges no specific action by Defendant during this
time period that suggests retaliatory animus. Further, Plaintiff
states without specificity that he consistently requested
technical assistance and overtime pay from Defendant starting in
2004, and that these requests were consistently denied. (Am.
Compl. (Doc. 14) ¶ 137–38.) Because Defendant apparently refused
Plaintiff’s requests both before and after the lawsuit was
filed, there appears to be no causal connection whatsoever
between Defendant’s actions and the lawsuit. Absent any drastic
change in the tenor of Defendant’s responses to Plaintiff
coinciding closely with the May 2006 filing date (evidence of
which is conspicuously absent from the Amended Complaint),
Plaintiff’s allegations do not support a plausible inference
that Defendant’s adverse actions were motivated by the lawsuit.
The mere fact that Assistant Superintendent Crabtree was
both deposed in the lawsuit and the recipient of Plaintiff’s
overtime requests does not, without specific evidence of animus,
make a causal connection plausible. Plaintiff must plead facts
supporting an inference that Crabtree forced him to work unpaid
overtime or denied him a Technical Director because of the 2006
lawsuit and associated negative publicity; for example, direct
communication from Crabtree after the lawsuit was filed showing
threatening or retaliatory intent. See Lettieri, 478 F.3d at
- 39 -
650. Plaintiff has not pled such facts. Therefore, this court
finds that Plaintiff’s ADA retaliation claim should be
dismissed.
VI.
CONCLUSION
In light of the foregoing,
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss
pursuant to Fed. R. Civ. P. 12(b)(6), (Doc. 18), is GRANTED IN
PART AND DENIED IN PART, in that: (1) Defendant’s motion to
dismiss Plaintiff’s Title VII and 42 U.S.C. § 1981 claims, as
those claims relate to the alleged denial of technical staffing
assistance (compared to Riverside and Jordan) and the alleged
non-payment of special event-related overtime is DENIED WITHOUT
PREJUDICE, (2) Defendant’s motion to dismiss Plaintiff’s Title
VII and 42 U.S.C. § 1981 claims, as those claims relate to the
alleged non-payment of a technical supplement and the alleged
denial of technical staffing assistance (compared to DSA only)
is GRANTED, and (3) Defendant’s motion to dismiss Plaintiff’s
ADA retaliation claim is GRANTED.
IT IS FURTHER ORDERED that upon the filing of an Answer,
this matter be set for a status conference with Magistrate Judge
Joi Elizabeth Peake to schedule further deadlines in this case.
- 40 -
This the 19th day of February, 2019.
____________________________________
United States District Judge
- 41 -
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