TABB V. BOARD OF EDUCATION OF THE DURHAM PUBLIC SCHOOLS
Filing
56
MEMORANDUM OPINION AND ORDER, signed by JUDGE WILLIAM L. OSTEEN, JR on 9/28/20, that Defendant's Motion for Summary Judgment, (Doc. 38 ), is GRANTED. FURTHER ORDERED that this case is DISMISSED WITH PREJUDICE. A judgment reflecting this Memorandum Opinion and Order will be entered contemporaneously herewith.(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
Before the court is the Motion for Summary Judgment filed
by Defendant Board of Education (the “Board”) of the Durham
Public Schools (“DPS”). (Doc. 38.) Plaintiff Wendell Tabb, a
drama teacher in the DPS system, is suing Defendant for
disparate treatment under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000 et seq., and 42 U.S.C. § 1981. Plaintiff
alleges that Defendant denied him technical support staffing and
extra-duty pay based on his race. For the reasons stated herein,
the court finds Defendant’s motion should be granted.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A majority of the facts are described here, but additional
relevant facts will be addressed as necessary throughout the
opinion. The majority of facts are not disputed; any material
factual disputes will be specifically addressed in the relevant
analysis. The facts described in this summary are taken in a
light most favorable to Plaintiff. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). As explained
more fully below, see infra Section III.A.1.b.iii, the statute
of limitations has run on any § 1981 claims that occurred and
of which Plaintiff was aware prior to August 9, 2013. Therefore,
the relevant time period for Plaintiff’s claims is August 2013
to August 2017.
A.
The Parties
Plaintiff Wendell Tabb is an African-American male and is a
teacher and the Director of the Drama Department at Hillside
High School (“Hillside”) in Durham, North Carolina. (Verified
Amended Complaint (“Am. Compl.”) (Doc. 14) ¶¶ 19, 25.)1 Plaintiff
has been a drama teacher at Hillside since 1987. (Id. ¶ 24.) By
all accounts and any measure, Plaintiff has had an incredibly
successful career as a drama teacher. (See, e.g., Pl.’s Resp. to
Def.’s Mot. for Summ. J. (“Pl.’s Resp.”) (Doc. 40), Deposition
of William Terrence Logan, III (“Logan Dep.”) (Doc. 40-4) at 18,
During the discovery period, Plaintiff verified his
Amended Complaint. (Doc. 40-12.)
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222; Deposition of James Franklin Key, II (“Key Dep.”) (Doc.
40-5) at 32; Deposition of Mary Wild Casey (“Casey Dep.”) (Doc.
40-8) at 99; Deposition of Minnie Mae Forte-Brown (“Forte-Brown
Dep.”) (Doc. 40-9) at 24.) Plaintiff has received numerous
honors and awards, to include an honorable mention during the
Tony Awards. (Casey Dep. (Doc. 40-8) at 132.) The Board recently
named Hillside’s theater and stage after Plaintiff. (Forte-Brown
Dep. (Doc. 40-9) at 36.)
Defendant Board of Education of the Durham Public Schools
is a corporate entity under North Carolina law with the capacity
to sue and be sued. N.C. Gen. Stat. § 115C-40. Defendant employs
or employed the members of the Board, superintendents, assistant
superintendents, deputy superintendents, chief officers,
directors, and high school principals relevant to this action.
(Am. Compl. (Doc. 14) ¶ 17.)
B.
Technical Theater Position
Until recently, Plaintiff provided theater instruction as
well as technical theater support for the drama program at
Hillside High School (“Hillside”). (Logan Dep. (Doc. 40-4) at
All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
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42–43, 113.) Hillside hired a technical theater teacher on
October 21, 2019. (Def.’s Mot. for Summ. J. (“Def.’s Mot.”)
(Doc. 38), Affidavit of Arasi Adkins (“Adkins Aff.”) (Doc. 38-8)
¶ 12.) Plaintiff is pursuing this action to recover $251,328 in
pay he claims he is owed for technical theater work he did
during the period Defendant denied him technical support. (Doc.
40-13 at 1.)
Technical theater (or “theater tech”) tasks include
lighting, set construction, sound, and other various support
tasks needed to produce a play. (Logan Dep. (Doc. 40-4) at 42–
43.) For almost eleven years, Plaintiff has been asking
Defendant to hire a technical theater teacher or assistant3 for
Hillside. (Forte-Brown Dep. (Doc. 40-9) at 85.) The Board was
aware that Plaintiff wanted technical theater support. (Pl.’s
Resp. (Doc. 40), Deposition of Thomas Johns Crabtree (“Crabtree
Dep.”) (Doc. 40-3) at 93; Forte-Brown Dep. (Doc. 40-9) at 45,
85.)
Whereas a technical theater teacher is a certified teacher
who can teach classes, a technical theater assistant is a noncertified employee who assists with technical theater tasks but
cannot teach classes.
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1.
Allotment Process
Durham schools are allotted a certain number of teachers
based on student enrollment numbers. (Crabtree Dep. (Doc. 40-3)
at 45; Logan Dep. (Doc. 40-4) at 38–39; Key Dep. (Doc. 40-5) at
39.) “[B]ased on how many children you have, that’s how many
teachers you have.” (Forte-Brown Dep. (Doc. 40-9) at 98.) “The
allocation of resources to schools is determined by formula.”
(Pl.’s Resp. (Doc. 40), Deposition of Bertrand Paul L’Homme
(“L’Homme Dep.”) (Doc. 40-6) at 25.) That mathematical formula
used to allocate teacher positions is the same for every high
school in the district. (Logan Dep. (Doc. 40-4) at 162.)
Allotments are not broken down by subject area, but
principals are required to hire enough teachers to teach the
minimum state-required curriculum in English, Math, Science, and
Social Studies. (Crabtree Dep. (Doc. 40-3) at 50–51; Key Dep.
(Doc. 40-5) at 43, 75.) In addition to those requirements, DPS
has designated some of its schools as magnet schools. (ForteBrown Dep. (Doc. 40-9) at 25; Logan Dep. (Doc. 40-4) at 146–47.)
Magnet designations are Board, not school decisions. (Key Dep.
(Doc. 40-5) at 63.) In order to support a magnet program,
schools must use some of their enrollment-based teacher
allotments to support the magnet program. (Logan Dep. (Doc.
40-4) at 146.) Hillside has been designated as an International
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Baccalaureate (“IB”) magnet program. (Id.) In addition to magnet
and state requirements, some schools, such as Hillside, are also
required to allocate teachers to help improve academic
achievement and student test scores. (Pl.’s Resp. (Doc. 40),
Affidavit of Henry J. Pankey (“Pankey Aff.”) (Doc. 40-10) ¶ 18;
Affidavit of Hans Lassiter (“Lassiter Aff.”) (Doc. 40-11) ¶ 17.)
The Board had input about the use of allotments when
administrators would meet with principals to ensure they had the
allotments to “support all content areas.” (Logan Dep. (Doc.
40-4) at 85.) Once all a school’s requirements were met, the
principal had discretion to use the school’s allotments as he or
she saw fit. (Crabtree Dep. (Doc. 40-3) at 51.)
Principals may ask for additional teachers beyond their
enrollment-based allotment. (Logan Dep. (Doc. 40-4) at 39.) The
form used is a “New Position Form.” (Doc. 40-31 at 1.) The form
offers two ways to get a new teacher allotment: (1)
re-appropriating an existing allotment, or (2) requesting a new
teaching allotment beyond what student enrollment justifies.
(Logan Dep. (Doc. 40-4) at 70–71; Doc. 40-31 at 1.)
The Board had to approve a new teaching position above a
school’s enrollment-based allotment and any new use of funds.
(Logan Dep. (Doc. 40-4) at 72; L’Homme Dep. (Doc. 40-6) at 96;
Forte-Brown Dep. (Doc. 40-9) at 100; Doc. 40-31 at 1.) Normally,
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a request for a new teaching position would come from a school’s
principal, (Forte-Brown Dep. (Doc. 40-9) at 59–61), but the
Superintendent himself could request a new position be created
at a school, (Crabtree Dep. (Doc. 40-3) at 76; Key Dep. (Doc.
40-5) at 105–06).
2.
Hillside from August 2013 until August 2017
Dr. Logan has been Hillside’s principal since 2012. (Logan
Dep. (Doc. 40-4) at 18). Dr. Logan once told Thomas Crabtree,
Assistant Superintendent for Human Resources (“HR”) at the time,
that he would have liked to get Plaintiff a technical theater
teacher but could not spare a position. (Crabtree Dep. (Doc.
40-3) at 11, 92.)
At one point during Dr. Logan’s tenure as principal at
Hillside, Hillside had an additional allotment to use for an
arts teacher, but rather than using it to hire a theater tech,
Dr. Logan used it to hire a photography teacher. (Logan Dep.
(Doc. 40-4) at 100; Doc. 40-32 at 4; Casey Dep. (Doc. 40-8) at
91–94.) Dr. Logan initiated the student registration process for
technical theater classes “two to three times,” but “there
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wasn’t a demand from the students.” (Logan Dep. (Doc. 40-4) at
43.)4
Dr. Logan had to use part of his enrollment-based
allotments to support Hillside’s IB magnet program. Hillside
receives some additional allotments for its IB magnet program,
(Doc. 40-41 at 129), but the majority of the teachers supporting
the program come from the school’s enrollment-based allotment,
(Logan Dep. (Doc. 40-4) at 147–48). But for the magnet
requirement, Dr. Logan stated he “possibly” could have supported
a technical theater position at Hillside. (Id. at 148.)
Dr. Logan knew how to request an additional teacher
allotment using the New Position Form. Dr. Logan was aware of
the New Position Form and used it in the past but does not
recall filling one out for a theater tech position. (Logan Dep.
(Id. at 74.) Dr. Logan never had any additional teacher
allotments approved for any subjects, even though he had at
least one request a year. (Id. at 156.) Dr. Logan said the only
times he got a new teacher allotment is when student enrollment
at Hillside increased. (Id. at 44.)
There was a registration issue in 2013 when Hillside
personnel failed to include Technical Theater as an offering for
the next school year. (Logan Dep. (Doc. 40-4) at 103–04.)
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Dr. Logan also stated that he was aware he could have
converted a teaching allotment, assuming one was available, into
a “classified” teaching position. (Id. at 64.) A classified
position is one that can be filled by someone who does not have
a teaching license. (Crabtree Dep. (Doc. 40-3) at 24.) This
approach would have enabled Dr. Logan to hire a noncertified
teaching assistant to help Plaintiff with technical theater
work, but the individual could not teach classes. (Logan Dep.
(Doc. 40-4) at 63–64.) Converting an existing classified
position into a theater tech job, another option, would have
required terminating another classified employee. (Crabtree Dep.
(Doc. 40-3) at 167; Key Dep. (Doc. 40-5) at 55.)
3.
Hillside Prior to Dr. Logan (Before August 2012)
Plaintiff provides affidavits from two former Hillside
principals that he claims create a factual dispute about whether
it was Hillside principals or the Board who made the decision
not to hire a technical theater teacher. Henry Pankey was
principal at Hillside starting in 2001. (Pankey Aff. (Doc.
40-10) ¶ 16.)5 Hans Lassiter was principal at Hillside from
August 2009 until February 2012. (Lassiter Aff. (Doc. 40-11)
¶ 8.)
It is not clear from the record when Mr. Pankey’s tenure
at Hillside ended.
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Mr. Pankey averred that his proposals to create a “Hillside
School of the Arts” were repeatedly rejected by Defendant.
(Pankey Aff. (Doc. 40-10) ¶¶ 31–33.) Mr. Pankey also averred
that Defendant’s position that principals were responsible for
staffing the schools is a “false way of framing the issue.” (Id.
¶ 34.) Mr. Pankey stated that “[a]s principal, my hands were
tied regarding hiring new staff. Because of decisions made by
the central administration, I had no discretionary funds or
teaching allotments that I could use.” (Id.) Mr. Pankey averred
that all of his allotments “based on student population were
already allocated to positions mandated by the administration
and the School Board to teach the core curriculum of subjects
and the specialized program (like IB) that had been placed at
Hillside.” (Id. ¶ 35.) Additionally, “[t]here was strong
pressure to use any extra positions to enhance the reading and
math skills necessary for the standardized tests.” (Id.)
Mr. Pankey also averred that his teaching assistant allotments
were dedicated to other “mandatory positions, such as the
Exceptional Children’s Program . . . and the English As a Second
Language Program . . . .” (Id. ¶ 36.)
Mr. Lassiter claimed the same requirements mentioned by
Mr. Pankey also meant he had “little true discretion regarding
allotments.” (Lassiter Aff. (Doc. 40-11) ¶ 17.) Mr. Lassiter
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averred it was “untrue” that principals at Hillside decided not
to use their allotments to hire a theater tech. (Id. ¶ 16.)
Mr. Lassiter claims Defendant “required the use of [Hillside’s]
allotments for these other purposes,” like supporting the IB
magnet program and teaching remedial classes. (Id. ¶ 17.)
As will be explained hereafter, whether Defendant or the
individual principal has ultimate control of teaching positions
or hiring a technical director is not a material fact necessary
to resolution of Defendant’s motion for summary judgment.
4.
Theater Techs at Other Schools
Plaintiff relies upon comparison to other schools to prove
that he, as an African-American theater director, was treated
differently from similarly-situated Caucasian theater directors.
There were other schools in the district with technical theater
teachers. Those schools who had technical theater positions used
a “regular teacher allotment to support a technical theatre art
teacher[]”; “[n]o school in the district has received a specific
allotment for a technical theatre arts teacher.” (Logan Dep.
(Doc. 40-4) at 92; Doc. 40-31 at 18.)6
The email quoted is from Dr. Eric Becoats, a former
superintendent and African-American male. (Crabtree Dep. (Doc.
40-3) at 33.)
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Plaintiff argues that three schools are valid comparators:
Riverside, Jordan, and Durham School of the Arts (“DSA”). (Pl.’s
Resp. (Doc. 40) at 15–21.) For reasons explained hereafter, the
court continues to find that DSA is not a valid comparator. See
infra note 21. Therefore, two schools in the district are valid
comparators in this case: Riverside High School (“Riverside”)
and Jordan High School (“Jordan”). During Mr. Key’s tenure as
Area Superintendent from 2011 to 2014, Riverside and Jordan were
the largest high schools in the district. (Key Dep. (Doc. 40-5)
at 13, 87.) Riverside, in particular, had roughly 1,850 to 2,000
students each year during that time. (Id. at 87.) During the
same period, Hillside varied from between 1,200 and 1,300. (Id.
at 86.) In the 2014–15 school year, Jordan had 1,854 students.
(Doc. 40-41 at 175.)
a.
Riverside High School
Mr. Key was principal at Riverside from 2004 to 2010. (Key
Dep. (Doc. 40-5) at 76.) Mr. Key was able to hire a technical
theater teacher by using his enrollment-based allotment;
Riverside was large enough to have allotments supporting two
visual arts teachers, and Mr. Key decided to use one of the
positions to allow for an extra drama teacher in light of
student demand. (Key Dep. (Doc. 40-5) at 74, 85, 92; Doc. 40-38
at 11.) While Mr. Key was principal at Riverside, there were
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roughly seventy-five students per semester in Riverside’s
technical theater classes. (Key Dep. (Doc. 40-5) at 199.)
Mr. Key wanted a technical theater class because Riverside did
not have a “shop” class providing students with hands-on
technical or mechanical training. (Id. at 200.) Also, Riverside
needed an extra art elective but did not have physical space for
another class, so they converted part of the theater wing into a
theater tech shop. (Casey Dep. (Doc. 40-8) at 34.)
Riverside has had several teachers come through its drama
department both before and after Mr. Key’s time. Kee Strong, a
Caucasian female, was a theater teacher at Riverside from
July 1, 2002, until she retired on June 30, 2015. (Doc. 42 at
17; Key Dep. (Doc. 40-5) at 77; Crabtree Dep. (Doc. 40-3) at
128.) While she was at Riverside, Ms. Strong had several theater
techs who worked with her. (Crabtree Dep. (Doc. 40-3) at 131.)
Wesley Schultz was a theater teacher who taught at Riverside
from January 26, 2011, until summer of 2012. (Id. at 133.).
Michael Krauss worked as a theater tech teacher from summer of
2011 until June 12, 2012. (Casey Dep. (Doc. 40-8) at 33; Doc.
42-8 at 1.) After Wesley Schultz and Michael Krauss left
Riverside in summer of 2012, Monique Taylor was hired. (Casey
Dep. (Doc. 40-8) at 34.)
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Monique Taylor was hired as a technical theater teacher for
Riverside on August 20, 2012. (Crabtree Dep. (Doc. 40-3) at
155.) Ms. Taylor is African-American. (Id.)
After Ms. Taylor was hired, Glenn Fox worked as a technical
theater teacher at Riverside from August 20, 2012, through
June 14, 2013. (Doc. 40-43 at 125.) Andrew Way was then hired to
work as a technical theater teacher from September 5, 2013,
until June 12, 2015. (Id.; Adkins Aff. (Doc. 38-8) ¶ 7.)
After Ms. Strong’s retirement in June 2015, Tom Nevels then
worked at Riverside as a theater teacher at Riverside for a
short time in fall of 2015. (Casey Dep. (Doc. 40-8) at 35.)7
After Mr. Nevels left in November 2015, Monique Taylor was
the only theater teacher at Riverside. In 2016, Riverside
created two “classified” employee positions by converting a
teacher allotment. (Crabtree Dep. (Doc. 40-3) at 159; Key Dep.
(Doc. 40-5) at 73; Deposition of William Lawayne Holley, Jr.
(“Holley Dep.”) (Doc. 40-7) at 45; Adkins Aff. (Doc. 38-8) ¶ 9.)
Using one of those classified positions, William Holley was
hired to work as a theater tech at Riverside on January 4, 2016
As Mr. Crabtree acknowledged during his deposition, there
are inconsistencies in Mr. Nevels’s file about how long
Mr. Nevels was at Riverside. (Crabtree Dep. (Doc. 40-3) at 149–
50.) Mr. Crabtree believed Mr. Nevels was at Riverside from
August 17, 2015 until November 20, 2015. (Id. at 149.)
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– Mr. Holley still works at Riverside. (Crabtree Dep. (Doc.
40-3) at 135–36.) When Mr. Holley was hired as a classified
employee, Monique Taylor was the only other employee in the
Riverside theater department. (Holley Dep. (Doc. 40-7) at 76;
Casey Dep. (Doc. 40-8) at 34–38.) Mr. Holley had been working at
Riverside as early as 2008 as an external contractor. (Holley
Dep. (Doc. 40-7) at 29.)
b.
Jordan High School
Olivia Bellido is the theater teacher at Jordan High
School. (Crabtree Dep. (Doc. 40-3) at 156.) Ms. Bellido is
Caucasian. (Id. at 157.) Ms. Bellido was hired to teach theater
and technical theater and has been teaching both since 2011.
(Def.’s Reply Brief (“Def.’s Reply”) (Doc. 43), Affidavit of
Olivia Bellido (“Bellido Aff.”) (Doc. 43-1) ¶ 2; Adkins Aff.
(Doc. 38-8) ¶ 3.) Ms. Bellido is the only theater instructor at
Jordan and has been since 2011. (Bellido Aff. (Doc. 43-1) ¶ 3.)
Ms. Bellido has asked her principals, as well as past and
present DPS Directors of Arts Education, to hire a technical
theater teacher “as early as 2011,” but her requests have all
been denied. (Bellido Aff. (Doc. 43-1) ¶¶ 7–8.) Ms. Bellido has
been told by her principals that Jordan does not have the
teacher allotments to support a technical theater teacher.
(Bellido Aff. (Doc. 43-1) ¶ 8.) A previous drama teacher at
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Jordan, Hope Hynes, a Caucasian female, left DPS to teach in
another district because she did not get the theater tech
teacher she wanted. (Casey Dep. (Doc. 40-8) at 30, 32.)
C.
Extra-Duty Pay
Defendant would regularly use Hillside Theater for
district-wide events. (Casey Dep. (Doc. 40-8) at 116.) Hillside
was a preferable location because they had good parking and a
good auditorium. (L’Homme Dep. (Doc. 40-6) at 131.)
Plaintiff would often be present in Hillside Theater when
it was being used for district-wide events in order provide
technical support. (Pl.’s Resp. (Doc. 40), Deposition of
Plaintiff Wendell Tabb (“Tabb Dep.”) (Doc. 40-2) at 33.)
Plaintiff stated he generally “was not getting paid for the
district events and they’ve only paid me for a very slim few.”
(Id. at 27.) Plaintiff has always been paid for outside theater
rentals (“facility rentals”), which are rentals made by groups
outside DPS. (Id. at 27–28.)
Plaintiff asked Board officials for compensation for “all
of the events” for which he had not been compensated. (Id. at
38.) In his Verified Amended Complaint, Plaintiff alleges that,
“[d]espite repeated requests, he has not been paid for this
work.” (Am. Compl. (Doc. 14) ¶ 130.)
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Plaintiff’s Verified Amended Complaint also includes a long
list of district-wide events he claims to have not received
extra-duty pay for working. (Id.) However, Plaintiff did receive
extra-duty contracts for two of the events on that list.
Plaintiff received an extra-duty contract for the 2015 Summer
School graduation and was paid for that event. (Tabb Dep. (Doc.
40-2) at 60, 111; Doc. 40-15 at 26–28.) Plaintiff also received
an extra-duty contract for a May 2015 DPS Career and Technical
Education (“CTE”)8 event, (Tabb Dep. (Doc. 40-2) at 113; Doc. 4015 at 29–31), but Plaintiff does not recall if he was actually
paid for that event, (Tabb Dep. (Doc. 40-2) at 113). Dr. Logan
cannot confirm or deny that Plaintiff worked all the events in
paragraph 130 of his Verified Amended Complaint. (Logan Dep.
(Doc. 40-4) at 114.) Plaintiff admits he did receive extra-duty
contracts prior to filing his Complaint. (Tabb Dep. (Doc. 40-2)
at 103–04.)
Plaintiff, in pointing to comparators for his extra-duty
claim, named William Holley as a Caucasian employee who was
receiving extra-duty pay when Plaintiff was not. (Id. at 71.)
Specifically, Plaintiff noted that Mr. Holley was compensated
CTE is the modern nomenclature for vocational instruction.
(Crabtree Dep. (Doc. 40-3) at 58.)
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for his yearly work at DPS’s Evening of Entertainment Event.
(Id. at 72.) Plaintiff also claimed Bill Thomason, an IT
employee, received extra-duty pay for district-wide events.
(Tabb Dep. (Doc. 40-2) at 74.) Plaintiff did not name a specific
district event Mr. Thomason worked for which he received extraduty pay. (Tabb Dep. (Doc. 40-2) at 70–74.)
Mr. Holley’s sound and light companies were used by DPS for
roughly ten years to support district-wide events. (Holley Dep.
(Doc. 40-7) at 42, 51–52.) This was before Mr. Holley was hired
as a classified employee at Riverside in January 2016. (Id.)
Mr. Holley’s first company to receive contracts was Holley
Johnson Sound, Lighting and Production Company, Inc. (Doc. 40-43
at 105.) That company was administratively dissolved, and
Mr. Holley later founded Ferret Sound Company, LLC (“Ferret
Sound”). (Doc. 40-43 at 110, 112.) Ferret Sound continued to
perform contracts for DPS after Mr. Holley was hired at
Riverside. (Holley Dep. (Doc. 40-7) at 51; Casey Dep. (Doc.
40-8) at 38–39.)
Mr. Holley received extra-duty contracts for work he did as
a Riverside employee outside normal hours. (Doc. 40-16 at
115-19.) Mr. Holley’s earliest extra-duty contract in the record
is for work done between June 1–3, 2017. (Id. at 119.) Only one
of Mr. Holley’s extra-duty contracts is for a district-wide
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event. (Id. at 117.) Though Mr. Holley has never been denied
extra-duty pay when he asked for it, he has worked district
events without pay. (Holley Dep. (Doc. 40-7) at 77.) Mr. Holley
said he is sometimes there “voluntarily” to support the events.
(Id. at 78.)
Ms. Bellido, a Caucasian female and Jordan’s only drama
teacher, averred that she is “present in Jordan’s theater for
all school and district-wide events, including during nights and
on weekends,” and she does “not receive extra-duty pay for any
of these events.” (Bellido Aff. (Doc. 43-1) ¶ 11.)
D.
Procedural History
Plaintiff originally filed suit in this court on August 9,
2017, alleging causes of action under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 1981, and the Americans with
Disabilities Act (the “ADA”). (Doc. 1 at 1.) Plaintiff’s
original Complaint alleged that Defendant discriminated against
him in giving other schools technical theater support, in
failing to pay Plaintiff for his additional work in light of his
lack of technical theater support, in failing to pay him extraduty pay for working district-wide events held at Hillside, and
in retaliating against Plaintiff under the ADA. (Doc. 1 at
26-28.)
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After Defendant filed its first Motion to Dismiss pursuant
to Fed. R. Civ. P. 12(b)(6), (Doc. 12), Plaintiff filed an
Amended Complaint, (Doc. 14). Defendant filed a second Motion to
Dismiss Plaintiff’s Amended Complaint pursuant to Fed. R. Civ.
P. 12(b)(6). (Doc. 18.) The court granted in part and denied in
part Defendant’s second Motion to Dismiss. (Doc. 25.)
Specifically, the court held:
(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 nonpayment 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.
Tabb v. Bd. of Educ. of Durham Pub. Sch., No. 1:17CV730, 2019 WL
688655, at *13 (M.D.N.C. Feb. 19, 2019).
Following discovery, Defendant submitted a Motion for
Summary Judgment pursuant to Fed. R. Civ. P. 56(a). (Doc. 38.)
Defendant filed a supporting brief, (Doc. 39); Plaintiff
responded, (Doc. 40); and Defendant replied, (Doc. 43).
Defendant’s Motion for Summary Judgment is now ripe for ruling.
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II.
STANDARD OF REVIEW
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). This court’s
summary judgment inquiry is whether the evidence “is so onesided that one party must prevail as a matter of law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The moving
party bears the initial burden of demonstrating “that there is
an absence of evidence to support the nonmoving party’s case.”
Celotex Corp., 477 U.S. at 325. If the “moving party discharges
its burden . . . , the nonmoving party must come forward with
specific facts showing that there is a genuine issue for trial.”
McLean v. Patten Cmtys., Inc., 332 F.3d 714, 718-19 (4th Cir.
2003) (citing Matsushita Elec., 475 U.S. at 586-87). Summary
judgment should be granted “unless a reasonable jury could
return a verdict in favor of the nonmovant on the evidence
presented.” McLean, 332 F.3d at 719 (citing Liberty Lobby, 477
U.S. at 247–48).
When considering a motion for summary judgment, courts must
“construe the evidence in the light most favorable to . . . the
non-moving party. [Courts] do not weigh the evidence or make
-21-
credibility determinations.” Wilson v. Prince George’s Cnty.,
893 F.3d 213, 218–19 (4th Cir. 2018).
III. ANALYSIS
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 Corp. v.
Green, 411 U.S. 792, 802 (1973). The legal standard for Title
VII and Section 1981 claims is the same. Thompson v. Potomac
Elec. Power Co., 312 F.3d 645, 649 n.1 (4th Cir. 2002).
“To establish a prima facie case of [racial]
discrimination, a plaintiff must show: ‘(1) membership in a
protected class; (2) satisfactory job performance; (3) adverse
employment action; and (4) that similarly-situated employees
outside the protected class received more favorable treatment.”
Gerner v. Cnty. of Chesterfield, 674 F.3d 264, 266 (4th Cir.
2012) (quoting White v. BFI Waste Servs., LLC, 375 F.3d 288, 295
(4th Cir. 2004)); Coleman v. Md. Court of Appeals, 626 F.3d 187,
190 (4th Cir. 2010).
“At the summary judgment stage, the plaintiff carries the
initial burden of establishing the prima facie elements of his
-22-
claims under Title VII upon challenge by an adverse party. This
burden is met by utilizing either direct or circumstantial
evidence.” Reid v. Dalco Nonwovens, LLC, 154 F. Supp. 3d 273,
284 (W.D.N.C. 2016); accord Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005); Mitchell v. Data
Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993), holding modified
by Stokes v. Westinghouse Savannah River Co., 206 F.3d 420 (4th
Cir. 2000).
If the plaintiff succeeds in proving a prima facie
case, the burden of going forward shifts to the
employer, who must articulate a non-discriminatory
reason for the difference in disciplinary enforcement.
Should the employer articulate such a
non-discriminatory reason, the burden shifts back to
the plaintiff to demonstrate that the employer’s
reasons are not true but instead serve as a pretext
for discrimination. The plaintiff, however, always
bears the ultimate burden of proving that the employer
intentionally discriminated against him.
Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993);
accord Engler v. Harris Corp., 628 F. App’x 165, 167 (4th Cir.
2015).
Plaintiff offers no direct evidence of discrimination —
Plaintiff is proceeding under the McDonnell Douglas framework by
offering indirect evidence of discrimination. There is no
genuine dispute of material fact that Plaintiff is a member of a
protected class and was performing his job satisfactorily.
Plaintiff, as an African-American, is a member of a protected
-23-
class under Title VII and § 1981. Defendant does not contest
that Plaintiff has exceeded expectations in the performance of
his job. (See generally Def.’s Mem. of Law in Supp. of Mot. for
Summ. J. (“Def.’s Br.”) (Doc. 39); Def.’s Reply (Doc. 43).)
Indeed, the record is replete with evidence of Plaintiff’s
stellar performance as a drama teacher.
The court, therefore, will only analyze Plaintiff’s claims
to determine if there is a genuine dispute of material fact as
to whether Plaintiff experienced an adverse employment action
and, if so, whether that action occurred under circumstances
that give rise to an inference of racial discrimination.
Plaintiff alleges two adverse employment actions: discriminatory
technical theater staffing and failure to pay extra-duty pay.
The court addresses each in turn.
A.
Discriminatory Staffing Claim
Plaintiff alleges that Defendant denied him technical
theater staffing because of his race. (Am. Compl. (Doc. 14)
¶¶ 41–45.)
Defendant moves for summary judgment largely on two
grounds. First, Defendant argues that the undisputed evidence
shows that the decision to hire or not hire theater techs at
other schools was made by principals at those schools, not by
the Board. Defendant argues it did not provide a specific
-24-
theater tech allotment to any school. Therefore, Defendant
argues, there is no genuine dispute that Defendant did not take
an adverse employment action. Second, Defendant argues that
Plaintiff can point to no evidence of a Caucasian comparator
during the limitations period who received the benefit that
Plaintiff sought. Therefore, Defendant argues, Plaintiff cannot
make out a prima facie case of discrimination
Plaintiff argues that summary judgment is inappropriate
here because there is a genuine dispute of material fact as to
whether it was Defendant or Hillside principals who were
responsible for “the failure to hire a Theatre tech.” (Pl.’s
Resp. (Doc. 40) at 7.) Plaintiff argues that Defendant,
specifically the Superintendent, had the authority to create a
new position for a theater tech at Hillside by either giving an
additional allotment to the school or hiring a classified
employee but chose not to do so. (Id. at 13–14.) Plaintiff
argues this creates a genuine dispute as to whether it was
Hillside principals or the Board denying Plaintiff the staffing
he requested.
Plaintiff also argues that Defendant made it impossible for
Hillside principals to hire a theater tech because of the magnet
and academic achievement requirements they placed on Hillside
principals. (Id. at 9.) Because of these requirements, Plaintiff
-25-
argues, Hillside principals had no real discretion in how they
used their enrollment-based teacher allotments. (Id. at 7, 9.)
Therefore, Plaintiff argues, there is a factual dispute about
whether Hillside principals were the real decision makers.
As for comparators during the limitations period, Plaintiff
points to Riverside and DSA9 as examples of Caucasian theater
teachers being provided theater techs. Plaintiff argues that
Jordan is not a valid comparator, because Ms. Bellido, the
Caucasian theater director at Jordan, has not requested a
theater tech and she herself is a “theater tech.” (Id. at
17-18.) Plaintiff then points to the string of theater techs
provided to Riverside High School as evidence of a pattern of
providing the technical staffing to Caucasian teachers but
denying it to Plaintiff. (Id. at 16–17.) Plaintiff argues that,
until 2015, Riverside’s drama program was “run” by Kee Strong, a
Caucasian female, and that the theater support hired was hired
to support her. (Id. at 15-16.)
1.
Adverse Employment Action
The court begins by analyzing whether there is a genuine
dispute of material fact that Defendant’s actions in or
For reasons explained below, infra note 21, the court
continues to find that DSA is not a valid comparator.
9
-26-
effecting the failure to hire a theater tech are an adverse
employment action.
a.
Theater Tech is not “Part and Parcel”
This court found, in its order denying Defendant’s 12(b)(6)
motion, that Hishon and the factual allegations plausibly stated
a claim. See Tabb, 2019 WL 688655, at *7; Hishon v. King &
Spalding, 467 U.S. 69, 75 (1984). However, at this stage of the
proceedings, considering the facts in the light most favorable
to Plaintiff, Plaintiff has not come forward with evidence to
support a claim based on Hishon that Defendant took an adverse
employment action as to technical staffing. In its previous
order allowing Plaintiff’s discriminatory staffing claim to
proceed, this court stated the following: “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 non-discriminatory manner.” Tabb, 2019 WL 688655,
at *7.
Following the development of the record during discovery,
it does not appear the facts support a finding that a theater
tech is “part and parcel” of employment as a high school drama
teacher within DPS. See Hishon, 467 U.S. at 75 (“A benefit that
is part and parcel of the employment relationship may not be
-27-
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.”). The Hishon Court explained that
those “benefits that comprise the ‘incidents of employment,’ or
that form ‘an aspect of the relationship between the employer
and employees,’ may not be afforded in a manner contrary to
Title VII.” Id. at 75–76 (quoting Allied Chem. & Alkali Workers
of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404
U.S. 157, 178 (1971)). Hishon itself dealt with a law firm’s
implicit promise to consider an attorney for partnership, a
significant incident of employment for any new lawyer. In a
later Supreme Court case, the Court cited to Hishon when
discussing paid versus unpaid leave, Ansonia Bd. of Educ. v.
Philbrook, 479 U.S. 60, 71 (1986); another discussed continued
employment beyond a mandatory retirement age, see Trans World
Airlines, Inc. v. Thurston, 469 U.S. 111, 114–16 (1985). The
Fourth Circuit’s only case to fully address Hishon’s “part and
parcel” analysis dealt with severance benefits. Gerner, 674 F.3d
at 267. The Gerner court cited other cases that dealt with
severance benefits and supervisory opportunities necessary to
advancement. See id.
The factual background of those and other cases suggests
Hishon only applies to objective employment benefits that inure
-28-
directly to the employee and are also so fundamental as to be
considered “part and parcel” of the employment relationship. The
record indicates that providing a technical theater teacher or
theater tech is not an objective benefit that inures directly to
a theater teacher in the DPS.10
Regardless of whether the benefit inures to theater
teachers directly, the record indicates that a theater tech is
not a “part and parcel” benefit for theater teachers in DPS. At
the time Plaintiff filed his Charge, only two out of six DPS
high schools had theater techs. (See, e.g., Doc. 40-34 at 22;
Pl.’s Resp. (Doc. 40) at 15–19.) That indicates that theater
tech staffing is not “part and parcel” of employment as a high
school drama teacher in DPS as the majority of schools described
do not have a theater tech. Plaintiff’s claim fails to allege an
adverse employment action on that fundamental point.
Although not argued by the parties, this court would find
alternatively that the failure to hire a theater tech is not an
adverse action with respect to Plaintiff’s employment. Generally
speaking, teachers and curriculum are designed for the benefit
of the students, not other faculty. Plaintiff’s desire for a
theater tech to improve the quality of the theater, as well as
Plaintiff’s willingness to perform the additional technical work
when possible, are all commendable. Nevertheless, the allocation
of resources, including the hiring of teachers, are matters
intended to benefit the students. Regardless, the parties have
not raised this issue, and the court finds that a theater tech
is not part of the employment relationship.
10
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b.
No Adverse Action and No Pretext
Even if a theater tech is part and parcel of employment as
a drama teacher in DPS, Plaintiff’s claim fails for other
reasons. Plaintiff’s argument that Defendant took an adverse
employment action is two-pronged.
First, Plaintiff argues that Defendant took an adverse
employment action in denying Plaintiff and Hillside principals’
requests to provide an additional allotment or funds, beyond the
school’s enrollment-based allotment or normal funds, which they
could use to hire a technical theater teacher. The second
argument is that Defendant took an adverse employment action in
preventing Hillside principals from using their enrollment-based
allotments to hire a theater tech.
As to the first, there is no genuine dispute of material
fact that Defendant never provided an additional allotment to
any other school. Therefore, Defendant did not deny that benefit
in a discriminatory way, because it did not provide it to anyone
else. As to the second, that Defendant’s requirements prevented
Hillside principals from using their enrollment-based allotments
to a hire a theater tech, the court finds that, when viewing the
record in a light most favorable to Plaintiff, he has come
forward with evidence supporting a prima facie case of
discrimination. However, Plaintiff has failed to come forward
-30-
with evidence upon which a reasonable jury could rely in
determining that Defendant’s magnet program and academic
achievement requirements were pretext for preventing Hillside
from hiring a theater tech due to Plaintiff’s race.
i.
No Additional Allotment for Other
Schools
There is no genuine dispute of material fact that Defendant
never provided an additional theater tech allotment to another
school. Therefore, Defendant did not discriminate against
Plaintiff when it denied his requests for an additional
allotment.
Once an employer offers a benefit to certain employees, it
assumes the obligation to offer it to other employees in a
non-discriminatory manner.11 Hishon, 467 U.S. at 75. As the
Fourth Circuit noted, “courts have consistently recognized that
the discriminatory denial of a non-contractual employment
benefit constitutes an adverse employment action.” Gerner, 674
F.3d at 267.
There is a fundamental difference between the Hishon line
of cases and how theater techs were hired at other schools in
DPS. The cases cited by the Gerner Court all involved situations
Again, assuming the benefit is, in fact, “part and
parcel.”
11
-31-
where an employer obviously provided a benefit to some
employees, but then withheld it from others in a discriminatory
fashion. See Trans World Airlines, 469 U.S. at 120–21 (airline’s
discriminatory policy of allowing some pilots to “bump” lesssenior flight engineers, but not allowing others because of
their age); Paquin v. Fed. Nat’l Mortg. Ass’n, 119 F.3d 23, 32
(D.C. Cir. 1997) (employer offered a noncontractual severance
package, but then withdrew it); DiBiase v. SmithKline Beecham
Corp., 48 F.3d 719, 722–23, 25 (3d Cir. 1995) (noncontractual
severance benefit was offered in discriminatory fashion); Judie
v. Hamilton, 872 F.2d 919, 921–22 (9th Cir. 1989) (employer
permitted Caucasian employees to engage in noncontractually
required supervisory responsibilities, but denied same
opportunity to minority employee).12 Gerner itself dealt with a
situation where an employer offered a less favorable severance
package to a female employee than it offered to its male
employees. Gerner, 674 F.3d at 265.
By contrast to those cases, there is no genuine dispute
that Defendant did not provide an additional allotment or
Another case cited by the Gerner Court, Cunico v. Pueblo
School District No. 60, 917 F.2d 431 (10th Cir. 1990), cited
Hishon to support the proposition that employers can avoid
discriminating against employees by either giving every employee
the same benefit, or providing no benefit at all. See Cunico,
917 F.2d at 442.
12
-32-
additional funding to any school for the purpose of hiring a
theater tech. (Logan Dep. (Doc. 40-4) at 92; Doc. 40-31 at 18;
Def.’s Mot. (Doc. 38), Affidavit of Alexander Modestou
(“Modestou Aff.”) (Doc. 38-9) ¶ 17.) Dr. Eric Becoats, the DPS
superintendent before Dr. L’Homme, and an African-American male,
was straightforward when he wrote to Plaintiff saying, “[n]o
school in the district has received a specific allotment for a
Technical Theatre Arts Teacher. Both DSA and Riverside utilize a
regular teacher allotment to support a Technical Theatre Art
Teacher.” (Doc. 40-31 at 18.)13
DPS high schools are given unassigned teacher allotments
based on the school’s enrollment. (Crabtree Dep. (Doc. 40-3) at
45; Logan Dep. (Doc. 40-4) at 38–39; Key Dep. (Doc. 40-5) at
38-39; Modestou Aff. (Doc. 38-9) ¶¶ 12–13.) The mathematical
formula used to allocate teacher positions is the same for every
high school in the district. (Logan Dep. (Doc. 40-4) at 162;
Plaintiff claims it will be for the jury to decide if
Dr. Becoats or Mr. Lassiter is telling the truth about whether
Defendant or principals denied Plaintiff’s request, but even if
a conflict exists, it is not material. Mr. Lassiter’s account,
however, does not contradict this statement. It seems
Mr. Lassiter asked Dr. Becoats for an additional allotment to
support a theater tech. (See Lassiter Aff. (Doc. 40-11) ¶¶ 18–
19.) If he was in fact asking for an additional allotment, there
is no dispute that Dr. Becoats denied it. Even so, he was
denying Plaintiff something that nobody else in the district
received: an additional allotment for a theater tech position.
No jury is needed to resolve this fact.
13
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Doc. 40-42 at 84 (state allocation formula).) Each school’s
principal then uses those allotments to hire enough teachers to
meet state and local curriculum requirements. (Crabtree Dep.
(Doc. 40-3) at 50–51.) Despite Plaintiff’s argument to the
contrary, Plaintiff offers no evidence to support the claim that
schools were provided additional “discretionary” allotments.
(Pl.’s Resp. (Doc. 40) at 9.) There is no genuine dispute that
Defendant did not provide any other school a technical theater
teaching allotment.
The way in which comparator schools hired or did not hire
theater techs demonstrates this point.14 There is no genuine
dispute that Riverside used its enrollment-based teacher
allotment to hire its theater tech staff. (Key Dep. (Doc. 40-5)
at 85, 92, 199–200; Doc. 40-38 at 11.) Even Mr. Holley was hired
using an enrollment-based allotment after it created a
“classified” employee position by converting a teacher
allotment. (Crabtree Dep. (Doc. 40-3) at 160; Key Dep. (Doc.
40-5) at 73; Holley Dep. (Doc. 40-7) at 42.) There is no genuine
Plaintiff has come forward with no evidence that other
principals were acting at Defendant’s direction when they hired
or did not hire theater techs. Indeed, Mr. Key’s undisputed
testimony indicates that he chose to use an allotment to hire a
theater tech for reasons specific to Riverside, such as the
other arts courses it offered and the physical space available.
14
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dispute that Jordan has not had a theater tech since 2011,
before the limitations period, because Jordan’s principals do
not have an enrollment-based allotment to spare. (Bellido Aff.
(Doc. 43-1) ¶ 7.) Indeed, a previous drama teacher at Jordan,
Hope Hynes, a Caucasian female, left DPS to teach in another
district because she did not get the theater tech teacher she
requested. (Casey Dep. (Doc. 40-8) at 30, 32.)
Plaintiff is correct that Defendant could have provided a
new allotment from local funds, (Logan Dep. (Doc. 40-4) at 39;
Crabtree Dep. (Doc. 40-3) at 76; Key Dep. (Doc. 40-5) at 105–06;
L’Homme Dep. (Doc. 40-6) at 90–91, 94; Doc. 40-31 at 1), or it
could have provided local funds to create a new classified
position, (Crabtree Dep. (Doc. 40-3) at 159). In fact, in the
past, Defendant has approved additional allotments for Hillside
to support the IB magnet program as well as additional teaching
positions to boost test scores. (L’Homme Dep. (Doc. 40-6) at
90-91.) There is no genuine dispute as to whether Defendant
could give Plaintiff the theater tech support he requested in
-35-
the form of an additional allotment.15 But again, as the cases
relied upon by the Gerner Court demonstrate, employers are only
under an obligation to equitably provide non-contractual
benefits that the employer has provided to others.
Mr. Pankey and Lassiter’s efforts to get a theater tech for
Plaintiff beyond Hillside’s enrollment-based allotment also do
not create a genuine dispute of material fact on this point.
Mr. Pankey’s efforts to get Plaintiff a theater tech were
wrapped up in his proposal to create a “Hillside School of the
Arts.” (Pankey Aff. (Doc. 40-10) ¶¶ 26–27, 32–33.) Such a
request required more from Defendant than just hiring an
additional teacher. (See id.) Defendant’s decision to reject the
creation of a second school of the arts does not support the
Even though Defendant could give the position, Dr. Logan
stated he never had any additional allotments approved, though
he did have at least one request per year from people other than
Plaintiff. (Logan Dep. (Doc. 40-4) at 44, 155–56.) This fact
further undermines Plaintiff’s claim that the Board’s failure to
provide an additional allotment had anything to do with him or
his race.
Dr. Logan also stated that he was told any request for an
allocation above Hillside’s enrollment-based allotment would be
denied since Hillside was over allotted, (id. at 77); the record
separately supports that account. In 2017, Hillside had the
lowest student-to-teacher ratio in the DPS by almost four
students per teacher. (Crabtree Dep. (Doc. 40-3) at 161; Key
Dep. (Doc. 40-5) at 206–08.) In fact, when Dr. Logan first
started at Hillside, he had too many teachers left over from the
School Improvement Grant (“SIG”) allotments given to Hillside
for academic improvement. (Logan Dep. (Doc. 40-4) at 143.)
15
-36-
conclusion that Defendant was discriminating against Plaintiff.
Mr. Lassiter also advocated for such an academy at Hillside by
using funds from a Federal Student Improvement Grant, but “core
area subjects outlasted needs in PE, world languages, and as
we’re now seeing, CTE.” (Key Dep. (Doc. 40-5) at 157; Doc. 40-39
at 11.) Plaintiff has produced no evidence that another school
received SIG funds to hire a theater tech.
There is no genuine dispute of material fact that Defendant
never provided a theater tech allotment to any school, nor did
Defendant ever approve an additional allotment for a school that
it could convert to a classified position, nor has Plaintiff
produced evidence that Defendant provided discretionary funds
for a school to use to hire theater tech support that he did not
receive. Plaintiff, therefore, has not provided any evidence
that Defendant provided the benefit of a theater tech allotment
to one drama teacher that was correspondingly denied to
Plaintiff. To the extent that Plaintiff’s disparate staffing
claim rests on Defendant’s refusal to provide Plaintiff an
allotment above Hillside’s enrollment-based allotment, there is
no genuine dispute of material fact that Defendant did not take
adverse employment action against Plaintiff. See Hishon, 467
U.S. at 75.
-37-
ii.
Plaintiff has not come forward with
Evidence that Defendant’s Requirements
for Hillside were Pretext for
Discriminating Against Plaintiff
Plaintiff also argues that Defendant took an adverse
employment action in the way it prevented Hillside principals
from using their enrollment-based allotments to hire a theater
tech for Plaintiff. (Pl.’s Resp. (Doc. 40) at 9.) Plaintiff does
not contest that Hillside principals were responsible for hiring
teachers, and there is no genuine dispute as to that fact.16
Instead, Plaintiff claims Defendant’s magnet program and
academic achievement priorities meant Hillside principals had to
hire teachers that supported Defendant’s goals, meaning Hillside
did not have the “discretionary allotments” to hire a theater
tech for Plaintiff. (Id.)
Viewing the record in light most favorable to Plaintiff,
the court will assume without deciding that Plaintiff has come
Even Mr. Pankey and Mr. Lassiter implicitly concede that
fact. Mr. Pankey said that Defendant’s priorities meant his
“hands were tied,” since he had to hire teachers to meet
Defendant’s expectations. (Pankey Aff. (Doc. 40-10) ¶ 34.)
Mr. Pankey did not aver that Defendant told him who to hire or
how to meet those requirements. Likewise, Mr. Lassiter said he
had “little true discretion” about what kinds of teachers to
hire since he, too, had to support the IB magnet program and
other academic priorities. (Lassiter Aff. (Doc. 40-11) ¶ 17.)
Mr. Lassiter did not say he did not make hiring decisions, only
that he had to do so within the parameters set by Defendant.
(Footnote continued)
16
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forward with evidence supporting his prima facie case, to
include an adverse employment action, on the theory that
Defendant’s requirements limited Hillside’s discretion on how to
use its enrollment-based allotments.17 However, Plaintiff
Dr. Logan described in detail the process for hiring a new
teacher, a process that starts with a principal identifying a
need, posting a position, and interviewing candidates, and
picking the candidate to hire. (Crabtree Dep. (Doc. 40-3) at
26-27; Logan Dep. (Doc. 40-4) at 43.)
The undisputed record evidence is that Dr. Logan, the
only Hillside principal during the relevant period, exercised
his discretion at least once in choosing to hire a photography
teacher over a theater tech. (Logan Dep. (Doc. 40-4) at 100;
Doc. 40-32 at 4; Casey Dep. (Doc. 40-8) at 91–94.) Dr. Logan
made that decision because there was a higher student demand for
photography than there was for technical theater. (Casey Dep.
(Doc. 40-8) at 93.) Dr. Logan also stated that he initiated the
student registration process for technical theater classes “two
to three times,” but “there wasn’t a demand from the students.”
(Logan Dep. (Doc. 40-4) at 43.) In 2019, Dr. Logan was given a
list of 37 students who were interested in taking technical
theater; as he stated, that number of students justifies a
technical theater class, but not hiring a new fulltime technical
theater teacher. (Id. at 123–24.)
Despite this evidence, Plaintiff has come forward with
other evidence upon which a reasonable jury could rely in
reaching the conclusion that Defendant prevented Hillside
principals from using their enrollment-based allotments to hire
a theater tech. (See Pankey Aff. (Doc. 40-10) ¶ 34; Lassiter
Aff. (Doc. 40-11) ¶¶ 16–20.) Dr. Logan also stated he wanted to
hire a technical theater teacher but could not spare a teacher
allotment. (Crabtree Dep. (Doc. 40-3) at 92.) The Board and
administrators were in agreement that Dr. Logan would have to
use his enrollment-based allotments to hire a theater tech. (Id.
at 40–41.) These facts indicate that the Board both required
Hillside to use their allotments in various ways and also
expected Dr. Logan to use those limited allotments to provide
Plaintiff with the staffing he requested.
17
-39-
himself, through his own affiants, supports the conclusion that
Hillside’s discretion was limited by Defendant for
nondiscriminatory reasons, that was to focus on improving
academic achievement and supporting the IB magnet program.
Plaintiff has come forward with no evidence that Hillside’s
discretion was limited in an effort to deny Plaintiff a theater
tech based on his race.
After a plaintiff establishes his prima facie case, the
employer “must articulate a non-discriminatory reason for the
difference in disciplinary enforcement. Should the employer
articulate such a non-discriminatory reason, the burden shifts
back to the plaintiff to demonstrate that the employer’s reasons
are not true but instead serve as a pretext for discrimination.”
Cook, 988 F.2d at 511. “Once an employer meets its burden of
producing a legitimate, non-discriminatory reason, ‘the
plaintiff may attempt to establish that he was the victim of
intentional discrimination by showing that the employer’s
proffered explanation is unworthy of credence.’” Bibichev v.
Triad Int’l Maint. Corp., 951 F. Supp. 2d 839, 847 (M.D.N.C.
2013) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000)). “[A] reason cannot be proved to be a
pretext for discrimination unless it is shown both that the
reason was false, and that discrimination was the real reason.”
-40-
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). “Under
the McDonnell Douglas framework, in order to survive a motion
for summary judgment, the plaintiff must have developed some
evidence on which a juror could reasonably base a finding that
discrimination motivated the challenged employment action.”
Mackey v. Shalala, 360 F.3d 463, 469 (4th Cir. 2004) (citing
Reeves, 530 U.S. at 148).
Defendant devotes the majority of its briefing to attacking
Plaintiff’s prima facie case as it pertains to an adverse
employment action and the lack of comparator evidence. (See
generally Def.’s Br. (Doc. 39).) Defendant also implicitly
argues that, regardless of Plaintiff’s ability to make out a
prima facie case, the objective way in which teacher allotments
are allocated to schools is a nondiscriminatory reason for
Defendant’s denial of Plaintiff’s staffing request. (See id. at
21.) Defendant makes the argument more explicit in its Reply
when it states that it:
has not argued that DPS high schools have limitless
teacher positions and are not faced with hard choices
about staffing and programs. . . . In emphasizing
Hillside’s need for remedial courses and the existence
of the IB program, Plaintiff is simply highlighting
additional legitimate, non-discriminatory reasons why
-41-
Hillside18 may have not hired another theater teacher
to teach technical theater courses.
(Def.’s Reply (Doc. 43) at 9.) Though that argument was raised
in Defendant’s Reply, Plaintiff was on notice that Defendant had
come forward with evidence of a legitimate, nondiscriminatory
reason for why Defendant’s requirements limited Hillside’s
discretion. (Pl.’s Resp. (Doc. 40) at 15 (“A jury must determine
whether the defense being asserted is a pretext for racially
discriminatory actions by administrators.”).) “[D]istrict courts
may enter summary judgment sua sponte ‘so long as the losing
party was on notice that she had to come forward with all of her
evidence.’” Penley v. McDowell Cnty. Bd. of Educ., 876 F.3d 646,
661 (4th Cir. 2017) (quoting Celotex Corp., 477 U.S. at 326);
cf. Hodgin v. UTC Fire & Sec. Ams. Corp., 885 F.3d 243, 251 n.3
(4th Cir. 2018) (“[W]e may affirm a grant of summary judgment on
any ground that the law and the record permit.” (quoting Thigpen
v. Roberts, 468 U.S. 27, 29–30 (1984)). Plaintiff anticipated
Defendant’s arguments and was on notice that he had to “come
forward with all of his evidence” as to an alleged pretext.
Therefore, the court analyzes Defendant’s proffered
Defendant never concedes that it was not high school
principals who made hiring decisions.
18
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nondiscriminatory reason and Plaintiff’s argument that the
reason is pretextual.
The record contains substantial evidence that Defendant
required Hillside principals to: support the IB magnet program,
which was aimed at increasing racial integration; to improve
standardized test scores; and to provide remedial instruction to
students coming in below grade level. (See, e.g., Logan Dep.
(Doc. 40-4) at 145–48, 152–53.) Indeed, the Pankey and Lassiter
Affidavits provided by Plaintiff affirm that Hillside principals
were required to support core subject areas, boost test scores,
and support the IB magnet program. (Pankey Aff. (Doc. 40-10)
¶¶ 35–36; Lassiter Aff. (Doc. 40-11) ¶¶ 16–17.) Mr. Pankey
averred that “[a]s principal, my hands were tied regarding
hiring new staff. Because of decisions made by the central
administration, I had no discretionary funds or teaching
allotments that I could use.” (Pankey Aff. (Doc. 40-10) ¶ 34.)
All of Mr. Pankey’s allotments “based on student population were
already allocated to positions mandated by the administration
and the School Board to teach the core curriculum of subjects
and the specialized program (like IB) that had been placed at
Hillside.” (Id. ¶ 35.) Additionally, “[t]here was strong
pressure to use any extra positions to enhance the reading and
math skills necessary for the standardized tests.” (Id.)
-43-
Mr. Pankey also averred that his teaching assistant allotments
were dedicated to other “mandatory positions, such as the
Exceptional Children’s Program . . . and the English As a Second
Language Program . . . .” (Id. ¶ 36.)
Mr. Lassiter claimed he had “little true discretion
regarding allotments” for the following reasons:
First, there was intense pressure from the
administration to use the allotments for particular
purposes. Many of the allotments were designated for
the remedial classes needed to help low performing
students in the Hillside population. Other allotments
were designated for academic teachers in the
International Baccalaureate program. Although I would
have been happy to use one of my allotments to hire a
Theatre Tech, the administration required the use of
the allotments for these other purposes. These
programs were a central priority of the
Superintendent’s office, and allotments dedicated to
them were not within a principal’s control.
(Lassiter Aff. (Doc. 40-11) ¶ 17.) Plaintiff does not allege or
provide evidence of any other reasons Defendant might have
limited principal discretion at Hillside regarding allotments.
Plaintiff argues that since the IB magnet program is
designed to increase racial integration, it is “[f]or reasons
related to race [that] positions at Hillside were used for
academic teachers in the IB program, not for hiring a theatre
tech . . . .” (Pl.’s Resp. (Doc. 40) at 19–20.) Regardless of
Plaintiff’s suggestion, Plaintiff must show that the proffered
reason is both false and the real reason for the action was
-44-
discrimination against Plaintiff. Westmoreland v. TWC Admin.
LLC, 924 F.3d 718, 728 (4th Cir. 2019) (citing Reeves, 530 U.S.
at 144–45) (noting that a plaintiff must come forward with
“evidence as to the falsity of the employer’s proffered
reason”). Rather than demonstrate any falsity of Defendant’s
proffered reasons for hiring decisions or any evidence of
discrimination based on race, both Defendant’s evidence and
Plaintiff’s evidence establish that the hiring formulas which
precluded provision of a theater tech had nothing to do with
Plaintiff, his race, or his theater program.
Defendant’s requirements were legitimate and
nondiscriminatory as to Plaintiff. Federal courts have
consistently approved magnet school plans as desegregation
tools. See, e.g., Milliken v. Bradley, 433 U.S. 267, 272 (1977);
Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 403
(4th Cir. 2001).19 As to test scores, Mr. Lassiter noted that
Hillside was one of the schools mentioned in the North Carolina
Plaintiff repeatedly points out that the magnet program
has not been successful in drawing white students to Hillside.
While true, the point is irrelevant. Defendant’s motivation in
creating the program is legitimate, nondiscriminatory, and
completely unrelated to Plaintiff. What is more, the DPS magnet
system as a whole has been successful in increasing racial
balance across the DPS system, even if Hillside has not seen the
same success. (Doc. 40-41 at 57.)
19
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Leandro case during which Judge Manning “mandated that Hillside
had to restructure its program and improve its test scores in
basic skills such as math and reading or be taken over by the
State.” (Lassiter Aff. (Doc. 40-11) ¶ 11.) Even after
Mr. Lassiter made large improvements in test scores during his
tenure at Hillside, the passing rate was still 61%. (Id. ¶ 19.)
There is no genuine dispute of material fact that
Defendant’s requirements for Hillside were legitimate and
nondiscriminatory. St. Mary’s Honor Ctr., 509 U.S. at 515.
Plaintiff’s rebuttal evidence, to the extent he offers it, is
“not sufficient evidence for jurors reasonably to conclude that”
Defendant’s proffered reason is pretext, and summary judgment is
appropriate. Mackey, 360 F.3d at 468–69.
Mr. Pankey’s and Mr. Lassiter’s specific accounts of being
rebuffed by Defendant when requesting theater tech support are
tied to Defendant’s push to improve academic achievement at
Hillside and support the IB magnet program. None of them create
a genuine dispute of material fact regarding pretext.
Mr. Lassiter recounts one encounter with Superintendent
Becoats, an African-American male, where he was “dismissive of
hiring a Theatre Tech for Hillside . . . .” (Lassiter Aff. (Doc.
40-11) ¶ 19.) That heated encounter does not reveal a
discriminatory intent on Defendant’s part. First, it appears
-46-
that Mr. Lassiter was asking Dr. Becoats for an additional
allotment, not permission to use a normal allotment for theater
tech. Mr. Lassiter stated in a separate email to Plaintiff that
he had 30-40 students in core subject classes, and the SIG funds
were the only chance to hire a technical theater teacher. (Doc.
40-39 at 11.) If Mr. Lassiter was asking for an additional
allotment for a theater tech, he was asking for something
Defendant did not provide anyone else. Second, even if
Mr. Lassiter was asking for permission to use an enrollmentbased allotment for a theater tech instead of one for
Defendant’s priorities for Hillside, there are facts surrounding
the event that remove any probative value as to racial
discrimination against Plaintiff. Dr. Becoats is an AfricanAmerican, a fact that makes its less plausible that he was
denying Plaintiff a theater tech because of his race.20 Also,
Mr. Lassiter himself tied the account to concern over test
scores at Hillside. At the time of the event, Hillside’s pass
rate on standardized tests had improved, but was still 61%. For
Plaintiff’s assertion that Dr. Becoats was going along
with Defendant’s allegedly discriminatory scheme to avoid
standing up for a fellow African-American is a bald assertion
that is not supported by the record. (Pl.’s Resp. (Doc. 40) at
12.)
20
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these reasons, Mr. Lassiter’s encounter with Dr. Becoats does
not create a genuine dispute regarding pretext.
In a second account, Mr. Lassiter avers that he proposed
converting a photography teacher spot to a theater tech
position, but his plan was denied after an administrator
reviewed enrollment numbers. (Lassiter Aff. (Doc. 40-11) ¶ 20.)
This account is missing important details, such as how the
position was eventually used. It appears it is related to a 2010
exchange, when Mr. Lassiter told Plaintiff that if an allotment
was restored to Hillside, he was going to use it for
photography/art, not for technical theater. (Key Dep. (Doc.
40-5) at 135; Doc. 40-31 at 12.) The event recounted by
Mr. Lassiter is also outside the limitations period, so even if
it were an actionable adverse employment action, Plaintiff is
too late in raising it. The averment’s scant detail, apparent
connection to Mr. Lassiter’s decision to use a restored
allotment for another purpose, and different decisionmakers
reduce that averment’s probative value.
During his deposition, Plaintiff alleged that Earl Pappy, a
past principal at Hillside, was told by someone in “central
office” that he was not to provide Plaintiff a theater tech.
(Tabb Dep. (Doc. 40-2) at 97.) Plaintiff said it was Terri
Mozingo who said Hillside “was going to go in a different
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direction.” (Id.) In an email from Dr. Mozingo to Plaintiff,
Dr. Mozingo told Plaintiff that, at the time in 2009, Hillside
had a need for Math and English teachers. (Doc. 40-31 at 8.)
Mr. Pappy was on the same email chain that apparently stretched
over a year. (Id. at 9–10.) This encounter is both outside the
limitations period and does not create a genuine factual dispute
about whether Defendant denied technical staffing to Plaintiff
because of his race.
Plaintiff has failed to come forward with evidence that
Defendant’s requirements which limited Hillside’s discretion
were pretextual reasons for discriminating against Plaintiff
based on his race. There is no genuine dispute of material fact
that Defendant required Hillside principals to boost academic
achievement and support a magnet program aimed at improving
racial integration. There is no genuine dispute of fact that
these reasons were not false, nor could any reasonable jury
conclude that “discrimination was the real reason” for the
requirements. St. Mary’s Honor Ctr., 509 U.S. at 515. Plaintiff
has failed to come forward with evidence showing pretext as to
Defendant’s reasons for limiting Hillside’s use of its
enrollment-based allotments.
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iii. No Comparators during the Limitations
Period
Plaintiff has also not come forward with comparator
evidence that would lead a reasonable jury to conclude that
Defendant acted with discriminatory intent toward Plaintiff.21
McLean, 332 F.3d at 719. The undisputed facts reveal that,
during the relevant limitations period, there were no Caucasian
comparators who received preferential treatment.
Plaintiff filed the Complaint on August 9, 2017. (Doc. 1.)
The parties agree that § 1981’s statute of limitations has run
on any claims that occurred prior to August 9, 2013 and of which
Plaintiff was aware. (Pl.’s Resp. (Doc. 40) at 7; Def.’s Reply
Plaintiff points repeatedly to DPS’s long struggle with
race and equity. Plaintiff presents evidence that Hillside is
and always has been underfunded and under-resourced due to its
racial make-up. These arguments are not probative of any racial
animus by Defendant toward Plaintiff as an individual. See Ricci
v. DeStefano, 557 U.S. 557, 577–78 (2009); Chi. Teachers Union,
Local 1 v. Bd. of Educ. of City of Chi., 419 F. Supp. 3d 1038,
1044, 1057 (N.D. Ill. 2020), appeal docketed, No. 20-1167 (7th
Cir. Jan. 31, 2020) (“But under a disparate treatment theory,
plaintiffs must prove that the statistical disparity is the
result of intentional discrimination, and in this case, as the
Court has explained, the statistical evidence is rebutted in
that regard by undisputed evidence that the layoffs were not the
product of intentional discrimination; rather, they were the
product of a regular bureaucratic process by which the number of
positions and amount of funding allocated to particular schools
dropped when the schools’ enrollment dropped, which triggered
layoffs if the drop in positions and funding impelled individual
principals to close positions to balance school budgets.”
(emphasis added)).
21
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(Doc. 43) at 2 n.1.) This court agrees. Jones v. R.R. Donnelley
& Sons Co., 541 U.S. 369, 371, 382 (2004) (noting that a fouryear statute of limitations applies to § 1981 claims brought
pursuant to the 1991 amendments to § 1981); Delaware State Coll.
v. Ricks, 449 U.S. 250, 258 (1980) (noting that the unlawful
practice occurs when the plaintiff is informed of the allegedly
discriminatory practice or decision).
As to Title VII, its enforcement provisions state that “[a]
charge under this section shall be filed within one hundred and
eighty days after the alleged unlawful employment practice
occurred.” 42 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.
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
U.S. 385, 393 (1982) (footnote omitted). It is Plaintiff’s
burden to show that any tolling or estoppel defenses applies.
-51-
See, e.g., Farris v. Shinseki, 660 F.3d 557, 563 (1st Cir.
2011); Ramirez v. City of San Antonio, 312 F.3d 178, 183 (5th
Cir. 2002); McCorkle v. BEB Wright, No. 5:17-CV-117-BO, 2017 WL
3594256, at *2 (E.D.N.C. Aug. 21, 2017); Fulmore v. City of
Greensboro, 834 F. Supp. 2d 396, 415 (M.D.N.C. 2011). Plaintiff
signed his Charge of Discrimination on May 12, 2016; it was
received by the EEOC on May 18, 2016. (Doc. 40-16 at 1.)
Plaintiff does not argue that his discriminatory staffing claim
is a continuing violation, nor is the court aware of any case
that would support that argument. Plaintiff makes no argument
for equitable tolling or estoppel. Therefore, Plaintiff’s Charge
is untimely as to any acts of discrimination that took place
prior to November 20, 2015.
The court continues to find that DSA is not a valid
comparator.22 There is no genuine dispute as to the following
The court continues to find that DSA is an invalid
comparator and that it should not reconsider its previous
judgment, see Jiangment Kinwai Furniture Decoration Co. v. IHFC
Props., LLC, No. 1:14-CV-689, 2015 WL 12911532, at *1 (M.D.N.C.
May 8, 2015) (“[T]he Court will not reward or countenance second
bites at the apple.”), though the record indicates even DSA used
its normal allotments to hire its theater staff.
To help achieve racial balance in its high schools,
Defendant established magnet programs at DSA, Hillside, and
other schools in the district. (Key Dep. (Doc. 40-5) at 31;
Forte-Brown Dep. (Doc. 40-9) at 28–29.) This goal has been
(Footnote continued)
22
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material facts for Jordan and Riverside’s staffing from
August 9, 2013, until August 9, 2017.
During the relevant period, Jordan had one Caucasian
theater teacher, Olivia Bellido. (Crabtree Dep. (Doc. 40-3) at
158; Bellido Aff. (Doc. 43-1) ¶ 3.) Ms. Bellido has been the
only theater teacher at Jordan since 2011. (Bellido Aff. (Doc.
largely attained at DSA, where the student population in 2016
was 35.7% African-American, 35.2% white, and 21.9% Hispanic.
(Doc. 40-41 at 126.)
However, DSA was established “not to bring just white
students. [DSA] was created to bring a central focus on a
program that dedicated itself just to arts, a focus on arts.”
(Forte-Brown Dep. (Doc. 40-9) at 26.) DSA is 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.” (Doc. 40-41 at 125.) High school students at
DSA must declare an art concentration that they pursue all four
years, one of which is theater. (L’Homme Dep. (Doc. 40-6) at
83.) Magnet positions are given to DSA to support its magnet
program, but they are not designated for theater. (Key Dep.
(Doc. 40-5) at 170.) In 2016, DSA only received three magnet
positions in addition to its normal allotment. (Doc. 40-41 at
125.) Almost all of the theater teachers and techs at DSA
support both the middle and high school drama programs. (Casey
Dep. (Doc. 40-8) at 56.)
DSA’s high school and middle school arts focus explains
staffing disparities between it and Hillside. Hillside is not an
arts magnet program, but an IB magnet program. The requirement
that DSA students pick an art concentration means more students
are participating in arts programming, requiring more art
teachers, including theater teachers and techs. These
differences make DSA an invalid comparator from a staffing
perspective, even if Plaintiff has built a drama program of
equal (or even surpassing) artistic quality. Finally, as evinced
by the few magnet positions given to DSA, even DSA did not
receive theater tech allotments from Defendant.
-53-
43-1) ¶ 3.) Despite Ms. Bellido’s repeated requests, Jordan has
not hired a theater tech. (Id. ¶¶ 7–8.)
As for Riverside, starting on August 9, 2013, Riverside had
two drama teachers: Kee Strong, a Caucasian female, and Monique
Taylor, an African-American female. (Casey Dep. (Doc. 40-8) at
34–35.) Andrew Way worked as a theater tech at Riverside from
2013 until June 2015. (Adkins Aff. (Doc. 38-8) ¶ 7.)23 Mr. Way
and Ms. Strong both left Riverside in June 2015, (Casey Dep.
(Doc. 40-8) at 35; Adkins Aff. (Doc. 38-8) ¶ 7), leaving just
Ms. Taylor. Tom Nevels was then hired to work at Riverside but
was only there for several weeks in fall of 2015. (Crabtree Dep.
(Doc. 40-3) at 143), once again leaving just Ms. Taylor. On
January 4, 2016, Will Holley started work as a classified
theater tech; he is still at Riverside. (Id. at 135–36.)
Plaintiff’s argument that Ms. Taylor and Mr. Way were
both hired to support Ms. Strong is unsupported by the record.
Ms. Taylor was hired as a theater teacher before Mr. Way was
hired. Ms. Strong, though she had been at Riverside longer, was
not Ms. Taylor’s supervisor. Defendant has produced unrebutted
evidence that Ms. Strong and Ms. Taylor were both “theater
teachers.” (Adkins Aff. (Doc. 38-8) ¶ 6.) Plaintif
f has
produced no evidence to establish that Ms. Strong supervised Ms.
Taylor. Ms. Taylor’s sealed personnel file includes no
evaluation forms or other evidence that might indicate that Ms.
Strong supervised Ms. Taylor. (See generally Doc. 42-9.) In
making his argument, Plaintiff cites only to a page in Ms.
Taylor’s file that lists her as a “Teacher-Theater Arts.” (Pl.’s
Resp. (Doc. 40) at 16; Doc. 42-9 at 32.)
23
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Plaintiff’s claim is one for disparate treatment as
compared to white teachers. Plaintiff has no direct evidence of
discrimination but proceeds under the McDonnell Douglas
framework to prove discrimination using indirect evidence.
Plaintiff has failed to come forward with valid comparator
evidence that white teachers received the benefit Plaintiff
sought. See Gerner, 674 F.3d at 266 (quoting White, 375 F.3d at
295); see also Cox v. U.S. Postal Serv. Fed. Credit Union, No.
GJH-14-3702, 2015 WL 3795926, at *3 (D. Md. June 17, 2015) (“[A]
plaintiff . . . who bases her allegations entirely upon a
comparison to another employee must demonstrate that the
comparator was similarly situated in all relevant respects.”).
Indeed, the only comparator school that hired any theater techs
from August 9, 2013, until August 9, 2017, was Riverside.
Riverside hired a theater tech to support an African-American
teacher and a Caucasian teacher, and then hired another tech to
support just an African-American teacher. As for Title VII,
there was no staffing at comparator schools within 180 days of
May 18, 2016, that supports the conclusion that Plaintiff was
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discriminated against.24 The only drama teacher at a comparator
school who had technical theater support during that time was
Monique Taylor, an African-American female.
Plaintiff has failed to demonstrate that there is a genuine
issue of material fact that Defendants gave a theater tech to a
Caucasian teacher when it did not give him one. That Defendant
gave a theater tech to another African-American teacher belies
Plaintiff’s theory and evidence of discrimination. Summary
judgment is appropriate on Plaintiff’s technical staffing claims
because no reasonable jury could conclude, based on the facts
during the limitations period, that Defendant acted with
discriminatory intent towards Plaintiff. McLean, 332 F.3d at
719.25 Plaintiff has failed to show there is a genuine dispute of
It is not clear when Plaintiff made his final request for
a theater tech. Plaintiff cites Ms. Casey’s testimony that
Plaintiff was asking for a theater tech the entire time she was
employed by DPS; Ms. Casey retired in June 2019. (Casey Dep.
(Doc. 40-8) at 9, 89.) It is clear from the record that within
180 days of filing his EEOC charge on May 18, 2016, the only
drama teacher at a comparator school with a theater tech was
Monique Taylor, an African-American female.
24
Plaintiff argues that the nondiscriminatory treatment of
one member in the protected class does not mean that another
protected member was not discriminated against. To support that
contention, Plaintiff cites to Davis v. Greensboro News Co.,
Civ. No. C-84-613-G, 1985 WL 5342 (M.D.N.C. Nov. 13, 1985), a
case where an African-American employee was fired and then later
replaced by another African-American. In Brown v. McLean, 159
(Footnote continued)
25
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material fact “that similarly-situated employees outside the
protected class received more favorable treatment” during the
limitations period. Gerner, 674 F.3d at 266 (quoting White, 375
F.3d at 295). No reasonable jury “could return a verdict for the
nonmoving party on the evidence presented.” McLean, 332 F.3d at
719.
c.
Adverse Employment Action Conclusion
In conclusion, the court does not find that Hishon supports
the conclusion that Defendant took an adverse employment action.
A theater tech does not appear to be “part and parcel” of
employment as a high school drama teacher in DPS.
Regardless, there is also no genuine dispute of material
fact that all theater techs at comparator schools were hired
using those schools’ enrollment-based allotments. There is no
genuine dispute of material fact that no school ever received an
additional allotment for a theater tech beyond its enrollment-
F.3d 898, 905 (4th Cir. 1998), the Fourth Circuit addressed the
same principle and listed “exceptions” to the requirement that a
wrongful termination plaintiff show they were replaced by
someone outside the protected class. Plaintiff does not argue
those exceptions apply to his dissimilatory staffing claim.
Further, Davis and the later Fourth Circuit cases require a
court to avoid summarily dismissing wrongful termination claims
because a member of the protected class was hired to replace a
plaintiff. Those cases do not require a court to ignore an
extended pattern where a member of the protected class
repeatedly received the noncontractual benefit Plaintiff sought.
-57-
based allotment, nor did another school receive extra funds to
hire a classified employee to act as a theater tech. In short,
there is no genuine dispute as to whether the Board provided a
benefit to another school that it did not provide to Plaintiff;
it did not. Defendant cannot be held liable for denying
Plaintiff’s request for an additional allotment for a theater
tech when it did not provide it to anyone else. See Hishon, 467
U.S. at 75.
As to Hillside’s use of its enrollment-based allotments,
even assuming Defendant’s actions in fact dictated the hiring
decisions, there is no genuine dispute of material fact
Defendant’s IB magnet program requirements, standardized test
score improvement efforts, and other academic achievement goals
were legitimate, nondiscriminatory reasons for limiting
Hillside’s discretion as to it enrollment-based allotments.
Plaintiff’s evidence, far from showing falsity, supports the
legitimacy of Defendant’s efforts, and Plaintiff has failed to
come forward with any evidence that Defendant’s requirements for
Hillside were related to him in any way. To the extent that
Plaintiff’s staffing claims rests on Defendant’s limitation of
Hillside’s discretion, the evidence is not such that a “juror
could reasonably base a finding that discrimination motivated
the challenged employment action.” Mackey, 360 F.3d at 469.
-58-
B.
Extra Duty Pay
Plaintiff has also failed to come forward with evidence
establishing a genuine dispute of a material fact on his extraduty claim — specifically, Plaintiff has failed to come forward
with any evidence “that similarly-situated employees outside the
protected class received” extra-duty pay when he did not.
Gerner, 674 F.3d at 266 (quoting White, 375 F.3d at 295). Most
of Plaintiff’s evidence supporting his extra-duty pay claim are
his own pleadings and sworn statements. These are insufficient
in light of the evidence produced by Defendant.
The party moving for summary judgment “bears the initial
burden of pointing to the absence of a genuine issue of material
fact.” Temkin v. Frederick Cnty. Comm’rs, 945 F.2d 716, 718 (4th
Cir. 1991) (citing Celotex Corp., 477 U.S. at 322). If the
moving party meets their burden, “[t]he burden then shifts to
the non-moving party to come forward with facts sufficient to
create a triable issue of fact.” Id. at 718–19. “The responding
party ‘may not rest upon mere allegations or denials of his
pleading, but must come forward with specific facts showing that
there is a genuine issue for trial.’” Jefferies v. UNC Reg’l
Physicians Pediatrics, 392 F. Supp. 3d 620, 625 (M.D.N.C. 2019)
(quoting Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008)).
“Mere unsupported speculation is not sufficient to defeat a
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summary judgment motion if the undisputed evidence indicates
that the other party should win as a matter of law.” Francis v.
Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308 (4th Cir. 2006).
Plaintiff’s allegations in his Verified Amended Complaint
states the following:
Upon information and belief, the white Theatre
Directors and other white teachers working in the
theatre programs at Riverside, Jordan and Durham
School of the Arts (identified above) have either not
been asked to do this same type and volume of unpaid
extra work or have been paid an extra-duty payment or
a contractual payment for performing this type of
work.
(Am. Compl. (Doc. 14) ¶ 132.) When questioned during his
deposition, however, Plaintiff only named two Caucasian
individuals who he claimed received extra-duty pay when he did
not: Will Holley and Bill Thomason.26 (Tabb Dep. (Doc. 40-2) at
74.) In opposing Defendant’s Motion for Summary Judgment,
Plaintiff points to only one Caucasian comparator who, Plaintiff
Plaintiff did not provide any evidence, other than his
allegations, about a specific district event Mr. Thomason
received extra-duty pay for working. Plaintiff does not rely on
any comparisons to Mr. Thomason in his Response. (See Pl.’s
Resp. (Doc. 40) at 22.)
The record also includes an uncompleted copy of an extraduty contract for a Jeffrey Whicker. (Doc. 40-34 at 3.)
Plaintiff does not cite to this form, it is not clear who
Jeffrey Whicker is, and the form is for an event in 2019, after
Plaintiff admits he regularly started receiving extra-duty
contracts.
26
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alleges, was given extra-duty pay when Plaintiff was not: Will
Holley of Riverside High School. (See Pl.’s Resp. (Doc. 40) at
22.) However, the evidence neither supports the conclusion that
Mr. Holley was paid when Plaintiff was not, nor does it support
the conclusion that Mr. Holley is a valid comparator.
Plaintiff has only come forward with evidence that
Mr. Holley was given extra-duty pay once for working at a
District event; Defendant has come forward with evidence that
Plaintiff was paid for one district event and received an extraduty contract for another. There is no genuine dispute of
material fact “that similarly-situated employees outside the
protected class received” extra-duty pay when he did not.
Gerner, 674 F.3d at 266 (quoting White, 375 F.3d at 295).
Plaintiff points to one extra-duty contract Mr. Holley was
given for a District CTE awards event on May 1, 2018. (Doc.
40-16 at 117.)27 That single extra-duty contract for Mr. Holley’s
work on one district-wide event does not support Plaintiff’s
contention that Mr. Holley was paid more frequently or better
than Plaintiff was, because Defendant has provided record
Four other extra-duty forms were provided, but those are
for facility rentals. (See Doc. 40-16 at 115, 116, 118, 119.)
Plaintiff does not claim he was not paid for facility rentals.
27
-61-
evidence that Plaintiff himself received at least two different
extra-duty contracts in 2015 before Mr. Holley even started
working at DPS on a fulltime basis. (Tabb Dep. (Doc. 40-2) at
60, 111, 113; Doc. 40-15 at 26–31).28 Other than those two
specific events for which Plaintiff received extra-duty
contracts, Plaintiff also acknowledged at his July 2019
deposition that Defendant was “paying [him] now” for extra-duty
work done at District events. (Tabb Dep. (Doc. 40-2) at 65.) On
March 28, 2017, Plaintiff received another request to complete
an extra-duty contract for a district event. (Doc. 40-34 at
4-5.) That request came before Plaintiff filed the present suit,
but after Plaintiff filed his EEOC Charge. (See Doc. 40-16 at
1.) There is no genuine dispute that Plaintiff was given extraduty contracts prior to filing his suit and before any contracts
offered to Mr. Holley. There is no dispute that, based on the
The copies of the 2015 extra-duty contracts provided by
Defendant had not yet been completed by DPS personnel, meaning
they do not independently establish that Plaintiff was paid,
only that he requested payment. Plaintiff stated he was paid for
the 2015 Summer School graduation. (Tabb Dep. (Doc. 40-2) at 60,
111.) Plaintiff does not recall if he was actually paid for the
2015 CTE event. (Id. at 113.) Plaintiff has never specifically
alleged that he submitted an extra-duty contract only to have it
denied by Defendant, but instead that he made broad requests for
more extra-duty pay. (Id. at 65; see also Am. Compl. (Doc. 14)
¶ 74.)
28
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record Plaintiff has come forward with, Plaintiff got two extraduty contracts when Mr. Holley got one.
Further, Mr. Holley’s uncontroverted testimony is that he,
too, sometimes worked District events without receiving any
extra-duty pay, (Holley Dep. (Doc. 40-7) at 77), an unrefuted
assertion that further undermines Plaintiff’s claim of disparate
treatment. Plaintiff has failed to come forward with evidence
supporting his allegation that Mr. Holley was paid more often
than Plaintiff or somehow treated differently.
Mr. Holley and his company’s contract-based work for DPS
does not serve as a basis for Plaintiff’s claim. As for the work
Mr. Holley was paid for prior to his employment with DPS, it was
done on a contractual basis. (Id. at 29.) Mr. Holley’s payment
during that period cannot support Plaintiff’s claim because he
was not a similarly-situated employee, but an outside
contractor.
Mr. Holley’s earnings through contracts between DPS and his
companies also does not support Plaintiff’s extra-duty pay
claim. During the time before Mr. Holley was hired by Defendant,
Ferret Sound’s predecessor, Holley Johnson Sound, Lighting and
Production Company, received a contract to support DPS’s
“Evening of Entertainment” at the Durham Performing Arts Center.
(Id. at 48–50.) After Mr. Holley was hired at Riverside, DPS
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continued that contract with Ferret Sound for the Evening of
Entertainment. (Id. at 54–55, 63.) That DPS contracted with
Ferret Sound, an external entity, has no bearing on Plaintiff’s
claim that he was denied extra-duty pay while Caucasian teachers
were given it. Holley noted in his deposition that the contract
between Ferret Sound and DPS was a “different contract” than his
extra-duty contract. (Id. at 49.) Payments made to Ferret Sound
were not extra-duty payments for overtime work done by a DPS
employee; they were the product of an external contract. Ferret
Sound is therefore not a valid comparator because it is not a
“similarly situated employee[] outside [Plaintiff’s] class
. . . .” Prince-Garrison v. Md. Dep’t of Health & Mental
Hygiene, 317 F. App’x 351, 353 (4th Cir. 2009).29
Finally, even if Plaintiff had come forward with evidence
that Mr. Holley was treated better than he, Mr. Holley is an
invalid comparator due to Defendant’s classification of
Mr. Holley under the Fair Labor Standards Act (“FLSA”); that
classification makes him more likely to have received extra-duty
pay for after-hours work.
Plaintiff does not contest the propriety of using outside
contractors, nor could he. Plaintiff himself used and paid
outside contractors to support Hillside’s drama program. (Casey
Dep. (Doc. 40-8) at 52.)
29
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The overtime provisions of the FLSA do not apply to: “any
employee employed in a bona fide executive, administrative, or
professional capacity (including any employee employed in the
capacity of academic administrative personnel or teacher in
elementary or secondary schools) . . . .” 29 U.S.C. § 213(a)(1).
“Those faculty members who are engaged as teachers but also
spend a considerable amount of their time in extracurricular
activities such as coaching athletic teams or acting as
moderators or advisors in such areas as drama, speech, debate or
journalism are engaged in teaching.” 29 C.F.R. § 541.303(b)
(emphasis added). Defendant’s 2018–19 employee handbook stated
that “[n]onlicensed employees should not work in excess of
assigned hours without permission . . . of the supervisor. . . .
[N]on-exempt employees will be granted compensatory time in lieu
of compensation for hours worked in excess of 40 hours per work
week.” (Doc. 40-48 at 51.)
Plaintiff appears to clearly fit into the FLSA’s teacher
exemption. By contrast, Mr. Holley is not a certified teacher,
but a classified employee. (Holley Dep. (Doc. 40-7) at 66.) For
that reason, according to DPS’s Executive Director of Budget
Development and Data Analytics, Mr. Holley is considered a
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non-exempt employee under the FLSA. (Modestou Aff. (Doc. 38-9)
¶ 11.)30
Plaintiff does not dispute Defendant’s classification of
Mr. Holley, nor does Plaintiff dispute that Defendant has
consistently classified Mr. Holley as non-exempt. Plaintiff only
argues that the classification is a distinction without merit
since the record does not reflect that Plaintiff was asked to
work overtime because he was an exempt employee. (Pl.’s Resp.
(Doc. 40) at 22.) However, Mr. Holley’s status as a non-exempt
employee, along with Defendant’s awareness of the FLSA
implications, would make it more likely that Defendant’s
administrative personnel ensured Mr. Holley received extra-duty
contracts, explaining any additional efforts made by Defendant
to see that he received an extra-duty contract. (See Holley Dep.
(Doc. 40-7) at 57 (noting that DPS personnel would send him an
extra-duty contract without him having to request one).) Whether
Plaintiff was asked to support events because of his exempt
status is irrelevant; Mr. Holley’s FLSA status and Defendant’s
awareness of it makes him an invalid comparator.
Whether this classification is correct is irrelevant to
this court’s analysis; what matters is that Defendant believed
Mr. Holley to be non-exempt, explaining any difference in
treatment as to extra-duty pay.
30
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In addition to Plaintiff’s failure to come forward with
evidence creating a genuine dispute as to whether similarlysituated Caucasian employees were treated better, Defendant
offers uncontroverted evidence that Plaintiff was not
discriminated against as to extra-duty pay. Ms. Bellido, the
Caucasian female theater director at Jordan, averred that she
does “not receive any extra-duty pay” for her technical theater
support at district events. (Bellido Aff. (Doc. 43-1) ¶ 11.)
Further, Plaintiff was paid $11,000.07 in extra-duty pay
during the period from the 2009-2010 school year until the 20182019 school year. (Modestou Aff. (Doc. 38-9) ¶ 10.) Of that
total, Plaintiff has come forward with evidence that $5,978.75
was for facility rentals, (Doc. 40-17 at 16–20), a category of
pay that Plaintiff does not contest. Subtracting that total,
Plaintiff earned $5,021.32 in extra-duty pay during the period.
Since Plaintiff was apparently paid $30 per hour for extra-duty,
(Doc. 40-15 at 27), that equates to 167 hours of extra-duty pay
for which he was compensated, the equivalent of twenty
eight-hour days of extra-duty work. “No other performing arts
teacher in the district earned more than $2,076 in extra-duty
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pay during the same time-period.” (Modestou Aff. (Doc. 38-9)
¶ 10.)31
Plaintiff offers no evidence to contest those figures.
Plaintiff’s allegation that “the white Theatre Directors and
other white teachers working in the theatre programs at
Riverside, Jordan and Durham School of the Arts” were paid when
Plaintiff was not is untenable in light of the fact that
Plaintiff earned more than double in extra-duty pay than any
other teacher over the same period.32
In sum, Plaintiff has failed to come forward with any
evidence to support his extra-duty pay claim beyond his own
Plaintiff alleges that the “bulk” of that amount comes
from facility rentals. (See Pl.’s Resp. (Doc. 40) at 25 n.5.)
The cited portions of Plaintiff’s deposition do not include any
specifics as to the breakdown of his total extra-duty pay. As
computed above, the invoices for facility rentals show that
Plaintiff earned almost the same amount from facility rentals
that he did from extra-duty pay.
31
This is especially true given the fact that Ms. Bellido,
Jordan’s white theater teacher, was at Jordan from the 2009-2010
school year until the 2018-2019 school year. (Bellido Aff. (Doc.
43-1) ¶ 2.) No argument can be made that she made less in extraduty pay because she was not present during the entire period
cited by Mr. Modestou. Plaintiff offers no evidence about which,
if any, DSA teachers received extra-duty pay when he did not.
Mr. Modestou stated that “[n]o other performing arts teacher in
the district earned more than $2,076 in extra-duty pay during
the same time-period[,]” (Modestou Aff. (Doc. 38-9) ¶ 10
(emphasis added)), a statement that would presumably include
DSA. Plaintiff has offered no evidence or argument to suggest
that it does not.
32
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pleadings and allegations. Plaintiff has also failed to identify
any Caucasian comparators to support his claim that he was
denied extra-duty pay due to his race. Defendant, by contrast,
has offered undisputed evidence that comparable Caucasian
teachers were treated the same as Plaintiff when it came to
extra-duty contracts and pay. Indeed, Defendant has also offered
undisputed evidence that Plaintiff has been treated even better
than his fellow teachers in the amount of extra-duty pay he has
earned. “Mere unsupported speculation is not sufficient to
defeat a summary judgment motion if the undisputed evidence
indicates that the other party should win as a matter of law.”
Francis, 452 F.3d at 308. Summary judgment, therefore, should be
granted as to Plaintiff’s extra-duty claim.
IV.
CONCLUSION
Plaintiff has failed to come forward with evidence
establishing a genuine dispute of material facts as to his
remaining claims. Plaintiff has adduced no evidence “that
similarly-situated employees outside the protected class
received more favorable treatment” during the § 1981 or Title
VII limitations period. Gerner, 674 F.3d at 266 (quoting White,
375 F.3d at 295). Plaintiff has failed to come forward with
evidence showing there is a genuine dispute of material fact as
to whether Defendant provided an additional theater tech
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allotment to any other school or teacher. And Plaintiff has
failed to come forward with evidence showing that Caucasian
comparators were given extra-duty pay when he was not. Summary
judgment should be granted “unless a reasonable jury could
return a verdict for the nonmoving party on the evidence
presented.” McLean, 332 F.3d at 719 (citing Liberty Lobby, 477
U.S. at 247–48). A reasonable jury could not return a verdict of
Plaintiff on this record.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary
Judgment, (Doc. 38), is GRANTED.
IT IS FURTHER ORDERED that this case is DISMISSED WITH
PREJUDICE.
A judgment reflecting this Memorandum Opinion and Order
will be entered contemporaneously herewith.
This the 28th day of September, 2020.
_____________________________________
United States District Judge
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