Houston v. Independent School District No 89 of Oklahoma County Oklahoma et al
Filing
78
ORDER granting in part and denying in part 50 Motion for Summary Judgment; granting in part and denying in part 51 Motion for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 08/07/15. (wh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ARTHUR HOUSTON,
Plaintiff,
vs.
INDEPENDENT SCHOOL DISTRICT
NO. 89 OF OKLAHOMA COUNTY,
OKLAHOMA, a/k/a OKLAHOMA CITY
PUBLIC SCHOOLS, et al.,
Defendants.
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Case No. CIV-12-474-D
ORDER
Before the Court are Defendant District’s Motion for Summary Judgment [Doc.
No. 50] and Defendant Davis’ Motion for Summary Judgment [Doc. No. 51], filed pursuant
to Fed. R. Civ. P. 56. Defendants Independent School District No. 89 of Oklahoma County,
Oklahoma, a/k/a Oklahoma City Public Schools (the “District”) and DeAnn Davis (“Davis”)
seek a judgment as a matter of law on all claims asserted in the Corrected Second Amended
Complaint. Plaintiff has timely opposed the Motions, which are fully briefed. Because both
defendants rely on the same summary judgment record and incorporate each other’s briefs,
and Plaintiff similarly relies on a single statement of facts, the Motions are taken up together.
Factual Background
Plaintiff Arthur Houston, an African American, is a current employee of the District
who served as an elementary school principal from August 2005 through May 2011, when
he was forced to accept a teaching position. Plaintiff was demoted after Davis became
Executive Director of Elementary Schools and his supervisor for the 2010-2011 school year.
Plaintiff also was not selected to fill any of the vacant administrative positions for which he
subsequently applied, allegedly despite superior qualifications. Plaintiff claims Defendants’
actions were motivated by racial discrimination and retaliation for complaints of racial
discrimination made by him and his wife, a former employee. Under the Corrected Second
Amended Complaint, Plaintiff seeks relief from the District under 42 U.S.C. § 1981 and
Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq. (“Title VII”)
for racial discrimination and retaliation, and under 42 U.S.C. § 1983 for violation of his First
Amendment right of free speech; he seeks damages from Davis on his claims under § 1981
and § 1983 and a common law tort claim of interference with his employment contract.
Standard of Decision
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A material fact is one that “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
is genuine if the evidence is such that a reasonable jury could return a verdict for either party.
Id. at 255. All facts and reasonable inferences must be viewed in the light most favorable
to the nonmoving party. Id. If a party who would bear the burden of proof at trial lacks
sufficient evidence on an essential element of a claim, all other factual issues concerning the
claim become immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
2
The movant bears the burden of demonstrating the absence of a dispute of material
fact warranting summary judgment. Celotex, 477 U.S. at 322-23. If the movant carries this
burden, the nonmovant must then go beyond the pleadings and “set forth specific facts” that
would be admissible in evidence and that show a genuine issue for trial. See Anderson, 477
U.S. at 248; Celotex, 477 U.S. at 324; Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671
(10th Cir. 1998). “To accomplish this, the facts must be identified by reference to affidavits,
deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at 671; see
also Fed. R. Civ. P. 56(c)(1)(A). “The court need consider only the cited materials, but may
consider other materials in the record.” See Fed. R. Civ. P. 56(c)(3). The Court’s inquiry
is whether the facts and evidence identified by the parties present “a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson, 477 U.S. at 251-52.
Statement of Undisputed Facts1
Plaintiff was hired by the District in August 2005 to be the principal of Willow Brook
Elementary School (“Willow Brook”), which is located in northeast Oklahoma City and has
a student body that is predominantly African American. Plaintiff holds a bachelor’s degree
in elementary education, a master’s degree in education, and certification as an administrator.
1
This statement includes material facts presented by Defendants that are properly supported and not
opposed in the manner required by Rule 56, as well as additional facts presented by Plaintiff that are properly
supported and not opposed. All facts are stated in the light most favorable to Plaintiff. It should be noted
that Plaintiff did not respond to the Motions in the manner required by LCvR56.1(c) but, instead, began his
brief with his own statement of facts. Then Plaintiff responded to Defendants’ statement of facts by denying
or only partially admitting most facts, but many “denials” simply add information or argument designed to
show that the fact does not preclude recovery. Such attempts to dispute facts evidenced by the record are not
helpful to the Court.
3
He has enjoyed a lengthy career in education that has included positions as a teacher, an
assistant principal, and an elementary school principal in other public school districts.
As principal of Willow Brook, Plaintiff received annual performance evaluations by
several different supervisors, two of whom were African American. For the first four years
of his tenure, Plaintiff received an overall rating of “meets job expectations,” although he
sometimes received a lower or higher rating in a particular category. In June 2010, Plaintiff
was evaluated by Dr. Rochelle Converse (Caucasian) for the 2009-10 school year and
received a “does not meet job expectations” rating. Two areas of concern were low student
test scores and the timely submission of reports. An African-American supervisor had earlier
expressed similar concerns. Plaintiff was informed that a plan of improvement would be
required for the 2010-11 school year.
In the interim, a reorganization plan proposed by then-Superintendent Karl Springer
was approved by the board of education, and the position of Executive Director of
Elementary Education was created. Davis (Caucasian) was selected and approved for the
position. Two principals were promoted to become associate directors of elementary
education, Charles Tompkins (Caucasian) and Patricia Watson-Hunt (African American).
These three administrators divided responsibility for supervision of the District’s elementary
schools among themselves without regard to location, principal, or the school’s performance,
except the associate directors were not assigned to their former schools. Davis was assigned
to Willow Brook and became Plaintiff’s supervisor.
4
On November 5, 2010, Davis issued a written admonishment to Plaintiff regarding his
performance, stating reasons why she found his instructional and operational leadership to
be unsatisfactory and setting requirements to be met during the next 45 days. In addition to
low student test scores, Davis criticized Plaintiff’s employment of a social worker without
an approved contract and Willow Brook’s low score on an “organizational health”
assessment tool utilized by the District. Davis informed Plaintiff that he would be expected
to meet with the District’s leadership consultant every week and he would continue to receive
assistance from an instructional facilitator. On February 11, 2011, Davis met with Plaintiff
and informed him that he had not satisfied her performance requirements. On February 17,
2011, Davis issued a second written admonishment to Plaintiff and stated that another
performance review would occur after March 24, 2011. Plaintiff denies that he failed to meet
Davis’ requirements, and although Plaintiff admits he did not comply with the District’s
contracting policy, he presents evidence that other principals had committed the same
infraction without being disciplined.
During the 2010-11 school year, Willow Brook was being assessed by a support team
assigned by the Oklahoma State Department of Education to assist schools with plans of
improvement regarding student test scores. On March 23, 2011, following a third site visit
to Willow Brook, the team issued a positive report regarding the school’s leadership and
improvements that had been made “due, in large part, to the encouragement and leadership
of the principal.” See Pl.’s Ex. 59 [Doc. No. 68-40], p.8 (ECF numbering).
5
At meetings of the District’s board of education in March and April of 2011, the board
approved re-employment of school principals for the 2011-12 school year. Plaintiff’s name
was not on the lists of principals recommended for re-employment at those meetings.
Instead, on April 25, 2011, Davis met with Plaintiff to discuss his evaluation. They met a
second time on April 29, 2011, for Davis to inform Plaintiff that she had decided not to
recommend his continued employment as principal of Willow Brook. Davis’ stated reasons
were the poor academic performance of Willow Brook during Plaintiff’s six-year tenure as
shown by student test scores, the poor organizational health of the school according to the
District’s assessment tool, repeated failures to follow proper procedures regarding approval
of contracts, and failure to submit timely reports. At this meeting, Plaintiff asked to be
considered for assignment as principal of a smaller school or a position of assistant principal.
Shortly after this meeting, Plaintiff met twice with Mr. Springer to discuss Plaintiff’s
concerns about a declining number of African-American administrators employed by the
District. A meeting on May 2, 2011, was attended by Plaintiff, Mr. Springer, and Linda
Toure (African American), who was one of Plaintiff’s former supervisors. A meeting on
May 3, 2011, was attended by Plaintiff, his pastor (Dr. M.L. Jemison), Mr. Springer, and
Mr. Tompkins. In the second meeting, Plaintiff presented a written “Letter of Concerns” that
purported to list “several areas of concerns which have adversely impacted school
communities . . . in which the majority of African American families reside.” See Def.
District’s Mot. Summ. J., Ex. 18 [Doc. No. 50-18]. The letter is described in greater detail,
infra, in Part D of the Discussion. Davis has testified that Mr. Tompkins informed her about
6
the second meeting because he attended in her place, and although she denies knowing the
contents of the letter, she understood the discussion was “about having too few AfricanAmerican administrators in the district.” See Davis Dep. 166:8-167:15. Mr. Springer
informed Plaintiff during the first meeting that he would not be recommended for continued
employment as principal of Willow Brook. Plaintiff inquired during the second meeting
about reassignment as an assistant principal, and Mr. Springer stated it was unlikely.
On May 15, 2011, Davis prepared a memorandum to Plaintiff regarding his
employment by the District and his request for reassignment, after consulting Mr. Springer
and legal counsel. The memorandum informed Plaintiff that his only option for continued
employment would be a teaching position, and he needed to advise her in writing by May 18,
2011, whether he would accept. Otherwise, she planned to recommend his termination.
Davis also prepared a written recommendation for termination, but it was never presented.
Instead, Plaintiff met with Davis, Mr. Springer, and Ms. Watson-Hunt on May 16, 2011, and
received the May 15 memorandum offering a teaching position. On May 18, 2011, Plaintiff
notified Davis that he agreed to return to teaching but he would continue looking for an
available administrative position within the District. Plaintiff was replaced as principal of
Willow Brook by a Caucasian employee who had previously served as a teacher under his
supervision.
On June 10, 2011, Davis completed Plaintiff’s evaluation for the 2010-11 school year
and gave him a “needs improvement” or “unsatisfactory” rating in almost all areas. Plaintiff
alleges and presents facts designed to show that Davis treated him differently from similarly
7
situated Caucasian principals and her performance-based reasons for demoting him to a
teaching position were pretextual. These facts are addressed in more detail, infra, in Parts B
and C of the Discussion. Plaintiff claims Davis was motivated by racial discrimination and
retaliation for his May 2011 complaint of racial discrimination.2 On September 12, 2011,
Plaintiff filed an EEOC charge of racial discrimination and retaliation regarding his
reassignment.
Plaintiff unsuccessfully applied for numerous positions that became vacant after his
demotion to a teaching position, including assistant principal positions at Roosevelt Middle
School, Taft Middle School, Chavez Elementary School, and Northeast Highland Elementary
School; a principal position at Wheeler Elementary School; and central office positions of
Director of Professional Growth and Development, Director of Recruitment, Deployment and
Retention, and Human Resources Elementary Team Leader. The District uses an electronic
application system and a structured interview process in which all candidates selected for an
interview are asked the same questions. The interviews are conducted by a hiring committee.
Defendants present evidence that Plaintiff was interviewed for some positions but was not
among the top candidates as a result of his interviews. Plaintiff presents evidence that a
notation of “Contact HR” appeared by his name in the electronic system at some point, but
the significance of this notation is unexplained. The person who testified about this fact,
2
Plaintiff also claims Davis was motivated by retaliation for his wife’s federal lawsuit against the
District. However, Plaintiff has no evidence that Davis was aware of the lawsuit, as required to establish
retaliation (see Hennagir v. Utah Dep’t of Corr., 587 F.3d 1255, 1267 (10th Cir. 2009)), or that any causal
connection exists between a lawsuit that ended in June 2010 and Davis’ actions. See Proctor v. United Parcel
Serv., 502 F.3d 1208-09 (10th Cir. 2007) (no inference of causation arises from even a four-month gap).
8
Ms. Watson-Hunt, noticed it when she sat on a hiring committee that interviewed Plaintiff
for a position, but she did not contact human resources and did not know whether anyone
else on the committee did.
Plaintiff claims that less qualified Caucasian candidates were selected for these
positions and the selection decisions were motivated by racial discrimination and retaliation
for his discrimination complaints.3 Plaintiff filed a second EEOC charge in February 2012
after he was not selected for several positions, and amended the charge in August 2012.
Plaintiff received notice of his right to sue on September 13, 2012.4
Discussion
A.
The District’s Liability Under Sections 1981 and 1983
To prevail on a § 1981 claim against the District for race-based discrimination or
retaliation, or a § 1983 claim for retaliation based on protected First Amendment speech,
Plaintiff must establish a basis for municipal liability under § 1983, which does not authorize
respondeat superior liability. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978);
Bolden v. City of Topeka, 441 F.3d 1129, 1137 (10th Cir. 2006) (following Jett v. Dallas
Indep. Sch. Dist., 491 U.S.701 (1989), “damages claims against state actors for § 1981
violations must be brought under § 1983”). Under this standard, Plaintiff must establish that
the challenged actions of the District were “representative of an official policy or custom of
3
Some positions for which Plaintiff applied were filled by African Americans, and he does not
contend these decisions were race-based.
4
Only promotion decisions that were the subject of an EEOC charge will be considered for purposes
of Plaintiff’s Title VII claims against the District. See Shikles v. Sprint/United Management Co., 426 F.3d
1304, 1317 (10th Cir. 2005) (administrative exhaustion is a jurisdictional requirement). Only decisions in
which Davis was involved will be considered for purposes of Plaintiff’s § 1981 claims against Davis.
9
the institution” or were “taken by an official with final policymaking authority.” See Rost
ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1124-25 (10th Cir. 2008).
The District contends its final policymaking authority is the board of education and Plaintiff
lacks any evidence that the board had an official policy or custom of racial discrimination
or retaliation in personnel matters. Plaintiff does not disagree that Oklahoma law confers
policymaking authority regarding employment matters on the District’s board of education.
See Okla. Stat. tit. 70, § 5-117(A)(14).
Plaintiff asserts that he has presented sufficient facts to establish a custom of racial
discrimination by the District. Plaintiff does not contend the District had a policy or custom
of retaliation against persons who complained of racial discrimination or who engaged in
protected speech. Thus, Plaintiff effectively concedes that he cannot establish a basis for
liability of the District on his § 1981 retaliation claim or his § 1983 First Amendment claim.
As support for his assertion that the District had a custom of racial discrimination,
Plaintiff first argues that he “has presented evidence of a steady decline in Black leadership
in recent years.” Pl.’s Resp. District’s Mot. [Doc. No. 67], p.23. Plaintiff cites no facts or
evidence of record to support this argument. The record shows that he complained of a
decline in the number African American administrators but not that there actually had been
a district-wide decline during any particular time period.5 Plaintiff also contends “[t]he fact
5
Plaintiff has presented the affidavit of an African American colleague, Timothy Young, who
resigned from a position of assistant principal in August 2012 after three years of unsuccessfully applying
for principal positions and concluding he had received discriminatory treatment. Mr. Young states that he
observed a decline in “Black Male administrators” between 2008 and 2012. See Young Decl. [Doc.
No. 68-22], ¶ 3. This anecdotal evidence does not address all African American administrators or appear to
be based on district-wide statistics.
10
that . . . complaints of race discrimination were neither addressed nor remedied is evidence
of the District’s widespread custom and practice of discrimination.” Id. The facts cited to
support this argument are ones showing an alleged failure to respond to Plaintiff’s
complaints.
These facts do not suggest a widespread practice or custom of racial
discrimination by the District, as argued by Plaintiff.
Plaintiff also argues that the board’s approval of adverse actions against him – hiring
less qualified Caucasian candidates in positions for which he applied – is discriminatory
action by the final policymaker. Id. at 24. In making this argument, Plaintiff does not point
to any fact showing a race-based decision by the board, only allegedly race-based decisions
by Davis. Plaintiff appears to be arguing for “cat’s paw” liability in which a subordinate’s
bias is imputed to the final decisionmaker. See, e.g., Ward v. Jewell, 772 F.3d 1199, 1205
(10th Cir. 2014). Plaintiff provides no legal authority for imposing municipal liability under
this theory.6 Finally, Plaintiff contends the board delegated final policymaking authority to
Davis with regard to his performance evaluations and reviews. Plaintiff cites no fact or
evidence to suggest that a delegation of such authority occurred.
Because Plaintiff has failed to demonstrate a genuine dispute of material fact
regarding the municipal liability of the District for any racial discrimination, race-based
retaliation, or First Amendment retaliation that may have occurred, the District is entitled to
summary judgment on Plaintiff’s § 1981 and § 1983 claims.
6
The court of appeals has recently stated that a plaintiff asserting a “cat’s paw” claim against a
school district would have to show that this “theory doesn’t run afoul of Monnell’s teaching on municipal
liability.” See Lawrence v. Sch. Dist. No. 1, 560 F. App’x 791, 795-96 (10th Cir. 2014).
11
B.
Liability for Racial Discrimination Under Title VII or Section 1981
Plaintiff asserts a claim of racial discrimination against the District under Title VII
and against Davis under § 1981. Both Title VII and § 1981 prohibit adverse employment
actions based upon an individual’s race, and the elements required to prove a claim under
either statute are the same. See Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th
Cir. 2011); Carey v. City of Denver, 534 F. 3d 1269, 1273 (10th Cir. 2008). Because
Plaintiff relies on circumstantial evidence, his discrimination claims are governed by the
familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). If Plaintiff establishes a prima facie case of discrimination based on race, the burden
shifts to Defendants to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. Id. at 802-03. If Defendants povide such a reason, then the burden
shifts back to Plaintiff to show that the proffered justification is merely a pretext for unlawful
discrimination. McDonnell Douglas, 411 U.S. at 804.
For purposes of summary judgment, Defendants admit that Plaintiff has established
a prima facie case of racial discrimination in both his demotion from principal to teacher and
subsequent failures to promote Plaintiff to another administrative position. See District’s
Mot. Summ. J. [Doc. No. 50], pp.23-24. Defendants rely on Davis’ performance-based
reasons for removing Plaintiff as principal of Willow Brook and the testimony of decisionmakers for other positions that Plaintiff lacked the necessary knowledge or skills for higherlevel positions. To avoid summary judgment, Plaintiff must demonstrate that “there is a
genuine issue of material fact regarding whether the . . . justification was pretextual.”
12
Montes v. Vail Clinic, Inc., 497 F. 3d 1160, 1173 (10th Cir. 2007) (citing Young v. Dillon
Cos., 468 F.3d 1243, 1249 (10th Cir. 2006)). To establish that the proffered reason is a
pretext for discrimination, a plaintiff can show that the reason is “‘so incoherent, weak,
inconsistent, or contradictory that a rational factfinder could conclude the reasons were
unworthy of belief.’” Id. (quoting Young, 468 F. 3d at 1249). However, “[e]vidence of
pretext may take any number of forms, including evidence the plaintiff was treated
differently from other similarly-situated employees . . . .” Smothers v. Solvay Chems., Inc.,
740 F.3d 530, 539 (10th Cir. 2014) (internal quotation omitted).
1. Demotion
Defendants contend the undisputed facts show that Plaintiff was not performing
satisfactorily as the principal of Willow Brook – as evidenced by low student test scores and
the school’s poor organizational health rating – and that other elementary school principals
with similar performance issues were also removed. Defendants rely on facts regarding
employment actions taken against five Caucasian principals during the 2010-11 school year,
one of whom was allegedly demoted to a teaching position. Defendants also rely on Davis’
involvement in the demotion, termination, resignation, or retirement of fourteen principals
other than Plaintiff for unsatisfactory performance during her tenure as Executive Director
of Elementary Education or Regional Executive Director (a prior position) – nine Caucasians
and five African Americans – and the hiring or promotion of five African-American
administrators at her recommendation during this time period.
13
Plaintiff presents facts to show, however, that Davis supervised only seven of the
fourteen elementary school principals who were demoted or separated from employment –
five Caucasians and two African Americans – and that the reasons for employment actions
regarding these individuals are disputed. Plaintiff points out that a Caucasian principal
allegedly demoted to a librarian position and a Caucasian principal allegedly demoted to a
teaching position for poor performance were supervised by others. Plaintiff presents facts
showing that two Caucasian principals supervised by Davis voluntarily took assistant
principal positions while an African American principal supervised by Davis was forcibly
demoted to assistant principal, and that the other African American principal supervised by
Davis was not recommended for re-employment and elected to retire while a Caucasian
principal supervised by Davis was recommended for re-employment but elected to retire.
Another Caucasian supervised by Davis was not asked to retire but voluntarily did so.
Plaintiff also compares his performance, as shown by Willow Brook’s satisfaction of certain
performance criteria, with those of other elementary school principals who were
recommended for re-employment.
Viewing all of the facts and evidence presented by Plaintiff in the manner most
favorable to him, as required by Rule 56, the Court finds that Plaintiff has made a minimally
sufficient showing to permit a reasonable finding of disparate treatment based on race in
Davis’ decision to remove Plaintiff as principal of Willow Brook and not offer him another
administrative position. In reaching this conclusion, the Court is constrained by Rule 56 to
accept Plaintiff’s evidence as true and to draw all reasonable inferences in his favor,
14
regardless whether the Court would itself draw the same inferences. Thus, with respect to
Plaintiff’s claim of racial discrimination in his demotion from principal to teacher, the Court
finds that a genuine dispute of material facts precludes summary judgment on Plaintiff’s
racial discrimination claims against Defendants.
2. Failure to Promote
Defendants contend the evidence shows the promotion decisions about which Plaintiff
complains were based on the interviewers’ and decision-maker’s assessments of Plaintiff’s
qualifications for the higher-level positions. Plaintiff contends other facts show the stated
reasons for failing to select him are pretextual. He relies on his higher level of education
than Caucasians who were selected for some positions and his greater years of experience
in education or administration than some successful Caucasian candidates. Plaintiff also
points out that Davis was involved in three hiring decisions and was consulted in another,
and that other African Americans experienced difficulty in obtaining administrative positions
during Davis’ tenure.
Upon careful consideration of the summary judgment record, the Court finds that
Plaintiff has failed to make a sufficient showing of pretext. As to the relative merits of
individual employees for particular positions, the Tenth Circuit has cautioned against relying
on differences between qualifications of a plaintiff and a successful applicant to establish
pretext. “To show pretext, the disparity in qualifications must be overwhelming.” Jaramillo
v. Colorado Judicial Dep’t, 427 F.3d 1303, 1309 (10th Cir. 2005); accord Santana v. City
of Denver, 488 F.3d 860, 865 (10th Cir. 2007). An inference of pretext is appropriate only
15
“where ‘the facts assure us that the plaintiff is better qualified than the other candidates for
the position.’” Santana, 488 F.3d at 865 (quoting Jones v. Barnhart, 349 F.3d 1260, 1267
(10th Cir. 2003)). Plaintiff cites differences between his credentials and those of successful
candidates but makes no effort to demonstrate that he was better qualified for any particular
position. In fact, he does not state what qualifications were needed for any of the positions
for which he applied. The very limited evidence presented by Plaintiff regarding the
challenged promotion decisions is insufficient to show that he was overwhelmingly more
qualified for the positions than the individuals who were selected.
Plaintiff also provides an insufficient basis for holding Davis liable for any of the
selection decisions about which he complains. The facts do not suggest that Davis was the
decision-maker for any challenged decision; they show only that she was a member of the
hiring committee for three positions and was consulted in the decision-making process for
another. Plaintiff appears to be relying on a “cat’s paw” theory “under which an employer
may be held liable for the discriminatory animus of an employee who influenced, but did not
make, the ultimate adverse employment decision.” See Crowe, 649 F.3d at 1194.7 “But the
theory does not apply when decision-makers conduct their own investigations without
relying on biased subordinates.” See Ward, 772 F.3d at 1205. Here, Plaintiff fails to show
that any influence by Davis in the decision-making process for four positions resulted in the
adoption of her allegedly biased opinion, assuming bias is found. The hiring committee for
7
This theory might also allow an individual employee who caused the employer to discriminate to
be personally liable under § 1981. See Smith v. Bray, 681 F.3d 888, 898-99 (7th Cir. 2012); Lewis v. Denver
Fire Dep’t, 943 F. Supp. 2d 1173, 1190 (D. Colo. 2013).
16
each position conducted its own interviews of the candidates, and the entire committee was
responsible for ranking the candidates’ qualifications for the position.
In short, the Court finds that Plaintiff has not demonstrated a genuine dispute of
material fact as to whether the District’s reasons for not selecting Plaintiff for the challenged
positions are pretextual. Therefore, Plaintiff has failed to establish a genuine factual issue
regarding his claim that the decisions not to promote him were motivated by racial
discrimination, and Defendants are entitled to summary judgment on these claims.
C.
Liability for Retaliation Under Title VII or Section 1981
Plaintiff’s claims of unlawful retaliation under Title VII and § 1981 are similarly
governed by the McDonnell Douglas burden shifting analysis. See Pinkerton v. Colo. Dep’t
of Transp., 563 F.3d 1052, 1064 (10th Cir. 2009); Somoza v. Univ. of Denver, 513 F.3d 1206,
1210 (10th Cir. 2008). To satisfy his prima facie burden, Plaintiff must show 1) he engaged
in protected opposition to discrimination; 2) his employer subsequently took action that a
reasonable employee would have found materially adverse; and 3) a causal connection exists
between his protected activity and the adverse action. See Metzler v. Federal Home Loan
Bank, 464 F.3d 1164, 1171 (10th Cir. 2006); see also Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 67-68 (2006).
To constitute protected opposition to discrimination, Plaintiff need not have filed a
formal charge with the EEOC; protected activity may consist of “complaining informally to
supervisors.” Medina v. Income Support Div., 413 F. 3d 1131, 1135-36 (10th Cir. 2005);
Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004). Defendant admits this
17
element is satisfied, at least as to employment actions taken after Plaintiff complained to
Mr. Springer of racial discrimination in May 2011. Davis’ admonishments to Plaintiff and
any disciplinary action taken before that time cannot form the basis of a retaliation claim.
For purposes of summary judgment, Defendants concede “that Plaintiff’s demotion
to a teaching position and his allegations regarding the failure to promote constitute
materially adverse actions.” See Def. District’s Mot. Summ. J. [Doc. No.50], p.28. Thus,
the second element of Plaintiff’s prima facie showing is satisfied.
Defendants contend, however, that Plaintiff cannot satisfy the third element because
he has failed to show a causal connection between protected activity and an adverse action.
An inference that the decision not to offer Plaintiff another administrative position was made
within days or weeks after he complained to Mr. Springer of racial discrimination is some
evidence of a causal connection; close temporal proximity alone has been considered
sufficient to establish the causation element of a prima facie retaliation case. See Hennagir
v. Utah Dep’t of Corr., 587 F. 3d 1255, 1266-67 (10th Cir. 2009); Annett v. Univ. of Kans.,
371 f3de 1233, 1240 (10th Cir. 2004). As to subsequent decisions not to select Plaintiff for
some positions for which he applied, Plaintiff makes no effort to establish a temporal
relationship between his complaint to Mr. Springer and those decisions. He instead argues
that some decisions were made shortly after his EEOC filings. Because the burden to
establish a prima facie case is “slight,” the Court finds that Plaintiff has sufficiently met that
18
burden. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 n.4 (10th Cir. 2013); Orr v. City of
Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005).8
Anticipating that the Court might reach this conclusion, Defendants also contend that
legitimate, non-retaliatory reasons for the challenged decisions have been shown and Plaintiff
cannot establish pretext. Tenth Circuit law is clear that close temporal proximity is not
sufficient, without more, to show pretext and overcome an employer’s justifiable reasons for
its adverse actions. See Pinkerton v. Colo. Dep’t of Transp., 563 F. 3d 1052, 1066 (10th Cir.
2009). In this case, the District’s evidence shows the demotion to a teaching position was
consistent with Davis’ criticisms of Plaintiff’s job performance well before he voiced a
complaint of racial discrimination, thus presenting a justifiable reason for the demotion
decision. The District’s evidence shows that the promotion decisions were the result of a
structured interview process conducted by hiring committees, some of which were unaware
of Plaintiff’s discrimination complaints. Plaintiff fails to point to any facts from which to
infer that the challenged decisions were actually motivated by retaliation.9
8
Of course, to establish a causal connection, Plaintiff must show that the person making the adverse
decision was aware he had exercised protected rights. See Hennagir, 587 F.3d at 1267; Jones v. United
Parcel Serv., Inc., 502 F.3d 1176, 1195 (10th Cir. 2007). Although the District and Davis contend the
decision to remove Plaintiff as Willow Brook’s principal was made before he first complained of racial
discrimination, one could infer from the facts presented by Plaintiff that Davis was aware of his May 2011
complaint to Mr. Springer when the final decision was made to demote him to a teaching position. One could
also infer that the District was aware of Plaintiff’s EEOC filing when subsequent selection decisions were
made. Although Plaintiff has not shown that all of the hiring committees were aware of his EEOC charges,
the Court will assume for purposes of a prima facie case that the District’s knowledge was sufficient.
9
One circumstance that might arguably bear on causation is the sheer number of Plaintiff’s
unsuccessful promotion attempts during a one-year period. See Davis v. Unified Sch. Dist. 500, 750 F.3d
1168, 1172-73 (10th Cir. 2014). Because Plaintiff does not make this argument, however, the Court declines
to address it.
19
Upon careful consideration of Plaintiff’s arguments and the summary judgment
record, the Court finds that Plaintiff has failed to demonstrate a genuine dispute of material
fact regarding his race-based retaliation claim. Therefore, Defendants are entitled to
summary judgment on this claim.
D.
Liability for a First Amendment Violation
Because Plaintiff has failed to establish a basis for municipal liability of the District
under § 1983 for any First Amendment violation that occurred, the issue presented for
decision with respect to this claim is whether Plaintiff can establish a basis for individual
liability of Davis on his First Amendment claim. In defense of this claim, Davis asserts
qualified immunity.
To establish a § 1983 claim against an individual defendant asserting the defense of
qualified immunity, Plaintiff must show facts that “make out a violation of a constitutional
right” and demonstrate that “the right at issue was ‘clearly established’ at the time of
defendant’s alleged misconduct.” See Pearson v. Callahan, 555 U.S. 223, 231 (2009); see
also Saucier v. Katz, 533 U.S. 194, 201 (2001). To establish a First Amendment violation
by Davis, who was not Plaintiff’s employer, he “must satisfy three elements: ‘(1) that the
plaintiff was engaged in constitutionally protected activity; (2) that the defendant’s actions
caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from
continuing to engage in that activity; and (3) that the defendant’s adverse action was
substantially motivated as a response to the plaintiff’s exercise of constitutionally protected
20
conduct.’” Trant v. Oklahoma, 754 F.3d 1158, 1169-70 (10th Cir. 2014) (quoting Worrell
v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000)).
It is well established that “the First Amendment protects a public employee’s right,
in certain circumstances, to speak as a citizen addressing matters of public concern.”
See Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); see also Connick v. Myers, 461 U.S. 138,
147 (1983); Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). To establish First
Amendment protection, a public employee must satisfy the pertinent elements of the
Garcetti/Pickering test. See Trant, 764 F.3d at 1170. Here, the pertinent elements are:
“‘(1) whether the speech was made pursuant to an employee’s official duties; [and] (2)
whether the speech was on a matter of public concern.’” See Dixon v. Kirkpatrick, 553 F.3d
1294, 1302 (10th Cir. 2009) (quoting Brammer-Hoelter v. Twin Peaks Charter Academy, 492
F.3d 1192, 1202 (10th Cir.2007)).10 These elements present “issues of law to be decided by
the court.” Id.; see also Trant, 754 F.3d at 1165.
“The Tenth Circuit’s decisions addressing the first step of the Garcetti/Pickering
analysis ‘have taken a broad view of the meaning of speech that is pursuant to an employee’s
official duties.’” Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 746 (10th Cir.
2010) (quoting Thomas v. City of Blanchard, 548 F.3d 1317, 1324 (10th Cir. 2008)); see also
Casey v. West Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1331 (10th Cir. 2007) (describing
the first prong of the analysis as a “heavy barrier”). However, the court of appeals has not
announced bright line rules, but “has taken a case-by-case approach, looking both to the
10
Defendants do not challenge the third element of the Garcetti/Pickering test.
21
content of the speech, as well as the employee’s chosen audience, to determine whether the
speech is made pursuant to an employee’s official duties.” Rohrbough, 596 F.3d at 746.
While “speech directed at an individual or entity within an employee’s chain of command
is often found to be pursuant to that employee’s official duties,” this factor is not dispositive.
See id. at 747. “[T]he proper focus is ultimately still whether the speech ‘stemmed from and
[was of] the type . . . that [the employee] was paid to do,’ regardless of the exact role of the
individual or entity to which the employee has chosen to speak.” Id. (quoting Green v. Bd.
of County Comm’rs, 472 F.3d 794, 798 (10th Cir. 2007); alterations in Rohrbough).
In this case, Plaintiff spoke directly to the District’s superintendent and others who
attended two meetings between them. The parties disagree whether the attendees at these
meetings were within Plaintiff’s chain of command as an elementary school principal, but
as stated above, this factor is not dispositive. The content of Plaintiff’s speech is reflected
in a written “Letter of Concerns” presented to Mr. Springer during the second meeting. See
Def. District’s Mot. Summ. J., Ex. 18 [Doc. No. 50-18].11 The stated purpose of the Letter
was to provide notice of “several areas of concerns which have adversely impacted school
communities on the northeast/central Oklahoma sides of town, in which the majority of
African American families reside.” See id. Although a number of the enumerated concerns
appear to relate to Plaintiff’s personal circumstances, the Letter speaks to broader issues
about how the District was addressing a lack of racial diversity among administrators and the
11
A copy of this Letter appears at various places in the case record, but the Court cites only one.
22
unique challenges faced by administrators at low performing schools.12 The Letter reflects
that copies would be sent to the board of education, the Oklahoma City Chapter of the
National Alliance of Black School Educators, and the NAACP. Although Plaintiff admits
he never actually mailed copies of the Letter to these organizations, the Court finds under the
circumstances presented that Plaintiff’s speech did not fall within his official duties as a
school principal.
“Whether an employee’s speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed by the whole
record.” See Connick, 461 U.S. at 147-148. “Speech is a matter of public concern if it is of
interest to the community, and we focus on the motive of the speaker and whether the speech
is calculated to disclose misconduct or merely deals with personal disputes and grievances
unrelated to the public’s interest.” Trant, 754 F.3d at 1165 (internal quotations and citations
omitted); see Brammer-Hoelter, 492 F.3d at 1205. “[P]ublic concern is something that is a
subject of legitimate news interest; that is, a subject of general interest and of value and
concern to the public at the time of publication.” See City of San Diego v. Roe, 543 U.S. 77,
83-84 (2004).
Viewing the facts and evidence in the light most favorable to Plaintiff, as required by
Rule 56, the Court finds that Plaintiff has sufficiently shown he was speaking to Mr. Springer
regarding a matter of public concern. Although it presents a close question, the Court finds
12
As stated by Defendants, “[t]he purpose of Plaintiff’s letter appears to be to advocate for additional
resources for students and administrators at low performing schools.” See Def. Davis’ Mot. Summ. J. [Doc.
No. 51], p.5.
23
that Plaintiff’s speech was not merely dealing with a personal grievance unrelated to the
public interest but spoke to broader issues within the District of racial diversity, sound
educational strategies, and their impact on African American families and students.
Accordingly, Plaintiff has demonstrated that he was engaged in speech protected by the First
Amendment.
Regarding the second element of Plaintiff’s § 1983 claim against Davis, the Court
finds that Davis’ action after Plaintiff’s speech of requiring him to accept a demotion in order
to remain employed by the District, could be found to cause an injury that would chill a
reasonable person from continuing to engage in further protected activity.
Turning to the third element, the court of appeals has explained the proper analysis
as follows:
At the summary judgment stage, some facts must demonstrate the
defendants acted on the basis of a culpable subjective state of mind to satisfy
the third step. If the defendant’s intent in urging adverse action against the
employee is not retaliatory (e.g., if the defendant identifies legitimate problems
with employee’s qualifications or performance) or if the defendant’s conduct
did not cause the adverse action, then the defendant may successfully defend
the retaliation claim. And temporal proximity between the protected speech
and the alleged retaliatory conduct, without more, does not allow for an
inference of a retaliatory motive.
Trant, 754 F.3d at 1170 (internal quotations and citations omitted).
Plaintiff has presented no facts or evidence, besides temporal proximity, that might
establish Davis’ action of forcing him to accept a demotion to a teaching position was
substantially motivated by his constitutionally protected speech.
Although Plaintiff
challenges whether Davis’ stated reasons for her action were legitimate or pretextual, it is
24
undisputed that her criticisms of Plaintiff’s performance as a principal predated his speech
and formed the basis of her decision not to recommend his re-employment in that position.
Plaintiff points to no fact from which to reasonably infer that his meetings with Mr. Springer
played any part in Davis’ action against him.
Therefore, the Court finds that Plaintiff has failed to demonstrate a genuine dispute
of material fact regarding his claim that a First Amendment violation occurred, and that
Davis is entitled to summary judgment on this claim.
E.
Tort Liability for Interference with Contract
Davis contends that all of her actions with regard to Plaintiff’s employment were done
as part of her job duties as Executive Director of Elementary Schools and that Plaintiff lacks
any facts to show she was acting outside of the scope of her employment, thus precluding a
tortious interference claim against her under Oklahoma law and the Governmental Tort
Claims Act, Okla. Stat. tit. 51, §§ 151-72. In response to these arguments, Plaintiff states he
“concedes this issue.” See Pl.’s Resp. Def. Davis’ Mot. Summ. J. [Doc. No. 69], p.11.
Therefore, Davis is entitled to summary judgment on Plaintiff’s tort claim.
Conclusion
For these reasons, the District is entitled to summary judgment on Plaintiff’s § 1981
claims of racial discrimination and retaliation asserted in Count I of the Corrected Second
Amended Complaint, the § 1983 First Amendment claim asserted in Count V, and the
Title VII claim of retaliation asserted in Count III. Davis is entitled to summary judgment
on Plaintiff’s of § 1981 claim of retaliation asserted in Count I, the claim of tortious
25
interference with contract asserted in Count IV, and the § 1983 First Amendment claim
asserted in Count V. Genuine disputes of material facts exist as to Plaintiff’s Title VII claim
against the District for racial discrimination in Count II and Plaintiff’s § 1981claim against
Davis for racial discrimination asserted in Count I.
IT IS THEREFORE ORDERED that Defendant District’s Motion for Summary
Judgment [Doc. No. 50] and Defendant Davis’ Motion for Summary Judgment [Doc. No. 51]
are GRANTED in part and DENIED in part, as set forth herein.
IT SO ORDERED this 7th day of August, 2015.
26
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