HENDRICKS v. PITTSBURGH PUBLIC SCHOOLS

Filing 49

MEMORANDUM OPINION & ORDER indicating that, for reasons more fully stated within, Defendant's Motion is granted, in part, and denied, in part. The Motion is granted, to the extent that the Court's Memorandum Opinion 34 , is amended, only to correct the Court's error in finding that Leah Rae Bivins ("Ms. Bivins") was the Vice Principal of Faison during the 2009-2010 school year. The third sentence in the first paragraph of Section II.A., id., now shall state: For the 2 009-2010 school year, JoAnn Hoover ("Ms. Hoover") was the Vice Principal and Yvonna K. Smith ("Ms. Smith") was the Principal." The Motion is denied in all other respects; that a Status Conference is hereby scheduled for 2/17/15 at 9:00 a.m., in Courtroom 5B, to set a trial date and establish deadlines for the Court's Pretrial Order. Signed by Judge Nora Barry Fischer on 2/10/15. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PAMELA F. HENDRICKS, an adult
individual,
Plaintiff,
v.
PITTSBURGH PUBLIC SCHOOLS,
Pittsburgh Faison Primary Campus,
Defendant.

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Civil Action No. 13-491
Judge Nora Barry Fischer

MEMORANDUM OPINION AND ORDER
AND NOW, this 10th day of February, 2015, upon consideration of Defendant’s Motion
for Reconsideration, (Docket No. 36), and Brief in Support, (Docket No. 37), Plaintiff’s
Response in Opposition, (Docket No. 39), Defendant’s Reply, (Docket No. 44), Plaintiff’s SurReply, (Docket No. 47), and the Court having convened Argument on said Motion, (Docket No.
48),
IT IS HEREBY ORDERED that Defendant’s Motion is GRANTED, in part, and
DENIED, in part. The Motion is GRANTED, to the extent that the Court’s Memorandum
Opinion, (Docket No. 34), is AMENDED, to correct the Court’s error in finding that Leah Rae
Bivins (“Ms. Bivins”) was the Vice Principal of Faison during the 2009-2010 school year. The
third sentence in the first paragraph of Section II.A., id., now shall state: “For the 2009-2010
school year, JoAnn Hoover (“Ms. Hoover”) was the Vice Principal and Yvonna K. Smith (“Ms.
Smith”) was the Principal.” The Motion is DENIED in all other respects. For the reasons that
follow, the correction of this factual error does not cause this Court to alter its holding in denying
Defendant’s Motion for Summary Judgment on the race discrimination claim. (Id.).
1

I. STANDARD OF REVIEW
The purpose of a motion for reconsideration “is to correct manifest errors of law or fact
or to present newly discovered evidence.” Kabacinski v. Bostrom Seating, Inc., 98 F. App’x 78,
81 (3d Cir. 2004) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). Because
“federal courts have a strong interest in the finality of judgments,” United States v. Hoey, 2011
WL 748152, at *2 (W.D.Pa. Feb.15, 2011) (citation omitted), the standard that must be met to
prevail on a motion for reconsideration is high, see Berry v. Jacobs IMC, LLC, 99 F. App'x 405,
410 (3d Cir. 2004). The United States Court of Appeals for the Third Circuit explains that:
[s]uch motions “are granted for ‘compelling reasons,’ such as a
change in the law which reveals that an earlier ruling was
erroneous, not for addressing arguments that a party should have
raised earlier.” Solis v. Current Dev. Corp., 557 F.3d 772, 780 (7th
Cir. 2009) (internal citations omitted). Though “[m]otions to
reconsider empower the court to change course when a mistake has
been made, they do not empower litigants ... to raise their
arguments, piece by piece.” Id.
United States v. Dupree, 617 F.3d 724, 732-33 (3d Cir. 2010).
The Court may grant a motion for reconsideration if the moving party shows: (1) an
intervening change in the controlling law; (2) the availability of new evidence which was not
available when the court issued its order; or (3) the need to correct a clear error of law or fact or
to prevent a manifest injustice. United States v. Perminter, 2012 WL 642530, at *3 (W.D. Pa.
Feb. 28, 2012) (citing Max's Seafood Café by Lou–Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d
Cir. 1999)). A motion for reconsideration is not a tool to re-litigate and reargue issues which
have already been considered and disposed of by the Court, see Hoey, 2011 WL 748152, at *2
(citation omitted), or for addressing arguments that a party had the opportunity to raise before the
2

Court's decision, see United States v. Dupree, 617 F.3d 724, 732–33 (3d Cir. 2010) (quotations
omitted). Rather, such a motion is appropriate only where the court misunderstood a party or
where there has been a significant change in law or facts since the Court originally ruled on that
issue. Hoey, 2011 WL 748152, at *2.
II. ANALYSIS
1. Implication of the Court’s Factual Error
Defendant argues that, because the Court misclassified Bivins as Vice Principal for the
2009-2010 school year, the Court must reconsider its denial of summary judgment on the race
discrimination claim. (Docket No. 37). Specifically, Defendant contends that “there is
undisputed record evidence that Bivins played no role (and was not even an administrator at
Faison that year) when Plaintiff was placed on her first EIP and when she received her first
Unsatisfactory rating.” (Docket No. 37 at 4). Plaintiff avers that Ms. Bivins did observe her “on
several occasions during the subject year.” (Id.). Nevertheless, Plaintiff maintains that it is of no
consequence whether Bivins was the primary observer, as Ms. Bivins had the “final say” on the
second unsatisfactory rating that directly led to Plaintiff’s termination. (Docket No. 39 at 2);
(Docket No. 25-2 at 75).
Notwithstanding the factual error which was corrected by this Court, supra, Defendant
has not provided this Court with any basis to grant its motion for summary judgment as to the
race discrimination claim.1 In this Court’s estimation, the record supports Plaintiff’s contention
that Ms. Bivins was Plaintiff’s superior during the 2010-2011 school year, (Docket Nos. 24, 33
at ¶¶ 23-24); did conduct observations, (Id. at ¶ 53); (Docket No. 30-1 at 13:10-19); and did
1

This Court’s Memorandum Opinion, (Docket No. 34), set forth the applicable standard of review and law on this
issue. As such, the Court does not restate same herein.

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recommend her for the second unsatisfactory rating, (Docket Nos. 24, 33 at ¶ 59). Despite
Defendant’s argument that Ms. Bivins “had no involvement in Plaintiff’s first EIP and
unsatisfactory rating” and that Ms. Hoover was the primary observer during both years in
question, Ms. Bivins’ name is listed on the “Administrator” line at the bottom of a Student
Behavior Referral dated December 3, 2009. (Docket No. 25-2 at 45).
Moreover, during that year, Lora Bethea (“Ms. Bethea”) testified that Ms. Bivins split the
staff; some people were to be supervised by Ms. Hoover, the Vice Principal, and some people
were to be supervised by Ms. Bivins. (Id. at 8:20-23). Special education and primary teachers
were to be supervised by Ms. Hoover. (Id. at 8:23-24). Plaintiff was a special education teacher.
(Docket Nos. 24, 33 at ¶ 19). There is evidence in the record, however, that at some point, Ms.
Bivins began to supervise Plaintiff and did play a role in the 2009-2010 school year. See, e.g.
(Docket No. 25-2 at 45) (Student Behavior Referral prepared by Administrator L. Bivins and
dated 12/3/2009). In her deposition, Ms. Bivins could not pin-point her roles at Faison during the
relevant time period:
Q:
A:

When were you vice principal, and when were you
principal?
. . . I believe I was assistant principal there in — I don’t
know — I think 2009. See, I don’t know. I was back and
forth there about six times throughout my career. But I
know most likely from 2008 to 2010 or so I served either as
assistant principal there, interned there, or acting principal
there.

(Docket No. 30-1 at 6:14-23). Ms. Bivins was asked if she had duties to oversee Plaintiff when
she was a teacher at Faison. (Id. at 9:24-10:1). She responded, “Yes. During the time which I was
assistant principal — I’m not sure when she came. As far as during the time which I was
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assistant principal yes, and during the time I was an acting principal, yes, and a principal.” (Id. at
10:2-7). When Ms. Bivins was an assistant principal, she said that she had to assist Plaintiff a lot
and spend a lot of time supporting her. (Id. at 28:25-29:5). Further, Ms. Bivins testified that she
was an acting principal the year prior to her becoming the principal at Faison, presumably during
the year 2009-2010, because toward the end of that year, the principal went out on leave. (Id. at
8:15-18). When she was acting principal, she testified that part of her duties was to oversee
Plaintiff. (Id. at 10:1-7). However, Ms. Bivins later testified that during the 2009-2010 school
year, she had no involvement at Faison. (Id. at 48:24-49:5). The Court recognizes the above
discrepancies in the record; yet, at the summary judgment stage, all inferences must be drawn in
the light most favorable to Plaintiff. Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Contrary to Defendant’s arguments, this Court finds that Ms. Bivins played a role in
Plaintiff’s supervision and was privy to the relevant information from the first unsatisfactory
rating. Plaintiff’s EEOC Employment Questionnaire dated, dated March 31, 2011, indicates:
Q: What happened to you that you believe was discriminatory?
A: 10-7-2010 unfair evaluation of ability to teach black students because I am
white.
Q: Name and title of person responsible:
A: Leah Bivins, Principal, Pittsburgh Faison Primary
(Docket No. 30-4 at 3). Ms. Hoover testified that the first unsatisfactory rating was given by Ms.
Smith, (Docket No. 25-15 at 11:14), and that when Ms. Bivins came in, she wanted it to be
continued the following year. (Id. at 12:12-14). Ms. Hoover also testified that Ms. Smith, the
principal for the 2009-2010 school year, talked about the first unsatisfactory rating and reviewed
“everything.” (Id. at 12:13-21). She continued, “[Ms. Smith] went to her supervisors and
reviewed everything with them, and agreed that it should be [an unsatisfactory rating.]” (Id. at
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12:21-23). The record further reveals that during the 2010-2011 school year, Plaintiff met with
Bivins, Hoover, and other administrators to discuss her need for “substantial improvement”
based on her unsatisfactory rating from the 2009-2010 school year. (Docket No. 25-2 at 161).
The Unsatisfactory rating packet for the 2010-2011 school year contains an “Overview” of
Plaintiff’s history. (Id. at 25-2 at 74-76). The second line of same states, “During the 2009-2010
school year, Ms. Hendricks was placed on an Employee Improvement Plan. Due to poor
performance that year, Ms. Hendricks received an Unsatisfactory rating.” (Id. at 76).
The Court’s analysis is also supported by Plaintiff’s testimony and notes. As to the latter,
the Court points out that Plaintiff’s notes were filed on the Docket by Defendant. (Docket No.
25-2). Similarly, other courts have considered such personal notes in this context at summary
judgment proceedings. See, e.g. Gov't Dev. Bank for Puerto Rico v. Holt Marine Terminal, Inc.,
765 F. Supp. 2d 710, 716 (E.D. Pa. 2011) (relying on journal entries in opinion on motions for
summary judgment in an ERISA case); Bolden v. Magee Women's Hosp. of Univ. of Pittsburgh
Med. Ctr., 2007 WL 1228479, at *9 (W.D. Pa. Apr. 24, 2007) aff'd, 281 F. App'x 88 (3d Cir.
2008) (considering Plaintiff’s notes in an employment discrimination claim in ruling on
summary judgment motions); Arasteh v. MBNA Am. Bank, N.A., 146 F. Supp. 2d 476, 495 (D.
Del. 2001) (considering Plaintiff’s diary entries at the summary judgment stage in an
employment discrimination case); Engelhard Corp. v. M.C. Canfield Sons, 1989 WL 418547, at
*1 (D.N.J. Oct. 19, 1989) (noting that deposition testimony was corroborated by diary and
workbook entries in ruling on summary judgment motions); Fraser v. Goodale, 342 F.3d 1032,
1037 (9th Cir. 2003) (holding that the contents of employee’s diary may be considered at the
summary judgment stage in an employment discrimination case).

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Plaintiff believed that, from the very beginning, Ms. Bivins made up her mind about
placing her on the second EIP, which would result in a second unsatisfactory rating and,
accordingly, cause Plaintiff to be terminated. (Docket No. 30-1 at 35:22-24) (Bivins’ Deposition)
(“Those who were on EIP and got a second unsat[isfactory rating] lost their position.”).
Plaintiff’s notes from March 16, 2011 reveal that she thought it was “fishy” that Ms. Bivins
became involved in evaluations. (Docket No. 25-2 at 180). She testified that Ms. Bivins observed
her math lesson, and said that it was “really good.” (Docket No. 25-1 at 89:19-20). However, Ms.
Bivins then spent three hours dissecting the lesson and found “all these problems with it.” (Id. at
89:20-22).
Ms. Bivins testified that, in making the determination to give Plaintiff the second
unsatisfactory rating, she considered the informal and formal observations she made along with
Ms. Hoover and Dealyn Allen (“Ms. Allen”). (Docket No. 25-6 at 13:10-12). Ms. Bivins also
considered the support Plaintiff received from Amy Boyd, the curriculum coach, and Mary
Young, the instructional teacher leader, in making said decision. (Id. at 13:10-19).
Yet, the record contains positive evidence of Plaintiff’s ability to teach African American
students. For example, her notes reveal that an African American grandmother complimented her
work with her grandson noting that, “She knows that I worked hard with and for Shemar for 2
years. These people don’t listen to you and Shemar needs somebody to listen and help him so he
doesn’t go to prison like so many AA [African American] males.” (Docket No. 25-2 at 197). The
school’s reading teacher also complimented her abilities, and said that Plaintiff was “the best in
the building.” (Docket No. 25-1 at 43:18-22). Plaintiff testified that most of the students she
taught went up to the next level. (Id. at 43:17-18). Despite all of this, Plaintiff still received an

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unsatisfactory rating. As this Court noted it its earlier Memorandum Opinion, Ms. Bivins made
that recommendation to the Superintendent. (Docket No. 25-6 at 11:4-7).
Turning to the alleged “hood” comments, Defendant argues that these statements by Ms.
Bivens are “stray remarks” and those alone cannot establish pretext. (Docket No. 44 at 2).
However, this Court’s Memorandum Opinion based its holding as to pretext on several other
factors, including the observations, the comparator teachers, and Ms. Bivens’ involvement in the
observations and her ultimate recommendation for an unsatisfactory rating. (Docket No. 34 at
10-11). Viewing the record in the light most favorable to Plaintiff, there are repeated instances
wherein Plaintiff testifies and records, at or around the time of discrete events, these statements
that were made. Scott v. Harris, 550 U.S. 372, 378 (2007) (In considering evidentiary materials,
“courts are required to view the facts and draw reasonable inferences in the light most favorable
to the party opposing the summary judgment motion.”) (internal quotation marks and alterations
omitted); (Docket No. 25-2 at 166-68); (Docket No. 25-1 at 31:25-32:5; 34:20-35:2). Ms. Bivins
denied referring to Faison as the “hood” but acknowledged that she potentially used that word in
a different context. (Docket No. 30-1 at 23:1-6). As the Court noted in its Memorandum
Opinion, credibility determinations, weighing of evidence, and drawing of legitimate inferences
from the facts are jury functions. (Docket No. 34 at 7) (citing Anderson, 477 U.S. at 248); see
also Bhaya v. Westinghouse Elec. Corp., 832 F.2d 258, 262 (3d Cir. 1987) (“Evaluation of
witness credibility is the exclusive function of the jury, and where the only evidence of intent is
oral testimony, a jury could always choose to discredit it.”); Tayoun v. City of Pittston, 2014 WL
3943739, at *10 (M.D. Pa. Aug. 12, 2014) (same). Here, there is conflicting deposition testimony
by Plaintiff, Ms. Bivins, and several others on material issues. The weighing of said testimony
shall be resolved by a jury, not the Court at the summary judgment stage. Bhaya, at 262.
8

The record also contains evidence of Bivins’ alleged racially offensive comments, their
effect on Plaintiff, and the subsequent events. Plaintiff’s notes state, “She ‘Ms. Bivins’ said it
was a natural tendency for blacks especially to keep a tight rein on their children when company
comes. She could not comment on white homes since she was not raised on one. She stated that
in her home you better do what mom says and then stated “sisters” know what I mean.” (Docket
No. 2-2 at 164). Plaintiff testified that Ms. Bivins told her to look in the mirror, that she needed
core authority, and that some people aren’t made for the hood. (Docket No. 25-1 at 31:25-32:5).
She then went to Ms. Hoover’s office and said “I know I’m going to get an unsat[isfactory
rating]. I need out of here. I need a transfer.” (Id. at 32:19-22). She testified that Ms. Hoover
said, “Mrs. Hendricks, I told you you should have gotten out of here last year. I told you you
should have transferred last year.” (Id. at 32:23-33:1). According to Plaintiff, on or about March
30, 2011, Ms. Bivins told her that the only reason they had the first unsatisfactory was to find out
how to correct their problems for the second one.” (Id. at 157:3-5; 15719-25). Further, Ms.
Bivins told her she was going to get the second unsatisfactory. (Id. at 159:9-11).
Plaintiff’s experiences at Faison as a whole and her relationship with Ms. Bivins are
likewise documented in the record. Plaintiff testified that the 2010-2011 year at Faison was “like
hell” and that it took everything she had to come into the building. (Docket No. 25-1 at 23:1015). She added:
I mean, it was horrible. It was horrendous. My husband doesn’t
even realize how bad it was coming in there every day and just —
not even being talked to and being treated like — like you’re not
even a human being. I mean, she [Ms. Bivins] just — you know,
nobody wanted to be around me when she was around. I mean —
and then she would ask people, “Why are you talking to her? Why
do you do things with her? You know, like, there was —it was just
— it was just a horrendous environment”
9

(Id. at 161:4-16). In October 2010, Plaintiff was in a meeting with Ms. Flurry, the principal, the
union liaison, and Ms. Bivins when Ms. Bivins made statements implying that she was not a
good teacher. (Docket No. 25-1 at 98:2-99:3). Plaintiff testified that she received a phone call
that October from another teacher, Ms. Davis, who said, “I heard that Ms. Bivins called you a
bad teacher.” (Id. at 99:4-12). She continued, “You’ll be out of here by December.” (Id. at 99:1718). Around March 2011, Plaintiff testified that Ms. Bivins told her she would have to resign.
(Docket No. 25-1 at 162:13-14). Plaintiff knew from “day one” that she would get an
unsatisfactory rating. (Id. at 43:3-5).
As noted, she testified that it was horrible going to the school and like hell every day. (Id.
at 42:9-1). She later described the year as “crazy” and testified that it never got any better. (Id. at
81:4-5). Because of her negative experiences at the school, Plaintiff took notes throughout the
2010-2011 school year and retained them. (Docket No. 25-1 at 40:24-41:4).
During this year, Plaintiff’s issues at work manifested into physical illnesses. At the
beginning of November, she had an anxiety attack. (Id. at 42:19-21). As a result, she received
treatment from physicians who determined that her anxiety was work-related. (Id. at 145:7-13).
Additionally, she testified that she had headaches every night causing her to vomit. (Id. at 78:1014).
The record also contains evidence that, after Plaintiff complained of the racially offensive
comments to her superior, Ms. Hoover, Ms. Bivins responded with a threat of termination.
(Docket No. 25-1 at 50). Plaintiff noted that she had a discussion with Ms. Bivins on a Friday,
when Bivins called her down to her office and:
. . . basically, she told me that, how dare I go to Ms. Hoover with
this information, did I think Ms. Hoover was her boss, and she
said, “I said some people don’t belong in the hood, I wasn’t just
10

directing it to you,” you know, “there were other people in the
room, and if you want to make an issue of this,” she said, “I’ll
make it an issue, I’ll make this personal.” And she said, “You’ll be
out by December,” and she was screaming at me.”
(Docket No. 25-1 at 50:15-24). In addition to verbal comments and threats, Ms. Bivins also
exhibited negative physical reactions to Plaintiff in front of other teachers. For example, Plaintiff
testified that she rolled her eyes on November 17, 2010. (Docket No. 25-1 at 110:6-23).
Although the other teachers and supervisors may not recall the “hood” comment or other
allegedly discriminatory acts by Ms. Bivins, this Court will not reconsider its denial of summary
judgment based on such lack of recollection, as it creates a jury question. See, e.g. United States
v. Henry-Nesbitt, 2011 WL 4565913, at *4 (D.V.I. Sept. 29, 2011) (denying summary judgment
where Defendant’s lack of recollection created a question of fact “not amenable to determination
by summary judgment”); Shaup v. Frederickson, 1998 WL 726650, at *4 (E.D. Pa. Oct. 16,
1998) (denying summary judgment where Plaintiff’s lack of recollection and other evidence
created an evidentiary conflict to be decided by a jury at trial); Gould Inc. v. A&M Battery &
Tire Serv., 1996 WL 362594, at *2 (M.D. Pa. Apr. 17, 1996) (denying summary judgment and
finding that a material element of fact exists when testimony establishes lack of recollection).
Defendant next argues that the Third Circuit’s holding in Keller v. Orix requires this
Court to reconsider its ruling as Ms. Bivins’ alleged comments are stray remarks. 130 F.3d 1101
(3d Cir. 1997). This Court disagrees. Relative to the alleged discriminatory comments:
To determine whether a statement can “constitute overt evidence
sufficient to show ... a discriminatory animus towards older
employees” the Third Circuit considers whether the speaker was a
decisionmaker, the content of the statement and whether the
statement was related to the decisional process. Armbruster v.
Unisys Corp., 32 F.3d 768, 779 (3d Cir. 1994); see also Price
Waterhouse,
490
U.S.
at
277
(“[S]tatements
by
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nondecisionmakers, or statements by decisionmakers unrelated to
the decisional process itself” do not show discriminatory intent)
Kargbo v. Philadelphia Corp. for Aging, 2014 WL 1632193 (E.D. Pa. Apr. 22, 2014). In order to
constitute racial harassment, the subject comments or behavior need not be overtly racial in
nature. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996) (observing that
“there are no talismanic expressions which must be invoked as a condition-precedent to the
application of laws designed to protect against [racial] discrimination” and harassment). In this
Court’s estimation, Ms. Bivins was the decisionmaker. Additionally, the statements and other
actions that occurred while she was Plaintiff’s superior were related to the decision-making
process, as Bivins’ alleged comments and actions went directly to Plaintiff’s ability to teach
African American students as a Caucasian.
Finally, with regard to the remaining issues of fact to be decided by a jury, the Court
notes:
Although we must also be vigilant to minimize the impact of
groundless claims of bias on employers who have acted in good
faith, summary judgment must not become a procedural expedient
for resolving claims that raise a genuine issue of fact even though
courts may be skeptical of the merits of the plaintiff's underlying
claim.
Williams v. URS Corp., 124 F. App'x 97, 101 (3d Cir. 2005). The Court has considered all
evidence of record, including Plaintiff’s testimony and notes, which were made at or around the
time of the significant occurrences in this case, and finds that Defendant has not met its burden
with respect to reconsideration of the race discrimination claim.
2. Alleged Error of Law as to Comparators
The Court likewise finds that Defendant has not met its burden with respect to
reconsideration as to the comparator issue. Defendant’s reliance on Vogel v. Pittsburgh Public
12

School District is misplaced. 2014 WL 4187151 (W.D.Pa. Aug. 21, 2014). First, In Vogel, Chief
Judge Conti found that “. . . the record is devoid of any direct evidence of age-related animus or
even stray age-related comments on the part of the relevant administrators.” Vogel, 2014 WL
4187151, at *18. As the Court has discussed in its Memorandum Opinion, (Docket No. 34), and
above, this is not the case here.
Next, the plaintiff in Vogel challenged the rating process at the school in question in
arguing that he was discriminated against based on age, and Defendant countered with statistical
evidence concerning the composition of the school’s teachers. Id. at *19. Here, Defendant argues
that fourteen of the twenty-six teachers were African American and the remaining twelve were
Caucasian, (Docket No. 24 at ¶¶ 135-36), while Plaintiff specifically denied same in her
responsive Concise Statement of Material Facts and testified to the contrary. (Docket No. 33 at
¶¶ 135-37). Specifically, Plaintiff testified that the majority of the curriculum teachers at Faison
were African American and that she was a minority in the school. (Docket No. 25-1 at 163:1720; 166:6-7). Plaintiff also argues that the majority, if not all, of Plaintiff’s fellow teachers were
African American and not terminated. (Docket No. 39 at 4). Additionally, Plaintiff testified that
during the 2009-2010 school year, Ms. Harper, an African American, was also on an EIP.
(Docket No. 25-1 at 72:12-18). She testified that Ms. Harper got an unsatisfactory rating and
taught at summer school, which is ordinarily not permitted. (Id. at 82:10-14). Plaintiff’s notes
also state that Ms. Harper told her that:
another white female is under constant reprimand by Ms. Bivins. I
talked to this teacher briefly and she stated that she has had trouble
sleeping as I have and it has been difficult. She states that she can
do nothing right. I know exactly what she means, I experience this
daily, yet other teachers in this building are having discipline
problems, and they are treated much differently. They are treated
with more respect and dignity, than I have experienced.
13

(Docket No. 25-2 at 197). Similarly, in Plaintiff’s answer to Defendant’s Interrogatory Number
18, she pointed out:
Ms. Bethea told the students after lunch that at the end of the day
they would be getting a treat if they were well behaved. Plaintiff
mentioned this to the students during her math lesson, which Ms.
Bivins was observing. Ms. Bivins stated to Plaintiff that food was
not to be used to “motivate positive behavior.” All of the teachers
in the first grade Pod used “edible incentives” in their classroom.
Ms. Bethea used a chart to award “table points” in her room.
Plaintiff used this method during an observation and was written
up because the process was too lengthy. This was a daily practice
in Ms. Bethea’s room.
(Docket No. 25-16 at 2).
Here, while statistical evidence was placed in the record, there is also conflicting
testimony regarding the racial composition of the school at the time and about the treatment of
other Caucasian teachers by Ms. Bivins. Again, such credibility determinations are in the
province of the jury. Anderson, 477 U.S. at 248. Moreover, all evidence must be viewed in the
light most favorable to Plaintiff. Marino, 358 F.3d at 247. In sum, Defendant has not set forth a
manifest error of law or fact or presented newly discovered evidence as to the comparator issue.
Thus, the Motion is denied as to this argument, as well.
III. CONCLUSION
Defendant’s Motion is GRANTED, in part, and DENIED, in part. The Motion is
GRANTED, to the extent that the Court’s Memorandum Opinion, (Docket No. 34), is
AMENDED, only to correct the Court’s error in finding that Leah Rae Bivins (“Ms. Bivins”)
was the Vice Principal of Faison during the 2009-2010 school year. The third sentence in the
first paragraph of Section II.A., id., now shall state: “For the 2009-2010 school year, JoAnn

14

Hoover (“Ms. Hoover”) was the Vice Principal and Yvonna K. Smith (“Ms. Smith”) was the
Principal.” The Motion is DENIED in all other respects.
IT IS FINALLY ORDERED that a Status Conference is hereby scheduled for February
17, 2015 at 9:00 a.m. to set a trial date and establish deadlines for the Court’s Pretrial Order.

s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
cc/ecf: All counsel of record

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