Leighton v. Madison Central School District #39-2

Filing 56

Opinion and ORDER granting in part and denying in part 29 Motion for Summary Judgment; granting 36 Motion for Partial Summary Judgment. Signed by U.S. District Judge Roberto A. Lange on 9/28/18. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

DEBRA LEIGHTON,

4:16-CV-04079-RAL

Plaintiff,
OPINION AND ORDER GRANTING IN
vs.

MADISON CENTRAL SCHOOL DISTRICT

PART AND DENYING IN PART
DEFENDANT'S MOTIONS FOR
SUMMARY JUDGMENT

#39-2,
Defendant.

Plaintiff Debra Leighton sued her employer Madison Central School District (MCSD)
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Doc. 1. She asserted

claims for disparate treatment because of sex, discriminatory failure to hire, and retaliation. Doc.
1. She also sought compensatory and punitive damages. Doc. 1. MCSD moved for summary

judgment on all claims. Doc. 29, or, in the alternative, summaryjudgment on Leighton's claim for
punitive damages. Doc. 36. This Court grants MCSD summary judgment on the disparate
treatment and retaliation claims because Leighton did not engage in protected conduct and the

disparate treatment claim is merely a repackaged retaliation claim. Summary judgment is also
appropriate on the punitive damages claim because Title VII does not allow plaintiffs to recover

punitive damages from a school district like MCSD. This Court denies MCSD s motion for
summary judgment on the failure-to-hire claim, however, because there is a material question of
fact concerning whether gender played a role in MCSD's hiring decision.

I.

Facts

Leighton began working for MCSD in 2012, when she was hired as a part-time teacher at
the Graeevale Hutterite Colony (Gracevale). Doc. 34 at T| 3; Doc. 41 at 1|3; Doc. 32 at ^3.

Gracevale, which is located within MCSD's boundaries, had a lengthy partnership with MCSD
under which MCSD operated a rural school near Graeevale to provide K-8 schooling for Gracevale
children. Doc. 34 at ^ 11; Doc. 41 at ^ 11; Doc. 40 at If 17; Doc. 49 at If 1. Vince Schaefer,

MCSD's superintendent, delegated most ofthe responsibility for leadership and staff supervision
at the Gracevale school to Cotton Koch, the middle school principal for MCSD. Doc. 40 at 118;
Doc. 49attl.

MCSD hired Leighton as one of two full-time teachers at the Graeevale school for the

2013-2014 school year. Doe.34 at If 5; Doc.41 at^S. When Koch informed Leighton ofMCSD's

decision, she was extremely happy and expressed her emotions by hugging him. Doe. 34 at 19;

Doc.41 at^ 9. Leighton was to teach grades K-3 while Amy Andersen,the other full-time teacher
at the Gracevale school, would teach grades 4-8. Doe. 34 at ^ 10; Doc. 41 at ^ 10; Doc. 40 at
tTf21,23;Doc. 49 at If 1-

Problems developed at the Gracevale school in early 2014. Doe. 34 at If 12; Doc. 41 at

]f 12. Gracevale was satisfied with Leighton,but had complaints about Andersen's teaching. Doc.
40 at t124, 28; Doc. 49 at ^ K Doc. 32 at 15. One Gracevale representative even asked that
Andersen be fired. Doc. 40 at If 27; Doc. 49 at If 2. MCSD also learned that Gracevale was

dividing and that approximately halfofthe Graeevale students would be moving to a colony in the
Rutland school district for the upcoming 2014-2015 school year. Doc.40 at ^f 20; Doc.49 at 11-

On or about February 5, 2014/ Koch held a meeting with Leighton and Andersen to

address problems at the Gracevale school and to encourage Leighton and Andersen to get along
better, support each other, and follow the chain of command. Doc. 34 at

13-14; Doc. 41 at

13—14. During the meeting, Koch referred to Leighton as a "princess because of how
Gracevale thought she could do no wrong. Doc. 34 at 17; Doc. 41 at^ 17; Doc.40 at Tf 29; Doc.

50 at 12; Doc. 43-1 at 3. Koch also told Andersen that he would continue to support her, which
prompted Andersen to kiss Koch's hand and declare that he was "the best boss ever." Doc.40 at
30; Doc. 49 at 11;Doc. 34 at^ 15; Doc. 41 at ^ 15..The kissing incident lasted no more than a
few seconds and was not initiated by Koch. Doc. 34 at 116; Doc. 41 at Tf 16.

On February 10,2014,Koch gave Leighton a written evaluation ofa class he saw her teach.

Doc.40 at ^ 32; Doc. 49 at 1. The evaluation was.positive, with Koch telling Leighton "[g]reat

job" and thanking her "for all the work you do for our students." Doc. 40 at 132; Doc. 49 at ]f 1;
Doc.43-7. On February 20,2014,Leighton met with Koch to discuss her concerns about Andersen
and what had occurred during the February 5,2014 meeting. Doc.40 at^ 34; Doc.49 at12;Doc.

43-3 at 2. Among other things, Leighton told Koch that she had been offended when Koch called

her a princess and when Andersen kissed Koch's hand. Doc. 40 at ^ 34; Doc. 49 at ^ 2. Koch

replied that he did not mean the princess comment in a negative way,that he did not think anything
of the kissing incident, and that Leighton would need to get over it. Doc. 40 at 135; Doc. 49 at

T|2. According to Leighton, she told Koch that she was unsatisfied with his responses and wanted
to take her complaints about Andersen to Schaefer; Koch replied that Leighton was not allowed to

speak to Schaefer about Andersen, and that if he found out that she had, he would terminate her
^Leighton says this meeting occurred on February 5, 2014. Doc. 40 at 129. Koch testified that
the meeting took place in February 2014 but that he could not recall the exact date. Doc. 43-1 at
3; Doc. 50 at 12.

^Koch testified that he didn't remember the February 20 conversation at all. Doc. 43-1 at 4-5.

on the spot. Doc.40 at 136.^ Koch denies threatening to terminate Leighton and saying she could
not speak to Schaefer. Doc. 50 at ^ 3. While Koch contends that he lacks the authority to fire
Leighton, Doe. 50 at T|3, Leighton asserts that she found Koch's alleged threat realistic because
he had the authority to recommend her nonrenewal and because MCSD placed deference on
administrative recommendations, Doc. 40 at^ 37; Doc. 43-1 at 18; Doc. 43-2 at 7.

On March 10, 2014, the MCSD school board approved a reduction in force (RTF)

eliminating five teaching positions for the 2014—2015 school year, including Andersen s and
Leighton's positions at the Gracevale school. Doc. 34 at 26; Doc. 41 at 126; Doc. 40 at ^ 39;
Doc. 43-11; Doc. 31 at ^9; Doc. 31-3 at 4. The collective bargaining agreement between the
MCSD and the Madison Education Association contained a provision regarding a RIF. Doc. 34

at Tl 24; Doc. 41 at 124. Loss of student enrollment is the usual reason for employing the RIF
procedure. Doe. 34 at 125;Doc.41 at125; Doc. 32 at^ 8. The reason given for the March 2014
RIF was that Gracevale was splitting and that the MCSD would thus lose about halfofthe students
it served at the Gracevale school. Doc. 40 at ^ 40; Doc.43-2 at 4; Doc. 31 at^ 8; Doc. 34 at Tf 25,

Doc. 41 at 125. Leighton contends that Koch "had a part in the RIF analysis." Doc. 40 at ^42.
Koch submitted an affidavit saying that he had nothing to do with the RIF,but that he did "provide

^Leighton alleges in her eomplaint and suggests in her briefthat Koch threatened to terminate her
if she complained to Schaefer about the hand-kissing incident and the princess comment. Doc. 1
at

51-53; Doc. 42 at 21. However, Leighton's statement of material facts states that Koch

threatened to terminate her if she took her complaints about Andersen to Schaefer. Doc. 40 at

^36. The letter Leighton cites in support ofthis statement ofmaterial fact describes how Leighton
complained to Koch on February 20,2014, about Andersen's abusive behavior toward her and the
children, how Leighton asked Koch if she could take her concerns about Andersen to Schaefer,
and how Koch threatened to terminate Leighton if she talked about Andersen. Doc. 43-28 at 2-3.

The letter does not say that Leighton asked Koch ifshe could take her complaints about the handkissing incident and the princess commentto Schaefer or that Koch threatened her with termination
if she did so. What was said during any meeting on February 20, 2014, involves disputed facts,

and for purposes ofthis opinion, this Court views the disputed facts in the light most favorable to
Leighton.

information that based on what we knew at the time, only 15 students would be returning to school
at Gracevale." Doc. 50 at 4.

MCSD contends that "within several weeks" of the RTF, it reclassified certain positions

such that MCSD could continue supplying two teachers to Gracevale for the 2014-2015 school

year. Doc. 34 at 28; Doc. 41 at 28. There is some disagreement about when MCSD began
advertising for these positions. According to Leighton, MCSD posted a job for one full-time K—8
teacher at the Gracevale school shortly after the RIF. Doc. 40 at 147. The closing date to apply

for this position was March 28, 2014. Doc. 40 at ^ 47. Leighton sent an undated letter to Koch
and Schaefer saying that she would not be applying for the position because she did not believe
that one teacher could meet the requirements ofthe job description. Doc. 32-1; Doc. 43-16; Doc.

40 at Tf 48. Leighton contends that on April 1, 2014,she saw that MCSD had posted the following
three jobs for the 2014-2015 school year: a full-time Title 1 and ELL teacher at the Gracevale
school; a full-time K-8 teacher at the Gracevale school; and a junior kindergarten teacher at the
MCSD main campus. Doc. 40 at ^49; Doc. 43-18; Doc. 43-17; Doc. 43-32. MCSD claims that

it posted the K-8 position on March 14, 2014, and that the applications for that position were due
by March 28.'^ Doc. 34 at 130; Doc. 32 at 9. MCSD claims that it posted the Title I and ELL

position on April 4, 2014, and that this position closed on April 17, 2014.^ Doc. 34 at ^ 31; Doc.
32 at ^9.

'^MCSD's statement of material facts states that the K-8 position was posted on March 4, 2014.

Doc. 34 at Tf 30. This March 4 date appears to be a typo, as the affidavit MCSD cites in support
states that MCSD posted the position on March 14, 2014. Doc. 32 at ^ 9.
^MCSD's statement of material facts states that the Title 1 and ELL position was posted on April

17, 2014. Doc. 34 at 31. This April 17 date appears to be a typo, as the affidavit MCSD cites in
support states that MCSD posted the position on April 4, 2014, and closed the position on April
17. Doc. 32 at 19.

On April 3, 2014, Leighton met with Koch to inquire about the K-8 and Title 1 positions
at the Graeevale school. Doc. 40 at ^ 54; Doc. 49 at 12; Doc. 43-32 at 1-2. Koch informed

Leighton that he was looking for someone who did not clash with the Graeevale leadership. Doc.
40 at 154; Doc. 49 at ^ 2. On April 14, 2014,-Leighton applied for the two teaching positions at
the Graeevale school and the junior kindergarten position at the MCSD main campus. Doe. 40 at

^55; Doc. 43-20. Koch acknowledged during his deposition that Leighton's application was
sufficient and that he knew she was applying for the three teaching positions as of April 14,2014.^
Doc. 40 at T| 56; Doe. 49 at ^ 2; Doc. 43-1 at 8-9.

Koch selected himself and two teachers he supervised to act as the hiring committee for

the Graeevale positions. Doe. 40 at ^ 60; Doe. 50 at ^ 7; Doe. 43-1 at 9. Koch had the authority
to choose whom to interview and to conduct the interviews with the two other members of the

committee. Doc. 40 at 158; Doc. 50 at 16; Doe. 43-1 at 11,13. Koch's testimony suggests that
he alone chose whom to interview for the Graeevale positions. Doc. 43-1 at 11, 13, hut he

submitted a later affidavit stating that the other two members of the hiring committee could also
determine which candidates to interview. Doe. 50 at ^6. Under the usual hiring process for

MCSD, the hiring committee would recommend a candidate to the superintendent, the

superintendent would send the recommendation to the school board if he approved of the
^MCSD suggests in its opening briefthat Leighton's undated letter shows that she did not want the
K-8 position at the Graeevale school. Doc. 35 at 8; Doe. 34 at 134. MCSD's argument is based
on its belief that it advertised the K-8 position only once, from March 14, 2014 until March 28,

2014. Leighton explains that her undated letter referred to the K-8 position as MCSD initially
advertised it, with only one teacher being allocated to the Graeevale school. Doc. 41 at Tf 33.

Leighton contends that once MCSD advertised for the K-8 and Title 1 positions at the Graeevale
School on April 1, she applied for both positions because she felt that two teachers would be
adequate staffing at the Graeevale school. Regardless of MCSD s assertions about the letter,
Leighton filed an April 14,2014 email she sent to Koch and Sehaefer saying that she was applying
for the junior kindergarten position and the two Graeevale positions, Koch agreed that he knew
Leighton was applying for the positions, and MCSD admitted in its answer that Leighton applied
for all three positions. Doc. 8 at 17.

candidate, and the school board would then make the final hiring decision. Doc. 34 at ^ 38; Doc.
41 att38.

Although Koch had given Leighton a "Meets Standards" rating for the 2013-2014 sehool

year, Doc. 40 at Tf 51; Doc.49 at 12,he decided not to interview Leighton for any ofthe teaching
positions. Doc.40 at^ 61;Doc.50 at If 8; Doc.43-1 at 13. MCSD contends, and Leighton disputes,
that MCSD's first two choices for the K-8 position at Gracevale were women; MCSD avers that

both women accepted other jobs before their employment could be presented to the MCSD school
board. Doc. 34 at Tf^f 40^3; Doc. 41 at

40-43; Doc. 43-1 at 12-14. According to MCSD,the

hiring committee's third choiee for the K-8 position was Tom Nielsen.'' Doc. 34 at If 44; Doc. 41
at If 44. When Koch called Nielsen around April 21,2014, Nielsen said he would aecept the K-8
position ifit were offered to him. Doc. 43-1 at 14; Doc. 32 at ^ 21; Doc.40 at

63-64; Doc. 50

at ^Tf 9,11. The MCSD school board ultimately approved offering a contraet to Nielsen during its
May 2014 meeting and Nielsen accepted the position as a K-8 teacher at the Gracevale school.
Doc. 40 at 163; Doc. 32 at If 21.

As for the Title 1 position at Gracevale, the hiring committee recommended Andersen.

Doc. 34 at 145; Doc. 41 at ^ 45; Doc. 50 at ^ 66; Doc. 43-1 at 19.^ Koch informed Andersen that

'Relying on an email from Schaefer and a letter from Koch, Leighton disputes that the hiring
committee's first two choices for the K-8 position were women. Doc. 41 at ]ff 40-44. Schaefer's

email, sent to MCSD sehool board members on June 12,2014,stated that Koch had recommended
Andersen for a position with Gracevale, but that Schaeffer had ultimately decided not to approve
Andersen's contract. Doc. 43-30. Koch's letter, sent to Schaefer on May 19, 2014, states: "It was

very clear to me that hiring Tom Nielson [sic] and Amy Andersen was the best for the children at
Gracevale. All other eandidates were not ready for the position." Doc. 43-24. Leighton argues

that these documents suggest that Andersen and Nielsen were the hiring eommittee's first and only
choices for the positions at Gracevale. Koch testified that when he sent the May 19, 2014 letter,
Schaefer knew that the first two choices for the K-8 position had aeeepted other job offers. Doc.
43-1 at 14-15.

^Although Leighton asserts that Koch alone recommended Andersen for the Title 1 position, she
has not offered sufficient evidence to create a genuine dispute of fact on this issue. Regardless,

she was being reeommended for a eontraet but asked her to keep this information confidential until
the school board acted upon the recommendation. Doc. 34 at ^ 47; Doc. 41 at ^ 47; Doc. 40 at

Tf 65; Doc. 50 at ^ 12. Emails Ifom Sehaefer in May and June of2014 suggest that Andersen had
accepted a eontraet offer for the Title 1 position, although the MCSD school board had yet to
formally approve the contract. Doe. 43-25; Doe. 43-26; Doc. 43-30; Doe.40 at^^ 66-67; Doc. 50
at TITf 12-14; Doc. 41 at 146; see also Doe. 43-37.

On April 29, 2014, Leighton met with Koch to ask when the interviews for the three

positions for which she had applied would begin. Doc.40 at^ 62; Doc.50 at^ 10. Koch informed
Leighton that the K-8 position was filled and that the Title 1 position had been "tabled." Doe. 40

at ^ 62; Doe. 50 at ^ 10. He did not mention the junior kindergarten position. Doe. 40 at ^ 62;
Doe. 50 at T| 10. On May 16, 2014, Andersen informed Leighton that she had been offered the
Title 1 position three-and-a-half-weeks earlier. Doe.40 at^65;Doe. 50 at Tf 12. Koch sent a letter
to Sehaefer on May 19, 2014, explaining that in addition to having Nielsen and Andersen teach at
Graeevale, MCSD had secured a full-year student teacher for the Graeevale school for the 20142015 school year.^ Doe. 40 at 68; Doe. 50 at ^ 15; Doe. 43-24. Koch explained that this would
make the ratio "three teachers to 15 students. It will also provide two male teachers. This is a first

for the Graeevale Colony!" Doc. 40 at 168; Doe. 50 at Tf 15; Doe. 43-24. Just a few days later,
however, MCSD learned that Graeevale was considering using the open-enrollment option to join
the neighboring school district in Chester, South Dakota. Doc.43-26; Doe.43-31; Doe.40 at^ 70.
On May 23, 2014, Sehaefer sent an email to the MCSD school board discussing the split in the
Graeevale colony and the open-enrollment possibility:

the question of whether Koch or the hiring committee reeommended Andersen is not material to
this Court's decision.

^The student teacher came from Dakota State University and thus did not impose any additional
cost on Graeevale or MCSD. Doe. 50 at ^ 15.
8

With the division of the colony and new leadership who want to

make things happen this has become a difficult issue. We are
frustrated with how to approach and who to work with. At this time
we understand that at a level higher than the local colony a decision
was made to pursue open enrollment to Chester with the primary

reason being they refuse to accept Amy Andersen as their teacher.
We have hired Tom Nielsen and Amy Andersen to be the teachers

along with and [sic] yearlong male student teacher for 16 students
starting this fall.

Doc. 43-26; Doc. 40 at ^ 70. Koch sent an email to Schaefer about Gracevale on May 26, 2014,
stating:

I have been thinking (worrying) all weekend about this issue. A

couple of things that came to me 1. If we go to the colony and tell
them Andersen will be moved to town the trap we will walk into will

be hiring Debbie Leighton. I think they will try to play that card. I
will support whatever you decide on both teachers.

Doc. 43-27; Doc. 40 at ^ 73; Doe. 49 at 12.^°

On May 28,2014, Leighton and her husband Brian met with Koch and Schaefer to discuss

Leighton's concerns about why she wasn't interviewed for the teaching positions for which she
had applied. Doc. 40 at ^ 74; Doc. 49 at ^ 2. Leighton suggested that she did not receive an
interview because she had complained about Koch calling her a princess and Andersen kissing

Koch's hand. Doc. 40 at ^ 74; Doc. 49 at ^ 2. Koch explained Nielsen's hiring by saying that
Gracevale had wanted a "male figure" at the school and someone with more math experience.
Doc. 40 at 174; Doc. 49 at If 2.

On June 12, 2014, Schaefer sent an email to MCSD school board president Tom Farrell

explaining that he had decided not to approve Andersen's contract for the Title 1 position at
Gracevale. Doc.40 at 176; Doc.49 at^ 2; Doc.43-30; Doc. 34 at 149; Doc. 41 at 149. Schaefer

^°Koch testified that he could not recall what the "trap" he referred to was. Doc. 40 atf 73; Doc.
43-1 at 16.

wrote that "[hjaving 'taken back' the contract offered to Amy after a closed discussion with her
effectively removes her from that school setting." Doc. 40 at ]f 76; Doc. 49 at ^ 2; Doc. 43-30.
On July 9, 2014, Leighton signed a eontract with the Chester school district to teach at the

Gracevale school. Doc. 30-2 at 3, 7; Doc. 34 at

50-51; Doc. 41 at

50-51.'^ Her annual

salary under the contract would be $37,250.00.^^ Doc. 34 at ^ 51; Doc. 41 at ]f 51. On July 14,
2014, Leighton appeared before the MCSD school board to voice her complaints about Koch,
Andersen, and not having received an interview. Doc.40 at ]f 78; Doc.49 at ^ 2; Doc.43-32. She
also submitted written questions to the school board, one of which stated:"We would like to know
the views of the board upon a female applicant being told that he wanted a male in that position.
Mr. Koch told us that he hired Mr. Nielsen because he needed a male presence at the colony."
Doc. 40 at ^ 78; Doc. 49 atf 2; Doc. 43-33.

By mid-July, MCSD had accepted that Gracevale was going to open enroll its students in
the Chester school district. Doc. 40 at ]f 82; Doc.49 at ]f 2. Because MCSD already had a binding
contract with Nielsen, it reassigned him to an open middle sehool position. Doc. 40 at Tf 82; Doc.
49 at II2.

^'MCSD's statement of material facts says that Leighton had applied for a teaching position with
Rutland school district back on April 12,2014, and that she signed a contract with Rutland on May
5, 2014. Doc. 34 at 35-36; Doc. 41 at 35-36. Around the same time Leighton accepted a
job with the Chester school district, however, she paid the Rutland district a fee to break her
contract with it. Doc. 30-2 at 1,3, 9. MCSD does not argue that Leighton's application or contract
with Rutland was the reason MCSD didn't hire her for the positions at Gracevale.

^^MCSD includes multiple statements ofmaterial fact attempting to show that Leighton made more
money with the Chester school district and did not suffer any monetary damages because of not
being hired by MCSD for the 2014-15 school year. See Doc. 34 at 55-62. Leighton agrees
with some ofthese facts but disputes others. See Doc.41 at 55-62. MCSD may offer this evidence
about Leighton's salary and the loss ofbenefits at trial, but it is not a ground for granting MCSD's
motion for summaryjudgment. After all, Leighton is seeking damages beyond front pay and lost
benefits. See Doc. 1. Moreover, even if Leighton recovered only nominal damages, she could
still be entitled to attomey's fees. Parton v. GTE N.. Inc.. 971 F.2d 150, 155-56(8th Cir. 1992).
10

On August 4,2014,the MCSD school board held an executive session with Koch to discuss

Leighton's complaints. Doc. 40 at ^ 84; Doe. 43-35; Doc. 43-2 at 10. The following day, Farrell
sent a letter to Leighton notifying her ofthe executive session and explaining that while the board
could not answer her questions concerning personnel because such information was confidential

by law, the board "did have in depth discussion and changes will be implemented to protect the
applicant as well as the district in the future." Doc. 43-35; Doc. 40 at ^ 85. Farrell concluded by
saying that the school board believed it had given adequate attention to Leighton's concerns and

that the board would not review the matter any further. Doe. 40 at ^ 85; Doc. 43-35.
On August 6, 2014, Koch called one of Leighton's former employers for a reference.

Doc.40 at]! 86; Doc.50 at^ 18; Doc.43-1 at 17; Doc.43-36. He documented a negative reference
and completed a MCSD reference form for Leighton, marking "Does NOT meet the standards of
the Madison Central School District." Doc. 40 at Tf 86; Doc. 50 at ^ 18; Doc. 43-1 at 17; Doc. 43-

36. Koch testified that he conducted the reference check because he felt attacked by Leighton and

needed to know "did I do the right thing, did I make the right choice." Doc. 40. at 87; Doc. 50 at
If 18; Doc. 43-1 at 17.

Leighton filed a discrimination charge with the EEOC in November 2014, alleging that
MCSD had discriminated against her based on her gender and retaliated against her for engaging

in protected activity. Doc. 1 at ^ 7; Doc. 8 at Tf 7. MCSD's response to the charge stated that
"Koch may have told Ms. Leighton that Graeevale had been asking for a male teacher, because
that was the fact." Doc. 43-39 at 1; Doc. 40 at ^f 91. Thereafter, Graeevale's president and its
school administrator submitted the following letter to the EEOC:

In regards to Mr. Koch's claim in section II.9 [of MCSD's EEOC
response] that Graeevale Colony had been asking for a male teaeher
this statement is not true. We the Colony have been asked by Mr.
Koch if we had any issues with him hiring a male teaeher, our

11

response was there would be no problem. We at no time asked for
a male teacher.

Doc. 43-38; Doc. 40 at ^ 91.

Leigbton sued MCSD under Title VII in this Court, asserting claims for "disparate
treatment because of sex"(Count I), discriminatory failure to hire (Count II), and retaliation for

opposing discrimination (Count III). Doc. I. She sought compensatory and punitive damages
against MCSD as well as attorney's fees. Doc. 1. MCSD moved for summaryjudgment on all of
Leigbton's claims. Doc.29,or,in the alternative,for summaryjudgment on her requestfor punitive
damages. Doc. 36.
II.

Standard of Review

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper
when "the movant shows that 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). On summary judgment, the
evidence is "viewed in the light most favorable to the nonmoving party." True v. Nebraska, 612

F.3d 676,679 (8th Cir. 2010)(quoting Cordrv v. Vanderbilt Mortg. & Fin.. Inc., 445 F.3d 1106,

1109(8th Cir. 2006)). There is a genuine issue ofmaterial fact if a "reasonable jury[could] return
a verdict for either party" ori a particular issue. Maver v. Countrvwide Home Loans. 647 F.3d
789, 791 (8th Cir. 2011). A party opposing a properly made and supported motion for summary

judgment must cite to particular materials in the record supporting the assertion that a fact is
genuinely disputed. Fed. R. Civ. P. 56(c)(1); Gacek v. Owens & Minor Distrib.. Inc.. 666 F.3d
1142, 1145 (8th Cir. 2012). "Mere allegations, unsupported by specific facts or evidence beyond
the nonmoving party's own conclusions, are insufficient to withstand a motion for summary
judgment." Thomas v. Corwin. 483 F.3d 516, 527 (8th Cir. 2007); see also Reasonover v. St.
Louis Ctv.. 447 F.3d 569, 578 (8th Cir. 2006) ("Evidence, not contentions, avoids summary
12

judgment.")(quoting Mayer v. Nextel W. Corp., 318 F.3d 803, 809 (8th Cir. 2003)). Summary
judgment is not "a disfavored proeedural shortcut, but rather ... an integral part of the Federal
Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of

every action.'" Celotex Corp. v. Catrett. 477 U.S. 317, 327 (1986)(quoting Fed. R. Civ. P. 1).
Cases alleging discrimination are subject to the same summary judgment standard as any other
ease. Torgerson v. City of Rochester. 643 F.3d 1031, 1043 (8th Cir. 2011)(en bane).
III.

Discussion

A.

Count I

Leighton's theory under Count I of her complaint is somewhat confusing; although Count
I is labeled "Disparate Treatment Because of Sex" and cites to 42 U.S.C. § 2000e-2(a)(l)-(2), the
allegations in Count I overlap with those in Count III, Leighton's retaliation claim under 42 U.S.C.
§ 2000e-3(a). Discrimination and retaliation are distinct wrongs under Title VII. 42 U.S.C.

§§ 2000e-2(a), -3(a). Section 2000e-2(a), Title VII's main antidiscrimination provision, makes it
unlawful to discriminate against an employee based on that employee's "race, color, religion, sex,
or national origin." Id,§ 2000e-2(a). To establish a prima facie case of disparate treatment based
on sex under § 2000e-2(a), a plaintiff generally must show that:(1)'she is a member of a protected
class; (2) she was qualified to perform her job;(3) she suffered an adverse employment action;
and (4) she was treated differently than similarly situated males. Tenge v. Phillips Modem Ag
Co.. 446 F.3d 903, 910 (8th Cir. 2006). A plaintiff can also meet this fourth element of a prima
facie ease by producing "some other evidence that would give rise to an inference of unlawful

discrimination." Turner v. Gonzales. 421 F.3d 688,694(8th Cir. 2005)(quoting Putman v. Unity
Health Svs.. 348 F.3d 732, 736 (8th Cir. 2003)). A separate section of Title YII, 42 U.S.C.
§ 2000e-3(a), forbids retaliation against an employee "because he has opposed any practice made

13

an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a). A prima facie case of

retaliation under § 2000e-3(a) requires a showing that; (1) the plaintiff engaged in protected
activity; (2) the plaintiff suffered a materially adverse employment action; and (3) the adverse
employment action was causally linked to the protected activity. Pve v. Nu Aire, Inc., 641 F.3d
1011,1021 (8th Cir. 2011). The difference between a discrimination claim and a retaliation claim
under Title VII is important; while a plaintiff alleging discrimination can succeed by showing that
a protected characteristic was a "motivating factor" for the employer's decision, a plaintiff alleging
retaliation has the higher burden of showing that unlawful retaliation was the "but-for cause" of
the adverse action. Univ. of Tex. Sw. Med. Ctr. v. Nassar. 570 U.S. 338, 349, 352(2013).
Here, Count I of Leighton's complaint reads like a retaliation claim. Although one

paragraph of Count I alleges that MCSD treated men and women differently because Koch used

"gender-stereotyped language" and "encourag[ed] physical contact" with female employees,'^
Doc. 1 at ^ 38, other paragraphs of Count I allege that MCSD terminated Leighton through the
RIF because she complained about Koch's behavior. Doc. 1 at

39—42. Specifically, Leighton

alleges in Count I that her termination via the RIF was an adverse emplojmient action. Doc. 1 at
]f 39, and that MCSD was "motivated by an improper motive to eliminate Leighton as a[MCSD]

employee because ofher complaint to Koch," Doc. 1 at][ 42. Thus, while Leighton refers to Count
I as a "disparate treatment" claim and gives a few examples of being treated differently than male
employees, she alleges that the adverse employment action was because of her complaints rather
than her gender. Leighton's briefonly mentions Count I twice, stating that her failure-to-hire claim

'^These allegations are based on Koch calling Leighton a "princess" and Andersen kissing Koch's
hand. It is undisputed that Leighton hugged Koch herself when she was hired full time for the
2013-2014 school year. Doc. 34 at ]f 9; Doc. 41 at ^ 9, that Koch did not initiate Andersen kissing
his hand. Doc. 34 at ^ 16; Doc. 41 at 116, and that Koch referred to Leighton as a "princess" on
one occasion only to describe how Gracevale thought she could do no wrong. Doc. 34 at
17,
20; Doc. 41 at^Hl^,20.
14

(Count II) is "the stronger of her two sex diserimination elaims, Doc. 42 at 7, and that her
retaliation claim "can eo-exist with or as an alternative to her sex diserimination claim," Doe. 42
at 15.

Ofcourse,just because Leighton alleges that MCSD retaliated against her for complaining
about the hand-kissing incident and the princess comment does not give rise to a discrimination

claim under § 2000e-2(a).

Heuer v. Weil-McLain. 203 F.Sd 1021, 1022 (7th Cir. 2000)

(holding that an employer's retaliation against an employee for filing a sexual harassment charge
could not serve as a basis for a sexual harassment claim under Title Vll). If that were the rule

"every claim of retaliation [for complaining about discrimination] would be a claim of
discrimination." Id Count 111, Leighton's retaliation claim, is similar to Count 1, the only major

difference being that Count 111 alleges that both the RIF and MCSD's refusal to interview Leighton
were adverse employment actions MCSD took in retaliation for Leighton complaining about Koch.
As explained below, MCSD is entitled to summaryjudgment on Count 111 ofLeighton's complaint
because Leighton cannot establish that she engaged in protected conduct. Leighton cannot bypass
this protected conduct requirement by simply repackaging her retaliation claim as a "disparate
treatment" claim and bringing it under § 2000e-2(a). MCSD is therefore entitled to judgment as a
matter oflaw on Count 1 of Leighton's complaint.
B.

Count II

Leighton alleges in Count 11 that MCSD violated Title Vll by refusing to hire her for the
positions she applied for because ofher sex. Title Vll makes it an "unlawful employment practice
for an employer...to fail or refuse to hire or to discharge any individual, or otherwise discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because ofsuch individual's ... sex." 42 U.S.C. § 2000e-2(a)(l). To prevail on her

15

failure-to-hire claim,Leighton must either show direct evidence ofdiscriminatory motive or intent,
or rely on the burden-shifting method in McDonnell Douglas Corp. v. Green.411 U.S. 792(1973),
to create an inference of discrimination. Blake v. MJ Optical. Inc.. 870 F.3d 820,825-26(8th Cir.
2017). Leighton contends that she has direct evidence of discrimination and, alternatively, that
she can satisfy the McDonnell Douglas test.
The Eighth Circuit has explained that direct evidence in this context "is not the converse

of circumstantial evidence . . . . [but] is evidence showing a specific link between the alleged
discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable
fact finder that an illegitimate criterion actually motivated the adverse employment action."
Torgerson. 643 F.3d at 1044 (internal quotation marks omitted)(quoting Griffith v. Citv of Des
Moines. 387 F.3d 733, 736 (8th Cir. 2004)). Direct evidence may include "remarks of the

employer that reflect a discriminatory attitude,... comments which demonstrate a discriminatory
animus in the decisional process," and comments "uttered by individuals closely involved in

employment decisions." Roberts v. Park Nieollet Health Servs., 528 F.3d 1123, 1128 (8th Cir.
2008)(quoting EEOC v. Liberal R-II Sch..Dist.. 314 F.3d 920, 923 (8th Cir. 2002)). By contrast,

"stray remarks in the workplace, statements by riondecisionmakers, or statements by
decisionmakers unrelated to the decisional process" do not constitute direct evidence. Elam v.
Regions Fin. Corp..601 F.3d 873,878(8th Cir. 2010)(quoting Clearwater v. Indep. Sch. Dist. No.
166.231 F.3d 1122,1126(8th Cir. 2000)). IfLeighton produces direct evidence ofdiscrimination,
she does not need to rely on the McDormell Douglas framework to survive summary judgment.
Griffith. 387 F.3d at 736.

Leighton's direct case is built on Koch's statement that MCSD hired Nielsen because
Gracevale wanted a "male figure" at the school and someone with more math experience. She

16

contends that this statement is direct evidence of diserimination beeause it is "eontemporaneously
linked" to MCSD's decision not to hire her for the K-8 position at Gracevale. Doc. 42 at 10.
MCSD disagrees, arguing that Koeh was not a decisionmaker, that his statement was unrelated to

the decisional proeess, and that he was merely repeating what Gracevale wanted.

Koch's statement is suffieient direct evidence to defeat summary judgment. Although
MCSD argues that the sehool board has the ultimate authority to deeide whether to hire someone,

Doc. 34 at ]f 53; Doc. 31 at 5,there are cireumstances where an individual is so elosely involved
in the decision-making process that his statements ean constitute direct evidence.

King v

United States, 553 F.3d 1156, 1161 (8th Cir. 2009)(explaining that direct evidence may inelude
eomments by individuals elosely involved with employment deeisions); Mohr v. Dustrol. Inc.. 306
F.3d 636, 641 (8th Cir. 2002)(finding that comments by supervisor not "officially responsible"
for hiring were direct evidence where supervisor played a "pivotal role" in hiring and offieials
deferred to his hiring decision), abrogated on other grounds bv Desert Palaee. Inc. v. Costa. 539

U.S. 90, 95 (2003). At MCSD, the hiring committee essentially acts as a gatekeeper: it
recommends a candidate to the superintendent who then passes that recommendation along to the
sehool hoard if he approves. Doe. 34 at ^38. Farrell acknowledged in his testimony that the

school board has little to do with the hiring proeess until the superintendent presents the board
with a eandidate. Doc. 43-2 at 3-4,7. When asked about the MCSD school board's procedure for
interviewing and selecting candidates who will receive a contraet with MCSD, Farrell testified:

"Each ofthe administrators are given the authority to do what they feel best fits. Most use a hiring

eommittee of staff that they have. Again, the board does not directly work with any of the hiring
ofteaehers." Doc. 43-2 at 7. Koch exercised signifieant control over the hiring eommittee for the
Graeevale positions; he not only seleeted the committee (choosing himself and two teaehers he

17

supervised), but also had the authority to select whom to interview and to conduct the interviews

themselves. Doc.40 at

58,60; Doc.50 at

6-7;Doe. 43-1 at9,11,13. Although Koch claims

in an affidavit that the other two members of the hiring committee could also select which
candidates to interview, Koch's testimony during his deposition suggests that he alone selected the

interviewees for the Gracevale positions. Doc. 43-1 at 11, 13. A reasonable jury could find that
Koch was closely involved in the decision not to hire Leighton for the K-8 position.
Moreover, Koch's "male figure" statement was not simply a stray remark unrelated to the
decisional process. Koch made the statement while meeting with Leighton and her husband to

discuss why Leighton had not received an interview for the teaching positions. Koch explained
Nielsen's hiring for the K-8 position by saying that Gracevale wanted a"male figure" at the school

and someone with more math experience. Taken in the light most favorable to Leighton, the gist
of Koch's statement is that gender was one of the reasons Leighton was not hired for the K-8
position. An admission like Koch's that an illegal criterion factored into an employment decision

qualifies as direct evidence. See Kerns v. Capital Granhies. Inc.. 178 F.3d 1011, 1017 (8th Cir.
1999) (stating that in a sex discriminatiori case, direct evidence "might include proof of an
admission that gender was the reason for an action"). Although MCSD appears to argue that
Koch's statement is not evidence of discrimination because he was merely repeating Graeevale's
preferences, there are at least two problems with MCSD's position. First, the president and the
school administrator of Gracevale submitted a signed letter to the EEOC stating that Gracevale
had not requested a male teacher. Doe. 43-38. MCSD argues that this letter is inadmissible

because it is unsworn and "clearly hearsay," Doc. 54 at 8, but the standard at the summary
judgment stage is whether the evidence"cow/Jbe presented at trial in an admissible form," Gannon

Int'l Ltd. V. Blocker. 684 F.3d 785, 793(8th Cir. 2012). The information in the letter could likely

18

be reduced to admissible form by having Gracevale's president and its school administrator testify
directly about the information at trial. Second, Koch's statement is evidence of discrimination

even if Gracevale told him it wanted a male teacher. Absent circumstances not present here,''*
customer or client preference is not a defense to sex discrimination claims under Title VII.

Tamosaitis v. URS Inc.. 781 F.3d 468, 482—83 (9th Cir. 2015)("In the . . . context of Title VII

actions, we have long held that a customer's discriminatory preference does not justify an
employer's discriminatory practice unless—for those protected categories for which the defense

is available under Title Vll—^the discriminatory requirement amounts to a bona fide occupational
qualification."); Rucker v. Higher Educ. Aids Bd..669 F.2d 1179,1181 (7th Cir. 1982)("Customer
preference has repeatedly been rejected as a justification for discrimination against women.");
Snarenberg v. Eagle All.. No. JFM-14-1667, 2015 WL 6122809, at *6 (D. Md. Oct. 15, 2015)
("Courts have consistently held that,in the emplojnnent law context, client or consumer preference
cannot cleanse an employer's actions—even when the employer claims to have acted free of
bias."). In other words, MCSD can be liable under Title VII for acting on Gracevale's alleged
discriminatory bias even if MCSD did not harbor any bias itself. A reasonable fact finder could
conclude from Koch's statement that gender was more likely than not a motivating factor in the
decision not to hire Leighton for the K-8 position.

MCSD argues, however,- that its attempt to hire two women for the K-8 position before it
offered the job to Nielsen belies Leighton's claim of gender bias. Leighton disputes that MCSD
attempted to hire two women, contending that Nielsen was the hiring committee's first and only

'''Title VII allows employers to make employment decisions on the basis of "religion, sex, or
national origin in those certain instances where religion, sex, or national origin is a bona fide
occupational qualification reasonably necessary to the normal operation ofthat particular business
or enterprise." 42 U.S.C. § 2000e-2(e). MCSD does not argue that gender is a bona fide
occupational qualification for the K-8 position at the Gracevale school.
19

choice. Yet even assuming that MCSD did offer two women the K-8 position before hiring
Nielsen, this fact, although relevant to MCSD's defense, would not establish as a matter of law

that MCSD did not engage in sex discrimination against Leighton. As the Seventh Circuit recently
explained,"[a] failure to discriminate against all women does not mean that an employer has not
discriminated against one woman on the basis of sex." Hivelv v. Ivv Tech Cmtv. Coll. of Ind..

853 F.3d 339, 346 n.3 (7th Cir. 2017)(en banc); see also Strickland v. United Parcel Serv.. Inc..

555 F.3d 1224, 1230(10th Cir. 2009)("A sex discrimination claim does not fail simply because
an employer does not discriminate against every member ofthe plaintiffs sex."); Pitre v. W. Elec.
Co., 843 F.2d 1262, 1272 (10th Cir. 1988)("[T]hat a member of a protected class was hired or
promoted in place of a Title VII plaintiff has repeatedly been held insufficient to insulate the
employer from liability."). Taking the evidence in the light most favorable to Leighton, Koch's
statement suggests that gender was one ofthe reasons the hiring committee chose Nielsen instead

of Leighton for the K—8 position. That MCSD may have offered the job to two women previously
does not conclusively negate Leighton's direct evidence of discrimination against her.
MCSD also argues that Koch's affidavit shows that MCSD had valid, nondiscriminatory
reasons for not selecting Leighton. In paragraph twenty-nine of his affidavit, Koch gave the
following reasons he did not view Leighton as the best candidate for the position:
a. Higher levels of math instruction. I did not believe Mrs.
Leighton possessed the skills to teach in the K-8 classroom. She
admitted that in her undated letter. Exhibit 1
b. When Gracevale split into two colonies, Gracevale had
more students in grades 5-8, Mrs. Leighton's experience at MCSD
had been with primary grades.

c. Students normally begin in 4^^ grade to use math and
reading they learned in primary grades. At this time not all students
are learning at the same pace. However, the students would be

^^Koch is referring here to Leighton's undated letter explaining that she would not be applying for
the K-8 position as it was initially advertised. Contrary to Koch's assertion, Leighton did not
admit in her letter that she lacked the skills for the K-8 position. Doc. 32-1. Rather, she explained
in the letter that she thought it would be difficult for only one teacher to handle all grades at
Gracevale. Doc. 32-1.
20

learning a concept from specific grade level book. Both positions
required someone who could differentiate lessons for students in the

upper level content in order to provide the best education possible
for each student. I did not believe Mrs. Leighton could differentiate
lessons at the upper grades.
d. Mrs. Leighton's education marks for almost all of her

students was [sic] Satisfactory in their learning. However, some
students could struggle with the English language and reading. The
majority of Gracevale's 5-8 grade standardized test in STAR

Reading indicated they were not satisfactory.
e. The two other members for the Hiring Committee and I
believed the other individuals we selected possessed better teaching
skills than Mrs. Leighton. That is the only reason we made the
selections and recommendations as we did.

Doe. 34 at ^ 52; Doc. 32 at ^ 29. These nondiscriminatory reasons Koch provided after litigation

commenced conflict with Koch's earlier statement that Nielsen was hired in part because
Gracevale wanted a male figure. There remains a question of fact about whether gender was a
motivating factor in MCSD's decision not to hire Leighton.
The result is the same under the McDonnell Douglas framework. Under McDonnell

Douglas. Leighton has the initial burden ofshowing a prima facie case of discriminatory failure to

hire by showing that she:(1)is a member of a protected class;(2) applied and was qualified for an
open position;(3) was rejected for that position; and (4) after she was rejected, MCSD continued

to seek applicants with Leighton's qualifications.^^ Hunter v. United Parcel Serv.. Inc.. 697 F.3d
697, 702(8th Cir. 2012). If Leighton establishes a prima facie case, then the burden ofproduction

shifts to MSDC to articulate a legitimate, nondiscriminatory reason for the alleged adverse action.

^^Leighton agrees with MCSD that these are the four elements she must show to establish a prima
facie case for her discriminatory hiring claim. Doe. 42 at 11. The elements of a prima facie case
may vary depending on the facts and context of the particular situation. Texas Dep't of Cmtv.
Affairs v. Burdine.450 U.S.248,253 n.6(1981). In other discriminatory hiring cases,for instance,
the Eighth Circuit has stated that the elements of a prima facie case are (1) that the plaintiff is a
member of a protected class;(2)the plaintiff was qualified for an open position;(3)the employer
denied the plaintiff the position; and(4)the employer filled the position with someone outside the
protected class. Torgerson.643 F.3d at 1046; Amini v. Citv of Minneapolis. 643 F.3d 1068, 1074
(8th Cir. 2011).
21

Id If MCSD meets this burden, Leighton must produce evidence sufficient to create a genuine
issue ofmaterial fact concerning whether MCSD's proffered reasons are pretext for discrimination.

Id Leighton at all times retains "the ultimate burden of proof and persuasion that [MCSD]
discriminated against [her]." Torgerson. 643 F.3d at 1046.

MCSD concedes that Leighton is a member of a protected class and that she applied for
and was qualified for an open position, but disputes that she can satisfy the third and fourth

elements of a prima facie case. As to the third element—that MCSD rejected Leighton—MCSD
contends that Leighton's undated letter to Koch and Sehaefer shows that she did not apply for the
K-8 position and that she therefore could not have been rejected. As discussed in footnote six of

this opinion however, Leighton explained that the undated letter referred to the K-8 position as

MCSD initially offered it and that she applied for the K-8 position once MCSD began advertising
for two teachers at Gracevale. Beyond that, Koch admitted in his deposition that Leighton had
applied for both positions with Gracevale, Doe. 43-1 at 8-9, and MCSD admitted in its answer

that Leighton applied for these positions. Doe. 8 at ^ 17. Leighton can satisfy the third element of
a prima facie ease because she applied for the K-8 position and MCSD rejected her and hired

Nielsen instead. As to the fourth element, Leighton contends that Nielsen's hiring shows that
MCSD continued seeking applicants with Leighton's qualifications after rejecting her.^'' MCSD
has failed to explain how this Court could find against Leighton on the fourth element when it
rejected Leighton for the K—8 position before hiring Nielsen. Leighton has satisfied the fourth
element of a prima facie case.'^

''This would be particularly true if, as MCSD contends,it offered the K-8 position to Nielsen after
two others had tumed down the position.

MCSD s decision to reject Leighton for the K—8 position and hire Nielsen instead would also
satisfy the fourth element ofthe prima facie ease set forth in Torgerson. See Torgerson. 643 F.3d

at 1046 (stating that the fourth element of a prima facie ease for a discriminatory hiring claim is
that the employer filled the position with someone outside the protected class).
22

MCSD,appears to argue that Leighton cannot establish an inference of discrimination

because it initially offered the K-8 position to two women, but Leighton disputes that assertion.
Regardless, as explained above, Koch's statement to Leighton about Nielsen being preferred as a
male by Gracevale is evidence that Leighton's gender was one ofthe reasons the hiring committee

chose Nielsen over Leighton. Evidence that MCSD offered the job to two women before hiring
Nielsen is relevant to the ultimate question of discrimination, but it is not dispositive at the
summaryjudgment stage under these facts.

Because Leighton established a prima facie'case ofsex discrimination, the burden shifts to

MCSD to articulate a legitimate, nondiscriminatory reason for the adverse action. Paragraph
twenty-nine of Koch's affidavit contains such reasons, so the burden shifts back to Leighton to
establish that the reasons are pretext. Plaintiffs typically demonstrate pretext by offering evidence
that the employer's rationale is "unworthy of credence ... because it has no basis in fact" or that

"a [prohibited] reason more likely motivated the employer." Torgerson. 643 F.3d at 1047
(alteration in original)(quoting Wallace v DTG Operations. Inc.. 442 F.3d 1112, 1120 (8th Cir.
2006)). There is a genuine issue of fact concerning whether MCSD's justifieations for not hiring
Leighton are pretext. When Leighton met with Koch to discuss why she had not received an
interview, Koch informed her that MCSD hired Nielsen for the K-8 position because Gracevale

wanted a"male figure" at the school and someone with more math experience. This idea ofhaving
males at Gracevale appeared again in Koch's May 19, 2014 letter to Schaefer, with Koch
explaining that hiring Nielsen and having the student teacher would "provide two male teachers.

This is a first for the Gracevale Colony!" Doc. 43-24. Given this evidence, a reasonable jury
could conclude that gender played a role in MCSD choosing Nielsen over Leighton and that the
reasons set forth in paragraph twenty-nine of Koch's affidavit were pretext for discrimination.

23

C.

Count III—Title VII Retaliation Claim

Title VII forbids retaliation against an employee "because he has opposed any practice
made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a). As with her

failure-to-hire claim, Leighton may avoid summary judgment on her retaliation claim by either
offering direct evidence of retaliation or using the McDonnell Douglas framework to create an

inference of retaliation. Donathan v. Oaklev Grain. Inc.. 861 F.3d 735, 739 (8th Cir. 2017).
Leighton does not argue that she has direct evidence of retaliation, but rather analyzes her claim

under the McDonnell Douglas framework. Doc. 42 at 15-24. Under that framework, Leighton

has the initial burden of establishing a prima facie case of retaliation by showing that: (1) she
engaged in protected activity;(2)she suffered a materially adverse employment action; and(3)the
adverse employment action was causally linked to the protected activity. Pye, 641 F.3d at 1021.

If Leighton establishes a prima facie case, the burden of production shifts to MCSD to proffer "a
legitimate, non-retaliatory reason for its action." IdL (quoting Fercello v. Ctv ofRamsey 612 F.3d
1069, 1078 (8th Cir. 2010)). If MCDS meets this burden, Leighton must offer evidence that the
proffered reason is pretext for discrimination. Id Leighton at all times retains the ultimate burden
of proving that an impermissible retaliatory motive was the "but-for cause" of the adverse

employment action. Donathan. 861 F.3d at 739-40(quoting Nassar. 570 U.S. at 352).
Leighton contends that she engaged in protected activity when she told Koch she was

offended by the hand-kissing incident and by him calling her a princess. She correctly observes
that Title VII does not require her to show that the conduct she opposed actually violated the law.

Rather, an employee engages in protected activity under Title VII so long as she "acted in a good
faith, objectively reasonable beliefthat the practices were unlawful." Boim v. Citv of Omaha.623

F.3d 587, 591 (8th Cir. 2010)(quoting Barker v. Mo. Dep't of Corr.. 513 F.3d 831, 834(8th Cir.

24

2008)). The reasonableness of the employee's belief is measured against "the applicable
substantive law." Brannum v. Mo. Den't of Corr.. 518 F.3d 542, 549(8tb Cir. 2008).
Here, Leigbton does not state which aspect of Title VII she believed Koch's conduct

violated. Again, Title VII forbids retaliation against an employee "because be has opposed any
practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a). Section
2000e-2(a) defines unlawful employment practices as (1) discrimination "against any individual
with respect to bis compensation, terms, conditions, or privileges ofemployment, because ofsuch

individual's . .. sex;" or(2)limiting, segregating, or classifying an employee "in any way which
would deprive or tend to deprive any individual of employment opportunities or otherwise

adversely affect bis status as an employee,because ofsuch individual's ... sex." Id § 2000e-2(a).
As relevant here, there are two types of sex discrimination under Title VII. The first

involves "economic" or "tangible" discrimination, examples of which include termination, failure
to hire or promote, and denial of a transfer. The second type involves sexual harassment in the

workplace. ^Faragber v. Citv of Boca Raton. 524 U.S. 775, 786 (1998) (explaining that
although § 2000e-2(a)(l) "mentions specific employment decisions with immediate
consequences," the statute is "not limited to economic or tangible discrimination" but rather is

broad enough to encompass sexual harassment)(citations and internal marks omitted). The first
type of sex discrimination is of no help to Leigbton. This type of sex discrimination requires an
adverse employment action, which means "a material employment disadvantage." Brannnm,518

F.3d at 549 (quoting Sallis v. Univ. of Minn.. 408 F.3d 470, 476 (8th Cir. 2005)). Employment
actions meeting this standard include "[tjermination, reduction in pay or benefits, and changes in
an employee's future career prospects." Id (quoting Spears v. Mo. Den't of Corr.. 210 F.3d 850,

853 (8th Cir. 2000)). Because neither the kissing incident nor Koch calling Leigbton a princess

25

come anywhere close to qualifying as an adverse employment action, Leighton could not have had

an objectively reasonable belief that this eonduct constituted the first type of sex discrimination.
See Howard v. Walgreen Co.. 605 F.3d 1239,1245(11th Cir. 2010)(holding that employee could
not have had an objectively reasonable belief that employer violated Title VII because the
telephone message the employee complained of fell "well short" of an adverse employment
action); Braimum. 518 F.3d at 549(concluding that the plaintiff could not have had a reasonable

beliefthat she was opposing disparate treatment under Title VII because "there[was] no evidence

from which a reasonable person eould conclude" that an adverse emplojmient action had occurred).
In contrast to the first type of sex discrimination, a plaintiff can prove sexual harassment
without showing an adverse employment action. To prevail on a sexual harassment elaim under

Title VII, however, the plaintiff must show that the harassment was "so severe or pervasive as to
alter the conditions of[the plaintiffs] employment and create an abusive working environment."
Clark Ctv. Sch. Dist. v. Breeden. 532 U.S. 268, 270(2001)(per curiam)(quoting Faragher. 524
U.S. at 786)(internal marks omitted). This is a demanding standard, and "simple teasing, offhand
comments, and isolated incidents (unless extremely serious)" will not suffice. Breeden. 532 U.S.
at 271 (quoting Faragher. 524 U.S. at 788). Courts consider the totality ofthe circumstances when

deciding "whether an environment is sufficiently hostile or abusive," including "the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an employee's work

performance." Faragher, 524 U.S. at 787-88(second passage quoting Harris v. Forklift Svs.. Inc..
510U.S. 17,23(1993)). Koch's conduct falls well short ofTitle VII's sexual harassment standard.

He called Leighton a princess one time when describing how Gracevale thought she eould do no
wrong. Although Leighton testified that Koch's comment offended her, this isolated incident was

26

not so severe or extremely serious" as to alter the conditions of Leighton's emplojmient and

create an abusive working environment. The same is true of Andersen kissing Koch's hand. It is
undisputed that Koch did not initiate the kissing of his hand, that the incident lasted no more than
a few seconds, and that Leighton herself had hugged Koch when she was hired full time for the

2013—2014 school year. Leighton would need to allege facts much more serious or pervasive to
have an actionable sexual harassment claim. See Thibodeaux-Woodv v. Houston Cmtv. Coll.. 593

F. App'x 280, 285 n.4 (5th Cir. 2014) (holding that a supervisor calling the plaintiff "dingy,
princess, and blonde" did not create an abusive working environment); Shepard v. Frontier
Comme'ns Servs.. Inc.. 92 F. Supp. 2d 279, 288-89 (S.D.N.Y. 2000)(declining to find sexual

harassment where plaintiffhad observed another female employee touch their supervisor's leg,the
supervisor had referred to the plaintiff as a "queen" and "princess" on numerous occasions, and

the supervisor had complained to the plaintiff when she refused to accompany him on business
dinners or return his calls).

But the question here is whether Leighton could have reasonably perceived Koch's conduct

as being unlawful. Case law from the Supreme Court and Eighth Circuit provides insight into how
severe or pervasive conduct must be before it can support an objectively reasonable beliefofsexual

harassment. In Breeden. for instance, the Supreme Court held that a female employee could not
' have had a reasonable beliefthat one incident of alleged sexual harassment violated Title VII. 532

U.S. at 271. The female employee in Breeden had met with her male supervisor and a male

coworker to review the psychological reports on some job applicants. Id at 269. One of the
reports mentioned that an applicant had once commented to a coworker: "I hear making love to
you is like making love to the Grand Canyon." Id The supervisor read the comment aloud,looked

at the female employee, and said "I don't know what that means." Id The other male employee

27

responded "Well, I'll tell you later," and both men laughed. li The Supreme Court held that this

single incident eould not "remotely be considered 'extremely serious,' as our cases require." Id.
at 271 (quoting Faragher, 524 U.S. at 788). The Eighth Circuit relied on Breeden to find that a

plaintiff had not engaged in protected conduct when she assisted a male coworker in reporting a
comment made by their supervisor. Brannum. 518 F.3d at 548—49. The supervisor in Brannum
had told the male coworker that he eould not continue working in a particular unit ofa correctional

facility without special training. Id at 545. When the plaintiff, who witnessed this exchange,
remarked that she had yet to receive the special training, the supervisor replied that "[y]ou don't
need the training, women are better by and large as they do a better job than men do anyway and
are more patient and nurturing than men." Id (alteration in original). The supervisor then removed

the male coworker from the unit for the rest of the day. Id The plaintiff sued her employer,
alleging that it had retaliated against her for helping to report the supervisor's comment. Id at
546. The Eighth Circuit held that the supervisor's "single, relatively tame comment . . . is
insufficient as a matter oflaw to support an objectively reasonable beliefit amounted to unlawful
sexual harassment." Id at 548-49. Breeden and Brannum make clear that Koch's conduct is not

close enough to actionable sexual harassment to support an objectively reasonable belief that he
violated Title VII.

Leighton argues that her case is comparable to Buettner v. Arch Coal Sales Co.. 216 F.3d

707 (8th Cir. 2000), and Pve. 641 F.3d 1011, two eases where the Eighth Circuit found that the

plaintiffs had engaged in protected conduct. The plaintiff in Buettner complained that when her
female coworker resigned in finistration over not being promoted, their supervisor said that it was

"just as well that she was leaving, because women and minorities don't belong in the coal

business." 216 F.3d at 711. Without deciding whether this comment"would be sufficient to prove

28

discrimination," the Eighth Circuit concluded that the plaintiff"could demonstrate a good faith,
reasonable belief that the challenged conduct violated the law."'^ Id 714-15. In Pye, a newly-

hired African American employee asked the company's payroll administrator to complete a
verification form the employee needed to receive housing assistance from the county. 641 F.3d at
1015. The payroll administrator told the plaintiff to return in one week after he received a

paycheck. Id. The employee returned in one week but the payroll administrator had yet to

complete the form. Id The payroll administrator told the employee that she did "not really care
about his situation" and called the form "dumb." Id After leaving the payroll administrator's

office, the employee overheard her say"nigger goon." Id The employee filed a written complaint
with his supervisor stating that the payroll administrator had repeatedly failed to complete the
verification form for him despite routinely completing such forms for others, had caused him to

lose housing assistance by not completing the form in a timely and accurate manner, had called

the form dumb, and had referred to him using a racial slur. Id at 1015-16, 1021. During a later
investigation of the complaint, the employee described the events to his employer and suggested
possible remedies for the situation. Id at 1016. The employer eventually fired the employee

because it believed that his statements during the investigation constituted an attempt to get a
company car or a promotion through coercion. Id at 1016-17. The Eighth Circuit concluded that

although the payroll administrator's treatment of the employee did not create a hostile work

environment, the employee's written complaint and his statements during the subsequent
investigation constituted protected conduct. Id at 1018-19, 1020-22.

^^The plaintiff in Buettner also cited other facts to show she had engaged in protected activity,
including an email to her employer expressing concern that she would fall behind male coworkers

in salary if her supervisor conducted her review, an email saying that her supervisor had implied
that she was "too aggressive," and a report to human resources that her supervisor had a "problem
with women." Id. at 714 n.7.
29

The conduct Leighton complains of is not nearly as severe as the conduct in Buettner and

Pye. After all, the supervisor in Buettner came right out and said that women did not belong in
the coal business when discussing a female who had resigned over not being promoted. 216 F.3d
at 711. And the payroll administrator in Pye not only called the employee an extremely offensive
racial slur, but also refused to complete the verification form the employee needed to secure
housing assistance. 641 F.3d at 1015-16, 1021. In contrast to the blatant sexism in Buettner and

racism in Pye, Koch called Leighton a princess when explaining that Gracevale thought she could

do no wrong. Although calling a female employee a "princess" could qualify as an inappropriate
gender stereotype, equating Koch's statement to the blatant conduct in Buettner and Pye ignores
the context in which he used the term. At bottom, Leighton may have been offended by Koch's
conduct, but Title VII "does not set forth 'a general civility code for the American workplace.'"
Burlington N.& Sante Fe Rv. Co. v. White. 548 U.S. 53,68(2006)(quoting Oncale v. Sundowner

Offshore Servs.,Inc..523 U.S.75,80(1998)). Because Leighton could not have had an objectively
reasonable beliefthat Koch's conduct violated Title VII, her complaint to Koch about this conduct

does not constitute protected activity and she is unable to establish the first element of a prima
facie case ofretaliation. MCSD is entitled to judgment as a matter oflaw on Count III, Leighton's
retaliation claim.^°

^''Leighton's argument that she engaged in protected activity focuses mainly on her February 20,
2014 meeting with Koch when she complained about the hand-kissing incident and the princess
comment. However, Leighton also asserts that a reasonable jury could find that she engaged in
protected activity when she "objected to [Koch] telling her that he wanted to hire a male at

Gracevale;" when she met with Koch on May 28, 2014, and "reiterated her complaints and even
asked if these eomplaints were the reason that she had not gotten an interview for the jobs she
applied for;" and when she asked the MCSD school board on July 14, 2014 "to address both the
inappropriate conduct she witnessed and the gender discrimination complaint." Doc. 42 at 17-18.

Because Leighton did not make any of these statements before the alleged adverse employment
actions, these statements cannot help her establish a prima facie case of retaliation. As stated
above, Leighton must show that she suffered an adverse employment action (meaning an action
that might have dissuaded a reasonable worker from making or supporting a charge of
30

D.

Punitive Damages

Punitive damages were unavailable under Title VII until Congress passed the Civil Rights

Act of 1991. See Kolstad v. Am.Dental Ass'n. 527 U.S. 526. 533-34119991. As part ofthis 1991
legislation, Congress amended Title VII to allow punitive and compensatory damages if the
defendant "engaged in unlawful intentional discrimination" prohibited by Title VII. 42 U.S.C.
§ 1981a(a)(l). Section 1981a(b)(l)sets forth the standard for determining when punitive damages
are available in Title VII cases:

A complaining party may recover punitive damages under this
section against a respondent (other than a government, government
agency or political subdivision) if the complaining party
demonstrates that the respondent engaged in a discriminatory
practice or discriminatory practices with malice or with reckless
indifference to the federally protected rights of an aggrieved
individual.

discrimination), and that this action was causally linked to her protected activity. The two adverse
employment actions Leighton points to in her complaint and brief are the RIF and the failure to

interview and hire her for the open positions. Doc. 1 at Tfif 51-61; Doc. 42 at 20. But the RIF
occurred on March 10, 2014, and MCSD appears to have conducted its interviews in April 2014
and decided whom to hire by mid-May at the latest. Because the additional statements Leighton
relies on to show protected conduct all occurred on May 28,2014, or later, Leighton cannot show
a causal connection between these additional statements and the earlier-occurring adverse
employment actions. Tellingly, Leighton's argument that she meets the causal connection element
focuses solely on the short time period between her complaints on February 20,2014, and the RIF
on March 10, 2014. Doc. 42 at 21. Leighton does not make any argument that there is a causal
connection between the additional statements discussed in this footnote and an adverse

employment action. To the extent Leighton believes that the hiring and interviewing process
continued through May 2014, the evidence shows that MCSD had hired Nielsen by May 12, Doc.
32-3 at 4, and, at the very least, taken significant steps toward hiring Andersen before May 28,
Doc. 43-25; Doc. 43-26; Doc. 43-24; Doc. 40 at ]f65. Thus, even if MCSD had not finalized
Andersen's hiring by May 28, Leighton could not show a causal connection between complaints
she made on or after this date and MCSD's decision not to hire or interview her for the Title 1

position. See Breeden.532 U.S. at 272("Employers need not suspend previously planned transfers
upon discovering that a Title VII suit has been filed, and their proceeding along lines previously
contemplated, though not yet definitively determined, is no evidence whatsoever of causality.").

31

42 U.S.C. § 1981a(b)(l). A clear majority ofdistrict courts have concluded that school boards and

school districts are immune from punitive damages under Title VII because these entities qualify
as a government agency or a political subdivision. ^Suarez v. Sch. Bd. of Hillsborough Ctv..

No. 8:13-cv-1238-T-17MAP, 2015 WL 3628268, at *7 (M.D. Fla. June 10, 2015); Parsons v.
Okaloosa Ctv. Sch. Dist.. No. 3:09cv254AVS/EMT,2010 WL 1753152, at *3(N.D. Fla. Mar. 30,
2010); Brown v. Baldwin Union Free Sch. Dist.. 603 F. Supp. 2d 509,518-19,519 n.9(E.D.N.Y.
2009)(collecting district court cases). South Dakota law also suggests that school districts are part
of the State's government. See SDCL § 6-8-1 (defining a "political subdivision" for purposes of
statute concerning bonds as "any county, township, improvement district, municipality, or school
district in the State of South Dakota"); Gasper v. Freidel. 450 N.W.2d 226, 229 (S.D. 1990)
("School districts are state agencies exercising and wielding a distributive portion ofthe sovereign
power of the state, and the officers of school districts are the living agencies through whom the
sovereign state act is carried into effect." (quoting Bego v. Gordon. 407 N.W.2d 801, 804(S.D,
1987))).

Leighton argues, however, that the Eighth Circuit's decision in Sanders v. Lee Countv

School District No. 1. 669 F.3d 888 (8th Cir. 2012), shows that she can sue MCSD for punitive
damages. The plaintiffin Sanders sued a school district and several school board members in their
individual and official capacities under Title VII and 42 U.S.C. § 1983. Sanders v. Lee Ctv. Sch.
Dist. No. 1. No. 2:08CV00219 JLH, 2010 WL 358529, at *1 (E.D. Ark. Jan. 22, 2010). A jury

found in the plaintiffs favor on her race discrimination and constructive discharge claims and
awarded her punitive damages against three individual members ofthe school board. Sanders. 669

F.3d at 890. The district court set aside the constructive discharge and punitive damages verdicts
and the plaintiff appealed. Id. at 890. The Eighth Circuit remanded the case to allow the plaintiff

32

to prove her punitive damages claim subject to the individual school board members'right to prove
ignorance of federal law. Id at 895.

Sanders does not support Leighton's argument that she can sue MCSD for punitive
damages. Although the Eighth Circuit in Sanders referred to the plaintiffs causes of action as
"Title VII claims," id. at 890, the district court opinion made clear that the plaintiff sued for
employment discrimination under both Title VII and § 1983, Sanders. 2010 WL 358529, at *1, 3,
6. The plaintiffs decision to sue the school board members in their individual capacities under
§ 1983 explains why she could recover punitive damages. After all, § 1983 allows a plaintiff to
recover punitive damages against a government official in the official's individual capacity. Nix
V. Norman. 879 F.2d 429, 431 (8th Cir. 1989). In contrast. Title VII does not allow individual
capacity suits against government officials. Bonomolo-Hagen v. Clav Cent.-Everlv Cmtv. Sch.

Dist.. 121 F.3d 446, 447(8th Cir. 1997)(per curiam)(holding that there is no individual liability
under Title VII); Cross v. Ala. Den't of Mental Health. 49 F.3d 1490, 1504 (11th Cir. 1995)

(concluding that a plaintiff could not bring an individual capacity suit imder Title VII against a
state official because the official did not meet Title VIEs definition of an "employer"); Sauers v.
Salt Lake Ctv.. 1 F.3d 1122, 1125 (10th Cir. 1993)("Under Title VII, suits against individuals

must proceed in their official capacity; individual capacity suits are inappropriate."); Moss v.
Texarkana Ark. Sch. Dist.. 240 F. Supp. 3d 966, 973 (W.D. Ark. 2017) (granting summary
judgment on Title VII claims against principal and superintendent in their individual capacities

"because there is no individual liability under Title VII").^' And because an official capacity suit

^'Some federal appellate courts have stated that a "supervisor or employee cannot be held liable
for a Title VII violation unless he otherwise qualifies as an 'employer.'" Sharma v. Ohio State
Univ.. 25 F. App'x 243, 246 (6th Cir. 2001). The complaint in Sanders alleged that the school
district was the plaintiffs employer, not the individual members of the school board. Sanders v.
Lee Countv School District. 2:08-cv-00219-JLH, Doc. 1.
33

is the equivalent of suing the government agency or political subdivision itself, Guzman v.

Sheahan,495 F.3d 852, 859(7th Cir. 2007), § 1981a(b)(l) bars a Title VII plaintiff from using an

official capacity suit to recover punitive damages against an employee of a government agency or
political subdivision, Oden v. Oktibbeha Ctv.. 246 F.3d 458,465-66(5th Cir. 2001)(holding that
§ 1981a(b)(l) barred the plaintiffs Title VII claim for punitive damages against a sheriff in his

official capacity). To be sure, the Eighth Circuit in Sanders did not say that the individual capacity
claims under § 1983 were the reason the plaintiffcould recover punitive damages against the board
members. In fact, the Eighth Circuit cited to § 1981a(b)(l), the standard for determining punitive

damages under Title VII.^^ Sanders. 669 F.3d at 894—95. But the Eighth Circuit in Sanders did
not address and certainly did not hold that school boards and school districts somehow are not

government agencies or political subdivisions. Indeed, the Eighth Circuit never discussed, and it
appears that the parties never raised, the prohibition under § 1981a(b)(l) on punitive damages
claims against a government, government agency, or political subdivision.

Under these

circumstances, Sanders cannot be read as allowing Title VII plaintiffs to recover punitive damages
from school boards and school districts. See Lors v. Dean. 746 F.3d 857, 860 n.3 (8th Cir. 2014)
("Questions which merely lurk in the record, neither brought to the attention ofthe court nor ruled
upon, are not to be considered as having been so decided as to constitute precedents." (quoting
Webster v. Fall. 266 U.S. 507, 511 (1925))). In accordance with the clear majority of district
courts, this Court concludes that § 1981a(b)(l) prohibits Title VII plaintiffs from recovering
punitive damages against a school district like MCSD. MCSD is therefore entitled to judgment as

a matter oflaw on Leighton's punitive damages claim.

^^The Eighth Circuit's reliance on § 1981a(b)(l) made no difference in the outcome ofthe case as
the standards for punitive damages under Title VII and § 1983 are essentially the same. See
Swinies v. Kofka. 419 F.3d 709, 717-18 (8th Cir. 2005).
34

IV.

Conclusion

For the reasons stated above, it is hereby
ORDERED that MCSD's Motion for Summary Judgment, Doc. 29,is granted as to Counts

I and III of Leighton's complaint. MCSD's motion is otherwise denied. It is further
ORDERED that MCSD's Motion for Partial Summary Judgment on Punitive Damages,
Doc. 36, is granted.

DATED this

day of September, 2018.
BY THE COURT:

ROBERTO A. LANGE

UNITED STATES DISTRICT JUDGE

35