Johnson v. Scott County School Board et al

Filing 70

OPINION AND ORDER granting in part and denying in part 59 Motion for Summary Judgment. Signed by Judge James P. Jones on 10/28/13. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
KELLIE JOHNSON,
Plaintiff,
v.
SCOTT COUNTY SCHOOL
BOARD, ET AL.,
Defendants.

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Case No. 2:12CV00010
OPINION AND ORDER
By: James P. Jones
United States District Judge

Gerald L. Gray, Gerald Gray Law Firm, Clintwood, Virginia, and Edward
G. Stout, Curcio & Stout, PC, Bristol, Virginia, for Plaintiff; W. Bradford Stallard
and P. Danielle Stone, Penn, Stuart & Eskridge, Abingdon, Virginia, for
Defendants.
In this employment discrimination case, the plaintiff has sued her employer,
a local school board, and four members of that board, asserting three separate
claims: sexual harassment under Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2012), (Count One); unlawful
retaliation under Title VII (Count Two); and violation of her constitutional right to
equal protection under the law pursuant to 42 U.S.C.A. § 1983 (West 2012),
(Count Three). Counts One and Two seek relief against the board itself, while
Count Three is against certain named board members individually. The defendants
have now moved for summary judgment in their favor on all three counts. For the

following reasons, I will grant the motion as to Count Three but deny it as to
Counts One and Two.

I. FACTUAL BACKGROUND.
The following facts taken from the summary judgment record are either
undisputed or, where disputed, are stated in the light most favorable to the plaintiff.
The plaintiff Kellie Johnson was initially employed by the Scott County,
Virginia, School Board (the “Board”) as a school counselor but was later promoted
to assistant principal and eventually principal of Weber City Elementary School
(“Weber City”). On July 28, 2010, Johnson met with Greg Baker, then the Board’s
attorney, who indicated to Johnson that she would be promoted to assistant
superintendent once he was appointed by the Board as the new Scott County
school superintendent. She denied interest in the promotion, but on July 31, the
retiring superintendent Jim Scott strongly encouraged her to accept it.
Baker’s path to appointment was not without its difficulties, however, owing
primarily to the fact that he had previously been convicted of soliciting a prostitute
and had lied about that conviction on a judicial application, causing the loss of his
local judgeship and suspension as a lawyer. Board member Kathy McClelland
opposed his appointment, and she cited the aforementioned indiscretions as well as
inappropriate behavior toward a woman during his judgeship as the bases for her
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opposition, although she gave scant detail to her fellow board members about the
incident during his judgeship. Nonetheless, in September 2010, Baker was hired
by the Board in a five-to-one vote.
On November 1, 2010, Johnson was promoted to Director of Personnel and
Instruction of the Scott County school system and assigned to the Central Office.
On the same day, Baker entered an apprentice position at the Central Office in
anticipation of his replacement of Scott as superintendent.

In December 2010,

Baker began sending Johnson text messages, “asking [her] to hook him up with a
woman, talking about his family and how he was lonely, he didn’t have anyone.”
(Johnson Dep. 32). Baker sent text messages of this nature on a daily basis, and
their content escalated into pleas for assistance in finding a woman like her.
In January 2011, Baker officially became superintendent; he revised the
Central Office’s organizational structure, and as a result, Johnson, alongside John
Ferguson, became one of two assistant superintendents.

At various points in

January and February, Baker continued to make inappropriate remarks to Johnson,
both in person and by text — that he could not live without Johnson; that he loved
her; that he had told his father that he had found the perfect woman; and that,
although other school employees were “breaking down his door, dying to sleep
with him,” he wanted Johnson. (Johnson Dep. 69). On February 11, 2011, during
the return trip from a conference in Richmond, Baker cried, again telling Johnson
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that he loved her and could not live without her. The next day, he sent her a text
telling her that she had left a scarf in his car and that he had slept with it the
previous night. On Valentine’s Day, Baker gave Johnson a box of chocolates.
On February 18, 2011, Johnson met with Baker in his office, and with her
father listening in from her office, she requested a transfer out of Central Office but
hoped to remain in her current position. Baker responded, “Well, Kellie, you know
this is not good for your [sic] professionally. This would not be a good move for
you.” (Carter Dep. 16). On February 21, with her husband listening by cell phone,
Johnson met Baker at a restaurant, requesting again to be transferred out of the
Central Office. Despite these entreaties, Baker took no immediate action. As a
result, Johnson avoided working near Baker in the Central Office and spent more
time in the various schools fulfilling her duties as assistant superintendent.
On March 3, Baker sent Johnson a series of text messages expressing
excitement about a trip to Williamsburg and stating, “Want to take you drinking
and dancing and fucking!!!!! 3 things I’m great at.” (Johnson Dep. 44-45, Ex. 1).
She responded with “Way inappropriate.” (Johnson Dep. 45, Ex. 1). On March 10,
Johnson called Baker one last time requesting a transfer, and when no progress was
made, she decided to report Baker’s behavior to a Board member. 1

1

Johnson contends that all of her transfer requests were not requests for a different
and lesser position but only requests for a physical transfer out of the Central Office in
order to obtain distance from Baker.
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She first approached Board chairman James Jessee on March 15. Jessee,
who admitted to her that he had his suspicions, suggested that Johnson speak with
Board member McClelland. She did so later that day, explaining that she was
unable to do her job due to Baker’s advances.

An apologetic McClelland

remarked, “I just knew something like this was going to happen.” (McClelland
Dep. 41.) Johnson’s father spoke with Board member Lowell Campbell that same
evening and showed him the sexually explicit text messages from Baker.
Campbell spoke with Baker that night, and Baker neither admitted nor denied
sending the text messages.
On the following day, Board member McClelland and Chairman Jessee
confronted Baker, and he denied the allegations. In an email sent the same day,
Baker reassigned Johnson to Weber City, in a newly-created position as Director of
Instruction and Teacher Performance. However, Jessee instructed Johnson to take
a two-week leave. On March 26, in a telephone conversation with Board member
Dennis Templeton, Johnson was told she would be working at Weber City under
the supervision of Assistant Superintendent Ferguson.
Johnson reported to Weber City on March 31 to find her new office with “no
heating, no air, didn’t have a phone line, no office supplies.” (Johnson Dep. 145).
She did not have a key to this office, so she was let in daily by the school
custodian. In a letter dated the same day, Ferguson wrote, “The School Board has
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requested that I notify you that your salary will be reduced to $67,565 effective
with the 2011-12 contract year.” (Ferguson Dep., Ex. 1). Her salary at the time
was approximately $82,000. In June 2011, the Board formally demoted Johnson to
principal of Weber City for the following contract year.

II. STANDARD OF REVIEW.
Summary judgment is appropriate when there is “no genuine issue of
material fact,” given the parties’ burdens of proof at trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); see Fed. R. Civ. P. 56(a). In determining
whether the moving party has shown that there is no genuine issue of material fact,
a court must assess the factual evidence and all inferences to be drawn therefrom in
the light most favorable to the non-moving party. See Ross v. Commc’ns Satellite
Corp., 759 F.2d 355, 364 (4th Cir. 1985), overruled on other grounds, Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989).

“Rule 56(e) permits a proper

summary judgment motion to be opposed by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings themselves . . . .” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986).

Applying these standards, the

defendants’ motion for summary judgment must be granted in part and denied in
part.

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III. DISCUSSION.
A. Sexual Harassment Claim.
To successfully establish a Title VII claim based on a hostile work
environment, the plaintiff must show “that the offending conduct (1) was
unwelcome, 2 (2) was based on her sex, (3) was sufficiently severe or pervasive to
alter the conditions of her employment and create an abusive work environment,
and (4) was imputable to her employer.” Ocheltree v. Scollon Prods., Inc., 335
F.3d 325, 331 (4th Cir. 2003) (en banc) (citation omitted).

Challenging the

plaintiff’s satisfaction of the final two factors, the defendants assert that the record
does not evince sufficiently severe or pervasive conduct so as to create an
actionable harassment claim and further argue that the offending conduct was not
imputable to the employer, insofar as an affirmative defense precludes liability as
to the defendant Board.
The severity or pervasiveness of the conduct in question is subject to both an
objective and subjective component.

Id. at 333.

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“The environment must be

The defendants contend, although somewhat indirectly, that Johnson acquiesced
in Baker’s advances. They allege that Johnson frequently called Baker, sometimes late at
night, and sexually propositioned him on occasion; that she took Baker to dinner several
times; and that she did not positively rebuff his invitation to a sporting event. They also
refer to a late-night email to Baker in which Johnson wrote, “Can’t sleep.” (Johnson Dep.
213, Ex. 16). Johnson, however, disputes this contention and has provided sufficient
evidence to support resolution of that dispute by a jury. She made repeated requests to be
transferred out of Central Office, she responded to Baker’s lewd text message with “Way
inappropriate,” and she directly denies Baker’s allegations that she welcomed and
encouraged his conduct.
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perceived by the victim as hostile or abusive, and that perception must be
reasonable.” Ziskie v. Mineta, 547 F.3d 220, 227 (4th Cir. 2008). Objectively,
hostile work environments are “permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment . . . .” Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation and internal quotation marks
omitted). The court must consider the totality of the circumstances, 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.”

Id. at 23.

Additionally, the court must examine “the social context in which particular
behavior occurs and is experienced by its target.” Onacle v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998). “Severity inquiries . . . have often involved a
disparity in power between the harasser and the victim.” Mineta, 547 F.3d at 227.
The record contains evidence that Baker’s conduct was frequent,
humiliating, and deleterious to Johnson’s work performance.

Moreover, the

conduct was perpetrated by the most senior executive official in the school system.
The defendants counter that courts, in previous cases, have been presented with
more egregious conduct than is present here and found it to be insufficiently

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severe.

However, the Fourth Circuit recently found this approach to be an

inappropriate basis for granting a motion for summary judgment:
On appeal, Freightliner . . . undertakes to defend the district court’s
summary judgment on the issue of severity/pervasiveness by
cataloging some of the myriad cases that have come before this court
and that involved behavior considerably more offensive and
opprobrious than that shown here. While this tack is understandable,
and assuming that other cases involve more heinous behavior in male
dominated workplaces than that shown here, we have never held that a
weak case is necessarily one that should be disposed of on summary
judgment. The question at the summary judgment stage is not
whether a jury is sure to find a verdict for the plaintiff; the question is
whether a reasonable jury could rationally so find.
Hoyle v. Freightliner, LLC, 650 F.3d 321, 334 (4th Cir. 2011). Furthermore, the
primary decision cited by the defendants in support of this contention emphasizes
that the plaintiff did not “allege that [her supervisor] ever requested a sexual act,
touched her inappropriately, discussed sexual subjects, showed her obscene
materials, told her vulgar jokes, or threatened her. Nor does [the plaintiff] allege
that [this] behavior interfered with her ability to perform her job.” Singleton v.
Dep’t of Corr. Educ., 115 F. App’x 119, 122 (4th Cir. 2004) (unpublished). The
record in this case, however, is not bereft of such allegations.
Baker sent Johnson a series of lewd text messages containing explicit sexual
language and a nearly explicit sexual proposition in anticipation of a trip to
Williamsburg. He also previously declared that, while he could easily have sex
with other school personnel, it was Johnson that he wanted. These statements,
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coupled with his frequent amorous advances, led Johnson to request a transfer out
of Central Office on several occasions and finally to notify Board members when
she felt it had become too difficult to perform her duties. Indeed, at that point, she
had begun to avoid working from Central Office and rebuffed Baker’s requests to
meet personally. As such, I find there is a dispute of material fact as to the severity
or pervasiveness of Baker’s conduct.
Next, the defendant asserts an affirmative defense so as to preclude the
Board’s liability on Johnson’s sexual harassment claim. In the context of a hostile
work environment, the Supreme Court has succinctly discussed imputation to the
employer and the accompanying affirmative defense:
An employer is subject to vicarious liability to a victimized employee
for an actionable hostile environment created by a supervisor with
immediate (or successively higher) authority over the employee.
When no tangible employment action is taken, a defending employer
may raise an affirmative defense to liability or damages, subject to
proof by a preponderance of the evidence . . . . The defense comprises
two necessary elements: (a) that the employer exercised reasonable
care to prevent and correct promptly any sexually harassing behavior,
and (b) that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided by
the employer or to avoid harm otherwise. . . . No affirmative defense
is available, however, when the supervisor’s harassment culminates in
a tangible employment action, such as discharge, demotion, or
undesirable reassignment.

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Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).3

A tangible

employment action is “a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits.” Id. at 761. Moreover, the
employment action need not be personally executed by the alleged harasser,
because “the harasser may use his or her discriminatory intent to set in motion a
tangible employment action taken by someone else.” Dulaney v. Packaging Corp.
of Am., 673 F.3d 323, 332 (4th Cir. 2012). Indeed, there need only be a showing of
“some nexus between the harassment and the tangible employment action for the
latter to be actionable.” Id.
In the present case there is a genuine dispute of material fact as to whether
the alleged harassment culminated in a tangible employment action. On the day
after she reported his conduct, Baker reassigned Johnson to Weber City with
significantly different responsibilities in her new position, and only two weeks
later, the Board notified Johnson that her pay would be significantly reduced in the
following contract year. Therefore, the availability of the affirmative defense
cannot be resolved on this motion for summary judgment.

3

Because the defense can be disposed of on the basis of a tangible employment
action, I do not discuss in detail the two elements of the affirmative defense.
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B. Retaliation Claim.
Section 704(a) of Title VII provides that “[i]t shall be an unlawful
employment practice for an employer to discriminate against any of his employees
. . . because [the employee] has opposed any practice” made unlawful by Title VII.
42 U.S.C.A. § 2000e-3. There are two methods of proof by which a Title VII
retaliation claim may be established: (1) by “ordinary principles of proof using any
direct or indirect evidence relevant to and sufficiently probative of the issue,” or if
such evidence is lacking, (2) under the burden-shifting framework first articulated
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973). Brinkley v.
Harbour Recreation Club, 180 F.3d 598, 607 (4th Cir. 1999) (citation and internal
quotation marks omitted), overruled on other grounds, Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003).
The plaintiff does not provide any direct proof of a discriminatory
motivation underlying the employment action and thus must proceed under the
McDonnell Douglas scheme. 4 Under that method of proof, the plaintiff must first
establish a prima facie case of retaliation, and if successful, the burden then shifts
4

There is no indication in the record of conduct or statements that directly
indicates a discriminatory motivation for the adverse employment action. See Warch v.
Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th. Cir. 2006) (citation and internal quotation
marks omitted) (“Direct evidence must be evidence of conduct or statements that both
reflect directly the alleged discriminatory attitude and that bear directly on the contested
employment decision.”); see also Brinkley, 180 F.3d at 608 (“To survive summary
judgment on the basis of direct and indirect evidence, [the plaintiff] must produce
evidence that clearly indicates a discriminatory attitude at the workplace and must
illustrate a nexus between that negative attitude and the employment action.”)
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to the defendants to provide a legitimate, non-retaliatory reason for the
employment action. See Brinkley, 180 F.3d at 607. Once the employer meets its
burden, the plaintiff must provide evidence that the defendant’s stated reason is
mere pretext for a retaliatory motivation. Id. Ultimately, to defeat a motion for
summary judgment, the plaintiff need only establish “a prima facie case of
discrimination, combined with evidence from which a jury could conclude that an
employer’s proffered justification was false . . . .” Burgess v. Bowen, 466 F. App’x
272, 277 (4th Cir. 2012) (unpublished).
To establish a prima facie case of retaliation under the McDonnell Douglas
framework, the plaintiff must show: (1) that she engaged in a protected activity; (2)
that the employer took adverse employment action against her; and (3) that there
existed a causal connection between the protected activity and the adverse action.
See Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 242 (4th Cir. 1997).
While it is not disputed that Johnson engaged in a protected activity, nor is it
contested that adverse employment action was taken against her, a question exists
as to the causal connection between the former and the latter.
The Supreme Court has noted that reliance on mere temporal proximity as
sufficient evidence of causation requires that such proximity be “very close.” See
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citation and internal
quotation marks omitted). The defendants focus on her reassignment the following
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school year, but the plaintiff has produced evidence showing that an adverse
employment action occurred almost immediately. The day after she complained of
Baker’s conduct to several Board members, Baker reassigned her to a new position
in a new location. The Board acquiesced in this assignment and, in turn, notified
her of a significant reduction in pay only two weeks later. While her reassignment
for the following school year did not occur for several months, the salary reduction
and her relocation were both sustained upon final action by the Board. This
evidence is sufficient for the plaintiff to carry her initial burden of establishing a
prima facie case.
The defendants allege, as their legitimate, non-retaliatory reason, that the
Board was committed to “unwinding” the staffing changes made by Baker during
his tenure as superintendent. However, whether that reason suffices to meet the
plaintiff’s prima facie case cannot be resolved at this point in the case. There is
minimal evidence in the record to deduce the accuracy of that contention, and the
plaintiff’s co-assistant superintendent was indeed promoted in the midst of the
“unwinding” procedure. Moreover, the plaintiff has proffered sufficient evidence
that the stated reason may be pretextual. The notification of a salary reduction
only two weeks after her complaints indicates that the Board acquiesced in Baker’s
initial reassignment and that her demotion was imminent prior to the development
of any plan to undo Baker’s organizational changes. Insofar as the defendants’
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stated reason is insufficient at the summary judgment stage, the retaliation claim
must be left to the jury.
C. Equal Protection Claim.
The equal protection claim can be dealt with summarily.

The plaintiff

claims the individual Board members violated her right to equal protection by
hiring Baker with the knowledge that he had a propensity to engage in sexuallyharassing behavior toward women. However, the standard for establishing such a
violation is demanding:
To succeed on an equal protection claim, a plaintiff must first
demonstrate that he has been treated differently from others with
whom he is similarly situated and that the unequal treatment was the
result of intentional or purposeful discrimination. Once this showing
is made, the court proceeds to determine whether the disparity in
treatment can be justified under the requisite level of scrutiny.
Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). There is simply no
evidence in the record to support a finding that any of the individual board
members voted to hire Baker with the intent or purpose of discriminating against
Johnson or other female employees. As such, summary judgment is appropriate on
this claim.

IV. CONCLUSION.
For the reasons stated herein, it is ORDERED as follows:

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1.

The Motion for Summary Judgment (ECF No. 59) is GRANTED IN

PART AND DENIED IN PART; and
2.

The Motion for Summary Judgment is DENIED as to the plaintiff’s

sexual harassment claim (Count One) and retaliation claim (Count Two) and
GRANTED as to the plaintiff’s equal protection claim (Count Three). The
individual Board members are dismissed as parties.

ENTER: October 28, 2013
/s/ James P. Jones
United States District Judge

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