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Brown v. Keystone Learning Services

United States District Court, D. Kansas

November 19, 2018

MARK E. BROWN, Plaintiff,



         Plaintiff Mark E. Brown brings this action against his former employer, Defendant Keystone Learning Services, alleging race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Before the Court is Defendant's Motion for Summary Judgment (Doc. 37). The motion is fully briefed and the Court is prepared to rule. For the reasons explained in detail below, the Court grants Defendant's motion for summary judgment on all claims.

         I. Summary Judgment Standard

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.[1] In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[2] “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.”[3] A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”[4] An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.”[5]

         The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.[6] In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.[7]

         Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”[8] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[9] Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”[10] To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.”[11] Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.[12] The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.[13]

         Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”[14] In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.”[15]

         II. Uncontroverted Facts

         The following material facts are uncontroverted, stipulated to, or viewed in the light most favorable to Plaintiff as the nonmoving party.

         Defendant Keystone Learning Services (“Keystone”) is a special education cooperative that provides services to eight school districts in Kansas, offering learning opportunities to students struggling in traditional academic settings. Keystone is a Kansas governmental entity duly authorized and existing pursuant to the Kansas Interlocal Cooperation Act.[16] Defendant maintains policies and procedures adopted by its governing board of education which prohibit discrimination or retaliation based upon inter alia, race, color, religion, sex, national origin, age, handicap, or disability in the admission, or access to, or treatment in Defendant's programs and activities. These policies and procedures include providing employees with formal and informal procedures to complain of discrimination and harassment.

         Plaintiff Mark Brown, who is African American, applied for the following teaching positions advertised by Keystone in the summer of 2015: special education grades 7 through 12, and substitute teacher grades K through 12. Keystone sent Plaintiff a letter on September 1, 2015, stating: “This is a notification that the substitute teaching position for which you recently interviewed for has been filled. However, we will keep your application materials on file for future openings.”[17] Plaintiff was ultimately hired by Defendant on October 26, 2015, as a Substitute JDLA Special Education Teacher at John Dewey Learning Academy under a written employment contract. The start date for the contract was October 26, 2015, and there was no end date provided.

         The position was designated as an English position working with special education students. Plaintiff's teaching license from the State of Kansas allows him to teach in the areas of learning disabilities, physical education, health, and psychology. Although he may not have been qualified to be hired for a permanent English teaching position, since he had a teaching license, he was qualified to be hired as a substitute teacher.

         John Dewey Academy Principal Terri Coughlin told Plaintiff upon hire that he would be the first African-American teacher at the school, and that she was happy to have some diversity because the school had at least two African-American students. In December 2015, at least two of these African-American students left John Dewey Academy. In mid-December 2015, Coughlin told Plaintiff that Keystone had hired a permanent teacher to fill the position for which he had been a substitute, and that the school would no longer need his services after the end of the semester that month. Plaintiff was unaware of Defendant's grievance procedure that may have allowed him to challenge the termination. Instead, Defendant retained legal counsel, who sent the following letter to Defendant on December 29, 2015:

I have been retained to represent Mr. Brown in this matter.
My understanding is that Mr. Brown was hired by contract for a long term substitute position for special education students for an English class. However, on December 15, 2015 you indicated to Mr. Mark Brown that his last day at work would be December 17, 2015. Mr. Brown's contract indicates an annual, renewable employment relationship. It is and has always been Mr. Brown's intention to fulfill his duties under the contract. As such, he is ready and willing to return to work after the Christmas break.
It seems the only basis for terminating Mr. Brown's employment is lack of funding. However, I understand that Mr. Brown is being replaced by another teacher, indicating there is not a lack of funding. Additionally, Keystone Learning Services had a job posting on December 18, 2015 seeking substitute teachers and special education teachers. Mr. Brown is certified in both these areas.
If you wish to resolve this matter amicably, please contact me at your earliest convenience. Mr. Brown, is ready, willing, and able to be a substantial asset to your school.[18]

         The parties' attorneys discussed Plaintiff's demand letter, and then Andy Ewing, Executive Director at Keystone, told Coughlin that he wanted to find a position for Plaintiff for the spring. Defendant eventually offered and Plaintiff accepted a contract for the remainder of the 2015-16 school year. This new contract was a “Temporary Employment Contract 2015-2016, ” for a “substitute teacher, an employment at-will position.”[19] The contract term was from January 5, 2016, to May 25, 2016. Plaintiff understood that this was a temporary contract that would expire on May 25, 2016. Plaintiff started working again at John Dewey Academy before the Board approved the contract, however, his employment was contingent upon Board approval. Plaintiff finished the term of this temporary contract and was paid all compensation due.

         At the end of the 2015-16 school year, Coughlin offered Plaintiff a temporary position for the 2016-17 school year as a paraprofessional; she told Plaintiff that there were no teaching positions available. Principal Coughlin also asked Plaintiff if he would be interested in a position with Keystone's “Harvester program” over the summer, helping another teacher named Mr. Millner. Ewing understood the Harvester program opportunity and the paraprofessional position for 2016-17 to be one in the same, however, Coughlin understood that the Harvesters program was “its own position.”[20]

         Plaintiff told Coughlin he was interested in the Harvesters program after she told him the rate of pay and the days he would be required to work. Mr. Millner emailed Plaintiff a schedule that included a start and end date. When he arrived on the first day of the program, he was sent home. By that time, Plaintiff's attorney had contacted Defendant by letter stating that Plaintiff continued to be employed by Defendant under the original 2015-16 employment contract signed in October 2015. Defendant understood from this letter that Plaintiff would not accept any position other than the substitute teaching position he held the previous year.

         Plaintiff did not separately apply for any vacant employment positions with Defendant after his temporary employment contract expired in May 2016, nor did he notify Keystone's Human Resources Manager, Lushena Newman, that he was interested in a full-time position at the end of his term. In reliance on the September 1, 2015 letter he received from Newman on behalf of Keystone, Plaintiff believed that his original application for the 2015-16 substitute teacher position in the summer of 2015 sufficed for him to be considered for any regular teaching positions that became vacant for the 2016-17 school year. Newman usually held onto an application for approximately eighteen months, and contacted the applicant if they qualified for a future vacancy. But Newman testified that once an applicant is hired by Keystone, either as a permanent or substitute teacher, “their application is no longer in my pile of contact information.”[21] After becoming a Keystone employee, the person must let Newman know if they remain interested in a future position.

         Defendant advertises its vacant teaching positions online. Defendant also sends emails to current employees, notifying them of vacant positions. Plaintiff did not receive these emails in the spring and summer of 2016, most likely because he was a temporary substitute teacher who was not on the email list. He later discovered that Keystone had advertised on the Kansas teaching website for special education teachers throughout the spring of 2016.

         Defendant selected and hired teachers for the 2016-17 school year from the individuals who applied and were qualified for those positions. Newman did not consider Plaintiff interested in full-time employment during the 2016-17 school year based on his 2015 application because “that's a new school year, ”[22] and because he had not separately applied for any posted positions.

         During the period of his employment, Plaintiff did not complain of race discrimination or retaliation. On July 5, 2016, he dual-filed an administrative charge with the Equal Employment Opportunity Commission (“EEOC”) and the Kansas Human Rights Commission (“KHRC”) alleging race discrimination and retaliation against Keystone. In this charge, the date of the alleged incident is April 28, 2016 to May 16, 2016. He alleges he was denied a position for the 2016-17 school year, even though teaching positions were available. He further states that he was terminated on May 16, 2016, in retaliation “for having openly opposed acts and practices forbidden by the Kansas Act Against Discrimination.”[23]

         III. Discussion

         In the Pretrial Order, Plaintiff alleges race discrimination claims under Title VII and 42 U.S.C. § 1981 based on the following discrete adverse employment actions: (1) termination of his employment in December 2015 in favor of a less favorable employment agreement in January 2016; (2) failure to hire for the 2016-17 school year; and (3) failure to hire for the Harvesters program.[24] Plaintiff also alleges a claim of retaliation under Title VII and § 1981 for challenging the termination decision in December 2015. The Court first addresses Defendant's argument that Plaintiff failed to exhaust certain discrimination claims under Title VII by not including them in his administrative charge. Next, the Court addresses the merits of Plaintiff's claims.

         A. Title VII Claims

         1. Failure to Exhaust Disparate Treatment Claims for Unlawful Termination and Failure to Hire for Harvesters Program

         At the time Defendant moved for summary judgment, failure to exhaust administrative remedies was considered a jurisdictional bar to a Title VII claim in the Tenth Circuit.[25] Thus, Defendant moved to dismiss for lack of jurisdiction any Title VII claims not included in Plaintiff's July 5, 2016 administrative charge. But on August 17, 2018, a panel of the Tenth Circuit, after obtaining authorization from the full court, overruled that precedent in Lincoln v. BNSF Railway Co., holding “that a plaintiff's failure to file an EEOC charge regarding a discrete employment incident merely permits the employer to raise an affirmative defense of failure to exhaust but does not bar a federal court from assuming jurisdiction over a claim.”[26] In this case, Defendant asserted failure to exhaust as a defense in the Pretrial Order, and raised the issue of exhaustion in its motion for summary judgment. It also addressed the issue in the context of an affirmative defense in the reply brief, filed after the Lincoln decision was issued. The Court therefore considers Defendant's exhaustion argument as an affirmative defense.

         The primary distinction between treating exhaustion as jurisdictional rather than as an affirmative defense, is that as an affirmative defense it is subject to waiver and estoppel.[27] The difference is immaterial where waiver and estoppel do not come into play.[28] Here, Defendant did not waive the defense because it was raised in both the Answer and the Pretrial Order .[29]And Plaintiff does not raise estoppel. Thus, the Court proceeds to consider whether Defendant has met its burden to demonstrate exhaustion as an affirmative defense based on the same standards that governed its applicability as a jurisdictional issue.

         To exhaust administrative remedies, a plaintiff must file a charge of discrimination with either the EEOC or an authorized state agency and receive a right-to-sue letter based on that charge.[30] The Court must liberally construe the administrative charge to determine whether a particular claim has been exhausted.[31] The inquiry “is limited to the scope of the administrative investigation that can reasonably be expected to follow from the discriminatory acts alleged in the administrative charge.”[32]

         Plaintiff's administrative charge alleges race discrimination on the following basis: “On April 28, 2016, I was denied a position for the 2016-2017 school years. However, on April 22, 2016 and April 29, 2016, the Respondent posted several teaching positions for the 2016-2017 school year.”[33] Plaintiff does not dispute that his unlawful termination and failure to hire for the Harvesters Program claims were not included in his administrative charge. Instead, he argues that his exhausted claims are “similar to” his unlawful termination allegation and are part of a “continuing effort by defendant to eliminate plaintiff from its workforce.”[34] Plaintiff further argues that the facts surrounding his unexhausted claims are material to his exhausted claim for failure to hire for the following school year.

         While it may be true that the facts surrounding the unexhausted claims are relevant to the exhausted claim, relevance is not the standard. Under the notice standard that applies, the Court easily finds that the only exhausted claim alleged by Plaintiff in this case is the failure to hire him for the 2016-17 school year. Nothing in the charge puts Defendant on notice that Plaintiff would allege unlawful termination in December 2015-in fact, the charge alleges he was unlawfully terminated on May 16, 2016, a claim that is tied to his failure to hire claim. Accordingly, neither the KHRC nor the employer was on notice of a need to investigate the facts surrounding his 2015 termination, or the Harvesters Program failure-to-hire allegation, and those two Title VII claims must be dismissed on the affirmative defense of failure to exhaust.

         2. Discrimination for Failure to Hire for 2016-17 School Year

         Plaintiff's disparate treatment and retaliation claims must be decided under the familiar McDonnell Douglas v. Green[35] burden-shifting framework because Plaintiff relies on circumstantial evidence.[36] Under McDonnell Douglas, plaintiff initially bears the burden of production to establish a prima facie case of discrimination or retaliation.[37] The burden of establishing the prima facie case is “not onerous.”[38] If plaintiff establishes a prima facie case, the burden shifts to defendant to articulate a facially nondiscriminatory reason for its actions.[39]If defendant articulates a legitimate nondiscriminatory reason, the burden shifts back to plaintiff to present evidence from which a jury might conclude that defendant's proffered reason is pretextual, that is, “unworthy of belief.”[40]

         To establish a claim for failure-to-hire under Title VII and § 1981, Plaintiff must show: (1) he belongs to a protected class; (2) he applied and was qualified for a job for which the employer was seeking applicants; (3) despite being qualified, the plaintiff was rejected; and (4) after his rejection, the position remained open and Defendant continued to seek applicants from persons with Plaintiff's qualifications.[41]

         Defendant does not contest that Plaintiff belongs to a protected class, but argues that Plaintiff cannot satisfy the other elements of his failure-to-hire claim. First, Defendant argues there is no evidence that Plaintiff applied for and was qualified for any 2016-17 teaching positions. Yet the parties dispute whether Plaintiff's application submitted in the summer of 2015 continued to serve as an application for subsequent openings for which he was qualified after he was hired. And the evidence, when viewed in the light most favorable to Plaintiff, supports his contention that his summer 2015 application should have caused Defendant to consider him for other teaching positions that became available for the 2016-17 school year. Keystone's October 1, 2015 letter made clear that it would keep Plaintiff's application on file and consider him for other positions that may become available. And Newman testified that she routinely held on to applications for eighteen months-the positions for which Plaintiff claims he should have been considered were posted within this window of time. Newman's testimony that Plaintiff's application was no longer considered active because of his subsequent temporary employment may be true, but this fact was not communicated to Plaintiff.

         Next, Defendant argues that Plaintiff cannot demonstrate he was rejected for a teaching position during the 2016-17 school year. Defendant points to evidence that Plaintiff was offered a position as a paraprofessional during the 2016-17 school year. But Plaintiff argues that this position was for less money than a teaching position, and that he was not considered for teaching positions, despite being qualified.

         Finally, Defendant argues that the positions at issue were filled with qualified applicants; they did not remain open. But this argument depends on there being a lack of evidence that Plaintiff applied for the open teaching positions. Plaintiff, however, has submitted evidence that he thought his 2015 application continued to serve as an application for open positions in 2016- 17, and he did not receive the emails sent by human resources in the spring of 2016 that may have prodded him to investigate those positions before they were filled. Plaintiff has met his light burden of demonstrating a prima facie case of discrimination for failure to hire him for the 2016-17 school year.

         The burden shifts to Defendant to articulate a legitimate nondiscriminatory reason for not hiring Plaintiff. Defendant maintains that it hired teachers for the 2016-17 academic year who actually applied and were qualified for the positions. Therefore, the burden shifts back to Plaintiff to demonstrate that Defendant's stated reason for its decision was a pretext for discrimination. Plaintiff can demonstrate pretext by showing “such weaknesses, implausibilities, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.”[42] Mere conjecture is not enough; a plaintiff must “cast doubt” on the employer's explanations by specifically pointing out these “implausibilities, incoherencies, or contradictions.”[43]

         Typically, a plaintiff attempts to demonstrate pretext in one or more of three ways:

(1) “evidence that the defendant's stated reason for the adverse employment action was false”; (2) “evidence that the defendant acted contrary to a written . . . policy prescribing the action to be taken by the defendant under the circumstances”; or (3) “evidence that the defendant acted contrary to an unwritten policy or contrary to [the employer's] practice when making the adverse employment decision affecting the plaintiff.” Regardless of which methods the plaintiff uses, “[t]he relevant inquiry is not whether the employer's proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.”[44]

         Here, Plaintiff makes a single argument in support of his pretext showing: that Coughlin's statement to him in the spring of 2016 that no teaching positions at Keystone were available the following school year was false.

         Plaintiff offers no evidence that Coughlin's statement was false at the time it was made. Of course, Coughlin was the principal of but one school with which Keystone placed its teachers. Moreover, Coughlin's cited-to deposition testimony states that there was a special education teacher position available in the 2015-16 school year; it does not support Plaintiff's assertion that “defendant advertised for at least three special education teacher positions” for the 2016-17 school year.[45] That leaves Plaintiff's own testimony that Coughlin gave him false information, but Plaintiff merely states that after Coughlin's told him there were no open teaching positions, he learned that ...

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