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Brown v. Unified School District No. 501

United States District Court, D. Kansas

July 24, 2019

MARK E. BROWN, Plaintiff,
v.
UNIFIED SCHOOL DISTRICT NO. 501, Defendant.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER UNITED STATES DISTRICT JUDGE.

         Plaintiff Mark E. Brown, a teacher formerly employed by Defendant Unified School District No. 501, filed this lawsuit under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., alleging that Defendant refused to rehire him based on his race and in retaliation for a prior lawsuit he filed against Defendant. Defendant moves for summary judgment on all claims, or, in the alternative, for partial summary judgment on Plaintiff's claims for compensatory damages and front pay. Doc. 54.

         The Court grants Defendant's motion for summary judgment in its entirety. First, the Court finds that, although Plaintiff has met the prima facie burden on his failure-to-hire claim, Plaintiff cannot rebut Defendant's legitimate, nondiscriminatory reasons for refusing to rehire him by showing that those reasons were mere pretext for discrimination. Second, the Court finds that Plaintiff cannot establish a prima facie case on his retaliation claim, and, even if he could, he again cannot show that Defendant's stated reasons for its no-rehire decision were pretext. The Court accordingly concludes that summary judgment is warranted.

         I. BACKGROUND[1]

         A. Employment and Litigation History

         Plaintiff is an African-American male who Defendant-a school district serving the Topeka, Kansas area-employed from 1982 to 1996 as a physical education (“P.E.”) teacher and, for some of that time, as a basketball coach. Doc. 55 at 2 ¶ 1; Doc. 60 at 2 ¶ 1. During his employment, Plaintiff received a number of critical teacher evaluations. Doc. 55 at 2-4 ¶¶ 2, 11-13, 15-17, 19; Doc. 60 at 2-3 ¶¶ 2, 11-13, 15-17, 19. The evaluations note concerns related to Plaintiff's professionalism, communication skills, and inappropriate comments to students. Id. In one evaluation, Principal Dr. Barbara Davis stated that, in her 27 years as an administrator, she found Plaintiff's performance as a P.E. teacher to be less than that of other teachers in the areas of professional skills, interpersonal relationships, and especially personal characteristics. Doc. 55 at 3-4 ¶ 13; Doc. 60 at 3 ¶ 13. In October 1991, Principal Dr. Abigail Calkin wrote a letter requesting Plaintiff be transferred to a different school due to doubts he could conduct a P.E. program that meets students' needs. Doc. 55 at 4 ¶ 16; Doc. 60 at 3 ¶ 16. Dr. Calkin stated that, for the benefit of the students, the school should have “a new and far better P.E. teacher.” Id.

         Defendant's concerns, however, were not limited to Plaintiff's performance as a teacher. In 1989, Plaintiff was removed from his position as a girls' basketball coach at Topeka High School based on a report of inappropriate sexual conduct. Doc. 55 at 3 ¶ 8; Doc. 60 at 2 ¶ 8. Specifically, the mother of one of the players complained to Principal Dr. Ned Nusbaum about comments Plaintiff made to her daughter, prompting an investigation by Defendant. Doc. 55 at 2 ¶ 3; Doc. 60 at 2 ¶ 3. Dr. Nusbaum's investigation summary states the female player told the investigator that Plaintiff suggested she break up with her boyfriend, have a candlelight dinner with Plaintiff, and “do the wild thing” with Plaintiff. Doc. 55 at 2 ¶ 4; Doc. 60 at 2 ¶ 4. Another student corroborated this account. Id. Two other female students on the basketball team reported to Dr. Nusbaum that Plaintiff often told the girls to “stop dickin' around.”[2] Doc. 55 at 2 ¶ 6; Doc. 60 at 2 ¶ 6. Defendant accordingly reassigned Plaintiff to an assistant coaching position with the boys' basketball team. Doc. 55 at 3 ¶ 9; Doc. 60 at 2 ¶ 9. However, Defendant later removed Plaintiff from that position due to performance issues. Doc. 55 at 3 ¶ 10; Doc. 60 at 3 ¶ 10.

         In 1991, Plaintiff sued Defendant for race discrimination and retaliation based on his transfer from girls' basketball coach to boys' basketball coach and his subsequent discharge from the boys' basketball position. See Brown v. Unified Sch. Dist. No. 501, Shawnee Cty., State of Kan., 1992 WL 105096 (D. Kan. 1992) (“Brown I”). The suit failed after the jury and Judge Richard Rogers of this District found in favor of Defendant, with Judge Rogers ruling that Plaintiff's transfer had nothing to do with his race or the fact that he had filed discrimination complaints. Doc. 55 at 6 ¶ 30; Doc. 60 at 4 ¶ 30. Defendant did not take any disciplinary or other action against Plaintiff following this ruling. Doc. 55 at 7 ¶ 34; Doc. 60 at 4 ¶ 34. Plaintiff continued working for Defendant until his resignation in 1996. Id.

         Four years after his resignation, in 2000, Plaintiff applied to Defendant for re-employment. Doc. 55 at 5 ¶ 21; Doc. 60 at 3 ¶ 21. Defendant's General Director of Human Resources, Andrea Lynn King, interviewed Plaintiff. Id. After the interview, on August 27, 2001, Ms. King sent Plaintiff a letter relating Superintendent Dr. Robert McFrazier's decision that, “due to [Plaintiff's] past employment record with [Defendant], ” he would not be considered for rehire. Doc. 55 at 5 ¶ 22; Doc. 60 at 3 ¶ 22. Plaintiff nonetheless continued to send letters to Ms. King about employment, who, in turn, continued to reiterate that Plaintiff would not be rehired. Doc. 55 at 5-6 ¶¶ 24, 25, 27; Doc. 60 at 3-4 ¶¶ 24, 25, 27. In May 2003, after Plaintiff again asked to be rehired (this time, for a special education position at Highland Park High School), Ms. King sent a letter advising Plaintiff again that he “will not be considered for the position at HPHS or any other position in the Topeka Public Schools.” Doc. 55 at 5-6 ¶ 27; Doc. 60 at 4 ¶ 27.

         In 2004, Plaintiff sued Defendant again, this time alleging failure-to-rehire based on race and retaliation (“Brown II”). Doc. 55 at 7 ¶ 35; Doc. 60 at 4 ¶ 35. Judge Donald Bostwick of this District granted summary judgment in favor of Defendant and held that the suit was untimely filed. See Brown v. Unified Sch. Dist. No. 501, 2005 WL 6087359 (D. Kan. 2005). The Tenth Circuit affirmed on appeal. See Brown v. Unified Sch. Dist. 501, Topeka Pub. Sch., 465 F.3d 1184 (10th Cir. 2006).

         Nevertheless, Plaintiff, seemingly undeterred, continued to apply for teaching positions with Defendant. In 2009, Plaintiff applied for three separate positions within the school district: substitute teacher, special education teacher, and head girls' basketball coach. Doc. 55 at 7 ¶ 36; Doc. 60 at 4 ¶ 36. After Plaintiff's attorney received notice in October 2009 that Plaintiff would not be considered for any position, Plaintiff filed his third lawsuit against Defendant, alleging that Defendant's refusal to rehire him was based on his race and in retaliation for his prior lawsuits (“Brown III”). See Brown v. Unified Sch. Dist. No. 501, 2011 WL 2174948 (D. Kan. 2011). Plaintiff based his discrimination and retaliation claims in part on comments allegedly made by Defendant's outside attorney, Dave Mudrick, at a school board executive session on October 1, 2009, which were later characterized by Magistrate Judge Karen Humphreys as “run-of-the mill legal advice.” Doc. 55 at 8 ¶¶ 39-40; Doc. 60 at 4 ¶¶ 39-40.

         Judge Thomas Marten of this District ultimately granted summary judgment in favor of Defendant on various alternative grounds, including: that Plaintiff's claims were time-barred; that Plaintiff's claims were subject to dismissal pursuant to the doctrines of res judicata and collateral estoppel due to the preclusive effect of Brown II; that Plaintiff failed to demonstrate that Defendant's proffered reasons for not rehiring him were pretext for unlawful discrimination; and that Plaintiff failed to establish a prima facie case of retaliation because he did not present any admissible evidence that his prior protected activity was causally related to Defendant's decision not to rehire him. See Brown, 2011 WL 2174948, at *14-18. The Tenth Circuit affirmed, finding Plaintiff (1) failed to establish pretext for his race discrimination claim and (2) failed to show a causal connection between his protected activity and an adverse employment action sufficient to establish a prima facie case of retaliation. See Brown v. Unified Sch. Dist. No. 501, 459 Fed.Appx. 705 (10th Cir. 2012).

         B. 2016 Interviews

         In the summer of 2016, Defendant was looking for substitute teachers qualified to fill positions for the upcoming school year. Doc. 60 at 10 ¶ 16; Doc. 61 at 6 ¶ 16. The requirements for employment as a substitute teacher with Defendant include that the candidate possess a current teaching certificate or be eligible to obtain one. Doc. 60 at 10 ¶ 18; Doc. 61 at 6 ¶ 18. Defendant also has a diversity initiative whereby it is committed to increasing the ratio of minority teachers to students in the school district. Doc. 60 at 10 ¶ 23; Doc. 61 at 7 ¶ 23.

         On July 15, 2016, Plaintiff again reapplied with Defendant, submitting an online application for employment as a substitute teacher. Doc. 55 at 9 ¶ 47; Doc. 60 at 5 ¶ 47. In August 2016, Plaintiff interviewed with Dr. Jennifer Harrington, Defendant's General Director of Special Services and Special Education, for a special education teaching position with Defendant. Doc. 60 at 9 ¶¶ 10, 12; Doc. 61 at 4-5 ¶¶ 10, 12. At the time of the interview, Dr. Harrington did not have knowledge of Plaintiff's prior history with Defendant. Doc. 55 at 9 ¶ 50; Doc. 60 at 5 ¶ 50. And Plaintiff did not disclose to Dr. Harrington that he was previously notified that he was not eligible for rehire. Doc. 55 at 9 ¶ 49; Doc. 60 at 5 ¶ 49. Plaintiff contends that, after the interview, Dr. Harrington said she would give his name to principals within the school district but Plaintiff never heard from anyone. Doc. 55 at 9 ¶ 48; Doc. 60 at 5 ¶ 48. Dr. Harrington ultimately recommended another candidate for the position: Mychal Moore. Doc. 55 at 9-10 ¶ 52; Doc. 60 at 5 ¶ 52. Dr. Harrington selected Mr. Moore rather than Plaintiff because Mr. Moore had a Master's degree, was a then-current teacher, and, based on her assessment, had more enthusiasm and knowledge than Plaintiff and provided more satisfactory responses in the interview process. Id. Like Plaintiff, Mr. Moore is African-American. Doc. 55 at 10 ¶ 53; Doc. 60 at 5 ¶ 53. Mr. Moore was hired for, and still holds, the position. Id.

         Plaintiff also interviewed with Ruth Marstall, a recruiter for Defendant, in August 2016. Doc. 55 at 10 ¶ 54; Doc. 60 at 5 ¶ 54; Doc. 60 at 8 ¶ 4; Doc. 61 at 2-3 ¶ 4. At the time she interviewed Plaintiff, Ms. Marstall, like Dr. Harrington, did not know that Plaintiff had previously worked for Defendant, and Plaintiff did not disclose that he was not eligible for rehire. Doc. 55 at 10 ¶¶ 56-57; Doc. 60 at 5 ¶¶ 56-57. After the interview, Ms. Marstall forwarded Plaintiff's application for consideration for a full-time teaching position. Doc. 60 at 8 ¶ 5; Doc. 61 at 3 ¶ 5. Ms. Marstall's testimony reflects that she passed the application on for further consideration based on the fact that Plaintiff had a current teaching certificate and due to the district's diversity initiative. Doc. 60 at 8 ¶ 6; Doc. 61 at 3 ¶ 6. Ms. Marstall subsequently learned that Plaintiff was not eligible for rehire. Doc. 55 at 10 ¶ 58; Doc. 60 at 5 ¶ 58.

         Offers for employment with Defendant are made through the Human Resources department. Doc. 55 at 11 ¶ 66; Doc. 60 at 6 ¶ 66. Defendant's current General Director of Human Resources, Carla Nolan (who also held the position in 2016), was informed by her predecessor, Ms. King, that Plaintiff was not eligible for rehire due to his job performance. Doc. 55 at 11 ¶ 67; Doc. 60 at 6 ¶ 67. Ms. Nolan's knowledge of Plaintiff's prior employment was limited to what Ms. King told her and the contents of Plaintiff's personnel file. Doc. 55 at 11 ¶ 68; Doc. 60 at 6 ¶ 68. Plaintiff's personnel file contained the August 2001 no-rehire letter, as well as Dr. Nusbaum's summary of the 1989 sexual misconduct investigation and Plaintiff's performance evaluations. Doc. 55 at 2-4, 11-12 ¶¶ 5, 11, 15-16, 69; Doc. 60 at 2-3, 6 ¶¶ 5, 11, 15-16, 69. Ultimately, Plaintiff received an email indicating that Defendant was not going to offer him a position. Doc. 55 at 10 ¶ 59; Doc. 60 at 5 ¶ 59. During Plaintiff's application process, no one at Defendant ever made any racist remarks or said Plaintiff was not hired due to his race. Doc. 55 at 12 ¶ 70; Doc. 60 at 6 ¶ 70.

         Defendant agrees that the current superintendent, Dr. Tiffany Anderson, could change Plaintiff's eligibility status, but Dr. Anderson has not done so. Doc. 60 at 12 ¶¶ 32, 39; Doc. 61 at 10, 11-12 ¶¶ 32, 39. In connection with his latest attempt at reemployment in 2016, Plaintiff reached out to Dr. Anderson to discuss his reemployment with Defendant. Doc. 60 at 12 ¶ 33; Doc. 61 at 10 ¶ 33. Dr. Anderson subsequently forwarded Plaintiff's request to Ms. Nolan, and Ms. Nolan advised Dr. Anderson that Plaintiff was not eligible for rehire due to performance reasons. Doc. 60 at 12 ¶ 37; Doc. 61 at 11 ¶ 37. The decision not to reverse the August 2001 no-rehire decision was ultimately made by Ms. Nolan. Doc. 55 at 14 ¶ 84; Doc. 60 at 7 ¶ 84.

         C. Current Lawsuit

         Plaintiff subsequently filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the Kansas Human Rights Commission (“KHRC”), and the EEOC issued Plaintiff a notice of right to sue letter on April 4, 2017.[3] Doc. 1 ¶ 4; Doc. 9 ¶ 4; Doc. 1-1. Plaintiff now brings the current action against Defendant-his fourth-alleging that Defendant, in violation of Title VII, refused to rehire him based on his race and ...


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