United States District Court, D. Kansas
MARK E. BROWN, Plaintiff,
UNIFIED SCHOOL DISTRICT NO. 501, Defendant.
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE.
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.
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
Employment and Litigation History
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.
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.” 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.
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.
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.
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).
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.
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).
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.
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
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.
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.
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.
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. 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 ...