Opinion
C. A. 4:21-cv-2787-JD-KDW
02-17-2023
Kevin George, Sr., Plaintiff, v. Florence One Schools, Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge.
Plaintiff Kevin George, Sr. (“George” or “Plaintiff”) brings this action against his employer, Florence One Schools (the “District” or “Defendant”).Plaintiff's Complaint included claims of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, as amended, and under 42 U.S.C. § 1981 (“Section 1981”). Compl., ECF No. 1. In a June 17, 2022 Order the court adopted the undersigned's earlier Report and Recommendation that dismissed Plaintiff's Section 1981 cause of action. ECF Nos. 31, 34. This matter is now before the court on Defendant's Motion for Summary Judgment. ECF No. 35. Plaintiff opposes this Motion, ECF Nos. 37, 38; Defendant filed a Reply, ECF No. 41. Having considered the parties' filings and applicable law, the undersigned recommends Defendant's Motion for Summary Judgment be granted as to all claims except the Title VII discrimination claim as to the June 2020 application for an assistant principal position at South Florence High School (“SFHS”). 1
This employment matter was referred to the undersigned for pretrial proceedings. See 28 U.S.C. § 636(b); Local Civ. Rule 73.02(B)(2) (D.S.C.). This Report and Recommendation (“Report”) is submitted to the district judge as to Defendant's potentially dispositive motion.
Additional proffered evidence is discussed below.
A. Plaintiff's employment with the District
Plaintiff has been employed with the District since August 2001. Pl. Resume, ECF No. 352 (also available at ECF No. 38-5).From 2001 through 2014, Plaintiff worked as a special education and science teacher at Wilson High School. In 2014, he transferred to the District's alternative school, Alfred Rush Academy (“Rush” or “Rush Academy”), to teach science. In 2017, he applied for the open position of Assistant Director of Rush Academy for the 2018-19 school year. Id. For that position, Plaintiff was interviewed by the then-Director at Rush, Mr. Kennedy; and the then-District Director of Secondary Education, Dr. Kelvin Wymbs. Pl. Dep. 58-59, ECF No. 35-3. In May 2017, Plaintiff was offered the position and accepted it. Id. at 60; May 27, 2017 Offer Letter, ECF No. 35-4. Plaintiff became an assistant principal at Wilson High School in 2021.
For concision, when both parties provide copies of the same exhibit the court generally cites to only one of them.
Rush Academy is the District's alternative school where middle school and high school students with severe disciplinary issues are sent with the goal of eventually being returned to their home schools. District Superintendent Richard O'Malley Dep. 24-26, ECF No. 35-5. When COVID-19 shut down all the schools in the state in March of 2020, Rush Academy went virtual for the last few months of that school year, and it remained virtual for the entire 2020-21 school year as well. George Dep. 64. In the 2020-21 school year Rush Academy had approximately 50 students enrolled to attend virtually at any given time. Pl. Dep. 65.
B. Plaintiff's May 2020 application for Moore Middle School Principal
In May 2020, Plaintiff applied for the principal position at Moore Middle School. Plaintiff estimated that, for the 2020-21 school year, Moore would have had approximately 700 students. 2 Pl. Dep. 81-83. Plaintiff was not interviewed for that position. Pl. Dep. 83. April Leroy, a White female who had been an assistant principal at Sneed Middle School, was chosen for the Moore Middle School Principal position. In his deposition Superintendent O'Malley noted Leroy had been working at Sneed, which was a school that was comparable in size to Moore. O'Malley Dep. 32-35. O'Malley noted Moore was transitioning in the grades it would contain, and someone with a “skill set for knowledge, in the areas of transitioning to a middle school; relationships with students, relationships with teachers, and relationships with community members - to help ease this transition.” O'Malley Dep. 33. As pointed out by Plaintiff, in the District's counsel-prepared Position Statement to the Equal Employment Opportunity Commission (“EEOC”) related to Plaintiff's Charge of Discrimination, the District indicated Superintendent O'Malley “had experience working with Ms. Leroy in the past and was impressed with her professionalism and capabilities.” District's Dec. 29, 2020 Position Statement to EEOC/South Carolina Human Affairs Commission (“SCHAC”) 2, ECF No. 38-18. In the Position Statement the District characterized Plaintiff's experience at Rush Academy as “very different from and inferior to that of Ms. Leroy[.].” Id.
C. Plaintiff's June 2020 application for SFHS Assistant Principal
In early June 2020, the District posted an opening for an assistant principal at SFHS. SFHS Principal Shand Josey (White female), Gregory Dukes (SFHS Assistant Principal, Black male). and Shemeika Nero (SFHS Assistant Principal, Black female) served as the interview panel for this position. SFHS Principal Josey Aff. ¶ 3, ECF No. 35-8. On Tuesday, June 16, 2020, the panel interviewed two candidates. On Monday, June 22, 2020, they interviewed three additional candidates, one of whom was chosen to be recommended for hire. The interview panel recommended Mrs. Joni Bown for the position, and the offer was made to her on Tuesday, June 3 23, 2020. Josey Aff. ¶¶ 4-6. Plaintiff submitted his application for the position on June 25, 2020, three days after final interviews were held and two days after the offer was made to Bown. Id. ¶ 7; Application Receipt, ECF No. 35-9. Josey indicated Plaintiff was not interviewed because the position had been filled at the time he applied. Josey Aff. ¶ 7. As noted by Plaintiff, in the District's Position Statement to the EEOC/SCHAC, the District did not mention the tardiness of Plaintiff's application. Rather, Defendant indicated Plaintiff “did not have the requisite skill set needed to fulfill the instructional assistant principal position and thus, he was not interviewed[,]” and he was less qualified than Bown, the candidate who was hired. Position Statement 2-3.
D. The District transferred an assistant principal to an unadvertised SFHS Assistant Principal position
In August 2020, Defendant transferred Daniel Humber, White male, into the position of Assistant Principal of SFHS without advertisement and without affording anyone the opportunity to interview for the position. Position Statement 3. The District indicated the position was not advertised because it “was not an opening the District had but rather was created based on the needs of the District as a result of the COVID-19 pandemic and the realigning of students from the Career Center [where Humber had been the assistant principal] to SFHS.” Id. The District noted Humber's prior experience as a band director “fit with the arts background of SFHS, which is a designated school for the arts in the District.” Id.
E. Plaintiff's Amended Charge of Discrimination
On November 9, 2020, Plaintiff filed an Amended Charge of Discrimination with the EEOC and SCHAC alleging race and gender discrimination for not having been chosen for the above-referenced principal and assistant principal positions. Charge, ECF No. 35-10. Plaintiff submits that both positions were filled by less qualified White females. Id. The Charge also indicates he recently learned of the “internal transfer of an Assistant Principal (White male) to a 4 vacant Assistant Principal position, without either of the vacancies being announced.” Id. Plaintiff's Charge also makes reference to having contacted the District's Chief Officer of Human Resources (“HR”), Nathaniel Marshall (White male) to complain about an interaction with Ashley Watson, Director of Recruitment and Certification (White female) concerning his applications. Plaintiff indicates his concerns were not addressed. Id.
After an investigation, SCHAC issued its Dismissal and Notice of Right to Sue based on a no-cause finding. April 26, 2021 SCHAC RTS Letter, ECF No. 35-11. On May 28, 2021, the EEOC issued its Dismissal and Notice of Rights adopting the findings of SCHAC. EEOC RTS Letter, ECF No. 35-12. Plaintiff filed the instant litigation on August 27, 2021.
F. Plaintiff's June 2021 application for Rush Academy Director
Plaintiff continued to work as the Assistant Director at Rush Academy for the 2020-21 school year. In June of 2021, the position of Director for Rush Academy became open. Plaintiff submitted his application and was interviewed along with three other qualified candidates by a panel consisting of the following: Greg Hall, Assistant Superintendent of Secondary Education (White male); Precious Wymbs, then a high school assistant principal (Black female); Lisa Spears, supervisor of school-based therapists (Black female); and Ronald Oates, middle school principal (White male). Hall Dep. 20-22. The panel had a list of questions to ask each candidate and a scoring matrix comparing the candidates in a number of domains, including vision, instructional program, supports for students/interventions, and communications. Hall Dep. 23-24; List of Principal Interview Questions and completed Matrix scoring applicants for Director of Alternative Program Interview Score Summaries, ECF No. 35-14. Those scores indicate lead candidate Chris Coleman's score was a 60; applicants McCall and Mackins scored 56 and 50 respectively; and 5 Plaintiff's score was a 35. Id. at 4. Coleman (Black male) was recommended for the position. Hall Dep. 29.
Plaintiff indicates he received an email on June 4, 2021 scheduling his June 8, 2021 interview for the Rush Academy Director position in which it listed Christopher Coleman as one of the interview panelists. June 4, 2021 Email Invitation, ECF No. 38-20. Plaintiff indicates he saw Coleman on June 8 and learned he had interviewed for the position that day and was no longer on his interview team. Pl. Mem. 6 (citing to no record evidence). As noted by Plaintiff Coleman's application is dated June 8, 2021, the same day the interviews took place. Coleman Application and Resume, ECF No. 38-21 at 1.
G. Plaintiff files an internal grievance alleging retaliation
On June 24, 2021, Plaintiff filed a Statement of Grievance with Defendant, alleging:
The less qualified applicants of a different race were chosen over me and after my formal complaint to S.C. Human Affairs along with my outspoken opposition of SPED practices towards black students, the Director position that was available after those complaints went to a less qualified black male and in a retaliatory manner I was not chosen.June 24, 2021 Grievance, ECF No. 35-15. The District held the first level grievance meeting on July 8, 2021, and sent Plaintiff a letter on July 19, 2021 (the letter is mis-dated July 29, 2021), finding no merit to and denying the grievance. Letter, ECF No. 35-16. Plaintiff's appeal was denied by both the administration and the Board of Trustees. ECF Nos. 35-19 and 35-20. Based on a request from Plaintiff, he “received a promotion and a salary increase,” Pl. Mem. 7, when he was reassigned to an Assistant Principal position at Wilson High School. 6
Defendant references informal settlement discussions among counsel and representatives of both parties and notes that further communication took place between the parties themselves. Plaintiff objects to the introduction of information regarding the informal negotiations, asserting they are inadmissible under Federal Rule of Evidence 408. Because they are not necessary for deciding issues before the court, details of those informal negotiations need not be explored further.
II. Standard of review
A. Motions for summary judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own 7 affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002) (Title VII). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
B. Burden of proof in Title VII claims
Title VII makes it unlawful 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 of such individual's race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may demonstrate a violation of either statute through direct or circumstantial evidence. A plaintiff offers direct or indirect evidence of discrimination using “ordinary principles of proof.” Burns v. AA F-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (in ADEA context) (internal quotations omitted). Under this method, sometimes referred to as the “mixed motive” form of proof, a plaintiff will only survive summary 8 judgment if he or she “produce[s] direct evidence of a stated purpose to discriminate and/or [indirect] evidence of sufficient probative force to reflect a genuine issue of material fact.” Rhoads v. F.D.I.C., 257 F.3d 373, 391 (4th Cir. 2001) (ADA retaliation claim) (citation and quotation omitted) (alteration in original).
When direct evidence is lacking, a plaintiff may produce circumstantial evidence and proceed under the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Pursuant to this framework, once the plaintiff establishes a prima facie case of a violation of Title VII, the burden of production shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for its employment action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010). If the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason for its employment action, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[ ], but [was] a pretext.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
While intermediate evidentiary burdens shift back and forth, the ultimate burden of persuasion that the defendant engaged in intentional discrimination remains at all times with the plaintiff. See Reeves, 530 U.S. at 146-47 (“The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.'”) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). Nonetheless, in considering an employee's pretext argument, there is nothing in the “McDonnell Douglas burdenshifting framework that says ‘a plaintiff must always introduce additional, independent evidence of discrimination.'” Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 220 (4th Cir. 9 2016) (quoting Reeves, 530 U.S. at 149)). “To the extent that the evidence supporting a plaintiff's prima facie case also undermines the employer's non-retaliatory justification, that evidence may be called upon by the trier of fact in determining whether or not the proffered justification is pretextual.” Id. at 220. The court is ever mindful, too, that such inquiry is “meant only to aid courts and litigants in arranging the presentation of evidence.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515-16 (4th Cir. 2006) (quoting Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 986 (1988)).
III. Analysis
Plaintiff is pursuing Title VII claims of discrimination and retaliation related to his failure to be promoted to several positions. Defendant seeks summary judgment as to all claims. Before considering the substance of Defendant's challenge, the court examines whether certain objected-to evidence may be considered in the analysis.
Because the parties raised specific objections to certain evidence the court discusses those objections herein. This discussion notwithstanding, the undersigned notes that, even if the objected-to evidence were considered it would not impact the court's recommendation herein.
A. Objected-to evidence
1. Communications related to potential of settlement
Defendant references communications among its representatives and counsel and Plaintiff and his counsel subsequent to Plaintiff's filing of his June 24, 2021 grievance. Def. Mem. 4-5. Plaintiff submits such communications are inadmissible based on Federal Rule of Evidence 408. Further, he objects to any inference to be drawn from such discussion. Pl. Mem. 11-12. As noted in a footnote above, the court agrees with Plaintiff that information provided by Defendant concerning purported pre-suit settlement discussions is inadmissible based on Federal Rule of 10 Evidence 408. Further, the details of the discussions involving counsel are not necessary to the consideration of issues before the court.
2. Purported hearsay evidence proffered by Plaintiff
“[H]earsay evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment[.]” Md. Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1251-52 (4th Cir. 1991). By the same token, evidence “‘submitted in connection with a motion for summary judgment may contain hearsay statements that would be admissible at the trial under exceptions [or exclusions] to the hearsay rule.'” Wellin v. Farace, No. 2:16-CV-00414-DCN, 2022 WL 17811722, at *8 (D.S.C. Dec. 19, 2022) (quoting Wyant v. Burlington N. Santa Fe R.R., 210 F.Supp.2d 1263, 1275-76 (N.D. Ala. 2002) (internal citations omitted)). Defendant asserts several exhibits proffered by Plaintiff are inadmissible hearsay. Reply 2.
a) Newspaper articles
Plaintiff alleges that, since hiring Superintendent O'Malley in 2018 the District has “failed to consider, promote and compensate African American male employees in a manner equal to Caucasian employees and equal to employees who do not engage in protected activity.” Pl. Mem. 3. In support of such allegation, Plaintiff has proffered two newspaper articles. He includes a September 2020 article indicating the District provided information about the racial breakdown of students involved in virtual instruction “with no real explanation of why racial breakdown was necessary.” Pl. Mem. 3 (citing September 2020 article, ECF No. 38-3). Plaintiff also provides a February 2020 article alleging Defendant's Assistant Superintendent of Secondary Education, Kevin Hall, singled out Black students' test scores and behaviors during his tenure at a different school district. Feb. 2020 article, ECF No. 38-4. The court agrees with Defendant that these articles are inadmissible hearsay. Greene v. Scott, 637 Fed.Appx. 749, 751-52 (4th Cir. 2016) (affirming 11 district court's exclusion of newspaper article for the truth of the matter asserted; quoting Nooner v. Norris, 594 F.3d 592, 603 (8th Cir. 2010) (“Newspaper articles are rank hearsay” (internal quotation marks omitted)).
b) Plaintiff's communication with EEOC and Defendant's Personnel Director
Defendant submits Plaintiff's exhibits M and N, found at ECF Nos. 38-12 and 38-13, contain inadmissible hearsay. Reply 2. The undersigned agrees. Plaintiff identifies Exhibit M as his report to the EEOC that, in May 2020, Defendant deactivated his application after he made inquiries about a portion of his application. Pl. Mem. 5. Exhibit N is a copy of an email to Defendant's Personnel Director, Nathanial Marshall, in which he advised Defendant of this issue and other issues regarding the way he was treated by employee Ashley Watson and how his attendance record was handled. Id. Both exhibits contain hearsay and speculation on the part of Plaintiff.
c) Affidavit of Ronald Bentley Oates
Defendant seeks to exclude the “multiple hearsay” statements contained in the affidavit of Oates, a former employee of Defendant who served on the interview committee when Plaintiff applied to be Director of Rush Academy. Reply 2. Oates testified that he “clearly remember[ed] Mr. Hall stating that they are pushing for new leadership at Rush as they were going to be changing the image.” Oates Aff. 1, ECF No. 38-23. Oates noted new leadership would exclude Plaintiff, who was Assistant Director. Oates said, “It was clear that Mr. Hall favored a different candidate, and there was a fear of retaliation in not following the plan of Mr. Hall.” Id. Oates' affidavit also includes various hearsay statements he attributes to Superintendent O'Malley as well as his beliefs as to how he [Oates] has been treated by Defendant. Id. 12
The undersigned agrees that much of the information contained in Oates' affidavit is inadmissible hearsay or improper speculation. He cannot testify as to what another person said. He can, however, testify as to his being on the interview committee and his feelings when on that committee.
3. SCHAC Investigator's interview
Defendant also seeks to exclude as “hearsay within hearsay” the interview notes made by Martin Samuels, SCHAC Investigator, when interviewing two witnesses, Dr. Nikia Burks and Myron Frieson. Pl. Ex. AA, ECF No. 38-26. The court agrees. The investigator's notes include questions from Samuels and notes as to how the witnesses responded. This is classic inadmissible hearsay in this format.
4. Statistical evidence proffered by Plaintiff
Defendant also objects to Plaintiff's reliance on raw statistical data contained in several documents. In addition to the already-discussed-and-excluded newspaper articles, Plaintiff has proffered several documents concerning the racial makeup of Defendant's leadership, officers and staff under Superintendent O'Malley. Pl. Mem. 3. These documents include the following:
• Pl. Exhibit A, pages 5-6 of Florence 1 Schools Handbook, in which check marks have been placed beside the names of three out of the nine members of the Board of Trustees, ECF No. 38 at 1, and beside two of the 10 listed members of the Administration, ECF No. 38 at 2. In his brief, Plaintiff seems to indicate the check marks indicate which of the members of the Board of Trustees and the Administration were Black.
• Pl. Exhibit B, 2020 Administrative Office Summary, which includes a six-page spreadsheet with various employee names, job descriptions, and race. ECF No. 381. Plaintiff indicates this demonstrates Defendant's “Administrative officers and staff is predominately Caucasian.” Pl. Mem. 3.
• Pl. Exhibit C, 2019 Administrator Summary, which indicates “Florence One individual school leadership appeared to consist of about 77 employees in administration, and only 12 were black males,” Pl. Mem. 3, Ex. C, ECF No. 38-2.13
Citing Carter v. Ball, 33 F.3d 450 (4th Cir. 1994), Defendant submits this “statistical” evidence should be excluded because it lacks a proper foundation and, more fundamentally, Carter counsels that, “[i]n a case of discrimination in hiring or promoting, the relevant comparison is between the percentage of minority employees and the percentage of potential minority applicants in the qualified labor pool.” Reply 2-3 (quoting Carter, 33 F.3d at 456). The court agrees with Defendant that the raw data regarding racial composition of Defendant's administration is not itself relevant to Plaintiff's racial discrimination claims. As noted in Carter, “the mere absence of minority employees in upper-level positions does not suffice to prove a prima facie case of discrimination without a comparison to the relevant labor pool.” Carter, 33 F.3d at 456. Carter continued, “[m]oreover, if a plaintiff offers a statistical comparison without expert testimony as to methodology or relevance to plaintiff's claim, a judge may be justified in excluding the evidence.” Id. at 457. The Carter court upheld the district court's exclusion of the plaintiff's statistical evidence purporting to show that no Blacks had been chosen for certain positions, noting there had been “no proffer of supporting evidence relating to the pool of African-Americans qualified for these positions.” Id.
Here, the court ought not consider the statistical evidence proffered by Plaintiff. A general race-based census of employees, without supporting evidence concerning the pool of those qualified for the positions, does not provide a meaningful comparison. Cf. Christian v. S.C. Dep't of Lab., Licensing, & Regul., No. 3:12-CV-1382-TLW, 2014 WL 4954681, at *12 (D.S.C. Sept. 26, 2014) (noting “statistics without context” are unhelpful), aff'd, 651 Fed.Appx. 158 (4th Cir. 2016).
5. Pattern or practice evidence 14
Defendant also seeks exclusion of evidence Plaintiff claims demonstrate a “pattern and practice” of racial discrimination. Reply 4-8 (indicating its objection to the “pattern and practice evidence of racial discrimination” found at pages 9-10 of Plaintiff's memorandum).
As the court noted in considering Defendant's earlier Motion to Dismiss/Motion to Strike, a plaintiff may use “evidence of a pattern and practice of discrimination to establish a prima facie case” of discrimination. ECF No. 31 at 6 (citing Demuren v. Old Dominion Univ., 33 F.Supp.2d 469, 479-80 (E.D. Va. 1999) (citing Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 760-61 (4th Cir. 1998)). In considering the Motion to Strike certain allegations from Plaintiff's pleading, the court noted Plaintiff was permitted to make averments of a pattern or practice of discrimination. Id. At this juncture, however, Plaintiff must provide otherwise admissible evidence of any such pattern or practice. This he has not done. Rather, in claiming he has set out a pattern and practice of discrimination, Plaintiff generally argues that, subsequent to the 2018 end of desegregation litigation that had begun in 1970, Superintendent O'Malley arrived and “black males were [then] treated less favorably than Caucasian employees.” Pl. Mem. 9. His only support of this assertion includes his own unanswered email to O'Malley, the already-discussed-and-excluded notes of interviews with Dr. Burks and Mr. Frieson and the affidavit of Mr. Oates, and the unsubstantiated argument that the transfer of Mr. Jeffrey Gaines to Southside Middle School was a “demotion” (ECF No. 38-27 at 2 notes Gaines' reassignment without any indication it was a demotion). Such speculative evidence is inadmissible at the summary judgment stage.
B. Title VII claims
Both parties analyze all of Plaintiff's claims using the McDonnell Douglas burden-shifting paradigm. Plaintiff also includes a brief alternative argument that he can prevail using direct 15 evidence, also referred to as the mixed-motive method of proof. Pl. Mem. 25-26. The court first considers the parties' arguments using the burden-shifting framework.
1. Plaintiff's discriminatory failure-to-promote claims
a) Prima facie case analysis
To establish a prima facie case of discrimination in the failure-to-promote context, Plaintiff must demonstrate the following: (1) he is a member of a protected class; (2) he applied for a specific position for which he was qualified; and (3) his non-selection occurred under circumstances giving rise to an inference of discrimination. See Williams v. Giant Food Inc., 370 F.3d 423, 430 (4th Cir. 2004). As recently noted in this court, “[e]vidence that the position was filled with an applicant outside Plaintiff's protected classes is sufficient to give rise to an inference of discrimination.” Denis v. Horry Cnty. Police Dep't, No. 4:20-CV-3849-JD-TER, 2022 WL 4181042, at *6 (D.S.C. June 28, 2022) (citing Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1129 (4th Cir. 1995) (citing Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994)), report and recommendation adopted sub nom. Denis v. Horry Cnty. Police Dep't., No. 4:20-CV-3849-JD, 2022 WL 3357883 (D.S.C. Aug. 15, 2022). Defendant argues the final prong is satisfied only when the position is awarded to one outside the protected class who is also less qualified for the position than Plaintiff. Def. Mem. 7 (citing Saulsberry v. Savannah River Remediation, LLC, C. A. No. 1:16-cv-02792-JMC, 2019 WL 3711978, *8 (D.S.C. Aug. 7, 2019)). It is true that, in Saulsberry, then-District Judge Childs considered the relative qualifications of the plaintiff and those hired at the prima facie stage. 2019 WL 3711978, at *8 (citing EEOC v. Sears Roebuck and Co., 243 F.3d 846, 851-52 (4th Cir. 2001)). However, cases decided subsequent to Sears regularly have considered issues of relative qualifications at the pretext stage of the analysis. See, e.g., Matias v. Elon Univ., 780 Fed.Appx. 28, 30-31 (4th Cir. 2019); Barnes v. Charles Cnty. Pub. Sch., 16 747 Fed.Appx. 115, 117-18 (4th Cir. 2018) (noting an employee may establish pretext by demonstrating he was better qualified for the position at issue). Cf. Greene-Winchester v. Georgetown Cnty. Sch. Dist., No. 220CV03830BHHMHC, 2022 WL 4181000, at *7 (D.S.C. July 12, 2022) (similarly deferring employer's arguments regarding relative qualifications and how they are judged to the pretext phase of analysis), report and recommendation adopted, No. 2:20-CV-3830-BHH, 2022 WL 3754731 (D.S.C. Aug. 30, 2022).
Here, Defendant concedes Plaintiff can satisfy the first two prongs of his prima facie case but asserts he cannot establish an inference of discrimination sufficient to satisfy the final prong as to the Moore or SFHS positionsbecause he cannot show they were filled by one “less qualified” than he. Because Defendant does not contest Plaintiff was qualified for these positions and because they both were filled by White females, the undersigned finds Plaintiff has established an “inference of discrimination,” and, therefore, a prima facie case as to the Moore and SFHS positions.
Any general reference to the “SFHS position” concerns the assistant principal listing posted in June 2020 unless otherwise specifically discussing the transfer of Humber to a different SFHS assistant principal position.
Plaintiff is also pursuing a failure-to-promote claim as to the August 2020 transfer of White male Humber to an unposted position at SFHS. Plaintiff complains that the position was not posted and he wrongly was not considered for it. Defendant has explained that Humber was involuntarily transferred to a position at the time Humber's position at another school was being eliminated. Def. Position Stmt. 3, ECF No. 38-18. Plaintiff submits that Rush Academy, too, was “suffering in the pandemic” but he still was not considered for the position. Pl. Mem. 15. Unlike the undisputed evidence concerning the situation at Humber's prior school, the Career Center, there is no evidence that Plaintiff's position at Rush Academy was about to be eliminated. The undersigned 17 is not convinced that Plaintiff has demonstrated an inference of discrimination as to the transfer of Humber. This recommendation is not changed by Plaintiff's allegation that Watson deactivated his application or applications. As noted above, this allegation is based only on speculation and is not supported by competent evidence.
In summary, the undersigned recommends a finding that Plaintiff has satisfied his prima facie case as to the Moore and SFHS positions for which he applied. He has not satisfied his prima facie burden as to his claim concerning the unposted SFHS position to which Humber was transferred in 2020.
Plaintiff's claim regarding the position of Rush Academy Director is analyzed in discussing his retaliation claim below. The parties' briefs do not focus on this position as being part of Plaintiff's Title VII discrimination claim. To the extent Plaintiff is pursuing such a claim, the undersigned is of the opinion Plaintiff has not set out evidence sufficient to satisfy his prima facie case as to that claim because he has not set out an inference of discrimination as to the hiring of Coleman, another Black male, to that Director position.
b) Pretext analysis as to the Moore and SFHS positions
Satisfied that Plaintiff has established his non-onerous burden of demonstrating a prima facie case to two claims-the Moore position and the June 2020 SFHS position-the court continues the analysis. Burdine, 450 U.S. at 253 (noting non-onerous nature of establishing prima facie case). Defendant must now “respond with evidence that it acted on a legitimate, non-discriminatory basis.” Worden v. SunTrust Banks, Inc., 549 F.3d 334, 341 (4th Cir. 2008). “If the defendant does so, the plaintiff is then obligated to present evidence to prove that the defendant's articulated reasons were pretext for unlawful discrimination.” Id. “A plaintiff alleging a failure to promote can prove pretext by showing that he was better qualified, or by amassing circumstantial evidence that otherwise undermines the credibility of the employer's stated reasons.” Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 259 (4th Cir. 2006). 18
In moving for summary judgment, Defendant indicates its nondiscriminatory reason for not placing Plaintiff in the Moore position is because successful candidate Leroy had experience that translated well to the position. Superintendent O'Malley pointed to Leroy's experience in the grades that would be transitioning at Moore and her strength in curriculum and instruction as factors that weighed in Leroy's favor. See Def. Mem. 10, O'Malley Dep. 32-33. As to the June 2020 position at SFHS, Defendant provided the affidavit of SFHS Principal Josey who explained that the position had been posted in early June 2020, the panel had interviewed five candidates by June 22, and had offered Bown the position on June 23-two days before Plaintiff's June 25, 2020 application-date. Def. Mem. 10; Josey Aff. ¶¶ 2-7.
The undersigned finds Defendant has met its burden of production of providing legitimate, nondiscriminatory reasons for the hiring of other candidates. In so finding, the court notes this is a burden of production, not persuasion. Reeves, 530 U.S. at 142. An employer's choosing a candidate based on that candidate's relative qualifications is certainly a valid, nondiscriminatory reason for a hiring choice. Evans v. Techs. Applications & Service, Co., 80 F.3d 954, 960 (4th Cir. 1996). Similarly appropriate is declining to promote Plaintiff because the position had been filled by the time he applied. The court notes Plaintiff makes several arguments against the relative qualifications of Leroy and about another reason given to the EEOC as to why Plaintiff was not chosen at SFHS. Those arguments are more appropriately considered in relation to Plaintiff's pretext argument. The analysis continues as to the Moore Middle School and the SFHS positions.
The burden now shifts “back to the plaintiff to prove by a preponderance of the evidence that the stated reason for the adverse employment action is a pretext and that the true reason is discriminatory.” Guessous, 828 F.3d at 2016. To “establish that an employer's proffered reason for the challenged action is pretext for discrimination, the plaintiff must prove both that the reason 19 was false, and that discrimination was the real reason for the challenged conduct.” DeJarnette v. Corning Inc., 133 F.3d 293, 298 (4th Cir. 1998) (internal quotation marks omitted). The court considers Plaintiff's pretext arguments as to the two positions still at issue.
(1) Moore Middle School Principal Position: pretext
As the Fourth Circuit has noted,
“A plaintiff alleging a failure to promote can prove pretext by showing that [she] was better qualified, or by amassing circumstantial evidence that otherwise undermines the credibility of the employer's stated reasons.” Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 259 (4th Cir. 2006). “We assess relative job qualifications based on the criteria that the employer has established as relevant to the position in question.” Id. The plaintiff need not have been the better-qualified candidate for the position, but must show “evidence which indicates that [the employer's] stated reasons for promoting [the other candidate] were a pretext for discrimination.” Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 269 (4th Cir. 2005). However, a plaintiff “cannot establish pretext by relying on criteria of her choosing when the employer based its decision on other grounds.” Id. at 271.Russell v. Harlow, 771 Fed.Appx. 206, 207 (4th Cir. 2019).
Here, Plaintiff compares his qualifications to those of successful-candidate Leroy, arguing Leroy had only a Master's degree (while he had a doctorate) and most of her prior experience had been at the elementary school level (while his had not). Pl. Mem. 14, Leroy Resume, ECF No. 386. Plaintiff submits that the middle school at which Leroy had worked had experienced “problems under her leadership.” Pl. Mem. 14; see Sneed Report Card, ECF No. 38-7.
Defendant responds by pointing to Superintendent O'Malley's testimony that principal and assistant principal positions at different schools require different skill sets depending on the unique circumstances of the schools. O'Malley Dep. 33. O'Malley explained that Leroy's skill set was more suited to the transition to include different grades that was taking place at Moore.
As pointed out by Defendant, only if a plaintiff makes a strong showing that his qualifications are “demonstrably superior” may he provide evidence that may show pretext. Def. 20 Mem. 11 (citing Heiko, 434 F.3d at 261-62). Here, Plaintiff has not made a showing that his qualifications were “demonstrably superior” to Leroy's. Defendant's determination that Leroy's qualifications were more suited to the position are subject to deference. When “a plaintiff asserts job qualifications that are similar or only slightly superior to those of the person eventually selected, the promotion decision remains vested in the sound business judgment of the employer.” Heiko, 434 F.3d at 261. Plaintiff has not established pretext in this way.
To the extent Plaintiff attempts to ascribe pretext to Defendant's statements in the EEOC Position Statement that O'Malley had worked with Leroy before and was impressed with her abilities and that Plaintiff's experience was “very different” from Leroy's, such statements are not materially inconsistent with those set out in Defendant's Motion. While material inconsistencies are probative of pretext, “minor discrepancies or elaborative discussion will not suffice-a plaintiff must point to actual conflicting explanations which relate to the core substance of the employer's articulated justification.” Propst v. HWS Co., Inc., 148 F.Supp.3d 506, 528 (W.D. N.C. 2015).
Plaintiff also seems to suggest that the fact that Superintendent O'Malley had not responded to an email from Plaintiff in which he had expressed an interest in meeting him, juxtaposed with the Position Statement's indication that O'Malley had worked with Leroy is somehow indicative of pretext. Pl. Mem. 20. Plaintiff offers no case law to suggest the mere failure of a superintendent to respond to an email could be considered pretext under these or similar facts. That argument is unavailing.
Finally, Plaintiff's suppositions regarding his treatment by Defendant's employee Watson and her allegedly removing his application from the system are inadmissible supposition. In any event, they offer no indication of pretext. 21
Plaintiff has not set out evidence of pretext as to his not having been selected for the Moore Middle School Principal position. Summary judgment is appropriate as to that portion of his Title VII discrimination claim.
(2) SFHS Assistant Principal Position: pretext
Plaintiff submits he has set out evidence that Defendant's stated reason for not hiring him for this position-because he applied several days after interviews had taken place and the position had been filled by Bown-is pretextual based primarily on the inconsistent reasons given for his nonselection to be interviewed or hired. Pl. Mem. 21-22. Plaintiff also provides Bown's resume and briefly argues that Bown, a “former instructional coach with less credentials and education than Plaintiff,” was less qualified than he for the SFHS assistant principal position. Pl. Mem. 14; Bown Resume, ECF No. 38-21.
Although Defendant has compared the relative qualifications of Plaintiff with the other successful candidates for the other positions at issue in this litigation, nowhere in its briefs does Defendant discuss or compare the relative qualifications of Bown and Plaintiff. Rather, Defendant submits Plaintiff was not interviewed for or chosen for that position because he did not apply until after interviews had taken place and the position had been offered to Bown. See Def. Mem. 3, 9, 10, 11; Shand Aff. ¶¶ 2-7.
As noted by Plaintiff, however, Defendant's Position Statement submitted to the EEOC after Plaintiff filed his November 2020 Charge does not mention the tardiness of Plaintiff's application, nor does it otherwise reference the timing of Plaintiff's application vis a vis the timing of the application of Bown or other candidates. Position Statement, ECF No. 38-18. Rather, the Position Statement provides the following explanation for Plaintiff's not having been chosen for an interview for the position: 22
In June 2020, Dr. George applied for the position of Assistant Principal at [SFHS]. Based on the needs of that administrative team, the focus for this assistant principal was curriculum and instruction. The school principal recommends to the superintendent the individual who best meets the needs of the students and instructional program. The position was posted, and 19 applicants applied and held the correct certification for the position. Principal Shand Josey (white female) and her team of Mr. Gregory Dukes (Assistant Principal, black male) and Ms. Shemeika Nero (Assistant Principal, black female) interviewed the four strongest candidates: K. Cranford, J. Bown, J. Goff, and S. Davis. These candidates were granted interviews based on their knowledge of high school curriculum, proficiency with master scheduling in PowerSchool (which is [] very important), and an ability to provide instructional coaching and professional development to teachers. Dr. George did not have the requisite skill set needed to fill the instructional assistant principal position and thus, he was not interviewed.
All candidates interviewed were asked the same questions and were scored on a 14 scale based on their answers. J. Bown was unanimously selected by the interview team based on her previous experience as a curriculum coach in a high school setting; experience with coaching teams of teachers; innovative ideas for building school culture; her certificate in Restorative Justice; her knowledge of mathematics standards and curriculum and her leadership experience.Position Statement 2-3, ECF No. 38-18 (emphasis added).
Plaintiff can demonstrate pretext when he is able to demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[ ], but [was] a pretext.” Burdine, 450 U.S. at 253. In addition to a demonstration of untruth, the Fourth Circuit has noted that a different explanation for an adverse action, provided at different times, is “in and of itself, probative of pretext.” Sears, 243 F.3d at 852-53. This inference can be drawn not only when an employer provides different explanations at different times, but also when the explanations appear inconsistent. Fox v. Leland Volunteer Fire/Rescue Dep't, Inc., 648 Fed.Appx. 290, 294 (4th Cir. 2016).
Here, Plaintiff submits that the inconsistent reasons provided to the EEOC in December 2020 and the reasons proffered in this litigation are enough to suggest pretext and require that summary judgment be denied. 23
On reply, Defendant again highlights Josey's affidavit testimony that Plaintiff applied too late to be considered for the SFHS position at issue. Reply 7. Defendant also indicates Plaintiff himself told the EEOC investigator on June 26, 2020 that he had applied late in the process; the EEOC investigator's notations also indicate that the system shows that the position had been filled at the time Plaintiff submitted his application. EEOC Investigator's Notes, ECF No. 41-5. Defendant further points out there is no question that Plaintiff's application was not submitted until June 26, 2022, after the position had been filled. Reply 7-8. Defendant does not squarely address the inconsistent reasons given for Plaintiff's not having been interviewed/selected. Rather, in a footnote, Defendant obliquely submits that the Position Statement's assertion that Plaintiff lacked the requisite skill set to be interviewed for the position is “not inconsistent with the fact that he was not interviewed because of the lateness of his application. Both are true.” Reply 8 n.8. Defendant makes no effort to explain how the lacking-skill-set reason is true. In fact, Defendant closes the footnoted argument by doubling down on its untimeliness argument first proffered to the court in support of summary judgment. Id. (“But, most importantly, Ms. Bown was offered the position on June 23, 2020, and Plaintiff did not apply until June 25, 2020.)
As discussed above, not all statements to an EEOC investigator will constitute competent evidence. Regardless of whether these notes are considered, the undersigned's recommendation remains the same.
Construing all evidence in the light most favorable to Plaintiff, the undersigned recommends a finding that Plaintiff has provided sufficient evidence of pretext to survive summary judgment as to the failure to promote claim related to the June 2020 SFHS Assistant Principal position. Defendant, through counsel, provided the EEOC with a detailed analysis of Bown's qualifications as support for its assertion that Plaintiff “did not have the requisite skill set needed to fulfill the instructional assistant principal position and thus, he was not interviewed.” Position 24 Statement 2. Two-and-a-half years later, however, Defendant claims entitlement to summary judgment based on testimony that Plaintiff was not interviewed for that position because his application was not received until after the position had been filled. Either explanation would be nondiscriminatory, but Defendant's decidedly distinct reasons given for failing to even interview Plaintiff for the position provides some evidence of pretext. See, e.g., McFadden v. Stahl Crane Sys., Inc., No. 2:13-CV-03039-DCN, 2017 WL 1190870, at *9-10 (D.S.C. Mar. 31, 2017) (denying summary judgment as to discrimination claim when reason given to EEOC for adverse action was inconsistent with reason provided in court filings). While it may (or may not) be true that Bown's qualifications were a better fit for the position, the disconnect between Defendant's positions then and now relates to why they did not interview Plaintiff for the position. Was it because his application was submitted too late? Or, was it because, after review of qualifications, it was determined he did not “make the cut” to be interviewed? The former is relied on in seeking summary judgment. The latter is what Defendant told the EEOC in 2020. The change of the reason suggests pretext.
As Judge Norton noted in McFadden, inconsistent explanations may be overlooked when “the inconsistency has its own legitimate explanation[.]” Id. (citing Holland v. Washington Homes, Inc., 487 F.3d 208, 216 (4th Cir. 2007) (finding inconsistency between employer's stated reason for terminating plaintiff and the reason reported to state employment agency was evidence of “charity on the company's part”-not pretext-where employer presented evidence that the inaccurate report was intended to allow plaintiff to access retirement and unemployment benefits)). Here, Defendant has offered no such explanation. Defendant may well have considered Plaintiff's qualifications unsuited for him to be interviewed for the position. He also may have applied too late. The timing of his application's receipt was known (or knowable) in December 2020. That 25 Defendant has now, without explanation, abandoned the qualifications-based argument in favor of the different-and not necessarily reconcilable-timing-based reason is what causes pretext to exist.
Ultimately, when the facts are viewed in the light most favorable to Plaintiff, a reasonable juror could find that Defendant offered an explanation for its actions that conflicted with the record and with its own subsequent explanation. It is not for the court to consider at this time what Defendant may have stood to gain by this change in explanation. To be sure, it is far from a given that a fact-finder would determine Plaintiff was not interviewed or selected for the SFHS position based on his race or gender. Nonetheless, the undersigned finds that, on the record and argument before the court, Plaintiff has set forth evidence sufficient to survive summary judgment. See Wilson v. Genesis Healthcare, Inc., No. 4:17-CV-3318-RBH-TER, 2019 WL 3208842, at *6 (D.S.C. July 1, 2019) (recommending denial of summary judgment when the reason given in defendant's response to employee's EEOC charge differs from the reason set forth in litigation, noting that such inconsistent post-hoc explanations for its employment decisions can be probative of pretext); report and recommendation adopted, No. 4:17-CV-03318-RBH, 2019 WL 3207510 (D.S.C. July 16, 2019).
2. Plaintiff's claim of retaliatory failure to promote to head of Rush Academy
Plaintiff filed an EEOC Charge related to the above-discussed failure-to-promote claims on November 9, 2020. In June 2021 he applied to be the Director of Rush Academy. Plaintiff claims his nonselection for the position was in retaliation to his filing the November 2020 Charge. The Director position was awarded to Coleman, also a Black male.
To establish a prima facie case of retaliation under the McDonnell Douglas approach, Plaintiff must demonstrate: “‘(1) []he engaged in a protected activity, (2) the employer acted 26 adversely against h[im], and (3) there was a causal connection between the protected activity and the asserted adverse action.'” Walton v. Harker, 33 F.4th 165, 177 (4th Cir. 2022) (quoting Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (alteration made by the undersigned).
Defendant seeks summary judgment as to this claim, arguing Plaintiff is unable to set forth the third element-a causal connection between Plaintiff's protected activity and his not being promoted to the Rush Academy Director position. Def. Mem. 12-13. Defendant notes Plaintiff has proffered no evidence that anyone on the interview panel for the Rush Academy Director position was aware of Plaintiff s EEOC activity. As noted by Defendant, “by definition, an employer cannot take action because of a factor of which it is unaware, the employer's knowledge that the plaintiff engaged in a protected activity is absolutely necessary to establish the third element of the prima facie case.” Dowe v. Total Action Against Poverty, 145 F.3d 653, 657 (4th Cir. 1998). More particularly, it is the relevant decisionmaker who must have knowledge of the protected activity. Id.; see also Roberts v. Glenn Indust. Grp., Inc., 998 F.3d 111, 124 (4th Cir. 2021) (“In this Circuit, we have consistently required proof of a decisionmaker's knowledge of protected activity to support a Title VII retaliation claim.”). Defendant indicates that, while Superintendent O'Malley has the authority to make hiring decisions, he relies on his interview committee's recommendations and did so in this case. O'Malley Dep. 44-45. Here, the interview committee was comprised of Assistant Superintendent Greg Hall, Precious Wymbs, Lisa Spears, and Ronald Oates. Hall Dep. 20-22. Hall testified that he never knew about Plaintiff's charge of discrimination. Hall Dep. 32-33. Plaintiff has pointed to no record evidence that any other member of the committee was aware of his Charge. In fact, Plaintiff does not specifically address this portion of Defendant's argument. Although Plaintiff proffered the affidavit of committee member Oates as 27 to that interview process, ECF No. 38-23, nowhere in that affidavit does Oates indicate he was made aware of Plaintiff's protected activity.
The lack of evidence that any member of the interview committee was aware of Plaintiff's EEOC Charge, on its own, might be considered fatal to Plaintiff's prima facie claim. Without knowledge of the activity, causation is not possible. Dowe, 145 F.3d at 657. The analysis of Plaintiff's retaliation claim could be ended here. Nonetheless, the undersigned considers Plaintiff's additional causation-related arguments.
Plaintiff submits causation can be inferred based on the temporal proximity between the protected activity and the adverse action. Pl. Mem. 17-18. As the Dowe court noted, “evidence that [an] alleged adverse action occurred shortly after the employer became aware of the protected activity is sufficient to “satisf[y] the less onerous burden of making a prima facie case of causa[tion].” Dowe, 145 F.3d at 653 (emphasis in original) (quoting Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989)). “[T]he passage of time alone cannot provide proof of causation unless the ‘temporal proximity between an employer's knowledge of protected activity and an adverse employment action' was ‘very close.'” Pascual v. Lowe's Home Centers, Inc., 193 Fed.Appx. 229, 233 (4th Cir. 2006) (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam)).
While Plaintiff acknowledges he filed his Charge on November 9, 2020, he looks to May 28, 2021-the date of the EEOC's RTS Letter-as the date with which to compare the adverse action for purposes of showing temporal proximity sufficient to allow an inference of causation. Pl. Mem. 17-18. Using that date, Plaintiff submits the one month timeframe between the RTS 28 Letter's issue and the June 2021adverse action to establish causation. The court acknowledges that in some cases a one-month lapse of time may allow a causal inference. However, Plaintiff's focus on the May 28, 2021 date is misplaced. The case law is clear that the relevant date is the date the employer became aware of the protected activity. Dowe, 145 F.3d at 653. As noted above, it is far from a given that any relevant decisionmaker ever had awareness of Plaintiff's EEOC Charge. As a practical matter, however, it is not realistic to infer that Defendant first became aware of the Charge on the date the EEOC dismissed it and gave Plaintiff the right to sue. Defense counsel submitted the Position Statement to the EEOC on December 29, 2020. Construing all dates in Plaintiff's favor, at the very latest, Defendant was aware of the Charge by the end of December 2020. This six-month lapse between knowledge of activity and the adverse action typically would not be sufficient to allow an inference of causation. See Pascual, 193 Fed.Appx. at 233 (finding a span of “at least three to four months” was “too long to establish a causal connection by temporal proximity alone.”). In Roberts, the Fourth Circuit acknowledged there was not a “‘bright-line rule' for temporal proximity,” but collected cases in which lapses shorter than three months were insufficient. Roberts, 998 F.3d at 128. The undersigned is of the opinion Plaintiff cannot establish the third prong of his prima facie case based on temporal proximity.
The exact date Plaintiff was advised he did not get the Director position is not referenced in the record. It would have been sometime between June 8, 2021 (when interviews took place) and June 24, 2021, when Plaintiff filed an internal grievance.
Plaintiff also submits he has established a causal link based on the course of conduct. Pl. Mem. 18-19 (citing, inter alia, Lettieri v. Equant, Inc., 478 F.3d 640, 650 (4th Cir. 2007)). Plaintiff looks to the affidavit of interview committee member Oates who indicated he felt influenced to choose different leadership. Oates Aff 1 (indicating his understanding that Hall favored a candidate other than Plaintiff). As noted above, not all of Oates' proffered testimony is admissible. 29
Nonetheless, to the extent Oates' testimony is considered, preselection of a candidate is not violative of Title VII. See Anderson, 406 F.3d at 271 (holding that preselection of an employee for a promotion is not sufficient evidence for a reasonable jury to conclude that defendants' explanation was pretext for discrimination). While preselection may establish that an employee was “unfairly treated, it does not by itself prove racial discrimination.” Anderson, 406 F.3d at 271 (quoting Blue v. United States Dep't of the Army, 914 F.2d 525, 541 (4th Cir.1990)).
Plaintiff also looks to the fact that it seems Coleman initially was to be on the interview panel but ended up applying on June 8, the same day as the interviews. Plaintiff submits that this “behavior that is not typical” is sufficient to require an inference of causation. Pl. Mem. 18 (citing Smith v. BHSHosp. Servs. Inc., No. 20-CV-1062, 2022 U.S. Dist. LEXIS 116594, at *31-32, 2022 WL 2344156, at *10 (D. Md. June 29, 2022)). Again, even if Coleman was handpicked and interviewed at the last minute, such preselection is not unlawful and does not indicate potentially retaliatory behavior. In Smith, the “atypical behavior” was quite different. There, the employee attempted to establish a causal link based on evidence that her “supervisors responded with hostility when discussing her race discrimination complaints.” 2022 WL 2344156, at 10. Those responses included a supervisor's comments during a performance review that the discrimination allegations were false. Id. Here, Plaintiff has pointed to no such behavior as to his protected activity or otherwise. At best, Plaintiff has pointed to actions that suggest Coleman was the chosen candidate. This is not impermissible. Plaintiff has not established a causal link in this way.
Because Plaintiff is unable to provide evidence from which a causal link may be inferred between his protected activity and his not being selected as the Rush Academy Director, he cannot establish a prima facie claim of retaliation. No further analysis of this claim is necessary. 30
Even if a prima facie case were to be assumed, Defendant has set out a legitimate, nondiscriminatory reason for not hiring Plaintiff: his interview scores were lower than those of other candidates, including successful candidate Coleman. Interview Scoring Sheet, ECF No. 3514 (indicating Plaintiff's total score was 35, whereas Coleman's was 60 and other unsuccessful candidates' scores were 56 and 50). Plaintiff has presented no competent evidence sufficient to establish pretext as to his nonselection for the Director position. As discussed above, Plaintiff's proffered statistical and “pattern and practice” evidence is without proper context or is otherwise inadmissible. Even if considered, it does not establish pretext as to the retaliation claim or to the discrimination claims. Christian, 2014 WL 4954681, at *12 (noting “statistics without context are insufficient to show pretext”). Defendant's Motion for Summary Judgment should be granted as to the retaliation claim.
3. Mixed motive
While most of Plaintiff's opposition focuses on the McDonnell Douglas proof format, he briefly argues in closing that he has provided “Direct or circumstantial evidence that creates a genuine issue of material fact as to whether an impermissible factor such as race solely or partially motivated the employer's adverse employment decision.” Pl. Mem. 25. Plaintiff refers generally to his earlier arguments regarding pretext and to his statistical and pattern and practice evidence. Id. As discussed above, the statistical and pattern and practice evidence will not be considered herein. Further, nothing Plaintiff discusses in his pretext arguments-including the change in the reasons given for his not being interviewed for the SFHS position-provides the direct or circumstantial evidence needed under the direct evidence/mixed-motive framework. As the Fourth Circuit recently reiterated, “[d]irect evidence “is evidence which, if believed, would prove the existence of a fact without any inference or presumptions.” Walton, 33 F.4th at 176 (quoting 31 O'Connor v. Consol. Coin Caterers Corp., 56 F.3d 542, 548 (4th Cir. 1995) (cleaned up), O'Connor rev'd on other grounds, 517 U.S. 308 (1996)). Direct evidence involves “evidence of conduct or statements that reflect the alleged discriminatory attitude and that bear directly on the contested employment decision.” Walton, 33 F.4th at 177 (citing Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir. 1982)).
Plaintiff has not set out direct or circumstantial evidence sufficient to survive summary judgment based on the direct evidence/mixed motive framework.
IV. Conclusion and Recommendation
For the reasons set forth herein, it is recommended that Defendant's Motion for Summary Judgment, ECF No. 35, be granted in part and denied in part. Summary judgment is appropriate as to Plaintiff's Title VII retaliation claim and the bulk of his Title VII discrimination claim. It is recommended, however, that the Motion be denied as to Plaintiff's Title VII discrimination claim based on his June 2020 application for an assistant principal position at South Florence High School. Should the United States District Judge adopt this Report and Recommendation in full, only that claim would go to trial.
This matter need no longer be referred to the undersigned for pretrial handling.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.” 32