Opinion
Civil Action 1:20-cv-03469-WJM-SKC
07-12-2022
LESLIE SHANNON, Plaintiff, v. CHERRY CREEK SCHOOL DISTRICT, DARLA THOMPSON, SCOTT SIEGFRIED, KEVIN WATANABE, CHERRY CREEK SCHOOL DISTRICT BOARD OF EDUCATION, and TY VALENTINE, Defendants.
RECOMMENDATION REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DKT. 75]
S. KATO CREWS, UNITED STATES MAGISTRATE JUDGE
This recommendation addresses Defendants' Motion for Summary Judgment (“Motion”) [Dkt. 75.] District Judge Martinez referred the Motion to the Magistrate Judge. [Dkt.76.] The Court has reviewed the Motion, related briefing, and the entire record. No hearing is necessary. For the reasons stated below, the Court recommends the Motion be GRANTED.
The issues raised by the Motion are fully briefed, obviating the need for a hearing. Geear v. Boulder Cmty. Hosp., 844 F.2d 764, 766 (10th Cir. 1988) (any hearing requirement for summary judgment motions is satisfied by the court's review of the briefs and supporting materials submitted by the parties).
A. JURISDICTION
The Court has jurisdiction over this case under 28 U.S.C. § 1331 (federal question).
B. STANDARD OF REVIEW
The purpose of a summary judgment motion is to assess whether a trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is appropriate “when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the “responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, then the nonmoving party must identify material facts showing there is a genuine dispute for trial. Id. at 324. A fact is “material” if it has the potential to affect the outcome of a dispute under applicable law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). An issue is “genuine” if a rational trier of fact could find for the nonmoving party on the evidence presented. Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).
In performing this analysis, the factual record and any reasonable inferences therefrom are construed in the light most favorable to the nonmoving party. Id. A mere “scintilla of evidence,” however, is insufficient to avoid summary judgment. Turner v. Public Service Co. of Colorado, 563 F.3d 1136, 1142 (10th Cir. 2009). And conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir. 1999), cert. denied, 528 U.S. 933 (1999); Nutting v. RAM Southwest, Inc., 106 F.Supp.2d 1121, 1123 (D. Colo. 2000). Instead, a nonmovant “must proffer facts such that a reasonable jury could find in her favor.” Rice, 166 F.3d at 1092.
A nonmovant who bears the burden of persuasion at trial may not simply rest upon their pleadings. They must go beyond the pleadings and identify specific facts, supported by admissible evidence in the event of trial, from which a reasonable jury could find for the nonmovant. Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1197 (10th Cir. 2000). To accomplish this, the nonmovant must identify facts with reference to affidavits, deposition transcripts, or exhibits incorporated therein. Id.
Because Plaintiff is not an attorney the Court construes her filings and related submissions liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Despite this liberal construction, the Court may not construct arguments or legal theories for her in the absence of any reference to those issues in her filings. Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990).
C. BACKGROUND
Leslie Shannon is a Black female educator. [Dkt. 63, p.2.] She has dual masters' degrees in elementary and special education and has spent 18 years working in Title I schools in New York, Florida, and Colorado. [Id.] Most recently she was employed as a Science, Technology, Engineering, and Math (“STEM”) instructor at Highline Elementary (“Highline”) in the Cherry Creek School District (“District”). [Id.] This matter arises out of the District's non-renewal of her teaching contract at the end of the 2018 - 2019 academic year. [See generally, Dkt. 36.]
Plaintiff brings three claims for relief. First, she claims she was subjected to discrimination and a hostile work environment because of Highline's equity training programs. [Id.] Second, she claims Defendants wrongfully terminated her employment and defamed her character in retaliation for her complaints over the training. [Id.] Third, she alleges retaliation, defamation of character, and tortious interference based on an employment reference Highland's principal, Darla Thompson (“Thompson”), provided to a prospective employer of Plaintiff. [Id.]
Plaintiff brings her discrimination and retaliation claims under Title VII. She also brings a Section 1981 claim (by way of Section 1983) based on post-contract formation discrimination and retaliation. Her state law claims arise under the Colorado Anti-discrimination Act, and include state common law claims for defamation and tortious interference. [Dkt. 36, pp.1-2.] In addition to suing the District and Thompson, Plaintiff asserts her claims variously against the Cherry Creek School District Board of Education (“Board”), the District's Superintendent Scott Siegfried (“Siegfried”), its Director of Human Resources Ty Valentine (“Valentine”), and Highline's Assistant Principal Kevin Watanabe (“Watanabe”). [Dkt. 36, pp.10, 18, and 25.]
In liberally construing Plaintiff's claims, the Court does not construe them to allege a stand-alone claim under 42 U.S.C. § 1983 because Plaintiff alleges no constitutional violations. Her reference to Section 1983 appears to be solely as the vehicle for her Section 1981 claims.
As required by Fed.R.Civ.P. 56, Defendants supported their Motion with affidavits, deposition testimony, and other admissible evidence. They presented 60 discrete statements of undisputed material facts supported by competent record evidence, thereby meeting their initial burden as the moving party. While Plaintiff denies many of Defendants' statements of undisputed material facts, the bulk of her denials consist of unsubstantiated and conclusory allegations which carry no probative value on summary judgment. Hasan v. AIG Prop. Cas. Co., 935 F.3d 1092, 1098-99 (10th Cir. 2019) (citing Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004)). At this stage, a plaintiff is required to “go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of trial which a rational trier of fact could find for the nonmovant.” Coleman v. Blue Cross Blue Shield of Kan., 487 F.Supp.2d 1225, 1232 (D. Kan. 2007) (internal quotations and citation omitted). Accordingly, for purposes of summary judgment, the Court finds as undisputed all facts which Plaintiff failed to properly refute with competent evidence under Rule 56(c)(1).
Moreover, Defendants seek to exclude many of Plaintiff's exhibits because they “are hearsay and cannot be presented in a form that will be admissible at trial.” [Dkt. 97, p.1.] “Material that is inadmissible will not be considered on a summary-judgment motion because it would not establish a genuine issue of material fact if offered at trial[.]” Johnson v. Weld Cty., Colo., 594 F.3d 1202, 1209 (10th Cir. 2010) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2727, at 497-98 (3d ed. 1998)). For example, trial courts “are constrained to disregard . . . hearsay on summary judgment when . . . there is a proper objection to its use and the proponent of the testimony can direct us to no applicable exception to the hearsay rule.” Id. (quoting Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007)). The Court may only consider self-authenticating documents or those supported with “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Law Co., Inc. v. Mohawk Const. and Supply Co., Inc., 577 F.3d 1164, 1170 (10th Cir. 2009) (quoting Fed.R.Evid. 901).
In her response, Plaintiff offers no support for the Court to consider the authenticity or admissibility of her various exhibits. The Court has accepted those exhibits submitted with Plaintiffs' response which Defendants further relied on with their reply, effectively stipulating to the authenticity and admissibility of those particular exhibits. However, for purposes of summary judgment, the Court does not consider the following exhibits objected to by Defendants because these exhibits lack proper authentication or suffer admissibility issues under applicable rules of evidence: [Dkts. 85-1, 85-4, 85-5, 85-6, 85-7, 85-10, 85-11, 85-12, 85-13, 85-17, 85-19, 85-20, 85-21, 85-22, and 85-23.]
D. UNDISPUTED MATERIAL FACTS
Highline serves a highly diverse student population in the District, with a significant majority of its students eligible for free and reduced lunches. [Dkt. 75-1, ¶3.] Thompson (Hispanic female) served as Highline's principal from 2014 to 2019. [Id. at ¶2.] She initially hired Plaintiff as a STEM teacher for the 2016 - 2017 school year. [Id. at ¶4.] Because Plaintiff's prior teaching experience was from outside Colorado, Thompson offered Plaintiff a teaching contract on a probationary period, meaning her contract was subject to non-renewal on an annual basis for a three year period. [Id. at ¶5.]
The District values equity and inclusion in its learning and work environments. [Id. at ¶6.] It maintains anti-discrimination policies prohibiting discrimination and retaliation. [Dkt. 75-2, ¶13.] It also fostered a 19-year relationship with Pacific Educational Group (“PEG”) to provide equity training to District staff. [Id. at ¶3.]
In its Beyond Diversity training, PEG raised the topic of “white privilege” with the stated purpose of “understand[ing] how whiteness or white privilege plays in [the District],” “creating greater consciousness,” and building “knowledge and capacity around racism.” [Dkt. 75-3, pp.34:19-35:3.] The District used PEG as a resource to “give[ ] language and common understanding so that people can engage in [ ] ‘courageous conversations' interracially and intra-racially.” [Id. at p.6:23-7:1.]
In addition, once a week teachers attended Professional Learning Community meetings. [Dkt. 75-1, ¶6.] Once a month, these meetings were devoted to equity topics. [Id.] Thompson designated several staff members as “equity facilitators” who planned and led each month's equity-focused meeting. [Id.] Equity topics included “white privilege” and the negative impacts of implicit bias on students of color. [Dkt. 75-4, ¶8.] Thompson required all teachers to attend the Community meetings, but she was flexible when scheduling conflicts arose. [Dkt. 75-1, ¶7.]
Plaintiff began experiencing problems in her third year at Highline. Her premier STEM project each year was a school-wide balloon launch. [Id. at ¶13.] As in the prior year, she planned to practice the balloon launch after school. [Dkt. 75-6, p.40:11-14.] But she planned the practice launch to occur on the same day as a mandatory Community meeting. [Id. at pp.46:23-47:3.] Just before the planned community meeting, Plaintiff approached Thompson and explained she would not be attending because she needed to practice the balloon launch. [Dkt. 75-1, ¶13.] The interaction did not go well. Thompson states she “expressed that Shannon should have scheduled the practice around the mandatory PLC meeting.” [Id.] She claims Plaintiff then raised her voice and became very argumentative. [Id.] Concerned about Plaintiff's unprofessionalism, Thompson “called out” the behavior. [Id.] Plaintiff, for her part, claims Thompson called her “argumentative and loud” thereby perpetuating negative stereotypes of Black women as angry. [Dkt. 75-6, pp.44:14-46:10.] In the end, Thompson allowed Plaintiff to miss the Community meeting. [Dkt. 75-1, ¶13.]
1. Plaintiff's “Courageous Conversations”
During a meeting with Watanabe (Asian male) in December 2018, Plaintiff told him about her concerns over the equity-focused community meetings. [Dkt. 75-4, ¶9.] She explained she did not like the format of the meetings, which consisted of large group discussions with the entire staff, and that she would feel more comfortable sharing her perspective in smaller groups. [Id.] She also told him about her argument with Thompson over the balloon-launch practice, including her belief Thompson promoted negative stereotypes about Black women when she described Plaintiff as “angry” and “argumentative.” [Id.] Plaintiff considered this conversation with Watanabe to be a “courageous conversation” where she “spoke her truth[,]” and she asked him not to disclose her concerns out of fear of retaliation. [Dkt. 36, p.22.] Watanabe maintained Plaintiff's confidence and told no one. [Dkt. 75-4, ¶10; see also Dkt. 75-1, ¶17.]
In February 2019, Plaintiff was upset the students performed a musical for Black History month that included their singing African American spiritual hymns. [Dkt. 75-1, ¶18.] To the extent Watanabe learned of Plaintiff's concerns, he did not share them with Thompson or anyone else, and Thompson never heard of this concern. [Dkt. 75-4, ¶10; Dkt. 75-1, ¶17.]
Plaintiff alleges she raised this concern in a second meeting with Watanabe in February 2019. Watanabe does not recall this meeting or hearing Plaintiff had concerns over the musical. But because Watanabe was neither the decision-maker, nor involved in the decision to not renew Plaintiff's contract, the Court does not find these disputed facts to be material.
2. Plaintiff's Performance
Each year Plaintiff's performance evaluation was completed by a different evaluator. Thompson completed Plaintiff's first-year evaluation. [Dkt. 75-1, ¶8.] It was Thompson's practice to base evaluations, in part, on informal and formal classroom observations followed by meetings where she provided feedback to the teacher. [Id.] Thompson observed Plaintiff multiple times, informally and formally, during her first year. [Id.] She found Plaintiff did not use STEM-focused classroom materials to maximize instruction time. [Id. at ¶9.] She also observed Plaintiff did not differentiate her instruction among grade levels, such that students in the first grade were often doing the same activities as those in higher grade levels. [Id.] Nor did Plaintiff differentiate her instruction based on individual student needs. [Id.] Thompson further observed Plaintiff use a harsh tone with students, which she described as “disrespectful.” [Id.] Thompson suggested to Plaintiff that she be more thoughtful of her tone when redirecting and correcting students to ensure they were all treated respectfully and fairly. [Id.] She also provided Plaintiff her additional observations. [Dkt. 75-5, pp.111:14-112:3.] Plaintiff asked Thompson whether she needed to look for another job for the following year, and Thompson told her no. [Id.]
At the end of Plaintiff's first year, Thompson rated her work as “basic” and “partially proficient.” [Id. at ¶10.] The overall rating, however, passed the “effective” threshold based on applicable state-performance ratings and standardized-test scores. [Id.] While Thompson could have non-renewed Plaintiff's contract after the first year, she wanted to give Plaintiff the benefit of the doubt and an opportunity to grow, so she renewed the contract for another term. [Id.]
Plaintiff had a different evaluator her second year. That evaluator noted similar concerns to those noted by Thompson the first year. [Id. at ¶11.] Plaintiff continued to show a “lack of differentiation and scaffolding” in her instruction accounting for students' different grade levels and needs. [Id.] Although there were still concerns with Plaintiff's performance during her second year, Thompson again renewed the contract because she valued Plaintiff's diversity and she hoped Plaintiff would “show growth” in the third year. [Id.]
Assistant Principal Michelle Colton is listed as the evaluator. [Dkt. 85-3, p.34.] She is not named as a party to the present lawsuit.
Watanabe evaluated Plaintiff's performance during her third and final year. [Dkt. 75-4, ¶3.] He observed Plaintiff multiple times, informally and formally. [Id. at ¶4.] Overall, he felt Plaintiff was doing the “very bare minimum amount of work to be a classroom teacher.” [Id. at ¶5.] From his observations, Plaintiff was unprepared for lessons, and she lacked the requisite STEM knowledge. [Id.] He further found she did not demonstrate “rigor” in the classroom and her lessons lacked consistency. [Id.] For example, Plaintiff often showed videos in class with no apparent connection to STEM, such as the Disney movie Moana and the animated television series, The Magic School Bus. [Id.] As a result, Watanabe directed Plaintiff to provide him the lesson plans for her classes for his review and feedback, but she failed to provide them. [Id.]
Watanabe also concluded Plaintiff lacked follow-through. [Id. at ¶7.] She committed to teach a science unit for the first-grade teachers but failed to prepare the lesson plans so the teachers taught the unit themselves. [Id.] She committed to assist teachers with a school-wide “grab bag” event but called in sick the day she was to instruct them on the project. [Id.] She also called in sick the day of the grab bag event and was unavailable to facilitate the event or assist teachers and students with their projects. [Id.] She also failed to provide information to Watanabe to complete her evaluation, including her final student learning objectives (“SLOs”). [Id. at ¶11; Dkt. 75-5, pp.139:3 - 141:9.]
There were also issues with Plaintiff's attendance in her third year. She was absent 26 school days; 10 of these days due to bereavement leave in February 2019. [Dkt. 75-1, ¶12.] When taking leave, teachers are required to provide lesson plans for the substitute teacher to follow. [Dkt. 75-4, ¶6.] Plaintiff often failed to leave lesson plans, and when she did, they were minimal. [Dkt. 75-1, ¶12; Dkt. 75-4, ¶6.] She also failed to timely request a substitute teacher, often leaving her colleagues to cover her classes. [Dkt. 75-1, ¶12.] This created a significant burden on other teachers and school administration. [Id.] Watanabe felt Plaintiff's behavior was “wholly inadequate, contrary to the District's leave procedures, and inconvenienced her colleagues.” [Dkt. 75-4, ¶6.]
In December 2018, Watanabe met with Plaintiff for her mid-year review and discussed his concerns about her “lack of rigor, professionalism and conduct.” [Id. at ¶19.] For her final performance evaluation for the 2018 - 2019 school year, he rated her as “partially effective.” [Id. at ¶11.; id. at p.15.] Dkt. 75-4, p.15.] He determined her performance did not meet the District's expectations and was unsatisfactory. [Id. at ¶11.] He shared his concerns about Plaintiff's performance with Thompson, specifically her lack of rigor in her classroom and the lack of differentiation in her lessons. [Dkt. 75-1, ¶14.] He also shared his concerns regarding Plaintiff's failure to obtain substitute teachers, leave substantive lesson plans for them, and her failure to provide him with her final SLOs. [Id.]
Watanabe's concerns led Thompson to conclude Plaintiff had not shown sufficient professional growth. [Id.] Thompson expected more from a veteran teacher, believed the students would benefit from more effective STEM instruction, and determined Plaintiff's performance was unlikely to improve. [Id. at ¶¶15, 16.] She was also confident she could recruit a more effective teacher from the applicant pool. [Id. at ¶16.] Accordingly, Thompson recommended to the Superintendent that Plaintiff's contract not be renewed. [Id. at ¶15.] Other than sharing his concerns over Plaintiff's performance (based on his third-year evaluation) with Thompson, Watanabe was not involved in Thompson's non-renewal decision. [Dkt. 75-4, ¶12.]
3. Policy 4173
The policy followed by the District regarding the non-renewal of probationary teachers is contained in the District's collective-bargaining agreement with the teacher's union. [Dkt. 75-12, p.36.] Policy 4173 outlines the process for non-renewing probationary teachers. [Dkt. 75-2, ¶4.] One of the purposes of the probationary status is to afford the District maximum flexibility in hiring personnel. [Id.; Dkt. 75-12, p.36.] Based on the policy, building-level administrators, including school principals like Thompson, determine the renewal or non-renewal of probationary teachers' contracts, and provide their recommendation to the Superintendent. [Dkt. 75-2, ¶5.]
Once a recommendation is made to, and affirmed by, the Superintendent, it is then referred to the District's Human Resources Department (“HR”) for presentation to the District's Board. [Id. at ¶7; Dkt. 75-8, ¶4.] HR does not independently review the propriety of the principal's recommendation as a matter of course; instead, it relies on the principal's professional judgment. [Id.; Dkt. 75-2, ¶5.]
HR provides annual written guidance to principals regarding the non-renewal process. [Id. at ¶6.] The guidance for 2018 - 2019 listed five reasons or “codes” for non-renewal: (1) program change or reduction; (2) enrollment decline; (3) program flexibility; (4) ineffective performance; and (5) other. [Id.] Thompson was previously informed by HR that non-renewal for “ineffective performance” (Option 4) had “several important legal requirements,” such as issuance of a remediation plan and allowance of a reasonable period of time for the teacher to improve. [Id.] Non-renewal for “other” (Option 5), however, did not have the same requirements and allowed principals “complete and sole discretion” in hiring “the best teachers possible.” [Id.] Thus, non-renewal decisions coded as “other” in order to hire from the applicant pool was typically used for general performance issues. [Id.] This was because HR advised principals to only code non-renewals as “ineffective performance” if there were “grave concerns” with a teacher's effectiveness and all legal requirements had been met. [Id.] HR also advised principals to avoid renewing a teacher's contract in the third year if there were any performance concerns. [Id. at ¶10.] Thus, the non-renewal of probationary teachers' contracts after their third year was not uncommon. [Id.] Based on this guidance, Thompson coded Plaintiff's non-renewal as “other.” [Dkt. 75-1, ¶16.]
There is no dispute Plaintiff never received written disciplinary action while at Highline. [Dkt. 75-1, ¶23.]
4. Thompson Recommends Non-renewal
Thompson met with Plaintiff on April 5, 2019, and told her she was recommending the non-renewal of her contract. [Id. at ¶19; Dkt. 85-15, p.1.] Thompson also explained that while she would not write Plaintiff a letter of recommendation, she would provide a reference if contacted by prospective employers. [Dkt. 75-5, p.163:10-15.]
Superintendent Siegfried approved Thompson's recommendation. [Dkt.75-8, ¶4.] He had no personal or first-hand knowledge of the facts or circumstances of either Plaintiff's employment with the District or her non-renewal; he instead relied on Thompson, as he did with all his staff, when approving her non-renewal recommendation. [Id. at ¶¶4, 5.] He forwarded the recommendation and his approval on to HR for presentation to, and further approval by, the Board. [Dkt. 75-2, ¶7.] The Board approved the non-renewal on May 2, 2019. [Dkt. 75-2, pp.7-14.]
5. Thompson's Reference
In the Spring of 2019, Thompson received a reference call about Plaintiff from Aurora Public Schools (“APS”) for an administrative position. [Dkt. 75-1, ¶21; Dkt. 75-6, pp.74:22-75:1.] Thompson regularly provides job references when she receives such requests about current and former employees. [Dkt. 75-1, ¶21.] During that call, Thompson informed APS that Plaintiff was absent for 26 days during the 2018-19 school year and that she failed to submit her student learning objectives for the year. [Id.] She also provided “some positive comments” about Plaintiff's work. [Id.] It is undisputed the information Thompson provided during the reference call was true. [Dkt. 75-1, ¶21; Dkt. 75-5, pp. 139:3-141:9, 209:12-15.] No one, other than Thompson, was involved in the reference provided to APS. [Dkt. 75-, p.22:5-11; Dkt. 85, p.19.]
Plaintiff asserts the reference call occurred on or around July 12, 2019. [Dkt. 75-7, p.18:9-10.]
6. Plaintiff's Complaints
After Thompson notified Plaintiff she was recommending non-renewal, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on April 10, 2019. [Dkt. 1, pp. 36-38.] Plaintiff alleged her contract was not renewed because of her race and in retaliation for protected activity. [Id. at p.36.] The District forwarded the EEOC charge to its legal counsel. [Dkt. 75-7, p. 16:3-17.]
Plaintiff also filed an internal grievance on April 16, 2019. [Dkt. 85-15, p.1.] HR interpreted the grievance as claiming Policy 4173 was unfair and Plaintiff was “expressing concerns about cultural differences” without reference to a specific policy violation. [Dkt. 75-7, p.9:9-20.] As a result, HR determined the grievance did not implicate any of the District's anti-discrimination policies and forwarded the grievance to Thompson for her response. [Id. at p.15:8-22.] After reviewing Thompson's response, HR determined the non-renewal policy was appropriately followed, and Thompson acted impartially and objectively in administering the policy. [Id. at p.15:7-18.] Ultimately, HR determined Plaintiff's grievance was without merit. [Id.]
7. Plaintiff's Termination and Second Grievance
On May 2, 2019, the Chief HR Officer provided the District's non-renewal recommendation on the Plaintiff to the Board along with 60 other teachers' nonrenewal recommendations. [Dkt. 75-2, ¶12; 75-9, ¶4.] The non-renewal recommendations were presented as a group without reference to any teachers' race or demographic information. [Dkt. 75-2, ¶12.] The Board was provided a list with the teachers' names, work location, position, probationary year (one, two, or three), the principal, and the reason for non-renewal, i.e., options 1-5. [Id.; id. at p.20.] Without discussion, the Board approved all recommended non-renewals, including Plaintiff's, with a public vote in one combined personnel action. [Id. at ¶12.] The Board was unaware Plaintiff had filed an EEOC charge or grievance at the time of the vote. [Dkt. 75-10, p.9:1-22.]
Plaintiff filed a second grievance, this time against Thompson, on July 3, 2019. [Dkt. 75-7, p.17:8-15.] Here she claimed Thompson provided a negative reference to APS in retaliation for Plaintiff's protected activity. [Id.] HR determined her claim was not sustainable because, at that point, she was no longer an employee. [Id.]
E. ANALYSIS
1. Summary Judgment as to the Board is Appropriate
In relevant part, Plaintiff has sued both the School District and its Board of Directors. Defendants argue suit against both is redundant because the District encompasses the Board. The Court agrees.
The Board is not a separate entity from the District. Roe v. Karval Sch. Dist. RE23, Civ. No. 12-cv-00239-WYD-KLM, 2013 WL 1858464, at *7 (D. Colo. May 2, 2013). And in any event, only the District may be sued. See K.D. by Nipper v. Harrison Sch. Dist. Two, Civ. No. 17-cv-2391-WJM-NRN, 2018 WL 4467300, at *6 (D. Colo. Sept. 18, 2018) (citing Colo. Rev. Stat. § 22-32-101 “Each regularly organized school district . . . is declared to be a body corporate . . . and in its name it may . . . sue and be sued . . .”). Accordingly, the Court recommends Defendants' Motion be granted insofar as the claims asserted against the Board of Directors.
2. Title VII and Section 1981
Plaintiff's claims allege the District discriminated against her because of her race, subjected her to a hostile work environment, and retaliated against her in violation of Title VII and Section 1981. [See generally Dkt. 36.]
Title VII of the Civil Rights Act of 1964 provides a cause of action against employers who “discriminate against any individual with respect to h[er] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin,” or who retaliate against a person for opposing an unlawful employment practice. Hannah v. Cowlishaw, 628 Fed.Appx. 629, 632 (10th Cir. 2016) (citing 42 U.S.C. §§ 2000e-2(a)(1)).
Section 1981 gives “[a]ll persons within the jurisdiction of the United States ... the same right ... to make and enforce contracts.” 42 U.S.C. § 1981. Similar to Title VII, it “prohibits not only racial discrimination [in the workplace] but also retaliation against those who oppose [discrimination].” Hannah, Fed. App'x at 631-32 (quoting, Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 355 (2013)). Unlike Title VII, Section 1981 does not provide a vehicle for remedying racial discrimination and retaliation in cases brought against state actors. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 705 (1989). Rather, Section 1983 “provides the exclusive federal damages remedy for the violation of the rights guaranteed by [S]ection 1981 when the claim is pressed against a state actor.” Hannah, 628 Fed. App'x 629 at 632 (quoting Jett, 491 U.S. at 735).
When a case under Title VII and Section 1981 arises out of the same set of facts, the elements for each cause of action are identical. Thomas v. Denny's, Inc., 111 F.3d 1506, 1513 (10th Cir. 1997). Thus, to survive summary judgment on a Title VII and Section 1981 race discrimination claim arising from the same facts, a plaintiff may present direct evidence of discrimination, or as here, indirect evidence that satisfies the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, a plaintiff must first “raise a genuine issue of material fact on each element of the prima facie case. . .” Bekkem v. Wilkie, 915 F.3d 1258, 1267 (10th Cir. 2019) (internal citations omitted). The burden then “shifts to the employer to offer a legitimate non-discriminatory reason for its employment decision.” Id. If the employer does so, “the burden then reverts to the plaintiff to show that there is a genuine dispute of material fact as to whether the employer's proffered reason for the challenged action is pretextual - i.e., unworthy of belief.” Id.
A. Plaintiff Fails to Demonstrate a Genuine Dispute of Material Fact as to the Second and Third Elements of her Prima Facie Case of Race Discrimination
To establish a prima facie case of race discrimination under Title VII, Plaintiff must show: “(1) [s]he is a member of a racial minority; (2) [s]he suffered an adverse employment action; and (3) similarly situated employees were treated differently.” Trujillo v. Univ. of Colo. Health Sciences Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998). Further, a plaintiff must show racial animus to support a discrimination claim under Section 1981. Patrick v. Miller, 953 F.2d 1240, 1250 (10th Cir. 1992) (citing General Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982)).
Plaintiff asserts the “prima facie case of racial discrimination has been proven in responses to the statement of facts #1-60[.]” [Dkt. 85, p.24.] But her responses to Defendants' statement of undisputed material facts are only conclusory refutations of those facts. Instead, “it is the responding party's burden [at summary judgment] to ensure that the factual dispute is portrayed with particularity, without ... depending on the trial court to conduct its own search of the record.” Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir.2004) (quoting Downes v. Beach, 587 F.2d 469, 472 (10th Cir.1978)).
Plaintiff contends her being hired on a three-year probationary status evidences discrimination. But she cannot show her probationary status was an adverse employment action because it is undisputed Colorado law required Plaintiff to serve a three-year probationary period, subject to non-renewal, when the District hired her. Colo. Rev. Stat. § 22-63-203(2)(a) (“During the first three school years that a teacher is employed on a full-time continuous bases by a school district, such teacher shall be considered to be a probationary teacher whose employment contract may be subject to [non-renewal] . . .”). And while Plaintiff asserts in her Amended Complaint that a teacher outside her protected class was hired without the required probationary status, she fails to identify this individual and presents no competent evidence showing they are similarly situated. See Rivera v. City and County of Denver, 365 F.3d 912, 922 (10th Cir. 2004) (defining “similarly situated”).
Plaintiff also points to Thompson calling her “loud” and “argumentative” as evidence of race discrimination. But she fails to present competent evidence that this single, verbal-altercation with Thompson rose to the level of an adverse employment action. To be sure, it is undisputed Thompson ultimately allowed Plaintiff to miss the equity meeting-which was the cause of their argument-to instead practice the balloon launch. [Dkt.75-1, ¶13; Dkt. 75-6, pp.43:25-47:6.] And Plaintiff again fails to present competent evidence that she was treated less favorably than others similarly situated.
For these reasons, no reasonable jury could find Plaintiff suffered race-based discrimination to support Plaintiff's Title VII claim, or her Section 1981 claim.
B. Even Assuming Plaintiff Could Establish a Prima Facie Case of Race Discrimination Regarding her Non-renewal, her Claim Still Fails for Lack of Competent Evidence of Pretext
Plaintiff also alleges Defendants discriminated against her because of her race when they failed to renew her contract. Defendants offer a legitimate business reason for the non-renewal of her contract, to wit, Plaintiff's lack of professional growth over her probationary period.
Plaintiff fails to present competent evidence that Defendants' proffered non-discriminatory reason for the non-renewal of her contract was pretextual. Even construing the record in the light most favorable to Plaintiff, the undisputed material facts show the District experienced and maintained concerns over her job performance all three years of her probation. Some of those concerns were memorialized in her annual performance reviews her first two years or were discussed and raised internally between Thompson and Watanabe.
For example, Thompson commented in Plaintiff's first-year evaluation: “taking into consideration the different skills and ability level of each grade level will allow [Shannon] to better adjust [her] content, complexity[,] and learning tasks;” “there is opportunity for [Shannon] to further clarify and elaborate interdisciplinary connections for [Shannon's] students across all grade levels;” “[t]he heart of courtesy is respect. An effective teacher treats all students with respect in ALL circumstances;” “[b]e thoughtful with your tone and word choice when redirecting or correcting students;” “[q]uite [sic] and private conversations (versus yelling across the room or over a noisy/active room) are a good way to maintain courtesy while addressing the behavior;” and, “it is essential you establish consistent routines and procedures for regrouping students” [Dkt. 85-3, pp.1-11.] Plaintiff's evaluator her second year had similar feedback, including that Plaintiff needed to differentiate her resources to allow access to students at varying ability levels; be more intentional about emphasizing math applications in her lessons; and perform more student assessments to confirm student knowledge and give timely and actionable feedback. [Id. at pp.21-33.]
While Plaintiff's final performance evaluation contains no comments, [dkt. 754, pp.4-16], Watanabe's affidavit details his concerns surrounding her performance that third year. Specifically, he says she was “doing the very bare minimum amount of work;” was unprepared for lessons and “did not seem to have the requisite knowledge of the STEM content area;” “did not demonstrate rigor in the classroom. . . lessons lacked consistency;” and she “lacked follow-through.” [Id. at ¶¶5,7.]
Plaintiff attempts to refute this evidence as pretextual by claiming she was unaware of these performance issues. But her deposition testimony confirms she asked Thompson whether she needed to look for a new job after receiving her first-year evaluation, suggesting she was aware of dissatisfaction with her performance, at least after her first-year review. [Dkt. 75-5, pp.111:14-112:3.] Regardless, whether Plaintiff was aware of the District's dissatisfaction with her job performance, the undisputed facts demonstrate the District was in fact concerned with her job performance throughout her probationary period.
Plaintiff further argues that if her performance was the reason for nonrenewal, then it was discriminatory for Thompson to have selected “other” (Option 5) as the reason versus “ineffective performance” (Option 4). But Chief HR Officer Brenda Smith's affidavit confirms Option 4 was used only when there were “grave concerns” with a teacher's performance, and she advised principals that Option 5 allowed them the “complete and sole discretion” to hire “the best teachers possible” from the applicant pool. [Dkt. 75-2, ¶6.] Plaintiff neither argues, nor is there evidence, that the District's concerns over Plaintiff's performance rose to a level of gravity requiring Thompson to select Option 4. And the undisputed material facts show HR advised principals to recommend non-renewal for third-year probationary teachers if there were any performance issues, as there were with Plaintiff. [Id. at ¶10.]
Thompson confirms she followed this advice when she selected Option 5 to recommend non-renewal of Plaintiff's contract. [Dkt. 75-1, ¶16.] While the District's practice of using the vague, catchall category of “other” to afford principals the widest discretion possible may be ripe for abuse by the unscrupulous, the relevant inquiry here is not whether the District's proffered reasons are wise, fair, or correct-rather, it is whether the District believed those reasons to be true and acted in good faith upon them. Piercy v. Maketa, 480 F.3d 1192, 1200 (10th Cir. 2007). Even taking the undisputed material facts in the light most favorable to Plaintiff, no reasonable jury could find the District's proffered reason for non-renewal of the contract was a pretext for discrimination.
Plaintiff argues Thompson and Watanabe repeatedly committed perjury in their affidavits submitted in support of the Motion. But these arguments are conclusory, speculative, and are not supported by competent evidence to refute the statements made in them. See Bones, 366 F.3d at 875 (“To defeat a motion for summary judgment, evidence . . . must be based on more than mere speculation, conjecture, or surmise.”).
C. Plaintiff Fails to Demonstrate a Genuine Dispute of Material Fact as to the Fourth Element of her Prima Facie Case for her Hostile Work Environment Claim
To meet the prima facie burden with respect to a hostile work environment claim, Plaintiff must show: (1) she is a member of a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment was based on race; and (4) due to the harassment's severity or pervasiveness, the harassment altered a term, condition, or privilege of her employment and created an abusive working environment. Lounds v. Lincare, Inc., 812 F.3d 1208, 1222 (10th Cir. 2015) (citing Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007)).
Plaintiff targets the District's PEG Beyond Diversity training and Highline's monthly, equity-focused PLC meetings, to support her claim of a hostile work environment. She argues the PEG training promoted “White privilege” and focused on “typical negative stereotypes of Black people.” [Dkt. 36, p.13.] She claims these negative stereotypes were then reinforced in the work environment as evidenced by Thompson calling her “loud” and “argumentative,” and by the Black History Month musical. [See generally, Dkt. 36.]
No doubt Plaintiff considered PEG and Highline's equity training unwelcome harassment-the second element of her claim. But the fourth prima facie case element of pervasive or severe standard is a high standard. This is because “Title VII does not establish a general civility code for the workplace and . . . a plaintiff may not predicate a hostile work environment claim on run-of-the-mill boorish, juvenile, or annoying behavior that is not uncommon in American workplaces.” Lounds, 812 F.3d at 1222. (internal quotations omitted). The standard has both subjective and objective components. Id. It is not enough that a plaintiff deems the work environment hostile - the environment must be “so permeated with discriminatory intimidation, ridicule, and insult” that a reasonable person under the same or similar circumstances would deem it hostile. Id. The totality of the circumstances is the touchstone of a hostile work environment analysis. Id. As such, courts consider a variety of factors, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Sprague v. Thorn Ams. Inc., 123 F.3d 1355, 1365 (10th Cir. 1997).
No reasonable jury taking the undisputed material facts here, could find that Plaintiff meets her burden. While Plaintiff may have felt uncomfortable with, and been offended by, either of these trainings' focus on “white privilege,” she's proffered no competent evidence on the severity or pervasiveness of these discussions, or evidence the content of these trainings included elements of discriminatory intimidation, ridicule or insults. And while she states these trainings focused on “typical negative stereotypes of Black people,” she again proffers no evidence of the severity or pervasiveness of these references, and points to no admissible evidence to support her contention. Coleman, 487 F.Supp.2d at 1232 (on summary judgment, the nonmoving party must “go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of trial which a rational trier of fact could find for the nonmovant”).
For these reasons, summary judgment is warranted in favor of Defendants on the hostile work environment claim.
D. Plaintiff's Retaliation Claim Fails for Lack of Competent Evidence of Pretext
Plaintiff asserts her “courageous conversations” with Watanabe were protected activity, and the District retaliated against her for those conversations by not renewing her contract and by Thompson's subsequent, negative reference to a prospective employer. To establish a prima facie case of retaliation, a plaintiff must show (1) she engaged in protected opposition to discrimination; (2) a reasonable employee would have found the employer's alleged retaliatory action to be materially adverse; and (3) a causal connection exists between the protected activity and the materially adverse action. Robinson v. Dean Foods Co., 654 F.Supp.2d 1268, 128283 (D. Colo. 2009).
Regarding Plaintiff's retaliatory non-renewal claim, and as discussed above, Plaintiff has failed to adduce competent evidence of pretext. Even if the Court were to agree her “courageous conversations” with Watanabe equated to protected activity, no causal connection exists between these conversations and Thompson's nonrenewal decision four months later, for the reasons discussed above. See, e.g., O'Neal v. Ferguson Const. Co., 237 F.3d 1248, 1253 (10th Cir. 2001); Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999). Moreover, knowledge is key. “An employer's action against an employee cannot be because of that employee's protected [activity] unless the employer knows the employee has engaged in protected [activity.]” Petersen v. Utah Dept. of Corrections, 301 F.3d 1182, 1188 (10th Cir. 2002) (emphasis in the original). It is undisputed Watanabe maintained Plaintiff's confidence and did not share these “courageous conversations” with Thompson who made the initial non-renewal decision. [Dkt. 75-4, ¶9.] Thompson corroborates Watanabe had not shared these conversations with her when she made her decision.[Dkt. 75-1, ¶17.]
See, supra, n.7.
In regard to the APS reference call, Plaintiff admits Thompson told APS the truth. [Dkt. 75-5, p.209:7-21; see also Dkt. 85, p.19 (Thompson “accurately” told the school about Plaintiff's absences; Thompson also “accurately shared Shannon did not submit her required SLO goals for the year.”).] Other than her conclusory statements characterizing Thompson's conduct as acting “with malicious intent,” Plaintiff provides no evidence that Thompson's accurate and truthful reference was somehow given in retaliation for Plaintiff's prior conversations with Watanabe. [Dkt. 85, p.19.] See Colo. Rev. Stat. § 22-32-109.7(2)(a)-(b) (“Any previous employer of an applicant for employment who provides information to a school district or who makes a recommendation concerning an applicant, whether at the request of the school district or the applicant, shall be immune from civil liability unless: (1) the information is false . . .”).
Plaintiff's contract, though not renewed, ended by its terms on June 30, 2019. [Dkt. 75-1, ¶22.]
Based on the undisputed material facts, no reasonable jury could conclude the District's or Thompson's actions in not renewing Plaintiff's contract and in providing the employment reference to APS were done in retaliation for any protected activity Plaintiff may have engaged in.
3. Section 1981
A. Plaintiff Fails to Demonstrate a Genuine Dispute of Material Fact as to her Prima Facie Case against the Individual Defendants
Section 1981 holds individual defendants liable when they are personally involved in the alleged discrimination or where an affirmative link exists to connect their individual conduct to the alleged discrimination. Howard v. Oklahoma Dep't of Corr., 247 F.Supp.3d 1210, 1226-27 (W.D. Okla. 2017). In the Court's aboveanalyses of Plaintiff's discrimination, hostile work environment, and retaliation claims, the Court considered each Defendants' actions, individually and in combination, to determine whether the undisputed material facts support Plaintiff's required elements of proof. Because this Court has found no reasonable jury could conclude any Defendants' actions, individually or in combination with others', supports Plaintiff's Title VII claims, the Court finds no individual Defendants' actions support Plaintiff's Section 1981 claims either. Cf. Hannah, 628 Fed. App'x at 632 (where district court found liability under Title VII, reversing and remanding to the district court to analyze individual defendant's conduct for violations of Section 1981). Accordingly, the Court recommends dismissing Plaintiff's Section 1981 claims against the individual Defendants.
B. Monell Claims
“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 556, 676 (2009) (citing Monell v. Department of Social Services, 436 U.S. 658, 694-95 (1978)). To establish municipal liability under Monell, a plaintiff must show (1) a municipal employee committed a constitutional violation; and (2) a municipal policy or custom was the moving force behind the constitutional deprivation. Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004).
Based on this Court's recommendation that no reasonable jury could conclude any individual Defendant violated Section 1981, Plaintiff's Monell claim against the District necessarily fails. See Jett, 491 U.S. at 736-37 (The district could be liable when “execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.”).
4. Plaintiff's State Law Claims
“Notions of comity and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary.” Thatcher Enters. v. Cache Cnty. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990). Plaintiff's remaining claims either arise out of Colorado statutes or are grounded in Colorado common law; no federal laws are implicated by these claims. [See generally Dkt. 36.] There is no a compelling reason to maintain jurisdiction over the state claims in light of this Court's recommendation that summary judgment be granted in favor of Defendants on the claims arising under federal law.
F. CONCLUSION
For the foregoing reasons, the Court RECOMMENDS Defendants' Motion be GRANTED in its entirety and that judgment enter in favor of Defendants on all claims asserted against them.
Be advised the parties have 14 days after service of this recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within 14 days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).