Summary
In Spain, the plaintiff was demoted and someone beneath him assumed his previous supervisory position. The employee who replaced the plaintiff allegedly stated that the plaintiff was "handling the reassignment better than she would... if what happened to [Plaintiff] happened to [her,] she would be mad and quit."
Summary of this case from Crumel v. Hampton UniversityOpinion
Civ. Action No. 3:00cv474
July 31, 2001
Carolyn P. Carpenter, for plaintiff.
Mary F. McGowan, and Joseph P. Dyer, Jr., for defendant.
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This matter is before the Court pursuant to 28 U.S.C. § 636(b)(1)(A) on the Defendant's Motion for Summary Judgment. Fed.R.Civ.P. 56. The Plaintiff alleges four separate causes of action involving his prior employment by the Defendant: (1) gender discrimination in violation of Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e, et seq.; (2) constructive discharge also alleged as a violation of Title VII; (3) deprivation of his constitutional right to due process in violation of 28 U.S.C. § 1983 and the Fourteenth Amendment; and (4) a pendent state law cause of action for breach of contract. (Am. Compl. at 6). For the reasons set forth herein, it is recommended that the Defendant's motion be GRANTED.
Standard of Review
Summary judgment is only to be granted when there is no genuine dispute as to any issue of material fact when all justifiable inferences are drawn in favor of the non-moving party and the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, unsupported conclusory allegations by the non-moving party are not sufficient to create a genuine dispute of material fact so as to withstand the granting of relief. Celotex Corp. v. Catrett, 477 U.S. at 327 (White, J., concurring). In essence, the Court must decide if the evidence when viewed in the light most favorable to the non-moving party "presents a sufficient disagreement to require submission to the [factfinder] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-252.
Undisputed Facts and Justifiable Inferences
The Court finds that the following facts and justifiable inferences are relevant to the resolution of the pending motion:
1. The Plaintiff was employed by the Mecklenburg County School Board (School Board) in various capacities from 1966 until March 2000. From 1981 through 1993, he held the title of Coordinator of Regular and Special Services of the Department of Special Education; for the academic years of 1993 through 1995, he was Administrative Supervisor and Coordinator of Special Services; from 1995 through September 1999, he was Director of Special Education; and from September 1999 through March 2000, he was Supervisor of Special Education. (Spain Dep. at 229, Ex. 1 attached to Def.'s Mot. Summ. J.; Spain Empl. Record, Ex. 5 attached to Def.'s Mot. Summ. J.).
2. The Plaintiff holds an Associate of Arts degree, a Bachelor of Arts degree in English, and a Masters degree in Administration and Supervision, but no other certifications, degrees, academic training or experience teaching special education. (Ex. 8 attached to Def.'s Mot. Summ. J.).
3. Plaintiff's continuing employment with Mecklenburg County Schools was governed by an "Annual Contract with Professional Personnel" that was entered into on February 14, 1972, when he became principal of an elementary school in the county (LaCrosse Elementary School). (Ex. 13 attached to Def.'s Mot. Summ. J.). Periodically, Plaintiff and the School Board entered into supplemental agreements to reflect changes in his conditions of employment. (See, e.g., Ex. 14 attached to Def.'s Mot. Summ. J.).
4. During the time that Plaintiff served in administrative roles in the Special Education Department of the school system, he received satisfactory performance ratings on repeated occasions from his supervisors (including both the Superintendent or Assistant Superintendent for Personnel/Instruction).
5. Virginia state law required that an employee in the administrative position held by Plaintiff obtain and maintain a Virginia postgraduate professional license. Although the license that the Plaintiff initially obtained did not authorize him to act as a supervisor or director of special education, he was granted an administrative waiver in 1992 by the Virginia Department of Education. (Ex. 9 attached to Def.'s Mot. Summ. J.).
6. Regardless of the title for the various positions he held, Plaintiff occupied highlevel administrative positions in the Mecklenburg County Department of Special Education after 1981; and from approximately 1995 to his reassignment in the fall of 1999, Plaintiff was responsible for the administration of the entire special education program for the division. (Hill Aff. ¶¶ 3-4, ex. 3 attached to Def.'s Mot. Summ. J.).
7. Since approximately 1994, the Special Education Department had been under review by the U.S. Department of Education, Office of Civil Rights (OCR) for allegations, among others, of ability grouping and racial disproportionality in special education. (Ex. 22 attached to Def.'s Mot. Summ. J.).
8. On June 6, 1997, a separate complaint was filed with the OCR, regarding discrimination in the division, including the allegation that African-American students were disproportionately assigned to special education curricula. (Ex. 22 attached to Def.'s Mot. Summ. J.).
9. On May 18, 1998, then-superintendent William B. Chapman received monitoring information from the OCR regarding the issues under review since 1994 when the division "signed assurances with OCR concerning . . . student assignment to classes under the authority of Title VI of the Civil Rights Act of 1964." (Ex. 22 attached to Def.'s Mot. Summ. J.). The division assured OCR at the time that it "no longer employs a system of ability grouping, and that racially disproportionate enrollment in certain classes is the result of student choice." OCR closed its monitoring function accordingly, but "encourage[d] the division to continue its efforts to increase minority student participation in college preparatory classes."
10. Rebecca Perry (Perry) was appointed Superintendent of the Mecklenburg County school system effective July 1, 1998.
11. Shortly after Perry's arrival, she convened a meeting of central office personnel during which she discussed her vision and objectives for improvement of the county school system.
12. On December 22, 1998, Perry received correspondence from OCR informing her of the disposition of the 1997 complaint concerning racial discrimination in special education, including the hiring and promoting of teachers and the application of the division's disciplinary policy. Relevant to this case, the OCR investigation concluded that there was a disproportionate assignment of African-American students to special education curriculums combined with a failure to place African-American students in available accelerated programs (so-called gifted and talented programs). (Ex. 22 attached to Def.'s Mot. Summ. J.). To correct the identified problems, the School Board entered into a formal understanding (Commitment to Resolve) on December 21, 1998 to identify and address the problems in the Special Education Department.
13. On or about August 16, 1999, Larry Farmer (Farmer) was hired as Assistant Superintendent of Instruction for the division with direct supervision over the Plaintiff.
14. Cecilia Coleman (Coleman) was employed by the School Board from 1994 through 1999 within its Department of Special Education. Although her title also changed from time to time as did the Plaintiffs, throughout her tenure she exercised high-level administrative instructional responsibilities in the Department of Special Education such as supervising special education teachers and maintaining oversight responsibility for instructional programs. (Ex. 12 attached to Pl.'s Mot. Summ. J.).
15. During the initial time period in question in this case, Coleman was Supervisor of Special Education and, according to the relevant job description, was required to report to the Plaintiff in his position as Director of Special Education. (Ex. 12 attached to Pl.'s Mot. Summ. J.).
16. Coleman is a female who holds a Bachelor of Science degree in Special Education and a Master of Education degree in Preschool Handicapped Education. She also has an endorsement for supervision of instruction and special education supervision. (Ex. 46 attached to Def.'s Mot. Summ. J.).
17. On or about September 24, 1999, Coleman was made Director of Special Education, replacing the Plaintiff, and the Plaintiff was placed in the position of Supervisor of Special Education, the position previously held by Coleman.
18. Plaintiff views the change in title and responsibilities as a demotion while the Defendant maintains it was a reassignment consistent with the terms of Plaintiff's employment contract.
19. Under Mecklenburg County School Board policy, state law (Va. Code Ann. §§ 22.1-293, 22.1-297), and the terms of Plaintiff's employment contract, professional staff such as the Plaintiff can be reassigned by the superintendent of schools as long as there is no decrease in compensation for the school year involved. (Ex. 15 attached to Def.'s Mot. Summ. J.). Specifically, the School Board policy states that an employee may be reassigned "for that school year to any school or facility within such division, provided no change or reassignment during a school year shall affect the salary of such employee for that school year." Accord Va. Code Ann. § 22.1-297.
20. At no time prior to the change was Plaintiff informed by Perry or Farmer that he was going to be reassigned as a result of any problems or concerns with Plaintiff's performance as Director of Special Education.
21. On October 28, 1999, Plaintiff was presented with a new job description that included some duties and responsibilities he had previously been assigned as Director as well as some additional duties Coleman had been assigned as Supervisor.
22. The Plaintiff expressed concern that the additional duties included his direct supervision of teachers that he had not done since 1981. He also requested that he be compensated for taking on the additional duties that had been assigned, including his required preparation of so-called Section 504 reports.
23. While it was part of the Plaintiffs new responsibilities to supervise teachers, he was not required to supervise other professional staff within the administrative offices of the School Board.
24. Perry refused to discuss with the Plaintiff his reassignment.
25. Farmer and Perry both agreed at some point upon the Plaintiffs request to provide him with a letter of recommendation, but they later declined, without explanation, to do so.
26. The Plaintiff requested an opportunity to appear before both Perry and the School Board to discuss what he perceived to be his improper demotion, but he was never permitted the opportunity to do so before his departure.
27. The Plaintiff tendered his notice of retirement on February 18, 2000, and thereafter retired from the Mecklenburg County School System on March 1, 2000.
Plaintiff apparently held a license effective July 1, 1989, through July 1, 1994, to teach or hold the positions of secondary school principal, director of instruction, general supervisor, elementary school principal, elementary school supervisor, assistant superintendent for instruction, and English. Effective July 1, 1999, through June 30, 2004, Plaintiff obtained a postgraduate professional license which includes the position of supervisor of special education. (Exs. 7 10 attached to Def.'s Mot. Summ. J.).
(Exs. 2 5 attached to Def.'s Mot. Summ. J.).
The Plaintiff asserts that there are numerous disputed material facts that preclude summary relief, including the proper characterization of the change in positions; whether, when, and how the reasons for the position change were made; whether the Plaintiff "complained" about his compensation given his new duties and the timing of an assignment to revise the special education handbook; whether the May 2000 review by the state Department of Education was based on his proposals as opposed to some other source; and whether he applied for retirement benefits immediately upon the position change for the reasons asserted by the Defendant.
The Court finds that such self-serving assertions constitute either broad characterizations that are not relevant to the resolution of the motion or that they otherwise do not involve disputed material fact that precludes summary relief. Whether the Plaintiff suffered an adverse employment action is properly determined on the basis of the Plaintiffs undisputed credentials and past experience, coupled with an examination of his employment contract and the statutory authorization regarding reassignment of school system employees, not whether or how the reassignment may have been explained to the Plaintiff. Furthermore, whether the Plaintiff "complained" about compensation and the assignment to revise a handbook, whether his personal efforts led to the state education department review, and whether he sought retirement immediately upon the position change for the reasons attributed to him do not constitute material facts. This is especially so in light of the fact that the Plaintiff admits he sought additional compensation, objected to the timing of the proposed handbook revision, sought to retire immediately, and the Court accepts as true that his input generated the review in 2000 for whatever relevancy that may have in the analysis of the motion. Simply put, there is no genuine dispute of material fact precluding summary relief, only a difference of interpretation concerning extraneous circumstances.
Analysis Gender Discrimination
As a preliminary matter, the Plaintiff has moved that the Defendant's Motion for Summary Judgment be stricken for failure to comply with the page requirements of Local Rule 7(E)(3). (Pl.'s Opp'n to Def.'s Mot. Summ. J. at 12). Defendant's brief is seventeen pages too long. While the drastic remedy of striking the pleading is authorized and the pleading needlessly exceeds that permitted by the Rule, the memorandum in support of the motion is helpful to the Court in resolving the issues before it. Therefore, Plaintiff's motion to strike the pleading should be DENIED. However, Defendant is admonished that in the future leave to file must be granted before submitting a document in excess of the prescribed page limit. For future reference, Defendant also misreads Local Rules 8(E)(3) and 56. While the page limit requirement is often liberally construed by the Court, the separate statement of facts not in dispute is most certainly part of a party's brief and not just "supporting documentation." (Def.'s Rebuttal at 3).
To prevail in a gender discrimination claim, a plaintiff must establish a prima facie case of illegal discrimination by establishing that the employer acted with such intent either by direct evidence or by indirect evidence that permits an inference of illegal discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In this case, the Plaintiff has not presented direct evidence of discrimination and therefore he must show that: (1) he is a member of a protected class; (2) he suffered an adverse employment action; (3) he was performing at a level that met the employer's expectations at the time the adverse action took place; and (4) the adverse employment action occurred under circumstances that give rise to an inference of unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792. Defendant concedes the first prong of the McDonnell Douglas test, but argues that the Plaintiff did not suffer an adverse employment action; that he was not performing at a level that met the employer's expectations at the time the reassignment took place; and that the circumstances involved do not otherwise give rise to an inference of unlawful discrimination.
The Plaintiff urges that a statement attributed to Perry at a staff meeting in July 1998 that she preferred female administrators to male counterparts provides direct evidence of gender discrimination. The comment, even accepting as true that it was made, is too innocuous in content and remote in time to constitute direct evidence of discrimination related to the events in question. See Brinkley v. Harbour Recreation Club, 180 F.3d 598, 611 (4th Cir. 1999); Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995).
With respect to the second required element, the Plaintiff alleges that he suffered an adverse employment action because he was functionally demoted from Director to Supervisor of Special Education. Specifically, he notes that he was replaced by Coleman, a woman who previously reported to him, while he was compelled to assume the position previously held by her — a so-called "flip-flop": "[when] your assistant is put over top of you, you are demoted." (Pl.'s Opp'n to Def.'s Mot. Summ. J. at 13, citing to Def.'s ex. 30 at 24). The Plaintiff emphasizes that because he did not supervise any staff, was assigned additional duties and responsibilities previously assigned to Coleman or an assistant superintendent, had received consistent satisfactory job performance evaluations in his prior roles, and had not been given an explanation for the change other than the Superintendent simply preferred Coleman, he suffered an adverse employment action that substantially altered his responsibilities constituting demotion or dismissal.
An adverse employment action is defined in Title VII as failing or refusing to hire or to discharge any individual, or otherwise to 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.
The Defendant responds that there was no adverse employment action because the Plaintiff's employment contract and state law provided the Superintendent with the absolute right to reassign him at any time as long as there was no reduction in compensation for the year of the change. The Defendant also emphasizes the changes in the Plaintiff's job responsibilities remained among the most important duties in the Special Education Department even though he no longer filled the primary leadership role.
The Court recommends finding that the Plaintiff did not suffer an adverse employment action of the type and nature sufficient to establish the necessary prima facie case. First, there is nothing to confirm that Coleman had been the Plaintiff's assistant so that a switch of the job titles necessarily constituted a promotion for her and demotion for him. Although Coleman reported to the Plaintiff for a period of time, that fact alone does not, per se, establish that the one position was "over" the other, especially given what must be seen as Coleman's superior educational credentials and greater breadth of experience in special education. (Coleman resume, ex. 47 attached to Def.'s Mot. Summ. J.). Furthermore, although the reassignment of the Plaintiff did not include continuing supervision of Coleman, his supervisory responsibilities were expanded, not reduced, to include the supervision of individual teachers and various related instructional duties. There was also no adverse impact on the Plaintiff's compensation level. Although Coleman apparently told the Plaintiff that she expected to be earning more as Director the following year than he would as Supervisor, such an expectation is too speculative to be dispositive and would not be prohibited by the controlling contractual, policy, and state law mandates in any event.
In fact, it appears that both Coleman and the Plaintiff were slated to receive increases the following year with no salary disparity between them. Hill Aff. at ¶ 5.
An adverse employment action must have been "ultimate" and "tangible" in nature, constituting "significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits" violative of Title VII proscriptions. Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998) (emphasis added); see also, Munday v. Waste Mgmt. of North America Inc., 126 F.3d 239, 242 (4th Cir. 1997) (holding that where challenged retaliatory acts were not ultimate, if the plaintiff offered sufficient evidence that the employer's acts still "adversely affected" the "terms, conditions, or benefits" of employment, such action may reach the threshold for finding it was an adverse employment action).
The evidence on record in this case, and especially the deposition testimony, demonstrates that although Perry's decision was a surprise to the Plaintiff and he felt humiliated, it did not constitute an adverse employment action as defined by statute and case precedent. It may very well be that the reassignment decision was not presented or delivered with the utmost tact under the circumstances, especially as it concerned a valued and dedicated professional who had provided loyal service for over twenty years. However, the Plaintiff's reassignment was not an action that meets any of the statutory definitions for an adverse action, including that which may be deemed to involve "significantly different responsibilities." Burlington Indus. v. Ellerth, 524 U.S. at 761, accord Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001).
The Plaintiff complains that he was never given a suitable explanation for the reassignment, nor was he ever told about any proposed reorganization of the Department and why he was not considered qualified to lead the project. If the Plaintiff were able to make out a prima facie case, then any conflicting explanations for the reassignment by the Defendant may be construed by the fact-finder as evidence of an after-the-fact excuse offered in an effort to conceal an illegal employment decision. Contradictions between an employer's proffered explanation and earlier contemporaneous statements can constitute convincing evidence of pretext. See e.g., Alvarado v. Bd. of Trustees of Montgomery Cmty. College, 928 F.2d 118, 122-23 (4th Cir. 1991) (noting that a conflict between the reason given by the employer at trial for firing plaintiff and the reason given at the time of termination established the former as pretextual). While the contemporaneous explanations in this case were brief, if not curt, they were not inconsistent with the explanations offered later. From viewing all the evidence, it is apparent to the Court that no explanation would have suited Plaintiff. Though there may have been a more sensitive way of handling the situation, it was within the absolute power of the Superintendent to reassign the Plaintiff as she did without an explanation that would be subjectively acceptable to him. Collins v. Wilson County Bd. of Education, 1996 U.S. App. LEXIS 10057 (4th Cir. 1996)(unpublished).
The Court is not sure whether any explanation would have sufficed. To this day, it appears that the Plaintiff does not understand or recognize the magnitude of the issues that were identified for immediate corrective action by the OCR investigation while he was acting as Director and well before his reassignment. There is no doubt the Plaintiff "put in the hours" (fifty-plus per week), but the specified problem of over-identification of minority students in the Department and self-contained special educational classrooms persisted unabated and unaddressed during his tenure.
Sensitivity is not a requirement under either federal or state law, nor is it an express or implied term in the Plaintiff's employment contract. Ultimately, the simple fact of the matter is that the Plaintiff's employment contract, School Board policy, and state law permitted the Superintendent to make the employment decision in the way she did. Va. Code Ann. §§ 22.1-293, 22.1-297; ex. 15 attached to Def.'s Mot. Summ. J. Accordingly, because the Plaintiff cannot establish that he suffered an adverse employment action, he fails to establish a prima facie claim of gender discrimination and it is therefore unnecessary to consider the remaining elements of the McDonnell Douglas analysis.
Constructive Discharge
Defendant argues that the Plaintiff's claim of constructive discharge is barred because he failed to raise it in his initial EEOC complaint. (Def.'s Mot. Summ. J. at 24) (citing Alexander v. Gardner-Denver, 415 U.S. 36, 47 (1994)). While the Defendant has put forth a strong argument, the Court finds that the argument asserting constructive discharge is sufficiently related to the original complaint that the Plaintiff was demoted in favor of a female to sustain the present claim. See Evans v. Tech. Applic. Serv. Co., 80 F.3d 954, 962-3 (4th Cir. 1996) (holding that a claim stated in the initial charge or reasonably related to it may be maintained in a subsequent action).
A constructive discharge claim requires a plaintiff to establish intolerable working conditions and a deliberate effort by the employer to force the employee to quit. Johnson v. Shalala, 991 F.2d 126, 131 (4th Cir. 1993) (citing Bristow v. Daily Press, Inc. 770 F.2d 1251, 1255 (4th Cir. 1985)). First, Plaintiff claims his working conditions were made intolerable because he was "suddenly `re-assigned' to a position for which he was not qualified, i.e. he had not performed the job of supervising teachers since 1981" which was also "career-ending." (Pl.'s Opp'n to Def.'s Mot. Summ. J. at 22). Plaintiff asserts that his job was also made intolerable by having to assume the responsibility of completing section 504 reports and updating the Special Education Teacher Handbook under the IDEA of 1997 prior to the promulgation of the Virginia rules. (Spain Aff. ¶¶ 74-76). Plaintiff likewise insists that Coleman's statements to him that he was "handling the reassignment better than she would . . . if what happened to [Plaintiff] happened to [Coleman] she would be mad and quit" and that she expected him to leave were intended to force him to quit. (Spain Aff ¶¶ 69-72). Plaintiff also felt that Coleman left a position vacancy announcement on his desk that was intended to force him to leave.
Case law reveals that plaintiffs who have succeeded on claims of intolerable working conditions have endured calculated efforts by employers that would force a reasonable person to resign because the employer imposed "unreasonably harsh conditions, in excess of those faced by his co-workers." Bristow v. Daily Press, Inc., 770 F.2d at 1255. At the same time, the courts have uniformly recognized that a plaintiff cannot be compensated for the frustrations, challenges, and disappointments that inure to every job. Id. When viewing all the evidence and allegations in this case in the light most favorable to the Plaintiff, the conclusion is clear that at most he suffered a major disappointment, not a career-ending blow which was unreasonably harsh or in excess of what could normally be expected by co-workers. Id. No reasonable fact-finder could construe Plaintiff's claim to be more than a situation involving crushed pride. A person of Plaintiff's education and experience — not to mention that he was under a contract that provided for the action taken — should have been able to transition to the position of supervisor to which he was reassigned without feeling that he was placed in an intolerable situation. SeeId. at 1256.
Moreover, even accepting as true all the statements attributed to Coleman, it is obvious that the Plaintiff was not subjected to calculated efforts to force him to resign. Coleman's statements were objectively benign. It is obvious from the pleadings and evidence on the record that the Plaintiff made his displeasure with the reassignment a matter of public discussion within the school system and the community. By alerting Plaintiff to a special education administrator position opening, Coleman was giving Plaintiff neutral information about a job opening for an administrator of his qualifications and experience. Clearly, it was, as he has said throughout his pleadings, his goal. There is nothing pled that could remotely cause a fact-finder to render a decision in Plaintiff's favor on this issue because it is a typical example of a plaintiff whose own subjective sensitivity to a major disappointment was the reason for him to retire voluntarily. Id.
Procedural Due Process Violation
Plaintiff claims that his job duties were substantially changed which was the functional equivalent of a dismissal requiring two weeks notice and an opportunity to be heard pursuant to state law and his contract. Plaintiff argues that the deprivation of procedural due process was a violation of his constitutional rights under the Fourteenth Amendment and 42 U.S.C. § 1983.
Section 1983 provides in pertinent part
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.
To succeed on a procedural due process claim, the Plaintiff must prove that he has been deprived of a property or liberty interest secured by the Constitution. Bd. of Regents v. Roth, 408 U.S. 564, 569-70 (1972). An individual's property right to employment is created by state law when such employee has a "legitimate claim of entitlement to it." Id. at 577-78;Royster v. Anderson County School Dist., 774 F.2d 618, 620 (4th Cir. 1985). In this case, the Plaintiff had a protected property interest in receiving due compensation for his employment by the School Board by virtue of his contract for the 1999-2000 school year. Wooten v. Clifton Forge School Bd., 655 F.2d 552 (4th Cir. 1981). However, as previously discussed, Plaintiff's arguments that he was dismissed or even functionally dismissed by the changes in his duties or that he had a protected property interest in his job as Director of Special Education fail. Those factors rebut his due process argument as further buttressed by the fact that the Plaintiff had no right under his contract, School Board policy, or state law to maintain the duties, the title, or even to physically possess a job. Royster v. Anderson County School Dist., 774 F.2d at 621.
Defendant argues that it is unclear whether Plaintiff had a property interest in his position because he was not a teacher covered by Va. Code Ann. § 22.1-307 nor did his contract provide that he could be terminated for just cause. (Defs.' Mot. Summ. J. at 43). This argument is unpersuasive. Plaintiffs contract covered the terms of his employment for which the School Board could pursue its breach remedies — including termination if Plaintiff failed to meet the School Board's performance standards. Royster v. Anderson County School Dist., 774 F.2d 618, 620 (4th Cir. 1985). What is persuasive is that Plaintiff did not have right to possess specific duties, a specific title, or even his job as long as the School Board was "willing to compensate the employee in full." Id. at 621. The fact that Plaintiff's duties, but never his salary, changed does not impact on any property interest in employment under the facts of this case. Id.
See, supra, note 9.
Breach of Contract
Plaintiff argues that his position as Director of Special Education was a term of his employment contract and that his reassignment amounts to a breach of the contract by the School Board. (Pl.'s Opp'n to Def.'s Mot. Summ. J. at 23-24.) In a contract dispute, "only an unambiguous writing justifies summary judgment . . ." and, therefore, as a threshold consideration, a court must find as a matter of law that a contract is unambiguous on its face in order to grant summary judgment. World-Wide Rights Ltd. V. Combe, Inc., 955 F.2d 242, 245 (4th Cir. 1992). For the writing to be unambiguous there must not be "more than one permissible inference as to intent to be drawn from the language employed," otherwise "the question of the parties' actual intention is a triable issue of fact." Bear Brand Hosiery Co. v. Tights, Inc., 605 F.2d 723, 726 (4th Cir. 1979).The Court must apply the law of Virginia to this issue which requires that the contract be construed by "the intention of the parties as expressed by them in the words they have used."Dominion Savings Bank v. Costello, 257 Va. 413, 415, 512 S.E.2d 564, 566 (Va. 1999); accord Landsowne Development Co. v. Xerox Realty Corp., 257 Va. 392, 399, 514 S.E.2d 157, 161 (Va. 1999). Further, a court construes the contract language under the plain meaning rule "[w]here an agreement is complete on its face, is plain and unambiguous in its terms, the court is not at liberty to search for its meaning beyond the instrument itself." Westbury Coal Mining Partnership v. J.S. K. Coal Corp., 233 Va. 226, 229, 355 S.E.2d 571, 572 (Va. 1987) (reversing the decision of a chancellor who had read into an agreement exclusions which did not exist); Dominion Savings Bank v. Costello, 257 Va. at 416, 512 S.E.2d at 566. Only if the writing is ambiguous may the court consider parole evidence. Cascades North Venture Ltd. v. PRC. Inc., 249 Va. 574, 579, 457 S.E.2d 370, 373 (Va. 1995) (citingAmos v. Coffey, 228 Va. 88, 91-92, 320 S.E.2d 335, 337 (1984) for the rule that where a writing is explicit, it is the sole memorial and the sole evidence of the agreement, therefore no parole evidence can be used to explain written terms). A party cannot force an ambiguity simply by disagreeing with an otherwise unambiguous term. Stuarts Draft Shopping Ctr., L.P. v. S-D Assoc., 251 Va. 483, 488, 468 S.E.2d 885, 888 (Va. 1996).
The disputed contract in this case is the Annual Contract with Professional Personnel executed in 1972, together with an Annual Supplement to Continuing Contract with Professional Personnel Year 1999-2000 dated, but not signed, beginning July 1, 1999. (Contract) (Exs. 13 14 attached to Def.'s Mot. Summ. J.).
Despite the annual supplement, the Plaintiff's employment contract may be antiquated but it is not ambiguous. The contract provides that Plaintiff shall "perform such duties . . . as are deemed necessary by the school board and superintendent for the efficient and successful operation of the school system" and "comply with all school laws, State Board of Education regulations." The contract also provides that the Superintendent shall "have authority to assign to their respective positions in the school wherein they have been placed by the school board all teachers, including principals, and may, with the approval of the school board, reassign any teacher or principal to any school within such division; provided no change or reassignment shall adversely affect the salary of such teachers." Finally, the contract allows the School Board, upon recommendation by the Superintendent, to dismiss Plaintiff "as provided by law, after having given two weeks notice in writing and an opportunity to be heard."
This incorporated contract lends itself only to one reasonable reading, and despite Plaintiff's tenacious effort to extract some material fact in dispute and to advance other meanings to it, the Court finds it is unambiguous on its face. Id. The standard is where there is more than one permissible reading, it becomes a question for a trier of fact, not whether there are any other possible readings. Bear Brand Hosiery Co. v. Tights, Inc., 605 F.2d at 726.
Plaintiff also argues that his title is a specific term of his employment that he was entitled to retain "for 261 days beginning July 2, 1999." (Pl.'s Opp'n to Def.'s Mot. Summ. J. at 23-24.) He asserts that by removing him from this position, he was dismissed and that by failing to provide notice and a hearing, or prematurely removing his title, the School Board breached its contract with him. Although the contract does not define reassignment, it provides that "all teachers and principals" may be reassigned as long as the salary is unchanged for the remainder of the life of the contract. Since Plaintiff's original 1972 title of "principal" was modified by later supplements, his title of Director must be read into the relevant portions of the contract to avoid rendering the contract meaningless. The Court is directed by Virginia law to render this conclusion. Wooten v. Clifton Forge School Bd., 655 F.2d at 620-21 (holding that principal who was demoted to teacher with a cut in pay was not dismissed, nor did he have a protected interest in his position and pay as principal, under relevant provisions of his contract read together with state law permitting such summary reassignment); and Royster v. Anderson County School Dist., 774 F.2d at 621 (holding that it was proper for the superintendent of schools to be dismissed for the remainder of his contract term when compensation was paid to him for the full term).
Because the Plaintiff voluntarily terminated his employment and was not dismissed; because he had no right to physically possess his job, let alone the title as director; and because he was not entitled to an explanation for, or hearing regarding his reassignment, the School Board did not breach any terms of his contract.
Conclusion
For the reasons stated, it is recommended that the Defendant's Motion for Summary Judgment be GRANTED as to all of the Plaintiff's claims.
Let the Clerk of the Court forward a copy of this report to the Honorable Robert E. Payne and all counsel of record . .
It is so ORDERED.