Coleman v. Loudoun County School Board

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-1312

ESTHER COLEMAN,

Plaintiff - Appellant,

v.

LOUDOUN COUNTY SCHOOL BOARD; EDGAR B. HATRICK; ROBERT F. DUPREE,

JR.; MATTHEW BRITT,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Claude M. Hilton, Senior

District Judge. (1:07-cv-00091-CMH-TCB)

Submitted: August 28, 2008 Decided: September 29, 2008

Before NIEMEYER and MOTZ, Circuit Judges, and WILKINS, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Christopher E. Brown, BROWN, BROWN & BROWN, P.C., Alexandria,

Virginia, for Appellant. Julia B. Judkins, Allyson C. Kitchel,

TRICHILO, BANCROFT, McGAVIN, HORVATH & JUDKINS, P.C., Fairfax,

Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Esther Coleman appeals the district court’s grant of

summary judgment in favor of Loudoun County School Board, Edgar B.

Hatrick, Robert F. DuPree, Jr., and Matthew Britt, her former

employer, on her wrongful termination charge, filed pursuant to

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§§ 2000e to 2000e-17 (2000).1 Coleman, an African-American, was

employed as Director of Personnel Services for the Loudoun County

Public Schools (“LCPS”) for approximately two and a half months.

Coleman alleges that her former employer discriminated and

retaliated against her based on her race.

I.

We review the facts in the light most favorable to

Coleman, because this is an appeal from the district court’s

adverse grant of summary judgment. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986) (noting that all evidence must be

construed in the light most favorable to the party opposing summary

judgment). Britt, Assistant Superintendent for Personnel Services

with LCPS, also an African-American, knew Coleman prior to her

application for employment, sat on the interview panel when she was

interviewed, and advocated for and recommended her hiring to

1

Although Coleman also asserted a claim under 42 U.S.C. § 1983

(2000), the district court held that she abandoned that claim and

Coleman does not contest this determination on appeal.

2

Hatrick, LCPS Superintendent. Hatrick submitted Coleman’s name to

the School Board and recommended her hiring. Coleman began her job

with LCPS on April 22, 2005. Shortly after Coleman began working,

Britt attested that he met with her to tell her that she was not

working long enough hours, as the Personnel Department was

typically busy hiring and replacing new employees during the month

of April. In addition, he sent Coleman a series of emails

beginning on May 5, 2005, expressing questions, concerns, or

comments suggestive of her failure to perform or complete duties

and assignments.

On June 8, 2005, Coleman participated as a member of an

interview panel for the Director of Elementary Education position,

at which two African-American females and two Caucasian males were

considered. One of the females had been solicited to apply for the

position by Coleman. During Coleman’s candidate’s interview, the

candidate told the panel that within a few days she was to be

announced as principal of a new school in a different school

system, and that if she were offered the LCPS position she would

prefer that the job offer be made to her prior to the announcement

of the other position to which she had committed herself.

In discussing the merits of the candidates and their

qualifications, some panel members expressed concern that Coleman’s

candidate was actively interviewing for their position when her

appointment as a principal for a new school had recently been

3

accepted and was about to be announced, as well as the fact that

they would be unable to complete the hiring process in the limited

time period prior to the announcement being made. Coleman

expressed to the panel members that she felt the votes were lining

up against the two African-American candidates and that the panel

had already pre-selected Dr. Martin, the then Assistant Director

for Elementary Education, who ultimately was given the Director

position. There is no dispute that Martin was qualified for the

position.

On June 10, 2005, Britt held a six-week review meeting

with Coleman to discuss her job performance. Britt had given

Coleman two to three-days’ notice of the meeting, and had prepared

a written document outlining the various issues of concern he

wished to address with Coleman at the meeting. During the meeting,

Britt expressed concerns about Coleman’s leadership abilities and

her promptness in responding to requests from superiors. Among the

issues he addressed with Coleman, he expressed concern that she had

been unable to provide him with continually updated data regarding

personnel hires, remaining vacancies, and outstanding offer

letters, which was crucial to the performance of her job.

Coleman, several days prior to her meeting with Britt,

and in apparent concern that Britt would terminate her employment

during the meeting, prepared a document titled “Respect,” which she

gave to a co-worker and which ultimately made its way to Hatrick,

4

Britt’s supervisor, and to Britt himself in mid-June, and caused

Britt to feel as though he had been “betrayed by [his] Director.”2

While both Britt and Coleman felt the June 10, 2005,

meeting went well, Britt continued to have concerns about Coleman’s

job performance as she remained unable to provide him with the

updated data he requested. On June 29, 2005, Coleman emailed Britt

asking for a meeting to discuss her employment. At the meeting on

June 30, 2005, she asked Britt whether he would give her a positive

reference if she resigned. After consulting with Hatrick, Britt

offered Coleman a severance package in exchange for her resignation

that day, which she appeared inclined to accept, making June 30,

2005, her last day on the job. Coleman thereafter chose not to

resign and termination proceedings were commenced. While she

remained on the payroll for several months thereafter, Coleman

actually was on the job for approximately two and a half months,

2

Coleman testified that she prepared the document as a list of

points to cover with Britt at their June 10th meeting, and gave it

to her co-worker to pass along to Hatrick, Britt’s supervisor, in

case she was terminated during her meeting with Britt. The

document reflects dissatisfaction Coleman had with Britt and

accused Britt of not having respect for “human resource learning

and development,” “human resource time,” “human capacity,” “human

unity,” or “human dignity.” In it, Coleman complains, among other

things, that Britt’s tone “can be harsh and threatening,” that he

needs to give “far more praise than criticism in order to motivate

people,” and intimates that he and his management style are

responsible for a lack of motivation by those subordinate to him.

Among the complaints Coleman listed in the document was that she

“[p]ersonally [] did not know until [she] got on the job] that

[she] was expected to regularly work nights and to be at school

board meetings several nights a month.”

5

from April 22 until June 30, 2005, as the Director of Personnel

Services.

Coleman filed a grievance under the Virginia grievance

procedures and, at the conclusion of an extensive fact-finding

hearing, a three member panel3 unanimously concluded that Coleman

had not been discriminated against based on her race or retaliated

against based on her comments made at the June 8, 2005, interview

panel, and that there were justified job performance issues which

formed the basis of Britt’s and Hatrick’s recommendation for her

termination from employment. Following review of the panel’s

report, the School Board met on June 20, 2006, and voted four-to-

one in favor of accepting the recommendation for termination of

Coleman’s employment. Following issuance of a right-to-sue letter

from the Equal Employment Opportunity Commission, Coleman filed the

instant action.

II.

We review de novo the district court’s grant of summary

judgment, applying the same standards that the district court was

required to apply. See Laber v. Harvey, 438 F.3d 404, 415 (4th

Cir. 2006) (en banc). “Summary judgment is appropriate ‘if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

3

The panel included a member selected by Coleman.

6

no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.’” Id. (quoting Fed.

R. Civ. P. 56(c) (West 1992)). The party seeking summary judgment

has the initial burden to show absence of evidence to support the

non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986). The opposing party must demonstrate that a genuine

issue of material fact exists. Mere allegations or denials are

insufficient. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A mere scintilla of evidence supporting the case also is

insufficient. Id.; see also Shaw v. Stroud, 13 F.3d 791, 798 (4th

Cir. 1994). As noted above, we construe the evidence in the light

most favorable to Coleman, the non-moving party, and draw all

reasonable inferences in her favor. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

Coleman’s Complaint alleged that she was subjected to

retaliatory actions4 in violation of her rights under Title VII.

To establish a prima facie case under Title VII for retaliation,

Coleman’s evidence must demonstrate that: (1) she engaged in

protected activity under Title VII; (2) the employer took adverse

employment action against her; and (3) there was a causal

connection between the protected activity engaged in by the

plaintiff and the subsequent action taken by the defendant. See

4

Coleman also alleged claims of a hostile work environment,

which claims likewise were rejected by the district court.

However, she has not raised a challenge to this ruling on appeal.

7

Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004). Assuming

that a prima facie case is established, the burden then shifts to

the employer “to rebut the presumption of retaliation by

articulating a legitimate nonretaliatory reason for its actions.”

Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir.

2007) (internal quotation marks omitted). The burden then shifts

back to the plaintiff “to show that the reason is mere pretext for

retaliation by proving both that the reason was false and that

discrimination was the real reason for the challenged conduct.”

Id. (internal quotation marks omitted).

Here, the district court concluded that Coleman failed to

establish the first and third elements of a prima facie case of

retaliation because there was no protected activity and no causal

connection. In addition, the district court determined that, even

if Coleman had established a prima facie case of retaliation, she

failed to rebut the legitimate, non-discriminatory reasons her

employer had for terminating her. There is no dispute that

Coleman’s termination constitutes an adverse employment action.

Plaintiff asserts that she engaged in protected activity

when she complained to the June 8, 2005, hiring committee that she

believed African-American candidates were being treated unfairly,

and that Defendants retaliated against her complaint by terminating

her employment. To have engaged in a protected activity, a

plaintiff must oppose an “employer’s discriminatory activities.”

8

Laughlin v. Metropolitan Wash. Airports Auth., 149 F.3d 253, 259

(4th Cir. 1998) (internal citations omitted). “[T]o show

‘protected activity,’ the plaintiff in a Title VI retaliation case

need ‘only . . . prove that he opposed an unlawful employment

practice which he reasonably believed had occurred or was

occurring.’” Peters v. Jenney, 327 F.3d 307, 320 (4th Cir. 2003)

(internal citations omitted). This requires that the plaintiff:

(1) have a good faith belief that the employer is engaging in an

unlawful employment practice; and (2) that the belief is

objectively reasonable in light of the facts. Id. at 321.

Here, we agree with the district court that even

assuming, arguendo, that Coleman’s belief was in good faith that

the June 8, 2005, panel members considering the candidates for the

Director of Elementary Education position were discriminating

against the African-American candidates, such belief was not

objectively reasonable. There is no evidence whatsoever, other

than Coleman’s own self-serving, unsubstantiated opinions, which is

insufficient to stave off summary judgment,5 that the panel members

discriminated against the African-American candidates. First,

there is no dispute that Martin was qualified for the job,

particularly in light of the fact that he was then currently

employed as the Assistant Director of Elementary Education for

5

See Williams v. Cerberonics, Inc., 871 F.2d 452, 455 (4th

Cir. 1989).

9

LCPS. Second, there is no evidence that any of the panel

participants had any racial motive in recommending Martin or in

preferring him over any of the other three candidates, whether

African-American or Caucasian, male or female. Finally, the non-

discriminatory reasons the panel chose not to recommend the hiring

of Coleman’s preferred candidate were clear, legitimate, and non-

discriminatory.6 As Coleman failed to establish that her belief

that the panel was discriminating against African-Americans was

objectively reasonable, and thus did not prove the first element of

her prima facie case of retaliation, we need not reach the question

of whether Coleman established the causation element.

Moreover, even if Coleman had established a prima facie

case of retaliation, we agree with the district court that the

6

That is, that the candidate had accepted the appointment as

principal in a new school, that the announcement of that

appointment was about to take place, and that she was interviewing

for another job. In addition to the ethical and loyalty issues

associated with that situation was the issue relative to the

panel’s being able to complete the hiring process within the time-

frame requested by the candidate. Moreover, Coleman’s argument

that the panel’s discomfort with regard to plaintiff’s candidate’s

newly accepted position was evidence of unfair or discriminatory

treatment because the job application asked whether the applicant

preferred not to have LCPS contact their present employer is

without merit. This was not simply a situation where an employee

wished to keep a job search confidential. Rather, it was a

situation where the candidate had recently accepted, with another

school district, a very visible and important position, which

position was about to be publicly announced, only to turn around

and interview with another school district hoping to acquire what

she apparently thought to be a more desirable position. That the

panel was uncomfortable with this situation, especially where

another well-qualified candidate readily was available, is neither

surprising nor does it constitute evidence of discrimination.

10

employer has offered unrebutted legitimate and non-discriminatory

reasons for terminating Coleman. While she disputes the extent,

timing, and particulars of the employer’s complaints with her job

performance,7 she does not dispute that: (1) Britt, her immediate

supervisor, had sent her a series of emails prior to her

participation on the June 8, 2005, interview panel expressing

questions, concerns, or comments suggestive of her failure to

perform or complete duties and assignments; and (2) she was aware

that he had concerns about her job performance several days prior

to their June 10th meeting, and prior to the June 8th interviews,

prompting her to draft the “Respect” document. Nor has Coleman

demonstrated, despite the extensive record in this case, that the

real reason for her termination was racially based. See Holland,

487 F.3d at 218.

Finally, although not relied upon by the district court,

we note that the same people who hired Coleman for the job, Britt

and Hatrick, one of whom also is African-American, made the

decision ultimately to terminate her, thus powerfully undercutting

her claim of racial discrimination. See Proud v. Stone, 945 F.2d

796, 797, 798 (4th Cir. 1991) (reasoning that “[f]rom the

standpoint of the putative discriminator, it hardly makes sense to

7

We find Coleman’s argument that Britt’s failure to follow

specified performance review guidelines somehow demonstrates

pretext and evidence of his intention to discriminate against her

to be uncompelling.

11

hire workers from a group one dislikes . . . only to fire them once

they are on the job” and concluding that “[w]hen the hirer and

firer are the same individual, there is a powerful inference

relating to the ‘ultimate question’ that discrimination did not

motivate the employer.” (internal quotation marks omitted)).

III.

For the foregoing reasons, we affirm the district court’s

grant of summary judgment and dismissal of Coleman’s action. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

12