Dugan v. Albemarle Cnty

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LINDA J. DUGAN, 

Plaintiff-Appellant,

v.  No. 01-1935

ALBEMARLE COUNTY SCHOOL BOARD,

Defendant-Appellee.



Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

James H. Michael, Jr., Senior District Judge.

(CA-99-35-3)

Argued: May 8, 2002

Decided: June 17, 2002

Before NIEMEYER and MOTZ, Circuit Judges, and

C. Arlen BEAM, Senior Circuit Judge of the

United States Court of Appeals for the Eighth Circuit,

sitting by designation.

Affirmed by published opinion. Senior Judge Beam wrote the opin-

ion, in which Judge Niemeyer and Judge Motz joined.

COUNSEL

ARGUED: Dexter Brock Green, JONES & GREEN, L.L.P., Char-

lottesville, Virginia, for Appellant. John Lester Cooley, Jr., WOO-

TEN & HART, P.C., Roanoke, Virginia, for Appellee. ON BRIEF:

John Mark Cooley, WOOTEN & HART, P.C., Roanoke, Virginia, for

Appellee.

2 DUGAN v. ALBEMARLE COUNTY SCHOOL BOARD

OPINION

BEAM, Senior Circuit Judge:

Linda Dugan, a fifty-three-year-old white female physical educa-

tion (PE) teacher, claims that the Albemarle County School Board

subjected her to invidious discrimination in violation of 42 U.S.C.

§ 2000e et seq. and 42 U.S.C. § 1981a et seq. (Title VII) and 29

U.S.C. § 621 et seq. (ADEA). For the reasons that follow, we dis-

agree.

I.

In the spring of 1998, plaintiff Dugan was employed at Cale Ele-

mentary School. At that time Cale Elementary had three full-time PE

teachers: Edwin Hudgins, a continuing contract (tenured) teacher, and

Ms. Dugan and Steve Ivory, a thirty-four-year-old black male, both

probationary employees. Gerald Terrell, a black male, was principal

of Cale School, and Sue Ann Newman, a white female, was assistant

principal.

In response to statutory requirements enacted by the Virginia Leg-

islature, the State Board of Education mandated that seventy-five per-

cent of class time had to be spent on core academic subjects in order

to increase the students’ standardized test scores, or "Standards of

Learning" (SOLs). Mr. Terrell was notified by the school board that

the Functional Teaching Equivalents (FTEs), a number equating to

the number of full-time teaching positions available for Cale’s PE,

music and art programs, would be reduced for the following academic

year to accommodate the mandate. As a result, Mr. Terrell reduced

the number of FTEs allocated to the PE department from 3.0 in 1997-

98 to 2.5 in 1998-99.

All teaching contracts in the Albemarle School System are either

continuing or probationary. Because Mr. Hudgins was tenured, he

retained his full-time status and was given a 1.0 FTE. Mr. Terrell allo-

cated the remaining 1.5 FTEs between probationers Dugan and Ivory,

giving each a part-time position at 0.75 FTE. This latter, disputed

allocation is the basis for this lawsuit.

DUGAN v. ALBEMARLE COUNTY SCHOOL BOARD 3

Ms. Dugan was ending her second year of full-time teaching at

Cale in the 1997-98 term. She needed three consecutive years of full-

time employment to achieve continuing/tenured status. The reduction

to part-time work kept Ms. Dugan from reaching this professional

goal. Fortunately, she attained full-time employment in another

county and was able to start anew in her quest for the continuing con-

tract classification.

Ms. Dugan contends that in allocating the positions, Mr. Terrell

had an obligation to apply established policies and procedures for

reduction-in-force (RIF) situations. She argues that if Mr. Terrell had

done so, she, as the teacher senior in service, would have been given

a full-time teaching position for the 1998-99 school year, and Mr.

Ivory a half-time position. Ms. Dugan further argues that Mr. Terrell

did not apply the RIF policies and procedures and failed to give her

a full-time position because of her age, race, and sex.

The school board’s proferred reason for the equal split of the

remaining 1.5 FTEs is that the schedule would not work with two

full-time teachers and one half-time teacher. Testimony of Mr. Terrell

and Ms. Newman corroborates this fact. Ms. Newman stated that she

could not schedule a PE teacher half-time because the schedule man-

dated that someone teach PE at 11:15 a.m. and possibly 11:45 a.m.,

whereas a half-time teacher would leave at 11:22 a.m. Mr. Terrell

admitted that he saw no reason to take seniority into account because

he knew that faced with this scheduling problem neither Ms. Dugan

nor Mr. Ivory would get a full-time job and he needed to split the

remaining FTEs in half anyway.

Ms. Dugan also introduced additional circumstantial evidence

regarding her claim of discrimination based on race and sex. Appar-

ently, Mr. Terrell and Mr. Ivory were close friends. The two had been

acquainted for several years, and they socialized outside of work. Mr.

Ivory even cut Mr. Terrell’s hair. Further, Ms. Dugan alleges that

when Mr. Ivory obtained a job as the track coach at a nearby high

school and was later asked to teach PE as well, Mr. Terrell rearranged

Mr. Ivory’s teaching schedule at Cale Elementary, allowing Mr. Ivory

to leave Cale at approximately 1:15 p.m. each day. This accommo-

dated Mr. Ivory’s work at the high school in the afternoons so that he

could obtain full-time status. Ms. Dugan also alleges that Mr. Terrell

4 DUGAN v. ALBEMARLE COUNTY SCHOOL BOARD

made no similar efforts on her behalf, and the fact that Mr. Ivory

obtained full-time status between two schools run by black principals,

one an individual with whom he had a personal relationship, leads to

the inference that she was the victim of unlawful discrimination.

The defendant moved for summary judgment on Ms. Dugan’s

claims in the district court. The magistrate judge recommended denial

of that motion but the district court declined to follow the report and

recommendation and entered summary judgment in favor of the

defendant. In its opinion, the district court held that Ms. Dugan satis-

fied the minimal requirements necessary to establish a prima facie

case. The court also determined that the defendant met its burden of

articulating a legitimate, non-discriminatory reason—that the school

was prohibited from reducing the hours of Hudgins, the tenured

teacher, and that it was unable to split the remaining 1.5 FTEs into

one full-time and one half-time position because that would have left

PE students without supervision from 11:22 a.m. until 12:45 p.m.

each day. The district court also determined that Ms. Dugan did not

meet her burden of proving that the defendant’s "proferred reason [for

her reduction] was mere pretext and that race, age, or gender was the

real reason she was denied full-time employment."

We review the district court’s summary judgment decision de

novo, viewing the record in the light most favorable to the nonmoving

party, here Ms. Dugan. Bryant v. Bell Atlantic Maryland, Inc., 288

F.3d 124, 132 (4th Cir. 2002). Rule 56(c) of the Federal Rules of

Civil Procedure provides that 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(c).

II.

Under a somewhat modified McDonnell Douglas framework,1 in

1

The traditional McDonnell Douglas framework is slightly changed in

a RIF case. Normally, the plaintiff in a discrimination-in-hiring context

has to prove that (1) she belongs to a protected class, (2) she applied and

was qualified for a job for which the employer was seeking applicants,

(3) despite her qualifications, she was rejected, and (4) after her rejec-

DUGAN v. ALBEMARLE COUNTY SCHOOL BOARD 5

order to establish a prima facie case of discrimination in a RIF context

where the plaintiff is not discharged entirely, Ms. Dugan had to estab-

lish (1) that she was in a protected class, (2) she was selected for

demotion, (3) she was performing her job at a level that met the

employer’s expectations, and (4) that her employer did not treat the

protected status neutrally, or there were other circumstances giving

rise to an inference of discrimination. See, e.g., McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973); EEOC v. Sears Roebuck

and Co., 243 F.3d 846, 851 n.2 (4th Cir. 2001) ("What is critical with

respect to the fourth element is that the plaintiff demonstrate he was

not hired (or fired or not promoted, etc.) ‘under circumstances which

give rise to an inference of unlawful discrimination.’") (quoting Texas

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)); Conk-

wright v. Westinghouse Elec. Corp., 933 F.2d 231, 234 (4th Cir.

1991).

A similar analysis is conducted for Ms. Dugan’s claim of age dis-

crimination, except that the fourth element is satisfied with proof of

replacement by a substantially younger worker—not proof of replace-

ment by someone entirely outside the ADEA’s protected class. Stokes

v. Westinghouse Savannah River Co., 206 F.3d 420, 430 (4th Cir.

2000) (applying the McDonnell Douglas framework in the context of

an age discrimination, RIF termination case where performance was

the announced basis for the selection of employees).

Once Ms. Dugan establishes a prima facie case, the school board

must present a legitimate, non-discriminatory reason for the employ-

ment action. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

254 (1981). If the school board meets its burden of production, the

presumption raised by the prima facie case is rebutted and "drops

from the case," id. at 255 n.10, and Ms. Dugan then bears the ultimate

burden of proving that she has been the victim of intentional discrimi-

tion, the position remained open and the employer continued to seek

applicants from persons with her qualifications. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973). There are now variations of

this basic framework depending on the statute involved and the nature of

the claim of discrimination. Rowe v. Marley Co., 233 F.3d 825, 829 (4th

Cir. 2000).

6 DUGAN v. ALBEMARLE COUNTY SCHOOL BOARD

nation. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 142-43 (2000). That is, Ms. Dugan may show that the employ-

er’s proffered explanation is unworthy of credence, thus supporting an

inference of discrimination, or offer other forms of circumstantial evi-

dence sufficiently probative of intentional discrimination. Id. at 147.

Even Ms. Dugan’s "prima facie case, combined with sufficient evi-

dence to find that the [school board’s] asserted justification is false,

may permit the trier of fact to conclude that the [school board] unlaw-

fully discriminated." Id. at 148.

Although a very close question, we assume that Ms. Dugan satis-

fies the requirements necessary to establish a prima facie case of dis-

crimination. She certainly meets factors one through three. She is a

white female in a protected age class, who apparently met the expec-

tations of the school board as a PE teacher, and whose hours were

reduced as a result of the RIF. And, if we also assume for purposes

of summary judgment that there is a policy directly applicable to this

RIF situation, and that the policy is as asserted by Ms. Dugan, and we

think it is, she meets the fourth element as well. This is because the

favored employee, Mr. Ivory, as compared with the more senior Ms.

Dugan, is a younger, black male.2

The school board maintains that it needed to create blocks of time

in the schedule to focus on core SOL curriculum. It further argues that

Mr. Terrell simply could not allocate the 2.5 FTEs in PE to include

two full-time teachers and one half-time teacher because of class

scheduling constraints resulting from these SOL requirements. Depo-

sition testimony supports the school board’s assertion that Mr. Terrell

2

Ms. Dugan further advances, as other circumstances giving rise to an

inference of discrimination under prong four, that Mr. Terrell was black,

he gave 0.25 of Ms. Dugan’s time to Mr. Ivory, also a black male and

a friend of Mr. Terrell’s, and that Mr. Ivory later obtained full-time status

with the school board with help from Mr. Terrell’s rescheduling, while

Ms. Dugan as the more senior white female was reduced to part-time.

This evidence does not support an inference that Mr. Terrell failed to

treat the protected status neutrally or give Ms. Dugan a full-time position

because of her age, race or sex. However, because we assume for pur-

poses of this appeal that there is a RIF policy in existence as claimed by

Ms. Dugan, we need not address this issue.

DUGAN v. ALBEMARLE COUNTY SCHOOL BOARD 7

could not allocate the 2.5 FTEs as Ms. Dugan would have preferred.

Whether true or not, we must assume, given the evidence presented,

that the school board meets its initial burden. Sears, 243 F.3d at 852.

Thus, the remaining question is whether Ms. Dugan presents evi-

dence to discredit the school board’s proffered nondiscriminatory rea-

son and, if so, whether it leads to the inference that a likely alternative

explanation is purposeful discrimination. Id. at 854; Rowe, 233 F.3d

at 829. "While the elements of a prima facie case differ depending on

the statute and the nature of the claim, proving a discrimination claim

under any of these federal statutes requires a showing that an employ-

er’s asserted non-discriminatory reason for the challenged employ-

ment action is actually a pretext." Rowe, 233 F.3d at 829.

Ms. Dugan states that the school board’s proferred reason only

explains why it was necessary to do a RIF and does nothing to explain

how Mr. Terrell was to allocate the 2.5 FTEs. We again disagree. The

school board clearly articulates its scheduling limitations resulting

from the new SOL requirements. Further, Ms. Dugan rests her argu-

ment on the contention that Mr. Terrell’s failure to apply the manda-

tory personnel policies creates an actionable inference of

discrimination. This, according to Ms. Dugan, is because Mr. Terrell

had no authority to use his own discretion to allocate the remaining

1.5 FTEs until he had first complied with the RIF policies.

It is true, according to Mr. Terrell’s testimony, that the school did

not take seniority into account when allocating the remaining FTEs

between Ms. Dugan and Mr. Ivory. However, whether Mr. Terrell

was legally required under Virginia law to apply the RIF policy in this

instance is not before us. The issue is whether Mr. Terrell’s failure to

apply the RIF policy was due to legitimate pedagogical concerns or

his discriminatory animus toward Ms. Dugan. Our sole concern is

whether Mr. Terrell’s reasons for reducing Ms. Dugan’s hours vio-

lated federal anti-bias statutes. Hawkins v. PepsiCo, Inc., 203 F.3d

274, 280 (4th Cir. 2000).

In response to the school board’s evidence, Ms. Dugan asserts that

Mr. Terrell never tried to work out any other teaching schedule, this

error purportedly supporting an inference of invidious discrimination.

She also maintains that the court should require the school board to

8 DUGAN v. ALBEMARLE COUNTY SCHOOL BOARD

illustrate why its goals could not be met with her solution. This, of

course, misses the mark. It is Ms. Dugan’s burden to create an infer-

ence that the school board’s reason is a pretext for discrimination, see

Reeves, 530 U.S. at 147, an inference we cannot detect in this case.

Even if there is evidence that the school board erroneously or even

purposely misapplied the RIF policy, it is not proof of unlawful dis-

crimination. Ms. Dugan’s assertions of discrimination in and of them-

selves are simply insufficient to counter unrebutted evidence of

legitimate, nondiscriminatory reasons for an adverse employment

action. Williams v. Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir.

1989). "‘[I]t is not our province to decide whether the reason was

wise, fair, or even correct, ultimately, so long as it truly was the rea-

son for the plaintiff’s [adverse employment action].’" DeJarnette v.

Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (quoting Gian-

nopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 411 (7th

Cir. 1997)). At the end, the burden remains on Ms. Dugan to demon-

strate that the reasons offered by the school board are a pretext for

discrimination, or stated differently, that the school board’s reason is

unworthy of credence to the extent that it will permit the trier of fact

to infer the ultimate fact of intentional discrimination. See Reeves,

530 U.S. at 147.

Ms. Dugan fails to offer any evidence, direct or circumstantial, that

leads to an inference that Mr. Terrell reduced her status to 0.75 FTEs

because of her age, race or sex. Ms. Dugan claims, for example, that

the fact that Mr. Terrell and Mr. Ivory were social acquaintances, and

the fact that Mr. Ivory, with Mr. Terrell’s help, was able to secure

full-time status within the county school system, supports an implica-

tion of discrimination. But, a personal friendship between the

decision-maker and another individual is insufficient to establish

unlawful discrimination. Autry v. North Carolina Dep’t of Human

Res., 820 F.2d 1384, 1385 (4th Cir. 1987). Both Ms. Dugan and Mr.

Terrell state in their depositions that Mr. Terrell also attempted to

assist Ms. Dugan in obtaining supplemental employment within the

county, which implies Mr. Terrell actually treated Mr. Ivory and Ms.

Dugan similarly. So the fact that Mr. Ivory obtained another job and

Ms. Dugan did not is unremarkable. Finally, even though Mr. Terrell

rearranged Mr. Ivory’s schedule to accommodate Mr. Ivory’s supple-

mental teaching position, Mr. Ivory left Cale Elementary at 1:15 p.m.

DUGAN v. ALBEMARLE COUNTY SCHOOL BOARD 9

each day, a time unaffected by the FTE scheduling restrictions articu-

lated by assistant principal Newman.

In the final analysis, Ms. Dugan presents no facts that tend to show

that she received 0.75 FTEs instead of 1.0 FTE because of her age,

race, or sex. To the contrary, the record supports the school board’s

contention that it could not reasonably reconfigure the schedule to

accommodate Ms. Dugan and core academic requirements.

III.

After review de novo, we agree with the district court’s analysis.

This case is

AFFIRMED.