Rosenbaum v. Board of Trustees

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEONARD L. ROSENBAUM,

Plaintiff-Appellant,

v.

THE BOARD OF TRUSTEES OF

MONTGOMERY COMMUNITY COLLEGE;

THOMAS M. LOGAN, JR., personally;

No. 98-1773

ROBERT E. PARILLA, Dr., personally;

ANTOINETTE P. HASTINGS, Dr.,

personally; FLOYD F. CUMBERBATCH,

Dr., personally; FRANK J. TUSA, Dr.,

personally; ROBERT G. KELLER, JR.,

personally,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

J. Frederick Motz, Chief District Judge.

(CA-97-3540-JFM, CA-95-1959-JFM)

Submitted: February 24, 1999

Decided: March 19, 1999

Before HAMILTON and LUTTIG, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Craig L. Parshall, LAW OFFICE OF CRAIG L. PARSHALL, Freder-

icksburg, Virginia, for Appellant. Charles W. Thompson, Jr., County

Attorney, Karen L. Federman Henry, Principal Counsel for Appeals,

Rockville, Maryland; Darrell R. VanDeusen, Clifford B. Geiger,

KOLLMAN & SHEEHAN, P.A., Baltimore, Maryland; Joan I. Gor-

don, Office of the General Counsel, MONTGOMERY COMMU-

NITY COLLEGE, Rockville, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM

Leonard L. Rosenbaum appeals from the district court's order

granting summary judgment in favor of Defendants in Rosenbaum's

employment discrimination action filed under 42 U.S.C.A. §§ 1981,

1983 (West 1994 & Supp. 1998); Title VII of the Civil Rights Act of

1964, 42 U.S.C.A. §§ 2000e - 2000e-17 (West 1994 & Supp. 1998);

and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111

- 12117 (1994). Finding no error, we affirm.

Rosenbaum is a tenured member of the faculty at Montgomery

College in Rockville, Maryland, where he has been employed since

1967. He is a professor of psychology and served as chair of the psy-

chology department from 1969 until 1980. Thereafter, he was

removed from the chairmanship because of the dissatisfaction of

those within his department. Since that time, Rosenbaum's relation-

ship with the College and a number of its administrators has been

marked by a series of conflicts. Rosenbaum traces the genesis of these

difficulties to 1978, when he alleges that he was instructed to stop hir-

ing Jewish and African-American faculty members. In 1982, Rosen-

baum filed a complaint against Montgomery College with the Equal

Employment Opportunity Commission (EEOC) alleging religious and

sex discrimination (Rosenbaum is a member of the Jewish faith). The

EEOC determined that the allegations lacked credibility and issued

Rosenbaum a right-to-sue letter.

2

Beginning in the Fall of 1990 and continuing through the Summer

of 1993, Rosenbaum was unable to perform his duties as a professor

during a series of lengthy absences resulting from a respiratory illness.1

In 1993, Rosenbaum filed a second complaint with the EEOC alleg-

ing retaliation by the College for his 1982 complaint because of

administrative decisions the College had made regarding Rosen-

baum's leave status. This complaint was dismissed by the EEOC in

March 1995 with another right-to-sue letter, and Rosenbaum filed the

instant action.2 Since that time, Rosenbaum has filed a third EEOC

complaint which was dismissed because of the pending litigation.

Rosenbaum filed an identical suit in the Maryland state court; that

action has been removed to federal court and consolidated with this

matter.

The district court dismissed some of Rosenbaum's claims and

granted him leave to amend his complaint.3 Rosenbaum filed an

amended complaint and Defendants moved for summary judgment on

the remaining claims. The court construed Rosenbaum's remaining

claims as: (1) a Title VII claim against the College for religious dis-

crimination, unlawful discrimination based on Rosenbaum's opposi-

tion to the College's allegedly discriminatory practices, and

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1 Rosenbaum took sixteen days of paid sick leave from 11/08/90-

12/04/90. He was granted eighty hours of advance sick leave on

03/28/91. He took sabbatical leave for the entire Spring 1991 semester.

Rosenbaum was assigned to teach two Summer 1991 courses but indi-

cated that he was unable to do so. He was granted twenty-four hours of

advance sick leave for the Fall 1991 semester, and forty-eight hours of

advance sick leave for the Spring 1992 semester. He was granted short

term disability leave on 03/16/92, and he was absent from the College

until 05/14/92. Rosenbaum was granted ten days of advance sick leave

on 11/18/92. Rosenbaum was granted short term disability for the period

10/28/92 through 12/18/92. He was granted disability from 01/22/93

through 03/26/93.

2 Rosenbaum filed his complaint pro se. However, he is represented by

counsel in this court.

3 The dismissed claims included: (1) claims filed against the College

under 42 U.S. §§ 1981, 1983 for money damages; (2) claims against the

individual defendants in their official capacity under § 1983; and (3)

claims against the individual defendants under the ADA. Rosenbaum

does not challenge this dismissal on appeal.

3

retaliation for Rosenbaum's EEOC filings; (2) a claim of racial dis-

crimination against all Defendants under 42 U.S.C.A.§§ 1981, 1983;

and (3) a claim against the College for discrimination in violation of

the ADA. The court granted summary judgment on all claims for the

Defendants, and Rosenbaum timely appealed.

We review a grant of summary judgment de novo and affirm only

if the record reveals no genuine issue of material fact. See Shaw v.

Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Religious discrimination

claims fall into two general categories: disparate treatment based on

religion and failure to accommodate religious needs. See Chalmers v.

Tulon Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996), cert.

denied, ___ U.S. ___, 118 S.Ct. 58 (1997). Disparate treatment claims

are analyzed under the burden shifting framework of McDonnell

Douglass Corp. v. Green, 411 U.S. 792 (1973), while accommodation

claims are reviewed to determine, among other things, whether the

employer can accommodate the employee's needs without undue

hardship. See 42 U.S.C. § 2000(j); Chalmers, 101 F.3d at 1019.

As an initial matter, we have noted that not all employment deci-

sions having an effect on the employer/employee relationship are

meant to fall within the proscriptions of Title VII. See Reinhold v.

Virginia, 151 F.3d 172, 174-75 (4th Cir. 1998); Page v. Bolger, 645

F.2d 227, 233 (4th Cir. 1981). Rather, a court's focus should be lim-

ited to those "ultimate employment decisions such as hiring, granting

leave, discharging, promoting, and compensating." Id. In accordance

with this policy, the district court properly reduced Rosenbaum's Title

VII claims to: (1) the College's handling of Rosenbaum's sick leave

request and his return to work; (2) the College's denial of pay for

three days in December 1993; (3) the College's refusal to accommo-

date his religious schedule; and (4) the College's deduction of pay for

his absences during Professional Week in 1994.4 Nevertheless,

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4 Rosenbaum's remaining claims included: the College's refusal to

allow Rosenbaum to tape notices to his office door, the College's alleged

practice of assigning "non-Caucasian" students to Rosenbaum's classes,

and the College's assignment of Rosenbaum to classrooms he deemed

inferior. As the district court correctly concluded, these claims were not

adverse employment decisions for purposes of Title VII. See Page, 645

F.2d at 233. Cf. Burlington Indus., Inc. v. Ellerth, ___ U.S. ___, 66

4

Rosenbaum fails to establish a prima facie case for any of his four

claims under Title VII.

Turning then to the McDonnell Douglas analysis, in order to estab-

lish a prima facie case of discrimination, Rosenbaum must prove "a

set of facts which would enable the fact-finder to conclude, in the

absence of any further explanation, that it is more likely than not that

the adverse employment action was the product of discrimination."

See Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55,

58 (4th Cir. 1995) (stating the standard adopted in Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). In the reli-

gious discrimination context, the employee's prima facie case may

consist of a showing that "the employer treated the employee more

harshly than other employees of a different religion, or no religion,

who had engaged in similar conduct." Chalmers , 101 F.3d at 1017.

If Rosenbaum establishes his prima facie case, the burden then shifts

to the College to articulate some legitimate, nondiscriminatory reason

for the employee's complained of action. If the defendant discharges

its burden of production, the plaintiff must be afforded a fair opportu-

nity to show that the reason articulated by the defendant is pretextual.

See, e.g., Ennis, 53 F.3d at 58. The burden of persuasion remains with

the plaintiff at all times. See St. Mary's Honor Ctr. v. Hicks, 509 U.S.

502, 507 (1993).

Applying this framework to Rosenbaum's disparate treatment

claims, he simply did not produce any evidence that the College

treated him differently than other similarly situated employees in

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U.S.L.W. 4634, 4639 (U.S. June 26, 1998) (No. 97-569) (holding, in the

sexual harassment context, that employee must show a"tangible employ-

ment action . . . such as hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a decision causing a sig-

nificant change in benefits" to state a claim). The court further held that,

taken in the aggregate, the claims did not amount to a hostile work envi-

ronment. Because this conduct was not "sufficiently severe or pervasive

to alter the conditions of [Rosenbaum's] employment," we agree that

they did not, either singly or in combination, create a hostile work envi-

ronment. See Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57, 67

(1986) (internal quotation omitted).

5

regard to the contested decisions. See Chalmers , 101 F.3d at 1017. In

fact, the evidence before the court indicated that the College had fol-

lowed its procedures scrupulously, only deviating from them as a

favorable accommodation to Rosenbaum. Specifically, Rosenbaum

claimed that the College improperly denied him pay for three days of

work in December 1992. A review of the facts reveals that the deci-

sion was based on a well founded belief that Rosenbaum was attempt-

ing to manipulate the College's leave system. Rosenbaum had

returned to his position after an extended absence only after the con-

clusion of classes and after any useful work could be assigned to him.

Furthermore, he failed to report to any superior regarding his return

to work until the final day of the working semester (several days after

he says he returned). It cannot be said that the Defendants' action in

refusing to grant a paid status for the upcoming holiday recess was

the product of discrimination. Because Rosenbaum did not establish

a prima facie case on this claim, the district court properly denied

relief.

Similarly, in regard to Rosenbaum's claim that the sick leave pol-

icy was not administered fairly in his case, the evidence shows other-

wise. Despite the unusually high number of requests for leave and

disability, the requests were recommended for approval by Rosen-

baum's supervising dean on all but one occasion. On the one occasion

when a leave request was not recommended for approval, the College

chose to grant the leave nevertheless. Again, Rosenbaum's failure to

establish a prima facie case renders this claim meritless.

Rosenbaum raised two reasonable accommodation claims. First, he

claimed the College discriminated against him by refusing to grant

him leave status for two days he was absent in observance of Rosh

Hashanah in 1994. However, Rosenbaum never requested leave status

either before or after his absence. Therefore, the College's decision

not to pay Rosenbaum for his two day absence was not discrimina-

tory. See Chalmers, 101 F.3d at 1017-19 (holding that to establish a

prima facie religious accommodation claim, employee must notify

employer of need for accommodation).

Rosenbaum's next claim suggested that the College had failed to

make reasonable accommodations in his work schedule to permit him

to honor his religious holidays. However, as the district court noted,

6

even Rosenbaum's own affidavits fail to support his claims. Like all

employees, Rosenbaum was granted three days of paid leave which

could be used for religious observances. Further, there was no way to

schedule Rosenbaum's classes consistent with the College's course

requirements without occasionally conflicting with religious obser-

vances. Moreover, the record indicates that the school made efforts to

accommodate Rosenbaum's religious beliefs, including scheduling

him to teach four days a week instead of five. See Chalmers, 101 F.3d

at 1018.

Rosenbaum's final claim under Title VII alleged retaliation for his

1982 EEOC complaint. However, to prevail on a retaliatory discrimi-

nation claim, the plaintiff must show a causal nexus between the orig-

inal complaint and the actions of the defendant. See Carter v. Ball, 33

F.3d 450, 460 (4th Cir. 1994). Rosenbaum completely fails to show

this nexus because, as noted above, he can not show that he has been

treated differently from other employees.

Rosenbaum raises the same allegations under 42 U.S.C. §§ 1981

and 1983 that he raised under Title VII. Our analysis with respect to

Title VII governs these claims as well. We have held that Title VII

is not an exclusive remedy for employment discrimination by a public

entity. See Keller v. Prince George's County, 827 F.2d 952, 954 (4th

Cir. 1987). A state employee may still bring a Fourteenth Amendment

claim under 42 U.S.C. § 1983 to challenge discriminatory employ-

ment decisions. See Holder v. City of Raleigh , 867 F.2d 823, 828 (4th

Cir. 1989). To prevail on these claims, Rosenbaum must show that the

Defendants discriminated against him because of his Jewish ethnicity.

See St. Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987). We

find no evidence to support Rosenbaum's claim. Rosenbaum provided

only conclusory, generalized statements to support his section 1981

and 1983 claims. Defendants provided evidence that the current chair

of Rosenbaum's department is an Orthodox Jewish Rabbi who

believes there is no basis for Rosenbaum's claims. Furthermore, affi-

davits of other Jewish professors at the College reinforced the notion

that the Defendants have not engaged in discriminatory practices

against those of the Jewish faith. Absent evidence establishing inten-

tional discrimination, the district court properly granted summary

judgment for the Defendants. See General Bldg. Contractors Ass'n v.

Pennsylvania, 458 U.S. 375, 391 (1982).

7

Finally, we note that Rosenbaum abandons his claims under the

ADA on appeal. Therefore, we affirm the decision of the district

court. 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

8