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Brown v. Waterbury Board of Education

United States District Court, D. Connecticut

March 28, 2017

ERIK BROWN, Plaintiff,
v.
WATERBURY BOARD OF EDUCATION and DR. KATHLEEN OUELLETTE, in her individual capacity, Defendants.

          MEMORANDUM OF DECISION

          Michael P. Shea, U.S.D.J.

         Erik Brown asserts that the Waterbury Board of Education (“Board”) and its superintendent, Dr. Kathleen Ouellette, demoted him from his position as principal of Walsh Elementary School because he is African American. His amended complaint alleges race discrimination, including discriminatory demotion and a hostile work environment, against the Board (Count One, under Title VII of the Civil Rights Act of 1964) and against Ouellette (Count Two, under 42 U.S.C. §§ 1981 and 1983), retaliation in violation of the First Amendment, the Connecticut Constitution, and Title VII against the Board (Count Three), and a violation of his right to procedural due process under the Fourteenth Amendment against Ouellette (Count Three (A) under 42 U.S.C. § 1983).[1]

         Defendants move for summary judgment as to all of Brown's claims, contending principally that the undisputed evidence in the record shows that the demotion stemmed from reports of Brown's own poor performance corroborated by an independent investigation. Their motion is GRANTED IN PART and DENIED IN PART. Defendants are entitled to summary judgment on Brown's Title VII hostile work environment claim in Counts One and Two, his procedural due process claim in Count Three (A), and his retaliation claim under the First Amendment in Count Three because Brown has failed to submit evidence raising a genuine issue of material fact on those claims. Brown's retaliation claim under the Connecticut Constitution in Count Three is dismissed without prejudice under 28 U.S.C. § 1367(c)(1). Genuine issues of material fact about whether Brown's race or his complaints to anti-discrimination agencies contributed to his demotion preclude summary judgment as to the Title VII discriminatory demotion claim in Counts One and Two and the Title VII retaliation claim in Count Three.

         I. Background

         The following facts are taken from the parties' Local Rule 56(a) Statements and the documents cited therein. See Defendants' Local Rule 56(a)(1) Statement, ECF No. 40 (“Def.'s LRS”); Plaintiff's Local Rule 56(a)(2) Statement, ECF No. 44-1 (“Pl.'s LRS”). The facts are undisputed unless otherwise stated.

         A. Brown's Placement on Administrative Leave and Demotion

         On August 18, 2005, the Board hired Brown - an African American - as principal of Walsh Elementary School (“Walsh”). (Def.'s LRS ¶ 2; Pl.'s LRS ¶ 2.) Though Walsh was “deteriorating, ” in a blighted neighborhood, and one of the lowest-performing schools academically in the state, Brown was “motivated” to accept the challenge. (ECF No. 44-4 at 43.) Over the next eight years, Brown served as principal of Walsh, but Walsh struggled to improve on standardized performance tests. (Def.'s LRS ¶ 3; Pl.'s LRS ¶ 3.)

         Walsh's stagnant academic performance made Walsh eligible for designation as a “Commissioner's Network School, ” which is also referred to as a “Turnaround School.” (Def.'s LRS ¶ 4; Pl.'s LRS ¶ 4.) The Commissioner's Network “provide[s] resources and flexibilities to improve student achievement in the state's lowest performance schools. The [program] is designed as a partnership between local stakeholders and the state.” (ECF No. 41-1 at 4.) Brown and Ouellette submitted an application to the Connecticut Department of Education to designate Walsh a Turnaround School. (Def.'s LRS ¶ 5; Pl.'s LRS ¶ 5.) As part of the application process, the Connecticut Department of Education required an audit of Walsh by state officials. (Def.'s LRS ¶ 6; Pl.'s LRS ¶ 6.) On February 27 and 28, 2013, state officials audited Walsh. (Def.'s LRS ¶ 7; Pl.'s LRS ¶ 7.) In March 2013, the state officials issued a report of their audit entitled “The Commissioner's Network Operations and Instructional Audit Report, Walsh School” (the “Audit Report”). (Def.'s LRS ¶ 7; Pl.'s LRS ¶ 7.) The Audit Report identified concerns relating to Walsh's administration. (Def.'s LRS ¶ 8; Pl.'s LRS ¶ 8.) Specifically, the Audit Report found that there was an “atmosphere of fear and intimidation” at Walsh. (ECF No. 41-1 at 7.) It noted “staff reports that school leadership ha[d] threatened retribution if [staff] do not support its decisions.” (Id.) But it mentioned no specific incidents of bullying or intimidation by Walsh's administrative team, which included Brown and the vice principal, Maria Zillo. (Id.)

         Following the Audit Report's issuance, the Waterbury Teacher's Association, along with Walsh teachers, invited Ouellette to discuss their concerns about Brown's management and administration of Walsh. (Def.'s LRS ¶ 9; Pl.'s LRS ¶ 9.) In the meeting, Walsh staff expressed their view that “the building administrators at Walsh (Principal Erik Brown and Assistant Principal Maria Zillo) had created an atmosphere of intimidation in the school.” (ECF No. 41-2 at 3.) Brown had no notice of the meeting between members of his staff and Ouellette and did not attend. (ECF No. 44-4 at 121.) No grievances (concerning bullying or otherwise) had ever been filed against Brown. (ECF No. 44-5 at 27.)

         After her meeting with Walsh staff, Ouellette took two steps. First, on March 22, 2013, Ouellette placed Brown and Zillo (a white woman) on administrative leave, a status in which they continued to receive their full salaries and benefits. (Def.'s LRS ¶ 14; Pl.'s LRS ¶ 14.) According to Ouellete, she decided to place Brown and Zillo on administrative leave pending an independent investigation into the allegations set forth in the Audit Report. (ECF No. 41-7 at ¶¶ 13-15.) She decided that a more “fair[] and impartial[]” investigation could be conducted with Brown and Zillo on administrative leave. (Id. at ¶ 13.) Ouellette did not provide Brown any opportunity before he was placed on administrative leave to address or correct any of the alleged deficiencies raised in the Audit Report. (ECF No. 44-4 at 161); see also (ECF No. 41-6 at 22)(“Mr. Brown was given no opportunity to correct any deficiencies.”) Second, on March 25, 2013, Ouellette hired Attorney Frederick L. Dorsey to conduct an independent investigation into the issues raised in the Audit Report. (Def.'s LRS ¶ 11; Pl.'s LRS ¶ 11.)

         While on administrative leave, Brown received a copy of the Audit Report. (Def.'s LRS ¶ 21; Pl.'s LRS ¶ 21.) On April 15, 2013, he filed complaints with the Connecticut Commission on Human Rights and Opportunities (“CHRO”) and the United States Equal Employment Opportunities Commission (“EEOC”) alleging discrimination by the Defendants on account of his race. (Def.'s LRS ¶ 21; Pl.'s LRS ¶ 21.)

         On June 7, 2013, Dorsey issued his report - entitled “Investigative Report for the Waterbury Board of Education, Allegations Regarding Administrative Improprieties at Walsh Elementary School” (the “Dorsey Report”) - detailing the findings of his investigation. (Def.'s LRS ¶ 15; Pl.'s LRS ¶ 15.) The Dorsey Report concluded that “during the time Mr. Brown has been Principal of Walsh, educational leadership has been poor, decision-making suspect and the staff demoralized. It is highly unlikely that returning the current administrative staff to Walsh will result in a successful turnaround of that school.” (ECF No. 41-2 at 18.) The Dorsey Report, like the Audit Report, did not recount specific instances of bullying and intimidation by Brown.

         On July 23, 2013, following a review of the Dorsey Report, Ouellette advised Brown that she was “considering reassigning [him] to a position other than elementary school principal.” (ECF No. 41-3 at 2.) She indicated that she was contemplating the change based on the Audit Report's conclusion “that there were significant problems with administrative leadership at Walsh” and the Dorsey Report's conclusion “that there were substantial problems with [Brown's] leadership at Walsh.” (Id.) Ouellette invited him to a meeting to discuss the change. (Def.'s LRS ¶ 17; Pl.'s LRS ¶ 17.) After the meeting, Ouellette demoted Brown to vice principal and transferred him to Kingsbury Elementary School. (ECF No. 41-7 at ¶ 19.) According to Ouellette, she made her decision “[b]ased upon the Audit Report, the Dorsey Report, the information given to [her] at [her] meeting with members of the Waterbury Teachers Union, and Mr. Brown's unwillingness to accept any responsibility for the issues raised in the Audit and Dorsey Reports.” (Id.)

         B. The Arbitration Award

         On August 19, 2013, Brown filed a grievance concerning his demotion and transfer under the collective bargaining agreement with the Board. (ECF No. 41-6 at 10.) On October 8, 2015, following a lengthy arbitration process, the arbitration panel issued an award in favor of Brown, finding that the Board had “violated the [collective bargaining] [a]greement when it reassigned Mr. Brown to the position of Supervising Vice Principal.” (Id. at 25.) Specifically, the arbitration panel concluded that the Board did not have “just cause” to demote Brown, because it relied on anonymous reports by staff (Id. at 23)(citing the “lack of direct testimony that served as the basis for the demotion”) and “made no efforts…to indicate what corrective actions were necessary…” (Id.) The panel also concluded that “[t]he Board failed to follow an important procedural aspect of the evaluation protocol” by failing to give Brown an opportunity to address “perceived deficiencies.” (Id. at 30.) The panel ordered that Brown “be reinstated to the rank of Elementary School Principal, ” and “receive back pay as an Elementary School Principal for the period of his demotion together with all contractually agreed upon benefits to which he is entitled.” (Id. at 31.) The arbitration award did not “require[] or direct[] the Waterbury Board of Education to assign Mr. Brown to Walsh Elementary School.” (Id.) Following the arbitration award, Brown was reinstated as a principal at another school in the Waterbury School system. (Def.'s LRS ¶ 22; Pl.'s LRS ¶ 22.)

         C. Brown's Comparators

         Brown claims his treatment by the Defendants was discriminatory because white elementary school administrators alleged to have engaged in similar conduct (intimidation and bullying) were treated differently than he. (ECF No. 44 at 16-20.) He identities five comparators: Anne Begley, Noreen Buckley, Buerkle, Maria Moulthrop, and Maria Zillo. (Id.) The alleged conduct concerning Begley, Buerkle, and Moulthrop occurred during the tenure of Dr. David Snead (an African-American), who preceded Ouellette as superintendent of Waterbury Schools.[2](Def.'s LRS ¶¶ 35, 39; Pl.'s LRS ¶¶ 35, 39); see also (ECF No. 44-5 at 116-19.) The alleged conduct concerning Buckley and Zillo occurred during Ouellette's tenure. (Def.'s LRS ¶¶ 51-52; Pl.'s LRS ¶¶ 51-52.)

         1. Anne Begley

         In January or February 2008, Bucks Hill Elementary staff and teachers claimed Anne Begley - the white principal at the school - was ignoring teacher requests and engaging in threatening and verbally abusive conduct. (Def.'s LRS ¶ 38; Pl.'s LRS ¶ 38.) Following an investigation, Dr. Snead assigned Begley a mentorship team to work with her weekly and advise her how to improve her management style. (Def.'s LRS ¶ 40; Pl.'s LRS ¶ 40.) She was never placed on administrative leave. (Def.'s LRS ¶ 40; Pl.'s LRS ¶ 40.)

         2. Noreen Buckley

         In 2014, Buckley - the white principal of Regan Elementary School - had an anonymous complaint filed against her by teachers accusing her of intimidation and bullying. (Def.'s LRS ¶ 46; Pl.'s LRS ¶ 46.) The complaint was sent to Kevin Egan, the Waterbury Teachers Association President. (Def.'s LRS ¶ 50; Pl.'s LRS ¶ 50.) Egan did not file a grievance against Buckley because an anonymous complaint could not be pursued under the terms of the collective bargaining agreement in effect at that time. (Def.'s LRS ¶ 50; Pl.'s LRS ¶ 50.) Ouellette did not order an independent investigation into the allegations and Buckley was neither placed on administrative leave nor demoted. (ECF No. 41-7 at ¶ 40.)

         3. Buerkle[3]

         Buerkle, who is white, served as principal at the State Street School during Dr. Snead's tenure. (ECF No. 44-5 at 117.) While she was principal at State Street, staff made allegations that she had intimidated and bullied them. (Id.) The Board provided her professional development resources, including mentoring. (Id.) She was never demoted or placed on administrative leave on account of those allegations. (Id.)

         4. Maria Moulthrop

         When Dr. Snead was superintendent, Maria Moulthrop (who is white) was principal of Hopeville Elementary School. (Def.'s LRS ¶ 28, 32; Pl.'s LRS ¶ 28, 32.) She was accused of engaging in improper testing procedures when administering a standardized test. (Def.'s LRS ¶ 29; Pl.'s LRS ¶ 29.) Attorney Dorsey was hired to conduct the investigation into Moulthrop's alleged misconduct. (Def.'s LRS ¶ 30; Pl.'s LRS ¶ 30.) Moulthrop was placed on paid administrative leave during Dorsey's investigation. (Def.'s LRS ¶ 33; Pl.'s LRS ¶ 33.) During Dorsey's investigation, Moulthrop was provided the identity of her accusers. (ECF No. 44-4 at 143-46). She subsequently resigned her position. (Def.'s LRS ¶ 34; Pl.'s LRS ¶ 34.)

         5. Maria Zillo

         Zillo was accused of intimidation and bullying by Walsh staff, as reflected in the Dorsey and Audit Reports. (ECF No 41-2 at 5); see also (ECF No. 41-1 at 10.) She was placed on administrative leave but never demoted.

         II. Legal Standard

         Summary judgment is appropriate only when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The “party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists.” Goenaga v. Mar. of Dimes Birth Defects Found, 51 F.3d 14, 18 (2d Cir. 1995). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim.” Id. If the moving party carries its burden, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). An issue of fact is “material” if it “might affect the outcome of the suit under the governing law.” Konikoff v. Prudential Ins. Co. of America, 234 F.3d 92, 97 (2d Cir. 2000)(citation and quotation marks omitted). “A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006)(citation and quotation marks omitted).

         On summary judgment, I must “construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013)(citation and quotation marks omitted).

         III. Discussion

         A. Brown's Claims Are Not Moot

         Defendants argue that all of Brown's claims are moot because the arbitration award provides him with all the relief he seeks. (ECF No. 41 at 5-6.) “It is well established that the Case or Controversy Clause of Article III, Section 2 of the United States Constitution limits the subject matter jurisdiction of the federal courts such that the parties must continue to have a personal stake in the outcome of the lawsuit. That is, when the issues in dispute between the parties are no longer live, a case ...


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