Thanongsinh v. Board of Educ.
| Decision Date | 13 September 2006 |
| Docket Number | No. 05-3002.,05-3002. |
| Parties | Linh THANONGSINH, Plaintiff-Appellant, v. BOARD OF EDUCATION, District U-46 and Hanan Javetz, individually and in his official capacity, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard A. Duffin (argued), Chicago, IL, for Plaintiff-Appellant.
Patricia J. Whitten, Dana F. Crumley, Dorothy Sanders Lowery (argued), Franczek Sullivan, Chicago, IL, for Defendants-Appellees.
Before POSNER, RIPPLE and KANNE, Circuit Judges.
On December 8, 2003, Linh Thanongsinh, a custodian at Oakhill Elementary School, brought the present suit against his employer, School District U-46 (the "School District"), and his supervisor, Hanan Javetz, in his individual and official capacities. Mr. Thanongsinh alleges that he was demoted from Group V Head Custodian to Group II Building Custodian in violation of both Title VII, see 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981(a). The district court granted summary judgment in favor of the defendants. The plaintiff now appeals. We affirm in part and reverse in part the judgment of the district court and remand for proceedings consistent with this opinion.
Mr. Thanongsinh, an Asian-American of Chinese and Laotian descent, began working as a custodian for School District U-46 in 1991. He subsequently was promoted to the position of Group V Head Custodian and assigned to Oakhill Elementary School in Kane County, Illinois. His immediate supervisor at Oakhill was Hanan Javetz, the Director of Plant Operations for the School District.
Mr. Thanongsinh received consistently favorable work performance evaluations while employed as a Group V Head Custodian at Oakhill. For example, in 2001, the principal of Oakhill, Carolyn O'Neal, ranked as "outstanding" or "exceptionally high" Mr. Thanongsinh's job knowledge, quantity and quality of work, dependability, organization, flexibility and potential level of ability; Mr. Thanongsinh was given "excellent" or "high" marks in the remaining categories, attendance and cooperation. R.28, Ex.B at 4-5. O'Neal remarked in this evaluation that Mr. Thanongsinh is id. at 4, and that "he can do many things in the way of repairs, and he does so," id. at 6.
Similarly, in 2002, O'Neal gave Mr. Thanongsinh the highest marks possible in the categories of job knowledge, quantity of work, dependability, organization, flexibility and potential level of ability. He received favorable marks in the other categories—quality of work, attendance and cooperation. O'Neal added the following comments:
Linh has a wide variety of skills related to maintenance and upkeep of the physical plant, equipment and supplies. These skills are evidenced by the work he has done in the areas of plumbing, electricity, and HVAC, without assistance of those in the trades.
Id. at 1. O'Neal concluded that Mr. Thanongsinh is fully "capable of handling more responsibility." Id. at 2.1
The employment of School District custodians is governed by a collective bargaining agreement between the School District and the Education Support Services Organization, the union that represents School District employees. In late 2002, the School District and the union, due to budgetary constraints, agreed to phase out Group V custodians through the implementation of a two-part certification process. To remain a Group V custodian under the 2002-2005 Collective Bargaining Agreement (the "Agreement"), the employee first was required to score at least 50 out of 100 on a written exam. If he scored below 50, he was permitted to retest; if, however, after the second try, he did not pass the written exam, he would not be allowed to proceed to the second portion of the exam, which tested hands-on skills. By contrast, those who scored 50 or above on the written exam then were asked to perform tasks for which a Group V Head Custodian traditionally is responsible—for example, testing boiler water and performing asbestos and playground inspections.2 To obtain certification, the employee's average score from the two portions of the test had to equal or exceed 70. See Collective Bargaining Agreement, R.24, Ex.G-1.
Mr. Thanongsinh took the written portion of the test in November 2002. He received a score of 55. He proceeded to the hands-on portion of the exam, which was administered on March 14, 2003, by Mr. Javetz and Ron Dugo, the Maintenance Supervisor for the School District. He received a score of 66.62. The average of his written and hands-on scores was 60.81, which, under the terms of the Agreement, constituted a failing score.
Pursuant to this Agreement, Mr. Thanongsinh was permitted to retake the test. He received a score of 46 on the written portion and did not advance to the hands-on portion of the exam. Effective July 1, 2003, the School District therefore demoted Mr. Thanongsinh to the position of Group II Building Custodian.3 As a Group V Head Custodian, Mr. Thanongsinh had earned $20.77 per hour; upon demotion, he suffered a pay loss of approximately $6 per hour. Although Mr. Thanongsinh remains employed as a custodian at Oakhill, numerous job responsibilities formerly performed by Mr. Thanongsinh were reassigned upon his demotion to a Group 9 employee, Mike DiGioia, who visits Oakhill once weekly.
Shortly after Mr. Thanongsinh's demotion, his union representative requested a grievance-based meeting with School District officials to discuss the reduction in pay associated with Mr. Thanongsinh's demotion. The persons present at this meeting included Mr. Thanongsinh; his union representative; Catherine McNamara, a School District Supervisor; and Mr. Javetz. Mr. Thanongsinh expressed at the meeting his frustration with the difficulty of the test; Mr. Javetz's response to Mr. Thanongsinh's concerns is the subject of vigorous dispute between the parties. In his affidavit, Mr. Thanongsinh claimed:
At the meeting, I began explaining my side of the story regarding the hands-on portion of the certification testing program. Mr. Javetz crossed his arms and said in an argumentative manner that he could not understand me. He immediately thereafter stated that I should learn better English. Mr. Javetz's comment about my alleged need to learn better English was not made in response to any statements by me in regard to the written portion of the certification exam or my English language abilities.
R.28, Ex.D at 2. Mr. Javetz, by contrast, testified in his deposition that he merely suggested to Mr. Thanongsinh that he improve his English skills because, without such skills, there would be little opportunity for job advancement:
I said any position, . . . if you want to move to a higher position from four and higher, you have to take a written test; and to pass the test you need to have some basic or even a little higher than basic English skills. So to do that, to be more successful, you know, I would recommend that you can see if we had some free incentive administration, basically, the same idea, some programs that might be free to improve your skills.
Upon receiving a right-to-sue letter from the EEOC, on December 8, 2003, Mr Thanongsinh filed a complaint in the United States District Court for the Northern District of Illinois against the School District and Mr. Javetz. He alleged that his demotion was motivated by his race, in violation of both Title VII, see 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981(a).4 Specifically, Mr. Thanongsinh claimed that he had the "ability to meet and exceed the expectations for the hands-on test," but that Mr. Javetz's scoring and administration of that portion of the test was "racially motivated" and "willful and wanton."5 R.12 at 4-5. He requested both equitable and legal relief, including back pay, attorneys' fees and compensatory and punitive damages.
After the district court denied the defendants' motion to dismiss, the defendants filed a motion for summary judgment. In this motion, the defendants contended that Mr. Thanongsinh had not established a prima facie case of discrimination and had not rebutted the defendants' claim that he was demoted for the legitimate, non-discriminatory reason that he was unable to pass the Group V certification exam. The defendants also contended that Mr. Javetz could not be held liable in his official capacity under Title VII because the claim was duplicative of the plaintiff's claims against the School District.
In response to this motion, Mr. Thanongsinh invited the court's attention to three pieces of evidence that he claims demonstrate that the hands-on portion of the test was scored in a discriminatory manner. First, according to Mr. Thanongsinh, he was scored in a manner different from at least one Caucasian custodian, Mitchell Cain. Specifically, on Topic 9 of the hands-on exam, Group V Head Custodians were required to demonstrate their knowledge of how to complete Material Safety Data Sheets ("M.S.D.S."). Mr. Thanongsinh forgot to bring his M.S.D.S. materials to the exam and therefore was awarded zero points for these questions. Cain's score sheet indicates that he also forgot to bring his M.S.D.S. materials to the exam; nevertheless, Mr. Javetz and the other School District official administering the exam asked Cain the relevant M.S.D.S. questions, and Cain was awarded a score of 10 out of 10 on Topic 9. Second, Mr. Thanongsinh contended that he was not given "calming instructions" at the commencement of the hands-on exam, as were Caucasian applicants. R.27 at 7. As a result, the testing room was filled with "tension in the air," causing Mr. Thanongsinh nervousness and anxiety and, ultimately, resulting in mistakes on the exam. Id....
To continue reading
Request your trial
-
Umg Recordings, Inc. v. Grande Commc'ns Networks, LLC
...where the person had knowledge of its content and the databases owners' practices for compiling the data); Thanongsinh v. Bd. of Educ., 462 F.3d 762, 777 (7th Cir. 2006) (holding that the qualified witness "need only be familiar with the company's recordkeeping practices").4 For these reaso......
- Mattie Smith As Pers. Representative For the EState Pernell Burden v. Atkins
-
Finch v. City of Indianapolis
...their official and individual capacities are entitled to judgment on any Title VII claims against them. See Thanongsinh v. Board of Education, 462 F.3d 762, 771 n. 7 (7th Cir.2006) (Title VII imposes liability against the “employer”; a claim against a person's office is no different from a ......
-
Sistrunk v. Khan, 11 C 3974.
... ... Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir.2006); Koszola v. Bd. of Educ. of the City of Chicago, 385 F.3d 1104, 1108 (7th Cir.2004). Despite the admonitions stated above, ... ...
-
The implications of psychological research related to unconscious discrimination and implicit bias in proving intentional discrimination.
...employee's termination"). (37.) McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). (38.) Thanongsinh v. Bd. of Educ., Dist. U-46, 462 F.3d 762, 772 (7th Cir. 2006); see also Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dep't of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, ......
-
The Admissibility of Web-based Evidence
...as to his personal knowledge of the business practices at the relevant place of business. The court cited Thanongsinh v. Bd. of Educ., 462 F.3d 762, 776-66 (7th Cir. 2006), which held that "[t]he custodian of the records need not be in control of or have individual knowledge of the particul......