69 F.3d 1523 (10th Cir. 1995), 94-1009, Reynolds v. School Dist. No. 1, Denver, Colo.

Docket Nº:94-1009.
Citation:69 F.3d 1523
Party Name:Bernadette REYNOLDS, Plaintiff-Appellant, v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, named as: School District No. 1, City and County of Denver; School District No. 1, Board of Education, named as: Board of Education of School District No. 1, City and County of Denver; Jo Thomas, Lino Gonzales, Leroy Lopez, Defendants-Appellees.
Case Date:November 13, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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69 F.3d 1523 (10th Cir. 1995)

Bernadette REYNOLDS, Plaintiff-Appellant,

v.

SCHOOL DISTRICT NO. 1, DENVER, COLORADO, named as: School

District No. 1, City and County of Denver; School District

No. 1, Board of Education, named as: Board of Education of

School District No. 1, City and County of Denver; Jo

Thomas, Lino Gonzales, Leroy Lopez, Defendants-Appellees.

No. 94-1009.

United States Court of Appeals, Tenth Circuit

November 13, 1995

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        Steven L. Janssen, Boulder, Colorado, for Plaintiff-Appellant.

        Patrick B. Mooney (Michael Hodges Jackson with him, on the brief), Semple & Jackson, Denver, Colorado, for Defendants-Appellees.

        Before BRORBY and EBEL, Circuit Judges, and CAMPOS, District Judge. [*]

        EBEL, Circuit Judge.

        Plaintiff-Appellant Bernadette Reynolds ("Reynolds") brought this reverse discrimination action against Denver Public School District No. 1, the Board of Education, and three school administrators (collectively "Defendants") under various federal civil rights statutes and Colorado law. Reynolds, a white bilingual education teacher in the Denver Public School system, claims that Defendants discriminated against her in various promotion and other employment decisions because of her race. Specifically, Reynolds maintains that Defendants violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 1981, 42 U.S.C. Sec. 1983, and Colorado contract and tort law. The district court dismissed four of Reynolds' six claims pursuant to Fed.R.Civ.P. 12(b)(6), and then granted summary judgment for Defendants on Reynolds' remaining federal employment discrimination and state breach of contract claims. Reynolds appealed these rulings, and we now affirm.

       I. BACKGROUND

        Reynolds has been a teacher with the Denver Public Schools ("DPS") since 1968. Until the fall of 1988, she taught primarily social studies and Spanish, and then became a teacher on special assignment ("TOSA") in the bilingual education department. According to Reynolds, the TOSA assignment generally serves as a stepping-stone to administrative positions in the school system. However, when Reynolds applied for a series of administrative jobs from 1989 to 1992, she was not selected for any of the promotions. She maintains that Defendants discriminated against her because she is white, and refused to promote her even though she was the most qualified applicant for the various positions.

        The record before us reveals four specific instances where the school district denied Reynolds promotions. First, in 1989, Reynolds applied to become a middle school assistant principal. 1 Reynolds interviewed for the position and was placed into a pool out of which principalship vacancies would be filled. Reynolds believed that the school district placed virtually everyone in the pool into a principalship position except for her. However, the DPS Executive Director of Personnel Services explained that the school district placed only four of the eight persons in the applicant pool.

        Second, in 1990 Reynolds applied for the position of Director of Bilingual/ESOL Education.

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The interviewing committee that evaluated the candidates for the position ranked Defendant Jo Thomas ("Thomas"), a Hispanic, above Reynolds. Based on a Superintendent's report, the Board of Education officially awarded Thomas the job on November 15, 1990, making her Reynolds' immediate supervisor. To support her reverse discrimination claim, Reynolds relates that Dr. Evie Dennis, the Superintendent of Schools, told her that the Director position needed to be filled by a Hispanic to satisfy the Hispanic community.

        Third, Reynolds applied to become Supervisor of Secondary Personnel in 1991. Again, the school district declined to promote Reynolds, selecting Sue Koscove, a white woman, for the position in November 1991.

        Fourth and finally, Reynolds applied for the position of Coordinator in the Bilingual/ESOL Department in August 1992. No one held the Coordinator position at the time Reynolds applied. Defendants never filled the position and subsequently eliminated it altogether. Defendants assert that they chose to leave the position vacant and later eliminate it because of anticipated budget cuts. 2 Reynolds claims that they eliminated the position under the pretext of budgetary concerns to keep her from becoming Coordinator once they realized that she was the most qualified applicant for the job. 3 Reynolds cites as evidence of pretext the fact that the Bilingual/ESOL department budget increased from $1,733,559 in fiscal year 1992-1993 to $1,775,044 for fiscal year 1993-1994. Reynolds further highlights that she was the sole white person working in the Bilingual/ESOL Department, and that all administrative personnel are currently Hispanic.

        Following Reynolds' failed attempts to secure an administrative promotion, she claims that Defendants constructively discharged her from her TOSA position. The purported discharge took place on December 2, 1992, when Reynolds became involved in a dispute with Thomas, her supervisor, about an assignment given to Reynolds that she felt should have been given to Augustine Lopez instead of her. 4 Thomas instructed Reynolds in a memo to compile data on the number of students in bilingual/ESOL programs in the various high schools and middle schools in the district to assist in determining whether staff changes would be needed for the semester. Reynolds responded with a memo to Thomas stating that she believed Augustine Lopez should compile the data for those schools for which she understood him to be responsible. Thomas then sent Reynolds a second memo informing her that Augustine Lopez was busy on another project, that Reynolds should have the numbers and formulae readily accessible, that she had performed this task in the past, and that the assignment should not be difficult for Reynolds to complete. Reynolds nevertheless felt that Thomas' decision that she compile data on all of the schools was inappropriate, and went to talk to Thomas. Thomas repeated that Reynolds should do the assignment, Reynolds refused to sign the memo outlining the assignment, and a confrontation ensued in which Thomas told Reynolds to stop yelling at her and Reynolds responded that she was not yelling.

        Thomas then left to report the incident to a more senior school administrator. After some time passed, Thomas went to Reynolds' office and asked her if she was going to do the assignment. Reynolds answered that she wanted to speak to her attorney first, and after she spoke with him, Thomas asked her to come to her office. Reynolds called her attorney again because she suspected she was being called into a disciplinary meeting. Lino Gonzales ("Gonzales"), an administrator of School District 1, then asked her to come to Thomas' office, and Reynolds ultimately went into Thomas' office. Reynolds, Defendant Leroy Lopez ("Lopez"), Associate Superintendent

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of School District No. 1, Gonzales, Thomas, and Director of Security Gil Shannon attended the disciplinary meeting. Defendants then placed Reynolds on paid administrative leave for insubordination pending an investigation of the incident. 5 Ultimately, on January 9, 1993, Defendants terminated Reynolds as a TOSA and reassigned her to a classroom teaching position with no loss of pay or benefits. Reynolds claims that the reassignment constituted a demotion because it lowered her prospects for future promotion and because a classroom teaching position was less prestigious.

        Based on these events, Reynolds filed a grievance on January 4, 1993 with the Denver Classroom Teachers Association, as provided for by the collective bargaining agreement governing her employment. In her grievance, Reynolds complained about being placed on administrative leave, claimed that such action violated the collective bargaining agreement, and alleged that she was being discriminated against generally in promotion and other matters because she was white. Following an initial conference, Reynolds amended her grievance to charge also that the grievance procedure itself had not been properly followed, and that her supervisors had assigned her to a classroom teaching position in reprisal for filing her grievance and in violation of the collective bargaining agreement. After proceeding through a "Level III" arbitration hearing, the arbitrator dismissed Reynolds' grievance.

        Prior to her grievance and reassignment, Reynolds filed the present action in federal district court on December 21, 1992, alleging six causes of action under federal and state law and requesting declaratory, injunctive, and monetary relief. Specifically, Reynolds claimed (1) denial of equal employment and promotional opportunities due to her race in violation of Title VI of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. Secs. 2000d to 2000d-7, 42 U.S.C. Sec. 1981, and 42 U.S.C. Sec. 1983; (2) breach of contract; (3) negligent supervision by the School District No. 1 and the Board of Education of Thomas, Gonzales, and Lopez; (4) denial of due process and equal protection based on Defendants' failure to follow EEOC guidelines in violation of 42 U.S.C. Sec. 1983; (5) intentional interference with prospective financial advantage; and (6) engagement in a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Secs. 1961-68. Defendants moved to dismiss the negligent supervision, Sec. 1983 EEOC guidelines, intentional interference, and RICO claims. Reynolds concurred in the dismissal of her RICO claim, and the district...

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