Banks v. East Baton Rouge Parish School Bd.

• Decision Date: 19 February 2003
• Docket Number: No. 02-30090.,02-30090.
• Citation: 320 F.3d 570
• Parties: Dorothy BANKS; et al., Plaintiffs, Tina Brooks; Shirley Brown; Annette J. Gray; Mary Holmes; Annie Johnson; Amy Lane; Rosa Malveau; Dorothy McPipe; Alma Newman; Maggie Tucker; Bertha Twine; Berthella Wallace; Edna Welch; Mary Williams; Nellie Williams, Plaintiffs-Appellants, v. EAST BATON ROUGE PARISH SCHOOL BOARD; Ingrid Kelley; Warren L. Pratt, Jr.; Press L. Robinson, Sr., Dr.; Jacqueline Mims; Patricia Hayne-Smith; Noel Hammatt; Roger Moser; Daniel R. Henderson; Eldon R. Ledoux; Dalton Devall; William P. Black; James Manley, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

320 F.3d 570

Dorothy BANKS; et al., Plaintiffs, Tina Brooks; Shirley Brown; Annette J. Gray; Mary Holmes; Annie Johnson; Amy Lane; Rosa Malveau; Dorothy McPipe; Alma Newman; Maggie Tucker; Bertha Twine; Berthella Wallace; Edna Welch; Mary Williams; Nellie Williams, Plaintiffs-Appellants, v. EAST BATON ROUGE PARISH SCHOOL BOARD; Ingrid Kelley; Warren L. Pratt, Jr.; Press L. Robinson, Sr., Dr.; Jacqueline Mims; Patricia Hayne-Smith; Noel Hammatt; Roger Moser; Daniel R. Henderson; Eldon R. Ledoux; Dalton Devall; William P. Black; James Manley, Defendants-Appellees.

No. 02-30090.

United States Court of Appeals, Fifth Circuit.

February 19, 2003.

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Nancy Picard (argued), Robein, Urann & Lurye, Metairie, LA, for Plaintiffs-Appellants.

Karen Denise Murphy (argued), Kenneth F. Sills, Hammonds & Sills, Baton Rouge, LA, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Louisiana.

Before EMILIO M. GARZA and CLEMENT, Circuit Judges, and DAVIS,^* District Judge.

EMILIO M. GARZA, Circuit Judge:

Fifteen female plaintiffs (collectively, "Employees") formerly or currently employed as janitors by the East Baton Rouge Parish School Board appeal the district court's decisions granting summary judgment in favor of the Board, its individuals members, and James Manley, the Personnel Supervisor for the Board's Maintenance Department (collectively, the "Board"). In granting summary judgment, the district court dismissed Employees' Title VII retaliation and disparate impact discrimination claims, as well as their § 1983 retaliation claim, against the Board. Employees argue that the district court erred in concluding that Employees failed to make a prima facie showing of an adverse employment action under either Title VII or § 1983. According to Employees, the Board's implementation of a reading requirement and new salary structure for a new Janitor position, which was created pursuant to a consent decree entered into with the U.S. Department of Justice (the "DOJ"), thwarted Employees' immediate "promotion." This action, according to Employees, kept them from reaching their appropriate pay level and step and was, therefore, an adverse employment action under both Title VII and § 1983. Employees also argue that the district court erred in concluding that Employees failed to make a prima facie showing under Title VII that the reading requirement, implemented by the Board, selected applicants for the new Janitor position in a discriminatory pattern resulting in a sex-based imbalance in the Board's workforce.

I

We begin with a brief summary of the unique facts of this case. The Board employed janitors in three capacities: "Janitor I," "Janitor II," and "Janitor III." Janitor I employees, all of whom were female, worked part-time for six hours a day, nine months of the year. They were responsible for performing the most basic janitorial tasks. The Janitor II employees, most of whom were male, worked eight hours a day for the entire year. They were responsible for performing tasks essentially the same as those performed by Janitor I employees, with the addition of some duties, such as lawn care. Janitor III employees, all of whom were male, worked full-time and were responsible for performing tasks essentially the same as those performed by Janitor I and Janitor II employees, with the addition of some supervisory tasks, such as locking up buildings and supervising cleaning crews.

The Employees, all of whom are female, were Janitor I employees. After the Board decided to eliminate the medical benefits received by Janitor I employees and to reduce their working hours (from six hours per day to four hours per day), a number of Janitor I employees, including Employees, sued the Board in state court, alleging that the Board's action had a disparate impact on female employees in violation of Louisiana state law, since all Janitor I employees were female. Their suit also alleged intentional sex discrimination in violation of Louisiana state law.

While the state court lawsuit was still pending,¹ the DOJ began an inquiry into the Board's procedures for placing women into the Janitor II and Janitor III positions. The impetus for the DOJ investigation was the allegation that the Board discriminated against women on the basis of their gender in violation of Title VII by reserving the Janitor II and Janitor III positions for males only.

Subsequently, the Board began to evaluate all school system positions, including job descriptions and salary schedules, for the stated purpose of eliminating the inefficient use of resources. All janitor and custodian classifications were included in this study. The Board decided to phase out the three-tiered janitor position and replace it with two new positions: "Janitor" and "Lead Janitor." The Janitor position (the "new Janitor position") combined the duties of the Janitor I and Janitor II positions. The "Lead Janitor" position was intended to be the equivalent of the Janitor III position. Both the new Janitor position and the Lead Janitor position were full-time positions, with medical benefits. However, the Board created a new pay scale, which resulted in lower hourly pay for any Janitor I employee who accepted the new Janitor position. Additionally, the Board implemented a testing procedure to select applicants for the new Janitor position. Applicants were required to take and pass a "practical" test involving the use of maintenance equipment, as well as a reading test, which tested an applicant's ability to read at an eighth-grade level. Applicants for the Lead Janitor position were not required to take either of these two tests.

The Board's implementation of the reading test for the new Janitor position was, according to the Board, its response to an incident in which at least one Board employee was sickened as a result of a custodian's failure to follow printed instructions on the use of a pesticide. The Board maintains that safety concerns demanded its new Janitors be able to read at an eighth-grade level, since the safety guidelines of the Occupational Safety and Health Administration were written on an eighth-grade level, as were most Material Safety Data Sheets, which are required for all chemicals used in the workplace.

The Board subsequently entered into a consent decree (the "Consent Decree") with the DOJ, which incorporated the Board's plan for the new Janitor position and Lead Janitor position, as well as its plan for a new salary structure. The purpose of the Consent Decree was to resolve all issues raised by the DOJ in a separate lawsuit that the DOJ, after its lengthy investigation of the Board, brought against the Board under Title VII, alleging discrimination against females in the hiring and promotion of janitors. See United States v. East Baton Rouge Parish Sch. Bd., No. 97-264-A-3. The Consent Decree provided that "interested and qualified incumbent employees in the Janitor I... positions [would] be provided ... an opportunity to be promoted to the new Janitor position." It made no mention of the reading requirement, though it did state that "[a]pplicants selected for possible employment as Janitors or Lead Janitors may be required by the School Board to pass additional lawful and job-related selection devices or requirements."

Thereafter, when Employees (except those who chose not to do so) applied for the new Janitor position, they took the "practical" test and the reading test.² Though all passed the "practical" test, only one passed the reading test.³ Unlike the day-by-day substitutes and applicants off the street who were later given an opportunity to apply for the new Janitor position, Janitor I employees who failed the reading test were given the option of either remaining in their old Janitor I jobs or taking the new Janitor position on a probationary basis, regardless of their current reading ability.⁴ Attendance at adult reading classes was a condition of this probation. Those who accepted the probationary Janitor position would be paid at the lowest step in the new pay scheme until demonstrating an eighth-grade reading level on the retest, at which time the person would be moved up the salary schedule to a step corresponding to the step she had occupied on the old Janitor I salary schedule. According to Employees, some were informed that, if they failed the reading test a second time, they would lose their jobs; and all were informed that, if they decided to accept the new Janitor position on a probationary basis, they could not return to their old Janitor I positions. Employees also claim that they were informed that any Janitor I employee who failed the first reading test for the new Janitor position would not be allowed to remain in her current Janitor I position while preparing to retake the test. Also, according to Employees, when Plaintiff Rosa Malveau asked James Manley why the Janitor I employees had to take a reading test for the new Janitor position, Manley responded, "That's what you get for filing a lawsuit."

After filing a charge with the Equal Employment Opportunity Commission, in which Employees claimed that the Board discriminated against them on the basis of their gender and retaliated against them for participating in the state court lawsuit, Employees filed the instant suit against the Board in the federal district court. Their federal suit claimed unlawful retaliation and disparate impact employment discrimination under Title VII, as well as unlawful retaliation under 42 U.S.C. § 1983. Concluding that Employees failed to state a prima facie case of retaliation or disparate impact discrimination under Title VII, or of retaliation under § 1983, the district court granted the Board's motion for summary judgment and dismissed all of Employees' claims.

We review the district court's grant of summary judgment de novo. Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608 (5th Cir.1...