Cherry v. Ritenour School Dist.

• Decision Date: 31 January 2003
• Docket Number: No. 4:01 CV 01498 ERW.,4:01 CV 01498 ERW.
• Citation: 253 F.Supp.2d 1085
• Parties: Lanita CHERRY, Plaintiff, v. RITENOUR SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

253 F.Supp.2d 1085

Lanita CHERRY, Plaintiff, v. RITENOUR SCHOOL DISTRICT, Defendant.

No. 4:01 CV 01498 ERW.

United States District Court, E.D. Missouri, Eastern Division.

January 31, 2003.

COPYRIGHT MATERIAL OMITTED

Herman L. Jimerson, Clayton, MO, John J. Allan, Allen Law Offices, St. Louis, MO, for Plaintiff.

Thomas A. Mickes, Paul N. Rechenberg, DOSTER AND JAMES, L.L.C., Chesterfield, MO, Charles S. Elbert, Jennifer L. Forsythe, Kohn and Shands, St. Louis, MO, Phylecia B. Reed, Tueth and Keeney, St. Louis, MO, for Defendant.

MEMORANDUM AND ORDER

WEBBER, District Judge.

This matter comes before the Court upon Defendant's Motion for Summary Judgment [doc. # 32].

I. BACKGROUND FACTS¹

Plaintiff Lanita Cherry, an African-American female, was employed as a probationary employee in the Ritenour School District during the 1999-2000 school year and most of the 2000-2001 school year. She acted as a school counselor at the Kratz Elementary School. Dr. Rita Wildhaber, Principal of Kratz Elementary, and Assistant Principal Kimberly McKinley supervised Plaintiffs work.

Principal Wildhaber hired Plaintiff in 1999.² During the 1999-2000 school year, Plaintiff received excellent recommendations from Assistant Principal McKinley, who understood Plaintiffs responsibilities and worked closely with her. According to Plaintiff, during her first year she did not work closely with Principal Wildhaber and Principal Wildhaber did not supervise her, in a practical sense. Principal Wildhaber gave Plaintiff a vague recommendation during the first year, which Plaintiff stated in her deposition was "because she was afraid I was going to leave the district." Principal Wildhaber recommended that Plaintiffs contract be renewed for the 2000-2001 school year.³

In October 2000, Principal Wildhaber spoke with Plaintiff regarding Plaintiffs job performance. On October 23, 2000, Principal Wildhaber advised Plaintiff that other staff members had complained about Plaintiffs performance as a counselor. Principal Wildhaber also expressed concern that Plaintiff was unwilling to help out during after school hours, Plaintiffs performance as a counselor was lower than previous counselors, Plaintiffs practice of keeping her door closed made her inaccessible, and Plaintiff failed to use her computer for counselor functions. Also on October 23, 2000, Assistant Principal McKinley counseled Plaintiff about completing students' special education referrals.⁴

On December 4, 2000, Plaintiff was given a Formative Data Form based upon scheduled observations and non-observed data. The Form cited Plaintiffs lack of organization of the special education program and indicated concerns about Plaintiffs lack of availability. Initially, Plaintiff refused to sign the form.⁵ Principal Wildhaber met with Plaintiff on December 4, 2000, to review concerns about Plaintiffs lack of organization and the concerns stated in the Formative Data Form. On December 5, 2000, Plaintiff was given a Professional Improvement Plan, which directed Plaintiff to better organize and coordinate special education services.⁶

Plaintiff contacted her union representative, Gilbert Balderama, about the criticism offered by Principal Wildhaber. After January 2001, Plaintiff called Mr. Balderama on a weekly basis but never told Mr. Balderama that she was being treated unfairly because of her gender.⁷ There is a dispute whether Plaintiff told Mr. Balderama that she was being treated unfairly because of her race. During Mr. Balderama's deposition, he was asked: "At any time during any of your written correspondence, your telephone calls, your meetings with Ms. Cherry, did she ever indicate to you that she thought she was being treated unfairly because of her race?" Mr. Balderama responded: "No, sir." Mr. Balderama later clarified that Plaintiff "felt like there was some discrimination there, and we don't deal with discrimination, and I say that we don't get into the issues of—and my suggestion was to her that if she felt there was discrimination there, that she needed to go [to the] EEOC, you know, file the EEOC paperwork, we had the paperwork in the office, we'd give it to her, and that was it." Later in the deposition, Mr. Balderama was asked whether Plaintiff ever used the word race during her complaints that she was being treated unfairly and Mr. Balderama replied: "That I can recall, no." Plaintiff disputes the contention that Plaintiff never told Mr. Balderama that she was being treated unfairly because of her race based upon Mr. Balderama's deposition testimony indicating that he sent Equal Employment Opportunity Commission ("EEOC") forms to Plaintiff. Plaintiff states that she gave a "strong indication" to Mr. Balderama that she was being discriminated against. In addition to contacting Mr. Balderama, Plaintiff faxed Personnel Director Catherine Cravens regarding Plaintiffs harassment concerns. She also discussed the issue with a union attorney.

On March 8, 2001, Plaintiff was given a second Formative Data Form. It cited Plaintiffs lack of coordination and scheduling of team meetings. It also cited Plaintiffs cancellation of and failure to reschedule meetings and her failure to utilize existing computer programs. Principal Wildhaber discussed the Form with Plaintiff on March 8, 2001, and Plaintiff received a second Professional Improvement Plan. The Plan was identified as "job-threatening." The Plan focused on Plaintiffs failure to maintain positive interpersonal relationships with school personnel. Principal Wildhaber discussed the Plan with Plaintiff.

Plaintiff received a performance evaluation from Principal Wildhaber on March 13, 2001. Plaintiffs organization skills and coordination of special education services were deemed as needing improvement. Plaintiff did not meet expectations on the criteria of demonstrating positive interpersonal relationships with personnel to accomplish the school district's vision, mission, and goals. On the March 13, 2001 evaluation, Principal Wildhaber recommended that Plaintiffs employment not be renewed for the next school year. Plaintiff admits that there were no racial comments made to her and that no one told her that duties and tasks were assigned to her because of her race.

On March 26, 2001, Plaintiff was notified that the Board of Education had voted not to re-employ her for the 2001-2002 school year. Mr. Balderama sent Plaintiff forms through which Plaintiff could file a grievance under the terms of the agreement negotiated between the Ritenour School District and the Union. Mr. Balderama testified in his deposition that the Board of Education handles grievances fairly. The Union did not file a grievance on Plaintiffs behalf because it was Mr. Balderama's opinion that the Ritenour School District did not treat people unfairly because of their race, gender, age, or disability.⁸

On March 30, 2001, Plaintiff called and notified the school that she would be staying home to take care of a sick child. Instead of staying home, Plaintiff went to a career fair. At her deposition, she could not remember where else she went before returning home on March 30, 2001. Plaintiff did not initially reveal her whereabouts on March 30, 2001. However, she later asked Principal Wildhaber whether Principal Wildhaber had seen her at the job fair and if she took Plaintiffs picture.⁹

Plaintiff states that she complained to management about being harassed. She testified in her deposition that she contacted the office of Catherine Cravens, the Assistant to the Superintendent, every time that she received a letter from Principal Wildhaber. Plaintiff states that some of the criticism of her work was given without a reasonable opportunity to meet expectations. Mr. Balderama was present during several of the meetings between Plaintiff and Principal Wildhaber. Mr. Balderama testified in his deposition that "[i]t seemed like expectations were changing. It seemed like Ms. Cherry would meet whatever was asked of her, and all of a sudden then something else, you know." He also stated that Plaintiff was not given sufficient time to remedy the concerns and some of the expectations were not reasonable because they were inconsistent and required Plaintiff to anticipate expectations which were unknown.

As evidence that Principal Wildhaber was unreasonable, Plaintiff points to a letter from a parent describing an incident where Principal Wildhaber "rudely busted" into Plaintiffs office and "demanded" that Plaintiff monitor recess. The parent also stated that Principal Wildhaber "rudely disrespected" Plaintiff by saying "So are you telling me you're not going, is that what you are saying, just tell me!" Plaintiff also points to a March 15, 2001 letter signed by Abbie Frank, a school psychologist, which states that Plaintiff was a dedicated counselor who worked very hard to complete her responsibilities.

Plaintiff contends that although Principal Wildhaber did not use racially tainted language, the perception of her prejudices were communicated to Plaintiff by other co-workers and students. On one occasion, Plaintiff was told that Principal Wildhaber said to another teacher, "You're black, maybe you can understand what he [a black student] is saying." Plaintiff also testified in her deposition that former secretaries, students, and parents complained about Principal Wildhaber's prejudices. Plaintiff heard from co-workers that Principal Wildhaber had made comments that represented a prejudiced mentality. Plaintiff also testified that when she told Principal Wildhaber that she had joined the Union, Principal Wildhaber responded: "You shouldn't have done that. They can't help you."

After being notified that her contract was not to be renewed, Plaintiff did not inquire as to the procedure for filing a grievance but was advised that she could fill out forms to initiate an EEOC investigation. She was not advised of any other administrative method for reporting discriminatory...