Fortenberry v. Board of School Trustees
| Decision Date | 28 November 2000 |
| Docket Number | No. 2:98 CV 0628 AS.,2:98 CV 0628 AS. |
| Parties | Delores FORTENBERRY, Plaintiff, v. BOARD OF SCHOOL TRUSTEES, School City of East Chicago, Indiana, Doloris Lakich, Connie Manous, George Manous, and John Flores, Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
Bradley Hilbert, Gary, IN, for plaintiff.
Richard J. Lesniak, Sr., William M. Murakowski, Lesniak and Associates, East Chicago, IN, for defendants.
On or about December 17, 1998, this plaintiff, Delores B. Fortenberry, appearing by counsel filed a complaint in this case purporting to state a claim under the Civil Rights Act of 1964, Title VII and the Civil Rights Act of 1991, now cited as 42 U.S.C. § 1981(a). Apparently, also claims are made, initially at least, under 42 U.S.C. §§ 1981, 1983, 1985, and 1988.1 This cause is currently before the Court on Defendants' Motion for Summary Judgment filed February 1, 2000. Defendants also filed a Motion to Dismiss Plaintiff's Claim of Age Discrimination Pursuant to Federal Rule of Civil Procedure 12(h)(3) on May 8, 2000, and a Motion to Suppress Deposition Testimony of George Manous on September 18, 2000. The Plaintiff, an African American female in her 60's, alleges that she was discriminated against by the Defendants when she was passed over for a promotion to the position of Vice Principal of Central High School in favor of a twenty-eight year old white male who, as it turned out, did not have the required number of years of teaching experience to qualify for the position.
The Court has considered all the submissions of the parties, including supplemental briefs and testimony at oral arguments, and now rules as follows. Defendants' Motion to Dismiss Plaintiff's Age Claim filed on May 8 and Defendants Motion to Suppress filed on September 18, 2000 are hereby DENIED, but the Defendants' Motion for Summary Judgment filed on February 1, 2000 is hereby GRANTED, for the reasons set forth in the opinion below.
Summary judgment was requested by the defendants under Rule 56 of the Federal Rules of Civil Procedure, and this Court has jurisdiction under Title 28 U.S.C. §§ 1331 and 1343(3). Jurisdiction is also premised upon 42 U.S.C. Section 2000(e), including the 1991 Amendments.
This plaintiff has been a public school teacher since 1968 and was appointed to the position of Dean at Central High School in 1989. Def.s' Mem. in Supp. at 3. She remains a Dean as far as the papers in this case disclose. Id. In 1996, one of the three positions of Vice Principal at Central High School became available when Doloris Lakich, a Caucasian female in her "late 50's", was promoted from Vice Principal to Principal at Central High School. Id. As one of the Vice Principals, Lakich had previously served as the Plaintiff's supervisor for some two or three years before 1996. Id. The vacant Vice Principal job was posted pursuant to the collective bargaining agreement, and six individuals, including Fortenberry, applied. Id. An administrative group conducted interviews and made a recommendation to the Board of Trustees that Kevin Myers be appointed to the vacant position of Vice Principal. Id.
The administrative group that conducted the interviews was composed of five individuals: 1) Charles Carter, an African American male approximately 63 years of age and then Director of Pupil Services; 2) Raymond Scott, an African American male approximately 63 years of age and a Vice Principal at Central High School; 3) Juan Anaya, an Hispanic male approximately 48 years old, also a Vice Principal at Central High School; 4) Doloris Lakich, the new Principal of Central High School; and 5) Connie Manous, a Caucasian female approximately 58 years of age, then Director of Special Education. Def.s' Mem. in Supp. at 3. After conducting interviews with the applicants, this administrative group met and discussed the strengths and weaknesses of each applicant, providing input to Doloris Lakich, who used this information to decide which applicant to recommend to the Superintendent and School Board of the School City of East Chicago. Id. at 4. At this time, the Superintendent appears to have been Luis Gonzales, an Hispanic male approximately 50 years old. Addendum to G. Manous Aff.
The final responsibility for filling the vacant Vice Principal position rested with the Board of Trustees. Def.s' Mem. in Supp. at 4. At that time, the Board of Trustees had five members: 1) Elaine Kisisel, Ph.D. in Education, Caucasian female in her 50's; 2) Henry Gillis, African American male in his 60's and retired Principal of West Side Jr. High School in East Chicago; 3) Norman D. Comer, Ph.D. in Education, African American male in his 50's and retired School City Superintendent; 4) Ramon Colón, Hispanic male in his 60's, retired supervisor for Inland Steel and School Trustee for over 20 years; and 5) Fernando Trevino, Hispanic male in his 30's and an engineer at Amoco. Id. This Board of Trustees approved the appointment of Kevin Myers, a 28 year old Caucasian male and a former special education teacher, to the position of Vice Principal upon the recommendation of the Superintendent and the administration. Id.
Connie Manous, Director of Special Education, noted in her affidavit that this Vice Principal worked closely with the Special Education Department. Affidavit of Connie Manous at 2. Therefore, knowledge of the Individuals With Disabilities Act of 1997 and Section 504 of the Rehabilitation Act of 1973, as well as Indiana Article 7, was needed for the position. Id.
Fortenberry retained her position as one of the Deans at Central High School. Id. Soon after the appointment, on August 28, 1996, Fortenberry filed a grievance claiming a violation of the Collective Bargaining Agreement and of her rights when she was not selected for the position of Vice Principal at Central High School. Id. After hearing grievance presentations, the Board determined that Fortenberry's contract rights were not violated and that the best candidate had been selected for the position. Id. A formal answer was sent on October 3, 1996 by George Manous, who was designated to do so by the Superintendent. Id.
Next, the grievance was submitted to an Arbitrator for a binding decision. Id. The arbitrator determined that Fortenberry's contract rights were violated because Kevin Myers did not meet the criteria as posted for the vacant position in that he lacked the five years of teaching posted as a requirement, and also necessary to get an Administrative license. Id., see also Def.'s Ex. 5, Award of Arbitrator. However, the arbitrator further held that there was no hard proof to support Fortenberry's claim of discrimination, therefore, no monetary award would be ordered. Id. The arbitrator determined that the appropriate remedy was re-posting of the position within a reasonable time so the school corporation could hire a new Vice Principal for Central High School. Id. Fortenberry and Meyers both reapplied for the Vice Principal position at Central High School, as did Wesley Bennett, an African American male in his 40's currently serving as Principal of Block Junior High School in East Chicago. Id. Again, interviews were conducted and a recommendation made to the Board and on May 6, 1998, Wesley Bennett was appointed to the position of Vice Principal of Central High School. Pl.'s Ex. 31. This time, Fortenberry did not file grievance or claim of discrimination, however, this case was filed as indicated on or about December 17, 1998.
When the Indiana Professional Standards Board became aware that Myers had been issued an Administrator's license but lacked the required five years of teaching experience, the Board responded with a letter dated October 3, 1997 acknowledging that they had made a mistake, but that their usual policy was not to punish the individual. Pl.'s Ex. 25. The Board stated that the usual practice is to allow an individual to keep a mistakenly issued license with the condition that any deficiencies must be cured before the license can be renewed in five years. Id. Kevin Myers was reassigned temporarily to the vacant position of Principal of Block Jr. High School. Def.s' Mem. in Supp. at 5. Finally, it appears that the Indiana Board of Professional Standards also made a mistake when it issued Meyers his elementary license because the license included information that he was not required to do an internship when in fact he was. Pl.'s Ex. 35. Both deficiencies were corrected by Meyers, with the assistance of Connie Manous, Director of Special Education, as soon as he became aware of them. Pl.'s Ex. 36. Meyers continued in the position of Principal of Block Jr. High School. Id.
This is not a class action but rather an action by a single African American female who purports to make claims for racial, gender and age discrimination because she was not awarded promotion from Dean to Vice Principal at East Chicago Central High School. This case was reassigned by the Chief Judge of this Circuit to the undersigned Judge on January 11, 1999. Additionally, this plaintiff asserts under 42 U.S.C. § 1985 a conspiracy to discriminate against her and retaliate against her for filing a complaint with the United States Equal Employment Opportunity Commission. She filed a timely complaint with the EEOC and received a right to sue letter on October 7, 1998.
This court held an extensive pretrial conference on May 19, 2000 by which the parties were given an opportunity to discuss previously filed motions and to supplement those motions and bring them all within the ambit of Rule 56 of the Federal Rules of Civil Procedure. The supplements and responses have been filed and considered along with the remainder of the record and the motions now ripe for ruling.
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