Green v. Fairfax County School Bd.

• Decision Date: 07 July 1993
• Docket Number: Civ. A. No. 93-0104-A.
• Citation: 832 F. Supp. 1032
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Francine GREEN, Plaintiff, v. FAIRFAX COUNTY SCHOOL BOARD, et al., Defendants.

832 F. Supp. 1032

Francine GREEN, Plaintiff, v. FAIRFAX COUNTY SCHOOL BOARD, et al., Defendants.

Civ. A. No. 93-0104-A.

United States District Court, E.D. Virginia, Alexandria Division.

July 7, 1993.

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John M. Bredehoft, Charlson & Bredehoft, Fairfax, VA, for plaintiff.

Thomas J. Cawley, Kimberly Anne Newman, Hunton & Williams, Fairfax, VA, for defendants.

MEMORANDUM OPINION

HILTON, District Judge.

This matter came before the court on the defendant Fairfax County School Board's Motion for Summary Judgment. Plaintiff Francine Green has sued defendant Fairfax for alleged sexual discrimination, retaliation, and constructive discharge under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and unconstitutional denial of due process and equal protection of the laws pursuant to 42 U.S.C. § 1983.

Due to shrinking tax revenues, the Fairfax County School Board decided to reorganize the school system and reduce the number of its employees. A total of 299 full-time non-school based support positions were eliminated in the past two fiscal years. These job reductions occurred in all school system departments and at all levels of the bureaucracy.

As part of the budget cuts, the position held by Francine Green, was eliminated on July 1, 1992. At the recommendation of Mrs. Green's superior, Assistant Superintendent for Management Information Services Marjorie Oughton, four directorships were consolidated into two. Green had been a director.

To ease the impact of its budget cuts, the Board permitted displaced persons to remain employed by moving to a lower position and freezing their salaries for two years. All displaced employees are eligible for promotions in the future. Mrs. Green alleges sexual discrimination because she was not chosen for the one of the two consolidated positions. Mrs. Oughton has testified that she chose Mr. William Lang and Mr. John Jenkins because they had good communication skills and would help restore morale in the Division. Mrs. Oughton viewed Mrs. Green as having poor communication skills. In addition, Mrs. Green's subordinates did not like her.

Mrs. Green has stated that she "respects" Mr. Jenkins and Mr. Lang. Although Mrs. Green admits that she does not know their qualifications, she maintains that she was "uniquely qualified" for a director's position.

Mrs. Green filed a grievance with the Deputy Superintendent of Schools that she was not selected for a director's position due to Mrs. Oughton's age and sex discrimination. Eventually, the Fairfax County Civil Service Commission found no age or sex discrimination or retaliation against Mrs. Green. Because the Chairwoman of the Commission felt that Mrs. Oughton did not adequately articulate her reasons for selecting the two directors, however, a four member panel was formed to give independent advice on the selection of the two directors.

The panel's members were: Rachael Verville and Elliot Krash, both women from the school system who Mrs. Green has described as "great," Daniel Jackson of the Office of Human Relations with whom Green had "no problem," and Stephen Raucher, director of Montgomery County, Maryland's Management Information Systems Department.

Mrs. Green only applied to become the Director of Systems Development, not Director of Operations. The panel met with each of the four applicants and gave Mrs. Oughton a list ranking the applicants for each position. For the Director of Systems Development, the panel recommended: 1) Michael Shaulis; 2) Francine Green; 3) John Jenkins and; 4) William Lang. For the Director of Operations, the panel recommended: 1) Michael Shaulis; 2) John Jenkins and 3) William Lang.

The panel informed Mrs. Oughton that Mr. Shaulis preferred the Systems Development post. Following the panel's recommendation, Mrs. Oughton appointed Mr. Shaulis as Director of Systems Development and Mr. Jenkins as Director of Operations. Mrs. Green never filed any grievance about not being selected Director of Systems Development.

Mrs. Green claims that Mrs. Oughton retaliated against her for filing her grievance by excluding her from planning meetings relating to the new organizational structure. She also alleges that Mr. Jenkins was rude to her at various times and holds Mrs. Oughton responsible for this alleged attitude. Mrs. Green also alleges that she failed to receive "credit" for involvement in a catalogue. Mrs. Green complained of this allegedly retaliatory treatment in a memo to Mrs. Oughton dated April 6, 1992. Mrs. Oughton responded on April 13, 1992 and stated that these allegations were "just things that happen everyday in an office."

As further evidence of Mrs. Oughton's allegedly discriminatory attitude toward women, Mrs. Green alleges that Mrs. Oughton once said that Mr. Lang reminded her of her father and described Mr. Jenkins as a "big teddy bear." In addition, Mrs. Oughton asked male directors to drive her to the train station, but never made such requests to Mrs. Green.

Mrs. Green has not reported to work since June, 1992, but remains a Fairfax employee. Mrs. Green is currently on leave without pay following a paid disability leave for a depressive disorder which she alleges results from not being hired as a director. Mrs. Green has admitted that her position remains available to her, that she was not fired, and did not resign. If Mrs. Green were to return to work, she would receive the same pay in her new position as she had as a director and would be eligible for promotions as positions become available.

Grants of summary judgment motions are warranted if the pleadings, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact and that the moving party will prevail as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

I. Sex Discrimination

As the Supreme Court has recently reiterated, the ultimate issue in any discrimination case alleging disparate treatment is whether there was intentional discrimination. St. Mary's Honor Center, et al. v. Hicks, ___ U.S. ___, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). In order to satisfy the burden of establishing proof of discrimination and to withstand summary judgment, Mrs. Green must either produce 1) specific evidence of discrimination or 2) satisfy her burden under the judicially created proof scheme established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1982). See EEOC v. Clay Printing Co., 955 F.2d 936, 940 (4th Cir.1992). Under either method, Mrs. Green must prove that gender was the determining factor; that "but for" the employer's intent to discriminate on the basis of sex, she would have not been adversely affected. Clay, 955 F.2d at 941; Conkwright v. Westinghouse Electric Co., 933 F.2d 231, 234 (4th Cir.1991).

Under the McDonnell Douglas/Burdine proof analysis, Mrs. Green must first establish a prima facie case of discrimination by proving the following elements: 1) Membership in a protected class; 2) Application for the position in question; 3) Qualification for the position; and 4) rejection for the position in favor of a male under circumstances giving rise to an inference of unlawful discrimination. Alvarado v. Board of Trustees of Montgomery Community College, 928 F.2d 118, 121 (4th Cir.1991).

If the plaintiff establishes a prima facie case, the defendant must articulate a legitimate, non-discriminatory reason for the employment action. The employer need only articulate a legitimate reason, and need not prove the absence of a discriminatory motive. Clay Printing, 955 F.2d at 941.

Mrs. Green cannot establish the second element of a prima facie case of discrimination regarding the selection for Director of Operations position, because she concedes that she never applied for that position. Alvarado, 928 F.2d at 121.

Mrs. Green cannot satisfy the fourth element of a prima facie case regarding the selection for either director position, because she cannot prove that she was rejected under "circumstances giving rise to an inference of unlawful discrimination." Alvarado, 928 F.2d at 121. There is simply no evidence from which an inference of unlawful discrimination can reasonably be made.

Mrs. Green concedes that her position was eliminated during the course of system-wide personnel reductions resulting from budgetary restrictions. The position of an identically situated male MIS director was eliminated by Mrs. Oughton during the reductions. Both times Mrs. Oughton made director selections, a male incumbent director was downgraded along with Mrs. Green. Of the six MIS positions Mrs. Oughton eliminated, three were held by men and three by women. The decisions Mrs. Green complains of were made by a woman, recommended by a four-person panel that consisted of two women, and applied equally to men. The overwhelming number of school system personnel are women, including over two thirds of the managerial staff. Also, the School Board's Chairman is a woman. There is not a scrap of evidence in this record from which sex discrimination can be inferred, and Mrs. Green cannot establish a prima facie case that Mrs. Oughton denied her a director's position because she is a woman.

The School Board can do more than meet its burden of articulating a non-discriminatory reason for Mrs. Green's non-selection. It can present overwhelming and undisputed evidence that the decision was not based on sex discrimination.

The initial elimination of Mrs. Green's position resulted from a universally recognized and legitimate, non-discriminatory business reason: The school system was reducing and streamlining its work force in response to budgetary...