Marlow v. Chesterfield County Sch. Bd.

• Decision Date: 03 November 2010
• Docket Number: Civil No. 3:10cv18–DWD.
• Citation: 749 F.Supp.2d 417
• Parties: Debra MARLOW, Plaintiffs,v.CHESTERFIELD COUNTY SCHOOL BOARD, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

749 F.Supp.2d 417

Debra MARLOW, Plaintiffs,

v.CHESTERFIELD COUNTY SCHOOL BOARD, Defendant.

Civil No. 3:10cv18–DWD.

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

Nov. 3, 2010.

Craig Juraj Curwood, Curwood Law Firm, Cullen Dennis Seltzer, Seltzergreene PLC, Richmond, VA, for Plaintiff.Michael S.J. Chernau, Stylian P. Parthemos, Chesterfield County Attorney's Office, Chesterfield, VA, for Defendant.

MEMORANDUM OPINION

DENNIS W. DOHNAL, United States Magistrate Judge.

This matter is before the Court by consent of the parties pursuant to 28 U.S.C. § 636(c) on Defendant's motion for summary judgment and Plaintiff's motion for leave to file supplemental exhibits in response to summary judgment. The matter has been thoroughly briefed after extensive discovery, and the Court has entertained oral argument. For the reasons set forth herein, the Court GRANTS the Plaintiff's motion for leave to file supplemental exhibits and DENIES the Defendant's motion for summary judgment.

I. PROCEDURAL BACKGROUND

Debra Marlow (“Marlow” or “Plaintiff”) brings this single-count age discrimination action against the Chesterfield County School Board (“School Board” or “Defendant”) pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”). She alleges that her undisputably successful twenty-year career as an administrator in the school system ended in her being compelled to take early retirement after the decision was made to demote her based on the impermissible reason of her age. As the School Board has asserted, the essential inquiry on summary judgment focuses on whether the comment by the Defendant's agent and employee, Superintendent Marcus Newsome (“Superintendent” or “Newsome”), concerning Marlow's lack of “21st Century skills” as a reason for the proposed demotion could constitute evidence of age discrimination. (Def.'s Br. Supp. Mot. Summ. J. (“Def.'s Br.”) at 19.)

II. PLAINTIFF'S MOTION FOR LEAVE

The case has progressed with contentious discovery, with each party zealously disputing the proper scope of discoverable material. On September 15, 2010, in response to the Plaintiff's motion to compel, the Court issued an Order compelling discovery and staying the Plaintiff's obligations to file an opposition to the Defendant's motion for summary judgment. Admittedly, the Order compelled the parties to abide by a “tight” schedule in order to preserve the scheduled trial date. Based on the present record, it appears that the Defendant has fully complied with the Order in good faith.

As part of their compliance with the previous Order of the Court, Defendants produced 3,446 emails to Plaintiff's counsel on the afternoon of October 4, 2010, approximately one week before the Plaintiff's opposition papers were due to be filed in response to Defendant's motion for summary judgment. On October 17, the Plaintiff moved for leave to file a document that the Defendant produced among the large volume of emails. Defendants oppose leave to file the supplemental evidence, citing primarily procedural reasons, while also, however, asserting that the documents, in fact, support its case. It is well within the Court's discretion to adjust briefing schedules. See, e.g., Fed.R.Civ.P. 56(c) (the deadlines under Rule 56 apply “unless a different time is set by local rule or the Court orders otherwise ”) (emphasis added). Because the Court has maintained a confined schedule, and finding no prejudice or undue delay to the Defendant, the Court will consider the supplemental evidence to the extent material, and therefore will grant the Plaintiff's motion for leave to submit the additional documentation.

III. FACTS

The Court has reviewed each party's statement of undisputed facts, including the extensive supporting documentation filed in support of the respective positions. Resolving all genuine disputes of material fact in favor of the Plaintiff, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), as required, and discounting those factual assertions that are immaterial, the Court has concluded that the following represents the undisputed material facts for purposes of resolving the pending motion for dispositive relief.

In 1987, the School Board hired Marlow to serve as the Director of Community Relations (“DCR”), and she continued to successfully serve in this position for approximately twenty (20) years. (Pl.'s Br. Opp'n Mot. Summ. J. (“Pl.'s Br.”) at Exs. 2, 3; Marlow Aff. ¶ 1.) Her primary role as DCR was that of public relations director of the Chesterfield County school system, reporting directly to the Superintendent. (Marlow Aff. ¶ 1.) Until the creation of the Director of Business and Government Relations (“DBGR”) position in 1998, Marlow's responsibilities also included legislative lobbying on behalf of the School Board. ( Id. at ¶¶ 1, 2.) The record indicates that she was successful in the position throughout her career. ( Id. at ¶ 3; Pl.'s Br. at Exs. 2, 3.)

Around 2004, Tim Bullis (“Bullis”) was hired as Marlow's Assistant Director of Community Relations. Bullis was previously a newspaper reporter with approximately two (2) years of experience in the educational field. (Pl.'s Br. at Ex. 4.) It is undisputed, as well, that Bullis was successful throughout his tenure in his position. In fact, there is at least some evidence that Newsome favored Bullis' suggestions, and that Marlow would, at times, have Bullis present her ideas to Newsome, “masked” as his own. (Marlow Decl. ¶ 5.)

In 2006, the School Board hired Dr. Newsome to serve as Superintendent. During his first year, he led the School Board in an effort to implement a six-year strategic plan to implement “21st Century skills” at all levels of the Chesterfield County school system. (Newsome Aff. ¶ 4; Evans Aff. ¶¶ 5, 6; Def.'s Br. Supp. Mot. S.J. (“Def.'s Br.”) at Exs. B, C.) It is beyond dispute that, at least in large measure, the otherwise vague phrase “21st Century skills” refers to a nationally-recognized skill set. (Newsome Aff. ¶ 5; Evans Aff. ¶ 7; Def.'s Br. at Ex. D, E.) ¹ The primary focus of this skill set concerns the integration of modern technologies for research, organization, evaluation, and communication of information. (Def.'s Br. at Ex. D; Newsome Aff. ¶ 6.) In essence, “21st Century skills” became a priority within the School Board's strategic plan under Newsome's leadership. ( See Def.'s Br. at Ex. F.)

Until 2007, Marlow reported directly to the Superintendent in her capacity as DCR. As such, she participated in the Superintendent's “Direct Report Meetings.” ² (Marlow Aff. ¶ 6.) In mid–2007, the Superintendent decided that Marlow should instead report to the Executive Assistant Superintendent and no longer attend the “Direct Report Meetings.” (Newsome Dep. 8:23–9:1, 10:1–10:13, 84:7–84:15.) Between late 2007 and early 2008, for an approximately six (6) month period, Bullis served as the interim Executive Assistant Superintendent. (Bullis Dep. 5:16–5:25.) ³ During this time, to avoid the “awkward arrangement” of Marlow reporting to her former subordinate, the Superintendent made Marlow his “direct report” again, also including her in the “Direct Report Meetings.” (Newsome Dep. 17:1–17:11; Marlow Decl. ¶ 8.)

In the spring of 2008, Marlow reluctantly accepted the position of DBGR at the behest of the Superintendent. (Newsome Aff. ¶¶ 11, 12; Evans Aff. ¶ 12; Marlow Decl. ¶ 9.) Marlow opposed the transfer, and proposed that the DBGR responsibilities be reassigned to her as DCR, a measure that would have purportedly “saved” Chesterfield County approximately $150,000 in budgetary allotment. (Marlow Decl. ¶ 9; Newsome Dep. 28:16–28:23; 29:21–30:3.) Indeed, Marlow had previously performed the same responsibilities as DCR. (Marlow Decl. ¶ 9.) However, Newsome rejected Marlow's idea and proceeded with the transfer, as subsequently adopted by the School Board. ( Id.) As a result of the transfer, Marlow no longer attended the “Direct Report Meetings.” ( Id. ¶ 11.) ⁴

In the Spring of 2008, it also started to become apparent to the Superintendent that significant budget reductions were on the horizon for fiscal year 2009, although the extent of future “cuts” was not yet clear. (Pl.'s Br. at Ex. 6.) It was also obvious that some measure of fiscal strain would affect the fiscal year 2010 budget. ( Id.) However, there is no evidence that at that time, the Superintendent had any knowledge, or intention, that any particular position would be terminated pursuant to a future reduction in force (“RIF”) initiative.

In the early summer of 2008, the School Board conducted a public, competitive hiring process to replace Marlow as DCR. (Newsome Aff. ¶ 13; Evans Aff. ¶ 15; Def.'s Br. at Ex. N.) There is no dispute that Newsome favored Bullis for this position; and that, in fact, Marlow provided a reference in support of Bullis. The panel narrowed a field of forty-three applicants to six, interviewed each of the six, and ultimately recommended Bullis. ( Id.) The School Board voted to accept the recommendation that Bullis be promoted to DCR, and he began his work in the position on July 1, 2008. (Def.'s Br. at Ex. M.)

By October 2008, the financial forecasts for the future School Board budget appeared even more dismal than first anticipated. It became clear that the budget for fiscal year 2010 would be dramatically impacted “like no other in [ ] 30 years.” (Kitchen Aff. ¶ 9; Def.'s Br. at Ex. R.) By November and December of 2008, it became obvious that the projected shortfall could reach approximately $52 million. (Newsome Aff. ¶ 14; Kitchen Aff. ¶ 10; Def.'s Br. at Ex. S.) On December 9, 2008, the worsening financial situation prompted Kathy Kitchen (“Kitchen”), the Assistant Superintendent for Finance, to forward an email to all Assistant Superintendents advising of the need to make significant budgetary reductions. (Kitchen Aff. ¶ 11; Def.'s Br. at Ex. T.)

On December 10, 2008, Dr. Sharon...