Peters v. Jenney, No. 01-2413

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Williams
• Citation: 327 F.3d 307
• Parties: Cheryl A. PETERS, Plaintiff-Appellant, v. Timothy JENNEY, Individually and in his official capacity as Superintendent of Schools; K. Edwin Brown, Individually and in his official capacity as Assistant Superintendent for Accountability; Nancy Guy, Individually and in her official capacity as a School Board Member; Sheila Magula, Individually and in her official capacity as Associate Superintendent for Curriculum and Instruction; School Board Of The City Of Virginia Beach, Virginia, Defendants-Appellees. United States Of America, Amicus Supporting Appellant.
• Docket Number: No. 01-2413
• Decision Date: 22 April 2003

327 F.3d 307 Cheryl A. PETERS, Plaintiff-Appellant,
v.
Timothy JENNEY, Individually and in his official capacity as Superintendent of Schools; K. Edwin Brown, Individually and in his official capacity as Assistant Superintendent for Accountability; Nancy Guy, Individually and in her official capacity as a School Board Member; Sheila Magula, Individually and in her official capacity as Associate Superintendent for Curriculum and Instruction; School Board Of The City Of Virginia Beach, Virginia, Defendants-Appellees.
United States Of America, Amicus Supporting Appellant. No. 01-2413 United States Court of Appeals, Fourth Circuit. Argued: June 4, 2002. Decided: April 22, 2003.

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ARGUED: Kristen M. Galles, Equity Legal, Alexandria, Virginia, for Appellant. Seth Michael Galanter, Appellate Section, Civil Rights Division, United States Department of Justice, Washington, D.C., for Amicus Curiae. Richard Hoyt Matthews, Pender & Coward, P.C., Virginia Beach, Virginia, for Appellees. ON BRIEF: Deborah C. Waters, Rutter, Walsh, Mills & Rutter, L.L.P., Norfolk, Virginia, for Appellant. Ralph F. Boyd, Jr., Assistant Attorney General, Dennis J. Dimsey, Appellate Section, Civil Rights Division, United States Department of Justice, Washington, D.C., for Amicus Curiae. Paul A. Driscoll, Pender & Coward, P.C., Virginia Beach, Virginia, for Appellees.

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

Vacated and remanded by published opinion. Judge WILLIAMS wrote the majority opinion, in which Judge DIANA GRIBBON MOTZ joined. Judge WIDENER wrote a dissenting opinion.

OPINION

WILLIAMS, Circuit Judge:

Dr. Cheryl Peters appeals from the district court's¹ grant of summary judgment rejecting her retaliation claims under Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000d (West 1994), 42 U.S.C.A. § 1983 (West 1994), and the First Amendment to the U.S. Constitution against the Virginia Beach School Board (the School Board or Board) and various individuals associated with the Virginia Beach School District.² Because we conclude that Title VI provides a cause of action for retaliation based upon opposition to practices that Title VI forbids, we vacate the district court's grant of summary judgment and remand to provide the parties with an opportunity to further develop the record regarding the nature of the practices that Peters opposed as well as to address other relevant issues. Because we conclude that

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Peters adequately pleaded a First Amendment retaliation claim and presented evidence sufficient to survive summary judgment as to the requisite causal relationship between her advocacy of changes to the gifted program and the nonrenewal of her contract, we vacate the district court's entry of summary judgment on Peters's First Amendment claim.

I. A.

Peters, who is Caucasian, is a specialist in gifted education and holds a doctorate in that field. She was hired in 1997 by the school board as the Director of Gifted Education and Magnet Programs. At the time she was hired, there were three African-Americans on the Board. Peters was recruited from the Rockfield, Illinois public schools, where she worked to effect compliance with a desegregation order, and she also advised other school districts on a consulting basis regarding Title VI compliance issues.

When Peters was hired, Virginia Beach Superintendent of Schools Timothy Jenney was aware that the Office of Civil Rights of the U.S. Department of Education (OCR) was considering a discrimination complaint filed by Curtis W. Harris, the President of the Virginia chapter of the Southern Christian Leadership Conference (SCLC). The complaint alleged that the school district had violated Title VI of the Civil Rights Act of 1964 by (1) failing to place black students in gifted programs on a proportionate basis; (2) failing to hire and promote black teachers and administrators on a proportionate basis; (3) "inappropriately" transferring black teachers and administrators; (4) discriminatorily assigning students to classes and/or ability groups; and (5) disciplining black students on a disproportionate basis.³ Jenney was aware that Peters was experienced in complying with the requests of the OCR, but Peters was not aware of the SCLC complaint at the time she was hired.

Within a few weeks after Peters was hired by the school district, Jenney called her to his office to discuss the complaint pending before the OCR and the need to "get OCR off [the school district's] back." (J.A. at 259.) Peters was directed to talk to the OCR, attempt to satisfy it, write an action plan to respond to its concerns, and successfully "handle" the concerns of parents regarding any changes to the gifted program caused by the school district's OCR concerns. (J.A. at 259.) Peters told the OCR that she perceived a "willingness, indeed commitment" on the part of the school district's administration to "provid[e] equitable opportunities for all students." (J.A. at 121.) She developed an eight-point "Action Plan" for the gifted program (the Plan), which in relevant part called for increased efforts to retain minority students in the program, better training of staff and teachers to recognize giftedness, expansion of recruitment efforts directed towards minority students, and enhanced efforts to inform parents and students about the program and about the "characteristics of giftedness." (J.A. at 495.) Jenney and the Board approved the Plan, and Peters asserts that the OCR "accepted" the Plan. (Appellant's Br. at 6.) In 2001, the OCR commended Jenney for "evidencing a strong commitment to ensuring equal access to gifted education and promoting educational excellence and opportunity for all students." (J.A. at 180.)

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Peters also developed an in-depth program model which partially was focused on improving minority participation in the program. One major element of this plan involved converting a gifted elementary school, known as the Old Donation Center (ODC), from operation on a one-day-a-week basis, with gifted students attending their home schools the other four days per week, to a full-time, five-days-a-week gifted school. Further, the plan called for the establishment of a gifted resource program in each school for students who were not admitted to ODC. Peters also promoted blanket testing of all first and third grade students, which she asserts was to be conducted in a manner that would make the identification process more "inclusionary."⁴ (J.A. at 264.)

In March of 1998, the School Board approved Peters's program model. Her relations with the school district's administration deteriorated, however, after her supervisor, Michael O'Hara, was replaced by Sheila Magula, who allegedly told Peters that she was opposed to Peters's program model. During a July 16, 1998, meeting, Magula complained to Peters of numerous performance inadequacies, ranging from nonresponsiveness to media inquiries to missed deadlines, a failure to return important telephone calls, and a failure to select the best applicants for positions at ODC and as gifted resource teachers in schools other than ODC. On September 1, 1998, Magula reprimanded Peters for missing work without an approved absence and recommended that she be docked one day's pay. According to Peters, the absence in question occurred because she needed to obtain medical treatment. On October 26, 1998, Jenney reprimanded Peters for failing to meet deadlines, failing to adhere to accepted employment practices in hiring teachers, and engaging in various alleged incidents of unprofessional conduct involving missed meetings, a lack of understanding of budgeting processes, and nonresponsiveness to various of Jenney's inquiries. Jenney also stated that "there is a tremendous amount of evidence that circumstantially links [Peters] with a great deal of ... unrest in the gifted and talented community."⁵ (J.A. at 49.)

Sometime in November of 1998, Jenney recommended that Peters be suspended from her position. After opposition developed among some parents, Jenney gave Peters a "second chance," but he placed her under the supervision of defendant K. Edwin Brown, the Assistant Superintendent for Accountability. Jenney asserts that he took this step because of his concerns that personality conflicts with Magula might be responsible for Peters's difficulties. On February 17, 1999, after supervising Peters for approximately ten weeks, Brown concluded that she

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had failed to improve her performance and recommended that Jenney terminate her immediately. Brown stated that he recommended terminating Peters because "she was incapable of leading the gifted program in a responsible, responsive manner."⁶ (J.A. at 45.) Jenney initially concurred in Brown's recommendation but withdrew his dismissal recommendation to the School Board prior to commencing a public hearing on the dismissal. Instead, Jenney decided to pursue nonrenewal of Peters's contract. Jenney avers that he was dissatisfied with Peters's performance because she missed meetings, failed to communicate with appropriate persons in the school district, inadequately planned and implemented changes to the gifted program, and caused divisions and controversy in the program. Forty out of fifty-three of the principals surveyed by Brown several months prior to the non-renewal of Peters's contract felt that "the gifted program lacks focus or direction" and that "there are serious issues which interfere with the effectiveness of the gifted resource program in their schools." (J.A. at 51.)

In March of 1999, the School Board, on a 10-1 vote, declined to renew Peters's probationary contract. The one dissenting member of the Board favored terminating Peters immediately rather than simply declining to renew her contract. It is undisputed that minority enrollment in the gifted program increased each year after Peters's departure.

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