Pinder v. John Marshall Law Sch., LLC
| Citation | 11 F.Supp.3d 1208 |
| Decision Date | 31 March 2014 |
| Docket Number | No. 1:12–cv–3300–WSD.,1:12–cv–3300–WSD. |
| Parties | Kamina PINDER and Scott Sigman, Plaintiffs, v. JOHN MARSHALL LAW SCHOOL, LLC, and John Marshall Law School, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
Edward D. Buckley, Jaime Lyn Duguay, The Buckley Law Firm, LLC, Atlanta, GA, for Plaintiffs.
Jonathan Robert Poole, Mary M. Brockington, Strickland Brockington Lewis, LLP, Atlanta, GA, for Defendants.
This matter is before the Court on Magistrate Judge Justin S. Anand's Non-final Report and Recommendation (“R & R”) [79] on Defendant John Marshall Law School, LLC's Motion for Summary Judgment [57].
Plaintiffs Kamina Pinder (“Pinder”) and Scott Sigman (“Sigman,” and together “Plaintiffs”) are ex-employees of Defendant John Marshall Law School, LLC (“Defendant” or “JMLS”). On August 1, 2006, Pinder, an African–American female, began working for JMLS as an Associate Professor of Legal Skills. On July 1, 2007, Sigman, a white male, began working for JMLS as an Associate Professor of Legal Skills.
In the fall of 2006, Pinder applied for a tenure-track position. In early 2007, Dean of JMLS Richardson Lynn (“Dean Lynn”) told her that her application was denied. Pinder complained to Dean Lynn that she believed she had been discriminated against based on her race when she was not moved to the tenure track. Pinder drafted a report to the American Bar Association pointing out what she believed to be patterns of race-based discrimination at JMLS, and she forwarded the draft to Dean Lynn, JMLS Board of Directors member Kevin Ross, and Dr. Michael Markovitz, who was then the chairman of the Board of JMLS. During the 2007–08 academic year, Pinder reapplied for a tenure-track position to teach doctrinal legal courses, and she received substantial support for her application. She was offered, and she accepted, a tenure-track position for the 2008–09 academic year. She was assigned to teach doctrinal courses, and a legal skills class.
On June 14, 2010, Pinder was extended an offer to continue teaching on the doctrinal tenure track. In the offer letter from Dean Lynn, Dean Lynn stated:
On June 14, 2010, JMLS renewed Sigman's contract for the 2010–11 academic year. Sigman's offer letter incorporated the Faculty Handbook (“the Handbook”) by reference and also stated that “[r]egularly engaging in law practice, having an on-going relationship with a law firm or business, being listed on a law firm letterhead, or having a professional telephone listing is not permitted.”
During the 2010–11 academic year, Plaintiffs held probationary, full-time appointments with JMLS. Their appointments were subject to renewal or non-renewal each academic year, pursuant to Section 405(c) of the Handbook.
During the spring and summer of 2010, Pinder and Sigman began organizing a for-profit company called Law School Advantage (“LSA”), a summer preparation program for incoming law students. Plaintiffs planned for LSA to be a one-week summer program in which students would learn basic law school skills, including how to read a case and how to write a case brief. Plaintiffs intended to launch the company in July, 2011. In the summer of 2010, Pinder spoke to Dean Lynn about starting a summer preparation course for incoming law students, and Dean Lynn said it was a “good concept.” Dean Lynn understood Pinder's inquiry to be a “very preliminary conversation.”
Pinder alleges that she presented her idea to Dr. Markovitz, and Dr. Markovitz gave her permission to start the program. Dr. Markovitz has no specific recollection of this conversation and strongly denies giving Pinder permission to start a business around this concept. Dr. Markovitz testified at his deposition that he “would have told [Pinder] whatever she want[s] to do to make more money at the school, [she has] got to talk to the dean about it.”
Plaintiffs created and launched LSA and its website using JMLS computers. They opened a post office box and obtained a telephone number for the business. Plaintiffs also advertised to students on LSA's website and on Facebook, and filed a Certificate of Organization, Articles of Organization, and Annual Registration for the company. Plaintiffs do not dispute that they used JMLS property to launch LSA, but they contend that they only did so after observing other professors using JMLS computers for their own business ventures.
Plaintiffs used their JMLS credentials and JMLS student testimonials to promote their business. LSA's website announced plans “to expand throughout the Southeastern region” and “grow the business nationally.”
Plaintiffs worked on LSA the entire 2010–11 academic year. In February, 2011, Dean Lynn became aware of Plaintiffs' LSA venture. Defendant contends that Lynn reviewed LSA's marketing materials and documents and decided that LSA conflicted with Plaintiffs' responsibilities at JMLS. Defendant also alleges that Dean Lynn was concerned about the impression of unfairness that might be inferred by the fact that JMLS professors offered, albeit for a fee, a preparation course to those fee-paying JMLS students prior to their enrollment.
Defendant argues that the Handbook required Plaintiffs to ask Dean Lynn's permission before starting LSA. Plaintiffs do not dispute that they did not obtain Dean Lynn's permission before launching LSA. They argue, however, that Section 405(c) of the Handbook only requires faculty to obtain permission for “consulting,” and not for the type of business Plaintiffs started.
In February 2011, Sigman complained to the Retention, Promotion, and Tenure Committee at JMLS (the “RPTC”) and to Dean Lynn that associate professor Michelle Butts was engaging in discriminatory practices. Sigman had received multiple complaints from students that professor Butts discriminated against them by showing favoritism toward female and minority students. Sigman complained that Butts graded minority students more favorably than non-minority students.
On February 28, 2011, Sigman contends that he spoke with Jeff Van Detta, Chair of the RPTC, and told him that he believed he and JMLS students were being discriminated against on the basis of race. On March 1, 2011, Sigman claims he met with Dean Lynn and complained about racial and gender discrimination directed against him and certain students. Sigman argued that Butts had a grading policy that favored minority and female students, and that this policy was consistent with Butts's bias against Sigman. Sigman argued Butts's bias was exemplified in a comment Butts wrote to Sigman, in which she told him, “I'm not your bitch, Scott.” Defendant contends that Sigman never complained to Dean Lynn that Butts had discriminated against Sigman personally.
On March 2, 2011, Plaintiffs contend that Dean Lynn made his non-renewal decision, as evidenced by an email Dean Lynn wrote to Dr. Markovitz on March 2, 2011, in which he stated:
Michael, rather than fire Kamina and Scott for cause, I have decided to notify them that their contract will not be renewed, as I am doing with Profs. Marbes and Butts. The faculty handbook has a lot of process for firing for cause, including an appeal to the Retention, Promotion & Tenure Committee, before an appeal to you. Since I assume that they will finish out their courses professionally, other than trashing me, non-renewal will [be] easier and reduces, but does not eliminate, the threat of litigation. It will cost one more month of pay, since they're entitled to six months notices of non-renewal, but I think that's cheap compared to the alternative. I'm planning to talk to them tomorrow. Thanks.
The next day, March 3, 2011, Dean Lynn met with Pinder and Sigman separately and informed them that their contracts would not be renewed. Dean Lynn gave Plaintiffs a “non-renewal” letter, which stated that Plaintiffs were not being terminated for cause, but that they were entitled to know why their contracts were not being renewed. The letter stated that Plaintiffs' contracts were not being renewed because they established and engaged in a business, which creates possible conflicts of interest, while employed as full-time members of the JMLS faculty. Pinder's non-renewal letter also stated additional reasons for her termination, including her alleged “failure to cooperate by submitting an explanation to the Board of Directors for the proposed Faculty Handbook change that you supported, and failure to follow law school policies on make-up classes.”2 Defendant contends that no other JMLS faculty members have ever started and operated a for-profit business without permission from the Dean or a former Dean.
Plaintiffs argue that JMLS's reasons for terminating them were a pretext for unlawful discrimination because professor Kathleen Burch started and operated a for-profit business in 2012, and did not discuss her business with Dean Lynn until “a few days before February 18, 2013.” Burch, a white woman, began operating a for-profit bar exam tutoring business in December, 2012. According to Plaintiffs, Burch obtained from Dean Lynn's secretary the contact information of JMLS students who failed the Georgia Bar Examination, and used JMLS resources to send correspondence to those students. Burch also used the JMLS name on advertisements for her business. Burch began soliciting students for her tutoring business as early as December 11, 2012. Plaintiffs contend that she did not ask Dean Lynn for permission to start her business until February 18, 2013. On June 11, 2013, Dean Lynn testified at his...
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