Shanklin v. Fitzgerald

Decision Date04 February 2005
Docket NumberNo. 04-1222.,04-1222.
Citation397 F.3d 596
PartiesJanet SHANKLIN, Plaintiff/Appellant, v. Katheryn E. FITZGERALD; Robert D. Drummond; Keith A. Gillming; Randall J. McArthur; Pat Bryant; Ronald C. Kuschel, Defendants, Pattonville R-111 School District Board of Education, Defendant/Appellee, Sharon Washington; Jennifer Schneider; Jeff Marion; Tom Morgan, D. Hugh H. Kinney, Defendants, Marc Montgomery, Movant Below.
CourtU.S. Court of Appeals — Eighth Circuit

Lyell H. Champagne, argued, St. Louis, MO, for appellant.

Margaret A. Hesse, argued, St. Louis, MO (Stephanie T. Reh, on the brief), for appellee.

Before RILEY, JOHN R. GIBSON, and GRUENDER, Circuit Judges.

RILEY, Circuit Judge.

Janet Shanklin (Shanklin) brought this race discrimination and retaliation action against her former employer, the Pattonville R-111 School District Board of Education (Board), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and the Missouri Human Rights Act (MHRA), Mo.Rev.Stat. §§ 213.010-213.137. Shanklin appeals the district court's1 decision (1) to strike Shanklin's unauthenticated exhibits attached to her opposition to the Board's motion for summary judgment, and (2) to enter summary judgment in favor of the Board. We affirm. Additionally, we grant the Board's motion to strike portions of Shanklin's appendix on appeal.


On August 27, 1991, Shanklin, an African-American woman, began teaching marketing education for the Pattonville R-111 School District in St. Louis, Missouri. Shanklin taught at the Positive School, an alternative high school for "at risk" students.

From 1991 to 1997, Mike Black (Black) was the Assistant Principal of the Positive School and Shanklin's immediate supervisor. During his supervision of Shanklin, Black rated Shanklin's performance as acceptable. Marc Montgomery (Montgomery) replaced Black as the Assistant Principal at the start of the 1997-98 school year. Montgomery immediately had concerns regarding Shanklin's performance. In particular, Montgomery observed Shanklin's classes and was troubled Shanklin did not (1) use a variety of teaching methods effectively, (2) demonstrate an ability to communicate effectively with students, or (3) manage student behavior in a constructive manner. Notwithstanding these concerns, Montgomery rated Shanklin's performance as acceptable in her 1997-98 Formative Evaluation.

During the 1998-99 school year, Montgomery reprimanded Shanklin on two occasions: (1) in March 1999, Montgomery reprimanded Shanklin for using the word "fucking" during a confrontation with a student; and (2) in May 1999, Montgomery reprimanded Shanklin for distributing an individual's personal income tax form to the class for instructional purposes without the individual's consent. Shanklin admitted to cursing and to disseminating the tax form without the individual's prior knowledge or consent. Montgomery's Summative Evaluation of Shanklin for the 1998-99 school year stated Shanklin needed improvement in four areas: (1) using a variety of teaching materials effectively, (2) demonstrating an ability to communicate effectively with students, (3) managing student behavior in a constructive manner, and (4) demonstrating positive interpersonal relationships with students. On May 7, 1999, Montgomery placed Shanklin on a Performance Improvement Plan (PIP), which was designed to help Shanklin cure her four areas of deficiency.

Montgomery reprimanded Shanklin twice more during the 1999-2000 school year. Montgomery first reprimanded Shanklin in October 1999, after students complained Shanklin told them they could not go to college given their "past patterns." The second reprimand occurred in May 2000, after a student complained Shanklin called the student a "dumb shit" and told him, "if [Shanklin] was not a teacher, [she] would knock [the student] upside [his] head with a stick." After Montgomery observed Shanklin's classroom on several occasions during the 1999-2000 school year, Montgomery did not believe Shanklin had cured the deficiencies noted in the PIP. At the end of the 1999-2000 school year, Montgomery met with Shanklin to implement another PIP. Since it was the end of the school year, the school administrators decided not to implement the PIP until the start of the next school year.

In the spring of 2000, the Board created a new business education teacher position at the Positive School. When the Board was unable to fill the new position with a qualified individual, the Board transferred Shanklin to the position because Shanklin was qualified for the position. The Board then hired a white female to teach marketing education. On October 2, 2000, Shanklin filed a grievance with the Board regarding the transfer. On October 6, 2000, Shanklin filed a race discrimination charge with the Equal Employment Opportunity Commission (EEOC). The Superintendent of Schools, Dr. Hugh Kinney (Dr. Kinney), denied Shanklin's grievance on November 1, 2000, finding the Board followed the applicable policies relating to teacher assignments. In his denial letter, Dr. Kinney further "express[ed] a concern regarding [Shanklin's] relationships with students," and suggested "a pattern is developing which is inconsistent with a productive learning environment." On November 9, 2000, Shanklin accepted Dr. Kinney's decision. Shanklin voluntarily dismissed her EEOC charge on February 28, 2001.

In October 2000, Montgomery issued Shanklin a second PIP. Shanklin refused to sign the PIP until December 2000. In the meantime, Shanklin's performance deficiencies continued. On October 26, 2000, Montgomery reprimanded Shanklin for cursing in class. A few days later, Montgomery again reprimanded Shanklin, this time for tape recording her class after she was directed not to use a tape recorder.

On November 7, 2000, the Board, through Dr. Kinney, issued Shanklin a thirty-day warning letter, i.e., Notice of Deficiencies, specifying several items of "incompetency, inefficiency and insubordination." The Notice of Deficiencies advised Shanklin the Board believed Shanklin's "conduct reflects a mental condition making [Shanklin] unfit to instruct or associate with children." The Notice of Deficiencies further warned that if her performance did not improve within thirty days, the Board would recommend Shanklin's dismissal. During Shanklin's thirty-day probationary period, she failed to cure her deficiencies. Shanklin, on the other hand, expressed concerns about Montgomery's supervision and about not having enough time to resolve her deficiencies.

Rather than beginning the process to discharge Shanklin, the Board, in January 2001, issued Shanklin a second Notice of Deficiencies, giving her an additional five months to correct her deficiencies. During the five-month probationary period, a three-member team evaluated Shanklin's performance. At Shanklin's request, the Board removed Montgomery from Shanklin's evaluation team. Shanklin requested Assistant Principals Sharron Washington (Washington) or Vince Grippi be placed on the evaluation team. The Board placed Washington, an African-American, on Shanklin's evaluation team. The Board also granted Shanklin's request that her classes be videotaped.

The evaluation team observed Shanklin's classes by announced and unannounced classroom visits as well as by reviewing videotapes of Shanklin's classes. After reviewing Shanklin's classroom performance, each evaluator expressed specific concerns about Shanklin's performance. Based on the evaluators' observations, on June 20, 2001, Dr. Kinney issued a Statement of Charges, alleging Shanklin was (1) incompetent and inefficient in failing to maintain satisfactory relationships with students and failing to utilize effective instructional methods, and (2) insubordinate in failing to comply with Board policy.

Pursuant to Shanklin's request, the Board conducted a hearing regarding the Statement of Charges. At the hearing, Shanklin was represented by counsel, and her counsel cross-examined adverse witnesses and presented evidence in Shanklin's defense. All three members of Shanklin's evaluation team testified they had concerns about Shanklin's performance, and each evaluator recommended the Board discharge Shanklin. After considering the evidence presented at the hearing, the Board unanimously voted to discharge Shanklin.

Shanklin sued the Board in federal court, alleging (1) race, sex, and age discrimination; (2) harassment; and (3) retaliation. Shanklin later abandoned all her claims except race discrimination and retaliation. The Board filed a motion for summary judgment on Shanklin's remaining claims. In opposing summary judgment, Shanklin submitted ninety-four exhibits, many of which were unauthenticated. Shanklin states her supporting affidavits "were inadvertently left out of the paper filing." The Board filed a motion to strike Shanklin's unauthenticated exhibits, which Shanklin did not oppose. The district court granted the Board's motion to strike, because Shanklin "submitted no affidavits in opposition to the motion for summary judgment." Without any affidavits to authenticate Shanklin's exhibits, the district court considered Shanklin's own sworn statements and the Board's authenticated evidence.

Citing the dearth of evidence supporting Shanklin's claims, the district court granted the Board's motion for summary judgment. With regard to her race discrimination claim, the district court held Shanklin failed (1) to establish a prima facie case of race discrimination, and (2) to show the Board's reasons for discharging her were pretextual. As to Shanklin's retaliation claim, the district court concluded (1) Shanklin did not plead a retaliation claim under Title VII, e.g., not alleging the filing of her EEOC charge and not mentioning the word "retaliation," and (2) she failed to establish a prima facie case of retaliation under the...

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