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Principal can’t bring discrimination, retaliation claims

Photo by dfuentesphotostock

Photo by dfuentesphotostock

A school principal who received a negative evaluation and was reassigned to what she deemed a lesser position could not bring claims for retaliation and hostile work environment, a U.S. magistrate judge in Rhode Island has ruled.

Plaintiff Nadine Lima, an African-American woman, had previously sued the defendant East Providence School Department for race discrimination in a case that resulted in a 2015 settlement in which the district agreed not to retaliate against her and to create an affirmative action officer position.

In her more recent suit, she alleged that after she returned from a leave under the Family and Medical Leave Act, the district’s new leadership team nonetheless retaliated against her with a substandard performance review later that year and by transferring her from her position as an elementary school principal to a newly created position as principal of a soon-to-be-launched pre-kindergarten program.

Lima, who then took another FMLA leave before resigning, asserted that those actions, which she claimed were motivated by her previous lawsuit, by her FMLA leaves, and by her race, created a hostile environment that amounted to a constructive discharge.

But Magistrate Judge Patricia A. Sullivan disagreed, finding that the plaintiff failed to show the district’s proffered non-discriminatory reasons for its actions were a pretext for discrimination.

“Plaintiff has presented nothing more than the undisputed fact that a person less qualified than Plaintiff was chosen to launch the Pre-K program after Plaintiff resigned. This is not even enough to suggest that reasonable people could differ on the appropriateness of [the superintendent’s] selection of Plaintiff for the Pre-K principal,” Sullivan wrote, granting summary judgment to the defendants.

“[I]n any event, evidence that the employer could have made a wiser choice is not enough to establish pretext,” Sullivan continued. “Similarly, Plaintiff points to nothing to establish that the content of her substandard review was based on race or retaliation.”

Kathleen M. Daniels, Marc DeSisto and Kathleen A. Hilton, of DeSisto Law in Providence, Rhode Island, represented the defendants. Sonja L. Deyoe of Providence was counsel for the plaintiff. Neither party’s attorneys could be reached for comment prior to deadline.

The 28-page decision is Lima v. City of East Providence, et al.

Constructive discharge?

The plaintiff was a principal in East Providence, Rhode Island, from August 2000 until August 2016.

In November 2014, she sued the city, its district and its then-superintendent, Kim Mercer, for discrimination and retaliation. The plaintiff alleged that in denying her promotions, the district failed to comply with a 1994 reconciliation agreement — apparently stemming from a charge she had filed with the Rhode Island Commission for Human Rights — that it not retaliate against her, that it appoint an affirmative action officer, and that it maintain an affirmative action committee to monitor its affirmative action plan.

She also claimed the district discriminated against her by giving her a substandard 2012-2013 evaluation and by placing a higher percentage of children with disabilities at her school than any other school in the district.

The plaintiff and the district settled the 2014 case in November 2015. Among other things, the district agreed to create and fund an affirmative action position and not to retaliate against her for bringing the suit.

While the 2014 case was pending, the plaintiff took FMLA leave, apparently because anxiety caused by the case prevented her from working full time. She resumed full-time work as principal of Whiteknact Elementary School in January 2016.

When the plaintiff was on leave, the district hired defendant Kathryn Crowley as the new superintendent; Sandra Forand as assistant superintendent; and Celeste Bowler, an African-American woman who had served four years as the affirmative action officer in a Massachusetts school district, as second assistant superintendent.

Initially, the plaintiff and Crowley apparently had a collegial relationship, though the plaintiff apparently was disturbed when Crowley asked her why she objected to Elmer Pina, the city’s affirmative action officer, also serving as the district’s officer.

The plaintiff pointed out that it was part of the settlement that the district have its own officer. Soon afterward, Bowler was given that role in addition to her existing role. Lima apparently viewed the district’s failure to hire a dedicated affirmative action officer as a breach of the 2015 settlement and as retaliation.

Lima and Crowley’s relationship also apparently became tense when the superintendent denied her request for a rug and wall divider for a special needs classroom, citing her feeling that dividers were a detriment to supervision but inviting Lima to provide a rationale for the rug, which the superintendent described as expensive. The plaintiff apparently did not follow up.

The plaintiff further claimed that her school was assigned a disproportionate number of students for the 2015-2016 school year, which the district disputed, pointing out that the higher percentage of disabled students at that school was a longstanding issue.

That year, the Rhode Island Department of Education was pushing public schools to offer Pre-K instruction and the district applied for a grant to create such a program.      Bowler was in charge of preparing the grant application, in which she used, with Crowley’s knowledge, Lima’s credentials as an experienced elementary school principal with Pre-K certification. In supporting Bowler’s decision to include that in the application, Crowley relied on a conversation she had with Lima in which the plaintiff said she wanted to expand her experience and professional development.

On April 25, 2016, Lima learned that Crowley and Bowler had chosen her as founding principal for the new Pre-K program. They told her she was chosen because she was the only qualified educator in the district.

The plaintiff declined the position, apparently viewing it as a demotion. The district did not accept her refusal and on May 7, 2016, she was told she was being transferred involuntarily to the position.

Meanwhile, on May 11, 2016, Forand, who was Lima’s evaluator, had a “mid-year” meeting with her. During the conference, Lima provided information that convinced Forand to change at least one of her scores, but the plaintiff believed the timing of the meeting was retaliatory.

On June 20, 2016, the plaintiff received a final evaluation, which stated that she was in need of improvement. The evaluation process entitled Lima to have a conference with Forand about the evaluation, but she apparently did not schedule one.

The next day Lima went out on FMLA leave, again due to anxiety, and on Aug. 2, 2016, submitted a letter of resignation. She subsequently relocated to Florida, where she claims she could not apply for principal jobs because of her evaluation.

Ultimately, the district assigned a less experienced person to serve as founding Pre-K principal.

In April 2017, the plaintiff sued the district and Crowley in U.S. District Court, alleging that, motivated by the 2014 case, her FMLA leaves and her race, the defendants retaliated against her with the negative evaluation and alleged demotion, creating a hostile environment resulting in her constructive discharge.

She also asserted that the alleged retaliation and appointment of Bowler as affirmative action officer breached the 2015 settlement.

The defendants moved for summary judgment.

Unmet burden

In arguing for summary judgment, the defendants asserted that the plaintiff’s review was conducted according to Rhode Island Department of Education’s mandatory rubric; that all principals had mid-year meetings around the same time as the plaintiff; and that unlike other principals, the plaintiff did not schedule an end-of-the-year conference about the review before it was submitted to the state.

Additionally, the defendants stated that the Pre-K position did not constitute a negative employment action because the district considered it an important initiative, because Lima had the requisite certification and experience for the job, and because she had requested an opportunity to expand her experience and professional development, which Crowley viewed as aligned with the Pre-K program.

“Based on this evidence, I find that Defendants have more than satisfied their obligation to proffer a legitimate non-discriminatory reason for each of these potential adverse actions,” Sullivan said.

Meanwhile, Sullivan found that the plaintiff did not meet her burden of presenting evidence that the proffered reasons were a pretext for discrimination.

“Thus, Plaintiff has failed to sustain her burden of ‘elucidat[ing] specific facts which would enable a jury to find that the reason given [for either or both of Defendants’ actions] is not only a sham, but a sham intended to cover up the employer’s real motive,’” the judge said, quoting the 1st U.S. Circuit Court of Appeals’ 1991 decision in Mesnick v. Gen. Elec. Co.

Regarding the plaintiff’s claim that the department violated the settlement by naming Bowler affirmative action officer in addition to her existing duties, Sullivan noted that the district was obligated to create the “position” of affirmative action officer with duties “similar” to the position for the city.

“That is what it did. There is no breach,” Sullivan concluded. “I recommend that judgment enter in favor of Defendants.”

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