Taylor v. Cherry Hill Bd Ed , 85 F. App'x 836 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
1-13-2004
Taylor v. Cherry Hill Bd Ed
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3738
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 02-3738
__________
WAYNE T. TAYLOR,
Appellant
v.
CHERRY HILL BOARD OF EDUCATION; JACK MCGEE;
LAWYER CHAPMAN; JAMES COUNTRYMAN;
IRA KOZLOFF; AND THOMAS REDMAN
__________
On Appeal from the United States
District Court for the District of New Jersey
(D.C. Civil Action No. 01-CV-01049)
District Judge: Honorable Joel A. Pisano
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
December 12, 2003
___________
Before: AMBRO, FUENTES, and GARTH, Circuit Judges
(Opinion Filed: January 13, 2004)
__________
OPINION
__________
Garth, Circuit Judge:
Wayne Taylor sued the Cherry Hill Board of Education (the “Board”)
and several of its administrators alleging various forms of racial discrimination
and retaliation in violation of federal and state law. The District Court entered
summary judgment in favor of the Board and its administrators. Taylor
appeals. We will affirm.
I.
The Board oversees public schools in Cherry Hill, New Jersey, includ-
ing Cherry Hill High School East (“CH East”), Cherry Hill High School West
(“CH West”), and Barton Elementary School. In 1972, the Board hired
Taylor, an African-American, as a janitor. In 1992, Taylor applied for an
opening in the night foreman position, but the Board hired instead a Caucasian
whom Taylor felt was less experienced. Believing the Board had discrimi-
nated against him because of his race, Taylor filed charges with New Jersey’s
Division of Civil Rights. Without acknowledging any liability, the Board
settled the charges and awarded Taylor the night shift foreman position at CH
West.
-1-
In 1998, the position of night shift foreman was eliminated at both CH
East and CH West when the Cherry Hill school system privatized its janitorial
services. It just so happened that around the same time the position of Assis-
tant Operational Supervisor opened up at both schools. The night shift
foreman at CH East, Thomas Houck, a Caucasian, was promoted on an interim
basis to Assistant Operational Supervisor at CH East. On the Board’s recom-
mendation, Taylor transferred laterally to the head custodian position at Barton
Elementary School.
In early August 1998, the Board posted a written announcement seeking
applicants to permanently fill the Assistant Operational Supervisor position at
CH West. A total of fifty-one persons applied for the opening, of which six
were selected for interviews. Taylor was among the six interviewees who
appeared before a six-member committee. At least four of the interviewers did
not know at the time that Taylor had previously brought discrimination
charges against the Board.
Following two rounds of interviews, the Board selected William Spoto,
a Caucasian, to fill the opening. Spoto had impressive qualifications. A
college graduate and a member of the American Society of Safety Engineers,
-2-
Spoto had previously managed a thirty-five acre site with a 100,000 square
foot facility containing manufacturing, warehousing, R&D labs, and office
facilities.
In January 1999, Taylor filed racial discrimination charges against the
Board and its administrators. He filed his charges with the Equal Employment
Opportunity Commission (“EEOC”). While those charges were pending,
Spoto, who had been employed for approximately one year as Assistant
Operational Supervisor, resigned to join another school district. The Board
again sought applications for the opening and Taylor again applied. This time
the Board selected Taylor for the position.
Although Taylor was appointed Assistant Operational Supervisor at CH
West, he continued to feel slighted by the Board. He claims it came to his
attention that Houck, who had since been made the permanent Assistant
Operational Supervisor at CH East, was receiving overtime pay and was using
school vehicles for personal use, benefits which had not been extended to
Taylor. When Taylor demanded that he receive the same benefits, the Board
denied his request because he was a salaried employee and vehicles were for
business use only. Although Taylor later learned that the Board had deprived
-3-
Houck of those benefits as well, that was not the effect for which he had
hoped. As he explained at his deposition, his “main purpose [was] not to stop
Tom [Houck], it[ was] to get the same privileges he’s getting.” (Appendix
(“App.”) at 348.)
After obtaining a “right to sue” letter from the EEOC, Taylor filed a
complaint against the Board and several of its administrators in the District
Court. The complaint alleged that the Board and its administrators 1 had
discriminated against Taylor on account of his race in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), Section 1981, 42
U.S.C. § 1981(a), and New Jersey’s Law Against Discrimination, N.J. Stat.
Ann. § 10:5-12. The complaint also alleged that the Board and its administra-
tors had conspired against Taylor in violation of 42 U.S.C. §§ 1985-86.
II.
Following the completion of discovery, the Board and its administrators
moved for summary judgment on all counts. The District Court granted the
motion in its entirety.
1
The administrators are Jack McGee, Lawyer Chapman, James Coun-
tryman, Ira Kozloff, and Thomas Redman.
-4-
The District Court first held that Taylor could not make out a prima
facie case of discrimination for the Board’s failure to promote him to Assistant
Operational Supervisor in 1998 because “all the evidence indicates that Taylor
was not the most qualified individual who was considered for the position,
therefore, he cannot establish the required element of the prima facie case that
the position was awarded to a less qualified candidate.” (App. at 17-18.) The
Court also found that Taylor had not introduced any evidence that his transfer
to Barton Elementary School in 1998 had been on account of race. The
District Court similarly found a lack of evidence supporting Taylor’s disparate
treatment claims because Taylor himself had acknowledged that when he
complained to the Board about Houck’s overtime pay and company vehicle
privileges, the Board “remedied the inequities by providing that no Assistant
Operations Supervisors could drive company vehicles or earn overtime.”
(App. at 20.)
As for the retaliation claim, the District Court determined that Taylor
could not establish a prima facie case because he had not provided any evi-
dence demonstrating a causal link between the charges arising out of the
-5-
failure to promote Taylor to night shift foreman in 1992 and the failure to
promote him to Assistant Operational Supervisor in 1998.
The District Court further held that, even if Taylor could make out a
prima facie case of discrimination, the Board and its administrators were
nevertheless entitled to summary judgment because Taylor had not offered any
evidence demonstrating that the Board’s proffered reason for hiring Spoto
over Taylor, namely, that Spoto was better qualified, was pretextual. The
District Court opined that “[a] different result in this case would have the
unintended result of requiring employers to hire applicants who are members
of a protected class if they meet the minimum job requirements, even if a more
qualified applicant who is not a member of a protected class exists.” (App. at
21.) The District Court similarly found that Taylor had not come forward with
any evidence which showed that the proffered reason for not giving Taylor
overtime and the use of company vehicles (i.e., the school policy did not
permit such benefits for Assistant Operational Supervisors) was pretextual.
Lastly, the District Court held that Taylor had not presented any evidence that
the Board and the administrators had conspired against him in violation of
-6-
42 U.S.C. § 1985 or had failed to prevent such a conspiracy in violation of
42 U.S.C. § 1986.
Accordingly, the District Court entered summary judgment in favor of
the Board and its administrators. Taylor filed a timely appeal. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
III.
On review of a grant of summary judgment, we apply a plenary stan-
dard of review. See Carter v. McGrady, 292 F.3d 152, 157 (3d Cir. 2002). In
doing so, we assess the record using the same summary judgment standard that
guides district courts. See Farrell v. Planters Lifesavers Co., 206 F.3d 271,
278 (3d Cir. 2000). To prevail on a motion for summary judgment, the
moving party must demonstrate “that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). “One of the principal purposes of the summary
judgment rule is to isolate and dispose of factually unsupportable claims or
defenses . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In the
context of discrimination claims, we have explained that conclusory allega-
tions of discrimination, in the absence of particulars, are insufficient to defeat
-7-
summary judgment. See Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir. 1989)
(citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). Applying that
standard here, we conclude that the District Court properly granted summary
judgment in favor of the Board and its administrators.
Taylor argues that the District Court erred when it held that Taylor,
when he was not promoted to Assistant Operational Supervisor in 1998, had to
prove at the prima facie stage that he was more qualified than Spoto. In a
failure to hire or promote case, the plaintiff must establish as part of his prima
facie case that (i) he applied for and (ii) was qualified for an available posi-
tion, (iii) was rejected, and (iv) after he was rejected the position remained
open and the employer continued to seek applications from persons of plain-
tiff’s qualifications.2 See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). The District Court understood the fourth prong to require Taylor
to prove that he was more qualified than Spoto. Taylor argues that he was
only required to prove at the prima facie stage that he had the minimum
qualifications needed for the job.
2
Although the position of Assistant Operational Supervisor did not
remain open after Taylor’s rejection, this variance does not change our analy-
sis. See Bray v. Marriott Hotels, 110 F.3d 986, 990 n.5 (3d Cir. 1997).
-8-
Although there is support in our prior jurisprudence for both views,3 we
need not resolve this dispute today because we agree with the District Court
that, even if Taylor could prove a prima facie case, he failed to offer evidence
suggesting that the Board’s proffered (and non-discriminatory) reason for not
hiring Taylor was pretextual or that it was motivated by racial animus. The
Board and the administrators have come forward with substantial evidence
demonstrating that they did not hire Taylor because, although he met the
minimum qualifications, the pool of applicants included candidates who were
more qualified than Taylor. Each of the certifications from the interviewers
states that the interview committee recommended Spoto for the job because he
was more qualified than Taylor. 4
3
Compare Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509,
523 (3d Cir. 1992) (holding that attorney who claimed she was passed over for
law firm partnership because of her gender need only show at prima facie
stage that “[s]he was sufficiently qualified to be among those persons from
whom a selection . . . would be made” (citation omitted)) with Jewett v. Int’l
Tel. & Tel. Corp., 653 F.2d 89, 91 (3d Cir. 1981) (holding in failure-to-
promote context that plaintiff failed to make out prima facie case because
person who was promoted had “superior qualifications”).
4
The record on appeal includes certifications from five of the six
interviewers. Each of those certifications categorically denies that race played
any role in the hiring process and states that the interview committee recom-
mended Spoto for the job over Taylor because Spoto was better qualified.
(continued...)
-9-
Where, as here, the employer answers the plaintiff’s prima facie case
with a legitimate, non-discriminatory reason for its action, “the plaintiff must
point to some evidence, direct or circumstantial, from which a factfinder could
reasonably either (1) disbelieve the employer’s articulated legitimate reasons;
or (2) believe that an invidious discriminatory reason was more likely than not
a motivating or determinative cause of the employer’s action.” 5 Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994). In order to show pretext, a plaintiff
“must demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons
for its action that a reasonable factfinder could rationally find them ‘unworthy
of credence.’” See id. at 765 (quoting Ezold v. Wolf, Block, Schorr & Solis-
Cohen, 983 F.2d 509, 531 (3d Cir. 1992)).
4
(...continued)
That assertion is corroborated by a final “Personnel Recommendation Form,”
which remarks that Spoto was the “most experienced and knowledgeable
candidate.” (App. at 186.)
5
Taylor points out that the District Court framed the test as requiring
the plaintiff to convince the factfinder that the reason was false and that
discrimination was the real reason. (See App. at 17.) We believe that the
District Court was stating the ultimate burden Taylor must establish at trial.
See St. Mary’s Honor Ctr. v. Hicks, 505 U.S. 502, 515 (1993) (stating that a
Title VII plaintiff must show “both that the [employer’s stated] reason was
false, and that discrimination was the real reason”).
-10-
Taylor emphasizes that he allegedly was told by the outgoing Assistant
Operational Supervisor that Robert Coligan, one of the six interviewers, had
mentioned before the Board began seeking applications that “he did not want
[Taylor] for the position of Assistant Operations Supervisor.” (App. at 301.)
Coligan, who had previously managed the building and ground operations at
CH West, had worked with Taylor for some time prior to the interview.
Coligan described Taylor as a “solid worker,” but felt he lacked leadership
skills -- a quality that Coligan believed was a “key aspect” of the new position.
(App. at 193.) While those statements tend to show that Coligan may have
arrived at Taylor’s interview with opinions about Taylor’s qualifications for
the position of Assistant Operational Supervisor, they do not demonstrate that
Coligan formed those opinions on account of Taylor’s race. See Fuentes, 32
F.3d at 767 (“It would defy common sense for an interviewer to put aside all
his or her personal and/or acquired knowledge of the interviewee and to
proceed as if the interviewee were a stranger, and Title VII does not mandate
so much.”).6
6
We also agree with the District Court that the alleged disparate
treatment between Houck and Taylor does not rebut the Board’s stated reason
for not hiring Taylor. Taylor himself acknowledged that the administrators
(continued...)
-11-
Taylor emphasizes that a factfinder could find racial animus from the
fact that Houck was allowed to temporarily fill the Assistant Operational
Supervisor opening at CH East while a similar request by Taylor was denied
by the Board. According to Taylor’s testimony, however, the Board initially
arranged for Houck and Taylor to become “floating custodians.” (See App. at
292.) Sometime later, the Board through James Countryman asked Taylor if
he was interested in transferring to a permanent opening at Barton Elementary
School. Taylor accepted the Board’s offer to become head custodian at
Barton. We fail to see how this chain of events supports Taylor’s claim of
racial discrimination.
In sum, we do not find that Taylor introduced sufficient evidence for a
reasonable factfinder to disbelieve the Board’s stated reason for hiring Spoto
or to conclude that the Board’s decision was, more likely than not, motivated
by racial animus.
6
(...continued)
stopped paying Houck overtime and discontinued Houck’s vehicle privileges
once it was brought to their attention.
-12-
IV.
Taylor also argues that he established a prima facie case of retaliation,
which required him to show (i) that he engaged in a protected employee
activity; (ii) the Board took an adverse employment action after or contempo-
raneous with his protected activity; and (iii) a causal link existed between his
protected activity and the Board’s adverse action. See Nelson v. Upsala
College, 51 F.3d 383, 386 (3d Cir. 1995). We agree, however, with the
District Court, which found that Taylor failed to come forward with evidence
establishing the causal connection.
We have sometimes found that temporal proximity gave rise to a causal
inference. See, e.g., Jalil, 873 F.2d at 708 (finding causal link where employer
fired plaintiff two days after receiving notice of his EEOC claim). But here
approximately five-and-a-half years passed from the time that Taylor filed his
charges with New Jersey’s Division of Civil Rights to the time the Board
failed to hire Taylor for the Assistant Operational Supervisor position.7 See,
e.g., Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997) (finding
7
It is not clear from the record when the Board was notified about the
charges, but the Division entered a finding of probable cause in January 1996,
more than two-and-a-half years before the Board hired Spoto.
-13-
nineteen months between filing of EEOC charges and adverse action was too
attenuated to create a genuine issue of fact on summary judgment). Taylor
contends that we should look past the long passage of time because the
promotion in 1998 “provided the defendants with their first opportunity to
retaliate against [Taylor].” (Taylor Br. at 30.) We disagree. The Board could
have demoted, harassed, falsely disciplined, or fired Taylor long before 1998.
Lastly, Taylor contends that he introduced enough evidence to survive
summary judgment on his claim under Section 1985, which prohibits conspira-
cies to deprive persons of certain constitutional rights, and his claim under
Section 1986, which imposes liability on persons who have the power to
prevent a Section 1985 conspiracy, but have failed to do so. See 42 U.S.C. §§
1985-86. We conclude that a reasonable factfinder could not, from the
admissible evidence in the record, find that there was a conspiracy among the
defendants to deprive Taylor of his constitutional rights or that they failed to
prevent a third-party conspiracy.
-14-
V.
For the foregoing reasons, we will affirm the judgment of the District
Court.8
TO THE CLERK:
Please file the foregoing opinion.
/s/ Leonard I. Garth
Circuit Judge
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8
The Board asserts that Taylor’s appeal is frivolous and has moved to
sanction Taylor pursuant to Federal Rule of Appellate Procedure 38. We deny
the Board’s motion.