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Yeboah-Kankam v. Prince William County School Board

United States District Court, E.D. Virginia

December 29, 2017



          Leonie M. Brinkema United States District Judge

         Before the Court is defendant Prince William County School Board's ("defendant" or "PWCPS") Motion for Summary Judgment [Dkt. No. 31] to which plaintiff Kwame Yeboah-Kankam ("plaintiff or "Yeboah-Kankam"), proceeding pro se, has filed a response. Based on the written materials, the Court finds that oral argument would not aid the decisional process. For the reasons stated below, defendant's motion will be granted.

         I. BACKGROUND

         The uncontested facts establish that plaintiff, who is an African-American male originally from Ghana, West Africa, was hired as a counselor at Freedom High School ("Freedom") in August 2013. Joint Stipulated Uncontested Facts ("Stip. Facts") ¶ 2 [Dkt. No. 26]. He was hired by Inez Bryant ("Bryant"), Freedom's principal, and Dave Anderson ("Anderson"), Freedom's Director of Counselling. Id. ¶¶ 3, 5. Plaintiff reported directly to Anderson for two years, until Anderson was replaced by Brianna Moore ("Moore") during the 2015-2016 school year. Id. ¶ 7. Plaintiff also reported to Bryant, in her capacity as Freedom's principal, and to Mickey Mulgrew ("Mulgrew"), PWCPS' Associate Superintendent for High Schools. Id. ¶ 8. Bryant and Moore are African-American females, and Anderson, Lowry, and Mulgrew are Caucasian males. Id. ¶¶ 4, 6, 8, 9.

         Plaintiff was hired as a probationary counselor for his first three years at Freedom, pursuant to Virginia Code § 22.1-303, which provides that if an employee's performance evaluation during the probationary period is not satisfactory, the school board "shall not reemploy [that employee]." Id. ¶ 12. During each school year, plaintiff received both a mid-year evaluation and an end-of-year summary evaluation. For his first two years, plaintiff received a "meets standards" rating in each of his evaluation categories, id ¶ 14; however, during plaintiffs second year, problems began to arise as reflected in his January 2015 mid-year evaluation, in which Anderson observed that plaintiffs reluctance to allow students to drop courses "has at times created tension with other staff." Id.; see also Pl.'s Dep., Ex. 6.[1] He was particularly concerned about plaintiffs negative interactions with co-workers, including his sending disrespectful emails and his confrontations with other staff members.

         As a counselor, plaintiff was responsible for advising students whether certain courses, such as Advanced Placement ("AP") classes, were appropriate for them, assigning student class schedules, and changing those schedules in consultation with the students' parents and teachers, as well as considering his own professional judgment. Freedom had an open enrollment policy for AP classes, meaning that if a student passed the previous year's AP exam, he or she was eligible to take the next level AP course. Stip. Facts ¶ 17; Pl.'s Dep. 154:2-155:1

         According to plaintiff, he had an on-going "rift" with Freedom's Social Studies Department, particularly with one teacher, Blake Nicolai ("Nicolai"), regarding his willingness to let students drop classes or change their schedules. See Pl.'s Dep. at 136:8-138:4 [Dkt. No. 32- 2]. Plaintiff believed that the number of schedule change requests from the Social Studies Department were the result of teachers in that department wanting to boost their own evaluations and class scores at the expense of students' education. Pl.'s Dep. 173:6-175:2. He also believed that the teachers in that department were conspiring to have students and parents complain about him when he refused to make schedule changes. See Pl.'s Ex. 4-6 [Dkt. No. 37-1].

         It is uncontested that plaintiff refused to change a number of student schedules on the basis that he did not believe that the proposed reason for the change was sufficient and that such a change would be unfair to other students. The record shows that he explained to Darrin Lowry ("Lowry"), Freedom's assistant principal, that he would not support a change that might be harmful to a student. Id. Ex. 4-16. He offered to refer any requests from the Social Studies Department to Bryant. Id. Plaintiff acknowledged in his deposition that, on at least one occasion, he refused a parent's request to enroll her student in an AP class despite Freedom's open enrollment policy, Pl.'s Dep. 159:2-163:6, and that when he was asked about this refusal, he argued that the parent's request was made only because she was "coached by Ms. Nicolai, " id. He admitted that he could not produce any evidence to support that belief and conceded that it was merely his own "reasonable assumption." Id. 159:2-162:14; 163:7-164:7.

         The record also shows that thirteen separate complaints were filed about plaintiff, the majority concerning plaintiffs interaction with students and the Social Studies Department's staff. See Pl.'s Dep., Ex. 7; Bryant Dep. at 18:14-22. One parent complained that plaintiff had told her that her child was "not good enough" for AP classes, and that plaintiffs tone in emails to colleagues and parents was "aggressive" "unprofessional, " "arrogant, " and "disparaging." See Def.'s Ex. C; Pl.'s Dep. at 211:10-212:19. Plaintiff acknowledged during his deposition that parents and other teachers in the school complained about him not granting schedule changes, but again speculated that these complaints were fabricated. Pl.'s Dep. at 144:9-20.

         In June 2015, Rebekah Schlatter, PWCPS's Supervisor of Secondary Counseling, recommended that Bryant and Anderson meet with plaintiff to discuss the "tone of his emails and professional relationships with staff." See Def.'s Ex. C. Ms. Schlatter advised that if plaintiffs behavior did not improve, the school would need to issue him a Memo of Concern, a Letter of Reprimand and/or a Performance Improvement Plan. Id. She also suggested that if plaintiff "continue[d] to struggle with his professional behavior" he should receive an "approaching or does not meet [standards] in professionalism" at his next mid-year evaluation. Id.

         Although Bryant and Anderson met with plaintiff to discuss the complaints against him, he responded by discounting the complaints, explaining that he believed Nicolai had "got[ten] all the female white teachers in her department... to write these statements" and "make up lies about [plaintiff]." Pl.'s Dep. at 173:6:175:6. He maintained that two teachers in the Social Studies Department told him that they were instructed to "write negative things about" him. Id. at 175:7-14. He believed that these complaints were discriminatory because all of the complaints came from white women:

Q. [I]s it your position that because they were white women.
A. Uh-huh.
Q. Their complaints about you were discriminatory or motivated by discrimination?
A. Oh, yeah, definitely. Of course. That's what happens.

Pl.'s Dep. at 172:11-21. He also reported that at least four students had been asked by Nicolai or another teacher to write statements about any negative interaction they had had with plaintiff. Based on this meeting, Bryant and Anderson recommended that plaintiff have more face to face or phone conversations with colleagues instead of using email to protect plaintiff "against misinterpretation of emails relative to 'tone' and 'intention.'" Pl.'s Dep., Ex. 7; Bryant Dep. At 52:19-53:8.

         Bryant also investigated plaintiffs allegations against Nicolai, speaking with the students he had identified. Def.'s Ex. E. The students agreed that they had been asked by Nicolai or other teachers to write statements documenting negative interactions with plaintiff. Id. For example, one student explained to Bryant that Nicolai and another teacher had asked her to write a letter to the principal stating that "Mr. Yeboah and all of guidance was setting her up to not be able to graduate." Id. Bryant reprimanded Nicolai for acting inappropriately by encouraging teachers and students to complain about plaintiff, and recommended that Nicolai refer to an administrator any student problems related to schedules, a counselor or the guidance department as a whole. See Def.'s Ex. E. Bryant also recommended that Nicolai conduct more face to face or phone conversations to avoid misinterpretation of email "tone, intention and assumption." Id.

         On June 29, 2015, plaintiff emailed Mulgrew and Dr. Walts ("Walts"), PWCPS' Division Superintendent who is a Caucasian male, and other members of the school board to complain about Nicolai and Lowry. Def.'s Ex. F. He accused Lowry and Nicolai of encouraging students and teachers to fabricate complaints about him, and requested that PWCPS investigate any complaints that had been filed to ascertain whether they were true and requested official reprimands be issued against Nicolai and Lowry. Id. Then in July 2015, he submitted a complaint to the Virginia Department of Education ("VDOE"), repeating his complaints and claiming his alleged mistreatment was the result of discrimination. Pl.'s Ex. 5-17; 6-12. The VDOE investigated, but concluded that plaintiff had not exhausted his administrative remedies within the school, and encouraged him to direct his complaints to the PWCPS school board. Id.

         In September 2015, at the beginning of his third probationary year, plaintiff met with Mulgrew and Bryant to discuss his allegations about co-workers, and to address another student schedule change problem. See Pl.'s Dep., Ex. 8. Both parents of one student had requested that their child be moved from a class due to a discipline incident where one student choked another. Id. Plaintiff did not feel that the student's behavior warranted a change, but Anderson, Mulgrew, and Ms. Holland (another former assistant principal) had directed him to make the change. See id. Plaintiff nevertheless refused to make the change, believing it was "illegal." The change was eventually made by Anderson. Id. Mulgrew reminded plaintiff that if he did not follow a directive from an administrator, his conduct could be perceived as insubordination. Id. He emphasized that plaintiff has a right to his opinion about student schedules, but "once [he] receive[s] a directive ... [he] should comply." Pl.'s Dep., Ex. 10.

         Mulgrew also instructed plaintiff that he could not "block" AP course requests if the student met Freedom's criteria for enrollment, but that he was entitled to speak to the parents and student to provide advice. Id. Plaintiff responded that he "had to be able to sleep at night" when he was making decisions for students' futures. He again raised his complaints against Nicolai and Lowry, accusing them of changing student schedules to boost Freedom's test scores and accused Lowry of drinking alcohol at the 2014-2015 prom.[2] He felt his complaints were not being adequately addressed and informed Mulgrew and Bryant that he intended to contact the Virginia Department of Education, and the PWCSB about his concerns.

         On September 15, 2015, Moore, Freedom's new Director of Counselling, met with plaintiff to discuss additional complaints about his interactions with students. She presented two student statements, in which one student complained that she was not comfortable talking with Mr. Yeboah because he made comments about her weight, and the other explained that plaintiff told her that her grades were "awful" and made her feel like she did not "deserve" to have her schedule changed. See Def.'s Ex. 11. Plaintiff did not recall making any statements about a student's weight, but acknowledged that he had made the other statement. Id. At his deposition, he admitted believing that Moore was coaching students to make up these complaints, and that she should be reprimanded for "making up those lies." Pl.'s Dep. at 176:3-177:4.

         Following this meeting, Moore informed plaintiff that she was issuing a Letter of Concern based on the student complaints and a Letter of Reprimand based on two additional incidents, in which plaintiff "directly defied an administrative directive [which] is classified as insubordination." Pl.'s Dep., Ex. 9. Plaintiff responded that Moore should write a second letter of reprimand for insubordination because he would not sign the first letter. Pl.'s Dep., Ex. 9; Stip. Facts ¶ 19.

         The Letter of Concern and Letter of Reprimand were issued on September 29, 2015. Stip. Facts ¶ 20. In the Letter of Concern, Moore advised plaintiff to monitor and improve his interactions with other staff members. Pl.'s Dep., Ex. 11. In the Letter of Reprimand, plaintiff was disciplined for failing to submit a graduation form for a student which "almost placed [the student] at risk for not being able to be designated an August 2016 graduate" and for insubordination for refusing to allow a student to return to a class presentation despite a specific instruction from the administration to do so. Id. Plaintiff was also disciplined for failing to call a parent to discuss a student's schedule despite being given a directive to do so. Id. The letter explained that these failures breached the professionalism standard for PWCPS, constituted insubordination, and warned that if plaintiff failed to address recurring issues with his professionalism or failed to fulfill the responsibilities of his position, Freedom's administration might recommend that his contract not be renewed and that he be dismissed from his position. Id.

         According to plaintiff, the facts in the Letter of Reprimand were based entirely on an assumption by Moore. In a letter to the school board and Mulgrew, plaintiff argued that Moore could not produce any evidence that he did not provide the graduation form for the student and was just "assuming" he did not complete it. Pl.'s Ex. 5-43. With respect to the student plaintiff refused to admit to a class presentation, he argued that the student came back after the class was over, so there was no presentation to which he could return. Id. Finally, he explained that he did try to call the parent as directed, and left a voicemail, which the parent claims not to have received. Id.

         He also argued that other staff members made "sexist and xenophobic" statements against him, claiming that Nicolai told Bryant that plaintiff "does not work well with women" because of his culture and called him an "asshole." Bryant Dep. 48:19-49:1. Bryant testified at her deposition that she told plaintiff that it was possible that she and other staff thought he was arrogant because he is a confident, African-American male. Id. 41:1-42:2.

         There was an additional incident between plaintiff and Mike Nerenberg ("Nerenberg"), another guidance counselor. On December 3, 2015 a transgender student was waiting in the counselling office for his counselor. Def.'s Ex. G. According to a complaint filed by Nerenberg, plaintiff asked that the student produce a pass to show he was properly in the guidance office, and kept referring to the student as "young lady" despite the student identifying as male. Id. After the student failed to produce a pass, plaintiff threatened to have security called to escort the student back to class. Id. At this point, Nerenberg intervened and escorted the student to his office.

         The next day, plaintiff approached Nerenberg in his office and was "emotionally out-of-control, yelling, threatening, trying to intimidate [Nuremburg] and shaking his finger." Id. According to Nerenberg, when he asked plaintiff to leave, plaintiff responded "are you going to make me" Id. At that point, Nerenberg left his own office with plaintiff following him, stating "I thought so" and "You have been warned." Id.

         Nerenberg filed a complaint with PWCPS' Office of Risk Management, and emailed Moore and Bryant that he was concerned that plaintiff "may do something rash, hostile, and vindictive, and that he may put me or other coworkers in the office in a position where we will have to defend ourselves." Stip. Facts ¶ 23; Def.'s Ex. I. Based on this complaint, Mulgrew temporarily reassigned plaintiff to another school while PWCPS investigated Nerenberg's complaint. Pl.'s Dep. 86:10-16. Def.'s Ex. J.

         On December 9, 2015, plaintiff filed a complaint against Nerenberg, Moore, Bryant, Lowry, Nicolai, and Mulgrew with the Office of Risk Management. Pl.'s Dep., Ex. 13. His complaint alleged that:

• Nerenberg's complaint was false, that Nerenberg is rarely in his office, that various teachers drank on Nerenberg's boat during prom and that ...

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