United States District Court, E.D. Virginia, Norfolk Division
RUSSELL A. DREWREY, Plaintiff,
PORTSMOUTH CITY SCHOOL BOARD, Defendant.
OPINION AND FINAL ORDER
DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE
employment discrimination action brought by Russell A.
Drewrey against his employer, the Portsmouth City School
Board, the Board has moved for summary judgment (ECF No. 50).
The Board argues the evidence is insufficient to permit a
reasonable juror to conclude Drewrey was discriminated
against by not promoting him because of his age or that he
was retaliated against for complaining of discriminatory
acts. See Def.'s Mem. Supp. Mot. Summ. J.
("Def.'s Mem.") (ECF No. 51). The Board's
motion is supported by Drewrey's own deposition and
numerous exhibits. Drewrey filed a 9-page brief opposing
summary judgment, attaching three exhibits, including a
"stipulation" of facts in lieu of sworn testimony.
(ECF No. 58).
reviewing the evidence the parties have submitted in contest
of the summary judgment motion, the court concludes that
there is no direct evidence of discrimination and Drewrey has
produced no evidence creating a dispute of fact as to whether
the city's nondiscriminatory reason for not promoting him
was pretextual. His failure to promote claim therefore cannot
survive summary judgment. Additionally, the court lacks
subject matter jurisdiction over Drewrey's retaliation
claim, and, even if there was jurisdiction, Drewrey has
failed to identify evidence supporting the conclusion that he
was retaliated against for engaging in legally protected
activity. Accordingly, as explained in greater detail below,
the court will GRANT the City's Motion for Summary
Judgment (ECF No. 50) and enter judgment in its favor on the
failure to promote claim and DISMISS the retaliation claim
for want of jurisdiction.
FACTUAL AND PROCEDURAL HISTORY
Drewrey is 61 years old and thus, over the age of 40. He has
been and remains employed as an educator with the Portsmouth
City Public Schools Division. He has worked as a teacher,
primarily in Portsmouth, since 1996.
allegedly discriminatory acts giving rise to Drewrey's
present claims happened between 2015 and 2016. Am. Compl.
(ECF No. 24); Drewrey Spreadsheet (ECF No.
51-3).The court summarizes those events below and
the relevant events preceding them, relying on the evidence
in the record of the summary judgment motion from both
parties-but viewing any dispute of fact in the light most
favorable to Drewrey as the non-moving party. See
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322-24 (1986).
August 2016, Drewrey filed a claim against the School Board
with the Equal Employment Opportunity Commission
("EEOC"), accusing the Board of violating the Age
Discrimination in Employment Act, 29 U.S.C. § 623, by
denying him promotions because of his age and by retaliating
against him because he asked not to work under a specific
school principal. EEOC Charge (ECF No. 51-2). After the EEOC
dismissed his charges, Drewrey filed this action against his
employer. Compl. (ECF No. 1), Am. Compl. (ECF No. 24). In
this litigation, he argues he was passed over for promotion
numerous times because of his age. Am. Compl. ¶¶
21, 23 (ECF No. 24). He also argues he was stripped of a job
title-assigned with a temporary appointment-because he asked
for more compensation; he urges the court to hold that this
was improper retaliation for opposing age discrimination
against him. Am. Compl. ¶¶ 15, 29 (ECF No. 24).
Discovery is closed, and the Board now moves for summary
The Portsmouth City Public Schools Division's
Division's promotion process for the administrative
positions Drewrey sought is straightforward. When a position
becomes available, a notice for the opening is posted on a
website. Applicants can then submit an electronic application
for the position. The Division's Human Resources
Department then reviews the applications received and
determines which of the applicants will receive interviews. A
screening panel interviews the selected applicants and
recommends a candidate to the Division Superintendent, who
makes her own recommendation to the School Board. The School
Board has final authority for selecting applicants for an
open administrative position. Ziegler Aff. ¶ 3 (ECF No.
51-6); accord Drewrey Dep. at 38-41 (ECF No. 51-1).
Drewrey's Qualifications and Performance.
has a bachelor's degree in social studies education and a
master's degree in educational leadership. Drewrey Dep.
at 6-7 (ECF No. 51-1); Am. Compl. at ¶ 16 (ECF No. 24).
He has worked for the Division since 1996, except for a short
period when he worked in information technology for another
employer. Drewrey Dep. at 7-10 (ECF No. 51-1).
March 2013, while assigned to I.C. Norcom High School as a
social studies teacher, Drewrey's supervisor, Principal
Dr. Rosalynn Sanderlin, wrote Drewrey a letter of reprimand.
The reprimand described an incident in which Drewrey yelled
at, swore at, and threatened a fellow teacher. The reprimand
also criticized him for insubordination because he did not
comply with Dr. Sanderlin's directions to report to her
office after the incident to explain his behavior. Letter
from Rosalynn Sanderlin to Portsmouth City Schools Human
Resources Director ("Sanderlin Letter") (Mar. 14,
2013) (ECF No. 51-4). Drewrey concedes that he received the
reprimand, that this was unprofessional behavior, that he did
curse at his colleague, and that he refused Dr.
Sanderlin's direct instruction to report to her after the
matter. Drewrey Dep. at 69-76 (ECF No. 51-1). He disagrees
that he actually threatened his colleague, though he admits
the colleague and another witness both reported to Dr.
Sanderlin that he threatened her. Id. at 72. The
Sanderlin Letter was entered into Drewrey's personnel
file with the Division. See Ziegler Aff.¶4(ECF No.
after this incident, Drewrey was transferred within the
Division to William E. Waters Middle School. Drewrey Dep. at
16-17 (ECF No 51-1). At Waters, his supervisor was Dr. Eric
Fischer. Between Drewrey's transfer to Waters in March
2013 and the end of the school year in June 2013, Dr. Fischer
paid especially close attention Drewrey's performance.
Drewrey testified Dr. Fischer observed his performance 19
times during that period. See Drewrey Dep. at 88-91 (ECF No.
51-1). In Drewrey's performance evaluation at the end of
the school year, Dr. Fischer strongly criticized
Drewrey's performance as a teacher. Out of seven
performance competencies, Fischer gave Drewrey the lowest
score possible on all but two. Fischer gave Drewrey's
overall performance an "Unacceptable" rating. He
commented, "All too often, students sleep in class
and/or disrupt the learning environment. Improvement is
needed in planning instructional delivery, assessment and
evaluation, and classroom management." 2013 Evaluation
(ECF No. 51-5). Drewrey offered his opinion during his
deposition that the evaluation was unfair because he was not
scheduled for evaluation and "because Dr. Fischer never
officially gave me notice that he was evaluating [him]."
Drewrey Dep. at 89 (ECF No. 51- 1). He does concede the
evaluation made him look like a very poor teacher. Drewrey
Dep. at 89 (ECF No. 51-1). Drewrey knew the evaluation would
be included in his personnel file but did not remember
whether he included a response to the evaluation because he
"didn't take this evaluation too seriously
anyway." Drewrey Dep. at 95-96 (ECF No. 51-1). Although
Drewrey disagrees with Dr. Fischer's opinions, he does
not contest that this evaluation was in his personnel file
for review by the human resources staff during promotion
processes prior to his submitting applications for the
positions underlying his claims.
Drewrey's Failure to Be Selected for Promotion.
has identified 18 positions for which he applied prior to
initiating litigation. Drewrey Spreadsheet (ECF No. 51-3).
The Division's records also reflect Drewrey applied for
other positions in addition to those he identified. See Board
Spreadsheet (ECF No. 51-7). All of these applications arose
after Drewrey's reprimand by Dr. Sanderlin and his poor
evaluation at Waters Middle School. See Sanderlin Letter (ECF
No. 51-4) (Mar. 4, 2013); 2013 Evaluation (ECF No. 51-5)
(June 5, 2013). The Human Resources Department never offered
Drewrey an interview for any of the positions. See Drewrey
Dep. at 123-24 (ECF No. 51-1); Drewrey Spreadsheet (ECF No.
51-3). According to the parties' "stipulations,
" Drewrey applied for 16 internal openings, and 14 of
them were filled by younger applicants. The stipulations do
not identify the age or qualifications of any specific
applicant hired for these positions. Stipulations, ¶ 3
(ECF No. 53-1). The Board's evidence, however,
establishes the birthdate of younger applicants who were
hired for certain positions. Board Spreadsheet (ECF No.
Ziegler became the Human Resources Director for the Division
in June 2015, a position he continues in to the present. In
that position, Ziegler is closely involved in the
Division's promotion processes, including the positions
for which Drewrey applied. Ziegler remembers reviewing the
first application for promotion Drewrey submitted after
Ziegler assumed his position with the Division and also
reviewing Drewrey's personnel file in consideration of
that application. Because of the reprimand from Dr. Sanderlin
in March 2013 alone, Ziegler "did determine [Drewrey]
was not qualified for any promotion in the Portsmouth City
School system." Ziegler Aff, ¶4 (ECF No. 51-6).
Ziegler also concluded from the evaluation from Dr. Fischer
that Drewrey was "a very poor teacher."
Id. ¶ 6. He also contacted references Drewrey
listed on the application and remembered that "some of
the references selected by Mr. Drewrey rated him as fair.
[Ziegler] saw that as a red flag." Id. ¶
7. These negative and unenthusiastic comments ...