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Drewrey v. Portsmouth City School Board

United States District Court, E.D. Virginia, Norfolk Division

March 21, 2018




         In this 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).

         After 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.


         Russell 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.

         The 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).[1]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).

         In 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 judgment.

         A. The Portsmouth City Public Schools Division's Promotional Process.

         The 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).

         B. Drewrey's Qualifications and Performance.

         Drewrey 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).

         In 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. 51-6).

         Soon 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.

         C. Drewrey's Failure to Be Selected for Promotion.

         Drewrey 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. 51-7).

         Scott 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. ΒΆ 7. These negative and unenthusiastic comments ...

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