A federal judge from the District of Rhode Island has denied a school district’s bid to dismiss the claim of high school coaching candidate, who claimed the district and several individual defendants discriminated against her on the basis of her gender when they did not hire her. The court reasoned that there was enough circumstantial evidence of discrimination that the sufficiency of the facts was better left to a jury, instead of a judge.
The same judge, however, did side with the district and other individual defendants on other aspects of the plaintiff’s employment claim.
In mid-February 2010, the Portsmouth High School (PHS) girls’ lacrosse head coach Jeffrey McGuirl announced he was leaving his position. Sometime before the open position was posted, however, PHS Booster member Michael Borrosh approached PHS Athletic Director Michael Lunney and expressed interest in the vacancy. Lunney informally offered the position to Borrosh, on the spot.
PHS posted the vacancy online on February 21, 2010. The job posting listed “coaching experience” as the only qualification with no additional details of the job requirements.
Plaintiff Judy B. Colman, who was at the time both the head coach for the PHS girls’ tennis team and a volunteer assistant coach for the PHS girls’ lacrosse team, applied. Borrosh, however, was officially hired on February 25 of 2010. The school board approved his hiring on March 9, 2010,
Colman would ultimately sue, alleging that the defendants discriminated against her because she is a woman and that in doing so they ran afoul of the Rhode Island Civil Rights Act (RICRA) and the Rhode Island Fair Employment Practices Act (RIFEPA).
The defendants moved for summary judgment.
In considering the arguments, the court turned to the usual “protocol for proving a disparate treatment9 claim of intentional gender discrimination through indirect evidence … , described by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-02, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). It is a three-part exercise, consisting of a (1) prima facie case presented by the plaintiff, (2) a justification put forth by the defendants, and (3) an assessment of whether the purported justification is legitimate or a pretext for impermissible discrimination. Id.”
In resolving the first element, the court looked at how Colman’s qualifications stacked up against those of Borrosh. It concluded that Colman “has shown sufficient facts, viewed in the light most favorable to her and affording her all reasonable inferences from those facts, that she was qualified for the position and that she was at least as qualified as Borrosh.” Thus, the plaintiff satisfied the burden for establishing a prima facie case of discrimination.
Next, the court considered whether the defendants put “forth a non-discriminatory motivation for their actions. Soto-Feliciano v. Villa Cofresi Hotels, Inc., 779 F.3d 19, 23 (1st Cir. 2015) (citing St. Mwy’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993)).
The defendants offered “a single justification for their decision to hire Borrosh, a reason that explains, in their opinion, both the decision to eschew any competitive hiring process and to put Borrosh in the head coach position. According to the defendants, Borrosh fell into their laps just in time before the start of the season. They maintain that the lacrosse season was upon them, that the girls’ team had no head coach, and that there was insufficient time to consider any other applicants. The court finds that the defendants have, at least minimally, met their burden of production at this second phase of the burden-shifting paradigm.”
The court continued: “Finally, using the McDonnell Douglas rubric, Colman must now show that the defendants’ justification was a mere pretext disguising a discriminatory motive. Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003) … A plaintiff will usually demonstrate pretext by showing that the employer’s stated reason for the adverse employment action either (1) has no basis in fact, (2) was not the actual reason, or (3) is insufficient to explain the employer’s action. White, 533 F.3d at 392-93.
“Judged against their own evidence and assessing all material facts in the record in the light most favorable to Colman, the defendants’ rationale does not support Borrosh’s hiring. The girls’ lacrosse season was due to commence sometime after March 11, 2010. In fact, the hiring was not formally accomplished until the school board gave its approval on March 9, 2010. Thus, there were approximately 19 days between the time the vacancy occurred and the time it was formally filled. A jury could reasonably determine that during that period there was ample time to post the position and receive applications — as evidenced by the fact that the defendants did post the position and did receive at least two applications. In fact, Lunney acknowledged that an entire hiring process can be accomplished in a week’s time, and exactly one week elapsed between (the old coach) announcing his resignation on February 18, 2010 and Borrosh being offered the job on February 25, 2010. Therefore, a jury could find that the defendants’ claim that they were over the proverbial barrel does not hold water when measured against the other evidence in the record.”
The court noted that it is important for a jury to decide cases of this ilk.
“It is clear to the court that its ruling on the defendants’ motion is guided by the answer to the question of who should decide this dispute, a judge or a jury. ‘In cases involving women plaintiffs where legal arguments are frequently novel and innovative, where subtle issues of credibility, inferences, and close legal questions may be involved, where issues concerning the ‘genuineness’ or ‘materiality’ of facts are frequently intertwined with law, a single district judge may be a less preferable decision maker than a jury. Juries are likely to be far more diverse and bring a broader range of perspectives to bear on the problem.’ Elizabeth M. Schneider, The Dangers of Summary Judgment: Gender and Federal Civil Litigation, 59 Rutgers L. Rev. 705, 713 (2007).
Judy B. Colman, et al. v. David P. Faucher, et al., D.R.I.; C.A. No. 12-681-M-PAS, 2015 U.S. Dist. LEXIS 121663; 9/11/15
Attorneys of Record: (for plaintiff) Chip Muller, LEAD ATTORNEY, Muller Law, LLC, Providence, RI. (for defendant) Marc DeSisto, LEAD ATTORNEY, DeSisto Law, Providence, RI.
