A federal judge has granted summary judgment to a school district in a case, where it was sued for racial discrimination by a job candidate, who claimed he was discriminated against on the basis of his race.
Plaintiff Jordan Washington claimed that the Hemphill Independent School District (HISD) discriminated against him in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq; 42 U.S.C. § 1981; and 42 U.S.C. § 1983 when it failed “to place him in the position of coach.”
The position in question was that of coach/director of student conduct. That position was posted on the Texas High School Coaching website in May 2007, but without the director of student conduct component. Washington testified in a deposition that he saw the coaching position posting but did not apply for it because “he was not interested in coaching. He had previously been employed as a coach at HISD for one year, but was relieved of his coaching duties by the Athletic Director.”
The court quickly zeroed in on the flaw in Washington’s case, that he “cannot make out a prima facie case of racial discrimination (with regard to the coaching position) because he did not apply for (the position).”
This meant that Washington failed to demonstrate all four elements required to establish a prima facie case of discrimination in a failure to promote case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). Those elements are: (1) he is a member of the protected class; (2) he sought and was qualified for the position; (3) he was rejected for the position; and (4) the position was given to someone outside the protected class.
While Washington satisfied elements one, three and four, he did not “demonstrate that he applied for positions for which he was qualified.” McDonnell-Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; Fields v. Hallsville Ind. Sch. Dist., 906 F.2d 1017, 1021 (5th Cir. 1990).
It “is undisputed that the coach position was posted; that Mr. Washington saw it; and that he displayed no interest in it. Failing to indicate any interest whatsoever in an opening, despite full awareness of its existence, is the antithesis of actually applying for a position. See Kolpakchi v. Principi, 113 Fed. App’x 633, 637-38 (5th Cir. 2004) (unpublished).
“Mr. Washington does not suggest that he failed to apply because it would have been futile to do so, nor does he offer any evidence of a ‘known and consistently enforced policy of discrimination’ that such a theory would require. Shackelford v. DeLoitte & Touche, LLP, 190 F.3d 398, 406 (5th Cir. 1999) (failure to apply for a position does not bar a discrimination claim if Plaintiff can demonstrate that applying would have been a futile gesture, which usually requires a showing that Plaintiff was deterred by a known and consistently enforced policy of discrimination). Because Mr. Washington simply cannot expect HISD to read his mind and somehow discern that ‘no’ really means “yes,” he cannot demonstrate this element of his prima facie case.”
Even if he had applied, the court concluded that Washington “cannot demonstrate that HISD’s legitimate, non-discriminatory reasons for failing to select him, namely that the candidates selected had superior qualifications, were pretextual.”
Jordan Washington v. Hemphill Independent School District; E.D. Texas; CASE NO. 9:08-CV-103, 2009 U.S. Dist. LEXIS 22123; 3/19/09
Attorneys of record: (for plaintiff) Curtis Bradley Stuckey, LEAD ATTORNEY, Stuckey Garrigan & Castetter, Nacogdoches, TX. (for defendant) Kelli Hamm Karczewski, LEAD ATTORNEY, Feldman & Rogers – Nacogdoches, Nacogdoches, TX.
