Retaliation Claim by Athletic Director, Sparked by School Board Member’s Comments About Her Breasts, Survives Motion to Dismiss

May 21, 2021

A federal judge from the District of Colorado has denied a school district’s motion for summary judgment in a case where it was sued by a former athletic director (AD), who claimed she was a victim of retaliation – for reporting the offensive remarks of a school board member – when the district did not renew her contract as AD. 

In so ruling, the district judge concluded that there were not enough facts to dismiss the claim of plaintiff Karee Klassen.

Klassen was initially hired by the School District in 1994 as a social studies teacher. In 2008, she was hired as the AD, which included a supplement to her teaching salary.

Klassen generally received good reviews from the district for her work as a teacher and AD. However, as the AD, Klassen made a scheduling mistake in the spring of 2016, resulting in the cancellation of the annual parent night.

On June 4, 2016, the school district hosted a golf tournament as a fundraiser. Along with other school district employees, Klassen volunteered to help. She was stationed at various holes to distribute alcoholic beverages to tournament participants. At approximately 10:30 a.m., four golfers approached the hole where Klassen was stationed and yelled, “Show me your tits.” One of the golfers was John Price, the board president, according to the complaint. Later in the day, Klassen was at a different hole with a female colleague, Courtney Garner, and when the same group of golfers pulled up to that hole, Price loudly repeated the same crude directive to Klassen and Garner. Another female colleague, board member Candice Reed, joined Klassen and Garner. Reed confirmed that the group had “been saying that all day.”

Nine days after the tournament, the board renewed Klassen’s teaching contract. Soon thereafter, Klassen verbally reported Price’s inappropriate behavior to the superintendent. Over the course of the next few months, each member of the board was informed of the complaint. On April 27, 2017, the board voted against retaining Klassen as AD.

Klassen filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on August 16, 2017. On June 1, 2018, the EEOC issued a Notice of Right to Sue, leading to the instant lawsuit.

The court began its analysis be reviewing Title VII of the Civil Rights Act of 1964 (Title VII). “Under 42 U.S.C. § 2000e-3(a), it is unlawful for an employer to retaliate against an employee because she has opposed any employment practice made unlawful by Title VII. To prevail on a Title VII retaliation claim, a plaintiff must establish that retaliatory motives were involved in the adverse employment decision. Fye v. Oklahoma Corp. Comm’n, 516 F.3d 1217, 1224-25 (10th Cir. 2008). Where there is no direct evidence of retaliation, a plaintiff may rely on the McDonnell Douglas burden-shifting framework to support her claim. See Bekkem v. Wilkie, 915 F.3d 1258, 1267 (10th Cir. 2019). Under the framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), a plaintiff must carry the initial burden of establishing a prima facie case of retaliation. If the plaintiff is able to make that showing, the burden shifts to the employer to articulate a “legitimate, nondiscriminatory reason” for its employment action. Id. at 804. And if the employer provides such a reason, the burden shifts back to the plaintiff to demonstrate that the employer’s justification is pretextual. Id.

“For Klassen to carry her initial burden and make out a prima facie case of retaliation, she must show that (1) she engaged in protected opposition to discrimination, (2) a reasonable employee would have found the challenged action materially adverse, and (3) a causal connection exists between the protected activity and the materially adverse action,” wrote the court, citing Tabor v. Hilti, 703 F.3d 1206, 1219 (10th Cir. 2003). “The school district does not dispute that Klassen has established the first two elements, so I limit my analysis to the element of causation.”

The court continued: “’To establish a causal connection, [Klassen] must present evidence of circumstances that justify an inference of retaliatory motive.’ Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014). A causal connection may be inferred by protected conduct that is closely followed by retaliatory conduct. Id. The shorter the delay, the more likely the temporal proximity will support a showing of causation. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (finding a three-month delay too substantial to independently establish causation). When close temporal proximity is lacking, additional evidence of causation must be presented. O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001).

“Klassen’s protected activities are the two complaints she made to Superintendent Schott: First, the complaint made in the summer of 2016 regarding Price’s harassing comment; and second, the October 2016 complaint regarding her compensation as Director of Transportation.  The materially adverse action by the school district is its April 27, 2017 decision not to renew Klassen’s positions as Dean of Students, and Athletic and Transportation Director. Temporal proximity alone cannot independently support an inference of causation because six months passed between the second complaint and the alleged retaliation. See Bekkem, 915 F.3d at 1271 (confirming additional evidence of causation is required where a gap of three months or longer has occurred).

“Klassen’s argument that the School District availed itself of the first possible opportunity to retaliate has some merit. The rationale of the temporal-proximity doctrine is grounded in the observation that an employer is most likely to retaliate when influenced by anger and resentment. Conroy v. Vilsack, 707 F.3d 1163, 1182 (10th Cir. 2013). A juror’s ability to draw a causal inference between an employee’s protected activity and an employer’s adverse action will diminish as the inflamed ‘embers of anger or resentment . . . cool.’ Id. The fading of such negative emotions may, however, be affected by delays in the School District’s hiring calendar. The Tenth Circuit has acknowledged that exceptions exist. See Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1217 (10th Cir. 2003). In Wells, a retaliatory inference was established despite a five-month delay because ‘it did not make sense’ to retaliate sooner. Id. Given the restrictions of the school year and the Board’s meeting calendar, it may not have made sense to retaliate against Klassen before April 27, 2017. Whether it ‘made sense’ is a question for the jury.”

Karee Klassen v. Deer Trail Sch. Dist. 26J; D. Colo.; Civil Action No. 18-cv-02004-JLK; 12/31/21

Attorneys of Record: (for plaintiff) Charles F. Kaiser, Colorado Education Association, Denver, CO. (for defendant) Elizabeth Spellmire Francis, Michael W. Schreiner, Caplan & Earnest LLC, Boulder, CO.

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