Opinion
CAUSE NO. IP 02-0772-C-B/S
January 16, 2004
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This employment discrimination case is brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Plaintiff Albert Cole alleges that his former employer, Defendant Greater Clark County Schools, discriminated against him on the basis of race by failing to promote him and by tolerating or condoning workplace harassment based on race so severe and pervasive as to constitute a hosfile work environment. The case comes before the court on Defendant's Motion for Summary Judgment. For the reasons explicated below, we GRANT Defendant's motion as to all claims.
Factual Background
Plaintiff, Albert Cole ("Cole"), is a fifty-two year old African-American male. Compl. ¶ 6; Cole Dep. p. 6. From July 1999 through February 2002, Cole worked for Defendant Greater Clark County Schools ("School Corporation"), a public school corporation in Clark County, Indiana, as the principal of River Valley Middle School. Compl. ¶ 2. During all times relevant to this litigation, Dr. David M. Pulliam ("Supt. Pulliam") was the superintendent of the School Corporation, and Dr. Joseph Wayne ("Dr. Wayne") was the Assistant Superintendent for Instruction. Cole Dep. Ex. 1(A), p. 2.
Prior to serving as River Valley Middle School principal, Cole held the following educational positions:
• Principal, Crosby Middle School, Louisville, Kentucky (July 1995 — July 1999).
• Acting Principal, Crosby Middle School, Louisville, Kentucky (November 1994 — June 1995).
• Assistant Principal, Crosby Middle School, Louisville, Kentucky (July 1990 — November 1994).
• Assistant Principal, Fairdale Technical Center, Louisville, Kentucky (July 1987 — June 1990).
• Teacher, Mill Creek Vocational School, Louisville, Kentucky (August 1981 — June 1987).
• Teacher of Math and Algebra, Western Middle School, Louisville, Kentucky (August 1972 — June 1981).
The School Board chose Cole to be River Valley Middle School principal from a pool of eleven applicants, all of whom had responded to the School Corporation's job posting. Of those eleven applicants, four were selected as finalists; Cole was the only African-American finalist. "Based on [Cole's] job qualifications and specifically his experience as a middle school principal, on July 13, 1999, at [Supt. Pulliam's] recommendation the School Board hired Mr. Cole to serve as the Principal of River Valley Middle School." Pulliam Aff. ¶ 3. As a middle school principal, Cole reported directly to Dr. Wayne, and consequently, it was Dr. Wayne's responsibility to evaluate Cole's performance. Cole Dep. pp. 51-52; Cole Dep. Ex. 1(A)(5).
Cole's first year at River Valley Middle School, 1999-2000, was very successful. Prior to his arrival, River Valley Middle School was known for its problems: the teachers were not "team players," and the learning environment was so undisciplined as to cause some parents to question their children's safety. Cole Dep. pp. 37-39. Dr. Wayne credited Cole with raising the "poor morale" of the teachers and administrators at the school as well as creating "a positive climate at River Valley Middle School, one that is contagious, and one that was greatly needed." Cole Dep. Ex. 1(A)(7).
Such success was not without problems, however. As a means of instituting student discipline, Cole implemented a dress code, one stricter than that required by the School Board, without the knowledge of the School Corporation. Cole Dep. Ex. 1(A)(7). Parents complained, and the dress code was subsequently relaxed. On August 21, 2000, Supt. Pulliam sent Cole a memorandum reminding him to "enforce the standards enacted by the Board and refrain from imposing more stringent requirements than those established by the Board." Pulliam Aff. Ex. 2.
The management philosophy and structure of school corporations in Indiana differ from those in Kentucky; these differences required some adjustments on Cole's part. Cole Dep. pp. 19-21. In Indiana, "it is the custom of the [School Corporation'[s] central office staff to work closely with all building principals during the first several years of their employment to ensure that they understand and are complying with all federal, state and local laws along with all relevant school corporation policies." Pulliam Aff. ¶ 4. To enforce its centralized policies, the School Corporation published a `Voluminous policy manual," which set out procedures for everything from dealing with the general public to purchasing school supplies. A copy of the policy manual was located in each school building. All employees were required to comply with the terms and conditions of these policies. Id. ¶ 5. Cole dubbed such centralized control "micro-management." Cole Dep. p. 20. Cole's previous experience as a principal had been in Kentucky where, in contrast to Indiana, a more site-based management structure places the principal in charge of his or her building and does not require him or her to report every personnel or financial decision to the central office.Id. pp. 20-21.
As Cole entered into his second year at River Valley Middle School, 2000-2001, he continued to struggle with the oversight of the School Corporation's central office. In his evaluation of Cole, Dr. Wayne observed:
Mr. Cole continues to be a "presence" at River Valley Middle School. Mr. Cole clearly has a vision as to how he would like River Valley to be, but in trying to attain that vision he has had to learn to work within the confines of the administrative philosophy in Indiana, which differs significantly from that in Kentucky. Mr. Cole had to be reminded on several occasions during the 2001-2002 school year that there are procedures and protocols that must be followed especially if those are outlined by the Superintendent, the Board and/or his immediate supervisors.
Cole Dep. Ex. 1(A)(9). According to Dr. Wayne, Cole's violations of School Corporation policy included: dismissing teachers before the end of the regularly scheduled teacher work day, failing to see that the cafeteria manager was put on an "Improvement Plan" before seeking to relieve her of her responsibilities at the school, exceeding his allotment of time and making an inappropriate request for funds at the March meeting of the School Board, and failing to maintain professional decorum when talking to parents about critical issues facing their children. Id.
Cole filed a response to Dr. Wayne's evaluation of him in which he stated that he had "no problems in following procedures and protocols," and that he found "no equity in Dr. Wayne's procedures, protocols and with [sic] his micro-management styles of leadership." Cole Dep. Ex. 1(A)(10). In reference to his handling of the cafeteria manager situation, Cole stated that Dr. Wayne had "separate employment standards for white employees and black employees." With regard to the parents who complained of Cole's terseness and unprofessionalism, Cole explained: "This is another situation where the Assistant Superintendent doesn't understand the African American Culture as it relates to voice communication. . . . This is another situation where the Assistant Superintendent doesn't support the local school principal. I have learned that in dealing with some white parents, teachers and with our Assistant Superintendent of Instruction that they are always right in their opinions and knowledge of a situation while blacks are wrong." Id.
In Cole's deposition, however, when questioned about the disintegration of his relationship with Dr. Wayne, he did not blame it on race, but on Dr. Wayne's unfairness.
A:. . . [Dr. Wayne] doesn't play fair. He writes the rules as he goes. There's a different standard rule [sic] with Dr. Joe Wayne with every employee, whether you're black or white.
Q: He just treats everybody differently and arbitrarily?
A: Not fair by employment practice.
Cole Dep. pp. 75-76.
In July 2001, following Cole's second year as principal of River Valley Middle School, Cole applied for the position of principal of Jeffersonville High School to begin in the 2001-2002 school year. Pl's Ex. 1. Jeffersonville High School, another school under the ambit of the School Corporation, is one of the largest high schools in the metropolitan area; it has an enrollment of approximately 1,700 students and 189 employees. Pulliam Aff. ¶ 6. Despite Cole's problems with Dr. Wayne, he continued to feel that other School Corporation officials, specifically Supt. Pulliam, were "Very supportive" of him. Cole Dep. p. 72.
The School Corporation followed the same procedure to fill the principal position at Jeffersonville High School as it did to fill the principal position at River Valley Middle School. Again, eleven candidates responded to the School Corporation's job posting; four, including Cole, were selected for interviews with a committee of school personnel. Pulliam Aff. ¶ 7. This committee consisted of seven School Corporation administrators and one School Board member. Six committee members were male; two were female. One member of the interview team was African-American. Cole Dep. p. 138; Def.'s Br. in Support of Mot. for Summ. J. at 10.
At the conclusion of the initial interviews, the committee recommended two candidates to Supt. Pulliam. Ranked in order of preference, they were: (1) William Amerson ("Amerson"), and (2) Albert Cole. Pulliam Aff. ¶ 8. Per School Corporation policy, prior to filling a vacant position, Supt. Pulliam was allowed to interview candidates in addition to those recommended by the committee. He interviewed one additional candidate, a principal at another Indiana high school, and then made his final recommendation to the School Board. Id. ¶ 9.
Regarding his decision-making process, Supt. Pulliam stated:
In making my recommendation to the Board[,] the most significant factor for me that differentiated Mr. Amerson from Mr. Cole was the fact that Mr. Amerson had worked for nine (9) years as an assistant principal at Floyd Central High School and for one (1) year as interim principal at the same school. Floyd Central High School is part of the New Albany/Floyd County, Indiana School Corporation, immediately adjacent to Clark County. Before that Mr. Amerson had taught high school in Indiana for four (4) years[,] and language arts and social studies at an Indiana middle school for seventeen (17) years. Because Floyd Central's student population and staff are similar in size and make-up to that of Jeffersonville High School[,] I felt his experience was particularly relevant. Mr. Cole's related experience, in contrast, was limited in Kentucky to a brief stint as an assistant principal in a high school vocational program and in Indiana to two years as a middle school principal, something that had already caused problems for Greater Clark.
Pulliam Aff. ¶ 10. The School Board accepted Supt. Pulliam's recommendation and hired Amerson for the position of Jeffersonville High School Principal to begin in the 2001-2002 school year.
Cole's third year at River Valley Middle School, 2001-2002, was fraught with difficulty. First, he had a series of confrontations with Jennifer Susan Jordan ("Jordan"), a school counselor and also the building representative for the Greater Clark Education Association ("GCEA"). Cole Dep. pp. 86-88; Cole Dep. Ex. 3, p. 1. On September 20, 2001, Jordan failed to inform Cole of a student who had attempted suicide. The following day, Cole met with Jordan to discuss her handling of the situation. He recommended that Jordan be placed on the "Assistance Program" and perhaps even reassigned to another location. According to Cole, Jordan was not receptive to his recommendations: "She left my office and went down the hallway to another counselor's office and started yelling and screaming that she was going to let everybody know just what a mean and evil person that I am." Id. On September 24, 2001, Jordan met with other union officials, including Charles King ("King"), president of GCEA and also a teacher at River Valley Middle School, and Joyce Wiseman ("Wiseman"), district representative of the Indiana State Teachers Association ("ISTA"), to discuss her problems with Cole. Cole Dep. Ex. 3, p. 2. Cole did not know about this meeting and was concerned for reasons of safety that people were in the building without his knowledge. Id.
Wiseman called Dr. Wayne with concerns, which Dr. Wayne subsequently shared with Cole. Id. Among the problems with Cole cited by Jordan were that he eavesdropped on teachers' conversations by standing outside classrooms where they were gathered, that he threw chairs, and that he couldn't control his temper and was thus bullying and intimidating. Cole Dep. Ex. 3, p. 2. When Dr. Wayne called Cole to talk about the incident, Cole was dismayed that the discussion focused not on Cole's belief that Jordan had poor decision-making skills, but on Jordan's concern that Cole was "being a bully and intimidating." Id. pp. 1-2; Cole Dep. p. 95. He felt that Jordan was retaliating against him for reprimanding her. Cole Dep. p. 86.
On September 27, 2001, GCEA President King wrote to Cole directing him to refrain from harassing Jordan. Pulliam Aff. Ex. 3. In addition, the union sought and received permission from Dr. Wayne to meet with its members at River Valley Middle School after school on September 28, 2001, a time when Cole would be out of the building. Cole Dep. Ex. 3 p. 3; Cole Dep. p. 99. At that meeting, the GCEA and the ISTA submitted, with Dr. Wayne's knowledge, a survey captioned "Greater Clark County School Corporation Teacher Evaluation of Principal," to which almost all of the teachers responded. Cole Dep. pp. 98-99; Cole Dep. Ex. 5.
As a consequence of the concerns expressed at the September 28, 2001 meeting, ISTA representative Wiseman wrote Cole that "[i]t has been brought to my attention on numerous occasions and by a multitude of sources over the last month that your style of management is to be intimidating, unprofessional, rude, harassing, bullying, etc. This is especially true of your behavior and actions toward female staff members." Pulliam Aff. Ex. 4. On October 8, 2001, Cole met with Supt. Pulliam, Dr. Wayne, Sandy Lewis, School Corporation General Counsel, and Dr. James Becker, Retired Assistant Superintendent of Support Services to discuss how to respond to Wiseman's letter, a letter the type of which had not, to anyone's knowledge, been received by any other principal in the School Corporation. Cole stated that "[t]his is a very strong indication that Race is a factor." Cole Dep. Ex. 3. p. 4.
On October 10, 2001, Cole met with Supt. Pulliam and Dr. Wayne to discuss Cole's belief that the School Corporation was not supporting him in his dealings with his staff, specifically the cafeteria manager and Jordan. In addition, Cole mentioned a "lack of willingness to schedule [an] interview for [the position of] principal at Jeffersonville High School" as one of his grievances, although the record demonstrates that he had, in fact, been interviewed as a finalist for the Jeffersonville High School principal position. He stated, "Even though I dress in a suit and tie[,] Black Males are still discriminated against and described as bully[ing], intimidating, [and] harassing individuals." Cole Dep. Ex. 3 p. 4. Although Supt. Pulliam asked what would be necessary to make Cole happy in his position as principal of River Valley Middle School, Cole informed him that Cole would be seeking legal counsel. Id.
On October 11, 2001, Supt. Pulliam and Cole received a memorandum from GCEA President King to "All Certified Staff' advising staff members not to meet with Cole one-on-one until further notice, threatening to file an unfair labor practice for unilateral changes Cole made to the sign-out procedure, notifying the staff of a grievance he had already filed complaining of Cole's failure to post extra-duty assignments, and asking the staff not to volunteer for anything over and above the duties for which they were being directly compensated. King closed by saying, "With your cooperation, we will continue this effort until ALL items are brought to discussion and resolved without fear of reprisal or intimidation." Pulliam Aff. Ex. 5. In an October 15, 2001 e-mail to Cole, Supt. Pulliam noted King's attempts to "blow smoke" and declared his support of and intent to work with Cole to resolve these matters. Pulliam Aff. Ex. 6.
On October 17, 2001, a flurry of paper exchanged hands. First, ISTA representative Wiseman faxed Supt. Pulliam a copy of a complaint made against Cole by Walter Knoop, a teacher at River Valley Middle School. When an established parent conference procedure conflicted with a Cole directive, Cole "exploded," saying "In my school NO one has the right to not [sic] follow my instructions . . ." Pulliam Aff. Ex. 7. Also on October 17, 2001, Wiseman sent Supt. Pulliam a copy of her memorandum to the staff at River Valley Middle School in which she proposed a stafl7union meeting to go over the results of the `Teacher Evaluation of Principal" survey. Id. Ex. 8. Finally, on that same date, Cole and Supt. Pulliam sent Wiseman letters responding to her September 28, 2001 complaint. Cole's reply did not include any reference to his race or the teachers' allegedly adverse reaction to his race, but rather invited Wiseman to meet, in person, "to discuss some of [Cole's] work philosophies and goals for River Valley."Id. Ex. 9. Supt. Pulliam's response expressed "dismay" at Wiseman's use of "personal interjections" and "unsubstantiated allegations" against Cole. In addition, he noted that no one had filed a formal complaint against Cole, even though the School Corporation had made all personnel aware of such procedures at the beginning of the year. In closing, he asked that all future correspondence regarding Cole's management of River Valley Middle School be directed to him in the first instance. Id. Ex. 10. On October 22, 2001, Wiseman responded to the October 17, 2001 letters from Cole and Supt. Pulliam, enclosing the results of the survey and renewing its contention that Cole's behavior as principal was unacceptable. Cole Dep. Ex. 1(G). At Wiseman's request, Supt. Pulliam, Cole, Wiseman, and King scheduled a meeting for November 6, 2001, in which they agreed to attempt to resolve their conflicts with one another. Cole Dep. p. 109.
Meanwhile, on November 1, 2001, Cole filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging, in relevant part:
(2) Throughout [Cole's] employment, [the School Corporation] has subjected him [to] disparate treatment in the terms and conditions of his employment on the basis of race. [The School Corporation's] actions have included[,] but are not limited to[,] subjecting him to a management microscope and failing to support [Cole] in personnel actions such as discipline of employees.
(3) In or about June 2001, [Cole] applied for the position of principal with [the School Corporation] at Jeffersonville High School. Although [Cole] was the most qualified and experienced, [the School Corporation] hired a Causcasian. . . .
(4) The School Corporation's] explanations for its employment decisions relating to [Cole] are pretextual.
Pl.'s Ex. 1. Cole did not, however, file a grievance with the School Corporation under its Non-Discrimination Policy, which is set forth in the School Corporation's Employee Information Brochure. See Cole Dep. Ex. l(A)(2)-(3). On July 22, 1999, Cole had signed an acknowledgment that he had received the Employee Information Brochure and that he would be responsible for reading it. Cole Dep. Ex. 1(A)(4).
The November 6, 2001 meeting got off to a rocky start; ISTA representative Wiseman told Cole that if he continued to bully, harass, and intimidate her teachers, she would be "a bulldog" after him, and that she would "start World War III." Cole Dep. Ex. 7; Cole Dep. pp. 109-110. At Cole's deposition, he testified that at this point he asked that the meeting be adjourned because he viewed references to terms like "bulldog" to be racially discriminatory as they invoke images of slaves being chased by bulldogs. Cole Dep. p. 110. The meeting did not end there, however. Cole's own notes reveal that Wiseman subsequently gave to Supt. Pulliam two Complaints of Harassment/Bullying and/or Intimidation against Cole filed by Jordan and Mary Linda Bentiey, a teacher at River Valley Middle School, pursuant to the School Corporation's anti-harassment policy. Cole Dep. Ex. 6; Pulliam Aff. ¶ 17. Despite its acrimonious start, the meeting ended with some movement toward resolution of the parties' problems with one another. Wiseman promised: (1) to share the union's concerns with Cole first; (2) if no progress were made in resolving the issues, Wiseman would set up a meeting with the complaining teacher and Cole; and (3) to arrange for all certified teachers to receive diversity training. Cole Dep. Ex. 6. Wiseman, who admitted that she had written her September 28, 2001 and October 22, 2001 letters out of anger, said, "I'm not out to get you!" Id. Cole and Wiseman agreed to meet again to discuss further the issues on December 5, 2001. Pulliam Aff. Ex. 11.
On November 16, 2001, Supt. Pulliam again wrote Wiseman, this time to protest the title of the survey, which he believed to misrepresent grossly the involvement of the School Corporation in its preparation and administration. The survey had been neither sanctioned nor prepared by the School Corporation. Pulliam Aff. Ex. 11. Wiseman responded to Supt. Pulliam on December 11, 2001, in a letter in which she noted that although the text of the survey referred only to the ISTA, the cover was misleading. Finally, she stated that she and Cole had had a positive meeting the previous week Although Cole had yet to admit to making any mistakes, "everything seemed to go well." Cole Dep. p. 123-25, Ex. 1(G).
Cole resigned his position as principal of River Valley Middle School on February 19, 2002. Cole Dep. Ex. 1(A)(11). His stated reasons for his resignation conflict. In his July 21, 2003 deposition, Cole stated that he resigned upon the School Corporation's decision not to settle his EEOC charge. He claimed that the pressure and stress caused by his hosfile working environment was too much for his body to handle. Cole Dep. p. 129. In an interview with the Louisville Courier-Journal for an article dated July 19, 2003, however, Cole gave another explanation for his resignation. The article stated that Cole "said he felt called to start a church four or five years ago. But he was working for the Jefferson County [Kentucky] Public Schools at the time and said he promised God he would go into full-time ministry after he retired." Although upon Cole's retirement from Crosby Middle School in 1999, he immediately took over as principal of River Valley Middle School, "he continued to feel God calling him and finally `surrendered to the decision to start the church [the New Progressive Baptist Church]." Cole Dep. Ex. 8. After receiving a Right to Sue Notice from the EEOC on May 6, 2002, Cole filed a Complaint in this court on May 16, 2002, alleging that the School Corporation "discriminated against him on the basis of race by deny [ing] him a promotion to the position of Jeffersonville High School Principal in 2000 and by harassing him with surveys conducted by the Indiana State Teacher's Association, with the authority and imprimatur of the School Corporation," all in violation of Title VII. Cole Dep. Ex. 7; Pl.'s Br. in Resp. to Def.'s Mot. for Summ. J. at 1. The School Corporation moved for summary judgment on all claims on August 14, 2003.
Legal Analysis Summary Judgment Standard
On a motion for summary judgment, the burden rests on the moving party, the School Corporation in this case, to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett. 477 U.S. 317. 325 (1986) After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her."Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994),citing Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Celotex 477 U.S. at 322-24; Andersoa 477 U.S. at 249-52.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge. 24 F.3d at 290. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant. Venters v. City of Delphi., 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920. A plaintiff's self-serving statements, unsupported by specific concrete facts reflected in the record, cannot preclude summary judgment. Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993).
Discrimination on the Basis of Race
Cole contends that the School Corporation discriminated against him on the basis of race by denying him a promotion to the position of principal of Jeffersonville High School, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) et seq., and 42 U.S.C. § 1981. Under Title VII, it is unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Cole may establish a violation of Title VII by presenting direct evidence of discriminatory intent or by proceeding under the indirect burden-shiiting framework of McDonnell Douglas v. Green, 411 U.S. 792 (1973). Johnson v. Cambridge Indus. Inc., 325 F.3d 892, 896 (7th Cir. 2003).
Cole has no direct evidence of discrimination, and therefore, has chosen to follow the indirect McDonnell Douglas approach. Under this approach, a plaintiff bears the burden of establishing, through competent evidence, a prima facie case of employment discrimination. The establishment of a prima facie case creates a rebuttable presumption that the employer's actions, if unexplained, were the result of impermissible factors and shifts the burden of production to the employer to articulate some legitimate, nondisciiminatory reason for its actions. Hong v. Children's Mem'l Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993). If the defendant meets this burden of production, then the plaintiff may rebut defendant's evidence by showing that the employer's reasons are a pretext for discrimination or that the employer's decision was tainted by impermissible, race-based motives. Johnson, 325 F.3d at 897. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
In order to demonstrate a prima facie case of employment discrimination in a failure-to-promote context, the plaintiff must show that: (1) he belongs to a protected class, (2) he applied for and was qualified for the position sought, (3) he was rejected for that position, and (4) the employer granted the promotion to someone outside of the protected class who was not better qualified than the plaintiff. Implicit in the third element, rejection, is the requirement, as in all discrimination actions, that the rejection constitute a "materially adverse employment action." Grayson v. City of Chicago, 317 F.3d 745, 748 (7th Cir. 2003) (internal citations omitted). The School Corporation concedes that Cole, an African-American, belongs to a protected class and that he applied for and was at least minimally qualified for the position of Jeffersonville High School principal. However, the School Corporation contends that Cole has not put forth sufficient evidence to show either a "materially adverse employment action" or that Amerson, the Caucasian candidate it hired in place of Cole, was not, at least arguably, better qualified for the job.
Relevant to the question of whether Cole suffered a materially adverse employment action is the question of whether a move from middle school principal to high school principal is a promotion or a lateral transfer. Cole alleges that such a move is a promotion because: (1) the high school salary scale is higher than the middle school salary scale; (2) the high school calendar is 17 days longer than the middle school calendar; (3) the education environment is more focused on academics and less preoccupied with discipline issues; and (4) the position of high school principal is more prestigious than that of middle school principal. The School Corporation, however, citing the fact that Cole "would have retained the same salary and benefits" as a high school principal that he had as a middle school principal, argues that the move is a lateral transfer. Def.'s Br. p. 19.
To be material, an adverse employment action must be "more than a mere inconvenience or an alteration of job responsibilities." Oestv. Ill. Dep't of Corr., 240 F.3d 605, 612 (7th Cir. 2001) rquoting Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). Amove from one job to another is a promotion if the position sought has a higher salary or greater benefits than the position currently held by the applicant. In addition, a promotion may also occur if, in the position sought, the applicant would assume significantly increased responsibilities or a more distinguished title. See Hilt-Dyson v. City Of Chicago, 282 F.3d 456, 465-66 (7th Cir. 2002).
Summary judgment "is the `put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Johnsoa 325 F.3d at 901(quotingSchact v. Wis. Dep't of Corr., 175 F.3d 497, 504 (7th Cir. 1999)). Cole offers his Statement of Special Damages, filed December 11, 2002, to show that the position of high school principal pays more than that of middle school principal. We may not consider Cole's Statement of Special Damages, however, because it is neither identified by affidavit or otherwise made admissible in evidence. As such, it is inadmissible hearsay and may not be used to create a genuine issue of material fact.Giltv v. Village of Oak Park, 919 F.2d 1247, 1255 n. 13 (7th Cir. 1990) (statements that are neither notarized nor made under the penalty of perjury, and therefore, that do not comply with rule 56(e) of the Federal Rules of Civil Procedure, may be ignored); Martz v. Union Labor Life Ins. Co., 757 F.2d 135, 138 (7th Cir. 1985) (on summary judgment, "the facts must be established through one of the vehicles designed to ensure reliability and veracity-depositions, answers to interrogatories, admissions and affidavits").
Even if we were to consider the Statement of Special Damages, however, it would be insufficient evidence for a reasonable jury to find in Cole's favor on the issue of whether the position of high school principal pays more than that of middle school principal. The Statement purports to demonstrate the difference in salary that Cole would have received as a high school principal as opposed to his "current position." However, the Statement is neither labeled to indicate the nature of Cole's "current position," i.e., whether it is that of middle school principal or pastor, nor substantiated in any way, such as with citations to publically available salary figures. It is not even signed by Cole's counsel.
Cole's statement regarding the length of the high school calendar must be similarly disregarded as he presents no evidence whatsoever in support of this allegation. In addition, Cole's claim that the educational environment of the high school is more desirable than that of the middle school is not evidence of some quantitative or qualitative change in the terms or conditions of his employment, but rather a statement of his subjective preference. See Herrnreiter v. Chicago Housing Auth., 315 F.3d 742, 744-45 (7th Cir. 2002). Finally, Cole has offered no evidence, other than his self-serving conclusion, that the position of high school principal is more prestigious than that of middle school principal. See Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002) (finding that plaintiff could not establish a materially adverse employment action by claiming that a reassignment deprived him of prestige). Therefore, we must conclude that Cole has failed to state a prima facie case of employment discrimination because he has failed to present evidence tending to show that, in being denied the position of Jeffersonville High School principal, he suffered an adverse employment action.
The Seventh Circuit has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that potentially relevant to the summary judgment motion before them.Johnson, 325 F.3d at 898.
Notwithstanding this conclusion, we also find that, given the record as it stands before us, a reasonable jury could conclude that the School Corporation gave the position of Jeffersonville High School principal to an applicant, Amerson, that was at least as qualified as Cole. Cole and Amerson, by virtue of being the two finalists for the high school principal position, were both well-qualified for the job and similarly situated to each other in terms of performance, qualifications, and conduct. Cichon v. Exelon Generation Co., 2003 WL 22169761, *5-6 (N.D. Ill. 2003):; see generally Radue v. Kimberly Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000). Supt. Pulliam, on behalf of the School Corporation, offered the following legitimate, nondiscriminatory reason for hiring Amerson over Cole:
In making my recommendation to the Board[,] the most significant factor for me that differentiated Mr. Amerson from Mr. Cole was the fact that Mr. Amerson had worked for nine (9) years as an assistant principal at Floyd Central High School and for one (1) year as interim principal at the same school. Floyd Central High School is part of the New Albany/Floyd County, Indiana School Corporation, immediately adjacent to Clark County. Before that Mr. Amerson had taught high school in Indiana for four (4) years[,] and language arts and social studies at an Indiana middle school for seventeen (17) years. Because Floyd Central's student population and staff are similar in size and make-up to that of Jeffersonville High School[,] I felt his experience was particularly relevant. Mr. Cole's related experience, in contrast, was limited in Kentucky to a brief stint as an assistant principal in a high school vocational program and in Indiana to two years as a middle school principal, something that had already caused problems for Greater Clark.
Pulliam Aff. ¶ 10.
Cole, in his turn, argues that this stated reason is a pretext for discrimination on the basis of race. Pretext "means a lie, specifically a phony reason for [taking] some action." O'Neal v. City of New Albany. 293 F.3d 998, 1005 (7th Cir. 2002). Our role, therefore, is to examine whether the School Corporation's preferred reason for hiring Amerson over Cole was honest, Brill v. Lante Corp., 119 F.3d 1266, 1273 (7th Cir. 1997), but not to act as a "super-personnel department" and second-guess the School Corporation's business judgment. Millbrook v. IBP. Inc., 280 F.3d 1169, 1181 (7th Cir. 2002) quoting Simms v. Oklahoma ex rel. Dept. of Mental Health and Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir. 1999).
As the basis for his argument of pretext, Cole points to the School Corporation's comment that Cole, in his role as principal of River Valley Middle School, "had already caused problems for Greater Clark." The School Corporation argues that the problems mentioned by Supt. Pulliam refer to Cole's struggles to manage River Valley Middle School within the confines of the School Corporation's centralized administrative philosophy. Cole contends, however, that what the School Corporation, and specifically his supervisor, Dr. Wayne, termed his inability to follow School Corporation-mandated procedures and protocols was actually the School Corporation's way of setting "separate employment standards for white employees and black employees." Cole Dep. Ex. 1(A)(10).
Not only is Cole's contention inconsistent with other testimony Cole gave in his deposition, but it is also unsubstantiated. For example, Cole does not present comparative evidence tending to show either that the School Corporation required efforts of Cole over and above those required of other (Caucasian) principals or that the School Corporation enforced its `Voluminous" policies and procedures more strictly against Cole than against other principals. Cole offers no competent evidence calling into question the veracity of the School Corporation's explanation for hiring Amerson over Cole.
In Cole's deposition, when he was questioned about his problems with Dr. Wayne, Cole did not blame them on race, but on Dr. Wayne's general unfairness.
A:. . . [Dr. Wayne] doesn't play fair. He writes the rules as he goes. There's a different standard rule with Dr. Joe Wayne with every employee, whether you're black or white.
Q: He just treats everybody differently and arbitrarily?
A: Not fair by employment practice.
Cole Dep. pp. 75-76.
The Seventh Circuit has held that where, as here, "an employer's proffered non-discriminatory reason for its employment decision is that it selected the most qualified candidate, evidence of the applicants' competing qualifications does not constitute evidence of pretext `unless those differences are so favorable to the plaintiff that there can be no dispute among reasonable persons of impartial judgment that the plaintiff was clearly better qualified for the position at issue.' In other words, `the plaintiff's credentials would have to be so superior to the credentials of the person selected for the job that `no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.'" Millbrook, 280 F.3d at 1180-81 (internal citations omitted).
Applying the Millbrook standard to the facts at hand, we find that Cole's credentials are not so superior to those of Amerson that there can be no dispute among reasonable persons of impartial judgment that Cole was clearly better qualified for the position of principal of Jeffersonville High School. Amerson had nine years of experience as an assistant principal and one year of experience as an interim principal, all of which were at an Indiana high school similar in "size and make-up" to Jeffersonville High School. Cole, by contrast, had two years of experience as an assistant principal at a vocational high school in Kentucky. Although Cole had administrative experience at the middle school level that Amerson did not have-Cole had worked for two years as a middle school principal in Indiana, four years as a middle school principal in Kentucky, and five years as an assistant or acting middle school principal in Kentucky-the School Corporation did not view this experience to be as relevant as Amerson's experience as a principal at a high school in Indiana very similar in size and personality to Jeffersonville High School.
Without offering an opinion on the wisdom of the School Corporation's reasons for hiring Amerson in place of Cole, we find that they were reasonable. Accordingly, a comparison of the relative qualifications of Amerson and Cole is not, by itself, probative of pretext. Because Cole presents no other evidence of discrimination, his Title VII failure to promote claim is "doomed." Myles v. City of Indianapolis, 213 F. Supp.2d 962, 967-68 (S.D. Ind. 2002) (Barker, J.).
Cole also contends that the School Corporation's actions violated 42 U.S.C. § 1981. "The same standards governing liability under Title VII apply to § 1981 claims." See Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1035 (7th Cir. 1998). As we have concluded that Cole is unable to state a prima facie case of race discrimination or to show that the School Corporation's legitimate, non-discriminatory reason for not hiring Cole is pretextual under Title VII, his § 1981 claim must fail as well. See Bennett v. Roberts. 295 F.3d 687, 697-98 (7th Cir. 2002). Therefore, we GRANT the School Corporation's motion for summary judgment on Cole's failure-to-promote claim.
Hosfile Environment
Title VII and § 1981 protect employees against hosfile environment workplace harassment. Herron v. DaimlerChrysler Corp., 267 F. Supp.2d 941, 958 (S.D. Ind. 2003). To recover on such a claim, an employee must show that: (1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was severe and pervasive so as to alter the conditions of the employee's environment and create a hosfile or abusive working environment; and (4) there is a basis for employer liability. Mason v. Southern Ill. Univ. at Carbondale, 233 F.3d 1036, 1043 (7th Cir. 2000).
Cole alleges that "selective teachers and administrators engaged in a campaign to undercut Cole's authority in a way never before done to a Caucasian principal," and that this campaign constituted unwelcome harassment. Pl.'s Br. p. 6. Cole cites the following incidents in support of his claim: (1) the School Corporation's "management microscope" and the increasingly negative evaluations of Cole's performance by Dr. Wayne; (2) the lack of support shown by the School Corporation, and specifically Dr. Wayne, during Cole's dealings with the cafeteria manager and Jordan, two staff members who created personnel problems for Cole; (3) the failure of the School Corporation, and specifically Dr. Wayne, to notify Cole of union meetings taking place in his building; (4) the numerous complaints of River Valley Middle School staff that Cole was "a bully," "intimidating," unable to control his temper, and unprofessional, which Cole believed expressed their displeasure not with his leadership style, but with the fact that an African-American was in a position of authority; (5) the distribution by the unions, with the School Corporation's knowledge, of a survey designed to evaluate the River Valley Middle School staff's opinion of Cole's job performance, including his management style; and (6) the comments by ISTA representative Wiseman that she would be "a bulldog" after Cole and "start World War III" if he did not stop intimidating her teachers, comments which were made at a meeting attended by School Corporation officials.
The School Corporation argues that the "harassment" claimed by Cole was not based on his race. The issue of whether harassment is "based on race" turns on whether the employee was "exposed to disadvantageous terms or conditions of employment to which members of the other [race were] not exposed." Herron, 267 F. Supp.2d at 958 quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Cole offers insufficient evidence to raise a reasonable inference that any of the actions about which he complains happened to him because of his race. While he is not required to present direct evidence of race discrimination, he must provide some evidentiary basis from which we may infer that the School Corporation's actions were racially motivated. Id.
Cole's blanket categorization of the aggressive adjectives used to describe his management style as racially derogatory stereotypes is legally insufficient evidence of race discrimination. At the summary judgment stage, Cole has the burden of setting forth evidence, not self-serving conclusions. Aguilera v. Village of Hazel Crest, 234 F. Supp.2d 840, 847 (N.D. Ill. 2002) citing Rand v. CF Indus. Inc., 42 F.3d 1139, 1146-47 (7th Cir. 1994). Cole does not point to, for example, a similarly situated Caucasian principal-one who also did not get along with either building staff or his supervising School Corporation official-who was treated more favorably than he was. Comparative evidence, although very helpful, is not required, of course. Herroa, 267 F. Supp.2d at 959 citing Speedy v. Rexnord Corp., 243 F.3d 397, 402 (7th Cir. 2001). Cole, however, nowhere attempts to rebut the School Corporation's assertions that Dr. Wayne, the River Valley Middle School staff, or the union took the actions they did because of Cole's poor leadership and interpersonal skills: his inability to work within the School Corporation's centralized management structure, his "explosive" temper, and his brusque, allegedly unprofessional dealings with staff and parents. See Herron, 267 F. Supp.2d at 958-59; see also Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000) (concluding that plaintiff's alleged harassers used vulgar insults to express their anger at him over work-related conflicts, not over his sex).
In addition, none of these actions, even taken together, rise to the level of discriminatory treatment. Proof of hosfile environment is two-pronged. In order to prevail, a plaintiff must present evidence sufficient to raise a reasonable inference that he subjectively experienced the environment to be abusive; he must also show, objectively, that a reasonable person in his position would have perceived it to be hosfile. Haugerud v. Amery Sch. Dist., 259 F.3d 678, 693 (7th Cir. 2001). Even crediting Cole's deposition testimony that he resigned because of the overwhelming pressure and stress brought on by his working conditions over his statement to the Louisville Courier-Journal that he resigned to enter the ministry, we find that his working conditions were not objectively so severe and pervasive as to effect negatively the terms and conditions of his employment.
To determine whether harassment is actionable, we consider the all the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993); Hamilton v. RDI/Caesars Riverboat Casino LLC., 179 F. Supp.2d 929, 937 (S.D. Ind. 2002) (Barker, J.). Although the complaints against Cole might have distracted him from other aspects of his work, they were not physically threatening, obscene or humiliating, or so frequent and unfounded as to unreasonably interfere with Cole's job responsibilities. We note, too, that Cole was not left alone to deal with the alleged "campaign" to undercut his authority. In his deposition, Cole testified that Supt. Pulliam was "Very supportive" of him throughout his term as principal of River Valley Middle School. Cole Dep. p. 72. The record reflects that, on several occasions (at an October 10, 2001 meeting with Cole and Dr. Wayne, in an October 15, 2001 e-mail to Cole, and in an October 17, 2001 letter to ISTA representative Wiseman responding to her complaints about Cole), Supt. Pulliam reiterated his support for Cole and his intent to work with Cole to resolve the problems before them.
The evidence put forth by Cole does not describe a "hellish" workplace "permeated with discrimination, intimidation, ridicule and insult." Logan v. Kautex Textron N. Am., 259 F.3d 635, 641 (7th Cir. 2001); Harris. 510 U.S. at 21. Rather, Cole has adduced facts demonstrating at most that the School Corporation occasionally made mistakes, such as in failing to alert him of a union meeting to take place in his building, and that the responses of various River Valley Middle School staff members and union leaders to Cole's behavior may have been too quick and emotion-filled. Title VII, however, "does not protect the hypersensitive employee who is not deliberately targeted by the employer from the irritations endemic to the employment relation." Twisdale v. Snow, 325 F.3d 950, 953-54 (7th Cir. 2003).
In addition, Cole has not presented any evidence that he suffered a tangible employment action as a result of the alleged harassment. See Twisdale v. Snow. 325 F.3d 950, 953 (7th Cir. 2003) ("Title VII does not create a remedy against harassment as such; the harassment must-this is explicit in the statute-amount to discrimination `with respect to [the employee's] compensation, terms, conditions, or privileges of employment.' 42 U.S.C. § 2000e-2(a)(1)."). As discussed above, Cole did not put forth sufficient evidence to show that his failure to be named principal of Jeffersonville High School constituted a "materially adverse employment action." Absent such a finding of material harm (a failure to promote, a failure to get a raise, a demotion, or a discharge), unfair reprimands or negative performance reviews do not result in actionable discrimination. Sweeney v. West, 149 F.3d 550, 555-56 (7th Cir. 1998).
Cole alludes to the possibility that his resignation was a constructive discharge, "which occurs when an employee's discriminatory working conditions become so intolerable that a reasonable person in her position would be compelled to resign." Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997). However, this claim must fail because our finding that Cole's working conditions were not objectively hosfile precludes a finding that Cole's working conditions were so intolerable that a reasonable person in Cole's position would be compelled to resign. Finally, we note that even if Cole had established a claim of constructive discharge, the Seventh Circuit has yet to determine whether a constructive discharge qualifies as a tangible employment action under Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).Mosher v. Dollar Tree Stores. Inc., 240 F.3d 662, 666-67 (7th Cir. 2001).
Having found that Cole has not come forward with evidence sufficient to satisfy the legal requirements of his case, namely that he was harassed based on his race and that the harassment was severe or pervasive so as to alter the conditions of his work environment, we conclude that no actionable harassment took place for which to hold the School Corporation liable under Title VII or § 1981. Accordingly, we GRANT the School Corporation's motion for summary judgment on Cole's claim of racial harassment.
The School Corporation strenuously contends that it is not responsible for the actions of the union representatives. As well, the School Corporation argues in the alternative that, if we were to find that Cole had established a claim of racial harassment, then the affirmative defense outlined in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), would apply because Cole never invoked the School Corporation's official harassment complaint procedure before quitting. As we conclude that no actionable harassment took place, however, we do not reach these arguments.
Conclusion
For the reasons set forth in detail above, we find that Cole has failed to offer evidence from which a reasonable jury could conclude that: (1) the School Corporation's decision to hire Amerson instead of Cole for the position of Jeffersonville High School principal discriminated against Cole on the basis of his race, and (2) the "campaign" to undermine Cole's authority rose to the level of actionable racial harassment.
Therefore, we GRANT the School Corporation's Motion for Summary Judgment on all claims.