Opinion
Civil No. 02-1219 ADM/AJB
April 8, 2004
Laurie A. Vasichek, Esq., Equal Employment Opportunity Commission, Minneapolis, MN, for Plaintiff
Patricia A. Maloney, Esq., Ratwick, Roszak Maloney, P.A., Minneapolis, MN, for Defendant
Michael J. Waldspurger, Esq., Ratwick, Roszak Maloney, P.A., Minneapolis, MN, for Defendant
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter came before the undersigned United States District Judge on January 14, 2004, for oral argument on the Motion for Summary Judgment [Docket No. 23] of Defendant La Crescent-Hokah Public Schools ("Defendant" or "the District"). Plaintiff Equal Employment Opportunity Commission ("EEOC" or "Plaintiff") alleges Defendant forced Carol Jones ("Jones"), a sixty-two year old kindergarten teacher, into retirement because of her age, in violation of the Age Discrimination in Employment Act ("ADEA"). For the reasons set forth below, Defendant's Motion is granted.
II. BACKGROUND
Defendant is a small school district comprised of the towns of La Crescent and Hokah, Minnesota. Jones began teaching kindergarten in the Defendant School District in 1967 and remained in that position for thirty-three years until she retired in June 2000. She is licensed by the state to teach kindergarten through sixth grades. Between 1996 and 1998 Kenneth Runberg ("Runberg") was the superintendent of the District and Gary Murray ("Murray") was the elementary school principal. On various occasions during this time period Murray told Runberg that parents had conveyed dissatisfaction with the kindergarten program and the methods of instruction, though Murray does not recall the specific complaints. Murray Dep. at 195; Runberg Dep. at 19-20. At the end of the 1997-1998 school year Murray met with Jones and the other kindergarten teacher, Sharon Partington ("Partington") and relayed to them his concerns regarding a need for evolution in the delivery of the curriculum. Partington Dep. at 9; Jones Dep. at 84, 90, 95-96. Murray additionally informed Jones and Partington that the school would be transferring one of them to a first grade teaching position. Partington Dep. at 7-9; Jones Dep. at 84-85, 90. Murray cited as the reasons for the reassignment declining enrollment and a push for change in the kindergarten program because Jones and Partington had "worked together too long, too many years, and [were] too much the same, [that their] teaching [was] too much the same." Partington Dep. at 9, 13. According to Partington and Jones, he described their teaching methods as out-of-date and told them that the school should have "new faces," "new dogs" to lead the pack. Jones Dep. at 78, 82, 90, 92; Partington Dep. at 65-67. Plaintiff alleges at this or another meeting Murray commented, "you teachers are all a bunch of dinosaurs," and stated that the program needed "new blood." Jones Dep. at 79-80, 82; Wilhelm Dep. at 41-42. Partington was subsequently transferred and taught first grade for the 1998-1999 and 1999-2000 academic years before retiring. Jones continued teaching kindergarten during these years.
When Runberg resigned as superintendent in 1998 he left a list of issues for his successor to address. Constance Hayes ("Hayes"), the individual hired to replace Runberg, testified that the list included a small paragraph on parental concerns about the quality of kindergarten education and concern about Jones, Hayes Dep. at 36-37, 72. Hayes states that shortly after beginning her work as superintendent, a seven-year member of the school board, Ben Rudert, informed her that concerns had been expressed regarding the stagnant nature of the kindergarten instruction, and that parents had requested that their children not be placed in Jones' class. Hayes Dep. at 78-79; Rudert Dep. at 12, 14, 24, 26. Hayes testified that she later received many more direct and indirect complaints about Jones and her use of outdated teaching methods and materials. Specifically, in the Spring of 1999, Hayes discussed the issue with Hollie Briggs, a teacher with the District for 29 years, who expressed concern that the kindergarten program was in need of a more flexible, "developmentally appropriate curriculum." Briggs Aff. ¶ 7. Briggs also told Hayes she was concerned about declining enrollment in the District, particularly with the opening of a new Montessori charter school in La Crescent in 1999, and that the putative problems with the kindergarten classes may encourage parents to look for other educational options. Id. During the 1999-2000 school year, Briggs had several discussions with Brian Wood ("Wood"), a parent and school board member, regarding their shared concerns about the poor reputation of the kindergarten program, including Briggs' having heard multiple parental complaints regarding Jones' use of the same activities and materials throughout the years. Id. ¶ 6.
A year later, in the Spring of 2000, Hayes spoke with several parents and board members, who conveyed a negative reputation of the kindergarten program generally, as well as relating that Jones had been extremely intoxicated at a public community function in 1998 or 1999. Hayes Dep. at 63-64, 69-70, 71-72, 77, 241-42. In April 2000, Hayes had a conversation with Loralee Pechacek, a parent whose child was entering kindergarten the following school year. Pechacek Aff. ¶¶ 2, 4. Pechacek related to Hayes that she had heard from other parents that Jones' lessons were outdated, and that Jones' instruction methods lacked individualization to student needs. Id. ¶¶ 3, 4; Hayes Dep. at 30-31. Pechacek informed Hayes she did not want her child placed in Jones' class. Pechacek Aff. ¶ 4. Around this time, another parent, Scott Yeiter, also requested Hayes not assign his daughter to Jones' classroom, based on his reported observation that Jones was so inebriated at a local festival that she had urinated in her pants. Yeiter Aff. ¶ 9. Hayes additionally had several conversations with board member Mark White ("White") who commented that he, too, had heard of parental concern regarding the outdated instruction and lack of individualized attention in the District's kindergarten program. Hayes Dep. at 69, 70; White Dep. at 8-9, 10.
Jones denies this incident and maintains that Defendant's reference to her drinking is mere pretext. Defendant, citing multiple parents and board members who claim to have heard of Jones' excess use of alcohol, counters that it was legitimately concerned about this public perception and its effect on kindergarten enrollment. Hayes Dep. at 63-64; see Briggs Aff. ¶¶ 8, 10; Snuggerud Dep. at 8-9, 49-50. The District also relies on the fact that the report of Jones staggering and urinating in her pants came from Yeiter, a police officer "trained and experienced in identifying evidence of intoxication." Def.'s Mem. in Supp. at 6.
When Hayes discussed this issue with Wood, he stated he had personally heard criticism from parents about the quality of the kindergarten program. Hayes Dep. at 77; see also Briggs Aff. ¶ 6. He relayed to Hayes his own experience that when he sought a recommendation from other parents for a kindergarten teacher he did not receive any positive reports on Jones, Hayes Dep. at 77. According to Defendant, Wood was another parent who had requested the District not place his child in Jones' class. Wood Dep. at 37-39. Hayes also spoke with board members Lisa Docken and Kay Snuggerud during this time, who each concurred there was a history of parental concern about lack of change in kindergarten materials and instruction. Hayes Dep. at 64-65, 71; Docken Dep. at 7, 9-10, 24, 32-33; Snuggerud Dep. at 12. Thus, all four board members with whom Hayes discussed the kindergarten program had heard concerns regrading stale methods of curriculum delivery and the lack of attention to varied educational abilities and levels.
Defendant did not submit a copy of Wood's deposition, and this citation is therefore based on its memorandum.
Hayes was concerned about a decline in Defendant's enrollment, particularly because of the opening of the new charter school. Hayes Dep. at 64-65, 105. In or around April of 2000 she began to consider transferring Jones out of the primary grades, based on her belief that parents at this stage are most involved in their children's education and most likely to look for alternative schooling if they are dissatisfied with the public school. Id. at 82-84, 105, 123, 140, 267. She felt that the numerous complaints over the years, of which she had recently become aware, evinced a significant problem with the community's perception of the kindergarten program, and that given the enrollment issue, she had to take quick action toward a solution. Id. at 82-83, 85-86, 105, 140-41, 162-63. Hayes testified she believed reassigning Jones outside of the primary grades would mitigate the risk of parents choosing alternative schools. Id. at 75, 83.
Normally, the elementary principal determines new teaching assignments, but because Murray had taken a leave of absence preceding his retirement, Hayes had assumed responsibility for making elementary school teaching placements. Murray had no direct involvement in the decision to transfer Jones, Murray Dep. at 188.
After Partington's transfer in 1998, Defendant did not discuss these issues with Jones and she was not disciplined or placed on a heightened level of supervision. On May 16, 2000, Hayes met with Jones to discuss the possibility of retirement and retirement incentives. Four days later, Hayes contacted Jones to inform her the District would not offer double severance but Jones would still benefit from a decision to retire given the rising costs of insurance under the forthcoming new policy. Jones Dep. at 33-34. Jones testified in deposition that she felt Hayes was pressuring her to retire. Id. at 38. On May 24, 2000, at a meeting of Hayes, Jones, Partington and union representative Sue Wilhelm, Jones represented that she had decided not to retire because of her love of teaching. Hayes then informed Jones for the first time that she was transferring Jones to the vacant fifth grade position because of parental complaints regarding the quality of her teaching methods, as well as two recent requests by parents that their children not be placed in Jones' classroom. Hayes Dep. at 21-23, 24, 27-29; Jones Dep. at 48. Jones replied that she would prefer transfer to the first or second grade openings, as more consistent with her teaching experience, but Hayes affirmed that she believed the fifth grade placement was best. Jones Dep. at 41-43, 53. She then offered Jones paid time to review and prepare the curriculum over the summer.Id. at 131; Hayes Dep. at 44. Wilhelm and Partington testified that their impression at that time was that Hayes was transferring Jones to encourage her to retire. Partington Dep. at 20-34; Wilhelm Dep. at 13-34.
Defendant had three expected vacancies for the 2000-2001 school year: first, second and fifth grades. In early May, Murray sought volunteers for these positions. He received a request for the second grade placement from a third grade teacher whose position was being eliminated and a request for fifth grade from a fourth grade teacher whose job was also being eliminated. Vasichek Decl. Ex. 17.
After this meeting Jones began to contact parents to request their support in keeping her kindergarten position, and a petition was circulated on her behalf. Hayes verbally reprimanded Jones for this action, asserting that she did not have a right to contact and involve community members in matters of District "discipline." Hayes Dep. at 203. On June 23, 2000, Jones submitted a letter of resignation indicating her intent to retire effective June 30, 2000, accompanied by twelve letters from parents written in support of Jones and in protest of the District's decision. Vasichek Decl. Ex. 20. In her letter, Jones expressed the illogic she saw in moving a fourth grade teacher to second grade when the teacher would have preferred the fifth grade placement. This is an apparent reference to Jessie McKinney ("McKinney"), the fourth grade teacher who volunteered for the fifth grade opening assigned to Jones, Jones wrote that she believed it was in the best interests of the children to have a teacher who is teaching the grade she desires and with which she is most familiar. She also noted that she would postpone retirement if Defendant allowed her to retain her kindergarten position.
Retirement by this date entitled Jones to an insurance premium incentive.
Prior to retiring, Jones obtained and partially read the fifth grade textbooks to be used in the coming school year. Jones Dep. at 63, 117-18, 239-40. She attended a reading instruction training program for teachers in the upper elementary grades, and additionally spoke to her friend Partington about Partington's experiences in transferring to first grade.Id. at 28-29, 63, 232. Jones estimated the preparation for teaching fifth grade would require working all summer and each evening.Id. at 54, 63, 146, 222-23, 225. Jones had taught kindergarten for 33 years and felt she was unfamiliar with the interests and educational expectations and needs of fifth grade students. Id. at 58, 63-64. Hayes and McKinney testified the fifth grade curriculum is more detailed and challenging than that of kindergarten.
Hayes Dep. at 227; McKinney Dep. at 20-21. Based on her concern about her ability to teach fifth grade, Jones elected retirement. Jones Dep. at 58, 63-64. Defendant hired two new kindergarten teachers, ages 28 and 24, and filled the second and fifth grade vacancies with the teachers who had originally volunteered for those placements. See supra n. 2.
III. DISCUSSION
Claims of discrimination under the ADEA are analyzed under the familiar burden shifting analysis of McDonnell Douglas Corp. v. Green 411 U.S. 792, 802-05 (1973):see Alien v. City of Pocahontas, 340 F.3d 551, 558 (8th Cir. 2003). Pursuant to this framework, the plaintiff must establish a prima facie case of age discrimination in order to proceed with her case. Upon doing so, a rebuttable presumption of discrimination is created and the burden of production shifts to the defendant to state a legitimate reason for the employment action. The burden then shifts back to the plaintiff to demonstrate the defendant's proffered reason is pretextual and that age played a determinative role in the decision. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000): Keathley v. Ameritech Corp., 187 F.3d 915, 919 (8th Cir. 1999).
To set forth a prima facie case of age discrimination, Plaintiff must establish all of the following are true of Jones: 1) she is a member of a protected class; 2) she was performing her position at a level that met Defendant's legitimate expectations; 3) she suffered an adverse employment action; and 4) she was replaced by a younger individual who is not a member of the protected class. Tadlock v. Powell, 291 F.3d 541, 546 (8th Cir. 2002). Defendant does not challenge elements one, two and four of Plaintiff's case. The focal point of contention between the parties is whether Defendant's involuntary transfer of Jones constitutes an adverse employment action.
Plaintiff argues Defendant's transfer of Jones to fifth grade constitutes an adverse action because it was disciplinary and significantly altered Jones' working conditions. Alternatively, Plaintiff argues Defendant constructively discharged Jones by pressuring and forcing her into retirement. "[A] transfer constitutes an adverse employment action `when the transfer results in a significant change in working conditions or a diminution in the transferred employee's title, salary, or benefits.'" Id. at 546-47 (quoting Fisher v. Pharmacia Upjohn, 225 F.3d 915, 919 (8th Cir. 2000)). Thus, a purely lateral transfer is generally not actionable as an adverse placement.See Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994) (to be considered adverse action, changes in work assignment or duties must cause "materially significant disadvantage" to employee); Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996) ("a transfer that does not involve a demotion in form or substance cannot rise to the level of materially adverse employment action"). Although the EEOC concedes Jones would have maintained the same pay, status, seniority and benefits as a fifth grade teacher, it contends the transfer was nonetheless adverse because of the large burden the increased work load would have placed on Jones, After 33 years developing and instructing kindergarten lessons, Plaintiff asserts, placing Jones in an unfamiliar and admittedly more challenging grade level significantly altered the conditions of her employment.
Several courts have held that the transfer of a teacher to a different grade, school or subject without a concomitant loss of prestige or salary is not adverse employer conduct. See Galabaya v. New York City Bd. of Edu., 202 F.3d 636, 640-42 (2d Cir. 2000) (transfer out of special education not adverse action when plaintiff produced no evidence new position would entail career setback or be less suited to his expertise); Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998) (involuntary move from fourth to second grade at different school where teacher cited only negative consequence as longer commute not actionable because did not amount to "anything beyond a mere inconvenience or alteration of job responsibilities"); Spring v. Sheboygan Area Sch. Dist. 865 F.2d 883, 886 (7th Cir. 1989) (claimed increase in administrative tasks and time of commute did not make reassignment to principalship at different school adverse employment action).
Plaintiff relies on Zotos v. Lindbergh Sch. Dist, 121 F.3d 356 (8th Cir. 1997), for Eighth Circuit authority that a teacher's transfer from a gifted program to a regular classroom was an adverse employment action. Id. at 362. This statement by the court, however, is dicta, as the dispositive issue was Plaintiff's failure to assert a timely claim, and the court's passing references to the transfer as a discrete adverse action was in the context of refuting Plaintiff's continuing violations theory. Id.
However, in other cases, reassignment to a position involving a "radical change" or substantial increase in Plaintiff's work generated sufficient factual questions regarding adverse employment action to survive summary judgment. Rodriquez v. Board of Edu., 620 F.2d 362, 366 (2d Cir. 1980) (transfer of art teacher to program at "elementary level [was] so profoundly different . . . as to render utterly useless her twenty years of experience and study");Delashmutt v. Wis-Pak Plastics, Inc., 990 F. Supp. 689, 700 (N.D. Iowa 1998) (jury issue presented as to "whether essentially doubling a person's workload for more than a brief period imposes more than `mere inconvenience'"). Plaintiff additionally cites Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403 (3d Cir. 1999), in which the Third Circuit found that a teacher's transfer to a "difficult" school, coupled with the loss of the opportunity to teach his preferred subject, was sufficient to satisfy the adverse employment action element of prima facie case analysis. Id. at 412. This conclusion, however, is ultimately rendered dicta by the court's holding affirming summary judgment for the defendant, based on the Plaintiff's extensive disciplinary record and lack of evidence of pretext. Id. at 414. 415.
The EEOC does not dispute that Defendant had the contractual right to transfer Jones within her certification. It contends, however, that the District intentionally assigned her to a significantly different position that would require such a major adjustment in type and amount of work as to overwhelm Jones and induce her to retire. Although Jones did not attempt to teach fifth grade, her belief that doing so would have required a great deal of additional preparation time is corroborated by Partington's experience, as well as the obvious differences between kindergarten and upper-level elementary students and curricula.See Partington Dep. at 32-34. Additionally, Hayes agrees the fifth grade curriculum is more detailed than that of kindergarten and McKinney testified it is more challenging and requires a great deal of preparation. Hayes Dep. at 227; McKinney Dep. at 20-21. However, as other courts have stated, involuntary transfers will often involve more work, and a simple "alteration of job responsibilities" cannot alone render a placement adverse. Williams, 85 F.3d at 274;Harlston, 37 F.3d at 382. The determinative question is whether the increased demands rise to the level of a "materially significant disadvantage." Harlston, 37 F.3d at 382.
Accepting the facts in the light most favorable to Plaintiff, there is a viable question of fact as to whether a transfer that would demand Jones, who had instructed kindergarten for 33 years and never taught an upper-level grade, to spend hours throughout the summer and each evening learning an entirely different curriculum constitutes a "significant change in working conditions." Fisher, 225 F.3d at 919-20;Delashmutt, 990 F. Supp. at 700 ("a jury question is certainly engendered on whether essentially doubling a person's workload for more than a brief period imposes more than `mere inconvenience'"); Jones, 198 F.3d at 412 (deprivation of opportunity to teach preferred subject sufficient for prima facie case). This employment action may reasonably be viewed as a "reassignment with significantly different responsibilities." Burlington Indus, v. Ellerth, 524 U.S. 742, 761 (1998). Unlike the cases referenced by Defendant, Jones has articulated more than a lengthened commute or "personal discomfort" as the adverse effects of her transfer.Sanchez, 164 F.3d at 532; Spring, 865 F.2d at 886. And while it is true that any transferred teacher must learn a new curriculum, a reasonable jury could find the degree of difference and difficulty occasioned in this case by placing a 33-year veteran of the kindergarten program outside the primary grades, sufficient to establish adverse employment action. See Doe v. Dekalb County Sch. Dist. 145 F.3d 1441, 1452-53 (11th Cir. 1998) (objective adversity of employment action is judged in context of particular circumstances of the case).
This conclusion is further bolstered by District's apparent view that the assignment to fifth grade may influence Jones' retirement decision. Doe v. Dekalb County Sch. Dist. 145 F.3d 1441, 1452 n. 21 (11th Cir. 1998) (it is "important that the threshold for what constitutes an adverse employment action not be elevated artificially, because an employer's action, to the extent that it is deemed not to rise to the level of an adverse employment action, is removed completely from any scrutiny for discrimination"); Jones Dep. at 28-29 (stating her surprise at seeing the teacher who requested fifth grade, but was assigned to second grade, at the training program for upper-elementary teaching); Partington Dep. at 20-34; Wilhelm Dep. at 13-34 (impressions of forced retirement).
Because there is a dispute of material fact regarding whether Jones' transfer was an adverse employment action, Plaintiff's less compelling argument that Jones was constructively discharged need not be addressed.
The inquiry then proceeds to the next stages of the McDonnell Douglas analysis, whether Plaintiff has produced sufficient evidence to create a reasonable inference that Defendant's proffered non-discriminatory reason for the transfer, the poor reputation of Jones' instruction and an attendant concern about a decline in enrollment, was a pretext for age discrimination. See Fisher, 225 F.3d at 921 (to avoid summary judgment a plaintiff must "present evidence that: `(1) creates a question of material fact as to whether the defendant's proffered reasons were pretextual and (2) creates a reasonable inference that age was a determinative factor in the adverse employment decision'"); see also Marquez v. Bridgestone/Firestone, Inc., 353 F.3d 1037, 1038 (8th Cir. 2003) (because the plaintiff "offered no direct evidence of discrimination, the district court properly applied the burden-shifting framework of McDonnell Douglas"). Plaintiff asserts the articulated dissatisfaction with the kindergarten program fails as a legitimate motive because Defendant greatly exaggerated the complaints, did not consider their temporal context, and ignored parental support and praise for Jones, Defendant counters that it was responding to a voluminous amount of complaints and acted in an expeditious manner because of enrollment competition with the new charter school. Defendant asserts Jones was assigned to teach fifth grade based on an honest belief in parental discontent with, and a negative public image of, Jones' kindergarten classes, which necessitated an immediate, rather than long-term solution.
The EEOC argues Defendant's selective focus on negative opinions of Jones, while ignoring evidence of parental support for her teaching and character, indicates pretext. It cites Ryther v. KARE 11. 108 F.3d 832 (8th Cir. 1997), for the proposition that disregarding positive evaluations and praise of the employee may establish pretext. The facts of this case are notably different from Ryther, where the defendant relied upon an isolated negative survey as justification for Plaintiff's termination, despite continuing approval and positive evaluation of plaintiff's performance. Id. at 838-39. By contrast, here the District had an accumulated list of parents expressing concern regarding Jones and the kindergarten program, and was not contemporaneously lauding her performance. Hayes testified that prior to making her decision she read the letters of commendation for Jones but felt they were outweighed by what she "perceived to be as many more complaints." Hayes Dep. at 105, 162-64. Plaintiff has offered no evidence that Hayes should have questioned the reliability of the numerous concerns expressed and related by parents and board members in April and May of 2000. See Alien 340 F.3d at 558 n. 6 (defendant need not investigate the accuracy of complaints where there is no reason to believe the complaints are false). Without proof of age discrimination, Hayes' decision to address the enrollment issue engendered by these concerns by transferring Jones to fifth grade, even if not the wisest or most logical choice, represents a valid exercise of administrative discretion. See Hill v. St. Louis University, 123 F.3d 1114, 1120 (8th Cir. 1997) (ADEA "does not prohibit employment decisions based upon poor job performance . . . or even unsound business practice"). The existence of some conflicting opinion does not render the record of complaints invalid or Defendant's reliance on the information pretext. Cf. Sprenger v. S. Fed. Home Loan Bank, 253 F.3d 1106, 1111-12 (record of concern was legitimate justification for denying raise despite recommendation for raise in one evaluation).
Defendant concedes Jones' 1996 evaluation, completed by Murray, evidenced high marks and favorable comments, and indicated no areas requiring improvement. Murray Dep. at 50-62.
However, it argues that the review is too dated for analyzing the 2000 transfer decision and that Murray's statements to Jones, Partington and Hayes in the 1998-99 school year reveal subsequent concerns and criticisms. Hayes testified that she did not consider the 1996 performance evaluation because she felt the parental perception of Jones' instruction and the kindergarten program was already a significant risk to enrollment and that she needed to act quickly to counter this threat.
The EEOC further asserts that the terms used to critique Jones' instruction reflect age prejudice and that Defendant therefore could not properly rely on these "biased preferences of customers." Pl.'s Mem. at 28. Although the adjective "outdated" inherently relates to age, it does not necessary evoke an age-based stereotype. The alleged failure to update and redevelop a curriculum could apply to a teacher of any age, particularly in a field such as education where methods and materials are constantly evolving. See Murray Dep. at 107 (curriculum changes are ongoing). Furthermore, out-of-date instruction was not the lone criticism; Defendant also cites multiple references to a lack of individualization and concern for public perception regarding excess alcohol consumption. Hayes additionally testified that the competition for enrollment from the recently established charter school was a significant factor in her determination, based on her experience that parents of children in the primary grades are most active in seeking educational alternatives if unsatisfied with public education. Hayes Dep. at 82-84, 105, 123, 140, 267. Thus, the descriptions of Jones doing "the same activities and projects . . . year after year" and continuing to teach like "it was the 50s" do not, in their broader context, prove the parental dissatisfaction expressed to the District was based on age bias. Briggs Aff. ¶ 6; Docken Dep. at 24.
Plaintiff next argues that comments by Murray indicate an age-based animus by the District. Defendant replies that Murray's statements "do not pertain to this case" because he had no decision-making authority or influence. Def.'s Mem. in Supp. at 12. It further asserts that generic comments about the need for "fresh faces" or "new blood" are not sufficiently probative of discrimination. It is undisputed that Murray had no direct role in decision to transfer Jones, Commentary or stray remarks demonstrating age animus, even by a non-decision maker, although not sufficient standing alone, constitute circumstantial evidence that may be considered in the discrimination calculus. Yates v. Rexton, Inc., 267 F.3d 793, 801 (8th Cir. 2001); Fisher, 225 F.3d at 922-23. Nonetheless, such comments must permit a reasonable inference of age discrimination. Compare Fisher, 225 F.3d at 922-23 (remarks about "getting rid of the old guys" and bringing in "some of the younger people," when considered with Plaintiff's history of high performance ratings, constituted sufficient circumstantial evidence of discrimination) with Hill, 123 F.3d at 1119 (obtuse comment of desire to bring in "fresh blood" insufficient).
The alleged statements, the need for "new blood" and "new dogs" and describing the teachers as "dinosaurs," were made at least two years prior to the transfer decision and as such, lack a temporal nexus. Jones Dep. at 78-79, 81-84; cf. Feltmann v. Sieben 108 F.3d 970, 977 (8th Cir. 1997) (six-month period between comment and termination too great to show casual connection in retaliation claim). Furthermore, because Murray was not part of the decision to transfer Jones and there is no claim by Plaintiff that Murray conveyed these impressions to Runberg or Hayes, their probative value is minimal. Murray Dep. at 188;see Feltmann, 108 F.3d at 976-77'.
Finally, Plaintiff asserts that differential treatment of Jones provides evidence of pretext and discrimination. The EEOC contends that the District failed to follow its standard practices regarding teacher complaints and discipline by delaying to inform Jones of the parental concerns and by transferring her without first attempting to resolve the problems through the District's Supervision and Growth Plan ("Supervision Plan"). The Supervision Plan is a progressive procedure for discipline in which a teacher with performance concerns may be moved from level I, indicating no concerns, to level II or III where he or she is subject to increased supervision. Vasichek Decl. Ex. 19. Defendant's failure to include Jones in the ongoing discussions with parents and board members is not exemplary and runs counter to the policy of the Collective Bargaining Agreement that the District "shall notify the teacher in writing of alleged delinquencies," and should bring complaints to the attention of the teacher. Vasichek Decl. Ex. 23 arts. IX(1)(d), VII(2)(b). However, impropriety is not determinative of discrimination. Hayes testified she did not discuss the issue with Jones because of the relative rapidity with which it arose as a serious problem, and that she was not looking for a long-term resolution, but rather immediate corrective action to address the enrollment concerns created by the negative public perception. Hayes Dep. at 82-83. Hayes asserts she did not realize the significance and pervasiveness of the issue until the Spring of 2000 when she was discussing the kindergarten program with various parents and board members. She testified that at this point she determined she needed to act quickly to avoid parents placing their children in other schools, such as the Montessori charter. Id. Plaintiff has not shown that this course of action was pretextual.
Further, the Supervision Plan is not mandatory, but is a merely a process available to the administration. Hayes Dep. at 137, 141-43; Murray Dep. at 12. An employer's decision not to follow recommended guidelines is insufficient to establish pretext, especially where there are multiple instances of deviation from such guidelines. See Sprenger, 253 F.3d at 1112. Of the thirty teachers the District identified as having performance concerns from 1999 to the present, only four were placed on the Supervision Plan. Vasichek Sealed Decl. Ex. 27. Accordingly the evidence does not establish that Jones was singled out for negative treatment in this regard.
In sum, this case presents unfortunate circumstances in which Defendant failed to accord one of its long-time teachers certain professional courtesies, or to engage in a meaningful dialogue to address legitimate educational concerns. Employer decisions which are handled in a less-than-ideal manner are not prohibited by the ADEA. Plaintiff must meet the threshold of adducing sufficient proof to create a reasonable inference of age discrimination. Defendant has articulated legitimate reasons for its actions. The EEOC has not raised a genuine dispute of fact as to whether the District's instruction and enrollment concerns with the kindergarten program and Jones' teaching were mere pretext for an age-based decision. See McDonnell Douglas. 411 U.S. at 804. Accordingly, summary judgment for Defendant is appropriate and is granted.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant's Motion for Summary Judgment [Docket No. 23] is GRANTED and
2. Plaintiff's Complaint [Docket No. 1] is DISMISSED WITH PREJUDICE.LET JUDGMENT BE ENTERED ACCORDINGLY.