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Darchak v. City of Chicago Board of Education, No. 08-2732 (7th Cir. Sept. 3, 2009); Humphries v. Pulaski County, No. 08-2485 (8th Cir. Sept. 3, 2009)

| Sep 3, 2009 | Daily Developments in EEO Law |

Today, two cases involving public school employees. A Polish, bilingual high-school educator came out the better against the Chicago Public schools a year ago in Filar v. Board of Educ. of City of Chicago, 526 F.3d 1054 (7th Cir. 2008), and another Polish, bilingual teacher wins reversal of summary judgment in this case as well. The Eighth Circuit joins several other circuits in holding that compliance with an affirmative action program that favors minorities constitutes direct evidence of discrimination under Title VII, § 1981 and § 1983.

Darchak v. City of Chicago Board of Education, No. 08-2732 (7th Cir. Sept. 3, 2009): The plaintiff had over a decade in the Chicago Public school system before she was assigned as a probationary appointed teacher to a predominantly Latino school. The opinion summarizes the record evidence of what she faced:

“Darchak claims that within the first month of her full-time employment at Princeton, she noticed that the Hispanic students were receiving better treatment than the Polish students: Hispanic students were given better resources and native language services. When Darchak approached Acevedo with her concerns, [Principal Rosalva] Acevedo allegedly responded, ‘[Hispanic students] are better than Polish and deserve more than Polish people. . . . [I]f you don’t want to do whatever I tell you to do, you can leave my school.’ At the time, Darchak did not tell anyone about Acevedo’s remarks. Then, in early November, Acevedo gave Darchak a ‘cautionary notice’ charging her with ‘insubordination’ for refusing to follow the ESL teaching schedule. When Darchak confronted Acevedo about the notice, Acevedo allegedly replied, ‘I brought you to this school and you stupid Polack pushed the teachers against me.'”

Although the panel affirms summary judgment on Darchak’s First Amendment, state law retaliation and breach of contract claims, it finds that the district court erred in granting summary judgment on the Title VII national origin claim. The district court made the common error of assuming that evidence proffered by the plaintiff (excerpts of her own deposition) was worthy of no weight because it was “self serving.” Holds the panel: “[T]estimony based on first-hand experience is none of those things. Darchak’s testimony presents specific facts, even if that testimony may be less plausible than the opposing litigant’s conflicting testimony (a question we need not-nay, cannot-reach). . . . And while it is also true that isolated remarks are not enough to meet the plaintiff’s burden, remarks coupled with an adverse employment action suffice.”

The district court also erred in holding that there was no causal connection between the remarks and the non-renewal of the plaintiff. “the bare fact that Darchak was not fired immediately after Acevedo allegedly made these remarks does not destroy the potential causal connection. The structure of the school year dictated the employment timetable, and Acevedo may not have been able to recommend nonrenewal of Darchak’s contract any earlier than she did. In any event, we have previously found that three to four months between a remark and an employment action is not so long as to defeat the inference of a causal nexus, [citation omitted], and not much more time than that, if any, elapsed here.”

The panel concludes that while “it is possible the district court simply did not believe Darchak,” nonetheless “we repeat that it is not the court’s job to assess the persuasiveness of Darchak’s testimony.”

Humphries v. Pulaski County, No. 08-2485 (8th Cir. Sept. 3, 2009): Here’s another white female employee of a public school, working as a counselor but looking for a move into administration as an assistant principal. She applied for every vacancy but lost out to African-American candidates every time. Indeed, the plaintiff presented a record that the district — which was operating under desegregation decree — avowedly followed an affirmative action plan (“Plan 2000”) and court monitor’s recommendation for recruiting and hiring staff. Accordingly, though this was disputed, the district followed a policy of hiring assistant principals who were of a different race from the schools’ principals.

The court, reversing summary judgment, holds — in a matter of first impression for the circuit — that “evidence that an employer followed an affirmative action plan in taking a challenged adverse employment action may constitute direct evidence of unlawful discrimination. If the employer defends by asserting that it acted pursuant to a valid affirmative action plan, the question then becomes whether the affirmative action plan is valid under Title VII and the Equal Protection Clause.” The court cited cited authority from the Fourth, Fifth, Ninth, Tenth and Eleventh Circuits. Thus:

“We conclude that Humphries has raised a genuine issue of material fact concerning whether there was a specific link between the District’s decision not to promote her and the District’s various affirmative action policies. Humphries presented evidence that the District’s interview committees are instructed to abide by the District’s affirmative action policies. The District’s published hiring goals include hiring at least one minority administrator at each school and attaining a ratio of black administrators in proportion to the number of black certified personnel in the District. And, as explained above, Humphries created a genuine issue of material fact concerning whether the District has a policy of hiring assistant principals who are of a different race than the principal at a particular school. A reasonable jury could conclude that interviewers, who had been trained in the District’s ‘racial equality’ policies, effectuated those policies through their scoring and ranking of applicants and that the District therefore acted pursuant to its affirmative action policies when it failed to promote Humphries to one of the assistant principal positions.”

The district defended that its hiring policies were consistent with the Plan 2000 decree and the decree monitor’s mandates. The panel finds that the record was unclear as to whether the hiring policies were required by the Plan. “Moreover, the District’s assertion that its policies were implemented in adherence to Plan 2000 does not support its argument that its polices are remedial. Many of the District’s policies seem to be aimed at increasing the number of minority administrators hired. However, Plan 2000 merely requires the District to attain a racially diverse applicant pool for administrative positions; it does not set hiring goals.”

The panel also found that the question of whether the hiring policies were “remedial” was a disputed issue. “The parties did not focus on this issue in their briefs on appeal or in the district court, though Humphries did present evidence that the District’s annual reports claim that the District ‘continues to meet’ its racial quotas for administrators. Humphries contends, and we agree, that this evidence creates a genuine issue of material fact about whether there was a manifest imbalance in the workforce and whether the District is impermissibly maintaining, rather than attaining, a racial balance.”

Judge Melloy, dissenting in part, would have held “compliance with a valid remedial consent decree is a complete defense to claims of individualized relief.”

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