Dickerson v. Dist. of Columbia

1

Kenneth Dickerson, Appellant v. District of Columbia, Appellee

No. 22-7036

United States Court of Appeals, District of Columbia Circuit

June 20, 2023

Appeal from the United States District Court for the District of Columbia (No. 1:09-cv-02213)

Before: WILKINS, RAO, and PAN, Circuit Judges.

JUDGMENT

Per Curiam

This case was considered on the record from the United States District Court for the District of Columbia and the briefs and arguments of the parties. The Court has accorded the issues full consideration and determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). For the reasons stated below, it is:

ORDERED that the order of the district court, entered on March 3 2022, is AFFIRMED.

* * *

Dr Kenneth Dickerson is an African-American educator who was employed at Wilson Senior High School ("Wilson") in the District of Columbia from 1996 to 2008, most recently as an assistant principal. In 2007, Wilson underwent restructuring for failing to meet educational standards set by the No Child Left Behind Act (the "Act"). As the Act permitted, then-D.C. Public Schools Chancellor Michelle Rhee decided to replace Wilson's entire leadership team including Dr. Dickerson. He filed this lawsuit against the District of Columbia under 42 U.S.C. §§ 1981 and 1983 for intentionally discriminating against him based on his race. He alleged that the District's explanation for his non-reappointment was pretextual and asserts that racial animus motivated that decision. The district court found insufficient evidence to support his claim, and granted the District's motion for summary judgment. We affirm.

At all times relevant to this case, District of Columbia schools were subject to the No Child Left Behind Act. See Pub. L. No. 107-110, 115 Stat. 1425 (2002), repealed by Every Student Succeeds Act, Pub. L. No. 114-95, 129 Stat. 1802 (2015). The Act required schools to make "adequate yearly progress" toward meeting proficiency goals. 20 U.S.C. § 6311(b)(2)(B), (G), (I) (2006). If a school failed to make adequate yearly progress for five consecutive years, it entered "restructuring," which included mandatory implementation of at least one "alternative governance" action in a manner "consistent with [s]tate law." Id. § 6316(b)(8)(B). One of the Act's "alternative governance" options allowed the District to "[r]eplac[e] all or most of the school staff (which may include the principal) who are relevant to the failure to make adequate yearly progress." Id. § 6316(b)(8)(B)(ii).

Wilson did not make adequate yearly progress for five years and entered restructuring during the 2007-08 school year. At the end of that school year, Chancellor Rhee elected to replace the school's entire leadership team - including the principal and all of the assistant principals - based on her conclusion that the school's leaders were "staff . . . relevant to the failure to make adequate yearly progress." See Powe Decl. ¶¶ 11-12; 20 U.S.C. § 6316(b)(8)(B)(ii) (2006). As a result, none of the members of Wilson's leadership team, including Dr. Dickerson, received an offer for reappointment. Even aside from the restructuring required by the Act, Chancellor Rhee had discretion to decide whether to reappoint principals and assistant principals, all of whom worked without tenure on a year-to-year basis. See D.C. Mun. Regs. subtit. 5-e, § 520.1-.2 (2008); see also Pl.'s Statement of Facts ¶¶ 2-3.

Chancellor Rhee's decision to replace Wilson's leadership team was consistent with the recommendations of a Local School Restructuring Team ("LSRT") composed of Wilson parents and staff, which provided her with feedback about how Wilson should be restructured. Among other reforms, the LSRT recommended "[b]ring[ing] in a permanent principal with a background of strong educational leadership" and engaging in "partial reconstitution of the Wilson staff/function," specifically including assistant principals. LSRT Mem. 1. The LSRT emphasized that "[t]he identification of new leadership [was] the foundation of [the] restructuring effort" and that reconstitution would "allow the new principal to establish a new leadership team for the school that will . . . build the grade-level teamwork that will be essential between each assistant principal and counselor." Id.

The District hired Peter Cahall as Wilson's new principal. It also hired four new assistant principals for the 2008-09 school year. Two of the new assistant principals were African-American. One, Mary Beth Waits, was a white woman. Principal Cahall specifically requested that the District hire Ms. Waits. In an email to Chancellor Rhee, he wrote: "You told me to tell you what I need and I need to have Mary Beth on my team." J.A. 552. Cahall further noted that Ms. Waits had an advanced degree, "is a master scheduler," and previously "worked to get a school out of restructuring." Id. at 551-52.

On June 30, 2009, Dr. Dickerson and other former school officials who were not reappointed pursuant to school restructurings under the Act filed the instant lawsuit in D.C. Superior Court. The District removed the case to the U.S. District Court for the District of Columbia. The plaintiffs alleged, among other claims, that the District unlawfully discriminated against them by not reappointing them, thus violating 42 U.S.C. § 1981 and various other state and federal laws. In a thorough opinion, the district court evaluated and dismissed all but the § 1981 claims. See Dickerson v. District of Columbia, 70 F.Supp.3d 311 (D.D.C. 2014) (Dickerson I). Years later, only Dr. Dickerson remained in the lawsuit; all the other plaintiffs had voluntarily dismissed their claims or had their cases dismissed for lack of prosecution. On March 13, 2018, Dr. Dickerson filed a Fourth Amended Complaint, alleging that the District violated 42 U.S.C. §§ 1981 and 1983 by not reappointing him because of his race. See Fourth Am. Compl. ¶¶ 29-40. The district court denied the District's motion to dismiss this Complaint, so the parties proceeded to discovery. See Dickerson v. District of Columbia, 315 F.Supp.3d 446 (D.D.C. 2018) (Dickerson II).

After discovery concluded, the District successfully moved for summary judgment. See Dickerson v. District of Columbia, No. 1:09-cv-2213 (PLF), 2022 WL 656172 (D.D.C. Mar. 3, 2022) (Dickerson III). Applying the McDonnell Douglas framework, the district court concluded that the District's restructuring of Wilson constituted a legitimate, nondiscriminatory reason for Dr. Dickerson's non-reappointment, and that Dr. Dickerson's allegations of pretext were unsupported by the record, incorrect as a matter of law, or immaterial to the discrimination claims. Id. at *9-12.

We review a district court's grant of summary judgment de novo, analyzing the evidence in the light most favorable to the non-movant and drawing all reasonable inferences in his favor. See Morris v. McCarthy, 825 F.3d 658, 667 (D.C. Cir. 2016). Summary judgment is appropriate "if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Fed.R.Civ.P. 56(a). Because Dr. Dickerson brought a § 1981 claim for disparate treatment, he must point to evidence that the District intentionally discriminated against him on the basis of race. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 & n.1 (D.C. Cir. 2013) (per curiam).

When an employer offers a legitimate, nondiscriminatory reason for an allegedly discriminatory employment action, "the district court need not - and should not - decide whether the plaintiff actually made out a prima facie case" of discrimination under the familiar McDonnell Douglas burden-shifting framework. Brady v. Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis omitted); see also Brown v. Sessoms, 774 F.3d 1016, 1022 (D.C. Cir. 2014) (explaining that McDonnell Douglas applies to § 1981 claims). Instead, the district court "better spends its limited resources on assessing the third prong," i.e., whether the employer's asserted reason was a pretext for discrimination. Figueroa v. Pompeo, 923 F.3d 1078, 1087 (D.C. Cir. 2019). This allows the district court to "resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race . . . ?" Brady, 520 F.3d at 494.

Here the District provided a legitimate, nondiscriminatory reason for not reappointing Dr. Dickerson as an assistant principal: the "categori[c]al decision to non-reappoint the entire leadership team at Wilson High School, in [an] effort to comply with federal requirements for restructuring a school that was failing to educate its students." Def.'s Mem. Supp. Summ. J. 11 (emphasis in original). Dr. Dickerson did not challenge the legitimacy of the District's proffered nondiscriminatory reason in the district court, so he may not do so on appeal. See Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1039 (D.C. Cir. 2003) (declining to address the merits of a claim "raised for the first time on appeal"). In his opposition to the District's motion for summary judgment, Dr. Dickerson noted that the District "assert[ed] that it has a legitimate business reason for its decision," and he therefore "proceed[ed] directly to McDonnell Douglas['s] third step" regarding pretext. Pl.'s Opp'n to Summ. J. 15-16; see Dickerson III, 2022 WL 656172, at *10 (noting that plaintiff "[did] not dispute that a restructuring can constitute a legitimate, nondiscriminatory reason for an employee's non-reappointment"). We thus...