George v. Florence One Schs.

Kevin George, Sr., Plaintiff, v. Florence One Schools, Defendant.

C. A. No. 4:21-cv-2787-JD-KDW

United States District Court, D. South Carolina, Florence Division

February 17, 2023

REPORT AND RECOMMENDATION

Kaymani D. West, United States Magistrate Judge.

Plaintiff Kevin George, Sr. (“George” or “Plaintiff”) brings this action against his employer, Florence One Schools (the “District” or “Defendant”).^[1]Plaintiff's Complaint included claims of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, as amended, and under 42 U.S.C. § 1981 (“Section 1981”). Compl., ECF No. 1. In a June 17, 2022 Order the court adopted the undersigned's earlier Report and Recommendation that dismissed Plaintiff's Section 1981 cause of action. ECF Nos. 31, 34. This matter is now before the court on Defendant's Motion for Summary Judgment. ECF No. 35. Plaintiff opposes this Motion, ECF Nos. 37, 38; Defendant filed a Reply, ECF No. 41. Having considered the parties' filings and applicable law, the undersigned recommends Defendant's Motion for Summary Judgment be granted as to all claims except the Title VII discrimination claim as to the June 2020 application for an assistant principal position at South Florence High School (“SFHS”).

I. Background facts^[2]

A. Plaintiff's employment with the District

Plaintiff has been employed with the District since August 2001. Pl Resume, ECF No. 352 (also available at ECF No 38-5).^[3]From 2001 through 2014, Plaintiff worked as a special education and science teacher at Wilson High School. In 2014, he transferred to the District's alternative school, Alfred Rush Academy (“Rush” or “Rush Academy”), to teach science. In 2017, he applied for the open position of Assistant Director of Rush Academy for the 2018-19 school year. Id. For that position, Plaintiff was interviewed by the then-Director at Rush, Mr. Kennedy; and the then-District Director of Secondary Education, Dr. Kelvin Wymbs. Pl. Dep. 58-59, ECF No. 35-3. In May 2017, Plaintiff was offered the position and accepted it. Id. at 60; May 27, 2017 Offer Letter ECF No. 35-4. Plaintiff became an assistant principal at Wilson High School in 2021.

Rush Academy is the District's alternative school where middle school and high school students with severe disciplinary issues are sent with the goal of eventually being returned to their home schools. District Superintendent Richard O'Malley Dep. 24-26, ECF No. 35-5. When COVID-19 shut down all the schools in the state in March of 2020, Rush Academy went virtual for the last few months of that school year, and it remained virtual for the entire 2020-21 school year as well. George Dep. 64. In the 2020-21 school year Rush Academy had approximately 50 students enrolled to attend virtually at any given time. Pl. Dep. 65.

B. Plaintiff's May 2020 application for Moore Middle School Principal

In May 2020, Plaintiff applied for the principal position at Moore Middle School. Plaintiff estimated that, for the 2020-21 school year, Moore would have had approximately 700 students.

Pl. Dep. 81-83. Plaintiff was not interviewed for that position. Pl. Dep. 83. April Leroy, a White female who had been an assistant principal at Sneed Middle School, was chosen for the Moore Middle School Principal position. In his deposition Superintendent O'Malley noted Leroy had been working at Sneed, which was a school that was comparable in size to Moore. O'Malley Dep. 32-35. O'Malley noted Moore was transitioning in the grades it would contain, and someone with a “skill set for knowledge, in the areas of transitioning to a middle school; relationships with students, relationships with teachers, and relationships with community members - to help ease this transition.” O'Malley Dep. 33. As pointed out by Plaintiff, in the District's counsel-prepared Position Statement to the Equal Employment Opportunity Commission (“EEOC”) related to Plaintiff's Charge of Discrimination, the District indicated Superintendent O'Malley “had experience working with Ms. Leroy in the past and was impressed with her professionalism and capabilities.” District's Dec. 29, 2020 Position Statement to EEOC/South Carolina Human Affairs Commission (“SCHAC”) 2, ECF No. 38-18. In the Position Statement the District characterized Plaintiff's experience at Rush Academy as “very different from and inferior to that of Ms. Leroy[.].” Id.

C. Plaintiff's June 2020 application for SFHS Assistant Principal

In early June 2020, the District posted an opening for an assistant principal at SFHS. SFHS Principal Shand Josey (White female), Gregory Dukes (SFHS Assistant Principal, Black male). and Shemeika Nero (SFHS Assistant Principal, Black female) served as the interview panel for this position. SFHS Principal Josey Aff. ¶ 3, ECF No. 35-8. On Tuesday, June 16, 2020, the panel interviewed two candidates. On Monday, June 22, 2020, they interviewed three additional candidates, one of whom was chosen to be recommended for hire. The interview panel recommended Mrs. Joni Bown for the position, and the offer was made to her on Tuesday, June 23, 2020. Josey Aff. ¶¶ 4-6. Plaintiff submitted his application for the position on June 25, 2020, three days after final interviews were held and two days after the offer was made to Bown. Id. ¶ 7; Application Receipt, ECF No. 35-9. Josey indicated Plaintiff was not interviewed because the position had been filled at the time he applied. Josey Aff. ¶ 7. As noted by Plaintiff, in the District's Position Statement to the EEOC/SCHAC, the District did not mention the tardiness of Plaintiff's application. Rather, Defendant indicated Plaintiff “did not have the requisite skill set needed to fulfill the instructional assistant principal position and thus, he was not interviewed[,]” and he was less qualified than Bown, the candidate who was hired. Position Statement 2-3.

D. The District transferred an assistant principal to an unadvertised SFHS Assistant Principal position

In August 2020, Defendant transferred Daniel Humber, White male, into the position of Assistant Principal of SFHS without advertisement and without affording anyone the opportunity to interview for the position. Position Statement 3. The District indicated the position was not advertised because it “was not an opening the District had but rather was created based on the needs of the District as a result of the COVID-19 pandemic and the realigning of students from the Career Center [where Humber had been the assistant principal] to SFHS.” Id. The District noted Humber's prior experience as a band director “fit with the arts background of SFHS, which is a designated school for the arts in the District.” Id.

E. Plaintiff's Amended Charge of Discrimination

On November 9, 2020, Plaintiff filed an Amended Charge of Discrimination with the EEOC and SCHAC alleging race and gender discrimination for not having been chosen for the above-referenced principal and assistant principal positions. Charge, ECF No. 35-10. Plaintiff submits that both positions were filled by less qualified White females. Id. The Charge also indicates he recently learned of the “internal transfer of an Assistant Principal (White male) to a vacant Assistant Principal position, without either of the vacancies being announced.” Id. Plaintiff's Charge also makes reference to having contacted the District's Chief Officer of Human Resources (“HR”), Nathaniel Marshall (White male) to complain about an interaction with Ashley Watson, Director of Recruitment and Certification (White female) concerning his applications. Plaintiff indicates his concerns were not addressed. Id.

After an investigation, SCHAC issued its Dismissal and Notice of Right to Sue based on a no-cause finding. April 26, 2021 SCHAC RTS Letter, ECF No. 35-11. On May 28, 2021, the EEOC issued its Dismissal and Notice of Rights adopting the findings of SCHAC. EEOC RTS Letter, ECF No. 35-12. Plaintiff filed the instant litigation on August 27, 2021.

F. Plaintiff's June 2021 application for Rush Academy Director

Plaintiff continued to work as the Assistant Director at Rush Academy for the 2020-21 school year. In June of 2021, the position of Director for Rush Academy became open. Plaintiff submitted his application and was interviewed along with three other qualified candidates by a panel consisting of the following: Greg Hall, Assistant Superintendent of Secondary Education (White male); Precious Wymbs, then a high school assistant principal (Black female); Lisa Spears, supervisor of school-based therapists (Black female); and Ronald Oates, middle school principal (White male). Hall Dep. 20-22. The panel had a list of questions to ask each candidate and a scoring matrix comparing the candidates in a number of domains, including vision, instructional program, supports for students/interventions, and communications. Hall Dep. 23-24; List of Principal Interview Questions and completed Matrix scoring applicants for Director of Alternative Program Interview Score Summaries, ECF No. 35-14. Those scores indicate lead candidate Chris Coleman's score was a 60; applicants McCall and Mackins scored 56 and 50 respectively; and Plaintiff's score was a 35. Id. at 4. Coleman (Black male) was recommended for the position. Hall Dep. 29.

Plaintiff indicates he received an email on June 4, 2021 scheduling his June 8, 2021 interview for the Rush Academy Director position in which it listed Christopher Coleman as one of the interview panelists. June 4, 2021 Email Invitation, ECF No 38-20. Plaintiff indicates he saw Coleman on June 8 and learned he had interviewed for the position that day and was no longer on his interview team. Pl. Mem. 6 (citing to no record evidence). As noted by Plaintiff Coleman's...