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Killian v. Georgetown Day School

May 24, 2007

SHARON KILLIAN, PLAINTIFF,
v.
GEORGETOWN DAY SCHOOL, DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Plaintiff Sharon Killian brings this action against defendant Georgetown Day School ("GDS" or the "School"), alleging claims of racial discrimination and retaliation under Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the District of Columbia Human Rights Act, D.C. Code § 2-1401.01, et seq. ("DCHRA"). Currently pending before the Court is defendant's motion for summary judgment on all of plaintiff's claims. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, the Court determines that plaintiff's claims of racial discrimination and retaliation fail as a matter of law. Therefore, for the reasons stated herein, defendant's motion for summary judgment is GRANTED.

BACKGROUND*fn1

Plaintiff is an African American woman. GDS is a parent-owned nonprofit coeducational day school in Washington, D.C. At the recommendation of then-high school Studio Art Department ("Art Department") Chair, Debbie Haynes, GDS first hired plaintiff for the 1993-1994 academic year as a frequent substitute for the Art Department faculty. The next year plaintiff served as a "permanent substitute" for Erica Elliott, who had taken an unpaid leave of absence. Plaintiff received a positive evaluation for her teaching efforts that year. Plaintiff was hired as a full-time member of the Art Department for the 1995-1996 academic year when Elliott decided not to return to GDS. Haynes continued to be the Art Department Chair through the 1999-2000 academic year. Although the relationship between Haynes and plaintiff was not always positive, Haynes's final evaluation of plaintiff was favorable. In 2000-2001, newly-hired Nick Ryan, a Caucasian male, replaced Haynes as Department Chair. She stayed on part-time before retiring at the end of the academic year.

From the 2000-2001 academic year through her final year in the Department, 2004-2005, plaintiff taught four sections of art courses: two sections of Introduction to Photography and either one section of AP Studio Art and one section of Advanced Painting and Drawing, or two sections of AP Studio Art. In addition, plaintiff played an active role in various GDS diversity-related initiatives. During that period, the only other full-time members of the Art Department were Ryan and Laura Tolliver, a Caucasian woman. Ryan's evaluations of plaintiff's work were consistently positive throughout plaintiff's tenure at GDS, and Ryan specifically praised plaintiff for promoting the multi-cultural mission of the School. Plaintiff believes that Ryan's evaluations of her as a member of the GDS faculty were fair and that these evaluations did not reflect racial prejudice against her as an African American.

In the 2000-2001 academic year, Ryan and then-Principal Paul Levy decided to name an Art Award in honor of Haynes. This decision was made without consulting plaintiff or Tolliver. Debbie Haynes taught at GDS for nearly three decades, and she chaired the Art Department for almost all of those years. GDS High School department chairs, such as Ryan, often make administrative decisions without the input of the department members as part of their regular duties. Ryan considered the decision to name an art award after Haynes to be an administrative decision.

In February 2002, plaintiff came to the School over a weekend and replaced an art display of the work of one of Tolliver's students with African American art from a local gallery, without first seeking permission from Tolliver. That same weekend, the Black Culture Club ("BCC") hosted a dance at the School, leaving paper banners advertising the dance hanging outside the art studio windows. When Ryan arrived in the art studio on Monday morning, he and GDS high school Building Manager George Buckwalter removed the paper banners, which had been damaged by the weather. The two brought the paper banners inside and placed them on the floor. Plaintiff did not witness Ryan and Buckwalter while they were taking the paper banners down. The BCC paper banners were the type of banner advertising a School event that is generally disposed of soon after the event takes place, regardless of their physical condition.

Later that Monday, Ryan communicated to plaintiff that she should have asked Tolliver's permission before replacing the art display of Tolliver's student. Plaintiff has characterized Ryan's tone of voice as screaming. The normal practice among the art teachers is to ask permission before replacing an art display, a practice that plaintiff believes is appropriate and acknowledges she did not follow. Plaintiff claims, however, that Ryan never yelled at any other teachers in the School.*fn2

In February 2004, plaintiff became aware of Tolliver's plan to change the name of her graphic design course to "Graphic Design" for the 2004-2005 academic year. When plaintiff approached Ryan to complain about the change in the name of the course to "Graphic Design," Ryan was unaware that the name of plaintiff's proposed yearbook course had been changed to "Graphic Design and Publishing." In response to plaintiff's complaint, plaintiff claims that Ryan leaned forward in his chair and said, in a fairly loud and expressive voice, "Sharon, I can't bend low enough to the ground to understand you."*fn3 Plaintiff also claims that Ryan gestured in an ape-like manner. Plaintiff twice repeated to Ryan, "You just said I can't bend low enough to the ground to understand you?" and went downstairs to report the incident to then-Director of Studies Kevin Barr.

In light of plaintiff's complaint, Barr suggested that the GDS Co-Directors of Diversity, Mariama Richards and Elizabeth Denevi, use mediation as a way to help the members of the Art Department understand each others' perspectives and work more cooperatively. The attempt at mediation was unsuccessful. On July 6, 2004, plaintiff sent a letter to Daniel Johnson, an attorney who had previously represented the School, in which plaintiff's counsel outlined plaintiff's basis for believing she was subject to a racially hostile work environment at GDS. In response to plaintiff's letter, the School retained Caryn Pass, an attorney from Krupin O'Brien LLC, to conduct an independent investigation into plaintiff's complaints.

Plaintiff complained on February 9, 2005, that she was being denied equal access to the Art Department's digital video cameras. At that time, only Tolliver had a key to the cabinet with the cameras because they had been purchased for use in Tolliver's Film and Video course. Limiting access to the teacher in charge of the Film and Video course was considered an effective method to reduce the chance that a camera might become lost or unavailable for student use. On February 14, 2005, Principal Kevin Barr directed "that each member of the Art Department have a key and equal access" to the storage cabinet. Had plaintiff returned to teach at GDS during the 2005-2006 school year, she would have taught Film and Video and been in charge of the digital video cameras herself, a result which plaintiff has acknowledged was satisfactory. In the course of resolving plaintiff's complaint to Barr, it was also discovered that plaintiff had access to certain cabinets to which Tolliver did not. Tolliver was subsequently given a key to those cabinets.

On February 25, 2005, plaintiff signed a contract to teach at GDS for the 2005-2006 academic year. Plaintiff, however, moved to Arkansas in the summer of 2005. Plaintiff did not notify the School that she was in Arkansas until late September 2005. On or about August 26, 2005, plaintiff left a voice message at the School saying that she could not return for the initial week of work because of health reasons. In the following weeks, she continued to tell the School that she could not return to work. On September 1, 2005, the School sent a letter informing plaintiff that she would receive short-term disability benefits until approximately November 25, 2005, and that her "job restoration protections" under the District of Columbia Family Medical Leave Act ("DCFMLA") would expire on December 16, 2005.

Although the School asked plaintiff to inform them when she would be able to report back to work, she never told the School whether she intended to return to work. In light of her continued absence, the School hired as long-term part-time substitutes Michelle Cobb, an African American teacher, and Nguyen Nguyen, an Asian American teacher. Cobb and Nguyen are still teaching at GDS in the Art Department. Plaintiff eventually told the School that she was physically incapable of working because of a medical disability and applied for long-term disability benefits on November 18, 2005. The School terminated plaintiff's employment after her DCFMLA protections expired on December 16, 2005.

Plaintiff filed this suit on September 29, 2005. Plaintiff's amended complaint, filed in March 2006, alleges four claims: (1) hostile work environment, constructive discharge, and termination of her position on the basis of race under Section 1981; (2) retaliation for filing this suit under Section 1981; (3) hostile work environment, constructive discharge, and termination of her position on the basis of race under the DCHRA; and (4) retaliation for ...


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