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Chung v. El Paso Cnty.

United States District Court, D. Colorado

July 21, 2015

JULIA CHUNG, Plaintiff,

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Julia Chung, Plaintiff, Pro se, Colorado Springs, CO.

For El Paso School District #11, Defendant: L. Anthony George, Bryan Cave LLP-Denver, Denver, CO; Susan E. Duffey Campbell, Bryan Cave HRO-Colorado Springs, Colorado Springs, CO.

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Kristen L. Mix, United States Magistrate Judge.

This matter is before the Court on Defendant's Corrected Motion for Summary Judgment [#79][1] (the " Motion" ).[2] Plaintiff, who proceeds in this matter as a pro se litigant,[3] filed a Response [#82] in opposition to the Motion,[4] and Defendant filed Reply [#88]. The Court has reviewed the Motion, Response, Reply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#79] is GRANTED.

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I. Summary of the Case[5]

Based on the following events, Plaintiff asserts claims of employment discrimination and retaliation due to her race (Asian) and national origin (Chinese). Compl. [#1]; Response [#82] ¶ 52; Reply [#88] ¶ 52. Defendant District 11 (" Defendant," " District 11," or the " District" ) is a public school district in Colorado. Decl. of Karey Urbanski [#79-13] ¶ 3. Sabin Middle School (" Sabin" ) is located in Colorado Springs, Colorado, and is a District 11 school for grades six through eight. Id.; Depo. of Pl. [#79-2] at 16. Plaintiff has been employed by Defendant as a teacher since 1992, and since school year (" SY" ) 1993-94, she has taught only at Sabin. [#79-2] at 16. Sherry Kalbach (" Kalbach" ) has been the principal at Sabin since approximately SY 2006-07. Id. at 23-24; Depo. Ex. 4 [#79-16]. Berry Swenson (" Swenson" ) was the principal at Sabin before Principal Kalbach. Id.

District 11's school year runs from the second week of August to the end of May. [#79-2] at 16-17. Around April of each year, Principal Kalbach assigns each teacher to his or her subject for the upcoming school year. Decl. of Sherry Kalbach [#79-12] ¶ 3. In more recent years, Principal Kalbach has invited teachers to tell her their preferences for teaching assignments, although she is not bound by those preferences. Id.; Depo. Ex. 7 [#79-17]. From SY 1993-94 through SY 1998-99, Plaintiff taught various sixth grade subjects. From SY 2001-02 through SY 2003-04, Plaintiff taught 8th Grade Language Arts. From SY 2004-05 through SY 2009-10, she taught Drama. From SY 2010-11 through SY 2012-13, she taught 6th Grade Reading. From SY 2013-14 through SY 2014-15, she again taught Drama. [#79-2] at 19-21; [#79-12] ¶ ¶ 5, 21; [#79-16].

As a teacher at Sabin, Plaintiff is represented by a labor union, the Colorado Springs Education Association, and is employed pursuant to a collective bargaining agreement called the Master Agreement. [#79-2] at 135. Former Principal Swenson first assigned Plaintiff to teach Drama for SY 2004-05. [#79-2] at 135. In response, Plaintiff filed a grievance under the Master Agreement, but ultimately her assignment to Drama was not changed. Id. at 22, 57. Plaintiff taught Drama for six years, from SY 2004-05 through SY 2009-10. [#79-2] at 19-20; [#79-16]. In each of those years, Defendant paid the conference fee and mileage for Plaintiff to attend a theater conference. [#79-2] at 31-32; [#79-13] ¶ 4.

Principal Kalbach changed Plaintiff's assignment to 6th Grade Reading for SY 2010-11, without Plaintiff having first requested the assignment. [#79-2] at 22-23; [#79-16]. Plaintiff taught 6th Grade Reading for three years, from SY 2010-11 through SY 2012-13. [#79-2] at 19-20; [#79-16]. Plaintiff received Exemplary evaluations as a 6th Grade Reading teacher.[6] Response [#82] ¶ 51; Reply [#88] ¶ 51. During the three years that Plaintiff taught 6th Grade Reading, she also sponsored

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the Drama Club. [#79-2] at 24. She agreed to do so because of the students' enthusiasm and the opportunity it gave her to bond with the students. Id. at 25. Defendant provided Plaintiff with a stipend of approximately $500 per year for sponsoring the Drama Club. Id. at 28.

Beginning in SY 2010-11, Susan Strong (" Strong" ) was employed at Sabin as the SAIL (i.e., gifted and talented) Language Arts teacher. [#79-12] ¶ 12. Her status that first year was " Intent Not to Renew" (" INR" ), which meant that her contract would automatically expire at the end of that school year.[7] Id. Regardless, Ms. Strong was retained by Principal Kalbach with the same teaching assignment for SY 2011-12.[8] Id. In May 2012, Principal Kalbach announced the teaching assignments for SY 2012-13, including Ms. Strong's assignment.[9] Id. ¶ 16. Principal Kalbach states that she had reviewed Ms. Strong's contract and assigned her to teach 6th Grade Reading because her performance review was strong.[10] Id. ¶ 13. At the time, Plaintiff had more experience as a 6th Grade Reading teacher and had better performance reviews than Ms. Strong, who later became the co-chair for the Reading Department for SY 2014-15. Response [#82] ¶ ¶ 52, 54; Reply [#88] ¶ ¶ 52, 54.

In June 2012, Plaintiff sent Principal Kalbach an email in which she requested a letter of reference in connection with Plaintiff's application for the position of TCT Coordinator. [#79-4] at 133-34; [#79-7] at 68-69; Depo. Ex. K [#79-23]. Principal Kalbach asserts that she did not provide the letter to Plaintiff because the deadline for submission of the application materials had passed by the time she saw the email, but that she instead invited Plaintiff to identify Principal Kalbach as a reference and ask people to call her for a reference.[11] [#79-2] at 127; [#79-7] at 68-69; Depo. Ex. K [#79-23]. Plaintiff did not do so. Id. At some point after this email thread occurred, Principal Kalbach was asked to sit on the interview panel for the TCT Coordinator position, and after that point, Principal Kalbach states that she would not have provided a letter of reference for any candidate because of the conflict of interest. [#79-7] at 69-71, 77.

In July 2012, Principal Kalbach served on the interview panel when Plaintiff interviewed

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for the TCT Coordinator position.[12] [#79-2] at 133-34; Depo. of Sherry Kalbach [#79-7] at 68-70, 77-78; [#79-23]. Principal Kalbach said nothing negative about Plaintiff when Plaintiff was interviewed for the position or in the discussions among the interviewers thereafter. [#79-7] at 77-78. Rather, she stayed silent until the other interviewers had stated their impressions of Plaintiff and then only said, " I agree." Id. Ultimately, another candidate was hired for the position, but according to Karey Urbanski, District 11's HR Director for Secondary Education who served on the panel that interviewed Plaintiff and other candidates for the TCT Coordinator position and selected the candidate for the position, Plaintiff was not denied the position because of anything Principal Kalbach said or did. [#79-13] ¶ ¶ 2, 14.

In 2012 or 2013, Plaintiff applied to be a Disciplinary Coach. [#79-3] at 131. Principal Kalbach asserts that she had no involvement in that application or selection process and that she did not provide a negative reference or make any negative comments about Plaintiff. [#79-12] ¶ 20.

In April 2013, Principal Kalbach decided to add Drama to the schedule for SY 2013-14. Id. at 38-39. She assigned Plaintiff to teach Drama and informed Plaintiff of this decision in a meeting on April 5, 2013. Id. at 41; Depo. Ex. 8 [#79-18]. Principal Kalbach asserts that she assigned Plaintiff to teach Drama because she wanted someone with experience teaching Drama, because Plaintiff had previously taught Drama for six years at Sabin, because, as far as Principal Kalbach was aware, Plaintiff was the only teacher at Sabin who had previously taught Drama at any school, and because Defendant had previously provided money for Plaintiff to attend theater conferences and to sponsor Sabin's Drama Club.[13] Depo. of Sherry Kalbach [#79-7] at 95-96; [#79-12] ¶ 5.

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In addition, Principal Kalbach believed that Plaintiff was " highly qualified" to teach Drama because Plaintiff had taught Drama at Sabin for six years after passage of the No Child Left Behind Act. [14] [#79-7] at 103-05, 177-78; [#79-13] ¶ ¶ 6-7, 9. Principal Kalbach believed that CDE and the District's Human Resources Department (" HR" ) would not have allowed Plaintiff to teach Drama for six years if she was not " highly qualified" to do so.[15] When Plaintiff later spoke with Principal Kalbach's supervisor Jason Ter Horst (" Ter Horst" ), Defendant's K-12 Executive Director, about her assignment to Drama in 2013, he asked HR to confirm whether Plaintiff was " highly qualified" to teach Drama. [#79-13] ¶ 9; Depo. of Jason Ter Horst [#79-9] at 19-22. HR reviewed Plaintiff's records and determined that she was " highly qualified" to teach Secondary English Language Arts and therefore she was " highly qualified" to teach Drama. [#79-13] ¶ 9.

Plaintiff opposed the Drama assignment and unsuccessfully attempted to persuade Principal Kalbach to change her mind. [#79-2] at 43, 45. Principal Kalbach instead offered to buy new Drama supplies and materials, as well as to consider Plaintiff first if a Reading teaching assignment became available over the summer of 2013. Id. at 47; [#79-18]; [#82-30]. On April 25, 2013, approximately two weeks after being informed of her new assignment, Plaintiff met with Alvin Brown (" Brown" ), Defendant's Equal Opportunity Programs Director. [#79-2] at 50; Depo. of Alvin Brown [#79-6] at 8. At that meeting, Plaintiff complained of her Drama assignment and stated that she felt she was being discriminated against. [#79-6] at 14-15. She told Mr. Brown that she would prefer either teaching English or receiving a promotion to an administrative position, and she authorized Mr. Brown to attempt to resolve the issue. Id. at 17-18. Mr. Brown thereafter spoke multiple times with Principal Kalbach and Mr. Ter Horst. Id. at 18, 24; [#79-2] at 52-53; [#79-3] at 71; [#79-9] at 9-10. After these meetings, Mr. Brown told Plaintiff that Mr. Ter Horst and Principal Kalbach had conveyed to him a nondiscriminatory reason for Plaintiff's assignment to Drama, and that this reason seemed truthful to him. [#79-6] at 25-26. On April 26, 2013, the day after Plaintiff first met with Mr. Brown, she filed a charge of discrimination with the Equal Employment Opportunity Commission (" EEOC" ). [#79-4] at 163; Depo. Ex. 33 [#79-22]; see also [#82-27].

Plaintiff had not complained to Defendant about alleged harassment by Principal Kalbach before speaking to Mr. Brown on April 25, 2013. [#79-4] at 155. The evidence demonstrates that Principal Kalbach has treated employees other than Plaintiff, including those not believed to be

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Asian or Chinese, in ways that include: being reserved in a way that could be viewed as " silent treatment; " giving them disapproving looks and interrupting them in meetings; criticizing their statements or ideas in a way that could be construed as a " put down; " and speaking in a curt tone that could be viewed as " hostile" or " condescending." [16] [#79-12] ¶ 10; Decl. of Marsha West [#79-14] ¶ ¶ 4-7; Decl. of Carolyn Hunt [#79-27] ¶ ¶ 4-6. Principal Kalbach admits to having acted in the same manner with Plaintiff when she felt that Plaintiff was being disruptive or going off on tangents. [#79-12] ¶ 10; [#79-27] ¶ 7. Principal Kalbach's opinion of Plaintiff is that she can be needlessly confrontational and argumentative, that she does not listen, and that she disrupts meetings with irrelevant issues. [#79-12] ¶ 9.

Sometime between April and June 2013, the SAIL Reading/Language Arts teaching position at Sabin became available. [#79-12] ¶ 6. Plaintiff spoke with Mr. Ter Horst about the position but ultimately she did not teach the subject. [#79-3] at 71; Depo. Ex. 33 [#79-19]. A 7th Grade Reading teacher at Sabin was assigned to the position instead. [#79-12] ¶ 6. Although Plaintiff, Principal Kalbach, and Mr. Ter Horst discussed Plaintiff taking the now-open 7th Grade Reading assignment, she ultimately did not teach this subject either. [#79-3] at 82-83; Depo. Ex. 19 [#79-20]. As originally assigned, Plaintiff taught Drama in SY 2013-14. [#79-16]. Plaintiff lost no pay or benefits as a result of her teaching assignment to Drama instead of 6th Grade Reading. [#79-4] at 236-37; [#79-13] ¶ 10.

In mid-2013, Plaintiff applied for a position as District 11's Multi-Lingual Facilitator (" MLF" ).[17] [#79-4] at 165, 167. Defendant conducted three rounds of interviews for the MLF position. Depo. of Holly Brilliant [#79-5] at 13. Plaintiff interviewed during the first round in early or mid-August 2013. Id. at 14; [#79-4] at 171. After the first round, the job was reposted with a note that " Previous applicants do not need to reapply." [#79-5] at 24; [#79-11] ¶ 4, Ex.1. The final selection was made in November 2013. [#79-5] at 33; Depo. Ex. YYY [#79-25]. In filing the position, Defendant sought a person who had recent experience as an ELL teacher and successful leadership of an ELL program at a district level. [#79-5] at 27; [#79-11] ΒΆ 5. Defendant asserts ...

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