Plaintiff Mark Edward Brown sued defendant Unified School District No. 501 (USD 501) in the United States District Court for the District of Kansas, raising claims of retaliation under Title VII and 42 U.S.C. § 1981. The district court granted summary judgment in favor of USD 501, and Brown appealed to the United States Court of Appeals for the Tenth Circuit.
Factual Overview
Mark Edward Brown, a Black man, worked as a physical education teacher for USD 501 from 1982 until his resignation in 1996. In 1991, while still employed, Brown unsuccessfully sued USD 501 for race discrimination and retaliation. After his resignation, Brown applied for re-employment with USD 501 but was informed in 2001 that he would not be considered for rehire. Brown disputed the basis for this decision and filed unsuccessful lawsuits against USD 501 in 2004, 2010, and 2017, alleging race discrimination and retaliation.
On July 20, 2021, Brown applied for a substitute teaching position with USD 501. He was interviewed by phone on July 28 by Nancy McCarter, the Substitute Services Coordinator. Brown claims McCarter offered him a position during this interview, which he accepted. However, after the interview, McCarter discovered Brown’s no-rehire status in USD 501’s records. After consulting with her supervisor, Debbie Ramburg, McCarter called Brown and told him USD 501 was not hiring, without mentioning his no-rehire status.
In August 2021, Brown filed a discrimination charge with the Kansas Human Rights Commission and the Equal Employment Opportunity Commission (EEOC). The EEOC issued a right-to-sue letter on October 26, 2021. On January 18, 2022, Brown emailed McCarter expressing continued interest in substitute teaching but received no response. On January 26, 2022, a local news program announced that USD 501 had hired at least 50 new substitute teachers.
Brown filed a new EEOC charge on July 31, 2022, alleging retaliation by USD 501 based on the January 2022 incidents. The EEOC issued another right-to-sue letter on September 14, 2022. On December 15, 2022, Brown filed his fourth failure-to-rehire lawsuit against USD 501, asserting retaliation claims under Title VII and § 1981.
Legal Analysis
Timeliness of Title VII Claim: The court held that Brown’s Title VII retaliation claim regarding his July 2021 substitute teacher application was untimely. Brown did not file suit within 90 days of receiving the EEOC’s right-to-sue letter dated October 26, 2021, as required by law. The court also ruled that Brown could not revive this untimely claim by including it in his later EEOC charge filed in July 2022.
Prima Facie Case of Retaliation: Regarding Brown’s Title VII claim related to his January 2022 email, the court held that Brown failed to demonstrate a prima facie case of retaliation. While the court found that Brown satisfied the first element by engaging in protected opposition to discrimination through his previous lawsuits, it concluded he failed to demonstrate the second and third elements.
The court ruled that USD 501’s failure to respond to Brown’s email did not constitute a materially adverse action, as Brown had not reapplied for a job and presented no evidence that a reasonable applicant would find an unanswered email to be materially adverse.
On the causation element, the court found insufficient temporal proximity between Brown’s earlier lawsuits (the most recent being in 2017) and the unanswered email in January 2022. The court also noted the lack of evidence that McCarter was aware of Brown’s previous lawsuits.
Section 1981 Claim: The court agreed with USD 501’s argument that § 1981 tort claims against state actors must be brought under 42 U.S.C. § 1983, which Brown had not done. The court declined to allow Brown to amend his complaint at such a late stage in the litigation, stating that amendment would be futile.
The Tenth Circuit affirmed the district court’s grant of summary judgment in favor of USD 501 on Brown’s Title VII and § 1981 retaliation claims.
Schrag on Law 