United States District Court, D. Rhode Island
JUDY B. COLMAN, et al., Plaintiffs,
DAVID P. FAUCHER, et al., Defendants
Corrected October 15, 2015.
Judy B. Colman, Hadley Colman, Plaintiff: Chip Muller, LEAD
ATTORNEY, Muller Law, LLC, Providence, RI.
David P. Faucher, in his capacity as Finance/Personnel
Director of the Town of Portsmouth, Town of Portsmouth,
Michael Lunney, in his Professional and Personal Capacities,
Michael Borrosh, in his Professional and Personal Capacities,
Defendants: Marc DeSisto, LEAD ATTORNEY, DeSisto Law,
McConnell, Jr., United States District Judge.
Colman and her daughter, Hadley Colman, brought this
action claiming civil rights violations, all
stemming from what Ms. Colman contends was the gender
discrimination-motivated failure to hire her as the head
coach for the girls' lacrosse team at Portsmouth High
School (PHS). She maintains that the Town of Portsmouth and
the individual Defendants, all official actors of the
Town, intentionally discriminated against
her because she is a woman and that in doing so they ran
afoul of the Rhode Island Civil Rights Act (RICRA) and the
Rhode Island Fair Employment Practices Act
(RIFEPA). The gist of Hadley Colman's claim
is that she was the star player on the girl's lacrosse
team until a new head coach was hired, that he failed to give
her the playing time that she deserved, that in doing so he
deprived her of a chance to advance to competitive college
play, and that the treatment she received was in retaliation
for protected actions her mother undertook. Hadley also
claims a Title IX violation, pursuant to 20 U.S.C. §
moved for summary judgment. (ECF No. 22). Upon review of the
parties' briefs and arguments, it is clear to the Court
that its ruling on Defendants' motion is guided by the
answer to the question of who should decide this dispute, a
judge or a jury. " [I]n cases involving women plaintiffs
where legal arguments are frequently novel and innovative,
where subtle issues of credibility, inferences, and close
legal questions may be involved, where issues concerning the
'genuineness' or 'materiality' of facts are
frequently intertwined with law, a single district judge may
be a less preferable decision maker than a jury. Juries are
likely to be far more diverse and bring a broader range of
perspectives to bear on the problem." Elizabeth M.
Schneider, The Dangers of Summary Judgment: Gender and
Federal Civil Litigation, 59 Rutgers L.Rev. 705, 713
(2007). See also Ganzy v. Allen Christian
School, 995 F.Supp. 340, 360-61 (E.D.N.Y. 1998) ("
The complex history of women's rights, employment, and
sexuality . . . as well as normal methods of determining
witnesses' credibility, might lead different jurors to
evaluate differently the veracity of the witnesses and the
honesty of the Defendant's proffered reason for
dismissal. Under such circumstances, a decision by a
cross-section of the community in a jury trial is
appropriate." ). For that reason, a court granting
summary judgment in employment discrimination cases has been
termed " problematic," based on reports produced by
the Eighth Circuit and the Ninth Circuit, because "
summary judgment was more likely to be granted to defendants
in employment discrimination
cases involving women plaintiffs." Schneider,
supra, at 710.
of the Federal Rules of Civil Procedure governs the summary
judgment process. It provides,
(a) MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT.
A party may move for summary judgment, identifying each claim
or defense -- or the part of each claim or defense -- on
which summary judgment is sought. The court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.
terms of Rule 56, a party is entitled to summary judgment
only if both conditions specified in Rule 56 are met: that
" no genuine dispute [exists] as to any material
fact" and that the undisputed facts demonstrate that the
party is " entitled to judgment as a matter of
law." See Knight v. Mills, 836 F.2d
659, 664 (1st Cir. 1987) (undisputed material facts, together
with inferences drawn against the movant, " must lead to
one reasonable conclusion in favor of the movant" to
justify summary judgment). A material fact is one that "
might affect the outcome of the suit under the governing law.
. . . Factual disputes that are irrelevant or unnecessary
will not be counted." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
judgment is a drastic remedy because it deprives the
parties of the opportunity to have a jury determine the
outcome as enshrined in the Seventh Amendment to the United
States Constitution (" In Suits at common law, where the
value in controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved . . . ." ). Thus,
the law requires that all reasonable inferences be drawn
against the moving party and that summary judgment be granted
if the undisputed facts and inferences that flow from them
allow for only one reasonable conclusion in favor of the
movant. Knight, 836 F.2d at 664 (citing
Anderson, 477 U.S. at 251). This Court must "
tak[e] the facts in the light most favorable to the
non-moving party and draw all reasonable inferences in
[her] favor." Barraford v. T & N Ltd., 778 F.3d
258, 263 (1st Cir. 2015).
matter, for the reasons that follow, the Court finds that
summary judgment should be GRANTED in favor of all Defendants
with respect to Counts III through V, and summary judgment
should be GRANTED in favor of Defendant Michael Borrosh
(only) with respect to Counts I and II. Summary Judgment is
DENIED as to all other Defendants with respect to Counts I
mid-February 2010, the PHS girls' lacrosse head coach
Jeffrey McGuirl announced he was leaving his position. (ECF
No. 25-2 at 13). Sometime before the open position was
posted, however, PHS Booster member Michael Borrosh
approached PHS Athletic Director Michael Lunney (A.D. Lunney)
and expressed interest in the vacancy. A.D. Lunney
informally offered the position to Mr. Borrosh, on the spot.
(ECF No. 25-3 at 23).
posted the vacancy online on February 21, 2010. (
Id. ). The job posting listed " coaching
experience" as the only qualification with no additional
details of the job requirements. ( Id. at 24).
Colman was at the time both the head coach for the PHS
girls' tennis team and a volunteer assistant coach for
the PHS girls' lacrosse team, assisting former Coach
McGuirl during the 2009 season. Ms. Colman applied online
once the open position was posted, but she was never
interviewed. During the hiring process, Coach McGuirl was
never asked about her performance as assistant coach. (ECF
No. 25-2 at 12).
Mr. Borrosh " was brought in for an interview and hired
as the girls' varsity coach on February 25 of 2010."
(ECF No. 25-3 at 23). Several days after being hired, Mr.
Borrosh did submit an online application. (ECF Nos. 26-4 at
9, 25-3 at 37). According to the PHS principal Robert
Littlefield, Mr. Borrosh did not submit the required resume
and two letters of recommendation. (ECF No. 26-5 at 13).
There were no other applications or other interviews. Mr.
Borrosh's name was submitted to the School Board some
weeks later, on or about March 9, 2010, and the Board
approved his hiring. (ECF No. 25-3 at 27-28).
Counts I and II: Gender Discrimination
there is no direct evidence of discriminatory animus, the
protocol for proving a disparate treatment claim of
intentional gender discrimination through indirect evidence
is settled and familiar,
described by McDonnell Douglas Corp. v. Green, 411
U.S. 792, 801-02, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). It is
a three-part exercise, consisting of a (1) prima facie case
presented by the plaintiff, (2) a justification put forth by
the defendants, and (3) an assessment of whether the
purported justification is legitimate or a pretext for
impermissible discrimination. Id.
a plaintiff has demonstrated a prima facie case is normally a
jury question in the First Circuit. Rodriguez-Torres v.
Caribbean Forms Mfr., Inc., 399 F.3d 52, 58-59 (1st Cir.
2005) (discussing jury instructions with respect to fourth
step of McDonnell Douglas prima facie case
analysis). The prima facie case in a failure to hire
context is itself a multi-step process, consisting of four
elements. First, the plaintiff must establish that she
belongs to the protected group. Second, she must show that
she was qualified for the employment she sought. Third, she
must demonstrate she was denied employment. And fourth, she
must prove that a person with equal or inferior
qualifications was hired. Id. at 802. Typically, as
in this case, the first and third elements are undisputed:
Judy Colman is female and she was denied the employment she
sought as head coach of the girls' lacrosse team.
issue of qualifications in steps two and four is at the heart
of this part of the analysis. The question of Ms.
Colman's qualifications as well as her qualifications
relative to Mr. Borrosh's are vigorously contested. For
the reasons that follow, the Court finds, at this juncture,
that these are jury issues because Ms. Colman has
presented sufficient evidence to support a prima facie case
on Counts I and II with respect to all Defendants except Mr.
Borrosh ( see infra note 23).
Prima facie case - Qualifications
Ms. Colman's qualifications
Colman's credentials to coach girls' lacrosse come
from a variety of sources. First, she has a Bachelor of
Science in recreational leadership from Ithaca College. (ECF
No. 25-11 at 3). She holds all of the certifications that PHS
required to coach -- a Rhode Island Department of Education
Coaching Certificate, a coach certification from the National
Federation of State High School Associations (NFHS), and
first-aid and CPR certification. (ECF No. 25-1 at 15). In
addition, at the time she applied for the position at issue,
she had completed all work required to receive the United
States Women's Lacrosse Level 1 Coach's
Certificate. ( Id. ). Second, she
performed well as a volunteer assistant coach of the
girls' lacrosse team during the season preceding the 2010
vacancy. (ECF No. 25-2 at 9). In fact, former Coach McGuirl
described Ms. Colman as having helpful attributes during her
year assisting him conducting drills and handling logistics.
He had planned on Ms. Colman returning for the next season. (
Id. ). Third, she has been head coach of the
successful girls' tennis team at PHS since 2008,
stewarding the varsity team to the division championship.
(ECF No. 25-11 at 3, 14). Finally, she was the very involved
parent of two talented girls' lacrosse
players, which had, in Coach McGuirl's opinion, given her
both knowledge of the game and of the needs of girls playing