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Colman v. Faucher

United States District Court, D. Rhode Island

September 11, 2015

JUDY B. COLMAN, et al., Plaintiffs,
DAVID P. FAUCHER, et al., Defendants

         As Corrected October 15, 2015.

Page 488

          For Judy B. Colman, Hadley Colman, Plaintiff: Chip Muller, LEAD ATTORNEY, Muller Law, LLC, Providence, RI.

         For 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, Providence, RI.

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         John J. McConnell, Jr., United States District Judge.

         Judy B. Colman and her daughter, Hadley Colman, brought this action[1] 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,[2] 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).[3] 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. § 1681.

         Defendants 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

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cases involving women plaintiffs." Schneider, supra, at 710.


         Summary Judgment Standard

         Rule 56 of the Federal Rules of Civil Procedure governs the summary judgment process. It provides,

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.

         By the 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 (1986).

         Summary judgment is a drastic remedy[4] 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).

         In this 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 and II.

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         Factual Background

         In 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.[5] A.D. Lunney informally offered the position to Mr. Borrosh, on the spot. (ECF No. 25-3 at 23).

         PHS 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).

         Judy 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).

         Instead, 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).[6] 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).[7]


         Plaintiffs' Claims

         A. Counts I and II: Gender Discrimination [8]

         Where there is no direct evidence of discriminatory animus, the protocol for proving a disparate treatment[9] claim of intentional gender discrimination through indirect evidence is settled and familiar,

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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.

         Whether 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.

         The 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[10] 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).

         1. Prima facie case - Qualifications

         a. Ms. Colman's qualifications

         Ms. 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.[11] ( 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

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players, which had, in Coach McGuirl's opinion, given her both knowledge of the game and of the needs of girls playing ...

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