Matthieu W. Yangambi
v.
Providence School Board et al.
Providence
County Superior Court PC 04-6001, Patricia
A. Hurst Associate Justice
For
Plaintiff: Gina A. DiCenso, Esq. V. Edward Formisano, Esq.
Nicole J. Policastro, Esq. Michael D. Pushee, Esq.
For
Defendants: Kevin F. McHugh, Esq. Megan K. DiSanto, Esq.
Kathryn M. Sabatini, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Indeglia, JJ.
OPINION
Maureen McKenna Goldberg, Associate Justice
The
parties in this case are before the Supreme Court on
cross-appeals from a Superior Court judgment following a jury
verdict in favor of the plaintiff, Matthieu W. Yangambi
(plaintiff or Dr. Yangambi), on a single claim of employment
discrimination based on national origin. The defendants, the
Providence School Board and the City of Providence
(Providence or defendants), have challenged the Superior
Court justice's jury instructions on several grounds and
argue that the Superior Court justice: (1) applied an
incorrect law concerning evidentiary presumptions in an
employment discrimination case; (2) improperly weighed the
evidence; and (3) invaded the province of the jury. The
defendants also contend that the Superior Court justice erred
when she vacated the jury's finding that the plaintiff
failed to mitigate his damages. The plaintiff's
cross-appeal arises from the denial of a motion for judgment
as a matter of law on a separate count in the complaint that
also alleged employment discrimination. The plaintiff
contends that the defendants failed to satisfy their burden
of production, they did not articulate a nondiscriminatory
reason for the adverse employment decision, and therefore,
the plaintiff was entitled to judgment as a matter of law.
For the reasons discussed herein, all appeals are denied and
dismissed, and the judgment of the Superior Court is
affirmed.
Facts
and Travel
Doctor
Yangambi, who is of African descent, immigrated to this
country from the Democratic Republic of the Congo (the Congo)
and, the evidence disclosed, speaks English with a pronounced
French accent. He graduated with a Bachelor's degree in
biomedical sciences from the University of Kinshasa in the
Congo. He was a full-time high school teacher in the Congo
for two years and also taught high school science part-time
in Gabon, a neighboring country, for three years. While in
Gabon, Dr. Yangambi also worked in a supervisory capacity at
a nephrology department for ten years, working with nursing
students as they transitioned from academia to practice.
Doctor Yangambi immigrated to the United States in February
1990.
In
1992, Dr. Yangambi began his teaching career with Providence
as a substitute physics teacher at Hope High
School.[1] In 1993, he was hired as a full-time
biology and physiology teacher at Mount Pleasant High School
(Mount Pleasant), where he currently is employed. In 1998,
Dr. Yangambi received his Master's degree in
administration from Providence College and his certification
to be a middle or high school principal. In 2006, he earned a
doctorate in educational leadership from Johnson & Wales
University.
During
the term of his employment, Dr. Yangambi applied for
approximately forty[2]positions within the Providence School
Department (the Department), but he was rejected every time.
In 2003, Dr. Yangambi filed a charge of discrimination with
the Rhode Island Commission for Human Rights (the
commission), claiming that Providence had failed to promote
him based on his national origin. On October 7, 2004, the
commission issued a right to sue notice; and, on November 5,
2004, Dr. Yangambi filed an employment discrimination suit,
charging that Providence violated the Fair Employment
Practices Act (FEPA) and the Rhode Island Civil Rights Act
(Civil Rights Act) by failing to promote him to numerous
administrative positions based on his national origin. In
November 2007, Dr. Yangambi filed an amended complaint,
averring that Providence had again failed to promote him
based not only on his national origin, [3]but also in
retaliation for his claims of employment discrimination. The
case was tried before a jury in March and April of
2014.[4]
This
appeal is confined to two of the positions that were not
awarded to Dr. Yangambi; each application was for an opening
as assistant principal at Mount Pleasant-the first, in 2002
(2002 Position) and the second, in 2004 (2004 Position).
2002
Position
In May
2002, an opening was announced for the 2002 Position; the
posting required that the applicant possess three years of
teaching experience and a certification by the Rhode Island
Department of Education (the Department of Education) for a
secondary principal. Doctor Yangambi, who met these
requirements, applied for the 2002 Position; however, he was
not interviewed, [5] nor was he notified that he did not meet
the minimum qualifications for the position. According to
Gail Hareld (Hareld), a human resources administrator for
Providence, applicants who met the minimum qualifications
generally were forwarded to the hiring committee, and those
who were not deemed qualified were notified by Providence. It
is not contested that, in 2002, Dr. Yangambi met the teaching
experience and requisite certification requirements
established by the Department of Education. Specifically, Dr.
Yangambi had approximately fifteen years of teaching
experience, ten years of supervisory experience in a hospital
setting, and had obtained a secondary principal certificate.
He had been at Mount Pleasant since 1993. Nonetheless, Dr.
Yangambi received neither an interview nor a rejection letter
from Providence. The defendant offered no explanation for
this circumstance.
The
position was awarded to John Craig (Craig). Craig testified
that, at the time of the posting, he was serving as acting
assistant principal at Mount Pleasant and that he previously
had served as an assistant principal in Johnston for
approximately one-and-a-half years. Craig had fourteen years
of teaching experience; and, in 1999, he received a
Master's degree in administration from Providence
College. He explained that he obtained his secondary
principal certification shortly after earning his
Master's degree. Specifically regarding the 2002
Position, Craig testified that, while working in Johnston, he
was encouraged to contact the principal at Mount Pleasant at
the time, Nancy Mullen (Principal Mullen), about an assistant
principal vacancy; however, he understood that "it would
only be an acting [position], and [by] taking that position
[he] would be taking a risk of not getting the [permanent]
position * * *." Although Craig testified at trial that
he was interviewed for the position, this testimony
conflicted with his deposition testimony in which he admitted
that he was not interviewed. Nonetheless, Craig could not
remember the names of anyone who conducted the interview but
was confident that Principal Mullen did not participate. He
recalled that the majority of members on the interview panel
were from the human resources department. Craig's
testimony that Principal Mullen did not participate in the
interview is in conflict with Providence's hiring
policies, as set forth by Hareld and other witnesses, and
that formed the basis of the defense in this case. That
policy required administrators from the particular school to
be involved in the interview process.[6]
Providence
failed to produce evidence about who, if anyone, including
Craig, was in fact interviewed in 2002, what name or names
were forwarded to the Superintendent, who were the members of
the interview committee, or how the candidates were ranked.
Further, despite the irrefutable evidence that Dr. Yangambi
met the qualifications for the 2002 Position, there was no
testimony or other evidence produced that explained why Dr.
Yangambi was not granted an interview for the 2002 Position.
Numerous
witnesses testified on behalf of Providence and offered
testimony about the general hiring procedures that were in
place in Providence. According to Hareld, [7] the procedure
required that an open position was to be posted-for a minimum
of ten days-setting forth the minimum qualifications
necessary for the position. Hareld testified that the names
of applicants who met the minimum qualifications would be
forwarded to the interview committee for an interview. The
interview committee was composed of a range of individuals,
depending on the type and location of the vacancy, and
chaired by a chairperson, usually an administrator from the
hiring school. Importantly, regardless of the position or the
location, a Providence human resources representative and an
equal employment opportunity (EEO) officer often served on
each interview committee. Hareld explained that the members
of the interview committee would pose questions, which were
determined in advance, to each applicant and rate the
response on a scale of one to five. After the scores were
tallied, the names of the top two or three applicants were
recommended to the Superintendent, who would forward his or
her recommendation to Providence. Providence would then vote
on whether to award the position to the recommended
applicant.
Joyce
O'Connor (O'Connor), Providence's EEO officer
from 1986 to 2012, [8] also testified and corroborated
Hareld's testimony about Providence's hiring
practices.[9] Although O'Connor testified that one
of her responsibilities as an EEO officer was "to see
that basically the candidates were treated fairly during the
interview * * *, " she too could not offer any testimony
about the 2002 interview committee, who was interviewed, or
who was recommended to the Superintendent. Providence failed
to produce any ranking sheets or other documentary evidence
and was unable to identify the other candidates, if any, who
were interviewed for the position. In the fall of 2003, Dr.
Yangambi filed a complaint with the commission.
2004
Position
While
Dr. Yangambi's complaint was pending before the
commission, he applied for the 2004 Position of Assistant
Principal at Mount Pleasant. This position included a closing
date of April 2, 2004, with which Providence did not comply.
Doctor Yangambi was not interviewed until June, more than two
months after the expiration of the interview period and,
notably, after the successful candidate became qualified.
Providence's internal procedures required that interviews
be held within ten days of the closing date of the posting.
Hareld testified that "[i]t's not that [Providence
doesn't] follow the procedure[, ]" but that it is
dependent "upon the availability of the applicants as
well as the people on the interview committee." During
this interregnum, the candidate, Michael Sollitto (Sollitto),
who was awarded the position, who did not meet the minimum
qualifications at the closing date, acquired the requisite
certificates. Doctor Yangambi testified that although he met
the minimum qualifications for the position-the same
qualifications set forth for the 2002 Position-he was not
awarded the position. Instead, Sollitto, a Mount Pleasant
social studies teacher, who did not meet the minimum
qualifications at the time he applied, was appointed.
Sollitto testified that he first began working for Providence
at Mount Pleasant in 1995 as a long-term substitute teacher.
He was hired as a permanent teacher at Roger Williams Middle
School in 1998 and transferred to Mount Pleasant in 1999. On
April 2, 2004, when the application period closed, Sollitto
had not yet obtained a Master's degree in administration
and certification as a secondary principal. Sollitto clearly
benefited from the fact that the interviews were postponed
for at least two months. In April 2004, Sollitto was serving
an internship at Mount Pleasant as part of his Master's
degree curriculum requirements. He did not become
credentialed until May 2004. Providence's departure from
the internal promotional procedures favored Sollitto.
Again,
Providence failed to produce any ranking sheets for the 2004
Position. There was no evidence about who was interviewed,
save for Dr. Yangambi and Sollitto, or the number of
candidates who were recommended to the Superintendent.
O'Connor, who was the EEO officer, testified that she
served on the interview committee for the 2004 Position but
could recall almost nothing else and had no notes or
documents. She could not recall where Dr. Yangambi ranked
"unless [she] had seen the sheets"-which, of
course, were not produced. According to O'Connor, she did
not know that Dr. Yangambi was from the Congo; but she was
also certain that the interview committee did not discuss Dr.
Yangambi's national origin during the interview. Save for
O'Connor's testimony, which generously can be
characterized as stating what she did not know and what the
committee did not do, Providence failed to produce any
evidence about what did occur; nor did Providence proffer any
reason why Sollitto was selected for the 2004 Position over
Dr. Yangambi.[10]
Motion
for Judgment as a Matter of Law
At the
close of the evidence, plaintiff moved for judgment as a
matter of law for the counts relating to the 2002 Position
and the 2004 Position, in accordance with Rule 50 of the
Superior Court Rules of Civil Procedure. The basis for the
Rule 50 motion centered on defendants' failure to meet
their burden of production and to articulate a legitimate,
nondiscriminatory reason for not promoting Dr. Yangambi. The
Superior Court justice denied the Rule 50 motion, opining
that:
"if there [was] no evidence at all upon which the jury
could conclude that there [was] a non-discriminatory reason
for the employment action, then plaintiff would be entitled
to judgment [as a matter of law]. However, in this case,
there was at least some evidence that the candidates were
ranked and that the highest ranking candidates were the ones
who were recommended to the Superintendent. * * * For [the
2002 Position] there also [was] evidence that * * * Craig had
better qualifications. * * * [A]lthough the defendant[s] did
not articulate clear and specific non-discriminatory reasons
for [their] failure to promote plaintiff to [the 2002
Position and 2004 Position], it did come forward with
evidence to create questions of fact about the elements of
plaintiff's claim for intentional discrimination.
"The only thing defendants' failure to articulate a
clear and specific non-discriminatory reason for its failure
to promote did- the only thing that did was to give plaintiff
the benefit of a rebuttable presumption. It didn't
entitle plaintiff to judgment as a matter of law."
Recognizing that many of the cases presented by the parties
arose in the context of summary judgment, the Superior Court
justice held that, at trial, a plaintiff always bears the
burden of persuasion in employment discrimination cases. The
Superior Court justice also declared that a rebuttable
presumption of discrimination arises when a plaintiff proves
his or her prima facie case-that is "(1) he is
a member of the protected class[;] * * * (2) he applied for
an open position; (3) he was not selected; and (4) the
employer 'filled the position by hiring another
individual with similar qualifications.'"
McGarry v. Pielech, 47 A.3d 271, 280 (R.I. 2012)
(quoting Casey v. Town of Portsmouth, 861 A.2d 1032,
1037 (R.I. 2004)).
The
plaintiff also moved for judgment as a matter of law on
defendants' affirmative defense of failure to mitigate
damages, contending that this defense hinged on Dr.
Yangambi's failure to apply to comparable positions
outside of the City of Providence, even though defendants did
not present any evidence that comparable positions actually
existed. The Superior Court justice reserved on the motion,
but declared that she "would be surprised if the jury
came back and said [that plaintiff] failed to mitigate
[damages]."
Jury
Instructions
The
burden-shifting paradigm set forth by the United States
Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) was the subject of great debate in this
case. The defendants vigorously opposed the Superior Court
justice's conclusion, at the close of the evidence, that
defendants were required to produce direct evidence of a
nondiscriminatory reason for their failure to promote
plaintiff to the 2002 Position and the 2004 Position.
Significantly, with respect to several counts in this case,
defendants did produce evidence of a nondiscriminatory reason
for their adverse employment decision. The Superior Court
justice concluded that defendants failed to meet this burden
only with respect to the 2002 Position and the 2004 Position.
The
defendants objected to the Superior Court justice's
proposed jury instruction on the law of presumptions as
applied to the 2002 Position and the 2004 Position-the only
counts to which the Superior Court justice applied the
burden-shifting paradigm-arguing that the Superior Court
justice essentially took the issue away from the
jury.[11] Over this objection, the Superior Court
justice gave a lengthy and detailed instruction to the jury
on the 2002 Position and the 2004 Position and the law of
presumptions. Because we are required to review jury
instructions in their entirety and do not consider a selected
portion or sentence, see State v. Long, 61 A.3d 439,
445 (R.I. 2013), we set forth the instruction in its
entirety:
"Presumptions are rules of law designed to assist
parties to a lawsuit in proving their claims. Presumptions
are not evidence. They are tools for proving a specific fact
or facts. A presumption is an assumption of fact that the law
requires the jury to make so long as certain underlying facts
are proved to be true. In other words, if certain facts and
circumstances have been proved to be true, then the law
requires the jury to assume that certain other facts also
have been proved to be true. The law uses presumptions to
make it easier to prove facts that experience and logic tell
us are most probably true but which are often difficult to
demonstrate with direct evidence.
"Here's a simple example: Pretend there's a case
in which the parties dispute the date on which a letter was
sent. Rhode Island has a state law that requires the jury to
assume that the letter was deposited with the post office on
the same date as appears in the postmark. Once the underlying
facts are proved; that is, that the letter has a certain
postmark and that the postmark bears, say, yesterday's
date, then the jury must assume that the letter was, indeed,
deposited with the post office yesterday. The law requires
the jury to assume this fact until the party against whom the
presumption operates comes forward with opposing evidence to
refute or rebut that assumed fact[, ] thereby overcoming or
negating the presumption.
"A presumption may be rebutted; that is, negated by
contrary evidence. If the jury finds that evidence refuting
the assumed fact has been produced during the trial, then the
presumption has been rebutted. The presumption ceases to
operate and no longer has any effect. As a result, the party
who has the burden of proving the fact or facts in question
must now prove those facts by the greater weight of the
evidence and cannot rely on the help of the presumption. A
party relying upon the benefit of a presumption can do so
only until there is contrary evidence which renders the
presumption inoperable.
"With respect to the [2002 Position and the 2004
Position] and the discrimination claims, [Dr.] Yangambi
enjoys the benefit of a presumption. In a failure-to-promote
discrimination claim, once the employee establishes that, 1,
he was qualified for a promotion; 2, he was rejected despite
his qualifications; and, 3, the position remained open or was
filled by someone of a different national origin with similar
or lesser qualifications, or the position remained open and
the employer continued to seek applications from persons of
similar qualifications, the jury is required to assume that
the employer's failure to promote the employee was
motivated, at least in part, by discrimination. If the
employee succeeds in proving these first three elements of
his claim, a rebuttable presumption of intentional
discrimination arises and the burden shifts to the employer
to show a legitimate, non-discriminatory reason for its
employment action. Although the employer need do no more than
demonstrate a reason which, taken as true, would justify a
conclusion that its employment decision was based on a
non-discriminatory motive, the law also expects the employer
to clearly and specifically articulate its reasons. In other
words, the employer is expected to clearly set forth the
reasons for the employee's rejection. Doing so frames the
factual issue with sufficient clarity so that the employee
will have a full opportunity to demonstrate * * * that the
employer's articulated reasons for failing to promote him
[were] a mere pretext or ploy. Therefore, if an employer does
not articulate a clear and specific explanation for the
employment decision, the employee is afforded the benefit of
a presumption and the jury is required to assume the
employment decision was the result of intentional
discrimination.
"In this case, [Providence] articulated clear and
specific reasons for not promoting [Dr.] Yangambi to the
positions identified in Joint Exhibits 3, 4, 7, 9 and 10. For
example, one witness testified that she participated in [Dr.]
Yangambi's interview and that [Dr.] Yangambi's scores
were low. Because [Providence] articulated a clear and
specific reason for its action, [Dr.] Yangambi is not
entitled to the benefit of any presumption of discrimination.
On the other hand, [Providence] failed to clearly and
specifically articulate its reasons for not promoting [Dr.]
Yangambi to the [2002 and 2004 Positions]. Therefore, with
respect to those positions only-those two positions only, the
jury is required to assume [Providence's] failure to
promote [Dr.] Yangambi was motivated, at least in part, by
intentional discrimination unless the jury finds
there is contrary or opposing evidence that refutes this
presumption. In this way, the presumption assists [Dr.]
Yangambi with his ultimate burden of persuading the jury
that, with respect to the [2002 and 2004 Positions], he has
proved all of the elements of his claim of intentional
discrimination by a fair preponderance of the evidence.
Importantly, however, if the jury finds there is contrary or
opposing evidence to refute this presumption of intentional
discrimination, [Dr.] Yangambi loses the benefit of the
presumption and the jury can no longer assume intentional
discrimination.
"* * *
"As in most Court cases, the law places the burden of
proof on a person who is making a claim. All that means is
that every person making a claim carries the obligation or
responsibility of proving that claim. This is founded in
common sense. Someone who is advancing a proposition has the
burden of sustaining its validity. Here, the plaintiff is
advancing a proposition concerning the defendant's
conduct and the resulting harm done to plaintiff. Therefore,
plaintiff must produce evidence that, when considered in
light of all of the other facts proved at trial, ...