Yangambi v. Providence School Board

         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, ...