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City of Providence v. Rhode Island Commission for Human Rights

Superior Court of Rhode Island, Providence

July 25, 2017


          For Plaintiff: Charles A. Ruggerio, Esq. Megan K. DiSanto, Esq. Kathryn M. Sabatini, Esq.

          For Defendant: Francis A. Gaschen, Esq. Marissa Janton, Esq.


          VAN COUYGHEN, J.

         The Appellant, the City of Providence (Providence or Appellant), appeals from a decision of the Rhode Island Commission for Human Rights (the Commission), which found that Appellant unlawfully retaliated against Matthieu Yangambi (Complainant) for engaging in conduct protected by G.L. 1956 § 28-5-7, the Fair Employment Practices Act (FEPA), by not appointing him to four acting assistant principal positions within the Providence school system. Jurisdiction in the instant matter is pursuant to G.L. 1956 § 42-35-15.

         I Facts and Travel

         A Factual Background

         This case involves Complainant's claim that he was retaliated against when he was not appointed to four acting assistant principal positions allegedly because he had filed previous claims against Appellant with the Commission. The Complainant has worked for Appellant since 1992 and has been a science teacher at Mount Pleasant High School in Providence, Rhode Island since 1993. The Complainant, an African-American man, is originally from the Democratic Republic of the Congo where he began his educational journey. While there, Complainant received a B.S. Degree in Biomedical Sciences from the University of Kinshasa. Complainant later received a Master's Degree in Education, Secondary Administration from Providence College and a Doctorate Degree in Education from Johnson and Wales University concentrating in Educational Leadership, Curriculum and Instruction, Teacher Training, Secondary School Science, and Education for English Language Learners.

         Over the course of his employment with Appellant, Complainant applied for a number of different administrative positions and did not receive them. As a result, and prior to the actions relevant here, Complainant filed a charge of discrimination with the Commission against Appellant. (Tr. 15-16, Jan. 9, 2013 (Tr. Vol. 1)). Furthermore, Complainant subsequently removed that charge to the Superior Court. Id.[1] However, pertinent to the appeal here, Complainant sought an additional nine positions with Appellant from 2009-2010. One of those positions was for the Director of English Language Learners, three were acting principal positions, and five were acting assistant principal positions. The Complainant was not selected for any of those positions.

         On April 2, 2010, Complainant filed another complaint with the Commission alleging that Appellant discriminated against him by denying him the above-mentioned promotions because of his race, color, and ancestral origin and in retaliation for protected conduct, in violation of § 28-5-7. The April 2, 2010 complaint forms the factual basis for the within appeal.

         The Complainant represented himself throughout the proceedings before the Commission. The Preliminary Investigating Commissioner-Camille Vella-Wilkinson-found that there was probable cause to believe that the Appellant violated the provisions of § 28-5-7. (Decision and Order 1, Oct. 16, 2013 (Decision)). Ultimately, hearings were held before Commissioner John B. Susa on January 9 and 10, 2013. After the hearings, the parties submitted memoranda for further consideration. The procedural regulations applicable to the Commission required that the Hearing Officer be joined by two other Commissioners. R.I. Admin. Code 38-1-17:12.02(a). All three Commissioners reviewed the record and post-hearing submissions in order to decide the case. On October 16, 2013, the three Commissioners unanimously concluded that Providence did not discriminate against Complainant regarding any of the positions in contention on the basis of race or national origin. However, by at 2-1 vote with the presiding Hearing Officer dissenting, the Commission concluded that Providence retaliated against Complainant for his previous pursuit of discrimination claims by failing to appoint him to four of the nine contested positions. The four positions-all acting assistant principal positions-were

(1) Acting Assistant Principal, Oliver Hazard Perry Middle School, filled by Cynthia Robles, April 4, 2009.
(2) Acting Assistant Principal, Mount Pleasant High School, filled by Paul Rao, March 1, 2010.
(3) Acting Assistant Principal, Mount Pleasant High School, filled by Dina Cerra, March 8, 2010.
(4) Acting Assistant Principal, Providence Academy of International Studies, filled by Charles Moreau, March 8, 2010.

         Complainant did not appeal the Commission's decision regarding its finding that Appellant did not discriminate against him based upon race or national origin. Therefore, the only issues before this Court on appeal concern Complainant's claims of retaliation regarding the four above-referenced acting assistant principal positions.

         B The Hiring Process

         According to the record and the Commission's findings, the process Appellant used to fill "acting" positions was ad hoc and designed to fill unexpected vacancies within the school department quickly.[2] (Decision 3-4.) There were no job postings for these positions nor was there an application process. Id. at 3.[3] Instead, Appellant considered various factors when filling an "acting" administrative position. The factors included eligibility, the needs of the position, the specifics of the school where the vacancy is located, familiarity with the building and students, recommendations, and taking care to not create other academic vacancies that are hard to fill. Id. at 5; (Tr. Vol. 1 at 141). With regard to acting assistant principal positions, Providence looked to individuals to fill the disciplinary needs of the position. (Tr. Vol. 1 at 103). This is because the primary role of an assistant principal is student discipline. Id. at 122. Therefore, Providence sought individuals for acting assistant principal positions who were respected in the school and had influence over student behavior. Id. at 104. Furthermore, as stated above, when filling these positions, Providence would seek to appoint someone that would be the least disruptive to academic continuity. Id. at 122.

         During the time in which the acting positions at issue in this appeal were filled, Edmund Miley worked for Appellant to provide leadership support and development services.[4] (Decision 3). Mr. Miley testified during the hearing that when an assistant principal position unexpectedly becomes vacant, the principal calls his or her supervisor, the Executive Director, and asks that an acting assistant principal be appointed. (Tr. Vol. 1 at 148-49). According to Mr. Miley, the principal usually provides the name of someone who is qualified, interested in being an administrator, and "has some credibility" with the principal. Id.

         In its Decision, the Commission found that Providence's description of the method used to appoint acting administrators was unclear and that "[Providence]'s process for filling Acting Assistant Principal positions, as set forth by [its] witnesses, has no objective guidelines and no clear line of authority." (Decision 18.) Namely, the Commission believed that it was "unclear who initiates the recommendations and who is under consideration for the positions" because the testimony on the subject was conflicting and imprecise. Id.

         C The Commission's Decision

         With respect to the four acting assistant principal positions at issue on this appeal, two Commissioners found that Complainant established a prima facie case of retaliation. (Decision 12-13.) Additionally, the two Commissioners found that Appellant failed to meet its burden of presenting legitimate, non-retaliatory reasons for not appointing Complainant to three out of the four of those positions.[5] According to the majority of the Commission, such failure by Appellant to produce legitimate, non-retaliatory reasons for appointing individuals other than Complainant to the three above-mentioned positions necessitated the conclusion that Appellant was motivated by retaliation.[6] Id. at 16-17. However, the third Commissioner, the Hearing Officer, dissented and found that Complainant had not satisfied his burden of proof with regard to retaliation. Id. at 22.

         However, the Commission found Appellant provided a non-retaliatory reason for its action for one of the four positions-the appointment of Paul Rao to acting assistant principal of Mount Pleasant High School. (Decision 18.) According to the Decision, Appellant showed that Mr. Rao was appointed acting assistant principal "because he had experience in the building, knew the school community, and was known and respected by the school community based in part on his leadership as a football coach." Id. However, the majority of the Commission ultimately found that the reasons given were "pretext for retaliation" based on the "strength of the Complainant's prima facie case of retaliation, the Complainant's clearly superior objective qualifications, the subjectivity of the [Appellant]'s process and the inconsistent and unclear testimony" of Providence's witnesses. Id. at 18-19. Accordingly, the majority of the Commissioners found that Appellant retaliated against Complainant "for opposing unlawful employment practices, filing charges of discrimination and filing and pursuing a court complaint alleging violation of the FEPA, with respect to the Acting Assistant Principal positions filled by Mr. Moreau, Mr. Rao, Ms. Robles and Ms. Cerra." Id. at 19.

         Subsequent to the Commission's Decision, Appellant timely filed the present appeal with this Court. The Appellant contends that the Commission's Decision is contrary to law because it misapplies the burden-shifting paradigm in employment retaliation cases and is based on factual findings that are clearly erroneous. Specifically, Appellant avers that the Commission erred in finding Complainant established a prima facie case of retaliation, and that Appellant did not meet its burden of production. Additionally, Appellant claims that the Commission erred by not requiring Complainant to bear the ultimate burden of proof on his claims of retaliation. Finally, Appellant argues ...

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