Rosenbaum v. Board of Trustees ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LEONARD L. ROSENBAUM,
Plaintiff-Appellant,
v.
THE BOARD OF TRUSTEES OF
MONTGOMERY COMMUNITY COLLEGE;
THOMAS M. LOGAN, JR., personally;
No. 98-1773
ROBERT E. PARILLA, Dr., personally;
ANTOINETTE P. HASTINGS, Dr.,
personally; FLOYD F. CUMBERBATCH,
Dr., personally; FRANK J. TUSA, Dr.,
personally; ROBERT G. KELLER, JR.,
personally,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
J. Frederick Motz, Chief District Judge.
(CA-97-3540-JFM, CA-95-1959-JFM)
Submitted: February 24, 1999
Decided: March 19, 1999
Before HAMILTON and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Craig L. Parshall, LAW OFFICE OF CRAIG L. PARSHALL, Freder-
icksburg, Virginia, for Appellant. Charles W. Thompson, Jr., County
Attorney, Karen L. Federman Henry, Principal Counsel for Appeals,
Rockville, Maryland; Darrell R. VanDeusen, Clifford B. Geiger,
KOLLMAN & SHEEHAN, P.A., Baltimore, Maryland; Joan I. Gor-
don, Office of the General Counsel, MONTGOMERY COMMU-
NITY COLLEGE, Rockville, Maryland, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM
Leonard L. Rosenbaum appeals from the district court's order
granting summary judgment in favor of Defendants in Rosenbaum's
employment discrimination action filed under 42 U.S.C.A. §§ 1981,
1983 (West 1994 & Supp. 1998); Title VII of the Civil Rights Act of
1964, 42 U.S.C.A. §§ 2000e - 2000e-17 (West 1994 & Supp. 1998);
and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111- 12117 (1994). Finding no error, we affirm.
Rosenbaum is a tenured member of the faculty at Montgomery
College in Rockville, Maryland, where he has been employed since
1967. He is a professor of psychology and served as chair of the psy-
chology department from 1969 until 1980. Thereafter, he was
removed from the chairmanship because of the dissatisfaction of
those within his department. Since that time, Rosenbaum's relation-
ship with the College and a number of its administrators has been
marked by a series of conflicts. Rosenbaum traces the genesis of these
difficulties to 1978, when he alleges that he was instructed to stop hir-
ing Jewish and African-American faculty members. In 1982, Rosen-
baum filed a complaint against Montgomery College with the Equal
Employment Opportunity Commission (EEOC) alleging religious and
sex discrimination (Rosenbaum is a member of the Jewish faith). The
EEOC determined that the allegations lacked credibility and issued
Rosenbaum a right-to-sue letter.
2
Beginning in the Fall of 1990 and continuing through the Summer
of 1993, Rosenbaum was unable to perform his duties as a professor
during a series of lengthy absences resulting from a respiratory illness.1
In 1993, Rosenbaum filed a second complaint with the EEOC alleg-
ing retaliation by the College for his 1982 complaint because of
administrative decisions the College had made regarding Rosen-
baum's leave status. This complaint was dismissed by the EEOC in
March 1995 with another right-to-sue letter, and Rosenbaum filed the
instant action.2 Since that time, Rosenbaum has filed a third EEOC
complaint which was dismissed because of the pending litigation.
Rosenbaum filed an identical suit in the Maryland state court; that
action has been removed to federal court and consolidated with this
matter.
The district court dismissed some of Rosenbaum's claims and
granted him leave to amend his complaint.3 Rosenbaum filed an
amended complaint and Defendants moved for summary judgment on
the remaining claims. The court construed Rosenbaum's remaining
claims as: (1) a Title VII claim against the College for religious dis-
crimination, unlawful discrimination based on Rosenbaum's opposi-
tion to the College's allegedly discriminatory practices, and
_________________________________________________________________
1 Rosenbaum took sixteen days of paid sick leave from 11/08/90-
12/04/90. He was granted eighty hours of advance sick leave on
03/28/91. He took sabbatical leave for the entire Spring 1991 semester.
Rosenbaum was assigned to teach two Summer 1991 courses but indi-
cated that he was unable to do so. He was granted twenty-four hours of
advance sick leave for the Fall 1991 semester, and forty-eight hours of
advance sick leave for the Spring 1992 semester. He was granted short
term disability leave on 03/16/92, and he was absent from the College
until 05/14/92. Rosenbaum was granted ten days of advance sick leave
on 11/18/92. Rosenbaum was granted short term disability for the period
10/28/92 through 12/18/92. He was granted disability from 01/22/93
through 03/26/93.
2 Rosenbaum filed his complaint pro se. However, he is represented by
counsel in this court.
3 The dismissed claims included: (1) claims filed against the College
under 42 U.S. §§ 1981, 1983 for money damages; (2) claims against the
individual defendants in their official capacity under § 1983; and (3)
claims against the individual defendants under the ADA. Rosenbaum
does not challenge this dismissal on appeal.
3
retaliation for Rosenbaum's EEOC filings; (2) a claim of racial dis-
crimination against all Defendants under 42 U.S.C.A.§§ 1981, 1983;
and (3) a claim against the College for discrimination in violation of
the ADA. The court granted summary judgment on all claims for the
Defendants, and Rosenbaum timely appealed.
We review a grant of summary judgment de novo and affirm only
if the record reveals no genuine issue of material fact. See Shaw v.
Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Religious discrimination
claims fall into two general categories: disparate treatment based on
religion and failure to accommodate religious needs. See Chalmers v.
Tulon Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996), cert.
denied, ___ U.S. ___, 118 S.Ct. 58 (1997). Disparate treatment claims
are analyzed under the burden shifting framework of McDonnell
Douglass Corp. v. Green, 411 U.S. 792 (1973), while accommodation
claims are reviewed to determine, among other things, whether the
employer can accommodate the employee's needs without undue
hardship. See 42 U.S.C. § 2000(j); Chalmers, 101 F.3d at 1019.
As an initial matter, we have noted that not all employment deci-
sions having an effect on the employer/employee relationship are
meant to fall within the proscriptions of Title VII. See Reinhold v.
Virginia, 151 F.3d 172, 174-75 (4th Cir. 1998); Page v. Bolger, 645
F.2d 227, 233 (4th Cir. 1981). Rather, a court's focus should be lim-
ited to those "ultimate employment decisions such as hiring, granting
leave, discharging, promoting, and compensating." Id. In accordance
with this policy, the district court properly reduced Rosenbaum's Title
VII claims to: (1) the College's handling of Rosenbaum's sick leave
request and his return to work; (2) the College's denial of pay for
three days in December 1993; (3) the College's refusal to accommo-
date his religious schedule; and (4) the College's deduction of pay for
his absences during Professional Week in 1994.4 Nevertheless,
_________________________________________________________________
4 Rosenbaum's remaining claims included: the College's refusal to
allow Rosenbaum to tape notices to his office door, the College's alleged
practice of assigning "non-Caucasian" students to Rosenbaum's classes,
and the College's assignment of Rosenbaum to classrooms he deemed
inferior. As the district court correctly concluded, these claims were not
adverse employment decisions for purposes of Title VII. See Page, 645
F.2d at 233. Cf. Burlington Indus., Inc. v. Ellerth, ___ U.S. ___, 66
4
Rosenbaum fails to establish a prima facie case for any of his four
claims under Title VII.
Turning then to the McDonnell Douglas analysis, in order to estab-
lish a prima facie case of discrimination, Rosenbaum must prove "a
set of facts which would enable the fact-finder to conclude, in the
absence of any further explanation, that it is more likely than not that
the adverse employment action was the product of discrimination."
See Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55,
58 (4th Cir. 1995) (stating the standard adopted in Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). In the reli-
gious discrimination context, the employee's prima facie case may
consist of a showing that "the employer treated the employee more
harshly than other employees of a different religion, or no religion,
who had engaged in similar conduct." Chalmers , 101 F.3d at 1017.
If Rosenbaum establishes his prima facie case, the burden then shifts
to the College to articulate some legitimate, nondiscriminatory reason
for the employee's complained of action. If the defendant discharges
its burden of production, the plaintiff must be afforded a fair opportu-
nity to show that the reason articulated by the defendant is pretextual.
See, e.g., Ennis, 53 F.3d at 58. The burden of persuasion remains with
the plaintiff at all times. See St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 507 (1993).
Applying this framework to Rosenbaum's disparate treatment
claims, he simply did not produce any evidence that the College
treated him differently than other similarly situated employees in
_________________________________________________________________
U.S.L.W. 4634, 4639 (U.S. June 26, 1998) (No. 97-569) (holding, in the
sexual harassment context, that employee must show a"tangible employ-
ment action . . . such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a sig-
nificant change in benefits" to state a claim). The court further held that,
taken in the aggregate, the claims did not amount to a hostile work envi-
ronment. Because this conduct was not "sufficiently severe or pervasive
to alter the conditions of [Rosenbaum's] employment," we agree that
they did not, either singly or in combination, create a hostile work envi-
ronment. See Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57, 67
(1986) (internal quotation omitted).
5
regard to the contested decisions. See Chalmers , 101 F.3d at 1017. In
fact, the evidence before the court indicated that the College had fol-
lowed its procedures scrupulously, only deviating from them as a
favorable accommodation to Rosenbaum. Specifically, Rosenbaum
claimed that the College improperly denied him pay for three days of
work in December 1992. A review of the facts reveals that the deci-
sion was based on a well founded belief that Rosenbaum was attempt-
ing to manipulate the College's leave system. Rosenbaum had
returned to his position after an extended absence only after the con-
clusion of classes and after any useful work could be assigned to him.
Furthermore, he failed to report to any superior regarding his return
to work until the final day of the working semester (several days after
he says he returned). It cannot be said that the Defendants' action in
refusing to grant a paid status for the upcoming holiday recess was
the product of discrimination. Because Rosenbaum did not establish
a prima facie case on this claim, the district court properly denied
relief.
Similarly, in regard to Rosenbaum's claim that the sick leave pol-
icy was not administered fairly in his case, the evidence shows other-
wise. Despite the unusually high number of requests for leave and
disability, the requests were recommended for approval by Rosen-
baum's supervising dean on all but one occasion. On the one occasion
when a leave request was not recommended for approval, the College
chose to grant the leave nevertheless. Again, Rosenbaum's failure to
establish a prima facie case renders this claim meritless.
Rosenbaum raised two reasonable accommodation claims. First, he
claimed the College discriminated against him by refusing to grant
him leave status for two days he was absent in observance of Rosh
Hashanah in 1994. However, Rosenbaum never requested leave status
either before or after his absence. Therefore, the College's decision
not to pay Rosenbaum for his two day absence was not discrimina-
tory. See Chalmers, 101 F.3d at 1017-19 (holding that to establish a
prima facie religious accommodation claim, employee must notify
employer of need for accommodation).
Rosenbaum's next claim suggested that the College had failed to
make reasonable accommodations in his work schedule to permit him
to honor his religious holidays. However, as the district court noted,
6
even Rosenbaum's own affidavits fail to support his claims. Like all
employees, Rosenbaum was granted three days of paid leave which
could be used for religious observances. Further, there was no way to
schedule Rosenbaum's classes consistent with the College's course
requirements without occasionally conflicting with religious obser-
vances. Moreover, the record indicates that the school made efforts to
accommodate Rosenbaum's religious beliefs, including scheduling
him to teach four days a week instead of five. See Chalmers, 101 F.3d
at 1018.
Rosenbaum's final claim under Title VII alleged retaliation for his
1982 EEOC complaint. However, to prevail on a retaliatory discrimi-
nation claim, the plaintiff must show a causal nexus between the orig-
inal complaint and the actions of the defendant. See Carter v. Ball, 33
F.3d 450, 460 (4th Cir. 1994). Rosenbaum completely fails to show
this nexus because, as noted above, he can not show that he has been
treated differently from other employees.
Rosenbaum raises the same allegations under 42 U.S.C. §§ 1981and 1983 that he raised under Title VII. Our analysis with respect to
Title VII governs these claims as well. We have held that Title VII
is not an exclusive remedy for employment discrimination by a public
entity. See Keller v. Prince George's County, 827 F.2d 952, 954 (4th
Cir. 1987). A state employee may still bring a Fourteenth Amendment
claim under 42 U.S.C. § 1983 to challenge discriminatory employ-
ment decisions. See Holder v. City of Raleigh , 867 F.2d 823, 828 (4th
Cir. 1989). To prevail on these claims, Rosenbaum must show that the
Defendants discriminated against him because of his Jewish ethnicity.
See St. Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987). We
find no evidence to support Rosenbaum's claim. Rosenbaum provided
only conclusory, generalized statements to support his section 1981
and 1983 claims. Defendants provided evidence that the current chair
of Rosenbaum's department is an Orthodox Jewish Rabbi who
believes there is no basis for Rosenbaum's claims. Furthermore, affi-
davits of other Jewish professors at the College reinforced the notion
that the Defendants have not engaged in discriminatory practices
against those of the Jewish faith. Absent evidence establishing inten-
tional discrimination, the district court properly granted summary
judgment for the Defendants. See General Bldg. Contractors Ass'n v.
Pennsylvania, 458 U.S. 375, 391 (1982).
7
Finally, we note that Rosenbaum abandons his claims under the
ADA on appeal. Therefore, we affirm the decision of the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED
8