Session v. Anderson, et al., Civil Action No. 7:09cv138 (W.D. Va. June 21, 2010). Session, an African-American woman, was employed by the Montgomery County Public Schools since 1977, when she began as a Social Studies teacher. From 1977 through 2004, she was given only excellent evaluations. In September of 2004, Session was promoted to a supervisory position in the school system. In March of 2005, Anderson, another African-American woman, became the County School Superintendent.
Session alleges that, in June 2005, she was seated at her desk in the school board office speaking with her friend Brenda Brand, who is also African-American, when Anderson walked in. The women discussed hairdressers and hair styles and Anderson said to Session, “oh, you have that good hair,” to which Session angrily responded that Anderson should “watch it.” Although Anderson denied using the term, there was no dispute that the term “good hair” is, in this context, derogatory and offensive in that it implies that an African-American person is “not black enough.”
A second incident occurred the following month at a staff meeting. At the end of the meeting, Anderson asked the attendees, including Session, to bring a baby picture of themselves to the next meeting to play a guessing game in which staff members would guess whose baby picture was whose. Anderson then stated to the group that they may have to use fake photographs, because “some of us have more melanin in our skin than others.” Session believed that, as a light-skinned African-American woman, this comment was directed at her. She also asserts that the comment created an uncomfortable environment, and believed that it created unwanted attention from other staff members.
Session complained to the School Board about these two incidents. On November 15, 2005, the Board held a hearing to consider Session’s complaint and determined that it was “unfounded.” That same day, Anderson asked the Board to eliminate Session’s supervisor position and create a new position in its place. Session applied for this new position but was not granted an interview, and the Board ultimately hired someone else for the position.
In April of 2006, Anderson informed Session that she would be reassigned from her supervisory role to a teaching position and would take a pay cut. In July of 2006, Session received her first negative performance evaluation, and in August, Session was assigned to the Phoenix Center, an alternative education program for troubled students who have anti-social attitudes, display violent tendencies, or have been convicted of crimes. Session alleges that this reassignment was in retaliation for her internal complaint against Anderson, and would cost her over $100,000 in lost wages and benefits.
Session filed a charge of discrimination with the Equal Employment Opportunity Commission, complaining of retaliation, and the EEOC found reasonable cause to believe that the School Board had retaliated against her. Session then filed her complaint in federal court against Anderson and the School Board. The case against Anderson was dismissed and the Board asked the Court for summary judgment in its favor, arguing that under this set of facts it was entitled to win.
In order to make a case of retaliation under Title VII, the plaintiff has to prove that he or she engaged in some sort of protected conduct and that the employer took action against the employee because of it. “Protected conduct” in this sense includes the opposition of a practice that is made unlawful by Title VII of the Civil Rights Act of 1964, which covers employment discrimination on the basis of race, sex, and so on. “Opposition activity” is protected when it opposes an actual violation of Title VII, and also when it is in response to an employment practice that the employee reasonably believes is unlawful.
The plaintiff’s opposition thus must be founded on a belief, both reasonable and objective, that the employment practice is unlawful. In this case, the court referred back to other decisions in which “simple teasing, off-hand comments, and isolated incidents” did not amount to unlawful discrimination. Based in part on those decisions, the court held that Session could not have had a reasonable and objective belief that Anderson’s comments regarding “good hair” and “more melanin” amounted to a hostile work environment or that they violated Title VII. Because she could not show protected conduct, Session could not prove unlawful retaliation. The court entered judgment in favor of the School Board.
In passing, the court noted that there is a distinction in the law between “opposition activity” and “participation activity.” Internal procedures generally amount to “opposition activity.” EEOC charges, on the other hand, constitute “participation activity,” and are accorded a greater presumption when assessing a claim’s validity. Session’s retaliation claim was premised on her internal complaint to the School Board, and not on her later EEOC charge; accordingly, the court did not consider whether this set of facts would be strong enough to carry the day in a “participation activity” retaliation claim.