The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court
MEMORANDUM OPINION AND ORDER
Hon. Harry D. Leinenweber
Before the Court are the parties' Cross-Motions for Summary Judgment. For the following reasons, the motions are denied.
A. Dossiea's Responsibilities and Performance
Plaintiff Albert Dossiea ("Dossiea"), an African-American, has worked for the Defendant Board of Education for more than 30 years. Pl.'s Statement of Facts ("Pl.'s SOF") ¶ 1. In April 2004, he was promoted to the position of Chief Engineer, Grade 5.3, at Williams Multiplex School. Def.'s Statement of Facts ("Def.'s SOF") ¶ 2. The position of Engineer Custodian Grade 5 includes responsibilities such as operating and maintaining boilers, HVAC equipment, structural pest control, initiating requisitions for repairs to the school building, equipment, and grounds, servicing food service area and equipment, supervising the engineer, supervising custodial and maintenance staff, and preparing work schedules for maintenance workers and custodial staff. Def.'s Ex. B-2. These duties also include being responsible for the cleanliness of the designated school building and grounds. Def.'s Ex. B-1.
Dossiea alleges unequal treatment by Principal Williams ("Williams") and Supervising Principal Oden ("Oden"). Def.'s SOF ¶ 1. Dossiea argues that he was treated less favorably than Thomas McCarthy ("McCarthy"), a Grade 2 engineer; Dan Kennedy ("Kennedy"), Chief Engineer at the school before Dossiea; William Bulvan ("Bulvan"), an engineer who was Dossiea's temporary replacement; and Jerome Longawa ("Longawa"), the Chief Engineer who was Dossiea's permanent replacement. These individuals are white. In November 2004, Oden called Dossiea a "straw boss" in response to his complaints about McCarthy's work performance. Dossiea Dep. at 35-37. Dossiea argues that this remark is evidence of racial animus on the part of his superiors.
Oden and Williams issued Dossiea several cautionary notices regarding his performance. On October 21, 2004, Oden issued Dossiea a cautionary notice for leaving debris on school grounds, a citation from a city inspector regarding rodent droppings, not removing garbage in the lunchroom in a timely fashion, and leaving the lower level staff area unclean. Def.'s Ex. E at 7.
On April 14, 2005, Oden issued Dossiea a cautionary notice for failure to swipe, tardiness from January to April 2005, leaving the school without permission, failure to remove graffiti, inappropriate behavior during instruction time (bringing an outside guest into Head Start classrooms during reading time), authorizing students to return to the building after a fire alarm before the fire department arrived, storing flammable chemicals in the building near the entrance of the lower level where staff is located, peeling paint on the ceiling in the lower level where parents and students meet during parent training and student enrollment, and falsification of time (Dossiea could not be located on March 23, 2005). Id. at 24. On April 22, 2005, Williams issued amended cautionary notices describing each of these acts of misconduct separately. Id. at 32-38. With respect to the removal of graffiti, Williams testified that the custodial workers were responsible for actually removing graffiti under the direction of the engineer. Williams Dep. at 38-39.
On April 22, 2005, Williams issued Dossiea an amended cautionary notice for negligently failing to carry out a rule or order, namely wearing a hat in the building after being told not to. Id. at 32. The Board has no policy regarding whether hats may be worn in the building; it was an "unwritten" rule, according to Williams. Williams Dep. at 45.
On May 10, 2005, Williams issued Dossiea a cautionary notice for leaving the building without permission on May 4, 2005. Id. at 47.
On May 13, 2005, Williams issued Dossiea a Notice of Disciplinary Action for failure to swipe, failure to remove graffiti, failure to remove a crack pipe from the school entrance, and tardiness and poor attendance. Id. at 49. There was a disciplinary hearing on May 13, 2005, at which Williams found the charges substantiated and Dossiea was suspended for 3 days without pay. Id. at 49-56. The Board rejected his appeal on June 9, 2005, finding that he committed these violations despite prior warnings. Id. at 58-59.
On June 2, 2005, Williams issued Dossiea a cautionary notice for insubordination in failing to replace missing shades in a classroom with shades from an unused classroom. Id. at 61. When Williams asked Dossiea to replace the missing shades, he stated that the shades from the unused classroom did not fit. She told him that the shades in all the classrooms were the same size. Dossiea insisted that the shades were different sizes, and he did not replace the shades. According to the cautionary notice, by the next day, the shades had not been replaced. On June 20, 2005, Williams issued Dossiea a Notice of Pre-discipline Hearing for the shades incident. Id. at 62. On July 25, 2005, a discipline hearing was held. Id. at 67. Dossiea's union representative, Dennis Thomas, was present; he stated, "We are here regarding insubordination leveled against one of our members. We have to address this insubordination about a shade. I don't think we should be here about a shade." Id. Thomas also stated that he went to look at the shade with Dossiea and found that the shades did not fit. He stated that a work order had been submitted requesting new shades, but that there was not currently any money in the budget for new shades. Nevertheless, Williams found that the charges were substantiated and recommended that Dossiea be suspended without pay for 5 days. Id. at 70. These charges were appealed, however, and Dossiea did not serve the suspension. Cheryl Colston Dep. at 8-9.
Dossiea requested a transfer on September 23, 2005. Williams approved the request, and it was granted by the Board's department of human resources. Def.'s SOF ¶ 21. Dossiea alleges that he transferred to another school at a lower pay grade because he no ...