Unpublished Disposition, 930 F.2d 26 (9th Cir. 1988)

MEMORANDUM^** 

Margaret Coleman, appearing pro se, appeals the district court's grant of summary judgment in favor of the California School for the Deaf (hereafter "CSD"). Coleman, a teacher, brought an employment discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She claims that the district court erred by finding that she did not meet her burden of showing that school officials intentionally discriminated against her because of her race. The school urges affirmance of the summary judgment and also requests additional attorney fees incurred as a result of this appeal, which it terms frivolous. See 42 U.S.C. § 2000e-5(k).

Coleman, the only black teacher at CSD, has taught there for 26 years. Her problems with her supervisors at the school center around the weekly after-school faculty meetings which every teacher in her department is expected to attend. Coleman did not attend these meetings for most of the 1986-87 school year, and was finally asked to account for her excessive absences. In March, 1987, Coleman explained to the school superintendent that she had been treated rudely during a meeting in September, and this was why she refused to attend the meetings. A week later, however, she told two other supervisors that her absences were due to frequent medical appointments which conflicted with the departmental meetings.

Due to these inconsistent explanations, Superintendent Klopping requested that Coleman provide medical verification of any future absences. Coleman continued to miss the meetings. In May of 1987, she filed a grievance with the EEOC, claiming that the documentation requirements were racially discriminatory. In early June, Coleman requested a day of personal leave for medical tests. Her request was denied, since it was the same day as the end-of-the-year awards ceremony and school picnic. Despite the denial, Coleman failed to appear and was docked a day's wage.

In December of 1987, Superintendent Klopping issued an "informal letter of reprimand" to Coleman stating his displeasure with her behavior. The letter required Coleman to meet with the principal periodically during the ensuing year to discuss concerns relating to her work, including absences. On January 8, 1988, the principal and Director of Instruction sent her a "letter of expectations" detailing the meeting requirement and requiring her to formally notify the school before future absences.

In February, 1988, the parties met to attempt a resolution of their differences. They agreed to lift the requirements set forth in the "letter of expectations," and to remove the "letter of reprimand" from Coleman's personnel file at the end of the school year if Coleman complied with school policies. The letter was removed as scheduled.

In July, Coleman received her "right to sue letter" from the EEOC and filed this action for racial discrimination under Title VII of the Civil Rights Act of 1964. Following a hearing, the district court found that Coleman had failed to show that she was treated differently from others similarly situated. In addition, it held that the CSD had presented a legitimate non-racial basis for its treatment of the plaintiff, and granted the CSD's motion for summary judgment. We have jurisdiction over her appeal pursuant to 42 U.S.C. § 2000e et seq. and 28 U.S.C. § 1291.

A grant of summary judgment is reviewed de novo. Banks v. Bethlehem Steel Corp., 870 F.2d 1438, 1441 (9th Cir. 1989) (citing T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629-30 (9th Cir. 1987)). We apply the same standard used by the trial court under Fed. R. Civ. P. 56(c): viewing the evidence in the light most favorable to Coleman, we must assess whether there are any genuine disputes of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989); Judie v. Hamilton, 872 F.2d 919, 920 (9th Cir. 1989).

As the plaintiff in this Title VII action, Coleman bears the initial burden of establishing a prima facie case of disparate treatment, by proving that she is a member of a class entitled to protection under Title VII and that she was "singled out and treated less favorably than others similarly situated on account of race ..." Gay v. Waiters' and Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir. 1982). The focus of the judicial inquiry is whether Coleman has produced evidence supporting an inference of intentional discrimination. Id. at 538 (citing Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). If presented, such evidence is sufficient to foreclose any grant of summary judgment. See Pejic v. Hughes Helicopter, 840 F.2d 667, 672 (9th Cir. 1988). Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to "rebut the presumption of discrimination by 'articulating some legitimate nondiscriminatory reason' for the adverse action." Fragante v. City and County of Honolulu, 888 F.2d 591, 595 (9th Cir. 1989), cert. denied, 110 S. Ct. 1811 (1990). The plaintiff then bears the ultimate burden of showing that the defendant's proffered reason is merely a pretext for invidious discrimination. Id.

Because Coleman is black, she clearly qualifies as a member of the class entitled to protection under Title VII. It is undisputed that she was treated differently than other teachers, since she was required to comply with practices and procedures not demanded of her peers. However, her Title VII claim fails on two counts. First, she failed to show that she was treated differently than other teachers with whom she was similarly situated, i.e. those with attendance records equal to hers. Secondly, she failed to adequately rebut the school's evidence that its treatment of her was based on a legitimate, nondiscriminatory reason (her poor attendance), rather than on her race. We address each contention in turn.

Coleman pursued two theories below to establish her case of disparate treatment. Initially, she argued that there were no other teachers similarly situated since she was the only black teacher. The problem with this argument is that it proves too much: Title VII does not mandate that all black employees in her situation be given preferential treatment, nor does it render legitimate disciplinary actions suspect merely because of the race of the employee. The district court was correct to reject this theory.

In the alternative, Coleman contends that her attendance record was similar to several teachers with after-school coaching duties, who were routinely excused from attending departmental meetings, and thus she was "singled out" for discriminatory treatment. Coleman misses the point. Teacher/coaches are not similarly situated to Coleman, because their absences are pre-arranged, permitted, and indeed encouraged by the school, rather than unrelated to school functions and attributable to personal problems as were Ms. Coleman's. In order to show disparate treatment Coleman would have to demonstrate that teachers who missed meetings for purely personal reasons were treated better than she. Cf. Garrett v. City and County of San Francisco, 818 F.2d 1515, 1519 (9th Cir. 1987) (evidence of more lenient treatment for other employees supports prima facie case). Additionally, Coleman failed to present any evidence of racial animus on the part of her superiors at the CSD. Cf. Judie v. Hamilton, 872 F.2d 919, 922 (9th Cir. 1989).

Assuming arguendo that Coleman established her prima facie case and shifted the burden to CSD, it presented ample evidence to rebut any inference of discrimination. Several affidavits were submitted which indicate that its actions were a response to Coleman's poor attendance record at departmental meetings and her inconsistent explanations for these absences. Coleman offered no evidence to show that CSD's explanation was pretextual, nor did she offer other evidence to persuade the district court that the CSD intentionally discriminated against her. See Cotton v. City of Alameda, 812 F.2d 1245, 1248 (9th Cir. 1987) (plaintiff required to rebut evidence of legitimate business purpose). It is not enough for Coleman to rest her case on the fact that she is the only black teacher at the CSD. See Pejic, 840 F.2d at 675; Forsberg v. Pac. Bell Northwest Telephone Co., 840 F.2d 1409, 1419 (9th Cir. 1988) (mere conclusory allegations, without more, no bar to summary judgment). We thus affirm the district court's grant of summary judgment to CSD on the Title VII claim.

On appeal, Coleman also raises three claims which were not presented to the district court: racial discrimination under 42 U.S.C. § 1981, denial of her First Amendment right to free speech under 42 U.S.C. § 1983, and a state law claim of discrimination on the basis of physical handicap.¹  In the absence of exceptional circumstances, we do not consider issues not raised below, Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir. 1985), and no such circumstances exist here.

CSD seeks attorney fees for this appeal on the basis that Coleman's claim is frivolous. However, a Title VII claim is not frivolous merely because the plaintiff did not prevail, Hudson v. Western Airlines, Inc., 851 F.2d 261, 267 (9th Cir. 1988), and courts may consider the party's pro se status in deciding whether to grant or deny attorneys fees. See Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 620 (9th Cir. 1987). Here, although Coleman did not prevail, her claim was not frivolous. In addition, CSD's brief provided little assistance to the court. Therefore, its request for attorney fees on appeal is DENIED.

Conclusion

The district court's grant of summary judgment is AFFIRMED.