Afshar v . Pinkerton Academy CV-03-137-JD 09/07/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Foad Afshar

v. Civil N o . 03-137 JD Opinion N o .

Pinkerton Academy

O R D E R

Foad Afshar brings a claim against his former employer,

Pinkerton Academy, alleging discrimination based on his national

origin and his perceived religion in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Pinkerton

Academy moves for summary judgment, asserting that Afshar cannot

show that his contract was not renewed because of either his

nationality or his perceived religion. Afshar objects.

Background

Foad Afshar is a native of Iran and immigrated to the United

States in 1977 when he was seventeen years old. He graduated

from the University of Massachusetts with a degree in psychology

in 1982, earned a Master’s degree from Harvard University in

1986, and earned a Ph.D. from California Coastal University in

2002. He worked in the administration of guidance and special

education departments in New Hampshire Schools beginning in 1994.

He was hired by Pinkerton Academy on July 1 , 1999, to serve as Director of the Guidance Department.

Afshar replaced Robert Scully who had been the Guidance

Director at Pinkerton Academy for seventeen years before he

retired after the 1998-1999 school year. In making the hiring

decision, the administration at Pinkerton was looking for someone

who would reorganize the department, require more accountability from the counselors within the department, and make them work as

a team. They discussed those objectives with Afshar during the

interview process, and they liked his ideas for reorganization.

Soon after he started, several Guidance Department employees

made complaints about Afshar. They objected to his style and

reorganization of the department. Headmaster Bradford Ek

assigned Assistant Headmasters Nick Ithomitis and John Muller to

investigate the complaints. Because some of those who had

complained said that they felt harassed by Afshar, Ithomitis and Muller began a formal harassment investigation.

On April 4 , 2000, they submitted a report to Headmaster Ek

of their findings and recommendations. In the report, Ithomitis

and Muller found no harassment and that the counselors’

complaints that he had created a hostile work environment were

unfounded. They concluded that Afshar was the appropriate person

to lead the department on the condition that he adjust his

leadership style by using more tact and diplomacy and being more

2 discreet with his use of humor. The report also stated that

Afshar would need the full support of the headmaster and the

administration. An “Overview” that was prepared along with the

report states that counselors in the Department “fail to accept

legitimate criticisms,” believe that all recommended changes are

wrong, and that three to five counselors “will simply be unable to work for/with M r . Afshar under any conditions.” P l . Ex. 2 .

Three counselors resigned at the end of the year. The

administration had expected them to leave, thought it was not a

loss, and felt that it would aid the reorganization of the

Department. Despite the complaints and the resignations, Afshar

received a favorable review that year, with comments suggesting

that he had worked under very adverse circumstances and

nevertheless had done well. His employment contract was renewed

for a second year. Afshar’s second year, 2000-2001, was uneventful. He heeded

the recommendations that he change his management style to be

more tactful and diplomatic. No complaints were made against

him. His evaluation at the end of the year was again positive

and even showed improvement from the first year. Although more

Guidance Department staff resigned at the end of the 2000-2001

school year, that summer Assistant Headmaster Ithomitis offered

Afsar a new administrative position to oversee both the Guidance

3 and Special Education Departments. Afshar declined the promotion

because it required reorganization of the Special Education

Department.

The 2001 school year began well. However, Afshar perceived

a distinct change in the administration and his colleagues after

the terrorist attacks of September 1 1 , 2001. He noted that he was not included in the school’s handling of the tragedy of

September 1 1 . Shortly thereafter, at the request of Assistant

Headmaster Mary Anderson, administrator Ruth Murray asked Afshar

to bring in his “green card,” claiming that it had expired.

Afshar’s “green card” had not expired; instead, his employment

authorization form had expired. Anderson explained in her

deposition that she had checked Afshar’s personnel records only

because they were trying to hire someone from England and wanted

to see what forms were needed to hire a non-citizen. On September 1 8 , 2001, three counselors complained to

Ithomitis about Afshar. They contended that two comments Afshar

made during a parent meeting were inappropriate, that they did

not have an opportunity to review the senior college admissions

packet before it was printed, that he was autocratic, dishonest,

and demeaning, and that they feared retaliation for their

complaints. Ithomitis discussed the complaints with Afshar, who

disagreed with them. On September 2 6 , a counselor who had made a

4 complaint against Afshar during his first year at Pinkerton, charged him with harassment. Afshar informed Assistant Headmaster Anderson that the same counselor had accused him of “terrorizing” the Department, which he believed to be a reference to September 11 that he found offensive.

Anderson and Assistant Headmaster Ken Wiswell investigated Afshar’s complaint against the counselor and her harassment complaint against him and submitted a report to Headmaster Ek on October 1 1 , 2001. The counselor denied making the “terrorizing” remark to Afshar, and Anderson and Wiswell found no witnesses to the remark. They concluded that there was insufficient evidence to pursue Afshar’s complaint.1

They also found no evidence of harassment to support the

counselor’s charge against Afshar. They concluded, however, that

problems again existed in the department because of Afshar’s

leadership style and management. Anderson and Wiswell stated in

their report that there was a “serious problem” with Afshar’s

leadership and that there was “widespread (to the point of near

unanimity) high level of discontent that threatens the

effectiveness of the department.” Def. Ex. 1 2 . Based on the

1 The counselor gave a different version of her remark in which she claimed to have said that “there is enough terror occurring in the outer world we don’t need additional anxiety in the school setting in our department.” Def. Ex. 1 0 .

5 notes kept by Wiswell and Anderson, the counselors they

interviewed expressed some positive personal feelings about

Afshar but also indicated that problems existed with Afshar’s

management style and in his relationships with people in the

department. Some of those interviewed stated that they believed

people in the department were actively working or conspiring against Afshar. Several of the counselors suggested that the

problems between Afshar and others might arise from his culture.

In early 2002, Headmaster Ek began the process of deciding

whether to renew Afshar’s contract for the next year. He

considered the fourth year of employment to constitute an

informal tenure because of the process required before a contract

could be non-renewed after the fourth year. On February 1 , 2002,

Ek completed an evaluation form in which he checked the “not

recommended” comment and explained that Afshar had “[i]ssues with management skills, [i]ssues dealing with parents, and problems

with staff which are not all his fault.” Def. Ex. 1 4 . Ek sought

input from other members of the administration about whether to

renew Afshar’s contract. On March 1 1 , 2002, during an

administrative team meeting, all agreed that Afshar’s contract

should not be renewed.

Ek recommended to the Faculty Committee of the Board of

Trustees that Afshar’s contract not be renewed for the reasons

6 stated on the evaluation form completed on February 1 , 2002. The

Committee accepted that recommendation on March 2 1 , 2002. In

August of 2002, Ek met with Afshar and his counsel and explained

that his contract was not renewed because of the numerous

complaints filed by the Guidance Department staff. Afshar filed

a complaint with the Equal Employment Opportunity Commission, which issued a right to sue letter on January 1 3 , 2003.

Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

See Celotex Corp. v . Catrett,

1 7 , 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v . Liberty Lobby, Inc.,

4 2 ,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255.

7 Discussion

Pinkerton Academy repeatedly expresses its outrage and

incredulity that Afshar would assert he was the victim of

discrimination and insists that Afshar’s contract was not renewed

because of his job performance. Pinkerton seeks summary judgment

and an award of attorneys’ fees. In response, Afshar

meticulously dissects the factual record, asserting that the

circumstances under which Headmaster Ek recommended that his

contract not be renewed support an inference of discrimination

based on his national origin.2 Despite Pinkerton’s adamant

disavowal of any discriminatory intent, this case cannot be

resolved on summary judgment.

Title VII prohibits discrimination in employment based o n ,

among other things, national origin and religion. § 2000e-

2(a)(1). For purposes of deciding a motion for summary judgment

on a Title VII claim when the record does not include direct evidence of discrimination, the court applies “the well-

established McDonnell Douglas-Burdine-Hicks burden-shifting

framework.” Benoit v . Tech. Mfg. Corp.,

(1st

2 Afshar also alleged that Pinkerton’s discrimination was based on a misperception that he was a Muslim when he is a member of the Bahai faith. For purposes of summary judgment, that part of Afshar’s claim is indistinguishable from his claim of national origin discrimination and is not discussed separately.

8 Cir. 2003). Under that framework, if the plaintiff establishes a

prima facie case, an inference of discrimination arises that the

employer may rebut with a legitimate, non-discriminatory reason

for its decision. Kosereis v . Rhode Island,

0 7 , 212

(1st Cir. 2003). “If the employer can state such a reason, the

inference of discrimination disappears and the plaintiff is required to show that the employer’s stated reason is a pretext

for discrimination.”

To make a prima facie case, a plaintiff must provide

evidence that “(1) he is a member of a protected class; (2) he

was qualified for the job; (3) the employer took an adverse

employment action against him; and (4) the position remained open

or was filled by a person with similar qualifications.”

; accord Benoit,

. The showing necessary to

establish a prima facie case is not onerous.

The more difficult issue in most cases, as here, is whether the employer’s

proffered reasons for taking an adverse employment action are

pretextual. See, e.g., Candelario Ramos v . Baxter Healthcare

Corp.,

3 , 56 (1st Cir. 2004).

“An assertion of pretext requires an examination of the

employer’s articulated reason for termination.” Zapata-Matos v .

Reckitt & Colman, Inc.,

0 , 47 (1st Cir. 2002). Pretext

may be established in a variety of ways including by showing that

9 the employer treated the plaintiff differently than other

similarly situated employees or that the employer’s explanations

for its decision were false. Che v . Mass. Bay Trans. Auth.,

1 , 39-40 (1st Cir. 2003). Discrimination may be inferred

from the plaintiff’s prima facie case combined with “compelling

proof of the pretextual nature of the employer’s explanation.” Rathburn v . Autozone, Inc.,

2 , 72 (1st Cir. 2004).

In this case, Afshar has met the requirements of a prima

facie case. As an Iranian, Afshar is a member of a protected

class. He was qualified for his job, as is evidenced by his

positive evaluations in 2000 and 2001 and the offer of a

promotion in the summer of 2001. Pinkerton took adverse

employment action against him by deciding not to renew his

contract. According to Afshar, his position was filled by a non-

Iranian woman with inferior qualifications. Pinkerton’s original reasons for not renewing Afshar’s

contract as expressed by Headmaster Ek, “issues” with management

skills, “issues” dealing with parents, and problems with staff

that were not entirely his fault, provide a legitimate and non-

discriminatory basis for the decision. When those reasons were

challenged in the course of discovery in this case, however,

Pinkerton offered new reasons or at least expanded versions of

those reasons to justify the decision. The explanations and

10 amplifications offered by Pinkerton, in light of the evidence of

record, raise an issue as to the credibility of those reasons.

In addition, taking the record evidence in the light most

favorable to Afshar, the timing of the complaints after September

1 1 , 2001, and the administration’s negative response, in contrast

to its confidence in Afshar in August of 2001 and before, raise an issue as to the credibility of the stated reasons. Further,

to the extent that Pinkerton argues that its decision to

terminate Afshar was necessary to resolve unrest in the

Department, even if the unrest was unfounded and due in part to

discriminatory animus, that would not be a legitimate basis for

terminating him. See Cariglia v . Hertz Equip. Rental Corp.,

7 , 85 (1st Cir. 2004).

District courts are cautioned in cases involving employment

discrimination to exercise “particular caution before granting summary judgment for employers on such issues as pretext, motive,

and intent.” Santiago-Ramos v . Centennial P.R. Wireless Corp.,

6 , 54 (1st Cir. 2000); accord Straughn v . Delta Air

Lines, Inc.,

3 , 34 (1st Cir. 2001). The court will

heed that advice and concludes that summary judgment is not

appropriate in this case.

11 Conclusion

For the foregoing reasons, the defendant’s motion for

summary judgment (document n o . 18) is denied.

SO ORDERED.

Joseph A . DiClerico, J r . United States District Judge September 7 , 2004

cc: Linda S . Johnson, Esquire Edward C . Mosca, Esquire

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