Vaughan v. Bernice Ray Elem. School 05-CV-223-JD 9/12/07 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jack Vaughan

v. Civil No. 05-CV-223-JD Opinion No.

Bernice A. Rav Elementary School, et a l .

O R D E R

Jack Vaughan, proceeding pro se, brings a claim of gender

discrimination under Title VII of the Civil Rights Act against

the school where he was employed as a teacher's aide, the former

superintendent of schools, the principal, and the assistant

principal. Vaughan also brings a state law defamation claim.

The defendants move for summary judgment, contending that Vaughan

cannot prove either claim. Vaughan objects, contesting the

defendants' version of the circumstances that led to his

dismissal.

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,

(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..

(1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See

.

Background

Jack Vaughan was employed at the Bernice A. Ray Elementary

School ("the School") as a teacher's aide in a second grade

classroom for the 2002 to 2003 school year and from September of

2003 to March of 2004. Kenneth Greenbaum was superintendent of

schools; Bruce Williams was the principal, and Janice Lavoie was

assistant principal. During Vaughan's first year at the School,

he was a teacher's aide in a second grade classroom taught by

Judy Harvey. That year went by uneventfully.

In his second year, Vaughan worked half of the week in Judy

Harvey's classroom and the other half in Barbara MacNamee's

classroom. From the beginning of the second year, teachers

expressed concerns to Williams about Vaughan's interactions with

2 certain students. In particular, the teachers thought that

Vaughan spent too much time with certain girls on the playground

during recess.

On November 12, 2003, Williams called Vaughan to a meeting

in his office to discuss the concerns the teachers had raised.

Lois Roland, a school counselor, also attended the meeting.

Williams and Roland told Vaughan to change his behavior on the

playground. They told him to spend less time with a group of

about seven children, and that they were particularly concerned

with the amount of time he spent with two shy seven-year-old

girls who held his hand and clung to him during recess. They

told Vaughan that they were concerned about his physical

interactions with the two girls. Williams and Roland also told

Vaughan to stop tape-recording children during recess,

distributing questionnaires about the stories Vaughan had

written, and using his body to surround children which looked

like he was trapping them. He was told to spend more time with

boys on the playground. Superintendent Greenbaum was notified of

the meeting.

Vaughan acknowledges that he was told to set physical

boundaries in his interactions with the students who liked to

hold his hand. He contends, however, that the instructions were

vague. He also contends that the two girls were not shy because

3 they initiated contact with him, and "[s]hy girls do not do such

things." Obj. at 3. Vaughan felt he could not abruptly change

his contact with those students because they would feel rejected.

He states that Williams agreed with him. Vaughan asserts that he

tried to "subtly encourage two girls to play on their own,

without making them feel rejected . . . but they were persistent

and occasionally he gave in to their pleas to hold his hand."

Obj. at 2. Vaughan also states that Williams did not instruct

him to limit his contact with the two girls during school time,

other than recess, or after school.

No complaints were made in December. In January of 2004,

several teachers filed complaints about Vaughan's boundary issues

with students which were similar to the complaints made in

November. One teacher noted that Vaughan continued to hold hands

with the two girls on the playground and looked as if he were

holding them captive, that he had three girls standing in front

of him after school "looking like soldiers," and that a story

Vaughan had written used names of current students in the School

and described unusual touching between two sisters. Barbara

MacNamee, the teacher with whom Vaughan worked half of each week,

complained that Vaughan was engaging in flirtatious behavior with

two girls at an assembly, including allowing one girl to put her

leg in his lap while he read a story, and that he was still

4 holding hands with the same two girls and spending a

disproportionate amount of time with them in her classroom.

MacNamee reported that she had discussed her concerns with

Vaughan. Another second-grade teacher complained about Vaughan

flirting with the girls at the assembly.

In response to these complaints, Williams called a meeting

with Vaughan on January 13, 2004. Williams told Vaughan that he

had not changed his behavior as he had been instructed to do. As

a result, he was given the option of resigning his position or

being terminated. Vaughan declined to resign and was placed on

administrative leave with pay as of January 14, 2004. Judy

Harvey, Vaughan's original supervising teacher, filed a complaint

on January 26, 2004, stating that Vaughan had been over-friendly

with students, that he wrapped his arms around them trapping

them, that the messages in his stories were inappropriate, and

that a framed picture taken from a Reader's Digest magazine,

which Vaughan kept on his desk, made her uncomfortable.

A hearing was held on January 27, 2004, which included

Greenbaum, Williams, Lavoie, and Vaughan, who was represented by

counsel. The hearing was continued at Vaughan's request and

resumed on February 25, 2004. The final day of the hearing was

March 4, 2004. Vaughan contends that the hearing was not

conducted properly because several teachers and the principal

5 left, and he was not permitted to present his defense as he

intended to do.

Because he disapproved of the hearing procedure, Vaughan did

not attend the final day, although his counsel did attend.

Vaughan submitted a written defense, that is dated February 5,

2004, in which he contended that female teachers were allowed to

engage in conduct that he was excluded from doing, including

hugging children, holding hands, and holding a classroom sleep

over. His defense included a piece he had written titled "Adults

for Compassionate Touching" with a part dedicated to Andrea, one

of the two "shy" seven-year-old girls he had spent time with on

the playground, along with other materials.

"Andrea's Manifesto" begins with the following statement:

"We appeal for the appropriate touching of children. We believe

all decent adults should feel free to enjoy children, rather than

afraid to do so. Children need to be touched, held, hugged, and

caressed. We want to feel free to fill that need." Vaughan then

provides some autobiographical information interspersed with

references to other materials. The piece concludes with: "And

not being able to hold Andrea, laugh with her, and see the

excitement she has for me, simply because I am, will hurt, will

hurt the most. I WANT TO KEEP WORKING HERE! I WANT TO KEEP

WORKING HERE!"

6 Also on March 4, the final day of the hearing, Vaughan gave

a tape of love songs to Andrea's parents to give to her if they

wanted her to have the tape. The songs on the tape included

"Love You," "Every Breath You Take," "Ghost in Love," "Friday I'm

in Love," "Love Stinks," "I Want to Grow Old with You,"

"Breakfast in Bed," and others. Andrea's parents were upset by

the tape and reported it to school officials.

Superintendent Greenbaum decided to terminate Vaughan's

employment and sent him a letter dated March 8, 2004, in which he

explained that the termination decision was based on Vaughan's

belief that his behavior was appropriate and did not need

modification. On March 10, Williams sent a notice to parents of

second and third grade students who had been in class with

Vaughan to advise them that he was no longer employed at the

School. The letter stated that "the administration has made it

clear to him that he has no further business on Ray School

property. We have also told him that he is not to contact Ray

School parents or students. We think it would be appropriate for

you to have a conversation with your child about this matter and

to let your child know that he/she should have no further contact

with this former employee." The School also notified the Vermont

and New Hampshire Departments of Education of Vaughan's

dismissal.

7 Vaughan contends that Williams overstated the situation

because he was asked, not directed, to stay away from students

and their families. He argues that Williams's letter made him

sound dangerous and threatening. Vaughan cites responses to the

school from some parents to support his interpretation.

Vaughan filed a complaint with the New Hampshire Human

Rights Commission, alleging that he was dismissed from his

teacher's aide position at the School because of his gender. He

alleged that complaints against him were concocted and that

female staff members were treated differently with respect to

their interactions with female students. The Commission

concluded that Vaughan had not shown that he was dismissed

because of his gender, rather than because he refused to set and

abide by appropriate limits in his interactions with students, or

that female teachers were similarly situated to him and were

treated more favorably. Therefore, the Commission found no

probable cause and closed its file.

Discussion

Vaughan asserts in this action that the School discriminated

against him because of his gender. He also alleges a state law

defamation claim. The defendants move for summary judgment,

asserting that Vaughan cannot prove discrimination based on gender and ask the court not to exercise supplemental

jurisdiction over the defamation claim. Alternatively, the

defendants seek summary judgment on the defamation claim.

A. Discrimination

In the absence of direct evidence of discrimination, a

plaintiff must "raise an inference of discrimination through the

familiar McDonnell Douglas burden-shifting framework." Fontanez-

Nunez v. Janssen Ortho LLC,

(1st Cir. 2006). To

withstand summary judgment on a claim of employment

discrimination, a plaintiff must show that he is a member of a

protected class, his job performance met his employer's

legitimate expectations, he was discharged, and he was replaced

by someone with similar skills or qualifications. See Straughn

v. Delta Airlines. Inc..

(1st Cir. 2001). If a

prima facie case is made, "the burden shifts to the employer to

establish a legitimate, non-discriminatory reason for its adverse

employment action." Douglas v. J.C. Penney Co.. Inc..

(1st Cir. 2007). The burden then shifts back to the

plaintiff "to show that the proffered reason was mere pretext,

and that the true reason was prohibited discrimination."

Even if it were assumed that Vaughan could establish a prima

facie case, which is highly doubtful, he cannot show that the

9 School's reason for terminating him was a pretext for unlawful

discrimination. Vaughan's interactions with female students

caused a great deal of concern, understandably so, and provided a

legitimate basis for the School to consider terminating his

employment. Vaughan's defense, however, provided the sine qua

non for discharge, establishing that he did not understand or

accept the appropriate limits the School set for his behavior

with female students. His decision to give a tape of love songs

to one of the students confirmed the improper motivation that the

teachers and the School had suspected.

Vaughan's examples of female teachers interacting in

physical ways with students do not show that he was singled out

for reprimand because he is male. Instead, his examples and

arguments bolster the School's concern that he does not

understand or refuses to accept appropriate roles for teachers in

their interactions with students. Vaughan has not shown that he

was treated differently, because of his gender, from others who

were similarly situated. See Kosereis v. Rhode Island.

(1st Cir. 2003).

There being no material factual dispute, summary judgment in

favor of the defendants is appropriate on the Title VII claim.

10 B. Defamation

Vaughan also brings a claim of defamation under New

Hampshire law. When, as here, a district court has dismissed the

claim over which it had original jurisdiction, the court may

exercise its discretion to decline supplemental jurisdiction as

to a remaining state law claim.

(c); Marrero-

Gutierrez v. Molina,

(1st Cir. 2007). As that is

appropriate in this case, the defamation claim is dismissed,

without prejudice.

Conclusion

For the foregoing reasons, the defendants* motion for

summary judgment (document no. 45) is granted. The clerk of

court shall enter judgment accordingly and close the case.

SO ORDERED.

V^^JJoseph JJoseph A. DrClerico, JrV United States District Judge

September 12, 2007

cc: Nancy Ellen Boudreau, Esquire Debra Weiss Ford, Esquire Jack Vaughan, pro se

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