                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1197n.06

                                            No. 11-2149
                                                                                          FILED
                           UNITED STATES COURT OF APPEALS                             Nov 20, 2012
                                FOR THE SIXTH CIRCUIT                           DEBORAH S. HUNT, Clerk


ANDREW G. GIELDA,                                  )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
BANGOR TOWNSHIP SCHOOLS,                           )   EASTERN DISTRICT OF MICHIGAN
                                                   )
       Defendant-Appellee.                         )                   OPINION



Before: ROGERS and STRANCH, Circuit Judges; PEARSON, District Judge.*



       BENITA Y. PEARSON, District Judge. Plaintiff Andrew Gielda appeals the district

court’s order granting summary judgment in favor of Defendant Bangor Township Schools (Bangor).

Gielda was an employee of the school district for two years, serving as the principal at both a middle

and elementary school. After two years of employment, the school board voted to not renew

Gielda’s contract at a special meeting where Superintendent Tina Kerr testified about Gielda’s

ineffectiveness as a school administrator. Gielda brought this lawsuit in the Eastern District of

Michigan alleging gender discrimination, unfair labor practices, and violations of administrative due

process. The district court granted summary judgment for Bangor on all three claims. The Court

affirms the district court’s judgment. In the court below, Gielda did not establish that the non-

       *
         The Honorable Benita Y. Pearson, United States District Judge for the Northern District
of Ohio, sitting by designation.
Gielda v. Bangor Twp. Schools
No. 11-2149

discriminatory reason offered by the school board for not renewing his contract was a pretext for

gender bias. Likewise, Gielda did not establish that the school board had a discriminatory, anti-

union motive for deciding not to renew his contract.

                                       I. BACKGROUND

       Gielda worked in the Standish Sterling Community School System from 1997 to 2007,

during which time he served as a middle school and high school assistant principal. In 2007, Gielda

was hired to be the principal of Christa McAuliffe Middle School within the Bangor Township

School District. Gielda was selected by a hiring committee comprised of, among others,

Superintendent Tina Kerr and Assistant Superintendent Richard Heinrich, who found Gielda to be

qualified for the position. At about the same time, the committee also hired Beth Robb to serve as

the principal of the Bangor Township high school. Gielda testified that he was more experienced

than Robb; however, she received a higher salary due to the position. Both Gielda and Robb

commenced their employment in the summer of 2007.

       Gielda contends that he began facing discrimination at the middle school as soon as his

employment started. In his deposition, Gielda testified that Kerr used “snack and chat” and

one-on-one meetings with middle school teachers to receive reports about Gielda, and that he was

the only school administrator whose staff met with Kerr in this manner. Additionally, a female

employee at the school circulated a survey seeking responses regarding teachers’ ability to work with

Gielda, and male employees were reportedly excluded from the survey. Throughout the year, female

employees would call Kerr to complain about Gielda. Cara Barcia, an administrative assistant to

Kerr, testified that this was rarely done by teachers prior to Gielda’s arrival. Gielda also testified

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that, after his involvement in contract negotiations held in October 2007, he was told he would not

receive an annuity and that his pursuit of an annuity had angered Kerr. Finally, Gielda recalled at

least one instance when a female teacher made insubordinate, sexist comments. Gielda testified that

Kerr did nothing when he asked for her help to resolve that problem.

       In her deposition, Kerr described Gielda’s first year as principal differently. Kerr testified

that Gielda demonstrated problematic work habits. Gielda only worked twelve days during his first

month on the job. He ignored staff concerns and failed to send an introductory letter to them. The

problems persisted throughout the year. School staff complained that Gielda was unavailable as an

administrator: he frequently left work early, would be dismissive of staff who came to see him in

his office, and did not regularly attend school events. Concerns about Gielda’s leadership and his

interpersonal abilities were expressed by “a number of staff.” Moreover, Gielda’s evaluation rated

him below the required level of performance in 56.6% of the categories.

       Prior to the 2008-09 academic year, Kerr decided to move Gielda to the position of principal

at the elementary school. While Gielda claims this was done as part of the continued discrimination

he faced, Kerr testified that the move was intended to help Gielda, as Kerr had a vested interest in

his success because he was the first principal she hired. Thereafter, Gielda and the elementary

school principal, Dianna Tuttle, traded positions.

       Gielda contends that the discrimination he faced continued during his year at the elementary

school. In his deposition, Gielda testified that Michelle Goallie, a teacher at the school, confronted

Gielda to inform him that she was to report any issues with him to Kerr. Additionally, Gielda claims

he was asked to relinquish his reserved parking spot for Goallie because she was pregnant. Gielda

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testified that this was disparate treatment because Tuttle, the previous elementary school principal,

was never asked to allow pregnant or injured teachers to use her parking spot.

       Kerr testified that Gielda’s unsatisfactory performance as a school administrator continued

even after he was transferred. Gielda scored lower on his performance evaluation than he did during

his time at the middle school. Kerr testified that she held a meeting with Gielda to provide him

concrete ways to improve, but this meeting did not help his deteriorating performance. Additionally,

Gielda had suspended 132 students from the elementary school during his tenure, a substantial

increase compared to 38 suspensions at two other district elementary schools combined. Kerr

averred that Robb’s performance as a high school principal also was not meeting expectations.

        Kerr also testified that she had more meetings with staff members at Robb’s school than

Gielda’s. Robb also received low scores on her performance evaluation.

       In March 2009, Kerr informed both Robb and Gielda that she would be recommending that

the school board not renew their contracts. Kerr offered an alternative to formal non-renewal: resign

in exchange for receiving positive reviews and letters of recommendation from Kerr and Heinrich.

While Robb elected to resign, Gielda chose instead to discuss his non-renewal with the school board.

On April 23, 2009, the school board conducted a special meeting during which Kerr presented her

recommendation and Gielda had an opportunity to reply. In addition to providing evidence of

Gielda’s performance over the past two years, Kerr also made the following comment concerning

Gielda’s involvement in labor negotiations that took place in October 2007:

       On October 10th and 12th, I met with the USW (Admin) team to discuss
       negotiations. Mr. Gielda volunteered to be a representative for the administrative
       team. These negotiations were tenuous due to Mr. Gielda’s own agenda. He insisted

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        that he should be eligible for the 2007-08 increase and annuity payment. This created
        some hostility between the team, as well as they felt Mr. Gielda as well as I did that
        Mr. Gielda should not [be] eligible for a pay raise after only being on the job for two
        months. His salary and contract was adjusted in July when he began his employment
        with the district. He still held firm that he thought he should have had the raise, but
        the administrative team ignored his own agenda and voted to approve the new
        contract.

The board voted unanimously to not renew Gielda’s contract. Subsequently, he was replaced by

Margy Dewey as principal.

        Gielda asserts his non-renewal was the culmination of Kerr’s campaign against him. Gielda

notes the testimony of Barcia, who testified that Kerr instructed her to delete a positive review of

Gielda after he did not tender a letter of resignation. Barcia further testified that she was asked by

Kerr to redact portions of a meeting that referenced Robb’s resignation.

        On June 25, 2010, Gielda filed a complaint against Bangor in the Eastern District of

Michigan alleging three causes of action. Gielda alleged that his contract was not renewed because

of his gender, in violation of Title VII of the Civil Rights Act (“Title VII”) and the Michigan Elliot

Larson Civil Rights Act (“ELCRA”). Gielda also contended that the decision to not renew his

contract violated the Taft-Hartley Labor Management Relations Act (“Taft-Hartley”) and Michigan

Public Employment Relations Act (“PERA”) since the decision was based on his involvement in

contract negotiations in October 2007. Finally, Gielda averred that the decision to not renew his

contract violated the Administrator’s Due Process Act.

        The district court granted summary judgment for Bangor on all three counts. Specifically,

the district court held that Gielda could not establish that the articulated reasons for the non-renewal

of his contract were a pretext for gender discrimination. Additionally, the district court found that

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No. 11-2149

no reasonable jury could conclude that Gielda’s participation in labor negotiations influenced the

non-renewal. Finally, the district court noted that the Administrator’s Due Process Act requirement

that an administrator have the opportunity to meet with the school board to discuss non-renewal was

satisfied on April 23, 2009, when Gielda met with the whole school board at his request.1

       Gielda appeals to this Court on two separate grounds. First, Gielda contends it was reversible

error that the district court found there was no genuine issue of material fact as to pretext in his

gender discrimination claims under Title VII of the Civil Rights Act and the Michigan Elliot Larson

Civil Rights Act. Second, Gielda alleges it was reversible error that the district court granted

summary judgment upon his claims arising from the Taft-Hartley Labor Management Relations Act

and Michigan Public Employment Relations Act.

                                 II. STANDARD OF REVIEW

       We review the district court’s grant of summary judgment de novo, using the same standard

of review applicable in the district court. Gannt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1045

(6th Cir. 1998). Summary judgment is appropriate only if there is no genuine issue as to any material

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In

analyzing a motion for summary judgment, we construe all evidence in the light most favorable to

the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255.




       1
        The district court also found that Gielda abandoned this claim in his response to
Bangor’s motion for summary judgment.

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No. 11-2149

                                          III. ANALYSIS

        A. Gielda’s Gender Discrimination Claims Fail Because He Did Not Prove
           Bangor’s Articulated Reason Was Pretextual.

        In his first assignment of error, Gielda alleges that the non-renewal of his contract violated

both Title VII and ELCRA. 42 U.S.C. § 2000e, et seq and Mich. Comp. Laws § 37.2101, et seq.

We affirm the district court’s ruling granting summary judgment in regard to these claims.

        This Circuit reviews Title VII and ELCRA claims under the same standard. Jackson v.

Quanex Corp., 191 F.3d 647, 658 (6th Cir. 1999). In disparate treatment claims involving gender

discrimination, a reviewing court applies a three-step “shifting burden approach.” McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). First, the plaintiff bears the burden of

establishing a prima facie case of gender discrimination. Texas Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 252–53 (1981) (quoting McDonnell Douglas, 411 U.S. at 802). Next, the defendant

must “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id.

(quoting McDonnell Douglas, 411 U.S. at 802). Finally, the plaintiff must prove by a preponderance

of the evidence that the articulated legitimate reason is merely a pretext for the discrimination. Id.

(quoting McDonnell Douglas, 411 U.S. at 804). At all times, the plaintiff bears the “ultimate burden

of persuasion” on the fact that the defendant has intentionally discriminated against the plaintiff. St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). Furthermore, this framework is not to be

applied mechanically but rather on a case-by-case basis with consideration given to the specific facts

of the present case. See Furnco Const. Corp. v. Waters, 438 U.S. 567, 577 (1978).




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        “To establish a prima facie case of employment discrimination, a plaintiff must demonstrate

that: (1) he is a member of a protected class; (2) he was qualified for his job; (3) he suffered an

adverse employment decision; and (4) he was replaced by a person outside the protected class or

treated differently than similarly situated non-protected employees.” White v. Baxter Healthcare

Corp., 533 F.3d 381, 391 (6th Cir. 2008). In the reverse discrimination context, “a plaintiff satisfies

the first prong of the prima facie case by ‘demonstrat[ing] background circumstances [to] support

the suspicion that the defendant is that unusual employer who discriminates against the majority.’”

Leadbetter v. Gilley, 385 F.3d 683, 690 (6th Cir. 2004) (quoting Pierce v. Commonwealth Life Ins.,

40 F.3d 796, 801 (6th Cir. 1994)). When selecting an employee who is similarly situated for

comparison purposes, the comparative employee must be similar “in all relevant respects.”

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998), quoted in Wright

v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006). A court must also consider whether the

similarly situated employees “engaged in acts of comparable seriousness.” Bobo v. United Parcel

Serv., Inc., 665 F.3d 741, 751 (6th Cir. 2012) (citations omitted). By establishing the prima facie

case for discrimination, the plaintiff creates a presumption of discrimination. Burdine, 450 U.S. at

254.

        When the burden shifts to the defendant to “articulate some legitimate reason,” the defendant

must meet a burden of production. Id. In particular, “the defendant must clearly set forth, through

the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact,

would support a finding that unlawful discrimination was not the cause of the employment action.”

Hicks, 509 U.S. at 507. In evaluating the sufficiency of the articulated reason, a court should find

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that the reason both presents a “legitimate reason for the action” and “frame[s] the factual issue with

sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext.”

Burdine, 450 U.S. at 255–56. When the defendant articulates a legitimate reason for the plaintiff’s

termination, the presumption of discrimination is dropped. Id. at 255 n.10.

       If that burden is satisfied by the defendant, the burden of proving that the proffered reason

was pretextual, or not the true reason for the employment decision, shifts to the plaintiff and merges

with the ultimate burden of persuasion. Id. at 256. In order to prove that the articulated reason of

the defendant is pretextual, the plaintiff may prove that the articulated reasons had no basis in fact,

did not actually motivate the employer’s action, or were insufficient to motivate the employer’s

action. Harris v. Metro. Gov’t of Nashville & Davidson Cnty., 594 F.3d 476, 486 (6th Cir. 2010).

The plaintiff may also prove pretext “by offering evidence which challenges the reasonableness of

the employer’s decision to the extent that such an inquiry sheds light on ‘whether the employer’s

proffered reason for the employment action was its actual motivation.’” Wexler v. White’s Fine

Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003), quoted in Baxter Healthcare Corp., 533 F.3d at

393. Additionally, the plaintiff will fail to meet the burden of persuasion “unless it is shown both

that the [articulated] reason was false, and that discrimination was the real reason.” Hicks, 509 U.S.

at 515 (emphasis in original). A court should grant summary judgment in discrimination cases when

“the plaintiff only created a weak issue of fact as to whether the defendant’s reason was untrue and

there is ample evidence to support the employer’s position.” Abdulnour v. Campbell Soup Supply

Co., 502 F.3d 496, 504 (6th Cir. 2007) (internal quotation marks omitted); see also Chen v. Dow

Chem. Co., 580 F.3d 394, 402 (6th Cir. 2009) (“Because Chen has not produced evidence from

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No. 11-2149

which a reasonable factfinder could doubt that she was fired for performance-related reasons,

summary judgment was appropriate on her disparate treatment claim.”).

        We assume for purposes of argument that Gielda established a prima facie case. The district

court correctly determined that Bangor articulated a legitimate, nondiscriminatory reason for the non-

renewal of Gielda’s contract. As Bangor correctly points out, there was more than ample evidence

to support the decision to not renew Gielda’s contract due to his performance issues that lasted

almost two years. Gielda received unsatisfactory evaluations as an administrator at both the middle

and elementary schools. His visibility as an administrator was inadequate both during school hours,

as manifest by the number of teacher complaints about his dismissive nature, and after school hours,

where it was demonstrated that he rarely made appearances at appropriate school functions. Kerr

also noted that this behavior did not improve, even after a number of performance reviews and a

transfer to a different school away from teachers allegedly giving Gielda a difficult time. Thus,

Bangor met its burden of production by demonstrating a legitimate reason for the adverse

employment action.

       Gielda, moreover, failed to meet the ultimate burden of proving that the articulated reason

for which he was fired was a pretext for gender discrimination. The evidence does not support, nor

does Gielda attempt to argue, that the reason articulated by the school board had no basis in fact.

Nor was the reason insufficient to motivate the non-renewal. As discussed above, Bangor provided

ample evidence that Gielda’s performance as principal at two separate Bangor Township schools

was inadequate and justified its decision to not renew Gielda’s contract. To survive summary



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judgment, Gielda must present sufficient evidence demonstrating that Bangor’s reason did not

actually motivate its non-renewal decision.

       Viewing the evidence and drawing all reasonable inferences in favor of Gielda, as is required

at summary judgment, Gielda failed to present sufficient evidence to allow a factfinder to conclude

that he met the ultimate burden of proving that Bangor discriminated against him based upon his

gender. As the district court noted in its memorandum, Gielda attempted to demonstrate pretext by

referring to a number of incidents during his two years as a principal that he alleges reflect gender

bias; yet, none of Gielda’s arguments demonstrate that the school board participated in the

discrimination. Gielda argues that the sexist comments made by a teacher during his year at the

middle school, the evaluation survey that was circulated among female teachers, and the controversy

with the parking spot at the elementary school are indicative of the gender discrimination he faced

from various female employees of the school district. But these examples do not demonstrate that

the school board, an entity that is independent of the teaching staff at both schools where Gielda

worked, discriminated against Gielda because of his gender. It was a middle school teacher, not the

school board, that allegedly directed a sexist comment at Gielda. Gielda has also failed to

demonstrate how the school board was responsible for the survey that was circulated at the middle

school. Similarly, it was a teacher, not the school board, that may or may not have started a

controversy over the elementary school parking spot. The school board did not participate in any

of these events. Biases, if any, that may have been held by the teachers cannot be imputed to Bangor

based upon the record before this Court.



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       Gielda also argues that Kerr discriminated against him based upon his gender because she

permitted teachers to report about him and, further, that Kerr’s behavior surrounding his non-renewal

suggests that Gielda’s gender, not his performance, was the actual motivating factor in termination.

Yet again, Gielda has failed to connect the actions of non-school board members to Kerr or Bangor.

There is no reliable evidence that the survey conducted about Gielda actually excluded male

employees. Even if the survey participants were predominantly female, that does not mean their

participation or the motivation for conducting the survey was a consequence of gender discrimination

on the part of the school board. Furthermore, Kerr testified that she never reviewed the survey, she

did not know what the survey said or how it was presented, and the survey was not initiated by her

or the school board. There is also no evidence that the school board relied upon the survey in its

decision not to renew Gielda’s contract, and, even if there were, Gielda does not demonstrate how

that would be probative of gender discrimination in his case.

       As for Kerr’s failure to provide Gielda with more time to correct his performance after his

second year review, Gielda does not demonstrate how this proves the district’s reasons were

pretextual. Gielda has not contested the fact that he received negative performance reviews at the

middle school. The issue is not, as Gielda suggests, a matter of having insufficient time to correct

his performance. Indeed, the record shows that Gielda had numerous opportunities to correct the

problems Kerr brought to his attention, but either failed to or chose not to do so. Gielda’s claim that

he did not have enough time to correct his problems after the last of many negative reviews does not

prove pretext.



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          Bangor presented sufficient evidence to demonstrate the absence of any genuine issue that

it had a legitimate, nondiscriminatory reason to not renew Gielda’s contract and that Gielda failed

to show the reason was a pretext to mask gender discrimination. Gielda, in turn, failed to

demonstrate a genuine issue of material fact that the articulated reason given by the school board was

pretextual and not the actual motivating factor for his non-renewal Accordingly, the district court’s

ruling is affirmed with respect to Gielda’s Title VII and ELCRA claims.

          B. Gielda’s Unfair Labor Practice Claims Fail as He Did Not Prove that
             the School Board’s Decision Was Motivated By His Participation in a
             Concerted Activity.

          In his second assignment of error, Gielda claims that the non-renewal of his contract was

motivated in part by his participation in the October 2007 contract negotiations, which he alleges

constitutes a concerted activity protected under the Taft-Hartley Act, 29 U.S.C. § 141, et seq and

PERA, Mich. Comp. Laws § 423.201, et seq. We affirm the district court’s ruling in regard to these

claims.

          Section 157 of the Taft-Hartley Act provides that “[e]mployees shall have the right to

self-organization, to form, join, or assist labor organizations, to bargain collectively through

representatives of their own choosing, and to engage in other concerted activities for the purpose of

collective bargaining.” 29 U.S.C. § 157. Section 158, in relevant part, makes it unlawful for an

employer to either “interfere with, restrain, or coerce employees in the exercise of the rights

guaranteed in section 157 of this title” or, “by discrimination in regard to hire or tenure of

employment or any term or condition of employment, to encourage or discourage membership in any

labor organization.” 29 U.S.C. § 158(a)(1) and (3). PERA was written with similar language.

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Compare 29 U.S.C. §§ 157–58, with Mich. Comp. Laws §§ 423.209–210. Because claims under

Taft-Hartley and PERA are virtually identical, both federal and state court decisions may be used for

guidance. See Mich. Emp’t Relations Comm’n v. Reeths-Puffer Sch. Dist., 215 N.W.2d 672, 675

(Mich. 1974) (“The parties have relied on and we may appropriately look to the federal precedents

for guidance.”).

       In determining whether an employee has been wrongfully terminated for engaging in

protected activities, the plaintiff bears an initial burden of showing that the protected activity was

a “motivating factor” in the adverse employment decision after the employer has stated the employee

was fired for legitimate reasons. Int’l Union, United Auto., Aerospace & Agr. Implement Workers

of Am. (UAW), AFL-CIO v. NLRB, 514 F.3d 574, 585 (6th Cir. 2008). If the plaintiff can

successfully establish the protected activity was a “motivating factor,” then the employer must show

that the adverse employment decision would have occurred even if the employee had not engaged

in the protected activity. Id.; see also NLRB v. Talsol Corp., 155 F.3d 785, 797–98 (6th Cir. 1998).

       The prima facie case for discriminatory motive requires the plaintiff to show “that (1) the

employee was engaged in activity protected under the Act, (2) the employer knew of the activity, and

(3) animus toward the protected activity motivated the employer’s adverse action.” NLRB v. Consol.

Biscuit Co., 301 F. App’x 411, 421 (6th Cir. 2008) (quoting Ctr. Const. Co., Inc. v. NLRB, 482 F.3d

425, 435 (6th Cir. 2007)). The employer’s discriminatory motive may be shown through direct and

circumstantial evidence, ITT Auto. v. NLRB, 188 F.3d 375, 388 (6th Cir. 1999), and a number of

factors may permit the inference of discrimination, including:



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       the company’s expressed hostility towards unionization combined with knowledge
       of the employees’ union activities; inconsistencies between the proffered reason for
       discharge and other actions of the employer; disparate treatment of certain employees
       compared to other employees with similar work records or offenses; a company’s
       deviation from past practices in implementing the discharge; and proximity in time
       between the employees’ union activities and their discharge.

NLRB v. Gen. Fabrications Corp., 222 F.3d 218, 226 (6th Cir. 2000) (quoting W.F. Bolin Co. v.

NLRB, 70 F.3d 863, 871 (6th Cir. 1995)).

       Applying these principles, it is clear that Gielda cannot establish that Bangor’s alleged

animus towards his participation in the collective bargaining negotiations motivated the school board

not to renew his contract. Gielda has quoted only one paragraph from Kerr’s testimony at the April

23 meeting in support of his Taft-Hartley and PERA claims. This paragraph alone does not reflect

that the school board was hostile towards unionized teachers or administrators. Additionally, the

decision of non-renewal is consistent with the—ultimately unsuccessful—attempts of Kerr to help

Gielda to improve his performance as principal. Notwithstanding Gielda’s assertions to the contrary,

the undisputed evidence reflects that Gielda and Robb were afforded the same options for

comparable unsatisfactory work: both had the option either to resign or to go through a formal

non-renewal process. Robb was terminated differently because Gielda chose not to tender a letter

of resignation as Robb did. Furthermore, Gielda failed to provide evidence showing that the school

board deviated from any past practices, such as allowing a principal more than two years to correct

ongoing performance issues.

       Most fatal to Gielda’s claim is the amount of time between his participation in the concerted

activity and the adverse employment decision. The negotiations took place on October 10, 2007.


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The board’s decision to not renew Gielda’s contract was made during the special meeting held on

April 23, 2009, a full eighteen months after the negotiations. At the meeting, Kerr cited Gielda’s

participation in the negotiations, not for the fact that he participated in a concerted activity, but for

the manner in which he participated in the activity and how it is illustrative of his lack of

interpersonal skills. As the district court correctly observed, no reasonable juror could conclude that

Kerr’s comment about Gielda’s behavior during the negotiations led the school board to not renew

his contract for any reason other than Gielda’s persistent inability to cooperate with colleagues.

        Furthermore, even if Gielda could somehow establish a prima facie case for discriminatory

motive, Gielda’s claim would still fail because, based upon the record before the Court, Bangor

could readily demonstrate that Gielda’s non-renewal would have occurred whether or not he

participated in negotiations. As discussed above, Gielda received numerous complaints about his

work throughout his two years as a principal. His performance did not improve despite a number

of attempts to correct the problems, including annual performance evaluations and a transfer to the

elementary school. There can only be one reasonable conclusion: the school board would not have

renewed Gielda’s contract after Kerr testified at length about Gielda’s unsatisfactory record whether

or not he belonged to a union or participated in concerted activities.

        Bangor demonstrated that Gielda was not renewed as a principal because of his unsatisfactory

performance. Gielda failed to demonstrate the existence of a genuine issue that his participation in

union contract negotiations was a motivating factor in the school board’s decision to not renew his

contract.   The sole quoted passage that Gielda relied upon to show discriminatory motive



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demonstrated his ill-suited personality rather than any anti-union bias. The district court’s order is

therefore affirmed with respect to Gielda’s labor practice claims.

                                       IV. CONCLUSION

       For the foregoing reasons, the Court affirms the district court’s order granting summary

judgment for Bangor.




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