An Arlington County pre-kindergarten school teacher saw his claim of gender discrimination rejected by a federal court when the County did not renew his contract due to poor performance. In Ostrem v. Arlington County School Board, Judge Hilton of the United States District Court for the Eastern District of Virginia granted summary judgment to the school board, concluding that the plaintiff had failed to establish a prima facie case of employment discrimination.
The plaintiff, Nicholas Ostrem, was a pre-kindergarten special education teacher at Carlin Springs Elementary School in Arlington. He was employed pursuant to annual contracts, each of which stated that it “did not constitute a guarantee of employment for the following year.” Based upon a series of classroom observations by a variety of school staff and his resistance to the feedback he was provided, on May 23, 2018, Ostrem was notified that his contract would not be renewed for the 2018-2019 academic year. Ostrem filed suit under Title VII, alleging that he had been subjected to unlawful gender discrimination.
Judge Hilton rejected Ostrem’s claims and granted summary judgment to the defendant school board for three reasons. First, it was undisputed that Ostrem was not meeting the school’s legitimate expectations, and it is the perception of the decision-maker, not the employee, that determines if the employee is performing satisfactorily. Judge Hilton noted that Ostrem reacted “defiantly” to performance feedback, dismissing the criticism he received as “pettifogerous” (i.e., petty or trifling).
Judge Hilton also found that Ostrem had not suffered any adverse employment action, since he was not entitled to have his contract renewed for another year. Additionally, Ostrem had failed to identify a similarly situated female comparator who had been treated better than he had.
The Ostrem decision is a good reminder of the “business judgment” rule in employment cases. As Judge Hilton explained, “it is well-established that a court is not a super-personnel department weighing the prudence of employment decisions.” Where, as here, the employer has well-documented evidence of what it deems to be poor performance, the employer can often have the suit dismissed on summary judgment.
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