RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 38]
Plaintiff Patricia Grey asserts claims of unlawful discrimination based on Title VII (42 U.S.C. § 2000e et seq.) the Connecticut Fair Employment Practices Act, Conn. Gen.Stat. § 46a-60(a)(l) (“CFEPA”), and 42 U.S.C. § 1983, and common law negligent infliction of emotional distress. Defendants City of Norwalk Board of Education (“Board”), Superintendent Victor Herbert, and now-former Deputy Superintendent Greg Riccio (hereinafter referred to as “defendants”) move for summary judgment. For the following reasons, the motion is granted in part and denied in part.
I. BACKGROUND
Plaintiff Patricia Grey, PhD, an African-American female, served as the Norwalk Public Schools’ Director of Curriculum and Assessment from July 1994 until September 1999. She contends that she suffered in a hostile work environment and was ultimately constructively discharged from her position with the District because of a series of incidents between July 1998 and her resignation in September 1999. Grey describes the series of incidents detailed below. 1
Herbert became the District Superintendent in July 1998. Soon after, the position of Deputy Superintendent became available. Grey approached Herbert about the job, but Herbert told her “she should not apply for the position.” Aff. of Patricia Grey, PL’s Rule 56(a)(2) Statement, Ex. B, (“Grey Affidavit”) at ¶ 5 [Dkt. No. 39]. Herbert placed her on probation for not meeting her job responsibilities. Id. at ¶ 22. Caucasians with fewer responsibilities, which were not being met, were not put in any type of a probationary process. Id.
Herbert hired Riccio diming the fall of 1998. Shortly after Riccio took over the Deputy Superintendent position, he approached Dr. Grey and told her that she should “look out for yourself’ and start trying to find a Superintendent position at another school district or with a private corporation. Id. at ¶ 13. In January 1999, Riccio told Grey that her position was being eliminated at the end of the 1998-99 school year. Id. at ¶ 28.
On or about January 25, 1999, Grey learned that Herbert had asked his secretary to type a letter notifying Grey that she was being terminated. When Grey confronted Herbert, he denied the charge. Id. at ¶ 30.
Grey claims that the administration also gave her the responsibilities of three supervisors who were eliminated or had assignments removed from them, but did not give her extra secretarial support even though two of those supervisors had worked with full-time secretaries. Id. at 1; Grey Aff. at ¶ 2.
In a meeting on January 26, 1999, Herbert eliminated all of Grey’s responsibilities except oversight for elementary education.
Id.
at ¶ 20. Herbert said that “perhaps [Grey] could do that one thing well.” Aff. at ¶ 21. He said in a January
In March, Riccio interrupted a meeting of district principals chaired by Grey and demanded to discuss an item not on the agenda. Grey saw this as a usurpation of ■her authority in front of her subordinates. Id. at ¶ 31. These actions never occurred with white male administrators in the district. Id. at ¶ 31.
During the time from January to June 1999, Herbert also sent Grey petty reprimands that were not sent to. white male employees. Id. a^34. Grey received.a positive evaluation in June 1999, with a few noted areas for improvement. Riccio, “Cabinet Self-Evaluation,” Defs’ Local Rule 9(c)(1) Statement [Dkt. No. 36], Ex. E.
Many people, including Board of Education President Rosa Murray, advised Grey to contact an attorney, suspecting that she was the victim of racial discrimination. When a special Board meeting was scheduled in June 1999, about 50 community members fearing termination of Grey appeared at the meeting to support her. Herbert cancelled the meeting. Grey Aff. at ¶ 35.
Grey further alleges that she was the only one of her colleagues not allowed to “cross-train secretaries” for different responsibilities and that she was not compensated for extra technology-related responsibilities, though a white, male colleague was. Id. at ¶ 11.
Herbert informed Grey on July 15,1999, that he wanted to buy out her contract. Id. at ¶ 42. Herbert said to consider herself “finished” and not to come to work. Grey insisted on remaining at work until a separation agreement was reached. Id. at ¶ 42, 46.
Herbert suggested on July 28,1999, that she prepare a letter of resignation and outline proposed separation terms for the Board. Id. at ¶ 44. Grey refused to prepare the letter, id., but did compose a memo setting forth proposed separation terms. Defs.’ Local Rule 9(c)(1) Statement, Ex. K [Dkt. No. 36],
The Board refused to accept a separation proposal at its August 31, 1999 meeting, in which the Board met with Herbert while Grey remained outside. Grey Aff. at ¶ 45. Afterwards, Board President Murray told Grey that the Superintendent had told the Board that Grey had approached him and proposed the buyback, and had also not shared his memos of July 15 and July 28 with the Board. Id. at ¶ 45.
In September, Grey contends that the aggregation of these events pushed her to the point of being physically and emotionally unable to return to work at Norwalk. She provided the Board with notice on September 16,1999. Id. at ¶ 46.
Grey filed an EEOC claim on March 8, 2000, alleging discrimination based on race, color, sex, and age. Pl.’s Mem. and Rule 56(a)(2) Statement, Ex. M [Dkt. No. 39], She also filed claims with the CHRO. Id. at 15; Defs.’ Local Rule 9(c)(1) Statement, Ex. N [Dkt. No. 36],
Grey filed this action on October 20, 2000, alleging race, national origin, sex, and age discrimination in violation of Title
II. DISCUSSION
A. Standard
The role of the court on summary judgment is “not to try issues of fact, but only to determine whether there are issues of fact to be tried.”
Vann v. City of New York,
The plaintiffs, however, cannot escape summary judgment merely by asserting that unspecified disputed material facts exist or through conjecture or speculation.
Harlen Assocs. v. Inc. Vill. of Mineola,
B. Title VII Claims
Grey claims that the defendants discriminated against her based on her race, sex, age, and national origin, in violation of Title VII. The defendants argue that (1) age discrimination is not cognizable under Title VII; (2) that the actions complained of do not support an inference of constructive discharge; (3) that the harassment alleged by Grey is insufficient to support a hostile work environment claim; and (4) that Grey did not exhaust her national origin claim.
Under Title VII, a claim for employment discrimination is governed by the burden shifting analysis of
McDonnell Douglas Corp. v. Green,
1. Proper Title VII Parties (Individual Defendants)
As an initial matter, the court notes that a Title VII claim cannot be brought against individual supervisory employees, but only against the employer itself.
See, e.g., Looby v. Cit
y
of Hartford,
2. Age Discrimination/Title, VII (Board)
Next, the court agrees with the defendants that age discrimination is not within the scope of Title VII. That statute makes it “an unlawful employment practice” for an employer to “discharge or otherwise discriminate against any individual ... because of such individual’s race, color, religion; sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). See also Barbara Lindemann and Paul Grossman, Employment Discrimination Law 5 (3rd ed.1996). The Age Discrimination in Employment Act, 29 U.S.C. § 621-34 (“ADEA”), prohibits age discrimination, but Grey does not reference the ADEA in her complaint or papers. Thus, summary judgment is granted on Grey’s Title VII age discrimination claim.
3.National Origin Discrimination/Title VII (Board)
a. Exhaustion
The Board argues that Grey’s claim of discrimination on the basis of national origin is barred because she failed to raise it before the EEOC. A plaintiff must raise claims of discrimination at the applicable administrative agency before pursuing those claims in federal court. A claim is exhausted if it was actually raised or is “reasonably related” to a claim raised.
Butts v. City of New York Dep’t of Housing Preserv. and Dev.,
The Second Circuit has recognized three situations in which a claim is “reasonably related.” First, a non-exhausted claim is “reasonably related” when its omission is essentially due to “loose pleading,” and when the claim is within the scope of the investigation which would reasonably be expected to grow out of the agency claim.
Butts,
Because Grey’s unexhausted national origin claim arises out of the same incidents as those alleged, suggesting a different basis for those same events, only the first type of “related” claim could be at issue here. Grey raised discrimination on the basis of sex, race, age, and color with the EEOC. Pl.’s Mem. and Rule 56(a)(2) Statement, Ex. M [Dkt No. 39]. In her complaint in this action, Grey states that she is “of African descent” and that the defendants also discriminated against her on that ground.
While “race” and “color” are somewhat related to “national origin,” they are distinct bases for discrimination. While the investigation into her claim would have encompassed the way she was treated versus non-black employees, male employees, or younger employees, a national origin claim would in theory entail an investigation into how other employees of non-African descent were treated.
The content of Grey’s Title VII allegations in the complaint, however, seems to treat discrimination against her because of her national origin as identical to discrimination against her because of her race.
See
Compl. at ¶ 38 (“The City of Norwalk Board of Education treated the Plaintiff differently than other similarly situated white male administrators and younger administrators”). Fact-wise, this would make the claims related.
See Forbes v. State Univ. Of New York at Stony Brook,
b. Prima Facie Case
However, Grey does not present any evidence to support a prima facie case of national origin discrimination. All Grey alleges is that she is of “African descent”; she then presents evidence that she was discriminated against because of her race. See, e.g., Grey Aff. at ¶ 10, 11, 22, 31, 34 (“Caucasian male,” “white male”). Even if the court assumes that her statement that she is “African-American,” id. at ¶ 22, establishes her membership in a protected “national origin” class, and even if it does set forth a prima facie ease of race discrimination, it does not set forth circumstances giving rise to an inference of discrimination on the basis of “national origin.” Without any evidence to support that basis, summary judgment on the plaintiffs Title VII national origin claim is granted.
4. Constructive Discharge/Title VII (Board)
The defendants also argue that the actions of which Grey complains did not rise to the level of intolerability necessary to establish constructive discharge. The court disagrees and denies summary judgment on this claim.
To present a prima facie case of discriminatory discharge action under Title VII, Grey must show that she was either actually or constructively discharged, and that “the discharge occurred in circumstances giving rise to an inference of discrimination on the basis of her membership in a protected class.”
Terry v. Ashcroft,
Constructive discharge occurs when an employer “intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily.”
Id.
at 151-152 (citing
Kirsch v. Fleet St., Ltd.,
Grey presents a variety of circumstances that, combined, she argues made her situation “intolerable,” including: the repeated threat that her position would be eliminated; a rumored letter announcing her termination; Riccio’s public usurpation of her authority in front of her subordinates; the administration’s manipulation of her curricular responsibilities; petty reprimands; and Herbert’s suggestion that the District buyback her contract and his subsequent comment that she should consider herself “finished.” Together, these circumstances support a reasonable inference of constructive discharge. On Grey’s version of the facts, the fact-finder could determine that it was reasonable for her to assume that she was “compelled to leave.” Id.
Moreover, threats of termination alone are sometimes sufficient to show constructive discharge.
See Lopez v. S.B. Thomas, Inc.,
Grey’s version of the facts, if believed, would also establish that the Board deliberately sought to compel her to leave her position.
See Stetson v. NYNEX Serv. Co.,
b. Inference of Discrimination
1.
Race.
Grey presents a variety of facts to support her racial discrimination claim. She alleges, and attests in her affidavit, that Riccio usurped her authority at a meeting with her subordinates, and that she discussed the issue of racial discrimination with him then. She further contends that the Board of Education treated her differently than other similarly situated white male administrators. She alleges that during the period January through June 1999, she received support from Board of Education members and
“[D]irect evidence of discrimination is not necessary.”
Lizardo v. Denny’s, Inc.,
2.
Sex.
Grey’s sex discrimination claim presents more difficulty. As with race discrimination, the initial burden in a sex discrimination claim is on the plaintiff to establish a prima facie case of discrimination.
Weinstock,
Grey has not come forward with evidence to support a prima facie case of sex discrimination. She repeatedly alleges that “white males” were treated differently and points out that a white male colleague was compensated for his technology responsibilities while she was not. She gives no additional evidence to support her case and provides no comments based on sex. “[A] plaintiff must proffer some admissible evidence of circumstances that would be sufficient to permit an inference of discriminatory motive.”
See Bennett v. Watson Wyatt & Co.,
c. Board’s Liability
As the discussion above suggests, there is also a sufficient basis for holding the Board liable under Title VII for the discrimination, though the defendants have not raised this issue. Under Title VII, an “employer” is defined as “a person engaged in an industry affecting commerce ..., and any agent of such person.” 42 U.S.C. § 2000e(b) (emphasis added);
see
Here, Grey alleges discriminatory conduct by the District’s top officials, the Superintendent and Deputy Superintendent. She further alleges that Board members, including the Board President, told her that they thought she was a victim of discrimination and that she should get a lawyer, and that they were aware that Herbert had lied to them about the circumstances of the buyback. By Grey’s facts, then, the Board was explicitly aware of the discrimination and allowed it to continue, then ratified her constructive discharge. See also infra at 330-31 (discussing Board’s liability under § 1983).
For all these reasons, summary judgment on Grey’s Title VII constructive discharge claim against the Board is denied with regard to race discrimination; granted with regard to sex, age, and national origin discrimination.
5. Title VII Hostile Work Environment Claim (Board)
The Board also seeks summary judgment on Grey’s hostile work environment claim. “A hostile work environment claim requires a showing [1] that the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, and [2] that a specific basis exists for imputing the objectionable conduct to the employer.”
Alfano v. Costello,
a. Hostile Work Environment Showing
Demonstrating that conduct was sufficiently severe to alter the terms of the plaintiffs employment has “objective and subjective elements: the misconduct must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive.”
Terry,
As with constructive discharge, the court examines the totality of the circumstances.
Id.
(quoting
Richardson v. New York State Dep’t of Corr Serv.,
The Second Circuit recently clarified the showing necessary for establishing a hostile work environment claim in
Terry v. Ashcroft,
Grey alleges that her supervisors harassed her in several ways that altered her job for the worse. She claims, among other things, that Herbert and Riccio manipulated her responsibilities, undermined her in front of her subordinates, sent her petty reprimands, and did not allow her the customary secretarial support for her duties, trying to set her up to fail. While this type of harassment may be different than, for instance, that alleged in
Richardson,
Grey’s claims also differ from many hostile work environment claims because she does not allege any explicitly racial or sexist remarks as part of her evidence. Instead, she Grey merely alleges that she was treated differently from white, male supervisors. Though hostile environment claims often involve racial or sexual remarks,
see, e.g., Richardson,
b. Inference of Discrimination
1. Sex. As discussed above, Grey’s bare allegation that she was treated differently from males and her identification of one white male whom she alleges was compensated for technology responsibilities while she was not is insufficient support for her case to go to the jury on sex discrimination. See supra, 325-26. She provides no additional evidence to support her case, provides no comments based on sex, and does not even identify the other similarly situated “males” who were treated differently. As a result, she has not created an issue of fact on this claim.
As a result, the defendants’ motion for summary judgment on Grey’s Title VII hostile work environment claim against the Board is denied as to race discrimination, and granted as to sex, age, and national origin discrimination. 4
C. Connecticut Fair Employment Practices Act
1. Individual Claims
As with Title VII, Grey cannot assert claims against individual supervisors under CFEPA.
See Perodeau v. City of Hartford,
2. Claims Against the Board
The defendants argue that summary judgment should also be granted on Grey’s CFEPA claims against the Board. They content that, as with Grey’s Title VII claims, she has failed to show constructive discharge, and has also “failed to establish that she suffered from discriminatory harassment sufficient to alter the conditions of her workplace.” Defs.’ Mem. In Supp. Of Summ. J. at 2.
The court looks to federal employment anti-discrimination law for guidance in enforcing Connecticut’s anti-discrimination statute.
See Brittell v. Dept. of Corr.,
Grey has also, for the reasons discussed above in relation to her Title VII claims, produce sufficient evidence to proceed to trial on her race discrimination hostile work environment claim. Thus the defendants’ motion for summary judgment on that CFEPA hostile work environment race discrimination claim is also denied.
Grey has not presented sufficient evidence to create a prima facie case on her
Unlike under Title VII, age discrimination is actionable under CFEPA. See Conn. Gen.Stat. § 46a-59. However, the plaintiff has presented absolutely no evidence on that claim: no evidence from which a jury could infer that any action of the defendants was based even in part on age, and only one repeated bare allegation that younger employees were treated differently. Compl. at ¶ 38. As a result, summary judgment on Grey’s CFEPA age discrimination claims is granted.
Finally, for the reasons discussed above in relation to Title VII, Grey has not made the required prima facie showing as to national origin discrimination. See supra at 323. (discussing national origin showing required by Title VII to state a prima facie case). Summary judgment is granted on that claim.
D. Section 1983 Claims
The defendants also move for summary judgment on Grey’s § 1983 claims in Count 3 of the Complaint, arguing that she has failed to allege that the defendants intentionally sought to discriminate against the class of plaintiffs of which she is a part. The defendants further argue that, in any case, Grey has not demonstrated that the Board was involved in the discrimination such as to be held liable under § 1983, and that Herbert and Riccio are entitled to qualified immunity.
1. Pleading Requirements
The defendants claim that Grey has not properly pled her § 1983 equal protection violation claim, and that as a result it must fail. This argument is without merit.
A plaintiff may plead concurrent violations of Title VII and § 1983 (or, indeed, only § 1983 claims) against a municipal government body as long as the constitutional claims allege the violation of a constitutional right.
See Annis v. County of Westchester,
The defendants argue that Grey has failed to allege an “intent to disadvantage all members of a class that includes plaintiff,” as required to state an equal protection claim.
Weixel v. Board of Educ. of City of New York,
Here, however, Grey does allege an intent to disadvantage the groups of which she is a member. She alleges at the beginning of her complaint that she was “discharged after several months of race, sex, age and national origin discrimination,” Compl. at ¶ 1, and in her support of her equal protection claim, alleges that the “three Defendants discriminated against Plaintiff on the basis of her race, national origin, and sex by harassing her and ultimately causing her constructive discharge from the school district in September 1999.” Compl. at ¶ 49. This and the rest of Grey’s § 1983 pleading is sufficient.
2. § 1983 Race Discrimination Claim
Grey claims that the defendants discriminated against her because of her race, in violation of the fourteenth amendment to the Constitution. “A state and its instru-mentalities may not deny ‘any person within its jurisdiction the equal protection of the laws.’ ”
Sound Aircraft Servs., Inc. v. Town of East Hampton,
Employment discrimination claims brought under § 1983 are analyzed according to the same standards as used to evaluate Title VII claims.
See Jessamy v. City of New Rochelle, New York,
As the court concluded with regard to the Title VII claims, Grey presents sufficient facts in support of her racial discrimination claim to state a prima facie case. See supra at 324-25. Grey has thus presented ample evidence to proceed to trial on her equal protection claim of race-based discrimination.
a. § 1983/Race (Board)
The Board may not be held liable under § 1983 for the actions of individuals solely on a theory of respondeat superior.
Jeffes v. Barnes,
Here, Grey alleges that Board members advised her to get a lawyer because she was a victim of racial discrimination, and that one member commented that “he predicted that all minorities would be eliminated from the Central Office by Victor Herbert.” Grey Aff. at ¶ 39. The Board failed to act to remedy the discrimination, and eventually ratified what Grey claims was her constructive discharge. These facts, if proven to the jury, áre a sufficient basis to find the Board liable for Herbert’s and Riccio’s conduct under § 1983.
b. Qualified Immunity/ § 1983/ Race (Riccio and Herbert)
Finally, the defendants argue that Riccio and Herbert are entitled to qualified immunity on Grey’s § 1983 race discrimination claim.
5
A government" official sued in his individual capacity is entitled to qualified immunity for a constitutional violation if, considering the record as construed in the plaintiffs favor, the constitutional right in question was not “clearly established” at the time of the conduct, or if the official’s action was objectively reasonable.
See Saucier v. Katz,
Grey’s right to be free from discrimination because of her race was well-established at the time of the events that gave rise to this suit.
See, e.g., Hazelwood Sch. Dist. v. United States,
3. § 1983 Sex and National Origin Discrimination (All Defendants)
As discussed above, the plaintiff has not put forward sufficient evidence to support a prima facie case of sex discrimination or national origin discrimination. See supra at 322-23, 325-26. Summary judgment is thus granted on Grey’s § 1983 national origin and sex discrimination claims.
E. Negligent Infliction of Emotional Distress (All Defendants)
The defendants also move for summary judgment on Grey’s negligent infliction of emotional distress claim in ■ Count Four of the Complaint, arguing that the Connecticut Supreme Court’s decision in
Perodeau v. City of Hartford,
The defendants argue that Grey’s Count Four allegations do not reference her claim of constructive discharge. However, paragraph fifty-four, the first paragraph in Count Four, incorporates “the allegations contained in paragraphs 1 through 53 of the Complaint as though restated herein word for word,” thus incorporating Grey’s constructive discharge claim into Count Four. The question presented, then, is whether constructive discharge qualifies as termination of employment for purposes of a negligent infliction of emotional distress claim.
The application of constructive discharge to a claim of negligent infliction of emotional distress presents a novel issue in light of
Perodeau.
By limiting the scope
of
the negligent
infliction of
emotional distress tort to conduct occurring in the process of termination, the
Perodeau
court aimed to limit the reach of the tort.
Perodeau,
[E]mployees who fear lawsuits by fellow employees may be less competitive with each other, may promote the interests of their employer less vigorously, may refrain from reporting the improper or even illegal conduct of fellow employees, may be less frank in performance evaluations, and may make employment decisions such as demotions, promotions and transfers on the basis of fear of suit rather than business needs and desires. All of this conduct would contribute to a less vigorous and less productive workplace.
Id.
at 758,
Allowing an employee alleging constructive discharge to assert a negligent infliction of emotional distress claim does not implicate these concerns. In a constructive discharge case such as the one alleged by Grey, the employment relationship is already terminated, allegedly involuntarily. As a result, the effect of allowing the claim is no different than if the plaintiff had been actually discharged: there is none of the additional “chilling,” or “fear” that motivated the Connecticut Supreme Court to preclude the tort from being asserted in ongoing employment relationships. Moreover, in Connecticut, a “constructive discharge is effectively the legal equivalent of a discharge.”
Kilduff v. Cosential, Inc.,
However, the alleged conduct is not sufficiently unreasonable or wrongful to support the negligent infliction of emotional distress claim. Indeed, wrongful’ motivation is not enough to sustain the claim: “[t]he mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior.”
Parsons v. United Technologies Corp.,
Here, Grey alleges that Herbert lied to the Board about Grey’s buyback, telling them that it had been her proposal; that he had his secretary type her termination letter and then denied its existence; that Herbert told her she was “finished” and not to report to work, even though the buyback was not yet approved and completed. Moreover, Grey claims that these and other actions were based on her race. The allegations against Riccio involve warnings that her job would be eliminated, an accusation that he usurped her authority in front of her subordinates, and that he manipulated her curricular responsibilities and the associated funds so as to impede her job. The Board allegedly knew of the wrongfulness of their actions and ratified them. These activities, while wrongful, are not “sufficiently wrongful that the defendant should have realized that its conduct involved an
unreasonable
risk of emotional distress.”
Perodeau,
III. CONCLUSION
For the reasons discussed above, the defendants’ motion is GRANTED: on the First Cause of Action as to all claims against Herbert and Riccio, individually; on the age discrimination claim, national origin discrimination claim, and sex discrimination claim as to all defendants; on the Second Cause of Action, as to all claims against Herbert and Riccio individually, and as to Grey’s sex discrimination claim, age discrimination claim, and national origin discrimination claim as to all defendants; on the Third Cause of Action as to the sex discrimination claim and national origin discrimination claims against all defendants; and on the Fourth Count against all defendants. The remainder of the motion is DENIED. Claims remain against Riccio and Herbert for race discrimination in violation of the fourteenth amendment, pursuant to § 1983; and against the Board for constructive discharge and hostile work environment race discrimination in violation of Title YII and of the fourteenth amendment, pursuant to § 1983.
SO ORDERED
Notes
. On this motion for summary judgment, the court views the evidence in the light most favorable to the plaintiff.
. Proof of such a causal connection can be established through "evidence such as disparate treatment of fellow employees who en
. The defendants argue that Grey's contentions are belied by language in letters from Herbert to Grey and by the fact that he signed her contract for the 1999-2000 school year. Those differences create an issue of material fact, however, and go to the weight of the evidence, not its sufficiency.
See Kirsch,
. The actions of Riccio and Herbert are also attributable to the Board, though the defendants have not raised this issue with regards to Grey’s Title VII hostile work environment claim. "An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.”
Burlington Indus., Inc., v. Ellerth,
. The court only considers qualified immunity on the race discrimination claim because it is the only remaining § 1983 discrimination claim.