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Investigation scathes Story’s actions but finds they are not ‘legally actionable’

An investigation into a hostile work environment complaint filed this summer by Suffolk Public Schools Superintendent Dr. John B. Gordon III against School Board member Sherri Story has found his allegations credible, though it said there was not enough evidence to support a “legally actionable” case based on race.

The investigation did, however, determine that because Story disclosed publicly that Gordon was the person who filed the complaint, that it “creates at least some risk of an actionable retaliation claim.”

The investigation “confirmed the substance of Dr. Gordon’s allegations” and noted a “highly contentious” relationship between the two of them. It could not prove, however, that any of her actions toward Gordon were based on race.

“We … express no judgment as to either the origin of the optics of racial bias or whether Representative Story is, in fact, racially-biased, as we already determined there is no direct evidence of racial discrimination.”

The report, based on the “overwhelming perception” that she treats Dr. Gordon and other administrators aggressively and inappropriately, recommended that the board refer Story for management and leadership training, especially in areas of maintaining the confidentiality of board matters. And, given the “overwhelming perception” that Story’s behavior appears to be biased toward Black people, the report recommended Story receive racial sensitivity training.

Gordon filed the complaint against Story July 23, alleging that she “has engaged in acts of confrontation, retaliation, and other behavior which have negatively affected (his) ability to lead Suffolk Public Schools and which have created a hostile work environment,” further alleging that she had abused her power and role as a board member to “circumvent authority … and routinely (break) confidentiality.”

“Dr. Gordon alleges that Representative Story has sought to harm, intimidate, or humiliate him and has not respected him as a person of color, as a professional, or in his role as Superintendent,” the investigative report from the McGuireWoods law firm of Norfolk states. “He maintains that Representative Story targets leaders of color including himself, administrative leaders who report to him, and the School Board Attorney on the basis of their race.”

The law firm interviewed 22 witnesses in its investigation, including Gordon, board attorney Wendell Waller, Story — in the presence of her attorney — the other six members of the board and 13 others whose names were redacted from the report. Elsewhere in the report, it’s clear that former Superintendent Dr. Deran Whitney was one of those.

It also reviewed thousands of pages of documents, including the minutes, audio and video of board meetings, documents related to the board’s evaluation of Gordon, email correspondence, board policies and practices to include its norms and protocols, transcripts from the trial related to Story’s lawsuit against the board for Freedom of Information Act violations, Story’s Facebook posts and videos, her personnel file from King’s Fork High School and other documents provided to the law firm during the investigation, which has cost at least $40,000.

The board voted Dec. 15 to make the complaint and its findings public, and a copy of the redacted report is available on the school division’s website.

The buildup to the filing was months, if not more, in the making.

The Nike/BSN contract

Gordon did not specifically reference the Nike/BSN contract in his complaint, but said Story had a negative reaction to it when Gordon obtained a contract with BSN/Nike for Suffolk Public Schools in January.

He said her attitude toward him changed after he presented the contract — allowing SPS students and staff to buy Nike/BSN branded school gear at a discount, with a rebate going to the school division — to the board.

The contract also provided for goods and monetary bonuses for the division’s athletic teams. Gordon said, according to the report, that Story refused to accept the Nike shirt presented to each board member. Her negative reaction to the contract “was confirmed by many of the interviewees, including all other representatives.”

Several people interviewed in the investigation said she was opposed to Nike because of its relationship to Colin Kaepernick, a former NFL quarterback who protested racial injustice by kneeling during the national anthem before games in 2016. He has not played in the NFL since that season after opting out of his contract.

“Upon inquiry, Representative Story confirmed her general opposition to Nike both because it uses sweatshop labor and because of its association with Colin Kaepernick and other athletes whose positions are contrary to her beliefs,” the report states.

Story also wanted a copy of the contract, which Gordon declined on grounds that he was allowed to enter into any contracts under $100,000. She ultimately obtained the contract through a FOIA request but denied questioning Gordon’s authority to enter into it.

Teacher dispute

The first example Gordon raised in Story’s alleged efforts “to harm, intimidate or humiliate [him]’ involved a dispute between Gordon and a former teacher at King’s Fork Middle School.

Though the name of the teacher was redacted from the report, based on examples cited in the report, and based on the Suffolk News-Herald’s previous reporting that confirms those examples, the former teacher is Andres Castro.

The dispute involved issues the teacher had with the discipline at the school and Castro, whose last day of employment was Feb. 28, also questioned Gordon’s leadership, referring to him as a “small-minded messiah superintendent” in an email sent to the entire school division, and noted that “my advice to Mr. Gordon is; If he dresses the Steve Harvey (suits) part, then play the part and take care of his teacher, or at least listen to their concerns.”

Gordon responded to him and also sent his email to the entire school division, saying Castro had “a very skewed version of the facts,” was unprofessional and that his behavior and stereotypes showed “self-absorbance, bigotry and hatred toward putting kids first.”

Story, according to the complaint, supported Castro and encouraged him to pursue his issues with Gordon publicly. She also requested a special board meeting to discuss the superintendent’s response, the investigative report citing Story as saying it was inappropriate.

Castro and Story both reached out to the News-Herald about looking into the matter, and it spoke with both of them, along with Gordon, who provided documentation to the newspaper in response to a FOIA request. The newspaper also attempted to contact other board members, but it ultimately did not run a story about the matter.

Story, in the report, said she was concerned about Gordon and thought his response “would continue ‘the culture of fear’ for teachers, which she hoped he would change.”

“The majority of the interviewees — including those who believed that Dr. Gordon should have not responded to the entire school division — felt that Representative Story’s actions in this matter were inappropriate because they created the perception that she did not support Dr. Gordon and that she wanted to ‘get rid of him,’” the report stated.

That’s something Story denied, according to the report, but board member Tyron Riddick said that Story had shown him a “hit list” that included former superintendent Dr. Deran Whitney and other school administrators, all Black. Another board member, Karen Jenkins, said Story showed her a listing of administrators during their 2018 board election campaigns she thought should be removed, including Whitney, who retired in 2019. Whitney, according to the investigative report, said Story played no part in his resignation, but did interfere in daily operations and made his role as superintendent more difficult.

Story dispute with board member Dr. Judith Brooks-Buck

Gordon also cited another incident when Story emailed him March 19 demanding to know about a conversation she alleges took place between Brooks-Buck and another person whose name was redacted in the report. Story “allegedly was concerned that her name came up.”

The person had previously emailed Story and board member David Mitnick, concerned about a mandatory staff meeting shortly after Gov. Ralph Northam had closed schools in the state, according to the report. Story said she feared bringing her concerns directly to Gordon because of the recent incident and responded to the person, agreeing with their concerns and forwarded the person’s email to Gordon and the rest of the board.

Gordon, according to the report, said Brooks-Buck was upset that Story had responded directly to the person because she was in Brooks-Buck’s borough.

The day prior to Story’s email to Gordon, someone (whose name is redacted in the report), had emailed Story and Brooks-Buck and said she “did not mean any disrespect in sharing her concerns” to Story, but began “to feel like a bit of a pawn in something much larger.”

Story forwarded the email to Gordon and said if she had been talked to in that manner, she would want to know what was said about her.

Gordon replied to Story and said she had violated the board’s norms and protocols by communicating directly with the person, and that if she wanted to know what was said between her and Brooks-Buck, Story would have to ask Brooks-Buck.

In Gordon’s complaint, he said Story retaliated against him immediately by discussing his salary and contract publicly during the board’s March 19 special meeting. Chief Financial Officer Wendy Forsman, during the meeting, told Story that there were technical aspects to Gordon’s contract that shouldn’t be discussed in open session, and the discussion ended.

During Story’s interview for the report, she said she didn’t understand a $10,000 line item for Gordon before the board had an opportunity to discuss his contract, and that was why she had mentioned it during the meeting. Story denied raising the issue of Gordon’s salary to retaliate against him for advising her that she had violated norms and protocols by communicating directly with an employee.

The board unanimously approved the $10,000 line item for Gordon at the March 19 special meeting, but Story continued to discuss Gordon’s salary publicly and posted his contract to her School Board Facebook page.

On May 24, two days prior to a board special meeting to vote on budget adjustments, Story emailed Gordon and Forsman asking for budget information. Gordon replied that he would not send the information because it would require more than 60 minutes to compile and the board had not approved it per its norms and protocols. He also told her that including Forsman in his request also violated those norms and protocols because Story did not discuss the matter with Gordon first before emailing Forsman.

Story replied that it wasn’t Gordon’s role to tell her who she could email, and included several statements cited in the investigative report, including the phrases “you are our employee and refusing a simple request from any board member is insubordination” and “it is not your role to question what I need.”

Story also said it was “deeply unsettling” that she had to file FOIA requests to get information she felt she should already have.

She continued to mention Gordon’s “purported $10,000 raise” and on June 12 and Sept. 30, posted his contract to her Facebook page. Gordon, for his part, said her public statements and posts about the $10,000 were not accurate and “were intended only to inflame the public,” something Story denied.

June 12 was the day after the board publicly censured Story for repeated violations of the board’s norms and protocols.

Story said she continued to post about Gordon’s salary and wanted to know how the $10,000 amount was calculated, also saying she considered his contract public and kept making public statements about it. She said she never got an explanation for it, though board chairwoman Phyllis Byrum and other board members, according to the report, said Story knew Gordon was not receiving a $10,000 base salary increase.

The investigation noted that Gordon received the same cost of living adjustment as other administrators and the addendum to his contract reflects a base salary of $181,500, a 1% increase over his previous base salary, and reflects 1% increases to his auto and cell phone allowances.

And though the investigation confirmed that her public statements about Gordon’s salary caused “a negative reaction” from the public and forced board members to answer questions about it, it did not confirm that Story’s public statements “were based on racial animus.”

The closed meeting confrontation

The board was to discuss Gordon’s evaluation during a closed portion of its July 9 meeting. The board, in the leadup to the evaluation, decided that it would not include Standard 7, which involved student achievement, because the Standards of Learning assessments did not take place during the 2019-2020 school year due to COVID-19. It also didn’t include it because Gordon had not been employed for a full year.

Because of that, a majority of the board felt there was not enough data to evaluate Gordon on that standard, according to the report. The board was to submit their evaluations by July 1 so the overall score could be calculated before the meeting. All but Story turned in their evaluations of Gordon in a timely manner, the report stated, though she did turn in evaluations for the board’s other two employees, the clerk and the attorney.

Story said she did not agree with excluding Standard 7, even though State Superintendent Dr. James Lane issued an executive order giving boards leeway in using that standard for teacher evaluations, and said there was sufficient data to include the standard.

The board voted 6-1 to use a modified evaluation form that did not include Standard 7, with Story the lone no vote.

The report said the other six board members in the closed meeting “provided a version of the events that occurred during the closed session consistent with Dr. Gordon’s allegations.”

At the beginning of the July 9 closed session, Story placed her evaluation in front of Gordon, who read it quickly while other board members discussed whether to consider it. Mitnick suggested it not be considered as part of the evaluation, and the other board members except for Story agreed because she did not submit it in time and because Gordon’s score had been calculated.

Story said she denied knowing her evaluation had been excluded from Gordon’s score until receiving his complaint.

After reading Story’s evaluation, Gordon returned it to Brooks-Buck and said he didn’t need a copy because it wasn’t going to be considered as part of his overall score. He also “expressed disbelief” because Story referenced Gordon’s family as part of her evaluation.

Though part of Story’s evaluation was redacted from the report, it indicated that Gordon’s contract did not require that his children enroll in SPS, only requiring that he live within the boundaries of the school division. Her evaluation of 24 out of 40 fell into the range of “developing/needs improvement,” while he received either “proficient” or “exemplary” scores from the other board members, including four perfect scores of 40.

After Gordon returned the evaluation, Story “became visibly angry” and was near Gordon while she began yelling at him, waving a hand in front of his face “in a confrontational manner” and walking up as if to leave the room, according to the report. Gordon stayed seated and Story calmed down only after Byrum loudly called out Story’s name.

“Several representatives stated that, at the time, it appeared as if Representative Story was going to hit or otherwise get violent with Dr. Gordon,” according to the report.

Story disputed that account, accusing Gordon of throwing her evaluation across the table and saying, “I don’t need that,” and adding that she thought she could discuss the evaluation with him. When she started to walk out, Jenkins asked if she was going to leave, and then Story decided she shouldn’t leave, the report stated.

Story, in open session, voted no on certifying the closed meeting, saying the last 10 minutes of the closed meeting “turned into an evaluation of me from the superintendent.” The board voted 6-1 to certify the closed meeting, and 7-0 on the contract addendum for a 1% cost of living increase for Waller and Gordon.

She also accused Riddick of recording the meeting and posting it on Facebook, and identified a witness who she said had watched the recording, the report stated. However, Riddick denied recording it, and the witness, who asked to remain anonymous, denied seeing any video or audio recording of a closed session anywhere.

The report said that because Story’s version of events differed substantially from the other board members, and that their recollections were consistent with Gordon’s, “the preponderance of the evidence supports Dr. Gordon’s recitation of events.” However, the investigation did not uncover evidence of her actions toward him being based on race.

The findings

The investigation “confirmed the substance” of Gordon’s allegations, but it did not uncover enough to establish a legally actionable hostile work environment based on race, which legally requires four factors — “unwelcome harassment, based on race, sufficiently severe or pervasive to alter the conditions of employment and crate an abusive atmosphere and some basis for imposing liability on the employer.”

“The preponderance of the evidence confirms that the relationship between Dr. Gordon and Representative Story is highly contentious,” the report states.

An “overwhelming majority” of those interviewed said Story speaks to Gordon “in a disrespectful manner” in public meetings and that she “tries to embarrass Dr. Gordon during meetings by questioning his judgment, decision-making and recommendations,” especially when she disagrees with them.

Story’s statements about Gordon’s contract, according to the report, “created a negative impression” of him, with most witnesses saying it “undermined Dr. Gordon’s position as superintendent.”

The report, however, said that while her actions “may be frustrating and unpleasant” to Gordon, “they have not, from an objective perspective, altered the terms and conditions” of his employment, and the investigation did not uncover any direct evidence that her actions toward Gordon are based on race, and no one in the investigation provided an example of a racist or race-based comment that she has made toward him.

The investigation also noted that Story was impressed by Gordon’s credentials when the board hired him and had him at or near the top of candidate rankings, which “could negate an actionable hostile work environment claim.” It noted that courts in the Fourth Circuit have recognized that someone who hires an employee with knowledge of that person’s race is not likely to discriminate against that employee because of his race.

It did say that Story revealing Gordon’s identity as the person who filed the complaint “could constitute an ‘adverse employment action’ for purposes of an actionable retaliation claim.”

“Although our investigation did not uncover any current (underlined) negative employment consequences to Dr. Gordon resulting from Representative Story’s disclosure, this does not mean that Dr. Gordon will not suffer such negative employment consequences in the future,” the report stated, citing an example of trying to obtain future employment with another school division.

The report said the investigation “revealed a general perception” that Story retaliates against Gordon whenever he challenges her actions or doesn’t give in to her demands. Her disclosing Gordon’s identity in the complaint — 10 weeks after she learned about it and a week after a discussion of it in a closed session — “could be construed as having a retaliatory motive and goal to embarrass Dr. Gordon publicly.”

Story, during her interview in the investigation, said her actions are not personal and designed to highlight her concerns with how the board approves contracts or holds and certifies closed sessions. She viewed Waller’s instructions during the Aug. 6 meeting to keep Gordon’s identity under wraps a “suggestion” and said that Gordon is “an appointee and thus a public figure.”

The investigation also “uncovered an overwhelming perception that Representative Story harbors racial biases and does not trust high-level African-American administrators.”

Story has said her questioning is aggressive but says she treats everyone equally.

“Regardless of Dr. Gordon’s legal employment status … Representative Story’s actions have created a commonly held opinion,” according to the report, “that she expects Dr. Gordon to follow her orders and publicly retaliates against him when he does not. Moreover, her actions heighten the risk of an actionable retaliation claim.”

The investigation “generally confirmed” the facts of incidents Gordon raised in his complaint or referenced during his interview, but “cannot conclude that … Story has created a legally actionable hostile work environment based on race.”