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Labor & Employment – Denial of extra pay not based on drama teacher’s race

By: S.C. Lawyers Weekly staff//March 10, 2022

Labor & Employment – Denial of extra pay not based on drama teacher’s race

By: S.C. Lawyers Weekly staff//March 10, 2022

Where a high school drama teacher alleged the school board failed to pay him for his tech work because of his race, but he had been paid a theater director supplement and he did not allege that any other performing arts teacher in the school system received more than one supplement, the school board prevailed on the claim.


Wendell Tabb, a longtime and successful drama teacher at Hillside High School in Durham, North Carolina alleged that the school board discriminated against him on the basis of race in refusing to hire another teacher in the drama department to assist him with tech work in connection with his staging of student performances or, alternatively, in refusing to provide him with additional compensation for the tech work that he performs. He also alleged that the school board discriminated against him on the basis of race when compensating him for his “extra-duty” work in connection with other events at Hillside High School.

The district court dismissed a portion of his complaint for failing to state a claim and, with respect to the remaining claims, granted the school board’s motion for summary judgment.

Motion to dismiss

Tabb had failed to allege plausibly that the school board’s failure to pay him a theater technical director supplement constituted race-based employment discrimination. While the complaint certainly alleged that Tabb worked “excessively” long hours, it did not allege that those hours were mandated by the school board as a requirement of his job.

The complaint did allege that Tabb was required to “work after hours with students,” but it also alleged that he was paid for after-hours work with the theater director supplement. And the complaint did not allege that any performing arts teacher in the school system, regardless of the teacher’s race, received more than one supplement.


The district court ruled that Durham School of the Arts or DSA, was not an appropriate comparator to Hillside High School because DSA has a specialized program that is, as Tabb alleged in his complaint, “part of a magnet program for arts and drama,” thus providing, as the district court concluded, “an obvious alternative explanation for its increased drama department staffing.” The court apparently confirmed this conclusion by going beyond the complaint and viewing the school’s website. Tabb argues that this also constituted error.

While it was error for the district court to consult the DSA website in determining whether the complaint properly alleged that the DSA was an appropriate comparator, the error was harmless because the complaint on its face supports the district court’s conclusion that the DSA’s specialized focus on arts and drama would require that it have enhanced staffing to serve that mission.

Summary judgment

Tabb contends next that the district court erred in granting summary judgment to the school board on his claim that the school board discriminated against him based on his race in failing to hire another drama teacher to serve at Hillside High School as a theater technical director.

The district court concluded that the hiring of a theater technical director to assist Tabb was not “‘part and parcel’ of employment as a high school drama teacher within [the school system].” Therefore, it reasoned, Tabb suffered no adverse employment action when the school refused to hire such a teacher. This court agrees with the district court. Moreover, Tabb failed to provide valid comparators.

Extra pay

Finally, Tabb contends that he was discriminated against in the payment of extra- duty pay for work he performed in connection with non-theater related events that took place at Hillside High School. His evidence on that claim, however, is lacking in two respects.

First, the record shows that from 2009 to 2019, he received over $11,000 in extra- duty pay, while the next most compensated teacher received approximately $2,076 over the same period. More importantly, however, Tabb also failed to provide a comparator to show that he was discriminated against in the payment of extra-duty pay.



(Motz, J.): I believe that Tabb adequately alleged that the board discriminated against him by failing to pay him a supplement for the technical theater work he performed in the absence of a technical director. I would also reverse the district court’s holding that the DSA was not a proper comparator for any of Tabb’s claims. In determining that the DSA was not a proper comparator, the district court improperly weighed matters outside of the pleadings—namely, information found on the DSA’s website—against Tabb’s allegations.

Tabb v. Board of Education of the Durham Public Schools (Lawyers Weekly No. 001-045-22, 23 pp.) (Paul V. Niemeyer, J.) (Diana Gribbon Motz, J., concurring in part and dissenting in part) Case No. 20-2174. March 2, 2022. From M.D.N.C. at Greensboro (William L. Osteen Jr., J.) Quintin DeVon Ithiel Byrd for Appellant. Colin Alexander Shive for Appellee. 4th Cir.

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