Calloway v. Henry County Board of Education

Filing 29

MEMORANDUM OPINION AND ORDER that the 18 MOTION for Summary Judgment filed by Henry County Board of Education is granted. An appropriate judgment will be entered. Signed by Honorable William Keith Watkins on 6/22/09. (sl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION L A R R Y CALLOWAY, P la in tif f , v. H E N R Y COUNTY BOARD OF E D U C A T IO N , D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C A S E NO. 1:08-CV-601-WKW [WO]

M E M O R A N D U M OPINION AND ORDER T h is is a race discrimination suit against the Henry County Board of Education ( " B o a rd " ) for not hiring Larry Calloway, a black male, as the principal of Abbeville High S c h o o l, and for voting not to renew his probationary contract as the principal of Abbeville M id d le School. Calloway alleges a violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. ("Title VII"), and of 42 U.S.C. § 1981, by way of 42 U.S.C. § 1983. The B o a rd has moved for summary judgment on all of the claims (Doc. # 18), and the parties h a v e fully briefed the motion. Based upon a careful consideration of the arguments of c o u n s e l, the relevant law and the record as a whole, summary judgment is due to be granted. Calloway has not adduced sufficient evidence to create a genuine issue of material fact as to d is c rim in a to ry intent.

I. JURISDICTION S u b je c t-m a tte r jurisdiction is exercised pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343, and 42 U.S.C. § 2000e-5(f)(3). The parties do not contest personal jurisdiction or v e n u e , and the court finds that there are allegations sufficient to support both. I I . FACTUAL AND PROCEDURAL BACKGROUND C a llo w a y is suing the Board for violations of Title VII and § 1981 (through § 1983),1 f o r actions the Board took affecting his employment as an administrative employee in the H e n ry County school system.2 In May 2005, Calloway applied for and was denied the p o s itio n of principal of Abbeville High School. The Board hired a white male instead and o f f e re d Calloway the position of principal of Abbeville Middle School, which he accepted. Calloway alleges that the Board denied him the high school position for racial reasons. In M a y 2007, the Board voted to not renew his contract as principal of Abbeville Middle S c h o o l. Calloway alleges that this action was done because had his contract been renewed, h e would have been tenured as a principal and positioned to become the principal of another

Section 1981 claims against state actors must be brought pursuant to § 1983. Baker v. Birmingham Bd. of Educ., 531 F.3d 1336, 1337 (11th Cir. 2008). The Board argues that the Complaint insufficiently alleges a § 1983 action because § 1981 and § 1983 are only cited once, in the Introduction, and never addressed specifically. By the same logic, however, Calloway has failed to allege a Title VII claim as well. Although the complaint is inartfully pled, the suit will be construed to allege both the Title VII and § 1983 causes of action. This generous interpretation works no prejudice to the Board, which ultimately prevails on both claims.
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Record citations are given only for specific or controversial facts that are critical.

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school in the county, Headland High School, which was a position he claims no non-white h a d ever held.3 T h e Board hired Calloway as principal of Abbeville Middle School on a two-year p ro b a tio n a ry contract for the 2005-2006 and 2006-2007 school years.4 He had applied for th e principal position at Abbeville High School, but was hired for the middle school position in s te a d .5 For the high school position, the Board hired a white male with around thirty years o f experience, including as a classroom teacher, who had been serving as the assistant p rin c ip a l at Abbeville Middle School for two or three years.6 (Dennis Coe Dep. 38, Apr. 7, 2 0 0 9 (Ex. 5 to Def.'s Mot. Summ. J. (Doc. # 28)).) After his two-year probationary term, Calloway's contract as principal of Abbeville M id d le School was up for renewal. The Board rejected renewal on a vote of three to two. The vote split on racial lines, with the white members voting against renewal and the black m e m b e rs voting for it. The Board instead hired the assistant principal at Abbeville Middle

Calloway has conceded that these actions are the only bases for his claims. (See Pl.'s Resp. Br. 18-19 (Ex. 1 to Pl.'s Resp. (Doc. # 25)).) When the Board hired him as principal of Abbeville Middle School, Calloway was the assistant principal of Headland High School, a position he had held for ten years. The parties dispute whether Calloway's application was specifically limited to the position of principal of Abbeville High School or whether during an interview with the Board, Calloway expressed an openness to being hired for the middle school position as well. This factual dispute will be addressed in the discussion section.
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As noted later, this information is undisputed.

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School, a black female. Calloway stayed at Abbeville Middle School for one more year as its assistant principal before taking a job outside the school system. The Board cites several reasons for why it accepted Superintendent Dennis Coe's re c o m m e n d a tio n that Calloway's contract not be renewed. The Board claims that Coe's re c o m m e n d a tio n was founded on a good faith belief that Calloway was not suited for the p o s itio n because of his performance during the probationary term. It is Coe's position that h e recommended nonrenewal for the following reasons: (1) Calloway's tardiness in arriving a t school in the morning; (2) the deterioration in the school's cleanliness under his le a d e rsh ip ; (3) dismissing eighth grade students one day without authority; (4) violating the F a m ily Educational Rights and Privacy Act (FERPA); (5) embarrassing the school with poor p l a n n in g for a Title I Targeted Assistance Plan Meeting with state officials; (6) failing to p ro v id e grades for and other information on students participating in the Target Assistance P la n ; and (7) student behavior, particularly, student supervision in the morning. Calloway challenges the factual basis for some of those claims. The parties also d is p u te whether Coe met individually with each Board member before the vote to explain his re c o m m e n d a tio n . The two members who deny any recollection of Coe specifically

d is c u s sin g Calloway's renewal with them, however, voted for renewal and otherwise p re s e n te d no testimony that race informed the Board's vote. C a llo w a y filed a charge of discrimination with the Equal Employment Opportunity C o m m is s io n ("EEOC") in November 2007, received a right-to-sue letter in April 2008, and

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filed a complaint in July 2008 (Doc. # 1). The Board filed an Answer, asserting numerous a f f irm a tiv e defenses. (Doc. # 3.) On March 13, 2009, the Board moved for summary ju d g m e n t (Doc. # 18) and filed a brief in support of its motion (Doc. # 19). Calloway re s p o n d e d in opposition to summary judgment (Doc. # 25), and the Board replied (Doc. # 27). This motion is now ready for resolution. III. STANDARD OF REVIEW " S u m m a ry judgment is appropriate `if the pleadings, depositions, answers to in te rro g a to rie s , and admissions on file, together with the affidavits, if any, show there is no g e n u in e issue as to any material fact and that the moving party is entitled to judgment as a m a tte r of law.'" Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2 0 0 7 ) (per curiam) (citation to former rule omitted); Fed. R. Civ. P. Rule 56(c) (Summary ju d g m e n t "should be rendered if the pleadings, the discovery and disclosure materials on file, a n d any affidavits show that there is no genuine issue as to any material fact and that the m o v a n t is entitled to judgment as a matter of law."). The party moving for summary ju d g m e n t "always bears the initial responsibility of informing the district court of the basis f o r its motion, and identifying those portions of [the record, including pleadings, discovery m a t e ria ls and affidavits], which it believes demonstrate the absence of a genuine issue of m a te ria l fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet th is burden by presenting evidence indicating there is no dispute of material fact or by

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showing that the nonmoving party has failed to present evidence in support of some element o f its case on which it bears the ultimate burden of proof. Id. at 322-24. If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue material to each of its c la im s for relief exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); C e lo te x , 477 U.S. at 324; Fed. R. Civ. P 56(e)(2) ("When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or d e n ia ls in its own pleading; rather, its response must . . . set out specific facts showing a g e n u in e issue for trial."). What is material is determined by the substantive law applicable t o the case. Celotex, 477 U.S. at 248; Lofton v. Sec'y of the Dep't of Children & Family S e r v s ., 358 F.3d 804, 809 (11th Cir. 2004) ("Only factual disputes that are material under the s u b s ta n tiv e law governing the case will preclude entry of summary judgment."). Furthermore, "[t]he mere existence of some factual dispute will not defeat summary ju d g m e n t unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (per curiam) (in te rn a l quotation marks and citation omitted). A genuine issue of material fact exists when the nonmoving party produces evidence th a t would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F .3 d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001) (to establish a genuine issue of material fact, the nonmoving party must produce evidence

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such that a reasonable trier of fact could return a verdict in his favor). If the evidence on w h ic h the nonmoving party relies, however, "is merely colorable, or is not significantly p ro b a tiv e , summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 2 4 2 , 249-50 (1986) (citations omitted). "A mere `scintilla' of evidence supporting the [ n o n m o v a n t's ] position will not suffice; there must be enough of a showing that the [trier of f a c t] could reasonably find for that party," Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1 9 9 0 ) (citation omitted), and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith R a d io Corp., 475 U.S. 574, 587 (1986). Conclusory allegations based on subjective beliefs a re likewise insufficient to create a genuine issue of material fact and do not suffice to o p p o se a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th C ir. 1997) (per curiam) (Plaintiff's "conclusory assertions . . . in the absence of supporting e v id e n c e , are insufficient to withstand summary judgment."). Hence, when a plaintiff fails to set forth specific facts supported by appropriate evidence sufficient to establish the e x is te n c e of an element essential to his case and on which the plaintiff will bear the burden o f proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex, 477 U.S. at 323 ("[F]ailure of proof concerning an essential element of the n o n m o v in g party's case necessarily renders all other facts immaterial."). Thus, in cases where the evidence before the court is admissible on its face or can be re d u c e d to admissible form and indicates there is no genuine issue of material fact, and where

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the party moving for summary judgment is entitled to it as a matter of law, summary ju d g m e n t is proper. Celotex, 477 U.S. at 323-24 (summary judgment appropriate where p le a d in g s, evidentiary materials and affidavits before the court show there is no genuine issue a s to a requisite material fact). IV. DISCUSSION A. T itle VII and Section 1981: Proving Discriminatory Intent C a l l o w a y's claims of racial discrimination encompass two distinct incidents ­ the B o a rd 's selection for principal of Abbeville High School, and the Board's nonrenewal of his c o n tra c t as principal of Abbeville Middle School ­ both of which are alleged for two separate c a u s e s of action, Title VII, and § 1983 (for violating § 1981). Title VII prohibits employers f ro m discriminating against an employee "with respect to his compensation, terms, c o n d itio n s , or privileges of employment" on the basis of race, § 2000e-2(a)(1), and § 1981 p ro h ib its intentional race discrimination "in the making and enforcement" of contracts, in c lu d in g employment contracts,7 Ferrill v. Parker Group, Inc., 168 F.3d 468, 472 (11th Cir. 1 9 9 9 ). A plaintiff alleging Title VII and § 1981 claims must prove discriminatory intent, but c a n satisfy this burden with either direct or circumstantial evidence.8 E.g., Crawford v.

Because the court finds no violation of § 1981, it is unnecessary to elaborate on the elements of § 1983, the vehicle by which the § 1981 challenge is raised. The analysis for proving discriminatory intent for a Title VII discriminatory treatment claim is the same for proving intentional discrimination under § 1981. Ferrill, 168 F.3d at 472.
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Carroll, 529 F.3d 961, 975-76 (11th Cir. 2008). Direct evidence of discriminatory intent is e v i d e n c e that "`if believed proves [the] existence of [a] fact in issue without inference or p re s u m p tio n .'" Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999) (quoting Burrell v . Bd. of Trustees of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997)). "`[O]nly the m o s t blatant remarks, whose intent could be nothing other than to discriminate' on the basis o f some impermissible factor" qualify. Id. (quoting Carter v. City of Miami, 870 F.2d 578, 5 8 2 (11th Cir. 1989)). Calloway has presented no such evidence. He must rely on the M c D o n n e ll Douglas framework to prove intent with circumstantial evidence. "Under the McDonnell Douglas framework, a plaintiff first must show an inference o f discriminatory intent, and thus carries the initial burden of establishing a prima facie case o f discrimination." Brooks v. County Comm'n, 446 F.3d 1160, 1162 (11th Cir. 2006). "To m a k e out a prima facie case of racial discrimination a plaintiff must show (1) [he] belongs to a protected class; (2) [he] was qualified to do the job; (3) [he] was subjected to adverse e m p lo ym e n t action; and (4) [his] employer treated similarly situated employees outside [his] c la s s more favorably." Crawford, 529 F.3d at 970. Once a plaintiff establishes a prima facie c a s e , under the McDonnell Douglas framework, the burden shifts to the employer "to `a rtic u la te some legitimate, nondiscriminatory reason' for the adverse employment action." Id. at 976 (quoting McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)). Deficiencies in job performance can be a legitimate reason for an adverse employment action. See, e.g., R o ja s v. Fla., 285 F.3d 1339, 1343 (11th Cir. 2002) (per curiam) (noting that poor job

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performance and tardiness are legitimate reasons for termination).

Additionally, "[a]

s u b je c tiv e reason is a legally sufficient, legitimate, nondiscriminatory reason if the defendant a rtic u la te s a clear and reasonably specific factual basis upon which it based its subjective o p in io n ." Chapman v. Al Transport, 229 F.3d 1012, 1034 (11th Cir. 2000) (en banc). If the employer meets its burden, the burden shifts back to the plaintiff to show that th e employer's stated reason for the adverse employment action was "pretext" for d is c rim in a tio n . Crawford, 529 F.3d at 976. The district court must determine, based on the e v id e n c e ,9 whether the plaintiff "`has cast sufficient doubt on the defendant's proffered n o n d is c rim in a to ry reasons to permit a reasonable factfinder to conclude that the employer's p r o f f e r e d reasons were not what actually motivated the conduct.'" Id. (quoting Combs v. P la n ta tio n Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)). "The district court must e v a lu a te whether the plaintiff has demonstrated `such weaknesses, implausibilities, in c o n s is te n c ie s , incoherencies, or contradictions in the employer's proffered legitimate re a s o n s for its action that a reasonable factfinder could find them unworthy of credence.'" Combs, 106 F.3d at 1538 (quoting Sheridan v. E.I. Dupont De Nemours & Co., 100 F.3d 1 0 6 1 , 1072 (3d Cir. 1996) (en banc)). If the plaintiff points to the disparity between his a lle g e d superior qualifications and those of the selected applicant to show pretext, the d i s p a ritie s "`must be of such weight and significance that no reasonable person, in the e x e rc ise of impartial judgment, could have chosen the candidate selected over the plaintiff.'"
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The entire record must be considered, and it must be considered in the light most favorable to the nonmovant. See, e.g., Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997).

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Brooks v. County Comm'n, 446 F.3d at 1163. Summary judgment is not available to an e m p lo ye r if the court determines that a reasonable jury "could conclude that the employer's p ro f f e re d reasons were not the real reason for its decision." Combs, 106 F.3d at 1538. B. A p p lic a tio n to Discrete Incidents 1. T h e Abbeville High School Principal Position

In May 2005, Calloway applied to be the principal of Abbeville High School. The B o a rd interviewed him for that position but instead offered him the position of principal of A b b e v ille Middle School, which he accepted. The Board argues that Calloway's Title VII c la im with respect to this incident is barred because neither the EEOC charge nor the C o m p la in t preserves a claim with respect to this incident. (Def.'s Reply 11.) However, the C o m p la in t states in paragraphs five and six that Calloway applied for and was denied the p o s itio n of principal of Abbeville High School and that a white male was hired instead, and in paragraph nine, that the Board's "actions," in the plural, were racially motivated and d e s ig n e d to keep a white in the position of principal of Headland High School. The EEOC c h a rg e alleges the same factual information. The Eleventh Circuit requires courts to read EEOC charges filed without the a s s is ta n c e of counsel "liberally." Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277, 1280 (1 1 th Cir. 2004) (per curiam) (citing binding former Fifth Circuit precedent). Although the c o m p la in t a plaintiff files in court alleging discrimination under Title VII "`is limited by the s c o p e of the EEOC investigation which can reasonably be expected to grow out of the charge

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of discrimination,'" id. (quoting Alexander v. Fulton County, Ga., 207 F.3d 1303, 1332 (11th C ir. 2000)), "`the scope of an EEOC complaint should not be strictly interpreted,'" id. (q u o tin g Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465 (5th Cir. 1970)). The "proper in q u iry" is whether the complaint "was like or related to, or grew out of, the allegations c o n ta in e d in [the] EEOC charge." Id. A liberal reading of the EEOC charge confirms that Calloway considered the choice f o r Abbeville High School principal to be a discriminatory action, and the Complaint's a lle g a tio n tying the alleged discriminatory "actions" back to the Board's selection of the p rin c ip a l for Abbeville High School grew out of the EEOC charge's factual allegations. A T itle VII claim must be brought, however, within 180 days of the alleged unlawful u n e m p lo ym e n t practice. § 2000e-5(e)(1). Calloway filed his EEOC charge in November 2 0 0 7 , well after the 180-day deadline for the May 2005 employment action. The Title VII c la im on the Board's selection for principal of Abbeville High School therefore clearly goes o u t as time barred.10 (See Answer 1 (asserting defense).) T h e Board argues that the § 1981 claim fails as well because Calloway has not e s ta b lis h e d a prima facie case of intentional discrimination, and, in the alternative, that C a llo w a y has failed to present evidence supporting pretext. (Def.'s Reply 13.) The Board is correct on the pretextual analysis.1 1

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The conduct may still be considered, however, as background for the May 2007 employment

action.
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It is assumed, without deciding, that Calloway has satisfied the elements of a prima facie case.

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Calloway testified at his deposition that he submitted an application only for the high s c h o o l position, the specific position, he claims, Coe orally encouraged him to pursue. (Larry C a llo w a y Dep. 38-39, Feb. 12, 2009 (Ex. 1 to Def.'s Mot. Summ. J).)1 2 The middle school p o s itio n , however, was open at the same time as the high school position. (Coe Dep. 33 (E x . 4 to Pl.'s Resp.).) Although Coe admits that he could not recall whether Calloway stated a preference for either position, Coe nevertheless recalls asking all of the applicants during a n interview if they had a "comfort zone" with respect to the two positions the Board had o p e n . (Coe Dep. 33, 36 (Ex. 4 to Pl.'s Resp.).) It is Coe's recollection that Calloway stated h e had a preference for working with middle school students but that given his experience, h e could work with high school students as well. (Coe Dep. 36 (Ex. 4 to Pl.'s Resp.).) Calloway denies that he indicated that preference at all,1 3 but he admits that he told the c o m m itte e that he could work with both groups of students. (Calloway Dep. 46-47 (Ex. 3 to Pl.'s Resp.).) Thus, there is a factual dispute as to whether Calloway expressed a preference for or d e s ire to fill the middle school position, but that is not dispositive of the Board's motion. This dispute jeopardizes only one of the reasons the Board gave for not hiring Calloway for th e high school position. To survive a motion for summary judgment, a plaintiff must rebut
Calloway also submits his testimony that the application was specific to the high school position (Calloway Dep. 40 (Ex. 3 to Pl.'s Resp.)), but neither party submitted page 41 of the deposition, which would have shown Calloway's answer to the question on page 40, "What about that application, the document, made it specific to Abbeville High School?" Coe did testify that when he called Calloway to offer him the middle school position, he made the statement that he did not recall applying for it. (Coe Dep. 39 (Ex. 4 to Pl.'s Resp.).)
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every legitimate, nondiscriminatory reason for the employment decision. Crawford v. City o f Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir.), cert. denied, 128 S. Ct. 495 (2007). In his affidavit, Coe stated that the applicant to whom the Board awarded the position w a s "better suited" for the job than Calloway was (Dennis Coe Aff. ¶ 4 (Ex. 2 to Def.'s Mot. S u m m . J.), and at his deposition, Coe provided more details on the selection process and on w h y the other applicant was selected. Coe testified that the Board screened applicants by u s in g a scoring system, and that the top five applicants emerging from that screening were in te rv ie w e d by a committee comprised of two white and two black members. (Coe Dep. 34 (E x . 5 to Def.'s Mot. Summ. J.).) Each committee member could ask questions, but the same q u e s tio n s were asked of all applicants. (Coe Dep. 34 (Ex. 5 to Def.'s Mot. Summ. J.).) Coe te s tif ie d that the committee told the applicants during the interview an applicant may be f o u n d ideal for the middle school position and asked the applicants whether they would a c c e p t that position if offered it.1 4 (Coe Dep. 37 (Ex. 4 to Pl.'s Resp.).) The committee then ra n k e d the applicants, and the first-ranked applicant received the high school position, and th e second-ranked, Calloway, the middle school position. (Coe Dep. 38 (Ex. 5 to Def.'s Mot. S u m m . J.).) Coe testified that the first-ranked applicant had thirty years of experience and w a s an assistant principal of Abbeville Middle School at the time, and that he had teaching e x p e rie n c e prior to that. (Coe Dep. 38 (Ex. 5 to Def.'s Mot. Summ. J.).)

Coe stated that he thought Calloway had said he was "okay" with taking the middle school position. (Coe Dep. 37 (Ex. 4 to Pl.'s Resp.).) Calloway disputes that he signaled a preference for the middle school position, but, again, admits that he stated he could work with both groups.

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Calloway presents no evidence that these reasons for hiring the first-ranked applicant w e re inconsistent, incoherent, or so weak that a jury could not find them worthy of credence, le t alone any evidence as to why Calloway should have been hired over the selected a p p lic a n t. Coe and Calloway argue over whether Calloway indicated a preference for the m id d le school position, but a committee, the integrity of which Calloway has not challenged, ra n k e d another individual above him and that individual had substantial and versatile e x p e rie n c e in the school system, and was uniquely positioned to assume the role because of h is work in Abbeville's lower school. A reasonable factfinder could not find that the Board's re a s o n s for the selection are unworthy of credence without more evidence contradicting the a p p lic a n t's credentials or bolstering Calloway's. Because Calloway fails to successfully re b u t the Board's legitimate reasons for hiring another applicant for the high school position, th a t claim of racial discrimination under § 1981 is due to be dismissed.1 5 2. R e n e w in g the Abbeville Middle School Principal Contract

T h e Board voted at the end of Calloway's probationary period as principal of A b b e v ille Middle School not to renew his contract. Calloway claims that the Board voted a g a in s t him for discriminatory reasons because it did not want him to be in a position to b e c o m e principal of Headland High School. (Compl. ¶ 9.) Calloway argues that had he been a llo w e d to remain principal of Abbeville Middle School "he would have been the obvious le a d in g candidate to become principal at Headlands [sic] High [School] (which . . . had a

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This analysis would have foreclosed the Title VII claim as well, had it not been time-barred.

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long history of not having a Black Principal)."16 (Pl.'s Resp. Br. 4 (Ex. 1 to Pl.'s Resp.).) H e argues that it was "common knowledge" that Headland High School's principal was due to retire a year after Calloway was terminated (Pl.'s Resp. Br. 4; see also Coe Dep. 114 (a c k n o w le d g in g that the principal had talked about retiring for several years) (Ex. 4 to Pl.'s R e sp .).) Calloway's insinuation is that the Board's vote to not renew his position eliminated h im from the "front-runner" position for the new principal of Headland High School, a p o s itio n the Board wanted to reserve for a white applicant. (See Pl.'s Resp. Br. 5-6.) Calloway's only evidence as to why he would have been the most "credible" candidate to fill the Headland High School vacancy (Pl.'s Resp. Br. 6), however, are his own s p e c u la tio n and self-serving assessment of his position. When asked in his deposition what e v id e n c e he could show that race was the basis of his nonrenewal, he stated that "[i]n [his] m in d . . . someone does not want a black male at Headland High School, period." (Calloway D e p . 153 (Ex. 1 to Def.'s Mot. Summ. J.).) The nonrenewal was "contrived to discredit [ h im ]" so that he would not have a position at Headland High School, as he was, in his view, e n title d to return there based on his "experience and seniority in the system." (Calloway D e p . 153, 154 (Ex. 1 to Def.'s Mot. Summ. J.).) In his response, Calloway also delineated, b y race, the principals and assistant principals in the Henry County schools at the time Coe

He argues that he would have been in that position if he had been hired as the principal of Abbeville High School two years earlier as well. (Pl.'s Resp. Br. 4.)

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became superintendent and three years later, to create an inference of Coe's discrimination.17 (P l.'s Resp. Br. 5-6.) Calloway's claim that Coe's recommendation and the Board's decision not to renew h is contract fails for myriad reasons. First, he fails to establish a prima facie case. It is u n d is p u te d that a black female was hired for the position of principal of Abbeville Middle S c h o o l. Second, even assuming Calloway's logic is instead that his denied renewal

e f f e c tiv e ly served as a rejection for the position of principal of Headland High School, it is q u e s tio n a b le whether he even established a prima facie case for that application, considering

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Under [Title VII], an employer may be found liable for unlawful [ ] discrimination under any one of three discrete theories: pattern and practice discrimination, disparate treatment discrimination, or disparate impact discrimination. Both pattern and practice and disparate treatment claims require proof of discriminatory intent; disparate impact claims do not. . . . [I]n a disparate treatment case, the plaintiff bears the ultimate burden of proving that the employment action at issue was taken because of the plaintiff's sex. See Holifield v. Reno, 115 F.3d 1555, 1564-65 (11th Cir.1997). Likewise, in a pattern and practice case, the plaintiff must prove, normally through a combination of statistics and anecdotes, that discrimination is the company's "standard operating procedure." In contrast, disparate impact theory prohibits neutral employment practices which, while non-discriminatory on their face, visit an adverse, disproportionate impact on a statutorily-protected group.

E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1273-74 (11th Cir. 2000) (emphasis in original) (footnote and citations omitted). Calloway has provided no indication that he is pursuing his Title VII claim under a pattern and practice or disparate impact theory. Besides, Calloway's evidence can hardly be considered "strong statistical evidence" of the sort coupled with anecdotal evidence to show a pattern and practice of discrimination. See id. at 1287 (citation omitted). Even on Calloway's numbers, his argument is weak. The principal at Headland Middle School for the 2008-2009 school year, an allegedly majority-white school, was black. One in six of the positions in the Headland schools was therefore held by a black; at the beginning of Coe's tenure, two of six were. With such a small sample size, and the influence of other crucial variables (evidence of which Calloway does not provide), this late positioning hardly jump starts Calloway's argument.

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that he has shown no evidence that the Board was actively seeking applicants for the position a t the time of his nonrenewal. Regardless, Calloway has failed to show how the reasons the Board gave for not re n e w in g his position were pretextual. A good portion of the parties' briefs wrangles over th e facts surrounding the reasons Coe specifies for his recommendation. It is unnecessary to catalog every dispute. A few facts remain undisputed, and these facts justify Coe's re c o m m e n d a tio n and the Board's decision. Calloway admits that while he was principal, there was a meeting with the Alabama D e p a rtm e n t of Education officials for a review that determined the availability of federal f u n d s , and that he was so unprepared for the meeting that it had to be rescheduled. (Calloway Dep. 95-96 (Ex. 1 to Def.'s Mot. Summ. J.); Coe Aff. ¶ 15; Danny K. Hooper Aff. ¶ ¶ 1, 4 (Ex. 3 to Def.'s Mot. Summ. J.).) He admits that Coe even came to talk to him in a d v a n c e prior to the meeting about issues that would be addressed during the meeting. (Calloway Dep. 100-03 (Ex. 1 to Def.'s Mot. Summ. J.).) Calloway provides excuses for his p e rf o rm a n c e (see Calloway Dep. 104, 108 (Ex. 1 to Def.'s Mot. Summ. J.)), but does not d is p u te the fact that the meeting had to be rescheduled because, in the words of the federal program s coordinator, Calloway was "very poorly prepared." (Hooper Aff. ¶ 4; see Calloway D e p . 108 (confirming that Hooper's assessment was "accurate") (Ex. 1 to Def.'s Mot. Summ. J .) .)

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Coe also cites Calloway's tardiness in arriving to school. (E.g., Coe Aff. ¶ 7.) Calloway does not dispute Coe's testimony that county policy as set out in a handbook was th a t principals had to arrive at 7:00 a.m. to school as a general rule, and that they should a rriv e thirty minutes prior to students arriving. (Coe Dep. 43 (Ex. 4 to Pl.'s Resp.).) Calloway estimated that his students arrived at school at "7:20, 7:25, 7:30," and that he had to be at school at "7, 7:15," and admits that on the day Coe saw him arrive late, Calloway a rriv e d after 7:15. (Calloway Dep. 63 (Ex. 1 to Def.'s Mot. Summ. J.).) He also admits to b e in g late on other days. (Calloway Dep. 70 (Ex. 1 to Def.'s Mot. Summ. J.).) He explains h is behavior in the following way: W e ll, I could have gotten there at 7:00. But I'm still early. I'm there before m o s t of the kids are there. And would you say that's on time? It wouldn't be if I was supposed ­ if I was supposed to be there at seven. But I never had that d is c u s s io n about I was supposed to be there exactly at seven. But I guess ­ I g u e s s I can assume that it should have been unspoken. I should have known th a t, I guess. But there were times that I did run late, yes. (C a llo w a y Dep. 69-70 (emphases added) (Ex. 1 to Def.'s Mot. Summ. J.).) That testimony f a lls short of establishing that the tardiness excuse was pretextual. Indeed, it effectively c o n f irm s the Board's position. C a llo w a y also admits that he granted teachers' request for an Academic Audit Day, a day in which students are dismissed and teachers confer over certain student d e te rm in a tio n s . (Calloway Dep. 76 (Ex. 1 to Def.'s Mot. Summ. J.).) He said he assumed it had already been approved because it had been scheduled every year for years before that d a te . (Calloway Dep. 76 (Ex. 1 to Def.'s Mot. Summ. J.).) He released eighth graders from 19

school that day. (Calloway Dep. 75-76 (Ex. 1 to Def.'s Mot. Summ. J.).) Calloway claims th a t Coe never orally told him "don't you dare do it" (Calloway Dep. 81 (Ex. 1 to Def.'s Mot. S u m m . J.)), and that a letter sent to him from Coe before the day confirmed Coe's approval (s e e Audit Day Ltr. (Ex. B to Coe Aff.)). Nevertheless, even by Calloway's own testimony, C o e told Calloway that the Alabama Department of Education had concerns about the day a n d that Calloway did not need to give teachers free days in the future. (Calloway Dep. 78, 8 0 (Ex. 1 to Def.'s Mot. Summ. J.).) The letter from Coe to Calloway memorialized Coe's c o n c e rn s: In light of the seriousness of the situation, I am summarizing in writing th e conversation we held yesterday in regard to the 8th grade students at your s c h o o l. The Code of Alabama, along with the State Department of Education, re q u ire s that students be in school a minimum of 175 days per year. While the S ta te Department does grant very little leniency in dealing with high school s e n io rs around graduation time, it in no way provides for any leeway in a l t e rin g the number of instructional days for our students. I realize that you w e re merely using the schedule of last year; however, in all reality, all that has b e e n accomplished is another teacher workday for the 8 th grade teachers, and o n e less instructional day for these students. I have extinguished any concerns th a t have been directed from the State Department, but have done so with a g r e a t deal of embarrassment. . . . I hope and expect that in the future all d e c is io n s of this magnitude should be approved by my office first. Thank you f o r your usual fine cooperation. (A u d it Day Ltr. (emphasis added).) That Calloway may have excuses for the day off does n o t alone delegitimize Coe's impression of its seriousness or how it reflected on Calloway's ju d g m e n t. In another letter from Coe to Calloway addressing an event for which Calloway again g iv e s excuses but does not dispute the basic facts, Coe stated the following: 20

It was brought to my attention today that you allowed a blood sibling o f an adopted child access to the school during the school day. As you can im a g in e , the adoptive parents (as well as the office of DHR) are extremely u p s e t and concerned about the situation. Your actions may very well create a h a rd s h ip great enough for the adoption to fall through. Both the adoptive p a re n ts , student, and blood parents are in great distress and may be considering le g a l action against the school system because of your actions. Your actions a re also in direct violation of the Family Education Rights and Privacy Act (F E R P A ). (FERPA Ltr. (Ex. C to Coe Aff.).) Even if Calloway's decision was understandable given th e circumstances (see Calloway Dep. 90-91 (Ex. 1 to Def.'s Mot. Summ. J.)),1 8 that does not e ra s e the fact that before Coe at the time of his recommendation was this incident, the facts o f which are largely not in dispute.19 T h e Board cites other evidence for Coe's recommendation and its decision, for e x a m p le , that Calloway failed to ensure students were receiving grades in a certain class, and th a t Coe had to personally straighten out the program. (Coe Aff. ¶ 11.) Calloway's response w a s that when the problem was brought to his attention, he fixed it, but he cannot deny C a llo w a y's assessment that it was a serious concern. (Calloway Dep. 116 (Ex. 1 to Def.'s M o t. Summ. J.).) It is unnecessary to delve into the other details the Board and Calloway dispute with re g a rd to the cleanliness of the school and the discipline of the students. The facts already
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The court expresses no finding on this point.

Calloway disputes that he violated FERPA, but regardless of the legal resolution to that question, Calloway possibly violated FERPA and his actions were responsible for problems for the student's family and the school system. Calloway has presented no evidence that Coe did not "honestly believe[]" the facts as portrayed to him. Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1318 n.6 (11th Cir. 2003) (per curiam).

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described confirm that Coe's reasons for not recommending Calloway's renewal, and the B o a rd 's vote on that recommendation, were justified. These issues during Calloway's p ro b a tio n a ry term as principal of Abbeville Middle School did not occur in a vacuum. Each d is c re te problem compounded together more than justifies the Board's decision given that C a llo w a y is unable to dispute the basic facts as they appeared to Coe and to the Board. Calloway also cannot point to any reason why the Board's hiring of the white applicant who e v e n tu a lly became principal of Headland High School evidences pretext. Calloway may b e lie v e the Board's decision was unfair, and may or may not be justified in that belief, but h e has shown nothing to prove it was racially discriminatory. "It is by now axiomatic that [ th e courts] cannot second-guess the business decisions of an employer." Rowell v. BellSouth C o r p ., 433 F.3d 794, 798 (11th Cir. 2005). The role of the courts "`is to prevent unlawful h irin g practices, not to act as a super personnel department . . . .'" Wilson v. B/E Aerospace, In c ., 376 F.3d 1079, 1092 (11th Cir. 2004) (quoting Lee v. GTE Fla., Inc., 226 F.3d 1249, 1 2 5 4 (11th Cir. 2000)). V . CONCLUSION A c c o rd in g ly, it is ORDERED that the Board's motion for summary judgment (Doc. # 18) is GRANTED. An appropriate judgment will be entered. DONE this 22nd day of June, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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