Sims v. Coosa County Board of Education

Filing 25

MEMORANDUM OPINION AND ORDER denying 12 Motion for Summary Judgment on Behalf of Dft Coosa County Board of Education. Signed by Hon. Chief Judge Mark E. Fuller on 9/2/2008. (Attachments: # 1 Civil Appeals Checklist)(wcl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION G L O R IA SIMS, P L A IN T IF F , v. C O O S A COUNTY BOARD OF E D U C A T IO N , DEFEND AN T. ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:07cv704-MEF (W O -D o Not Publish)

M E M O R A N D U M OPINION AND ORDER P la in tif f Gloria Sims ("Sims") brings suit against the Coosa County Board of E d u c a tio n ("the Board") pursuant to Title VII of the Civil Rights Act of 1964, as amended, an d 42 U.S.C. § 1981. In this action, she contends that the Board failed to hire her for a p o s itio n because of her race and her sex and then retaliated against her for complaining about w h a t she believed constituted discrimination against her. This cause is before the Court on th e May 30, 2008 Motion for Summary Judgment on Behalf of Defendant Coosa County B o a rd of Education (Doc. # 12). The Board contends that Sims' claims are not viable b e c au s e she cannot make out a prima facie case of discrimination on the basis of her race or se x or of retaliation. For the reasons set forth below, the Motion for Summary Judgment is d u e to be DENIED. JURISDICTION AND VENUE T h e Court exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343 (civil rights). The parties do not contest

p e r s o n a l jurisdiction and venue, and the Court finds adequate allegations in support of p e rs o n a l jurisdiction and venue. STANDARD OF REVIEW U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a t re t t, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole c o u ld lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." Redwing Carriers, Inc. v . Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 248 (1986)). The party asking for summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence s h o w in g there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate b u rd e n of proof. Id. at 322-23.

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O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to i n t e rro g a to rie s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the o th e r hand, a court ruling on a motion for summary judgment must believe the evidence of th e non-movant and must draw all justifiable inferences from the evidence in the non-moving p a rty's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. After the nonmoving party h a s responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). FACTS T h e Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the motion. The submissions of the parties, viewed in the lig h t most favorable to the non-moving party, establish the following relevant facts: S im s , a Causasian female, worked for the Board as a substitute lunchroom worker b e g in n in g in August of 2004. She worked as a substitute in a variety of schools under the B o a rd during the 2004/2005 school year. The Board does not have educational requirements o r qualifications for its substitute employees.

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C o m m e n c i n g in August of 2006, Sims worked as a substitute lunchroom worker in th e Central High School ("Central High") cafeteria. At that time, Jan Forbus ("Forbus"), a C a u c a sia n female, worked as the Central High Cafeteria Manager. Forbus asked Sims to s u b s titu te on a daily because one of the regular employees, Michael Kelly, the sole AfricanA m erican working in the lunchroom at Central High, had just quit. Forbus put Sims to work a n d told her she was doing a good job. According to Sims, Forbus never expressed to Sims a n y criticism of her performance. O n several occasions in August of 2006, Forbus said that the lunchroom position was a "man's job." 1 According to Sims, Forbus also made numerous statements indicating that th e position was going to be filed by a male and probably by a "black" male. Forbus also s ta te d that Pam Jones ("Jones")2 had said that she had to get some color in the lunchroom or th a t Jones had stated that she was putting some color in the lunchroom.3 When Forbus made th e s e comments, Sims told her that to do so would be unfair and discriminatory.

While Forbus denies making these comments, she does admit that she felt that the jo b was better suited for a man because of the lifting. Due to the procedural posture of this m a tte r, the Court must view the facts in the light most favorable to Sims, as she is the nonm o v a n t. This means that, for purposes of this motion, the Court accepts Sims' account of F o r b u s ' statements which is corroborated by at least one other witness. Since 2001, Jones, an African-American female, has served as the Child Nutrition D ire c to r for the Coosa County Board of Education. Jones oversees all the lunchroom o p e ra tio n s in the school system operated by the Board. Consequently, she is involved in the h irin g of lunchroom workers. Prior to 2006, however, Jones did not participate in the in te rv ie w process for lunchroom workers. Jones denies having made such a statement to Forbus, but given the procedural p o s tu re of the case the Court must view the facts in the light most favorable to Sims. 4
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In early September of 2006, Central High posted the Lunchroom Worker job opening.4 A lth o u g h the job posting for the position indicated that it involved heavy lifting, the sole m in im u m qualification listed for the position was a high school diploma or GED.5 While this is the same job posting that Central High had previously used when hiring for similar p o s itio n s , it is undisputed that the Board had approved some employees to work as lu n c h ro o m workers at various schools in the system who did not have either a high school d ip lo m a or a GED.6 C e n t ra l High's interview committee for this selection process consisted of Forbus, J o n e s, and Keith Bullard ("Bullard").7 c a n d id a tes for the position: The interview committee interviewed seven

Although it is somewhat confusing, the job posting denominated the vacancy as a " 6 - H o u r Temporary Lunchroom Worker." It is clear from the record that this job posting w a s for employment that, while called "temporary," was intended to be more lasting than S im s ' work as a substitute. This temporary position would include some benefits. A d d itio n a lly, persons hired into the temporary position had the potential for earning tenure. The only proffered rationale for this requirement is that it sets a good example. It is undisputed that there is no requirement under state law that a lunchroom worker have a G E D or a high school diploma. The Board has the discretion to eliminate this requirement. L u n c h ro o m workers do not provide academic instruction. Interestingly, the Board does not re q u ire that a person who wishes to work as a substitute teacher and provide academic in s tru c tio n as such possess either a high school diploma or a GED. Additionally, the Board hired Jones, an African-American, for a position even th o u g h she clearly did not possess the mandatory educational requirements for the position. T h e Board has allowed Jones years to work toward the required qualifications of the position s h e occupies while working in the position.
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Bullard was the Central High Principal. He is a Caucasian male. 5

C a n d id a te S im s K r ys ta l Benson A n th o n y Braxton Borden G la d d is M. Harris F r a n k T. Jones Jerry W. McKinney L a rry Wayne Rogers

R a c e /S e x C a u c a s ia n /F e m a le A f ric a n -A m e ric a n /F e m a le A f ric a n -A m e ric a n /M a le A f r i c a n - A m e r i c a n /F e m a le A f r i c a n - A m e r i c a n /M a le A f ric a n -A m e ric a n /M a le C a u c a s ia n /M a le

D ip lo m a /G E D no h ig h school diploma h ig h school diploma no no h ig h school diploma no

In te re stin g ly, only three of the applicants, all of whom are African-American, met the m in im u m qualification for the position because they possessed high school diplomas. Two o f these three minimally qualified applicants were male. Only two of the seven applicants w e re Caucasian. Only three of the seven applicants were female. During Sims' interview, Forbus complimented Sims on her job performance. During e a ch of the seven interviews, the committee asked each of the candidates whether he or she h a d either a high school diploma or a GED. The committee claims that they did not consider f u rth e r any of the applicants who indicated that they did not possess either a high school d ip lo m a or a GED. Consequently, despite the fact that Sims had been performing well in the p o s itio n that the committee was seeking to fill, the committee recommended Jerry McKinney (" M c K in n e y" ), an African-American male, for the position. The Board unanimously voted in favor of hiring McKinney. A f te r the decision to recommend McKinney was made, Forbus told Sims that she was

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n o t recommended to fill the position. Forbus told Sims that the committee had selected an A f ric a n -A m e ric a n male. Sims told Forbus that the decision was not fair and asked why the su c c e ss f u l candidate had been selected instead of her. Forbus said it was because Sims did n o t have a high school diploma and the successful candidate did. Sims said she was being tre a te d unfairly. According to Sims, Forbus agreed. Sims became too upset to work and left w ith o u t finishing her shift. Forbus felt that Sims had walked off the job and left her "in the lu rc h " and understaffed for the lunch hour. In addition to her complaints about discrimination or unfairness during her e m p lo ym e n t, of which Forbus was clearly aware,8 Sims also filed a Charge of Discrimination w ith the Equal Employment Opportunity Commission ("EEOC") in November of 2006. In th is Charge, Sims complained of discrimination on the basis of her race and sex and re ta lia tio n . Forbus was on a leave of absence from her position when she learned that Forbus h a d filed a formal Charge of Discrimination with the EEOC.9 About two weeks after Forbus in d ica ted that she had read Sims' EEOC Charge, an employment screening service hired to c h e c k out Sims for a job with another employer called Forbus at her home to ask about Sims. T h ere is evidence before this Court which is capable of being reduced to an admissible form a n d from which a reasonable jury could find that Forbus provided negative and possibly If the facts before the Court are viewed in the light most favorable to Sims, it is c le a r that Forbus was aware of Sims' complaints of discrimination prior to the filing of the f o rm a l EEOC Charge. In her testimony, Forbus denies such knowledge. On April 11, 2007, Forbus signed an affidavit in which she indicated that she had re a d Sims' EEOC Charge. 7
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in a c cu ra te information about Sims during this April 24, 2007 telephone conversation. M o re o v e r, Sims was informed that she was not hired because of the bad reference she re c eiv e d from Central High.1 0 D IS C U S S IO N A s previously stated, Sims' lawsuit is comprised of two types of claims: the d i sc r i m i n a t i o n claims arising out of the Board's failure to select her for the position as a T e m p o r a ry Lunchroom Worker and the retaliation claim arising out of the negative reference p ro v id e d after the termination of her employment and the filing of her Charge of D is c rim in a tio n with the EEOC. The discrimination claims are predicated on allegations of d iscrim inatio n on the basis of Sims' race and sex. For the reasons set forth below, the Court is not persuaded that the Board has met its burden of establishing that there exist no genuine is s u e s of material fact and that it is entitled to judgment as a matter of law. Consequently, its motion is due to be DENIED. A . FAILURE TO SELECT CLAIM U n d e r Title VII it is unlawful for an employer "to fail or refuse to hire or to discharge an y individual, or otherwise to discriminate against any individual with respect to [her] c o m p e n s a tio n , terms, conditions, or privileges of employment, because of such individual's"

Again, this is not supported by admissible evidence at this stage, but it is supported b y evidence which is capable of being reduced to admissible form as the law of the Eleventh C irc u it requires. 8

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ra c e or sex. 42 U.S.C. § 2000e-2(a)(1). The elements of a § 1981 1 1 race discrimination claim in the employment context are the same as a Title VII disparate treatment claim. See, e.g., P a tte rs o n v. McLean Credit Union, 491 U.S. 164 (1989); Rice-Lamar v. City of Fort L a u d e rd a le , 232 F.3d 836, 843 n.11 (11th Cir. 2000); Howard v. BP Oil, 32 F.3d 520, 524 n .2 (11th Cir. 1994). "[T]he plaintiff in an employment discrimination lawsuit always has th e burden of demonstrating that, more probably than not, the employer took an adverse e m p lo ym e n t action against him on the basis of a protected personal characteristic." Wright v . Southland Corp., 187 F.3d 1287, 1292 (11th Cir. 1999). A n employee bringing a claim under Title VII must initially establish a prima facie c a se of discrimination through one of three methods: by presenting direct evidence of d is c rim in a to ry intent, presenting circumstantial evidence of discrimination by satisfying the a n a lys is set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its p ro g e n y, or by introducing statistical evidence of discrimination. Walker v. NationsBank of F lo r id a , N.A., 53 F.3d 1548, 1556 (11th Cir. 1995). Sims argues that she has both direct and c irc u m s ta n tia l evidence of her claims of discrimination. 1 . Direct Evidence In the context of employment discrimination cases, it is well-settled that direct

Section 1981 makes it unlawful to discriminate on the basis of race in the making a n d enforcing of contracts. 42 U.S.C. § 1981(a). The phrase "make and enforce contracts" is defined to include "the making, performance, modification, and termination of contracts, a n d the enjoyment of all the benefits, privileges, terms, and conditions of the contractual re la tio n s h ip ." 42 U.S.C. § 1981(b). 9

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e v id e n c e is evidence which, if believed, proves the existence of a fact in issue, such as the e x is te n c e of a discriminatory motive, without inference or presumption; if the evidence m e re ly suggests that the employer acted with a discriminatory motive then it is circumstantial e v id e n c e , not direct evidence. See, e.g., Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 10868 7 (11th Cir. 2004); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998); B u r r e ll v. Board of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997); Merritt v . Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1987); Carter v. City of Miami, 870 F .2 d 578, 582 (11th Cir. 1989); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 n.6 (11th C ir.1 9 8 7 ). Direct evidence of discrimination is evidence which reflects a discriminatory a ttitu d e correlating to the discrimination complained of by the employee. Wilson, 376 F.3d a t 1086. "Therefore, remarks by non-decisionmakers or remarks unrelated to the

d e c is io n m a k in g process itself are not direct evidence of discrimination." Standard, 161 F.3d a t 1330. Moreover, direct evidence is composed of "only the most blatant remarks, whose inten t could be nothing other than to discriminate" on the basis of some impermissible factor. C a r te r , 870 F.2d at 582. Remarks which do not constitute direct evidence can serve as c irc u m s ta n tia l evidence. Sims relies on statements that she contends Jones and Forbus made shortly before they se rv e d on the interview committee which recommended a candidate for the Board's approval. D u rin g the weeks before the selection process, Forbus repeatedly stated that the lunchroom w o rk e r position was a man's job. She admits that she believed that the job was better suited

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f o r a man because of the lifting it required. While it is a close question, the Court finds that F o r b u s ' repeated statements that the position was a "man's job" do constitute evidence w h ic h , if believed, proves the existence of sex discrimination without inference or p r e s u m p t io n . The statements immediately preceded Forbus' role in the selection process, th e y reveal her preconceived notion that a male would better be able to perform in the p o s itio n , and despite the Board's argument to the contrary, the statements are incapable of c o n stru c tio n in a way that fails to reveal sexist bias with regard to the position of lunchroom w o rk e r. The Board has vigorously argued that Forbus' statements about the lunchroom worker p o s itio n being a "man's job" in the period immediately before the position was filled do not c o n stitu te direct evidence. The Board does not appear to argue, in the alternative, that even if the comments constituted direct evidence it would have made the same employment d e c i sio n absent discriminatory intent. "In the face of direct evidence, an employer must p rov e that the same employment decision would have been made absent any discriminatory in te n t." Carter, 870 F.2d at 582. Because this Court has found that the Forbus statements co n stitute direct evidence of sex discrimination, the Board is not entitled to summary ju d g m e n t on the sex discrimination claim. It has not satisfied its legal burden of showing that th e same employment decision would have been made absent any discriminatory intent. To th e extent that the Board's arguments regarding Sims' failure to satisfy the minimum q u a lif ic a tio n s for the position could be construed as an attempt to satisfy this burden, the

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C o u rt cannot grant summary judgment because the record before the Court creates a jury is s u e on whether the Board would have made the same employment decision. The fact that th e Board had hired other lunchroom workers who did not possess the minimum qualification f o r the position makes the case one in which the jury will be required to resolve the issues a t hand.12 W ith respect to direct evidence of race discrimination, the evidentiary record before th e Court is lacking. Jones' remarks about getting some color in the lunchroom or putting so m e color in the lunchroom which were made at some unknown time do not constitute d ire c t evidence of race discrimination with respect to the hiring of McKinney instead of S im s . Indeed, Sims has pointed to nothing that constitutes direct, rather than circumstantial e v id e n c e, that she was not hired because of her race. The Jones comment is not direct e v id e n c e . There is no evidence that suggests that the comment was made at or near the time J o n e s was recommending that the Board hire McKinney. Moreover, the comment does not s p e c if ic a lly refer or correlate to Sims or to the decision not to hire her for the position. F inally, the comment is capable of being understood by a reasonable jury to refer to matters w h o lly unrelated to race and hiring. For example, it could have referred to decor. While the s ta te m e n t is circumstantial evidence of a racist motive on Jones' part, this evidence does not e s ta b lis h , without inference or presumption, discriminatory intent to refuse to hire Sims

In the alternative, as will be discussed below, the Court finds that an analysis of the s e x claim using the circumstantial evidence approach yields the same result. 12

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b e c au s e of her race. Thus, the Court will address whether, under the circumstantial evidence a n a lys is , the Board is entitled to judgment as a matter of law on the undisputed evidence.

2 . Circumstantial Evidence T o establish a discrimination claim by circumstantial evidence using the McDonnell D o u g l a s framework, the employee has the initial burden of showing, by a preponderance of th e evidence, a prima facie case of the proscribed practice. Young v. General Foods Corp., 8 4 0 F.2d 825, 828 (11th Cir. 1988), cert. denied, 488 U.S. 1004 (1989). The essence of the p r im a facie case is that the employee presents circumstantial evidence sufficient to generate a reasonable inference by the fact finder that the employer used prohibited criteria in making a n adverse decision about the employee. If established, the prima facie case raises a re b u tta b le presumption that the employer is liable to the employee. Texas Dep't of Cmty. A ffa ir s v. Burdine, 450 U.S. 248 (1981). "Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of d is c rim in a tio n ." Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). In general a prima facie case of race or sex discrimination in the context of a decision c o n c e r n in g hiring requires an employee to produce evidence that: (1) she belongs to the p ro te c te d group; (2) she applied and was qualified for a job for which the employer was s e e k in g applicants; (3) she was rejected; and (4) after her rejection, the position remained o p e n and the employer continued to seek applicants from persons of the plaintiff's

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q u a lific a tio n s or the position was filled by a person outside the protected class who was only e q u a lly or less qualified. See, e.g., Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 253 n .6 ; Arrington v. Cobb County, 139 F.3d 865, 873 (11th Cir. 1998); Jones v. Gerwens, 874 F .2 d 1534, 1539 (11th Cir.1989); Hill v. Seaboard Coast Line R. Co., 885 F.2d 804, 808 (1 1 th Cir. 1989). The Board argues that Sims cannot establish a prima facie case of race discrimination w ith respect to its decision not to hire her. Specifically, the Board contends that it is u n d i sp u te d that Sims does not possess the stated minimum qualification for the job because sh e does not have either a GED or a high school diploma. At best, Sims' response appears to be that she has direct evidence of discrimination, as previously discussed, that she was q u a lif ie d for the position because she successfully performed in the position, and that the q u a lif ic a tio n of a GED or a high school diploma is unrelated to the job's actual requirements. M o re o v e r, Sims' notes inconsistency by the Board with respect to enforcing this requirement f o r the lunchroom worker position which suggests that the requirement is not one about w h ic h the Board is really concerned. Furthermore, Sims argues that the Board has provided a t least one African-American job candidate to be hired into a position without possessing th e minimum qualifications for the position so long as she agreed to work toward obtaining th o s e qualifications. Finally, the statements by Forbus and Jones constitute circumstantial e v id e n c e of race and sex discrimination. The United States Supreme Court and the Eleventh Circuit Court of Appeals have 14

re p e ate d ly emphasized that the requisite showings that make up a prima facie case are not m e a n t to be rigid or inflexible. See, e.g., Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. a t 253 n.6; Schoenfeld v. Babbitt, 168 F.3d 1257, 1268 (11th Cir. 1999) (collecting cases); H ill, 885 F.2d at 808 n.5; Jones v. Gerwens, 874 F.2d at 1539. In cases where the evidence does not fit neatly into the classic p rim a facie case formula, for example, [the Eleventh Circuit h a s] stated that "[a] prima facie case of disparate treatment can b e established by any `proof of actions taken by the employer f ro m which we infer discriminatory animus because experience h a s proved that in the absence of any other explanation it is m o re likely than not that those actions were bottomed on im p erm issib le considerations.'" S c h o e n feld , 168 F.3d at 1268 (citing Hill v. Metro. Atlanta Rapid Trans. Auth., 841 F.2d 1 5 3 3 (11th Cir. 1988), modified, 848 F.2d 1522 (11 th Cir. 1988) (quoting Furnco Constr. C o r p . v. Waters, 438 U.S. 567, 576 (1978))). The "factual inquiry" in a Title VII case is " w h e th e r the defendant intentionally discriminated against the plaintiff." Burdine, 450 U.S. at 253. In other words, is "the employer ... treating `some people less favorably than others b e c au s e of their race, color, religion, sex, or national origin.'" Furnco Constr. Corp. v. W a t e rs , 438 U.S. 567, 577 (1978), quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 3 2 4 , 335 n.15 (1977). The prima facie case method established in McDonnell Douglas was " n e v e r intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly w a y to evaluate the evidence in light of common experience as it bears on the critical q u e stio n of discrimination." Furnco, 438 U.S. at 577. The Court finds that this case is one

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in which the facts, when viewed in the light most favorable to Sims, sufficiently established a c tio n s taken by the Board from which a reasonable jury could infer discriminatory animus o n the basis of either Sims' sex or her race. For this reason, the Court finds that the Board is not entitled to summary judgment on Sims' claims of disparate treatment with respect to th e Board's failure to hire her for the lunchroom worker position at Central High despite S im s ' failure to demonstrate a prima facie case by showing that she possessed the advertised m in im u m qualifications for the position. Once a plaintiff establishes the requisite elements of the prima facie case, the d e f en d a n t has the burden of producing a legitimate, non-discriminatory reason for the c h a lle n g e d employment action. See, e.g., Holifield v. Reno, 115 F.3d at 1564 (citing Texas D e p 't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)). The employer's burden is

" e x ce e d in g ly light." Holifield, 115 F.3d at 1564. This burden is one of production, not p e rs u a s io n and consequently, the employer need only produce evidence that could allow a ratio n al fact-finder to conclude that the challenged employment action was not made for a d is c rim in a to ry reason. See, e.g., Davis v. Qualico Miscellaneous, Inc., 161 F. Supp. 2d 1314, 1 3 2 1 (M.D. Ala. 2001). If such a reason is produced, a plaintiff then has the ultimate burden of proving the re a s o n to be a pretext for unlawful discrimination. See, e.g., Holifield, 115 F.3d at 1565; C o m b s v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (plaintiff "has the o p p o rtu n ity to discredit the defendant's proffered reasons for its decision"). Thus, once the

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e m p lo ye r articulates a legitimate, non-discriminatory reason, the burden returns to the e m p lo ye e to supply "evidence, including the previously produced evidence establishing the p r im a facie case, sufficient to permit a reasonable fact-finder to conclude that the reasons g iv e n by the employer were not the real reasons for the adverse employment decision." D a v is , 161 F. Supp. 2d at 1322 (citing Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th C ir. 2000) (en banc)). The plaintiff may seek to demonstrate that the proffered reason was n o t the true reason for the employment decision "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the e m p lo ye r's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256; C o m b s , 106 F.3d at 1528. A plaintiff's prima facie case, combined with sufficient evidence t o find that the employer's asserted justification is false, may permit the trier of fact to c o n c lu d e that the employer unlawfully discriminated. Reeves v. Sanderson Plumbing Prods., In c ., 530 U.S. 133, 148 (2000). Here the Board's proffered legitimate, non-discriminatory reason for its decision not to hire Sims for the Lunchroom Worker position is that she did not meet the posted job q u a lif ic a tio n . Thus, the Board easily satisfies its intermediate burden under the McDonnell D o u g l a s analysis. The Board further contends that Sims cannot show that this reason is p retex tual. When the evidence is viewed in the light most favorable to Sims, the Court ca n n o t say that no reasonable jury could find that the proffered legitimate, non-discriminatory re a so n is false. To the contrary, a reasonable jury could conclude that the Board unlawfully

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d is c rim in a te d against Sims on the basis of either her race or her sex or both. Thus, the B o a r d 's motion for summary judgment on the disparate treatment claims is due to be D E N IE D . B . RETALIATION CLAIM T h e anti-retaliation provision of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2 0 0 0 e -3 (a ), prohibits employer actions that "discriminate against" an employee because she h a s "opposed" practices that Title VII forbids or because she has "made a charge, testified, a ss is te d , or participated in" a Title VII "investigation, proceeding, or hearing." The

p ro v is i o n is not restricted to discriminatory employer actions that affect the terms and c o n d itio n s of employment encompassed by Title VII's substantive discrimination ban, 42 U .S .C . § 2000e-2(a). In fact, retaliation claims can be pursued based on actions that go b e yo n d workplace-related or employment-related retaliatory acts and harm. In short, the p ro v is io n extends to materially adverse nonemployment-related discriminatory actions that m ig h t dissuade a reasonable employee from lodging a discrimination charge. See Burlington N o rth e rn & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006). It is well-established that a f o rm e r employee, such as Sims, can assert a claim that she was given negative references in re ta lia tio n for engaging in protected activity. Robinson v. Shell Oil Co., 519 U.S. 337 (1997). W ith respect to the retaliation claim, Sims has no direct evidence. Instead, this claim m u s t only be analyzed under the circumstantial evidence paradigm. To establish a prima f a cie case of retaliation, an employee must show: (1) she engaged in protected activity; (2) 18

h e r employer was aware of that activity; (3) she suffered adverse employment action; and (4) th e re was a causal link between her protected activity and the adverse employment action. S e e , e.g., Maniccia v. Brown, 171 F.3d 1364, 1369 (11th Cir. 1999) (citing Little v. United T e c h ., 103 F.3d 956, 959 (11th Cir. 1997)). T h e Board does not dispute that Sims satisfied the first element of the prima facie c a se . "To establish that a plaintiff engaged in statutorily protected expression, ... a plaintiff m u st show that [he] `had a good faith, reasonable belief that the employer was engaged in u n la w f u l employment practices.'" Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th C ir. 2002). Protected expression includes filing complaints with the EEOC or through an e m p lo ye r' s internal grievance procedure. Berman v. Orkin Exterminating Co., 160 F.3d 697, 7 0 2 (11th Cir. 1998) (filing EEOC complaint is protected conduct); Rollins v. Florida Dep't o f Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989) (internal complaints of d is c rim in a tio n are statutorily protected conduct). Sims made both information internal c o m p lain ts of discrimination to Forbus and a formal complaint to the EEOC. Moreover, it is not disputed that Forbus was aware of both Sims' formal complaint to the EEOC and her e a rlie r informal complaints of discrimination prior to the date on which she gave the negative re f ere n c e regarding Sims which prevented her from getting a job. The Board's contention th a t the negative job reference which caused Sims not to be hired for a position is not a m a te ria lly adverse employment discrimination is meritless and does not warrant further

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d is c u ss io n .1 3 See, e.g., Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2 0 0 6 ) (explaining that the anti-retaliation provision protects an individual from retaliation th a t produces an injury or harm material enough that it well might have dissuaded a r e a so n a b l e worker from making or supporting a charge of discrimination). Receiving a false o r unfair job reference which results in the denial of other employment satisfies the Supreme C o u rt's requirement in this regard. The Board also argues that Sims cannot offer evidence in support of the causation e l e m e n t of the prima facie case of retaliation. Close temporal proximity between the p ro te c te d conduct and the adverse action constitutes circumstantial evidence of causation, h o w e v e r , the protected conduct or at least the employers' discovery of that conduct must im m e d ia te ly precede the adverse action for the negative inference to attach. See, e.g., Clark C o u n ty Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citing affirmatively several court o f appeals decisions for the proposition that a three to four month gap is insufficient to e sta b lish the causal relation prong in a retaliation case); Wascura v. City of South Miami, 257 F .3 d 1238, 1244-45 (11th Cir. 2001) (While a close temporal proximity between two events m a y support a finding of a causal connection between those two events, the three and oneh a lf month period between plaintiff's protected conduct and the adverse employment action c h a llen g e d does not, standing alone, establish a causal connection); Keel v. United States D e p 't of Air Force, 256 F. Supp. 2d 1269, 1291 (M.D. Ala. 2003) (more than seven month

13

The Board cites no legal precedent for this contention. 20

g a p between protected conduct and allegedly retaliatory conduct was insufficient as a matter o f law to establish the causation element of the prima facie case of retaliation). Here it is u n d is p u te d that Sims filed her EEOC charge in November of 2006. At that time, Forbus was o n a leave of absence from Central High. A reasonable jury could find from the evidence b e f o re this Court that Forbus learned of and read Sims' EEOC Charge in early April of 2007, w h e n she was asked to provide the affidavit as part of the Board's response to the Charge. It is also undisputed that Forbus spoke to a reference checking service about Sims in April o f 2007. According to records of that service, Forbus provided negative information about S im s , some of which was not correct. From the evidence, a reasonable jury could find that S im s has established a causal connection between the retaliatory conduct and her complaint to the EEOC of discrimination.14 A s its legitimate non-retaliatory reason for the job reference, the Board argues that F o r b u s was not authorized to speak for it and that she gave a truthful personal reference a b o u t Sims. The Court finds that genuine issues of material fact regarding whether Forbus w a s authorized to speak and whether she gave a truthful personal reference preclude s u m m a ry judgment on Sims' retaliation claims. For this reason, the Board's motion for s u m m a ry judgment is due to be DENIED as to Sims' retaliation claim.
14

The Board argues that Forbus' knowledge of Sims' earlier informal complaints is th e key triggering event. The Court disagrees. A reasonable jury could find that it is one th in g to hear about an informal complaint and quite another to later learn that the accusation o f discriminatory animus has been formally reported to a federal agency. The timing b e tw e e n the formal report and the retaliatory conduct is therefore the relevant inquiry in this c a se . 21

C O N C L U SIO N F o r the reasons stated above, it is hereby ORDERED as that the Motion for Summary Ju d g m e n t on Behalf of Defendant Coosa County Board of Education (Doc. # 12) is D E N IE D . D O N E this the 2 n d day of September, 2008. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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