Burkette v. Montgomery County Board of Education et al

Filing 30

RECOMMENDATION of the Magistrate Judge that: (1) defendants' 35 Motion for Summary Judgment be granted in part and denied in part; (2) all claims against defendant Washington in his official and individual capacity be dismissed with prejudice; (3) plaintiff's claims brought pursuant to 42 USC 1983 be dismissed with prejudice; (4) plaintiff's Title VII claims related to the Athletic Director position be dismissed as time-barred; (5) the motion for summary judgment be denied as to the assertion that the claims related to the Assistant Football Coach position are jurisdictionally barred; (6) plaintiff's Title VII race discrimination claim related to the Assistant Football coach position be dismissed with prejudice because plaintiff failed to establish a prima facie case; (7) the sole remaining claim pending before the Court is plaintiff's retaliation claim related to the Assistant Football Coach position. Objections to R&R due by 11/10/2008. Signed by Honorable Terry F. Moorer on 10/28/08. (sl, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION D A V ID MICHAEL BURKETTE, P la in tif f , v. M O N T G O M E R Y COUNTY BOARD O F EDUCATION, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:07-cv-1121-WKW [w o]

R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE P u r s u a n t to 28 U.S.C. § 636(b)(1) this case was referred to the undersigned United S ta te s Magistrate Judge for review and submission of a report with recommended findings o f fact and conclusions of law (Doc. 9, filed January 29, 2008). Pending before the Court are Defendants' Motion for Summary Judgment and supporting documentation (Docs. 16-17, f ile d July 18, 2008). For good cause, it is the recommendation of the Magistrate Judge the M o t io n for Summary Judgment be GRANTED in part and DENIED in part as set forth b e lo w . I. PARTIES

Pro se plaintiff, David Michael Burkette ("Burkette" or "Plaintiff") is a resides in M o n tg o m e ry, Alabama which is in the Middle District of Alabama. Defendant Montgomery County Board of Education. ("MCBOE") is the legal entity ch arg ed with the general administration and supervision of public schools in Montgomery Page 1 of 25

C o u n ty. Defendant Lewis Washington ("Washington") was the Principal of Lanier High S c h o o l from 1999 to 2007 and has been sued in his individual capacity. Collectively, M C B O E and Washington shall be referred to as "Defendants." II. JURISDICTION

T h e district court has subject matter jurisdiction over the claims in this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1343 (civil rights), 42 U.S.C. § 2000e-5 (Title VII), and 42 U.S.C. § 1983 (Civil Rights Act of 1871, as amended). The p a rties do not contest personal jurisdiction or venue, and there are adequate allegations to s u p p o rt both. III. NATURE OF THE CASE & MOTION FOR SUMMARY JUDGMENT

T h e underlying facts of this case are necessarily viewed in favor of the nonmovant pro s e Plaintiff. Burkette initiated this action on December 26, 2007. See Doc. 1. In his c o m p la in t, Burkette asserts claims pursuant to Title VII and 42 U.S.C. § 1983. Id. Burkette s p e c if ic a lly alleges the Defendants did not hire him for certain positions due to his race (A f ric a n American) and in retaliation for his prior EEOC complaints and the resulting litig a tio n . The complaint provides minimal details as to the factual basis of his claims. Burkette, a black male, asserts claims related to the failure to hire him for certain other positions in the s c h o o l district. Specifically he was not hired as the Athletic Director/Head Football Coach o r the Assistant Football Coach at Lanier High School. . Id. at ¶¶ 8-10. He avers he was not

Page 2 of 25

h ire d because of his race and because in the past he had filed other discrimination charges a g a in s t the MCBOE. On July 17, 2008, Defendants submitted their Motion for Summary Judgment and s u p p o rtin g documentation. See Docs. 16-17. In the motion, Defendants assert all the claims s h o u ld be dismissed as there are no material facts at issue because Burkette's claims are not o n ly administratively barred, but also fail to establish his prima facie cases for his respective c la im s under Title VII and § 1983. B u rk e tte filed his response on August 15, 2008 - one week after the Court's deadline. S e e Doc. 20. Burkette's response included the "Declaration of David Burkette" as well as f o u rte e n affidavits from various individuals. On August 20, 2008, Defendants filed their m o tio n to strike the response. See Doc. 21. The Court held a telephonic hearing on the m a tte r on September 24, 2008. Burkette explained that he misunderstood the deadline as he b e lie v e d the "reply" deadline was the one he needed to follow. Further, he stated he m is u n d e r sto o d some comments by defense counsel wherein he still concluded that August 1 5 , 2008 was his deadline to response to the motion for summary judgment. Because the re sp o n s e was only 5 business days late, the Court permitted Burkette to file his response and d e n ie d Defendants' motion to strike. The Court also allowed Defendants to file a reply to th e response. In their reply, Defendants state the submitted documents "contain extensive hearsay, s p e c u la tio n and conjecture and are each, at least in part, due to be stricken from

Page 3 of 25

c o n sid e ra tio n ." See Doc. 29 at p. 2. Defendants also state "to the extent the submitted d o c u m e n ts contain material not based on personal knowledge, the same are similarly due to b e stricken." Id. However, Defendants do not state with any specificity which portions of th e extensive affidavits they wish stricken. Thus, the Court will not strike any of the s u b m itte d affidavits or declaration, but will construe the requests to strike as additional a rg u m e n t in reply to Plaintiff's response. Further, the Court will consider only evidence that is admissible on its face or can be reduced to admissible form and that complies with Federal R u le of Civil Procedure 56(e). Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2 5 4 8 , 2553, 91 L.Ed.2d 265 (1986); Macuba v. DeBoer, 193 F.3d 1316, 1322-24 (11th Cir. 1 9 9 9 ). I V . SUMMARY JUDGEMENT STANDARD A party in a lawsuit may move a court to enter summary judgment before trial. FED. R . CIV. P. 56(a) and (b). Summary judgment is appropriate when the moving party

e sta b lish e s that there is no genuine issue of material fact and the moving party is entitled to ju d g m e n t as a matter of law. FED. R. CIV. P. 56(c); Celotex, 477 U.S. at 322-24, 106 S.Ct. a t 2552-54; Gonzalez v. Lee County Housing Authority, 161 F.3d 1290, 1294 (11th Cir. 1 9 9 8 ). "[T]he substantive law will identify which facts are material." Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). At the su m m a ry judgment juncture, the court does not "weigh the evidence and determine the truth o f the matter," but solely "determine[s] whether there is a genuine issue for trial." Id. at 249.

Page 4 of 25

O n ly disputes about the material facts will preclude the granting of summary judgment. Id. A material fact is one "that might affect the outcome of the suit under governing law," and a dispute about a material fact is "genuine" "if the evidence is such that a reasonable jury c o u ld return a verdict for the nonmoving party." Id.; see also Slomcenski v. Citibank, N.A., 4 3 2 F.3d 1271, 1277 (11th Cir. 2005) (quoting Hudgens v. Bell Helicopters/Textron, 328 F .3 d 1329, 1344-45 (11th Cir. 2003)) ("In determining whether an issue of fact is `genuine' f o r the purpose of defeating summary judgment, we ask whether the evidence is `such that a reasonable jury could return a verdict for the nonmoving party.'"). Thus, the initial burden o f proof rests on the movant. Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; Gonzalez, 161 F .3 d at 1294. This burden is satisfied when the movant shows that if the evidentiary record w e re reduced to admissible evidence at trial, it would be insufficient to permit the nonm o v a n t from carrying its burden of proof. Celotex, 477 U.S. at 322-23; 106 S.Ct. at 2552-53. T h e admissibility of evidence is subject to the same standards and rules that govern a d m is s ib ility of evidence at trial. Clemons v. Dougherty County, Georgia, 684 F.2d 1365, 1 3 6 9 n.5 (11th Cir. 1982) (citing Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 556 (5th Cir. 1980)). Once the movant meets its burden under Rule 56, the non-movant must designate s p e c if ic facts showing there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Z e n ith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). C o n c lu s o ry assertions, unsupported by specific facts, presented in affidavits opposing the

Page 5 of 25

m o tio n for summary judgment are likewise insufficient to defeat a proper motion for s u m m a ry judgment. Lejaun v. Nat'l Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 1 1 1 L.Ed.2d 695 (1990); see also Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (c o n c lu s o r y assertions in absence of supporting evidence are insufficient to withstand su m m a ry judgment). The party opposing summary judgment must respond by setting forth s p e c if ic evidence in the record and articulating the precise manner in which that evidence s u p p o r ts his or her claim, and my not rest upon the mere allegations or denials of the p le a d in g s . FED. R. CIV. P. 56(e); Johnson v. Board of Regents of University of Georgia, 263 F .3 d 1234, 1264 (11th Cir. 2001). If the evidence is merely colorable or is not significantly p ro b a tiv e , summary judgment may be granted. See Anderson, 477 U.S. at 249-50, 106 S.Ct. a t 2511 (citations omitted). Thus, to avoid summary judgment, the nonmoving party "must d o more than simply show that there is some metaphysical doubt as to the material facts." M a t su s h i ta Elec. Indus., 475 U.S. at 586 106 S.Ct. at 1356 (citations omitted). In determining whether a genuine issue for trial exists, the court must view all the e v id e n c e in the light most favorable to the nonmovant. McCormick v. City of Fort

L a u d e rd a le , 333 F.3d 1234, 1243 (11th Cir. 2003); Johnson, 263 F.3d at 1242-43. Further, " a ll justifiable inferences are to be drawn in [that party's] favor." Anderson, 477 U.S. at 255; 1 0 6 S.Ct. at 2513; see also McCormick, 333 F.3d at 1243 (the evidence and all reasonable inf ere n ce s from the evidence must be viewed in the light most favorable to the nonmovant). If the non-moving party fails to make a showing sufficient to establish the existence of an

Page 6 of 25

elem en t essential to its case on which it will bear the burden of proof at trial, summary j u d g m e n t must be granted. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. In other w o rd s , summary judgment is proper after adequate time for discovery and upon motion a g a in s t a party who fails to make a showing sufficient to establish the existence of an element e s s e n tia l to that party's case. Id. at 322, 106 S.Ct. at 2552. In addition, all litigants, pro se or not, must comply with the Federal Rules of Civil P r o c e d u re . Although the court is required to liberally construe a pro se litigant's pleadings, th e court does not have "license to serve as de facto counsel for a party. . .or to rewrite an o th e rw is e deficient pleading in order to sustain an action." GJR Investments, Inc. v. County o f Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted). V. DISCUSSION AND ANALYSIS A. S e c tio n 1983 claims " S e c tio n 1983 is not itself a source of substantive rights, but merely provides a method f o r vindicating federal rights elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271, 1 1 4 S.Ct. 807, 811, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n . 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979)). It is well established that an a lle g a tio n of a Title VII violation cannot provide the sole basis for a § 1983 claim. Arrington v . Cobb County, 139 F.3d 865, 872 (11th Cir. 1998) (citations omitted). A plaintiff may b rin g a § 1983 claim for a violation of Fourteenth Amendment right to equal protection. See id . (citing Johnson v. City of Fort Lauderdale, 114 F.3d 1089, 1092 (11th Cir. 1997) (Title

Page 7 of 25

V II does not preempt a Fourteenth Amendment cause of action for employment d i sc r im in a t io n under § 1983)). However, Burkette makes no reference to the Fourteenth A m e n d m e n t in his Complaint and thus the Court must conclude Burkette rests his § 1983 c la im solely on his Title VII claims. See Doc. 1 generally. As such, summary judgment must b e granted as to the § 1983 claims. B. S t a tu t e of Limitations as to Athletic Director Position T itle VII provides certain prerequisites that must be satisfied before a plaintiff can file a civil action under Title VII. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122 S .C t. 2061, 2070, 153 L.Ed.2d 106 (2002) (citing Burkette v. Gardner-Denver Co., 415 U.S. 3 6 , 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)). Specifically, "[a] charge . . . shall be filed w ith in one hundred and eighty days after the alleged unlawful employment practice o c c u rre d ." 42 U.S.C. § 2000e-(5)(e)(1); see also Pijnenburg v. West Ga. Health Sys., Inc., 2 5 5 F.3d 1304, 1305 (11th Cir. 2001) ("It is settled law that in order to obtain judicial c o n sid e ra tio n of such a claim, a plaintiff must first file an administrative charge with the E E O C within 180 days after the alleged unlawful employment practice occurred."). Thus, if a plaintiff fails to file an EEOC charge before the 180 day limitations period, the s u b s e q u e n t suit is time barred. The determination of whether a plaintiff has filed a timely EEOC charge depends on w h e n the alleged unlawful employment practice occurred. Thomas v. Alabama Council on H u m a n Relations, Inc., 248 F.Supp.2d 1105, 1115 (M.D. Ala. 2003). In cases involving

Page 8 of 25

d is c re te retaliatory or discriminatory acts such as termination, failure to promote, denial of tran sfe r, or refusal to hire, the act occurs on the day that it happens. Morgan, 536 U.S. at 1 1 0 , 122 S.Ct. at 2070. Therefore, a party must file a charge within 180 days of the date of t h e act or lose the ability to recover for it. Id., 122 S.Ct. at 2071. "Each incident of d isc r im in a tio n and each retaliatory adverse employment decision constitutes a separate a c tio n a b le `unlawful employment practice.'" Id. at 114, 122 S.Ct. at 2073. As such, "discrete d isc rim in a to ry acts are not actionable if time barred, even when they are related to acts a lle g e d in timely filed charges." Id. at 113, 122 S.Ct. at 2072. B u rk e tte alleges discrimination and retaliation under Title VII with regard to the A th le tic Director Position for which he was not hired in June 2006. See Doc. 1 at ¶ 10. L.C. C o le , the person hired in the position, was hired on June 20, 2006. See Doc. 16, Exhibit 3, " 6 / 2 0 /0 6 Personnel Action Report." Thus, any EEOC charge stemming from this action must b e filed within 180 days of June 20, 2006. Burkette did not file his EEOC charge of d is c rim in a tio n until January 5, 2007. See Doc. 16, Exhibit 5. As such, Burkette filed his E E O C charge beyond 180 days as to the Athletic Director position, and thus his Title VII c la im s are untimely. C. F a ilu r e to Exhaust as to Assistant Football Coach Position B u rk e tte alleges in his Complaint Title VII claims of discrimination and retaliation a s the basis for his non-selection for the Assistant Football Coach position in August or S e p te m b e r 2006. See Doc. 1 at ¶ 8-9. Defendants state these claims are barred because they

Page 9 of 25

w e re not alleged in the EEOC charge of discrimination. See Doc. 17 at p. 10. Defendants a ttac h the EEOC Charge and Affidavit as Exhibit 5 to their Motion for Summary Judgment. S e e Doc. 16, Exhibit 5. "The starting point for determining the permissible scope of the judicial complaint is th e EEOC charge and investigation." Houston v. Army Fleet Servs., L.L.C., 509 F.Supp.2d 1 0 3 3 , 1042 (M.D. Ala. 2007) (quoting Evans v. U.S. Pipe & Foundry, Co., 696 F.2d 925, 929 (11 th Cir. 1983)). The factual statement contained in the charge of discrimination is where th e Court should look as to what was alleged. See Sanchez v. Standard Brands, Inc., 431 F .2 d 455, 466 (5th Cir. 1970) 1 (The "crucial element of a charge of discrimination is the f a c tu a l statement contained therein."). "[A] charging party's failure to check the appropriate b o x on the EEOC charge of discrimination form indicating what he believes to be the basis f o r the discrimination (i.e. race, color, sex, disability, retaliation, national origin, age, or re lig io n ) does not bar the plaintiff from litigating a claim so long as the factual allegations in the EEOC charge are sufficient. Houston, 509 F.Supp.2d at 1042 (citing Sanchez, 431 F .2 d at 462-63); see also Gregory v. Georgia Dep't of Human Resources, 355 F.3d 1277, 1 2 8 0 (11th Cir. 2004) (EEOC charge prepared without assistance of counsel should be c o n st ru e d liberally and failure to check a box on the template form does not preclude a c la im ). Thus, the fact Burkette did not check the "race" box on the front of the charge of

See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981). Page 10 of 25

1

d i s c rim in a tio n form does not preclude him from litigating the claim as long as the race d is c rim in a tio n claim is contained in the factual allegations detailed in the charge. See Doc. 1 6 , Exhibit 5. Thus, the Court looks to the affidavit attached to the Charge of

D is c rim in a tio n . Id. T h e Court's review of the affidavit shows the Assistant Football Coach position was a lle g e d in the underlying EEOC. Specifically, on page 10 of the affidavit2 Burkette states " [ o ]n August 22, 2006, a teacher and coach hired by Principal Washington was terminated b e c au s e of an unfavorable criminal background. The employee had the assignment of a ss ista n t football and head junior varsity basketball coach" and "[o]n August 26, 2006, this `te rm in a te d ' coach coached in a football contest at Wilcox Central after being removed from th e classroom on 8/23/06." See Doc. 16, Exhibit 5. Later on page 15 Burkette states "[o]n S ep te m b er 12, 2006, Washington hired an assistant coach to replace the dismissed coach (8 /2 6 /0 8 ). However, this newly hired coach was the same coach who was dismissed by f o rm a l [sic] athletic director, Richard Moncrief for abusing a football player. (August 2005)." T h u s , the Court is satisfied that the assistant football coach position was referenced in the E E O C charge. Next, the Court must discern whether Defendants have established for summary ju d g m e n t purposes that there was no reference to race discrimination and retaliation in re latio n to the assistant football coach position. Burkette clearly states he has filed multiple The page numbers the Court uses are those in the original affidavit drafted by Burkette provided at the bottom of the page. Page 11 of 25
2

E E O C complaints and EEOC lawsuits against the MCBOE due to "their continued retaliatory a n d discriminatory actions against me." See Doc. 16, Exhibit 5 Affidavit at p. 1. With regard to the retaliation claim, the substance of the EEOC charge, including the check mark on the f ro n t of the cover page, firmly establishes Burkette asserts a clear charge of retaliation as to th e Assistant Football Coach position. Consequently, Defendants fail to successfully raise a procedural bar to the Assistant Football Coach retaliation allegation. The assertion of a race discrimination claim is not as clear. However, as noted in the s u m m a r y judgment standard section, the court must view all the evidence in the light most f a v o ra b le to the nonmovant and draw all reasonable inferences in favor of the nonmovant. E x h ib it 5 to Defendants' motion for summary judgment - the EEOC charge and affidavit a b ru p tly stops at page 20 of the affidavit and from the content of the affidavit it would appear th e EEOC charge attached to the motion for summary judgment is incomplete.3 C o n se q u e n tly, based on the general allegations referenced on page one and fact Defendants a p p a re n tly did not attach the entire affidavit to the EEOC charge of discrimination, D e f en d a n ts fail to establish for summary judgment purposes that the allegations of d iscrim inatio n as to the Assistant Football Coach are procedurally barred. Thus, the Court lo o k s to the merits of the allegations relating to the Assistant Football Coach.

The Court acknowledges the possibility that Burkette's EEOC affidavit may end on an incomplete sentence, but notes it is merely a possibility. Thus, since Burkette is the nonmovant, all reasonable inferences must be in his favor. In this instance, the reasonable inference is that the affidavit attached by Defendants is incomplete. Page 12 of 25

3

D.

C la im s against Washington W a sh in g to n asserts he cannot be held liable in his individual capacity as individual

c a p a c ity lawsuits are disallowed under Title VII. See Doc. 17 at p. 9. In the Eleventh C irc u it, a plaintiff may not bring a Title VII claim against an employer's agent in his in d iv id u a l capacity. See Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996) (no ind ividu al responsibility under Title VII); Busby v. City of Orlando, 931 F.2d 764, 772 (11th C ir. 1991) ("The relief granted under Title VII is against the employer, not the individual em p loyee s whose actions would constitute a violation of the Act.") (emphasis in original); s e e also Cross v. Alabama Dep't of Mental Health & Mental Retardation, 49 F.3d 1490, 1 5 0 4 (11th Cir. 1995) (affirming the Busby holding after the 1991 amendments to Title VII a n d holding liability under Title VII is limited to official-capacity actions). Therefore, B u r k e tt' s claims against the Washington in his individual capacity warrant dismissal as a m atte r of law. A plaintiff may bring a Title VII suit against an individual in his official capacity. See C r o s s, 49 F.3d at 1504. However, when a plaintiff names both the employer and the in d iv id u a l supervisor in his official capacity, the supervisor may be dismissed from the a c tio n . See Taylor v. Alabama, 95 F.Supp.2d 1297, 1309 (M.D. Ala. 2000) (citing Cross, 49 F .3 d at 1504) (where a Title VII plaintiff names the employer as a defendant, any of the e m p lo ye r's supervisory officials also named in the complaint may be dismissed from the a c tio n ); see also Moss v. W & A Cleaners, 111 F.Supp.2d 1181, 1187 (M.D. Ala. 2000) ("If

Page 13 of 25

a Title VII plaintiff names his or her employer as a defendant, any of the employer's agents a lso named in the complaint may be dismissed from the action."). As Burkette brings his T itle VII claim against the MCBOE, the Title VII complaints against Washington in his o f f ic ia l capacity are redundant and therefore due dismissal. E. T itle VII claims against MCBOE as to Assistant Football Coach Position B u rk e tte raises two claims under Title VII because he was not being hired as the A ss is ta n t Football Coach.4 His primary claim focuses on alleged retaliation by the MCBOE f o r his prior EEOC claims and litigation. His second claim focuses on perceived racial d isc rim in a tio n , but it is unclear whether Burkette alleges a failure to promote or a failure to h ire claim. Regardless, failure to promote and failure to hire claims are analyzed under s im ila r legal standards thus the Court will address both. i. R a c e Discrimination

U n d e r Title VII, it is "an unlawful employment practice for an employer to fail or re f u se to hire or to discharge any individual, or otherwise to discriminate against any in d iv id u a l with respect to his compensation, terms, conditions, or privileges of employment, b e c a u s e of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2 0 0 0 e -2 (a )(1 ). Burkette asserts a disparate treatment claim based on his race in violation of T itle VII. See Doc. 1 at ¶¶ 11-15. "A claim of disparate treatment alleges that an individual e m p lo ye e received less favorable treatment due to the employee's race, color, sex, religion, As previously discussed, the Athletic Director position is barred as untimely, thus the Court will not discuss those allegations further. Page 14 of 25
4

o r national origin." Wright v. Dep't of Corrections, 31 F.Supp.2d 1336, 1342 (M.D. Ala. 1 9 9 8 ); accord Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S .C t. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). With regard to disparate treatment claims u n d e r Title VII, a plaintiff must prove that the defendant acted with discriminatory purpose. W illia m s v. Motorola, Inc., 303 F.3d 1284, 1293 (11th Cir. 2002) (citation omitted). S p e c if ic a lly, a plaintiff must present either (1) statistical proof of a pattern of discrimination, (2 ) direct evidence of discrimination, which consists of evidence which, if believed, would p ro v e the existence of discrimination without inference or presumption, or (3) circumstantial e v i d e n c e of discriminatory intent using the framework established in McDonnell Douglas C o r p . v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). See H o lifield , 115 F.3d at 1561-62; Wright, 31 F.Supp.2d at 1342. In the case at hand, there is n o indication of statistic proof of a pattern of discrimination. Next, Burkette does make c o n c lu s o ry remarks that he was told the assistant coach position was specifically meant for a white person, but he presents no admissible evidence of direct evidence of discrimination. S e e Doc. 1 at ¶ 9. "Only the most blatant remarks, whose intent could mean nothing other th a n to discriminate on the basis of some impermissible factor constitute direct evidence of d is c rim in a tio n ." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (in te rn a l quotations and citations omitted). "If the alleged statement suggests, but does not p ro v e , a discriminatory motive, then it is circumstantial evidence." Id. (citations omitted). A s a result, this circumstantial evidence case proceeds under the burden-shifting framework

Page 15 of 25

o f McDonnell Douglas and its progeny. First, under McDonnell Douglas, a plaintiff must create an inference of discrimination b y establishing a prima facie case. Williams, 303 F.3d at 1293. Next, should the plaintiff e sta b lis h a prima facie case, the burden shifts to the defendant to present legitimate, n o n d is c rim in a to ry reasons for the employment action. Holifield, 115 F.3d at 1564. Although th e establishment of a prima facie case shifts the burden of production to the defendant, it d o e s not reallocate the burden of persuasion. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 5 0 7 , 113 S.Ct. 2742, 2747,125 L.Ed.2d 407 (1993) (quoting Texas Dep't of Cmty Affairs v. B u r d in e , 450 U.S. 248, 253, 101 S.Ct.1089, 1093, 67 L.Ed.2d 207 (1981) ("The ultimate b u r d e n of persuading the trier of fact that the defendant intentionally discriminated against th e plaintiff remains at all times with the plaintiff.")). Once defendant has presented a leg itim a te, nondiscriminatory reason for its action, the burden shifts back to the plaintiff to p ro d u c e "sufficient evidence to find that the employer's asserted justification is false" and in reality, a pretext for unlawful intentional discrimination. Reeves v. Sanderson Plumbing P r o d s ., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000). In other w o rd s, at the summary judgment stage, the plaintiff may survive by providing a prima facie c a se and evidence sufficient for a jury to find that the employer's proffered explanation is f a ls e . Reeves, 530 U.S. at 147-48, 120 S.Ct. at 2108-09. F o r a failure to promote claim, under the McDonnell Douglas analysis, Burkette must f irs t establish a prima facie case by showing: (1) he was a member of a protected class; (2)

Page 16 of 25

h e was qualified for and applied for the promotion; (3) he was rejected despite his q u a lif ic a tio n s ; and (4) other equally or less qualified employees who were not members of th e protected class were promoted. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (1 1 th Cir. 2004) (citing Lee v. GTE Florida, Inc., 226 F.3d 1249, 1253 (11th Cir. 2000)). For a failure to hire claim, the elements are substantially the same: (1) he was a member of a p ro te c te d class; (2) he applied and was qualified for a position for which the defendant was a c c e p tin g applications; (3) despite his qualifications, he was not hired; and (4) after his r e j e c t io n the position remained open or was filled by a person outside his protected class. S c h o e n feld v. Babbitt, 168 F.3d 1257, 1267 (11th Cir. 1999) (citing Welborn v. Reynolds M e ta ls Co., 810 F.2d 1026, 1028 (11th Cir. 1987)); see also Godoy v. Habersham County, 2 1 1 Fed. Appx. 850, 853 (11th Cir. 2006) (unpublished) (citing prima facie elements from S c h o e n feld ). The burden to establish a prima facie case is not intended to be "onerous," but re q u ire s only that the plaintiff establish adequate facts to permit an inference of d is c rim in a tio n . Holifield, 115 F.3d at 1562 (citations omitted). It is undisputed that Burkette's race is protected under Title VII and that he was not s e le c te d for the Assistant Football Coach position. Further, Defendants do not claim that B u rk e tte was unqualified for the position. Thus, elements one, two, and three are satisfied a n d only element four is in dispute. As to element four, Burkette must show the position either remained open or the se lec tio n of someone outside the protected class. Again, the establishment of a prima facie

Page 17 of 25

c a s e is not meant to be an onerous burden. See Holifield, 115 F.3d at 1562. Burkette avers L e ste r Henderson, a white male, was selected for the position. Uncontroverted evidence s u b m itte d by MCBOE shows neither Henderson nor any other white male was hired for an a s s is ta n t football coaching position. See Doc. 16, Exhibit 2, "Affidavit of Jimmy Barker"; D o c . 16, Exhibit 4, "September 26, 2006 Personnel Action Report - Coaching Supplements R o ste r for Lanier High School." Rather, the three positions approved for that year were all f ille d by black males. See Doc. 17 at p. 6 and Exhibit 4. While Burkette continues to assert in his response to the motion for summary judgment that a white male was hired, he does not p re se n t any evidentiary support to contradict MCBOE's evidence that no white male was h i re d to fill an assistant football coaching position that year. See Doc. 20 generally. C o n c lu s o ry assertions in absence of supporting evidence are insufficient to withstand s u m m a ry judgment. Holifield, 115 F.3d at 1564 n.6; see also Williams v. Hager Hinge, 916 F .S u p p . 1163 (M.D. Ala. 1995) (citing Evers v. General Motors Corp., 770 F.2d 984, 986 (1 1 th Cir. 1985)) ("Bald conclusions, opinions, and hearsay without supporting specific facts a re not admissible and do not create a genuine issue of material fact."). In fact, the evidence B u rk e tte attached to his response, specifically a number of affidavits, relates solely to his c la im s of retaliation. Id. Burkette is unable to establish a prima facie case of race

d is c rim in a tio n , hence there is no need to continue with the McDonnell Douglas analysis and s u m m a ry judgment is proper as to the discrimination claim.

Page 18 of 25

ii.

R e ta lia tio n

R e t a lia tio n is a separate offense under Title VII. See 42 U.S.C. § 2000e-3(a). To re c o v er for retaliation, the plaintiff "need not prove the underlying claim of discrimination w h ic h led to her protest," so long as she had a reasonable good faith belief that the d is c rim in a tio n existed. Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1021 (11th Cir. 1 9 9 4 ) (citing Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491 (11th Cir. 1 9 8 9 )). Title VII recognizes two forms of statutorily protected conduct. § 2000e-3(a). An e m p lo ye e is protected from discrimination if (1) "he has opposed any practice made an u n la w f u l employment practice by this subchapter" or (2) "he has made a charge, testified, a ss iste d or participated in any manner in an investigation, proceeding, or hearing under this s u b c h a p te r." Id. A plaintiff asserting a Title VII retaliation claim may attempt to establish his claim b y offering either direct or circumstantial evidence. See Pollard v. Montgomery County, 66 F .S u p p .2 d 1218, 1226-27 (M.D. Ala. 1999); see also Merritt v. Dillard Paper Co., 120 F.3d 1 1 8 1 , 1189-90 (11th Cir. 1997) (discussion of direct evidence for retaliation claim); H a m ilto n v. Montgomery County Bd. of Educ., 122 F.Supp. 1273, 1279-80 (M.D. Ala. 2000) (discu ssing use of direct evidence and circumstantial evidence for Title VII retaliation claim). D ire c t evidence is "evidence, which if believed, proves existence of fact in issue without in f e re n c e or presumption." Merritt, 120 F.3d at 1189 (quoting Rollins v. TechSouth, Inc., 8 3 3 F.2d 1525, 1528 n. 6 (11th Cir. 1987)). Evidence that only suggests discrimination or

Page 19 of 25

th a t is subject to more than one interpretation does not constitute direct evidence. Id. (in ter n a l citations omitted); see also Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1 9 9 9 ) ("If an alleged statement at best merely suggests a discriminatory motive, then it is by d e f in itio n only circumstantial evidence."). If the nonmovant presents direct evidence that " if believed by the jury, would be sufficient to win at trial, summary judgment is not a p p ro p ria te even where the movant presents conflicting evidence." Merritt, 120 F.3d at 1189 (q u o tin g Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)). But when a plaintiff relies on circumstantial evidence, then the familiar McDonnell Douglas burden s h if tin g analysis applies. Hamilton, 122 F.Supp.2d at 1283. If plaintiff should present direct e v id e n c e of retaliation, then by definition, it cannot be rebutted. Pollard, 66 F.Supp.2d at 1 2 3 2 n. 13. Whereas, with circumstantial evidence, the plaintiff must first establish a prima f a c ie case of retaliation. Id. "Stated another way, direct evidence generally is offered in lieu o f a prima facie case, whereas the establishment of a prima facie case is accomplished with c ir c u m s t a n tia l evidence." Id. Accordingly, the Court must first turn to the question of w h e th e r there was direct evidence of retaliation in this case. In its motion for summary judgment, MCBOE asserts Burkette fails to present direct o r circumstantial evidence of retaliation. In its reply, MCBOE simply focuses on the circu m stan tial analysis. However, in his response, Burkette attaches a signed and sworn D e c la ra tio n wherein he states Washington directly told him that he had been "blackballed" a n d would never be considered for any coaching or administrative positions because he had

Page 20 of 25

f ile d too many lawsuits against the Board. See Doc. 20, Exhibit A. An explicit statement by W a sh in g to n wherein he states Burkette will not be considered for any positions because of h is past EEOC litigation is direct evidence. MCBOE is correct that statements relayed by 3rd p a rtie s to Burkette about Washington's statements are hearsay and therefore inadmissible; h o w e v e r, statements made by Washington directly to Burkette are not hearsay and thus a d m is s ib le .5 See Doc. 20, Exhibit A at page 1. MCBOE asks the Court strike these portions o f the declaration averring that the declaration is inconsistent with Burkette's deposition te stim o n y and thus a "sham affidavit." As a result, the Court must look to the alleged in c o n s is te n c ie s between the deposition testimony and the declaration. See Thomas v. A la b a m a Counsel on Human Relations, Inc., 248 F.Supp.2d 1105, 1113 (M.D. Ala. 2003) (c itin g Rollins, 833 F.2d at 1530). MCBOE cites to statements made in Burkette's deposition wherein he testified as f o l lo w s : Q. Do you know if she or any board members told anybody that you could not h a v e the AD position because of your past lawsuits or any position because of yo u r past lawsuits? I'm not certain. The only thing I rely on is I continued to apply and continued to get denied. Do you know if she or any board members told anybody that you couldn't have th e position for any reason? No, ma'am. Past lawsuits, your race, they don't like the way you wear your coat or

A. Q. A. Q.
5

It is possible these 3rd parties could be called as witnesses which may render the information admissible. However, since statements made directly to Burkette are not hearsay, the Court need not determine whether the third party statements could be rendered to an admissible form for trial. Page 21 of 25

A.

a n yt h i n g ? No, ma'am.

S e e Doc. 29 at p. 5-6 citing Burkette Depo. p. 52 at lines 4-17. The above testimony relates to a line of questioning by counsel whether Ms. Purcell, the superintendent, or any other b o a rd members told anyone Burkette could not have the Athletic Director or any other p o s itio n because of his past lawsuits. However, MCBOE fails to note other portions of the d e p o sitio n which concur with his Declaration. For example, Burkette also testified as f o l lo w s : Q. A. D id Mr. Washington ever tell you that you could not be hired for offensive line c o a ch because of your lawsuits against the board? Y e s, ma'am. He said that I wouldn't be coaching period because of the p re v io u s lawsuits, and he informed L.C. Cole of the same. He informed c o m m itte e members of the selection committee - the hiring committee. He i n f o r m e d several members that it will be a waste of time if they hire me b e c au s e of my previous background or reputation of suing the board. I'm talking about what he told you. What did he tell you about you couldn't b e hired for this position or any coaching position because of your lawsuits? D id he tell you anything to your face? O h yes, Washington told me plenty of times. T e ll me about that. W a sh in g to n told me ­ He said, home boy, you're just as good as gone; you can ju st ­ I tried to help you in the past; I tried to help you to get into a d m i n i s tr a tio n , but there's really no future for you in coaching, Burkette ­ I c a n tell you that now ­ because of your lawsuits. Said, at some point man, yo u 'v e got to take the lick and keep going, you know; you can't continue to liv e off your lawsuits. W h e n was that conversation you had with him? T h a t was one of several conversations we had. That was in ­ As a matter of f a c t, that was the same day we had a convention with L.C. Cole, Lewis W ash in g to n , Mary Markum (phonetic). S u m m e r of `06? Y es ma'am. No. It was fall of `06. It was in September.

Q.

A. Q. A.

Q. A.

Q. A.

Page 22 of 25

S e e Doc. 16, Exhibit A, page 35, line 2 though page 36, line 13. At best, MCBOE may argue th e re are contradictions within Burkette's own deposition, not that the deposition testimony c o m p le te ly conflicts with the Declaration. Thus, the Court may consider the Declaration and t h e non-hearsay statements to make a decision. Burkette's statements about what

W a sh i n g t o n told him directly would be direct evidence of retaliation and the McDonnell D o u g la s framework is inapplicable. Further, MCBOE's discussion as to the "causal

c o n n e c tio n " prong of the prima facie case does not apply.6 Consequently, since there is d ire c t evidence of retaliation, summary judgment cannot be granted as to the retaliation claim f o r the assistant coach position. V I . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: (1) Defendants' Motion for Summary Judgment (Doc. 35) be GRANTED in part a n d DENIED in part. (2 ) A ll claims against Defendant Washington in his official and individual c a p ac ity be dismissed with prejudice (3 ) P lain tiff 's claims brought pursuant to 42 U.S.C. § 1983 be dismissed with p r e ju d ic e .

The Court does note that MCBOE focuses its discussion as to the "causal connection" on the temporal connection. While temporal proximity is certainly a factor for the court to consider, it is not the SOLE basis for establishing a causal connection. Regardless, because Burkette has presented direct evidence, a discussion on the use of circumstantial evidence to establish a prima facie case is not required. Page 23 of 25

6

(4 )

P la in tif f 's Title VII claims related to the Athletic Director position be d is m is s e d as time-barred.

(5 )

T h e motion for summary judgment be denied as to the assertion that the claims re la te d to the Assistant Football Coach position are jurisdictionally barred.

(6 )

P lain tiff 's Title VII race discrimination claim related to the Assistant Football c o a c h position be dismissed with prejudice because Plaintiff failed to establish a prima facie case.

(7 )

T h e sole remaining claim pending before the Court is Plaintiff's retaliation c la im related to the Assistant Football Coach position.

It is further ORDERED that the parties are DIRECTED to file any objections to the s a id Recommendation not later than November 10, 2008. Any objections filed must s p e c if ic a lly identify the findings in the Magistrate Judge's Recommendation objected to. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tr a t e Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein

Page 24 of 25

v . Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11th Cir. 1981, en banc) (adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S ep tem b er 30, 1981). D O N E this 28th day of October, 2008. /s / Terry F. Moorer T E R R Y F. MOORER U N IT E D STATES MAGISTRATE JUDGE

Page 25 of 25