Russaw v. Barbour County Board of Education
MEMORANDUM OPINION AND ORDER that BCBOE's 28 Motion for Summary Judgment is DENIED as further set out in the order. An order setting this case for trial will be entered separately. Signed by Chief Judge William Keith Watkins on 8/28/2012. (Attachments: # 1 Civil Appeals Checklist)(dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
FREDERICK M. RUSSAW,
BARBOUR COUNTY BOARD OF
) CASE NO. 2:11-CV-611-WKW
MEMORANDUM OPINION AND ORDER
This suit is a Title VII retaliation action against the Barbour County Board of
Education (“BCBOE” or “Board”). Plaintiff Frederick Russaw, who was employed
by BCBOE as a transportation technician, alleges that his employment was nonrenewed in retaliation for protected conduct. BCBOE has moved for summary
judgment on Mr. Russaw’s Title VII claim of retaliation. (Docs. # 28, 29.) Mr.
Russaw has responded in opposition to summary judgment (Doc. # 30), and BCBOE
has replied (Doc. # 31). The motion is ready for resolution. Based upon careful
consideration of the arguments of counsel, the relevant law, and the record as a
whole, BCBOE’s motion for summary judgment is due to be denied.
I. JURISDICTION AND VENUE
Subject matter jurisdiction is exercised pursuant to 28 U.S.C. § 1331, 28 U.S.C.
§ 1343(a)(3), and 42 U.S.C. § 2000e-5(f)(3). The parties do not contest personal
jurisdiction or venue, and the court finds that there are allegations sufficient to
II. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Russaw brings this action against BCBOE for retaliation in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et. seq. (“Title VII”).
Mr. Russaw alleges that his employment as a transportation technician was nonrenewed in retaliation for opposing what he perceived as his supervisor’s unlawful
employment practices against a bus driver, Ms. Lisa Rodgers. That supervisor was
Lee Roy Straw. BCBOE contends, on the other hand, that Mr. Russaw’s employment
was non-renewed because he failed to perform his duties in a satisfactory manner, that
Mr. Russaw did not engage in any conduct protected by Title VII, and that Mr.
Russaw’s non-renewal did not relate to his alleged protected activity.
Mr. Russaw’s employment with BCBOE began when he was hired as a
transportation technician for the 2008–09 school year. As one of two transportation
technicians in the maintenance department, Mr. Russaw performed manual labor on
the school system’s buses. He was supervised by a tenured transportation technician
and Mr. Straw. Mr. Straw wore two hats, serving not only as a supervisor of the
transportation technicians, but also as the director of transportation. (Quick’s Dep.
65–66; Straw’s Dep. 8–9.)
Ms. Rodgers worked as a bus driver for BCBOE the same three years as Mr.
Russaw. Mr. Straw was in her supervisory chain of command. In the fall of 2009,
Ms. Rodgers started giving her paperwork (including requests for bus repairs) to Mr.
Russaw and making requests through him instead of directly to Mr. Straw. Mr. Straw
asked Mr. Russaw to inquire of Ms. Rodgers as to why she was not bringing her
paperwork to him. Ms. Rodgers told Mr. Russaw that Mr. Straw had been sexually
harassing her, calling her at home, and trying to persuade her to have sex with him,
but that “she didn’t want to have anything to do with him.” (Pl.’s Dep. 29–30; Pl.’s
Aff. ¶ 5.).
Mr. Russaw told Mr. Straw about Ms. Rodgers’s accusations of sexual
harassment. Mr. Straw responded by laughing and said that he would never do
anything like that. That ended the conversation, and the topic never came up again.
In this lawsuit, Mr. Russaw does not contend that he engaged in protected activity
during this conversation. (Pl.’s Summ. J. Resp. 7 n.6 (Doc. # 30).)
The alleged protected activity occurred in March 2010. As a preface, in early
March 2010, Ms. Rodgers came through the gas line and told Mr. Russaw that she
was having a problem with the front end of her bus. Mr. Russaw allegedly told Ms.
Rodgers that she needed to report the matter to Mr. Straw at which time she claimed
to have done so several times. Mr. Russaw then observed Ms. Rodgers putting a
request for repairs in Mr. Straw’s drop box. Not long after, on March 19, 2010, with
her request for repairs having gone unanswered, Ms. Rodgers was transporting school
children and had an accident after the bus’s steering wheel locked up.
Mr. Russaw alleges that a day or so after Ms. Rodgers’s accident, Mr. Straw
asked Mr. Russaw if he saw Ms. Rodgers put a note for a bus repair in his drop box.
Mr. Russaw said, “Yes, I [did] exactly [what] you told me to; have them to come up
there and see you or either put a note in that drop box.” (Pl.’s Dep. 60.) Mr. Straw
instructed Mr. Russaw to deny, if ever asked, that he saw Ms. Rodgers put a note in
the drop box “or else.” (Pl.’s Dep. 60.) Mr. Russaw said that he would not lie. Mr.
Russaw believed that when Mr. Straw asked him to deny that he had seen Ms.
Rodgers place a repair request in her drop box, Mr. Straw “wanted [him] to lie so that
he could either use the bus wreck as an excuse to fire Lisa Rodgers for not having had
sex with him, or . . . use it against her to force her to have sex with him.”1 (Russaw’s
Aff. ¶ 5.)
Mr. Russaw’s belief that Mr. Straw had sexually harassed Ms. Rodgers was
based upon what Ms. Rodgers had told him in the fall of 2009 and an additional
incident he witnessed when he was fueling Ms. Rodgers’s bus at the maintenance
shop. As to this additional incident, Mr. Russaw saw Mr. Straw enter the parked bus
where Ms. Rodgers was seated during the fueling process. He then saw Mr. Straw
put his hand on Ms. Rodgers’s inner, upper thigh, and heard Ms. Rodgers rebuke him
with strong language. Later that same day, Mr. Russaw observed Mr. Straw removing
the videotape from the bus, destroying it, and throwing it in a trash can. (Pl.’s Dep.
32–38.) Mr. Russaw cannot remember precisely when this incident occurred, other
than it occurred a “while after” Ms. Rodgers told him about Mr. Straw’s sexually
harassing behavior.2 (Pl.’s Dep. 57–58.) On another occasion prior to Ms. Rodgers’s
bus accident, Mr. Russaw saw Mr. Straw place “what appeared to be a greeting card”
in Ms. Rodgers’s bus, but he admits that he does not know any other details, and he
never asked Ms. Rodgers about it. (Pl.’s Dep. 39; Pl.’s Aff. ¶ 5.)
This incident will be referred to occasionally in this opinion as the “drop box incident.”
Ms. Rodgers narrows the time frame to the second semester, or at the earliest, late
December 2009. (Rodgers’s Dep. 91.)
Mr. Russaw’s belief that Mr. Straw desired to retaliate against Ms. Rodgers for
refusing his sexual advances is based upon the following. The first was Mr. Russaw’s
impression, based upon what Ms. Rodgers reported to him and what he witnessed,
that Mr. Straw had sexually harassed Ms. Rodgers. The second was Mr. Straw’s
ranting, occurring “within a couple of months” of Ms. Rodgers’s bus accident, that
Ms. Rodgers was a “‘bitch’ and a ‘slut,’ and that he had ‘a way to deal with her.’”
(Pl.’s Aff. ¶ 2.) The third was Ms. Rodgers’s reports to Mr. Russaw that she had
submitted several requests to Mr. Straw for repair work to her bus, but that those
requests had been ignored. (Russaw’s Aff. ¶ 3.)
Less than two months after the drop box incident, Mr. Russaw’s employment
contract was non-renewed based upon Mr. Straw’s recommendation to the
superintendent who, in turn, passed along the recommendation to BCBOE. During
all times relevant to this lawsuit, Gary Quick was the superintendent of Barbour
County Schools. During Mr. Quick’s tenure as superintendent, under the protocol in
place, the employee’s supervisor was required to make a recommendation of nonrenewal to Mr. Quick within specified time frames. (Quick’s Dep. 12–13.) Mr.
Quick then was responsible for making recommendations for all employment actions,
including employment renewals, to BCBOE, and BCBOE would vote on the
The transportation department in which Mr. Russaw worked received a
negative report after an annual state safety inspection in the spring of 2010. After this
inspection and in accordance with the established protocol, Mr. Straw recommended
to Mr. Quick that Mr. Russaw’s employment not be renewed at the end of the
2009–10 school year.3 There is some inconsistency as to what information Mr. Straw
conveyed to Mr. Quick at the time he made the recommendation. Mr. Straw contends
that he cited job performance issues related to Mr. Russaw’s safety inspections of the
bus fleet. (Straw’s Dep. 23.) Mr. Quick says that Mr. Straw gave no reason at that
time for his recommendation and that he did not ask Mr. Straw any questions as to his
reason for the recommendation. Mr. Quick asserts, however, that he had personal
“knowledge of why,” namely, the maintenance department’s substandard “safety
records and the [state inspection] reports of [the] safety readiness of [bus] fleet.”
(Quick’s Dep. 35.) Additionally, according to Mr. Quick, he frequently visited the
bus maintenance shop, knew the employees, conversed regularly with Mr. Straw
about bus maintenance problems, and often “talked collectively” with Mr. Straw and
the mechanics on a variety of topics, including the results of the annual inspections
and ways to improve efficiency. (Quick’s Dep. 22–27, 31.) Additionally, at some
Mr. Straw also recommended nonrenewal of Ms. Rodgers’s employment. (Straw’s Dep.
27; Quick’s Dep. 13.) She, like Mr. Russaw, was a probationary employee. (Def.’s Resp. to
Pl.’s Interrog. No. 6.)
point prior to Mr. Straw’s recommendation to non-renew Mr. Russaw’s employment,
Mr. Straw had reported to Mr. Quick “some problems with Mr. Russaw,” including
a timecard issue and job shortcomings, although those shortcomings were not
discussed in any detail. (Quick’s Dep. 26.)
Based upon Mr. Straw’s recommendation, Mr. Quick recommended to BCBOE
that Mr. Russaw’s employment as a transportation technician not be renewed, and on
May 10, 2010, BCBOE voted in accordance with that recommendation. There are no
details in the record as to what information Mr. Quick relayed to BCBOE or what
transpired during the BCBOE meeting when the vote for non-renewal occurred.
There is evidence, however, that neither Mr. Quick nor any member of BCBOE knew
about the drop box incident.
In a letter dated May 11, 2010, Mr. Quick informed Mr. Russaw of BCBOE’s
vote to non-renew his contract for the 2010-11 school year. BCBOE says that it is
not required to provide any reason for termination to a non-tenured employee,4 and,
thus, the letter to Mr. Russaw contained none. However, BCBOE contends that the
BCBOE submits that because Mr. Russaw was a probationary employee, BCBOE was
not required to give Mr. Russaw any reason for non-renewing his employment and that his nonrenewal was governed by Alabama Code § 36-26-101, which although now repealed, was in
effect at the time Mr. Russaw’s employment was non-renewed. That statute provided that during
an employee’s probationary period, the employing authority could remove the employee simply
“by furnishing said employee written notification at least 15 days prior to the effective day of
termination.” § 36-26-101.
reason was based upon Mr. Russaw’s failure to perform his duties in a satisfactory
manner, in particular, his failure to properly inspect the buses. Moreover, because of
these alleged work performance issues, there was apparently a belief, shared between
Mr. Straw and Mr. Quick, that Mr. Russaw should be terminated before he gained
tenure. (See Def.’s Summ. J. Br. 14; Straw Aff. ¶ 6.) Mr. Russaw claims that this
reason is false in part because he was not yet certified to inspect buses and, thus, was
permitted only to perform inspection tasks at the direction and alongside the certified
senior transportation technician. (Pl.’s Dep. 83–84.)
In May 2010, after he received the letter from BCBOE that his employment
contract had been non-renewed, Mr. Russaw approached Mr. Quick and intended to
tell Mr. Quick about Mr. Straw’s treatment of Ms. Rodgers and about how he had
tried to make him lie about the repair request. However, Mr. Russaw was unable to
convey any of this information to Mr. Quick because Mr. Quick cut him off and said,
in essence, that he supported any decision made by Mr. Straw. (Pl.’s Dep. 63–65,
74–80.) The conversation ended without Mr. Russaw conveying any information
about Mr. Straw’s alleged sexual harassment of Ms. Rodgers or the drop box incident.
In this lawsuit, Mr. Russaw contends that this “attempt to report” Mr. Straw’s alleged
unlawful employment practice to Mr. Quick also is protected conduct for which he
suffered retaliation. (Pl.’s Summ. J. Resp. at 11–13.)
III. STANDARD OF REVIEW
Summary judgment should be granted only “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). Under Rule 56, the moving party “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden by
presenting evidence showing there is no genuine issue of material fact, or by showing
that the non-moving party has failed to present evidence in support of some element
of its case on which it bears the ultimate burden of proof. Id. at 322-24. “[T]he court
must view all evidence and make all reasonable inferences in favor of the party
opposing summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.
Once the moving party has met its burden, “an opposing party may not rely
merely on allegations or denials in its own pleading; rather, its response must – by
affidavits or as otherwise provided in this rule – set out specific facts showing a
genuine issue for trial.” Rule 56(e)(2). To avoid summary judgment, the non-moving
party “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). A genuine factual dispute exists if “a reasonable jury could return a verdict
for the non-moving party.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d
1354, 1358 (11th Cir. 1999) (internal quotation marks and citation omitted).
When a Title VII retaliation claim is based upon circumstantial evidence, as in
this case, the court applies the burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), to resolve a summary judgment motion. See
Wright v. Southland Corp., 187 F.3d 1287, 1305 (11th Cir. 1999). To establish a
prima facie case of retaliation, which is the first step under that framework, the
plaintiff must show (1) that “he engaged in statutorily protected activity,” (2) that “he
suffered an adverse employment action,” and (3) that “there was some causal relation
between the two events.” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277
(11th Cir. 2008). After the plaintiff has established the elements of the prima facie
case, the employer must articulate a legitimate, non-retaliatory reason for the
challenged employment action. Id. Ultimately, to avoid summary judgment, the
plaintiff must raise a genuine issue of material fact that the employer’s articulated
reason was pretextual. See Chapman, 229 F.3d at 1024–25. The plaintiff may
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could find them unworthy
of credence.” Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir.
Prima Facie Case
There is no dispute that Mr. Russaw was subjected to an adverse employment
action when his employment with BCBOE was non-renewed. Elements one and two
of the prima facie case are in dispute, however.
Statutorily Protected Expression
Title VII provides that it is an “unlawful employment practice” for an employer
to discriminate against an employee who (1) “has opposed any practice made an
unlawful employment practice by this subchapter” (the “opposition clause”), or
(2) “has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter” (the “participation
clause”). 42 U.S.C. § 2000e-3(a). Mr. Russaw’s retaliation claim is based upon the
To show statutorily protected expression under the opposition clause, the
employee must demonstrate (1) that “‘he had a good faith, reasonable belief that the
employer was engaged in unlawful employment practices [under Title VII]’” and
(2) that he opposed the unlawful employment practices. Howard v. Walgreen Co.,
605 F.3d 1239, 1244 (11th Cir. 2010) (quoting Little v. United Tech., Carrier
Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997)); see also 42 U.S.C. § 2000e-3(a)
(defining an “unlawful employment practice” in the context of retaliation claims).
The employee’s belief that the employer engaged in an unlawful employment practice
must be “‘objectively reasonable in light of the facts and record present.’” Howard,
605 F.3d at 1244 (quoting Little, 103 F.3d at 960). The conduct the employee
opposed need not have been “actually unlawful”; however, the reasonableness of the
employee’s belief “must be measured against existing substantive law.” Id. (quoting
Clover v. Total Sys. Serv., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999)).
Moreover, in Crawford v. Metropolitan Government of Nashville and Davidson
County, the Supreme Court considered what may constitute opposition in the context
of a Title VII retaliation claim. 555 U.S. 271 (2009). In that case, the Supreme Court
held than an employee’s speech about sexually harassing behavior in response to an
employer’s internal investigation constituted opposition under the Title VII retaliation
framework. The Court explained that “[t]he term ‘oppose,’ being left undefined by
the statute, carries its ordinary meaning, to resist or antagonize . . . ; to contend
against; to confront; to resist; withstand.” Id. at 276 (internal citation and quotation
marks omitted). The Court found that the plaintiff’s account of a fellow employee’s
sexually harassing behavior was “an ostensibly disapproving account of sexually
obnoxious behavior toward her by a fellow employee” and therefore “covered by the
opposition clause.” Id. The Court further held that even though the plaintiff’s speech
came as a response to an employer’s question, it still constituted opposition just as
“standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker
for discriminatory reasons” constitutes opposition. Id. at 277.
BCBOE argues that Mr. Russaw has not shown that he engaged in protected
activity in the form of opposing a perceived unlawful employment practice. It
contends that Mr. Russaw merely relayed to Mr. Straw that Ms. Rodgers had said that
Mr. Straw had sexually harassed her and did not voice any opposition to that alleged
sexual harassment. Mr. Russaw concedes that the discussion between him and Mr.
Straw about Ms. Rodgers’s accusations of sexual harassment against Mr. Straw did
not rise to the level of protected conduct or, in other words, was not opposition to
perceived sexual harassment. (Pl.’s Summ. J. Resp. 7 n.6.) Mr. Russaw argues,
however, that by refusing to deny, if ever asked, that he saw Ms. Rodgers place a
repair request in Mr. Straw’s drop box, his behavior constituted opposition. He
contends that his pronouncement to Mr. Straw that he would not lie for Mr. Straw fits
within the realm of opposing sexual harassment because he was opposing what he
perceived to be a retaliatory act by a supervisor against a subordinate who had
rejected his sexual advances. (Pl.’s Summ. J. Resp. 8; Pl.’s Aff. ¶ 4 (“I believed at
that time that [Mr.] Straw wanted me to lie so that he could either use the bus wreck
as an excuse to fire Lisa Rodgers for not having had sex with him, or to use it against
her to force her to have sex with him.”).)
Not surprisingly, BCBOE disagrees. It contends that an employee’s statement
that he “will not lie” when asked to cover up an employee’s request to a supervisor
for an equipment repair is not “protected conduct” for purposes of a Title VII
retaliation claim. BCBOE argues that, at best, Mr. Russaw is claiming that he was
lie for [Mr. Straw],
discrimination/harassment” and that, therefore, “one never reaches the determination
of whether [Mr.] Russaw had a ‘good faith belief’ he was opposing discrimination.”
(Def.’s Summ. J. Br. 11.)
Viewed in the light most favorable to Mr. Russaw, Mr. Russaw’s refusal to lie
about Ms. Rodgers’s request seeking bus repairs (a request that, had it not been
ignored, arguably would have prevented the accident) cannot be viewed in isolation,
but must be viewed in light of the totality of the circumstances. There is some
support in the case law for Mr. Russaw’s theory. Namely, the Eleventh Circuit has
noted that when “a supervisor retaliates against a worker for failing to give in to
sexual advances, those advances will rise to the level of ‘severe or pervasive’”
sufficient to support an actionable sexual harassment claim.5 Johnson v. Booker T.
Wash. Broad. Serv., 234 F.3d 501, 508 (11th Cir. 2000). In this case, the analysis of
whether Mr. Russaw’s refusal to lie amounts to opposition of the type noted in
Johnson is akin to peeling the layers off an onion to see if protected conduct is at its
The layers begin with the allegations of sexual harassment. Mr. Russaw was
privy to Ms. Rodgers’s accusations that during the school year, Mr. Straw had
sexually propositioned Ms. Rodgers more than once and that Ms. Rodgers had
rejected those propositions. Later in the school year but prior to Mr. Straw’s demand
that Mr. Russaw lie about Ms. Rodgers’s repair request, Mr. Russaw witnessed an
incident of intentional, inappropriate touching by Mr. Straw against Ms. Rodgers,
which Mr. Russaw knew to be unwelcomed by Ms. Rodgers. Around the same time,
Mr. Russaw also was in earshot of Mr. Straw’s use of sexually degrading epithets to
describe Ms. Rodgers and Mr. Straw’s statement that he had “‘a way to deal with [Ms.
Rodgers].’” (Pl.’s Aff. ¶ 2.) The culmination of that harassment, in Mr. Russaw’s
mind, was Mr. Straw’s request that he lie about the repair request so as to create the
Based upon Mr. Russaw’s argument and affidavit, it need not be decided whether a
perception that Mr. Straw was subjecting Ms. Rodgers to a retaliatory hostile work environment
would have been reasonable. The reasonableness of that perception would have required close
scrutiny. See Ekokotu v. Fed. Exp. Corp., 408 Fed. App’x 331, 339 (11th Cir. 2011) (noting that
“the cognizability of a retaliatory hostile work environment claim under Title VII” has not been
decided in this circuit).
impression that Ms. Rodgers committed a serious infraction by not requesting repairs
to her bus. The court is hesitant to find as a matter of law at this stage that Mr.
Russaw did not hold an objectively reasonable belief that Ms. Rodgers had been
sexually harassed by her supervisor and that Mr. Straw intended to strike back at her
for rejecting his advances. See Clover, 176 F.3d at 1351 (The perceived sexual
harassment need not “actually be sexual harassment, but it must be close enough to
support an objectively reasonable belief that it is.”).
BCBOE nonetheless suggests that there is no link between the alleged sexual
harassment and Mr. Straw’s purported request to Mr. Russaw to coverup the fact that
Ms. Rodgers had made a repair request. This leads to the layer of temporal nexus.
There is some evidence suggesting a sufficiently close temporal connection. Mr.
Russaw initially learned from Ms. Rodgers that Mr. Straw had sexually propositioned
her in the fall of 2009, at the earliest “about six months” prior to Mr. Straw’s asking
him to lie about Ms. Rodgers’s repair request. (Pl.’s Dep. 29.) If that was all, the
temporal proximity might be too attenuated, but Ms. Rodgers has pinpointed the date
that Mr. Straw touched her inner thigh as occurring in the second semester of the
2009–10 school year, or, at the earliest, at the end of December 2009. It arguably
would be reasonable for Mr. Russaw to have believed that the conduct he witnessed
was a continuation of sexually harassing conduct. The continuation of the conduct
occurred sufficiently close in time to Mr. Straw’s request to Mr. Russaw to lie, made
less than three months later, to support an inference that Mr. Russaw reasonably
believed that the request to lie was connected to Ms. Rodgers’s refusal to accede to
Mr. Straw’s sexual advances. See infra Part IV.C (discussing the requirement of
temporal proximity in retaliation cases).
Given what Mr. Russaw knew, there is a genuine issue of material fact with
respect to whether it was objectively unreasonable for him to have believed that
retaliation was the motive, even if it could be argued that non-retaliatory, nondiscriminatory motives were at play (e.g., a motive by Mr. Straw simply to cover up
the fact that he had abdicated his supervisory responsibilities by ignoring a
subordinate’s bus repair request). The lack of clarity in the record as to Mr. Straw’s
motives is another layer that demonstrates why a genuine issue of material fact exists
as to whether Mr. Russaw can establish that he engaged in protected conduct. See
Bennington, 261 F.3d at 1268 (observing that the absence of clear facts as to the
decisionmaker’s retaliatory bias created a material issue of fact with respect to the
plaintiff’s Title VII retaliation prima facie case).
Having exposed the layers – the multiple instances of Mr. Straw’s alleged
sexual harassment against Ms. Rodgers (including an inappropriate touching), Mr.
Straw’s gender-derogatory name calling of Ms. Rodgers, Mr. Straw’s arguably
retaliatory-infused statements, and the temporal nexus between the alleged sexual
harassment and the drop box incident – the court finds that the facts are sufficient to
support the inference that, in refusing to lie for Mr. Straw about Ms. Rodgers’s
request for a bus repair, Mr. Russaw resisted or withstood Mr. Straw’s efforts to
retaliate against Ms. Rodgers for her refusal to accede to his sexual advances. Mr.
Russaw’s act of refusing to acquiesce in his supervisor’s request, therefore, is
sufficient to create a genuine issue of material fact as to whether Mr. Russaw opposed
sexual harassment in refusing to coverup Ms. Rodgers’s repair request. It may be that
this argument is not a strong one, but it is a plausible one argued by Mr. Russaw, and
it finds support in Johnson. Significantly, these finer points have not been addressed
by BCBOE, which takes the position that “one never reaches the determination of
whether [Mr.] Russaw had a ‘good faith belief’ he was opposing discrimination.”
(Def.’s Summ. J. Br. 11.)
For these reasons, the court finds Mr. Russaw has
demonstrated protected conduct sufficient to survive summary judgment as to this
element of his prima facie case.
Mr. Russaw’s alleged attempt to report Mr. Straw’s unlawful employment
practices against him to Mr. Quick requires a different conclusion. First, the
conversation occurred after BCBOE’s decision to non-renew. It could not have been
a motivating factor. Second, it is undisputed that during his conversation with Mr.
Quick, Mr. Russaw did not express opposition to any unlawful unemployment
practice by Mr. Straw. Generally, to engage in protected activity, an employee must
“‘at the very least, communicate [his or] her belief that discrimination [or retaliation]
is occurring to the employer,’ and cannot rely on the employer to ‘infer that
discrimination has occurred.’” Demers v. Adams Homes of NW. Fla., Inc., 321 F.
App’x 847, 852 (11th Cir. 2009) (quoting Webb v. R & B Holding Co., 992 F. Supp.
1382, 1390 (S.D. Fla. 1998)). Mr. Russaw argues, however, that he is excused from
that failure because Mr. Quick knew that he was “attempt[ing] to report something
to him about [Mr.] Straw,” but prevented Mr. Russaw from doing so. (Pl.’s Resp. to
Summ. J. 13.) In support of his argument, Mr. Russaw cites two pages from Mr.
Quick’s deposition transcript, in which Mr. Quick testified that Mr. Russaw
mentioned that Mr. Straw “was hard to work for” and “hard to talk to,” but that he did
not mention any specific incidents or individuals. (Quick’s Dep. 36–37.)
It cannot reasonably be inferred from Mr. Quick’s deposition testimony that he
had any knowledge that the purpose of Mr. Russaw’s confrontation with him was to
report an unlawful employment practice. There is no suggestion in this testimony
that, prior to being interrupted and cut off by Mr. Quick, Mr. Russaw gave any
indication that the “something” he wanted to report was an unlawful employment
practice and not just a general protest that Mr. Straw was a difficult supervisor. No
reasonable person could find that Mr. Russaw’s complaint to Mr. Quick about his
supervisor suggested anything more than a workplace civility complaint, and as the
Supreme Court has said more than once, Title VII is not a “‘general civility code for
the American workplace.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
68 (2006) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80
(1998)). Accordingly, Mr. Russaw has failed to create a genuine issue of material
fact that he engaged in protected conduct during his discussion with Mr. Quick.
Mr. Russaw also must demonstrate a causal connection between the protected
conduct and the non-renewal of his employment. Goldsmith, 513 F.3d at 1277. The
Eleventh Circuit has explained that the causal element for a claim of retaliation can
be proved by circumstantial evidence:
We do not construe the “causal link” . . . to be the sort of logical
connection that would justify a prescription that the protected
participation in fact prompted the adverse action . . . . Rather, we
construe the “causal link” element to require merely that the plaintiff
establish that the protected activity and the adverse action were not
Id. (quoting Simmons v. Camden Cnty. Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.
1985)). This causal link requirement is less stringent than “but for” causation:
“[E]stablishing a causal link does not require showing the protected activity was the
sole motivating factor for the adverse employment action.” Gee v. Principi, 289 F.3d
342, 345 (5th Cir. 2002).
“[T]o show the two things were not entirely unrelated, the plaintiff must
generally show that the decision maker was aware of the protected conduct at the time
of the adverse employment action,” Brungart v. BellSouth Telecomms., Inc., 231 F.3d
791, 799 (11th Cir. 2008), and that there is a “‘close temporal proximity’ between the
protected expression and [the] adverse . . . action.’” Higdon v. Jackson, 393 F.3d
1211, 1220 (11th Cir. 2004) (quoting Shotz v. City of Plantation, Fla., 344 F.3d 1161,
1180 n.30 (11th Cir. 2003)). The knowledge “requirement rests upon common sense.
A decision maker cannot have been motivated to retaliate by something unknown to
him.” Brungart, 231 F.3d at 799. “[U]nrebutted evidence that the decision maker did
not have knowledge that the employee engaged in protected conduct” generally
extinguishes any causal connection between the protected activity and the adverse
employment action. Id.
Mr. Russaw’s protected conduct occurred on March 21, 2010, and his
employment was non-renewed on May 10, 2010. There was, therefore, a seven-week
time period between the protected conduct and the adverse employment action. There
is Eleventh Circuit authority that a two-month gap between the adverse employment
action and the protected conduct is sufficient to support a prima facie case of
causation based on close temporal proximity. See Robinson v. LaFarge N. Am., Inc.,
240 Fed. App’x 824, 829 (11th Cir. 2007) (citing Stanley v. City of Dalton, Ga., 219
F.3d 1280, 1291 (11th Cir. 2000)). BCBOE has not argued otherwise. (Def.’s Summ.
J. Br. 13–14.) Temporal proximity is, therefore, satisfied; however, temporal
proximity must be accompanied by the employer’s knowledge of the protected
activity in order for the prima facie case to be complete.
BCBOE argues that neither its members nor Mr. Quick knew about Mr.
Russaw’s protected activity. With this much, the court agrees. First, there is
evidence that when Mr. Quick recommended Mr. Russaw’s non-renewal to the
members of BCBOE, he was unaware of Mr. Russaw’s protected activity, i.e., that
Mr. Russaw had refused Mr. Straw’s demand to disavow any knowledge that Ms.
Rodgers had put a repair request in the drop box. (Quick’s Dep. 36–39.) Mr. Russaw
has not submitted any contrary evidence. As discussed in Part IV.A. supra Mr.
Russaw concedes that when he spoke to Mr. Quick in May 2010, he did not divulge
any information factually relevant to his retaliation claim. Even if had, a review of
Mr. Russaw’s deposition testimony reveals that the conversation he had with Mr.
Quick occurred after Mr. Russaw had received his letter of non-renewal and, thus,
after the decision had been made to non-renew his employment. Hence, this
conversation is not pertinent for discerning what knowledge, if any, Mr. Quick or the
Board had about Mr. Russaw’s protected activity at the time the decision was made
to non-renew his employment. See Griffin v. GTE Fla., Inc., 182 F.3d 1279, 1284
(11th Cir. 1999) (“At a minimum, [an employee] must show that the adverse act
followed the protected conduct; this minimum proof stems from the important
requirement that ‘the employer was actually aware of the protected expression at the
time it took adverse employment action.’” (quoting Goldsmith v. City of Atmore, 996
F.2d 1155, 1163 (11th Cir. 1993))). Additionally, Mr. Russaw has offered no
evidence from which it can be inferred that Mr. Straw notified Mr. Quick of any facts
pertinent to Mr. Russaw’s allegations that form the basis of his retaliation claim.
Likewise, there is no evidence from which it can be inferred that Mr. Quick had
independent knowledge of the drop box incident upon which Mr. Russaw relies to
argue that Mr. Straw’s recommendation was steeped in retaliatory animus.
Second, there is evidence that at the time BCBOE made its decision, none of
its members knew that Mr. Russaw had engaged in conduct that could be
characterized as Title VII opposition. (See, e.g., Def.’s Resp. to Pl.’s Interrog. No.
8 (Doc. # 30-11).) Mr. Russaw has not argued to the contrary, and he also has
admitted that he did not have any discussions with any BCBOE member concerning
Mr. Straw, the drop box incident, or any other topic surrounding his employment.
(Pl.’s Dep. 81.) In sum, Mr. Russaw has not presented any evidence that raises a
genuine issue of material fact on the issue of Mr. Quick’s or BCBOE’s knowledge of
his protected activity.
Cat’s Paw Causation Theory
This does not end the analysis, however. Mr. Russaw implicitly relies on a
“cat’s paw” theory of causation by arguing, in essence, that Mr. Straw infected the
decision making process with retaliatory bias. Mr. Russaw contends that Mr. Straw
harbored retaliatory intent against Mr. Straw for Mr. Russaw’s having opposed Mr.
Straw’s alleged sexual harassment of Ms. Rodgers, that Mr. Straw’s recommendation
to non-renew Mr. Russaw’s contract was motivated by that retaliatory intent, that Mr.
Quick accepted that recommendation at face value, and that ultimately the
recommendation was adopted carte blanche by the Board.6
Under the cat’s paw theory of causation, even if neither Mr. Quick nor the
Board was aware of the protected conduct, the causal link requirement can be
satisfied if Mr. Russaw’s retaliatory motive influenced BCBOE’s decision to renew.
See Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999) (describing
the cat’s paw theory of discriminatory motive). In Stimpson, the Eleventh Circuit
explained that under the “cat’s paw” theory of causation, the decisionmaker takes an
adverse employment action against an employee based upon the biased
recommendation of a non-decision maker without conducting an independent
Mr. Russaw describes Mr. Straw as the “ultimate decisionmaker.” While BCBOE, not
Mr. Straw, technically held that role, the court understands Mr. Russaw to argue that Mr. Straw
was the true decision maker in that the Board was the “mere conduit” of Mr. Straw’s
investigation and, thus, the recommender uses the “decisionmaker as a mere conduit,
or ‘cat’s paw’ to give effect to the recommender’s discriminatory animus.” Id.
Last year, the Supreme Court declined to adopt a “hard-and-fast” cat’s paw rule
that automatically insulates decisionmakers who make independent investigations.
It recognized nonetheless that “[i]f the employer’s investigation results in an adverse
action for reasons unrelated to the supervisor’s original biased action,” the employer
is not liable. Staub v. Proctor Hosp., 131 S. Ct. 1186, 1193 (2011). However, “the
supervisor’s biased report may remain a causal factor if the independent investigation
takes it into account without determining that the adverse action was, apart from the
supervisor’s recommendation, entirely justified.”7 Id.
Here, Mr. Russaw has demonstrated a genuine issue of material fact with
respect to whether Mr. Straw’s actions were a causal factor in the non-renewal of his
Staub involved a claim of employment discrimination under the Uniformed Services
Employment and Reemployment Rights Act (“USERRA”). Although this court uncovered no
post-Staub published opinion from the Eleventh Circuit addressing the cat’s paw theory in the
context of a Title VII retaliation claim, the court finds that it is appropriate to analyze the “cat’s
paw” theory under Staub’s precepts. The Staub Court itself recognized similarities between
USERRA and Title VII. Staub, 131 S. Ct. at 1191. Moreover, in an unpublished opinion, on an
appeal from summary judgment in favor of an employer in a Title VII/§ 1981 discrimination
case, the Eleventh Circuit discussed Staub’s holding with respect to the cat’s paw theory, but
found it unnecessary to “explore the precise meaning or reach of Staub” because it was clear that
the firing decision “did not rely at all on anything” the biased recommender said. Brooks v.
Hyundai Motor Mfg. Ala., LLC, 444 Fed. App’x 385, 387 (11th Cir. 2011). Moreover, Staub’s
cat’s paw theory has been applied in Title VII cases by other circuit courts of appeal. See Davis
v. Omni-Care, Inc., No. 10-3806, 2012 WL 1959367, at *7 & n.8 (6th Cir. 2012); Bissett v. Beau
Rivage Resorts, Inc., No. 11-60239, 2011 WL 4398135, at *1 (5th Cir. Sept. 22, 2011);
McKenna v. City of Philadelphia, 649 F.3d 171, 177–78 (3d Cir. 2011); Crowe v. ADT Sec.
Servs., Inc., 649 F.3d 1189 (10th Cir. 2011).
employment. During Mr. Quick’s tenure as superintendent, it is undisputed that
supervisors, such as Mr. Straw, were given a substantial measure of authority over
their subordinates’ continued employment. Specifically, Mr. Quick testified that Mr.
Straw’s responsibilities included recommending the “renewal or nonrenewal” of the
employment of his subordinates, which included Mr. Russaw, and Mr. Quick
expected Mr. Straw to make appropriate personnel recommendations to him within
set time frames. (Quick’s Dep. 12–13.) Pursuant to that authority vested in him, Mr.
Straw recommended that Mr. Russaw’s employment be non-renewed, and Mr. Quick
accepted that recommendation with no questions asked at that time. (Mr. Quick’s
On one hand, it is clear that Mr. Quick was keenly aware that the transportation
department had received a failing report from a state inspection on safety issues with
respect to the school system’s buses and that this evaluation factored into Mr. Quick’s
decision to affirm and pass along to BCBOE Mr. Straw’s recommendation to nonrenew Mr. Russaw’s employment. On the other hand, on this record, Mr. Quick’s
reliance on the state inspection results is insufficient under Staub to amount to an
intervening superseding cause. That is so because there also is evidence that Mr.
Quick factored into his decision Mr. Russaw’s alleged job deficiencies that were
reported to him solely by Mr. Straw (the biased supervisor). (See, e.g., Def.’s Resp.
to Pl.’s Interrog. No. 11 (“From discussions with [Mr.] Straw . . . [Mr.] Quick was
generally aware of concerns Mr. Straw had with the job performance of [Mr. Russaw]
with regard to safety of the buses.”).) Mr. Quick admits that Mr. Straw periodically
discussed with him in generalities Mr. Russaw’s alleged job deficiencies, deficiencies
which Mr. Russaw disputes, and there is no evidence that Mr. Quick made any kind
of independent assessment of Mr. Russaw’s work quality. (See Quick’s Dep. 35
(admitting that he had no knowledge of any “particular instances” of when Mr.
Russaw had not performed his job properly).) Rather, from aught that appears, Mr.
Quick took those reports from Mr. Straw at face value. Based upon this evidence and
under Staub, Mr. Straw’s recommendation set in motion the events that resulted in
Mr. Russaw’s employment being non-renewed. As discussed above, there is a
genuine issue of material fact with respect to whether Mr. Straw harbored retaliatory
intent, and there is insufficient evidence of independent action by Mr. Quick to
eliminate Mr. Straw’s retaliatory animus as a causal factor of the non-renewal of Mr.
Russaw’s employment. The evidence is not overwhelming in Mr. Russaw’s favor and
admittedly it is somewhat murky, but it nonetheless is sufficient to create a genuine
issue of material fact as to whether Mr. Quick’s independent investigation and
knowledge resulted in a recommendation from him that was wholly unrelated to Mr.
Straw’s alleged biased recommendation. See Staub, 131 S. Ct. at 1193.
Moreover, the record is sufficiently unclear as what independent investigations
BCBOE undertook, if any, before voting in favor of the recommendation to non28
renew Mr. Russaw’s employment. It contends that Mr. Russaw’s deficient job
performance is the reason for his non-renewal, but it provides no explanation as to
how it reached that conclusion. Because it is not clear from the summary judgment
evidence whether the Board made an independent decision sufficient to break the
causal link, a genuine issue of material facts exists as to whether Mr. Russaw has
established causation based upon cat’s paw liability.
In sum, there is a triable issue with respect to whether Mr. Straw’s retaliatory
animus may be imputed to Mr. Quick, who recommended Mr. Russaw’s termination,
and BCBOE, which actually non-renewed Mr. Russaw. Accordingly, there is a
genuine issue of material fact of a causal connection based on the inference created
by the temporal proximity between the protected conduct and the adverse
employment action and the causal inference created by the cat’s paw theory. It
admittedly is a close call, but on summary judgment, close calls go to the non-moving
The inquiry turns to whether BCBOE can produce a legitimate, non-retaliatory
reason for its decision to non-renew Mr. Hicks’s employment and whether Mr. Hicks
can demonstrate that BCBOE’s proffered reason was pretext for retaliation.
BCBOE’s articulated reasons for non-renewing Mr. Russaw’s employment are
that “without non-renewal, [Mr.] Russaw would have gained tenure” and that based
upon Mr. Russaw’s “continuing work performance issues, he could not be allowed
to gain tenure.” (Straw’s Aff. ¶ 4; Quick’s Dep. 34.) On these bases, BCBOE’s
position is that Mr. Straw recommended the non-renewal of Mr. Russaw’s
employment and that Mr. Quick “had personal knowledge of the truth of those
reasons.” (Quick’s Dep. 34.)
Here, the court assumes, without deciding, that BCBOE meets its burden of
“clearly set[ting] forth, through the introduction of admissible evidence, the reasons
for [Mr. Russaw’s] [termination].” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 255 (1981). An employee’s unsatisfactory work performance can constitute a
legitimate, non-retaliatory reason for terminating an employee. See Damon v.
Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir. 1999).
Moreover, there is nothing, in and of itself, retaliatory with respect to an employer’s
desire to terminate an employee with an unsatisfactory work record during his or her
probationary period. However, with that said, it has not gone unnoticed that Mr.
Quick was unable to identify any particular shortcomings in Mr. Russaw’s work and
admitted that Mr. Straw did not provide him with specific examples of Mr. Russaw’s
alleged poor work quality. This lack of specificity has factored into the decision on
Here, Mr. Russaw argues that there is sufficient evidence of pretext to permit
his claims to proceed to trial. Mr. Russaw relies on Mr. Straw’s “or else” statement
as forecasting retaliation (i.e., deny that you saw Ms. Rodgers put a note in the drop
box “or else”), the fact that Mr. Straw recommended only the non-renewal of Mr.
Russaw’s and Ms. Rodgers’s employment contract, the absence of written reprimands
“regarding poor bus inspections” by Mr. Russaw, evidence that a state inspector had
warned Mr. Straw that Mr. Russaw was not qualified to conduct school bus
inspections because of his lack of certification, the fact that a certified senior
transportation technician was not disciplined for his role in the bus inspections, and
what Mr. Russaw contends are conflicting reasons for his termination. (Doc. # 30,
Having considered the totality of the circumstances, construed all reasonable
evidentiary inferences in Mr. Russaw’s favor, and studied Mr. Russaw’s arguments,
the court concludes that there is a genuine issue of material fact on the issue of
pretext. It may be that there are a number of permissible and non-retaliatory
inferences to be derived from the evidence, but there are a sufficient number of
impermissible inferences, when considered collectively, to raise a genuine issue of
material fact for trial. There was a supervisor with presumed retaliatory intent who
recommended the termination of his subordinate based upon arguably vague grounds
that have been adequately refuted, but that were passed along and adopted without
reasoned explanation or independent probing. The evidence distinguishes this case
from those where the employer is absolved from liability based upon its “mistaken
but honest impression that the employee violated a work rule.” Damon, 196 F.3d
at 1363. At the very least, on this record, the court is persuaded that “the better
course would be to proceed to a full trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). Summary judgment will be denied.
Because Mr. Russaw has raised a genuine issue of material fact with respect
to his prima facie case and pretext on his Title VII retaliation claim, it is ORDERED
that BCBOE’s motion for summary judgment (Doc. # 28) is DENIED.
An order setting this case for trial will be entered separately.
DONE this 28th day of August, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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