Lewis v. Eufaula City Board of Education et al

Filing 46

OPINION AND ORDER that defendants Eufaula City Board of Education, Allen N. White, Jim S. Calton, Jr., Louise Conner, Otis Hill, James A. Lockwood, and Barry R. Sadler's motion for summary judgment 20 is granted in part and denied in part as further set out in order. Signed by Honorable Judge Myron H. Thompson on 12/4/2012. (Attachments: # 1 Civil Appeals Checklist)(jg, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

CRYSTAL C. LEWIS,
Plaintiff,
v.
EUFAULA CITY BOARD OF,
EDUCATION, et al.,
Defendants.

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)
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)
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CIVIL ACTION NO.
2:11cv1093-MHT
(WO)

OPINION AND ORDER
Plaintiff Crystal C. Lewis, an American of African
descent, brings this case charging the defendants with
discrimination (based on her race) and retaliation (based
on her and her father’s protected conduct) with respect
to her employment.

She names as defendants the Eufaula

City Board of Education, its five board members, and its
superintendent of education.
defendants’

actions

violated

Lewis charges that the
Title

VII

of

the

Civil

Rights Act of 1964, as amended and codified at 42 U.S.C.
§§ 1981a, 2000e to 2000e–17; the Civil Rights Act of
1866, as amended and codified at 42 U.S.C. § 1981; and

the First and Fourteenth Amendments to the Constitution
as enforced through 42 U.S.C. § 1983.
proper

under

28

U.S.C.

§§

1331

Jurisdiction is

(federal

question)

and 1343 (civil rights) and 42 U.S.C. § 2000e–5(f)(3)
(Title VII).
This

case

is

currently

before

the

defendants’ motion for summary judgment.

court

on

the

For the reasons

that follow, the motion will be granted in part and
denied in part.

I. SUMMARY-JUDGMENT STANDARD
Summary judgment is appropriate “if the movant[s]
show[]

that

material

there

fact

and

is
the

no

genuine

movant[s]

judgment as a matter of law.”

dispute
[are]

as

to

entitled

any
to

Fed. R. Civ. P. 56(a).

The court must view the evidence in the light most
favorable to the non-moving party and draw all reasonable
inferences in favor of that party.

2

Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).

Here, the defendants are the movants.

II. BACKGROUND
A.
Eufaula is a small city in eastern Alabama with a
history of racial unrest relating to its public education
system.

For some time, the public schools operated under

federal court monitoring due to the city schools’ history
of racial segregation.
monitoring,

many

Despite the ending of court

Eufaula

residents

continue

to

have

grievances with the school system’s treatment of the
black community.

A particular point of contention has

been the numbers of black teachers and administrators
employed by the board.

While over half of the students

in the school system are black, the portion of black
teachers is roughly 15 %, which some city residents
contend is far too low.

Although members of the city

school board profess that they have been making efforts

3

at

increasing

the

ranks

of

black

teachers

administrators, these residents are skeptical.

and
They

point to a neighboring school system, where teachers are
almost evenly divided between black and white, and they
contend that discriminatory employment practices in the
Eufaula City Schools must account for the difference in
comparative racial percentages.

B.
Lewis

grew

up

in

Eufaula

and

worked

as

a

physical-education teacher at Eufaula Primary School for
about three years.
served

under

During her first two years, she

Principal

Jessie

Warren,

who

is

black.

Lewis received, generally, good performance evaluations.
Her career, however, took a turn for the worse in the
third year when Suzann Tibbs, who is white, replaced
Warren as principal.
Because Lewis could obtain tenure only if she were
rehired for a fourth year, the Eufaula City Board of

4

Education had to decide at the end of each of these three
academic years whether to renew her contract for the
following

year.

As

a

general

practice,

a

school

principal would forward an initial renewal recommendation
to Eufaula City Superintendent Barry R. Sadler; unless he
had particular cause for concern, Sadler would, without
making inquiry, forward the recommendation to the full
board;

likewise,

unless

the

board

had

cause

to

do

otherwise, it would adopt the principal’s recommendation.
In

effect

principals.

then,
Once

renewal
Tibbs

decisions

became

were

principal

made
of

by

Eufaula

Primary School, she recommended that Lewis’s contract not
be renewed and, thus, in effect, that her employment be
terminated.

The recommendation was adopted by the board,

and Lewis’s employment contract was not renewed.
Lewis immediately suspected that something was afoul.
Although Principal Tibbs purported to have recommended
non-renewal on the basis of Lewis’s poor performance
(arguing that Lewis was too passive to be an effective

5

physical education teacher and too hesitant to engage in
outdoors activities), Lewis believed that Tibbs was not
evaluating

her

performance

in

good

faith.

Lewis

hypothesized that Tibbs wanted her position to open up so
that a personal friend of Tibbs’s, who is white, could be
hired.

Lewis felt that her theory was bolstered because

Tibbs had attempted to act on Lewis’s employment at least
once before she became principal; on one occasion, Tibbs
approached then-Principal Warren to discuss the possible
non-renewal of Lewis’s contract, but Warren rebuffed her,
stating

that,

performance,
renewal.

based
he

was

on

his

“not

observations

comfortable”

of

Lewis’s

with

denying

Regardless of Lewis’s suspicion of Tibbs’s

intent, Tibbs’s friend, ultimately, did not receive the
position; instead, Lewis’s replacement was, like Lewis,
an African-American.

Lewis filed a charge with the U.S.

Equal Employment Opportunity Commission (“EEOC”), arguing
that

the

decision

to

end

her

employment

discriminatorily made on account of her race.

6

was

Lewis began applying for other positions with the
school system, but she had no success.

One such position

for which she applied was at her previous school, Eufaula
Primary School, but she was not selected.

Instead, Ciara

Culverhouse, who is white, was chosen based on Tibbs’s
recommendation.

Although

Culverhouse

had

not

yet

obtained the licensing required for the job, she was
hired with the understanding that it would be obtained
sometime soon.

Some members of the black community were

outraged that allegedly more qualified black applicants
were passed over in favor of a white applicant who was
without

the

necessary

licensing.

A

crowd

of

approximately 100 people attended a school-board meeting
to protest the decision.

Among them was a woman who

vigorously protested that her daughter Andrea Guilford,
who is black and was purportedly highly qualified, was
passed over.

Upon this public outpouring of discontent,

the board reversed itself and chose to hire Guilford
instead of Culverhouse.

7

Shortly after that public reversal, Lewis’s father
Ronnie Crews attended public meetings of the school board
to

express

his

displeasure

with

the

school

system’s

treatment of the black community in general and his
daughter Lewis in particular.

He made such appearances

on

According

two

member,

separate

occasions.

Crews’s

presentations

were

of

to
a

one

board

substantial

length; he was “quite aggressive”; and he “was acting
like

a

courtroom

lawyer

cross-examining

a

witness.”

Allen N. White Dep. (Doc. No. 29), Exh. K, 27:11-15.

In

the opinion of that board member, the presentations were
inappropriate and left a lasting impression with him.
Crew’s presentations to the board were also in line with
those of his wife Earnestine Crews.

The Crewses were

well known in the community for their outspoken views and
involvement in issues having to do with race relations;
they

regularly

criticized

the

treatment

African-Americans by the local government.

8

afforded

to

Although

Lewis

was

having

no

luck

with

her

applications to Eufaula City Schools, a county school
expressed interest in her.

But, before it could formally

consider her, it needed a form signed by Lewis’s prior
employer,

the

Superintendent

Eufaula
Sadler

City

Board

of

assured

Lewis

that

Education.
he

expeditiously file the form, but he did not.

would
As he

understood the form, he was required to attest that
Lewis’s work had been performed “satisfactorily.”

Given

that her contract was not renewed, he was unsure whether
he could make that attestation.

His submission of the

form was delayed while he sought permission to state on
the form that he confirms her employment but does not
confirm that her work was satisfactory.

By the time he

obtained this permission and submitted the form, the
county school had already denied Lewis’s application and
hired another applicant.
Because Lewis was continuing to have no success with
her job applications with Eufaula schools (and she had

9

applied for over 25 different jobs there) and schools
within a reasonable distance, her husband Michael Lewis
approached Superintendent Sadler to ask whether anything
could be done.

Sadler responded that he would “never say

never,” but, for the time being, “nobody is going to hire
[Lewis] in Eufaula.”

Michael Lewis Aff. (Doc. No. 29),

Exh. G, ¶ 7.

C.
Lewis

filed

this

lawsuit

claiming

that

she

was

discriminated against because of her race and retaliated
against because she had filed an EEOC charge and because
of her father’s speeches to the board.

She names as

defendants the Eufaula City Board of Education, its five
board members (Allen N. White, Jim S. Calton, Jr., Louise
Conner, Otis Hill, and James A. Lockwood), and Board
Superintendent Sadler.

10

III. DISCUSSION
A.
Lewis’s first claim is that the defendants did not
renew her physical-education teaching contract at Eufaula
Primary School because she is African-American.

Lewis’s

complaint, which is not a model of clarity, does not
specify the source of law for this claim--whether Title
VII,

§

1981,

the

Equal

Protection

Clause

Fourteenth Amendment, or all of these.

of

the

The defendants

assert defenses that apply to some, but not all, of those
three legal sources.

Nevertheless, it is unnecessary to

know which basis Lewis is relying on, for, whatever the
basis, her claim will be subject to the same standards of
proof

and

will

require

analytical framework.

the

employment

of

the

same

Bryant v. Jones, 575 F.3d 1281,

1296 n.20 (11th Cir. 2009).
Lewis’s

discrimination-in-employment

claim,

regardless of legal basis, is analyzed under the burdenshifting analysis set forth in McDonnell Douglas Corp. v.

11

Green,

411

U.S.

792

(1973).

See,

e.g.,

Smith

v.

Lockheed-Martin Corp., 644 F.3d 1321, 1325 (11th Cir.
2011).

Under

demonstrate
“evidence

a

McDonnell
prima-facie

adequate

employment

decision

to

she

Douglas,
case,

create

was

an

based

discriminatory criterion.”

which

must

consists

inference
on

first

a[n]

of

that

an

[illegal]

Int'l Bhd. of Teamsters v.

United States, 431 U.S. 324, 358 (1977).

“The methods of

presenting a prima facie case are flexible and depend on
the

particular

situation.”

Alvarez

v.

Royal

Atl.

Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010).
Once established, a prima-facie case raises a presumption
of illegal discrimination, Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 254 (1981), and a burden of
production is then put on the employer to rebut the
presumption

by

articulating

a

legitimate,

non-

discriminatory reason for its challenged action. Chapman
v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000).

12

If this burden of production is met, the burden is
then on the employee to satisfy her ultimate burden of
establishing that the employer’s proffered reason for the
employment

decision

was

a

pretext

for

racial

discrimination, a burden which she may satisfy “either
directly, by persuading the court that a discriminatory
reason

more

than

likely

motivated

the

employer,

or

indirectly, by persuading the court that the proffered
reason for the employment decision is not worthy of
belief.”

Hall v. Alabama Ass'n of Sch. Bds., 326 F.3d

1157, 1166 (11th Cir. 2003).

“By so persuading the

court, the employee satisfies [her] ultimate burden of
demonstrating by a preponderance of the evidence that
[she] has been a victim of unlawful discrimination.”

Id.

Often, the question whether the plaintiff has made
out a prima-facie case is irrelevant when the district
court

considers

judgment.
2012

WL

an

employer's

motion

for

summary

Bailey-Potts v. Ala. Dep’t of Pub. Safety,
566820,

at

*3

(M.D.

13

Ala.

Feb.

21,

2012)

(Thompson, J.).

That is because, “[u]nder the McDonnell

Douglas framework, the burden at the first two steps is
light for both the plaintiff and the defendant-employer.”
Id.

Thus, “the real question [often] lies in whether the

employer's

legitimate

non-discriminatory

reason

is

pretextual,” id. at *4, which, as stated, is the final
inquiry in the McDonnell Douglas analysis.

See Hall, 326

F.3d at 1166 (“‘If ... the defendant has succeeded in
carrying its burden of production, the McDonnell Douglas
framework--with

its

longer relevant. ...

presumptions

and

burdens--is

no

The presumption, having fulfilled

its role of forcing the defendant to come forward with
some

response,

simply

drops

out

of

the

picture.’”)

(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
510 (1993)).
In this case, the defendants have come forward with
evidence that Lewis’s employment was not renewed because
of dissatisfaction with her performance.
defendants

state,

too

passive

14

to

be

She was, the
an

effective

physical-education teacher and too hesitant to bring the
students outdoors for activities.

Lewis has not come

forward with sufficient evidence for a reasonable factfinder to conclude that this justification is pretextual
for racial discrimination.

Viewed in the light most

favorable to Lewis, her evidence shows that the Eufaula
School System’s governance has a past history of racial
discrimination; when Lewis reported to a black principal,
he found her work satisfactory; when she later reported
to a white principal, that principal unfairly ended her
employment as part of a scheme to provide a job to a
personal friend; and, after that plan went awry, the
white principal hired an African-American to replace
Lewis.

Under that scenario, although Lewis’s employer

may have acted unfairly in making the initial employment
decision, that unfairness was based on nepotism and not
race.
stand.

Lewis’s

claim

of

racial

discrimination

cannot

See Alexander v. Fulton Cnty., 207 F.3d 1303,

1341 (11th Cir. 2000) (“[I]t is not the court's role to

15

second-guess the wisdom of an employer's decisions as
long as the decisions are not racially motivated.”),
overruled on other grounds, Manders v. Lee, 338 F.3d 1304
(11th Cir. 2003).
If Lewis’s claim rests on a theory of mixed motives,
that is, that Principal Tibbs’s decision to end Lewis’s
employment was driven both by both nepotistic and racist
purposes, Lewis must still show that her race was a
“motivating factor for [her non-renewal], even though
other factors also motivated the [decision].”

42 U.S.C.

§ 2000e–2(m); see also Desert Palace, Inc. v. Costa, 539
U.S. 90, 94 (2003).

Lewis has not presented sufficient

evidence to create a logical inference that her race was
even a motivating factor.

Her evidence that the Eufaula

City Schools have a history of racial segregation (which
is undisputed) indicates little about her individual
circumstances: the termination of her employment.

While

historical discrimination is often meaningful, see, e.g.,
Harris v. Birmingham Bd. of Educ., 712 F.2d 1377, 1383

16

(11th Cir. 1983), that history must be linked to the
individual
example,

circumstances
that

one

or

presented,
more

of

the

by

showing,

for

decision-makers

responsible for the past discriminatory practices were
one or more of the decision-makers who engaged in the
challenged conduct.

As the defendants point out, the

members of the board today are not the same members who
enforced

segregation

in

the

past.

As

for

evidence

specific to Lewis’s individual circumstances, she has put
forth nothing that would be sufficient to show that the
defendants’ proffered explanation (dissatisfaction with
her

performance)

discrimination.

was

mere

pretext

for

racial

Indeed, after her employment ended, she

was in fact replaced with another African-American.

See

Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1150 (D.C.
Cir. 2004) (“The employer's hiring of a person of the
same race ... as the plaintiff might be relevant in
assessing the merits of a plaintiff's claim.”).

17

To be sure, replacement of an African-American with
another African-American will not, conclusively, defeat
an African-American’s claim of racially discriminatory
firing or failure to renew employment contract.

Cf.

Howard v. Roadway Exp., Inc., 726 F.2d 1529, 1534–35
(11th

Cir.

established

1984)
a

(holding

that

prima-facie

a

plaintiff

failure-to-hire

had
case

notwithstanding evidence that the position sought by the
plaintiff was ultimately filled with a person of the same
race as the plaintiff).

But, as stated, such evidence is

relevant, and here, in the absence of other evidence to
support

a

discrimination

claim,

the

evidence

is

particularly condemning of the asserted discrimination
claim.
To the extent that the defendants’ motion for summary
judgment goes to Lewis’s claim of racially discriminatory
non-renewal of her employment contract, the motion will
be granted.

18

B.
Lewis’s second claim is that the defendants refused
to rehire her for a new position because of her race.
This claim is also governed by the McDonnell Douglas
burden-shifting

framework.

See,

e.g.,

Walker

v.

Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1274
(11th Cir. 2002).

The defendants have asserted that

Lewis’s work was unsatisfactory, and Lewis has not come
forward

with

explanation

sufficient
is

a

evidence

pretext

for

to
race

show

that

that

discrimination.

Indeed, as for the opening that Lewis applied for and
that was initially given to Culverhouse (thus causing
outrage in the community), it ultimately went to a black
applicant.

While there are certainly circumstances in

which a failure-to-hire claim may be supported despite
the position going to a person of the same race as the
plaintiff,

see,

e.g.,

Howard,

726

F.2d

at

1534–35

(holding that a plaintiff had established a prima-facie
failure-to-hire case notwithstanding evidence that the

19

position sought by the plaintiff was ultimately filled
with a person of the same race as the plaintiff), Lewis
has not provided any evidence indicating that this is
such a case.

As for the numerous other positions that

Lewis applied for, she offers no evidence that would
support an inference of race discrimination; for example,
there is no indication as to who ultimately filled the
openings for which Lewis was turned down.

For those

positions, Lewis has not met her burden of establishing
a

prima-facie

case,

let

alone

presenting

sufficient

evidence to rebut the defendants’ legitimate explanation.
To the extent that the defendants’ motion for summary
judgment goes to Lewis’s claim of racially discriminatory
refusal to rehire her, the motion will be granted.

C.
Lewis’s final claims are for retaliation.

She first

claims that, in violation of Title VII, the defendants
refused to rehire her for a new position because she had

20

filed an EEOC charge.

Second, she claims that the

defendants’ conduct was also motivated by her father’s
speech and, as such, violated the First Amendment.

The

court addresses both retaliation claims in turn.

i.
Under Title VII, employers are prohibited from
“discriminat[ing]

against

...

[an]

applicant[]

for

employment ... because [she] has ... made a charge” with
the EEOC.

42 U.S.C. § 2000e-3(a).

retaliation
governed

in

by

framework.

violation

the

of

McDonnell

See, e.g.,

that

A claim asserting
provision

Douglas

is

also

burden-shifting

Lipphardt v. Durango Steakhouse

of Brandon, Inc., 267 F.3d 1183, 1186-87 (11th Cir.
2001).

For Lewis to establish a prima-facie case of

retaliation, she must show “(1) statutorily protected
expression” (here, that would include that she filed a
charge with the EEOC), “(2) adverse employment action”
(here, that would include the refusal to consider her for

21

rehiring), “and (3) a causal link between the protected
expression and the adverse action” (that is, any evidence
suggesting

that,

in

refusing

to

rehire

her,

the

defendants were actually motivated by the EEOC charge).
Id. at 1186 (quotation marks and citation omitted).

Once

Lewis establishes a prima-facie case, the defendants must
articulate a legitimate, non-discriminatory reason for
not rehiring her, which, if articulated, would put the
burden on Lewis to prove by a preponderance of the
evidence that the reason offered by the defendants is a
pretext for retaliation.

Id.

Here, Lewis has established not only a prima-facie
case of retaliation in violation of Title VII, she has
also presented sufficient evidence to raise a factual
question of whether the defendants refused to rehire her
because she had filed an EEOC charge. First, there is the
obvious: At the time the defendants refused to rehire her,
she had filed an EEOC charge.

Second, the defendants’

actions must be placed against a backdrop in which Lewis’s

22

father had complained to board members about the board’s
treatment

of

Lewis,

charging

them

with

racial

discrimination, and at least one board member had found
his remarks inappropriate and offensive.1

Finally, in

responding to an inquiry into whether anything could be
done for Lewis to be rehired, Superintendent Sadler stated
to Lewis’s husband that “nobody is going to hire [Lewis]
in Eufaula.”

Michael Lewis Aff. (Doc. No. 29), Exh. G, ¶

7.2 Depending on the superintendent’s tone and expression

Lewis does not claim that the defendants’ alleged
retaliation against her for her father’s speech violated
Title VII. Rather she claims that, to the extent that
the defendants’ retaliation was motivated by such speech,
the defendants violated the First Amendment, not Title
VII. The Title VII claim addresses only the filing of
the EEOC charge. However, given the intertwined nature
of the EEOC charge and Lewis’s father’s speech (both of
which accused the defendants of racially discriminating
against Lewis), the evidence that, at least, one board
member professed displeasure with her father’s speech is
background supporting an inference that the board had a
retaliatory motive with respect to Lewis’s charge of
discrimination.
1.

2. The defendants argue that the statement is
inadmissible
hearsay
and
cannot
be
considered.
Superintendent Sadler, however, is one of the defendants
(continued...)

23

and

the

surrounding

circumstances

when

made,

this

statement could be viewed as a cryptic comment about
Lewis’s perceived persona non grata status in the school
community due to complaints, including her own, about the
school board’s treatment of black employees. Put together,
and drawing all reasonable inferences in favor of Lewis,
these allegations are enough to raise a question of fact
as to whether the defendants, in retaliation for being
charged with discrimination, refused to consider Lewis for
possible rehiring.3

(...continued)

in this lawsuit and his prior statement was offered into
evidence by Lewis, his opponent in this litigation. A
statement is “not hearsay” if it is “offered against an
opposing party and ... was made by the party.” Fed. R.
Evid. 801(d)(2)(A).
Therefore, the statement is not
hearsay.
3. Causation may also be established by temporal
proximity between the protected conduct and the adverseemployment action, though,
"without more, [the period
between the charge and the adverse action] must be 'very
close.'" Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,
1363 (11th Cir. 2007) (citation omitted). "Three to four
month[s]" is too much time to suffice. Id. A one-month
period is sufficient to show causation.
Donnellon v.
(continued...)

24

Although the court has held that the evidence is
insufficient to find that Lewis’s race was a factor in the
board’s refusal to rehire her, the court cannot say the
same about her EEOC charge.

In other words, the evidence

is sufficient to create a “genuine dispute [of] material
fact,” Fed. R. Civ. P. 56(a), as to whether Lewis’s EEOC
charge was a substantial factor in the board’s refusal to
rehire her.

For that reason, to the extent that the

defendants’ motion for summary judgment goes to Lewis’s
Title VII claim of retaliation, the motion will be denied.

ii.
Lewis

claims

that

defendants’

retaliation

was

motivated not only by her EEOC charge, but also, violation

(...continued)

Fruehauf Corp., 794 F.2d 598, 601 (11th Cir. 1986). Here,
the times between Lewis’s EEOC charge and the refusals to
rehire her are too unclear and confusing from the record,
developed so far by the parties, to draw any inferences
one way or the other.

25

of the First Amendment, by her father’s speech.4 Under the
First Amendment, governmental actors are prohibited from
“abridging the freedom of speech ... or the right of the
people

peaceably

to

assemble,

and

to

Government for a redress of grievances.”
amend. I.

petition

the

U.S. Const.

Under 42 U.S.C. § 1983, Lewis is afforded a

statutory right of action to recover monetary damages for
the deprivation of her First Amendment rights. See, e.g.,
Akins v. Fulton Cnty., 420 F.3d 1293, 1299 (11th Cir.
2005).
The First Amendment prohibits the government from
retaliating against persons for their protected speech.
See, e.g., Bryson v. City of Waycross, 888 F.2d 1562, 1565

4. Lewis does not argue that the defendants violated
the First Amendment (rather than Title VII) by
retaliating against her for her filing of the EEOC
charge. As such, the court does not address whether she
would have such a claim under the First Amendment. See
Merriweather v. Alabama Dept. of Pub. Safety, 17 F. Supp.
2d 1260, 1278 (M.D. Ala. 1998) (Albritton, J.)
(discussing whether First Amendment claims may be made
out for retaliation for filing of an EEOC charge), aff'd,
199 F.3d 443 (11th Cir. 1999); see also Badia v. City of
Miami, 133 F.3d 1443, 1446 (11th Cir. 1998) (same).
26

(11th Cir. 1989).

The same general principle applies

where the protected speech was made by an employee of the
government, and the government’s retaliation for that
speech took the form of an adverse-employment action, such
as termination of employment, decreased compensation, or
refusal to consider for hiring or re-hiring.

Id.

Often in First Amendment retaliation cases, the
government is claimed to have retaliated against the
plaintiff for her own speech; but the First Amendment may
also

be

violated

where

the

speech

that

invoked

the

government’s retaliatory response was not made by the
plaintiff herself, but rather by a person in a close
relationship
retaliated
association
speech.

with

the

against
with

plaintiff,

the

the

plaintiff

other

person

and

the

government

for

her

and

that

perceived
person’s

See, e.g., Adler v. Pataki, 185 F.3d 35, 45 (2d

Cir. 1999) (holding that "retaliatory discharge based
solely on [protected speech] by one's spouse is actionable
under the First Amendment"); Talley v. Brentwood Union

27

Free Sch. Dist., 2009 WL 1797627, at *6 (E.D.N.Y. June 24,
2009) (Hurley, J.) (citing Adler to uphold claim of
retaliation against a daughter for her father’s speech);
Cain v. Tigard-Tualatin Sch. Dist. 23J, 262 F. Supp. 2d
1120, 1127 (D. Or. 2003) (Haggerty, C.J.) (upholding claim
that defendant’s retaliatory “conduct was motivated by
[plaintiff’s] association with his parents’ speech”);
Agostino v. Simpson, 2008 WL 4906140, at *5 (S.D.N.Y. Nov.
17, 2008) (Seibel, J.) (claim “alleging that Defendants
took adverse action against Plaintiff in retaliation for
[his father’s] First Amendment activities”); Serena H. v.
Kovarie, 209 F. Supp. 2d 453, 458 (E.D. Pa. 2002) (Brody,
J.)

(upholding

"First

Amendment

claim

[that]

[the

plaintiff] was retaliated against based upon her mother's
exercise

of

free

speech");

cf.

Thompson

v.

N.

Am.

Stainless, LP, 131 S. Ct. 863, 867 (2011) (“We have little
difficulty concluding that if [plaintiff’s allegations
that

the

defendant

terminated

his

employment

in

retaliation for his fiancée’s filing of a charge with the

28

EEOC]

are

true,

then

[the

defendant’s]

firing

of

[plaintiff] violated Title VII.”).
That is because, “[t]he First Amendment protects not
only a citizen's right to speak freely but also his or her
right” of association.

Cain, 262 F. Supp. 2d at 1127.

The First Amendment right of association has two distinct
components. Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18
(1984).

First, the right of association encompasses the

right to “enter into and maintain certain intimate human
relationships.”

Id. at 617-18.

“[C]ertain kinds of

personal bonds have played a critical role in the culture
and

traditions

of

the

Nation

by

cultivating

and

transmitting shared ideals and beliefs,” and thus, the
right of intimate association is fundamental. Id. at 61819.

Second, there is the “right to associate for the

purpose of engaging in those activities protected by the
First

Amendment--speech,

assembly,

petition

for

the

redress of grievances, and the exercise of religion.” Id.
at 618.

In cases like this one, where the government is

29

claimed to have retaliated against a daughter for the
speech of her father, and the daughter is allegedly
perceived to share the sentiments expressed by her father,
“freedom
involved.
as

to

of

association

in

both

of

its

forms”

are

Lewis has raised a viable question of fact

Id.

whether

she

was

not

rehired

because

of

her

association with her father and his speech.
Lewis has also asserted a viable claim based solely
on free speech. “The First Amendment reflects ‘a profound
national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open.’”
Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011) (quoting
New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
That principle would be severely frustrated if the First
Amendment did not include within its protective ambit an
employee who bears such a close relationship with a person
who engages in protected speech that there is a legally
recognizable

identity

between

and

the

speaker, such as that of immediate family members.

Id.

30

the

employee

If the government could freely retaliate against such
employees, there would be an “obvious chilling effect on
free speech.” Reno v. American Civil Liberties Union, 521
U.S. 844, 845 (1997).

Persons with a family member

employed by the government would have to fear for their
family member’s well being whenever they “engag[ed] in
those activities protected by the First Amendment--speech,
assembly, petition for the redress of grievances, and the
exercise

of

religion.”

Roberts,

468

U.S.

at

618.

Likewise, a government employee would be placed in the
uncomfortable position of having to police, or attempt to
police, her family’s speech.

For these reasons, it is

clear that the First Amendment, as it necessarily must,
protects government employees against retaliation for the
speech of those with whom the employees share intimate
relationships.
Title VII provides a useful analogy.

In Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006),
the

Supreme

Court

described

31

Title

VII’s

prohibition

against retaliation as “seek[ing] to secure [the] primary
objective” of Title VII, which is a workplace free from
racial, ethnic, religious, and sex discrimination, “by
preventing

an

employer

from

interfering

(through

retaliation) with an employee's efforts to secure or
advance enforcement of the Act's basic guarantees.” Thus,
the Court held, the anti-retaliation provision must be
read broadly.

In Thompson, 131 S. Ct. at 867, citing that

reasoning, the Court “[had] little difficulty concluding
that” an employer’s retaliation against an employee for
that

employee’s

fiancée’s

“violated Title VII.”

filing

of

an

EEOC

charge

Similarly, because the primary

objective of the First Amendment is to ensure that “debate
on public issues [is] uninhibited, robust, and wide-open,”
Snyder, 131 S. Ct. at 1215, the amendment must necessarily
be understood to protect claims like Lewis’s, where the
speech at issue is that of her father’s.

That, however,

does not mean that the reach of the amendment is endless.
For a plaintiff to bring such a claim under § 1983, that

32

statute must provide a cause of action to the particular
plaintiff, meaning that the plaintiff must fall within the
constitutional provision and the enforcing statute’s zone
of interests.

Cf. Thompson, 131 S. Ct. at 868 (stating

that, while “prohibiting reprisals against third parties
will lead to difficult line-drawing problems concerning
the types of relationships entitled to protection,” “We
expect that firing a close family member will almost
always meet the ... standard, and inflicting a milder
reprisal on a mere acquaintance will almost never do so,”
and “the significance of any given act of retaliation will
often

depend

upon

the

particular

circumstances”)

(quotation marks and citation omitted).

Here, Lewis and

her father’s close relationship, both at law and in fact,
fall within that zone of interest, and protection, under
the circumstances presented.
For Lewis to support a First Amendment retaliation
claim, she must show (1) that the speech at issue (in this
case, her father’s presentations to the board) can be

33

fairly characterized as relating to a matter of public
concern, (2) that her interests as a citizen outweigh the
interests of the governmental entity (here, the school
board) as an employer, and (3) that the protected conduct
(her father’s speech or her association with him) played
a substantial or motivating role in the government's
decision to take an adverse-employment action. Akins, 420
F.3d at 1303.

Even if Lewis establishes those elements,

the defendants may escape liability if they prove that,
regardless of Lewis’s father’s protected speech, they
would have refused to hire her even in the absence of the
speech.

Id.

Here, as for the first element, that Lewis’s father’s
speech related to a matter of public concern, the evidence
is sufficient to find that it did.

“For speech to be

protected as speech on a matter of public concern, ‘it
must relate to a matter of political, social, or other
concern to the community.’” Id. at 1303 (quoting Watkins
v. Bowden, 105 F.3d 1344, 1353 (11th Cir. 1997)). Lewis’s

34

father discussed the broad issue of the school board’s
employment of African-Americans, which is a political and
social issue that has been the subject of local newspaper
coverage and has caused at least one sizeable protest.
See, e.g., Love-Lane v. Martin, 355 F.3d 766, 776 (4th
Cir. 2004)

(“We, too, have repeatedly recognized that a

public employee's speech about racially discriminatory
practices, particularly in public schools, involves a
matter of public concern.”).

The defendants contend that

the speech should not be deemed a matter of public concern
because Lewis’s father discussed, among other things, the
board’s treatment of his daughter, which is a mere private
matter.
private

But,

“[e]ven

concerns

if

[Lewis’s

regarding

[his

father]

discussed

daughter’s]

work

environment in the meeting,” which it is clear that he
did, “that does not disqualify [Lewis] from protection.
It is well understood that ‘... speech will rarely be
entirely private or entirely public.’”

Akins, 420 F.3d

at 1303-04 (quoting Morgan v. Ford, 6 F.3d 750, 755 (11th

35

Cir. 1993)).

Viewing the evidence in the light most

favorable to Lewis, as the court must at this stage, it is
apparent

that

her

father’s

speech

involved

not

only

private matters but also matters of public concern.
As to whether Lewis’s interests as a citizen outweigh
the government’s interests as an employer, the evidence
here too favors her. “[T]he state interest ... focuses on
the

effective

functioning

of

the

public

employer's

enterprise.”

Rankin v. McPherson, 483 U.S. 378, 388

(1987).

another

Put

way,

the

school

board,

as

an

employer, has an interest “‘in promoting the efficiency of
the public services it performs through its employees,’”
and it may legitimately refuse to rehire Lewis if its
interests outweigh her father’s interests, as a citizen,
in

expressing

his

views,

and

Lewis’s

associating with her father and his speech.

interests

in

Id. (quoting

Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).

In

this case, there is no reason to find that the board’s
interest in the efficient and effective functioning of its

36

schools

justifies

excluding

Lewis

from

potential

employment. There has been no evidence or allegation that
Lewis herself at any time engaged in disruptive speech
while employed.

There has likewise been no showing that

her father’s speech has disrupted school functions.

Cf.

Rankin, 483 U.S. at 388-89 (“While McPherson's statement
was made at the workplace, there is no evidence that it
interfered

with

the

efficient

functioning

of

the

office.”). The only occasion in which Lewis’s father made
the protected speech at issue was at public meetings of
the board, and, because the very purpose of those meetings
is to allow the public to express its concerns, it cannot
be said that the forum was inappropriate.

Even if the

tone and form of Lewis’s father’s speech was offensive, as
one member of the board took it to be, there is no reason
why that would justify refusing employment to Lewis.

The

balancing test falls in Lewis’s favor.
Third, that Lewis’s father’s speech motivated the
government’s retaliation also presents a disputed issue of

37

fact.

For essentially the same reasons that a reasonable

fact-finder could infer that Lewis was not rehired because
of her filing of an EEOC charge, the fact-finder could
also infer that the defendants were motivated by her
father’s speech.

That is, at the time the defendants

refused to rehire her, Lewis had applied for over 25
openings; her father had made two speeches to the board,
upsetting at least one board member; and, after all of
that, Superintendent Sadler, in a cryptic comment, told
Lewis’s husband that not one of the school system’s
principals would hire Lewis.5

This factual showing is

enough to survive summary judgment.
Moreover, as stated above, even if the above elements
are proved, the defendants may still escape liability if
they establish that they would have refused to rehire

5. The evidence is somewhat unclear on the precise
time line, and it appears that at least some of Lewis’s
job applications were filed before either of her father’s
speeches to the board.
Nevertheless, it also appears
that many of her applications, if not the majority, were
filed after one or both speeches.
38

Lewis regardless of her father’s speech (for example,
because they were legitimately dissuaded from doing so
because

of

her

demonstrated

poor

job

performance).

Whether that is the case is a factual dispute that must be
resolved at trial and is inappropriate for resolution on
summary judgment.
For that reason, to the extent that the defendants’
motion

for

summary

judgment

goes

to

Lewis’s

First

Amendment claim of retaliation, the motion will be denied.

iii.
The court now turns to the defendants’ four defenses
that, if they had merit, would require the court to grant
summary

judgment

retaliation

claims

in

the

defendants’

regardless

of

the

favor

on

sufficiency

the
of

Lewis’s evidence.
The defendants note that, “in order to obtain judicial
consideration of [a Title VII] claim, a plaintiff must
first

file

an

administrative

39

charge

with

the

EEOC,”

Pijnenburg v. W. Ga. Health Sys., Inc., 255 F.3d 1304,
1305 (11th Cir. 2001); 42 U.S.C. § 2000e-5(e)(1), and
therefore, although Lewis undoubtedly filed an initial
EEOC charge claiming racial discrimination, she never
filed a subsequent EEOC charge claiming retaliation for
the earlier charge, and, as such, she cannot now bring the
retaliation claim this lawsuit.

But, contrary to the

defendants’ contention, it is settled law that “it is
unnecessary for a plaintiff to [file a subsequent EEOC
charge before raising in federal court] a retaliation
claim growing out of an earlier charge.”
Cellulose

Corp.,

856

F.2d

167,

169

Baker v. Buckeye
(11th

Cir.

1988)

(quotation marks and citation omitted); see also Nealon v.
Stone, 958 F.2d 584, 590 (4th Cir. 1992) (holding as such
and noting that “[a]ll other circuits that have considered
the issue have determined that a plaintiff may raise the
retaliation claim for the first time in federal court.”);
Houston v. Army Fleet Services, L.L.C., 509 F. Supp. 2d
1033,

1043

(M.D.

Ala.

2007)

40

(Fuller,

J.)

(“[W]hen

a

retaliation

claim

is

based

on

adverse

actions

taken

against the employee after the initial EEOC charge is
filed, it can be said that the retaliation claim grows out
of a properly filed employment discrimination charge, and
it is not necessary for a plaintiff to file a second
charge specifically alleging retaliation.”) (emphasis in
original).

The defendants’ argument, that Lewis’s Title

VII retaliation claim in this court must fail because she
failed to file a retaliation charge with the EEOC, is
without merit.
The

second

asserted

defense

is

the

doctrine

of

qualified immunity, which “protects government officials
‘from liability for civil damages insofar as their conduct
does

not

violate

clearly

established

statutory

or

constitutional rights of which a reasonable person would
have known.’”

Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Qualified immunity, which was once called “goodfaith immunity,” see, e.g., Gomez v. Toledo, 446 U.S. 635,

41

639-40 (1980) (“[A] public official[‘s] position might
entitle him to immunity if he acted in good faith.”);
Harlow, 457 U.S. at 807 (referring to “qualified or goodfaith immunity”), essentially seeks to protect government
officials from monetary liability for unexpected changes
in the law.
have

As such, if the defendants are alleged to

violated

legal

rights

that

were

not

“clearly

established” in the law at the time of their challenged
conduct, this court will not make them pay for the lack of
foresight.
In

addressing

whether

a

legal

right

was

clearly

established in the law, the question before the court is
whether “the state of the law ... gave [the defendants]
fair

warning

that

their

alleged

plaintiff] was unconstitutional.”
U.S.

730,

740

(2002).

Put

treatment

of

[the

Hope v. Pelzer, 536

another

way,

“‘[c]learly

established’ for purposes of qualified immunity means that
the contours of the right must be sufficiently clear that
a reasonable official would understand that what he is

42

doing violates that right.

This is not to say that an

official action is protected by qualified immunity unless
the very action in question has previously been held
unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.”

Wilson

v. Layne, 526 U.S. 603, 614-15 (1999) (punctuation marks
and citations omitted); see also Hope, 536 U.S. at 741
(“[O]fficials can still be on notice that their conduct
violates

established

law

even

in

novel

factual

circumstances.”).
As an initial matter, the qualified-immunity doctrine
does not apply to Title VII actions against governmental
employers like the Eufaula City Board of Education.

See,

e.g., Busby v. City of Orlando, 931 F.2d 764, 772 (11th
Cir. 1991); Harvey v. Blake, 913 F.2d 226 (5th Cir. 1990).
Therefore, “a qualified immunity analysis is unnecessary
under Title VII,”

Busby, 931 F.2d at 772, and the court

accordingly turns to Lewis’s First Amendment retaliation
claim.

43

The general principle that the government cannot take
adverse-employment action in retaliation for protected
speech has long been a feature of law as declared by the
Supreme Court and the Eleventh Circuit (which includes
Eufaula in its three-state area).

See, e.g., Rankin, 483

U.S. at 383 (“It is clearly established that a State may
not discharge an employee on a basis that infringes that
employee's constitutionally protected interest in freedom
of speech.”); Akins, 420 F.3d at 1303 (the elements of a
First Amendment retaliation claim are “well established in
this circuit”); Bryson, 888 F.2d at 1565 (same). This
principle has long been applied where failure to rehire is
the form of retaliation being challenged.

See, e.g.,

Perry v. Sindermann, 408 U.S. 593, 596 (1972) (“The first
question presented is whether the respondent's lack of a
contractual or tenure right to re-employment, taken alone,
defeats his claim that the nonrenewal of his contract
violated the First and Fourteenth Amendments.

We hold

that it does not.”); Mt. Healthy City Sch. Dist. Bd. of

44

Educ. v. Doyle, 429 U.S. 274, 283-84 (1977) (“[Plaintiff]
may ... establish a claim to reinstatement if the decision
not to rehire him was made by reason of his exercise of
constitutionally protected First Amendment freedoms.”).
Additionally, the First Amendment right of intimate
association
decisions.

has

long

been

recognized

in

numerous

See, e.g., Roberts, 468 U.S. 609, 617-18.

Because the allegations (which the court must take as
true

on

a

motion

for

summary

judgment)

undergirding

Lewis’s retaliation claim for violation of her rights to
association and speech go to the core protections of the
First Amendment, the violations, if true, are obvious.
Cf. Hope, 536 U.S. at 738 (“As the facts are alleged by
Hope,

the

Eighth

Amendment

violation

is

obvious.”).

Indeed, apparently deciding that the issue did not merit
discussion, some courts have upheld First Amendment claims
of

retaliation

for

the

speech

of

family

members

and

entirely passed over that the speech was made by the
plaintiff’s family rather than the plaintiff herself. See

45

Ward v. Athens City Bd. of Educ., 1999 WL 623730 (6th Cir.
1999) (unpublished) (upholding children’s First Amendment
retaliation claim alleging that the children were punished
for

their

mother’s

impermissibility
established
qualified

of

that

the

immunity”;

speech;

retaliation
defendants
and,

not

holding
is

that

sufficiently

are

not

“the
well

entitled

discussing

the

to

legal

implications of the protected speech at issue being made
by the children’s mother rather than the children); Henley
v. Tullahoma City Sch. Sys., 84 F. App'x 534, 539-40 (6th
Cir. 2003) (unpublished).
In sum, government officials reasonably apprised of
the law and acting in good faith would, if acting as Lewis
has alleged, have had more than “fair warning that their
[conduct] was unconstitutional.”

Hope, 536 U.S. at 740.

It cannot be questioned that a reasonable government
official

would

know

that

he

would

violate

the

First

Amendment’s core protections if he retaliated against an
employee for her own free speech.

46

Knowing as much, it is

clear that no reasonable official could think that he
would be free to retaliate against an employee for her
relationship

or

exercise

free

of

reasonable

association

officer

with

her

father

speech.

Cf.

id.

at

could

have

and

742-43

concluded

his
(“No

that

the

constitutional holding of [Gates v. Collier, 501 F.2d 1291
(5th Cir. 1974)] turned on the fact that inmates were
handcuffed to fences or the bars of cells, rather than a
specially designed metal bar designated for shackling.”)
(citation omitted).

For that reason, the defendants can

find no refuge in the doctrine of qualified immunity.
The third asserted defense is the so-called Monell
doctrine.

In Monell v. Dep't of Soc. Serv., 436 U.S. 658,

694 (1978), the Supreme Court held that a municipal agency
(such as the Eufaula City Board of Education) could be
held liable under § 1983 only where the plaintiff’s rights
were violated by a “policy or custom” of the defendant
agency (rather than conduct of an agency employee acting
alone).

A typical case in which the Monell defense

47

applies would be, for example, one in which a city seeks
to avoid being held responsible for an unlawful act of one
of its police officers, arguing that the city itself
committed no wrong and should not be made to pay for the
acts of a rogue officer.

See, e.g., City of Oklahoma City

v. Tuttle, 471 U.S. 808 (1985).

But this is no such case.

Here, Lewis alleges that the board itself, as controlled
through the board member defendants, unlawfully retaliated
against her, and thus, nothing in Monell exempts the board
from liability here.

See Jamieson v. Poughkeepsie City

Sch. Dist., 195 F. Supp. 2d 457, 474 (S.D.N.Y. 2002)
(McMahon, J.) (“Plaintiff need not establish an official
policy or custom of the District if the trier of fact
finds there has been a decision by a municipal policymaker
who

possesses

final

authority

to

establish

municipal

policy with respect to the action ordered.”); Hamilton v.
Montgomery Cnty. Bd. of Educ., 122 F. Supp. 2d 1273, 1289
(M.D. Ala. 2000) (DeMent, J.) (“Plaintiff can demonstrate
an official policy or custom by showing that his adverse

48

employment

decision

resulted

from

...

[a]

decision

officially adopted and promulgated by board members”).
Finally,

the

superintendent

are

school-board

members

and

the

correct

Lewis’s

Title

VII

that

retaliation claim does not lie against them in their
Busby, 931 F.2d at 772 (“The

“individual capacities.”

relief granted under Title VII is against the employer,
not individual employees whose actions would constitute a
violation of the Act.”) (emphasis in original).

They are

also correct that, because Lewis has named the school
board as a defendant on her Title VII retaliation claim,
naming

them

too

as

defendants

capacities” is redundant.

in

their

“official

See Busby, 931 F.2d at 776

(affirming district court's dismissal of § 1983 claims
against official capacity defendants, stating, “To keep
both the City and the officers sued in their official
capacity

as

defendants

in

this

case

would

have

been

redundant and possibly confusing to the jury.”); id. at
772 (“We think the proper method for a plaintiff to

49

recover under Title VII is by suing the employer, either
by naming the supervisory employees as agents of the
employer or by naming the employer directly.”).

Lewis’s

Title VII retaliation claim is viable against only the
school board in this case.
At the end of the day, after having assessed all
asserted defenses, there remains standing in this case
only Lewis’s Title VII retaliation claim against the board
and her First Amendment retaliation claim against all
defendants.
***
Accordingly, it is ORDERED that defendants Eufaula
City Board of Education, Allen N. White, Jim S. Calton,
Jr., Louise Conner, Otis Hill, James A. Lockwood, and
Barry

R.

Sadler’s

motion

for

summary

judgment

(Doc.

No. 20) is granted in part and denied in part as follows:
(1) Summary judgment on plaintiff Crystal C. Lewis’s
First Amendment retaliation claim brought under 42 U.S.C.

50

§ 1983 against all defendants is denied.

This claim will

go trial.
(2) Summary judgment on plaintiff Lewis’s Title VII
retaliation claim against defendant Eufaula City Board of
Education is denied.

This claim will go trial.

(3) Summary judgment on plaintiff Lewis’s Title VII
retaliation
Conner,

claim

Hill,

against

Lockwood,

defendants

and

Sadler

White,

is

Calton,

granted,

with

plaintiff Lewis taking nothing on this claim against these
defendants.
(4) Summary judgment on plaintiff Lewis’s Title VII
discrimination

claims

against

defendants

Eufaula

City

Board of Education, White, Calton, Conner, Hill, Lockwood,
and Sadler is granted, with plaintiff Lewis taking nothing
on these claims against these defendants.
DONE, this the 4th day of December, 2012.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE