Edwards v. Montgomery County Board of Education et al

Filing 86

OPINION. Signed by Honorable Judge Myron H. Thompson on February 23, 2015. (scn, )

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

)
)
Plaintiff,
)
)
v.
)
)
MONTGOMERY COUNTY BOARD OF )
EDUCATION, et al.,
)
)
Defendants.
)

CIVIL ACTION NO.
2:13cv780-MHT
(WO)

OPINION
In

this

case

retaliation

in

charging

sex

employment,

discrimination

plaintiff

and

Cossaundria

Edwards names as defendants the Montgomery County Board
of

Education,

officials.
Civil

its

members,

and

various

school

She rests her claims on Title VII of the

Rights

Act

of

1964,

as

amended

(42

U.S.C.

§§ 1981a & 2000e through 2000e-17), and on § 1 of the
Civil

Rights

§ 1983).
school

Act

of

1871,

as

amended

(42

U.S.C.

She also charges all defendants except the
board

with

Alabama state law.

negligence

and

wantonness

under

The court has original jurisdiction

over

the

(federal

federal

claims

question)

and

under

1343

28

(civil

U.S.C.
rights),

§§

1331

and

42

U.S.C. § 2000e-5(f)(3) (Title VII), and supplemental
jurisdiction over her state-law claims under 28 U.S.C.
§ 1367.
This cause is before the court on the defendants’
motion for summary judgment.

Summary judgment will be

granted in favor of the defendants on Edwards’s federal
claims, and her state claims will be dismissed without
prejudice pursuant to 28 U.S.C. § 1367(c).

I.

SUMMARY-JUDGMENT STANDARD

“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on

which

summary

judgment

is

sought.

The

court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter
of law.”

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

The court must view

the admissible evidence in the light most favorable to
2

the non-moving party and draw all reasonable inferences
in favor of that party.

Matsushita Elec. Indus. Co.

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

II. BACKGROUND
Edwards claims an assistant superintendent, Lewis
Washington, sexually harassed her while she worked for
the

Montgomery

County

Board

assistant superintendent.

of

Education

as

an

She also alleges that she

was retaliated against for reporting the harassment.
The facts that follow are drawn from the evidence taken
in the light most favorable to her.
In May 2011, Washington began to harass Edwards
sexually.

The harassment began with comments on her

appearance, such as, “That skirt sure is fitting, I
wish I was that skirt.”
55-24), at 6.

Edwards Affidavit (doc. no.

She mostly ignored him.

A few months

later, Washington began to send Edwards text messages,
some of which were sexual in nature.

One string of

messages, for example, said, “I love u,” “Want you,”
3

“Home. Wanting,” and “We could and may yet one day be
awesome together.”
at 2.

Board Memorandum (doc. no. 40-6),

In total, Washington texted Edwards messages

that

were

sexual

Some

messages

in

that

nature
Edwards

approximately
considered

20

times.

inappropriate

were also sent by email, though she could not recall
the details of any particular messages.
Throughout

this

period,

Edwards

and

Washington

communicated frequently about professional and personal
matters.

Though she maintained a friendly relationship

with Washington, Edwards did not respond to the more
vulgar or crude messages, and she tried to deflect the
contact

with

responses

like

“You’re

crazy,”

“You’re

just too much,” or “That’s just too much; you need to
stop,” but he would continue.
40-1), at 17.

Edwards Test. (doc. no.

In July 2011, she also refused to attend

an out-of-state conference with Washington, after he
had

expressly

accompany

him.

Professional

requested

to

Edwards

Development

other
told

that
4

she

staff
the
would

that

Director
not

she
of

attend

because

she

was

uncomfortable

with

Washington’s

advances.
In

September

explicit.

2011,

Once,

the

while

harassment

they

were

became

in

her

more

office,

Washington asked Edwards, “When are you going to let me
lick that?”

Edwards Test. (doc. no. 40-1), at 18.

In

the hallway, Washington told Edwards, “Push back from
the

table,

your

hips

are

spreading,”

understood as a comment on her weight.
occasion

that

month,

Washington

which
Id.

Edwards

On another

approached

Edwards

while they were alone in an elevator after a meeting
and

touched

his

stomach

to

her

midsection.

She

immediately told him to get back on his side of the
elevator.

She pushed him off her with her hand, and he

retreated.

This was the only time Washington attempted

physical contact with Edwards.
Later that month, after a meeting, Edwards took the
stairs,

and

before

she

reached

the

stairwell

door,

Washington opened the door and approached her again.
Edwards sternly said to him, “Don’t start that shit or
5

I’m going to scream.”
at 20.
he

Edwards Test. (doc. no. 40-1),

Washington responded, “Girl, please,” and then

left.

Id.

At

the

end

of

the

month,

Edwards

confronted Washington and asked him to stop harassing
her.

She threatened to report Washington to the human

resources department and to tell his wife, if he did
not stop.
probably

Washington responded that his wife “would
tell

you

to

come

and

get

me.”

Edwards

Affidavit (doc. no. 55-24), at 7.
On

October

Superintendent

7,

Barbara

2011,
Thompson

Edwards
after

a

approached
meeting

and

told her that Washington had been sexually harassing
her.
had

Specifically, she told Thompson that Washington
“gotten

into

[her]

personal

space,”

cited

the

elevator and stairwell incidents, and explained that he
had made her feel uncomfortable. Edwards Test. (doc.
no.

40-1),

Assistant

at

22.

Thompson

Superintendent

of

Edwards.

6

sent

Donald

Operations,

to

Dotson,
talk

to

The next day, when Assistant Superintendent Dotson
met with Edwards, she told Dotson about the elevator
and stairwell incidents, as well as the text messages.
She also told him about one or two emails and showed
him what she considered to be an inappropriate email
sent from Washington, though she does not now recall
what that email said.

Dotson told her that he thought

it was “just a relationship gone bad.” Edwards Test.
(doc.

no.

Thompson
there.”

40-1),

that

“he

at

23.

Dotson

thought

there

reported

was

a

back

to

relationship

Thompson Test. (doc. no. 40-2), at 18.

Board policy requires a determination to be made
within five working days as to the validity of any
sexual-harassment complaint, and also requires that a
complainant be notified in writing of the results of
any

investigation

and

of

the

validity of the complaint.
(doc. no. 14-4), at 3.

determination

of

the

Amended Complaint, Exh. D
However, Edwards was never

notified of the status of her internal complaint, and

7

she

took

no

further

action

until

she

reported

the

harassment again in July 2012.
Edwards says that, between September 2011 and June
2012, Washington made about 15 to 20 sexual comments to
her; the harassment stopped on its own by June 2012;
and

Edwards

did

not

have

any

further

contact

with

Washington after July 2012.
Even after her initial internal complaint, Edwards
maintained a close friendship with Washington, and she
does

not

dispute

that

she

maintained

complimentary correspondence with him.

a

personal,

For example, in

December 2011, she emailed to Washington: “I know you
are

truly

KRAZY...

But,

we

work

well

together.

know, where my heart is.. No matter what..”

You

Dec. 4,

2011 emails (doc. no. 40-23), at 2 (punctuation as in
original). In January 2012, she discussed an upcoming
absence in an email with Washington: “I know you will
miss me, but try to contain yourself. ... Thank you so
much for being you. I know I have a set of angel wings
behind me at all times. See you soon buddy .”
8

Jan.

12, 2012 emails (doc. no. 40-24), at 2.
April 2012, she

Similarly, in

emailed Washington: “Thank you. You

have always had my back. I can never repay you Lewis. I
kept you structured. God always knows. Thank you for
always having my back.”

Apr. 18, 2012 emails (doc. no.

40-27), at 2.
However,

Edwards

also

says

that

Washington

and

others in the office formed a “conspiracy” against her
and began to spy on her through her electronic devices.
As an example, she alleges that, in or about March
2012, after she made a comment to Washington about not
getting rest the night before, he responded, “What, did
you tell [your husband] to just go on and get it and be
through with it?”
at 7.

Edwards Affidavit (doc. no. 55-24),

Edwards had, indeed, said the same thing to her

husband the night before, and she understood this as
proof that Washington was spying.
Nine months after her October 2011 meeting with
Assistant Superintendent of Operations Dotson, Edwards
was called to speak with Superintendent Thompson and
9

Assistant

Superintendent

of

Human

Resources

Veverly

Arrington about a recent physical altercation between
Edwards’s

husband

supervision.
reiterated
about

and

to

end

of

Thompson

Washington,

details.

employee

the

At

an

and

though

Edwards

also

the

under

meeting,

Arrington

she

did

explained

Edwards’s

her

not

Edwards
concerns

provide

problems

having with other staff on her floor.

she

any
was

A few days

later, at the request of Thompson, Edwards met with
counsel for the school board.

Edwards recounted the

incidents with Washington, showed the attorneys some of
the text messages, and described problems that she had
been having in the office with other staff, including
her belief that certain co-workers were involved in a
conspiracy against her and spying on her at home.
At a staff breakfast in August 2012, Edwards asked
Dotson what was going to happen to Washington regarding
her internal complaints.
Thompson

and

transferring

Arrington
her

to

a

Soon after this conversation,
met

with

different
10

Edwards
position

to

discuss

with

less

supervisory
different

authority

building.

but

the

Edwards

same

was

pay

told

and

that

in

she

a
was

being transferred to “get [her] away from Washington
and everything that was going on ... [in] the central
office building.”
51.

Edwards Test. (doc. no. 40-1), at

When she asked why Washington could not be moved

instead, Arrington responded, “We can’t just move him
out of his office right now.”
The

defendants

allege

Id. at 48.
that

Edwards

was

to

be

transferred to remove her from three situations: first,
because

of

concern

about

a

romantic

relationship

between Edwards and a supervisee; second, her proximity
to Washington during the course of the investigation;
and, third, her proximity to Washington and the other
staff members whom Edwards believed had been spying on
her.

See Thompson Test. (doc. no. 40-2), at 15.
Because Edwards was tenured, the transfer would be

immediately effective
move.

only if Edwards agreed

to the

Without her agreement, her transfer could not be

approved until she had had an opportunity to present
11

her objections before the school board at a hearing,
pursuant to 1975 Ala. Code § 16-24C-7(c).
The

next

resignation.

day,
She

Edwards
explained

submitted
in

letter

of

later

a

her

email

to

Assistant Superintendent of Human Resources Arrington
that she was “disappointed that the bigger issue of
harassment and retaliation were not paramount” in the
school

board’s

decision

to

accept

her

resignation.

Aug. 15, 2012 email (doc. no. 40-10), at 2.
after

that,

Washington

was

placed

on

Shortly

administrative

leave and, after completing its internal investigation,
the school board voted to terminate him.
Edwards then brought this lawsuit.

III. DISCUSSION
Edwards

asserts

the

following

claims:

Title

VII

claims of sexual harassment, sex discrimination, and
retaliation; a § 1983 claim of deliberate indifference
to discrimination; and state-law claims of negligence,
and wantonness.

She named as defendants the school
12

board

and

its

members,

the

current

and

former

superintendents, and the assistant superintendent for
human resources.

The defendants seek summary judgment

on all claims.

A. Title VII Claims
1. Liability of Individual Defendants
Edwards
against

brings

individual

several

of

defendants

individual capacities.

her
in

Title

their

VII

claims

official

and

Because the school board has

been sued as a defendant, Edwards’s claims against the
individual defendants in their official capacities are
redundant.

See Kentucky v. Graham, 473 U.S. 159, 165

(explaining

that

represent

only

official
another

capacity

way

of

suits

pleading

“generally
an

action

against an entity of which an officer is an agent”).
Furthermore, “[i]ndividual capacity suits under Title
VII are ... inappropriate.
Title

VII

is

against

the

The relief granted under
employer,

not

individual

employees whose actions would constitute a violation of
13

the Act. ... [T]he proper method for a plaintiff to
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.”

Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.
1991) (emphasis in original).
The court accordingly will grant summary judgment
to the individual defendants on all Title VII claims,
leaving only the school board as a defendant on these
claims.

2. Sex Discrimination
Title

VII

bars

an

employer

from

discriminating

against an employee “because of ... sex.” 42 U.S.C.
§ 2000e-2(a)(1).

This provision “prohibits sex-based

discrimination that alters the terms and conditions of
employment.”

Baldwin

v.

Blue

Cross/Blue

Shield

Alabama, 480 F.3d 1287, 1300 (11th Cir. 2007).

of
An

employee can establish a sex-based violation of Title
VII

in

two

ways:

(1)

“through
14

tangible

employment

action”

or

(2)

environment

“through

caused

by

creation
sexual

of

a

hostile

harassment

work

that

is

sufficiently severe or pervasive to alter the terms and
conditions of the work.”

Nurse “BE” v. Columbia Palms

W. Hosp. Ltd. P’ship, 490 F.3d 1302, 1308 (11th Cir.
2007).
Edwards asserts three Title VII sex-discrimination
claims

against

environment,
treatment.

the

school

constructive

board:

discharge,

hostile-work
and

disparate

The court will analyze each claim in turn.

a. Hostile-Work Environment
A plaintiff may establish a prima-facie case of
hostile-work

environment

by

showing

“(1)

that

she

belongs to a protected group; (2) that she has been
subject to unwelcome sexual harassment; (3) that the
harassment

was

harassment

was

based

on

sufficiently

her

sex;

severe

(4)
or

that

pervasive

the
to

alter the terms and conditions of employment and create
a discriminatorily abusive working environment; and (5)
15

that a basis for holding the employer liable exists.”
Hulsey v. Pride Rest., LLC, 367 F.3d 1238, 1244 (11th
Cir. 2004).
In addition to contesting that Edwards has failed
to establish all the necessary elements, the school
board argues that Edwards’s hostile-environment claim
is

time-barred.

The

court

agrees

that

it

is

time-barred.
42

U.S.C.

provision

[a

2000e-5(e)(1)

that

prerequisites
filing

§

specifies

that

Title

a

“is
with

plaintiff

VII]

a

filing

precision

must

suit.”

charge

satisfy

National

the
before

Railroad

Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002)
(internal

citations

omitted).

With

exceptions

not

relevant here, the statute requires a potential Title
VII

plaintiff

Employment

to

file

Opportunity

a

charge

Commission

with
(EEOC)

the

Equal

within

180

days “after the alleged unlawful employment practice
occurred.”

42 U.S.C. § 2000e-5(e)(1).

Plaintiffs may

not sue on discrete acts of discrimination that occur
16

outside this statutory time period.
at

113.

However,

hostile-work

when

a

environment,

Morgan, 536 U.S.

plaintiff

under

alleges

the

a

‘continuing

violation’ doctrine, the alleged violation is not any
particular,

discrete

act

of

harassment,

but

the

cumulative result of “a series of separate acts that
collectively

constitute

practice.’”

one

Id. at 117.

‘unlawful

employment

Therefore, as long as one

“act contributing to the claim occurs within the filing
period,

the

environment

entire
may

be

time

period

considered

by

purposes of determining liability.”

of
a

the
court

hostile
for

the

Id.

Under the continuing-violation doctrine, the acts
occurring

within

the

statutory

their own, be actionable.

period

need

not,

on

Instead, they need merely to

contribute to the same unlawful employment practice.
See Shields v. Fort James Corp., 305 F.3d 1280, 1282
(11th Cir. 2002) (“Put simply, if the smallest portion
of that ‘practice’ occurred within the limitations time
period,

then

the

court

should
17

consider

it

as

a

whole.”).

However, “[f]or an act to be considered part

of an actionable hostile work environment claim, it
must be of a sexual or gender-related nature.”

Menefee

v. Montgomery County Bd. of Educ., 137 F. App’x 232,
233 (11th Cir. 2005) (internal citations omitted).
In this case,
August 24, 2012.

Edwards filed her

EEOC

charge

on

Therefore, in order to recover for

the discrimination that occurred in 2011, some portion
of the claim must have occurred after March 25, 2012,
180 days prior to when she filed her EEOC charge.
Edwards’s brief cites evidence of only one specific
incident during the statutory time period,
allegedly sent in June 2012.

an email

The court reproduces the

exchange below, which referenced the rescheduling of a
staff

meeting

due

to

Washington’s

attendance

conference:
“[Edwards:] Lewis, I am upset with
you. You are the only one that will
not be here. I had planned to take off
on both Monday and Tuesday. [...]
“[Washington:] Do our thoughts really
matter? Soooooo mad at you!!!!!
18

at

a

“[E:] Don’t start that silly mess!!!!
No one has done anything to you. I am
not in the mood for your games today!
“[W:] You are right....not yet:):)...u
should be here!!!! Great conference.
Have something for you.
“[E:] Forget it. Learn a lot. You will
have to come back and share with the
group.
“[W:] Headed to airport.
“[E:] Ok.
flight.”
June

25-27,

Edwards

2012

argues

You

guys

emails
that

have

(doc.

no.

Washington’s

a

safe

40-29),

at

statement

something for you” has a sexual connotation.

2-3.
“Have

But this

comment does not appear sexual on its face, and Edwards
provides no evidence to contextualize this statement as
such, nor any evidence that she perceived it as sexual
at the time.
(explaining

See Menefee, 137 F. App’x at 233-34

that

plaintiff

failed

to

demonstrate

a

continuing violation sufficient to save a claim from
being time-barred when the acts that occurred within
the statutory period did not appear sexual in nature or
related

to

gender

“on

their
19

face,”

and

because

the

plaintiff “failed to present evidence that would yield
a reasonable inference that the [acts occurring within
and outside the statutory period] are part of the same
actionable hostile work environment practice”).

Within

the

it

context

certainly

of

not

harassment,

the

surrounding

clear
such

that
that

this
it

conversation,
statement

could

was

is

sexual

establish

the

continuation of the unlawful employment practice.1
Other than this email exchange, Edwards says that
Washington made 15 to 20 sexual comments to her between
September

2011

messages

and

and
emails

June

2012,

continued

and

that

until

his

that

text
date.

However, she does not recall any particular statements
or incidents.

At the summary-judgment stage, Edwards

must go beyond conclusory allegations, and she must
present evidence sufficient to create a triable issue
1. Edwards also alleges that Washington tried to
call her in August 2012, after he had been instructed
not to contact her, though she did not answer the phone
and does not know why he called. For the same reasons,
this bare allegation is not sufficient to establish
sexual harassment.

20

of fact.

See Evers v. General Motors Corp., 770 F.2d

984, 986 (explaining that after a party has moved for
summary

judgment,

“conclusory

allegations

without

specific supporting facts have no probative value”);
Fed. R. Civ. P. 56(a).
conclusory

The court cannot rely on her

characterization

of

these

interactions

as

sexual harassment; some detail is required to assess
whether

these

acts

violated

the

law.

Edwards

has

failed to meet this burden.2

2. Admittedly, there are two incidents in the
record which possibly occurred during the relevant time
period.
But neither suffices to establish continuing
harassment.
Moreover, the court has no obligation to
search the record or to construct arguments for the
plaintiff.
See Restigouche, Inc. v. Town of Jupiter,
59 F.3d 1208, 1213 (11th Cir.
1995) (“We do not
require trial courts to search the record and construct
every argument that could have been made based upon the
proffered materials.”).
The first is an email that Edwards describes in her
deposition testimony, which was sent by Washington to
Edwards sometime shortly before she resigned, regarding
an upcoming meeting. Edwards alleges that the tone of
this email was condescending and that, because other
employees were copied on the email, she was made to
feel that others believed that Washington had authority
over her.
However, even given the low bar set to
establish a continuing violation, this email could not
(continued...)
21

Moreover,

because

she

claims

to

have

lost

all

records of any statements, including a diary that she
once possessed in which she memorialized Washington’s
statements, and because she denies the existence of any
other records of emails or text messages, it does not
appear that she will be able to produce any additional
evidence at trial.
constitute
an
act
hostile-environment claim.

contributing

to

the

Second, Edwards testified in her deposition and
affidavit about a statement made by Washington about
her intimate life with her husband in or about March
2012, in which Washington asked her, “What, did you
tell [your husband] to just go on and get it and be
through with it[?]”
Edwards Affidavit (doc. no. 5524), at 7.
She mentions it during her deposition in
the context of her concerns that several individuals in
her office had been spying on her--Washington being one
of them--rather than as evidence of Washington’s sexual
harassment.
Indeed, Edwards does not raise this
statement in her briefing as an act that falls within
the statute-of-limitations period.
Therefore, because
Edwards herself does not characterize this statement as
part of the same conduct that she had endured the
previous year, such that it could contribute to her
hostile-environment claim, and because Edwards does not
allege that the statement was made within the statutory
period--that is, after March 25, 2014--this single
statement, without more, does not establish that the
unlawful practice continued into the statutory period.

22

Because she has failed to put forward evidence of
any particular acts contributing to the claim occurring
within

the

statutory

period,

Edwards’s

hostile-environment claim is time-barred.3

The court

will grant summary judgment on this claim.

b. Constructive Discharge
Edwards also claims that her resignation amounted
to

a

constructive

discharge

because

conditions had become intolerable.
the

escalation

of

the

hostile

her

working

Edwards argues that
environment

and

the

impending transfer forced her discharge.
“Under

the

constructive

employee’s

reasonable

unendurable

working

discharge

decision
conditions

to
is

doctrine,

resign

because

assimilated

formal discharge for remedial purposes.”

to

an
of
a

Pa. State

3. Edwards does not argue that the proposed
transfer is an event within the statutory period that
forms
a
continuation
of
the
alleged
hostile
environment.
In any case, because she concedes that
the harassment ceased on its own by June 2012, the
court does not consider the transfer as part of the
hostile environment.
23

Police

v.

Suders,

542

U.S.

129,

141

(2004).

To

establish a constructive discharge, a plaintiff must
make

a

further

showing

than

that

required

for

a

hostile-environment claim: the plaintiff must show that
“the abusive working environment became so intolerable
that her resignation qualified as a fitting response.”
Id. at 134.

“The inquiry is objective: Did working

conditions

become

person

the

in

so

intolerable

employee’s

compelled to resign?”

that

position

a

would

reasonable
have

felt

Id. at 141.

Above, the court explained that Edwards concedes
that the harassment stopped on its own by June 2012 and
that the only evidence she cites to between October
2011 and June 2012 was conclusory.
extent

that

her

Therefore, to the

constructive-discharge

argument

is

based on a hostile environment, it must fail.

Edwards

simply

working

does

conditions,

as

not
they

demonstrate
relate

to

that
the

her

harassment,

had

become “so intolerable” that a reasonable person in her

24

position would have felt suddenly compelled to resign
in August 2012.
To

the

Id.

extent

that

her

constructive-discharge

argument is based on the proposed transfer, it also
fails.

While a transfer “to a position in which [an

employee] would face unbearable working conditions” may
support a constructive-discharge argument, Suders, 542
U.S. at 134, Edwards makes no argument regarding the
working

conditions

that

she

would

face

in

the

new

position, beyond stating that it would move her to a
different

building

and

involve

less

responsibility.

She provided no evidence that the conditions in the new
building

would

responsibilities

be
would

unpleasant
be

reduced

or

that

her

drastically.

Cf.

Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d 974,
978-79 (11th Cir. 2003) (citing examples of intolerable
working conditions sufficient to create a genuine issue
of

material

including:

fact

being

as

to

relocated

constructive
to

a

new

discharge,

work

station

without a desk or computer; being ostracized by other
25

employees at the employer’s instruction; having one’s
duties

and

responsibilities

“reduced

to

virtually

nothing”; being subject to a “host of vulgar comments”;
and being reassigned to “more distasteful duties”).
Moreover,

Edwards

resigned

before

her

transfer

recommendation was approved or finalized.

As noted

earlier, because Edwards was a tenured employee, the
transfer would become effective only if she agreed to
it,

or

after

she

received

written

notice

and

an

opportunity to be heard at a hearing before the school
board.

See Ala. Code 1975 § 16-24C-7(c).

The mere

possibility of facing undesirable conditions cannot, on
its own, support a constructive-discharge claim.

See

Rowell v. BellSouth Corp., 433 F.3d 794, 806 (11th Cir.
2005)

(explaining

plaintiff

may

not

that
remain

“the

possibility

employed

is

not

that
by

a

itself

enough to place a reasonable person in the position of
‘quit or be fired.’”); cf. Kilgore v. Thompson & Brock
Management, Inc., 93 F.3d 752, 754 (11th Cir. 1996) (“A
constructive discharge will generally not be found if
26

the employer is not given sufficient time to remedy the
situation.”).

c. Disparate Treatment
Based on a theory of disparate treatment, Edwards
asserts a sex-discrimination claim distinct from her
hostile-environment claim.

She argues that the school

board discriminated against her on the basis of sex
when it developed a plan to transfer her, rather than
Washington (a man), out of the central office.4

Edwards

may establish a prima-facie case of disparate treatment
based on her sex by showing: (1) she is woman; (2) she
was subjected to an adverse-employment action; and (3)
her employer treated similarly situated male employees
4. In her amended complaint, Edwards argues that
the school board discriminated against her by accepting
her resignation without having taken any action against
Washington and by allowing Washington to resign with
benefits rather than being terminated.
As she no
longer pursues these theories, Edwards has abandoned
them.
See Resolution Trust Corp. v. Dunmar Corp., 43
F.3d 587, 599 (11th Cir. 1995) (explaining that
“grounds alleged in the complaint but not relied upon
in summary judgment are deemed abandoned”).

27

more favorably.

Maniccia v. Brown, 171 F.3d 1364, 1368

(11th Cir. 1999).
The
subject

school
to

board

an

argues

that

Edwards

adverse-employment

was

action;

not
that

Washington was not similarly situated to Edwards; and
that, because he was eventually terminated, Washington
was

not

agrees

treated
that

no

more

favorably.

Because

adverse-employment

the

court

action

was

taken

against Edwards, there is no need to reach the school
board’s other arguments.
The plan to transfer Edwards did not constitute an
adverse-employment
before

the

action

transfer

because

decision

was

Edwards

resigned

finalized.

An

employment action is the “means by which the supervisor
brings the official power of the enterprise to bear on
subordinates,” Burlington Industries, Inc., v. Ellerth,
524 U.S. 742, 762 (1998), and an employment action can
be adverse when it causes an employee’s “discharge,
demotion, or undesirable reassignment.”

Faragher v.

City of Boca Raton, 524 U.S. 775, 808 (1998).
28

Under

Alabama

law,

Edwards--as

a

tenured

employee--was

entitled to written notice of Superintendent Thompson’s
transfer recommendation and an opportunity to be heard
by the school board before it approved the proposed
transfer.

See

1975

Ala.

Code

§

16-24C-7(c).

But

Edwards resigned before receiving the written notice
and

before

proposed

meeting

Alabama,
offer

to

the

transfer--and,

recommendation
action.

with

See
480

could
Baldwin
F.3d

transfer

1287,
an

regarding

therefore,

become
v.

board

an

Blue
1300

the

before

the

adverse-employment

Cross/Blue
(11th

employee,

Cir.

however,

Shield
2007)
is

of

(“An

not

an

employment action; it is merely an offer. Providing an
employee with a choice about where she works does not
change the terms or conditions of her employment.”).
Because Edwards has not established that she was
subjected to an adverse-employment action, the court
will grant summary judgment on the disparate-treatment
claim.

29

3. Retaliation
“Title VII prohibits not only discrimination, but
retaliation
opposed

any

against

an

practice

employee
made

practice by Title VII.’”

because

an

unlawful

she

‘has

employment

Kidd v. Mando Am. Corp., 731

F.3d 1196, 1211 (11th Cir. 2013) (quoting Crawford v.
Carroll, 529 F.3d 961, 970 (11th Cir. 2008)).

Edwards

argues that she was retaliated against when Thompson
proposed

to

transfer

her

after

she

voiced

concerns

about Washington a second time.
Once a plaintiff establishes a prima-facie case of
retaliation, the burden of production shifts to the
defendant to articulate a legitimate, non-retaliatory
and

non-discriminatory

reason

adverse-employment action.

for

the

See McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973); Brown v. Alabama Dep’t
of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010); see
also Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S.
248,

252-53

(1981).

The

school

board

argues

that

Edwards has failed to make the required prima-facie
30

showing of retaliation.

The court disagrees.

However,

because “[i]t matters not whether [the plaintiff] has
made out a prima facie case if she cannot create a
genuine

issue

defendant’s]
adverse

of

material

proffered

action]

are

fact

reasons

pretext

as

to

for

masking

whether

[the

[the

materially

discrimination.”

Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253,
1265 (11th Cir. 2010), the court will turn first to
Edwards’s ultimate burden.
The school board has articulated two reasons--other
than the issues involving Washington--behind Edwards’s
transfer: first, Edwards was to be moved because of
concern about a possible romantic relationship between
Edwards and a supervisee; and, second, Edwards was to
be moved away from the staff members who she believed
were involved in a conspiracy against her.

Edwards

must therefore prove by a preponderance of the evidence
that

these

retaliation.

reasons

form

Moreover,

a

pretext

because

the

for

unlawful

Supreme

Court

recently held that to prove retaliation, a plaintiff
31

must demonstrate that her protected activity was the
‘but-for’
Edwards

cause

must

of

also

the
prove

adverse-employment
that

her

action,

complaints

about

Washington were actually the ‘but-for’ cause of the
proposed transfer.

See Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 133 S.Ct. 2517 (2013).5
To prove ‘but-for’ causation, a plaintiff will not
meet her burden simply by proving that the protected
activity was a “motivating factor for any employment
practice, even though other factors also motivated the

5. Though the Court did not clarify at what stage
in the McDonnell Douglas analysis a plaintiff must
prove ‘but-for’ causation, the Eleventh Circuit has
incorporated ‘but-for’ proof into the burden of
persuasion to be carried by the plaintiff after the
employer has articulated a legitimate, non-retaliatory
reason, rather than a burden of production to be
carried when making a prima-facie case. See Mealing v.
Georgia Dep’t of Juvenile Justice, 564 F. App’x 421,
427 (11th Cir. 2014) (applying the Nassar standard
after the burden shifts back to the plaintiff); Smith
v. City of Fort Pierce, Fla., 565 F. App’x 774, 778
(11th Cir. 2013) (explaining that showing but-for
causation is part of the plaintiff’s burden of
persuasion); see also Sims v. MVM, Inc., 704 F.3d 1327,
1337 (11th Cir. 2013) (applying but-for causation
requirement in the context of the Age Discrimination in
Employment Act of 1967, 29 U.S.C. §§ 621–634).
32

practice.”
§

Nassar, 133 S.Ct. at 2526 (citing 42 U.S.C.

2000e-2(m)

and

anti-discrimination
“lessened

explaining

provision

causation

of

standard,”

retaliation provision).

that

Title

as

VII

compared

the
has
to

a
the

Instead, the plaintiff must

prove that “the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action
or actions of the employer.”

Id. at 2533; see also id.

at 2525 (explaining traditional principles of but-for
causation in tort law).
Edwards cannot meet her burden.
not

demonstrate

that

the

school

First, she does
board’s

proffered

reasons are pretextual.

Edwards attempts to rebut the

school

regarding

board’s

argument

her

supervisee

by

explaining that the transfer in fact would have moved
her closer to him, but the record reflects that the
supervisee,
proposal.

too,

was

to

be

transferred

under

the

And Edwards provides no response whatsoever

to the school board’s argument that the transfer was
intended to move her away from the other staff members
33

that she believed were involved in a conspiracy against
her.
Moreover, because Edwards fails to rebut the school
board’s contention that legitimate reasons, any one of
which would have alone more than adequately justified
her transfer, no reasonable factfinder could conclude
that the proposed transfer “would not have occurred”
without her internal complaint.

Smith v. City of New

Smyrna Beach, 588 F. App’x 965, 981 (11th Cir. 2014).
She therefore has failed to prove but-for causation.
See Nassar, 133 S.Ct. at 2525 (“It is ... textbook tort
law that an action is not regarded as a cause of an
event

if

the

particular

event

would

have

occurred

without it.”); see also Burrage v. United States, 134
S. Ct. 881, 888 (2014) (discussing
test,

and

explaining

that

but-for

Nassar’s but-for
causation

can

be

shown when two or more factors combine only “so long as
the

other

factors

alone

would

not

have

done

so”).

Edwards’s retaliation claim fails as a matter of law.

34

B. § 1983 Claim
Edwards

also

“DELIBERATE

brings

a

INDIFFERENCE

claim,
SECTION

which

she

1983,”

calls
against

Superintendent Thompson and Assistant Superintendent of
Human

Resources

Arrington

in

their

official

and

individual capacities, arguing that they “acted with
deliberate indifference to the discriminatory acts of
Lewis Washington and the rights of Plaintiff.”
Complaint (doc. no. 14), at 18-19.6

Amended

It appears that

Edwards brings a cause of action under 42 U.S.C. §
1983,

predicated

discrimination

and

on

deliberate
the

indifference

deprivation

of

to

certain

unspecified rights.

6. At certain points in this section of the
complaint, Edwards seems to also plead generally
against all of the defendants.
However, because she
states that the claim, as a whole, “is brought against
individual Defendants in their official and individual
capacity,” and because she specifically names only
Thompson and Arrington, the court will construe the
claim as against only Thompson and Arrington, in their
official and individual capacities.
35

“Section 1983 provides every person with the right
to

sue

those

violations

acting

of

provisions.

under

federal

Section

substantive

federal

color

of

constitutional
1983

does

rights

in

and

state
and

not
of

law

statutory

create
itself;

merely a vehicle to bring such suits.

for

any
it

is

Therefore, a

§ 1983 plaintiff must allege a specific federal right
violated by the defendant.”
Cnty.,

Fla.,

604

F.3d

Doe v. Sch. Bd. of Broward

1248,

1265

(11th

Cir.

2010)

(internal citations omitted).
Neither
rests

on

the

any

complaint
specific

nor

the

statutory

amended
or

complaint

constitutional

rights violations that would afford her § 1983 relief.7
Nevertheless,

at a pre-trial conference held on the

record, Edwards made clear that her § 1983 claim was
based on Title IX of the Education Amendments of 1972,
as amended (20 U.S.C. § 1681(a)), a statutory scheme
7. Edwards cannot recover under § 1983 for the
deprivation of rights created solely by Title VII. See
Scott v. Estes, 60 F. Supp. 2d 1260, 1269 (M.D. Ala.
1999) (Thompson, J.) (collecting cases).

36

that

prohibits

gender

discrimination

in

education

programs receiving federal financial assistance.
While

Edwards

summary-judgment
coherent.8
violation

mentions

briefing,

Moreover,
of

Title

IX

Title
her

because

argument

she

anywhere

IX

in

did
her

not

in

her

is

not

allege

complaint

a
or

amended complaint, she put neither the defendants nor
the court on notice of this claim.

Because it rests

entirely upon grounds that she did not properly raise,
Edwards’s § 1983 claim fails as a matter of law.

See

Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1313,
8. Indeed, much of this section of the briefing is
entirely
unintelligible.
For
example,
the
court
reproduces the Title IX discussion in part, and without
any alteration or correction:
“Jackson v. B’ham Bd. of Education, 544 U.S. 167,
183-184 (2005) holds, that retaliation is a form of
discrimination on the basis of sex prohibited under
Title X; ‘Title IX prohibited sex discrimination by
reciprocated
of
federal
education
funding....
Title VII principle support in Title IX deliberate
with often before the U.S. Supreme Court analyzed
the two sides in reform to school delegates in
different classes....”
See Plf. Response to Summary Judgment (doc. no. 53), at
52.
37

1315 (11th Cir. 2004) (“The central issue in this case
is whether a non-moving party plaintiff may raise a new
legal

claim

for

the

first

time

in

response

opposing party’s summary judgment motion.

to

the

We hold it

cannot.... At the summary judgment stage, the proper
procedure for plaintiffs to assert a new claim is to
amend the complaint in accordance with Fed. R. Civ. P.
15(a). A plaintiff may not amend her complaint through
argument in a brief opposing summary judgment.”)
Therefore,

the

defendants

are

granted

summary

judgment on Edwards’s § 1983 claim.

C. State-Law Claims
Finally,
defendants,
capacities,

Edwards
in

alleges

their

negligently

that

official
and

state-law duty to Edwards.

wantonly

the
and

individual
individual

breached

their

The court declines to reach

the merits of these claims.
A

district

court

has

discretion

to

decline

supplemental jurisdiction over a claim when it “has
38

dismissed

all

jurisdiction.”
taken

into

economy,

claims

over

it

has

28 U.S.C. § 1367(c)(3).

account

include

convenience,

Carnegie-Mellon
(1988).9

which

Univ.

Courts

are

“the

Factors to be

values

of

fairness,

v.

original

and

Cohill,

U.S.

judicial

strongly

484

encouraged

comity.”
343,

to

350

dismiss

state claims when the federal claims have been resolved
prior

to

trial.

See

id.

(concluding

that

“federal

court[s] should decline the exercise of [supplemental]
jurisdiction by dismissing the case without prejudice”
when the federal law claims have been dismissed prior
to trial).
Committee,

See also Missildine v. Community Action
2011

WL

350517,

at

*3

(M.D.

Ala.

2011)

(Thompson, J.).

9. Carnegie–Mellon was decided before the passage
in 1990 of 28 U.S.C. § 1367, which expressly authorized
district courts to decline exercise of supplemental
jurisdiction over state-law claims if all claims within
the court's original jurisdiction had been dismissed.
Nevertheless,
Carnegie–Mellon
remains
useful
in
analyzing when district courts should decline to
exercise supplementary jurisdiction.
39

In this case, because the court has found against
Edwards on her federal claims prior to trial, her state
claims

will

dismissal

be

will

dismissed
not

without

prejudice

prejudice.

Edwards,

This

because

the

period of limitations for filing the state-law claims
in state court is tolled “while the claim is pending
and for a period of 30 days after it is dismissed
unless State law provides for a longer tolling period,”
pursuant to 28 U.S.C. § 1367(d).
* * *
Accordingly, for the above reasons, the defendants’
motion

for

respect

to

Edwards’s
prejudice.

summary
all
state

of

judgment
Edwards’s

claims

will

will

be

federal
be

granted

with

claims,

dismissed

and

without

An appropriate judgment will be entered.

DONE, this the 23rd day of February, 2015.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE