Palmer v. Elmore County Board of Education et al

Filing 51

ORDER ON PRETRIAL HEARING: It is ORDERED that: 1) The non-jury trial of this cause, which is to last one to two days, is set for 3/13/2023, at 10:00 a.m. at the United States Courthouse in Montgomery, Alabama, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 1/19/2023. (Furnished: Calendar & AG)(amf, )

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

)
)
Plaintiff,
)
)
CIVIL ACTION NO.
v.
)
2:21cv49-MHT
)
(WO)
ELMORE COUNTY BOARD
)
OF EDUCATION and
)
TEMEYRA MCELRATH,
)
)
Defendants.
)
__________________________________________________________________
ORDER ON PRETRIAL HEARING
A pre-trial hearing was held virtually in this case on January 19, 2023, wherein
the following proceedings were held and actions taken:
1.

PARTIES, PRE-TRIAL COUNSEL, AND TRIAL COUNSEL:

The plaintiff is Jonicka Palmer. Attorneys Henry L. “Max” Cassady Jr. and William
“Bo” Johnson III are Ms. Palmer’s trial counsel. Mr. Cassady appeared at the pretrial hearing and will appear at trial. Mr. Johnson was excused from the pre-trial but
will be allowed to participate in trial. The defendants are the Elmore County Board
of Education (“the ECBOE”) and Ms. Temeyra McElrath. Attorney Erika Tatum is
defense trial counsel for the ECBOE, and attorneys John Marsh and Allison Ingram

are defense trial counsel for Ms. McElrath. Ms. Tatum, Mr. Marsh, and Ms. Ingram
appeared at the pre-trial hearing and will appear at trial.
2.

JURISDICTION AND VENUE:

Pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) and (4), this Court possesses
original jurisdiction of Ms. Palmer’s claims brought pursuant to the Americans With
Disabilities Act and the Rehabilitation Act of 1973. Pursuant to 28 U.S.C. §
1391(b)(2013), venue in U.S. District Court for the Middle District of Alabama is
appropriate, because the ECBOE is located in this district and it is the district in
which a substantial part of the acts, omissions, and events occurred that form the
basis of this lawsuit.
3.

PLEADINGS:

The following pleadings and amendments were

allowed:
A.

Plaintiff’s Complaint [Doc. 1];

B.

Ms. McElrath’s Answer to Ms. Palmer’s Complaint [Doc.

26]; and
C.

ECBOE’s Answer to Ms. Palmer’s Complaint [Doc. 27].

4.

CONTENTIONS OF THE PARTIES:

A.

Plaintiff Jonicka Palmer’s contentions

Ms. Palmer contends that the ECBOE violated the anti-retaliation provisions
of the Americans With Disabilities Act and § 504 of the Rehabilitation Act of 1972.
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Ms. Palmer contends, further, that Ms. McElrath violated her First Amendment right
to free speech, which protects Ms. Palmer’s right to advocate on behalf of her son,
A.W., who is a student with multiple disabilities. Ms. Palmer contends that Ms.
McElrath violated her First Amendment rights under color of law as an agent of the
State of Alabama and that Ms. McElrath is liable to her pursuant to 42 U.S.C. §
1983, which provides a cause of action against state agents who violate a citizen’s
Constitutional rights.
B.

Defendant ECBOE’s contentions

The ECBOE denies all material allegations, and specifically denies that it
retaliated or discriminated against Ms. Palmer.
The ECBOE denies all material allegations, and specifically denies that it
retaliated or discriminated against Ms. Palmer.
The ECBOE contends that Ms. Palmer’s claims are barred by the Statute of
Limitations and/or that Ms. Palmer failed to exhaust her administrative remedies as
a prerequisite to filing the instant Complaint.
The ECBOE contends that Ms. Palmer cannot establish Section 504 and ADA
retaliation claims against the ECBOE.
The ECBOE contends Ms. Palmer did not suffer an adverse action.
The ECBOE contends there is no causal connection between Ms. Palmer’s
advocacy and any alleged adverse action.
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The ECBOE contends there is no pretext evidence regarding Defendants’
legitimate nondiscriminatory reasons.
C.

Defendant Temeyra McElrath’s contentions

Ms. McElrath denies all material allegations, and specifically denies that she
retaliated or discriminated against Ms. Palmer.
Ms. McElrath contends that Ms. Palmer’s claims are barred by the Statute of
Limitations and/or that Ms. Palmer failed to exhaust her administrative remedies as
a prerequisite to filing the instant Complaint.
Ms. McElrath contends that Ms. Palmer has no claim under §1983 as any such
claim is duplicative of her Rehabilitation Act and ADA claim.
Ms. McElrath contends that Ms. Palmer suffered no adverse action.
Ms. McElrath contends that there is no causal connection between Ms.
Palmer’s advocacy and any alleged adverse action.
Ms. McElrath contends that she is entitled to Qualified Immunity.
5.

STIPULATIONS BY AND BETWEEN THE PARTIES:

A.

The parties agree that Ms. Palmer’s son, A.W., is a qualified individual

with a disability under both the ADA and Section 504 and was at all times made the
basis of this lawsuit.
B.

The parties agree that Ms. Palmer filed a special education due process

complaint against the ECBOE in 2017.
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C.

The parties agree that the ECBOE and Ms. Palmer reached an

agreement for A.W.’s education plan, which was reduced to a judgment on April 5,
2018, ordering the ECBOE to allow A.W. to physically attend school for a full
school day.
D.

The parties agree that A.W.’s school absences came to the attention of

André Jackson, the ECBOE’s attendance supervisor.
E.

The parties agree that a letter dated January 8, 2019 was sent from

Millbrook Middle School classifying A.W. as truant, and advising that truancy is a
violation of the Alabama Attendance law, (Section 16-28-12), and that failure to
attend a parent conference “may result in the filing of a complaint against the
parent.”
F.

The parties agree that a letter dated January 11, 2019 was sent from

letter from Millbrook Middle School regarding A.W.’s truancy and advising of a
meeting to be held with the ECBOE Attendance Coordinator on January 23rd at 2:00
p.m.
G.

The parties agree that Ms. Palmer filed another special education due

process complaint with the Alabama State Department of Education against the
ECBOE on January 22, 2019.

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H.

The parties agree that Ms. Palmer and an employee from Max

Cassady’s office, Stephanie Enfinger, went to meet with the truancy officer, Andre
Jackson, in-person on January 23, 2019.
I.

The parties agree that neither Ms. Palmer nor Ms. Enfinger informed

the truancy officer, Andre Jackson, that a legal judgment required the ECBOE to
permit A.W. to attend school
J.

The parties agree that neither Ms. Palmer nor Ms. Enfinger informed

the truancy officer, Andre Jackson, that a new due process complaint had been filed
on behalf of Ms. Palmer with the Alabama State Department of Education, the day
before the meeting, January 22, 2019.
K.

The parties agree that Ms. Enfinger secretly recorded the meeting with

the truancy officer, Andre Jackson, without his knowledge or consent, which is not
an illegal recording activity in Alabama.
L.

The parties agree that Temeyra McElrath did not inform the truancy

officer for the school system, André Jackson, that a legal judgment required the
ECBOE to permit A.W. to attend school.
M.

The parties agree that on February 6, 2019, André Jackson provided

A.W.’s name to Sheena Robinson with the Helping Families Initiative at the Elmore
County District Attorney’s office because of A.W.’s school absences.

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N.

The parties agree that on February 12, 2019, Elmore County District

Attorney Randall Houston sent Ms. Palmer a letter that stated that A.W. was truant,
that she was required to participate in a program to address A.W.’s truancy, and that
if she did not participate, then there could be legal consequences for her.
***
It is ORDERED that:
(1) The non-jury trial of this cause, which is to
last one to two days, is set for March 13, 2023, at 10:00
a.m.

at

the

United

States

Courthouse

in

Montgomery,

Alabama;
(2) A trial docket will be mailed to counsel for
each party approximately two weeks prior to the start of
the trial term;
(3) The parties in this case are not required to
file trial briefs.

However, if they wish to do so, their

trial briefs shall be filed no later than March 6, 2023;
(4)

Each party shall have available at the time of

trial, for use by the court (the judge, the courtroom
deputy clerk, and the law clerk), three copies of the
exhibit list and a sufficient number of copies of each
7

photostatically

reproducible

exhibit

for

opposing

counsel, the courtroom deputy clerk, the law clerk, and
the judge to each have a set of the exhibits;
(5) All deadlines not otherwise affected by this
order will remain as set forth in the uniform scheduling
order (Doc. 29, as amended) entered by the court on
October 25, 2021; and
(6) All understandings, agreements, deadlines, and
stipulations contained in this pretrial order shall be
binding on all parties unless this order be hereafter
modified by order of the court.
DONE, this the 19th day of January, 2023.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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