White v. Alabama Institute for the Deaf and Blind et al
Filing
48
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 2/28/2018. (JLC)
FILED
2018 Feb-28 PM 04:41
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
NEKITA WHITE,
)
)
Plaintiff,
)
)
v.
) Case No.: 1:16-CV-190-VEH
)
ALABAMA INSTITUTE FOR THE )
DEAF AND BLIND et al.,
)
)
Defendants.
)
MEMORANDUM OPINION
I.
INTRODUCTION AND PROCEDURAL HISTORY
This employment discrimination action was filed on February 1, 2016, by
Plaintiff Nekita White against Defendants Alabama Institute for Deaf and Blind
(“AIDB”), John Mascia, and Christy Atkinson. (Doc. 1). Count I alleges race-based
discrimination under 42 U.S.C. § 1983. (Id. at 7-9). Count II alleges retaliation, under
§1983 and Title VII of the Civil Rights Act of 1964, for filing EEOC charges. (Id. at
10-11). Count III alleges harassment and a hostile work environment. (Id. at 11-12).
Before the Court are two motions for summary judgment. The first is from
Defendants Alabama Institute for Deaf and Blind and John Mascia (the
“AIDB/Mascia Motion”). (Doc. 34). The second is from Defendant Christy Atkinson
(the “Atkinson Motion”). (Doc. 37). The motions are ripe for review.
Additionally, AIDB and Mascia filed a Motion To Strike White’s response to
their motion for summary judgment. (Doc. 45). Atkinson filed a Motion To Strike
White’s response to her motion for summary judgment. (Doc. 47). Finally, Mascia
“asks the Court to impose sanctions against [White] and/or her attorney.” (Doc. 35
at 11).
For the reasons herein stated, these motions are due to be GRANTED in part
and DENIED in part.
II.
STANDARDS
A.
Motions To Strike
It has long been the law in this circuit that, when deciding a motion for
summary judgment, a district court may not consider evidence which could not be
reduced to an admissible form at trial. See Macuba v. Deboer, 193 F.3d 1316, 1323
(11th Cir. 1999). But, until 2010, Rule 56 lacked a formal procedure to challenge
such inadmissible evidence. In 2010, the advisory committee added Rule 56(c)(2),
which provides:
A party may object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in evidence.
Fed. R. Civ. P. 56(c)(2).
2
B.
Motions For Summary Judgment
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there
is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings, Depo.s,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.”) (internal quotation marks and citation
omitted).
The party requesting summary judgment always bears the initial
responsibility of informing the court of the basis for its motion and identifying those
portions of the pleadings or filings that it believes demonstrate the absence of a
genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings
in answering the movant. Id. at 324. By its own affidavits – or by the depositions,
answers to interrogatories, and admissions on file – it must designate specific facts
showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
3
of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If the evidence presented by the non-movant to rebut the moving party’s
evidence is merely colorable, or is not significantly probative, summary judgment
may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden
of proof on the given issue or issues at trial, then it can only meet its burden on
summary judgment by presenting affirmative evidence showing the absence of a
genuine issue of material fact – that is, facts that would entitle it to a directed verdict
if not controverted at trial. Id. (citation omitted). Once the moving party makes such
an affirmative showing, the burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating the existence of a triable issue of fact.”
Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
4
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance,
the non-movant must rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed verdict motion at trial based on
the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant
may no longer rest on mere allegations; instead, it must set forth evidence of specific
facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this
position may use to discharge its burden is to provide affirmative evidence
demonstrating that the non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering
evidence sufficient to withstand a directed verdict at trial on the material fact sought
to be negated. Id.
5
II.
FACTUAL BACKGROUND1
A.
The Motions To Strike Are Due To Be Denied.
As an initial matter, the Court takes up the Defendants’ Motions To Strike
since they will affect the factual background and the ultimate determination on
summary judgment. See English v. CSA Equipment Co., LLC, 2006 WL 2456030, *2
(S.D. Ala. Aug. 22, 2006) (Steele, J.) (“Because any summary judgment evaluation
necessarily hinges on the type and nature of facts in the record and on the arguments
that may be considered, and because the Motion to Strike calls into question which
facts and arguments are properly before the Court, resolution of that Motion is the
appropriate analytical starting point.”).
AIDB/Mascia move to strike all references to the time period preceding
September 27, 2013, because the Complaint specifies that it refers to the events after
1
The facts set out herein are gleaned, in substantial part, from the facts proffered by the
parties. To the extent that a party has proffered a fact which is not disputed it has been included
without citation. To the extent that a fact proffered by a party was disputed by another party, the
Court first examined the proffered fact to determine whether the evidence cited in support of that
fact actually supported the fact as stated. If it did not, the fact was not included. If it did, the
Court then looked to whether the evidence cited in support of the dispute actually established a
dispute. If it did not, the Court presented the fact, with citation to the evidence supporting the fact
as proffered. If the cited evidence was disputed by contrary evidence, the evidence was viewed,
as this Court must, in the light most favorable to the non-movant, with citation to such
supporting evidence. If more explanation was needed, the Court included that information in an
appropriate footnote. Some facts proffered by the parties, which the Court deemed irrelevant
and/or immaterial, may have been omitted. Further, as necessary, the Court may have included
additional facts cast in the light most favorable to the non-movant.
6
that date. (Doc. 45 at 1-2).2 At the very end of the motion, without much explanation,
AIDB/Mascia claim that these references should be stricken because they are “barred
by the statute of limitations; outside the parameters of the complaint; [have] no
continuity given the personnel changes of AIDB; and [have] no connection with the
employment position that occurred after September 27, 2013.” (Id. at 2). The Court
notes that the objected-to references occurred immediately prior to the date of the
complaint. This temporal proximity, combined with AIDB/Mascia’s failure to cite a
single legal authority showing why the objected to references should be stricken,
convinces the Court it should not strike those references. Accordingly, this motion
is DENIED.
Additionally, Atkinson takes issue with the manner in which White responded
to her Motion For Summary Judgment. (Doc. 47 at 2). Atkinson states that White’s
response “does not state additional disputed facts in a separately designated section
as mandated in the Court’s summary judgment requirements.” (Id.). Atkinson asks the
Court “to strike: (1) any statements of alleged facts interspersed in [White’s] response
to [Atkinson’s] fact statements; and (2) all assertions of facts by [White] that are not
supported by specific references to the evidence.” (Id.).
The Court’s Uniform Initial Order speaks to Atkinson’s Motion To Strike. (See
2
Atkinson adopts all the arguments in AIDB/Mascia's Motion To Strike. (Doc. 47 at 1).
7
Doc. 3). The Court declines to strike White’s statements in her response to Atkinson.
The Court will instead treat them as the evidentiary record being used to dispute
Atkinson’s facts. While White’s response is not conventional,3 the Court notes that
Atkinson was able to reply effectively. (Doc. 46). Further, “this court has managed
to parse those responses.” See Rhodes v. Arc of Madison County, Inc., 920 F. Supp.
2d 1202, 1225 (N.D. Ala. 2013) (Smith, J.). However, the Court also notes that this
case is at the summary judgment stage. That means that assertions of fact need to be
buttressed by citations to the record, as the Court’s previous discussion of the
standard indicates. Getting past summary judgment is very different from getting past
the pleading stage. Accordingly, the Court does not give weight to naked allegations
of fact that do not have a citation to the evidentiary record. Obviously, this goes for
all parties. In conclusion, Atkinson’s Motion is DENIED.
B.
Statement of Facts Relating to Atkinson
Christy Atkinson served as principal of the Helen Keller School from July 2011
until August 2015. Nekita White began working at AIDB in July 2004 as a Dorm
Aide on third shift. White identified, in her deposition, seven jobs as AIDB that she
applied for but was not hired due to alleged discrimination or retaliation:
3
These long, narrative-like responses, that often neither expressly admitted or denied the
allegedly undisputed fact, created extra, unnecessary, work for the Court.
8
1.
2.
3.
4.
5.
6.
7.
Dorm/Teacher Aide, Helen Keller School–January 29, 2012
Dorm/Teacher Aide, Helen Keller School–February 2, 2012
Job Coach, Helen Keller School–June 13, 2014
Job Coach, Helen Keller School–June 22, 2015
Job Coach, Helen Keller School–August 5, 2015
AIDB Bus Guide–May 20, 2016
Job Coach, Helen Keller School–August 23, 2016
Atkinson was not employed at AIDB in 2016 and had nothing to do with the last two
job openings above. The job and qualification requirements for Dorm Aides included
monitoring students every thirty minutes, ironing, washing/folding clothes, mopping,
making beds, waking students, assisting dressing, administering medication, and
feeding breakfast. (White Ex. 1); (White Depo., 17:6-10).
Dorm/Teacher Aides differ from Dorm Aides and were responsible for
assisting a teacher in instructing students in the classroom. Dorm/Teacher Aide
positions required one year experience working with students in an educational
environment.4
The AIDB Human Resources Department, not Atkinson, took applications for
open jobs and selected the applicants to be interviewed. Atkinson was not provided
application materials for White in January or February 2012. In January and February
2012, available Dorm/Teacher Aide positions were posted for AIDB in its entirety,
4
White eventually accepted a job as a Dorm/Teacher Aide in July 2012. (White Depo.,
30-31).
9
not just for positions supervised by Atkinson. Applications were submitted to the
Human Resources Department and interviews were scheduled and conducted by the
Human Resources Department.
Representatives from each AIDB campus attended the interviews for the
available positions in January and February 2012. Atkinson attended to interview
candidates for second and third shift jobs at the Helen Keller School. At that time, the
Helen Keller School did not have a first shift Dorm/Teacher Aide position available.
White was not one of the candidates who interviewed for the available jobs in January
and February 2012, and Atkinson did not know that White had applied for any job
at the Helen Keller School. (Atkinson Dec. at 3). However, White did apply for the
Dorm/Teacher Aide job postings in January and February 2012. (White Depo. at 211212). This was after she had submitted her physician’s note to the Human Resources
office regarding her diagnosis of severe circadian rhythm disorder and requested an
accommodation that she change to day shift or day evening shift. (White Depo., 209);
(White Ex. 3). White sent a letter to John C. Connell, Director of Residential Staff,
regarding a letter from her physician about her diagnosis and requested an
accommodation. (White Ex. 4). Connell submitted a letter to White indicating that he
received her October 25, 2011, letter informing him of her medical disorder and
request for accommodation and that, at that time, there was not a position available
10
to accommodate her. (White Ex. 5). In January 2012, White obtained a physician’s
note from Dr. Moersch saying that she is pregnant, and the pregnancy is a high risk
threatening miscarriage. (White Ex. 8).
The selection for each available job at the Helen Keller School while Atkinson
was Principal was made by a committee whose members rated each applicant
independently. The average of the committee members’ scores for each candidate
determined the candidate who scored highest, who Atkinson would then recommend
for the job. Atkinson’s scores were weighted equally with those of the other
committee members.5 Atkinson did not attempt to influence the scores or decisions
of other committee members or affect the recommendations in any way other than
making her own individual evaluation of each candidate.6
Atkinson and Tenicia Barclay, a black female, interviewed the qualified
candidates for a Job Coach position in June 2014. The committee recommended Katie
Trotter, a white female,7 for the Job Coach position in June 2014. White contends that
Atkinson was on the selection committee to discuss her and negatively influence the
5
White’s response to Atkinson’s Fact No. 12 is an example of the type of narrative
answer that Atkinson moved to strike earlier. It consists of numerous sentences that are without
citation to any evidence in the record.
6
White denies this fact but does not cite to any evidence in doing so. (See Doc. 41 at 7).
A mere denial by counsel is not enough.
7
(Atkinson Decl., 3).
11
committee as it relates to her and Atkinson’s animosity towards her because of the
EEOC complaints White filed. Trotter met all the requirements for the Job Coach
position.White believes that she did as well. (White Depo. at 118: 6-9). The
responsibility of a Job Coach was to help train students for jobs with employers
outside of AIDB. Trotter had prior, similar experience preparing students for living
and working outside AIDB. She also had completed college courses toward a degree
in education. Atkinson claims that she ranked Trotter higher than White because of
prior relevant experience, education, and more favorable impressions during the
interview. In response, White falls back on her general allegations of Atkinson’s
animosity. She then relies on a conversation she had with Trotter that indicated that
she was interviewed over the phone and accepted after being called while in the
shower. (Doc. 41 at 8).8 However, this is not enough to create a triable issue because
White does not to cite to any record evidence that disputes that Atkinson chose
Trotter based on legitimate reasons.
White alleges that Nephateria Jones,9 a black female, was hired for a Job Coach
8
It is not clear to the Court after reading the deposition whether this was referring to one
phone call or two.
9
Atkinson spells Ms. Jones’s first name as “Nepheteria.” (Doc. 38 at 9). AIDB/Mascia
spell Ms. Jones’s first name as “Nephateria.” (Doc. 35 at 7). They also spell her name as
“Nefeteria.” (Id. at 13). White spells Ms. Jones’s first name as “Nephateria,” so that is what the
Court has used. (Doc. 40 at 8).
12
position that White also applied for. White described Jones, who had a master’s
degree, as “overqualified”, but also claimed Jones lacked certifications for CPR and
sign language and did not have a commercial driver’s license. AIDB job candidates
are allowed to obtain those required certifications within a specified time after being
hired and are not required to possess them upon applying. Jones had a master’s degree
in business, had worked at a community college helping place students in jobs in the
community, and had worked for a group home specializing in transitioning residents
to the community. Jones was fired after approximately one year at AIDB.10 Atkinson
found Jones to be better qualified than White.11
White does not remember if she interviewed for a Job Coach position in
August 2015. She does not know who was selected for the position, but she believes
a black female named Shametra Miller was hired. Miller had previously been a
teacher in the Anniston City School system and was overqualified, in White’s
opinion. White interviewed for the Job Coach position and did not receive anything
acknowledging her application nor any correspondence indicating that she had not
been selected for the position. (White Depo., 139:4-12). Miller was selected but left
10
The Court notes that White claims she was qualified for this job position, but her cited
deposition testimony does not state that she possessed a CDL and was proficient in sign language
at this time. (See Doc. 41 at 8).
11
White does not cite to any evidence to rebut this contention. (See Doc. 41 at 8).
13
after one year of employment as Job Coach. (White Depo., 137:9-12).12
White requested as an accommodation for a sleep disorder in October 2011 to
move to first shift or a split day/evening shift. She reported to her doctor she was
sleeping from four hours (9AM - 1PM) to six hours (8AM - 2PM) per day at that
time. (Atkinson Ex. 11, Physician’s Note and Work Status Report). At the time
White requested a shift change based on her doctor’s recommendation, there was no
first-shift position available. (Atkinson Depo., 35:1-5, 37-6-19). White was offered
a split day/evening shift job in December 2011, which she declined.13 AIDB placed
White in a first-shift position in June 2012, which was the first first-shift position to
become available after White provided the recommendation from her doctor.
(Atkinson Depo., 42: 14-21).14
White also cites to evidence to support her allegations of a hostile work
environment. She was removed from the substitute list. (White Ex. 25, 26, 27). She
was not allowed to have a baby shower before 3PM, and she introduced evidence that
12
White’s citation does not support the fact that she met the position requirements or that
she was qualified for the position. (See Doc. 41 at 10) (citing White Depo., 139: 4-12).
13
White submitted medical notes from Dr. Rahim Fazal and Dr. Barbara Moersch
regarding her medical condition (severe circadian rhythm and high risk pregnancy threatening
miscarriage) and, based on medical advice, was unable to accept the split shift position. (White
Depo., 30: 9-19, 68: 14 to 69:4, 82:21 to 83:12); (White Ex. 3); (White Ex. 8); (White Ex. 35).
However, White's Exhibit 3 actually indicates that Fazal indicated that a "day-evening split
shift" would benefit White. (White Ex. 3).
14
White denies this but does not cite any evidence. (See Doc. 41 at 11).
14
others had been allowed to do so. (White Ex. 12, 13, 14). She was removed from the
active bus driver list. (White Ex. 29, 30, 31). She was required to draft and submit an
additional statement related to a medical error even though she complied with AIDB
medical error protocol. (White Ex. 15-24).
C.
Statement of Facts Related to AIDB/Mascia15
a.
White’s Allegations of Discrimination
Students in the Awakenings Program, ages 3 to 21, are severely impaired.
Night shift Dorm Aides check on the kids every 30 minutes while they are asleep;
iron and wash their clothes; clean the dorm; and administer medication. From 2004
to 2011, White worked at AIDB as a 3rd shift (night shift) Dorm Aide. (Challender
Aff. at 13-14). In October 2011, White’s physician, Dr. Rahim Fazal, diagnosed her
with severe circadian rhythm disorder and requested an accommodation that she
change to day shift or day evening split shift. (White Depo., 209:3-8); (White Ex. 3).
On October 24, 2011, White advised her supervisor that she had a sleep disorder–
Circadian Rhythm sleep disorder. (Challender Aff. at 13-14). She forwarded a letter
to John C. Connell, Director of Residential Staff, informing him of her physician’s
diagnosis of severe circadian rhythm disorder and request for accommodation. (White
15
The Court decided it made the most sense to address these facts in a chronological
fashion. According, Defendants’ Section J is addressed earlier here than the Defendants wrote it
in their brief.
15
Ex. 4). Connell drafted a letter to White acknowledging receipt of the October 25,
2011, letter and the severe circadian rhythm disorder and request for accommodation
and that at that time, there was not a position available to accommodate her. (White
Ex. 5). A meeting was scheduled for November 4, 2011, to discuss White’s medical
issue as well as accommodation, but the meeting did not occur. (White Ex. 6). The
meeting was rescheduled for November 8, 2011, with Connell memorializing the
meeting in a memorandum dated the same day. (White Ex. 7). On January 5, 2012,
White was informed she was pregnant/ high risk pregnancy threatening miscarriage.
(White Ex. 8). In January 2012, White was offered a split shift position, a position she
declined because she had a high risk pregnancy and could not perform the duties.
(Doc. 36-4 at 12); (White Depo., 30:8-31:4); (Atkinson Depo., 37:22-38:5). The
position was offered to Michelle Lizik. White went on FMLA leave from January 31,
2012, to March 10, 2012. In July 2012, White was offered a 1st shift position as a
Dorm Teacher Aide. She accepted the position. (White Depo., 30:8 to 31:4). The
Dorm Teacher Aide position was offered to her without her applying for the position.
Dorm Teacher Aides serve the same students as Dorm Aides and have similar
duties. Dorm Teacher Aides work different hours than Dorm Aides – 8 a.m. to 4:30
p.m. Dorm Teacher Aides assist the teacher: toileting, eating, attending gym, therapy,
field trips, and changing diapers. They help clean and maintain their work
16
environment, as do Dorm Aides. The lead teacher for the Awakenings Program was
Jennifer Oldenburg. White was assigned to her. White believes she was discriminated
against when she applied for, but was not selected as, a Dorm Teacher Aide in 2012,
Job Coach positions in 2014-2016; and as a bus guide in 2016.
White believes she was better qualified to be a Dorm Teacher Aide than Lizik,
who was selected for a position posted January 29, 2012. White had filed an EEOC
complaint alleging discrimination in 2011. White was pregnant from October 2011
to July 16, 2012. (White Depo., 70:1-22). The Dorm Teacher Aide position was
posted January 2012. (Id.).
White believes she was not selected in retaliation for filing an EEOC complaint
in 2011.16 Between 2008 and 2012 four Caucasians were selected as Dorm Teacher
Aides. The basis for White’s contention of discrimination is that they were white. She
also alleges retaliation. (White Depo., 71:20-23). White had no conversation with the
Helen Keller School principal asking why other applicants were selected. Dorm Aides
were paid less than Dorm Teacher Aides.
Regarding the position posted February 2, 2012, White does not know who
applied or who was selected. White acknowledged that if she had been selected, it
16
The Court notes that White’s exhibit indicates that there have been three EEOC
charges. The first was filed on April 9, 2012. (White Ex. 11). The second was filed on January
28, 2013. (Id.). The last was filed on April 21, 2014. (Id.).
17
was a job she would have started immediately.17 She never asked her principal or
talked with her principal about who was selected or why. (White Depo., 94:10-19).
Katie Trotter was selected for the Job Coach position posted on June 3, 2014.
(White Depo., 112:18-20). White does not know Trotter’s qualifications. (White
Depo., 114:9 to 115:1). Trotter was attending school. (Id.). White avers that she was
not selected based on retaliation. (White Depo., 112:13 to 115:19). She avers that she
had been employed by AIDB for several years prior to Katie Trotter’s hiring and she
had more seniority and experience and qualifications than Katie Trotter. (White
Depo., 114:15-19). White had applied for multiple positions at AIDB and had not
been selected, while Katie Trotter had been moved, transferred, and promoted two or
three times. (Id. at 119:19-22).
Nephateria Jones was employed for the Job Coach position posted June 22,
2015. White alleges that Jones did not possess the necessary qualification, but as the
17
White’s deposition states as follows:
Q
The job that was posted February 2, 2012, when was that to begin?
A
It don’t tell us what date you will begin. . . .
Q
Was it something if you had been selected, you would have begun
immediately?
A
Correct.
(White Depo., 89:2-19).
18
Court noted above, she was not required to possess those qualifications at the time
of hiring. White also believes that Jones was overqualified. (White Depo., 122:17 to
123:1). White thought she was getting a Master’s degree from Jacksonville State
University. (Id.).
White asked to be transferred to the Dorm Teacher Aide position even though
the pay was lower than the pay for Dorm Aide because of the different hours. (White
Depo., 126:10-14). She wanted the change because of her pregnancy and circadian
rhythm disorder. (Id.).
White applied for the AIDB Job Coach position posted August 6, 2015. (White
Depo., 131:5 to 140:4). For that position, Shametra Miller, an African-American
female, was selected. (Id. at 136:5-12). White believes Miller was overqualified
because she had been a teacher in the Anniston school system. (Id. at 137:16-20).
White believes she was not selected in retaliation. (Id. at 138:13-20).
White applied for the AIDB Bus Guide position posted May 20, 2016. For this
position, Michelle Lizik was hired. (White Depo., 147:14-22). Lizik was already
serving as a bus guide for route to Montgomery. (Id. at 151:1-6).18 However, she
18
White’s Depo. stated:
MR. SWEENEY:
[Lizik] would [have] had more experience as a bus guide
than you for that position because she was already a bus
guide?
19
believes she was discriminated against because she was not hired. (Id. at 149:14 to
150:2).
The Job Coach position posted August 23, 2016 was not filled. White believed
it was not filled in order to retaliate against her.
White never filed a complaint concerning the use of staff to drive students to
the horse barn. She never asked to go. White believed she was discriminated against
when she was not allowed to attend a student’s19 graduation. She believes she was
discriminated against when she was asked not to have a baby shower during academic
times – 1 p.m. to 3 p.m. – but could have a baby shower after 3 p.m. (White Depo.,
219:22 to 220:6). There is evidence that others had baby showers on campus during
the earlier time. (White Ex.13, 14).
White believes it was discriminatory to be asked to write a statement about
administering the wrong medication, when others did not have to submit an additional
report. (White Ex. 19, 20). Taken in the light most favorable to White, submitting an
additional report was not required under protocol. (White Ex. 22 at 56).20 To write up
A.
Yes.
(White Depo., 153:6-10).
19
The student’s name is immaterial, so the Court declines to include it in this opinion.
20
Parties should have included pincites. They did not. As a result, the Court sifted
through voluminous evidence to try to fill in the gaps.
20
the statement took White five minutes, she did it while at work, she was paid for that
time, and she was not disciplined. (White Depo., 232:2-4, 242:9-13).
White was removed from the substitute list on October 11, 2012, because of
her primary position as a Dorm Teacher Aide. (White Ex. 27). However, she never
requested to substitute at the Helen Keller cafeteria on the weekend. (White Depo.,
229:17-19). At most, she sent Atkinson an email asking why she was not able to
substitute because she believed she could still work on the weekends. (Id. at 229:14
to 230:3). In her deposition, White stated that “[r]ight now I am not being
discriminated against.” (Id. at 181:9-12). The Defendants deny generally the
allegations of discrimination.21
c.
Response by John Mascia to Allegations of Discrimination
Mascia (“Mascia”) serves as President of AIDB. White sues Mascia in his
21
The Defendants state with evidence, and White fails to deny with evidence, that:
41. AIDB is an Equal Opportunity Employer with policies and procedures adopted
to assure that all employment decisions are made fairly, for legitimate
nondiscriminatory reasons. (Ex. 2, p. 2, Appendix A; Ex. 3, p. 2).
42. AIDB has adopted policies, trained its employees, and post notices of its
policies and practices regarding its nondiscrimination policies and practices. (Ex.
2, p. 2, Appendix A).
43. AIDB has adopted and implemented employment practices and procedures
designed to be fair and transparent. All employment decisions are based on
legitimate nondiscriminatory reasons. (Ex. 3, pp. 2-3).
(Doc. 35 at 10).
21
official capacity as President of AIDB and in his individual capacity. Mascia has had
no involvement or interaction with White in either his official capacity as President
or in his individual capacity. (Mascia Aff., 1-2).22 Mascia requested that he be
dismissed from the lawsuit in his individual capacity since there were no facts to
support Plaintiff’s contentions against him in his individual capacity. (Id. at 5).
Mascia has not discriminated against White regarding any of the positions to which
she applied and was not selected. Mascia does receive information about the person
deemed best qualified for a particular position. Mascia does not receive the names or
other information about persons who applied for a position but were not selected. He
reviews the information submitted about the person recommended to be employed,
but he is not provided information about the persons who applied. Mascia had no
knowledge that White applied for any of the positions about which she claims
discrimination and/or retaliation. Mascia recommended persons to be employed by
the AIDB Board based entirely on the credentials of the person being recommended,
and without any information about White or anyone else who applied for and was not
selected for a position of employment. Mascia never considered anything about White
– her gender, her race, or her EEOC complaints – when he made recommendations
22
White admits that she has no factual basis to support a charge of discrimination against
Mascia as President of AIDB or in his individual capacity.(Id. at 3-5) (citing White Depo.
227:6-11).
22
for employment to the Board.23
d.
White’s Allegations of Specific Job Positions
1.
Job Coach Position Posted June 13, 2014
White applied for this position and was interviewed. (Doc. 36-3 at 10). The
parties dispute why she was not hired. White avers that she had been employed by
AIDB for several years prior to Katie Trotter’s hiring and White had more seniority
and experience and qualifications than Katie Trotter. (White Depo. at 114:15-19).
White had applied for multiple positions at AIDB and had not been selected.(Id. at
119:19-22). Katie Trotter had been moved, transferred, and promoted two or three
times. (Id).
A job coach is assigned to a student to escort them to whatever employment
they were training for, evaluate the student and determine what they could do and
could not do, assist them in completing job applications and determining job duties,
23
White perfunctorily denies these allegations, but provides no evidence and no citations
to the record disputing them. Under this Court’s Uniform Initial Order, this is not a proper way to
dispute facts at summary judgment. This Court’s Uniform Initial Order is clear:
Any statements of fact that are disputed by the non-moving party must be
followed by a specific reference to those portions of the evidentiary record
upon which the dispute is based. All material facts set forth in the statement
required of the moving party will be deemed to be admitted for summary judgment
purposes unless controverted by the response of the party opposing summary
judgment.
(Doc. 3 at 17) (emphasis added).
23
and assist them and check on them periodically. (Id. at 133:17-134:12). White’s job
experience was limited in scope as she had served in the same position since 2004.
(Challender Aff. at 9); (Oldenburg Aff. at 4). 24 White did not have the education,
experience or skill set for this position. (Id.).25
White believes that “Katie came a couple of years after [she] had started at
AIDB.” (White Depo. at 114:15-19). She further believes that she “probably had more
years and experience, tenure than her and probably had my qualifications and
everything before Katie”. (Id.). However, Trotter was completing her education
degree. (Challender Aff. at 9-10). She had worked in the transition program at Helen
Keller for three years, designing education modules to help students learn
employment skills. (Id.).
2.
Job Coach Position Posted June 22, 2015
White applied for this position, but she was not selected. (Challender Aff. at
10). Nephateria Jones, an African-American female, was selected. (Id. at 10-11). The
position required “sign language proficiency” within “thirty (30) months of
employment.” (White Ex. 28). It further required a CDL “within the first twelve (12)
24
Challender’s Aff. suggests that the correct date is 2004, not 2014, as Defendants’ brief
suggests. (Challender Aff. at 9); (Doc. 35 at 12 ¶56).
25
Without citation, White states that “[she] had limited job experience because [she] was
summarily precluded from promotions or other employment opportunities by Defendant.” (Doc.
40 at 14).
24
months of employment”, and to “maintain yearly certification for the Alabama School
Bus Driver License.” (Id.). White believes that Jones “didn’t get any of her
qualifications for sign language and CPR’s, CDL’s.” (White Depo., 123:11-13).
White also believes that Jones was overqualified. (White Depo., 122:20-21). Jones
had a Master’s degree in business. (Challender Aff. at 10). She had worked at a
community college transition program helping place students in the community. (Id.).
White believes Jones’s hiring was “[r]etaliation for the EEOC.” (White Depo.,
126:14). Jones was fired after approximately one year at AIDB. (Id. at 125:1-10).
3.
Job Coach Position Posted August 6, 2015
White applied for this position, but did not receive anything acknowledging her
application nor any correspondence indicating she had not been selected for the
position. (White Depo. at 135:18-140:7). Shametra Miller, an African-American
female, was selected. (Challender Aff. at 11). Miller has a B.A. from Talladega
College and a M.Ed. in school counseling. (Id.). She was attending school for an
Education Specialist degree. (Id.). She had worked at Talladega College as a Skill
Enhancement faculty member. (Id.). She had taught 8th grade physical science. (Id.).
Given what a Job Coach was expected to do in the community, working with private
employers, and writing written reports, Defendants contend Miller was better
qualified. (Id.). White believes that Miller was overqualified and that Miller was
25
chosen for retaliatory reasons. (White Depo. at 137:9-138:20). Miller did not remain
in the position a year. (Id.).
4.
Bus Guide Postings May 20, 2016
A bus guide assists students on the school bus. It is a part-time position. White
applied for it. She had a CDL (Commercial Driver’s License) and was qualified for
the position. She was interviewed but not selected. White’s Ex. 31 indicates that
AIDB removed staff from their CDL roster if they had not driven a bus for two years,
or indicated that they felt uncomfortable driving a bus. (Doc. 40-31). It also indicates
that White both had not driven a bus for two years, and moreover felt uncomfortable
driving one. (Id.). Lizik was selected for the position. (Challender Aff. at 12). Lizik
was already a bus guide. (Id.). She was experienced and well qualified. (Id.). Lizik
was the bus guide for the Talladega to Montgomery route. (Id.). She applied for this
position to have a shorter route closer to home. (Id.). In her deposition, White stated
the following:
MR. SWEENEY: [Lizik] would [have] had more experience as a bus
guide than you for that position because she was
already a bus guide?
A.
Yes.
(White Depo., 153:6-10). White claims discrimination regarding this position because
she was not selected.
26
5.
Job Coach Position Posted August 23, 2016
White applied for the position, but it was never filled. (White Depo. at 159:13). The position was advertised on August 23, 2016, just before the new principal,
Sandra Ware, assumed her position on September 1, 2016. (Challender Aff. at 12-13).
Ware is an African-American female. (Id. at 13). When she assumed her position as
the new principal, she decided that another Job Coach was not the best use of Helen
Keller’s resources. (Id.). She determined that the funds for this position could be
better used for other administrative positions. (Ware Aff. at 2). At least as of August
23, 2017, an additional Job Coach has not been added. (Id.). White believes the
Defendants’ were retaliating against her. (White Depo., 157:2-9).
e.
Allegations of Hostile Work Environment
1.
Asking White To Write a Statement of Fact Regarding
Improper Medicine Given to a Student on August 13, 2013
On August 12, 2013, White administered incorrect medication to a student. The
student was taken to the hospital emergency room. (Challender Aff. at 6). Given the
serious nature of the matter, Freida Meachem, Vice President of AIDB, requested that
White write a statement about what happened. (Id.). She was never reprimanded. (Id.
at 7). It took her five minutes to write. (White Depo., 232:2-4). The concern was that
the student might not make it. (Atkinson Depo., 97:12-18). There is evidence that
27
Atkinson did not know what the proper protocol regarding statements was, and that
other employees had not written these additional statements. (Atkinson Depo., 53:1421 , 54 18-23); (White Ex. 19, 20).
2.
White’s Claims Regarding the Horse Barn
White was denied the option to go to the horse barn on Tuesdays and
Thursdays. (White Depo., 163:15-22). Instead, she was assigned to stay behind at the
campus with a student. (Id. at 165:6-9). She believes this was retaliation. (Id. at
171:7-10). The other employees who went to the horse barn were white females. (Id.
at 172:4-13). White did not complain to her supervisors about having to stay back
from the horse barn. (Id. at 170:25 to 171:10). However, she mentioned the horse
barn issues in an EEOC complaint dated January 28, 2013. (White Ex. 32).
White did not point to evidence directly controverting the Defendants’ reason
for excluding her from the horse barn – she notified her superiors that she had
allergies. (Oldenburg Aff. at 6, Appendix A). This fact is deemed admitted.
3.
White’s Claims She Was Prevented from Attending a
Student’s Graduation
Taken in the light most favorable to White, Jennifer Oldenburg told her to stay
in the dormitory and clean during a student’s graduation. (White Depo. at 187:9-
28
13).26 She had cleaned the dorm the night before, and instead left work immediately.
(Id. at 189:4-15). She believes this was discriminatory because two white females got
to attend, and she was told to clean. (Id. at 189:20-22). She complained about this
incident. (Id. at 190:5-9).
4.
Request Not To Have Baby Shower During Academic
Hours
White asked to have a baby shower between 1p.m. and 3 p.m. (White Depo.,
196:7-198:5). This time period was during academic time for Awakenings students.
(Id.). White was not prevented from having the baby shower, just not at those hours.
(Id.). However, others had sent out invitations for baby showers during that time.
(White Ex. 12, 13, 14).
f.
Allegations of Disparate Compensation Pay; Overtime;
Substitute Work
1.
Disparate Compensation and Overtime Pay
White was a Dorm Teacher Aide, and Candy Newman was a Dorm Aide.
(White Depo. 234:3-10). She believes that both she and Newman were paid correctly
under the salary schedule for their respective positions. (Id. at 234:20 to 235:3).
When White moved her shift from the second shift to first shift position (also moving
26
Defendants dispute this version of events by arguing that White actually asked not to
go. (Doc. 35 at 17 ¶15); (Oldenburg Aff. at 8-9). However, the Court has viewed this and any
other properly disputed fact in the light most favorable to White, the non-movant.
29
from the Dorm Aide position to the Dorm Teacher Aide position), her pay dropped.
(Id. at 236:23 to 237:4). However, when Newman changed to the first shift her pay
remained the same and she had more overtime. (Id. at 235:11, 236:23 to 237:1-5)).
White knew, when she made the switch, that the first shift had less pay and less
opportunity for overtime. (Id. at 237:5-17). She never complained that she had less
opportunity for overtime. (Id. at 237:12-20). She also stated in her deposition that she
was paid when she worked overtime. (Id. at 236:3-11). The duties in the Dorm Aide
and Dorm Teacher Aide positions are very similar, but the Dorm Teacher Aide
position has more of an academic setting. (Id. at 34:23 to 36:7).
2.
Substitute Work at Helen Keller Cafeteria
In an email dated October 2, 2009, former Principal Dr. Erminel Trescott
requested the addition of White to the Helen Keller School and Awakenings
substitute list for Dorm Teacher Aide positions. (White Ex. 25, 26). White was
removed from the substitute list in October 2012. (White Ex. 27).27 White did not
have any communication with anyone in the cafeteria to make them aware of her
27
White’s exhibit indicates the following under the reason for removing her for the
substitute position:
IF NO, REASON:
Remove from substitute position
Primary position– Dorm Teacher Aide
(White Ex. 27).
30
desire to substitute. (White Depo., 231:5-10). She wanted to work in the cafeteria on
the weekends (when she would have been able to), but she never submitted a request
to work on the weekends. (Id. at 229:13 to 230:3).
IV.
ANALYSIS
A.
Mascia’s Motion for Sanctions is Due To Be Denied.
In his brief, “Mascia asks the Court to impose sanctions against Plaintiff and/or
her attorney for failing to dismiss him from the lawsuit.” (Doc. 35 at 11). This
argument is not sufficiently developed28 and the Court is not tempted to grant such
relief. Asking the Court to impose sanctions is something more serious than casually
putting in a request in the statement of facts. Additionally, this request for sanctions
runs directly afoul of the enumerated process in the Federal Rules of Civil Procedure.
See FED. R. CIV. P. 11(c)(2) (“A motion for sanctions must be made separately from
any other motion.”). The request for sanctions is DENIED.
B.
Atkinson’s Motion For Summary Judgment Is Due To Be Granted.
a.
Atkinson Is Entitled to Qualified Immunity Because White
Entirely Failed To Respond to Atkinson’s Arguments.
“The defense of qualified immunity completely protects government officials
performing discretionary functions from suit in their individual capacities unless their
28
Such an argument should at least be supported by legal authority.
31
conduct violates ‘clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th
Cir. 2003) (internal quotation marks omitted) (quoting Gonzalez v. Reno, 325 F.3d
1228, 1233 (11th Cir. 2003)). “To receive qualified immunity, a government official
first must prove that he was acting within his discretionary authority.” Id.
This is a two-part test. Under the first step, “the defendant must [prove that he
or she was] performing a function that, but for the alleged constitutional infirmity,
would have fallen within his legitimate job description.” Holloman ex rel. Holloman
v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). Next, the defendant must prove
that he or she was “executing that job-related function.” Id. at 1267. “Once a
defendant establishes that he was acting within his discretionary authority, the burden
shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.”
Cottone, 326 F.3d at 1358.
Until 2009, the Supreme Court had required a two-part inquiry to determine the
applicability of qualified immunity, as established by Saucier v. Katz, 533 U.S. 194,
201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). Under the Saucier test, “[t]he
threshold inquiry a court must undertake in a qualified immunity analysis is whether
[the] plaintiff’s allegations, if true, establish a constitutional violation.” Hope v.
Pelzer, 536 U.S. 730, 736, 122 S. Ct. 2508, 2513,153 L. Ed. 2d 666 (2002).
32
If, under the plaintiff’s allegations, the individual defendants would have
violated a constitutional right, “the next, sequential step is to ask whether the right
was clearly established.” Cottone, 326 F.3d at 1358 (quoting Saucier, 533 U.S. at
201, 121 S. Ct. at 2156). The “clearly established” requirement is designed to assure
that officers have fair notice of the conduct which is proscribed. Hope, 536 U.S. at
739, 122 S. Ct. at 2515. This second inquiry ensures “that before they are subjected
to suit, officers are on notice their conduct is unlawful.” Saucier, 533 U.S. at 206, 121
S. Ct. at 2158.
The “unlawfulness must be apparent” under preexisting law. Anderson
v.Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987)
(citing Malley v. Briggs, 475 U.S. 335, 344-45, 106 S. Ct. 1092, 1097-98, 89 L. Ed.
2d 271 (1986)). Therefore, a temporal requirement exists related to this inquiry. More
particularly, a plaintiff must show that a reasonable public official would not have
believed her actions to be lawful in light of law that was clearly established at the
time of the purported violation. See Anderson, 483 U.S. at 639,107 S. Ct. at 3038
(“[W]hether an official protected by qualified immunity may be held personally liable
for an allegedly unlawful official action generally turns on the ‘objective legal
reasonableness’ of the action[,] assessed in light of the legal rules that were ‘clearly
established’ at the time it was taken[.]”) (emphasis added) (citation omitted);
33
Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599, 160 L. Ed. 2d 583
(2004) (“If the law at that time did not clearly establish that the officer’s conduct
would violate the Constitution, the officer should not be subject to liability or, indeed,
even the burdens of litigation.”) (emphasis added); Brosseau, 543 U.S. at 198, 125
S. Ct. at 599 (“Because the focus is on whether the officer had fair notice that her
conduct was unlawful, reasonableness is judged against the backdrop of the law at the
time of the conduct.”) (emphasis added); see also Johnson v. Clifton, 74 F.3d
1087,1093 (11th Cir. 1996) (“We know of no [preexisting] case which might have
clearly told Clifton that he could not take the disciplinary action indicated by an
investigation which was initiated before he even knew about the allegedly protected
speech, and in circumstances where the public concern implication was doubtful.”).
However, the Saucier framework was made non-mandatory by the Supreme
Court in Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818, 172 L. Ed. 2d
565 (2009), in which the Court concluded that, “while the sequence set forth [in
Saucier] is often appropriate, it should no longer be regarded as mandatory.” Thus,
“judges of the district courts and the courts of appeals should be permitted to exercise
their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case
at hand.” Id.
34
Despite the Supreme Court’s modification of Saucier’s analytical process, the
substantive analysis remains unchanged; an officer is entitled to qualified immunity
protection as long as he “could have believed” his conduct was lawful. Hunter v.
Bryan, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589 (1991).Therefore,
to deny immunity, a plaintiff must affirmatively demonstrate that “no reasonable
competent officer would have” acted as the public official did. Malley v. Briggs, 475
U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986).
Atkinson asserts that the doctrine of qualified immunity eliminates all of
White’s claims against her. (Doc. 38 at 26-28). Atkinson asserts that she was acting
“under color of state law” and performing a discretionary function.29 (See id. at 27).
29
White alleged this in her complaint. (See Doc. 1 at ¶ 25, 26, 37). Further, in her
declaration, Atkinson stated “[a]t all relevant times, I acted within my discretionary authority in
performing my official duties though procedures I was authorized to employ.” (Doc. 39-3 at 1).
Finally, White states in her deposition:
Q.
The same is true of Atkinson in her individual capacity, she hasn’t done anything
that affected your job, did she?
A.
Correct.
Q.
Her actions that you are complaining about in this lawsuit are as an employee of
AIDB?
A.
Correct.
(White Depo., 245:15-22).
35
This means that the burden shifts to White to show that Atkinson is not entitled to
qualified immunity.
However, White failed to respond to Atkinson’s qualified immunity argument.
(See Doc. 41 at 12-24); (See also Doc. 46 at 3-4). Atkinson argues that this means
that she is entitled to qualified immunity under the Eleventh Circuit precedent from
Maldonado. (See Doc. 46 at 3-4). There, the Court stated, in relevant part:
Maldonado did not respond to the qualified-immunity defense at
all, much less provide the judge with any “controlling and materially
similar case” demonstrating the use of pepper spray to obtain
compliance with a lawful order was unconstitutional. Consequently, the
judge concluded the individual defendants were entitled to summary
judgment regarding the May 26, 2011, incident based on qualified
immunity. The judge further noted qualified immunity would bar all of
Maldonado's § 1983 claims, because of his failure to respond to that
defense.
...
The judge did not err in placing the burden on Maldonado to
overcome the qualified-immunity defense. Maldonado never disputed
the defendants were acting under their discretionary authority; therefore,
the burden was on him to demonstrate the defendants violated his clearly
established rights. See Terrell, 668 F.3d at 1250.
Maldonado v. Unnamed Defendant, 648 F. App’x 939, 951-55 (11th Cir. 2016).
In this case, Atkinson filed her Motion for Summary Judgment alleging that
qualified immunity protected her from all of White’s claims. (Doc. 38 at 26-28).
White’s response did not mention qualified immunity, much less carry her burden.
(See Doc. 41 at 12-24). Atkinson’s reply points out that White totally ignored the
36
qualified immunity arguments. (See Doc. 46 at 3-5) (“White did not respond at all to
the Defendant’s qualified immunity defense.”). Even in the face of Atkinson pointing
this out, White did not respond. The Court finds that Atkinson is entitled to qualified
immunity and GRANTS Atkinson’s Motion.
b.
The Official Capacity Claims Against
Dismissed
Atkinson Are
Atkinson argues that “[t]he claims against Atkinson in her official capacity are
. . . due to be dismissed” under Eleventh Circuit precedent. (Doc. 38 at 32-33). In
support, Atkinson cites the Eleventh Circuit’s opinion in Busby v. City of Orlando.
(Id.). That opinion states, in relevant part, the following:
In contrast to individual capacity suits, when an officer is sued
under Section 1983 in his or her official capacity, the suit is simply “
‘another way of pleading an action against an entity of which an officer
is an agent.’ ” Kentucky v. Graham, 473 U.S. at 165, 105 S.Ct. at 3105
(citing Monell v. Department of Social Servs., 436 U.S. 658, 690 n. 55,
98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978)). Such suits against
municipal officers are therefore, in actuality, suits directly against the
city that the officer represents. See id. 473 U.S. at 165–66, 105 S.Ct. at
3105. . . Consequently, a plaintiff cannot rely on a respondeat superior
theory to hold a municipality liable for individual actions of its officers.
Monell, 436 U.S. at 691, 98 S.Ct. at 2036; Hearn v. City of Gainesville,
688 F.2d 1328, 1334 (11th Cir.1982). “[A] municipality cannot be held
liable solely because it employs a tortfeasor.” Monell, 436 U.S. at 691,
98 S.Ct. at 2036 (emphasis in original). Instead, in order to recover
against a municipality, a plaintiff must establish that the alleged racial
discrimination or harassment occurred pursuant to a custom or policy of
the municipality. Id. at 694, 98 S.Ct. at 2037; Gilmere v. City of Atlanta,
774 F.2d 1495, 1503 (11th Cir.1985), cert. denied, 476 U.S. 1115, 106
37
S.Ct. 1970, 90 L.Ed.2d 654 (1986); Hearn, 688 F.2d at 1334.
Because suits against a municipal officer sued in his official
capacity and direct suits against municipalities are functionally
equivalent, there no longer exists a need to bring official-capacity
actions against local government officials, because local government
units can be sued directly (provided, of course, that the public entity
receives notice and an opportunity to respond). See Kentucky v. Graham,
473 U.S. at 166, 105 S.Ct. at 3105; Brandon v. Holt, 469 U.S. at
471–72, 105 S.Ct. at 877–78. In [plaintiff’s] action against the City of
Orlando, the district court recognized that the intended defendant was
actually the City. 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.
Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (internal footnotes
omitted).30 In Busby, the district court granted a directed verdict for the defense. See
id. at 776.
White never responded to Atkinson’s arguments on this point. (See Doc. 1224). Further, the state defendant, the Alabama Institute for the Deaf and Blind, is a
part of this case. (See Doc. 1). A suit against Defendant Atkinson in her official
capacity is really a suit against her employing entity, here the Alabama Institute for
the Deaf and Blind.
Persuaded by the Busby case, and because White ignored the argument, the
Court finds that the most appropriate course of action is to grant Atkinson’s request
30
See also this Court’s decision in Prowell v. Ala. Dep’t of Human Resources, No. 2:10CV-2993-VEH, 2012 WL 3848667, *13-14 (N.D. Ala. Sept. 5, 2012) (Hopkins, J.).
38
to DISMISS any official capacity claims against her.
c.
Conclusion
Having found that Atkinson is entitled to qualified immunity, the Court
GRANTS summary judgment in her favor on all of White’s claims.
C.
AIDB/Mascia Motion 31,32
a.
Discrimination
1.
Legal Principles
“Under McDonnell Douglas, a plaintiff establishes a prima facie case of race
discrimination under Title VII by showing: (1) he belongs to a racial minority; (2) he
was subjected to adverse job action; (3) his employer treated similarly situated
31
As an initial matter, AIDB/Mascia argue that "[t]he Court should dismiss or disregard
any claims that occurred before September 27, 2013." (Doc. 35 at 25). White's Complaint states
that "[t]his action arises out of the illegal and discriminatory treatment of Mrs. Nekita White
between September 27, 2013, to present." (Doc. 1 at 1); (see also Doc. 35 at 25). AIDB/Mascia
cite to no on-point, controlling case law in support. The Court declines to disregard the incidents
occurring before September 27, 2013. Further, there is some authority indicating that a Court
may consider conduct outside the scope of a complaint. C.f. Turlington v. Atlanta Gas Light Co.,
135 F.3d 1428, 1436 (11th Cir. 1998) (“[A] plaintiff can use evidence of time-barred
discriminatory conduct to meet his burden of persuasion in a case involving circumstantial
evidence of discrimination.”).
32
The Court notes that Mascia did not raise the defense of qualified immunity in his
Motion for Summary Judgment or supporting brief. (See Doc. 34); (Doc. 35). In the AIDB/Macia
reply, they "incorporate the applicable grounds, defenses, and legal authorities submitted by
co-Defendant Christy Atkinson." (Doc. 44). Conceivably Mascia could be raising a qualified
immunity defense. However, he did not mention the doctrine by name, cite any legal authority,
cite to support in the record, develop an argument, or state it in his original brief. The Court does
not find that this belated incorporation-by-reference has fairly raised a qualified immunity
defense, and so it proceeds to evaluate the summary judgment motion based on the developed
arguments.
39
employees outside his classification more favorably; and (4) he was qualified to do
the job.” Holifield v. Reno, 115 F.2d 1555, 1562 (11th Cir. 1997) (citing other
sources).33 “Demonstrating a prima facie case is not onerous; it requires only that the
plaintiff establish facts adequate to permit an inference of discrimination.” Id. (citing
other sources).
Where, as in this case, a plaintiff has no “direct evidence,”
circumstantial evidence of employment discrimination is evaluated
under the McDonnell Douglas framework. Bass v. Bd. of County
Comm'rs, 256 F.3d 1095, 1103–04 (11th Cir.2001). Under it, the
plaintiff must first establish a prima facie case of discrimination. “Once
the plaintiff has made out a prima facie case of discrimination, the
employer must articulate some legitimate, non-discriminatory reason
for the [employment action].” Id. at 1104. If the employer meets this
burden of production, the presumption of discrimination is eliminated
and the plaintiff must then establish that each of the defendant's
proffered reasons is pretextual. Id.
In order to show pretext, the plaintiff must “demonstrate that the
proffered reason was not the true reason for the employment decision
.... [The plaintiff] may succeed in this either directly by persuading the
court that a discriminatory reason more likely motivated the employer
or indirectly by showing that the employer's proffered explanation is
unworthy of credence.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S.
248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). “[A] plaintiff
withstands summary adjudication by producing sufficient evidence to
allow a reasonable finder of fact to conclude that the defendant's
articulated reasons for its decision are not believable.” Howard v. BP
33
Further, “the McDonnell Douglas formulation of the parties' burdens applies to section
1983 racial discrimination claims as well as to Title VII claims.” See Busby, 931 F.2d at 777. The
McDonnell/Burdine framework applies in § 1981 cases as well. See Flournoy v. CML-GA WB,
LLC, 851 F.3d 1335, 1339 (11th Cir. 2017) (citing Brown v. Am. Honda Motor Co., Inc., 939
F.2d 946, 949 (11th Cir. 1991).
40
Oil Co., 32 F.3d 520, 526 (11th Cir.1994) (citing St. Mary's Honor Ctr.
v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). In
evaluating a summary judgment motion, “[t]he district court must
evaluate whether the plaintiff has demonstrated such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.” Combs v. Plantation
Patterns, 106 F.3d 1519, 1538 (11th Cir.1997) (internal quotations and
citations omitted).
Jackson v. State of Ala. State Tenure Com’n, 405 F.3d 1276, 1289 (11th Cir. 2005);
see also Ezell v. Wynn, 802 F.3d 1217, 1226-27 (11th Cir. 2015). “A plaintiff is not
allowed to recast an employer's proffered nondiscriminatory reasons or substitute his
business judgment for that of the employer. Provided that the proffered reason is one
that might motivate a reasonable employer, an employee must meet that reason head
on and rebut it, and the employee cannot succeed by simply quarreling with the
wisdom of that reason.” Chapman v. Al Transport, 229 F.3d 1012, 1030 (11th Cir.
2000);34 see also King v. Ferguson Enterprises, Inc., 971 F. Supp. 2d 1200, 1218
(N.D. Ga. 2013).
2.
Analysis
AIDB/Mascia argue that “[White] asks the Court to find discrimination because
she was black or if the person who [was selected] was black, because she was a
34
Though the Chapman case was about the Americans with Disability Act and the Age
Discrimination in Employment Act, this statement of law has been cited favorably in Title VII
cases. See Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1265-66 (11th Cir. 2010).
41
female, or if the person selected was a black female, because she was being retaliated
against.” (Doc. 35 at 27). Additionally, AIDB/Masica proffer reasons why others
were hired for the four job coach positions and the one bus guide position.35 (Id. at
28-29). Of the five positions, AIDB hired two African-American females and two
Caucasian females. (Id.). AIDB/Mascia never filled one position, arguing the position
was ultimately unneeded. (Id. at 29).36
For the June 13, 2014, job coach position, White was unaware of much of the
eventual hire’s qualifications. (White Depo., 114-116). White claims she was not
hired for retaliatory reasons, not discrimination. (Id. at 115).
For the June 22, 2015, job coach position, AIDB/Mascia hired “[Nephateria]
Jones, an African-American female, with a Master’s degree, and college transition
program experience.” (Doc. 35 at 28); (see also Challender Aff. at 10). In her
deposition, White claimed that Jones was both overqualified and under-qualified.
(White Depo., 122-23).37
35
AIDB/Mascia note that this position was posted twice, but there was ultimately only
one position. (Doc. 35 at 29).
36
White expressed the opinion that this position was not filled for retaliatory reasons, not
discriminatory. (Doc. 36-1 at 115-59).
37
White stated at one point, “I know she was over qualified.” (White Depo. at 122). She
then also stated, “She didn’t get any of her qualifications for sign language and CPR’s, CDL’s.”
(Id. at 123).
42
For the August 6, 2015, Job Coach position, AIDB/Mascia hired “Shametra
Miller, an African-American female, with a college degree and a Master’s degree. .
. Miller had worked with Talladega College as a Skill Enhancement faculty member.”
(Doc. 35 at 28); (see also Challender Aff. at 11). White believes that Miller was
overqualified. (White Depo., 137).38
The August 23, 2016, job coach position was never filled. (Doc. 35 at 28).
AIDB/Mascia offer an affidavit from the Principal Ware, an African-American
female, to explain that the position was unneeded. (Doc. 35 at 29); (see also Ware
Aff. at 1-2).
The bus guide position was filled by a Caucasian female who was already
working as a bus guide but merely “wanted a shorter route home.” (Doc. 35 at 29);
(see also White Depo., 151).
White argues “that there is no direct evidence [of] discrimination but there is
circumstantial evidence of discriminatory intent.” (Doc. 40 at 25). She argues that
“she meets all the requirements for a prima facie case of race and sex discrimination.”
(Id. at 27). She argues that she is an “African American female” who suffered from
“adverse job action[s]” in favor of “similarly situated employees outside her
38
White notes that, after a year, Miller was promoted within the AIDB. (White Depo. at
137).
43
classification.” (Id.). In her response, White only makes discrimination arguments
regarding the positions eventually given to Lizik and Newman. (Id. at 25-28).39
In this case, AIDB/Mascia gave plausible explanations for why they choose
other candidates over White. White has not adequately rebutted these explanations.
She has not set forth “sufficient evidence to find that the employer's asserted
justification is false.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148
(2000). White merely concludes in her response that she is more qualified. (Doc. 40
39
Since, White has only decided to respond to those two job hiring decisions, the Court
concludes that White is not contesting any other potential claims of discrimination. In other
words, if White had really wanted to argue that there were other claims of discrimination than
just two claims, she would have mentioned them. The Court only considers the arguments
actually presented:
The district court did not consider that argument because it was not fairly
presented. Only one sentence in Smith's 116-page petition for a writ of habeas
mentioned the possibility of inter-claim cumulative analysis and no authority was
cited for it. Smith did not even allude to the argument in his combined 123-page
memoranda of law in support of his petition. That is not adequate presentation of
the issue. See United States v. Massey, 443 F.3d 814, 819 (11th Cir.2006) (an
issue was not adequately presented unless it was raised in a way that the district
court could not misunderstand it); United States v. Dunkel, 927 F.2d 955, 956 (7th
Cir.1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”); cf.
Flanigan's Enters. Inc. v. Fulton County, 242 F.3d 976, 987 n. 16 (11th Cir.2001)
(holding that an argument was waived because the appellants “fail[ed] to elaborate
or provide any citation of authority in support of” the argument in their brief).
Because the issue or argument was not properly presented to the district court, we
will not decide it. See Johnson v. United States, 340 F.3d 1219, 1228 n. 8 (11th
Cir.2003) (“Arguments not raised in the district court are waived.”); Hurley v.
Moore, 233 F.3d 1295, 1297-98 (11th Cir.2000); Nyland v. Moore, 216 F.3d
1264, 1265 (11th Cir.2000); Redwing Carriers, Inc. v. Saraland Apartments, 94
F.3d 1489, 1511 n. 30 (11th Cir.1996); Walker v. Jones, 10 F.3d 1569, 1572 (11th
Cir.1994).
Smith v. Sec., Dep’t of Corrections, 572 F.3d 1327, 1352 (11th Cir. 2009).
44
at 27-28). White can certainly believe that she is a better candidate than the ones
chosen. See Jones v. University of North Ala., No. 3:15-cv-01712-AKK, 2017 WL
476540, *5 (N.D. Ala. Feb. 6, 2017) (Kallon, J.) (“Jones certainly has every right to
believe he was overqualified and the best candidate for the position.”). “However, the
selections officials believed otherwise and have explained why they ranked other
candidates higher than [the plaintiff].” Id. It is not this Court’s job to second guess
these decisions. See id. (citing Kidd v. Mando Am. Corp., 731 F.3d 1196, 1207 (11th
Cir. 2013)).
For the aforementioned reasons, the Court GRANTS summary judgment in
favor of AIDB/Mascia on White’s discrimination claims.
b.
Retaliation
1.
Legal Principles
“Retaliation against an employee who engages in statutorily protected activity
is barred under . . . Title VII . . . .” Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d
1249, 1257-58 (11th Cir. 2012). The Supreme Court originally established the basic
allocation of burdens and order of proof in a Title VII disparate treatment case based
upon circumstantial (as opposed to direct) evidence in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
Under the McDonnell Douglas model, a plaintiff first has the burden of proving
45
by a preponderance of evidence a prima facie case of retaliation. Within the Eleventh
Circuit:
A plaintiff establishes a prima facie case of retaliation by showing that:
(1) she “engaged in statutorily protected activity”; (2) she “suffered a
materially adverse action”; and (3) “there was a causal connection
between the protected activity and the adverse action.” Howard v.
Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010); accord Davis v.
Coca–Cola Bottling Co. Consol., 516 F.3d 955, 978 n.52 (11th Cir.
2008).
Gate Gourmet, 683 F.3d at 1258.40
i.
First Element – Protected Activity
Concerning the first element, statutorily protected activity triggering coverage
under Title VII’s antiretaliation provision comes in two forms – opposition-based or
participation-based conduct. More specifically, “[a]n employee is protected from
discrimination if (1) ‘he has opposed any practice made an unlawful employment
practice by this subchapter’ (the opposition clause) or (2) ‘he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter’ (the participation clause).” Clover v. Total Sys. Servs.,
Inc., 176 F.3d 1346, 1350 (11th Cir. 1999) (on petition for rehearing) (citing 42
U.S.C. § 2000e-(3)(a)).
40
Davis (which Gate Gourmet relies upon) was abrogated on other grounds by Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007), as stated in Vibe Micro, Inc. v. Shabanets, 878 F.3d
1291, 1294 (11th Cir. 2018).
46
Concerning the opposition clause more specifically:
[A] plaintiff can establish a prima facie case of retaliation under the
opposition clause of Title VII if he shows that he had a good faith,
reasonable belief that the employer was engaged in unlawful
employment practices. See Rollins v. State of Fla. Dept. of Law
Enforcement, 868 F.2d 397, 400 (11th Cir. 1989). It is critical to
emphasize that a plaintiff’s burden under this standard has both a
subjective and an objective component. A plaintiff must not only show
that he subjectively (that is, in good faith) believed that his employer
was engaged in unlawful employment practices, but also that his belief
was objectively reasonable in light of the facts and record presented. It
thus is not enough for a plaintiff to allege that his belief in this regard
was honest and bona fide; the allegations and record must also indicate
that the belief, though perhaps mistaken, was objectively reasonable.
A plaintiff, therefore, need not prove the underlying
discriminatory conduct that he opposed was actually unlawful in order
to establish a prima facie case and overcome a motion for summary
judgment; such a requirement “[w]ould not only chill the legitimate
assertion of employee rights under Title VII but would tend to force
employees to file formal charges rather than seek conciliation o[r]
informal adjustment of grievances.” Sias v. City Demonstration Agency,
588 F.2d 692, 695 (9th Cir. 1978). See also Payne v. McLemore’s
Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. Unit A Sept.
1981) (“To effectuate the policies of Title VII and to avoid the chilling
effect that would otherwise arise, we are compelled to conclude that a
plaintiff can establish a prima facie case of retaliatory discharge under
the opposition clause of [Title VII] if he shows that he had a reasonable
belief that the employer was engaged in unlawful employment
practices.”), cert. denied, 455 U.S. 1000, 102 S. Ct. 1630, 71 L. Ed. 2d
866 (1982).
Little v. United Technologies, 103 F.3d 956, 960 (11th Cir. 1997) (emphasis by
underlining added) (alteration added to correctly quote from Sias) (footnote omitted).
47
Regarding the broad coverage afforded under Title VII’s participation clause,
the Eleventh Circuit has explained:
Congress chose to protect employees who “participate[ ] in any manner”
in an EEOC investigation. 42 U.S.C. § 2000e-3(a) (emphasis added).
The words “participate in any manner” express Congress’ intent to
confer “exceptionally broad protection” upon employees covered by
Title VII. See Pettway v. American Cast Iron Pipe Co., 411 F.2d 998,
1006 n.18 (5th Cir. 1969). As we pointed out in Merritt v. Dillard Paper
Co., 120 F.3d 1181, 1186 (11th Cir. 1997), “the adjective ‘any’ is not
ambiguous. . . . [It] has an expansive meaning, that is, one or some
indiscriminately of whatever kind. . . . [A]ny means all.” (internal
quotations and citations omitted). Because participation in an
employer’s investigation conducted in response to a notice of charge of
discrimination is a form of participation, indirect as it is, in an EEOC
investigation, such participation is sufficient to bring the employee
within the protection of the participation clause.
Clover, 176 F.3d at 1353.
ii.
Second Element – Materially Adverse Action
As defined by the United States Supreme Court in Burlington Northern, a
materially adverse action is one that is “harmful to the point that [it] could well
dissuade a reasonable worker from making or supporting a charge of discrimination.”
Burlington Northern, 548 U.S. at 57; see also Gate Gourmet, 683 F.3d. at 1259
(same); id. at 1260 (finding material adversity in an employer’s decision to deny a
light-duty position to the plaintiff after she filed and refused to settle an EEOC
charge). A materially adverse action can arise within or without the workplace. See
48
Burlington Northern, 548 U.S. at 57 (“[T]he antiretaliation provision does not confine
the actions and harms it forbids to those that are related to employment or occur at the
workplace.”).
iii.
Third Element – Causal Connection
The third element requires proof of a causal connection between the plaintiff’s
protected activity and the materially adverse action. As a divided Supreme Court held,
Title VII retaliation requires proof of customary but-for causation, rather than the less
burdensome motivating-factor standard applicable to Title VII discrimination claims:
Based on these textual and structural indications, the Court now
concludes as follows: Title VII retaliation claims must be proved
according to traditional principles of but-for causation, not the lessened
causation test stated in § 2000e-2(m). This requires proof that the
unlawful retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.
Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (emphasis added);
cf. id. at 343 (“An employee who alleges status-based discrimination under Title VII
need not show that the causal link between injury and wrong is so close that the injury
would not have occurred but for the act.”); id. (“It suffices instead to show that the
motive to discriminate was one of the employer’s motives, even if the employer also
had other, lawful motives that were causative in the employer’s decision.”).
“At a minimum, a plaintiff must generally establish that the employer was
49
actually aware of the protected expression at the time it took adverse employment
action. The defendant’s awareness of the protected statement, however, may be
established by circumstantial evidence.” Goldsmith v. City of Atmore, 996 F.2d 1155,
1163 (11th Cir. 1993) (citations omitted).
iv.
Post-Prima Facie Case Considerations
Once a plaintiff establishes a prima facie case of retaliation, the burden of
production shifts to the defendant to articulate a legitimate, nondiscriminatory reason
for its employment decision. If the defendant carries its burden of production, “[t]o
survive summary judgment, the employee must come forward with evidence
sufficient to permit a reasonable fact finder to conclude that the legitimate reasons
given by the employer were not its true reasons, but were a pretext for discrimination
[or retaliation].” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir.
2005) (citing Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000));
see also Reeves, 530 U.S. at 148 (“[A] plaintiff’s prima facie case, combined with
sufficient evidence to find that the employer’s asserted justification is false, may
permit the trier of fact to conclude that the employer unlawfully discriminated [or
retaliated].”).
A plaintiff can prove pretext by showing “such weaknesses, implausibilities,
inconsistencies, incoherencies or contradictions in the employer’s proffered
50
legitimate reasons for its actions that a reasonable factfinder could find them
unworthy of credence.” Vessels, 408 F.3d at 771 (internal quotation marks omitted)
(quoting Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004), overruled on
other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006)).
2.
Analysis
AIDB/Mascia argue that “[White’s] prima facie case fails because she can
establish no causal connection between her EEOC charges and the decisions made to
promote better qualified people.” (Doc. 35 at 29). They point to the substantial delay
in time between the EEOC complaint and the relevant actions. (See id. at 30).
In this case, there are three EEOC complaints. The first was filed on April 9,
2012. (White Ex. 11). The second was filed on January 28, 2013. (Id.). The last was
filed on April 21, 2014. (Id.). The Eleventh Circuit has indicated that “[a] three to
four month disparity between the statutorily protected expression and the adverse
employment action is not enough.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,
1364 (11th Cir. 2007). Here, White’s retaliation claim falls short because she cannot
establish that it was the “but for” causation of the employment actions. She has not
shown the Court that temporal proximity works in her favor or that there is other
evidence of retaliation. (See Doc. 40 at 28-30) (failing to address temporal proximity).
51
She has not established her prima facie case.41 Even if she had, the Court previously
discussed how the Defendants articulated reasons for hiring others over her, i.e. the
other applicants are more qualified. White does little more than assert that the
Defendants’ reasons are pretext without showing why. (See Doc. 40 at 28-30).
Further, White argues that she was retaliated against when she was not given
overtime pay and was taken off “the substitute employee list in October 2012.” (See
Doc. 40 at 29-30). However, once again, White has not shown the “but for” element
of causation to survive summary judgment on her retaliation claim. October 2012 is
more than three months from the then most recent EEOC complaint (filed on April
9, 2012). Further, White has not shown that the articulated reason for AIDB/Mascia
not to give her overtime pay was pretext, given that she moved to a shift in which she
knew overtime was scarce and was taken off a substitute employee list because her
primary shift conflicted with the job (and she never requested to work on the
weekends).
Additionally, White cites to the graduation and baby shower disputes as
evidence of retaliation. (Doc. 40 at 30). However, to prove an adverse action “a
41
Even if she had, AIDB/Mascia have set forward legitimate reasons for the employment
hiring actions taken, as this opinion has previously explained on pages 14-27. Even if White had
not filed her EEOC claim, AIDB/Mascia still would have taken the same employment action.
White has not provided evidence or developed arguments showing otherwise.
52
plaintiff must show that a reasonable employee would have found the challenged
action materially adverse, ‘which in this context means it well might have ‘dissuaded
a reasonable worker from making or supporting a charge of discrimination.’’”
Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting
another source). “An employee's decision to report discriminatory behavior cannot
immunize that employee from those petty slights or minor annoyances that often take
place at work and that all employees experience.” Id. (citing another source). “[T]he
employment action must be materially adverse as viewed by a reasonable person in
the circumstances.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir.
2001).42 Here, a reasonable jury cannot conclude that being told to wait a few hours
to have a baby shower, or to remain in a classroom and perform job related tasks, is
such an adverse action such that it is a “serious and material change in the terms,
conditions, or privileges of employment.”43
Next, as White notes in her brief, no one has filled the job position posted on
42
“Materially adverse actions are those that ‘might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.’” See Smith v. City of Fort Pierce, Fla.,
565 F. App’x 774, 777-78 (11th Cir. 2014) (quoting another source). In Smith, the court
determined that “glaring, slamming a door in an employee's face, inquiring into retirement plans,
commenting that an employee is not a team player, blaming an employee for failed union
negotiations, or harboring concerns over an employee's dependability and trustworthiness are not
actions that would dissuade a reasonable worker from making or supporting a charge of
discrimination.” See id. at 778.
43
This language comes from Davis. See Davis, 245 F.3d at 1239.
53
August 23, 2016. (Doc. 40 at 30). However, she has failed to establish but-for
causation here. This date is well over three months from her then most recent EEOC
complaint (April 21, 2014). In fact, it is over two years later. Even if she did prove
causation, she has not overcome Defendants’ stated reason for not filling the position
– a new principal came in and determined the position was unnecessary. (Ware Aff.
at 2). White calls this pretext, but does not explain why it is pretext. (See Doc. 40 at
30).
Finally, the Court addresses White’s allegations of retaliation through disparate
compensation. (See Doc. 40 at 29-30).44 This too does not get past summary
judgment.45 White has not met her prima facie burden. For one thing, it is not clear
44
White only argues disparate compensation in her response to retaliation. (See Doc. 40 at
25-28). Disparate compensation was not fairly raised under Count I of the Complaint. (See Doc.
1 at 7-9). The Court also notes that disparate compensation was not raised in Count II
(retaliation) either, as Count II uses an impermissible form of pleading (simply re-alleging the
entire Complaint). (Id. at 10-11).
45
The Court sees no evidence that Mascia was involved in this decision regarding
White’s pay. She discusses him only in the context of the hiring decisions. (See generally Doc.
40). Further, White failed to cite to any record evidence to dispute Mascia’s fact that read:
Plaintiff admits that she has no factual basis to support a charge of discrimination
against Mascia as President of AIDB or in his individual capacity.
(Ex. 2, pp. 3-5).
(Doc. 35 at 10 ¶46). White also said in her deposition:
Q.
Are you contending that Dr. Mascia as president took action on engaged in
conduct in retaliation against you because you had filed EEC [sic]
complaints?
54
who the decision maker regarding the pay issue was. Additionally, it is not clear when
her pay was actually docked, and White has made no argument that it was temporally
close to an EEOC complaint or that other evidence supports a showing of causation.
Even if she had fairly raised disparate compensation and met her prima facie burden,
White calls the other employee “her direct counter-part,” but does not adequately
explain why she is an appropriate comparator.
For the aforementioned reasons, the Court GRANTS summary judgment on
White’s retaliation claims.
c.
Harassment and Hostile Work Environment
1.
Legal Principles
A plaintiff establishes a hostile work environment claim by
showing “(1) that he belongs to a protected group; (2) that he has been
subject to unwelcome harassment; (3) that the harassment ... [was] based
on a protected characteristic of the employee ...; (4) that the harassment
was sufficiently severe or pervasive to alter the terms and conditions of
employment and create a discriminatorily abusive working environment;
and (5) that the employer is responsible for such environment under
A.
No, sir.
...
Q.
Do you have any factual basis to believe that Dr. Mascia knew anything
specifically about Nekita White, an employee of AIDB?
A.
No, sir.
(White Depo., 224:12-17 and 226:1-5).
55
either a theory of vicarious or of direct liability.” Miller v. Kenworth of
Dothan, 277 F.3d 1269, 1275 (11th Cir.2002). The fourth element,
whether the conduct was “sufficiently severe or pervasive to alter the
conditions of employment and create an abusive working environment,”
is the element that often tests the legitimacy of most harassment claims;
and that test is true here. Gupta v. Fla. Bd. Of Regents, 212 F.3d 571,
583 (11th Cir.2000).
To establish that harassing conduct was severe or pervasive, an
employee must meet both a subjective and objective test. See Mendoza
v. Borden, 195 F.3d 1238, 1246 (11th Cir.1999). The employee must
establish not only that he subjectively perceived the environment as
hostile, but that a reasonable person would perceive the environment to
be hostile and abusive. See Watkins v. Bowden, 105 F.3d 1344, 1355-56
(11th Cir.1997). . . . Only when the workplace is “permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the employment and create
an abusive working environment,” is the law violated. Harris, 114 S.Ct.
at 370 (internal quotations and citations omitted).
Barrow v. Georgia Pacific Corp., 144 F. App’x 54, 56 (11th Cir. 2005). “In
evaluating the objective severity of the alleged hostile work environment, we consider
‘(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the
conduct is physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonably interferes with the employee's job
performance.’” Corbett v. Beseler, 635 F. App’x 809, 816 (11th Cir. 2015) (citing
Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc)).
2.
Analysis
AIDB/Mascia refer to White’s four alleged incidents and say that they are
56
“insufficiently severe or pervasive to alter the terms and conditions of [White’s]
employment and create an abusive working environment.” (Doc. 35 at 31-32) (citing
Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998); Gupta v. Fla. Bd. of
Regents, 212 F.3d 571, 583 (11th Cir. 2000)). Those four incidents, according to
Defendants, are:
1. Defendants asked Plaintiff to write a statement of fact describing what
happened when she administered the wrong medicine to a student. The
incident had serious implications in that the student was sent to the
emergency room. It took Plaintiff five minutes to write the report.
Plaintiff was not reprimanded for this incident. (Ex. 3, p. 6; Ex. 1,
232:2).
2. Defendants asked Plaintiff not to schedule a baby shower during
academic class time, but to do so after 3 p.m. when the baby shower
would not interfere with academic classes. (Ex. 1, P. 196:21-198:5).
3. Plaintiff was not asked to drive students to the Equestrian Center for
hippo therapy. After Plaintiff told Defendants being around horses
aggravated her allergies. Defendants respected her request not to send
her to the horse barn. (Ex. 4, pp. 8-9).
4. Plaintiff complains that the tone of an email from the Principal of
Helen Keller School, Christie Atkinson, was hostile. The email
responded to Plaintiff’s question why did she need to write a report
about administering wrong medicine to a student. Atkinson said
because she was asked to do by Vice President Freida Meacham. (Ex. 1,
181:26-184:6).
(Doc. 35 at 31).46 White also stated the following in her deposition:
46
This is what the Defendants argue, but obviously, the Court views all properly disputed
facts in the light most favorable to White.
57
Q.
How do you claim that you have been subjected to a hostile
environment at work?
A.
The tone of the emails, being treated unfair and not equal to the
rest of the employees, being isolated to stay in the dorm with one
child, not being able to go to the graduation, not being promoted
or transferred to a different position.
(White Depo., 181: 16-23).
White never responded to the AIDB/Mascia Motion on Count III. (See
generally Doc. 40). White responded to the discrimination claim in the first section
of her argument (id. at 25-28) and to the retaliation claim (id. at 28-30), but for some
reason passed over her harassment and hostile work environment claim. Perhaps
White never intended to bring Count III against AIDB/Mascia at all. The Complaint
runs dangerously close, if it is not already there, to being a shotgun complaint.47
47
This Court has previously defined a shotgun complaint:
“The typical shotgun complaint contains several counts, each one incorporating by
reference the allegations of its predecessors, leading to a situation where most of the
counts (i.e., all but the first) contain irrelevant factual allegations and legal
conclusions.” Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305
F.3d 1293, 1295 (11th Cir. 2002). Another confusing aspect of many shotgun
complaints is the practice of lumping multiple claims and/or multiple defendants
together within the same count or counts. A complaint that contains shotgun
characteristics make it “ ‘virtually impossible to know which allegations of fact are
intended to support which claim(s) for relief’ ... [and] does not comply with the
standards of Rules 8(a) and 10(b).” LaCroix v. W. Dist. of Kentucky, 627 Fed.Appx.
816, 818 (11th Cir. 2015), cert. dismissed sub nom. LaCroix v. U.S. Dist. Court for
W. Dist. of Kentucky, 136 S. Ct. 996, 194 L.Ed. 2d 2 (2016) (quoting Anderson v.
Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996)).
Zanaty v. Wells Fargo Bank, N.A., No. 2:16-CV-0277-VEH, 2016 WL 6610443, *2 (N.D. Ala.
58
This Court has previously stated:
“Courts are not obligated to read a party's mind or to construct
arguments that it has failed to raise and that are not reasonably presented
in the court file.” Jones v. Pilgrim's Pride, Inc.[,] 741 F.Supp.2d 1272,
1275 (N.D.Ala.,2010) (citing Resolution Trust Corp. v. Dunmar Corp.,
43 F.3d 587, 599 (11th Cir.1995) (“There is no burden upon the district
court to distill every potential argument that could be made based upon
the materials before it ....”); also citing Higgins v. New Balance Athletic
Shoe, Inc., 194 F.3d 252, 260 (1st Cir.1999) (declaring that a “party who
aspires to oppose a ... motion must spell out his arguments squarely and
distinctly, or else forever hold his peace,” as district court may ignore
arguments not adequately developed by nonmovant)).
Lynn v. Fort McClellan Credit Union, No. 1:11-CV-2904, 2013 WL 5707372, *7
(N.D. Ala. Oct. 21, 2013) (Hopkins, J.). Certainly it follows that the Court cannot
concoct a different pleading than the one White filed.
The Complaint is not clear to which of the defendants Count III applies. (See
Doc. 1 at 11-13). Paragraph 42 of the Complaint merely re-alleges every previous
paragraph, and so it is entirely unhelpful to the Court. (Id. at ¶42). Paragraph 43 then
describes the actions of Defendant Atkinson regarding hiring Katie Trotter for an
open job coach position. (Id. at ¶43). There is no paragraph 44 or 45, despite the
Complaint having a paragraph 46. (See id. at 11-12). Paragraph 46 is fairly
conclusory. (Id. at ¶46). Paragraph 47 talks about “Defendant’s agents” and the plural
“Defendants” but is not much more specific than that. (Id.). In the request for relief,
Nov. 9, 2016) (Hopkins, J.).
59
White asks for judgment against the, now singular, “Defendant.” (Id. at 12-13).
Given that the Complaint does not clearly raise Count III against AIDB/Mascia
(in fact, it asks for relief against only one defendant) and that White never responded
to AIDB/White’s Motion for Summary Judgment on Count III,48 the Court could
interpret the Complaint to have never raised a claim against AIDB/Mascia under
Count III in the first place.
However, even construing the Complaint to have raised a harassment/hostile
work environment claim against AIDB/Mascia, the evidence proffered is insufficient,
viewed in the light most favorable to White, to find that a reasonable jury could
determine this to be an abusive work environment. Filling out a written statement of
facts following a medical emergency, not having a baby shower when others were
permitted to, not going to visit the horsebarn, and the tone of an email49 do not rise
to the level of severity required. This is so considering the case as a whole, not just
48
White did respond to Atkinson’s Motion on Count III. (See Doc. 41 at 21-24).
49
The Court notes that it was not enough in Corbett when the plaintiff showed sporadic
comments where she was called “‘bossy,’ ‘bitchy,’ ‘abrasive,’ ‘dumb,’ and a ‘stupid fucking
bitch.’” See Corbett, 635 F. App’x at 816. Atkinson’s email to White regarding the medical
emergency stated:
Because my supervisor, Frieda Meachem said for you to do so. Therefore, I am
giving you a directive to write down the details of what occurred. Thank you in
advance.
(White Ex. 17). No reasonable jury could find this email an example of extreme conduct.
60
the four incidents the Defendants discussed. “Title VII is not a general civility code.”
Corbett, 635 F. App’x at 816. At most, the evidence in this case shows an issue of
“personal animosity,” and falls well short of extreme conduct.
For that reason, the Court GRANTS summary judgment in favor of
AIDB/Mascia on the harassment/hostile work environment claim.
V.
CONCLUSION
In conclusion, the Court takes the following actions regarding Defendant
Atkinson:
•
Defendant Atkinson’s Motion To Strike is DENIED.
•
Defendant Atkinson is entitled to QUALIFIED IMMUNITY on all
claims against her in her individual capacity.
•
All claims against Defendant Atkinson, in her individual or in her
official capacity, are DISMISSED.
The Court takes the following actions regarding Defendant AIDB/Mascia:
•
Defendant AIDB/Mascia’s Motion To Strike is DENIED.
•
Defendant Mascia’s request for sanctions is DENIED.
•
The Court GRANTS summary judgment in favor of AIDB and Mascia
on all claims.
The Court will enter the appropriate final order.
61
DONE and ORDERED this the 28th day of February, 2018.
VIRGINIA EMERSON HOPKINS
United States District Judge
62
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