Gaddis v. Alabama Institute for the Deaf and Blind et al
Filing
57
MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 9/13/19. (MRR, )
FILED
2019 Sep-13 AM 09:46
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
STEPHANIE GADDIS,
Plaintiff,
v.
ALABAMA INSTITUTE FOR THE
DEAF AND BLIND, et al.,
Defendants.
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Case No.: 1:16-cv-01881-SGC
MEMORANDUM OPINION1
This matter is before the court on the motions for summary judgment filed
by Defendants, Alabama Institute for the Deaf and Blind (“AIDB”), John Mascia,
and Christy Atkinson. (Docs. 44, 46). These motions are fully briefed and ripe for
adjudication. (Docs. 45, 47-52, 54F-55). Also pending is Mascia and Atkinson’s
motion to strike certain evidence on which Plaintiff, Stephanie Gaddis, relies;
Plaintiff has not responded to this motion. (Doc. 53). As explained below, the
motion to strike is due to be granted in part, and the motions for summary
judgement are due to be granted in their entirety.
I.
PROCEDURAL HISTORY
The operative complaint is the third amended complaint.
Plaintiff asserts three claims against Defendants.
1
(Doc. 37).
Count I alleges disparate
The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).
(Doc. 15).
treatment under Title VII and 42 U.S.C. § 1983. (Id. at 13-15). Count II alleges
retaliation and also invokes Title VII and § 1983. (Id. at 15-18). Count III is
entitled “Retaliation and Hostile Work Environment.” (Id. at 18-21).
All claims are asserted against AIDB, as well as Mascia and Atkinson in
their individual and official capacities.
Accordingly, one group of attorneys
represents AIDB and Mascia in his official capacity. (See Doc. 46). Separate
counsel represents Mascia and Atkinson with regard to the remaining claims. (See
Doc. 44).2 Plaintiff responded separately to each motion for summary judgment
(Docs. 48, 49) but also filed amended responses (Docs. 50, 51). The amended
responses attach fewer exhibits, but the substance of the briefs appear to be the
same, save the amended response to Mascia and Atkinson’s motion; Plaintiff’s
amended response omits the final page of her brief. (Compare Doc. 48 with Doc.
50).
In any event, the undersigned assumes Plaintiff intended the amended
responses to supplant her original responses, and this opinion analyzes the
arguments and evidence presented in Plaintiff’s amended responses.
II.
STANDARD OF REVIEW
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
2
The motions for summary judgment rely on the same evidence, and Defendants have submitted
a joint evidentiary submission. (Doc. 43).
2
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party asking for 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 which it believes demonstrate the absence of a genuine issue of
material fact. Id. at 323. Once the moving party has met its burden, Rule 56(e)
requires the non-moving party to go beyond the pleadings and by his own
affidavits, or by the depositions, answers to interrogatories, and admissions on file,
designate specific facts showing there is a genuine issue for trial. See id. at 324.
The substantive law identifies which facts are material and which are
irrelevant. See 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
of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.
1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the
evidence is merely colorable, or is not significantly probative, summary judgment
may be granted. See id. at 249.
III.
FACTS
AIDB is the official state agency designated to conduct educational and
training programs for deaf, hearing impaired, blind, and visually handicapped
3
Alabamians. ALA. CODE § 21-1-23; see Tuck v. Alabama Inst. for Deaf & Blind,
No. 17-0394-ACA, 2019 WL 398702, at *1 (N.D. Ala. Jan. 31, 2019). AIDB runs
the Helen Keller School (“HKS”), which teaches deaf, blind, and multihandicapped students. (See Doc. 47 at 2). AIDB has employed Plaintiff, an
African American female, as a teacher for over thirty years. (Doc. 51 at 2; Doc. 37
at 5). For almost all of that time, Plaintiff taught at HKS, where she continues to
teach. (Doc. 51 at 2; Doc. 43-1 at 4).
Mascia has been employed by AIDB since January 2005, and has served as
AIDB’s President since January 2013. (Doc. 43-3 at 2). Prior to becoming
President, Mascia had no supervisory authority over Plaintiff and was not involved
in any decisions affecting her employment. (Id.). As President of AIDB, Mascia
does not have authority to hire, suspend without pay, or terminate any employee.
(Id. at 3). Rather, under Alabama law, Mascia’s authority is limited to making
recommendations to AIDB’s Board of Trustees; the Board of Trustees is not bound
by those recommendations. (Id.). Atkinson was employed by AIDB from July 1,
2011, through August 26, 2015; during this time she served as the Principal of
HKS. (Doc. 43-4 at 2). As Principal, Atkinson did not have authority to hire,
transfer, promote, or suspend any employee. (Id.). Instead, Atkinson’s authority
was limited to making recommendations on these matters. (Id. at 2-3).
4
On August 19, 2014, Plaintiff was teaching a class in which K.C. was a
student.
K.C., a white, visually impaired student who suffers from multiple
disabilities, was rude and disruptive, and Plaintiff eventually sent her to stand
outside the classroom.
(See Doc. 51 at 8-9; Doc. 47 at 3).
When K.C.
subsequently disobeyed Plaintiff’s instruction to return to the classroom, Plaintiff
walked to K.C. and began escorting her toward the classroom. (Doc. 51 at 8-9;
Doc. 47 at 3). Plaintiff testified that as she and K.C. were walking side-by-side,
K.C. fell to the ground and began to throw a temper tantrum. (Doc. 43-1 at 11).
Plaintiff had her arm around K.C. before she fell; Plaintiff testified she tried to
catch K.C. to help her back to her feet. (Id. at 11-12). When K.C. refused to
cooperate, Plaintiff testified she left her alone. (Id. at 12). For purposes of
summary judgment, this is how the events with K.C. unfolded.
This interaction was witnessed by at least five other AIDB employees. One
teacher, Brenda Lee, stated she saw K.C. fall but did not see Plaintiff pull her
across the floor. (Doc. 43-2 at 37). The rest of the witnesses had different
impressions. One teacher, Carolyn Stamps, saw Plaintiff escorting K.C. to the
classroom and witnessed K.C. fall to the floor; Stamps could not say whether K.C.
fell or was pushed to the ground. (Doc. 43-3 at 25). Stamps stated Plaintiff pulled
K.C. toward the classroom but did not observe the entire interaction because her
view of the area was obstructed. (Id.; Doc. 43-2 at 35). Katie Trotter, a job coach,
5
observed K.C. sit down on the floor as Plaintiff was escorting her. (Doc. 43-3 at
22). Trotter stated Plaintiff pulled K.C. by her arm back to the classroom, with
K.C. “sliding on her bottom across the floor.” (Id.). Trotter estimated Plaintiff
dragged K.C. across the floor for approximately twenty or thirty feet. (Doc. 43-2
at 32-33). Another teacher, Christine Smith, opined K.C. lost her balance and fell;
after the fall, Smith saw Plaintiff pull K.C. back to the classroom by the arm,
dragging her across the floor for a distance between twelve and twenty feet. (Id. at
28-31; Doc. 43-3 at 24). Holly Hartsfield, a teacher’s aide, also stated Plaintiff
pulled K.C. across the floor for approximately five to seven feet and into the
classroom; Hartsfield heard a loud bang after Plaintiff and K.C. were back in the
classroom. (Doc. 43-3 at 23; see Doc. 43-2 at 21).
Later that day, Hartsfield spoke with K.C. and observed a red mark on her
arm near the elbow. (Doc. 43-3 at 23). K.C. told Hartsfield that Plaintiff had
kicked her in the head during the incident. (See id.; see also Doc. 43-1 at 21; Doc.
43-2 at 17). Hartsfield then took K.C. to the nurse’s station and was directed to
make a report to the Alabama Department of Human Resources (“DHR”). (Doc.
47 at 4). Multiple agencies responded, and Plaintiff was placed on administrative
leave the following day pending an investigation. (Id.; Doc. 51 at 11; see Doc. 433 at 10). During the investigation, Plaintiff refused to meet with AIDB personnel
6
without her attorney.
(Doc. 47 at 5-6; Doc. 51 at 12).
Throughout the
investigation, Plaintiff denied dragging K.C. across the floor.
AIDB policies prohibit corporal punishment, which is defined as physically
punishing a student “by shaking, slapping, grabbing body parts with excessive
force, etc.” (Doc. 43-1 at 93-94). On October 24, 2014, Mascia wrote Plaintiff a
letter memorializing the conclusions of AIDB’s investigation. (Doc. 43-3 at 1213). The letter acknowledged Plaintiff denied pulling K.C. across the floor but
concluded her version of events was outweighed by the four witness statements to
the contrary. (Id. at 12). As a result, Mascia recommended Plaintiff be suspended
without pay for ten days.
(Id. at 13).
Plaintiff rejected Mascia’s proposed
discipline and requested an evidentiary hearing with AIDB’s Board of Trustees.
(Doc. 43-6 at 3; see Doc. 43-1 at 92).
The hearing board was comprised of four members of the Executive
Committee of AIDB’s Board of Trustees (the “Hearing Board”). The Hearing
Board conducted an evidentiary hearing on November 7, 2014. (Doc. 43-2).3
Plaintiff was represented by counsel at the hearing, presented evidence, and
testified she never pulled K.C. across the floor. (Id.; see Doc. 47 at 7). Plaintiff
3
Each Hearing Board member affirmed their impartiality and that they would decide the case on
the evidence. (Doc. 43-2 at 3; see Doc. 47 at 7). Plaintiff contends one of the Hearing Board
members, Pat Green, failed to disclose his business relationship with K.C. (Doc. 51 at 13).
While unclear, it appears Mr. Green operated or had an interest in some sort of enterprise
referred to as “the arena.” (Doc. 43-1 at 55). Apparently, K.C. worked at the arena, as did other
HKS students. (Id.).
7
also called Brenda Lee, who testified she witnessed K.C. fall but did not see
Plaintiff pull her across the floor. (Doc. 43-2 at 37). The Hearing Board also
heard the other witnesses—Stamps, Smith, Trotter, and Hartsfield—testify they
saw Plaintiff pull K.C. across the floor after she fell. (Id. at 20-36). The Hearing
Board unanimously voted to approve Mascia’s recommended discipline of a tenday suspension without pay. (See Doc. 43-1 at 77). Mascia informed Plaintiff of
the Hearing Board’s decision later on November 7, 2014. (Id.). Plaintiff returned
to work at HKS on December 1, 2014. On January 6, 2015, Plaintiff filed an
EEOC charge, alleging her suspension without pay was racially motivated and
retaliatory. (Doc. 43-7).
Plaintiff contends her suspension was racially discriminatory because white
AIDB employees were accused of misconduct but received lesser discipline. (Doc.
51 at 14). Susan McCrary was a white female teacher at HKS who in 2011 was
involved in a physical altercation with an African American student in which she
pulled the student’s hair. (Id.; see Doc. 43-3 at 5).4 As a result of this incident,
McCrary was arrested and tried for third-degree assault.
(Doc. 51 at 14).
However, McCrary was not suspended without pay. (Id. at 14-15). AIDB’s
investigation revealed the student attacked and attempted to bite McCrary and that
McCrary’s actions were taken in self-defense. (Doc. 43-3 at 5-6; Doc. 43-4 at 4Mascia’s predecessor was AIDB’s president at the time, and Mascia did not participate in
determining whether McCrary should be disciplined. (Doc. 43-3 at 5).
4
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5). The student’s parents filed the criminal charges, but McCrary was acquitted
after a trial in Talladega Municipal Court. (Doc. 43-3 at 6; Doc. 43-4 at 5). AIDB
placed McCrary on paid administrative leave while it conducted the investigation
and during the pendency of the criminal charges. (Doc. 43-4 at 4-5). Under the
circumstances of that case, AIDB determined McCrary had not violated any of its
policies, and she returned to work after her acquittal. (See id. at 5).
Hope Marshall, another white teacher at HKS, was accused by a teacher’s
aide of “abusing” three students in 2013. (Doc. 51 at 16-18; see Doc. 43-4 at 6).
AIDB placed Marshall on paid administrative leave and reported the allegations to
DHR and law enforcement. (Doc. 43-4 at 6). Law enforcement conducted an
investigation and found no evidence to support the accusation. (Id.). Marshall
returned to work without discipline after AIDB concluded she had not violated any
applicable policies. (Id.).
In 2017, Hope Marshall was again accused of improper treatment of
students. (Doc. 47 at 11).5 AIDB placed Marshall on administrative leave and
conducted an investigation, which revealed she applied ankle weights to two
students during nap time to control their leg movements.
(Doc. 43-3 at 6).
Because this violated AIDB’s restraint policy, Mascia recommended Marshall be
suspended for ten days without pay. (Doc. 55-1 at 2). Marshall rejected Mascia’s
5
Atkinson had left employment with AIDB prior to this report, and she did not participate in the
investigation or recommend any discipline. (Doc. 43-4 at 7).
9
proposed discipline and requested a hearing before the Hearing Board. (Id.). Prior
to the hearing, Marshall negotiated a resolution, agreeing to a two-day suspension
without pay. (Id. at 3).
Plaintiff also contends she experienced retaliation for filing the January 6,
2015 EEOC charge.
(Doc. 51 at 19). These allegations concern Defendants’
response to Plaintiff’s complaints concerning a disruptive student, the lack of a
classroom paraprofessional, failure to purchase a book Plaintiff requested, and
Atkinson’s response when Plaintiff held a birthday party for a student. (Id. at 1922). Each circumstance is described in turn.
After she filed the EEOC complaint, Plaintiff began experiencing problems
with a disruptive student, Z.L. (Doc. 51 at 19-21; see Doc. 47 at 11-12). Z.L.
directed racial epithets and insults at Plaintiff and other students and threatened to
harm and/or kill Plaintiff, other students, HKS staff, Atkinson, and Mascia. (Doc.
51 at 19-21). Plaintiff testified Z.L had been in her class for two or three years.
(Doc. 43-1 at 43). Plaintiff reported Z.L.’s behavior to Atkinson and repeatedly
requested assistance. (Doc. 51 at 19-21). However, Plaintiff contends: (1) Z.L.
was not disciplined, expelled, or moved to another class; and (2) Atkinson failed to
provide an AIDB behavioral specialist to assist Plaintiff. (Id.).6 Compounding this
6
Plaintiff cites specific portions of her deposition testimony and the entirety of two exhibits—
29 and 14 pages in length, respectively—to support these contentions. (Doc. 51 at 19-21). The
cited testimony does not support the contention Plaintiff was denied access to a behavioral
10
problem was the February 6, 2015 retirement of Plaintiff’s paraprofessional aide.
(Id.). Plaintiff contends a new paraprofessional aide was not hired until April
2015. (Id.). Plaintiff testified Z.L. was not in her class the following academic
year because Atkinson removed him from Plaintiff’s roster. (Doc. 43-1 at 43).
In response, Defendants have submitted unrebutted evidence that Z.L. was
an intellectually disabled student who had an I.Q. below 50 and suffered from
multiple disabilities, including Tourette’s Syndrome.
(Doc. 43-4 at 7-8).7
Atkinson concluded Z.L.’s behavioral problems and outbursts were attributable to
his disabilities. (Id. at 8). Additionally, previous suspensions had not affected
Z.L.’s disruptive behavior, AIDB did not have an alternative placement for Z.L.,
and Z.L.’s mother would not approve of additional recommended behavior
interventions. (Id.). Accordingly, Defendants’ disciplinary options for Z.L. were
limited under the Disabilities Education Act. (Id.). Moreover, Defendants have
offered unrebutted evidence that: (1) Wendy Glass, an AIDB Behavior Specialist,
was available as a resource to assist Plaintiff with Z.L.’s behavior; and (2) a parttime aide was approved during the absence of a dedicated paraprofessional. (Id. at
specialist. While the undersigned has not meticulously combed the combined 43 pages of the
cited exhibits to find support for this assertion, they do not appear to support it. (Doc. 51-7; Doc.
51-19).
7
Additionally, Defendants have offered unrebutted testimony that only the AIDB Board of
Trustees can remove or expel a student; Atkinson did not have that authority as Principal. (Doc.
43-4 at 7).
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9).
Plaintiff has not cited any evidence to contest the foregoing averments
regarding Wendy Glass or the availability of a part-time aide. (Id.).
Regarding the paraprofessional, Defendants have submitted unrebutted
evidence that the process of hiring a new paraprofessional—posting an available
job, verifying credentials, interviewing applicants, and selecting an applicant—
took an average of eight to twelve weeks. (Doc. 43-4 at 8). The approximately ten
weeks it took to replace Plaintiff’s paraprofessional fell within this time frame.
Additionally, Plaintiff testified Z.L.’s behavior did not improve even after a new
full-time paraprofessional was assigned. (Doc. 43-1 at 47).
Next, Plaintiff contends she requested Atkinson to purchase a book for her
classroom and that Atkinson agreed to do so prior to the incident with K.C. (Doc.
47 at 13). The book cost $165, which would constitute the majority of Plaintiff’s
yearly classroom supply funds. (Id.). At some point Atkinson refused to purchase
the book.8 Defendants have offered unrebutted evidence that Atkinson placed
Plaintiff’s brief does not describe when Atkinson refused to purchase the book. (Doc. 51 at
21). Instead, as elsewhere, Plaintiff’s brief simply recites the same facts in three sequential
paragraphs. (Id.; see id. at 22 (three sequential paragraphs reciting verbatim allegations
regarding the birthday party); id. at 19-21 (four sequential paragraphs reciting verbatim
allegations regarding Z.L.); id. at 16 (three sequential paragraphs reciting the same threadbare
allegations of disparate treatment verbatim without citing any evidence); id. at 14 (two sequential
paragraphs reciting allegations concerning Pat Green verbatim); id. at 12 (two sequential
paragraphs reciting Plaintiff’s demand for an Executive Committee hearing verbatim); see also
Doc. 50 at 14 (three sequential paragraphs reciting the same threadbare allegations of disparate
treatment verbatim); id. at 15-16 (five non-sequential paragraphs reciting same allegations
concerning the birthday party verbatim); id. at 17 (three sequential paragraphs reciting same
allegations concerning an email verbatim); id at 17-18 (two non-sequential paragraphs reciting
8
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purchase orders for copies of the book for Plaintiff and a white teacher who had
also requested it. (Doc. 43-4 at 10). After HKS’s bookkeeper told Atkinson
school funds should not be used for individual teachers due to auditing issues,
Atkinson informed Plaintiff and the other teacher she would not purchase copies of
the book for their respective classrooms. (Id. at 10-11). Instead, Atkinson told
both teachers there were two copies of the book in the HKS library, which they
could check out and keep in their classrooms. (Id. at 11).
Regarding the party, Plaintiff threw a birthday celebration for one of her
students on April 2, 2015, inside an HKS academic building. (Doc. 51 at 21). It
appears Plaintiff did not get prior permission to have the party. (See id.; Doc. 43-1
at 79). Plaintiff brought two deep fryers she owned to prepare food for the party.
(See Doc. 51 at 21; Doc. 47 at 14). After the party, a staff member asked if she
could use the deep fryers; Plaintiff agreed. (Doc. 47 at 14). Later that day another
staff member found the deep fryers unattended and confiscated them.
(Id.).
Plaintiff estimates her fryers were not returned for twenty days. (Id.).
The day after the party, Atkinson sent Plaintiff an email reminding her that
supervisor approval was required for parties on school grounds. (Doc. 43-1 at 79).
The email also directed Plaintiff to review AIDB guidelines regarding snacks.
(Id.). Finally, the email advised Plaintiff she could not throw parties in the future
same allegations concerning Z.L. and paraprofessional verbatim); id. at 19-20 (five nonsequential paragraphs reciting same allegations regarding Z.L. and paraprofessional verbatim).
13
without prior approval. (Id.). On the same day, Atkinson sent an email to other
staff members including similar reminders that: (1) parties required pre-approval;
(2) using deep fryers in the building was unacceptable because they presented a
safety hazard—particularly when left unattended—and emitted odors. (Id. at 78).
Plaintiff did not receive any formal discipline as a result of the birthday party but
felt the email and detention of her deep fryers were retaliatory. (Doc. 47 at 14).
Plaintiff also testified a white teacher threw a May 19, 2015 party without prior
approval. (Id. at 15; Doc. 51 at 21-22).9 Plaintiff further testified Atkinson did not
send any emails regarding the May 19, 2015 party; nor did the white teacher
receive any warning or discipline. (Doc. 51 at 22; Doc. 47 at 15). Defendants
have submitted unrebutted evidence that Atkinson was unaware of the May 19,
2015 party. (Doc. 43-4 at 9).
On October 5, 2015, Plaintiff filed a second EEOC charge, again alleging
racial discrimination and retaliation. (Doc. 51 at 22; see Doc. 43-8).
IV.
MOTION TO STRIKE
Counsel for Mascia and Atkinson have filed a motion to strike three exhibits
and portions of Plaintiff’s responsive brief. (Doc. 53). Plaintiff has not responded
to the motion, and the time to do so has expired. (See Doc. 17 at 5). The exhibits
subject to the motion to strike are: (1) a letter from K.C.’s mother to Atkinson
9
Plaintiff testified she did not know whether the white teacher who gave the party used deep
fryers. (Doc. 43-1 at 32).
14
dated August 19, 2014 (Doc. 50-20); (2) the declaration of Corrie Henderson (Doc.
50-11); and (3) the declaration of Karen Raine (Doc. 50-12). Defendants also
move to strike portions of Plaintiff’s brief, including: (1) seven paragraphs relying
on the foregoing exhibits; (2) one paragraph relying on the foregoing exhibits and
Plaintiff’s testimony not based on Plaintiff’s personal knowledge; and (3) thirty
paragraphs which do not cite to any evidence, include hearsay, and/or are not based
on personal knowledge. (Doc. 53). As explained below, the motion will be
granted in part and denied in part.
A.
Lack of Citation to the Record
Rule 56(c)(3) provides that a court presented with a motion for summary
judgment “need consider only the cited materials, but it may consider other
materials in the record.” Likewise, the Initial Order governing this case provides:
“Citations to the record must refer to the document number and paragraph or line
number, where available. If the parties are unable to cite to a specific paragraph or
line number, they shall cite the document number and page number.” (Doc. 17 at
4). While the court will not strike the portions of Plaintiff’s brief that purport to
provide factual support without citing to any evidence, any unsupported statements
cannot create a genuine issue of material fact where Defendants’ have presented
evidence to the contrary. See White v. Alabama Inst. for Deaf & Blind, No. 160190-VEH, 2018 WL 1089879, at *3 (N.D. Ala. Feb. 28, 2018) (“Getting past
15
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.”). The factual assertions in the Plaintiff’s
brief which are not supported by the record do not appear in the facts set out above.
The same standard applies to Defendants’ briefs.
B.
K.C.’s Mother’s Letter to Atkinson
The unsworn letter from K.C.’s mother to Atkinson is dated August 19,
2014, the day of the incident giving rise to Plaintiff’s ten-day suspension without
pay. (Doc. 50-20). In the letter, K.C.’s mother expresses her support for, and faith
in, Plaintiff as a teacher. K.C.’s mother also expresses her belief that K.C. lied
about the incident; although not entirely clear, it appears K.C. may have asserted
she fell because Plaintiff pushed her to the ground. (See id. at 1) (“[K.C.] admitted
that she lied about what happened-[Plaintiff] did NOT push her down, she fell after
[Plaintiff] grabbed her arm . . . .”). The letter also states that, after K.C. fell to the
ground, Plaintiff “took [K.C.] by the arm and dragged her back into the class.”
(Id.).
"[E]vidence inadmissible at trial cannot be used to avoid summary
judgment. Even on summary judgment, a court is not obligated to take as true
testimony that is not based upon personal knowledge." Corwin v. Walt Disney Co.,
475 F.3d 1239, 1249 (11th Cir. 2007) (citations omitted) (affirming grant of
16
summary judgment for defendant and finding no error in district court's striking
testimony not based on personal knowledge). Hearsay is a statement other than
one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. FED. R. EVID. 801(c). Hearsay
which cannot be reduced to admissible form at trial may not be considered at
summary judgment. Macuba v. Deboer, 193 F.3d 1316, 1322-23 (11th Cir. 1999).
Because K.C.’s mother was not present during the incident, her letter is not
based on personal knowledge and constitutes hearsay which cannot be reduced to
admissible form. Moreover, even if the letter were admissible, it would not help
Plaintiff. To the extent Plaintiff might rely on the letter to show K.C. lied about
the incident, the lies the letter describes are limited to K.C.’s apparent earlier
assertion Plaintiff pushed her to the ground. Whether Plaintiff pushed K.C. down
is not at issue; for purposes of summary judgment, K.C. either lost her balance or
simply sat down. Similarly, the Hearing Board did not hear any contention that
Plaintiff pushed K.C. down; its decision was based on testimony from four
witnesses who stated they saw Plaintiff dragging K.C. across the floor after she
fell. Curiously, the letter supports the Hearing Board’s conclusion on this point.
For the foregoing reasons, the motion to strike the letter will be granted
because it is inadmissible hearsay. The letter is also irrelevant to the material facts
17
in this case. Accordingly, the court will not consider the letter or the portions of
Plaintiff’s brief which rely on the letter.
C.
Declaration of Karen Raine
Karen Raine was employed as a teacher’s aide at HKS at some point; she
does not state when she began working, when she ceased working, or when any of
the incidents described occurred. (Doc. 50-12). At some point Raine worked in
Hope Marshall’s classroom for some period of time. (Id. at 1). Raine states she
observed Hope Marshall’s “abusiveness towards students;” she also avers Hope
Marshall was reported to DHR “several times.” (Id.).10 In utterly conclusory
fashion, Raine also opines “AIDB favors white teachers when it comes to
investigating incidents of abuse of students.” (Id. at 2).
Defendants move to strike Raine’s declaration because: (1) due to
chronology, it could not have been considered by the Hearing Board and thus is
irrelevant; and (2) it does not speak to Mascia’s or Atkinson’s involvement with
the investigation or decision regarding Marshall’s discipline.
(Doc. 53 at 2).
Whether the Hearing Board could have considered Raine’s declaration does not
necessarily render it irrelevant for all purposes. Accordingly, the court will not
strike Raine’s declaration. However, Raine’s statements are so vague, conclusory,
10
The lack of details makes it impossible to determine whether Raine is referring to the 2013
and 2017 reports to DHR discussed above. Raine does not allege she ever reported Hope
Marshall to DHR; nor does she state whether anyone ever reported Hope Marshall’s conduct to
Mascia or Atkinson. Indeed, it is unclear whether Raine’s employment overlapped with either
Mascia’s or Atkinson’s.
18
and lacking in detail as to be useless to rebut properly-supported summary
judgment arguments.
D.
Corrie Henderson’s Declaration
Corrie Henderson was an AIDB employee from 1997 to 2011; her
declaration describes the 2011 incident which led to Susan McCrary’s placement
on administrative leave and unsuccessful criminal prosecution. (Doc. 50-11; see
Doc. 43-3 at 5). Henderson describes the incident as an assault by Susan McCrary.
(Doc. 50-11 at 2). Henderson gave this description to AIDB and as a witness in
the criminal case. (Id. at 3). Henderson states she terminated her employment
with AIDB soon after the incident; she was motivated in part by her “refusal to be
complicit” in this and other unspecified “policy violations” at AIDB. (Id. at 2-3).11
Defendants’ motion to strike is based on the same arguments it asserted
regarding Raine’s declaration.
As with Raine’s declaration, the fact that
Henderson’s declaration could not have been considered by the Hearing Board
does not necessarily render her statements irrelevant. As to the impact of Raine’s
statements on the merits of this case, Defendants’ arguments are well taken.
However, the motion to strike will be denied as to Henderson’s declaration.
11
Henderson notes she parted ways with AIDB in good standing, with a letter of
recommendation from AIDB. (Doc. 50-11 at 3, 5).
19
E.
Conclusion Regarding Motion to Strike
For all the foregoing reasons, Defendants’ motion to strike is GRANTED
IN PART and DENIED IN PART.
(Doc. 53).
Specifically, the motion is
GRANTED as to the letter from K.C.’s mother and all statements in Plaintiff’s
brief which rely on it. The motion to strike is DENIED in all other respects.
V.
DISCUSSION
As explained below, summary judgment is due to be granted as to all of
Plaintiff’s claims.
A.
Claims Against Mascia and Atkinson
The official capacity claims against Atkinson and Mascia are duplicative of
Plaintiff’s claims against AIDB. As to the individual capacity claims, Atkinson
and Mascia are entitled to qualified immunity. Accordingly, there are no genuine
issues of material fact, and Mascia and Atkinson are entitled to judgment as a
matter of law.
1.
Official Capacity Claims
Atkinson and Mascia are entitled to summary judgment on the claims
asserted against them in their official capacities.
As Defendants argue, the
Eleventh Circuit has explained a claim against a state or municipal actor in her
official capacity is duplicative of a claim against the municipality or state itself.
See Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991).
20
Plaintiff
opposes dismissal of the official capacity claims but has not articulated a rationale
in response to Mascia’s and Atkinson’s invocation of Busby. (Doc. 50 at 2).
Moreover, AIDB—a state defendant—is a party to this case. Accordingly, any
official capacity claims against Atkinson and Mascia are effectively claims against
AIDB and are duplicative. See White, 2018 WL 1089879, at *13–14 (granting
summary judgment on official capacity claims under both Title VII and § 1983 on
similar rationale). Accordingly, the official capacity claims against Mascia and
Atkinson are due to be dismissed.
2.
Individual Capacity Claims and Qualified Immunity
Among the many meritorious grounds for summary judgment asserted by
Mascia and Atkinson is their entitlement to qualified immunity. (Doc. 45 at 3134). Qualified immunity shelters government officials performing discretionary
functions from civil liability, as long as “their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To claim qualified
immunity, a government official first must prove she was acting within her
discretionary authority. Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003).
To show a particular action was discretionary, a defendant must show: (1) she was
“performing a function that, but for the alleged constitutional infirmity,” was
within her legitimate job description; and (2) she was “executing that job-related
21
function.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir.
2004).
“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. To do so, the plaintiff must
show the defendant’s actions violated a clearly-established constitutional right. Id.
An official is entitled to qualified immunity if she “could have believed” the
conduct was lawful. Hunter v. Bryant, 502 U.S. 224, 227, (1991). Accordingly, to
overcome qualified immunity, a plaintiff must demonstrate that “no reasonably
competent” official would have acted as the defendant did. Malley v. Briggs, 475
U.S. 335, 341 (1986).
Here, Atkinson and Mascia claim qualified immunity as to all of Plaintiff’s
claims. (Doc. 45 at 31-34). Both Mascia and Atkinson aver that at all relevant
times they acted within their discretionary authority in performing official duties
within their authority. (Doc. 43-3 at 2; Doc. 43-4 at 2). Accordingly, the burden
shifts to Plaintiff to show Defendants are not entitled to qualified immunity. See
White, 2018 WL 1089879, at *13.
In response, Plaintiff cites portions of an Eleventh Circuit opinion relying on
the Alabama Supreme Court’s analysis in Ex parte Cranman, 792 So. 2d 392, 405
(Ala. 2000), regarding state-agent immunity for tort claims under Alabama state
22
law. (Doc. 50 at 29-30) (citing Girder v. City of Auburn, 618 F.3d 1240 (11th Cir.
2010)). However, as Mascia and Atkinson note in their reply, Plaintiff does not
assert any claims under Alabama law in the instant lawsuit. (See Doc. 52 at 6-7).
Nor does Plaintiff’s response address the relevant qualified immunity inquiry.
(Doc. 50 at 29-33). Plaintiff having effectively failed to address the qualified
immunity defense, Mascia and Atkinson are entitled to qualified immunity as to
the official capacity claims against them. See White, 2018 WL 1089879, at *13
(granting summary judgment to all claims—including claims under both § 1983
and Title VII—for failure to respond to qualified immunity defense); Maldonado v.
Unnamed Defendant, 648 F. App’x 939, 955 (11th Cir. 2016).
Additionally, even if Defendants were not entitled to qualified immunity
under the foregoing analysis, they would be entitled to qualified immunity as a
result of analysis in the remainder of this opinion. As explained below, Plaintiff
has failed to establish a violation of her rights under the Constitution or federal
law.
Accordingly, Mascia and Atkinson are entitled to qualified immunity
regarding all claims asserted against them in their individual capacities. Tuck,
2019 WL 398702, at *7–8.
B.
Claims Against AIDB
As explained below, there are no genuine issues of material fact and AIDB
is entitled to judgment as a matter of law on all claims asserted.
23
1.
Disparate Treatment
Plaintiff claims AIDB suspended her because of her race in violation of Title
VII and § 1983.12 Where there is no direct evidence of discrimination, as here, a
plaintiff may establish a prima facie case of discrimination through circumstantial
evidence by proving: (1) she belongs to a protected class; (2) she was subjected to
adverse employment action; (3) her employer treated similarly situated employees
outside her classification more favorably; and (4) she was qualified to do the job.
See Holifield, 115 F.3d 1155, 1562 (11th Cir. 1997) abrogated on other grounds by
Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
Additionally, a plaintiff’s would-be comparator must be “similarly situated in all
material respects.” Lewis v. City of Union, Ga., 918 F.3d 1213, 1224 (11th Cir.
2019).
Once the plaintiff successfully demonstrates a prima facie case, the
defendant is required to articulate a legitimate, non-discriminatory reason for its
conduct. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004).
Because the employer must only produce, not prove, a non-discriminatory reason
for its action, the employer’s burden is “exceedingly light.”
Walker v.
NationsBank of Fla., N.A., 53 F.3d 1548, 1556 (11th Cir. 1995). “If the employer
“The legal elements necessary to prove disparate treatment under both Title VII and § 1983 are
identical.” Tuck, 2019 WL 398702, at *7 (citing Stallworth v. Shuler, 777 F.2d 1431, 1334 (11th
Cir. 1985)).
12
24
satisfies its burden by articulating one or more reasons, then the presumption of
discrimination is rebutted, and the burden of production shifts to the plaintiff to
offer evidence that the alleged reason of the employer is a pretext for illegal
discrimination.” Wilson, 376 F.3d at 1087. To show pretext, a plaintiff “must
meet the reason proffered head on and rebut it.” Crawford v. City of Fairburn, 482
F.3d 1305, 1308 (11th Cir. 2007).
Here, Plaintiff belongs to a protected class, was subjected to an adverse
employment action, and was qualified to perform her job. Accordingly, the only
contested element is whether AIDB treated Plaintiff more harshly than white
employees accused of similar misconduct. Plaintiff offers Susan McCrary and
Hope Marshall as comparators. (Doc. 51 at 27-28). As Plaintiff would have it,
both McCrary and Marshall were white teachers accused of abusing students but
receiving less severe discipline. (Id.).
Following the 2011 incident involving McCrary and a student, AIDB placed
McCrary on leave while it conducted an investigation, just as it did with Plaintiff
following the incident with K.C.
Unlike Plaintiff, McCrary faced criminal
prosecution for the 2011 incident. However, McCrary was acquitted, and the
investigation revealed McCrary was acting in self-defense and was attempting to
restrain the student, who had attacked and attempted to bite her. Accordingly,
25
AIDB contends McCrary is not an appropriate comparator because she is not
similarly situated to Plaintiff.
The only evidence Plaintiff offers to rebut AIDB’s arguments regarding
McCrary is the affidavit of Corrie Henderson. (Doc. 50-11 at 2). Henderson avers
she saw McCrary point at the student and run toward her while yelling; McCrary
then grabbed the student by the hair and attempted to tackle her. (Id.). Henderson
also states the student struggled in an attempt to free herself from McCrary until
Henderson grabbed McCrary’s hands to separate the two.
(Id.).
Finally,
Henderson states she relayed her version of events to an AIDB employee who
stated she was investigating the incident. (Id.). This statement does not conflict
with AIDB’s contention that the student had attacked McCrary and tried to bite her
prior to McCrary’s actions.
More importantly, Plaintiff has not offered any
description of other evidence AIDB’s investigation as to McCrary revealed, much
less whether AIDB believed McCrary was acting in self-defense. See Elrod v.
Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991). Accordingly, while
AIDB allowed McCrary to return to work without discipline after her acquittal and
the conclusion of the investigation, McCrary is not a suitable comparator. Lewis,
918 F.3d at 1227.
Regarding Hope Marshall, Plaintiff relies on separate events that occurred in
2013 and 2017. Following reports that Hope Marshall was abusing students in
26
some fashion in 2013, AIDB placed her on paid administrative leave, just as it did
with Plaintiff. Also as it did with Plaintiff, AIDB relayed the allegations to DHR
and law enforcement.
An investigation found no evidence to support the
accusation. Marshall returned to work without discipline after AIDB concluded
she had not violated any applicable policies.
The only evidence Plaintiff has offered to contradict the foregoing version of
the 2013 events is the fatally vague declaration of Karen Raine. (Doc. 50-12).
Raine avers Marshall mistreated a student, S.V., by: (1) turning off the light in the
bathroom while S.V. was sitting on the commode; and (2) running toward S.V. to
scare him and make him fall down. (Id. at 2). S.V. was scared to be left alone
with Marshall.
(Id.).
Raine also states: (1) Marshall somehow made an
unidentified student react violently when Raine was not present; (2) when Raine
returned, the student was crying in the corner with her clothes off; and (3) Marshall
convinced the student’s parents that her behavior was “out of control.” (Id.).
While Raines accusations are troubling, her declaration does not reveal the dates of
her employment, the dates when these events transpired, or whether she ever
shared her specific allegations with AIDB or HKS personnel. Indeed, Raine does
not allege AIDB was ever aware of the specific events she alleges. Accordingly,
Raine’s declaration is insufficient to overcome evidence submitted by AIDB
27
showing Marshall’s conduct in 2013 did not violate any AIDB policies; AIDB’s
evidence is effectively unrebutted.
In 2017, AIDB again received reports Marshall was mistreating students.
AIDB placed Marshall on administrative leave and conducted an investigation, just
as it did with Plaintiff. AIDB’s investigation revealed she had used ankle weights
on two students to control their leg movements during nap time. This violated
AIDB’s policy against restraining students, so Mascia recommended Marshall’s
suspension for ten days without pay.
Marshall rejected Mascia’s proposed
discipline and requested a hearing before AIDB’s Hearing Board. Prior to the
hearing, Marshall negotiated a resolution to the dispute, agreeing to a two-day
suspension without pay.13
The 2017 events involving Marshall do not provide a suitable comparison to
the events surrounding Plaintiff’s suspension. Marshall’s suspension was due to
her violation of AIDB’s restraint policy, while Plaintiff was suspended because she
violated AIDB’s corporal punishment policy. Lewis, 918 F.3d at 1227. Therefore,
Marshall and Plaintiff are not similarly situated in all material respects. See id.;
see, e.g., Watkins v. City of Adamsville, No. 17-00402-RDP, 2019 WL 3429499, at
*16 (N.D. Ala. July 30, 2019); Husk v. City of Talladega, Ala,, No. 17-01433ACA, 2019 WL 2578075, at *1 (N.D. Ala. June 24, 2019). Accordingly, Plaintiff
13
Atkinson had left employment with AIDB prior to this report and was not involved in the
investigation or any decisions regarding discipline. (Doc. 43-4 at 7).
28
cannot prove her prima facie case, and AIDB is entitled to summary judgment on
this claim. Holifield, 115 F.3d at 1562.
Alternatively, AIDB has met its burden of showing its legitimate, nondiscriminatory reasons for suspending Plaintiff. The Hearing Board heard four
witnesses testify Plaintiff dragged or pulled K.C. across the floor. Notwithstanding
Plaintiff’s and one other witness’s testimony to the contrary, the Hearing Board
believed the four witnesses and unanimously determined Plaintiff violated AIDB’s
corporal punishment policy. Moreover, the events described by the four witnesses
constitute corporal punishment under AIDB’s policy. Accordingly, AIDB has met
its burden to show legitimate reasons for Plaintiff’s discipline. See Watson v.
Kelley Fleet Servs., LLC, 430 F. App'x 790, 791 (11th Cir. 2011) (affirming grant
of summary judgment for employer and finding violation of workplace violence
policy constituted legitimate, non-retaliatory reason for termination); Parris v.
Keystone Food, LLC, 959 F. Supp. 2d 1291, 1309 (N.D. Ala. 2013) ("In an
employee misconduct case such as this one, an employer's honest belief (even if
erroneous) that an employee violated a work rule constitutes a legitimate,
nondiscriminatory reason for firing an employee.").
While Plaintiff contends she did not violate any AIDB policies with regard
to K.C., this does not establish that AIDB’s proffered reasons were pretextual and
that she was punished because of her race. See Wilson v. B/E Aerospace, Inc., 376
29
F.3d 1079, 1092 (11th Cir. 2004) (plaintiff’s contention she was not insubordinate
did not demonstrate resulting termination was discriminatory). Even if AIDB
erroneously concluded Plaintiff dragged K.C. across the floor, getting the facts
wrong does not establish pretext.
Elrod, 939 F.2d at 1470 (even assuming
employees who reported plaintiff's acts of sexual harassment were "lying through
their teeth," the grant of summary judgment for employer was proper because the
inquiry "is limited to whether [employer] believed that [plaintiff] was guilty . . .
and if so, whether this belief was the reason behind" the termination).
Accordingly, to the extent Plaintiff may rely on her denial of wrongdoing, this is
insufficient to establish pretext.
Plaintiff also contends the hearing violated due process. (Doc. 51 at 30).
This argument is based on vague allegations that K.C. was an employee of “the
arena,” some sort of enterprise in which Pat Green, one of the Hearing Board
members, had some sort of interest.14 Plaintiff assumes Pat Green knew K.C.
because she worked at the arena and “he knows the students that come down
there.” (Doc. 43-1 at 55). Plaintiff does not contest AIDB’s assertion that the
Hearing Board had the authority to make employment decisions. (Compare Doc.
Although unclear, Plaintiff may also contend the Hearing Board’s failure to review the
stricken letter from K.C.’s mother somehow violated due process. (Doc. 51 at 13-14). While
this opinion does not consider the letter’s factual assertions, neither can the non-admission of the
letter during the hearing constitute a due process violation. For whatever the letter is worth, it
supported the Hearing Board’s contention that Plaintiff dragged K.C. across the floor.
14
30
47 at 21-22, with Doc. 51). Accordingly, the only question is Pat Green’s bias due
to his assumed knowledge that K.C. worked at the arena.
Administrators serving as adjudicators are presumed to be unbiased; the
burden of establishing a disqualifying interest lies with the party asserting the bias.
Schweiker v. McClure, 456 U.S. 188, 195-96 (1982).
This presumption of
impartiality is bolstered here, where each Hearing Board member affirmed they
would decide the case on the merits of the evidence presented.
Plaintiff’s
assumption that Pat Green knew K.C. is insufficient to overcome the assumption of
impartiality. This insufficiency is compounded by Plaintiff’s failure to introduce
any evidence regarding K.C.’s role at the arena, what sort of endeavor the arena is,
and Pat Green’s interest or involvement in the arena. Contrary to Plaintiff’s
assertions, the hearing—at which Plaintiff was represented by counsel who crossexamined AIDB’s witnesses, presented her own witnesses, and submitted
evidence—complied with due process. To the extent Plaintiff relies on Pat Green’s
alleged conflict to establish pretext, she fails.
For the foregoing reasons, there are no genuine issues of material fact and
AIDB is entitled to judgment as a matter of law on Plaintiff’s disparate treatment
claim because she cannot make her prima facie case.
Alternatively, AIDB has
offered legitimate, non-discriminatory reasons for disciplining Plaintiff, and
Plaintiff cannot show those reasons are pretext for discrimination.
31
2.
Retaliation
The plaintiff asserts retaliation under Title VII and §1983.15 A plaintiff
claiming retaliation must show: (1) she engaged in statutorily protected expression;
(2) she suffered adverse employment action; and (3) a causal link between the two.
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). The Supreme Court has
held the challenged employment action must be materially adverse, differentiating
“significant from trivial harms.”
White, 548 U.S. at 67-68.
To qualify as
retaliatory, an adverse employment action must be a “serious and material change
in the terms, conditions, or privileges of employment.” Davis v. Town of Lake
Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) overruled on other grounds as
recognized by Crawford, 529 F.3d at 974. Regarding causation, the Supreme
Court has observed: “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 Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). Temporal
proximity between the protected activity and the adverse employment action is
relevant to the inquiry but, without more, is not determinative of pretext. Dates v.
Frank Norton, LLC, 190 F. Supp. 3d 1037, 1071 (N.D. Ala. 2016) (citing Jackson
15
The standard applicable to retaliation claims is identical under either statute. Rainey v. Ga.
Dep’t of Juvenile Justice, No. 06-1834, 2007 WL 9802325, at *13 (N.D. Ga. Nov. 20, 2007).
32
v. Hennessy Auto, 190 F. App’x 765, 768 (11th Cir. 2006). Where an employer
offers legitimate reasons for an employment decision, the employee bears the
burden to show the proffered reasons are pretextual.
Damon v. Fleming
Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1991).
The argument portion of Plaintiff’s brief addressing retaliation relies entirely
on her assertion that AIDB retaliated against her by assigning her a “lower
functioning” class in which Z.L. was a member. (Doc. 51 at 34). However, the
fact section of Plaintiff’s brief indicates she may allege retaliation on the following
additional grounds: (1) Atkinson’s refusal to purchase a book for Plaintiff’s
classroom; (2) the absence of an assigned paraprofessional from February to April
2015; (3) the confiscation of her deep fryers; and (4) Atkinson’s email following
the birthday party. As explained below, Plaintiff has failed to establish a prima
facie case of retaliation because none of these events constituted materially adverse
employment actions; causation is lacking regarding some of these events as well.16
Additionally, even if any of these events could constitute retaliatory conduct,
Plaintiff has failed to rebut AIDB’s legitimate explanations.
Each allegedly
retaliatory action is discussed in turn.
16
Plaintiff’s only argument regarding causation relies on temporal proximity. (Doc. 51 at 34).
33
a.
Z.L. and Lower Functioning Class
Plaintiff’s allegations concerning Z.L. do not constitute an adverse
employment action for purposes of retaliation. Plaintiff alleges AIDB retaliated by
refusing to discipline or expel Z.L. and refusing to provide a behavioral specialist.
However, AIDB has presented evidence that Z.L. suffered from multiple
disabilities—including
a
profound
intellectual
Syndrome—which caused his behavioral problems.
disability
and
Tourette’s
As a teacher of disabled
students, it is difficult to imagine how the facts described by Plaintiff could
constitute a “serious and material change in the terms, conditions, or privileges of
employment.” Davis, 245 F.3d at 1239.
Moreover, Plaintiff’s allegations concerning Z.L. fail to establish causation.
Plaintiff testified Z.L. began exhibiting troubling behavior after she filed her
EEOC charge. However, Plaintiff testified Z.L. had been assigned to her class for
at least a year or two before she filed her EEOC complaint. To the extent Plaintiff
contends Z.L’s placement in her class supports her retaliation claim, simple
chronology defeats the argument. Also, while Plaintiff vaguely alleges she was
assigned a “lower functioning” class, her only specific allegations in this regard
concern Z.L.’s conduct. (Doc. 51 at 34-35).17 Furthermore, Z.L. was assigned to a
Plaintiff’s statement of facts is silent regarding her conclusory allegation regarding assignment
to a lower functioning class. Plaintiff has not asserted any facts regarding when the class was
17
34
different class the following year. For the foregoing reasons, Plaintiff’s allegations
concerning Z.L. do not satisfy her prima facie burden regarding retaliation.
Even if Plaintiff’s allegations concerning Z.L. could satisfy the elements of
retaliation, AIDB has offered unrebutted legitimate reasons for its actions. First,
AIDB notes its previous discipline of Z.L. had not been effective and that further
discipline was not feasible in light of his mother’s wishes and the constraints of the
Disabilities Education Act.
AIBD also notes Wendy Glass, a Behavioral
Specialist, was available to assist Plaintiff and it never refused Plaintiff’s requests
for assistance with Z.L. Plaintiff has not offered any evidence or response to
AIDB’s legitimate reasons for its actions regarding Z.L., or otherwise shown its
reasons to be pretextual.
For the foregoing reasons, events surrounding Z.L. do not constitute
retaliation.
b.
Paraprofessional
Plaintiff contends she was without a paraprofessional for approximately ten
weeks after her previous paraprofessional retired. Plaintiff does not allege AIDB
caused her previous paraprofessional to retire; her claim concerns the amount of
time it took to hire a replacement. These events also compounded the problems
caused by Z.L.’s conduct. The temporary absence of a paraprofessional dedicated
assigned or its impact on her work environment. Her allegations regarding Z.L.’s behavior are
insufficient to satisfy Plaintiff’s prima facie burden regarding retaliation.
35
to Plaintiff’s classroom does not constitute a materially adverse employment action
due to Plaintiff’s failure to offer evidence concerning any detrimental impact on
her working environment, especially in light of her testimony that Z.L.’s bad
behavior continued after the new paraprofessional was hired.
Additionally, even if the events surrounding the paraprofessional could
constitute an adverse employment action, AIDB has offered unrebutted evidence
that: (1) a substitute was available; (2) a behavioral specialist was available; and
(3) the ten-week vacancy was within the normal time-frame required to hire a new
paraprofessional. Moreover, to the extent Plaintiff contends the absence of a
paraprofessional worsened Z.L’s behavioral problems, she testified Z.L.’s behavior
did not improve once a replacement was hired. Plaintiff has not offered any
argument or evidence to rebut AIDB’s proffered legitimate explanation of the
circumstances and, thus, cannot show pretext.
For the foregoing reasons, the temporary vacancy of the paraprofessional
position does not support a retaliation claim.
c.
Book
Plaintiff alleges Atkinson agreed to purchase a $165 book for her classroom
at some point prior to the incident with K.C.; at some point after the incident with
K.C., Atkinson reneged. In light of the unrebutted evidence that there were two
copies of the book in the library, the refusal to purchase the book did not constitute
36
an adverse employment action to support a retaliation claim. This is especially
true in light of Atkinson’s offer to allow Plaintiff to keep one of the library’s
copies in her classroom and—if that arrangement was unacceptable for some
unknown reason—the fact that Plaintiff could have allocated her classroom supply
funds to purchase her own copy.
Moreover, AIDB has offered unrebutted evidence that Atkinson: (1)
rescinded her promise to buy the book on advice from an AIDB bookkeeper; (2)
was unaware of Plaintiff’s EEOC charge at the time she made the decision; and (3)
also refused to purchase a copy of the same book for a white teacher who had
made a similar request. Accordingly, even if the refusal to purchase the book
could qualify as an adverse employment action, Plaintiff has not demonstrated
AIDB’s legitimate reasons for the decision were pretext for discrimination.
d.
Deep Fryers
Although unclear, it also appears Plaintiff may contend the confiscation of
her personal deep fryers supports her retaliation claim.
Confiscation and
temporary detention of personal cooking devices was not a “serious and material
change in the terms, conditions, or privileges” of Plaintiff’s employment as a
teacher. Davis, 245 F.3d 1232, 1239. Even if it were, causation is lacking
because it occurred approximately four months after Plaintiff filed her first EEOC
complaint. Finally, Plaintiff has not rebutted AIDB’s legitimate explanation that:
37
(1) an employee removed the unattended deep fryers from a common area where
they were left unattended; and (2) they were returned to Plaintiff undamaged. For
all of the foregoing reasons, none of the facts concerning Plaintiff’s deep fryers
support a claim for retaliation.
e.
Email
The day after the party, Atkinson sent Plaintiff an email reiterating that all
class parties required pre-approval and referring her to AIDB’s guidelines
regarding snacks. Plaintiff felt the email was retaliatory but, because she did not
receive any formal discipline as a result of the party, it was not an adverse
employment action. Indeed, the email is, if anything, a trivial harm which does not
give rise to a retaliation claim. See White, 548 U.S. at 67-68.
Also on April 2, 2015, Atkinson sent an email to all HKS staff reminding
them: (1) preapproval was required for parties; and (2) using deep fryers in the
building was not allowed. It appears Plaintiff contends AIDB’s explanation is
pretextual because a white teacher threw a party without pre-approval on May 19,
2015, but did not receive an email from Atkinson. However, AIDB has submitted
unrebutted evidence that Atkinson was unaware of the May 19, 2015 party. For
the foregoing reasons, Atkinson’s email does not support a claim for retaliation.
38
f.
Conclusion Regarding Retaliation
For the foregoing reasons, Plaintiff has not carried her prima facie burden to
sustain a claim for retaliation. Alternatively, Plaintiff cannot show any of the
legitimate reasons proffered by AIDB are pretextual. Accordingly, there are no
genuine issues of material fact, and AIDB is entitled to judgment as a matter of law
on the retaliation claim.
3.
Hostile Work Environment
A plaintiff asserting a hostile work environment claim must show: (1) she
belongs to a protected group; (2) she was subjected to unwelcome harassment; (3)
the harassment was based on her protected characteristic; (4) the harassment was
sufficiently severe or pervasive to alter the terms and conditions of her
employment and create a discriminatorily abusive working environment; and (5)
the employer is responsible for the hostile environment under a theory of vicarious
or direct liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th
Cir. 2002); Mendoza v. Borden, 195 F.3d 1238, 1245 (11th Cir. 1999). Whether
harassment was sufficiently severe or pervasive contains both an objective and a
subjective component. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21–22
(1993). To be actionable, the behavior must result in both an environment “a
reasonable person would find hostile or abusive” and an environment the victim
“subjectively perceive[s] . . . to be abusive.” Id.
39
In support of her hostile work environment claim, Plaintiff relies on Z.L.’s
classroom behavior, the confiscation of her deep fryers, and Atkinson’s email
following the birthday party. (Doc. 51 at 35). These conditions are not objectively
severe or pervasive, either singly or collectively.
To evaluate the objective
severity of harassment, courts 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. Allen v. Tyson
Foods, 121 F.3d 642, 647 (11th Cir. 1997). The court looks to the totality of the
circumstances instead of requiring proof of each factor individually. Harris, 510
U.S. at 23.
As the Supreme Court has emphasized, “the objective severity of
harassment should be judged from the perspective of a reasonable person in the
plaintiff's position, considering ‘all the circumstances,’” including “careful
consideration of the social context in which particular behavior occurs and is
experienced by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 81 (1998) (quoting Harris, 510 U.S. at 23).
Even assuming the confiscation of Plaintiff’s deep fryers and Atkinson’s
attendant email could be construed as racial harassment, they were discreet events.
As the Supreme Court has explained, “isolated incidents (unless extremely
serious)” are not tantamount to a hostile work environment. Faragher v. City of
40
Boca Raton, 524 U.S. 775, 788 (1988). Here, neither event was serious, much less
“extremely serious.” Id.; see Harris, 510 U.S. at 21 (hostile work environment
created only “[w]hen the workplace is permeated with discriminatory intimidation,
ridicule, and insult”). Objectively, neither event was physically threatening or
humiliating. Likewise, neither event would interfere with a reasonable person’s
job performance. Accordingly, neither the confiscation of the deep fryers nor
Atkinson’s email were objectively severe or pervasive.
Next, Plaintiff contends Z.L. directed racial epithets and insults at Plaintiff
and other students and threatened to harm and/or kill Plaintiff, other students, HKS
staff, Atkinson, and Mascia. Although Plaintiff does not allege the duration of
Z.L.’s behavior, the undisputed facts reveal it lasted, at most, from sometime after
her January 6, 2015 EEOC charge until the end of the school year in May 2015.
Neither does Plaintiff allege how often Z.L. used racial epithets or insults, which is
the only discernable basis on which Plaintiff contends Z.L.’s behavior was racially
motivated. Indeed, the fact that Z.L. made threatening statements against Mascia
and Atkinson, both of whom are white, indicates this aspect of his behavior was
not racially motivated. (See Doc. 37 at 6). Additionally, AIDB has offered the
previously-discussed evidence that it’s response to Plaintiff’s complaints regarding
Z.L.’s behavior was unaffected by Plaintiff’s race and that its options were limited
by parental resistance and governing law. Again, this evidence is unrebutted.
41
Turning to the objective severity of Z.L.’s behavior, the totality of the
circumstances does not support a conclusion that Plaintiff faced objectively severe
and pervasive harassment. As to frequency, Plaintiff has alleged Z.L’s conduct
occurred an unknown number of times, possibly over a five-month period. While
Plaintiff does not allege specific statements Z.L. made, she states he: (1) directed
unknown racial epithets and insults toward Plaintiff and other students; and (2)
made threatening statements concerning Plaintiff and the individual defendants.
However, there is no indication Z.L.’s behavior was physically threatening or
humiliating; rather, these were offensive utterances.
While the undersigned is unaware of factually analogous cases from within
the Eleventh Circuit, a decision from a district court in Delaware held similar
allegations—more severe but of shorter duration than Z.L.’s conduct here—of
harassment in the special education context were not objectively severe and
pervasive. Mongelli v. Red Clay Consol. Sch. Dist. Bd. of Educ., 491 F. Supp. 2d
467, 480-81 (D. Del. 2007) (special education teacher alleging student sexually
harassed her both physically—resulting in criminal charges—and verbally was not
subjected to severe and pervasive harassment). Additionally, given the social
context of Plaintiff’s role teaching a child with severe intellectual disabilities, a
reasonable person in her situation would not have been detrimentally affected by
the conduct described. See id.; Oncale, 523 U.S. at 81. As AIDB notes, Plaintiff’s
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job duties include “classroom management and maintaining discipline and order
among her students.” (Doc. 43-4 at 8).
Under the totality of the circumstances
here, Plaintiff has failed to show Z.L.’s conduct created a workplace “permeated
with discriminatory intimidation, ridicule, and insult.” Harris, 510 U.S. at 21.
For the foregoing reasons, there are no genuine issues of material fact, and
AIDB is entitled to judgment as a matter of law on Plaintiff’s hostile work
environment claim.
VI.
CONCLUSION
As noted above, the pending motion to strike is GRANTED IN PART and
DENIED IN PART. (Doc. 53). For all of the foregoing reasons, Defendants’
motions for summary judgment are GRANTED in their entirety. (Docs. 44, 46).
A separate order will be entered.
DONE this 13th day of September, 2019.
__________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE
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