Gadling-Coal v. Lagory et al

Filing 71

MEMORANDUM OPINION Signed by Judge Sharon Lovelace Blackburn on 9/23/15. (SMH)

FILED
2015 Sep-23 AM 11:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARNETTA GADLING-COLE,
Plaintiff,
vs.
THE BOARD OF TRUSTEES OF
THE UNIVERSITY OF ALABAMA,
Defendant.

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CASE NO. 2:12-CV-2882-SLB

MEMORANDUM OPINION
This case is presently pending before the court on defendant’s Motion for Summary
Judgment.

(Doc. 58.)1

Plaintiff Charnetta Gadling-Cole has sued her former employer,

defendant the Board of Trustees of the University of Alabama,2 alleging that the Board

1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record. Page numbers for documents refer to the page
number assigned by the court’s CM/ECF system, except as otherwise indicated.
2

Plaintiff brought this claim against the University of Alabama at Birmingham. (Doc.
30 at 1.) She filed a Motion to Amend, to which she attached a Fourth Amended Complaint,
in which she named the University of Alabama at Birmingham Board of Trustees. (See doc.
47-1 ¶ 4.) The University of Alabama System has one Board of Trustees, which governs
operations at all three campuses within the system – Tuscaloosa, Huntsville, and
Birmingham. See The Board of Trustees at <<http://uasystem.ua.edu/board-of-trustees>>
(“Established in 1969, The University of Alabama System includes The University of
Alabama (located in Tuscaloosa), The University of Alabama at Birmingham, and The
University of Alabama in Huntsville. The System is governed by a self-nominating Board
of fifteen elected and two ex-officio members.”). There is no separate entity known as the
University of Alabama at Birmingham Trustees. The proper entity to be named as a
defendant in this action is the Board of Trustees of the University of Alabama. (See doc. 49
at 2.)

discriminated against her on the basis of her race. Upon consideration of the record, the
submissions of the parties, the arguments of counsel, and the relevant law, the court is of the
opinion that the Board’s Motion for Summary Judgment, (doc. 58), is due to be granted.
I. SUMMARY JUDGMENT STANDARD
Pursuant to Fed. R. Civ. P. 56(a), summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once
the moving party has met its burden, the non-moving party must go beyond the pleadings and
show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986).

A dispute is genuine “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.

2

Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 (“it is never enough simply to state
that the non-moving party cannot meet its burden at trial”).
In deciding a motion for summary judgment, the court’s function is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial.” Anderson, 477 U.S. at 249. “[C]ourts are required to view the facts and draw
reasonable inferences ‘in the light most favorable to the party opposing the [summary
judgment] motion.’”

Scott v. Harris, 550 U.S. 372, 378 (2007)(quoting United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). Nevertheless, the non-moving party
“need not be given the benefit of every inference but only of every reasonable inference.”
Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)(citing Brown v.
City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)); see also Scott, 550 U.S. at
380 (“When opposing parties tell two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.”).
II. STATEMENT OF FACTS
The facts set forth in the defendant’s Brief in Support of the Motion for Summary
Judgment, (doc. 59), are deemed admitted. Exhibit A to the court’s Scheduling Order states:
The first section [of the non-moving party’s response to a Motion for summary
judgment] must consist of only the non-moving party’s disputes, if any, with
the moving party’s claimed undisputed facts. The non-moving party’s
response to the moving party’s claimed undisputed facts shall be in separately
numbered paragraphs that coincide with those of the moving party’s claimed
undisputed facts. Any fact that is disputed by the non-moving party must be
3

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. 43-1 at 4 [emphasis added; original emphasis omitted].) In Plaintiff’s Brief in
Opposition to Defendants’ Motion for Summary Judgment, Gadling-Cole contends, “Plaintiff
disagrees with Defendant[’s] [S]tatement of Facts as it relates to statement #34.3 Plaintiff
states she was terminated based on her race (Doc. No. 49, p. 2).” (Doc. 65 at 3 [footnote
added].)

Document 49 is this court’s Order striking Gadling-Cole’s Fourth Amended

Complaint. (See generally doc. 49.) The entirety of page two of document 49, cited as
Gadling-Cole’s evidentiary support for her claim that she was terminated because of her race,
provides the following:
Defendant argues that the individual parties dismissed without prejudice
by the court’s March 19, 2015 Order will suffer prejudice because “this matter
[is] on a fast track due to its age,” and each individually named defendant must
be re-served with a summons if the court grants plaintiff’s Motion to Amend.
([Doc. 48] at 4.) Defendant also argues that the Board will be prejudiced by
the amendment because there is insufficient time to investigate all new
allegations contained in the Fourth Amended Complaint. (Id. at 5.) Further,
defendant contends that “due to the current deadlines in the Scheduling Order,
it would be prejudicial to the proposed individual Defendants, and the Board,
to have to proceed in defending the claims against them before the Court even
had a chance to determine if the individual Defendants were immune from

3

Paragraph 34 states, “Based on Plaintiff’s overall performance as a faculty member
in 2009, 2010, 2011, and the Spring of 2012, Dr. Baker made the decision to not renew the
Plaintiff’s appointment as a UAB faculty member and to end Plaintiff’s employment
effective May 15, 2013.” (Doc. 59 at 9 [citing doc. 60-2 ¶¶ 45-51, 54, 62-66; doc. 60-3 ¶ 41;
doc. 60-4 ¶ 21].)
4

suit.” (Id. at 5-6.) Additionally, defendant notes that plaintiff added
“substantially new factual allegations in support of multiple new claims” and
that “[t]hese lengthy and significant new factual allegations are exactly the
kind of supporting facts this Court has been admonishing Plaintiff to assert for
the last 20 months.” (Id. at 6.)
The court finds that granting plaintiff’s Motion to Amend would be
substantially prejudicial to all named defendants in the Fourth Amended
Complaint. Therefore, plaintiff’s Motion is DENIED, and plaintiff’s proposed
Fourth Amended Complaint is STRICKEN WITH PREJUDICE. Hereafter,
this case is proceeding under Count One, the only remaining claim from
plaintiff’s Third Amended Complaint, (Doc. 30), which plaintiff asserted
against The Board of Trustees of the University of Alabama (again, incorrectly
named in the Third Amended Complaint as both “University of Alabama at
Birmingham” and “The Board of Trustees of the University of Alabama at
Birmingham”).
(Id. at 2 [emphasis in original].) Needless to say, this page of the court’s Order provides no
evidentiary support for Gadling-Cole’s contention that plaintiff was terminated because of
her race, and, therefore, it provides no ground to dispute paragraph 34 of defendant’s
Undisputed Relevant Material Facts.
Therefore, the following facts, set forth in defendant’s Undisputed Relevant Material
Facts, are deemed admitted for purposes of deciding its Motion for Summary Judgment:
1. In July, 2005, Dr. Lisa R. Baker (“Dr. Baker”) accepted an
appointment at the University of Alabama at Birmingham (“UAB”) as an
Assistant Professor (full-time, tenure earning) in the Department of
Anthropology & Social Work. [(Doc. 60-2 ¶ 9.)] Dr. Baker’s initial
appointment was for a two (2) year period, renewable annually. [(Id.)]
2. Dr. Baker was hired at UAB by Professor and Chair of the
Department of Anthropology & Social Work, Christopher Taylor, Ph.D.
[(Id.)]

5

3. At the time she was hired by UAB Dr. Baker already had her Ph.D.
for seven years. [(Id. ¶ 10.)]
4. At the time she was hired by UAB as an Assistant Professor, Dr. Baker
already had three (3) refereed (i.e. peer reviewed) publications; two (2)
non-refereed publications; four invited publications, and a history of funded
research projects and awards. [(Id. ¶¶ 23-26.)]
5. Dr. Baker worked for UAB as an Assistant Professor in the
Department of Anthropology & Social Work until September, 2011. [(Id. ¶
11.)] As an Assistant Professor she reported to Chris Walker (black female)
and Chris Taylor (white male). [(Id.)]
6. On March 15, 2011, Thomas Di Lorenzo, Dean of the College of
Arts and Sciences (“CAS”) at UAB, recommended to Dr. Eli I. Capilouto,
Provost, that Dr. Baker be promoted to Associate Professor with tenure. [(Id.
¶ 16.)] Provost Capilouto subsequently agreed with the recommendation and
granted Dr. Baker’s application for tenure and promotion. [(Id.)]
7. In October, 2011, Dr. Baker received tenure from UAB and was
promoted to Associate Professor. [(Id. ¶ 17.)]
8. Between 2005, the year Dr. Baker was hired at UAB, and 2011, Dr.
Baker was awarded six funded research awards as the Principal Investigator.
[(Id. ¶ 27.)]
9. In 2005, the year Dr. Baker was hired at UAB, Dr. Baker had a
refereed (peer-reviewed) publication. [(Id. ¶ 29.)]
10. Between 2005 and 2011 Dr. Baker submitted an additional nine
grant proposals, eight of which Dr. Baker was the Principal Investigator. [(Id.
¶ 28.)]
11. On January 1, 2011, Dr. William C. Cockerham (Dr. Cockerham”)
replaced Dr. Mark LaGory (“Dr. LaGory”) as Interim Chair of the Department
of Sociology and Social Work.4 [(Doc. 60-3 ¶ 9.)]

4

Effective October 1, 2009, the Social Department merged with the Sociology
Department. (Doc. 60-1 at 90.)
6

12. At the time Dr. Baker was promoted to Associate Professor, Dr.
Cockerham was the Chair of UAB’s Department of Sociology & Social Work.
[(Doc. 60-2 ¶ 17.)]
13. The Department of Sociology & Social Work was part of the
University of Alabama at Birmingham’s (“UAB”) College of Arts and
Sciences (“CAS”). [(Doc. 60-3 ¶ 8.)]
14. In October, 2011, UAB’s Department of Sociology and Social
Work split and became two departments. [(Doc. 60-2 ¶ 18; doc. 60-3 ¶ 10;
doc. 60-4 ¶ 18.)] The Department of Social Work became its own department.
[(Doc. 60-2 ¶ 18; doc. 60-3 ¶ 10; doc. 60-4 ¶ 18.)] The Department of
Sociology became its own department. [(Doc. 60-2 ¶ 18; doc. 60-3 ¶ 10; doc.
60-4 ¶ 18.)] Both Departments remained part of the CAS. [(Doc. 60-2 ¶ 18;
doc. 60-3 ¶ 10; doc. 60-4 ¶ 18.)]
15. In October, 2011, after UAB’s Department of Sociology and Social
Work split into two separate departments, Dr. Cockerham decided to step
down as Interim Chair. [(Doc. 60-2 ¶ 21; doc. 60-3 ¶ 12.)] The Department
of Social Work then needed a Chair. [(Doc. 60-3 ¶ 12.)]
16. Dr. Baker did not want to be Chair of the Department of Social
Work, but at the urging of faculty said she would accept that position. [(Doc.
60-2 ¶ 21.)]
17. Dr. Baker was appointed by the CAS Dean, Thomas M. DiLorenzo
(“Dr. DiLorenzo”), to the position of Chair of the Department of Social Work
effective October 1, 2011. [(Doc. 60-2 ¶ 22; doc. 60-3 ¶ 13; doc. 60-4 ¶ 19
and at 19-20.)
18. Dr. Baker served as Chair of the Department of Social Work for
approximately 14 months and then voluntarily stepped down. [(Doc. 60-2 ¶
22; doc. 60-3 ¶ 13.)]
19. After Dr. Baker stepped down from the position of Chair of the
Department of Social Work Dr. Cockerham resumed the role as Interim Chair
of the Department of Social Work until December 31, 2013. [(Doc. 60-2 ¶ 22;
doc. 60-3 ¶ 13.)]

7

20. On March 2, 2009, the Plaintiff was offered a full-time, tenure
earning appointment as an Assistant Professor in UAB’s Department of
Sociology and Social Work that would be effective August 15, 1999. [(Doc.
60-3 ¶ 17 and at 31; doc. 60-4 ¶ 12.)]
21. Plaintiff’s initial appointment as an Assistant Professor was for a
two-year period, renewable thereafter on an annual basis for five years or until
tenure was granted. [(Doc. 60-3 ¶ 17.)]
22. Under the terms of Plaintiff’s employment with UAB, and pursuant
to the provisions of the UAB Faculty Handbook, a tenure decision regarding
Plaintiff would be made no later than the end of the sixth year of employment,
which would have been August 2015. [(Doc. 60-3 ¶ 18; doc. 60-4 ¶ 13.)]
23. If tenure was not awarded at the end of the sixth year, Plaintiff’s
appointment would have been terminated May 14, 2016, which was the end of
the seventh academic year of employment. [(Doc. 60-3 ¶ 18.)] Tenure
requirements cover teaching, research, and service obligations. [(Id.)]
24. When Plaintiff was hired by UAB she had not yet completed her
Ph.D. [(Doc. 60-2 ¶ 43; doc. 60-3 ¶ 19.)]
25. Plaintiff was informed in her March 2, 2009, appointment letter 5
that if she did not complete the requirements for her doctoral degree by August
15, 2009, her appointment would revert to the rank of Instructor. [(Doc. 60-3
¶ 20; doc. 60-4 ¶ 13.)] The appointment as an Instructor would be for one
year. [(Doc. 60-3 ¶ 20; doc. 60-4 ¶ 13.)] If she had not completed the
requirements for the doctoral degree by February 15, 2010, her appointment
at UAB would not be extended past the initial two year period. [(Doc. 60-3 ¶
20; doc. 60-4 ¶ 13.)]
26. On July 7, 2010, Dr. LaGory issued Plaintiff a letter as a counseling
regarding her performance as a faculty member. [(Doc. 60-1 at 91-92.)] Dr.
LaGory’s letter stated Plaintiff’s 2009 performance was “good to average”, but
the Plaintiff “did not meet the principle expectations outlined in [her] contract
. . . .” [(Id. at 91.)] Plaintiff admitted nothing was incorrect about Dr.
LaGory’s letter. [(Doc. 60-1 at 13 [Gadling-Cole Depo. at 45-46].)]

5

(See doc. 60-3 at 31-32.)
8

27. Plaintiff failed to provide evidence of a doctoral degree by the
February 15, 2010, deadline.6 [(Do. 60-3 ¶ 21; doc. 60-4 ¶ 14.)] After several
approved extensions, she was issued a notice of termination of employment
dated October 14, 2010, by Dr. LaGory, the Department of Sociology and
Social Work Chair, and Dean DiLorenzo. [(Doc. 60-3 ¶ 21; doc. 60-4 ¶ 14.)]
This letter stated Plaintiff’s last day with UAB would be May 14, 2011. [(Doc.
60-3 ¶ 21; doc. 60-4 ¶ 14 and at 12.)]
28. Shortly after receiving the October 14, 2010 letter, Plaintiff
successfully defended her dissertation for a Ph.D. from Howard University.
[(Doc. 60-3 ¶ 22; doc. 60-4 ¶ 15.)] Plaintiff received another letter from Dr.
LaGory, dated November 19, 2010, acknowledging this accomplishment and
informing her the Department needed an official transcript and clarification on
her teaching schedule for the 2011 Spring semester. [(Doc. 60-3 ¶ 22; doc. 604 ¶ 15 and at 14.)]
29. On June 7, 2011, Dr. Cockerham gave Plaintiff her 2010 annual
faculty evaluation.7 [(Doc. 60-3 ¶ 31 and at 43-44.)]
6

In her Brief in Opposition to Defendant[’s] Motion for Summary Judgment, GadlingCole alleges that she was informed she was pregnant in January 2010. (Doc. 65 at 18.) She
has not pointed to any evidence why she was unable to meet the deadline for completing her
Ph.D. requirements by February 2010.
7

This evaluation stated, in part –

You had no publications in 2010, but have a book contract and two articles
invited for revision and resubmission. You are the only tenure-track faculty
member in the department who did not publish anything in 2010.
Consequently, your research [output] this year has not been noteworthy with
respect to published work; it is recognized, however, that you were pregnant
and also finished your Ph.D. dissertation at Howard University. You worked
on publishing, nonetheless, and this effort should pay off in 2011.
...
You had a teaching load of five courses. For the Spring Semester, you taught
SW 203 with a 4.0 score and SW 321 (Statistics for Social Work Research)
with a very low student . . . evaluation [score] of 2.1 that was the lowest in the
Department for any course taught by our faculty. This score was likely
9

30. On July 19, 2011, Dean DiLorenzo sent Plaintiff a letter offering
her a full-time regular appointment at UAB as an Assistant Professor in the
Department of Sociology and Social Work in the CAS. [(Doc. 60-4 ¶ 16 and
at 16.)]
31. Dean DiLorenzo’s July 19, 2011[,] letter stated Plaintiff was
receiving a tenure-track appointment with the term of her appointment to begin
on August 15, 2011[,] and extending through May 14, 2012, and Plaintiff was
responsible to Dean DiLorenzo and the Department Chair. [(Doc. 60-4 ¶ 17
and at 16-17.)]

affected by the subject matter and perhaps by your pregnancy, but nonetheless
it was much lower than the score for your other course (SW 203) that was
taught at the same time. Teaching statistics may not be one of your strengths.
...
You also taught eight independent study courses. Given the many demands on
your time, teaching so many of these courses is probably not a good idea. You
need to focus on your regular courses and publication.
Only the raw score in the student evaluations is reviewed since what is
measured by the adjusted score on the IDEA Short Form has not been
accurately determined. Overall, your course evaluations are mixed, ranging
from a high of 4.9 to a low of 2.1. What is suggested by those evaluations is
that your teaching online is received better by students than your classroom
teaching. You need to be aware of this when you go back into the classroom
and try to produce consistent results in both settings, especially if you teach
statistics again.
In sum, the chair’s view is that you had a positive record in 2010 and
potential for the future. You will be promoted to Assistant Professor on 1
October, 2011, and will need to publish regularly, continue your active level
of service, and be attentive to making any changes in teaching you think could
be worthwhile in order to have consistently good evaluations.
(Doc. 60-3 at 43-44.)
10

32. On April 27, 2012, Dr. Cockerham gave Plaintiff her 2011 annual
faculty evaluation which covered the period of time he supervised Plaintiff in
2011.8 [(Doc. 60-3 ¶ 37 and at 58-59.)]

8

This evaluation, which covers the period of January 2011 through September 2011,
states in pertinent part:
Your 2010 evaluation was ranked as positive (satisfactory), but not excellent
or outstanding as you received a particularly low student evaluation (2.1) for
SW 321 (Statistics for Social Work research) that was the worst in the
department by far and [you] were the only tenure-track faculty member with
no publications in print. You were ranked this way because your other course
evaluations were satisfactory, you showed activity with respect to publications,
and you held the low faculty rank of instructor. It was pointed out to you at the
time that you needed to improve in both teaching and research/publication
since you had completed your doctorate and were being promoted . . . .
Therefore, you were made aware of the requirement on your part to have a
strong year for 2011 in our last conversation, although you subsequently broke
off all contact with me in June, 2011, in part because you disagreed with my
2010 evaluation, which included face-to-face meetings, non-attendance at
faculty meetings, and unanswered emails.
You taught a total of three courses online (nothing in the classroom) during the
period when you were part of the combined sociology-social work department.
Your raw score[ ] for student evaluations for SW 203 (Social Welfare History)
[was] 3.8 in the spring and for two summer courses, SW 200 (Professional
Writing) and SW 203 (Social Welfare History), your scores were 4.1 and 3.8
respectively. While satisfactory, none of these evaluations equaled or
exceeded the overall average for the department for this time period (4.3 for
Spring, 4.2 for Summer). Evaluations for your online courses show a need for
some improvement to at least match the department’s average, while your
classroom performance is not rated.
...
You had no publications prior to October, 2011. However, it was my
understanding you were expecting a publication soon as a co-author in an
unranked (by SSCI) social work journal (Journal of Global Social Work
11

33. On May 11, 2012, Dr. Baker gave Plaintiff her 2011 annual faculty
evaluation which covered the period of time Dr. Baker supervised Plaintiff in
2011.9 [(Doc. 60-2 ¶ 62 and at 90-91.)]
Practice) and a book to be published by Adonis and Abby whose quality is
unknown.
In sum, your overall level of contribution during the [first] ten months in 2011
in which you were a member of the combined department was the lowest of
any serving faculty member.
Moreover, you showed yourself to be
extraordinarily uncooperative in discussing faculty business and ignored
attempts to offer you advice to improve your situation.
Consequently, I find your performance as a faculty member for the first ten
months of 2011 to be unsatisfactory and recommend that your current
department chair not reappoint you to a faculty position.
(Doc. 60-3 at 58-59 [emphasis in original].)
9

The evaluation prepared by Baker stated, in part:

Research/Scholarship
In 2011 you had one publication as first-author in the Journal of Global Social
Work Practice, an online, open-access peer review journal. You also had the
publication of a book that you had written prior to your appointment as
Assistant Professor. According to your FIF you did not submit any articles for
review in 2011 although you mention some that are in progress for 2012.
Given the publication process in social work journals you should be aiming for
1-2 publications in print or accepted for publication per year in order to
establish a research trajectory of accomplishments at UAB.
...
Your scholarly productivity over the past year has been low, in spite of
significant mentoring and workload reduction through the scholars[’]
programs. In addition, feedback that was received by the Center for Aging
reflected that you did not fulfill the requirements of either program, and that
there were significant concerns about your research and your willingness to
accept guidance and mentorship. While it is important that you continue to try
12

34. Based on Plaintiff’s overall performance as a faculty member in
to obtain funding it is also critical that grants and training awards result in
publications and that your efforts support a positive relationship between our
Department and other Centers on campus.
Teaching
In 2011 you had a teaching load of 5 courses. . . . In Fall you taught SW 200
with a score of 3.8 and SW 205 with a score of 4.2. Your teaching scores are
among the lowest in the Department. According to T & P guidelines student
evaluation[s] should be in the average to higher range of scores. Your scores
are in the average to below-average range. Student comments are mixed, with
positive as well as negative comments.
...
Service
...
In spite of strong service [to the community and the profession,] however, your
service to the Department needs significant improvement. You often delay or
refuse to provide substantive input on issues. You often begin a task (such as
policy development) but then do not follow-through in a timely manner or fail
to complete, resulting in other faculty needing to assume tasks on your behalf
in spite of the additional burden it places on their workload. You regularly
miss office hours and faculty meetings in spite of special accommodations for
your schedule and refuse to comply with requests made by the Chair. This was
most recently evidenced by your refusal to submit requested documentation for
this evaluation. In December, specific performance behaviors were brought
to your attention in a meeting with CAS HR. You have yet to resolve or make
progress on the improvement of these behaviors. In addition you often
disregard the [c]hain of administration and act on your own on issues that
reflect on the Department.
Overall you have failed to achieve sustained, cooperative, and contributing
effort in departmental service as required for tenure and promotion.
(Doc. 60-2 at 90-91.)
13

2009, 2010, 2011, and the Spring of 2012, Dr. Baker made the decision to not
renew the Plaintiff’s appointment as a UAB faculty member and to end
Plaintiff’s employment effective May 15, 2013. [(Doc. 60-2 ¶¶ 45-51, 54,
62-66; doc. 60-3 ¶ 41; doc. 60-4 ¶ 21.)]
35. On May 11, 2012, Dr. Baker gave Plaintiff notice that Plaintiff’s
appointment as an Assistant Professor would not be renewed10 and that

10

The letter to Gadling-Cole stating the reasons for the decision sets forth the
following:
The decision for non-renewal is based on the following performance
behaviors:
1.

You have generated only one peer[-]review publication in the past year
and do not currently have any publications under review for the
upcoming year.

2.

You have failed to meet required workload obligations in the
Department and have failed to fulfill requirements of other campus
training programs and obligations. . . .

3.

Your teaching evaluations are in the average to below average range.

4.

You have failed to demonstrate a record of sustained, cooperative, and
contributing effort in departmental, school and university work and
have failed to engage as an active member in Department service or
required activities. You often fail to complete Department workload
requests that are part of your job description and are non-compliant
with UAB policies and procedures.

5.

You have violated and disregarded the necessary chain of
administration and acted on your own without obtaining approval for
activities that impact the Department, or imply Department support.

6.

You consistently do not comply with requests from the Chair and
openly exhibit insubordinate, disrespectful and antagonistic behaviors
and communication. Such behavior is in violation of the UAB Code of
Conduct.
14

Plaintiff’s last day of employment with UAB would be May 15, 2013. [(Doc.
60-2 ¶ 64 and at 94.)]
36. Plaintiff’s employment with UAB ended on May 15, 2013. (Doc.
60-1 at 21 [Gadling-Cole Depo. at 80]; doc. 60-2 ¶ 63; doc. 60-12 at 2.)]
37.
Plaintiff filed four EEOC Charges regarding the alleged
discriminatory treatment by UAB during her employment, with said Charges
being dated July 6, 2011; October 6, 2011; November 15, 2011; and February
13, 2012. [(Doc. 60-1 at 77-85.)]
38. Plaintiff filed her Third Amended Complaint on May 15, 2014.
[(See doc. 30.)]
39. Pursuant to this Court’s May 19, 2015 Order, this case is
proceeding under only Count One of Plaintiff’s Third Amended Complaint.
[(Doc. 49 at 2.)]
(Doc. 59 at 3-10 [footnotes added].)
On July 8, 2011, Gadling-Cole filed an EEOC charge, alleging sex and race
discrimination and retaliation. (Doc. 60-1 at 77.) She alleged that Lagory and Cockerham
had harassed her and that they had failed to rewrite her contract to reflect that she had
received her Ph.D. (Id.)
On October 6, 2011, Gadling-Cole filed a second EEOC charge in which she alleged
race discrimination and retaliation from August 4, 2011 through September 29, 2011. (Id.

These issues have been repeatedly addressed and resources extended to assist
in correcting these behaviors. You have failed to correct, or take appreciable
steps to correct these issues, and have declined offers of mediated discussion
to reach resolution. As a result your behaviors reflect negatively on the
Department and have created an uncomfortable work environment.
(Doc. 60-2 at 94.)
15

at 79.) In this charge, she alleged that Cockerham had not submitted a letter of support for
her grant proposal, he had not submitted the required paperwork for an international course
she had developed, her on-line course was overloaded, she was denied relief time to
participate in certain programs, she did not get credit for or get paid for twelve independent
study courses, she did not receive a raise, and she did not receive information about the
transition to the social work department. (Id. 79-80.)
On November 14, 2011, she filed a third EEOC charge. (Id. at 82.) In this charge she
alleged that Dr. Baker retaliated against her, gave her false information in an attempt to
sabotage her proposed international center, and she “attempted to be unaware” of GadlingCole’s Kenya Coalition research agenda. (Id.) Gadling-Cole also alleged that Dr. Baker was
denying her “protected time” and adding administrative tasks to her work load. (Id.)
On February 13, 2012, Gadling-Cole filed a fourth EEOC charge. (Id. at 84.) The
charge alleged Baker had retaliated against her by giving her a written warning, making false
statements about her, removing her teaching assignment for a professional writing course,
sending her an harassing email, and telling Gadling-Cole that she was not trusted because she
had filed EEOC charges. (Id.)
Gadling-Cole did not file an EEOC charge alleging that her lack of mentoring and her
termination had been motivated by her race.

16

The EEOC issued right-to-sue letters on all four EEOC Charges on June 6, 2012. (Id.
at 78, 81, 83, 85.) Thereafter, on September 4, 2012, Gadling-Cole filed the instant action.
(See generally doc. 1.)
The only remaining claim in this case is a claim for race discrimination in violation
of Title VII against the Board as set forth in Gadling-Cole’s Third Amended Complaint,
which states:
30. Defendant UAB has discriminate[d] against the Plaintiff on the
basis of her race in violation of Title VII with regards to pay, job and work
assignments, discipline, evaluations, [t]ransfers and in all other conditions of
employment.
31. On May 11, 2012, Plaintiff had her faculty appointment as
Assistant Professor with the Department of Social Work cancelled and was
told that her last day of employment would be May 15, 2013.
32, Caucasian faculty member, Lisa Baker [white female], who upon
information and belief, had [a] less accomplished history of research, service,
and teaching was allowed to remain employed. Moreover, during the tenure
process, Dr. Baker received mentoring denied the Plaintiff and was allowed to
skip the requirement of publishing during the first two-years of her initial
contract. Upon information and belief, Dr. Baker was treated more
advantageously than the Plaintiff because of her race.
33. As a direct and proximate result of Defendant[’s] conduct, Plaintiff
has suffered and will continue to suffer lost wages and benefits, mental
anguish, emotional distress, and other damages due to Defendant[’s] acts . . .
. Defendant[’s] acts were intentional and/or taken with reckless indifference
to Plaintiff’s federally[-]protected rights, thus entitling Plaintiff to an award of
non-pecuniary damages.
(Doc. 30 ¶¶ 30-33.)

17

III. DISCUSSION
Because Gadling-Cole relies upon circumstantial evidence to prove her claims,11 the
court’s analysis is governed by the tripartite framework established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later refined in Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 142 (2000). The Supreme Court has explained this
framework as follows:
McDonnell Douglas and subsequent decisions have established an
allocation of the burden of production and an order for the presentation of
proof in . . . discriminatory-treatment cases. First, the plaintiff must establish
a prima facie case of discrimination. . . . The burden [then] shift[s] to [the
defendant] to produce evidence that the plaintiff was rejected, or someone else
was preferred, for a legitimate, nondiscriminatory reason. This burden is one
of production, not persuasion; it can involve no credibility assessment. [When
the defendant offers] admissible evidence sufficient for the trier of fact to
conclude that [the plaintiff suffered an adverse employment action for a
legitimate, nondiscriminatory reason], the McDonnell Douglas
framework--with its presumptions and burdens – disappear[s], and the sole
remaining issue [is] discrimination vel non . . . .
Although intermediate evidentiary burdens shift back and forth under
this framework, the ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff. And in attempting to satisfy this burden, the plaintiff – once
the employer produces sufficient evidence to support a nondiscriminatory
explanation for its decision – must be afforded the opportunity to prove by a

11

Gadling-Cole makes reference to other methods of proving a prima facie case of
discrimination – direct evidence and statistical proof, (doc. 65 at 12-13); however, she has
submitted no evidence – circumstantial, direct, or statistical – in support of her claim. She
filed a cover sheet for plaintiff’s “Exhibit 1. Affidavit of Dr. Cathy McElderry.” (Doc. 651.) However, nothing was filed with the cover sheet. (Id.)
18

preponderance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for discrimination. That
is, the plaintiff may attempt to establish that [she] was the victim of intentional
discrimination by showing that the employer’s proffered explanation is
unworthy of credence.
Id. at 142-43 (internal citations and quotations omitted).
a. Race Discrimination Prima Facie Case 12
The Board contends that Gadling-Cole’s race discrimination claims are due to be
dismissed because she cannot identify a proper comparator. (Doc. 59 at 14-19.) GadlingCole argues that she was treated less favorably than Lisa Baker, a white Associate Professor
and Chair of the Department of Social Work at the time Gadling-Cole was terminated, with
regard to mentoring and termination. (See doc. 65 at 13-16.) She does not name a specific
white professor or instructor treated more favorably with regard to her claims based on (1)
payment for teaching a summer course, (2) Cockerham’s initial refusal to write a letter
supporting her request for a faculty development grant, (3) the termination of her graduate
assistant, (4) over-booking her class, and (5) failure to pay her for developing a course/failure
to pay her for teaching independent study courses. (Id. at 16-17.)

12

The court notes that Gadling-Cole’s EEOC Charges were filed before her
termination and she did not amend her charge or file a new charge following her termination.
Also, she never complained about a lack of mentoring in any of her four EEOC charges.
Therefore, her Title VII claims based on these employment actions appear to be barred by
her failure to exhaust her administrative remedies. See Duble v. FedEx Ground Package
System, Inc., 572 Fed. Appx. 889, 893 (11th Cir. 2014). However, the Board has not moved
to dismiss these claims based on Gadling-Cole’s failure to exhaust her administrative
remedies; therefore, the court considers this ground for dismissal to have been waived.
19

“[A] plaintiff establishes a prima facie case of race discrimination under Title VII by
showing: (1) [she] belongs to a racial minority; (2) [she] was subjected to [an] adverse job
action; (3) [her] employer treated similarly situated employees outside [her] classification
more favorably; and (4) [she] was qualified to do the job.” Holifield v. Reno, 115 F.3d 1555,
1562 (11th Cir. 1997)(citing, inter alia, McDonnell Douglas Corp., 411 U.S. at 802).
With regard to plaintiff’s prima facie case, the parties dispute only whether GadlingCole can show the Board treated a similarly-situated white employee more favorably than it
treated Gadling-Cole.13 Thus, the court now turns its attention to whether, for each alleged
adverse employment action Gadling-Cole can show a similarly-situated white employee was
treated more favorably.
i. Payment for Teaching a Summer Course
Gadling-Cole argues, “Plaintiff’s position is that based upon past practices and the
information that had been provided to her she expected payment.” (Doc. 65 at 16 [citing doc.
60-1 at 30 (Gadling-Cole Depo. at 116)].) In her deposition, Gadling-Cole testified that
Chris Walker “indicated” that she would be paid for teaching two courses in the summer.

13

Defendant does not argue that one or more of plaintiff’s alleged adverse employment
actions did not rise to the level of an actionable employment action. In Title VII race
discrimination cases, “An employment action is considered ‘adverse’” – and thus actionable
– “only if it results in some tangible, negative effect on the plaintiff's employment.” Lucas
v. W.W. Grainger, Inc., 257 F.3d 1249, 1261 (11th Cir. 2001). Although it seems unlikely
that some of Gadling-Cole’s alleged wrong-doing had any tangible and/or negative effect on
her employment, defendant has not so argued. Therefore, the court assumes that the alleged
actions are actionable.
20

(Doc. 60-1 at 30 [Gadling-Cole Depo. at 116].) The Board presented sworn testimony that
plaintiff taught two classes in the summer of 2011 because she was required by “CAS
teaching load requirements” to teach two classes in Spring 2011, but she had only taught one.
(Doc. 60-3 ¶ 29.) “Accordingly, [Gadling-Cole taught two courses in the summer, but
received payment for only one.” (Id.) Cockerham testified that all faculty “have had to make
up courses owed to the Department without additional pay.” (Id.) Gadling-Cole has not
disputed this testimony or otherwise shown a white employee was treated more favorably.
The court finds that Gadling-Cole has not demonstrated that she was treated less
favorably than a white employee with regard to compensation for teaching a summer class.
Therefore, summary judgment will be granted as to this claim.
ii. Payment for developing a course and independent study
In the section of her brief responding to the Board’s motion to dismiss her claim based
on failure to pay her for independent study courses she taught, Gadling-Cole argues that the
Board pays white instructors for developing courses. (Doc. 65 at 17 [citing doc. 60-1 at 30
(Gadling-Cole Depo. at 116)].)

In her deposition, Gadling-Cole testified that all white

employees that had developed courses were paid, however, she did not identify any such
white employee by name. (Doc. 60-1 at 30-31 [Gadling-Cole Depo. at 116-17].) She did not
identify anyone who had been compensated for taking on independent study students. (See
id.) According to Cockerham, the Board does not pay faculty to develop courses. (Doc. 60-3

21

¶ 30.) Baker testified that she has never been compensated for taking on independent-study
students and she did not know of anyone who had been so compensated. (Doc. 60-2 ¶ 56.)
The court finds that Gadling-Cole has not demonstrated that she was treated less
favorably than a white employee with regard to compensation for independent study courses
or developing a course. Therefore, summary judgment will be granted as to this claim.
iii. Cockerham Recommendation
Gadling-Cole argues that Cockerham initially refused to support her in recommending
a grant proposal. (Doc. 65 at 16 [citing doc. 60-3 at 40, 41].) She contends, “Plaintiff[’s]
position is that the normal procedure was to support a professor[’s] proposal, however Dr.
Cockerham had to be pressured to support [her] proposal.” (Id. at 16-17.) The court notes
that the emails referenced by Gadling-Cole actually refute her claim that Cockerham
“refused” to recommend her proposal and “had to be pressured” into supporting it.14 (See

14

Gadling-Cole sent Cockerham an email on Saturday, March 12, 2011, asking him
for a letter of support for her faculty-development proposal. (Doc. 60-3 at 41.) On Monday,
March 14, 2011, Cockerham responded as follows:
In reference to your proposal:
1. Fix this sentence: [“]was la offers comprehensive report[.”]
2. Your budget is $8,840, with $5,000 coming from the school (change to
College and list correct College rep’s name (Scott Snyder)[)]. Snyder says the
College and Department will split the $5,000 match. However, since social
work and sociology are dividing, I can’t justify using $2,500 from sociology’s
special projects fund and social work does not have the money in its part of the
budget. There have not been returns to the Department from grant indirect
costs from social work. Are you planning on contributing $2,500 from your
22

doc. 6-3 at 40-41.) Indeed, Cockerham sent a letter in support of Gadling-Cole’s application
less than one week after her request. (Id. at 39.) Gadling-Cole’s citation to the emails
between herself and Cockerham does not demonstrate any adverse action and this evidence
does not support a finding that any white employee was treated differently under similar
circumstances.
The court finds that Gadling-Cole has not demonstrated that she was treated less
favorably than a white employee with regard to Cockerham’s recommendation of her
application for a faculty-development grant. Therefore, summary judgment will be granted
as to this claim.
iv. Research assistant terminated
Gadling-Cole argues that she was discriminated against on the basis of her race
because “her grad[uate] assistan[t] was terminated in the middle of one of her projects while
compiling data analysis.” (Doc. 65 at 17 [citing doc. 60-1 at 29 [Gadling-Cole Depo. at
111)].) In her deposition, Gadling-Cole testified, “I had a student who was serving as my

$5,000 faculty development money?
3. You also need to work on your proposal. The objective of your proposed
study is to see if grandparents as caregivers of children are aware of available
social services and you plan to publish the results in a journal. How does your
study contribute to the research literature? You need to review the literature
and state in your proposal what your study contributes.
(Doc. 60-3 at 40.) Gadling-Cole responded to this email, indicating that she would make the
changes suggested by Cockerham. (Id.)
23

[graduate assistant], who was actually working on . . . her master’s at the time in sociology.
Well, all of a sudden, she was terminated as my [graduate assistant], and I was unclear
why.”15 (Doc. 60-1 at 29 [Gadling-Cole Depo. at 111].) However, Cockerham testified,
“The white research assistant assigned to the Plaintiff was legitimately and properly
terminated from the graduate program for having failed two courses in psychology. Her
dismissal was not intended to cover up or balance the termination of a black graduate student
who was found to have plagiarized a class paper.” (Doc. 60-3 ¶ 27.) Gadling-Cole has
offered no evidence to indicate that other graduate assistants were not terminated if they were
terminated from their graduate program. Moreover, she has failed to present evidence of any
white instructor who was allowed to retain a graduate assistant that had been terminated from
his or her graduate program.
The court finds that Gadling-Cole has not demonstrated that she was treated less
favorably than a white employee with regard to the termination of her graduate assistant.
Therefore, summary judgment will be granted as to this claim.
v. Overloaded class
Gadling-Cole argues, “Defendant[ ] admit[s] Plaintiff had an overload of students
over the cap, however they have not produced any evidence that other faculty members were

15

Gadling-Cole testified elsewhere in her deposition that her graduate assistant told
her she was getting kicked out of the sociology graduate program because “they were
covering up the termination of this black student.” (Doc. 60-1 at 30 [Gadling-Cole Depo.
at 113].)
24

over the cap.” (Doc. 65 at 17 [citing doc. 60-3 ¶ 45].) This argument is refuted by the
evidence cited by Gadling-Cole, paragraph 45 of Cockerham’s Declaration.

In this

paragraph, Cockerham testified:
Neither I nor Dr. Baker was responsible for the enrollment into this online
course or the setting of course caps for the Fall, 2011 semester. The course in
question is SW 200, Professional [W]riting, a 200 level 2-credit hour course
which has in the past been capped at 25, however was capped at 35 for Fall,
2011. The only other course capped at 25 is SW 320, which Dr. Baker
routinely teaches. SW 320 is a 300 level 3-credit hour course that is
overloaded when needed to accommodate students, as it was overloaded by 2
students in the Fall. Courses have in the past had varying caps, with some
courses occasionally being overloaded as needed to ensure students stay on
track for graduation. All Social Work faculty have at one time had their
courses overloaded to accommodate students. I am personally aware [that] Dr.
Baker has taught classes that were overloaded.
(Doc. 60-3 ¶ 45.)
The court finds that Gadling-Cole has not demonstrated that she was treated less
favorably than a white employee with regard to teaching an over-booked class. Therefore,
summary judgment will be granted as to this claim.
vi. Mentoring
Gadling-Cole argues:
. . . Dr. Baker received mentoring that was not available to Plaintiff at UAB.
In fact the record is clear that the people who should have been available to
guide Plaintiff were in fact adverse to such as Dr. Mark LaGory. [(Doc.60-1
at 24-25 [Gadling-Cole Depo. at 92, 93]; Plaintiff Ex. 1 ¶¶ 14, 15.)]16

16

See, supra, note 11.
25

Although Plaintiff did have mentors at UAB they were persons Plaintiff
had to seek out not just for mentoring. Plaintiff needed mentors just to protect
her job. [(Doc. 60-1 at 24 [Gadling-Cole Depo. at 90]; Plaintiff Ex. 1 ¶¶
12-18.)]17 As Plaintiff stated Dr. Baker had mentors and the record will reflect
she was aided in publishing by mentors in the department, such as Dr. Sheila
Cotton. [(Doc. 60-2 ¶ 33.)]
(Doc. 65 at 16 [footnotes added].) The deposition testimony cited by Gadling-Cole does not
mention any mentoring program; it refers to LaGory “targeting” her during her pregnancy,
(doc.60-1 at 24-25 [Gadling-Cole Depo. at 92-93]), and her discussions with “Dr. Louis
Dale” and “Dr. Lucas” regarding retaliation, (id. at 24 [Gadling-Cole Depo. at 89-90]).
Moreover, Baker’s Declaration does not support any reasonable inference that UAB had a
mentoring program or that the Board was somehow responsible for any assistance Cotton
may have provided to Baker.18 (See doc. 60-2 ¶ 33.)
17

See, supra, note 11.

18

Baker testified:

32. At the time I was hired by UAB the Department of Anthropology
& Social Work had no formal mentoring process for new faculty members.
Similarly, there was no formal mentoring process in the Department of Social
Work or the Department of Sociology after they split in 2011.
33. Although there was no formal mentoring process, I did occasionally
seek out information and advice from Dr. Sheila Cotton, another faculty
member. The assistance I sought and received from Dr. Cotton was minimal.
34. Nothing prevented or prohibited other faculty members, including
the Plaintiff, from seeking information or advice from Dr. Cotton or any other
faculty member regarding achieving tenure, publications, community service,
professional responsibilities, research funding, submission of grant
applications, or similar academic/faculty issues.
26

The court finds it difficult to imagine that the type of assistance received by Baker
from Cotton, at Baker’s voluntary initiation, is an employment action of the Board.
Regardless, Baker is not similarly situated to Gadling-Cole. Clearly, Baker sought assistance
from a colleague; Gadling-Cole has not presented evidence that she also sought such
assistance and/or that she was refused help.
The court finds that Gadling-Cole has not demonstrated that she was treated less
favorably than a similarly-situated white employee with regard to a mentoring program.
Therefore, summary judgment will be granted as to this claim.
vii. Non-renewal of employment contract
The Board argues that Baker is not comparable to Gadling-Cole with regard to her
record of research, service, and teaching. (Doc. 59 at 15.) In support of her discharge claim,
Gadling-Cole argues, “Plaintiff can support her claim of race discrimination based on the
position Dr. Baker was hired for and the Plaintiff hiring regardless of the CV comparisons.
When Dr. Baker was hired versus Plaintiff they both were expected to follow the same career
path and or tenure-track at UAB.” (Doc. 65 at 13-14.) In support of her argument, GadlingCole compares her accomplishments with those of Baker during their first two years of
employment. However, Gadling-Cole and Baker had different supervisors; indeed, Baker
was the decision-maker with regard to Gadling-Cole’s termination.

“[D]ifferences in

treatment by different supervisors or decision makers can seldom be the basis for a viable

(Doc. 60-2 ¶¶ 32-34.)
27

claim of discrimination.” Silvera v. Orange County School Bd., 244 F.3d 1253, 1261 (11th
Cir. 2001)(citing Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1312 n.7 (11th
Cir.), opinion modified by 151 F.3d 1321 (11th Cir. 1998); Jones v. Gerwens, 874 F.2d 1534,
1541 (11th Cir. 1989); Cooper v. City of N. Olmsted, 795 F.2d 1265, 1271 (6th Cir. 1986);
Tate v. Weyerhaeuser Co., 723 F.2d 598, 605-06 (8th Cir. 1983)).
Nevertheless, the court assumes that Gadling-Cole can establish a prima facie of race
discrimination because “she cannot create a genuine issue of material fact as to whether [the
Board’s] proffered reasons for firing her are pretext masking discrimination.” Alvarez v.
Royal Atlantic Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010)(citing Scott v.
Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir. 2002)).
4. Articulated Non-discriminatory Reasons and Pretext
The Board asserts the following reasons why Gadling-Cole was terminated:
[1] Plaintiff had no publications in 2010. [(Doc. 60-3 at 43-44.)]19
[2] Plaintiff was the only tenure-track faculty member in 2010 in the
Department of Sociology and Social Work who did not publish anything in
2010. [(Id.)]
[3] Plaintiff had the lowest student course evaluation in 2010 in the
Department of Sociology and Social Work for SW 321. [(Id.)]

19

In support of this reason for Gadling-Cole’s non-renewal defendant cites Ex. 7, pp.
00502-508. The Bates-stamped pages are actually found in defendant’s exhibit 8, (see doc.
60-12 at 55-61), and appear to be plaintiff’s resume from 2009.
28

[4] Plaintiff was told in her 2010 annual evaluation she needed to
publish regularly and make any necessary changes to have consistently good
teaching evaluations. [(Id.; doc. 60-15 at 21-25.)]
[5] Plaintiff’s student evaluation scores in 2011 did not exceed the
average for the Department of Social Work. [(Doc. 60-3 at 58; doc. 60-2 ¶¶
48-49.)]
[6] Plaintiff had no publications prior to October, 2011. [(Doc. 60-3
at 59.)]
[7] Plaintiff’s level of contribution during the first ten months of 2011
was the lowest of any serving faculty member in the Department of Sociology
and Social Work. [(Id.)]
[8] Plaintiff was uncooperative in discussing faculty and Department
business. [(Id.)]
[9] Plaintiff’s research and scholarship productivity in 2011 was low.
[(Doc. 60-2 at 90; doc. 60-15 at 19.)]
[10] Plaintiff’s teaching scores in 2011 were among the lowest in the
Department of Social Work. [(Doc. 60-2 ¶¶ 48-49 and at 90-91, 94; doc. 6015 at 19.)]
[11]
Plaintiff’s service to the Department and interaction with
colleagues was subpar. [(Doc. 60-2 at 91, 94; doc. 60-9 at 58, 62-65.)]
[12]
Plaintiff’s participation in the Health Disparities Research
Training Program (“HDRTP”) was problematic both in attendance and with
a grant, and Plaintiff only participated in 60.7% of the Resource Center for
Minority Aging Research (“RCMAR”) learning sessions. [(Doc. 60-5 ¶¶ 5-8
and at 7.)]20

20

Exhibit A to Allman’s Declaration, (doc. 60-5 at 7), is an email to Gadling-Cole and
states “Based upon feedback from the content reviewers, the RCMAR Executive Committee
does NOT endorse submission of your proposal to the Hartford Foundation. I cannot serve
as a mentor for this proposal. Submission of this proposal will NOT fulfill the requirements
of the RCMAR health disparities Research Training Program.” Therefore, it does not
29

[13] Plaintiff’s participation in the Geriatric Education Center Faculty
Scholar Program (“GEC FSP”) was poor. [(Id. ¶ 9 and at 9.)]21
[14] Plaintiff failed to meet expectations for a tenure-track faculty
member. [(Doc. 60-2 at 91; doc. 60-3 at 59; doc. 60-9 at 58, 62-65; doc. 60-16
at 11-15, 48; doc. 60-17 at 19.)]
(Doc. 59 at 20-22 [footnotes added].)
These reasons, supported by record evidence, are sufficient to meet the Board’s
burden of production.

support defendant’s assertion. However, Exhibit B, (doc. 60-5 at 9), Allman’s email to
Baker, specifically states:
In regard to HDRTP, as we previously discussed, I informed Charnetta by
email . . . that her proposal for the Hartford Foundation Geriatric Social Work
Program was NOT approved for submission . . . by the [RCMAR] Executive
Committee. I also told her that I could not be a mentor for this proposal. Her
HDRTP mentor met with Charnetta on Monday . . . and told her the proposal
was not ready for submission. The [HDRTP] mentor told Charnetta that she
could not a mentor for the proposal if Charnetta chose to proceed with [the]
submission at this time. The HDRTP mentor also explicitly told Charnetta that
she would have to remove the previously drafted letters of support from me
and her and replace any references to us as mentors if Charnetta did choose to
submit the proposal despite our objections. Obviously, this is very upsetting
to me and the faculty member that had . . . agreed to help Charnetta as the
HDRTP mentor. Charnetta has attend[ed] 60.7% of the scheduled RCMAR
learning sessions.
(Id.)
21

In an email to Baker, Allman of the GEC Faculty Scholar Program noted (1)
Gadling-Cole had attended only one conference session, (2) she had missed the last all-day,
in-person education session, (3) she did not actively participate in the Group CME Project,
and (4) she did not submit her quarterly reports or participate in monthly progress reports
with Allman. (Doc. 60-5 at 9.) In his email Allman stated that these were program
requirements. (Id.)
30

5. Pretext
The law in this circuit is well established: A plaintiff may not establish pretext merely
by quarreling with the wisdom of the alleged discriminatory and/or retaliatory decision.
Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997). “A plaintiff may show
pretext by either directly persuading the court that a discriminatory reason motivated the
employer, or by indirectly showing that the employer’s proffered explanation is unworthy of
credence.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). The
relevant inquiry on the issue of pretext is “highly focused” – “The district court must, in view
of all the evidence, determine whether the plaintiff has cast sufficient doubt on the
defendant’s proffered nondiscriminatory reasons to permit a reasonable factfinder to
conclude that the employer’s proffered legitimate reasons were not what actually motivated
its conduct.” Combs, 106 F.3d at 1537-38 (11th Cir. 1997)(citing Cooper-Houston v.
Southern Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994)).22 When a defendant offers more than

22

In Combs, the Eleventh Circuit held:

In relying on [the comparator’s] financial improprieties to undermine
[defendant’s] explanation that it based its promotion decision on [the
comparator’s] superior supervisory experience, [plaintiff] confuses
disagreement about the wisdom of an employer’s reason with disbelief about
the existence of that reason and its application in the circumstances.
Reasonable people may disagree about whether persons involved in past
financial improprieties should be made supervisors, but such potential
disagreement does not, without more, create a basis to disbelieve an
employer’s explanation that it in fact based its decision on prior non-financial
supervisory experience. [Defendant’s] decision to promote [the comparator]
instead of [plaintiff] may seem to some to be bad business judgment, and to
31

one reason for the challenged action, the plaintiff is entitled to survive summary judgment
if there is sufficient evidence to demonstrate the existence of a genuine issue of fact as to the
truth of each of the employer’s proffered reasons for its challenged action. Id. at 1529; see
also Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th Cir. 2007)(“If the employer
proffers more than one legitimate, nondiscriminatory reason, the plaintiff must rebut each of
the reasons to survive a motion for summary judgment.” (citing Chapman v. AI Transp., 229
F.3d 1012, 1037 (11th Cir. 2000))).
“To satisfy this threshold showing of pretext, a plaintiff may discredit the employer’s
proffered legitimate reasons by showing (1) that the proffered reasons [have] no basis in fact,
(2) that the proffered reasons did not actually motivate the employment decision, or (3) that
they were insufficient to motivate the employment decision.” Walk er v. NationsBank of
Florida N.A., 53 F.3d 1548, 1564 (11th Cir. 1995)(Johnson, J, concurring)(citations omitted).
However, “If the proffered reason is one that might motivate a reasonable employer, a
plaintiff cannot recast the reason but must meet it head on and rebut it.”

Springer v.

Convergys Customer Management Group Inc., 509 F.3d 1344, 1350 (11th Cir. 2007)(quoting

others to be good business judgment, but federal courts do not sit to
second-guess the business judgment of employers.
Stated somewhat
differently, a plaintiff may not establish that an e mployer’s proffered
re ason is pretextual merely by questioning the wisdom of the employer’s
reason, at least not where, as here, the reason is one that might motivate
a reasonable employer.
Combs, 106 F.3d at 1543 (11th Cir. 1997)(italic emphasis in original; bold emphasis added).
32

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir.2004)). “In other words, it
does not matter whether the plaintiff is actually innocent of the infraction for which the
adverse employment action is taken; the only relevant inquiry is whether the employer
believes he is guilty.” Masso v. Miami-Dade County, 247 Fed. Appx. 190, 192 (11th Cir.
Sept. 6, 2007)(emphasis added).23 “No matter how medieval [an employer’s] practices, no
matter how high-handed its decisional process, no matter how mistaken [its] managers, [Title
VII ] does not interfere. Rather [the court’s] inquiry is limited to whether the employer gave
an honest explanation of its behavior.” Chapman, 229 F.3d at 1030 (quoting Elrod v. Sears,
Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991))(other citations omitted).
a. Plaintiff had no publications in 2010.
In response to this articulated reason for her termination, Gadling-Cole contends,
“Plaintiff received notice that she was pregnant in January 2010 and had an extreme[ly]
difficult pregnancy with twins being born in September 2010. Plaintiff was on the family
medical leave starting in the fall of 2010 and continuing until January 2011.

[(Doc. 60-1 at

15 [Gadling-Cole Depo. at 53].)”24 (Doc. 65 at 18-19.)
23

Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
24

In her cited deposition testimony, plaintiff testified that she had satisfied the
condition of her employment contract – to complete her Ph.D. – in November 2010 while she
was on family-medical leave:
Q. . . . On October 14, 2010, had you satisfied the conditions of your
33

Gadling-Cole’s response may show a reason for her lack of publications in 2010, but
it does not show that the Board did not rely on this lack of publications, together with the
lack of publications in 2011, as a reason for the non-renewal of her contract. Indeed, in her
2010 evaluation, Cockerham noted that consideration was given for her lack of publications
in 2010, and that her “effort should pay off in 2011,” (see doc. 60-3 at 43), which did not
happen.
The court finds that Gadling-Cole has not rebutted this articulated reason for her
termination.
b. Plaintiff was the only tenure-track faculty member in 2010 in the
De partment of Sociology and Social Work who did not publish anything
in 2010.
Gadling-Cole argues, “Plaintiff had to endure a very difficult pregnancy and was on
[F]amily Medical [L]eave for several of months. During the time Plaintiff was out . . . [she]
continued her research and teaching. Plaintiff had to go through surgeries associated with

original hire agreement?
A. No. That was satisfied November 2010.
Q. Okay.
A. While I was still on FML, at that time as well.
(Doc. 60-1 at 15 [Gadling-Cole Depo. at 53].)
34

the defects and her newborn twins [sic] and return to Howard University to defend her
dissertation. [(Doc. 60-4 ¶ 15.)]”25 (Doc. 65 at 19.)
In her 2010 faculty evaluation, Cockerham informed Gadling-Cole that she was “the
only tenure-track faculty member in the department who did not publish anything in 2010.”
(Doc. 60-3 at 43.) Gadling-Cole has not rebutted this fact. Moreover, Cockerham noted that
in 2010 she was pregnant and that she had defended her dissertation; however, he expected
Gadling-Cole to publish in 2011, which she did not do. Gadling-Cole has not shown that
Baker did not rely of her lack of publication as compared to other employees in deciding not
to renew plaintiff’s contract.
Gadling-Cole has not rebutted this reason for the non-renewal of her contract.
c. Plaintiff had the lowest s tude nt course evaluation in 2010 in the
Department of Sociology and Social Work for SW 321.
Gadling-Cole argues, “Plaintiff did publish and made numerous changes to improve
her teaching evaluations.

25

Plaintiff also attempted to interact with supervisory personnel

The cited testimony from DiLorenzo’s Declaration provides:

15. Shortly after receiving the October 14, 2010[,] letter [from then
Department Chair LaGory terminating her employment for failing to show she
had received her Ph.D.], the Plaintiff successfully defended her dissertation for
a Ph.D. from Howard University. She received another letter from Dr.
LaGory, dated November 19, 2010, acknowledging this accomplishment and
informing her that the Department needed an official transcript and
clarification of her teaching schedule for the 2011 Spring semester. . . .
(Doc. 60-4 ¶ 15.)
35

including Lisa Baker however the atmosphere had become very volatile in the
department-based [on] Plaintiff's allegations of racial discrimination.26

[(Doc. 60-1 at 33

[Gadling-Cole Depo. at 128].)” 27 (Doc. 65 at 19.)
The undisputed evidence demonstrates that Gadling-Cole had the lowest student
evaluations. The fact the Board did not excuse her low score based on the fact that she made
changes to her teaching style does not result in an inference that Baker did not base her
decision to terminate Gadling-Cole on her low student evaluations. Also, Gadling-Cole’s
26

Plaintiff does not have a claim for retaliation.

27

Plaintiff’s testimony at this page of her deposition does not support her assertion that
she had published and/or made changes to her teaching methods, or that she had attempted
to interact with Baker:
. . . However, [Baker] must have been informed something negatively with
regards to [Gadling-Cole] because she therein went and met with Dr. Cathy
McElderry in her office . . . . And she was trying to get her to go against me
in some realm, and Cathy refused. So Lisa Baker started crying, stormed out
of the office saying[, “]I know whose team you’re on now, whose side you’re
on.[”] And from then on, there were issues with Lisa Baker and Cathy
McElderry. She immediately came in and . . . was just treating us as if we
were children, to say the least, the microaggressions that she demonstrated
towards both of us. And then the communications that she had with
DiLorenzo because she was our spokesperson at the time, I was not privy to
those. She would send them to Cathy. Cathy . . . was like[, “]should you have
shared this information with [Gadling-Cole].[”] And she was like, [“]well, go
ahead and send it to her.[”] . . . [A]nd as I’ve stated, I know that Lisa Baker
had been communicating as had Cockerham with LaGory. Lisa Baker did
share with me that there were a number of negative comments that LaGory
shared with her concerning me, and that she didn’t go like that, is what she
said. She didn’t – until the only time we . . . had dialogue thereafter after
submitting my EEOC complaints, that’s when it really went down.
(Doc. 60-1 at 33-34 [Gadling-Cole Depo. at 127-29].)
36

evidence that her work environment was volatile because of retaliation does not rebut the fact
that plaintiff had the lowest student evaluation in the Department or that Baker relied on the
low scores as one of the reasons to terminate Gadling-Cole. This evidence does not support
an inference that the reason for plaintiff’s non-renewal was race discrimination.
Therefore, the court finds that Gadling-Cole has not rebutted this reason for her nonrenewal.
d. Plaintiff was told in her 2010 annual evaluation she ne e de d to publish
regularly and make any necessary changes to have consistently good
teaching evaluations.

Gadling-Cole argues, “Plaintiff after returning to work had engaged in substantial
work as it relates to publications and other areas in her [quest] for tenure [(Doc. 60-1 at 21
[Gadling-Cole Depo. at 78].)]”28 (Doc. 65 at 19.)
In her 2010 evaluation, Cockerham told Gadling-Cole she “need[ed] to publish
regularly . . . and be attentive to making any changes [she thought] could be worthwhile in
order to have consistently good evaluations.” (Doc. 60-3 at 44.) The record is undisputed

28

The deposition testimony cited by plaintiff does not address the amount of work
plaintiff engaged in with regard to publishing or improving her student evaluations. (See
doc. 60-1 at 21 [Gadling-Cole Depo. at 78].) This testimony, during questioning regarding
her 2011 evaluation performed by Baker, concerned Baker’s failure to note plaintiff’s
appointment as a scientist at UAB’s Centers for AIDS Research and for Aging and
something called “Global Scholars” on her 2011 evaluation by Baker; she also complained
that Baker did not note she and another professor were working on the protocol for “the
International Minority Health and Disparities Research Training Program.” (Id. at 19, 21
[Gadling-Cole Depo. at 72, 78].)
37

that Cockerham told Gadling-Cole that she needed to publish in 2011 and to improve her
student evaluations.

Gadling-Cole’s opinion that her work toward these objectives was

“substantial” does not rebut the Board’s assertion that Baker relied on this factor in her
decision not to renew Gadling-Cole’s contract.
Therefore, the court finds that Gadling-Cole has not rebutted this reason for her nonrenewal.
e. Plaintiff’s student evaluation scores in 2011 did not exceed the average
for the Department of Social Work.
Gadling-Cole argues that her “evaluation scores were only marginal[ly] lower than
the other department instructors. [(Doc. 60-2 ¶ 49 [plaintiff’s average evaluation score was
3.9; the next lowest score was 4.1; Baker’s score was 4.6].)]” (Doc. 65 at 19.) Obviously,
“marginally lower” is still “lower.”

Gadling-Cole’s contention appears to be that the

difference in her student evaluations and those of her colleagues was not enough to warrant
her dismissal. However, this court is not allowed to question the wisdom an employer’s
decision. See Chapman, 229 F.3d at 1030 (quoting Elrod, 939 F.2d at 1470). Given there
is undisputed evidence that Gadling-Cole had once again received the lowest score in the
Department and in June 2011 she had been told to make the necessary changes to raise her
student evaluations, evidence of the difference between Gadling-Cole’s scores and the nextlowest Department member is not sufficient to show that the reason did not actually motivate
Baker in her decision not to renew plaintiff’s contract.

38

Therefore, the court finds that Gadling-Cole has not rebutted this reason for her nonrenewal.
f. Plaintiff had no publications prior to October, 2011.
Gadling-Cole argues, “As of October 2011 Plaintiff had only been employed
approximately two years. Plaintiff had gone to a very difficult pregnancy[,] completed her
dissertation and had been off several months on the family medical leave. [(Doc. 60-1 at 15
[Gadling-Cole Depo. at 53].)]”29 (Doc. 65 at 19.)
This evidence does not rebut Baker’s reason for her decision not to renew plaintiff’s
contract. Although Gadling-Cole may believe that she should have received a pass in the
publishing requirement based on her pregnancy and defense of her dissertation in 2010, as
well as her length of employment, the Board did not agree. Indeed, in her 2010 evaluation,
she was informed that she was required to publish in 2011, yet, she did not publish anything
before October 2011.
The court finds that Gadling-Cole has not rebutted this reason for her non-renewal.
g. Plaintiff’s level of contribution during the first ten months of 2011 was
the lowest of any serving faculty member in the Department of Sociology
and Social Work.
Gadling-Cole states that she “disagrees” with this articulated reason and that “her
contributions were equal to other department members however the department chose to

29

See, supra, note 24.
39

recognize what they consider were important contributions. [(Doc. 60-1 at 16, 18 [GadlingCole Depo. at 59, 66].)]”30 (Doc. 65 at 20.)
Plaintiff’s statement of her opinion, together with her concession that Baker had
“recognize[d] what [she] consider[ed to be] important,” is insufficient to rebut defendant’s
articulated reason. See Green v. City of Northport, 7:11-CV-2354-SLB, 2014 WL 1338108,
*16 (N.D. Ala. March 31, 2014)(quoting Wilson, 376 F.3d at 1092).
h. Plaintiff was uncooperative in discussing faculty and Department
business.
Gadling-Cole states that she “disagrees that she was uncooperative in discussing
faculty and department business and that the department had become dysfunctional not at the
hands of Plaintiff. [(Doc. 60-1 at 33 [Gadling-Cole Depo. at 128].)]”31 (Doc. 65 at 20.)
Gadling-Cole’s disagreement is insufficient to establish that this articulated reason did
not motivate Baker to terminate her. See Green, 2014 WL 1338108, *16 (quoting Wilson,
376 F.3d at 1092).
Therefore, the court finds that Gadling-Cole has not rebutted this reason for her nonrenewal.

30

In her deposition, plaintiff testified that Cockerham left out her grants from the
Center for AIDS Research and her book from her 2011 evaluation. (Doc. 60-1 at 16, 18
[Gadling-Cole Depo. at 59, 66].) However, plaintiff has not directed the court to any
evidence that her book was published before October 1, 2011.
31

See, supra, note 27.
40

i. Plaintiff’s research and scholarship productivity in 2011 was low.
Gadling-Cole states that she “disagrees that her research and scholarship productivity
in 2011 was low. [(Doc. 60-1 at 16, 18 [Gadling-Cole Depo. at 59, 66].)]”32 (Doc. 65 at 20.)
Again, plaintiff’s disagreement with the articulated reason is not sufficient evidence
to rebut this reason or to otherwise show that it did not motivate the Board. See Green, 2014
WL 1338108, *16 (quoting Wilson, 376 F.3d at 1092). Moreover, the cited deposition
testimony does not raise an inference that Baker did not rely on this reason in making her
decision to terminate plaintiff.
j. Plaintiff’s teaching scores in 2011 were among the lowest in the
Department of Social Work.
Gadling-Cole argues, “Plaintiff agrees that her teaching scores were among the lowest
in the department and states the composition of the class is a vital element of those scores.”
(Doc. 65 at 20.) She, therefore, has admitted the truth of this articulated reason. Also, she
has offered no citation to record evidence to show that this articulated reason did not
motivate Baker not to renew her contract.
Therefore, the court finds that Gadling-Cole has not rebutted this reason for her nonrenewal.

32

See, supra, note 30.
41

k. Plaintiff’s service to the Department and inte raction with colleagues
was subpar.

Gadling-Cole “disagrees” with this articulated reason and she states that she
“interacted with her colleagues more than Dr. Baker. [(Doc. 60-1 at 33 [Gadling-Cole Depo.
at 128].)]”33 (Doc. 65 at 20.)
The cited testimony does not rebut the articulated reason or support an inference that
Gadling-Cole interacted with her colleague more than Baker did.

Again, plaintiff’s

disagreement with the articulated reason is not sufficient evidence to rebut this reason or to
otherwise show that it did not motivate Baker.
l. Plaintiff’s participation in the Health Disparities Research Training
Program (“HDRTP”) was problematic both in attendance and with a
grant, and Plaintiff only participated in 60.7% of the Resource Center for
Minority Aging Research (“RCMAR”) learning sessions.
“Plaintiff disagrees that her participation in the Health Disparities Research Training
Program (“HDRTP”) was problematic.

33

This position was voluntary and there were no

See, supra, note 27.
42

guidelines for participation. [(Doc. 60-1 at 19 [Gadling-Cole Depo. at 71, lines 18-23].)]”34
(Doc. 65 at 20.)
Plaintiff’s disagreement is insufficient to rebut this reason, particularly in light of
Baker’s receipt of an e-mail from Richard Allman, head of these programs, in which he
stated that Gadling-Cole had “not been fulfilling the requirements of [the] program.” (Doc.
60-5 at 9.) This e-mail shows that Allman believed that the HDRTP had requirements and
that Gadling-Cole’s participation did not fulfill the program’s requirements. (Id.)

Gadling-

Cole has not presented any evidence that Baker did not rely upon this information from
Allman in making her decision not to renew Gadling-Cole’s contract.
Therefore, the court finds that Gadling-Cole has not rebutted this articulated reason
for her non-renewal.

34

Plaintiff’s deposition testimony at these lines is as follows:

. . . Because I had a number of service[s] . . . that I was involved in throughout
the Center for Aids Research, through the Center for Aging, through
developing the office of Global Social Service Research, which she fought left
and right. So, yes, this is basically in retaliation to the fact that I have filed the
EEOC complaints.
(Doc. 60-1 at 19 [Gadling-Cole Depo. at 71, line 18, to 72, line 2].) This testimony does not
support plaintiff’s contention that HDRTP did not have guidelines for participation.
43

m. Plaintiff’s participation in the Geriatric Education Ce nter Faculty
Scholar Program (“GEC FSP”) was poor.
Gadling-Cole, again, “disagrees” with the defendant’s articulated reason. (See doc.
6 at 20.) She contends, “The position was voluntary and there were no guidelines for
participation. [(Doc. 60-1 at 19 [Gadling-Cole Depo. at 71, lines 18-23].)”35 (Doc. 65 at 20.)
Like the articulated reason based on the HDRTP, Baker’s articulated reason was based
on information from Allman that Gadling-Cole failed to meet the obligations of the position
in the GEC Faculaty Scholar Program – including that she (1) only attended one of the
required conference sessions, (2) failed to attend a required in-person education session, (3)
failed to participate in her group continuing education project newsletter, and (4) failed to
submit quarterly progress reports and communicate with Allman on a monthly basis
regarding the program’s progress. (Doc. 60-5 at 9.) Obviously, Allman did not consider
attendance and participation to be voluntary and unstructured. Moreover, he communicated
his displeasure with Gadling-Cole to Baker and there is no evidence that Baker did not
consider his complaints in making her decision not to renew plaintiff’s contract.
Therefore, the court finds that Gadling-Cole has not rebutted this articulated reason
for her termination.

35

See, supra, note 34.
44

n. Plaintiff failed to meet expectations for a tenure-track faculty member.
Gadling-Cole argues, “Plaintiff disagrees that she failed to meet expectations for a
tenure-track faculty member. Plaintiff's progress during the same time frame was equal to or
greater than Dr. Baker.” (Doc. 65 at 21.)
Her disagreement notwithstanding, for the reasons set forth above, which will not be
repeated here, the court finds that Gadling-Cole has not shown that she met Baker’s
expectations for a tenure-track faculty member.
Based on the foregoing, the court finds that Gadling-Cole has not presented evidence
sufficient for the court to find that each articulated reason for her termination is unworthy of
credence and that the real reason was her race. Therefore, defendant’s Motion for Summary
Judgment will be granted as to plaintiff’s termination claim.

45

CONCLUSION
For the foregoing reasons, the court is of the opinion that there are no material facts
in dispute and defendant is entitled to judgment as a matter of law. An Order granting
defendant’s Motion for Summary Judgment, (doc. 58), will be entered contemporaneously
with this Memorandum Opinion.
DONE this 23rd day of September, 2015.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

46