Mayes v. Birmingham City Schools
Filing
34
MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 3/24/20. (MRR, )
FILED
2020 Mar-24 AM 09:33
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DEBORA J. MAYES,
Plaintiff,
v.
BIRMINGHAM CITY SCHOOLS,
Defendant.
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Case No.: 2:17-cv-01968-SGC
MEMORANDUM OPINION1
This is an employment discrimination case. The plaintiff, Dr. Debora J.
Mayes, claims the defendant, Birmingham City Schools, discriminated against her
based on her age, in violation of the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. §§ 621 – 634 (the “ADEA”). (Doc. 1). She also asserts a
state law claim for breach of contract against the defendant. (Id.). Pending before
the undersigned is the defendant’s motion for summary judgment. (Doc. 20). For
the reasons discussed below, the motion is due to be granted, and this action is due
to be dismissed with prejudice.
1
The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 11).
I.
Material Facts 2
The plaintiff was born in 1955 and has been employed by the defendant in its
Fine Arts department since 1977. (Doc. 22-4 at pp. 3, 6). She began her employment
as a band teacher. (Id. at p. 3). In 1997, she was promoted to the position of
Instrumental Music Curriculum Support Teacher. (Id.). In this position, the plaintiff
assisted the teaching efforts of band teachers throughout the school district, started
instrumental music programs, prepared professional development programs, and
wrote grants, all from the defendant’s central office. (Id.). As part of a reduction in
force in 2003, the plaintiff was placed back in her teaching position. (Id.).
In August 2007, a position was posted for a Program Specialist to support
teachers in the Fine Arts department at large. (Doc. 22-5 at pp. 24-25; Doc. 27-1 at
¶¶ 4-6). The plaintiff applied for the position. (Doc. 27-1 at ¶ 4). The posting was
withdrawn on the day the position was set to close for applications, and a lowerpaying position was posted for an Instrumental Music Curriculum Support Teacher
to support instrumental music teachers specifically. (Id.; Doc. 22-4 at pp. 4-5, 13,
22-23). The Chief of Staff for the defendant testified it was his understanding the
Program Specialist position had been posted without the knowledge or approval of
the defendant’s Chief Financial Officer, who required the posting to be withdrawn
2
The following facts are undisputed, unless otherwise noted. They are viewed in the light most
favorable to the plaintiff, as the non-movant, with the plaintiff given the benefit of all reasonable
inferences.
2
because there was not funding for the position. (Doc. 22-5 at pp. 4-5). The plaintiff
applied for and received the Instrumental Music Curriculum Support Teacher
position. (Doc. 22-4 at pp. 4, 9). However, notwithstanding her title and pay, the
plaintiff essentially performed the duties of a Program Specialist. (Doc. 27-1 at ¶¶
6, 8, 14).
At the time of the plaintiff’s promotion to Instrumental Music Curriculum
Support Teacher in 2007, Julia Maston was the only remaining Program Specialist
in the Fine Arts department. (Doc. 23-1 at ¶ 3). The defendant asserts that after Ms.
Maston retired in December 2007 it stopped employing Program Specialists in the
Fine Arts department, based on financial considerations and the determination the
department could run efficiently and effectively without Program Specialists. (Id.).3
After the Alabama State Department of Education (the “ASDOE”)
temporarily took over the defendant in 2012, it performed an audit and
recommended in May of that year that Program Specialists be hired for a variety of
instructional areas, including one Program Specialist for the Fine Arts department.
(Doc. 22-5 at pp. 10-11; Doc. 22-7 at pp. 19-20). The plaintiff asserts it is her
understanding the ASDOE would not have recommended the defendant hire a
3
The defendant did hire an additional Curriculum Support Teacher for the Fine Arts department
in 2016, after determining this addition would enable the department to run more efficiently and
effectively and would assist in achieving the goal of expanding and enhancing the defendant’s
music and arts programs. (Doc. 23-1 at ¶ 4).
3
Program Specialist for the Fine Arts department unless there was funding to support
the position (Doc. 27-1 at ¶ 11), and the defendant’s Chief of Staff testified it was
also his assumption the ASDOE’s recommendations would have been tied to
available funding (Doc. 22-5 at p. 10). However, the defendant’s Chief of Staff
emphasized the ASDOE’s recommendations were just that – recommendations, not
requirements – and stated there were other recommendations made by the ASDOE
that the defendant did not adopt. (Id. at p. 11). For example, although the ASDOE
recommended the defendant eliminate seven nurse positions, the defendant
determined it did not have enough nurses to care for students with disabilities and
refilled these positions. (Id.).
In October 2012, the plaintiff communicated with then-superintendent Dr.
Craig Witherspoon about being promoted to the position of Program Specialist.
(Doc. 27-1 at ¶ 9). The plaintiff claims Dr. Witherspoon indicated he thought she
was a Program Specialist, that through representations made orally and by e-mail
Dr. Witherspoon vowed to make her a Program Specialist, and that she expected the
promotion to happen no later than the start of the 2013-2014 school year. (Id.; Doc.
22-4 at pp. 35-37; Doc. 22-9 at p. 8). She further claims that based on Dr.
Witherspoon’s promise she rebuffed more lucrative job offers. (Doc. 27-1 at ¶ 10).
When the defendant did not hire her as a Program Specialist for the Fine Arts
department at the start of the 2013-2014 school year, the plaintiff continued to
4
advocate for her promotion until she filed her charge of age discrimination with the
Equal Employment Opportunity Commission (the “EEOC”) in September 2016. (Id.
at ¶ 13; Doc. 1-1). John McAphee, the Coordinator of Fine Arts to whom the
plaintiff reported in her position as an Instrumental Music Curriculum Support
Teacher, advocated for the plaintiff’s promotion to Program Specialist, as well.
(Doc. 22-9 at p. 5; Doc. 27-1 at ¶ 8). 4
Although the defendant has not hired a Program Specialist for the Fine Arts
department since it withdrew the August 2007 posting for the position, or even
employed a Program Specialist in that department since Ms. Maston’s retirement in
December 2007, the defendant has hired Program Specialists for other departments
during the relevant period based on the needs of the departments and available
funding. (Doc. 23-1 at ¶¶ 5-13; Doc. 27-1 at ¶ 12). For example, the defendant
employs Program Specialists in its Special Education, Federal Programs,
Professional Development, Career Academies, Social Studies, and Physical
Education departments.
(Doc. 23-1 at ¶¶ 6-13).
Multiple of these Program
Specialists are younger than the plaintiff. (Doc. 22-9 at pp. 12, 19; Doc. 27 at pp.
11-12; Doc. 27-1 at ¶ 12). The qualifications and job requirements for a Program
4
Mr. McAphee described the plaintiff as an above-average teacher. (Doc. 22-9 at p. 2, 4). The
plaintiff and her bands have received numerous accolades, and she has been selected to speak to
band teachers at a national conference about how to succeed in disadvantaged situations. (Id. at
pp. 3, 6-7, 11; Doc. 22-4 at p. 22).
5
Specialist vary depending on the department he or she serves. (See Doc. 23-2, Doc.
23-3).
The defendant promoted the plaintiff to the position of Interim Coordinator of
Fine Arts in January 2018, when Mr. McAphee retired. (Doc. 23-1 at ¶ 15). The
plaintiff was made the permanent Coordinator of Fine Arts in June 2018. (Id.).
II.
Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, “[t]he [district] court
shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The party seeking
summary judgment bears the initial burden of informing the district court of the basis
for its motion and identifying those portions of the record the party believes
demonstrate the absence of a genuine dispute as to a material fact. Celotex Corp.,
477 U.S. at 323. If the moving party carries its initial burden, the non-movant must
go beyond the pleadings and come forward with evidence showing there is a genuine
dispute as to a material fact for trial. Id. at 324.
The substantive law identifies which facts are material and which are
irrelevant. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence is such
that a reasonable jury could return a verdict for the non-movant. Id. at 248. If the
6
evidence is merely colorable or not significantly probative, summary judgment is
appropriate. Id. at 249-50 (internal citations omitted). All reasonable doubts about
the facts should be resolved in favor of the non-movant, and all justifiable inferences
should be drawn in the non-movant’s favor. Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993).
III.
Discussion
A.
ADEA Claim
The ADEA prohibits an employer from discriminating against an employee
who is at least forty years old “because of” that person’s age. 29 U.S.C. §§
623(a)(1), 631(a). There are three theories of discrimination under the ADEA:
disparate treatment discrimination, pattern-and-practice discrimination, and
disparate impact discrimination. See Smith v. City of Jackson, 544 U.S. 228, 240
(2005) (holding that in addition to authorizing disparate treatment claims, ADEA
authorizes disparate impact claims); Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d
1208, 1227 (11th Cir. 2001) (noting plaintiffs proceeded under pattern-and-practice
theory of age discrimination). The plaintiff in this case proceeds under the first
theory.
A plaintiff can establish a disparate treatment claim under the ADEA with
direct or circumstantial evidence. Mora v. Jackson Mem’l Found., Inc., 597 F.3d
1201, 1204 (11th Cir. 2010). “Direct evidence is evidence, that, if believed, proves
7
the existence of a fact without inference or presumption.” Wilson v. B/E Aerospace,
Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (internal quotation marks and alterations
omitted), abrogated in part on other grounds by Lewis v. Union City, Georgia, 918
F.3d 1213, 1218 (11th Cir. 2019). “Only the most blatant remarks, whose intent
could mean nothing other than to discriminate on the basis of age, constitute direct
evidence of discrimination.” Van Voorhis v. Hillsborough Cty. Bd. of Cty. Comm’rs,
512 F.3d 1296, 1300 (11th Cir. 2008) (internal quotation marks and alterations
omitted) (holding manager’s statement he “didn’t want to hire an old pilot” was
direct evidence of age discrimination); see also Dixon v. The Hallmark Cos., Inc.,
627 F.3d 849, 855 (11th Cir. 2010) (noting Eleventh Circuit has held documents
stating “Fire Early – he is too old” and ‘Fire Rollins – she is too old” were direct
evidence of age discrimination). Evidence that suggests, but does not prove, a
discriminatory motive is circumstantial evidence. Burrell v. Bd. of Trs. of Georgia
Military Coll., 125 F.3d 1390, 1393-94 (11th Cir. 1997). The plaintiff in this case
has not come forward with any direct evidence of age discrimination and instead
relies on circumstantial evidence.
The Eleventh Circuit evaluates ADEA disparate treatment claims that are
based on circumstantial evidence using the burden-shifting framework set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Sims v. MVM,
8
Inc., 704 F.3d 1327, 1332-33 (11th Cir. 2013).5 Under this framework, a plaintiff
establishes a prima facie case of age discrimination by showing (1) she was a
member of the protected group of persons between the ages of forty and seventy, (2)
she was subjected to an adverse employment action, (3) her employer treated a
substantially younger person otherwise similarly situated to her (a “comparator”)
more favorably, and (4) she was qualified to do the job at issue. Kragor v. Takeda
Pharm. America, Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (setting forth elements
of prima facie case); Hawthorne v. Baptist Hosp., Inc., 448 F. App’x 965, 968 (11th
Cir. 2011) (same); Liebman v. Metropolitan Life Ins. Co., 808 F.3d 1294, 1298-99
(11th Cir. 2015) (noting with respect to third element that proper inquiry is whether
comparator was substantially younger than plaintiff, not whether comparator is
outside the plaintiff’s protected class). The burden then shifts to the defendant to
put forth a legitimate, non-discriminatory reason for the adverse employment action
and then back to the plaintiff to show the proffered reason is a pretext for
discrimination. Kragor, 702 F.3d at 1308.
However, use of the McDonnell Douglas burden-shifting framework “is not
the sine qua non for a plaintiff to survive summary judgment in a discrimination
5
Because this is also the framework used to evaluate employment discrimination claims brought
under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., Title VII
and ADEA case law is interchangeable. Vickery v. Medtronic, Inc., 997 F. Supp. 2d 1244, 1253
n.5 (S.D. Ala. 2014) (citing Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000)).
9
case.” Sims, 704 F.3d at 1333. “Instead, ‘the plaintiff will always survive summary
judgment if [s]he presents circumstantial evidence that creates a triable issue
concerning the employer’s discriminatory intent.’” Id. (quoting Smith v. Lockheed
Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)). “A triable issue of fact exists
‘if the record, viewed in the light most favorable to the plaintiff, presents a
convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.’” Id. (quoting Smith, 644 F.3d at
1328).
Whether a plaintiff relies on the McDonnell Douglas burden-shifting
framework or the presentation of a “convincing mosaic” of circumstantial evidence,
the language “because of” in the ADEA means the burden of persuasion always
remains with the plaintiff to prove age discrimination was the “but-for” cause of the
adverse employment action. Id. at 1331-33 (discussing Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167 (2009)).
1.
Failure to Establish Prima Facie Case
The plaintiff has failed to come forward with evidence to support the third
element of a prima facie case of age discrimination. 6 A comparator must be
6
In its reply brief, the defendant argues for the first time that the plaintiff has failed to present
evidence to support the second element. More specifically, the defendant argues the plaintiff was
never subjected to an adverse employment action because there was never an opening for a
Program Specialist position in the Fine Arts department. In other words, the defendant argues the
plaintiff’s claim the defendant should have created that opening for her in response to requests she
be promoted is not actionable. The undersigned declines to address this argument because it was
raised for the first time in a reply brief. See Pearl v. Mad Engine, Inc., 2015 WL 5179517, at *3
10
similarly situated to an ADEA plaintiff in “all material respects.” Lewis, 918 F.3d
at 1218, 1224-29 (clarifying standard for comparator evidence in context of race
discrimination case); Menefee v. Sanders Lead Co., Inc., 786 F. App’x 963, 967
(11th Cir. 2019) (applying clarified standard in context of age discrimination case).
As the word “material” indicates, “a valid comparison [] turn[s] not on formal labels,
but rather on substantive likenesses.”
Lewis, 918 F.3d at 1228.
Therefore,
ordinarily, a valid comparator “ha[s] engaged in the same basic conduct (or
misconduct) as the plaintiff”; “ha[s] been subject to the same employment policy,
guideline, or rule as the plaintiff”; “ha[s] been under the jurisdiction of the same
supervisor as the plaintiff”; and “share[s] the plaintiff’s employment or disciplinary
history.” Id. at 1227-28. Nonetheless, “what sort of similarity the in ‘all material
respects’ standard entails [requires consideration] on a case-by-case basis, in the
context of individual circumstances.” Id. at 1227.
The plaintiff in this case offers employees of the defendant younger than
herself who hold the title of Program Specialist as comparators to support her prima
facie case of age discrimination. However, formal labels do not demonstrate
material similarity, Lewis, 918 F.3d at 1228, and the plaintiff has not presented any
evidence showing she and the alleged comparators share substantive likenesses.
n.6 (N.D. Ala. Sept. 4, 2015) (“A new issue cannot be raised for the first time in a reply brief the
non-movant has no opportunity to answer.”).
11
Instead, the unrefuted evidence shows the defendant hired the alleged comparators
as Program Specialists in departments distinct from the Fine Arts department based
on the particular needs of those departments and available funding and that the job
qualifications and responsibilities of the alleged comparators were tied to specific
instructional areas other than the arts.
Given that on the record before the
undersigned the similarity between the plaintiff and the alleged comparators begins
and ends with the technical title the plaintiff sought to hold in one department and
that the alleged comparators hold in entirely different departments, each with its own
needs, the plaintiff has failed to satisfy her burden to identify an individual similarly
situated to herself in all material respects who the defendant treated more favorably.
See Welch v. Mercer Univ., 304 F. App’x 834, 837 (11th Cir. 2008) (holding two
women outside plaintiff’s protected class who worked in an entirely different
academic department with entirely different standards for promotion were not valid
comparators that would support plaintiff’s race discrimination claim that was based
on a failure to promote). For this reason, the plaintiff cannot make out a prima facie
case of age discrimination under the McDonnell Douglas burden-shifting
framework.
12
2.
Legitimate Non-Discriminatory Reason for Not Promoting
Plaintiff to Program Specialist Position
Assuming for the sake of argument that the plaintiff had established a prima
facie case of age discrimination, the defendant has articulated legitimate, nondiscriminatory reasons for not promoting the plaintiff to the position of Program
Specialist in the Fine Arts department, and the plaintiff has failed to show the reason
is a pretext for discrimination. An employer’s burden under the McDonnell Douglas
framework is one of production, not persuasion. Kragor, 702 F.3d at 1308. To
satisfy its burden, an employer “need not persuade the court that it was actually
motivated by the proffered reasons” but, rather, “[i]t is sufficient if the defendant’s
evidence raises a genuine issue of fact as to whether it discriminated against the
plaintiff.” Id. (internal quotation marks omitted). This burden has been described
as “ ‘exceedingly light.’” Bradley v. Pfizer, Inc., 440 F. App’x 805, 808 (11th Cir.
2011) (quoting Meeks v. Computer Assocs. Intern., 15 F.3d 1013, 1019 (11th Cir.
1994)).
The defendant has presented evidence it withdrew the August 2007 posting
for a Program Specialist to support teachers in the Fine Arts department because
there was not funding for the position. It has also presented evidence it has not hired
a Program Specialist for the Fine Arts department since that time or even employed
a Program Specialist in the Fine Arts department since Ms. Maston retired in
13
December 2007, based on financial considerations and the determination the
department could run efficiently and effectively without Program Specialists. This
satisfies the defendant’s burden under the McDonnell Douglas framework. See
Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002) (“The
nonexistence of an available position [based on lack of funding] is a legitimate
reason not to promote.”); Sims, 704 F.3d at 1334 (holding budget constraints were a
legitimate, non-discriminatory reason for challenged employment action); Int’l Bhd.
of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977) (noting “absence of a
vacancy in the job sought” is legitimate reason for not hiring a person for a position).
3.
Failure to Demonstrate Pretext
“The inquiry into pretext centers on the employer’s beliefs, not the
employee’s . . . .” Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266
(11th Cir. 2010). “A plaintiff is not allowed to recast an employer’s proffered
nondiscriminatory reasons or substitute [her] business judgment for that of the
employer.” Chapman, 229 F.3d at 1030. “Provided that the proffered reason is one
that might motivate a reasonable employer, an employee must meet that reason head
on and rebut it, and the employee cannot succeed by simply quarreling with the
wisdom of that reason.” Id.; see also Elrod v. Sears, Roebuck and Co., 939 F.2d
1466, 1470 (11th Cir. 1991) (“Federal courts ‘do not sit as a super-personnel
department that reexamines an entity’s business decisions.’”) (quoting Mechnig v.
14
Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988)); Nix v. WLCY
Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th Cir. 1984) (“[An] employer
may fire an employee for a good reason, a bad reason, a reason based on erroneous
facts, or for no reason at all, as long as its action is not for a discriminatory reason.”),
abrogated in part on other grounds by Lewis, 918 F.3d at 1213, 1218, 1224-29.
Thus, to meet her burden at the third step of the McDonnell Douglas
framework, a plaintiff must demonstrate “such weaknesses, implausibilities,
inconsistencies, incoherencies[,] or contradictions in [the employer’s] proffered
legitimate reasons for its actions that a reasonable factfinder could find them
unworthy of credence.” Springer v. Convergys Customer Mgmt. Grp., Inc., 509 F.3d
1344, 1348 (11th Cir. 2007) (internal quotation marks omitted). Moreover, even if
a plaintiff shows an employer’s proffered reason is false, she still may not be entitled
to survive summary judgment. Alvarez, 610 F.3d at 1266. “[A] reason is not pretext
for discrimination unless it is shown both that the reason was false, and that
discrimination was the real reason.” Springer, 509 F.3d at 1348 at 1349 (internal
quotation marks omitted); see also Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 148 (2000) (stating that even if plaintiff disproved employer’s proffered
reason for challenged employment action, employer would still be entitled to
judgment as a matter of law if record “conclusively revealed some other,
15
nondiscriminatory reason” for action); Chapman, 229 F.3d at 1025 n.11 (applying
Reeves in summary judgment context).
a.
ASDOE’s May 2012 Recommendation
As evidence to counter the defendant’s proffered reasons for not promoting
the plaintiff to the position of Program Specialist in the Fine Arts department, the
plaintiff offers the recommendation made by the ASDOE in May 2012. This
evidence does nothing to call into question the defendant’s stated reasons for
withdrawing the August 2007 posting for a Program Specialist to support teachers
in the Fine Arts department and not hiring a Program Specialist for that department
between August 2007 and May 2012.
It does not render the defendant’s stated reasons unworthy of credence with
respect to the post-May 2012 period, either. Even if the recommendation indicates
the ASDOE believed the defendant should hire a Program Specialist for the Fine
Arts department and had the money to do so, it does not show the defendant did not
believe its financial resources should not be spent for this purpose. Just as the
defendant determined it did not have enough nurses to care for students with
disabilities and, therefore, needed to refill seven nurse positions the ASDOE had
recommended it eliminate, it could have compared its financial resources to the
needs of its departments and determined that notwithstanding the ASDOE’s
recommendation it would be imprudent to allocate any of its resources toward the
16
employment of a Program Specialist for the Fine Arts department. In other words,
the business judgment that matters in this case is that of the defendant, not that of
the ASDOE or the plaintiff.
Moreover, the question is not whether as of May 2012 the defendant had the
money to hire a Program Specialist for the Fine Arts department or whether that
department would have benefitted from the addition of a Program Specialist. The
question is whether the defendant believed its financial resources were better spent
in ways other than hiring a Program Specialist for the Fine Arts department, even if
that belief was erroneous, or instead merely used its finances and program needs as
cover for discriminating against the plaintiff because of her age. See Alvarez, 610
F.3d at 1266 (noting relevant question was not whether there were problems with
plaintiff’s job performance but, rather, whether plaintiff’s employers were
dissatisfied with her for this or other non-discriminatory reasons, even if mistakenly
or unfairly so, or instead merely used performance problems as cover for
discriminating against plaintiff because of her Cuban origin). The plaintiff has
presented no evidence showing the defendant did not believe its stated reasons for
not promoting her to a Program Specialist position.7
7
Additionally, the undersigned notes the defendant’s statement it determined the Fine Arts
department could run efficiently and effectively without a Program Specialist is supported by the
plaintiff’s insistence that in her position as an Instrumental Music Curriculum Support Teacher
she had been performing the duties of a Program Specialist since her promotion to the support
teacher position in 2007.
17
b.
Consistency of Defendant’s Explanations
The plaintiff also argues the defendant has offered shifting or inconsistent post
hoc explanations for its decision not to promote her to a Program Specialist position.
See Howard v. BP Oil Co., Inc., 32 F.3d 520, 526 (11th Cir. 1994) (holding
employer’s inconsistent explanations for challenged decision were evidence of
pretext); Bechtel Const. Co. v. Sec’y of Labor, 50 F.3d 926, 935 (11th Cir. 1995)
(holding pretextual nature of plaintiff’s termination was demonstrated by employer’s
shifting explanations for its actions). Specifically, she contrasts the reason the
defendant gave in its response to her EEOC charge with the reason the defendant
gave in its discovery responses in this action and to the plaintiff herself. (Doc. 27 at
14).
In its response to the plaintiff’s EEOC charge, the defendant stated it made
the decision to add a Curriculum Support Teacher to the Fine Arts department in
2016 “based solely on the needs of the district,” which included the defendant’s goal
of expanding and enhancing its music and arts programs. (Doc. 22-8 at p. 17). In
its discovery responses in this action, the defendant stated both that it withdrew the
August 2007 posting for a Program Specialist to support teachers in the Fine Arts
department and that it has not employed a Program Specialist in this department
since Ms. Maston’s retirement in December 2007 based on financial considerations
and the determination the department could run efficiently and effectively without
18
Program Specialists. (Doc. 22-8 at pp. 5-6). According to the plaintiff, the defendant
consistently told her it did not have funding to hire a Program Specialist for the Fine
Arts department. (Doc. 22-4 at p. 21; Doc. 27-1 at ¶ 11).
These explanations pertain to different employment decisions – the decision
to add a Curriculum Support Teacher to the Fine Arts department on the one hand
and the decision not to hire a Program Specialist for the Fine Arts department on the
other – and are not shifting or inconsistent. They show the defendant made hiring
decisions related to the Fine Arts department by balancing financial considerations
and program needs. To the extent the plaintiff suggests the defendant originally
maintained its decision not to promote her to a Program Specialist position was
based solely on fiscal concerns and only later added that the needs of the Fine Arts
department factored into the decision, the existence of an additional nondiscriminatory basis for a challenged employment decision does not demonstrate
inconsistency or prove pretext. See Tidwell v. Carter Prods., 135 F.3d 1522, 1528
(11th Cir. 1998) (holding that at most, a jury could find plaintiff’s performance was
an additional, but undisclosed, reason for his termination).
Because the defendant has articulated legitimate, non-discriminatory reasons
for the action – or, rather, inaction – challenged by the plaintiff, which the plaintiff
has failed to rebut, the plaintiff could not carry her burden under the McDonnell
Douglas framework or prove her age was the “but-for” reason the defendant did not
19
promote her to a Program Specialist position, even if she had identified a valid
comparator. 8 Accordingly, the plaintiff’s age discrimination claim is due to be
dismissed with prejudice. 9
B. Breach of Contract Claim
The Alabama Constitution provides “[t]hat the State of Alabama shall never
be made a defendant in any court of law or equity.” Ala. Const. 1901, § 14. “This
section affords the State and its agencies ‘absolute’ immunity from suit in any
court.” Bd. of Sch. Comm’rs of Mobile Cty. v. Weaver, 99 So. 3d 1210, 1216-17
(Ala. 2012) (emphasis in original). “Local school boards are agencies of the State,
not of the local governmental units they serve, and they are entitled to the same
8
The undersigned notes the plaintiff has also failed to present a “convincing mosaic” of
circumstantial evidence that would permit the inference the defendant intentionally discriminated
against her. Dr. Witherspoon’s belief the plaintiff was, in fact, a Program Specialist and purported
promise to make the plaintiff a Program Specialist upon learning she did not hold this title
undermine the plaintiff’s claim the defendant did not make her a Program Specialist because of
her age. The fact that upon Mr. McAphee’s retirement, the defendant made the plaintiff the
Coordinator of Fine Arts, a position above that of Program Specialist, further undermines the
plaintiff’s claim the defendants intentionally discriminated against her based on her age.
9
Because it is clear the plaintiff’s ADEA claim fails on the merits, the undersigned declines to
address the defendant’s alternative argument the plaintiff failed to exhaust her administrative
remedies by filing a timely charge of age discrimination with the EEOC. The undersigned notes
that while exhaustion of administrative remedies is a statutory condition precedent to suit, it is not
a jurisdictional requirement, such that a plaintiff’s failure to file a timely charge of age
discrimination with the EEOC would deprive a district court of subject matter jurisdiction.
Sheffield v. United Parcel Serv., Inc., 403 F. App’x 452, 454 n.1 (11th Cir. 2010) (citing Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393, 398 (1982)); Harris v. Bd. of Trs. Univ. of Alabama,
846 F. Supp. 2d 1223, 1236-37 (N.D. Ala. 2012) (citing Zipes; Jackson v. Seaboard C.L.R. Co.,
678 F.2d 992, 1003 (11th Cir. 1982)).
20
absolute immunity as other agencies of the State.” Ex parte Bessemer Bd. of Educ.,
68 So. 3d 782, 789-90 (Ala. 2011) (holding § 14 immunity barred claim for
miscalculation of statutory pay raise asserted against Bessemer Board of Education);
see also Ex parte Boaz City Bd. of Educ., 82 So. 3d 660, 662 (Ala. 2011) (holding §
14 immunity barred tort claims asserted against Boaz City Board of Education); Ex
parte Hale Cty. Bd. of Educ., 14 So. 3d 844, 846-49 (Ala. 2009) (holding § 14
immunity barred claim for breach of implied contract asserted against Hale County
Board of Education).10
“[T]here are six general categories of actions that do not come within the
prohibition of § 14.” Weaver, 99 So. 3d at 1217. These are as follows:
10
Relatedly, the Eleventh Amendment to the U.S. Constitution bars suits for money damages
against a state by its citizens, unless the state has waived its Eleventh Amendment immunity or
Congress has abrogated it. Carr v. City of Florence, Alabama, 916 F.2d 1521, 1524 (11th Cir.
1990). Moreover, Eleventh Amendment immunity extends to state entities when they act as
“arm[s] of the state.” Lightfoot v. Henry Cty. School Dist., 771 F.3d 764, 768 (11th Cir. 2014)
(internal quotation marks omitted). The State of Alabama has not waived its Eleventh Amendment
immunity. Carr, 916 F.2d at 1525. The United States Supreme Court has held that although the
ADEA authorizes suits against states, Congress was without authority to abrogate states’ Eleventh
Amendment immunity against ADEA claims. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91
(2000). However, while local school boards are agencies of the state for purposes of the immunity
against state tort and contract claims provided by § 14 of the Alabama Constitution, they are not
arms of the state for purposes of the immunity against federal claims provided by the Eleventh
Amendment to the U.S. Constitution. Walker v. Jefferson Cty. Bd. of Educ., 771 F.3d 748, 75056 (11th Cir. 2014); see also Stewart v. Baldwin Cty. Bd. of Educ., 908 F.2d 1499, 1510 n.6 (11th
Cir. 1990) (noting it was improper to “conflate sovereign immunity with regard to state-created
tort with Eleventh Amendment immunity for a federal cause of action”). Therefore, the defendant
is not immune from suit against the plaintiff’s ADEA claim. See Walker, 771 F.3d at 757 (holding
Eleventh Amendment did not immunize Jefferson County Board of Education from claim asserted
against it under Fair Labor Standards Act, 29 U.S.C. § 201, et seq., or Madison City Board of
Education from claim asserted against it under Uniformed Services Employment and
Reemployment Rights Act, 38 U.S.C. § 4301, et seq.).
21
(1) actions brought to compel State officials to perform their legal
duties; (2) actions brought to enjoin State officials from enforcing an
unconstitutional law; (3) actions to compel State officials to perform
ministerial acts; [] (4) actions brought under the Declaratory Judgments
Act . . . seeking construction of a statute and its application in a given
situation . . . (5) valid inverse condemnation actions brought against
State officials in their representative capacity; and (6) actions for
injunction or damages brought against State officials in their
representative capacity and individually where it was alleged that they
had acted fraudulently, in bad faith, beyond their authority or in a
mistaken interpretation of law.
Id. at 1218-19. “However, these ‘exceptions’ to § 14 immunity extend only to
actions against State officials, and not to actions against State agencies.” Id. at 1217.
Therefore, while the plaintiff argues the evidence allows for the inference Dr.
Witherspoon acted beyond his authority in promising to make the plaintiff a Program
Specialist in the Fine Arts department, this does not except the Birmingham City
Schools, the sole defendant in this action, from absolute immunity. See Ex parte
Bessemer Bd. of Educ., 68 So. 3d at 790 (noting no “exception” to § 14 immunity
applied to Bessemer Board of Education itself). Because the defendant enjoys the
protections of § 14 of the Alabama Constitution, the breach of contract claim
asserted against it is due to be dismissed with prejudice.11
11
Because it is clear § 14 immunity bars the breach of contract claim asserted against the
defendant, the undersigned declines to address the defendant’s alternative argument the plaintiff
has failed to state an actionable breach of contract claim against it.
22
IV. Conclusion
For the foregoing reasons, the defendant’s motion for summary judgment
(Doc. 20) is due to be GRANTED and this action is due to be DISMISSED WITH
PREJUDICE. A separate order will be entered.
DONE this 24th day of March, 2020.
______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE
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