Baugh v. Muscle Shoals Board of Education et al

Filing 18

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the defendants' motion for summary judgment is GRANTED and all of plaintiff's claims are DISMISSED with prejudice, costs are taxed to plaintiff as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 7/9/2013. (AHI )

FILED
2013 Jul-09 AM 10:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
JUANICA BAUGH,

Plaintiff,
vs.
MUSCLE SHOALS BOARD OF
EDUCATION and JEFF
WOOTEN,
Defendants.

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Civil Action No. CV-12-S-2000-NW

MEMORANDUM OPINION AND ORDER
Plaintiff, Juanica Baugh, alleges that defendants, the Muscle Shoals Board of
Education and its superintendent, Jeff Wooten, discriminated against her on the basis
of her race by electing not to renew her employment contract for the position of
science teacher at Muscle Shoals High School.1

Plaintiff asserts claims for

discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., and 42 U.S.C. § 1981.2 This action is before the court on defendants’ motion for
summary judgment.3 Upon consideration, this court will grant the motion.
I. SUMMARY JUDGMENT STANDARDS
1

See doc. no. 1 (Complaint). Plaintiff initiated this action pro se on May 29, 2012. See id.
Counsel appeared on plaintiff’s behalf on August 3 of that year. See doc. no. 7 (Notice of
Appearance). Even so, counsel has not assisted plaintiff in filing an amended complaint.
2

Doc. no. 1 (Complaint) ¶¶ 1.

3

See doc. no. 12 (Motion for Summary Judgment).

Federal Rule of Civil Procedure 56 indicates that the 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). “[T]he plain language of [that rule] mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (alterations supplied).
In making this determination, the court must review all evidence and
make all reasonable inferences in favor of the party opposing summary
judgment.
[However,] [t]he mere existence of some factual dispute will not
defeat summary judgment unless that factual dispute is material to an
issue affecting the outcome of the case. The relevant rules of substantive
law dictate the materiality of a disputed fact. A genuine issue of material
fact does not exist unless there is sufficient evidence favoring the
nonmoving party for a reasonable [factfinder] to return a verdict in its
favor.
Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (internal
citations omitted) (alterations and emphasis suppled).
II. SUMMARY OF FACTS
A.

Plaintiff’s Hiring
Plaintiff is an African-American female who was employed as a non-tenured
2

science teacher by the Muscle Shoals Board of Education (“the Board”) at Muscle
Shoals High School for two years.4 Prior to her employment by the Muscle Shoals
Board, plaintiff had served as a science teacher with two other school systems: i.e.,
the Anniston City Board of Education from 1999 to 2003; and the Talladega Board
of Education from 2004 to 2008.5 Plaintiff voluntarily left her employment with the
Anniston City Board because she changed her residence, and voluntarily left her
employment with the Talladega Board to obtain a master’s degree.6
The Muscle Shoals Board of Education posted an opening for a science teacher
at Muscle Shoals High School at some point in early 2009.7 Muscle Shoals High
School Principal H.L. Noah and Assistant Principals Jason Simmons and Denise
Woods interviewed several applicants (of whom plaintiff was the only
African-American), and unanimously agreed that plaintiff was the superior candidate.8
Accordingly, Noah recommended plaintiff’s hiring to the Superintendent of the
Muscle Shoals School System, Jeff Wooten, on June 25, 2009.9 In turn, Dr. Wooten
4

Doc. no. 1 (Complaint), Exhibit A (02/28/12 EEOC Charge); doc. no. 13-11 (Affidavit of
Denise Woods) ¶ 5; doc. no. 13-13 (Affidavit of Jason Simmons) ¶ 5; doc. no. 13-15 (Affidavit of
H.L. Noah) ¶¶ 2, 5, 25; id., Exhibit C (05/24/11 Notice of Non-Renewal).
5

Doc. no. 13-1 (Deposition of Plaintiff), at 22-25.

6

Id. at 23-26.

7

Doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 4.

8

Doc. no. 13-11 (Affidavit of Denise Woods) ¶ 5; doc. no. 13-13 (Affidavit of Jason
Simmons) ¶ 5; doc. no. 13-15 (Affidavit of H.L. Noah) ¶¶ 2, 5.
9

Doc. no. 13-11 (Affidavit of Denise Woods) ¶ 5; doc. no. 13-13 (Affidavit of Jason
Simmons) ¶ 5; doc. no. 13-15 (Affidavit of H.L. Noah) ¶¶ 2, 5.

3

recommended her hiring to the School Board, which approved the recommendation.10
B.

Plaintiff’s Impression of the Racial “Climate” at Muscle Shoals High
School
Plaintiff served as a science teacher at Muscle Shoals High School during the

2009-10 and 2010-11 school years.11 She was one of three African-American teachers
in the school, but the only one to teach a required subject.12 Plaintiff formed an
unfavorable opinion of the racial climate at Muscle Shoals High School. The
following jumbled, bordering upon incomprehensible, testimony constitutes her
attempt to explain some of the reasons for her negative attitude:
Any time you walked in a faculty room — mind you, you could
count the blacks at the school anyway. [“]Hi, Bob. How are you
doing?[”] [“]Everything is great.[”] [“]Good.[”] I may walk by
[Principal H.L. Noah] and he not say anything. I personally will still
speak to him. I had talked to [School Board Member Willis]
Thompson[13] when he would sometimes — the [B]oard members would
come to our school. And I told him before about the climate and how it
feels. I said[, “T]hey go to church together, they are twenty year friends.
They’re reporting stuff to you because they’re friends. He’s not my
principal. He’s their friend.[”] Mr. Thompson would give me advice.
[“]Just don’t let it bother you, just keep on going.[”]
[Principal H.L. Noah] would correct me. He told me one time,
10

Doc. no. 13-11 (Affidavit of Denise Woods) ¶ 5; doc. no. 13-13 (Affidavit of Jason
Simmons) ¶ 5; doc. no. 13-15 (Affidavit of H.L. Noah) ¶¶ 2, 5.
11

Doc. no. 13-1 (Deposition of Plaintiff), at 40-42; doc. no. 13-15 (Affidavit of H.L. Noah)

12

Doc. no. 1 (Complaint) ¶ 4; doc. no. 13-1 (Deposition of Plaintiff), at 153-54.

¶ 8.
13

Willis Thompson, like plaintiff, is African-American. Doc. no. 13-7 (Deposition of Pam
Doyle), at 7.

4

[“]Hey, we’re going to do something for the black kids or the minority
kids. They want a step team. They didn’t grow up learning how to play
these instruments.[”] He said[, “G]reat.[”] I made an announcement,
[“]Anybody want to do the step team?[”] After [the] black history
[program], they were excited. They wanted to do something. They don’t
have any other voice there. Made an announcement over the intercom,
[“C]ome sign up.[”] I’m walking to my class, which is how he corrects
me. He doesn’t call me in . . . . “Ms. Baugh, I didn’t give you approval
to go ahead and say we were really going to do that.” [“]Good morning.
What are you talking about?[”] He has never talked to anybody else at
that school like that. Not where I’ve seen openly.14
C.

Plaintiff’s Job Performance
During the course of plaintiff’s two years at Muscle Shoals High School, all of

plaintiff’s student’s advanced to the following grade level.15 Further, plaintiff sang
at school programs, served as the faculty sponsor for an African-American history
program, and assisted other teachers with a recycling program, a pep rally, and a
music event.16 Even so, Principal H.L. Noah testified that he personally witnessed
problems with plaintiff’s job performance, and received additional complaints about
plaintiff from her co-workers and the parents of her students.17 Some of those
“problems” and parent complaints are discussed in the following subsections.
1.

Tardiness

14

Doc. no. 13-1 (Deposition of Plaintiff), at 118-19 (alterations, footnote, and paragraph
break supplied).
15

Doc. no. 15-2 (Declaration of Plaintiff). The declaration is a single-page, handwritten
document containing one paragraph. See id.
16

Doc. no. 13-1 (Deposition of Plaintiff), at 141.

17

Doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 9.

5

Within the first few months of plaintiff’s employment, Principal H.L. Noah
received several reports from Assistant Principal Jason Simmons and Science
Department Chair Kathy Eldridge that plaintiff was late for school.18 At some point
before October of 2009, Noah counseled plaintiff regarding her tardiness.19 During
her meeting with Noah, plaintiff admitted that she had been arriving late, and
attributed the problem to the fact that she was in the process of changing her
residence.20 After that conversation, plaintiff allegedly began to arrive on time.21
2.

Failure to attend mandatory faculty meetings

Principal H.L. Noah regularly held mandatory faculty meetings in order to
report information received from Superintendent Jeff Wooten, and for the purpose of
discussing upcoming events, testing information, school policies, and safety and
emergency procedures.22 Teachers received notifications and reminders of the
meetings by several means, including electronic mail (“e-mail”).23 Noah and other
school employees noticed that plaintiff missed a number of the faculty meetings
18

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 6; doc. no. 13-13 (Affidavit of Jason
Simmons) ¶ 10; doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 18.
19

Doc. no. 13-1 (Deposition of Plaintiff), at 50-52.

20

Id.

21

Id. at 52.

22

Id. at 55-57; doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 13; doc. no. 13-15 (Affidavit
of H.L. Noah) ¶ 10.
23

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 13; doc. no. 13-13 (Affidavit of Jason
Simmons) ¶ 11.

6

without explanation.24 At one such meeting, Noah observed plaintiff’s absence, and
questioned Science Department Chair Kathy Eldridge regarding plaintiff’s failure to
attend.25 Eldridge told Noah that she had seen plaintiff in her classroom when she
(Eldridge) left to attend the meeting.26 On another occasion, Assistant Principal Jason
Simmons had to find plaintiff and direct her to come to the meeting.27
Noah counseled plaintiff regarding her pattern of missing faculty meetings at
some point during the 2009-10 school year.28 Even so, plaintiff acknowledged that
she missed a number of faculty meeting during the 2009-10 and 2010-11 school
years.29 Plaintiff alleged that, initially, she was not aware that the meetings were
mandatory; but, even after learning of that fact, she still had occasional scheduling
conflicts.30 She also pointed the finger at others, saying that football, basketball, and
tennis coaches missed faculty meetings, but were not reprimanded.31

24

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 14; doc. no. 13-11 (Affidavit of Denise
Woods) ¶ 13; doc. no. 13-12 (Affidavit of Sonya Allman) ¶ 6; doc. no. 13-13 (Affidavit of Jason
Simmons) ¶ 12; doc. no. 13-14 (Affidavit of Judy Noah) ¶ 7; doc. no. 13-15 (Affidavit of H.L. Noah)
¶ 11.
25

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 14.

26

Id.

27

Doc. no. 13-13 (Affidavit of Jason Simmons) ¶ 12; doc. no. 13-15 (Affidavit of H.L. Noah)

28

Doc. no. 13-1 (Deposition of Plaintiff), at 55-60; doc. no. 13-15 (Affidavit of H.L. Noah)

29

Doc. no. 13-1 (Deposition of Plaintiff), at 55-60.

30

Id.

31

Id. at 121-23.

¶ 11.
¶ 12.

7

3.

Failure to provide substitute teachers with proper lesson plans and
additional required information

When Muscle Shoals High School teachers were absent from school, they were
required to provide substitute teachers with lesson plans that keep their students busy
for the duration of the class period.32 They were also required to leave substitute
teachers a seating chart, a description of school emergency procedures, and notes
about students’ medical needs.33 Science Department Chair Kathy Eldridge and
science teacher Leella Holt received several reports from various substitute teachers
that plaintiff had failed to provide them with proper lesson plans.34 On those
occasions, Eldridge and Holt went to plaintiff’s classroom, and found either that
plaintiff had left no lesson plans at all, or that she had left plans that did not keep her
students occupied for the duration of the class period.35 Eldridge also was not able to
locate seating charts, descriptions of school emergency procedures, and notes about
students’ medical needs.36 As a result, Eldridge and Holt used their class time to write

32

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 7; doc. no. 13-15 (Affidavit of H.L.
Noah) ¶ 16; doc. no. 13-16 (Affidavit of Leella Holt) ¶ 5.
33

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 7; doc. no. 13-15 (Affidavit of H.L.
Noah) ¶ 16; doc. no. 13-16 (Affidavit of Leella Holt) ¶ 5.
34

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 8; doc. no. 13-16 (Affidavit of Leella

Holt) ¶ 6.
35

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 8; doc. no. 13-16 (Affidavit of Leella

Holt) ¶ 6.
36

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 8.

8

lesson plans for plaintiff’s substitute teachers.37 Eldridge repeatedly complained to
Principal H.L. Noah regarding plaintiff’s omissions.38
Plaintiff denied that she failed to provide substitute teachers with proper lesson
plans and additional required information.39 Even so, she admitted that, on one
occasion, a substitute teacher could not locate her lesson plans, that another teacher
reported the incident to Principal H.L. Noah, and that Noah brought the incident to
plaintiff’s attention.40
4.

Failure to follow standard laboratory safety measures

Muscle Shoals High School science teachers were required to ensure that
students wear goggles and aprons while handling acidic chemicals.41 Science teachers
were also required to prevent their students from handling open containers of
chemicals outside the laboratory, especially if those containers were made of glass.42
Science Department Chair Kathy Eldridge and science teacher Leella Holt allegedly

37

Id.; doc. no. 13-16 (Affidavit of Leella Holt) ¶ 6.

38

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 8; doc. no. 13-15 (Affidavit of H.L.
Noah) ¶ 16; doc. no. 13-16 (Affidavit of Leella Holt) ¶ 6.
39

Doc. no. 13-1 (Deposition of Plaintiff), at 60-64.

40

Id.

41

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 9; doc. no. 13-15 (Affidavit of H.L.
Noah) ¶ 7.
42

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 9; doc. no. 13-15 (Affidavit of H.L.
Noah) ¶ 7.

9

witnessed a number of safety violations by plaintiff’s students.43
On one occasion, Holt noticed that plaintiff’s students were handling acids
without wearing goggles.44 Holt reported the incident to an unidentified school
administrator.45 On multiple other occasions, Eldridge observed that plaintiff’s
students were handling acids without wearing goggles or aprons.46 Eldridge also saw
one of plaintiff’s students dump the contents of an open, glass container onto the
grass.47 Eldridge reported the incidents to Principal H.L. Noah.48
Plaintiff denied that she allowed her students to handle chemicals without
wearing goggles and aprons, but admitted that she allowed them to dump a container
of water and food coloring onto the grass.49 She also denied being counseled about
laboratory safety by Principal H.L. Noah or Assistant Principals Jason Simmons and
Denise Woods.50
5.

Failure to attend graduation examination training sessions

The State Department of Education required the Board to train its teachers
43

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶¶ 10-12; Doc. no. 13-16 (Affidavit of
Leella Holt) ¶ 8.
44

Doc. no. 13-16 (Affidavit of Leella Holt) ¶ 8.

45

Id.

46

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶¶ 10-12.

47

Id.

48

Id.

49

Doc. no. 13-1 (Deposition of Plaintiff), at 68-69.

50

Id. at 66-69.

10

before they administer the high school graduation examination.51 Building Test
Coordinator Judy Noah, the wife of Principal H.L. Noah, noticed that plaintiff
repeatedly failed to attend the scheduled training sessions.52 Ms. Noah had to locate
plaintiff on the morning of the examination in order to ensure that she knew how the
test was supposed to be administered.53 Ms. Noah reported plaintiff’s failure to attend
the training to her husband, Principal H.L. Noah.54 Plaintiff admitted that she missed
the training, but could not recall her reasons for doing so.55
In response to defendant’s motion for summary judgment, plaintiff asserts that
she “was never counseled for missed graduation exam training.”56 To support that
statement, plaintiff cites her deposition at “Defendant’s ex 1, Tab A, page 75, lines 2023.”57 Upon review, the claim that plaintiff “was never counseled” for missing the
training is inconsistent with the cited testimony, which reads as follows:
Q.

Were you ever counseled by Mr. Noah or Ms. Woods or Mr.
Simmons about missing the Alabama Graduation Exam training?

A.

I seem to remember either Ms. Woods or one of the counselors
saying something in regards to why I missed that particular

51

Doc. no. 13-14 (Affidavit of Judy Noah) ¶ 9.

52

Id.

53

Id.

54

Id.

55

Doc. no. 13-1 (Deposition of Plaintiff), at 74-75.

56

Doc. no. 15 (Response to Motion for Summary Judgment), at 7.

57

Id.

11

meeting.58
6.

Failure to attend scheduled parent-teacher conferences

The parents of several of plaintiff’s students complained to Principal H.L.
Noah, his wife, Judy Noah, and Assistant Principals Denise Woods and Jason
Simmons that plaintiff had failed to attend scheduled parent-teacher conferences.59
In turn, Simmons reported the complaints he received to Principal H.L. Noah.60
Plaintiff denied missing any appointments with parents.61
7.

Failure to communicate with parents

Principal H.L. Noah emphasized the importance of communication between
teachers and parents, and required all teachers to call the parents of students whose
grades dropped during the year.62 The parents of several of plaintiff’s students
complained to Noah that plaintiff did not communicate with them when their
children’s grades fell.63 Parents also complained to Principal H.L. Noah’s wife, Judy
Noah, Assistant Principal Jason Simmons, Guidance Counselor Sonya Allman, and
58

Doc. no. 13-1 (Deposition of Plaintiff), at 75.

59

Doc. no. 13-11 (Affidavit of Denise Woods) ¶ 11; doc. no. 13-13 (Affidavit of Jason
Simmons) ¶ 13; doc. no. 13-14 (Affidavit of Judy Noah) ¶ 8; doc. no. 13-15 (Affidavit of H.L. Noah)
¶ 15.
60

Doc. no. 13-13 (Affidavit of Jason Simmons) ¶ 13; doc. no. 13-15 (Affidavit of H.L. Noah)

61

Doc. no. 13-1 (Deposition of Plaintiff), at 72.

62

Doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 15.

63

Id.

¶ 15.

12

Science Department Chair Kathy Eldridge that plaintiff did not return their telephone
calls or respond to e-mails.64 In turn, Simmons, Allman, and Eldridge reported the
complaints to Principal H.L. Noah.65
Plaintiff denied awareness of parent complaints regarding her failure to
communicate.66 Inconsistently with that denial, plaintiff recalled that Principal H.L.
Noah spoke to her about failing to respond to a parent’s e-mail.67
8.

Failure to submit grades in a timely manner

To avoid delays in the issuance of report cards and class schedules, it was
important for Muscle Shoals High School teachers to furnish the administration with
student grades in a timely manner.68 Guidance Counselor Sonya Allman informed
Principal H.L. Noah that plaintiff repeatedly failed to provide student grades by the
deadline.69 Plaintiff did not recall providing student grades late.70
9.

Leaving school early

64

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 15; doc. no. 13-12 (Affidavit of Sonya
Allman) ¶ 7; doc. no. 13-13 (Affidavit of Jason Simmons) ¶ 13; doc. no. 13-14 (Affidavit of Judy
Noah) ¶ 8.
65

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 15; doc. no. 13-12 (Affidavit of Sonya
Allman) ¶ 7; doc. no. 13-13 (Affidavit of Jason Simmons) ¶ 13; doc. no. 13-15 (Affidavit of H.L.
Noah) ¶ 15.
66

Doc. no. 13-1 (Deposition of Plaintiff), at 72-73.

67

Id.

68

Doc. no. 13-12 (Affidavit of Sonya Allman) ¶ 8; doc. no. 13-15 (Affidavit of H.L. Noah)

69

Id.

70

Doc. no. 13-1 (Deposition of Plaintiff), at 77-80.

¶ 17.

13

Science Department Chair Kathy Eldridge informed Principal H.L. Noah that
she often saw plaintiff leave early on those days when her planning period occurred
at the end of the day.71 Plaintiff denied leaving early without permission.72
D.

Science Teacher Leah Torisky’s Job Performance
Plaintiff’s complaint asserts that “a similarly-situated, non-tenured, White

science teacher with less experience than [plaintiff] retained her position as a science
teacher at Muscle Shoals High School.”73 The teacher referenced in plaintiff’s
complaint is Leah Torisky, who also was employed as a non-tenured science teacher
during the 2009-10 and 2010-11 school years, and who attained tenure the following
year.74
In addition to teaching science classes, Leah Torisky assisted with Muscle
Shoals High School’s cheerleading program.75 Plaintiff overheard a conversation
among Leah Torisky, Leella Holt, and other science teachers, during which Torsiky
allegedly told her co-workers that the parents of some of the cheerleaders had
complained about her handling of two incidents, and that she (Torisky) had been

71

Doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 19.

72

Doc. no. 13-1 (Deposition of Plaintiff), at 90.

73

Doc. no. 1 (Complaint) ¶ 12 (alteration supplied).

74

Doc. no. 13-1 (Deposition of Plaintiff), at 142-43, 149-50; doc. no. 13-15 (Affidavit of
H.L. Noah) ¶ 30.
75

Doc. no. 13-1 (Deposition of Plaintiff), at 143.

14

“called to the office.”76
Plaintiff’s testimony about the alleged incidents is not comprehensible. One
incident concerned the pregnancy of one of the cheerleaders on Leah Torisky’s team.77
Plaintiff testified as follows:
Q.

First, let’s start with the pregnant [sic]. Was it a cheerleader who
was pregnant?

A.

Yes.

Q.

What did Ms. T[o]reski do?

A.

What I heard her talk about was the fact the girl was lying and it
was an issue with Ms. T[o]reski because of the health and safety
and the parents. So, this is not public knowledge. They would
know. I only can repeat.

Q.

I’m only asking you what you heard. You can’t tell me what you
don’t know.

A.

That’s it.

Q.

What did Ms. T[o]reski do wrong in that situation?

MR. BENNITT: Objection to form.
A.

All I know —

Q.

Allegedly?

76

Id. at 143-46.

77

Id. at 145.

15

A.

All I know is parents complained. She was called to the office.78

Plaintiff also claimed that several cheerleaders under Leah Torisky’s
supervision posted “provocative, slang, curse kind of stuff” on Facebook, and that
Torisky “made those girls sit out.”79 When questioned about the incident, plaintiff
was not able to explain whether the parents who allegedly lodged complaints against
Torisky were upset about the inappropriate Facebook posts, or about Torisky’s
response to the posts.80 She also did not state whether Torisky was reprimanded.81
Principal H.L. Noah and Superintendent Jeff Wooten testified that they never
received complaints about Leah Torisky’s performance as a teacher.82 Further, Noah,
Assistant Principals Jason Simmons and Denise Woods, Guidance Counselor Sonya
Allman, and Science Department Chair Kathy Eldridge testified that they believed
Torinsky was an excellent teacher, and that her job performance was far superior to
that of plaintiff.83
E.

Principal H.L. Noah’s Communications with Superintendent Jeff Wooten
Regarding Plaintiff
78

Id. at 145-46 (alterations supplied).

79

Id. at 144-45.

80

Id. at 146.

81

See doc. no. 13-1 (Deposition of Plaintiff), at 146.

82

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 14; doc. no. 13-15 (Affidavit of H.L. Noah) ¶

30.
83

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 18; doc. no. 13-11 (Affidavit of Denise
Woods) ¶ 21; doc. no. 13-12 (Affidavit of Sonya Allman) ¶ 9; doc. no. 13-13 (Affidavit of Jason
Simmons) ¶ 21; doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 30.

16

Superintendent Jeff Wooten did not have the opportunity to observe the daily
job performance of teachers in the Muscle Shoals School System.84 Accordingly, he
frequently inquired about the performance of new teachers at monthly meetings with
the principals of schools within the system.85 Dr. Wooten believed that “[i]t [was]
important that poor performing teachers [be] terminated before they attain tenure
[because a]fter teachers attain tenure, it is more difficult and expensive to terminate
their employment.”86
When Superintendent Jeff Wooten met with Principal H.L. Noah, they
discussed the new teachers at Muscle Shoals High School.87 During the 2009-10 and
2010-11 school years, Noah frequently expressed serious concerns about plaintiff’s
job performance, including her pattern of arriving late and leaving early, and her
failure to attend faculty meetings, to provide substitute teachers with proper lesson
plans and additional required information, to follow standard laboratory safety
measures, to attend graduation examination training sessions, to attend scheduled
parent-teacher conferences, to communicate with parents, and to submit grades in a

84

See Doc. no. 13-1 (Deposition of Plaintiff), at 99-101; doc. no. 13-9 (Affidavit of Jeff
Wooten) ¶ 8.
85

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 6.

86

Id. ¶ 4 (alterations supplied).

87

Id. ¶ 7; doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 20).

17

timely manner.88
F.

Principal H.L. Noah’s Recommendation Not to Renew Plaintiff’s
Employment Contract
Since the 2010-11 school year was plaintiff’s second year of employment with

the Board, she did not attain tenured status by May of 2011. Thus, the Board could
terminate her employment without cause by simply failing to renew her contract.89
To do so, the Superintendent had to recommend the non-renewal of her contract, and
a majority of the five members of the School Board had to vote in favor of nonrenewal.90
Principal H.L. Noah gave Superintendent Jeff Wooten a written memorandum
recommending the non-renewal of plaintiff’s employment contract on May 16, 2011.91
While the memorandum includes only plaintiff’s name, and does not identify the
reasons for the recommendation, Noah testified that he made the recommendation
based upon the issues previously discussed — all of which he had verbally
communicated to Dr. Wooten during the meetings discussed in Part II(E), supra.92
Superintendent Jeff Wooten and Principal H.L. Noah deny that Dr. Wooten
88

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 7; doc. no. 13-15 (Affidavit of H.L. Noah) ¶

89

See Alabama Code § 16-24-1, et seq.

90

See Alabama Code §§ 16-12-16, 16-24-12.

20.

91

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 9; doc. no. 13-15 (Affidavit of H.L. Noah) ¶
22; id., Exhibit B (05/16/11 Memo from H.L. Noah to Jeff Wooten).
92

Doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 22.

18

“told,” “directed,” or “suggested” to Noah that he should recommend the non-renewal
of plaintiff’s employment contract.93 Rather, Dr. Wooten alleged that, because Noah
was the principal of Muscle Shoals High School and interacted with its teachers on a
daily basis, he deferred to Noah’s personnel recommendations.94
G.

Non-Renewal of Plaintiff’s Employment Contract
Based on Principal H.L. Noah’s description of plaintiff’s performance

problems, and his recommendation not to renew her employment contract,
Superintendent Jeff Wooten exercised his authority and discretion to recommend the
non-renewal of her employment contract to the Board.95 The Board approved the
Superintendent’s recommendation by a 4-1 vote during a meeting held on May 23,
2011.96 Board Members Mike Elliott, Pam Doyle, Don Pendergrass, and Farrell
Southern voted in favor of the recommendation, and Board Member Willis Thompson
voted against the recommendation.97 Thompson, like plaintiff, is African-American.98
1.

Knowledge of Plaintiff

93

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 8; doc. no. 13-15 (Affidavit of H.L. Noah) ¶

94

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 8.

95

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 9.

96

Id. ¶ 10; see also id., Exhibit B (Minutes of 05/23/11 Board Meeting).

20.

97

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 10; see also id., Exhibit B (Minutes of 05/23/11
Board Meeting).
98

Doc. no. 13-7 (Deposition of Pam Doyle), at 7.

19

Of the Board members who voted not to renew plaintiff’s employment contract,
three (Mike Elliott, Pam Doyle, and Farrell Southern) did not know plaintiff; and two
of those three (Elliot and Doyle) did not know her race.99 Southern “assumed” that
plaintiff was African-American as a result of an event that occurred during the
meeting, an event that is discussed in the following section.100 Don Pendergrass did
not remember anything to do with the meeting.101 Due to Pendergrass’s lapse in
memory, his deposition testimony is less than one page in length, contains no evidence
relevant to the present motion, and will not be discussed.
Board Member Willis Thompson and plaintiff have offered conflicting accounts
about how well Thompson knew plaintiff before he cast the sole vote in favor of
renewing her employment contract. Thompson alleged that he “knew of” plaintiff,
was aware of her race, had seen her during a pre-homecoming dance, and heard her
sing at a school basketball game.102 As discussed in Section II(B), supra, however,
plaintiff also stated that she complained to Thompson about the racial “climate” at
Muscle Shoals High School, and that Thompson “would give [her] advice [such as,

99

Doc. no. 13-5 (Deposition of Farrell Southern), at 9-10; doc. no. 13-6 (Deposition of Mike
Elliott), at 6-8; doc. no. 13-7 (Deposition of Pam Doyle), at 6.
100

See doc. no. 13-5 (Deposition of Farrell Southern), at 12.

101

Doc. no. 13-8 (Deposition of Don Pendergrass), at 5.

102

Doc. no. 13-4 (Deposition of Willis Thompson), at 8, 15, 20.

20

“]Just don’t let it bother you, just keep on going.[”]103
2.

Manner of Voting

Superintendent Jeff Wooten originally presented his recommendation not to
renew plaintiff’s employment contract as part of a two-page, ten-item personnel report
that concerned: (i) nine resignations; (ii) one resignation and assignment; (iii) one
employment; (iv) eight re-employments of first-year teachers; (v) three reemployments of second-year teachers; (vi) nine continuing service statuses for
teachers; (vii) one continuing service status for an administrator; (viii) one transfer;
(ix) one termination; and (x) one non-renewal (i.e., plaintiff’s employment contract).104
The report did not identify the reasons for any of Dr. Wooten’s recommendations.105
The minutes of the Board meeting state that, after the Superintendent
recommended the approval of the personnel report, “[a] request to pull personnel
Items I-7 [which concerned the resignation of Special Education Aide Bridgette
Phillips106 ] and X-1 [which concerned the non-renewal of plaintiff’s employment
contract] for separate vote was made by Mr. Thompson.”107 Thompson did not state
103

Doc. no. 13-1 (Deposition of Plaintiff), at 118-19 (alterations supplied).

104

Doc. no. 13-9, Exhibit B (Minutes of 05/23/11 Board Meeting), at 15, 18-19.

105

See id.

106

The record contains no further information regarding Bridgette Phillips, such as her race,
the circumstances of her resignation, or the reasons for Willis Thompson’s request to separate her
vote from other personnel matters.
107

Doc. no. 13-9, Exhibit B (Minutes of 05/23/11 Board Meeting), at 15 (alterations

supplied).

21

his reasons for requesting a separate vote regarding those issues, and the other Board
members did not seek an explanation for his request.108 As a result of that request,
Farrell Southern “assumed” that plaintiff was African-American.109 Following the
separation of the personnel matters,
Superintendent Wooten changed his recommendation to recommend
approval of the Personnel Report excluding·Items I-7 and X-1. A
motion to approve the superintendent’s recommendation was made by
Mr. Thompson and seconded by Mr. Pendergrass. No discussion
followed and the superintendent’s recommendation was subsequently
approved by five yes votes.
Superintendent Wooten recommended approval of the Personnel
Report Items I-7 and X-1. A motion to approve the superintendent’s
recommendation was made by Mr. Southern and seconded by Mrs.
Doyle.
No discussion followed and the superintendent’s
recommendation was subsequently approved by four yes votes and one
no vote. Mr. Thompson cast the no vote stating his opposition to the
specific personnel items was due to lack of information provided on
these items.110
3.

Basis for Decision

The Board did not receive evidence or conduct an independent inquiry into
plaintiff’s performance.111 Rather, the majority of the Board members voted not to
108

Doc. no. 13-4 (Deposition of Willis Thompson), at 39; doc. no. 13-5 (Deposition of
Farrell Southern), at 12; doc. no. 13-6 (Deposition of Mike Elliott), at 8; doc. no. 13-7 (Deposition
of Pam Doyle), at 7.
109

Doc. no. 13-5 (Deposition of Farrell Southern), at 12.

110

Doc. no. 13-9, Exhibit B (Minutes of 05/23/11 Board Meeting), at 15 (emphasis and
alterations supplied).
111

Doc. no. 13-17 (Affidavit of Pam Doyle) ¶¶ 5-7; doc. no. 13-18 (Affidavit of Mike Elliott)
¶¶ 5-7; doc. no. 13-19 (Affidavit of Farrell Southern) ¶¶ 5-7.

22

renew her employment contract based solely upon the Superintendent’s
recommendation.112 Mike Elliot explained his decision as follows:
Q.

Was [plaintiff’s] contract non-renewed for incompetency,
insubordination, failure to perform duties in a satisfactory manner
or decrease in the number of teaching positions or other good
cause? Was that the reason for the non-renewal? Any of those
reasons for the non-renewal?

A.

The superintendent just told us that he had reasons to not renew or
to not keep [plaintiff].113

Pam Doyle offered similar testimony:
Q.

. . . . When you made your decision to not renew the contract of
[plaintiff], did you take into consideration whether or not she was
incompetent, insubordinate, neglected her duty, immoral, failed to
perform her duties in a satisfactory manner, just cause, decrease
in teaching positions? Any of those criteria when y’all made the
vote?

A.

No.

Farrell Southern testified as follows:
Q.

Did you know of any performance reasons, poor performance
reasons, when you did not renew [plaintiff’s] contract?

A.

Again, all we did was act upon the [Superintendent’s]
recommendation.114

112

See doc. no. 13-5 (Deposition of Farrell Southern), at 9-10; doc. no. 13-6 (Deposition of
Mike Elliott), at 6-8; doc. no. 13-7 (Deposition of Pam Doyle), at 6; doc. no. 13-8 (Deposition of
Don Pendergrass), at 5.
113

Doc. no. 13-6 (Deposition of Mike Elliott), at 6 (alterations supplied).

114

Doc. no. 13-5 (Deposition of Farrell Southern), at 8-9 (alterations supplied).

23

Willis Thompson stated that he opposed the Superintendent’s recommendation
that plaintiff’s contract should not be renewed “because [he] did not have enough
information to base a vote of non-renewal.”115 Specifically, he testified that he was
“not fully aware of [plaintiff’s] shortcomings,” and “did not know the situation.”116
H.

Notice to Plaintiff
Principal H.L. Noah gave plaintiff written notice of the non-renewal of her

employment contract on May 24, 2011.117 Plaintiff alleged that the notice came as a
surprise because, “as far as [she] knew, [she] was coming back” to teach during the
2011-12 school year.118 Plaintiff pointed to the fact that she previously had been
approved to attend a training in July of 2011, and that Science Department Chair
Kathy Eldridge had stated that “nobody should be cut from our department.”119
During her deposition, plaintiff testified that, when she asked Noah why her contract
would not be renewed, he responded that he “was not at liberty to say.”120 However,
both her EEOC charge and her complaint state that the reason for the non-renewal was

115

Doc. no. 13-4 (Deposition of Willis Thompson), at 39 (alteration supplied).

116

Id. at 19 (alteration supplied).

117

Doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 25; id., Exhibit C (05/24/11 Notice of Non-

Renewal).
118

Doc. no. 13-1 (Deposition of Plaintiff), at 126-27 (alterations supplied).

119

Id. at 129-30.

120

Id. at 92.

24

“tardiness.”121
I.

Statement by School Resource Officer Gerald Smith
Plaintiff testified that, at some point after the non-renewal of her employment

contract, School Resource Officer Gerald Smith told her that she “needed to look into”
the non-renewal, and that it “was not based on [her] performance.”122 She also
claimed that Smith told her “that [Board Member Willis] Thompson told him in
confidence that the reason he did not vote for [the non-renewal] is because no
information was given. It was some vague allegations . . . . [Smith] said that
[Thompson] asked for proof and none was given to him.”123
J.

Transfer of Mallory Kincaid
After voting not to renew plaintiff’s employment contract, the Board posted an

opening for a science teacher at Muscle Shoals High School.124 At some point within
the next few months, Principal H.L. Noah learned that Mallory Kincaid (a science
teacher at Muscle Shoals Middle School, and the daughter of Superintendent Jeff
Wooten) was interested in teaching at Muscle Shoals High School.125
Principal H.L. Noah asked Assistant Principals Jason Simmons and Denise
121

Doc. no. 1 (Complaint) ¶ 17 ; id., Exhibit A (02/28/12 EEOC Charge).

122

Doc. no. 13-1 (Deposition of Plaintiff), at 106 (alteration supplied).

123

Id. at 108-09 (alterations supplied).

124

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 13.

125

Id. ¶ 12; doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 27.

25

Woods for their opinions of Kincaid, and both responded that she “would be a very
good teacher.”126 Noah then asked Kincaid whether she wanted to transfer to Muscle
Shoals High School, and she answered in the affirmative.127 Accordingly, Noah
recommended the transfer to Superintendent Jeff Wooten.128
Principal H.L. Noah and Superintendent Jeff Wooten deny that Dr. Wooten
“discussed” the possibility of Mallory Kincaid’s transfer with Noah at any time prior
to the issuance of Noah’s written recommendation.129 They also deny that anyone
“asked” Noah to recommend Kincaid’s transfer, or that Dr. Wooten otherwise
“influenced” Noah’s recommendation.130 Instead, Noah testified that he desired
Kincaid’s transfer “because of her excellent reputation as a teacher and because . . .
there was an opening for a science teacher due to the non-renewal of [plaintiff].”131
In any event, Superintendent Jeff Wooten recommended the transfer to the
Board, and the Board unanimously approved his recommendation on June 6, 2011.132
126

Doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 27.

127

Id.

128

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 12; doc. no. 13-15 (Affidavit of H.L. Noah)
¶ 28; id., Exhibit D (06/06/11 Memo from H.L. Noah to Jeff Wooten).
129

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 12; doc. no. 13-15 (Affidavit of H.L. Noah)

130

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 12; doc. no. 13-15 (Affidavit of H.L. Noah)

131

Doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 29 (alteration supplied).

¶ 29.
¶ 29.
132

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 12; id., Exhibit C (Minutes of 06/06/11 Board
Meeting); doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 29.

26

K.

Hiring of Christina Crunk
As a result of the opening created by the transfer of Mallory Kincaid, the Board

posted a job opening for a teaching position at Muscle Shoals Middle School, but
plaintiff did not apply for the position.133 Even if plaintiff had applied, Superintendent
Jeff Wooten would not have recommended that she be hired to fill the position,
because “[she] had been non-renewed from a different position due to poor job
performance,” and because, “if [Dr. Wooten] had intended for [plaintiff] to remain
employed by the Board as a teacher, [he] would not have recommended the
non-renewal of her employment contract.”134 Dr. Wooten instead recommended
Christina Crunk for the position, and the Board approved his recommendation.135
Plaintiff alleged that when Crunk was hired, she “was about to graduate from college,”
and “had no experience.”136
L.

Plaintiff’s EEOC Charge
Plaintiff filed a Charge of Discrimination against the “Muscle Shoals City

Schools” with the Equal Employment Opportunity Commission (“EEOC”) on

133

Doc. no. 13-1 (Deposition of Plaintiff), at 153; doc. no. 13-9 (Affidavit of Jeff Wooten)

134

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 13 (alterations supplied).

135

Id.

136

Doc. no. 13-1 (Deposition of Plaintiff), at 117.

¶ 13.

27

November 18, 2011.137 She alleged that her employment contract was not renewed
“because of [her] race in violation of Title VII of the Civil Rights Act of 1964, as
amended.”138 The EEOC issued a Notice of Right to Sue on February 28, 2012,
stating that it was “unable to conclude that the information obtained establishes
violations of the statutes.”139
M.

Letters of Recommendation
In October of 2012 (i.e., more than a year after the non-renewal of plaintiff’s

employment contract), plaintiff obtained three generic letters of recommendation
addressed “To Whom It May Concern.”140 Two of the letters were written by Muscle
Shoals High School Commerce and Information Technology Teacher Danyelle
Hillman and Physical Education Teacher Brenda Mayes.141 The third letter was
written by School Resource Officer Gerald Smith, who allegedly told plaintiff that she
needed to “look into” her non-renewal based on his conversation with Board Member
Willis Thompson.142
III. DISCUSSION
137

Doc. no. 1 (Complaint), Exhibit A (02/28/12 EEOC Charge).

138

Id. (alteration supplied).

139

Id.

140

Doc. no. 13-2 (Deposition of Plaintiff), Exhibit 9 (Plaintiff’s Rule 26 Disclosures), at 47-

141

Id. at 47-48.

142

Id. at 49; see also id. at 107; Section II(J), supra.

49.

28

Plaintiff alleges that defendants discriminated against her on the basis of her
race by electing not to renew her employment contract in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981.143
A.

Section 1981
Section 1981 provides that
All persons within the jurisdiction of the United States shall have
the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions of every kind,
and to no other.

42 U.S.C. § 1981(a). The Eleventh Circuit has explained that:
Where, as here, a plaintiff predicates liability under Title VII on
disparate treatment and also claims liability under section[] 1981 . . ., the
legal elements of the claims are identical. Lincoln [v. Board of Regents],
697 F.2d [928,] 935 n.6. [(11th Cir. 1983), cert. denied, 464 U.S. 826
(1983)]. A plaintiff asserting either claim must prove intentional
discrimination. Id. Therefore, [a court] need not discuss [a] plaintiff’s
Title VII claims separately from his section 1981 . . . claims.
Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985) (alterations supplied).
B.

Title VII
Title VII prohibits an employer from discriminating “against any individual

143

Doc. no. 1 (Complaint) ¶¶ 1.

29

with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1).

Plaintiff has offered no direct evidence of discrimination.

Consequently, the court will apply the framework for assessing claims that are based
on circumstantial evidence. Under that framework, the employee bears the initial
burden of stating a prima facie case of intent to discriminate on the basis of a
protected characteristic — here, race. McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). If the employee does so, the prima facie case gives rise to “a
presumption that the employer unlawfully discriminated against him.”

Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The
employer then bears the burden of producing, but not proving, a legitimate,
nondiscriminatory reason for the challenged employment action. See McDonnell
Douglas, 411 U.S. at 802. “If the [employer] carries this burden of production, the
presumption raised by the prima facie case is rebutted,” Burdine, 450 U.S. at 255, and
“drops from the case.” Id. at 255 n.10 (alteration supplied). Finally, in the third step
of the analysis, the employee “has the opportunity to come forward with evidence,
including the previously produced evidence establishing the prima facie case,
sufficient to permit a reasonable factfinder to conclude that the reasons given by the
employer were not the real reasons for the adverse employment action.” Combs v.
30

Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (citations omitted).
C.

Plaintiff’s Prima Facie Case
In discharge situations, courts generally require a plaintiff to demonstrate that:

(1) she was a member of a class of persons protected by the statute; (2) she was
qualified for the position from which she was discharged; (3) she was, nevertheless,
discharged; and (4) following her discharge, the defendant either replaced the plaintiff
with someone outside her protected class, or retained other employees who were not
within the protected class, and who possessed comparable or lesser qualifications.
See, e.g., Jones v. Bessemer Carraway Medical Center, 137 F.3d 1306, 1311 n.6 (11th
Cir. 1998);144 Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th
144

The Eleventh Circuit held in Jones v. Gerwens, 874 F.2d 1534 (11th Cir. 1989), a case
in which an African-American police officer was suspended as discipline for unauthorized use of
a police vehicle, but white police officers who allegedly committed similar offenses received lesser
discipline, or no discipline at all, that
in cases involving alleged racial bias in the application of discipline for violation of
work rules, the plaintiff, in addition to being a member of a protected class, must
show either (a) that he did not violate the work rule, or (b) that he engaged in
misconduct similar to that of a person outside the protected class, and that the
disciplinary measures enforced against him were more severe than those enforced
against the other persons who engaged in similar misconduct.
Id. at 1540. That holding was questioned in the case accompanying this footnote: i.e., Jones v.
Bessemer Carraway Medical Center, 137 F.3d 1306 (11th Cir. 1998), a case in which an AfricanAmerican, female, licensed practical nurse was discharged for violations of work rules (i.e., failing
to wear a required uniform, and failing to follow a supervisor’s instructions), while white employees
allegedly were treated more favorably for similar conduct. The Eleventh Circuit wrote:
Considering the facts in Jones, our impression is that words about “did not
violate the work rule” are unnecessary to the decision in Jones and are dicta; but we

31

Cir. 1984); Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir. 1980).
Here, it is undisputed that plaintiff is African-American, that she was qualified
for the position of science teacher at Muscle Shoals High School, that her employment
contract was not renewed, and that she was replaced by Mallory Kincaid, a white
female.145 Accordingly, this court holds that plaintiff has established a prima facie
case of discrimination.
D.

Defendant’s Allegedly Legitimate Reasons
Defendants have identified nine allegedly legitimate, non-discriminatory

reasons for their decision not to renew plaintiff’s employment contract, all of which
have been discussed in Part II of this opinion: i.e., (i.) plaintiff’s pattern of arriving
late; (ii) her pattern of leaving early; (iii) her failure to attend mandatory faculty

will discuss them. The pertinent words in Jones demand not two, but three elements:
(1) the plaintiff is a member of a protected class; (2) the plaintiff has engaged —
either (a) disputedly or (b) admittedly — in misconduct similar to persons outside
the protected class; and (3) that similarly situated, nonminority employees (that is,
persons outside the protected class) received more favorable treatment.
We stress that, under the Jones formulation, no plaintiff can make out a prima
facie case by showing just that she belongs to a protected class and that she did not
violate her employer’s work rule. The plaintiff must also point to someone similarly
situated (but outside the protected class) who disputed a violation of the rule and who
was, in fact, treated better.
Id. at 1311 n.6.
145

See doc. no. 14 (Brief in Support of Motion for Summary Judgment), at 17 n.4 (“The
Defendants assume for purpose of this Motion only that [plaintiff] can establish a prima facie case.”)
(alteration supplied).

32

meetings; (iv) her failure to provide substitute teachers with proper lesson plans and
additional required information; (v) her failure to follow standard laboratory safety
measures; (vi) her failure to attend graduation examination training sessions; (vii) her
failure to attend scheduled parent-teacher conferences; (viii) her failure to
communicate with parents; and (ix) her failure to submit grades in a timely manner.
Plaintiff, nevertheless, disputes whether defendants have carried their burden of
production.
The section of plaintiff’s response brief entitled “Second Prong: No Reason
Given for her Termination” begins with the following paragraph:
MARY CASNA, Plaintiff-Appellant, v. CITY OF LOVES PARK,
et al., Defendants-Appellees. Appeal from the United States District
Court for the Northern District of Illinois, Western Division. No. 04 C
50256 — Philip G. Reinhard. argued October, 30 2007 — DECIDED
JULY 24, 2009 No. 07-1044, where the adverse impact comes “on the
heels” of the protected activity, suspicious timing sends case to
fact-finder to decide if it was discriminatory attitude or poor work
performance.146
This court is mystified by the above passage, because plaintiff neither asserts
a claim for retaliation, nor alleges facts to support such a claim.147 The failure of
plaintiff’s counsel to write in complete sentences, as well as his failure to explain the

146

Doc. no. 15 (Response to Motion for Summary Judgment), at 16 (emphasis in original).
Here and elsewhere, all grammatical errors are written exactly as they appear in the brief.
147

See doc. no. 1 (Complaint).

33

relevance of the cited authority to the present litigation, are representative of the
quality of his entire response to defendants’ motion for summary judgment. The
remaining arguments included by counsel under the heading of “Second Prong: No
Reason Given for [Plaintiff’s] Termination”148 actually concern the third prong of the
McDonnell Douglas burden-shifting framework, and will be addressed in Section
III(D), infra.
In any event, an employer can “rebut the presumption of discrimination by
producing evidence that the plaintiff was rejected, or someone else was preferred, for
a legitimate, nondiscriminatory reason. The defendant need not persuade the court
that it was actually motivated by the proffered reasons.” Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981) (emphasis supplied) (citing
Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 (1978)).
Defendants have done so here. Accordingly, they have carried their burden of
production.
E.

Pretext
As a result, the burden shifts back to plaintiff “to come forward with evidence,

including the previously produced evidence establishing the prima facie case,
sufficient to permit a reasonable factfinder to conclude that the reasons given by the
148

Doc. no. 15 (Response to Motion for Summary Judgment), at 16 (alteration and emphasis

supplied).

34

employer were not the real reasons for the adverse employment action.” Combs, 106
F.3d at 1528 (citations omitted). As the Eleventh Circuit admonished in Chapman v.
AI Transport, 229 F.3d 1012 (11th Cir. 2000):
A plaintiff is not allowed to recast an employer’s proffered
nondiscriminatory reasons or substitute his business judgment for that of
the employer. Provided that the proffered reason is one that might
motivate a reasonable employer, an employee must meet that reason
head on and rebut it, and the employee cannot succeed by simply
quarreling with the wisdom of that reason. See Alexander v. Fulton
County, Ga., 207 F.3d 1303, 1341 (11th Cir. 2000) (Title VII case) (“It
is not the court’s role to second-guess the wisdom of an employer’s
decisions as long as the decisions are not racially motivated.”); Combs,
106 F.3d at 1541-43. We have recognized previously and we reiterate
today that:
federal courts “do not sit as a super-personnel department
that reexamines an entity’s business decisions. No matter
how medieval a firm’s practices, no matter how
high-handed its decisional process, no matter how mistaken
the firm’s managers, the ADEA does not interfere. Rather
our inquiry is limited to whether the employer gave an
honest explanation of its behavior.”
Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991)
(quoting Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th
Cir.1988) (citations omitted)); see also Nix v. WLCY Radio/Rahall
Communications, 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.”); Abel v. Dubberly, 210 F.3d 1334, 1339 n. 5
(11th Cir.2000). We “do not … second-guess the business judgment of
employers.” Combs, 106 F.3d at 1543; accord Alexander, 207 F.3d at
1339, 1341; Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d
1354, 1361 (11th Cir.1999) (“We have repeatedly and emphatically held
35

that a defendant may terminate an employee for a good or bad reason
without violating federal law. We are not in the business of adjudging
whether employment decisions are prudent or fair.” (internal citation
omitted)).
Chapman, 229 F.3d at 1030 (footnote omitted). “With respect to the issue of job
performance, the question is whether [the decision-maker] had a good faith belief that
plaintiff’s job performance was subpar.” Alexander v. Baldwin County Board of
Education, No. 07-0333-CB-C, 2008 WL 3551194, * 17 (S.D. Ala. Aug. 12, 2008)
(emphasis and alteration supplied) (citing Equal Employment Opportunity
Commission v. Total System Services, Inc., 221 F.3d 1171, 1176-77 (11th Cir. 2000)).
Further, an employer’s assertion that an employee was fired for violating a
“‘work rule’. . . is arguably pretextual when [the employee] submits evidence (1) that
[he or] she did not violate the cited work rule, or (2) that if [he or] she did violate the
rule, other employees outside the protected class, who engaged in similar acts, were
not similarly treated.” Jordan v. Warehouse Services, 81 F. Supp. 2d 1257, 1271
(M.D. Ala. 2000) (alterations in original) (quoting Damon v. Fleming Supermarkets
of Florida, Inc., 196 F.3d 1354, 1363 (11th Cir. 1999)).
Under the second prong of the Jordan test, a plaintiff can avoid summary
judgment by proving that if “she did violate the rule, other employees outside the
protected class, who engaged in similar acts, were not similarly treated.” Jordan, 81

36

F. Supp. 2d at 1271.
When a claim alleges discriminatory discipline, to determine whether
employees are similarly situated, we evaluate “whether the employees
are involved in or accused of the same or similar conduct and are
disciplined in different ways.” Maniccia v. Brown, 171 F.3d 1364, 1368
(11th Cir. 1999) (citations and quotation marks omitted). When making
that determination, “we require that the quantity and quality of the
comparator’s misconduct be nearly identical to prevent courts from
second-guessing employers’ reasonable decisions and confusing apples
with oranges.” Id. (citation omitted); see also Nix v. WLCY Radio/Rahall
Commc’ns, 738 F.2d 1181, 1185 (11th Cir. 1984) (requiring a plaintiff
bringing a discriminatory discipline claim to show “that the misconduct
for which he was discharged was nearly identical to that engaged in by
an employee outside the protected class whom the employer retained”)
(citations, quotation marks, and alterations omitted).
Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006).
The decision not to renew plaintiff’s employment contract was made by three,
successive decision-makers: first by Principal H.L. Noah, who recommended the nonrenewal to Superintendent Jeff Wooten; second by Dr. Wooten, who recommended
to the Board that plaintiff’s employment contract not be renewed; and finally by the
Board, four members of which voted to approve the recommendation. Plaintiff brings
claims against only the last two decision-makers: i.e., Dr. Wooten and the Board.
Nevertheless, his discussion will address all three decision-makers in turn.
1.

Principal H.L. Noah’s Decision to Recommend Non-Renewal to
Superintendent Jeff Wooten
a.

Tardiness
37

Principal H.L. Noah received several reports from Assistant Principal Jason
Simmons and Science Department Chair Kathy Eldridge that plaintiff was late for
school.149 Plaintiff admitted that she was sometimes tardy at the beginning of the
2009-10 school year.150
b.

Failure to attend mandatory faculty meetings

Plaintiff acknowledged that she missed some faculty meeting during the
2009-10 and 2010-11 school years, but testified that football, basketball, and tennis
coaches had missed meetings, but were not reprimanded.151 Plaintiff has not produced
the names of any of the coaches, let alone provided the circumstances under which
they allegedly missed the meetings (including, e.g., whether their absences had been
excused). She also has not alleged that the coaches were implicated in the eight other
forms of misconduct of which she was accused. Accordingly, this court holds that
the coaches are not appropriate comparators.
c.

Failure to provide substitute teachers with proper lesson plans
and additional required information

Science Department Chair Kathy Eldridge and science teacher Leella Holt
received several reports from various substitute teachers that plaintiff had failed to
149

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 6; doc. no. 13-13 (Affidavit of Jason
Simmons) ¶ 10; doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 18.
150

Doc. no. 13-1 (Deposition of Plaintiff), at 50-52.

151

Doc. no. 13-1 (Deposition of Plaintiff), at 55-60, 121-23.

38

provide them with proper lesson plans.152 Eldridge and Holt found either that plaintiff
had left no lesson plans, or that she had left plans that did not keep her students
occupied for the duration of the class period.153 Eldridge was also not able to locate
seating charts, descriptions of school emergency procedures, and notes about students’
medical needs.154 Eldridge repeatedly complained to Principal H.L. Noah regarding
plaintiff’s omissions.155
Plaintiff denied that she failed to provide substitute teachers with proper lesson
plans and additional required information.156 Even so, she admitted that, on one
occasion, a substitute teacher could not locate her lesson plans, that another teacher
reported the incident to Principal H.L. Noah, and that Noah brought the incident to
plaintiff’s attention.157 Based on the uncontroverted evidence that Science Department
Chair Kathy Eldridge repeatedly complained to Principal H.L. Noah, this court holds
that Noah honestly believed that plaintiff had failed to provide substitute teachers with
proper lesson plans and additional required information.
152

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 8; doc. no. 13-16 (Affidavit of Leella

Holt) ¶ 6.
153

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 8; doc. no. 13-16 (Affidavit of Leella

Holt) ¶ 6.
154

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 8.

155

Id.; doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 16; doc. no. 13-16 (Affidavit of Leella Holt)

156

Doc. no. 13-1 (Deposition of Plaintiff), at 60-64.

157

Id.

¶ 6.

39

d.

Failure to follow standard laboratory safety measures

Science Department Chair Kathy Eldridge and science teacher Leella Holt
allegedly witnessed a number of safety violations by plaintiff’s students.158 On one
occasion, Holt noticed that plaintiff’s students were handling acids without wearing
goggles.159 Holt reported the incident to an unidentified school administrator.160 On
multiple other occasions, Eldridge observed that plaintiff’s students were handling
acids without wearing goggles or aprons.161 Eldridge also saw one of plaintiff’s
students dump the contents of an open, glass container onto the grass.162 Eldridge
reported the incidents to Principal H.L. Noah.163
Plaintiff denied that she allowed her students to handle chemicals without
wearing goggles and aprons, but admitted that she allowed them to dump a container
of water and food coloring onto the grass.164 Based on the undisputed evidence that
Science Department Chair Kathy Eldridge repeatedly complained to Principal H.L.
Noah, this court holds that Noah honestly believed that plaintiff had failed to follow

158

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶¶ 10-12; Doc. no. 13-16 (Affidavit of
Leella Holt) ¶ 8.
159

Doc. no. 13-16 (Affidavit of Leella Holt) ¶ 8.

160

Id.

161

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶¶ 10-12.

162

Id.

163

Id.

164

Doc. no. 13-1 (Deposition of Plaintiff), at 68-69.

40

standard laboratory safety measures.
e.

Failure to attend graduation examination training sessions

Building Test Coordinator Judy Noah, the wife of Principal H.L. Noah, noticed
that plaintiff repeatedly failed to attend scheduled training sessions on administering
the high school graduation examination.165 Ms. Noah reported plaintiff’s failure to
attend the training to Principal H.L. Noah.166 Plaintiff admitted that she missed the
training.167
f.

Failure to attend scheduled parent-teacher conferences

The parents of several of plaintiff’s students complained to Principal H.L.
Noah, his wife, Judy Noah, and Assistant Principals Denise Woods and Jason
Simmons that plaintiff had failed to attend scheduled parent-teacher conferences.168
In turn, Simmons reported the complaints he received to Principal H.L. Noah.169
Plaintiff denied missing any appointments with parents.170

Based on the

uncontroverted evidence of Simmons’s reports to Noah, this court holds that Noah
165

Doc. no. 13-14 (Affidavit of Judy Noah) ¶ 9.

166

Id.

167

Doc. no. 13-1 (Deposition of Plaintiff), at 74-75.

168

Doc. no. 13-11 (Affidavit of Denise Woods) ¶ 11; doc. no. 13-13 (Affidavit of Jason
Simmons) ¶ 13; doc. no. 13-14 (Affidavit of Judy Noah) ¶ 8; doc. no. 13-15 (Affidavit of H.L. Noah)
¶ 15.
169

Doc. no. 13-13 (Affidavit of Jason Simmons) ¶ 13; doc. no. 13-15 (Affidavit of H.L.
Noah) ¶ 15.
170

Doc. no. 13-1 (Deposition of Plaintiff), at 72.

41

honestly believed that plaintiff had failed to attend scheduled parent-teacher
conferences.
g.

Failure to communicate with parents

The parents of several of plaintiff’s students complained to Principal H.L. Noah
that plaintiff did not communicate with them when their children’s grades fell.171
Parents also complained to Principal H.L. Noah’s wife, Judy Noah, Assistant Principal
Jason Simmons, Guidance Counselor Sonya Allman, and Science Department Chair
Kathy Eldridge that plaintiff did not return their telephone calls or respond to
e-mails.172 In turn, Simmons, Allman, and Eldridge reported the complaints to
Principal H.L. Noah.173
Plaintiff denied awareness of parent complaints regarding her failure to
communicate.174 Inconsistently with that denial, plaintiff recalled that Principal H.L.
Noah spoke to her about failing to return a parent’s e-mail message.175 Based on the
undisputed evidence that Noah received a number of complaints from parents, and
171

Doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 15.

172

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 15; doc. no. 13-12 (Affidavit of Sonya
Allman) ¶ 7; doc. no. 13-13 (Affidavit of Jason Simmons) ¶ 13; doc. no. 13-14 (Affidavit of Judy
Noah) ¶ 8.
173

Doc. no. 13-10 (Affidavit of Kathryn Eldridge) ¶ 15; doc. no. 13-12 (Affidavit of Sonya
Allman) ¶ 7; doc. no. 13-13 (Affidavit of Jason Simmons) ¶ 13; doc. no. 13-15 (Affidavit of H.L.
Noah) ¶ 15.
174

Doc. no. 13-1 (Deposition of Plaintiff), at 72-73.

175

Id.

42

reports of complaints from Simmons, Allman, Eldridge, this court holds that Noah
honestly believed that plaintiff had failed to communicate with parents.
h.

Failure to submit grades in a timely manner

Guidance Counselor Sonya Allman informed Principal H.L. Noah that plaintiff
repeatedly failed to provide student grades by the deadline.176 Plaintiff did not recall
providing student grades late.177 Based on the uncontroverted evidence of Allman’s
complaint to Noah, this court holds that Noah honestly believed that plaintiff had
failed to submit grades in a timely manner.
i.

Leaving school early

Science Department Chair Kathy Eldridge informed Principal H.L. Noah that
she often saw plaintiff leave early on those days when her planning period occurred
at the end of the day.178 Plaintiff denied leaving early without permission.179 Based
on the undisputed evidence of Eldridge’s complaint to Noah, this court holds that
Noah honestly believed that plaintiff had left school early.
2.

Superintendent Jeff Wooten’s Decision to Recommend Non-Renewal
to the Board

176

Doc. no. 13-12 (Affidavit of Sonya Allman) ¶ 8; doc. no. 13-15 (Affidavit of H.L. Noah)

177

Doc. no. 13-1 (Deposition of Plaintiff), at 77-80.

178

Doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 19.

179

Doc. no. 13-1 (Deposition of Plaintiff), at 90.

¶ 17.

43

Principal H.L. Noah frequently expressed concerns about plaintiff’s job
performance to Superintendent Jeff Wooten over the course of the 2009-10 and 201011 school years.180 Noah gave Dr. Wooten a written memorandum recommending the
non-renewal of her employment contract on May 16, 2011.181

While the

memorandum includes only plaintiff’s name, and does not identify the reasons for the
recommendation, Noah testified that he made the recommendation “due to the
problems with [her] job performance discussed above.”182 Dr. Wooten and Noah deny
that Dr. Wooten “told,” “directed,” or “suggested” to Noah that he should recommend
the non-renewal of plaintiff’s employment contract.183
Superintendent Jeff Wooten did not have the opportunity to observe the daily
job performance of teachers in the Muscle Shoals School System.184 Thus, Dr.
Wooten alleged that he trusted Noah’s judgment and gave deference to Noah’s
personnel recommendations.185

180

Accordingly, this court holds that Dr. Wooten

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 7; doc. no. 13-15 (Affidavit of H.L. Noah) ¶

20.
181

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 9; doc. no. 13-15 (Affidavit of H.L. Noah) ¶
22; id., Exhibit B (05/16/11 Memo from H.L. Noah to Jeff Wooten).
182

Doc. no. 13-15 (Affidavit of H.L. Noah) ¶ 22 (alteration supplied).

183

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 8; doc. no. 13-15 (Affidavit of H.L. Noah) ¶

20.
184

See Doc. no. 13-1 (Deposition of Plaintiff), at 99-101; doc. no. 13-9 (Affidavit of Jeff
Wooten) ¶ 8.
185

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 8.

44

honestly believed that plaintiff suffered from the performance problems that Noah
reported to him in 2009 through 2011.
3.

The Board’s Decision Not to Renew Plaintiff’s Employment
Contract

Based on Principal H.L. Noah’s description of plaintiff’s performance
problems, and his recommendation not to renew her employment contract,
Superintendent Jeff Wooten exercised his authority and discretion to recommend the
non-renewal of the contract to the Board.186 Dr. Wooten did not provide the Board
with the reasons for his recommendation.187
At a meeting held on May 23, 2011, the Board voted to approve the
recommendation not to renew plaintiff’s employment contract by a vote of 4-1.188
Board Members Mike Elliott, Pam Doyle, Don Pendergrass, and Farrell Southern
voted in favor of the recommendation, and Board Member Willis Thompson voted
against the recommendation.189
To prove that defendants’ nine proffered, legitimate reasons for not renewing
her employment contract are pretexts for intentional discrimination, plaintiff

186

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 9.

187

See, e.g., doc. no. 13-9, Exhibit B (Minutes of 05/23/11 Board Meeting), at 15, 18-19.

188

Id. ¶ 10; see also id., Exhibit B (Minutes of 05/23/11 Board Meeting).

189

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 10; see also id., Exhibit B (Minutes of
05/23/11 Board Meeting).

45

emphasizes two allegations: i.e., that Principal H.L. Noah did not proffer those
reasons when she asked about the non-renewal; and that Superintendent Jeff Wooten
did not provide the reasons when the Board voted on the non-renewal.190
Plaintiff’s arguments reflect a number of misapprehensions of fact. In response
to defendants’ motion for summary judgment, plaintiff asserts that Principal H.L.
Noah “would not tell” her the Board’s reasons for not renewing her employment
contract.191 However, both her EEOC charge and her complaint state that the reason
for the non-renewal was “tardiness.”192
Further, plaintiff argues that, “[w]hen [Board member Willis] Thompson asked
for the reason to fire [her], the superintendent did not tell him.”193 However, the
minutes of the Board meeting do not show that Thompson “asked” the Superintendent
anything.194 Instead, they state that the recommendation not to renew plaintiff’s
employment contract was adopted without discussion, and it only was after the fact
that Thompson mentioned a “lack of information provided” on the issue as his reason

190

See doc. no. 15 (Response to Motion for Summary Judgment), at 17-19. As noted above,
those arguments confusingly appear in a section entitled “Second Prong: No Reason Given for
[Plaintiff’s] Termination.” Id. at 16 (alteration and emphasis supplied).
191

Id. at 18.

192

Doc. no. 1 (Complaint) ¶ 17 ; id., Exhibit A (02/28/12 EEOC Charge).

193

See doc. no. 15 (Response to Motion for Summary Judgment), at 18 (alterations supplied).

194

See doc. no. 13-9, Exhibit B (Minutes of 05/23/11 Board Meeting), at 15.

46

for casting the sole vote against the recommendation.195 Although plaintiff testified
that Campus Resource Officer Gerald Smith told her that Thompson “asked for proof
and none was given to him,”196 that testimony is multiple hearsay which plaintiff’s
counsel did not address at Thompson’s deposition.
In addition to her misconstruction of the facts, plaintiff also makes several
misstatements of law. First, plaintiff argues that “Texas Dept. Of Community affairs
v. Burdine, 450 U.S. 248 (1981), states that the employee, Baugh, has a right to know
what she is being fired for. The board had a right to know what Baugh was being
fired for. Neither of them were given that right. (Burdine, supra).”197 It is telling that
plaintiff provides no pinpoint citations to the Burdine opinion. Upon review, no
portion of Burdine gives an employee the “right” to receive an explanation for an
adverse employment action from her employer. Likewise, Burdine does not give a
decision-maker the “right” to receive an explanation for a recommended personnel
decision from a subordinate.
Plaintiff also contends that:
Mock v. Bell Helicopter, 196 F. Appx. 77 (11th Cir. 2006):
provides that where the employer fails, when asked, to provide a reason
for the challenged employment action then the fact finder can presume
195

Id. at 15.

196

Doc. no. 13-1(Deposition of Plaintiff), at 108-09 (alterations supplied).

197

Doc. no. 15 (Response to Motion for Summary Judgment), at 17.

47

the employer was motivated by an unlawful discriminatory reason. This
is what happened at the Board meeting to terminate Baugh. When Mr.
Thompson asked for the reason to fire Ms. Baugh, the superintendant did
not tell him. The inference to this fact, is that Mr. Wooten did not know
the reason for terminating Ms. Baugh, except to mover [sic] his own
daughter into that position. (Plaintiff’s facts, # 15, 16, 17, 18, 19, and
Mr. Thompson deposition, defendant’s ex 4, Tab B, page 22, lines 4 10). In fact, Mr. Thompson did not learn of the alleged poor
performance given for Baugh’s non-renewal, until February 12, 2012,
almost eight months later, and even then, it was not documented.198
The citation to “Mock v. Bell Helicopter, 196 F. Appx. 77” takes the court to
United States v. Fields, 196 F. App’x 77 (3d Cir. 2006), a criminal appeal from the
Third Circuit with no bearing on this action. Assuming that plaintiff is citing to Mock
v. Bell Helicopter Textron, Inc., 196 F. App’x 773 (11th Cir. 2006), the Eleventh
Circuit in that case vacated an order granting an employer’s motion for summary
judgment on a former employee’s claims for discriminatory termination because it
was
satisfied that Mock presented sufficient evidence to create a genuine
issue of material fact as to whether Bell’s reason for his termination was
a pretext for age discrimination. There is a dispute as to when Bell
informed Mock of the reason for his termination. At the time Bell
informed him that he was being fired, he insisted that it give him the
reason for its decision. Bell refused to do that. It was not until later, in
a letter, that it told him that he had been terminated for unacceptable
performance. In light of Bell’s refusal to tell Mock — at the time it fired
him — why his employment had come to an end, a trier of fact
reasonably could find that the letter constituted a pretext for
198

Id. at 17-19.

48

discrimination.
Mock, 196 F. App’x at 774.
In sum, Mock concerns a former employee’s request to his employer to provide
the reasons for an adverse employment action that had already been taken. It does not
concern a member of a decision-making body’s request to his subordinate to provide
the reasons for an adverse employment action that the decision-maker was
considering, but had not yet taken. Thus, Mock may apply to plaintiff’s claim that
Principal H.L. Noah did not proffer reasons when she asked about her non-renewal,
but it certainly does not apply to her contention that Superintendent Jeff Wooten did
not provide reasons when the Board voted on the non-renewal.
With regard to the alleged failure to provide information by Principal H.L.
Noah, a district court from the Eleventh Circuit distinguished Mock where an
employee admitted that the employer “referred to [one of the proffered reasons for the
adverse action] when he terminated her from her employment.” McCollum v. Amtren,
Inc., No. 2:05-cv-1237-WKW, 2007 WL 896270, *36 (M.D. Ala. Mar. 22, 2007)
(alteration supplied). As in Mock, the plaintiff in this case admits in both her EEOC
charge and her complaint that defendants provided one of the reasons for the nonrenewal of her employment contract in response to her inquiries: i.e., “tardiness.”199
199

Doc. no. 1 (Complaint) ¶ 17 ; id., Exhibit A (02/28/12 EEOC Charge).

49

With respect to the alleged failure to provide information by Superintendent
Jeff Wooten, two Board members (i.e., Mike Elliott and Pam Doyle) testified that they
did not know that plaintiff was African-American.200 A third Board member (i.e.,
Willis Thompson) stated that he was aware of plaintiff’s race, and nevertheless voted
to renew her employment contract.201 Thus, even assuming that the two remaining
Board members knew plaintiff’s race, and voted against her renewal for a
discriminatory reason, their votes would not have constituted the three-person
majority required for non-renewal.202
In an attempt to establish that the Board members were aware of her race,
plaintiff contends that they “heard her name, which is traditionally an AfricanAmerican name and not a white name.”203 She also claims that “they just voted her
in two years again and her race is on her application.”204 However, the record is
devoid of evidence that “Juanica Baugh” is “an African-American name,” or that the
Board members knew that it was such a name. There is also no evidence that the
Board members read plaintiff’s application, that they “voted her in” when she was

200

Doc. no. 13-6 (Deposition of Mike Elliott), at 6-8; doc. no. 13-7 (Deposition of Pam
Doyle), at 6.
201

Doc. no. 13-4 (Deposition of Willis Thompson), at 8, 15, 20.

202

See Alabama Code §§ 16-12-16, 16-24-12.

203

Doc. no. 15 (Response to Motion for Summary Judgment), at 24.

204

Id. at 25.

50

hired, or that they remembered her from two years before the non-renewal.
It is important to emphasize that this court does not rule on whether it is wise,
fair, or responsible for a school board to approve a superintendent’s personnel
recommendations without hearing his reasons. This court only reviews whether
plaintiff’s employment contract was not renewed on the basis of a discriminatory
animus. See Alexander v. Fulton County, Georgia, 207 F.3d 1303, 1341 (11th Cir.
2000) (“It is not the court’s role to second-guess the wisdom of an employer’s
decisions as long as the decisions are not racially motivated.”). For the reasons
explained above, plaintiff has not shown that defendants’ proffered reasons for the
non-renewal are pretextual.
F.

Additional Grounds for Summary Judgment on Claims Against
Superintendent Jeff Wooten
Although this court could grant the motion for summary judgment in favor of

both defendants solely upon the grounds discussed above, it would be remiss not to
discuss the additional grounds for granting the motion with respect to the claims
against Superintendent Jeff Wooten.
1.

Qualified Immunity with Respect to Plaintiff’s § 1981 and Title VII
Claims

Superintendent Jeff Wooten has interposed as a defense the doctrine of

51

qualified immunity,205 which provides “complete protection for governmental officials
sued in their individual capacities as long as ‘their conduct violates no clearly
established statutory or constitutional rights of which a reasonable person would have
known.’” Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir. 2001) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The purpose of this immunity is to allow government officials to carry
out their discretionary duties without the fear of personal liability or
harassing litigation, see Anderson v. Creighton, 483 U.S. 635, 638, 107
S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987), protecting from suit “all but
the plainly incompetent or one who is knowingly violating the federal
law.” Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir. 2001)
. . . . In order to receive qualified immunity, the public official “must first
prove that ‘he was acting within the scope of his discretionary authority
when the allegedly wrongful acts occurred.’” Courson v. McMillian,
939 F.2d 1479, 1487 (11th Cir. 1991) (quoting Rich v. Dollar, 841 F.2d
1558, 1563 (11th Cir. 1988)).
Lee v. Ferraro, 284 F.3d 1188, 1193-94 (11th Cir. 2002); see also, e.g., Chesser v.
Sparks, 248 F.3d 1117, 1121-22 (11th Cir. 2001); Lassiter v. Alabama A & M
University Board of Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc).
When an official establishes that he was acting within his discretionary
authority in performing a contested act, “the burden shifts to the plaintiff to show that
qualified immunity is not appropriate.” Lee, 284 F.3d at 1194; see also, e.g.,
Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997) (“Once an officer or official has
205

Doc. no. 14 (Brief in Support of Motion for Summary Judgment), at 26-30.

52

raised the defense of qualified immunity, the burden of persuasion as to that issue is
on the plaintiff.”) (citing Suissa v. Fulton County, 74 F.3d 266, 269 (11th Cir. 1996);
Barnette v. Folmar, 64 F.3d 598, 600 (11th Cir. 1995); Lassiter, 28 F.3d at 1150 n.
3).
Superintendent Jeff Wooten’s duties as Superintendent are governed by the
Board’s Policy Manual and Alabama state law.206 The Policy Manual states that a
Superintendent “recommends for dismissal all employees of the Board except
professional officers of the Board.”207 Likewise, state law allows the Superintendent
to recommend the termination of non-tenured teachers, and gives him discretion to
choose which teachers to recommend for termination.208 Thus, Dr. Wooten has borne
his burden of showing that he acted within his discretionary authority by
recommending the non-renewal of plaintiff’s employment contract.
The section of plaintiff’s response to defendant’s motion for summary judgment
entitled “Case Against Jeff Wooten” states as follows:
Plaintiff asserts the above facts and argument. Morton v.
Kirkwood, 707 F.3d 1276 (11 Cir. 2013): Qualified immunity denied
based on Morton’s version of the facts, that the officer shot an unarmed
man in a stationary vehicle while having no reason to believe that the
man would be anyone in danger. Feliciano v. City of Miami Beach, 707
206

Doc. no. 13-9 (Affidavit of Jeff Wooten) ¶ 3.

207

Id; id., Exhibit A (Board Policy Manual), at 485.

208

Id. ¶ 4; see also Alabama Code § 16-12-16; Alabama Code ¶ 16-24-1 et seq.

53

F.3d 1244 (11th Cir. 2013): uncorroborated testimony can defeat
summary judgment. Berry v. Chicago Transit Authority, No. 07-2288
(7th Cir. August 23, 2010). See also, Grider v. City of Auburn, No.
09-13261 Docket No. 07-01031 (11th Cir. September 7, 2010).209
This court is not equal to the task of deciphering that collection of sentence
fragments and string citations to unrelated authority. Plaintiff has not borne her
burden of showing the inappropriateness of qualified immunity for the
Superintendent’s recommendation not to renew her employment contract.
Accordingly, this court holds that Dr. Wooten is entitled to qualified immunity.
2.

Propriety of Plaintiff’s Title VII Claims

Title VII provides that:
It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion,
sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive
any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such
individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a) (emphasis supplied). Title VII defines an “employer” as “a

209

Doc. no. 15 (Response to Motion for Summary Judgment), at 26.

54

person engaged in an industry affecting commerce who has fifteen or more
employees. . . .” 42 U.S.C. § 2000e(b). As a result, the Eleventh Circuit has held that
“a Title VII claim may be brought against only the employer and not against an
individual employee.” Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006)
(emphasis in original).
Defendants argue that plaintiff “cannot sustain a Title VII claim against
[Superintendent Jeff] Wooten since he was not her employer.”210 As is evident from
the section of plaintiff’s response brief quoted above,211 plaintiff makes no effort to
address the argument that she was employed by the Board, not by the Superintendent.
Accordingly, Dr. Wooten is entitled to summary judgment on plaintiff’s Title VII
claim.
IV. CONCLUSION AND ORDER
For the reasons explained above, defendants’ motion for summary judgment
is GRANTED, and all of plaintiff’s claims are DISMISSED with prejudice. Costs are
taxed to plaintiff. The Clerk is directed to close this file.
DONE and ORDERED this 9th day of July, 2013.

210

Doc. no. 14 (Brief in Support of Motion for Summary Judgment), at 30 (alteration

supplied).
211

Doc. no. 15 (Response to Motion for Summary Judgment), at 26.

55

______________________________
United States District Judge

56