Witt v. Franklin County Board of Education

Filing 13

MEMORANDUM OPINION AND ORDER OF DISMISSAL For the reasons noted above, the FCBOE's motion to dismiss is GRANTED, and this case is DISMISSED without prejudice for failing to plead sufficient facts to support a retaliation claim. Signed by Judge Abdul K Kallon on 12/19/2014. (PSM)

FILED
2014 Dec-19 AM 11:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
RESA A. WITT,
Plaintiff,

vs.
FRANKLIN COUNTY BOARD OF
EDUCATION,
Defendant.

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Civil Action Number
3:14-CV-01395-AKK

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Resa Witt (“Witt”) filed a lawsuit against the Franklin County Board of
Education (“FCBOE”), asserting retaliation in violation of Title VII of the Civil
Rights act of 1964. Doc. 1 at 1. According to Witt, in retaliation for a lawsuit she
filed against the FCBOE in March 2011, the FCBOE retaliated against her by (1)
placing her on the work duty schedule twice in a six-week period instead of just
once like her coworkers, doc. 1 at ¶ 8; (2) placing her on the bus duty schedule
after she informed school administration that she had several medical conditions
that made it difficult and dangerous for her to stand for long periods of time, id. at
¶¶ 9-11; and (3) formally reprimanding her after she called the police to her
classroom in response to a student verbally threatening her, id. at ¶¶13-14. Before
the court is the FCBOE’s motion to dismiss for failure to state a claim pursuant to
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Federal Rule of Civil Procedure 12(b)(6), doc. 5, in which the FCBOE contends
that Witt cannot establish a prima facie case because she cannot show a causal link
between the protected activity and the alleged retaliatory conduct. Doc.5 at 3.
Alternatively, the FCBOE contends that the alleged retaliatory conduct does not
rise to an adverse employment action. Id. at 4. Because the court agrees with the
alternative argument, the FCBOE’s motion to dismiss is due to be granted.
I. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and conclusions”
or “a formulaic recitation of the elements of a cause of action” are insufficient.
Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). “Nor does
a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (citing Bell Atl. Corp., 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be granted. “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
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true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678
(citations and internal quotation marks omitted). A complaint states a facially
plausible claim for relief “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted). The complaint must establish “more
than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Bell
Atl. Corp., 550 U.S. at 555 (“Factual allegations must be enough to raise a right to
relief above the speculative level.”). Ultimately, this inquiry is a “context-specific
task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
II. PROCEDURAL AND FACTUAL BACKGROUND
Accepting the factual allegations as true, as it must on a motion to dismiss
under Rule 12(b)(6), see, e.g. Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231
(11th Cir. 2000), the court notes that the conduct that gave rise to this lawsuit
began in March of 2011, when Witt and a coworker filed a lawsuit against the
FCBOE, alleging gender discrimination claims for failure to hire and promote, and
a claim for retaliation. Doc. 1 at ¶ 7. While Witt was prosecuting her lawsuit, she
allegedly experienced additional retaliation by (1) being placed on the work duty
schedule twice for a six week period unlike her coworkers who only had to work
once; (2) being placed on the afternoon bus duty schedule after she purportedly
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informed the school district superintendent and the school principal that she had
several medical conditions that made it difficult and dangerous for her to stand for
long periods of time; and (3) being reprimanded for calling the police to her
classroom in response to a verbal threat by a student on February 28, 2013. 1 Id. at ¶
8-14; Doc. 10-1 at 2-3, 77. In response to her placement on the afternoon bus
schedule, Witt provided the school superintendent and the principle a November
2012 letter from her physician excusing her from bus duty because of medical
reasons. Id. at ¶ 10. However, the FCBOE refused to remove Witt from bus duty
and, one day, Witt collapsed because of a spike in blood pressure and had to be
hospitalized. Id. at ¶ 10. Witt subsequently filed this lawsuit on July 21, 2014. Doc.
1 at 1.
III. ANALYSIS
The FCBOE has moved to dismiss on the basis that, as pleaded, Witt cannot
establish a prima facie case of retaliation. To establish a prima facie case, Witt
must show that: (1) she engaged in protected activity or expression; (2) she
suffered an adverse employment action; and (3) that a causal connection exists
between the adverse employment action and the protected conduct. Sims v.
Burlington Coat Factory Warehouse of Alabama, Inc., 330 Fed. Appx. 1555, 1566
(11th Cir. 1997). At issue here are the second and third prongs. Specifically, the
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The incident regarding the verbal threat and the reprimand occurred the same day
the court dismissed Witt’s original lawsuit.
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FCBOE claims that the alleged retaliatory actions are too temporally remote from
the filing of the original lawsuit to prove causation, and that the alleged retaliatory
acts are not severe enough to constitute an adverse employment action. The court
addresses the FCBOE’s contentions fully below.
A. There is temporal proximity between Witt’s protected activity and
the alleged retaliatory actions.
In support of its causation argument, the FCBOE asserts that Witt “cannot
show that any of the instances alleged in the complaint were causally connected to
any protected activity or expression, much less that filing a lawsuit on March 22,
2011 was the ‘but for’ cause of any alleged adverse action.” 2 Doc. 5 at 3.
Basically, the FCBOE argues that Witt cannot establish a close temporal proximity
between the filing of her first lawsuit on March 22, 2011 and the alleged retributive
actions that occurred in November of 2012 and March of 2013, and cites several
cases that support the proposition that a delay of one and a half to two years
between the protected activity and alleged retribution is too remote. Id. at 3-4. See,
e.g. Thomas v. CVS Pharmacy, 336 Fed. Appx. 913, 915 (11th Cir. 2009) (per
curiam) (three and a half months between protected activity and alleged retaliation
too remote to infer causation). The FCBOE’s contention is narrowly myopic
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Retaliation claims “must be proved according to the traditional principles
of but-for causation,” requiring “proof that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or actions of the employer.”
Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
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because it focuses solely on the filing date of the lawsuit and ignores that a lawsuit
also involves the prosecution of the actual case. In Witt’s case, she prosecuted the
lawsuit until at least February 28, 2013 when Judge Smith granted the FCBOE’s
summary judgment motion. See Doc. 10-1 at 2-3, 77; doc. 1 at 4. Given that the
alleged retaliatory activities occurred in November of 2012 and March of 2013,
doc. 1 at 3-4, during and immediately following Witt’s prosecution of the lawsuit,
under the legal standards asserted by the FCBOE, there is temporal proximity
between the protected activity and the alleged retaliatory conduct.
B. The alleged retaliatory conduct was not an adverse employment
action.
The FCBOE next argues that Witt’s complaint fails to state a claim upon
which relief can be granted because Witt has not shown that she suffered an
adverse employment action. Doc. 9 at 3. The retaliation provision of Title VII
“protects an individual not from all retaliation, but from retaliation that produces
an injury or harm.” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S.
53, 67 (2006). Accordingly, an adverse employment action is defined as an action
which would “dissuade[] a reasonable worker from making or supporting a charge
of discrimination.” Id. (internal citations and quotation marks omitted). Moreover,
“[t]he asserted impact cannot be speculative and must at least have a tangible
adverse effect on the plaintiff’s employment.” Davis v. Town of Lake Park, Fla.,
245 F.3d 1232, 1239 (11th Cir. 2001). Significantly, “not all conduct by an
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employer negatively affecting an employee constitutes adverse employment
action.” Id. at 1238 (citations omitted). This is because “Title VII[] is neither a
general civility code nor a statute making actionable the ‘ordinary tribulations of
the workplace.’” Id. at 1239 (quoting Gupta v. Florida Bd. of Regents, 212 F.3d
571, 587 (11th Cir. 2000)).
With these general principles in mind, the court turns now to Witt’s
complaint and the alleged retaliatory conduct. Specifically, Witt asserts that the
FCBOE (1) placed her on the work duty schedule twice during a six week period
rather than once, doc. 1 at ¶ 8, (2) placed her on the bus duty schedule despite
having notice that Witt’s medical conditions made it difficult for her to perform
bus duty, id. at ¶¶ 9-11, and (3) issued Witt a formal reprimand for calling police
officers to her classroom after a verbal threat by a student, id. at 13-14. Taken
individually, however, none of these alleged actions constitute an adverse
employment action. In fact, Witt has not pleaded any reduction in salary, change in
terms, conditions, or benefits of employment, or difference in work description or
work location. See Howard v. Walgreen Co., 605 F.3d 1239, 1245 (11th Cir. 2010)
(holding that a phone call threatening Plaintiff’s job did not rise to adverse
employment action because “nothing suggests, nor does [Plaintiff] argue . . .
[Defendant] took any action – including termination, demotion, or even a
reprimand – that could have seriously affected [Plaintiff’s] employment.”); Akins
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v. Fulton County, 420 F.3d 1293, 1301-02 (11th Cir. 2005) (holding that
unwarranted reprimands, a negative work evaluation, the threat of job loss, the
threat of suspension without pay, the removal of job duties, and exclusion from
meetings did not constitute adverse employment action); see also Edwards v.
National Vision, Inc., 568 Fed. Appx. 854, 862 (11th Cir. 2014) (assignment of
more patients and a formal reprimand are not an adverse employment action
because employee failed to present evidence that she was materially affected, such
as a reduction of salary); Grimes v. Miami Dade County, 552 Fed. Appx. 902, 905
(11th Cir. 2014) (no adverse employment action despite adjustment in job duties
because plaintiff “retained the same job description and work location and she did
not receive a lower salary or fewer benefits.”); Swindle v. Jefferson County Com’n,
No. 13-14050, 2014 WL 6678411 at *7-6 (11th Cir. Nov. 26, 2014) (no adverse
employment action when plaintiff was denied medical care and paid leave after
suffering a “panic attack” as a result of reprimand). As a matter of law, being asked
to do slightly more work than similarly situated colleagues (i.e. scheduled two
times in a six-week period) and to perform duties that are presumably included
within an employee’s job description (i.e. bus duty assignment), 3 and being

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While the assignment to bus duty may be in violation of the Americans with
Disabilities Act if Witt was, in fact, disabled, see Swain v. Hillsborough County
Sch. Bd., 146 F.3d 855, 858 (11th Cir. 1998) (“[e]mployers have no duty to
accommodate an employee if the employee is not disabled under the [Americans
with Disabilities Act (“ADA”)])(internal citations omitted), based on her pleadings
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reprimanded for cause simply does not rise to the level of an adverse employment
action. 4 See Davis, 245 F.3d at 1239. Therefore, because none of the alleged
actions undertaken by the FCBOE would have dissuaded a reasonable person from
making or supporting a charge of discrimination, Witt’s complaint does not
support a plausible claim for retaliation under Title VII and fails to state a claim
upon which relief can be granted.
To be certain, the court recognizes a cause of action for retaliatory
harassment that encompasses a pattern of employer actions, rather than one
disparate act, constituting retaliation, see Swindle, 2014 WL 6678411 at *7, and
agrees with Witt that the court should also consider the alleged actions of the
FCBOE as a collective whole, see doc. 9 at ¶¶ 7-8. In that regard, a plaintiff
claiming retaliatory harassment must show that “the workplace [wa]s permeated
it appears that performing bus duty is part of Witt’s assigned duties. As such,
without more in the complaint, the assignment itself alone cannot support a claim
for retaliation. Seldon v. Total System Serv’s, Inc., 653 F. Supp.2d 1349, 1378-79
(M.D. Ga. 2009)(where employee is not disabled under the [ADA], “no reasonable
person . . . could have considered [employer’s] alleged failure to adjust Plaintiff’s
work schedule . . . to be materially adverse.”)
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Witt contends that she received the reprimand for calling the police on a student.
The complaint is silent on the school’s normal procedures for handling such
incidents, and also makes no indication that other teachers engaged in similar
conduct without being reprimanded. Instead, Witt asserts simply that the FCBOE
issued the reprimand in retaliation for her lawsuit. Such conclusory allegations are
insufficient to satisfy the pleading standards. See, e.g. Burnet v. City of
Jacksonville, FL, 376 Fed. App’x 905, 906 (11th Cir. 2010) (“[C]onclusory
allegations, unwarranted deductions of facts [,] or legal conclusions masquerading
as facts will not prevent dismissal.”) (internal citation and quotation marks
omitted).
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with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the [plaintiff’s] employment or create an
abusive working environment.” Id., at *8 (quoting Gowski v. Peake, 682 F.3d
1299, 1311 (11th Cir. 2012)). The court examines the context and totality of the
circumstances, considering “(1) the frequency of the conduct; (2) the severity of
the conduct; (3) whether the conduct is physically threatening or humiliating, or a
mere offensive utterance; and (4) whether the conduct unreasonably interferes with
the employee’s job performance.” Gowski, 682 F.3d at 1312 (internal quotation
marks omitted). For the reasons stated above, Witt’s three distinct allegations,
taken as a whole, still fail to rise to a level such that they can be characterized as so
severe or pervasive that they altered the conditions of her employment or created
an abusive working environment. See Swindle, 2014 WL 6678411 at *6-7.
Consequently, because Witt’s allegations do not support the theory that the
FCBOE took adverse employment actions, or created a retaliatory harmful work
environment, Witt cannot state a prima facie claim under Title VII and, therefore,
her case is due to be dismissed for failure to “contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556
U.S. at 678 (citations and internal quotation marks omitted).

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III. CONCLUSION AND ORDER
For the reasons noted above, the FCBOE’s motion to dismiss is
GRANTED, and this case is DISMISSED without prejudice for failing to plead
sufficient facts to support a retaliation claim.

DONE the 19th day of December, 2014.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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