Raper v. Morgan County Board of Education et al

Filing 34

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the defendants' motion for summary judgment is GRANTED and all 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 3/13/2013. (AHI)

FILED
2013 Mar-13 PM 12:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
LARRY RAPER,
Plaintiff,
vs.
MORGAN COUNTY BOARD
OF EDUCATION, et al.,
Defendants.

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Civil Action No. CV-11-S-80-NE

MEMORANDUM OPINION AND ORDER
Plaintiff, Dr. Larry Raper, alleges that his employer, the Morgan County Board
of Education, as well as the individual members and superintendent of the Board,
engaged in age and gender discrimination in violation of the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”), Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), Title IX of the Equal
Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”), and the
Fourteenth Amendment.1 Plaintiff claims that he was passed over for a promotion as
the Board’s Director of the Program for Exceptional Students in favor of a lessqualified, younger female.2 Defendants have moved for summary judgment on all

1

See doc. no. 4 (Second Amended Complaint) ¶¶ 33-45.

2

Id. ¶ 20.

claims.3 Upon consideration of the parties’ briefs, arguments, and evidentiary
submissions, the motion for summary judgment will be granted.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that summary judgment “should
be rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).4 In other
words, summary judgment is proper “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).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). Even so, “an
inference is not reasonable if it is only a guess or a possibility, for such an inference
is not based on the evidence, but is pure conjecture and speculation.” Daniels v. Twin
3

Doc. no. 19 (Motion for Summary Judgment).

4

Rule 56 was amended, effective December 1, 2010, in conjunction with a general overhaul
of the Federal Rules of Civil Procedure. The Advisory Committee was careful to note, however, that
the changes “will not affect continuing development of the decisional law construing and applying
these phrases.” Adv. Comm. Notes to Fed. R. Civ. P. 56 (2010 Amends.). Consequently, cases
interpreting the previous version of Rule 56 are equally applicable to the revised version.

2

Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983). Moreover,
[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 jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (alteration supplied); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986).
II. FACTUAL BACKGROUND
The Morgan County Board of Education (“the Board”) is a public school
system in the State of Alabama. Mike Tarpley, Jimmy Dobbs, Carolyn Wallace, Tom
Earwood, Paul Holmes, Jeff McLemore, and Billy Rhodes are defendants in their
official capacities as members of the Board.5 The Board’s current superintendent,
Bill Hopkins, is also named as a defendant in his official capacity.6

Former

defendant Robert Balch served as superintendent of the Board from January 3, 2007
through December 31, 2010.7 The hiring decision in question was made during

5

See doc. no. 4 (Second Amended Complaint) ¶¶ 5-11. The second amended complaint
named Kenneth Henson as a defendant, id. ¶ 9, but he later resigned from the Board and was
replaced by Billy Rhodes. Pursuant to Fed. R. Civ. P. 25(d), Rhodes was automatically substituted
for Henson because the claims against Henson were made in his official capacity only. See doc. no.
21 (Brief in Support of Summary Judgment), at 14 n.5.
6

Doc. no. 4 (Second Amended Complaint) ¶ 4.

7

Doc. no. 21 (Brief in Support of Summary Judgment), at 9 n.4.

3

Balch’s tenure as superintendent. Plaintiff’s claims spring from his failure to receive
in 2009 a promotion to the position of Director of the Program for Exceptional
Students.
A.

Plaintiff’s Education and Experience
Plaintiff was born in 1949.8 He holds a B.S. degree in psychology from Athens

State College, and an M.S. degree in special education from Alabama A&M
University.9 Plaintiff’s master’s degree focused on learning disabilities.10 He
received an education specialist degree from Jacksonville State University, and his
doctorate in education administration from the University of Alabama.11 Plaintiff also
possesses an “A” certification in educational administration and an “AA” certification
in “special education, mild learning disabilities.”12
The Board hired plaintiff as a special education teacher for the sixth, seventh,
8

Doc. no. 20-1 (Deposition of Dr. Larry Raper), at 11-12.

9

See doc. no. 21 (Brief in Support of Summary Judgment), at “Statement of Undisputed
Facts” ¶ 20 (hereafter “Defendants’ Facts”); see also doc. no. 20-1 (Deposition of Dr. Larry Raper),
at 20-21; doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 1 (Ex. 1, Raper Resume). The record
is not clear what year plaintiff received his bachelor’s and master’s degrees, although he estimates
that he received his bachelor’s degree in 1987. Doc. no. 20-1 (Deposition of Dr. Larry Raper), at 2021.
10

Doc. no. 32 (Brief in Opposition to Summary Judgment), at “Additional Facts” ¶ 5
(hereafter “Plaintiff’s Facts”). The court will cite to the parties’ statements of fact, to the extent that
those statements are undisputed.
11

See Defendants’ Facts ¶ 20; Plaintiff’s Facts ¶ 6; see also doc. no. 20-1 (Deposition of Dr.
Larry Raper), at 24-27; doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 1 (Ex. 1, Raper
Resume).
12

Defendants’ Facts ¶ 20.

4

and eighth grades at Cotaco Junior High School in 1992.13 Before beginning his
employment, plaintiff attended workshops on “corrective reading” for students with
disabilities.14 Plaintiff’s classes at Cotaco were “self-contained” — i.e., the special
education students were grouped together in one classroom.15 He also coached
basketball at the school.16
Plaintiff moved from Cotaco Junior High School to Falkville High School in
2003, where he worked as a special education “inclusion” teacher for the seventh
through twelfth grades.17 “Inclusion” teachers enter general education classes that
contain students with and without disabilities, and “assist the regular teacher by
helping [the] students with disabilities.”18 Plaintiff also coached the boys’ basketball
team for seventh- and eighth-graders at Falkville.19 Plaintiff voluntarily transferred
to Brewer High School in 2011, where he teaches inclusion classes for grades nine
through twelve, and coaches basketball.20 During plaintiff’s tenure in the Morgan
County School System, he has taught students with emotional disorders, as well as
13

Id. ¶ 1

14

Doc. no. 20-1 (Deposition of Dr. Larry Raper), at 64-65.

15

Defendants’ Facts ¶ 2 & n.2.

16

Id. ¶ 3.

17

Id. ¶ 4.

18

Id. at 1 n.3 (alteration supplied).

19

Doc. no. 20-1 (Deposition of Dr. Larry Raper), at 51-52; see also Defendants’ Facts ¶ 6.

20

Defendants’ Facts ¶¶ 8, 10.

5

mental and physical disabilities.21 Plaintiff also has served children with autism and
attended a workshop on that disorder.22
Plaintiff has written several “behavior intervention plans.”23 Such plans are a
system of incentives instituted to modify problematic student behavior.24 Plaintiff
frequently utilized the “SETS database,” in which individualized education programs
(“IEPs”) for students with disabilities are written and stored.25 IEPs are designed to
identify and accommodate a disabled child’s needs, with the goal of facilitating
academic success in a standard educational environment.26 Plaintiff has drafted
dozens of IEPs during his employment with the Board.27
B.

Eva Junior High School Principal
Plaintiff applied for the principal position at Eva Junior High School in 2007.28

Sometime before his interview, plaintiff encountered then-Superintendent Balch at
a local Wal-Mart store.29 The two men struck up a conversation, during which Balch

21

See, e.g., Defendants’ Facts ¶¶ 2, 9.

22

Plaintiff’s Facts ¶¶ 4, 28; doc. no. 20-1 (Deposition of Dr. Larry Raper), at 61-62.

23

Doc. no. 20-1 (Deposition of Dr. Larry Raper), at 70-71.

24

Id. at 71.

25

Id. at 72-73.

26

Id. at 74.

27

Id. at 75.

28

Plaintiff’s Facts ¶ 7.

29

Doc. no. 20-1 (Deposition of Dr. Larry Raper), at 133-34.

6

commented that plaintiff was “getting on [up there] in age,” and asked “how long do
you think you’re going to be around?”30 Plaintiff responded that he intended to “be
around as long as [his] health is good.”31
Balch subsequently interviewed plaintiff for the Eva position.32 Plaintiff
offered Balch a copy of his resume at the beginning of the interview, but Balch
declined it, saying that he was familiar with plaintiff’s qualifications based on their
prior conversations.33 At one point, Balch asked plaintiff where he saw himself “five
years from now.”34 Plaintiff initially responded that he thought the question might
suggest an “underlying motive” regarding age, and then answered that he saw himself
“doing a great job” as the Eva principal five years into the future.35
Ultimately, Balch recommended Patrick Patterson for the position.36 Patterson
then was thirty-five years old, while plaintiff was fifty-eight.37
C.

Director of the Program for Exceptional Students

30

Id. at 133 (alteration supplied).

31

Id. (alteration supplied).

32

Plaintiff’s Facts ¶ 7.

33

Doc. no. 20-1 (Deposition of Dr. Larry Raper), at 28, 133.

34

Id. at 133.

35

Id. at 134.

36

See Plaintiff’s Facts ¶ 8.

37

Id.; doc. no. 20-1 (Deposition of Dr. Larry Raper), at 28 (noting that plaintiff was born in

1949).

7

Board employee Venita Jones served as the Director of the Program for
Exceptional Students (“the Director position” or “the position”) from 2004 until her
retirement at the end of the 2008-2009 school year.38 The Director oversees the
Board’s county-wide program that provides services to both special needs and gifted
students.39 For instance, the Director supervises all special education personnel,
monitors budgetary needs, and is responsible for organizing parent meetings,
eligibility meetings, and student referrals.40 The Board posted an opening for the
position, along with a job description and salary schedule, on June 1, 2009.41 The
Board maintains a hiring policy for all positions that states: “All other things being
equal, favorable consideration will be given to current employees who want to
transfer into [a] vacant position.”42
The minimum, mandatory qualifications for the Director position were: a
master’s degree; a superintendent/principal certification, or an “A” certification in
special education, psychometry, school psychology, or counseling; and five years of

38

Defendants’ Facts ¶ 11.

39

Plaintiff’s Facts ¶ 10.

40

Doc. no. 20-3 (Deposition of Robert Balch), at 16.

41

Defendants’ Facts ¶ 12; see also doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 1217 (Ex. 7, Job Posting, Description, and Salary Schedule).
42

Doc. no. 20-3 (Deposition of Robert Balch), at ECF 27 (Ex. 3, Hiring Policy) (alteration
supplied).

8

“successful work experience in some area of special education.”43 Additionally,
teaching experience with gifted students was desired because, under Alabama law,
special education programs encompass gifted education.44 The job description
contained twenty-six duties and responsibilities, including: project enrollment and
identify staff needs; assist with employee orientation; supervise special education
teachers and psychometrists; attend special education conferences; plan, implement,
and schedule special education programs; further awareness of and compliance with
legal standards for special education; and coordinate with the Department of
Transportation to identify transportation policies that fit students’ needs.45
Nine individuals applied for the position.46 Balch conducted interviews with
six applicants, including plaintiff.47 Each interview lasted between fifteen and thirty
minutes.48
1.

Plaintiff’s qualifications and interview

When the Director position became available, plaintiff asked Balch how to
43

Defendants’ Facts ¶ 12; see also doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 13
(Ex. 7, Job Posting, Description, and Salary Schedule).
44

Defendants’ Facts ¶¶ 14-15; doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 13 (Ex.
7, Job Posting, Description, and Salary Schedule).
45

Doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 13-15 (Ex. 7, Job Posting,
Description, and Salary Schedule).
46

Defendants’ Facts ¶ 16.

47

Id. ¶ 37; doc. no. 20-3 (Deposition of Robert Balch), at 31-32, 53.

48

Defendants’ Facts ¶ 38.

9

apply for the job.49 Balch told him to submit a request for transfer form, which
plaintiff promptly did.50 At the time of his application, plaintiff was sixty years old
and had been employed by the Board for seventeen years.51 He met the minimum
required qualifications for the position, although he did not have the desired
qualification of experience with gifted students.52
Balch interviewed plaintiff on June 30, 2009.53 Plaintiff brought his resume
to the interview.54 Balch did not ask for plaintiff’s resume, however, and plaintiff did
not volunteer it.55 Balch later testified that he assumed that candidates would
voluntarily submit a resume in order to demonstrate their qualifications.56
Conversely, plaintiff did not offer his resume, because Balch had declined it during
the 2007 interview for the Eva principal position on the ground that he was familiar
with plaintiff’s qualifications.57
Plaintiff and Balch did not recall many details of plaintiff’s interview during
49

Doc. no. 20-3 (Deposition of Robert Balch), at 49.

50

Id.; doc. no. 20-1 (Deposition of Dr. Larry Raper), at 151-52; see doc. no. 20-2 (Exhibits
to Raper Deposition), at ECF 18 (Ex. 8, Voluntary Transform Form).
51

Plaintiff’s Facts ¶¶ 16, 17.

52

Defendants’ Facts ¶ 20; doc. no. 20-1 (Deposition of Dr. Larry Raper), at 70 (admitting that
he has never taught gifted students and that he never took courses on gifted education).
53

See doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 19 (Ex. 9, Interview Schedule).

54

Doc. no. 20-1 (Deposition of Dr. Larry Raper), at 29.

55

Id.; doc. no. 20-3 (Deposition of Robert Balch), at 48.

56

Doc. no. 20-3 (Deposition of Robert Balch), at 48.

57

Doc. no. 20-1 (Deposition of Dr. Larry Raper), at 28-29.

10

their respective depositions.58 Balch assumed that he asked plaintiff several standard
questions, such as his current position, duties, and experience in different fields of
special education.59 Both men agreed that Balch tested plaintiff’s knowledge of a
recent Supreme Court decision involving special education, although neither could
recall the specific case.60 Plaintiff admitted that he was not aware of the case.61
Balch described plaintiff’s interview as “subpar at best.”62 Still, plaintiff felt
that Balch conducted the interview in a fair fashion, and that he did not demonstrate
a discriminatory animus.63
2.

Lana Tew’s education and experience

Lana Tew also applied for the Director position.64 She was thirty-eight years
old at the time of her application.65 She had majored in emotional conflict and mental
retardation at Jacksonville State University, where she received her B.S. degree in
1996.66 She also earned an M.S. degree in educational administration from the
58

See id. at 162-64; doc. no. 20-3 (Deposition of Robert Balch), at 21-22.

59

Doc. no. 20-3 (Deposition of Robert Balch), at 22-23.

60

Id. at 22-24; doc. no. 20-1 (Deposition of Dr. Larry Raper), at 162-64.

61

Doc. no. 20-1 (Deposition of Dr. Larry Raper), at 162; doc. no. 20-3 (Deposition of Robert
Balch), at 24.
62

Doc. no. 20-3 (Deposition of Robert Balch), at 23.

63

Defendants’ Facts ¶ 45

64

Plaintiff’s Facts ¶ 12.

65

Id. ¶ 14.

66

Defendants’ Facts ¶ 17; doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 20-21 (Ex.
10, Tew Resume).

11

University of Montevallo in 2002.67 She has held an “A” certification in educational
administration since 2002.68 Unlike plaintiff, she had experience teaching gifted
students.69
Tew had been either a special education teacher or special education “resource”
teacher for thirteen years when she applied for the Director position.70 She began her
career in 1996 as a “self-contained” special education teacher at Columbiana Middle
School in Shelby County, Alabama.71 She assumed the same position in 1998 at
Holtville High School in Elmore County, Alabama, but soon returned to Columbiana
Middle School as a gifted education teacher from 1999 to 2001.72 Tew then accepted
a position as a special education teacher with the Talladega County school system in
2001.73 That system promoted Tew to “preschool/elementary resource teacher” in
2004, a post that she held when the Director position in Morgan County became

67

Defendants’ Facts ¶ 17; doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 20-21 (Ex.
10, Tew Resume).
68

Defendants’ Facts ¶ 17.

69

Id. ¶¶ 19, 36.

70

Id. ¶ 23.

71

Doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 20-21 (Ex. 10, Tew Resume); doc.
no. 20-6 (Affidavit of Lana Tew) ¶ 4.
72

Doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 20-21 (Ex. 10, Tew Resume); doc.
no. 20-6 (Affidavit of Lana Tew) ¶¶ 5-6.
73

Doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 20-21 (Ex. 10, Tew Resume); doc.
no. 20-6 (Affidavit of Lana Tew) ¶ 7.

12

available.74 As a resource teacher, Tew helped Talladega County’s Special Education
Director provide system-wide services to special needs students.75 Accordingly,
Tew’s duties as a resource teacher varied from those of a traditional special education
teacher, as they were frequently administrative in nature.76 She mediated disputes and
complaints regarding the county’s special education program for preschool through
sixth grade.77 If a complainant contacted her superior directly, Tew would often be
dispatched to solve the problem.78 She worked with the county’s hearing-impaired
students to ensure that their assistive equipment functioned properly, and coordinated
with parents, organizations, and outside entities to procure teacher training and
student services.79 Tew organized “transitional” meetings for families whose children
needed special testing before enrolling in the local school system.80 She collaborated
with principals and directors throughout Talladega County to resolve special
education issues as they arose.81

74

Doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 20-21 (Ex. 10, Tew Resume); doc.
no. 20-6 (Affidavit of Lana Tew) ¶ 8.
75

Doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 20-21 (Ex. 10, Tew Resume); doc.
no. 20-4 (Deposition of Lana Tew), at 49.
76

Doc. no. 20-4 (Deposition of Lana Tew), at 56-57.

77

Id. at 49.

78

Id.

79

Id. at 49-52.

80

Id. at 50-51.

81

Id. at 51-52.

13

Those duties, along with Tew’s additional training, provided Tew with
experience in many areas that plaintiff lacked, as plaintiff had served only as a
classroom special education teacher.82 Tew participated in several professional
activities that plaintiff had not, including: receiving Alabama Reading Initiative
training; attending autism training sessions and workshops at Auburn University, the
University of Alabama, and the Mid South Reading and Writing Institute; taking
autistic students to the Riley Center for evaluation; and participating in dyslexia
training in order to identify different types of the disorder.83 Additionally, Tew had
coordinated and collected data for a standardized test given to incoming and outgoing
preschool students; utilized a speech-improvement lab; operated “augmentative
communication devices” for non-verbal students and sound amplification systems for
hearing-impaired students; and conducted meetings to determine whether students
were eligible for special education.84
3.

Tew’s interview

Tew’s education and experience qualified her for the Director position.85 Balch
interviewed Tew on June 30, 2009.86 Unlike plaintiff, she had provided a resume
82

Defendants’ Facts ¶¶ 24, 26.

83

Id. ¶¶ 27-28, 30, 34

84

Id. ¶¶ 29, 31-33, 35.

85

Id. ¶ 17.

86

See doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 19 (Ex. 9, Interview Schedule).

14

prior to her interview as part of her application.87 Balch asked Tew about her
experience and work history.88 He inquired whether she was familiar with the
Individuals with Disabilities Education Act (“IDEA”), which she was.89 Tew
recounted her previous dealings with legal issues — “due process complaints” — that
related to the IDEA.90 She mentioned that autism is the most litigated issue in special
education law, and referenced then-recent legal cases involving special education,
although she could not recall the exact cases during her deposition testimony.91
Balch noticed from Tew’s resume that she had extensive experience in
numerous areas of special education, such as autism, assistive technology, and
corrective reading programs.92 Balch also saw that Tew had undergone several types
of training related to enhancing the literacy skills of students with disabilities.93 Her
resume indicated her experience with different kinds of disabilities, and highlighted
her familiarity with educational tools and programs used by and designed for special

87

Doc. no. 20-5 (Affidavit of Rober Balch) ¶ 6; doc. no. 20-2 (Exhibits to Raper Deposition),
at ECF 20-21 (Ex. 10, Tew Resume).
88

Doc. no. 20-4 (Deposition of Lana Tew), at 14.

89

Id.

90

Id. at 17-18.

91

Id. at 36-37, 39.

92

Doc. no. 20-3 (Deposition of Robert Balch), at 55.

93

Defendants’ Facts ¶ 42.

15

education students.94
4.

Balch’s recommendation and the Board’s vote

Balch recommended Tew to the Board for the Director position at the
conclusion of the interview process.95 Balch based his recommendation on the
experience demonstrated by Tew’s application and resume, and her superior interview
performance.96 She had extensive training in programs and equipment used for
students with disabilities.97 She demonstrated a firm grasp of a variety of special
education issues, such as IEPs, behavior plans, professional development for teachers,
eligibility meetings, data collection, autism education, and instruction for gifted
students.98 Moreover, Tew exhibited a firm grasp of special education law in her
interview.99 In sum, Tew’s interview was “exceptional” and, along with her resume,
demonstrated to Balch that she was an “impressive applicant on all issues.”100
Further, Balch testified that he would not have recommended plaintiff to the
Board over other candidates, because Raper did not provide a resume, had less

94

Id.

95

Id. ¶¶ 41, 47.

96

Doc. no. 20-5 (Affidavit of Robert Balch) ¶ 8.

97

See, e.g., Defendants’ Facts ¶¶ 27, 30-33; doc. no. 20-3 (Deposition of Robert Balch), at

98

Doc. no. 20-5 (Affidavit of Robert Balch) ¶ 13; see also Defendants’ Facts ¶¶ 28-29, 35-36.

99

Doc. no. 20-5 (Affidavit of Robert Balch) ¶ 14.

65-66.

100

Id.; doc. no. 20-3 (Deposition of Robert Balch), at 61.

16

knowledge about certain areas of special education, and was not aware of recent
developments in special education law, and because other candidates had better
interviews.101 Additionally, Balch felt that the Board’s policy of giving favorable
consideration to current employees over outside applicants when all other factors
were equal did not apply, because he did not perceive plaintiff and Tew as equally
qualified.102
On either the afternoon or evening before the Board voted on Balch’s
recommendation, plaintiff received a telephone call from Board member (and former
defendant) Betty Hackett.103 Hackett informed plaintiff that, in her opinion, he was
more qualified than Tew and, therefore, she would be voting against Balch’s
recommendation.104

Plaintiff could not remember the exact details of their

conversation, but he recalled an opaque comment from Hackett about how “we” are
getting older and that people “take[] us [less] seriously.”105 Plaintiff interpreted
Hackett’s comment “[m]ainly [as] referring to her[self].”106
The Board approved Balch’s recommendation of Tew on July 9, 2009, by a
101

Doc. no. 20-5 (Affidavit of Robert Balch) ¶ 16; Defendants’ Facts ¶ 46.

102

Doc. no 20-3 (Deposition of Robert Balch), at 60-61; see also id. at ECF 27 (Ex. 3, Hiring

Policy).
103

Doc. no. 20-1 (Deposition of Dr. Larry Raper), at 189.

104

Id. at 189-90.

105

Id. at 202-03 (alterations supplied).

106

Id. at 203 (alterations supplied).

17

vote of five to two.107 Board members Hackett and Kenneth Henson voted against the
recommendation.108 Plaintiff learned of the Board’s decision the next day from a
report in the local paper, as well as an official letter from Balch.109 Plaintiff does not
claim that the individual Board members acted with discriminatory intent; instead, he
maintains that they supported Balch’s recommendation without considering plaintiff’s
qualifications.110
III. DISCUSSION
A.

Plaintiff’s Abandoned Claims
Plaintiff has explicitly abandoned his claims for gender discrimination under

Title VII, Title IX, and the Fourteenth Amendment by way of 42 U.S.C. § 1983.111
Consequently, summary judgment is due to be granted on the claims alleged in
Counts II and III of his complaint. The individual defendants also are due to be
dismissed from the action because no claims remain against them. Plaintiff’s only
remaining claim is against the Board for age discrimination.
B.

Plaintiff Has Not Provided Direct Evidence of Age Discrimination
107

Defendants’ Facts ¶ 48

108

Plaintiff’s Facts ¶ 19; see also doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 31
(Ex. 14, Minutes of Board Meeting).
109

Defendants’ Facts ¶ 49.

110

Id. ¶ 62.

111

Doc. no. 32 (Brief in Opposition to Summary Judgment), at 4 n.1; see also doc. no. 33
(Reply Brief in Support of Summary Judgment), at 3.

18

A plaintiff may prove an ADEA claim for age discrimination by using direct
evidence. See Mora v. Jackson Memorial Foundation, Inc., 597 F.3d 1201, 1204
(11th Cir. 2010). Plaintiff argues that three facts provide direct evidence of age
discrimination: i.e., Balch’s 2007 remark at the Wal-Mart store that plaintiff was
“getting on [up there] in age,” and his inquiry as to how long plaintiff thought he was
“going to be around”; Balch’s question during plaintiff’s 2007 interview for the Eva
position about where plaintiff saw himself in five years; and Board member Hackett’s
statements on the eve of the Board’s vote on the Director position that plaintiff was
more qualified than Tew, and that older people are taken less seriously.112
“Direct evidence is evidence that establishes the existence of discriminatory
intent behind the employment decision without any inference or presumption.”
Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). As the
Eleventh Circuit has frequently noted, “only the most blatant remarks, whose intent
could mean nothing other than to discriminate on the basis of some impermissible
factor constitute direct evidence of discrimination. If the alleged statement suggests,
but does not prove, a discriminatory motive, then it is circumstantial evidence.”
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (emphasis
supplied) (internal citations and quotation marks omitted).
112

See doc. no. 32 (Brief in Opposition to Summary Judgment), at 13, 16-17.

19

Plaintiff has not presented direct evidence of discrimination. Direct evidence
must connect the employer’s or decision-maker’s discriminatory attitude with the
relevant employment decision. Wright v. Southland Corp., 187 F.3d 1287, 1294
(11th Cir. 1999); see also Ritchie v. Industrial Steel, Inc., 426 F. App’x 867, 871-72
(11th Cir. 2011) (per curiam). Balch’s remarks to plaintiff related to the Eva
principal position and occurred two years before the Director position became
available. Additionally, Balch’s comments do not rise to the level of explicitness
present in cases that have found direct evidence to exist: e.g., “[we] didn’t want to
hire any old pilots,” Mora, 597 F.3d at 1204-05 (alteration supplied); “fire Early – he
is too old,” Dixon v. The Hallmark Companies, Inc., 627 F.3d 849, 854-55 (11th Cir.
2010); “Ritchie is too old to work as a truck driver,” Ritchie, 426 F. App’x at 871-72;
and “we will get . . . someone younger to take [plaintiff’s] place,” Newsome v.
KwangSung America, Corp., 798 F. Supp. 2d 1291, 1297-98 (M.D. Ala. 2011)
(alteration supplied). See also, e.g., Merritt v. Dillard Paper Co., 120 F.3d 1181,
1189-90 (11th Cir. 1997) (compiling examples of statements constituting direct
evidence). Instead, Balch’s statements merely alluded to plaintiff’s age without
expressly indicating that it would factor into Balch’s decision.
Board member Hackett’s comments to plaintiff were related to the relevant
employment decision. However, plaintiff admitted that he interpreted her remark
20

about older individuals not being taken seriously as referring to herself, rather than
referring to him.113 Further, although her statements are relevant to the issue of
discriminatory intent, they suffer from the same lack of directness as Balch’s
questions. Hackett’s statements may suggest, in a roundabout fashion, that some
members of the Board held a discriminatory motive, but that is not the only possible
construction of her comments. Hence, they are circumstantial evidence. See Wilson,
376 F.3d at 1086.
C.

The McDonnell Douglas Framework
Traditionally, the Eleventh Circuit has applied the McDonnell Douglas

framework to ADEA claims that rely on circumstantial evidence. Under that
framework, the plaintiff bears the initial burden of establishing a prima facie case.
See, e.g., Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc)
(“One method a plaintiff can use to establish a prima facie case for an ADEA
violation is by showing that he (1) was a member of the protected age group, (2) was
subjected to adverse employment action, (3) was qualified to do the job, and (4) was
replaced by or otherwise lost a position to a younger individual.”). “If a plaintiff
establishes a prima facie case . . . the employer must articulate a legitimate,
nondiscriminatory rationale for the [contested employment action]. If the employer
113

Doc. no. 20-1 (Deposition of Dr. Larry Raper), at 203.

21

does so, the burden shifts back to the plaintiff to prove that the employer’s asserted
reason is pretextual.” Young v. General Foods Corp., 840 F.2d 825, 828 (11th Cir.
1988) (alteration supplied); see also Chapman, 229 F.3d at 1024.
The parties’ briefs suggest that the Supreme Court’s decision in Gross v. FBL
Financial Services, Inc., 557 U.S. 167 (2009), either repudiated the application of the
McDonnell Douglass framework to ADEA cases, or provided an additional standard
for such cases.114 In point of fact, however, the majority opinion in Gross (a 5-4
decision) addressed a narrow question — i.e., “whether a plaintiff must present direct
evidence of age discrimination in order to obtain a mixed-motives jury instruction in
a suit brought under the [ADEA],” id. at 169-70 (alteration supplied) — and held that
a plaintiff bringing a disparate-treatment claim pursuant to the ADEA
must prove, by a preponderance of the evidence, that age was the
“but-for” cause of the challenged adverse employment action. The
burden of persuasion does not shift to the employer to show that it
would have taken the action regardless of age, even when a plaintiff has
produced some evidence that age was one motivating factor in that
decision.
Id. at 180. The majority’s opinion in Gross noted that the Court had not “definitively
decided” whether the McDonnell Douglas framework “is appropriate in the ADEA

114

Doc. no. 32 (Brief in Opposition to Summary Judgment), at 17-18 (suggesting that Gross
eliminated the application of McDonnell Douglas to ADEA cases); doc. no. 21 (Brief in Support of
Summary Judgment), at 28-29 (providing analysis under the Gross standard after discussing the
McDonnell Douglas framework).

22

context.” Id. at 175 n.2.115 Therefore, until such time as Congress or the Supreme
Court provide an unequivocal answer to that question, this court will follow binding
authorities, such as the Supreme Court’s opinion in Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000), which recognized the widespread application of
the McDonnell Douglas framework to ADEA claims that are based on circumstantial
evidence. Id. at 141-42 (citing O’Connor v. Consolidated Coin Caterers Corp., 517
U.S. 308, 311 (1996) (assuming that McDonnell Douglas analytical framework
115

Specifically, the majority opinion in Gross appended this footnote to the textual statement
observing that, as a result of the 1991 Congressional amendments to Title VII and the ADEA, the
Court’s interpretation of the ADEA was not governed by Title VII decisions such as Desert Palace,
Inc. v. Costa, 539 U.S. 90 (2003), and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989):
Justice STEVENS argues that the Court must incorporate its past
interpretations of Title VII into the ADEA because “the substantive provisions of the
ADEA were derived in haec verba from Title VII,” post, at [129 S. Ct.] 2354
(dissenting opinion) (internal quotation marks omitted), and because the Court has
frequently applied its interpretations of Title VII to the ADEA, see post, at 23542356. But the Court’s approach to interpreting the ADEA in light of Title VII has not
been uniform. In General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 124
S. Ct. 1236, 157 L. Ed. 2d 1094 (2004), for example, the Court declined to interpret
the phrase “because of . . . age” in 29 U.S.C. § 623(a) to bar discrimination against
people of all ages, even though the Court had previously interpreted “because of . .
. race [or] sex” in Title VII to bar discrimination against people of all races and both
sexes, see 540 U.S., at 584, 592, n.5, 124 S. Ct. 1236. And the Court has not
definitively decided whether the evidentiary framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), utilized in Title VII
cases is appropriate in the ADEA context. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000);
O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311, 116 S. Ct. 1307,
134 L. Ed. 2d 433 (1996). In this instance, it is the textual differences between Title
VII and the ADEA that prevent us from applying Price Waterhouse and Desert
Palace to federal age discrimination claims.
Gross, 557 U.S. at 170 n.2.

23

applies to ADEA claims based on circumstantial evidence)); see also, e.g., Chapman,
229 F.3d at1024 (applying McDonnell Douglas framework to ADEA claim based on
circumstantial evidence); Bogle v. Orange County Board of County Commissioners,
162 F.3d 653, 656 (11th Cir. 1998) (same); Turlington v. Atlanta Gas Light Co., 135
F.3d 1428, 1432 (11th Cir. 1998) (same); Hairston v. Gainesville Sun Publishing Co.,
9 F.3d 913, 919 (11th Cir. 1993) (same); Clark v. Coats & Clark, Inc., 990 F.2d 1217
(11th Cir. 1993) (same); Mitchell v. Worldwide Underwriters Insurance Co., 967 F.2d
565, 566 (11th Cir. 1992) (same); Alphin v. Sears, Roebuck & Co., 940 F.2d 1497,
1500 (11th Cir. 1991) (same); Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.
1989) (same); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 (11th Cir. 1987)
(same).
Since June 18, 2009, the date on which the Gross decision was handed down,
the Eleventh Circuit has not issued a published opinion that directly addresses the
question of whether the McDonnell Douglas framework applies to ADEA actions.
Even so, the Circuit’s unpublished, post-Gross decisions continue to utilize the
McDonnell Douglas standard. See, e.g., Ostrow v. GlobeCast America Inc., 489 F.
App’x 433, 435-36 (2012) (per curiam) (applying McDonnell Douglas because it is
consistent with Gross’s “but-for” standard); Horn v. United Parcel Services, Inc., 433

24

F. App’x 788, 793 (11th Cir. 2011) (per curiam) (same).116 Accordingly, this court
shall do the same.
The Board conceded, for purposes of summary judgment, that plaintiff has
proved a prima facie case of age discrimination.117 As a result, the burden shifted to
the Board to articulate legitimate, non-discriminatory reasons for selecting Tew over
plaintiff. See, e.g., Denney v. City of Albany, 247 F.3d 1172, 1183 (11th Cir. 2001).
The Board’s burden of production is “exceedingly light.” Cooper v. Southern Co.,
390 F.3d 695, 725 (11th Cir. 2004). The Board presented sufficient evidence to
satisfy that burden by stating that Tew had superior training and experience, and her
interview performance was superior to plaintiff’s.118
Thus, the burden shifted back to plaintiff to present evidence (including
evidence establishing his prima facie case) showing that the Board’s stated reasons
for hiring Tew were not the real reasons, but were merely a pretext for intentional
116

See also Mitchell v. City of Lafayette, No. 12-12556, 2013 WL 310063, *1, 4 (11th Cir.
Jan. 28, 2013) (per curiam) (ostensibly applying both McDonnell Douglas and Gross, but
functionally treating plaintiff’s inability to satisfy McDonnell Douglas as failure to prove “but-for”
causation under Gross); Vahey v. Philips Electronics North America Corp., 461 F. App’x 873, 874,
876 (11th Cir. 2012) (per curiam) (same); Ehrhardt v. Haddad Restaurant Group, Inc., 443 F. App’x
452, 454, 456 (11th Cir. 2011) (per curiam) (same).
117

Doc. no. 21 (Brief in Support of Summary Judgment), at 18 n.7.

118

See doc. no. 21 (Brief in Support of Summary Judgment), at 18-19 (stating the Board’s
reasons for hiring Tew); Defendants’ Facts ¶¶ 22-24, 26-36, 42, 46 (proving factual support for the
Board’s reasons); doc. no. 20-3 (Deposition of Robert Balch), at 61, 65-66 (same); doc. no. 20-4
(Deposition of Lana Tew), at 17-18, 36-37, 39, 49-52 (same); doc. no. 20-5 (Affidavit of Robert
Balch) ¶¶ 8, 13-14 (same).

25

discrimination on the basis of plaintiff’s age. See, e.g., Combs v. Plantation Patterns,
106 F.2d 1519, 1528 (11th Cir. 1997). To bear that burden, plaintiff cannot simply
quarrel with the Board’s stated reasons, but must meet them head on and rebut them.
Wilson, 376 F.3d at 1088. He must show that each of the proffered reasons are false,
and that discrimination was the real reason for the Board’s decision. See Brooks v.
County Commissioner of Jefferson County, 446 F.3d 1160, 1163 (11th Cir. 2006);
Jackson v. State of Alabama Tenure Commission, 405 F.3d 1276, 1289 (11th Cir.
2005).
Further, when, as here, a defendant claims it hired the more qualified candidate,
the plaintiff cannot show pretext “by simply arguing or even by showing that he was
better qualified than the [individual] who received the position he coveted.” Brooks,
446 F.3d at 1163 (quoting Alexander v. Fulton County, 207 F.3d 1303, 1339 (11th
Cir. 2000)) (alteration supplied). Instead, the plaintiff must “show that the disparities
between the successful applicant’s and [his] own qualifications were ‘of such weight
and significance that no reasonable person, in the exercise of impartial judgment,
could have chosen the candidate selected over the plaintiff.’” Brooks, 446 F.3d at
1163 (quoting Cooper, 390 F.3d at 732, and citing Ash v. Tyson Foods, 546 U.S. 454,

26

457 (2006)) (emphasis supplied).119
Plaintiff cannot meet that standard. Plaintiff is correct that he had four more
years of teaching experience than Tew, and that he had attained a higher level of
education.120 But those are only two data points picked out of an array of qualities.
As recounted in Part II.C.2. of this opinion, supra, there is extensive evidence that
Tew had training and experience in areas that plaintiff lacked.121
Plaintiff attempts to minimize the significance of Tew’s administrative
experience as a resource teacher in Talladega County by arguing that “every senior
ranking classroom instructor” performs similar duties.122 The facts do not support
that argument. The record shows that Tew performed administrative duties as a
resource teacher that plaintiff did not undertake in his role as a classroom teacher:
119

In Ash, the Supreme Court disapproved of the standard previously employed by the
Eleventh Circuit: i.e., that “[p]retext can be established through comparing qualifications only when
‘the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the
face.’” Id. at 456-57 (alteration supplied) (internal citations omitted). Even so, the Supreme Court
approved of the standard that this Circuit employed elsewhere: i.e., “that ‘disparities in
qualifications must be of such weight and significance that no reasonable person, in the exercise of
impartial judgment, could have chosen the candidate selected over the plaintiff for the job in
question.’” Id. at 457 (citing Cooper, 390 F.3d at 732).
120

See Defendants’ Facts ¶¶ 22-23; Plaintiff’s Facts ¶¶ 24, 26; see also doc. no. 21 (Brief in
Support of Summary Judgment), at 23 n.10
121

See Defendants’ Facts ¶¶ 24, 26-36; compare doc. no. 20-4 (Deposition of Lana Tew), at
49-52, 56-58; doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 20-21 (Ex. 10, Tew Resume);
doc. no. 20-6 (Affidavit of Lana Tew) ¶ 9 with doc. no. 20-1 (Deposition of Dr. Larry Raper), at 6170; doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 1 (Ex. 1, Raper Resume).
122

Doc. no. 32 (Brief in Opposition to Summary Judgment), at 24; see also doc. no. 20-1
(Deposition of Dr. Larry Raper), at 182-83.

27

e.g., mediating disputes and complaints about the county’s special education program;
providing system-wide special education services; training new teachers; ensuring
that assistive equipment functioned properly; coordinating with parents,
organizations, and outside entities to procure teacher training and student services;
and collaborating with principals and directors throughout the county.123
Plaintiff highlights his doctoral degree, and contrasts it to the fact that Tew had
attained only a master’s degree.124 But a doctorate was not a required, or even a
desired, qualification for the Director position.125 To the extent that plaintiff believes
a doctoral degree should have been a qualification, or that Balch and the Board
should have given greater weight to the fact that he held such a degree, he merely
questions their business judgment. See Chapman, 229 F.3d at 1030. Conversely,
experience with gifted students was a preferred qualification, and one that Tew
possessed, but plaintiff lacked.126
Those facts support the Board’s position that Tew was the more qualified
123

See doc. no. 20-4 (Deposition of Lana Tew), at 49-52, 56-58; compare doc. no. 20-2
(Exhibits to Raper Deposition), at ECF 1 (Ex. 1, Raper Resume) with id. at ECF 20-21 (Ex. 10, Tew
Resume).
124

Doc. no. 32 (Brief in Opposition to Summary Judgment), at 24, 26.

125

See doc. no. 20-2 (Exhibits to Raper Deposition), at ECF 13 (Ex. 7, Job Posting,
Description, and Salary Schedule).
126

Defendants’ Facts ¶¶ 14-15, 36; doc. no. 20-1 (Deposition of Dr. Larry Raper), at 70; doc.
no. 20-2 (Exhibits to Raper Deposition), at ECF 13 (Ex. 7, Job Posting, Description, and Salary
Schedule); doc. no. 20-6 (Affidavit of Lana Tew) ¶ 6.

28

candidate, as well as Balch’s conclusion that the Board’s policy of favoring internal
candidates did not apply, because the qualifications of the candidates were not equal.
Even assuming that plaintiff’s doctoral degree and four additional years of teaching
experience rendered him more qualified than Tew, he cannot show that the disparities
between them were “of such weight and significance that no reasonable person” could
have selected Tew. Brooks, 446 F.3d at 1163 (emphasis supplied).
The Board’s second proffered reason for hiring Tew was that her interview was
superior. Plaintiff must show that each legitimate, non-discriminatory reason for
hiring Tew was pretextual. See Brooks, 446 F.3d at 1163. Because he has not done
so regarding the Board’s contention that Tew was more qualified, the court need not
address plaintiff’s argument that hiring Tew on the basis of her superior interview
was pretextual.
IV. CONCLUSION AND ORDER
For all the foregoing reasons, defendants’ motion for summary judgment is
GRANTED,127 and all claims are DISMISSED with prejudice. Costs are taxed to
plaintiff. The clerk is directed to close this file.
DONE and ORDERED this 13th day of March, 2013.

127

Doc. no. 19 (Motion for Summary Judgment).

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______________________________
United States District Judge

30